Biggers v The Queen - [2020] NSWCCA 22

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Biggers v R [2020] NSWCCA 22
Hearing dates: 7 February 2020
Decision date: 13 March 2020
Before: McCallum JA at: [1]
Adamson J at: [178]
Beech-Jones J at: [183]
Decision:
(1) Extend the time within which the appeal may be commenced to 19 September 2019.
(2) Pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW), grant leave to appeal.
(3) Dismiss the appeal.

Catchwords:
CRIME — Sexual offences — alleged incompetence of trial counsel in failing to dispute geographical jurisdictional nexus with New South Wales in respect of one count on the indictment — whether there was a rational explanation for counsel’s approach — where dispute as to nexus on that count may have enhanced the complainant’s credibility on another count on the indictment
CRIME — Appeals — Appeal against conviction —
Unreasonable verdict
Legislation Cited: Crimes Act 1900 (NSW) pt 1A, ss 61L, 61I
Criminal Appeal Act 1912 (NSW) ss 6(1), 5(1)(b)
Criminal Procedure Act 1986 (NSW) ss 23, 133
Cases Cited: Alkhair v R (2016) 255 A Crim R 419; [2016] NSWCCA 4
Douglas v The Queen [2012] HCA 34; 86 ALJR 1086
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
Category: Principal judgment
Parties: Philip Biggers (applicant)
Director of Public Prosecutions (respondent)
Representation:
Counsel:
J Paingakulam (applicant)
M Kumar (Crown)
Solicitors:
Swifte Law (applicant)
Office of the Director of Public Prosecutions (Crown)

File Number(s): 2016/248887
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

2 November 2018

Before:

Flannery SC DCJ

File Number(s):

2016/248887

Judgment

McCALLUM JA: Philip Biggers (the applicant) was tried by judge alone in the District Court for seven sexual offences alleged to have been committed against two sisters when he was aged 39 and they were aged 17 and 16. Counts 1 and 2 on the indictment concerned the older sister, JL. The trial judge (Flannery SC DCJ) found the applicant guilty of count 1, an allegation of indecent assault, but not guilty of count 2, an allegation of sexual intercourse without consent. Counts 3 to 7 concerned the younger sister, HL. The trial judge found the applicant guilty of count 3, an allegation of aggravated sexual intercourse without consent. The circumstance of aggravation was that, at the time of the commission of the offence, HL was under the applicant’s authority. Her Honour found the applicant not guilty of the remaining counts.
The applicant was tried jointly with Elaine Laugesen, to whom I will refer as the co-accused. She was the applicant’s girlfriend at the time. She faced a single count of aiding, abetting and assisting the applicant to commit one of the alleged offences against the younger complainant, HL. The charge against the co-accused related to one of the counts on which the applicant was acquitted and accordingly the co-accused…

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 Biggers v The Queen

Details

AGLC: Biggers v The Queen [2020] NSWCCA 22
Case: [2020] NSWCCA 22
Decision Date: 13 March 2020

CaseChat Overview and Summary

Biggers was charged with and convicted of several offences, including sexual offences. The defendant appealed against his conviction, contending that his trial counsel was incompetent for failing to dispute the geographical jurisdictional nexus with New South Wales in relation to one count on the indictment. The defendant argued that the lack of a dispute on the jurisdictional nexus regarding this count may have enhanced the credibility of the complainant on another count. The appeal hinged on whether there was a rational explanation for the trial counsel’s approach and whether the alleged incompetence affected the fairness of the trial.

The court considered whether the trial counsel's failure to dispute the jurisdictional nexus was a result of a sound tactical decision or whether it constituted incompetence. The court examined whether the decision not to challenge the nexus could be rationally explained and whether it may have inadvertently bolstered the complainant's credibility on another count. The defendant needed to demonstrate that the alleged incompetence was so significant that it rendered the trial unfair and the verdict unreasonable.

The court concluded that the trial counsel's decision not to dispute the jurisdictional nexus could be rationally explained as a tactical choice. The court found that the rationale behind this approach was to avoid drawing unnecessary attention to the jurisdictional issue, which might have otherwise undermined the defendant’s position on other counts. Consequently, the court determined that the alleged incompetence did not affect the fairness of the trial or lead to an unreasonable verdict. The appeal was dismissed, and the conviction was upheld.

Orders