Awad v The Queen [2022] HCA 36

HIGH COURT OF AUSTRALIA

KIEFEL CJ,

GORDON, EDELMAN, STEWARD AND GLEESON JJ

Matter No M44/2022

DANNY AWAD APPELLANT

AND

THE QUEEN RESPONDENT

Matter No M45/2022

JOHN MICHAEL TAMBAKAKIS APPELLANT

AND

THE QUEEN RESPONDENT

Awad v The Queen Tambakakis v The Queen

[2022] HCA 36

Date of Hearing: 13 September 2022

Date of Judgment: 9 November 2022

M44/2022 & M45/2022

ORDER

In each matter:

1. Appeal allowed.

2. Set aside paragraph 2 of the orders made by the Court of Appeal of the Supreme Court of Victoria dated 18 October 2021 dismissing the appeal and, in its place, order that:

(a) the appeal against conviction be allowed;

(b) the appellant's conviction be set aside; and

(c) there be a new trial.

On appeal from the Supreme Court of Victoria

Representation

B W Walker SC with O P Holdenson KC for the appellant in M44/2022 (instructed by Milides Lawyers)

D A Dann KC with P J Smallwood for the appellant in M45/2022 (instructed by Stephen Andrianakis and Associates)

P J Doyle SC with C J Tran for the respondent in both matters (instructed by Commonwealth Director of Public Prosecutions)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Awad v The Queen

Tambakakis v The Queen

Criminal Practice – Appeal – Error or irregularity in trial – Directions to jury – Where credibility of one accused giving evidence central to both trials – Where trial judge directed jury that innocent person can do nothing more than give evidence – Where trial judge directed jury that guilty person may give evidence in hope or belief they will more likely be believed – Where directions prohibited by s 44J of Jury Directions Act 2015 (Vic) – Whether misdirection constituted substantial miscarriage of justice.

Words and phrases – "charge", "conviction was inevitable", "credibility", "deflect the jury from its fundamental task", "direction", "essential to a fair trial", "fundamental error", "jury", "misdirection", "motivation to give evidence", "natural limitations", "onus of proof", "presumption of innocence", "prohibited direction", "serious departure from the prescribed processes for trial", "substantial miscarriage of justice".