Hewitt v R [2021] NSWCCA 227

Hewitt v R [2021] NSWCCA 227

The appeal was allowed because the trial judge did not in any real or meaningful way summarise the applicant's defence case and gave a material misdirection about the use of the 2013 context evidence, causing a miscarriage of justice. The trial judge also failed to give a full Liberato direction. Given those miscarriages, and because the defence case had not been fairly put to the jury, the Court declined to apply the proviso despite the apparent strength of the Crown case. Leave on the admissions-direction ground was refused because no such direction was sought at trial, there was an available tactical reason not to seek it, the proposed direction was not expressly formulated on appeal,...

Jurisdiction
Australia
Judgment Date
24 September 2021
Procedural Posture
Appeal Against Conviction / Application for Leave to Appeal and Appeal in the Court of Criminal Appeal From Conviction in the District Court of New South Wales
Outcome
Appeal allowed; conviction on count 2 quashed; proceedings remitted to the District Court arraignment list at Gosford.
Legal Topics
['appeal Against Conviction' 'miscarriage of Justice' 'summing Up to Jury' 'failure to Put Defence Case' 'liberato Direction' 'admissions' 'proviso']
['criminal Law' 'criminal Procedure' 'evidence'] ['appeal Against Conviction' 'miscarriage of Justice' 'summing Up to Jury' 'failure to Put Defence Case' 'liberato Direction' 'admissions' 'proviso']

Case Brief

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Procedural Posture

Appeal Against Conviction / Application for Leave to Appeal and Appeal in the Court of Criminal Appeal From Conviction in the District Court of New South Wales

Legal Issues

  1. 1 ["Whether the trial judge failed to put the applicant's case fairly before the jury, occasioning a miscarriage of justice." 'Whether the trial judge failed to give the jury a full Liberato direction, occasioning a miscarriage of justice.' 'Whether the trial judge erred by failing to direct the jury about how they could use the text message and recorded telephone call as admissions of guilt.' 'Whether the proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW) should be applied despite any miscarriage of justice.']

Ratio Decidendi

The appeal was allowed because the trial judge did not in any real or meaningful way summarise the applicant's defence case and gave a material misdirection about the use of the 2013 context evidence, causing a miscarriage of justice. The trial judge also failed to give a full Liberato direction. Given those miscarriages, and because the defence case had not been fairly put to the jury, the Court declined to apply the proviso despite the apparent strength of the Crown case. Leave on the admissions-direction ground was refused because no such direction was sought at trial, there was an available tactical reason not to seek it, the proposed direction was not expressly formulated on appeal,...

Court Disposition

Appeal allowed; conviction on count 2 quashed; proceedings remitted to the District Court arraignment list at Gosford.

Orders

  • ['Leave to appeal on ground 1 refused under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021;' 'Leave to appeal on ground 2 granted under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021;' 'Appeal allowed;' "The applicant's conviction on count 2 in the indictment is quashed;" 'The proceedings are...