Counsel’s discretion as to trial tactics

Joseph Vella purchased a knife and a black beanie and then turned up to his estranged wife’s door two days later in their company.  In his quiver he also sported a baseball bat.  He bashed her head in with the bat and then slit her throat with the knife.  Charged with murder, he admitted the acts, but his defence was that he had gone to the wife’s home to tell her that he would take the kids on New Year’s Eve so she could go out, but that she had provocatively told him that he would never see his kids again, whereupon — what’s a bloke to do? — he laid into her, though not with the intention of finishing her off.  He was jailed, but appealed to the Court of Appeal and then sought leave unsuccessfully to the High Court.  His appeals raised aspects of his counsel’s conduct of his defence, apparently the same ones focussed on in the disciplinary complaints referred to below against his counsel.

Appeals exhausted, Mr Vella turned his attentions to his lawyers.  He lodged a disciplinary complaint about the prosecutor.  The Western Australian disciplinary body did not lodge a prosecution as a result and Mr Vella sought a review of that decision.  He failed: Vella and Mactaggart [2011] WASAT 28.  Interestingly, the prosecutor represented himself before the disciplinary tribunal.  Mr Vella lodged a disciplinary complaint about his own counsel.  Again, the disciplinary body did not lodge a prosecution in response, and Mr Vella sought a review of that decision.  Again he failed: Vella and Bowden [2011] WASAT 56. This time, the barrister retained solicitors and counsel to represent him.  Mr Vella also lodged a complaint alleging overcharging, which gave rise to a taxation.

The complaint against his own counsel was that he had failed to follow Mr Vella’s instructions.  His counsel had, for example, failed to seek out evidence as to his wife’s infidelity.  The barrister had considered such evidence as irrelevant, as Mr Vella was ignorant of the infidelity at the time of the homicide, and so it could not have been relevant to his state of mind.  And his counsel had declined to run a case theory that the wife had engaged in a course designed to have Mr Vella assault her, so that she could label him a ‘bad person’, get the kids in the custody battle, and so get the 80% of the matrimonial assets she was looking for in a matrimonial property dispute.  Western Australia’s State Administrative Tribunal said that such a case theory was ‘preposterous’ so that the barrister had done his client a service by not running with it.  This was not a case where the barrister had acted in contravention of Mr Vella’s instructions, as in R v McLoughlin [1985] 1 NZLR 106: Mr Vella had instructed in writing:

‘Please let me make this clear, I am not in the least trying to suggest what our strategy should be! I am leaving that up to you. This is a game I don’t even know the rules of let alone how it should be played! … So as far as strategy etc I will take your advice.’

The Tribunal affirmed the disciplinary body’s finding that there was no reasonable likelihood that the Tribunal would find the barrister guilty of unsatisfactory professional conduct or professional misconduct, approving this passage from Professor Dal Pont’s text Lawyers’ Professional Responsibility (4th ed, 2010) at [17.40]:

‘A lawyer pressed by clients to ‘make every point conceivable and inconceivable without judgment or discrimination’ must exercise professional judgment so as ‘not to use public time in the pursuit of submissions which are really unarguable’. This does not mean refraining from pursuing points unlikely to succeed, but that the lawyer must determine those points that are reasonably arguable and jettison the rest. Mason CJ made the point as follows in Giannarelli v Wraith:

“[I]t is that a barrister’s duty to the court epitomizes the fact that the course of litigation depends on the exercise by counsel of an independent discretion or judgment in the conduct and management of a case in which he has an eye, not only to his client’s success, but also to the speedy and efficient administration of justice. In selecting and limiting the number of witnesses to be called, in deciding what questions will be asked in cross­ examination, what topics will be covered in address and what points of law will be raised, counsel exercises an independent judgment so that the time of the court is not taken up unnecessarily, notwithstanding that the client may wish to chase every rabbit down its burrow.”‘

The Tribunal also referred approvingly to Chief Justice Gleeson’s comment in Ali v The Queen (2005) 214 ALR 1 at [6] that:

‘It is not a mark of competent advocacy to pursue at trial every line of argument that can be imagined, regardless of its consistency with other arguments, and regardless of its prospects of success. On the contrary, such an approach is the hallmark of incompetence.’