1. Leave is refused in relation to each of the grounds of appeal.
2. Dismiss the appeal.
In relation to the sentence appeal:
1. Grant leave to appeal.
2. Dismiss the appeal.
Catchwords:
CRIME – Appeals – Appeal against conviction – Where evidence of text conversations between complainant and relative of applicant had been admitted by the primary judge – Whether evidence was admitted in error – Whether admission of evidence caused a miscarriage of justice
CRIME – Appeals – Appeal against conviction – Where evidence of messages sent by the complainant had been obtained improperly but were admitted on the basis of relevance – Where the evidence was not admitted until the complainant and other Crown witnesses had already been cross-examined – Whether the failure to determine the admissibility of the evidence until after the Crown witnesses had been cross-examined was an error or caused a miscarriage of justice
CRIME – Appeals – Appeal against conviction – Incompetence of counsel – Whether failure of counsel to object to admission of evidence occasioned a miscarriage of justice
CRIME – Appeals – Appeal against conviction – Incompetence of counsel – Whether failure of counsel to determine admissibility of evidence prior to cross-examination of the complainant caused a miscarriage of justice
CRIME – Appeals – Appeal against sentence – Where two counts of intimidation also involved suffocation – Whether sentencing judge fell into De Simoni error by sentencing on the basis of findings constituting a more serious offence
CRIME – Appeals – Appeal against sentence seriousness – Where count of common assault constituted fourth of four counts in final episode of abuse after nine years of domestic violence – Whether sentencing judge erred in finding count was at the mid-range of objective
CRIME – Appeals – Appeal against sentence – Where offending involved 28 counts of domestic violence over nine years – Whether aggregate sentence was manifestly excessive
[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
Habambo v The King [2023] NSWCCA 328
Case
[2023] NSWCCA 328
Decision Date
CaseChat Overview and Summary
In the case of Habambo v The King, the applicant appealed against both his conviction and sentence, challenging the admissibility of certain evidence and the severity of the sentence imposed. The primary judge had admitted evidence of text conversations between the complainant and a relative of the applicant, as well as messages sent by the complainant, despite the contention that these were obtained improperly. The applicant argued that the admission of this evidence, after the complainant and other Crown witnesses had already been cross-examined, constituted an error that led to a miscarriage of justice. Additionally, the applicant contended that the failure of his legal counsel to object to the admissibility of the evidence or to determine its admissibility before cross-examination amounted to incompetence, thereby also causing a miscarriage of justice.
The court examined whether the admission of the text conversations and messages, which were initially deemed relevant, was an error that had an impact on the fairness of the proceedings. The court also considered whether the timing of the admissibility determination, occurring post-cross-examination, was problematic. Furthermore, the court assessed the argument regarding the incompetence of counsel and whether this failure led to a miscarriage of justice. The court was required to determine whether the error in the admission of evidence or the incompetence of counsel had compromised the integrity of the trial.
The court found that the admission of the contested evidence did not cause a miscarriage of justice, as the evidence had a bearing on the credibility of the complainant and the context of the charges. The court ruled that the failure of counsel to object or to determine admissibility prior to cross-examination did not amount to incompetence and did not result in a miscarriage of justice. Regarding the sentence, the court concluded that the sentencing judge did not fall into a De Simoni error by considering findings related to a more serious offence when determining the sentence. The court also found that the sentence for the count of common assault, despite being the fourth count in a series of domestic violence offences, was not manifestly excessive.
The final orders of the court were that the appeal against both conviction and sentence be dismissed, affirming the decision of the primary judge. The court upheld the conviction and sentence, finding no grounds for a new trial or a reduction in the sentence.