Haile v R [2022] NSWCCA 71

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Haile v R [2022] NSWCCA 71 Hearing dates: 16 March 2022 Date of orders: 29 April 2022 Decision date: 29 April 2022 Before: Bell CJ at [1] Bellew J at [4] Ierace J [259] Decision: (1) The time for filing the notice of appeal is extended to 13 August 2021. (2) The appeal against conviction is allowed. (3) The appellant's conviction and sentence are quashed. (4) The matter is remitted to the arraignments Judge on 6 May 2022 to set a new trial date. Catchwords: CRIMINAL LAW – Practice and procedure – Summing-up of trial judge – Where appellant was convicted by a jury of murder – Where principal Crown witness gave an account of the shooting of the deceased – Where that account was contradicted by the sworn evidence of the appellant – Where the trial judge gave directions in terms of the jury having to "choose" or "decide" between the two accounts – No direction given to the jury regarding fact that the appellant had given evidence – No direction given to the jury as to how the appellant's evidence should be assessed in circumstances where the Crown had the onus of proof – Where the trial judge refused an application for a Liberato direction – Directions of trial judge erroneous – Refusal to give a Liberato direction also erroneous – Appeal allowed and new trial ordered CRIMINAL LAW – Practice and procedure – Summing-up of trial judge – Where trial judge expressed a number of views in the course of the summing-up which were critical of aspects of the appellant's evidence in the course of his summing-up – Absence of any clearly defined summary of the appellant's case in the summing up – Where the trial judge put propositions to the jury which had not been advanced by the Crown – Summing-up generally lacking in fairness and balance – Appeal allowed and new trial ordered – Observations as to the extent to which comments by the trial judge as to the evidence and the facts is permissible CRIMINAL LAW – Juries – Where trial judge discharged a juror at a relatively early stage of the appellant's trial – Where the trial judge subsequently discharged two other jurors on the basis of the stress and anxiety associated with the trial – Where trial judge then refused an application to discharge the whole jury following the discharge of the third juror – Where verdict of guilty followed virtually immediately following the discharge of the third juror – Clear inference that the views of the third juror were at odds with the majority – Risk of miscarriage of justice arising from the refusal of the trial judge to discharge the jury – Appeal allowed and new trial ordered CRIMINAL LAW – Practice and procedure – Directions of trial judge – Where jury indicated that they were unable to reach a unanimous verdict – Where trial judge then gave what he described as an "adaptation" of a Black direction – Where that direction departed from the model direction and omitted a material part – Where the direction which was given contributed to the miscarriage of justice which arose from the subsequent failure to discharge the jury – Appeal allowed and new trial ordered – Observations as to the undesirability of departing from the terms of the model direction which is given in response to an indication that the jury are unable to reach a unanimous verdict CRIMINAL LAW – Practice and procedure – Juries – Where deliberations were permitted to continue on two separate occasions for substantial periods of time in the absence of all members of the jury being present – Where the trial judge had not made any order for separation of the jury – Where the trial judge had not directed the jury at any stage that deliberations should only take place when all members of the jury were present – Whether either instance of separation amounted to an irregularity – If so whether such irregularity gave rise to a miscarriage of justice and was thus material – Material irregularity established – Appeal allowed and new trial ordered – Observations as to the importance of making orders allowing a jury to separate during deliberations – Further observations as to the importance of directing juries at the commencement of, and during, the trial that deliberations must only be undertaken when all members of the jury are present Legislation Cited: Criminal Appeal Act 1912 (NSW) Criminal Procedure Act 1986 (NSW) Jury Act 1977 (NSW) Jury Amendment Act 2010 (NSW) Cases Cited: B v The Queen (1992) 175 CLR 599; [1992] HCA 68 BG v R [2012] NSWCCA 139; (2012) 221 A Crim R 225 Black v The Queen (1993) 179 CLR 44; [1993] HCA 71 Castle v The Queen (2016) 259 CLR 449; [2016] HCA 46 Cleland v The Queen (1982) 151 CLR 1; [1982] HCA 67 Connelly v Director of Public Prosecutions [1964] AC 1254 Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22 De Pledge v Western Australia [2021] WASCA 1; (2021) 95 MVR 37 De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48 Decision Restricted [2021] NSWCCA 227 Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57 Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13 Douglass v The Queen (2012) 290 ALR 699; [2012] HCA 34 El-Jalkh v R [2009] NSWCCA 139 Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 Jenkins v Director of Public Prosecutions [2013] NSWCA 406 Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66 McKell v The Queen (2019) 264 CLR 307; [2019] HCA 5 Murray v The Queen (2002) 211 CLR 193; [2002] HCA 26 Phan v R [2018] NSWCCA 225 Popovic & Ors v R [2016] NSWCCA 202 R v Alexander [1974] 1 WLR 422; [1974] I All ER 539 R v Bates [1985] 1 NZLR 326 R v Chaouk [1986] VR 707 R v Courtney-Smith (No. 2) (1990) 48 A Crim R 49 R v Dempster (1980) 71 Cr. App. Rep. 302 R v E (1995) 89 A Crim R 325 R v Esposito (1998) 45 NSWLR 442 R v Forbes [2005] NSWCCA 377; (2005) 160 A Crim R 1 R v Haile [2016] NSWSC 1732 R v Hodgkinson [1954] VLR 151 R v Ketteridge [1915] 1 KB 467 R v Locchi (1991) 22 NSWLR 309 R v Machin (1996) 68 SASR 526 R v Marsland (unreported, Court of Criminal Appeal, NSW, No 60263 of 1990, 17 July 1991) R v Meher [2004] NSWCCA 355 R v Minarowska (1995) 83 A Crim R 78 R v Pavlukoff (1953) 106 CCC 249 R v Riley [1982] 1 NZLR 1 R v Roberts [2004] QCA 366 R v Skaf & Anor (2004) 60 NSWLR 86; [2004] NSWCCA 37 R v Spiteri-Ahern [2018] NSWSC 1072 R v Spiteri-Ahern, Barber and Zraika [2017] NSWSC 1820 R v Twiss [1918] 2 KB 853 RPS v The Queen (2000), 199 CLR 620; [2000] HCA 3 South v R [2007] NSWCCA 117 Spiteri-Ahern v R [2022] NSWCCA 56 Tennant v R [2006] NSWCCA 208 Trevascus v R (2021) 104 NSWLR 571; [2021] NSWCCA 104 Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 Wu v The Queen (1999) 199 CLR 99; [1999] HCA 52 Category: Principal judgment Parties: Daniel Haile – Appellant Regina – Respondent Representation: Counsel: B Rigg SC and J Brock – Appellant E Balodis – Respondent