Beech-Jones CJ at [1]; Button J at [15]; Hamill J at [18]
Decision:
(1) Leave granted to argue Grounds 1 and 2.
(2) Allow the appeal on Ground 1.
(3) Quash the appellant’s convictions on counts 2 to 5.
(4) Order a new trial.
(5) List the matter in the arraignments list in the District Court at Sydney on 26 May 2023.
Catchwords:
CRIME – appeal against conviction – jury irregularity – where judgment on admissibility mistakenly included in juror’s folder – individual juror discharged – decision to continue with jury of 11 – whether risk of miscarriage – inconsistent versions of whether document had been discussed or seen by remaining jurors – miscarriage established
CRIME – tendency evidence – directions – construction of s 161A Criminal Procedure Act – standard of proof – danger of circular reasoning process – Shepherd direction – reliance on both charged and uncharged acts – potential for misuse of evidence – potential for jury to apply wrong standard of proof to charges – need for directions to guard against prejudice – whether directions occasioned miscarriage – proposed directions flatly contrary to statute – ground of appeal dismissed
[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.
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AGLC
Rassi v R [2023] NSWCCA 119
Case
[2023] NSWCCA 119
Decision Date
CaseChat Overview and Summary
In Rassi v R, the appellant appealed against his conviction for drug-related offences, arguing that irregularities in the jury process had resulted in a miscarriage of justice. The court was required to determine whether the trial judge’s decision to continue the trial with a jury of 11, after one juror was discharged, had led to a miscarriage of justice due to the inclusion of judgment on admissibility in the juror’s folder. The appellant contended that the potential for the remaining jurors to have seen or discussed the document created an unacceptable risk of prejudice.
The court considered the potential for a miscarriage of justice arising from the jury irregularity. It examined whether the judge’s decision to continue the trial with an 11-person jury, after one juror was discharged, had led to a miscarriage of justice. The court noted the inconsistency in the jurors' accounts regarding whether the document had been seen or discussed among them. The court concluded that there was indeed a risk of a miscarriage of justice due to the potential for prejudice.
The court rejected the ground of appeal concerning the tendency evidence directions. It held that the trial judge's directions were not contrary to statute and did not occasion a miscarriage of justice. The court found that the directions were adequate to guard against the potential prejudice from the use of tendency evidence, despite the reliance on both charged and uncharged acts. The court found that the proposed directions, which the appellant argued were required, were in fact contrary to the statutory provisions.