A conviction will not be set aside on the ground of incompetent defence counsel unless the conduct constitutes 'flagrant incompetence' — obvious, shocking ineptitude — that deprived the accused of a significant possibility of acquittal. An error of judgment, even one that most competent counsel would not have made, is insufficient; there must be something in the conduct that could never be thought by competent counsel to be of any possible advantage to the accused. Appellants alleging counsel incompetence should approach former trial representatives for supporting evidence and provide detailed affidavit material addressing the circumstances of the impugned decisions, rather than inviting the court to draw inferences. Legal professional privilege is waived in respect of communications concerning the aspects of trial conduct said to be incompetent.
The full text is available to signed-in members, including the 19 later cases that cite this judgment.
9 of the 19 citing cases carry a classified treatment. How each court treated it is available to signed-in members.