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Court of Criminal Appeal 4 June 2001

R v P S

[2001] NSWCCA 224

Also reported as 123 A Crim R 165
Sexual offences
CRIMINAL LAW APPEAL AND NEW TRIAL MISCARRIAGE OF JUSTICE CONDUCT OF LEGAL PRACTITIONERS INCOMPETENCE OF COUNSEL RELEVANT PRINCIPLES

Citation: R v P S [2001] NSWCCA 224
Court: NSW Court of Criminal Appeal
Date: 4 June 2001
Judge(s): Dowd J, Greg James J, Newman AJ

Background

The appellant was convicted in the District Court at Liverpool of sexual intercourse with a child under ten years of age, contrary to s 66A of the Crimes Act 1900 (NSW). The complainant was his eight-year-old stepdaughter. He was sentenced to imprisonment, and the jury also had before it an alternative count of aggravated indecent assault.

The appellant had originally faced similar charges relating to a second child, his other stepdaughter. The Director of Public Prosecutions severed the indictment and ultimately directed that proceedings relating to the second child not continue. Trial counsel was informed of this before the trial began.

Despite that background, counsel for the appellant at trial took a course that repeatedly introduced before the jury the allegations involving the second child, including calling her as a witness, cross-examining the treating doctor about her examination of both children, and insisting that references to the second child remain in the electronically recorded interview played to the jury. The stated rationale was to suggest a fabricated conspiracy orchestrated by the children's mother, but that proposition was never actually put to any witness.

  • Whether the conduct of trial counsel amounted to flagrant incompetence sufficient to constitute a miscarriage of justice.
  • Whether the resulting trial was so unfair as to warrant the Court of Criminal Appeal's intervention and the quashing of the conviction.

Decision

Newman AJ, with whom Dowd J and Greg James J agreed, identified the applicable principles from the leading NSW authority, Birks (1990) 19 NSWLR 677. As a general rule, an accused is bound by how counsel conducts the trial, and errors of judgment or even negligence will not ordinarily ground an appeal. However, in rare cases, conduct amounting to "flagrant incompetence" can cause a miscarriage of justice that requires appellate intervention.

The Court found that those rare circumstances arose here. Trial counsel's stated strategy was to suggest that both children had fabricated their allegations at the instigation of their mother. Critically, that suggestion was never actually put to any witness, including the mother herself. Instead, counsel's conduct had the effect of repeatedly drawing the jury's attention to allegations that the appellant had also sexually assaulted the second child, without any legitimate forensic purpose being achieved.

The Crown Prosecutor had been sufficiently concerned by these events to raise them in open court, in the absence of the jury, after the completion of the Crown case. The Court noted this was entirely appropriate and commended the prosecutor's conduct. Notwithstanding that intervention, trial counsel maintained his course. The appellant himself gave evidence by affidavit that he had left the conduct of the trial entirely to counsel, and the Court noted he was inexperienced in criminal proceedings.

Newman AJ concluded that this was one of the rare cases in which flagrant incompetence had been established, and that the appellant had been deprived of due process. The Court drew an analogy with the Privy Council's reasoning in Boodram v State of Trinidad and Tobago (unreported, 10 April 2001). Given that conclusion, the Court found it unnecessary to address the remaining grounds of appeal concerning judicial directions.

Orders Made

  • Appeal upheld.
  • Conviction quashed.
  • Sentence quashed.
  • New trial ordered.

Key Takeaways

  • Flagrant incompetence by trial counsel is an established but rare ground for appellate intervention in NSW criminal appeals, confirmed here by reference to the principles in Birks (1990) 19 NSWLR 677.
  • A stated defence strategy that is never actually pursued with the relevant witnesses, while simultaneously introducing damaging tendency-style evidence, can cross the threshold from poor judgment into flagrant incompetence.
  • Where counsel's conduct deprives an accused of due process, a miscarriage of justice exists regardless of whether the accused gave instructions that counsel claimed to be following.
  • The Court of Criminal Appeal emphasised that these cases remain rare: a bold tactical decision that fails, or ordinary errors of judgment, will not suffice to establish incompetence at this level.
  • The Crown Prosecutor's decision to raise concerns about defence counsel's conduct in open court was expressly commended by the Court as an appropriate exercise of the prosecutor's duty to justice.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 66A

Cases:
- Birks (1990) 19 NSWLR 677
- R v A R D [2000] NSWCCA 443
- Boodram v State of Trinidad and Tobago (Privy Council, unreported, 10 April 2001)