Libdy v R [2021] NSWCCA 34

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Libdy v R [2021] NSWCCA 34 Hearing dates: 10-11 March 2021 Date of orders: 11 March 2021 Decision date: 11 March 2021 Before: Macfarlan JA Walton J Hamill J Decision: (1) Leave to appeal granted. (2) Appeal allowed. (3) Vacate the order to discharge the jury. (4) Remit the matter to the District Court for the trial to continue on Friday, 12 March 2021. Catchwords: CRIMINAL LAW – urgent appeal against decision to discharge jury – where Prosecutor raises tendency and coincidence reasoning in closing address – where notice requirements not complied with – prejudice to accused – where trial Judge invites application to dispense with notice requirements – where application opposed – decision to discharge jury without application by either party – whether Prosecutor should be permitted to improve its case in subsequent trial – whether appropriate to discharge jury – relevant considerations – where accused opposes discharge – "simple solution" for Prosecutor to withdraw submission and Judge to provide "anti-tendency" directions – decision to discharge unreasonable and plainly unjust – decision based on extraneous and irrelevant considerations – order to discharge jury vacated Legislation Cited: Criminal Appeal Act 1912 (NSW), s 5G Evidence Act 1995 (NSW), ss 97, 98 Cases Cited: Barber v R; Zraika v R [2016] NSWCCA 125 Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22 Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 Hamilton (a pseudonym) v R [2020] NSWCCA 80 R v Grand (1903) 3 SR(NSW) 216 R v Lamb; R v Mason; R v Hill [2016] NSWCCA 135 Trieu v R [2012] NSWCCA 169 Texts Cited: Hamilton v The Queen [2021] HCATrans 19 Category: Principal judgment Parties: Mohammed Libdy (Applicant) Regina (Respondent) Representation: Counsel: E Ozen SC (Applicant) T Krayem (Applicant) G Newton (Respondent)

Solicitors: Abbas Jacobs Lawyers (Applicant) Office of the Director of Public Prosecutions (Respondent) File Number(s): 2019/62804 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Law Date of Decision: 10 March 2021 Before: King SC DCJ File Number(s): 2019/62804

EX TEMPORE Judgment (REVISED) 1. MACFARLAN JA: I will invite Hamill J to deliver the first judgment. 2. HAMILL J: This is an appeal brought pursuant to s 5G of the Criminal Appeal Act 1912 (NSW) which provides for appeals seeking "review of any decision by the court to discharge the jury, but only with leave of the Court of Criminal Appeal". The matter came to the attention of the Registrar yesterday (Wednesday, 10 March 2021). In accordance with sub-s 5G(2), which requires the Court to deal with such appeals "as soon as possible", the Court was constituted as it had been earlier in the day for two unrelated cases, and the matter was listed at 2:30pm. The legal practitioners for the applicant appeared at that time. The prosecuting authority was not represented for reasons that have now been explained. Senior Counsel for the applicant provided a short overview of the state of the trial proceedings and the matter was adjourned until this morning, Thursday, 11 March 2021, for hearing. 3. The applicant is standing trial on an indictment containing 20 counts. These include a number of offences of dealing with the proceeds of crime, supplying drugs and the possession of firearms. The applicant pleaded guilty to five of those counts when he was arraigned before the jury. Prior to the trial, no notice had been given that the Prosecutor intended to rely on tendency or coincidence reasoning: see Evidence Act 1995 (NSW), ss 97(1)(a) and 98(1)(a). 4. It is unnecessary to expand upon the nature of the allegations against the applicant, the evidence called in support of the prosecution case, or the issues that are being litigated in the trial. 5. The trial commenced on Tuesday, 2 March 2021 and the evidence closed on Tuesday, 9 March 2021. Yesterday, the Prosecutor was addressing the jury. He made submissions concerning the use that could be made of certain evidence, including the evidence of the charges to which the applicant had pleaded guilty. The submissions invited the jury to engage in tendency and coincidence reasoning: see Evidence Act, ss 97 and 98. The submission included the assertion that the accused's conduct demonstrated a degree of sophistication and that "this sophistication gives rise to a modus operandi or a methodology of having secret compartments in motor vehicles to conceal items". 6. Those submissions were made in spite of there being no notice that tendency or coincidence evidence would be relied upon by the prosecution. 7. Senior Counsel for the applicant raised objection to the Prosecutor's address at the first opportunity. Mr Ozen SC submitted that the jury was being invited to engage in tendency and/or coincidence reasoning. He went on: "… I note that use of the terms, modus operandi and a particular methodology. It has never been the case, as I understood it, that the [Prosecutor] was relying on a modus or a methodology. I have received no notice with regard to tendency or coincidence." 1. Further, according to Senior Counsel, the Prosecutor employed "intemperate" language "designed to inflame the jury". This included referring to the firearms subject of two of the charges as "instruments" or "weapons" "of death". 2. The applicant sought a ruling whereby the Judge would "invite [the Prosecutor] to withdraw, if not all of his submissions, [then] certainly those that went to inviting the jury to engage in tendency reasoning." 3. In the course of the argument, the trial Judge referred to parts of the address as "colourful but unnecessary" but said to the Prosecutor: "Mr [Prosecutor], it seems to me that your closing address could not be described otherwise than as involving tendency reasoning in relation to the five counts that the accused has pleaded guilty to, as being relevant to the jury's consideration in respect of the remaining 15 counts. I understand that, so far you don't accept that, but I find it impossible to understand it otherwise when you talk about modus operandi in terms of the secret compartments in the BMW, which has no direct relationship to the two other properties other than the visits there at various times and the compartment in the Jazz, and otherwise your reliance on his plea of guilty to what are drug and money charges which are at least similar to a number of the remaining charges that he's defending. I don't believe there are any guns in respect of the BMW or the property seized at 12A Cragg Street. I gather from the fact that Mr Ozen has made this application, that no tendency notice was ever served." 1. The trial Judge then contemplated dispensing with the requirements for proper notice of an intention to rely on tendency evidence. This contemplation arose without application from the Prosecutor and, it must be recalled, part way through the Prosecutor's closing submissions. 2. The Prosecutor then said, "I'll make that application". Senior Counsel for the applicant indicated the application was opposed. At the invitation of the trial Judge, the applicant then articulated the various ways he would be prejudiced if such a course was taken. 3. The trial Judge suggested that the applicant had entered his pleas of guilty "for a tactical reason" but Senior Counsel eschewed that suggestion, explaining that the evidence of the facts behind those pleas would have been in evidence as part of the circumstantial case in any event. 4. At the conclusion of the argument his Honour said: "It is at least, fortunately, a matter that has only occupied a small number of days and the parties have cooperated well in order to ensure that the evidence was dealt with in a condensed fashion. Although, I must say, I had considerable problem in - well, it's not relevant, but I did have some problem in relation to determining which particular items were found where. Because, without reviewing the actual search videos, I was uncertain as to what evidence was given as to what gun was where and what that gun was, or et cetera. Anyway, in the circumstances, I propose to discharge the jury." 1. At that stage, neither party had sought a discharge of the jury. The basis of the discharge appeared to be to allow the Prosecutor to put a tendency (or coincidence) case in circumstances where the idea of dispensing with the notice requirements emanated from the trial Judge in the course of an application arising from impermissible aspects of the Prosecutor's address. 2. When the Judge indicated his intention to discharge the jury, Senior Counsel for the applicant submitted that "the simple solution" was to invite the Prosecutor to withdraw the submissions concerning methodology and modus operandi and to provide the jury with directions that they must not engage in that sort of (tendency or coincidence) reasoning: cf, for example, Hamilton (a pseudonym) v R [2020] NSWCCA 80. His Honour indicated "I don't propose to do that" and said, "I don't believe any directions to the jury would overcome those factors". 3. The trial Judge did not provide formal reasons for the decision to discharge the jury and was not asked to do so. These things are understandable in circumstances of such urgency and where both defence counsel and the trial Judge were thrust unawares into a position of having to deal with the Prosecutor's submissions. 4. Once the trial Judge indicated his intention to discharge the jury, Senior Counsel sought a stay of the decision in order to approach this Court. His Honour sent the jury away (until Friday, 12 March 2021) to allow this course to be taken. This approach accords with previous decisions of this Court: see, for example, Barber v R; Zraika v R [2016] NSWCCA 125 at [49] and R v Lamb; R v Mason; R v Hill [2016] NSWCCA 135 at [35] ("R v Lamb"). 5. Generally, an intermediate appellate Court is cautious in interfering with the decision of a trial Judge to discharge a jury: see, for example, R v Lamb at [39]. Because the decision involves the exercise of judicial discretion, "only House v The King error will suffice to overturn a decision of this kind": R v Lamb at [36]. Further, the decision is made in circumstances where "the trial judge would have been in an immeasurably better position than we [are] to judge the atmosphere in the courtroom at the time when the decision needed to be made": R v Lamb at [40] citing Crofts v The Queen (1996) 186 CLR 427 at 458 (Dawson J) and 464 (Toohey, Gaudron, Gummow and Kirby JJ); [1996] HCA 22 and Trieu v R [2012] NSWCCA 169 at [28]. 6. However, in the unusual circumstances of this case, this Court should intervene for a number of reasons. 7. First, a decision to discharge a jury should not be taken lightly even where, as here, the trial was of relatively short duration. As it is, a full week of Court time had been occupied by the case - the trial having entered its sixth day. The parties had apparently conducted their cases efficiently and the trial has very nearly reached its conclusion. Second, the decision to discharge the jury arose in the absence of any application by either party. Third, the application was opposed by the applicant who is represented by Senior Counsel experienced in the criminal law. Fourth, the "simple solution" proposed by Senior Counsel was a sensible one for the Prosecutor to consider. Fifth, and alternatively, clear directions to the jury are available to ensure the jury does not use the relevant evidence in an impermissible way. It is well established that juries ordinarily obey the directions of the trial Judge: see, for example, Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 at [31] – [32] (McHugh J). This is not a case where no "anti-tendency" direction will be given: cf Hamilton (a pseudonym) v R at [43] (Macfarlan JA, dissenting in the outcome) and [105]-[113] (Beech-Jones J, analysing the circumstances where such directions may not be required). I note, in passing, that special leave has been granted against the decision of the majority in Hamilton (a pseudonym) v R: see Hamilton v The Queen [2021] HCATrans 19. The matter having been raised squarely, it can be expected that a strong warning will be given to the jury. Sixth, one reason for the discharge appears to be to allow the Prosecutor to conduct a tendency or coincidence case at a subsequent trial in circumstances where no such case has previously been in contemplation: cf, for example, R v Grand (1903) 3 SR(NSW) 216 at 227. Finally, the applicant is entitled to have the proceedings come to a conclusion. 8. In the circumstances, the decision to discharge the jury was unreasonable or plainly unjust. Insofar as the reasoning can be discerned from the transcript of the argument, it appears the trial Judge allowed extraneous or irrelevant matters to guide the decision, namely the desire to allow the Prosecutor to put a tendency or coincidence case in circumstances where no notice was previously given to conduct such a case. "House v The King error" has been established and the decision to discharge the jury should be vacated. 9. I would make the following orders: 1. Leave to appeal granted. 2. Appeal allowed. 3. Vacate the order to discharge the jury. 4. Remit the matter to the District Court for the trial to continue on Friday, 12 March 2021. 1. MACFARLAN JA: I agree with Justice Hamill. I would add only that in this Court the Prosecution did not advance argument to support the trial Judge's order for discharge of the jury. 2. WALTON J: I agree the judgment of Justice Hamill and the additional note of the presiding Judge.

**********

Amendments 16 March 2021 - Amended to note judgment Ex Tempore 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: 16 March 2021