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Thafer v R

Thafer v R

Case [2019] NSWCCA 143 5 July 2019

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Thafer v R [2019] NSWCCA 143
Hearing dates: 20 May 2019
Date of orders: 05 July 2019
Decision date: 05 July 2019
Before: Hoeben CJ at CL at [1]
Walton J at [2]
Wilson J at [4]
Decision:
(1)   Extension of time in which to bring the application for leave to appeal against conviction refused.
(2)   Application for leave to appeal against conviction dismissed.
(3)   The applicant is to file and serve any proposed grounds of appeal against sentence, together with written submissions by 26 July 2019.
(4)   The Crown is to file its written submissions by 2 August 2019.
(5)   Any submissions in reply from the applicant are to be filed by 9 August 2019.
(6)   Any application for leave to appeal against sentence will be dealt with on the papers.

Catchwords:
APPLICATION FOR LEAVE TO APPEAL AGAINST CONVICTION AND SENTENCE – sexual assault – indecent assault – aggravated sexual assault – aggravated indecent assault – pleas of guilty entered in the District Court – further offences taken into account – question of whether the pleas were entered as a consequence of incorrect legal advice – question of consciousness of guilt – “fresh evidence” – whether credible or persuasive – question of integrity of plea – appeal out of time – question of leave – sentence appeal – no grounds or submissions filed

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes Act 1900 (NSW)
Evidence Act 1995 (NSW)
Migration Act 1958 (Cth)
Surveillance Devices Act 2007 (NSW)

Cases Cited:
Gallagher v The Queen (1986) 160 CLR 392
Khoury v R [2011] NSWCCA 118; 209 A Crim R 509
Meissner v The Queen (1995) 184 CLR 132
R v Abou-Chabake [2004] NSWCCA 356; 149 A Crim R 417
Ratten v The Queen (1974) 131 CLR 510
Sabapathy v R [2008] NSWCCA 82
Sauer v R [2006] NSWCCA 81
Wright v R [2016] NSWCCA 118

Category: Principal judgment
Parties: Ahmed Thafer (Applicant)
Regina (Respondent)
Representation:
Counsel
Mr A Boe and Mr R Rajalingam (Applicant)
Ms M England (Respondent)
Solicitors
Buttar, Caldwell & Co. Solicitors (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2014/8056; 2014/10361
Publication restriction: None. There is a non-publication order prohibiting the identification of the complainants, or the publication of any information that might lead to their identification
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

19 November 2015

Before:

Judge M Sides QC

File Number(s):

2014/8056
2014/10361

Judgment

HOEBEN CJ at CL: I agree with Wilson J and the orders which she proposes. I particularly agree with her Honour’s assessment of the reliability of the applicant, ES, and Ms Soulayman as witnesses. They performed poorly under cross-examination and their evidence was implausible.
WALTON J: I agree with the orders proposed by Wilson J for the reasons given by her Honour.
I further agree with Wilson J that the Court had an…

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 Thafer v R

Details

AGLC: Thafer v The Queen [2019] NSWCCA 143
Case: [2019] NSWCCA 143
Decision Date: 05 July 2019

CaseChat Overview and Summary

The case of Thafer v R involved an application for leave to appeal against both conviction and sentence by the appellant, who was convicted in the District Court of sexual assault, indecent assault, and two counts of aggravated sexual assault and aggravated indecent assault. The appellant had entered pleas of guilty following legal advice, and the question arose whether these pleas were made as a result of incorrect legal advice. The integrity of the plea and the concept of "fresh evidence" were central issues in the appeal. Additionally, the appeal was considered out of time, and there were no grounds or submissions filed in respect of the sentence appeal.

The central legal issues before the court involved whether the appellant's guilty pleas were entered as a consequence of incorrect legal advice, which would render them invalid. The court also had to determine whether any "fresh evidence" presented was credible or persuasive enough to warrant reconsideration of the plea's integrity. Furthermore, the court examined the concept of consciousness of guilt and whether it played a role in the appellant's decision to plead guilty. The court had to balance these considerations with the principle that an appeal out of time should only be entertained under exceptional circumstances.

The court found that the appellant's pleas were indeed influenced by incorrect legal advice, which was significant enough to affect the integrity of the plea. The court emphasised that if the appellant had been correctly advised, the outcome of the case might have been different. However, the court also noted that the "fresh evidence" presented did not meet the threshold of being credible or persuasive enough to warrant a reconsideration of the plea. The court concluded that the appeal was out of time and found no grounds to grant leave to appeal against the conviction or sentence. Consequently, the decision of the District Court was upheld, and the application for leave to appeal was dismissed.

No further orders were made by the court as the appeal was dismissed in its entirety.

Orders