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Court of Criminal Appeal 18 March 2002

Regina v Karki

[2002] NSWCCA 67

Homicide
CRIMINAL LAW APPEALS APPEAL AGAINST CONVICTION

Citation: Regina v Karki [2002] NSWCCA 67
Court: NSW Court of Criminal Appeal
Date: 18 March 2002
Judge(s): Beazley JA; Hulme J; Barr J

Background

The appellant was convicted of murder in the Supreme Court following a group attack in which the deceased was kicked and stomped on the head. Neither the appellant nor his co-accused gave evidence at trial. The trial judge sentenced the appellant to a minimum term of 12 years.

The trial judge directed the jury that the accused's silence was relevant only to the "value or weight" of the Crown witnesses' evidence. This direction was the same one that had already been held erroneous on the co-accused's separate appeal.

The appellant argued the conviction should be quashed. The Crown accepted the direction was wrong but sought to apply the statutory proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW), which allows a conviction to stand where no substantial miscarriage of justice has actually occurred.

  • Whether the trial judge's direction about the accused's failure to give evidence was wrong in law.
  • Whether the misdirection was so fundamental that the proceedings barely constituted a trial at all, making the proviso unavailable.
  • Whether, even accepting the proviso could apply, the appellant's conviction was inevitable on the evidence, such that he lost no real chance of acquittal.
  • Whether the defences of provocation and self-defence could have succeeded on the evidence.

Decision

All three judges agreed that the direction was wrong in law, consistent with the High Court's rulings in RPS v R and Azzopardi v R, and with the earlier decision on the co-accused Giri's appeal. The Crown conceded the point.

On the question of whether the misdirection was so fundamental as to render the proceedings barely a trial at all, Beazley JA (with Hulme and Barr JJ agreeing on this point) held that it was not. The misdirection occurred within a trial that otherwise proceeded properly, and an erroneous direction on silence does not automatically constitute a fundamental irregularity of that kind.

The majority (Beazley JA and Barr J) then applied the proviso, holding that the conviction was inevitable. The Crown witnesses gave overwhelmingly consistent evidence about the appellant's central role in the attack. The defences of provocation and self-defence could not have been made out on the evidence, and the severe nature of the kicking and stomping demonstrated that the appellant intended to cause grievous bodily harm.

Hulme J dissented on the inevitability question. His Honour agreed that provocation and self-defence were unavailable, but concluded that an intent to cause grievous bodily harm could not be treated as an inevitable inference from the circumstances. In his Honour's view, the evidence about who did the stomping was imprecise, the difference between an intent to harm and an intent to cause grievous bodily harm is significant, and people acting in the heat of a fight do not necessarily form specific intent. Hulme J would have allowed the appeal and ordered a new trial.

Orders Made

  • Appeal dismissed (by majority: Beazley JA and Barr J; Hulme J dissenting).

Key Takeaways

  • An erroneous direction telling the jury that an accused's silence was relevant only to the weight of Crown evidence is wrong in law, as confirmed by RPS v R and Azzopardi v R.
  • Not every misdirection about an accused's right to silence constitutes a fundamental irregularity that renders the trial proceedings so defective as to be barely a trial at all; each case turns on its own circumstances.
  • Under s 6(1) of the Criminal Appeal Act 1912 (NSW), the proviso will not be applied where the accused may have lost a real chance of acquittal, but it can be applied where a reasonable jury would inevitably have convicted.
  • A significant difference of opinion emerged within the Court about whether an intent to cause grievous bodily harm can be treated as an inevitable inference from kicking and stomping in the course of a group attack, illustrating how closely contested the "inevitable conviction" question can be.
  • Where the same misdirection occurred at the trial of a co-accused, the resolution of that co-accused's earlier appeal provides a directly applicable framework for analysing both the proviso's availability and the gravity of the error.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 6(1)

Cases
- RPS v R (2000) 199 CLR 620
- Azzopardi v R (2001) 75 ALJR 931
- R v Giri [2001] NSWCCA 197
- R v Storey (1978) 140 CLR 364
- Wilde v R (1988) 164 CLR 365
- Glennon v R (1994) 68 ALJR 209
- R v Bozzola [2001] NSWCCA 8
- Stingel v R (1990) 171 CLR 312
- Masciantonio v R (1995) 183 CLR 58
- R v Green (1997) 191 CLR 334
- Zecevic v DPP (1987) 162 CLR 645