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Karam v The King

Karam v The King

Case [2023] VSCA 318 14 December 2023

Appeal

Substantial Miscarriage of Justice

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0142
S EAPCR 2020 0211
S EAPCR 2023 0085

ROB KARAM	Applicant
v
THE KING	Respondent

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JUDGES:	BEACH, McLEISH and KENNEDY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	1–2 November 2023
DATE OF JUDGMENT:	14 December 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 318	(First Revision 18 December 2023: [221])
JUDGMENT APPEALED FROM:	DPP (Cth) v Karam [2015] VCC 855 (Judge Montgomery); DPP (Cth) v Karam [2013] VSC 133 (King J); Karam v The King [2022] VSC 808 (Osborn JA)

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CRIMINAL LAW – Appeal – Conviction – Four charges relating to trafficking and conspiracies to import and possess commercial quantities of border-controlled drugs and/or precursors – Reference determination and two separate trials, one previously appealed without success – Former lawyer acted as police informer in respect of applicant – Lawyer at times provided advice without practising certificate – Whether informing resulted in substantial miscarriage of justice – Leave to appeal granted – Appeal dismissed.

CRIMINAL LAW – Appeal – Second or subsequent appeal – Principles governing leave to commence second or subsequent appeal – Criminal Procedure Act 2009 (‘CPA’), ss 326A, 326C(3)(b)(iii)(A), 326D – Whether evidence compelling by virtue of being highly probative in context of issues in dispute – Roberts v The Queen (2020) 60 VR 431, applied – ‘Issues in dispute’ extends to whether applicant received fair trial according to law – Consideration of fresh evidence in interests of justice – Leave to appeal granted – Appeal dismissed.

CRIMINAL LAW – Appeal – Reference determination – Leave to appeal reference determination – CPA, ss 319A(5), 319A(6) – Nature of appeal – Challenge to judge’s conclusion that no material effect of lawyer’s advice on trials had been shown – Applicant did not seek alternative positive finding that lawyer’s conduct had material effect on course of trials or deprived applicant of independent legal counsel – Appeal against reference determination would not assist applicant in substantive appeal grounds – Leave to appeal refused.

CRIMINAL LAW – Principles governing appeal against conviction – CPA, ss 274, 276(1)(b), 276(1)(c) – Baini v The Queen (2012) 246 CLR 469, applied – Awad v The Queen (2022) 275 CLR 421, discussed – No single test for substantial miscarriage of justice – Correct approach whether appellant establishes error may have affected result of trial and if so, whether respondent establishes conviction was inevitable.

CRIMINAL LAW – Appeal – Conviction – Whether substantial miscarriage of justice arising from abuse of process – 23 irregularities identified involving lawyer’s breaches of duties of loyalty and confidentiality – Informing prior to offending too remote in time and subject matter to be connected to trials – Acting for applicant in previous trial resulting in acquittal had no bearing on trials subject of appeal – Representing applicant with respect to bail and custodial matters confined in subject matter and remote from trials – Applicant had independent counsel in both trials – Lawyer’s provision of collateral legal advice and…

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.

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Details

AGLC: Karam v The King [2023] VSCA 318
Case: [2023] VSCA 318
Decision Date: 14 December 2023

CaseChat Overview and Summary

The case of Karam v The King involves an appeal against the conviction and sentence of the applicant, Karam, on four charges related to trafficking and conspiracies to import and possess commercial quantities of border-controlled drugs and/or precursors. The case was heard in the Court of Appeal, Supreme Court of Victoria, following two separate trials and a reference determination. The applicant's former lawyer had acted as a police informer, providing advice without a practising certificate, raising issues of potential misconduct and its impact on the fairness of the trials.

The legal issues before the court were whether the informer's conduct constituted a substantial miscarriage of justice, whether the applicant was deprived of a fair trial, and whether the failure to disclose the lawyer's status as an informer amounted to a substantial miscarriage of justice. The court also considered the principles governing leave to appeal a conviction and the criteria for granting leave to appeal against a reference determination.

The court found that while the lawyer's conduct was irregular and breached duties of loyalty and confidentiality, it did not result in a substantial miscarriage of justice. The court held that the irregularities were not fundamental or serious departures from trial processes and did not affect the result of either trial. The court also found that the breaches did not amount to a substantial miscarriage of justice as the applicant was not deprived of the right to independent legal counsel. The court dismissed the appeals against conviction and sentence.

The court granted leave to appeal the reference determination but ultimately dismissed the appeal, finding that the applicant did not seek an alternative positive finding that the lawyer's conduct had a material effect on the course of the trials or deprived the applicant of independent legal counsel. The appeal against the reference determination would not assist the applicant in the substantive appeal grounds. The court concluded that the applicant had not established that the irregularities may have affected the result of either trial, and the conviction was inevitable.

Orders