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ACT Supreme Court summarises incompetence of counsel as a ground of appeal

Cornelius Stevens v Emily Mccallum [2006] 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. Continue reading “ACT Supreme Court summarises incompetence of counsel as a ground of appeal”

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New Zealand ditches advocates’ immunity; Scotland confirms it

It took New Zealand’s new ultimate appellate court a long time to hear Chamberlains v Lai [2006] NZSC 70 and make a decision, but after a long think, its judges have decided to give advocates’ immunity the boot. Advocates’ immunity, otherwise sometimes known as “barristers’ immunity” or “forensic immunity”, applies equally to solicitors involved in litigation as to barristers involved in litigation. It is an immunity from being sued for negligence or anything else for work in court or work intimately connected with such work in court, and is based on the public policy that the umpire’s decision is final.

Many will be the analyses of how Australia is alone in the civilised world in retaining the immunity (though they will be wrong, because Scotland recently followed Australia’s lead and thumbed their noses at the House of Lords: see below). But what needs to be analysed is whether as a practical matter, clients can successfully sue barristers in any particular place, whatever the name of the impediment to doing so is. A right to sue which gives rise to an unsuccessful suit is a right to make a very poor investment of a lot of legal fees. The law in places which profess not to recognise the immunity is less different than we might imagine from the law in places which do profess to do so. The more I know about the law, the more interested I am in analyses of facts against results, ignoring the legal language interposed between them.

Meanwhile, the Inner House of Scotland’s Court of Session declined an invitation to abolish the immunity in criminal cases in Wright v Paton Farrell [2006] SLT 269, showing uncharacteristic restraint in this curious corner of jurisprudence by not commenting on civil cases.