Majok v The Queen - [2015] NSWCCA 160

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Majok v R [2015] NSWCCA 160
Hearing dates: 20 April 2015
Decision date: 19 June 2015
Before: Hoeben CJ at CL at [1];
Hall J at [2];
R A Hulme J at [3]
Decision:
1. Time to file Notice of Application for Leave to Appeal extended to 19 January 2015.
2. Leave to appeal against conviction refused.

Catchwords: CRIMINAL LAW – appeal against conviction - function and duty of trial judge in summing up to jury – contention that trial judge expressed agreement with matters favourable to Crown and continuously undermined defence arguments causing unfair trial and miscarriage of justice – need to consider in context of entire summing up - single complaint raised at trial on point lacking merit – other complaints raised for first time on appeal – leave to appeal refused
Cases Cited: Domican v The Queen [1992] HCA 13; 173 CLR 555
R v Heuston (1995) 81 A Crim R 387
R v Meher [2004] NSWCCA 355
R v Sukkar [2005] NSWCCA 54
R v Zorad (1990) 19 NSWLR 91
Robinson v R [2006] NSWCCA 192; 162 A Crim R 88
RPS v The Queen [2000] HCA 3; 199 CLR 620
Category: Principal judgment
Parties: Kachuol Majok (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr P Lange (Applicant)
Mr K McKay (Crown)
Solicitors:
Hanna Legal
Solicitor for Public Prosecutions

File Number(s): 2009/243170
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

28 March 2013

Before:

Bennett SC DCJ

File Number(s):

2009/243170

Judgment

HOEBEN CJ at CL: I agree with R A Hulme J.
HALL J: I agree with R A Hulme J
R A HULME J: Kachuol Majok ("the applicant") was found guilty by a jury in September 2012 of offences of assault occasioning actual bodily harm in company and causing grievous bodily harm with intent to do so. He was sentenced in March 2013 by his Honour Judge Bennett SC to an overall term of 9 years 6 months with a non-parole period of 5 years.
The applicant filed a notice of application for leave to appeal on 19 January 2015 and seeks an extension of time for such filing as a notice of intention to appeal expired on 28 April 2014. The Crown argued that an extension of time should be refused having regard to the principle of finality and that the proposed appeal lacks merit. The delay is largely explained by regrettable actions and inactions of lawyers rather than fault on the part of the applicant himself. An extension of time should be allowed.
There is one proposed ground of appeal: "His Honour erred in his summing up resulting in a miscarriage of justice". There is no appeal against sentence.

The Crown case

The Crown case was that in the early hours of 31 October 2009 at Blacktown the applicant and two other men, all of Sudanese heritage, assaulted Michael Skordis and caused him bodily harm. In a…

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 Majok v The Queen

Details

AGLC: Majok v The Queen [2015] NSWCCA 160
Case: [2015] NSWCCA 160
Decision Date: 19 June 2015

CaseChat Overview and Summary

In the case of Majok v The Queen, the appellant, Majok, challenged his conviction on appeal grounds, arguing that the trial judge had unfairly influenced the jury in favour of the Crown during the summing up. The appeal was heard by the High Court of Australia, where the primary focus was on the conduct of the trial judge during the closing address to the jury and whether it prejudiced the fairness of the trial.

The central legal issues revolved around the role and responsibilities of the trial judge in summing up to the jury. Specifically, Majok contended that the trial judge's summation expressed agreement with matters favourable to the Crown and undermined defence arguments, leading to an unfair trial and a miscarriage of justice. The court was required to determine whether the trial judge's conduct warranted a new trial and whether the alleged errors amounted to a miscarriage of justice.

The court examined the entire summing up to assess whether the trial judge's comments were prejudicial. It noted that while the trial judge had made some remarks that could be seen as favourable to the Crown, they were made in the context of a balanced summation. The court held that isolated comments did not undermine the fairness of the trial when considered in the context of the entire summing up. Furthermore, the court found that many of the complaints raised by Majok were not raised during the trial, and therefore, were not properly before the court. The court concluded that the trial judge had not acted in a way that would have led a reasonable observer to conclude that the trial was unfair, and thus, the appeal was dismissed.

Orders