TKWJ v The Queen [2002] HCA 46

HIGH COURT OF AUSTRALIA

GLEESON CJ,

GAUDRON, McHUGH, GUMMOW AND HAYNE JJ

TKWJ APPELLANT

AND

THE QUEEN RESPONDENT

TKWJ v The Queen

[2002] HCA 46

10 October 2002

S176/2001

ORDER

Appeal dismissed.

On appeal from Supreme Court of New South Wales

Representation:

T A Game SC with M Buscombe for the appellant (instructed by Legal Aid Commission of New South Wales)

A M Blackmore SC with D M L Woodburne for the respondent (instructed by S E O'Connor, Solicitor for Public Prosecutions (New South Wales))

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

TKWJ v The Queen

Criminal law – Conviction – Aggravated indecent assault – Aggravated indecency – Matters connected with conduct of defence – Failure of defence counsel to call character evidence – No application for voir dire – Whether tactical decision of defence counsel not to call character evidence constituted a miscarriage of justice where that evidence may have been excluded – Chance of acquittal "fairly open" not lost.

Criminal law – Appeal – Practice and procedure – "On any other ground whatsoever" – Allegation defendant not competently or adequately represented – Tactical decision at trial – Whether forensic advantage – Informed and deliberate decision – No miscarriage of justice.

Criminal law – Appeal – Circumstances in which conduct of legal practitioners can provide grounds for appeal – Relevant principles.

Criminal law – Jurisdiction – Trial judge – "Advance ruling" – Whether required by Evidence Act 1995 (NSW) – Whether within implied powers of District Court – Power to conduct voir dire to make "advance ruling".

Words and Phrases – "fairly open", "on any other ground whatsoever", "advance ruling".

Criminal Appeal Act 1912 (NSW), s 6(1).

Evidence Act 1995 (NSW), ss 55, 110, 135, 136, 137, 189, 192.