Rule 4
59 Rule 4 Criminal Appeal Rules provides:
"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".
60 In Regina v ITA [2003] NSWCCA 174; (2003) 139 A Crim R 340, Ipp JA (with whom Buddin and Shaw JJ agreed) collected, at [93]-[98], authorities concerning rule 4 and expressed views that I gratefully adopt:
" [93] In R v DH , Stein JA observed [at 115]:
'Again, rule 4 applies because no point was taken at trial. In Jeffrey (Unreported, Court of Criminal Appeal, NSW, 16 December 1993), Mahoney JA made some pertinent observations about the role of rule 4 where an appellant relies on misdirections or non-directions to which no objection was taken at trial. They bear repeating. His Honour said:
'[It] is proper to emphasise the importance of the principle embodied in r 4.
In my opinion this principle plays an important part in the criminal trial process. It is important that any objection to the summing up or that any defect or omission at the trial which can be cured or mitigated by steps taken at the trial, be raised at the time of the trial. The judge should be asked to, and should have the opportunity to, correct any error or deficiency of this kind.
…
Errors will occur and r 4 provides for them. But unless there be a convincing reason why the matter was not raised at the trial and unless the possibility of real injustice appears, an accused should be held to what was done by or for him at trial level. But infrequently, this Court is asked to act under r 4 when the reason why the defect was not dealt with at the trial has not been established and where it is at least possible that there were tactical reasons why it was not. It is not easy for the Court of Appeal to satisfy itself that the reason why the matter was not raised was error rather than choice. In such circumstances, the court should be slow to act under r 4 …'".
[94] In R v Fuge (2001) 123 A Crim R 310, Wood CJ at CL (with whom Heydon JA and Sully J agreed) said at 319:
'It is timely for this Court to repeat the observations of Hunt CJ at CL in Abusafiah (1991) 24 NSWLR 531 and of Gleeson CJ in Sanderson (unreported, Court of Criminal Appeal, NSW, 18 July 1994), in relation to the positive obligation which rests upon trial counsel to assist the court in the conduct of a trial, and in relation to the need to give meaning to r 4, whose validity was confirmed in Esposito (unreported, Court of Criminal Appeal, NSW, 23 July 1990).
In Abusafiah , Hunt CJ at CL said (at 536; 429-430):
'The requirements of r 4 of the Criminal Appeal Rules do not constitute some mere technicality which may simply be brushed aside. One purpose of the requirement that no misdirection or non-direction may, without leave, be allowed as a ground of appeal unless objection was taken at the trial is to ensure that the trial judge receives the assistance from counsel to which he or she is entitled in the task of giving appropriate directions to the jury. If a summing-up contains some error which could easily have been cured once the judge's attention had been drawn it, and if counsel for the accused to whose detriment the error operates fails to comply with his or her duty to draw the judge's attention to that error … any suggestion that such detriment automatically entitles the accused to a new trial does not strike a sympathetic cord in the hearts of those who see the right to a fair trial as operating in favour not only of the accused but also of the Crown, which prosecutes on behalf of the whole community. The Criminal Appeal Act 1912 (NSW) does not exist to enable an accused who has been convicted under one set of issues to have a new trial under a new set of issues which he could and should have raised at the first trial. There are, of course, cases in which the error made is of such a nature that, notwithstanding the failure of counsel for the accused to comply with a duty leave will be granted to avoid a miscarriage of justice.'
The caution given by Gleeson CJ in Sanderson was to the following effect:
'This case provides a striking and clear illustration of the reason for the presence in the Criminal Appeal Rules of r 4. If trial counsel had apprehended that there was any significant risk that the jury might have misunderstood the true nature of their function in relation to this matter of corroboration then the point was available to be taken by trial counsel. If the point had been taken, and if there really had been a problem, it was a problem that was capable of simple correction. It would ordinarily be quite inappropriate to permit appellants, in such circumstances to come to the Court of Criminal Appeal and complain that a miscarriage of justice has occurred.''
Wood CJ at CL went on to refer to a number of other authorities where similar sentiments had been expressed.
[95] The approach which his Honour indicated should be taken to r 4 accords with that adopted by McHugh J in Papakosmas v R (1999) 196 CLR 297 where his Honour said at 319:
'There is no case for the grant of leave under r 4 unless the Court of Criminal Appeal is satisfied that the appellant has an arguable case that the trial judge has made an error or 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.'
[96] See also R v Roberts (2001) 53 NSWLR 138 where Carruthers AJ said at 150-151:
'It is now more than ever imperative that trial counsel recognise and discharge the responsibility which they owe to the trial judge to provide whatever assistance he or she may require in order, so far as possible, to ensure that the directions to the jury are such that it can be said the accused has had a trial according to law.
For years this Court has emphasised in the strongest possible terms the need for trial counsel to take objections to the summing up or the admissibility of the evidence at the trial itself so that, if they are of substance, the judge may correct them and thus avoid appeals to this Court and possible second and sometimes third trials.'
These views were reiterated in R v Hokafonu [2002] NSWCCA 92, in R v Pearson [2002] NSWCCA 429 and in Giri at 588-589.
[97] It is disturbing that so often no account is taken of the clear warnings that have been given by this Court. It is not unusual for appellants, without making any application for leave under r 4, to proceed blithely to argue grounds that should have been raised by counsel at trial but were not. There is usually, as in this case, no explanation whatever for the omission to raise the perceived difficulties with the trial judge.
[98] The existence of r 4 and s 99 imposes a duty on counsel to inform the trial judge of all points that arise from the summing up that reasonably could give rise to an appeal. It will not lightly be assumed that this duty has been breached. Rather, unless there is good reason to hold the contrary, it will be inferred that decisions not to raise such matters with the trial judge are taken for sound forensic reasons. No more need be said than to repeat and emphasise the remarks of Gleeson CJ in R v Sanderson (unreported, NSWCCA, 18 July 1994) that:
'It would ordinarily be quite inappropriate to permit appellants, in such circumstances, to come to the Court of Criminal Appeal and complain that a miscarriage of justice has occurred.'"
61 In Picken v The Queen [2007] NSWCCA 319 Mason P (with whom Hidden and Harrison JJ agreed) said (at [20]-[22]):
"Leave to rely on an error to which no objection had been taken at the trial will be granted only where the appellant can demonstrate that the error led to a miscarriage of justice. There have been varying formulations of the test for identifying a miscarriage of justice in this context (see Tripodina and Morabito v R (1988) 35 A Crim R 183 at 195; Papakosmas v The Queen (1999) 196 CLR 297 at 319; R v Wilson (2005) 62 NSWLR 346 at 352[20]).
It appears to be generally accepted that the appellant must at least establish that he or she has lost a real chance (or a chance fairly open) of being acquitted.
The question of leave in accordance with rule 4 needs to be addressed in relation to the particular error identified by the appellant and its impact, in isolation and in conjunction with other errors, upon the justice of the conviction under challenge."
62 In Germakian v R [2007] NSWCCA 373; (2007) 70 NSWLR 467 this Court (Giles JA, Hulme and Hislop JJ) said of rule 4 (at 472, [10]-[13]):
"10 The requirements of r 4 do not constitute some mere technicality which may simply be brushed aside: R v Abusafiah (1991) 24 NSWLR 531 at 536.
11 In R v Tripodina (1988) 35 A Crim R 183 at 191 this court held:
'it is the duty of counsel appearing at the trial to take objection to matters which, in their view, are irregular, or which might be unduly prejudicial to their client, and in particular to raise, in relation to the summing up, any matters which the trial judge may have overlooked or which, in their view, he has put erroneously.'
12 A failure by counsel to perform this duty may be explicable because:
(a) he overlooked the point or was unaware of the law on the subject;
(b) he deliberately said nothing hoping to gain a tactical advantage at a later stage; or
(c) he took no objection as, in the atmosphere of the trial, he saw no injustice or error in what was done: Tripodina (at 193, 191).
13 Generally speaking, leave under r 4 will only be granted where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings: Tripodina (at 195) or as Mahoney JA said in R v Jeffrey (Court of Criminal Appeal, 16 December 1993, unreported, at 7) followed in R v DH [2000] NSWCCA 360:
'unless there be a convincing reason why the matter was not raised at the trial and unless the possibility of real injustice appears, an accused should be held to what was done by or for him at trial level'."