Citation: Regina v Meher [2004] NSWCCA 355
Court: Court of Criminal Appeal, New South Wales
Date: 21 October 2004
Judge(s): Wood CJ at CL, Buddin J, Shaw J
Background
The appellant was convicted in the District Court following a jury trial on charges arising from an incident at a Sikh Temple in Revesby in June 2002. The charges included wounding his former wife with intent to murder her (she was shot in the leg), unlicensed use and possession of a pistol, and assault of his son. He pleaded not guilty to all counts.
The central factual dispute was stark: the Crown alleged the appellant had brought a loaded pistol to the Temple in a backpack and deliberately shot his former wife, against a backdrop of bitter family conflict involving property disputes, an AVO, and a since-dismissed sexual assault prosecution. The appellant denied bringing any weapon, asserting it was his son who had arrived at the Temple armed with the gun, and that any discharge occurred accidentally during a struggle.
No forensic evidence directly linked the appellant to the weapon. The case therefore turned substantially on the credibility of the former wife, the son, and the appellant himself. The appellant was convicted and sentenced to a non-parole period of 12 years with a balance of term of 4 years. He appealed on the ground that the trial miscarried due to an unbalanced summing up and an inappropriate remark by the Crown Prosecutor.
Legal Issues
- Whether the trial judge's summing up was so unbalanced in favour of the Crown as to constitute a miscarriage of justice
- Whether the trial judge impermissibly advanced factual arguments in support of the Crown case that neither the Crown nor defence had raised
- Whether repeated characterisation of the appellant as "a liar" in the summing up unfairly favoured the Crown
- Whether the Crown Prosecutor's expression of personal opinion about the appellant's demeanour during the recorded interview warranted appellate intervention
Decision
Grounds 1, 2 and 3 (Unbalanced Summing Up): Upheld
Wood CJ at CL (with whom Buddin J and Shaw J agreed) held that the summing up, viewed as a whole, was so heavily directed in favour of the Crown that a miscarriage of justice occurred. The Court emphasised that no single complaint was individually sufficient to establish error; it was the cumulative effect that was fatal to the convictions.
Ground 1(a) and (b): Conflation of struggle and shouting; error regarding Harpreet Singh Chopra
The trial judge developed an argument, not advanced by the Crown, that because several witnesses placed the gunshots before any yelling or shouting, this supported the Crown's case that the gun was fired before any struggle began. The Court found this reasoning impermissible for several reasons. The argument was not put by the Crown and defence had no opportunity to meet it. It also failed to confront the possibility that a struggle could have commenced without anyone shouting. The trial judge further incorrectly told the jury that the evidence of Harpreet Singh Chopra "threw light on the sequence of events," when in fact the judge himself had just observed that Chopra "certainly cannot help you on this issue." Although the error about Chopra alone would not have caused a miscarriage, it compounded the broader problem.
Ground 1(c) and (d): Reasoning towards guilt; defence case not put
The Court found that the trial judge's treatment of the Crown case amounted to directing the jury in how to reason towards a verdict of guilty. Critically, the defence case was not summarised to the jury at all. The trial judge's only references to the defence address were critical of it. The governing principle, drawn from authorities including Pemble v The Queen and Regina v Tomazos, is that a trial judge must explain the defence case to the jury, including any matter properly open on which they might find for the accused. The weaker the defence, the more important this obligation becomes.
Ground 2: ERISP answer used to infer intent without Crown having advanced that argument
The trial judge drew the jury's attention to a particular answer the appellant gave during his recorded police interview, suggesting it demonstrated a contemporaneous intention to kill. This argument had not been put in cross-examination and had not been advanced by the Crown. The appellant had no opportunity to meet it. The Court identified this as a further example of a judge using the summing up to strengthen the Crown case impermissibly.
Ground 3: Repeated characterisation of the appellant as "a liar"
The trial judge referred to the appellant as "a liar" on multiple occasions. The Court found this problematic because the appellant had not conceded to being a liar in general terms; he had acknowledged giving false information in the letter found in his bag and in parts of the recorded interview. Labelling a person a liar categorically, rather than by reference to identified matters, went further than the evidence warranted. The juxtaposition of this characterisation with favourable references to Crown witnesses made the imbalance more acute.
Ground 4: Crown Prosecutor's personal opinion
The Court refused leave to argue this ground. Although the Crown Prosecutor's expression of personal opinion about the appellant's demeanour during the recorded interview was inappropriate, the Court distinguished R v Rugari. On the first occasion, the Crown Prosecutor had expressly left the assessment to the jury. On the second occasion, no personal opinion was expressed. The trial judge also gave a clear direction that counsel's submissions were not evidence and that questions of fact were exclusively for the jury.
Orders Made
- Appeal against conviction allowed
- Convictions and sentences below quashed
- New trial directed
- (No occasion arose to consider the application for leave to appeal against sentence)
Key Takeaways
- A trial judge's summing up must be fair, balanced and impartial; the obligation extends to explaining the defence case to the jury, including every matter properly open on which they might find for the accused, regardless of how strong the Crown case appears.
- Introducing factual arguments in favour of the Crown that were not advanced by the Crown Prosecutor is impermissible: it is inconsistent with judicial impartiality and denies both parties the opportunity to disavow or meet the argument.
- Individual complaints about a summing up may each fall short of establishing appellable error; the Court of Criminal Appeal confirmed that the summing up must be evaluated as a whole, and a combination of individually insufficient complaints can together constitute a miscarriage of justice.
- Characterising an accused as "a liar" in general terms goes further than the evidence warrants where the accused has only conceded to untruth in specific identified matters; such broad labelling, particularly when juxtaposed with favourable treatment of Crown witnesses, tips the balance impermissibly against the defence.
- Crown Prosecutors must maintain a clear boundary between permissible comment on evidence and the expression of personal opinions to the jury; while the Court declined to intervene on Ground 4 in this case, it expressly noted that what occurred was inappropriate.
Legislation and Cases Referenced
Legislation
- Not stated
Cases
- Not stated