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Court of Criminal Appeal 27 March 2001

Regina v T Ibrahim

[2001] NSWCCA 72

Theft & propertyPublic order & justice offences
CRIMINAL PRACTICE & PROCEDURE EFFECT OF ACQUITTAL ON SOME COUNTS APPROPRIATE DIRECTION

Citation: Regina v T Ibrahim [2001] NSWCCA 72
Court: NSW Court of Criminal Appeal
Date: 27 March 2001
Judge(s): Priestley JA, Kirby J, Howie J

Background

The appellant was charged with four offences alleged to have occurred on 11 March 1998: stealing a motor vehicle (Count 1) and three bag-snatching robberies at Fairfield, Canley Vale, and Liverpool (Counts 2, 3, and 4). The Crown alleged that the appellant drove a stolen vehicle while an unidentified companion snatched bags from women at successive shopping centres across south-western Sydney over approximately half an hour.

The appellant was arrested at the wheel of the stolen vehicle shortly after the final alleged robbery. He admitted lying to police about whether he had been driving, but gave evidence that he had innocently agreed to drive a drug-affected acquaintance and was coerced into remaining behind the wheel after the first robbery.

During the trial before Payne DCJ in the District Court, her Honour directed verdicts of not guilty on Counts 3 and 4. The trial continued on Counts 1 and 2, and the jury convicted on both. The appellant challenged those convictions on two grounds: that trial counsel should have sought a discharge of the jury after the directed acquittals, and that the convictions were unreasonable and unsupported by the evidence.

  • Whether trial counsel's failure to apply for a jury discharge, following directed acquittals on two of four counts in a joint enterprise indictment, constituted a miscarriage of justice.
  • What direction a trial judge must give a jury when acquittals by direction have been entered on some counts in a joint enterprise case, and that direction was not given here.
  • Whether the evidence on Counts 1 and 2 was sufficient, standing alone after the directed acquittals, to support the convictions.
  • Whether evidence relating to the counts on which the appellant was acquitted remained admissible in the continued trial.

Decision

The Court of Criminal Appeal allowed the appeal on the first ground. After directed acquittals were entered on Counts 3 and 4, the jury was not given any direction explaining that those counts had been removed and that the evidence referable to them could not be used to support a conviction on the remaining counts. Without such a direction, the jury may have used the acquitted-counts evidence as part of a rolling joint enterprise narrative that no longer legitimately applied to the case before them.

Trial counsel's failure to seek a discharge, or at minimum to request an appropriate curative direction, was found to constitute a miscarriage of justice. The Court held that where counts are removed mid-trial in a joint enterprise case, proper direction is essential to ensure the jury confines its reasoning to the evidence properly relevant to the surviving counts.

On the second ground, the Court rejected the argument that the evidence was incapable of supporting the convictions on Counts 1 and 2. Kirby J identified three bases from which the jury could infer the appellant's complicity: his presence as driver at the point of arrest; his own admission that he had been driving for approximately twenty minutes before arrest; and evidence of the driver's active role at the Fairfield scene, including slowing the vehicle, remaining nearby while the robbery occurred, and opening the passenger door for the bag-snatcher to re-enter. The evidentiary sufficiency finding meant a retrial, rather than an acquittal, was the appropriate remedy.

Orders Made

  • Appeal allowed.
  • Convictions on Counts 1 and 2 set aside.
  • New trial ordered in respect of Counts 1 and 2.

Key Takeaways

  • Where a trial judge directs acquittals on some counts in a joint enterprise indictment mid-trial, the remaining jury must receive a clear direction limiting its use of the evidence associated with those acquitted counts.
  • A failure by trial counsel to seek either a discharge or an appropriate curative direction in these circumstances can constitute a miscarriage of justice sufficient to set aside convictions on the surviving counts.
  • The Court of Criminal Appeal confirmed that directed acquittals on some counts do not automatically render a conviction on related counts unreasonable, provided sufficient independent evidence supports those remaining counts.
  • Sufficient evidence existed here to sustain the vehicle theft and Fairfield robbery counts on their own, based on the appellant's admitted driving, the timing of his arrest, and eyewitness observations of the driver's active facilitation of the snatch.
  • Setting aside convictions did not automatically entitle the appellant to acquittal: where the evidence could have supported conviction had the jury been properly directed, ordering a new trial is the appropriate remedy.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 94, 95, 154A(1)(a)

Cases:
- R v Birks (1990) 19 NSWLR 677
- Garrett v The Queen (1977) 139 CLR 437
- The Queen v Storey (1987) 140 CLR 364
- Gilbert v The Queen [2000] HCA 15
- R v Brogacki (1973) 1 QB 832