Ahmu v R

Case [2014] NSWCCA 312 15 December 2014

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Ahmu v R; Director of Public Prosecutions v Ahmu [2014] NSWCCA 312
Hearing dates: 20 August 2014
Decision date: 15 December 2014
Before: Basten JA at [1];
Adams J at [43];
Fullerton J at [86]
Decision:
In Ahmu v R:
1. Grant the applicant an extension of time within which to seek leave to appeal from his convictions.
2. Grant the applicant leave to appeal.
3. Dismiss the appeal.
In Director of Public Prosecutions v Ahmu:
1. Allow the appeal.
2. Without varying the non-parole periods and head sentences, vary the commencement dates as follows so that the sentences -
(a) on Count 17 commenced on 6 December 2012;
(b) on Count 18 commenced on 6 June 2013;
(c) on Counts 15 and 16 commenced on 6 December 2013;
(d) on Count 14 commenced on 6 June 2014;
(e) on Counts 3 and 11 commenced on 6 June 2014.
(f) on Counts 2,6 and 10 commenced on 6 December 2014;
(g) on Counts 4, 5, 9, 12, and 13 are to commence on 6 June 2015;
(h) on Count 8 is to commence on 6 December 2015.
The overall effective sentence therefore consists of a non-parole period of 6 years 6 months commencing on 6 June 2012 and a head sentence of 9 years 6 months. The offender will become eligible to be considered for release on parole on 5 December 2018.

Catchwords:
CRIMINAL LAW - appeal against conviction - miscarriage of justice - competence of counsel - instructions to cross-examine complainant that she had fabricated allegations the accused had expressed a sexual interest in children - further instructions that allegations true after prosecution sought to subpoena accused's medical records - whether the cross-examination was an available forensic strategy - whether failing to seek a discharge of the jury gave rise to a miscarriage of justice - whether evidence of communication between counsel and accused properly revealed
CRIMINAL LAW - Crown appeal against sentence - offender convicted of multiple counts of sexual and indecent assault against the complainant - sentenced to seven years imprisonment with a four year non-parole period - whether sentence manifestly inadequate - failure to assess properly the objective seriousness of the offences - failure to recognise the significance of the standard non-parole period - whether residual discretion to decline to interfere with inadequate sentence
Legislation Cited: Crimes Act 1900 (NSW), ss 61I, 61L
Criminal Appeal Act 1912 (NSW), ss 5, 5D, 6
Criminal Appeal Rules, rr 3B, 4
Criminal Procedure Act 1986 (NSW), s 159
New South Wales Barristers' Rules, rr 5, 12, 27, 78
Cases Cited: Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
House v The King (1936) 65 CLR 499
Muldrock v The Queen [2011] HCA 39; 244 CLR 120; 212 A Crim R 254
Nudd v R [2006] HCA 9; 80 ALJR 614; 162 A…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ahmu v R

Details

AGLC: Ahmu v R [2014] NSWCCA 312
Case: [2014] NSWCCA 312
Decision Date: 15 December 2014

CaseChat Overview and Summary

In the case of Ahmu v R, the appellant was convicted of multiple counts of sexual and indecent assault against the complainant and sentenced to seven years imprisonment with a four-year non-parole period. The Crown subsequently appealed the sentence, arguing it was manifestly inadequate. The appellant also sought to appeal against his conviction, alleging a miscarriage of justice due to the incompetence of his counsel. The appellant argued that his counsel's failure to cross-examine the complainant regarding allegations that she had fabricated claims of his sexual interest in children, and later to cross-examine her on the veracity of the allegations after the prosecution sought to subpoena his medical records, amounted to a miscarriage of justice. Additionally, the appellant claimed that counsel's failure to seek a discharge of the jury, following the prosecution's attempts to introduce the medical records, further contributed to the miscarriage of justice.

The court examined whether the cross-examination strategy employed by the appellant's counsel was a viable forensic approach. The court also considered whether the counsel's failure to seek a discharge of the jury amounted to a miscarriage of justice. Furthermore, the court reviewed the admissibility of evidence concerning communications between the appellant and his counsel. The court held that the cross-examination strategy was not available to the defence and that the counsel's actions did not constitute incompetence. The court further determined that the evidence of communication between the appellant and his counsel was properly revealed and did not contribute to a miscarriage of justice. Regarding the sentence, the court found that the trial judge had failed to assess properly the objective seriousness of the offences and did not recognise the significance of the standard non-parole period. The court exercised its residual discretion not to interfere with the inadequate sentence.

The court dismissed the appeal against conviction but allowed the Crown's appeal against sentence. The court ordered that the appellant's sentence be reviewed, and if found to be inadequate, the court would consider an appropriate sentence. The court did not set aside the appellant's conviction but recognised the need for a reassessment of his sentence to reflect the seriousness of the offences committed.

Orders