Citation: Askarou v The King [2023] NSWCCA 246
Court: NSW Court of Criminal Appeal
Date: 6 October 2023
Judges: Beech-Jones CJ at CL; Cavanagh J; Weinstein J
Background
The appellant was convicted by a District Court jury of shooting with intent to murder, following an incident in July 2016 in which a victim was shot three times as he approached his front door. One bullet severed the victim's spinal cord, leaving him a paraplegic. The victim identified the appellant as the shooter.
The Crown's case rested heavily on the evidence of a witness, Mr Warda, who testified that the appellant had made admissions to him about the shooting. The defence called two alibi witnesses and mounted a sustained attack on Mr Warda's credibility at trial.
The appellant appealed his conviction on three grounds. Two grounds concerned the reasonableness of the verdict and alleged impropriety in the Crown's closing address. The third ground concerned a portion of Mr Warda's oral evidence that was audible but had been recorded in the transcript as "not transcribable," meaning the parties, the trial judge, and ultimately the jury proceeded without awareness of what had actually been said.
Legal Issues
- Whether the jury's verdict was unreasonable or unsupported by the evidence.
- Whether the Crown Prosecutor's closing address, which invited the jury to "jettison" the evidence of a Crown witness, caused a miscarriage of justice.
- Whether the failure to transcribe audible and significant evidence, resulting in the trial proceeding as though that evidence had not been given, constituted a miscarriage of justice.
Decision
Ground 1: Unreasonable verdict. The court acknowledged that the evidence was capable of raising some doubt about the appellant's guilt. However, applying the principles in Pell v The Queen and M v The Queen, the court held that the jury's advantage in seeing and hearing the witnesses was capable of resolving that doubt. The verdict was not unreasonable and this ground was dismissed.
Ground 2: Crown's closing address. During closing submissions, the Crown Prosecutor invited the jury to "jettison" the evidence of a witness named Roni Audisho. The court found this amounted to no more than a submission that the witness was unreliable, which is a legitimate course for the Crown to take. The court also noted that no complaint had been raised by trial counsel at the time. The court found no impropriety and dismissed this ground.
Ground 3: Untranscribed evidence. While the appeal was pending, the Crown reviewed the audio recording and discovered that the transcript had omitted a critical passage of Mr Warda's evidence. The missing words recorded Mr Warda saying that the appellant told him he was going to "run and shoot" the victim, and then "he did it sir." This was, if accepted, a direct admission of guilt.
The court held that a transcription error alone does not automatically constitute a miscarriage of justice. However, in this case, Mr Warda's credibility was the central issue for the jury. Because the untranscribed passage was not available to the parties, the jury was invited to assess Mr Warda's credibility on a false basis. The court found there was a real chance this affected the verdict, establishing a miscarriage of justice. The appeal was allowed on this ground and a retrial was ordered.
Orders Made
- Leave to appeal granted.
- Appeal allowed.
- Conviction set aside and a new trial ordered.
- Matter listed in the Arraignments List in the District Court at Parramatta on 27 October 2023 at 9:30am.
Key Takeaways
- A transcription error in a criminal trial does not, by itself, constitute a miscarriage of justice. The error becomes critical when the missing evidence bears directly on an issue at the heart of the Crown's case, such as the credibility of its principal witness.
- Where untranscribed but audible evidence is later recovered and shown to have been central to a key witness's credibility assessment, the Court of Criminal Appeal may find that the jury was invited to evaluate that witness on a false basis, giving rise to a real chance the verdict was affected.
- Inviting a jury to "jettison" the evidence of a witness the Crown itself called is not necessarily improper. The Crown does not warrant the truthfulness of its witnesses and may properly submit that a witness is unreliable.
- In dismissing the unreasonable verdict ground, the court reinforced that an appellate court's paper review of evidence capable of generating doubt does not displace the jury's advantage in directly seeing and hearing witnesses give their testimony.
- A retrial, rather than an acquittal, is the appropriate remedy where a conviction is set aside for a procedural miscarriage but the evidence at trial was sufficiently cogent to justify a conviction being returned.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 29
- Criminal Appeal Act 1912 (NSW), ss 6(2), 8(1)
- Evidence Act 1995 (NSW)
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15
Cases:
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36
- Edwards v The Queen (2021) 273 CLR 585; [2021] HCA 28
- TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
- Dansie v The Queen (2022) 96 ALJR 728; [2022] HCA 25
- Spies v The Queen (2000) 201 CLR 603; [2000] HCA 43
- Gilham v R [2012] NSWCCA 131
- Kanaan & Ors v R [2006] NSWCCA 109
- Armstrong v R [2013] NSWCCA 113
- Lyndon v R [2014] NSWCCA 112
- Jaghbir v R [2023] NSWCCA 175
- R v Anderson (1991) 53 A Crim R 421
- The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- King v The Queen (1986) 161 CLR 423; [1986] HCA 59
- Lawless v The Queen (1979) 142 CLR 659; [1979] HCA 49
- Hughes v R (2015) 93 NSWLR 474; [2015] NSWCCA 330