Advising on Merit Appeals: The Reasonable Prospect of Success  

This paper was written by C.B. Craigie, SC
Deputy Senior Public Defender
15 September 2004

The Merit Test

Both when lay appellate clients approach the Legal Aid Commission directly and when private solicitors representing such clients seeking aid for an appellate remedy the matter is passed through the filter of independent advice as to the merit of the contemplated matter. The test applied is whether the appeal has a reasonable prospect of success. In some instances an incompetent appeal or one falling so short of merit on its face as to be elusory will be so assessed refused by the Commission’s Appeals Section lawyers without recourse to counsel’s advice. In most instances, the Commission will require that lay clients and private solicitors to submit contemplated appeals to a process involves adhering to a condition imposed by the Commission that the Public Defenders’ clerk be approached with a view to obtaining a merit advice. Where a Public Defender is not available or the Commission, for whatever reason, determines to brief other counsel advice is obtained from private counsel. As Public Defenders operate as barristers in chambers and not as a firm the mere fact that a Defender appeared at first instance will not oblige our clerk to refuse the brief, although if any controversy is likely to arise in respect of trial counsel’s conduct or perhaps that of a Commission solicitor closely associated with advising counsel the brief is likely to go off the floor.

The merit advice is additional to any advice or report, often furnished on return of the trial or sentence brief the counsel who appeared at first instance. The same process applies for both Court of Criminal Appeal matters and applications for Special Leave to Appeal in the High Court. No merit advice is required for representation to defend against a Crown Appeal and respondents will be represented on the basis of the usual Legal Aid income bases test for eligibility. Usually a finding of merit in a contemplated appeal or application results in counsel who has prepared the favourable advice being briefed to conduct the resulting proceedings in the Court of Criminal Appeal. This is a sobering restraint on anything other than a highly pragmatic approach.

In some years I have been responsible for considering a good deal of the advising work that flows from this procedure and on that basis I may boldly offer some observations:

The Role of Advising Counsel

The obvious purpose of preparing an advice on merit is to inform the Legal Aid Commission or the assigned private solicitor. Should aid be refused it should also inform the reviewing panel on an appeal against refusal. It is important to note that up to the point that the Commission responds positively to a merit advice a private instructing solicitor briefing counsel to advise is, in effect, acting as the Commission’s agent.

It is important that all concerned in a merit assessment matter bear in mind that advising counsel does not have the same relationship with the lay client as either counsel at first instance or as would be the case where merit has been found or where one is privately briefed and funded to advise on a contemplated appeal. Failure to understand this and to act in a manner consistent with the limited role is likely to confuse the lay client, and to produce unhappiness all around. One’s essential role is to determine whether public funds are to be expended on a matter, on the basis that it has reasonable prospects of success. There is a vital public interest, coextensive with the interest of other potential applicants for a share of Legal Aid funds. These interests rely heavily on the integrity of advising counsel.

Occasionally a client will ask to see advising counsel to discuss the matter. It is plain from the letters that one occasionally receives requesting such a meeting that its purpose is to persuade one to find merit, or occasionally to answer a myriad of questions that are more subtly directed to the same end. As much as one may have complete sympathy with these approaches, I will ask my solicitor to politely filter them and ask that any further inquiry be directed to the solicitor. As to the questions that sometimes come from the client, I regard it as prudent to acknowledge them in context and weave some response to such of them as are relevant to the task into the final advice. That aside, unless it is one of those very rare instances where the client is actually a witness to a trial irregularity, upon which it is contemplated that evidence may be called on appeal (a rare event made rarer when one compares impressions with that of the trial instructing solicitor) it is difficult to conceive of a situation where this would be desirable or wise. One should ordinarily politely decline the invitation, if need be in writing to the solicitor and in terms that may be conveyed with courtesy to the client. This provides the opportunity to make the nature of one’s role and obligations quite plain, particularly when the solicitor has told the client that he or she now has a barrister who is working for the client. Permitting such a misunderstanding is not compatible with the task of tendering independent advice to the Commission. It is also unkind to the client in supporting his or her expectations. It permits and encourages a quite natural impression in the lay client that you are either predisposed to grant aid simply because you are on the client’s side. In the event that merit is not found, you have simply misled him by falsely presenting yourself as his counsel and defender. In the event that aid is found it founds an unhealthy view that you are engaged because you were hungry for the brief and not because the matter had merit.

Apart from the immediate pragmatic purpose in obtaining advice there are other and no less important functions. Given natural motivation of convicted and sentenced persons to appeal and the inherent limitations of principle confronting many such appeals it is the sad reality that most applications for Legal Aid to pursue an appeal will not have merit. Although advising counsel is not acting for the client it is to be expected that the client will at some stage be shown any advice refusing aid. An advice that also, perhaps for the first time, explains the reality of his or her situation is of great importance to the client who may well resent the conclusions in the advice but may also regard it as some explanation and perhaps even a source of closure, cathartic or not.

I find that I often take longer to deal with the issues of an appeal that has been actively urged upon the solicitor’s lay client, even if the appeal is misconceived from the start. It is well in any event to be careful that an advice is presented in way that affords at least one last opportunity of bringing the client to terms, if not acceptance, with his or her situation if nothing in reality can be done to alter matters. For that reason, and not only because the advice must also satisfy the potential scrutiny of the Legal Aid Review Committee, it is important that the advice be forensically rigorous but expressed in terms that may either be understood by the client reading it or at least easily conveyed by those, including one must realistically expect other more experienced inmates, advising the client.

Apart from giving the unsuccessful lay client a fuller explanation of his or her situation the process of advising is, of course, vital in clarifying the margins between arguable points and winning points. An arguable point and one with reasonable prospects may differ considerably. The former may be interesting in an academic sense but in reality simply cloud the potential winning issue and diminish the force and credibility of argument.

Foundations of the Advice

The Essential Questions:

Lay clients and some lawyers tend to regard all appeals as simply a re-running of the issues fought and lost at first instance. It is important that advising counsel both appreciates the likelihood of this fallacy and dispels it in the approach taken to the advice. In reality, appeals come in distinctly different shapes: to the District Court via consideration of the merits de novo, to the Court of Criminal Appeal based on miscarriage or error, whether patent in law or fact or latent or in apparent an outcome that is objectively excessive. Applications for Special Leave in the High Court are again governed by their own distinct and different criteria.

Counsel who advises on, let alone appears in appears in a Court of Criminal Appeal matter must have a sound grasp of the principles and statute upon which the Court’s intervention is to be obtained. The tests are:

In an appeal against conviction.
Has there been a miscarriage of justice produced by the proceedings leading to conviction? One notes that in rare instances an irregularly entered plea of guilty may be challenged and set aside on this basis.

In an application for leave to appeal against a sentence.
Has an error been disclosed in the sentencing discretion?


In both instances there is a crucial statutory filter. In the form of “the proviso”
(s.6 Criminal Appeal Act 1912 ) that error alone will not activate the discretion to intervene, unless there has been a miscarriage of justice, and in the case of a sentence application or that “ some other sentence is warranted”(s.6(3)).

The effect of these provisions is that errors, not all that difficult to find given the complexity of the law are but the first and sometimes easiest stage. The more challenging test is whether there is a case to be made for intervention.

Preparation of the Advice

As with other aspect of counsel’s practice, adequate preparation is everything:
You need to be aware of what your real time frame for preparation is. This is quite essential and one should insist on being supplied with a copy of the Notice of Intention to Appeal and confirm what the expiry date is and whether, if needed, it has been extended. If, for one reason or another, the time frame is simply impossible for you or any counsel to meet it is best to signal this to the Registry and seek an extension. Even if refused the act of good faith may later stand you in good stead if one later seeks on hearing of the appeal, leave for an extension of time for filing of the Notice of Appeal. With all briefs the bare minimum of assistance that one is entitled to expect is the indexing of the brief.

Before you start drafting you should insist that you be supplied with everything that was before the Court of first instance. This includes all transcript and exhibits. In a sentence application you need not just the exhibits and Remarks on Sentence, but all the appearances in the proceedings on sentence. If there were related offenders separately sentenced one should obtain the Remarks on Sentence unless one is satisfied that their circumstances were so removed from that of the applicant as to have no relationship in either parity or proportionality terms. Sometimes proper insistence will occasion delay. Indeed, it is the usual source of delay on the part of applicant-appellants. If this problem arises you really have no choice but to wait, asking that your solicitor keep the Registry informed. Ideally you should read all the evidence and examine all exhibits, including video-tapes and photographs, whether or not the trial or sentencing judge appears to have mentioned them. A practical exception to this is the Listening Device tapes in trials, provided that you can be assured through your solicitor that those instructing and appearing in the lower court confirm the accuracy of the transcript. On sentence the tapes are usually reduced to a transcript summary, by and large you are entitled to accept this as the factual basis of the sentence proceedings.

I find that in a conviction appeal it is helpful to read the summing up first, then openings and closing addresses. This somewhat eccentric order avoids both confusion and the disillusionment of promises made but not kept in the way the trial in fact unfolded. One needs to obtain any separate transcript of evidentiary rulings, most particularly any of significance determined against the accused.

In conviction appeals, having read the evidence, speaking to trial counsel in general terms to get a better feel for the trial can advantage counsel advising on merit. Generally, this is a good approach but becomes a matter requiring some circumspection where the conduct of trial counsel may render him or her a potential witness on the appeal. In such an event one may properly take the view that the advising counsel and solicitor should consult on the form of a letter asking specific and non leading questions which may later form the basis of an affidavit from trial counsel. This is important, particularly as one may need this material to confront Rule IV of the Criminal Appeal Rules, which requires that leave be sought to argue a matter not raised at trial. Apart from Rule IV situations there be an inquiry of trial counsel as to his or her general view of the trial and disclosure of any irregularities or events that are not apparent on the face of the transcript.

A good example of the need to be thorough in examining material is where both a Statement of Facts and witness statements have been tendered but only the former has been referred to. One cannot rely on the Court of Criminal Appeal only having regard to the sometimes sanitised version in the former when the fuller picture that includes victim’s statements sustains a somewhat graver view of the offence.

Finally it is helpful to know how things presently stand with the client. Have other matters, for instance a number of subsequent and concurrent come to pass that will undermine the prospect of a lesser sentence being substituted more remote. If the present matter is relatively minor but now subsumed in something much more serious similar it is best to know this before it becomes an embarrassment at an appeal hearing.

The Appearance and Content of the Advice

Ideally, a written advice is an exercise in illumination, not a mere bold statement of opinion that obscures any reasoning behind conclusions that are asserted. The good advice should stand on its own as a record of the task one has been asked to perform and of one’s satisfaction of that task.

In most cases an advice that has found merit need be no longer than is needed to explain in essence why one has come to that conclusion and upon what essential basis. Sometimes the issues are complex and the process of explanation with reasonable completeness is a useful exercise in forming the framework of later to be drafted grounds and submissions. Plainly if one cannot explain a merit decision the likelihood is that the analysis is inadequate of misconceived and, if glaringly so, the Commission may be compelled to seek a second and more considered opinion. This is unfortunate, particularly as time is passing and if one’s advising successor in title agrees with the advice to proceed and secures the brief to appear.

I favour the following structural outline, with occasion variations.
· An opening paragraph with the details of venue, judge, verdicts/pleas, the indictment counts, governing penal sections and maximums. One should check these details against both the remarks on sentence and the indictment back-sheet
· Background

· Consideration

· The essential principles that have been applied in assessment

· Conclusions

One will need to make concise but accurate reference to relevant parts of evidence before the Court of first instance and with which one was briefed. One need not restate a summing up or Remarks on Sentence but should recount the particular evidence and legal principles that were apposite to one’s consideration, the questions that they raise and one’s conclusions.

As is usual in any advice, one should commence with an introduction and a statement as to precisely what it is that one has been asked to advice upon, typically:

or

One should then recount in summary form, if more convenient the indictment charges the relevant sections creating the offences and the maximum penalties applying. The verdicts, if varying, should be listed with care and precision, as should penalties that were imposed. Where there is a list of indictment counts and a list of form 1 matters taken into account one should look up the sections and maximums for the form 1 matters, even if there was no reference to them in the trial Court.

Consideration

This is the point where one is fully across all the facts and, unless the matter has already struck one as clearly meritorious or clearly futile, one weighs the competing issues. For many of us the recording of our thoughts is, apart from consultation with colleagues, the best way of distilling the final product. When a particularly esoteric argument arises as the only possible appeal point I would suggest that a fair way of assessing it, at the end of the process of reading the brief and considering the relevant law is to picture oneself alone and on one’s feet starting to address the court with an opening line of “ the essential issue in this appeal is” or “ it is submitted that the sentence imposed here arose from error and was excessive because ”. Few successful appeals are not capable of being summarised in this manner, even if argument and interchange supporting them takes many pages or some hours of the court’s time. Whether or not an appeal passes this kind of test is often apparent from the kind of chambers work-shopping that accompanies many matters that are not clearly on one side of other of the reasonable prospect margin.

The process of sounding out colleagues is one, whether freshly called or a silk of twenty plus years should neglect. The workshopping exercise will often surprise in that one’s reluctance to be harsh is simply revealed as well meant realism. When considering a sentence application one’s sympathy is frequently and properly aroused by the particular subjective circumstances of a client, particularly the young, sometimes the reaction of one or two colleagues is needed to bring one to a determination as to whether, sympathy aside there is a basis upon which the court will find that the sentence exceeds that which is properly open in the exercise of the sentencing discretion. My own reaction to such situations is to see fairly quickly if other counsel of experience have a strong division of opinion on the matter, in which case the matter should be run, on the basis that at least one similarly experienced appellate judge may be of same view as my dissenting colleagues.

Conversely, once a matter is repeatedly identified as on the broad margins of merit I take the view that one should not talk oneself out of what is revealed by the exercise as simply difficult but undoubtedly a reasonable prospect. One crude way of putting if is that if a particularly constituted bench might allow that appeal, one should run it, even if it results in certain failure being revealed by the “wrong” collection of presiding judicial personalities appearing in the list issued the night before the hearing.

Timeliness and the post-2002 Listing Regime

The changes wrought by amendments to s.10 of the Criminal Appeal Act 1912 are very significant. The amendments passed in December 2001 commenced on 1st July 2002. Their affect is to overhaul the administrative basis of appeals to the Court of Criminal Appeal. Formerly a Notice of Appeal initiated the appeal, or application for leave in sentence matters. A Notice of Intention to Appeal (which has now gone into the language as the NIA) now initiates the process. Apart from the bare fact of having to accommodate a new initiating process there has been a considerable challenge for the profession in this fundamental change to the nature of the Court’s role in facilitating a hearing. In appeals initiated before July 2002, the process was commenced with a notice of appeal, a date for hearing was allocated and thereafter the parties were expected to adhere to a timetable for the filing of submissions prior to the hearing.

The new system no longer sees the Court as, in effect, collecting documents in accord with a timetable. Nothing happens by way of listing a matter until the complete collection of documents, the collation of which has a responsibility of the parties, has been filed. All necessary grounds, submissions, transcripts, exhibits etc must be filed before a date will ordinarily confirmed, this being the last stage in a process whose limits are the six months term of the notice of intention to appeal. An additional variation in practice is a requirement that there be grounds on applications for leave to appeal against sentence. I do not regard this as burdensome as there should always be an outline of argument in any well drafted set of severity submissions and the discipline of this exercise will reveal the grounds, which should be sufficiently concise as to reveal the answer to the perennial but unspoken judicial question “ why are you here, apart from the fact that your client thinks he got too much?” The last, and sometimes overlooked, document to be filed is formerly the first in the old system, the Notice of Appeal. Under the old system only 15% of the filed appeals came on for hearing now that figure was closer to 85% in 2003, the numbers still being comparable but the formerly lost percentage being now resolved prior to the Court being seized of a Notice to Appeal. One implication is that a great number of unmeritorious appeals were being abandoned previously. Many of the same kinds of matters still arise as NIAs but fail to satisfy the merit test. What is left was something of the order of the 578 appeals brought to finality last year. Something in the order of 50 to 60 Crown Appeals apart (I am unable to be more precise in matching the CCA ‘s financial year figures with the DPP’s calendar year figures), the great majority of these were legally aided and passed through the merit filter.

The new listing procedure requires quite a change in mind set and approach for practitioners. One must have a heightened awareness first that the practitioner is both ultimately in control and in the position of responsibility if an appeal becomes incompetent through delay. The old process was driven by and awareness that, once a Notice of Appeal was filed within 28 days of conviction, one was largely in control of an appeal timetable, triggered by seeking a date, after confirming merit Legal Aid and obtaining a date for hearing with a prior date for filing grounds and submissions. The new process obviously relies a great deal upon the promptitude of practitioners in preparing documentation. Essentially, the burden has been taken from the court so far as case-managing appeals and there has also been the undoubted benefit of removing from the court the administrative clutter and waste of judicial time of the former system, entailed in the eventual abandonment of a majority of appeals.

Given the nature of the professional relationship of advising counsel as an advisor to the Legal Aid Commission through an assigned solicitor pre-merit finding conferences with counsel tend to carry the risk of raised expectations and, to a lesser extent some potential for confusion as to the role of counsel not yet acting for a potential legal aid recipient. This is not a rule, so much as a note of caution to alert the unwary. I can certainly conceive of complex matters where a conference with the potential lay client may be desirable. Not having a conference at the advising stage, on the other hand, represents no neglect of care or departure from the proper standards expected of counsel.

Under the new time pressures generated by the recently introduced listing procedures the opportunity for instructing solicitors to be deeply familiar with a matter before briefing is somewhat compromised, particularly where the material is voluminous. The views of one’s instructing solicitor are welcome and often very valuable, indeed many counsel will complain if there is not some such input and the proposed Legal Aid Commission Practice Standards expects that it be conveyed to counsel in summary form, least. Where there is conflict between this exercise and the timely supply of an orderly and indexed brief to counsel one must regard time as of the essence, even if it means that both the lawyers responsible for advancing the advice and appeal are doing such reading as their different roles require at the same time.

(1) On Conviction

The approach in assessing a conviction appeal is at one level relatively straight forward, involving a reading of the transcript and obtaining an appreciation of all that took place at trial. To this end there is some wisdom in the abovementioned discussion with trial counsel as to the general conduct of the trial.

In the main, potential appeal issues divide between patent errors of law or trial procedure by the trial judge and latent errors in fact finding and applying the law by the jury. The issue of judicial error is the more tendentious in assessment, as it requires a further assessment of whether the error operated fatally for the provision of a fair trial. In the absence of the latter conclusion, the trial, although flawed by errors of law may nonetheless have remained fair in its outcome and the reasonableness of its outcome. The issue of unreasonable verdicts, the former “unsafe and unsatisfactory” description now being disapproved in a number of decisions as confusing (Fleming v The Queen 158 ALR 379 being but one), is perhaps more easily identified and argued.

Unreasonable Verdict

The authoritative test is that applied by the High Court, per Mason CJ, Deane, Dawson and Toohey JJ in M v The Queen (1994) 181 CLR 487 at 493 is:

And (at 494-495), this was explained in the following terms:

As to the application of this formulation, see also MFA v The Queen (2002) 193 ALR 184 at 190. Sometimes, both judicial errors and those of an unreasonable jury will arise for consideration in the one contemplated appeal. The latter turns on a subjective judgment that no jury properly instructed could reasonably have arrived at the verdict of guilty (what in former times used to be argued as a ground asserting an “unsafe and unsatisfactory” verdict). Advising counsel’s burden in identifying a reasonable prospect of success in such instances may not be as challenging as that where there is an error by the trial but its impact upon the outcome is doubtful. Although an unreasonable verdict represents one of those rare instances wherein an informed professional, but nonetheless visceral reaction is the best basis for advising that a matter has a reasonable prospect, one needs to keep in mind the clear distinction between disagreeing with a jury and finding that they could not be right, the latter being the required level of assessment.

Sometimes a verdict is challenged on the related basis of apparent inconsistency in verdicts on different counts relying on essentially the same or similar evidence. This is a challenge that sometimes arises in multiple count trials for sexual offences. The prospects of success tend to vary considerably, depending, amongst other things, upon whether the variations in outcome arise from doubts as to the complainant’s overall credibility as against a merely stronger case in some counts by reason of recency or supporting evidence. The governing principles are to be found in Jones v The Queen (1997) 191 CLR 439.

Error of Law

Assessing and advising on errors of law alone, provides in some ways a more complex and challenging task than the challenge to a plainly unreasonable verdict. The errors commonly encountered may be manifested in a multitude of ways. These may include:

The above list is, of course, nowhere near exhaustive but simply serves to demonstrate the daunting potential for error inherent in any criminal trial. The real challenge; not simply the identification of error, but identification of the error that is sufficient to raise the issue of miscarriage. Whilst errors of the above kind are not infrequent, they are not always sufficient of themselves to give the matter merit. The essential question may well be approached as an assessment as to whether the errors have so diminished the quality of the trial as to reach a point where the proceedings were not a fair trial according to law and that a real prospect of acquittal was lost thereby. In extreme cases, it may mean that there was no trial (a concept discussed at some length in R v Glennon (1994) 179 CLR 1 at 8). Assessments of the kind considered here are inherent in examining the possible impact of the proviso activated by s.6 of the Criminal Appeal Act 1912, which effectively excuses trial irregularities and errors, where there has been no substantial miscarriage of justice.

Rule 4 and the Proviso under Section 6

Plainly, these provisions stand as a distinct difficulty in many appeals. There is commonly an inter-relationship between the two provisions when assessing matters where there will be a requirement to seek leave to argue a matter not raised at trial and the fact that the matter was not raised at trial has also impacted upon the Court’s likely judgment as to whether there was a substantial miscarriage of justice. For my part, I am loath to reject appeals as lacking merit, where the only obstacle that stands between the appellant and a possible remedy is the proviso. An apparently overwhelming situation post trial may not be all that it seems. The need for caution in this regard is illustrated by R v De Cressac (1995) 1 NSWLR 381, where the Court of Criminal Appeal declined to invoke the proviso against an appellant who had made quite damning admissions in a post conviction interview with a probation officer. Notwithstanding this, and a failure by counsel to seek proper directions, the Court upheld a challenge arising from judicial failure to give proper and adequate warnings as to the particular circumstances to be taken into account when assessing identification evidence. This was a grave omission and obviously went to the heart of a fair trial. Street CJ cited the judgment of Fullagar J in Mraz v The Queen 93 CLR 493 at 514 where the following was said in relation to the s.6 proviso:

Understanding Rule 4

How then, does this sit with the many cases since, in which one knows that appeal prospects have been swiftly snuffed out by the Court, because counsel has not taken a point, argued a matter or sought proper directions at trial? This requires an understanding of the Rule 4 rationale and its inherent purpose, that one does not obtain an advantage by taking one of a number of possible forensic choices, some of which may involve not exercising a challenge or approach to the evidence that may be open at law, and repudiating that choice as an error by counsel if the trial is lost. It will be seen from an examination of authority that Rule 4 is no mere technical obstacle, to keep appellate chaff out of the Court. The Rule serves two primary purposes. They are:
1. To prevent trials fought on the basis of one defence being re-litigated on appeal on some other basis arising from a fortuitous error that did not affect the provision of a fair trial, as the appellant and trial counsel on instructions or in reasonable exercise of forensic choice, pursued it at first instance.
2. To encourage the provision of responsible assistance by trial counsel, particularly in relation to matters for direction in the summing up.

In determining whether leave will be granted, much will depend on the nature of the point not taken or the matter not argued. In general, the application for leave to argue a matter not raised, rises or falls on an assessment of whether the matter was “fundamental” to the obtaining of a fair trial (see Hunt CJ at CL in R v Clarke (1995) 78 A Crim R 226, and as followed in R v Mitton [2002] NSWCCA 124, unreported).

Some s.6 Proviso and related Rule 4 examples:

R v Zreika [2002] NSWCCA 459, 28 October 2002, unreported.

Here the Court declined to invoke the proviso where comment upon defence witnesses and a suggestion that disbelief of such witnesses would strengthen the Crown case was held to constitute an inappropriate instance for invoking the proviso. Beazley JA, with whom Spurling J and Carruthers AJ agreed, said of the comments in the trial judge’s summing up:

The Court applied the principles governing invocation of the proviso, identifying them as arising from two essential considerations. First, that the proviso will not be applied where the convicted person has “lost a real chance of acquittal”: R v Storey (1998) 140 CLR 364 at 376. Secondly, the question whether a reasonable jury would inevitably have convicted does not arise where the error is so fundamental such that “the proceedings have so far miscarried as barely to be a trial at all”: Wilde at 372-373. See also R v Bozzola (2001) NSWCCA 8; Glennon v The Queen (1994) 68 ALJR 209.

R v Ugochukwu [2003] NSWCCA 104, 2 April 2003, unreported.

Notwithstanding an apparent mistaken and irrelevant reference to an alleged “lie” told by the appellant, the Court confirmed that the remaining evidence in a circumstantial case was such that the jury “acting reasonably, would inevitably have convicted the appellant” (at para.40, per Spigelman CJ, Dunford and Hidden JJ agreeing). The case stands as confirmation for the principle that, in an appropriate instance a circumstantial case is no barrier to the Court invoking the proviso in favour of the Crown.

R v Giri [No.2] [2002] NSWCCA 234, 25 June 2001, unreported.

This was an instance where the proviso was invoked but without specific indication at the hearing of the appeal. The appellant sought to reopen the appeal but the Court rejected any justification in the complaint that there had not been specific warning that the proviso was to be considered.

R v Bozkus [2001] NSWCCA 68, 5 March 2001, unreported.

The trial judge gave direction as to the failure of the appellant to give evidence. At the time the direction was given, pursuant to Weissensteiner v The Queen (1993) 178 CLR 217 and OGD (1997) 45 NSWLR 744 represented a correct statement of the law. Subsequent to the trial, the High Court gave judgment in RPS v The Queen (2000) 199 CLR 620. Whilst not overruling Weissensteiner, RPS modified the basis upon which comment could properly be made concerning a decision by the appellant not to give evidence. In the circumstances, the matter not being one where it would be reasonable to conclude that the accused person would have been expected to give evidence (per RPS at 27), he was denied the opportunity of a more favourable direction. In the circumstance, the direction, rendered erroneous ex post facto, created a situation where it was not appropriate for the application of the proviso.

R v Phuong Van Nguyen [2000] NSWCCA 285, 22 August 2000, unreported.

Notwithstanding a very strong Crown case in a drug supply case, a failure to give proper directions concerning identification, as sought by counsel, was held to be fundamental to the trial. Notwithstanding that the appellant’s denial of complicity in a case where he was allegedly in possession of a drug-filled balloon was described as “fanciful” and the strengthened position of the Crown by tender of such evidence of the first trial on a new trial, the Court declined to invoke the proviso. At paragraph 20, Kirby J said:

The Role of Counsel

In determining whether a real chance of acquittal has been lost, or simply that the appellant has adopted one of a number of, perhaps equally ineffective, forensic options by giving away other options, the Court is often led to examine the motives of counsel involved. As a primary position, it is well settled that an appellant is, generally speaking, bound by decisions taken by trial counsel in the exercise of his or her forensic discretion (see Ratten v The Queen (1974) 131 CLR 510. Even incompetent errors do not necessarily guarantee success on appeal, although flagrant incompetence may result in a finding that there has been a miscarriage of justice (see R v Birks (1990) 19 NSWLR 677 at 683-685). In a sentence, and at trial, the increments between the options taken, incompetence and flagrant incompetence, may be fine and one continues to have regard to whether the error was such as to result in a fundamental denial of a fair trial. In Birks, for example, the appeal was allowed where counsel commendably established by affidavit that he had made a fatal error, in failing to cross examine a Crown witness as to a vital issue, which was then turned to the advantage of the Crown. In recent years, there has been something of a divergence of opinion in the Court of Criminal Appeal as to the utility of affidavits from counsel, seeking to explain the reasons for particular courses taken in the court below. In R v Hines (1991) 24 NSWLR 737 at 743, Sully J, with whom the other members of the Court agreed, stated:

In R v Moussa [2001] NSWCCA 427, 15 November 2001, Howie J expressed the view that, commendable though it may have been, Sully J’s purpose “has not been realised to any significant degree, if at all”. Later, his Honour observed (at para.58):

One observes that, whilst it is often the case that there is little utility in the content of trial counsel’s affidavits, one should nonetheless always seek to determine whether there is some relevant and helpful explanation for an otherwise inexplicable neglect or damaging option taken by trial counsel. One of the difficulties is, if one goes beyond an initial enquiry as to matters that may have arisen at trial, the likelihood is that the trial counsel will adopt a self-defensive attitude, should advising counsel make contact with him or her. It would be my practice, if identifying an obvious error or omission, not to speak directly to counsel in such circumstances. The appropriate course is to settle a letter in very specific terms whereby one’s instructing solicitor asks:

Often, of course, the reason given will neutralise any prospects. Sometimes it will put one in the position of determining whether or not counsel should be asked and, if necessary, required to put on an affidavit. Where there is the raw material to establish that counsel has something relevant to say in the appeal, which would otherwise be impeded, the Court may make orders to compel an affidavit or, where appropriate, to attend and give evidence (see R v Jeffries [2000] NSWCCA 81, 16 March 2000; R v Shalala [2002] NSWCCA 461, 1 November 2002.

R v Ung (2000) 112 A Crim R 344.

This case is an example of an unmeritorious reason being raised on appeal, when seeking to explain a failure to obtain directions and seeking leave to argue matters on appeal. The case was one in which the Crown sought to rely upon evidence of a co-accused. Upon request, there was an entitlement to obtain a warning as to accomplice evidence. In the event, no such warning was sought, although if sought it should have been granted. The Court identified “the only live issue at the trial” as being the appellant’s knowledge of the existence of particular drugs. For that and other reasons, the knowledge of an alleged accomplice, whilst of some relevance, was not central. It had not been argued at trial that the act of importing heroin had not taken place; nor was it argued that the appellant was not involved. The essential question was one of knowledge and whether there was a joint enterprise with the accomplice. On one view, the failure to seek a warning may have been beneficial, not withstanding that counsel’s affidavit stated:

Sometimes a bona fide tactical decision will result in a situation that either harms or does not advance the appellant’s interests at trial. Whether such a decision provokes the proviso or Rule 4 is again determined with reference to a fundamental requirement that a fair trial be obtained. Part of a fair trial is the existence of a choice in the appellant to advance his case in a way that counsel may reasonably determine in taking a number of available choices. A wrong choice does not, of itself, sustain an arguable appeal. There is an interesting examination of these principles and an example of potentially prejudicial evidence being admitted without objection and without resultant success on appeal in R v Melhuish [2002] NSWCCA 85, 8 March 2002, unreported.

R v D (1996) 86 A Crim R 41.

This was an example of the kind of issue where the failure of counsel to exercise an option was held to be of such an order as to deny the appellant a real chance of acquittal. Counsel had raised good character but failed to call a number of witnesses who were prepared to give impressive direct evidence of character. This became particularly apparent when statements from some of those witnesses were then tendered on sentence. Hunt CJ at CL observed:

And later:

D is to compared with R v Grey [2000] NSWCCA 46, which is an interesting case where there was a divergence of opinion in the Court as to the impact of failing to cross examine on the fact that a police informer witness had received consideration. As a classic illustration of how each case must be assessed on its own facts, Simpson J found herself in a minority in determining that knowledge of the advantage accruing to the witness was sufficiently central “that the unavailability to the defence of the evidence might have caused the appellant to lose a fair chance of acquittal: R v Mraz [No.1] (1995) 93 CLR 493.”

Grove J, with Sully J, made reference to tests articulated in Mickelberg v The Queen (1998) 167 CLR 259 in the joint judgment of Toohey Gaudron JJ where at 301, their Honours said:

Citing the above authorities, his Honour had reference to the fact that the witness had been available for cross examination at committal proceedings and was of the view that it was

His Honour concluded:

The above and other authorities supports the view that one must approach the issue of apparent errors and omissions by counsel at trial with and open mind, caution and the application of a constant standard that the vital question is whether a real chance of acquittal was lost, other than an option taken in a setting in which there was, perhaps in any event, a finding of guilt.

Sentence Appeals

The most difficult challenge in advising on sentence appeals is understanding and conveying an understanding of the error principle, which activates intervention by the Court, and the restriction constituted by s.6 (3) of the Criminal Appeal Act 1912. The essence of the error principle may be found in House v The King (1936) 55 CLR 499. In House, Dixon, Evatt and McTiernan JJ, said:

The errors that I have elsewhere described as “patent” or “latent” have also been described as “specific” or “residual” in the sentence context. In either case, what is required is, either the triggering mechanism of an identifiable error of principle or its application or, what is in some ways a more accessible error, a sentence that on any view should not have been applied in the circumstances.

Specific Errors

The law of sentencing is extraordinarily complex and growing more so. Any judge, regardless of experience and expertise, is bound to make an error of a technical nature at some stage in his or her sentencing career. Unfortunately, for prospective applications for leave to appeal against sentence, many patent errors are of no operative impact in the appellate setting. It is one thing to activate the Court’s consideration of intervention and quite another to pass through the effective filter of s.6 (3) of the Criminal Appeal Act. The section provides that:

Common Errors in Trials and Sentences

The climate of the Court of Criminal Appeal changes as particular problems arise, often through time that it takes trial courts to assimilate and evenly apply new legislation, Guideline Judgments or decisions of the appellate courts. There is no such thing as a perennial appellate fashion or an error that will always see a verdict or sentence quashed but there are matters that have had recurrent prominence, such that advising counsel should certainly be alert to identify them and consider whether they found a reasonable prospect of appellate remedy. I have catalogued but a few of the matters that have consistently arisen for consideration in many briefs to advise.

In appeals against conviction no area appears to offer as consistent and persistent an opportunity for error as the distressing area of sexual assault, in particular those involving complainants who were very young at the time of the alleged offence and where delay in complaint and absence of corroboration commonly figure.

`A conviction after trial that involved any of the above matters requires careful consideration of whether the jury has been warned of the detriments occasioned to the accused position and in the specific terms mandated by the High Court in Longman v The Queen (1989) CLR. Any diminution of the full judicial authority with which such warnings should be given is a serious miscarriage of itself. At some stage counsel advising where there has been a trial involving any of the above issues should read both Longman or at least the judgments of Wood CJ in CL and Sully J in R v B.W.T. (2002) 54 NSWLR 241.

A list of common, but again not exhaustive, errors by sentencing judges would include:

Of all the above, one of the most productive of appellate argument has been the issues in Pearce, where the High Court presented subordinate courts with an ideal requiring the individual assessment of each constituent offence in a number for sentence, requiring as a final step consideration of factors of totality, to be reflected in degrees of concurrence or accumulation. Unfortunately, the Court did not give a great deal of guidance as to factors that should affect the balance between concurrence and accumulation. There has been much consideration of the complexity arising thereby: see Hammoud (2000) 118 A Crim R 566; Itamua [2000] NSWCCA 502, 4 December 2000, unreported; R v Gorman [2002] NSWCCA 516, 28 October 2002, unreported. Gorman is of particular interest, in that the judgment of Sperling J suggests, with some uncomfortable logic, that it may be inappropriate ever to apply wholly concurrent sentences and that the simple old argument of “one course of criminality” may not stand alongside a proper application of Pearce.

Manifest Excess

In my experience this is the ground most commonly successful but often most misunderstood. Not all errors occasioning intervention have led to a manifestly excessive sentence. Some patent errors of law or fact vitiate the sentencing process and call for consideration of whether a different sentence is required. Manifest excess is another category flowing from a latent error in the sentencing discretion where the Court assesses the outcome as exceeding the most that should have been imposed. The assessment of manifest excess is an essentially subjective and instinctive judgment. The claim of manifest excess will only be successful where on its face the sentencing outcome exceeded the notional range open in sentencing judge’s discretion. The fact that other like offenders have received less for the commission of like offences does not make out the case, nor does simple variation from the limited assistance that may be obtained from the Judicial Commission’s statistics (R v Bloomfield (1998) 44 NSWLR 734).
The Court’s approach is consistent with long established authority that its members should not merely substitute its own assessment of what could have been an appropriate sentence, absent a conclusion that the primary judge was bound to have arrived at a lesser sentence than that imposed (Skinner v The Queen (1913) 16 CLR 336.

Fresh Evidence on Sentence Applications

It is most frequently the case that something has arisen since sentence, upon which an applicant would now seek to rely on appeal. The general power of the Court to receive fresh or new evidence where the interests of justice require that Court have been frequently affirmed to apply to sentence applications as readily as to conviction appeals. The same circumspection is required in assessing whether such material passes the test, the test not being fundamental to fair proceedings. In R v Flavell [2002] NSWCCA 220, 3 June 2002, unreported, there was an unusual example of the Court taking the view that material that should have been before the sentencing judge had been neglected but this was not to be to the ultimate detriment of the applicant. Absent the material, which was in a psychologist’s report obtained for a bail hearing but neglected at sentence, there was no apparent nexus between the applicant’s very serious assault with an offensive weapon and any condition. The combined circumstance of the material, in effect, being known to the Court (in the sense that it was on file in the Local Court) and a manifest procedural unfairness in the neglect to use it, the Court intervened. This was an unusual case and an illustration of how there may be more than one way to obtain a remedy.

Section 6(3)

The following passage from the judgment of Sully J R v Simpson (2001) 126 a Crim R 525 [79] is a particularly succinct summary of the effect of s.6(3):

“Sentencing appeals in this Court frequently proceed as if the statutory trigger for the quashing of a sentence were expressed as follows: "If it is of the opinion that error has occurred in the sentencing process." That is not the statutory formulation. By s6(3) this Court must form a positive opinion that "some other sentence … is warranted in law and should have been passed". Unless such an opinion is formed, the essential pre-condition for the exercise of the power to "quash the sentence and pass such other sentence in substitution therefore" is not satisfied. As the judgments in Dinsdale(2000) 202 CLR 321 per Gleeson CJ and Hayne J at [3]) to which I have referred indicate, the exercise of the power in s6(3) further requires the identification of error in the requisite sense. Sentencing appeals in this Court frequently proceed as if the statutory trigger for the quashing of a sentence were expressed as follows: "If it is of the opinion that error has occurred in the sentencing process." That is not the statutory formulation. By s6(3) this Court must form a positive opinion that "some other sentence … is warranted in law and should have been passed". Unless such an opinion is formed, the essential pre-condition for the exercise of the power to "quash the sentence and pass such other sentence in substitution therefore" is not satisfied. As the judgments in Dinsdale to which I have referred indicate, the exercise of the power in s6(3) further requires the identification of error in the requisite sense.”

This provision provides the most challenging obstacle to success, providing as it does that some other sentence will not be passed, unless it is “warranted” in the view of the Court of Criminal Appeal. In passing, one notes that another sentence passed in such circumstances can be greater or lesser but is not in practice greater in the absence of a Crown appeal, unless as part of a general re-working of corporate sentences in order to give an applicant relief in aggregate result. Whilst, in a conviction advice, one is very reluctant to ever cite the proviso as being a reason for finding no merit in a conviction appeal, the position with s.6(3)(a) that some other sentence is not warranted, notwithstanding error, is decidedly different. There are a number of formulations to explain the workings of s.6(3) and a recent matter in which I was unsuccessfully involved serves as readily as many others to illustrate the potent difficulty raised by s.6(3): In R v Bryant [2003] NSWCCA 34, 21 February 2003, I appeared for a young applicant with a lengthy history of drug addiction and related offending. He had committed what was a fairly low-order R v Henry-type robbery. He walked into the local bread shop early on a Sunday morning armed with a knife. He took the knife from his pants pocket and said, “Can you fill the bag, I’m very hungry”. The shop owner moved back from the counter and looked for something to use for protection. The applicant then turned and ran from the bakery. He was pursued for a short distance and then apprehended. The factual background was quite compelling, in that the applicant was in fact hungry. After prior custody and various misfortunes, he and his brother had moved into a flat together because their mother had determined it would be “good for them”. Unfortunately, whilst in employment, the applicant faced the twin burdens of supporting his brother, who was failing to meet the rent, and attending a methadone programme. Methadone programmes are evidently not designed for people who are in employment and as a result, arriving home late from work on a Friday, the applicant missed his methadone and faced the weekend “hanging out”, hungry and effectively destitute. A local chemist gave him Valium, to counteract withdrawal, but that produced very unpleasant side effects. It was in these circumstances that he was presented as someone whose rehabilitation was underway but had stumbled under multiple economic and other pressures. One would have hoped for some movement in the District Court sentence of 5 years with a non-parole period of 3 years. The Court strictly applied s.6(3), translated in this instance by the formulation of James J (Greg James J agreeing) when his Honour stated:

At first blush, this formulation is somewhat shocking, and indeed I found it so. On reflection, it is however an inescapable formulaic outcome of s.6(3). Such outcomes also point to the care with which one should approach a matter with reference to the statistics available from the Judicial Commission. Neither a feeling that the client might have done better, nor an indication in the statistics that other clients have done better, will of necessity raise a likelihood of success.

Some Appeals on the Fringe

Conviction Appeals after a Plea

This rather strange concept is in fact open where there is evidence of that a plea was not entered voluntarily or was otherwise tainted by such factors as mistake as to the procedure representing an admission of guilt. These appeals are notoriously difficult to mount and require compelling evidence, usually in person by the appellant and his representative. The relevant principles are conveniently reviewed in R v Toro-Martinez 114 A Crim R [2000] 533.

Appeals from the Drug Court

Appeals from the Drug Court are governed by s.5AA of the Criminal Appeal Act. The appeal is heard by one judge of the Supreme Court, sitting as a judge of the Court of Criminal Appeal. Even when the Drug Court has been exercising the jurisdiction of the District Court, the appeal is on the merits of the evidence before that Court (see R v Alexander (2001) 118 A Crim R 350. Importantly a re-hearing on the merits does not involve the error principle.

Overview of the Merit-Finding Task

The assessment of merit is a somewhat uncomfortable task for counsel imbued with the proper view that everyone deserves a day in court. There is a very strong whiff of pre-judgment in the task. One recognises that there is a public interest in seeing that the deserving and are not neglected because the unmeritorious have managed to find a place further towards the front of the queue. It is not my task to justify the process that is undertaken, whilst recognising that it is probably unavoidable and certainly necessary as legal aid is presently operated. Notwithstanding the barriers represented by a need to find more than, as one might ordinarily advise, an arguable case the Legal Aid Commission still manages to fund a very large number of appeals each year, many with the assistance of counsel’s merit advices.

Chris Craigie SC
Deputy Senior Public Defender