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dc.contributor.advisorHall, Geoffen_NZ
dc.contributor.authorO'Driscoll, Stephen Jamesen_NZ
dc.date.available2011-01-25T00:22:31Z
dc.date.copyright2009en_NZ
dc.identifierhttp://adt.otago.ac.nz/public/adt-NZDU20090506.091357en_NZ
dc.identifier.citationO’Driscoll, S. J. (2009). Conduct of counsel causing or contributing to a miscarriage of justice (Thesis, Doctor of Philosophy). University of Otago. Retrieved from http://hdl.handle.net/10523/490en
dc.identifier.urihttp://hdl.handle.net/10523/490
dc.description.abstractThe Crimes Act 1961 and the New Zealand Bill of Rights Act 1990 provide that a person accused of a criminal offence in New Zealand has the right to be represented at trial by counsel. The purpose of representation by counsel is to protect the accused's interests; ensure that the accused is able to present their defence to the Court; ensure that the accused receives a fair trial; and ensure that the accused is not the subject of a miscarriage of justice. It is implicit that criminal defence counsel must be competent if they are to be effective advocates on behalf of their clients. If counsel is not competent, there is a risk that counsel's acts or omissions may cause or contribute to a miscarriage of justice. The Crimes Act 1961 allows an accused to appeal against their conviction on the basis that they have been the subject of a miscarriage of justice through the conduct of their counsel. The thesis analyses the Supreme Court decision of R v Sungsuwan that sets out the test that an appellate court must consider when deciding to allow an appeal based on the conduct of counsel. The thesis examines 239 Court of Appeal decisions between 1996 and 2007 that have considered appeals from jury trials where at least one of the grounds of appeal was that defence counsel caused or contributed to a miscarriage of justice. The thesis notes the increasing trend to use quot;conduct of counselquot; as a ground of appeal. In 1996 there were 4 appeals; in 2006 there were 43 such appeals and in 2007 there were 29 appeals. During the period under review the Court of Appeal allowed the appeal and specifically held that counsel's conduct, either alone or in combination with other grounds, caused or contributed to a miscarriage of justice in 41 cases. The thesis analyses the common complaints made by an accused against trial counsel and the common areas where the Court of Appeal upheld complaints against counsel. The thesis takes into account the Lawyers and Conveyancers Act 2006 and the Lawyers and Conveyancers (Lawyer: Conduct and Client Care) Rules 2008 that came into existence on 1 August 2008. The new legislation places particular emphasis on the obligations of counsel to uphold the rule of law and to facilitate the administration of justice in New Zealand. Counsel also has an obligation to protect the interests of their clients. The thesis concludes that the plethora of cases coming before the Court of Appeal, and the number of appeals allowed by the Court, demonstrate defence counsel do not always protect the interests of their clients and can cause or contribute to a miscarriage of justice. The thesis makes a number of recommendations that may reduce the risk of both an accused appealing on the basis on the conduct of counsel and an appeal being allowed on the basis of the conduct of counsel. In particular, it is suggested that there should be greater degree of co-operation between the New Zealand Law Society and the Legal Services Agency to ensure the maintenance of high standards among criminal defence lawyers.en_NZ
dc.format.mimetypeapplication/pdf
dc.languageenen_NZ
dc.publisherUniversity of Otagoen_NZ
dc.rightshttp://www.otago.ac.nz/administration/policies/otago003228.htmlen_NZ
dc.rightsAll items in OUR Archive are provided for private study and research purposes and are protected by copyright with all rights reserved unless otherwise indicated.
dc.rights.urihttp://www.otago.ac.nz/administration/policies/otago003228.html
dc.subjectjudicial erroren_NZ
dc.subjectlawyersen_NZ
dc.subjectcomplaints againsten_NZ
dc.subjectmalpracticeen_NZ
dc.subjectnegligenceen_NZ
dc.subjectcriminal lawen_NZ
dc.subjectconduct of court proceedingsen_NZ
dc.subjectNew Zealanden_NZ
dc.titleConduct of counsel causing or contributing to a miscarriage of justiceen_NZ
dc.typeThesisen_NZ
thesis.degree.disciplineFaculty of Lawen_NZ
thesis.degree.nameDoctor of Philosophyen_NZ
thesis.degree.grantorUniversity of Otagoen_NZ
thesis.degree.levelDoctoral Thesesen_NZ
otago.interloanyesen_NZ
otago.openaccessOpen
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