Petryk v The Queen

[2020] NSWCCA 157

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Petryk v R [2020] NSWCCA 157

Hearing dates:

6 July 2020

Decision date:

10 July 2020

Before:

Bathurst CJ;
Hoeben CJ at CL;
Adamson J

Decision:

(1)   Extend the time for filing the notice of appeal/notice of application for leave to appeal to 9 March 2020.

(2)   Grant leave to appeal with respect to ground 1.

(3) Refuse leave under rule 4 of the Criminal Appeal Rules with respect to ground 2.

(4)   Dismiss the appeal on ground 1.

Catchwords:

CRIME — Appeals — Appeal against conviction — Where applicant found guilty of murder by jury — Where defence counsel withdrew before closing — Where new defence counsel made submission in closing that was not put to relevant prosecution witness — Where trial judge told counsel this approach was not open — Whether trial judge erred in restricting defence counsel’s submission

CRIME — Appeals — Appeal against conviction — Miscarriage of justice — Whether trial judge failed to raise a hypothesis consistent with innocence during summing up — Where defence counsel did not request trial judge to alter or add direction to summing up — Whether leave to appeal ought be granted

Legislation Cited:

Criminal Appeal Act 1912 (NSW), ss 5, 10

Criminal Appeal Rules

Cases Cited:

Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42

Browne v Dunn (1893) 6 R 67

Cleland v The Queen (1982) 151 CLR 1 at 10; [1982] HCA 67

Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13

McKell v The Queen (2019) 264 CLR 307; [2019] HCA 5

MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329

R v Birks (1990) 19 NSWLR 677

R v Nikolovski (No 2) [2017] NSWSC 1451

R v PL [2009] NSWCCA 256; (2009) 199 A Crim R 199

R v Saffron (1988) 17 NSWLR 395

Williams v The Queen (1986) 161 CLR 278; [1986] HCA 88

Category:

Principal judgment

Parties:

Daniel Petryk (Applicant)
Regina

Representation:

Counsel:
T Ramrakha (Applicant)
F Veltro (Crown)

Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s):

2015/332911

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Criminal

Date of Decision:

23 October 2017

Before:

Wilson J

File Number(s):

2015/332911

Judgment

1. THE COURT: Daniel Petryk (the applicant) seeks an extension of time for leave to appeal against his conviction following the return of a guilty verdict by a jury at the conclusion of a trial before Wilson J in Newcastle which took place between 11 September and 23 October 2017.

2. The applicant seeks leave to appeal on the following two grounds:

1. The trial judge erred in not allowing the applicant to make closing submissions to the jury on matters which had not been put to a relevant Crown witness; and

2. The trial judge’s summing up to the jury on the nature of the applicant’s case caused a miscarriage of justice.

The applicant’s trial

3. Before addressing the grounds of appeal it is necessary to summarise the way in which the trial was conducted to provide the relevant context.

The indictment

4. On 18 September 2017 the applicant and Jesse Nikolovski (the co-accused) were tried on an indictment which charged the following two counts:

1.   On 7 March 2015, at Wickham, did murder Robert Parry.

2.   On 7 March 2015, at Wickham, while armed with a dangerous weapon, namely a .22 calibre rifle, robbed Robert Parry of cannabis, cigarettes and a smoking pipe.

The Crown case

5. The Crown case was based on the evidence of two witnesses who were criminally involved in the events: Pheobe Bronner, who received indemnity from prosecution, and Jeremy Gorman, who received a reduced sentence for the offence of unlawful possession of unauthorised firearm.

6. The Crown case was that the applicant wanted to steal cannabis from Robert Parry (the deceased), whom he had heard sold cannabis. The applicant knew where the deceased lived and that he sometimes left his front door open. The Crown alleged that the applicant, who had borrowed a firearm from Mr Gorman, suggested the robbery to the co-accused and his then girlfriend, Ms Bronner. The Crown case was that in the early hours of 7 March 2015, the applicant, the co-accused and Ms Bronner drove to the deceased’s house in Wickham. On the way, they stopped to collect the firearm from Mr Gorman, from whom the applicant had arranged to borrow it. The Crown alleged that the applicant, the co-accused and Ms Bronner entered the deceased’s house. When the deceased confronted the applicant, the applicant discharged the firearm and shot and killed the deceased. The three then stole the deceased’s cigarettes, a small amount of cannabis and a pipe.

The evidence of Pheobe Bronner

7. Ms Bronner gave evidence on 3, 4 and 5 October 2017. In her evidence in chief she said that when she had first been interviewed by police on 5 August 2015, she lied because she was scared and told them that she knew nothing about the events of 7 March 2015 which led to the death of the deceased. Subsequently, on 13 August 2015, the police informed her that her DNA had been located at the deceased’s home. This, together with the suggestion that Ms Bronner and the co-accused were the only two at the scene, prompted her to disclose to the police what had happened, including that the applicant was present. She understood at that time that police believed that the co-accused had pulled the trigger on the firearm and told them that it was not the case and that it was the applicant who had shot the deceased. She admitted in examination in chief that she was in a relationship with the co-accused and denied that she attempted to minimise the role of the co-accused on the basis of their relationship.

8. Ms Bronner’s evidence in chief was that the applicant had mentioned that they would go to a house where the door would be left open and that they would take a firearm “to look scary”. She said that the applicant asked the co-accused, in whose car they were travelling to the deceased’s home in Wickham, to pull over on the way to pick up the firearm. He had told them, after there had been an audible bang, that the firearm, which was a single-shot firearm, had only one bullet. Call charge records established that there were several text messages sent between the applicant and Mr Gorman between 8.36pm on 6 March 2015 and 1.11am on 7 March 2015. Further text messages between the two recommenced at 7.30am on 7 March 2015 and continued throughout the day.

9. On 5 October 2017, the applicant’s then counsel, Mr Austin, cross-examined Ms Bronner. It was put to her that when the police spoke to her on 13 August 2015, her aim was to ensure that she was not charged as a consequence of her DNA having been located at the deceased’s home. When Mr Austin put to her that she was seeking to distance herself from responsibility by implicating the applicant, she maintained that she was telling the truth. Ms Bronner denied the proposition put to her by Mr Austin that the applicant was not with her and the co-accused the night they went to the deceased’s house. She also denied the further proposition Mr Austin put to her that if there was another person involved in the offence who used the firearm and shot the deceased, it was certainly not the applicant. Ms Bronner also said in cross-examination that when they arrived at Wickham the applicant had passed an axe to her which came from the boot of the co-accused’s car.

10. Mr Austin also put to her that she had decided to give evidence which implicated the applicant because she knew that the applicant was going to Queensland, which she denied. Ms Bronner said that the reason the applicant was going to Queensland was because of what had happened at Wickham on 7 March 2015.

11. Ms Bronner was then cross-examined by Mr Massey, who appeared for the co-accused. She agreed that the co-accused did not want Mr Gorman’s firearm in his car and that the applicant had assured him that the gun was safe because it was not loaded and he did not have any ammunition. They had previously heard a bang which was assumed to be a single shot going off. She agreed that the applicant had tried to give the co-accused the axe from his bag in the boot but that the co-accused had refused to take it and that she had said that she would take it. Ms Bronner also accepted that the co-accused was not armed at all when they went to the deceased’s home. Ms Bronner said that the co-accused had been reluctant to go in, although the applicant wanted him to, and that the co-accused had only gone in because she had gone in with the applicant. Ms Bronner denied the suggestion by Mr Massey that there were only two people present in the deceased’s house that night, apart from the deceased: herself and the applicant. She maintained that she was there with both the applicant and the co-accused. She denied the suggestion that she had only said that the co-accused was there because she did not want to be charged herself.

12. When the court resumed on Friday 6 October 2017, Mr Massey foreshadowed that he would be making a no case submission at the close of the Crown case in respect of count 1. The Crown ultimately accepted that there ought be a directed verdict of acquittal for the co-accused in respect of count 1.

The successful no case submission by the co-accused and the withdrawal of the applicant’s counsel

13. On Monday 9 October 2017, the Crown closed its case. Her Honour decided to direct a verdict of acquittal in respect of the co-accused in respect of count 1: R v Nikolovski (No 2) [2017] NSWSC 1451. When Mr Austin informed the applicant of the effect of the directed verdict, the applicant apparently raised other matters with Mr Austin which made it impossible for Mr Austin and his solicitor to continue to represent the applicant in the proceedings. Mr Austin indicated that he would attempt to locate another barrister who could step into the matter on behalf of the applicant. As a consequence, the trial judge brought the jury back and directed them to return the not guilty verdict in respect of the co-accused for count 1. After her Honour had taken the directed verdict, she informed the jury that they would not be required until Wednesday 11 October 2017.

The decision that the co-accused’s plea to count 2 would be taken in the absence of the jury

14. On Tuesday 10 October 2017, the Court resumed with only the co-accused appearing by his counsel Mr Massey. The trial judge was told that the co-accused would enter a plea to the second count. Her Honour decided that, as a matter of fairness to the applicant, the plea ought be entered in the absence of the jury. Her Honour gave ex tempore reasons for the decision on 10 October 2017. Her Honour said, of present relevance:

“… If Mr Nikolovski enters a plea of guilty in front of the jury to count 2 or, pleading guilty in the absence of the jury the jury is subsequently advised of the plea that he has entered, it seems to me that there is a risk, perhaps even a significant risk, of prejudice to the accused Petryk.

In that the Crown’s case rests upon the evidence of Phoebe [sic] Bronner any jury seeing or hearing of a plea of guilty by Mr Nikolovski to count 2 would almost inevitably conclude that Ms Bronner was correct in her evidence in so far as it touched upon Mr Nikolovski. That would have the effect of significantly boosting her credibility in a way which would occasion prejudice to Mr Petryk in that he could not challenge that particular conclusion.

… What I had proposed to tell the jury is simply that the trial against Mr Nikolovski could not continue. I would discharge them with respect to his trial and then give them a direction directing them not to speculate about the reason why the trial against Mr Nikolovski could not continue. …”

15. When the matter resumed on Wednesday 11 October 2017, the Court was told that representation was available for the applicant but that his new legal representatives would not be ready to continue until Monday 16 October 2017. Her Honour took the plea to count 2 from the co-accused in the absence of the jury. On Thursday 12 October 2017, her Honour discharged the jury in relation to the trial of the co-accused and informed the jury that the trial against the applicant would be likely to continue on Monday 16 October 2017.

The applicant’s new counsel and the change in instructions

16. On Monday 16 October 2017, Mr Webb appeared for the applicant. He informed the trial judge that there had been “a specific change of instructions in respect of one important witness”. He indicated that he was having discussions with the Crown about whether prosecution witnesses would be recalled. The matter was adjourned for a short period for Mr Webb to obtain instructions. Her Honour, after further discussion, adjourned the matter until midday on Tuesday 17 October 2017. Further material, including a summary of evidence prepared in her Honour’s chambers, was provided by the Court to counsel to assist Mr Webb in his preparation.

17. At noon on Tuesday 17 October 2017, Mr Webb applied for a further adjournment until the following day on the basis of the applicant’s illness, which was granted. When the matter resumed on Wednesday 18 October 2017, Mr Webb informed the Court that there would not be a defence case. When the jury returned to the courtroom, her Honour identified the exhibits which no longer formed part of the trial and asked the jurors to remove them from their folders. The Crown’s address began and was completed before the luncheon adjournment.

Defence counsel’s closing address

18. In the defence closing address, Mr Webb emphasised the importance of Ms Bronner’s evidence. He reminded the jury that, at the commencement of the trial, the Crown case had been that the co-accused was guilty of both counts. He said, of the co-accused:

“…Keep in mind of course that that word was at the start of this trial, hoped, supposed to convict Jesse Nikolovski. The Crown case was that he was there and I suggest to you there’s no doubt he was there, no doubt he was there whatsoever.

Nikolovski, as you know, was in a relationship with her, she’s relatively young …

The common temptation, you might think, in those circumstances, and there was a reference to this by the Crown, the common temptation you might think, and referred to, I think, by the Crown as human nature, is to minimise the involvement perhaps of some and of course that might involve, if you want your story to be carried off by the police and used, maximising somebody else’s involvement.

Now the Crown wasn’t suggesting, I hasten to add, that Ms Bronner had done that, the Crown was suggesting that you would find that despite that being a possibility of human nature. The urge where you’ve got a particular attachment to somebody to maybe rewrite the script a little bit, maybe a little bit of fudging here and there, to make that person that you have an attachment to just a little bit less guilty, maybe even not guilty, maybe you’ll be able to get away with telling a story that involves somebody else in such a way that they become the guilty party and the person for whom you have an obvious feeling and an attachment becomes a minor player. And in the broad scheme of this trial the submission I propose to develop to you after lunch is that it would be with great reluctance that you would rely on those elements of what Phoebe [sic] Bronner has told you to convict this accused of an offence of murder …”

19. In the absence of the jury, her Honour said to Mr Webb:

“HER HONOUR: …[T]he case that was advanced before the jury in summary is that your client wasn’t there, had nothing to do with it, that the true offenders were Bronner and possibly Gorman. That’s what was put.

WEBB: Well that was certainly suggested but I don’t intend to make a direct submission to that effect,

HER HONOUR: No, no I understood you wouldn’t but my concern is that you go the other way and make a submissions for which there’s no evidence and which was never raised with relevant witnesses….I mean if it was to be suggested for example that Nikolovski’s the shooter and she’d lied about that to protect her boyfriend that was never put to her.

WEBB: Well it was put - no not directly but it was put to her that this accused wasn’t there.

HER HONOUR: That’s right.

WEBB: It’s open to them. From the juries’ perspective if they are of the view that that might be so, then they are entitled to take the view that in fact what she’s doing is covering for the boyfriend. I intend to - I mean I effectively already suggested that.

HER HONOUR: Well that’s why I raise it because it seemed to me you’re going very close to suggesting a proposition that least or no evidence which had never been raised with relevant witnesses and therefore wasn’t available to be suggested.

WEBB: Well.

HER HONOUR: But you know your obligations.

WEBB: No I do your Honour but if I’m mistaken about it then we need to deal with it now, but it might--

HER HONOUR: I would suggest you’re mistaken if you think that it is open to the accused to now submit to this jury that whilst she was present he was not the shooter, for example and Nikolovski was the shooter because that was not the case put to the jury.

WEBB: I won’t be suggesting he was present. I will certainly maintain what appears to be the position as I see the reading of the transcript that there is a reasonable doubt as to whether or not he was there at all.

HER HONOUR: Yes well his case was that as it was put to witnesses was that he was not there. Not that he was there in some other role, but that he was not there.

WEBB: No I understand that.

HER HONOUR: All right.

WEBB: On the other hand if the jury come to the view that he was then they’re entitled to consider even in that situation who was playing what role.

HER HONOUR: They are but obviously on the basis the evidence that’s been given before them [and not] on the basis of some speculation. Particularly in circumstances where it wasn’t raised with relevant witnesses to give them the opportunity to comment upon it. I mean that’s the real difficulty it seems to me but you can’t now put a positive proposition that was never put to the witness who was in a position to contradict it.

WEBB: No I understand that.”

20. Mr Webb resumed his closing address which concluded before 4pm.

The summing up

21. Her Honour began the summing up on 18 October 2017. After the jury left for the day, her Honour raised with Mr Webb his insinuation to the jury that everyone but the applicant had got off scot-free: the co-accused because he was no longer in the trial (which would have been misleading as he had pleaded guilty to the second count although the jury was unaware that this was the reason); and Ms Bronner because she had been given an indemnity against prosecution. There was discussion about what ought be done to correct this impression.

22. On 19 October 2017, her Honour resumed the summing up. In the course of outlining the Crown case, her Honour said:

“When you are considering that evidence you would also, of course, consider what has been put to you for Mr Petryk. You know that Phoebe [sic] Bronner was cross-examined and it was suggested to her that Mr Petryk was simply not involved in this incident at all. That is his case to you and you would have regard also to what he says through his cross-examination of the witnesses before you.”

23. Her Honour said further of the applicant’s case:

“Mr Petryk’s case as you know is that Ms Bronner is not someone you would accept as a reliable witness, that you simply could not act on her evidence as credible evidence and you could not be satisfied that in fact he did any of those things, indeed that he had any involvement or was even present on this night. We know that it was suggested to Ms Bronner that it was she and perhaps Mr Gorman who were the true robbers.”

24. Her Honour warned the jury about the potential unreliability of a person such as Ms Bronner who had been given indemnity by the prosecution. Her Honour also said:

“You will recall when she was cross-examined there were a number of motives suggested to Ms Bronner as to why she may have lied to the police in giving her account of the shooting of Mr Parry. Mr Austin, who was then acting for Mr Petryk as you will remember, put to her that she had been in a sexual relationship with Mr Petryk, that it ended and that there was some bad feeling as a result of that. He suggested to her that because she was aware that he was leaving for Queensland because of that problem from the hotel at Lambton she regarded him, in effect, as a sort of a fall guy, a useful person who could take the rap and that she nominated him as being involved for those reasons.

Those suggestions, as you know, were denied by Ms Bronner, but regardless of that you must bear in mind that there may be reasons why she has lied that Mr Petryk does not know about, that no-one knows about, and it is not for Mr Petryk to establish to you that there is a basis upon which she has lied. It is for the Crown always to prove his guilt beyond reasonable doubt and you should understand that criminally involved witnesses, indemnified witnesses, may be unreliable as I have said to you.”

25. Her Honour said, of the applicant’s case with respect to Mr Gorman’s evidence:

“Finally, when you consider the evidence of Mr Gorman you should consider what was put to him by Mr Petryk in cross-examination of Mr Gorman as a witness. It was suggested to him essentially that either he was directly involved in the robbery himself, or he had given the gun to Ms Bronner and that she had been involved in the robbery with the gun on the night of 6 March and, if that were to be so, that may well provide a motive as to why he would lie you might think.”

26. Her Honour told the jury that she would briefly touch on the addresses of counsel as they only heard them the day before. Her Honour, when summarising the defence case, referred to the importance of Ms Bronner and the challenge that had been made to her credibility, in part because she had been given an indemnity. Her Honour reminded the jury not to speculate about why the co-accused was no longer in the trial and informed the jury that it “was not Mr Webb’s intention to suggest to you that [the co-accused] has walked away”.

27. Her Honour also said:

“The only evidence, Mr Webb said, that can convict [the applicant] is that of Ms Bronner and she is just not a good enough witness to accept.”

28. No objection was taken by Mr Webb to her Honour’s summing up.

Ground 1: alleged error in not allowing defence counsel to put certain matters in closing address

29. Mr Ramrakha, who appeared on behalf of the applicant, submitted that the effect of what her Honour said to Mr Webb in the absence of the jury during his closing address was to prevent him from putting to the jury a viable alternative hypothesis consistent with innocence. He submitted that, although the applicant’s case had been conducted by Mr Austin on the footing that the applicant was not present at the deceased’s home at Wickham when the shooting occurred (the absence hypothesis), the applicant was entitled to have put a further hypothesis: that he was present when the shooting occurred but had not been the shooter (the non-shooting hypothesis). Mr Ramrakha contended that her Honour was not entitled to prevent Mr Webb from putting the non-shooting hypothesis to the jury. He submitted that her Honour ought not to have stopped Mr Webb from putting to the jury that, because of Ms Bronner’s prior relationship with the co-accused, she had exaggerated the applicant’s role and diminished the co-accused’s role.

30. Mr Ramrakha cited authorities to the effect that the rule in Browne v Dunn (1893) 6 R 67 (that a party is not entitled to put a submission where the party has not put the matter to a relevant witness to give the witness an opportunity to provide an answer) does not apply strictly in criminal proceedings.

31. The difficulty with this submission is that, before her Honour made the remarks set out above, Mr Webb had already made submissions about that very matter to the jury in the passage highlighted above. The jury would have understood that section of the closing to be a reference to the hypothesis that Ms Bronner had given evidence which exonerated the co-accused from the murder charge and implicated the applicant. The submission carried with it an implication that the applicant was actually there at the deceased’s home at Wickham but had not been the shooter.

32. In effect, her Honour raised the issue because of a concern that Mr Webb would develop the submission in such a way as to put a positive proposition for which there was no evidence, as distinct from raising a possibility which had not been excluded by the Crown, as he had done in the first segment of his closing. Although her Honour’s remarks were couched in terms of the matters not put to Ms Bronner, this did not amount to a strict enforcement of the rule in Browne v Dunn. Rather, her Honour was concerned that there was no evidence that Ms Bronner had been influenced by her relationship with the co-accused. Had it been put to Ms Bronner, her answer might have constituted evidence sufficient to put the positive proposition. However, as it was not, the highest it could be put was as a hypothetical possibility, which is how it was put at the beginning of the defence opening. In any event, as set out above, the Crown had elicited evidence from Ms Bronner in her evidence in chief to exclude the hypothesis that her relationship with the co-accused had inclined her to give evidence favourable to him.

33. The outline of the relevant events in the trial demonstrates the context in which her Honour’s remarks appeared. Mr Webb was not appointed trial counsel for the applicant until after the close of the Crown case. He had been given the opportunity to have any prosecution witness recalled in order to put matters to him or her. Ms Bronner was plainly a witness who must have been considered as a candidate for being recalled. Mr Webb can be taken to have decided, for good forensic reasons, not to recall Ms Bronner. To put again to Ms Bronner that the applicant was not there and then put, in the alternative, that if he was, he was not the shooter would hardly have engendered confidence in the applicant’s primary case. Although there are occasions when counsel might decide to engage in such an exercise, it is understandable that Mr Webb decided not to in the present case. This was an objectively reasonable forensic decision by which the applicant is bound: R v Birks (1990) 19 NSWLR 677 at 685 (Gleeson CJ).

34. In the defence closing address, her Honour was entitled to make Mr Webb aware of the way in which the trial on behalf of the applicant had been conducted, in case his trial preparation had left him in any doubt about it. In the passage extracted above, Mr Webb did not maintain his initial objection to what her Honour was putting and appeared to accept its correctness. In particular, he did not maintain that it was necessary for him to put the non-shooting hypothesis to the jury in his closing address as a non-fanciful hypothesis which had to be excluded by the Crown in order to raise it as a viable hypothesis which ought to be included in the summing up. He can be taken to have chosen to accept the force of her Honour’s observations and leave the point as he had put it before her Honour made the remarks. Mr Webb is an experienced criminal trial counsel. No allegation was made on behalf of the applicant that he was incompetent.

35. We are not persuaded that in the interchange with Mr Webb set out above, her Honour was in error. The relevant principle, which her Honour sought to enforce, was that counsel is not entitled to put as a positive proposition any matter for which there was neither evidence nor grounding in the cross-examination. This did not amount to an inappropriate adherence to Browne v Dunn. Rather, it constituted an appropriate control on counsel by the trial judge who might otherwise have been obliged to remind the jury that there was no evidence of the proposition put by Mr Webb in closing address and that Mr Austin had not put the proposition to Ms Bronner in cross-examination.

36. In these circumstances it is not necessary to address the effect of Browne v Dunn in criminal cases. It is sufficient to observe that it has been authoritatively held that the rule is to be applied in criminal cases with due regard to the nature and course of the proceedings: MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329 (MJW) at [18] (Gleeson CJ and Heydon J). Trial judges are generally to abstain from making adverse comments about parties and witnesses where the rule has not been complied with: MJW at [39] (Gummow, Kirby and Callinan JJ). It is not for the defence to clear up inconsistencies in the prosecution case by cross-examining prosecution witnesses about such inconsistencies: MJW at [41].

Ground 2: alleged miscarriage of justice arising from the summing up

37. Mr Ramrakha contended that ground 2 was related to ground 1. He submitted that the trial judge’s prohibition on Mr Webb putting the non-shooting hypothesis as a positive proposition had the effect that her Honour failed to put to the jury in the summing up that hypothesis as a viable hypothesis consistent with innocence which had to be excluded by the Crown beyond reasonable doubt. He submitted that her Honour limited the applicant’s case to the absence hypothesis and that there was, accordingly, a miscarriage of justice because her Honour failed to put the applicant’s case accurately and fairly to the jury.

38. Mr Ramrakha submitted that, by the time her Honour delivered the summing up, it ought to have been evident to her Honour (including from the exchange with Mr Webb set out above) that the applicant had changed his mind about how he wanted his case to be put. Although his primary case remained that he was not present at the deceased’s home when the deceased was shot, the applicant wanted the jury to consider his alternative case based on the non-shooting hypothesis. He contended that the jury was likely to have been confused by what her Honour said about needing to consider the propositions put at trial in the context of cross-examining witnesses. He also contended that her Honour invited the jury to consider a case which the applicant had abandoned (that Ms Bronner and Mr Gorman had been the robbers). He submitted that her Honour highlighted the change to the jury and thereby created a risk of unfair prejudice to the applicant.

39. Mr Ramrakha contended that her Honour’s omission to put the hypothesis that the co-accused was the shooter was erroneous and caused the applicant to lose a realistic chance of acquittal. He submitted that her Honour’s reference to the possibility that Mr Gorman was the shooter neutered Mr Webb’s submissions about the role of the co-accused and the importance of Ms Bronner’s attachment to the co-accused which may have led her to attribute the acts of the co-accused to the applicant. Mr Ramrakha relied on Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42 (Barca) in which a conviction was quashed because the hypothesis that the appellant’s father had committed the murder, for which there was some support in the evidence, had not been left to the jury.

40. Mr Ramrakha said that although Mr Webb had not complained about the summing up, this might have reflected his acceptance that any redirection would have simply highlighted the inconsistency for the jury.

41. The first point is that the applicant maintained his primary case throughout: that he was not present when the deceased was shot. This was made clear by Mr Webb in his closing address to the jury and also in his exchanges with her Honour in the absence of the jury. Further, although Mr Webb told her Honour that he did not intend to make a “direct submission” that Ms Bronner and Mr Gorman were the robbers, this does not amount to an abandonment of that hypothesis. The submission that her Honour invited the jury to consider a case which had been abandoned must be rejected.

42. Trial judges have a duty when summing up to summarise the respective cases of the parties fairly and in a way that does not cause undue prejudice to the accused: Domican v The Queen (1992) 173 CLR 555 at 561 (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ); [1992] HCA 13. In Cleland v The Queen (1982) 151 CLR 1 at 10; [1982] HCA 67, Gibbs CJ described the duty as requiring the trial judge to “hold an even balance between the cases of the prosecution and the accused.” A trial judge is entitled, and may in some circumstances be obliged, to comment if fairness requires the correction of an incorrect impression given to the jury. In McKell v The Queen (2019) 264 CLR 307; [2019] HCA 5, the majority (Bell, Keane, Gordon and Edelman JJ) said at [54]:

“The present case affords another example of an appropriate occasion for judicial comment, in that fairness required that the trial judge correct the impression mistakenly left by the plainly untenable suggestion by the appellant's counsel to the jury that the appellant's online accounts were evidence that the appellant was a successful gambler. A correction of this kind, to correct errors of expression or errors that might otherwise adversely affect the jury's ability to decide the case fairly on the merits, is plainly not objectionable.”

43. The passages extracted above from the summing up are sufficient to indicate that the jury was told that the applicant’s case was that he had no involvement in the killing of the deceased; he was not the shooter and may not even have been there. Her Honour reminded the jury that it had been suggested in cross-examination that Ms Bronner and Mr Gorman were the robbers who had come to the deceased’s house and that it had also been suggested to Ms Bronner that the applicant had not been involved at all. Given that the summing up took place on 18 and 19 October 2017 and that both addresses had been given on 18 October 2017, her Honour was entitled to summarise the cases relatively briefly. Further, it was open to her Honour not to highlight the inconsistency between the applicant’s primary case and his alternative case. Indeed, it would have been difficult to do so without casting aspersions on the applicant’s case. It was sufficient in this respect for her Honour to refer in relatively broad terms to Mr Webb’s address, which would have been fresh in the jury’s memory.

44. The present case is to be distinguished from Barca where the trial judge, erroneously, directed the jury that there was no evidence that the appellant’s father had committed the murder (this being one of the hypotheses consistent with innocence on which the appellant relied). The majority (Gibbs, Stephen and Mason JJ) said at 105:

“The remarks made by the learned trial judge when he intervened at the conclusion of the address by defence counsel could only have been understood as meaning that it would be wrong for the jury to accept that the evidence was consistent with the hypothesis that the murder had been committed by Carmello Barca. In other words, the jury were in effect directed to reject one of the main arguments put forward on behalf of the defence, and to decide one issue of fact in favour of the prosecution. This was a misdirection. It was for the jury to decide for themselves whether they were satisfied that the evidence as a whole was inconsistent with the hypothesis that Carmello Barca and not the applicant had murdered the deceased. … [A]lthough a jury cannot be asked to engage in groundless speculation it is not incumbent on the defence either to establish that some inference other than that of guilt should reasonably be drawn from the evidence or to prove particular facts that would tend to support such an inference. …The evidence showed that Carmello Barca had at least as strong a motive to kill the deceased as that attributed to the applicant, that he had been enraged at the deceased's behaviour and had in consequence threatened him and that he had threatened Mrs. Petula in an endeavour to persuade her to give false testimony as to the time at which the applicant returned to her house after he had driven away with the deceased. In these circumstances it was open to the jury to think that the hypothesis that Carmello Barca had committed the murder could reasonably be based upon the evidence.”

45. In Barca, there was evidence to implicate the appellant’s father which meant that the hypothesis that it was the appellant’s father, and not the appellant, who killed the deceased had to be specifically left to the jury and the evidence for that hypothesis summarised. In the present case, there was evidence that Ms Bronner and the co-accused had been in an intimate relationship. This was the only basis for the suggestion that Ms Bronner had falsely attributed the shooting to the applicant when the shooter was, on the applicant’s case, the co-accused. In these circumstances it was sufficient for her Honour to direct the jury that they had to be satisfied, for count 1, that the applicant was the shooter. Moreover, for her Honour to emphasise the non-shooter hypothesis in the summing up ran the risk of undermining the applicant’s primary case that he was not there. These matters are plainly matters for the judgment of the trial judge in the context of the trial.

46. It is significant that Mr Webb did not request any alteration to be made or redirection given in the summing up. He can be taken to have been acutely aware of the difficulties occasioned by the applicant’s change in instructions which led to Mr Austin’s withdrawal and his own retainer late in the trial. Accordingly, Mr Webb must have been particularly conscious of the way her Honour dealt with the issue in the summing up. That he sought no further comment or direction is a powerful indication that he did not consider there to be any unfairness to the applicant which could be remedied by her Honour in the summing up: R v Saffron (1988) 17 NSWLR 395 at 434 (Hope JA, Clarke JA agreeing).

Leave to appeal out of time, leave under s 5 of the Criminal Appeal Act and leave under rule 4 of the Criminal Appeal Rules

47. The delay in filing the notice of appeal has been explained and was occasioned by an administrative error at the Legal Aid Commission. In these circumstances time ought be extended pursuant to s 10(1)(b) of the Criminal Appeal Act 1912 (NSW) for the filing of the notice of appeal.

48. The applicant contended that ground 1 did not require leave since it involves a question of law alone. We do not accept this characterisation. The test was authoritatively stated by Gibbs CJ in Williams v The Queen (1986) 161 CLR 278 at 287; [1986] HCA 88:

“… [T]here is ‘a question of law alone’ if the question of law can be stated and considered separately from the facts with which it may be connected in a given case.”

49. In substance, the applicant’s argument on ground 1 was that her Honour failed to apply the correct principles and erroneously limited defence counsel’s address. The distinction between a ground that involves a mixed question of fact and law on the one hand and a ground that involves a question of law alone on the other was considered by this Court in R v PL [2009] NSWCCA 256; (2009) 199 A Crim R 199. Spigelman CJ (McClellan CJ at CL and R A Hulme J agreeing) said at [26]:

“Even if his Honour erred in applying the correctly stated principle, that process necessarily encompassed an assessment of the facts. The process of ‘applying’ a legal principle to the facts of a case involves a mixed question of fact and law …”

50. Accordingly, ground 1 requires leave under s 5(1)(b) of the Criminal Appeal Act. We are disposed to grant leave, having regard to the importance of the principles set out above, but dismiss the appeal.

51. It was accepted by Mr Ramrakha that ground 2 required leave under rule 4 of the Criminal Appeal Rules and also under s 5(1)(b) of the Criminal Appeal Act. We are not disposed to grant leave under rule 4. For the reasons we have given above, we do not consider that the alleged omission by the trial judge should be allowed as a ground of appeal, having regard to the circumstance that no complaint was made about the summing up by Mr Webb at trial.

Orders

52. For the reasons given above, the Court makes the following orders:

1. Extend the time for filing the notice of appeal/notice of application for leave to appeal to 9 March 2020.

2. Grant leave to appeal with respect to ground 1.

3. Refuse leave under rule 4 of the Criminal Appeal Rules with respect to ground 2.

4. Dismiss the appeal on ground 1.

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Amendments

15 July 2020 -

[29] & [31] - "Mr Webb" substituted for "Mr Austin"

Decision last updated: 15 July 2020