Author Talk PART 2 - Campsie Library 31 August 2011

The Least Used Part of the NSW Crimes Act 1900

Part 13A (formerly section 458) of the Crimes Act is headed 'Review of Convictions and Sentences'.

Prior to its repeal in 2006 this section allowed a prisoner to have his conviction and sentence or his sentence reviewed by a Justice of the Supreme Court.  Application for such a review effectively provided a further venue, a de-facto appeal if you will, after the prisoner had his appeal against conviction and sentence heard by the Court of Criminal Appeal.

A well prepared application would provide:

• Background summary of the prosecution evidence and any alleged errors as to the admissibility of that evidence before jury.  
• Any objections that may have been made by defense counsel on the questions of admissibility and the Presiding Judge or Justice rulings on the objections. 
• The relevant section of the Evidence Act and any decided cases in particular what the  High Court of Australia or the Court of Criminal Appeal had to say on the question.  
• The prosecutor opening address to the jury, summing up, paying special attention to comments made by the Judge or Justice.  

It is not infrequent to have prisoners who were represented by Legal Aid to complain that witnesses that they wanted called were not called and evidence they considered important to their defence was not brought before the jury or argued.  Explanations often given is that defence counsel did not consider the evidence to be relevant.  Despite that explanation, regardless of the seniority or experience of counsel giving it, most, if not all prisoners still wanted the jury and the judge to hear that piece of evidence or objection.
In cases where the prosecution places heavy reliance on warrants whether they be search warrants, surveillance, or listening devices special attention should be given to ensure that the evidence obtained and relied upon at the trial is obtained in strict compliance with the terms of the warrants.  One wouldn't be surprised to find evidence obtained by police, and for that matter highly prejudicial evidence, finding its way to the jury that was obtained illegally.  Illegally in that it was obtained outside the hours or the dates specified in the warrant.
Such evidence is inadmissible.
Applications for review making allegations of illegally obtained evidence will often result in a reviewing Justice recommending re-trial.
If the review is restricted to the question of severity of sentence, the reviewing Justice can refer the matter to the Court of Criminal Appeal with appropriate recommendations.

Let's examine the case of El Hani, a visitor to Australia on holiday, who found himself entangled in ecstasy importation syndicate, in which his host was involved knee deep.

Arrested with number of others, when police raided the premises, they charged him with two of the most serious breaches of the Customs Act.  Breaches that carry sentences to 25 years or life imprisonment.  After spending three years in goal, El Hani was advised by an inmate to enter guilty plea to the two charges.  The inmate alleged reason for the advice was that being a tourist and having served three years a Judge will send him back to his country.  El Hani's French wife and children wanted the best of the best counsel to represent him and tell the court about the great injustice committed against their loving husband and father.  They were given the name of a specialist criminal law lawyer who they instructed to find the best of the best counsel.  After retaining the best of the best to represent El Hani for a two days listed sentence hearing the worst possible and unforgivable legal error and misrepresentation that could happen in a guilty plea sentence hearing did happen.  

Murphy's Law had a field day - everything that could possibly go wrong went wrong.  

The best of the best senior counsel failed to have conference with El Hani and relied on what his instructing solicitor who had seen El Hani once for less than one hour told him. 

Instead of making simple plea and lead evidence from El Hani's wife and daughter he decided to call El Hani into the witness box.  

Having maintained his innocence of not having anything to do with the importation of the ecstacy shipment the Judge asked him that if what he is saying was correct why would he plead guilty to the most serious charges that could see him spend the rest of his life behind bars.  The best of the best senior counsel having decided to lead oral evidence from El Hani gave the legal right to the prosecution to cross examine El Hani.  

The cross examination developed into argument in which El Hani expressed his mind and frustrations with the Australian legal system.  

The Judge reached the conclusion that El Hani was the head of the ecstasy importation syndicate. 

He sentenced  El Hani to 20 years on one change and 25 years for the other charge.  

Both charges to be served concurrently. 

El Hani's wife and daughter paid the equivalent of $140,000 for this 'two day' turned into four days sentence hearing!

Application for review of El Hani sentence under Part 13A was made.

My book 'Customised Down Under' tells this tale. 

In Excerpt from Author Talk - Part 3 I will discuss wills, intestacy and the issue of testamentary capacity which is the subject matter of a real life story dealing with estate of some $30 million.  Two different legal systems, appeals, doctor reports and expert opinion.  
Compelling reading - The subject matter of my book - 'The Thumbprint Will'.