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Court of Criminal Appeal 17 February 2009

Robert Clee v R

[2009] NSWCCA 18

Assault & violencePublic order & justice offences
CRIMINAL LAW CONVICTION APPEAL COMPETENCE OF COUNSEL DIRECTIONS TO JURY RULE 4.

Citation: Robert Clee v R [2009] NSWCCA 18
Court: New South Wales Court of Criminal Appeal
Date: 17 February 2009
Judge(s): Beazley JA, Hislop J, Harrison J

Background

The appellant was convicted in the District Court of entering a dwelling house with intent to commit a serious indictable offence (intimidation), contrary to s 111(1) of the Crimes Act 1900. The conviction arose from an incident on 8 July 2005 in which the appellant and another man forced their way into the complainant's unit at a residential block in Parramatta. Multiple neighbours witnessed the incident, and several gave evidence at trial. The appellant was sentenced to two years and six months imprisonment with a non-parole period of 20 months. He had been released to parole by the time the appeal was heard.

The appellant conducted the appeal in person. He raised three grounds of appeal, each directed at alleged trial irregularities rather than the sufficiency of the Crown's evidence against him.

  • Whether trial counsel's decision to adduce evidence of the appellant's criminal convictions and bad character constituted incompetent representation amounting to a miscarriage of justice
  • Whether the trial judge's failure to direct the jury on the permissible uses of that bad character evidence gave rise to a miscarriage of justice
  • Whether a factual error in the trial judge's summing-up, which appeared to transpose details of a February 2005 conversation to the night of the offence, caused a miscarriage of justice

Decision

On the first ground, the Court considered the well-established principles governing complaints about counsel competence. It found no basis to conclude that trial counsel's conduct fell below acceptable professional standards or that any decision to raise prior convictions or bad character caused a miscarriage of justice. The relevant High Court authorities make clear that a high threshold must be met before counsel's tactical decisions will ground a successful appeal, and that threshold was not reached here.

On the second ground, the Court found that no direction had been sought at trial regarding the permissible use of the bad character evidence. Applying Rule 4 of the Criminal Appeal Rules, which requires leave to raise grounds not taken at trial, the Court refused leave. The Court noted that the absence of any such application during the trial suggested there was no reasonable basis for concern about the fairness of the proceeding at the time.

On the third ground, the Court accepted that the trial judge may have made a slip in the summing-up by attributing to the events of 8 July 2005 a statement the appellant had made about an earlier conversation in February 2005. However, the Court was satisfied that no miscarriage of justice resulted. The jury had heard the evidence directly, was reminded shortly afterwards of the correct temporal context, and had been provided with a full transcript of the appellant's evidence at its own request. Again, no correction was sought at trial, and Rule 4 leave was refused.

Orders Made

  • Appeal dismissed

Key Takeaways

  • A conviction appeal based on counsel incompetence requires demonstration that the conduct fell below acceptable standards and caused a miscarriage of justice. Tactical decisions by counsel will not easily satisfy that threshold.
  • Rule 4 of the Criminal Appeal Rules operates as a significant procedural barrier: where no objection or request for redirection was raised at trial, the Court of Criminal Appeal requires leave to entertain a fresh ground on appeal, and will scrutinise whether the absence of any trial objection itself indicates the concern lacks substance.
  • A factual slip in a trial judge's summing-up does not automatically produce a miscarriage of justice, particularly where the jury had heard the evidence firsthand and was provided with a full transcript of the relevant testimony.
  • In dismissing all three grounds, the Court of Criminal Appeal confirmed that each alleged error must be assessed in the context of the whole trial, including what safeguards were available to the jury.
  • No error was established in the conduct of the trial, and the appeal was dismissed without any modification to the conviction or sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 111(1), 111(2), 112(2), 115A
- Criminal Appeal Act 1912 (NSW)
- Criminal Appeal Rules (NSW), Rule 4
- Evidence Act (NSW)

Cases:
- Ali v The Queen [2005] HCA 8; (2005) 214 ALR 1
- Nudd v The Queen [2006] HCA 9; (2006) 225 ALR 161
- R v Birks (1990) 19 NSWLR 677
- Seymour v R [2006] NSWCCA 206; (2006) 162 A Crim R 576
- TKWJ v R [2002] HCA 46; (2002) 212 CLR 124