Chenhall v Mosel  NTCA 10
PARTIES: CHENHALL, Craig Anthony
MOSEL, Jeffrey David
TITLE OF COURT: COURT OF APPEAL OF THE NORTHERN TERRITORY
JURISDICTION: CIVIL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION
FILE NO: AP 3 of 2013 (21135192)
DELIVERED: 18 SEPTEMBER 2013
HEARING DATES: 10 SEPTEMBER 2013
JUDGMENT OF: RILEY CJ, KELLY & HILEY JJ
APPEAL FROM: SOUTHWOOD J in proceedings
JA 35 of 2012
CRIMINAL LAW — APPEAL — Whether miscarriage of justice due to failure to cross-examine witness — Whether miscarriage of justice due to failure to call evidence of prior statement to rebut allegation of recent invention — Whether conduct of counsel at trial was a rational tactical decision — Held that no miscarriage of justice caused by deliberate forensic choices of counsel — Appeal dismissed
TKWJ v The Queen (2002) 212 CLR 124, Nudd v The Queen (2006) 162 A Crim R 301, applied
Appellant: J Tippett QC
Respondent: M Thomas
Appellant: Louise Bennett
Respondent: Office of the Director of Public Prosecutions
Judgment category classification: B
Judgment ID Number: Ril1314
Number of pages: 18
IN THE COURT OF APPEAL
OF THE NORTHERN TERRITORY
Chenhall v Mosel  NTCA 10
CRAIG ANTHONY CHENHALL
JEFFREY DAVID MOSEL
CORAM: RILEY CJ, KELLY & HILEY JJ
REASONS FOR JUDGMENT
(Delivered 18 September 2013)
 On 20 April 2012 the appellant was found guilty in the Court of Summary Jurisdiction of possessing child abuse material. He was convicted and sentenced to imprisonment for two months suspended after he had served seven days.
 The appellant appealed against his conviction and his sentence and, on 17 April 2013, the appeal against conviction was dismissed and the appeal against sentence allowed.
 The appellant now appeals to this court complaining that a substantial miscarriage of justice resulted from the failure of counsel at the trial to cross-examine a witness and to adduce evidence in rebuttal of recent invention; and the failure of the same counsel who appeared on the hearing of the appeal to raise that failure on the appeal.
The case in the Court of Summary Jurisdiction
 At the time of the alleged offending the appellant was working as an officer of the Australian Federal Police in Darwin. He worked a shift which spanned 8 and 9 October 2011. At the beginning of the shift the appellant had with him a USB drive which he left on the desk at which he had been working. The USB drive was found by another officer and noted to be a non-issue USB drive. The officer made unsuccessful enquiries as to who owned the USB drive and then inserted it into his work terminal and discovered that it contained child abuse material. The officer reported this to his supervisors.
 On 11 October 2011, at the start of his next shift, the appellant was told of the discovery of the USB drive containing the child abuse material. His locker was searched and nothing was found. He was escorted from the premises by Superintendent Mark Setter.
 In the evening of 11 October 2011 the appellant called Superintendent Setter but the Superintendent missed the call. The Superintendent later returned the call and there was a discussion the contents of which were in dispute at the trial.
 At the trial the appellant admitted that he had taken the USB drive to the AFP offices at Darwin Airport and had left it on the desk. He admitted that 11 images contained on the USB drive were of child abuse material. During the trial it was also admitted that the USB drive contained a photograph taken by the appellant of himself. It was acknowledged that there was material on the USB drive (including the photograph) that had been downloaded by the appellant and, further, that the appellant had knowledge of at least some of the contents of the USB drive.
 A significant issue at trial was whether the prosecution could establish beyond reasonable doubt that the appellant was aware that the USB drive contained child abuse material. The defence case emphasised the possibility that someone else had downloaded the child abuse material onto the USB drive without the knowledge of the appellant.
 In order to prove the appellant was aware that the USB drive contained child abuse material, the prosecution relied upon lies which the prosecution claimed the appellant told to his superior officer, Superintendent Setter, in the course of the telephone conversation on 11 October. The evidence of the Superintendent was as follows:
During the course of the conversation he told me that he remembered the USB. He also told me that many years ago that he had been observing porn sites and one site had led to another and he ended up on what he believed to be a Japanese porn site where there were pictures of children. He told me that he downloaded a number of images from that site and wrote down the address of the site. His intent was to report that to the Northern Territory Police Computer Crimes section.
 The Superintendent said that the appellant identified Detective Senior Constable Elio Valenti as the officer to whom he intended to report the matter. He also said the appellant had told him that he “brought [the USB drive] into the AFP office to pick up some personal documents”.
 The evidence of the Superintendent in this regard was not challenged in cross-examination. Further, it was not put to the Superintendent in cross-examination that the appellant had advised him in that telephone conversation:
(a) that “lots of people had access to this USB and that any one of those people could have downloaded the material”;
(b) that the child abuse material he referred to was discovered when he was doing South East Asian studies; or
(c) that he had downloaded that material onto a floppy disk, not a USB drive.
 The appellant gave evidence in which he said that he did inform the Superintendent of those matters. He acknowledged that none of those propositions was put to the Superintendent in cross-examination.
 In his evidence the appellant said he was not aware that there were images of child abuse material on the USB drive, and that he had not put them on the USB drive. He referred to a number of people within his family or staying at his house who may have had access to the USB drive and downloaded the material to the USB drive.
 In relation to the telephone conversation with Superintendent Setter he said:
What I told him is that many years ago I was searching the internet. I didn't say searching pornographic websites, what I said is, “I was looking up something that was in South East Asia,” – the reason I was looking up something in South East Asia was because at that stage I was doing a university degree in South East Asian studies and I was doing some research for a paper and a result of one of those searches and I can’t remember what the exact search was but as a result a heap of pages started popping up and they were pop up pages and they were porn sites, so I just started clicking on some of them and yeah, click, click, click, and the next thing I know it’s up on some porn sites and some of those porn sites were kids and I said to Mark, it’s a Japanese – one of the porn sites was a Japanese porn site and images on it of children that didn’t look right so I copied some images onto a floppy disk and I said, “That’s how long ago it was because we didn’t have USBs,” and my intention was to take them and show them to – and I wrote the web address down and my intention was to take them and show Elio Valenti who was working in Computer Crimes at the time...
 When asked why he told the Superintendent those things he said:
Just to say that's the only time I've ever had anything to [do] with downloading anything like that and – I certainly never mean– I certainly never downloaded any images like that on the USB because it was the USB we were talking about.
 The appellant said that the incident had occurred some 10 years before and that when he tried to report the matter he left a message on the telephone of Elio Valenti who was “not available for some reason”. Thereafter the appellant said he
... just forgot about it and sometime later I was cleaning out the backpack and I found the floppy disk and I tried to go back and like to see if the websites were still there but when I got on there they seem to have been closed down so that – and I just thought, well you know, there’s no real point – no real point in continuing if they’ve been closed down so I destroyed the disks.
 The effect of the evidence of the appellant was that the conversation with Superintendent Setter regarding the downloading of pornographic material sometime before had been to alert the Superintendent to the only time he had downloaded such material and the circumstances of so doing. It was not, as the Superintendent told the court, to provide to the Superintendent an explanation of how the material had come to be on the USB drive.
 The prosecution case was that the version of the telephone conversation provided by Superintendent Setter was accurate and reliable and that the accused had lied to the Superintendent to provide an explanation as to how the images came to be on the USB drive. The appellant had changed his story when he was alerted to historical inaccuracies in what he had said. In the course of the proceedings it was admitted by the appellant that in fact Elio Valenti’s last day of active duty in the Northern Territory Police Force had been 23 June 2002 and that the USB drive had not come into operation until the third or fourth week of March 2008. The prosecution submitted that those admitted facts were quite inconsistent with the claim by the appellant to the Superintendent that he had downloaded the images to the USB drive in order to provide the information to Elio Valenti, and relied on the lie both as showing that the appellant had knowledge that the material was on the USB drive and as demonstrating consciousness of guilt in relation to possession of that material.
 At the time of delivering reasons for decision the trial magistrate gave himself a direction in accordance with Edwards v The Queen. There is no suggestion that his Honour erred in any way in this regard. The magistrate went on to conclude that the appellant had lied to Superintendent Setter and that the lie disclosed a consciousness of guilt.
 There was ample material upon which the magistrate could reach this conclusion. In so doing his Honour had regard to the following factors:
(a) the evidence of Superintendent Setter was not shaken in cross-examination as to the content of the conversation;
(b) the appellant’s account “beggars belief”;
(c) the discrepancies between the questions put to the Superintendent during cross-examination and the appellant’s evidence in the witness box;
(d) the fact that at the time of the conversation with the Superintendent the appellant was not aware that the USB drive was not operational until 2008;
(e) the improbability of the suggestion of the appellant in his evidence that:
he would go to all the trouble of downloading child abuse material or recording websites and it is with the intention of passing that information onto Valenti, but doesn't get around to doing it and subsequently discovers the websites have been closed down he decided to take the matter no further and then, in fact, destroys the floppy disk he says was the medium for the downloading of the material in the first instance.
(f) the fact that the appellant agreed that he said to the Superintendent, “I remember the USB”, and then, “almost as a non sequitur” suggested he made “gratuitous admissions about some prior involvement with child abuse material” to somehow make the Superintendent aware that he had nothing to do with the material on this occasion.
 The trial magistrate went on to conclude:
But the point I am making is that the version just doesn’t seem to stick together. In my view, the [appellant’s] evidence in the witness box had the characteristics of a person who discovered the previous account could not stack up because the USB in question was not operational till 2008 and Valenti had ceased employment in 2002 and he was stuck with an explanation that just could not be sustained.
 The appellant appealed to the Supreme Court on a number of grounds. At the hearing of the appeal the appellant sought to adduce further evidence, namely the transcript of a directed interview between the appellant and police investigators in which he told the investigators that the child abuse images he had downloaded years before had been downloaded onto a floppy disk. The evidence was said to be relevant to Ground 6 of the appeal in which the appellant contended:
The hearing miscarried in that the prosecutor submitted to the learned Magistrate that the evidence of the appellant in relation to his use of a floppy disk was a recent invention, when the prosecution had in its possession, or access to, evidence that the appellant had stated more than 6 months prior to the hearing that he used a floppy disk.
 That application was rejected because there was no reasonable explanation for the failure of the appellant or his counsel to adduce the evidence in the Court of Summary Jurisdiction. Southwood J found that the failure to call the evidence at trial had been a deliberate forensic decision by experienced counsel.
 The appeal to the Supreme Court was unsuccessful. Southwood J agreed with the reasoning and conclusions of the magistrate. His Honour observed:
In any event, the appellant’s evidence was capable of being rejected on the basis that he changed his story after he spoke to Superintendent Setter. He has given no explanation for why he changed his story after he spoke to Superintendent Setter. Further, the story that the appellant has maintained since he spoke to Superintendent Setter does not make sense. The early incident of downloading child pornography, which is now recounted by the appellant, was utterly irrelevant to the current circumstances; particularly, as all evidence of what is said to have occurred on the earlier occasion had apparently been destroyed. There is absolutely no reason why anybody would raise such an incident when the subject of the investigation was the contents of a USB drive which first came into use in 2008. The story now relied on by the appellant lacks the ring of truth and reality.
 The appellant has now appealed to this Court on the following grounds:
1. That a substantial miscarriage of justice resulted from the failure of the appellant’s counsel to adduce evidence in rebuttal of recent invention at the summary hearing; and
2. The failure by counsel at the appeal to raise Ground 1 resulted in a substantial miscarriage of justice.
At the hearing of the appeal, the appellant was given leave to add a further ground of appeal:
3. That a substantial miscarriage of justice resulted from the failure of the appellant’s counsel to cross-examine Superintendant Setter in relation to the telephone conversation of 11 October 2011.
 By and large, appeal courts will not scrutinise decisions made by trial counsel. As Gleeson CJ said in TKWJ v The Queen, speaking of an appeal based on a decision by counsel for the accused in that case not to call character evidence at the trial:
Decisions by trial counsel as to what evidence to call, or not to call, might later be regretted, but the wisdom of such decisions can rarely be the proper concern of appeal courts. It is only in exceptional cases that the adversarial system of justice will either require or permit counsel to explain decisions of that kind. A full explanation will normally involve revelation of matters that are confidential. A partial explanation will often be misleading. The appellate court will rarely be in as good a position as counsel to assess the relevant considerations. And, most importantly, the adversarial system proceeds upon the assumption that parties are bound by the conduct of their legal representatives.
It is undesirable to attempt to be categorical about what might make unfair an otherwise regularly conducted trial. But, in the context of the adversarial system of justice, unfairness does not exist simply because an apparently rational decision by trial counsel, as to what evidence to call or not to call, is regarded by an appellate court as having worked to the possible, or even probable, disadvantage of the accused. For a trial to be fair, it is not necessary that every tactical decision of counsel be carefully considered, or wise. And it is not the role of a Court of Criminal Appeal to investigate such decisions in order to decide whether they were made after the fullest possible examination of all material considerations. Many decisions as to the conduct of a trial are made almost instinctively, and on the basis of experience and impression rather than analysis of every possible alternative. That does not make them wrong or imprudent, or expose them to judicial scrutiny. Even if they are later regretted, that does not make the client a victim of unfairness. It is the responsibility of counsel to make tactical decisions, and assess risks.
 The focus is not so much on the conduct of counsel, but on whether there has been a miscarriage of justice. The question whether there has been a miscarriage of justice is usually answered by asking whether the act or omission in question “deprived the accused of a chance of acquittal that was fairly open”.
 The approach to be adopted in such cases was explained by Gaudron J in TKWJ v The Queen in the following terms:
Where it is claimed that a miscarriage of justice was the result of a course taken at the trial, it is for the appellant to establish that the course was not the result of an informed and deliberate decision. This he or she will fail to do if the course taken is explicable on the basis that it could have resulted in a forensic advantage unless, in the circumstances, the advantage is slight in comparison with the disadvantage resulting from the course in question. It should be added, moreover, that where the course in question is the failure to call evidence, an appellant will not establish a miscarriage of justice unless, as with fresh evidence, the evidence is such that “when viewed in combination with the evidence given at trial ... the jury would have been likely to entertain a reasonable doubt about the guilt of the accused”.
 Counsel for the respondent relied on those general principles and submitted:
(a) that the course taken by counsel for the appellant at the trial was explicable, indeed, it was a deliberate forensic decision, and
(b) in any case, the failure to cross-examine Superintendent Setter on the telephone conversation and to adduce evidence of the transcript of the directed interview in re-examination did not deprive the accused of a chance of acquittal that was fairly open: the Crown case against the appellant was overwhelming and the decision of the magistrate was based on a whole range of other, compelling considerations (set out above).
 Counsel for the appellant relied on remarks by Kirby J in Nudd v The Queen to this effect:
Sometimes, rarely, the misbehaviour, errors or incompetence in the legal representation of an accused at trial may be so egregious, frequent or obvious as, without more, to amount to a miscarriage of justice. The “proviso” postulated upholding the verdict at the conclusion of a trial that has met the minimum standards for a fair trial. It does not envisage the affront to the appearance of justice of upholding orders that have followed a proceeding that did not amount, in law, to a proper trial at all.
 In TKWJ McHugh J expressed the same concept in the following way:
In some cases, the conduct of counsel may be such that it has deprived the accused of a fair trial according to law. If the conduct of counsel has resulted in an unfair trial, that of itself constitutes a miscarriage of justice. If, for no valid reason, counsel fails to cross-examine material witnesses or does not address the jury, for example, the accused has not had the trial to which he was entitled. In such a case, the failure of counsel to conduct the defence properly is inconsistent with the notion of a fair trial according to law. It cannot be right to insist that the appeal can succeed only if the court thinks that counsel’s conduct might have affected the verdict. To require the accused to persuade the court that the conduct might have affected the verdict comes close to substituting trial by appellate court for trial by jury. No matter how strong the prosecution case appears to be, an accused person is entitled to the trial that the law requires. In principle, therefore, where the trial has been unfair, the accused should not have to show that counsel’s conduct might have affected the result.
 Counsel for the appellant submitted that this was such a case. He pointed out that the prosecution had opened its case on the basis that in the telephone conversation of 11 October 2011 the appellant had lied about how the child abuse images came to be on the USB drive and that those lies demonstrated both knowledge of the material on the USB drive and a consciousness of guilt on his part in relation to the possession of those images. In those circumstances, counsel for the appellant contended that it was absolutely essential to a fair trial that trial counsel put to Superintendent Setter in cross-examination the appellant’s version of that telephone conversation. The failure to do so formed the basis for the submission by the prosecution (which was ultimately accepted by the magistrate) that the court should infer that the accused had invented his version of the telephone conversation in the witness box to explain away the fact that the USB drive was not in use until 2008 – a fact of which he was unaware at the time of the telephone conversation. Further, once it was put to the appellant in cross-examination that he had made up his version of the conversation in the witness box, it was absolutely essential for defence counsel to rescue the appellant’s credit by tendering the transcript of the directed interview in which he had earlier given a version of the telephone conversation which (counsel submitted) was broadly similar to the version he gave in the witness box. By failing to do either of those things, it was contended that trial counsel had effectively failed to put the defence case and that, as a result, the appellant was deprived of a fair trial in the sense referred to in the remarks of Kirby J and McHugh J referred to above. In those circumstances, he submitted, the strength of the Crown case was irrelevant, and the appeal should be allowed.
 We do not agree. Even if he later regretted the decision, counsel’s decision not to cross-examine Superintendent Setter on the differences between his version of the telephone conversation and that of the appellant, and his decision not to tender the transcript of the directed interview in re-examination, are rationally explicable.
 As Southwood J said:
Counsel for the appellant is a very experienced barrister who made deliberate forensic decisions to strictly confine his cross-examination of Superintendent Setter about this topic and not to re-examine the appellant about what he said during the directed record of interview.
 The reason for this forensic decision, as counsel explained on the appeal before Southwood J, was that he had elected to conduct the case in the Court of Summary Jurisdiction on the basis that the appellant’s and Superintendent Setter’s versions of their telephone conversation on 11 October 2011 were reconcilable. The nature of the defence case was that there was a reasonable possibility that someone else had downloaded the child abuse material onto the USB drive. Indeed at the end of the Crown case, defence counsel made a no-case submission on the basis that there was no evidence that the appellant knew the child abuse images were on the USB drive, a strategic decision which may well have informed counsel’s decision to limit his cross-examination of Superintendent Setter on the telephone conversation.
 A transcript of the directed record of interview was provided to this Court and a consideration of the information provided by the appellant on that occasion makes it plain that it would not have been in the interests of the appellant for the transcript to be introduced into evidence. Counsel had a strong incentive to avoid the transcript being placed in evidence and he followed that path.
 Nor do we think that the failure to cross-examine in the manner suggested and the failure to adduce that evidence led to a miscarriage of justice. It did not deprive the accused of a chance of acquittal that was fairly open. When viewed in combination with the other evidence given at trial, it cannot be said that additional cross-examination of Superintendent Setter and tendering of the transcript of the directed interview would have been likely to have engendered a reasonable doubt about the guilt of the appellant in the mind of the magistrate.
 The decision of the magistrate was based to a large extent on his finding that the appellant’s account of his previous involvement with child pornography, and his account of the telephone conversation “beggars belief”, and on a consideration of all of the matters set out at  above.
 Southwood J on the hearing of the appeal agreed with the magistrate, and so do we. We respectfully concur with the remarks of Southwood J set out at  above.
 Further, as counsel for the respondent pointed out in submissions, at no stage did the appellant offer any explanation as to why he thought the Northern Territory police would be concerned with a Japanese porn site; why he thought it necessary to download child pornography images instead of just writing down the address of the site; why, having done so, he did not in fact report the matter to Elio Valenti or any other police officer; or why he did not make an entry in the PROMIS system or make any other note of it at the time.
 Add to this the “co-incidence” that the child abuse material on the USB drive contained images of Asian children, and the web site that the appellant told Superintendent Setter he had stumbled across years before was “a Japanese porn site where there were pictures of children”: it is inconceivable that he was not offering Superintendent Setter an explanation for the pictures on the USB drive, and as the magistrate found, that explanation was a lie which demonstrated both his knowledge of the contents of the USB, and consciousness of his guilt in possessing that material.
 In our view, therefore, the appeal must fail. The decisions to limit cross-examination of Superintendent Setter and not to introduce the transcript of the directed interview in re-examination appear to have been rational tactical decisions, based on the case theory adopted by defence counsel at the trial, explicable on the basis that they could have resulted in a forensic advantage for the defence which was not slight in comparison with the prospective disadvantage, notwithstanding the result. They were not egregious errors of a kind which effectively deprived the appellant of a fair trial, and there has been no miscarriage of justice.
 The appeal is dismissed.
 (1993) 178 CLR 193.
 Chenhall v Mosel  NTSC 19 at .
 Ibid at .
 Ibid at .
 (2002) 212 CLR 124.
 or, rather, the failure to obtain an advance ruling on whether, if character evidence was called, the Crown would be permitted to call specified evidence in rebuttal
 Ibid at 128 .
 Ibid at 130–1 .
 Ibid at 133  per Gaudron J; 149–50  per McHugh J.
 Ibid at 133  per Gaudron J.
 Ibid at 135 ; see also at 149–50  per McHugh J; Nudd v The Queen (2006) 162 A Crim R 301 at 312  per Gummow and Hayne JJ.
 (2006) 162 A Crim R 301.
 Ibid at 330 .
 (2002) 212 CLR 124 at 148 .
 Chenhall v Mosel  NTSC 19 at .
 Ibid at .