Citation: Sahartor v R [2018] NSWCCA 236
Court: Court of Criminal Appeal, New South Wales
Date: 19 October 2018
Judges: Basten JA at [1]; R A Hulme J at [24]; Hamill J at [33]
Background
The applicant was charged with two offences arising from events in the early hours of 8 March 2016. The first charge was attempted break and enter of a residential premises with intent to steal, in circumstances of aggravation. The second was being armed with a weapon (a knife) with intent to commit the indictable offence of intimidation, contrary to s 114(1)(a) of the Crimes Act 1900 (NSW).
The prosecution case was that the applicant had been caught attempting to enter the home of the complainant and his wife. The complainant pursued him by car and then on foot, and the applicant, once confronted, produced a knife and pointed it at the complainant before fleeing. The applicant's case was that the complainant had attacked him first, that the complainant had dropped the knife during a struggle, and that the applicant had picked it up and used it to repel what he saw as an ongoing threat. Self-defence was raised.
The jury acquitted the applicant on the break and enter charge but convicted him on the armed-with-intent charge. He was sentenced to 13 months non-parole, which had expired before the appeal was heard.
Legal Issues
- Whether the trial judge's summing up left open a factual basis for conviction on count 2 (armed with intent) that had never been agitated by either party, without adequately directing the jury on how that basis would operate
- Whether the directions on self-defence were adequate in circumstances where the judge identified an alternative route to conviction mid-summing-up without explaining the relevant facts or how the law applied to them
- Whether the verdict was unreasonable in light of the jury's acquittal on the break and enter charge
- Whether the conviction was consistent with the acquittal on count 1
Decision
The Court of Criminal Appeal upheld the appeal on grounds relating to the adequacy of the summing up. The critical problem arose from a passage in the judge's directions where, having correctly noted that a guilty verdict on count 1 would sit uncomfortably with a not guilty verdict on count 2, the judge then raised the theoretical possibility of the reverse: that the jury could convict on count 2 even if they acquitted on count 1, if they found the applicant had not acted reasonably in his response to the complainant. The judge noted this had not been argued by either party, but told the jury it remained "strictly open" to them.
The difficulty was that this alternative factual case, essentially that the applicant's use of the knife was an unjustified act of intimidation entirely divorced from whether he had been the intruder, had not been put to the applicant at trial and had not been addressed by the Crown or the defence. Having raised it, the judge did not direct the jury on the facts that would be relevant to that conclusion, or on how self-defence would apply to it. The Court found that leaving this pathway to conviction open, without adequate guidance, materially compromised the fairness of the trial.
The Court drew on established authority (including Robinson v R, King v The Queen, and R v Mehar) for the proposition that introducing a new or substantially different factual case at a late stage of trial, particularly in summing up, can cause a miscarriage of justice. The principle applies even where the misdirection was not contested at trial. Leave was granted under the relevant rule to argue the grounds despite their late introduction.
Given the conclusions on the summing up grounds, the Court did not need to resolve the unreasonable verdict ground. All three judges agreed on the orders.
Orders Made
• Grant leave under rule 4 to argue grounds 2 and 3 of appeal
• Uphold grounds 2 and 3 of appeal
• Agree with the orders proposed by the presiding judge
Key Takeaways
- A trial judge who raises a new factual route to conviction in the summing up, without the Crown having advanced it, must provide adequate directions on the facts and legal elements relevant to that alternative, including how defences such as self-defence apply to it.
- Where two counts arise from closely connected facts, directions on their interaction carry particular weight: telling a jury that an acquittal on one charge is consistent with a conviction on another requires care, and cannot be left as a bare statement without accompanying guidance.
- The Court of Criminal Appeal confirmed that the principle from King v The Queen and Robinson v R applies in this context: a conviction cannot stand where the trial has miscarried because a new or unargued factual case was introduced at the eleventh hour, even if counsel did not object at the time.
- Raising self-defence puts the Crown to proof that the conduct was not a reasonable response; when a judge identifies an alternative basis for conviction that bypasses the self-defence analysis run at trial, the jury must be told how the defence applies to that alternative.
- Under s 114(1)(a) of the Crimes Act 1900 (NSW), being armed with a weapon with intent to commit an indictable offence carries a maximum of seven years imprisonment, distinct from the more serious s 33B(1) offence of using or threatening injury with intent, which carries twelve years.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 33B, 114
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 7, 13
- Crimes Act 1900 (NSW), s 418 (self-defence)
Cases
- Robinson v R [2006] NSWCCA 192; 162 A Crim R 88
- King v The Queen (1986) 161 CLR 423; [1986] HCA 59
- R v Mehar [2004] NSWCCA 355
- Tran v The Queen (2000) 105 FCR 182
- R v Solomon [1980] 1 NSWLR 321
- R v RTB [2002] NSWCCA 104
- Carr v The Queen [2000] TASSC 183; (2000) 117 A Crim R 272