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Court of Criminal Appeal 10 July 2020

Petryk v R

[2020] NSWCCA 157

Assault & violenceHomicideTheft & propertyFirearms & weapons

Citation: Petryk v R [2020] NSWCCA 157
Court: Court of Criminal Appeal, NSW
Date: 10 July 2020
Judges: Bathurst CJ; Hoeben CJ at CL; Adamson J

Background

The applicant was convicted of murder by a jury following a trial in Newcastle in 2017. The Crown alleged that he organised and participated in an armed robbery of a residential address, during which he shot and killed the occupant. Two witnesses who were themselves criminally involved in the events gave evidence for the Crown, one under a grant of indemnity and the other having received a reduced sentence.

The trial had an unusual course. The applicant's original defence counsel withdrew mid-trial, after the co-accused obtained a directed verdict of acquittal on the murder count. A new barrister stepped in to conduct the defence from that point, including delivering the closing address to the jury.

The co-accused ultimately pleaded guilty to the armed robbery count in the absence of the jury, a precaution the trial judge took to avoid prejudice to the applicant. The applicant was found guilty on both counts and sought leave to appeal on two grounds arising from the conduct of the trial.

  • Whether the trial judge erred in preventing defence counsel from making closing submissions to the jury on matters that had not been put to a key Crown witness during cross-examination (the Browne v Dunn rule)
  • Whether the trial judge's summing-up caused a miscarriage of justice by failing to raise a hypothesis consistent with the applicant's innocence
  • Whether ground 1 constituted a question of law alone (and thus required no leave), or a mixed question of fact and law (requiring leave)
  • Whether leave should be granted under rule 4 of the Criminal Appeal Rules in respect of ground 2, given no complaint about the summing-up was raised at trial

Decision

Ground 1: Restriction on closing submissions

The Court of Criminal Appeal granted leave to appeal on ground 1, accepting the principles at stake were important. The rule in Browne v Dunn requires that if a party intends to contradict a witness or to suggest that a witness is lying, that matter must be put to the witness in cross-examination. Where defence counsel sought to advance a submission in closing that had not been put to the Crown's key witness, the trial judge told counsel the approach was not open. The Court of Criminal Appeal found no error in that ruling. Because the relevant submission had not been put to the witness during cross-examination, the trial judge was correct to restrict it in closing address. The appeal on this ground was dismissed.

The Court also rejected the applicant's characterisation of ground 1 as a question of law alone. Applying the test from Williams v The Queen, and consistent with the Court's earlier reasoning in R v PL, the question of whether the trial judge correctly applied the Browne v Dunn principles necessarily involved an assessment of the facts. It was therefore a mixed question of fact and law, requiring leave under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW).

Ground 2: Alleged omission in the summing-up

The applicant argued that the trial judge's summing-up failed to raise a hypothesis consistent with innocence, causing a miscarriage of justice. The Court refused leave to appeal on this ground. The decisive factor was that the new defence counsel, who was present throughout the summing-up, made no complaint about the direction and did not request any alteration or addition. The Court was not prepared to allow the alleged omission as a ground of appeal in those circumstances.

Orders Made

  • Time for filing the notice of appeal/notice of application for leave to appeal extended to 9 March 2020
  • Leave to appeal granted on ground 1
  • Leave refused under rule 4 of the Criminal Appeal Rules on ground 2
  • Appeal on ground 1 dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that a closing submission cannot properly advance a matter that was not put to the relevant witness in cross-examination, consistent with the rule in Browne v Dunn. A trial judge is entitled to restrict such a submission.
  • A ground of appeal framed as a failure to apply correct legal principles will generally constitute a mixed question of fact and law, not a question of law alone, where the application of those principles requires an assessment of the facts of the particular case.
  • Refusing leave on ground 2, the Court treated the absence of any complaint by defence counsel during or after the summing-up as a significant bar to raising the alleged omission on appeal. Where no request was made to alter or supplement a direction at trial, appellate courts will be slow to grant leave to ventilate that complaint.
  • Under rule 4 of the Criminal Appeal Rules, leave is required to raise a ground of appeal concerning a matter that was not objected to at trial. That threshold was not met here.
  • The decision illustrates the procedural complications that can arise when counsel withdraws mid-trial. The transition between counsel did not, of itself, relieve the defence of compliance with the Browne v Dunn obligations arising from the cross-examination already conducted.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), ss 5, 10
- Criminal Appeal Rules, rule 4

Cases
- Barca v The Queen (1975) 133 CLR 82
- Browne v Dunn (1893) 6 R 67
- Cleland v The Queen (1982) 151 CLR 1
- Domican v The Queen (1992) 173 CLR 555
- McKell v The Queen (2019) 264 CLR 307
- MWJ v The Queen (2005) 80 ALJR 329
- R v Birks (1990) 19 NSWLR 677
- R v Nikolovski (No 2) [2017] NSWSC 1451
- R v PL (2009) 199 A Crim R 199
- R v Saffron (1988) 17 NSWLR 395
- Williams v The Queen (1986) 161 CLR 278