R v David Stokoe

On an appeal against conviction, criticism of trial counsel or an alternative strategy does not establish that the convictions are unsafe. The court must assess the criticisms cumulatively, but a conviction remains safe where counsel’s decisions are reasonably explained, the defence case was put, and the trial record provides no proper basis for rejecting counsel’s account. The fact that material was not bundled during the first cross-examination is not decisive where the material was available, further cross-examination was permitted, and the defence had a fair opportunity to use it. A second cross-examination does not, without more, demonstrate inadequate representation.

The appellant had been convicted in 2017 of rape, assault by penetration and two offences of assault occasioning actual bodily harm. He appealed against conviction after receiving limited leave to appeal. The grounds alleged that late disclosure of a large volume of messages left trial counsel with inadequate time to prepare, that important matters were not put to the complainant, and that counsel had failed to follow the appellant’s instructions concerning responsibility for one assault.

The appellant also challenged the decision to proceed with the trial while he was absent from case-management hearings. The central issue was whether the individual criticisms, considered cumulatively, established that the convictions were unsafe.

1. Appeal dismissed. The appellant’s absence from the case-management hearings did not make the convictions unsafe. There was nothing material that he could have added, and his wish to retain the original counsel could not determine the matter after that counsel had withdrawn.
2. The court rejected the allegation that replacement counsel had inadequate time to prepare. Counsel provided a full and robust response to the criticisms. That response was supported by the available transcripts and had not been challenged by written rejoinder or oral cross-examination. There was therefore no reason to disregard it.
3. The fact that the bundle of messages was not available during the first cross-examination did not, in itself, make the convictions unsafe. The material had been available to the defence, the complainant was later recalled, and further cross-examination was conducted with the benefit of the bundle.
4. The decisions taken by trial counsel were adequately explained. The defence case had been put, including the point that the complainant had attributed injuries to another person in a message. The fact that appellate counsel might have pursued matters differently did not establish a viable ground of appeal.
5. A second cross-examination did not render the trial representation substandard. The cumulative criticisms did not undermine the safety of the convictions.

• Court of Appeal (Criminal Division): On 14 November 2023, the Full Court granted limited leave to appeal against conviction. On 12 April 2024, the appeal was dismissed.
• Trial court: The appellant was convicted on 24 June 2017 of rape, assault by penetration and two offences of assault occasioning actual bodily harm. His sentence was later reduced on appeal against sentence to a total of 13 years and 4 months’ imprisonment.