Moustafa v R [2019] NSWCCA 89

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Moustafa v R [2019] NSWCCA 89 Hearing dates: 10 April 2019 Date of orders: 03 May 2019 Decision date: 03 May 2019 Before: Payne JA at [1]; Wilson J at [65]; Ierace J at [66] Decision: (1) Appeal dismissed on ground 1; (2) Leave to appeal under Rule 4 of the Criminal Appeal Rules (NSW) refused on ground 2. Catchwords: CRIME – conviction appeal – incompetence of counsel – alleged failure of counsel to recall the complainant – alleged failure of counsel to seek a direction from the trial judge about recent invention – alleged failure of counsel to seek a discharge of the jury – whether the forensic judgment of counsel was objectively rational – whether the appellant lost a chance of acquittal that was fairly open – where the appellant changed his instructions to counsel after the close of the Crown case Legislation Cited: Crimes Act 1900 (NSW), s 97 Criminal Appeal Rules (NSW), r 4 Evidence Act 1995 (NSW), ss 46, 65, 192 Cases Cited: Ahmu v R [2014] NSWCCA 312 Alkhair v R [2016] NSWCCA 4 Ali v R [2005] HCA 8; 79 ALJR 662 Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22 Matthews v R [2013] NSWCCA 187 Nudd v The Queen [2006] HCA 9; 80 ALJR 614 Qing An v R [2007] NSWCCA 53 TKWJ v R (2002) 212 CLR 124; [2002] HCA 46 Category: Principal judgment Parties: Ali Moustafa (Appellant) Regina (Respondent) Representation: Counsel: G D Wendler (Appellant) H Roberts (Respondent)