Citation: Regina v Roberts [1999] NSWCCA 124
Court: NSW Court of Criminal Appeal
Date: 12 May 1999
Judge(s): Spigelman CJ, Bell J, Smart AJ
Background
The appellant was convicted in the District Court at Lismore of sexual intercourse without consent contrary to s 61(1) of the Crimes Act 1900 (NSW). The complainant gave evidence that, after accepting a lift from the appellant following a christening celebration, he drove her to a secluded location and sexually assaulted her. She fled in his car and returned to the Mission in a visibly distressed state, without clothing on the lower half of her body, and made immediate complaints to several witnesses.
The appellant gave a markedly different account. He denied any assault and said the complainant drove off unexpectedly, running over him and leaving him seriously injured at the scene. He spent the night sheltering outdoors and was found by a fruit picker the next morning. He initially gave a false account to ambulance officers and police, denying knowledge of the driver, which he later admitted were lies.
The appellant originally filed four grounds of appeal following conviction in March 1997. All four were ultimately abandoned. The appeal proceeded on a single amended ground: that trial counsel's decision not to call a witness named Stephen Roberts, who was present at court and willing to testify, had caused a miscarriage of justice.
Legal Issues
- Whether trial counsel's decision not to call Stephen Roberts as a defence witness amounted to a miscarriage of justice.
- Whether the untested evidence of Stephen Roberts had sufficient probative weight that a jury acting reasonably might have acquitted the appellant had it been before them.
- Whether the circumstances met the threshold for appellate intervention established in Regina v Birks (1990) 19 NSWLR 677.
Decision
The Court of Criminal Appeal received fresh evidence on the appeal, including statutory declarations and oral evidence from Stephen Roberts, the appellant, and another witness. The Court examined what Stephen Roberts' evidence would have added to the defence case, including his account of the complainant's appearance and demeanour on her return to the Mission and a conversation he claimed to have had with her shortly after the incident.
Bell J, with Spigelman CJ and Smart AJ agreeing, found that Stephen Roberts' account of the complainant's appearance and state of distress did not materially assist the defence. His description of her demeanour was broadly consistent with the Crown case and did not contradict the evidence of distress given by other witnesses. Additionally, evidence concerning a reported conversation in which the complainant allegedly referred to the appellant being "at the back hitching with a white guy" lacked sufficient relevance given the broader context of her account to other witnesses at the Mission.
The Court applied the principles from Regina v Birks, which recognise that trial counsel holds a wide discretion over how proceedings are conducted, including which witnesses to call. Intervention is warranted only where something in the running of the trial, perhaps through "flagrant incompetence" of counsel or some other cause, produces a miscarriage of justice. The Court found the facts fell far short of that standard. Trial counsel had declined to call Stephen Roberts for tactical reasons, and that decision remained within the proper exercise of his discretion.
The Court was not satisfied there was a significant possibility that a jury acting reasonably would have acquitted the appellant if the evidence of Stephen Roberts had been placed before it.
Orders Made
- Appeal dismissed.
Key Takeaways
- Trial counsel holds a wide discretion over the conduct of proceedings, including decisions about which witnesses to call, and appellate courts will not lightly interfere with tactical decisions made in the exercise of that discretion.
- Under the test in Regina v Birks, appellate intervention for miscarriage of justice arising from counsel's conduct requires something beyond a disagreement with strategy, such as flagrant incompetence or another cause that can be identified as having produced a miscarriage.
- In dismissing the appeal, the Court of Criminal Appeal applied the standard that fresh evidence on appeal will only support a ground of miscarriage of justice where there is a significant possibility that a reasonable jury would have acquitted had that evidence been before them.
- No miscarriage of justice arises simply because an available witness was not called, if counsel's decision not to call that witness was open to them in the circumstances and the untested evidence would not have materially altered the jury's assessment.
- Unexplained delay in raising a new evidence ground on appeal is a relevant consideration, though it did not affect the outcome here given the appeal failed on its merits.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 61(1) (sexual intercourse without consent)
Cases
- Regina v Birks (1990) 19 NSWLR 677
- Gallagher v The Queen (1985) 160 CLR 392
- Regina v Barben (1968) QWN 8