Habambo v R [2023] NSWCCA 328

Habambo v R [2023] NSWCCA 328

Leave to appeal against conviction was refused because Exhibit C was admissible and relevant to the credibility of the applicant's sister about the complaint made to her, its admission and use did not create unfair prejudice or miscarriage, and counsel's failure to object was not shown to lack a rational forensic basis or affect the outcome. The Exhibit 11 grounds failed because the trial judge's concern about the provenance and improper obtaining of the messages was proper, counsel was permitted to cross-examine on relevant topics, and counsel's decisions not to seek an earlier ruling or recall witnesses were open forensic decisions. Leave to appeal against sentence was granted but the...

Jurisdiction
Australia
Judgment Date
15 December 2023
Procedural Posture
Criminal Appeal Against Conviction and Sentence / Application for Leave to Appeal Against Conviction and Application for Leave to Appeal Against Sentence From the District Court of New South Wales
Outcome
Leave to appeal against conviction refused; conviction appeal dismissed; leave to appeal against sentence granted; sentence appeal dismissed.
Legal Topics
['domestic Violence Offences' 'admissibility of Text Messages' 'miscarriage of Justice' 'incompetence of Counsel' 'improperly Obtained Evidence' 'de Simoni Principle' 'objective Seriousness' 'manifest Excess' 'aggregate Sentence']
['criminal Law' 'criminal Appeals' 'evidence' 'sentencing' 'domestic and Personal Violence'] ['domestic Violence Offences' 'admissibility of Text Messages' 'miscarriage of Justice' 'incompetence of Counsel' 'improperly Obtained Evidence' 'de Simoni Principle' 'objective Seriousness' 'manifest Excess' 'aggregate Sentence']

Case Brief

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Procedural Posture

Criminal Appeal Against Conviction and Sentence / Application for Leave to Appeal Against Conviction and Application for Leave to Appeal Against Sentence From the District Court of New South Wales

Legal Issues

  1. 1 ["Whether Exhibit C, being text messages between the complainant and the applicant's sister, was wrongly admitted or caused a miscarriage of justice." "Whether trial counsel's failure to object to Exhibit C occasioned a miscarriage of justice." "Whether the handling and late admission of Exhibit 11, being messages obtained from the complainant's old phone, wrongly limited cross-examination or caused a miscarriage of justice." "Whether trial counsel's failure to seek an earlier ruling on Exhibit 11 occasioned a miscarriage of justice." 'Whether the sentencing judge sentenced for counts 3 and 11 on the basis of findings constituting a more serious offence contrary to the De Simoni principle.' 'Whether the sentencing judge erred in assessing the objective seriousness of count 34.' 'Whether the aggregate sentence was manifestly excessive.']

Ratio Decidendi

Leave to appeal against conviction was refused because Exhibit C was admissible and relevant to the credibility of the applicant's sister about the complaint made to her, its admission and use did not create unfair prejudice or miscarriage, and counsel's failure to object was not shown to lack a rational forensic basis or affect the outcome. The Exhibit 11 grounds failed because the trial judge's concern about the provenance and improper obtaining of the messages was proper, counsel was permitted to cross-examine on relevant topics, and counsel's decisions not to seek an earlier ruling or recall witnesses were open forensic decisions. Leave to appeal against sentence was granted but the...

Court Disposition

Leave to appeal against conviction refused; conviction appeal dismissed; leave to appeal against sentence granted; sentence appeal dismissed.

Orders

  • ['In relation to the conviction appeal: Leave is refused in relation to each of the grounds of appeal.' 'In relation to the conviction appeal: Dismiss the appeal.' 'In relation to the sentence appeal: Grant leave to appeal.' 'In relation to the sentence appeal: Dismiss the appeal.']