Profilio v R [2024] NSWCCA 219

Profilio v R [2024] NSWCCA 219

The trial judge's direction to the jury failed in a fundamental respect by not informing them of the possibility of discharge if unanimity could not be reached, contrary to established requirements (Black direction). This failure gave rise to a miscarriage of justice, warranting the conviction to be quashed and a new trial ordered.

Parties
Applicant: Tyson Profilio; Respondent: Rex (Crown)
Jurisdiction
Australia
Judgment Date
02 December 2024
Procedural Posture
Criminal Appeal / Court of Criminal Appeal (leave to Appeal and Appeal Judgment)
Outcome
Appeal allowed (in part); conviction quashed on count 1; new trial ordered on count 1
Legal Topics
Appeal Against Conviction, Jury Directions, Unreasonable Verdict, Black Direction, Markuleski Direction
Criminal Law Appeal Against Conviction Jury Directions Unreasonable Verdict Black Direction Markuleski Direction

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Parties

Tyson Profilio

Applicant

Rex (Crown)

Respondent

Procedural Posture

Criminal Appeal / Court of Criminal Appeal (leave to Appeal and Appeal Judgment)

Legal Issues

  1. 1 Whether the trial judge failed to properly direct the jury regarding the prospect of disagreement and possible outcomes of deliberations (Black direction)
  2. 2 Whether the trial judge failed to give a Markuleski direction
  3. 3 Whether the verdict of guilty in relation to count 1 is unreasonable and cannot be supported having regard to the evidence and the verdict of not guilty on count 2

Ratio Decidendi

The trial judge's direction to the jury failed in a fundamental respect by not informing them of the possibility of discharge if unanimity could not be reached, contrary to established requirements (Black direction). This failure gave rise to a miscarriage of justice, warranting the conviction to be quashed and a new trial ordered.

Court Disposition

Appeal allowed (in part); conviction quashed on count 1; new trial ordered on count 1

Orders

  • Grant leave under r 4.15 for the applicant to rely on ground 1.
  • Refuse leave under r 4.15 for the applicant to rely on ground 2.