Citation: R v Hunter and Sara [1999] NSWCCA 5 revised - 17/03/99; (1999) 105 A Crim R 223
Court: NSW Court of Criminal Appeal
Date: 11 March 1999
Judge(s): Meagher JA; Wood CJ at CL; Dunford J
Background
The two appellants were convicted of aggravated robbery following a five-day trial in the District Court at Coffs Harbour. The Crown alleged that, in the early hours of 22 May 1997, the appellants assaulted a man in a street near a nightclub and stole his wallet, $150 in cash, and personal papers. The alleged motive arose from a dispute over a $20 wager made inside the club.
Both appellants acknowledged the confrontation but denied robbing the victim. Each maintained that the victim had thrown the first punch, and both disputed their respective levels of involvement in the physical altercation. One appellant was sentenced to a minimum term of 18 months' penal servitude; the other received a minimum term of 12 months.
Critically, both appellants had been represented by the same counsel at trial, despite having materially different cases available to each of them. They were separately represented for sentencing and on appeal.
Legal Issues
- Whether the conduct of shared trial counsel was so incompetent as to constitute a miscarriage of justice, warranting the convictions being set aside
- Whether the verdicts against each appellant were "unsafe and unsatisfactory" under s 6(1) of the Criminal Appeal Act 1912
- Whether, having found a miscarriage of justice, the appropriate remedy was a verdict of acquittal or an order for a new trial
Decision
The Court of Criminal Appeal allowed both appeals. Wood CJ at CL (with whom Meagher JA and Dunford J agreed) held that there is no single test for determining whether counsel's errors have produced a miscarriage of justice. Each case turns on its own facts, and the question is whether the incompetence displayed was of a nature that caused a miscarriage of justice.
The errors identified in this case were numerous and serious. Counsel had failed to ensure separate representation for two accused with divergent cases, failed to recognise the different defences available to each, failed to lead available character evidence for one accused, failed to object to inadmissible and prejudicial evidence, and generally failed to meet basic standards of advocacy. Taken together, these failures meant the defence was very poorly conducted, and the Court found that a miscarriage of justice had occurred for both appellants.
The Court then considered the appropriate remedy separately for each appellant. In Sara's case, the evidence was such that a jury could be satisfied beyond reasonable doubt of his guilt, so a new trial was ordered rather than an acquittal. In Hunter's case, the Court found that the victim's evidence of Hunter's participation was equivocal. The victim conceded he had not seen Hunter strike him, described his belief in Hunter's involvement as a "sixth sense," and acknowledged he had reconstructed that involvement from the mere fact that the two men were together after the incident. On the whole of the evidence, the Court held the jury ought to have entertained a reasonable doubt about Hunter's guilt, and entered a verdict of acquittal in his favour.
Orders Made
- Hunter: Appeal allowed; conviction and sentence quashed; verdict of acquittal entered.
- Sara: Appeal allowed; conviction and sentence quashed; new trial ordered.
Key Takeaways
- There is no single, universally applicable test for whether counsel's incompetence has caused a miscarriage of justice. Each case is assessed on its own facts, with the central question being whether the incompetence was of a character that led to a miscarriage of justice.
- Representing co-accused with materially different cases through a single counsel, without recognising or acting on those differences, is a significant factor in finding that the conduct of a trial was inadequate.
- A miscarriage of justice arising from incompetent representation does not automatically yield the same remedy for all accused. Where sufficient evidence of guilt exists, a new trial may be ordered; where the evidence falls short, a verdict of acquittal is the appropriate order.
- Highly equivocal identification evidence, including a witness's concession that participation was inferred rather than directly observed, can render a verdict unsafe and unsatisfactory under s 6(1) of the Criminal Appeal Act 1912.
- Once a verdict of acquittal is entered, the Court of Criminal Appeal will not order a new trial simply to allow the Crown to pursue lesser alternative charges on the same evidence.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Crimes Act 1900 (NSW), s 95 (aggravated robbery; maximum penalty 20 years' penal servitude)
Cases Cited:
- Birks (1990) 19 NSWLR 677
- Ensor [1989] 1 WLR 497
- Igniatic (1993) 68 A Crim R 333
- Sandford (1994) 72 A Crim R 160
- D, Court of Criminal Appeal, 22 February 1996 (unreported)
- Hamilton (1993) 68 A Crim R 298
- Francipone, Court of Criminal Appeal New South Wales, 23 December 1988 (unreported)