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R v Szabo

R v Szabo

Case [2000] QCA 194 26 May 2000

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SUPREME COURT OF QUEENSLAND

CITATION: R v Szabo [2000] QCA 194

PARTIES: R
v
SZABO, Michael Carl
(appellant)

FILE NO/S: CA No 222 of 1999
DC No 4 of 1999

DIVISION: Court of Appeal

PROCEEDING: Appeal against conviction

ORIGINATING COURT:
District Court at Bowen

DELIVERED ON: 26 May 2000

DELIVERED AT: Brisbane

HEARING DATE: 8 February 2000, 11 April 2000

JUDGES: de Jersey CJ, Davies and Thomas JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER: Appeal allowed; convictions set aside and re-trial ordered

CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – CONDUCT OF LEGAL PRACTITIONERS – conduct of defence counsel at trial – accused advised not to give evidence – nature of duty – whether flagrant incompetence shown

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – GENERALLY – defence counsel in interrupted phase of de facto relationship with Crown prosecutor – duty of disclosure – whether appellant entitled to hold reasonable apprehension that he was deprived of independent legal advice – whether miscarriage of justice under s 668E(1) – propriety of counsel in relationship with one another acting as adversaries – test to be applied "whether, with knowledge of all relevant circumstances, an ordinary fair-minded citizen in the position of the appellant would entertain a reasonable suspicion that justice had miscarried" – importance of disclosure

PROFESSIONS AND TRADES – LAWYERS – COUNSEL AND CLIENT

Criminal Code (Qld) s 668E

Boehringer Ingelheim Pty Ltd v Reddrop (1984) 2 NSWLR 13, considered
Carruthers v Connolly [1998] 1 Ad R 339, considered
Dovade Pty Ltd v Westpac Banking Group (1999) 46 NSWLR 168, considered
Hayley v Hon. Boles 824 SW 2d 796 (Tx Ct App 1992)
Livesey v NSW Bar Association (1983) 151 CLR 288, considered
McPherson v McPherson [1936] AC 177, considered
R v Batt, Court of Appeal (Criminal Division), The Times, 30 May 1996, distinguished
R v Birks (1990) 19 NSWLR 677, considered
R v Cooper [1969] 1 QB 267, considered
R v Hamilton (1930) 30 SRNSW 277, considered
R v Kerr (No 2) [1951] VLR 239, considered
R v Paddon [1999] 2 Qd R 387, considered
R v Racz [1960] NZLR 227, considered
R v Sussex Justices ex parte McCarthy [1924] 1 KB 256, considered
Ratten v R (1974) 131 CLR 510, considered
Sankar v State of Trinidad and Tobago [1995] 1 WLR 144, distinguished
Scott v Scott [1913] AC 417, considered
Waterhouse v Bell (1991) 25 NSWLR 99, considered
Webb v R (1994) 181 CLR 41, considered
Whitehorn v R (1983) 152 CLR 657, considered
Winston Smith (1975) 61 Cr App R 128, considered

COUNSEL: P H Godsall for the appellant
M J Byrne QC and J D Henry for the respondent

SOLICITORS: A Murray & Co…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Szabo

Details

AGLC: R v Szabo [2000] QCA 194
Case: [2000] QCA 194
Decision Date: 26 May 2000

CaseChat Overview and Summary

The case of R v Szabo involved an appeal against the appellant's conviction. The appellant had been convicted of various criminal offences and was appealing on the grounds of the conduct of his legal counsel during the trial. The central issue in this appeal was whether the appellant's defence counsel had acted with such incompetence as to constitute a miscarriage of justice. The appeal also questioned whether the appellant had been deprived of independent legal advice due to a relationship between his counsel and the prosecutor. The High Court of Australia was tasked with deciding these issues.

The court considered the nature of the duty owed by defence counsel to their client and whether the conduct of the appellant's counsel amounted to flagrant incompetence. The court also examined the relationship between the defence counsel and the prosecutor, and the implications of this relationship for the appellant's entitlement to independent legal advice. The court applied the test for a miscarriage of justice as set out in section 668E(1) of the Criminal Procedure Act, focusing on whether an ordinary fair-minded citizen would entertain a reasonable suspicion that justice had miscarried. The court determined that the relationship between the counsel and the prosecutor, along with the failure to disclose this relationship to the appellant, had a significant impact on the fairness of the trial.

The court found that the conduct of the defence counsel was indeed so incompetent as to warrant a new trial. The relationship between the defence counsel and the prosecutor, and the failure to disclose this relationship to the appellant, led to a reasonable apprehension that the appellant had not received independent legal advice. This apprehension was sufficient to constitute a miscarriage of justice under section 668E(1) of the Criminal Procedure Act. Consequently, the court allowed the appeal, set aside the convictions, and ordered a re-trial.

Orders

Orders of the court

Appeal allowed; convictions set aside and re-trial ordered

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Szabo [2000] QCA 194

Most Recent Citation

Madafferi v The Queen [2021] VSCA 1

Cases citing this decision · 15 of 15 shown

R v VN
[2023] QCA 184

…C [2023] QCA 128 , cited R v Skondin [2015] QCA 138 , cited R v Spina [2012] QCA 179 , cited R v Szabo [2001] 2 Qd R 214; [2000] QCA 194 , cited Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35, cited Rodi v Western Australia (2018) 265 CLR 254; [2018] HCA 44, cited TKWJ v The Queen (2002) 212 CLR 124; [2002]…
Madafferi v The King
[2023] VSCA 178 Para 5

…ice had miscarried. [13] Jean Ross (a pseudonym) v The Chief Commissioner of Police and the Chief Examiner [2014] VSCA 254 (‘ Jean Ross ’). [14][2000] QCA 194.…
Madafferi v The Queen
[2021] VSCA 332 Para 1

…cant with knowledge of all relevant circumstances would entertain a reasonable suspicion that justice has miscarried. [4][2001] 2 Qd R 214; [2000] QCA 194 (de Jersey CJ, Davies and Thomas JJA) (‘ Szabo ’).…
R v HCF
[2021] QCA 189 Para 26

…use Juror X displayed attitudes that were not against the interests of the appellant, such a conclusion could not be reached. [8][2001] 2 Qd R 214; [2000] QCA 194, at [52]-[53] and [56].…
Madafferi v The Queen
[2021] VSCA 1 Para 1

…rence to lines of authority concerning abuse of process and the perception of a miscarriage of justice.[39] [39]See, eg, R v Szabo [2001] 2 Qd R 214; [2000] QCA 194; Zai v Western Australia (2007) 34 WAR 379; [2007] WASCA 150; R v Smith (1975) 61 Cr App R 128; Strickland v CDPP & ACIC (2018) 266 CLR 325; [2018] H…
O'Malley v Shire of Northam
[2020] WASC 429 Para 9

…ces, one immediately has to consider whether it is proper for persons in particular relationships to act for contrary interests. [15] R v Szabo [2000] QCA 194; [2001] 2 Qd R 214. [16] R v Szabo [2000] QCA 194; [2001] 2 Qd R 214 [59] ‑ [61].…
Jeffery v The State of Western Australia
[2018] WASCA 219 Para 10

…cient to mention the main points that should guide the particular decision. It is then for the client to accept or reject the advice. [265] R v Szabo [2000] QCA 194; [2001] 2 Qd R 214 [40].…
White v The Queen
[2018] NSWCCA 1 Para 69

…vidence must be that of the accused himself or herself after having received proper and appropriate advice from counsel: R v Smith at [47]; R v Szabo [2000] QCA 194; (2000) 112 A Crim R 215 at [40]; MB v R [2009] NSWCCA 200 at [35]-[39]. The matter is reinforced by r 37 of the Legal Profession Uniform Conduct (Ba…
R v Pham
[2017] QCA 43

…263; [2009] QCA 57, considered R v Szabo [2001] 2 Qd R 214; [2000] QCA 194, distinguished R v Tran [2017] QCA 31, related COUNSEL: K A Mackenzie ( sol ) for the appellant G R Rice QC, with T Ryan, for the respondent SOLICITORS: Mackenzie Mitchell for the appellant Director of Public Prosecutions (Commonwealth) fo…
R v Hamade
[2011] QCA 152 Para 1

…relevant circumstances would have at least a lingering suspicion that the appellant did not have the benefit of fair play."[10] [9][2001] 2 Qd R 214; [2000] QCA 194. [10]Above, 233-234.…
MB v R
[2009] NSWCCA 200

…l (NSW), 17 July 1990, unreported R v Muratovic [1967] Qd R 15 R v Strang, Court of Criminal Appeal (NSW), 10 December 1990, unreported R v Szabo [2000] QCA 194; (2000) 112 A Crim R 215 Zecevic v DPP (Vic) (1987) 162 CLR 645 PARTIES: MB (Appellant) Regina (Respondent) FILE NUMBER(S): CCA 2005/ 3317 COUNSEL: S Tor…
R v Phillips
[2009] QCA 57

…2005] QCA 468, distinguished R v R [1998] QCA 83, considered R v Szabo [2001] 2 Qd R 214; [2000] QCA 194, considered Webb v The Queen (1994) 181 CLR 41; [1994] HCA 30, considered COUNSEL: P E Smith for the appellant M J Copley SC for the respondent SOLICITORS: Bernard Bradley & Associates for the appellant Direct…
Ismail-Zai v The State of Western Australia
[2007] WASCA 150 Para 5

…public and having knowledge of all relevant circumstances, should have entertained any reasonable suspicion that justice had miscarried: R v Szabo [2000] QCA 194; [2001] 2 Qd R 214 at [6], [9] per de Jersey CJ, at [15] ‑ [16] per Davies JA, at [60] per Thomas JA. There is nothing that should have led such a pers…
Williams v The Queen
[2005] NZCA 315

…osecutor and his counsel this is absolutely denied by both counsel in their affidavit evidence. [75] Mr King relied upon the dicta in R v Szabo [2000] QCA 194 where it was said that non-disclosure of a relationship between prosecutor and defence counsel was such that it could engender reasonable suspicion or appr…
R v ADW
[2002] SASC 331 Para 35

…In Szabo [2000] QCA 194; (2000) 112 A Crim R 215 the defence counsel and the Crown Prosecutor had lived in a de facto relationship until about three months before the trial in question, occupied the same motel room shortly after the trial, and resumed their relationship some three months later. The accused was no…

View all 15 citing cases →

Cases cited in this decision · 27 of 27 shown

Dovade Pty Ltd v Westpac Banking Group
[1999] NSWCA 113

…gelheim Pty Ltd v Reddrop (1984) 2 NSWLR 13, considered Carruthers v Connolly [1998] 1 Ad R 339, considered Dovade Pty Ltd v Westpac Banking Group (1999) 46 NSWLR 168, considered Hayley v Hon. Boles 824 SW 2d 796 (Tx Ct App 1992) Livesey v NSW Bar Association (1983) 151 CLR 288, considered McPherson v McPherson [1936] AC 177, considered R v Ba…
Farrell v The Queen
[1998] HCA 50 Para 1

…1974) 131 CLR 510; Morris v R (1987) 163 CLR 454; M v R (1994) 181 CLR 487. [15] Morris above; M v R above; Gipp (1998) 72 ALJR 1012 par 167; Farrell (1998) 72 ALJR 1292.…
Webb v the Queen
[1994] HCA 30 Para 1

…y acted with that fearless independence. That is the test, transposed by analogy from that applicable to apprehended judicial or jury bias ( Webb v R (1994) 181 CLR 41), and not the less strict “real likelihood of bias” test favoured in that area in England ( R v Gough [1993] AC 646, 670). In this case there plainly…
M v the Queen
[1994] HCA 63 Para 1

…is that there is a perceived rather than an actual miscarriage of justice. [14]Eg Ratten v R (1974) 131 CLR 510; Morris v R (1987) 163 CLR 454; M v R (1994) 181 CLR 487. [15] Morris above; M v R above; Gipp (1998) 72 ALJR 1012 par 167; Farrell (1998) 72 ALJR 1292.…
Ainsworth v Criminal Justice Commission
[1992] HCA 10

…RL ex parte CJL (1986) 161 CLR 342, 352; Re Polites ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78, 85; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 .…
Re Polites; Ex parte Hoyts Corporation Pty Ltd
[1991] HCA 25

…[9] Livesey v NSW Bar Association (1983) 151 CLR 288, 293; Re JRL ex parte CJL (1986) 161 CLR 342, 352; Re Polites ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78, 85; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 .…
Australian Iron & Steel Pty Ltd v Banovic
[1989] HCA 56 Para 1

…tence of such relationships as a ground for discrimination against such persons[35]. [31]Cf. Anti-Discrimination Act 1991. [32](1984) 2 NSWLR 13. [33](1991) 25 NSWLR 99. [34] Waterhouse v Bell above; compare Kaycliff Pty Ltd & Ors v ABT & Anor (1989) 90 ALR 310 where the chairperson of a tribunal was held not to be d…
Kaycliff Pty Ltd v Australian Broadcasting Tribunal
[1989] FCA 685 Para 1

…nti-Discrimination Act 1991. [32](1984) 2 NSWLR 13. [33](1991) 25 NSWLR 99. [34] Waterhouse v Bell above; compare Kaycliff Pty Ltd & Ors v ABT & Anor (1989) 90 ALR 310 where the chairperson of a tribunal was held not to be disqualified for apparent bias based on certain partisan statements made by her husband. [35]C…
Morris v the Queen
[1987] HCA 50 Para 1

…on analysis the complaint is that there is a perceived rather than an actual miscarriage of justice. [14]Eg Ratten v R (1974) 131 CLR 510; Morris v R (1987) 163 CLR 454; M v R (1994) 181 CLR 487. [15] Morris above; M v R above; Gipp (1998) 72 ALJR 1012 par 167; Farrell (1998) 72 ALJR 1292.…
Re JRL; Ex parte CJL
[1986] HCA 39

…[9] Livesey v NSW Bar Association (1983) 151 CLR 288, 293; Re JRL ex parte CJL (1986) 161 CLR 342, 352; Re Polites ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78, 85; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 .…
Whitehorn v the Queen
[1983] HCA 42 Para 1

…concludes that it would be unsafe, unjust or dangerous to allow a verdict of guilty to stand". [16]Section 668E. [17]Above at 525. [18] Whitehorn v R (1983) 152 CLR 657.…
Livesey v New South Wales Bar Association
[1983] HCA 17 Para 1

…relationship not existed, the trial would have been conducted differently by the appellant's counsel. [1]Cf Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 294 – 295; Webb v R (1994) 181 CLR 41 at 53.…
Ratten v The Queen
[1974] HCA 35 Para 1

…iscarriage of justice. Indeed, on analysis the complaint is that there is a perceived rather than an actual miscarriage of justice. [14]Eg Ratten v R (1974) 131 CLR 510; Morris v R (1987) 163 CLR 454; M v R (1994) 181 CLR 487. [15] Morris above; M v R above; Gipp (1998) 72 ALJR 1012 par 167; Farrell (1998) 72 ALJR 12…
Gipp v the Queen
[1998] HCA 21 Para 1

…riage of justice. [14]Eg Ratten v R (1974) 131 CLR 510; Morris v R (1987) 163 CLR 454; M v R (1994) 181 CLR 487. [15] Morris above; M v R above; Gipp (1998) 72 ALJR 1012 par 167; Farrell (1998) 72 ALJR 1292.…
[1987] AC 128
[1987] AC 128 Para 1

…Cr App R 218; Davis (1960) 44 Cr App R 235; Ion (1951) 34 Cr App R 152; cf R v Crowe [1985] 2 Qd R 389. [25]Cf R v Chaouk [1986] VR 707; R v Spencer [1987] AC 128, 144, 146.…
[1913] AC 417
[1913] AC 417 Para 1

…n as revealing legal error. [26] McPherson v McPherson [1936] AC 177; R v Kerr (No 2) [1951] VLR 239; R v Hamilton (1930) 30 SRNSW 277; Scott v Scott [1913] AC 417.…
[1924] 1 KB 256
[1924] 1 KB 256 Para 1

…omatic stipulation that justice must be seen to be done, as well as done, or as it was put by Lord Hewart CJ in R v Sussex Justices ex parte McCarthy [1924] 1 KB 256, 259, “ manifestly and undoubtedly be seen to be done”, in my view compels our taking the course of overturning this conviction and, inconvenient tho…
[1929] 2 KB 1
[1929] 2 KB 1 Para 1

…of misunderstanding between bar and bench), but one which usefully points up the role of counsel, Sankey LJ said in Hobbs v Tinling & Company Limited [1929] 2 KB 1, 48:…
[1995] 1 WLR 194
[1995] 1 WLR 194 Para 1

…d to be convicted; and thirdly the story which Sankar wished to tell did not contain the self-convicting quality of the present appellant's story. [8][1995] 1 WLR 194.…
[1985] 1 NZLR 106
[1985] 1 NZLR 106

…[5] Sankar v State of Trinidad and Tobago [1995] 1 WLR 194; R v McLoughlin [1985] 1 NZLR 106, 107.…
[1993] AC 646
[1993] AC 646 Para 1

…l or jury bias ( Webb v R (1994) 181 CLR 41), and not the less strict “real likelihood of bias” test favoured in that area in England ( R v Gough [1993] AC 646, 670). In this case there plainly was no “real likelihood” that defence counsel did not properly defend his client. But notwithstanding the apparently ro…
[1936] AC 177
[1936] AC 177 Para 1

…dings as void, others as involving a question of degree, and others as treating such an occasion as revealing legal error. [26] McPherson v McPherson [1936] AC 177; R v Kerr (No 2) [1951] VLR 239; R v Hamilton (1930) 30 SRNSW 277; Scott v Scott [1913] AC 417.…
D & J Constructions Pty Ltd v Head
67 ER 242 Para 1

…A different situation confronted Bryson J in D and J Constructions Pty Ltd v Head (1987) 9 NSWLR 118, that of a solicitor’s acting against a former client who had previously communicated confidential information to the solicitor. What is nevertheless useful for present purposes is His Honour’s reference to the appearance of the matter, as it…
[1969] 1 QB 267
[1969] 1 QB 267 Para 1

…appeal are, they do not under Australian legislation empower a court to set aside a verdict upon a speculative or intuitive basis. [19]Eg R v Cooper [1969] 1 QB 267; (1969) 53 Cr App R 82. [20] Whitehorn v R (1983) 152 CLR 657.…
[1947] 1 KB 321
[1947] 1 KB 321

…[23] R v Racz [1960] NZLR 227; cf R v Justices of Bodmin ex parte McEwan [1947] 1 KB 321, 325.…
[1960] NZLR 227
[1960] NZLR 227

…77, considered R v Kerr (No 2) [1951] VLR 239, considered R v Paddon [1999] 2 Qd R 387, considered R v Racz [1960] NZLR 227, considered R v Sussex Justices ex parte McCarthy [1924] 1 KB 256, considered Ratten v R (1974) 131 CLR 510, considered Sankar v State of Trinidad and Tobago [1995] 1 WLR 144, distinguished S…
[1995] 1 WLR 144
[1995] 1 WLR 144

…[1924] 1 KB 256, considered Ratten v R (1974) 131 CLR 510, considered Sankar v State of Trinidad and Tobago [1995] 1 WLR 144, distinguished Scott v Scott [1913] AC 417, considered Waterhouse v Bell (1991) 25 NSWLR 99, considered Webb v R (1994) 181 CLR 41, considered Whitehorn v R (1983) 152 CLR 657, considered Win…

Legislation cited in this decision · 1

Anti-Discrimination Act 1991 (Qld)
1 mention (from Para 1)

CITATION:	R v Szabo [2000] QCA 194
PARTIES:	R v SZABO, Michael Carl (appellant)
FILE NO/S:	CA No 222 of 1999 DC No 4 of 1999
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against conviction
ORIGINATING COURT:	District Court at Bowen
DELIVERED ON:	26 May 2000
DELIVERED AT:	Brisbane
HEARING DATE:	8 February 2000, 11 April 2000
JUDGES:	de Jersey CJ, Davies and Thomas JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	Appeal allowed; convictions set aside and re-trial ordered
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – CONDUCT OF LEGAL PRACTITIONERS – conduct of defence counsel at trial – accused advised not to give evidence – nature of duty – whether flagrant incompetence shown CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – GENERALLY – defence counsel in interrupted phase of de facto relationship with Crown prosecutor – duty of disclosure – whether appellant entitled to hold reasonable apprehension that he was deprived of independent legal advice – whether miscarriage of justice under s 668E(1) – propriety of counsel in relationship with one another acting as adversaries – test to be applied "whether, with knowledge of all relevant circumstances, an ordinary fair-minded citizen in the position of the appellant would entertain a reasonable suspicion that justice had miscarried" – importance of disclosure PROFESSIONS AND TRADES – LAWYERS – COUNSEL AND CLIENT Criminal Code (Qld) s 668E Boehringer Ingelheim Pty Ltd v Reddrop (1984) 2 NSWLR 13, considered Carruthers v Connolly [1998] 1 Ad R 339, considered Dovade Pty Ltd v Westpac Banking Group (1999) 46 NSWLR 168, considered Hayley v Hon. Boles 824 SW 2d 796 (Tx Ct App 1992) Livesey v NSW Bar Association (1983) 151 CLR 288, considered McPherson v McPherson [1936] AC 177, considered R v Batt, Court of Appeal (Criminal Division), The Times, 30 May 1996, distinguished R v Birks (1990) 19 NSWLR 677, considered R v Cooper [1969] 1 QB 267, considered R v Hamilton (1930) 30 SRNSW 277, considered R v Kerr (No 2) [1951] VLR 239, considered R v Paddon [1999] 2 Qd R 387, considered R v Racz [1960] NZLR 227, considered R v Sussex Justices ex parte McCarthy [1924] 1 KB 256, considered Ratten v R (1974) 131 CLR 510, considered Sankar v State of Trinidad and Tobago [1995] 1 WLR 144, distinguished Scott v Scott [1913] AC 417, considered Waterhouse v Bell (1991) 25 NSWLR 99, considered Webb v R (1994) 181 CLR 41, considered Whitehorn v R (1983) 152 CLR 657, considered Winston Smith (1975) 61 Cr App R 128, considered
COUNSEL:	P H Godsall for the appellant M J Byrne QC and J D Henry for the respondent
SOLICITORS:	A Murray & Co…