New South Wales Court of Criminal Appeal CITATION : Gore v Regina (Cth) [2003] NSWCCA 365 HEARING DATE(S) : 04/12/03, 05/12/03 JUDGMENT DATE : 5 December 2003 JUDGMENT OF : Ipp JA at 1; Hulme J at 20; Buddin J at 21 DECISION : Appeal dismissed. CATCHWORDS : Whether conduct of counsel resulted in unfair trial or miscarriage of justice - Failure of appellant to appear - power of Court to dismiss appeal. LEGISLATION CITED : Criminal Appeal Act 1912, s 22(1) PARTIES : Richard Anthony Gore (Appellant) Regina (Cth) (Respondent) FILE NUMBER(S) : CCA 60038/03 COUNSEL : No appearance (Appellant) G Farmer (Respondent) SOLICITORS : No appearance (Appellant) Commonwealth Director of Public Prosecutions (Respondent) LOWER COURT District Court JURISDICTION : LOWER COURT 00/31/0275 FILE NUMBER(S) : LOWER COURT Holt ADCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60038/03 IPP JA HULME J BUDDIN J Friday 5 December 2003 RICHARD ANTHONY GORE v REGINA (CTH) Judgment 1 IPP JA: There is no appearance today by the appellant in this appeal. 2 The matter was originally listed for hearing on 29 July 2003. On that day the appellant was represented by counsel. Counsel made some opening remarks to the court on that occasion and then informed the court that the appellant wished to dispense with his services. Counsel was then excused. 3 The appellant thereupon sought an adjournment of the appeal to enable him to obtain witnesses who, according to him, would give evidence that should have been adduced at his trial. He submitted that this evidence was fresh and would support his claim of innocence. 4 The appellant was due to be released from gaol on parole on 4 November 2003 and he asked the court for a minimum period of two weeks after that to prepare his affidavits for the purposes of the appeal. 5 The Crown opposed the adjournment and referred to a number of instances in which the appellant had either been dilatory in the prosecution of the appeal or had taken various steps that had led to the delay in the completion of the case against him. 6 Notwithstanding the opposition of the Crown, the court ordered the appeal to be adjourned to 5 December 2003. The court warned the appellant that he should be ready to proceed on that date, informed him that it was unlikely that he would obtain another adjournment, and told him that he should get his legal representation ready, complete his affidavits and be ready to argue the case on 5 December. 7 The appellant was ordered to produce the evidence on which he wished to rely by 25 November 2003 and ordered that on 28 November 2003 he was to file his written submissions with the court. The adjournment granted by the court in fact gave the appellant a period of more than four weeks after his release within which to prepare his case, double the time he requested. 8 Needless to say the appellant complied with none of the Court's directions. 9 After the appeal was adjourned to 5 December 2003, the Registrar, by a notice to the Crown and the appellant, informed the parties that the appeal would be heard on 4 December 2003. There is no direct evidence that the appellant received that written notice and on 4 December 2003 he did not appear at the appeal. As appears from the transcript of the proceedings on that day, there was compelling hearsay evidence that the appellant had been informed in good time of the adjournment. Nevertheless, to afford the appellant a proper opportunity of presenting his case, in case, notwithstanding the evidence to the contrary, he was not aware that the appeal had been adjourned, the court adjourned the proceedings to today, 5 December 2003. 10 As I have said, the appellant has not appeared today. I propose that the appeal be dismissed. But I first wish to explain why I consider that, in any event, the appeal is hopeless. I do so having read the written arguments that the appellant presented for the purpose of the first hearing of the appeal on 29 July 2003. 11 On 28 February 2002, after a trial before a jury in the District Court, the appellant was convicted of having contravened section 67(b) of the Crimes Act 1914 (Cth) in that on 6 July 1998 at Newcastle he did utter documents knowing them to be forged. The forged documents were BHP Refractories Pty Limited purchase order forms dated 19 April 1996 and 30 April 1998. 12 The trial judge, Holt DCJ, sentenced the appellant to two years imprisonment commencing on 23 August 2002. His Honour directed that upon the appellant entering into a recognizance in the sum of $2,000 to be of good behaviour for 12 months, he would be released from imprisonment on 22 August 2003. 13 The sole ground of appeal was that "by reason of the conduct of his counsel in not calling available evidence, he did not receive a fair trial and that there was a miscarriage of justice". The appellant contended that, at the trial, he, and other witnesses, should have been called by his counsel to testify. 14 At the trial, at the close of the Crown case, the appellant signed a document in which he instructed his legal representatives not to call him or his former wife, Linda Gore, to give evidence as part of his case. Importantly, the document makes clear that the reason for the decision not to call the appellant was forensic and the reason for the decision not to call Linda Gore as a witness was personal. There were grave forensic risks for the appellant were he to be called as a witness and there were risks of Linda Gore "suffering under cross-examination". The appellant did not wish Linda Gore to so suffer. 15 The legal principles in determining whether counsel's conduct is a material irregularity are well settled. Where trial counsel makes a decision not to call certain evidence and, viewed objectively, the decision is rational and tactical and is made in order to avoid forensic risks, the failure to call that evidence will not make the trial unfair or produce a miscarriage of justice. 16 I am entirely satisfied not only from the documents which the appellant has signed but also from the surrounding circumstances which in today's proceedings it is not necessary to detail, that the appellant made a deliberate and informed decision not to call the witnesses concerned. 17 Furthermore, on my understanding of the testimony of those witnesses, they would not have advanced his case in any material respect. 18 I am satisfied that this court has the power to dismiss the appeal on the basis that in effect there has been a want of prosecution by the appellant. Furthermore, I consider that where, despite having been given every opportunity to present his case, the appellant has not appeared on the day set for the hearing of the appeal, the court – within its inherent jurisdiction – has the power to dismiss the appeal. 19 Accordingly, I propose that the appeal be dismissed. 20 HULME J: I agree with the orders proposed and with his Honour's Reasons. I would mention two matters. I concurred with the decision to adjourn the matter yesterday because of the possibility I thought existed that the Appellant was not aware of the hearing yesterday. 21. The second matter to which I advert is this. The appellant originally pleaded guilty to the charge but made a successful application to be allowed to retreat from that plea. His evidence given in the course of that application provided good grounds for any counsel to hesitate long before calling him again. So far as one can judge from the transcript of the proceedings of the application to be permitted to withdraw his plea, the Appellant appears to be a long way from a credible witness or having a satisfactory explanation for the falsity and use of the documents which were the subject of the charge against him. 21 BUDDIN J: I agree with the orders proposed by Justice Ipp and with his Honour's reasons. I also agree with the additional remarks of Justice Hulme. I wish to add only this. I accept that there is power in the court to proceed in the manner foreshadowed. I am fortified in that conclusion after having had regard to section 22(1) of the Criminal Appeal Act 1912 which provides that the powers of the court may be exercised in the same manner by any judge of the court as they "may be exercised by the court". Included in that list is the power to dispose of an appeal "for failure to prosecute the appeal diligently". That is precisely what has occurred in this case. 22 IPP JA: The orders of the court will be the appeal is dismissed. ********** Last Modified: 03/19/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.