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Court of Criminal Appeal 10 May 1999

R v R Salama

[1999] NSWCCA 105

Firearms & weapons
CRIMINAL PRACTICE & PROCEDURE INCONSISTENT VERDICTS WARNING TO JURY

Citation: R v R Salama [1999] NSWCCA 105
Court: NSW Court of Criminal Appeal
Date: 10 May 1999
Judges: Wood CJ at CL, Ireland J, Kirby J

Background

The appellant, a medical practitioner, was charged following an incident in the early hours of 19 September 1996, in which his wife sustained a bullet wound to the head at their Collaroy home. The prosecution alleged he had maliciously discharged a firearm with intent to cause grievous bodily harm. An alternative charge alleged he had fired a firearm with disregard for the safety of his wife.

The appellant's account was that he had been woken by a noise consistent with an intruder forcing open a window or sliding door. He retrieved a .22 rifle and went upstairs to check on his wife. In the darkness, he tripped while navigating around her bed, causing the rifle to discharge accidentally. The couple's history included several frightening intruder incidents over the preceding decades, which the appellant and family members said had made them acutely fearful of break-ins.

At trial before Shillington DCJ in the District Court, the jury acquitted the appellant on the more serious intent-based charge but convicted him on the alternative count. He was sentenced to two years' periodic detention. He appealed against both conviction and sentence.

  • Whether the jury's verdicts were logically inconsistent, given the acquittal on the intent-based charge and the conviction on the alternative
  • Whether the trial judge erred in failing to answer a question from the jury before they returned their verdict
  • Whether the trial judge gave an improper warning to the jury directing them to scrutinise the appellant's account closely because of his personal interest in the outcome of the case

Decision

The Court of Criminal Appeal found that the verdicts were not necessarily inconsistent and rejected that ground of appeal. The jury was entitled to accept the prosecution's case on the lesser charge while remaining unpersuaded of the specific intent required for the first count.

On the question left unanswered by the trial judge, the Court found procedural concern but did not ultimately decide the appeal on that basis alone.

The decisive ground was the warning the trial judge gave to the jury under section 165 of the Evidence Act 1995. The trial judge directed the jury to scrutinise the appellant's out-of-court statements with particular care because of his personal interest in the outcome. Kirby J, with whom Wood CJ at CL and Ireland J agreed, held that this direction was wrong in principle. Citing the High Court's reasoning in Robinson v R and Jones v R, the Court held that directing a jury to treat an accused's account as suspect because of their interest in the outcome undermines the presumption of innocence. While a trial judge may remind a jury of general principles for assessing witness credibility, singling out the accused's interest as a reason for heightened scepticism goes too far and denies the accused a fair trial.

The Court noted that the jury could not have failed to apply the warning about the appellant's statements to the evidence he gave in court, where he repeated the same account. The impermissible direction tainted the conviction and a new trial was warranted on that ground. The Court went further, however, and entered a verdict of acquittal rather than ordering a retrial.

Orders Made

  • The verdict on the alternative count was set aside
  • The conviction was quashed
  • A verdict of acquittal was entered

Key Takeaways

  • Directing a jury to scrutinise an accused's account with heightened suspicion because of the accused's personal interest in the outcome is a misdirection that undermines the presumption of innocence.
  • A general reminder about assessing witness credibility is permissible, but a warning that singles out the accused's interest as making their account suspect is not, except in the most exceptional circumstances.
  • Acquittal on a charge requiring specific intent does not automatically render a conviction on an alternative lesser charge logically inconsistent; the two verdicts may be reconciled where the intent element distinguishes the offences.
  • Where a misdirection is serious enough to have affected the jury's deliberations, the Court of Criminal Appeal may enter a verdict of acquittal rather than ordering a retrial.
  • Under section 165 of the Evidence Act 1995, any warning about the reliability of evidence must be framed with care, particularly where it touches on the accused's own account of events.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33A, 93G(1)(c)
- Evidence Act 1995 (NSW), s 165
- Jury Act 1977 (NSW), s 55E

Cases
- Peacock v R (1912) 13 CLR 619
- Mackenzie v R (1996) 71 ALJR 91
- R v Crisologo (NSW CCA, unreported, 12 December 1997)
- Jones v R (1997) 191 CLR 439
- Mourani v Jeldi Manufacturing Pty Ltd (1983) 53 ALJR 825
- Lee v R (1998) 72 ALJR 1484
- Ratten v R [1972] AC 378
- Robinson v R (1991) 55 A Crim R 318