Citation: Name Suppressed v R [2023] NSWCCA 130
Court: NSW Court of Criminal Appeal
Date: 9 June 2023
Judges: Ward P; Walton J; Ierace J
Background
The applicant was convicted after a judge-alone trial in the District Court of one count of intentionally sexually touching his daughter, who was aged between five and six years at the time of the offending. The Crown's case was that he placed his hand under the complainant's pyjama pants and underwear while she was in bed with him. He was sentenced to four years and six months imprisonment with a non-parole period of two years and three months.
The applicant sought leave to appeal both his conviction and his sentence. His conviction appeal rested on a single ground: that his trial counsel conducted the case incompetently by failing to pursue the theory that the complainant's mother had fabricated or encouraged the allegation in order to gain sole custody of the child in Family Court proceedings then on foot. The applicant contended this strategy left his primary defence unpresented.
On sentence, the applicant argued that the sentencing judge took into account material not properly before her, specifically evidence of other similar conduct beyond the single charged offence, and made adverse findings of fact that were not open on the evidence.
Legal Issues
- Whether trial counsel's failure to cross-examine the complainant's mother about a possible motive to fabricate the complaint amounted to flagrant incompetence causing a miscarriage of justice
- Whether an accused is bound by the way trial counsel conducted the case, even where that approach differed from the accused's own preferred strategy
- Whether a sentencing judge may rely on evidence of uncharged similar conduct that was admitted at trial but formed no part of the basis for the conviction
- Whether the sentencing judge made findings of fact that were unavailable on the evidence
Decision
Conviction appeal: The Court confirmed the general rule that an accused is bound by the conduct of the trial by their counsel, unless there is flagrant incompetence that involves or causes a miscarriage of justice. The applicant accepted under cross-examination that he had been advised by counsel not to introduce the Family Court proceedings into his criminal defence, and that he accepted that advice at the time. He also accepted that counsel would instead challenge the reliability of the complainant.
The Court found there was a rational basis for the course counsel took. There was no evidentiary foundation for the applicant's theory about the mother's motive, and counsel had a legitimate concern that raising the Family Court context might open the door to evidence of other complaints of a similar nature. Those considerations provided a sound forensic explanation for the strategy adopted. No miscarriage of justice was established, and the conviction appeal was dismissed.
Sentence appeal: The Court confirmed that a sentencing judge is not confined to findings made during the trial itself, provided any sentencing finding is consistent with the verdict and the reasons given for it. Evidence that the offending was not isolated had been admitted at trial, even after defence counsel invited the trial judge to exclude it under s 137 of the Evidence Act. The fact that this evidence did not form part of the basis for the conviction did not prevent the sentencing judge from relying on it, as it was not inconsistent with the verdict.
The sentencing judge had been satisfied beyond reasonable doubt that the conduct was not an isolated incident, a finding the Court regarded as open on the evidence. The Court noted that even had re-sentencing been necessary, no lesser sentence would have been warranted, given the serious nature of the offence, the very young age and vulnerability of the complainant, and the fact that the offending was committed by her father in his own home.
Orders Made
- Leave to appeal granted
- Conviction appeal dismissed
- Sentence appeal dismissed
Key Takeaways
- An accused is generally bound by the trial strategy adopted by their counsel, even where it departs from the accused's own preferred approach, unless flagrant incompetence causing a miscarriage of justice is established.
- Where counsel had a rational basis for the course taken at trial, including the absence of an evidentiary foundation for an alternative defence and a legitimate concern about opening up prejudicial material, no incompetence is made out.
- A sentencing court is not restricted to findings made at trial and may take into account evidence of uncharged similar conduct, provided that doing so is consistent with the verdict and the reasons for it.
- Evidence admitted at trial but excluded from the reasoning on guilt may still be used on sentence, subject to the requirement that any adverse finding be proved beyond reasonable doubt.
- In dismissing both appeals, the Court of Criminal Appeal reinforced that the standard non-parole period for offences under s 66DA(a) of the Crimes Act 1900 (NSW) is eight years, reflecting the serious nature of child sexual offences, and that objective factors such as victim age, vulnerability, and relationship to the offender bear directly on the sentencing exercise.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 66DA(a)
- Criminal Appeal Act 1912 (NSW), s 5(1)
- Evidence Act 1995 (NSW), s 137
- Legal Profession Uniform Conduct (Barristers) Rules 2015, r 65
Cases:
- Monteiro v R [2011] NSWCCA 113
- Ignjatic v R (1993) 68 A Crim R 333
- R v Carbone [2022] NSWSC 373
- Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614
- House v The King (1936) 55 CLR 499
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Browne v Dunn (1893) 6 R 67
- AK v R [2022] NSWCCA 175
- Fuller v R [2022] NSWCCA 203
- Hanna v R [2022] NSWCCA 7
- LN v R [2020] NSWCCA 131