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Court of Criminal Appeal 7 June 2005

Regina v Taouk

[2005] NSWCCA 155

Also reported as (2005) 154 A Crim R 69
HomicideFirearms & weapons
CRIMINAL LAW CONVICTION APPEAL MURDER

Citation: Regina v Taouk [2005] NSWCCA 155
Court: NSW Court of Criminal Appeal
Date: 7 June 2005
Judge(s): James J; Hislop J; Hall J

Background

The appellant was convicted after a Supreme Court trial before Barr J and a jury on two counts of murder. The victims were his wife and his brother-in-law, both killed in the early hours of 29 September 2002 at the family home in Strathfield. The circumstances involved a dispute about family members arriving home late, after which gunshots were heard and both victims were found dead.

The prosecution case was substantially circumstantial. It relied on evidence of admissions the appellant allegedly made to a police officer (which were not electronically recorded), forensic evidence including gunshot residue found on the hands of the appellant and on the hands of the deceased brother-in-law, and the accounts of five adult children who were present in the house that night.

The appellant appealed his convictions on three grounds, challenging the admission of the unrecorded police admissions, the adequacy of the trial judge's directions on the gunshot residue evidence, and the overall reasonableness of the jury's verdicts.

  • Whether the trial judge erred in admitting evidence of alleged admissions made by the appellant to a police officer that were not electronically recorded
  • Whether the trial judge's directions to the jury on the gunshot residue evidence (found on both the appellant and one of the deceased) were erroneous or inadequate
  • Whether the jury's verdicts of guilty on both counts of murder were unreasonable having regard to the whole of the evidence

Decision

On the first ground, the Court rejected the challenge to the admission of the unrecorded admissions. The admissions evidence was treated as properly admitted, and the Court found no error in the trial judge's approach to that evidence.

On the second ground, the Court considered whether the trial judge's general circumstantial evidence direction was sufficient, or whether a more specific direction was required regarding the gunshot residue finding on the deceased brother-in-law's hands. That residue raised the hypothesis that the deceased may have fired the weapon himself during a struggle. Hall J, with whom the others agreed, concluded that leave under rule 4 of the Criminal Appeal Rules should not be granted on this point. Crucially, the circumstantial evidence case was supported by strong admissions evidence, and Hall J was not satisfied that the absence of a specific direction on this hypothesis caused any miscarriage of justice. The general direction given at trial was found sufficient in the context of the overall case.

On the third ground, the Court applied the established test for unreasonable verdicts and, after a close analysis of the evidence, concluded that the verdicts were not unreasonable. Hislop J and Hall J both agreed with the analysis and conclusions of James J on this ground. The appeal against conviction was dismissed.

Orders Made

  • Appeal against conviction dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the absence of electronic recording does not of itself render alleged admissions inadmissible, provided the trial judge properly considers admissibility.
  • A general circumstantial evidence direction will often suffice at trial; a more specific direction addressing individual pieces of circumstantial evidence is not always required, particularly where other strong evidence (such as admissions) supports the verdict.
  • Leave under rule 4 of the Criminal Appeal Rules will not readily be granted to run a ground based on inadequate jury directions where no such direction was sought at trial and no miscarriage of justice is apparent from the record as a whole.
  • Where gunshot residue is found on a deceased person's hands, the trial judge may need to consider whether a specific direction on hypotheses consistent with innocence is warranted, though this will depend on the overall strength of the Crown case.
  • Sufficient evidence existed, including the admissions and circumstantial evidence, to support the jury's verdicts as reasonable conclusions on the whole of the material before them.

Legislation and Cases Referenced

Legislation:
- Crimes Act (NSW)
- Criminal Appeal Rules (NSW)
- Criminal Procedure Act (NSW)
- Evidence Act (NSW)
- Criminal Code (Western Australia)
- Criminal Law (Detention and Interrogation) Act 1995 (Tas)

Cases:
- Barca v The Queen (1975) 133 CLR 82
- M v The Queen (1994) 181 CLR 487
- Shepherd v The Queen (1990) 170 CLR 573
- MFA v The Queen (2002) 213 CLR 606
- The Queen v Swaffield (1997) 192 CLR 159
- Jones v The Queen (1997) 191 CLR 439
- Knight v The Queen (1992) 175 CLR 495
- Kelly v The Queen (2004) 78 ALJR 538
- Nicholls v The Queen; Coates v The Queen (2005) 213 ALR 1
- R v Bunting & Wagner [2005] SASC 45
- R v Khouzame [2000] NSWCCA 505
- R v Nelson [2004] NSWCCA 231
- R v Rondo (2001) 126 A Crim R 562
- Plomp v The Queen (1963) 110 CLR 234
- Peacock v The King (1911) 13 CLR 619
- Thomas v The Queen (1960) 102 CLR 584