Citation: R v Zreika [2002] NSWCCA 459
Court: NSW Court of Criminal Appeal
Date: 28 October 2002
Judge(s): Beazley JA, Sperling J, Carruthers AJ
Background
The appellant was convicted by a jury on two counts of wounding with intent to murder (under s 27 of the Crimes Act 1900 (NSW)) and one count of threatening a witness with intent to prevent that witness from attending proceedings (under s 322(a)). He had pleaded not guilty, and the jury returned its guilty verdicts on 7 June 2000. A fourth count resulted in a hung jury and was not the subject of this appeal.
The appellant challenged his convictions on several grounds, with the Court focusing on a direction given by the trial judge during the summing up. That direction concerned how the jury could use its disbelief of defence evidence.
Legal Issues
- Whether the trial judge's direction to the jury was erroneous in suggesting that disbelief of defence evidence could strengthen the Crown case
- Whether subsequent directions by the trial judge were sufficient to cure the error
- Whether the proviso under s 6(1) of the Criminal Appeal Act 1912 (NSW) applied, on the basis that no substantial miscarriage of justice had occurred
Decision
The Court identified the trial judge's direction as erroneous in at least two respects. The direction told the jury that disbelief of defence witnesses could bolster the Crown case, and it implied that if the jury disbelieved alibi witnesses, those lies could be treated as indicative of the appellant's guilt. The Crown did not contest that the direction was wrong.
The Crown argued the proviso should apply, relying on the principle that it is available where no substantial miscarriage of justice has occurred. Under established authority, the proviso cannot be applied where the convicted person lost a real chance of acquittal, or where the proceedings so fundamentally miscarried as barely to constitute a trial at all.
Beazley JA held that later directions from the trial judge did not expunge the effect of the erroneous direction. Those later directions addressed only the question of onus of proof and did not correct the earlier instruction that disbelief of defence witnesses added weight to the Crown case. The proviso was therefore unavailable.
The Court found a miscarriage of justice had occurred and, on that basis, determined the second ground of appeal was decisive. The remaining grounds of appeal, which written submissions indicated disclosed further errors, were not elaborated upon orally, as they were unnecessary to the outcome.
Orders Made
- Appeals upheld
- Convictions quashed
- New trial ordered on all grounds
- By addendum dated 20 December 2002: sentence for a separate offence of acting with intent to pervert the course of justice was varied to a fixed term of five years' imprisonment, commencing 5 June 1999 and expiring 4 June 2004
Key Takeaways
- A direction that invites a jury to use disbelief of defence witnesses as positive support for the Crown case is legally erroneous and capable of constituting a miscarriage of justice.
- The proviso under s 6(1) of the Criminal Appeal Act 1912 (NSW) is not available where the convicted person lost a real chance of acquittal, following R v Storey (1978) 140 CLR 364.
- Subsequent correct directions on onus of proof will not necessarily cure an earlier misdirection if they do not squarely address and correct the specific error.
- Where a fundamental misdirection has been given, the Court of Criminal Appeal may treat a single ground of appeal as determinative without requiring full argument on all remaining grounds.
- An alibi direction that impermissibly treats disbelief of alibi witnesses as affirmative evidence of guilt crosses a well-established line in criminal jury directions.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 27, 322(a)
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 59
Cases
- R v Storey (1978) 140 CLR 364
- Wilde v R (1988) 164 CLR 365
- R v Bozzola [2001] NSWCCA 8
- Glennon v R (1994) 68 ALJR 209