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 1999DIVISION: 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 madeORDER: 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, consideredCOUNSEL: P H Godsall for the appellant
M J Byrne QC and J D Henry for the respondentSOLICITORS: A Murray & Co…
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- R v Szabo [2000] QCA 194
- Case
- [2000] QCA 194
- Decision Date
CaseChat Overview and Summary
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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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