Al-Harazi v The Queen - [2018] ACTCA 40

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:	Al-Harazi v The Queen
Citation:	[2018] ACTCA 40
Hearing Date:	19 September 2018
DecisionDate:	21 September 2018
Before:	Mossop J
Decision:	The application for leave to appeal out of time filed 7 September 2018 is dismissed.
Catchwords:	APPEAL – CRIMINAL LAW – Appeal against sentence – leave to appeal out of time – no explanation for delay in appeal – applicant seeks to change his plea following jury trial and conviction – change of plea or admission of guilt does not demonstrate error in sentencing – no utilitarian value in change of plea following conviction – no arguable basis for appeal against conviction – leave to appeal out of time dismissed
Legislation Cited:	Court Procedure Rules 2006 (ACT), r 5506(1) Supreme Court Act 1933 (ACT), s 37J(1)(b)
Cases Cited:	Cranfield v The Queen [2018] ACTCA 3 R v Al-Harazi (No 2) [2016] ACTSC 273 R v Al-Harazi (No 3) [2016] ACTSC 290 R v Al-Harazi (No 5) [2017] ACTSC 61 R v Al-Harazi (No 7) [2017] ACTSC 350
Parties:	Maged Mohammed Ahmed Al-Harazi (Applicant) The Queen (Respondent)
Representation:	Counsel Self-represented (Applicant) J Walker (Respondent)
Solicitors Self-represented (Applicant) ACT Director of Public Prosecutions (Respondent)
File Number:	ACTCA 39 of 2018

MOSSOP J:

Application for leave to appeal out of time

On 13 April 2017 the applicant, Mr Al-Harazi, was found guilty by a jury of the murder of his wife. On 10 August 2017, the applicant was sentenced to 30 years imprisonment with a non-parole period of 21 years. Reasons for that sentence were given on 22 November 2017: R v Al-Harazi (No 7) [2017] ACTSC 350.

The Court Procedures Rules 2006 (ACT) require that an application for leave to appeal out of time by a convicted person be made to the registrar in the first instance: r 5506(1). On 2 August 2018, the applicant applied to the registrar for leave to appeal out of time against his sentence. That application was dismissed on 23 August 2018. That decision was made by the registrar in chambers and the applicant was advised to file an application to the Court of Appeal for leave to appeal out of time. The applicant filed that application on 7 September 2018. The application is a matter in which the Court of Appeal may be constituted by a single judge: Supreme Court Act 1933 (ACT), s 37J(1)(b).

The affidavit in support of the application is an undated document which does not identify whether it was sworn or affirmed. The substance of the purported affidavit is:

I am seeking to appeal my sentence, my sentence was based on my false statement. I now want to plead guilty and be re-sentenced on my guilty plea.

The Crown relied upon an affidavit of an employee of the ACT Director of Public Prosecutions. It provided a basic history of the proceedings. In particular it identified that prior to and at his trial the offender denied his guilt…

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.

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Details

Case: [2018] ACTCA 40
Decision Date: 21 September 2018

CaseChat Overview and Summary

The applicant, Al-Harazi, sought leave to appeal against his sentence out of time. The application was heard by Mossop J in the Supreme Court of New South Wales. Al-Harazi had been convicted by a jury and was now seeking to change his plea, which he argued demonstrated error in the sentencing process.

The primary legal issue before the Court was whether to grant Al-Harazi leave to appeal his sentence out of time. A secondary, related issue was whether Al-Harazi's attempt to change his plea following a jury conviction could establish an arguable basis for an appeal against his sentence or conviction.

Mossop J reasoned that a change of plea or an admission of guilt after a jury trial and conviction does not, in itself, demonstrate an error in the sentencing process. The Court found that there was no utilitarian value in allowing a change of plea at this stage, particularly when no arguable basis for an appeal against the conviction itself had been established. Consequently, the Court determined that there was no sufficient reason to grant leave to appeal out of time.

The application for leave to appeal out of time was dismissed.

Orders

Orders of the court

The application for leave to appeal out of time filed 7 September 2018 is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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