Alkhair v R

PRINCIPLES CONCERNING COUNSEL'S ALLEGED INCOMPETENCE

As a number of the applicant's grounds of appeal criticise his trial counsel's conduct, it is necessary to refer to the principles applicable in this context.
In R v Birks [1990] 19 NSWLR 677, the accused's trial counsel inadvertently failed to cross-examine the principal prosecution witness on a number of relevant matters. On appeal, this Court set aside his conviction and ordered a new trial on the basis that there had been a serious miscarriage of justice. Gleeson CJ (with whom McInerney J agreed) stated the following relevant principles: "2. 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. 3. 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 precision. When they arise they will attract appellate intervention" (at 685).
Gleeson CJ went on to describe the situation at the trial below as "unusual and extreme". Importantly, his Honour said that the failure to cross-examine related to the whole of the first charge against the accused and regarded the combination of circumstances resulting directly or indirectly from the inadequate cross-examination as giving rise to a miscarriage of justice (at 686).
In TKWJ v The Queen [2002] HCA 46; 212 CLR 124, the appellant criticised his trial counsel for deciding not to adduce evidence of the appellant's good character in his trial for various sexual offences. The High Court dismissed his appeal.
In that case, Gleeson CJ described counsel's decision as "certainly not self-evidently unreasonable, or inexplicable" (at [8]). Rather, his Honour regarded it as "the kind of tactical decision routinely made by trial counsel, by which their clients are bound" and referred to the adversarial system proceeding "upon the assumption that parties are bound by the conduct of their legal representatives" (ibid).
Gaudron J (with whom Gummow and Hayne JJ agreed) emphasised, as did all other members of the Court, that the critical question to be answered was whether a miscarriage of justice had occurred (at [30]-[31]). Her Honour continued: "32 An accused will not ordinarily be deprived of a chance of acquittal that is fairly open if that chance is foreclosed by an informed and deliberate decision to pursue or not to pursue a particular course at trial."
McHugh J concluded that "[t]he decision not to call the good character evidence was a matter falling within the discretion of counsel as to how he would conduct the defence and did not constitute a material irregularity that led to a miscarriage of justice" (at [52]). Later, his Honour said: "74 … Ordinarily, a party is held to the way in which his or her counsel has presented the party's case. That is because counsel is in effect the party's agent. Counsel is 'ordinarily instructed on the implied understanding that he is to have complete control over the way in which the case is conducted.' The discretion retained by counsel in the running of a case is very wide. Counsel may even settle a case without seeking the client's consent. Blackburn J noted in Strauss v Francis that 'the apparent authority with which [counsel] is clothed when he appears to conduct the cause is to do everything which, in the exercise of his discretion, he may think best for the interests of his client in the conduct of the cause'" (citations omitted).
In Ali v R [2005] HCA 8; 79 ALJR 662, the appellant contended that he had been denied a fair trial by reason of his trial counsel's incompetence. The High Court dismissed the appeal. Hayne J (with whom McHugh J agreed) observed: "25 An appellate court does not and may not know what information trial counsel had when deciding whether or not to object to evidence. That is why, in TKWJ, I concluded that the question of miscarriage does not turn on a factual inquiry into why trial counsel acted or did not act in a particular way. That kind of inquiry cannot be made. Rather, the question is whether there could be a reasonable explanation for the course that was adopted at trial. If there could be such an explanation, it follows from the fundamental nature of a criminal trial as an adversarial and accusatorial process that no miscarriage of justice is shown to have occurred" (citations omitted).
In Nudd v The Queen [2006] HCA 9; 80 ALJR 614 the High Court rejected the appellant's case that his trial counsel's incompetence resulted in a miscarriage of justice.
In that case, Gleeson CJ observed: "9 … A criminal trial is conducted as adversarial litigation. A cardinal principle of such litigation is that, subject to carefully controlled qualifications, parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue. The law does not pursue that principle at all costs. It recognises the possibility that justice may demand exceptions. Nevertheless, the nature of adversarial litigation, with its principles concerning the role of counsel, sets the context in which these issues arise. Considerations of fairness often turn upon the choices made by counsel at a trial. In TKWJ v The Queen, the appellant complained that evidence of his good character was not led. This, it was said, was unfair. In rejecting that argument, this Court said that the failure to call the evidence was the result of a decision by counsel, and that, viewed objectively, it was a rational decision. That, in the circumstances of the case, was conclusive. It is the fairness of the process that is in question; not the wisdom of counsel. As a general rule, counsel's decisions bind the client. If it were otherwise, the adversarial system could not function. The fairness of the process is to be judged in that light. The nature of the adversarial system, and the assumptions on which it operates, will lead to the conclusion, in most cases, that a complaint that counsel's conduct has resulted in an unfair trial will be considered by reference to an objective standard, and without an investigation of the subjective reasons for that conduct" (citations omitted).
Gleeson CJ then referred to the "awkward procedure" involved in an appellate court attempting to ascertain a full explanation and understanding of the reasons that actuated trial counsel's conduct, leading to his Honour saying: "10 … There could be circumstances in which it is material to know that a course was taken contrary to instructions. The possibility of a need to know the reason for conduct cannot altogether be eliminated. In general, however, as far as justice permits, the inquiry should be objective. As a matter of principle, such objectivity is consistent with the assumptions on which the adversarial system operates. As a matter of practicality, it avoids the difficulties inherent in turning a criminal appeal into an investigation of the performance of trial counsel."
Gummow and Hayne JJ referred to the appellant's complaints that his trial counsel had failed to give him proper advice and continued: "27 … But a failure to give proper advice to the appellant would be significant only if, as a result of that failure, something was done or not done at trial that was, or occasioned, a miscarriage of justice. For the reasons given in TKWJ, 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" (citations omitted).
In relation to the appellant's complaint that his counsel did not call him to give evidence at the trial, their Honours said: "31 It would have been well open to competent counsel to conclude that the very slight gains that might be obtained by putting forward a positive defence, of the kind that the appellant said he had, were well and truly outweighed by the disadvantages that would likely be suffered were the appellant to give evidence. It would, then, have been well open to competent counsel to conclude that the appellant should be advised against giving evidence in his defence. That being so, the fact that the appellant did not give evidence at his trial has brought about no miscarriage."
In Matthews v R [2013] NSWCCA 187 this Court said the following in response to a ground of appeal alleging that the appellant's counsel had been negligent in his conduct of the trial: "62 In assessing complaints about counsel's conduct it must be borne in mind that the relevant inquiry is whether what occurred or did not occur at the trial occasioned a miscarriage of justice (TKWJ v R [2002] HCA 46; 212 CLR 124 at [79] per McHugh J, Ali v R [2005] HCA 8; 214 ALR 1 at [18] per Hayne J). None of the alleged failings of the appellant's counsel is even close to the potential category of errors by counsel adverted to by McHugh J in TKWJ at [76], namely those that are of such a nature that of themselves they might render a trial unfair (see Nudd v R [2006] HCA 9; 80 ALJR 614 at [19] per Gleeson CJ and [87] per Kirby J). Instead the nature of his complaints are such that what needs to be considered is what ultimately did or did not occur at the trial, whether there was some material irregularity in the trial and whether there is a significant possibility that the acts or omissions of which complaint is made affected the outcome of the trial (Nudd at [24] per Gummow and Hayne JJ; TKWJ at [31]-[33] per Gaudron J, at [79] and [97] per McHugh J, at [101] per Gummow J and at [103]-[108] per Hayne J). "63 In conducting that inquiry a number of related matters should be noted. First, there is vested in counsel for an accused person control over and responsibility for the manner in which the trial will be conducted (TKWJ at [74] per McHugh J). Second, relevant unfairness will not be established simply because an 'apparently rational decision' by trial counsel produced adverse consequences for the accused (TKWJ at [16] per Gleeson CJ). Third, inquiries into the subjective thought processes of counsel for taking the steps they did at the trial are to be avoided. Instead the question is whether there could be a reasonable explanation for the course that was adopted at trial (Ali per Hayne J, with whom Gummow J agreed at [25]; TKWJ at [110] per Hayne J). If there could be such an explanation then no error or defect in the trial occasioning any miscarriage of justice is shown to have occurred (Ali id). Fourth, although the inquiry into whether there was an explanation for counsel's conduct is an objective one, there are some perhaps limited circumstances in which it is necessary for the appeal court to be apprised of material such as counsel's instructions (Nudd at [10] and [17] per Gleeson CJ)."
In Outram v R [2013] NSWCCA 329 an applicant for an extension of time for leave to appeal criticised his trial counsel's failure to call evidence of the applicant's good character, to properly cross-examine the complainant, to adduce the applicant's evidence properly and to ensure that only relevant material in the applicant's ERISP interview transcript was admitted into evidence. Leeming JA (with whom Johnson and Hall JJ agreed) concluded that the applicant had not advanced a sufficiently cogent argument that there had been a miscarriage of justice to warrant the grant of an extension of time. In relation to the complaints concerning the adducing of evidence from the applicant and the ERISP transcript, his Honour said: "53 The other matters complained of in proposed ground 2 are in essence complaints about the conduct of the defence by which the applicant is bound which fall short of something so significant that it amounts to a miscarriage of justice. It is to be recalled that although it is not necessary to characterise the conduct as 'flagrant misconduct' or 'egregious error', it is also insufficient to establish that counsel has been 'negligent or otherwise remiss'. To the extent that the question is whether the course taken by counsel was capable of explanation (see TKWJ at [27]-[28] and Nudd at [31] and [157]), that test would be satisfied."
In Ahmu v R [2014] NSWCCA 312, this Court dismissed an appeal in which the appellant contended that he had suffered a miscarriage of justice as a result of his trial counsel's incompetence. In reliance on Nudd (at [10]), Basten JA emphasised that the focus of attention for such a question should be the objective features of the trial process and rejected an affidavit sworn by trial counsel on the basis that it did not add anything to the inferences otherwise available from the course of the trial (at [31]). On the other hand, Adams J considered the affidavit admissible because it elucidated trial counsel's reason for taking his chosen course and countered what would have been a misleading impression that would have arisen from the objective circumstances alone (at [55]).
In Vella v R [2015] NSWCCA 148, evidence of the trial counsel's conduct of the trial was led in this Court. Beech-Jones J (with whom Gleeson JA and Hidden J relevantly agreed) said in relation to [63] of Matthews: "94 The interaction of the third and fourth principles leaves some scope for uncertainty as to the extent to which evidence from an appellant's former Counsel and solicitor explaining their conduct can be received and considered in determining a complaint that a miscarriage of justice arose from it (see Ahmu at [31] per Basten JA and at [53] per Adams J). In Nudd Gleeson CJ stressed that so 'far as justice permits, the enquiry should be objective' (at [10]) but added 'there may be circumstances where it is relevant to ask why some act or omission occurred' (at [10]). One example that his Honour identified was a determination of whether 'counsel took a certain course upon the instructions of the client' (id)."
I draw from these authorities the following principles relevant to the present case: 1. To the extent possible, an appellate court should determine an appeal involving complaints about a trial counsel's conduct of a case by examining the record of the trial to determine from the objective circumstances whether the accused has had a fair trial. 2. Ordinarily, an affirmative answer to this question is required where the impugned conduct is capable of being rationally explained as a step taken, or not taken, in the interests of the accused. This is so even if the accused alleges on appeal that he or she did not authorise the conduct because the nature of the adversarial system means that the client is bound by the manner in which the trial is conducted on his or her behalf. 3. Only in exceptional circumstances will an appellate court find it necessary to resort to subjective evidence concerning the appellant's legal representatives' reasoning at trial or to evidence as to communications between the appellant and those representatives. 4. The ultimate question for an appellate court is whether the appellant has established that what occurred at the trial gave rise to a miscarriage of justice in the sense that the appellant lost a chance of acquittal that was fairly open.

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