White v The Queen - [2018] NSWCCA 1

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: White v R [2018] NSWCCA 1
Hearing dates: 1 September 2017
Date of orders: 12 January 2018
Decision date: 12 January 2018
Before: Hoeben CJ at CL at [1]
Davies J at [2]
Bellew J at [103]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords: CRIMINAL LAW - sexual intercourse without consent and three counts of indecent assault – farmer on remote property – female backpacker farm worker – whether miscarriage of justice by incompetence of counsel – applicant not called to give evidence at trial – whether applicant advised of right to give evidence -applicant with cognitive and memory deficits - whether conviction was inevitable if not called – credibility issues concerning complainant – whether decision not to call applicant was a rational decision – whether Crown Prosecutor’s address invited reasoning involving a reversal of onus – where complainant’s credibility in issue – where address pointed to matters supporting credibility of complainant - no objection taken or application made by defence at trial – Rule 4 applies to refuse leave to raise ground on appeal
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Evidence Act 1995 (NSW)
Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW)
Cases Cited: Azzopardi v R (2001) 205 CLR 50; [2001] HCA 25
Brown v R [2008] NSWCCA 306
Doe v R [2008] NSWCCA 203; (2008) 187 A Crim R 328
Ignjatic v R (1993) 68 A Crim R 333
Kho v R [2012] NSWCCA 71
MB v R [2009] NSWCCA 200
Mraz v the Queen (1955) 93 CLR 493
Nudd v The Queen [2006] HCA 9; 80 ALJR 614
Palmer v The Queen (1998) 193 CLR 1; [1998] HCA 2
R v Birks (1990) 19 NSWLR 677
R v McLean [2001] NSWCCA 58; (2001) 121 A Crim R 484
R v Smith [1999] NSWCCA 126
R v Szabo [2000] QCA 194; (2000) 112 A Crim R 215
South v R [2007] NSWCCA 117
TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
Category: Principal judgment
Parties: Leslie White (Appellant)
Crown (Respondent)
Representation:
Counsel:
D Dalton SC & J Kellaway (Appellant)
D Kell SC & M Pulsford (Respondent)
Solicitors:
SJT Law (Appellant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2013/387951
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

Nil

Date of Decision:

13 December 2016

Before:

Lerve DCJ

File Number(s):

2013/387951

Judgment

HOEBEN CJ AT CL: I agree with Davies J
DAVIES J: The applicant stood trial before his Honour Judge Lerve and a jury of 12 on four counts, one of sexual intercourse without consent and three counts of indecent assault. He was convicted on all four counts. On 13 December 2016 he was sentenced as follows:

Count 1 (sexual intercourse without consent): Imprisonment for three years commencing 13 December 2016 and expiring…

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 White v The Queen

Details

AGLC: White v The Queen [2018] NSWCCA 1
Case: [2018] NSWCCA 1
Decision Date: 12 January 2018

CaseChat Overview and Summary

The case of White v The Queen involved an appeal against a conviction for sexual intercourse without consent and three counts of indecent assault. The applicant, a farmer, was charged for acts committed against a female backpacker who was working on his remote property. The trial judge found the applicant guilty and sentenced him to imprisonment. The High Court of Australia heard the appeal against the conviction, considering whether there was a miscarriage of justice due to the incompetence of counsel, particularly the failure to advise the applicant of his right to give evidence.

The primary legal issues before the Court were whether the applicant's counsel was incompetent in not advising him to give evidence at trial and whether this amounted to a miscarriage of justice. Additionally, the Court examined whether the decision not to call the applicant was rational, given his cognitive and memory deficits, and if the Crown Prosecutor's address invited reasoning that involved a reversal of the onus of proof. The Court also considered the credibility of the complainant and whether the decision not to call the applicant was a rational one.

The Court found that the decision not to call the applicant was a rational one, as his cognitive and memory deficits made it unlikely that his evidence would have assisted the defence. The Court held that the applicant's counsel was not incompetent in not advising him to give evidence, as the decision not to call him was rational. The Court also found that the Crown Prosecutor's address did not invite reasoning that involved a reversal of the onus of proof. The Court concluded that the applicant's conviction was safe, and the appeal was dismissed.

No orders were made by the Court, as the appeal was dismissed. The conviction and sentence of the applicant remained in place.

Orders