Citation: Regina v Meher [2004] NSWCCA 355
Court: NSW Court of Criminal Appeal
Date: 21 October 2004
Judge(s): Wood CJ at CL; Buddin J; Shaw J
Background
The appellant was convicted in the District Court on four counts arising from an incident at a Sikh Temple in Revesby on 22 June 2002. The charges included wounding his former wife with intent to murder her, unlicensed use and possession of a pistol, and assaulting his son. He was sentenced to a non-parole period of 12 years with a balance of term of four years.
The Crown alleged the appellant entered the temple knowing his family would be present, carrying a backpack containing a Ruger pistol alongside personal documents including a will. The appellant's son gave evidence that his father shot his mother in the leg as she ran, and that a struggle over the gun followed. The appellant, by contrast, claimed it was his son who had brought the gun to the temple, and that the struggle was the cause of his former wife's injury. He raised self-defence in relation to the assault charge.
The background was one of significant family conflict. The parties had divorced, an apprehended violence order had been in place against the appellant, and there had been a prior (unsuccessful) sexual assault prosecution involving one of his daughters. No forensic evidence linking the appellant to the firearm was recovered.
Legal Issues
- Whether the trial judge's summing-up to the jury was unfairly balanced in favour of the Crown
- Whether the trial judge improperly introduced factual arguments favourable to the Crown that neither party had advanced
- Whether repeated characterisations of the appellant as a liar in the summing-up caused a miscarriage of justice
- Whether the Crown Prosecutor's expression of personal opinion during his address constituted a further ground of appeal
Decision
The Court of Criminal Appeal allowed the appeal on the first three grounds, finding that the summing-up was unbalanced when assessed as a whole. No single complaint was, on its own, sufficient to establish a miscarriage of justice. In combination, however, the cumulative effect of the deficiencies meant the summing-up was so heavily directed in favour of the Crown, with so little attention given to the defence case, that a miscarriage of justice had occurred.
The trial judge had improperly conflated the timing of the gunshots with the timing of shouting heard by witnesses, and incorrectly told the jury that one witness's evidence illuminated the sequence of events when it did not. The argument constructed from this reasoning, suggesting the evidence supported the Crown's version of who brought the gun and whether it discharged accidentally, was never advanced by the Crown and the defence had no opportunity to respond to it. The summing-up also failed to put the defence case adequately to the jury.
A further problem arose from the trial judge's repeated references to the appellant as a liar, including one instance placed immediately alongside a favourable reference to Crown witnesses. This was held to be unduly favourable to the Crown. The Court noted that while judges may comment on facts and even offer opinions, those opinions must be clearly identified as such, and the jury must be told the ultimate decision on all factual questions rests with them.
The fourth ground, concerning the Crown Prosecutor's expression of personal opinion about the appellant's demeanour during a recorded interview, was refused leave to argue. The Court found the comment was inappropriate, but adequate directions had been given to the jury to assess the evidence themselves, which cured the irregularity.
Orders Made
- Appeal against conviction allowed
- Convictions and sentences below quashed
- New trial directed
Key Takeaways
- A trial judge's summing-up must be fair, balanced, and impartial. Introducing factual arguments favourable to the Crown that were not advanced by the prosecution, and which the defence had no opportunity to meet, will constitute a serious error.
- Where the defence case is not adequately put to the jury in the summing-up, this can contribute to a finding that the trial miscarried, particularly when the Crown case was presented in a consistently favourable light.
- Repeated characterisation of an accused as a liar in a summing-up, especially when juxtaposed with favourable references to prosecution witnesses, can render the summing-up impermissibly unbalanced.
- Cumulative error is a recognised basis for finding a miscarriage of justice. The Court of Criminal Appeal confirmed that individual deficiencies, each insufficient on their own, can combine to require a conviction to be set aside.
- An inappropriate personal opinion expressed by a Crown Prosecutor during address will not automatically vitiate a conviction where the trial judge gave adequate corrective directions to the jury.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 27, 61
- Firearms Act 1996 (NSW), s 7(1)
Cases:
- Domican v The Queen (1992) 173 CLR 555
- B v The Queen (1992) 175 CLR 599
- RPS v The Queen (2000) 199 CLR 620
- Tsigos v The Queen (1965) 39 ALJR 76
- R v Rugari (2001) 122 A Crim R 1
- R v Inamata (2003) 137 A Crim R 510
- R v Courtney-Smith (No 2) (1990) 48 A Crim R 49
- R v Malone (NSWCCA, 20 April 1994)
- Pemble v The Queen (1971) 124 CLR 107
- R v Broadhurst [1964] AC 441
- R v Heuston (1995) 81 A Crim R 387
- R v RTB [2002] NSWCCA 104
- R v TAB [2002] NSWCCA 274
- Regina v Schmahl [1965] VR 745
- Regina v Tomazos (NSWCCA, 6 August 1971)