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Kamali v R

Kamali v R

Case [2019] NSWCCA 186 9 August 2019

Appeal

Jurisdiction

Incompetence of Counsel

Manifestly Excessive Sentence

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Kamali v R [2019] NSWCCA 186
Hearing dates: 15 March 2019
Decision date: 09 August 2019
Before: Simpson AJA at [1]; Bellew J at [98]; Campbell J at [99]
Decision:
(1)   Appeal against conviction dismissed;
(2)   Leave granted to appeal against sentence;
(3)   Appeal against sentence dismissed.

Catchwords:
CRIME – conviction appeal – where applicant consented to joint trial when advised otherwise by counsel – where Crown witness gave damaging answers in response to questions regarding use of prohibited weapons – where defence counsel disclosed fact of the applicant’s previous incarceration during cross-examination of Crown witness – whether incompetence of counsel led to miscarriage of justice
CRIME – sentence appeal – whether sentence manifestly excessive
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 4 Div 1A, s 53A
Crimes Act 1900 (NSW), ss 97, 99(1), 154F, 344A(1)
Criminal Appeal Act 1912 (NSW), ss 5, 6
Criminal Appeal Rules, r 4
Criminal Procedure Act 1986 (NSW), s 29
Weapons Prohibition Act 1998 (NSW), s 7(1)
Cases Cited: Ali v The Queen [2005] HCA 8, (2005) 79 ALJR 662
Alkhair v R [2016] NSWCCA 4; (2016) 255 A Crim R 419
Dawson v The Queen (1961) 106 CLR 1; [1961] HCA 74
Mraz v The Queen (1955) 93 CLR 493; [1955] HCA 59
Nudd v The Queen [2006] HCA 9; (2006) 162 A Crim R 301
Perry v The Queen (1982) 150 CLR 580; [1982] HCA 75
R v Birks (1990) 19 NSWLR 677
R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
Seymour v R (2006) NSWCCA 206; (2006) 162 A Crim R 576
Sutton v The Queen (1984) 152 CLR 528; [1984] HCA 5
TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
Category: Principal judgment
Parties: Benjamin Kamali (Applicant)
Regina (Respondent)
Representation:
Counsel:
S Fraser (Applicant)
M England/K Curry (Respondent)
Solicitors:
Catherine Hunter Solicitor (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2013/232205
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

16 March 2017

Before:

Bennett DCJ

File Number(s):

2013/232205

HEADNOTE

[This headnote is not to be read as part of the judgment]

In October 2016, the applicant was charged in the District Court on an indictment that contained seven counts. The conduct which constituted Counts 1-3 arose from his demand for money from a Mr Konchady and threatening to do harm to him, and his attempted stealing of a car. Counts 4-7 concerned prohibited weapons located on his property during the course of execution of a search warrant arising from the earlier counts.

The applicant entered a plea of not guilty to each count, and a joint trial of the two groups of offences proceeded. During the examination in chief of a Crown witness, the witness was questioned as to the intended use of the weapons, to which she indicated they were to be used…

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 Kamali v R

Details

AGLC: Kamali v R [2019] NSWCCA 186
Case: [2019] NSWCCA 186
Decision Date: 09 August 2019

CaseChat Overview and Summary

The case of Kamali v R involved the applicant appealing against his conviction and sentence on the basis of alleged incompetence of counsel and manifest excessiveness of sentence. The applicant had been convicted of various serious offences including armed robbery and was sentenced to imprisonment. The applicant argued that his consent to a joint trial with co-accused, given under the advice of his counsel, was not informed and that this led to a miscarriage of justice. Additionally, the applicant claimed that the incompetence of counsel, who disclosed his previous incarceration during cross-examination, resulted in a miscarriage of justice. The applicant further contended that the sentence imposed was manifestly excessive.

The central legal issues before the court were whether the applicant's consent to the joint trial was informed and whether the conduct of his counsel constituted incompetence that led to a miscarriage of justice. The court also needed to determine if the sentence was manifestly excessive. In assessing the informed consent, the court examined whether the applicant had been properly advised by his counsel and whether this advice was accurate and comprehensive. Regarding the alleged incompetence of counsel, the court scrutinised the actions of the defence counsel during the trial, particularly the disclosure of the applicant’s previous incarceration, to determine if these actions fell below an objective standard of competence. Finally, the court reviewed the sentence to ascertain if it was manifestly excessive, considering the nature and circumstances of the offences and the principles of sentencing.

The court found that the applicant had been adequately informed about the implications of a joint trial and that his consent was therefore valid. The court rejected the claim of incompetence, holding that the counsel's decision to disclose the applicant's previous incarceration was a tactical choice and did not fall below the required standard of competence. Regarding the sentence, the court concluded that while the offences were serious, the sentence was not manifestly excessive. Consequently, the appeal against both the conviction and the sentence was dismissed.

Orders