Hadchiti v R

Background

1. The deceased was the boyfriend of the appellant's sister, Ms Marian Roumanos, who was separated from the father of her two young children. Ms Roumanos gave evidence that her parents were unhappy about her separation from her former husband.
2. On Sunday 30 October 2011, Ms Roumanos' children had been staying in the Hadchiti family home, which was located on a large semi-rural block in Londonderry in outer northwestern Sydney. The appellant, who was then aged 20, lived there with his parents George and Sonia, and brothers Mehriz and Rabih. Another son, John, lived with his wife and children in a granny flat at the back of the block. Without conveying any disrespect, we will refer to the members of the Hadchiti family by their given names.
3. On the evening of 30 October 2011, the deceased drove to the Hadchiti residence in order to collect Marian's children. With him in the car were Marian and the deceased's niece, who cannot be identified because she was then aged 14, whom we shall call TB.
4. The evidence permitted the timing of the critical events to be placed with some precision. At 8.50pm, the deceased purchased two bottles of soft drink and a bottle of water from a store in North Richmond. A call lasting 94 seconds was made by the deceased to Sonia at 9.07pm, shortly before he arrived at the Hadchiti family home. (There was evidence that it would take around 8 minutes to drive from the store to the Hadchiti residence.) The first "000" call was made by Sonia at 9.17pm, and police arrived at 9.29pm. When the police arrived, the deceased was lying face down on the grassed area at the front of the house. There was a large amount of blood. The appellant was sitting near the deceased with a brown-handled knife between his feet. His shoes and hands were stained with blood.
5. While the events that took place between 9.07pm and the arrival of the police at 9.29pm were the subject of conflicting evidence at trial, the following facts are uncontroversial, save where otherwise indicated.
6. The deceased stopped the car outside the Hadchiti premises, and walked into the front yard alone to collect the children. There was no street lighting outside the Hadchiti residence. Marian and TB remained outside the property.
7. At around 9.15pm, Marian and TB were let into the house of two near neighbours, who lived around three houses along the street, although that was "[a]pproximately 500 metres or so" along the street. The neighbours knew Marian. One gave evidence that Marian said: "My phone is flat. Can I use your phone? I need to ring the police. They are going to kill Billy." The calls to "000" did not connect, but Marian did eventually speak to the local police. The neighbour said that Marian also tried to call her mother, and the deceased, without success. Telephone records showed two short calls (of 8 and 5 seconds' duration) from the neighbours' landline to the deceased's mobile phone at 9.27pm and 9.29pm. The neighbour gave this evidence: "A. She didn't get through to her mother or Billy but then she rang the home phone and she got through to somebody. I heard her scream at the top of her lungs: 'Where is Billy?' I don't know who she was talking to at the time and she started talking in Lebanese. I didn't understand the conversation and then she hung up. Q. Did you speak to her and ask her who she was speaking to? A. Yes I did. I asked her who she spoke to and she said: 'That was my father I spoke to.' Q. Did she say what he said? A. Yes she did. She said that he told her to 'eat shit'."
8. Sonia made two "000" calls that night. Both were recorded, and transcripts were tendered at the trial. In the first, at 9.17pm, she asked for the police. She said "he had a knife in his hand please hurry he attacked me." The second, made at 9.22pm, was to the ambulance. She said "please hurry someone tried to stab me … someone is injured and the guy who stabbed me had a knife please hurry".
9. A brown coloured steel chair frame was found by the police in the front yard of the Hadchiti premises. It was photographed by police, resting on its side. Underneath it were the black sunglasses the deceased had been wearing, and his car keys and a swipe pass. Numerous blood stains were also found on the steel chair frame. There was an injury to the middle of the deceased's back at the level of the T3 vertebra, in the shape of a 23 mm x 23 mm square, which corresponded to the edge of the chair frame.
10. Two knives were recovered from the property. One was a brown handled pocket knife, with the blood of the deceased on it. Another was a "Columbia" brand knife, which also contained the deceased's blood.
11. The autopsy showed that although the deceased had suffered many wounds to his head and chest, including a punctured lung, and two wounds to the back of his head, one of which fractured his skull, the cause of his death was a broad slicing 16 x 7 cm transversely aligned horizontal gaping incised wound to the front of his neck. An expert forensic pathologist gave evidence that the knife had severed both sternomastoid muscles (the thick muscles on the side of the neck) as well as the right common carotid artery and the adjacent right internal jugular vein. On the right side of the neck was a "fish tail" like appearance. The forensic pathologist gave evidence that: "by far the most common means by which such an appearance is caused in an incised wound is by a to-ing and fro-ing motion of the knife. In other words a single slice of the knife should not cause multiple defects in the skin so it is much more likely it is a cut one way followed by being brought back at the same level. A sawing motion if you like."
12. However, the pathologist conceded in cross-examination that he could not exclude as a possibility that the wound had been inflicted in a face-to-face struggle.
13. It was common ground at trial that the appellant had inflicted the wound to the deceased's neck from which he died. The issues were his intention at the time, self-defence and provocation. The defence case was that the deceased had attacked Sonia with a knife, that the appellant had gone to her aid, struggled with the deceased and killed him while struggling for control of the knife.
14. A yellow t-shirt which had been worn by Sonia was torn and the deceased's DNA was found on its left sleeve.
15. The appellant had blood on his hands, his shoes and his clothes when the police arrived (photographs taken of him that evening were tendered at the trial). He told police at the scene that "He stabbed me, I didn't have a choice".
16. The appellant had suffered a wound to his left wrist. A director of the police Clinical Forensic Unit, who had seen photographs of the wound, gave the following evidence of that wound: "The injury to the left wrist is clearly an incised wound resulting from a sharp instrument such as a knife. It is probable that the injury was a result of an assault described by the subject but self-inflicted injury cannot be excluded definitely [sic, definitively]".
17. The deceased had a background involving violence, including violence to women involving a knife. The jury was told of his antecedents, including matters for which he was not convicted. He had been charged with assaulting a woman outside her home in 2001 (and was not convicted), he was charged in 2002 with two counts of common assault including upon a previous girlfriend with whom he had a child, but was not convicted. He was apprehended by police in 2003 after throwing a knife to the footpath, and he confronted a woman in 2007 with a large bread knife and said "I'm going to cut your throat". Both of these matters resulted in convictions. In June 2008 he had entered the Blacktown Methadone Clinic with a large knife; this did not result in a conviction. Finally, on 5 August 2008, when asked by police to stop a car he was driving whose registration had expired, the deceased reversed the car into the police vehicle. It collided heavily with the front of the police car. The police alighted with firearms drawn, but the deceased drove away. Eventually he was arrested. The evidence was not clear as to whether he was convicted.

The course of the trial before the primary judge

1. The Crown called (amongst many others) Marian Roumanos, George, Sonia, Mehriz, and Rabih Hadchiti, and Mr Amin (an unrelated family friend who was visiting that evening). Each was advised of their rights under s 128 of the Evidence Act 1995 (NSW). In each case, application was made under s 38 of the Evidence Act for a determination that they were unfavourable witnesses. In each case, the application was unopposed. TB also gave evidence, by a DVD played to the jury, which recorded an interview commencing just after 11am on the day following the events at the Hadchiti residence.
2. The appellant gave evidence, and admitted that he had inflicted the wound to the deceased's neck. However, he denied that he intended to kill the deceased or cause him serious injury.
3. On the 10th day of the trial, Friday 8 November 2013, the trial judge provided some draft written directions, which became MFI 17, to counsel. The appellant's case concluded shortly thereafter. In the absence of a Crown case in reply, the Court almost immediately adjourned. On the morning of Monday 11 November 2013, the primary judge circulated a further draft of the proposed written directions as MFI 18. Addresses by the Crown and defence occupied the whole of the Monday, following which defence counsel raised (in the absence of the jury) some minor changes to parts of MFI 18.
4. The closing address by the defence concluded on the Tuesday, following which the trial judge addressed the jury for the balance of that day, handing to them the final version of the written direction which became MFI 19. Her summing up was made by reference to that document. The summing up occupied 75 pages of transcript on the Tuesday (by which time her Honour had reached "Issue 4 - Provocation"), and a further 18 pages of transcript on Wednesday. It will be necessary in what follows to deal in detail with both the oral and written directions to the jury, which are the subject of ground 1 of the appeal against conviction.
5. Before adjourning on Friday 8 November 2013, the trial judge had raised the possibility of a warning under s 165 of the Evidence Act in respect of the evidence given by members of the Hadchiti family with the Crown, who agreed. The warning given in relation to the jury's acceptance of the exculpatory evidence of those witnesses is the subject of ground 2 of the appeal against conviction.

Ground 1 - the directions to the jury

1. The first ground of appeal in the conviction appeal was that "[t]he directions to the jury reversed the onus and standard of proof". Some parts of the appellant's written and oral submissions extended beyond that ground. This occurred without any objection from the Crown, who responsibly took the view that it was appropriate to address the totality of the complaints about the directions to the jury on their merits.

The written direction

1. The written direction occupied seven pages. It is reproduced in its entirety as an annexure to this judgment. The first page, accurately and, it might be said, conventionally, directed the jury that they would find that the crime of murder had been committed by the accused if they concluded that the Crown had established beyond reasonable doubt each of the following four elements: "(i) that the accused deliberately stabbed Billy Mack in the neck, causing his death; and (ii) that the stabbing was done with an intention to kill Billy Mack or to inflict grievous bodily harm upon him (grievous bodily harm means really serious physical injury); and (iii) that the stabbing was not carried out in self-defence; and (iv) that the accused was not acting under provocation."
2. The first page then identified the elements of manslaughter in a similar fashion.
3. Allowing for the inclusion of the defence of provocation which was left to the jury, the first page of the document substantially corresponds with the model written direction appended to this Court's decision in R v Jones (1995) 38 NSWLR 652 at 663 which Hunt CJ at CL considered would greatly assist the jury to follow the summing up.
4. The following six pages identified five issues and asked eight questions over 42 numbered paragraphs. They amount to what has been described as a "question trail". It was these pages to which the submissions on appeal were principally directed.
5. As originally formulated on page 1, the issues were framed in terms of whether the Crown had established a matter beyond reasonable doubt. However, the questions relating to the elements of murder posed on the following pages did not - save for two exceptions - refer to beyond reasonable doubt at all. This was the principal objection to the directions advanced by Mr Game SC, who appeared for the appellant, although not at trial.
6. For example, the first issue, whether the Crown had shown that the stabbing was deliberate, involved the following question and chain of steps: "10. Question 1 - Is there a reasonable possibility that the accused did not deliberately stab Billy Mack in the neck? 11. If the answer to this question is yes, then the accused is not guilty of murder and the question of manslaughter does not arise. The proper verdict is then not guilty of murder. 12. If the answer to this question is no, then you must consider question 2."

The oral summing up

1. As noted above, the primary judge's oral summing up followed MFI 19. When dealing with "beyond reasonable doubt", her Honour said: "Repeated mention has been made of the Crown's obligation to prove that the accused is guilty, beyond reasonable doubt. This expression 'proof beyond reasonable doubt' is an ancient one, which does not need further explanation from the trial judges. The words are words of ordinary everyday usage. You should thus ask yourself, 'Is there a reasonable possibility that the accused is not guilty?' If you conclude on the evidence that there is such a possibility, then you will conclude that the Crown has not proven the charges which the accused faces."
2. Mr Game described this as a "serious misdirection". He did so for two main reasons. The first was that notwithstanding that the trial judge correctly stated that the expression "beyond reasonable doubt" should not be explained further, that was precisely what her Honour went on to do, in the very next two sentences, which once again equate beyond reasonable doubt to the absence of a reasonable possibility.
3. The second reason for his criticism was that the explanation by her Honour involved the jury reaching a conclusion that there was a "reasonable possibility" of innocence, which amounted, so it was said, to a reversal of onus.
4. The Crown observed, correctly, that the passage reproduced above resembled the model direction on standard of proof in the Bench Book prepared by the Judicial Commission. The Court was told that the present form of the passage in the Bench Book had remained unchanged since at least 2007. The passage (at [3-600]) is as follows: "Standard of proof The Crown must prove the accused's guilt beyond reasonable doubt. That is the high standard of proof that the Crown must achieve before you can convict the accused. At the end of your consideration of the evidence in the trial and the submissions made to you by the parties you must ask yourself whether the Crown has established the accused's guilt beyond reasonable doubt. In other words, you should ask yourself, 'Is there any reasonable possibility that the accused is not guilty?'"
5. The passage correctly refers, in a note, to "longstanding authority for the proposition that, except in certain limited circumstances, no attempt should be made to explain or embellish the meaning of the phrase 'beyond reasonable doubt'".

Consideration of ground 1

1. We have concluded that the submissions made in connection with this ground have been made out, for the following reasons.
2. First, the task when addressing a complaint as to a jury direction is as stated by Porter J, with the agreement of Wood and Pearce JJ, in Lin v Tasmania [2015] TASCCA 13 at [108]: "[I]t is important for the Court to have regard to the overall impression which the whole summing up would have created in the minds of the jury: R v Ho (2002) 130 A Crim R 545 at [32]; R v Daniel (2010) 207 A Crim R 449 at [25]; R v Thomas [2015] SASCFC 55 at [79]. Small snippets from a summing up should not be wholly divorced from their context; questions of whether particular parts invalidate an otherwise proper summing up raise matters of fact, degree and general impression: R v Calides (1983) 34 SASR 355 at 357." The submissions of both counsel on appeal accorded with that approach.
3. We do not consider that the oral summing up, correctly emphasising the Crown's obligation to prove beyond reasonable doubt, displaced the force of the seven page written direction. It is not necessary to express a concluded view, but if the oral direction were considered alone, then we would very much doubt that the errors to which Mr Game pointed would have been sufficient to detract from the jurors performing their task in accordance with law. The weight of the address, considered as a whole, reiterated the obligation borne by the Crown to establish the elements of the offence beyond reasonable doubt. We would accept the Crown's submission to that effect.
4. But it was the seven pages of MFI 19 which were taken into the jury room. It is to be presumed that since they commanded the jury to approach their task in a particular way (for example "If the answer to this question is no, then you must consider question 2") the jurors paid close regard to the document at the very time that they reached their verdict. That is after all what the trial judge instructed the jury to do in terms. Moreover, and decisively, to our minds, is the common-sense consideration that it would be the written document in the jury room which would decisively frame the jurors' deliberations, as opposed to the jurors' recollections of a lengthy oral address. We would respectfully adopt what Simpson J said of the effect of a written direction in Justins v The Queen [2010] NSWCCA 242; 79 NSWLR 544 at [242]: "[I]t must also be remembered that a jury will have the written directions in the jury room long after the oral directions have concluded. It will be written directions to which the jury will have resort, perhaps repeatedly. And the force of the written word will be likely to override the recollection the jury has of the oral directions."

Ground 2 - the unreliability warning

1. Ground 2 in the appeal against conviction was that the trial judge erred "in giving an unreliability warning in respect of the Hadchiti family because there were 'good reasons for not giving the direction'".
2. The primary judge gave a relatively lengthy warning against the reliability of the evidence of George, Sonia, Mehriz, Rabih and Mr Amin. (Her Honour did not mention the other son who was called to give evidence, John, but although her failure to do so was briefly criticised in oral submissions on appeal, it was not challenged that he was in a "granny flat" the entire evening; indeed he was not challenged by the Crown in any respect in his evidence.)
3. The warning was modelled on a standard accomplice warning. The Crown accepted on appeal that "[i]t may well be perceived that the Judge should have tempered the direction" and "[s]ome aspects of the warning [were] arguably not necessary" (written submissions, paragraph 55). The Crown concluded that "although not the subject of complaint at the time, the terms of the warning may well have extended beyond what was necessary or required in the circumstances of this case" (written submissions, paragraph 58).
4. The warning was not sought by a party. The trial judge proposed it, in the absence of the jury, as follows: "I take it, given the way in which the Crown has put its case, that one of the things that will need to be addressed in the summing up is directions in relation to witnesses who might have been criminally concerned in this matter."
5. The Crown said that was correct. There was no opposition or objection from the defence.
6. Section 165 of the Evidence Act relevantly provides: "165 Unreliable evidence (1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence: ... (d) evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding, ... (2) If there is a jury and a party so requests, the judge is to: (a) warn the jury that the evidence may be unreliable, and (b) inform the jury of matters that may cause it to be unreliable, and (c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it. (3) The judge need not comply with subsection (2) if there are good reasons for not doing so."

The proviso

1. Section 6(1) of the Criminal Appeal Act 1912 (NSW) provides as follows: "The court on any appeal under section 5(1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred" (emphasis added).
2. The emphasised portion of s 6(1) is generally referred to as the "proviso", empowering this Court to dismiss an appeal, even in the face of error by the primary judge.
3. The Crown submitted in writing that, in respect of ground 1: "If, contrary to these submissions, the Court were to be satisfied of error, then dependent on the view taken of the asserted errors, the proviso may apply."
4. That was the entirety of the Crown's reliance on the proviso in its written submissions. That course is less than desirable. As was said in Mortada v R [2014] NSWCCA 36 at [156]: "It is important for the person convicted at such a trial, as well as for the efficient operation of the Court, and the avoidance of a needless retrial in the limited circumstances where the proviso operates, that the Crown provide detailed and substantial assistance in explaining why a guilty verdict was inevitable and how that conclusion can safely be reached, notwithstanding the natural limitations of appellate review."
5. The Crown's reliance on the proviso was expanded upon in oral address: "This was a case that your Honours were considering the evidence, where there was spectacularly compelling evidence in relation to material that supported the Crown's case. … [T]hey're very clear parts [of the evidence] showing this was a concerted attack upon the deceased that commenced from the moment he arrived." The Crown outlined a number of aspects of the evidence to support this submission. In response, Mr Game drew attention to a number of aspects of the evidence which he said "could raise a reasonable doubt".

The law on the proviso

1. The history of the adoption of the proviso is set out in the High Court's judgment in Weiss v The Queen [2005] HCA 81; 224 CLR 300 at [12]-[30], by reference to equivalent Victorian legislation. The High Court there held at [35] that "in applying the proviso, the task is to decide whether a 'substantial miscarriage of justice has actually occurred'." More specifically, at [41]: "[t]he appellate court must make its own independent assessment of the evidence and determine whether, making due allowance for the 'natural limitations' that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty" (citations omitted).
2. As Gageler J said in Baini v The Queen [2012] HCA 59; 246 CLR 469 at [51]-[52]: "… Weiss v The Queen overturned that understanding of the essential condition of the respondent persuading the court of criminal appeal that 'no substantial miscarriage of justice has actually occurred'. … As reformulated, the essential condition became that the court of criminal appeal itself be persuaded 'that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty'. … The reformulation in Weiss must, of course, be applied by courts of criminal appeal '[u]nless, and until, a majority of this Court qualifies what is said in [it]'" (citations omitted).
3. As the majority stated in Filippou v The Queen [2015] HCA 29; 89 ALJR 776 at [15]: "By 'substantial miscarriage of justice' what is meant is that the possibility cannot be excluded beyond reasonable doubt that the appellant has been denied a chance of acquittal which was fairly open to him or her or that there was some other departure from a trial according to law that warrants that description" (citations omitted).
4. There are two reasons why we would not apply the proviso in this matter. The first is by reason of a body of authority on the importance of a jury instruction about the standard and onus of proof. However strong the Crown case be, the appellant was entitled to a trial according to law. And however strong the Crown case, there are trials to which the proviso is incapable of applying. The second is that, having reviewed the evidence, we are not satisfied that the Crown case is as "spectacularly compelling" as was submitted. We deal with each reason in turn.

Misdirection as to standard and onus of proof

1. As a majority of the High Court said in Handlen v The Queen [2011] HCA 51; 245 CLR 282 at [47] by reference to Weiss, "there is no single universally applicable description of what constitutes a 'substantial miscarriage of justice'" (emphasis in original). In Krakouer v The Queen [1998] HCA 43; 194 CLR 202 at [74]-[75], McHugh J gave an example of such an error. His Honour said: "Misdirections of law in a criminal trial can take many forms. Of few of them can it be said that, at all times and in all circumstances, they constitute a miscarriage of justice. Legal error must often give way to cogent evidence of guilt. But on such matters as the standard or onus of proof or the functions of the jury, the position is different. These matters go to the root of a criminal trial according to law. It is difficult to see how the weight of evidence can have any relevance as to whether or not a misdirection on such matters is a miscarriage of justice. That is not to say that a misdirection as to one of those matters is always a miscarriage of justice. The error may be so trivial that a Court of Criminal Appeal can properly conclude that there has been a trial according to law, notwithstanding the misdirection. But if a direction on the standard or onus of proof or the function of the jury is substantially wrong, I cannot presently conceive of a case where the weight of evidence against the accused could affect the conclusion that a miscarriage of justice has occurred. An accused person is entitled to a trial according to law. Where the law requires that an issue be tried by a jury, the accused does not have a trial in any meaningful sense where the jury is prevented by judicial direction from determining the issue. It is of no relevance in my opinion that a court of criminal appeal thinks that the evidence of guilt is overwhelming. An accused is entitled to be tried by the jury. That is the tribunal that is given the responsibility for determining the guilt of an accused person."
2. His Honour was the only member of the Court who declined to apply the proviso. On the other hand, his Honour's statement about the standard or onus of proof or the function of the jury being substantially wrong, although obiter, was not something denied by the joint judgment. Indeed, a deal of subsequent authority supports it.
3. At the level of the High Court, it has received the qualified support of French CJ, Gummow, Hayne and Crennan JJ in Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; 246 CLR 92 at [31]: "It may well be right to observe that the proviso could seldom be applied in a case where, as here, the jury were not sufficiently directed of the need to be satisfied to the requisite standard of an element of the offence being considered."

Denial of a chance of acquittal fairly open

1. Even if that be not the case, we are nonetheless satisfied that, in the language of the majority in Filippou, "the possibility cannot be excluded beyond reasonable doubt that the appellant has been denied a chance of acquittal which was fairly open to him".
2. The Crown case was that the deceased was set upon by the appellant and other members of the Hadchiti family immediately upon his arrival at the residence. Particular reliance was placed upon the fact that Marian and TB gave evidence that the deceased shouted several times "Let me go you scumbags" (emphasising the plural "scumbags"), and the expert evidence of the nature of the deceased's wounds. The Crown case was that there was no provocation or self-defence.
3. We will deal with each aspect of the Crown's case in turn. First, as noted at the outset of these reasons, the expert evidence was powerful, but not conclusive.
4. Secondly, Marian's evidence was highly contradictory. At first, she said that both the deceased and she were on drugs on 30 October 2011, and "I didn't want my parents to see me high on drugs." She said that the deceased rang her mother, Sonia, as they approached the residence, and then: "Q. Do you remember what he said to your mother? A. I don't know, I didn't hear no conversation, he just bolted. He went crazy. Like everything went so quick. He did a U-turn quickly, just went, he didn't communicate with me at all, he just chucked us out of the car and didn't communicate at all with us. Me and [TB] were just stranded on the side of the road. Q. It wasn't that you requested Billy to let you out, both you and [TB]? A. Well he told us to get out. Q. Now when Billy went to the property what did you hear? A. I heard mum scream really loud like something terrible had happened and dogs barking and I grabbed [TB's] phone and-- Q. Just stopping there Marian; did you hear anything from Billy? A. Not that I recall."
5. At that stage, in the absence of the jury, the Crown applied under s 38 of the Evidence Act that she be regarded as an unfavourable witness, having regard to her prior statement to police and the evidence she had given at the committal, to the effect that she had heard the deceased say three or four times "Let me go you scumbags", her evidence to the neighbour that "I need to ring the police. They are going to kill him" and her evidence to a police constable when she returned to the property: "Oh no, oh my God, they've executed him". Counsel for the appellant conceded the application should succeed.

Orders

1. For those reasons, there should be a grant of leave, confined to ground 1. The appeal should be allowed, the appellant's conviction set aside, and a new trial ordered. This is plainly a case where the power to order a new trial is available and should be exercised: see ST v R [2010] NSWCCA 5.
2. It is not necessary to address the application for leave to appeal against sentence, save for one matter, which we mention against the possibility that her Honour's remarks on sentence need to be considered in the future, and because they are publicly available. Her Honour said at [107] of the remarks on sentence: "Objectively, this was a most serious offence. In sentencing the offender it cannot be overlooked that he still actively persists in sheltering those involved with him from the consequences of their part in this terrible crime. It follows that his moral culpability for his awful offence is also high."
3. On a natural reading of that passage in its context, her Honour was using the fact that the appellant presented a case and maintained a case that he acted alone, which was rejected by the jury, to increase the finding of moral culpability. The Crown in our view properly conceded that, when so read, this was erroneous. As was said in Siganto v The Queen [1998] HCA 74; 194 CLR 656 at [22]: "A person charged with a criminal offence is entitled to plead not guilty, and defend himself or herself, without thereby attracting the risk of the imposition of a penalty more serious than would otherwise have been imposed."
4. The formal orders will therefore be as follows: 1. Grant leave to appeal against conviction, confined to ground 1 of the notice of application for leave to appeal filed 28 May 2015. 2. Appeal against conviction allowed. 3. Quash the appellant's conviction for murder on the charge contained in the indictment against him dated 28 October 2013. 4. Order that the matter be remitted to the Supreme Court for retrial.

Amendments 28 August 2017 - [9] - 5th line, "We" changed to "I" and "They were" changed to "They are". [64] - [sic] added after "beyond reasonable doubt that". [70] - "the" inserted before "jury room". [73] - [70] replaced with [30]. [104] - Spelling of Youssef corrected. [118] - Spelling of Rabih corrected. [133] - Spelling of Rabih corrected. [142] - "determined" replaced with "returned". [157] - "they're" changed to "They are". [159] - change to punctuation in quote. [162] - Comma deleted. [165] - "threating" replaced with "threatening". DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 August 2017