Momoa v R [2020] NSWCCA 328

Momoa v R [2020] NSWCCA 328 · Read the judgment on AustLII

Catchwords: Appeals – Sentencing – Lawyer’s obligations where incompetence alleged

In this decision the Court of Criminal Appeal has clarified the obligations of a former lawyer where incompetence is alleged against them by subsequent lawyers.

The applicant pleaded guilty and was sentenced in the District Court in relation to aggravated robbery charges. He appealed his sentence on grounds which all ultimately turned on the asserted incompetence of his former lawyer, who was said to have failed to obtain evidence about assistance to authorities, and failed to obtain or adduce evidence about the applicant’s mental illness.

The solicitor had not provided an affidavit for the appeal, despite a request from the Crown. She did provide part of the file to the new solicitor but did not include conference notes and the like. She was slow to answer questions from the Crown which were specifically directed to the grounds of appeal. Literally on the eve of the hearing of the appeal, she sent the Crown an email attaching a small number of emails and providing brief answers to the questions that had been posed. There had been a waiver of privilege, signed by the applicant.

McCallum JA (Johnson and R A Hulme JJ agreeing) held that the solicitor ought to have provided an affidavit in response to the Crown’s request. There are number of reasons why it is appropriate for the Crown to seek an affidavit from a former lawyer in such a case. One is to afford the former lawyer procedural fairness, so that they can defend their conduct. More importantly, it is appropriate (and arguably a part of the duty of a prosecutor) for the Crown to try and obtain the most complete and reliable information about the circumstances, so as to be able to put that information before the court where it is relevant. A convicted person’s account may or may not be reliable – but the former lawyer’s evidence will be relevant too. Failure to obtain that evidence might leave the client less able to prove the factual basis for their appeal, or it might allow an appeal ground to be more easily established despite what actually happened; either scenario is apt to divert the course of justice (all at [4]-[5]).

It appeared that the former solicitor had been uncertain as to whether she should provide an affidavit in response to the request from the Crown. To put it beyond doubt, she should have (at [11]). No issue of client legal privilege arose, the client having waived it. The solicitor’s overriding duty was to the court. She may have thought that she should be communicating with the new lawyers for the applicant, rather than assisting the Crown, but that was misconceived because it is perfectly proper for the Crown to seek an affidavit in such cases – indeed, it is arguably more appropriate for it to be presented by the prosecutor, whose primary duty is to assist the court, rather than by the lawyer who is the one actually making the allegation of incompetence. It may be confronting or uncomfortable for a lawyer to give an account of their conduct in the face of alleged incompetence, but those feelings must give way to the interests of justice and the lawyer’s higher duty to the court (at [12]).

In the event, the correspondence (such as it was) did establish that important issues had been brought to the former lawyer’s attention, but had not been pursued at sentence. The appeal was upheld, in the unusual circumstances of this case the applicant’s case on sentence was re-run in the CCA with the new evidence, and the applicant was resentenced.

This decision does not deal with what happens where the former client does not waive privilege, or waives only to a limited extent. But in a world where some convicted people may be less than entirely satisfied about the outcome in their matter (not to mention – whisper it softly – sometimes not entirely truthful), this decision is a bracing reminder of the need to keep detailed conference notes, and a welcome clarification of whom the former lawyer should be communicating with in the event of an appeal.