Zhou v R

Court of Criminal Appeal (NSW)|2021-11-19|Before: Beech-Jones CJ, Davies J, Wilson J, Jones CJ

Solicitors: AA Criminal Lawyer (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2017/91952 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Citation: [2020] NSWDC 266 Date of Decision: 19 March 2020 Before: Colefax SC DCJ File Number(s): 2017/91952

EX TEMPORE Judgment

BEECH-JONES CJ at CL: This is an appeal against a conviction on one count of discharging a firearm with intent to cause grievous bodily harm contrary to s 33A(1)(a) of the Crimes Act 1900.
The sole ground of appeal is that the trial miscarried "by virtue of the trial judge relying [solely] upon written directions read in private in the jury room to direct the jury as to the essential elements of the offences". As this ground reflects a complaint not taken at the trial, leave to raise it is required (Supreme Court (Criminal Appeal) Rules 2021, r 4.1). Accepting the authority of the decision of this Court in Trevascus v Regina [2021] NSWCCA 104 ("Trevascus"), the Crown conceded that leave should be granted to raise this ground, the appeal should be allowed, and a new trial ordered. For the reasons that follow I consider those concessions to be correct.

The Trial

In light of the ground of appeal and the Crown's concession, the Crown and defence case need only be briefly summarised. The Crown alleged that on or about 26 March 2017 the Appellant shot the victim, Fred Ushakov, at the back of the Appellant's residence in Canley Vale. The Crown alleged that the victim, who was known to the Appellant, attended at the Appellant's home with three companions to reclaim possession of his car. The Crown contended that a dispute broke out about whether the victim owed the Appellant money and that, as the victim walked away, the Appellant fired four shots at him from close range one of which entered his body at the lower back. The victim and his companions then dispersed from the scene. The Appellant denied that he shot the victim.
At the trial, the Crown called the victim to give evidence, but he claimed not to remember any incident in 2017 in Canley Heights when he was injured and not to know anyone who lived in the street that the Appellant lived in. The Crown was then granted leave to cross examine the victim under s 38 of the Evidence Act 1995. Ultimately, there was tendered three statements of the victim, one recorded in a police notebook on the day of the incident, another dated 23 May 2017 and a third dated 22 June 2018. The first two statements were the basis for the Crown case. They identified the perpetrator of the shooting as someone of the same Russian-Chinese ethnicity as the victim, someone the victim referred to as "uncle" and someone who lived in the same street as the Appellant. Evidence adduced in the trial supported the contention that the Appellant was that person. The Appellant is of Russian-Chinese ethnicity. The third statement of the victim was consistent with the victim's evidence at the trial. It did not implicate the Appellant.
Other evidence adduced in the Crown case included a witness who heard an argument coming from the Appellant's home and what "sounded like gunshots", the location of DNA matching the victim in a blood sample found at the side of the Appellant's home and Closed Circuit Television Footage ("CCTV") taken from a nearby property which the Crown contended showed the victim and his companions leaving the Appellant's property and the Appellant chasing them carrying a pistol.
The Appellant did not give evidence at the trial. However, his electronic record of interview with a suspected person ("ERISP") taken at the time of his arrest on 26 March 2017 was tendered. In that interview, he denied seeing the victim that day or that the victim and his companions had come to his house. He denied chasing the victim or his companions but said that he heard yelling. He said he went to his front gate, saw "a few boys at the corner' and said he was "running up just to have a look what's going on". He denied that he shot the victim.

The Summing Up

At the commencement of his summing up the trial judge noted that it was in two parts with the first part to be written and the second part to be oral directions to "supplement" the written part "after [the jury] have had a chance to read the document". After describing the historical origins of question trails, his Honour told the jury they would have ten minutes to read a document in the form of a question trail in the jury room. The document was distributed to the jury and the jury retired to the jury room to read it.
There was a separate question trail for each count. For count 1 the question trail stated: Count 1: On 26 March 2017, at Canley Heights in the State of New South Wales, [Gui Jun Zhou] discharged a firearm with intent to cause grievous bodily harm. [1] Are you satisfied beyond reasonable doubt that on 26 March 2017 the accused discharged a firearm? • "Beyond reasonable doubt" are ordinary, everyday words and that is how you should understand them for this and all other questions. • A firearm is a gun, or other weapon that is capable of propelling a projectile by means of an explosive. [2] If "No" to [1], you must find the accused not guilty of Count 1 and proceed no further with this Count. [3] If "Yes" to [1], are you satisfied beyond reasonable doubt that, at the time he discharged the firearm, the accused intended to cause grievous bodily harm to someone? • Intention can be inferred if it is the only rational inference in the circumstances. • It is the accused's actual intention which must be proved, not what some other person in his position may have intended. • Grievous bodily harm means a very serious injury. [4] If "No" to [3], you must find the accused not guilty of Count 1 and proceed no further with this Count. [5] If "Yes" to [3], you can find the accused guilty of Count 1 and proceed no further with this Jury Question Trail. Note: If you answer "No" to either [1] or [3], you must find the accused not guilty of Count 1."
After the jury returned, his Honour told the jury that the "document is part of my summing-up" and that the "directions contained in the jury question trail are binding on you". His Honour then told the jury that they only had to consider counts 2 and 3 if they found the Appellant not guilty on count 1 and that, in relation to each count, "[w]hat the Crown needs to prove beyond reasonable doubt is set out in the document, and only those things".
His Honour then directed the jury about their role as judges of the facts and gave them other directions about their function. His Honour summarised the Crown and Defence case especially in relation to the evidence of Mr Ushakov and the Appellant's ERISP.
Although the trial judge told the jury that he would come back to the question trail it was only later mentioned twice in the summing up. The first mention was the following statement in relation to the phrase "beyond reasonable doubt": "I told you in the jury question trail the things that the Crown needs to prove beyond reasonable doubt before you could convict in relation to the count you are considering. Please do not ask me to give you anymore definition about "what beyond reasonable doubt" means. Judges in this country are not permitted to say to a jury anymore than what I have put in the question trail; so please do not come back and ask me for some further assistance about what the expression means. I have said all I can say about that."
The second mention of the question trail was as follows: "The real issue in this case, it seems to me, having regard to the jury question trail, ….is; has the Crown proved to your satisfaction beyond reasonable doubt that it was [the Appellant] who shot Mr Ushakov? If you are satisfied in relation to count 1 that it was [the Appellant] who shot Mr Ushakov, you probably will not have much difficulty in answering the other questions on that jury question trail."
Although these passages made reference to the question trail, his Honour did not at any point during the summing up "read, further explain, or … make any substantive reference to the contents of [the] question trail[s]" (Trevascus at [40]).

Trevascus

The sole ground of appeal is set out above. The Appellant relied on Tresvascus as establishing a miscarriage of justice.
In Trevascus, this Court upheld an appeal against convictions for robbery and attempt to take and drive a conveyance in company without the consent of the owner in circumstances that were not materially different to this case. The same trial judge had provided the jury a set of written directions in the form of a question trail, invited them to read them in the jury room and, after they returned to the Court room, completed the balance of the summing up without reading out, explaining or referring in any substantive way to the elements of the offence that were set out in the question trail (at [33] to [42]).
In Trevascus, Bellew J, with whom Hoeben CJ at CL and Hidden AJ agreed, noted that s 55B of the Jury Act 1977 permitted a trial judge to provide a jury with written directions, but concluded that the provision did not "abrogate the clear obligation imposed by the common law on a trial judge to give oral directions to the jury" and did "not permit a trial judge, having reduced directions of law to writing, to provide them to the jury, have the jury read them for themselves, and then say nothing more about them" (at [65]). His Honour added (at [67]): "However, for the reasons already explained, and even if written directions are provided, there remains an obligation on the trial judge to give oral directions as well. It is not possible to prescribe the content of such oral directions. That will necessarily be a matter for the determination of the trial judge and will depend upon all of the circumstances of the case, including its nature and complexity. However, in any case where written directions are provided, and irrespective of whether such directions go to the elements of the offence or to substantive issues of law such as self-defence, intoxication or provocation, the obligation of the trial judge to give oral directions will require, at the very least, that such directions be read and explained to the jury in their entirety. The obligation to give oral directions is also likely to encompass the necessity to differentiate, for the jury's assistance, between those elements which are in issue from those which are not. In terms of the element(s) which are in issue, the obligation to give oral directions will generally require the trial judge to identify the evidence which is relevant to such element(s). … Finally, and importantly, it will always be necessary, in any case where written directions are provided, for the trial judge to emphasise to the jury that such directions are not a substitute for the oral directions which are given. A reiteration of that proposition in any written document provided to the jury would be prudent." (emphasis added)
Although this passage accepts that an assessment of what oral directions are required is case dependent, it postulates that, at a minimum, any written directions will be read to and explained to the jury. In the balance of his judgment Bellew J identified the significance of a failure to take that step as including that it "largely deprives a trial judge of the important advantage of assessing whether or not the members of the jury comprehend the directions which are being given" (at [68]) and undermines open justice in that directions of the trial judge should be given "in the full light of publicity"(at [70]) citing Willmont v R (1914) 10 Cr App R 173 at 175; R v Kerr (No. 2) [1951] VLR 239 at 241). With the former, his Honour noted the observations of Bleby J in R v Dunn (2006) 94 SASR 177; [2006] SASC 58 at [45] that one cannot assume that "all jurors are literate, and judges should ever be alive to the reaction of members of the jury to a difficult direction and to the possible need for further explanation or repetition". To that observation I would add that one cannot assume that persons who are literate would necessarily comprehend on a first reading the importance of, or the type of analysis contemplated by, even the clearest of written directions without at least being taken through the document orally at least once.
In Trevascus, Bellew J found that the practice of distributing written directions without any oral explanation to be in effect "a failure on the part of the trial judge to provide proper directions as to the elements of each of the offence" which resulted in a "miscarriage of justice" (at [71]; Criminal Appeal Act, 1912; s 6(1)).
Trevascus was followed by this Court in Bourke (a pseudonym) v R [2021] NSWCCA 145 in which the same practice was adopted by the trial judge. Moreover, in Bourke the question trail for multiple counts was identical such that neither the written nor oral directions enabled the jury to differentiate between the different counts (at [42] per Garling J).

Application of Trevascus to this Case

If, applying Trevascus, a failure to explain or expand on the written directions is properly characterised as a "failure to observe the requirements of the criminal process in a fundamental respect" then it would follow that the conviction would not stand regardless of any assessment of its potential effect on the trial (Hofer v The Queen [2021] HCA 36 at [123] per Gageler J ("Hofer"); Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20 at [48]). However, even if it not so characterised, then at the very least it was an "irregularity" in the conduct of the trial (GBF v The Queen [2020] HCA 40; (2020) 94 ALJR 1037 at [24]). To constitute a miscarriage of justice under s 6(1) of the Criminal Appeal Act 1912 such an irregularity has to be prejudicial in the sense that there was a "real chance" that it affected the jury's verdict (Hofer at [41] and [47] per Kiefel CJ, Keane and Gleeson J; at [118] per Gageler J) or "realistically [could] have affected the verdict of guilt" (at [123] per Gageler J) or "had the capacity for practical injustice" or was "capable of affecting the result of the trial" (Edwards v The Queen [2021] HCA 28 at [74] per Edelman and Steward JJ).
In this case, the trial judge told the jury that the real issue in the trial was whether or not it was the appellant who fired the gun that struck the complainant and that, if they did accept that, then they "might have little difficulty" in concluding that he "did it with the intent to cause grievous bodily harm". That may be so, but that observation was made in the context where the jury did not receive any oral directions or explanation of that part of the question trail which concerned intention or any oral direction in relation to the drawing of inferences. In circumstances where the victim was shot from behind there was at least an issue about intention and, in those circumstances, even if the failure to explain or expand on the written directions only amounts to an "irregularity", then it nevertheless amounted to a miscarriage of justice. Either way the conviction cannot stand.
Two further matters should be noted.
First, one aspect of the appellant's criticisms of the summing up was that the trial judge did not explain or at least expand upon the meaning of the phrase "beyond reasonable doubt" but instead simply told the jury that it was something he was prevented from discussing. It is unnecessary to determine whether that was erroneous in itself. However it was certainly open to his Honour to remind the jury that the Crown had to discharge a high standard of proof before they could convict the accused and that the words meant exactly what they state, that is proof beyond reasonable doubt.
Second, no reliance was placed by the Crown on the "proviso" to s 6(1) of the Criminal Appeal Act 1912 and thus the occasion does not arise to consider whether it is capable of application in these circumstances.

Conclusion and Proposed Orders

It follows that I would uphold the appeal and set aside the conviction.
The Appellant sought a new trial. I note that the Appellant has now served almost two thirds of his non-parole period and half of his overall sentence. Nevertheless, given the seriousness of the charges that were laid against him, the strength of the Crown case and the circumstances in which the error occurred at his trial, I would not, in any event, enter an acquittal but order a new trial (see WX v R [2020] NSWCCA 142 at [91] to [96]).
Accordingly, I propose the following orders: (1) The Appellant be granted leave to raise ground 1 of his notice of appeal. (2) The appeal be allowed. (3) The Appellant's conviction be quashed. (4) A new trial be ordered. (5) List the matter in the District Court Arraignments List at Campbelltown on 9 December 2021 at 9.30am.
DAVIES J: I agree with the reasons of the Chief Judge and the orders which he proposes.
WILSON J: I also agree with his Honour's reasons and the orders which the Chief Judge at Common Law proposes.

Amendments 03 December 2021 - Coversheet - Inclusion of Mr Swaine's name as counsel appearing with Mr Carroll 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: 03 December 2021

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