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Shams (a pseudonym) v The King

Shams (a pseudonym) v The King

Case [2024] VSCA 260 6 November 2024

Appeal

Sentencing

Competence of Counsel

Substantial Miscarriage of Justice

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0158

ZAFAR SHAMS (A PSEUDONYM)	Applicant
v
THE KING	Respondent

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JUDGES:	McLEISH, ORR and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	21 October 2024
DATE OF JUDGMENT:	6 November 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 260
JUDGMENT APPEALED FROM:	DPP v Shams (a pseudonym) [2023] VCC 1479 (Judge Tinney)

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CRIMINAL LAW – Appeal – Conviction – Competence of counsel – Applicant convicted of statutory kidnapping (two counts), contravention of intervention order intending to cause harm or fear (three counts), causing reckless injury (two counts), and conduct endangering life – Counsel elicited evidence of further uncharged violence by applicant during cross-examination of complainant – Whether rational and forensic basis for cross-examination – Counsel failed to put matters to complainant in cross-examination in breach of rule in Browne v Dunn (1893) 6 R 67 – Directions given to jury as to weight to be given to matters not put in cross-examination – Whether counsel’s closing address contained poorly conceived arguments – Whether substantial miscarriage of justice – Leave to appeal refused.

R v Birks (1990) 19 NSWLR 677; TKWJ v The Queen (2002) 212 CLR 124; Browne v Dunn (1893) 6 R 67, applied; Nudd v The Queen (2006) 225 ALR 161; MWJ v The Queen (2005) 222 ALR 436; Hofer v The Queen (2021) 274 CLR 351; R v Manunta (1989) 54 SASR 17; R v Thompson (2000) 21 VR 135, referred to.

CRIMINAL LAW – Appeal – Sentence – Applicant convicted of statutory kidnapping (two counts) – Sentences of 7 years’ imprisonment on each charge with 2 years’ cumulation – Applicant removed his two children to Pakistan without the consent or knowledge of their mother – Applicant returned to Australia without children – Children 12 months old and two years old respectively – Significant premeditation and planning – Applicant obtained access to children by deception – Applicant subject to intervention order at time of the offending – No criminal history – Whether sentences manifestly excessive – Leave to appeal refused.

Sentencing Act 1991, s 5(2)(b).

Dalgliesh (a pseudonym) v The Queen (2017) 262 CLR 328; Clarkson v The Queen (2011) 32 VR 361; DPP v Macarthur [2019] VSCA 71, applied; Tonkin v The King [2023] VSCA 194; Roe v The Queen [2021] VSCA 54; Huynh v The Queen [2020] VSCA 222, referred to.

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Counsel
Applicant:		Mr T Kassimatis KC with Ms A Balkin
Respondent:		Ms K Hamill
Solicitors
Applicant:	Papa Hughes Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

MCLEISH JA
ORR JA
KAYE JA:

The applicant pleaded not guilty to an indictment which contained 12 charges. The jury, empanelled on the trial, returned guilty verdicts on eight of the charges, namely, charges 2, 5 and 10 (contravention of a Family Violence Intervention Order intending to cause harm or fear for safety), charges 4 and 7 (recklessly causing injury), charge 8…

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 Shams (a pseudonym) v The King

Details

AGLC: Shams (a pseudonym) v The King [2024] VSCA 260
Case: [2024] VSCA 260
Decision Date: 6 November 2024

CaseChat Overview and Summary

The case of Shams (a pseudonym) v The King involved an appeal against both conviction and sentence. Shams was convicted of multiple serious offences including statutory kidnapping, contravention of an intervention order, and causing reckless injury. The appeal challenged both the competence of counsel during the trial and the severity of the sentences imposed. The court considered whether the evidence presented by the defence, particularly during cross-examination, met the legal standards set in previous cases. Additionally, the appeal argued that the sentences were manifestly excessive, taking into account the nature of the offences and the circumstances surrounding them.

The primary legal issues in this case were whether the cross-examination of the complainant by the defence was conducted within the parameters set by the rule in Browne v Dunn, and whether the counsel's arguments during the closing address contained any poorly conceived elements that could have led to a substantial miscarriage of justice. Furthermore, the appeal sought to determine if the sentences imposed were manifestly excessive, considering the premeditation and planning involved in the offences.

The court found that the cross-examination of the complainant by the defence did not breach the rule in Browne v Dunn, as there was a rational and forensic basis for the questions asked. The directions given to the jury regarding the weight to be given to matters not put in cross-examination were also deemed appropriate. The court further held that the counsel's closing address did not contain any poorly conceived arguments that would warrant a substantial miscarriage of justice. Regarding the sentences, the court determined that they were not manifestly excessive, considering the significant premeditation and planning involved in the offences, and the deception used to obtain access to the children.

The court refused leave to appeal, upholding both the conviction and the sentences imposed on Shams. The appeal did not meet the threshold for a substantial miscarriage of justice, and the sentences were deemed appropriate given the circumstances.

Orders