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Hanna v R

Hanna v R

Case [2022] NSWCCA 7 4 February 2022

Appeal

Miscarriage of Justice

Defence Counsel Conduct

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Hanna v R [2022] NSWCCA 7
Hearing dates: 29 September 2021
Date of orders: 4 February 2022
Decision date: 04 February 2022
Before: Johnson J at [1];
Fullerton J at [88];
Dhanji J at [89].
Decision:
Application for an extension of time within which to seek leave to appeal against conviction refused.

Catchwords:
CRIME – application for extension of time to bring appeal against conviction – offence of indecent assault under s.61L Crimes Act 1900 – claim of miscarriage of justice arising from conduct of defence counsel at trial – advice as to whether accused should give evidence at trial – accused did not give evidence – complaint concerning cross-examination of complainant – held accused made informed decision not to give evidence at trial – trial conducted in accordance with instructions of accused – miscarriage of justice not demonstrated – extension of time refused

Legislation Cited:
Crimes Act 1900
Criminal Appeal Act 1912

Cases Cited:
Craig v The Queen (2018) 264 CLR 202; [2018] HCA 13
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Roach v R (2019) 344 FLR 429; [2019] NSWCCA 160
TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
Tsiakas v R [2015] NSWCCA 187

Texts Cited:
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Category: Principal judgment
Parties: Joseph Hanna (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr A Norrie (Applicant)
Ms C Curtis (Respondent)
Solicitors:
Nicopoulos Sabbagh Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2013/154354; 2014/370412
Publication restriction: ---
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Citation:

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Date of Decision:

13 December 2016

Before:

Berman SC DCJ

File Number(s):

2013/154354; 2014/370412

Judgment

JOHNSON J: By Notice of Appeal filed on 31 August 2020, the Applicant, Joseph Hanna, seeks leave to appeal against his conviction at the Sydney District Court on 13 December 2016 for an offence of indecent assault under s.61L Crimes Act 1900 committed on 16 December 2014.
Following a Judge-alone trial, the Applicant was found guilty of this offence by his Honour Judge Berman SC.
The Applicant also stood trial in November 2016 before her Honour Judge Girdham SC and a jury and was convicted of eight other counts of indecent assault under s.61L Crimes Act 1900. With the agreement of the parties, her Honour Judge Girdham SC sentenced the Applicant for all offences, including the offence for which he had been found guilty by his Honour Judge Berman SC at the Judge-alone trial.
On 3 November 2017, the Applicant was sentenced to an aggregate term of imprisonment for four years and nine months commencing on 25 November 2014, comprising a non-parole period of three years and four months expiring on 24 March 2018 and a balance of term of one year and eight months expiring on 24 August 2019.
As part of the aggregate sentencing process, her Honour Judge Girdham SC indicated a sentence of 12 months’ imprisonment for the s.61L…

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 Hanna v R

Details

AGLC: Hanna v R [2022] NSWCCA 7
Case: [2022] NSWCCA 7
Decision Date: 04 February 2022

CaseChat Overview and Summary

In the matter of Hanna versus the Crown, the appellant sought an extension of time to bring an appeal against his conviction for indecent assault under section 61L of the Crimes Act 1900. The appellant claimed a miscarriage of justice due to the conduct of his defence counsel during the trial, particularly regarding advice given about whether he should give evidence. The appellant did not testify, and he alleged that the cross-examination of the complainant was inadequate, but he did not demonstrate that his decision not to testify was not informed or that the trial was not conducted in accordance with his instructions.

The court was tasked with determining whether the appellant's claim of a miscarriage of justice was valid and whether the extension of time should be granted. The court examined the advice given to the appellant by his counsel, the appellant's decision-making process regarding his testimony, and the conduct of the trial. The court found that the appellant had made an informed decision not to testify and that the trial was conducted in accordance with his instructions. The court also noted that the cross-examination of the complainant was not so deficient as to constitute a miscarriage of justice.

Accordingly, the court dismissed the appellant's application for an extension of time. The court held that the appellant had not demonstrated a miscarriage of justice that would warrant an extension of time for an appeal. The decision was based on the appellant's informed decision not to testify, the trial's adherence to his instructions, and the absence of a deficient cross-examination that would justify a miscarriage of justice.

Orders