Ronald Michael Craig v The Queen [2018] HCA 13: Incorrect Legal Advice

Today in Ronald Michael Craig v The Queen [2018] HCA 13 (21 March 2018), the High Court of Australia has unanimously dismissed an appeal from the Court of Appeal of the Supreme Court of Queensland (see R v Craig [2016] QCA 166 (21 June 2016)) finding that incorrect legal advice had not adversely affected the outcome of the decision against the appellant.

Background Facts

The appellant was convicted of having murdering his partner on or about 21 January 2011.  The relationship between the appellant and the deceased was reported as being one “characterised by the heavy consumption of alcohol” and involving domestic violence. The appellant attended the Brunswick Heads Police Station on 22 January 2011, where he admitted that he had cut the neck of the deceased, thereby, killing her. 

The appellant’s recorded interview with the police recorded that the appellant had stated that he and the deceased had been drinking alcohol on the night of 21 January 2011 and  a disagreement had resulted. During the disagreement the deceased had picked up a knife and that appellant had disarmed her, cutting her on the neck ". . . in the heat of the moment". 

At Trial

The appellant's case at trial was that he had not intended to kill or cause grievous bodily harm to the deceased.  The appellant’s case relied on his account of what had happened in the police interview raising a doubt that in his intoxicated state he formed the required intent to make his act murder. 

The appellant did not give evidence at trial, having been advised, incorrectly, by his counsel that if he gave evidence it was likely that he would be cross-examined on his criminal history. The appellant’s criminal history included a conviction for a fatal stabbing.  In addition, his counsel had also (correctly) advised him that if he gave evidence that was consistent with a written account he had given to his solicitor, he would be cross‑examined on the inconsistencies between that account and the account given in his police interview.  As a result the appellant instructed both his solicitor and counsel that he did not wish to give evidence and that they should run his case on the “narrow issue of intent”. 

Court of Appeal

The appellant contended on appeal that his trial had miscarried because his decision not to give evidence was based on incorrect advice, namely that, if he gave evidence, it was likely that this would lead to disclosure of his criminal history, and to his being cross-examined.  The Court of Appeal rejected the appellant’s appeal, holding that there was “. . . a sound forensic reason for the appellant not to testify” and that as a result there had been no miscarriage of justice. 

Appeal to the High Court

The appellant was granted special leave and appealed to the High Court.  In the High Court the appellant submitted that the Court of Appeal had erred in “. . . applying an objective test to the determination of whether there had been a miscarriage of justice”.  The appellant argued that the incorrect advice had deprived him of the capacity to make an informed choice to testify. 

The High Court found that the necessary test for whether there had been a miscarriage of justice was not whether there was an objectively rational justification of the decision not to give evidence.  The High Court found that what was required was to consider the nature and effect of the incorrect legal advice on the decision.

To conclude that there had been a miscarriage of justice required an appellate court to be satisfied that it was the accused's wish to give evidence and that the incorrect legal advice effectively deprived the accused of the opportunity to give evidence. The High Court held that the Court of Appeal's conclusion, that there had not been a miscarriage of justice, was correct in the circumstances. The evidence did not establish that the appellant's trial would have been conducted differently had the incorrect advice not been given. 

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Ronald Michael Craig v The Queen [2018] HCA 13 (21 March 2018) and supporting materials.

R v Craig [2016] QCA 166 (21 June 2016)