AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 27 September 2024

AK v R

[2024] NSWCCA 181

Sexual offences
CRIMINAL PROCEDURE CONVICTION APPEAL C OMPLAINTS BY CHILDREN TO MOTHER DELAY IN REPORTING TO POLICE CHALLENGE TO MOTHER’S CREDIBILITY WHETHER INCOMPETENCE OF TRIAL COUNSEL

Citation: AK v R [2024] NSWCCA 181
Court: NSW Court of Criminal Appeal
Date: 27 September 2024
Judge(s): Basten AJA; Rothman J; N Adams J

Background

The applicant, an uncle, was convicted in May 2023 of two counts of sexual intercourse with a child under 10, one count of indecent assault on a child under 16, and one count of attempted indecent assault on a child under 16. The victims were two of his nephews. The offending occurred between 2015 and 2018, when the applicant was aged between 16 and 20 years. An aggregate sentence of four years and six months imprisonment was imposed, with a non-parole period of two years and four months.

The defence case centred on the credibility of the children's mother, who reported the complaints to police in June 2020. The applicant alleged the mother had threatened, during an acrimonious separation from the applicant's brother (the children's father), to accuse the applicant of abuse unless the father stopped pursuing a property claim. The mother's report came approximately three months after that alleged threat.

Separately from the sexual abuse proceedings, the mother had pursued domestic violence charges against the father in the Local Court and District Court. Those proceedings produced a body of transcript and other material. The single ground of appeal was that trial counsel's failure to use that material to challenge the mother's credibility rendered the trial unfair and constituted a miscarriage of justice.

  • Whether the failure of trial counsel to deploy material from the separate domestic violence proceedings to attack the mother's credibility amounted to incompetence causing a miscarriage of justice.
  • Whether the strategic and tactical decisions made by trial counsel were within the proper exercise of counsel's discretion.
  • Whether, even if counsel's conduct fell short of an acceptable standard, the trial was rendered unfair such that the conviction should be set aside.

Decision

The Court confirmed the established legal principles governing appeals based on alleged incompetence of trial counsel. Citing Gleeson CJ in R v Birks (1990) 19 NSWLR 677, the Court reaffirmed that counsel have broad discretion over tactical decisions, including which witnesses to call, what questions to ask, and what lines of argument to pursue. A party is generally bound by those decisions. The competing consideration is the Court of Criminal Appeal's duty to correct a miscarriage of justice, but these are not simply competing factors to be traded off against one another.

The Court examined the material from the domestic violence proceedings that trial counsel had declined to use. Two aspects were pressed: transcript of the mother's cross-examination in the Local Court (where the father was ultimately acquitted of a 2014 assault charge but convicted of 2016 offences), and material from the father's successful District Court appeal against those 2016 convictions. The Court noted that findings on the mother's credibility made in those proceedings were inadmissible under s 91 of the Evidence Act 1995 (NSW), a concession properly made by the applicant's counsel on appeal.

The Court found that an objective assessment of the available material disclosed adequate reasons why trial counsel chose not to pursue that line of attack. Counsel's affidavit confirmed the tactical reasoning, and the trial solicitor's affidavit corroborated the preparation undertaken before trial. The Court also rejected the subsidiary submission that counsel should have elicited evidence from the father denying the domestic violence, noting the risks involved in re-agitating those proceedings and the real possibility the father would have made a poor impression on the jury.

No miscarriage of justice was established. Leave to appeal was granted but the appeal was dismissed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Counsel's discretion over tactical decisions at trial, including the decision not to cross-examine a witness on particular material, is broad and binding on the accused; the Court of Criminal Appeal will not lightly treat such decisions as a miscarriage of justice.
  • An appeal based on alleged incompetence of trial counsel requires the applicant to demonstrate more than that a different approach might have been taken; an objective assessment of the tactical reasoning must disclose that counsel's conduct fell outside the range of reasonable decisions open in the circumstances.
  • Under s 91 of the Evidence Act 1995 (NSW), findings on credibility made in prior separate proceedings are inadmissible in a subsequent trial, which can significantly constrain how material from earlier litigation may be deployed.
  • Where affidavit evidence from both trial counsel and the instructing solicitor demonstrates that the relevant issues were considered and informed tactical choices were made, the foundation for an incompetence ground is substantially undermined.
  • In dismissing the appeal, the Court of Criminal Appeal reinforced that the principles governing counsel's independent role are fundamental to the adversarial system and are not merely factors to be balanced against the power to remedy a miscarriage of justice.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5(1)
- Evidence Act 1995 (NSW), ss 38, 91

Cases:
- R v Birks (1990) 19 NSWLR 677
- TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
- Nudd v The Queen (2006) 80 ALJR 614; [2006] HCA 9