Mikael v R - [2015] NSWCCA 294

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Mikael v Regina [2015] NSWCCA 294
Hearing dates: 14 October 2015
Decision date: 25 November 2015
Before: Macfarlan JA at [1]
Hall J at [2]
Bellew J at [54]
Decision:
Appeal dismissed

Catchwords: CRIMINAL LAW – Appeal against conviction – Whether trial judge erred by failing to discharge the jury – Jury concerned photo had been taken of them by person in the back of the courtroom – Trial judge investigated incident and determined no photograph had been taken – Trial judge gave direction to the jury – Jury indicated that they had no further requests or concerns in relation to the incident – Trial judge held that there was no prejudice to the accused in those circumstances such as to warrant a discharge of the jury – Principles relating to discharge of jury – Held that finding of trial judge that no prejudice had resulted was sound – No error of fact or law established – Appeal dismissed
Cases Cited: Black v R (1993) 179 CLR 44
Crofts v R (1996) 186 CLR 427
Lyndon v R [2014] NSWCCA 112
R v Pearson (2000) 114 A Crim R 80
Webb & Hay v The Queen (1994) 181 CLR 41
Category: Principal judgment
Parties: Afif Mikael (Applicant)
Regina (Respondent)
Representation:
Counsel:
M Robinson SC (Applicant)
S Dowling SC (Respondent)
Solicitors:
Elliot Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2011/3653
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

24 April 2014

Before:

Hock DCJ

File Number(s):

2011/3653

Judgment

MACFARLAN JA: I agree with Hall J.
HALL J: The appellant, Afif Mikael, was arraigned in the District Court on 29 August 2013 before her Honour Hock DCJ and a jury of twelve in relation to the following counts:

Count 1: Supply a large commercial quantity of methylamphetamine (1848.73 grams) contrary to s 25(2) Drug Misuse and Trafficking Act 1985;
In the alternative to count 1:
2 counts of supply methylamphetamine (Counts 2 and 3);
2 counts of supply not less than a commercial quantity of methylamphetamine (Counts 4 and 5);

Count 6: Supply a prohibited drug (cocaine 0.72g);
Count 7: Knowingly receive proceeds of crime, namely $6100 (s 193V(2) Crimes Act 1900)

On 10 September 2013, the appellant was found guilty on Counts 1 and 7 and not guilty on Count 6. The trial proceeded over 31 days.
The trial before Hock DCJ was the third time that the appellant had stood trial on the charges. The first two trials had been aborted on the application of the appellant due to the necessity for the defence to examine telephone intercepts.
On 24 April 2014, the appellant was sentenced to a head sentence of 10 years 6 months with a non-parole period of 6 years 6 months.
By Notice of Appeal dated 14 May 2015 and filed on 29 May 2015, the appellant appeals against his conviction only, on a single ground in the…

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 Mikael v R

Details

AGLC: Mikael v R [2015] NSWCCA 294
Case: [2015] NSWCCA 294
Decision Date: 25 November 2015

CaseChat Overview and Summary

The appellant, Mikael, appealed against his conviction for various criminal offences. The case before the court involved a determination of whether the trial judge had erred in not discharging the jury after they expressed concern that a photograph may have been taken of them by a person in the back of the courtroom. The trial judge investigated the matter and concluded that no photograph had been taken. The trial judge provided a direction to the jury, after which the jury indicated they had no further requests or concerns regarding the incident. The trial judge determined that there was no prejudice to the accused in those circumstances warranting a discharge of the jury.

The legal issue before the court was whether the trial judge erred in not discharging the jury after they raised concerns about a potential photograph being taken of them. The court considered the principles relating to the discharge of a jury, including whether the accused had suffered prejudice as a result of the incident. The court found that the trial judge had properly investigated the matter and provided an appropriate direction to the jury. The jury indicated they had no further concerns regarding the incident, and the trial judge determined that there was no prejudice to the accused. The court held that the finding of the trial judge that no prejudice had resulted was sound and there was no error of fact or law established.

The court dismissed the appeal, affirming the decision of the trial judge that there was no error in not discharging the jury. The court held that the trial judge's determination that no prejudice had resulted was sound and that the principles relating to the discharge of a jury were correctly applied. The court found no error of fact or law in the trial judge's decision and dismissed the appeal. The conviction of the appellant was upheld.

Orders