Hadchiti v R [2016] NSWCCA 63

Hadchiti v R [2016] NSWCCA 63

The written question trail taken into the jury room materially departed from the required formulation of the Crown's burden by repeatedly equating proof beyond reasonable doubt with the existence or absence of a reasonable possibility, without making clear that any such reasonable possibility was for the Crown to remove or eliminate. The written directions were likely to govern the jury's deliberations despite correct oral statements of the burden. The error went to the root of the trial, leave under r 4 was granted for ground 1, and the proviso was not applied because the error concerned the standard or onus of proof and, in any event, the Court could not exclude beyond reasonable doubt...

Jurisdiction
Australia
Judgment Date
27 April 2016
Procedural Posture
Criminal Appeal Against Conviction and Sentence / Application for Leave to Appeal Against Conviction; Appeal Against Conviction
Outcome
Leave to appeal against conviction granted on ground 1; appeal against conviction allowed; conviction for murder quashed; matter remitted for retrial.
Legal Topics
['murder' 'jury Directions' 'question Trail' 'onus and Standard of Proof' 'beyond Reasonable Doubt' 'self Defence' 'provocation' 'unreliability Warning' 'proviso' 'retrial']
['criminal Law' 'criminal Procedure' 'evidence'] ['murder' 'jury Directions' 'question Trail' 'onus and Standard of Proof' 'beyond Reasonable Doubt' 'self Defence' 'provocation' 'unreliability Warning' 'proviso' 'retrial']

Case Brief

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Procedural Posture

Criminal Appeal Against Conviction and Sentence / Application for Leave to Appeal Against Conviction; Appeal Against Conviction

Legal Issues

  1. 1 ['Whether written and oral jury directions, including a question trail, misstated the onus or standard of proof by equating proof beyond reasonable doubt with the absence of a reasonable possibility.' 'Whether the trial judge erred in giving an unreliability warning under s 165 of the Evidence Act 1995 (NSW) in respect of evidence given by members of the Hadchiti family and Mr Amin.' 'Whether leave should be granted under r 4 of the Criminal Appeal Rules where no objection was taken at trial.' 'Whether the proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW) should be applied despite error in the jury directions.']

Ratio Decidendi

The written question trail taken into the jury room materially departed from the required formulation of the Crown's burden by repeatedly equating proof beyond reasonable doubt with the existence or absence of a reasonable possibility, without making clear that any such reasonable possibility was for the Crown to remove or eliminate. The written directions were likely to govern the jury's deliberations despite correct oral statements of the burden. The error went to the root of the trial, leave under r 4 was granted for ground 1, and the proviso was not applied because the error concerned the standard or onus of proof and, in any event, the Court could not exclude beyond reasonable doubt...

Court Disposition

Leave to appeal against conviction granted on ground 1; appeal against conviction allowed; conviction for murder quashed; matter remitted for retrial.

Orders

  • ['Grant leave to appeal against conviction, confined to ground 1 of the notice of application for leave to appeal filed 28 May 2015.' 'Appeal against conviction allowed.' "Quash the appellant's conviction for murder on the charge contained in the indictment against him dated 28 October 2013." 'Order that the matter...