Stevens v The Queen - [2013] NSWCCA 158

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Stevens v R [2013] NSWCCA 158
Hearing dates: 17 June 2013
Decision date: 03 July 2013
Before: Hoeben CJ at CL at [1]
McCallum J at [67]
RA Hulme J at [68]
Decision:
Leave to appeal granted.
Appeal dismissed.

Catchwords: CRIMINAL LAW - conviction appeal - sexual intercourse without consent - suggestion that evidence of complainant contaminated by support person - decision by counsel not to cross-examine complainant on voir dire - whether decision gave rise to a material irregularity in the trial - whether miscarriage of justice occurred - proper forensic purpose for decision by counsel - instructions obtained from accused - no material irregularity - no miscarriage of justice - PRACTICE AND PROCEDURE - evidence taken on appeal - evidence of offender that no instructions given - evidence of counsel that advice given and instructions received - evidence of counsel should be accepted.
Legislation Cited: Criminal Appeal Act 1912 (NSW)
Cases Cited: MB v Regina [2009] NSWCCA 200
Nudd v R [2006] HCA 9; 80 ALJR 614
TKWJ v The Queen [2002] HCA 46; 212 CLR 124
Category: Principal judgment
Parties: John Andrea Stevens - Applicant
Regina - Respondent Crown
Representation: Counsel:
Mr FD Coyne - Applicant
Mr R Herps - Regina - Respondent Crown
Solicitors:
Matthew Hammond Solicitors - Applicant
S Kavanagh - Solicitor for Public Prosecutions - Respondent Crown

File Number(s): 2010/64211
Decision under appeal

Date of Decision:

2011-07-14 00:00:00

Before:

Berman DCJ

File Number(s):

2010/64211

Judgment

HOEBEN CJ at CL: The applicant seeks leave to appeal against his conviction on five counts of sexual intercourse without consent, three counts of indecent assault and two counts of attempted sexual intercourse without consent. All ten charges related to the same complainant and arose from an incident on the morning of 17 January 2009.

The applicant stood trial before Judge Berman and a jury of twelve and was convicted on 14 July 2011. The trial lasted eight days. The issue in the trial was consent. The applicant was sentenced to imprisonment for 9 years with a non-parole period of 6 years. There is no application for leave to appeal against sentence.

The grounds of appeal relied upon by the applicant are:

Ground 1: Counsel for the applicant erred in not cross-examining the complainant as to the extent to which the complainant's evidence had been compromised.

Ground 2: Counsel for the applicant erred in not making an application for a mistrial.

Crown case at trial

The complainant was a 19 year old backpacker from Denmark. She went to a bar in George Street, Sydney, with a girlfriend at around midnight on 16 January 2009. She had consumed about four mugs of red wine earlier at her hostel before going out. She described herself as intoxicated, but in control. She remembered dancing with her friend at the bar and thinking about buying a cocktail.

The complainant's next memory was waking up in an unfamiliar room, naked…

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 Stevens v The Queen

Details

AGLC: Stevens v The Queen [2013] NSWCCA 158
Case: [2013] NSWCCA 158
Decision Date: 03 July 2013

CaseChat Overview and Summary

Stevens v The Queen is a significant case concerning a criminal appeal regarding a conviction for sexual intercourse without consent. The decision was handed down by an Australian court of appeal. The appellant, Stevens, contested his conviction, arguing that there was a material irregularity in the trial process and that a miscarriage of justice had occurred. He focused on the decision by his counsel not to cross-examine the complainant on voir dire, suggesting that this decision was influenced by evidence potentially contaminated by a support person. Stevens contended that this decision deprived him of a fair trial.

The primary legal issues before the court were whether the decision by counsel not to cross-examine the complainant constituted a material irregularity in the trial and whether such irregularity led to a miscarriage of justice. The court needed to assess the impact of this decision on the fairness and integrity of the trial. Additionally, the court examined the existence of a proper forensic purpose for counsel's decision and whether the appellant had received instructions from his counsel.

The court found that there was no material irregularity in the trial process and that no miscarriage of justice had occurred. The decision by counsel not to cross-examine the complainant was based on a proper forensic purpose, as supported by the counsel's instructions obtained from the appellant. The court accepted the evidence of counsel over that of the appellant, who claimed no instructions were given. Therefore, the appeal was dismissed, and the conviction was upheld. The court emphasised the importance of counsel's decisions being based on sound legal strategy and the necessity for such decisions to be supported by clear instructions from the accused.

Orders