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Court of Criminal Appeal 4 August 2016

Finch v R (No 2)

[2016] NSWCCA 153

Public order & justice offences
PRACTICE AND PROCEDURE CRIMINAL APPEAL

Citation: Finch v R (No 2) [2016] NSWCCA 153
Court: NSW Court of Criminal Appeal
Date: 4 August 2016
Judges: Payne JA; McCallum J; Davies J

Background

This judgment is a sequel to the principal appeal decision in Finch v R [2016] NSWCCA 133, delivered on 13 July 2016. The appellant, who was self-represented, had been convicted on indictment and was pursuing a criminal appeal. During the hearing of that principal appeal, he sought leave to raise an additional ground not included in his original notice of appeal.

The proposed new ground (called "Proposed Ground 11") alleged that his trial counsel was incompetent in two respects: repeatedly arriving late to court, and failing to properly understand the laws relating to LSD. The Court reserved its decision on this application and directed both parties to file written submissions after the principal judgment was handed down.

The appellant filed no submissions in response to that direction. The Crown filed submissions on 27 July 2016 opposing the grant of leave.

  • Whether leave should be granted under s 5 of the Criminal Appeal Act 1912 (NSW) to add a further ground of appeal raising incompetence of trial counsel
  • Whether an extension of time under r 25A of the Criminal Appeal Rules (NSW) should be granted to permit the amendment
  • Whether counsel's lateness on two occasions during trial constituted incompetence causing a miscarriage of justice
  • Whether counsel's forensic choices regarding LSD evidence demonstrated a lack of legal knowledge amounting to incompetence

Decision

The Court applied the established test from R v Birks (1990) 19 NSWLR 677, which holds that an accused is generally bound by the way trial counsel conducts a case. Appellate intervention is reserved for cases where "flagrant incompetence" or some other cause has produced a genuine miscarriage of justice. The Court also drew on Alkhair v R [2016] NSWCCA 4, which confirmed that the ultimate question is whether the appellant lost a chance of acquittal that was fairly open to them.

On the lateness allegation, the Court examined the trial transcript and found that counsel was late on only two occasions. On both occasions the appellant's solicitor was present, no complaint of unfairness was raised at the time, and the trial judge managed each instance without prejudice to the appellant. The Court found no basis to conclude that the lateness caused any unfairness, let alone the flagrant incompetence required for appellate intervention.

On the LSD knowledge allegation, the Court relied on findings already made in the principal judgment. Counsel's decision not to challenge certain evidence about the method of LSD consumption was an objectively rational forensic choice, because even a successful challenge would not have avoided conviction given the separate liquid LSD evidence. The Court had also already rejected the substantive argument about LSD falling outside the Drug Misuse and Trafficking Act 1985 (NSW). Counsel's conduct did not reveal a misunderstanding of the relevant law.

Both aspects of Proposed Ground 11 were found to be without merit. Because the Court's findings were adverse on the substance, leave to add the ground was refused.

Orders Made

  • Leave to add Proposed Ground 11 to the notice of appeal alleging incompetence of defence counsel at trial is refused.

Key Takeaways

  • The Court of Criminal Appeal confirmed that mere lateness of trial counsel on two occasions, where no prejudice or complaint arose at the time and the trial was managed appropriately, does not meet the threshold of incompetence required to establish a miscarriage of justice.
  • Under the Birks principle, an accused is bound by the conduct of their trial counsel, and appellate courts will only intervene where "flagrant incompetence" has caused the loss of a fairly open chance of acquittal.
  • Rational forensic choices, assessed objectively from the trial record, do not give rise to a miscarriage of justice, even if the accused contends on appeal that they did not authorise those choices.
  • Where conclusions reached in a principal judgment are themselves fatal to a proposed new ground of appeal, those findings provide a sufficient basis for refusing leave to add that ground.
  • Leave to add a ground of appeal outside the original notice requires both leave under s 5 of the Criminal Appeal Act 1912 (NSW) and an extension of time under r 25A of the Criminal Appeal Rules (NSW).

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW) s 5
- Criminal Appeal Rules (NSW) r 25A
- Drug Misuse and Trafficking Act 1985 (NSW) s 4

Cases:
- R v Birks (1990) 19 NSWLR 677
- Alkhair v R [2016] NSWCCA 4
- Ahmu v R; Director of Public Prosecutions v Ahmu [2014] NSWCCA 312
- Finch v R [2016] NSWCCA 133 (the principal judgment)