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Court of Criminal Appeal 23 February 2006

Hajje v R

[2006] NSWCCA 23

Assault & violence
APPEAL AGAINST CONVICTION JURY VERDICT MALICIOUS WOUNDING WHETHER VERDICT UNREASONABLE TENDENCY EVIDENCE CREDIBILITY OF PROSECUTION WITNESSES

Citation: Hajje v R [2006] NSWCCA 23
Court: NSW Court of Criminal Appeal
Date: 23 February 2006
Judge(s): Simpson J (with Adams J and Hoeben J agreeing)

Background

The appellant was convicted in the District Court of malicious wounding following a ten-day trial before Shillington DCJ. The conviction arose from events on the night of 27 March 2002 in Bass Hill, during which the complainant was shot in the left calf in the course of a violent confrontation involving multiple men and at least three firearms.

The dispute had its origins in a failed motor vehicle sale. The complainant and an associate had paid $15,000 for a vehicle the appellant represented as a high-performance model, but the engine proved defective. After repeated unsuccessful attempts to obtain a refund, the two men attended the appellant's home on consecutive evenings. On the second visit, the confrontation that gave rise to the charges occurred.

The Crown case was that the appellant had either personally fired the shot that struck the complainant, or had participated in a joint criminal enterprise with others who fired guns that night. The jury acquitted the appellant of malicious wounding with intent to cause grievous bodily harm but convicted him of the lesser offence of malicious wounding. He appealed against the conviction only, not the sentence.

  • Whether the verdict of malicious wounding was unreasonable or unsupported by the evidence
  • Whether tendency evidence (evidence going to a pattern of conduct) was properly admitted
  • Whether evidence of unrelated ammunition found in the appellant's home was admissible
  • Whether the trial judge gave adequate directions on identification evidence, given its acknowledged unreliability
  • Whether the trial judge adequately directed the jury on the credibility of the principal Crown witnesses, particularly in light of the approach required by Regina v Markuleski
  • Whether any combination of the above grounds, individually or collectively, resulted in a miscarriage of justice

Decision

Unreasonable verdict. The Court found that the verdict was not unreasonable. There was evidence from two witnesses, the complainant and his associate, that the appellant was in possession of and fired a gun during the confrontation. While the credibility of those witnesses was seriously in contest, it was open to the jury to accept their accounts.

Wrongly admitted ammunition evidence. The Court accepted that evidence of unrelated ammunition found at the appellant's home had been wrongly admitted. However, the Court concluded that this error did not produce a miscarriage of justice. The erroneously admitted material was peripheral, and the jury's attention was directed to more central evidence.

Identification directions. The Court considered whether the trial judge's directions on identification evidence were adequate, particularly given the chaotic circumstances of the confrontation at night. The Court was satisfied that the directions given were sufficient in the circumstances and that no appealable error arose from them.

Credibility directions and the Markuleski question. The appellant argued that the trial judge should have given a specific direction requiring the jury to consider, when assessing the witnesses' credibility on the main charges, any doubts it held about those witnesses' evidence concerning events on the preceding evening. The Court acknowledged that this principle, drawn from Markuleski, was sound. However, it found that the jury was fully aware the credibility of the Crown witnesses was seriously in question, and that the traditional direction permitting partial acceptance of witness evidence was adequate in the circumstances. The absence of an explicit Markuleski direction did not give rise to a miscarriage of justice.

Orders Made

  • Appeal against conviction dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the wrongful admission of evidence does not automatically result in a miscarriage of justice: the court examines whether the error materially affected the outcome, having regard to all the evidence before the jury.
  • A Markuleski direction (requiring the jury to carry doubts about a witness's credibility from one area of their evidence into the assessment of other parts) is not confined to sexual misconduct cases and can apply to principal Crown witnesses generally, including complainants in violent offences.
  • The absence of an explicit Markuleski direction is not necessarily fatal to a conviction where the jury was otherwise clearly alive to the credibility issues at stake and received appropriate general directions on witness evidence.
  • Where the Crown case rests on joint criminal enterprise, it is not necessary to establish that the accused personally fired the shot that caused the relevant injury, provided the accused was shown to have been in possession of and fired a gun as part of a common design.
  • Under the Criminal Appeal Act 1904, s 6, an appellate court may decline to set aside a conviction notwithstanding that an error occurred at trial, if no substantial miscarriage of justice is demonstrated.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1904, s 6
- Evidence Act 1995 (NSW), ss 56(2), 97, 116, 135, 137, 165(2)

Cases:
- Dhanhoa v The Queen [2003] HCA 40; 217 CLR 1
- Domican v The Queen [1992] HCA 13; 173 CLR 555
- Jones v The Queen [1997] HCA 12; 191 CLR 439
- M v The Queen [1994] HCA 63; 181 CLR 487
- R v Clarke (1997) 97 A Crim R 414
- Regina v Markuleski [2001] NSWCCA 290; 52 NSWLR 82