Citation: Moustafa v R [2019] NSWCCA 89
Court: Court of Criminal Appeal, New South Wales
Date: 3 May 2019
Judge(s): Payne JA (principal judgment); Wilson J and Ierace J (agreeing)
Background
The appellant was convicted after a jury trial in the District Court of robbery armed with an offensive weapon under s 97(1) of the Crimes Act 1900 (NSW). The offence arose from an incident on 14 February 2015 in which the complainant alleged the appellant assaulted her with a knife and stole her phone, laptop, bicycle and passport from her home unit.
A critical complication emerged from the appellant's shifting instructions. His original position was that he was not present at the complainant's home at all. After the trial judge ruled identification evidence admissible, he changed his instructions to admit presence but deny the assault and robbery. Then, after the complainant had given evidence and the Crown had closed its case, he gave his lawyers a third version: that he had been attacked by the complainant with a knife. This final version was the one he gave in evidence, and it was the version the Crown attacked as a recent invention.
The appellant was sentenced to four years and six months imprisonment, with a non-parole period of two years and eight months. He appealed on the ground that his trial counsel's conduct constituted incompetence amounting to a miscarriage of justice.
Legal Issues
- Whether trial counsel's failure to recall the complainant to address the recent invention issue caused a miscarriage of justice
- Whether trial counsel's failure to seek a jury direction from the trial judge about the Crown's recent invention allegation caused a miscarriage of justice
- Whether, across both grounds, the appellant lost a chance of acquittal that was fairly open to him
Decision
On the first ground, the Court of Criminal Appeal examined the objective circumstances of the trial and concluded that trial counsel's forensic choices were not merely rational but compelling. Counsel had cross-examined the complainant on the basis that the appellant was present but committed no assault. Recalling the complainant after the appellant produced a third, contradictory version of events would have made recent invention the centrepiece of the trial, rather than leaving it as a background concern.
The Court further noted that the complainant had been argumentative and difficult during cross-examination. Recalling her in circumstances where the recent invention issue had only been raised in a muted way by the Crown would have done the appellant's case more harm than good. Similarly, seeking a discharge of the jury had no proper basis and would not have been an appropriate course.
On the second ground, the appellant required leave to appeal under r 4 of the Criminal Appeal Rules (NSW). The Court refused leave. During oral argument, the appellant's counsel conceded that seeking a jury direction about recent invention would have been "impractical." Payne JA went further, characterising it as objectively foolish. The trial judge had said nothing about any change in the appellant's case or about recent invention. Persuading the judge to give such a direction would only have spotlighted a serious credibility problem that the Crown had touched on only lightly.
The ultimate question, drawn from established authority, was whether the appellant had lost a chance of acquittal that was fairly open. The Court was satisfied he had not. The appeal was dismissed on ground one and leave to appeal was refused on ground two.
Orders Made
- Appeal dismissed on ground 1
- Leave to appeal under r 4 of the Criminal Appeal Rules (NSW) refused on ground 2
Key Takeaways
- The Court of Criminal Appeal confirmed that the test for incompetence of counsel requires more than showing that different forensic choices were available; the impugned conduct must be incapable of rational explanation and must have caused the appellant to lose a chance of acquittal that was fairly open.
- Where an accused provides materially different instructions after the close of the Crown case, trial counsel's decision not to recall the complainant to address an emerging recent invention issue can be objectively rational rather than constitutive of incompetence.
- Seeking a jury direction that draws attention to a problem the trial judge and Crown have not emphasised may itself be strategically counterproductive, and the failure to seek such a direction will not necessarily ground an appeal.
- In dismissing the appeal, the Court applied a line of authority including Nudd v The Queen [2006] HCA 9, Ali v R [2005] HCA 8, and TKWJ v R (2002) 212 CLR 124, each confirming that courts assess counsel competence through the lens of objective rationality rather than hindsight.
- Late and shifting client instructions are a material factor in assessing whether trial counsel's resulting forensic choices were reasonable, as those instructions directly constrained the options available.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 97
- Criminal Appeal Rules (NSW), r 4
- Evidence Act 1995 (NSW), ss 46, 65, 192
Cases
- Ahmu v R [2014] NSWCCA 312
- Alkhair v R [2016] NSWCCA 4
- Ali v R [2005] HCA 8; 79 ALJR 662
- Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22
- Matthews v R [2013] NSWCCA 187
- Nudd v The Queen [2006] HCA 9; 80 ALJR 614
- Qing An v R [2007] NSWCCA 53
- TKWJ v R (2002) 212 CLR 124; [2002] HCA 46