Regina v Guider [2000] NSWCCA 355

New South Wales Court of Criminal Appeal

CITATION : Regina v Guider [2000] NSWCCA 355 FILE NUMBER(S) : CCA 60322/99 HEARING DATE(S) : 4 September 2000 JUDGMENT DATE : 13 September 2000

PARTIES : The Crown Timothy Paul Guider (Appl in person)) JUDGMENT OF : Fitzgerald JA at 1; Newman J at 7; Greg James J at 79

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/11/0256 LOWER COURT JUDICIAL Armitage DCJ OFFICER :

COUNSEL : P Hock (Crown) Appl in person SOLICITORS : S E O'Connor (Crown) CATCHWORDS : CRIMINAL LAW - robbery - evidence - reliability - mental disorders - conduct of legal practitioners - incompetence of counsel - duties of trial judge Crimes Act 1900 LEGISLATION CITED : Sentencing Act Evidence Act (NSW) 1995 R v Farrell [1998] 194 CLR 286 R v Birks (1990) 19 NSWLR 677 at 685 CASES CITED: R v Ignjatic (1993) 68 A Crim R 333 at 338 R v Zorad (1990) NSWLR 91 R v Cann, unreported, CCA, 12 October 1994 DECISION : Appeal dismissed

IN THE COURT OF

CRIMINAL APPEAL

60322/99 FITZGERALD JA NEWMAN J GREG JAMES J

WEDNESDAY, 13 SEPTEMBER 2000

REGINA v Timothy Paul GUIDER

JUDGMENT

1 FITZGERALD JA: The circumstances giving rise to this appeal against conviction and application for leave to appeal against sentence are set out in the reasons for judgment of Newman J. I agree with his Honour's reasons for judgment and with the orders which his Honour proposes. I propose to add only brief comments. 2 As Newman J has stated, the appellant attacked the competence of the legal practitioners who represented him at his trial. The copy of his trial solicitor's notes which the appellant placed before the Court contained inappropriate flippant comments concerning evidence, especially evidence given by the appellant. While the appellant's solicitor's scepticism is understandable, the notes indicate an unacceptable unprofessional approach. 3 Further, although the appellant waived privilege and his trial only occurred last year, neither the barrister nor the solicitor who represented him at his trial made any effort to explain their conduct of the appellant's defence or their omission to provide an explanation of their conduct at the trial. Their failure to do so is also unsatisfactory. They should at least have explained the reasons for the course which was taken in relation to Mr Redibaum's evidence. 4 The trial effectively involved a contest between Mr Redibaum's evidence implicating the appellant and the appellant's evidence implicating Mr Redibaum. A decision not to challenge the reliability of Mr Redibaum's evidence on the basis of his criminal history cannot be criticised if, as I think, it was legitimate to seek to ensure that the jury did not receive evidence of the appellant's prior criminal history. The decision not to lead evidence of the appellant's prior criminal history is readily explicable and, without the advantage of hindsight, could not possibly be criticised. That being so, the decision not to adduce expert evidence concerning the consequences of Mr Redibaum's brain injury was understandable. The expert evidence would have revealed Mr Redibaum's criminal activities in the course of explaining his dishonesty was a consequence of his brain injury. 5 However, it was theoretically possible to cross-examine Mr Redibaum to establish, without reference to any suggestion that he had committed offences, that, since his brain injury and as a consequence of it, he had a tendency to lie. If that could have been established, it would have provided the basis for a submission that his evidence was the evidence of an acknowledged liar, which the jury should not accept. Nonetheless, that course would have involved a considerable risk that the prosecution would become entitled to prove the appellant's prior criminal history, and cannot be stigmatised as incompetent. 6 More broadly, I can perceive no basis which would justify a conclusion that there has been any miscarriage of justice. There was a very strong prosecution case against the appellant. If the prosecution had been able to prove the appellant's criminal record as a result of his lawyers' conduct of the trial, the case against him would have been overwhelming.