Following TKWJ v R, the proper test when miscarriage of justice is alleged by reason of defence counsel's conduct is whether there could be a reasonable explanation for the act or omission of counsel; it is no longer necessary to determine as a preliminary question whether counsel's conduct was 'flagrantly incompetent'. R v ND should not be read as inviting broad appellate inquiry into defence tactics with the benefit of hindsight. Where counsel advises against giving evidence after assessing the prospects of that evidence credibly rebutting the Crown case, it will be a rare case in which an appellant succeeds on this ground.
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