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Court of Criminal Appeal 5 July 2019

Thafer v R

[2019] NSWCCA 143

Sexual offences
SEXUAL ASSAULT INDECENT ASSAULT AGGRAVATED SEXUAL ASSAULT AGGRAVATED INDECENT ASSAULT FURTHER OFFENCES TAKEN INTO ACCOUNT QUESTION OF CONSCIOUSNESS OF GUILT

Citation: Thafer v R [2019] NSWCCA 143
Court: Court of Criminal Appeal, New South Wales
Date: 5 July 2019
Judge(s): Hoeben CJ at CL, Walton J, Wilson J (judgment delivered by Wilson J)

Background

The applicant pleaded guilty in the District Court to three sexual assault and indecent assault charges involving three complainants, two of whom were minors. The offences included an indecent assault on an 18-year-old woman, an aggravated indecent assault on a 13-year-old girl, and an aggravated sexual assault on a 17-year-old woman. Two further offences were taken into account on sentence via Form 1. He was sentenced to an aggregate term of 9 years and 9 months imprisonment, with a non-parole period of 6 years.

The applicant sought leave to appeal against both his convictions and his sentence, substantially out of time. On the conviction limb, his central argument was that his guilty pleas had been entered as a consequence of incorrect legal advice, and that fresh evidence undermined the integrity of those pleas. On the sentence limb, no grounds or submissions were filed in support of the application.

  • Whether the extension of time to appeal against conviction should be granted
  • Whether the guilty pleas were entered as a consequence of incorrect or misleading legal advice, such that they lacked integrity
  • Whether the "fresh evidence" relied upon was credible, persuasive, or capable of undermining the convictions
  • Whether the applicant's own evidence and that of supporting witnesses was reliable
  • How to proceed with the sentence appeal given no grounds or submissions had been filed, and the non-parole period was imminent

Decision

The Court dismissed the conviction appeal and refused an extension of time in which to bring it. The central question was whether the pleas of guilty had been properly entered. The Court found that the plea process in the District Court was carefully conducted: the presiding judge queried the pleas at arraignment, gave the applicant and his solicitor the opportunity to confer, and the applicant twice confirmed his guilty intentions. He also signed agreed statements of fact on each page, acknowledging their contents.

The "fresh evidence" relied upon by the applicant was assessed as neither credible nor persuasive. All three judges independently formed adverse views about the reliability of the applicant as a witness, finding that he performed poorly under cross-examination and gave implausible evidence. The same assessment applied to supporting witnesses ES and a Ms Soulayman. By contrast, the Court found the applicant's former solicitor, Mr Rahme, to be a truthful and reliable witness. His evidence did not support the claim that incorrect legal advice had caused the pleas to be entered.

Because the "fresh evidence" failed to meet the requisite standard, there was no proper basis to conclude that the integrity of the pleas had been compromised. The Court applied established principles concerning the circumstances in which a guilty plea may be impugned on appeal, and found those circumstances were not made out here.

On the sentence appeal, no grounds or submissions had been filed by the applicant. Given the practical constraints of the imminent non-parole period expiry and the impossibility of relisting the matter before the same bench within the available time, the Court resolved to proceed on the papers, setting a timetable for the filing of grounds and submissions.

Orders Made

  • Extension of time in which to bring the application for leave to appeal against conviction refused
  • Application for leave to appeal against conviction dismissed
  • Applicant to file and serve any proposed grounds of appeal against sentence, and written submissions, by 26 July 2019
  • Crown to file written submissions by 2 August 2019
  • Applicant to file any reply submissions by 9 August 2019
  • Any application for leave to appeal against sentence to be dealt with on the papers

Key Takeaways

  • A guilty plea will not be set aside on appeal merely because the applicant later disputes the advice he received, particularly where the plea process was carefully conducted and the trial judge gave the applicant multiple opportunities to confirm the plea was freely and correctly entered.
  • Fresh evidence tendered in support of a conviction appeal must be credible and persuasive to have any prospect of success. Where the witnesses giving that evidence perform poorly under cross-examination and offer implausible accounts, the Court will decline to act on it.
  • The Court of Criminal Appeal assessed the witnesses directly and found the applicant, and those who supported his account, to be unreliable. The former solicitor, whose evidence contradicted the applicant's narrative of incorrect advice, was preferred.
  • In dismissing the conviction appeal, the Court confirmed that signing agreed statements of facts and acknowledging guilt of Form 1 offences before the court are significant indicators of the integrity of a plea.
  • Where a sentence appeal is filed without grounds or submissions, and the non-parole period is imminent, the Court may direct that the application be determined on the papers following a compressed filing timetable, rather than adjourning to a fresh oral hearing.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61J(1), 61L, 61M(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32, 33, 53A
- Evidence Act 1995 (NSW)
- Migration Act 1958 (Cth)
- Surveillance Devices Act 2007 (NSW)

Cases
- 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