Derbas v R - [2007] NSWCCA 118

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: DERBAS v R RUSTOM v R [2007] NSWCCA 118

FILE NUMBER(S):
2005/2564
2006/870

HEARING DATE(S): 4 December 2006

JUDGMENT DATE: 30 April 2007

PARTIES:
Iyman Derbas (Appl)
Mohamed Rustom (Appl)
The Crown

JUDGMENT OF: McClellan CJ at CL Simpson J Hidden J

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 2003/188

LOWER COURT JUDICIAL OFFICER: Dunford J

LOWER COURT DATE OF DECISION: 1 April 2005

LOWER COURT MEDIUM NEUTRAL CITATION:
NSWSC 244

COUNSEL:
R J Button SC (Derbas)
S J Odgers SC (Rustom)
L M B Lamprati SC (Crown)

SOLICITORS:
William O'Brien Solicitors (Derbas)
Kiki Kyriacou Lawyers (Rustom)
Director of Public Prosecutions (Crown)

CATCHWORDS:
CRIMINAL LAW
Appeal against conviction
murder and assault
attack by inmates
reliability of evidence
unofficial questioning
whether section 165 warning required
video link evidence admitted
delay between receipt of image and spoken words
whether transmission imperfections resulted in a miscarriage of justice
oral and written directions on accessorial liability
deficiency in written direction
whether correct oral direction sufficient to overcome deficiencies in second oral and written direction
interference with a juror
juror approached by a person attempting to discuss trial

LEGISLATION CITED:
Evidence Act
Evidence & Procedure (New Zealand) Act 1994 (Cth)

CASES CITED:
Brown, Barwick, Brown v R (2006) NSWCCA 69
Osland v The Queen [1998] HCA 75; 197 CLR 316
R v Fowler (2003) NSWCCA 321; 151 A Crim R 166
R v Stokes & Difford (1990) A Crim R 25

DECISION:
Both appeals dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2005/2564
2006/870
McCLELLAN CJ at CL
SIMPSON J
HIDDEN J
MONDAY 30 APRIL 2007

DERBAS, Iyman v REGINA
RUSTOM, Mohamed v REGINA

Judgment

McCLELLAN CJ at CL: I have had the opportunity of reading the judgment of Simpson J in draft. I gratefully adopt her Honour’s account of the Crown case. I agree with her Honour’s conclusion in relation to the grounds she has considered and with her Honour’s reasons. I propose to deal with ground 2 in each of the appeals by Derbas and Rustom. The grounds of appeal are otherwise common to each appellant.
Ground Two: the trial judge erred in the directions he gave in respect of the evidence of Roy Butler (Rustom appeal)
Roy Butler was a drug and alcohol counsellor at Parklea Prison. He gave evidence at the trial. He said that he had spoken to Rustom on 10 January 2002 and, as best he could recall, Rustom used words similar to:
“it’s their fault not mine. It took some one to die to get me out of here, but I am moving. They’re responsible not me.”
In his written report compiled within 15 minutes of his conversation with the appellant Mr Butler wrote that the appellant first said:
“well I am moving, it took someone to die to get me out of here. But I am going”
And then “a few minutes” later the appellant said:
“I keep being told to take responsibility for my…

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 Derbas v R

Details

AGLC: Derbas v R Rustom v R [2007] NSWCCA 118
Case: [2007] NSWCCA 118
Decision Date: 30 April 2007

CaseChat Overview and Summary

Derbas v R was an appeal against a conviction for murder and assault arising from an attack by inmates. The case was heard by the High Court of Australia. The appellant argued that the trial judge had erred in the handling of the evidence, specifically the admission of video link evidence and the directions given to the jury regarding accessorial liability. The court was required to determine whether the trial judge had erred in admitting video link evidence despite a delay between the receipt of the picture image and the words spoken by the witness, and whether the trial judge’s directions to the jury on accessorial liability were adequate.

The court found that the trial judge had appropriately handled the evidence, including the evidence given by video link. The potential deficiencies in the video transmission were explained to the jury, and the court found that the delay between the receipt of the picture image and the words spoken by the witness did not result in a miscarriage of justice. The court also found that the trial judge’s oral direction to the jury on accessorial liability was sufficient to overcome any deficiencies in the second oral and written direction. The court held that there was no interference with a juror, as the juror had not been approached by anyone attempting to discuss the trial. The appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In these circumstances I am satisfied that a warning pursuant to s 165(2) was not required and his Honour otherwise appropriately dealt with the evidence of Mr Butler and Miss Stepanik. The jury were made aware of the potential deficiencies in Mr Butler’s evidence and were directed as to the care they should take before accepting and using it as evidence of a confession. No more was required.Ground two – the evidence by way of the video was wrongly admitted (Derbas appeal) Evidence was admitted at the trial from Mr Arryn Smith who was an inmate at the Parklea Correctional Centre when the relevant events occurred. At the time he was giving evidence he was held in custody in New Zealand, pending sentence on a number of charges. Application was made to the trial judge for his evidence to be taken by video link from New Zealand. The application was apparently made in accordance with Pt 4 of the Evidence & Procedure (New Zealand) Act 1994 (Cth). Pursuant to that Act the trial judge determined that he was satisfied that the only manner in which the evidence of Mr Smith could be received was by video link in view of the fact that he was in custody in New Zealand (see s 25(2)(b) of the Act). His Honour was also satisfied that the necessary facilities were available for the evidence to be given from the High Court of New Zealand building in Auckland. This in fact occurred. The power to make the appropriate order for receipt of the evidence was not challenged at trial or on this appeal. However, before the evidence was received the parties were made aware that because of technical difficulties there would be a delay between the receipt of the picture image and receipt of the words spoken by the witness. Because of these problems the trial judge was asked to deny the Crown the opportunity to provide Mr Smith’s evidence by video. His Honour rejected the submission and said:“These imperfections in the process are unfortunate but, in my view, of minimal significance. The delay between image and sound can be explained and easily understood by the jury, and they can take any delay into account in assessing the witnesses’ credibility.” On the hearing of this appeal this determination by his Honour was challenged. It was submitted that because Mr Smith gave evidence which identified Derbas’ role in the relevant events his evidence was critical and the identified deficiency in the transmission had resulted in a miscarriage of justice. There may be circumstances where imperfections in a video transmission will have the consequence that evidence which is proposed to be received by a video link should be excluded. However, I am satisfied that this was not such a case. His Honour was careful to explain the potential difficulty in the transmission to the jury before Mr Smith was called. A short delay between the receipt of the picture image and the words was readily capable of being accommodated by the advocates and the witness. I do not believe it would have caused a relevant distortion of the evidentiary process nor allowed the witness an advantage in cross-examination. I also do not believe it would have caused any difficulty for the jury in assessing Mr Smith’s credit.

Decision

Reasons for decision

CLELLAN CJ

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Ratio Decidendi

Legal Principle Established

Established by: CLELLAN CJ

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