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Court of Criminal Appeal 5 December 2003

Gore v Regina (Cth)

[2003] NSWCCA 365

Fraud & dishonesty
FAILURE OF APPELLANT TO APPEAR POWER OF COURT TO DISMISS APPEAL.

Citation: Gore v Regina (Cth) [2003] NSWCCA 365
Court: NSW Court of Criminal Appeal
Date: 5 December 2003
Judge(s): Ipp JA; Hulme J; Buddin J

Background

The appellant was convicted by a jury in the District Court of uttering forged documents, specifically fraudulent purchase order forms, in contravention of the Crimes Act 1914 (Cth). He was sentenced to two years imprisonment, with release on recognizance after serving approximately twelve months.

The appellant lodged an appeal on the ground that his trial counsel failed to call available witnesses, including the appellant himself, resulting in an unfair trial. At trial, however, the appellant had signed a document expressly instructing his legal representatives not to call him or his former wife to give evidence, for reasons that were both forensic and personal.

When the appeal first came on for hearing in July 2003, the appellant dispensed with his counsel and sought an adjournment to gather fresh evidence. The court granted more time than he had requested, issued clear directions, and warned him to be ready to proceed. The appellant complied with none of those directions and failed to appear on either of the scheduled hearing dates in December 2003.

  • Whether counsel's decision not to call the appellant and other witnesses at trial constituted a material irregularity that rendered the trial unfair or caused a miscarriage of justice.
  • Whether the Court of Criminal Appeal had power to dismiss an appeal where the appellant repeatedly failed to prosecute it diligently and failed to appear at the hearing.

Decision

On the substantive ground of appeal, Ipp JA was satisfied that the appellant's decision not to testify and not to call his former wife was deliberate and informed, not something imposed on him by counsel. The court applied the settled principle that where trial counsel makes a rational, tactical decision to withhold certain evidence in order to avoid forensic risks, that decision will not render the trial unfair or produce a miscarriage of justice. The court also found that the evidence of the proposed witnesses would not have materially assisted the appellant's case in any event.

Hulme J added that the appellant had originally pleaded guilty before successfully applying to withdraw that plea. The evidence the appellant gave during that application provided strong grounds for any competent counsel to be wary of calling him to the stand again, consistent with a rational tactical judgment not to do so.

On the procedural question, the court held that it had power to dismiss the appeal for want of prosecution. Ipp JA grounded that power in the court's inherent jurisdiction where an appellant fails to appear despite having been given every reasonable opportunity to present his case. Buddin J identified a further statutory basis in s 22(1) of the Criminal Appeal Act 1912, which expressly includes a power to dispose of an appeal for failure to prosecute it diligently.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • Where an appellant at trial signs a document instructing counsel not to call him or other witnesses, for documented forensic and personal reasons, that decision is treated as deliberate and informed rather than as an error by counsel.
  • A tactical decision by trial counsel not to call evidence, made rationally to avoid forensic risk, will not amount to a material irregularity causing an unfair trial or a miscarriage of justice.
  • The Court of Criminal Appeal confirmed it holds power, within its inherent jurisdiction, to dismiss an appeal where the appellant fails to appear at the hearing after being given every reasonable opportunity to prepare and present the case.
  • Under s 22(1) of the Criminal Appeal Act 1912, the Court also has explicit statutory power to dispose of an appeal for failure to prosecute it diligently, providing an independent basis for dismissal in such circumstances.
  • In dismissing the appeal, the Court noted that the appellant's own prior conduct during proceedings, including evidence given on his application to withdraw a guilty plea, was relevant context to the assessment of the trial counsel's decision not to call him as a witness.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 22(1)
- Crimes Act 1914 (Cth), s 67(b)

Cases cited: No specific cases were cited in the provided judgment text.