Colley v WA

[2015] WASCA 79

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Appeal
3. › Miscarriage of justice
4. › Conduct of counsel at trial
5. › Whether defence case conducted contrary to instructions
6. › Whether appellant deprived of fair trial
7. › Whether appellant acquiesced in counsel's conduct
8. › Criminal Code (WA), s 281
1. Criminal Law
2. › Appeal
3. › Miscarriage of justice
4. › Conduct of counsel at trial
5. › Scope of rule that party bound by conduct of counsel
6. › Whether conduct contrary to instructions gives rise to miscarriage of justice
7. › Process and outcome aspects
1. Criminal Law
2. › Appeal
3. › Evidence on appeal
4. › Leave to adduce new evidence
5. › Evidence as to dealings between accused and trial counsel
1. Legal Profession
2. › Duties of counsel
3. › Scope of implied retainer
4. › Whether counsel may put positive defence inconsistent with client's instructions
5. › Browne v Dunn

Quick Take

An accused who acquiesces in trial counsel's conduct of the defence throughout the trial — hearing and understanding counsel's strategy without objection — will face significant credibility difficulties in later claiming that counsel acted contrary to instructions. The scope of counsel's implied retainer does not extend to conducting a positive defence inconsistent with the accused's instructions as to what actually occurred. All three judges expressed doubt (without deciding) whether counsel may ethically put such a defence even with the client's consent.