Nudd v The Queen

What happened

Kevin Philip Nudd was convicted in the Supreme Court of Queensland before Philippides J and a jury of being knowingly concerned in the importation into Australia of a commercial quantity of cocaine contrary to s 233B of the Customs Act 1901 (Cth). The maximum penalty was 25 years' imprisonment; he received 22 years with an 11-year non-parole period. The prosecution case rested on the interception of the yacht in Moreton Bay on 3 May 2001 carrying 89 kilograms of 70 per cent pure cocaine, together with extensive telephone intercept product and surveillance evidence. Peter Jackson, the yacht's master, had sailed from Mexico via Noumea. Intercepts captured 11 conversations between Jackson and Nudd, plus conversations involving Jorge Velarde (an intermediary) and Nudd's sister Sylvia Aldren. These showed Nudd facilitating contacts, assisting with false passport arrangements (including use of "Florida ID" and references to a "new Bible"), discussing "contamination" of "building supplies" or "Italian tiles" (coded references to water-damaged cocaine), and meeting Jackson at Los Angeles Airport on 7 March 2001.

Judgment (211 paragraphs)

[1]

M J Byrne QC with C J N Eberhardt for the appellant (instructed by Graham Lawyers)

[2]

A J Rafter SC with G R Rice for the respondent (instructed by Director of Public Prosecutions (Commonwealth))

[3]

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

[4]

Criminal Law - Trial - Miscarriage of justice - Competence of counsel - Alleged failure to take instructions - Alleged failure to understand elements of offence and relevant statutory provisions - Alleged failure to be familiar with applicable judicial decisions.

[5]

Appeal - Criminal appeal - Miscarriage of justice - Competence of counsel - Application of "proviso" - Whether denial of fair trial may sometimes without more amount to miscarriage of justice.

[6]

Legal practitioners - Criminal trial - Competence of counsel and of solicitor - Alleged failures to take instructions, to understand elements of offence and to consider applicable judicial decisions - Extent to which, if at all, alleged incompetence contributed to any miscarriage of justice - Whether in some circumstances miscarriage of justice includes denial of fair trial according to law without more.

[7]

Words and phrases - "on any ground whatsoever there was a miscarriage of justice".

[8]

GLEESON CJ. Following a trial in the Supreme Court of Queensland, before Philippides J and a jury, the appellant was convicted of being knowingly concerned in the importation into Australia of cocaine. He was sentenced to a lengthy term of imprisonment. He says that his conviction involved a miscarriage of justice, and blames his trial counsel.
The appellant appealed unsuccessfully to the Court of Appeal of the Supreme Court of Queensland[1]. The jurisdiction invoked was that conferred by s 668E of the Criminal Code (Q), which is in a form similar to the statutory provisions governing criminal appeals in the other Australian States and Territories[2]. The statutory ground of appeal was that there was a miscarriage of justice. That, as was said in R v Birks[3], Ignjatic[4], TKWJ v The Queen[5], and Ali v The Queen[6], defined the issue to be decided. The appellant's criticisms of the conduct of his trial counsel were relevant to the issue[7], but the issue was whether there was a miscarriage of justice.
In this context, the concepts of justice, and miscarriage of justice, bear two aspects: outcome and process. They are different, but related.
In Davies and Cody v The King[8], this Court said:

[9]

"From the beginning, [the English Court of Criminal Appeal] has acted upon no narrow view of the cases covered by its duty to quash a conviction when it thinks that on any ground there was a miscarriage of justice, a duty also imposed upon the Supreme Court of Victoria ... It has consistently regarded that duty as covering not only cases where there is affirmative reason to suppose that the appellant is innocent, but also cases of quite another description. For it will set aside a conviction whenever it appears unjust or unsafe to allow the verdict to stand because some failure has occurred in observing the conditions which, in the court's view, are essential to a satisfactory trial, or because there is some feature of the case raising a substantial possibility that, either in the conclusion itself, or in the manner in which it has been reached, the jury may have been mistaken or misled."

[10]

This emphasis upon outcome and process as requirements of justice according to law is fundamental and familiar. It informed the explanation of miscarriage of justice given by Barwick CJ in Ratten v The Queen[9]:

[11]

"Miscarriage is not defined in the legislation but its significance is fairly worked out in the decided cases. There is a miscarriage if on the material before the court of criminal appeal, which where no new evidence is produced will consist of the evidence given at the trial, the appellant is shown to be innocent, or if the court is of the opinion that there exists such a doubt as to his guilt that the verdict of guilty should not be allowed to stand. It is the reasonable doubt in the mind of the court which is the operative factor. It is of no practical consequence whether this is expressed as a doubt entertained by the court itself, or as a doubt which the court decides that any reasonable jury ought to entertain. If the court has a doubt, a reasonable jury should be of a like mind. But I see no need for any circumlocution; as I have said it is the doubt in the court's mind upon its review and assessment of the evidence which is the operative consideration.

[12]

That is one instance of a miscarriage: another is where the appellant has not had a fair trial. There is no need here to refer to the various circumstances in which a trial may become unfair. Some of these are mentioned in the reasons of the Full Court. But it may be that even where there have been irregularities at the trial there may be no miscarriage of justice if the court forms the opinion that no jury of reasonable men, properly instructed and alive to their responsibilities, would fail on the evidence to convict the accused."

[13]

The common statutory provision governing criminal appeals, of which s 668E of the Queensland Code is an example, covers matters of both outcome and process, referring to jury verdicts which are unreasonable or cannot be supported having regard to the evidence, to wrong decisions (of a judge) on any question of law, and to any other ground for concluding that there was a miscarriage of justice. These grounds for allowing an appeal are followed by a qualification, often referred to as a proviso, to the effect that, even if a point raised by the appellant has been made out, the appellate court may dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred. The proviso was considered recently by this Court in Weiss v The Queen[10]. The concluding sentence in the passage from the judgment of Barwick CJ in Ratten adopted a formula sometimes used to explain the practical effect of the proviso. What is significant for present purposes is the qualified manner in which Barwick CJ expressed himself. Some irregularities "may" involve no miscarriage of justice if the appellate court forms a certain opinion about the strength of the case against the appellant. The corollary of that proposition is that a defect in process may be of such a nature that its effect cannot be overcome by pointing to the strength of the prosecution case. It is impossible to state exhaustively, or to define categorically, the circumstances in which such a defect will occur. In Mraz v The Queen[11], Fullagar J said that "every accused person is entitled to a trial in which the relevant law is correctly explained to the jury and the rules of procedure and evidence are strictly followed" and that, if there is a failure in any of those respects "and the appellant may thereby have lost a chance which was fairly open to him of being acquitted", then there is a miscarriage of justice. That well-known passage relates the failure of process to the loss of a chance of acquittal. 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 appellate 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 miscarriage 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.

[14]

"This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable ... a breakdown in the adversary process that renders the result unreliable."

[15]

Later, her Honour said, in the context of error resulting in the absence of certain evidence[16]:

[16]

"The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome."

[17]

In Canada, the right to effective assistance of counsel has been held to be derived from certain provisions of the Criminal Code and the Canadian Charter of Rights and Freedoms. In R v GDB[17], the Supreme Court of Canada followed the approach in Strickland. A significant feature of the North American cases is that, although they turn upon a legal right to effective assistance from counsel, and complaints are expressed in terms of a denial of the right, the complaints are dealt with by asking a question which, upon analysis, is similar to the question whether there has been a miscarriage of justice.
Because of the impossibility of predicting every form of misfortune or error that may result in a miscarriage of justice; because there are cases where an understanding of why something happened, or did not happen, may be material to a conclusion as to whether there was unfairness; and because such an understanding may reveal that there is no explanation for what occurred other than counsel's ineptitude or inexperience, courts of criminal appeal do not overlook the possibility that the conduct of counsel may result in such a failure of process that there is a miscarriage.

[18]

In the late 1980s, there were a number of cases in the Criminal Division of the English Court of Appeal where tactical decisions made by counsel without instructions from the client were claimed to have given rise to miscarriages of justice. In 1989, in R v Ensor[18], Lord Lane CJ, reviewing earlier decisions, reaffirmed the general rule that a client is bound by counsel's conduct, but approved a qualification, expressed in an earlier decision, to the effect that where an appellant "might have suffered some injustice as a result of flagrantly incompetent advocacy by his advocate" the conviction would be quashed. This was not an invitation to substitute a standard of competence of counsel for the statutory test of miscarriage of justice. It was stated, as a qualification to a general rule, in recognition of the possibility of exceptional circumstances. Nor was it an attempt to define those exceptional circumstances with precision. Flagrant incompetence may be contrasted with conduct for which there is a rational explanation. If, instead of "flagrant incompetence", the English judge had spoken of "conduct incapable of rational explanation on forensic grounds", the meaning might not have been much different.
There will be some cases in which it is not possible to decide whether injustice has occurred without knowing why a particular course was taken at trial. To take an extreme example, if an accused person failed to give evidence because counsel wrongly advised that an accused is not entitled to give evidence, it is difficult to imagine that a court of criminal appeal would not intervene. The example shows that, although, as a general rule, the test of whether a forensic decision has resulted in an unfair trial is objective, one cannot eliminate the possibility of exceptional cases in which it is relevant to know why a certain course was or was not taken.
In 1990, the New South Wales Court of Criminal Appeal decided R v Birks[19]. A miscarriage of justice was held to have resulted from the "combined effect of ... various errors"[20]. The errors were errors of trial counsel, and of the trial judge. The explanation of counsel's errors was inexperience, but it was the errors (of counsel and the judge) that were said to give rise to the miscarriage of justice. It is important to note the significance of the combination of the errors, for the case provides a good example of a failure of the trial process, or what O'Connor J called "a breakdown in the adversary process"[21]. The accused was charged with rape. He admitted having sex with the complainant, but said she consented. A problem for the defence was that, following the incident, the complainant's face was found to be bruised and cut, in a manner consistent with her account of violence. The accused, before trial, instructed his lawyers that the damage to the complainant's face was the result of a mishap with a torch. When cross-examining the complainant, defence counsel failed to put this to the complainant. When the accused gave evidence, and explained the facial injuries by reference to the torch, his credibility was attacked on the ground that, since his lawyer had not put this version of events to the complainant, it must have been something the accused invented on the spot. His lawyers knew that this was no recent invention, but that it was consistent with what he had said to them from the beginning. Counsel had simply forgotten to cross-examine on the point. There were various ways in which counsel could have dealt with the problem, but he had no idea what to do. In final address, the prosecutor told the jury about the rule in Browne v Dunn[22], and invited the jury to infer, from counsel's failure to put it in cross-examination to the complainant, that the explanation about the torch had previously been unknown to the accused's lawyers, and was fabricated by the accused in the witness box. The trial judge took the matter even further. He told the jury they could infer, both from counsel's failure to put the innocent explanation of the facial injuries to the complainant in cross-examination at the trial, and from an earlier failure to raise the matter in cross-examination at the committal proceedings, that the accused had not instructed his lawyers about the incident involving the torch, but had made it up in the witness box. The first part of that direction was risky; the second part (concerning the committal proceedings) was wrong. There is no obligation on defence counsel at committal proceedings to put the defence case in cross-examination or, for that matter, to cross-examine at all. After all this had happened, and the jurors had retired to consider their verdict, counsel told the judge, in court, that his failure to cross-examine was an oversight, and that his instructions from the accused had included information about the torch. The report of the case, with some understatement, records that "confusion resulted"[23]. Before anything was done to resolve the confusion, the jury came back with a verdict of guilty. The Court of Criminal Appeal quashed the conviction and ordered a new trial. In some respects, what happened in Birks bears a resemblance to what had happened in Tuckiar v The King[24]. The trial went off the rails as a result of a combination of errors of counsel and the trial judge. The inexperience of counsel was part of the explanation of what happened, but it was the effect of the errors that was held to constitute the miscarriage of justice.

[19]

(a) I was not aware that Peter Jackson was intending to bring cocaine into Australia.

[20]

(b) I had some knowledge through Jorge Velarde that Peter Jackson was taking some chemicals, possibly Ephedra or Pseudoephedrine for a person whom I believe to be Jorge Velarde's cousin, whom I also believe resides in New Zealand.

[21]

[22]

(d) After my meeting with Peter Jackson at the Los Angeles Airport on March 7, 2001 I had no further contact with Peter Jackson and no further involvement in any aspect of Peter Jackson's activities. In the course of the meeting at Los Angeles Airport on March 7, 2001 I told Peter Jackson I was not going to have anything more to do with him and the matter as I did not want to have any further involvement in the matter. I did not assist Peter Jackson obtain a passport in the name of [Geschke]."

[23]

This evidence may properly be described as being, at best, equivocal, but it is convenient to treat it, as the appellant's submissions did, as showing that the appellant may have wished to contend:

[24]

(a) that he did not know that Australia was the intended destination for whatever was being imported; and

[25]

(b) that he had sought to dissociate himself from the enterprise.

[26]

(His contention that he had no financial or other interest in the importation would seem to have been a point in aid of an argument that the prosecution had failed to prove its case.)

[27]

All of this was material that, if it was to be advanced with any effect, would have required the appellant to give evidence at his trial. A decision to call the appellant was fraught with danger. If called he would, presumably, have admitted that it was his voice in the recordings of intercepted telephone conversations. (On appeal he did not seek to say that the admission made at trial, that it was his voice, was a false admission; he said only that it should not have been made.) Further, and no less importantly, the prosecution would have been able to cross‑examine him about what were alleged to be coded aspects of the conversations with their references, for example, to "contamination" of cargo, "your new bible" and the like. But above all, it would have exposed the appellant to cross‑examination that reinforced that the recorded conversations tendered in evidence revealed the continued close involvement of the appellant in dealings with Mr Peter Jackson who was aboard the "Sparkles Plenty" when intercepted in Australian waters with a large cargo of water damaged cocaine.
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.
There then remains the admission made at trial (that it was the appellant's voice in the recorded telephone conversations) and the allegation of failure to object to reception in evidence of some aspects of the taped conversations. Neither can be said to have brought about any miscarriage. The identity of the appellant as a speaker in the recorded conversations was not open to real dispute. In one critical conversation he was observed using a public telephone, with Mr Velarde, at the time that Mr Jackson was recorded as having a telephone conversation, first with one man, and then with another. Absent explanation by the appellant, the jury could not have concluded otherwise than that he had been observed speaking to Mr Jackson. Without evidence to the contrary from the appellant, the conclusion that it was the appellant who participated in the other conversations was likewise inevitable.

[28]

"The proviso has no application where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings. If that has occurred, then it can be said, without considering the effect of the irregularity upon the jury's verdict, that the accused has not had a proper trial and that there has been a substantial miscarriage of justice."

[29]

It is not necessary to explore the boundaries of this proposition or to attempt to identify circumstances in which it could find application. To do so would require close attention to what is meant by "essential requirements of the law" and "the root of the proceedings". These notions may reflect what has been said by some members of the Court respecting aspects of "due process" discerned from Ch III of the Constitution[40]. However that may be, in the context of a criminal trial it may be open to doubt whether some requirements of the law are properly to be dismissed as inessential or whether some requirements are to be classified as radical and others not.
In the present case, the proposition that the incompetence of the appellant's counsel went to the root of his representation is either self‑evident or circular. If all that was meant was that counsel was incompetent, the addition of reference to the root of the appellant's representation is superfluous. If it was intended to convey that the incompetence of representation at trial led to a miscarriage of justice, it is a proposition that does not add to the considerations examined earlier in these reasons.
The appeal should be dismissed.
KIRBY J. This appeal[41] is one of a trilogy[42]. It concerns the principles of law governing the provision of relief against conviction for a criminal offence where the matter of complaint is incompetence on the part of the legal representatives who appeared for the accused at the trial.

[30]

In three important decisions of this Court an implicit assumption appears that legal practitioners, representing a person at trial, will exhibit competence in their knowledge of the relevant law, awareness of applicable procedures and judgment in the forensic decisions that have to be made.
In Dietrich v The Queen[43], this Court affirmed the power of courts to stay criminal proceedings that would otherwise result in an unfair trial where an accused person is charged with a serious offence and, through no fault, is unable to obtain legal representation. Inherent in the need to have legal representation, particularly in criminal trials, is the special difficulty faced by accused persons standing trial, to represent themselves without a qualified lawyer who can provide "effective assistance"[44]. The result of Dietrich has been to expand significantly the public provision of legal representation at criminal trials, replacing earlier imperfect arrangements for such assistance[45]. This development has inevitably raised expectations about the standard of representation that will be afforded.
In TKWJ[46], the Court considered complaints concerning the alleged incompetence of counsel representing an accused person in a criminal trial. There, the failure was said to be the omission of counsel to call evidence before the jury as to the accused's good character. In rejecting that complaint, upon the ground that the failure of counsel to adduce character evidence did not give rise to a miscarriage of justice within the criminal appeal statute[47], this Court implicitly accepted that, had a miscarriage been shown, it would have given rise to relief. Inherent in that conclusion is an affirmation of the relevance of professional competence to the decision. Legal representation, in other words, contemplates effective assistance, not simply having a person present in court in an advocate's garb[48].
In D'Orta-Ekenaike v Victoria Legal Aid[49], the Court, over my dissent[50], maintained, and even widened[51], the immunity which, it was held, legal practitioners who give advice affecting the conduct of a trial enjoy from subsequently being sued for negligence on account of their advice and conduct as such. The Court declined to follow decisions in England[52], New Zealand[53] and elsewhere[54] that have rejected the immunity, including in criminal trials[55]. Yet implicit in the maintenance of such an immunity is a presumed attainment by the members of the legal profession concerned of a standard of reasonable competence and skill without which administration of justice in the courts would be unattainable.

[31]

The background facts: The facts are stated in the reasons of Callinan and Heydon JJ[65]. As their Honours point out, it is necessary in cases of this kind, to consider the facts in some detail. Their comprehensive explanation of the prosecution case brought against Mr Kevin Nudd (the appellant) as well as of the defects in his representation at the trial and the appellant's newly propounded defences relieves me of repeating this material.
Trial counsel acknowledged that he had not previously conducted a criminal trial in a superior court. Neither he, nor his instructing solicitor, ever obtained a full and thorough proof of evidence from the appellant, containing the appellant's version of events, so far as the appellant was willing to provide this. This omission was found by the Court of Appeal to have occurred because trial counsel believed that obtaining such a statement from the appellant might in some way limit the choice of the arguments that he could advance before the jury[66]. In the hearing before this Court, it became clear that failure to secure a proper statement from a person accused of a serious criminal offence is not an accepted or common practice of the Queensland Bar in criminal or other trials[67]. The omission is clearly fraught with great dangers for the client. This is because only in the detailed understanding of the evidence may a defence, based on fact or law, appear to the trained eye of diligent legal representatives.
Unfortunately, the communications revealed in the record between the appellant and the lawyers representing him at his trial mainly concerned legal fees. Similar attention was not lavished on the preparation of the case, either in recording the appellant's version of events or in studying the authority of the courts on the constituent elements of the federal crime with which the appellant had been charged[68].
The maximum penalty applicable, upon conviction, was 25 years imprisonment[69]. In the event, upon his conviction, the appellant was sentenced to 22 years imprisonment with a non-parole period of 11 years[70]. Self-evidently, the predicament facing the appellant in his trial was of a very serious order. It demanded professional attention of the most diligent and effective kind.
The minimum standard required of such attention was a thorough awareness of the appellant's version of events, so far as he was prepared to disclose it, and careful research into the legal ingredients of the offence. Neither of the lawyers who appeared for the appellant is on trial in these proceedings. Neither is represented before this Court. We have certain testimony given by those lawyers before the Court of Appeal. However, the appeal before this Court proceeds on the footing that evidence of incompetence in the presentation of the appellant's case by trial counsel is established. I agree in the conclusion expressed by Callinan and Heydon JJ that "on any assessment, whether subjective or objective, counsel's conduct was incompetent to a serious degree"[71].

[32]

(1) Failing to understand, and properly advise the appellant on the elements of the offence with which he was charged[73];

[33]

(2) Conducting the defence case and opening to the jury on the basis of an incorrect understanding of the offence, thereby putting the appellant on the back foot before the jury from the outset of the trial;

[34]

(3) Failing to take, or procure, detailed written instructions from the appellant relevant to his version of the facts;

[35]

(4) Failing properly to advise the appellant on such version as to his legal liability for the offence charged and to prepare and present the defence case accordingly;

[36]

(5) Failing, on the basis of a correct understanding of the offence and like appreciation of the appellant's version of the facts, to give advice to the appellant on whether or not to offer evidence on his own behalf at the trial;

[37]

(6) Making a concession before the jury that it was the appellant whose voice could be heard on the telephonic interception tapes without first obtaining specific instructions in that respect and considering the necessity and wisdom of needlessly doing so[74];

[38]

(7) Failing to seek appropriate directions from the trial judge concerning the way in which the jury could use the content of discussions between other persons, not had in the presence of the appellant[75];

[39]

(8) Failing to object to the tender of parts of telephonic tapes containing arguably inadmissible and prejudicial material irrelevant to the offence charged[76]; and

[40]

(9) Introducing immaterial and prejudicial information in the closing address to the jury concerning the appellant's arrest in the United States for visa violations, his deportation to Australia and the loss of property seized from him by the Australian authorities[77].

[41]

Taken individually, some of the foregoing acts and omissions of counsel were not instances of the most serious professional incompetence. Some may even (as McMurdo J considered in the Court of Appeal[78]) be put to one side as ill-judged, but available, tactical decisions, designed to advance the appellant's case in the context of very strong prosecution evidence. However, in combination, the instances of incompetence are clearly serious. McMurdo J thought that, although the prosecution case was "strong", it went "too far to say that there was no prospect of an acquittal absent evidence from the accused"[79]. The foundation was therefore well and truly laid for invocation of the principles of law governing appeals against criminal conviction by reference to legal professional incompetence occasioning a miscarriage of justice.

[42]

The appeal to this Court complains of error on the part of the Court of Appeal. That Court was obliged to decide the appeal by reference to applicable statutory provisions.
In Australia appeal is always a creature of statute[80]. At common law, the powers of courts to disturb criminal convictions that followed a jury verdict, were very limited[81]. It is therefore the common form criminal appeal statute that ordinarily affords the jurisdiction and power to Australian courts[82] to provide relief from a criminal conviction. Unless the preconditions expressed in such statutes are met and, in the particular case, are such as to justify the quashing of the conviction and the ordering of a new trial, the duty of the appellate court is to dismiss the appeal, leaving the criminal conviction and any consequent punishment to stand[83].
In the present case, the applicable statutory provision governing the decision of the Court of Appeal, was s 668E of the Code. That section provides, relevantly[84]:

[43]

"668E(1) The Court on any such appeal against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal.

[44]

(1A) However, the Court may, notwithstanding that it is of the opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred."

[45]

As Gummow and Hayne JJ point out in their reasons[85], the category into which the appellant's submissions in this case falls is, and is only, the residual case of appeal, namely that brought "on any ground … [of] a miscarriage of justice". The sole basis advanced to engage that provision was the incompetence of the representation of the appellant at his trial. The provisions of s 668E(1A) of the Code, although not stated in the form of a "proviso", are expressed in the same language appearing elsewhere in that form. It follows that the outcome of the appeal to the Court of Appeal (and hence the claim of error agitated in this Court) turns, and turns only, on the application of the foregoing statutory provisions to the evidence disclosed in the record. The question for this Court is whether, in the approach that it took or the conclusion that it reached, the Court of Appeal erred in the performance of its functions so described.

[46]

The outcome of the trial of the appellant is described by Callinan and Heydon JJ[86]. Their Honours explain the ways in which the trial judge (Philippides J) sought to correct before the jury errors made by trial counsel, both as to the legal ingredients of the offence charged and as to his concession that it was the appellant's voice that the jury had heard on the tapes of the intercepted telephone conversations[87].
Whereas the latter concession, although imprudently made, especially without specific instructions, might truly have been a mistake of tactics on the run, the failure of trial counsel to acquaint himself with the basic law on the offence of being "knowingly concerned" in the importation to Australia of the specified prohibited drug, was of a different order. That law was not difficult for a trained lawyer to discover. If access to the Internet was not available, the hard copy index to the Australian Criminal Reports for vols 51-100 (1990-1998) contains, under "Drug Offences", numerous references to cases containing judicial explanations of the legal meaning of being "knowingly concerned" and "importation". Understanding the legal components of the offence was the first duty of counsel representing a person accused of it.
The disposition of the appeal by the Court of Appeal is also sufficiently described elsewhere[88]. There is no need for me to repeat that description. Following the then recent decision of this Court in TKWJ[89], the Court of Appeal correctly focused its attention on whether, within the language of the Code, a "miscarriage of justice" had occurred as a result of the instances of incompetence that it accepted. It concluded that it had not. It therefore dismissed the appeal.
Now, by special leave, the appellant has appealed to this Court. He complains that he suffered a miscarriage of justice. He submits that he was deprived of the chance to advance the defences now identified and that, on that basis, his conviction is unsafe. But he also says that, because of the incompetence of those who represented him at his trial, he did not secure a fair trial. He asks that his conviction be quashed and that a retrial should be ordered. Did the Court of Appeal err in declining that relief?

[47]

Starting with the statute: In TKWJ and in Ali, this Court emphasised the importance for appellate courts, considering complaints of incompetent representation in criminal appeals, to keep at the forefront of their attention the ambit of their jurisdiction and power contained in the applicable criminal appeal statute. Those appeals are not, as such, an inquiry into the professional competence of the legal representatives of the accused. That function, if it is to be undertaken, belongs to other bodies in a hearing in which procedural fairness is assured to the legal practitioner concerned. Of necessity, the only relevance of professional competence to a criminal appeal following conviction, is how far any proved incompetence contributed to the grounds enlivening the powers of the appellate court to quash the conviction.
When, in recent years in criminal appeals, complaints came to be raised in increasing numbers concerning alleged incompetence in the representation of the accused at trial, appellate courts, in Australia and elsewhere, reached for non-statutory explanations as to when such a complaint would be entertained. Thus, a suggested requirement was adopted that the incompetence had to be "flagrant"[90] or "radical"[91]. For a short time, that became the accepted law in many jurisdictions. However, the defect of this approach was that the additional word, although designed to eliminate unimportant or immaterial mistakes, was ultimately unilluminating. It had, moreover, no textual foundation in the criminal appeal legislation applicable throughout Australia.
Even in England and Scotland, where resort to such a formula had been common[92], it has more recently been abandoned under the influence of the language of Art 6 of the European Convention on Human Rights[93], which guarantees the criminal accused a fair trial. Thus, in R v Peeris[94], Henry LJ observed:

[48]

"… the proper approach does not depend upon any assessment of the quality or degree of any suggested culpability of counsel. It depends 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."

[49]

In this way, the resort to pejorative adjectives describing the professional incompetence complained of has been replaced by a "practical", "pragmatic" or "functional" analysis ("a practical approach") that addresses the consequences of any professional incompetence for the outcome of the criminal trial.
A focus on outcomes: A focus on the consequences of the suggested incompetence has been emphasised by this Court[95], principally because of its insistence upon adherence to the statutory mandate in such cases of courts of criminal appeal. A like approach is now common in virtually all jurisdictions of which I am aware, addressing issues of incompetent legal representation.
United States cases: In the United States, where such issues often arise from a suggested failure to comply with an accused's constitutional right to "the assistance of counsel for his defence"[96], the Supreme Court has addressed "… whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result"[97]. The Court has said[98]:

[50]

"… [T]he purpose of the effective assistance guarantee … is not to improve the quality of legal representation, although that is a goal of considerable importance to the legal system. The purpose is simply to ensure that criminal defendants receive a fair trial."

[51]

Given that purpose, the Supreme Court has insisted[99]:

[52]

[53]

So expressed, the test in the United States has been described as "highly demanding"[100]. It has been applied in many recent cases[101]. It is now regarded as settled law in that country[102].
Canadian cases: The approach is similar in Canada. Whilst emphasising the critical importance to the operation of the "adversarial process" of effective legal representation, Canadian courts have said[103]:

[54]

"Where counsel fails to provide effective representation, the fairness of the trial, measured both by reference to the reliability of the verdict and the adjudicative fairness of the process used to arrive at the verdict, suffers. In some cases the result will be a miscarriage of justice. This court is under a statutory obligation to quash convictions which are the product of a miscarriage of justice …."

[55]

The Supreme Court of Canada has insisted that attention be addressed to the consequences (if any) of any alleged incompetence[104]. It has accepted that, where a miscarriage of justice is not established, appellate courts in such cases can properly leave any remaining concerns about the performance and conduct of incompetent counsel to the disciplinary bodies of the legal profession[105].
Canadian cases have explained the reticence of courts of criminal appeal to accept criticism of the conduct of trial counsel as operationally effective. In R v White, the Ontario Court of Appeal examined the need to draw a clear line between incompetence and tactical decisions later judged unwise or imprudent[106]:

[56]

"The art of advocacy yields few, if any, absolute rules. It is a highly individualized art. What proves effective for one counsel may be ineffective for another. Most cases, therefore, offer defence counsel a wide scope for the exercise of reasonable skill and judgment. Appellate judges, many of them advocates in their own practices, should not be too quick to conclude that a trial lawyer's performance was deficient because they would have conducted the defence differently."

[57]

United Kingdom cases: A like approach has also been adopted in the United Kingdom. English courts now accept that "the appellant has to go beyond the incompetence and show that the incompetence [has] led to identifiable errors or irregularities in the trial, which themselves [render] the process unfair or unsafe"[107]. Similarly, in Scotland it has been held that, unless the incompetent conduct has "resulted in a miscarriage of justice", the criminal appeal statute requiring relief "will not apply". In Anderson v HM Advocate[108], the Lord Justice General said[109]:

[58]

"[Professional incompetence] can only be said to have resulted in a miscarriage of justice if it has deprived the accused of his right to a fair trial. That can only be said to have occurred where the conduct was such that the accused's defence was not presented to the court."

[59]

New Zealand authority: The New Zealand Court of Appeal has likewise brought such cases back to the requirement that a miscarriage of justice must be shown by counsel's failure to comply with instructions, or by radical errors in counsel's conduct of the case (including lack of preparation)[110]. The Supreme Court of New Zealand recently dismissed an application for leave to appeal against a decision adopting this approach[111]. In R v S[112], the Court of Appeal held specifically that:

[60]

"In order to establish a miscarriage of justice an appellant must show that the mistake could well have had a significant prejudicial effect on the outcome of the trial."

[61]

This review of authority makes it clear that the approach adopted by this Court in TKWJ and in Ali is substantially similar to that observed by courts of high authority elsewhere, considering the same problem within their legal systems. The factors that have influenced this approach are basically the same. The first duty in criminal appeals is to the text of the law authorising relief against infirm verdicts and miscarriages of justice. As well, courts deciding such appeals observe the practical approach demanded by such laws in the review of an outcome that has followed the verdict in a criminal trial. Such a verdict is ordinarily entitled to respect and treated as final, particularly where made by a jury that acts upon the entirety of the evidence and with a collective wisdom that is addressed to the case viewed in its entirety.
A practical approach: The foregoing analysis still leaves it for the appellate court to say whether the preconditions for relief, or any of them, have been made out, particularly whether "on any ground … a miscarriage of justice" has occurred.
There are legal and pragmatic reasons why a great deal of latitude must be accorded to counsel appearing in a criminal, or indeed any, trial[113]. Ordinarily, a party is held to the way in which his or her counsel has presented that party's case[114]. This is not merely because the relationship between lawyer and client is grounded in the law governing agency and apparent authority[115]. There are other, highly pragmatic, reasons for this approach that cannot be ignored. The adversarial system of trial (including its variant of the accusatorial criminal trial) could not operate effectively without according a high measure of deference to the multitude of decisions necessarily made by a legal representative in the course of conducting a trial[116]. The appellate approach is thus a practical one, influenced by the realities of our trial process.
In criminal appeals, courts are alive to the dangers of retrospective wisdom and appellate hindsight applied to instantaneous professional judgments that have to be made, often in fraught circumstances[117]. Moreover, they understand the natural tendency of some who "have been properly and deservedly convicted to attribute the result to the perceived incompetence of their counsel"[118].
Considerations such as these have led appellate courts everywhere to insist that those who complain on the score of suggested incompetence in their legal representation at trial must establish the defect of the resulting verdict or otherwise show a "miscarriage of justice". It is not the function of the appellate court to attempt "to rate counsel's conduct of the case according to some scale of ineptitude"[119].

[62]

"In some cases, the conduct of counsel may be such that it has deprived the accused of a fair trial according to law. If the conduct of counsel has resulted in an unfair trial, that of itself constitutes a miscarriage of justice. If, for no valid reason, counsel fails to cross-examine material witnesses or does not address the jury, for example, the accused has not had the trial to which he or she was entitled. In such a case, the failure of counsel to conduct the defence properly is inconsistent with the notion of a fair trial according to law. It cannot be right to insist that the appeal can succeed only if the court thinks that counsel's conduct might have affected the verdict. To require the accused to persuade the court that the conduct might have affected the verdict comes close to substituting trial by appellate court for trial by jury. 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."

[63]

Procedural and substantive outcomes: In my view, McHugh J was right to conclude that, for a criminal appeal to succeed on an argument of incompetent representation at trial, it is not a universal requirement that the accused must establish that the conduct complained of might have affected the result[126].
The issue is not finally settled by past authority in this Court. It did not need to be decided to reach the outcomes stated in TKWJ and Ali. Any observations on the point in those decisions were obiter dicta. Nevertheless, in Ali, remarks of Callinan and Heydon JJ lend some support to the conclusion expressed by McHugh J in TKWJ. Thus in Ali[127], Callinan and Heydon JJ said:

[64]

"The appellant has not demonstrated that any conduct on the part of his counsel at the trial deprived him of a fair chance of acquittal. In saying that we would not want to be taken as suggesting that the fact that a case appears a strong one in any way diminishes the obligation of those conducting the trial to ensure that it is a fair one. Indeed, the contrary is the case."

[65]

In the end, Callinan and Heydon JJ rejected the appeal in Ali because counsel's errors "were not egregious ones"[128]. They held that the impact of the errors, if any, "could only have been slight and temporary". They were cured by accurate judicial directions. On this ground, "no miscarriage of justice occurred"[129]. Because the issue is not settled by authority, it is open in this appeal where, in my view, it is specifically presented for resolution.
Moreover, as a matter of principle, neither the criminal appeal legislation nor the law generally confine attention solely to pragmatic consequences. The law is concerned with principles and with the appearance of justice in the conduct of trials[130]. This concern derives from the long experience of the law that substantive justice is heavily dependent upon (and often flows from) observance of proper procedures and the conduct of hearings untainted by relevant unfairness. Care must be taken against dismissing complaints about the incompetence of legal representation solely on the basis that an impugned decision of counsel could have been taken competently, although for different reasons. That approach involves an inevitable element of speculation and retrospective justification. In a case of serious and multiple complaints (as here) the accused is entitled to object that he has been deprived of a fundamental right to a fair trial, with his defence put to the jury a priori, not considered only in a trial before appellate judges in which the apparent errors are justified or explained away ex post.
To the extent that there is any doubt as to the meaning of the criminal appeal statute, the provisions of the International Covenant on Civil and Political Rights[131] may assist in resolving the ambiguity. Australia has no constitutional Bill of Rights. However, it is a party to that Covenant, and to the First Optional Protocol[132] which inevitably brings such provisions of international law to bear upon the elucidation of Australian law[133].
By Art 14.1 of the ICCPR, "[i]n the determination of any criminal charge against him … everyone shall be entitled to a fair … hearing by a competent, independent and impartial tribunal established by law". By Art 14.3, "[i]n the determination of any criminal charges against him, everyone shall be entitled to … minimum guarantees, in full equality", including "(b) [t]o have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing" and "(d) … to defend himself … through legal assistance of his own choosing".

[66]

"… this court's obligation to quash convictions which are the product of a miscarriage of justice requires that it consider the impact of counsel's incompetence on both the reliability of the result, and the fairness of the process by which that result was achieved. A reliable verdict may still be the product of a miscarriage of justice if the process through which that verdict was reached was unfair."

[67]

In Sungsuwan v The Queen[139], the Supreme Court of New Zealand likewise identified a distinction between cases where errors or irregularities in the trial, occasioned by counsel error, rendered the verdict unsafe and cases where they resulted in the denial of the right to a fair trial per se. In each of those instances, Elias CJ observed[140]:

[68]

"It is difficult to envisage that a verdict reached without fair trial or which is unsafe will not amount to a substantial miscarriage of justice."

[69]

In endorsing this dual foundation for relief, Gault, Keith and Blanchard JJ cited with approval a statement of the Privy Council in Teeluck v State of Trinidad and Tobago[141]. In that case, Lord Carswell, giving the judgment of the Judicial Committee, said[142]:

[70]

"There may possibly be cases in which counsel's misbehaviour or ineptitude is so extreme that it constitutes a denial of due process to the client. Apart from such cases, which it is to be hoped are extremely rare, the focus of the appellate court ought to be on the impact which the errors of counsel have had on the trial and the verdict rather than attempting to rate counsel's conduct of the case according to some scale of ineptitude."

[71]

Obviously, care needs to be taken in deriving support from judicial opinions focused on texts other than the common form of Australian criminal appeal legislation applicable in the appeal. This is especially so because constitutional, statutory or treaty requirements existing in other jurisdictions may import norms missing from the Australian legal scene.
Nevertheless, the trend of the decisions that I have mentioned appears to sustain the distinction drawn by McHugh J in TKWJ. Sometimes, rarely, the misbehaviour, errors or incompetence in the legal representation of an accused at trial may be so egregious, frequent or obvious as, without more, to amount to a miscarriage of justice. The "proviso" postulates upholding the verdict at the conclusion of a trial that has met the minimum standards required for a fair trial. It does not envisage the affront to the appearance of justice of upholding orders that have followed a proceeding that did not amount, in law, to a proper trial at all[143].

[72]

Unsafe outcome analysis: I turn to apply the foregoing principles to the evidence and circumstances of the appellant's trial. I can do this briefly because the reasons of Callinan and Heydon JJ do so comprehensively. Material incompetence of the appellant's legal representation at his trial was contested as to particular instances. However, in my view, it could not be disputed that, in important respects (especially in the failure to research and explain to the appellant the legal ingredients of the offence and to take a thorough proof from him on the basis of which available trial strategy could have been determined with his informed instructions) material incompetence was clear-cut. It was abundantly established.
In their reasons, Callinan and Heydon JJ have described the powerful objective case that the prosecution built against the appellant at his trial[144]. That case was based mainly on the tapes of intercepted telephone conversations and the unchallenged observations of the appellant in the company of Jorge Velarde, conversing by telephone with Peter Jackson[145]. So overwhelming is the objective evidence presented against the appellant in this and other respects that the application to the record of a correct understanding of the offence of being "knowingly concerned" in the undoubted importation into Australia of the prohibited drug cocaine, clearly establishes the appellant's involvement in, and guilt of, that offence. It renders the belatedly suggested "defences" (that the appellant was ignorant of the nature of the drug; that he thought any drug importation was destined for New Zealand; and that he had cut off relations with the importers) thoroughly unconvincing.
These "defences" were, as the respondent submitted, an after-thought suggested by the questions raised by the jury after they had been deliberating for nearly 24 hours[146]. Those questions asked whether the accused needed to know the final destination of the shipment and what would happen if he were knowingly concerned with the bringing of the drugs to another destination, not Australia, which only became the destination "through revised planning or other reasoning"[147]. No complaint was made of the trial judge's directions in answer to these questions. But now the appellant has latched on to the questions. He has propounded "defences" that are unconvincing when judged against the totality of the evidence, especially that contained in the recorded tapes.

[73]

I agree that the appeal should be dismissed.
CALLINAN AND HEYDON JJ. The only ground of appeal in this case, as in the recent case of Ali v The Queen[154], is that the appellant's counsel at his trial was so grossly incompetent that it miscarried, and that the Court of Appeal of Queensland should have so concluded.
The appellant was convicted by the Supreme Court of Queensland (Philippides J with a jury) of being "knowingly concerned in" the importation of cocaine into Australia contrary to s 233B of the Customs Act 1901 (Cth). He was sentenced to 22 years imprisonment with a non-parole period fixed at 11 years.

[74]

It is necessary to set out the facts in some detail, not only because the events with which the Court is concerned are complex, but also because of the compelling complexion that they assume when they are so stated.
Police and Customs officers intercepted the yacht "Sparkles Plenty" in Moreton Bay on 3 May 2001. On board they found 99 packets of cocaine, 29 of which were damaged by water. The undamaged cocaine weighed about 89 kilograms and had a purity of 70 per cent.
There were two men on the yacht when it was boarded, a citizen of the United States, Peter Jackson, and his son Gareth Jackson. They had left Mexico in May 2000 on the yacht and crossed the Pacific Ocean to Noumea which they reached on 8 November 2000. From there they flew to Australia on 7 December 2000, where they remained until their visas expired in early March 2001.
On 7 March 2001, Peter Jackson flew to the United States, where he obtained a false United States' passport in the name of "David Geschke". On 28 March 2001 he flew from the United States to Noumea on the false passport. He then sailed the yacht from Noumea to Moreton Bay where the boat was intercepted. The false passport and other items representing him to be Geschke were found on board.
For part of the period of three months in which the two men were in Australia they lived in a motel in Sydney. A listening device had been installed in their room to intercept telephone conversations. Eleven of those conversations were between Peter Jackson and the appellant, who is an Australian citizen and was then living in Los Angeles. Additionally, there were intercepted conversations between Jackson and other participants in the importation of the cocaine, Jackson's two sons Gareth and Klaus, Jorge Velarde, and the appellant's sister, Sylvia Aldren.
The role of Velarde, another citizen of the United States, was to act as an intermediary between Jackson and unidentified Australian recipients of the cocaine.

[75]

At the trial, the appellant admitted the passage of the yacht from Mexico, the identity of the various persons on board at different times, the movements of Peter and Gareth Jackson, the use by Peter Jackson of the false passport, the quantity of cocaine found on the yacht on its interception in Moreton Bay, and that Sylvia Aldren was his sister.
It remained then for the prosecution to prove that the appellant was knowingly concerned in the importation of the cocaine. This it sought to do by the tender of tapes of the telephone conversations. Not surprisingly, taken in isolation, the contents of some of the conversations were cryptic.
At the opening of its case, the prosecution alleged the appellant was knowingly concerned in the importation because he knew of it and "he gave some practical assistance in some way". In his address to the jury, the prosecutor characterized the core issues as ones of "knowledge and practical assistance" and argued that the appellant was one of the "inner circle" involved in this venture.
The prosecutor conducted the case upon the basis that it was for the prosecution to prove that the appellant's conduct had "the effect of pushing this process along", thereby perhaps unnecessarily raising the hurdle which the prosecutor had to surmount to prove the offence[155]. Seven particulars were provided of the respects in which the appellant was said to be concerned in the importation. They were, first, that the appellant had travelled from the United States to Noumea to discuss the importation of the cocaine by Jackson under a false name. Secondly, the appellant inquired about hiring a yacht. The third was that the appellant facilitated contact between Jackson and Velarde. Next, it was said that the appellant helped Jackson to resolve difficulties in making arrangements for the importation. Fifthly, the prosecution pointed to the assistance afforded by the appellant in arranging for his sister to help Jackson to obtain a false passport. Sixthly, the prosecution contended that the purpose of a meeting between the appellant and Jackson at Los Angeles Airport was to assist with the importation of the cocaine. The last particular was that the appellant assisted Jackson to obtain the false passport.
The yacht was owned by a company controlled by Jackson and his family. In its voyage across the Pacific it had berthed at Papeete and Tonga before arriving in Noumea. It had remained there for more than five months before sailing for Moreton Bay. The delay, the prosecution submitted, was caused by problems the offenders had encountered in arranging for the importation: water damage to the cocaine; delays on the part of Velarde in making satisfactory arrangements for the distribution of the cocaine in Australia; and the detection by Customs officers of this country of a minute quantity of cocaine in Peter Jackson's luggage on his arrival in Australia. Despite the absence of a charge in relation to that, the prosecution asked the jury to infer that Jackson became so concerned that he had, or may have been identified and recorded as a cocaine user, that he decided to obtain a false passport to reduce the chances of apprehension on any re-entry to Australia. The intercepted conversations between the appellant and Jackson, the prosecution contended, showed clearly that the former was assisting or attempting to assist in the resolution of the problems.

[76]

"If the bad guys have got these things why can't the good guys buy 'em ... there ... must be some way where we can buy one 'cause ... there's a lot of business involved."

[77]

In another conversation on 22 February 2001, Jackson reminded the appellant that the appellant had previously said that it was possible to get what he referred to as "some kind of ... paperwork" in Australia. The appellant said that he would make inquiries and call Jackson back between 4 pm and 6 pm that afternoon.
The appellant did in fact call Jackson at about 4:15 pm on that day. He said that he had made inquiries, and that he had "good news [regarding the] documentation you need for applying for the blue credit card", said by the prosecution to be code for an Australian passport. During the conversation, he told Jackson what needed to be done and that he had a sister in Sydney with whom he had made arrangements to help Jackson achieve this. He said that he had arranged for her to call Jackson the following morning. Early the next morning the appellant telephoned Jackson to ask if his sister had called, and if not, to tell him that she would be calling soon. The appellant then gave Jackson advice to obtain several sets of photographs. About an hour after this call, the appellant's sister did telephone Jackson. This was the first of several telephone conversations between them. They made arrangements to meet later that day. After that telephone call, Jackson was observed entering a photographic shop, and subsequently meeting Sylvia Aldren as arranged.
Over the next few days, the appellant telephoned Jackson from time to time, apparently making inquiries as to what progress was being made with the matter the subject of Sylvia Aldren's assistance. On 28 February, a conversation between Jackson and Aldren recorded her as saying that she was having difficulty in obtaining people to vouch that they had known Jackson for the requisite period in support of his application for an Australian passport. Aldren told Jackson that she had tried to persuade a particular person to assist, saying that she had told him that "maybe it could be up to five (thousand)" but that he had "still said no ... [and that] he would be willing to do it for nothing if he had known you for twelve months but on the application ... it says ... that the person only had to know you for twelve months." A couple of days later, Aldren told Jackson that she had unsuccessfully sought assistance from others.
On the prosecution case, the tapes of the intercepted telephone conversations demonstrated that by 2 March 2001, Jackson was aware that his son Klaus had successfully retrieved the Florida identification documents. Following this there were conversations between Jackson and the appellant in which Jackson's return to the United States, so that he could try to obtain a new "Bible", was discussed. The prosecution submitted that "Bible" also was code for a new passport. Jackson's visa was to expire on 8 March 2001, three months after his entry. The appellant was recorded as saying to Jackson:

[78]

"[I]f you've ... got the things from ... Florida ... I can get the other thing ... you will have your new Bible probably within from the day you come with me, probably seven to ten days after."

[79]

Shortly before he left Australia, Jackson was telephoned by the appellant to arrange to meet at Los Angeles Airport upon Jackson's arrival. In that conversation, Jackson referred to his having to "pick up those things from ... Klaus" to which the appellant said:

[80]

"Okay that's fine because look ... I've contacted my friend and you know ... she ... is ... all ready to go the only thing we need to do is of course ... pay you know like because ... we need to pay a fee of course."

[81]

The prosecution said that this was a reference to the procuring from the person described as "my friend", a false passport with the benefit of the documents collected by Klaus Jackson.

[82]

Evidence obtained by surveillance established that Jackson's next meeting with the appellant was on 7 March 2001 at Los Angeles Airport. There was no evidence of anything done by the appellant after this meeting, until he was apprehended in Los Angeles as "Sparkles Plenty" was intercepted in Moreton Bay.
Velarde's inability to find a suitable intermediary was contended to be the subject of several discussions between Jackson and the appellant. The tenor of those discussions was of complaints by Jackson that Velarde was not doing his job and was difficult to contact. The appellant, who was under regular surveillance by authorities in Los Angeles, was in contact with Velarde who was in the United States. At this time Jackson was staying in a motel in Sydney. On 22 February 2001, the appellant called Jackson and told him that "our friend", a reference to Velarde, was on the way to see him.
Velarde did not arrive on 22 February 2001. The following day the appellant called Jackson and told him as much. On 25 February, he again telephoned Jackson and said that he had spoken to "our friend ... George Harrison". At the trial the prosecution alleged that "George Harrison" was in fact "Jorge Velarde". The appellant told Jackson that "George Harrison" would definitely call on 27 February.
There was a telephone conversation between Jackson, the appellant and Velarde, on 27 February. The appellant and Velarde used the same telephone. They were under surveillance at the time by a Customs officer of the United States who observed them using a public pay telephone. The Customs officer saw the appellant make a call and appear to have a conversation for a few minutes before handing the phone to Velarde who continued it. That observation corresponds with a conversation between Jackson and the two men at that time which was recorded. The recording included a heated argument between Jackson and Velarde, in which allegations were made by both men regarding their respective contributions to the difficulties in implementing a plan. Velarde referred to the "damage to goods" telling Jackson that he needed to produce them for "these people's accounting". The evidence of the Customs officer observing Velarde and the appellant at the pay telephone was that the appellant stood by, within earshot throughout this conversation, after which they drove to a restaurant where they talked for some time. On the following day, the appellant called Jackson and apologised for the manner in which Velarde had spoken to him.

[83]

"NUDD: I also spoke to a couple of my friends in Australia and they were saying that ... if you head up north right ya know the same place I'm from ... just ... is maybe ... simplest to actually hire a yacht from up there.

[84]

JACKSON: Oh definitely it is ... but they don't like that ... overseas stuff at all I ... inquired a bit.

[85]

JACKSON: If there was a meeting a way to do a meeting you could maybe get away with that ya know ... it wouldn't really help my position but it would help the whole thing maybe.

[86]

NUDD: Why don't you ... get your son to go to Gilligan's Island pick up your bus and come by and pick you up?

[87]

JACKSON: Yeah that's ... another way but that's ... what I'm thinking more or less but it's ... you know that contamination problem is severe.

[88]

NUDD: Oh the contamination right yeah ... I completely forgot about that."

[89]

In a later conversation that day, Jackson was apparently discussing his plans when he said: "I'm deciding between here and the island" and said that one possibility was "what we were talking about before kind of meeting with the charter thing". The appellant asked: "why don't you charter one there? Charter the whole thing?" Jackson replied: "Well I am [going] to try some more. The first place was not interested ... and meet half way is what I was thinking ... to cut the time thing". A few days later, the appellant asked Jackson: "... have you made anymore calls for a charter?" to which Jackson replied: "Yeah I called today there it might be possible I really would like to go up there and talk to him in person".

[90]

Much of the other evidence of the prosecution was directed to the probity of the recordings of the telephone conversations and the movements of the participants. None of these was susceptible to any credible challenge. The admitted facts, the incontrovertible evidence of the movements of the participants, and the probity of the tapes, left the prosecution merely to submit that the contents of the last, taken with the appellant's association with Velarde and the introduction of his sister to the project, proved that the appellant was knowingly concerned in the importation. Effective cross-examination on any of these matters would have enjoyed no reasonable prospect of success.
It is now necessary to turn to the incompetence of counsel for the appellant at the trial. In examining that topic, it is necessary to bear in mind that the criticisms made below must be considered in the light of the fact that counsel was not represented in this appeal. It must also be remembered, as is explained below, that it is very hard to see what case on behalf of the appellant counsel could legitimately have advanced which would have had any prospect of success.
The incompetence of counsel to which the appellant particularly pointed was the former's conduct of the trial, from beginning to end, under a fundamental misapprehension as to the elements of the offence with which the appellant was charged. The misapprehension was that it was an element of the offence that an offender must provide practical assistance to any person more directly concerned in the commission of such an offence or that before an offender could be convicted he must be shown to have caused the venture to move forward. It fell to the trial judge to correct counsel and this her Honour did in her summing up to which no objection is or could be made. Her Honour said this:

[91]

"I have to correct some things on this issue said in addresses. It is not the law that in order to be concerned in the importation the accused must put forward an original idea or must assist in taking the venture in a new or different direction, nor is it the law that for the assistance to be practical that it must be effective. Rather, what is required is that the participation is a practical part of the venture. A person can give practical assistance even though the party to whom it is given is an expert on the subject of the assistance. The question is not whether the importation would have taken place without the accused, but whether the accused was concerned in the importation. Being concerned in bringing cocaine into Australia is not limited to direct involvement in the means by which the drugs were brought here such as handling the goods or sailing the boat or loading the goods or things of that nature. Someone who makes arrangements or assists in making arrangements for the importation can also be said to be concerned in the importation. The word 'concerned' covers a wide range of activities and includes acts and events which precede the actual bringing of the prohibited goods into the country. It is sufficient if a concern, that is the part played by the accused, occurs in some part of the venture which has as its object bringing drugs into the country, that is to say, if the involvement or participation is a practical part of the venture, the person is concerned in even though the participation occurs before their particular activity which actually brings the goods here."

[92]

There were other respects in which counsel for the appellant at the trial, who had not previously conducted a major criminal trial before a jury, was incompetent. Neither he, nor the solicitor representing the appellant, obtained his version of events at any time. Even so, counsel submitted that the appellant knew that Jackson was importing cocaine into Australia. Repeating his understanding of a need for practical assistance, at one point in his address to the jury he said this:

[93]

"My task today on the issue of practical assistance - and that's really the defence case - is to demonstrate that, really, anything that my client did, anything that you might be satisfied that my client did, is not, in the relevant criminal sense, a sense that will attract a very severe penalty, practical assistance."

[94]

Both in the Court of Appeal and in this Court, the appellant has submitted that a failure to call him was another example of his counsel's incompetence. As will appear, had the appellant given evidence, the defence that he would have tried to mount was that he did not know the precise destination of the cargo, which turned out to be cocaine, and that he thought that it could have been pseudoephedrine or some other like substance, and that he believed that the boat and its cargo were headed for New Zealand.
There is one further aspect of the conduct of the trial of counsel for the appellant to which reference should be made. In his address to the jury, he appeared clearly to accept on behalf of his client that it was his client's voice on the telephone that had been tape-recorded:

[95]

"I didn't have to put [the appellant] in the witness box, that's his undoubted right and, having said that, you can't draw ... an adverse inference, and having said that about his silence he's hardly been silent in this Court, has he? You've heard him on tape and those tapes I'd ask you to bear in mind are contemporaneous with events."

[96]

Again it was the trial judge who picked up the possibility of a misapprehension. Her Honour asked him whether he had instructions from his client that it was he who spoke on the telephone. The appellant's counsel said that these were his present instructions. When the trial resumed however, on the following Monday, and her Honour again in the absence of the jury, sought clarification, after some discussion counsel said that his instructions were to put the Crown to proof of the identity of the speaker on the telephone, and other substantial matters. Nonetheless he asked whether he might take further instructions. The trial judge allowed him to do so. After a brief adjournment, he then informed her Honour that he held instructions to admit that it was his client's voice on the tapes.
After the jury had been deliberating for nearly 24 hours, they sought assistance from the trial judge by asking the following two questions[156]:

[97]

"1. Does the accused need to know the final destination of shipment, ie, Australia, in order for him to have committed an illegal act as charged?

[98]

If the accused was knowingly concerned in the bringing into destination X, if not being Australia, of prohibited imports and the ultimate destination became Australia through revised planning or other reasoning, does the charge still apply?"

[99]

With respect to the first question, her Honour said:

[100]

"And the answer to that question is yes. The charge is importation of the drugs into Australia and I think you now have copies of the indictment."

[101]

With respect to the second question, her Honour said:

[102]

"And as to question 2, the answer is that if the accused knew that the goods were being imported into Australia as a result of - well if the accused knew that the goods were being brought into Australia [and] that the ultimate destination was Australia and by whatever means, whether it be revised planning or whatever, the charge still applies. Because the charge is the importing of the goods into Australia and that is what the accused needs to have knowledge of."

[103]

The principal judgment of the Court of Appeal of Queensland, (Davies JA, White and McMurdo JJ) which dismissed the appellant's appeal, was given by McMurdo J. The appellant argued there the same ground as he relied upon in this Court. The particulars of incompetence to which the appellant's counsel on the appeal referred (who was not of course the same counsel as conducted the trial) were ten in number[157]:

[104]

"(a) Counsel failed to understand, and properly advise the Appellant on, the elements of the offence charged;

[105]

(b) Counsel conducted the defence case on the basis of his misunderstanding of the meaning of the term 'knowingly concerned';

[106]

[107]

(d) Counsel failed to properly advise the Appellant upon such instructions;

[108]

(e) Counsel failed to appreciate or advance two lines of defence reasonably open upon the Appellant's instructions;

[109]

(f) Counsel failed to appropriately advise the Appellant in relation to giving evidence;

[110]

(g) Counsel made admissions of fact in error and/or without instructions to do so;

[111]

(h) Counsel failed to seek an appropriate direction concerning the way in which the jury could use the contents of discussions between persons, such discussions not involving the Appellant;

[112]

(i) Counsel failed to object to inadmissible and highly prejudicial material contained in the telephone intercept tapes being admitted and failed to seek an appropriate direction from the learned Trial Judge relating to such material;

[113]

(j) Counsel introduced highly prejudicial and inadmissible material in his closing address."

[114]

The appellant and his counsel at the trial gave evidence on the appeal. It is from that evidence that the purported defence upon which the appellant would have sought to rely had he been properly represented, emerges. In addition to the matters that we have already mentioned, the appellant claimed that he did not know that Jackson was importing cocaine into Australia, that he had no financial or other beneficial interest in the importation, and that he dissociated himself entirely from the affair of the "Sparkles Plenty" on or about 7 March 2001.
In the Court of Appeal, McMurdo J correctly identified the ultimate question as being whether there had been a miscarriage of justice[158]. After reviewing the authorities, his Honour said this[159]:

[115]

"As mentioned, the mainstay of the prosecution case was the evidence of the intercepted telephone conversations, and the evidence that it was the accused who was recorded speaking to Jackson was compelling. Without evidence given by or for the accused, the outcome depended upon the inferences which the jury could draw from those conversations. This required some considerable interpretation of the words spoken."

[116]

The difficulty for the appellant with respect to his claim that he should have been advised to give evidence at his trial, as pointed out by McMurdo J, was that he would have had to undergo cross-examination on his assertion that all that he knew was that the cargo may have been pseudoephedrine or a like narcotic and that its destination may have been New Zealand, assertions self-evidently of little credibility and rendering the appellant vulnerable to a detailed cross-examination about the telephone conversations and his involvement generally. McMurdo J was accordingly of the view that a failure to call the appellant was most unlikely to have deprived him of a chance of an acquittal, and to have caused any miscarriage of justice.
With respect to the appellant's claim that he would have given evidence of his withdrawal from any involvement and dissociation from the project, the difficulty for him is that by then he had in fact participated in the importation which, as Gleeson CJ said in Leff[160], is a process or a venture not confined to the precise moment of the entry of a narcotic into Australia. Accordingly, again as McMurdo J pointed out, this evidence, had it been given, taken particularly with the other evidence on the tape recordings, would have been most unlikely to have availed the appellant.
With respect to the other particulars of incompetence, McMurdo J said this[161]:

[117]

"It is necessary to mention those suggested particulars of incompetence which have not been already addressed. The first is that counsel should have sought appropriate directions concerning the way in which the jury could use the content of discussions between persons, as recorded on the tapes, where those discussions did not involve the appellant. On the strategy which counsel employed, of endeavouring to make his client seem irrelevant to the scheme which was organised by others, there was some potential advantage in allowing the jury to hear these other conversations. Perhaps it was arguable that some of this evidence was inadmissible, because it was not evidence of the existing venture and the appellant's role in it. However, it does not appear to me that some particular direction was required and there is no ground of appeal which is critical of the summing up.

[118]

A further complaint is that counsel failed to object to part of the tapes in which the appellant was recounting an occasion on which he was stopped at the airport and was searched. This is a fair criticism of counsel, but it hardly provides a basis for thinking that there has been a miscarriage of justice. Counsel is also criticised for failing to object to a passage from the tapes in which the appellant was recorded as saying that he had been involved 'quite a few times' in what the prosecution interpreted as obtaining false identification. In my view, however, that was admissible as evidence of the case that the accused had attempted to assist Jackson to obtain a false passport.

[119]

Lastly, criticism is made of counsel for saying in the course of his address that the appellant was arrested in the United States for visa violations, deported to Australia, remanded in custody from the date of his arrest at the trial and had lost his property which had been seized and sold by the Australian government. The evident intention of counsel was to try to engender some sympathy for his client, consistently with his submission that he was facing such a serious charge in circumstances where he had had no close involvement and there was no evidence of any financial reward. In my view, the volunteering of this information, whilst inappropriate, was not so prejudicial as to be significant here."

[120]

In this Court, the appellant repeats the arguments which he advanced in the Court of Appeal. In developing his submissions, he argued that the incompetence involved here went to the root of his representation at trial, and that the decisions of his counsel were neither informed, rational nor made for any tactical reason: that he therefore has simply not had a fair trial according to law. It is not to the point, he argued, that, put another way, or in some other context, or with a different focus, some of the arguments made may have had some validity, or might be able to be plausibly or justifiably explained in retrospect. The entire defence as conducted by his counsel at the trial led inevitably to the conclusion that the appellant was guilty.

[121]

The prosecution's principal submission is that the case against the appellant was of such a kind and so strong that it seriously limited the forensic choices available and recognizable by even the most competent of counsel. It was further submitted that there were no facts which could have been elicited from any witness in cross-examination which could have supported or improved the defence. The tapes of the telephone conversations were the mainstay of the case for the prosecution and these were effectively beyond denial, and highly inculpatory, indeed consistent only with guilt.

[122]

In TKWJ v The Queen[162], Gaudron J with whom Gummow J agreed, pointed out that the inquiry of an appellate court in a case of this kind was an objective one, and whether, so viewed, the course taken by counsel was capable of explanation[163]. Hayne J, with whom Gummow J also agreed, too said that an objective assessment of the conduct of the case is required[164].
In this case, on any assessment, whether subjective or objective, counsel's conduct was incompetent to a serious degree. So too, on either a subjective or an objective assessment, some at least of counsel's conduct cannot be rationally justified or explained, although perhaps it can be said that the overstatement of the matters required to be proved by the prosecution may have contributed to the appellant's counsel's further and significantly greater overstatement of them. That is not however the end of the matter. Was the appellant's trial a fair one in all of the circumstances? Did justice miscarry to the extent that the appellant was deprived by his counsel's conduct of a chance of an acquittal? In answering these questions, we keep in mind that the more apparently serious the offence, the greater the need there generally will be for punctiliousness in all respects in the conduct of the trial.
In the end we have come to the conclusion that the appellant was not deprived of a chance of an acquittal despite the incompetence of his counsel at the trial. This is so because we consider the case against the appellant to have been a strong one, and indeed one which was effectively unanswerable. The questions he asked, the statements he made, his invitations, his advice, his persistence and his comments during the numerous telephone conversations were not those of a merely interested, but innocent bystander. Nor was the introduction of his sister to Jackson the act of a person remote from the enterprise. As the prosecution points out, there were no witnesses whom the appellant could call who could give any convincing evidence to controvert any aspect of the case against him. One among many of the inculpatory references during the telephone conversations was to the ion scanning equipment. It is almost impossible to believe that the appellant would have made that reference unless he was concerned in the project of importing the cocaine into Australia.
The appellant's counsel at the trial did misunderstand, and accordingly fail to advise the appellant on the elements of the offence with which he was charged. He conducted the whole case upon the basis of that failure. But the trial judge did have a proper understanding of the elements of the offence, and was careful to instruct the jury correctly about them. It is not open to this Court, or indeed to any court, to take the view that had the appellant's counsel advised the appellant accurately about the elements of the offence, the appellant might, or would have changed his story to enable him to deny and disprove one or more of those elements. The Court now does know what the appellant's story is, and for the reasons which we have already given, and the reasons stated by McMurdo J in the Court of Appeal, that story would have been most unlikely to have provided an answer, or raised even a reasonable doubt with respect to the case for the prosecution, had it been told to the jury.

[123]

TKWJ v The Queen (2002) 212 CLR 124 at 134 [30] per Gaudron J, 147-148 [74]-[76] per McHugh J. ↑

[124]

(1937) 57 CLR 170 at 180 per Latham CJ, Rich, Dixon, Evatt and McTiernan JJ. ↑

[125]

(2002) 212 CLR 214 at 130-131 [16] per Gleeson CJ, 133 [26]-[27] per Gaudron J, 155 [95] per McHugh J, 158 [107] per Hayne J. ↑

[126]

[1989] 1 WLR 497 at 502; [1989] 2 All ER 586 at 590. ↑

[127]

Strickland v Washington 466 US 668 at 687 (1984). ↑

[128]

(2002) 212 CLR 124 at 134 [31] per Gaudron J, 148 [75], 156 [97] per McHugh J, 157 [101] per Gummow J, 157 [103] per Hayne J. ↑

[129]

TKWJ v The Queen (2002) 212 CLR 124 at 134 [31] per Gaudron J. ↑

[130]

(2002) 212 CLR 124 at 149‑150 [79] per McHugh J. ↑

[131]

(2002) 212 CLR 124 at 135 [33] per Gaudron J, 149 [79] per McHugh J, 157 [101] per Gummow J, 157 [104] per Hayne J. ↑

[132]

(2002) 212 CLR 124 at 158 [107]‑[108] per Hayne J. ↑

[133]

R v Nudd [2004] QCA 154 at [74] per McMurdo J. ↑

[134]

Wheeler, "Due Process, Judicial Power and Chapter III in the New High Court", (2004) 32 Federal Law Review 205. ↑

[135]

From a judgment of the Supreme Court of Queensland, Court of Appeal ("Court of Appeal"): R v Nudd [2004] QCA 154. ↑

[136]

The other two are TKWJ v The Queen (2002) 212 CLR 124 ("TKWJ") and Ali v The Queen (2005) 79 ALJR 662; 214 ALR 1 ("Ali"). ↑

[137]

(1992) 177 CLR 292 ("Dietrich") reversing McInnes v The Queen (1979) 143 CLR 575. ↑

[138]

Dietrich (1992) 177 CLR 292 at 310 citing Cuyler v Sullivan 446 US 335 (1980) and Evitts v Lucey 469 US 387 (1985). ↑

[139]

Provision was earlier made for proceedings in forma pauperis. See eg the Judicial Committee Rules (NSW), r 8 in Walker (ed), The Practice of the Supreme Court of New South Wales at Common Law, 4th ed (1958) at 636. In criminal trials dock briefs and like assignments were the improvisations tolerated by Australian law before modern publicly funded legal aid appeared. See Disney, Lawyers, 2nd ed (1986) at 461-525. ↑

[140]

(2005) 79 ALJR 755; 214 ALR 92 ("D'Orta-Ekenaike"). ↑

[141]

(2005) 79 ALJR 755 at 792 [208]; 214 ALR 92 at 144. ↑

[142]

As to the expansion of the immunity, see D'Orta-Ekenaike (2005) 79 ALJR 755 at 794 [216]; 214 ALR 92 at 146. ↑

[143]

Arthur J S Hall & Co v Simons [2002] 1 AC 615, reversing Rondel v Worsley [1969] 1 AC 191. ↑

[144]

Lai v Chamberlains [2005] 3 NZLR 291. See D'Orta-Ekenaike (2005) 79 ALJR 755 at 793-794 [215]; 214 ALR 92 at 145-146. ↑

[145]

See references to the law in the United States, Canada, the European Union, Singapore, India and Malaysia in D'Orta-Ekenaike (2005) 79 ALJR 755 at 793 [211]; 214 ALR 92 at 145. ↑

[146]

D'Orta-Ekenaike (2005) 79 ALJR 755 at 813-814 [331]; 214 ALR 92 at 174 citing Boland v Yates Property Corp Pty Ltd (1999) 74 ALJR 209 at 241 [148]; 167 ALR 575 at 617-618; Arthur J S Hall & Co v Simons [2002] 1 AC 615 at 716 per Lord Hope of Craighead, 730 per Lord Hutton. ↑

[147]

Teeluck v State of Trinidad and Tobago [2005] 1 WLR 2421 at 2433 [39] (PC). ↑

[148]

See for instance, Civil Liability Act 2002 (NSW), Pt 2A. ↑

[149]

eg, Criminal Code (Q), s 672A ("the Code"); Sentencing Act 1995 (WA), Pt 19. ↑

[150]

cf Mallard v The Queen (2005) 80 ALJR 160; 222 ALR 236. ↑

[151]

(1934) 52 CLR 335 ("Tuckiar"). For discussion of this case, see TKWJ (2002) 212 CLR 124 at 147 [74] per McHugh J. ↑

[152]

(1934) 52 CLR 335 at 339. The accused was described as an "uncivilised aboriginal native". ↑

[153]

There were, however, earlier cases such as Re Knowles [1984] VR 751 and R v Birks (1990) 19 NSWLR 677. ↑

[154]

Reasons of Callinan and Heydon JJ at [116]-[148]. ↑

[155]

R v Nudd [2004] QCA 154 at [50], per McMurdo J. ↑

[156]

Under the Customs Act 1901 (Cth) ("Customs Act"), s 233B (as it provided then) of being "knowingly concerned" in the bringing into Australia of prohibited imports, being a quantity of cocaine not less than a commercial quantity. The Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Act 2005 (Cth), repealed ss 233B and 235 of the Customs Act. By the amending Act, as from 6 December 2005, the offence of bringing into Australia prohibited imports is provided by s 233(1)(b) of the Customs Act. The amendments do not affect offences committed earlier. ↑

[157]

[2005] HCATrans 654 at 695; Customs Act, s 235 (as it provided then). ↑

[158]

Trial counsel stated that he did look up relevant authority, including The Queen v Tannous (1987) 10 NSWLR 303 ("Tannous"). However, in the light of his conduct of the trial, this appears at best to have been first, a superficial and secondly, mistaken reading of the cases. See [2005] HCATrans 654 at 2494. ↑

[159]

R v Nudd [2004] QCA 154 at [72], [73], [75], referring to instances (5), (6), (7), (8) and (9). ↑

[160]

Discussed in Conway v The Queen (2002) 209 CLR 203 at 228 [68]-[69] ("Conway"), citing State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306 at 322 [72]; 160 ALR 588 at 609 and authorities there cited. ↑

[161]

R v Berger [1894] 1 QB 823. See O'Connor, "Criminal Appeals in Australia Before 1912", (1983) 7 Criminal Law Journal 262. ↑

[162]

An exception arises in criminal appeals to the Federal Court of Australia, pursuant to Federal Court of Australia Act 1976 (Cth), s 28(1)(f). See Conway (2002) 209 CLR 203. ↑

[163]

Conway (2002) 209 CLR 203 at 228 [68]. See also Weiss v The Queen [2005] HCA 81 at [12]-[15]. ↑

[164]

The section has also been considered by this Court in recent years in KBT v The Queen (1997) 191 CLR 417; Gilbert v The Queen (2000) 201 CLR 414; and Festa v The Queen (2001) 208 CLR 593. ↑

[165]

Relevant authorities include Tannous (1987) 10 NSWLR 303 at 307; Leff (1996) 86 A Crim R 212 at 214. ↑

[166]

Reasons of Callinan and Heydon JJ at [149]-[154]. ↑

[167]

(2002) 212 CLR 124. The Court of Appeal also applied its own decision in R v N (2003) 149 A Crim R 497, in which a new trial had been ordered. ↑

[168]

Clinton (1993) 97 Cr App R 320 at 326; Fergus (1994) 98 Cr App R 313 at 322. See also R v Thakrar [2001] EWCA Crim 1096 per Keene LJ at [34]. ↑

[169]

eg, Anderson v HM Advocate 1996 SLT 155. Other pejorative expressions are noted in TKWJ (2002) 212 CLR 124 at 134 [31] per Gaudron J, 150-151 [80]-[83] per McHugh J, referring to R v Birks (1990) 19 NSWLR 677 at 685. ↑

[170]

See, eg, Anderson v HM Advocate 1996 SLT 155 at 163-164. See also Balston v The State (Dominica) [2005] UKPC 2 at [36] per Lord Hope of Craighead. ↑

[171]

Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 222 (entered into force 3 September 1953). ↑

[172]

TKWJ (2002) 212 CLR 124 at 149 [79] per McHugh J, 157 [103] per Hayne J; Ali (2005) 79 ALJR 662 at 668 [38] per Hayne J; 214 ALR 1 at 10. ↑

[173]

Strickland v Washington 466 US 668 at 686 (1984) ("Strickland") per O'Connor J, delivering the opinion of the Court. ↑

[174]

Strickland 466 US 668 at 689 (1984) per O'Connor J, delivering the opinion of the Court. ↑

[175]

Strickland 466 US 668 at 694 (1984) per O'Connor J, delivering the opinion of the Court. ↑

[176]

Kimmelman v Morrison 477 US 365 at 382 (1986) per Brennan J, delivering the opinion of the Court. ↑

[177]

eg, Nix v Whiteside 475 US 157 (1986); Kimmelman v Morrison 477 US 365 (1986); Lockhart v Fretwall 506 US 364 (1996); Glover v United States 531 US 198 (2001); Wiggins v Smith 539 US 510 (2003); and Rompilla v Beard 355 F 3d 233 (2005). ↑

[178]

R v Joanisse (1995) 102 CCC (3d) 35 at 57 per Doherty JA; R v GDB [2000] 1 SCR 520 at 531 [25] per Major J, delivering the reasons of the Court. ↑

[179]

(1997) 32 OR (3d) 722 at 745. See also R v Wells (2001) 130 OAC 356 at [76] per McMurtry CJ. ↑

[180]

Day v The Queen [2003] EWCA Crim 1060 at [15] per Buxton LJ. ↑

[181]

[1998] 3 NZLR 392 at 394-395; cf R v Horsfall [1981] 1 NZLR 116 at 123 per Cooke J, delivering the opinion of the Court. ↑

[182]

TKWJ (2002) 212 CLR 124 at 147 [74] per McHugh J. ↑

[183]

R v Birks (1990) 19 NSWLR 677 at 684 per Gleeson CJ. See also Re Ratten [1974] VR 201 at 214; R v Miletic [1997] 1 VR 593 at 598. ↑

[184]

Strauss v Francis (1866) 1 QB 379 at 381 per Blackburn J cited in TKWJ (2002) 212 CLR 124 at 147 [74] per McHugh J. ↑

[185]

R v Birks (1990) 19 NSWLR 677 at 682-685; TKWJ (2002) 212 CLR 124 at 128 [8] per Gleeson CJ; Ali (2005) 79 ALJR 662 at 664 [7] per Gleeson CJ; 214 ALR 1 at 4. ↑

[186]

R v GDB [2000] 1 SCR 520 at 532 [27] per Major J, delivering the reasons of the Court. ↑

[187]

R v S [1998] 3 NZLR 392 at 394. See Ratten v The Queen (1974) 131 CLR 510 at 516; cf TKWJ (2002) 212 CLR 124 at 149 [78] per McHugh J. ↑

[188]

Teeluck v State of Trinidad and Tobago [2005] 1 WLR 2421 at 2433 [39] (PC). ↑

[189]

Wilde v The Queen (1988) 164 CLR 365 at 373 per Brennan, Dawson and Toohey JJ. See reasons of Gummow and Hayne JJ at [35]. ↑

[190]

Carver v Attorney-General (NSW) (1987) 29 A Crim R 24; Aboud v Attorney-General (NSW) (1987) 10 NSWLR 671 at 689; Jago v District Court (NSW) (1988) 12 NSWLR 558 at 568, 570, 578. ↑

[191]

Levinge v Director of Custodial Services (1987) 9 NSWLR 546 at 557. ↑

[192]

See, eg, (2002) 212 CLR 124 at 157 [103] per Hayne J. ↑

[193]

(2002) 212 CLR 124 at 148 [76] (emphasis added), referring to Wilde v The Queen (1988) 164 CLR 365. ↑

[194]

cf Weiss v The Queen [2005] HCA 81 at [44]-[45]. ↑

[195]

(2005) 79 ALJR 662 at 677-678 [100]; 214 ALR 1 at 22. ↑

[196]

Note the similarity between the requirement that counsel's errors be "egregious", and the older non-statutory formulations, discussed above at [65], which required counsel's errors to be "flagrant" or "radical". As explained above at [65], the problem presented by this approach is that the additional word, although designed to remove from consideration minor errors, ultimately fails to shed any additional light on the content of "incompetence". Nor does it have any textual foundation in Australian criminal appeals legislation. ↑

[197]

(2005) 79 ALJR 662 at 678 [104]; 214 ALR 1 at 23. ↑

[198]

R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256 at 259. See also Johnson v Johnson (2000) 201 CLR 488 at 502 [42]; Re Minister for Immigration, Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 14 [37]; NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 223 ALR 171. ↑

[199]

International Covenant on Civil and Political Rights ("ICCPR"), opened for signature 16 December 1966, 1980 ATS 23 (entered into force 23 March 1976). The ICCPR entered into force in respect of Australia on 13 November 1980. ↑

[200]

First Optional Protocol to the ICCPR, 1991 ATS 39 (entered into force 23 March 1976). The Protocol entered into force in respect of Australia on 25 December 1991. ↑

[201]

Mabo v Queensland [No 2] (1992) 175 CLR 1 at 42 per Brennan J. ↑

[202]

Vasilskis v Uruguay (Case 80/80); Kelly v Jamaica (Case 253/87); Campbell v Jamaica (Case 618/95) in Joseph, Schultz and Castan, The International Covenant on Civil and Political Rights, 2nd ed (2005) at 443 ("Joseph"). ↑

[203]

Campbell v Jamaica (Case 618/95); Hussain v Mauritius (Case 980/01); HC v Jamaica (Case 383/89); Taylor v Jamaica (Case 705/96) in Joseph at 443-445. ↑

[204]

NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 79 ALJR 609 at 619-620 [67]-[68]; 213 ALR 668 at 682. ↑

[205]

R v GDB [2000] 1 SCR 520 at 532 [28] per Major J, delivering the reasons of the Court. ↑

[206]

[2005] 1 WLR 2421 at 2433 [39] (PC) citing Boodram v The State [2002] 1 Cr App R 103 [39]; Balson v The State [2005] UKPC 2; cf Anderson v HM Advocate 1996 SLT 155. ↑

[207]

An analogous approach is taken by the United States Supreme Court in cases where the performance of counsel is so deficient that the appellate court concludes that the lawyer at trial did not qualify as "counsel" as envisaged by the Sixth Amendment. See Strickland 466 US 668 at 687 (1984) per O'Connor J, delivering the opinion of the Court. ↑

[208]

Reasons of Callinan and Heydon JJ at [159]-[160]. ↑

[209]

TKWJ (2002) 212 CLR 124 at 148 [76] per McHugh J. ↑

[210]

Polyukhovich v The Commonwealth (1991) 172 CLR 501 at 606-614 per Deane J, 703-706 per Gaudron J; cf at 532-535 per Mason CJ; Leeth v The Commonwealth (1992) 174 CLR 455 at 483-488 per Deane and Toohey JJ, 501 per Gaudron J; cf at 467-469 per Mason CJ, Dawson and McHugh JJ. See Parker, "Protection of Judicial Process as an Implied Constitutional Principle", (1994) 16 Adelaide Law Review 341 and note Weiss v The Queen [2005] HCA 81 at [30]. ↑

[211]

Leff (1996) 86 A Crim R 212 at 214 per Gleeson CJ. ↑

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