Citation: El Hassan v Regina [2007] NSWCCA 148
Court: Court of Criminal Appeal, New South Wales
Date: 6 June 2007
Judge(s): Hunt AJA; Johnson J; Latham J
Background
The appellant was convicted by a District Court jury of conspiring with his brother over a twelve-month period in 2001 to 2002 to dispose of stolen property, knowing it to have been stolen. The stolen property included motor vehicles, motor vehicle parts, motorcycles, a boat, and a Bobcat loader, much of which was packed into shipping containers and sent to Lebanon.
The Crown case was that the appellant organised, disassembled, packed, and arranged shipping for stolen goods, including paying for containers when his brother was overseas. The appellant's defence was that he ran his own legitimate motor vehicle business and was simply helping his brother with lawful purchases, without any knowledge that the items were stolen.
It was ultimately conceded by the defence that the brother had been involved in knowingly receiving and disposing of stolen vehicles. The issue at trial was whether the appellant himself possessed the guilty knowledge required for the conspiracy charge. Following conviction, the trial judge imposed a six-year term of imprisonment with a four-year non-parole period.
Legal Issues
- Whether the jury should have been discharged after a television programme about "re-birthing" stolen vehicles, which included footage connected to the investigation, was broadcast on the first night of the trial
- Whether the trial judge's directions on circumstantial evidence were adequate, including whether it was proper to tell the jury that circumstantial evidence can in some cases be more convincing than direct evidence
- Whether the expression "hypothesis consistent with innocence" was a suitable formulation for the jury
- Whether the trial judge was required to apply legal directions to the specific facts of the case and give equal time to both sides in the summing-up
- Whether the verdict was unreasonable in circumstances where the appellant argued there was a "lurking doubt" that justice had been done
- Whether the sentence was excessive, and whether special circumstances justified a departure from the standard statutory ratio between the non-parole period and the total term
Decision
Jury discharge application. On the morning after the broadcast, the trial judge declined to discharge the jury and instead gave a direction telling jurors to disregard anything they may have seen and to focus on the evidence in the case. The Court of Criminal Appeal confirmed that juries must be accepted to have faithfully followed a judge's directions unless the contrary is established. No contrary was established here, and the refusal to discharge was upheld.
Circumstantial evidence directions. The Court considered whether the judge's comment that circumstantial evidence is not necessarily less reliable than direct evidence, and can in some cases be more convincing, was appropriate. The Court accepted that such a comment, while requiring care, was not an error in the context of proper directions overall. The expression "hypothesis consistent with innocence" was also examined; the Court did not condemn it outright but noted the need for directions on circumstantial evidence to be carefully tied to the facts of the particular case.
Summing-up and balance. The Court reaffirmed that a trial judge must apply legal directions to the actual facts of the case, but rejected any suggestion that a summing-up must give equal time to the case of each party. The conviction was not disturbed on any of the grounds concerning the adequacy of the summing-up.
Unreasonable verdict. The Court rejected the argument that a "lurking doubt" about whether justice had been done was sufficient to establish that the verdict was unreasonable. The appeal against conviction was dismissed in its entirety.
Sentence. The Court found the six-year head sentence excessive in light of accepted mitigating circumstances, and substituted a five-year term. Following the approach in Regina v Kama, the Court preserved the benefit the appellant had already received from a non-parole period shorter than the statutory default, fixing the non-parole period at three years and four months.
Orders Made
- The appeal against conviction is dismissed.
- Leave to appeal against sentence is granted; the appeal is allowed; the original sentence is quashed.
- In substitution, a term of imprisonment for five years is imposed, commencing 15 February 2005 and concluding 14 February 2010, with a non-parole period of three years and four months commencing 15 February 2005 and concluding 14 June 2008.
- The appellant is to be subject to supervision by the Probation and Parole Service whilst on parole.
- The Form 1 matter has been taken into account.
Key Takeaways
- A jury is presumed to have faithfully followed a judge's directions to disregard potentially prejudicial media coverage unless there is affirmative evidence to the contrary; the mere existence of a broadcast touching on matters related to the trial does not automatically warrant discharge.
- Circumstantial evidence directions must be carefully connected to the facts of the specific case; the Court of Criminal Appeal confirmed there is no prohibition on a judge observing that circumstantial evidence can in some cases be more convincing than direct evidence, provided the overall directions are sound.
- No requirement exists for a summing-up to allocate equal time to the prosecution and defence cases, though the trial judge must apply legal principles to the actual facts before the jury.
- A "lurking doubt" about whether justice was done does not, without more, establish that a jury verdict was unreasonable within the meaning of the relevant appellate ground.
- In sentencing, the Court of Criminal Appeal followed Regina v Kama on special circumstances, reducing the head sentence to reflect mitigating factors while preserving the benefit of the more favourable non-parole ratio that had already been applied below.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 188(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
- Criminal Appeal Act 1912 (NSW)
- Sentencing Act 1989 (NSW)
- Criminal Appeal Rules
Cases:
- Regina v Kama (2000) 110 A Crim R 47
- Chamberlain v The Queen (No 2) (1984) 153 CLR 521
- Shepherd v The Queen (1990) 170 CLR 573
- Murphy v The Queen (1988) 167 CLR 94
- House v The King (1936) 55 CLR 499
- The Queen v Hoar (1981) 148 CLR 32
- Regina v Wilson (2005) 62 NSWLR 346
- Regina v Ngo [2003] NSWCCA 82
- Kanaan & Ors v Regina [2006] NSWCCA 109
- Ilioski v Regina [2006] NSWCCA 164
- Stevens v Regina (2005) 222 ALR 40
- Regina v Zorad (1990) 19 NSWLR 91
- Regina v Savvas (No 2) (1991) 58 A Crim R 174
- Regina v Walters (1992) 62 A Crim R 18
- Regina v Spencer [1987] AC 128
- Regina v Kilbourne [1973] AC 729
- Regina v Ball (1960) 61 SR 37
- Regina v Cable (1947) 47 SR 183
- Grant v Regina (1975) 11 ALR 503