AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 3 July 2026

Elkerdi v R

[2026] NSWCCA 96

Firearms & weaponsPublic order & justice offences
DIRECTION — NO MISCARRIAGE OF JUSTICE

Citation: Elkerdi v R [2026] NSWCCA 96
Court: NSW Court of Criminal Appeal
Date: 3 July 2026
Judges: N Adams CJ at CL; Cavanagh J; McNaughton J

Background

The applicant and a co-accused were jointly tried in the District Court on a charge of firing a firearm at a dwelling house with reckless disregard for the safety of another person, contrary to s 93GA(1) of the Crimes Act 1900 (NSW). The Crown alleged that the pair drove to South Coogee on the evening of 27 May 2023 and discharged an SKS rifle at a unit on Gregory Street. Both were found guilty on 17 March 2025 and the applicant was sentenced to eight years' imprisonment with a non-parole period of five years.

The applicant did not give evidence at trial. His case rested entirely on the co-accused's account: that the applicant had been dropped off at his grandmother's house before the shooting, and that an unidentified third person was the actual shooter who compelled the co-accused to participate under duress. The central contest at trial was therefore whether the co-accused's account was credible.

On appeal, the applicant challenged both the overall fairness of the trial judge's summing up and the adequacy of a particular jury direction concerning how to assess the co-accused's evidence.

  • Whether the trial judge's summing up was so unbalanced and unfair as to amount to a miscarriage of justice, having regard to the language used about the co-accused's evidence and arguments advanced independently by the judge
  • Whether the trial judge was required to give a specifically calibrated version of the second limb of the Liberato direction in relation to the applicant personally, beyond the direction already given about the co-accused's evidence

Decision

Ground 1: Unbalanced and unfair summing up

The trial judge referred to the co-accused's unnamed acquaintance as "Mr No Name" on 34 occasions. The Court found this belittled that aspect of the co-accused's account and conveyed to the jury that the person was fictitious. Similarly, prefacing questions with phrases like "why on earth" left no room for the jury to understand the remarks as anything other than an expression that the trial judge disbelieved those parts of the co-accused's evidence.

The trial judge also advanced an independent "submission" that the shooting may have been targeted, a point neither party had put. That was not the trial judge's role. The trial judge went further, generating arguments to undermine the co-accused's duress defence and dismantling defence criticisms of the police investigation that the Crown had not itself addressed. The Court held that it was not for a trial judge to conduct that exercise.

Assessed as a whole, the summing up amounted to an exercise in persuading the jury of the applicant's guilt. That crossed the line from permissible judicial comment into a miscarriage of justice. The Court allowed the appeal on this ground.

Ground 2: Adequacy of the Liberato direction as applied to the applicant

The trial judge gave a full, three-limb Liberato direction about the co-accused's evidence and immediately followed it by directing the jury that the applicant relied on that same evidence. The applicant argued on appeal that the second limb, requiring an acquittal if the jury considered the account might be true, should have been repeated specifically in relation to the applicant.

The Court rejected that argument. The direction, read in context, adequately conveyed that if the jury thought the co-accused's account might be true, both accused were entitled to an acquittal. Significantly, defence counsel raised no objection and declined the trial judge's invitation at the end of the day to raise any concerns. The Court held that the absence of any application for a redirection was a strong indicator that no miscarriage of justice arose, consistent with the inference that counsel in the atmosphere of the trial saw no unfairness. Leave to appeal on this ground was granted but the ground was dismissed.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Applicant's conviction quashed
  • New trial ordered
  • Matter stood over to the District Court Arraignment List on 7 July 2026 at 10:00am

Key Takeaways

  • A trial judge's summing up crosses into impermissible territory when it advances independent arguments against the defence case that the Crown itself did not make, rather than summarising the competing cases fairly.
  • Repeated use of language that signals disbelief in a witness, including dismissive labels and rhetorical expressions of incredulity, can render a summing up so unbalanced that it causes a miscarriage of justice.
  • The Court of Criminal Appeal confirmed that a conventional three-limb Liberato direction given about a co-accused's evidence, followed immediately by a reminder that the applicant also relies on that evidence, may be sufficient without a separately calibrated direction specifically addressing the applicant's position.
  • Defence counsel's failure to seek a redirection at trial remains a significant factor weighing against a finding of miscarriage of justice on appeal, consistent with the principle that counsel's silence can indicate no unfairness was perceived at the time.
  • Where a summing up viewed as a whole amounts to an exercise in persuading the jury of guilt rather than assisting them to evaluate the evidence, the conviction will not stand.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 93GA(1)
- Criminal Appeal Act 1912 (NSW), ss 5(1), 6
- Criminal Procedure Act 1986 (NSW), s 160(2)
- Crimes (Appeal and Review) Act 2001 (NSW), s 108
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases
- Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66
- McKell v The Queen (2019) 264 CLR 307; [2019] HCA 5
- De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48
- BQ v The King (2024) 279 CLR 124; [2024] HCA 29
- Brawn v The King [2025] HCA 20; 99 ALJR 872
- Mahmood v Western Australia (2008) 232 CLR 397; [2008] HCA 1
- Haile v R (2022) 109 NSWLR 288; [2022] NSWCCA 71
- Mulholland v R (2018) 100 NSWLR 477; [2018] NSWCCA 299
- Germakian v R (2007) 70 NSWLR 467; [2007] NSWCCA 373
- Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288
- Evans v R; Evans v R [2024] NSWCCA 245
- Engstrom v R [2026] NSWCCA 30
- Ellingford v R [2026] NSWCCA 24
- Park v R [2023] NSWCCA 71
- Sanchez v R [2009] NSWCCA 171; 196 A Crim R 472
- Greenhalgh v R [2017] NSWCCA 94