A man who spent 11 months in prison after being convicted of a sex crime has been freed from prison, had his conviction quashed and will not face another trial, after WA’s highest court ruled his defence counsel ran his case theory so badly that a miscarriage of justice had occurred.
Steven Scott Jeffery was convicted last year of a brazen sex attack on a young teenage girl, who told a court she had been touched inappropriately while sat at a lunch table surrounded by adults and other children.
But Mr Jeffery vehemently denied the offence had taken place – even after a jury convicted him of the crime, and he was jailed for three years.
Shortly after the conviction, he launched an appeal – partly on the basis his experienced lawyers had run his case incompetently.
And in a rare ruling from the WA Court of Appeal, three judges agreed with the argument put forward by former WA governor Malcolm McCusker, and ordered a retrial.
Today, the case was formally discontinued by the WA Director of Public Prosecutions, prompting the Court of Appeal to publish their reasons for throwing out the conviction.
And in them, they were critical of Mr Jeffery’s former lawyers — solicitor Nick Scerri, and the trial practitioner, who the appeal court does not name but The West Australian understands is veteran barrister Tony Elliott – the president of the Criminal Lawyers’ Association of Western Australia.
Their criticism mainly surrounds inadequate advice given to Mr Jeffery about him not testifying in his own defence, which was only finalised on the run, during a lunch break in-trial — meaning the jury never heard him directly deny the offence.
That was because his repeated denials in a recorded police interview were also not played in court.
The appeal court also said the defence’s “case theory” run before the jury — that the girl had been sexually abused at a lunch table at some stage, but she had misidentified when — was “completely unsupported by the evidence”.
“No competent counsel would reasonably have formulated the case theory which the Practitioner (Mr Jeffrey’s barrister) put before the jury in his opening statement and which he developed and pursued throughout the trial,” the court of appeal said.
“No rational forensic justification can be discerned for counsel’s strategy. Indeed, the only conclusion reasonably open in the circumstances is that counsel’s strategy is incapable of rational explanation on forensic grounds.
“The appellant has suffered a miscarriage of justice. There is a significant possibility that the Practitioner’s error on such a crucial aspect of the defence case affected the outcome of the trial.”
Mr Jeffery’s lawyers today said were delighted with the outcome, and were now considering whether there might be an recourse for compensation for the time spent in custody.