Citation: Maraache v R [2013] NSWCCA 199
Court: NSW Court of Criminal Appeal
Date: 3 September 2013
Judge(s): Emmett JA; Fullerton and Schmidt JJ
Background
The applicant was convicted in the District Court on 8 February 2012 of breaking and entering a dwelling house and committing an assault with intent to rob, in circumstances of aggravation (being in company) and special aggravation (being armed with a firearm), contrary to s 112(3) of the Crimes Act 1900. The offence carried a maximum penalty of 25 years' imprisonment and a standard non-parole period of seven years.
The Crown alleged that on 27 May 2010, a group of adults and juveniles descended on a home in St Andrews, New South Wales, in a planned armed robbery. The applicant did not enter the house and remained in a car throughout. The Crown's case rested entirely on the allegation that he had been involved in planning the home invasion. The applicant gave evidence denying any involvement, saying he was an innocent bystander.
The trial came down to a single, discrete factual question: whether the applicant had participated in planning the offence. The Crown relied on the evidence of several co-offenders, including juveniles who had received sentence discounts in exchange for giving evidence. The applicant sought leave to appeal his conviction on the ground that the trial judge failed to put his defence case properly to the jury.
Legal Issues
- Whether the trial judge's summing-up adequately put the applicant's defence case to the jury, particularly by referring to the evidence and arguments on which the defence relied.
- Whether the failure to object to the summing-up at trial precluded the applicant from raising the adequacy of the summing-up as a ground of appeal.
- Whether, if a deficiency in the summing-up was established, a miscarriage of justice had occurred within the meaning of s 6(1) of the Criminal Appeal Act 1912.
Decision
The Court granted leave to appeal notwithstanding that no objection had been taken by defence counsel at trial. Under r 4 of the Criminal Appeal Rules, leave is required where no objection was raised at trial, but the absence of an objection does not preclude the Court from granting leave where the interests of justice require it.
The Court found that the trial judge's summing-up was inadequate. While the summing-up addressed the Crown case and the evidence supporting it in some detail, it did not fairly or sufficiently put the applicant's case to the jury. The applicant's defence was straightforward: the Crown witnesses were unreliable and self-interested co-offenders, and the applicant's own evidence that he was an innocent bystander should be accepted, or at least raise a reasonable doubt. The trial judge, however, failed to direct the jury to the specific evidence and arguments underpinning that defence.
The Court reaffirmed the principle drawn from Domican v R and R v Meher that a trial judge bears an independent obligation to put the accused's case to the jury, regardless of how well defence counsel has addressed the jury in closing. The weaker the defence, the more important this obligation becomes. It is insufficient for a trial judge to rely on the fact that defence counsel has already addressed the jury; the judge must, with the weight of judicial authority, put the defence case in the context of the evidence.
The Court concluded that the applicant had been denied a fair opportunity of acquittal as a result of the deficiency. This constituted a miscarriage of justice, and leave to appeal was granted accordingly.
Orders Made
No orders were made in this decision.
Key Takeaways
- A trial judge carries an independent obligation to put the accused's defence case to the jury in the summing-up, including by identifying the specific evidence and arguments on which the defence relies, even where defence counsel has already addressed those matters in closing.
- The principle, reaffirmed by the Court of Criminal Appeal, is that the weight of judicial authority must be lent to fairly and cogently presenting the accused's case. This obligation does not diminish because the defence case is weak; if anything, it intensifies.
- Where the Crown case and supporting evidence are addressed in the summing-up but the defence case is not, the resulting imbalance can constitute a miscarriage of justice under s 6(1) of the Criminal Appeal Act 1912.
- Failure by defence counsel to object to the summing-up at trial does not automatically preclude an appeal. Leave under r 4 of the Criminal Appeal Rules may still be granted where the interests of justice require it.
- Where a trial turns on a single, discrete factual question resolved entirely by the jury's assessment of witness credibility, a failure to direct the jury to the evidence and arguments bearing on that question is particularly likely to occasion a miscarriage of justice.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 112(3), 349(2)
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Criminal Procedure Act 1986 (NSW), s 161
- Criminal Appeal Rules, r 4
Cases
- Broadhurst v R [1964] AC 441
- Domican v R [1992] HCA 13; (1992) 173 CLR 555
- El-Jalkh v R [2009] NSWCCA 139
- R v Meher [2004] NSWCCA 355
- R v Tomazos (Court of Criminal Appeal, 6 August 1979, unreported)
- R v Zorad (1990) 19 NSWLR 91
- TKWJ v R [2002] HCA 46; (2002) 212 CLR 124