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Court of Criminal Appeal 20 July 2017

Hanna v R

[2017] NSWCCA 168

Theft & property
APPEAL APPEAL AGAINST SENTENCE PLEA OF GUILTY CRIMINAL EVIDENCE CHALLENGE TO COMPETENCE OF COUNSEL

Citation: Hanna v R [2017] NSWCCA 168
Court: NSW Court of Criminal Appeal
Date: 20 July 2017
Judges: Basten JA; Harrison J; Schmidt J

Background

The appellant pleaded guilty to armed robbery under s 97(1) of the Crimes Act 1900 (NSW) and was sentenced in the District Court to a total term of 5 years and 4 months, with a non-parole period of 4 years. He sought leave to appeal against that sentence, arguing that incompetence by his counsel at the sentencing hearing caused the proceedings to miscarry and rendered the sentence manifestly excessive.

The specific complaints centred on events at the sentencing hearing on 1 July 2015. Counsel had been briefed late and with little supporting material. He sought an adjournment (partly because a medical expert's report was not ready in time), was refused, and there was a brief disruption concerning whether instructions had been withdrawn. The appellant also contended that counsel declined to call him to give evidence, which meant that no oral evidence of remorse or personal circumstances was placed before the sentencing judge.

The application for leave to appeal was filed more than 15 months after the sentence was imposed. The proceedings in the Court of Criminal Appeal involved multiple rounds of affidavit evidence from the appellant, his solicitor, and the barrister who had appeared below, and raised significant questions about the admissibility of that material.

  • Whether the sentencing proceedings miscarried due to the incompetence of counsel, such that the sentence was manifestly excessive.
  • Whether evidence of counsel's instructions, the appellant's stated wishes, and the subjective reasons behind forensic decisions was admissible on an appeal of this kind.
  • What the correct legal test is for establishing a miscarriage of justice based on alleged incompetence of counsel.

Decision

The Court granted leave to appeal but unanimously dismissed the appeal. Harrison J (with whom Schmidt J agreed) was not satisfied that counsel's conduct had caused a material irregularity or that there was any significant possibility that the outcome of the sentencing proceedings had been affected. The failure to obtain the medical expert's report in time was attributed principally to the solicitors' anterior failure to engage the expert promptly, not to counsel's conduct on the day.

On the evidence, Harrison J found that the events at the sentencing hearing, including the brief episode around the withdrawal and reinstatement of instructions, were neither unusual nor exceptional. The Court was not satisfied that compelling material had been available but left untendered, or that the sentencing judge had been left to proceed on materially incomplete information.

Basten JA wrote separately to address an important evidentiary question: the proper scope of evidence admissible in appeals alleging incompetence of counsel. His Honour held that the applicable standard is objective, focused on the fairness of the process rather than the wisdom of particular forensic decisions. Evidence of what the appellant had wanted to say, or of private instructions given to counsel, was generally inadmissible. Relying on the High Court's statement in Nudd v The Queen, Basten JA confirmed that counsel's decisions bind the client and are assessed by reference to objective circumstances, without investigation of subjective reasons.

The Court identified the relevant test as whether counsel engaged in conduct "incapable of rational explanation on forensic grounds," following Vella v R; Siskos v R. No such conduct was established here. Although the evidence tendered by both parties was ultimately admitted on a pragmatic basis (having been relied upon and forming part of the reasoning), Basten JA cautioned that such a pragmatic approach should not be treated as a model for future cases.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A miscarriage of justice based on counsel's alleged incompetence is assessed by an objective standard, focusing on the fairness of the process rather than the wisdom of counsel's forensic choices: Nudd v The Queen [2006] HCA 9.
  • The applicable threshold requires conduct "incapable of rational explanation on forensic grounds." A difference of opinion between client and counsel about forensic strategy does not, of itself, establish a miscarriage.
  • Evidence of a client's private instructions to counsel, or of what the accused wished to say in proceedings, is generally inadmissible on such an appeal. Permitting it would invite courts to second-guess forensic judgments and could require revelation of information that is invidious and contrary to the appellant's own interests.
  • In dismissing the appeal, the Court distinguished between the conduct of counsel on the day and the solicitors' earlier failure to arrange a medical expert's report in time. Upstream failures by the instructing solicitor did not translate into incompetence on counsel's part at the hearing.
  • The Court of Criminal Appeal cautioned that the pragmatic admission of otherwise inadmissible evidence in this case should not be taken as precedent. Future matters may see such evidence excluded or cross-examination on it restricted.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 97(1) (armed robbery)

Cases
- Nudd v The Queen [2006] HCA 9; 80 ALJR 614
- Vella v R; Siskos v R [2015] NSWCCA 148
- John Wayne Tsiakis v R [2015] NSWCCA 187
- R v Birks (1990) 19 NSWLR 677
- Ahmu v R; Director of Public Prosecutions v Ahmu [2014] NSWCCA 312
- Matthews v R [2013] NSWCCA 187