Citation: [2001] NSWCCA 127
Court: NSW Court of Criminal Appeal
Date: 12 April 2001
Judge(s): Beazley JA, Studdert J, Sperling J
Background
The appellant, identified only as TJF, was tried before a judge and jury in the Penrith District Court in 1998 on two counts arising from alleged sexual offences against two sisters. The jury disagreed on the first count (aggravated indecent assault) but convicted the appellant on the second count (aggravated sexual intercourse without consent). He was sentenced to a minimum term of 18 months penal servitude followed by an 18-month additional term.
The alleged offending against the second complainant, CM, was said to have occurred on the night of 16 March 1996, when the appellant stayed at the family home and allegedly digitally penetrated CM while she slept. The appellant denied the offences and gave evidence that, when confronted by the complainants' parents, he offered money only because of suicidal distress, not as an admission of guilt. The complainants' parents had separately been convicted of demanding money with menaces in connection with their conduct after learning of the allegations.
The appeal against conviction raised concerns about the competence of trial counsel and the adequacy of judicial directions, particularly regarding evidence of complaint.
Legal Issues
- Whether trial counsel's conduct was incompetent and, if so, whether that incompetence caused a miscarriage of justice
- Specifically: whether competent counsel would have applied for separate trials on the two counts
- Whether trial counsel should have sought to exclude or limit evidence of an alleged admission by the appellant to the complainants' father
- Whether trial counsel should have applied for a direction limiting the use of certain evidence under s 136 of the Evidence Act
- Whether the trial judge was required to warn the jury under s 165 of the Evidence Act that complaint evidence may be unreliable, given inconsistencies between different versions of the complaints
Decision
Incompetent conduct of trial counsel. The Court found that trial counsel's handling of several aspects of the trial fell below the standard expected of reasonably competent defence counsel. The failures identified included the handling of complaint evidence and the failure to seek appropriate directions. The Court concluded that these failures, taken together, resulted in a miscarriage of justice, and this ground alone was sufficient to allow the appeal.
Separate trials. On the question of whether counsel should have applied for separate trials, the Court considered the history of the prosecution, noting that the Crown had at one stage elected to proceed on separate indictments before reverting to a joint indictment. The Court examined the risk that evidence on one count would prejudice the jury on the other. While this formed part of the broader incompetence argument, the Court's analysis addressed it in the context of the overall miscarriage finding.
The s 165 Evidence Act warning. The Court examined whether the trial judge was obliged under s 165 of the Evidence Act to warn the jury that the complaint evidence might be unreliable. Sperling J held that s 165 is directed to ways in which particular kinds of evidence may be unreliable for reasons associated with the nature of that kind of evidence, such as its hearsay character. Inconsistencies between different versions of a complaint may make the evidence unreliable, but that unreliability is not specifically a product of the evidence's hearsay character. Accordingly, s 165 did not strictly require a warning on that basis in this case. However, the Court noted that the trial judge retained a discretion to warn, and the question of whether such a warning might be required on a broader basis (as suggested in the earlier decision of R v Mayberry) was not fully argued and was left open.
Outcome. The Court allowed the appeal, quashed the conviction and sentence, and entered a verdict of acquittal. The Court did not order a retrial.
Orders Made
- Appeal against conviction allowed
- Conviction and sentence quashed
- Judgment and verdict of acquittal entered
Key Takeaways
- Failures by trial counsel across multiple aspects of a criminal trial, including the handling of complaint evidence and the failure to seek appropriate directions, can collectively constitute incompetence sufficient to produce a miscarriage of justice warranting the quashing of a conviction.
- Under s 165 of the Evidence Act, the obligation to warn a jury that evidence may be unreliable is tied to unreliability arising from the particular nature or character of that type of evidence (for example, its hearsay character), rather than from general inconsistencies that could affect any form of evidence.
- Inconsistencies between different versions of complaint evidence do not, of themselves, engage the s 165 warning obligation, because those inconsistencies are not inherent to the hearsay character of complaint evidence.
- The Court of Criminal Appeal expressly left open the broader question, raised in R v Mayberry, of whether a general warning about the unreliability of complaint evidence may be required in certain circumstances independently of s 165.
- Where a conviction is quashed for trial miscarriage arising from counsel incompetence, the Court may enter a verdict of acquittal rather than order a retrial, particularly where the appellant has already served the bulk of the sentence imposed.
Legislation and Cases Referenced
Legislation:
- Evidence Act (NSW), ss 136, 165
- Criminal Appeal Act (NSW)
Cases:
- De Jesus v The Queen (1986) 61 ALJR 1
- R v Birks (1990) 19 NSWLR 677
- Graham v The Queen (1998) 195 CLR 606
- R v Truong (1996) 86 A Crim R 188
- R v PAH (unreported, NSWCCA, 18 December 1988)
- R v Gillard (1999) 105 A Crim R 479
- R v Ali [2000] NSWCCA 177
- R v Mayberry [2000] NSWCCA 531
- R v Beattie (1996) 40 NSWLR 155
- R v Fernando [1999] NSWCCA 66
- R v Stanton (unreported, NSWCCA, 24 July 1998)
- R v Flood [1999] NSWCCA 198