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Court of Criminal Appeal 8 October 2008

Steve v Regina

[2008] NSWCCA 231

Also reported as 189 A Crim R 68
Sexual offencesPublic order & justice offences
CRIMINAL LAW APPEAL MISCARRIAGE OF JUSTICE COMPETENCE OF COUNSEL UNSAFE AND UNSATISFACTORY VERDICT NEW TRIAL ORDERED

Citation: Steve v Regina [2008] NSWCCA 231
Court: NSW Court of Criminal Appeal
Date: 8 October 2008
Judge(s): Beazley JA; Hislop J; Price J

Background

The appellant was convicted by a District Court jury of one count of sexual intercourse without consent under s 61I of the Crimes Act 1900, and sentenced to three years imprisonment with a two-year non-parole period. The conviction arose from an alleged sexual assault at a friend's apartment, where the complainant said the appellant forced her into a bedroom and assaulted her while a third person was present in the adjoining room.

The case turned largely on credibility. The Crown case was not, on the appellant's account, particularly strong, and the trial involved disputed factual questions about what occurred in the bedroom.

The appellant appealed on the grounds that his trial miscarried due to incompetence of his solicitor at trial, errors by the trial judge in admitting prejudicial evidence, and the failure to give appropriate jury directions. He also contended the verdict was unsafe and unsatisfactory.

  • Whether the failure of the appellant's solicitor to object to irrelevant and prejudicial evidence amounted to a miscarriage of justice
  • Whether that evidence, which portrayed the appellant as violent, sexually predatory and a child molester, should have been excluded under s 137 of the Evidence Act 1995
  • Whether the trial judge was independently obliged to apply s 137 and exclude evidence where the danger of unfair prejudice outweighed probative value
  • Whether the trial judge's failure to direct the jury to disregard prejudicial material constituted a further miscarriage of justice
  • Whether the conviction was unsafe and unsatisfactory given the admission of that material in a case that was not strong for the Crown

Decision

The Court of Criminal Appeal, with all three judges in agreement, allowed the appeal and ordered a new trial.

Beazley JA (with whom Hislop and Price JJ agreed) confirmed that incompetence of trial counsel does not, of itself, warrant appellate intervention. The question is always whether the incompetence caused a miscarriage of justice. Here, the solicitor's failure to object to evidence that portrayed the appellant as violent, sexually predatory and a child molester went well beyond mere tactical judgment and crossed into territory that deprived the appellant of a fair trial.

The Court held that s 137 of the Evidence Act 1995 imposes a mandatory obligation on a trial judge to exclude evidence where the danger of unfair prejudice to the accused outweighs its probative value. The trial judge was independently bound to apply that provision regardless of whether defence counsel objected. The failure to do so meant inadmissible and highly damaging material was placed before the jury without any corrective direction.

A further concern arose from the partial playing of the appellant's recorded interview (an ERISP). The jury had already received the full transcript before the decision was made not to play certain portions. The omitted questions related to allegations of domestic violence, marital infidelity and drug use. The trial judge did not direct the jury to disregard anything they may have already read in those pages. The Court found this was another dimension of the unfairness, though it did not need to decide whether that matter alone would have required a new trial. Taken together, the accumulated errors meant the appellant lost a real and reasonable chance of acquittal, rendering the verdict unsafe and unsatisfactory.

Orders Made

  • Appeal allowed
  • Jury's verdict of conviction given on 5 February 2007 quashed
  • New trial ordered

Key Takeaways

  • Counsel incompetence does not automatically trigger appellate intervention; the operative question is whether the incompetence produced a miscarriage of justice, assessed by reference to whether the accused lost a real chance of acquittal.
  • Under s 137 of the Evidence Act 1995, excluding evidence where unfair prejudice outweighs probative value is a mandatory judicial obligation, not a discretion that can be bypassed simply because defence counsel fails to object.
  • Where a jury is exposed to evidence portraying an accused as violent, sexually predatory and a child molester in a trial for sexual assault, and no corrective direction is given, the risk of unfair prejudice is acute and the denial of a fair trial can constitute a miscarriage of justice.
  • The Court of Criminal Appeal confirmed that the combined effect of multiple trial errors, even where each individual error might not independently require intervention, can collectively render a verdict unsafe and unsatisfactory.
  • Partial use of a recorded interview at trial requires careful management: where a jury has already received a full transcript, the absence of a direction to disregard excluded material may itself contribute to an unfair trial.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61I
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Evidence Act 1995 (NSW), ss 32, 33, 55, 97, 100, 110, 137
- Evidence Regulations 2005, cl 5

Cases:
- R v Birks (1990) 19 NSWLR 677
- TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124
- R v Le [2002] NSWCCA 186; (2002) 130 A Crim R 44
- Ali v R [2005] HCA 8; (2005) 214 ALR 1
- Nudd v R [2006] HCA 9; 80 ALJR 614; 162 A Crim R 301
- Seymour v Regina [2006] NSWCCA 206; 162 A Crim R 576
- Chisari v R (No 2) [2006] NSWCCA 325
- Mouroufas v R [2007] NSWCCA 58
- Rolfe v Regina [2007] NSWCCA 155; (2007) 173 A Crim R 168
- R v Stalder [1981] NSWLR 2