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Court of Criminal Appeal 4 December 2015

BB v R

[2015] NSWCCA 308

Sexual offences
CRIMINAL LAW SEXUAL ASSAULT APPEAL AGAINST CONVICTION ALLEGED INCOMPETENCE OF COUNSEL NO EXPLANATION FOR COURSE TAKEN CONCESSIONS BY CROWN ACCEPTED

Citation: BB v R [2015] NSWCCA 308
Court: NSW Court of Criminal Appeal
Date: 4 December 2015
Judge(s): Leeming JA; Price J; R A Hulme J

Background

The appellant (identified only as BB, due to statutory non-publication requirements) was convicted after a 14-day jury trial on seven of nine counts of sexual offences against a female complainant. The offences related to events between 1993 and 2000, when the complainant was aged between six and twelve. The primary judge imposed an aggregate sentence of ten years' imprisonment with a non-parole period of six years.

BB appealed against both conviction and sentence. The sentence appeal was formally withdrawn at the commencement of the hearing. The conviction appeal proceeded on the principal ground that his trial counsel had been flagrantly incompetent, in a manner that affected the outcome of the trial.

The central complaint concerned the failure of his legal representatives to place any good character evidence before the jury. At least 19 people had been willing and able to give character evidence for BB at trial, and written references from them were ultimately used at his sentencing hearing. The jury heard nothing of his good character.

  • Whether the conduct of trial counsel amounted to flagrant incompetence within the meaning of R v Birks (1990) 19 NSWLR 677
  • Whether that incompetence gave rise to a significant possibility that it affected the outcome of the trial
  • Whether the failure to lead good character evidence, and to seek an associated jury direction, constituted such incompetence on either of two alternative factual scenarios: that written instructions were or were not given by BB not to call that evidence

Decision

The court identified that the applicable test requires more than simply pointing to a failing by trial counsel, even a serious one. Incompetence must be demonstrated to the relevant standard, and it must also be shown that there was a significant possibility the conduct affected the trial's outcome. These principles derive from the High Court decisions in TKWJ v The Queen and Nudd v The Queen, and have been applied consistently in subsequent Court of Criminal Appeal decisions.

The court framed the incompetence issue around two alternative scenarios. If BB had not given instructions to avoid calling character evidence, his legal representatives were flagrantly incompetent in declining to take any steps to put his good character before the jury. If he had given such instructions, those instructions could only have been the product of advice from his lawyers, and that advice was itself flagrantly incompetent: at no point did the former counsel or solicitor suggest that BB made an informed decision to reject advice that he should rely on his good character.

The former solicitor had initially suggested that costs were the "main issue" behind the decision. However, uncontroverted evidence showed that funds were in fact available, and the court found that the proposition that leading character evidence would have extended the trial by many days was "intrinsically improbable." The former barrister denied that he would ever have declined to call good character evidence on a purely financial basis. No written instructions of the kind described by the solicitor could be located on the file, and no explanation was given for their absence.

The Crown properly conceded that, on either factual scenario, the advice given to BB was very difficult to justify as anything other than flagrantly incompetent, and that there was a significant possibility the conviction resulted from the failure to introduce good character. The court accepted those concessions as properly made and found that this was one of the relatively extreme cases in which departure from ordinary standards of professional care by defence lawyers warranted overturning the jury's verdict.

Orders Made

  • Leave to appeal against conviction granted
  • Appeal against conviction allowed
  • Conviction and sentence quashed
  • Retrial ordered

Key Takeaways

  • The Court of Criminal Appeal confirmed that flagrant incompetence of trial counsel can ground a successful appeal against conviction, but only where two conditions are met: the incompetence reaches the required standard, and there is a significant possibility that it affected the outcome.
  • A failure to lead available good character evidence, and to seek an associated jury direction (that good character is relevant both to whether the accused committed the offence and to the credibility of the accused's evidence), can constitute flagrant incompetence in appropriate cases.
  • Where written instructions said to justify a decision are missing from the file and unexplained, and counsel's explanations are unsatisfactory or inconsistent, a court may proceed on the basis that the decision flowed from advice rather than an informed client choice.
  • Cost considerations are not a proper basis on which defence counsel can decline to adduce relevant good character evidence, particularly where the evidence is available and would attract a favourable jury direction.
  • In dismissing any suggestion that incompetence must be assessed only in extreme cases, the court reaffirmed that this category of appeal, while narrow, applies where the significance of the omitted evidence is substantial and the departure from professional standards is clear.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 578A (non-publication of identifying information)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A (aggregate sentences)

Cases:
- R v Birks (1990) 19 NSWLR 677
- TKWJ v The Queen [2002] HCA 46; 212 CLR 124
- Nudd v The Queen [2006] HCA 9; 80 ALJR 614
- Tsiakas v R [2015] NSWCCA 187