Craig v The Queen

The High Court has unanimously dismissed appeal against a decision of the Queensland Court of Appeal on a defendant’s decision not to testify in the context of a domestic violence murder conviction. Although he told his solicitors that the killing was an accident that occurred after the victim attacked him, his defence at trial instead relied on his police interview that described the killing as a deliberate attack that occurred in the heat of the moment. The defendant’s reasons for not testifying were evidenced in the following signed instructions he gave to his solicitor before the trial:

I am not relying on self defence or provocation as defence for tactical or legal reasons. Firstly, I did not raise these defences in my interview to police and secondly it would require me to give further evidence if such defences were to be raised. I have already given my preliminary view that I do not wish to give evidence as I do not want to be cross-examined about my previous criminal history.

On appeal, the defendant’s trial counsel explained that the advice was based on a number of contingencies that might arise during the defendant’s testimony – imputations against the police or the victim, assertions of his good character or the substance of his defence that the killing was an accident – which might allow the introduction of his earlier conviction for a home invasion where a person was fatally stabbed, but admitted that he had not told the defendant that the trial judge would have to give leave for that to occur. The QCA held that the trial counsel’s advice was incorrect, but dismissed the defendant’s appeal because the decision not to testify was a sound, forensic decision where the wrong advice was merely ‘an additional, but inaccurately expressed, reason’.

A unanimous High Court consisting of all seven judges rejected the defendant’s argument that he could not be held to a forensic decision that was informed by incorrect legal advice. The Court held (at [27]) that a1994 Privy Council decision where a defendant opted not to testify so as to avoid having an argument with his counsel in front of the jury ‘is not authority for the proposition that any inadequacy or error in legal advice relating to the accused’s right to give evidence, without more, occasions a miscarriage of justice.’ Because the defendant was aware of his right to testify, ‘demonstration that incorrect advice has occasioned a miscarriage of justice will require consideration of the relation between the advice and the decision not to give evidence.’ The Court observed (at [36]) that ‘[i]t is a large proposition that the appellant’s decision not to give evidence was not an informed decision because a material factor in making it was his understanding, based on the incorrect advice, that the consequence that he most feared was a likely consequence of testifying and not merely a possible consequence of testifying.’

The Court ultimately resolved the case (at [37]) because of a ‘fundamental deficiency’ in the defendant’s argument: ‘ the appellant did not say, and the Court of Appeal did not find, that absent the incorrect advice he would have given evidence’, because he testified that his decision not to testify was also due to his ‘physical and mental’ health. Accordingly, the QCA’s decision was correct and the appeal was dismissed.


High Court Judgment [2018] HCA 13 21 March 2018
Result Appeal dismissed
High Court Documents Craig
Full Court Hearing [2017] HCATrans 261  14 December 2017
Special Leave Hearing [2017] HCATrans 73 7 April 2017
Appeal from QCA [2016] QCA 166 21 June 2016
This entry was posted in Case Pages, Decided Cases, Opinions by Jeremy Gans. Bookmark the permalink.

About Jeremy Gans

Jeremy Gans is a Professor in Melbourne Law School, where he researches and teaches across all aspects of the criminal justice system. He holds higher degrees in both law and criminology. In 2007, he was appointed as the Human Rights Adviser to the Victorian Parliament's Scrutiny of Acts and Regulations Committee.