R v Ayoub

Case [2004] NSWCCA 209

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      Regina v Ayoub [2004]  NSWCCA 209 revised - 06/07/2004

FILE NUMBER(S):
60022/04

HEARING DATE(S):               7/5/04

JUDGMENT DATE: 28/06/2004

PARTIES:
Regina
Brian Nicholas Ayoub

JUDGMENT OF:       Grove J Howie J Newman AJ   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          03/51/0024

LOWER COURT JUDICIAL OFFICER:     Ducker ADCJ

COUNSEL:
Crown: D. Woodburne
Ayoub: P. Hamill

SOLICITORS:
Crown: C.K. Smith
Ayoub: S. O'Connor

CATCHWORDS:
Criminal Law - appeal - identification - standard of proof - negative identification - rule in Browne v Dunn - judicial intervention - warning concerning potential unreliability of defence witnesses

LEGISLATION CITED:
Evidence Act 1995 - S165 (1) (e)

DECISION:
1. Appeal upheld
2. Conviction quashed
3. New trial ordered

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

60022/04

GROVE J
HOWIE J
NEWMAN AJ

Monday 28 June 2004

R v AYOUB

Judgment

  1. GROVE J:  I have had the advantage of reading the judgments of Howie J and Newman AJ in draft form and I agree with their Honours and the orders which are proposed.

  1. HOWIE J:  In this matter the facts and circumstances giving rise to the appeal are set out in the judgment of Newman AJ. He would allow the appeal on grounds 1 and 4. I agree with the orders he proposes. However I wish to make some brief comments on these grounds and the reasons given by his Honour for allowing the appeal. I also believe it appropriate to consider aspects of one other ground of appeal.

  2. There can be no doubt that Judge Ducker’s interjection in defence counsel’s address, as set out in the judgment of Newman AJ, was unwarranted. The simple fact that his Honour intervened in the way that he did would not carry the ground of appeal. The significance of the interjection is in the timing of it and the subject matter to which it was directed.

  3. There is nothing wrong with a submission to the jury that, if there is a reasonable or real possibility that the Crown case had not been made out, they should acquit the accused. That submission is merely a different formulation of the standard direction that the jury cannot convict the accused unless they are satisfied of the offence beyond reasonable doubt. If a real or reasonable possibility exists that, for whatever reason, the Crown’s contention in support of the charge is not true, it follows that the jury cannot be satisfied beyond reasonable doubt that the Crown has made its case.

  4. With respect, it does not seem to me to matter whether the Crown case is one of identification of the accused as the offender or not. It is not uncommon for self-defence to be put to a jury in terms of whether there is any reasonable possibility that the accused acted in self-defence. That is because the jury might have difficulty in understanding that before the Crown has proved its case, it has to disprove either a positive assertion by the accused or…

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AGLC
R v Ayoub [2004] NSWCCA 209
Case
[2004] NSWCCA 209
Decision Date

CaseChat Overview and Summary

In the case of R v Ayoub, the appellant sought to appeal against his conviction for armed robbery, arguing that the trial judge had erred in his summing up by suggesting that the evidence of a particular witness needed to be carefully scrutinised. The witness, MacDonald, was not a prison informer or an accomplice, but rather a defence witness. The appeal hinged on whether the trial judge should have issued a warning to the jury regarding the potential unreliability of MacDonald’s evidence.

The primary legal issue before the court was whether the trial judge should have issued a warning to the jury concerning the potential unreliability of MacDonald's evidence. The court had to consider the circumstances under which such a warning is appropriate, particularly in relation to defence witnesses who do not fall into the categories specified in s 165(1) of the Evidence Act. The court was also required to assess whether the trial judge’s comments had potentially prejudiced the jury against the defence’s case.

The court found that the trial judge’s comments were inappropriate as MacDonald was not a prison informer or an accomplice providing evidence against the accused. The court emphasised that warnings and cautions about the potential unreliability of witnesses are usually given when the court has specific knowledge of aspects of the evidence that might undermine its reliability. Given that MacDonald was a defence witness and not implicating the appellant, such a warning was not warranted. The court also noted that judges should avoid giving such warnings routinely without a request from counsel or without consulting with counsel about the necessity and content of the warning. The trial judge had not been asked to provide such a warning by the Crown, nor had he foreshadowed his intention to do so.

Ultimately, the court concluded that the trial judge’s comments were inappropriate and may have prejudiced the jury against the defence’s case. The court allowed the appeal and ordered a retrial.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The nub of the criticism of the summing up in this regard is that his Honour treated MacDonald as if he were a prison informer in respect of whom a warning was required under s 165(1)(e) of the Evidence Act, yet he was giving evidence for the defence. On at least two occasions his Honour directed the jury that his evidence needed to be scrutinised very carefully. He advised the jury that:Sometimes people in custody do make confessions to other inmates on the belief that they will not be passed on. Sometimes it has been shown that false claims have been made of prisoners that a fellow prisoner has made a confession of some kind.At one stage his Honour went so far as to inform the jury that giving evidence of a confession by an inmate “could help the person who gave that evidence to an earlier parole or possibly a better time in gaol”. His Honour later withdrew that observation, but the fact that it was said indicates the flavour of the comments made in relation to the evidence of MacDonald. In any event even when redirecting the jury his Honour told the jury that “he was a witness of a type whose evidence really needs to be scrutinised”. Unfortunately none of these comments were apposite to a witness who was not a prison informer as that class of witness was regarded in Pollitt v The Queen (1992) 174 CLR 558 or in s 165: he was not giving evidence on behalf of the prosecution. In my view, it will rarely be appropriate for a jury to be warned to scrutinise the evidence of a defence witness with care regardless of how unreliable the witness might be. Warnings and cautions in relation to the potential unreliability of witnesses usually arise because the court has some knowledge of particular aspects of the evidence which might undermine its reliability and which might not be readily apparent to a juror. See generally R v Stewart (2001) 52 NSWLR 301; R v Fowler [2003] NSWCCA 321 at [125]. The matter or matters that call for a warning under s 165 will rarely be applicable to a witness who is not giving evidence implicating an accused person of the offence for which the accused stands trial. So, for example, where a witness falls within the class of witness mentioned in s 165(1)(d), often referred to as an accomplice, but is giving evidence for the defence exculpating the accused, no warning under the section would be appropriate at least so far as the evidence is in favour of the accused; R v Baker [2001] NSWCCA 151 applying R v OGD (1997) 45 NSWLR 744. This is because the aspect of the witness’s status that gives rise to the possibility of unreliability is no longer relevant: the potential of the witness to falsely implicate the accused in order to diminish his own culpability ceases to exist. In Fowler, above, the Court was at pains to point out that whether a warning is required under s 165 and the content of the warning if one is necessary will depend upon the issues raised in the trial. Judges should avoid routinely giving warnings under the section without a request being made by counsel or without at least raising the matter with counsel so that the issue can be addressed by the parties and the content of the warning settled. The Crown made no request for a warning about the evidence of MacDonald and his Honour did not forecast that he intended to give the jury a warning about his evidence. Once the warning is given, it is difficult to effectively withdraw it where it proves inappropriate.

Decision

Reasons for decision

GROVE J

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Ratio Decidendi

Legal Principle Established

Established by: GROVE J

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