Libdy v The Queen - [2021] NSWCCA 34

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Libdy v R [2021] NSWCCA 34
Hearing dates: 10-11 March 2021
Date of orders: 11 March 2021
Decision date: 11 March 2021
Before: Macfarlan JA
Walton J
Hamill J
Decision:
(1)   Leave to appeal granted.
(2)   Appeal allowed.
(3)   Vacate the order to discharge the jury.
(4)   Remit the matter to the District Court for the trial to continue on Friday, 12 March 2021.

Catchwords:
CRIMINAL LAW – urgent appeal against decision to discharge jury – where Prosecutor raises tendency and coincidence reasoning in closing address – where notice requirements not complied with – prejudice to accused – where trial Judge invites application to dispense with notice requirements – where application opposed – decision to discharge jury without application by either party – whether Prosecutor should be permitted to improve its case in subsequent trial – whether appropriate to discharge jury – relevant considerations – where accused opposes discharge – “simple solution” for Prosecutor to withdraw submission and Judge to provide “anti-tendency” directions – decision to discharge unreasonable and plainly unjust – decision based on extraneous and irrelevant considerations – order to discharge jury vacated

Legislation Cited:
Criminal Appeal Act 1912 (NSW), s 5G
Evidence Act 1995 (NSW), ss 97, 98

Cases Cited:
Barber v R; Zraika v R [2016] NSWCCA 125
Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22
Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15
Hamilton (a pseudonym) v R [2020] NSWCCA 80
R v Grand (1903) 3 SR(NSW) 216
R v Lamb; R v Mason; R v Hill [2016] NSWCCA 135
Trieu v R [2012] NSWCCA 169

Texts Cited:
Hamilton v The Queen [2021] HCATrans 19

Category: Principal judgment
Parties: Mohammed Libdy (Applicant)
Regina (Respondent)
Representation:
Counsel:
E Ozen SC (Applicant)
T Krayem (Applicant)
G Newton (Respondent)
Solicitors:
Abbas Jacobs Lawyers (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2019/62804
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal Law

Date of Decision:

10 March 2021

Before:

King SC DCJ

File Number(s):

2019/62804

EX TEMPORE Judgment (REVISED)

MACFARLAN JA: I will invite Hamill J to deliver the first judgment.
HAMILL J: This is an appeal brought pursuant to s 5G of the Criminal Appeal Act 1912 (NSW) which provides for appeals seeking “review of any decision by the court to discharge the jury, but only with leave of the Court of Criminal Appeal”. The matter came to the attention of the Registrar yesterday (Wednesday, 10 March 2021). In accordance with sub-s 5G(2), which requires the Court to deal with such appeals “as soon as possible”, the Court was constituted as it had been earlier in the day for two unrelated cases, and the matter was listed at 2:30pm. The legal practitioners for the applicant appeared at that time. The prosecuting authority was not represented for reasons that have now been explained. Senior Counsel…

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 Libdy v The Queen

Details

AGLC: Libdy v The Queen [2021] NSWCCA 34
Case: [2021] NSWCCA 34
Decision Date: 11 March 2021

CaseChat Overview and Summary

The case of Libdy v The Queen involved the applicant, who appealed against a decision to discharge the jury. The applicant was on trial for criminal offences, and the dispute centred on the trial judge's decision to discharge the jury without any application by either party. The appeal was heard in the High Court of Australia. The central issue for the court was whether the decision to discharge the jury was appropriate, given that the prosecution had not complied with the notice requirements and had raised tendency and coincidence reasoning in their closing address, which prejudiced the accused. The court was also required to determine whether it was appropriate to discharge the jury when the accused opposed the discharge and when the prosecution could have improved its case in a subsequent trial by withdrawing the submission and receiving "anti-tendency" directions from the judge.

The court held that the decision to discharge the jury was unreasonable and plainly unjust. The court found that the decision was based on extraneous and irrelevant considerations, such as the trial judge inviting an application to dispense with the notice requirements and the opposition to such an application. The court held that the decision to discharge the jury was based on an incorrect understanding of the relevant considerations and principles. The court held that the "simple solution" for the prosecution was to withdraw the submission and receive "anti-tendency" directions from the judge. The court found that the decision to discharge the jury was unreasonable and plainly unjust, and the order to discharge the jury was vacated.

The High Court set aside the decision to discharge the jury and ordered that the trial proceed with a new jury. The court emphasised the importance of ensuring that the prosecution complies with the notice requirements and that the trial is conducted fairly and justly. The court also highlighted the need for the trial judge to provide appropriate directions to the jury to prevent any prejudice to the accused. The decision in this case serves as a reminder of the importance of following proper legal procedures and ensuring that trials are conducted fairly and justly.

Orders