Kamali v R

[2019] NSWCCA 186

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 for criminal activity. During cross-examination of that witness, defence counsel admitted into evidence the fact that the applicant had previously been in custody for a period of time. After the summing up, the jury returned verdicts of guilty on all counts. The applicant was sentenced to an aggregate term of imprisonment of 10 years, with a non-parole period of 6 years.

The applicant appealed his conviction and sentence on two main grounds:

(1)   that there has been a miscarriage of justice as a result of his trial counsel’s incompetence in failing to seek a separation of counts 1-3 from counts 4-7 on the indictment, in failing to seek directions after questions relating to the intended use of the weapons and in admitting evidence as to the applicant’s time in custody.

(2)   that the sentence imposed is manifestly excessive.

Held, granting leave to raise the appeal against sentence but dismissing the appeal (per Simpson AJA, Bellew and Campbell JJ agreeing):

In relation to ground (1):

(i) Generally speaking, a client is bound by the decisions made by their counsel. For an appellate court to intervene, it must be shown that the incompetence of counsel gave rise to a miscarriage of justice in the sense that the applicant lost a chance of acquittal that was fairly open: [31], [33]-[50], [98], [99].

R v Birks (1990) 19 NSWLR 677; TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46; Nudd v The Queen [2006] HCA 9; (2006) 162 A Crim R 301; Seymour v R [2006] NSWCCA 206; (2006) 162 A Crim R 576; Alkhair v R [2016] NSWCCA 4; (2016) 255 A Crim R 419 applied.

(ii) Despite their advice that an application for separate trials for the two groups of offences ought to be made, counsel are entitled to respect the autonomy of the applicant in consenting to a joint trial: [60], [61], [98], [99].

(iii) The line of questioning directed to the Crown witness about the intended use of the weapons was objectionable, and the trial judge’s overruling of the defence counsel’s objection was wrong. However, in the course of the summing up, the trial judge stated that that witness’s evidence might be unreliable and that the jury should exercise caution before accepting it and attributing to it significance. There was therefore no miscarriage of justice: [64], [69], [71], [98], [99].

(iv) Although trial counsel’s cross-examination of the Crown witness displayed a level of ineptitude that cannot be explained by any rational decision making, it did not result in a miscarriage of justice as the applicant was not deprived of a chance of acquittal that was fairly open to him: [73], [75]-[78], [98], [99].

Nudd v The Queen [2006] HCA 9; (2006) 162 A Crim R 301 applied.

In relation to ground (2):

(v) Having regard to the objective seriousness of the offences and the applicant’s personal circumstances, the sentence imposed was not manifestly excessive: [89], [91]-[94], [95], [98], [99].

R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 applied.

Judgment

1. SIMPSON AJA: On 4 October 2016 the applicant was arraigned in the District Court on an indictment that contained seven counts. He entered a plea of not guilty to each. A jury was accordingly empanelled and a trial proceeded. On 17 October 2016 the jury returned verdicts of guilty on all counts. On 16 March 2017 the applicant was sentenced to an aggregate term of imprisonment of 10 years commencing on 6 October 2016 with a non-parole period of 6 years which will expire on 5 October 2022.

2. The applicant now seeks leave to appeal against both the convictions and the sentence.

The indictment

3. The counts on the indictment were:

• Counts 1-2: demand property with menaces with intent to steal, committed on 20 June 2013. Pursuant to s 99(1) of the Crimes Act 1900 (NSW) a maximum penalty of imprisonment for 10 years is applicable;

• Count 3: attempt to steal a motor vehicle, committed between 24 June 2013 and 30 June 2013. Pursuant to s 154F and s 344A(1) of the Crimes Act a penalty of imprisonment for 10 years is applicable;

• Counts 4-7: possession of prohibited weapons without a permit, contrary to s 7(1) of the Weapons Prohibition Act 1998 (NSW), committed on 4 July 2013, in respect of which a maximum penalty of imprisonment for 14 years is applicable. Pursuant to Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Procedure Act”) a standard non-parole period of 3 years is prescribed (that has since been increased, but 3 years is applicable to these offences).

The Crown case

4. The offences charged may be divided into two groups, in respect of which the Crown case was as follows.

Counts 1-3

5. During the afternoon of 20 June 2013 the applicant, accompanied by a woman (Ms Lyndall Robson), attended a residence in Pendle Hill. The owner of the residence, Mr Yogesh Leelchand, was overseas. The premises were occupied by Mr Leelchand’s nephew, Mr Nishinth Konchady. The applicant told Mr Konchady that he (the applicant) was owed money by Mr Leelchand. The applicant threatened Mr Konchady that, if he did not hand over money to the applicant “my boys” would do harm to Mr Leelchand or his property. He demanded $2,500.

6. Although Mr Konchady said he knew nothing of any debt, the applicant drove him in the applicant’s car to an ATM, where Mr Konchady withdrew $800 (his daily limit). This gave rise to Count 1 on the indictment. The applicant said that he would return after midnight so that Mr Konchady could withdraw another $800. Mr Konchady then offered to make the transfer electronically and did so in the amount of $1,500. This gave rise to Count 2 on the indictment. Mr Konchady subsequently cancelled the transfer.

7. A Toyota Camry, the property of Mr Leelchand, was parked in front of the premises. As he left, the applicant took the ignition keys for the vehicle and asked Mr Konchady for the registration papers, which Mr Konchady could not locate. Mr Konchady then deflated all the tyres on the Camry.

8. Before he left, the applicant warned Mr Konchady not to inform police. Nevertheless, after speaking to his uncle, Mr Konchady did report the incident.

9. The following day (21 June) Mr Konchady installed locks on the gates to the premises, but these were removed during his absence on that day. The registration plates on the vehicle were also removed.

10. Four days later (25 June) the applicant returned to the premises, with another man, in a “technician’s” (mechanic’s) vehicle and attempted, unsuccessfully, to start the Camry by installing a new battery. On 29 June the applicant returned again, this time with a tow truck. He and the truck driver began to load the Camry onto the tow truck. As they were doing so, police arrived, having been called by Mr Konchady. The applicant ran away. The attempt to remove the vehicle gave rise to Count 3 on the indictment.

11. The applicant was arrested and identified by police. As a result, a search warrant was executed at the applicant’s home on 4 July 2013.

Counts 4-7

12. Located in the course of the execution of the search warrant were (as recorded in the indictment) a pipe bomb, a converted butane canister, and two improvised explosive devices, each being a weapon possession of which, without a permit, is prohibited under the Weapons Prohibition Act.

The trial

13. The following is confined to evidence given in the trial to which it is necessary to refer for the purposes of the appeal against conviction.

14. In relation to Counts 1-3, the principal Crown witness was Mr Konchady. Mr Konchady gave an account of the events summarised above. He said that, for the purposes of the electronic transfer of funds, the applicant gave him bank account details, and the name “Benjamin Kamali”. Exhibit B was a bank record documenting the transaction. Of the events concerning the attempted theft of the motor vehicle, Mr Konchady said that, on 25 June, he was at home studying for an examination when he became aware of the presence in the front of the house of two men, one of whom he identified as the man who had come to the house four days earlier. The men appeared to be trying to charge the battery of the Camry. Using the video facility on his telephone, he recorded what the men were doing. One of the men in the video was the applicant.

15. The Crown called a number of other witnesses, to whose evidence it is not necessary, for present purposes, to refer. One witness whose evidence is relevant for that purpose is Ms Tracey Bain. Ms Bain said that she had known the applicant “for a couple of years now”, and had, on occasions in the middle of 2013, stayed at his house over a period of days. She was asked about her knowledge of the explosive devices located in the house. The transcript records the following evidence in chief:

“Q.   Can you tell the Court about your knowledge of that matter?

A.   Just some, just some crackers and fireworks.

Q.   What do you know about them?

…

A.   We were making them.

Q.   How were you making them?

A.   We were just making them. To be honest with you, I was off my head back them days and I can’t really remember, to be honest with you.

Q.   When you say ‘We were making them,’ who’s ‘We’?

A.   Benji and I.

Q.   Was anybody else involved?

A.   No.

Q.   Do you remember where you obtained the materials that you used to make them?

A.   No.

Q.   Is that because you don’t remember doing that yourself?

A.   Yes. Yes.

Q.   Does that mean that you and Benji were doing it and the materials were already there?

A.   Yes.

Q.   Where were you doing this?

A.   In the lounge room.

Q.   In the lounge room of whose house?

A.   Benji’s.

…

Q.   Do you know why you were doing this?

[Defence counsel objected on the basis that “it’s such a vague question”. Before he could finish explaining the objection, it was overruled.]

…

A.   No.

Q.   Did you know what they were going to be used for?

A.   No.

Q.   What did you think they were going to be used for?

A.   For some jobs.

Q.   What does ‘jobs’ mean?

A.   Just some, I don’t know, to make money, I guess. I don’t know.

…

Q.   How did you think that these devices were going to be used to make money?

A.   Well, they were made pretty good so you could break windows to get into jewellery shops or banks or anything, really.

Q.   Did you have any discussions with Benji about this?

A.   No.

Q.   Whose idea was it to do this?

A.   Both of ours.”

16. In cross-examination Ms Bain agreed that, at the time she was “a heavy ice user”, and that, consequently, her memory of events was very poor. She agreed that she might have been mistaken in saying that the applicant was involved in the manufacture of one of the devices.

17. Counsel then turned to the subject of theft by Ms Bain of money and a motor vehicle that belonged to the applicant, something she admitted having done. Counsel approached this issue in this way:

“Q.   At some point in June did you become aware that my client had gone into custody?”

to which she replied “Yes”. She then acknowledged that while the applicant was in custody, she had stolen the items.

18. The applicant did not give or call any evidence. At the commencement of his final address, counsel outlined for the benefit of the jury the issues for determination. With respect to Counts 1 and 2, he did not attempt to challenge the evidence that the applicant had been present at Mr Konchady’s house or that he had received money from him. His submission was:

“… that the Crown has failed to prove the element of menace …”

19. With respect to Count 3, he submitted that the applicant had consent from “the apparent owner of the car” and that the Crown had failed to prove that the lawful owner did not give consent. With respect to the Weapons Prohibition Act counts, his argument was that the Crown had failed to prove beyond reasonable doubt that the items were in the possession of the applicant.

20. Obviously, by the verdicts the jury rejected all of these submissions.

The appeal against conviction

21. By s 5(1)(a) of the Criminal Appeal Act 1912 (NSW) a person convicted on indictment may appeal (as of right) to this Court on any ground which involves a question of law alone; and, by sub-s (1)(b), with the leave of the Court, on any ground which involves a question of fact alone, a question of mixed law and fact, or “any other ground which appears to the court to be a sufficient ground of appeal”. By s 6 the court is to allow the appeal if of the opinion that the verdict of the jury should be set aside on any of a number of grounds. The grounds are:

• that the verdict was unreasonable or could not be supported having regard to the evidence;

• the wrong decision of any question of law; and

• that “on any other ground whatsoever there was a miscarriage of justice”.

22. The Notice of Appeal initially identified three grounds of appeal, as follows:

“1.   The trial miscarried as result of the incompetence of defence counsel.

2.   Rule 4 applies in respect of the above ground and according [sic] leave is required.

3.   The appellant additionally seeks leave to appeal against the sentence imposed upon him on the following grounds:

Ground One: The sentence imposed is manifestly excessive.”

23. The reference in par 2 to “Rule 4” is a reference to r 4 of the Criminal Appeal Rules, which is in the following terms:

“No direction, omission to direct, or decision as to the admission or rejection of evidence, given by the Judge presiding at the trial, shall, without the leave of the Court, be allowed as a ground for appeal or an application for leave to appeal unless objection was taken at the trial to the direction, omission, or decision by the party appealing or applying for leave to appeal.”

24. The apparent concession made in par 2 that r 4 applies to Ground 1 is curious, and reveals a misunderstanding of r 4. How failure to take any point arising from the alleged incompetence of counsel can be a failure to take objection to any “direction, omission to direct or decision as to the admission or rejection of evidence” is not at all clear to me. In respect to the ground alleging incompetence of counsel, r 4 is irrelevant. What became clear was that the incompetence alleged lay in the failure of counsel to take certain points.

25. By leave granted during the course of the hearing of the appeal, on behalf of the applicant a document entitled “Amended Grounds of Appeal” was filed. It is in the following terms:

“1.   The Trial miscarried as a result of the incompetence of defence counsel.

2.   An unfair trial occurred as a result of the failure to seek the separation of Counts 1-3 from Counts 4-7 on the indictment such that all counts were tried together.

3.   An unfair trial occurred as a result of the introduction of evidence of the intended use of the explosive devices.

4.   An unfair trial occurred as a result of the admission of unfairly prejudicial evidence that the applicant had previously been in custody for a period of time.

The applicant additionally relies upon the following ground of appeal against sentence:

1.   The sentence imposed is manifestly excessive.”

26. None of the grounds identified involves a question of law alone. The applicant does not, therefore, have a right of appeal under s 5(1)(a). Nor does any of the grounds as stated raise any question of fact or of mixed law and fact. Rather, they rely upon “any other ground whatsoever”, in s 6 of the Criminal Appeal Act, by which the court “must” allow an appeal if satisfied that there has been a miscarriage of justice. The applicant requires leave to appeal against the convictions.

27. The fundamental proposition stated in Ground 1 of each document is that the applicant was incompetently represented at trial, and that the incompetence resulted in a miscarriage of justice. Grounds 2, 3 and 4, as reformulated in the Amended Grounds of Appeal are, essentially, particulars of Ground 1. The applicant’s contentions of incompetence were further particularised in the written submissions as:

“i.   The failure to seek a separation of counts 1-3 from counts 4-7 on the indictment.

ii.   The failure to object to questions surrounding any intended use of the explosive devices.

iii.   The failure to seek a discharge of the jury following the admission of evidence of the use of the devices.

iv.   In the absence of an application to discharge the jury, the failure to request that the jury be directed not to use such evidence in relation to counts 1-3.

v.   The admission of evidence that the appellant had previously been in custody.”

28. Central to the appeal against conviction was the claim that the trial had been conducted by defence counsel incompetently, such as to give rise to a miscarriage of justice.

29. Three separate aspects of the trial were said to evidence such incompetence. They relate to:

1. the joint trial of the two groups of offences, in particular, the failure of counsel to seek an order for separate trials;

2. evidence given in the trial by Ms Bain concerning the intended or proposed use of the explosive devices the subject of Counts 4-7; and

3. the question asked, by defence counsel, of Ms Bain that disclosed that the applicant had previously been in custody.

Incompetence of counsel as a ground of appeal: principles

30. Before turning to the three specific instances of alleged incompetence, it is useful to make some general observations.

31. At least since the decision of this Court in R v Birks (1990) 19 NSWLR 677 it has been clear law that “flagrant incompetence” in the manner in which a trial has been conducted by counsel might give rise to a miscarriage of justice within the meaning of s 6 of the Criminal Appeal Act. The circumstances in which that principle has been invoked are many and various. But the cases in which it has been successfully invoked are few in number. That is because, as the following review will demonstrate, the proper subject for examination is not the conduct of counsel, but its consequence. The available ground of appeal is not that counsel was incompetent, but that a miscarriage of justice occurred. That reflects the language of s 6 of the Criminal Appeal Act. A miscarriage of justice might be explained by the incompetence of counsel, if that is established. But incompetence of counsel in the conduct of a trial does not, of itself, establish a miscarriage of justice.

32. In considering a ground of appeal based on the asserted incompetence of counsel, it is necessary to bear in mind some underlying features of the system of justice under which courts operate.

33. In Birks, Gleeson CJ (with whom McInerney J agreed) began his consideration of the circumstances in which counsel incompetence might be found to warrant setting aside a verdict of guilty by emphasising the role of counsel in the adversarial system under which litigation, both criminal and civil, is conducted in NSW. Counsel have a wide discretion as to the manner in which the litigation is conducted, the discretion extending to matters such as the witnesses to be called, the questions to be asked either in chief or in cross-examination, the evidence to be adduced, and the lines of argument to be pursued or abandoned. The client is bound by the decisions made in the exercise of these discretions.

34. Gleeson CJ extracted from decided cases the following three principles.

“1.   A Court of Criminal Appeal has a power and a duty to intervene in the case of a miscarriage of justice, but what amounts to a miscarriage of justice is something that has to be considered in the light of the way in which the system of criminal justice operates.

2.   As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence.

3.   However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of ‘flagrant incompetence’ of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention.”

35. In TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, McHugh J described the role of counsel as “in effect the party’s agent” (at [74]). For that reason, an appellant seeking to establish miscarriage of justice by reason of counsel incompetence “carries a heavy burden”. The burden is to establish that what is characterised as incompetence caused a miscarriage of justice.

36. What was alleged to be incompetence in TKWJ was the failure of trial counsel to seek an advance ruling as to the admissibility of certain evidence that the Crown proposed to call in rebuttal in the event that, as he proposed, counsel called character evidence relating to TKWJ.

37. Gleeson CJ restated the approach he had taken in Birks (see, for example [8]). He then said:

“16   It is undesirable to attempt to be categorical about what might make unfair an otherwise regularly conducted trial. But, in the context of the adversarial system of justice, unfairness does not exist simply because an apparently rational decision by trial counsel, as to what evidence to call or not to call, is regarded by an appellate court as having worked to the possible, or even probable, disadvantage of the accused. For a trial to be fair, it is not necessary that every tactical decision of counsel be carefully considered, or wise. And it is not the role of a Court of Criminal Appeal to investigate such decisions in order to decide whether they were made after the fullest possible examination of all material considerations. Many decisions as to the conduct of a trial are made almost instinctively, and on the basis of experience and impression rather than analysis of every possible alternative. That does not make them wrong or imprudent, or expose them to judicial scrutiny. Even if they are later regretted, that does not make the client a victim of unfairness. It is the responsibility of counsel to make tactical decisions, and assess risks …”

38. Gaudron J might be seen to have taken a different approach. Her Honour said:

“28   As already indicated, if there is a defect or irregularity in the trial, the fact that counsel’s conduct is explicable on the basis that it resulted or could have resulted in a forensic advantage is not necessarily determinative of the question whether there has been a miscarriage of justice. It may be that, in the circumstances, the forensic advantage is slight in comparison with the importance to be attached to the defect or irregularity in question. If so, the fact that counsel’s conduct is explicable on the basis of forensic advantage will not preclude a court from holding that, nevertheless, there was a miscarriage of justice.” (internal citation omitted)

But her Honour had earlier said:

“26   The question whether there has been a miscarriage of justice is usually answered by asking whether the act or omission in question ‘deprived the accused of a chance of acquittal that was fairly open’. The word ‘fairly’ should not be overlooked. A decision to take or refrain from taking a particular course which is explicable on basis that it has or could have led to a forensic advantage may well have the consequence that a chance of acquittal that might otherwise have been open was not, in the circumstances, fairly open.” (internal citations omitted)

39. Hayne J agreed with Gleeson CJ that the relevant question was whether there could be a reasonable explanation for the decision (at [112]).

40. McHugh J posed two questions for consideration:

“79   … First, did counsel’s conduct result in a material irregularity in the trial? Secondly, is there a significant possibility that the irregularity affected the outcome?”

41. All members of the Court agreed that the critical question is whether miscarriage of justice has been shown.

42. These principles have been restated by the High Court in two decisions since TKWJ: Ali v The Queen [2005] HCA 8, (2005) 79 ALJR 662 and Nudd v The Queen [2006] HCA 9; (2006) 162 A Crim R 301. Nudd is, perhaps, on its facts, the most extreme example of the application of the principles. That was a case in which the incompetence of counsel, to a significant degree, was accepted. Mr Nudd was charged with being knowingly concerned in the importation by ship into Australia of a substantial quantity of cocaine. At trial he was represented by counsel who had no experience of conducting a major criminal trial, and whose instructing solicitor was similarly inexperienced. Counsel proceeded under a fundamental misapprehension of the elements of the offence (see [143]); neither counsel nor the solicitor took a statement from Mr Nudd (at [144]); counsel made concessions concerning Mr Nudd’s knowledge of the cargo of the ship; and, in his address to the jury, he accepted (without instructions) that it was Mr Nudd’s voice on tape recordings that were in evidence. Callinan and Heydon JJ considered that counsel’s conduct of the case:

“… was incompetent to a serious degree” ([158])

and that some of his conduct could not:

“… be rationally justified or explained …”

43. Notwithstanding the manifest inadequacies of representation the Queensland Court of Appeal and the High Court unanimously dismissed the appeal, holding that no miscarriage of justice had been demonstrated. Reading the judgments in the High Court demonstrates that the strength of the Crown case was seen as a significant factor in limiting the adverse impact of the inadequacies of representation.

44. Birks was one of small number of cases in which the application of the principles resulted in the jury verdict being set aside and a new trial ordered. In that case, inexperienced counsel omitted (in a trial of multiple charges of sexual offences) to cross-examine the complainant on factual matters critical to the defence, resulting in adverse comment being made by both the Crown prosecutor and the trial judge when Mr Birks gave evidence on those matters. It was held (by all members of the Bench) that Mr Birks had not received a fair trial – that is, that a miscarriage of justice had occurred.

45. Another case that resulted in a jury verdict being set aside was Seymour v R [2006] NSWCCA 206; (2006) 162 A Crim R 576. Mr Seymour was charged with an offence of kidnapping, and one of being armed with an instrument with intent to commit an indictable offence (assault); the victim of each was alleged to have been a woman who had accused him of child molestation. Counsel did not object to evidence of the complainant in which she said that Mr Seymour had told her that he had just got out of gaol five days earlier. Counsel quite deliberately introduced into evidence details of Mr Seymour’s criminal record. He elicited from a police witness evidence that Mr Seymour had a lengthy record, which was confined to “property related offences” and assault (although there was an unspecified record in another state).

46. The decision by counsel to adduce this evidence was a deliberate and considered one. The point he sought to make by the disclosure of the evidence was that Mr Seymour had no record of “violent behaviour against women”. In cross-examination of a police witness, and in final address, counsel placed “extraordinary emphasis” on Mr Seymour’s record and character.

47. Hunt AJA (with whom Rothman J and I agreed) said:

“46   … It is difficult, however, to imagine more damaging evidence in a jury trial beyond the direct and circumstantial evidence of the crime than the fact that an accused has a criminal record. In Dawson v The Queen (1961) 106 CLR 1 at 16 [[1961] HCA 74], Dixon CJ said:

It is the thesis of English law that the ingredients of a crime are to be proved by direct or circumstantial evidence of the events, that is to say, the parts and details of the transaction amounting to the crime, and are not inferred from the character and tendencies of the accused.”

…

50   But I can see no possible rational or reasonable explanation at all for the tender of virtually the whole of the appellant’s criminal record. Proof that the appellant had no record of violence against women did not require the other details of what his record contained …

…

53   In my opinion, there was no rational or reasonable explanation for the whole course of conduct by counsel for the appellant in eliciting the appellant’s criminal record in the way he did, and that conduct necessarily caused the trial to be unfair.”

48. A miscarriage of justice was, accordingly, established.

49. In Alkhair v R [2016] NSWCCA 4; (2016) 255 A Crim R 419 Macfarlan JA reviewed the decisions in cases in which incompetence of counsel had been raised as a ground of appeal. From that review, he drew four principles:

“31   I draw from these authorities the following principles relevant to the present case:

(1)   To the extent possible, an appellate court should determine an appeal involving complaints about a trial counsel’s conduct of a case by examining the record of the trial to determine from the objective circumstances whether the accused has had a fair trial.

(2)   Ordinarily, an affirmative answer to this question is required where the impugned conduct is capable of being rationally explained as a step taken, or not taken, in the interests of the accused. This is so even if the accused alleges on appeal that he or she did not authorise the conduct because the nature of the adversarial system means that the client is bound by the manner in which the trial is conducted on his or her behalf.

(3)   Only in exceptional circumstances will an appellate court find it necessary to resort to subjective evidence concerning the appellant’s legal representatives’ reasoning at trial or to evidence as to communications between the appellant and those representatives.

(4)   The ultimate question for an appellate court is whether the appellant has established that what occurred at the trial gave rise to a miscarriage of justice in the sense that the appellant lost a chance of acquittal that was fairly open.”

50. What indisputably underlies all these decisions is that the determinative factor is that a miscarriage of justice be demonstrated.

Application of the principles in the present case

51. As indicated above, reliance is placed on three separate features of the trial: failure to apply for separate trials of the two categories of offences; failure to object to certain questions asked of a Crown witness or alternatively, to seek discharge of the jury or specific directions as to the use to be made of the evidence; and asking a question premised upon, and eliciting, the fact that the applicant had been in custody. It is necessary to deal with each in turn.

(i) joint trial

52. Section 29 of the Criminal Procedure Act 1986 (NSW) relevantly provides:

“(1)   A court may hear and determine together proceedings related to 2 or more offences alleged to have been committed by the same accused person in any of the following circumstances:

(a)   the accused person and the prosecutor consent,

(b)   the offences arise out of the same set of circumstances,

(c)   the offences form or are part of a series of offences of the same or a similar character.”

53. For the purposes of the appeal, the Crown relied on affidavit evidence of the applicant’s legal representatives at trial. Defence counsel deposed that the legal representatives had advised the applicant that an application for separate trials of the two groups of offences ought to be made, but that the applicant was strongly resistant to that course and wished all matters to be finalised without delay. That evidence was not disputed. However, it was argued that the legal representatives were not bound, with respect to the conduct of the trial, by the instructions of the applicant, but were both entitled and obliged to make independent decisions with respect to such matters. That counsel had a wide independent discretion in the conduct of the trial is established by the authorities referred to above. Whether that discretion extended to applying, contrary to firm and clear instructions by the applicant, for separate trials is another question.

54. It is plain, from the undisputed affidavit evidence of trial counsel, that the applicant consented to the joint trial of the offences and that s 29(1)(a) is satisfied. Nevertheless, on appeal, counsel submitted that the failure of counsel to seek an order for separate trials constituted incompetence such as to have caused a miscarriage of justice. Reliance was placed on the judgment of Brennan J (as he then was) in Sutton v The Queen (1984) 152 CLR 528; [1984] HCA 5.

55. Mr Sutton was charged in South Australia with the rape or attempted rape of three different victims. An application for separate trials was refused on the basis that the evidence in support of the charges in respect of each victim was admissible in the trial of the charges in respect of each other victim, on the then applicable principles relating to what was known as “similar fact” evidence, stated in Perry v The Queen (1982) 150 CLR 580; [1982] HCA 75.

56. The relevant procedural legislation (s 278 of the Criminal Law Consolidation Act 1935 (SA)) provided for joint trials of multiple charges if the charges were “founded on the same facts, or form or a part of a series of offences of the same or a similar character”. Sub-section (2) reserved to the court the power to direct separate trials if of the opinion that the person accused may be prejudiced or embarrassed in his defence by reason being charged with more than one offence in the same information, or that, for any other reason, it was desirable to direct separate trials.

57. In the course of considering that appeal, Brennan J made some general observations concerning joint trials. Since these were heavily relied upon on behalf of the applicant, I set them out in full:

“When two or more counts constituting a series of offences of a similar character are joined in the same information, a real risk of prejudice to an accused person may arise from the adverse effect which evidence of his implication in one of the offences charged in the indictment is likely to have upon the jury’s mind in deciding whether he is guilty of another of those offences. Where that evidence is not admissible towards proof of his guilt of the other offence, some step must be taken to protect the accused person against the risk of impermissible prejudice. Sometimes a direction to the jury is sufficient to guard against such a risk; sometimes it is not. Where a direction to the jury is not sufficient to guard against such a risk, an application for separate trials should generally be granted. There may be an exceptional case where countervailing factors appear but I do not presently foresee them. As Lord Cross of Chelsea observed in Director of Public Prosecutions v. Boardman [[1975] AC 421 at p 459] so long as the general rule excluding similar fact evidence is maintained ‘the courts ought to strive to give effect to it loyally and not, while paying lip service to it, in effect let in the inadmissible evidence by trying all the charges together’. It would be misleading for a judge to require some further ‘special feature of the case’ – the criterion adopted by Lord Pearson in Ludlow v. Metropolitan Police Commissioner [[1971] AC 29 at p 41] – before giving a direction for separate trials. The purpose of provisions such as s. 278 is to avoid the technicalities and rigid rules of criminal pleading and procedure, but not to impair the administration of criminal justice. Irvine C.J. pointed out in R. v. Brent [[1919] VLR 46 at pp 52-53] with respect to the corresponding Victorian provision, that it did not ‘intend to introduce any fundamental alteration in the general rule that the tribunal to determine the guilt or innocence of a person charged should not be affected by the evidence given in relation to another charge – certainly not the evidence given by another person in relation to another charge’. The price of dispensing with the technicalities and rigid rules of criminal pleading and procedure is the imposition upon the trial judge of the onerous function of directing the course of proceedings to ensure that justice is properly administered. To that end he is given a discretion to order separate trials. Where the evidence admissible on one count is not admissible on another, and in consequence there is a real risk of impermissible prejudice to the accused, the sound exercise of the discretion generally (if not universally) requires a direction for separate trials (cf. per Lord Hailsham of St. Marylebone in Boardman [at p 447]; Novac [(1976) 65 Cr App R 107 at p 111].

Usually, there is no risk of impermissible prejudice arising from the conduct of a single trial upon an indictment containing more than one count where the evidence relating to the accused’s implication in an offence charged in one count is admissible in proof of his guilt of the offence or offences charged in the other count or counts. The admissibility of the evidence relating to one count upon a trial for another count is thus a question of importance affecting both the exercise of the discretion under s. 278(2) and, in the event of a trial on multiple counts, on the direction given to the jury relating to the way in which they may use the evidence tendered in proof of each count at the trial.” (pp 541-543)

58. Here, there is no reason to suppose that, had separate trials been held, evidence in relation to the weapons charges would have been admissible in proof of Counts 1-3, or vice versa. I would therefore accept that there was at least a reasonable prospect that, had an application for separate trials been made, it would have met with success.

59. I would also accept that the applicant suffered, or potentially suffered, some prejudice as a result of the charges being tried jointly. If the jury were in any doubt about the applicant’s guilt on the first group of charges, it may be inferred that they would, at the least, draw comfort from the evidence on the prohibited weapons charges. And if they were in doubt about the applicant’s possession of the weapons, it may be inferred that they would have drawn comfort from the evidence of his dealings with Mr Konchady.

60. I accept, of course, as explicitly stated by Gleeson CJ in Birks and by McHugh J in TKWJ, that counsel’s discretion as to the conduct of a trial is broad. Whether, in this case, counsel would have been within his rights to override the applicant’s plainly expressed wish for a joint trial could be a difficult question, but is not presently to the point. In my opinion counsel, having given appropriate advice, was entitled to act on those plainly expressed wishes to proceed with a joint trial. It is not for the applicant now to complain that counsel did not override his firm instructions. Counsel was entitled to respect the autonomy of the applicant in decision making, providing that he had received appropriate advice.

61. I do not, therefore, consider that for counsel to proceed with the trial as he did was indicative of incompetence. The applicant having not only consented, but urged, that all charges proceed in a joint trial, it cannot then be said that a miscarriage of justice occurred.

(ii) the evidence concerning the use of the explosive devices

62. I have set out above (at [15]) the evidence in chief led from Ms Bain on this topic. Counsel did, unsuccessfully, object to the first question, citing its vagueness as the reason. The objection was overruled. He did not further object to the subsequent questions.

63. The complaint now made is that, having failed in his initial objection, he ought to have sought a discharge of the jury or, as a last resort, ought to have sought specific directions in relation to the use that could be made of it.

64. In my opinion, the questions were objectionable, and the ruling was wrong. The objection that appears in the transcript was to the “vagueness” of the evidence, but counsel was cut off before he could complete what he was saying. The issue in relation to Counts 4-7 was the applicant’s possession of the items. His purpose in possessing the items (if possession were proved) was not relevant to the charge. Far less was Ms Bain’s purpose in possessing, or being party to the possession, of the items. The answers given by Ms Bain, indicating a preparedness, if not an intention, to use the weapons in criminal activity, were no doubt damaging. There was, however, no ground of appeal that asserted the wrongful admission of evidence, or the wrongful rejection of counsel’s objection.

65. Counsel had taken objection which failed. There would have been no point in seeking discharge of the jury on the basis of the evidence given; such an application would certainly have met with the same result as the objection.

66. On behalf of the Crown it was submitted that there was “clearly a rational explanation available for” the failure of counsel to object further than he did. The “rational explanation” proposed appears to be (as was conceded by counsel for the applicant) that the evidence was relevant to establish the applicant’s possession of the devices.

67. I do not accept that. I do not accept that evidence of Ms Bain’s speculation about the proposed use of the devices went any way to establish possession by the applicant.

68. A more substantial point made on behalf of the Crown, and one which also answers the third proposition in the written submissions (asserted failure to seek specific directions) is to be found in the directions actually given.

69. In the course of the summing up the trial judge referred to the evidence of Ms Bain, and also evidence given by Ms Robson (who had accompanied the applicant to Mr Konchady’s home). Of those two witnesses his Honour said:

“Both of them spoke of having difficulties as a result of drugs as I recall at the material times. You might recall that I adjourned the Court in response to Robson’s outburst in the course of the questioning offered by the Crown.

Their evidence might be unreliable and there is therefore a need for you to exercise caution when you decide whether to accept it and the weight you should give it. I need to explain to you why it is that the evidence might be unreliable.

The first reason is that evidence of this kind is easily invented and there is not really much that the accused in his position can do beyond simply denying the events alleged of him in those parts of the evidence.

It is also possible that one or both of them has made up these versions in the hope of getting some benefit, perhaps including favourable treatment within the prison environment from which they both came or some favourable decision concerning their release. There is no evidence of any of that but they are matters that you should bring to bear because it might have been something in the back of their minds.

People, such as these witnesses, are also affected by the standards and culture of another level of society where respect for the law and telling the truth might not be as valuable to them in the same way as it would be to other members of our community.

It is also apparent that they are both in custody, as I have said, and you might regard them as people who are less likely to be truthful than a person who has not been put into such circumstances.

For those reasons, their evidence may be unreliable and there is, therefore, a need for you to exercise caution when you decide whether you accept that evidence. If you do decide to accept it, you should be similarly cautious in deciding how much significance or value you think it has.

…

The Crown has made it clear that their evidence is of limited value in the Crown case and has identified the use which the Crown would make of it. The Crown does not suggest that they are witnesses of truth generally. Indeed, you would consider the responses to the Crown and consider the responses they gave to cross examination when assessing the extent to which you might find them to be witnesses of truth and accuracy.”

His Honour repeated that the evidence might be unreliable, and that the jury should exercise caution before accepting it and attributing to it significance.

70. The reference to the Crown position was drawn from the final address of the Crown prosecutor who explicitly described both Ms Bain and Ms Robson as unreliable witnesses. She reminded the jury of Ms Bain’s evidence of drug use.

71. Although, in my opinion, that the evidence was allowed to be given was unfortunate, I do not think that it could, in the circumstances, have resulted in a miscarriage of justice.

(iii) cross-examination of Ms Bain

72. The final instance of alleged incompetence lay in the cross-examination of Ms Bain in which counsel specifically disclosed that the applicant had been “in custody”. It is impossible to attribute any rational forensic purpose to that question, and counsel acknowledged, in his affidavit, that the subject of Ms Bain’s defalcations could have been introduced without reference to the applicant’s incarceration.

73. In my opinion that question displayed a level of ineptitude that cannot be explained by any rational decision making. I am unable, however, to take the further step and conclude that the ineptitude resulted in a miscarriage of justice. To reach that conclusion it would be necessary further to conclude that the applicant was deprived of a chance of acquittal that was fairly open to him: Mraz v The Queen (1955) 93 CLR 493 at 514; [1955] HCA 59. In TKWJ (at [26]) Gaudron J emphasised the word “fairly”.

74. That calls for examination of the whole of the evidence in the trial.

75. The applicant’s participation in obtaining money from Mr Konchady was beyond doubt. He gave his name and bank account details to Mr Konchady. It was never suggested that he had not obtained money from Mr Konchady. His response to the Crown case appears to have been that Mr Konchady provided him with the money willingly and without demur. As counsel indicated in the opening of his final address, the issue was whether the applicant had obtained the money by “menaces” or by threat. In cross-examination it was more than once put to Mr Konchady that the applicant had at no time threatened him, a suggestion that Mr Konchady repeatedly and firmly rejected. He said:

“He was fierce with this force.”

76. At no time was any reason that Mr Konchady might voluntarily have handed to the applicant the sums of money that he did postulated. It was merely put that, without any threat or menace, Mr Konchady agreed to go with the applicant and Ms Robson to the ATM to withdraw money. The prospect of the jury accepting that, even as a reasonable possibility, is so remote as to be fanciful. That would have been the position whether or not counsel had disclosed that the applicant had a custodial history.

77. Similarly, the count of attempted theft of the motor vehicle was virtually unanswerable. Police arrived as the applicant and the tow truck driver were attempting to load the vehicle onto the tow truck. The applicant attempted to flee.

78. The same must be said of the four counts of possession of prohibited weapons. Those weapons were located in the execution of a search warrant on the applicant’s home. There was no evidence that any other person occupied the home.

79. In these circumstances, following the approach of the High Court in Nudd, I am satisfied that no miscarriage of justice has been identified. I would therefore dismiss the appeal against conviction.

The application for leave to appeal against sentence

80. As indicated above, the sentencing judge imposed an aggregate sentence of imprisonment for 10 years with a non-parole period of 6 years. In doing so, in accordance with s 53A of the Sentencing Procedure Act, he specified the sentences he would have imposed in relation to each individual offence were he to sentence separately. Only one ground of appeal against sentence is proposed – that the sentence is manifestly excessive.

81. His Honour set out, in some detail, the facts he found based on the evidence in the trial. No complaint is made about the manner in which he did that.

82. His Honour also recounted, again in some detail, the evidence of the applicant’s personal circumstances. No issue is taken with the manner in which he dealt with those circumstances. The relevant facts can therefore be outlined briefly.

Personal circumstances

83. The applicant did not give evidence on sentence. He relied on three reports of a psychiatrist, Dr Allnutt. Dr Allnutt painted a powerful picture of a dysfunctional childhood and adolescence. The applicant was born in Iraq in 1984, of Kurdish ethnicity. Kurds were persecuted in Iraq. By the age of four the applicant was living in Iran. At that age, he witnessed his father kill his mother by stabbing her and slitting her throat. His father subsequently remarried. In 1994, when the applicant was 10, the family came to Australia as refugees. His father was abusive and controlling. From the age of 13 the applicant suffered from anxiety. He eventually turned to drugs. He used methamphetamine. Indisputably, the applicant’s personal history has influenced, adversely, his adaptation to life in Australia.

84. He was 29 years of age at the time of this offending. By then, he had a significant criminal record to which the sentencing judge referred in detail.

85. In assessing the objective seriousness of Counts 1-2, the sentencing judge took into account that the offences were committed in the victim’s home, for financial gain, and were planned and organised. He declined to take into account as an aggravating factor that the offences were accompanied by threats of violence, holding that that was “part of the overall factual matrix”. He concluded that the offences were in the middle of the range of objective seriousness.

86. The argument presented in support of the appeal was that, in arriving at the indicative sentences the sentencing judge overstated the objective seriousness of the offences. It was submitted that the offences the subject of Counts 1-2, carrying a maximum penalty of imprisonment for 10 years, should be seen in the light of offences of armed robbery, which, by s 97 of the Crimes Act carry a maximum penalty of imprisonment for 20 years. Reliance was placed on the decision of this Court in R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111, in which this Court promulgated, as a guideline, that sentences for offences against s 97 should normally fall into the range of 4 to 5 years fulltime (at [165]).

87. On behalf of the applicant it was therefore argued that an indicative sentence of 6 years for Counts 1-2, was manifestly excessive, and that this infected the aggregate sentence imposed.

88. One difficulty with the proposition is that it overlooks the circumstances to which the Henry guideline was directed. Spigelman CJ set out seven features of the category of case to which the guideline of 4 to 5 years was intended to apply. The features are:

“(i)   Young offender with no or little criminal history;

(ii)   Weapon like a knife, capable of killing or inflicting serious injury;

(iii)   Limited degree of planning;

(iv)   Limited, if any, actual violence but a real threat thereof;

(v)   Victim in a vulnerable position such as a shopkeeper or taxi driver;

(vi)   Small amount taken;

(vii)   Plea of guilty, the significance of which is limited by a strong Crown case.”

89. As can be seen, the applicant does not readily fit that profile. He could not be called a “young offender”, and certainly he could not be said to have had little or no criminal history. There was more than a limited degree of planning involved in the offences constituting Counts 1-3. The amount taken, particularly in relation to the first offence, and that sought to be taken in relation to the second, could not be said, in the circumstances, to be “small”. He did not plead guilty.

90. I do not accept that the sentences indicated in relation to Counts 1-2 were manifestly excessive.

91. It was then argued that the offence constituting Count 3 (attempting to steal the motor vehicle) was “persistent but not sophisticated” and was “unremarkable” and that a sentence of 5 years would be outside the legitimate range available (the maximum being 10 years). Again, I cannot agree. The applicant made significant preparations for the theft of the vehicle, over a number of days, attempting to take registration papers and returning to the premises, first with a mechanic, and then with a tow truck, in order to take the vehicle away. It was a serious offence of its kind.

92. The sentencing judge found that the weapons offences were within the middle of the range of objective seriousness; it was submitted that “the appropriate finding” was that they were at the lower end of that range, and that a sentence of 5 years would be outside a legitimate range.

93. Once again, I do not agree. In this case the sentencing judge was required to have regard, not only to the maximum prescribed sentence, but also to the standard non-parole period of 3 years.

94. Of course, the sentence in question is the aggregate sentence imposed. Reference was made to the indicating sentences in an effort to isolate some error of discretion. No such error has been established. Moreover, the aggregate sentence has to be seen in the light of the whole of the criminal conduct of the applicant. By reason of his lengthy criminal history he was not entitled to any leniency.

95. It is true that the applicant made out a significant case on his personal circumstances. However, it was not suggested that inadequate attention was paid to those circumstances.

96. I would grant leave to appeal against sentence but dismiss the appeal.

97. The orders I propose are:

1. Appeal against conviction dismissed;

2. Leave granted to appeal against sentence;

3. Appeal against sentence dismissed.

98. BELLEW J: I have had the advantage of reading in draft the judgment of Simpson AJA. I agree with her Honour’s conclusions, and the orders she proposes.

99. CAMPBELL J: I have had the considerable advantage of reading the judgment of Simpson AJA in draft, with which I agree. Having reviewed the authorities to which her Honour refers and reviewed the matter in the light of them I too am of the view that no miscarriage of justice occurred notwithstanding the irregularities her Honour identifies in relation to grounds 3 and 4 of the amended grounds of appeal. I agree with her Honour for the reasons she gives that the exercise of the sentencing discretion by the learned primary judge did not miscarry. I agree with the orders proposed by Simpson AJA.

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Decision last updated: 09 August 2019