Citation: Majok v R [2015] NSWCCA 160
Court: Court of Criminal Appeal, New South Wales
Date: 19 June 2015
Judges: Hoeben CJ at CL; Hall J; R A Hulme J (principal judgment)
Background
The applicant was convicted by a jury in September 2012 of assault occasioning actual bodily harm in company, and causing grievous bodily harm with intent. The offences arose from two separate attacks in Blacktown in the early hours of 31 October 2009, following an altercation at Blacktown railway station between groups of Sudanese and Caucasian men. The applicant was sentenced to an overall term of 9 years 6 months with a non-parole period of 5 years.
The Crown's case was circumstantial. No weapons were recovered, and no DNA or blood evidence linked the applicant or his co-accused to either assault. The Crown relied on witness identification of the assailants as Sudanese men who fled to a particular car, the registration of which was recorded by bystanders and traced to a vehicle driven by a woman who confirmed she had transported the applicant and two others to the relevant locations that night.
Neither the applicant nor his co-accused gave evidence at trial. Their common position was that they had alighted from the car near each assault but were not involved as participants. The applicant filed his application for leave to appeal in January 2015, well outside the standard period. He sought an extension of time, and the sole ground of appeal concerned alleged errors in the trial judge's summing up.
Legal Issues
- Whether the trial judge's summing up produced a miscarriage of justice by expressing agreement with Crown-favourable matters and undermining defence arguments.
- Whether an extension of time to file the application for leave to appeal should be granted.
- Whether leave to appeal against conviction should be granted.
Decision
The Court granted the extension of time to file the notice of application, noting that the delay was attributable largely to the actions and inactions of the applicant's lawyers rather than to any fault on the part of the applicant himself.
On the merits of the proposed appeal, the Court examined each specific criticism of the summing up raised by the applicant. R A Hulme J noted that only one of those complaints had actually been raised at trial: the trial judge's comment about the possibility of blood transferring from weapons to the getaway car. That comment was made to correct what the Court characterised as an excessive and unsupported submission made by defence counsel in closing address. The judge's intervention was warranted given that the evidence did not support the graphic descriptions of blood that counsel had put to the jury.
The remaining complaints had been raised for the first time on appeal and were subject to the rule in R v Zorad, which requires leave before new grounds can be agitated on appeal. The Court assessed each complaint and found none had merit. Certain passages in the summing up identified as improperly favouring the Crown were, upon examination, either neutral observations or endorsements of defence submissions. No combination of the identified matters, nor their cumulative effect, supported a conclusion that the summing up was productive of a miscarriage of justice.
Leave to appeal was refused.
Orders Made
- Time to file the Notice of Application for Leave to Appeal extended to 19 January 2015.
- Leave to appeal against conviction refused.
Key Takeaways
- A summing-up complaint must be assessed in the context of the entire charge to the jury, not by isolating particular passages; no individual passage or combination of passages here was found to have caused a miscarriage of justice.
- Where only one complaint was raised at trial, the Court of Criminal Appeal applied the requirement that leave be obtained before new grounds are agitated on appeal for the first time.
- A trial judge is entitled to correct an impressionistic or unsupported submission made by counsel in closing address, particularly where the evidence does not bear out the factual assertions put to the jury.
- Delay in filing an application for leave to appeal caused by lawyers rather than the applicant personally may support the grant of a time extension, notwithstanding the Crown's reliance on the principle of finality.
- In refusing leave, the Court confirmed that merit remains a central consideration alongside the explanation for delay; the absence of any arguable ground was independently sufficient to refuse leave.
Legislation and Cases Referenced
Cases:
- Domican v The Queen [1992] HCA 13; 173 CLR 555
- R v Heuston (1995) 81 A Crim R 387
- R v Meher [2004] NSWCCA 355
- R v Sukkar [2005] NSWCCA 54
- R v Zorad (1990) 19 NSWLR 91
- Robinson v R [2006] NSWCCA 192; 162 A Crim R 88
- RPS v The Queen [2000] HCA 3; 199 CLR 620
Legislation: No specific legislation was cited in the judgment.