AK v R

1. [1]

   BASTEN AJA: In May 2023, the applicant was found guilty of two counts of having sexual intercourse with a child then under the age of 10, one count of indecent assault on a child under the age of 16 and one count of attempted indecent assault on a child under the age of 16. The child in relation to the three completed offences (counts 1, 2 and 4) was a nephew of the applicant, aged between 4 and 5 years at the time of the two offences of sexual intercourse and between 6 and 7 years at the time of the indecent assault. The attempted indecent assault was committed on another nephew, being the younger brother of the first victim. (The persons involved will be referred to by their relationship: there is a statutory non-publication order with respect to the identity of the children.)

2. [2]

   On 22 September 2023, the trial judge, Fitzsimmons SC DCJ, convicted the applicant on each of the charges on which he had been found guilty and imposed an aggregate sentence of imprisonment for four years, six months to date from 23 April 2023 with a non-parole period of two years, four months. By an appeal filed on 5 June 2024, the applicant challenged his convictions on the sole ground that the trial had “miscarried because of counsel’s conduct of the defence”.

3. [3]

   Each of the alleged offences of sexual intercourse, and the attempted indecent assault, occurred between April 2015 and November 2016; count 4 alleged an indecent assault between 31 December 2017 and 30 November 2018. The applicant was aged 16 or 17 years at the time of the first three counts, and 19 or 20 years at the time of count 4. The applicant’s older brother, who was the father of the children, was involved in an acrimonious separation from the mother (his wife) between April 2019 when they separated and June 2020 when the mother reported to the police complaints by her children of the misconduct of the applicant. The applicant’s defence was that, in the course of a heated dispute between the father and the mother in March 2020 over a property, the mother had said, “if you don’t stop pursuing this property, I’m going to say that your brother molested the kids, and I’m going to put – and I’m going to put you out for domestic violence”. Her report to the police three months later was said to be undertaken in carrying out the threat in relation to her husband’s brother, namely the applicant.

4. [4]

   On one view, it would have been open to the jury to accept that the conversation took place and, even if it did not, to accept that the timing of the report to police was a function of the acrimonious dispute between the mother and father. However, what was less readily explained was the motive to make an untrue complaint in relation to the applicant and, if the complaint were concocted by the mother, the unusual details of the complaints involving the two young boys. For the challenge to the mother’s evidence to raise a reasonable doubt in the minds of the jury as to the offending conduct of the applicant, the credibility of the mother was, inevitably, a focal point of the trial. However, the complainants also gave evidence of the assaults on them and denied they had been told to lie to police.

5. [5]

   The subject of the appeal was the failure of the applicant’s counsel at trial to use material adverse to the mother’s credibility derived from an entirely separate set of proceedings in the Local Court and the District Court dealing with charges laid by the mother against the father for common assault in 2014, and intimidation and assault occasioning actual bodily harm in 2016. The later charges were not unrelated to those made against the applicant; they alleged that the father threatened his wife and punched her in the face after she had told him that his brother (the applicant) had sexually assaulted one of the boys.

6. [6]

   There were two aspects of this separate proceeding which were sought to be relied on as material which should have been used by trial counsel for the applicant in challenging the mother’s credibility. The first involved evidence given by the mother in the course of a summary hearing in the Local Court, which resulted in the father being acquitted of the charge as to the 2014 assault, but convicted of the 2016 charges of intimidation and assault occasioning actual bodily harm. It was not the outcome in the Local Court, but part of the evidence given by the mother during cross-examination which was sought to be relied upon. Secondly, the applicant sought to rely upon material derived from a District Court appeal brought by the father, which ended in his acquittal of the 2016 charges.

7. [7]

   Four preliminary points should be noted. First, counsel for the applicant accepted that he required leave to appeal as the single ground relied upon did not involve a question of law alone. [1]

8. [8]

   Secondly, counsel for the applicant accepted that his counsel at trial could not have relied upon the findings as to the credibility of the mother made in the Local Court or the District Court, nor the decision of the District Court to dismiss the 2016 charges. As counsel correctly noted, evidence of those matters was inadmissible at trial pursuant to s 91 of the Evidence Act 1995 (NSW). The reasons in both the Local Court and the District Court were included in the material sought to be tendered in this Court, but were to be treated as “submissions”, said to demonstrate how the credibility issue might have been seen by a jury.

9. [9]

   Thirdly, both the applicant and the Director prepared evidence for the purposes of the appeal. Each affidavit sought to annex some 460 pages of material from the Local Court proceedings, being primarily the transcript of the hearing. (Both provided single-sided copies of the material.) However, for the purposes of the hearing, only the affidavit of the solicitor for the Director of Public Prosecutions was read.

10. [10]

    As was self-evident from the nature of the exercise, the vast bulk of the transcript was irrelevant. The Court agreed to admit so much of the material as was referred to in submissions. That material is identified in a schedule to this judgment. The content of the material will be addressed below.

11. [11]

    Two other items were admitted as relevant to the dispute between the father and mother. The first was a letter dated 7 February 2020 addressed to the father, by his family law solicitors. It identified the issue as to the property settlement which was then outstanding. Secondly, the Court admitted a parenting plan signed by the father and the mother on 11 March 2020, which gave some context and content to the dispute concerning custody arrangements.

12. [12]

    In addition to that material, the Director relied upon the affidavit by the solicitor appearing for the applicant at the trial, identifying the steps he had taken in preparing for the trial, and an affidavit by counsel who appeared for the applicant at the trial. Again, the details of that material will be referred to below.

13. [13]

    Fourthly, it is necessary to identify the legal principles by which a challenge to the conduct of counsel for the accused at a trial may constitute a ground of appeal challenging a conviction. That exercise should be assayed before addressing the factual issues raised by the appeal.

Legal principles relating to conduct of counsel

1. [14]

   There have been a number of cases in which questions of appellate review on the ground of incompetence of trial counsel have been discussed. It is sufficient in this Court to refer to three. First, in R v Birks [2] Gleeson CJ stated:

2. [15]

   The Chief Justice continued, after referring to authorities supporting the last proposition: [3]

3. [16]

   Further, Gleeson CJ summarised the relevant principles in the following terms: [4]

4. [17]

   The second case, TKWJ v The Queen [5] involved a failure by counsel to call evidence of good character of the accused, where the charges related to sexual offences against the son and daughter of a woman with whom the accused was living. A failure to call evidence favourable to the accused is not necessarily the same as failing to cross-examine a prosecution witness: for example, in the case of a failure to adduce evidence, it may be relatively easy to establish what would have been said had a particular course been taken, whereas a failure to cross-examine will not necessarily lead to any clear conclusion, a factor which may be important in determining whether there has been a miscarriage of justice.

5. [18]

   In TKWJ, Gaudron J (with whom Gummow J agreed) observed that an inquiry into whether there has been a miscarriage of justice raises a question as to “whether the course taken by counsel is explicable on a basis that has or could have resulted in a forensic advantage”. [6] Gaudron J continued:

6. [19]

   To similar effect, Hayne J (with whom Gummow J also agreed) stated:

7. [20]

   Despite these comments, there are cases in which the hypothetical consideration of counsel’s conduct has been qualified by allowing evidence to be called as to whether counsel in fact considered the relevant issue, and if so, had a reason for adopting the course in fact taken. Such evidence was called in the present case, without objection.

8. [21]

   The third case is Nudd v The Queen. [7] The question of the objective nature of the exercise was revisited by Gleeson CJ in Nudd in the following passage: [8]

9. [22]

   In a further prescient observation, Gleeson CJ stated: [9]

10. [23]

    Despite the further warnings against avoiding a ‘trial of counsel’, it is convenient to set out the evidence of those representing the applicant at trial: their affidavits were read without objection and without the deponents being called for cross-examination.

Fresh evidence – trial lawyers

1. [24]

   The trial solicitor for the applicant stated that the applicant was committed for trial at Parramatta District Court on 14 April 2022. The solicitor acted for him throughout the period from his committal to the end of the trial. The trial date of 1 May 2023 was fixed 11 months in advance, on 3 June 2022. On 29 July 2022, the solicitor briefed the first counsel. Due to the continuation of another trial, the first counsel was unavailable on 1 May 2023 and there was an application to vacate the hearing date, which was refused. On Monday, 24 April 2023, trial counsel was briefed. An electronic copy of the brief was sent to him on that day. The trial solicitor was aware of the proceedings involving the father which were before the District Court on 10 February 2023. On 24 April 2023, he briefed trial counsel with the tender bundle for the District Court appeal, including the Local Court transcript and exhibits. The solicitor stated that he had discussions with trial counsel on Monday 24 April and again on Friday 28 April. He stated in his affidavit: [10]

2. [25]

   Finally, the solicitor noted that the trial did not commence on Monday 1 May, but the following day, and that he and trial counsel conferred with the applicant at the District Court on the Monday, discussing the same matters as had earlier been discussed between the lawyers.

3. [26]

   Trial counsel gave evidence that he was aware of the findings made by the District Court judge with respect to the mother, and that she had admitted in the Local Court on 27 May 2021 that she had told a “lie”. He referred to the evidence she gave in the Local Court which may have been relevant to her credibility and the risks which might attend opening up such a line of cross-examination. For reasons explained below, the evidence given provided a rational explanation for the course taken, which would have been apparent without his evidence to that effect.

4. [27]

   The primary information of significance from the lawyers’ affidavits was the pretrial history. Despite the late change in counsel, there was no submission that trial counsel did not have a sufficient opportunity to prepare for the trial, nor is that apparent from the limited evidence as to the steps taken in the week before the trial. That matter may be put to one side.

Matter not used in cross-examination

1. [28]

   The evidence in the Local Court matter was taken over six days between 28 April 2021 and 6 July 2022. The magistrate delivered her judgment on 29 July 2022. The mother’s evidence and cross-examination commenced on 28 April 2021, but the relevant evidence was given on 27 May 2021, commencing when the mother was cross-examined about a visit by a police officer on 12 June 2020 to premises on Bobin Road, Sadleir. There were two aspects of the cross-examination relied upon by counsel on the appeal.

2. [29]

   The first related to an issue as to whether the mother had assaulted the father. The following cross-examination took place: [11]

3. [30]

   The mother went to the police to make her own complaint about domestic violence and about the conduct of the applicant with regard to the children on 30 June 2020. She was asked: [12]

4. [31]

   The Court was also taken to further evidence along the same lines, although it was not the subject of complaint in the written submissions that it had not been put to the mother during the trial, nor was it clear what it was suggested should have been put.

5. [32]

   The second topic related to the property at Bobin Road, Sadleir. The cross-examination commenced with the following passage: [13]

6. [33]

   The mother was then shown a land transfer document and further questions were asked: [14]

7. [34]

   Almost immediately thereafter, in re-examination, the following exchange took place: [15]

8. [35]

   Four points are immediately evident from this material. First, the word “lie” came first from the cross-examiner, and was repeated by him. Secondly, there was a real sense in which the mother was not the owner, although the registered title included her name and that of her brother. Thirdly, the explanation given (without objection) in re-examination, if accepted, eviscerated any opprobrium which might have affected her credibility. Fourthly, her concession that she “lied” might have been seen by a jury as, if not supportive of her credibility, at least as neutral.

9. [36]

   As counsel for the applicant submitted, the District Court judge who heard the appeal from the father’s convictions took an adverse view as to the credibility of the mother, based on the “lie” as to the ownership of the property. It was noted that the judge described her evidence in re-examination as “disingenuous”. However, that showed no more than that two judicial officers had taken different views of the mother’s credibility. One saw the mother give evidence, the other did not. Whether counsel sought to challenge the mother’s credibility before a jury on the basis of that evidence, in circumstances where she would, no doubt, have had every opportunity to repeat, and perhaps improve on, her explanation, raised a question of forensic tactics, with no obvious answer. It was undoubtedly open to trial counsel to decide not to challenge the mother’s credibility on that basis. In written submissions prepared before the lawyers’ evidence was served, counsel for the applicant described the approach taken at the applicant’s trial as “inexplicable” and stated that it was “incumbent upon counsel properly to address the matter in evidence and submissions”. [16] Those comments were not persuasive, even without reference to the trial lawyers’ evidence.

10. [37]

    Separately, there was a one-line allegation, not developed in the written submissions, that counsel also “did not elicit evidence from [the father] denying that he had been violent towards his wife”. [17]

11. [38]

    The issue of domestic violence was a tangential question. The mother gave evidence of having reported domestic violence to the police. The jury may have inferred that there had been court proceedings but in circumstances where the outcome could not be given in evidence, the attempt to challenge the mother’s credibility on the basis of such a complaint would have invited a retrial of the domestic violence allegations. Their relevance would have been peripheral and a distraction from the applicant’s primary defence.

12. [39]

    That disputed domestic violence allegations between husband and wife may affect the credibility of one or both may be accepted. However, even if the mother’s credibility were adversely affected in relation to that matter, the connection between that matter and her allegations with respect to the applicant and the young children, remained obscure. It may be, as the applicant suggested, that counsel asked one question too many of the father when he elicited from him that he had been charged with domestic violence offences, without being able to adduce evidence as to the outcome. That does not demonstrate that the trial was unfair.

13. [40]

    It may be observed that the jury may have thought that a cloud hung over the father’s evidence before them in any event, as he had been questioned twice by the prosecutor, with leave of the court, as an unfavourable witness. [18]

Conclusions

1. [41]

   The applicant failed to establish that, by not challenging the credibility of the mother on the basis of evidence given in the Local Court in proceedings against the father, there was a miscarriage of justice at the applicant’s trial. An objective assessment of the evidence relied upon for this purpose readily demonstrates reasons why trial counsel took the approach that he did. To the extent that it is relevant, counsel’s affidavit evidence supported that analysis. Further, the affidavit evidence of the trial solicitor corroborated the consideration given to the issues before the trial, both in consultation with counsel and in conference with counsel and the applicant.

2. [42]

   To the extent that it was submitted that trial counsel had failed to elicit evidence from the father denying any domestic violence towards the mother, no adequate attention was given to the way the evidence was presented at trial, the risks attending a reagitation of the domestic violence proceedings and the possibility, if not the likelihood, that the father would make a poor impression on the jury.

3. [43]

   In these circumstances, there is no basis to uphold the submission that there was a miscarriage of justice. The Court should make the following orders:

   1. (1)

      Grant the applicant leave to appeal.

   2. (2)

      Dismiss the appeal.

4. [44]

   ROTHMAN J: I have had the advantage of reading the draft reasons of Basten AJA and I cannot add to its eloquent and concise statement of the principles to be applied nor any other comments. I agree with those reasons and with the orders his Honour proposes.

5. [45]

   N ADAMS J: I agree with the orders proposed by Basten AJA for the reasons provided by his Honour.