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Court of Criminal Appeal 24 June 2014

Herbert v R

[2014] NSWCCA 105

Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION UNREPRESENTED APPELLANT INCOMPETENCE OF COUNSEL CONSCIOUSNESS OF GUILT PROSECUTION DISCLOSURE

Citation: Herbert v R [2014] NSWCCA 105
Court: NSW Court of Criminal Appeal
Date: 24 June 2014
Judges: Gleeson JA, Bellew J, Hamill J (judgment delivered by Hamill J)

Background

The appellant was convicted by a jury of aggravated sexual assault following an incident alleged to have occurred in December 2008 on the Central Coast. The prosecution case was that the appellant drove the complainant to a bushland area under the pretence of giving her a lift home, sexually assaulted her, and returned her to the hotel where they had been drinking together.

The prosecution case rested primarily on the complainant's evidence, supported by DNA evidence, CCTV footage, medical evidence of injuries, witness accounts of the complainant's distress, and statements made by the appellant to police that the prosecution characterised as lies told out of a consciousness of guilt. The appellant had also sent text messages to family members approximately two months after the incident stating "I think I did it."

At trial, the appellant was represented by counsel. His defence was twofold: first, that he was mentally ill at the time and not criminally responsible; and second, that any sexual activity was not without consent. He received a sentence of seven years' imprisonment with a non-parole period of three and a half years. He appealed against conviction only, appearing unrepresented before the Court of Criminal Appeal.

  • Whether the trial judge erred in his handling of the DNA evidence presented to the jury
  • Whether the jury was denied relevant evidence concerning the appellant's medication and its effects on his capacity and memory
  • Whether the trial ought to have been aborted or a mistrial declared because the appellant's mental state rendered him unable to properly instruct counsel
  • Whether the trial judge erred by excluding evidence of inconsistencies in prosecution witness statements
  • Whether failures by police and the Crown to tender certain evidence (DNA testing of exhibits, CCTV footage, and phone records) rendered the verdict unreasonable
  • Whether, even if errors were established, a substantial miscarriage of justice had occurred within the meaning of section 6 of the Criminal Appeal Act 1912 (NSW)

Decision

The Court granted leave to extend time for the appeal and, where necessary, leave to appeal, given the appellant's unrepresented status and the significance of one particular issue. However, it dismissed the appeal on all grounds.

On the ground concerning the appellant's mental state and ability to instruct counsel during the trial, the Court acknowledged that trial counsel had made a significant error. Specifically, counsel had introduced the appellant's incriminating statements to police in a way that handed the prosecution a consciousness-of-guilt argument it might not otherwise have been able to run as effectively. Despite acknowledging this error, the Court noted that no formal ground of incompetence of counsel had been pressed. The appellant had been offered the opportunity before the Registrar to amend his grounds to include such a claim but had declined, preferring not to delay the hearing date.

On the remaining grounds, the Court found no error of the kind alleged. The DNA evidence was properly before the jury, the medication evidence had been explored at trial through expert witnesses, and there was no demonstrated failure by the prosecution to tender material that would have affected the outcome. The Court was satisfied that, taken together, the grounds did not establish any substantial miscarriage of justice.

Applying the proviso in section 6 of the Criminal Appeal Act, the Court concluded that conviction was inevitable on the evidence. The prosecution case was characterised as extremely strong, supported by immediate complaint evidence, medical evidence of injury, DNA evidence, CCTV footage placing the parties together, witness observations of the complainant's distress and dishevelled appearance, and the appellant's own admissions of deliberate lying to police. The neurological and psychiatric evidence rejecting the mental illness defence was also described as forceful.

Orders Made

• Grant leave to extend the time in which to appeal
• Grant leave to appeal
• Dismiss the appeal

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a significant error by trial counsel does not automatically warrant a new trial, particularly where no formal ground of counsel incompetence has been raised and the appellant declined the opportunity to amend grounds to include such a claim.

  • The proviso under section 6 of the Criminal Appeal Act 1912 (NSW) permits a court to dismiss an appeal even where a ground is established, provided no substantial miscarriage of justice has occurred. The Court applied this proviso after concluding that conviction on the evidence was inevitable.

  • Where a prosecution case is supported by DNA evidence, immediate complaint, medical evidence of injury, CCTV footage, and the accused's own admissions of lying, a court may find the overall case so overwhelming that errors at trial do not produce a miscarriage of justice.

  • Consciousness of guilt directions can arise from an accused's own lies to police, particularly where the accused has conceded in cross-examination that those lies were deliberate.

  • An unrepresented appellant on a criminal appeal will be granted appropriate procedural accommodation, including extended time to appeal, but the substantive strength of the prosecution case remains the central consideration when applying the proviso.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 6
- Criminal Appeal Rules 1970 (NSW)
- Criminal Procedure Act 1986 (NSW)

Cases:
- Ali v The Queen [2005] HCA 8; (2005) 79 ALJR 662
- Grey v The Queen [2001] HCA 65; (2001) 184 ALR 593
- Nudd v The Queen [2006] HCA 9
- R v Birks (1990) 19 NSWLR 677
- R v Ensor [1989] 1 WLR 497
- R v Esposito (1998) 45 NSWLR 442
- R v Hopkins [2004] NSWCCA 105
- R v Lewis [2001] NSWCCA 345
- R v Mawson (Supreme Court NSW, 11 November 1966, unreported)
- R v Murray; R v Bates (District Court NSW, 6 April 1992, unreported)
- R v Stranger (Court of Criminal Appeal NSW, 28 June 1989, unreported)
- TKWJ v The Queen [2002] HCA 46; 212 CLR 124