AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
4
Court of Criminal Appeal 19 August 2009

MB v Regina

[2009] NSWCCA 200

Assault & violenceHomicide
CRIMINAL LAW APPEAL AND NEW TRIAL MISCARRIAGE OF JUSTICE CONDUCT OF DEFENCE COUNSEL INCOMPETENCE EXAMINATION AND TREATMENT OF EVIDENCE

Citation: MB v Regina [2009] NSWCCA 200
Court: NSW Court of Criminal Appeal
Date: 19 August 2009
Judges: Spigelman CJ; McClellan CJ at CL; Johnson J

Background

A young man died in Newcastle in July 2005 after sustaining a slash wound to the neck from a bottle during an altercation involving a group of teenage boys. The central issue at trial was identification: specifically, which person in the group had inflicted the fatal injury. The appellant pleaded not guilty but was convicted by a jury before Howie J in the Supreme Court.

The appellant sought leave to appeal out of time, which the Crown did not oppose. The appeal raised two principal grounds: that the trial was rendered unfair by the incompetence of defence counsel, and that the trial judge erred in directing the jury to consider self-defence and excessive self-defence.

A non-publication order was made in relation to the identity of the appellant and a number of witnesses.

  • Whether defence counsel's conduct at trial, particularly alleged failures to properly advise the appellant about his right to give evidence, conduct consistent cross-examination, and investigate blood evidence, amounted to incompetence causing a miscarriage of justice under s 6(1) of the Criminal Appeal Act 1912
  • Whether the trial judge erred by giving a self-defence direction (known as a Pemble direction) in circumstances where the appellant denied being the assailant

Decision

Ground 1: Incompetence of counsel. The Court applied the well-established principles from R v Birks and the High Court trilogy of TKWJ, Ali, and Nudd. Those principles hold that an accused is generally bound by how counsel conducts the trial, and that errors of judgment or even negligence by counsel will not ordinarily warrant appellate intervention. Intervention is reserved for cases where "flagrant incompetence" or some equivalent failing has caused a miscarriage of justice.

The Court focused on the third particular of Ground 1: that counsel failed to properly advise the appellant about the decision not to give evidence. After examining all the circumstances, including the wide discretion counsel holds as an officer of the court, the Court was not satisfied that any incompetence was established, or that any failing by counsel created a significant possibility that the outcome was affected. The other particulars, relating to investigation of blood evidence and cross-examination strategy, were similarly rejected. No miscarriage of justice was established.

Ground 2: Self-defence direction. A Pemble direction arises where, even though an accused denies committing the act in question, evidence at trial is nonetheless capable of raising self-defence, and the trial judge must direct the jury accordingly. In oral submissions, counsel for the appellant effectively conceded that the self-defence direction was not itself inappropriate and that Pemble applied. The Court noted this concession amounted to an abandonment of Ground 2 in its original form.

The appellant's residual complaint was that the direction focused the jury on the Crown's version of events (a deliberate downward blow) rather than a "pushing back" scenario the appellant would have described. The Court found this submission unpersuasive. The "pushing back" scenario had not been advanced at trial as a basis for self-defence, and counsel was entitled to take the view that it was so inconsistent with the objective and expert evidence that it should not be pursued. Even if the ground had been reformulated, it would have failed.

Orders Made

  • Time to lodge the appeal extended
  • Appeal dismissed

Key Takeaways

  • A conviction will not be set aside on the basis of counsel's conduct unless that conduct caused a miscarriage of justice, meaning there is a significant possibility that a material irregularity affected the outcome. Errors of judgment or tactical decisions that prove disadvantageous to an accused do not meet that threshold.
  • The Court of Criminal Appeal confirmed that an accused is generally bound by how defence counsel conducts the trial, including decisions made without or contrary to the client's instructions, provided those decisions do not reach the level of flagrant incompetence.
  • Under the Pemble principle, a trial judge must direct the jury on self-defence whenever the evidence at trial is capable of raising it, even where the accused denies committing the act at all. This obligation arises regardless of the defence's chosen strategy.
  • In dismissing Ground 2, the Court noted that a factual scenario not advanced at trial as a basis for self-defence cannot, without more, ground appellate complaint about the terms in which a self-defence direction was given.
  • Failing to object to a trial judge's comment on an accused's silence is not, by itself, a standalone ground of incompetence where the comment was made in the context of a properly given self-defence direction.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 6(1)

Cases
- Pemble v The Queen (1971) 124 CLR 107
- R v Birks (1990) 19 NSWLR 677; 48 A Crim R 385
- TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124
- Ali v The Queen [2005] HCA 8; (2005) 79 ALJR 662
- Nudd v R [2006] HCA 9; (2006) 80 ALJR 614
- Zecevic v DPP (Vic) (1987) 162 CLR 645
- R v Ignjatic (1993) 68 A Crim R 333
- Atirut Sungsuwan v The Queen [2005] NZSC 57; [2006] 1 NZLR 730
- R v Kyriacou [2000] SASC 312
- R v Szabo [2000] QCA 194; (2000) 112 A Crim R 215
- R v Muratovic [1967] Qd R 15
- R v Marshall, Court of Criminal Appeal (NSW), 17 July 1990 (unreported)
- R v Strang, Court of Criminal Appeal (NSW), 10 December 1990 (unreported)