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15
Court of Criminal Appeal 18 September 2019

Hamide v R

[2019] NSWCCA 219

Also reported as (2019) 101 NSWLR 455
Assault & violence
CRIMINAL LAW APPEAL AGAINST CONVICTION THREE DISCHARGE APPLICATIONS REFUSED OTHER IRREGULARITIES MEANING OF “IRREGULARITIES” CUMULATIVE EFFECT OF IRREGULARITIES

Citation: Hamide v R [2019] NSWCCA 219
Court: NSW Court of Criminal Appeal
Date: 18 September 2019
Judges: Bathurst CJ, Bell P, Davies J

Background

The appellant was convicted by a District Court jury in late 2017 on two counts: wounding with intent to cause grievous bodily harm, and soliciting a third party to commit murder. He was sentenced to an aggregate term of 13 years imprisonment with a non-parole period of 9 years and 6 months.

During the trial, prejudicial evidence emerged on several occasions that the appellant contended was unfairly damaging. His trial counsel made multiple applications to have the jury discharged following each such event. The trial judge refused all of those applications and instead gave directions to the jury, both during the trial and in the summing-up, aimed at curing any prejudice.

The appellant sought leave to appeal against conviction on a single ground: that the cumulative effect of these "irregularities" in the evidence, together with the trial judge's repeated refusals to discharge the jury, occasioned a substantial miscarriage of justice.

  • Whether the events complained of constituted "irregularities" capable of prejudicing the appellant's fair trial
  • Whether the trial judge's directions to the jury were sufficient to cure any prejudice arising from those irregularities
  • Whether the trial judge's refusals to discharge the jury occasioned a substantial miscarriage of justice
  • Whether the standard of review on a conviction appeal challenging a refusal to discharge a jury requires the appellant to demonstrate error in the House v The King sense
  • Whether the proviso to s 6(1) of the Criminal Appeal Act 1912 (NSW) has any role to play in such appeals

Decision

The Court unanimously granted leave to appeal but dismissed the appeal. All three judges agreed that not every event complained of as an "irregularity" warranted that characterisation, and that several of the alleged irregularities were not materially prejudicial in the context of the trial as a whole.

To the extent that genuinely prejudicial evidence did come before the jury, the Court was satisfied that the trial judge's directions had a sufficiently curative effect. The Court noted that jury directions can and regularly do remedy the risk of prejudice arising from inadvertent evidence, and there was no reason to conclude the jury had failed to perform its function properly here.

On the standard of review, Bathurst CJ held that where an appellant challenges a refusal to discharge the jury, the appellate court must assess whether the refusal occasioned the risk of a substantial miscarriage of justice. On that approach, there is no separate requirement to identify error in the House v The King sense, and there would be no room for the proviso to s 6(1) if such a risk is established. Bell P (with whom Davies J agreed) held that the applicable principles in such appeals are those in Crofts v The Queen, not the House v The King discretionary error principles, though Bell P considered it unnecessary to resolve all tensions between Maric, Crofts, and the statutory language.

The Crown's case was assessed as very strong. The evidence of the two principal witnesses, if accepted as credible (which the jury's verdict indicated it was), provided direct proof of both the stabbing and the solicitation to murder. The Court concluded that the matters underpinning the discharge applications could not materially have affected the jury's assessment of those witnesses' credibility. There was neither a substantial miscarriage of justice nor a miscarriage of justice.

Orders Made

• Leave to appeal granted
• Appeal dismissed

Key Takeaways

  • In a conviction appeal challenging a trial judge's refusal to discharge a jury, the appellate court applies the principles in Crofts v The Queen, asking whether the refusal occasioned the risk of a substantial miscarriage of justice, rather than the House v The King discretionary error standard.

  • Not every inadvertent emergence of potentially prejudicial evidence during a trial constitutes an "irregularity" capable of warranting a discharge; much depends on the seriousness of the event, its timing, its deliberateness, and the capacity of judicial directions to overcome the prejudice.

  • Judicial directions to a jury are capable of providing a sufficiently curative effect, and appellate courts will assess their likely practical impact in the context of the trial as a whole.

  • Where the appellate court finds a substantial miscarriage of justice arising from a refusal to discharge, Bathurst CJ indicated there would be no separate need to identify House v The King error and no room for the proviso to s 6(1) of the Criminal Appeal Act 1912 (NSW) to operate.

  • The strength of the properly admitted evidence at trial is a relevant consideration: where that evidence independently and powerfully establishes guilt, the cumulative effect of irregularities is less likely to have materially infected the verdict.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), ss 5, 5G, 6
- Crimes Act 1958 (Vic), s 568

Key Cases
- Crofts v The Queen (1996) 186 CLR 427
- Maric v The Queen (1978) 52 ALJR 631
- House v The King (1936) 55 CLR 499
- Weiss v The Queen (2005) 224 CLR 300
- Webb v The Queen (1994) 181 CLR 41
- The Queen v Glennon (1992) 173 CLR 592
- Gilbert v The Queen (2000) 201 CLR 414
- Wilde v The Queen (1988) 164 CLR 365
- Nudd v The Queen [2006] HCA 9
- Lane v The Queen [2018] HCA 28
- Barber v R; Zraika v R [2016] NSWCCA 125
- Curran v R [2017] NSWCCA 123
- Hughes v R [2018] NSWCCA 2
- Wilson v R [2019] NSWCCA 38
- Scott v R [2017] NSWCCA 296
- Samadi v The Queen [2008] NSWCCA 330
- Younan v R [2016] NSWCCA 248
- R v Bartle [2003] NSWCCA 329
- Qing An v Regina [2007] NSWCCA 53