R v Bachra - [2010] SASCFC 42

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BACHRA
[2010] SASCFC 42
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Gray and The Honourable Justice White)
19 October 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - CONSIDERATION OF SUMMING UP AS A WHOLE
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - EXPRESSION OF JUDGE'S OWN OPINION - PARTICULAR CASES
CRIMINAL LAW - PROCEDURE - SUMMING UP
Application for permission to appeal against conviction - Judge made comments and posed rhetorical questions in relation to aspects of the defence case during summing up - whether real risk Judge overawed jury - whether defence case not put fairly to jury - whether comments or questions caused a miscarriage of justice - application for permission to appeal granted - appeal dismissed.
R v D (1997) 68 SASR 571, applied.
Gassy v The Queen (2008) 236 CLR 293; The Queen v Joyce [1970] SASR 184; Green v The Queen (1971) 126 CLR 28; RPS v The Queen (2000) 199 CLR 620, discussed.
R v Hulse (1971) 1 SASR 327; R v MacBeth [2008] SASC 71; Tsigos v The Queen (1965) 114 CLR 671, considered.

R v BACHRA
[2010] SASCFC 42
Court of Criminal Appeal: Doyle CJ, Gray and White JJ

DOYLE CJ: Mr Bachra was found guilty by a jury on one count of assault, one count of aggravated assault, two counts of aggravated robbery, three counts of robbery, and one count of blackmail. In each case the victim was an acquaintance of his.
Mr Boucaut, counsel for Mr Bachra on appeal, submits that there has been a miscarriage of justice. He submits that in the course of the summing up to the jury the trial Judge made comments, and posed rhetorical questions, which conveyed an implication that in the Judge’s opinion the defence case on the facts was untenable and should be disregarded. Put another way, the trial Judge “carved up” submissions put by defence counsel on the facts.
Mr Boucaut does not submit that the trial Judge was not entitled to comment on the facts, nor that he was not entitled to indicate an opinion. His complaint is that the trial Judge went too far. He submits that when the summing up is considered as a whole, it is apparent from the number of comments and rhetorical questions relating to the defence case, and from the absence of any similar criticisms of the prosecution case, that the trial Judge has not allowed the defence case to be put fairly before the jury. He submits there is a real risk that the jury were overawed, or were deterred from exercising their function.
The issue is whether the manner in which the trial Judge dealt with the defence case has given rise to a miscarriage of justice.
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 R v Bachra

Details

AGLC: R v Bachra [2010] SASCFC 42
Case: [2010] SASCFC 42
Decision Date: 19 October 2010

CaseChat Overview and Summary

This matter concerned an application for permission to appeal against conviction by Manjit Singh Bachra, who had been convicted by a jury in the District Court of various offences including assault, aggravated assault, robbery, aggravated robbery, and blackmail. The prosecution's case was that Bachra engaged in a course of conduct involving demands, violence, and threats, leading the victim to part with money and property over several days. Bachra did not give or call evidence at trial.

The central legal issue before the appellate court was whether the trial Judge's summing up to the jury created a real risk of a miscarriage of justice. Specifically, the applicant argued that the Judge made strong and unfavourable comments, posed rhetorical questions, and presented counterpropositions that unfairly undermined the defence case, despite directing the jury that they were the sole judges of fact. The applicant contended that the cumulative effect of these comments, when contrasted with the Judge's treatment of the prosecution's arguments, indicated a lack of proper balance in the summing up.

The appellate court acknowledged that many judges might not have commented as firmly or as often as the trial Judge did. However, the court emphasised that the law permits considerable latitude to a trial judge in determining the best approach to assist the jury. The ultimate question was not whether the Judge expressed an opinion or whether comments were adverse to the defence, but rather whether there was a real risk that the Judge overawed the jurors or deterred them from making their own independent decisions, thereby suggesting they would be wrong to disagree with the Judge.

Permission to appeal was granted as the issue raised warranted the court's consideration. However, the appeal itself was dismissed. The court was not persuaded that the summing up, when considered as a whole, had resulted in a miscarriage of justice.

Orders

Orders of the court

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Background

Background to the litigation

It is necessary to consider the summing up as a whole. The issue is not whether the trial Judge indicated an opinion about the facts. Nor is the issue whether that opinion or particular comments made by the Judge were adverse to the defence case. The issue is whether there is a real risk that the Judge overawed the jurors, or deterred them from making their own decision. This could be because of a risk that he left them thinking there was nothing for them to decide. It could be because his comments were made in a way that left the jury thinking they would be doing wrong in differing from the Judge. There are various ways of putting the matter, but they all come down to a question of that kind.Facts I turn now to the facts of this case. The offences were committed between 10 October 2006 and 16 October 2006. The victim in respect of all counts was Mr Khare. The prosecution case was that Mr Bachra had used deception, force and threats to “extract” over $3,000 and a laptop computer from Mr Khare. Mr Khare is an international student. He moved to Adelaide in July 2005 to study. Initially he lived with three other students in a house in Clearview. They were later joined by a fifth housemate; first Mr Singh and then Mr Puri. Mr Singh moved into the house about April 2006, but moved out shortly after. Mr Puri moved in sometime between June and August 2006. Mr Bachra was a friend of Mr Puri. Mr Khare gave evidence that he first met Mr Bachra on 26 August 2006. On 27 August 2006 Mr Khare and his housemates threw a party at their house in Clearview. Mr Bachra and some of his friends were present. Mr Bachra heard that Mr Khare was interested in buying a car and approached him at the party. A conversation took place between the two. Mr Bachra offered to sell Mr Khare a car for $600. The following day, 28 August, Mr Bachra brought the car around to Mr Khare’s house so that he could inspect it. At that time Mr Bachra did not own the car. He had been using it as a loan car while his own car was being repaired by Mr Butler at his workshop. The car belonged to Mr Butler’s company. On 29 August 2006 Mr Bachra purchased the car from Mr Butler. He was given the disposal notice to transfer the registration of the vehicle into his name. The purchase price was $800 and Mr Bachra paid a deposit of $150. According to Mr Khare, Mr Bachra returned to his house on 29 August with the car. Mr Khare agreed to buy the car from Mr Bachra for $600. Mr Khare gave Mr Bachra the money and took possession of the car. He asked for the registration papers. They were not produced by Mr Bachra. There was a question at trial as to whether Mr Bachra intended to relinquish ownership of the car. Ms Demertzis, counsel for Mr Bachra at the trial, pointed out that if Mr Bachra had agreed to sell the car to Mr Khare for $600, this was $200 less than he had agreed to pay Mr Butler for it. However, it was the prosecution case that Mr Bachra needed money to pay his substantial debts. By paying a deposit of $150 on 29 August, and then selling the car on the same day, Mr Bachra was making a quick $450.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I agree with Mr Boucaut that many judges would not have thought it appropriate to comment as firmly or as often as the Judge did. But it is important to bear in mind that the law allows considerable latitude to a trial judge in deciding what approach to the facts will best assist the jury. Conclusion For these reasons, while acknowledging that Mr Boucaut’s argument was not without substance, I am not persuaded that there has been a miscarriage of justice. I would grant permission to appeal. The issue raised warranted the consideration of this Court. But I would dismiss the appeal. GRAY J: This is an application for permission to appeal against conviction. The defendant and applicant, Manjit Singh Bachra, was convicted by jury verdict following a trial in the District Court of the offences of assault, aggravated assault, three counts of robbery, two counts of aggravated robbery, and blackmail. The prosecution led evidence of a course of conduct by the defendant toward his victim. The course of conduct involved stand over demands, physical violence and threats, which caused the victim to part with money and property. The offending took place over several days. The victim was a critical witness in the prosecution case. The defendant did not give or call evidence at the trial. The detailed facts are set out in the reasons for judgment of Doyle CJ, and I only refer to the facts when necessary for an understanding of my reasons. The defendant seeks permission to appeal on the ground that a miscarriage of justice has occurred as a result of the trial Judge’s summing up, which was said to have lacked proper balance. It was complained that the Judge in summing up commented in strong terms and unfavourably on arguments and submissions put by defence counsel in the course of her closing address to the jury. Counsel for the defendant invited this Court to review the summing up in its entirety and then instanced 14 examples of what were said to be comments by the Judge that were so unbalanced when viewed collectively so as to give rise to the risk of a miscarriage of justice. Counsel accepted that none of the matters identified on a stand alone basis would warrant the conclusion that there was a risk of a miscarriage of justice. His submission was based on the cumulative effect of the comments. Counsel for the defendant accepted that the Judge when summing up directed the jury that they were the sole judges of the facts, and expressly reminded the jury that they were free to ignore any comment he might make as to the facts with which they did not agree. However, it was then submitted that notwithstanding these directions, the Judge took the jury through a number of defence counsel’s points of argument, destroying each one through a series of rhetorical questions and counterpropositions which were designed by the Judge to indicate to the jury that they should disregard defence counsel’s arguments and reason towards a finding of guilt. Counsel then contrasted this process to the Judge’s treatment of the prosecution arguments, contending that an analysis of the summing up disclosed no adverse comments of the same nature in relation to any prosecution submission.

Ratio Decidendi

Legal Principle Established

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