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1
Court of Criminal Appeal 12 January 2018

White v R

[2018] NSWCCA 1

Sexual offences
CRIMINAL LAW FARMER ON REMOTE PROPERTY FEMALE BACKPACKER FARM WORKER

Citation: White v R [2018] NSWCCA 1
Court: Court of Criminal Appeal, NSW
Date: 12 January 2018
Judges: Hoeben CJ at CL, Davies J, Bellew J

Background

The appellant was a farmer living alone on a remote property in far north-western New South Wales. He engaged a young German backpacker, then aged around 19, to work on his farm in late 2013. The alleged offences occurred on 27 December 2013 when, during what began as a hug after lunch, the appellant engaged in a series of sexual acts culminating in digital penetration of the complainant's vagina.

Following the incident, the complainant fled the property on a quad bike to a nearby hotel, where she contacted a German-speaking acquaintance before attending the police station to make a statement. She was observed to be in evident distress both at the hotel and during the taking of her statement.

The appellant was tried before Judge Lerve and a jury of 12. He was convicted on all four counts: one of sexual intercourse without consent and three of indecent assault. He was sentenced to a total of three years' imprisonment with a non-parole period of 18 months. He then applied to the Court of Criminal Appeal for leave to appeal against his conviction.

  • Whether a miscarriage of justice occurred because trial counsel failed to call the appellant to give evidence, failed to take adequate instructions on whether he wished to give evidence, and failed to advise him of the consequences of not testifying.
  • Whether the trial judge erred in permitting the Crown Prosecutor to make a submission to the jury that invited reasoning amounting to a reversal of the onus of proof.

Decision

Ground 1: Incompetence of trial counsel

The Court considered three affidavits filed on the appellant's behalf, including one from the appellant himself asserting he was not told of his right to give evidence. His trial counsel gave a contrary account, stating he had advised the appellant of his right to give evidence but formed the view that calling him was not in his interests, given the appellant's cognitive and memory deficits and the significant credibility risks his evidence would create. The Court found that the decision not to call the appellant was one a competent barrister could rationally make in the circumstances.

Crucially, the Court also considered whether the conviction was inevitable even if the appellant had given evidence. Given the complainant's credibility had been extensively tested in cross-examination, the DNA evidence, the complaint evidence, and the appellant's own silences when cautioned, the Court concluded that calling the appellant would not have produced a different result. No miscarriage of justice was established on this ground.

Ground 2: Crown Prosecutor's address and reversal of onus

The defence raised a complaint, for the first time on appeal, that the Crown Prosecutor's address to the jury invited reasoning amounting to a reversal of the onus of proof, by drawing attention to the absence of a suggested motive for the complainant to lie. Because no objection or application was made during the trial, Rule 4 of the Criminal Appeal Act applied, requiring the Court to consider whether leave should be granted to raise the ground. The Court held that nothing the Crown Prosecutor said actually invited any reversal of the onus. The complainant's credibility was squarely in issue, and the Crown was entitled to address it. The Court refused leave and rejected this ground.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A trial counsel's decision not to call an accused to give evidence will not constitute a miscarriage of justice where the decision was one a competent barrister could rationally make, particularly where the accused had cognitive and memory deficits posing credibility risks.
  • Even where arguably deficient advice about giving evidence is established, an appeal will still fail if the conviction was inevitable: the Court assessed whether, on the whole of the evidence, a different result would have been reached had the accused testified.
  • Under Rule 4 of the Criminal Appeal Act 1912 (NSW), leave is required to raise a ground on appeal that was not the subject of an objection at trial. The Court will refuse leave where no miscarriage of justice is demonstrated.
  • A Crown Prosecutor addressing the jury on a witness's credibility does not automatically invite a reversal of the onus of proof. The Court of Criminal Appeal confirmed that such comment is permissible where credibility is genuinely in issue, provided it does not directly invite the jury to ask "why would she lie?" as a path to accepting the witness's account.
  • The principles from R v Birks (1990) and subsequent authorities establish that a miscarriage may arise from "why would she lie?" reasoning only where the summing-up lacks full, firm and clear directions on the onus of proof, including a direction that the accused bears no onus to prove a motive to fabricate.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A
- Criminal Appeal Act 1912 (NSW), Rule 4
- Evidence Act 1995 (NSW)
- Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW)

Cases
- Azzopardi v R (2001) 205 CLR 50
- Brown v R [2008] NSWCCA 306
- Doe v R (2008) 187 A Crim R 328
- Kho v R [2012] NSWCCA 71
- MB v R [2009] NSWCCA 200
- Mraz v The Queen (1955) 93 CLR 493
- Nudd v The Queen [2006] HCA 9
- Palmer v The Queen (1998) 193 CLR 1
- R v Birks (1990) 19 NSWLR 677
- R v McLean (2001) 121 A Crim R 484
- R v Smith [1999] NSWCCA 126
- R v Szabo (2000) 112 A Crim R 215
- South v R [2007] NSWCCA 117
- TKWJ v The Queen (2002) 212 CLR 124