Hanna v R

1. [1]

   BASTEN JA: The applicant, Nazih Hanna, sought leave to appeal against a sentence imposed by Judge Colefax SC in the District Court on 1 July 2015. The only ground was that the sentence proceedings “miscarried due to the incompetence of counsel and, as a result, the sentence imposed was manifestly excessive.” The application for leave to appeal was filed on 29 September 2016. I agree with Harrison J that there should be a grant of leave, but that the appeal should be dismissed. But for one other matter, I would be content to adopt the reasons of Harrison J for those conclusions.

2. [2]

   The additional matter concerns the procedure adopted in this Court. The applicant swore an affidavit on 7 December 2016, apparently in support of his application. He also relied upon an affidavit affirmed by his solicitor, Mr Asem Taleb of Oxford Lawyers, dated 13 December 2016. Neither affidavit explained the delay in bringing the matter before this Court.

3. [3]

   On 16 February 2017 the Director obtained an affidavit from the barrister who had appeared for the applicant at the sentence proceedings, Mr Wilson Chan. That in turn resulted in a further affidavit from Mr Taleb, affirmed on 27 March 2017 (but filed on 13 April 2017) and a further affidavit affirmed by the applicant on 6 April 2017. Two further affidavits annexing additional material were filed by the Director on 26 June 2017. (One was directed solely to material which might be relevant if the Court were to resentence the applicant.)

4. [4]

   Both in written submissions and orally, the Director took objection to the affidavit material going to the ground of appeal on the basis that, in a case alleging incompetence of counsel as a ground of miscarriage of justice, what was required was an objective assessment of the conduct of the trial or sentence proceedings, and not an analysis of the subjective beliefs of the participants.

5. [5]

   Given that the objection would have taken some time to address (the material tendered being partly directed to the objective circumstances and partly to conversations and attitudes of the individuals) the evidence was admitted subject to the objection and on the basis that the witnesses would be called and cross-examined as required. That occurred.

6. [6]

   It is necessary to address the objection. In order to do so, it is convenient to characterise the complaints sought to be raised by the applicant, which have been fully articulated by Harrison J. The key elements may be reduced to the following categories:

   1. (1)

      Mr Chan was not briefed to appear except to make an application for an adjournment;

   2. (2)

      the applicant told Mr Chan that he wished to give evidence, but counsel declined to call him;

   3. (3)

      because the applicant was not called, the sentencing judge was required to proceed without any evidence of the applicant’s remorse or explanation of his conduct.

7. [7]

   In the unlikely case that counsel appeared without any instructions, evidence would no doubt be admissible to establish that fact. That was not in issue.

8. [8]

   If the question arose as to whether a permissible limitation had been imposed on the nature of counsel’s instructions, evidence might also be admissible to prove that fact. The suggestion was that counsel was briefed only to make an adjournment application. However, the brief from the solicitors contained no such limitation, express or implied.

9. [9]

   Having failed to obtain an adjournment, counsel’s instructions were withdrawn. Counsel acted on that basis, as the Court transcript revealed. There was no need for any other evidence to establish those facts.

10. [10]

    When, as the transcript also indicated, the judge said that he would proceed with the sentencing, counsel’s brief was reinstated. No evidence beyond the solicitor’s instructions and a transcript of the hearing was required to deal with this issue.

11. [11]

    The second matter concerned the proposition that the applicant wished to give evidence, but that counsel declined to call him. To allow evidence to be given as to a client’s instructions and proposals as to the conduct of the matter is to invite the court to assess the soundness of forensic judgments made by counsel in the course of the proceedings. As stated, epigrammatically, by Gleeson CJ in Nudd v The Queen: [1]

12. [12]

    As Gleeson CJ further stated: [2]

13. [13]

    There are few circumstances in which that statement is more apt than in relation to the decision to call the accused in criminal proceedings, even in circumstances where a plea of guilty has been entered. The evidence proffered by Mr Hanna in his first affidavit was that Mr Chan “told me not to give any evidence.” Mr Hanna said he wanted to give evidence but did not suggest that he proposed to withdraw his instructions if Mr Chan did not call him, nor did he suggest that he had said anything to his solicitor about withdrawing instructions in that event. A difference of opinion as to the strategic desirability of a forensic decision is not in itself any basis for identifying a miscarriage of justice. This evidence was, in my view, inadmissible.

14. [14]

    The third complaint was really a consequence of the second, namely that without calling the applicant, there was no evidence before the trial judge supporting contrition and remorse. There was no evidence to suggest that Mr Chan was incompetent in the sense that he did not appreciate that problem; in fact, the transcript revealed the contrary.

15. [15]

    Evidence tendered as to what the applicant had wished to say (in generic terms, without any detail) was inadmissible. The applicant’s statements in that regard apparently assumed that explanations as to his “drug habits” and “the reason why I committed the offence” were likely to assist him; that may or may not have been correct. He also said that he wanted to explain “all the problems that I have had in my life”; that statement must be understood in the context of offences before the Court for breaches of apprehended violence orders taken out against him by his own father.

16. [16]

    These last comments are not intended to express any view as to the effect of the evidence which he might have given (the substance of which is not known). Rather, it is to demonstrate the invidious nature of the exercise sought to be undertaken by the tender of this material.

17. [17]

    This Court has made similar comments about the limited scope for evidence on appeal in relation to a miscarriage of justice based on what has been described as “flagrant incompetence” of counsel. [3] Further, as noted by Beech-Jones J in Vella v R; Siskos v R [4] the concept of “flagrant incompetence” is “perhaps best understood as a reference to ‘conduct incapable of rational explanation on forensic grounds’.” There was no such conduct in the present case.

18. [18]

    In the circumstances, the evidence which was tendered subject to the objection, should be admitted, because it was relied upon by the parties and, in part, forms the basis for the reasoning for rejecting the appeal. Nevertheless, it should not be assumed that a pragmatic approach should or will be allowed, in future matters, to divert the court from upholding objections to evidence on the ground of irrelevance. Another course open to the court may be to limit or prohibit cross-examination on such material, if admitted.

19. [19]

    HARRISON J: Nazih Hanna appeals from a decision of his Honour Judge Colefax SC, when sentencing him on a charge of armed robbery. The single ground of appeal is that the sentencing proceedings miscarried by reason of the incompetence of counsel. Mr Hanna contends in the result that the sentence imposed by his Honour was manifestly excessive.

20. [20]

    Mr Hanna was sentenced for the principal offence on the indictment of armed robbery in breach of s 97(1) of the Crimes Act 1900 to a total term of 5 years and 4 months, after a 10 percent discount for the guilty plea, with a non-parole period of 4 years commencing on 7 November 2014 and expiring on 6 November 2018.

21. [21]

    Mr Hanna’s case in this Court is largely encapsulated at [43] of his written submissions as follows:

22. [22]

    For the reasons that follow I consider that leave to appeal should be granted but that the appeal should be dismissed.

Background

1. [23]

   On 20 January 2013, Mr Hanna was arrested and charged with committing an offence of armed robbery at the Metro Petroleum Petrol Station at Hurlstone Park contrary to s 97(1) of the Crimes Act. He was committed for trial from the Burwood Local Court on 3 June 2013. On 25 July 2013, Mr Hanna was arraigned before his Honour Judge Craigie at Parramatta District Court. He pleaded not guilty. The matter was eventually set down for trial to commence on 15 September 2014.

2. [24]

   Mr Hanna pleaded guilty on the first day of the trial. He was represented by Mr James of counsel. Judge Colefax adjourned the proceedings to 30 September 2014 to allow Mr Hanna to be assessed by Odyssey House. On 30 September 2014, Mr James again appeared for Mr Hanna and advised his Honour that Odyssey House were “short staffed” and that the assessment had not taken place. The matter was adjourned by consent to 8 October 2014. His Honour also ordered Mr Hanna to attend the assessment on the rescheduled date of 3 October 2014.

3. [25]

   On 8 October 2014, Mr James again appeared for Mr Hanna before Judge Colefax. Mr Hanna by then had confirmation of a placement at Odyssey House. Mr James indicated that Mr Hanna’s addiction was primarily heroin, with the use of ice also being a problem. His Honour noted that the facts for the offence seemed to have the “hallmarks” of a person who was on methylamphetamine rather than heroin. His Honour granted bail to allow Mr Hanna to undertake rehabilitation at Odyssey House. His Honour adjourned the proceedings for mention on 4 December 2014.

4. [26]

   On 31 October 2014, Mr Hanna’s proceedings came back before Judge Colefax for mention. Mr James appeared seeking to vacate the mention date of 4 December 2014 because Mr Hanna was in the detoxification program at Odyssey House, which was likely to last from six to seven weeks. Mr James, however, indicated that Mr Hanna would finish that program before 4 December 2014 and Judge Colefax declined to vacate the 4 December 2014 listing.

5. [27]

   On 14 November 2014, Mr Hanna’s matter was again listed for mention and came before his Honour Judge Knox for an application to vary bail. However, it then emerged that Mr Hanna had been arrested for fresh matters. Judge Knox therefore revoked Mr Hanna’s bail and confirmed the next mention date of 4 December 2014. On that day Judge Colefax fixed the sentence hearing for 13 April 2015 so as to enable the fresh matters to be dealt with at the same time.

6. [28]

   On 13 March 2015, Mr James appeared before Judge Sides seeking to vacate the sentence date of 13 April 2015 so the fresh matters could be committed for sentence and dealt with at the same time. His Honour vacated the sentence hearing on 13 April 2015 but retained the listing on that day for mention only.

7. [29]

   On 13 April 2015, Mr James appeared before his Honour Judge Bennett. The Court was advised that the fresh matters would be linked to the armed robbery sentence proceedings. The fresh matters were still in the Local Court at that time. The matter was stood over for mention to 23 April 2015, effectively to see whether the fresh matters were being committed for sentence by that date.

8. [30]

   On 23 April 2015, Judge Bennett stood all matters over for sentence to 1 July 2015. That date was chosen to suit the convenience of Mr James.

Mr Hanna’s complaints about Mr Chan

1. [31]

   On 1 July 2015, Mr Chan of counsel appeared for Mr Hanna, initially before Judge Sides and ultimately before Judge Colefax. He was briefed to do so on the evening of 30 June 2015. An email to him at 6.30pm on that day from Mr Zemarai Khatiz of Oxford Lawyers is in the following terms:

2. [32]

   Mr Hanna complains in this Court about Mr Chan on several bases. Some of them are repetitive, as appears below.

3. [33]

   First, Mr Chan made an application for an adjournment on the basis that there was no psychological report and that one was “necessary”. He informed Judge Sides that his instructions were that “the client had changed lawyers and come back and that was part of the delay”. Mr Hanna contends that that was not correct. Mr James had been briefed to appear on behalf of Mr Hanna at least since before listing for trial in September 2014. Mr James appeared on all but five of the listings before the District Court following the committal from Burwood Local Court.

4. [34]

   Secondly, Mr Chan informed Judge Sides that the psychologist had only been approached in June 2015 to do the report. He did not seek to obtain detailed instructions from Oxford Lawyers to explain to the Court why this was the case.

5. [35]

   Thirdly, at no time did Mr Chan inform Judge Sides, in making the application for the adjournment, that he was not briefed to appear on the sentence proceedings, that he did not know anything about the sentence matter, or that the only reason he was there on that day was because Mr James (who had by then been briefed to appear in the matter for at least nine months) had taken ill and could not appear that day. Mr Hanna asserts that if Mr Chan had advised Judge Sides of these matters, his Honour would have been better placed to assess whether a miscarriage of justice would be occasioned to Mr Hanna if the sentence proceedings were not adjourned. Judge Sides instead refused the adjournment, on what Mr Hanna alleges was the very limited and inaccurate information that Mr Chan provided him, and sent the matter to Judge Colefax for the sentence proceedings to be heard.

6. [36]

   Fourthly, when Mr Chan appeared before Judge Colefax later that morning, the Crown asked for the proceedings to be stood in the list as the Crown had only just been briefed. At this time, Mr Chan did not bring to the Court’s attention the fact that he was not briefed to appear on the sentence proceedings or that he had no knowledge of the matter.

7. [37]

   Fifthly, after a “short adjournment” to accommodate the Crown, it presented its case against Mr Hanna. After taking the Crown bundle, Judge Colefax asked Mr Chan if he objected to any of it. Mr Chan’s response was, “Your Honour, a matter has arisen just now … if I could just take the opportunity while your Honour goes off the bench to confirm with my client what the position is”. Mr Hanna alleges that at this stage, Mr Chan misled the Court by:

   1. (1)

      failing to tell Judge Colefax that the difficulty had not only just arisen, but that Mr Chan knew very little about the matter and was not briefed to appear on the sentence; and

   2. (2)

      failing to tell either Judge Colefax, or Judge Sides on the earlier application for the adjournment, that Mr James was always briefed to appear on the sentence proceedings, that Mr James was not at Court because he had taken ill, and that Mr Chan was only ever briefed to appear on the adjournment application.

8. [38]

   Sixthly, when Judge Colefax returned to court after reading the papers, Mr Chan said, “Your Honour, I can indicate that myself and my instructing solicitor now no longer hold instructions for Mr Hanna and as such, have to withdraw from the matter”. Mr Hanna contends that by saying that Mr Chan misled Judge Colefax. Mr Hanna insists that Mr Chan was never instructed to appear on the sentence proceedings and that Mr Hanna did not withdraw his instructions from Oxford Lawyers. Mr Hanna’s instructions were that he did not want Mr Chan appearing for him because he did not know much about his matter and Mr James was supposed to appear on his behalf.

9. [39]

   Seventhly, when Judge Colefax refused Mr Chan’s second application for the adjournment to obtain a psychological report, Mr Chan again asked his Honour to grant the application for an adjournment “so [Mr Hanna] can retain Mr James of counsel”. Mr Hanna contends that Mr Chan misled his Honour in saying this and in failing to indicate that he was not briefed to appear on the sentence proceedings, that he did not have sufficient knowledge about the matter to do so, and that he had been asked by Mr James only to appear to ask for an adjournment. As a result, Judge Colefax was not provided with sufficient information to determine whether there would be a miscarriage of justice to Mr Hanna if the sentence proceedings were not adjourned.

10. [40]

    Eighthly, after Judge Colefax refused Mr Chan’s second application for an adjournment, Mr Chan sought instructions from Mr Hanna and informed the Court that, “I’ve just talked to Mr Hanna. I’ve sought some instructions and my instructing solicitor informs me that we are still in the matter now”. Mr Chan did not advise the Court at this stage that he was never “in the matter” as far as the sentence proceedings were concerned and that he did not know anything about it.

11. [41]

    Ninthly, Mr Hanna alleges that it is apparent from the transcript of the sentence proceedings that Mr Chan had not read the Crown bundle. Mr Chan stated, “… Mr Hanna is not giving evidence. Sorry, if I could just reserve that position. I’ve been given a bundle just now, if I would have a look through that material”. Having said this, Mr Chan did not inform Judge Colefax that he had never been briefed to appear in the sentence proceedings or that he had no knowledge of Mr Hanna’s matter. Mr Hanna contends that it is apparent from the transcript of the whole of the sentence proceedings that Mr Chan was not prepared at all and made very limited oral submissions.

12. [42]

    Finally, Mr Hanna complains that he wanted to give evidence in the sentencing proceedings but was told by Mr Chan that he should not do so.

Disposition

1. [43]

   Mr Hanna’s complaints contain the central and reoccurring assertion that Mr Chan had been briefed on the limited basis that he was to apply for an adjournment and that he was not briefed to appear on the sentence proceedings if the adjournment were not granted. I do not accept that contention.

2. [44]

   In the first place, Mr Chan’s instructions were encapsulated in the opening sentence of the email to him on 30 June 2015. Mr Khatiz thanked him for accepting “to appear tomorrow”. The later reference in the email to the fact that Mr Chan was in effect instructed to seek an adjournment in order to have Mr Hanna assessed by Dr Borenstein does not alter my view about that. If it were otherwise, Mr Taleb or some other solicitor from Oxford Lawyers, could have made the application. Indeed, Mr Hanna had been represented by solicitors alone several times leading up to the sentencing hearing. It is clear that Mr Chan was retained against the not insignificant prospect or possibility that the adjournment might be refused.

3. [45]

   In the second place, and to like effect, it is clear from the material provided to Mr Chan as his brief that he was being retained to represent Mr Hanna on the sentencing proceedings and not merely upon the adjournment application. Indeed, Mr Chan was briefed with some 80 pages of material that made up the Crown brief. That material included, among other things, Mr Hanna’s 18 page criminal history and the Facts Sheets that related to the charge. It is difficult to understand why that would have been provided to Mr Chan if his instructions were as limited as Mr Hanna now contends. It is not in contest that, apart from the brief email on 30 June 2015, Mr Chan was not provided with any observations on brief or with any other form of written instructions. I am satisfied that nothing provided to Mr Chan in writing, either in terms or by necessary implication, restricted or limited the scope of his retainer to appearing on an adjournment application.

4. [46]

   In the third place, even accepting that there was disagreement between Mr Hanna and Mr Chan about whether or not Mr Hanna should give evidence, Mr Hanna in fact took Mr Chan’s advice not to do so. For example, Mr Hanna said the following things in his affidavit affirmed on 7 December 2016 and relied upon by him in this Court:

5. [47]

   Additionally, in his later affidavit affirmed on 6 April 2017 and read in this Court, Mr Hanna said the following:

6. [48]

   It is not in my opinion without significance that Mr Hanna concedes that Mr Chan’s advice that he should not give evidence apparently emanated from, or was endorsed by, Mr James, who was Mr Hanna’s preferred and trusted representative. It is not open to Mr Hanna now to complain that he only begrudgingly accepted Mr Chan’s advice.

7. [49]

   In the fourth place, and possibly most significantly, Mr Hanna in fact agreed to Mr Chan representing him fully on the sentencing proceedings. I accept once again that Mr Chan may not have been Mr Hanna’s first choice of counsel, and in the same context that his preference was that Mr James should appear for him. However, in the circumstances that prevailed at the time, and faced with the realisation that the matter was in fact going to be heard on that day, Mr Hanna agreed to Mr Chan representing him. He said this in his 6 April 2017 affidavit:

8. [50]

   One might speculate about the reasons why Mr Hanna either had, or at least felt that he had, no choice than to proceed with Mr Chan representing him. That issue is in fact largely co-extensive with the likelihood that Mr Hanna was ever going to be granted an adjournment because Mr Borenstein had not provided an updated or recent report concerning his current psychological state. There is contested evidence in this Court concerning the reason why the preparation of a report by Dr Borenstein had not been arranged in a timely way in order that it could have been available for use on 1 July 2015. It is presently unnecessary to resolve that issue. That is because it was properly aired before Judge Sides and in my view uncontroversially disposed of by his Honour, as the following extract from the transcript of the proceedings before him on 1 July 2015 adequately reveals:

9. [51]

   Far from it being the case that Mr Chan somehow failed to secure an adjournment because he did not comply with his instructions or that he failed to present the application in a competent fashion, Mr Chan was on the contrary placed in the invidious, and in my view hopeless, position of being required to apply for an adjournment that was never likely to have been granted. I am doubtful that any other judicial officer in the same position would have granted the application based upon the need to have Mr Hanna examined by Mr Borenstein when Mr Chan was given no material at all that explained why Mr Hanna’s solicitors had not obtained the outstanding report from him well in advance of the sentencing hearing. Mr Chan’s indication to Judge Sides, that Dr Borenstein was approached for a report “in June”, is pregnant with ambiguity, and significantly for present purposes is not criticised by Mr Hanna in this Court as an inaccurate statement of fact. The fault for not approaching Dr Borenstein before “June” was not that of Mr Chan and the blame for not obtaining the adjournment in the circumstances cannot be laid at Mr Chan’s feet.

10. [52]

    I am also entirely unable to accept Mr Hanna’s complaint that somehow Mr Chan was at fault for not obtaining detailed instructions from Oxford Lawyers to explain to the Court why Dr Borenstein had not been approached earlier than June 2015. Indeed, the evidence in this Court does not suggest that any proper or satisfactory explanation for this delay was available. The only evidence on this issue comes from Mr Hanna’s solicitor Mr Taleb, whose affidavit affirmed on 27 March 2017 was read in this Court. Mr Taleb said only that he informed Mr Chan “that the psychologist had been on leave and was unavailable to see Mr Hanna until the following month.” Significantly in my opinion, the letter from Dr Borenstein’s rooms, advising of his availability, is dated 30 June 2015, and was faxed to Oxford Lawyers at 2.02pm on that day. The letter speaks only about Dr Borenstein’s future availability during and after July 2015 and therefore says nothing at all about the relevant period, being his availability in the months preceding the hearing. The fact that the letter from Dr Borenstein is dated only the day before the hearing also clearly explains why Mr Chan informed Judge Colefax merely that Dr Borenstein had been approached “in June”. I am confidently prepared to infer both that Dr Borenstein was not approached for his availability until 30 June 2015, or only shortly beforehand at the earliest, and that Mr Taleb was acutely aware of the obvious disadvantages of Judge Colefax being informed of that troublesome detail.

11. [53]

    Nor in my view can Mr Hanna find any support for his complaints from the way in which the matter actually proceeded before Judge Colefax. Part of the transcript of the proceedings before his Honour is as follows:

12. [54]

    The events on 1 July 2015 are in my experience neither unusual nor exceptional. I exclude from that assessment the specific fact that Mr Hanna was not referred to a medical expert of his choice in sufficient time to have a report available for use in his sentencing proceedings. The single ground of appeal in this Court directs attention to the conduct of Mr Chan on 1 July 2015. He was briefed late. He was not provided with comprehensive or indeed any observations by his instructing solicitors. He had little worthwhile material to support his adjournment application. He was also not in any event personally concerned with the anterior failure of Mr Hanna’s solicitors to qualify Dr Borenstein in time for the hearing, which in my view was clearly the principal underlying cause for the adjournment being refused.

13. [55]

    Mr Hanna has referred to the judgment of Beech-Jones J in John Wayne Tsiakis v R [2015] NSWCCA 187 at [42]-[45]. I am not satisfied that there has been a material irregularity in Mr Hanna’s trial or that there is the possibility, let alone the significant possibility, that the acts or omissions of which complaint is made have affected the outcome of the sentencing proceedings before either Judge Sides or Judge Colefax. This is not a case in which compelling material was available but not tendered, or in which the significance of any such material was not appreciated. I am not satisfied that the court below was required to proceed, in the events that occurred, upon the basis of incomplete information. I am not satisfied that the sentencing proceedings miscarried due to the incompetence of Mr Chan or that, as a result, the sentence imposed upon Mr Hanna by Judge Colefax was manifestly excessive.

Orders

1. [56]

   In my opinion, the following orders should be made:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Dismiss the appeal.

2. [57]

   SCHMIDT J: I agree with Harrison J.