A lawyer's incompetence in conducting the defence in a criminal case can be legitimate ground for an appellate court to intervene to quash the conviction, the Federal Court ruled today.

However, this must be subjected to the facts of each individual case, said a three-man panel of judges led by Chief Judge of Sabah and Sarawak Richard Malanjum.

The panel held that an appellant court could quash the conviction of an accused person - only if the counsel's incompetence was flagrant in the circumstances of the case, and had deprived the accused of a fair trial, thus occasioning a miscarriage of justice.

The other two Federal Court judges were justices Hashim Yusoff and Gopal Sri Ram.

In a landmark judgment, Sri Ram said, for an appellate court to consider those grounds, it must also have regard to the conduct of a counsel as a whole, and not merely to his or her failure in one or two departments.

He said a court, whether at first instance or at the appellate state, must have regard to its paramount function and duty to ensure that justice was done so that the incompetence of a counsel would not factor into the equation.

The quorum was made in the ruling after upholding the conviction and death sentence imposed on Bangladeshi Shamim Reza Abdul Samad, who was found guilty by the Shah Alam High Court on Oct 8, 2006, of murdering his girlfriend, Zuriyati Othman, 20, at Block A of the Kolej Kediaman Meranti, UiTM, Shah Alam, between 11am and noon, on Aug 9, 2002.

He brought the matter up for appeal to the Federal Court after he was unsuccessful in his appeal to the Court of Appeal.

The deceased's sister, Fatimah Othman, had called on Zuriyati, a UiTM student, on that fateful day when she (Fatimah) heard her (Zuriyati) cries from her (Zuriati's) room which was locked from inside.

Upon entering the room using a spare key, Fatimah found Zuriyati with stab wounds and lying on a bed, while Shamim was on the floor, beside the bed.

Not an extreme case of incompetent

In his appeal, Shamim contended that he did not have a fair trial because of the incompetence of a counsel assigned to conduct his defence.

In dismissing Shamim's appeal, Sri Ram said Shamim's case was not an extreme case of incompetence on the part of his counsel, as the material provided to the court showed no flagrant incompetence and therefore, had occasioned no miscarriage of justice.

He said an extreme situation must depend on the facts of each case.

Sri Ram said, on the other hand, evidence showed that no person other than Shamim was in the room at the material time, which was locked from inside.

He said the court declined to accept Shamim's contention that the failure of his defence counsel - to put in his (Shamim's) defence that Zuriyati was killed by a third person - to the prosecution's witnesses was flagrant incompetence.

He said the possibility of a third person having entered the room which was locked from within, is so far-fetched that a reasonable tribunal of fact would have rejected it as creating no reasonable doubt in its mind.

Sri Ram said the fact that the trial judge excluded that line of defence did not occasion a miscarriage of justice.

"We are satisfied that this is a case in which the appellant (Shamim) has been properly and deservedly convicted. We must say that the trial could perhaps, have been conducted with greater competence than that displayed by the counsel who appeared for the appellant at his trial," he said.

Counsel N Sivanathan appeared for Shamim while the prosecution was conducted by deputy public prosecutor Ahmad Bache.

- Bernama