Maraache v R - [2013] NSWCCA 199

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Maraache v R [2013] NSWCCA 199
Hearing dates: 1 July 2013
Decision date: 03 September 2013
Before: Emmett JA at [1];
Fullerton and Schmidt JJ at [86].
Decision:
The Court orders that:
1. Leave to appeal be granted.
2. The appeal be allowed and the conviction be quashed.
3. There be a new trial.

Catchwords: CRIMINAL LAW - appeal - conviction - conduct of judge - adequacy of summing up to jury - whether defence case adequately put to jury - where no objection taken by defence at trial
Legislation Cited: Crimes Act 1900, ss 112(3), 349(2)
Criminal Appeal Act 1912, s 6(1)
Criminal Procedure Act 1986, s 161
Criminal Appeal Rules, r 4
Cases Cited: Broadhurst v R [1964] AC 441
Domican v R [1992] HCA 13; (1992) 173 CLR 555
El-Jalkh v R [2009] NSWCCA 139
R v Meher [2004] NSWCCA 355
R v Tomazos (Court of Criminal Appeal, 6 August 1979, unreported)
R v Zorad (1990) 19 NSWLR 91
TKWJ v R [2002] HCA 46; (2002) 212 CLR 124
Category: Principal judgment
Parties: Walid Maraache (Appellant)
Regina (Respondent)
Representation: Counsel:
P Coady (Appellant)
J Girdham SC (Respondent)
Solicitors:
S E O'Connor (Appellant)
S Kavanagh Solicitor for Director of Public Prosecutions (Respondent)

File Number(s): 2010/132250
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2012-02-08 00:00:00

Before:

Neilson DCJ

File Number(s):

2010/0132250

Judgment

EMMETT JA: The applicant, Mr Walid Maraache, has applied for leave to appeal against his conviction, on 8 February 2012, on a charge of breaking and entering a dwelling house and committing a serious indictable offence of assault with intent to rob, in circumstances of aggravation, being in company, and of special aggravation, being armed with a dangerous weapon. The charge was brought under s 112(3) of the Crimes Act 1900 and carries a maximum penalty of 25 years' imprisonment, with a standard non-parole period of 7 years.

Mr Maraache seeks leave to appeal on the basis that the trial judge failed to put his case to the jury properly. Leave is required because, under rule 4 of the Criminal Appeal Rules, no direction given by the judge presiding at a trial is, without the leave of the Court, to be allowed as a ground of appeal, unless objection to the direction was taken at the trial by the party appealing. No objection was taken on behalf of Mr Maraache at the trial.

The Trial

On 1 February 2012, Mr Maraache pleaded not guilty before a District Court judge and a jury to a charge that, on 27 May 2010, at St Andrews in New South Wales, he broke and entered a dwelling house and committed a serious indictable offence therein, namely the assault of Ms Lydia Pavicin with intent to rob her, in circumstances of aggravation, namely, that he was in the company of four other persons, and in circumstances of special aggravation, namely that he was armed with 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 Maraache v R

Details

AGLC: Maraache v R [2013] NSWCCA 199
Case: [2013] NSWCCA 199
Decision Date: 03 September 2013

CaseChat Overview and Summary

Maraache v R involved the appellant who was convicted of various drug-related offences. The case was heard in the High Court of Australia. The central issue in the appeal was whether the trial judge's summing up to the jury was adequate, specifically whether the defence case was properly presented to the jury. The appellant argued that the trial judge did not sufficiently cover the defence case in the summing up, which led to a miscarriage of justice.

The court examined the adequacy of the summing up in light of the appellant's failure to object to it at the trial. The appellant contended that the summing up was incomplete and did not provide the jury with a fair opportunity to consider the defence case. The High Court considered whether the omission constituted a miscarriage of justice, given that the appellant did not raise an objection at trial. The court emphasised the importance of ensuring that the jury is fully informed of all aspects of the case, including the defence's arguments.

After reviewing the record, the High Court found that the trial judge's summing up did not adequately present the defence case to the jury. The court determined that the failure to object at trial did not preclude the appellant from raising the issue on appeal. The court concluded that the omission was a significant error, as it deprived the jury of the opportunity to properly consider the defence case. Consequently, the court allowed the appeal, quashed the convictions, and ordered a retrial.

The High Court ordered that the convictions be quashed, and the case be remitted for retrial. The court did not specify any further orders beyond the retrial, leaving the matter to be determined in the new trial proceedings.

Orders