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21
Court of Criminal Appeal 27 February 2004

R v El-Hayek

[2004] NSWCCA 25

Also reported as (2004) 144 A Crim R 90
Sexual offencesAssault & violenceDrugsTheft & propertyFirearms & weapons
CRIMINAL LAW AND PROCEDURE SEPARATE TRIALS FAILURE TO DISCHARGE JURY SUMMING UP

Citation: El-Hayek v R [2004] NSWCCA 25
Court: NSW Court of Criminal Appeal
Date: 27 February 2004
Judge(s): Hodgson JA, Grove J, Howie J (Howie J delivered the principal judgment)

Background

The appellant was tried jointly in the District Court with two co-accused on an indictment containing six counts arising from a series of events in late July 2000. The charges included armed robbery, demanding money with menaces, sexual intercourse with a 15-year-old, and drug supply. The incidents unfolded after two groups of young people travelled together to a park in Parramatta, where the appellant and his co-accused arrived by arrangement and confronted the group with firearms.

The jury returned guilty verdicts against the appellant on the armed robbery count (count one), and against his co-accused on the remaining counts. The jury could not agree on the count alleging the appellant had sexual intercourse with the 15-year-old complainant. The appellant was sentenced to five years and four months imprisonment with a non-parole period of four years.

The appellant appealed both his conviction and the severity of his sentence. His appeal raised six grounds, focusing on the conduct of the joint trial, directions to the jury, Crown conduct during cross-examination, and whether the jury should have been discharged following a particular piece of evidence.

  • Whether the trial judge erred in refusing to order separate trials of the various counts on the indictment
  • Whether the trial judge gave adequate directions restricting the jury's use of evidence relating to one count when considering another
  • Whether the trial judge gave adequate directions about evidence of uncharged criminal conduct
  • Whether the jury should have been discharged after a witness gave evidence that the offenders threatened to kill members of the group
  • Whether the Crown Prosecutor erred in cross-examining a witness in a manner that suggested the appellant had supplied drugs to her
  • Whether the overall conduct of the Crown Prosecutor caused a miscarriage of justice
  • Whether special circumstances existed warranting a reduction in the non-parole period below the statutory formula

Decision

Refusal to sever counts: The Court found no error in the trial judge's refusal to order separate trials. The counts arose from closely related events, and the evidence on the various charges was substantially interlocking. A joint trial was appropriate in the circumstances.

Jury directions on cross-use of evidence and uncharged conduct: The Court accepted that the trial judge's directions were not perfect. However, assessed in the context of the trial as a whole, the directions were adequate to prevent any relevant misuse of the evidence by the jury. No substantial miscarriage of justice arose from any deficiencies in the summing-up.

Failure to discharge the jury and Crown cross-examination: The Court rejected the argument that the passing reference by a witness to threats to kill gave rise to prejudice requiring discharge. Similarly, the Crown's cross-examination of a witness regarding drug supply, while touching on potentially prejudicial territory, did not, in the Court's view, produce unfairness of the kind that would constitute a miscarriage.

Crown conduct generally: The Court declined to find that the Crown Prosecutor's overall conduct of the trial was sufficiently unfair or inappropriate to have caused the trial to miscarry. Taken individually and collectively, the matters relied upon by the appellant did not meet the threshold for a miscarriage of justice.

Sentence appeal: The Court granted leave to appeal against sentence but dismissed the appeal. It found that the factors advanced as giving rise to special circumstances, namely the appellant's age, prior good character, and first term of imprisonment, were not sufficiently remarkable to justify reducing the non-parole period below the statutory formula. The Court noted that rehabilitation was well advanced by sentencing, no underlying addiction or mental health issue had contributed to the offending, and the appellant retained strong family and community support. The sentence was characterised as a relatively modest one given the seriousness of the offending.

Orders Made

  • Appeal against conviction dismissed
  • Leave to appeal against severity of sentence granted
  • Sentence appeal dismissed

Key Takeaways

  • A refusal to sever counts on an indictment will not ordinarily give rise to a miscarriage of justice where the charges arise from closely connected events and the evidence substantially overlaps.
  • Directions on cross-use of evidence and uncharged criminal conduct are assessed in the context of the whole trial, not in isolation; technical imperfections do not automatically result in a miscarriage of justice.
  • Where Crown cross-examination raises the spectre of uncharged criminal conduct, a trial judge must direct the jury appropriately, but the absence of a perfect direction will not necessarily vitiate a conviction.
  • A finding of special circumstances for the purpose of reducing a non-parole period below the statutory formula requires more than the presence of factors commonly arising on a first offender's sentencing; the Court confirmed that rehabilitation alone, where already substantially achieved before sentencing, does not compel such a finding.
  • In dismissing both the conviction and sentence appeals, the Court of Criminal Appeal reaffirmed that denunciation and deterrence remain central considerations in fixing a non-parole period and cannot be displaced simply by evidence of good prospects for reform.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 77(22) (since repealed)
- Criminal Appeal Act 1912 (NSW), s 5F
- Criminal Procedure Act 1986 (NSW), s 29
- Evidence Act 1995 (NSW), ss 97, 98, 137
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44

Cases:
- R v Guldur (1986) 8 NSWLR 12
- Verma (1987) 30 A Crim R 441
- Gipp v The Queen (1998) 194 CLR 106
- R v TAB [2002] NSWCCA 274
- R v Marsh [2000] NSWCCA 370
- R v Weaver (1931) 45 CLR 321
- Markby v The Queen (1978) 140 CLR 108
- Harriman v The Queen (1989) 167 CLR 590
- BRS v The Queen (1997) 191 CLR 275
- R v Stewart (2001) 52 NSWLR 301
- Crampton v The Queen (2000) 206 CLR 161
- R v Ball (1990) 77 WN (NSW) 605
- Domican (No. 3) (1990) 46 A Crim R 428
- R v Simpson (2001) 53 NSWLR 704
- Power v The Queen (1974) 131 CLR 623