Citation: Barber v R; Zraika v R [2016] NSWCCA 125
Court: Court of Criminal Appeal, New South Wales
Date: 23 June 2016
Judge(s): Bathurst CJ, Basten JA, Button J
Background
Four accused were tried together for offences arising from a fatal shooting in Pendle Hill in October 2013. The shooter was convicted of murder. A second accused, charged with murder and soliciting the murder, was the subject of a hung jury after several days of deliberation.
The two applicants, April Barber and Amin Zraika, faced separate but related charges: incitement to murder and concealing a serious indictable offence respectively. Critically, their charges were structured so that a guilty verdict against either was only possible if the jury first found the co-accused guilty. Because the jury could not agree on that co-accused, the trial judge concluded that the only available verdicts for the applicants were acquittals or a further hung jury.
Acting on that reasoning, the trial judge discharged the jury without directing them to consider the charges against Barber and Zraika at all. The applicants sought to appeal that decision, arguing they were entitled to the verdict the jury might have returned in their favour.
Legal Issues
- Whether the trial judge erred in discharging the jury with respect to the applicants without first directing the jury to consider the charges against them
- Whether, even if the decision to discharge was erroneous, any effective relief remained available after the jury had already been discharged and released
- Whether a stay of the discharge order could preserve the jury's availability pending appeal
- Whether a permanent stay of proceedings against the applicants was an appropriate remedy in the circumstances
Decision
The Court accepted that the structural relationship between the charges was central to the judge's reasoning. Because the applicants' guilt depended on a prior finding of guilt against the co-accused, and because the jury had been unable to agree on that co-accused, the only affirmative outcome available to the jury on the applicants' charges was acquittal. The trial judge's conclusion that there was therefore no utility in sending those charges to the jury was not demonstrated to be an error warranting appellate intervention.
On the question of relief, the Court acknowledged the difficulty created by the timing of events. The discharge had already taken effect and the jury had been released before any effective stay could be put in place. Although the Court made orders the morning after the discharge directing the Sheriff to notify jurors that the discharge was stayed and that they should not discuss the case, those orders were made after the jury had already dispersed. The Court found that in these circumstances, the practical ability to reconstitute the jury and proceed to verdicts had been lost.
The Court confirmed that appeals against jury discharge decisions under section 5G of the Criminal Appeal Act 1912 (NSW) are competent in principle, but that the remedy of reinstating the jury becomes unavailable once the jury is released. Speed is essential to any such application: once a jury disperses, the court's ability to grant meaningful relief is severely curtailed.
On the application for a permanent stay of proceedings, the Court declined to grant one. The Director of Public Prosecutions had not received notice of that application, and the decision whether to present a fresh indictment was an independent prosecutorial discretion not within the Court's control. The Court noted explicitly that dismissal of the appeal should not be taken to influence any future permanent stay application the applicants might bring if further proceedings were commenced.
Orders Made
• The appeal was dismissed.
Key Takeaways
- A trial judge may, in appropriate circumstances, discharge a jury without directing it to consider charges against all accused where the structure of the indictment makes any guilty verdict against those accused legally impossible given the jury's inability to agree on a predicate charge.
- Appeals against jury discharge decisions are available under section 5G of the Criminal Appeal Act 1912 (NSW), but the practical remedy of reinstating the jury depends entirely on whether the jury remains available. Once jurors are released, that remedy is effectively foreclosed.
- The Court of Criminal Appeal confirmed that applications to stay a discharge order must be pursued with urgency. Any delay between the discharge taking effect and the stay being obtained is likely to be fatal to obtaining meaningful relief.
- Dismissal of a section 5G appeal does not preclude the affected accused from seeking a permanent stay of any fresh proceedings, and the Court noted expressly that such an application should receive independent and unfettered consideration if fresh charges are laid.
- Under section 55F of the Jury Act 1977 (NSW), where a jury falls below eleven members, any verdict must be unanimous, a requirement that shaped the practical deliberations in this trial.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), ss 5F, 5G, 11
- Jury Act 1977 (NSW), ss 22, 53C, 55D, 55DA, 55F, 68C
Cases:
- House v The King (1936) 55 CLR 499
- Smith v The Queen (1970) 121 CLR 572
- R v Cheng (1999) 48 NSWLR 616
- R v Abdul-Razzak [2006] NSWCCA 195
- Dietz v Bouldin 579 US _ (2016)
- Remmer v United States 347 US 227 (1954)
- Smith v Massachusetts 543 US 462 (2005)