Citation: Vella v R [2009] NSWCCA 271
Court: NSW Court of Criminal Appeal
Date: 5 November 2009
Judge(s): Allsop P, Price J, Harrison J
Background
A brawl broke out at a Sydney hotel in October 2007, leaving a trainee bar manager injured. The Crown initially charged the appellant with maliciously inflicting grievous bodily harm, alleging he had personally struck the victim. The entire incident was captured on the hotel's CCTV system, which was played to the jury at trial.
The Crown's case ran into difficulty during cross-examination, when the victim conceded he did not actually know whether it was the appellant or another man, described throughout the trial as "red shirt," who had caused his injuries. The CCTV showed red shirt attacking the victim and knocking him to the ground, and the victim acknowledged before giving his evidence in chief that he had seen this footage.
After the victim's concessions and at the close of the Crown case, the trial judge permitted the Crown to amend its case midstream. The Crown then ran two alternative theories: first, that the appellant had personally struck the blows; and second, that even if red shirt had inflicted the injuries, the appellant had participated in an instantaneous joint criminal enterprise with red shirt to commit the assault.
Legal Issues
- Whether the trial judge erred in allowing the Crown to add an alternative count of joint criminal enterprise late in the proceedings, after cross-examination of the key witness had concluded.
- Whether the trial judge's summing-up adequately explained the defence case on the joint criminal enterprise charge, particularly the appellant's denial that he knew or had any agreement with red shirt.
- Whether the trial judge should have given a direction (known as a "Shepherd direction") to the jury warning against drawing a chain of inferences, specifically inferring mateship between the appellant and red shirt and then inferring a joint criminal enterprise from that mateship.
- Whether the verdict was unreasonable or unsupported by the evidence.
Decision
On the central ground, Harrison J found that the trial judge's summing-up failed to explain the defence case on the joint criminal enterprise issue. The appellant had given evidence that he did not know red shirt, had never spoken to him, had no agreement with him, and denied that red shirt was his friend. Those denials were central to the defence against the alternative count, yet the summing-up did not convey them to the jury. This omission was productive of unfairness and the trial miscarried as a result.
Allsop P added that the midstream amendment to the Crown case was itself most unfortunate and carried the risk of unfairness. His Honour also observed that a common-sense review of the CCTV footage should have led the Crown to include the joint criminal enterprise count in the original charge, rather than raising it after cross-examination of the victim had closed. The fact that a verdict on the alternative count was plainly open on the evidence made the failure to direct the jury on the appellant's response to it all the more significant.
On the question of whether the verdict was unreasonable, the Court declined to quash for that reason. Harrison J considered the CCTV material, taken on one available interpretation, showed convincingly that the appellant and red shirt knew each other and cooperated in the events at the hotel. It was therefore open to the jury to infer a joint criminal enterprise. The verdict was not unreasonable; the problem lay in how the case was put to the jury, not in whether the evidence could support it.
The Court allowed the appeal on the summing-up ground and ordered a new trial rather than a permanent stay of proceedings.
Orders Made
- Appeal allowed.
- Conviction quashed.
- New trial ordered.
Key Takeaways
- A trial judge's summing-up must fairly put the defence case to the jury, including the accused's specific denials relevant to any alternative count. A failure to do so, even where directions on the primary count are adequate, can cause a trial to miscarry.
- Where the Crown amends its case midstream to add a joint criminal enterprise count, directions on the accused's response to that new count become critical. The Court of Criminal Appeal found that generic directions do not discharge the obligation to explain what the defence actually said in answer to the alternative charge.
- Adding a new legal theory after the close of the Crown case carries inherent risks of unfairness. Allsop P noted that where the evidence supporting the new count was visible on the CCTV from the outset, there was no good reason for the amendment to occur so late.
- A verdict being reasonably open on the evidence does not cure a deficiency in the summing-up. The Court found the joint criminal enterprise verdict was open, yet still quashed the conviction because the jury had not been properly equipped to consider the defence case.
- Under the principle in Tangye (1997) 92 A Crim R 545, the Crown needs to rely on joint criminal enterprise only where it cannot establish beyond reasonable doubt that the accused personally committed the offence charged. The Court confirmed that this doctrine remained in play where the CCTV raised genuine uncertainty about who struck the blows.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 33
- Evidence Act 1995 (NSW)
Cases:
- Tangye (1997) 92 A Crim R 545
- Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 57
- Chidiac v The Queen [1991] HCA 4; (1991) 171 CLR 432
- M v R [1994] HCA 63; (1994) 181 CLR 487
- Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657
- Phillips v The Queen [1985] HCA 79; (1985) 159 CLR 45
- R v Cakovski [2004] NSWCCA 280; (2004) 149 A Crim R 21
- R v El-Azzi [2004] NSWCCA 455
- R v Ellis [2003] NSWCCA 319; (2003) 144 A Crim R 1
- R v Lykouras [2005] NSWCCA 8
- R v Meher [2004] NSWCCA 355
- Greatorex (1994) 74 A Crim R 496
- Stokes v The Queen [1960] HCA 95; (1960) 105 CLR 279
- Williams [1999] NSWCCA 9; (1999) 104 A Crim R 260