White v R [2018] NSWCCA 1

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: White v R [2018] NSWCCA 1 Hearing dates: 1 September 2017 Date of orders: 12 January 2018 Decision date: 12 January 2018 Before: Hoeben CJ at CL at [1] Davies J at [2] Bellew J at [103] Decision: (1) Leave to appeal granted. (2) Appeal dismissed. Catchwords: CRIMINAL LAW - sexual intercourse without consent and three counts of indecent assault – farmer on remote property – female backpacker farm worker – whether miscarriage of justice by incompetence of counsel – applicant not called to give evidence at trial – whether applicant advised of right to give evidence -applicant with cognitive and memory deficits - whether conviction was inevitable if not called – credibility issues concerning complainant – whether decision not to call applicant was a rational decision – whether Crown Prosecutor's address invited reasoning involving a reversal of onus – where complainant's credibility in issue – where address pointed to matters supporting credibility of complainant - no objection taken or application made by defence at trial – Rule 4 applies to refuse leave to raise ground on appeal Legislation Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1912 (NSW) Evidence Act 1995 (NSW) Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) Cases Cited: Azzopardi v R (2001) 205 CLR 50; [2001] HCA 25 Brown v R [2008] NSWCCA 306 Doe v R [2008] NSWCCA 203; (2008) 187 A Crim R 328 Ignjatic v R (1993) 68 A Crim R 333 Kho v R [2012] NSWCCA 71 MB v R [2009] NSWCCA 200 Mraz v the Queen (1955) 93 CLR 493 Nudd v The Queen [2006] HCA 9; 80 ALJR 614 Palmer v The Queen (1998) 193 CLR 1; [1998] HCA 2 R v Birks (1990) 19 NSWLR 677 R v McLean [2001] NSWCCA 58; (2001) 121 A Crim R 484 R v Smith [1999] NSWCCA 126 R v Szabo [2000] QCA 194; (2000) 112 A Crim R 215 South v R [2007] NSWCCA 117 TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 Category: Principal judgment Parties: Leslie White (Appellant) Crown (Respondent) Representation: Counsel: D Dalton SC & J Kellaway (Appellant) D Kell SC & M Pulsford (Respondent)