Citation: Kamali v R [2019] NSWCCA 186
Court: Court of Criminal Appeal, NSW
Date: 9 August 2019
Judges: Simpson AJA; Bellew J; Campbell J
Background
The applicant was convicted on seven counts in the District Court following a jury trial in October 2016. The charges fell into two groups: three counts arising from a demand for money accompanied by threats and an attempted vehicle theft, and four counts of possessing prohibited weapons (including improvised explosive devices) found during a search warrant executed at the applicant's home.
The two groups of charges were tried jointly before the same jury. During the trial, a Crown witness gave evidence suggesting the weapons were intended for criminal activity, in response to questions from the Crown. Defence counsel also, during cross-examination of that same witness, inadvertently revealed that the applicant had previously served time in custody.
The applicant was convicted on all counts and sentenced to an aggregate term of 10 years' imprisonment with a non-parole period of 6 years. He appealed both his conviction and his sentence, arguing that his trial counsel's poor performance had caused a miscarriage of justice, and that the sentence was manifestly excessive.
Legal Issues
- Whether trial counsel's failure to apply for separate trials on the two groups of counts amounted to incompetence that caused a miscarriage of justice
- Whether the failure to seek a direction after damaging Crown evidence about the intended use of the weapons constituted a miscarriage of justice, particularly given the trial judge's earlier erroneous ruling on the objection
- Whether trial counsel's cross-examination, which exposed the applicant's prior custody, gave rise to a miscarriage of justice
- Whether the aggregate sentence of 10 years was manifestly excessive
Decision
Counsel incompetence and separate trials: The Court confirmed the general principle that a client is bound by decisions made by counsel. To justify appellate intervention, the applicant must demonstrate that counsel's incompetence deprived him of a chance of acquittal that was fairly open. Although counsel had advised seeking separate trials and the applicant refused, the Court held that counsel were entitled to respect the applicant's autonomous decision to consent to a joint trial. No miscarriage of justice arose from this ground.
The weapons use evidence: The Crown's line of questioning about the intended use of the weapons was objectionable, and the trial judge was wrong to overrule defence counsel's objection. However, the trial judge's summing up specifically warned the jury that the relevant witness's evidence might be unreliable and that caution should be exercised before accepting it. The Court found that this direction was sufficient to neutralise any potential unfairness, and no miscarriage of justice resulted.
Disclosure of prior custody: The Court found that trial counsel's cross-examination, which introduced evidence of the applicant's previous time in custody, reflected a level of ineptitude that could not be explained by any rational decision-making. Despite this finding, the Court concluded that the error did not deprive the applicant of a chance of acquittal that was fairly open, and therefore did not constitute a miscarriage of justice.
Sentence: The Court rejected the submission that the sentence was manifestly excessive. It found that the sentencing judge had correctly assessed the objective seriousness of the offences, taken account of the applicant's personal circumstances, and applied the relevant standard non-parole period for the weapons offences. The applicant's lengthy criminal history meant he was not entitled to leniency. No error in the exercise of the sentencing discretion was established.
Orders Made
- Appeal against conviction dismissed
- Leave granted to appeal against sentence
- Appeal against sentence dismissed
Key Takeaways
- The Court of Criminal Appeal confirmed that counsel incompetence will only ground a conviction appeal where it can be shown the applicant lost a chance of acquittal that was fairly open to him. A poor tactical decision alone is insufficient.
- Respecting a client's autonomous choice to proceed with a joint trial, even against counsel's advice, does not constitute incompetence capable of establishing a miscarriage of justice.
- Where a trial judge errs in overruling an objection to damaging evidence, a careful and specific warning to the jury in the summing up can be sufficient to prevent that error from becoming a miscarriage of justice.
- Ineptitude in cross-examination that introduces prejudicial material about an accused's prior custody was criticised in strong terms, yet the Court found it did not meet the threshold for miscarriage of justice because acquittal had not been a fairly open outcome.
- In sentencing for prohibited weapons offences under the Weapons Prohibition Act 1998 (NSW), the prescribed standard non-parole period remains a relevant sentencing consideration alongside the maximum penalty and the objective seriousness of the particular conduct.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 97, 99(1), 154F, 344A(1)
- Weapons Prohibition Act 1998 (NSW), s 7(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 4 Div 1A, s 53A
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Criminal Procedure Act 1986 (NSW), s 29
- Criminal Appeal Rules, r 4
Cases:
- R v Birks (1990) 19 NSWLR 677
- TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
- Nudd v The Queen [2006] HCA 9; (2006) 162 A Crim R 301
- Seymour v R [2006] NSWCCA 206; (2006) 162 A Crim R 576
- Alkhair v R [2016] NSWCCA 4; (2016) 255 A Crim R 419
- R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
- Ali v The Queen [2005] HCA 8; (2005) 79 ALJR 662
- Dawson v The Queen (1961) 106 CLR 1; [1961] HCA 74
- Mraz v The Queen (1955) 93 CLR 493; [1955] HCA 59
- Perry v The Queen (1982) 150 CLR 580; [1982] HCA 75
- Sutton v The Queen (1984) 152 CLR 528; [1984] HCA 5