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10
Court of Criminal Appeal 14 October 2008

Causevic v R

[2008] NSWCCA 238

Also reported as (2008) 190 A Crim R 416
Assault & violence
CRIMINAL LAW APPEAL AGAINST CONVICTION

Citation: Causevic v R [2008] NSWCCA 238
Court: NSW Court of Criminal Appeal
Date: 14 October 2008
Judge(s): McClellan CJ at CL; Barr J; Price J

Background

The appellant was convicted in the District Court of maliciously wounding a fellow resident of a Haymarket private hotel with intent to inflict grievous bodily harm, contrary to s 33 of the Crimes Act 1900. The complainant had gone upstairs to confront the appellant over noise, and was stabbed in the neck, chest, and elbow. The appellant did not give evidence at trial but relied on a police interview in which he claimed the complainant had attacked him first, including with a knife, and that he had acted in self-defence.

The central factual dispute was whether the appellant had acted in self-defence, and whether the complainant had been carrying a knife. Several aspects of the appellant's account were inconsistent with the physical evidence, including the absence of blood in his unit and the absence of any knife or paper sheath attributed to the complainant.

On appeal, the appellant raised a single ground: that the Crown Prosecutor's final address to the jury had given rise to a miscarriage of justice. Notably, no objection had been raised at trial. Trial counsel later explained by affidavit that he had failed to recognise parts of the address as the prosecutor pressing personal opinions on the jury.

  • Whether the Crown Prosecutor's closing address to the jury constituted improper conduct resulting in a miscarriage of justice
  • Whether the prosecutor made submissions not based on the evidence
  • Whether the prosecutor conveyed personal opinions to the jury
  • Whether the prosecutor encouraged impermissible lines of reasoning
  • Whether the prosecutor belittled or disparaged the defence case
  • Whether, even if there were difficulties in the address, the conviction was inevitable on the evidence (the proviso)

Decision

The Court set out the governing principles for prosecutorial conduct in jury addresses. A prosecutor must act with fairness and detachment, and while the Crown case may be pressed firmly and vigorously, this must always be done temperately and with restraint. The prosecutor's function is to aid the attainment of justice, not to secure a conviction at all costs. The Court identified five categories of conduct capable of causing a miscarriage: submissions based on material not in evidence, intemperate or inflammatory comments, comments that belittle the accused's case, impugning Crown witnesses without opportunity to respond, and conveying the prosecutor's personal opinions.

McClellan CJ at CL, with whom Barr J and Price J agreed, assessed the prosecutor's address in full. Although the address contained some strong language, the Court found it did not cross the line into unacceptable conduct in the circumstances of this trial. The defence case had been vigorously run and the complainant had been cross-examined forcefully. The language used, while emphatic, did not descend to the kind of ridicule or disparagement condemned in earlier cases such as Livermore v R or R v Rugari.

The trial judge had also directed the jury carefully, reminding them that the Crown case depended principally on the complainant's evidence and that their task was to assess whether the Crown had proved its case beyond reasonable doubt. These directions mitigated any potential prejudice from the address.

On the proviso, the Court was satisfied that this was a strong Crown case. The appellant's account contained multiple inconsistencies with objective facts, and the Court concluded the jury would inevitably have convicted him regardless of any difficulties in the prosecutor's address. No miscarriage of justice had occurred.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that prosecutors may address juries firmly and vigorously, but must always do so temperately, fairly, and with detachment, keeping in mind their duty to justice rather than conviction.
  • Five categories of prosecutorial conduct in closing addresses are capable of giving rise to a miscarriage of justice: submissions unsupported by evidence, inflammatory comments, belittling the defence, impugning Crown witnesses unfairly, and conveying personal opinions.
  • Where no objection was raised at trial, the appellate court applies stricter scrutiny to the complaint, and an affidavit from trial counsel explaining the oversight does not automatically overcome this hurdle.
  • Whether particular language breaches the requirement of temperateness and restraint is assessed case by case, having regard to the overall atmosphere of the trial, including how vigorously the defence was run.
  • In dismissing the appeal, the Court also applied the proviso, finding the conviction inevitable given the strength of the Crown case and the multiple inconsistencies in the appellant's account.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 33

Cases:
- Whitehorn v The Queen (1983) 152 CLR 657
- R v McCullough (1982) 6 A Crim R 274
- R v Rugari (2001) 122 A Crim R 1
- R v Liristis (2004) 146 A Crim R 547
- Livermore v R [2006] NSWCCA 334; (2006) 67 NSWLR 659
- R v KNP [2006] NSWCCA 213; (2006) 66 NSWLR 227
- Libke v The Queen (2007) 230 CLR 559
- Gonzales v R [2007] NSWCCA 321
- R v Saffron (1989) 17 NSWLR 395
- R v Ita (2003) 139 A Crim R 340
- Tekely & Nagle v R [2007] NSWCCA 75
- R v Jovanovic (1997) 42 NSWLR 520
- Puchalski v R [2007] NSWCCA 220
- South v R [2007] NSWCCA 117
- Wilson v R [2006] NSWCCA 217
- R v Smith [2000] NSWCCA 468