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Court of Criminal Appeal 21 September 2001

R v. ZREIKA

[2001] NSWCCA 373

Theft & property
CRIMINAL LAW APPEAL AGAINST CONVICTION POSSESSION OF RECENTLY STOLEN PROPERTY WHETHER DIRECTIONS ADEQUATE NO POINT TAKEN AT TRIAL

Citation: R v Zreika [2001] NSWCCA 373
Court: Court of Criminal Appeal, New South Wales
Date: 21 September 2001
Judge(s): Hodgson JA; Dowd J; Carruthers AJ

Background

The appellant was convicted in the District Court on four counts of receiving a motor vehicle knowing it was stolen. Each conviction arose from a similar pattern: the appellant purchased a written-off vehicle at auction, then shortly afterwards obtained registration for and sold a vehicle of the same colour, make and model. In each case, expert and identification evidence established that the vehicle sold by the appellant was the stolen vehicle, not the written-off one he had purchased.

The appellant's defence at trial was that he did not know the vehicles were stolen. He gave evidence that in each case a friend or associate had asked him to register and sell the vehicle on their behalf, and that he received only a modest commission for doing so. The jury acquitted him on the stealing charges but convicted him on the receiving charges in relation to all four vehicles.

The trial before Naughton DCJ lasted thirteen days. On appeal, the appellant challenged both the adequacy of the trial judge's directions and the fairness of certain remarks made during the summing up.

  • Whether the trial judge's directions to the jury were adequate in relation to the doctrine of recent possession, specifically whether the jury was properly directed on how to use explanations offered by the appellant in assessing his knowledge that the vehicles were stolen.
  • Whether remarks and opinions expressed by the trial judge during the summing up were unfairly prejudicial to the appellant.
  • Whether leave should be granted to rely on the ground concerning the trial judge's remarks, given that no objection had been taken to those remarks at the time of trial.

Decision

On the first ground, the Court considered whether the jury had been properly directed on the significance of the appellant's explanations. The appellant argued that the directions were inadequate because the judge did not sufficiently assist the jury in understanding how to treat his evidence of innocent explanation. The Court rejected this ground, finding that the directions given were adequate in the context of the trial as a whole and that the jury was properly equipped to assess the appellant's knowledge.

On the second ground, the appellant pointed to various remarks and expressions of opinion by the trial judge in the course of the summing up, which he characterised as unfairly prejudicial. Critically, no objection had been raised by trial counsel at the time those remarks were made. The Court noted that this was a significant obstacle to the ground succeeding on appeal.

The Court refused leave to rely on this ground. Carruthers AJ (with whom the other judges agreed on this point) observed that trial counsel bears a responsibility to raise concerns about judicial comments with the judge during the trial, so the matter can be addressed and if necessary corrected at the appropriate time. Complaints about judicial remarks extracted from a meticulous post-trial reading of the transcript, without objection having been taken at trial, were described as a form of "armchair appeal point" that the Court should approach with circumspection. No sufficient basis to grant leave was established.

Both the conviction appeal and the application for leave to appeal against sentence were dismissed.

Orders Made

  • Appeal against conviction dismissed.
  • Application for leave to appeal against sentence dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that directions on the doctrine of recent possession will be assessed in the context of the entire summing up, not in isolation.
  • Where a defendant offers an innocent explanation for possession of recently-stolen property, the adequacy of the judge's directions is judged by whether the jury was genuinely equipped to assess the defendant's knowledge, having regard to all of the evidence.
  • No objection taken at trial to the trial judge's remarks during summing up will ordinarily preclude leave to rely on that ground on appeal, absent exceptional circumstances.
  • Trial counsel is responsible for raising concerns about allegedly prejudicial judicial comments at the time they are made, allowing the trial judge to reconsider and if necessary correct them before the verdict.
  • In dismissing the application, the Court expressed concern about the frequency of "armchair appeal points" drawn from transcript review well after trial, describing this practice as one the appellate court should scrutinise carefully.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 154AA (stealing a motor vehicle)
- Crimes Act 1900 (NSW), s 188 (receiving and disposing of stolen property)

Cases:
- Jones v Dunkel (1959-60) 101 CLR 298 (cited by Carruthers AJ regarding the scope of a trial judge's summing-up function)