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Court of Criminal Appeal 13 March 2020

Biggers v R

[2020] NSWCCA 22

Sexual offences

Citation: Biggers v R [2020] NSWCCA 22
Court: NSW Court of Criminal Appeal
Date: 13 March 2020
Judges: McCallum JA; Adamson J; Beech-Jones J

Background

The appellant was tried by judge alone in the District Court on seven counts of sexual offences alleged to have been committed against two sisters, JL (aged 17) and HL (aged 16), during a period when they accompanied him on interstate truck driving trips. The appellant, a long-haul truck driver, was known to the sisters' family and had come to be called "Uncle Phil." He was acquitted on most counts but convicted of indecent assault against JL (count 1) and aggravated sexual intercourse without consent against HL (count 3).

The appellant was tried jointly with his co-accused girlfriend, who faced a single charge of aiding and abetting one of the alleged offences against HL. Because that charge related to a count on which the appellant was acquitted, the co-accused was also acquitted.

The appellant appealed against both convictions, arguing that trial counsel's failure to raise a geographical jurisdictional issue on count 1 resulted in a miscarriage of justice, and that both convictions were unreasonable and unsupported by the evidence.

  • Whether trial counsel's failure to dispute the geographical jurisdictional nexus between count 1 (indecent assault) and the State of New South Wales constituted a miscarriage of justice.
  • Whether the conviction on count 1 was unreasonable or unable to be supported having regard to the evidence.
  • Whether the conviction on count 3 (aggravated sexual intercourse without consent against HL) was unreasonable or unable to be supported having regard to the evidence.

Decision

Ground 1: Jurisdictional nexus and alleged incompetence of trial counsel

Count 1 alleged that the indecent assault occurred at a truck stop between Yass and Goulburn. However, evidence at trial made it arguable that the incident may have occurred during a different leg of the trip, potentially in Victoria rather than New South Wales. Trial counsel raised the geographical nexus issue for count 3 (which also involved a Melbourne trip) but not for count 1. The Court examined whether there was a rational explanation for that forensic choice.

The Court found that there was a rational tactical basis for counsel's approach. Disputing the nexus on count 1 would have required counsel to contest the complainant JL's account of where the offence occurred, which would potentially have enhanced her credibility before the trial judge and risked strengthening the related count 2 allegation. Because the defence to both counts concerning JL was that the criminal acts simply did not happen, disputing the geographic detail of count 1 could have undermined the overall defence strategy. The Court therefore rejected the miscarriage of justice ground.

Ground 2: Unreasonable verdict on count 1

The Court accepted the trial judge's assessment that JL was an honest witness. JL's account of the indecent assault was supported by tendency evidence and was consistent with the chronology of events established by call charge records, road toll records, and other documentary evidence. While the evidence cast some doubt on the precise location JL identified, that doubt did not rise to the level of creating a significant possibility that an innocent person had been convicted. Ground 2 was rejected.

Ground 3: Unreasonable verdict on count 3

All three judges agreed that the conviction on count 3 was also reasonably open on the evidence. The Court found no basis to disturb the trial judge's findings. Ground 3 was rejected.

Orders Made

  • Time within which the appeal could be commenced extended to 19 September 2019.
  • Leave to appeal granted pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW).
  • Appeal dismissed.

Key Takeaways

  • A failure by trial counsel to raise a jurisdictional argument does not automatically constitute a miscarriage of justice. Where a rational tactical explanation exists for the omission, the Court will not characterise the approach as incompetent.
  • The Court's analysis confirms that the assessment of alleged trial counsel incompetence is highly context-dependent: the forensic interplay between counts on an indictment is a legitimate reason for choosing not to pursue an otherwise available argument.
  • In dismissing all three grounds, the Court of Criminal Appeal applied the orthodox principle that a verdict is unreasonable only where there is a significant possibility that an innocent person has been convicted, not merely because alternative findings were open.
  • Credibility findings made at a judge alone trial carry substantial weight on appeal, particularly where the trial judge had the advantage of seeing and hearing the evidence directly.
  • Where an appellant was acquitted on a related count, that acquittal does not automatically undermine a guilty verdict on a different count arising from the same factual matrix, provided the conviction is otherwise supported by the evidence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), Pt 1A, ss 61L, 61I
- Criminal Appeal Act 1912 (NSW), ss 5(1)(b), 6(1)
- Criminal Procedure Act 1986 (NSW), ss 23, 133

Cases
- Alkhair v R (2016) 255 A Crim R 419; [2016] NSWCCA 4
- Douglas v The Queen [2012] HCA 34; 86 ALJR 1086
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63