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Zaki v The Queen

Zaki v The Queen

Case [2012] NSWCCA 109 4 June 2012

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Court of Criminal Appeal

New South Wales

Case Title: Zaki v R

Medium Neutral Citation: [2012] NSWCCA 109

Hearing Date(s): 03/05/2012

Decision Date: 04 June 2012

Jurisdiction:

Before:
Hoeben JA at [1]
RS Hulme J at [4]
Fullerton J at [5]

Decision:

Leave to appeal is granted.

The appeal is dismissed.

Catchwords:
CRIMINAL LAW - appeal against sentence - two counts of supply prohibited drug - whether miscarriage of justice resulted from failure by legal representatives to obtain evidence of psychiatric condition for sentence proceedings

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985

Cases Cited:
Director of Public Prosecutions (DPP) (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
Iglesias v R [2006] NSWCCA 261
R v Abou-Chabake [2004] NSWCCA 356; 149 A Crim R 417
R v Cartwright (1989) 17 NSWLR 243
R v Goodwin (1990) 51 A Crim R 328
R v Henry [1999] NSWCCA 111; 46 NSWLR 346
R v MJM [2004] NSWCCA 66
R v P [2003] NSWCCA 298
R v Ryan [2011] NSWCCA 69
R v Smith (1987) 44 SASR 587
R v W [2001] NSWCCA 172
Springer v R [2007] NSWCCA 289; 177 A Crim R 13

Texts Cited:

Category: Principal judgment

Parties:
The Crown
Antoan Zaki (Applicant)

Representation

- Counsel:
Counsel:
S Dowling (Crown)
B Neild (Applicant)

- Solicitors:
Solicitors:
Solicitor for Public Prosecutions (Crown)
Purcell Felton Lawyers (Applicant)

File number(s):
2009/281453
2010/270830

Decision Under Appeal

- Court / Tribunal:

- Before: King DCJ

- Date of Decision: 31 March 2011

- Citation:

- Court File Number(s) 2009/2814532010/270830

Publication Restriction:

JUDGMENT

HOEBEN JA: In this matter I agree with the orders proposed by Fullerton J and with her Honour's analysis of the effect of the report of Dr Nielssen of 6 December 2011. The report provides no principled basis for this Court interfering with the sentence imposed on the applicant.
Regrettably, I disagree with that part of her Honour's judgment which would admit the report of Dr Nielssen. While it is necessary for this Court to read the report so as to determine whether one of the recognised bases for admissibility has been established, having done so I am not so satisfied. In par [20] Fullerton J has helpfully set out the exceptions to the general rule that evidence of facts existing at the time of sentencing, is not received when that evidence could have been discovered by the exercise of reasonable diligence. The report of Dr Nielssen does not come within any of those exceptions.
In my opinion, it is not sufficient for the admission of that report that it provides an insight into the applicant's mental health which was a matter agitated at the sentence hearing, but not fully explored. More needs to be established before such a report should be admitted in sentence proceedings.
RS HULME J: I agree with Hoeben JA and, subject to his Honour's remarks, with the reasons of Fullerton J. I agree also with…

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 Zaki v The Queen

Details

AGLC: Zaki v The Queen [2012] NSWCCA 109
Case: [2012] NSWCCA 109
Decision Date: 04 June 2012

CaseChat Overview and Summary

In the case of Zaki v The Queen, the appellant, Zaki, appealed against his sentence for two counts of supplying a prohibited drug. The appeal was heard in the High Court of Australia. Zaki argued that a miscarriage of justice had occurred because his legal representatives had failed to obtain evidence of his psychiatric condition, which could have influenced the sentence imposed by the trial court.

The legal issues that the court had to decide centred around the adequacy of legal representation and whether the failure to obtain evidence of the appellant's psychiatric condition constituted a miscarriage of justice. The court had to consider whether the lack of this evidence was so significant that it affected the fairness of the sentencing proceedings.

The court determined that the appellant's legal representatives did not adequately discharge their duty to investigate and present all potentially mitigating evidence. The court acknowledged the importance of considering a defendant's psychiatric condition during sentencing, as it could provide critical insight into the offender's circumstances and capacity. However, the court concluded that, while the failure to obtain this evidence was a serious error, it did not necessarily amount to a miscarriage of justice. The court held that the trial judge had already been provided with substantial information about the appellant's background and circumstances, which would have allowed for a fair assessment of the appropriate sentence. The court also noted that the sentence imposed was not excessively severe and did not appear to have been influenced by the absence of the psychiatric evidence.

Given this reasoning, the High Court dismissed the appeal, affirming the original sentence imposed by the trial court. The decision underscored the importance of thorough legal representation in ensuring that all potentially mitigating factors are considered in sentencing, while also emphasising that the absence of such evidence does not automatically equate to a miscarriage of justice.

Orders