Citation: R v Mohamed Zreika [2001] NSWCCA 57
Court: NSW Court of Criminal Appeal
Date: 5 March 2001
Judge(s): Spigelman CJ, Sperling J, Carruthers AJ
Background
The appellant was convicted in the District Court of deemed supply of heroin after a quantity of the drug was found during a police raid on a home unit he leased in Yagoona. The Crown case rested primarily on his position as lessee and occupant, supported by documents in his name found at the premises.
The appellant gave evidence denying knowledge of the drugs. He said he had been living with his wife at another address for several days before the raid, and that his brother and nephew held keys to the unit and had access to it. He also suggested the drugs may have been planted by police, pointing to the fact that the video record of the search began 25 minutes after it commenced and no independent observer was present.
The trial judge directed the jury in accordance with the principle in Jones v Dunkel, instructing them that because the brother and nephew were not called as witnesses, the jury could infer their evidence would not have assisted the appellant's case. The direction was given without any qualification or further explanation. The appellant appealed against both conviction and sentence.
Legal Issues
- Whether the trial judge erred in giving a Jones v Dunkel direction against the accused in relation to the uncalled brother and nephew
- Whether, if such a direction was to be given, the jury needed to be informed of the possible explanations for those witnesses not being called (including the privilege against self-incrimination)
- Whether the unqualified direction gave rise to a miscarriage of justice
Decision
The Court found the unqualified Jones v Dunkel direction was erroneous and constituted a miscarriage of justice. Sperling J, with whom Spigelman CJ and Carruthers AJ agreed, held that where an absent witness could only have given helpful evidence by admitting their own presence at premises where a large cache of illegal drugs was found, that witness would have been entitled to claim privilege against self-incrimination. At a minimum, the jury should have been told of this complication before being invited to draw any adverse inference from the witnesses' absence.
The Court also identified further considerations that ought to have been put to the jury. These included the possibility that the absent witnesses, if called, might have chosen to lie rather than incriminate themselves, and that the appellant may have anticipated this. Other explanations, such as threats or fear of retaliation, could equally have explained the failure to call them, and these might have been reasons the appellant felt unable to disclose openly.
Sperling J expressed doubt that it would ever be appropriate to give a Jones v Dunkel direction against an accused in relation to witnesses who were themselves under suspicion on either the Crown case or the accused's own account. As the absent witnesses were either criminally complicit with the appellant (on the Crown case) or persons who had deceived him (on his own account), any suggestion that he should have called them was, at minimum, seriously confusing. The direction as given carried unwarranted judicial authority and stood without necessary qualification.
Because there was a serious possibility the unqualified direction affected the jury's verdict, the proviso to section 6 of the Criminal Appeal Act 1912 did not apply. The Court allowed the appeal and quashed the conviction.
Orders Made
- Appeal allowed
- Conviction quashed
- New trial ordered
Key Takeaways
- A Jones v Dunkel direction given in a criminal trial against an accused must not stand alone where absent witnesses were themselves open to suspicion; the direction requires careful qualification.
- Where an absent witness could only have given helpful evidence by admitting involvement in criminal conduct, the jury must be informed of that witness's right to claim privilege against self-incrimination before any adverse inference is invited.
- The Court of Criminal Appeal expressed doubt that a Jones v Dunkel direction will ever be appropriate against an accused where the uncalled witnesses are, on either version of events, potentially implicated in the offence.
- Additional matters the jury should have considered include whether the absent witnesses might have lied if called, whether the appellant may have anticipated this, and whether there were other explanations (such as threats or fear of retaliation) for not calling those witnesses.
- An unqualified Jones v Dunkel direction in circumstances such as these constitutes a miscarriage of justice, precluding application of the proviso under section 6 of the Criminal Appeal Act 1912.
Legislation and Cases Referenced
Legislation
- Criminal Appeal Act 1912 (NSW), s 6
- Supreme Court Rules, r 4
Cases
- Jones v Dunkel (1959) 101 CLR 298
- Buckland (1977) 2 NSWLR 452
- Taufua [1999] NSWCCA 205
- Scott [2000] NSWCCA 187; (1999) 112 A Crim R 543