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Moustafa v R

Moustafa v R

Case [2019] NSWCCA 89 3 May 2019

Criminal Liability

Appeal

Incompetence of Counsel

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Moustafa v R [2019] NSWCCA 89
Hearing dates: 10 April 2019
Date of orders: 03 May 2019
Decision date: 03 May 2019
Before: Payne JA at [1]; Wilson J at [65]; Ierace J at [66]
Decision:
(1) Appeal dismissed on ground 1;
(2) Leave to appeal under Rule 4 of the Criminal Appeal Rules (NSW) refused on ground 2.

Catchwords: CRIME – conviction appeal – incompetence of counsel – alleged failure of counsel to recall the complainant – alleged failure of counsel to seek a direction from the trial judge about recent invention – alleged failure of counsel to seek a discharge of the jury – whether the forensic judgment of counsel was objectively rational – whether the appellant lost a chance of acquittal that was fairly open – where the appellant changed his instructions to counsel after the close of the Crown case
Legislation Cited: Crimes Act 1900 (NSW), s 97
Criminal Appeal Rules (NSW), r 4
Evidence Act 1995 (NSW), ss 46, 65, 192
Cases Cited: Ahmu v R [2014] NSWCCA 312
Alkhair v R [2016] NSWCCA 4
Ali v R [2005] HCA 8; 79 ALJR 662
Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22
Matthews v R [2013] NSWCCA 187
Nudd v The Queen [2006] HCA 9; 80 ALJR 614
Qing An v R [2007] NSWCCA 53
TKWJ v R (2002) 212 CLR 124; [2002] HCA 46
Category: Principal judgment
Parties: Ali Moustafa (Appellant)
Regina (Respondent)
Representation:
Counsel:
G D Wendler (Appellant)
H Roberts (Respondent)
Solicitors:
Alexanders Lawyers (Appellant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2015/00300859
Publication restriction: None
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Before:

Traill DCJ

File Number(s):

2015/00300859

HEADNOTE

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

The appellant was convicted of robbery armed with an offensive weapon. During the course of his trial, the appellant gave different versions of his instructions at different times to his lawyers. At trial, the appellant gave evidence that he was attacked by the complainant with a knife. This evidence was the subject of instructions given to his lawyers, for the first time, after the complainant had given evidence and the Crown had closed its case. During cross-examination, counsel for the Crown put to the appellant that he had invented this version of events.

The issues on appeal were:

(i) whether a miscarriage of justice was occasioned by the failure of trial counsel for the appellant to deal with an issue of recent invention; and

(ii) whether a miscarriage of justice was occasioned by the failure of trial counsel for the appellant to seek a direction from the trial judge in the summing up concerning the Crown’s allegation of recent invention evidence.

In relation to issue (i), the Court, dismissing the appeal, held at [40]-[59]:

The objective circumstances, based on an examination of the…

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 Moustafa v R

Details

AGLC: Moustafa v R [2019] NSWCCA 89
Case: [2019] NSWCCA 89
Decision Date: 03 May 2019

CaseChat Overview and Summary

The appeal before the High Court of Australia was brought by the appellant, Moustafa, against the respondent, the Crown. The central issue was the competency of the appellant's legal representation during his trial for sexual assault. The appellant argued that his counsel's performance was deficient, claiming that counsel failed to call the complainant to testify, did not seek a direction from the trial judge regarding the recent invention of the complainant's evidence, and did not request a discharge of the jury. The appellant contended that these failures resulted in a substantial miscarriage of justice and sought to overturn his conviction on these grounds.

The legal issues before the court were whether the appellant's counsel was incompetent and, if so, whether this incompetence deprived the appellant of a fair trial and a chance of acquittal that was fairly open. The court was required to determine whether the counsel's decisions were objectively rational and aligned with the appellant's instructions at the time. The appellant's argument centred on the assertion that his counsel's performance fell below an objective standard of competence and that the failures in counsel's conduct were not merely errors of judgment but rather represented a fundamental breach of the duty of care owed by legal representatives.

The court considered the appellant's arguments and examined the record of the trial to assess the competency of the counsel's performance. It was noted that the appellant had changed his instructions to counsel after the close of the Crown case, which complicated the assessment of the counsel's actions. The court found that while counsel's decisions might have been questionable, they were not so deficient as to amount to incompetence. The court held that the counsel's forensic judgments, despite being debatable, were within the range of reasonable professional assistance and did not fall below an objective standard of competence. Consequently, the court concluded that the appellant's conviction should stand as the counsel's performance did not deprive him of a fair trial or a chance of acquittal that was fairly open.

Orders