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Incompetence Of Counsel

The Court of Criminal Appeal hears appeals based on incompetence of counsel. This ground of appeal is based on the argument that the trial barrister or solicitor failed to adequately represent the defendant during the trial and that this failure resulted in a miscarriage of justice. An appeal on this ground will succeed if the court considers that the incompetence of counsel deprived the accused person of a chance of acquittal.

Miscarriage of Justice

It is important to note that all trial counsel make numerous strategic decisions throughout a trial. Small mistakes can often be made which do not result in a miscarriage of justice. For this ground of appeal to succeed, it must be demonstrated that counsel failed to act on their instructions or failed to exercise an adequate level of professional conduct.

It is not open to the defendant to merely try a different approach on appeal in the hope that the new case strategy is more effective in creating a reasonable doubt. If the Court of Criminal Appeal is of the view that there is a real possibility that the appellant seeks to adopt a different approach to a key issue than that which he instructed his counsel to do at trial, an appeal on this grounds is unlikely to succeed.

The following matters might lead the Court of Criminal Appeal to conclude that, due to the manner in which an accused person has been represented at trial, there has been a miscarriage of justice (and therefore grant the appeal in the Court of Criminal Appeal) and there was incompetence of trial counsel:

  1. Trial counsel fails to put certain important aspects of the accused’s version of events to key prosecution witnesses who might be expected to have knowledge of these matters (and the accused or another defence witness subsequently gives evidence); or
  2. Corroborating evidence (such as medical documents, phone records, CCTV footage, or other supporting documents) existed and was readily attainable to support key aspects of a defendant’s version of events but this material was not sought to be introduced into evidence at trial as part of the defence case.

In relation to these points, the High Court of Australia in TKWJ v R (2002) 212 C.L.R. 124 at 158-160has made the following statement:

No less importantly, however, it follows from the characteristics of a criminal trial which I have identified that, when it is said that a failure to call evidence which was available to the defence at trial has led to a miscarriage of justice, the question presented to an appellate court requires an objective inquiry, not an inquiry into the subjective thought processes of those who appeared for, or advised, the accused at trial. The relevant question is not: why did counsel not lead the evidence, or was counsel competent or incompetent? It is: could there be any reasonable explanation for not calling the evidence?

If there could not be any such explanation, there may have been a miscarriage of justice. It would then be necessary to go on to ask whether the jury would have been likely to entertain a reasonable doubt about guilt if the evidence had been led. If, however, there could be a reasonable explanation for not calling the evidence that will be the end of the matter.

Like any appeal, a criminal appeal based on incompetence of counsel should not be commenced without first obtaining thorough legal advice. If you are considering appealing a decision in a criminal matter, contact Armstrong Legal for immediate professional assistance.

If you require legal advice in relation to criminal appeals or any other legal matter please contact Armstrong Legal or phone us on 1300 038 223.

Trudie Cameron

This article was written by Trudie Cameron

Trudie Cameron is the Practice Director of Criminal Law and is responsible for supervising and managing the New South Wales Criminal Law team in addition to her own caseload. She practices in both NSW and the ACT. Trudie is an accredited specialist in criminal law, practising exclusively in criminal and traffic law. Trudie defends clients charged with both state and...

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