(1) The time for filing the notice of appeal is extended to 13 August 2021. (2) The appeal against conviction is allowed. (3) The appellant’s conviction and sentence are quashed. (4) The matter is remitted to the arraignments Judge on 6 May 2022 to set a new trial date.
Catchwords:
CRIMINAL LAW – Practice and procedure – Summing-up of trial judge – Where appellant was convicted by a jury of murder – Where principal Crown witness gave an account of the shooting of the deceased – Where that account was contradicted by the sworn evidence of the appellant – Where the trial judge gave directions in terms of the jury having to “choose” or “decide” between the two accounts – No direction given to the jury regarding fact that the appellant had given evidence – No direction given to the jury as to how the appellant’s evidence should be assessed in circumstances where the Crown had the onus of proof – Where the trial judge refused an application for a Liberato direction – Directions of trial judge erroneous – Refusal to give a Liberato direction also erroneous – Appeal allowed and new trial ordered
CRIMINAL LAW – Practice and procedure – Summing-up of trial judge – Where trial judge expressed a number of views in the course of the summing-up which were critical of aspects of the appellant’s evidence in the course of his summing-up – Absence of any clearly defined summary of the appellant’s case in the summing up – Where the trial judge put propositions to the jury which had not been advanced by the Crown – Summing-up generally lacking in fairness and balance – Appeal allowed and new trial ordered – Observations as to the extent to which comments by the trial judge as to the evidence and the facts is permissible
CRIMINAL LAW – Juries – Where trial judge discharged a juror at a relatively early stage of the appellant’s trial – Where the trial judge subsequently discharged two other jurors on the basis of the stress and anxiety associated with the trial – Where trial judge then refused an application to discharge the whole jury following the discharge of the third juror – Where verdict of guilty followed virtually immediately following the discharge of the third juror – Clear inference that the views of the third juror were at odds with the majority – Risk of miscarriage of justice arising from the refusal of the trial judge to discharge the jury – Appeal allowed and new trial ordered
CRIMINAL LAW – Practice and procedure – Directions of trial judge – Where jury indicated that they were unable to reach a unanimous verdict – Where trial judge…
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 Haile v R
Sign in free to access the full text
Details
AGLC
Haile v R [2022] NSWCCA 71
Case
[2022] NSWCCA 71
Decision Date
CaseChat Overview and Summary
The case of Haile v R involved the appellant's conviction for murder, which was the subject of an appeal to a higher court. The appellant contested the conviction on several grounds, primarily focusing on the trial judge's summing-up, the discharge of jurors, the directions given to the jury, and the handling of jury deliberations. The legal issues revolved around whether the trial judge's summing-up was fair and balanced, if the discharge of jurors was appropriately managed, whether the trial judge's directions to the jury were correct, and if the handling of jury deliberations was proper.
The court found that the trial judge's summing-up was flawed in several respects. It lacked fairness and balance, contained critical comments about the appellant's evidence without a clearly defined summary of the appellant's case, and introduced propositions not advanced by the Crown. Additionally, the trial judge did not adequately direct the jury on how to assess the appellant's evidence, particularly in light of the Crown's burden of proof. The refusal to give a Liberato direction was also deemed erroneous. The court concluded that these errors warranted a new trial. Moreover, the trial judge's decision to discharge a juror early in the trial and later two more jurors, while refusing to discharge the entire jury after the third juror was discharged, created a significant risk of a miscarriage of justice. The immediate guilty verdict after the third juror's discharge suggested that the juror's views were at odds with the majority.
The court also found that the trial judge's direction to the jury, when they indicated an inability to reach a unanimous verdict, deviated from the model direction and omitted a crucial part. This direction contributed to the miscarriage of justice resulting from the jury's failure to be discharged. Furthermore, the trial judge allowed the jury to deliberate on two separate occasions in the absence of all members, which constituted a material irregularity. This irregularity, the court held, was significant enough to warrant a new trial. The court emphasised the importance of adhering to the model direction for jury deliberations and directing juries that deliberations should only occur when all members are present.
Given these findings, the appeal was allowed, and a new trial was ordered. The court's decision highlighted the critical need for trial judges to ensure that summing-ups are fair, directions to the jury are accurate and complete, and the process for jury deliberations is strictly adhered to in order to maintain the integrity of the trial process.