Cornelius Stevens v Emily Mccallum  ACTCA 13 (Higgins CJ, Crispin P and North J)
You can overturn your conviction if you can establish that by virtue of the incompetence of your counsel, your conviction was occasioned by a miscarriage of justice in the sense that you missed out on a substantial chance of acquittal. Whatever other scare tactics may be employed in favour of the preservation of the immunity, I believe it is true that counsel are less likely to cooperate in such appeals if the prospect of liability is attached to such cooperation.
The incompetence of counsel is a ground of appeal only in the criminal realm, and that is the only good reason in my mind for distinguishing between criminal and civil justice in considering advocates’ immunity. In this case, the Court’s contempt for the job done by the barrister was underscored by the language of the joint judgment, which included the words “blundered”, “egregious”, and “quixotic pilgrimage”, and the conviction was overturned because “the incompetent conduct of counsel led to the tender of the only evidence sufficient to convict the accused.” I have reproduced the whole of the Court’s summary of the relevant law below.“Incompetence of Counsel
 We are grateful for the full analysis of this issue provided by both counsel but particularly by the Director of Public Prosecutions.
 Reference was made to R v McIntyre  NSWCCA 6; 111 A Crim R 211. In that case, counsel had engaged in extremely offensive and improper comments and abuse directed towards the Crown prosecutor and the judge, some of it in front of the jury. Hulme J (Sully and Hidden JJ agreeing) could only describe it as “appalling” (at 214-5). His Honour concluded at 218 —
It does not follow that misconduct by counsel necessarily entails that the trial in which it occurred was unfair, or that there has been a miscarriage of justice.
 In fact, there were in McIntyre other grounds to set aside the verdict recorded and to quash the conviction so that it was unnecessary to rule on the issue as to the effect the conduct of counsel had on the fairness of the trial.
 Contrary to the respondent’s submission, there was, in fact, no finding that counsel’s conduct had led to an appel-lable miscarriage of justice, though it had been seriously prejudicial to the accused’s prospects (if any) for acquittal.
 R v TJF  NSWCCA 127; 120 A Crim R 209 (Beazley JA, Studdert and Sperling JJ) was a case of sexual assault. Studdert J delivered the judgment of the Court. A ground of appeal relied upon the incompetence of counsel in failing, inter alia, to apply for separate trials.
 Reference was made to the guiding principles expressed by Gleeson CJ in R v Birks (1990) 19 NSWLR 677 at 685. Those relevant principles, may be summarised as follows —
- A Court of Criminal Appeal has a power and a duty to intervene in the case of a miscarriage of justice, but what amounts to a miscarriage of justice is something that has to be considered in the light of the way in which the system of criminal justice operates.
- As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence.
- However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of “flagrant incompetence” of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with preci-sion. When they arise they will attract appellate intervention.
 The complaint of incompetence did not succeed in TJF though other complaints were upheld.
 Another case referred to was R v Hunter and Sara  NSWCCA 5; 105 A Crim R 223. Again, a failure to ask for separate trials had been relied upon as demonstrating incompetence leading to a miscarriage of justice.
 Wood CJ at CL (Meagher JA and Dunford J concurring) agreed serious errors had been made by counsel and concluded that a miscarriage of justice had occurred in respect of the appellant, Hunter. Counsel had represented both, despite a clear conflict between the two accused. For example, no independent advice was given about Hunter raising his good character. The concatenation of a variety of egregious errors was sufficient to support the complaint that a mis-carriage of justice had occurred. However, the case against Hunter was also adjudged to be unsafe and unsatisfactory. It was clear that the question whether incompetence of counsel has led to a “miscarriage of justice” must be looked at in the context of the entire case.
 In R v Wakim  2 VR 46, Winneke ACJ observed (at 53) —
Decisions made during a trial as to tactics to be employed are decisions which depend on the judgment of counsel who is in a far better position to make those decisions than is this court. That is why such decisions, even if we believe them from our vantage point to be unwise or unsound, will almost never found a successful appeal on grounds of miscarriage: see Re Knowles  VR 751; R v Miletic  1 VR 593 at 600.
 Ashley AJA expressed the test, somewhat dramatically, but effectively, as (at 51) —
Where the conduct of counsel at trial, particularly in making a tactical decision, is called into question, I consider that, most often, a value judgment of like character must be made [that is, of like character to manifest excessiveness of sentence] by an appellate court. Cases where what Mr Kent [for the applicant] called the “shock factor” — an instinctive recoiling from what was done — is present will, if and when they occur, define themselves as cases in which intervention by an appellate court is proper — provided, of course, that the “shock factor” or reaction is present when the matter is considered from the perspective of a decision made at trial rather than with the excellence of vision which hindsight gives.
 An appellant, of course, carries the onus of persuading the court that such a miscarriage of justice has occurred, that is, that a substantial chance of acquittal has been unfairly lost.
 In TKWG v R (2002) 212 CLR 124, counsel’s decision not to call character evidence was called into question. Counsel had been told by the Crown counsel that, if such evidence was called, the latter would respond by calling evi-dence of similar facts, not otherwise admissible, alleging sexual acts by the accused against the complainant’s sister. Defence counsel did not seek a judicial ruling on the proposal.
 Gleeson CJ considered that that decision, though, with hindsight, perhaps wrong, could not be regarded as other-wise than understandable. The trial judge had no obligation to give an advance ruling though he should, perhaps, have been asked. His Honour concluded (at 130) —
… in the context of the adversarial system of justice, unfairness does not exist simply because an apparently rational decision by trial counsel, as to what evidence to call or not to call, is regarded by an appellate court as having worked to the possible, or even probable, disadvantage of the accused. For a trial to be fair, it is not necessary that every tactical decision of counsel be carefully considered, or wise.
 Gaudron J pointed out that the question of whether an accused was not competently or adequately represented “poses particular difficulties for an appellate court” (132).
 Her Honour also addressed the question as to whether counsel’s tactics may have been designed to obtain a foren-sic advantage or avoid a forensic disadvantage. At 133, she said —
Where decisions taken by counsel contribute to a defect or irregularity in the trial, the tendency is not to inquire into counsel’s con-duct, as such, but, rather, to inquire whether there has been a miscarriage of justice …
As already indicated, if there is a defect or irregularity in the trial, the fact that counsel’s conduct is explicable on the basis that it resulted or could have resulted in a forensic advantage is not necessarily determinative of the question whether there has been a miscarriage of justice. It may be that, in the circumstances, the forensic advantage is slight in comparison with the importance to be attached to the defect or irregularity in question. If so, the fact that counsel’s conduct is explicable on the basis of forensic advan-tage will not preclude a court from holding that, nevertheless, there was a miscarriage of justice.
 To like effect were the separate judgments of McHugh and Hayne JJ.
 The essential principle affirmed in this case is that it is often difficult to speculate on why counsel may or may not have adopted a particular course. If it appears evidently forensically defensible, that would militate against there having been a miscarriage of justice.
 A more recent decision, handed down after argument in this case was concluded, is Nudd v R  HCA 9 ; 80 ALJR 614. In that case, counsel and solicitor for the accused were alleged to have failed to obtain relevant instructions, to have understood the elements of the offence and to have considered applicable judicial decisions.
 There was little doubt but that the legal representation was woefully inadequate and incompetent. However, the case against the appellants, even allowing that some evidence might have been excluded by competent counsel object-ing to it, was overwhelming.
 The approach of the members of the Court varied, though all agreed that the appeal should be dismissed.
 All agreed that, if the accused had been deprived of a substantial, not fanciful, chance of acquittal by reason of the effect of counsel’s incompetence (or any other irregularity) then the verdict could not stand. It would be the result of a miscarriage of justice.
 Gleeson CJ, however, pointed out that not all failures in due process need to lead to a clearly unsafe or unsatisfactory result to render the verdict appellable. At  he said–
… Even though it is impossible and undesirable to attempt to reduce miscarriages of justice to a single formula, there is at least one circumstance in which a failure of process cannot be denied the character of a miscarriage of justice on the ground of the appellate court’s view of the strength of the prosecution case. That is where the consequence of the failure of process is to deprive the appel-late court of the capacity justly to assess the strength of the case against the appellant. There may be other circumstances in which a departure from the requirements of a fair trial according to law is such that an appellate court will identify what occurred as a mis-carriage of justice, without undertaking an assessment of the strength of the prosecution case. If there has been a failure to observe the conditions which are essential to a satisfactory trial and, as a result, it appears unjust or unsafe to allow a conviction to stand, then the appeal will be allowed.
 Further at  —
… Justice, however, means justice according to law, and the observance of the requirements of law according to which a criminal trial is to be conducted has a public as well as a private purpose.
 His Honour pointed out, also, that the question of incompetence of counsel is not a pejorative reflection on the skill or learning of the particular legal practitioners concerned, though that could explain the impugned conduct. Rather, it is the acts and omissions themselves as they impact on the fairness of the trial. To that end, it may be relevant to un-derstand why a particular course was taken (see [9-11]). However, the focus of the inquiry is not a critique of the advo-cacy skills or performance of trial counsel but rather whether the result constitutes a miscarriage of justice.
 It is also significant that, his Honour had regard to the enactment of constitutional or quasi-constitutional rights to due process. O’Connor J in Strickland v StateWashington (1984) 466 US 668 at 687 is, for example, cited saying —
This [the constitutional right] requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, [that is] a trial whose result is reliable … a break down in the adversary process that renders the result unreliable.
 That consequence, in an Australian context, might be satisfied, say, by counsel wrongly advising that an accused could not give evidence. McHugh J in TKWG (above) was cited with approval making reference to (hopefully) rare cases where the incompetent performance of counsel is so extreme as itself to constitute a denial of due process that may itself render the entire process defective.
 It may be taken from this that, whilst the inquiry as to competence of counsel is purely objective, and the main focus is whether a miscarriage of justice in the sense of a wrongful conviction has, or may have, occurred, there may be cases where the errors of counsel have caused or contributed to a denial of due process which itself is a sufficient affront to the rights of an accused person to require the setting aside of the proceedings.
 Also in Nudd (above), Gummow and Hayne JJ emphasised the objective nature of the enquiry, at  —
… the inquiry about miscarriage must be an objective inquiry, not an examination of what trial counsel for an accused did or did not know or think about. The critical question is what did or did not happen at trial, not why that came about.
 Their Honours did not find it necessary to consider whether a right to due process emerged from Ch III of the Constitution, breach of which might constitute an appellable error even absent the apparent loss of a fair and reasonable chance of acquittal.
 Callinan and Heydon JJ cited Gaudron J in TKWG (above) with approval in emphasising the need for an objective assessment of the conduct of the trial “and whether, so viewed, the course taken by counsel was capable of explanation” (Nudd at — ).
 Their Honours accepted that, on no view of it, could counsel’s conduct at trial have been other than seriously in-competent, and concluded at  —
This is a case which does cause concern. It is most unfortunate that a person charged with such a serious crime as the appellant was, should come to be represented by a person whose competence fell short of the standard which a court should be entitled to ex-pect. However, just as in medicine there may be terminal cases which not even the most brilliant surgeon can remedy, there will be prosecution cases which an accused could not successfully defend with the aid of the most resourceful and competent of counsel. We have come to the conclusion that this was such a case. That does not mean of course that a person against whom the case is a very strong one, is not entitled to a fair trial. But unlike in the operating theatre, there is in the criminal court a suitably qualified judge, detached from the protagonists and whose duty it is to intervene and make such corrections as need to be made to ensure a fair trial. Trial judges may only correct errors that become apparent to them, but in this case such errors as might otherwise have caused the trial to miscarry, were duly corrected by way of her Honour’s summing up and insistence that instructions be duly obtained.
 The role of the trial judge, it is apparent, cannot be overlooked and, of course, the scope for such correction of incompetent acts or omissions is greater where the trial is by judge alone. The errors of counsel in the present case, in tendering Ex 3, included failing to submit that its use be restricted to possible contradiction of Ms Hieser in the event of evidence being given by her contrary to the appellant’s version of events and introducing prejudicial material for no useful forensic purpose. Those errors went to the heart of the decision making process her Worship undertook. In so far as those errors should have been corrected by her Worship, they were not. Whilst it cannot be suggested that her Wor-ship was at fault in not doing so, it has resulted in a miscarriage of justice. To that result, the prosecution had contrib-uted by itself seeking to adduce evidence of the making of a statement by Ms Hieser, the content not, however, being then tendered, leaving defence counsel with a dilemma as to whether it should be exposed to the court by way of tender of it — so that it could be then raised as a contradictory version with Ms Hieser — or leaving it till later to have it in evi-dence, assuming that course still to be then open, or undertaken. The competent course would have been to wait and see what Ms Hieser said and then cross-examine on any prior inconsistent statement that emerged. If there was none, then refraining from any cross-examination would have left the prosecution with no case.
 It is instructive to note the approach of Kirby J in Nudd (above). His Honour found recognition of, at least, an implicit assumption of a right to the provision of competent legal counsel in Dietrich v R (1992) 177 CLR 292; TKWG (above) and D’Orta-Ekenaike v Victoria Legal Aid (2005) 79 ALJR 755 ; 214 ALR 92.
 His Honour also made reference to Tuckiar v R (1934) 52 CLR 335 where the incompetence of trial counsel had been so egregious that the accused was discharged on appeal (see Nudd  — “Starke J concluded that the accused had been denied the substance of a fair trial”). Kirby J acknowledged that the incompetence exhibited by Nudd’s counsel was “serious”.
 His Honour rejected the suggested test that, to vitiate the trial the incompetence of counsel had to be “flagrant” or “radical”, as “unilluminating” . He noted, particularly relevantly to this Territory, that the position in the United Kingdom now reflected the influence of Art 6 of the European Convention on Human Rights (guaran-teeing the right to a fair trial). Reference was made to the observation of Henry LJ in R v Peeris  EWCA Crim 597 —
… the proper approach does not depend upon any assessment of the quality or degree of any suggested culpability of counsel. It de-pends rather on consideration of whether the manner in which the defence was conducted — taken exclusively or in conjunction with other features of the case — was such as to raise any sensible doubt about the safety of the conviction.
 A similar approach, his Honour concluded, arose from a consideration of United States, Canadian and New Zealand authorities.
 Nevertheless, a question remained whether, even if it appears that the conviction was not unsafe, — at  —
… the affront to the appearance of justice in the trial is such that a fair trial was not had, requiring a retrial, in effect to uphold the integrity of the judicial process?
 Kirby J supported the opinion of McHugh J in TKWG (above), at 148  —
In some cases, the conduct of counsel may be such that it has deprived the accused of a fair trial according to law … No matter how strong the prosecution case appears to be, an accused person is entitled to the trial that the law requires. In principle, therefore, where the trial has been unfair, the accused should not have to show that counsel’s conduct might have affected the result.
 Kirby J also supported that approach by reference to the provisions of the International Convenant on Civil and Political Rights (ICCPR). The fact of Australia’s accession to that Covenant and First Optional Pro-tocol may, elsewhere than in this Territory, merely require regard to be had to the relevant terms of the Covenant.
 In this Territory, by virtue of s 21(1) of the Human Rights Act 2004 (HR Act), reflecting Art 14.1 of the ICCPR —
Everyone has the right to have criminal charges, and rights and obligations recognised by law, decided by a competent, independ-ent and impartial court or tribunal after a fair and public hearing.
 Those rights are both recognised and enforceable (see R v YL  ACTSC 115; Skaramuca v Craft  ACTSC 61; SI bhnf CC v KS bhnf IS  ACTSC 125). There is, of course, no specified remedy for breach but, in proceedings of the kind now under consideration, the action required to remedy a breach of s 21(1) (HR Act) is simply to declare the impugned trial to have miscarried, set aside the verdict and sentence and remit the matter for a hearing according to, and not contrary to, law.
 Kirby J explained and emphasised the implications arising from Art 14.1 (ICCPR) (and s 21(1) HR Act) at [93-94] —
The Human Rights Committee of the United Nations, determining communications complaining about non-compliance with such provisions, has explained that they imply a guarantee of adequate, proper or effective legal representation. The more serious the case and grave the potential punishment upon conviction, the greater is the obligation of the State party to ensure against incompe-tence in representation by providing the time and resources necessary to prepare an effective defence, so far as this is available. The ICCPR and the elaboration of it by the independent treaty body, afford a useful reminder of the ambit of the obligation to ensure a fair trial for the criminal accused. The notion imports assumptions of basically competent representation without the need invaria-bly to prove that any incompetence demonstrated actually altered the outcome.
Because fundamental rights belong to individuals, their provision is not necessarily confined to cases where their deprivation re-sults in adverse consequences that might not otherwise have occurred. Upholding fundamental rights, when applicable, will some-times have a value in itself. This may be so quite apart from the beneficial consequences of their observance for those immediately affected.
 For this Territory, the decisions of the Canadian Court of Appeal for Ontario (R v Joanisse (1995) 102 CCC (3rd) 35); The Supreme Court of New Zealand (Sungsuwan v R  NZSC 57) and the Privy Council (Teeluck v State of Trinidad and Tobago  1 WLR 2421 (PC)), in so far as they derive support from the ICCPR or the ECHR, have special resonance. It follows that, in this Territory, at least under Territory law, it is not necessary to establish positively that a miscarriage of justice has occurred, if due process has been denied and a right to a fair trial lost.
 It is important to note that merely to conclude that counsel had acted incompetently is a necessary but not a suffi-cient condition for concluding that due process has been denied. Our conclusion is that it is not “invariably necessary” to show that the outcome would have been different to establish that the result cannot stand as a result of the right to a fair trial having been denied.
 It is to be noted, of course, that if, as in Nudd, it positively appears that a conviction was, notwithstanding the de-fects in the trial process, inevitable, a breach of the right to a fair trial may not suffice to require that the result be set aside.
 In the present case, the incompetent conduct of counsel led to the tender of the only evidence sufficient to convict the accused.
 It was not necessary to go further and show that it might, or even probably would, have been rendered admissible by the prosecutor, though it is, at least, unlikely that it could lawfully have been so tendered, as appears below.”
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