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Court of Criminal Appeal 15 December 2014

Ahmu v R; Director of Public Prosecutions v Ahmu

[2014] NSWCCA 312

Sexual offencesPublic order & justice offences
CRIMINAL LAW APPEAL AGAINST CONVICTION MISCARRIAGE OF JUSTICE COMPETENCE OF COUNSEL INSTRUCTIONS TO CROSS WHETHER THE CROSS

Citation: Ahmu v R; Director of Public Prosecutions v Ahmu [2014] NSWCCA 312
Court: Court of Criminal Appeal, New South Wales
Date: 15 December 2014
Judge(s): Basten JA; Adams J; Fullerton J

Background

The offender was convicted by jury of 15 counts of sexual intercourse without consent and two counts of indecent assault, all committed against the complainant over a single night in August 2010. The sentencing judge imposed an aggregate term of seven years' imprisonment with a four-year non-parole period.

At trial, the offender's counsel cross-examined the complainant about allegations she had made in 2009 in an apprehended violence order application, including that the offender had expressed a sexual interest in children. The purpose was to suggest those earlier allegations were fabricated and thereby undermine her credibility. The strategy unravelled when the prosecution moved to subpoena counselling records that corroborated the complainant's account, and the offender then admitted to his counsel that the conversations had in fact occurred. The trial judge directed the jury to disregard the challenge to the complainant's credibility.

Two appeals followed. The offender sought leave to appeal against his convictions on the ground that counsel's conduct at trial had caused a miscarriage of justice. The Director of Public Prosecutions separately appealed the sentence as manifestly inadequate.

  • Whether trial counsel's cross-examination of the complainant on the fabrication allegation, and counsel's subsequent failure to apply for a discharge of the jury, amounted to incompetence giving rise to a miscarriage of justice
  • Whether an affidavit from the offender's trial counsel was admissible on the conviction appeal, and what role counsel's reasons for acting play in assessing a miscarriage of justice claim
  • Whether the sentence of seven years with a four-year non-parole period was manifestly inadequate having regard to the totality of the offending and the standard non-parole period
  • Whether, even if the sentence were inadequate, the Court should exercise its residual discretion to decline to intervene

Decision

Conviction appeal dismissed. The Court unanimously held that the cross-examination, while fraught with risk, was an available forensic strategy with a rational basis. The attempt to limit the damage once the offender admitted the truth of his earlier statements was also a legitimate response in the circumstances. No sound basis for a discharge application existed, so the failure to seek one did not demonstrate incompetence. The Court concluded that no miscarriage of justice had occurred.

Admissibility of trial counsel's affidavit. Basten JA held, with Fullerton J declining to express a concluded view, that the focus in a miscarriage of justice inquiry should remain on the objective features of the trial process. On that approach, the affidavit added nothing beyond what could already be inferred from the conduct of the trial, and should not be admitted. Adams J took a different view: because trial counsel was following the offender's instructions (which had been given under the misapprehension that counsel was obliged to withdraw if the offender changed his account), the affidavit was relevant to understanding the objective circumstances. Adams J nevertheless concluded that the mistaken advice was inconsequential, because once the fabrication allegation had been raised, it was likely the jury would eventually learn of its falsity regardless. All judges agreed on dismissal of the conviction appeal.

Crown sentence appeal allowed. Adams J, with Fullerton J agreeing, found the sentence manifestly inadequate. The sentencing judge had either underestimated the objective seriousness of the offending or failed to give proper weight to the standard non-parole period. The offending occurred across an entire night within a domestic violence context and involved 17 separate counts, yet the aggregate sentence did not reflect the totality of that criminality.

Residual discretion. The Court declined to exercise its discretion to withhold intervention. The extent to which the sentence fell short of an appropriate outcome, combined with the need to do justice to a victim of domestic violence and to reflect the importance of denunciation, required resentencing.

Orders Made

  • Leave to appeal against conviction granted; extension of time granted; appeal against conviction dismissed
  • Crown appeal against sentence allowed
  • The sentences were restructured by varying the commencement dates of individual counts to increase accumulation, resulting in:
  • A non-parole period of 6 years and 6 months commencing 6 June 2012
  • A head sentence of 9 years and 6 months
  • Earliest parole eligibility date: 5 December 2018

Key Takeaways

  • A conviction appeal based on incompetence of counsel requires demonstration of a miscarriage of justice, not merely that the forensic strategy chosen was risky or ultimately counterproductive.
  • In assessing whether counsel's conduct caused a miscarriage, the Court of Criminal Appeal confirmed that the primary focus is on the objective features of the trial process. The subjective reasons behind counsel's decisions are relevant only where they explain an objective feature that establishes or discounts a miscarriage.
  • Where a sentencing judge fails to properly reflect the standard non-parole period or underestimates the objective seriousness of multiple serious sexual offences, the resulting sentence may be manifestly inadequate even if each individual count sentence appears within range.
  • Residual discretion to decline interference with an inadequate sentence will not readily be exercised where the shortfall is substantial and the offending involves domestic violence, given the sentencing purposes of denunciation and justice to the victim.
  • Delay in providing a judgment on sentence to parties is unacceptable: the Court noted that a six-month delay in delivering the written reasons was a matter of concern and that the Registry should have taken steps to prevent further delay once the reason for that delay (judicial leave) became known.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61I (sexual intercourse without consent), 61L (indecent assault)
- Criminal Appeal Act 1912 (NSW), ss 5, 5D, 6
- Criminal Appeal Rules, rr 3B, 4
- Criminal Procedure Act 1986 (NSW), s 159
- New South Wales Barristers' Rules, rr 5, 12, 27, 78

Cases:
- Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
- House v The King (1936) 65 CLR 499
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Nudd v R [2006] HCA 9; 80 ALJR 614
- R v Baker [2000] NSWCCA 85
- R v Birks (1990) 19 NSWLR 677
- R v Ferrer [2008] NSWCCA 104
- R v Lee [2014] NSWCCA 78
- R v Mereb; R v Younan [2014] NSWCCA 149