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Advocate’s immunity protected a counsel from allegations her conduct during a sexual offences trial jeopardised her client’s defence and led to him unnecessarily spending 15 months behind bars.
Just over a year after Erron Criddle was convicted in the NSW District Court of serious sexual offences against a child, he appealed and had his convictions quashed due to the failure of his former counsel, Stephanie Monck, to obtain “critical evidence”.
In making the quashing orders, the court found it was “incumbent” on Monck to have taken steps prior to trial to obtain evidence of meteorological records in admissible form, which would have contradicted part of the complainant’s evidence.
“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,” the District Court found.
Further, it would have been “very advantageous” to Criddle’s case had Monck cross-examined the complainant on the evidence.
Criddle was found not guilty at a retrial in October 2017.
In proceedings before the Supreme Court of Western Australia, Criddle claimed Monck’s conduct caused him to be incarcerated for the 15 months between his conviction and the orders on appeal.
The primary judge dismissed his negligence claim on the basis that Monck’s conduct “fell squarely within the doctrine of advocate’s immunity”. Criddle appealed this on the “central convention” the primary judge had erred in making the immunity finding.
In a decision handed down on Tuesday, 1 April, Justices Robert Mitchell and John Vaughan said the primary judge was “plainly correct having regard to binding High Court of Australia decisions dealing with the principle of advocate’s immunity from suit”.
Those cases establish that, at common law, an advocate will be immune from lawsuits and cannot be liable for alleged negligence in the conduct of a case in court or in work out-of-court that leads to a decision that affects the conduct of the case in court.
It does not extend to negligent advice that leads to settlement or negligence advice not to compromise the case.
This immunity “clearly applies” to Criddle’s case.
“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,” Justices Mitchell and Vaughan said.
“That is conduct to which the principle of advocate’s immunity attached with the result that the appellant’s claim is doomed to fail.”
The case is Criddle v Monck [2025] WASCA 44 (1 April 2025).
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
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