Abbott v The Queen - [2015] NSWCCA 7

Court of Criminal Appeal
Supreme Court

New South Wales

Case Name:	Abbott v R
Medium Neutral Citation:	[2015] NSWCCA 7
Hearing Date(s):	24 November 2014
Date of Orders:	11 February 2015
Decision Date:	11 February 2015
Before:	Hidden J at [1] Price J at [6] Schmidt J at [7]
Decision:	Appeal dismissed.
Catchwords:	CRIMINAL LAW – appeal against conviction – whether trial miscarried by reason of Crown’s closing address – no miscarriage – appeal dismissed
Legislation Cited:	Criminal Appeal Act 1912 (NSW) Crimes Act 1900 (NSW) Criminal Appeal Rules
Cases Cited:	Campbell [2005] NSWCCA 132 Edwards v R [1993] HCA 63; 178 CLR 193 Hargraves v R [2011] HCA 44; 245 CLR 257 MAJW v Regina [2009] NSWCCA 255 Palmer v R [1998] HCA 2; 193 CLR 1 Robinson v The Queen [No 2] [1991] HCA 38; 180 CLR 531 Zoneff v R [2000] HCA 28; 200 CLR 234 Robinson v R (1991) 180 CLR 531
Category:	Principal judgment
Parties:	Stephen Zade Abbott (Applicant) Regina (Crown)
Representation:	Counsel: Mr T Game SC (Applicant) Mr P Ingram SC (Crown) Solicitors: J H Fisher & Sons Solicitors (Applicant) J Pheils – Solicitor for Public Prosecutions (Crown)
File Number(s):	2011/309403
Publication Restriction:	None
Decision under appeal:
Court or Tribunal:	District Court
Date of Decision:	23 January 2014
Before:	Syme DCJ
File Number(s):	2011/309403

JUDGMENT

HIDDEN J: I have had the advantage of reading in draft the reasons of Schmidt J.
I agree with her Honour that the Crown prosecutor’s argument about the competing credibility of Mr Webb and the appellant, and the suggestion that the appellant was attempting by his evidence to discredit the complainant, does not amount to consciousness of guilt reasoning. As to the complaint that the argument is illogical, that was a matter for the jury to determine. It did not call for a judicial direction. The same is true of the allied argument which was characterised by senior counsel for the appellant as “a shortcut to conviction.”
Viewed in isolation, the prosecutor’s rhetorical question “Who do you believe?” might convey that the verdict turned on an assessment of the credibility of the appellant against that of Crown witnesses. However, the passages from the summing-up set out in the judgment of Schmidt J could have left the jury in no doubt as to the burden of proof borne by the Crown, and the fact that the accused bore no such burden.
On the other hand, the argument to the effect that the accused’s interest in the outcome of the proceedings was relevant to his credibility should not have been put, as the Crown prosecutor in this court acknowledged. However, after careful consideration, I accept his characterisation of it as “an unfortunate blemish” which would not have occasioned a miscarriage of justice, given that there was one brief reference to it in the prosecutor’s address and given the clear directions of the trial judge as to the burden of proof.
I agree that the appeal should…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Abbott v The Queen

Details

AGLC: Abbott v The Queen [2015] NSWCCA 7
Case: [2015] NSWCCA 7
Decision Date: 11 February 2015

CaseChat Overview and Summary

The case of Abbott v The Queen involved an appeal against the conviction of the appellant, Mr Abbott, following his conviction for an offence under the Crimes Act 1900. The appeal focused on the contention that the trial had miscarried due to the prosecutor's closing address to the jury, which allegedly suggested that the appellant had a motive to be dishonest about the events in question. The appeal was heard by the High Court of Australia.

The central legal issue in this case was whether the trial judge's directions to the jury, and the prosecutor's closing address, amounted to a miscarriage of justice that warranted the quashing of the appellant's conviction. Specifically, the court had to consider whether the prosecutor's comments about the appellant's interest in the outcome of the proceedings were an improper basis for assessing his credibility.

The court determined that while the prosecutor's comments were not ideal, they did not constitute a miscarriage of justice. The court emphasised that the trial judge had adequately directed the jury on the burden of proof and the appellant's right to be believed, which mitigated the impact of the prosecutor's remarks. Furthermore, the court found that the prosecutor's comments were not so prejudicial as to undermine the fairness of the trial. The appeal was thus dismissed, and the conviction upheld.

The court's decision affirmed the importance of trial fairness and the proper application of legal principles, while also recognising that minor errors or missteps do not necessarily invalidate an entire trial. The appellant's conviction remained intact, and no further orders were made.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

As to the applicant’s evidence her Honour directed:“Now the accused’s evidence. The fact that the accused has given and/or called evidence does not alter the burden of proof of each of the elements of the offence. The accused does not have to prove that his version is true. The Crown has to satisfy you that the account given by the accused should not be accepted as a version of events that could reasonably be true. Now I am not going to repeat the evidence of Mr Abbott again but it is obvious to all of us here that the evidence of Mr Abbott is at odds with the evidence of Mr Tucker.The accused also gave a version of the events in the recorded interview which you saw on DVD and by and large adopted that in his evidence in chief. The accused again is not required to prove that his account is true. The Crown in discharging its obligation to prove the accused’s guilt must satisfy you that the version given by the accused could not possibly be true.So if the accused’s version in the DVD or his evidence in court leaves you with a reasonable doubt as to any element of the Crown’s case then you must acquit, because it follows obviously that the Crown will not have proven its case beyond reasonable doubt. So if what the accused said leaves you with a doubt as to any element of the Crown’s case then you must acquit. It is only if you reject the version given by the accused and on top of that you are satisfied as to the elements of the offence then you can convict the accused.” (26-27) Her Honour asked the parties whether there were any other matters which ought to be addressed. There were not. As the Crown accepted on appeal, the prosecutor’s address to the jury as to the various witnesses’ evidence ought not to have been advanced on the basis that the fact that the applicant had an interest in the outcome of the proceedings was relevant to assessing his credibility. It is that concession which in my view should lead to leave under Rule 4 being granted. That occurred when the Crown submitted:“… is there a motive for the accused not to give you an accurate version of what occurred? You might think that his motive is that he is facing a serious criminal charge.” Whether a miscarriage of justice resulted, however, must be determined in the context of all that occurred at this trial. The Crown submitted at trial that Mr Webb had no motive to lie about how much alcohol the applicant had consumed and that if his evidence was accepted over that of the applicant, the jury might consider why the applicant was not telling the truth about that matter. The question posed was:“Was he trying [to] colour his evidence to make his evidence more acceptable, more credible? Was he trying to discredit Mr Tucker? Who agrees he had a lot to drink and also ingested cocaine, as he tried to, by inference, suggest to you that his, that is the accused’s version, is more accurate than Mr Tucker” There was nothing objectionable in this submission. These were matters which the jury was entitled to consider in determining whether to prefer the evidence of Mr Webb, or that of the accused.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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