(The Honourable President Livesey and the Honourable Justice David)
11 December 2023
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - MISDIRECTION OR NON-DIRECTION - JUDGE'S SUMMING UP
Appeal against conviction.
A jury found the applicant guilty of aggravated causing serious harm with intent to cause serious harm, contrary to s 23(1) of the Criminal Law Consolidation Act 1935 (‘the CLCA’).
The victim attended the home of the applicant following exchanges of text messages in relation to a drug debt owed by the applicant. The applicant and victim had a violent altercation in which the applicant stabbed the victim. At trial the applicant contended that the stabbing occurred in the course of a home invasion within s 15C(2) of the Act.
On appeal the applicant contended that a miscarriage of justice arose from the trial judge’s unbalanced direction to the jury in relation to the statutory “home invasion defence” under s 15C(2) of the CLCA. The applicant contended that the trial judge failed to put to the jury that his drug possession did not give rise to the offending, because the altercation occurred as the result of his failure to repay a drug debt which was not “criminal misconduct”, as defined.
The Court held (refusing permission to appeal):
1.Though it was suggested that the failure of the appellant to give evidence may have rendered it unnecessary for the trial judge to leave the statutory “home invasion defence” to the jury, that she did so was both understandable and entirely appropriate.
2.It is not reasonably arguable that the direction on s15C(2)(b) was unbalanced.
3.The trial judge was not required to leave for the jury a view of the facts which was untenable.
4.The applicant's approach ignored the breadth of the s 15C(2)(b) exclusion. The altercation and the offending resulted from the applicant’s drug possession. The appellant’s drug possession could not be divorced from the debt owed in respect of that possession. They remained inextricably linked. That is to say, the drug possession may have given rise to the threat or perceived threat.
[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
Walters v The King [2023] SASCA 133
Case
[2023] SASCA 133
Decision Date
CaseChat Overview and Summary
In *Walters v The King*, the applicant sought leave to appeal against a decision of the court below. The central dispute concerned an alleged miscarriage of justice arising from the judge's summing up during the applicant's trial. The appeal was heard by Livesey P and David J.
The primary legal issue before the Court was whether there was a reasonably arguable ground of appeal concerning a miscarriage of justice due to the judge's summing up. The applicant had initially proposed this ground of appeal but subsequently abandoned it.
The Court concluded that the applicant was correct to abandon the proposed ground of appeal. It was not reasonably arguable that a miscarriage of justice had occurred. The Court's reasoning, as indicated by the citations, relied on established principles regarding misdirection and the threshold for establishing a miscarriage of justice, particularly in the context of appellate review of a judge's summing up.
Permission to appeal was refused.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
The applicant was right to abandon this proposed ground of appeal. Conclusion It is not reasonably arguable that there was any miscarriage of justice.[25][25] HCF v The Queen [2023] HCA 35, [2] (Gageler CJ, Gleeson and Jagot JJ), citing Zhou v The Queen [2021] NSWCCA 278, [22] (Beech-Jones CJ in CL) which, in turn, cited Hofer v The Queen (2021) 274 CLR 351, 364-365 [41], 366-367 [47], 390 [118], 391-392 [123] and Edwards v The Queen (2021) 273 CLR 585, 609 [74]. See also AK v The Queen [2022] NSWCCA 175, [2]‑[5]. Permission to appeal should be refused.