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Court of Criminal Appeal 19 November 2021

Zhou v R

[2021] NSWCCA 278

Firearms & weapons
CRIMINAL LAW CONVICTION APPEAL ELEMENTS OF THE OFFENCE WRITTEN DIRECTIONS TO JURY QUESTION TRAIL NO ORAL EXPLANATION OF DIRECTIONS

Citation: Zhou v R [2021] NSWCCA 278
Court: NSW Court of Criminal Appeal
Date: 19 November 2021
Judge(s): Beech-Jones CJ at CL (lead judgment), Davies J, Wilson J

Background

The appellant was convicted in the District Court on one count of discharging a firearm with intent to cause grievous bodily harm, contrary to s 33A(1)(a) of the Crimes Act 1900. He was sentenced to eight years' imprisonment with a non-parole period of six years. The Crown case was that the appellant shot the victim at close range outside his Canley Vale home during a dispute over money, with DNA evidence, CCTV footage, and the victim's earlier police statements linking the appellant to the shooting. The appellant denied any involvement.

At trial, the victim gave evidence that he could not remember the incident and did not implicate the appellant. The Crown was granted leave to cross-examine the victim and tendered three of his prior statements, the first two of which formed the backbone of the Crown case. The appellant exercised his right to silence at trial, though his recorded interview from the time of arrest was tendered.

The central issue on appeal concerned how the trial judge directed the jury on the essential elements of the offences. Rather than orally explaining the directions at trial, the judge distributed a written question trail to the jury, allowed them ten minutes to read it privately in the jury room, and thereafter made only brief and incidental references to its contents during the oral summing-up.

  • Whether the trial miscarried because the trial judge relied solely on written directions, read privately by the jury in the jury room, to direct them on the essential elements of the offences, without any oral explanation or substantive elaboration of those directions
  • Whether leave should be granted to raise a ground of appeal not taken at trial
  • Whether the appropriate remedy was acquittal or a new trial

Decision

The Court of Criminal Appeal allowed the appeal, with all three judges agreeing on both the outcome and the reasoning. The Crown conceded the appeal, accepting that the decision of the same court in Trevascus v Regina [2021] NSWCCA 104 governed the outcome. Beech-Jones CJ at CL found those concessions to be correct.

Applying Trevascus, the court found that the trial judge's approach to directing the jury was legally deficient. The judge had not, at any point during the oral summing-up, read out, further explained, or made any substantive reference to the contents of the question trails. Critically, the directions on the essential elements of the offence, including the meaning of intent and grievous bodily harm, were contained only in the written document the jury read privately. This meant the jury received no oral exposition of the law they were required to apply.

Beech-Jones CJ at CL noted that the deficiency was compounded by the nature of the charge. Because the victim was shot from behind, there was a genuine issue about whether the appellant harboured the requisite intent to cause grievous bodily harm. The intent element was therefore not straightforward, and the failure to orally explain or expand on it was not a mere technicality. Whether that failure was characterised as an error in law or an irregularity, it amounted to a miscarriage of justice in either case.

On remedy, the court declined to enter an acquittal despite the appellant having served close to two-thirds of his non-parole period. The court ordered a new trial, citing the seriousness of the charge, the strength of the Crown case, and the circumstances in which the error arose.

Orders Made

  • Leave granted to raise ground 1 of the notice of appeal
  • Appeal allowed
  • Conviction quashed
  • New trial ordered
  • Matter listed in the District Court Arraignments List at Campbelltown on 9 December 2021 at 9:30 am

Key Takeaways

  • Directing a jury solely through a written question trail, distributed for private reading without any oral explanation or substantive elaboration, can constitute a miscarriage of justice warranting the quashing of a conviction.
  • The Court of Criminal Appeal confirmed and applied its earlier decision in Trevascus v Regina [2021] NSWCCA 104, treating that case as authoritative on the obligations of trial judges when using written jury directions.
  • Where an offence involves a contested mental element, the failure to orally explain or expand on directions concerning intent carries particular weight in the miscarriage analysis.
  • A conviction will be quashed even where the error was not raised at trial, provided the appellate court grants leave. Here, the Crown conceded leave was appropriate, and the court agreed.
  • The seriousness of the underlying charge and the strength of the Crown evidence are relevant considerations when the court determines whether to enter an acquittal or order a new trial after quashing a conviction.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33A(1)(a), 35(4), 93G(1)(c)
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Evidence Act 1995 (NSW), s 38
- Jury Act 1977 (NSW)
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.1

Cases:
- Trevascus v Regina [2021] NSWCCA 104
- WX v R [2020] NSWCCA 142
- GBF v The Queen [2020] HCA 40; (2020) 94 ALJR 1037
- Hofer v The Queen [2021] HCA 36
- Edwards v The Queen [2021] HCA 28
- Lee v The Queen (2014) 253 CLR 455
- Bourke (a pseudonym) v R [2021] NSWCCA 145
- Willmont v R (1914) 10 Cr App R 173