Nader v R - [2018] NSWCCA 256

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Nader v R [2018] NSWCCA 256
Hearing dates: 24 October 2018
Date of orders: 14 November 2018
Decision date: 14 November 2018
Before: Hoeben CJ at CL at [1]
Davies J at [2]
Button J at [80]
Decision:
(1) Leave to appeal against conviction allowed.
(2) Dismiss the conviction appeal.
(3) Leave to appeal against sentence allowed.
(4) Allow the appeal against sentence.
(5) Quash the sentence imposed by Judge Craigie SC in the District Court on 24 November 2017.
(6) In lieu, sentence the appellant to a term of imprisonment of nine years and six months commencing 8 May 2017 and expiring 7 November 2026 with a non-parole period of five years and nine months expiring 7 February 2023.

Catchwords: CRIME – appeal against conviction – offence of attempting to possess a commercial quantity of an unlawfully imported border-controlled drug – whether conduct of defence of co-accused caused unfairness to applicant – where co-accused pleaded guilty to another offence to engender reasonable doubt that he had the requisite mental state – where applicant did not apply for a separate trial – purported miscarriage of justice resulting from course deliberately chosen on the basis that it could result in a forensic advantage – where no ground of appeal alleging incompetency of counsel - appeal against sentence – commencement of sentence – pre-sentence custody period not taken into account – sentence backdated
Legislation Cited: Crimes Act 1914 (Cth) s 16E
Crimes (Sentencing Procedure) Act 1999 (NSW) s 24
Cases Cited: De Jesus v The Queen (1986) 22 A Crim R 375
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Madubuko, Henry Ugo v R [2011] NSWCCA 135
Phillips v R [2016] NSWCCA 159
R v Guldur (1986) 8 NSWLR 12
R v Middis & Ors (27 March 1991, NSW Supreme Court, Hunt J – Unrep)
R v Pham [2004] NSWCCA 190
Refaieh v R [2018] NSWCCA 72
TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
Webb v R (1994) 181 CLR 41
Texts Cited: Nil
Category: Principal judgment
Parties: Moses Nader (Applicant)
Crown (Respondent)
Representation:
Counsel:
F Coyne & W Tuckey (Applicant)
J Single & M Kalyk (Respondent)
Solicitors:
John R De Mattia & Co (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2015/362467
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

Nil

Date of Decision:

24 November 2017

Before:

Craigie DCJ

File Number(s):

2015/362467

Judgment

HOEBEN CJ AT CL: I agree with Davies J and the orders which he proposes.
DAVIES J: The applicant was found guilty after a trial before Judge Craigie SC and a jury of attempting to possess a commercial quantity of an unlawfully imported border-controlled drug, being 14.371 kilograms of MDMA. A co-offender, George Abouhaidar, was also found guilty of that offence. The co-offender had also pleaded guilty at the commencement 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 Nader v R

Details

AGLC: Nader v The Queen [2018] NSWCCA 256
Case: [2018] NSWCCA 256
Decision Date: 14 November 2018

CaseChat Overview and Summary

Nader was charged with attempting to possess a commercial quantity of a border-controlled drug, namely cocaine, unlawfully imported into Australia. He was tried in the Supreme Court of Victoria. The accused appealed against his conviction and sentence. The appeal against conviction hinged on whether Nader's trial was rendered unfair by the conduct of his co-accused, who pleaded guilty to a related offence to create reasonable doubt about his own criminal intent. Nader had not sought a separate trial, and the court had to consider whether the strategic decision by his co-accused to plead guilty could be seen as a deliberate course of action that led to a perceived miscarriage of justice for Nader.

The court examined whether the co-accused's actions constituted a fundamental unfairness in the trial process. It held that the defence strategy adopted by the co-accused, although unconventional, did not in itself render the trial unfair. The court noted that Nader did not apply for a separate trial, and the decision to proceed with the joint trial was deliberate and potentially advantageous to Nader. The court further found that the appeal did not establish any incompetency on the part of Nader's counsel. The appeal against conviction was dismissed as the court did not find any legal error that would warrant a reversal of the conviction.

The appeal also contested the sentence imposed, specifically the issue of backdating the sentence to include the period of pre-sentence custody. The court found that the sentencing judge had erred in not taking the pre-sentence custody period into account when calculating the sentence. As a result, the court ordered that the sentence be backdated to include the period of pre-sentence custody. This decision ensured that Nader's sentence was accurately reflective of the total time he had already served awaiting the outcome of his trial and sentence.

Orders