Maraache v R

Police Interview of Mr Maraache 35Following his arrest, the police interviewed Mr Maraache. In the interview he said that, on the night in question, he was with his wife until 11:30pm, when he dropped her off at a McDonalds restaurant and returned home with his mate and had a shower. In the record of the interview, Mr Maraache is recorded as referring to his mate as "Shahil", which must be a reference to Suhail, and thus to Mr Mohammed. He said that he was going to meet with Mr Mohammed's cousin and went to his house. There was a person there who said there was a drug dealer who owed him some money and that he wanted to go to collect his money. All the boys left the house and asked him whether he wanted to go with them. He said that he jumped into the car with a driver who he had never seen before and whose name he did not know. He said that his mate, Mr Mohammed, parked the car in the front and he sat with the driver in the other car. 36Mr Maraache said that he sat there for between four and four and a half minutes. The first conversation with the driver was when he asked the driver whether he had a cigarette, because he left his pack at Mr Mohammed's cousin's house. There was only one cigarette in the driver's pack and Mr Maraache took the cigarette and smoked it. He told the driver that he would give the driver his full pack that he had left at the other house and the driver said that was all right. 37While Mr Maraache was having the cigarette, he was laughing. The driver asked him what was wrong and he said that he was just laughing at what the boys were doing. They were all jumping and all of a sudden he saw the boys kicking the door and going in and he asked what they were doing. All of a sudden, the boys were running and his mate Benny jumped in the car. The police arrived and pulled over in front of the other car, saying to get out of the car. The driver of the car containing Mr Maraache started reversing. Mr Maraache asked what he was doing, told him to relax and to stop, asked him what he was worried about and told him not to reverse. The driver told Mr Maraache to relax and that he knew what he was doing. Mr Maraache asked the driver where he was going, told him to stop and asked him whether he did not see the police, and again told him to stop.

Evidence of Mr Maraache at Trial 38Mr Maraache gave evidence at the trial. He said that he was at Mr Tamapua's house at Claymore when he received a telephone call from his girlfriend asking him to bring her some food. At that time, Mr Mohammed arrived at the house. Mr Maraache asked Mr Mohammed if he could take him. They went in Mr Mohammed's car and went back to Mr Tamapua's house at about 9:30pm. He said that when he arrived back he had a shower. There were several people at the house. Somebody said that they were going to watch a football game and asked Mr Maraache whether he wanted to go to see Mr Mohammed's cousin. He agreed to go with them to Mr Mohammed's cousin's place. Mr Maraache went with Mr Mohammed. There were several of them in Mr Mohammed's car and it took them about 5 minutes to get there. 39Mr Maraache's evidence was that, at some stage, another person, who was called Ricky, arrived at the house and there was a conversation among some of them there. Ricky told the boys that there was someone that owed him money and he wanted to get his money. Mr Maraache thought Ricky was showing off, or making it up or lying. Mr Maraache said he went outside to have a cigarette and when he came back, BT asked him if he wanted to come. They all went outside and Mr Maraache agreed to go with them. He asked "why are we going to go with them?" and was told they were "just going up the road". He then said "[a]ll right, I'll come" and got into Simon King's car. He said that he had not known Mr King before that evening. 40Mr Maraache's said in evidence that, when he jumped into Mr King's car, he did not have any knowledge of what was intended to be done at the house in St Andrews. He said that, before he got into the car with Mr King, there had not been any conversation with any of the boys who were planning a home invasion. When they left the house, he understood that they were going to somebody's house for Ricky to get his money. Mr Maraache was in Mr King's car and he saw Mr Mohammed's car leaving at about the same time with some of the other boys in the car, who had been at the house. They drove for about 2 minutes. When Mr King's car stopped, the person in the back seat left the car. Mr Mohammed's car was parked in front of Mr King's car, in which Mr Maraache was sitting. He said that the people who got out of Mr Mohammed's car went and knocked on the door of Lydia's house. He saw Ricky knocking on the door. 41Mr Maraache said that, next, he turned to Mr King and asked him about a cigarette. Mr King said that he only had one cigarette left and Mr Maraache promised him that he would get some when they went back to Mr Mohammed's cousin's house, where he left his packet of cigarettes. While Mr Maraache was having his cigarette, he looked towards where the people were going, knocking on the door. He saw his friends jumping all over the place and started laughing. Mr King asked him why he was laughing and he said that he replied "look at them they're jumping all over the place". Mr Maraache said that, at that time, he did not have any idea that the people going to the house were in the process of committing a home invasion. 42Mr Maraache then said that after he saw them jumping around, he saw the door open and somebody put a head out but he could not tell who it was. He said Ricky was at the front door and he could see that they pushed the door and he saw a women screaming in the house. He said he was stunned by what was going on. He saw them all push in and he heard the woman scream for a short period, and after that the screaming stopped. After a minute, they left the house and came outside running. 43Mr Maraache said that BT got into Mr King's car, in which Mr Maraache was sitting, and sat in the back passenger seat. When the people ran out of the house, Mr King turned on the car and began reversing. While he was reversing, Mr Maraache saw a police car coming from the back, blocking Mr Mohammed's car. He saw a police officer holding a firearm at the boys in Mr Mohammed's car and telling them to get out of the car. 44Mr King was reversing his car and Mr Maraache asked him what he was doing and why he did not stop. Mr Maraache told him to stop a couple of times. He asked him why he was running or what he was doing. Mr Maraache said that it took him a couple of minutes to convince Mr King to stop and pull over to the side, because it was raining and they were all going to die if he kept going at that speed. Mr King said a couple of times that he knew what he was doing. He eventually stopped and the police arrived and they were arrested. 45Mr Maraache said that at no time during the evening did he seek to provide any assistance or guidance or allocate roles to any of the persons involved in the commission of the home invasion. He said that he did not see anybody with a firearm. He said that he did not see anyone put a firearm in the boot of the vehicle in which he was sitting. 46Mr Maraache said in cross-examination that the telephone conversations related to meeting some girlfriends and they used code words to hide the meeting from their wives. He said that the reference in the conversation to Talal calling him for a job was an Arabic reference for talking about a girl. However, he accepted that the word "Talal" was an Arabic first name. Mr Maraache said that the reference during the telephone conversation to "two kilos of ice" was a reference to the fact that when he and the person he was speaking to first saw the two girls, they were both smoking ice. He said that the reference had nothing to do with drugs, apart from the fact that the girls had been smoking it. He said that "Frank" was a reference to a restaurant in Liverpool called "The Frank". However, he could not provide any specific details as to the location of the restaurant. 47Mr Maraache also said in cross-examination that he did not recollect sending the SMS message. He said that, if he sent it, it was a reference to going to pick up some drugs for Mr Tamapua, who was on parole and who was not allowed to take drugs. He said that that message had nothing to do with a home invasion.

Addresses and Summing Up 48The defence case at the trial was that Mr Maraache had no involvement whatsoever with the offence charged and that the witnesses called by the Crown were not telling the truth. The case was that the witnesses were endeavouring to implicate him falsely, so as to minimise their criminality and justify the various sentencing discounts awarded by reason of their pleas of guilty to the offence with which they were charged. 49In his address to the jury, counsel for Mr Maraache emphasised that it was not for him to persuade them that it was more likely that Mr Maraache was telling the truth. He said that it was not a case of choosing between two competing versions of the relevant events. Rather, the onus of proof rested at all times on the Crown. Counsel for Mr Maraache said that the fact that Mr Maraache participated in an interview and the fact that he chose to give evidence did not shift the burden of proof onto him and that the Crown at all times must prove its case beyond reasonable doubt. 50Counsel for Mr Maraache said that another way of giving Mr Maraache the benefit of the doubt was that, if the jury believed that it was reasonably possible that a group of young men decided, for whatever reasons and perhaps for their own individual benefit, to point the finger at an innocent man because they believed that it was in their individual interests to do so, despite his innocence, then the jury would find Mr Maraache not guilty. Counsel for Mr Maraache said that there was only one civilian witness who had not been proven to be a liar and that was Mr Maraache. Counsel for Mr Maraache said that, when the police arrested Mr Maraache he had his right to silence, but he chose to speak to the police and participate in an interview and then decided to give evidence before the jury. Counsel for Mr Maraache asked at what point in Mr Maraache's evidence did the Crown prove that he had told a proven lie. Counsel for Mr Maraache submitted to the jury that the bottom line was that, despite rigorous cross-examination by the Crown, Mr Maraache had not been proved in any respect to be a deliberate liar, compared with the other witnesses. 51In the Crown's address to the jury, reference was made to the telephone recordings, particularly of a conversation between Mr Maraache and Mr Tamapua in which Mr Maraache said that "Talal" had called him for the job, "the 2 kilos of ice". The Crown asserted that not only did Mr Maraache know about the job involving "2 kilos of ice" but that the telephone conversation strongly suggested that he needed to organise things with Mr Tamapua in order to do it. The Crown's position was that the reference to "2 kilos of ice" was absolutely critical and, in fact, was probably the most important piece of evidence in the whole trial. 52The Crown then referred to the evidence of BJ that, when he was shown the firearm, they were talking about "the house, the ice dealer and, yeah, at the time we were told that there was 2 kilos of ice". The Crown asserted that it could not possibly be a coincidence or a fabrication for BJ to have said that, in circumstances where Mr Maraache spoke to Mr Tamapua on the telephone about "a job involving 2 kilos of ice", BJ was not a party to that telephone conversation between Mr Maraache and Mr Tamapua and BJ had not been shown that phone material, which was restricted, before giving his evidence. The Crown said that the only way that BJ could possibly have known anything about the job involving "2 kilos of ice" is that that is what he was told to expect at Lydia's house. The Crown referred to BJ's evidence that Mr Maraache was one of the organisers and the fact that the words "2 kilos of ice" were the very words used by the accused in the telephone conversation a few hours earlier. 53Counsel for Mr Maraache emphasised that "a very central point" made by the Crown was a conversation earlier in the day about "2 kilos of ice". He referred to the telephone intercepts, in which mention was made of "2 kilos of ice", and pointed out that Ms Pavicin gave evidence that during the home invasion there was no mention of drugs by anyone, let alone "2 kilos of ice". He said that, if it had been the central purpose and goal of the home invasion to obtain drugs, one would expect that somebody would have said to Ms Pavicin that they knew that she had "2 kilos of ice" and that it is peculiar that there was no mention at all. 54The trial judge quite properly gave a warning to the jury that the facts of the case are for the jury and the jury alone, because the jury are the sole judges of the facts. His Honour said that he had nothing to do with the facts or the jury's decision in relation to them. He emphasised that he had nothing to do with what evidence was to be accepted by the jury as being truthful or what evidence was to be rejected as being untruthful. He told the jury that he had nothing to do with what weight the jury might give to any one particular part of the evidence and what inferences the jury should draw from the evidence. 55The trial judge also emphasised that he did not propose to try to persuade the jury one way or the other and that that was not his job. His Honour pointed out that, when he came to a particular issue, he may suggest that there was no real dispute as to that issue. However, his Honour said that the jury could reject any view that he expressed, if it did not accord with their own independent assessment of the evidence. 56The trial judge told the jury that they were bound to accept the principles of law that he gave them and were bound to apply those principles to the facts of the case as the jury found the facts to be. His Honour told them that it was for them to assess the various witnesses and to decide whether they were telling the truth. His Honour told the jury that they had heard addresses from counsel for the Crown and counsel for Mr Maraache and that they would consider the submissions that had been made in the addresses and give them such weight as the jury thought fit. His Honour said that he did not propose to try to persuade the jury one way or the other and that that was not his job. His Honour said that counsel had referred the jury to those parts of the evidence that they considered important and that it was necessary for the jury, in deliberating, to consider all of the evidence and not only the evidence to which his Honour may refer them or to which they might have been referred by counsel. 57The trial judge directed the jury that a person charged with a criminal offence is presumed to be innocent unless and until the Crown persuades the jury that the person is guilty beyond reasonable doubt. His Honour said that the fact that Mr Maraache had given evidence before the jury did not alter the burden of proof and that Mr Maraache did not have to prove that his version was true. Rather, the Crown must satisfy the jury that the account given by Mr Maraache should not be accepted as a version of events that could reasonably be true. 58The trial judge told the jury that Mr Maraache had given evidence in answer to the case led by the Crown and that that evidence was essentially consistent with what he had said in the electronically recorded interview made on the morning after the home invasion. His Honour said that, if, having considered that evidence and the submissions of both counsel in relation to it, the jury accepted Mr Maraache's evidence then they must acquit him and bring in a verdict of not guilty. His Honour said that there was no obligation on Mr Maraache to persuade the jury to accept his evidence. His Honour said that the jury did not have to believe that Mr Maraache was telling the truth before he was entitled to be acquitted. His Honour said that if, at the end of the jury's deliberations, the jury found that there was a reasonable possibility that the version presented by the defence were true, then the Crown would have failed to persuade the jury of Mr Maraache's guilt beyond reasonable doubt. 59Later, the trial judge said the offence consisted of seven elements but that it was not in issue that elements 2 - 7 had occurred. Rather, the essential argument in the case was whether the accused had participated in a joint criminal enterprise involving the armed home invasion and the Crown had to prove beyond reasonable doubt the accused's participation in a joint criminal enterprise. 60Later, the trial judge said "I remind you that it is the Crown case that not merely was [Mr Maraache] present in one of the cars used as a getaway during the armed home invasion but also that [Mr Maraache] actively was involved in planning and arranging this home invasion". That statement by the trial judge outlining the Crown case also implicitly outlines the defence case. The essential proposition of the defence case was that Mr Maraache was merely present in a getaway car used in an armed home invasion. Put another way, the defence case was simply the negative of the Crown case: that he was not actively involved in planning and arranging the home invasion. 61The trial judge pointed out that the Crown relied on evidence from the other witnesses who were involved in the crime. His Honour referred to a direction about drawing inferences and said that one could speculate as to what Mr Maraache may have been doing in the getaway car, if the jury did not accept what Mr Maraache himself said about it. Thus, his Honour said, the jury could speculate, for example, that the role of Mr Maraache may have been to keep control of Mr King so as to make sure that he did not drive off. However, his Honour said, that was speculation. His Honour said that the jury "can draw inferences but there are other inferences that can be drawn". 62The trial judge then said "the Crown case is based not merely on his presence in one of the getaway cars but in [sic] actually planning part, if not all, of this joint criminal enterprise". Again, in putting the Crown case in that way, his Honour was also stating the essential positive proposition of the defence case: that Mr Maraache was merely present in one of the getaway cars and had nothing to do with the planning of the offence. The additional proposition was the Crown's contention that Mr Maraache had an active planning role. Mr Maraache, of course, contended for the negative version of that proposition, that he had no such role. His Honour said that the jury needed to have regard to the evidence given by the other witnesses to establish the role of Mr Maraache in the joint criminal enterprise. 63Later, the trial judge returned to the issue of participation in the crime, as opposed to mere presence at the scene, in relation to the sixth element of the offence: that the offenders were in the company of each other. His Honour said that it was not sufficient that another person merely be present when a crime is committed. Instead, that other person had to participate in the offence, or at least encourage or assist the person who did carry out the offence. His Honour stated that the jury would be comfortably satisfied that at least AJS, BT, JT, Mr King and QJ were in company. Then, his Honour posed the question for the jury: "The question for you is, was the accused part of the joint criminal enterprise?". It is significant that the defence case on the point was simply the negative of the Crown case: that Mr Maraache was not part of the joint criminal enterprise and did not plan it. 64When the summing up was complete, the jury had available to them a transcript of the interview of Mr Maraache by the police. They had also seen a video of that interview. The trial judge also directed that the jury be informed that they were entitled to ask to have the video of the interview and the voice intercepts played and replayed as often as they liked, though it would require the jury to come back into the courtroom to do so. 65At no stage did counsel for Mr Maraache object or make any complaint about the direction given by the trial judge to the jury. At no stage was any application made for a further direction to be given to the jury concerning the case advanced at the trial on behalf of Mr Maraache.

Relevant Principles 66Under s 6(1) of the Criminal Appeal Act 1912, the Court may, notwithstanding that it is of the opinion that a point raised by an appeal might be decided in favour of the appellant, dismiss the appeal, if it considers that no substantial miscarriage of justice has actually occurred. Because of the fundamental nature of the requirement that, in a summing up in a jury trial, the defence case be put to the jury, if the defence case is not sufficiently put to the jury not only will it be appropriate to grant leave under rule 4 of the Criminal Appeal Rules for that omission to be a ground of appeal, notwithstanding the absence of objection by the party seeking to appeal, it may also be inappropriate to apply the proviso to s 6(1) of the Criminal Appeal Act by finding that there is not a substantial miscarriage of justice (El-Jalkh v R [2009] NSWCCA 139 at [153]-[154] (El-Jalkh)). 67The Crown accepts that, if the Court comes to the view that the defence case was not sufficiently put to the jury, it would find that Mr Maraache did not have a fair trial. Nevertheless, the Crown contends that the fact that no complaint was made on behalf of Mr Maraache at the trial augurs against making such a finding, even if that lack of complaint be irrelevant as to whether leave should be granted under rule 4. 68The fundamental task of a trial judge is to ensure a fair trial. That involves not only instructing the jury about the law but also extends to identifying the issues, relating the law to those issues and assisting the jury to understand how it is that the accused may be guilty of the offence charged on the indictment. It also requires that the trial judge explain why the accused asserts that his guilt has not been established beyond reasonable doubt and to give any directions that call for a particular explanation or caution. The jury must be given to understand the case that the defence has attempted to make out, including any matter that is properly open that the jury might find for the accused (R v Meher [2004] NSWCCA 355 at [76] (Meher)). 69Even if a trial judge expresses opinions on matters of fact that are favourable to the prosecution case, it does not necessarily follow that the summing up is unbalanced. However, while the opinions of the trial judge on issues of fact can be of great assistance to the jury, it is very important that the jury be told that they are not bound by the opinions of the trial judge and that they are not relieved of the responsibility for forming their own views (Broadhurst v R [1964] AC 441 at 464). 70An accused is entitled to have a trial according to law. A trial according to law includes, as an essential prerequisite, that the trial judge has put the defence of the accused to the jury fairly, cogently and with clarity. The weaker the defence, the more essential it is for the defence, such as it is, to be put to the jury, so that the jury can consider it in the light of the Crown's case and evaluate it, as part of their assessment, together with the Crown evidence, to see whether the Crown has discharged its onus of proof. It is not sufficient for a trial judge simply to say to the jury, in effect, you have heard what has been said on behalf of an accused by his counsel. The trial judge must lend the weight of the judge's judicial position and authority to the case for the accused being put before the jury (Meher at [84]). 71Even if the prosecution case is a potentially strong one, there may nevertheless be critical issues for the jury to decide, which go directly to the proof of the charges made against an accused. It is important that there be a balance in the summing up and that the defence case be properly put to the jury. Even where the trial judge carefully and correctly identifies the issues and gives impeccable directions on the law, including directions that go to the onus and standard of proof and to the elements of the offences charged, a summing up may nevertheless be unbalanced, such that a miscarriage of justice occurs. If a summing up is heavily directed in favour of the Crown, and little attention is given to the defence case, there may be a miscarriage of justice (Meher at [147]-[151]). 72Where the single issue in a trial is whether the Crown had proved that the accused was party to a conspiracy that had admittedly come into existence, and the trial judge identifies that issue for the jury and directs the jury that it would not be sufficient for the Crown to prove merely that the accused had acquired knowledge of the existence of the conspiracy, the trial judge may nevertheless fail to perform the essential function of putting the defence case on the issue of whether the Crown had proved that the accused was a party to a conspiracy. The trial judge must do more, by way of putting the defence case, than tell the jury that counsel for the accused had made submissions that the jury should not accept the Crown's evidence, that the objective evidence was capable of an interpretation other than that urged by the Crown and that the jury should find that the accused's evidence was reasonably possibly true. The trial judge should refer to specific parts of the oral evidence, or of recorded conversations, making such references to the evidence as would be required to enable the jury properly to understand the defence case (El-Jalkh at [148] - [149]). A trial judge is not relieved of the requirement of putting matters to the jury because they have already been put by defence counsel or because they might have seemed obvious or because they might have seemed to difficult to accept (El-Jalkh at [152]). 73In a criminal trial, a trial judge is bound to direct the jury as to any principle of law or rule of practice applicable to the case, and a misdirection or non-direction on such a matter will usually mean that the trial has miscarried. However, matters of fact and the arguments in relation to them are in a different category. A trial judge is not bound to discuss all the evidence or to analyse all the conflicts in the evidence and, by itself, the failure of a trial judge to do so does not mean that there has been any miscarriage of justice. Nevertheless, the requirement of fairness means, ordinarily, that the respective cases for the prosecution and the accused must be accurately and fairly put to the jury. However, that requirement does not oblige the trial judge to put to the jury every argument put forward for the accused. 74Whether the trial judge is bound to refer to an evidentiary matter or argument ultimately depends upon whether a reference to that matter or argument is necessary to ensure that the jurors have sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence. If, having regard to the complexity of the factual issues for the jury to determine, the trial judge has not put the defence case adequately, such that the jury may misunderstand or not understand it, then the jury will not be in a position where they can properly act as judges of the facts and thus there will be a miscarriage of justice. The idea of a summing up is to present for the jury the issues of fact that they have to determine (R v Zorad (1990) 19 NSWLR 91 at 105). Consequently, the way in which the case was conducted and the inherent complexity of the factual issues to be determined necessarily bear on the extent to which the judge is bound to comment on, or discuss, the evidence. Discussion or comment that is justified or required in one case may be neither required nor justified when a similar case is conducted in a different way (Domican v R [1992] HCA 13; (1992) 173 CLR 555 at 560-561).

The Question on the Appeal 75Mr Maraache contends that the trial judge failed to put his case adequately to the jury and that that failure deprived him of a chance of acquittal. He says that it does not matter that counsel for Mr Maraache had just finished his address to the jury or that his version of the circumstances was simple to understand. What matters, he says, is that the failure of the trial judge to refer to his account resulted in his not receiving a fair trial. 76Mr Maraache also points to the example given by the trial judge concerning the drawing of inferences. He says that the example given by his Honour was an argument in support of the Crown case and was not put by the Crown. 77An essential consideration is whether there was a reasonable possibility that the jury was misled by the summing up in a significant way or that the jury might not have returned a verdict of guilty had his Honour directed their attention to the version of events advanced by Mr Maraache. The question is whether there was a real risk that any failure to do so resulted in a miscarriage of justice. 78While it was necessary for the trial judge to remind the jury of the case that Mr Maraache sought to make, it was not necessary that his Honour refer to each of the various points sought to be made on behalf of Mr Maraache. It is no part of the function of a trial judge to repeat all of the arguments and submissions advanced by counsel, unless there are particular parts of the evidence that require a warning by the trial judge or the assistance of the trial judge, if the jury is to have a proper understanding of dangers, difficulties and limitations inherent in the evidence. 79The defence offered by Mr Maraache in the trial was simple and straightforward. He denied that he had taken part in any organisation or planning in relation to the offence. He denied that he knew that the offence was to be committed. The jury saw the electronic record of his interview by the police and a transcript of the interview was available to them. There is no prospect that the jury was under any misapprehension as to the defence advanced by Mr Maraache at the trial. Mr Maraache's case was that he was sitting in the getaway car but did not know about the home invasion and was not involved in planning it. The Crown case was that he was sitting in the getaway car and did know about the home invasion and was involved in planning it. The essential factual matter for the jury to determine was simple and discrete. The Crown case and the defence case were two sides of the same coin and the jury must have understood that to be the factual question for them to decide. 80The Crown relied on the evidence of co-offenders and CJB. Their evidence was that Mr Maraache planned the offence and organised the roles that each would play. There were two competing versions. The real issue at the trial was credibility. The jury received fair and appropriate directions as to the care with which they were to assess the Crown witnesses. 81No complaint was made at the trial about the directions given to the jury. No complaint was made on the appeal about the directions, save for the assertion that his Honour did not adequately put Mr Maraache's defence. His Honour referred to the fact that the evidence given by Mr Maraache was consistent with the statements made in his interview by the police shortly after the offence. 82It may be that a reasonable conclusion is that there can have been no real prospect that the jury did not understand the stance adopted by Mr Maraache. Counsel for Mr Maraache, who finished addressing the jury shortly before his Honour began summing up, emphasised that Mr Maraache was an innocent bystander. The summing up was not a lengthy one. 83However, the requirement for the case of the accused to be put to the jury by the trial judge is a fundamental requirement of a fair trial. The trial judge did not tell the jury that the defence advanced by Mr Maraache was that he did not know about the proposed home invasion but believed that they were visiting Lydia's house to collect money that was owing to one of the others. The jury may have disbelieved that version of events. However, it was incumbent upon the trial judge to tell the jury that that was Mr Maraache's answer to the charges made against him. 84On the hearing of the appeal, the Crown did not advance contentions that, notwithstanding the failure on the part of the trial judge to state the defence case to the jury, there was nevertheless a fair trial. As I have indicated, the Crown conceded that, if the Court be of the view that the defence case was not sufficiently put the jury, it would conclude that Mr Maraache did not have a fair trial. The Crown also accepted that, if the defence case were not sufficiently put to the jury, the lack of complaint should not trigger the operation of r 4 of the Criminal Appeal Rules and that leave to appeal should be granted.

Conclusion 85It follows that leave to appeal should be granted. The appeal should be allowed. The convicted should be quashed and a new trial ordered. 86FULLERTON and SCHMIDT JJ: We have had the advantage of reading the draft judgment of Emmett JA and agree with the orders his Honour proposes. 87We gratefully adopt his Honour's analysis of the evidence and the issues in dispute at trial, and his Honour's summary of the course of proceedings at trial, but would wish to add the following references to the evidence and the following reasons for joining with his Honour in the orders he proposes. 88The applicant's counsel accepted that after the jury had retired to consider their verdict, there was no application by defence counsel that the jury be referred to the evidence relied upon by the applicant on the single issue the trial judge had identified for their consideration, namely, whether the Crown had proved the applicant's participation in the joint criminal enterprise to commit the offence charged on the indictment. Nor did the trial judge summarise or even refer to defence counsel's closing submissions concerning that evidence. Counsel also accepted that in these circumstances leave under Rule 4 of the Criminal Appeal Rules was required. 89The Crown submitted that the approach of defence counsel might tend to suggest that in the atmosphere of the trial there was no perceived unfairness by reason of his Honour having made no reference to the applicant's evidence or his counsel's arguments about the evidence. Counsel for the applicant submitted that the trial judge's obligation to put the defence case was a mainstay of a fair trial regardless of any request for redirections by trial counsel, and that the failure of the trial judge in this case to put the case fairly, or at all, meant the conviction should be quashed and a retrial ordered. 90The Crown accepted that if after reviewing the summing up, including the content and length of counsel's addresses, we were to conclude that the trial judge had not sufficiently put the applicant's case and, for that reason, there was a real risk that a miscarriage of justice has been occasioned, Rule 4 would have no application. She also accepted that were we of that view it would be inappropriate that the proviso to s 6(1) of the Criminal Appeal Act be applied. 91The applicant submitted that the following features of the defence case, drawn from both the applicant's record of interview with police on his arrest and the evidence he gave at trial, which was largely coincident with that account, should have been the subject of direction by the trial judge. 92During the interview with police the applicant stated: (a) While visiting a friend's house, one of the men who was present, a man he did not know particularly well, asked them all to accompany him to a drug dealer's house because the man was owed some money. The applicant agreed to go. (b) He was a passenger in a car driven by a man he did not know. He remained in the car while the other men, excluding the driver, got out. He shared a cigarette with the driver for several minutes. (c) He saw the men kicking in the door of the house and then entering the house after which they ran back to the car. BT (one of the men who had entered the house) got into the car and the driver reversed down the road and left. (d) He asked the driver to stop when the police appeared but the driver told him to relax as he knew what he was doing. (e) He had no knowledge that the home invasion was to occur and no knowledge of what happened when the men went into the house. 93His evidence at trial was: (a) He did not know that there was a conversation recorded on his telephone about someone procuring guns the day before the home invasion. He said that he had given the phone to someone to use as they had no telephone credit. Similarly, he had no knowledge of who might have sent a text message from his telephone the afternoon before the home invasion saying "Kevin, we need your car, is it okay with you bro, we got a drug dealer tonight, please let me know". (b) An intercepted telephone call, relied upon by the Crown as a conversation concerning the home invasion by the reference to "two kilos of ice" which was expected to be in the house, was in fact a code the applicant used when arranging to meet some women to disguise the meeting from his wife. (c) On the afternoon of 26 May 2010 he was invited to a friend's house to watch a football game. (d) He had no knowledge of and did not see a rifle or a taser whilst at the friend's house. Whilst there he was invited by a man named Ricky to go to a drug dealer's house so that Ricky could pick up some money he was owed. He originally refused to go, but when everybody else decided to go he changed his mind. (e) He did not know the home invasion was planned and was surprised when he saw the men forcing their way into the house. 94The summing up extended over 20 pages. Apart from a reference in general terms to the applicant's defence, when the trial judge directed the jury as to the elements of the offence, and aside from directions given in standard terms that the jury were the sole judges of the facts; that they had to assess what evidence they accepted as being truthful and what evidence should be rejected as being untruthful; that any views which he might express upon questions of fact were to be ignored; and that they should consider all of the evidence, the Crown was not able to point to any part of the summing up in which his Honour had put the accused's case to the jury. The only reference his Honour made to the evidence in the defence case was as follows: The accused has given evidence in answer to the case led by the Crown. It is, essentially, consistent with what he said in the electronically recorded interview made on the morning after the home invasion. He made no mention at all of the content of either of the closing addresses of counsel. 95The trial judge reminded the jury of the Crown case in the context of directing them as to the constituent elements of the offence. Then, after warning the jury about the potential unreliability of the evidence given by each of the co-offenders (about which no exception is taken), and before asking the jury to retire to consider their verdict, his Honour said: Ladies and gentlemen, I can sum up the facts to you but I would keep you here for probably the rest of the day and part of tomorrow. Remember that what you are concerned about is whether the Crown has established beyond a reasonable doubt each of the 7 essential elements in the case. The Crown does not have to prove beyond reasonable doubt who went in what car for example, or who did what at Lydia P Chen's house or whether Benny did what Lydia P Chin said he did. All you have to decide beyond a reasonable doubt is whether the accused is guilty or not guilty of the crime and you must consider whether the Crown has established beyond a reasonable doubt each of the 7 principal elements. 96On the appeal, the Crown submitted that it could not be gainsaid that either the brevity with which his Honour dealt with the evidence in the defence case, or the fact that he did not refer to the content of closing arguments of counsel, undermined the adequacy of the summing up which was in all other respects well structured and concise and which identified, with precision and clarity, the issue for the jury to resolve. She submitted that the applicant's case was simple and that the jury could have been under no misapprehension as to the basis upon which he defended the charge or the evidence upon which he relied in doing so. She submitted that in these circumstances there was no obligation on the trial judge to refer to the evidence, or even to analyse the conflicts in the evidence. She also submitted that when the summing up was read as a whole any risk that the deficiencies relied upon by the applicant were productive of such unfairness as to have resulted in a miscarriage of justice, in the sense that the jury might not have returned a verdict of guilty or that he lost a real chance of an acquittal (TKWJ v R [2002] HCA 46; 212 CLR 124), was not made out. The Crown pointed out that both counsel had addressed the jury at length and that the trial judge reminded the jury that it was necessary for the jury to consider all the evidence, not only the evidence referred to by counsel and the evidence to which he might later refer. 97The applicant's counsel submitted, and in our view with considerable force, that the complaint about the adequacy of a trial judge's directions concerning the defence case under consideration in El-Jalkh v R [2009] NSWCCA 139 (being one of the grounds upon which the conviction was quashed and a new trial ordered), were analogous to this case. El-Jalkh was also described as a "single issue case". The appellant's counsel in that case submitted to the jury both in opening and closing that there was no dispute that there was a conspiracy to import drugs, the only question was whether the Crown could prove that the appellant was party to that conspiracy. In the present case, it was not in issue that there had been a home invasion, the question was whether the applicant participated in the joint criminal enterprise which had that as its objective. This, in turn, depended on the jury accepting the evidence of the co-offenders, to the effect that the applicant had planned the home invasion and organised the roles each would play, (including that he would stay outside in the car) and rejecting his denial of any such involvement. 98In El-Jalkh the trial judge did not summarise the appellant's evidence and made only a passing reference to the recorded conversations relied upon by the Crown, and only then in the context of counsel's submissions. Although James J considered (at [139]-[144]) that, having regard to the operation of s 161 of the Criminal Procedure Act, it was open to the trial judge to form the view that a general summary of the evidence of the recorded conversations was not necessary, he went on to hold at [151] that the trial judge should have put to the jury at least some of the explanations proffered by the appellant about those conversations, in order to discharge his obligation to make sufficient references to the evidence to enable the jury to properly understand the defence case in the context of the issue or issues in the trial. 99In the present case, and despite what might be thought to be an implausible explanation by the applicant for a number of incriminating telephone conversations, in our view the trial judge was obliged to remind the jury of what the applicant claimed was the real explanation for his reference to "two kilos of ice" (see [152] of El-Jalkh) and that he was not the person talking about having given his phone to someone else to use. 100In El-Jalkh, James J went on to observe at [148] that what the trial judge did by way of putting the defence case to the jury was not refer to any specific parts of the oral evidence, but rather to remind them that the appellant's counsel had submitted that they should not accept the evidence of a Crown witness; that the objective evidence was capable of an interpretation other than that urged by the Crown; and, further, that the jury should find the appellant's evidence was reasonably possibly true. His Honour then said at [149]: In my opinion, the trial judge failed to perform the essential function of putting the defence case on the issue of whether the Crown had proved that the appellant was a party to the conspiracy, including making such references to the evidence as would be required to enable the jury properly to understand the defence case. Even though defence counsel had completed his closing address only on the morning of the day on which the trial judge gave most of the summing-up, the trial judge was required, on his own authority as the trial judge, to put the principal arguments for the accused. The references in the summing-up to the arguments for the accused and to the evidence need not have been lengthy or discursive. 101In R v Meher [2004] NSWCCA 355 Wood CJ at CL referred with approval to the judgment of Isaacs J in R v Tomazos (Court of Criminal Appeal, 6 August 1979, unreported) where his Honour said: ... A trial according to law includes as an essential prerequisite that the trial judge has put fairly, cogently and with clarity to the jury the accused's defence. The weaker the defence the more essential it is for his defence such as it is to be put to the jury so that they can consider it in the light of the Crown case and evaluate it as part of their assessment together with the Crown evidence to see whether the Crown has discharged its onus of proof. It can properly be said that the accused fairly lost a chance of acquittal because his case was never put to the jury by the trial judge. It is completely insufficient for a trial judge simply to say to the jury in effect, "Well, you have heard all that has been said on behalf of the accused by his counsel; it is unnecessary for me to say anything more". The trial judge must lend the weight of his judicial position and authority to putting before the jury himself the case for the accused. 102We are of the opinion that even if it might fairly be said that the applicant's case was not compelling, he was entitled to have the trial judge refer the jury to how his defence was advanced in the context of the evidence upon which he relied (particularly since the Crown case and the evidence on which the Crown relied was addressed in the summing up), and that a miscarriage of justice has been occasioned by his failure to do so.

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