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Court of Criminal Appeal 25 June 2021

Kayirici v R

[2021] NSWCCA 127

Theft & propertyTraffic & driving
CRIME APPEALS APPEAL AGAINST CONVICTION APPEALS APPEAL AGAINST CONVICTION APPEALS

Citation: Kayirici v R [2021] NSWCCA 127
Court: NSW Court of Criminal Appeal
Date: 25 June 2021
Judges: Hoeben CJ at CL, Harrison J, Ierace J (all agreeing)

Background

The applicant stood trial in the District Court on three counts: break and enter and commit a serious indictable offence (stealing), receiving stolen property knowing it to be stolen, and driving dangerously in the knowledge that police were in pursuit. The jury returned a special verdict of "larceny or receiving" under s 121 of the Crimes Act 1900 (NSW) on the first two counts, and found the applicant guilty on the driving count. He was sentenced to an aggregate term of five years' imprisonment with a non-parole period of three years and nine months.

The Crown case rested on telecommunications evidence placing the applicant near the burgled Vaucluse residence shortly before the alarm was triggered, stolen items found in his vehicle, and foreign currency from the residence in his wallet. The high-speed police pursuit through the Bondi and Bronte areas, during which speeds exceeded 150 km/h in 50 and 60 km zones, was the subject of substantial evidence including police officer testimony.

The applicant sought leave to appeal his conviction on five grounds, primarily targeting conduct during the trial itself rather than the sufficiency of the evidence against him.

  • Whether the trial judge should have discharged the jury after the Crown introduced evidence of the applicant's driver disqualification (bad character evidence), given that defence counsel had been on notice and did not object.
  • Whether the trial judge's refusal to adjourn proceedings so the applicant could call an expert witness occasioned a miscarriage of justice, particularly where no notice of a defence response had been filed.
  • Whether the trial judge misdirected the jury in answering a jury question (MFI 8) about the circumstances in which a not guilty verdict was available.
  • Whether the trial judge's summing-up was so unbalanced as to have created a substantial risk that the jury was improperly persuaded of the applicant's guilt.
  • Whether comments made by the trial judge in proceedings after conviction gave rise to an apprehension of bias affecting both the trial and the sentencing exercise.

Decision

Ground 1 (bad character evidence): Leave to appeal was refused. The Court found no error warranting discharge of the jury. Defence counsel had been on notice of the evidence before it was tendered and did not object at trial. In those circumstances, no substantial miscarriage of justice arose.

Ground 2 (adjournment for expert witness): Leave to appeal was refused. The applicant had failed to file a Defence Response as required under the Criminal Procedure Act 1986 (NSW), and no notice was given that an expert would be called. The trial judge's refusal of the adjournment application did not occasion a miscarriage of justice in those circumstances.

Ground 3 (jury misdirection): Leave to appeal was refused. The Court did not find error in the manner in which the trial judge answered the jury's question.

Ground 4 (unbalanced summing-up): Leave to appeal was granted and the appeal succeeded on this ground. The Court found that the summing-up was unbalanced in a way that created a substantial risk that the jury was persuaded of the applicant's guilt by the trial judge's approach rather than by their own assessment of the evidence. This constituted a miscarriage of justice under s 6 of the Criminal Appeal Act 1912 (NSW), notwithstanding the strength of the Crown case.

Ground 5 (apprehension of bias): Leave to appeal was refused. The trial judge's comments were made after the verdicts were delivered, in the context of the sentencing proceedings. While a trial judge is entitled to hold and express views about the evidence, the Court found no logical connection between the comments and any feared deviation from impartiality during the trial itself. The comments were regarded as innocuous in context, and were made in sentence proceedings where no objection was available.

The Court noted that, given the non-parole period had expired before the hearing and the total sentence was due to expire within three months of the decision, there was little utility in ordering a fresh trial.

Orders Made

  • Leave to appeal against conviction refused on grounds 1, 2, 3, and 5.
  • Leave to appeal against conviction granted on ground 4 pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).
  • Appeal against conviction allowed.
  • Conviction quashed.

Key Takeaways

  • An unbalanced summing-up can constitute a miscarriage of justice sufficient to quash a conviction even where the Crown case against the accused was strong.
  • Where defence counsel was on notice of potentially prejudicial evidence and did not object at trial, a ground of appeal based on failure to discharge the jury will face a significant obstacle.
  • Failure to file a Defence Response under the Criminal Procedure Act 1986 (NSW) is a relevant consideration when a trial court refuses an adjournment sought to permit a defence expert to be called without prior notice.
  • Comments made by a trial judge after verdicts have been delivered, in the context of sentencing proceedings, do not automatically establish apprehended bias affecting the earlier trial. The test requires identifying both the specific matter said to cause partiality and a logical connection to a deviation from impartial decision-making.
  • Where a sentence has substantially expired by the time a conviction appeal is heard, the Court of Criminal Appeal may decline to order a retrial on the basis that no utility remains in doing so.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 51B, 112, 121, 188
- Criminal Appeal Act 1912 (NSW), s 6
- Criminal Procedure Act 1986 (NSW), ss 141, 143, 148
- Evidence Act 1995 (NSW), s 135
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases:
- Amagwula v R [2019] NSWCCA 156
- Hamide v R (2019) 101 NSWLR 455; [2019] NSWCCA 219
- McKell v The Queen (2019) 264 CLR 307; [2019] HCA 5
- Medich v R [2021] NSWCCA 36
- Miller v R (2015) 252 A Crim R 486; [2015] NSWCCA 206
- MK v R [2018] NSWCCA 105
- Picken v R [2007] NSWCCA 319
- Potier v R [2015] NSWCCA 130
- RWB v The Queen (2010) 202 A Crim R 209; [2010] NSWCCA 147