R v Allison[2003] QCA 125

SUPREME COURT OF QUEENSLAND

[1]  McMURDO P:  I agree with Jerrard JA's reasons for dismissing the appeal against conviction and wish only to add these brief observations.

[2] The appellant's barrister would have been prudent to ensure that his instructing clerk was present when he took instructions from his client, especially important instructions concerning the plea.  All experienced practitioners in the criminal law recognise the wisdom of ensuring instructions, changes in instructions and especially instructions as to the plea are in writing and witnessed to avoid subsequent costly and distressing investigations such as those undertaken here.  I am satisfied, however, that, despite the absence of written instructions and any evidence from the instructing clerk, who apparently could not be located on the day of the appeal, the barrister was an honest and reliable witness and that his account should be preferred to that of the appellant.  I emphasise that signed instructions properly witnessed by the barrister's instructing clerk would almost certainly have avoided this whole unfortunate exercise.

[3] The appellant does not contend and it does not appear that that the substantial intervention by the trial judge[1] affected the jury verdict or caused a miscarriage of justice.

[4] I agree with Jerrard JA's reasons as to sentence and with the orders he proposes.

[5]  JERRARD JA:  On 23 October 2002, Gary Allison was convicted by a jury in the Brisbane District Court on a charge of having unlawfully assaulted and caused bodily harm to Dugald Alan Walcott Johnston on 9 October 2000.  Mr Allison, who has some previous convictions for less serious offences spread over the past 22 years, was sentenced to 18 months imprisonment.  He has appealed against that conviction, by notice dated 24 October 2002, on the ground that the flagrant incompetence of his counsel deprived him of a significant possibility of an acquittal.  He also seeks leave to appeal against his sentence, arguing that it was out of all proportion to his conduct and ignored his prior exemplary work history; and that the learned sentencing judge had regard to an irrelevant matter. 

The Complaint on Appeal

[6] On the hearing of the appeal, senior counsel for the appellant did not persist with the complaint that the asserted flagrant incompetence of trial counsel deprived Mr Allison of a significant possibility of an acquittal.  Instead, the complaint made on appeal was that Mr Allison’s barrister deprived Mr Allison of the opportunity to plead guilty, by failing to tell Mr Allison on the first day of the trial, and before it started, that the Crown Prosecutor had told the trial counsel outside the court, that morning, that if Mr Allison pleaded guilty, even at that late stage, the prosecutor would not be pressing for a custodial sentence.  Mr Allison complains he learnt of this offer made at that time only during conversations with his counsel held while the jury was deliberating, and just before it returned with the verdict of guilty.  The appellant deposed on the appeal that:

“I was shocked that he didn’t tell me, as there is absolutely no doubt I would have taken up the offer.”

[7] That reworked ground of appeal against conviction is made on the basis of a complaint that Mr Allison was not given timely information about what he would have regarded as an adequate incentive to plead guilty.  Apart from the incongruity of this complaint, pointed out by the President during the hearing, it raises issues of fact and on Mr Allison’s version of those, also raises the critical issue of the circumstances in which, if ever, counsel can represent with propriety a person who wants to enter a plea of guilty to a serious charge, but who maintains he or she is innocent of it.

[8] The appellant’s other complaints made on appeal about his barrister at the trial were that the barrister made without instructions serious, and unfounded, allegations against witnesses, and had, for no perceivable forensic advantage, elicited evidence of other assaults upon the complainant, which were not part of the Crown case; and all of which conduct by counsel had a “grossly detrimental” effect upon the sentence imposed on the appellant.  Put together, those matters were relied on to support the assertion of flagrant incompetence which had led to a miscarriage of justice.

The Crown Case

[9] An understanding of the Crown case and the course of the trial is necessary for an assessment of the grounds of appeal.  In support of them, the appellant and his fiancée gave affidavit and oral evidence on his behalf in the appeal, and his trial counsel did likewise in reply to the criticisms made about conduct of the appellant’s interests and his case.  Additionally, an affidavit was read from the Crown Prosecutor, confirming that the Crown did represent before the trial started that on a plea entered then, the Crown would submit only that a custodial sentence was available, and not that it was required.

[10]  At the time of the alleged assault Mr Allison was employed as a tow truck driver for Ready Towing.  Mr Johnston had been employed in the past by Ready Towing, and had been a co-employee with Mr Allison.  Mr Johnston left Ready Towing in November 1999, and took up a position with Pacific Towing.  So apparently did other employees of Ready Towing, who had “set Pacific Towing up over a weekend” (AR 83).

[11]  The charge against Mr Allison arose out of an incident at the corner of Mary and Edward Streets in the City of Brisbane.  A Falcon Sedan car and a blue and white Taxi had collided.  A Ready Towing tow truck driven by a Dale Ferguson (who had been a co-employee of both Mr Allison and Mr Johnston) was the first tow truck to arrive, and Mr Ferguson obtained authority to tow the Falcon.  Mr Johnston arrived next, driving a Pacific Towing tow truck, and since the owner of the Taxi was an account customer of Pacific Towing, obtained authority to tow the Taxi.  Then Mr Allison arrived.  He parked his tow truck such that Mr Johnston was unable to move his towards the Taxi, and Mr Allison did not move his truck when asked to do so by Mr Johnston.  Mr Johnston spoke with the police at the scene, and when they directed Mr Allison to move his truck, he did.

[12]  Mr Johnston then set about preparing the Taxi for towing, which would be by lifting its front end.  He reversed his truck to the Taxi and “strapped” the passenger side only of the Taxi.  He did this to keep himself away from Mr Allison, whom he was avoiding for an undisclosed reason, and who was standing on the driver’s side of that Taxi.  Mr Johnston then walked down the passenger side of the Taxi, and around into the cabin of his truck.  At that stage he recalled Mr Allison standing between Mr Johnston’s truck and the Taxi, and on the driver’s side of those vehicles.

[13]  Mr Johnston’s evidence was that as he got into his vehicle Mr Allison made a comment to the effect that he hoped Mr Johnston’s health insurance was up to date.  Mr Johnston replied that he “was not interested”, and got in.  He intended to drive his tow truck some small distance down the road and away from Mr Allison, and then complete “strapping” the load.  Instead, as he was readying his truck to drive off, he felt a hard object hit his face.

[14]  The blow briefly rendered him dazed and confused and with blurred vision.  He saw Mr Allison standing beside his (Mr Johnston’s) truck, and Mr Johnston said “Gary, that was stupid”.  He recalled that Mr Allison replied “there’s a lot of blood there, you should get that checked out”.  Mr Johnston then realised that his shirt was covered in blood on the right hand side, and he got out of the vehicle.  Mr Allison stepped back and let him pass.  Mr Johnston then went to where Mr Ferguson was standing in company with the occupants of the Falcon car.

[15]  Mr Johnston did not see what hit him. His opinion and the Crown case was that it was Mr Allison.  The prosecution called one of the passengers from the Falcon car, who gave evidence of a complaint made at the scene by Mr Johnston, that “the fellow just hit me”; and that witness saw blood “all over” Mr Johnston’s shirt and that his face appeared injured.  Mr Ferguson’s evidence supported the prosecution case, in that he recalled seeing Mr Allison arrive and park his tow truck, and then saw Mr Allison move it.  He next saw Mr Allison standing next to Mr Johnston’s truck when Mr Johnston was in his truck, and Mr Allison appeared to be speaking to Mr Johnston.  Mr Allison had his “closed hands” up around the area of his chest.  Mr Ferguson next heard Mr Johnston call out (to Mr Ferguson), and he saw that Mr Johnston had blood on his shirt and pants.  Mr Allison was seen to drive off.

[16]  Mr Johnston’s evidence was that he suffered from headaches after receiving that blow and head pain.  Medical evidence was that he had a fracture of the floor of the right orbit, and bruising and lacerations to the upper and lower right eyelids.  That medical evidence described what he had suffered as a “blow out” fracture, a type commonly caused by a fist or a bottle.  A swinging blow with the right hand would produce the injury suffered.

What Happened at the Trial

[17]  Mr Allison did not give evidence at the trial.  The defence advanced on his behalf was that Mr Johnston had injured himself in some fashion whilst connecting up the Taxi for towing, and had quite deliberately falsely accused Mr Allison of assault.  The conduct of that defence by counsel involved a sustained attack in cross examination upon Mr Johnston’s credit, and the assertion was repeatedly put, relative to a number of the topics upon which Mr Johnston was cross examined, that he did not take responsibility for his actions, and blamed others for their consequences.  The ultimate point was the suggestion that blaming Mr Allison for Mr Johnston’s self inflicted injury was simply another example of Mr Johnston shifting responsibility onto another.

[18]  Matters upon which Mr Johnston was cross examined included the following ones:

●  That he had been asked to leave Ready Towing in 1997 (after joining it in 1995) and before subsequently rejoining it in 1999.

●  That he had complained to police about actions of other employees of Ready Towing committed since the formation of Pacific Towing, and which complaints have not resulted in any charges being laid (to his knowledge) by the police.  Those complaints included a complaint of an alleged assault upon him by a different Ready Towing driver, allegedly committed at Windsor some three or four weeks before 9 October 2000, in which Mr Johnston’s shirt was allegedly torn; a complaint of another assault upon him allegedly committed at Enoggera some three weeks after 9 October 2000, by a different driver again from Ready Towing; and complaint of damage to the door of his truck by Mr Mark Ready, allegedly committed a week or two before 9 October 2000.

●  That he had a conviction for stealing incurred on 12 June 1996 in respect of a CD Player left in a vehicle.  Mr Johnston’s evidence was that he pleaded guilty to that charge on legal advice, although his account of the circumstances in evidence was not an admission to, or description of, stealing.  The Magistrate had recorded a conviction contrary to the advice upon which Mr Johnston has pleaded guilty, but Mr Johnston succeeded, on appeal to this court on 11 September 1996, in having his sentence varied by the deletion of a recording of a conviction.

●  That despite the fact of that conviction at that time, when filling out his annual Specialist Drivers’/Assistance Renewal Application (for his licence to operate a tow truck) on 22 July 1996, Mr Johnston had not recorded or disclosed that conviction.

●  That nor did he do so in the next year, even though the form advised that a “conviction” included a finding of guilt, and the acceptance of a plea of guilty by a court whether or not a conviction was recorded.

●  That although his traffic history recorded that in fact his licence had been cancelled on one occasion because of an accumulation of points, he had consistently given a negative answer since then to the question asked in the application form, as to whether his driver’s licence had ever been renewed or cancelled.

●  That he had likewise never disclosed the receipt of any notices in relation to any traffic offence, (and the form specified “e.g. speeding, failing to give way”), although he had received speeding tickets on 22 June 1996, 1 June 1997, 21 May 1997, 1 April 2002, and 17 April 2002.

●  That he had written dramatically critical remarks concerning his ex girlfriend on the windscreen of her car, after they had broken up.

●  That in early 2000 when towing a vehicle on his tow truck he had collided with and injured a 14 year old boy in Sandgate Road.  He had been questioned at the scene by the police, (who were nearby), and had then continued on his way.  By that stage the injured boy had been taken by ambulance to hospital (Mr Johnston had called the ambulance).  It was put, and Mr Johnston agreed, that he had “no concern” about the boy (AR 43).  The criticism intended was that he had made no subsequent enquiry about the boy’s condition.

●  That he “made a habit of complaining” about assaults alleged by him committed by Ready Towing drivers.

●  That he had telephoned the witness Ferguson while the committal proceedings were underway.  It was suggested this was improper.

●  That he had in fact received compensation from Work Cover for the incident on 9 October 2000, for post traumatic stress disorder, although he had returned to work after four days.

●  That he had not told Ready Towing of his conviction for stealing, when then employed by them.

●  That he did not ask the police to examine the inside of his tow truck on 9 October 2000 to look for blood or specks of it.

●  The asserted fact that it was dangerous to strap up only one side of a vehicle.

[19]  Mr Allison’s counsel cross examined Mr Johnston upon the contents of a number of his applications for renewal of those “tow truck” licences, and had a copy of Mr Johnston’s driving record and his criminal history.  Counsel also quite clearly had instructions about the incident causing injury to the 14 year old, the occasions of the other assaults about which Mr Johnston had complained, the general circumstances of the convictions for dishonesty, and the incident involving Mr Johnston’s ex girlfriend.  The appeal record makes it plain that those matters had also been the subject of cross examination at committal. 

The Evidence on the Appeal

[20]  Mr Allison’s affidavit evidence on the appeal did not acknowledge that he had actually given any instructions to either his counsel at trial, or to any solicitor.  In his affidavit he swore he did not meet or speak to a solicitor before the trial, and that counsel was uninstructed on the first day.  Prior to that, and apparently throughout the committal proceedings (on Mr Allison’s description) his trial counsel had told him that, “I would not need a solicitor at that stage”.  He swore that at no stage did anyone advise him that he could enter a tactical plea of guilty, to give him a better chance of avoiding a jail term upon conviction.

[21]  During cross examination on the appeal, the only specific matter about which he acknowledged giving his counsel instructions was the incident “near Toombul”, when Mr Johnston had collided with the pedestrian.  His answers also convey that he was the source of the information that tow truck drivers reapply annually for a licence, and are obliged to declare whether they have “convictions”. 

[22]  His fiancée supported his evidence that they were told by trial counsel, in a conversation held while the jury were deliberating, that the Crown Prosecutor had told counsel prior to the start of the trial that the Crown would not press for a jail sentence on a plea of guilty at that time.  She swore Mr Allison had asked in reply why he had not been told anything about that offer until that moment.  However, the support her evidence could give to Mr Allison was rather weakened by her concession in cross examination that in September 2001, she had been convicted after a trial for stealing household items she said were “allegedly taken” when working as a cleaner, and had an earlier conviction for stealing in 1988. 

I’m Not Guilty but I’ll Plead Guilty

[23]  Mr Allison’s evidence on the appeal made clear that he had at all times maintained to his counsel that he was innocent of the allegation of assault, and he maintained that claim to this court. His complaint, that he was denied the benefit of the opportunity to avoid a trial and to obtain the benefit on being sentenced on a plea of guilty, is valid only to the extent that Mr Allison could both plead guilty and claim innocence at the same time.  The judgments in the High Court in Meissner v R [2] require this court to accept that a plea of guilty entered in open court by a person of full age and apparently of sound mind and understanding, and made in the exercise of the free choice in the interest of that person, causes no miscarriage of justice if a court acts on that plea, although the person entering it is not in reality guilty of the offence.  A specific example of when that would not cause a miscarriage of justice, given by Dawson J, was when the plea was entered in the hope of obtaining a more lenient sentence than if convicted after a plea of not guilty.[3]

[24]  However, an equally important matter, described in the same passage of the judgment by Dawson J, is that an accused person so entering a plea must do so understanding and intending that by that plea, he or she is admitting guilt of the offence charged.  This is because, as observed in the judgment of Lawton LJ in R v Inns[4], in a passage cited with approval in the joint judgment in Meissner.[5]

“….the law attaches so much importance to a plea of guilty in open court that no further proof is required of the accused’s guilt.”

Dawson J expressed it (at CLR 157) that the entry of a plea of guilty constitutes an admission of all the elements of the offence.

[25]  In R v MacKenzie [2000] QCA 324 (CA No 353 of 1999, judgment delivered 11 August 2000), the President and Dutney J agreed that in Queensland some experienced criminal law practitioners will allow a defendant claiming innocence to enter a plea of guilty, providing that defendant understands that the effect of the plea of guilty is an admission to all the world that he or she committed the offence charged, and otherwise makes a free and informed choice as to that plea.  Those remarks were obiter, as were those of McPherson JA in the same case, who cited instead and with approval the remarks in Turner (1970) 54 Cr App Rep 352 at 360 that:

“……counsel of course will emphasise that the accused must not plead guilty unless he has committed the offence charged”.

[26]  That last statement has much good sense to commend it, but experience shows that some people charged with serious offences (and particularly offences of incest or indecently dealing with children) wish both to maintain to their lawyers that they are actually innocent, and also to plead guilty.  In those circumstances it is imperative that these lawyers ensure that no plea be taken until (written) instructions have been obtained in which the person charged describes a wish or willingness to plead guilty, and an understanding that by so doing, he or she will be admitting guilt.  If those instructions are obtained and adhered to a lawyer may properly appear on the plea.

[27]  If Mr Allison did not give instructions of that sort, I do not see how his trial counsel could have represented him on a plea.  Of course, counsel could have withdrawn, (as the barrister representing the party who pleaded actually did in the matter leading to the decision in Meissner), and Mr Allison could have represented himself on his plea of guilty or gotten the services of another lawyer to whom his instructions were limited to being that he was willing to plead guilty, and understood the effect of that plea. 

[28]  Those last possibilities, of self representation or using another lawyer, make relevant the evidence of Mr Allison’s trial counsel.  That evidence confirmed Mr Allison’s evidence that he had insisted he was not guilty, but contradicted his evidence that his barrister had not discussed the possibility or benefit of a plea of guilty with him, and that the barrister had not disclosed before the trial started the Crown Prosecutor’s description of the Crown’s view of an appropriate sentence on a plea.

[29]  His trial counsel swore that he and Mr Allison had spoken of why the Crown would be making an “offer” at such a late stage, and that he had also advised, in response to Mr Allison’s questions, that counsel could not guarantee that the judge would not impose a jail sentence, that being a matter for the judge alone.  Counsel’s evidence was that Mr Allison’s attitude was that the “offer” by the Crown was not 100% sure, he was innocent, and there were no witnesses to the alleged assault.  Accordingly, when counsel had explained the advantages of a plea, he had taken the matter as far as he could, because then if “the client states he is not guilty to the offence, well, that’s the end of it”.  That seems a quite proper attitude.

[30]  Mr Allison’s counsel also swore that he had discussed the matter of a change of plea very early on the morning of the second day of the trial.  He had also sought instructions approving a less aggressive approach towards the prosecution witnesses. 

[31]  The barrister was an impressive and believable witness, and Mr Allison was not.  Counsel’s account was more internally consistent, since it included a description of the difficulties posed by Mr Allison’s insistence that he was not guilty, in the context of counsel’s inability to assure Mr Allison that definitely he would not be sent to prison, and of counsel’s unwillingness to appear on a plea when Mr Allison denied guilt.  Mr Allison’s evidence conceded that there had been discussion about the possible penalty he faced, but none about the benefits to Mr Allison of a plea of guilty.  I thought counsel’s evidence credible where he described having explained in detail to Mr Allison the benefit of a plea of guilty on the first morning of the trial, and having gotten the response that Mr Allison was concerned that he was not being given a 100% guarantee he was not going to jail.

[32]  I accepted counsel’s evidence that all of the information he possessed, other than that contained in the prosecution statements, had come from Mr Allison.  In addition, this not only seems more probable than any other hypothesis but also no other source was suggested in cross-examination of counsel.  I also accepted the evidence that  Mr Allison had been very forceful in his instructions that he wanted counsel to make a vigorous forensic attack upon the complainant.  That is what counsel did.

[33]  I am satisfied that Mr Allison’s real complaint that that attack not only failed to raise a reasonable doubt, but was counter productive.  It antagonised the trial judge.  At the point when Mr Johnston agreed that he had “no concern” about the youth with whom he had collided, the trial judge interrupted and said “don’t be ridiculous”, extracted in the jury’s absence that what counsel was suggesting was that Mr Johnston had shown a “callous disregard” for that youth, and then forced counsel to apologise.  This was done by adjourning and remanding Mr Allison in custody until counsel was prepared to apologise.  On instructions, the apology was given.

[34]  Thereafter the learned judge took what appears from the record to have been an increasingly active role in querying, in the jury’s presence, the relevance or benefit of the cross examination.  At different times counsel was told that his explanations for asking certain questions were “nonsense”, that he should ask something “sensible”, should “get on with it”, that it was a “waste of time” cross examining on this or that topic, or that that the questioning was “ridiculous”, or “all ridiculous”, or “utterly ridiculous”.

[35]  It is the experience of all counsel with any experience that on occasions a judge will become impatient with the case being presented, and make that obvious.  That this happened to counsel in this case does not mean for one moment that counsel was acting without instructions.  It appears to me that counsel was acting on instructions when cross examining Mr Johnston on each topic chosen, and made an intelligent presentation of the instructions actually received.

[36]  That is how the complaint about raising the fact of assaults committed on Mr Johnston by other persons should be viewed.  That information must have come from instructions supplied to counsel.  It appears to have been put before the jury to suggest either or both a motive for, or a continuous course of conduct by, Mr Johnston’s making a false allegation about a Ready Towing driver.  The fact that this forensic gamble failed does not give rise to any miscarriage of justice.[6] There was a possible forensic advantage to Mr Allison in that line of questioning, and his defence had few other feathers with which to fly.  Accordingly, I would dismiss Mr Allison’s complaint about his counsel’s conduct of the trial.

Application for Leave to Appeal against Sentence

[37]  The sentence imposed was a very heavy one.  Mr Allison ordinarily lives with his fiancée and her two children, and the sentencing judge was told he paid “maintenance” in respect of three children of his own.  He has been in the trucking business since age 16, and never out of employment.  His criminal history included offences of driving with a blood alcohol concentration in excess of .05 on 18 July 1981 and 26 September 1986; three counts of dangerous driving, all committed on 24 March 1982; one offence of wilful damage committed on 16 December 1997; and two separate appearances when he received convictions for breaching domestic violence restraining orders, which he did three times on 9 December 1995 and again on 6 June 1996 and 17 July 1996.  Those last two lots of convictions were said to have arisen out of visits to his children.  He has significant mortgage commitments. 

[38]  The learned sentencing judge referred when imposing sentence to the other assaults and varieties of harassment committed upon the complainant by other persons employed by Ready Towing.  The judge held that in the absence of any other rational explanation, it appeared that Ready Towing resented the competition from Pacific Towing in the market place, and the resentment was manifested by gratuitous violence towards Mr Johnston.  The judge regarded that as utterly unacceptable behaviour, and said that he intended by his sentence to send a clear message that violence could not be used to deter commercial competitors in the tow truck industry. 

[39]  If those other assaults described by Mr Johnston were examples of a campaign of gratuitous violence resulting from resentment at competition, that could justify the sentence imposed.  The problem with that approach is that Mr Allison was not accused of committing or being party to any of those other asserted assaults or unlawful conduct, no charges had been laid in respect of them, and the court had not heard at all from the persons who were said to be responsible.  Further, Mr Ferguson, whose evidence assisted the prosecution, was an employee of Ready Towing, and he swore he did not believe that there had been any instructions given to bully or use bullying tactics against the opposition.  He had not been given any particular instructions on how to conduct himself at an accident scene, and said:

“we don’t use bully tactics or anything like that.  If they’re there we’re there.  We don’t sort of acknowledge them if we don’t have to.”

He added that:

“We’re expected to mention (to potential customers) that we’re more recommended than what the competition is recommended, just being like, recommended by RACQ, and quality assured.”

[40]  In the light of that evidence, I consider the learned judge, understandably enough in the atmosphere created by the defence put forward on Mr Allison’s instructions, went too far in finding that Mr Allison’s conduct was “apparently a part of a campaign of intimidation by persons associated with a commercial rival”.  Largely because of Mr Ferguson’s quite neutral position, I think the evidence before the learned judge fell short of establishing that important proposition.

[41]  Accordingly, the sentence of 18 months imprisonment was imposed on a finding which lacks sufficient support.   However, the learned judge did refer to a number of matters which were serious and were supported.  These included Mr Allison’s complete absence of any remorse, demonstrated by extensive cross examination of Mr Johnston, both at the trial and at the committal hearing.  There was also the hostility Mr Allison displayed to his victim from the time Mr Allison arrived at the scene to the time he left, the gratuitous nature of his conduct, and the serious hurt inflicted on Mr Johnston.  Finally, Mr Allison did not have the mitigating benefit of a plea of guilty and any co-operation thereby with the administration of justice. 

[42]  In R v Taylor [2000] QCA 311 (CA No 139 of 2000, judgment delivered 4 August 2000) this court considered some earlier decisions involving convictions for assault causing bodily harm, and effectively imposed a sentence of nine months imprisonment suspended after two months.  That was generally consistent with the sentence imposed in R v Wade [1996] QCA 225 (CA No 139 of 1996, judgment delivered 12 June 1996), where on a not guilty plea a sentence of six months imprisonment was suspended after two months.  In R v Smallwood; Ex parte A-G (Qld) [1997] QCA 91 (CA No 30 1997, judgment delivered 15 April 1997), where there was a more serious assault, a sentence of nine months imprisonment was imposed on appeal, overturning an order for probation and community service.  I note that in Taylor there had been a plea of guilty. 

[43]  Mr Allison was released on bail on 6 December 2002 after serving one and a half months.  He seemed very anxious not to be returned to prison.  I am satisfied a prison sentence was appropriate, but also that since his release on bail it becomes a little more onerous to return him there.  I consider a suspended sentence now would be a considerable deterrent to him.

[44]  Accordingly, I would order:

●  that his appeal against conviction be dismissed;

●  that his application for leave to appeal against sentence be allowed, and this court order that the sentence of 18 months imprisonment imposed on 23 October 2002 be and remain suspended on and from 6 December 2002, for an operational period of four years.

[45]  MACKENZIE J:  This is an appeal against conviction and an application for leave to appeal against sentence.  The facts of the offence and the course of the trial are set out comprehensively in the reasons for judgment of Jerrard JA.  The appeal against conviction raises issues about a conversation between the Crown Prosecutor and defence counsel in relation to the Crown’s attitude if there were a plea of guilty and the adequacy of communication of the substance of the conversation and its implications to the appellant including consequences of the matter proceeding to trial. 

[46]  The appellant and his fiancée and defence counsel all gave oral evidence after  swearing affidavits relating to this issue.  With respect to the competing versions of what happened in that regard I formed a clear preference for the evidence of counsel over that of the appellant and his fiancée.  I am satisfied that the Crown’s offer to submit that imprisonment was within range but not the only option in the event that the appellant pleaded guilty even though the trial was listed for that day was conveyed to the appellant before the trial began.  I am satisfied that the appellant was disinclined to plead guilty when there was no guarantee that a non-custodial sentence would actually be imposed. 

[47]  With regard to the conduct of the trial, there is nothing to suggest that the appellant disagreed with the course the defence took, of a vigorous attack on the complainant’s credibility with a view to suggesting that the complainant had been injured without any involvement of the appellant and that a false complaint had been made against him out of malice against the complainant’s former employer and its employees.  A substantial part of the attack in this vein had occurred prior to the luncheon adjournment on the first day of the trial.  There is nothing to suggest that the applicant was unwilling for that line of questioning to continue since cross examination designed to damage the complainant’s credit continued throughout the whole of the afternoon session. 

[48]  There is no doubt that the learned trial judge, particularly during the afternoon session, became concerned about aspects of the cross examination.  There were exchanges between him and counsel and the learned trial judge expressed himself in forceful but not disproportionate terms about aspects of what was happening.  The reality was that by that time the jury would have already perceived the defence as an attempt to destroy the credibility of the complainant and that what was transpiring during the afternoon was a vigorous continuation of that tactic.  The appellant did not give evidence himself.  I do not accept that the appellant was deprived of any reasonable chance of acquittal because of the conduct of the defence or that there was a miscarriage of justice.  The appeal against conviction should be dismissed. 

[49]  With respect to the application for leave to appeal against sentence, I agree with Jerrard JA’s reasons and the order proposed by him.