Incompetence of Counsel as a Ground of Appeal to the CCA

, Incompetence of Counsel as a Ground of Appeal to the CCA

Incompetence of Counsel as a Ground of Appeal to the CCA

Incompetence of Counsel as a Ground of Appeal to the CCA

By National Criminal Lawyers


National Criminal Lawyers(NCL),  often gets asked by their clients “what if I lost my case because my lawyers were bad in Court”?.
This article discusses the right of appeal from the District court or Supreme Courts to the NSW Court of Criminal Appeal (CCA) by raising “incompetence of counsel” as a ground of appeal.



An appellant who appeals against his or her conviction on the basis of an allegation that defence counsel was incompetent must demonstrate that counsel’s conduct caused a miscarriage of justice. It is the miscarriage of justice that is the basis of intervention by the CCA. That is because the Court only has jurisdiction conferred by statute, namely, section 6(1) Criminal Appeal Act 1912, which provides:

The court on any appeal under section 5(1) 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 other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favor of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.

Thus the only way in which complaints that form the substance of these appeals can find a footing in section 6(1) is if the court is satisfied that “… on any other ground whatsoever there was a miscarriage of justice.”

The Early Case Law – “Flagrant Incompetence”


The early case law in this area was plagued by references to the need to prove “flagrant incompetence” as a prerequisite to a successful appeal. “Flagrant incompetence” is sometimes used to describe the extent of the departure from the standard expected by counsel. The High Court, however, has since made it abundantly clear that the relevant question is whether the act or omission by counsel has resulted in a miscarriage of justice – not whether counsel was “flagrantly incompetent”. As explained by McHugh J in TKWJ v The Queen [2002] HCA 46 at [97]:

“A test such as “flagrant incompetence”, while a convenient label that may show that a miscarriage of justice has occurred in a particular case, is unhelpful generally in determining whether there has been a miscarriage of justice within the terms of s 6(1) of the Criminal Appeal Act. Whether there has been a miscarriage of justice is the ultimate issue that the court must decide.”

The phrase “flagrant incompetence” gained traction in the well-known decision of R v Birks (1990) 19 NSWLR 677, the seminal decision on the subject of incompetence of counsel generally. The accused was charged with a range of sexual assault offences (18 counts in total) and malicious wounding. At the time of these events, the complainant was living in an isolated rural property with her two young children. The accused, a complete stranger, claimed his car failed mechanically and approached the complainant’s house to seek assistance. It was alleged that he entered by the rear door, punched and threatened the complainant, and then proceeded to engage in oral, vaginal and anal intercourse with her without consent. The – 2 – complainant suffered extensive lacerations and bruising to her face. The accused admitted having sexual intercourse with the complainant but said that she had consented.

The question as to how she came to suffer the injuries to her face was not only critical to the charge of malicious wounding, but it was of substantial practical importance in relation to the sexual assault charges. If the jury concluded that the accused physically assaulted the complainant, one might think, they might have had real difficulty in accepting that the sexual intercourse which followed was consensual.

The accused instructed his counsel that the injuries to the complainant’s face were caused when the accused warded off blows from a torch which the complainant used to strike him. He said that he threw up his arms to ward off the blow and, in doing so, knocked the torch out of her hand which flew up into the air and hit the complainant in the face. He also instructed his counsel that no anal intercourse occurred. His counsel, however, failed to cross-examine at all about her account of how she came to sustain the facial injuries (which she undoubtedly suffered) and he did not put to her that no anal intercourse occurred.

In the course of his evidence, the accused explained the facial injuries by reference to the mishap with the torch and said that no anal intercourse occurred. The prosecutor attacked his credibility on the basis that, since his counsel had not put this version of events to the complainant, it must have been something the accused invented on the spot. Despite the clear instructions received before the trial, counsel had simply forgotten to cross-examine on these matters and thereafter took no steps to correct the error.

Counsel’s conduct was characterized as “flagrant incompetence” and was held to have caused a miscarriage of justice. Gleeson CJ, (with the agreement of McInerney J, Lusher AJ dissenting) quashed the conviction and made the following often cited statement of guiding principle.

  1. “ A Court of Criminal Appeal has a power and a duty to intervene in the case of a miscarriage of justice, but what amounts to a miscarriage of justice is something that has to be considered in the light of the way in which the system of criminal justice operates.
  2. As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to instructions, or involve errors of judgment or even negligence.
  3. However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of ‘flagrant incompetence’ of counsel, or perhaps from some other cause, which will be recognized as involving or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention.”

These principles were expanded in TKWJ v The Queen [2002] HCA 46. It was alleged that the accused had committed sexual offences against the young son and daughter of a woman with whom he was in a relationship with at the time of the offences. The accused was convicted of two counts of aggravated indecent assault and one count of aggravated indecency following a trial in the District Court. The initial indictment which alleged offences against both complainants was severed to enable separate trials to be held. In the course of the trial relating to the offending against the son, counsel for the accused informed the prosecutor that he intended to adduce evidence of the accused’s good character. The prosecutor replied that, in that event, he would seek to call the daughter to give evidence about the allegations relating to her to rebut the evidence of good character. As a result, counsel did not call evidence of good character.

The High Court held that the course taken at trial reflected a forensic choice which was reasonably open to counsel. Gleeson CJ observed at [8],[16]

“8. On the face of it, that was an understandable decision. It was certainly not self evidently unreasonable, or inexplicable. It was the kind of tactical decision routinely made by trial counsel, by which their clients are bound. And it was the kind of decision that a Court of Criminal Appeal would ordinarily have neither the duty nor the capacity to go behind. Decisions by trial counsel as to what evidence to call, or not to call, might later be regretted, but the wisdom of such decisions can rarely be the proper concern of appeal courts.”

“16. It is undesirable to attempt to be categorical about what might make unfair an otherwise regularly conducted trial. But, in the context of the adversarial system of justice, unfairness does not exist simply because an apparently rational decision by trial counsel, as to what evidence to call or not to call, is regarded by an appellate court as having worked to the possible, or even probable, disadvantage of the accused. For a trial to be fair, it is not necessary that every tactical decision of counsel be carefully considered, or wise. And it is not the role of a Court of Criminal Appeal to investigate such decisions in order to decide whether they were made after the fullest possible examination of all material considerations. Many decisions as to the conduct of a trial are made almost instinctively, and on the basis of experience and impression rather than analysis of every possible alternative. That does not make them wrong or imprudent, or expose them to judicial scrutiny. Even if they are later regretted, that does not make the client a victim of unfairness. It is the responsibility of counsel to make tactical decisions, and assess risks. In the present case, the decision not to adduce character evidence was made for  an obvious reason: to avoid the risk that the prosecution might lead evidence from K.”



Although an appellant must identify with particularity that which has generated the alleged miscarriage of justice, the appeal is better positioned to succeed where:

  1. The court is satisfied that counsel conducted the trial with flagrant incompetence “it is likely that the appellant will have established a material irregularity in the conduct of the trial that will provide the stepping stone to a finding of a miscarriage of justice”: TKWJ at [80].
  2. The alleged error concerns an obvious mistake as opposed to a deliberate forensic choice: TKWJ [at 81]. While the court will usually reject an argument alleging incompetence of counsel if the conduct may have served a legitimate forensic purpose, the court may be more willing to intervene if the forensic risks of the conduct clearly outweigh any possible advantages: TKWJ at [33].
  3. The failures of counsel produced a trial that did not meet the minimum standards of fairness required of a trial. It is not necessary in these cases to demonstrate that the incompetence of counsel affected the outcome of the trial. This point was made clear by McHugh J in TKWJ at [76]:



  • The alleged failure of trial counsel to adduce character evidence is perhaps the most common situation in which an incompetence ground arises.
  • Defence counsel erroneously adducing the criminal history of the accused
  • Defence counsel failing to articulate the basis upon which to cross-examine the complainant in a sexual assault case pursuant to s 293 of the Criminal Procedure Act 1986: Taylor v R [2009] NSWCCA 180.
  • Defence counsel’s failure to apply for separate trials: R v TJF [2001] NSWCCA 127; R v Hunter and Sara [1999] NSWCCA 5.


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