DWLB v The Queen (No 2)

This case concerned an appeal by DWLB (the applicant) against his conviction for sexual offences. The applicant contended that a material irregularity occurred during his trial, and that this irregularity resulted in a miscarriage of justice. The appeal was heard by Kelly, Nicholson and Hinton JJ.

The central legal issue was whether the applicant's trial was rendered irregular and resulted in a miscarriage of justice due to the decision not to call a particular witness, AB, to give evidence. The applicant argued that the failure to call AB, whose potential evidence was expected to be confirmatory of an "unnatural relationship" between the applicant and the complainant, constituted a material irregularity. The respondent contended that counsel for the applicant made a positive forensic decision to seek AB's release from giving evidence, and that the absence of AB's testimony did not create an irregularity or miscarriage of justice, particularly as AB's evidence, if accepted, would have strengthened the prosecution's case against the applicant.

The Court found that counsel for the applicant had made a rational forensic decision to support AB's application to be released from giving evidence. Counsel had candidly stated a preference for AB not to give evidence, and later submitted that AB's potential evidence was "not compelling and is, from my perspective, prejudicial or potentially prejudicial." The Court reasoned that if AB had given evidence consistent with his statement, it could have led the jury to infer that the applicant was in the complainant's bedroom with another person, and that their activities required concealment. The applicant's defence relied on challenging the complainant's credibility, and there was no independent evidence to prove the offending. The Court concluded that by foregoing AB's evidence, the applicant's counsel may have sacrificed the possibility of acquittal on some counts in favour of seeking acquittal on all counts. Applying the principles that a criminal trial is an adversarial proceeding where parties determine the grounds of contest and evidence to be adduced, the Court held that no unfairness arose in holding the applicant to the case run at trial, and therefore, no miscarriage of justice had occurred.