Reported Decision : 123 A Crim R 165 New South Wales Court of Criminal Appeal CITATION : R v P S [2001] NSWCCA 224 FILE NUMBER(S) : CCA 60304/00 HEARING DATE(S) : 4 June 2001 JUDGMENT DATE : 4 June 2001 PARTIES : Regina P S JUDGMENT OF : Dowd J at 1, 27, 29; Greg James J at 28; Newman AJ at 2 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL Goldring DCJ OFFICER : COUNSEL : Mr Lamprati for the Crown Mr Strickland for the Appellant SOLICITORS : S E O'Connor for the Director of Public Prosecutions David Giddy & Associates for the Appellant CATCHWORDS : Criminal Law - appeal and new trial - miscarriage of justice - conduct of legal practitioners - incompetence of counsel - relevant principles LEGISLATION CITED : Crimes Act 1900 (NSW), s66A Birks (1990) 19 NSWLR 677 CASES CITED: Boodram v State of Trinidad and Tobago (Privy Council, unreported, 10 April 2001) R v A R D [2000] NSWCCA 443 DECISION : Appeal upheld, conviction and sentence quashed, and a new trial ordered. - 3 - IN THE COURT OF CRIMINAL APPEAL DOWD J GREG JAMES J NEWMAN AJ MONDAY 4 JUNE 2001 60304/00 REGINA v P S JUDGMENT 1 DOWD J: The Court is in a position to give judgment in this matter and Newman AJ will give the first judgment. 2 NEWMAN AJ: This is an appeal brought against conviction. The appellant was indicted before the District Court at Liverpool on a count that he had sexual intercourse with a child under the age of ten years, namely eight years, contrary to s 66A of the Crimes Act. An alternative charge of aggravated indecent assault was contained in the indictment. He pleaded not guilty to both counts but the jury found him guilty and he was sentenced to a term of imprisonment. 3 He seeks not to challenge the term of imprisonment imposed but the conviction. In this regard he has filed four grounds of appeal, the first two being: (1) that a miscarriage of justice occurred by reason of the incompetence of the appellant's counsel, and (2) that his conviction constituted a miscarriage of justice and the trial was unfair. 4 The same arguments apply to both those two grounds. There are two other grounds relating to directions given by his Honour. In that event I do not believe it is necessary for me to say any more about grounds 3 or 4 having regard to the conclusion I have reached in relation to the first nominated ground of appeal. 5 At the trial five witnesses were called in the Crown case. The complainant LA, who was eight at the time of the alleged offence, her sister PA, who was 6, the mother WA, Dr Brennan, the doctor who examined the complainant, and the police officer who had taken the ERISP given by the accused. In that electronically recorded video tape the accused had denied any wrong doing of the type with which he was subsequently charged. 6 It is appropriate at this stage of my reasons to observe that in fact the appellant had originally been charged with sexual assault charges of the type I have identified in relation to the appeal in relation to not only the complainant in the matter but also the girl PA. 7 Initially indeed it was the intention of the Crown that the matter proceed as a joint trial. A decision was made to sever the indictment and to charge the appellant separately in the cases of both LA and PA. Ultimately a direction was given by the DPP that no further proceedings be brought in relation to the girl PA. Counsel for the appellant at the trial was so advised prior to the commencement of the trial. 8 I should say that, when on a mention in the District Court the Crown announced that it proposed to sever the indictment, objection was made by counsel who appeared in the trial for the accused to the severance. That objection, of course, could not succeed because while it is open to an accused person where a joint trial is mooted to seek severance, the Court has no power to enforce joinder upon the Crown. In any event, that was the background to the case. 9 The Crown case, as I have said, consisted of five witnesses, four of whom the Crown intended to call, the fifth was the girl PA. She was called at the specific request of counsel for the appellant at trial. 10 The Crown case as called, as I have said, involved the complainant giving evidence. She gave evidence of the events which occurred when she was eight years old at her home. The appellant was her step-father and, of course, was the step-father of her sister PA. She claimed that the appellant, after returning from a ten-pin bowling expedition in which she had taken part with the appellant, came into her room where she was sleeping on a bunk, and there had penile sexual intercourse with her. She said that she had tried to tell her mother the next morning of the event but the mother could not understand what she was putting to her. 11 She also gave evidence of four other occasions of sexual assault. They were not matters contained in the indictment but for reasons I need not go into in detail would have been admissible evidence in a case of this type. 12 The witness PA was called, as I have said upon the request of counsel for the accused, at the trial. The reason advanced by the appellant's trial counsel to the Crown Prosecutor as to why he wished PA to be called was that he wanted to raise in cross-examination the proposition that the allegations of sexual assault by both girls were concocted by the mother WA. The Crown asked a number of uncontroversial questions and then PA was cross-examined by counsel for the accused at the trial. 13 I need not say more than the cross-examination resulted in PA saying that she had told the police of a penile penetration of her vagina by the appellant. There was no suggestion made, as indeed no suggestion was made to the complainant PA when she gave evidence, that the sexual assault raised by counsel for the accused at the trial with PA, was a fabricated allegation brought about by a conspiracy hatched by the mother WA. 14 WA gave evidence of events which occurred including, I might say, evidence of a note given to her by the complainant relating to a question of sexual assault by the appellant. Again no questions were asked of the witness WA which involved a suggestion that she had concocted a fabricated story for the purpose of seeking revenge or otherwise doing mischief to the accused - the appellant here. 15 The doctor who was called, Dr Brennan, was cross-examined by counsel for the accused at the trial of not only her examination of the complainant but of PA, again highlighting the allegation that the appellant had carried out a sexual assault upon PA. 16 The ERISP evidence was uncontroversial save counsel for the accused insisted that those matters relating to PA, which the Crown in my view quite properly wished to have excised, went before the jury. 17 The law relating to this question of whether counsel's incompetence can give rise to interference by this Court has been discussed in a number of cases in recent years. In this State the leading case is that of Birks (1990) 19 NSWLR 677. The then Chief Justice summarised the principles which are to be applied at p 685 of that report and he set out on that page in pithy form the relevant principles. He said: "The relevant principles, may be summarised as follows: 1. A Court of Criminal Appeal has a power and a duty to intervene in the case of a miscarriage of justice, but what amounts to a miscarriage of justice is something that has to be considered in the light of the way in which the system of criminal justice operates. 2. As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence. 3. However, there may arise cases where something has occurred in the running of a trial, perhaps as a result of 'flagrant incompetence' of counsel, or perhaps from some other cause, which would be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention." 18 It is the fact that this ground has been raised a number of times before this Court unsuccessfully; see for instance R v A R D [2000] NSWCCA 443 and indeed in my judgment in that case I specifically referred to a case where the question that counsel had not raised specifically with witnesses, a question of a concoction for conspiracy in a sexual case, at page 26 of the judgment at para 104 through. 19 The learned Chief Justice in Birks case left open the question of what would constitute flagrant incompetence in any particular case. The fact that counsel might take a bold course which does not succeed, would not of itself constitute flagrant incompetence; a failure to ask a few questions, a failure to indeed seek severance, has been held by this Court not to constitute flagrant incompetence. 20 However, and I have taken into account the contents of a letter written by counsel for the accused at the trial, which is annexed to an affidavit of Ms Crittenden of 1 June 2001, as to what he did at the trial. I find that this is a case where forcing the Crown, and indeed the Crown can be so forced, to call a witness on a certain basis, namely to make out a case of conspiracy against the appellant, conspiracy involving the complainant, her sister, and as the author of the conspiracy, the mother, may be regarded as a bold move which, if it did not succeed, would not attract the interference of this Court. But to force the Crown to call the sister PA, then not put to her, nor to the complainant, but more importantly to the mother, this question of a concoction or conspiracy of the story, left the accused in a position where it would in fact be a matter of amazement to informed observers if he had not been convicted. 21 Indeed, as I have said, when Dr Brennan was called not only was she asked questions about her examination of the complainant but also questions involving the sister PA, therefore underscoring the matter of tendency evidence. I should add the Crown did not rely upon tendency evidence and I also add that counsel for the Crown at trial was so alarmed by the course of events which I have narrated above that she raised them specifically in open court in the absence of the jury after the completion of the Crown case. 22 I believe that what the learned Crown Prosecutor did at the trial was entirely appropriate and she deserves commendation for her keen eye for justice in that event. 23 However, counsel for the accused did not take up the suggestion which was emanating from the Crown. He has said he was acting on instructions. An affidavit filed by the appellant indicated that the appellant was leaving the matter of the conduct of the trial entirely to counsel. 24 It should be said at once that the appellant is not a person who has been the subject of close scrutiny by the law over the years and thus, unlike many who appear in this Court, was inexperienced in the ways of criminal trials. 25 In short I am of the view that this is one of the rare cases, and I stress the fact that these are rare cases, where a case of flagrant incompetence has been made out. 26 Recently the Privy Council had occasion to deal with such a case in the case of Boodram v State of Trinidad and Tobago (Privy Council, unreported, 10 April 2001) where a woman who had been sentenced to death some 13 years before eventually got her appeal on in the Privy Council. Their Lordships concluded breaches which had occurred in the conduct of the trial - it was not even her initial trial but a re-trial and counsel was unaware it was a re-trial - were of such a fundamental nature that the conclusion must be the defendant was deprived of due process. That in my view is precisely what happened here. The conduct of counsel resulted in the appellant being deprived of due process, therefore a miscarriage has occurred. In view of this conclusion I do not propose to deal with the other grounds of appeal. 27 What I propose is this, that the Court make the following orders: appeal upheld, conviction quashed and indeed sentence quashed, and a new trial ordered. 28 DOWD J: I agree with Newman AJ. 29 GREG JAMES J: I do also. 30 DOWD J: The orders of this Court will be as proposed by Newman AJ. - oOo - - 3 - IN THE COURT OF CRIMINAL APPEAL DOWD J GREG JAMES J NEWMAN AJ MONDAY 4 JUNE 2001 60304/00 REGINA v P S JUDGMENT 1 DOWD J: The Court is in a position to give judgment in this matter and Newman AJ will give the first judgment. 2 NEWMAN AJ: This is an appeal brought against conviction. The appellant was indicted before the District Court at Liverpool on a count that he had sexual intercourse with a child under the age of ten years, namely eight years, contrary to s 66A of the Crimes Act. An alternative charge of aggravated indecent assault was contained in the indictment. He pleaded not guilty to both counts but the jury found him guilty and he was sentenced to a term of imprisonment. 3 He seeks not to challenge the term of imprisonment imposed but the conviction. In this regard he has filed four grounds of appeal, the first two being: (1) that a miscarriage of justice occurred by reason of the incompetence of the appellant's counsel, and (2) that his conviction constituted a miscarriage of justice and the trial was unfair. 4 The same arguments apply to both those two grounds. There are two other grounds relating to directions given by his Honour. In that event I do not believe it is necessary for me to say any more about grounds 3 or 4 having regard to the conclusion I have reached in relation to the first nominated ground of appeal. 5 At the trial five witnesses were called in the Crown case. The complainant LA, who was eight at the time of the alleged offence, her sister PA, who was 6, the mother WA, Dr Brennan, the doctor who examined the complainant, and the police officer who had taken the ERISP given by the accused. In that electronically recorded video tape the accused had denied any wrong doing of the type with which he was subsequently charged. 6 It is appropriate at this stage of my reasons to observe that in fact the appellant had originally been charged with sexual assault charges of the type I have identified in relation to the appeal in relation to not only the complainant in the matter but also the girl PA. 7 Initially indeed it was the intention of the Crown that the matter proceed as a joint trial. A decision was made to sever the indictment and to charge the appellant separately in the cases of both LA and PA. Ultimately a direction was given by the DPP that no further proceedings be brought in relation to the girl PA. Counsel for the appellant at the trial was so advised prior to the commencement of the trial. 8 I should say that, when on a mention in the District Court the Crown announced that it proposed to sever the indictment, objection was made by counsel who appeared in the trial for the accused to the severance. That objection, of course, could not succeed because while it is open to an accused person where a joint trial is mooted to seek severance, the Court has no power to enforce joinder upon the Crown. In any event, that was the background to the case. 9 The Crown case, as I have said, consisted of five witnesses, four of whom the Crown intended to call, the fifth was the girl PA. She was called at the specific request of counsel for the appellant at trial. 10 The Crown case as called, as I have said, involved the complainant giving evidence. She gave evidence of the events which occurred when she was eight years old at her home. The appellant was her step-father and, of course, was the step-father of her sister PA. She claimed that the appellant, after returning from a ten-pin bowling expedition in which she had taken part with the appellant, came into her room where she was sleeping on a bunk, and there had penile sexual intercourse with her. She said that she had tried to tell her mother the next morning of the event but the mother could not understand what she was putting to her. 11 She also gave evidence of four other occasions of sexual assault. They were not matters contained in the indictment but for reasons I need not go into in detail would have been admissible evidence in a case of this type. 12 The witness PA was called, as I have said upon the request of counsel for the accused, at the trial. The reason advanced by the appellant's trial counsel to the Crown Prosecutor as to why he wished PA to be called was that he wanted to raise in cross-examination the proposition that the allegations of sexual assault by both girls were concocted by the mother WA. The Crown asked a number of uncontroversial questions and then PA was cross-examined by counsel for the accused at the trial. 13 I need not say more than the cross-examination resulted in PA saying that she had told the police of a penile penetration of her vagina by the appellant. There was no suggestion made, as indeed no suggestion was made to the complainant PA when she gave evidence, that the sexual assault raised by counsel for the accused at the trial with PA, was a fabricated allegation brought about by a conspiracy hatched by the mother WA. 14 WA gave evidence of events which occurred including, I might say, evidence of a note given to her by the complainant relating to a question of sexual assault by the appellant. Again no questions were asked of the witness WA which involved a suggestion that she had concocted a fabricated story for the purpose of seeking revenge or otherwise doing mischief to the accused - the appellant here. 15 The doctor who was called, Dr Brennan, was cross-examined by counsel for the accused at the trial of not only her examination of the complainant but of PA, again highlighting the allegation that the appellant had carried out a sexual assault upon PA. 16 The ERISP evidence was uncontroversial save counsel for the accused insisted that those matters relating to PA, which the Crown in my view quite properly wished to have excised, went before the jury. 17 The law relating to this question of whether counsel's incompetence can give rise to interference by this Court has been discussed in a number of cases in recent years. In this State the leading case is that of Birks (1990) 19 NSWLR 677. The then Chief Justice summarised the principles which are to be applied at p 685 of that report and he set out on that page in pithy form the relevant principles. He said: "The relevant principles, may be summarised as follows: 1. A Court of Criminal Appeal has a power and a duty to intervene in the case of a miscarriage of justice, but what amounts to a miscarriage of justice is something that has to be considered in the light of the way in which the system of criminal justice operates. 2. As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence. 3. However, there may arise cases where something has occurred in the running of a trial, perhaps as a result of 'flagrant incompetence' of counsel, or perhaps from some other cause, which would be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention." 18 It is the fact that this ground has been raised a number of times before this Court unsuccessfully; see for instance R v A R D [2000] NSWCCA 443 and indeed in my judgment in that case I specifically referred to a case where the question that counsel had not raised specifically with witnesses, a question of a concoction for conspiracy in a sexual case, at page 26 of the judgment at para 104 through. 19 The learned Chief Justice in Birks case left open the question of what would constitute flagrant incompetence in any particular case. The fact that counsel might take a bold course which does not succeed, would not of itself constitute flagrant incompetence; a failure to ask a few questions, a failure to indeed seek severance, has been held by this Court not to constitute flagrant incompetence. 20 However, and I have taken into account the contents of a letter written by counsel for the accused at the trial, which is annexed to an affidavit of Ms Crittenden of 1 June 2001, as to what he did at the trial. I find that this is a case where forcing the Crown, and indeed the Crown can be so forced, to call a witness on a certain basis, namely to make out a case of conspiracy against the appellant, conspiracy involving the complainant, her sister, and as the author of the conspiracy, the mother, may be regarded as a bold move which, if it did not succeed, would not attract the interference of this Court. But to force the Crown to call the sister PA, then not put to her, nor to the complainant, but more importantly to the mother, this question of a concoction or conspiracy of the story, left the accused in a position where it would in fact be a matter of amazement to informed observers if he had not been convicted. 21 Indeed, as I have said, when Dr Brennan was called not only was she asked questions about her examination of the complainant but also questions involving the sister PA, therefore underscoring the matter of tendency evidence. I should add the Crown did not rely upon tendency evidence and I also add that counsel for the Crown at trial was so alarmed by the course of events which I have narrated above that she raised them specifically in open court in the absence of the jury after the completion of the Crown case. 22 I believe that what the learned Crown Prosecutor did at the trial was entirely appropriate and she deserves commendation for her keen eye for justice in that event. 23 However, counsel for the accused did not take up the suggestion which was emanating from the Crown. He has said he was acting on instructions. An affidavit filed by the appellant indicated that the appellant was leaving the matter of the conduct of the trial entirely to counsel. 24 It should be said at once that the appellant is not a person who has been the subject of close scrutiny by the law over the years and thus, unlike many who appear in this Court, was inexperienced in the ways of criminal trials. 25 In short I am of the view that this is one of the rare cases, and I stress the fact that these are rare cases, where a case of flagrant incompetence has been made out. 26 Recently the Privy Council had occasion to deal with such a case in the case of Boodram v State of Trinidad and Tobago (Privy Council, unreported, 10 April 2001) where a woman who had been sentenced to death some 13 years before eventually got her appeal on in the Privy Council. Their Lordships concluded breaches which had occurred in the conduct of the trial - it was not even her initial trial but a re-trial and counsel was unaware it was a re-trial - were of such a fundamental nature that the conclusion must be the defendant was deprived of due process. That in my view is precisely what happened here. The conduct of counsel resulted in the appellant being deprived of due process, therefore a miscarriage has occurred. In view of this conclusion I do not propose to deal with the other grounds of appeal. 27 What I propose is this, that the Court make the following orders: appeal upheld, conviction quashed and indeed sentence quashed, and a new trial ordered. 28 DOWD J: I agree with Newman AJ. 29 GREG JAMES J: I do also. 30 DOWD J: The orders of this Court will be as proposed by Newman AJ. - oOo - DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.