Moustafa v R

HEADNOTE [This headnote is not to be read as part of the judgment] The appellant was convicted of robbery armed with an offensive weapon. During the course of his trial, the appellant gave different versions of his instructions at different times to his lawyers. At trial, the appellant gave evidence that he was attacked by the complainant with a knife. This evidence was the subject of instructions given to his lawyers, for the first time, after the complainant had given evidence and the Crown had closed its case. During cross-examination, counsel for the Crown put to the appellant that he had invented this version of events. The issues on appeal were: (i) whether a miscarriage of justice was occasioned by the failure of trial counsel for the appellant to deal with an issue of recent invention; and (ii) whether a miscarriage of justice was occasioned by the failure of trial counsel for the appellant to seek a direction from the trial judge in the summing up concerning the Crown's allegation of recent invention evidence. In relation to issue (i), the Court, dismissing the appeal, held at [40]-[59]: The objective circumstances, based on an examination of the record of the trial, indicated that the appellant had a fair trial. The forensic choices of trial counsel, determined objectively, were not only rational, but compelling. The impugned conduct was capable of being rationally explained as a step not taken in the interests of the appellant because: (1) to recall a complainant who was argumentative and difficult would only have made the issue of recent invention central; (2) to invite the trial judge to give a direction about recent invention in circumstances where the issue had not been raised by her Honour would only have brought squarely to the jury's attention the issue of recent invention; and (3) to seek a discharge of the jury in circumstances where there was no basis for such an application was not an appropriate course for counsel to take. Ultimately, the appellant has not established that what occurred at the trial gave rise to a miscarriage of justice in the sense that the appellant lost a chance of acquittal that was fairly open. Alkhair v R [2016] NSWCCA 4; Nudd v The Queen [2006] HCA 9; 80 ALJR 614; Ali v R [2005] HCA 8; 79 ALJR 662; Matthews v R [2013] NSWCCA 187; TKWJ v R (2002) 212 CLR 124; [2002] HCA 46; Ahmu v R [2014] NSWCCA 312; Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22; Qing An v R [2007] NSWCCA 53 applied. In relation to issue (ii), the Court, refusing leave to appeal, held at [61]-[63]: It would have been foolish for trial counsel to have sought a direction from the trial judge in circumstances where her Honour had said nothing about any apparent change in the appellant's case, let alone anything touching upon a recent invention. To have persuaded the trial judge to give such a direction could only have brought squarely to the jury's attention a real problem with recent invention in the appellant's case.