Ali v The Queen [2005] HCA 8

The Appellant Raymond Akhtar Ali was convicted after a trial before Wilson J of the murder of his infant child as well as improperly interfering with a corpse and concealing the birth of a child. The co-accused, Amanda Blackwell, was the mother of the child and had been in a clandestine sexual relationship with the Appellant. The appellant and the co-accused each ran cut-throat defences. Blackwell was convicted of manslaughter and concealing the birth of a child following the same trial.

The evidence

The evidence against the Appellant included the following:

→ The evidence of the co-accused.
→ He was shown to have told many material lies to police, included his denial of any knowledge that Blackwell was pregnant, denial of any sexual relationship with Blackwell, denial of experience in removing sexual organs of goats, denial of slaughtering goats, and a false explanation for his presence on a neighbour’s property where the body was found.
→ He had a strong motive to conceal the birth because he was a married man.
→ the appellant was a butcher, experienced in the removal of sexual organs from goats, and the child’s body had been skilfully dismembered with the sexual organs neatly removed.
→ only the appellant and the co-accused could have dismembered the child’s body, and the co-accused gave birth in circumstances that left her weak and distressed. The objective probabilities made it very likely that it was the appellant who dismembered the body.

Evidence adduced by Blackwell’s counsel tended to show that Blackwell was scared of and dominated by the appellant, that the appellant had not only had a long established sexual relationship with her but had prostituted her for his own gain and gratification, and that the appellant had been violent towards her and others.

An appeal to the Queensland Court of Criminal Appeal on the ground of alleged unreasonableness of the verdicts and errors in the trial judge’s summing up was dismissed.

Special leave

The Appellant sought and was granted special leave to appeal to the High Court of Australia on the ground that there had been a miscarriage of justice in that he was not tried fairly because of the incompetence of his trial counsel.

The appellant’s complaints of his trial counsel were that:

→ trial counsel should have but failed to invite the jury to consider an alternative hypothesis, consistent with innocence of murder, namely that the appellant “had nothing to do with the death of the child but may have been involved with hiding the corpse”.
→ evidence which was prejudicial to him was admitted at trial without objection.
→ trial counsel should have but failed to seek separate trials.

s 668E of the Criminal Code (Qld) relevantly provides that:

“(1) The Court on any such appeal against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or can not be supported having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal.”

“(1A) However, the Court may, notwithstanding that it is of the opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.

“(2) Subject to the special provisions of this chapter, the Court shall, if it allows an appeal against conviction, quash the conviction and direct a judgment and verdict of acquittal to be entered.”

In R v Birks (1990) 19 NSWLR 677 (at 683 and 685) the New South Wales Court of Criminal Appeal held that “a party is bound by the conduct of his or her counsel, and counsel have a wide discretion as to the manner in which proceedings are conducted”, however, in that case, it was decided that counsel’s conduct in failing to cross-examine the complainant on a material matter in accordance with his instructions and failing to take steps to minimise the damage flowing from that failure constituted “flagrant incompetence” and had brought about a miscarriage of justice.

In TKWJ v The Queen [2002] HCA 46, the High Court emphasised that ordinarily, decisions made by Counsel are within their discretion and cannot be shown to have made a trial unfair. It was held that no miscarriage of justice arose from Counsel’s failure to make an application for a ruling with respect to evidence of the appellant’s character.

In that case, McHugh J held that “[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”.

Gaudron J held that:

“[W]hether there has been a miscarriage of justice is usually answered by asking whether the act or omission in question ‘deprived the accused of a chance of acquittal that was fairly open’. The word ‘fairly’ should not be overlooked. A decision to take or refrain from taking a particular course which is explicable on the basis that it has or could have led to a forensic advantage may well have the consequence that a chance of acquittal that might otherwise have been open was not, in the circumstances, fairly open. One matter should be noted with respect to the question whether counsel’s conduct is explicable on the basis that it resulted or could have resulted in a forensic advantage. That is an objective test.”

Gleeson CJ

Gleeson CJ held that the alternative hypothesis lacked forensic appeal because it was contrary to everything the appellant had previously said and to the principal line of defence pursued at trial. It was also unsupported by any evidence and could well have been regarded as utterly fanciful. Gleeson CJ noted that the alternative hypothesis would have required that it be put in cross-examination to the co-accused, and in address and would presumably have been to the effect that the child was murdered by the co accused but that the appellant, who happened to be present, although not being implicated in the death of the child, took the body away, butchered it, and buried it.

Gleeson CJ observed that if such an argument had been advanced, the reaction of the jury might well have been derision. Gleeson CJ held that:

“It is not a mark of competent advocacy to pursue at trial every line of argument that can be imagined, regardless of its consistency with other arguments, and regardless of its prospects of success. On the contrary, such an approach is the hallmark of incompetence.”

With respect to the prejudicial evidence which was admitted at trial without objection, Gleeson CJ agreed with the reasons of Callinan and Heydon JJ that most of the evidence was admissible, and noted that the trial judge directed the jury as to the use they could make of that evidence.”

Furthermore, Gleeson CJ held that:

“ordinary standards of professional competence do not require trial counsel to object to every piece of evidence that is arguably inadmissible, especially in front of a jury.

With respect to the argument trial counsel should have but failed to seek separate trials, Gleeson CJ agreed with the reasons of Callinan and Heydon JJ that a joint trial was almost inevitable and noted that the significant tactical benefit of ensuring the jury learning that the co-accused, in her original interviews with police, had accepted full responsibility herself, and had exonerated the appellant. The trial judge had directed the jury as to the use they could make of the evidence.

Gleeson CJ said the appeal should be dismissed, and held that:

“It is not to the point for the appellant to show that in certain respects the trial might have been conducted differently, or that in certain respects it might have been conducted more skilfully. Nor is it sufficient to show that some inadmissible evidence was received. Notwithstanding that her previous inconsistent stories made her evidence vulnerable to attack, the jury found the co accused to be a convincing witness. (That is reflected in her conviction of manslaughter rather than murder.) There was, in addition, a strong circumstantial case against the appellant. He said nothing at trial, either to contradict the co accused, or to explain away the damaging circumstances. Those are the reasons why he was convicted. The attempt to blame his counsel is misdirected.

Hayne J

Hayne J rejected the premise that the determinative question was whether trial counsel had been flagrantly incompetent. Such a premise suffered from at least two difficulties: the evident difficulty in giving content to the pejorative expression “flagrantly incompetent” and framing the issue that way diverts attention from the question presented by s 668E of the Criminal Code (Q), namely, whether the Court of Appeal should have found “that on any ground whatsoever there was a miscarriage of justice”.

Hayne J agreed with McHugh J that the critical issue “is not whether counsel erred in some way but whether a miscarriage of justice has occurred”, and held that “conduct of counsel remains relevant as an intermediate or subsidiary issue”.

With respect to the prejudicial evidence of bad character which was admitted at trial without objection, Hayne J held that:

“Showing that objection could have been taken to some questions that were asked by other counsel during the course of a trial does not show that trial counsel was incompetent or show that there has been a miscarriage of justice. Counsel is not bound to take every objection that is open. Objecting to the form in which evidence is led, or objecting to evidence on a subject about which other evidence has been or is to be heard, may convey an impression of obstructionism detrimental to the interests of the party for whom counsel is appearing. Demonstrating that counsel could have objected to certain evidence does not demonstrate that counsel should have made that objection.”

Hayne J noted that “all of this evidence was relevant for purposes other than demonstrating that the appellant was a man of bad character.” Hayne J also said that “The reception of this evidence made no significant addition to the evidence the jury heard.”

With respect to the argument trial counsel should have sought separate trials, Hayne J agreed with the reasons of Callinan and Heydon JJ that such an application, if made, would have failed.

Hayne J observed that appellate Courts cannot know what trial counsel knew, and that appellate Courts examine the case with the benefit of hindsight.

Hayne J held the appeal should be dismissed.

McHugh J held the appeal should be dismissed for the reasons given by Hayne J.

Callinan J and Heydon J

Callinan J and Heydon J summarised the facts in detail.

Callinan J and Heydon J held that “Any application for a separate trial would have been doomed to failure” for the following reasons:

→ The events leading up to the murder and dismemberment of the infant, and the guilt or innocence of the appellant and the co-accused, were closely interconnected.
→ Their relationship, their similar motives, their almost equal opportunity to commit the crimes, and their capacity, either separately or jointly to commit them, all argued very strongly in favour of a joint trial.
→ There were no special or other features of the case requiring that they be tried separately.
→ That one might seek to incriminate the other, as each accused here did, could provide no justification for a direction that the appellant and his co-accused be tried separately
→ A joint trial of the appellant and the co-accused served to give the jury the means of obtaining a conspectus of the respective roles of each of them in the crimes with which they were charged.

Callinan J and Heydon J also rejected the argument that trial counsel failed to object to evidence of what the co-accused said about him out of court, holding that such evidence was admissible against the co-accused, and noting that Wilson J had instructed the jury on 6 occasions that such statements were not admissible against him.

Callinan J and Heydon J also concluded that “the trial was long and difficult”, the case “against the appellant was very strong” , and that counsel’s errors “were not egregious ones”. For these reasons, “The appellant has not demonstrated that any conduct on the part of his counsel at the trial deprived him of a fair chance of acquittal”.

Callinan J and Heydon J therefore said the appeal should be dismissed.

As Kirby J noted in Nudd v R [2006] HCA 9, this is one of a trilogy of cases in the 2000s which concern “the principles of law governing the provision of relief against conviction for a criminal offence where the matter of complaint is incompetence on the part of the legal representatives who appeared for the accused at the trial”. The cases of the trilogy are TKWJ v The Queen [2002] HCA 46, Ali v The Queen [2005] HCA 8 and Nudd v R [2006] HCA 9.

In all three cases, the Appellant complained that he had not received a fair trial due to the asserted incompetence of Counsel. In each case, the appeal against conviction was dismissed with unanimous decisions as to the outcome. The reason why their appeals were unsuccessful was because they had failed to demonstrate a miscarriage of justice had occurred as required by the statute under which the appeal was brought.

In each case, the High Court expressed a reluctance to engage in a review of counsel’s performance for various reasons, including not knowing what was in counsel’s brief, the possibility that tactical decisions open to counsel were behind the decision(s) complained of and the nature of the adversarial system where parties are ordinarily bound by the conduct of their counsel.

However, the High Court in each case did affirm that incompetence of Counsel might amount to a miscarriage of justice which would permit the setting aside convictions. The cases of TKWJ, Ali and Nudd all turned on their own facts.

The effect of these decisions is that:

→ in order for an appeal based on incompetence of Counsel to succeed, it is necessary to show a miscarriage of justice has occurred
→ Counsel’s forensic decisions during a case will not be in error unless the possibility that there was some forensic advantage for the decision is excluded
→ even where Counsel is found in error, it is necessary to show that such errors resulted in the loss of a chance of acquittal that was fairly open
→ in assessing whether there has been loss of a chance of acquittal that was fairly open, the Court will consider the strength of the Crown case and the likelihood that Counsel’s errors changed the outcome of the trial.