Dixon v R [2017] NSWCCA 299

Dixon v R [2017] NSWCCA 299

No miscarriage of justice arose from counsel's opening indication that the applicant would give evidence because the jury received adequate standard directions on the onus and standard of proof and the applicant's right to silence, and any additional explanation risked weakening those directions. Trial counsel was not incompetent in failing to seek a discharge or specific direction, because any prejudice was not established and the applicant's change of course arose from his own decision. The summing up was not inadequate: the trial was short, the single issue was the complainant's credibility, the defence address had just been given, the judge did not unfairly summarise one side over the...

Jurisdiction
Australia
Judgment Date
15 December 2017
Procedural Posture
Appeal Against Conviction / Application for Leave to Appeal and Appeal in the Court of Criminal Appeal Following Conviction by Jury in the District Court of New South Wales
Outcome
As to ground 1, leave under r 4 refused; as to grounds 2 and 3, leave to appeal granted; appeal dismissed.
Legal Topics
['appeal Against Conviction' 'miscarriage of Justice' 'incompetence of Trial Counsel' 'right to Silence' 'summing Up to Jury' 'failure to Put Defence Case' 'child Sexual Offences' 'complaint Evidence' 'expert Evidence']
['criminal Law' 'criminal Procedure' 'evidence'] ['appeal Against Conviction' 'miscarriage of Justice' 'incompetence of Trial Counsel' 'right to Silence' 'summing Up to Jury' 'failure to Put Defence Case' 'child Sexual Offences' 'complaint Evidence' 'expert Evidence']

Case Brief

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Procedural Posture

Appeal Against Conviction / Application for Leave to Appeal and Appeal in the Court of Criminal Appeal Following Conviction by Jury in the District Court of New South Wales

Legal Issues

  1. 1 ["Whether defence counsel's opening statement that the applicant would give evidence, followed by the applicant not giving evidence, resulted in a miscarriage of justice." "Whether trial counsel was incompetent in failing to seek a discharge of the jury or a specific direction after the applicant did not give evidence despite counsel's opening remarks." 'Whether the trial judge failed to put the defence case properly to the jury in the summing up, resulting in a miscarriage of justice.' 'Whether leave under r 4 of the Criminal Appeal Rules should be granted for the ground concerning the alleged inadequacy of the summing up.']

Ratio Decidendi

No miscarriage of justice arose from counsel's opening indication that the applicant would give evidence because the jury received adequate standard directions on the onus and standard of proof and the applicant's right to silence, and any additional explanation risked weakening those directions. Trial counsel was not incompetent in failing to seek a discharge or specific direction, because any prejudice was not established and the applicant's change of course arose from his own decision. The summing up was not inadequate: the trial was short, the single issue was the complainant's credibility, the defence address had just been given, the judge did not unfairly summarise one side over the...

Court Disposition

As to ground 1, leave under r 4 refused; as to grounds 2 and 3, leave to appeal granted; appeal dismissed.

Orders

  • ['As to ground 1, leave under r 4 refused.' 'As to grounds 2 and 3, leave to appeal granted.' 'Appeal dismissed.']