SUPREME COURT OF QUEENSLAND

1. DE JERSEY CJ:   I have had the advantage of reading the reasons for judgment of Thomas JA.  I agree that the appeal should be allowed, the conviction set aside and that there should be a retrial.  I add nothing to His Honour’s reasons, with which I agree, as to the first ground of appeal, the alleged incompetence of the appellant’s trial counsel.

2. I also agree with His Honour’s reasons in respect of the second ground, a perceived miscarriage of justice because of counsel’s failure to disclose to the appellant his past and then current relationship with the Crown prosecutor.

3. This is not a case of actual injustice. The Crown case was strong, the defence was robust and the trial was regularly conducted. Further, there is no suggestion of any actual, improper disclosure of material by defence counsel to the prosecutor.

4. But that is not the end of the matter. In a different context (this is not a case of misunderstanding between bar and bench), but one which usefully points up the role of counsel, Sankey LJ said in Hobbs v Tinling & Company Limited [1929] 2 KB 1, 48:

“The Bar is just as important as the Bench in the administration of justice, and misunderstandings between the Bar and the Bench are regrettable, for they prevent the attainment of that which all of us desire – namely, that justice should not only be done, but should appear to have been done.”

5. Litigants see members of the bar conducting themselves as officers of the Court, owing a special duty to the Court. Just as the Court expects fearlessly independent presentation by counsel, so the client expects that subject to counsel’s supervening duty to the Court, counsel will with fearless independence promote the client’s cause.

6. The circumstances of this case would engender reasonable suspicion or apprehension in a fair minded, informed observer as to whether defence counsel necessarily acted with that fearless independence. That is the test, transposed by analogy from that applicable to apprehended judicial or jury bias (Webb v R (1994) 181 CLR 41), and not the less strict “real likelihood of bias” test favoured in that area in England (R v Gough [1993] AC 646, 670).  In this case there plainly was no “real likelihood” that defence counsel did not properly defend his client.  But notwithstanding the apparently robust defence, would a fair minded, informed observer nevertheless entertain a reasonable suspicion or apprehension that defence counsel may not have done so?

7. It is counsel’s failure in this unusual case to disclose the circumstance of his relationship with the prosecutor which I believe warrants answering that question “yes”. The relationship apparently involved their having lived together, effectively as de facto husband and wife, over a period of 11 months concluding only two or three months before the commencement of the trial. The at least latent relationship between the parties current at the time of the trial was such that they went on to occupy the same motel room over the weekend following the trial (albeit platonically), resuming their relationship some three months later. Aware of those circumstances, as at the time of trial, an objective observer, appreciating the sensitivity and delicacy of the criminal justice process, and the starkly contrasting perspectives of prosecution and defence, would admonish defence counsel candidly to inform his client of those circumstances, and would query counsel, with suspicion, if he failed to do so.

8. A different situation confronted Bryson J in D and J Constructions Pty Ltd v Head (1987) 9 NSWLR 118, that of a solicitor’s acting against a former client who had previously communicated confidential information to the solicitor.  What is nevertheless useful for present purposes is His Honour’s reference to the appearance of the matter, as it would be perceived by the former client (page 123):

“Cautious conduct by the Court is appropriate because the spectacle or the appearance that a lawyer can readily change sides is very subversive of the appearance that justice is being done.  The appearance which matters is the appearance presented to a reasonable observer who knows and is prepared to understand the facts.”

9. I am satisfied that in this case a reasonable observer would regard, as a matter for curious enquiry, why defence counsel, imbued with the high ideals of professional practice at the bar and owing substantial duties to the Court, and appreciating the delicacy of the process and the strength of his client’s interest in securing an acquittal, would fail to disclose his substantial past, and to a degree obviously continuing, intimate association with the prosecutor. That is a matter which would concern an ordinary litigant in such a situation. That counsel failed to advert to it engenders, reasonably, suspicion or apprehension that justice may not have been done.

10. The primacy of the axiomatic stipulation that justice must be seen to be done, as well as done, or as it was put by Lord Hewart CJ in R v Sussex Justices ex parte McCarthy [1924] 1 KB 256, 259, “manifestly and undoubtedly be seen to be done”, in my view compels our taking the course of overturning this conviction and, inconvenient though this will be - especially to the complainant, ordering a new trial.

11. DAVIES JA:  I, too, have had the advantage of reading the reasons for judgment of Thomas JA.  I agree with the orders he proposes.  However as my reasons for that conclusion differ somewhat from his I shall explain them briefly.  In doing so I accept the statement of relevant facts by Thomas JA.

12. I agree generally with his Honour's reasons for rejecting the first ground of appeal. Indeed the only qualification to my agreement with those reasons relates, not to that ground, but to the second ground of appeal. It concerns his Honour's interpretation of the appellant's instructions referred to in [35] of his Honour's reasons and the conclusion which his Honour reached, based on that interpretation, that those instructions were "self-convicting" ([42]) and consequently that his chances of acquittal would have been even more remote had he given evidence ([43]).

13. I agree that his Honour's interpretation of the appellant's instructions and his conclusion based on that interpretation is probably correct. Nor do I think that it was incompetent, let alone flagrantly incompetent, of his counsel not to question the appellant more closely about what he understood the complainant's state of consciousness to be when, as he put it, she took his hand, they kissed, she permitted him to touch her bare breasts and rub her crotch region, she assisted him to remove her underpants and they commenced to have intercourse without demur from her. Counsel's failure to question the appellant further in this regard may well have been caused by the appellant's statement that, once intercourse commenced, she "snapped" and asked "Who are you?" several times. This might well have confirmed in counsel's mind, probably correctly, the interpretation of his Honour referred to above. Nor was it incompetent in those circumstances not to advise the appellant, in greater detail than in fact occurred, about the consequences of his giving and not giving evidence. The interpretation already referred to and the previous inconsistent version from the appellant justified that failure.

14. But it does not follow that his Honour's interpretation is necessarily correct or that a fair-minded person, later learning of defence counsel's relationship with the prosecutor, must reasonably have arrived at that interpretation or must reasonably have accepted that counsel should not have advised the appellant in greater detail about the consequences of giving and not giving evidence.

15. I would accept as the test to be applied in determining the second ground of appeal, whether a fair-minded person, in the position of either the appellant or a member of the public, might reasonably apprehend that, because of defence counsel's relationship with the prosecutor or its consequences, the appellant was deprived of a fair trial.^[1]  If that is the appropriate test then such a person could not have such reasonable apprehension unless he or she might entertain a reasonable view that, had the relationship not existed, the trial would have been conducted differently by the appellant's counsel.

16. For the reasons given by Thomas JA in rejecting the first ground of appeal I do not think that a fair-minded person could reasonably apprehend that, apart from issues relating to whether or not the appellant should give evidence, the trial would have been conducted differently on the appellant's behalf had the relationship not existed. That is why the reasonable apprehension of such a person in respect of such issues, in my opinion, assumes so much importance.

17. The appellant's statement that he thought the complainant might be sleep-walking and grabbed her shoulder, and that afterwards she held his hand, they walked together, kissed, touched intimately and together removed clothes is at least possibly open to ambiguity in the sense that her conduct after he grabbed her shoulder may have reasonably reassured him that she was aware of what was occurring and was consenting to his advances including the removal of her underpants, the partial removal of his trousers and the commencement of sexual intercourse. And it may not have been until after she "snapped" that he ought reasonably to have appreciated that, until then, she was still asleep or in a trance-like state. The failure to resolve these possible uncertainties would, it seems to me, assume much greater importance in the mind of a fair-minded person after he or she had been informed that the person who failed to resolve them in a way which might have disclosed a defence and resulted in strong advice to give evidence, had been in an undisclosed relationship, before and after the trial, with his opposing counsel.

18. In my opinion, a fair-minded person, having been informed of the relationship, and of the failure by the appellant's counsel to disclose it to the appellant, might have entertained a reasonable apprehension that, had it not been for that relationship, the appellant's counsel would have conducted his pre-trial conference with the appellant differently and in a way which might have disclosed a defence to the charge and, in turn, required strong advice to give evidence. For that reason I think there was a miscarriage of justice requiring this appeal to be allowed and a retrial ordered.

19. THOMAS JA:  The appellant was convicted of burglary and rape and sentenced to seven years imprisonment.

20. He appeals against his convictions on two grounds, both of which relate to the conduct of his counsel. Firstly he alleges that counsel was flagrantly incompetent in advising him to elect not to give evidence; and secondly he alleges that his counsel was in a relationship with the Crown prosecutor such as to deprive the appellant of truly independent legal advice. These matters are said to have caused a miscarriage of justice.

Evidence

21. The Crown case was strong. The evidence revealed that the complainant was a 21 year old South African tourist who was staying at a resort at Airlie Beach with her cousin Ms Heslett. The appellant who worked in the Mackay district was at the resort for a few days. He met the complainant in the afternoon of 5 April 1998 and they conversed on a number of occasions in the hours that followed. On one of these occasions he told her that he had been moved to the room next to hers. At about 10 pm the complainant, who had spent some time at the hotel adjacent to the resort felt unwell from the wine she had consumed and returned to the resort where an acquaintance escorted her to her room. She had locked her room keys inside her room and accepted this person's offer to sleep in his room diagonally opposite hers, which was not being used by him. She retired, removed her dress and after lying down became physically sick. She then returned to her own room, holding her dress in front of herself on the way, and managed to force open the door.

22. She closed but did not lock her door because her cousin was still absent. The complainant was wearing panties when she went to bed. She fell asleep and woke to find someone on top of her with her panties being pulled to the bottom of her legs and very quickly realised that that person's penis was inside her vagina. She tried to push him off, recognised that the man was the appellant and screamed. He withdrew and jumped from the bed pulling up his trousers and left the room. Her screams were heard by a friend (one Martin) who was sitting on the balcony of a nearby room. Shortly afterwards Martin saw a male person come from the direction of the complainant's room and walk briskly towards the bar area.

23. After the appellant had fled the complainant's room she dressed and ran to find her cousin. Martin observed her crying loudly. He intercepted her and asked what was wrong. She responded "I've just been raped". He assisted her to locate her cousin who also saw that the complainant was crying. The complainant told her that "Mick [the appellant] had come into her room and raped her". The police were called and the complainant gave a statement and submitted to medical examination. The doctor noted no bruising or redness although there was a slight matting of the pubic hair and a small amount of blood present in the vagina consistent with the complainant's history of being at the end of her menstrual cycle.

24. The police interviewed the appellant who accompanied them to the police station. He denied going into the complainant's room and denied having had sex with her. He gave a detailed record of interview claiming that he had not seen the complainant after he had noticed her dancing at the resort nightclub with her cousin that night. He was arrested after the interview.

25. The police took possession of his clothing and arranged for body samples to be taken from him. Later that day the appellant telephoned the police indicating that he wanted to talk to the detectives, saying inter alia "I had sex with her but it was consensual sex". The police telephoned him back to inform him that the detectives involved in the case could not be contacted and suggested that he tell his solicitor. The appellant said "I just remember more, that's all. I was drunker than what I said in the interview and it was definitely sex with consent".

26. Forensic examination of the appellant's underpants revealed the presence of DNA, most likely blood, the profile of which was consistent with that of the complainant. Other DNA was also present consistent with that of the appellant.

27. In cross-examination of the complainant defence counsel put to her essential parts of the appellant's version including the implicit concession that the appellant was the person who visited her room, and suggesting that consensual sexual activity occurred. Inter alia he put to the complainant:

"In fact you were standing in the doorway of your chalet in just your panties …".

"It was at that stage that Michael approached you …".

"You were kissing each other …".

"I put it to you that in fact you and he kissed before sitting on the bed".

"In fact you assisted each other to get your underpants off and get his pants down …".

"I put it to you  that you were, for a short period of time up until you yelled out, engaging in consensual sex".

and "I suggest to you whether it was because your inhibitions were down, because you were drunk or … for whatever reason you were quite happy to consent to sex with that person that night?"

28. At the close of the Crown case a short adjournment was granted to enable final consultation between defence counsel and the appellant, before the appellant was called on to elect whether or not to give evidence. When called upon his counsel informed the court that the appellant would neither give nor call evidence.

Alleged incompetence of counsel

29. There is no doubt that the appellant instructed his counsel that he would not give or call evidence. The central submission is that counsel failed to advise the appellant fully "as to the balancing factors for and against giving evidence". It is said that this resulted in the appellant electing not to give evidence and that this deprived the jury of evidence that could have led to his acquittal. These propositions are contested. In particular, there is good reason to think that the evidence he would have been able to give would almost certainly have convicted him.

30. Consistently with the procedure referred to in Paddon,[2] affidavits were filed on behalf of the appellant and affidavits in reply were filed on behalf of the Crown on the question of the advice actually given to the appellant by his legal advisers and of the appellant's own attitude and instructions on the issues raised.

31. The evidence shows that discussions occurred between the appellant and his legal advisers at a conference on the day before trial and subsequently in the course of the trial. Relevant matters were discussed including the question whether the appellant should elect to give evidence. A contemporaneous note by the articled clerk at the former conference states that the appellant was asked if he wanted to give evidence in court and that he declined, observing that he was afraid the prosecutor would twist his words. At one stage he stated that his "big mouth" might get him into trouble. Both she and defence counsel asked him to consider carefully if he wanted to give evidence and that if at any point he changed his mind to let them know. The appellant decided that he would let counsel present the case "according to the facts provided by him" and that he would not take the stand. He was told to think about it and to advise in the morning if he had changed his mind. During the conference the appellant displayed a confident attitude and indicated (contrary to the opinion of counsel) that he believed he would be acquitted.

32. After the conference the articled clerk, who was concerned that the appellant did not appear to be recognising the seriousness of the situation, went to his hotel room and further discussed the trial. She told him he had to realise that if he was convicted he would go to prison, and that he should seriously consider all of his options in relation both to his plea and his decision to give evidence. She told him that if he needed to talk or changed his mind in relation to giving evidence he should call her. The evidence also shows that the appellant was advised that if he did not give evidence the only way his version of events would be placed before the jury would be through counsel's questioning of the witnesses. The appellant again expressed a concern that if he gave evidence the Crown prosecutor would "twist it all around" and make him look guilty.

33. One of the difficulties obviously present in the minds of the appellant and his advisers was the fact that he had initially lied to the police and had denied any sexual contact with the complainant whereas the case that he now wanted to present was that the complainant had consented to sexual intercourse.

34. The appellant's affidavit alleges that his version of the incident was not fully put to the complainant during her evidence. This allegation is contested, but it is sufficient to refer to the appellant's affidavit. His first example of alleged failure by counsel in this respect is his complaint that he had instructed that the complainant was standing at the entrance to her unit and "she was topless". The appellant is simply in error in alleging that counsel failed to put that allegation to the witness. Counsel put to her "In fact you were standing in the doorway of your chalet in just your panties, just your panties?"

35. The story that the appellant claims was not adequately put by his counsel continues that the complainant had made no reply when he asked her what she was doing. He "thought she may be sleepwalking" and grabbed her shoulder. This, on his account, was then followed by their walking to her bed, kissing, touching each other and removing clothes. His version proceeds that they commenced having sex and that the complainant then "snapped" (or as I would interpret his story, woke up or came out of her trance) and asked "Who are you, who are you?" He claims to have told her "you wanted this" and that she had again asked "Who are you?" It is enough to observe that these instructions are singularly unpromising from the appellant's point of view on the issues of consent or of honest and reasonable belief on his part in consent. It is impossible to discern anything other than advantage to the appellant from the fact that counsel put a somewhat abridged version of this to the witness. Without canvassing this point any further, I am of the view that no serious inadequacy or deficiency is revealed in counsel's conduct in relation to putting to the witness the essential version upon which the appellant wished to rely.

36. Mr Godsall who appeared for the appellant in this court submitted that the appellant's trial counsel had failed to advise him fully on the advantages and disadvantages of not giving evidence, and that in the context of this particular trial it was essential that he be advised that his chances of acquittal were remote unless he gave evidence. It is true that advice in those terms was not given, but in the circumstances of this trial it is impossible to hold that such advice ought to have been given. It was reasonably open to counsel to think that his chances of acquittal were even more remote if he did give evidence. It would seem to have been a reasonable forensic decision to endeavour to raise doubt in the jury's mind as to the reliability of the complainant and her account, and to seek acquittal on that basis. In this respect, his cross-examination of the complainant appears to have been competent. Inter alia counsel gained some ground on the complainant's difficulty in reconciling the alleged movements of the appellant in removing her panties and achieving penetration at virtually the same time.

37. Setting aside a conviction on the ground that the incompetence of counsel has caused a miscarriage of justice is by no means a new phenomenon in the courts.^[3]  Courts of criminal appeal have for a long time exercised their jurisdiction to set aside convictions when a miscarriage of justice is evident, whatever the cause.  However in recent years the instances where convicted persons seek to have a conviction set aside on this ground have markedly increased.  The reasons why it is necessary to treat such allegations with some circumspection, and to uphold such contentions only when it can be seen that incompetence of a very high order (often called flagrant incompetence) has resulted in a miscarriage of justice, are discussed in a number of cases,^[4] and need not be here restated.

38. The election to give or call evidence is an important matter in any criminal trial. It is recognised as a decision on which a client is entitled to make the final decision.^[5] This is in contrast to many other matters involved in a trial including decisions which may be generally described as tactical decisions, where counsel has the authority to act without the need for consultation with the client.

"Decisions as to what witnesses to call, what questions to ask or not to ask, what lines of argument to pursue and what points to abandon are all matters within the discretion of counsel and frequently involve difficult problems of judgment including judgment as to tactics".^[6]

39. The relevant principles to be followed by a court of appeal in such cases were summarised by Gleeson CJ in Birks[7] as follows:

"1. A Court of Criminal Appeal has a power and a duty to intervene in the case of a miscarriage of justice, but what amounts to a miscarriage of justice is something that has to be considered in the light of the way in which the system of criminal justice operates.

2. As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence.
3. However, there may arise cases where something has occurred in the running of a trial, perhaps as a result of "flagrant incompetence" of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice.  It is impossible, and undesirable, to attempt to define such cases with precision.  When they arise they will attract appellate intervention."

Advice on election

40. Although the election to give evidence is the client's right, most of the relevant considerations involve forensic judgment. It is impossible to lay down in advance the extent of detail that needs to be discussed or what will amount to reasonable discussion for the purpose of assisting the client to make the necessary election. It should be recognised however that too much forensic discussion may be bamboozling, and that it is not a lawyer's duty to educate the client to the equivalent of a trained lawyer. Generally speaking it should be sufficient to mention the main points that should guide the particular decision. It is then for the client to accept or reject the advice. It is worth emphasising that it is neither improper nor incompetent for counsel, after reasonable discussion with a client, to offer strong advice to the client as to the course that should be taken. Reluctant acceptance by a client of such advice does not convert the exercise to an impropriety. It may well be the case that the advice is accepted with a degree of reservation or ambivalence, but that is hardly surprising in a matter where a decision has to be made on perceptions and sometimes intuition rather than upon established premises.

41. Once made, an election to give or not to give evidence has the advantage or disadvantage of any election – its maker must accept its consequences. No doubt many persons who are convicted later ponder whether the result would have been different had they made a different election. So do counsel. Such regrets no doubt arise in those who have been convicted after electing to give evidence just as they do in those who have been convicted after electing not to give evidence. However a belief by an appellant that he has made the wrong election at trial is a far cry from showing a proper ground of appeal.

42. Such a ground might be made out if a professional adviser unfairly overbore the will of an accused or gave him no real opportunity to participate in the decision. This was the position in Sankar v State of Trinidad and Tobago[8] where the Privy Council set aside a conviction following a trial in which the advocate failed to give the client adequate advice or explanation of the alternative courses available to him or to tell him that if he did not give evidence he had in practice no defence.  This deprived the appellant of the opportunity to present his defence to the jury and a substantial miscarriage of justice occurred.  The circumstances of the present case are however distant from those in Sankar.  Firstly there was adequate discussion and opportunity for the present appellant to make his decision; secondly it could not be said that unless the present appellant gave evidence he was bound to be convicted; and thirdly the story which Sankar wished to tell did not contain the self-convicting quality of the present appellant's story.

43. In the present case there was adequate discussion of the issue and it is impossible to regard the advice that the appellant should refrain from giving evidence as incompetent let alone flagrantly incompetent. The appellant was not deprived of the opportunity of making the final decision and had the opportunity to accept or reject the advice of his professional advisers. In the circumstances the advice given to him was reasonable. It would seem that his chances of acquittal would have become even more remote had he given evidence.

44. Perusal of the record suggests that defence counsel's conduct of the trial was generally competent and a clear understanding of the forensic considerations was revealed. There is no merit in the first ground of appeal.

Alleged impropriety

45. This ground is expressed in a somewhat convoluted way.

"By reason of matters not disclosed to the Appellant, the Appellant was entitled to a reasonable apprehension that he had not received truly independent legal advice on the question of whether or not he should give evidence, thus causing a miscarriage of justice ".

46. The "matters not disclosed to the appellant" are intended to refer to the relationship which existed between defence counsel (Mr H) and the Crown prosecutor (Ms B) before and after the trial. It is now common ground that Mr H and Ms B were in "a relationship" (presumably a de facto relationship) for eleven months up to January 1999. It had been intermittent for part of that time, but had included 6 months when they resided together as a couple. It was broken off in January 1999, but was resumed in the following July. The present trial took place in Bowen from 12 to 14 April 1999 at which time Mr H states that he was "not in a relationship" with Ms B. However the evidence shows that between 16 and 18 April, only a few days after the appellant was convicted, both counsel spent the weekend together at Airlie Beach, staying in a motel room booked for two adults in the name of "H", although Mr H has sworn that "our relationship was not in any way resumed". Evidence was also given that during the first week of the Bowen circuit (ie the week of the appellant's trial) Mr H and Ms B booked into separate rooms at the Skyview Holiday Apartments Bowen. On one occasion Ms B obtained the key to Mr H's unit from the proprietor, saying that she had left things belonging to her in the unit and that Mr H had given her permission to collect them in his absence. The proprietor gave the key to Ms B and it was later returned. Mr H agrees that Ms B visited for communication on normal matters of contact between a Crown prosecutor and defence counsel, such as the running list for the sittings and to supply copies of statements not previously given to the defence. He did not recall giving Ms B permission to collect his keys, but agrees that the above visit to his unit by Ms B may quite possibly have happened.

47. Speaking of the time when he regarded himself in a relationship with Ms B, Mr H has sworn that "whenever we conducted trials against each other during the relationship, the client has been fully informed in that regard well before trial". However it would seem that at the time of trial he did not regard himself as being in a relationship that required disclosure. Having regard to the fact that the relationship was actually resumed a few months later, and to the nature of the proven contact between them at material times it might reasonably be thought that they retained some interest in each other beyond a purely professional one and that there was a live prospect of renewal. Indeed within a few days of the trial they spent a weekend in the same room. The claim that "our relationship was not in any way resumed" is imprecise and is of limited relevance. The overall appearance of the above circumstances is that of a separated couple who retained at least some interest in renewal. They were therefore much closer to each other than ordinary arms-length legal adversaries. They practised in an area which would bring them into contact in cases in which they were both involved. Each of them accepted instructions to act in the present case as professional adversaries. No mention of these matters was made to the appellant. He discovered the nature and extent of their relationship later when in prison. He was very disturbed by the revelation.

48. A number of submissions were advanced on behalf of the appellant based upon principles that relate to bias and apparent bias on the part of judges and other decision makers. Decisions tainted by bias or by apparent bias^[9] will of course be set aside.  The leading cases on this issue suggest the relevant test as whether the circumstances are such as to give rise in the mind of a party or of a fair minded and informed member of the public to a reasonable apprehension of a prejudiced mind or a lack of impartiality on the part of the decision maker.^[10]   The principle has been extended beyond courts to the actions of quasi judicial tribunals, administrative tribunals and commissions of inquiry.^[11] The authorities contain general statements such as:

"It is of fundamental importance that the parties to litigation and the general public have full confidence in the integrity, including the impartiality, of those entrusted with the administration of justice."^[12]

However I am not aware of any decision which applies the well-known apparent bias test to the activity of persons other than decision makers.

49. The authorities that deal with apparent bias do not automatically accommodate to a decision of a jury following a trial where the convicted person complains that he has suffered injustice by reason of an association between his counsel and the Crown prosecutor. The true source of law for the resolution of such a question is the power of a Court of Appeal to set aside a conviction when it considers that there was a miscarriage of justice. In Queensland s 668E of the Criminal Code requires the court to allow an appeal on various grounds including that on any ground whatsoever there was a miscarriage of justice. Section 668E(1) of the Criminal Code provides:

"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 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 ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal".  (emphasis added)

Similar statutory formulae confer such a power on courts of criminal appeal in other Australian jurisdictions.  This is of course qualified by a power commonly referred to as "the proviso" to dismiss the appeal if the court considers that no substantial miscarriage of justice has actually occurred.^[13]

50. The formulation of guidance for courts of criminal appeal in Australia in exercising the above powers has a chequered history. This is partly because the section expresses alternative grounds upon which the courts' powers may be exercised, and such grounds overlap. I put to one side those cases which formulate the approach to be taken in reviewing the evidence in order to ascertain whether the verdict should be set aside on the ground that it is unreasonable or cannot be supported on the evidence^[14] and the line of cases in which the "unsafe and unsatisfactory" formula was, for a considerable time, thought to be an appropriate abbreviation of the end conclusion that the verdict was unreasonable.^[15]  The present complaint does not suggest that anything is wrong with the summing-up or the jury's verdict; it is a complaint that there is has been a miscarriage of justice.  Indeed, on analysis the complaint is that there is a perceived rather than an actual miscarriage of justice.

51. The cases however indicate a predictably broad approach in relation to setting aside a conviction if an appeal court is of opinion "on any ground whatsoever that there was a miscarriage of justice".^[16]  In Ratten[17] Menzies J observed "if an accused did not have a fair trial his conviction was a miscarriage of justice".  In Whitehorn[18] it was observed that "a court of criminal appeal should allow an appeal if, having regard to all the evidence, it concludes that it would be unsafe, unjust or dangerous to allow a verdict of guilty to stand".

52. Certain statements in authorities in the United Kingdom^[19] which speak of "lurking doubt whether an injustice has been done" and the "general feel of the case" have not been regarded as appropriate formulations of the powers of Australian courts of criminal appeal.^[20]  In Whitehorn the High Court considered that wide as the powers of a court of criminal appeal are, they do not under Australian legislation empower a court to set aside a verdict upon a speculative or intuitive basis.

53. Lord Hewitt's celebrated though hackneyed words:

"… it is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done^[21]".

have surfaced in extraordinarily diverse contexts, not all of them legal.  In itself the statement is too general to afford a test that will solve individual cases, but it has played its part in the development of the law of apparent bias.  A question of degree arises in determining the point at which appearances are sufficiently important to have the same destructive effect as the reality.  In the area of apparent bias the courts have formulated a test based on the mind of the party or of a fair-minded and informed member of the public.^[22]  The test whether justice was "seen to be done" was rejected in a New Zealand decision dealing with the trial of a man with a limited knowledge of English. The real question was recognised as whether the trial was fair, recognising the additional requirements necessitated by the language barrier.  In that case^[23] however it was said that the test to be applied was whether the trial would, in the eyes of a reasonably minded observer, have appeared fair.

54. Little guidance can be found in relation to identification of appearance of miscarriage of justice other than by examples, some of which will be now mentioned. A verdict may be set aside when communications have occurred between a judge and a jury, or between some unauthorised source and a jury.^[24]  The setting aside of such verdicts is sometimes based on perception rather than actuality, as for example when actual details of the communication are not known but the court considers there is a sufficient danger that the verdict was influenced by such material.  In such cases it is the risk of miscarriage that justifies the decision.^[25]  But of course such cases also demonstrate that the accused has not had a trial according to law in that material was received by the jury other than through proper process.  When this happens the contest usually comes down to whether the proviso should be applied. 

55. Cases where a conviction has been set aside because of a procedural defect such as wrongful exclusion of the public from part of the proceedings suggest that public perception may be an influential consideration in the setting aside of a conviction even when the evidence may be objectively sufficient to justify the conviction. However the authorities on this question^[26] are conflicting, some treating such proceedings as void, others as involving a question of degree, and others as treating such an occasion as revealing legal error. 

56. Webb v The Queen[27] comes a little closer to the present situation, although it concerns apparent bias on the part of a decision maker, namely a juror.  In the course of a murder trial a juror presented a bunch of flowers to a person at the courthouse with a request that it be given to the deceased's mother.  In what may be regarded as reflecting a robust view of criminal process and as rejecting an unduly suspicious view of human nature the majority of the High Court upheld the conviction.  The test adopted as to whether the jury should have been discharged, relevantly stated, is whether the incident gave rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the jury did not discharge its task impartially.^[28]  While the juror’s conduct, standing alone, did give rise to a reasonable apprehension of a lack of impartiality, the circumstances overall, that is to say taking into account factors such as the juror's explanation, her personality, and the judge's directions, satisfied the court that a fair-minded person would not in the end apprehend bias or lack of impartiality.

57. The need for upholding public confidence in the administration of justice is a factor that may properly play a part in determining whether there has been a miscarriage of justice.

"If public confidence in the administration of justice is to be maintained, the approach that is taken by fair-minded and informed members of the public cannot be ignored.^[29]"

58. The setting aside of a conviction because of the conduct of counsel has usually been linked with its potential for having led to an unfair result. However it is not limited to notions of incompetence. The final paragraph of Gleeson CJ's statement in Birks earlier quoted[30] is apposite.  While that case deals with alleged incompetence of counsel it recognises the absence of limitation upon the type of conduct by counsel that may be held to cause a miscarriage of justice.

59. I have concluded that in exercising jurisdiction under s 668E(1), allegations of disquiet concerning the conduct of counsel are not to be determined by direct transposition of the tests that have been formulated in relation to apparent bias on the part of decision makers, but that some analogy may properly be drawn. Bias on the part of a judicial officer is an abuse or a perceived abuse of judicial power. The disquiet that arises from the fear that counsel may have failed in their duty is a serious matter, but it is a disquiet of a different kind. It arises out of concern that a person with an important role in the trial may not have discharged it adequately in favour of the client. If a reasonable suspicion arises that defence counsel has "run dead" or colluded with the Crown prosecutor contrary to the interests of the accused or for some extraneous purpose failed to play the proper role of defence counsel, that would reveal a seriously unfair contest, and would in my view demonstrate a miscarriage of justice sufficient to require the conviction to be set aside.

60. The question might best be posed as 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. Such a conclusion however does not necessarily follow from the mere fact that the Crown prosecutor and defence counsel have an association or even a sexual relationship. All relevant circumstances have to be considered, including the conduct displayed by defence counsel which might feed or rebut any suspicion of unfairness.

61. Applying these principles to the present circumstances, one immediately has to consider whether it is proper for persons in particular relationships to act for contrary interests. Would it be improper for a husband and wife to oppose each other as counsel for different parties in the same case? I am not aware of any general reason of public policy why this should be prohibited, although individual factors may arise in particular instances which make it undesirable. There is no current rule of conduct approved by the Bar Association of Queensland that addresses such a problem. Speaking generally there does not appear to be any sufficient reason to think that by reason of their relationship such persons would not each do their best on behalf of their respective clients. There is of course a risk that counsel living in the same house or with access to each other's property could improperly read the other's brief, although the risk hardly seems any greater than in the case of counsel in the same group of chambers. A client with particularly valuable information might however choose not to take such a risk if notified of the relationship. That is one of the reasons that lead me to consider that in such a situation there is at the very least an ethical duty upon counsel to disclose to the client that such a relationship with opposing counsel exists. I do not think that a similar duty necessarily arises in relation to a case involving counsel in the same group of chambers. While this distinction may not seem entirely logical, its justification is the greater suspicion arising from sexual intimacy and an assumption that persons in a sexual relationship are more likely to be prepared to do a favour for the other than persons not in such a relationship.

62. The above remarks must also be generally true of persons in a relationship of cohabitation. Disclosure of the relationship to the client would be necessary. The client should have the opportunity of indicating whether he or she wishes to continue with such counsel. Some however might think that this conclusion conflicts with anti-discrimination law.^[31]  Could counsel who wished to retain a brief in these circumstances contend that dismissal by the client was invalid because it was based on the ground of marital status (which includes de facto spouse status)?  Similar questions have necessitated fine distinctions being drawn in decisions such as Boehringer Ingelheim Pty Ltd v Reddrop[32] and Waterhouse v Bell.[33]  It would seem that a dismissal based upon an assumption that a spouse is susceptible to the corrupting influence of his or her spouse would be prohibited,^[34] whereas dismissal based upon the risk of disclosure of confidential information by inadvertence or otherwise would not amount to discrimination and would be lawful.  These considerations may perhaps complicate rather than illuminate the present problem.  However it is relevant in considering the acceptability of counsel's conduct in such a situation to take some account of the current anti-discrimination laws which tend to afford greater protection to activity of persons in such relationships than formerly existed and which prohibit reliance on the existence of such relationships as a ground for discrimination against such persons.^[35]

63. In the present case, perusal of the record suggests that defence counsel acted competently and indeed with a deal of spirit on behalf of the appellant. No fair-minded observer who watched the trial would on the score of performance have had any good reason to suspect any collusion, connivance or lack of dedication to his task. The mere fact that he was in a relationship (or more accurately a transitional phase of a relationship that was later resumed) would not necessarily be a sufficient basis to ground a reasonable suspicion that he would not perform properly as defence counsel. So far as the evidence of Ms B's visit to Mr H's unit at the time of trial, and of their contacts with one another during the circuit, this would likewise seem to afford insufficient basis for a genuine suspicion that Ms B may have used the opportunity to search Mr H's papers and thereby obtain a forensic advantage. It is of course possible, but such a suspicion is of too remote a character to justify the label "reasonable suspicion" in the fair-minded observer. Furthermore the appellant has not suggested any concern on his part on this score.

64. The failure of counsel to disclose his relationship in the circumstances described is however a matter of concern. I have concluded that despite the suspended state of the relationship at the time of trial, a frank disclosure should have been made to the client of the former relationship and of the continued friendship (or whatever the nature of the current association then was). It is appreciated that in such a situation future predictions may be impossible. However the degree of association which followed so soon after the trial justifies the inference that there existed an interest in renewal. In all the circumstances I consider that Mr H was under a duty to inform the appellant of the past and present situation to the best of his ability just as he would have been obliged to do if he and Ms B were still in a continuing relationship.

65. Counsel's failure to disclose his relationship is the main basis of the lack of confidence which the appellant now asserts in relation to his counsel. In particular he has sworn:

"Had my Counsel, Mr [H] informed me, prior to my trial, of the past relationship, I may not have objected to his continuing to act for me because of his honesty with me.  However, I was not so informed."

However that concession does not extend to what he believes his attitude would have been had he been provided by his counsel with the then current state of the relationship:

"Had Mr [H] informed me that the "on again-off again" nature of the previous affair was such as to raise a possibility that he and the Prosecutrix would spend together the nights of Friday, 16 and 17 April 1999 in occupation of a motel room at a popular holiday and tourist destination, such would have caused me such alarm about continued feeling between the two, and about the independence and impartiality of Mr [H], so as to cause me to have asked for a different Barrister.  In any case I was not so informed."

66. The appellant then deals with other hypotheses such as the discovery of the relationship from sources other than his counsel.

"Had I been advised before trial, but by a third party only, of the matters mentioned in sub-paragraphs 1(a), 1(b) and 1(c) hereof, I would have had serious doubts about Mr [H]'s honesty in his professional relationship with me and would have tried to obtain a different Barrister for my trial.

…

"Had I been advised prior to trial, but by a third party only, of the possibility of such an Airlie Beach motel beach occupation, I would have had serious doubts about Mr [H]'s professional relationship with me, such that I would have tried to obtain a different Barrister."

(The "matters mentioned in sub-paragraphs 1(a), 1(b) and 1(c) hereof" are details of the former relationship which ended in January 1999).

67. The appellant's affidavit also discusses his view of his barrister's failure to disclose his past or present relationship with the prosecutor:

"The non-disclosure to me of the matters mentioned in sub-paragraphs 1(a), 1(b) and 1(c) hereof causes me to believe that feelings still existed between the two, and that Mr [H] was not truly independent and impartial in his representation of me, advices to me and conference including the topic of whether or not I should give evidence".

and

"The non-disclosure of such a possibility to me causes me to believe that feelings still existed between the two, and that Mr [H] was not truly independent and impartial in his representation, advices to me and conference, including the topic of whether or not to give evidence".

68. Some circumspection is required concerning these argumentative hypothetical statements, and from the circumstances in which they were produced, that is to say, after legal argument on the question. In any event the appeal is not to be decided upon subjective considerations such as the response of the appellant. This underlines the preferability of an objective test along the lines posed above at paragraph [42]. Even so, the ordinary fair-minded citizen would have regard to the likely effect of such conduct upon a person who is convicted after such a trial. The responses of the appellant are by no means unlikely or incredible given the way in which he found out about the relationship.

69. The researches of counsel have produced a number of instances where consideration has been given to the possible effect upon a criminal trial of counsel being in such a relationship. In R v Batt (17 May 1996)[36] on the second day of trial counsel for the prosecution was replaced by defence counsel's co-habitee.  The accused was fully informed of the situation and chose to continue with the same defence counsel.  He later complained about the situation, and alleged that he had not been given sufficient time to make a proper decision.  The court noted that counsel appeared to have promoted his client's case with proper vigour and that having been advised of the position the accused had chosen to continue.  The court (per Nelson J) observed that "any member of the public, knowing that the appellant had so acted in the knowledge that he then had, would not form the view that, in continuing the trial, justice was not being seen to be done".  The court however added the following caveat:

"We do express the view that it is generally undesirable for husband or wife, or other partners living together, to appear as advocates against each other in a contested criminal matter.  To do may give rise to an apprehension … that the proper conduct of the case may have been in some way affected by that personal relationship".

70. As a matter of general advice I respectfully agree with that statement. Its observance would avoid contests such as those in Batt and in the present case.  However the question is whether breach of that advice has led to a miscarriage of justice.

71. Such a miscarriage was perceived by the Court of Appeal in the United Kingdom in the case of Winston Smith.^[37]  In that case a pupil in chambers participated in a conference occurred between the accused and his barrister, at which a pupil in Chambers with another group of barristers attended.  A few days before the trial started the pupil informed the accused (through the accused's landlady) that the prosecution brief in the case had been delivered to the chambers in which he was a pupil.  He seemed embarrassed and indicated that he would  not be in court and that he would not take any part in the case.  However, surprisingly, the pupil was seen attending the trial in wig and gown.  Despite a complaint made to the clerk of the appellant's solicitors, who returned to say that a promise had been given that the pupil would not take any part in the proceedings, during the greater part of the trial the pupil remained in court sitting behind prosecuting counsel.  The accused was disturbed and worried by his presence in court.  The court stated:

"In the present case we readily assume that no information obtained by the pupil was divulged to counsel for the prosecution or used at the trial, but on the basis of that assumption it seems to us impossible to say that in the circumstances justice was seen to be done".^[38]

72. The court held that there had been a material irregularity in the course of the trial which required the convictions to be quashed.

73. Mr Godsall, for the appellant, referred to a number of sources from the United States in support of his submission. He referred to Haley v Hon. Boles[39] where the following statement was made of a spousal relationship between a prosecutor and a member of a law firm that handled criminal defence cases:

"These relationships affect our legal system itself.  The cornerstone of the system is effective, independent representation of the respective litigants by professional Counsel.  Our concern is further erosion of public confidence in our system.  Here the appearance of independence of the trial Counsel is diminished.  Furthermore should the case not be tried, but dismissed or a plea bargain reached, the close personal relationship between the adversaries' lawyers creates at least an appearance that the disposition resulted from less than arm's length negotiations."

74. Mr Godsall also referred us to a ruling of the New York State Bar Association's committee on professional ethics^[40] which answers the following question:

"May a lawyer undertake the representation of someone being prosecuted by an assistant district attorney who the lawyer is dating frequently and with whom the lawyer has a close personal relationship?"

The ruling, which is resoundingly in the negative, includes the following statement:

"A scintilla of partiality, which might be waivable by private parties in other contexts, is intolerably suspect and prejudicial to the public's regard for the criminal justice system.  See, eg N.Y. State 588 (1987); N.Y. State 450 (1976).

Irrespective of the subjective intent of the prosecutor and defense counsel, and regardless of howsoever scrupulous they may be in the conduct of their professional obligations, the appearance of partiality in the administration of justice is so strong that a couple who date frequently should not be permitted to appear opposite one another in criminal cases".

The committee added:

"A frequent dating relationship is clearly over the line" and "a dating relationship between adversaries is inconsistent with the independence of professional judgment required by DR5-101(A)".^[41]

75. The system of legal practice in criminal cases in the United States is very different from that which obtains in Australia. In many states the principal prosecution officers are elected. The above comments in Haley v Hon. Boles extracted above were made in the course of a decision excusing an entire firm from handling indigent criminal defence cases on the ground that one partner in the firm was the spouse of the prosecutor assigned to the case.  The dimension of ethical difficulties in the practice of the law in the United States, the effect of the Constitution upon the process, the structure and role of the office of prosecutor and many other factors make it difficult to transpose such rulings or opinions to this country. 

76. The United States opinions are however of interest and have been included for completeness on a topic that has received very little direct consideration in the other common law countries. Obviously the difficulties mentioned in Batt above have been identified, and, at least in New York a total prohibition is seen as the best solution.  However I do not think that sound practice in our criminal courts requires a total prohibition.  I agree with the decision in Batt which respects the consequences of full and frank disclosure followed by a clear and informed waiver.  It may be noted that in the event of such disclosures being required in future cases, the wisdom of obtaining the client's assent in writing should be apparent.

77. The critical question in this case is whether counsel's failure to disclose to his client his "on again off again" relationship with the prosecutor led to a miscarriage of justice. If disclosed at the right time (ie before trial), in the event that the appellant had objected the trial would presumably have proceeded with some other counsel whom there is no reason to suspect would have acted more competently than Mr H. But the client would have been free of the lurking suspicion that now besets him.

78. I do not doubt that a failure to disclose, may, as a matter of evidence, provide a basis for a reasonable apprehension of a miscarriage of justice. Such a question, in the context of alleged bias by a judicial officer, was expressly left open in Dovade Pty Ltd v Westpac Banking Group.[42]  Whatever limits there may be on inferences that can legitimately be drawn of apparent bias on the part of a judicial officer who fails to  make an appropriate disclosure, a non-disclosure of the present kind deprives the client of an opportunity to cause, or attempt to cause a different course to be followed, and is capable of contributing to a miscarriage of justice.

79. In my view counsel's failure to disclose his past relationship with the Crown prosecutor and also the reasonable possibility of the renewal of that relationship distinguishes the situation from that in Batt.  The appellant here had no opportunity to have any say in the matter.  His feeling that he was deceived is understandable.  In my view an ordinary fair-minded citizen in the position of the appellant with knowledge of all relevant circumstances would have at least a lingering suspicion that the appellant did not have the benefit of fair play. 

80. I have hesitated in reaching this conclusion having particular regard to the seemingly competent representation and the apparent correctness of Mr H's advice to the appellant against giving evidence. The case reveals a situation in which different minds might well come to different conclusions. It may be possible for example that the fair-minded reasonable observer would understand the appellant's disappointment and concern over his counsel's non-disclosure, but not conclude that the trial was unfair or that justice miscarried. However the importance of maintaining full confidence in the integrity and impartiality of those entrusted with the administration of justice, and in particular counsel, should not be under-estimated. In the end I conclude that an ordinary fair-minded citizen in the position of the appellant, with knowledge of all relevant circumstances, would entertain a reasonable suspicion that justice miscarried.

81. The Crown case was strong, and the instructions now revealed by the appellant do not provide much promise of weakening it. The appeal is not allowed on any perception that an innocent man has been convicted, but on the ground that it may be perceived that he did not have a fair trial according to the process by which criminal trials are conducted. To uphold the conviction would send the wrong message to professional persons entrusted with a vital role in the administration of criminal justice, and would in the end lower public confidence in the integrity of the system.

82. The appeal should be allowed. The convictions should be set aside and there should be a re-trial.