R v Karki

Case [2002] NSWCCA 67

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      Regina v Karki [2002]  NSWCCA 67

FILE NUMBER(S):
60025/00

HEARING DATE(S):               31 October 2001
1 November 2001

JUDGMENT DATE: 18/03/2002

PARTIES:
Regina
Ivesh Karki

JUDGMENT OF:       Beazley JA Hulme J Barr J   

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S):          70214/98

LOWER COURT JUDICIAL OFFICER:     Studdert J

COUNSEL:
Crown:  G Smith
Karki:    P Boulten

SOLICITORS:
Crown:  S E O'Connor
Karki:    Glen K Walsh

CATCHWORDS:
Criminal Law
Appeals
appeal against conviction
whether proviso applies under s 6(1) of the Criminal Appeal Act 1912 (NSW)

LEGISLATION CITED:
Criminal Appeal Act 1912 (NSW), s 6(1)

DECISION:
Appeal dismissed

JUDGMENT:

IN THE COURT of

CRIMINAL APPEAL

CCA      60025/00

BEAZLEY JA
HULME J
BARR J

Monday, 18 March 2002

REGINA v Ivesh KARKI

FACTS

The appellant and a co-accused were convicted of the murder of Sajedul Haque who died after being kicked in the face and stomped on by the appellant, his co-accused and a group of others.

At the trial neither the appellant nor the co-accused gave evidence.  The trial judge gave a direction that:

“The relevance of the fact that the accused has not given evidence can only go to the value, or the weight, which you can give to the evidence which the Crown witnesses have given”.

This direction was wrong in law and this was conceded by the Crown: RPS v R (2000) 199 CLR 620; Azzopardi v R (2001) 75 ALJR 931. The appellant submitted that his conviction should therefore be quashed. The Crown argued that the proviso under s 6(1) of the Criminal Appeal Act 1912 (NSW) that ‘no substantial miscarriage of justice has actually occurred’ should be applied.

HELD per Beazley JA (Hulme and Barr JJ agreeing)

(i) The misdirection was not so fundamental such that “the proceedings have so far miscarried as barely to be a trial at all”: Glennon v R (1994) 68 ALJR 209; Wilde v R (1988) 164 CLR 365.

Per Beazley JA (Barr J agreeing)

(ii) The conviction of the appellant was inevitable:

(a) The defences of provocation and self-defence could not have been made out on the evidence.

(b) Given the severe kicking and stomping on the head of the deceased, the appellant, who was the main person involved, intended to cause grievous bodily harm to the deceased.

(c) Although there were some differences in the observations of the Crown witnesses, the consistency of their evidence as to the appellant’s participation in the attack and the nature of the attack was overwhelming.

HELD per Hulme J

(i) The defences of provocation and self-defence could not have been made out on the evidence (agreeing with Beazley JA and Barr J on this point).

(ii) Apart from the circumstances of the fight, there was no evidence that the appellant intended to inflict grievous bodily harm.

(iii) Even given the circumstances of the fight, grievous bodily harm was not an inevitable result of the kicking to and stomping on the deceased’s head.

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AGLC
R v Karki [2002] NSWCCA 67
Case
[2002] NSWCCA 67
Decision Date

CaseChat Overview and Summary

In the case of R v Karki, the appellant, Karki, appealed against his conviction. The dispute revolved around whether an error in the trial judge's direction to the jury regarding the appellant's right to silence constituted a substantial miscarriage of justice, warranting the quashing of his conviction. The case was heard by the New South Wales Court of Criminal Appeal.

The legal issues before the court were whether the error in the trial judge's direction to the jury regarding the appellant's right to silence was so fundamental that it rendered the trial a miscarriage of justice, and whether the proviso under s 6(1) of the Criminal Appeal Act 1912 (NSW) could be applied to dismiss the appeal on the ground that no substantial miscarriage of justice had occurred.

The court considered the error in the trial judge's direction to the jury, which was found to be erroneous in law, as it allowed the jury to consider the appellant's silence as a factor in assessing the weight of the Crown's evidence. The court acknowledged that the error was significant but concluded that it did not render the trial a miscarriage of justice. The court relied on previous cases, such as Wilde v R and R v Bozzola, to determine that the error did not deprive the appellant of a fair chance of acquittal. The court held that while the error was not to be condoned, it did not rise to the level of a substantial miscarriage of justice. Therefore, the appeal was dismissed under the proviso of s 6(1) of the Criminal Appeal Act 1912 (NSW).

The final orders of the court were that the appeal against conviction be dismissed. The conviction of the appellant, Karki, was upheld.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The direction of which the appellant complains was in the following terms:“However, you may when judging the value, or the weight of the evidence which has been put forward by the Crown, in seeking to prove its case against the accused, take into account the election by the accused, not to deny or contradict matters in the evidence at this trial, about which the accused could have given direct evidence. You cannot use the election of the accused not to put forward any denial or contradiction so as to fill in gaps which you might otherwise see in the evidence upon which the Crown relies. The relevance of the fact that the accused has not given evidence can only go to the value, or the weight, which you can give to the evidence which the Crown witnesses have given.” (emphasis added) That direction was wrong in law: see RPS v R (2000) 199 CLR 620; Azzopardi v R (2001) 75 ALJR 931 and this Court so held on the appeal of the co-accused Giri: R v Giri [2001] NSWCCA 197. The Crown acknowledged that his Honour’s direction was erroneous. The appellant submits that the conviction should be quashed. The Crown argues, however, that despite the error, this is an appropriate case in which to apply the proviso under s 6(1) of the Criminal Appeal Act 1912 (NSW), so that the appeal should be dismissed on the ground that no substantial miscarriage of justice has actually occurred. The proviso under s 6(1) will not be applied, namely where the convicted person has “lost a real chance of acquittal”: R v Storey (1978) 140 CLR 364 at 376. In Wilde v R (1988) 164 CLR 365 Brennan, Dawson and Toohey JJ, after referring to the authorities summarised the principle in these terms at 372:“Unless it can be said, the accused may have lost a fair chance of acquittal by the failure to afford him the trial to which he was entitled, that is to say, a trial in which the relevant law was correctly explained to the jury and the rules of procedure and evidence were strictly followed: see Mraz v The Queen (1955) 93 CLR 493 at 514. The loss of such a chance of acquittal cannot be anything but a substantial miscarriage of justice. The question whether the jury would inevitably have convicted falls to be determined by the Court of Criminal Appeal. It is a question which the Court of Criminal Appeal must answer according to its assessment of the facts of the case.” However, the question whether a reasonable jury would inevitably have convicted does not arise where the error is so fundamental such that “the proceedings have so far miscarried as barely to be a trial at all”: Wilde at 372-373. See also R v Bozzola [2001] NSWCCA 8; Glennon v R (1994) 68 ALJR 209. In the appeal of the co-accused Giri it was argued that the error was of such a nature. The Court rejected that argument. In his judgment at para 40, Heydon JA (Barr J and Smart AJ agreeing as to the principle) referred to the statement of Mason CJ, Brennan and Toohey JJ in Glennon at 710-712: “In the circumstances of this case, it cannot be said that the trial judge’s misdirection on the applicant’s right to silence was ‘so fundamental’ that the trial was ‘hardly a trial at all’. Although the right to silence is a fundamental right of any accused person, it cannot be said that any misdirection on that subject is a fundamental irregularity of the kind discussed in Wilde. In this case, the trial judge directed the jury that they were not to use the applicant’s exercise of his right to silence in a manner adverse to him. This direction was perfectly proper. However, the trial judge then qualified the direction by informing the jury that they might use the applicant’s silence to test the veracity of the applicant’s defence. This subsequent direction was clearly erroneous. However, in the context in which it appeared and at a trial in which there was other evidence on which the applicant could be convicted and in which there was no other misdirection by the trial judge, the trial judge’s misdirection was not a fundamental irregularity. We would reject the applicant’s submissions in so far as they are based on this approach to the proviso.”

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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