R v Hughes - [2007] SASC 318

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HUGHES
[2007] SASC 318
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Gray and The Honourable Justice Vanstone)
29 August 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - CONDUCT OF LEGAL PRACTITIONERS
Appellant convicted by jury of wounding with intent to cause grievous bodily harm - defence of mental incompetence raised at trial –– evidence given that appellant was intoxicated and suffered blow to the head – jury found defence of incompetence not proved – whether raising of issue of mental incompetence and alleged failure of defence counsel at trial to deal adequately with issues of automatism and specific intent amounted to professional incompetence giving rise to material risk of miscarriage of justice – the conduct of the trial was not productive of miscarriage of justice – appeal against conviction dismissed.
Criminal Law Consolidation Act 1935 s 269A(1), s 269C, s 269D, s 269G, s 269GB(3), s 353(1); Criminal Code (WA) s 27; Evidence Act 1929 s 34, referred to.
The Queen v Falconer (1990) 171 CLR 30; Nudd v The Queen (2006) 225 ALR 161; (2006) 162 A Crim R 301; Teeluck v State of Trinidad and Tobago [2005] 1 WLR 2421; TKWJ v The Queen (2002) 212 CLR 124; Anderson v H.M. Advocate [1996] SLT 155; Ali v The Queen [2005] HCA 8; R v Birks (1990) 19 NSWLR 677; Wilde v The Queen (1988) 164 CLR 365; Ratten v The Queen (1974) 131 CLR 510, applied.

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN REFUSED - GENERALLY
Appellant sentenced to imprisonment for five years with non-parole period of two years and six months - two previous appearances before court on charges of common assault - offence resulted in serious injury to the victim - appeal against sentence dismissed.

R v HUGHES
[2007] SASC 318
Court of Criminal Appeal: Duggan, Gray and Vanstone JJ

DUGGAN J. The appellant was found guilty by verdict of a jury of wounding with intent to cause grievous bodily harm. He has appealed against conviction and sentence. The grounds of appeal against conviction assert that the conduct of counsel who represented the appellant at the trial was so incompetent that it resulted in a miscarriage of justice.
Factual background
The charge against the appellant arose out of an incident which occurred on 26 September 2002 at Salisbury Downs. It is common ground that the appellant, the appellant’s father and the victim, Mr Prime, took part in a drinking session at the Salisbury Hotel throughout the afternoon on the day of the incident. Each smoked marijuana while at the hotel. They drank for about four hours and left the hotel at approximately 4.30 pm.
The appellant was living with his father at the time and, when they left the hotel, Mr Prime drove them to their house and went inside to continue drinking. The appellant had purchased a carton of beer at the hotel and this was taken into the house when they arrived.
According to Mr Prime’s evidence the appellant became angry while they were at the house. At one stage, the appellant came into the kitchen swinging an iron bar similar to a trolley jack handle. Mr Prime remarked to the appellant’s father that the appellant was “a bit of an idiot” and the appellant became aggressive towards Mr Prime. Mr Prime said that the appellant’s father then took the bar from the appellant who punched a wall in anger. The appellant’s father subsequently hit his son in the vicinity of the left eye with the bar.
Mr Prime said the appellant then walked outside towards Mr Prime’s car. Mr Prime followed and noticed marks which appeared to be kick marks on the door of his car. He said the appellant started throwing beer cans at the windscreen of the car.
A little later while he was standing by his car, Mr Prime said he felt a blow from behind. He turned and saw that it was the appellant. Mr Prime said he held the appellant in a bear hug, but he felt a stinging pain in his back and let the appellant go. The appellant slashed at him striking him in the face and throat. An ambulance was called and Mr Prime was taken to the Royal Adelaide Hospital where it was determined that he had been stabbed in the upper back. There was also a laceration to his neck.
The appellant’s father gave evidence for the defence. His account was vague, but he said he recalled Mr Prime and the appellant being angry with one another at the house and, at some stage, he (the appellant’s father) hit his son over the head with the iron bar. He said he was trying to knock his son out. The witness said his son was out of control. Later the witness went outside and saw his son being chased by Mr Prime. The appellant and Mr Prime struggled and Mr Prime fell to the ground.
The appellant gave evidence. He said that when the group returned to the house Mr Prime made some insulting remarks about the appellant’s girlfriend. He said at one stage Mr Prime chased him around the kitchen. He said he remembered punching a hole in the wall of the house because he was angry. He said the next thing he remembers is feeling a blow to the back of his head. He was dizzy and saw “blackness”. He said he fell to the ground. His next memory is walking along the road to a park. In cross-examination he conceded that there may have been some pushing going on outside the house. However, he had no recollection of stabbing Mr Prime.
The defence of mental incompetence
At the commencement of the proceedings in the District Court counsel for the appellant advised the court that the defence of mental incompetence was being raised. The trial judge decided to proceed first with the trial of the objective elements of the offence pursuant to the procedure set out in s 269G of the Criminal Law Consolidation Act 1935 (“the CLCA”).
The trial of the objective elements took place before the judge sitting without a jury. By consent, the prosecution tendered statements from Mr Prime and the doctor who examined him at the Royal Adelaide Hospital. Formal admissions were made by counsel on behalf of the appellant. The admissions were as follows:
1Pursuant to s 34 Evidence Act 1929, Michael David Hughes admits that in the late afternoon of Saturday the 26^th day of September, 2002, adjacent to premises situated at 11 Delta Court Salisbury Downs, he inflicted the following injuries to Allan Gary Prime namely a laceration to the left side of the neck extending from below the left ear to the left corner of the mouth, which laceration penetrated the muscle underlying the skin and penetrated the jugular vein, and a small wound to the back.
2Pursuant to s 34 Evidence Act 1929, Michael David Hughes admits that the laceration particularized in paragraph one above constitutes a wound within the meaning of s 21 Criminal Law Consolidation Act 1935.
The trial judge made a finding that the objective elements of the offence had been established beyond reasonable doubt.
Subsequently a jury was empanelled to determine the issue of mental competence and, if not satisfied of mental incompetence, whether the subjective elements of the offence charged had been established.
The jury found that the defence of mental incompetence was not proved and that the appellant was guilty of the offence of wounding with intent to cause grievous bodily harm.
In view of the evidence of the appellant as to the effect of the blow to his head and other evidence that he was intoxicated, the trial judge directed the jury on automatism and the specific intent required for the offence charged.
According to the argument presented on appeal, counsel for the appellant at the trial concentrated his efforts on a “hopeless defence” of mental incompetence and failed to deal adequately with the issues of automatism and specific intent. In addition, it is asserted that defence counsel was incompetent in his general conduct of the trial, particularly with respect to the cross-examination of prosecution witnesses. There is no suggestion that counsel acted contrary to his instructions in any respect.
The defence of mental incompetence was based on the assertion that the appellant, at the time of the alleged offence, was suffering from a mental impairment which resulted in an inability by the appellant to control his conduct.
It is convenient at this point to summarise the statutory provisions which now regulate the defence of mental incompetence and which are set out in Part 8A of the CLCA:
A person’s mental competence to commit an offence is to be presumed, unless the person is found to have been mentally incompetent to commit the offence: s 269D. In the event that the issue of mental competence is raised, the court must decide whether it has been established, on the balance of probabilities, that the accused was, at the time of the alleged offence, mentally incompetent to commit the offence: s 269GB(3).
Section 269C of the CLCA provides as follows:
A person is mentally incompetent to commit an offence if, at the time of the conduct alleged to give rise to the offence, the person is suffering from a mental impairment and, in consequence of the mental impairment –
(a)     does not know the nature and quality of the conduct; or
(b)     does not know that the conduct is wrong; or
(c)     is unable to control the conduct.
“Mental impairment” is defined in s 269A(1) as follows:
(a)     a mental illness; or
(b)     an intellectual disability; or
(c)     a disability or impairment of the mind resulting from senility,
but does not include intoxication.
“Mental illness” is defined as meaning “a pathological infirmity of the mind (including a temporary one of short duration)”.
The following explanation appears as a footnote in the CLCA:
A condition that results from the reaction of a healthy mind to extraordinary external stimuli is not a mental illness, although such a condition may be evidence of mental illness if it involves some abnormality and is prone to recur (see R v Falconer (1990) 171 CLR 30).
In The Queen v Falconer[1] Mason CJ, Brennan and McHugh JJ commented in their joint judgment on the scope of the term “mental disease or natural mental infirmity” used in s 27 of the Criminal Code (WA). Their Honours said at 49:
Under the Code, as well as under the common law, it is necessary for the trial judge to determine what is meant by the terms used to describe the mental condition of a person who is of unsound mind or insane. The meaning of those terms is a question of law, not a question to be answered by medical witnesses. Although there is some divergence in the leading judgments, generally speaking a distinction has been drawn between an underlying mental infirmity which is productive of one of the prescribed effects and a transient non-recurrent mental malfunction caused by external forces which produces an incapacity to control actions. The former is treated as unsoundness of mind or insanity; the latter is no more than a variation within the norm. Cases under the Code, as we shall see, have been decided by reference to concepts drawn from the common law despite some variations in terminology and there is no reason to hold that the term “disease of the mind” in the M'Naghten Rules and the terms “mental disease or natural mental infirmity” in s 27 of the Code connote different mental conditions.
[1] (1990) 171 CLR 30 at 49.
It is apparent from the definition of the term “mental illness” in s 269A(1)(a) of the CLCA and the accompanying footnote that the legislature intended to preserve the distinction referred to in the joint judgment in Falconer.
It seems that the decision to raise the defence of mental incompetence emanated from a psychiatric report prepared for the defence by Dr Czechowicz. In his report Dr Czechowicz referred to the history of the appellant’s alcohol and drug consumption on the day of the incident and the blow to his head delivered by his father. After referring to the appellant’s version that he had “blacked out” following the blow to his head Dr Czechowicz said in his report:
His history is consistent with Michael being in a “post concussional” state mixed with a level of substance intoxication (alcohol and cannabis).
People who are in an altered state of consciousness with “organic” symptoms often have “blackouts” where memory may be impaired over a period of minutes or hours. When physical or mental “attacks” occur or are perceived to occur the subject may react violently but lacking appropriate judgement may also be unable to exercise control to prevent such behaviour from occurring.
CONCLUSION
Michael describes a situation where he is unable to recall events due to temporary impairment of mental function. I cannot determine whether he was able to exercise control but it is probable that he was unable to exercise such control.
He does show mild depressive symptoms but these are only partly relevant but they do contribute to making his tendency to abuse substances more likely than average.
He did not show signs of a major mental illness (psychosis) at the time of my examination. I believe that he is now mentally fit to plead and that he is capable of instructing a solicitor.
Dr Czechowicz was called to give evidence for the defence. The trial judge summarised part of his evidence in the following passage in the summing-up:
Dr Czechowicz considered that the accused’s behaviour was consistent with a post concussional state combined with a level of substance intoxication from alcohol and marijuana. People in that state often have blackouts, whether due to alcohol or concussion, and at the same time they can have periods of lucidity or remember particular things.
In this case he could not say whether the accused’s presentation, on that day, was due to a concussive state or to the alcohol or drugs. He did say, however, that when a person is in such a state of cerebral irritation and perceives an attack on him, he may respond by attacking back and may not be able to exercise control. He thought that was what had occurred in this case. He said that the accused had had a temporary impairment in his mental function and was probably unable to exercise control at the time.
He was not able to conclude whether or not there had been brain damage caused by the blow to the head, but his loss of memory was certainly consistent with a level of concussion. Having been shown Dr Middleton’s report, he said it was consistent with that conclusion.
In cross-examination he agreed that whether or not the accused was concussed would depend on the severity of the blow. He found that there were no signs of mental illness in the accused at the time of the examination and he had no specific opinion as to whether there was any mental illness present at the time of the incident. Whilst there was a history of some baseline tendency to depression, there was no indication of any major psychosis as at the time of his examination.
He had considered the accused’s mental state on the day of and in the hours leading up to the time of the incident. He could not exclude the possibility of a psychiatric condition being present then and it was possible that the accused might have suffered from some depressive residue but it was also possible that there was a state of intoxication. That was an issue raised by other doctors and there was a history of some alcohol and cannabis use.
He said that, on the balance of probability, other than the effects of alcohol, marijuana or the blow to the head, the accused’s mind was otherwise healthy on the day of the incident and any difficulties he may have had with his mental state were likely caused by a combination of those three things; that is to say, the effects of those external stimuli on an otherwise healthy mind.
Where in his report he had referred to the accused suffering a temporary impairment of mental function at the time of the incident, he was then referring to the effects of external stimuli, being the blow to the head, the alcohol and the marijuana, on an otherwise healthy mind. It was those external stimuli which meant that the accused, in his view, was probably unable to exercise control; that is to say, the judgment one exercises as to what to do in a particular situation or, put in another way, he said, self-restraint. In the particular circumstances here, he was not able to say that the accused lost the ability to restrain himself. He really did not know one way or the other.
In re-examination, he said it was probable that it was either the blow on the head, the alcohol or the marijuana that was affecting him.
Mr Reid, a psychologist who gave evidence for the prosecution, was one of the medical experts appointed by the trial judge to examine the appellant. Mr Reid stated in his report to the court that, on the assumption that the appellant’s version of the incident was accurate:
It seems reasonable to conclude, that on the basis of probability, at the time of the alleged offence Mr Hughes was intoxicated, under the influence of marijuana and on the basis of possibility, was also suffering from a Post-Concussion Syndrome. It is not possible to be more accurate about this in a retrospective fashion, but it seems clear that he did not suffer a head injury more severe than a concussion or mild head injury.
The acute effects of intoxication are well known and the adverse influence this has on a person’s ability to think and reason appropriately. With regard to the effects of a possible or even probable concussion, it is known that people can function in an apparently appropriate manner, including thinking and acting in a seemingly planned way. It is also known that despite such reasonable behaviour during the time of a concussive head injury, some victims of concussion do not recall these actions at a later stage. This has been noted on numerous occasions, including sporting activities where a person has suffered a severe concussion but continued to play the sport, but has no recollection of this afterwards.
It is not possible retrospectively to determine the actual severity of his concussion at that stage, especially as this was combined with a state of intoxication, but I can be reasonably sure that he did not suffer a major brain injury as evidenced by the lack of post-traumatic amnesia from the time he woke up the following morning.
It is not clear therefore whether or not Mr Hughes was suffering from a temporary state of mental impairment at the time of this alleged offence, over and above the acute effects of his intoxication and drug use. The presence of a possible concussive head injury does not necessarily assume that he was unable to understand the nature and quality of his conduct at the time. It does mean that he may not remember this at a later stage however, but this of course could be further compounded by his intoxicated state.
Dr Raeside, who was also called by the prosecution, rejected the suggestion that the appellant suffered from any form of mental impairment.
It became apparent in the course of the cross-examination of Dr Czechowicz and the evidence of Mr Reid that, when they spoke of mental impairment in the context of the present case, they were speaking of a temporary condition resulting from the combined effects of the blow to the head and the consumption of alcohol and marijuana.
When the trial judge summed-up to the jury on this issue he said:
So I want to say these things to you: first, if you find that there was a mental impairment and that the only cause of it was intoxication by alcohol or drugs, then I tell you as a matter of law it cannot support a mentally incompetent defence.
Secondly, if you accept the prosecution argument that Dr Czechowicz concluded that the accused’s behaviour exhibited the reaction of a healthy mind to the extraordinary stimuli of the blow to the head, the drugs and the alcohol, and that there was otherwise no abnormality attaching to it and it was not prone to recur, and if you think there is no other evidence supporting the existence of mental illness in terms of the legal definition I have given you, then you will not find the claim of mental incompetence to have been sustained. So that is a question for you and in considering it you will have to consider the evidence that you heard from Dr Raeside, Mr Reid and Dr Czechowicz.
If, however, you are satisfied that a mental impairment, in this case a pathological infirmity of the mind, was present at the time of the incident, the next stage then for you will be to determine whether it produced any of those consequences upon which the accused relies; namely, whether it resulted in him not knowing the nature and quality of his conduct, not knowing that it was wrong or being unable to control his conduct.

According to the argument put on behalf of the appellant, defence counsel should not have raised the issue of the appellant’s mental competence at the trial and the effect of having done so was productive of a miscarriage of justice.
It is highly likely that if Dr Czechowicz had been proofed properly the difficulty in resting a defence of mental incompetence on his opinions would have become apparent. What he meant by mental impairment was unveiled in a short space of time at the outset of his cross-examination.
On the limited material before this court it could not be said that the mere raising of the defence of mental incompetence led to a miscarriage of justice arising from the conduct of the trial by defence counsel. There was some ambiguity in Dr Czechowicz’s report and it may have appeared to defence counsel that the report provided the basis for a defence of mental incompetence. In any event, the raising of arguments which have little prospect of success or the fact that counsel held an erroneous view of the law do not necessarily result in an unfair trial or a miscarriage of justice.[2]
[2] Nudd v The Queen (2006) 225 ALR 161 at [20].
Automatism and the proof of specific intent
The appellant’s case on appeal goes further. It is argued that because of the appellant’s mental competence being raised at the trial and the emphasis which was given to it in the conduct of the defence, the issues of intent and automatism were largely neglected by defence counsel. It was argued on appeal that these were the issues which should have been relied upon by the defence to support the argument that the proper verdict was one of acquittal or, at least, unlawful wounding.
It is of importance to note that there was a good deal in common between the facts relevant to the defence of mental incompetence on the one hand and those relevant to the issue of automatism and specific intent on the other hand. As has been pointed out, Dr Czechowicz’s views as to the appellant’s mental state were based on the combined effect of the blow to the appellant’s head and the appellant’s intake of drugs and alcohol.
In my view there is no basis for any concern that the facts relevant to automatism and intent were not investigated adequately for all relevant defence purposes. Furthermore, there was no real dispute at the trial as to the extent of the appellant’s drug and alcohol consumption. Nor was it in dispute that the appellant’s father struck him a blow to the head with an iron bar.
Mr White, for the appellant, argued that there were some issues which could have been pursued further and which were not. He said there was a dispute on the evidence as to the force of the blow. The appellant’s father gave evidence that he hit his son with considerable force and tried to knock him out. Mr Prime said in examination-in-chief that it was a “light hit”. He was cross-examined on this topic and reaffirmed his evidence. He was then cross-examined on a previous statement to the police. It was put to Mr Prime that he had said that he did not see the blow. He agreed that he may have made this statement to the police but maintained his evidence that he did see the blow. In my view, defence counsel cannot be criticised for failing to test the evidence of the witness further.
There was also criticism of counsel’s cross-examination of Dr Raeside on these issues. However, I do not think that this cross-examination was so clearly deficient as to lead to the conclusion that a miscarriage of justice could have resulted from or been contributed to by reason of a failure to test Dr Raeside’s evidence in an effective manner.
In my view, the jury had before it the evidence relevant to the defence case in so far as that case involved a challenge to the contention that the prosecution had proved the charge beyond reasonable doubt. At the very least, there were no glaring omissions in the conduct of the defence in this respect.
Criticism was also made of alleged deficiencies in the final address of defence counsel to the jury. It must be acknowledged that most of the address was devoted to the mental incompetence issue. However, towards the end of his address, defence counsel explained to the jury that they had to consider “other matters” apart from mental incompetence. He said these matters had to be proved beyond reasonable doubt. He conceded that the physical elements of the charge had been established, but he submitted that there was a need to consider “the mental element, the intention to do these things”.
Counsel said that it was the defence case that there was no relevant intention on the part of the appellant. He told the jury that the judge would instruct them on the relevance of intoxication to the formation of the necessary mental element and he referred to the relevance of automatism and the fact that the appellant had no memory of obtaining the knife. He said that if this was “just simply an automatic reaction without the intention, then my client is entitled to a verdict of not guilty”.
Earlier in his address counsel dealt with the effect of the blow to the appellant’s head and the extent of his intoxication, albeit in the context of mental incompetence.
No criticism is made of the summing-up by the trial judge. He dealt adequately with the elements of the offence including the mental element which had to be proved by the prosecution and commented on the defence evidence relevant to these issues.
As has been said, counsel for the appellant at the trial devoted most of his address to the issue of mental incompetence. His comments on the matters which the prosecution were required to prove were brief. However, at least by the end of the summing-up, the jury would have had a sufficient understanding of those issues in the case which were important for them to consider in deciding whether there were any deficiencies in the prosecution case which might raise a reasonable doubt about the appellant’s guilt.
It should also be borne in mind that the evidence left limited scope for comment by the defence in relation to automatism and intent. There was no dispute that the appellant attacked the victim stabbing him in the back and causing serious injuries to his throat. The appellant said he could recall having an argument with the victim in the kitchen where they were punching each other. It is clear that the appellant and the victim went outside and it appears that the appellant caused some damage to the victim’s car. The appellant must have taken up a knife or other sharp instrument and used it to inflict the injuries. There was no complexity about the facts and the matters for determination were readily understandable by the jury.
Leaving aside the issue of mental incompetence, the defence case involved a challenge to the prosecution case. The situation in this respect was similar to that in Nudd v The Queen where Gummow and Hayne JJ commented:[3]
… because the appellant, on the evidence led at trial, could do no more than assert that the prosecution had failed to prove its case, the trial judge’s instructions on what had to be shown sufficed to put the appellant’s case as well as it could be put.
[3] (2006) 225 ALR 161 at [28].
The general conduct of the trial
Other criticisms of the conduct of the defence case are made in the grounds of appeal. Reference is made to allegedly pointless objections by defence counsel, shouting at a witness, arguing with a witness, interrupting a witness, failing to put certain questions properly and attempting to tender documents which were inadmissible. It is also alleged that the defence counsel did not have an adequate understanding of certain propositions on the law which he put to the court.
At the invitation of counsel for the appellant I have considered these matters in their combined effect, but I reject the submission that they were productive of a miscarriage of justice.
During the trial the appellant made formal admissions pursuant to s 34 of the Evidence Act 1929. He admitted that he inflicted injuries to Mr Prime consisting of a laceration to the left side of the neck and a small wound to the back.
It was argued on appeal that these admissions should not have been made in the circumstances. First, it was submitted that the section does not permit admissions to be made unless an accused has actual knowledge of the subject matter of the admissions. There is no such limitation in the wording of the section. Section 34 enables matters which are not in dispute to be agreed. If an accused wishes to acknowledge that a matter can be proved, there would seem to be no reason why personal knowledge of the fact would be necessary before the making of an admission under the section.
Furthermore, the decision to admit these facts in the present case cannot be regarded as an unwise tactic by counsel which adversely affected the interests of his client.
Legal principles relevant to the appeal
Appeals based upon the incompetence of defence counsel at the trial have become more common in recent years. Various adjectives have been used in the course of argument on these appeals to describe the level of incompetence alleged. However, as the authorities make clear, the essence of the appeal consists not in the degree or nature of the conduct as an end in itself, but whether the actions or omissions of counsel resulted in a miscarriage of justice.
Section 353(1) of the CLCA provides that, on an appeal against conviction, the Full Court:
… shall allow the appeal if it thinks 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 before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law, or that on any ground there was a miscarriage of justice.
The present appeal must be determined according to whether there has been a miscarriage of justice. As Gleeson CJ pointed out in Nudd v The Queen[4] in an appeal of this nature the emphasis is on outcome and process and requirements of justice according to law. His Honour said[5]:
It is natural for a person aggrieved by the outcome of a criminal trial to seek to assign blame, but where a miscarriage of justice is said to arise from a failure of process, it is the process itself that is judged, not the individual performance of the participants in the process. If a trial judge fails to instruct a jury on an essential point of law, the explanation might be that the judge was inexperienced, or ill, or absent-minded, or temporarily distracted by other concerns. That would be irrelevant. It is the acts and omissions of the judge that matter; not personal failings or problems that might account for those acts or omissions. Similarly, where the conduct of counsel, as a participant in the trial process, is said to give rise to, or to be involved in, a miscarriage of justice, ordinarily it was what was done or omitted that is of significance, rather than why that occurred.[6]
[4] (2006) 225 ALR 161 at [5].
[5] At [8].
[6] See also ibid Gummow and Hayne JJ at [24], [25]. TKWJ v The Queen (2002) 212 CLR 124 at 149, 157-158.
The Chief Justice emphasised the nature of the enquiry by quoting from the comment of Lord Carswell in Teeluck v State of Trinidad and Tobago[7]:
… 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.
[7] [2005] 1 WLR 2421 at 2433.
In determining whether the appellant has satisfied the onus of establishing a miscarriage of justice where incompetence of counsel is alleged, it is appropriate to ask:
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?[8]
[8] Nudd v The Queen (2006) 225 ALR 161 at [158].
In TKWJ v The Queen[9] the appellant was charged with sexual offences against C. During the trial defence counsel advised the prosecutor that he proposed to lead evidence of the appellant’s good character. The prosecutor indicated that, if this occurred, he would call K the sister of C, to give evidence of the appellant’s alleged sexual misconduct with her. Defence counsel decided not to call the evidence and did not seek a ruling from the trial judge as to the admissibility of the evidence of K in the event of character evidence being called.
[9] [2002] 212 CLR 124.
Glesson CJ referred to defence counsel’s decision as “a rational tactical decision” which “did not make the trial unfair, or produce a miscarriage of justice.[10]
[10] Ibid at [17].
McHugh J approached the appeal in the following way:
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.[11]
But in other cases - perhaps the majority - the conduct of counsel - although irregular - will not necessarily deprive the accused of a fair trial. Not every error makes the trial unfair. Nevertheless, the irregular conduct of counsel may have affected the outcome. And a miscarriage of justice always occurs when there is a significant possibility that a material irregularity at the trial has resulted in the conviction of an accused person.[12]
[11] cfWilde v The Queen (1988) 164 CLR 365.
[12] Ratten v The Queen (1974) 131 CLR 510 at 516.
After reviewing the proceedings in the light of the criticisms of the manner in which the defence case was presented, I have reached the conclusion that the appellant was not deprived of a fair trial by reason of conduct of the defence, nor did a miscarriage of justice result from the manner in which his case was presented.
I would dismiss the appeal against conviction.
Appeal against sentence
The appellant was sentenced to imprisonment for five years with a non-parole period of two years and six months. He has appealed against the sentence on the ground that it is manifestly excessive.
The appellant was 27 years of age at the time he was sentenced. He left school at the age of 16 and was in employment until he was injured in a work accident in 2001. He is in a relationship with a partner and has two children from previous relationships. He was caring for one of the children at the time he was sentenced. He has a number of previous convictions. Most of them are for traffic offences, but there are two appearances recorded in relation to charges of common assault.
The offence resulted in serious injury to the victim. The wound to the victim’s neck severed muscles, nerves and the jugular vein. The victim continues to suffer physically and psychologically.
The sentence was well within the range appropriate for this offending.
I would dismiss the appeal against sentence.
GRAY J.
These appeals against conviction and sentence should be dismissed. I agree with the reasons of Duggan J. However, there is one aspect of the matter on which I wish to comment.
Counsel for the appellant submitted that a risk of a miscarriage of justice had arisen in the present case sufficient to warrant a retrial. It was said that this was the result of incompetence on the part of defence counsel at trial.
Allegations of professional incompetence or ineptitude require close examination. Such allegations may be spurious, without any foundation or simply mischievous. They may turn out to be correct and have serious consequences for the lawyers involved. The making of unanswered allegations may also have serious consequences.[13]
[13] Anderson v H.M. Advocate [1996] SLT 155.
Counsel for the appellant made a number of serious allegations. The primary complaint was that defence counsel at trial allowed the “real” defence – of intoxication and automatism – to be overshadowed by a fruitless investigation into the appellant’s mental competence. This occurred against the background of counsel’s alleged failure to properly investigate the basis of the appellant’s mental competence with the defence psychiatrist.
Other complaints related to the conduct of counsel in the courtroom. This conduct was said to be of such a nature as to irritate and upset the jury and to distract the jury’s attention from the “real” defence. Finally it was said that admissions made during the course of the trial should not have been made.
The complaints went so far as to suggest that counsel was unfit to manage the trial. These were very serious allegations. However, little was put before this Court to establish what had occurred and whether there was any incompetence. There was no suggestion that trial counsel had been made aware of these allegations or had been given an opportunity to acknowledge the correctness of, or answer, the allegations. No affidavit was sought to be placed before this Court from either the appellant or trial counsel. No request was made for trial counsel to attend before this Court to provide any explanation. Counsel for the DPP on the appeal did not seek to criticise or support the conduct of defence counsel at trial. It was submitted that this was not the role of the DPP.
The High Court has recently considered whether miscarriages of justice arose as a result of counsel’s incompetence in three recent decisions: Ali,[14] TJKW[15] and Nudd.[16] These authorities establish that the ultimate question to be answered is whether, viewed objectively, proven conduct gave rise to a material risk of a miscarriage of justice. In each case, it was decided that no such risk had been established. In TKWJ, the Court had before it an affidavit from the solicitor and defence counsel at trial in relation to their conduct and in Nudd, the appellant and defence counsel at trial gave evidence on the appeal. The members of the Court, however, expressed views that differ to some degree on whether the need or occasion may arise where it would be necessary to explore the reasons for any mistake or incompetence of counsel at trial.
[14] Ali v The Queen [2005] HCA 8.
[15] TKWJ v The Queen (2002) 212 CLR 124.
[16] Nudd v The Queen (2006) 162 A Crim R 301.
In Nudd, Gleeson CJ observed that where the conduct of defence counsel is said to give rise to a miscarriage of justice, it is the role of the appeal court to conduct an objective inquiry, focusing on what was done or omitted to be done rather than why such conduct occurred. The Chief Justice also noted, that circumstances may arise where it will be necessary to answer that latter question:[17]
To the extent to which it is reasonably possible, the focus of attention should be the objective features of the trial process. Nevertheless, there may be circumstances where it is relevant to ask why some act or omission occurred. In some cases, for example, it may be material to know that counsel took a certain course up on the instructions of the client. There could be circumstances in which it is material to know that a course was taken contrary to instructions. The possibility of a need to know the reason for conduct cannot altogether be eliminated. In general, however, as far as justice permits, the enquiry should be objective.
[17] Nudd v The Queen (2006) 162 A Crim R 301 at [10 ].

Gleeson CJ later commented:[18]
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.
[18] Nudd v The Queen (2006) 162 A Crim R 301 at [17].
Gummow and Hayne JJ observed:[19]
As four members of this Court explained in TKWJ v The Queen[20], describing trial counsel’s conduct of a trial as “incompetent” (with or without some emphatic term like “flagrantly”) must not be permitted to distract attention from the question presented by the relevant criminal appeal statute, here s 668E of the Criminal Code (Q). “Miscarriage of justice”, as a ground on which a court of appeal is required by the common form of criminal appeal statute to allow an appeal against conviction, may encompass any of a very wide variety of departures from the proper conduct of a trial. Alleging that trial counsel was incompetent does not reveal what is said to be the miscarriage of justice. That requires consideration of what did or did not occur at the trial[21], of whether there was a material irregularity in the trial[22], and whether there was a significant possibility that the acts or omissions of which complaint is made affected the outcome of the trial[23].
Pointing to the fact that trial counsel did not take proper instructions from the accused, did not properly understand the statutory provisions under which the accused was charged, or had not read the cases that construed those statutory provisions, would reveal that counsel was incompetent. Showing all three of these errors would reveal very serious incompetence. But an appeal against conviction must ultimately focus upon the trial and conviction of the accused person not the professional standards of the accused's counsel. Was what happened, or did not happen, at trial a miscarriage of justice?
[19] Nudd v The Queen (2006) 162 A Crim R 301 at [24]-[25].
[20] TKWJ v The Queen (2002) 212 CLR 124 at [31] per Gaudron J, [75], [97] per McHugh J, [101] per Gummow J, [103] per Hayne J.
[21] TKWJ v The Queen (2002) 212 CLR 124 at [31] per Gaudron J.
[22] TKWJ v The Queen (2002) 212 CLR 124 at [79] per McHugh J.
[23] TKWJ v The Queen (2002) 212 CLR 124 at [33] per Gaudron J, [79] per McHugh J, [101] per Gummow J, [104] per Hayne J.
Kirby J commented:[24]
…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.
…
…A focus on the consequences of the suggested incompetence has been emphasised by this Court[25], 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.
[24] Nudd v The Queen (2006) 162 A Crim R 301 at [64],[68].
[25] TKWJ v The Queen (2002) 212 CLR 124 at [79] per McHugh J, [103] per Hayne, J; Ali (2005) 79 ALJR 662 at [38] per Hayne J; 214 ALR 1 at 10.
There are reasons, both legal and pragmatic, which support giving latitude to counsel appearing in trials.[26] Parties are ordinarily held to the way in which their counsel has presented the case,[27] as the relationship between lawyer and client finds its foundations in the law relating to agency and apparent authority,[28] and trials could not operate effectively without according deference to the mass of decisions necessarily made by a lawyer in the course of conducting a trial.[29] The realities of the trial process influence the approach taken by appeal courts. As Kirby J commented:[30]
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[31]. 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”[32].
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”.[33]
[26] TKWJ v The Queen (2002) 212 CLR 124 at 147 at [74] per McHugh J
[27] 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.
[28] Strauss v Francis (1866) 1 QB 379 at 381 per Blackburn J cited in TKWJ v The Queen (2002) 212 CLR 124 at [74] per McHugh J.
[29] R v Birks (1990) 19 NSWLR 677 at 682-685; TKWJ v The Queen (2002) 212 CLR 124 at [8] per Gleeson CJ; Ali (2005) 79 ALJR 662 at [7] per Gleeson CJ.
[30] Nudd v The Queen (2006) 162 A Crim R 301 at [80]-[81].
[31] R v GDB [2000] 1 SCR 520 at [27] per Major J, delivering the reasons of the Court.
[32] R v S [1998] 3 NZLR 392 at 394. See Ratten v The Queen (1974) 131 CLR 510 at 516; cf TKWJ v The Queen (2002) 212 CLR 124 at [78] per McHugh J.
[33] Teeluck v State of Trinidad and Tobago [2005] 1 WLR 2421 at [39] (PC).
Consequently, as McHugh J observed in TKWJ, the critical issue is whether the conduct of counsel has resulted in a miscarriage of justice:[34]
The critical issue in an appeal like the present is not whether counsel erred in some way but whether a miscarriage of justice has occurred. However, “whether counsel has been negligent or otherwise remiss…remains relevant as an intermediate or subsidiary issue”. That is because the issue of miscarriage of justice in such cases ordinarily subsumes two issues. First, did counsel’s conduct result in a material irregularity in the trial? Secondly, is there a significant possibility that the irregularity affected the outcome? Whether a material irregularity occurred must be considered in light of the wide discretion that counsel has to conduct the trial as he or she thinks best and the fact that ordinarily the client is bound by the decisions of counsel…The appellant must show that the failing or error of counsel was a material irregularity and that there is a significant possibility that it affected the outcome of the trial.
[34] TKWJv The Queen (2002) 212 CLR 124 at [79] (footnotes omitted).
In Ali, the appellant complained that a miscarriage of justice had occurred as a result of trial counsel not applying for a separate trial from the co-accused and not objecting to evidence that showed the appellant to be of bad character. Hayne J, with whom McHugh J agreed, observed:[35]
As McHugh J pointed out in TKWJ v The Queen, “[t]he critical issue in an appeal like the present is not whether counsel erred in some way but whether a miscarriage of justice has occurred”. The conduct of counsel remains relevant as an intermediate or subsidiary issue because the issue of miscarriage of justice in a case such as the present requires consideration of the two questions which McHugh J identified in TKWJ. Did counsel’s conduct result in a material irregularity in the trial? Is there a significant possibility that the irregularity affected the outcome? But the ultimate question is whether there has been a miscarriage of justice.
[35] Ali v The Queen [2005] HCA 8 at [18] (footnotes omitted).
These observations have a relevance in the present case, as it is unknown whether the relevant conduct of counsel at trial was undertaken with the instruction of the appellant, and the circumstances in which each particular course of conduct was decided upon are also unknown. Absent evidence on these topics, it is impossible to determine in the present case whether the allegations being advanced have any substance.
It is of concern that serious allegations have been advanced in the present case without any real attempt to provide the necessary factual foundation to support those allegations, or to allow defence counsel at trial the opportunity to address those allegations.
There is no suggestion by counsel for the appellant that the appellant was mentally incapacitated at the time of the trial or appeal. No evidence was placed before this Court to suggest that his defence at trial was conducted other than in accordance with his instructions. It has not been shown that any conduct of defence counsel could have led to a miscarriage of justice.
This Court is not able to make findings of incompetence or ineptitude. This Court is not able to explore the reasons for the decision to challenge mental competence in the present case. The appellant’s complaints are in this respect built on conjecture. The challenged conduct has not been “proved”. An appeal court should act with particular care before passing any adverse comments on decisions made in the course of the trial by defence counsel and of the conduct of defence counsel.
Applying the objective test identified by the High Court to the present circumstances leads to the conclusion that the appeal against conviction should be dismissed. I respectfully accord with the reasons given by Duggan J.
VANSTONE J: I agree that the appeals against conviction and sentence should be dismissed for the reasons given by Duggan J. I also agree with the further reasons given by Gray J in respect of the appeal against conviction.