TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124
The charges
The appellant, known as TKWJ, was convicted of two offences of aggravated indecent assault, and one offence of aggravated indecency after a trial by a jury in the District Court of New South Wales. The offences were said to have been committed against C, a boy aged about 12 at the time of the offences and the son of the woman with whom he was living at the time of the offences.
The appellant had initially also been charged in respect of allegations made by K, who was C’s younger sister. However, those charges were dropped following warnings given by the Court of Criminal Appeal, in another case, of the dangers in trying together charges involving more than one complainant.
Character evidence
Before or during the trial, defence counsel informed prosecuting counsel that he intended to call evidence of good character. Prosecuting counsel then indicated that, in that event, he would call K as a witness to give evidence of the matters which were the subject of the outstanding charges relating to her. As a result, defence counsel decided not to call character evidence. It was later argued that decision, was “wrong” in the circumstances because counsel should have sought an “advance ruling” from the trial judge on the question whether K’s evidence would be excluded. That was said to have resulted in a miscarriage of justice. Alternatively, it was submitted that K’s evidence would inevitably have been excluded by the trial judge and, thus, there was a miscarriage of justice by reason of the failure to call character evidence in the defence case.
Appeal decision
The appellant appealed against his convictions to the Court of Criminal Appeal on the sole ground that:
“The appellant’s convictions constitute a miscarriage of justice in that the trial was unfair.”
The miscarriage of justice was said to have arisen from the appellant not receiving a fair trial because he was “unfairly denied the benefit of [evidence of] his good character”. The absence of such evidence was attributed to the prosecution deciding to frame the indictment so as to confine the charges to those involving C, and then in its “insistence” upon calling evidence from K if the appellant raised character as an issue. In truth, however, the direct cause of the absence of evidence of the appellant’s good character was the decision of his counsel not to call such evidence.
The Court of Criminal Appeal by a majority dismissed the appeal and concluded that no criticism of the prosecution could be made for refusing to present an indictment charging all matters and that, if character was raised, the Crown would lead evidence in reply as to the allegations made by the complainant’s sister.
James J, with whom Sheller JA agreed, said:
“In my opinion, it is not possible for this Court to say any more than that, if an application for a ruling had been made, the trial judge might have made, but might not have made, a ruling favourable to the appellant.”
In Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 at 300, Mason CJ and McHugh J said:
“There has been no judicial attempt to list exhaustively the attributes of a fair trial. That is because, in the ordinary course of the criminal appellate process, an appellate court is generally called upon to determine, as here, whether something that was done or said in the course of the trial, or less usually before trial, resulted in the accused being deprived of a fair trial and led to a miscarriage of justice. However, various international instruments and express declarations of rights in other countries have attempted to define, albeit broadly, some of the attributes of a fair trial. Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘the ECHR’) enshrines such basic minimum rights of an accused as the right to have adequate time and facilities for the preparation of his or her defence and the right to the free assistance of an interpreter when required. Article 14 of the International Covenant on Civil and Political Rights (‘the ICCPR’), to which instrument Australia is a party, contains similar minimum rights, as does s 11 of the Canadian Charter of Rights and Freedoms. Similar rights have been discerned in the ‘due process’ clauses of the Fifth and Fourteenth Amendments to the United States Constitution.”
In Mraz v The Queen [1955] HCA 59; (1955) 93 CLR 493, Fullagar J said:
“[E]very accused person is entitled to a trial in which the relevant law is correctly explained to the jury and the rules of procedure and evidence are strictly followed. If there is any failure in any of these respects, and the appellant may thereby have lost a chance which was fairly open to him of being acquitted, there is, in the eye of the law, a miscarriage of justice. Justice has miscarried in such cases, because the appellant has not had what the law says that he shall have, and justice is justice according to law.”
In R v Storey [1978] HCA 39; (1978) 140 CLR 364 at 376, Barwick CJ said:
“”[T]he question before a Court of Criminal Appeal is not disposed of by the discovery of error in the trial. If error be present, whether it be by admission or rejection of evidence, or of law or fact in direction to the jury, there remains the question whether none the less the accused has really through that error or those errors lost a real chance of acquittal. Put another way, the question remains whether a jury … would have failed to convict the accused: or were the errors such that if they were removed a reasonable jury might well have acquitted.”
In R v Birks (1990) 19 NSWLR 677 at 683 and 685 the New South Wales Court of Criminal Appeal said 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 held 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.
s 6(1) of the Criminal Appeal Act 1912 (NSW) relevantly provided:
“The court on any 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 cannot 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 other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal”.
The proviso to s 6 provided that:
“the court may, notwithstanding that it is of 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.”
Section 135 of the Evidence Act relevantly provides:
“The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a) be unfairly prejudicial to a party”.
Section 137 provides:
“In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant”.
Gleeson CJ
Gleeson CJ held that assuming it would have been possible for trial counsel to have sought a ruling in advance, the possibility that the trial judge might have agreed to give such a ruling demonstrated nothing more than that the trial could have been conducted differently.
Gleeson CJ concluded why the appeal should be dismissed as follows:
“It is undesirable to attempt to be categorical about what might make unfair an otherwise regularly conducted trial. But, in the context of the adversarial system of justice, unfairness does not exist simply because an apparently rational decision by trial counsel, as to what evidence to call or not to call, is regarded by an appellate court as having worked to the possible, or even probable, disadvantage of the accused. For a trial to be fair, it is not necessary that every tactical decision of counsel be carefully considered, or wise. And it is not the role of a Court of Criminal Appeal to investigate such decisions in order to decide whether they were made after the fullest possible examination of all material considerations. Many decisions as to the conduct of a trial are made almost instinctively, and on the basis of experience and impression rather than analysis of every possible alternative. That does not make them wrong or imprudent, or expose them to judicial scrutiny. Even if they are later regretted, that does not make the client a victim of unfairness. It is the responsibility of counsel to make tactical decisions, and assess risks. In the present case, the decision not to adduce character evidence was made for an obvious reason: to avoid the risk that the prosecution might lead evidence from K.”
Trial counsel made a decision not to call certain evidence. Viewed objectively, it was a rational tactical decision, made in order to avoid a forensic risk. It did not make the trial unfair, or produce a miscarriage of justice.”
Gaudron J
Gaudron J said that there are two reasons why the question whether an accused was competently represented poses difficulties for an appellate court:
→ the conduct of a criminal trial frequently involves defence counsel making tactical decisions which may contribute to a defect or irregularity in the trial
→ ordinarily, it is not possible to know what was in defence counsel’s brief.
Gaudron J also said that:
“Where decisions taken by counsel contribute to a defect or irregularity in the trial, the tendency is not to inquire into counsel’s conduct, as such, but, rather, to inquire whether there has been a miscarriage of justice, or, if the proviso to the criminal appeal provisions is engaged, whether “no substantial miscarriage of justice has actually occurred”. In that exercise, the question whether the course taken by counsel is explicable on a basis that has or could have resulted in a forensic advantage is a relevant, but not necessarily a decisive, consideration.
“The question whether 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.”
Gaudron J concluded why the appeal should be dismissed as follows:
“The appellant has failed to demonstrate either that counsel would have sought to have K examined on the voir dire or that, if she had been so examined, her evidence would inevitably have been excluded. It follows that it has not been established that the failure to call character evidence in the defence case resulted in the loss of a chance of acquittal that was fairly open.”
McHugh J
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”.
McHugh J opined that no miscarriage of justice occurred:
“There is no significant possibility that the trial judge would have exercised his discretion to exclude the sister’s evidence, if an advance ruling had been sought. The decision not to call the good character evidence was a matter falling within the discretion of counsel as to how he would conduct the defence and did not constitute a material irregularity that led to a miscarriage of justice. Furthermore, if the appellant had called good character evidence, the sister’s evidence would have been admissible in rebuttal and there was no significant possibility that calling the character evidence would have led to the appellant’s acquittal. I would dismiss the appeal.”
Hayne J
Hayne J held that the question of “miscarriage of justice” must in this case direct attention to the result of the trial and whether counsel’s conduct affected the result of the trial.
Hayne J said that because the asserted miscarriage was that some evidence could have been, but was not, placed before the jury, the ultimate question is whether the jury would have been likely to entertain a reasonable doubt about guilt if all the evidence had been before it.
Hayne J held in such cases, the Court should not ask why did counsel not lead the evidence, or whether counsel competent or incompetent. The relevant question is: could there be any reasonable explanation for not calling the evidence? If not, there may have been a miscarriage of justice, depending on whether the jury would have been likely to entertain a reasonable doubt about guilt if the evidence had been led.
Hayne J held that there was no miscarriage of justice in this case as there were several possible bases on which trial counsel for the appellant could reasonably have concluded that to run any risk of evidence being led from the other complainant would be unwise, including the likelihood of a voir dire where K would have given evidence.
Gummow J agreed with the reasons of Gaudron J and of Hayne J.
As Kirby J noted in Nudd v R [2006] HCA 9, this is one of a trilogy of cases High Court 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 that form this trinity 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 on appeal that he had not received a fair trial due to the asserted incompetence of Counsel. In each case, the appeal against conviction was unanimously dismissed by the High Court. 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 pursuant to 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 did affirm that incompetence of Counsel can 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 error(s) 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.
