New South Wales Court of Criminal Appeal CITATION : R v Zreika [2002] NSWCCA 459 revised - 22/12/2002 FILE NUMBER(S) : CCA 60484/00 HEARING DATE(S) : 28 October 2002 JUDGMENT DATE : 28 October 2002 PARTIES : Toufic Zreika Regina JUDGMENT OF : Beazley JA at 1; Sperling J at 11; Carruthers AJ at 12 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/21/0188; 98/21/0226; 00/11/0144 LOWER COURT JUDICIAL Stewart DCJ OFFICER : COUNSEL : G Nicholson QC (Zreika) R Hulme SC/S Dowling (Crown) SOLICITORS : Ramrakha Jenkins (Zreika) S E O'Connor CATCHWORDS : Summing up - error in trial judge's direction - inappropriate case for proviso - miscarriage of justice LEGISLATION CITED : Crimes Act 1900 (NSW), ss27, 322(a) Criminal Appeal Act 1912 (NSW), s6(1) R v Storey (1978) 140 CLR 364 CASES CITED: Wilde v R (1988) 164 CLR 365 R v Bozzola [2001] NSWCCA 8 Glennon v R (1994) 68 ALJR 209 DECISION : Appeals upheld; Convictions quashed; New trial on all grounds; See addendum dated 20 December 2002 IN THE COURT OF CRIMINAL APPEAL CCA 60484/00 BEAZLEY JA SPERLING J CARRUTHERS AJ Monday, 28 October 2002 REGINA v ZREIKA Judgment 1 BEAZLEY JA: In this matter the appellant was convicted on three counts, two under s 27 of the Crimes Act 1900 (NSW), being an offence of wound with intent to murder and a third count under s 322(a) of the Crimes Act, being an offence of threaten a witness with intent to influence the witness not to attend. The appellant pleaded not guilty but was found guilty by a jury on 7 June 2000. There was a fourth count upon which the jury could not reach a determination and this Court is not concerned with that. 2 The appellant has appealed against his conviction on a variety of grounds. We have heard argument on the second ground, which was that his Honour erred in suggesting to the jury that disbelief of the defence evidence could strengthen the Crown case. In hearing argument on that ground, senior counsel for the appellant also made reference to the first ground of appeal, that his Honour erred in the summing up. 3 The point of this reference was to provide background to the error which the appellant alleged in his Honour's direction, contained in the second ground. That direction was in the following terms: "The disbelief of the evidence led by the defence by itself does not amount to material upon which you can be satisfied by the Crown that the accused was guilty of this crime, although such disbelief that the accused may – I say the accused, but I remind myself and you that he did not give evidence – but such disbelief that his case may well assist you in deciding whether you accept more readily the conclusions which are otherwise available from the evidence led by the Crown." 4 That is an erroneous direction. The Crown did not seek to submit otherwise. It is erroneous in at least two respects. First, that it directed the jury that they were able to use the evidence of the defence witnesses, which they did not believe, to bolster the Crown case. It also indicated to the jury that they were entitled to use the lies of the alibi witnesses, should they disbelieve those alibi witnesses, as indicative of the appellant's guilt. 5 The Crown submitted, however, that this would be an appropriate case in which to invoke the proviso to s 6(1) of the Criminal Appeal Act 1912 (NSW) on the basis that no substantial miscarriage of justice has occurred. 6 The principles which govern the application of the proviso are well settled. Essentially there are two considerations. First, the proviso will not be applied where the convicted person has "lost a real chance of acquittal": R v Storey (1978) 140 CLR 364 at 376. 7 Secondly, the question whether a reasonable jury would inevitably have convicted does not arise where the error is so fundamental such that "the proceedings have so far miscarried as barely to be a trial at all": Wilde at 372-373. See also R v Bozzola [2001] NSWCCA 8; Glennon v R (1994) 68 ALJR 209. 8 I do not agree. The later directions given by the trial judge did not expunge the effect of the erroneous direction that he had given. In any event, I do not believe the later directions attempted to do so. Those directions were directed solely to the onus issue and whilst correct, did not take away the effect of the earlier direction that the disbelief of the defence witnesses, if that is the way the jury chose to go, added weight to the Crown case. 9 I consider, therefore, there was a miscarriage of justice. For that reason, I have not found it necessary to have the appellant's counsel elaborate on the further grounds of appeal, and likewise, did not have the Crown respond to them. I have read written submissions in respect of them. Those grounds reveal that there were other errors. I consider, however, that the appeal on ground 2 is determinative of the appeal. As I have said, I consider there was a miscarriage of justice, so that the proviso does not apply. 10 Accordingly, I propose the following orders: (i) Appeals upheld (ii) Convictions quashed; (iii) Direct there be a new trial on all grounds. 11 SPERLING J: I agree with Beazley JA. 12 CARRUTHERS AJ: I also agree. 13 BEAZLEY JA: The orders of the Court will be as I have proposed. Addendum to Judgment : 20 December 2002 As a consequence of the orders made herein on 28 October 2002, the Court further orders pursuant to s 59 of the Crimes (Sentencing Procedure) Act 1999 (NSW) that the sentence imposed on 15 October 2001 by the Sydney District Court upon the appellant for offences of act with intent to pervert the course of justice be varied to a fixed term of imprisonment for five years to commence on 5 June 1999 and to expire on 4 June 2004. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.