Safi v R

Judgment

1. SIMPSON AJA: On 19 May 2014 the appellant was arraigned in the Supreme Court on an indictment that charged him with the murder, on 25 July 2010, of Mohammed Ayman Abouhait. He entered a plea of not guilty, and a jury trial proceeded. The jury returned a verdict of guilty on 5 September 2014. The appellant was sentenced to imprisonment for 22 years and 8 months, commencing on 30 October 2012 (the date on which he was arrested and charged) with a non-parole period of 17 years, which will expire on 29 October 2029. The Crown case was that the murder was committed in the course of a joint criminal enterprise, to which the appellant and his brother, Mitchell Johnson, were parties.
2. The appellant now appeals against the conviction. He has not sought leave to appeal against the sentence imposed. The appellant has pleaded three grounds of appeal, all of which concern the directions given by the trial judge with respect to the issue of joint criminal enterprise.
3. The Notice of Appeal was not filed until 31 October 2017. Accordingly, the appellant seeks an extension of time in which to appeal.

The Crown case

1. A precis of the case the Crown proposed to make at trial may conveniently be drawn from the manner in which it was opened to the jury at the commencement of the trial and then presented. It may be summarised as follows:-
2. In July 2010 the deceased, Mr Abouhait, was unknown to the appellant. Mr Abouhait was significantly engaged in criminal activity, involving drugs, car theft and violence. The appellant, who had previously been a car dealer, had a practice of obtaining and repairing motor vehicles for the purpose of sale. On 16 June 2010 an incident occurred involving Mr Abouhait and others offering to sell a vehicle and other items to the appellant, an offer that he refused, and which he reported to police. Subsequently, Mr Abouhait held a gun to the appellant's head and stole a gold chain from him. Mr Abouhait was arrested on 25 July 2010, after being seen attempting to break into the appellant's house. He was released to bail on the same day, after the appellant told police that he did not wish charges to be preferred, and that he would deal with the incident in his own way. The appellant told a neighbour who had reported the break and enter that he had not pressed charges and that he would "fix him [himself]".
3. The appellant subsequently told his girlfriend and her twin sister that he (or they) had bashed Mr Abouhait.
4. Mr Abouhait was not heard from or seen alive after 25 July 2010. It was the Crown case that he was killed after 4:35 pm on that day when his mobile phone was last used at 4:34 pm to contact the appellant in a voice call from a cell tower proximate to the appellant's home.
5. The appellant's mobile phone had been used to contact the deceased on twelve occasions during that afternoon and was diverted to voicemail on each occasion. The last voicemail message was placed by him at 3:53 pm. Thereafter, two voice calls of less than a minute's duration were made to the deceased's phone at 4:04 pm and 4:16 pm respectively, followed by a voice call to the applicant's brother at 4:21 pm. After placing the call to the deceased at 4:34 pm, the appellant contacted his brother at 4:35 pm. The appellant's phone was not used again until he placed a call to the deceased's phone at 9:15 pm that evening.
6. Skeletal remains of his body were found in bushland in March 2012. Owing to the state of decomposition, no cause of death could be determined.
7. Except for the evidence of conversations or statements attributed to the appellant, tendered by the Crown as admissions, the Crown case was circumstantial. As indicated earlier, the Crown case was that Mr Abouhait was murdered, either by the appellant or by his brother Mitchell Johnson, in the execution of a joint criminal enterprise. The Crown could not assert, with any degree of confidence, which of the two brothers it claimed had done whatever act had caused the death. Mitchell Johnson was also charged, but, for reasons that are not apparent, his trial was separated from that of the appellant.

Relevant legal principles

1. It is convenient to begin with an exposition of the legal concepts relevant to the issues raised on the appeal.

Crimes Act 1900, s 18

1. Section 18(1)(a) of the Crimes Act 1900 is in the following terms (with emphasis on those parts that are significant for the purposes of the appeal): "18(1)(a) Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years."
2. It may here be flagged that, for present purposes, what is important is that the mental element necessary to prove murder is established by proof that the act causing death was committed with the intention of killing or causing grievous bodily harm. Subject to the next legal principle to be discussed, it is essential that the Crown prove that the person accused did the act causing death with either of those intentions.
3. The second legal concept it is necessary to understand is that of joint criminal enterprise. The concept of joint criminal enterprise is applicable to crime generally. Notwithstanding the terms of s 18, an accused person may be held liable for murder where the act causing death is the act of another, if that act is committed in the course of a joint criminal enterprise.
4. Under the doctrine of joint criminal enterprise, liability for crime arises where:

• two or more persons reach an understanding or arrangement amounting to an agreement that they will commit a crime, and
• the person accused either commits the crime agreed, or is present when the crime (that is, the crime agreed) is committed by another party to the agreement, with knowledge that it is to be or is being committed, intentionally assisting or encouraging the other person to commit the crime. If the agreed crime is committed by one or other of the parties to the agreement, all are equally guilty of the crime.

1. This outline is adapted from the prototype jury directions explaining the doctrine given by Hunt CJ at CL in R v Tangye (1997) 92 A Crim R 545 at 566-557, and approved by McHugh J in Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75 at [73].
2. The salient feature of the doctrine for present purposes is that liability attaches to a person who is not the actual perpetrator of the act of criminality where that act is the object of the agreement on which the Crown relies. To render a person liable for murder under this doctrine, it is necessary that the prosecution establish that the agreement is to do an act that is intended to kill or cause grievous bodily harm to the proposed victim.
3. By extension of the doctrine, a party to a joint criminal enterprise may be held liable for a crime committed by one participant where that crime was not the object of the agreement, but was contemplated or foreseen as a possible incident of the commission of the agreed crime: Johns (TS) v The Queen (1980) 143 CLR 108; McAuliffe v The Queen (1995) 183 CLR 108 at 114-117. This is the concept known as "extended joint criminal enterprise".

The trial

1. In the present case, the Crown relied explicitly on the doctrine of joint criminal enterprise. It did not invoke the concept of extended joint criminal enterprise. So much is to be seen from the manner in which the Crown prosecutor opened to the jury. He said: "… it is the Crown case that it was an agreement between this accused and his brother [Mitchell Johnson] to assault the deceased with the intent of either causing grievous bodily harm or to kill him." (AB239-240 (italics added))
2. It is important to reiterate that what the Crown alleged was:

• that the appellant and Mitchell Johnson agreed to assault Mr Abouhait with the intention of killing him or causing him grievous bodily harm; and
• that one or other (or possibly both) of them carried out such an assault (that is, with the relevant intention); and
• that Mr Abouhait's death was caused by that assault. Proof of those facts would render both the appellant and Mitchell Johnson guilty of murder.

1. Proof of an agreement only to assault Mr Abouhait (without proof of an intention to kill or cause grievous bodily harm) would not render the party to the agreement who did not commit the act causing death guilty of murder under the doctrine of joint criminal enterprise. That person may have become liable under the principle of extended joint criminal enterprise, but only if the Crown also proved that that person foresaw or contemplated the possibility that death or grievous bodily harm might eventuate as a consequence of the assault. The Crown did not set out to make such a case. Instead, it pinned its case firmly on the principles of joint criminal enterprise, asserting that death or grievous bodily harm was not only within the contemplation of the parties as a possibility, but was the object of the agreement.
2. The trial commenced on 19 May 2014. On 23 May, the fifth day, and at a point where the evidence was nearing conclusion, the trial judge indicated that he proposed to give written directions to the jury, which he intended to provide to the parties by email, for their consideration and comment. It may be assumed that this was done. Those directions included the following: MURDER To establish that the accused is guilty of murder it is necessary for the Crown to prove beyond reasonable doubt that: (1) a joint criminal enterprise (agreement) existed between the accused and Mitchell Johnson, which had as its object the assault of the deceased; (2) the death of the deceased was caused by a deliberate act of one of more of the participants which was committed in the course of the agreement being carried out; (3) the deliberate act was committed with either: (a) the intention of killing the deceased; or (b) the intention of inflicting grievous bodily harm upon him. (4) even though the killing of the deceased was not the subject of the agreement, the accused foresaw that it may occur; and (5) the accused was present and participating in the agreement, at least by being ready and willing to provide assistance if required.
3. The appellant did not give or call evidence. He relied instead on a statement he had made to police on 18 February 2011.
4. The Crown prosecutor then made his closing address, during the course of which he said (as recorded in the transcript): "Now what is the Crown case? Well, the Crown case is that there was an agreement between this accused and his brother Mitchell Johnson to assault the deceased with either the intent to kill him or inflict grievous bodily harm. Grievous bodily harm is very serious physical injury and that that assault caused his death. That agreement in legal terms is referred to as a joint criminal enterprise. What that is is an agreement between two or more persons to commit a criminal offence. The law says that each party to this joint criminal enterprise or agreement is responsibility (sic) for the actions of the other person in carrying out that joint criminal enterprise." (italics added)
5. Counsel for the defence then addressed.
6. On 27 May 2014 the trial judge began summing up. At the end of that day he asked counsel if there was any issue about the proposed written directions he had circulated, to which both replied in the negative. The trial judge continued with the summing up. Included in the oral directions he gave to the jury was the following: "So you must understand that the Crown is asking you, as I understand it, to infer that an agreement existed between, at least the accused and his brother, to commit an assault upon the deceased. Now it does not matter, members of the jury, whether the agreed crime is committed by only one or some of the participants in a joint criminal enterprise, or whether they all played an active part in committing that crime. All of the participants in the enterprise or agreement are equally guilty of committing the crime, regardless of the actual part that each one might play. The Crown must prove beyond reasonable doubt that the crime which was the subject of the agreement was in fact committed. The Crown case in this trial is that an agreement was reached to which this accused was a party and that the object of that agreement was that the deceased be assaulted; that is, the joint criminal enterprise or the agreement which the Crown says existed in the present case. So the Crown must prove beyond reasonable doubt that the offence of assault was committed and that the accused was a participant in the commission of that crime as part of this joint criminal enterprise. But members of the jury it may be, and the Crown alleges in this case that it is, that in carrying out this agreement to assault the deceased, an additional offence was committed and that is the offence of murder. The Crown says that although that was not the crime, that is to say that although murder was not the crime, that the accused and Mr Johnson had agreed upon, it was, nevertheless, a crime which at least some of the participants to the agreement foresaw might be committed. In that case, not only are each of the participants guilty of the offence that they agreed to commit, but any participant who foresaw the possibility of [the] commission of this additional offence of murder is also guilty of that additional offence and that is the way in which the Crown puts its case to you in this trial. The Crown says that there was an agreement between the accused and his brother and that the object of that agreement was to assault the deceased. The Crown says that in carrying out that agreement the additional offence of murder was committed, and even though that was not the crime which had been the subject of the original agreement, the Crown says that it was a crime which the accused foresaw might be committed and [thus] it is on that basis that you would find the accused guilty of the charge of murder. So members of the jury that is the nature of the joint criminal enterprise that the Crown alleges existed in this case. The Crown alleges, I will repeat, that the accused was a participant in a joint criminal enterprise to commit the offence of assault, that in the course of carrying out that joint criminal enterprise he saw that the additional crime of murder might be committed, and that the additional crime of murder of the deceased was in fact committed in the carrying out of that joint criminal enterprise." (AB 37-40) (italics added)
7. During the course of the summing up he handed to the jury the written directions that had been circulated and agreed.
8. The transcript records that, near the conclusion of the summing up, the following exchange took place between the Crown prosecutor, the trial judge and defence counsel: "CROWN PROSECUTOR: Your Honour gave the jury a direction in relation to extended joint criminal enterprise. In my closing … I told the jury that the Crown case there was agreement between this accused and his brother, Mitchell Johnson, to assault the deceased with either the intent to kill or inflict grievous bodily harm. Your Honour, the Crown case has never [been] one of extended joint criminal enterprise; it has been of an assault with intent to cause grievous bodily harm which is murder, or an assault to kill which is murder; not to assault the person or to commit some other crime, and then during the commission of that crime - HIS HONOUR: That is why I gave the written direction because they were formulated on that basis. CROWN PROSECUTOR: The Crown case has never been one of extended joint criminal enterprise. HIS HONOUR: The written directions were formulated on that basis because it was my understanding that is what the Crown case was and you raised no issue about the written directions. CROWN PROSECUTOR: That is so. But, your Honour? HIS HONOUR: Are you saying the written directions are wrong? CROWN PROSECUTOR: Can I say this: when your Honour then mentioned it, this was the first time that has been mentioned, extended joint criminal enterprise. I then looked at the directions again and, on page 1 for murder point four, that can still remain, but I would have thought it should read 'even though the killing of the deceased may not have been the subject'. HIS HONOUR: Why am I being told this now when I specifically asked yesterday afternoon were there any issues in relation to the direction and I was told no? CROWN PROSECUTOR: Your Honour, as of yesterday I did not know that your Honour was going to give the jury a direction. HIS HONOUR: It was plainly evident, with respect, Mr Crown, the written directions said the object of the joint criminal enterprise was the assault of the accused and that in the course of that assault an act was done which caused his death, and you raised no issue about that. CROWN PROSECUTOR: Well your Honour, I am raising it now. HIS HONOUR: That is the reason why I give these things out before, so that they are raised before and so that there is common ground between everybody about what the directions ought be. What do you say I should direct the jury? CROWN PROSECUTOR: Your Honour, you should in my submission withdraw the direction in relation to extended joint criminal enterprise. HIS HONOUR: What do you say, [defence counsel]? [DEFENCE COUNSEL]: I agree with the Crown, that certainly both the Crown's opening at the bottom of page 4, (sic - as recorded in the transcript - correctly page 14) line 49 it is in almost identical terms to the Crown's closing. The Crown said that it was the Crown case that it was an agreement between this accused and his brother to assault the deceased with the intent of either causing grievous bodily harm or to kill him. So I must say I did not understand the Crown case to be put in any way as extended joint criminal enterprise. In terms of my reading of your Honour's written directions, I am in the same position, I suppose, as the Crown's; that I read point one on the written direction in relation to murder to be, I did not have [a] problem with it because it was read in conjunction with point 3. HIS HONOUR: What are you asking me to do? [DEFENCE COUNSEL]: Your Honour, I think I do agree with the Crown. The jury should perhaps, perhaps your Honour should indicate your Honour's direction that this is a - I think your Honour's words were the Crown says this is an agreement to assault the deceased but another crime was committed which is, to be honest, that I see the first point where your Honour mentioned that to the jury, I was alerted to the fact that your Honour took the view that this was an extended joint criminal enterprise the Crown case was relying upon. Your Honour, if your Honour withdraws that direction and put to the jury that it is the Crown's case that not that another crime was committed, but that the agreement was to assault with the intention of causing grievous bodily harm or to kill. HIS HONOUR: So what amendments do you say can be made to the written directions of which everybody agrees and which the jury now have? [DEFENCE COUNSEL]: I am not actually seeking any amendment to that. HIS HONOUR: I think the Crown might be. Mr Crown what do you say about the written document? CROWN PROSECUTOR: In relation to point 4 on page 1 under murder, if your Honour looks at 3, deliberate act was committed with either the intention of killing or the intention of inflicting grievous bodily harm. If the Crown case was that it was only an intention to kill then 4 would be fine. But because the Crown puts its case on two bases, intent to kill and intent to do grievous bodily harm, even though the killing of the deceased may not have been the subject of the agreement, the accused foresaw that it may occur. That covers 3(b) the intent to inflict grievous bodily harm." (AB 64-66)
9. Both counsel then asked the trial judge to withdraw the direction concerning extended joint criminal enterprise.
10. The trial judge then recalled the jury and gave a further direction on another matter. He then said: "The other matter that I wanted to revisit with you was the direction that I gave you in relation to the joint criminal enterprise because it has been pointed out to me that one of the things that I said to you may not have been consistent with the manner in which the Crown puts its case. So what I am going to do is I am going to in effect withdraw the direction that I gave you previously about joint criminal enterprise and I will replace it with this direction that I am about to give you. To a large extent it does not differ but you must understand that what I am now giving you is the direction upon which you must act. The law is that where two or more persons carry out a joint criminal enterprise, or what I have referred to as an agreement to carry out a particular criminal activity, each one of them is held to be criminally responsible for the acts of another participant in carrying out that enterprise or activity. That is so regardless of the particular role that is played in the enterprise by any particular participant in it. A joint criminal enterprise exits where two or more persons reach an understanding or an arrangement, amounting to an agreement between them that they will commit a crime. … It does not matter for the purposes of a joint criminal enterprise whether the agreed crime is committed by only one, or some, of the participants in the enterprise, or whether they all played an active part in committing that crime. All of the participants in the enterprise are equally guilty of committing the crime regardless of the actual part played by each one in its commission. In the present case the Crown alleges that the crime which was the subject of the agreement was an assault upon the deceased. … In the present case the Crown alleges that the accused was a participant along with Mr Johnson in an agreement or a joint criminal enterprise to commit the offence of assault." (Italics added)
11. His Honour then directed the jury to amend the written direction in para 4 by deleting the words "was not" and inserting in lieu the words "may not have been". The written direction then read: "4. Even though the killing of the deceased may not have been the subject of the agreement, the accused foresaw that it may occur."
12. His Honour went onto say: "I referred earlier to an additional offence being committed. You should simply ignore what I said previously and you should act upon the oral and amended written direction that I have just given you."

The appeal

1. By grounds 1 and 2 as specified in the Notice of Appeal, the appellant contends that the trial judge erred in law by directing the jury in terms of the principle of extended joint criminal enterprise, when the Crown case was framed in terms of joint criminal enterprise, and thus advanced a case for the consideration of the jury different to that which had been put by the Crown. By ground 3 (additionally or alternatively, he contended that the combination of written and oral directions was confusing and that the directions were thus inadequate.

Consideration

1. The exchanges between counsel and the trial judge, extracted at length above, reveal a degree of confusion in all quarters. The opening remarks of the Crown Prosecutor correctly identified the problem in the directions, both oral and written: put simply the directions misstated the Crown case on joint criminal enterprise. It was always the Crown case, as clearly stated in the opening, that the agreement to which it alleged the appellant and his brother were parties was to assault Mr Abouhait with the intention of killing him or causing him grievous bodily harm. This was the case the Crown Prosecutor contended the Crown had established in his closing address. If the assault with that intention was carried out, by either or both of the appellant and his brother as participants to the agreement, and the assault resulted in the death of Mr Abouhait, then both would be guilty of murder. It was never the Crown case that the agreement was simply to assault Mr Abouhait: but that his death was foreseen by the appellant as a possible result such that he would be liable for the murder under the principles of extended joint criminal enterprise. But that was the import of both the oral directions and para 4 of the written directions.
2. Unfortunately, the Crown went onto accept that para 4 "can still remain", although perhaps modified by the substitution of the words "may not have been" for "was not". The point of the modification is elusive. The difficulty with para 4 was not the words "was not" but that it was included at all. It is a direction specifically related to the concept of extended joint criminal enterprise, which the Crown was at some pains to point out was not its case.
3. Defence counsel then adopted the original position of the Crown, that the direction on extended joint criminal enterprise should be withdrawn, and a direction given that the Crown case was "that the agreement was to assault with the intention of causing grievous bodily harm or to kill" - but inexplicably, went onto say that he was not asking for any amendment to the written directions.
4. The result was that the jury retired with a written direction related to a basis of liability for the murder of Mr Abouhait upon which the Crown had never relied. It is true that his Honour told the jury to ignore what he had earlier said about "an additional offence being committed", but this could not and did not overcome the misleading effect of para 4.
5. Moreover, in para 1 of the written directions, and repeatedly in the oral directions (including those given after the point had been taken) the trial judge identified the object of the agreement asserted by the Crown as an assault upon Mr Abouhait, without any reference to the intention with which it claimed the assault was to be committed. The intention to kill or cause grievous bodily harm to Mr Abouhait, integral to the Crown case and elemental of the offence of murder, was diminished by the numerous references in the summing up only to an intention to assault. Defence counsel appears to have thought that was overcome by the inclusion of para 3 in the written directions, requiring proof by the Crown of an intention on the part of the actual assailant to kill or cause grievous bodily harm. What was apparently not appreciated was that the direction as framed left open the possibility that the assault was carried out by Mitchell Johnson, with the intention to kill or cause grievous bodily harm formed subsequently to and independently of any agreement with the appellant to assault Mr Abouhait. If that were the case, then the appellant would not be liable for murder (unless he foresaw the possibility of death or grievous bodily harm - but that was not the Crown case).
6. The identification of a (mere) assault as the agreed crime imposed a lesser burden on the Crown than the proper identification of the elements of the agreed crime including the requisite intention.
7. On appeal, counsel for the Crown struggled to defend the directions. She argued that para 3 required the jury to consider the intention of both brothers as at the time of the infliction of the act causing death. This cannot be accepted. As indicated above, para 4, particularly when read with para 2, left open the possibility that one brother formed an intention to kill or cause grievous bodily harm subsequently to the agreement to assault Mr Abouhait. The submissions went on: "52. Therefore, when the jury came to consider the third element in the written directions for murder, they would have been required to consider whether they were satisfied that both the applicant and his brother had the requisite intention to kill or inflict grievous bodily harm. The Crown case did not provide a basis for the jury to be satisfied that it was only one of the assailants that committed the act/s that caused death during the course of assaulting the deceased."
8. Again, this cannot be accepted. The point is not how the Crown case should be construed, but what directions were given. In any event, the last sentence in para 52 of the submissions is simply unsupportable. The Crown could not establish whether either or both of the brothers was or were actual perpetrators.
9. Counsel also argued: "The fourth element was therefore present simply to cover the situation where the applicant and his brother had an intention to inflict grievous bodily harm (as opposed to death). Strictly speaking that additional element was not necessary since for that scenario all that was required that death occur during the course of the assault where the applicant and his brother had an intention to inflict grievous bodily harm. 57.The necessity for the accused to foresee that 'the killing' may occur was an additional requirement that was not strictly required to be proved by the Crown and thus as such was an unnecessary further hurdle for the Crown to surmount. To this extent it could be viewed as favourable to the applicant."
10. That submission ignores the manner in which the Crown case was framed, which was, from beginning to end, that the joint intention of the brothers was either to kill or cause grievous bodily harm.
11. The Crown concluded: "64. The directions given by his Honour were in all the circumstances adequate."
12. In my opinion, the directions cannot be held to have been adequate. They misstated the Crown case, were confusing and were wrong. The amendment made to the written directions did not address these issues.

Criminal Appeal Rules, r 4

1. By way of fall-back position, the Crown relied on Rule 4 of the Criminal Appeal Rules, and the proviso to s 6 of the Criminal Appeal Act 1912.
2. By rule 4 of the Criminal Appeal Rules: "No direction, omission to direct, or decision as to the admission or rejection of evidence, given by the Judge presiding at the trial, shall, without the leave of the court, be allowed as a ground for appeal or an application for leave to appeal unless objection was taken at the trial to the direction, omission, or decision by the party appealing or applying for leave to appeal."
3. In ARS v R [2011] NSWCCA 266, Bathurst CJ said: "[148] … the requirements of r 4 are not mere technicalities. The Criminal Appeal Act does not exist to enable an accused who has been convicted on one set of issues to have a new trial under a new set of issues which could or should have been raised at the first trial. … The appellant must establish that he or she has lost a real chance (or a chance fairly open) of being acquitted … A failure by counsel to take objection or to raise an issue on summing up may be explicable by the fact that the counsel said nothing hoping to gain an advantage at a later stage, or that counsel took no objection as, in the atmosphere of the trial, counsel saw no injustice as to what was being done … An unexplained failure to take the point at the trial is usually a reasonably reliable indicator of the fairness and adequacy of the of the summing up …" (internal citations omitted)
4. In Papakosmas v The Queen (1999) 196 CLR 297: [1999] HCA 37 McHugh J said: "[72] There is no case for the grant of leave under r4 unless the Court of Criminal Appeal is satisfied that the appellant has an arguable case that the trial judge has made an error of law or is satisfied that the appellant's conviction is otherwise a miscarriage of justice. Satisfying the court that there is an arguable case is extremely difficult where the appellant has failed to object to evidence or failed to ask for a direction concerning evidence. In such cases, the trial judge has made no error of law because he or she has not been asked for a ruling. Consequently, an appeal can only succeed if the Court of Criminal Appeal is satisfied that the admission of the evidence or the failure to give the direction has caused a miscarriage of justice, proof of which lies on the appellant. …" However, two other members of the Court (Gaudron and Kirby JJ) expressed a preference for a more flexible approach (at [44]).
5. In Greenhalgh v R [2017] NSWCCA 94, Basten JA reviewed the various approaches discernible in the authorities relevant to the applicant of rule 4, and concluded (at [14]) that prescription as to its application is inappropriate; but said: "If, in a clear case, a necessary element of a fair trial according to law was overlooked, leave should usually be granted. However, it is not possible to be prescriptive. It must, in some sense, be in the interests of justice that leave be granted; otherwise leave should be refused."
6. I respectfully agree with the first and second propositions contained within this passage; I would not go so far as to adopt the third ("otherwise leave should be refused"). But, in any event, this was not a case in which it could be said that the failure of trial counsel to identify the error was a result of a tactical decision, nor that the error was such as could be passed over as unimportant in the atmosphere of the trial. Nor is it a case in which it could be said that the appellant did not lose a real chance of acquittal. The reality is that the jury retired to reach its verdict on a basis that the Crown had never advanced. The issues properly presented to them for determination by the Crown were never determined. To adopt the words of Basten JA, "a necessary element of a fair trial according to law was overlooked."
7. In my opinion, leave to rely on these grounds of appeal should not be refused.

The Criminal Appeal Act, s 5.

1. By s 5 of the Criminal Appeal Act a person convicted on indictment may appeal to this Court against conviction on any ground which involves a question of law alone, and, with the leave of the court, on any ground of appeal which involves a question of fact alone or a question of mixed law and fact, or any other ground which appears to the court to be a sufficient ground of appeal.
2. By s 6, this Court is to allow an appeal (inter alia) if of the opinion that the verdict of the jury 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. By a proviso to s 6: "…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."
3. The task of this Court, where the application of the proviso to s 6 is raised, is to determine whether there has been a substantial miscarriage of justice: Kalbasi v The State of Western Australia [2018] HCA 7 at [16], citing Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 at [44]. In that paragraph, the High Court said: "It cannot be said that no substantial miscarriage of justice has actually occurred unless the appellate court is 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."
4. The nature of the appellate task was examined in Weiss, and again in Kalbasi. The appellate court must, when the proviso is raised, make its own independent assessment of the evidence, in the same way it does when considering a ground of appeal that raises the reasonableness (or unreasonableness) of a jury verdict of guilty, and, in doing so, make due allowance for the natural limitations that exist in the case of an appellate court proceeding wholly or substantially on the record (Weiss at [41]).
5. In [41] of Weiss the court added: "There will be cases, perhaps many cases, where those natural limitations require the appellate court to conclude that it cannot reach the necessary degree of satisfaction. In such a case the proviso would not apply, and apart from some exceptional cases, where a verdict of acquittal might be entered, it would be necessary to order a new trial. But recognising that there will be cases where the proviso does not apply does not exonerate the appellate court from examining the record for itself."
6. Three matters are to be borne in mind:

• the task is undertaken on the whole of the record, including the fact that the jury returned a verdict of guilty;
• the accusatorial nature of a criminal trial;
• the criminal standard of proof (Weiss at [43]).

1. In Weiss, the High Court recognised that there may be cases where it would be proper to allow the appeal and order a new trial, even though the appellate court was persuaded, to the requisite degree, of the appellant's guilt. It gave as an example of such a case one where there had been a significant denial of procedural fairness (at [45]).
2. In Kalbasi, the High Court further recognised that some errors will prevent the appellate court from being able to assess whether guilt was proved to the criminal standard. It gave as an example cases in which there has been a wrong direction on an element of liability in issue ([15]).
3. In those cases, it went on to say: "[56] It may be accepted that in any case in which an appellate court concludes that an accused was 'not in reality tried for the offences for which he was indicted' there will have been a substantial miscarriage of justice within the meaning of the proviso and it may also be expected that in such a case there will be a contest as to whether that conclusion is appropriate: to say that an accused has not in reality been tried for the offence for which he or she has been indicted is a vivid way of expressing the conclusion that a misdirection as to the elements of an offence amounts to a substantial miscarriage of justice for the purposes of the proviso, but it does not aid the analysis of whether the error is of such gravity as to warrant that conclusion. [57] A misdirection upon a matter of law is always contrary to law, and it is always a departure from the requirements of a fair trial according to law. But sometimes a misdirection on a matter of law will prevent the application of the proviso; and sometimes it will not. … the question is always whether there has been a substantial miscarriage of justice, and the resolution of that question depends on the particular misdirection and the context in which it occurred."
4. In my opinion, this case falls into the category in which there has been a wrong direction on an element of liability in issue. The appellant has never had a jury determination of the agreement which he was alleged to have made with his brother. That is because the first issue specified in the written directions was whether the agreement was to commit an assault upon Mr Abouhait, as distinct from whether they had agreed to assault him with the intention of killing or causing grievous bodily harm - a more onerous burden on the Crown.
5. Moreover, the jury was directed in such terms as to leave open the possibility that it was Mitchell Johnson who, in a departure from the agreement to assault, formed the intention of killing or causing grievous bodily harm. Either of these circumstances is, in my opinion, of itself, sufficient to reject the Crown's reliance on the proviso. In combination, they are irresistible.
6. In compliance with the requirements of Weiss and Kalbasi, however, it is necessary to undertake an examination of the whole of the evidence in the trial.
7. The circumstantial case that the appellant was involved in the murder of Mr Abouhait was strong. The Crown pointed to the evidence, briefly referred to above, of the hostile relationship between the appellant and Mr Abouhait; there was evidence that the appellant was significantly attached to the gold chain that Mr Abouhait had stolen from him, and that the appellant threatened that, if it was not returned, Mr Abouhait would be "hurt". There was also evidence that Mr Abouhait had attempted to break into the appellant's house, and had been arrested, but that the appellant told police that he did not wish to make a statement, and that he would "look after it myself". There was evidence that the appellant said something similar to the neighbour who had alerted police to the attempted break in. There was evidence of statements made by the appellant to Gina Schembri and Angela Schembri that could reasonably be construed as admissions.

Amendments 26 June 2019 - restriction lifted 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: 26 June 2019