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Court of Criminal Appeal 28 October 2011

Abdel-Hady ("SA") v R

[2011] NSWCCA 196

Sexual offencesDrugs
CRIMINAL LAW APPEAL AGAINST CONVICTION INDECENT ASSAULT

Citation: Abdel-Hady ("SA") v R [2011] NSWCCA 196
Court: NSW Court of Criminal Appeal
Date: 28 October 2011
Judge(s): McClellan CJ at CL, Adams J, Fullerton J

Background

The appellant was convicted in February 2009 on two counts of causing another person to take a stupefying drug with intent to commit an indictable offence (contrary to s 38 of the Crimes Act 1900), and one count of indecent assault. Both drug-spiking counts arose from a single occasion involving two complainants, a couple on a working holiday in Sydney, whom the appellant had invited back to his apartment in the early hours of the morning after meeting them at a bar.

The Crown alleged that the appellant mixed zolpidem (Stilnox) into drinks he prepared for the complainants, and that while the male complainant was asleep in another room and the female complainant was semiconscious, the appellant placed his hand inside her underwear and touched her vagina. The intended indictable offence particularised in the two drug-spiking counts was specifically the indecent assault alleged in the third count.

The appellant appealed against all three convictions, challenging the fairness of the trial judge's summing up and the adequacy of directions given to the jury.

  • Whether the trial judge's summing up failed to present a balanced account of the competing cases, thereby causing a miscarriage of justice.
  • Whether the trial judge erred by failing to direct the jury to consider each of the three counts on the indictment separately.
  • Whether the trial judge erred by refusing to give a direction in accordance with R v Markuleski [2001] NSWCCA 290 (a direction addressing the use of evidence on one count when reasoning about another).

Decision

The Court of Criminal Appeal allowed the appeal on the ground of an unbalanced summing up. The joint judgment of Adams and Fullerton JJ (with McClellan CJ at CL agreeing) found that the trial judge had, from the outset of his directions on the elements of the offences, commented adversely on the style and substance of defence counsel's arguments. Those comments were frequently expressed in terms that conveyed the judge's personal views rather than presenting them as arguments the Crown had advanced, and were repeated throughout the summing up in a way that materially undermined the defence case.

The Court noted that the general directions reminding the jury of their independent role and the importance of forming their own views did not neutralise the cumulative effect of the judge's adverse commentary. The powerful impression likely conveyed to the jury was that the defence case was insubstantial, reflecting the judge's personal opinion rather than leaving that assessment to the jury.

The Court also identified an important structural feature of the case: the three counts were inextricably linked. Because the Crown had confined its evidence of the appellant's intent (required for the two drug-spiking counts) to the indecent assault alleged in the third count, the jury had to be satisfied beyond reasonable doubt of that indecent assault before it could reason to guilt on counts one and two. This linkage made careful and balanced directions from the trial judge all the more critical.

The Court declined to apply the proviso (which would allow a conviction to stand despite a trial error if the verdict was inevitable). The verdicts were not inevitable, the jury's assessment may well have been distorted by the imbalance in the summing up, and the credibility of the complainants, which was central to the Crown case, could not adequately be assessed from the written record.

Orders Made

  • Appeal against conviction allowed.
  • All three convictions quashed.
  • New trial ordered in respect of each count.
  • The sentence appeal was not separately considered given the outcome on conviction.

Key Takeaways

  • A trial judge's summing up must present the defence case fairly and without adverse personal commentary; repeatedly characterising defence arguments as weak or unpersuasive, in terms that suggest the judge's own opinion, can constitute a miscarriage of justice warranting a new trial.
  • The Court of Criminal Appeal confirmed that general directions about the jury's independent function do not necessarily cure the prejudicial effect of sustained imbalance in a summing up.
  • Where counts on an indictment are logically interdependent, as where proof of intent on one count depends entirely on proof of a separate count, the trial judge bears a heightened obligation to direct the jury carefully about that relationship.
  • Applying the proviso requires satisfaction that the verdict was inevitable; where credibility findings were central to the Crown case and could not properly be assessed on appeal from the written record alone, that threshold was not met.
  • Under s 38 of the Crimes Act 1900, the intent to commit an indictable offence is an element of the drug-spiking charge that must be particularised and proved beyond reasonable doubt, and where the Crown confines that proof to a single alleged act, the jury must be satisfied of that act before guilt on the spiking count can be established.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 38 (causing another to take a stupefying drug with intent to commit an indictable offence) and 61L (indecent assault)

Cases:
- R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82
- R v Inamata [2003] NSWCCA 19; 137 A Crim R 510
- R v Zorad (1990) 19 NSWLR 91
- RPS v R [2000] HCA 3; 199 CLR 620