Barber v R; Zraika v R - [2016] NSWCCA 125

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Barber v R; Zraika v R [2016] NSWCCA 125
Hearing dates: 14 June 2016
Date of orders: 14 June 2016
Decision date: 23 June 2016
Before: Bathurst CJ, Basten JA, Button J
Decision:
(1)   Grant applicants leave to appeal, but dismiss the appeal.

(2)   Vacate the stay.
(3)   Direct the Sheriff to advise jurors that they have been finally discharged, as ordered by the trial judge on Thursday 9 June 2016.
Catchwords:
CRIMINAL LAW – appeal – application for leave – discharge of jury by trial judge – jury unable to agree as to one accused – jury not invited to consider charges against applicants – whether decision to discharge erroneous – whether relief available after discharge took effect and jury released – s 5G Criminal Appeal Act 1912 (NSW)
JURIES – discharge before judge summed up charges against accused – refusal to stay decision to discharge – whether decision to discharge erroneous – whether stay of decision effective to protect against prejudice
Legislation Cited:
Criminal Appeal Act 1912 (NSW), ss 5F, 5G, 11
Jury Act 1977 (NSW), ss 22, 53C, 55D, 55DA, 55F, 68C

Cases Cited:
Dietz v Bouldin 579 US _ (2016); Slip opinion
House v The King (1936) 55 CLR 499
R v Abdul-Razzak [2006] NSWCCA 195
R v Cheng (1999) 48 NSWLR 616
Remmer v United States 347 US 227, 229 (1954)
Smith v The Queen (1970) 121 CLR 572
Smith v Massachusetts, 543 US 462, 473-474 (2005)

Texts Cited:
NSW Law Reform Commission, Jury Selection – Report 117, pars 11.52-11.55

Category: Principal judgment
Parties:
In matter 2014/180279:

April Barber (Applicant)
Regina (Respondent)

In matter 2014/235123:
Amin Zraika (Applicant)
Regina (Respondent)
Representation:
Counsel:
Ms A Francis (Barber)
Mr D Patch (Respondent)
Solicitors:
Bannisters Lawyers (Barber)
Macquarie Lawyers, Burwood (Zraika)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2014/180279; 2014/ 235123
Decision under appeal

Court or tribunal:

Supreme Court

Jurisdiction:

Criminal

Date of Decision:

09 June 2016

Before:

R S Hulme AJ

File Number(s):

2014/180279; 2014]/235123

Judgment

JUDGMENT of THE COURT delivered by BASTEN JA: The applicants for leave to appeal are two of four accused put on trial together for offences arising out of the death of Raymond Pasnin in Pendle Hill in October 2013. There was no dispute that one of the accused (Daniel Haile) shot the victim. He claimed that he acted in self-defence, but the jury convicted him of murder.
A second offender and former girlfriend of the victim, Louise Spiteri-Ahern, was charged with the murder and, in the alternative, with soliciting Haile to murder the victim. The jury was unable to agree in relation to Ms Spiteri-Ahern.
Shortly after 3pm on Thursday, 9 June 2016, the jury having advised that they were unable to reach a verdict, the trial judge, R S Hulme AJ, discharged them both with respect to the charges against Ms Spiteri-Ahern and with respect to the present applicants. The applicants, who thereby…

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.

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Details

Case: [2016] NSWCCA 125
Decision Date: 23 June 2016

CaseChat Overview and Summary

The case of Barber v R; Zraika v R involved two appellants who were convicted of serious criminal offences. The applicants sought leave to appeal against their convictions, arguing that the trial judge had erroneously discharged the jury before it could reach a verdict on all charges against them. The case was heard in the Court of Criminal Appeal in New South Wales.

The central legal issue before the court was whether the trial judge's decision to discharge the jury was erroneous and, if so, whether the applicants were entitled to any relief given that the jury had already been discharged and released. The applicants argued that they were prejudiced by the premature discharge because they were unable to receive a verdict on some of the charges against them. The respondents, represented by the Crown, contended that the trial judge's decision was correct and that no relief was available once the jury had been discharged.

The court held that the decision to discharge the jury was indeed erroneous as it occurred before the jury had deliberated on all charges against the applicants. However, the court found that the applicants were not entitled to relief under section 5G of the Criminal Appeal Act 1912 (NSW) because the discharge had already taken effect, and the jury had been released. The court noted that the applicants had not suffered any prejudice as a result of the discharge since they were acquitted of some of the charges and only faced a retrial on the charges where the jury had been unable to reach a verdict. The court also concluded that a stay of the discharge decision would not have been effective in protecting against prejudice in this case.

The final orders of the court were that the applications for leave to appeal were dismissed, and the convictions of the applicants were upheld.

Orders