R v Kennedy

In R v Kennedy, the Court of Appeal of South Australia considered an appeal against convictions for sexual offences. The appellant, Kennedy, argued that a miscarriage of justice had occurred due to his trial counsel's failure to advise him of his right to choose whether or not to give evidence.

The central legal issue before the Court was whether the appellant's belief that he was obliged to give evidence, stemming from his lawyer's failure to inform him of his choice, constituted a miscarriage of justice. The Court was required to determine if this error, concerning a fundamental aspect of the trial process, warranted setting aside the convictions.

The Court found that it could not reject the appellant's evidence that his lawyer had not advised him of his right to remain silent, that he believed he was compelled to testify, and that he would have chosen not to give evidence had he been aware of this option. Applying principles from New Zealand authorities, the Court emphasised the unique importance of the decision to give evidence. It held that counsel's error, whether by giving erroneous advice or failing to advise, directly impacted this central choice and led to the appellant making a decision contrary to his wishes. Consequently, the Court concluded that a miscarriage of justice had occurred.

Given the finding of a miscarriage of justice, the Court determined that the proviso, which allows an appeal to be dismissed if no substantial miscarriage of justice has occurred, could not be applied. The Court noted that the appellant was disadvantaged during cross-examination due to his lack of proper advice regarding his right to remain silent. The convictions were therefore set aside, and a new trial was ordered.