R v Paddon [1998] QCA 248

"That the conduct of the defence by counsel for the appellant was incompetent, with the result that the trial was rendered unfair and a miscarriage of justice occasioned."

2 The murdered man had lived in a house with the appellant and another man, John Mackenzie, for a few days prior to his death. The appellant and Mackenzie were close friends and had at an earlier time shared a homosexual relationship. The appellant was tall and heavily built. The deceased was slight.

3 On the night of 6 June 1997 the appellant had consumed substantial quantities of alcohol, smoked marijuana and injected amphetamines. After Mackenzie went to bed the appellant and the deceased began arguing over money which the appellant accused the deceased of having stolen from collection boxes he distributed to collect money for a charity.

4 The appellant was the only witness to Gardiner's death. His account of it to the investigating police officers was:

"...I done it all by myself. I killed, whatshisname...Robert because he was stealing money from the Deaf Society and I told him to give the money back but he wouldn't...and we had an argument in the room and I was drunk and stoned and I punched him a few times. He pulled a knife on me, so I pulled one on him and I ended up stabbing him. I don't know how many times I stabbed him...it started off just an argument and we were fighting...I had a knife...there was a knife in my tackle box in the room, sort of like a fishing knife, stainless steel blade with a rope handle...I didn't mean to kill him. I didn't realise I stabbed him so many times...When I put him in the car...I panicked and I pulled the blanket off the top of him and he had all these stab holes in him. I assume I done it. I must of...I just didn't stab him for something to do. I stabbed him because he was ripping off money from the Deaf Society and he would have given me a bad name as well."

5 Mackenzie was charged with being an accessory after the fact to the murder. He pleaded guilty, was sentenced, and gave evidence against the appellant. His evidence contained no reference to his having been told by the appellant that Gardiner had "pulled a knife on" the appellant. The only knife found was that used by the appellant to kill Gardiner.

6 The deceased had been stabbed repeatedly and with great force suggesting an attack of some ferocity. He had a large gaping horizontal wound about six inches in length extending from under each ear. All the major structures in the neck had been cut. The wound penetrated to the spine which had been marked by the knife blade. The injury may have been inflicted after death in an attempt to sever the head. There were four stab wounds to the arms, two of which went through the full thickness of the limb. As well there were three small incisions to the right fingers and thumb. The deceased had been stabbed nineteen times in the chest. Fourteen of these were to the back of the chest, one to the back of the neck and four to the right side of the chest. Some of the ribs had been cut and there were injuries to both lungs, the right diaphragm and the liver. The backs of both knees had been slashed. The cut to the right knee penetrated to the bone. These two injuries were inflicted after death and were to make the body easier to transport to the site where it was concealed.

7 After he had killed Gardiner the appellant pressed Mackenzie to aid him in removing the body from the house, attempting to remove evidence of the killing and to dispose of the body.

8 Mackenzie accompanied the appellant to the room where Gardiner had died. He saw that the mattress on which Gardiner slept had been used as a shroud. Mackenzie and the appellant carried the mattress and the deceased's body to Mackenzie's car the boot of which was lined with plastic sheeting before the mattress was put in. Mackenzie drove to bushland at Deagon where the appellant took the body from the car and buried it in a shallow grave.

9 They returned to the house where Mackenzie cleaned up and removed blood stains and put the deceased's possessions, and the murder weapon, into his car.

10 The body was found within a few hours. Personal papers buried with the body identified Gardiner. Police quickly discovered his address where they spoke to Mackenzie. He confessed his involvement and told the police where the appellant could be located. The appellant was arrested and charged with murder in the early hours of 7 June, 1997.

11 The incompetence of defence counsel which it is submitted deprived the appellant of a fair trial was said to be twofold:

(a) eliciting evidence of the appellant's bad character and previous criminal history from the appellant himself, Dr Grant and Detective Parsons; and

12 As to the first point it is submitted that the appellant's previous criminal history and his bad character were irrelevant to any of the contentious issues in the trial. These were identified as:

(i) whether the appellant acted in self-defence when he killed Gardiner; and

(ii) whether, when he stabbed Gardiner, he intended to kill him or to cause him grievous bodily harm.

The appellant submits that evidence of his criminal past could not assist him on any of these issues and was calculated to prejudice his case before the jury.

13 The evidence adduced was short. The appellant's evidence in chief on the topic appears at R171.1-.32:

How do you feel about it now? - I feel sorry that it has happened. I wish it never did happen.

How did you feel about it at the time, are you able to remember? - Well, once I woke up and realised what I've done, I knew for sure that they would be locking me away so I panicked and tried to get rid of the body as quick as I could.

What did you mean you knew for sure they are going to lock you away? - Well, I have dealt with police all my life. I have been locked up all my life.

And just generally when was the first time you were locked up? - When I was 8 and I got out when I was nineteen or twenty, I think.

Who were you living with at the time? .. When I was 8 I was living with me mum but then I got taken off my family and put into Wilson Boys' Home.

Where were you when you were sort of eighteen or something, you just said then? - They transferred me from Wilson Boys' Home to Westbrook Boys' Home and from there to jail.

So when you said you knew they were going to lock you up, what did you mean? Are you able to explain that? - No, not really. You do something wrong like this they just grab you and lock you up."

14 The cross-examination of detective Parsons on this point was quite brief. He was asked (R59.38-.48):

"Now, you subsequently learned, did you not, a bit about Darren through investigations? - Yes, I have.

You are aware he was institutionalised at an early age? - Yes, I am.

And he has somewhat - has had run-ins not in major charges, but run-ins with the police and law pretty well right through his life, would you agree? - Yes, his history would indicate that."

15 Dr Grant, a psychiatrist, who was called to give evidence on behalf of the appellant said in chief (R220.20-.30):

"Are you able to conclude anything from those reports? - Well, those reports indicate that Mr Paddon has had severe behavioural disturbances beginning at a very young age and, in fact, has been in institutions for most of his life from the age of about 6, I believe, beginning with the Sir Lesley Wilson Youth Detention Centre and then progressing to Westbrook and then to a variety of adult prisons. So from that very early age he was showing severe problems with behaviour, particularly aggressive behaviour, and fire setting or arson. He was repeatedly setting fires, escaping from the Sir Lesley Wilson Centre, and setting more fires."

16 As to the second point, calling Dr Grant, the appellant submitted that the evidence was almost entirely irrelevant and unhelpful to the defence on the point it was meant to establish, viz, that the appellant's capacity to form a relevant intent was impaired by the consumption of alcohol and other drugs. Furthermore, it was submitted that Dr Grant's evidence damaged the appellant by portraying him as dangerous and anti-social, with a predisposition to violence that could be aggravated by consuming alcohol and/or amphetamines. The appellant's submission is that Dr Grant's evidence showed the appellant to be "just the sort of person who could murder a man in circumstances such as those in the present case". Defence counsel knew that this would be Dr Grant's evidence because he had said in a report supplied before he was called to give evidence, and before the jury was told he would be a witness:

"The chief factors involved in the offence were rage and disinhibition by the influence of drugs and alcohol and the background of a very long standing anti-social personality disorder with difficulty with impulse control."

17 Dr Grant's evidence did the defence another disservice. His report contained an account of what the appellant had told him which differed in several respects from the version of events sworn to by the appellant in his evidence at the trial. Significantly he told Dr Grant that he fetched the knife with which he killed Gardiner from the kitchen or lounge room, leaving the bedroom in which he had been arguing with Gardiner for that purpose. He returned with the knife to the bedroom where he then stabbed the deceased.

18 The appellant told the jury that after the deceased threatened him with a knife he took a fishing knife from his tackle box which was in the bedroom.

19 The inconsistencies were likely to have severely damaged the appellant's credibility. The account given to Dr Grant of the location of the knife effectively destroyed his chance of acquittal on the ground of self-defence.

20 The appellant argued that there was no basis on which it might have been thought by competent defence counsel that either category of evidence should have been elicited. No legitimate forensic advantage could be hoped for by leading it so that the decision to adduce the evidence must have been the result of ineptitude of a high order. The admission of the evidence was to prejudice the appellant's cause and to deprive him of a fair trial. Dr Grant's report which had been given to the prosecutor revealed the appellant's inconsistent account of where he obtained the knife. It should have been obvious to defence counsel that Dr Grant would be cross-examined to highlight every inconsistency. The submission concludes that to call Dr Grant was to do irreparable damage to the appellant's chances of an acquittal with no counter-balancing advantage which could be hoped for from calling him. Therefore, it is said, the decision to call Dr Grant can only have been the result of incompetence.

21 The relevant legal principles are well established though not always easy to apply. In R v. Green [1997] 1 Qd R 584 at 586, Fitzgerald P and Thomas J said:

"The mere fact that valid criticisms can be made of counsel's conduct of the trial does not mean that there has been a miscarriage of justice or that an appeal against conviction should be allowed. In Zullo, Pincus JA said "that there is a strong disinclination to allow an appeal on the ground that a decision taken by the appellant's counsel as to the mode of conduct of trial was mistaken" and, in Clinton, the English Court of Appeal said ... that the circumstances must be "wholly exceptional" and that a conviction should be set aside on this basis only if it is, in all the circumstances, unsafe or unsatisfactory."

"... whether or not a new trial should be ordered will depend on the circumstances of each case; a new trial will generally not be appropriate unless incompetent or improper conduct by counsel deprived the person convicted of a significant possibility of acquittal ... This test will not be satisfied, other than in "wholly exceptional circumstances", by reference to decisions made in the conduct of the trial which might have involved both advantages and disadvantage for an accused person ... However, the possibility of an unfair trial is not demonstrated by a guilty verdict or other subsequent event which suggests that the impugned decision or advice by counsel did not produce the hoped-for result; that does not even establish that the decision was erroneous, and even decisions revealed by hindsight to be wrong do not necessarily indicate that the trial miscarried."

22 In R v. Birks (1990) 19 NSWLR 677 at 683, 684 and 685, Gleeson CJ said:

"As a general rule, a party is bound by the conduct of his ... counsel, and counsel have a wide discretion as to the manner in which proceedings are conducted. Decisions as to what witnesses to call, what questions to ask or not to ask, what lines of argument to pursue and what points to abandon, are all matters within the discretion of counsel and frequently involve difficult problems of judgment, including judgment as to tactics. The authorities concerning the rights and duties of counsel are replete with emphatic statements which stress both the independent role of the barrister and the binding consequences for the client of decisions taken by a barrister in the course of running a case ...

It sometimes happens that a person who has been convicted of a crime seeks to have the conviction set aside on the ground that counsel at the trial has acted incompetently, or contrary to instructions. It is well settled that neither of the circumstances will, of itself, attract appellate intervention. At the same time the courts acknowledge the existence of a power and duty to quash a conviction in some cases. The difficulty is to find, in the authorities, a formula which adequately and accurately defines the class of case in which a Court of Criminal Appeal will intervene. A common theme running through the cases, however, is that such intervention is a matter about which the courts are extremely cautious ...

The Lord Chief Justice (in R v. Ensor [1989] 1 WLR 497) expressed the view that if defending counsel in the course of the conduct of the case makes a decision, or takes a course, which later appears to have been mistaken or unwise, that, generally speaking, is not a proper ground for an appeal. To that, however, his Lordship added the rider that `if the court had any lurking doubt that the appellant might have suffered some injustice as a result of flagrantly incompetent advocacy by his advocate, then it would quash the convictions.' ".

23 In R v. Miletic [1997] 1 VR 582 the Court of Appeal (Winneke P, Charles and Callaway JJA) said at 598:

"... a criminal trial is adversarial in its nature and counsel is entitled, on behalf of the accused, to contest such issues as he believes ought to be contested and to do so in such manner as he believes the circumstances warrant. No doubt there will be many decisions made by counsel which, in retrospect, might appear to have been ill advised. However the mere fact that such decisions have been made and appear in retrospect to have been unwise would not, of itself, lead a court of criminal appeal to quash a conviction, for the simple reason that the making of those decisions is part and parcel of the process of a fair trial.

An appellate court will nevertheless intervene if it is satisfied that something occurred at the trial which has led to a miscarriage of justice. It may be that the material before the court will demonstrate that there has been such defect of judgment or neglect of duty on the part of trial counsel that the court, on appeal, is left with the view that justice has miscarried. ... there may be circumstances which make it appropriate for the court to "interfere to protect an accused man from his own counsel". Each case must, of course, depend upon its own facts and it is not possible to lay down, in advance, any precise formula which will provide the answer in any given case as to what conduct by counsel will have caused a trial to miscarry. ... A court of criminal appeal is poorly equipped to review decisions made by counsel during the course of a criminal trial, many of which have to be made on the spur of the moment or in circumstances with which an appellate court cannot hope to be familiar. Usually there must be something akin to flagrant incompetence of counsel before it will be moved to intervene...".

24 The judgment in R v. Birks appears to have been the most influential. It is to the reasons for judgment in that case that subsequent decisions have turned for assistance. What emerges from the authorities is that before a Court of Criminal Appeal will set aside a conviction on the ground that the conduct of the defence occasioned a miscarriage of justice it must fit the description of "flagrantly incompetent".

25 How does the evidence, appearing in this appeal, stand when tested against this principle?

26 The court is asked to infer that the impugned evidence was led as a consequence of incompetence from the circumstances of the trial as they emerge in the printed record, supplemented by an affidavit I will mention later. An appellant who argues from such a basis faces a difficult task. The court will not lightly infer that counsel's conduct of a trial, which has turned out badly for an accused, was incompetent.

27 Unless the inference is the only one available and is compelled by the circumstances, it should not be drawn.

28 Adducing evidence of the appellant's antecedents does not seem to me to demonstrate such a defect of judgment or neglect of duty that a miscarriage of justice is made out. Nor does it seem to me that the admission of that evidence must necessarily have been a consequence of flagrant incompetence. On the contrary there appears to be at least one rational explanation for the evidence.

29 The defence was confronted with cogent evidence that the appellant had acted with a consciousness of guilt. He removed Gardiner's corpse from the scene of the crime and buried it in bushland in what can only have been an attempt to conceal the crime and his involvement in it. He grossly mutilated the body to facilitate its removal. He attempted to obliterate the evidence that Gardiner had died violently in his house. The account which the appellant put before the jury was of a killing in self-defence, alternatively, a killing in a blind rage without the intention of killing or causing grievous bodily harm. On one view he would have been acquitted: on the other he would have been convicted of manslaughter only. The length to which the appellant went to hide the evidence of his involvement in Gardiner's death was likely to make acceptance of his preferred account difficult. A man who had killed in self-defence, and even one who had killed unintentionally, though unlawfully, would not so desperately have tried to disassociate himself from the event.

30 The appellant's personal history of confinement in institutions or prisons and the resulting mutual suspicion with which he and the law had come to regard each other might well have been thought to provide an explanation for the appellant's conduct other than a consciousness of guilt of Gardiner's murder. That that seems to be so appears from the appellant's evidence in the passage already quoted. The appellant "tried to get rid of the body as quick as (he) could" because of panic occasioned by his extensive prior dealings with the police which led him to think he would be blamed for Gardiner's death regardless of the real circumstances.

31 As long as the decision to adduce the evidence can be seen to be capable of providing some forensic advantage to the appellant it cannot form the basis for intervention by this court because it will not be possible to draw the inference for which the appellant contends. The decision to lead the evidence will be, at most, one "which, in retrospect might appear to have been ill advised" or one which "involved both advantages and disadvantages ... which did not produce the hoped-for result."

32 The appellant pressed more strongly the calling of Dr Grant as proof of unjustifiable conduct by counsel resulting in a miscarriage of justice.

33 In support of the argument an affidavit of the appellant sworn 29 June, 1998 was relied upon. In it the appellant said:

2. I was convicted of murder on 24 March, 1998 after a trial.

3. Mr Rod Clifford of counsel and Mr Duncan Newnham of Hoolihans Lawyers represented me.

4. A psychiatric report was commissioned from Dr Donald Grant by my solicitor.

5. The decision to call Dr Grant as a witness in my trial was made by my legal representatives. I left this decision to my representatives.

6. I gave evidence on the advice of my legal representatives."

34 The submission is that the harm that was occasioned to the appellant's case by Dr Grant's evidence was obvious and foreseeable and wholly disproportionate to any advantage the doctor's testimony might be thought to give the appellant.

35 The appellant criticises the decision because, unless flagrantly incompetent, defence counsel would have established, prior to calling Dr Grant, that if asked he would say that the appellant did have the capacity to form the requisite intent. There could thus be no advantage in calling Dr Grant to say that the appellant's capacity to form an intention to kill or cause grievous bodily harm was diminished. There would be a disadvantage in that his evidence would establish that by reason of his personality disorder the appellant had a propensity to violence. As well the inconsistencies, especially about obtaining the knife, would come to light. The appellant thus submits that so little could be gained from Dr Grant's evidence and so much could obviously be lost the decision to call him was of the type which justifies this court's intervention.

36 It may be convenient to deal first with the point of the inconsistency. It very substantially reduced the possibility that the jury would find self-defence. If it were accepted that the appellant went from the room where he claimed he was threatened by Gardiner wielding a knife, obtained another knife and returned to the room where he stabbed Gardiner in the neck (which is where in evidence he said he struck the first blow) the defence would be precluded. But the prospect of an acquittal on the ground of self-defence was so unlikely that it might be thought by competent counsel that to lose that chance by calling Dr Grant was to lose nothing of value. If Dr Grant could assist in obtaining a verdict of manslaughter when there was no realistic prospect of an acquittal the decision to call Dr Grant cannot fairly be criticised.

37 It seems to be me there was, quite apart from Dr Grant's evidence, no realistic prospect that the jury would find that the appellant acted in self-defence. The knife which the appellant claimed Gardiner "pulled" was never produced. Mackenzie removed the incriminating evidence, including the murder weapon and bloodstained clothing, from the house. The other knife was not among those effects. More significantly the appellant never told Mackenzie that he had acted in self-defence or that Gardiner had produced a knife. The appellant admitted in cross-examination that he had not told Mackenzie that Gardiner had threatened him with a knife.

38 The third point is the savagery of the attack. The deceased was stabbed in and about the chest nineteen times with deep, penetrating forceful blows.

39 The jury would have been perverse to find self-defence.

40 If there was some benefit in the evidence the question of whether to call Dr Grant must be seen as a tactical one which had to be made by the appellant and his counsel who had to weigh up the advantage they hoped to obtain from the evidence against the damage it might do to the chances of an acquittal or a conviction for manslaughter. It is not to the point that the decision turned out to be wrong; nor does it matter that the decision should have appeared at the time to have been wrong. Unless the decision is in that "wholly exceptional" category of case in which "flagrant incompetence" or something like it has caused a miscarriage of justice this court cannot, on the authorities, set aside the conviction.

41 The advantages which the defence hoped to obtain from Dr Grant's evidence may be gathered from the trial judge's summing up. His Honour said:

"The defence case was that the evidence shows that the accused was very, very drunk such that he was unable to form any intention at all ... (defence counsel) said there was plenty of evidence of drinking of beer and wine and also drug taking. He submitted that the blackout which the accused claimed to have was perfectly credible and explicable by reference to the amount of alcohol and drugs consumed.

He referred you to evidence of Dr Grant in that regard and you might recall, perhaps not surprisingly, Dr Grant saying that one can have blackouts or memory lapses as a result of taking extreme quantities of alcohol either at one time or over a period. He referred you also to evidence of Dr Grant about the rage episode and possible suppression of memory arising out of an unpleasant experience. He referred to evidence of Dr Grant to the effect that the number of wounds might indicate a killing in great anger or frenzy. It was contended that the evidence showed that the accused had lost control and by inference you should find that there was no intention to kill."

"In relation to the evidence of the accused and the conflict in the accused's testimony, you were invited to bear in mind the accused's limited intellectual capacity, the difficulties he had in providing appropriate responses in complex situations, and you were referred to evidence of Dr Grant in that regard. It was said that inconsistencies in the accused's evidence could be explained in that way...".

42 The decision to call Dr Grant was made after the accused had given evidence. He had not performed well. His testimony was, in essence, that while he was arguing with the deceased the latter produced a knife, though it was not made entirely clear from where, and threatened the appellant with it. The appellant armed himself with a fishing knife which was conveniently in a tackle box in the room in which the deceased slept and in which they were arguing. The appellant struck the deceased once with the knife inflicting a large wound on his neck. His next recollection was of lying on the floor in the bedroom saturated with the deceased's blood. He said he had lost consciousness and had no memory of stabbing the deceased, apart from the blow I have mentioned. He was pressed in cross-examination about this memory loss and did not fare well. The number and severity of wounds inflicted on Gardiner provided cogent evidence of an intention to kill or to cause grievous bodily harm and precluded self-defence. The appellant's inability to recall the infliction of any of those wounds was, to a cynical mind, convenient and therefore to be rejected. One can therefore understand why the defence would wish to obtain medical evidence to support the appellant's claim of loss of memory.

43 It appears from the summing up that defence counsel sought to utilise the evidence of a personality disorder in order to argue that the appellant had fallen into a disinhibited rage and killed without intending that consequence, or even intending to harm. This makes the decision to adduce the evidence the product of something other than "flagrant incompetence".

44 Dr Grant's evidence was also directed to the appellant's capacity to form an intention to kill or to cause grievous bodily harm. He claimed to have been intoxicated and to have ingested drugs. Dr Grant said in chief that the consumption of the combination of drugs taken by the appellant would reduce his ability to act deliberately.

45 The effect of this evidence was entirely lost in cross-examination in which Dr Grant expressed his opinion that the appellant was capable of forming the relevant intention. The appellant submits that defence counsel should have been aware of his opinion. He was incompetent, it is said, if he:

(a) asked Dr Grant in conference and therefore knew what his opinion was but nevertheless called Dr Grant;

(b) did not ask Dr Grant in conference for his opinion.

It should have been apparent that there could be no advantage in Dr Grant's evidence for the appellant on the point of his capacity to form an intention. His evidence damaged the appellant in the respects already mentioned.

46 There is no doubt that Dr Grant's evidence hurt the appellant. In hindsight it would have been better for the appellant had Dr Grant not been called. But it is only if there were no basis for believing that Dr Grant might assist the appellant's chances of an acquittal that the decision to call him may be categorised as "flagrantly incompetent".

47 It is possible that counsel had conferred with Dr Grant and knew what his opinion was on the question of the appellant's capacity to form an intention to kill, but nevertheless thought the psychiatric evidence on other points made calling him worthwhile. This is, of course, conjectural, but unless the appellant can exclude it as a possibility the inference, on which depends success on the appeal, cannot be drawn.

48 As well as Dr Grant's evidence about possible reasons for a loss of memory, his opinion of the appellant's personality disorder was advanced to support a finding that the killing was the product of a blind rage, and not of an intention to kill or harm. This seems to me to answer the submission that to lead evidence of his personality disorder prejudiced his case and was incapable of assisting it. This submission was the crux of the appellant's argument. It was said that Dr Grant's evidence could not assist the appellant because in his particular case the doctor's opinion was that he had the capacity to form the requisite intention. His evidence that, in general, the ingestion of drugs diminishes that capacity, was irrelevant. This should have been known to defence counsel before Dr Grant was called. The downside, which was known to counsel because it appeared in the report, was Dr Grant's description of the appellant as violent and anti-social.

49 But it is apparent that this evidence was led to negative intent by showing a personality susceptible to loss of self-control. It was, apparently, meant to provide an explanation, other than an intention to kill, for the sustained violence of the attack. The evidence was clearly a two-edged sword which might cut the defence and not the prosecution. To lead it was to take a risk but one which, I think, may fairly be described as calculated.

50 The weighing of the benefit against the possible detriment was a matter for the professional judgment of defence counsel. The fact that the judgment may be fairly, even trenchantly criticised is irrelevant. It does not matter that many, or even most, experienced and able counsel would not have made the decision to call Dr Grant.

51 The decision to lead the evidence is thus to be seen to be in that category referred to in the passage from R v. Green at 587 set out earlier in these reasons. It does not fit in that other category which alone would provide a basis for the court to set aside a conviction.

52 The authorities do not provide any precise verbal formula by which one may describe the conduct of a criminal defence which would give rise to the apprehension that an accused was not tried fairly. The authorities do, however, suggest a two-fold test. There must be (1) something in the nature of "flagrant incompetence" which (2) deprived the accused of a significant possibility of acquittal. The phrase "flagrant incompetence" is itself imprecise. "Flagrant" has, as well as the connotation blatant, or glaring, the further meaning of shocking or scandalous. A synonym suggested by the Oxford Thesaurus is "out-and-out". "Incompetence" goes beyond carelessness. The word suggests ineptitude or uselessness.

53 Flagrant incompetence, in the sense of obvious, shocking ineptitude, will not be demonstrated by an error of judgment in the conduct of a criminal defence. There must, at the least, be something in the conduct of the defence which could never be thought by competent counsel in the circumstances of the trial to be of any possible advantage to the accused.

54 It is to be noted that this is not a case in which defence counsel allowed prejudicial and inadmissible evidence to be given against an accused, nor is it a case in which a point which might have been of advantage to on accused was not taken. It is, on the contrary, a case in which the defence led evidence intended to advance its cause but which instead strengthened the Crown case. It is harder in such a case to make out the second aspect of the test, that there has been a miscarriage of justice in that the accused was denied a fair trial. This is especially so when the Crown case is, apart from the effect of the alleged incompetence, very strong.

55 The Crown case was overwhelming. The defence had nothing from which to fashion an argument. It was obliged to make bricks without straw. That difficult task was not accomplished but in the attempt the Crown case was strengthened. It is not entirely fair to criticise counsel for attempting to obtain the straw from which he might make bricks. The evidence which was led and is the subject of the appellant's complaints might have turned out to the appellant's advantage. Leading the evidence does not, it seems to me, establish out-and-out ineptitude.

56 The manner in which the appeal was conducted was to my mind unsatisfactory. The court was invited to infer what could have been the subject of direct evidence.

57 The appellant here seeks to dissociate himself from the decision to call Dr Grant. The affidavit used here is quite deficient. The appellant must have known that his legal representatives contemplated calling Dr Grant. He was interviewed by the doctor on 6 October 1997, apparently during his committal, for the purposes of the report. The possibility that Dr Grant would be called was discussed in court during the trial. The prosecutor raised a doubt about the admissibility of the evidence. Later that day, after the appellant had given evidence, Dr Grant's evidence was further opened to the prosecutor who withdrew his objection to it.

58 The affidavit should have addressed, in some detail, what the appellant knew of the circumstances in which Dr Grant was called and, indeed, the purpose for which his report was commissioned. It should have dealt explicitly with any conversations to which the appellant was a party concerning Dr Grant's evidence and whether he should be called.

59 The appellant's affidavit begs these questions. Its terms are equally consistent with the appellant:-

(a) discussing in detail with his lawyers the pros and cons of calling Dr Grant, including all the matters referred to in these reasons, and saying "I will let you decide what is the best course";

(b) knowing nothing of the decision to call Dr Grant until, to his surprise he heard him called to the witness box, and to his dismay, heard the evidence.

The court should not be asked to infer that possibility (b) is correct when the appellant could have said so, but did not. If possibility (a) is correct then clearly no basis for ordering a retrial is made out.

60 An appellant in a case such as this ought to approach the solicitors and/or counsel who appeared at the trial and request their support for the appeal by providing an affidavit concerning the matter which is said to constitute flagrant incompetence. It is not to be supposed that members of the profession whose conduct might have led to a miscarriage of justice will invariably refuse their assistance to rectify the injustice. If they do the appellant should depose to the fact that his request for assistance was rebuffed.

61 In cases where a retrial is sought on the ground raised here there is waiver of legal professional privilege attaching to the communications between an appellant and his trial representatives: Thomason v. Municipality of Campbelltown [1939] NSWStRp 10; (1939) 39 SR (NSW) 347 at 358; A-G v. Maurice [1986] HCA 80; (1986) 161 CLR 475 at 481, 487-8, 492-3; Standard Chartered Bank of Australia Ltd v. Antico (1995) 36 NSWLR 87 at 94-95. The waiver does not operate with respect to all communications. It is limited to communications which concern those aspects of the conduct of the trial which are said to be indicative of, or the product of, incompetence: Goldberg v. Ng [1995] HCA 39; (1995) 185 CLR 83 at 96. These aspects will be sufficiently identified in the notice of appeal and/or the appellant's written outline of submissions. The Crown is free to interview the legal representatives about those communications and put before the Court of Appeal anything of relevance concerning the impugned conduct. It is a matter for the Crown whether or not it approaches the appellant's former legal representatives. If an approach is made caution must be exercised not to enquire into matters in respect of which legal professional privilege has not been waived so as not to elicit information which might make it difficult to ensure that the retrial is fair. Notwithstanding these monitions there will be occasions when it is appropriate for the Crown to take a statement from the former legal representatives. Which cases call for such a cause cannot be determined in advance.

62 As a general rule it is unsatisfactory that arguments should be addressed that there must have been "flagrant incompetence" when there may be a satisfactory explanation for what is complained of but no approach is made to those who can provide the explanation.

63 In my view the appellant has not made out that he was deprived of a fair trial or that he lost a significant possibility of acquittal. Nor am I persuaded that leading evidence about the appellant's antecedents, and calling Dr Grant, demonstrates flagrant incompetence.