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Court of Criminal Appeal 24 March 2017

JV v R

[2017] NSWCCA 49

Sexual offences
CRIMINAL LAW CONVICTION APPEAL WHERE FAILURE SAID TO BE AN OVERSIGHT NO MISCARRIAGE OF JUSTICE APPEAL DISMISSED

Citation: JV v R [2017] NSWCCA 49
Court: NSW Court of Criminal Appeal
Date: 24 March 2017
Judges: Leeming JA, Fagan J, N Adams J

Background

The appellant was convicted at trial in March 2015 on five counts arising from sexual offences against his niece by marriage. Three counts involved aggravated sexual intercourse without consent against a child under sixteen, and two counts involved aggravated indecent assault. The offences occurred across a range of dates when the complainant was aged between approximately eight and twelve years old. The appellant was sentenced to a total effective term of five years' imprisonment with a three-year non-parole period.

The appellant appealed against conviction on a single ground: that his trial miscarried because his counsel failed to lead evidence of his good character. Trial counsel and his instructing solicitor both swore affidavits on appeal stating they had no recollection of discussing whether to call character evidence at trial.

A significant background fact shaped the appeal. A second niece, NP, was the complainant's cousin. NP had made allegations that the appellant had also indecently assaulted her during the same general period, by touching the side of her breast when she was twelve years old. The Crown had decided not to call NP at trial, and defence counsel had consistently worked to prevent her evidence from coming before the jury.

  • Whether the failure to lead good character evidence at trial caused a miscarriage of justice, entitling the appellant to have his convictions set aside.
  • Whether the failure to call character evidence was explicable as a rational forensic decision, rather than an oversight, notwithstanding counsel's lack of specific recollection.
  • Whether the appellant had lost a real chance, or a chance fairly open, of acquittal had character evidence been led.
  • Whether leave to appeal should be granted under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW), given the ground did not involve a question of law alone.

Decision

The Court granted leave to appeal but dismissed the appeal. All three judges agreed that no miscarriage of justice had been established. The assessment required was objective: whether defence counsel's conduct occasioned a miscarriage, not whether counsel could consciously recall the reasons for every decision made during trial (applying Nudd v The Queen [2006] HCA 9).

The critical finding was that defence counsel had made a clear and consistently maintained forensic decision to keep NP's evidence away from the jury. Before the first trial, counsel had formally applied to exclude NP's evidence. He later resisted the admission of evidence about the appellant's 2009 suicide attempt precisely because explaining its context would have required him to reveal NP's allegations. Throughout both the first and second trials, he adhered to that position.

Fagan J observed that the first reflex when considering good character evidence is to identify what the Crown would lead in rebuttal. Here, the answer was obvious: NP's evidence of a similar indecent assault, which N Adams J found would have been admissible under ss 97 and 101 of the Evidence Act 1995 (NSW) as tendency evidence. Putting character in issue would have opened the door to precisely the evidence counsel had spent the entire proceedings working to exclude.

N Adams J concluded that, viewed in full context, counsel's decision not to adduce character evidence was rational. The character evidence proposed on appeal related to the appellant's conduct well after the alleged offending, which further limited its likely utility. The appellant had not demonstrated that he lost a real chance, or a chance fairly open, of acquittal.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that assessing whether a trial miscarried due to counsel's conduct requires an objective evaluation, not a subjective inquiry into what counsel can recall having consciously decided (following Nudd v The Queen).
  • A forensic decision to forgo good character evidence will not constitute a miscarriage of justice where there was a rational basis for it, even if counsel cannot specifically recollect making that decision.
  • Where leading good character evidence would foreseeably have opened the door to damaging Crown rebuttal evidence, declining to raise character is capable of being a sound tactical election rather than an error.
  • Tendency evidence from another complainant alleging a similar indecent assault during the same period was identified as potentially admissible under ss 97 and 101 of the Evidence Act 1995 (NSW) to rebut good character, reinforcing the practical consequences of putting character in issue.
  • In dismissing the appeal, the Court emphasised that a different approach being taken on appeal than was taken at trial does not, of itself, establish that the trial was unfair or that a miscarriage of justice occurred.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61J(1), 61M(1)
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Criminal Appeal Rules, r 4
- Criminal Procedure Act 1986 (NSW), s 306I
- Evidence Act 1995 (NSW), ss 55, 97, 101, 112, 191

Cases
- Nudd v The Queen (2006) 162 A Crim R 301; [2006] HCA 9
- TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
- Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32
- Papakosmas v R (1999) 196 CLR 297; [1999] HCA 37
- Langelaar v R [2016] NSWCCA 143
- Alkhair v R [2016] NSWCCA 4
- Vella v R [2015] NSWCCA 148
- Ahmu v R [2014] NSWCCA 312
- ARS v R [2011] NSWCCA 266
- Matthews v R [2013] NSWCCA 187
- R v D (1996) 86 A Crim R 41
- Abou-Chabake v R (2004) 149 A Crim R 417; [2004] NSWCCA 356