Where an accused's decision not to give evidence is based on positively incorrect legal advice (as opposed to a rational tactical judgment), the resulting conviction may be set aside as a miscarriage of justice under s 668E(1) of the Criminal Code (Qld), even where the advice does not amount to 'flagrant incompetence'. The majority distinguished between advice based on legal error and advice reflecting forensic judgment. The dissent would have applied the objective test from TKWJ v R, asking only whether there was a reasonable explanation for the course taken, regardless of errors in the underlying reasoning. The question of whether the objective or subjective approach governs remains contested.
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