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Court of Criminal Appeal 3 July 2013

Stevens v R

[2013] NSWCCA 158

Sexual offences
CRIMINAL LAW CONVICTION APPEAL SEXUAL INTERCOURSE WITHOUT CONSENT DECISION BY COUNSEL NOT TO CROSS EXAMINE COMPLAINANT ON VOIR DIRE WHETHER MISCARRIAGE OF JUSTICE OCCURRED

Citation: Stevens v R [2013] NSWCCA 158
Court: Court of Criminal Appeal, New South Wales
Date: 3 July 2013
Judge(s): Hoeben CJ at CL; McCallum J; RA Hulme J

Background

The appellant was convicted by a jury of ten sexual offences against a 19-year-old Danish backpacker following an incident in Sydney in January 2009. The charges included five counts of sexual intercourse without consent, three counts of indecent assault, and two counts of attempted sexual intercourse without consent. The central issue at trial was consent. The appellant was sentenced to nine years' imprisonment with a non-parole period of six years.

During the complainant's evidence, delivered via closed-circuit television over two days, she had a support person present from a court support service. The trial judge later informed the parties that the court officer had reported seeing the support person apparently communicating with the complainant during a break in cross-examination. This raised a concern that the complainant's evidence may have been influenced by the support person.

The appellant's trial counsel, having been made aware of this, made a deliberate decision not to cross-examine the complainant on a voir dire (a preliminary inquiry to assess the admissibility or reliability of evidence) about any such communication. The appeal centred on whether that decision amounted to an error giving rise to a material irregularity and a miscarriage of justice.

  • Whether trial counsel erred in declining to cross-examine the complainant on a voir dire regarding possible contamination of her evidence by the support person.
  • Whether trial counsel erred in not applying for a mistrial.
  • Whether either failure constituted a material irregularity in the conduct of the trial.
  • Whether any irregularity resulted in a miscarriage of justice within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW).
  • Where counsel's evidence and the appellant's account of instructions conflicted, which version should be accepted.

Decision

Hoeben CJ at CL (with McCallum J and RA Hulme J agreeing) dismissed the appeal. The court found that trial counsel, Ms Moen, had carefully considered the situation and formed a deliberate view that cross-examining the complainant on a voir dire would cause more harm than good to the defence case. Her reasoning was that doing so risked re-exposing the complainant to further questioning and potentially reinforcing her evidence, while the forensic advantage to the defence lay in exploiting the issue through submissions and argument rather than by giving the complainant another opportunity to consolidate her account.

The court heard evidence on appeal from both the appellant and his trial counsel about whether instructions had been given and advice received. The appellant contended that he had not been consulted about the decision. Ms Moen gave evidence that she had explained her reasoning and obtained his instructions. The court preferred Ms Moen's account, noting that it was detailed, consistent with contemporaneous documents she had prepared, and reflected the considered approach of an experienced practitioner.

Applying the principle from cases including Nudd v R and TKWJ v The Queen, the court confirmed that appellate intervention for counsel error is not limited to cases of "flagrant incompetence" but requires a miscarriage of justice. However, where counsel's decision rests on a recognised forensic rationale and has been made following proper consultation with the client, intervention is unlikely. Here, the court found the decision was reasoned, purposeful, and made on instructions. No material irregularity arose, and therefore no miscarriage of justice occurred.

Even if the court had found an irregularity, it concluded that no miscarriage of justice had taken place within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW).

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A deliberate decision by trial counsel not to pursue a particular line of cross-examination does not constitute a material irregularity where it is made for a recognisable forensic purpose and on proper instructions from the accused.
  • The Court of Criminal Appeal confirmed that appellate intervention for counsel error is not confined to cases of flagrant incompetence; the relevant question is always whether the error caused a miscarriage of justice.
  • Where an appellant and trial counsel give conflicting accounts of whether advice was given and instructions received, contemporaneous documents and the internal coherence of counsel's account are significant factors in resolving the conflict.
  • In dismissing the appeal, the court treated the existence of a proper forensic rationale as a powerful factor weighing against a finding that counsel's conduct was erroneous at all.
  • No miscarriage of justice arises merely because a strategic decision made at trial might, in hindsight, be viewed as open to debate, provided it was genuinely considered and made with the client's informed participation.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 6(1)

Cases
- MB v Regina [2009] NSWCCA 200
- Nudd v R [2006] HCA 9; 80 ALJR 614
- TKWJ v The Queen [2002] HCA 46; 212 CLR 124