The West Australian - - FRONT PAGE - Tim Clarke Le­gal Af­fairs Ed­i­tor

A man who spent 11 months in prison af­ter be­ing con­victed of a sex crime has been freed, had his con­vic­tion quashed and will not face an­other trial af­ter WA’s high­est court ruled his de­fence coun­sel ran his case so badly that a mis­car­riage of jus­tice oc­curred.

Steven Scott Jef­fery was con­victed last year of a sex at­tack on a 13-year-old girl, who told a court she had been touched in­ap­pro­pri­ately while sit­ting 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 that 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.

Yesterday, the case was for­mally dis­con­tin­ued by the Di­rec­tor of Pub­lic Pros­e­cu­tions, prompt­ing the Court of Ap­peal to pub­lish its rea­sons for throw­ing out the con­vic­tion.

The court crit­i­cised Mr Jef­fery’s for­mer lawyers — solic­i­tor Nick Scerri and the trial prac­ti­tioner who is not named by the ap­peal court but The Week­end West un­der­stands is vet­eran bar­ris­ter Tony El­liott.

The crit­i­cism mainly sur­rounds in­ad­e­quate ad­vice given to Mr Jef­fery about him not tes­ti­fy­ing in his de­fence, which was 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 to po­lice 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 had misiden­ti­fied when — was “com­pletely un­sup­ported by the ev­i­dence”.

“No com­pe­tent coun­sel would rea­son­ably have for­mu­lated the case the­ory which (Mr Jef­fery’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 the prac­ti­tioner’s er­ror on such a cru­cial as­pect of the de­fence case af­fected the out­come of the trial.”

Mr Jef­fery’s lawyers said yesterday they were de­lighted with the rul­ing, and were now con­sid­er­ing whether there might be re­course for com­pen­sa­tion for the time spent in cus­tody.

“It was very pleas­ing, al­though not sur­pris­ing, that our WA Court of Ap­peal has up­held one of the ba­sic prin­ci­ples of our crim­i­nal jus­tice sys­tem — the right of ev­ery per­son to a fair trial,” Mr McCusker said.

How­ever, the girl who ac­cused Mr Jef­fery said she was dev­as­tated by the out­come, and could not face tes­ti­fy­ing again.

“I feel failed by the WA jus­tice sys­tem,” she said. “Know­ing the con­vic­tion was over­turned due to his own lawyers?

“I can’t make sense of that.”

(He) ... suf­fered a mis­car­riage of jus­tice. WA Court of Ap­peal

Tony El­liott

Nick Scerri

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