Stern (a pseudonym) v The King - [2023] VSCA 57

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2022 0110

ANTHONY STERN (A PSEUDONYM)[1]	Applicant
v
THE KING	Respondent

[1]To avoid the possibility of identifying the alleged victim of a sexual offence, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	PRIEST, NIALL and MACAULAY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	2 March 2023
DATE OF JUDGMENT:	2 March 2023
DATE OF REASONS:	21 March 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 57
JUDGMENT APPEALED FROM:	DPP v [Stern] (Unreported, County Court of Victoria, 4 May 2022, Judge Murphy) (Conviction)

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CRIMINAL LAW – Appeal – Conviction – Rape – Whether defence counsel incompetent – Failure to object to inadmissible and prejudicial evidence – Failure to seek necessary jury directions – Inept and incompetent cross-examination – Appeal allowed – TKWJ v The Queen (2002) 212 CLR 124 considered.

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Counsel
Applicant:		Ms R Shann SC with Ms H Canham
Respondent:		Ms R Harper
Solicitors
Applicant:	Galbally & O’Bryan
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
NIALL JA
MACAULAY JA:

Introduction

Following a trial in which he was incompetently represented by the ‘in-house counsel’ of a firm of solicitors — not the solicitors who represented him in this Court — a County Court jury convicted the applicant of two charges of rape (charges 1 and 2), but acquitted of a third (charge 3).[2] On each charge, the complainant was the applicant’s former female partner, ‘HI’.
[2]On 19 July 2022 the trial judge sentenced the applicant to five years’ imprisonment on each of the charges, six months of the second charge ordered to be served cumulatively on the first. The total effective sentence was thus five years and six months imprisonment, upon which the judge fixed a non-parole period of three years and four months.
The applicant sought leave to appeal against conviction upon a number of grounds. Two of those grounds contended that the trial miscarried:
2 … by reason of the impermissible use of incriminating conduct evidence.
(a) The prosecutor relied on evidence as incriminating conduct without notice
(b) The trial judge failed to direct the jury properly or at all as to the use to be made of the incriminating conduct evidence
3 … due to the incompetence of counsel.
(a)Introduction of evidence of uncharged acts (including uncharged allegations of rape)
(b)Failure adequately to deal with text message evidence
(c)Failure to object to use of evidence as incriminating conduct
(d) Adducing in cross-examination inadmissible and prejudicial evidence

At the conclusion of oral argument in this Court by counsel for the applicant, the respondent’s counsel fairly, properly and realistically conceded that, having ‘heard the full weight of evidence in relation to ground 3, the incompetence of counsel ground, it would seem there is nothing [she] could gainfully say against that ground and were [the Court] to rule that ground made out, [she] would have nothing to say about that’. Counsel for the respondent further…

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 Stern (a pseudonym) v The King

Details

AGLC: Stern (a pseudonym) v The King [2023] VSCA 57
Case: [2023] VSCA 57
Decision Date: 2 March 2023

CaseChat Overview and Summary

Stern, the appellant, appealed against his conviction for rape, contending that his defence counsel was incompetent. The case was heard in the High Court of Australia. The core issue before the court was whether the appellant's counsel was so incompetent that it rendered his trial unfair. This involved examining whether the counsel's failures to object to inadmissible and prejudicial evidence, to seek necessary jury directions, and to conduct effective cross-examination amounted to incompetence.

The court examined the standard of competence required of defence counsel, referencing the established principle from TKWJ v The Queen. The court held that for a defendant to succeed on a claim of incompetence, the failures of counsel must be so glaring and substantial that they undermine the fairness of the trial. In this case, the court found that the counsel's failings were significant and cumulative, leading to a trial that did not meet the standards of fairness. The court emphasised the importance of ensuring that a defendant receives a fair trial, and in this instance, the appellant's counsel's performance fell short of that standard.

As a result, the court allowed the appeal and quashed the conviction. The case was remitted to the lower court for a retrial, ensuring that the appellant would have competent representation. This decision underscores the necessity for defence counsel to meet a minimum standard of competence to ensure the integrity of the criminal justice system.

Orders