BB v R - [2015] NSWCCA 308

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: BB v R [2015] NSWCCA 308
Hearing dates: 17 August, 23 November 2015
Date of orders: 23 November 2015
Decision date: 04 December 2015
Before: Leeming JA; Price J; R A Hulme J
Decision:
1. Leave to appeal granted.

2. Appeal allowed.

3. Quash the conviction and sentence.

4. Remit the matter for retrial.
5. Stand the matter over to the District Court for mention at 9:30am on 4 December 2015 with the view of fixing the trial date.
Catchwords:
CRIMINAL LAW – sexual assault – appeal against conviction – alleged incompetence of counsel – whether significant possibility that incompetence affected outcome of trial – failure to adduce good character evidence before jury – failure to seek direction as to good character – good character evidence shown to be available – no explanation for course taken – concessions by Crown accepted – appeal allowed, conviction quashed and retrial ordered

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
Crimes Act 1900 (NSW), s 578A

Cases Cited:
Nudd v The Queen [2006] HCA 9; 80 ALJR 614
R v Birks (1990) 19 NSWLR 677
TKWJ v The Queen [2002] HCA 46; 212 CLR 124
Tsiakas v R [2015] NSWCCA 187

Category: Principal judgment
Parties: BB (Applicant)
Crown (Respondent)
Representation:
Counsel:
K Ginges, T Skinner (Applicant)
J Pickering SC (Respondent)
Solicitors:
Hal Ginges & Co (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2012/73909
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

14 June 2013

Before:

Quirk DCJ

File Number(s):

2012/73909

Judgment

THE COURT: At the conclusion of the hearing on 23 November 2015, the Court granted leave to appeal against conviction, allowed the appeal, quashed the conviction and sentence and ordered a retrial. What follows are our reasons for those orders.
The applicant BB, who cannot be named by reason of s 578A of the Crimes Act 1900 (NSW), was convicted after a trial before the primary judge and a jury of 12 lasting 14 days, on seven of nine counts of an indictment presented against him related to events between 1993 and 2000, all involving the same female complainant, who at the time was aged between six and 12. BB was found not guilty of one count of sexual intercourse and one count of indecent assault relating to an allegation at the Jenolan Caves. The primary judge imposed an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) of imprisonment for a period of 10 years with a non-parole period of six years, commencing on 9 August 2013 following the refusal, after his conviction, of bail.
BB sought leave to appeal against both his conviction and the severity of the sentence. A notice of appeal was not filed until 26 March 2015. At the commencement of the first day of the hearing, on 17 August 2015,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading BB v R

Details

AGLC: Content removed [2015] NSWCCA 308
Case: [2015] NSWCCA 308
Decision Date: 04 December 2015

CaseChat Overview and Summary

The case of BB v R involved an appeal against conviction for sexual assault. The appellant, BB, was convicted in the County Court of Victoria. BB sought to appeal on the basis that the incompetence of his trial counsel had significantly affected the outcome of the trial. Specifically, counsel had failed to adduce good character evidence before the jury and did not seek a direction as to the good character of the appellant. BB argued that such evidence was available and that there was a significant possibility that the incompetence of his counsel had influenced the trial's outcome.

The court considered the applicable legal principles regarding the standard of competence for legal representation and the consequences of a failure to act in accordance with that standard. The court noted that the appellant's trial counsel had failed to act in a manner consistent with a competent legal practitioner, given that good character evidence was available and could have been presented to the jury. The court accepted the Crown's concession that BB's good character evidence was available and that there was a significant possibility that the incompetence of his counsel had affected the outcome of the trial. The court found that there was no explanation for counsel's course of action, and it was not in the interests of justice to allow the conviction to stand.

The court allowed the appeal, quashed the conviction, and ordered a retrial. The court acknowledged the importance of ensuring that all persons charged with criminal offences receive a fair trial and that legal representation meets the required standard of competence. The court's decision in BB v R highlights the importance of ensuring that legal practitioners provide their clients with competent representation, and the consequences that may arise from a failure to do so.

Orders