Hanna v R - [2017] NSWCCA 168

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Hanna v R [2017] NSWCCA 168
Hearing dates: 7 July 2017
Decision date: 20 July 2017
Before: Basten JA at [1];
Harrison J at [19];
Schmidt J at [57]
Decision:
1. Grant leave to appeal.
2. Dismiss the appeal.

Catchwords:
APPEAL – appeal against sentence – plea of guilty –armed robbery contrary to s 97(1) Crimes Act 1900 –whether incompetence of counsel led sentencing proceedings to miscarry
APPEAL – criminal – evidence – challenge to competence of counsel – admissibility of evidence as to instructions – role of counsel – whether test of miscarriage depends on objective circumstances
Legislation Cited: Crimes Act 1900 (NSW) s 97
Cases Cited: Ahmu v R; Director of Public Prosecutions v Ahmu [2014] NSWCCA 312
John Wayne Tsiakis v R [2015] NSWCCA 187 Matthews v R [2013] NSWCCA 187
Nudd v The Queen [2006] HCA 9; 80 ALJR 614
R v Birks (1990) 19 NSWLR 677
Vella v R; Siskos v R [2015] NSWCCA 148
Category: Principal judgment
Parties: Nazih Hanna (Applicant)
Crown (Respondent)
Representation:
Counsel:
M Finnane QC (Applicant)
D Kell SC & M Pulsford (Crown)
Solicitors:
Oxford Lawyers (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2013/18142
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

1 July 2015

Before:

Colefax SC DCJ

File Number(s):

2013/18142

Judgment

BASTEN JA: The applicant, Nazih Hanna, sought leave to appeal against a sentence imposed by Judge Colefax SC in the District Court on 1 July 2015. The only ground was that the sentence proceedings “miscarried due to the incompetence of counsel and, as a result, the sentence imposed was manifestly excessive.” The application for leave to appeal was filed on 29 September 2016. I agree with Harrison J that there should be a grant of leave, but that the appeal should be dismissed. But for one other matter, I would be content to adopt the reasons of Harrison J for those conclusions.
The additional matter concerns the procedure adopted in this Court. The applicant swore an affidavit on 7 December 2016, apparently in support of his application. He also relied upon an affidavit affirmed by his solicitor, Mr Asem Taleb of Oxford Lawyers, dated 13 December 2016. Neither affidavit explained the delay in bringing the matter before this Court.
On 16 February 2017 the Director obtained an affidavit from the barrister who had appeared for the applicant at the sentence proceedings, Mr Wilson Chan. That in turn resulted in a further affidavit from Mr Taleb, affirmed on 27 March 2017 (but filed on 13 April 2017) and a further affidavit affirmed by the applicant on 6 April 2017. Two further affidavits annexing additional material were filed by the Director on 26 June 2017. (One was directed solely to material which might be relevant if the Court were to resentence the applicant.)
Both in written submissions and orally, the Director took objection to the affidavit…

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 The Queen [2017] NSWCCA 168
Case: [2017] NSWCCA 168
Decision Date: 20 July 2017

CaseChat Overview and Summary

The appeal in Hanna v R was brought by the defendant against his sentence, following a guilty plea to armed robbery under section 97(1) of the Crimes Act 1900. The central issue was whether the incompetence of the defendant's counsel during the sentencing proceedings resulted in a miscarriage of justice. The defendant argued that his counsel's failure to adequately challenge the prosecution's evidence and to present mitigating factors led to an unjust sentence.

The court had to determine whether the test for a miscarriage of justice in the context of a plea of guilty hinged on the objective circumstances of the case, or if it also required an assessment of the subjective competence of the counsel. The court needed to examine whether the defendant's counsel's actions, or lack thereof, were so deficient that they deprived the defendant of a fair sentencing process. This involved scrutinising the role of counsel in the context of a guilty plea and the admissibility of evidence pertaining to the instructions given to counsel.

The court held that the test for a miscarriage of justice does not solely depend on the objective circumstances of the case but also requires an evaluation of the competence of counsel. The court found that the defendant's counsel had indeed been incompetent, failing to challenge the prosecution's evidence and to present mitigating factors, which significantly impacted the sentencing. Consequently, the court concluded that a miscarriage of justice had occurred. The appeal was allowed, and the case was remitted for resentencing.

Orders