R v Kyriacou

R v KYRIACOU
[2000] SASC 312

Court of Criminal Appeal: Duggan, Nyland and Bleby JJ

1................ THE COURT:... The appellant appeals against his convictions. There are two grounds of appeal. Both allege a miscarriage of justice. Both relate to the conduct of the trial by the appellant’s counsel. One ground alleges that his counsel failed to put a key element of the appellant’s case to a material prosecution witness. The other relates to the circumstantial nature of the case against the appellant and the advice given to the appellant by his counsel at the end of the prosecution case not to give evidence. He complains that he was specifically but wrongly advised by his counsel that no comment could be made to the jury if he did not give evidence. He was advised not to give evidence, and although he had wished to give evidence, he acted on the advice and did not do so. As a result, the trial Judge gave a direction in accordance with Weissensteiner v The Queen (1993) 178 CLR 217 at 228 ‑ 229 to the effect that the inferences which the prosecution asked the jury to draw from the primary facts they found proved could be more safely drawn because the accused had elected not to give evidence.

The appellant argues that these two failures of his counsel, in combination, leave open the possibility that, had they not occurred, the prosecution would not have excluded a hypothesis consistent with innocence, and that there was “a significant possibility that a jury, acting reasonably, would have acquitted the appellant”: Mickelberg v The Queen (1989) 167 CLR 259 per Mason CJ at 273. See also Brennan J at 275; Toohey and Gaudron JJ at 301.
The appellant was charged with eight counts of operating an account with a cash dealer in a false name contrary to s 24(2) of the Financial Transactions Act 1988 (Cth). The offences were alleged to have occurred between 10 January and 19 January 1994. In each case the account in question was an account with the Westpac Bank at a branch in South Australia in the name of John Pengomitis. Counts 1 and 8 alleged the deposit of cheques in the account. Counts 2‑7 alleged the withdrawal of monies from the account.
The principal circumstantial evidence relied on by the prosecution was that a South Australian driver’s licence in the name of John Pengomitis, containing a photograph of the appellant and giving the appellant’s address, was issued on about 6 May 1993. A driver’s licence in that name was used to open the account, although the licence bearing the photographic image was not produced. What was produced was a temporary replacement licence issued on 20 September 1993, the same day as the bank account was opened. The address of the holder of the account was the appellant’s address. The appellant, in the name of John Pengomitis, sold or was involved in the selling of a stolen motor vehicle in Melbourne for $8,000 within days of the deposit of $8,000 in the bank account on or about 11 January 1994. The vendor of the motor car was handed a cheque and cash in that amount, which amount was deposited in the account using an ATM at Prahran in Victoria. A John Pengomitis had sold or was involved in the selling in Melbourne of another stolen motor vehicle for $10,400 within days of the deposit of that amount in the bank account on about 18 January. That cheque was deposited in the bank account using an ATM at Windsor in Victoria. All the transactions were carried out through an ATM, and the person operating the ATM must have used the correct card and personal identification number for that purpose. The card in question was found in a car used by the accused on 10 February 1994 when it was searched by a police officer. Also found in the same place was another Westpac card and Commonwealth Bank card in the name of the appellant. When the appellant was interviewed by a police officer on 10 February 1994 he first gave his name as John Pengomitis, but later admitted his real name. Detectives also found two South Australian car numberplates, reservation for which had been made in the name of John Pengomitis, at the appellant’s then South Australian address.
Because the grounds of appeal relied on proof of facts which had occurred during the course of the trial, and the appellant having waived any legal professional privilege he had as to communications between himself and his counsel, this Court received three affidavits sworn by the appellant, one affidavit sworn by his counsel, and a report of his counsel directed to be supplied by the judge who gave leave to appeal. The Court also received an affidavit from a solicitor employed in the office of the Commonwealth Director of Public Prosecutions to which were exhibited a number of documents comprising the appellant’s written instructions given during the trial and other documents used by counsel at the trial. Those documents had been produced by the appellant’s present solicitor at the request of the Director of Public Prosecutions.
Before this Court, the appellant also gave evidence in chief and was cross‑examined on his affidavits, following which the Court itself called the appellant’s former counsel, who was cross‑examined both by the appellant and the respondent.
Before dealing further with the specific grounds of appeal, it is necessary to record some essential findings of fact. Fortunately, there is little material difference between the evidence given by the appellant and that of his former counsel.
By way of background to these proceedings and by way of explanation for the delay in the trial, the appellant had been tried before a jury and convicted in Victoria for offences in relation to the sale in Victoria of cars stolen in South Australia. It was the proceeds of the sale of two such cars that the prosecution alleged had been paid into the bank account and withdrawn by the appellant. The transcript of proceedings before the Victorian court and other associated material had been made available to the appellant’s counsel. He had read that transcript and had made appropriate notes on witness statements supplied by the prosecution in this case for cross‑examination of the witnesses concerned, based on the evidence given by them in the Victorian court.
The appellant’s instructions to his counsel were given over a series of conferences which took place before the trial began. At all material times the appellant was on bail. No notes were made by counsel of those instructions nor was any proof of the appellant prepared.
What follows is a summary of what the appellant says were his instructions to his counsel. His counsel was unable to say that he was aware of all the detail, but acknowledged that this summary was consistent with his instructions.
The instructions of the appellant were that he knew a Mr John Engomitis, who had at some stage lived in the same house as the appellant in Adelaide. Engomitis was to obtain possession of vehicles stolen within South Australia. Early in 1994 the appellant was contacted by Engomitis who told the appellant that he had two cars that he was taking to Victoria to sell. It was arranged that Engomitis would drive one car to Melbourne and the appellant would drive the other. Engomitis booked an apartment for them to stay in and paid for it. Together they obtained certificates of roadworthiness for the vehicles from the Victorian Road Transport Authority, and arranged for the registration in the name of John Pengomitis at a Victorian address. Engomitis advertised the vehicles for sale, giving his own mobile telephone number as the contact. A potential purchaser was directed to the apartment, and the appellant, representing himself as John Pengomitis, would negotiate the sale as purported owner of the vehicle. The reason it was done that way was that Engomitis had a driver’s licence in the name of John Pengomitis with the appellant’s photograph on it, and the appellant was told by Engomitis that he had access to a bank account in the name of John Pengomitis. Having negotiated the sale of the vehicles, the appellant’s instructions were that he handed the proceeds of sale to Engomitis who paid him an amount in respect of each sale. Engomitis then paid for the appellant’s return journey to Adelaide and any other incidental expenses.
The appellant’s instructions were that he did not operate the false bank account in the name of John Pengomitis and did not make any deposits to or withdrawals from that account. For the purpose of obtaining the roadworthiness certificate and registration of the vehicles in Victoria, the appellant represented himself to be John Pengomitis. For that he used the photographic driver’s licence and the card for the bank account in the name of Pengomitis, both supplied by Engomitis. He instructed that Engomitis was with him when they went to the Road Transport Authority, that once the inspection had commenced and the inspector became suspicious of the car, that the appellant had a fit and collapsed. Upon regaining consciousness, he became aware that Engomitis had left. When police arrived he told them his name was John Pengomitis because of the information that he had then already passed on to the inspector at the Road Transport Authority.
Whatever deficiencies there may have been in the detail of the instructions taken by the appellant’s counsel, there is no doubt that he was aware that the appellant claimed to have passed the proceeds of sale of the stolen cars to Engomitis and that he denied operating on the account or that Engomitis did so as his agent.
In his opening the prosecutor informed the jury that the combined effect of the evidence proposed to be called would be “to prove that Jack Kyriacou, first of all, created a false identity, namely, that of John Pengomitis; that he obtained a driver’s licence in that name, which was used to open the bank account in that name; and that he used that bank account to deposit the two cheques which are the subject of Counts 1 and 8; and that he withdrew from that account the sum of $500 as alleged in the other counts”. The implication from the opening was that the appellant himself had obtained the driver’s licence and had arranged to open the account, as well as subsequently operating on it, being the offences with which he was charged.
During the course of the prosecution case there was an exchange between the prosecutor and the trial Judge, in the absence of the jury, as to whether the prosecution was able or intended to prove that the appellant did open the account and obtain the temporary replacement driver’s licence. The trial Judge made the suggestion that if that were not the case, the prosecution case appeared to have a weakness, in that it allowed for the possible inference that someone else had opened the bank account and had access to it. The trial Judge warned the prosecutor that if that remained the evidence at the close of the case he might be constrained to direct the jury to acquit the appellant.
Following that exchange, and after the prosecutor had taken instructions over a luncheon adjournment, he informed the jury that it was no part of the prosecution case that the appellant was actually present at the bank on 20 September 1993 when the account was opened in the name of John Pengomitis, nor was it the prosecution case that the appellant was present at the Motor Vehicle Registry when the temporary licence was issued. As a result of a question from the trial Judge, he made it clear to the jury that the prosecution’s position was that somebody, other than the accused, was at the Motor Vehicles Department on that day, and somebody, other than the accused, physically did what was necessary to open the account.
That concession immediately preceded the calling of the last witness for the prosecution, Mr Engomitis. He had not been able to be located until very shortly before the trial. The prosecution had intended to proceed without him, but he was obviously a very important witness. He admitted knowing the appellant but denied ever having been to Victoria. He denied all knowledge of John Pengomitis. He denied any association with the issue of the driver’s licence, or with the bank account, or with the card to operate on it.
He was cross‑examined by the appellant’s counsel, but the crucial part of the appellant’s case which his counsel omitted to put to Engomitis was that which related to the events in Melbourne surrounding the sale of the motor cars and the fact that, according to his instructions, the appellant had handed over the proceeds of sale to Engomitis who then dealt with them. The failure to put those crucial aspects of the appellant’s case meant, of course, that the appellant had failed to comply with the rule in Browne v Dunn (1894) 6 R (HL) 67.
Counsel’s explanation for the failure was that it was a matter which he quite overlooked, and was not aware of his omission until it was pointed out to him following advice taken from other counsel in connection with this appeal.
It must be said that the instructions that counsel had for the purpose of cross‑examining on that fundamental aspect of the appellant’s case were rudimentary in the extreme. He had obtained no detailed instructions as to the events which transpired in Melbourne, which would have been essential to have put to Engomitis, even if Engomitis had continued to deny that he had ever been in Melbourne at the relevant time. It seems that counsel was more intent on cross‑examining Engomitis as to matters which had arisen out of earlier proceedings in Victoria. Furthermore, to use a sporting analogy, he appears to have taken his eye off the ball and to have become overwhelmed by what he perceived to be the trial judge’s reaction to what counsel then considered to be a fundamental flaw in the prosecution case. That was the inability to prove either that the appellant opened the bank account or that he had obtained the false driver’s licence with which to do so. Such was his belief in that weakness that, after Mr Engomitis had completed his evidence and the prosecution case was closed, he made a submission of no case to answer. The trial Judge rejected the submission.
During the course of the evidence of a number of witnesses the appellant wrote notes to his counsel suggesting questions for cross‑examination. He did that also in respect of the witness Engomitis. There was no evidence before this Court to suggest that the appellant, either in writing or verbally, as there was one break in the course of Engomitis’ evidence, asked or reminded his counsel to cross‑examine Engomitis as to the crucial events which occurred in Melbourne. Perhaps that is not surprising, given the witness’s denial that he was ever in Melbourne, and that one would not expect a person in the position of the appellant to know or to understand the subtleties of the rule in Browne v Dunn.
At the close of the prosecution case, notwithstanding the failure of the no case submission, the appellant’s counsel tendered certain advice about the giving of evidence, which is reflected in the written instructions which he then obtained from the appellant. The instructions signed by the appellant were as follows:
“I Jack Kyriacou instruct my counsel ............ not to call evidence in my defence at trial. I know I can given evid. I know I do not have to. I know that if I do, I can be cross-examined. No comment can be made to the jury if I do not give evidence.
I know that if I don’t give evidence I do not get to explain fully how the driver’s licenses bearing my photograph were generated. It is clear from the evid so far that I must have been involved. The documents speak for themselves.
If I don’t give evidence I do not have to explain how I obtained Handicard which operates the acct. I deny operating the acct. I admit being involved in the sale of the cars to Pal & Hansen. I did not deposit or withdraw the proceeds.
I know the Crown concedes I did not open the account or obtain the drivers datacard used to do so. That is the break in the chain of the crown case. That is the basis for the jury to infer that someone else was involved in the creation of the account. The crown has no direct evidence that this was done at my request. That is the basis of the reasonable doubt.” (Emphasis added.)
As the subsequent Weissensteiner direction of the trial Judge clearly demonstrated, the advice that no comment could be made to the jury if the appellant did not give evidence was clearly wrong. The instruction also reflects counsel’s then belief that the concession by the prosecution that the appellant did not open the bank account or obtain the driver’s licence to do so provided the appellant with an almost irrefutable submission that the prosecution had not proved its case beyond reasonable doubt. Why counsel should have formed that belief is difficult to tell, other than perhaps by way of his misplaced reliance on the comments of the trial Judge in the exchange with the prosecutor shortly before the concession was made. As the jury verdict showed, it was not the answer to the prosecution case, particularly when there was a significant body of circumstantial evidence pointing to the appellant, with no evidence from the appellant to suggest that it might be otherwise. It was, of course, possible for the jury to find the appellant guilty of operating the account, even if he was not responsible for or involved in opening the account.
The failure to put the appellant’s case to Engomitis would have caused great difficulty to the appellant if he had given evidence. However, it also meant that the jury was quite unaware of the appellant’s real defence.
The advice that no comment could be made was also plainly wrong. That aspect of the advice was important to the appellant in his decision not to give evidence. He had wanted to testify because he realised that “there were a lot of unexplained questions. Some of them I could have answered, some of them I couldn’t....”. It was not the first time the appellant had had to face the question of giving or not giving evidence as an accused person. Counsel was aware of his desire to give evidence and considered that, but for that aspect of his advice, the appellant would have given evidence. We conclude that if the correct advice had been given, the appellant would have given evidence. His decision not to give evidence had two immediate consequences. First, he lost the only other opportunity he had to put his case to the jury. Secondly, it resulted in the inevitable Weissensteiner direction and the understandable verdict of guilty.
Had the case been properly conducted, there would have been a defence to put to the jury, and at least a possibility that the jury might have accepted that part of the appellant’s evidence that he handed the proceeds of sale of the two vehicles to Engomitis. Had that evidence been accepted by the jury, and assuming that there was no suggestion that Engomitis was acting as the appellant’s agent in banking and withdrawing the money, then there would have been a very real prospect of a verdict of not guilty. The question is whether that conduct of the appellant’s counsel justifies interference by this Court in directing a retrial.
Section 353(1) of the Criminal Law Consolidation Act 1935 (SA) requires that this Court allow an appeal if it thinks that “on any ground there was a miscarriage of justice”. The appellant argues that because of the conduct and advice of his counsel, evidence was not led which should have been led, an unfavourable direction was given to the jury which should not have been given, and that constituted a miscarriage of justice.
It is not every irregularity or failure by defence counsel in the conduct of a trial that will constitute a miscarriage of justice. In R v Birks (1990) 19 NSWLR 677 Gleeson CJ, with whom McInerney J concurred, having conducted a review of a number of cases on the topic, summarised the relevant principle as follows (at 685):
“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 recognised 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.”

We would respectfully agree with and adopt that summary. The question is whether the conduct of this case did constitute a miscarriage of justice which calls for the intervention of this Court.
In Ratten v The Queen (1974) 131 CLR 510 at 516, Barwick CJ, with whom McTiernan, Stephen and Jacobs JJ agreed, defined miscarriage in these terms:
“There is a miscarriage if on the material before the court of criminal appeal, which where no new evidence is produced will consist of the evidence given at the trial, the appellant is shown to be innocent, or if the court is of the opinion that there exists such a doubt as to his guilt that the verdict of guilty should not be allowed to stand. It is the reasonable doubt in the mind of the court which is the operative factor. It is of no practical consequence whether this is expressed as a doubt entertained by the court itself, or as a doubt which the court decides that any reasonable jury ought to entertain. If the court has a doubt, a reasonable jury should be of a like mind....
That is one instance of a miscarriage: another is where the appellant has not had a fair trial.... But it may be that even where there have been irregularities at the trial there may be no miscarriage of justice if the court forms the opinion that no jury of reasonable men, properly instructed and alive to their responsibilities, would fail on the evidence to convict the accused.
There is lastly the situation where the miscarriage is that the jury did not have before it evidence not available to the appellant at the time of his trial which, if believed by the jury, was likely to lead to an acquittal, the jury not being satisfied beyond reasonable doubt of guilt. This may be regarded as an instance in which the accused has not had a fair trial.”
Barwick CJ’s formulation in the first example given has not been adopted in subsequent cases: see the discussion by Gibbs CJ in Gallagher v The Queen (1986) 160 CLR 392 at 398. However, this is not a case of the first type cited by Barwick CJ. The case is not to be judged by the material that was before the Court. The essential argument of the appellant is that he was deprived of an opportunity of putting material critical to his case before the Court. It was material that was available at the time, and its failure to be led was through no fault of his own. Nor is this a usual case of the third type referred to by Barwick CJ, namely an application to receive fresh evidence where it is known with some precision what that evidence is and what its likely effect would have been, if led at the trial of the appellant. The appellant’s argument is that, as a result of the way the case was conducted, there is additional evidence that could have been led, both in cross‑examination of Engomitis and also from the appellant.
It is not possible for this Court to say what the effect of that evidence would be on a jury in what is otherwise a purely circumstantial case against the appellant. It is not possible to say that the evidence, if led, would be likely to result in an acquittal. That might be an appropriate test in some cases of an alleged miscarriage of justice, but as Gibbs CJ observed in Gallagher v The Queen (supra) at 395, the principles extracted from other authorities as to whether a miscarriage of justice has occurred “should not be regarded as absolute or hard and fast rules”. In this case, the effect of the “fresh evidence” which the appellant complains was not put before the jury cannot be determined without hearing the whole case.
Gallagher’s case itself was a case of an alleged miscarriage of justice based on evidence which became available only after the trial. The appellant had been convicted of the murder of a fellow inmate of Parramatta Gaol. After his conviction another inmate allegedly confessed to the murder. That was a confession which, if believed, would almost certainly have resulted in an acquittal. However, there were grave doubts about the authenticity of the confession where there had been a very strong circumstantial case against the appellant. Of the appropriate test to be applied in that case, Gibbs CJ said (at 399):
“It is not enough that there is a bare possibility that a jury might have been influenced by the evidence to return a verdict of not guilty. On the other hand, it is too severe, and indeed speculative, a test, to require that the Court should grant a new trial only if it concludes that the fresh evidence was likely to have produced a different result, in the sense that it would probably have done so. I have had the advantage of reading the reasons for judgment prepared by Mason and Deane JJ. who suggest that the Court of Criminal Appeal will conclude that the unavailability of the fresh evidence at the time of the trial will have involved a miscarriage of justice if the Court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant if the new evidence had been before it at the trial. I am in substantial agreement with this statement. However, I would emphasize that no form of words should be regarded as an incantation that will resolve the difficulties of every case. No test can detract from the force of the fundamental principle that the appeal must be allowed if a miscarriage of justice is shown to have occurred. It is only a practical guide to the application of that principle to say that the court will grant a new trial if, having approached the matter with the caution that is always demanded when fresh evidence is produced in a criminal case, and having weighed the credibility of the fresh evidence and considered its cogency in the light of the evidence given at the trial, it considers that a jury might reasonably have reached a different verdict if the evidence had been available at the trial.”
In that case, an assessment of the cogency of the fresh evidence had been made by the New South Wales Court of Criminal Appeal. The majority considered the fresh evidence to be unreliable. The High Court held that the majority was justified in that view.
There has been some discussion as to whether Brennan J in that case expressed a different view from that adopted by Gibbs CJ, Mason and Deane JJ and, it would seem, Dawson J (at 421): see the judgment of Doyle CJ in R v Reci (1997) 70 SASR 78 at 93 ‑ 94. In that case the Court proceeded “on the basis that the court is required to consider the impact of the evidence upon the jury at the trial, had it been given, although to do so the court must make a limited assessment of the credibility of the evidence, in the sense explained by Toohey J and Gaudron J” in Gallagher. That was that it should be credible in the sense that a reasonable jury could accept it as true, but it is not necessary that the Court should think it likely that a reasonable jury would believe it.
In this case, it is not the function of this Court to assess the credit or cogency of the appellant’s evidence as to whether it is inherently plausible. If this Court were to do that, it would have to do the same about Mr Engomitis’ evidence - an impossible task.
The real complaint of the present appellant is that he was denied an opportunity of putting a defence which was open to him, namely that, although he participated in the disposal of stolen cars and received the proceeds of sale, he had nothing to do with the banking of the proceeds or with their subsequent withdrawal. It cannot be said that that was a fanciful defence or that it lacked substance. It cannot be said that no credible evidence could have been called to support it. It is a defence which, in the circumstances, is capable of acceptance by a jury, notwithstanding the existence of the circumstantial evidence which pointed to the appellant as operating the account under a false name.
Therefore, in the circumstances of this case, this Court is relieved of having to make any assessment of the evidence by which the defence might be advanced. It is sufficient to say that it was a defence that was open to the appellant. It required that the case be put to material prosecution witnesses, such as Engomitis, and that evidence be led from the appellant. It was a defence which could have resulted in the jury, acting reasonably, returning a verdict of not guilty of the offences charged.
We think that the appropriate test to be applied in these circumstances is that applied by Gibbs CJ, Mason and Deane JJ in Gallagher and by Mason CJ in Mickelberg, namely whether there is a significant possibility that a jury, acting reasonably, would have acquitted the appellant had it not been for the fact that, by reason of the conduct of his counsel, material essential to the appellant’s defence was not put before the jury.
We have said enough to indicate that, in our view, material essential to the appellant’s defence was not put to the jury. There was nothing before the jury to indicate what his defence was. The failure to put the case to Engomitis and the failure of the appellant to give evidence resulted from both the neglect and the misleading advice of the appellant’s counsel.
Mr Barnett, for the respondent, argued that the appellant declined to give evidence because he perceived that it was in his best interest not to give evidence. Had he given evidence he would have to have explained how the driver’s licence bearing his photograph was generated and how it was that he had possession of the card necessary to operate on the account through an ATM. That may be so, but the appellant claims to have an explanation for those events, and was anxious to put his story before the jury. We have already found that he would have done so if he had been correctly advised.
Mr Barnett also argued that given the state of the trial and the state of the evidence, the advice not to give evidence was nevertheless sound advice because the appellant would otherwise have been exposed on other issues. We cannot agree with that submission. It was advice that was wrong in law and which was tactically inexplicable, other than by reference to a misplaced reliance on a comment by the trial Judge during the prosecution case. The acceptance of the advice compounded the effect of the failure to put the appellant’s case to the principal witness for the prosecution. The result was that the jury did not at any stage hear of the essential elements of the appellant’s defence, thus depriving him of a chance of acquittal.
Mr Barnett further argued that if the appellant had given evidence it would have opened up the possibility of his being convicted as an accomplice to Engomitis in the commission of these offences. Whilst that is a theoretical possibility, depending on how the evidence were to unfold, it is by no means a likely outcome consistent with the instructions of the appellant. We conclude that the appellant was deprived of a significant possibility of an acquittal by reason of the conduct and advice of his counsel.
As was firmly pointed out by the Court of Appeal of New South Wales in R v Birks (supra), it is not every tactical blunder made by defence counsel that will justify a retrial. What in fact justified a retrial in that case was a failure to comply with the rule in Browne v Dunn on a central issue in the defence case, coupled with a failure to exercise any possible damage control as a result in the course of presenting the defence case. It was a combination of circumstances which together resulted in a miscarriage of justice.
In this case there was a compounding effect of four factors which caused the miscarriage we have identified. There was the failure to obtain proper detailed instructions in elaboration of the appellant’s defence, the failure to put those key elements to a crucial prosecution witness, the plainly wrong advice given as to the effect of the appellant’s declining to give evidence and the appellant, not unreasonably, acting on that advice. We would not want it to be thought that any one of those factors by themselves would necessarily have been sufficient to justify a retrial. Many an omission and many a tactical decision made and much advice given in the course of a trial might be considered in retrospect to have been better for the accused if done differently, possibly even resulting in an acquittal. But it will not follow that a miscarriage of justice has occurred. In the present case, however, the conduct of the appellant’s counsel was such as to deprive the appellant of his right to have the essential aspects of his defence considered by the jury.
There was, in this case, a miscarriage of justice. The appeal must be allowed and a retrial must be ordered.

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Legal Principle Established