Humphries v R [2015] NSWCCA 319

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Humphries v R [2015] NSWCCA 319 Hearing dates: 19 November 2015 Date of orders: 18 December 2015 Decision date: 18 December 2015 Before: Gleeson JA at [1] Bellew J at [2] RS Hulme AJ at [120] Decision: Leave to appeal granted. Appeal dismissed. Catchwords: CRIMINAL LAW – Appeal against conviction – Applicant convicted of break and enter – Crown case of joint criminal enterprise between the applicant and his brother – Where Crown case circumstantial - Whether verdict unreasonable –– Necessity to view Crown case as a whole – Open to jury to find offence established beyond reasonable doubt

CRIMINAL LAW – Appeal against conviction – Where Crown case circumstantial – Whether part of the evidence relied upon by the Crown constituted evidence of an essential intermediate fact – Whether trial judge erred in failing to the direct the jury accordingly – Where remaining evidence relied upon by the Crown did not reveal an empty shell – No error established

CRIMINAL LAW – Appeal against conviction – Practice and procedure – Joint trial of two accused on charges including break and enter – Crown case of joint criminal enterprise – Where both accused initially pleaded not guilty and the trial proceeded – Where one accused pleaded guilty following the close of the Crown case – Where that plea of guilty was taken before the jury in the presence of the co-accused – Where the co-accused maintained his plea of not guilty – Where application made on behalf of the co-accused to discharge the jury – Where trial judge refused that application and directed the jury that the plea of guilty was not be taken into account in determining whether the Crown had proved its cased against the co-accused – Whether it was appropriate for the plea of guilty to be entered before the jury - Whether a miscarriage of justice arose as a consequence – Necessity for a trial judge to give appropriate directions to the jury in such circumstances – Where such directions were given – Although preferable course may have been to have the plea taken in the absence of the jury no miscarriage of justice established – Appeal dismissed Legislation Cited: Criminal Appeal Act 1912 (NSW) Criminal Procedure Act 1986 (NSW) Cases Cited: Andelman v R [2013] VSCA 25; (2013) 38 VR 659 Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82 Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521 Dunn v R [2015] WASCA 126 Lee v R [2013] NSWCCA 68; (2013) 232 A Crim R 337 Lodhi v R [2007] NSWCCA 360; (2007) 179 A Crim R 470 M v The Queen [1994] HCA 63; (1994) 181 CLR 487 Mackenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348 MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 R v Burnett (1994) 76 A Crim R 148 R v Coates and Murphy [2002] NSWCCA 481; (2002) 136 A Crim R 252 R v Cowell (1987) 24 Crim R 47 R v Fountain; R v Tootell [2001] VSCA 200; (2001) 124 A Crim R 100 R v Glennon [1992] HCA 16; (1992) 173 CLR 592 R v Golding & Edwards [2008] SASC 68; (2008) 100 SASR 216 R v Merritt [1999] NSWCCA 29 R v Moore (1956) 40 Cr App R 50 R v Zaiter [2004] NSWCCA 35 Rasic v R; Vella v R [2009] NSWCCA 202 Romeo & ors v R (1987) 25 A Crim R 80 Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573 SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 Swain v R [2015] NSWCCA 176 The Queen v Hillier [2007] HCA 13; (2007) 228 CLR 618 Wood v R [2012] NSWCCA 21; (2012) 84 NSWLR 581 Category: Principal judgment Parties: Arthur John Humphries - Applicant Regina - Respondent Representation: Counsel: W Hunt and T Ramrakha - Applicant H Baker – Respondent