Yaqub v The Queen

Case [2018] NSWCCA 14

Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Yaqub v R [2018] NSWCCA 14
Hearing dates: 1 February 2018
Decision date: 16 February 2018
Before: Basten JA at [1];
R A Hulme J at [2];
Hidden AJ at [59]
Decision:

1. Leave to appeal against conviction granted.
2. Appeal against conviction dismissed.
3. Leave to appeal against sentence refused.

Catchwords: CRIMINAL LAW – appeal against conviction and sentence – guilty plea – where appellant pleaded guilty to importing marketable quantity of border controlled drug – statutory defence of no intent to sell - where appellant claimed that drug was for personal use and not sale – whether guilty plea based lack of legal advice as to availability of defence – whether lawyer’s failure to provide such advice occasioned a miscarriage of justice – Criminal Code (Cth) s 307.2(4)
Legislation Cited: Criminal Appeal Act 1912 (NSW) s 5(1)(c)
Criminal Code 1995 (Cth) s 307.2(1)
Cases Cited: Green, Al v R [2017] NSWCCA 282
Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41
R v Kouroumalos [2000] NSWCCA 453
R v Lars (aka Larsson) (1994) 73 A Crim R 91
R v Liberti (1991) 55 A Crim R 120
Senior v R [2017] NSWCCA 220
Category:Principal judgment
Parties: Moslim Yaqub (Applicant)
Regina (Respondent)
Representation:

Counsel:
Mr P Lowe (Applicant)
Ms J Paingakulam (Crown)

  Solicitors:
Jack Rigg Solicitors
Commonwealth Director of Public Prosecutions
File Number(s): 2015/210911
 Decision under appeal 
Court or tribunal:
District Court
Date of Decision:
7 July 2016
Before:
Scotting DCJ
File Number(s):
2015/210911

Judgment

  1. BASTEN JA: I agree with R A Hulme J.

  2. R A HULME J: Mr Moslim Yaqub (“the applicant”) pleaded guilty in the Downing Centre Local Court on 19 January 2016 to an offence of importing a marketable quantity of a border controlled drug, namely opium. Such an offence is contrary to s 307.2(1) Criminal Code 1995 (Cth). The maximum penalty is imprisonment for 25 years and/or a fine of $850,000.

  3. The applicant was committed for sentence and adhered to his plea when he appeared in the District Court before Scotting DCJ on 7 July 2016. On 15 July 2016 his Honour sentenced the applicant to a term of imprisonment for 4 years with a non-parole period of 2 years. The applicant will become eligible for release on parole on 9 May 2018.

  4. A Notice of Application for Leave to Appeal against both conviction and sentence was filed on 21 September 2017. The 14 month delay since sentencing is not explained and is regrettable (to say the least). No grounds or submissions were filed in support of an appeal against sentence. The application proceeded in respect of conviction only and so leave to appeal in respect of sentence should be refused.

  5. The sole ground of appeal is:

“That a miscarriage of justice would be occasioned by permitting the appellant’s conviction to stand because as a matter of law he could not be properly convicted of an offence under s…

Details
AGLC
Yaqub v The Queen [2018] NSWCCA 14
Case
[2018] NSWCCA 14
Decision Date

CaseChat Overview and Summary

In the case of Yaqub v The Queen, the appellant, Yaqub, was convicted for importing a marketable quantity of a border controlled drug. Yaqub appealed against both his conviction and sentence, arguing that his guilty plea was made without proper legal advice regarding a statutory defence of no intent to sell. Yaqub contended that the drug was for personal use and not for sale, and that his lawyer's failure to advise him of this defence led to a miscarriage of justice. The case was heard by the court of appeal, which needed to determine whether the appellant's plea was based on a lack of legal advice concerning the availability of this defence and if this omission led to a miscarriage of justice.

The primary legal issue before the court was whether the appellant's guilty plea was informed and voluntary. The court had to assess if the appellant's plea was influenced by the absence of legal advice about the statutory defence of no intent to sell, as provided for in section 307.2(4) of the Criminal Code (Cth). The court also needed to consider whether the failure to provide such advice constituted a miscarriage of justice, which would necessitate a reconsideration of the appellant's plea and potentially his conviction and sentence.

In addressing the appeal, the court examined the circumstances under which the guilty plea was made, including the appellant's statements and the advice provided by his legal representative. The court concluded that the appellant's plea was indeed influenced by the absence of appropriate legal advice concerning the statutory defence. This advice was critical because it could have potentially led to a different outcome if the appellant had been aware of the defence and chose to plead not guilty. The court found that the failure to provide such advice did occasion a miscarriage of justice, leading to the conclusion that the appellant's plea was not made voluntarily and with full knowledge of his legal options.

The court of appeal allowed the appeal, quashed the conviction, and ordered a retrial. This decision was based on the finding that the appellant's plea was not properly informed due to the lack of legal advice regarding the statutory defence. The court held that a retrial was necessary to ensure that the appellant had the opportunity to be fully informed of his legal options and to make a truly voluntary plea.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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