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Court of Criminal Appeal 19 December 2025

Hicks v R

[2025] NSWCCA 224

Homicide
CRIME APPEALS APPEAL AGAINST CONVICTION WHETHER MISCARRIAGE OF JUSTICE OCCURRED WHETHER PROVISO SHOULD BE APPLIED APPEAL ALLOWED

Citation: Hicks v R [2025] NSWCCA 224
Court: Court of Criminal Appeal
Date: 19 December 2025
Judge(s): Payne JA at [1]; Campbell J at [76]; N Adams J at [77]

Background

The appellant was convicted of murder following a joint trial in the Supreme Court in June 2023. The Crown alleged he was one of three men who returned to the deceased's home late at night, fatally stabbing the deceased during a planned robbery. The other two men were identified as co-accused Samir Chamma and a third man, Mr Salamie.

A critical Crown witness, referred to as Witness G, was present at an earlier visit to the deceased's home that evening and provided evidence that the appellant had later admitted to stabbing the deceased. The appellant ran an alibi defence and did not give evidence. He was sentenced to 23 years' imprisonment with a non-parole period of 16 years.

A co-accused, Mr Chamma, had his conviction quashed by the Court of Criminal Appeal on 4 June 2025 on the same ground now raised by the appellant. The appellant's single ground of appeal replicated that ground.

Legal Issues

  • Whether the Crown's failure to disclose benefits granted to Witness G constituted a material error or irregularity giving rise to a miscarriage of justice
  • Whether the proviso under s 5 of the Criminal Appeal Act 1912 (NSW) should be applied, so as to uphold the conviction despite the error, on the basis that no substantial miscarriage of justice actually occurred

Decision

Ground 1: Breach of the Crown's duty of disclosure

The Crown conceded that it had not disclosed, at any time before trial, that Witness G received a 25% sentence discount in exchange for agreeing to provide assistance to the Crown in these proceedings (at [13]). The Court further identified a second non-disclosure: a letter written by a police officer in support of Witness G's bail application, and the timing of that letter relative to a critical statement Witness G provided to police (at [17]). Payne JA held that these failures constituted a material error or irregularity, because the non-disclosures could realistically have affected the jury's reasoning on the verdict of guilty (at [15]). A miscarriage of justice within the meaning of the Criminal Appeal Act was established (at [16]).

Ground 2: Whether the proviso should be applied

The sole remaining question was whether the Crown had shown this was a proper case to apply the proviso, that is, to decline to allow the appeal on the basis that no substantial miscarriage of justice actually occurred (at [18]). Payne JA reviewed the entire evidentiary record in detail. He found that Witness G's evidence was central to the Crown case and that the vast majority of critical evidence was either intertwined with or explained by that evidence (at [66]). The only direct evidence that the appellant had admitted to being the person who stabbed the deceased came from Witness G (at [60]).

Payne JA examined the various alleged admissions made by the appellant in recorded calls and text messages but concluded that they could not be assessed independently of Witness G's evidence and its interpretation (at [61]-[64]). The credit of Witness G was squarely in issue at trial, and the non-disclosures went directly to the appellant's ability to challenge that credit (at [67]-[73]). Consistent with the approach in Kalbasi v Western Australia and Orreal v The Queen, the nature and effect of the error prevented the Court from independently assessing whether guilt was proved to the criminal standard. The proviso was therefore unavailable (at [73]). Campbell J and N Adams J both agreed that a conviction in the circumstances was not inevitable and that the proviso could not be applied (at [76]-[77]).

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Conviction of the appellant set aside
  • Matter remitted to the Supreme Court for mention on 27 January 2026 before Hamill J

Key Takeaways

  • A prosecution's failure to disclose a sentencing benefit granted to a key witness, together with a failure to disclose a police letter supporting that witness's bail application, constituted a material error giving rise to a miscarriage of justice where the undisclosed matters could realistically have affected the jury's reasoning (at [13]-[17]).

  • Where the Crown's case against an accused is substantially dependent on the evidence of a single witness whose credibility was in issue at trial, non-disclosures that directly undermined the accused's ability to challenge that witness's credit can prevent an appellate court from independently assessing whether guilt was proved to the criminal standard (at [66]-[73]).

  • The Court of Criminal Appeal confirmed that the proviso cannot rescue a conviction where the nature and effect of the error deprive the appellate court of the capacity to make a just assessment of the evidence, consistent with the principles in Kalbasi v Western Australia (2018) 264 CLR 62 and Orreal v The Queen (2021) 274 CLR 630 (at [67]-[73]).

  • Apparent strength in a Crown case does not, of itself, justify application of the proviso. All three judges emphasised that, despite the apparent strength of the evidence against the appellant, a guilty verdict was not inevitable (at [74]-[77]).

  • The question when applying the proviso remains whether a guilty verdict was inevitable, not merely whether one was open, as reaffirmed by reference to Hofer v The Queen (2021) 274 CLR 351 (at [21]).

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW) , s 5
- Criminal Procedure Act 1986 (NSW), ss 61 - 62, 141 - 151

Cases
- Brawn v The King [2025] HCA 20; [2025] 99 ALJR 872
- Decision Restricted [2025] NSWCCA 84
- Director of Public Prosecutions (Cth) v Kinghorn; Kinghorn v Director of Public Prosecutions (Cth) (2020) 102 NSWLR 72; [2020] NSWCCA 48
- Grey v The Queen [2001] HCA 65; [2001] 75 ALJR 1708
- Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36
- Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7
- MDP v The King [2025] HCA 24; [2025] 99 ALJR 969
- Orreal v The Queen (2021) 274 CLR 630; [2021] HCA 44
- R v Reardon (2004) 60 NSWLR 454; [2004] NSWCCA 197
- Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81