Rassi v R

Case [2023] NSWCCA 119


Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Rassi v R [2023] NSWCCA 119
Hearing dates: 29 March 2023
Date of orders: 29 March 2023, 25 May 2023
Decision date: 25 May 2023
Before: 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

Legislation Cited:

Criminal Procedure Act 1986 (NSW), s 161A

Evidence Act 1995 (NSW), s 97(1)(b)

Jury Act 1977 (NSW), s 53B

Cases Cited:

Abdallah v R [2016] NSWCCA 275

Addo v R (2022) 108 NSWLR 522; [2022] NSWCCA 141

Beattie v R [2021] NSWCCA 291

BRC v R (2020) 284 A Crim R 124; [2020] NSWCCA 176

Carbone v R [2020] NSWCCA 318

Chamberlain v The Queen [No 2] (1984) 153 CLR 521; [1984] HCA 7

Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22

Elomar v R; Hasan v R; Cheikho v R; Cheikho v R;Jamal v R [2014] NSWCCA 303

Gardiner v R [2023] NSWCCA 89

Hadchiti v R [2016] NSWCCA 63

Haile v R [2022] NSWCCA 71

Hayne v R [2022] NSWCCA 11

Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20

IMM v The Queen (2016) 257 CLR 300; HCA 14

Ith v R [2012] NSWCCA 70

JS v R [2022] NSWCCA 145

Kanbut v R [2022] NSWCCA 259

Perry v The Queen (1982) 150 CLR 580; [1982] HCA 75

Phan v R [2018] NSWCCA 225

R v Brown and Tran (2004) 148 A Crim R 268; [2004] NSWCCA 324

R v Forbes (2005) 160 A Crim R 1; [2005] NSWCCA 377

R v Hong [2009] NSWCCA 242

R v SK [2011] NSWCCA 292

SB v R [2020] NSWCCA 207

Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56

Smith v R (2010) 79 NSWLR 675; [2010] NSWCCA 325

Taylor v The Queen [2020] NSWCCA 355

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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.

No orders were made as the appeal was dismissed.

Orders

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Background

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Evidence

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Decision

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