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16
Court of Criminal Appeal 29 April 2022

Haile v R

[2022] NSWCCA 71

Also reported as (2022) 109 NSWLR 288
Homicide
CRIMINAL LAW PRACTICE AND PROCEDURE SUMMING UP OF TRIAL JUDGE DIRECTIONS OF TRIAL JUDGE ERRONEOUS PRACTICE AND PROCEDURE

Citation: Haile v R [2022] NSWCCA 71
Court: NSW Court of Criminal Appeal
Date: 29 April 2022
Judges: Bell CJ; Bellew J; Ierace J

Background

The appellant was convicted by jury of the murder of a man shot and killed in a car park at Pendle Hill in October 2013. The Crown alleged the appellant carried out the killing as part of a joint criminal enterprise, having been paid $4,000 by a co-accused who harboured animosity toward the deceased. There was no dispute at trial that the appellant fired the fatal shot; the live issue was the circumstances in which he did so.

The only two eyewitnesses to the shooting were the deceased's then partner and the appellant himself. The appellant gave sworn evidence at trial, and his account directly contradicted that of the Crown's principal witness. The trial ran for several months before a verdict of guilty was returned on 6 June 2016, following a protracted deliberation period.

The appellant was sentenced to 32 years' imprisonment with a non-parole period of 24 years. He sought an extension of time to appeal, which was granted given delays in obtaining the summing-up and trial exhibits that were not attributable to the appellant or his legal representatives.

  • Whether the trial judge's directions to the jury, framed in terms of "choosing" between competing versions of events, were legally erroneous
  • Whether the trial judge was required to give a Liberato direction (a direction explaining how the jury should approach conflicting sworn evidence in light of the Crown's burden of proof) and whether the refusal to do so was an error
  • Whether the summing-up was, in general terms, fair and balanced, including in its treatment of the appellant's evidence and case
  • Whether the trial judge erred in discharging a third juror and then refusing to discharge the whole jury, particularly where a verdict followed almost immediately after that discharge
  • Whether the trial judge's modified Black direction (a direction given when a jury indicates it cannot reach a unanimous verdict) was materially defective
  • Whether jury deliberations conducted on two separate occasions in the absence of some jurors constituted a material irregularity

Decision

The Liberato direction and "choice" language

The trial judge framed his directions to the jury as requiring them to "choose" or "decide" between the appellant's account and that of the Crown's principal witness. The Court held this language was fundamentally wrong. It implied a binary choice, when in reality the Crown was required to prove its case beyond reasonable doubt regardless of which account the jury preferred. The trial judge also gave no direction on how the jury should approach the appellant's sworn evidence in the context of the Crown's onus of proof. The refusal to give a Liberato direction, which clarifies that even if the jury does not accept an accused's evidence it may still have a reasonable doubt, compounded this error significantly.

Fairness and balance of the summing-up

The Court found the summing-up was wanting in fairness and balance across several respects. The trial judge expressed critical views of aspects of the appellant's evidence, failed to provide a clearly defined summary of the appellant's case, and put propositions to the jury that the Crown itself had not advanced. Taken together, these features of the summing-up contributed to the overall miscarriage of justice.

Juror discharge and the modified Black direction

During deliberations, three jurors were discharged at different stages. Following a jury indication that a unanimous verdict could not be reached, the trial judge gave what he described as an "adaptation" of the standard Black direction but omitted the part informing the jury that the trial judge had power to discharge the entire jury if deadlocked. The Court held this omission was material: it presented the remaining dissenting juror with an inescapable dilemma, being either to maintain a position of conscience and prolong a fraught deadlock, or capitulate to the majority. A verdict of guilty followed almost immediately after the third juror was discharged on medical grounds, giving rise to a clear inference that this juror's views had differed from the majority. The Court held the trial judge should have discharged the whole jury at that point, and that the failure to do so created a real risk of substantial miscarriage of justice.

Deliberations in the absence of all jurors

On two separate occasions, jury deliberations continued for substantial periods without all jurors being present. No formal separation order had been made and no direction had been given to the jury that deliberations must only occur when all members were present. The Court held these episodes constituted material irregularities that contributed to the overall miscarriage of justice, and observed that clear orders and directions on jury separation are essential.

Orders Made

  • Time for filing the notice of appeal extended to 13 August 2021
  • Appeal against conviction allowed
  • Conviction and sentence quashed
  • Matter remitted to the arraignments Judge on 6 May 2022 to set a new trial date

Key Takeaways

  • A Liberato direction is effectively essential in any criminal trial where the accused gives sworn evidence that conflicts with Crown witness evidence; the direction clarifies that even a rejected defence account may still leave the jury with a reasonable doubt, and framing the inquiry as a binary "choice" between versions is a serious misdirection.

  • The Court of Criminal Appeal confirmed that departing from the model Black direction when a jury indicates deadlock carries significant risk; omitting the reference to the judge's power to discharge the whole jury may place improper pressure on a dissenting juror and can contribute to a miscarriage of justice.

  • Where a juror is discharged shortly after a jury has indicated it cannot agree, and a verdict follows almost immediately, the inference that the discharged juror held a dissenting view will arise and the trial judge should consider discharging the entire jury.

  • Jury deliberations conducted in the absence of one or more jurors, where no separation order has been made and no relevant direction given, can amount to a material irregularity capable of vitiating a verdict.

  • A summing-up that expresses critical views of the accused's evidence, omits a fair summary of the defence case, and advances propositions not put by the Crown will lack the balance required for a fair trial.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Jury Act 1977 (NSW), including ss 22, 55F, 72A
- Jury Amendment Act 2010 (NSW)

Cases
- Liberato v The Queen (1985) 159 CLR 507
- De Silva v The Queen (2019) 268 CLR 57
- Black v The Queen (1993) 179 CLR 44
- Crofts v The Queen (1996) 186 CLR 427
- Filippou v The Queen (2015) 256 CLR 47
- McKell v The Queen (2019) 264 CLR 307
- Domican v The Queen (1992) 173 CLR 555
- Castle v The Queen (2016) 259 CLR 449
- Douglass v The Queen (2012) 290 ALR 699
- Murray v The Queen (2002) 211 CLR 193
- Phan v R [2018] NSWCCA 225
- BG v R [2012] NSWCCA 139