Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Moustafa v R [2019] NSWCCA 89 Hearing dates: 10 April 2019 Date of orders: 03 May 2019 Decision date: 03 May 2019 Before: Payne JA at [1]; Wilson J at [65]; Ierace J at [66] Decision: (1) Appeal dismissed on ground 1; (2) Leave to appeal under Rule 4 of the Criminal Appeal Rules (NSW) refused on ground 2. Catchwords: CRIME – conviction appeal – incompetence of counsel – alleged failure of counsel to recall the complainant – alleged failure of counsel to seek a direction from the trial judge about recent invention – alleged failure of counsel to seek a discharge of the jury – whether the forensic judgment of counsel was objectively rational – whether the appellant lost a chance of acquittal that was fairly open – where the appellant changed his instructions to counsel after the close of the Crown case Legislation Cited: Crimes Act 1900 (NSW), s 97 Criminal Appeal Rules (NSW), r 4 Evidence Act 1995 (NSW), ss 46, 65, 192 Cases Cited: Ahmu v R [2014] NSWCCA 312 Alkhair v R [2016] NSWCCA 4 Ali v R [2005] HCA 8; 79 ALJR 662 Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22 Matthews v R [2013] NSWCCA 187 Nudd v The Queen [2006] HCA 9; 80 ALJR 614 Qing An v R [2007] NSWCCA 53 TKWJ v R (2002) 212 CLR 124; [2002] HCA 46 Category: Principal judgment Parties: Ali Moustafa (Appellant) Regina (Respondent) Representation: Counsel: G D Wendler (Appellant) H Roberts (Respondent) Solicitors: Alexanders Lawyers (Appellant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2015/00300859 Publication restriction: None Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Before: Traill DCJ File Number(s): 2015/00300859 HEADNOTE [This headnote is not to be read as part of the judgment] The appellant was convicted of robbery armed with an offensive weapon. During the course of his trial, the appellant gave different versions of his instructions at different times to his lawyers. At trial, the appellant gave evidence that he was attacked by the complainant with a knife. This evidence was the subject of instructions given to his lawyers, for the first time, after the complainant had given evidence and the Crown had closed its case. During cross-examination, counsel for the Crown put to the appellant that he had invented this version of events. The issues on appeal were: (i) whether a miscarriage of justice was occasioned by the failure of trial counsel for the appellant to deal with an issue of recent invention; and (ii) whether a miscarriage of justice was occasioned by the failure of trial counsel for the appellant to seek a direction from the trial judge in the summing up concerning the Crown's allegation of recent invention evidence. In relation to issue (i), the Court, dismissing the appeal, held at [40]-[59]: The objective circumstances, based on an examination of the record of the trial, indicated that the appellant had a fair trial. The forensic choices of trial counsel, determined objectively, were not only rational, but compelling. The impugned conduct was capable of being rationally explained as a step not taken in the interests of the appellant because: (1) to recall a complainant who was argumentative and difficult would only have made the issue of recent invention central; (2) to invite the trial judge to give a direction about recent invention in circumstances where the issue had not been raised by her Honour would only have brought squarely to the jury's attention the issue of recent invention; and (3) to seek a discharge of the jury in circumstances where there was no basis for such an application was not an appropriate course for counsel to take. Ultimately, the appellant has not established that what occurred at the trial gave rise to a miscarriage of justice in the sense that the appellant lost a chance of acquittal that was fairly open. Alkhair v R [2016] NSWCCA 4; Nudd v The Queen [2006] HCA 9; 80 ALJR 614; Ali v R [2005] HCA 8; 79 ALJR 662; Matthews v R [2013] NSWCCA 187; TKWJ v R (2002) 212 CLR 124; [2002] HCA 46; Ahmu v R [2014] NSWCCA 312; Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22; Qing An v R [2007] NSWCCA 53 applied. In relation to issue (ii), the Court, refusing leave to appeal, held at [61]-[63]: It would have been foolish for trial counsel to have sought a direction from the trial judge in circumstances where her Honour had said nothing about any apparent change in the appellant's case, let alone anything touching upon a recent invention. To have persuaded the trial judge to give such a direction could only have brought squarely to the jury's attention a real problem with recent invention in the appellant's case. Judgment 1. PAYNE JA: On 8 June 2017, the appellant was convicted following a trial before Traill DCJ and a jury of robbery armed with an offensive weapon: s 97(1) of the Crimes Act 1900 (NSW). On 15 September 2017, the appellant was sentenced to a period of imprisonment comprising a non-parole period of 2 years and 8 months commencing 8 June 2017 and a balance of term of 1 year and 10 months, being a total period of imprisonment of 4 years and 6 months. Although leave to appeal is required, at least in relation to ground 2 of the appeal, I will refer to Mr Moustafa as "the appellant". The Crown case 1. On 14 February 2015, the appellant assaulted the complainant and stole various items from her home unit in Eastlakes. The complainant gave evidence that she had invited the appellant and his partner, a Ms Fizzell, into her unit at the request of a mutual acquaintance, a Mr Tashman. The complainant, the appellant and Ms Fizzell were expecting Mr Tashman to arrive at the unit and supply the appellant and Ms Fizzell with illegal drugs that they had earlier purchased from him. 2. After some time, the complainant retired to her bedroom and left the appellant and Ms Fizzell in the living room. The complainant heard the appellant making a call, saying "You stupid gronk, where are you?" The complainant assumed he was speaking to Mr Tashman who had not arrived as arranged. 3. The appellant entered the complainant's bedroom and said something similar to, "[W]hat are you doing? Hassan [Tashman] is not here. You're up to something with him." The appellant grabbed the complainant's phone and she asked for her phone back. The appellant then pulled out a knife and held it to her throat. The appellant pushed the complainant into the spare bedroom and smashed her head against the wall. The complainant fell down and the appellant kicked her in her left side. The appellant then left with Ms Fizzell. The complainant went into the living room and saw that her passport, laptop, bicycle and mobile phone were gone. 4. On 15 February 2015, the complainant went to the police and was medically examined. She had bruising to her ribs and head. 5. On 14 September 2015, the complainant identified the appellant as the assailant during a photographic array identification procedure. Trial proceedings Pre-trial issue 1. The appellant's original instructions to his lawyers were that he was not present on 14 February 2015 at the complainant's home and her identification was mistaken. On 30 May 2017, Mr Lucas, counsel for the appellant at the trial, sought to have the trial judge exclude the photographic array identification evidence. On 31 May 2017, the objection was argued. 2. The trial judge ruled that the photographic array identification evidence was admissible. Following that ruling, the appellant provided new instructions to Mr Lucas and his instructing solicitor, Ms McKenzie, namely that he was present at the complainant's home on the evening in question but that he did not assault the complainant and did not steal any of the complainant's property. Complainant's evidence at the trial 1. On 31 May 2017, the complainant gave evidence in chief. On 1 June 2017, the complainant was cross-examined by Mr Lucas. The case put to the complainant during cross-examination was that the appellant did not assault her and did not rob her of any property. 2. Mr Lucas put to the complainant that the appellant was in the complainant's unit to await the arrival of Mr Tashman who was expected to deliver illegal drugs to be consumed at the unit. Although no questions specifically concerning the knife were asked by Mr Lucas, it was put to the complainant that the appellant left the unit when it became apparent Mr Tashman was not going to arrive. Mr Lucas put to the complainant that she had falsely told the hospital that her injuries were caused by the appellant. The complainant gave evidence that the appellant "pulled out a knife and held it to my throat". The complainant then gave evidence of the assault and robbery s described at [4] above. The complainant was asked these questions in cross-examination: "Q. I want to suggest to you that you weren't slammed into a wall in the second bedroom at all. That's not true. You can agree or disagree with that. A. I disagree. Q. You weren't knocked to the ground and kicked. A. I disagree. Q. The reality was, and I suggest to you, is that these people had come to your house whilst Hassan [Tashman] was off scoring drugs, and that having scored drugs he was to come back to your house and you could have some? A. That's an interesting proposition, but it's not true. … Q. I want to suggest to you that when you presented to the hospital you were telling them falsely that the injuries you had were caused by the man that had been at your flat the night before? Is that right? A. I told them the truth, like I'm telling the truth now. HER HONOUR Q. So I take it you disagree? A. I disagree. Q. I want to make it perfectly clear: I'm suggesting to you that your phone or laptop and your bike were not stolen by the man. A. I disagree. Q. You see, that man left your home unit when it became apparent Hassan was not going to arrive. Isn't that right? A. No. He left as I said he left. Q. And because you told him to get out, because Hassan was not going to arrive at the home unit. Isn't that right? A. No, that's not remotely right. No." Appellant's evidence 1. On 7 June 2017, the appellant gave evidence. It is now clear that the version of events the appellant gave in his evidence was not consistent in critical respects with either of the original versions of his instructions, set out at [7]-[8] above. In particular, the appellant gave evidence that he was attacked by the complainant with a knife. As will become apparent, this evidence was the subject of instructions given to his lawyers, for the first time, after the complainant had given evidence and the Crown had closed its case. 2. The appellant stated that he had never met the complainant before 14 February 2015 when he went to her unit at 8.30 or 9pm. Earlier that evening, the appellant was with Ms Fizzell and they discussed buying a quantity of the drug "ice". At 5 or 6pm on 14 February 2015, he contacted Mr Tashman from whom he had purchased ice in the past. Mr Tashman met with the appellant and Ms Fizzell and the appellant paid Mr Tashman $500 in cash. Mr Tashman told him to wait for him at the complainant's unit where he would deliver the ice to him in roughly two hours' time. The appellant and Ms Fizzell went to the complainant's unit and mentioned Mr Tashman's name at the front door. The appellant and Ms Fizzell smoked marijuana while they waited for Mr Tashman. The appellant then gave the following evidence: "Q. At any stage whilst you were waiting, did things change between you and [the complainant]? A. No. Q. Did something happen during the time that you were waiting that caused you to be concerned about whether you could stay or not? A. No. Q. What time did you leave? A. About 10.30. Q. Why did you leave? A. We left because at that time, she kept on, she came out of the, she came to the living room, she looked pretty sick, she came out of the bedroom maybe three, four occasions, in and out of the bedroom, and the, the last occasion she just went crazy, went to the kitchen, grabbed a knife and just screamed out, "Get the" - sorry for my language but – "Get the fuck out of my house, get the" - and I feared for my life, it was a big knife about that big. Q. You've indicated about 12 inches. A. Yeah it was like a big kitchen knife. Q. How did you react to that? A. I just, I, I freaked out, I, I was scared for my missus, the look on her face 'cause she was freaking out, she was near the door, I didn't know she was going to stab us, if we were going to walk out. Q. So what did you do? A. I, I had a chance to disarm her. Q. What did you do? A. I disarmed her, I took the knife out of her hand. Q. How did you do that? A. I just grabbed her hand, came grabbed her hand, while I had a chance I can grab her hand, and pulled the knife and chucked the knife out of her hand, swear, that's what, that's what happened I swear to Allah that's what happened. Q. What happened next after you've done that? A. I've just grabbed her, she's just going crazy, and I've just chucked it in a room and I've held the door and I told my missus, "Please pack up everything, let's get out of here"." 1. The appellant gave evidence that he did not assault the complainant and that he did not steal her property. Cross-examination of the appellant 1. On 7 June 2017, counsel for the Crown cross-examined the appellant. He put to the appellant that he had invented the version of events involving the complainant attacking him with a knife. The appellant gave the following evidence: "Q. You've sat there and listened to all of the evidence in this trial, correct? A. Yes. Q. You listened to all of the questions and answers given by [the complainant]? A. Yes. Q. Do you remember [the complainant] being asked whether she went crazy and screamed at you, "Get the fuck out of my house" and grabbed a knife? Was she asked those questions? A. What was that? Q. Do you remember [the complainant] being asked if she went crazy and screamed "Get the fuck out of my house" and grabbed a big kitchen knife? Do you remember [the complainant] being asked about that when she gave evidence? A. Yes. Q. She was? A. What? Q. Was she asked those questions when she gave evidence? A. That she grabbed a knife? Q. Yes, A. Who asked her the - you? Q. I'm asking you. You sat here and listened to the evidence like the jury has. Was she asked about it? A. Which person asked the question? Q. I'm asking you, do you remember her being asked about it? A. About her grabbing a knife? Q. See, I want to suggest to you she wasn't asked about it. She wasn't asked about it because you've made it up. What do you say to that? A. I didn't make nothing up, and that's the honest truth. Q. The thing about [the complainant] going crazy in the bedroom and you holding the door because she was inside, yelling and swearing and banging - you made all that up too? A. No, I didn't. I wish I gave her that 50 bucks so she wouldn't be like that. Q. She never asked you for money. A. She did ask me for money. I wish I gave it to her and none of this would have happened. Q. You met up with Mr Tashman the next day, correct? A. Yeah. Q. Did you tell him about [the complainant] going off and pulling a knife on you? A. Yeah, I told him. Q. You told him? A. Yeah. Q. You told him that his friend was going off and threatened you with a knife? A. Yeah, she went crazy. Q. That must have been frustrating - no, sorry, I withdraw that. It wouldn't have been frustrating. You must have thought, "What the hell is going on here, Mr Tashman?" A. In shock. Q. You would have been. Did you say that to him? A. Yeah, I was in shock. Q. You see, you didn't mention it to Tashman because it never happened. You're shaking your head. Can I take it you disagree with that? A. No, that did happen. All I ever wanted to do was just to spend a beautiful day with my missus. That's all I did. That's all I wanted to do." Evidence of Ms McKenzie 1. On 7 June 2017, Ms McKenzie, the appellant's solicitor in the trial proceedings, was permitted to give evidence that Ms Fizzell was not available to give evidence due to illness. Ms McKenzie was not cross-examined. Closing address 1. On 7 June 2017, counsel for the Crown in closing address submitted that the appellant's version of events ought be rejected: "The Crown has to prove each element of the charge beyond reasonable doubt. The accused didn't have to give evidence but he's chosen to give evidence and you can assess his evidence just like you can every other witness. But before I make some further observations about his evidence I make this clear in relation to the accused's evidence, [the] Crown says that that version that he gave to you today about [the complainant] confronting him with a knife, in a rage, is so incredibly unbelievable that you would reject it outright. … Now, you wouldn't accept any of that, as being even remotely possible. Of course, [the complainant] gave evidence here over a couple of days, [the complainant] wasn't asked about any of that. It wasn't suggested to her that that, any of that happened. You can probably imagine she, how she would have reacted to it, to those suggestions put to her. You heard me suggest to the accused that it was, was all made up by him, that none of it was true. And I invite you members of the jury to take the same view about that evidence of the accused." 1. This was the only mention in closing address for the Crown about any issue relating to the use of a knife by the complainant. Defence counsel's closing address 1. On 7 June 2017, Mr Lucas in closing address submitted that, even if one rejected the appellant's evidence, the Crown must prove its case beyond a reasonable doubt and the jury could not be so satisfied: "You'll recall that the accused gave evidence. You'll recall what my friend for the Crown said about his evidence. Even if you didn't believe a word of it, this is not really a contest between whether you believe this person or that person. Even if you disbelieve the accused you've still got to be satisfied beyond a reasonable doubt you can accept the evidence of [the complainant]. Of course, repetitious but worth observing is that in these circumstances I suggest to you, you couldn't be satisfied beyond a reasonable doubt about her accuracy and reliability on those issues, given her problems in the evidence about why this person was coming there, her knowledge of Mr Tashman, the extent of her injuries, the unlikelihood of her going to the pub afterwards and wandering around and only later going to police and hospital. The accused gave evidence. I may tell you that in a criminal trial an accused person is under no obligation whatsoever to give evidence. Had the accused elected not to give evidence he would continue to sit where he's sitting now and no one would've been able to tell you that you should draw an adverse inference against him because he elected not to give evidence. Again, it comes back to the principle which should be the fore[front] of your deliberations, has the Crown proved its case beyond a reasonable doubt. Having given evidence, he knew he was going to face cross-examination and he was, but if at the end of his evidence you thought what he said and his denials were true, you would acquit him, if you thought there was a possibility that they were true you would acquit him and if you don't believe a word he said you've still got to look at the Crown case before you could return a verdict of guilty. This is one of the difficulties when you're assessing the evidence of someone like this accused in this trial. … This is not a popularity contest. The accused is not asking you to fall in love with him or like him. He's telling you what happened and people live their life different ways." Trial judge's summing up 1. On 7 June 2017, the trial judge gave the summing up. Her Honour directed the jury in conventional terms that they did not have to accept the accused's version in order to acquit him and that it was for the Crown to establish each element of the charge beyond reasonable doubt. 2. Her Honour said nothing about the topic of the appellant's evidence concerning the complainant attacking him with a knife and did not say anything relating to the Crown's submission about the absence of questions addressed to the complainant on that topic by Mr Lucas. The appeal 1. By notice of appeal dated 18 October 2018, the appellant sought to appeal against his conviction on two grounds: 1. that in all the circumstances there has been a miscarriage of justice occasioned by the appellant by reason of the failure of his counsel to deal at all with an issue of recent invention alleged by the prosecution against the appellant; and 2. that in all the circumstances there has been a miscarriage of justice occasioned by the appellant by reason of the failure of his counsel to seek a direction from the trial judge in the summing up concerning the prosecutor's allegation of recent invention by the appellant. Further evidence on the appeal 1. To address the appellant's complaint that a miscarriage of justice was occasioned by the failure of counsel for the appellant at the trial to deal with the issue of recent invention, further evidence was given in this Court. Counsel for the appellant in this Court, Mr Wendler, read affidavits by the appellant sworn on 13 November 2018 and the appellant's current solicitor, Stephen Alexander, sworn on 22 October 2018. For reasons which will become clear, it is unnecessary to consider Mr Alexander's evidence further as neither party referred to it and it was wholly derivative, comprising letters exchanged by his firm with Ms McKenzie and Mr Lucas. The Crown read affidavits by Ms McKenzie sworn on 25 March 2019, and Mr Lucas sworn on 26 March 2019. 2. The appellant's affidavit asserted the following version of events: 1. On 23 May 2017, the appellant met with his legal representatives, Mr Lucas and Ms McKenzie, for the first time. Mr Lucas explained that a key issue in his trial was identification. This was predominantly the matter which Mr Lucas discussed with him during the conference. Mr Lucas said words to the effect of "We will make an application to have the photographic evidence excluded". 2. On 31 May 2017, the appellant had several conversations with his legal representatives whilst seated in the dock and in the cells. During the course of the complainant giving her evidence, the appellant whilst seated in the dock said to Ms McKenzie words to the effect of "[The complainant] was the one who started it all, she became aggressive and came out of the kitchen with a big knife". The appellant stated that this was the first occasion on which he instructed his legal representatives about this version of events. 3. Later that day, the appellant gave the following instructions to Mr Lucas and Ms McKenzie: "It was Valentines day. Me and my missus were invited to this place where I had to wait for Hassan [Tashman]. When we got to the place, Hassan wasn't there but the girl invited us in. We had a drug session, after that the girl kept going in and out of the bedroom. The last time she came out, she started freaking out, she grabbed a huge knife and started yelling "get out". I freaked out because I didn't know if she was going to attack us. I said to Vanessa [Fizzell] "pack everything up" [The complainant] was standing next to the door, I didn't know if she was going to attack us. I saw an opportunity to disarm her, I grabbed her, pulled the knife from her hand that threw it away. I then chucked her in the bedroom and held the door shut waiting for my missus to pack up, once she was done we got out of there and left." 1. On 2 June 2018, the appellant had the following conversation with Ms McKenzie about Ms Fizzell giving evidence in his case: "[Ms McKenzie:] I've spoken to Vanessa [Fizzell], she's very sick and can't come to court today. [Appellant:] I need her to give evidence, can we get an adjournment for her to get better? [Ms McKenzie:] We can't do that." 1. Later that day, the appellant recalled having a conversation with Ms McKenzie and Mr Lucas in the cells to the following effect: "[Mr Lucas:] Vanessa [Fizzell] isn't coming. [Appellant:] What should I do? [Mr Lucas:] It's up to you whether you give evidence? [Appellant:] What do you think, you guys are the lawyers, what do you think I should do? [Mr Lucas:] It's your decision. [Appellant:] I have nothing to hide, I want to give evidence." 1. The appellant's version of events was essentially destroyed in cross-examination by the Crown in this Court. After giving two incoherent and inconsistent versions of the critical issue about when it was he first gave instructions to his legal advisors about the complainant being the person who had first produced a knife, the appellant eventually said: "[CROWN:] I suggest that the first time that you gave those instructions that [the complainant] had in fact been the one who produced the knife, according to you. The first time you gave those instructions was after the Crown case had closed in a conference with Mr Lucas and Ms McKenzie in the cells. What do you say; do you accept that's possible? A. Yeah, that's right, yeah." 1. The appellant was a very unsatisfactory witness. I would not accept any statement he made other than those made against interest or where there was sufficient independent support for that evidence. 2. Mr Lucas gave the following evidence in his affidavit: 1. On 1 June 2018, the appellant waived legal professional privilege and requested that Mr Lucas respond to questions about his conduct of the trial. On 24 August 2018, Mr Lucas responded to the appellant's questions. On 26 March 2019, Mr Lucas swore an affidavit which annexed his letter dated 24 August 2018 (this was the critical subject matter of the Alexander affidavit discussed at [22] above). 2. Mr Lucas was admitted as a solicitor on 11 July 1980 and came to the bar on 11 February 1983. He was a NSW Crown Prosecutor from 1990 to 1992, and Crown Counsel and Senior Crown Counsel in the Attorney General's Chambers in Hong Kong from 1992 to 1996. He practised as a barrister in New South Wales from 1996 to 2018. He retired on 15 November 2018 after 35 years of practice as a barrister. 3. In May 2017, Mr Lucas accepted a brief to appear for the appellant from Ms McKenzie of Saba El-Hanania Lawyers. On 23 May 2017, Mr Lucas and Ms McKenzie met the appellant for the first time. The appellant instructed him that he did not commit a robbery and that he had never been in the complainant's unit. Mr Lucas stated that, on the basis of those instructions, he attempted to have the photographic identification evidence excluded. 4. After the identification evidence was ruled admissible, the appellant's instructions changed. The appellant instructed Mr Lucas that he was present in the complainant's unit and had gone there to await the arrival of Mr Tashman. The appellant instructed him that he did not assault the complainant and that neither he nor Ms Fizzell removed any property from the unit. On the basis of those instructions, Mr Lucas conducted his cross-examination of the complainant. 5. Mr Lucas believed that there were issues about the credibility of the complainant. Based on conversations with the Crown representatives, Mr Lucas also believed that the complainant's evidence had not gone as well as the Crown had hoped. 6. On 2 June 2018, after the close of the Crown case, Mr Lucas conferred with the appellant in order to review the Crown evidence and discuss whether the appellant would give evidence. The appellant maintained his earlier decision not to give evidence. The appellant also instructed him, for the first time, that the complainant had produced a knife in an attempt to force him out of the unit. When Mr Lucas asked the appellant why he had not mentioned this critical detail earlier, the appellant made a face, shrugged his shoulders and did not give an answer. The appellant did not tell Mr Lucas that he had forgotten to mention the critical fact earlier or that he had made a mistake in not mentioning it earlier. 7. Mr Lucas told the appellant that the complainant had been cross-examined on the basis of the appellant's previous instructions and that an application for further cross-examination was unlikely to succeed. Mr Lucas advised the appellant that even if further cross-examination was permitted it would squarely raise the issue for the jury about when the appellant's new instructions had been given. Mr Lucas formed the view that this late allegation would not help and would more likely harm the appellant's case. 8. On 7 June 2018, before the appellant gave evidence, Mr Lucas warned the appellant about the likely impact of his volunteering that the complainant had used a knife to threaten him. Mr Lucas told the appellant that, whilst the evidence he was about to give was a matter for him, the making of a late allegation unsupported by cross-examination during the Crown case would be seized upon by the Crown as a recent invention and would suggest that the evidence was false. Mr Lucas believed that the appellant understood what he had told him. 9. Mr Lucas stated that, after the appellant gave his version of events, he took the view that there was no basis to seek to withdraw the evidence, to stop the trial for the purposes of obtaining instructions, or to seek a discharge the jury. He took the view that there was no basis to seek a direction from the trial judge that the appellant's version of events was anything other than a recent invention. Mr Lucas took the view that no useful purpose would be served by recalling the complainant for further cross-examination because it was likely that the complainant would simply deny the allegation. He believed that, in any event, an application to recall the complainant would have involved disclosing to the court why the appellant's allegation had not already been cross-examined upon. 10. In relation to Ms Fizzell, Mr Lucas stated that her unavailability was discussed with the appellant, and the appellant had not wanted to delay the trial so she could give evidence. Mr Lucas believed that Ms Fizzell's unavailability was favourable to the appellant. Mr Lucas believed that it was expected Ms Fizzell would give evidence that she had removed property from the complainant's unit. If so, Mr Lucas believed that her evidence would not have helped the appellant's case because it would have confirmed that property was actually removed. The Crown would have then sought to argue a case of joint criminal enterprise between the appellant and Ms Fizzell. Mr Lucas also had concerns with how Ms Fizzell would present before a jury. 1. Mr Lucas gave evidence in a clear and considered matter. I accept his evidence in full. 2. Ms McKenzie gave the following evidence: 1. On 1 June 2018, the appellant waived legal professional privilege and requested that Ms McKenzie respond to questions about her conduct of the trial. On 14 June 2018, Ms McKenzie responded to the appellant's questions (this was also the subject of the Alexander affidavit discussed at [22] above). On 25 March 2019, Ms McKenzie swore an affidavit in which she set out her conduct in relation to the trial and annexed her handwritten notes and text messages. 2. In early May 2017, Ms McKenzie was employed by Saba El-Hanania Lawyers and given carriage of the appellant's matter. 3. On 23 May 2017, Ms McKenzie met with the appellant and Mr Lucas for the first time. During the conference, she recalled that the appellant said, "I didn't do nothing full stop. I just got set up here." Mr Lucas asked, "Why would they set you up?" The appellant said, "I had money on me. I gave the guy $500 to get me ice." Mr Lucas asked, "Where did you get $500?" The appellant said, "From Centrelink." Mr Lucas said, "They give you $400 per fortnight." The appellant responded, "I save my money." Ms McKenzie then left the conference to attend to another client. 4. On 31 May 2017, during the course of legal argument seeking to exclude the identification evidence, Ms McKenzie recalled that the appellant whilst seated in the dock told her that he was present at the complainant's unit. Shortly after, Mr Lucas and Ms McKenzie conferred with the appellant in the cells. The appellant instructed her that he was present at the complainant's unit and that, earlier on 14 February 2015, the appellant and Ms Fizzell had met Mr Tashman and given him money for ice. The appellant and Ms Fizzell told Mr Tashman that they did not want to be waiting around on the street so Mr Tashman provided them with the complainant's address and told them they could wait for him there. The appellant and Ms Fizzell went to the complainant's unit to await the arrival of Mr Tashman. During that time, the complainant asked the appellant for money so that she could buy some heroin. The complainant became agitated and kicked them out of the unit. The appellant and Ms Fizzell packed up their property and left the unit. The appellant stated that at no time did he assault the complainant or steal her property. 5. On 2 June 2018, after the close of the Crown case, the appellant gave instructions, for the first time, that the complainant had attacked the appellant with a knife. Ms McKenzie's contemporaneous notes record those instructions as being "[the complainant] goes in bathroom goes out and comes in kitchen grabs a knife started screaming get the fuck out of the house / I thought she was gonna slash us / I grabbed her took the knife off her and locked her in the bedroom / I told my mrs to pack up the stuff lets go". The appellant's instructions at that time were that he would not give evidence but that Ms Fizzell would give evidence to the effect described immediately above. 6. On 5 June 2017, Ms Fizzell allegedly contracted foot and mouth disease and was not able to attend court to give evidence. Ms McKenzie recalled that Ms Fizzell had attended court every day until she contracted the illness. 7. On 6 June 2017, Ms McKenzie sent a message to Ms Fizzell that stated, "The matter has been adjourned until tomorrow. [The appellant] has asked me to ask you to come. You can get a face mask from the chemist as you're highly contagious. But he wants you to give evidence." Ms McKenzie received a call from Ms Fizzell advising her that she had blisters on her feet and in her mouth and she was in serious discomfort. Mr Lucas advised the court of the extent of Ms Fizzell's illness. 8. On 6 June 2017, Ms McKenzie and Mr Lucas had a further conference with the appellant in the cells. Ms McKenzie said that the appellant advised that he wanted to give evidence. Ms McKenzie drafted written instructions to that effect which the appellant signed. Ms McKenzie recalled that Mr Lucas advised the appellant that there was no independent evidence of a knife, in that the police had never found a knife of the description given by the complainant, and that if he gave evidence of a knife then he would be the person confirming the presence of a knife. 9. On 7 June 2017, Ms McKenzie was permitted to give evidence that Ms Fizzell was not available to give evidence due to illness. 10. On 8 June 2017, after the verdict was given, Ms McKenzie and Mr Lucas attended the cells to see the appellant. Ms McKenzie recalled that the appellant was visibly upset at the verdict and said words to the effect of, "This is bullshit, I've been convicted for something I didn't do, I'm not the one who took her stuff." Ms McKenzie said words to the effect of, "What are you talking about?" The appellant said, "I called out to Vanessa [Fizzell] to grab our stuff and she took the laptop and phone." Ms McKenzie said, "What about the bike?" The appellant nodded and said, "Yeah how else were we supposed to get out of there." Ms McKenzie stated that she said nothing further and they discussed the sentence proceedings. 11. On 21 September 2017, Ms McKenzie filed a notice of intention to appeal on behalf of the appellant. After she became aware that there would be an issue as to incompetence of counsel, she notified the appellant that his matter would need to be transferred to another solicitor. 1. Ms McKenzie's evidence was clear. Her contemporaneous notes were consistent with the version of events she gave and inconsistent with the version given by the appellant. I accept Ms McKenzie's evidence. Ground 1 Appellant's submissions 1. Given the appellant's concessions in cross-examination and my acceptance of the evidence of Mr Lucas and Ms McKenzie it is clear that the first way that the appellant put his case in his written submissions, that the appellant had always instructed Mr Lucas and Ms McKenzie that the complainant was the aggressor who had armed herself with a knife and attacked the appellant, must be rejected. 2. The second way the argument was put was that, even if it were accepted that the appellant instructed Mr Lucas and Ms McKenzie about his version of the events after the close of the Crown case, a miscarriage of justice has nevertheless occurred. It was submitted that Mr Lucas was faced with the following forensic choices: 1. do nothing (which is what occurred); 2. make an application for leave pursuant to ss 46(1)(a) and 192 of the Evidence Act 1995 (NSW) to recall the complainant; 3. if leave was refused, seek a discharge of the jury; or 4. if the discharge application failed, seek a direction to the jury in summing up that a mere failure to cross-examine on a particular topic should not lead to an adverse inference being drawn against the appellant. 1. It was submitted that a miscarriage of justice occurred because: 1. Mr Lucas failed to take remedial action after the appellant instructed him of his version of events after the close of the Crown case. Mr Lucas' "incompetence" exposed the appellant to forensically adverse treatment during cross-examination and to allegations of recent invention. This could only have caused lethal forensic damage to the appellant in the eyes of the jury in an essentially oath against oath trial; and 2. Mr Lucas failed to consider whether Ms Fizzell's evidence could be received via an application pursuant to s 65(2)(c) of the Evidence Act given that Ms Fizzell was a defence witness who was unavailable and had corroborated the appellant's version of events. Crown submissions 1. The Crown submitted, correctly, that the evidence demonstrated that the appellant did not raise this different version of events – that the complainant attacked him with a knife – until after the Crown case had closed. 2. The Crown submitted that, at the outset of the trial, Mr Lucas sought to exclude the evidence identifying the appellant, and, once this evidence was admitted over his objection, the focus during cross-examination of the complainant was upon her credibility and reliability. It was submitted that this was a sound and conventional trial strategy in circumstances where the complainant was a heroin addict, had complained late, had been inconsistent as to details of what was stolen, and had alleged injuries which had not been observed by either the doctor or investigating police officer. 3. The Crown submitted that the course taken by Mr Lucas after the close of the Crown case is well capable of being explained as resulting from objectively reasonable forensic judgments made in circumstances where his client had changed his instructions significantly at a very late stage of the trial. 4. In relation to an application to recall the complainant, the Crown submitted that it was by no means clear that leave would have been granted to recall the complainant pursuant to s 46(1)(a) of the Evidence Act and in light of the requirement to consider s 192. It was submitted that, even if leave was granted, no unfairness was occasioned to the appellant by not having the complainant recalled. This is because recalling the complainant would not have prevented the Crown from suggesting to the appellant that he had recently invented this version of events. 5. It was submitted that there was no basis for an application to discharge the jury. The forensically adverse treatment to which the appellant was exposed was not a result of any failure by Mr Lucas, but entirely as a result of the appellant's conduct. 6. In relation to Ms Fizzell, the Crown submitted, correctly, that Ms Fizzell had given conflicting accounts to Ms McKenzie about what had happened. Ms McKenzie, in any s 65 application, would necessarily have revealed those conflicting accounts to the court. The Crown submitted that there was no realistic prospect of leave being granted to the appellant to adduce only favourable representations made by Ms Fizzell. 7. It was submitted that the unchallenged evidence that Ms Fizzell was unwell, and the evidence, that had she been well she would have been willing to give evidence in the appellant's case, placed the appellant in a better position than he would have been in if Ms Fizzell had been called and exposed to cross-examination. Consideration 1. The legal test engaged here was not controversial. The relevant inquiry is whether what occurred or did not occur at the trial occasioned a miscarriage of justice: Matthews v R [2013] NSWCCA 187 at [62], citing TKWJ v R (2002) 212 CLR 124; [2002] HCA 46 at [79] (McHugh J) and Ali v R [2005] HCA 8; 79 ALJR 662 at [18] (Hayne J). A comparison, between the course of action which the appellant submits should have been taken and the course which was taken, requires an objective inquiry: Nudd v The Queen [2006] HCA 9; 80 ALJR 614 at [9]-[10] (Gleeson CJ), [27] (Gummow and Hayne JJ). There are some limited circumstances in which it is necessary for the appeal court to be apprised of material such as counsel's instructions: Matthews v R at [63]; Nudd v The Queen at [10], [17] (Gleeson CJ). In Alkhair v R [2016] NSWCCA 4, Macfarlan JA (Rothman and Bellew JJ agreeing) comprehensively summarised the applicable principles with respect to incompetence of counsel. I will address each of the four matters identified by the Court in Alkhair. "(1) To the extent possible, an appellate court should determine an appeal involving complaints about a trial counsel's conduct of a case by examining the record of the trial to determine from the objective circumstances whether the accused has had a fair trial." 1. I have examined the record of the trial and determined from the objective circumstances that the accused has had a fair trial. This is essentially because the decisions of trial counsel, which may be discerned from an objective consideration of the record, are not only rational, but compelling. Rational forensic decisions or strategies of trial counsel, determined objectively, do not give rise to a miscarriage of justice: Ahmu v R [2014] NSWCCA 312 at [34] (Basten JA), [56] (Adams J). 2. The context here is that a critical part of the Crown case was that it was the appellant who attacked the complainant with a knife which he held to her throat. No knife was ever recovered by the police. The complainant had been cross-examined to suggest that there were no aggressive interactions between the complainant and the appellant on the relevant evening. The appellant's change of instructions, after the Crown had closed its case, raised obvious forensic challenges. Highlighting the difference between the way the complainant had been cross-examined and the evidence given by the appellant about the knife was potentially forensically disastrous for the appellant. The objective circumstances make clear that counsel for the appellant, acting competently, was perfectly entitled to conclude that each of the suggested strategies suggested in this Court to address the appellant's change of instructions would only have highlighted the difference between the way the complainant had been cross-examined and the evidence given by the appellant about the knife. Not pursuing the issue further was, objectively, in the appellant's interests. "(2) Ordinarily, an affirmative answer to this question is required where the impugned conduct is capable of being rationally explained as a step taken, or not taken, in the interests of the accused. This is so even if the accused alleges on appeal that he or she did not authorise the conduct because the nature of the adversarial system means that the client is bound by the manner in which the trial is conducted on his or her behalf." 1. The record of the trial is replete with careful and rational choices made by the appellant's trial counsel. The three particulars of "incompetence" identified in the appellant's written submissions which I have described at [31] above were: 1. the failure to make an application for leave pursuant to ss 46(1)(a) and 192 of the Evidence Act to recall the complainant; 2. if leave was refused, the failure to seek a discharge of the jury; or 3. if the discharge application failed, the failure to seek a direction to the jury in the summing up that mere failure to cross-examine on a particular topic should not lead to an adverse inference being drawn against the appellant. 1. Each of these submissions must be rejected. 2. As to the asserted failure to make an application for leave pursuant to ss 46(1)(a) and 192 of the Evidence Act to recall the complainant, a scrutiny of the evidence given by the complainant reveals that she was argumentative, disobedient at times, and confrontational with the appellant's counsel. Those are all matters which, objectively, tell in favour of a forensic decision not to have the complainant recalled. 3. I am prepared to assume in the appellant's favour that some potential benefit could, objectively, have been discerned from recalling the complainant and that leave to have the complainant recalled might have been granted. 4. Even making those assumptions, however, it is obvious that the impugned conduct is capable of being rationally explained as a step not taken in the interests of the appellant. Had the complainant been recalled, the Crown could nevertheless have suggested to the appellant that he had recently invented his version of events. The recall of the complainant would have made that submission of recent invention more compelling by putting the issue squarely before the jury. In oral argument, Mr Wendler accepted that recalling the complainant in this case was "impractical". 5. The third particular of "incompetence", that her Honour should have been invited to give a direction about recent invention in circumstances where she said nothing about it in the summing up, should also be rejected. It was a perfectly rational forensic decision not to ask her Honour to explain to the jury anything about recent invention in circumstances where the issue had not been raised at all in the summing up. The failure to seek such a direction is capable of explanation as in the appellant's interest. Mr Wendler also accepted that seeking a direction of the kind suggested in his written submissions was in this case "impractical". 6. The last submission, that a miscarriage of justice was occasioned by counsel failing to seek a discharge of the jury, must also be rejected. In Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22, Toohey, Gaudron, Gummow and Kirby JJ stated, at 440: "No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact." 1. In Qing An v R [2007] NSWCCA 53, Beazley JA observed, at [51], that it is clear from the authorities "that it is a matter for the discretion of the trial judge as to what course to take when an irregularity has occurred" and that "appropriate directions may, in certain circumstances, be sufficient". 2. There was no irregularity in the trial here. There was no basis for an application to discharge the jury. The "forensically adverse treatment" to which the appellant was exposed was entirely as a result of the appellant's conduct. The only reason for the events the subject of this appeal was that the appellant had chosen to give one version of events to his lawyers in conducting the case and then a different version of events after the close of the Crown case. An application to discharge the jury in this case would have been hopeless. Objectively, competent counsel would not consider that making a hopeless application for a discharge of the jury was a proper discharge of counsel's duties. 3. The complaint about Ms Fizzell's evidence is without merit. This topic was not addressed orally by Mr Wendler. Ms Fizzell's evidence was plainly not admissible under s 65(2)(c) of the Evidence Act. The previous representations were not made in circumstances that make it highly probable that the representations were reliable. Even assuming that there was a basis to suggest that the requirements of s 65(2)(c) of the Evidence Act could be met, there was a perfectly rational objective basis not to make the suggested application. Ms Fizzell had given Ms McKenzie two different accounts, namely that (1) the complainant threatened the appellant with a knife, and (2) she, in company with the appellant, had stolen the complainant's property. Ms McKenzie, in any s 65 application, would have, of necessity, had to reveal both conversations with Ms Fizzell to the court. There was no realistic prospect of leave being granted to the appellant to adduce the favourable representation only. In circumstances where the appellant was denying any knowledge of stolen property, Ms Fizzell's evidence that she, whilst in company with the appellant, had stolen each of the relevant items from the complainant would have been potentially devastating for the appellant's case. 4. Objectively, the unchallenged evidence that Ms Fizzell was unwell, and that if she had been well, she would have been willing to give evidence in the appellant's case, placed the appellant in a better position than he would have been in if Ms Fizzell's evidence had been permitted to be led under s 65(2)(c) of the Evidence Act. 5. The objective circumstances of the trial clearly indicate that the forensic choices of counsel for the appellant at the trial were not only open; they were compelling. 6. With respect to Mr Wendler, it was clear and obvious that on an objective consideration of the trial record the assertion that trial counsel was "incompetent" was tenuous at best. After the appellant's evidence in this Court, that assertion was no longer arguable. "(3) Only in exceptional circumstances will an appellate court find it necessary to resort to subjective evidence concerning the applicant's legal representatives' reasoning at trial or to evidence as to communications between the applicant and those representatives." 1. This is not an exceptional case where it is necessary to resort to subjective evidence concerning the appellant's legal representatives' reasoning at trial or to evidence as to communications between the appellant and those representatives. 2. Having said that, all of the subjective evidence, which is set out at [26]–[29] above, points one way. Fundamentally, this trial was conducted carefully by experienced trial counsel. Taking that information into account would only confirm my conclusion that trial counsel did a competent job of representing the appellant and that no miscarriage occurred. "(4) The ultimate question for an appellate court is whether the applicant has established that what occurred at the trial gave rise to a miscarriage of justice in the sense that the applicant lost a chance of acquittal that was fairly open." 1. The ultimate question is whether the appellant has established that what occurred at the trial gave rise to a miscarriage of justice in the sense that the appellant lost a chance of acquittal that was fairly open. For the reasons given, I am satisfied that what occurred at the trial did not give rise to a miscarriage of justice. The appellant did not lose a chance of acquittal that was fairly open. 2. Ground 1 should be dismissed. Ground 2 Appellant's submissions 1. The appellant accepted that he requires leave to appeal under this ground: Criminal Appeal Rules (NSW), r 4. The appellant relied on his submissions in relation to ground 1. It was submitted that Mr Lucas' failures, as set out in ground 1, were compounded by a further failure to seek a direction from the trial judge in summing up that mere failure to cross-examine on a particular topic should not lead to an adverse inference being drawn against the appellant. It was submitted that a direction could have been capable of mollifying the forensic damage to the appellant, in particular to his credibility and reliability as a witness in essentially an oath against oath case. It was submitted that there could not have been any tactical advantage gained by Mr Lucas not seeking such a direction. Consideration 1. In oral argument Mr Wendler accepted that in the circumstances of this case it would have been "impractical" for trial counsel to have sought a direction of the kind the subject of his written submissions. 2. I would go further. It would, objectively speaking, have been foolish for trial counsel to have sought such a direction in circumstances where the trial judge had said nothing about any apparent change in the appellant's case, let alone anything touching upon a recent invention. To have persuaded the trial judge to give such a direction could only have brought squarely to the jury's attention a real problem with recent invention in the appellant's case which had been the subject of only a muted submission by the Crown. 3. Leave to appeal on ground 2 should be refused. Conclusion and orders 1. I propose the following orders: 1. Appeal dismissed on ground 1; 2. Leave to appeal under Rule 4 of the Criminal Appeal Rules (NSW) refused on ground 2. 1. WILSON J: I agree with the orders proposed by Payne JA, and with his Honour's reasons. 2. IERACE J: I agree with the orders proposed by Payne JA, and with his Honour's reasons. ********** 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. Decision last updated: 03 May 2019