Nader v R [2018] NSWCCA 256

Nader v R [2018] NSWCCA 256

No miscarriage of justice has been demonstrated as the decisions taken by the applicant’s counsel were deliberate, forensic choices intended to maximise the applicant’s prospects and, even if the trial had been conducted separately, there is no reasonable possibility the applicant would have achieved a more favourable outcome. The sentencing judge erred by not taking pre-sentence custody into account, requiring backdating of sentence commencement.

Parties
Applicant: Moses Nader; Respondent: Crown
Jurisdiction
Australia
Judgment Date
14 November 2018
Procedural Posture
Criminal Appeal / Court of Criminal Appeal, Post Conviction and Sentence
Outcome
Appeal against conviction dismissed; appeal against sentence allowed
Legal Topics
Appeal Against Conviction, Appeal Against Sentence, Joint Trials, Procedural Fairness, Sentencing – Pre Sentence Custody
Criminal Law Appeal Against Conviction Appeal Against Sentence Joint Trials Procedural Fairness Sentencing – Pre Sentence Custody

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Parties

Moses Nader

Applicant

Crown

Respondent

Procedural Posture

Criminal Appeal / Court of Criminal Appeal, Post Conviction and Sentence

Legal Issues

  1. 1 Whether the sentencing judge failed to take into account pre-sentence custody when sentencing the applicant
  2. 2 Whether the conduct of the co-accused's defence caused unfairness to the applicant amounting to miscarriage of justice

Ratio Decidendi

No miscarriage of justice has been demonstrated as the decisions taken by the applicant’s counsel were deliberate, forensic choices intended to maximise the applicant’s prospects and, even if the trial had been conducted separately, there is no reasonable possibility the applicant would have achieved a more favourable outcome. The sentencing judge erred by not taking pre-sentence custody into account, requiring backdating of sentence commencement.

Court Disposition

Appeal against conviction dismissed; appeal against sentence allowed

Orders

  • Leave to appeal against conviction allowed
  • Conviction appeal dismissed