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Court of Criminal Appeal 5 June 2015

Jubraeel v R

[2015] NSWCCA 131

Homicide
CRIMINAL LAW MURDER APPEAL AGAINST CONVICTION WHETHER JURY VERDICT UNREASONABLE S 6 CRIMINAL APPEAL ACT 1912 APPEAL DISMISSED

Citation: Jubraeel v R [2015] NSWCCA 131
Court: NSW Court of Criminal Appeal
Date: 5 June 2015
Judge(s): Macfarlan JA (principal judgment); Johnson J; RS Hulme AJ (both agreeing)

Background

The applicant was convicted by a jury in February 2014 of the murder of Colin Wick, who was shot through a glass door at his Canley Heights home on the evening of 23 July 2011. Ms Attard, who witnessed the shooting, described three men standing outside in dark clothing and balaclavas, one of whom fired the shot. Police located a white Toyota Corolla nearby, from which the applicant's fingerprints and DNA were recovered.

The applicant's case at trial was straightforward: he was not present at the scene, having spent the relevant hours at a friend's unit. However, a close friend, Ms Bas, gave evidence that the applicant had described his own participation in the events the day after the shooting, telling her details that included the getaway car breaking down, a fact not publicly reported at the time.

The applicant sought to appeal his conviction on two grounds. First, he argued the trial judge failed to give adequate alibi directions. Second, he contended the jury's verdict was unreasonable or unsupported by the evidence, invoking s 6(1) of the Criminal Appeal Act 1912.

  • Whether the trial judge erred by failing to give specific alibi directions to the jury, in circumstances where the applicant had not requested such directions at trial
  • Whether the jury's verdict of guilty was unreasonable or could not be supported having regard to the evidence, under s 6(1) of the Criminal Appeal Act 1912
  • Whether leave was required for each ground of appeal, and whether that leave should be granted

Decision

Ground 1: Alibi directions. Because the applicant had not requested alibi directions at trial, leave was required under r 4 of the Criminal Appeal Rules before the ground could be raised on appeal. The Court declined to grant that leave. Macfarlan JA concluded there was no arguable basis for the ground: the trial judge's directions adequately conveyed to the jury the Crown's obligation to disprove the alibi beyond reasonable doubt, and no specific alibi direction was required in the circumstances.

Ground 2: Unreasonable verdict. Leave was granted to pursue this ground, but the Court rejected it. Applying the test from M v The Queen, Macfarlan JA conducted an independent assessment of the trial record and found no reasonable doubt about the applicant's guilt. His Honour placed particular weight on the evidence of Ms Bas, who reported a post-offence admission by the applicant that included a detail, the breakdown of the Toyota Corolla, not mentioned in any news broadcast and explicable only by direct knowledge of the events.

The applicant's alibi case also suffered from an internal inconsistency. In his own police interview, the applicant admitted leaving the friend's unit for a period during the relevant evening. This contradicted the alibi witness Mr Merza's evidence that the applicant had been present throughout the evening, substantially diminishing the alibi's value. The Court was satisfied the jury, properly instructed, was entitled to return the verdict it did.

Orders Made

  • Leave to rely on Ground 1 (alibi directions) declined
  • Leave to appeal on Ground 2 (unreasonable verdict) granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that where an accused does not request specific alibi directions at trial, leave is required to raise the failure as a ground on appeal, and such leave will not be granted without an arguable basis for the complaint.
  • In dismissing the unreasonable verdict ground, the Court applied the established test from M v The Queen: an appellate court must conduct an independent assessment of the evidence and determine whether it is left with any reasonable doubt as to the accused's guilt.
  • A post-offence admission to a friend, particularly one containing accurate details not in the public domain, can constitute compelling evidence capable of supporting a conviction notwithstanding alibi evidence from other witnesses.
  • Where an accused's own out-of-court statements are inconsistent with the account given by an alibi witness, the inconsistency may significantly diminish the weight of that alibi evidence.
  • Under s 6(1) of the Criminal Appeal Act 1912, a verdict is not unreasonable merely because other outcomes were open; the applicant must establish that no reasonable jury, properly instructed, could have returned the verdict.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), ss 5(1)(b), 6(1)
- Criminal Appeal Rules 1952, r 4
- Criminal Procedure Act 1986 (NSW), s 150
- Evidence Act 1995 (NSW), s 38

Cases:
- M v The Queen [1994] HCA 63; 181 CLR 487
- SKA v The Queen [2011] HCA 13; 243 CLR 400
- Papakosmas v The Queen [1999] HCA 37; 196 CLR 297
- R v Kanaan [2005] NSWCCA 385; 64 NSWLR 527
- R v Skaf [2004] NSWCCA 37; 60 NSWLR 86
- ARS v R [2011] NSWCCA 266
- Griffiths v R [2014] NSWCCA 60
- R v Roberts [2001] NSWCCA 163; 53 NSWLR 138
- R v Merrett [2007] VSCA 1
- R v Amyouni (unrep, 18/2/88, NSWCCA)
- R v Harland (unrep, 22/8/90, NSWCCA)
- R v Steeden (unrep, 19/8/94, NSWCCA)