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Court of Criminal Appeal 2 July 2009

Taylor v R

[2009] NSWCCA 180

Also reported as (2009) 78 NSWLR 198 200 A Crim R 342
Sexual offences
CRIMINAL LAW APPEAL AND NEW TRIAL MISCARRIAGE OF JUSTICE INCOMPETENCE OF COUNSEL CRIMINAL LAW EVIDENCE

Citation: Taylor v R [2009] NSWCCA 180
Court: NSW Court of Criminal Appeal
Date: 2 July 2009
Judge(s): Campbell JA; Latham J; Harrison J

Background

The appellant and the complainant (referred to throughout as "ABC" under a non-publication order) had been in a de facto relationship for several years and co-owned property in a Hunter Valley town. In November 2006, following the appellant's return from an interstate truck driving trip, an incident occurred at their home. ABC alleged the appellant had subjected her to a serious sexual assault.

The appellant was tried in the District Court before Hulme DCJ over four days in February 2008. The jury did not convict him of the primary charge of aggravated sexual assault but found him guilty of an attempt to commit that offence. He was sentenced to a non-parole period of four years and six months, dating from the verdict.

The appellant challenged his conviction on the ground that his trial counsel conducted the case incompetently in two respects: first, by failing to properly articulate the basis for cross-examining ABC under the sexual experience evidence provisions of the Criminal Procedure Act 1986; and second, by failing to adequately cross-examine on the DNA evidence.

  • Whether trial counsel's failure to properly articulate the grounds for admissibility of evidence under section 293(4)(b) of the Criminal Procedure Act 1986 constituted incompetence amounting to a miscarriage of justice
  • Whether counsel's conduct in making the section 293 application was capable of rational explanation on forensic grounds
  • Whether the appellant lost a real chance of acquittal as a result of that failure
  • The proper construction of the exceptions in section 293, including the meaning of "relating to" and "relationship" within section 293(4)(b)
  • The proper procedure for making an application under section 293
  • Whether the failure to cross-examine on the DNA evidence independently constituted a miscarriage of justice (this issue was ultimately not resolved separately by the Court)

Decision

The Court unanimously allowed the conviction appeal and ordered a new trial. The central issue was whether trial counsel's handling of the section 293 application deprived the appellant of a real chance of acquittal.

Section 293 of the Criminal Procedure Act 1986 generally prohibits evidence disclosing or implying that a complainant in a sexual offence proceeding has had sexual experience or engaged in sexual activity. However, section 293(4)(b) provides an exception for evidence that relates to the complainant's sexual experience or activity within a relationship with the accused. The Court found that the nature of the de facto relationship between the appellant and ABC was directly relevant to the jury's assessment of credibility and the circumstances of the alleged offence. Evidence about that relationship fell within the section 293(4)(b) exception, and the terms "relating to" and "relationship" in that exception were to be construed broadly where the material was relevant to the case.

Trial counsel had sought a ruling from the trial judge at the start of the second day of cross-examination but failed to properly identify the applicable exception or articulate why the proposed cross-examination fell within it. The Court found this failure was not capable of rational explanation on forensic grounds and constituted incompetence. As a result, the jury was denied access to the full picture of the relationship between the appellant and ABC, which Harrison J described as potentially, if not actually, misleading. The Court found a miscarriage of justice had occurred.

Because the conviction was to be quashed on the section 293 ground, the Court considered it would be artificial to separately determine the DNA ground of appeal in isolation. That issue was left unresolved. The severity of sentence ground did not require determination given the outcome on conviction.

Orders Made

  • Conviction quashed
  • New trial ordered

Key Takeaways

  • The Court of Criminal Appeal confirmed that trial counsel's failure to properly articulate an admissibility argument under section 293 of the Criminal Procedure Act 1986, where that failure was not rationally explicable on forensic grounds, can constitute incompetence sufficient to establish a miscarriage of justice.
  • Under section 293(4)(b), the categories of exception to the prohibition on sexual experience evidence are to be construed broadly where there is material genuinely relevant to the proceedings, including evidence about the nature of a relationship between an accused and a complainant.
  • The terms "relating to" and "relationship" in section 293(4)(b) carry a broad meaning, capable of encompassing evidence about the full character of a de facto relationship between the parties to a sexual assault proceeding.
  • A miscarriage of justice arises where a jury is left with an incomplete or potentially misleading picture of the relationship between an accused and a complainant because admissible evidence was excluded due to counsel's failure to properly invoke the applicable statutory exception.
  • Where the Court allows an appeal on one ground of incompetence, it may decline to separately determine a further ground of appeal if doing so would require hypothetical reasoning inconsistent with the actual outcome.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), particularly section 293
- Crimes Act 1900 (NSW), section 61J(1)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), sections 12(2) and 39
- Criminal Appeal Act 1912 (NSW)

Cases:
- TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124
- Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614
- HG v The Queen [1999] HCA 2; (1999) 197 CLR 414
- R v White (1989) 18 NSWLR 332
- R v Beserick (1993) 30 NSWLR 510
- R v Morgan (1993) 30 NSWLR 543
- R v McGarvey (1987) 10 NSWLR 632
- Dimian v R (1995) 83 A Crim R 358
- R v Birks (1990) 19 NSWLR 677
- Joye v Beach Petroleum NL (1996) 67 FCR 275
- Oceanic Life Ltd v Chief Commissioner of Stamp Duties (NSW) [1999] NSWCA 416
- Law Society of New South Wales v Bruce (1996) 40 NSWLR 77
- R v Henning (NSWCCA, 11 May 1990, unreported)
- R v Warner (NSWCCA, 7 May 1997, unreported)