T A Game SC with M Buscombe for the appellant (instructed by Legal Aid Commission of New South Wales)
A M Blackmore SC with D M L Woodburne for the respondent (instructed by S E O'Connor, Solicitor for Public Prosecutions (New South Wales))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
TKWJ v The Queen
Criminal law – Conviction – Aggravated indecent assault – Aggravated indecency – Matters connected with conduct of defence – Failure of defence counsel to call character evidence – No application for voir dire – Whether tactical decision of defence counsel not to call character evidence constituted a miscarriage of justice where that evidence may have been excluded – Chance of acquittal "fairly open" not lost.
Criminal law – Appeal – Practice and procedure – "On any other ground whatsoever" – Allegation defendant not competently or adequately represented – Tactical decision at trial – Whether forensic advantage – Informed and deliberate decision – No miscarriage of justice.
Criminal law – Appeal – Circumstances in which conduct of legal practitioners can provide grounds for appeal – Relevant principles.
Criminal law – Jurisdiction – Trial judge – "Advance ruling" – Whether required by Evidence Act 1995 (NSW) – Whether within implied powers of District Court – Power to conduct voir dire to make "advance ruling".
Words and Phrases – "fairly open", "on any other ground whatsoever", "advance ruling".
GLEESON CJ. Following a trial in the District Court of New South Wales, before Judge Viney QC and a jury, the appellant was convicted of two offences of aggravated indecent assault, and one offence of aggravated indecency, against C, the son of the woman with whom he was living at the time of the offences. The appellant received non-custodial sentences, involving orders for community service. One reason for the apparent leniency in sentence was the medical condition he suffered as a result of a serious accident. The judge took account of evidence of good character, adduced at the sentencing proceedings.
The appellant had also been the subject of allegations made by K, C's younger sister. It had originally been intended that the appellant would be charged with offences against C and K, and that the charges would be heard together. Later, the indictment was amended to omit the charges concerning K. There was evidence before the Court of Criminal Appeal that this amendment was made following warnings given by the Court of Criminal Appeal, in another case,…
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.
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Details
AGLC
TKWJ v The Queen [2002] HCA 46
Case
[2002] HCA 46
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by the appellant, TKWJ, against his conviction for aggravated indecent assault. The dispute centred on whether the appellant's trial had resulted in a miscarriage of justice due to the conduct of his defence counsel, specifically the decision not to call evidence of the appellant's good character.
The legal issues before the Court were whether the defence counsel's tactical decision not to call character evidence, in light of the Crown's intention to call evidence from a complainant named K in rebuttal, constituted a miscarriage of justice. The Court also considered whether the trial judge had the power to make an "advance ruling" on the admissibility of K's evidence, and if the failure to seek such a ruling, or to adduce the character evidence, amounted to incompetent representation or a material irregularity that affected the outcome of the trial.
The Court reasoned that while the defence counsel's decision forfeited the potential advantage of character evidence, it allowed counsel to focus the defence on a single front rather than having to contend with K's evidence. The Court found that the appellant had not established a significant possibility that he would have been acquitted had the character evidence been called, deeming such a possibility to be mere speculation. The Court emphasised that the ultimate issue was whether a miscarriage of justice had occurred, and that counsel's conduct was a sub-issue to be examined within the context of the wide discretion afforded to counsel in conducting a trial. The Court concluded that the appellant had not demonstrated a material irregularity or a significant possibility of acquittal had the alleged irregularity not occurred.
The appeal was dismissed.
Orders
Orders of the court
Appeal dismissed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
At the station, K made a statement consisting of her responses to questions asked by the interviewing officer. K alleged that the appellant pulled down her pants and rubbed her "[o]n [her] bum and bajina" in her bedroom and that the appellant had made her "play with him". She was about seven and a half at the time of the two offences.Counsel's decision to not call character evidence In the Court of Criminal Appeal, three affidavits were tendered concerning counsel's decision not to call evidence at the trial of the appellant's good character. The affidavits proved that the appellant was originally arraigned on an indictment that included charges of sexual misconduct arising from the allegations of both the complainant and K. Before the matter came on for trial, the Crown amended the indictment by excluding all counts relating to K's allegations. Some time before or during the trial, defence counsel informed the prosecutor that he intended to call evidence of the good character of the appellant. The Crown prosecutor said that, if he did, the Crown would call K to give evidence relating to the charges involving her. For this reason, defence counsel said that he decided not to call the good character evidence. He also said that it did not occur to him to seek an advance ruling. If the Crown had proceeded on the original indictment, he would have alleged collusion between the complainant and K.Court of Criminal Appeal The appellant appealed on the ground that his conviction was a "miscarriage of justice". He claimed that he had been subjected to an unfair trial because evidence of his good character, which was available, had not been adduced. James J, with whom Sheller JA agreed, dismissed the appellant's appeal. Adams J dissented. Adams J held that, if the character evidence had been led, R v Wheeler[31] would have required the trial judge to exercise his discretion under s 135 of the Evidence Act 1995 (NSW) to reject K's evidence tendered in rebuttal. The reasonable possibility of collusion between the complainant and K would have been a relevant and, perhaps, decisive consideration in exercising the discretion. His Honour characterised the failure to call good character evidence as incompetence. The incompetence had led to a miscarriage of justice that necessitated a new trial of the charges.[31]Unreported, New South Wales Court of Criminal Appeal, 16 November 1989.The appellant's case in this Court The appellant claims that a miscarriage of justice occurred because his counsel failed to obtain an advance ruling from the trial judge as to whether the evidence of K would be admitted if the appellant called evidence of good character. The appellant contends that Pt 53 r 10 of the District Court Rules 1973 (NSW) permits such a ruling. That rule permits pre-trial applications to be made in respect of a number of matters including "directions generally". Rule 11 provides for the Court to order a voir dire into "the admissibility of any evidence or as to the capacity of a witness to give evidence … before the trial Judge, at any stage of any proceedings whether before or after the jury is empanelled". The appellant submits that s 189 of the Evidence Act also supports the power to make an "advance ruling". It provides for the conduct of a voir dire for the purpose of determining whether the judge should exercise his or her discretion to exclude evidence. Additionally, s 192 of the Evidence Act permits a trial judge to give any "leave, permission or direction … on such terms as the court thinks fit".
Even if the conduct of the case is examined without regard to counsel's discretion, the appellant has failed to establish a miscarriage of justice. Although counsel's decision forfeited the advantages of good character evidence, it enabled counsel to defend the case on one front, not two. Once counsel raised good character, he would have had to contend with K's evidence. The complainant's allegations had problems. It is not clear from the material before us that K's evidence suffered from the same or similar or any problem. The jury was convinced beyond a reasonable doubt that the appellant's denials of assaulting the complainant were false. I do not think that the appellant has established a significant possibility that he would have been acquitted if he had called the good character evidence. Maybe he would have. But it is sheer speculation to think so. This Court has not seen and heard the evidence of K and the character witnesses tested in open court. Nor did the Court of Criminal Appeal make any findings concerning the credibility of these witnesses. The bare fact that the appellant could have called character witnesses provides no ground for thinking that the jury would have rejected K's evidence and used the good character evidence to conclude that there was a reasonable doubt about the complainant's evidence. I am not convinced therefore that there is a significant possibility that evidence of his good character would have caused the jury to reject K's evidence and then use the good character evidence to reject the complainant's evidence.Conclusion In determining whether the conduct of counsel has resulted in a miscarriage of justice, the "semantic exercise of trying to assess the qualitative value of counsel's alleged ineptitude"[114] is not an end in itself. A test such as "flagrant incompetence", while a convenient label that may show that a miscarriage of justice has occurred in a particular case, is unhelpful generally in determining whether there has been a miscarriage of justice within the terms of s 6(1) of the Criminal Appeal Act. Whether there has been a miscarriage of justice is the ultimate issue that the court must decide. Counsel's conduct is a sub-issue. Where counsel's conduct is in issue, the court must examine all the circumstances including the wide discretion that counsel, as an officer of the court, had to conduct the trial in the manner that he or she thought was in the best interests of the accused. If the court concludes that, despite that discretion, a material irregularity has occurred, it must determine whether there is a significant possibility that the irregularity affected the outcome. If it does, a miscarriage of justice will have occurred and the conviction must be quashed. There is no scope for applying the proviso.[114]Clinton (1993) 97 Cr App R 320 at 326 per Rougier J. In the present case, the appellant has not established that the failure to call character evidence or apply for an "advance ruling" was a material irregularity and that there was a significant possibility that, without that irregularity, the appellant would have been acquitted. The appellant's conviction was therefore not a miscarriage of justice. Order