Advocates’ Immunity Protects Counsel from Alleged Negligence in Failing to Elicit Obtainable Evidence
In Criddle v Monck [2025] WASCA 44 (1 April 2025), the Court of Appeal of Western Australia addressed whether counsel who failed to elicit and adduce obtainable evidence inconsistent with a complainant’s account against his client upon a criminal trial was entitled to immunity from a civil claim for damages. The accused client was convicted, but the conviction was overturned on appeal on account of a found miscarriage of justice arising in part from counsel’s failure to obtain critical evidence and cross-examine the complainant upon that evidence. Subsequently the client was acquitted on retrial.
The court wrote:
Summary
[1] The appellant was convicted after trial of a serious sexual offence against a child. The respondent acted as the appellant’s counsel at that trial until her retainer was terminated by the appellant. The appellant successfully appealed against his conviction on the ground that a miscarriage of justice arose in part from the respondent’s failure to obtain critical evidence and cross-examine the child complainant on that evidence. The appellant was subsequently acquitted on retrial.
[2] The appellant then commenced the primary proceedings against the respondent alleging that the respondent’s negligent conduct of his criminal defence caused him to be incarcerated for 15 months between his conviction and the orders made on appeal. The primary judge awarded summary judgment against the appellant in favour of the respondent on the basis that the appellant’s negligence claim fell squarely within the doctrine of advocate’s immunity.
[3] The appellant now appeals from the award of summary judgment on various grounds. For the following reasons, the primary judge’s decision was plainly correct having regard to binding High Court of Australia decisions dealing with the principle of advocate’s immunity from suit. None of the appellant’s grounds of appeal has a reasonable prospect of succeeding. The appeal must be dismissed.
Background
[4] The appellant was charged on indictment in the District Court of Western Australia with one count of sexually penetrating the complainant, a child under the age of 13 years, by penetrating her vagina with his finger. The offence was alleged to have been committed on or about 3 February 2012 in a suburb of Perth. The appellant pleaded ‘not guilty’ to that charge and engaged the respondent to represent him at trial.
[5] The complainant’s evidence at trial included two visually-recorded interviews conducted on 23 September 2013 and 8 May 2014. The account given in the interview of 23 September 2013 was that the offence occurred on 3 February 2012, on the evening after the then 11-year-old complainant returned from a camp. Because it was a very hot night, the complainant slept naked that night. She awoke to find the appellant lying beside her in the bed, penetrating the complainant’s vagina with his finger. The complainant made an entry in her diary the following morning, 4 February 2012, that the appellant ‘did something last night’. She later crossed the entry out because she did not want to remember it.
[6] Prior to trial, the appellant told the respondent of the existence of meteorological records which were inconsistent with the complainant’s account. The records showed that the maximum temperature in Perth on 3 February 2012 was 22 degrees Celsius, and that the minimum temperature that night was 11 degrees Celsius. The respondent did not obtain the meteorological records, or cause them to be obtained, prior to trial. The meteorological records were easily obtainable in an admissible form.
[7] The appellant’s trial before a judge and jury commenced on 3 March 2015. The respondent appeared as counsel for the appellant on the first day of trial. In her evidence on 3 March 2015, the complainant affirmed the account of the offence described above. She confirmed that, on the night in question, she wore nothing to bed because it was summer and there was a heatwave. The respondent cross-examined the complainant and did not challenge the complainant’s account of the weather on the night of the alleged offence.
[8] The appellant dispensed with the respondent’s services on the second day of trial. After unsuccessfully requesting an adjournment of the trial, the appellant represented himself for the balance of the trial. At the commencement of the proceedings on 4 March 2015, the trial judge advised the appellant that the weather records were inadmissible under the collateral evidence rule.
[9] At the conclusion of the trial on 10 March 2015, the appellant was convicted of the charged offence and remanded in custody pending sentencing. On 7 May 2015, the appellant was sentenced to 3 years’ immediate imprisonment with eligibility for parole.
[10] On 28 May 2015, the appellant instituted an appeal against his conviction to this court. The appellant was self-represented in that appeal, which resulted in some delays in preparing the matter for hearing. The appeal was heard on 14 June 2016. At the conclusion of the hearing on that day, the court allowed the appeal, quashed the conviction and ordered a retrial. The appellant was released from custody on 15 June 2016.
[11] This court subsequently published written reasons for making those orders.1
[12] The court found that, given the appellant’s instructions, it was incumbent on the respondent as counsel to take steps, or ensure that steps were taken, to obtain evidence of the meteorological records in admissible form.2 Further, the appellant’s instructions to the respondent provided a legitimate forensic basis for challenging the complainant’s evidence about the temperature in cross-examination. The respondent’s decision not to do so because it would not have assisted the defence case was an error of judgment on defence counsel’s part which was incapable of being justified as a reasonable forensic judgment. A cross-examination of the complainant based on the Bureau of Meteorology records almost certainly would have been very advantageous to the appellant.3 The court observed:4
Evidence capable of undermining the fact that the offence occurred on a hot or very hot night (and, in fact, the night could not reasonably have been characterised in this way) was capable of significantly undermining [the complainant’s] account of events. Moreover, if the alleged events did not occur on the evening of 3 February 2012, a further question arose as to the veracity of the diary entry said to have been made on 4 February 2012.
[13] This court also found that the trial judge’s comments discouraging the appellant, when self-represented, from obtaining meteorological records were erroneous. The respondent’s and the trial judge’s error as to the relevance of the meteorological records had the practical effect of depriving the appellant of the opportunity to run an important aspect of his defence. These unusual circumstances combined to constitute a material irregularity in the trial which could well have affected its outcome, and a miscarriage of justice.5
[14] At a retrial which concluded on 11 October 2017, the appellant was found not guilty by a jury and acquitted of the charged offence.
The primary proceedings
[15] By action instituted in the General Division of this court on 2 February 2021, the appellant claimed damages arising from his ‘wrongful conviction’ resulting from the respondent’s negligence.
[16] The appellant was self-represented in the primary proceedings. His pleadings were not confined to material facts and were in some respects prolix. In essence, the appellant claimed:
1. The respondent owed a common law duty to the appellant to exercise reasonable care, skill and diligence.6
2. The respondent breached that duty of care by failing to obtain meteorological evidence in admissible form, and to give due consideration to the significance of the evidence comprised in the prosecution case, prior to trial.7
3. Had the respondent obtained the meteorological evidence and considered its significance, she would have used it to challenge the complainant’s evidence resulting in the respondent being found not guilty at the first trial.8
4. The respondent’s negligence was a cause of the appellant spending 15 months in prison for an offence he did not commit.9
[17] The respondent admitted owing the appellant a duty of care but denied breaching that duty or that any breach of duty caused the appellant to suffer any loss or damage. The respondent also pleaded by way of defence that:10
Further and in the alternative, if (which is denied) the [respondent] breached a duty owed to the [appellant] as alleged or at all then:
59.1 any such breach is not an actionable breach of duty at the suit of the [appellant] by reason of the doctrine of advocates’ immunity, given that each act or omission to act that is alleged to constitute a breach of duty on the part of the defendant involves acts or omissions in preparation for, or were intimately connected with, work in court and had a functional connection with the exercise of judicial power, namely the recording of the conviction of the [appellant][.]
[18] Accordingly, the respondent invoked the principle of advocate’s immunity from suit contending it to be a complete defence to the appellant’s claim.
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[20] On 22 December 2023, the respondent applied for leave to bring an application for summary judgment and orders granting summary judgment and dismissing the action. The primary judge heard that application on 30 May 2024. In substance the basis of the summary judgment application was that the respondent had a good defence on the merits by reason of the principle of advocate’s immunity from suit.
The primary decision
[21] On 12 August 2024, the primary judge published written reasons for extending the time for the respondent to apply for summary judgment and awarding summary judgment to the respondent.12
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Advocate’s immunity
[30] The scope of the doctrine of advocate’s immunity in Australia is principally established by three decisions of the High Court of Australia in Giannarelli v Wraith,16 D’Orta-Ekenaike v Victoria Legal Aid,17 and Attwells v Jackson Lalic Lawyers Pty Ltd.18
[31] These cases establish that, at common law, an advocate is immune from suit by (and consequently cannot be liable to) his or her client for negligence in the conduct of a case in court or in work out-of-court which leads to a decision affecting the conduct of the case in court.19 The immunity for work done out-of-court exists only where the particular work is so intimately connected with the cause in court 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.20 This requirement of an intimate connection is concerned only with work by the advocate that bears upon the court’s determination of the case, and does not extend to acts or advice of the advocate which do not move litigation towards a determination by a court.21 So understood there must be a functional connection between the work of the advocate and the determination of the case rather than a mere historical connection.22 The immunity does not extend to negligent advice which leads to a settlement of a claim in civil proceedings or negligent advice not to compromise the case.23
[32] As illustrated by the decisions in Giannarelli and D’Orta-Ekenaike, the immunity extends to negligent work by an advocate in criminal proceedings, even after the relevant conviction has been set aside.
[33] In Giannarelli, three plaintiffs had been convicted of perjury in giving evidence to a Royal Commission. Two plaintiffs received sentences of imprisonment and appealed against their convictions. Their convictions were ultimately quashed by the High Court on the ground that a provision of the relevant Royal Commission legislation rendered the evidence given by the plaintiffs at the Royal Commission inadmissible in the criminal proceedings.24 The other plaintiff did not appeal against his conviction. All plaintiffs then sought to sue their counsel for negligent failure to advise that the provision would render the evidence given in the Royal Commission inadmissible and thus defeat the Crown case, and to object on that ground to the tender of the evidence at trial. The High Court held that advocate’s immunity applied to defeat that civil claim.
[34] In D’Orta-Ekenaike, the plaintiff was charged with rape. He entered a plea of ‘guilty’ at a committal hearing, but on arraignment changed his plea to ‘not guilty’ and stood trial before a judge and jury. At trial, the Crown led evidence of the ‘guilty’ plea entered at the committal hearing. The plaintiff was convicted and sentenced to a term of imprisonment. On appeal, his conviction was quashed due to the inadequacy of the trial judge’s directions concerning the guilty plea at the committal hearing. A retrial was ordered. The judge at the retrial ruled evidence of the plaintiff’s guilty plea on committal to be inadmissible. The plaintiff was acquitted at the retrial. He subsequently sued his counsel and solicitor for negligently providing advice as to the advantages of pleading guilty at the committal hearing, and negligently failing to advise that a plea of guilty could be relied on by a prosecutor at a subsequent trial as an admission of guilt. Again, the High Court held that advocate’s immunity applied to defeat that claim.
[35] The appellant sought to distinguish Giannarelli and D’Orta-Ekenaike from the present case. We accept that in D’Orta-Ekenaike the alleged negligence was not the basis on which the claimant successfully overturned the conviction on appeal. There is a closer connection between the alleged negligence and the basis for the overturning of the conviction in Giannarelli. But even so Giannarelli is not a case where a miscarriage of justice was established based in part on the incompetence of counsel.
[36] While, for these reasons, there are factual dissimilarities between the present case and Giannarelli and D’Orta-Ekenaike, we are not satisfied that these distinguishing features are material for the application of the principle of advocate’s immunity. The principle of advocate’s immunity established in Giannarelli and D’Orta-Ekenaike is equally applicable to the present case.
Disposition
[37] The principle of advocate’s immunity from suit clearly applies to preclude success of the appellant’s claim in negligence against the respondent.
[38] The critical aspect of the appellant’s claim is his complaint that the respondent failed to challenge the complainant’s account of the weather on the date of the alleged offence and to adduce meteorological evidence which was inconsistent with that account at trial. The appellant contends that, if this had been done, he would have been acquitted at his first trial and would not have been incarcerated during the 15 months between his conviction and the quashing of that conviction on appeal. Accordingly, the core of the appellant’s complaint is what the appellant contends to be the negligent conduct of the trial by the respondent acting on his behalf. That is conduct to which the principle of advocate’s immunity attached with the result that the appellant’s claim is doomed to fail.
[39] The appellant does not avoid the application of the doctrine of advocate’s immunity by focusing on conduct outside of court which led to the trial being conducted in that manner. The only significance of the alleged failure to obtain meteorological evidence in admissible form and properly consider the relevance of that evidence before the trial commenced is on the conduct of the trial. Merely obtaining the evidence and considering its significance could not have avoided the appellant’s incarceration unless the evidence was actually used at trial. The only causal link between the alleged negligent acts and the damage which the appellant suffered is that, if the evidence had been obtained and its significance properly considered, it would have led to the evidence being used at his first trial in a manner that the appellant contends would have produced a different result. In this way, the alleged out-of-court negligence was intimately connected with the trial that affected the way the trial was conducted.
[40] None of the appellant’s grounds of appeal provide a proper basis for doubting this conclusion.
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Ground 4: application of immunity to work not performed
[60] Ground 4 in part repeats the appellant’s contention that the doctrine of advocate’s immunity does not apply where a principal decision has been set aside or where the alleged negligence forms the basis of the decision to set aside the principal decision. To that extent the ground fails for the reasons explained above.
[61] An additional contention in ground 4 is that the observations of Mason CJ in Giannarelli apply to work done out-of-court and not to work that has not been performed. That contention is inconsistent with the approach taken in Giannarelli itself, where one aspect of the alleged negligence was the failure to advise the plaintiffs that the relevant provision would render evidence inadmissible and thus defeat the Crown case.38 It is also inconsistent with the approach taken in D’Orta-Ekenaike, where the negligence alleged included failing to advise that a plea of guilty could be relied on by a prosecutor at a subsequent trial as an admission of guilt.
[62] Ground 4 does not have a reasonable prospect of succeeding.
Conclusion
[63] It is established that summary judgment should be awarded only in the clearest of cases, where one party can demonstrate that the question will certainly be resolved in their favour.39 For the reasons explained above, this was a case where the pleaded defence of advocate’s immunity means that the appellant’s action against the respondent is doomed to fail. The primary judge was correct to award summary judgment on that basis. Nothing in the appellant’s grounds of appeal or submissions to this court provides any proper basis for doubting the correctness of the primary judge’s decision. The appeal should therefore be dismissed on the basis that none of the grounds of appeal has a reasonable prospect of succeeding. As the appeal should be dismissed there is no utility in granting an extension of time to appeal and the application for such an extension should also be dismissed.
A link to the full case is here.
1 Criddle v Western Australia [2017] WASCA 17 (criminal appeal decision).
2 Criminal appeal decision [130].
3 Criminal appeal decision [132]–[133].
4 Criminal appeal decision [128].
5 Criminal appeal decision [141].
6 Amended statement of claim filed 7 December 2023 (SoC) par 4.
7 SoC pars 31–44.
8 SoC pars 45–56.
9 SoC par 57.
10 Defence filed 22 December 2023, par 59.1.
11 Reply filed 27 January 2024 par 15.
12 Criddle v Monck [2024] WASC 283 (primary decision).
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16 Giannarelli v Wraith (1988) 165 CLR 543.
17 D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1.
18 Attwells v Jackson Lalic Lawyers Pty Ltd [2016] HCA 16; (2016) 259 CLR 1.
19 Giannarelli (559–560, per Mason CJ, Brennan J agreeing at 579); D’Orta-Ekenaike [1], [25], [86], [91]; Attwells [2], [5].
20 Giannarelli (560, per Mason CJ, Brennan J agreeing at 579), adopted in D’Orta-Ekenaike [86]–[87].
21 Attwells [37]–[38], [45].
22 Attwells [5], [49].
23 Attwells [38], [45]–[50]; Kendirjian v Lepore [2017] HCA 13; (2017) 259 CLR 275 [18] [31] –[32] [36].
- 24 Giannarelli v R (1983) 154 CLR 212.
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- Giannarelli (554).
- Spencer v The Commonwealth [2010] HCA 28; (2010) 241 CLR 118 [54] –[55].
