Petryk v R [2020] NSWCCA 157

Petryk v R [2020] NSWCCA 157

The trial judge did not err in warning defence counsel against advancing as a positive proposition a non-shooting hypothesis that had not been put to the relevant witness and was not supported by evidence; this was not an inappropriate strict application of Browne v Dunn but proper control of the closing address. The summing up fairly conveyed the applicant's case, including that he denied involvement and that the Crown had to prove he was the shooter, and no request for redirection was made. Ground 1 required leave but failed on the merits; ground 2 should not be permitted under rule 4.

Jurisdiction
Australia
Judgment Date
10 July 2020
Procedural Posture
Criminal Appeal Against Conviction / Application for Extension of Time, Application for Leave to Appeal, and Appeal Against Conviction
Outcome
Time extended; leave to appeal granted on ground 1; leave under rule 4 refused on ground 2; appeal dismissed on ground 1.
Legal Topics
['appeal Against Conviction' 'murder' 'closing Address' 'browne V Dunn' 'summing Up' 'miscarriage of Justice' 'leave to Appeal' 'extension of Time']
['criminal Law' 'criminal Procedure' 'appeals'] ['appeal Against Conviction' 'murder' 'closing Address' 'browne V Dunn' 'summing Up' 'miscarriage of Justice' 'leave to Appeal' 'extension of Time']

Case Brief

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Procedural Posture

Criminal Appeal Against Conviction / Application for Extension of Time, Application for Leave to Appeal, and Appeal Against Conviction

Legal Issues

  1. 1 ['Whether the trial judge erred by not allowing defence counsel to make closing submissions to the jury on matters not put to a relevant Crown witness.' "Whether the trial judge's summing up failed to put a hypothesis consistent with innocence and thereby caused a miscarriage of justice." 'Whether leave to appeal should be granted for each ground and whether time for filing should be extended.']

Ratio Decidendi

The trial judge did not err in warning defence counsel against advancing as a positive proposition a non-shooting hypothesis that had not been put to the relevant witness and was not supported by evidence; this was not an inappropriate strict application of Browne v Dunn but proper control of the closing address. The summing up fairly conveyed the applicant's case, including that he denied involvement and that the Crown had to prove he was the shooter, and no request for redirection was made. Ground 1 required leave but failed on the merits; ground 2 should not be permitted under rule 4.

Court Disposition

Time extended; leave to appeal granted on ground 1; leave under rule 4 refused on ground 2; appeal dismissed on ground 1.

Orders

  • ['Extend the time for filing the notice of appeal/notice of application for leave to appeal to 9 March 2020.' 'Grant leave to appeal with respect to ground 1.' 'Refuse leave under rule 4 of the Criminal Appeal Rules with respect to ground 2.' 'Dismiss the appeal on ground 1.']