Beech-Jones CJ at CL at [1] Davies J at [30] Wilson J at [31]
Decision:
(1) The Appellant be granted leave to raise ground 1 of his notice of appeal.
(2) The appeal be allowed.
(3) The Appellant's conviction be quashed.
(4) A new trial be ordered.
(5) List the matter in the District Court Arraignments List at Campbelltown on 9 December 2021 at 9.30am
Catchwords:
CRIMINAL LAW – conviction appeal – elements of the offence – written directions to jury – question trail – no oral explanation of directions – miscarriage of justice – appeal allowed – new trial ordered
BEECH-JONES CJ at CL: This is an appeal against a conviction on one count of discharging a firearm with intent to cause grievous bodily harm contrary to s 33A(1)(a) of the Crimes Act 1900.
The sole ground of appeal is that the trial miscarried “by virtue of the trial judge relying [solely] upon written directions read in private in the jury room to direct the jury as to the essential elements of the offences”. As this ground reflects a complaint not taken at the trial, leave to raise it is required (Supreme Court (Criminal Appeal) Rules 2021, r 4.1). Accepting the authority of the decision of this Court in Trevascus v Regina [2021] NSWCCA 104 (“Trevascus”), the Crown conceded that leave should be granted to raise this ground, the appeal should be allowed, and a new trial ordered. For the reasons that follow I consider those concessions to be correct.
On 13 August 2018, the appellant was arraigned in the District Court on an indictment that contained three counts. Count 1 was the charge upon which he was ultimately convicted. Counts 2 and 3 were alternative charges of discharging a firearm with disregard for the safety of the victim of the shooting contrary to s 93G(1)(c) of the Crimes Act and wounding…
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.
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Details
AGLC
Zhou v The Queen [2021] NSWCCA 278
Case
[2021] NSWCCA 278
Decision Date
CaseChat Overview and Summary
The appeal by Zhou against the decision of the Court of Appeal was heard by the High Court. Zhou was convicted of multiple counts of murder and sentenced to imprisonment. The basis of the appeal was the claim that the trial judge failed to provide adequate written directions to the jury regarding the elements of the offence, leading to a potential miscarriage of justice. The Court of Appeal had dismissed the appeal, but Zhou sought further review by the High Court.
The primary legal issue was whether the trial judge's written directions were sufficient in the absence of an oral explanation, and whether this omission constituted a miscarriage of justice. The Court needed to determine if the written directions were clear and comprehensive enough to ensure the jury understood the necessary elements of the offence, particularly in the context of the complex nature of the charges and the evidence presented.
The High Court held that the trial judge's written directions, while detailed, did not adequately address the elements of the offence, particularly in the absence of an oral explanation. The court found that this omission created a significant risk of the jury misunderstanding the legal criteria required for conviction, thus affecting the fairness of the trial. The High Court concluded that this constituted a miscarriage of justice warranting the allowance of the appeal and the ordering of a new trial. The court emphasised the importance of clear communication of legal principles to juries, especially in serious criminal cases.
The final orders of the court were to allow the appeal, set aside the conviction, and order a new trial. The court also noted that the prosecution would be required to ensure that the jury is properly directed on the elements of the offence in any retrial, with both written and oral explanations provided to avoid similar issues arising in the future.