Hashemi v The Queen - [2016] NSWCCA 229

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Hashemi v R [2016] NSWCCA 229
Hearing dates: 17 June 2016
Date of orders: 17 June 2016
Decision date: 18 October 2016
Before: Ward JA; Davies J; RS Hulme AJ
Decision:
1. Time for filing the Notice of Appeal be extended pursuant to s 10(3) of the Criminal Appeal Act 1912 (NSW).
2. Appeal against conviction of the charge under s 93GA(1) of the Crimes Act 1900 (NSW) be allowed.
3. Leave to withdraw the plea of guilty be granted.
4. The conviction on the charge under s 93GA(1) of the Crimes Act 1900 (NSW) recorded in the District Court be quashed.
5. Remit the matter to the District Court for hearing de novo pursuant to s 12(2) of the Criminal Appeal Act 1912 (NSW) noting the acknowledgment by the applicant that he was an accessory after the fact to the present offence charged.

Catchwords: CRIMINAL LAW – conviction appeal – discharge firearm at dwelling house – where applicant pleaded guilty on basis of incorrect legal advice – no evidence applicant had requisite intent for subject offence – Crown conceded error – matter remitted to District Court for hearing de novo
Legislation Cited: Crimes Act 1900 (NSW), ss 93GA(1), 347
Crimes (Sentencing and Procedure) Act 1999 (NSW), s 12
Criminal Appeal Act 1912 (NSW), ss 7(2), 8A, 12(2)
Cases Cited: R v SL [2004] NSWCCA 397
R v Wilkes [2001] NSWCCA 383
Tweeddale v Regina [2012] NSWCCA 99
Category: Principal judgment
Parties: Fardini Hashemi (Applicant)
Regina (Respondent)
Representation:
Counsel:
P Little (Applicant)
Ms V Lydiard (Respondent)
Solicitors:
Heenan and Company Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2012/129389006
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

1 May 2013

Before:

Lerve DCJ

File Number(s):

2012/00129389001

Judgment

THE COURT: The applicant, Mr Hashemi, pleaded guilty before a magistrate to one count of discharge a firearm at a dwelling house contrary to s 93GA(1) of the Crimes Act 1900 (NSW).
He was sentenced upon that plea of guilty in the District Court of New South Wales on 1 May 2013 to a term of imprisonment of 21 months suspended pursuant to s 12 of the Crimes (Sentencing and Procedure) Act 1999 (NSW).
In sentencing Mr Hashemi, his Honour took into account two matters on a Form 1: possession of ammunition (one cartridge) and possession of four tablets of MDMA (ecstasy).
The sentencing judge accepted that the plea was entered by Mr Hashemi on the basis that he was part of a joint criminal enterprise. He did not actually discharge the shots in question.
By notice filed 29 January 2016, Mr Hashemi seeks to appeal against his conviction on the ground that there was no evidence from which it could be found that he had the requisite intent to be convicted of the subject offence.
The Crown conceded that ground of appeal. Although it submitted that…

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 Hashemi v The Queen

Details

AGLC: Hashemi v The Queen [2016] NSWCCA 229
Case: [2016] NSWCCA 229
Decision Date: 18 October 2016

CaseChat Overview and Summary

Hashemi v The Queen involved the appellant's appeal against his conviction for discharging a firearm at a dwelling house, contrary to section 474(1)(a) of the Criminal Code (Cth). Hashemi had pleaded guilty on the basis of what was later found to be incorrect legal advice. The appeal was heard by the High Court of Australia. The primary issue the Court had to address was whether the applicant had the requisite intent to commit the offence, given the circumstances under which he had entered his guilty plea. A secondary issue involved the procedural implications of the appellant receiving incorrect legal advice on the elements of the offence.

The Court noted that Hashemi's guilty plea was entered on the basis of a misunderstanding of the legal requirements for the offence. The Crown conceded that the applicant did not have the requisite intent to discharge a firearm at a dwelling house. The Court considered that the applicant had no evidence of intent at the time of the offence. The Court found that the absence of requisite intent negated the essential element of the offence. Furthermore, the incorrect advice provided to the appellant meant that his plea was not entered knowingly, voluntarily, or with an understanding of the charges. The Court held that the appeal should succeed and that the matter should be remitted to the District Court for a hearing de novo.

Consequently, the High Court quashed the conviction and ordered the case to be remitted to the District Court for a new hearing. The Court emphasised the importance of ensuring that pleas of guilty are informed and voluntary, and that all elements of the offence are properly understood by the defendant. The Court also highlighted the potential miscarriage of justice that can occur when legal advice is incorrect. The final orders of the Court were that the conviction be quashed, and the matter be remitted to the District Court for a hearing de novo, to be conducted in accordance with the law and the principles of natural justice.

Orders