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Court of Criminal Appeal 13 September 2000

Regina v T.K.W.J

[2000] NSWCCA 246

Sexual offences

Citation: Regina v T.K.W.J [2000] NSWCCA 246
Court: New South Wales Court of Criminal Appeal
Date: 13 September 2000
Judge(s): Sheller JA; James J; Adams J

Background

The appellant was convicted in the District Court before Viney DCJ and a jury on two counts of aggravated indecent assault and one count of an aggravated act of indecency under the Crimes Act. The alleged offences were committed against a boy who was approximately 12 years old at the time, in late 1995 and early 1996, while the appellant was in a domestic relationship with the boy's mother.

The prosecution case relied substantially on the complainant's evidence. A complicating feature was that the complainant had, under sustained pressure from his mother on a train journey, said he had been lying about the allegations, only to later maintain the allegations were true. The complainant's younger sister had also separately alleged sexual misconduct by the appellant, and evidence of those allegations was admitted at trial.

The appellant challenged his conviction on appeal, contending primarily that his trial counsel's failure to object to the admission of the sister's evidence constituted a miscarriage of justice.

  • Whether trial counsel's failure to seek a ruling on the admissibility of the sister's evidence amounted to incompetence resulting in a miscarriage of justice
  • Whether the sister's evidence would, or likely would, have been excluded under section 135 of the Evidence Act 1995 had an objection been made
  • Whether the failure to exclude that evidence prevented the appellant from adducing character evidence, thereby depriving him of a real chance of acquittal
  • Whether, taken overall, the appellant received a fair trial

Decision

The majority (Sheller JA and James J) dismissed the appeal. Their Honours were not persuaded that the appellant had undergone an unfair trial or had a lesser chance of acquittal than he would have had if the trial had proceeded as defence counsel had anticipated. James J's reasons, with which Sheller JA agreed, formed the basis of the majority's conclusion.

Adams J dissented. His Honour considered that trial counsel's failure to seek a ruling on the admissibility of the sister's evidence was more than a mere error of judgment. Adams J reasoned that, had an objection been made, the decision in Wheeler and general principles would almost certainly have required the trial judge to exclude the sister's evidence under section 135 of the Evidence Act 1995.

Adams J further reasoned that the exclusion of the sister's evidence would have opened the door to the appellant adducing character evidence, which was not called because it would have invited cross-examination on the sister's allegations. In his view, this chain of events meant that potentially decisive evidence was withheld from the jury's consideration, constituting a miscarriage of justice. Adams J would have allowed the appeal and ordered a new trial.

The majority, however, did not accept that this combination of failures had produced an unfair trial or a materially worse outcome for the appellant, and the conviction was upheld.

Orders Made

  • Appeal dismissed (by majority)

Key Takeaways

  • A majority of the Court of Criminal Appeal held that trial counsel's failure to object to the admission of a sibling complainant's evidence did not result in a miscarriage of justice on the facts of this case.
  • Adams J, dissenting, applied the principle from Ignatic (1993) 68 A Crim R 333 that the relevant question is whether counsel's error was of such a nature, in the circumstances, as to have led to a miscarriage of justice, not merely whether the conduct was negligent or involved an error of judgment.
  • Where evidence of a potentially decisive kind is withheld from the jury's consideration as a result of counsel's incompetence, a miscarriage of justice may be established even without a finding of "flagrant incompetence" in the strict sense from Birks (1990) 19 NSWLR 677.
  • The admissibility of tendency or similar-fact evidence from a sibling complainant engaged section 135 of the Evidence Act 1995 and, on Adams J's analysis, the test from Hoch v The Queen, requiring the trial judge to consider whether the evidence should be excluded in the exercise of discretion.
  • In divided appeals of this kind, the majority's dismissal of the conviction appeal is the operative outcome, and the dissent, while articulating a competing legal analysis, does not alter the result.

Legislation and Cases Referenced

Legislation:
- Crimes Act (NSW), sections 61M(1) and 61O(1)
- Evidence Act 1995 (NSW), section 135

Cases:
- Birks (1990) 19 NSWLR 677
- Ignatic (1993) 68 A Crim R 333
- Hoch v The Queen (cited in the judgment)
- Wheeler (cited in the judgment)
- D (1996) 86 A Crim R 41