Keim, Stephen --- "Advocacy in criminal appeals" [2020] PrecedentAULA 27; (2020) 158 Precedent 10

---

ADVOCACY IN CRIMINAL APPEALS

By Stephen Keim SC

This article looks at those aspects of advocacy that are of particular relevance to criminal appeals. There are, of course, skills and abilities that are required in all aspects of advocacy, including the conduct of criminal appeals. There are also obstacles to being a good and effective advocate that apply across all areas of advocacy.

Compared to most fields of endeavour, the art of advocacy is unique in that we have few, if any, opportunities to do rehearsals for our performances. As advocates, we are always broadcasting live.

ADVOCACY: ‘THE GETTING OF WISDOM’

The music teacher sits her student in front of a piano and takes her through the next piece. The student goes home and practises the piece, endless times, and returns to the critical gaze of the teacher to be cajoled and corrected and critiqued before returning to the practice arena for another week. And so on until the performance of the piece is close to perfect.

Along the way, the student picks up substantive knowledge: new notes and new chords and new combinations of each. The student learns new skills: finger placements, dynamics, colour, and shades of expression. And the student develops the ability to perform that piece, an ability that can be maintained over the years with a modicum of practice.

In most performance activities, even the accomplished in the field continue to have coaches or teachers who help them to make adjustments and improvements to ensure that their next performance is as good as, or even better than, their last.

Advocates are our own teachers and, especially, our own coaches. No one raps us on our knuckles while explaining how we might have played that last chord more accurately or emphatically. We practise in front of the courts and tribunals we are trying to persuade. Maybe, we improve our skills and abilities with experience, but we may also entrench poor techniques and bad habits by becoming comfortable with them. Indeed, we rarely think about the improvements and adjustments that might make us perform better.

All that most of us have is the opportunity to reflect. Did we answer the judge’s questions or did we try to change the subject or turn to bluster? Were there things that we could adopt to make our opening words in future more appealing?

Reflection is an advocate’s best friend.

WHAT IS SPECIAL ABOUT CRIMINAL APPEALS?

The moment we turn from discussing appellate advocacy in the abstract – how to best persuade three persons in authority that the propositions pressed on them should be accepted – to how a particular kind of appeal should be conducted, the discussion of advocacy becomes very much one about the rules of procedure and the substantive principles of law that apply to the issues raised by the appeal.

So, when we turn to a discussion of advocacy in criminal appeals, we need to consider the grounds on which a jury’s verdict may be set aside and the principles involved in overturning a judge’s or magistrate’s decision in criminal cases.

APPEALS FROM A JURY

It is trite that an appeal from a jury’s decision to convict the accused is different to most other appeals because a jury’s verdict consists of one unfortunate word: ‘guilty’. In most other appeals, both the appellant and the respondent have the reasons of the court or tribunal to rake over for error or for saving elements. No such opportunity exists in respect of the jury verdict.

On the other hand, most jury trials produce a lengthy record of proceedings providing, on many occasions, hundreds of pages of transcript through which an advocate may carefully trawl, looking for error.

A clue to the nature of the errors that may lead to a successful (or at least an arguable) ground of appeal may be gathered from the section in legislation which grants the courts their powers when deciding an appeal.^[1] Section 668E(1) of the Criminal Code 1899 (Qld) (the Code) provides that the Court of Appeal (Qld) shall allow an appeal against conviction if it is of the 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;

• the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law; or

• on any ground, whatsoever, there was a miscarriage of justice.

The powers of the Court of Appeal are qualified by the proviso in s668E(2) of the Code which provides that, notwithstanding that the Court is of the opinion that the point or points raised by the appeal might be decided in favour of the appellant, the Court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.

It would seem from s668E(3) of the Code that the usual result of a successful appeal against conviction is that a verdict of acquittal replaces the conviction resulting from jury’s guilty verdict. However, it is much more likely that, on most successful appeals, the power bestowed by s669 of the Code will be exercised to order that the successful appellant will face a new trial.

WRONG DECISION OF ANY QUESTION OF LAW

The primary role of a criminal appeals advocate is to find a strong ground of appeal. Finding the right ground of appeal is, perhaps, the most important task in any appeal, actual or proposed. This usually requires trawling through the transcript of the trial, paying particular attention to the trial judge’s summing up; to any ruling on questions of law, including those relating to the admissibility of evidence during the trial; and to the rulings in pre-trial applications made, perhaps, months before the actual trial.^[2]

The phrase, ‘wrong decision of any question of law’, comprehends a multiplicity of errors that might be made by a judge presiding at a criminal trial. The most obvious source of such error is the summing up to the jury.^[3] An error in the summing up is very capable of leading to an injustice and such errors are capable of giving rise to viable grounds of appeal.

A summing up draws upon, but hides within it, a great deal of substantive law. The judge must identify and explain to the jury the elements of the offence charged. If a defence is one that is open on the evidence,^[4] the judge must explain the elements of the defence and how it may be applied.

The trial judge may also have to explain to the jury how certain aspects of the evidence may be used. There are rules about what use a jury may make of lies told by an accused person,^[5] both in their evidence to the court and in statements made outside the court. Admissions by a co-accused placed before the court may not, normally, be used by the jury against another defendant.^[6] The trial judge must explain the onus of proof (and the presumption of innocence) to the jury with regard to both the elements of the offence charged^[7] and the elements of the defences which may arise.^[8]

It follows, both with regards to identifying grounds of appeal and in presenting arguments to the court, in written submissions and orally, that an appeals advocate must have a good knowledge of, or access to, the substantive law applying to the prosecution of criminal offences, including criminal procedure laws. In an electronic age, every advocate has their own favourite methodology for researching and accessing the law. However, increasingly, courts and tribunals are preparing and publishing bench books which deal thoroughly with the legal issues that arise in proceedings before them.

Again, by way of example, the Supreme and District Courts Criminal Directions Bench Book^[9] (the Bench Book) is a well-structured and electronically searchable step-by-step guide to the conduct of a criminal trial for both advocates appearing in the trial and the presiding judge. An advocate running a critical eye over what happened at a trial which resulted in an adverse verdict for their client will also be able to use the principles set out in the Bench Book to assess their client’s prospects of success in an appeal.

The search for viable appeal grounds needs to be accompanied by a keen sense for the dynamics of a jury trial, generally, and the particular trial which is the subject of the search. Points not taken by defence counsel in the trial are difficult to raise successfully on appeal.^[10] Strictly inadmissible evidence may have been allowed to be admitted because it suited all parties’ cases. A particular error in one trial may be of no forensic significance while, in the different circumstances of another trial, it may be crucially important.

The dynamics of the trial includes the strengths and weaknesses of the Crown case. In deciding whether or not a substantial miscarriage of justice occurred and, therefore, whether the proviso in s668E(2) of the Code applies to dismiss the appeal, the appeal court will be acutely aware of the strength of the Crown case. A key aspect of the task of the appellant’s advocate is – having found an error in the summing up or some other part of the conduct of the trial – to identify for the appeal court how that error made an important difference to the way the jury might have approached their task so as to deny the appellant the chance of an acquittal.^[11] This may involve conveying the dynamics of the trial; identifying weaknesses in the Crown case; or identifying ways in which the jury may have been deflected from a fair and proper consideration of the evidence. This process starts with identifying the grounds of appeal, but continues in the process of arguing the appeal both in writing and orally.

MISCARRIAGE OF JUSTICE

The course of a criminal jury trial does not always run smoothly. The fairness of a trial may be affected by matters other than rulings by the judge.^[12] A witness may blurt out inadmissible material in front of the jury. Disclosure of information and documents by the Crown may be found to have been insufficient in some way. The trial might be held up for an unacceptably long time by illness suffered by members of the jury, counsel or the judge. Jury members may have impermissibly had recourse to material on the internet during the trial.^[13]

Incidents of this kind may come to the notice of the judge and may be dealt with by giving specific instructions to the jury. Whether these directions were sufficient to counter the injustice otherwise resulting may still be an issue that can be raised on appeal.

Assessing the strength of, and arguing, an appeal ground based on other potential sources of unfairness in the trial may also involve researching case law relating to similar incidents in the past. There will also, in this area, be a particular need to assess and convey the dynamics of the trial. An incident in a short trial may be much less important than in a trial that goes for weeks. An incident at the very beginning or the very end of a trial may be more significant than one that is lost in days of listening to gruelling evidence.

These are matters of judgement, understanding and appreciation, which the advocate may also need to carefully communicate to the judges of appeal, whose understanding of the effect of an incident on the trial may be more limited than the advocate’s.

VERDICT IS UNREASONABLE OR CANNOT BE SUPPORTED BY THE EVIDENCE

The High Court has explained that this ground of appeal requires the appellate court to consider the whole of the evidence for itself. If, after allowing for the advantages of the jury in hearing the evidence in person, the inadequacies of the Crown case are such that the appeal court has, itself, a reasonable doubt, then it should set aside the verdict of the jury as being unreasonable or unable to be supported by the evidence.^[14] The ground is often referred to as the unsafeness ground because the underlying thinking is that the inadequacies of the evidence make it unsafe for a person to be convicted and punished on that evidence.

An argument that relies on the ground that a verdict is unsafe is often seen by appeal judges as a desperate port of last resort for appellants and, therefore, the way in which it is presented to the appeal court requires particular attention.

The finding of an unreasonable verdict requires a consideration of all the evidence. This means that the advocate for the appellant must, fairly, apprise the appeal court of the whole of the evidence. However, presenting reams of evidence summary will merely highlight the strength of the Crown case and make the judges uninterested in your point.

Most unsafeness arguments focus on a particular aspect of the evidence. In an appeal involving sexual misconduct, there may be discrepancies in the complainant’s evidence which go beyond what one might expect in truthful and mainly reliable recall. A circumstantial case of murder may lack motive, or an alibi may have been unreasonably rejected. Sometimes, identification evidence may be insufficiently reliable to found a conviction.

Both in formulating the grounds of appeal and in writing written submissions, it is important to explain, first and foremost, why the verdict being appealed is unsafe. In the written submissions, that should be done in conjunction with conveying an outline of the balance of the Crown case. This can be done by conveying the unchallenged part of the Crown case in a few sentences (albeit, fairly and with accurate citations to the evidence) and by outlining in considerable detail the challenged part of the case, emphasising the unsatisfactory parts of that evidence and why it is important to the Crown case as a whole.

Much advocacy is done in appeals, particularly in criminal appeals, by presenting the facts and evidence in a way that highlights the point that the advocate is seeking to make. Simply by creating a context and framing, your opponent’s difficulties can be emphasised and the strengths of your client’s argument can be impressed upon the audience.

Unsafeness appeals are difficult to win. Nonetheless, they are extremely important to the criminal justice system. Juries, as the judge of the facts in criminal trials, are of foundational importance to a fair society.^[15] But juries can get the facts wrong for a plethora of reasons including, on some occasions, prejudice against a defendant, for example someone who is accused of horrendous crimes. The ability to frame and present unsafeness appeals in a persuasive manner is therefore important to the maintenance of a fair and just criminal justice system.

APPEALS FROM A MAGISTRATE OR JUDGE WITHOUT A JURY

The important difference between an appeal from a jury’s verdict and an appeal from a decision of a magistrate or a judge sitting without a jury in criminal matters is that the appellant has a set of reasons from which the reasoning of the decision-maker can be discerned. Errors in that reasoning process may also be able to be discerned. These errors can be mistakes of law, errors in assessing the evidence, and even errors in understanding and stating the evidence correctly.

Section 222 of the Justices Act 1886 (Qld) (Justices Act) allows both complainants and defendants to appeal against orders of a magistrate deciding whether a person is guilty of an offence or breach of duty. Section 233 of the Justices Act provides that such an appeal is an appeal by way of rehearing on the evidence, which allows the advocate to take a broad approach to convincing the appeal court that the matter below should have been determined differently.

A criminal appeal of this kind is most analogous to a civil appeal. While the substantive law and the onus of proof are those appropriate to a criminal trial, the search for viable appeal grounds can draw upon the judge’s reasons as well as on the record of evidence. While the appeal court will have due regard to findings on credibility and the benefit of having seen and heard the witnesses enjoyed by the lower court,^[16] the rehearing nature of the appeal allows the appeal court to bring a fresh mind to the question of the correct determination of the matter.^[17]

CONCLUSION

Advocacy in criminal appeals requires thoroughness; a good knowledge of the applicable law and procedure; and the ability to think strategically about the way in which an appeal court will come to its task of determining the appeal.

Good advocacy in criminal appeals involves finding grounds of appeal that raise issues of real importance in the context of the whole of the evidence and the dynamics of what happened in the trial.

Clear thinking when first analysing the record and identifying appeal grounds will lead to clear thinking and persuasive argument when presenting the appeal to the judges who are to decide it.

Stephen Keim SC is a barrister at Higgins Chambers, Brisbane. PHONE [phone] EMAIL [e-mail].

---

^[1] I have used Queensland legislation by way of example. The legislation and the underlying principles applying to criminal appeals are largely similar among the various Australian jurisdictions. An advocate, of course, is well advised to be familiar with the legislation and case law of the jurisdiction in which they are working.

^[2] Pursuant to the Criminal Code 1899 (Qld) (the Code), s590AA.

^[3] After the evidence is concluded and the counsel have addressed the jury, it is the duty of the judge to instruct the jury as to the law applicable to the case, with such observations upon the evidence as the judge thinks fit to make: the Code, s620.

^[4] See eg, self defence to an unprovoked assault in s271 of the Code, which may in certain circumstances provide a full defence to the offence of murder.

^[5] See R v Box & Martin [2001] QCA 272.

^[6] Youth v The King (1945) WN 27.

^[7] Generally, beyond reasonable doubt.

^[8] Some defences, eg, mistake of fact must be negatived by the Crown beyond reasonable doubt: the Code, s24. On the other hand, the defence of provocation to a charge of murder must be established by the defence on the balance of probabilities: the Code, s304(9).

^[9] Available to download at <https://www.courts.qld.gov.au/court-users/practitioners/benchbooks/supreme-and-district-courts-benchbook>.

^[10] See Crampton v The Queen [2000] HCA 60; (2000) 176 ALR 369.

^[11] This test for miscarriage of justice was expressed in Mraz v The Queen [1955] HCA 59; (1955) 93 CLR 493, 514 and McInnis v The Queen [1979] HCA 65; (1979) 143 CLR 575, 583.

^[12] Although the trial judge may then have to make a ruling as to how to deal with the incident.

^[13] See Marshall & Richardson v Tasmania (2016) A Crim R 448.

^[14] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493–4.

^[15] This is a point made in the leading case on unsafe verdicts: M v The Queen [1994] HCA 63; (1994) 181 CLR 487.

^[16] The principles concerning the way an appeal court should approach a trial judge’s finding on credibility of witnesses is discussed in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118.

^[17] Despite the flexibility of an appeal by way of rehearing, normally to be successful the appellant must establish that the magistrate made some kind of error: Hainaut v Queensland Police Service [2017] QDC 208, [8].