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Court of Criminal Appeal 26 August 2022

R v Houda

[2022] NSWCCA 179

Homicide
CRIME APPEALS APPEAL AGAINST CONVICTION UNREASONABLE VERDICT WHETHER VERDICT SUPPORTED BY EVIDENCE MISCARRIAGE OF JUSTICE

Citation: Houda v R [2022] NSWCCA 179
Court: NSW Court of Criminal Appeal
Date: 26 August 2022
Judges: Ward P (at [1]); Adamson J (at [224]); Dhanji J (at [260])

Background

The appellant was tried jointly with three co-accused in the District Court on a charge of attempting to cause an explosion or fire with intent to murder the victim, contrary to s 30 of the Crimes Act 1900 (NSW). The Crown alleged that all four accused had entered a joint criminal enterprise to murder the victim, and that during the evening of 31 January and early hours of 1 February 2015, an attempt was made to carry out that plan by placing LPG gas and petrol around the victim's Nissan Navara while he slept inside it at Picnic Point. No fire was started and the victim was not physically harmed.

The appellant's co-accused included the victim's then-wife, a friend of the then-wife, and a man who lived in the same apartment complex as the appellant. All four were found guilty of count 1 following a seven-day jury deliberation. The appellant was sentenced to 11 years and 6 months imprisonment with a non-parole period of 7 years and 10 months.

The appellant sought leave to appeal his conviction on two grounds. He had made two previous unsuccessful applications for a separate trial before the eventual trial before Judge Culver DCJ.

  • Whether a miscarriage of justice was occasioned by trying the appellant jointly with the co-accused (the victim's then-wife), whose recorded police interviews implicated the appellant but were inadmissible against him.
  • Whether the jury's verdict of guilty was unreasonable or unsupported by the evidence, such that no reasonable jury could have been satisfied beyond reasonable doubt of the appellant's guilt.

Decision

Ground 1: Joint trial and miscarriage of justice

Adamson J (with Ward P and Dhanji J agreeing) held that the appellant had not established a miscarriage of justice arising from the joint trial. To succeed on this ground, an appellant must demonstrate positive injustice that was not, or could not be, ameliorated by the trial judge's directions. Although the then-wife's recorded interviews were prejudicial to the appellant and inadmissible against him, the Crown's own case characterised her as a liar whose account should be rejected. The jury, having convicted her, can be taken to have rejected her self-serving version of events.

In those circumstances, the prospect of the jury having impermissibly relied on the then-wife's account to convict the appellant was remote. The trial judge's directions were found to be sufficient to remove any prejudice that might otherwise have arisen, including from references during closing address to the film "I, Tonya," in respect of which a swift and unequivocal direction to disregard was given.

Ground 2: Unreasonable verdict

Ward P (with Adamson and Dhanji JJ agreeing) conducted a comprehensive review of the trial evidence and applied the established test: whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt. The court found that none of the matters raised by the appellant gave rise to a rational inference or hypothesis consistent with innocence that was open on the evidence.

The timing of communications between all co-accused, combined with evidence placing a vehicle appearing to belong to the appellant at the service station where the gas bottles used in the offence were obtained, was found to dispel any reasonable doubt about the appellant's participation in the joint criminal enterprise. There was no rational inference available to suggest that the appellant was not the user of the telephone device shown to have communicated with the co-accused, nor that he was not present at the scene. The verdict was therefore not unreasonable.

Orders Made

  • Leave to appeal granted on ground 1; appeal on ground 1 dismissed.
  • Leave to appeal granted on ground 2; appeal on ground 2 dismissed.

Key Takeaways

  • To establish a miscarriage of justice from a joint trial, an appellant must demonstrate positive injustice that the trial judge's directions did not and could not ameliorate. The mere existence of prejudicial but inadmissible co-accused material is insufficient if the directions were adequate and the risk of impermissible reliance was remote.
  • Where the Crown itself invites the jury to reject a co-accused's account as untruthful, and the jury convicts that co-accused, the prospect of the jury having relied on that account to convict another accused is treated as unlikely.
  • The test for an unreasonable verdict remains whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the accused's guilt. An appellate court conducting that review looks for rational inferences or hypotheses consistent with innocence that were open on the evidence.
  • Circumstantial evidence, including communication patterns and vehicle sightings, can collectively dispel reasonable doubt about participation in a joint criminal enterprise even where no single piece of evidence is individually conclusive.
  • In dismissing both grounds, the Court of Criminal Appeal confirmed that earlier refusals of separate trial applications do not foreclose a later ground of appeal based on joint trial prejudice, but the threshold for establishing miscarriage of justice remains a demanding one.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 30, 47
- Criminal Procedure Act 1986 (NSW), s 29
- Criminal Appeal Act 1912 (NSW), s 6
- Court Suppression and Non-Publication Orders Act 2010 (NSW), ss 7, 8(1)(a)

Cases:
- M v R (1994) 181 CLR 487; [1994] HCA 63
- MFA v R (2002) 213 CLR 606; [2002] HCA 53
- SKA v R (2011) 243 CLR 400; [2011] HCA 13
- Libke v R (2007) 230 CLR 559; [2007] HCA 30
- Pell v R (2020) 268 CLR 123; [2020] HCA 12
- R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- Knight v R (1992) 175 CLR 495; [1992] HCA 56
- Barca v R (1975) 133 CLR 82; [1975] HCA 42
- Hillier v R (2007) 228 CLR 618; [2007] HCA 13
- Coughlan v R (2020) 267 CLR 654; [2020] HCA 15
- Webb v R (1994) 181 CLR 41; [1994] HCA 30
- Black v R (1993) 179 CLR 44
- Caleo v R (2021) 290 A Crim R 352; [2021] NSWCCA 179
- Allen v R [2020] NSWCCA 173
- Seifeddine v R [2021] NSWCCA 214
- R v Birks (1990) 19 NSWLR 677
- R v Middis (Supreme Court (NSW), Hunt J, 27 March 1991, unreported)