R V BIRKS

"... His legal right is to conduct the cause without any regard to the
wishes of his client, so long as his mandate is unrecalled, and what he
does bona fide according to his own judgment will bind his client, and
will not expose him to any action for what he has done, even if the
client's interests are thereby prejudiced."
In Halsbury's Laws of England, 4th ed, vol 3(1), par 518 at 420, it is stated
that:
"... a barrister is ordinarily instructed on the implied understanding
that he is to have complete control over the way in which the case is
conducted. Unless and until his instructions are withdrawn, counsel has,
with regard to all matters that properly relate to the conduct of the case,
unlimited authority to do whatever he considers best for the interests of
his client. This authority extends to all matters relating to the action,
including the calling and cross-examination of witnesses, challenging a
juror, deciding what points to take, choosing which of two inconsistent
defences to put forward, and even to agreeing to a compromise of the
action, or to a verdict, order or judgment."
(See also R v Edwards Underwood and Edwards (1848) 3 Cox CC 82; Hatch v
Lewis (1861) 2 F&F 467; 175 ER 1145, Matthews v Munster (1887) 20 QBD
141 and Rowe v Australian United Steam Navigation Co Ltd (1909) 9 CLR 1
at 24 per Isaacs J.)
There is an evident tension between those principles, on the one hand, and
on the other hand, the power and duty of a Court of Criminal Appeal to
correct a miscarriage of justice. It would be wrong, however, simply to
regard these as two competing considerations which must from time to time
yield to some compromise. The principles as to the role of counsel, and the
capacity of counsel to bind the client, are fundamental to the operation of
the adversary system, and form part of the practical content of our notions of
justice.
It sometimes happens that a person who has been convicted of a crime
seeks to have the conviction set aside on the ground that counsel at the trial
has acted incompetently, or contrary to instructions. It is well settled that
neither of these circumstances will, of itself, attract appellate intervention. At
the same time the courts acknowledge the existence of a power and duty to
quash a conviction in some cases. The difficulty is to find, in the authorities,
a formula which adequately and accurately defines the class of case in which
a Court of Criminal Appeal will intervene. A common theme running
through the cases, however, is that such intervention is a matter about which
the courts are extremely cautious.
The existence of a power of intervention was acknowledged in this State by
Cullen CJ in R v McCall (1920) 20 SR (NSW) 467 at 472-473; 37 WN
(NSW) 189 at 192, where his Honour, in considering the consequences of
failure to call alibi evidence at a trial said:
"... There are so many potentialities of mischief in reopening the
verdict of the jury on the suggested evidence of additional witnesses on