New South Wales Court of Criminal Appeal CITATION: MB v Regina [2009] NSWCCA 200 HEARING DATE(S): 22 June 2009 JUDGMENT DATE: 19 August 2009 JUDGMENT OF: Spigelman CJ at 1; McClellan CJatCL at 77; Johnson J at 78 DECISION: 1 Time to lodge appeal extended. 2 Appeal dismissed. CATCHWORDS: CRIMINAL LAW - appeal and new trial - miscarriage of justice - conduct of defence counsel – incompetence – advice about giving evidence, conduct of cross-examination and treatment of evidence - CRIMINAL LAW - appeal and new trial - particular grounds of appeal - misdirection and non-direction - direction as to self-defence - Pemble direction LEGISLATION CITED: Criminal Appeal Act 1912 Ali v The Queen [2005] HCA 8; (2005) 79 ALJR 662 Atirut Sungsuwan v The Queen [2005] NZSC 57; [2006] 1 NZLR 730 Nudd v R [2006] HCA 9; (2006) 80 ALJR 614 Pemble v The Queen (1971) 124 CLR 107 TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 R v Birks (1990) 19 NSWLR 677; (1990) 48 A Crim R 385 CASES CITED : R v Ignjatic (1993) 68 A Crim R 333 R v Kyriacou [2000] SASC 312 R v Marshall, Court of Criminal Appeal (NSW), 17 July 1990, unreported R v Muratovic [1967] Qd R 15 R v Strang, Court of Criminal Appeal (NSW), 10 December 1990, unreported R v Szabo [2000] QCA 194; (2000) 112 A Crim R 215 Zecevic v DPP (Vic) (1987) 162 CLR 645 PARTIES: MB (Appellant) Regina (Respondent) FILE NUMBER(S): CCA 2005/ 3317 COUNSEL: S Torpey (Appellant) L Babb SC (Respondent) SOLICITORS: Mark Diggins (Appellant) Solicitor for Public Prosecutions (Respondent) LOWER COURT JURISDICTION: Supreme Court LOWER COURT FILE NUMBER(S): SC 2005/ 3317 LOWER COURT JUDICIAL OFFICER: Howie J LOWER COURT DATE OF DECISION: 10 November 2006 LOWER COURT MEDIUM NEUTRAL CITATION: [2006] NSWSC 1164 - 1 - IN THE COURT OF CRIMINAL APPEAL CCA 2005/3317 SPIGELMAN CJ McCLELLAN CJ at CL JOHNSON J Wednesday 19 August 2009 MB v REGINA Judgment NON-PUBLICATION ORDER RE IDENTITY OF APPELLANT MB NON-PUBLICATION ORDER RE IDENTITY OF WITNESSES PB, LB, SL, AC, DB, BB, DB, DB, RB, TM, JH AND JF 1 SPIGELMAN CJ: On 7 July 2005 a young man was killed in Newcastle during an altercation taking place with a group of teenage boys. The victim died from blood loss from a bottle slash injury to his neck. The issue at trial was the identification of the assailant. 2 The appellant pleaded not guilty but was convicted by a jury in a trial conducted by Justice Howie. There is no appeal from the sentence. 3 The appellant needs leave to extend time for appeal. This is not opposed. Leave should be granted. 4 There are two grounds of appeal, a third ground having been abandoned in the course of the hearing in this Court. The grounds are: "GROUND 1 – There was a miscarriage of justice, in the sense that the trial was unfair, by reason of conduct of counsel. Particulars i Counsel did not conduct, nor did he direct to be conducted any investigation in relation to the identity of the contributor of blood found on items of clothing that were worn by a person identified by the appellant as being criminally concerned in the death of Zane McCready, namely JH. ii Counsel failed to advance a consistent line of defence in his cross-examination of crucial witnesses, namely JH, PB, BB and AC, that they had concocted their evidence. iii Counsel failed to properly advise the appellant about the advantages and disadvantages of giving and not giving evidence. iv Counsel failed to object to the learned trial judge's comment on the failure of the appellant to give evidence. GROUND 2 – The learned trial judge erred by directing the jury to consider self-defence and excessive self-defence." 5 The principal focus of the first ground of appeal was the third particular, namely the failure of counsel to properly advise the appellant about the decision not to give evidence. 6 The fourth particular of Ground 1 was not formally abandoned, but it is unnecessary to deal with it. A third ground, which was abandoned, was that the trial judge erred by making comment to the jury on the appellant's failure to give evidence. Those comments were made in the context of the trial judge directing the jury to consider self-defence. Counsel for the appellant accepted that if, contrary to Ground 1, such a direction was properly given, then the comments were appropriate. Ground 3 was abandoned and it was not suggested that the fourth particular of alleged incompetence in failing to object to the comments could be maintained independently. GROUND 1 There was a miscarriage of justice in the sense that the trial was unfair by reason of conduct of counsel. 7 The principles applicable to an appeal on the basis of incompetence of counsel are now well established. (See Nudd v R [2006] HCA 9; (2006) 80 ALJR 614; Ali v The Queen [2005] HCA 8; (2005) 79 ALJR 662; TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124; R v Birks (1990) 19 NSWLR 677; (1990) 48 A Crim R 385; R v Ignjatic (1993) 68 A Crim R 333.) 8 It is unnecessary to set out the relevant case law in detail. The applicable principles for present purposes remain as summarised by Gleeson CJ in Birks, supra, where his Honour said at 685: "1 A Court of Criminal Appeal has a power and a duty to intervene in the case of a miscarriage of justice, but what amounts to a miscarriage of justice is something that has to be considered in the light of the way in which the system of criminal justice operates. 2 As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence. 3 However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of 'flagrant incompetence' of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention." 9 The focus of the inquiry must be on the particular statutory regime for criminal appeals. (See TKWJ supra at [30]; Nudd supra at [6], [24].) The issue is whether there has been a miscarriage of justice within s 6(1) of the Criminal Appeal Act 1912. 10 The incompetence of trial counsel, if established, must have resulted in a miscarriage of justice to justify intervention by this Court. 11 There are a number of equivalent formulations of what can constitute a miscarriage of justice: Whether the act or omission in question "deprived the accused of a chance of acquittal that was fairly open"': TKWJ supra at [26] (Gaudron J, citing Mraz v The Queen (1955) 93 CLR 493 at 514 per Fullagar J.). Whether the accused received a fair trial: TKWJ supra at [17] (Gleeson CJ). Whether there is a "significant possibility that a material irregularity at the trial has resulted in the conviction": TKWJ supra at [77] (McHugh J). "[I]n the context of the adversarial system of justice, unfairness does not exist simply because an apparently rational decision by trial counsel, as to what evidence to call or not to call, is regarded by an appellate court as having worked to the possible, or even probable, disadvantage of the accused. For a trial to be fair, it is not necessary that every tactical decision of counsel be carefully considered, or wise. And it is not the role of a Court of Criminal Appeal to investigate such decisions in order to decide whether they were made after the fullest possible examination of all material": TKWJ supra at [16] (Gleeson CJ). "Whether there has been a miscarriage of justice is the ultimate issue that the court must decide. Counsel's conduct is a sub-issue. Where counsel's conduct is in issue, the court must examine all the circumstances including the wide discretion that counsel, as an officer of the court, had to conduct the trial in the manner that he or she thought was in the best interests of the accused. If the court concludes that, despite that discretion, a material irregularity has occurred, it must determine whether there is a significant possibility that the irregularity affected the outcome. If it does, a miscarriage of justice will have occurred and the conviction must be quashed": TKWJ supra at [97] (McHugh J). 12 Furthermore, as Gummow J and Hayne J observed in Nudd supra at [27]: "[27] Ten acts and omissions were specified in the appellant's notice of appeal to the Court of Appeal. Several focused upon what was said to be the ignorance of counsel about the elements of the offence with which the appellant was charged and a consequent failure to give proper advice to the appellant. Others focused upon what were said to be other failures of trial counsel to give proper advice to the appellant, both for want of proper instructions and otherwise. But a failure to give proper advice to the appellant would be significant only if, as a result of that failure, something was done or not done at trial that was, or occasioned, a miscarriage of justice. For the reasons given in TKWJ , the inquiry about miscarriage must be an objective inquiry, not an examination of what trial counsel for an accused did or did not know or think about. The critical question is what did or did not happen at trial, not why that came about." (Footnotes omitted) 13 With respect to the issues concerning alleged incompetence of trial counsel raised in this appeal, perhaps the most pertinent formulation is whether there is a reasonable explanation for the conduct by counsel of which complaint is made. (See, for example, TKWJ supra at [107]; Ali supra at [25].) Particular 1: Trial counsel did not conduct or direct to be conducted an investigation about blood stained items of clothing worn by one of the young men involved in the altercation. 14 Mr S Torpey, who appeared in this Court for the appellant, submitted that despite trial counsel's instructions that the appellant had seen JH strike the deceased around the neck, trial counsel (Mr Grogin) did not pursue inquiries about identifying the blood stains on JH's clothing. Those stains, it was submitted, could have been exculpating evidence, as they could have undermined certain statements made by JH about his proximity to the fatal incident and hence impacted upon the acceptability of his evidence. 15 The discrepancy in that evidence, if any, is of minimum weight. JH gave estimates of his proximity to the deceased at the relevant time as ranging from 3-5 metres. The evidence of the spray of blood suggested that the lesser distance could have been within range. The forensic use to which the DNA evidence, if positive, could have been put was not clearly articulated but there was nothing to suggest that it would have been of any significance. 16 Not every item from the scene which had blood stains was subject to DNA analysis. Indeed the amount of blood and its dispersal was such that that could not have been reasonably expected to occur. 17 Mr L Babb SC, who appeared for the Crown, submitted that the appellant's trial counsel made a strategic choice about how to respond to the forensic evidence. He pointed out that trial counsel emphasised the selective nature of the forensic evidence in the Crown's case to the jury on several occasions, and the learned trial judge mentioned it in summing up. Mr Babb submitted that trial counsel reasonably sought to use the selective nature of the forensic evidence to suggest that the investigation was incomplete, rather than to run the risk that more testing would expose explanations for the blood stains which were consistent with the prosecution's case. 18 The Crown submissions should be accepted. 19 At the trial, trial counsel for the appellant summarised the DNA evidence and its appropriate use for the jury by emphasising the selective nature of the DNA testing. He pointed to specific items that were not tested such as blood on the accused's shoes, the clothing of some of the young men involved in the altercation, and swabs from blood stains in the house in Waratah St. 20 Trial counsel said: "Have you had a fair dinkum serious investigation into this, or have you just had the investigation that money can buy? You've seen hundreds of photographs. You've heard from Constable Taylor, the junior investigator who, if I can recall, said he'd been doing crime scene work for about six months. In this week's CSU show on television they say CSU treat every item as a clue. Too bad the New South Wales Police Department didn't do it in this case. I've got it wrong; CSI. I don't watch it. CSI treat every item as a clue. Not in this case. You heard from Detective Redpath and Detective Golledge. The photographs show a number of clear glass pieces at the scene. How many of those clear glass pieces were fingerprinted? Two. Two only. Two. The deceased was not stabbed in the neck with a pack of Longreach. He wasn't stabbed in the neck with pizza boxes. He wasn't stabbed in the neck with brown beer bottles. They're the things that they tested for fingerprints. They didn't test all of those pieces of clear glass that were located at and around the scene where this incident occurred … … Were you not horrified to hear forty items, ex Z, forty items were sent to the Department of Analytical Laboratories for DNA testing and of that forty items, thirty-one bore double asterisk as they were the items of high priority as indicated by the police. Of that thirty-one, fifteen were tested … … The presence of glass at markers A, B and C and the areas south of A can be attributed to a number of things; being kicked by police or the security officers, or the offender or Mr M or Mr S, or the paramedics or the ambulance officers who attended … … … Look at what was tested. Look at what wasn't tested. Nobody requested more testing. Why not? … … Why not check? Why not test? Or is that we're bound by the great dollar again? Was the investigation thorough enough? Was it thorough enough for you to be satisfied beyond reasonable doubt of the guilt of the accused?" 21 In his closing comments, trial counsel said: "Well, ladies and gentlemen, it's my respectful submission to you that the Crown case is far from complete, far from satisfactory. It's my respectful submission that the majority of the young witnesses are either lying, mistaken and in any event unreliable. The Crown has asked you to accept some evidence and reject others. You can do that, but when doing it look in the whole context of the Crown case. Has the Crown proven its case beyond a reasonable doubt, and if the Crown hasn't you must find the accused not guilty." 22 I am unable to detect any error in the tactical decision of trial counsel. It is not necessary, when preparing for trial, for counsel to pursue every possible theory of how the crime came to be committed. There was no miscarriage of justice by failing to insist on DNA testing of the clothing of JH. Particular 2: Counsel failed to advance a consistent line of defence in cross-examination of critical witnesses (four of the young men involved in the altercation), namely, that they had concocted their evidence. 23 The appellant submitted that trial counsel's cross-examination of critical witnesses manifested incompetence and compromised his defence case. As one application of the principles referred to at [7]-[8] above, Gleeson CJ referred to decisions about cross-examination in Birks supra at 683: "Decisions as to what witnesses to call, what questions to ask or not to ask, what lines of argument to pursue and what points to abandon, are all matters within the discretion of counsel and frequently involve difficult problems of judgment, including judgment as to tactics." 24 Similarly, in Ignjatic supra, Hunt CJ at CL said at 336: "Decisions as to which witnesses should or should not be called, what questions should or should not be asked, which lines of argument should be pursued, which points should be abandoned and which of two or more inconsistent defences should be raised are all matters within the discretion of counsel, and they frequently involve difficult problems of judgment, including judgment as to the best tactics to be adopted." 25 In Ali supra, Callinan and Heydon JJ said at [99]: "… Decisions whether and how to cross-examine are not always easy. They are much more difficult when the trial is a joint one of those who once were close and now seek to escape conviction by blaming each other. And they are possibly most difficult, when, as here, the case against the appellant was an overwhelmingly strong one." 26 However, as McHugh J said in TKWJ supra at [76], the position will be different where there is no cross-examination of a witness at all without any rational explanation: "[76] In some cases, the conduct of counsel may be such that it has deprived the accused of a fair trial according to law. If the conduct of counsel has resulted in an unfair trial, that of itself constitutes a miscarriage of justice. If, for no valid reason, counsel fails to cross-examine material witnesses or does not address the jury, for example, the accused has not had the trial to which he or she was entitled. In such a case, the failure of counsel to conduct the defence properly is inconsistent with the notion of a fair trial according to law. It cannot be right to insist that the appeal can succeed only if the court thinks that counsel's conduct might have affected the verdict. To require the accused to persuade the court that the conduct might have affected the verdict comes close to substituting trial by appellate court for trial by jury. No matter how strong the prosecution case appears to be, an accused person is entitled to the trial that the law requires. In principle, therefore, where the trial has been unfair, the accused should not have to show that counsel's conduct might have affected the result." 27 In written and oral submissions, the appellant submitted that there was no effective presentation of the defence case because of trial counsel's allegedly inadequate and incomplete cross-examination of the material witnesses. Mr Torpey, for the appellant, submitted a table of questions that 'should have been asked'. He noted that the evidence of the four witnesses (who were other young men involved in the altercation) was significant and to similar effect – that the appellant was holding a glass bottle and that they saw his arm moving in a manner consistent with him inflicting the fatal injury. 28 Mr Torpey submitted that trial counsel should have suggested that the witnesses' evidence was fabricated, possibly jointly. He submitted that trial counsel failed to adopt a uniform approach to cross-examination of these witnesses, and this was not merely ill conceived, but also not open to counsel on the appellant's instructions. Certain questions relating to the appellant's account of events should have been put to the other witnesses because this could have supported his account. He further submitted that the effect of this failure was that the jury were not provided with a real basis on which they could reject the evidence of these witnesses. This proposition appears to be closely related to the third particular discussed below. 29 Mr Babb SC, for the Crown, submitted that trial counsel's approach involved pointing out inconsistencies in the statements made to police, the intoxication of some witnesses, and challenging the incriminating evidence. Overall, the approach was to challenge the young men, to create doubt about their reliability and, in appropriate instances, to create doubt about their honesty. 30 The Crown submitted that it was reasonable to distinguish between the witnesses in terms of reasons for their alleged unreliability, for example, PB's evidence was different from the other witnesses in that it did not differ significantly from the version given in his police statement. The other witnesses admitted discrepancies between their police statements and evidence in court. There was also a difference as to admitted alcohol consumption, with PB admitting he had drunk on the evening in question, whilst two other witnesses denied drinking anything alcoholic. This justified the need for an explicit suggestion by trial counsel that they were lying. 31 Moreover, the Crown submitted that it was reasonable for trial counsel not to pursue a collusion argument given the other evidence in the Crown case – including from an independent witness – and the risk of such an approach at trial. Trial counsel raised issues of contamination with the witnesses, and in addressing the jury suggested "… perhaps a witness has adopted as truth what he's heard from somebody else". 32 I note that trial counsel also said with respect to a particular matter: "… Or is this the Chinese whispers happening again … Is it a situation where somebody's come up with that idea and another person's adopted it?" 33 Mr Babb further submitted that trial counsel did put the appellant's account of the struggle to the witnesses. Several extracts from the cross-examination are focused on asking the witnesses whether or not JH punched the deceased, which was in accordance with the appellant's instructions. 34 The Crown submissions should be accepted. It was unnecessary, let alone a manifestation of incompetence, for trial counsel to approach every Crown witness in precisely the same way. There was no miscarriage of justice. Particular 3: Trial counsel failed to properly advise the appellant about whether to give evidence. 35 The central contention advanced by Mr Torpey on this appeal was the failure of trial counsel to give adequate advice to the appellant about his election whether to give evidence and the significance of the fact that as a result the appellant did not give evidence. 36 Gleeson CJ noted in Nudd supra at [17] that the principles applicable to an appeal based on incompetence may be satisfied where the accused failed to give evidence because counsel wrongly advised them that an accused is not entitled to give evidence. " … To take an extreme example, if an accused person failed to give evidence because counsel wrongly advised that an accused is not entitled to give evidence, it is difficult to imagine that a court of criminal appeal would not intervene. The example shows that, although, as a general rule, the test of whether a forensic decision has resulted in an unfair trial is objective, one cannot eliminate the possibility of exceptional cases in which it is relevant to know why a certain course was or was not taken." 37 The range of appropriate considerations are discussed by Thomas JA in R v Szabo [2000] QCA 194; (2000) 112 A Crim R 215 at 223-224: "Advice on election [40] Although the election to give evidence is the client's right, most of the relevant considerations involve forensic judgment. It is impossible to lay down in advance the extent of detail that needs to be discussed or what will amount to reasonable discussion for the purpose of assisting the client to make the necessary election. It should be recognised however that too much forensic discussion may be bamboozling, and that it is not a lawyer's duty to educate the client to the equivalent of a trained lawyer. Generally speaking it should be sufficient to mention the main points that should guide the particular decision. It is then for the client to accept or reject the advice. It is worth emphasising that it is neither improper nor incompetent for counsel, after reasonable discussion with a client, to offer strong advice to the client as to the course that should be taken. Reluctant acceptance by a client of such advice does not convert the exercise to an impropriety. It may well be the case that the advice is accepted with a degree of reservation or ambivalence, but that is hardly surprising in a matter where a decision has to be made on perceptions and sometimes intuition rather than upon established premises. [41] Once made, an election to give or not to give evidence has the advantage or disadvantage of any election – its maker must accept its consequences. No doubt many persons who are convicted later ponder whether the result would have been different had they made a different election. So do counsel. Such regrets no doubt arise in those who have been convicted after electing to give evidence just as they do in those who have been convicted after electing not to give evidence. However a belief by an appellant that he has made the wrong election at trial is a far cry from showing a proper ground of appeal. [42] Such a ground might be made out if a professional adviser unfairly overbore the will of an accused or gave him no real opportunity to participate in the decision. This was the position in Sankar v State of Trinidad and Tobago where the Privy Council set aside a conviction following a trial in which the advocate failed to give the client adequate advice or explanation of the alternative courses available to him or to tell him that if he did not give evidence he had in practice no defence. This deprived the appellant of the opportunity to present his defence to the jury and a substantial miscarriage of justice occurred. The circumstances of the present case are however distant from those in Sankar. Firstly there was adequate discussion and opportunity for the present appellant to make his decision; secondly it could not be said that unless the present appellant gave evidence he was bound to be convicted; and thirdly the story which Sankar wished to tell did not contain the self-convicting quality of the present appellant's story. [43] In the present case there was adequate discussion of the issue and it is impossible to regard the advice that the appellant should refrain from giving evidence as incompetent let alone flagrantly incompetent. The appellant was not deprived of the opportunity of making the final decision and had the opportunity to accept or reject the advice of his professional advisers. In the circumstances the advice given to him was reasonable. It would seem that his chances of acquittal would have become even more remote had he given evidence. [44] Perusal of the record suggests that defence counsel's conduct of the trial was generally competent and a clear understanding of the forensic considerations was revealed. There is no merit in the first ground of appeal." 38 In this Court, counsel for the appellant relied on Atirut Sungsuwan v The Queen [2005] NZSC 57; [2006] 1 NZLR 730 per Gault, Keith and Blanchard JJ, where their Honours said at [65]: "Where error or irregularity is alleged and attributed to counsel, but that would not have affected the outcome – was not material – there will be no need to analyse and judge the conduct of counsel. On the other hand, where the complaint is that counsel's conduct was such as effectively to deny the accused representation to fairly present the defence, prejudice to the outcome will be readily found – and in extreme cases may need no inquiry." 39 Mr Torpey also relied on R v Kyriacou [2000] SASC 312 where Duggan, Nyland and Bleby JJ said at [45]: "In this case there was a compounding effect of four factors which caused the miscarriage we have identified. There was the failure to obtain proper detailed instructions in elaboration of the appellant's defence, the failure to put those key elements to a crucial prosecution witness, the plainly wrong advice given as to the effect of the appellant's declining to give evidence and the appellant, not unreasonably, acting on that advice. We would not want it to be thought that any one of those factors by themselves would necessarily have been sufficient to justify a retrial. Many an omission and many a tactical decision made and much advice given in the course of a trial might be considered in retrospect to have been better for the accused if done differently, possibly even resulting in an acquittal. But it will not follow that a miscarriage of justice has occurred. In the present case, however, the conduct of the appellant's counsel was such as to deprive the appellant of his right to have the essential aspects of his defence considered by the jury." 40 The appellant swore an affidavit (dated 29 May 2009) about the circumstances in which he did not give evidence and what evidence he would have given if he had done so. In view of the cross-examination that occurred, to which I will refer below, it is appropriate to admit that evidence. 41 Annexed to the affidavit of the appellant were the two documents which he signed in which he gave instructions concerning his decision not to give evidence. 42 The first such document is headed "Written Instructions" and is dated 25 July 2006. It states: "1 I, MB, have spoken to my barrister (Greg Grogin and John Booth) and solicitor (Jasmina Ceic) in relation to whether I should give evidence or not. 2 I have been advised about the benefits and disadvantages of giving evidence based on my instructions. 3 I am aware of the nature of the evidence that Dr Lee (the forensic pathologist) is going to give before the court. 4 I understand that I am not required to give evidence, as I have a right to silence, and it is the Crown that must prove their case. 5 I confirm that I agree with the advice that I have been given to me from my barrister and solicitor, and I do not wish to give evidence (that being my version of events). 6 I understand that the judge must give the jury a direction that no negative inference can be drawn from the fact that I will not give evidence. 7 I do not know and cannot say who stabbed the deceased." 43 Although the appellant did not accept that his father was present on this occasion, this document bears his father's signature and the inference that his father was present and, accordingly, that the appellant had some support of a personal character when making the decision to give these instructions. In any event, the involvement of his father is expressly accepted by the appellant in the second document. 44 On 27 July 2006 the appellant signed a document headed "Final Instructions" which states: "I, MB, want to confirm my instructions to my barrister and solicitor that I do not want to give evidence from the witness box in my trial at Newcastle. I know I have the opportunity to tell the jury my version of events under oath and then would be cross examined by the Crown. My legal representatives informed that that Dr Lee, the Forensic Pathologist rejected completely my version as to how the injury to Zane McCready happened. I understand that the jury will be expecting me to give evidence but the Judge will tell the jury how to deal with my not giving evidence. I understand we will be relying on the Crown not being able to prove beyond a reasonable doubt that I am guilty. This is my decision. I have discussed it with my father also. I have not been forced to make or give these instructions." 45 Counsel for the appellant submitted that his client was inadequately advised in relation to his election whether to give evidence. He submitted that trial counsel failed to explain, with sufficient specificity, the advantages and disadvantages of giving evidence, relying on generalised statements only. 46 The appellant's evidence is that he cannot recall any identified advantages of giving evidence, and can recall one main disadvantage, namely that his evidence would be contradicted by Dr Lee, the forensic pathologist. 47 Mr Torpey submitted that the Court should consider the subjective circumstances in which the appellant was asked to make the election: he was vulnerable, a juvenile, from a different culture, and he was required to make the election in a limited time frame. However, Mr Torpey acknowledged that the appellant's father signed his first statement and that in the second statement the appellant noted that he had discussed the decision with his father. 48 Mr Torpey submitted that trial counsel failed to explain to the appellant that, if he did not give evidence, this effectively meant that he would not be able to rebut the evidence of the young men or the DNA evidence. Trial counsel also failed to explain the potential utility to the appellant of the jury understanding what was going through his mind at the time of the struggle. 49 As such, Mr Torpey submitted that the appellant was not told that his failure to give evidence would mean that he had no defence. He submitted that it was possible that, having heard the appellant's evidence, the jury could have convicted him of manslaughter rather than murder. 50 He also submitted that the effect of trial counsel's incomplete advice prevented the appellant from making an informed decision about whether to give evidence, and effectively deprived the appellant of his right to present his case to the jury. 51 Mr Babb SC submitted that trial counsel's decision not to call the appellant was reasonable and that any gains made by the appellant giving evidence could have been outweighed by possible disadvantages, particularly arising from the contradiction of his account by the forensic pathologist, Dr Lee. 52 This is a reference to the possibility, on which Mr Torpey placed major reliance in submissions to this Court, that if the appellant inflicted the fatal blow, then it could have happened when he was being attacked by the deceased. 53 The factual basis for this proposition was the suggestion that the deceased's death occurred because the glass object that caused his death was in the hand of the deceased, who was attempting to force it towards the appellant, and that the appellant defensively pressed it back towards the deceased. There was evidence that could be understood to support such a proposition in the appellant's affidavit in this Court outlining the evidence he would have given at trial. 54 As the Crown submitted, Dr Lee's evidence was a direct contradiction of the appellant's account of the struggle, insofar as it suggested that he 'pushed back' the hand of the deceased. That scenario was put directly to Dr Lee by the Crown at trial. 55 Dr Lee rejected the appellant's account of the struggle on the basis of bone damage and the nature of the wound track. He said: "I think I would find it very difficult to come to such an interpretation in the sense that the pointers that would go against it is that this is an injury which has required some degree of – not just heavy force but some degree of impact, to break off fragments of glass, the two fragments that we know of, and possibly other fragments but we can't know for sure. The fact is that we've also got bone damage, which to me indicates an impact rather than just a normal pushing effect. If for example, a knife were to be pushed into somebody during the course of the sort of struggle you've just indicated that would be far more feasible in the sense that it takes relatively little force to do that. But to damage bone requires a considerable amount of force. Here we have two areas of bone damage, one deep and one shallow. And I think we've also got to consider the fact the wound track which, as we've indicated, is quite sharply from above going down and you would be then asking me to postulate something where the deceased would be holding the glass item. And assuming that he had it on this part of his hand it would then have to go in like this, very hard, breaking bone, and then come down this way. And I think putting together all of those options just to me makes it an extremely unlikely possibility." 56 It is pertinent to note that this evidence was adduced by the Crown in chief. Presumably, the defence had indicated the possibility of advancing the 'pushing back' alternative. Dr Lee's evidence is of considerable force. In light of that evidence, trial counsel cannot be faulted for not calling the appellant to advance a case that he 'pushed back' the deceased's hand. 57 In any event, in terms of any relevance this alternative case may have had as a foundation for a submission that a miscarriage of justice had occurred, the evidence was qualified during the course of the appellant's cross-examination in this Court. The appellant accepted that was not the case which he sought to advance at the trial. Indeed, the case that he sought to advance was the very case that his counsel at trial did advance, namely that somebody else must have inflicted the fatal injury. The transcript of the trial indicates that trial counsel did pursue a case that there was reasonable doubt that it was the appellant who inflicted the fatal injury. 58 I refer to answers in cross-examination in this Court: "Q Did a bottle go into the neck of the deceased while you were standing right next to him? A I couldn't say because I didn't see any bottle go in. Q You never saw any bottle? A No. … Q Sorry did you see a bottle at any time in the hands of the deceased? A At one stage I did see something which appeared to be some sort of glass which I was trying to defend myself from. Q And – A Coming – which was coming from the victim. Q And did that bottle go into his neck? A I'm not aware if it did go in or not. Q Did you push your hand towards the neck of the deceased? A I didn't push my hands towards his upper area, head region, away from him defending myself. Q At the time of the trial was it your belief that a bottle had gone into the neck of the deceased at a time when you were standing right next to him? A No it was not by belief. Q That wasn't your belief? A .. (not transcribable) .. Q It was your belief was it that someone else had been responsible for stabbing the victim in the neck with a bottle? A Yes that's my belief. Q And you said in a letter to the court upon sentence that 'The real perpetrator or perpetrators are still free from prosecution as we speak'? A Yes. Q So your case at trial was that it someone else other than you? A Yes. Q And that was the case that was run by your counsel on your behalf, wasn't it? A Yes it was." 59 After this cross-examination, the Crown did not read the affidavit of trial counsel, Mr Grogin. The failure to tender any evidence in reply to the appellant does mean that his version of what he was told is not contradicted. 60 With respect to the suggestion of inadequate advice, the appellant said that he remembers that he was told that his evidence would be "contradicting" which, as the references to Dr Lee in the two signed instructions suggests, was a reference to that evidence. All that the appellant said about the advantages of giving evidence was that he could not remember being told "about any benefits". There is insufficient evidence, in the light of the two signed statements of "instructions", to conclude that the appellant was not properly apprised of the risks and benefits involved in not giving evidence. Moreover, although he was a young man in a vulnerable position, his father was able to provide support. 61 In this Court, Mr Torpey emphasised the necessity for the appellant to contradict a strong Crown case. Mr Torpey submitted that the appellant's only hope was to give evidence. He focused, in this respect, on the strength of the case based on DNA evidence and the testimony of the other young men, as well as other evidence, to which it is unnecessary to refer. In particular, Mr Torpey emphasised the evidence of a bottle fragment upon which the appellant's DNA had been found and which came from the bottle that caused the death. This was clearly significant evidence. 62 However, as Mr Babb SC submitted, trial counsel took a forensic decision about the best means of addressing the DNA evidence, which was to put to the jury evidence from JH that provided an alternative explanation for the presence of the appellant's DNA on the bottle. Trial counsel relied on JH's evidence that someone grabbed his bottle and took a swig from it prior to it being smashed. This was a reasonable way for trial counsel to address the DNA evidence. 63 For example, in his closing address to the jury trial counsel said: "From that bottle of Woodstock, somebody took a swig. That could have been MB. That therefore could explain his DNA being on the mouthpiece of the piece which was found five metres south of marker A." 64 In my opinion, it was reasonably open to trial counsel to approach the DNA evidence in this way. 65 As I have indicated, it was also suggested that the appellant had to be called to contradict the case of the other young men whose evidence, at least collectively, indicated that it was the accused who caused the injury. However, as discussed at [29]-[34] above in the context of Particular 2, trial counsel adopted a reasonable approach to testing their evidence. It was open to him to determine that the case would not be strengthened by calling direct evidence in rebuttal. 66 There was, in my opinion, no miscarriage of justice. GROUND 2 The learned trial judge erred by directing the jury to consider self-defence and excessive self-defence. 67 Justice Howie instructed the jury on the possibility that the appellant had acted in self-defence. This was a possibility that had arisen in the course of the trial. His Honour was obliged to instruct the jury in this regard. (Pemble v The Queen (1971) 124 CLR 107.) 68 The present case is a classic example of a Pemble situation. Counsel for the appellant at trial pursued, in accordance with his express instructions, the primary defence case that the fatal blow was inflicted by someone else, or at least that the Crown had not proven beyond reasonable doubt that the appellant had done so. Counsel could not address the jury on the basis that if the appellant had inflicted the blow, then it was done in self-defence by the 'pushing back' action, referred to above, or otherwise by an act of self-defence. Counsel at trial could leave it to the judge to address the jury on that alternative. 69 Indeed, counsel at trial had asked Howie J, contrary to the Crown submission, to leave self-defence to the jury, even though he did not propose to address on it. That was an appropriate tactical choice. In the circumstances, Howie J was obliged to accede to that request. (See R v Strang Court of Criminal Appeal (NSW), 10 December 1990, unreported, at 2-3; R v Marshall Court of Criminal Appeal (NSW), 17 July 1990, unreported, at 1; R v Muratovic [1967] Qd R 15 at 20, quoted in Zecevic v DPP (Vic) (1987) 162 CLR 645 at 665.) 70 The most relevant passages from Justice Howie's summing up are at 40: "… if you get to this issue of self-defence, if that is a matter that you feel has been raised and has to be determined by you, at the end of the day, you must have concluded beyond reasonable doubt, that the accused inflicted the injury. If you are not satisfied of that fact there is no purpose or point in sitting around, cogitating about whether or not the person who did acted in self-defence." and at 41: "You only consider self-defence if Mr Grogin has failed in his submissions and arguments to you and you have accepted the evidence beyond reasonable doubt on whatever basis you concluded, that it was the accused who was the person who inflicted the fatal injury on Mr McCready." 71 His Honour also emphasised that the Crown bore the onus of disproving self-defence. 72 In oral submissions, Mr Torpey accepted that the self-defence direction was not in itself inappropriate, and conceded that it was a case to which Pemble applied. However, he submitted that the manner in which the jury's attention was brought to self-defence focused upon a factual scenario which the appellant would have denied in his evidence, ie, that he actually inflicted the blow. 73 I have found the appellant's submissions in this respect difficult to understand. The concession made does, in my opinion, amount to an abandonment of Ground 2. 74 As I understand the appellant's ultimate position in relation to Ground 2, it is that Justice Howie's directions on self-defence were based on the factual scenario of the appellant plunging the bottle down into the deceased's neck in the way the Crown alleged. This focused the jury's attention on that scenario, which the appellant denied. The appellant's case was based on a struggle in which he pushed back. 75 However, the 'pushing back' scenario was not suggested at trial to be the basis for a case of self-defence. That is a matter which has received primary emphasis on the appeal for the first time. As discussed above, counsel for the appellant at trial was entitled to form the view that the 'pushing back' scenario was so inconsistent with the objective and expert evidence that it should not be advanced. Even if Ground 2 were amended to reflect the submission ultimately made, it would be unsuccessful. 76 The orders I propose are: 1 Time to lodge an appeal extended. 2 Appeal dismissed. 77 McCLELLAN CJ at CL: I agree with Spigelman CJ. 78 JOHNSON J: I agree with Spigelman CJ. ********** 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.