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Court of Criminal Appeal 24 May 2013

Kizildag v R

[2013] NSWCCA 125

Assault & violenceFraud & dishonestyTheft & property
CRIMINAL LAW APPEAL INCOMPETENCE OF COUNSEL WHETHER MISCARRIAGE OF JUSTICE WHETHER FAIR CHANCE OF ACQUITTAL LOST

Citation: Kizildag v R [2013] NSWCCA 125
Court: NSW Court of Criminal Appeal
Date: 24 May 2013
Judges: Macfarlan JA, Fullerton J, Adamson J (all agreeing)

Background

The appellant was convicted by a District Court jury of two offences: aggravated taking with assault and driving a motor vehicle (s 154C(2) Crimes Act 1900), and armed robbery (s 97(1) Crimes Act 1900). The charges arose from two incidents on the same morning in May 2010. In the first, a woman was threatened with a knife at a car park and her Commodore station wagon was taken. In the second, a man entered a bakery, ordered a drink, then grabbed an employee's handbag and produced a knife when two employees tried to stop him.

The Crown's case rested substantially on DNA evidence linking the appellant to the stolen car and the handbag, as well as eyewitness testimony. One bakery employee, Ms Ly, identified the appellant in a photo identification array at 90 to 95 percent confidence. Other witnesses, including the car owner, did not select anyone from identification arrays.

At trial, the appellant gave evidence denying involvement in both offences. He claimed to have found the car abandoned the following day and driven it to a medical appointment. On appeal, he abandoned all nine original grounds and pressed a single amended ground: that his trial counsel's incompetence occasioned a miscarriage of justice.

  • Whether trial counsel's failure to cross-examine Ms Ly about discrepancies in her identification evidence amounted to incompetence.
  • Whether that alleged incompetence could have had no reasonable explanation, such that a miscarriage of justice occurred.
  • Whether the conduct of the trial denied the appellant a fair chance of acquittal.

Decision

The sole ground of appeal was that trial counsel acted incompetently, specifically by failing to cross-examine Ms Ly about her identification of the appellant in the photo array and by omitting to challenge certain discrepancies in her description of the offender. The Court applied the principles from TKWJ v The Queen and Nudd v The Queen, which require an appellant to establish both that counsel's conduct had no reasonable explanation and that it resulted in a miscarriage of justice. The threshold is high: if a reasonable explanation for counsel's conduct exists, the inquiry ends there.

Adamson J examined the trial record in detail and found that trial counsel had, in fact, elicited considerable material through cross-examination of Ms Ly that was capable of undermining the reliability of her identification. Counsel explored the limited opportunity Ms Ly had to observe the offender, the circumstances of the struggle, and features of the offender's appearance. The Court accepted that these steps formed a coherent basis for the closing address argument that her identification was unreliable.

On the specific omissions complained of (including the failure to press Ms Ly on hair colour discrepancies and certain identification parade matters), the Court found that reasonable explanations existed for each. For instance, trial counsel's decision to highlight the eye colour discrepancy in closing, rather than a longer list of inconsistencies, reflected a legitimate advocacy choice: a single powerful point can carry more weight with a jury than a catalogue of lesser ones. The Court noted that the obviousness of the hair colour discrepancy meant counsel could safely leave that for the jury to assess without explicit direction.

The Court concluded that, because reasonable explanations existed for every aspect of counsel's conduct that was said to constitute incompetence, there was no basis for finding a miscarriage of justice warranting the Court's intervention.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • Under the principles in TKWJ and Nudd, an incompetence-of-counsel ground requires the appellant to show both that counsel's conduct had no reasonable explanation and that a miscarriage of justice resulted. If a reasonable explanation exists, the inquiry ends.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the art of jury advocacy includes selection: a deliberate choice to emphasise one powerful discrepancy over several lesser ones can constitute a reasonable forensic strategy, not incompetence.
  • Failing to cross-examine a witness on every available inconsistency does not, without more, amount to incompetence. The critical question is whether the overall conduct of the defence could have been rationally explained by a competent advocate.
  • Where an eyewitness's physical description of an offender diverges from the defendant's actual appearance in ways obvious to the jury, a decision not to make that point explicitly in cross-examination or closing address may be justified on the basis that the jury can draw its own inference.
  • No miscarriage of justice was established on the facts, and the conviction was left undisturbed.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(1) (armed robbery) and s 154C(2) (aggravated taking with assault and driving a motor vehicle)
- Criminal Appeal Act 1912 (NSW), s 6(1)

Cases:
- Nudd v The Queen [2006] HCA 9; 80 ALJR 614
- TKWJ v The Queen [2002] HCA 46; 212 CLR 124