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11
Court of Criminal Appeal 27 April 2016

Hadchiti v R

[2016] NSWCCA 63

Also reported as (2016) 93 NSWLR 671
Homicide
CRIMINAL LAW APPEAL AGAINST CONVICTION MURDER WRITTEN DIRECTIONS TO JURY “QUESTION TRAIL” WHETHER REVERSAL OF ONUS OF PROOF

Citation: Hadchiti v R [2016] NSWCCA 63
Court: NSW Court of Criminal Appeal
Date: 27 April 2016
Judges: Leeming JA; Hall J; Bellew J

Background

The appellant was convicted of murder following a jury trial in October and November 2013. It was not in dispute that he had inflicted the fatal wound to the neck of the deceased, who was his sister's boyfriend. The contested issues at trial were the appellant's intention at the time, whether he acted in self-defence, and whether he was provoked.

The trial judge delivered oral directions to the jury over more than a day and also provided seven pages of written directions, including a "question trail" designed to guide the jury through the key issues. No objection was taken at trial to either the oral or written directions, nor to an unreliability warning given in respect of evidence from members of the appellant's family.

The jury returned a guilty verdict, and the appellant was sentenced to 29 years' imprisonment with a non-parole period of 21 years and 9 months. He sought leave to appeal both conviction and sentence.

  • Whether the written and oral jury directions contained legal error, particularly as to the standard of proof ("beyond reasonable doubt")
  • Whether the written directions reversed or impermissibly altered the onus of proof
  • Whether the trial judge erred in giving an unreliability warning under s 165 of the Evidence Act 1995 (NSW) in respect of family witnesses
  • Whether, if error was established, the Crown could rely on the proviso under s 6 of the Criminal Appeal Act 1912 (NSW) to save the conviction (the proviso allows a conviction to stand despite error if no substantial miscarriage of justice has actually occurred)

Decision

Written jury directions and standard of proof

The Court of Criminal Appeal found that the written directions materially departed from the conventional formulation of the standard of proof. The directions equated "beyond reasonable doubt" with the existence of a "reasonable possibility," but did so without linking that possibility to any statement that it was the Crown's obligation to remove or eliminate it. This is a significant error: the orthodox approach, confirmed by the High Court in Dawson v The Queen (1961) and subsequent authority, is that "beyond reasonable doubt" should not be explained or elaborated upon save in unusual circumstances.

The Court also noted the particular danger of written directions in the jury room. Where directions are both oral and written, the written document tends to "swamp" the oral direction when the jury retires to deliberate. The written question trail therefore assumed particular importance, making its errors more consequential.

Unreliability warning

The Court declined to grant leave to raise the unreliability warning as a separate ground of appeal. It was not persuaded that the warning amounted to such a fundamental departure from the essential requirements of the law as to go to the root of the proceedings.

The proviso

The Court rejected the Crown's reliance on the proviso. Where a direction on the standard or onus of proof is substantially wrong, it will rarely be appropriate for the strength of the evidence against the accused to render the error harmless. The effect of the flawed written direction was to deny the appellant the right to have the jury properly assess whether the Crown had proved the essential elements beyond reasonable doubt. The Court held this placed the case in a category incapable of engaging the proviso. It also found that the possibility the appellant had been denied a chance of acquittal that was fairly open to him could not be excluded beyond reasonable doubt.

Sentencing observation

Although the sentence appeal did not require formal determination, the Court noted that the sentencing judge had erred by treating the appellant's maintenance of his defence at trial as a factor increasing his moral culpability. An accused person is entitled to plead not guilty and run a defence without that attracting a heavier sentence.

Orders Made

  • Leave to appeal against conviction granted, confined to ground 1
  • Appeal against conviction allowed
  • Conviction for murder quashed
  • Matter remitted to the Supreme Court for retrial

Key Takeaways

  • Written jury directions carry heightened risk: where oral and written directions overlap, the written version tends to dominate jury deliberations, making any error in the written document more significant than it might otherwise appear.
  • A direction that equates "beyond reasonable doubt" with the existence of a "reasonable possibility," without stating that it is the Crown's burden to eliminate that possibility, constitutes a material departure from the orthodox standard of proof.
  • Established authority confirms that "beyond reasonable doubt" should not be explained or elaborated upon by trial judges save in unusual circumstances, and this decision reinforces that principle.
  • Where a misdirection goes to the onus or standard of proof, the Court of Criminal Appeal confirmed it will rarely be appropriate to apply the proviso and uphold the conviction based on the weight of the evidence against the accused.
  • An accused person's entitlement to defend themselves at trial cannot, consistent with principle, be used to increase their moral culpability at sentencing.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 23
- Criminal Appeal Act 1912 (NSW), s 6
- Criminal Appeal Rules, r 4
- Evidence Act 1995 (NSW), ss 38, 128, 165
- Jury Act 1977 (NSW), s 55B
- Jury Directions Act 2015 (Vic), s 63

Cases
- Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; 246 CLR 92
- Baini v The Queen [2012] HCA 59; 246 CLR 469
- Darkan v The Queen [2006] HCA 34; 227 CLR 373
- Dawson v The Queen (1961) 106 CLR 1
- Filippou v The Queen [2015] HCA 29; 89 ALJR 776
- Green v The Queen (1971) 126 CLR 28
- Handlen v The Queen [2011] HCA 51; 245 CLR 282
- Justins v The Queen [2010] NSWCCA 242; 79 NSWLR 544
- Krakouer v The Queen [1998] HCA 43; 194 CLR 202
- Lin v Tasmania [2015] TASCCA 13
- Mortada v R [2014] NSWCCA 36
- Siganto v The Queen [1998] HCA 74; 194 CLR 656
- Weiss v The Queen [2005] HCA 81; 224 CLR 300