Hadba v The Queen

In the case of Nouh Hadba v The Queen, the appellant, Nouh Hadba, was convicted by Magistrate Fryar of an indecent assault on a 14-year-old girl and sentenced to 15 months imprisonment, with the sentence suspended after six months. The appellant appealed against both the conviction and the perceived severity of the sentence. The appeal was referred to the Full Court of the Supreme Court of the Australian Capital Territory, raising questions about the effect of s 9 of the Bail Act 1992 (ACT) in cases where s 216(1) of the Magistrates Court Act 1930 (ACT) applies and the power of the Supreme Court to relieve an unsuccessful appellant of the need to serve the whole of the sentence appealed from, even if they have already spent a lengthy period in custody due to refusal of bail pending the appeal.

The Full Court found that the Magistrate's decision to convict the appellant was correct, as the evidence adduced by the appellant was insufficient to raise a triable issue as to whether his intoxication came about as a consequence of one or more of the exceptional factors specified in s 338(2) of the Crimes Act 1900 (ACT). The court also found that the intoxication did not raise a reasonable doubt as to whether the appellant's actions were voluntary and intentional. The Full Court affirmed the conviction and sentence, ordering that the starting date be backdated by 31 days to reflect the fact that the appellant had already been detained in custody for the whole of the period between 24 February 2004, when initially sentenced, and 26 March 2004, when released on bail.

The Full Court further found that s 218 of the Magistrates Court Act 1930 confers ample jurisdiction upon the Supreme Court to vary the sentence appealed from in order to ensure that any periods spent in custody pending the appeal are properly taken into account. The court dismissed the appeal and affirmed the conviction and sentence, with the starting date backdated by 31 days.