Harafias v R [2016] NSWCCA 268

Harafias v R [2016] NSWCCA 268

The trial judge's written direction and oral reference to it wrongly stated the second condition for statutory self-defence by using the former common law requirement of reasonable grounds for the belief that the conduct was necessary, rather than asking whether the appellant's conduct was a reasonable response in the circumstances as he perceived them. There was a real possibility the jury deliberated by reference to that error or were confused. The error was substantial and leave under r 4 should be granted. Because it was open on the evidence for a properly instructed jury to entertain a reasonable doubt as to whether the appellant believed biting Mr Zervas was necessary in...

Jurisdiction
Australia
Judgment Date
01 December 2016
Procedural Posture
Criminal Conviction Appeal / Application for Leave to Appeal and Appeal Against Conviction in the Court of Criminal Appeal
Outcome
Leave to appeal granted; appeal against conviction allowed; conviction quashed; new trial ordered.
Legal Topics
['conviction Appeal' 'self Defence' 'jury Directions' 'grievous Bodily Harm With Intent' 'proviso' 'new Trial']
['criminal Law' 'criminal Procedure'] ['conviction Appeal' 'self Defence' 'jury Directions' 'grievous Bodily Harm With Intent' 'proviso' 'new Trial']

Case Brief

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Procedural Posture

Criminal Conviction Appeal / Application for Leave to Appeal and Appeal Against Conviction in the Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the trial miscarried because the trial judge misdirected the jury as to an element of self-defence.' 'Whether leave should be granted under Criminal Appeal Rules (NSW), r 4 despite no complaint having been made at trial about the summing up.' 'Whether the proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW) applied because no substantial miscarriage of justice actually occurred.']

Ratio Decidendi

The trial judge's written direction and oral reference to it wrongly stated the second condition for statutory self-defence by using the former common law requirement of reasonable grounds for the belief that the conduct was necessary, rather than asking whether the appellant's conduct was a reasonable response in the circumstances as he perceived them. There was a real possibility the jury deliberated by reference to that error or were confused. The error was substantial and leave under r 4 should be granted. Because it was open on the evidence for a properly instructed jury to entertain a reasonable doubt as to whether the appellant believed biting Mr Zervas was necessary in...

Court Disposition

Leave to appeal granted; appeal against conviction allowed; conviction quashed; new trial ordered.

Orders

  • ['Grant leave to appeal.' 'Appeal against conviction allowed.' "Quash the appellant's conviction of the offence charged in the indictment dated 29 June 2015." 'Order that there be a new trial.']