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Court of Criminal Appeal 25 September 2015

Habib v R

[2015] NSWCCA 261

Assault & violence
CRIMINAL LAW CONVICTION APPEAL POINT NOT TAKEN AT TRIAL NEED TO RELY UPON R 4 NO ERROR IN GOOD CHARACTER DIRECTION LEAVE TO RELY UPON R 4 REFUSED.

Citation: Habib v R [2015] NSWCCA 261
Court: NSW Court of Criminal Appeal
Date: 25 September 2015
Judges: Hoeben CJ at CL (with Price J and Button J agreeing)

Background

The appellant was tried in the District Court for attempting to wound his cousin with intent to cause grievous bodily harm, following a street confrontation arising from a long-running financial dispute. CCTV footage and witness evidence showed the appellant emerging from his shop with a knife and making a stabbing motion toward the complainant. The appellant argued he acted out of fear and only intended to frighten, not harm.

The jury convicted him on the wounding with intent count but acquitted him on two further counts relating to injuries suffered by another person present during the altercation. He was sentenced to 18 months' non-parole period followed by an 18-month balance of term.

At trial, the defence called good character evidence, including a witness who described the appellant as a family man of honest and correct character, and written testimonials. The appellant had no criminal record. His counsel concluded the closing address by relying on good character.

  • Whether the trial judge erred by qualifying the good character direction in a way that invited the jury to consider possible uncharged criminal conduct by the appellant, specifically threatening someone with a knife and carrying a knife in a public place on the night in question.
  • Whether, the point not having been raised at trial, the appellant should be granted leave under r 4 of the Criminal Appeal Rules to rely on this ground of appeal.

Decision

Hoeben CJ at CL noted the appellant accepted that the good character direction was otherwise unexceptionable, and accepted that a trial judge may qualify such a direction to put it in perspective in light of the circumstances of the case. The appellant also accepted the trial judge was entitled to qualify the direction because of his acknowledged willingness to engage in criminal conduct that night.

The Court held that the qualification did no more than remind the jury that the positive weight they might give to good character should be tempered by consideration of the appellant's acknowledged earlier conduct on the same evening. The broader direction remained positive and favourable to the appellant, and there was no reference to bad character anywhere in the addresses or the summing up.

The Court found no error in the direction. Even if there were error, there was no indication the jury used the qualification in a prejudicial way. The appellant's acquittal on two of the three counts reinforced this conclusion, as did the fact that defence counsel had not sought a redirection at trial.

Because the ground was based on a bare possibility with no supporting indication in the evidence, addresses, or summing up, the Court refused leave under r 4 of the Criminal Appeal Rules.

Orders Made

• Refused leave for the applicant to rely upon the ground of appeal pursuant to r 4 of the Criminal Appeal Rules

Key Takeaways

  • A trial judge directing the jury on good character is entitled to qualify that direction where the accused's own conduct during the charged events discloses possible further offending, provided the overall direction remains fair and balanced.
  • No error was established in the good character direction where the qualification merely asked the jury to temper the positive weight of good character against acknowledged conduct on the night in question, without any suggestion of broader bad character.
  • Where a ground of appeal was not raised at trial, leave under r 4 of the Criminal Appeal Rules will be refused if the ground rests on a bare possibility and nothing in the record suggests that possibility eventuated.
  • An acquittal on some counts in the same trial can reinforce the conclusion that no miscarriage of justice occurred from an impugned direction on a remaining count.
  • The Court of Criminal Appeal applied the principle from Melbourne v R (1999) 198 CLR 1 that a good character direction may be qualified in light of proved or possible criminal conduct emerging during the trial.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Rules (NSW), r 4

Cases:
- Melbourne v R [1999] HCA 32; 198 CLR 1
- Jubraeel v R [2015] NSWCCA 131
- R v Alkaitis [2004] EWCA Crim 1072
- Regina v Aziz [1996] AC 41