Hanna v R

1. [1]

   JOHNSON J: By Notice of Appeal filed on 31 August 2020, the Applicant, Joseph Hanna, seeks leave to appeal against his conviction at the Sydney District Court on 13 December 2016 for an offence of indecent assault under s.61L Crimes Act 1900 committed on 16 December 2014.

2. [2]

   Following a Judge-alone trial, the Applicant was found guilty of this offence by his Honour Judge Berman SC.

3. [3]

   The Applicant also stood trial in November 2016 before her Honour Judge Girdham SC and a jury and was convicted of eight other counts of indecent assault under s.61L Crimes Act 1900. With the agreement of the parties, her Honour Judge Girdham SC sentenced the Applicant for all offences, including the offence for which he had been found guilty by his Honour Judge Berman SC at the Judge-alone trial.

4. [4]

   On 3 November 2017, the Applicant was sentenced to an aggregate term of imprisonment for four years and nine months commencing on 25 November 2014, comprising a non-parole period of three years and four months expiring on 24 March 2018 and a balance of term of one year and eight months expiring on 24 August 2019.

5. [5]

   As part of the aggregate sentencing process, her Honour Judge Girdham SC indicated a sentence of 12 months’ imprisonment for the s.61L offence, for which the Applicant had been found guilty by his Honour Judge Berman SC.

Ground of Appeal

1. [6]

   The Applicant relies upon the following ground of appeal:

Application for Extension of Time

1. [7]

   In support of the application for an extension of time, the Applicant relies upon his affidavit of 21 August 2020. In that affidavit, the Applicant explained he had been refused legal aid for the purpose of the appeal. An appeal against that refusal was itself dismissed by the Legal Aid Review Committee.

2. [8]

   The Applicant’s Notice of Intention to Appeal expired on 18 January 2019 without him having sought a further extension. In May 2020, he retained his present solicitor who acted for him in filing the Notice of Appeal on 31 August 2020.

3. [9]

   The Applicant has been in immigration detention since the expiration of his sentence.

4. [10]

   Section 5(1) Criminal Appeal Act 1912 permits a convicted person to appeal against conviction. Section 10(1)(b) Criminal Appeal Act 1912 permits the Court to extend time for the bringing of an appeal which is otherwise out of time.

5. [11]

   In Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [32], French CJ, Hayne, Bell and Keane JJ referred to provisions allowing extension of time to appeal against conviction and sentence:

6. [12]

   Earlier in Kentwell v The Queen, their Honours said at [29] (footnotes omitted):

7. [13]

   Relevant to the determination of the interests of justice on an application to extend time are the prospects of success should the extension be granted: Kentwell v The Queen at [33].

8. [14]

   The interests of justice test to be applied on the present application for extension of time focuses attention upon the merit of the application itself, against the background of a trial which took place in December 2016 and concerned an offence alleged to have been committed on 16 December 2014.

Hearing of the Appeal in this Court

1. [15]

   At the hearing in this Court on 29 September 2021, Mr Norrie of counsel appeared for the Applicant.

2. [16]

   Mr Norrie read the following affidavits in the Applicant’s case:

3. [17]

   The Crown relied upon the following affidavits:

4. [18]

   At the hearing in this Court, the Applicant gave evidence and was cross-examined (T7-15). An Arabic interpreter was present during the hearing of the appeal, but the Applicant did not require his assistance for the purpose of giving evidence.

5. [19]

   Each of Ms Heathcote (T16-30) and Mr Gleeson (T31-40) gave evidence and was cross-examined in this Court.

Principles to be Applied on Appeal Based Upon Alleged Incompetent Legal Representation at Trial

1. [20]

   In Tsiakas v R [2015] NSWCCA 187, Beech-Jones J (Leeming JA and myself agreeing) said (at [42]-[44]) with respect to appeals based upon alleged incompetent representation:

2. [21]

   In Roach v R (2019) 344 FLR 429; [2019] NSWCCA 160, the Court (Bathurst CJ, Bell P and myself) said at [154]-[159]:

3. [22]

   In this appeal, the Crown read, without objection, the affidavits of the Applicant’s trial counsel (Mr Gleeson) and trial solicitor (Ms Heathcote). It was appropriate to receive these affidavits, upon which each deponent was cross-examined, given the allegations made by the Applicant concerning the conduct of the trial by his former legal representatives.

Legal Advice Concerning Accused Giving Evidence at Criminal Trial

1. [23]

   In circumstances where Ground 1(c) and (d) complain with respect to the Applicant not giving evidence at the trial, it is appropriate to refer to the decision of the High Court of Australia in Craig v The Queen (2018) 264 CLR 202; [2018] HCA 13. In that case, it was accepted the decision as to whether an accused person gives evidence at his trial is for that person, not his counsel. In that case, the appellant declined to give evidence after he received incorrect legal advice as to the likelihood that, if he did give evidence, he would be cross-examined on his prior convictions. The Court (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) said at [3]:

2. [24]

   In dismissing the appeal, the High Court said in Craig v The Queen at [32]-[36] (footnotes omitted) (emphasis added):

The Trial of the Applicant

1. [25]

   The Judge-alone trial of the Applicant proceeded on 7 December 2016. The Applicant had the assistance of an Arabic interpreter throughout the trial.

2. [26]

   It was the Crown case that the complainant, TS, was operating a business selling Amway products. It was alleged that on the day of the offence, 16 December 2014, TS went to the Applicant’s home in order to deliver some products to him. The Applicant met her outside the front of the house. TS said that the Applicant put out his arms to hug her and she hugged him back briefly, but then let go of him. TS stated that the Applicant continued with the hug, moved closer and put his head on her shoulder. She said some comforting words in relation to the court case which he had told her about on the previous day.

3. [27]

   TS stated that the Applicant then pulled himself up against her body so that she could feel his erect penis. He began kissing her neck with an open mouth. TS pushed him away and reminded him that she was married. She then went into his house for a period of about 15 minutes and showed him the products that she had brought. After that, TS complained to her husband, read an internet article about the charges the Applicant faced and went to the police to report the incident (T3-5).

4. [28]

   The Crown prosecutor particularised the offence as the Applicant’s act of kissing the complainant whilst pressing his body against her, including his erect penis (T4).

5. [29]

   Defence counsel opened at the trial and indicated that the bulk of the evidence to be led by the Crown was not in dispute. This included that the Applicant had only met the complainant the day before the day of the alleged offence and that, on their first meeting, there had been a hug although without any incident of indecency. The Applicant’s case was that he accepted that, on the day of the offence, he hugged the complainant and kissed her on the cheek, but he disputed kissing her neck and pressing his penis against her (T5).

6. [30]

   The cross-examination of TS was conducted principally on the basis that the hug she received from the Applicant was no different to the hug she received the previous day about which she did not complain (T29), after which she accompanied the Applicant into his home. It was put to TS that she was mistaken about where she was kissed and about whether the Applicant’s penis was erect. It was suggested that this mistake arose wholly or partly because, following the incident, TS had read articles concerning the Applicant’s other charges (T31). Other aspects were explored in cross-examination, including possible inconsistencies in the complainant’s description of events (T29).

7. [31]

   Apart from TS, the Crown called Yvonne Kairouz, a friend of TS (T39-49) and AS, the husband of TS (T56-57). Detective Senior Constable Tim Miller was also called by the Crown (T59-62).

8. [32]

   The Applicant did not give evidence at the trial. He had not participated in an electronically recorded interview with police.

9. [33]

   Trial counsel for the Applicant, in his closing address, did not deny that something had occurred on the day in question between the Applicant and TS. It was argued that there had been a hug, but not indecency (T80-81). Within that submission, there was reference to the items that TS was carrying in such a way that the ordinariness of their embrace was said to be obvious (T81).

Judgment after Judge-Alone Trial

1. [34]

   As noted earlier, the evidence in the trial was completed on 7 December 2016. Closing addresses were made on 8 December 2016 following which the trial Judge reserved his decision until 13 December 2016.

2. [35]

   Given the grounds of appeal, it is not necessary to set out in detail the decision of the trial Judge finding the Applicant guilty of the offence. No complaint is made concerning any directions or findings contained in his Honour’s judgment.

3. [36]

   The trial Judge said with respect to the evidence of TS (pages 6-7):

4. [37]

   After addressing other aspects or the evidence, including submissions made by trial counsel for the Applicant, the trial Judge expressed the following conclusions (pages 12-13):

5. [38]

   After identifying the elements of the offence, the trial Judge concluded (pages 14-15):

Evidence Adduced at the Hearing Before this Court

1. [39]

   In this Court, the Applicant gave evidence by audio-visual link from the Melbourne Immigration Detention Centre. As noted earlier, an Arabic interpreter was present at the hearing, but his services were not needed as the Applicant appeared to have a more than reasonable command of English.

2. [40]

   The affidavits of the Applicant made a range of allegations concerning the conduct of his trial by his then legal representatives. It is necessary to confine attention to the two aspects about which complaint is made in the ground of appeal pressed in this Court (see [6] above).

3. [41]

   In his affidavit affirmed 26 March 2021, the Applicant stated that, during an adjournment after the close of the Crown case, he spoke to Mr Gleeson and Ms Heathcote and told them that he wished to give evidence in the defence case at the trial. He stated that he was advised not to give evidence and that he felt pressured into not giving evidence. He stated that he maintained his instructions that he wished to give evidence and was shocked when his counsel told the trial Judge that there was to be no defence case.

4. [42]

   The Applicant also stated that he told his legal representatives that he wished them to challenge TS upon the question whether there could be a hug in circumstances where she was holding two bottles (see Ground 1(b) at [6] above).

5. [43]

   In oral evidence, the Applicant acknowledged the advice of his legal representatives not to give evidence, but maintained that he instructed them that he wished to give evidence, but that his instructions were ignored.

6. [44]

   Mr Gleeson stated in his affidavit that the decision not to give evidence at the trial was made by the Applicant after the receipt of legal advice. In his affidavit, Mr Gleeson had expressed the erroneous understanding that the Applicant had provided signed instructions that he did not wish to give evidence. There were no written instructions to this effect. However, Mr Gleeson was otherwise clear in his recollection of events.

7. [45]

   At the close of the Crown case on 7 December 2016, the trial Judge had adjourned for a period to allow Mr Gleeson to confer with the Applicant as to whether he wished to give evidence. Although Mr Gleeson asked for an adjournment until the next morning, the trial Judge allowed a shorter adjournment to ascertain the position.

8. [46]

   In cross-examination by counsel for the Applicant, Mr Gleeson was asked about the legal advice provided to the Applicant during the short adjournment late on 7 December 2016 (T33-34, 29 September 2021):

9. [47]

   Mr Gleeson was asked in cross-examination concerning the relevance of his assessment of the evidence of the complainant to the advice given as to whether the Applicant should give evidence in the trial (T34-35):

10. [48]

    Mr Gleeson rejected a suggestion made in cross-examination that the account he used in cross-examining the complainant at the trial was based upon the instructions of the Applicant as to what happened the previous day (15 December 2014) rather than the date of the alleged offence (16 December 2014) (T38).

11. [49]

    Mr Gleeson rejected a number of propositions put to him in cross-examination concerning the conversation with the Applicant as to whether he was to give evidence at the trial (T38-39):

12. [50]

    In her affidavit of 3 March 2021, Ms Heathcote stated that a conversation took place with Mr Gleeson and the Applicant at the close of the Crown case which culminated in the Applicant indicating that he did not want to give evidence at the trial (paragraphs 27-28). She stated that the trial was adjourned until the next day for closing addresses and a conference was held with the Applicant and Mr Gleeson before Court the next morning before the closing addresses. Ms Heathcote stated that Mr Gleeson explained the points he was going to raise in the closing address and that at no stage did the Applicant indicate that he had changed his mind and that he wanted to give evidence (paragraph 31).

13. [51]

    With respect to possible cross-examination concerning bottles (Ground 1(b)), Ms Heathcote stated that a decision had been made by Mr Gleeson and herself not to cross-examine TS about the bottles as the Applicant had provided instructions that the hug in fact had taken place. As the hug itself was not being put in issue, it was considered that any cross-examination concerning the bottles would not advance the Applicant’s case at trial (paragraphs 39-42).

14. [52]

    Attached to Ms Heathcote’s affidavit of 3 March 2021 were her file notes for a conference held in the empty courtroom between 3.15 pm and 3.45 pm on 7 December 2016 (Annexure J). The file note recorded advice given to the Applicant not to give evidence and culminated with an indication that the Applicant “indicated if happy with points going to be covered in closing he won’t give evidence”. In evidence, Ms Heathcote confirmed that she had created the file note using a laptop (T19).

15. [53]

    Ms Heathcote was asked in cross-examination concerning her own assessment of the Applicant as a witness in his trial (T21-22):

16. [54]

    The cross-examination of Ms Heathcote concluded in the following way (T29-30):

Submissions for the Applicant

1. [55]

   Mr Norrie, counsel for the Applicant, submitted that a miscarriage of justice had been demonstrated so that the appeal against conviction should be allowed.

2. [56]

   It was submitted that the Court should accept the evidence of the Applicant concerning his desire to give evidence at the trial. Criticisms were made of the evidence of Mr Gleeson and Ms Heathcote including the mistaken assertion by Mr Gleeson that the Applicant had given written instructions that he did not wish to give evidence at the trial.

3. [57]

   It was submitted that the circumstances of this case fell within Craig v The Queen so that the Court should conclude that a miscarriage of justice has occurred. Counsel for the Applicant acknowledged that Ground 1(c) and (d) are overlapping and both relate to the circumstances in which the Applicant did not give evidence at the trial.

4. [58]

   With respect to the matter complained of in Ground 1(b) concerning the failure to cross-examine TS with respect to the bottles, it was submitted that Mr Gleeson had misunderstood the instructions he had been given so that the cross-examination of TS at the trial related to the Applicant’s instructions with respect to the previous day (15 December 2014) and not the day of the alleged offence itself. It was submitted that there had been a failure to cross-examine the Applicant with respect to the bottles so that, in this respect as well, a miscarriage of justice had occurred at trial.

Submissions for the Crown

1. [59]

   The Crown submitted that the Court should accept the evidence of Mr Gleeson and Ms Heathcote to the effect that the Applicant, having received advice from his trial legal representatives, gave instructions that he did not wish to give evidence at the trial. It was submitted that the Applicant knew he could give evidence at the trial, but that he decided not to do so after receiving advice.

2. [60]

   The Crown submitted that the evidence of the Applicant on this issue should not be accepted. It was submitted that his evidence was unconvincing and, at times, unresponsive. If the Applicant had indeed indicated at the close of proceedings on 7 December 2016 that he wished to give evidence in the trial, it would have been open to make an application the next morning, prior to closing addresses, for the Applicant to be allowed to give evidence in the trial. No such application was made. The file notes of Ms Heathcote with respect to the conference on 7 December 2016 and the events the following morning were, it was submitted, supportive of the Applicant’s provision of instructions that he did not wish to give evidence.

3. [61]

   The Crown submitted that application of the principles in Craig v The Queen did not demonstrate that a miscarriage of justice had occurred in this case arising from the Applicant not giving evidence at his trial.

4. [62]

   With respect to the remaining issue raised by Ground 1(b), the Crown submitted that the evidence of Mr Gleeson and Ms Heathcote explained what occurred at trial, and why cross-examination had not occurred on this topic. Insofar as the Applicant contended that his legal representatives had mistaken their instructions and conducted the trial upon the basis of the events on the preceding day (15 December 2014), the Crown submitted that the Court should reject the evidence of the Applicant on this issue.

5. [63]

   It was submitted for the Crown that this was a trial where the issues were in short compass. The Applicant had not demonstrated that the cross-examination of the complainant had been based upon something other than the instructions from the Applicant. No miscarriage of justice was demonstrated as asserted in Ground 1(b).

6. [64]

   The Crown submitted that the Applicant had failed to make good any ground of appeal so that the appeal should be dismissed.

Decision

1. [65]

   The Applicant bears the onus of establishing facts to found a conclusion that a miscarriage of justice resulted from his trial: TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 at [63]; Craig v The Queen at [32].

2. [66]

   It is appropriate to observe that the Applicant was not an impressive witness. He had a tendency to give short speeches rather than direct answers to the questions asked. In making these comments, I have taken into account the language issue, but note that the Applicant at no stage sought the assistance of the interpreter when answering questions.

3. [67]

   It is fair to say that the Applicant’s performance in the witness box in the Court of Criminal Appeal sheds some light upon his likely performance if he had been called to give evidence at his trial. The advice he was given by his trial legal representatives should be considered in this context.

4. [68]

   The evidence of the Applicant also brings to mind the observation made in Craig v The Queen at [34] (see [24] above) concerning the impact of hindsight where an accused person seeks to challenge conviction by a ground of appeal claiming incompetent legal representation which is said to have given rise to a miscarriage of justice.

5. [69]

   In areas of dispute, I accept the evidence of Mr Gleeson and Ms Heathcote to that of the Applicant.

6. [70]

   With respect to Ground 1(c) and (d), the Applicant was well aware of his right to give evidence at the trial. His counsel and solicitor sought and were granted an adjournment at the conclusion of the Crown case to take instructions from him on the question whether he was to give evidence. The topic had been discussed on prior occasions, but it was prudent for his legal representatives to confer with the Applicant at that point in the trial to obtain instructions on that specific issue. That is what happened.

7. [71]

   Having had an opportunity to observe the Applicant give evidence in this Court, it is understandable that his lawyers considered that he would not have been an impressive witness at his trial. The evidence of Mr Gleeson and Ms Heathcote was that each had formed the view that he was emotional, with a tendency to give unresponsive answers raising what may well have been prejudicial content.

8. [72]

   Mr Gleeson was an experienced barrister in criminal matters who called in aid his own experience in providing advice to the Applicant in the context of the trial. I accept that the Applicant waxed and waned somewhat concerning the question whether he would give evidence. However, by the time the conference was completed on the afternoon of 7 December 2016, I accept that his final position was that he did not wish to give evidence at the trial.

9. [73]

   I am satisfied that on the morning of 8 December 2016, the Applicant was told of matters which Mr Gleeson proposed to submit in his closing address that day. The Applicant was content with the approach which counsel intended to take and this confirmed his decision not to give evidence at the trial. The fact that no application was made that morning for the Applicant to give evidence supports a conclusion that he was content for the trial to proceed and be concluded without him giving evidence.

10. [74]

    If the Applicant made clear to his legal representatives at the conclusion of proceedings on 7 December 2016, or on the following morning, that he wished to give evidence in the trial, I have no doubt that application would have been made to the trial Judge for leave to call the Applicant to give evidence. It was a Judge-alone trial and closing addresses had not yet commenced. If the Applicant had been adamant, against the advice of his legal representatives, that he wished to give evidence, then such an application would have been made. However, that did not happen.

11. [75]

    The decision as to whether the Applicant was to give evidence was made by him after receiving legal advice. What occurred in this case did not fall foul of the principles explained in Craig v The Queen. It has not been demonstrated that the Applicant was given incorrect legal advice. The advice given to the Applicant by Mr Gleeson and Ms Heathcote was understandable given their assessments of the Applicant as a potential witness in the trial.

12. [76]

    This is a case involving an accused person who vacillated about giving evidence in the face of the advice given to him by his legal representatives as to the risks if he gave evidence in the trial. That was not incorrect legal advice, but advice based upon the judgment of his experienced trial counsel in the context of the trial.

13. [77]

    In Craig v The Queen, it was said at [34] (see [24] above) that the conclusion that the trial of an accused person was not a fair trial requires the appellate court to be satisfied that it was the accused person’s wish to give evidence and that incorrect legal advice effectively deprived the accused person of the opportunity to do so. In my view, the circumstances of the present case fall far short of demonstrating such a miscarriage of justice.

14. [78]

    The Applicant made an informed decision based upon the advice which he received. The Applicant’s evidence in this Court is affected by a strong element of hindsight reasoning: Craig v The Queen at [34] (see [24] above). The Applicant has failed to demonstrate that a miscarriage of justice occurred in this case.

15. [79]

    It should be observed, for completeness, that it would have been highly desirable to have obtained signed instructions from the Applicant that he did not wish to give evidence so that there were contemporaneous written instructions to that effect. This is a sensible precaution for legal practitioners to take and can operate to guard against disputes of the type involved in this appeal. It may be that, in this case, no signed instructions were taken on the afternoon the Crown case closed given that, as recorded in Ms Heathcote’s file note, the Applicant indicated that he wanted to confirm the next morning that the points to be covered in closing would adequately present his case and that, by the next morning, in the context of the imminent presentation of the closing address and the Applicant’s apparent satisfaction with it, the question of signed instructions was overlooked. Despite the absence of such signed instructions, it should be observed that the resolution of the issues on the appeal was greatly assisted by Ms Heathcote’s detailed, contemporaneous, file notes.

16. [80]

    However, this appeal is not to be determined by reference to best practice or what may have been the desirable professional approach for his legal representatives to take. It is for the Applicant to demonstrate that a miscarriage of justice has occurred and he has failed to do so.

17. [81]

    I reject Ground 1(c) and (d).

18. [82]

    With respect to Ground 1(b), the Applicant’s legal representatives considered the question of whether cross-examination of TS concerning the bottles should take place and the view was formed that questions along those lines would not advance the Applicant’s case. That was a rational forensic decision. I am not satisfied that there was any confusion on the part of Mr Gleeson and Ms Heathcote concerning the events on 15 December 2016 and 16 December 2016. It has not been demonstrated that the trial of the Applicant proceeded in accordance with anything other than the instructions which he gave to his legal representatives for the purpose of the trial.

19. [83]

    The matter complained of in Ground 1(b) has no substance.

20. [84]

    The Applicant has not made good any of the matters complained of in his ground of appeal.

Conclusion and Orders

1. [85]

   The Applicant has failed to demonstrate that a miscarriage of justice occurred in his trial.

2. [86]

   As there is no merit in the Applicant’s ground of appeal, no useful purpose would be served in granting an extension of time in this case. It follows that the interests of justice do not require an extension of time for the Applicant to seek leave to appeal against conviction under s.5(1) and s.10(1) Criminal Appeal Act 1912.

3. [87]

   I propose that the application for an extension of time within which to seek leave to appeal against conviction should be refused.

4. [88]

   FULLERTON J: I agree with Johnson J.

5. [89]

   DHANJI J: I agree with Johnson J.