Citation: JPM v R [2023] NSWCCA 220
Court: Court of Criminal Appeal, NSW
Date: 1 September 2023
Judge(s): Ward ACJ (principal judgment); Garling J and Wilson J agreeing
Background
The applicant was tried in the District Court of New South Wales in March 2021 on four counts: two sexual offences against his 17-year-old stepdaughter and two counts of attempting to pervert the course of justice by contacting the complainant's mother to discourage attendance at court and reporting to police. The jury convicted him on counts 2, 3, and 4, and could not reach a verdict on count 1, which the Director of Public Prosecutions subsequently discontinued.
The applicant's central contention at trial was that he had mistakenly believed the complainant was his wife when the relevant conduct occurred. He maintained throughout that he had given clear instructions about this "mistaken identity" defence to two successive sets of legal representatives, and that both sets had failed to pursue it properly. He did not give evidence at trial, a decision he later characterised as the product of inadequate advice.
On 11 June 2021, the applicant was sentenced to an aggregate term of four years with a non-parole period of two years. He sought leave to appeal his conviction on count 2 alone, on the ground of incompetence of counsel and the resulting miscarriage of justice.
Legal Issues
- Whether defence counsel failed to properly put the mistaken identity defence to the jury, in particular by not cross-examining the complainant's mother about an "established sexual practice" consistent with the applicant's instructions.
- Whether the applicant was not properly advised about giving evidence at trial to support that defence.
- Whether any such failing by counsel amounted to incompetence giving rise to a miscarriage of justice, justifying the granting of leave to appeal and the overturning of the conviction.
Decision
The Court of Criminal Appeal granted leave to appeal but dismissed the appeal on all grounds. Ward ACJ delivered the principal judgment, with Garling J and Wilson J each adding concurring reasons.
On the question of the decision not to give evidence, the Court found that the applicant had made a clear and informed forensic choice during conference with his legal representatives. He acknowledged that he had been asked whether he wished to give evidence, that he understood the decision was his to make, and that he knew he could elect to give evidence right up until the end of the trial. Applying the principle from R v Birks (1990) 19 NSWLR 677 that a party is generally bound by the conduct of their legal representatives, the Court held there was no miscarriage arising from the decision not to call the applicant.
On the question of the cross-examination of the complainant's mother, the Court found no incompetence in trial counsel's decision not to pursue the "established sexual practice" line of questioning. Even setting that aside, the Court applied the principle from Roach v R [2019] NSWCCA 160 that an applicant must demonstrate the failing affected the outcome, not merely point to a deficiency. There was no basis on the evidence to conclude that questioning the complainant's mother on that topic would have changed the result.
Wilson J noted that much of the difficulty arose from the applicant's own making. His instructions to his lawyers were internally contradictory and inconsistent with accounts given to police, with his conduct when directly confronted by the complainant and her mother, and across the different versions he provided over time. The explanation offered that poor English language skills accounted for these contradictions was not persuasive, as both the police and his lawyers reported no difficulty communicating with him in English.
Orders Made
- Leave to appeal granted.
- Appeal dismissed.
Key Takeaways
- A defendant who makes a clear and informed decision, in conference with counsel, not to give evidence will ordinarily be bound by that choice. Subsequent dissatisfaction with the outcome does not, of itself, establish inadequate advice or a miscarriage of justice.
- Incompetence of counsel is not established merely by identifying a forensic decision that could have been made differently. Under the principle confirmed in Roach v R, the applicant must also show that the alleged failing affected the outcome of the trial.
- No error was established in trial counsel's decision not to cross-examine a key witness on a particular line of questioning, where the evidence provided no foundation for concluding that the answers would have altered the verdict.
- Internally contradictory instructions from a client constrain what counsel can properly put to a jury. Where the contradictions originate with the client rather than with counsel's conduct, that does not give rise to a miscarriage of justice attributable to incompetence.
- In dismissing the appeal, the Court of Criminal Appeal reaffirmed that an acquittal will not be ordered simply because a defendant has served most of a sentence; the legal grounds for overturning a conviction must themselves be made out.
Legislation and Cases Referenced
Legislation
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Crimes Act 1900 (NSW), ss 61KD, 61KF, 319, 323, 578A
- Criminal Appeal Act 1912 (NSW), ss 5, 6, 7
- Director of Public Prosecutions Act 1986 (NSW), s 7
- Evidence Act 1995 (NSW), ss 38, 88, 90, 138
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
Key Cases
- R v Birks (1990) 19 NSWLR 677
- Roach v R [2019] NSWCCA 160; (2019) 344 FLR 429
- TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
- Nudd v The Queen [2006] HCA 9; (2006) 162 A Crim R 301
- Krishna v Director of Public Prosecutions (NSW) [2007] NSWCCA 318
- Alramadan v Director of Public Prosecutions (NSW) [2007] NSWCCA 322
- Hofer v The Queen [2021] HCA 36; (2021) 291 A Crim R 114
- Craig v The Queen (2018) 264 CLR 202; [2018] HCA 13
- Gilham v R [2012] NSWCCA 131; (2012) 223 A Crim R 22