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[2026] NSWCCA 96
Court of Criminal Appeal (NSW)
2026-07-03
N Adams CJ at CL at [1]; Cavanagh J at [152]; McNaughton J at [153].
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Elkerdi v R [2026] NSWCCA 96
Hearing dates: 15 April 2026
Date of orders: 3 July 2026
Decision date: 03 July 2026
Before: N Adams CJ at CL at [1];
Cavanagh J at [152];
McNaughton J at [153].
Decision: (1) Grant leave to appeal.
(2) Allow the appeal.
(3) Quash the applicant’s conviction.
(4) Order a new trial of the applicant.
(5) Stand the matter over to the District Court Arraignment List on 7 July 2026 at 10:00am.
Catchwords: CRIME — appeals — appeal against conviction —summing up of trial judge — whether summing up unbalanced and unfair — where applicant relied on co-accused’s evidence that he was dropped off prior to the offending — where trial judge expressed a number of views in the course of the summing up which were critical of the co-accused’s evidence — where trial judge made comments on evidence that went beyond arguments advanced by the parties — summing up amounted to an exercise in persuading the jury of the applicant’s guilt — appeal allowed and new trial ordered CRIME — appeals — appeal against conviction — summing up of trial judge — Liberato direction — whether Liberato direction as to co-accused had to be “calibrated” to the applicant’s case — where trial judge gave all three limbs of the Liberato direction about co-accused’s evidence and immediately directed the jury that the applicant relied on this evidence — where defence counsel did not seek a re-direction — no miscarriage of justice
Original judgment source is linked above.
Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW), s 108
Crimes Act 1900 (NSW), s 93GA(1)
Criminal Appeal Act 1912 (NSW), ss 5(1), 6
Criminal Procedure Act 1986 (NSW), s 160(2)
Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15
Cases Cited: Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288
BQ v The King (2024) 279 CLR 124; [2024] HCA 29
Brawn v The King [2025] HCA 20; 99 ALJR 872
De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48
Ellingford v R [2026] NSWCCA 24
Engstrom v R [2026] NSWCCA 30
Evans v R; Evans v R [2024] NSWCCA 245
Germakian v R (2007) 70 NSWLR 467; [2007] NSWCCA 373
Greenhalgh v R [2017] NSWCCA 94
Haile v R (2022) 109 NSWLR 288; [2022] NSWCCA 71
Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66
Mahmood v Western Australia (2008) 232 CLR 397; [2008] HCA 1
McKell v The Queen (2019) 264 CLR 307; [2019] HCA 5
Mulholland v R (2018) 100 NSWLR 477; [2018] NSWCCA 299
Park v R [2023] NSWCCA 71
Sanchez v R [2009] NSWCCA 171; 196 A Crim R 472
Category: Principal judgment
Parties: Meyez Elkerdi (Applicant)
The Crown (Respondent)
Representation: Counsel:
Mr A Chhabra / Mr P McManus (Applicant)
Ms M Millward (Respondent)
Solicitors:
Toomey Defence Lawyers (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)
File Number(s): 2023/00177160
Publication restriction: Nil.
[This headnote is not to be read as part of the judgment]
The applicant, Meyez Elkerdi, and his co-accused James Scicluna stood trial in the District Court before a jury and Judge King SC. On 17 March 2025, they were found guilty of one count of firing a firearm at a dwelling house with reckless disregard for the safety of another person contrary to s 93GA(1) of the Crimes Act 1900 (NSW).
The Crown case was that on the evening of 27 May 2023, the applicant and Mr Scicluna drove to South Coogee and discharged a firearm at unit 150/25 Gregory Street. The applicant’s case was that he had been dropped off by Mr Scicluna at his grandmother’s house in South Coogee before the shooting occurred. The applicant did not give evidence and instead relied on Mr Scicluna’s account that he dropped the applicant off prior to the shooting and then picked up an unidentified individual who was the actual shooter and who caused Mr Scicluna to commit further offences under duress. The issue at trial was thus whether Mr Scicluna’s account was to be believed and whether there did in fact exist this unidentified shooter.
In summing up, the trial judge referred to the unidentified individual as “Mr No Name” and used expressions like “fortuitously” and “why on earth” when addressing Mr Scicluna’s evidence. The trial judge also advanced arguments not put by the Crown about whether the shooting was targeted, whether threats made by the unidentified individual were sufficient to constitute duress and whether defence criticisms of the police investigation were sound. On appeal to this Court, the applicant contended that this summing up was unbalanced, unfair and caused a miscarriage of justice (ground 1).
In respect of Mr Scicluna’s evidence, the trial judge directed the jury in accordance with all three limbs of the Liberato direction. The trial judge immediately followed this direction by reminding the jury that the applicant relied on the evidence of Mr Scicluna. Defence counsel did not raise an objection nor seek a redirection in relation to this Liberato direction at trial. The applicant’s argument on appeal was that the trial judge should have given the second limb of the Liberato direction again specifically in relation to the applicant (ground 2).
The Court (N Adams CJ at CL, Cavanagh and McNaughton JJ agreeing) held, granting leave to appeal and allowing the appeal:
As to ground 1:
McKell v The Queen (2019) 264 CLR 307; [2019] HCA 5; Haile v R (2022) 109 NSWLR 288; [2022] NSWCCA 71; Mulholland v R (2018) 100 NSWLR 477; [2018] NSWCCA 299, considered.
As to ground 2:
Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66; De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48; Engstrom v R [2026] NSWCCA 30; Evans v R; Evans v R [2024] NSWCCA 245; Park v R [2023] NSWCCA 71, considered.
N ADAMS CJ at CL: The applicant, Meyez Elkerdi, and co-accused James Scicluna stood trial in the District Court before a jury and Judge King SC between 5 March and 17 March 2025. The joint indictment alleged that on 27 May 2023 at South Coogee, the applicant and Mr Scicluna fired a firearm at a dwelling house with reckless disregard for the safety of another person contrary to s 93GA(1) of the Crimes Act 1900 (NSW). The maximum penalty is 14 years’ imprisonment, and the standard non-parole period is 5 years.
Mr Scicluna was charged with two further offences related to the possession of the firearm used in the shooting and possession of ammunition in contravention of a firearms prohibition order. The applicant and Mr Scicluna entered pleas of not guilty to all counts.
On Monday 17 March 2025, the jury returned verdicts of guilty on all counts for the applicant and Mr Scicluna. On 12 September 2025, the applicant was sentenced to a term of 8 years’ imprisonment with a non-parole period of 5 years, commencing on 27 February 2025.
The Crown case was that on the evening of Saturday 27 May 2023, the applicant and Mr Scicluna, as parties to a joint criminal enterprise, drove to South Coogee and discharged the firearm, an SKS rifle, at unit 150/25 Gregory Street. The applicant’s case was that he had been dropped off by Mr Scicluna at his “Nan’s” house at 64/6 Wauhope Crescent, South Coogee, before the shooting occurred. The applicant did not give evidence and instead relied on Mr Scicluna’s account that he dropped the applicant off prior to the shooting and then picked up an unidentified individual who was the actual shooter and who caused Mr Scicluna to commit the further two possession offences under duress.
By amended notice of appeal filed on 31 March 2026, the applicant appeals against his conviction. The following two grounds of appeal are relied on:
Ground 1: His Honour’s summing up was unbalanced, unfair and caused a miscarriage of justice.
Ground 2: His Honour erred by failing to direct the jury, in relation to the evidence of Mr Scicluna that he dropped the applicant home prior to the shooting, that even if they did not positively accept that evidence, they were required to acquit the applicant if they considered it might be true.
On the Crown case, a series of shots were fired at unit 150/25 Gregory Street, South Coogee at or about 7:45pm on 27 May 2023. The occupier of the unit was Jay Turnbull. He made a statement to police the night after the shooting but did not give evidence at the trial. He was home at the time and was awoken by a loud bang. He went back to sleep shortly thereafter and did not appreciate what had happened until the following day.
Neighbours living on Gregory Street who heard the shooting, Lachlan Felato and Elijah Shepherd, gave evidence at trial. They described the number and sequence of gunshots heard. CCTV also captured the sound of seven loud gunshots delivered in quick succession. Mr Felato called triple-0 at 8:03pm.
It was accepted at trial that Mr Scicluna owned a black Holden Colorado utility vehicle (“ute”). On 27 May 2023 at 7:07pm, it was photographed as it passed a speed camera on the M5 Motorway at Arncliffe. The camera captured Mr Scicluna driving the vehicle and the applicant in the front passenger seat.
CCTV footage also captured the movements of Mr Scicluna’s ute in South Coogee that evening. At 7:32pm, it passed 6 Fowler Street, South Coogee. At 7:36pm, it was captured commencing a U-turn in the intersection of Macleay Street and Fowler Crescent before turning right into Fowler Cresent in the direction of Fowler Reserve. The vehicle was then parked across the road from the reserve. About two minutes later, two men were captured getting out of the driver’s seat and front passenger seat of the vehicle. They were wearing black hooded jumpers (with the hoods pulled up over their heads), light-coloured pants and light-coloured shoes. The two men walked to the rear of the park before turning around and returning to the vehicle. On the Crown case, the two men returned to the vehicle upon realising that the park did not serve as a thoroughfare between Fowler Crescent and Gregory Street. At 7:45pm, the vehicle turned right from Fowler Crescent onto Macleay Street before turning right into Gregory Street, travelling in the direction of the unit. At 7:55pm, the vehicle was captured driving past 38A Gregory Street away from the unit.
The crime scene examination was conducted the following day. Six fired cartridge cases were located in front of 25 Gregory Street. Six areas of impact damage were identified to the ground floor window of the unit and surrounding brickwork. There was further impact damage inside the unit.
The Crown adduced evidence as to the location of cell towers to which the phones of the applicant and Mr Scicluna connected at relevant times. This evidence showed that they travelled from the Campbelltown area to the eastern suburbs of Sydney leaving at 6:30pm. Data obtained for the period after the shooting demonstrated that both phones then returned to the Campbelltown area, connecting to the same cell towers. At the time the shooting is alleged to have occurred and immediately following, neither of the phones connected to any cell tower, consistent with the phones both having been switched off.
The Crown also relied on extensive phone contact between the applicant and Mr Scicluna; between 24 to 31 May 2023, there were 71 calls or text messages between the two men. This was presented as evidence of the planning and carrying-out of the shooting.
Mr Scicluna was arrested at premises in Farnsworth Street on 2 June 2023. During a search of the premises, police located the SKS rifle and a bag containing two loaded magazines and a large quantity of ammunition. These premises were leased by Sophie Clements, a friend of Mr Scicluna, who denied knowledge of the items located and seized by police.
DNA testing identified Mr Scicluna’s DNA on the trigger and inside trigger guard of the rifle and on the bag containing the rifle. The applicant’s DNA was also located on the front passenger door handle of the ute. DNA consistent with having originated from other identified individuals was located on the front driver internal door handle of the ute (Adam Tutton) and on the Rebel Sport bag in which the ammunition was found (Mathew Ryan McDonald). Fingerprints were located on the driver side door (Todd Lee) and the passenger side door and cup holder (Christien Callaghan).
On 1 June 2023, police conducted a search of premises at 64/6 Wauhope Crescent, South Coogee. During the search, police seized (but did not later test) a number of hoodies. These hoodies were not described in evidence and it is unclear whether they were consistent in appearance with the hoodies worn by the two men seen to walk through Fowler Reserve. They were not the subject of gunshot residue (“GSR”) testing. The officer-in-charge gave evidence that CCTV footage was not obtained from the vicinity of Wauhope Crescent from the evening of 27 May 2023. He noted that police did not observe any visible cameras from which footage may have been obtained but accepted that he could not say for certain that there were no cameras that were not visible from the street.
The applicant was arrested at the Wauhope Crescent premises the following day. He declined to be interviewed by police.
As noted above, the applicant did not give evidence at trial nor call any witnesses. Instead, he relied on the evidence given by co-accused Mr Scicluna.
Mr Scicluna participated in an electronically recorded interview with police on 2 June 2023 which was tendered as evidence at trial. In that interview, Mr Scicluna told police that he did not remember using the ute himself that day or lending it to anyone. He said that he had never seen the SKS rifle before. He also said that he had last seen the applicant “a long time ago”.
In examination-in-chief, Mr Scicluna admitted to having driven his black ute to the Coogee area on the evening of 27 May 2023. He gave evidence that he did so to drop the applicant home after the two had been at the Narellan Hotel in Campbelltown. Mr Scicluna dropped the applicant at his “Nan’s” house “somewhere between 7 and 7:30pm”.
After dropping the applicant off, Mr Scicluna messaged via Snapchat a friend who he knew was in the area. The friend provided him with an address, which he could not recall at the time of the trial. Mr Scicluna drove to the address. He later estimated the drive as having taken about five minutes. When he pulled up out the front of the address, Mr Scicluna messaged his friend to let him know he was there. Mr Scicluna was “mucking around on [his] phone” as his friend approached the car. The friend put a couple of bags on the back seat before getting in the car.
Mr Scicluna and his friend discussed having a few drinks and a “slap on the pokies”. They discussed possible venues before the friend said that he needed to “catch up with someone first”. Mr Scicluna agreed and the friend provided directions which Mr Scicluna followed. After “about a five-minute drive”, the friend directed Mr Scicluna to pull up at a park, telling Mr Scicluna that he would take a shortcut through the park. His friend invited him to “come for a walk”. Mr Scicluna agreed. They walked through the park before realising that it was not a shortcut, whereupon they returned to Mr Scicluna’s ute. The friend then provided more directions to “probably … another two or three streets away” before asking Mr Scicluna to pull over.
After Mr Scicluna had pulled over as directed, the friend went to the back seat and grabbed one of the bags that he had put there. Mr Scicluna was “not really watching” but was instead watching TikTok videos on his phone. “All of a sudden”, Mr Scicluna heard some “really loud bangs”. His friend got back into the front passenger seat of the car and Mr Scicluna noticed, for the first time, a “big massive rifle”.
Mr Scicluna’s friend instructed him to “fucking drive”. When Mr Scicluna asked “what the hell [was] going on”, his friend “backhanded” him across the side of his face and told him to stop asking questions. Mr Scicluna was scared so he drove. Later in the drive, Mr Scicluna’s friend “backhanded” him again and told him to shut his mouth and take him back to Mr Scicluna’s place.
Mr Scicluna was not prepared to take his friend, who he described as a “lunatic”, to his family home where he lived with his wife and two children, so he drove instead to the home of Ms Clements. She was not home, so he let himself in with a spare key which he recovered from a statue of an elephant. Once they were inside the Farnsworth Street premises, Mr Scicluna, who said he had been smacked three times on the side of the face, tried to ask questions but was repeatedly told to shut his mouth.
After unsuccessfully attempting to dissuade his friend from his plan to leave the firearm with him, Mr Scicluna went to his ute and retrieved the firearm as well as an empty black bag and another bag on the back seat. He took them inside. The friend instructed him to put the rifle into the black bag. He then hid them in a cupboard above the linen press. He was, by this stage, too scared to keep asking questions because the friend had continued to yell at him. About ten to fifteen minutes later, Mr Scicluna’s friend left the Farnsworth Street premises.
Mr Scicluna did not call the police because he was scared. He declined to name his friend because he believed that, if he did so, he would be in “a lot of danger”.
Mr Scicluna admitted that the account he had given to police was false in a number of respects, including his denial that he was in the vicinity of South Coogee on 27 May 2023 and his claim that he had last seen the applicant “a long time ago”. He said he gave a false version in each respect because he was scared of his unnamed friend.
In cross-examination, Mr Scicluna could not explain why his DNA was on the trigger guard of the SKS rifle. As to whether he had handled the trigger guard when he put the item in the bag, Mr Scicluna said, “I just grabbed it. I don’t know … if my hand brushed up against it … Maybe when I was inside and I was putting it back in the black bag, maybe that’s where I touched it. I don’t know”. Mr Scicluna gave evidence that his unnamed friend removed the magazine from the SKS rifle and passed it to him.
Mr Scicluna gave evidence that calls at 10:59pm and 11pm from his phone to the applicant’s phone were calls that he made while looking for the applicant’s phone which had been unintentionally left in his black ute. This was relied on as an explanation for why the applicant’s phone travelled back to Campbelltown despite Mr Scicluna’s account that he dropped the applicant off in South Coogee.
HIS HONOUR: All right, Mr Scicluna, your counsel asked you the name of that person and you declined to give him a response because of your asserted fears. The Crown has been asking you a number of questions about him or his description of him and you have shown some reluctance to provide that information, as I understand it, for the same reason as expressed to your counsel - that you have fears for your safety, your family’s safety, or other matters.
WITNESS: Yes, your Honour.
HIS HONOUR: I can make a non-publication order in relation to any evidence you give that identifies that person or that may lead to his identification. That means that everyone in this courtroom who hears you say his name or anything from which he might be identified would be prohibited from publishing that evidence anywhere. It wouldn’t get to the press. You can rest assured that members of the jury always follow judge’s directions.
So the jury wouldn’t go out there in public and start saying who this person was and neither would your counsel or instructing solicitor or Mr Elkerdi’s because that would be bound by the non-publication order and you can rest assured that lawyers take those matters very seriously. None of the court staff would let anyone know who the person was or any better description of him than you have given so far. So you should take that into account in answering these questions for the Crown, that is, that I can make a non-publication order which can be reasonably expected to protect you from any revenge being sought against you by that person. Do you understand that?
ACCUSED SCICLUNA: Yeah, I understand that, your Honour. But I don’t trust it, sorry.
In its closing address, the Crown advanced “four strands” of evidence against the applicant:
The CCTV and speed camera photograph placing him in the vehicle with Mr Scicluna;
DNA from the passenger door handle of Mr Scicluna’s ute;
Cell tower evidence consistent with the applicant’s phone travelling from Campbelltown to the South Coogee area and back at the relevant times; and
The call charge records showing 71 communications between the two accused in the days before and after the shooting.
As to Mr Scicluna’s version of events, the Crown first pointed to inconsistencies with his original version given to police and his admissions that he had lied in this interview. While the applicant claimed that he was terrified while giving the interview with police, the Crown suggested that this was inconsistent with his demeanour during the interview.
Importantly, the Crown submitted that Mr Scicluna’s account of how the shooting occurred with the “nameless friend” was not credible. The Crown Prosecutor said as follows:
Mr Scicluna’s description of what happened simply does not accord with common sense. Why would the nameless friend have chosen Mr Scicluna of all people as his unwilling transportation option? From Mr Scicluna’s own evidence, they were not close friends. They’d seen each other once or twice in the past year. The last time they had seen each other was a few months ago when they went for a drink at the Bondi Hotel. That was the kind of relationship they had. Why would the nameless friend possibly have thought, “This is the man I want with me when I shoot up a building”?
…
Another question is why Mr Scicluna was so unwilling to identify the nameless friend. This court has the power to make an order that forbids anyone disclosing what Mr Scicluna said. Mr Scicluna was made aware of this order. He said he was still too scared to reveal details about the nameless friend. One might possibly be able to understand his reluctance to name the person, but he was unwilling to give any details apart from the most generic ones when he was pressed. My submission is that the reason Mr Scicluna did not want to provide a description of the nameless friend is the same as the reason for why this story is so lacking in credibility. It’s because it was made up. It was made up to explain the evidence against him, the evidence I took you through which is, in my submission, very strong; the nameless friend does not exist. Mr Scicluna was the person who formulated the plan to shoot into 25 Gregory Street with Mr Elkerdi.
The defence appeared to suggest to the officer in charge during cross-examination that there were deficiencies with the police investigation including suggesting they should have followed up on particular leads. As with any work, there’s always more that can be done. But the reality is that this was a thorough investigation. That is apparent from the evidence that has been presented to you.
Trial counsel for Mr Scicluna focused on the plausibility of his version of events and denials, and deficiencies in the police investigation. This included, inter alia, failures to investigate the individuals whose DNA or fingerprints were found in the ute and on the bag in which the ammunition was found and to obtain CCTV from Wauhope Crescent (where Mr Scicluna claimed to have dropped the applicant off).
As to Mr Scicluna’s fear of the unidentified man and his Honour’s offer to make a non-publication order, trial counsel observed:
… [T]he trial judge made an offer – he may have done that - that he could direct people in the courtroom, including presumably, the school girls who streamed down about that time, to not tell anyone the name of the person. He could make that direction. No one in this courtroom is to tell anyone outside of this courtroom the name of the person Mr Scicluna names. He declined his Honour’s offer. That is how scared and concerned he still is about this fellow.
Trial counsel for the applicant addressed the jury for approximately one hour.
The applicant’s primary submission concerned the decisive significance of Mr Scicluna’s account about dropping off the applicant:
If you believe it’s a reasonable possibility that Mr Elkerdi was dropped off at his place, or what’s been called his nan’s place, it’s over. It is over.
… [Y]ou’ll recall that Radzio accepted that when they arrested or did a search on Mr Elkerdi’s address, they seized a number of hoodies.
Now, I’m not suggesting that hoodies means that you’re engaged in a criminal act. It may be that everybody in this courtroom, perhaps except the judge, has a hoodie, has a number of hoodies. But nobody told him he told you that you can’t do GSR testing on a hoodie. If that’s their case that Mr Elkerdi’s in the park on the CCTV, and if it’s their case that there’s a hoodie, and if it’s the case that they seize hoodies on the 1st or 2 June, wouldn’t you think a detective with an enquiring mind interested in establishing the facts would make some enquiry or investigation in relation to gunshot residue? Wouldn’t you think that would be a natural investigative step?
Trial counsel also levelled criticism at the investigator’s failure to disclose the applicant and Mr Scicluna’s banking records, which it emerged from investigative notes had been sought and obtained from their banking institutions.
Additional submissions advanced for the applicant included:
The objective corroboration in cell tower evidence showing Mr Scicluna’s phone using data between 7.25pm and 7.42pm consistent with his account of being on his phone after dropping off the applicant;
The inability to identify the applicant from the CCTV footage at the scene;
The failure of the police to obtain CCTV from Wauhope Crescent despite attending those premises on 1 and 2 June 2023;
The absence of disclosure to the applicant of the surveillance device warrant and its product; and
The failure to investigate any of the other DNA and fingerprint matches on the exhibits.
The trial judge commenced his summing up on 13 March 2025 and concluded it on 14 March 2025.
Given that both grounds 1 and 2 concern complaints about aspects of the summing up, I propose to extract both the passages impugned by the applicant and other passages in the summing up relied upon by the Crown for context with a brief description under each passage as to its relevance to this appeal.
Now, ladies and gentlemen, it sometimes occurs, and not infrequently, that juries send out a question which asks the judge to explain what “beyond reasonable doubt” means. Let me tell you in advance that I cannot explain it other than to say that they are three ordinary words in the English language and they have their entirely ordinary meaning. It is a matter for you to interpret. The moment a judge endeavours to explain those three words it ends up in a successful appeal because the law at the moment is that judges should not try and explain those words. (Emphasis added.)
Similarly, when discussing the written directions, his Honour stated that he has to take the jury through them because otherwise “it becomes an appealable point which would set the trial at nil”.
One of the complaints made by the applicant under ground 1 is that these comments by his Honour about how misdirections can result in successful appeals impliedly and improperly suggested to the jury that the trial would result in a conviction which would be appealed.
The trial judge briefly summarised Mr Scicluna’s account of that evening and then provided a Liberato direction as follows (Liberato v The Queen (1985) 159 CLR 507 at 515; [1985] HCA 66 (“Liberato”)):
It follows from this, first, if you believe Mr Scicluna’s evidence, obviously you must acquit. Second, if you find difficulty in accepting the accused’s evidence but think it might be true, then you must acquit. Third, if you do not believe Mr Scicluna’s evidence, then you should put it to one side. Nevertheless, the question will remain, “Has the Crown upon the basis of evidence that you do accept proved the accused’s guilt beyond reasonable doubt?”
Now, of course, as I have said to you, Mr Elkerdi relies on the evidence of Mr Scicluna as to his having been dropped off prior to the man with no name getting in the car with the gun and bag of ammunition, and then that person carrying out the offence that constitutes Count 1. (Emphasis added.)
The complaint made under ground 2 concerns this direction. The applicant contends that, despite the fact that the applicant did not give evidence, the trial judge erred in not “calibrating” the Liberato direction to direct the jury that they must also acquit the applicant if they had difficulty in accepting Mr Scicluna’s evidence about Mr Scicluna dropping the applicant off before the shooting but thought it might be true. It was accepted on behalf of the applicant that no application for a redirection was made about the Liberato direction at trial and thus r 4.15 of the Supreme Court (Criminal Appeal) Rules applies to ground 2.
The reference by the trial judge to “the man with no name” accords generally with how the Crown Prosecutor and defence counsel referred to the person identified by Mr Scicluna in his evidence as the shooter.
His Honour then explained the need for unanimity before adjourning for the day.
His Honour recommenced his summing up the following day by explaining the right to silence, the elements of the offence, joint criminal enterprise and inferences. When explaining the elements of count 2 (the firearms offence which only Mr Scicluna stood trial for), his Honour twice referred to the unnamed witness as “Mr No Name” for the first time.
The trial judge continued to address on circumstantial evidence and the Crown case. The only complaints made with the summing up until that stage have already been detailed above. His Honour’s summing up then took a particular tone from about page 30.
First, his Honour continued to refer to Mr Scicluna’s unnamed friend as “Mr No Name”, ultimately describing him in this way on 34 occasions.
Secondly, his Honour expressed some scepticism when referring to Mr Scicluna’s evidence. For example, when summarising Mr Scicluna’s case, his Honour stated the following about his duress claim:
This was apparently a terrifying situation to Mr Scicluna to be involved in, where he was dealing with his friend who he had on the spur of the moment, or relatively on the spur of the moment, decided to meet up with that night. … But on his case, when he and Mr Elkerdi attended the local area they in fact drove to Mr Elkerdi’s (apparently) Nan’s house, and Mr Elkerdi departed from the car before there was any firing, that he then contacted his friend who gave him an address that he attended, he dithered around the motor vehicle for some time before his friend came out carrying two bags with him … But he was then induced by Mr No Name, who he had gone to on the basis that they would meet up and perhaps go and have a drink somewhere and play the pokies, to drive around the area as he sought to find somewhere.
… and he was invited to join Mr No Name for a stroll through the park, which he did. They went through the park and realised there was no shortcut.
So, fortuitously for Mr No Name, Mr Scicluna had decided to drive Mr Elkerdi home from Campbelltown to South Coogee and, fortuitously, that just happened to coincide with *Mr No Name’*s need to carry out some act of violence or intimidation in respect of unit 150.
… Then when they got there [to the Farnsworth Street premises], still subject to duress and fear, remembering of course there was nothing that he said in his evidence about his friend who he had picked up and taken on this journey had said about shooting him, or killing him, or shooting his family, or doing anything of that nature. He had only threatened him not to ask questions, and to shut up and not be a girl, and backhanded him, or slapped him on I think a total of three occasions, and maybe there as a threat of doing it on another occasion.
This is asserted in the defence case as being such a significant duress as to overbear Mr Scicluna’s ability to resist; he being the subject of a prohibition order then put himself in the position of knowingly being in contradiction of that order by at least, on his version getting the gun out of the car and the bag of bullets out of the car and taking them in.
(Emphasis added.)
Was the accused, caused by the alleged threats to “not be a girl”, to shut up, to drive away, and being slapped, to act as he did because the accused genuinely believed that if he did not act in that way he or a member of his family would be killed or seriously injured, and for that purpose, I suggest to you that you read his evidence carefully about what he said the threats were, whether there was any threat to his family or to him or that was all in his own mind.
…Other than what had happened in the circumstances in which they were made, the accused did not say anything about having any other reason to believe that anything known about Mr No Name which would have affected his reasonable reaction to them.
… Could the accused have rendered the threat ineffective?
One example of that is of course by going to police. Another example would be simply stopping the car and getting out of it, and walking away, or having heard the shots, driving away.
Or after the rifle and ammunition on his version had been placed in the premises of Ms Clements, then contacting the police and disclosing the fact.
I said before that we would prefer that people did not commit crimes even in response to threats. If the accused had a choice between giving into the threat and rendering it ineffective, then the law says the person should take the second option. Even when a person is faced with threats which they believe will be carried out unless they commit a crime they are not acting under duress if they could have avoided the threats by doing something else such as reporting the matter to police.
None of these matters had been raised by the Crown in his closing address. The Crown case at trial was that the unidentified friend did not exist thus the issue of duress did not arise.
His Honour then referred to criticisms made during the defence closing address about aspects of the police investigation, a topic he would later return to. Again, the Crown had not raised any arguments about those criticisms, limiting the position to the extract above at [36]. The trial judge observed that, “[t]his is not a trial about what might have been done by the police”.
His Honour then proceeded to raise questions about the lack of evidence of motive advanced in the Crown case. His Honour observed this:
I said to you before that it appeared to be relatively unarranged on Mr Scicluna’s version; that this happened to be a convenient time for Mr No Name to come out with his bag of bullets and rifle and be transported around the local area until they found some position where he could then leave the vehicle and fire on the unit, 150. There is absolutely no evidence in this case as to why they would have done so, either of them. Was it simply a random targeting because someone wanted to let off a rifle and could not think of anywhere better to do it than point it at 150 in Clark Street [sic]. (Emphasis added.)
From all of those markings, it appears that that there were in fact a total of eight cartridges discharged, sending bullets either striking the brickwork or through the window, and perhaps hitting other things inside such as the doorway and the cupboard above the fridge, et cetera.
This was, you might think, clearly intended, at least in the sense of not knowing who was in the unit at the time, to act as a warning to intimidate the person who was inside, unless it was a totally random choice of premises. You might ask yourself was it a totally random choice of premises?
What do you know about the occupant, Mr Turnbull, who has not given evidence? All you have heard about him is that when spoken to by the police, he said he had been asleep and had not heard any gun discharge and had only later discovered damage to the premises which, from my memory of what was said, was that he thought someone had hit his window with a ball hammer or something of that nature.
Was he someone who you might expect that the Crown would have called in this case? You would have always been assisted, I would suggest to you, by some information delivered from him giving evidence as to why, if there was any cause or reason that he might think that anyone would wish to harm him or terrorise him, but we have not heard from him, and the only explanation that we have is that he did not hear it, so he just thought it was all something caused by a ball hammer or something or that nature.
Is there any indication in the material before you that he perhaps thought he might be the subject of an attack? Well, can I suggest this to you? And it has not been raised by anyone. I suggest this is entirely off my own bat, not counsel’s or the Crown’s, but when you look at the photos of the premises and where the bullets penetrated the window, you will find at - I think it is page 28. I have a little difficulty seeing the red on the black background but on p 28, the marker showing the entry point of one of the bullets and next to it the window on the inside has what appears to be a panel of cardboard and when you look at photograph 36, which shows looking across the desk or dining table or whatever that might be and through the blinds you can see that there appear to be a number of panels of cardboard placed on the inside of the windows just like the one I took you to, and again in photograph 37, you will see beyond the blinds the cardboard panels.
In photograph 38, there appears to be a plastic tray or something in the lower part of the photograph below the entry points and some strips of masking tape which you might think perhaps had related to holding something like a panel of cardboard over the window. We do not know whether there had been a panel over that window entirely, or at least the lower part of it, because we have not heard from Mr Turnbull. Sorry, I should have said in respect of p 38, on the right hand side, you will see that he has actually given persons in the outside, in the street the benefit of being able to see some painting that he has apparently placed so that the back of it is showing to the internal room and the painting shows to the footpath outside through the window.
Now, you may think that perhaps Mr Turnbull was allergic to light, in which case he did not need to barricade the window with cardboard. All he needed to do was close the blinds. He may have been a very, very keen photographer who liked to use his premises to develop his film and photographs and needed to block off the light so that his film was not inadvertently exposed or the photographs can be developed properly. So, you may think that - a matter for you - the purpose of obscuring these windows with cardboard as he had done was to prevent people from the outside getting any decent observation of him on the inside in any particular position, and that he may have had some fear of some form of retribution or intimidation. But as I have said to you, you have got absolutely no evidence in this case from him.
You might infer what I have just said from what is shown in the photos, but the only person who could have told you anything about that was Mr Turnbull and as I said, this may have been an entirely random choice of premises or it may have been targeted but you will never know that because the Crown did not call Mr Turnbull, who I would suggest to you was a witness that you may well think could have provided you with information relevant to this matter, and there is no reason being given for why he has not been called.
(Emphasis added.)
This aspect of the summing up forms part of the complaint under ground 1 in that none of it had been raised by the parties and the trial judge referred to it as a “submission”.
His Honour then posed some questions about the ammunition found as follows:
Why on earth, you might ask yourself, did Mr No Name, when he was collected by Mr Scicluna on the basis that they might go to a pub and play the pokies – why on earth did he take with him a huge amount of ammunition? There are 17 boxes in the photographs of ammunition. Each box contains 20 rounds, with the exception, if you look closely at the photos, you will see one box is three short and one box is one short so that is 340 rounds, less four … (Emphasis added.)
Why on earth, if you are setting off to fire at 150 from somewhere else in Coogee, do you bother to take such a huge amount of ammunition? Was there a Mr No Name? Did Mr No Name join the vehicle after Mr Elkerdi had left, and did he take with him the gun? Did he take with him this huge amount of ammunition, which seems to have been entirely surplus to the purpose of firing no more than eight shots at the premises? Would not you, if you were someone like Mr No Name, who wanted to commit an offence like this, would not you ensure that you left all the ammunition somewhere entirely unrelated so that there could not be any chance of it being brought home to being yours or anything of that nature? Because that is, of course, what is suggested by the circumstances of Mr Scicluna saying that eventually when they reached Campbelltown and Ms Clements’ place, that he was directed to obtain the bag of ammunition and the rifle and hide them in the premises. (Emphasis added.)
The applicant relies on the above passages under the first ground of appeal as an example of the trial judge’s “persistent sarcastic treatment” of Mr Scicluna’s evidence and advancing a basis to reject the duress claim that was not advanced by the Crown.
When summarising the applicant’s case, the trial judge addressed its “absolute essence” as follows:
… [T]he essence of the case for Mr Elkerdi came down to this, I would suggest to you at p 332. “As you probably appreciate it or understood now from Mr Scicluna getting into the witness box, Mr Elkerdi’s case is “I got driven home.” What happens after he gets delivered home? He cannot give any lawyer instructions as to what happened after that because he is not there”. On his case that is entirely accurate. But it is a matter for you as to whether he was gone from the vehicle before there was any Mr No Name that attended with a rifle or bullets et cetera.
So, Mr Elkerdi’s case relies largely on the evidence of Mr Scicluna and whether you accept Mr Scicluna’s evidence as being truthful.
As I said; there was criticism by both counsel about various matters such as why was there no effort made to obtain CCTV footage from Wauchope Street; which was where, apparently; Mr Elkerdi was arrested and where his Nan’s premises were. Well; that may of course have, if it occurred, possibly shown the Colorado ute travelling there at a time before the shooting and even possibly recording Mr Elkerdi getting out of the car and going to the Wauchope premises before the time of the shooting. Of course; there is no evidence that on any suitably relevant time to obtaining the CCTV footage; police were aware that Mr Elkerdi was residing, whether temporarily or permanently, in Wauchope Crescent. That has only emerged as a result of the evidence of Mr Scicluna saying that he dropped off Mr Elkerdi at Wauchope Crescent. You may not be surprised in those circumstances as to why the Crown did not trawl through all the houses in Wauchope Crescent at some time in the past in order to see whether there was CCTV footage. And of course; it is now very late in the day to expect that anyone who lived in Wauchope Crescent would still have any relevant footage. That is, of course, a matter for you; however. (Emphasis added.)
Not only had the Crown not made this submission, contrary to his Honour’s suggestion that police had no idea that the applicant resided at his grandmother’s house, the evidence at trial was that the applicant was actually arrested at his grandmother’s home in South Coogee, so police must have known he lived there prior to Mr Scicluna giving evidence.
Then his Honour addressed the complaint about the DNA evidence:
Now there was also criticism by both counsel in relation to the failure to follow up the finding of various fingerprints and/or DNA. These in particular refer to such persons as Sophie Clements. She of course was the person who lived in the premises where the rifle and bullets were discovered. Of course, on Mr Scicluna’s case, she was not there at the time when he attended with Mr No Name. She was not there at the time when he attended with Mr No Name. She was not there at the time when the bullets and/or the firearm were placed in the linen cupboard, and there was no evidence from him that at any time that he informed her that they were in this upper part of her linen cupboard.
There is no evidence in the trial that indicates that, at any stage, she may have been aware of that material being there. There was a complaint made by Mr Rowe, in effect, that she had not been charged with any offence in relation to possession of the rifle. At least, if not the ammunition as well, but certainly the rifle he referred to. There is, however, evidence that on the day the police executed the search warrant, she was there.
You might wonder how his DNA got to be on the inside of a groove on the narrow part of each of those magazines without there, apparently, being any DNA of his found otherwise on the magazine. Sorry, I diverted myself a little from that.
But, of course, Mr Scicluna’s case is that he drove the car there and back, so where would the DNA of Mr Tutton being found on that particular door handle have taken you, in any event?
Again, I say to you, ladies and gentlemen, there is no evidence that Mr Callaghan was in the vehicle at any relevant time. He certainly was not one of those photographed in the vehicle on the way to South Coogee. And, again, I say, on Mr Scicluna’s evidence, there is no evidence that he was ever in the vehicle at any relevant time.
So, no doubt the police could have carried out further inquiries in relation to all of these persons. And you might think that they should have done so. But you judge this trial, and the case in respect of each of the accused, on the evidence that is before you, not on speculation about what evidence there might have been if other persons, of whom there was some indication of possible relevance, not being investigated.
I have made a reference to Mr Turnbull, not made by the Crown or by the parties: that you might have thought that he could legitimately have supplied you with some relevant information, and I have given you my reason for why I made that submission to you, particularly in relation to this otherwise being a motiveless crime, and his apparent desire to not be seen in his unit from the outside, and what inference you might draw from that.
I may be entirely wrong. And, at best, it would seem that if he gave evidence, all his evidence would go to would be some possible motive, and the answer to that in this trial is that there is no evidence of either of the accused having any motive to carry out what occurred or, for that matter, for Mr No Name to do so. There is simply a complete lacuna in that regard. (Emphasis added.)
Under ground 1, the applicant submits that this aspect of the summing up involved the trial judge advancing an independent case not put by the Crown about the targeted nature of the shooting.
His Honour then gave a direction about lies about which no complaint is made, although as part of that direction he made the following observations about the duress issue:
He says he lied on these occasions, particularly in relation to the record of interview, because he was absolutely terrified of Mr No Name, who told him not to be a girl and slapped or backhanded him on three occasions, and because he knew that at least when he was in the car with him he had a rifle between his legs and that might represent a threat to him or his family, in circumstances where Mr No Name apparently did not even know where he lived or where his family lived, as opposed to where they dropped the guns and the large load of ammunition off in order to hide it.
… As I have said, the defence case in relation to this issue is that he lied because he was in fear of Mr No Name and potential retribution against him by that person, a friend of some standing, and/or possible retribution against his family if he had not lied. So, he lied, in effect, in ways which assisted to protect Mr Elkerdi and himself, and this was because of the duress from Mr No Name.
There is no evidence before you as to whether a long rifle, an SKR, as here, will produce gunshot residue which is somehow going to accumulate on the person who fired the gun. Does it all come out the firing-end of the barrel and into the distance, or does it come back towards the firearm. Is a port on the rifle through which it may in part expel and end up on the hands or clothing of the person who fired it? If it does, may they transfer that gunpowder residue to something else, like the interior of a car if they get into or their clothes? All you have is evidence that there is such a thing as GSR, gunshot residue.
The circumstances in which it may be locatable after a weapon has been fired and from what weapons it may be located is an entire blank space in this trial. You may be critical of police officers, who seized apparently hoodies or garments from any premises occupied by either of the accused, as to whether they had them subjected to examination for gunshot residue. You have no information, though in fact the information you have about what they were wearing is not very possible to tell because all you have is the photograph of the two of them in the infrared camera - average speed camera - from which you cannot tell the colour of the garment or anything in particular. You might be able to see some details, but you cannot tell the colour of the garment. Did police in their search of their premises locate the garment that was worn at the time? Was there any particular utility in having it examined for gunshot residue in the absence of evidence about the circumstances in which gunshot residue may be attached to clothing or to persons or how it may be transferred from clothing or persons to other materials? So that is a matter for you, but there was clearly some criticism, particularly of the officer, in relation to why he had not done these things, and some apparent indication that from his notes there was some effort made to obtain swabs for GSR, et cetera, but no result.
There was also criticism of the prosecution, that is the police, I should say, for investigating Mr Elkerdi’s bank accounts and not disclosing that that had been done, or providing any relevant information. You might understand that when investigating a matter such as this the police might like to be able, as counsel have said, to find out where persons were at particular times. So if, for instance, Mr Elkerdi having hypothetically attended the location, had been present as part of a joint criminal enterprise to fire a gun, and rather than going home, which was not too far away, or going off to Campbelltown with Mr Scicluna, had gone with Mr Scicluna or with anyone else down to the Coogee Bay Hotel and used his credit card to pay for a couple of beers or to put some money through the pokies, then of course his banking records might show that he had attended there, and it would have been perhaps useful to the Crown to show that very shortly before or after this event, that is where he was from his financial records. But if nothing arises from their obtaining these records that has anything of relevance, you might understand there is little purpose in presenting that evidence to anyone. It does not take the matter any closer to proving a case beyond reasonable doubt or demonstrating that the Crown has not proved its case beyond reasonable doubt, it simply does not assist in any event. So, you can be critical of them for that, but where would it take you.
ROWE: Your Honour, my request is that your Honour discharge the jury in my respectful submission. That was not a summing-up, that was a closing address on behalf of the Crown. Your Honour went clearly into the evidence that was presented before the jury. Your Honour put submissions that were not put by either counsel. Put ...(not transcribable)... that were not put in cross-examination or examination-in-chief of witnesses, and it cannot be corrected by any redirections. So that’s the only course of action in my respectful submission that be taken. If your Honour is against me on that application, then I ask that your Honour read from the Bench Book at 7020 at paragraph commencing, “I am the Judge of the law” down to “I do not intend to do any such thing”. Thank you, your Honour.
HIS HONOUR: Yes. Mr Schaudin?
SCHAUDIN: Thank you. I’m conscious that it’s counsel for the Crown and the defence should listen attentively to the summing-up and seek any amplification or correction which is thought necessary to prevent a miscarriage of justice. I don’t say this flippantly or with intentional disrespect, but the last hour and a half of your Honour’s summing-up has simply been a rant about arguments that hadn’t been made, and hadn’t been put. Earlier on this trial, you indicated to Mr Crown that he only sought a direction about consciousness of guilt in relation to one aspect. So, your Honour didn’t intend to go into other aspects. Your Honour did. I’m conscious of what was said--
HIS HONOUR: I went into lies, but when I gave them the consciousness of guilt direction, I referred to that as being in relation to the ERISP.
SCHAUDIN: Certainly, in relation to Mulholland from 2018 NSWCCA 299, with which your Honour may have some familiarity. The majority indicated that there is a limit to the extent to which a trial Judge can comment on the facts of the case. The Judge’s role in a criminal trial is to hold the balance between the contending parties without themselves taking part in the disputations. The Judge does not exercise an inquisitorial role in which he or she seeks to remedy the deficiencies in the case of either side. The last hour and a half is precisely what has been engaged in by your Honour in the directions and the summing-up to the jury. There is nothing that can be said now to rehabilitate the situation. The accused faces the situation that he cannot get a fair trial. In relation to very simplistic factual matters, that are fundamentally wrong, your Honour said to the jury that there can be no expectation that the police will go and investigate around where Mr Elkerdi lived, because they didn’t know until the co-accused got in the witness box to give evidence. Well, that’s fundamentally wrong. The evidence shows--
HIS HONOUR: No.
SCHAUDIN: --they went to the address on the 1st - could I finish my submission?
HIS HONOUR: Yes. I’m just asking you to explain that last point to me.
SCHAUDIN: Thank you. The police went to the address where Mr Elkerdi lived on 1 June and searched it, and they went to the address on 2 June 2023 and seized property from it. So, the suggestion that they couldn’t possibly have found any CCTV is just factually and fundamentally wrong.
HIS HONOUR: Was that in evidence, that they went there on 1 June?
SCHAUDIN: Yes.
HIS HONOUR: 3 June. Alright, thank you.
SCHAUDIN: 1 and 2 June. If I haven’t made it clear, I’m asking your Honour to discharge the jury.
HIS HONOUR: I took that as granted, Mr Schaudin.
SCHAUDIN: Thank you.
His Honour declined to discharge the jury but agreed to read the proposed direction from the Bench Book.
The jury retired to consider its verdict at 12.35pm. They were sent home at 4.01pm and returned unanimous verdicts on all counts the following morning at 11.23am.
The applicant broadly relied on five aspects of the trial judge’s summing up which he submitted cumulatively resulted in an unbalanced and unfair summing up and occasioned a miscarriage of justice.
First, the applicant submitted that his Honour advanced an independent case not put by the Crown when he speculated as to whether the cardboard panels on the windows of unit 150 demonstrated that the shooting was targeted and that Mr Turnbull feared retribution (see above at [61], [73]). This was said to be a theory which formed no part of the Crown’s case nor was it raised with trial counsel during the course of the trial, as the trial judge acknowledged by saying it was “entirely off my own bat, not counsel’s or the Crown’s”.
Secondly, the applicant pointed to various aspects of the summing up that he submitted showed the “persistent sarcastic treatment” of Mr Scicluna’s evidence. This included referring to the unnamed shooter as “the man with no name” and “Mr No Name” and using language with a sarcastic or incredulous quality like “fortuitously” and “why on earth”. As to Mr Scicluna’s duress claim, the applicant submitted that the trial judge advanced a basis for the jury to reject this claim based on the quality and sufficiency of the threats which was not relied on by the Crown, whose case was simply that the unnamed shooter did not exist.
The applicant submitted that the cumulative effect of the tone of the summing up was to signal to the jury that the existence of the third party, as a cornerstone of Mr Scicluna’s account, was implausible and that Mr Scicluna as a witness was not credible. These various expressions, it was submitted, were more akin to a Crown’s closing address and indeed the summing up was more rhetorical, colourful and critical than the corresponding parts of the Crown’s closing address.
Thirdly, the applicant submitted that the trial judge’s exchange with Mr Scicluna about the non-publication order should have been conducted in the jury’s absence. Failing to do so was said to have prejudiced the applicant by raising the “spectre” in the jury’s mind that the unnamed shooter was a fabrication, as the applicant’s primary exculpatory pathway.
Fourthly, the applicant submitted that the trial judge made criticisms of the defence closing address that were not made by the Crown including about the police’s failure to conduct GSR testing and to disclose banking records. Speculation about the science of GSR production and transfer was submitted to have been generated by the trial judge and operated to diminish the defence submissions.
Lastly, the applicant submitted that his Honour’s reference to appeal outcomes “carried an invitation to return a verdict that would not be disturbed on appeal”. By referencing “a successful appeal” or “an appealable point” (see above at [46]-[47]), his Honour was said to have indicated that conviction was the right outcome and that his Honour was endeavouring to insulate that verdict from appeal.
While accepting that some aspects of the summing up were “infelicitously expressed”, the Crown submitted that the five matters relied upon by the applicant did not occasion a miscarriage of justice because they did not deprive the applicant of a fair trial.
First, the Crown submitted that the portions of the summing up about the cardboard panels on the unit’s windows were in fact directed to the unexplained failure of the Crown to call Mr Turnbull, the occupier of the unit, and the absence of any evidence as to the motive of the shooting. The genesis of this criticism of the Crown was said to come from the closing address of trial counsel for Mr Scicluna.
Secondly, the Crown submitted that the parties themselves adopted similar monikers to “the man with no name” and “Mr No Name”. The individual was referred to as “this unnamed friend” by the Crown Prosecutor and as “Mr Unknown” by trial counsel for the applicant. The Crown relied on the fact that trial counsel did not complain about the use of these descriptors in the proceedings below. The Crown submitted that the use of the word “fortuitously” reflected Mr Scicluna’s own evidence that there had been no prior arrangement that he would drive his unidentified friend to another location. It was submitted that the phrases used by the trial judge fell to be assessed within the context of the broader summing up which otherwise fairly and adequately put the applicant’s case.
As to Mr Scicluna’s claim of duress, the Crown submitted that the trial judge was not advancing an independent basis for the jury to reject the claim but simply reminding them of the evidence that bore on the issue.
Thirdly, as to the discussion of a non-publication order in the jury’s presence, the Crown pointed to the fact that no complaint was raised at trial as to this decision. Further, it was submitted that the exchange did not occasion prejudice and in fact provided Mr Scicluna with an opportunity to address before the jury why non-publication orders offered inadequate protection against the threat posed by the unidentified shooter.
Fourthly, while accepting the trial judge addressed the defence’s criticisms of the police investigations in more detail than the Crown Prosecutor, the Crown submitted that his Honour plainly did so to facilitate consideration of the significance of these criticisms to the facts in issue. The Crown submitted that this was necessary where defence counsel’s criticisms “completely overlooked” whether these matters were rationally capable of bearing on the facts in issue.
Finally, the Crown submitted that the trial judge’s references to the possibility of appeal were in the context of correct statements of law about the standard of proof and written directions. The Crown again pointed to the fact that this aspect of the summing up was not the subject of complaint by any party below.
A trial judge’s “broad discretion” to comment on the facts of the case in a criminal trial is an aspect of the power by which a trial judge discharges the fundamental task of ensuring a fair trial of the accused. The discretion is to be exercised judicially as part of ensuring that the facts of the case are put “accurately and fairly” to the jury. It is not exercisable, at large, independently of the fundamental task described above. A fortiori, the trial judge’s summing-up is not an occasion to address the jury in terms apt to add to the force of the case for the prosecution or the accused so as to sway the jury to either view. For that reason, as the plurality in RPS stated, judicial circumspection is required in the exercise of the discretion to comment.
[I]t should be clearly understood that the risk of such unfairness is such that a trial judge should refrain from comments which convey his or her opinion as to the proper determination of a disputed issue of fact to be determined by the jury.
A trial judge’s discretion to comment on the facts should be exercised with circumspection, to the point where, unless there is a specific need to do so, the wise course will often be not to comment at all. Any comment a trial judge does choose to make must exhibit a judicial balance, so that the jury is not deprived of an adequate opportunity of understanding and giving effect to the defence and the matters relied upon in support of the defence. Comments that are unnecessary for the performance of the duty to give fair and accurate instructions to the jury carry the risk of occasioning a miscarriage of justice, particularly when they amount to expressions of opinion as to the determination of disputed issues of fact. There is also a degree of tension between a judge commenting on the facts, and then cautioning the jury that any opinion which might be apparent as a result should not influence them, to the point where it may become questionable whether there is any point in the comment having been made at all.
(i) although there is considerable leeway in the manner in which a summing-up can be structured, it remains essential for a trial judge to summarise, fairly and adequately, the competing cases of the Crown and the accused;
(ii) the requirement to summarise the cases fairly and adequately does not oblige the trial judge to remind the jury every argument advanced by counsel;
(iii) it is the case which the accused makes that the jury must be given to understand, and it is not sufficient for a trial judge to simply say to the jury that they should give consideration to the arguments which have been put by counsel;
(iv) a trial judge must hold an even balance between the Crown case and the accused’s case, and fairly direct the jury’s consideration to the matters raised by the accused in his defence, the detail of which will depend on the circumstances of the particular case;
(v) generally speaking, a trial judge should not put matters to the jury in the summing-up which have not been put by the Crown, but which nevertheless advance the Crown case, because such an approach has the capacity to amount to a denial of natural justice because of the absence of opportunity for the accused to respond; and
(vi) the task of restoring the credit of a Crown witness, or of destroying the credit of the accused, should always be left to the Crown Prosecutor. When such a task is undertaken by a trial judge, there is a risk of losing the appearance of impartiality which is expected.
The overarching principle is that “the requirement of fairness means that ordinarily the respective cases for the prosecution and the accused must be accurately and fairly put to the jury”: Domican v The Queen at 560-561. It is not part of the function of a trial judge to don the mantle of prosecution or defence counsel: Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42 at 682.
Payne JA went on to observe (at [51]) that the question of whether a trial judge has gone “too far in deprecating the defence case depends on the impression gained by reading the summing up as a whole: Green v The Queen (1971) 126 CLR 28; [1971] HCA 55 at 34”. Further (at [55]), in order to determine whether a summing up is unfairly balanced, “it is necessary for it to be considered in its entirety and in the context of the issues and the evidence led in the trial: R v Sukkar [2005] NSWCCA 54 at [90] (per Wood CJ at CL, Hidden J agreeing)”.
With these principles in mind, I turn to consider the five specific complaints made on behalf of the applicant.
His Honour posited a theory that it may have been a targeted shooting because exhibited photos depicted that the outside of the premises appeared to be boarded up with cardboard panels. It is common ground that this “motive” theory had not been put by either the Crown or defence counsel. His Honour’s self-described “submission” on this issue included some incredulous comments about Mr Turnbull and why he would need to have the panels on the front of his premises (was he allergic to light or a photographer?). The Crown’s response to this complaint was to contend that it was directed to the Crown’s unexplained failure to call Mr Turnbull (the occupier of the unit) as a witness at the trial and thus if it caused unfairness to any party, it was to the Crown.
The judge’s advancing of a theory that was not put by either party transgresses the principles I have summarised above. It is to be accepted that it was not a theory which advanced the Crown case per se, but it did suggest a more objectively serious case than a random shooting particularly as it suggested that Mr Turnbull feared some form of retribution. It would not have impacted on Mr Scicluna’s exculpatory account, as on his version it would have been the unnamed man who targeted the house, but on the Crown case the targeted shooting involved both the applicant and Mr Scicluna.
Applying the relevant principles to this specific portion of the summing up, I am satisfied that the theory should not have been put by the trial judge but standing alone it would not have been sufficient to cause a miscarriage of justice; it was not a “submission” which either strengthened the Crown case or deprecated the defence case.
The Crown accepted that the trial judge should not have used the word “fortuitously” as he did (see above at [56]) but maintained that the trial judge’s description of the person who Mr Scicluna identified as the shooter as “Mr No Name” 34 times was not unfair because there was no objection when the Crown Prosecutor referred to that man as the “unnamed friend”. The Crown accepted that it would have been “preferable” if the trial judge had adopted a different descriptor, but contended that the moniker “Mr No Name” was not materially different from “Mr Unknown” which is how trial counsel for the applicant referred to the same individual.
I am unable to accept the submission that describing the unnamed friend of Mr Scicluna as “Mr No Name” 34 times was not problematic. There is a difference between describing a potential witness as “unnamed”, which implies that he has not been named in the proceedings, and using the moniker of “Mr No Name” which not only belittled this aspect of Mr Scicluna’s account but also suggests that the person does not have a name and is fictitious.
Having closely examined the summing up overall, it is to be accepted that the first two of the 34 times that the trial judge referred to this unnamed person as “Mr No Name” were during the brief part of the summing up on day one of the summing up. No complaint was made at the end of that day when counsel had the opportunity to do so. But the tone and content of the summing up on day one was very different to that on day two and the two brief references to Mr No Name were not prominent in it. The only other time that counsel had the opportunity to complain about the moniker was at the conclusion of the summing up on day two at which time complaint about the summing up overall was made with some force. Although in raising their complaints counsel did not specifically refer to the multiple mentions of “Mr No Name”, I do not accept the Crown submission that this constitutes some form of acquiescence on counsel’s part.
As for his Honour’s treatment of Mr Scicluna’s evidence about duress, it was accepted by the Crown that the portion of the summing up “could have been framed differently” but it was contended that it accurately reflected the evidence given by Mr Scicluna as to the nature and extent of the relevant violence and threats. Even if that is the case, it is not an answer to the complaint. It is not for the trial judge to come up with arguments that diminish the strength of a defence case which have not been raised by the Crown. Those portions of the trial judge’s treatment of Mr Scicluna’s evidence founding his claim of duress could have left the jury in no doubt that the trial judge did not think the threats were sufficient to establish the defence.
I accept that the direction as to the legal elements of the duress defence was legally correct but that does not negate the fact that the trial judge pointed out factors which cast doubt on the duress claim which had not been advanced by the Crown.
As for the trial judge’s use of phrases such as “a convenient time” and “why on earth” (see above at [60], [63]-[64]), the Crown accepted that this Court “may well conclude that those comments should not have been made”, but submitted that there was no “danger” or substantial risk that the jury might actually be persuaded of the applicant’s guilt by comments in favour of the prosecution case made with the authority of the trial judge (in reliance on McKell at [42]). I do not accept that submission. By prefacing questions with “why on earth” the jury could only have understood that the trial judge did not believe those aspects of Mr Scicluna’s account.
The complaints in relation to this aspect of the summing up have been made good.
This aspect of the complaint made on behalf of the applicant did not come from the summing up but was said to undermine Mr Scicluna’s claim of duress and hence his credibility overall. Further, it was relied upon by the Crown in his closing address.
It is to be accepted that there was no complaint at trial about the trial judge’s questioning of Mr Scicluna about a non-publication order in front of the jury. The Crown’s position in this Court was that it provided Mr Scicluna with an opportunity to explain to the jury why he did not consider that a non-publication order would provide adequate protection against the threat posed by the unidentified shooter.
There is no doubt that it would have been preferable for the trial judge to have raised this issue with counsel and the witness in the absence of the jury first. It should not have proceeded in the way it did. But standing alone, I am not satisfied that it would have been sufficient to give rise to a miscarriage of justice. Despite this, I have taken it into account in my assessment of the trial judge’s exhibited scepticism towards Mr Scicluna’s account (and hence the applicant’s case). When considered in the context of the other matters raised, it added to the atmosphere of the trial judge clearly not accepting Mr Scicluna’s account.
A significant aspect of the defence closing addresses focussed on criticism of the police investigation. As the portion of the Crown closing address extracted above at [36] makes clear, besides asserting that the police investigation was sound, the Crown did not respond to any specific criticisms that had been raised during the cross-examination of the officer-in-charge about the police investigation. Despite this, the trial judge responded to the criticisms in turn by downplaying each of them.
The Crown accepted in this Court that the trial judge addressed the issue in more detail than the Crown did but submitted that his Honour did so to assist the jury in considering the complaints in the context of the facts in issue at trial. It is to be accepted that some of the complaints made about the police investigation did not advance the defence case in any significant way and/or overlooked the issues at trial. But the Crown was on notice of the complaints given the cross-examination in the Crown case and it was always open to the Crown to address them in the Crown closing address. As the relevant principles make clear, it is not for the trial judge to dismantle defence arguments that the Crown has not addressed. It is to be accepted that it might be difficult in some cases for the Crown to know what the focus of a closing address will be. Further, the Crown has only a very limited right of reply which is rarely afforded: s 160(2) of the Criminal Procedure Act 1986 (NSW). Despite this, it remains the role of the Crown and not the trial judge to dismantle defence criticisms of the prosecution case.
Again, these portions of the summing up breached the principles regarding the making of arguments for a party which had not been made by that party. It should not have occurred. Despite this, if this had been the only complaint made about the closing address then I would not have thought it sufficiently unfair so as to cause a miscarriage of justice. I have, however, had regard to it in the context of the summing up overall.
Finally, the trial judge twice commented to the jury that if he did something wrong (once in his direction as to the meaning of “beyond reasonable doubt” and again in the context of the written directions), then it could lead to a new trial. The Crown response to this complaint was that his Honour correctly stated the law on both counts. Again, that is not a complete response to the criticism.
Implicit in the complaint made about this aspect of the summing up is an assumption that juries would understand that under the Criminal Appeal Act only an accused person can appeal following a criminal trial. It is only in that way can his Honour’s comments be seen to imply that there would not be an appeal unless there was a conviction. It is not clear to me that the jury would have understood that, except for in very limited circumstances (see s 108 of the Crimes (Appeal and Review) Act 2001 (NSW)), the Crown does not have the statutory right to appeal against an acquittal.
Having considered this complaint in the context of the summing up as a whole, it seems to me that although it would have been preferable for the trial judge not to use such language, this portion of the summing up was not unfair to the applicant.
In response to many of the specific complaints made under this ground the Crown contended that each impugned passage of the summing up has to be examined in the context of the summing up overall. That is undoubtedly a correct statement of principle: Haile at [121]-[124]. The Crown also sought to distinguish what occurred in this case with what occurred in cases such as Haile. I accept that the trial judge in Haile failed to specifically and clearly articulate the applicant’s case, a complaint which could not be sustained in the present case. But it cannot be the case that a trial judge is permitted to, for example, undermine an aspect of the defence case of his or her own volition if that is counterbalanced by otherwise clear articulation of the defence case.
Further, consistently with the approach advanced by the Crown, I have examined the impugned complaints in the context of the summing up overall. Taking such an approach has only strengthened my conclusion that the expressions of opinion and characterisation of Mr Scicluna’s evidence has caused a miscarriage of justice in this matter.
As the High Court recently confirmed in Brawn v The King [2025] HCA 20; 99 ALJR 872, an “error or irregularity” in a trial will only give rise to a miscarriage of justice if it is “material in the sense that the error or irregularity could realistically have affected the reasoning of the jury to its verdict” (at [3]). This is consistent with the language in McKell (at [4]) where the High Court observed that the impugned statements of the trial judge were “so lacking in balance as to be seen as an exercise in persuading the jury of the accused’s guilt” and that the unfairness of this resulted in a miscarriage of justice.
I am satisfied that the summing up by the trial judge could realistically have affected the reasoning of the jury to its verdict in that it amounted to an exercise in persuading the jury of the applicant’s guilt. This is consistent with the immediate response of trial counsel who when first given the opportunity to comment sought that the jury be discharged on the basis that the summing up was “not a summing-up” but a “closing address on behalf of the Crown”.
The Crown did not suggest this was a case to which the proviso to s 6 of the Criminal Appeal Act could be applied. That must be accepted given what the Court held in McKell at [4].
I would uphold this ground.
On one view the applicant’s success on ground 1 means that there will need to be a new trial and thus no cause to consider ground 2. Despite this, I propose to do so for completeness.
If you find difficulty in accepting Scicluna’s evidence that he dropped the applicant home before the shooting, but you think that account might be true, you must acquit Mr Elkerdi on Count 1.
Although the applicant did not give evidence at trial, he submitted that the principles in Liberato applied where his primary pathway to acquittal rested upon the evidence of a single witness, Mr Scicluna. This was said to have required the second limb direction; namely, that not merely should the applicant be acquitted if Mr Scicluna was believed, but that the applicant should be acquitted if Mr Scicluna’s account of the drop-off might have been true or was reasonably possible.
Instead, the applicant submitted that his Honour’s reference to the applicant’s case relying “largely on the evidence of Mr Scicluna and whether you accept Mr Scicluna’s evidence as being truthful” directed the jury to approach the matter as a binary question of whether they accepted Mr Scicluna as truthful or not.
The Crown submitted that his Honour “calibrated” the Liberato direction to the applicant’s case by noting the applicant’s reliance on Mr Scicluna’s evidence in the paragraph immediately following the direction (see above at [49]). The absence of any request for a redirection by trial counsel was said to be consistent with an understanding that the Liberato direction given was related to the applicant’s case and not confined to Mr Scicluna’s case.
Further, it was submitted that this was not a case in which the parties or the trial judge framed the issue as a choice between conflicting versions. The circumstantial evidence direction was also said to have reinforced a correct understanding of the onus and standard of proof.
As I recently observed in Ellingford v R [2026] NSWCCA 24 at [2]-[3], the purpose of a Liberato direction is to clarify and reinforce directions regarding the onus and standard of proof in so called “word against word” trials. The source of the direction is the passage from Brennan J’s dissenting reasons in Liberato. In De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48 at [12] (“De Silva”), the High Court clarified, inter alia, that the applicability of the Liberato direction is not limited to trials in which the accused gives sworn evidence; it also arises for consideration in cases where the accused has given a version of events, for example in a recorded interview with police: see at [11].
The applicant did not give evidence at his trial, but Mr Scicluna did. Accordingly. the trial judge gave a Liberato direction in relation to Mr Scicluna’s evidence. The jury was directed in accordance with the three limbs of the direction. First, they were directed that if they believed Mr Scicluna’s evidence then “obviously” they must acquit. Second, they were further directed that if they had difficulty in accepting his evidence but thought it might be true, they must acquit (the second limb). Thirdly, they were directed that if they did not believe Mr Scicluna’s evidence, they should put it to one side and ask whether the Crown has proved the accused’s guilt beyond reasonable doubt.
Immediately after giving this direction, his Honour related it to the applicant’s case by stating the following:
Now, of course, as I have said to you, Mr Elkerdi relies on the evidence of Mr Scicluna as to his having been dropped off prior to the man with no name getting in the car with the gun and bag of ammunition, and then that person carrying out the offence that constitutes Count 1. (Emphasis added.)
Much later in the summing up, when summarising the applicant’s case, his Honour repeated that, “… Mr Elkerdi’s case relies largely on the evidence of Mr Scicluna and whether you accept Mr Scicluna’s evidence as being truthful”.
Thus, it can be seen that the jury was given a conventional Liberato direction about Mr Scicluna’s evidence and they were directed immediately after that direction that the applicant relied on Mr Scicluna’s evidence about dropping the applicant off before the shooting. The complaint under this ground is that the judge erred by not giving the second limb of the Liberato direction again specifically in relation to the applicant after he gave the full direction in relation to Mr Scicluna.
The Crown noted in its written submissions that the applicant had not formulated the direction which he now says ought to have been given in written submissions: cf Greenhalgh v R [2017] NSWCCA 94. In response, counsel for the applicant handed up a written proposed direction at the hearing of this appeal in these terms:
If you find difficulty in accepting Mr Scicluna’s evidence that he dropped the applicant home before the shooting, but you think that account might be true, you must acquit Mr Elkerdi on Count 1.
The failure to give a Liberato direction will not necessarily be a material error or irregularity which will lead to a miscarriage of justice. For example, in De Silva, no such direction was given but the High Court did not consider that the failure to do so caused the trial to miscarry. In De Silva, the prosecution case was dependent upon acceptance of the complainant’s evidence beyond reasonable doubt and the applicant had provided a version to police denying the offence. The Court was satisfied that the trial did not miscarry because the jury was appropriately directed as to the onus and standard of proof and it had been made clear to them that they had to be satisfied beyond reasonable doubt of the complainant’s reliability and credibility in order to convict the accused: see at [31]-[36].
Similarly, in the present case, the trial judge gave a full Liberato direction, albeit in relation to Mr Scicluna’s evidence. His Honour also directed the jury about the standard and burden of proof and repeated that in the context of the circumstantial evidence direction. Although his Honour did not frame the issue as a choice between conflicting versions (as opposed to what occurred in Haile and Evans v R; Evans v R [2024] NSWCCA 245), the Crown accepted that the applicant’s case turned on an issue of credit.
As is clear from De Silva, the failure to provide a Liberato direction in a case turning on “a conflict between the evidence of a prosecution witness and the evidence of a defence witness” (to adopt the language in Liberato) will not necessarily lead the trial to miscarry. Despite this, there have been a number of recent decisions of this Court in which appeals have been allowed due to the failure to give a full or modified Liberato direction. In recent years, the requirement to give a Liberato direction has been extended not only to cases where the accused only gives an unsworn account (see eg De Silva) but also to cases in which the accused person does not give any version at all, but a defence witness does and the accused person relies on that version.
In Engstrom v R [2026] NSWCCA 30, the applicant had given a version that he did not know border controlled drugs had been secreted into an excavator imported by his business. In summing up, the trial judge purported to give a Liberato direction but told the jury that they must unanimously accept his evidence in order to acquit him. The trial judge also did not direct the jury in accordance with the second and third limbs of the Liberato direction. The Crown on appeal conceded that this was a material error and the issue on appeal was rather whether the proviso in s 6(1) of the Criminal Appeal Act should be applied.
Harrison AJA (with whom Sweeney and Muston JJ agreed) observed the following as to the adequacy of the Liberato direction (at [6]-[8]):
[6] The requirement for unanimity is a requirement that the jury’s verdict be unanimous: see Cheatle v The Queen (1993) 177 CLR 541 at 551-552. However, it is not necessary for the jury to be unanimous as to the evidentiary route or basis by which they reach their conclusion that an essential element of the offence has or has not been established: AKB v R [2024] NSWCCA 169 at [58]; Ribbon v The Queen (2019) 134 SASR 328 at [260]. Mr Engstrom submitted that the direction in this case conveyed to the jury that they had to be unanimous with respect to the evidentiary route they took to their verdict in that they had to be unanimous in accepting his evidence before he was entitled to be acquitted. Although the direction referred in terms to the concept of the jury’s “unanimous verdict”, the direction introduced a further requirement of unanimity that “all” jurors had to accept the evidence he gave in which case the verdict would be not guilty. In this respect, the direction was erroneous.
[7] Secondly, the direction indicated that it was a matter for the jury not only on the question of whether they accepted or did not accept Mr Engstrom’s evidence but also the weight the jury were to give to it. It was erroneous for the trial judge to inform the jury that the weight given to Mr Engstrom’s evidence was a matter for them. If the jury accepted Mr Engstrom’s evidence, or thought it might be true, then he was entitled to an acquittal. There is no further stage at which the jury can go on to consider that little weight can be given to an accused’s evidence in reasoning to guilt. The question of whether the jury accept an accused’s evidence, or think it might be true or reject it in full dictates the reasoning process and outcome and it is not a matter of the weight to be ascribed to evidence that has been accepted.
[8] Thirdly, the direction was inadequate because it did not clearly direct the jury, in accordance with the second and third limbs of the Liberato direction, as refined in De Silva at [12], namely that:
(a) Mr Engstrom was entitled to an acquittal if, despite not accepting his evidence, they considered that it might be true; or
(b) in the case that the jury rejected his evidence, they should put it to one side and ask themselves whether the Crown had proven, on the basis of the evidence which they did accept, Mr Engstrom’s guilt beyond reasonable doubt.
In Evans v R, two co-accused in a murder case gave evidence. During the summing up, there were occasions where it was put that the jury was confronted with competing versions of events and only one could be accepted. The trial judge then declined to give a Liberato direction despite it being sought by all parties.
Leeming JA and Rothman J found that a Liberato direction was required as follows (at [98]-[100]):
[98] A Liberato direction is closely related to the obligation of the Crown to prove beyond reasonable doubt the elements of the offence charged. But there was nonetheless an important distinction between instructing the jury that the Crown must prove each element of the offence beyond reasonable doubt, and instructing the jury that if they did not accept the evidence of John or Keith Evans, that did not entitle them to convict. That distinction is, at least in large measure, why the Liberato direction is distinct from the direction as to the onus of proof. The Liberato direction speaks directly to a key aspect of the task for the tribunal of fact. It may have an important practical effect upon the jury, bringing home to them the nature of the task they must perform.
[99] By forcing the jury to confront the fact that even if they do not accept the evidence of the accused, if they consider it might be true then they must acquit, the jury is directed squarely as to the level of satisfaction they must attain in order to convict, and the reasoning process to be undertaken.
[100] To be very clear about one aspect, it is not to the point that many aspects of the positive case propounded by John and Keith Evans was implausible. Nor is it to the point that some of the accounts given by them, particularly by John Evans, involved lies to the police. Indeed, the probability that the jury would be disinclined to accept at least parts of their evidence, and form the view that at least one of them had told lies, made the need for a Liberato direction all the greater.
The three aspects of the Liberato direction cover three points on the spectrum of belief with respect to what the accused has said. The first aspect addresses positive belief; the third, positive disbelief. The second aspect recognises that there an area between these two, where the accused’s version is not actually believed but nor is it wholly rejected. Here, whilst her Honour did go on to refer to where “you cannot come to a view about who to believe”, that does not quite capture the same point. Further, the statement relied on by the Crown also did not capture the directness of the command that the jury must acquit the accused if they think his account might be true. (Emphasis in original.)
I have considered the principles derived from these decisions and their different factual contexts. What makes this case different is that all three limbs of the Liberato direction were given in relation to Mr Scicluna and then immediately afterwards the jury was reminded that Mr Elkerdi also relied on that evidence. Given that fact, the applicant’s contention under this ground must be that the jury might not have understood that if they were satisfied that Mr Scicluna’s evidence might be true and therefore must acquit, that it did not follow that they must also acquit the applicant on the same basis. I am unable to accept that contention having regard to the direction given in the context of the summing up overall.
It is telling that counsel did not seek a redirection. The Liberato direction was given on day one. At the end of that day, both counsel were specifically asked whether there were any issues they wished to raise and they both declined the offer. This can be a strong indication that there was no miscarriage of justice: BQ v The King (2024) 279 CLR 124; [2024] HCA 29 at [56]. The failure to seek a redirection may be explicable by the fact that, in the atmosphere of the trial, counsel saw no unfairness: Germakian v R (2007) 70 NSWLR 467; [2007] NSWCCA 373 at [10]-[13]; Sanchez v R [2009] NSWCCA 171; 196 A Crim R 472 at [58]-[61]; Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288 at [121], and Greenhalgh v R at [42].
For these reasons, I would grant leave but dismiss this ground of appeal.
Accordingly, I would propose the following orders:
Grant leave to appeal.
Allow the appeal.
Quash the applicant’s conviction.
Order a new trial of the applicant.
Stand the matter over to the District Court Arraignment List on 7 July 2026 at 10:00am.
CAVANAGH J**:** I agree with N Adams CJ at CL.
McNAUGHTON J**:** I agree with N Adams CJ at CL.
**********
Elkerdi
R
(2015) 91 NSWLR 258
(2024) 279 CLR 124
(2019) 268 CLR 57
(2007) 70 NSWLR 467
(2022) 109 NSWLR 288
(1985) 159 CLR 507
(2008) 232 CLR 397
(2019) 264 CLR 307
(2018) 100 NSWLR 477
(1983) 152 CLR 657
(1971) 126 CLR 28
(1993) 177 CLR 541
(2019) 134 SASR 328