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 circumstancesLegislation 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 148Category: Principal judgment Parties: Nazih Hanna (Applicant)
Crown (Respondent)Representation: Counsel:
Solicitors:
M Finnane QC (Applicant)
D Kell SC & M Pulsford (Crown)
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
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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.
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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.
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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.)
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Both in written submissions and orally, the Director took objection to the affidavit…
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- AGLC
- Hanna v The Queen [2017] NSWCCA 168
- Case
- [2017] NSWCCA 168
- Decision Date
CaseChat Overview and Summary
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
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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