Macfarlan JA at [1]; Rothman J at [72]; Bellew J at [73]
Decision:
(1) Grant leave to appeal; (2) Refuse the applicant leave under r 4 of the Criminal Appeal Rules to rely upon his grounds of appeal against conviction insofar as that leave was necessary; (3) Dismiss the appeal.
Catchwords:
CRIMINAL LAW – aggravated break and enter– application for leave to appeal against conviction and sentence – applicable principles where incompetence of trial counsel alleged – whether reasonable explanation for counsel’s conduct of trial – whether miscarriage of justice occurred – whether sentence manifestly excessive – parity – leave under r 4 Criminal Appeal Rules refused – appeal dismissed
Counsel: Applicant (self-represented) M Cinque SC (Respondent)
Solicitors: C Hyland – Solicitor for Public Prosecutions (Respondent)
File Number(s):
2013/84587
Decision under appeal
Court or tribunal:
District Court
Jurisdiction:
New South Wales
Date of Decision:
25 February 2014 (conviction) 22 August 2014 (sentence)
Before:
King SC DCJ
File Number(s):
2013/84587
Judgment
MACFARLAN JA: Following a trial in the District Court before a judge and jury, the applicant, Mr Adnan Alkhair, was convicted of an offence, contrary to s 112(2) of the Crimes Act 1900 (NSW), of breaking and entering a dwelling- house in Alexandria, Sydney, and committing a serious indictable offence therein, namely stealing a number of items in circumstances of aggravation, being his presence in company with Mr Michael Hanna. The applicant was subsequently sentenced to 4 years imprisonment, with a 3 year non-parole period.
He seeks to appeal against his conviction and sentence on the grounds outlined below. As none of the points he now makes in relation to his conviction were made at his trial, he requires leave under r 4 of the Criminal Appeal Rules (NSW) to advance them to the extent that they raise questions of law. To the extent that they raise questions of fact, he requires leave under s 5(1) of the Criminal Appeal Act 1912 (NSW). He also requires leave under that section to appeal against his sentence.
The subject dwelling-house is a ground floor unit with its main entrance located in an internal…
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
AGLC
Alkhair v R [2016] NSWCCA 4
Case
[2016] NSWCCA 4
Decision Date
CaseChat Overview and Summary
The case of Alkhair v R involved the applicant, Alkhair, who sought leave to appeal against his conviction and sentence for aggravated break and enter. Alkhair alleged incompetence on the part of his trial counsel and argued that his counsel’s conduct during the trial resulted in a miscarriage of justice. He also contended that the sentence imposed was manifestly excessive. The application was heard by the court which needed to determine whether there was a reasonable explanation for the conduct of trial counsel, if a miscarriage of justice occurred, and whether the sentence was manifestly excessive.
The court considered the principles applicable to appeals based on alleged incompetence of trial counsel, examining whether there was a reasonable explanation for counsel’s conduct of the trial. It also assessed whether a miscarriage of justice had occurred, requiring a demonstration that the alleged incompetence was so significant that it likely affected the outcome of the trial. Furthermore, the court evaluated the sentence in relation to parity with similar cases and whether it was manifestly excessive.
After reviewing the arguments and evidence presented, the court found that there was a reasonable explanation for the conduct of trial counsel and that no miscarriage of justice had occurred. The court also concluded that the sentence was not manifestly excessive, considering the nature and circumstances of the offence. Consequently, the court refused leave to appeal under rule 4 of the Criminal Appeal Rules and dismissed the appeal.