BB v R

THE COURT: At the conclusion of the hearing on 23 November 2015, the Court granted leave to appeal against conviction, allowed the appeal, quashed the conviction and sentence and ordered a retrial. What follows are our reasons for those orders.

The applicant BB, who cannot be named by reason of s 578A of the Crimes Act 1900 (NSW), was convicted after a trial before the primary judge and a jury of 12 lasting 14 days, on seven of nine counts of an indictment presented against him related to events between 1993 and 2000, all involving the same female complainant, who at the time was aged between six and 12. BB was found not guilty of one count of sexual intercourse and one count of indecent assault relating to an allegation at the Jenolan Caves. The primary judge imposed an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) of imprisonment for a period of 10 years with a non-parole period of six years, commencing on 9 August 2013 following the refusal, after his conviction, of bail.

BB sought leave to appeal against both his conviction and the severity of the sentence. A notice of appeal was not filed until 26 March 2015. At the commencement of the first day of the hearing, on 17 August 2015, the appeal against sentence was formally withdrawn.

The principal ground of appeal, and the only ground which need be mentioned for present purposes, was the allegation of flagrant incompetence of trial counsel, so as to engage the principles in R v Birks (1990) 19 NSWLR 677. It should be emphasised that, in cases such as this, it is not sufficient simply to point to some failing, even a gross failing, of the legal representative who appeared at trial. Even where incompetence to the relevant standard is demonstrated, it is also necessary to demonstrate a significant possibility that the acts or omissions of which complaint is made affected the outcome of the trial: see TKWJ v The Queen [2002] HCA 46; 212 CLR 124 at [33], [79], [101] and [104] and Nudd v The Queen [2006] HCA 9; 80 ALJR 614 at [24]; more recent decisions are collected and considered in Tsiakas v R [2015] NSWCCA 187 at [42]-[45].

There were a number of aspects of counsel’s conduct supporting that ground, but only one need be mentioned for present purposes.

The accused was a person of good character, and it was established that there were at least 19 people who were willing and able to provide character evidence for him at the trial. Indeed, written references from them were relied upon at his sentencing hearing. Nothing was said to the jury about the accused’s good character. If his character had been raised, the trial judge would have directed the jury that it was relevant to their assessment as to whether the accused committed the offences charged and also relevant to their assessment of the credibility of the evidence he gave denying those offences.

The solicitor and barrister who acted for the applicant at trial both swore affidavits and were cross examined, both on 17 August and 23 November 2015.

The cross-examination of the witnesses on the first day of the appeal took longer than had been anticipated. At the heart of the cross-examination was why evidence of good character had not been placed before the jury. The solicitor gave evidence that that was in accordance with the written instructions of his client. The appeal was adjourned to permit the file to be produced and examined. A range of earlier dates was offered by the Court for the adjourned hearing, but 23 November was the first date convenient to the parties.

During the adjournment, the file was produced on subpoena issued by the Crown and examined by both parties. No copy of the written instructions could be found. There was no explanation for the absence of the document.

In supplementary written submissions filed shortly prior to the resumed hearing, the Crown made the following concession:

When the hearing resumed, following further cross-examination of the former counsel and solicitor, it was plain that the question of whether or not written instructions concerning character evidence had been obtained could not confidently be determined.

A further aspect of the evidence relating to the course taken at trial may be noted. The former solicitor gave evidence when cross-examined in August that the reason character evidence was not tendered was that “one of the issues was cost. That was the main issue that I remember”.

He went on to say:

Further evidence was obtained during the adjournment and read in this Court when the hearing of the appeal resumed in November. The uncontroverted evidence before this Court was that funds were available both from the family, and from a family friend (who eventually took the file from the former solicitor). The unchallenged evidence included records from financial institutions disclosing withdrawals of money to pay the legal team. Moreover, the notion that introducing good character evidence would cause the trial to “blow out” by many days is intrinsically improbable. The former barrister also gave the following evidence:

The Court invited counsel for the applicant to address on the hypothesis that, in accordance with the recollection of the solicitor, his client had given written instructions not to elicit good character evidence. Counsel for BB submitted that those instructions must have been obtained on advice, and the advice given by either or both the former barrister and solicitor was flagrantly incompetent for the following reasons. First, any attempt by the Crown to lead bad character evidence would have required leave. Secondly, it was far from clear that the Crown had in its possession any bad character evidence. Thirdly, at the minimum, it would have been open to trial counsel to elicit from the officer in charge that the applicant had no convictions, and to obtain from the trial judge a direction that in light of the applicant’s good character, his evidence should more readily be accepted. The former counsel for the applicant acknowledged that, subsequent to this trial, he had changed his practice in terms of consulting with Crown prosecutors as to the availability of bad character evidence. His recollection was unclear, but the impression derived from his evidence was that he made no effort to ascertain whether the Crown had, in fact, any bad character evidence.

The Crown was invited to address on the same assumption:

The Crown’s concessions were properly made (and, it may be said, entirely in accordance with the role of the Crown in a case such as this). Either BB gave instructions about not calling character evidence or he did not. If he did not give those instructions, and his lawyers nevertheless declined to take any step to put his good character before the jury, they were flagrantly incompetent. If BB did give instructions, it may readily be inferred in a case such as this that those instructions were the subject of advice, and the advice itself was flagrantly incompetent (there is no suggestion in the documents, or in any of the affidavit or oral evidence by BB’s former lawyers, to conclude that BB made an informed decision, contrary to advice, not to rely on his good character). In either case, the incompetence was such that it engaged the principles in TKWJ, Nudd and Tsiakas referred to above.

Only in relatively extreme cases will this Court be satisfied that the departure from the ordinary standards of care by lawyers acting for the defence in a prosecution is such that a jury’s conviction must be overturned. This is such a case. In this case, the Crown in substance conceded, very properly, that (a) even if written instructions had been obtained from the client not to elicit character evidence, it was very difficult to justify how the advice preceding those instructions could have been other than flagrantly incompetent, and (b) there was a significant possibility that the applicant’s conviction was the result of the decision not to introduce the applicant’s good character.

In those circumstances, it is neither necessary nor appropriate to canvass any of the other issues raised in the course of the appeal, or, for that matter, the nature of the Crown case. BB has established that this is a case where his representation at trial was so incompetent that there is a significant possibility that it affected the jury’s guilty verdict. For those reasons, the Court made the orders indicated above at the conclusion of the hearing of the appeal.