Citation: Tongahai v R [2014] NSWCCA 81
Court: Court of Criminal Appeal, NSW
Date: 15 May 2014
Judges: Basten JA (principal judgment); Fullerton J and Davies J agreeing
Background
The appellant was convicted of murder by a jury in December 2009, following a trial of more than 20 days in the NSW Supreme Court. The charge arose from a fatal shooting at a Kingsford sports bar in the early hours of 26 April 2008. There was no dispute that the appellant fired the shots. The real contest at trial concerned his mental state and whether he acted in self-defence, defence of others, or under provocation.
On the fourth day of the trial, the judge directed that the jury undertake a view of the bar premises, in part to understand the location of CCTV cameras whose footage was central to the evidence. The appellant did not attend the view. He was represented throughout by his solicitor and senior counsel.
The appeal, filed more than four years after conviction, was grounded on a single claim: that the trial judge, in exchanges with counsel in court, used language that misled the appellant into believing he had no right to attend the view, and that this caused a miscarriage of justice. Senior counsel on appeal sought to rely on affidavit evidence from both the appellant and his trial counsel to establish what had been said and understood.
Legal Issues
- Whether an extension of time should be granted to file the appeal, given the significant delays and procedural complications with the notice of intention to appeal.
- Whether an accused person has a right to attend a jury view of premises.
- Whether the trial judge's language in court misled the appellant into consenting to the view proceeding in his absence.
- Whether the appellant's subjective belief about his right to attend, and the advice given to him by trial counsel, were admissible on the appeal.
- Whether the conduct of counsel in obtaining the appellant's consent to the view bound the appellant, in the absence of any allegation of incompetence by counsel.
- Whether a miscarriage of justice had occurred.
Decision
Extension of time: The Court granted an extension of time to 18 October 2013 (the date the notice of appeal was filed). Despite lengthy delays, there was no evidence the appellant had affirmatively abandoned his intention to appeal. The Court also noted that the procedural history raised questions about the Registrar's power to reverse an earlier refusal to extend time, but neither party disputed the Court of Criminal Appeal's own power to confirm the extension if necessary.
Right to attend a view: The Court confirmed that an accused does have a right to attend a jury view of premises. The view in this case could lawfully proceed in the appellant's absence, given he was represented by counsel, but that absence needed to rest on a genuine and informed consent.
Admissibility of affidavit evidence: The Court held that the affidavit evidence from both the appellant and his trial counsel was inadmissible and should be rejected. Where an accused is represented by competent counsel and no allegation of incompetence is made, the accused is bound by counsel's conduct. The relevant question was therefore what appeared from the court transcript, not what the appellant subjectively believed or what was said in private conference.
Miscarriage of justice: Reading the transcript as a whole, the Court found it unlikely the appellant formed a genuine belief that he had no right to attend the view. Even if such a belief was formed, he had the opportunity to discuss it with competent counsel. Senior counsel's communication to the trial judge, that the view could proceed in the appellant's absence for practical reasons, was consistent with rational expectations in a criminal trial. No basis for a miscarriage of justice was established, and leave to appeal was refused.
Orders Made
- Extension of time granted to 18 October 2013 for the filing of the notice of appeal.
- Affidavit evidence from both the appellant and trial counsel, concerning the circumstances in which the view was directed in the appellant's absence, rejected as inadmissible.
- Leave to appeal against the conviction for murder refused.
Key Takeaways
- An accused person has a right to attend a jury view of premises, but that right can be waived by informed consent given through competent legal representation.
- Where no allegation of incompetence is made against trial counsel, an accused is bound by counsel's conduct at trial, including consent given on the accused's behalf to a procedural step such as a view.
- The Court of Criminal Appeal confirmed that, in the absence of a challenge to counsel's competence, the admissible record is the court transcript, not affidavit evidence about what was privately communicated between lawyer and client.
- Refusing leave to appeal, the Court found that language used by the trial judge in an exchange with counsel did not, on a fair reading of the full transcript, constitute a misleading representation to an unrepresented accused.
- Significant procedural delay in filing an appeal does not necessarily bar an extension of time, provided the applicant has not affirmatively abandoned the intention to appeal.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), ss 5, 10
- Criminal Appeal Rules, rr 3A, 3B
- Evidence Act 1995 (NSW), ss 53, 54
Cases:
- Dietrich v The Queen [1992] HCA 57; 177 CLR 292
- Karamat v The Queen [1956] AC 256
- Lawrence v The King [1933] AC 699
- London General Omnibus Co Ltd v Lavell (1901) 1 Ch 135
- Matthews v R [2013] NSWCCA 187
- Nudd v The Queen [2006] HCA 9; 80 ALJR 614
- R v Abrahams [1956] VLR 575
- R v Birks (1990) 19 NSWLR 677
- R v Crossman [2011] QCA 126; [2011] 2 Qd R 435
- R v Hallocoglu (1991) 29 NSWLR 67
- R v Martin (1872) LR 1 CCR 378
- Scott v Numurkah Corporation (1954) 91 CLR 300
- Unsted v Unsted (1947) 47 SR(NSW) 495