The Western Australian Court of Appeal has recently considered advocate’s immunity in the context of the allegedly negligent failure of a barrister to act with due care in the preparation and conduct of a criminal trial, in the case of Criddle v Monck1.
In finding that advocate’s immunity applied, the Court of Appeal affirmed the reasoning of the High Court in D’Orta-Ekenaike v Victoria Legal Aid2, Giannarelli v Wraith3 and Attwells v Jackson Lalic Lawyers Pty Ltd4.
The decision is noteworthy because it confirms the continued application of advocate’s immunity in cases of alleged professional negligence, emphasising that such immunity extends to both in-court and certain out-of-court work directly related to the conduct of a case, regardless of whether the outcome of the case was later overturned on appeal.
Background
The appellant was found guilty of a serious sexual offence against a child following a trial. The barrister represented the appellant during the trial until the appellant ended her retainer mid-trial.
The appellant later appealed his conviction, arguing that a miscarriage of justice occurred due, in part, to the barrister’s failure to secure important evidence and to cross-examine the complainant regarding that evidence. As a result of the appeal, the conviction was overturned, and the appellant was acquitted at the retrial after having served 15 months’ imprisonment.
The decision at first instance
The appellant filed negligence proceedings in the Supreme Court of Western Australia against the barrister, alleging that her mishandling of his criminal defence resulted in his wrongful incarceration for 15 months. The negligence claim was based on the same grounds as the appellant’s successful appeal against his conviction: specifically, that the barrister had failed to obtain crucial meteorological evidence about the temperature on the night of the alleged offence, evidence that could have discredited the complainant’s account.
The barrister brought a summary judgment application arguing that the appellant’s claim was barred by the doctrine of advocate’s immunity. The primary judge found that the appellant’s claim against the barrister turned on the barrister’s failure to:
- Obtain prior to, and have available at, trial the meteorological evidence; and
- Use the meteorological evidence at the first trial to challenge the State’s case against the appellant.
The primary judge found that the appellant’s case was that if the above breaches had not occurred, he would have been acquitted at his first trial and not been incarcerated for 15 months.
In finding that advocate’s immunity applied to the appellant’s claim, the primary judge concluded that the failure to obtain and use the meteorological evidence was work not done out-of-court that was intimately connected to the conduct of the case in court.
As such, the judge determined that the appellant’s negligence claim fell squarely within the scope of advocate’s immunity.
Decision on appeal
The Court of Appeal upheld the primary judge’s decision, providing an analysis of the key principles underlying advocate’s immunity in relation to criminal proceedings.
There are three matters that need to be established for advocate’s immunity to apply:
- The negligent conduct must affect the way the case was conducted in court;
- There must be a functional connection between that work and the court’s decision; and
- The controversy must have been quelled by the court.
Out-of-court work
The appellant contended that the application of advocate’s immunity should not extend to the barrister’s conduct outside of court, specifically focusing on the alleged failure to obtain meteorological evidence before the trial. The appellant argued that the failure to obtain this evidence, which could have undermined the complainant’s account, led to his wrongful conviction and imprisonment.
The Court rejected this view, finding the cases establish that:
- The immunity applies to work performed out-of-court which is ‘intimately connected’ with the case in court, such that it “can fairly be said to be a preliminary decision affecting the way that cause is to be conducted when it comes to a hearing”;
- The requirement of an intimate connection means that the advocate’s work has directly influenced the court’s resolution of the case. Actions or advice by the advocate that do not contribute to advancing the litigation towards a court’s decision are not protected by the immunity;
- Accordingly, there must be a ‘functional connection’ between the out-of-court work and the court’s determination of the case, and not a mere ‘historical connection’.
The Court found that the failure to obtain the meteorological evidence before the trial was intimately connected with how the trial was conducted. The alleged out-of-court negligence had a direct impact on the trial and its outcome, as the evidence, had it been available and used during the trial, could have affected the State’s case and potentially led to a different result.
The appellant raised the issue of whether advocate’s immunity should extend to work that was not performed at all (i.e. the barrister did not perform any ‘work’, but had instead omitted to do so). The Court found that this contention was inconsistent with the approach taken in Giannarelli, where negligence was found in the failure to advise clients about the inadmissibility of certain evidence, despite this work not having been performed. Therefore, the Court found that the failure to obtain the meteorological evidence (a task that was not performed) still fell within the scope of advocate’s immunity, as it was directly connected to the trial’s conduct.
Finality and certainty
The appellant also contended, in effect, that advocate’s immunity should not apply to out-of-court conduct that leads to a miscarriage of justice, and that such immunity could only be invoked through the principles of issue estoppel, Anshun estoppel, or res judicata, which he argued did not arise in this case due to the decision being overturned on appeal.
The Court rejected the appellant’s contention that advocate’s immunity derives from an issue estoppel, Anshun estoppel or res judicata arising from the decision in proceedings in which negligence is alleged. It emphasised that the justification for the principle of advocate’s immunity is the public interest in judicial decisions being final and certain. That is, that those decisions should not be reopened by a collateral attack.
The Court noted that the judicial decision which the appellant contended caused him loss had already been quashed and the appellant acquitted of the relevant charge. As such, the Court considered how advocate’s immunity applies in circumstances where neither party seeks to attack the final determination.
Giannarelli v Wraith
The Court applied Giannarelli v Wraith, in which the plaintiffs sued the barristers who represented them in a criminal proceeding in which they were ultimately convicted. The plaintiffs alleged the barristers failed to advise them that certain evidence was inadmissible and failed to object to that evidence being tendered. The plaintiffs’ convictions were later quashed on appeal by the High Court.
In that case, the plaintiffs did not contend that their initial convictions were unlawful. Nonetheless, the High Court held that the barristers were entitled to advocate’s immunity for work done which led to a decision affecting the conduct of the case in court, whether or not that decision was the final determination.
D’Orta-Ekenaike v Victoria Legal Aid
The Court also considered D’Orta-Ekenaike in which, the plaintiff sued his solicitors on the basis that they allegedly provided negligent advice which led the plaintiff to enter a guilty plea. While the plaintiff’s conviction was ultimately quashed, he alleged that negligent advice caused him to lose his liberty and income in the period between him being convicted, and that conviction being quashed.
Again, the plaintiff did not seek to challenge the validity of the final determination of the criminal proceeding. However, the High Court held that just as a final judicial determination should not be challenged, neither should an intermediate determination. On that basis, the High Court concluded that for the most part, a person wrongly convicted, whose conviction was ultimately quashed, could not say that the initial conviction was due to the negligence of his or her lawyers.
In light of the above decisions, and the New South Wales Court of Appeal’s decision in Jimenez v Watson5, the Court found that advocate’s immunity applied to the appellant’s claim, regardless of the fact that the conviction was later quashed.
While the Court agreed that such a result might seem counterintuitive, the Court emphasised that it would be unreasonable for the applicability of advocate’s immunity to depend on the timing of when the negligence claim comes for determination (whether before or after an appeal). The Court highlighted that the appellant’s negligence claim could have been commenced before the conviction was quashed, as the cause of action would have been complete from the point of his incarceration. In such a case, the Court said there would have been nothing counterintuitive with the negligence proceedings being barred prior to an appeal.
The Court stressed that the immunity remains operative once it attaches, irrespective of subsequent outcomes in the appellate process. The appellant’s attempt to challenge pre-trial conduct after the conviction had been overturned did not alter the fundamental principle that the immunity applies regardless of when the claim is brought.
Conclusion
This case demonstrates the enduring application of advocate’s immunity. The Court confirmed that advocate’s immunity extends not only to in-court conduct but also to out-of-court work that is intimately connected with the conduct of a case. This includes actions that are alleged to have caused a miscarriage of justice, even when a conviction has been subsequently quashed on appeal.
The Court has also reinforced that the applicability of advocate’s immunity is not contingent on the timing of a claim (whether before or after an appeal) but rather on the nature of the advocate’s conduct and its connection to the case in court. Such claims are still considered to be a collateral attack on the integrity of the original trial process and the decisions made (including intermediate decisions) throughout that process.
1 [2025] WASCA 44.
2 [2005] HCA 12.
3 (1988) 165 CLR 543.
4 [2016] HCA 16.
5 [2021] NSWCA 55.
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The material contained in this publication is in the nature of general comment only, and neither purports nor is intended to be advice on any particular matter. No reader should act on the basis of any matter contained in this publication without considering, and if necessary, taking appropriate professional advice upon their own particular circumstances.
