EWCA Crim 45 (14th January, 1997)

No: 9601451/Y4


Royal Courts of Justice
The Strand
London WC2

Tuesday 14th January 1997

B E F O R E :





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Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
180 Fleet Street, London EC4A 2HD
Tel No: 0171 831 3183 Fax No: 0171 831 8838
(Official Shorthand Writers to the Court)
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MR P CUSACK appeared on behalf of the Appellant
MR A KHAN appeared on behalf of the Crown

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( As Approved by the Court )

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Crown Copyright

Tuesday 14th January 1997

SIR PATRICK RUSSELL: Not for the first time in this Court, we are concerned with an appeal against conviction, where the principal ground of appeal amounts to an attack upon the professional competence of trial counsel. It must be examined with care.

On 5th January 1996, in the Crown Court at Isleworth, before His Honour Judge Miller and a jury, this appellant was convicted of a single charge of dangerous driving. After an adjournment he was sentenced to 150 hours of community service and disqualified from holding or obtaining a driving licence for a period of
2 years.
He appeals against that conviction with the leave of the Full Court, which gave some directions as to the future conduct of the appeal and, in particular, requested material from trial counsel so that this Court could properly assess the worth of the complaints that are made.
The circumstances of the case can be very shortly described with this observation, that the case, on any view, was undoubtedly a very strong one and the verdict of the jury not the least surprising.
During the hours of daylight on 20th May 1995 police officers were stationed in a patrol vehicle at a roundabout on the A40. They heard the approach of a motorcycle along Western Avenue. It was travelling at a very high speed, and the officers endeavoured to follow it. During the next 2 minutes or so, the motorcycle, allegedly driven by the appellant, achieved speeds in this built-up area in excess of 100 miles per hour. It went through a red traffic light, travelled on the wrong side of traffic bollards and narrowly avoided a collision with a young lady and her child on a pedestrian crossing.
Eventually the motorcyclist left the A40. The officers followed. It should be said at once that for a very short period of time, measured in seconds, officers did lose sight of the motorcyclist. But as their description of events disclosed, not before they had observed that the motorcyclist was wearing a crash helmet with a gold star at the back of it, and not before they had observed that the numberplate of the motorcycle began with the letter K, though they did mistakenly think that the numbers that followed were 9 3 as opposed to 8 9.
Be that as it may, it was the defendant who was stationed alongside his motorcycle, close to his home, when the officers arrived at the scene. He was asked to account for his movements and said he had been at his mate's. In fact, according to his most recent instructions, he had not been at his mate's but had been to his hairdresser. Thereafter at the scene the appellant declined any further information.
At trial, where the appellant was represented by counsel of considerable experience in this field, the judge, at the conclusion of the prosecution case, said this to counsel then appearing for the accused:
“...have you advised your client that the stage has now been reached at which he may give evidence?


[THE JUDGE]: And if he chooses not to do so the jury may draw such inferences as appear proper from his failure to do so.

[COUNSEL]: Your Honour, I have.

[THE JUDGE]: Thank you very much.”
Surprisingly, before this Court, Mr. Patrick Cusack, who today appears for this appellant, contends that that dialogue, whilst it took place between the judge and counsel, did not contain, from counsel's point of view, the truth. He boldly asserts, on the authority only of his client, that no such interview had taken place between counsel and the client, and the client had not been properly or adequately warned of the consequences of not going into the witness-box. That submission is made in the face of a note directed to the Registrar by counsel which confirms in terms that counsel gave the clearest possible advice to the appellant of the conceivable consequences of his failure to go into the witness-box. That note, which counsel drafted at the request of the Court, was sent to
Mr. Cusack and he in terms subsequently acknowledged its accuracy.
For our part, we can see no reason whatever why we should conclude or even suspect that at the appropriate time this appellant did not receive the appropriate and clear directions as to the consequences of his absence from the witness-box for which his trial counsel speaks.
In his observations, declining leave to appeal, the Single Judge said this:
“The prosecution case was a very strong one. You accepted advice from your counsel not to give evidence and to put in evidence your one previous conviction. Having accepted that advice there can be no ground of appeal on that basis. There is no reasonably arguable ground of appeal.”
Those observations relate to another matter upon which we have not as yet touched. The appellant did in fact have a previous conviction for burglary, a number of years previously. It is right to say that counsel did not have to bring before the jury that previous conviction. Mr. Cusack contends not only was it unnecessary so to do but it was flagrantly incompetent of counsel so to do. We profoundly disagree with that submission, though we cannot be certain as to the thinking of trial counsel. It is abundantly plain to us that there could be very good reasons why he might wish to bring out the burglary conviction, if, for example, he wished to place before the jury the character of his client which, in so far as road traffic offences are concerned, was blameless. Furthermore, in the summing-up it is to be observed, at page 10 of the transcript, that the judge said:
“So far as the burglary is concerned my suggestion to you is you ignore it because it was many, many years ago; there was a fairly modest fine and it really plays no part in the case that you have to consider. So that is the position so far as he is concerned.”

Mr. Cusack confronts that observation of the trial judge by asserting to the Court that the reaction of the jury when hearing the conviction was adverse to his client's interests.
We profoundly disagree. At the heart of this case is the complaint that for no good reason trial counsel did not call his client. We can think of a number of reasons why in this, as in other cases, counsel, in the exercise of his discretion, vested in him by our adversarial system, decides to advise not to call a particular defendant. It may be, for example, that in a conference the client creates such a bad impression, that counsel takes the view that it is in the interests of the client not to go into the witness-box. There was in addition, in the instant case, the problem of the appellant's responses to the police when seen at the scene.
We find the observations of Beldam L.J., in a case to which we have been referred, helpful and instructive. The case is R v. Satpal Ram (unreported, 95/1112/Y2, 24th November 1995). It was a murder case, where counsel had advised that the only viable defence was provocation, and declined to run a defence of self-defence. Counsel took the decision not to call his client. Beldam L.J., in the course of his judgment, said this:
“Counsel does not act in dereliction of duty who honestly advises on the basis of his experience and judgment that by giving evidence the defendant would give the Crown the opportunity of exposing fragility and emphasising inconsistency of his account of events. The more so when the defendant can provide no reasonable explanation for incontrovertible facts probative of guilt; in a word when any advantage to his case in his giving evidence is far outweighed by the risk that the case against him will be strengthened.”

There followed these important words:
“There seems to be an increasing tendency to believe that it is only necessary to assert the fault of trial counsel to sustain an argument that the conviction is unsafe or unsatisfactory. Whether this is due to a mistaken interpretation of the observations on this subject by the Royal Commission on Criminal Justice we do not know; but we do see far reaching implications in the Commission's suggestion (Ch. 9, Para. 59) that even a reasonable decision of counsel could be the cause of a miscarriage of justice. Like the Commission, the court could not countenance a case in which the defendant is serving a prison sentence for no other reason than a mistake on counsel's part, but equally where counsel's judgment has been reasonable there is a strong public interest that the legal process should not be indefinitely prolonged on the ground, for example, that a defendant's case advanced within a different legal framework might have stood a greater chance of success. The advantages claimed for the adversarial system of justice of necessity depend greatly on the skill and judgment of trial counsel.”
We take the view that the complaints made in this case against trial counsel should never have been made, now we have investigated them to the extent that we have. We can see nothing remotely approaching incompetence on the part of counsel, in the course of, no doubt, taking advantage of his experience in this particular case. This appeal, in our judgment, is without merit. The conviction, to use the words of the Criminal Appeal Act 1995, as amended by earlier legislation, was entirely “safe”. Accordingly the appeal is dismissed.

© 1997 Crown Copyright

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