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Court of Criminal Appeal 27 June 2003

REGINA v DCU

[2003] NSWCCA 173

Sexual offences
CONVICTION APPEAL INCOMPETENCE OF COUNSEL INADEQUATE DIRECTIONS UNREASONABLE AND INSUPPORTABLE.

Citation: Regina v DCU [2003] NSWCCA 173
Court: NSW Court of Criminal Appeal
Date: 27 June 2003
Judge(s): Meagher JA, Dowd J, Barr J

Background

The appellant was convicted by jury in the Sydney District Court before Downs ADCJ on one count of aggravated indecent assault and two counts of sexual intercourse with a child under sixteen years while in a position of authority. The offences involved the appellant's niece and were alleged to have occurred in January 1995, when the complainant was twelve years old and staying at the appellant's home in Oatley. The complainant did not disclose the assaults until 2000, approximately five years after the events.

At trial, the appellant denied the assaults and denied the circumstances alleged by the complainant, including a visit to a veterinary clinic on the relevant morning. He was convicted and sentenced to a fixed term of three years and six months on the first count, and six years imprisonment with a non-parole period of three years and six months on each of the remaining counts.

The appellant sought to appeal both his conviction and the severity of his sentence.

  • Whether the trial judge's summing-up adequately warned the jury of the dangers of acting on uncorroborated evidence from the complainant
  • Whether the summing-up adequately directed the jury on the significance of the complainant's delay in making her complaint and the impact of that delay on the appellant's ability to respond to the charge
  • Whether the conduct of trial counsel amounted to incompetence sufficient to constitute a miscarriage of justice
  • Whether leave to appeal against sentence should be granted

Decision

On the first ground, the Court found no misdirection and no miscarriage of justice. The summing-up, taken as a whole, included a warning about the absence of corroboration and directed the jury to analyse and scrutinise the complainant's evidence with great care. While the trial judge also reminded the jury that the law does not require corroboration, the Court considered the summing-up adequate overall. No application had been made at trial to withdraw the summing-up or discharge the jury.

On the second ground, concerning the adequacy of directions on delay in complaint, the Court was satisfied that the summing-up appropriately summarised the arguments of counsel and included a warning consistent with the principles established in Longman v R. The submission that the summing-up "watered down" earlier warnings was rejected.

On the third ground, the appellant argued that trial counsel failed to adduce evidence of an alleged statement by the complainant concerning possible abuse of her brother, and failed to raise evidence of a family inheritance dispute as a potential motive to lie. Trial counsel's affidavit, whose integrity was not challenged, explained that both omissions were deliberate forensic decisions. Counsel considered that raising the alleged abuse of the brother would be counterproductive, as it might suggest a further allegation of sexual assault against the appellant. The Court applied TKWJ v R and held that the appellant had not demonstrated any irregularity or a significant possibility that the decisions affected the outcome. At most, the appellant had shown the trial could have been conducted differently, which is not sufficient to establish incompetence of counsel.

On sentence, counsel for the appellant conceded that any error identified would not have resulted in a different sentence. The Court found no basis to conclude the sentence was inappropriate and refused leave to appeal.

Orders Made

  • Appeal against conviction dismissed
  • Application for leave to appeal against sentence refused

Key Takeaways

  • A deliberate decision by trial counsel not to pursue a particular line of argument or evidence does not constitute incompetence simply because the trial could have been conducted differently; under the test in TKWJ v R, the appellant must show the decision was an irregularity with a significant possibility of affecting the outcome.
  • In dismissing the conviction appeal, the Court confirmed that a summing-up must be assessed as a whole, and a reminder to the jury that corroboration is not legally required does not automatically undermine an earlier warning about the risks of uncorroborated evidence.
  • Where trial counsel files an unchallenged affidavit explaining the forensic reasoning behind contested decisions, that evidence carries significant weight in resisting an incompetence of counsel ground.
  • No error was established in the trial judge's directions on delay in complaint, where the summing-up addressed counsel's arguments and included a Longman-compliant warning.
  • A concession by appellant's counsel on sentence appeal that any identified error would not have produced a lesser sentence is fatal to obtaining leave to appeal.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M(1), 66C(2)

Cases
- Longman v R (1989) 168 CLR 79
- Jones v R (1997) 191 CLR 439
- TKWJ v R (2002) 76 ALJR 1579