R v Shabanzadeh

Case [2025] QCA 92

SUPREME COURT OF QUEENSLAND

CITATION:

R v Shabanzadeh [2025] QCA 92

PARTIES:

R
v
SHABANZADEH, Arian
(applicant)

FILE NO/S:

CA No 170 of 2024
SC No 1310 of 2023

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 12 July 2024 (Hindman J)

DELIVERED ON:

3 June 2025

DELIVERED AT:

Brisbane

HEARING DATE:

15 April 2025; 26 May 2025

JUDGES:

Bond, Flanagan and Bradley JJA

ORDERS:

1.   The application for leave to adduce further evidence is refused.

2.   The application for leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – FRESH EVIDENCE AND EVENTS OCCURRING AFTER SENTENCE – where the applicant pleaded guilty and was sentenced for serious drug offences – where the sentencing judge took into account expert opinion evidence as to the fragile state of the applicant’s mental health which showed that time in custody would be more difficult for the applicant than others –  where on an application for leave to appeal against sentence the applicant applied for leave to adduce evidence he had been seriously assaulted in prison after sentencing and of the consequences which that had for his mental health and also expert opinion evidence as to his mental health – whether there would be a miscarriage of justice if the proposed evidence was not received

EVIDENCE – ADMISSIBILITY – OPINION EVIDENCE – EXPERT OPINION – OTHER MATTERS – where the applicant for leave to appeal against sentence sought to rely on expert opinion evidence as to the state of his mental health –  where the applicant’s solicitor had asked the expert to include particular phrases into his reported conclusions and the expert had done so – whether the court could have confidence that the reported conclusions represented independent expert opinion evidence rather than the evidence of someone who (whether consciously or not) was prepared to be used as a proxy advocate

Corrective Services Act2006 (Qld), s 209
Criminal Code (Qld), s 668D(1)(c), s 668E(3), s 671B

Alessawi v R [2025] VSCA 23, considered
R v Hughes [2004] 1 Qd R 541; [2003] QCA 460, followed
R v Maniadis [1997] 1 Qd R 593; [1996] QCA 242, followed
New Aim Pty Ltd v Leung (2023) 410 ALR 190; [2023] FCAFC 67, applied
Yelland Security Pty Ltd v Plus Architecture International Pty Ltd [2021] VSC 416, applied

COUNSEL:

S C Holt KC, with L M Dawson, for the applicant
S L Dennis for the respondent

SOLICITORS:

Owens and Associates for the applicant
Director of Public Prosecutions (Queensland) for the respondent

  1. THE COURT:  On 11 April 2024 the applicant was convicted on his own pleas of guilty to 9 counts of supplying dangerous drugs; 6 counts of possession of dangerous drugs and one count of contravention of an order and on 12 July 2024 was convicted on his own pleas of guilty to 5 summary charges.  His…

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Details
AGLC
R v Shabanzadeh [2025] QCA 92
Case
[2025] QCA 92
Decision Date

CaseChat Overview and Summary

In the matter of R v Shabanzadeh, the applicant appealed against his sentence for serious drug offences. The primary issue before the court was whether the applicant could introduce new evidence of his mental health deterioration following a prison assault and whether this evidence would result in a miscarriage of justice if not considered. Additionally, the court examined whether expert opinion evidence on the applicant's mental health, which appeared influenced by his solicitor, could be deemed independent and reliable.

The court examined the admissibility of the new evidence, highlighting the importance of expert opinions being an independent assessment rather than a proxy advocacy. It was noted that the solicitor's email to the expert, requesting specific phrases to be included, undermined the independence of the expert's report. The court found that such interference could render the expert opinion untrustworthy and not reflective of an unbiased professional judgment. Consequently, the court held that the new evidence could not be admitted as it did not meet the criteria for independent expert opinion.

The court's reasoning was grounded in the necessity to preserve the integrity of expert evidence in legal proceedings. By refusing the application to adduce further evidence and the subsequent appeal against sentence, the court ensured that the sentencing process remained fair and that the expert's role as an impartial assessor was upheld. The final orders of the court were to refuse both the application for leave to adduce further evidence and the application for leave to appeal against sentence.

Orders

Orders of the court

1. The application for leave to adduce further evidence is refused.

2. The application for leave to appeal against sentence is refused.

Background

Background to the litigation

For reasons which follow, the application to adduce further evidence should be refused. Accordingly, the application for leave to appeal against sentence should also be refused.Relevant background to the applications The applicant had a relevant criminal history comprising two previous periods of imprisonment for trafficking in dangerous drugs. In particular, on 31 October 2007 he was convicted for trafficking in dangerous drugs between 15 November 2003 and 24 September 2004 and sentenced to seven years’ imprisonment with a parole eligibility date of 30 April 2010. On 22 September 2015 he was convicted of trafficking in dangerous drugs between 25 May 2012 and 15 October 2012 and sentenced to 11 years’ imprisonment. The offending the subject of the second conviction occurred whilst the applicant was being supervised on parole in respect of the first conviction. The index offending was discovered consequent upon the execution by police of a search warrant at the applicant’s residence in Brisbane on 16 March 2023. The supply counts were identified consequent upon police downloading information from the applicant’s mobile phone as part of their investigation. Review of the information downloaded revealed that the offending took place between October 2021 and March 2023, again whilst the applicant was being supervised on parole in respect of his previous convictions. The history just recited meant that s 209 of the Corrective Services Act2006 (Qld) operated so that, having committed offences during the period of parole orders, the applicant’s parole orders would be taken to have been automatically cancelled on the dates on which the offending occurred. The sentencing judge found that the effective 18 years of imprisonment imposed in respect of the two trafficking offences had not yet been completely served and would not be completely served for about a further 15 months. The sentencing judge accepted the common ground submission that the sentence she imposed should run concurrently with the remainder of the existing term. The applicant was sentenced on the basis that –(a)the index offending was commercially motivated and he had an intention to engage in future drug transactions;(b)he knowingly possessed commercial quantities of methylamphetamine and cocaine for his commercial purposes;(c)he knowingly possessed of a little over 14 grams of heroin for his commercial purpose and his own use;(d)he knowingly possessed a further quantity of 353 grams of heroin in brick form which he knew was destined for commercial exploitation by his drug supplier and which he was storing for that purpose in exchange for which he got the commercial benefits of discounts for wholesale quantities of methylamphetamine, cocaine and heroin and expected to receive cheaper methylamphetamine and cocaine in the future;(e)he was also a drug user during the period of his offending. Amongst the many considerations taken into account by the sentencing judge was the picture painted by expert opinion evidence concerning the applicant’s mental health.

Evidence

Evidence Before The Court

Her Honour took that evidence into account and in her sentencing remarks stated:“I have regard to the fact that your particular features and mental health concerns have contributed to your offending, and that mitigates against the sentence that I should impose. I also have regard to the fact that because of those mental health concerns your time in custody is likely to be more difficult for you than it might be for others.”The further evidence which the applicant seeks to adduce For reasons which will become clear, it is necessary to record in a little detail how the evidence which the applicant seeks leave to adduce came to be placed before the Court. When the application first came on for hearing the application sought to adduce evidence in the form of –(a)an affidavit from the applicant; and(b)two affidavits from his solicitor. The affidavit from the applicant recorded that it sought to set out “… a detailed account of what has happened to me whilst in custody and what I have been through over the last eight (8) months, since being sentenced on 12 July 2024.” The principal event recorded in the affidavit was that the applicant had been the subject of a serious assault by other inmates on 18 November 2024. As to that event the applicant recorded:“On 18 November 2024, upon arriving in S16 and not being there for more than 10 minutes, I was brutally assaulted, resulting in me being knocked unconscious and sustaining significant injuries as a result of a protracted assault upon me by multiple inmates.I have no recollection of the assault, but have been told by different people, including corrective services officers, inmates, staff at the hospital, and my solicitor, that the assault was brutal and significant, resulting in me being knocked unconscious and my head being stomped multiple times.I have also been told by inmates that I had been sexually assaulted by a prisoner, by them putting a bread bag on their hand and putting his fingers in my anus.As a result of the assault, I was told that I was left unconscious and alone for around fifteen (15) to twenty (20) minutes.” He was required to have treatment in hospital. Upon his return to prison he was put into the detention unit for 2 weeks, having been told it was for his own safety and that due to his significant injuries and fractures and he would be at risk in the general population. He deposed that while he had been imprisoned for a significant time during his life, his current period was the most difficult he had ever faced. He has significant ongoing physical pain which had to be treated by prescription medication. Being on prescription medication impacted his mental health given the efforts he had made in rehabilitation to get off all prescription medication. That caused him “significant mental anguish”. Since the assault he has been constantly in fear and in a “heightened state of anxiety”. He felt that since the assault he has had a significant detriment to his previous mental health status. He was too frightened for his safety to leave his unit in the prison. Accordingly, he had cancelled personal or legal visits by anyone coming to seek him.

Decision

Reasons for decision

Senior counsel had, unremarkably, asked his solicitor to explore the issue raised by the Victorian authorities with the psychologist. Unfortunately, the third affidavit by the solicitor revealed that the solicitor had done so by an email which merely asked the psychologist to work particular phrases into his conclusions, if they “applied”. Amongst other things, the email invited the psychologist to use “something like” the following (emphasis in original):“•the assault has shed new light on the conclusions of the previous report and that his mental health is significant worse than anticipated, borne out by the assault, and that his time will be significantly harder than expected now that this assault has occurred and the better understanding we now have of his illness and that we now, as a result of the assault, have a true sense of his suffering due to his mental health condition.If you can somehow use these phrases or alike as well as your current conclusion, if applicable, that would be great.” To his credit, the affidavit of the solicitor went on to acknowledge that the email should have been phrased differently. Notwithstanding that acknowledgement, it is appropriate both to record and to explain this Court’s unequivocal condemnation of the way he chose to communicate with the expert. We would adopt these two statements of principle by Nichols J in Yelland Security Pty Ltd v Plus Architecture International Pty Ltd concerning the independence expected of expert witnesses (footnotes omitted, emphasis added):[1]“Expert evidence upon which parties rely should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation. An expert should then provide independent assistance to the Court and should not assume the role of the advocate. As Lord Wilberforce said in Whitehouse v Jordan, to the extent that expert evidence is not or is not seen to be the uninfluenced product of the expert, it may be not only incorrect but ‘self-defeating’.…Whether or not an expert report is the product of an independent exercise of judgment is obviously a factual question; but as Brooking J said in Phosphate Cooperative, while it is impossible to lay down specific rules dealing with communications between the expert and the instructing party, ‘the guiding principle must be that care should be taken to avoid any communication which may undermine, or appear to undermine, the independence of the expert’.”[1]Yelland Security Pty Ltd v Plus Architecture International Pty Ltd [2021] VSC 416 at [378]. Of course, that is not to say that situations cannot ever arise when a legal practitioner might be involved in the process of recording an expert’s evidence. Some circumstances might even justify the legal practitioner drafting part of an expert’s report. Such circumstances should be expected to be rare. But where they occur, the legal practitioner must pay particularly careful attention not merely to the form of their communications with the expert, but to the substance and effect of those communications. In New Aim Pty Ltd v Leung (2023) 410 ALR 190 the Full Court of the Federal Court of Australia (Kenny, Moshinsky, Banks-Smith, Thawley and Cheeseman JJ) explained (emphasis added):“There is not one rule or practice which covers all experts or all situations. For example, in the typical case where medical opinion evidence is required, the medical expert would ordinarily draft his or her own report. The same is generally true of an expert valuer preparing a valuation or an accountant preparing a report about economic loss. There may be discussion in relation to drafts of the report, but one would ordinarily expect the report to be drafted by the expert rather than the legal practitioner. Nevertheless, a number of situations might arise where legal practitioners are involved in the process of recording an expert’s evidence, including by preparing or drafting the report. For example, there may be physical, language or resource difficulties. Where these situations arise, care must be taken to ensure that the legal practitioner does not suggest what the expert’s evidence should be and that the report is drafted from what the expert has communicated to the legal practitioner as fact or what the expert has assumed or what the expert’s opinion is. Leaving aside formal matters or instructions or assumptions the expert is required to make, it is difficult to conceive of a situation in which a legal practitioner, acting appropriately and ethically, could draft an expert’s report otherwise than on the basis of what the expert had communicated to the legal practitioner to be his or her evidence.”[2][2]New Aim Pty Ltd v Leung (2023) 410 ALR 190 at [120].

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.