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Court of Criminal Appeal 20 December 2013

Outram v R

[2013] NSWCCA 329

Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION SEXUAL ASSAULT APPLICATION FOR EXTENSION OF TIME INCOMPETENCE OF COUNSEL EXTENSION OF TIME REFUSED

Citation: Outram v R [2013] NSWCCA 329
Court: NSW Court of Criminal Appeal
Date: 20 December 2013
Judges: Leeming JA (principal judgment), Johnson J and Hall J (agreeing)

Background

The applicant was convicted by a jury on four charges of sexual assault following a three-day trial in the District Court at Gosford in March 2011. He was sentenced to five years and six months imprisonment with a non-parole period of three years. By the time his application was heard by the Court of Criminal Appeal, he had already served more than 32 of the 36 months of his minimum custodial period.

The application for leave to appeal was not filed until June 2013, more than two years after sentencing. The applicant offered several explanations for the delay, including discouraging advice from post-trial counsel, health problems, movement between correctional facilities, and procedural difficulties obtaining transcripts and legal aid. No medical evidence was provided to support the health claims.

The underlying facts disclosed a strong Crown case. The complainant gave detailed evidence of a violent sexual assault, supported by physical evidence including bruising consistent with her account, clothing found in a condition consistent with forcible removal, and a triple-zero call capturing the applicant using abusive language.

  • Whether the applicant was entitled to a substantial extension of time to file his appeal, given a delay of over two years
  • Whether trial counsel's failure to call good character witnesses amounted to incompetence causing a miscarriage of justice
  • Whether other aspects of the conduct of the defence (cross-examination, evidence from the applicant, and content of the police interview) were so deficient as to constitute incompetent advocacy

Decision

On the extension of time question, Leeming JA confirmed that the court must weigh the length and explanation for the delay against the strength of the proposed grounds of appeal and the broader interests of the administration of justice. The delay here was substantial and the explanation unsatisfactory, meaning the applicant needed to demonstrate sufficiently arguable grounds of appeal to obtain the extension.

The central factual dispute concerned whether trial solicitor Mr Quinn and barrister Mr O'Sullivan had advised the applicant that he "could not be convicted" and therefore needed no character witnesses. The applicant and his fiancée gave affidavit evidence to this effect, but both the solicitor and barrister flatly denied it. After cross-examination of all four witnesses, Leeming JA preferred the evidence of the legal practitioners and rejected the applicant's account. His Honour noted that the advice as the applicant described it was "inherently unlikely" and that it had been the responsibility of the applicant's 2013 solicitor to probe that account more carefully.

With the primary factual foundation rejected, what remained was an insufficiently explained failure to call character evidence and various criticisms of the way the defence was conducted. Leeming JA noted that the applicable test requires more than showing counsel was negligent or remiss; the conduct must not be explicable as a legitimate tactical or forensic choice. On that test, each of the additional complaints about cross-examination, the applicant's own evidence, and the ERISP content fell short of raising a sufficiently arguable miscarriage of justice.

Leeming JA indicated he would have been prepared to grant the extension had the applicant's sworn version of events been accepted. However, on the facts as actually found, the proposed grounds were characterised as weak but not hopeless. Weighing all relevant considerations, including the delay, the strength of the Crown case (acknowledged by both parties as strong), and the insufficiency of the proposed grounds, the extension of time was refused.

Orders Made

  • Extension of time to appeal refused.

Key Takeaways

  • A substantial and inadequately explained delay in filing a conviction appeal will not be excused unless the proposed grounds of appeal are sufficiently arguable to justify the extension in the interests of justice. Weakness alone does not bar an appeal, but it weighs heavily against granting extra time.

  • Where an applicant alleges incompetent counsel, the claim must be grounded in credible evidence. Contested factual assertions about what legal advisers said or did will be tested by cross-examination, and courts will not accept inherently improbable accounts without proper foundation.

  • The test for a miscarriage arising from counsel incompetence requires more than establishing that counsel was "negligent or otherwise remiss." The conduct must not be explainable as a legitimate forensic choice, applying the standard confirmed in TKWJ v The Queen (2002) 212 CLR 124 and Nudd v The Queen (2006) 162 A Crim R 301.

  • Refusing an extension, the Court of Criminal Appeal was careful to observe that every person is entitled to a fair trial regardless of how strong the Crown case may appear. The strength of the Crown case was relevant not to that entitlement but to the exercise of discretion on the extension of time application.

  • Character evidence issues in criminal proceedings have complex procedural consequences. In this case, the failure to call character witnesses formed the primary ground of the appeal, yet without credible evidence that counsel had misinformed the applicant, the omission was insufficiently explained to support an arguable miscarriage claim.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW)
- Criminal Appeal Rules (NSW)

Cases
- TKWJ v The Queen [2002] HCA 46; 212 CLR 124
- Nudd v The Queen [2006] HCA 9; 162 A Crim R 301
- Ali v The Queen [2005] HCA 8; 214 ALR 1
- R v Birks (1990) 19 NSWLR 677
- Darwiche v R [2011] NSWCCA 62; 209 A Crim R 424
- Monteiro v R [2011] NSWCCA 113
- PFC v R [2011] NSWCCA 275
- KLM v Western Australia [2009] WASCA 73; 194 A Crim R 503
- Matthews v R [2013] NSWCCA 187
- Winter v R [2013] NSWCCA 231
- Ngo v R [2013] NSWCCA 142
- Abdul v R [2013] NSWCCA 247
- Alpha v R [2013] NSWCCA 292
- Bourke v R [2013] NSWCCA 293
- Golossian v R [2013] NSWCCA 311
- Sinkovich v Attorney General for NSW [2013] NSWCA 383