Kamali v R [2019] NSWCCA 186

Kamali v R [2019] NSWCCA 186

No miscarriage of justice was established. Counsel was entitled, after giving appropriate advice, to respect the applicant's plainly expressed wish to proceed with a joint trial. The evidence about intended use of the explosive devices was objectionable and the ruling admitting it was wrong, but the trial judge's cautionary directions and the Crown's treatment of the witnesses meant it did not cause a miscarriage. Counsel's question disclosing that the applicant had been in custody was inept and not rationally explicable, but the Crown case was so strong that the applicant was not deprived of a fairly open chance of acquittal. The sentence was not manifestly excessive having regard to the...

Jurisdiction
Australia
Judgment Date
09 August 2019
Procedural Posture
Criminal Appeal Against Conviction and Application for Leave to Appeal Against Sentence / Court of Criminal Appeal; Appeal From District Court Convictions and Sentence
Outcome
Appeal against conviction dismissed; leave granted to appeal against sentence; appeal against sentence dismissed.
Legal Topics
['conviction Appeal' 'incompetence of Counsel' 'miscarriage of Justice' 'joint Trial' 'admission of Prejudicial Evidence' 'manifest Excess']
['criminal Law' 'criminal Procedure' 'sentencing'] ['conviction Appeal' 'incompetence of Counsel' 'miscarriage of Justice' 'joint Trial' 'admission of Prejudicial Evidence' 'manifest Excess']

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Procedural Posture

Criminal Appeal Against Conviction and Application for Leave to Appeal Against Sentence / Court of Criminal Appeal; Appeal From District Court Convictions and Sentence

Legal Issues

  1. 1 ['Whether the trial miscarried because defence counsel failed to seek separation of Counts 1-3 from Counts 4-7 on the indictment.' 'Whether evidence from a Crown witness concerning the intended use of explosive devices caused an unfair trial or miscarriage of justice.' "Whether defence counsel's disclosure in cross-examination that the applicant had previously been in custody caused a miscarriage of justice." 'Whether the aggregate sentence of imprisonment for 10 years with a non-parole period of 6 years was manifestly excessive.']

Ratio Decidendi

No miscarriage of justice was established. Counsel was entitled, after giving appropriate advice, to respect the applicant's plainly expressed wish to proceed with a joint trial. The evidence about intended use of the explosive devices was objectionable and the ruling admitting it was wrong, but the trial judge's cautionary directions and the Crown's treatment of the witnesses meant it did not cause a miscarriage. Counsel's question disclosing that the applicant had been in custody was inept and not rationally explicable, but the Crown case was so strong that the applicant was not deprived of a fairly open chance of acquittal. The sentence was not manifestly excessive having regard to the...

Court Disposition

Appeal against conviction dismissed; leave granted to appeal against sentence; appeal against sentence dismissed.

Orders

  • ['Appeal against conviction dismissed.' 'Leave granted to appeal against sentence.' 'Appeal against sentence dismissed.']