Disabled at Court request - [2007] NSWCCA 339

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Sever v R [2007] NSWCCA 339

FILE NUMBER(S):
2007/3047

HEARING DATE(S): 6 December 2007

EX TEMPORE DATE: 6 December 2007

PARTIES:
Zoran SEVER (Applicant)
REGINA (Respondent)

JUDGMENT OF: Grove J Hulme J Simpson J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/11/0109

LOWER COURT JUDICIAL OFFICER: Hulme DCJ

COUNSEL:
P Byrne SC (Appellant)
P Miller (Respondent)

SOLICITORS:
Jaleh Johannessen (Appellant)
S Kavanagh (Public Prosecutions)

CATCHWORDS:
CRIMINAL LAW AND PROCEDURE
Trial
Failure to caution jury concerning election of accused not to give evidence
Omission due to oversight
No request by counsel
Direction required in circumstances
Evidence of sample selection following pointing to locations by trained dog
No error in admission of evidence
No special warning required as probative evidence was sample analysis not site selection

LEGISLATION CITED:

CASES CITED:
Azzopardi v The Queen (2001) 205 CLR 50
R v Benecke [1999] NSWCCA 163
R v Johnston [2007] NSWCCA 133

DECISION:
Appeal allowed.
Conviction quashed.
New trial ordered.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 2007/3047
GROVE J
HULME J
SIMPSON J
6 December 2007

Zoran SEVER v REGINA

Judgment

GROVE J: This is an appeal against conviction following a trial before Hulme DCJ and a jury at Sydney District Court. The indictment charged a single count of dishonestly destroying property by means of a fire with a view to making a gain (arson). The trial commenced on 19 March 2007 and the jury returned its verdict on 2 April 2007. The appellant was then placed in custody but on 22 June 2007 Hulme DCJ ordered his release on conditional bail. Sentence has not yet been passed.
In short, the Crown alleged that business premises owned by a company of which the appellant was the sole director were destroyed by fire in the early hours of the morning of 1 June 2004. There was evidence of the presence of accelerant having been applied to the premises, that the appellant had shortly before the fire substantially increased the insurance cover on the building, of the appellant’s financial situation and need for funds and the closing of the premises and departures therefrom on the evening prior to the fire. In proof of its case the Crown also relied upon lies asserted to have been told by the appellant as evidencing a consciousness of his guilt. He had been interviewed by police and also by an insurance claims assessor. There is no complaint about the correctness or adequacy of the directions given by his Honour in regard to the use that the jury might make of any finding that the appellant had lied.
Two grounds of appeal are advanced. Ground one is expressed thus:
“The trial proceedings miscarried by reason of the omission of the trial judge to give the jury a direction in accordance with Azzopardi v The Queen (2001) 205 CLR 50 as to the use which might be made by the jury of the fact that the appellant did not…

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

AGLC: Disabled at Court request [2007] NSWCCA 339
Case: [2007] NSWCCA 339
Decision Date: 6 December 2007

CaseChat Overview and Summary

In this case, the defendant was convicted of drug offences and appealed the conviction on the grounds that the trial judge had failed to caution the jury regarding the defendant's decision not to give evidence, an omission which occurred due to an oversight by the trial judge. The defendant argued that the failure to caution the jury constituted a substantial miscarriage of justice and required the conviction to be quashed and a new trial ordered. The prosecution contended that there was no error as counsel had not requested the caution and that there was no requirement for the trial judge to direct the jury in such circumstances. The court considered the nature of the evidence presented, which included a sample selection following the pointing to locations by a trained dog. The court held that there was no error in the admission of the evidence as it was the probative analysis of the sample, not the site selection, that was crucial. The court found that no special warning was necessary, and the defendant's appeal was dismissed. The conviction was upheld, and no new trial was ordered.

Orders