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

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

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

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

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 Petryk v The Queen

Details

AGLC: Petryk v The Queen [2020] NSWCCA 157
Case: [2020] NSWCCA 157
Decision Date: 10 July 2020

CaseChat Overview and Summary

The appeal against conviction in Petryk v The Queen was brought before the court by the applicant, who was found guilty of murder by a jury. The applicant's defence counsel had withdrawn before the closing of the case, and new counsel made a submission in their closing that had not been put to the relevant prosecution witness. The trial judge had informed counsel that this approach was not open to them. The court was required to determine whether the trial judge erred in restricting the defence counsel’s submission. The court also needed to consider whether the trial judge failed to raise a hypothesis consistent with innocence during the summing up, despite defence counsel not requesting the trial judge to alter or add to their direction.

The court considered whether the trial judge erred in restricting the defence counsel's submission by not allowing them to make a submission that had not been previously put to the prosecution witness. The court examined whether this restriction constituted a miscarriage of justice. Additionally, the court assessed whether the trial judge failed to raise a hypothesis consistent with innocence during the summing up. The court noted that the defence counsel did not request any alteration or addition to the summing up, which was a factor in its decision. The court concluded that the trial judge's actions did not result in a miscarriage of justice and that there was no basis for the grant of leave to appeal.

The court found that the trial judge did not err in restricting the defence counsel's submission, as the approach taken was not in line with procedural fairness. The court also determined that there was no miscarriage of justice in the trial judge's failure to raise a hypothesis consistent with innocence during the summing up, as defence counsel did not request any changes to the summing up. Consequently, the court dismissed the application for leave to appeal against the conviction.

Orders