Clark v The Queen A24/1997 [1998] HCATrans 56 (12 March 1998)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A24 of 1997

B e t w e e n -

MATTHEW WILLIAM CLARK

Applicant

and

THE QUEEN

Respondent

Office of the Registry

Adelaide No A25 of 1997

B e t w e e n -

ROBERT GRAEME WHITE

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

BRENNAN CJ

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON THURSDAY, 12 MARCH 1998, AT 11.41 AM

Copyright in the High Court of Australia

_________________

MRS M.E. SHAW, QC: May it please the Court, I appear for the applicant, Robert Graeme White, with my learned friend, MR C.J. KOURAKIS, QC. (instructed by Caldicott & Co.)

MR P.J. RICE: May it please the Court, I appear for the applicant, Matthew William Clark, with my learned friend, MR D. PETRACCARO. (instructed by Caldicott & Co.)

MR P.R. BREBNER: May it please the Court, I appear for the respondent, with my learned friend, MR H.E. WIGHTON. (instructed by the Director of Public Prosecutions (South Australia))

BRENNAN CJ: Yes, thank you, Mrs Shaw.

MRS SHAW: The two questions of importance raised by this application are, firstly, what is the test for determining whether a conflict of interest exists in the course of legal representation and, secondly, what is the consequence upon appeal from a conviction if it is demonstrated that the accused's legal representative was in a position of conflict. The question of what is a conflict of interest has fundamental importance in its own right, in relation to the control and supervision of the conduct of the legal profession.

In relation to the first question, we submit that in the context of joint representation an actual conflict of interest exists where a course of conduct, dictated by the best interests of one accused would, if followed, be inconsistent with the best interests of the co-accused, and that is the definition that we have set out in our reply in the appeal book. We say that the duty of the lawyer is not only to conduct all those investigations which are in his client's best interests, but also to inform his client of everything he knows that will be of assistance to his client, even if it comes from another client or even if it is information obtained during investigations conducted on behalf of the other client. We rely in particular on the judgment of the New South Wales Court of Appeal in O'Reilly v Law Society of New South Wales (1988) 24 NSWLR 204, the passages at pages 213 to 215 of the judgment and the reliance on the judgment in Spector v Ageda.

We say that if there is a risk that the investigation the solicitor is duty bound to undertake for one client will reveal information that will harm his other client, he is in a position of conflict, and his failure to undertake those investigations, and hence avoid the conflict from becoming a reality, does not remove the solicitor from his position of conflict. In the present case - - -

BRENNAN CJ: Mrs Shaw, if we can just leave what might be regarded as highly desirable expressions of principle aside for a moment, on the facts of this case there was a solicitor who, in a sense, wrapped his client in a backing sheet and gave him to a barrister, and Mr Moffa then took over the defence of Mr White, is that right?

MRS SHAW: That is so, your Honour.

BRENNAN CJ: Looking at pages 260 and 261, where does one see any indication of the failure on the part of Mr Moffa to discharge the duty which descended upon him to represent Mr White?

MRS SHAW: Your Honour, it is not a question of whether or not there is a failure in the duty of Mr Moffa. Mr Moffa's representation is already compromised because the solicitor's brief that he receives is compromised or undermined by the conflict of interest his solicitor has. In other words, in this case Mr Patsouris, during the course of his representation, would have received information both from Brenton White and Jason Greatbatch. That information not only should have been passed on to Robert White but also to Mr Moffa. In other words, Mr Moffa, in the same way as Mr White did not have the benefit of Mr Patsouris' knowledge from his other clients, neither did Mr Moffa. So that - - -

BRENNAN CJ: Say your client had gone directly to Mr Moffa, would Mr Moffa have been under a duty to do anything other than what he did?

MRS SHAW: Your Honour, his duty on behalf of his client would have been to investigate his defence. His ability to do that the night before trial, accepting a brief which he would have, at least at the outset, anticipated, contained all of the relevant investigations that the solicitor was able to undertake, is not a measuring stick to judge whether or not Mr Moffa in fact gave this man a fair trial. The bottom line is - - -

BRENNAN CJ: What are the investigations which in your submission Mr Moffa could and ought to have made had he time to make them?

MRS SHAW: Your Honour, in particular, obtaining witnesses from the very hotel where this event occurred who could support Robert White's defence that he was not there, and not only that, identify the person for whom Robert White believed he was mistaken. In other words, there was a two-pronged positive defence that needed to be investigated arising out of Robert White's contention he was not at the hotel. It is not just a question of the other accused being at the hotel, this is a hotel where there was a show going on with many spectators and bar staff. So fundamental to his defence was, first of all, to investigate who else could support his absence, and secondly, confirm who might he have been mistaken for. That task was never undertaken by a solicitor and it was never undertaken by his barrister.

BRENNAN CJ: So, you are not speaking simply of evidence that might have been forthcoming from Scott or - the name of that other witness, whose name I cannot - - -

MS SHAW: Corbett. Corbett is the alibi witness, your Honour.

BRENNAN CJ: Corbett. You are not speaking simply of those?

MS SHAW: No, I am not. What I am saying is that certainly, as far as Scott was concerned, his presence and the knowledge of what he could say cast a spanner in the defence of Brenton White, and, indeed, Jason Greatbatch, because any witness that Robert White would call to identify who was there would jettison the defence of Jason Greatbatch and potentially Brenton White, and it is in that background that there was an actual conflict of interest by the solicitor to continue to represent Brenton White during the trial.

In other words, even though he handballed the brief to Mr Moffa, Mr Patsouris's evidence was that he continued to consult with counsel for Brenton White and Mr Brenton White during the trial. In those circumstances, there remained an ongoing obligation of Mr Patsouris to inform Robert White of, indeed, what information he was receiving that might have assisted Robert White's defence. The difficulty that the Court of Appeal was faced with, and why we say they fell into error, is because this was not a case where the Court of Appeal had the benefit of what, indeed, Brenton White had said to Mr Patsouris, what Jason Greatbatch had said to Mr Patsouris, or, indeed, what they would say about the events on the night of the offence. Mr Patsouris in his evidence in the application book at page 141 - - -

BRENNAN CJ: Ms Shaw, I must confess - could I just delay you for a moment, before you come to this. You focus upon the failure by Mr Patsouris to discharge his professional duty and you focus, appropriately, on questions of conflict of interest. If Mr Patsouris had discharged his duty in this case, would he have continued to act for Robert White once he understood what the general nature of the events were in which this group of clients were involved?

MRS SHAW: Not if he continued to act for Brenton White, because if he had attained the information from Mr Scott early in his representation, or he had obtained the information from any witness who confirmed that, indeed, Brenton White and Jason Greatbatch were at the hotel, then those witnesses undermined the defences that were proposed, as far as we know, of the other two accused.

BRENNAN CJ: So, as soon as he discovered that Robert White had an alibi, he ought not to have acted for Robert White whilst he continued to act for others.

MRS SHAW: It is not a question of discovering he has an alibi, it is discovering witnesses who potentially implicate his other clients.

BRENNAN CJ: The point is this, is it not, that if one looks at what ought to be done in the interests of Robert White, one must discount what might have been gained by Mr Patsouris in the course of the trial from those for whom he continued to act, namely, the other White and Greatbatch? One cannot really say, on the one hand, he should not have acted for all of them because there is a conflict of interest, and then say, but having acted for all of them, he should have made the information available from each, available to the others. That only compounds the error.

MRS SHAW: But, your Honour, that does not, in any way, impinge upon, one, that he was in fact in a conflict, and in the absence of investigation, this man's representation was compromised. If, indeed, he did conduct the investigations then this man might have presented a different defence at trial. It does not impact on whether or not what the other accused may or may not have done.

BRENNAN CJ: Yes.

MRS SHAW: The essence of the argument is that, by acting as he did, he breached his duty. It is not just a question of not doing enough, it is a matter of him acting in circumstances where there is a broader perception of conflict, and when a court comes to consider the consequences of that representation and postulates what might have been the result of a different course.

The cases, and in particular the Canadian Supreme Court, have made it quite plain that it is in accordance with public policy considerations to approach that question from an objective point of view, that is by considering if there was a conflict subsisting during the representation, then there is an irrebuttable or rebuttable presumption of prejudice, that that is prejudice to the fair trial. Otherwise the court is reduced to investigating whether it is prepared to trust a particular solicitor when he says, "I rely on privilege and trust me", or, alternatively whether a court is prepared to condone, and even forgive, solicitors acting in breach of duty in circumstances where, as in this case, the result was a positive defence to be presented was, in fact, not presented, and investigations which the solicitor was duty bound to undertake were not undertaken and, indeed, in our submission, one could not impose on counsel a like duty.

So, your Honours, we say here that the Court of Criminal Appeal, by concluding that, in fact, Mr Patsouris was never in a conflict of interest, has indeed had the effect of allowing a solicitor to continue to act despite the fact that the interests of his clients might diverge at any time, when he commenced investigations. The Court of Appeal said in the application book at page 268 at line 17:

In my opinion the evidence does not show that Patsouris was ever in a position of conflict here.

That is effectively throughout the representation of the accused, Robert White. However, Mr Patsouris' evidence, on this crucial topic, at page 141 when he was asked whether or not he received information from Brenton White - this is at page 141 line 5 in particular - he said, as to whether or not that information could assist Robert White in his defence, he said he did not wish to answer those questions. In other words, the court was reduced to relying on the privilege that meant that Robert White could not ascertain, or the court could not ascertain, what information, indeed, Mr Patsouris had received from the co-accused. We say the fact that he was required to claim privilege, or rely on the privilege, demonstrates the conflict throughout the representation.

The difficulty which the Court of Criminal Appeal judgment represents, we say, is that it fails to identify correctly when a conflict of interest does arise and we say that a conflict of interest must arise in circumstances where a solicitor does not pass on the information that might assist a client and, indeed, claims privilege or relies on privilege in relation to that. So that, we say the importance of this judgment is that it allows a solicitor to act for a number of clients in circumstances where, if he does not divulge to the co-accused what the information is he is receiving from his other clients, then he will not be in a conflict of interest. We say that that result is a matter which is of grave concern to the conduct of the legal profession and the courts policing of that conduct.

BRENNAN CJ: Mrs Shaw, could you just identify briefly the steps in the argument which will lead, in your submission, to an allowing of the appeal in the case of White. That is, what is it that will demonstrate the existence of a miscarriage of justice?

MRS SHAW: Your Honour, the steps in the argument are that on the evidence in this case was there an identified actual conflict of interest, quite apart from the appearance of conflict, that in the course of the representation of Robert White, we say that the evidence of Mr Patsouris, where he relied on privilege to say that he did not disclose to Robert White information that might have assisted him during the course of the investigation, did not disclose that to counsel, indicated an actual conflict of interest.

BRENNAN CJ: Where do we find that established, that he did not communicate information to White or his counsel which may have been of advantage to that client's case, by reason of privilege owed to other clients?

MRS SHAW: At pages 141, your Honour, and 148 of the application book. The other aspect of conflict; the evidence of conflict, we say is that the failure to undertake the investigations in circumstances where, if they were undertaken, there was a risk of harm to the other client, which was clearly the case, even on the findings of the Court of Criminal Appeal, establishes a conflict. Having those two aspects of the conflict established, we say that the integrity of the criminal justice system and the public policy considerations surrounding that deals with these matters so seriously that there is a presumption of prejudice, a presumption of miscarriage.

There is conflict between the majority and minority in the Supreme Court of Canada, in McDonald Estate v Martin, as to whether that is irrebuttable, or rebuttable. The Australian decisions of National Mutual Holdings v Sentry, and Mallesons, the single judgments of his Honour Justice Gummow, and his Honour Justice Ipp, also apply an objective test and consider whether it is a rebuttable or an irrebuttable presumption of prejudice. Because the solicitor maintained reliance on the privilege, it was not rebutted in this case. So, we say that in those circumstances the question of the duties of a solicitor; the questions of conflict of interest, and the question of whether or not it gives rise to a presumption of prejudice, a presumption of miscarriage, are questions deserving of special leave. We say that the question of conflict goes to the core of the solicitor-client relationship, and it is fundamental to the supervision and guidance for future solicitors, and the integrity of the profession, generally, and the criminal justice system.

CALLINAN J: Mrs Shaw, the report of Mr Patsouris, do we have that in the application book?

MRS SHAW: We do not, your Honours.

CALLINAN J: There was a report, was there not, that he was cross-examined on?

MRS SHAW: The report was provided to the court before he was called. The court asked counsel whether it accepted that report from an officer of the court even though there were some conflicting matters with the evidence on oath - - -

CALLINAN J: No, Mrs Shaw, do we have it in the application book, the report?

MRS SHAW: No, we do not, we do not have the report.

CALLINAN J: No, and why was that course adopted? Whose idea was it that he should submit a report? Was that the court's idea?

MRS SHAW: It was, perhaps, the court's idea following from a case of Reg v Gilfoyle in England when the court called for reports, and we joined in the calling for report, but we took the approach that it was an objective test and there was not a need to reduce the questions to evidence and deciding what the credibility was between Mr Patsouris and the client.

CALLINAN J: Thank you.

BRENNAN CJ: Thank you, Mrs Shaw. Shall we call on Mr Rice at this stage?

MR RICE: If your Honours please, I can be much shorter than Mrs Shaw. The point that I make or endeavour to make is much narrower. I am content to adopt the majority of Mrs Shaw's submissions on the facts and the law.

BRENNAN CJ: How does that affect your client, Mr Rice?

MR RICE: My client, your Honour, if anything, was on the outer, if I can put it that way. My client was separately represented at all times and, because of that, information that should have been made known to him was not.

BRENNAN CJ: Should have been made known to him by whom?

MR RICE: By the counsel acting on behalf of Brenton White.

BRENNAN CJ: Why?

MR RICE: If I could just explain why I say that - because it would appear from the reasons of judgment of the Court of Criminal Appeal that all counsel relied upon the advice of Ms Vanstone QC on behalf of Brenton White that no witnesses be called and that none of them would give evidence. That emerges from the decision of Justice Cox at 259 of the application book and Justice Perry at 273. At page 259, referring to the principal paragraph on the top of that page about line 10 or thereabouts, referring to Robert White and Robert White's counsel:

His going into the witness box was never discussed with counsel. He did discuss the subject with his co-accused and the decision was to go with the advice of Ms Vanstone QC (counsel for Brenton White), namely, that none of them would go into the witness box, and it was also agreed reluctantly that none of them would make a statement from the dock.

The last bit does not quite make sense in the context of the law in South Australia. So, what we say here, if the Court pleases, is that the decision by Matthew Clark not to give evidence but, more particularly, not to call Scott was being pushed and, in effect, determined by the advice of counsel for Brenton White.

BRENNAN CJ: That cannot be right, surely. That surely cannot be right. Where, first of all, is there any evidence of that or any finding to that effect?

MR RICE: Principally, your Honour, in the judgment of Justice Perry at 273, with whom Justice Lander agreed - although Justice Lander, I should add, agreed with both of the other judgments. At page 273, in that paragraph starting on line 9:

In this case, it is clear that the so-called fresh evidence could, with reasonable diligence, have been produced at the trial. Furthermore, it is equally clear from the evidence given before the Full Court that the absence from the witness box of the appellant Robert White and of the two witnesses to whom I have referred at the trial was a consequence of the deliberate decision made by all four appellants that none of them would give evidence or call witnesses in aid of an alibi defence. Apparently this stemmed from advice given by Ms Vanstone QC, who represented the appellant Brenton White.

We say that that advice must have been given in the realisation that for Robert White to have called any witnesses - mainly the witness Scott - that would have automatically implicated Brenton White, and hence we say that that was an invidious position in which Matthew Clark was put in because, in effect, his counsel was relying upon advice and recommendation from another counsel whose interest it was not to have Scott called.

BRENNAN CJ: But there is no evidence of any reliance by counsel on advice given by other counsel. Surely counsel has to discharge a duty to his client, and there is nothing to suggest that that duty was not discharged in Clark's case.

CALLINAN J: It was a tactical conference, was it not, that counsel had and they all agreed upon the course, I thought.

MR RICE: Certainly, a bit further down page 273, that emerges from what his Honour Justice Perry says, that certain tactical decisions were made. And then, but importantly, his Honour says at about line 25:

The appellants, more particularly the appellants Robert White and Clark, cannot have a second bite at the cherry.

What we say is that Matthew Clark never had the first bite, because his counsel was relying upon advice from a co-accused counsel whose interests it were to keep Scott out of the witness box. Hence we say that he was one removed from and he was unaware - and that seems to have been accepted that he was unaware, up until the time of preparation for the appeal for the Court of Criminal Appeal, of what Scott would say. So he was kept in the dark; Matthew Clark was kept in the dark about - - -

BRENNAN CJ: He was not kept in the dark. He was represented and could make such inquiries as he or his advisers saw fit. And there was evidence available which was not called by Clark or on his behalf. Where does that take you?

MR RICE: There was certainly not evidence called by anyone, but Clark's point is that he did not know about what Scott would say until the preparation - - -

BRENNAN CJ: Well, did he ask him? Did he ask Scott?

MR RICE: No, he was not to know that Scott might be able to give any relevant evidence, so I think on the evidence - - -

BRENNAN CJ: Why was he not to know that? I mean, he was not deceived in any way, was he?

MR RICE: No, your Honour, he was not deceived.

BRENNAN CJ: It was just a case of evidence that might have been available if due diligence had been discharged.

MR RICE: But on Matthew Clark's evidence, he was not at the hotel at the relevant time and was not in a position to know whether Scott might be able to exonerate him in that respect, Scott, on Scott's account, having been at the hotel. But the point that I come to, if the Court pleases, is that had Clark known of Scott, the course of the trial for Clark may well have been different. He may have, for instance, given different instructions to call Scott, as apparently he gave instructions that Scott not - sorry, that he may have given certain instructions if he had known of Scott, notwithstanding the views of the other counsel and the other accused, and he may in that situation have decided himself to give evidence, notwithstanding the views of others.

So he was put into the situation, in our submission, that was irretrievably unfair for him because things were happening, as it were, away from and without his knowledge. We say the special leave point is that in those circumstances, the manner of the coming to light of the fresh evidence should give rise to a new trial to enable Clark to make an informed decision about the course of his own trial. Hence, we say the special leave point is that the threshold test for this man on this occasion is and should be less demanding than it would otherwise be for fresh evidence. Fresh evidence tests have been variously formulated as being a significant possibility or likelihood. We say that in this situation they are too demanding and that it should be a less demanding test, it being simply a possibility that he has not received a fair trial. If the Court pleases, they are my submissions.

BRENNAN CJ: Thank you, Mr Rice. Mr Brebner, we should indicate that we do not need to hear you in the case of Clark.

MR BREBNER: If the Court pleases, it is my submission that in White's Case, the fundamental question of miscarriage turned on questions of fact and nothing more, that the court resolved these questions of fact adversely to White, that the court had sufficient evidence before it to enable it to make an adequately informed determination of the objective facts and thus a properly informed judgment on those facts, including the vital question of possible conflict of interest, and it was thus unnecessary for the court to have recourse to any objective test or fair-minded observer test.

It is also my submission that it would have been completely inappropriate for the court to draw any inference whatsoever from the fact that Patsouris maintain privilege that had not been waived by either of his clients, Brenton, White or Greatbatch. Moffa was, in fact, retained about a week or in the week preceding the trial and took full instructions from Robert White over the weekend.

BRENNAN CJ: I do not understand Mrs Shaw to be basing her application on any failure by Moffa to discharge his duty. The question is whether Patsouris, having undertaken the defence of a number of the accused, was in a position of inevitable conflict as illustrated by the fact that he was unable or unwilling to divulge the information obtained from some of his clients to counsel for her client,White, or to the court for that matter, at a later stage. What do you say about that?

MR BREBNER: In my submission, he was plainly unable to provide the material to the court because privilege had not been waived and it is also my submission that, on the evidence as presented and on the way the trial was conducted, it is speculative to suggest that he was ever in possession of any material that he received from Brenton White or Greatbatch that would have been of any advantage to Robert White, in any event. It was his evidence - and I am summarising - at pages 141 and 142 of the application book that after the committal proceedings had finished he considered his position in relation to the potential for conflict, arising out of the instructions he then had from Brenton White and Greatbatch, and determined that he should cease to act for one of them.

As he had been approached by Brenton White first, he decided he would keep Brenton White and send Greatbatch off to another solicitor. As far as Robert White is concerned, or the Whites, on the instructions he had, on his evidence there was no actual or potential conflict between them. He was not aware of any witnesses who could create a conflict and if he had been he would have got rid of one of them. That being the case, in my submission, it is very hard to say that there was even an appearance that he was doing less than his duty to Robert White on account of a preference for Brenton White's interests.

In my submission, the court had adequate material before it to enable it to reach a safe conclusion that he was not in a conflict situation. The court had before it the evidence at trial, the conduct of the respective defence of the trial and the evidence led on the hearing of the appeal, and this was more than enough material to enable inferences to be safely drawn about the critical issues and was sufficient for the court to make a properly informed judgment on it.

In my submission, Patsouris's assertion that he turned his mind to the question of conflict involving these men and thought there was not one is supported by the fact that he perceived a conflict between Brenton White and Greatbatch and ceased to act for Greatbatch. The cross-examination by Brenton White's counsel at trial seemed to indicate that he was not denying that he was at the hotel. And, of course, this was not inconsistent with Robert White's case and Scott's evidence, if called by Robert White, would not necessarily have embarrassed Brenton White in any event.

Really what Scott had to say was not inconsistent with Brenton White's defence, and would not have caused Brenton White, and for that matter Patsouris if he knew about Scott, to have anything to fear from Scott being called by a co-accused. Brenton White's counsel cross-examined effectively on the basis that Brenton White did not deny being at the hotel, but that the three victims were mistaken in their identifications of him. Scott, in his affidavit and before the Court of Criminal Appeal, put Brenton White at the hotel but did not put him in any fracas. Indeed, the fracas that Scott described, seems to have been an entirely different incident from the one that the three victims described.

Scott talks about being set upon while he is examining his motor bike outside the hotel, and of hearing a number of angry voices, none of which he recognised as being friends of his. Initially he said after he had been beaten up he was picked up off the ground by Brenton White, and could see Greatbatch somewhere in the background. But come cross-examination, he retreated from that position and effectively said he did not know who picked him up, and did not see anyone he knew who had apparently been involved in this fight and, thus, in my submission, whichever way you look at his evidence, it does not put Brenton White in the incident which was the subject of the charge. At worst, it puts him in the hotel, or near the hotel, which was something that he did not deny in any event.

Also, it is my submission, on this topic of conflict, that even though Patsouris may have been dilatory, the antidote was well and truly applied when Moffa took over, and the situation was precisely the same as it would have been if Patsouris had adverted to a conflict and sent Robert White off to another solicitor in any event. If he had received information which might have assisted one accused to the detriment of another - and it is only speculative to suggest that he did - then he was duty bound to send one of them off somewhere else, but he would have been prevented, by privilege, from divulging the information to the new solicitor for one of the accused in any event.

Now, the cases that my learned friend refers to about objective tests really seem to apply to circumstances where an objective assessment of the situation cannot be made in the sense of it is impossible to determine from evidence precisely what the situation is. For example, suspected bias on the part of a jury, or a perception that, if a trial goes ahead, someone might well be prejudiced by some form of conflict. Here, the situation is totally different. The court were able to determine adequately whether there had been a conflict or not. They determined that there had not, and determined that the proper presentation of Robert White's defence had not been prejudiced by any actual or potential conflict of interest which, of course, brings me back to where I started, which is the proposition that the fundamental question of miscarriage in Robert White's case turned on the facts. If the Court pleases.

BRENNAN CJ: Thank you, Mr Brebner. Mrs Shaw.

MRS SHAW: Your Honours, we say that the findings of fact are not an answer to the existence of a breach of duty in this case. First of all, the findings of fact are adverse on limited questions and how decisions were made in an already compromised brief. It is speculative to say that an investigated defence would be no better defence than one that is not prepared at all. It relies on the - - -

CALLINAN J: Excuse me, Mrs Shaw, could I just ask you a question. If you go to page 260 of the application book, commencing about line 23, the judgment really deals in detail with what seems to have been an informed decision by your client, on the advice of his own counsel, not to call any evidence at all because he was not going to give evidence himself. I think that passage, beginning at about line 22, clearly conveys that, does it not?

MRS SHAW: It does, your Honour, but the difficulty about that decision is that it is a decision which has come as a result of advice that is burdened by the conflict of interest of the solicitor and advice that is burdened because of the lack of investigations that in fact occurred. In other words, the only advice that the solicitor was able to give to him was based upon, one, the existence of a witness for whom he could be mistaken, namely, Scott, and, two, the existence of one alibi witness.

CALLINAN J: What about Corbett?

MRS SHAW: I am sorry, the existence of one alibi witness, Corbett. That is Mr Moffa was not able to give this advice, which the evidence said he gave, namely, "If you are not going to give evidence, then you should not call Mr Corbett." Mr Moffa was not in a position to give any other advice with the benefit of the investigations that should have been conducted and with the benefit of anything that Mr Patsouris may have known from Brenton White. In other words, the decision of the applicant itself is a product of the advice and the advice is not informed advice or advice uncompromised because of the representation that had occurred throughout this man's case.

CALLINAN J: For myself, Mrs Shaw, I must say that I read that passage as meaning that your client, after careful consideration, and after discussions with the co-accused, made a decision that he would not give evidence and that he would not want any other witness called on his behalf. That is how I think that passage reads.

MRS SHAW: Your Honour, in our submission, that is not - - -

CALLINAN J: Look at it, Mrs Shaw. Look at it please at about line 42:

The appellant was firm in his decision not to give evidence. He made that clear on the Saturday morning and he confirmed it on the Monday when he said that he had spoken to the other accused and they were not proposing to give evidence.

It seems to have been a very firm decision not to call evidence. I know what you say about the earlier compromise, but this seems to be a later, informed decision, albeit absence a specific discussion about Scott.

MRS SHAW: Two things about that is: the fact that even if he does have discussions with his other co-accused, it does not, in any way, derogate from the duty of the solicitor to have given him proper advice in the first place. In other words, his discussions with his others are premised upon the representation he has had up till that point in time, and secondly, it does not derogate from the right he has to have representation from both solicitor and counsel who do give him informed, unburdened advice.

BRENNAN CJ: Mrs Shaw, could I just ask you in relation to that, coming back again to Mr Patsouris and that situation, Mr Patsouris might have known of Scott, might have known of Corbett, now, is there anything to suggest that if he had acted for your client alone, that he might have come to know of other witnesses? The reason why I ask you that question is because, by reason of the passage which Justice Callinan has drawn your attention to, it seems that Scott and Corbett are fully accounted for, so far as miscarriage of justice is concerned.

MRS SHAW: Well, in our submission, they are not necessarily fully accounted for because the advice that Mr Moffa gave him was limited by the information he had in his brief about those two persons, that is absent statements from them having been taken by the solicitor, absent details of the description of Scott, so that whatever decision he made is still a product - it does not undermine the duty of the solicitor or, indeed, counsel in this case, to give him informed advice.

At no stage was anyone in a position to do that because not even a statement had been taken which the solicitor or counsel could discuss with the accused and allow him to make a decision. We say, therefore, that it would not matter how many people he spoke to or whatever decision anyone else made, it does not disentitle him to informed loyal advice from his counsel and from his solicitor.

BRENNAN CJ: If I might take you a little further on that. If it is a question of not having in his brief a proof of Scott's evidence - Scott ultimately gave evidence.

MRS SHAW: Yes.

BRENNAN CJ: According to the view taken by the Court of Criminal Appeal, Scott was not a witness to be called under any circumstances so that, in a sense, negatives the prospect of miscarriage of justice from that score.

MRS SHAW: In our respect it does not, for a very good reason. The relevance of Scott was not just on a credibility issue but, more importantly, in relation to his appearance, and his appearance was an objective fact and how you adduced evidence about that had nothing to do with whether you believed him in the witness box. This was a case which was unusual because this accused had a position where he was mistaken for a particular man and therefore, that decision could not be resolved on credibility.

BRENNAN CJ: What do you say about page 260, line 29:

Scott was not prepared to give evidence and that he was not to be called.

MRS SHAW: That is so. Your Honour, that does not undermine the duty of the solicitor to advise the client about his ability to adduce evidence as to Scott's appearance, quite apart from calling him. This counsel could not give that advice because he had no instructions as to, one, the appearance of his own client and, two, according to Mr Patsouris and Mr Moffa, they never address the appearance of the person and the description of the person for whom White says he was mistaken in the hotel. This was an identification case, not a credibility case and, without statements being taken, those questions of identification could not be explored. Any other person at the hotel could have deposed to the appearance of the people who were in this group. It was an identification based on a photograph and the particular question that had to be answered was whether or not the photograph of White that was selected compared in any way to the appearance of Mr Scott. That did not require Mr Scott even to be called. All that required was for someone to take instructions or a proof and obtain the details of the appearance of Mr Scott and prove that appearance and put it to witnesses.

BRENNAN CJ: Well, that was a proposition to which Mr Moffa may have given attention, but at page 261, line 11 the explanation for that appears.

MRS SHAW: Well, your Honour, in fact that does not reflect the evidence of Mr Moffa, because Mr Moffa did use Mr Scott's name in court, he cross-examined the police officer on the voir dire before the trial started about Mr Scott, disclosed his name and then spoke to the police officer outside court. The difficulty in resolving questions which address conflict on these subtle credibility issues is that one overlooks, in our submission, the real question, namely, was there a breach of duty, was there a conflict?

The judgment, for example, of the Queensland Supreme Court in Mill's Case, which is relied on in Sentry, says that if the accused gives evidence of a conflict, one should not examine credibility of lawyer against client to resolve such important issues. We submit that to have to reduce to the subtlety of a finding like that, bearing in mind that this was an objective fact, does not in any way impinge upon the importance that the lack of action in this case, or the lack of representation, lack of an investigation, had on this man's defence. If the Court pleases.

BRENNAN CJ: Thank you, Mrs Shaw.

In the case of Clark v The Queen, no ground for the grant of special leave has been shown and for that reason special leave is refused.

In the case of White v The Queen, the view of the Court is expressed as follows: although it is clear that it is the duty of solicitors and counsel acting for accused in a criminal trial to be astute to avoid any conflict of client's interests, and although in retrospect it may have been preferable for the applicant's solicitor not to have represented the applicant and co-accused, the findings of the Court of Criminal Appeal are sufficient to show that there was no miscarriage of justice in this case. For that reason special leave will be refused.

AT 12.35 PM THE MATTER WAS CONCLUDED