Hamide v R

BATHURST CJ: I have had the advantage of reading the judgment of the President in draft. His Honour has set out the facts and it is unnecessary to repeat them. I agree with the orders proposed by him and subject to what I have written below with his reasons.

However, I wish to deal with two issues. First, whether to succeed on an appeal on the ground of miscarriage of justice arising from the failure to discharge the jury, it is necessary to show error in the sense described in House v The King (1936) 55 CLR 499; [1936] HCA 40; and second, whether any conclusion on this ground should be based on the jurisprudence concerning the proviso to s 6(1) of the Criminal Appeal Act 1912 (NSW).

Section 6(1) of the Criminal Appeal Act is in the following terms:

Subject to the proviso, it can be seen that the Court has power to set aside a conviction in three types of cases:

In Maric v The Queen (1978) 52 ALJR 631, Gibbs CJ emphasised at 634-635 that when a trial judge has refused an application to discharge a jury, and the accused has been convicted, the appeal is “not against the failure to discharge the jury but against the conviction”. His Honour, with whom Mason and Jacobs JJ agreed, went on to say that he could not see any justification in dealing with appeals in such cases on any different principles than those which apply in criminal appeals generally.

That, with one qualification, was the approach adopted in Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22 (Crofts). In that case, the plurality made the following remarks at 440-441:

Dawson J, although in dissent, made the following comment at 432:

The qualification is, as Bell P has pointed out, that the plurality stated what was required was “the risk of a substantial miscarriage of justice” rather than a “miscarriage of justice” as referred to in s 6(1). Two things follow. First, if the conclusion was reached that there was a risk of substantial miscarriage of justice in failing to discharge the jury, it was not necessary to find any separate error of law in the House v The King sense. Second, if the failure to discharge the jury led to such a risk, there does not seem to be any room for the operation of the proviso to s 6(1).

The two cases lending principal support to the proposition that to succeed on this ground of appeal it was necessary to show error in the House v The King sense are Curran v R [2017] NSWCCA 123 and Barber v R; Zraika v R [2016] NSWCCA 125 (Zraika). Each of these cases involved appeals under s 5G of the Criminal Appeal Act which empowers the Court of Criminal Appeal to review a decision of a trial judge to discharge a jury. Section 6(1) of the Act has no application to cases of this nature. Indeed s 5G(4) expressly preserves the right of appeal under s 6(1) if leave to appeal under s 5G is refused and a subsequent conviction ensues. It follows from Crofts that in an appeal under s 6(1) when the appellate court will have the complete record of the trial before it, there is no necessity to find a separate error of law once it is shown that a failure to discharge the jury led to “risk of a substantial miscarriage of justice” in the sense described by the plurality in Crofts.

The difference may not be significant. As the Court pointed out in Zraika at [24], error in the House v The King sense could include the exercise of a discretion which was unreasonable or plainly unjust.

Unlike Bell P, I do not think the jurisprudence on the proviso to s 6(1) arising from Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 and subsequent cases on the issue including, most recently, Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92; [2012] HCA 14; Kalbasi v Western Australia [2018] HCA 7; 92 ALJR 305 and Lane v The Queen [2018] HCA 28; 92 ALJR 689 (Lane), mandates the approach to be taken in cases of this nature. Subject to one reservation, the approach in Crofts which has not been the subject of criticism in this area should be followed where a conviction is sought to be set aside on the ground of miscarriage of justice arising from the failure to discharge a jury.

The only reservation is that there may be circumstances where a failure to discharge a jury leads to circumstances where the accused was deprived of a fair trial, that is a trial according to law. If the failure to discharge the jury affected the process of the trial sufficiently to warrant a conclusion that a “substantial miscarriage of justice” has occurred without the need for an inquiry into its effect on the outcome of the trial, then the appeal will be allowed: See Lane at [53] per Gageler J.

Subject to these matters, I agree with Bell P.

BELL P: After a trial before Berman SC DCJ and a jury in the District Court between 28 November and 7 December 2017, Mr Omar Hamide was convicted on two counts namely that:

Mr Hamide seeks leave to appeal against his conviction. In light of the reasons that follow, leave should be granted, and I shall refer to him in the balance of these reasons as the appellant.

The single ground of appeal is that “a substantial miscarriage of justice was occasioned as a result of irregularities in the evidence at the appellant’s trial prejudicial to his interests, and the trial judge’s failure to discharge the duty.” It may at once be noted that, whereas the ground of appeal refers to a “substantial miscarriage of justice”, s 6(1) of the Criminal Appeal Act 1912 (NSW) (the Criminal Appeal Act) provides that an appeal shall be allowed if a “miscarriage of justice” occurred, subject to the operation of the proviso. The epithet “substantial” may have been added to anticipate the possible invocation of the proviso to s 6(1) or may simply have been picking up the language used in the plurality judgment in Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22 at 441 (Crofts), to which I will return.

As will be explained below, there were three applications to discharge the jury in the course of the trial which resulted in formal rulings by the primary judge. Those applications were thrice denied.

It was the appellant’s submission that the trial judge’s refusal to discharge the jury on the third application risked a substantial miscarriage of justice. That having been said, the “irregularities” which occasioned the first two unsuccessful applications for a discharge, together with particular descriptions of the appellant by one of the Crown witnesses, were said in argument to have contributed to the circumstances which meant, on the appellant’s case, that a substantial miscarriage of justice was occasioned by the third refusal.

Reference was also made to what was in effect a fourth application for discharge, made not long after the third discharge application. I say “in effect” because, as shall be seen at [63]−[65] below, it was not in terms so characterised and was at best implicit. The primary judge did not formally rule on this implicit application but indicated, mistakenly it would appear, that he had taken into account the matters said to have warranted discharge on this application in making his formal ruling on the third application.

It is necessary to trace the course of the trial with particular focus on: the four unsuccessful applications for discharge; the trial judge’s reasons for rejecting those applications; the direction given by the trial judge following on and occasioned by the second application for discharge; the apparent mistake with regard to the fourth discharge application and the summing up to the jury. Following this review, the relevant principles of law are identified and their application to the facts of the present case is addressed.

The appellant’s parents resided in Proctor Parade, Sefton.

In November 2013, Mr Ayoub lived at an address in Bass Hill. His partner, Eman El Zamtar, and their children lived with her parents at an address in Proctor Parade, Sefton. The appellant was the cousin of Mr Ayoub’s partner and her brother, Mr El Zamtar.

Mr Ayoub was stabbed in the late afternoon of 8 November 2013 and was observed lying stomach down in the front yard of the appellant’s parents’ property in Proctor Parade by police at about 5.30pm that day. Mr Ayoub told police that he had been attacked by “an Islander and two Asian” men who drove away in a Toyota Corolla. He was taken to Liverpool Hospital and was treated that night to control the bleeding from the stab wound, being a 3cm deep laceration to his lower back which breached both epidermis and dermis layers of skin.

On the following morning, police prepared a handwritten statement as to what Mr Ayoub, then in hospital, told them about the assault which was broadly consistent with what he had said to them the previous day (although in this statement, he referred to there being two Islanders and one Asian man). Mr Ayoub signed this statement which was to the effect that on the previous afternoon he had been on his way to a park nearby to Proctor Parade when he was approached by three males, two of whom were Islanders. He offered a description as to their build, approximate age, appearance and clothing. He also identified a third person as an Asian male and also gave a description as to his approximate age, appearance and clothing. The statement continued, as follows:

Significantly in his statement Mr Ayoub said that, although the incident happened outside the Proctor Parade home of the appellant’s parents, he had “not spoken [to] or seen [the appellant] for months” and that “we’re not friends but if we see each other we say hello”. He said that he did not see the appellant or any of his family on the day of the stabbing.

Shortly before midnight on 9 November 2013, that is to say the day following the stabbing, a then anonymous source nominated the appellant as a person of interest in relation to the stabbing by making a report to Crime Stoppers.

In the course of his evidence during the trial, Mr El Zamtar gave evidence in chief that he visited Mr Ayoub in hospital in the early morning of 9 November 2013 and was told by Mr Ayoub that “Omar Hamide [the appellant] stabbed me… But I didn’t tell the police that.”

Mr El Zamtar said in his evidence that that day he made an anonymous complaint to Crime Stoppers reporting that the appellant was a person that they should look at in relation to the stabbing. This evidence was corroborated by other evidence from police at the trial, confirming the anonymous complaint to Crime Stoppers on the evening of 9 November 2013 and that it accorded with Mr El Zamtar’s account of it.

Mr El Zamtar also gave evidence that in August 2014, the appellant solicited him to murder Mr Ayoub. That evidence, to which I will refer in more detail later in these reasons, was foundational to the second of the counts upon which the appellant was convicted.

In September 2014, some 10 months after Mr Ayoub was stabbed and had provided his initial statement to police, he and Mr El Zamtar provided statements to the police implicating the appellant as the person who had in fact stabbed Mr Ayoub. The appellant was not located by police until 2016 and the date of the indictment was 27 November 2017.

The main witnesses in the Crown’s case were Mr Ayoub, Mr El Zamtar and Eman El Zamtar.

Evidence was also given by a Natasha Micallef (Ms Micallef) and a Wyette Hancock (Ms Hancock), both of whom had been driving on Proctor Parade on the afternoon of 8 November 2013. Ms Micallef had told police she had observed about 10 males of Middle Eastern appearance in the street and heard loud yelling although she was less certain when giving evidence in the trial as to the ethnicity of the males she observed. She gave evidence that she observed some form of assault by one male upon another male of similar Middle Eastern appearance but did not recognise the appellant as having been one of the men she observed on that day. Ms Hancock gave evidence that she saw a group of men and that, whilst she did not see their faces, they appeared to be Lebanese. She also did not recognise the appellant as having been one of the men she observed on that day.

There was also some brief but, for the purposes of the appeal, significant evidence from a Detective Senior Constable Danielle Rogerson (Detective Rogerson). That is referred to at [54]−[55] below.

Mr Ayoub gave evidence that he had known the appellant for about 10 or 11 years as at November 2013 and that he had also known another person by the name of Amin El Mir (Mr El Mir) for about the same period. Mr Ayoub gave evidence of a fight between Mr El Mir, a close friend of the appellant, and another unnamed person who Mr Ayoub knew. Mr Ayoub said that on the afternoon he was stabbed but before the stabbing, he had heard about this fight and had rung the appellant “to fix a problem up” and that he had said to the appellant that “we, you know, got to get together and sort out this problem for him, got to help him”. He went on to say that the appellant had first responded that he was not getting involved but had then said “okay, let’s just meet up” and that they had agreed to meet at Ms El Zamtar’s parents’ house in Proctor Parade. Mr Ayoub said that he was at Bass Hill Plaza when this telephone call occurred and that he thereafter drove to Proctor Place and initially saw the appellant in a car turning into Proctor Parade with two other people including Mr El Mir.

Mr Ayoub said that the appellant did not turn up at his partner’s parents’ house in Proctor Parade as had originally been arranged but that, after a further phone call, he agreed to meet at the appellant’s parents’ house and walked there. He said that there were about seven “blokes” together with the appellant standing on the verandah. He said that he spoke to Mr El Mir who had been bashed and had some bruises to his face. Mr Ayoub said that Mr El Mir had said that he wanted to fight “him”. I interpolate that the “him” was not identified but was presumably Mr El Mir’s assailant. Mr Ayoub then said “no, we should like – you should be friends.” He then said that Mr El Mir said, “I want to shoot him, I want to shoot him.” Mr Ayoub described Mr El Mir as being pretty angry at this point. There then followed this passage of Mr Ayoub’s evidence:

Mr Ayoub said he started running after he had been stabbed and that he was followed by, amongst others, Mr El Mir. Mr Ayoub gave some evidence about a number of the men standing around him and that the appellant was saying “Fucking kill him, kill him, let’s get him, fucking kill him”.

It then appears that Mr Ayoub lost consciousness and that when he came to people were preparing to take him to hospital. He also said that he could remember the appellant saying not to go to the police “or we’ll get you” whilst he was being kicked.

Mr Ayoub then gave evidence that the police came and the police officer asked him who had stabbed him but that he, Mr Ayoub, lied to the police officer, coming up with the story that it was two Islanders and an Asian.

There was then this passage of evidence:

Mr Ayoub gave evidence that, whilst he was in hospital, he was visited by Mr El Zamtar and that he told him the truth about what had happened. It will be recalled that he had previously told a false story to the police.

Mr Ayoub then gave evidence that, in September 2014, Mr El Zamtar told him that the appellant had offered to pay him money to have Mr Ayoub killed. Mr Ayoub said it was this that caused him to go to the police and provide them with a statement as to what he said in truth occurred when he was stabbed. There then followed this passage of evidence:

In his evidence in chief, Mr Ayoub explained that he had initially lied to the police as to the identity of his assailant because he was scared of the appellant. He explained, however, that he went to the police in September 2014 because he had been told by Mr El Zamtar that the appellant was trying to kill him.

Part of Mr El Zamtar’s evidence, in relation to his report to Crime Stoppers on the evening of 9 November 2013, has already been referred to at [28] above. Mr El Zamtar also gave evidence that some time after the stabbing, outside a restaurant at Chester Hill on a public holiday, he had met with the appellant and asked him why he had stabbed Mr Ayoub. Mr El Zamtar’s evidence was that, on this occasion, the appellant asked him if Mr Ayoub was going to the police but that he, Mr El Zamtar, assured the appellant that Mr Ayoub had given the police the false story about the Islanders and an Asian being responsible for his stabbing.

In a significant passage relevant to the solicit to murder charge upon which the appellant was convicted, Mr El Zamtar reported that he had subsequently received a phone call from the appellant asking him to meet. Mr El Zamtar reported that they met at the appellant’s house at Campbell Hill Road, Chester Hill and that, in a conversation there, he was again pressed by the appellant as to whether or not Mr Ayoub would or had gone to the police. Mr El Zamtar suggested that the appellant should pay “blood money” to Mr Ayoub to sort the matter out but that he refused. Mr El Zamtar then gave the following evidence:

In the course of Mr El Zamtar’s evidence in chief, the following exchange occurred:

At the conclusion of the evidence in chief, defence counsel applied to discharge the jury by reason of Mr El Zamtar’s reference in his evidence to “runners” in the passage set out above. The brief argument in support of and in opposition to this application was as follows:

The application was refused by the trial judge who stated his reasons as follows:

The trial judge gave no directions to the jury in relation to the reference to “runners” or what was said to be implied from its use. No complaint per se is made in relation to that, and the trial judge no doubt considered that to do so may only have drawn unnecessary attention to the matter and compounded the situation in relation to which defence counsel had complained.

Mr El Zamtar’s cross-examination then commenced. He was obviously a critical witness. He was asked about his suggestion to the appellant that he pay Mr Ayoub “blood money” and agreed that it was often referred to as “haqq.” There then followed this passage of evidence:

Following this evidence, defence counsel made a second application to the trial judge to discharge the jury, complaining about non-responsive answers to questions:

The trial judge again refused the application:

Following the judgment on the discharge application, the jury were given the following direction by the trial judge:

Again, no complaint per se is made in relation to the trial judge’ refusal to discharge the jury on this occasion or as to the appropriateness of his Honour’s direction to the jury.

After Mr El Zamtar’s evidence concluded, evidence was given by Detective Rogerson who had been stationed at Bankstown Police Station in 2013. It was this witness who corroborated the receipt of the anonymous identification of the appellant to Crime Stoppers on the evening of 9 November 2013. It was also Detective Rogerson who witnessed statements given to the police by Mr El Zamtar and Mr Ayoub in September 2014. Immediately after these statements had been marked for identification, Detective Rogerson was asked the following series of questions by the prosecution:

Shortly after this exchange, defence counsel commenced his cross-examination of Detective Rogerson which finished relatively briefly and was followed by some exchanges between the judge and counsel as to what remained to be dealt with and what were the estimates for addresses in the event that the appellant did not go into evidence. Proceedings adjourned early that day, prior to the lunch adjournment.

On the following morning but after further exchange between bench and bar and the tender of some further evidence, defence counsel made the third application for discharge of the jury. The relevant argument before the trial judge was brief and was as follows:

This further exchange should also be noted:

The trial judge delivered the following ruling:

The reference to the “Middle Eastern Organised Crime Squad” was struck from the transcript before it was provided to the jury in the course, and for the purposes, of its deliberation.

The next witness in the Crown case was Eman El Zamtar. She gave evidence that on the afternoon of 8 November 2013 she and Mr Ayoub and their children were driving back to her parents’ home in Proctor Parade when Mr Ayoub received a phone call from the appellant which she could overhear and in which the appellant said “Are you coming, are you coming? I’ll meet you at my dad’s”. It will be recalled that the appellant’s parents also lived in Proctor Parade. She gave evidence that Mr Ayoub then replied “Yeah, I’m on my way now” and the appellant then said “Good, cause we’ve got to sort this out before it gets any bigger.” She gave evidence that after they arrived at her home in Proctor Parade, she saw the appellant together with two other men crossing the street and going to the appellant’s parents’ house in Proctor Parade.

For present relevant purposes, in the course of cross-examination by defence counsel, Eman El Zamtar was asked about a series of mobile phone calls on the first day of the trial between herself and her brother Ahmed who I have referred to in these reasons as Mr El Zamtar. After being taken through a log of mobile calls, this exchange occurred:

This evidence was given around lunchtime, before the Court adjourned for the weekend on Friday 1 December 2017.

On the morning of Monday 4 December 2017, counsel for the defence asked to take the judge “back to the sorites paradox, what your Honour referred to as the bald man paradox.” The “bald man paradox” was referred to by the primary judge in the passage of argument set out at [56] above. The “sorites paradox” is also known as the paradox of the heap, the conundrum of “when, as between two heaps of grain, one large and one small, does the large one cease to be large, and the small become large, if a grain from time to time is taken from the one and added to the other”: see Brown v Bowden (1900) 19 NZLR 98 at 102. Defence counsel then said, in the language of the latter paradox, “if I can take another grain of sand off the heap” and referred to the passage extracted at [61] above, submitting that it had “a colour about it.” Whether there be any difference between the two paradoxes referred to, the point that both the trial judge and counsel for the defence were making concerned the cumulative effect of successive prejudicial events in the trial.

The trial judge then said:

It is plain enough that, although no discharge application was made in terms, the trial judge treated one as having been made. It is also plain that the trial judge was mistaken as to the sequence of the evidence about the fire and the third discharge application. Curiously, defence counsel was also mistaken because he did not correct the trial judge’s statement as to timing and indeed acquiesced in what his Honour had said about the sequence of the evidence. It is to be noted that the impugned evidence was given shortly after the ruling on the third discharge application, and both had occurred in the previous week of the trial.

It should also be noted that the exchange set out at [64] above was the last “ruling” in the case prior to jury addresses and the summing up.

Counsel for the Crown addressed relatively briefly. The salient features of the address were as follows:

It should be noted that it was no part of the Crown’s address that the appellant was a drug dealer, involved with drugs or any other criminal activity. Nor was there any mention of “runners” or any reference to the Middle Eastern Organised Crime Squad.

Obviously enough, defence counsel’s address contained no reference to any of these matters either. What was noted in the defence address to the jury, however, was the evidence in relation to “haqq” which has been extracted at [44] and [49] above. Defence counsel said:

A little later in his address he said:

Defence counsel continued:

A strong attack was made on the credibility of Mr Ayoub, Mr El Zamtar and Eman El Zamtar with defence counsel putting to the jury that they needed to be sure of the truthfulness of these witnesses before they could enter a conviction.

The trial judge then summed up for the jury over the course of a little over an hour. No criticism is made of the summing up on this appeal. In the course of his summing up, the trial judge said:

The jury deliberated over the course of four days before returning its verdict.

Appeals from convictions on indictment are only as of right if the grounds relied upon involve questions of law alone. In all other cases, leave must be granted to appeal from a conviction on indictment: the Criminal Appeal Act s 5(1).

The appellant’s sole ground of appeal, as noted at [16] above, is that a substantial miscarriage of justice was occasioned as a result of irregularities in the evidence at the appellant’s trial prejudicial to his interests, and the trial judge’s failure to discharge the jury.

A decision not to discharge a jury is not, “in the strict sense”, a decision on a question of law: R v TS [2004] NSWCCA 38 at [117] (TS). Rather, it is an exercise of a discretionary power: Crofts at 440-441; Santo v R [2009] NSWCCA 269 at [51]; Trieu v R [2012] NSWCCA 169 at [21] (Trieu); R v Ahola (No 6) [2013] NSWSC 703 at [18] (Ahola). Accordingly, the appellant required leave to appeal from his conviction. As noted at [15] above, that leave should be given.

It should be emphasised, however, that the appeal “is not against the failure to discharge the jury but against the conviction”: Maric v The Queen (1978) 20 ALR 513 at 520; (1978) 52 ALJR 631 (Maric); see also Samadi v The Queen [2008] NSWCCA 330; 192 A Crim R 251 at 278 [134] (Samadi).

The starting point for determining this appeal is therefore the same as any other appeal from a conviction on indictment – namely, the terms of s 6(1) of the Criminal Appeal Act: Maric at 520 (ALR); 634-5 (ALJR); Samadi at 278 [134]; Trieu at [26], cited in Scott v R [2017] NSWCCA 296 at [186] (Scott). That section provides that:

In [16] of these reasons, I drew attention to the appellant’s use of the phrase “substantial miscarriage of justice” in his Notice of Appeal. In Crofts, which was an appeal from a decision of the Victorian Court of Criminal Appeal, the majority said at 441:

In 1996 when Crofts was decided, the Victorian provision governing the determination of conviction appeals (s 568 of the Crimes Act 1958 (Vic)) was in terms that were relevantly similar to s 6(1) of the Criminal Appeal Act. Specifically, the provision distinguished between a miscarriage of justice and substantial miscarriage of justice in the same way that the current NSW legislation does.

In oral submissions, the Crown submitted that the use of the language of “risk of substantial miscarriage of justice” in the passage from Crofts extracted at [80] above, “conflates the proviso test with the miscarriage test”. In Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 (Filippou), the High Court paid close regard to the words of s 6(1) of the Criminal Appeal Act, distinguishing between the question of whether there has been a miscarriage of justice, and whether there has been a substantial miscarriage of justice: Filippou at 54-5 [15].

On its terms, s 6(1) distinguishes between a “miscarriage of justice” and a “substantial miscarriage of justice”. The attention to statutory language in Filippou has been a consistent feature of the High Court’s recent jurisprudence on the common form criminal appeal statutes: see, for example, Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68 at 256 [12]; Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 at 305 [9], 312-3 [31] (Weiss); Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92; [2012] HCA 14 at 102 [21] (Baiada).

Whether Crofts involves some conflation, as the Crown submitted, need not be resolved in the present case, even if that were an appropriate task upon which this court, as an intermediate court of criminal appeal, could embark, because of the way in which the ground of appeal is formulated. In this context, the Crown’s non-invocation of the proviso in the present case may well have been in recognition of the fact that, if the ground of appeal were made out, the appellant would have established that a substantial miscarriage of justice occurred (cf. Filippou at 54-5 [15]).

In R v Birks (1990) 19 NSWLR 677 (Birks) at 685, Gleeson CJ said that “[a] Court of Criminal Appeal has a power and a duty to intervene in the case of a miscarriage of justice, but what amounts to a miscarriage of justice is something that has to be considered in the light of the way in which the system of criminal justice operates.”

Gleeson CJ later observed in Nudd v The Queen [2006] HCA 9; 225 ALR 161 at 164 [7]; 80 ALJR 614 at 618 [7] (Nudd) that:

The criminal justice system in its practical operation is not perfect, and it must be remembered and appreciated that a fair trial is not synonymous with a perfect trial: R v Edwards [2009] HCA 20; 255 ALR 399 at 405 [31]; Moubarak by his tutor Coorey v Holt [2019] NSWCA 102 at [89].

In R v Abou-Chabake [2004] NSWCCA 356; 149 A Crim R 417, Kirby J (with whom Mason P and Levine J agreed) said at 428 [63]:

The appellant bears the onus of showing that his convictions were affected by a miscarriage of justice (Driscoll v The Queen (1977) 137 CLR 517 at 526; [1977] HCA 43 (Driscoll); Samadi at 278 [135]), though it is, of course, ultimately for the court “on its own review of the evidence to be satisfied that a miscarriage has occurred”: Driscoll at 526.

The appellant does not bear an onus to show that the miscarriage was substantial (although that is the task the appellant appears to have assumed for himself by the terms of the Notice of Appeal: see [16] above). It may be that the reason for the formulation of the ground of appeal recognises the matter observed in Filippou at 54-5 [15], namely that at least as concerns the third limb of s 6(1) of the Criminal Appeal Act, if an appellate court determines that the appellant has not received a fair trial, it will follow that it has concluded that there has been a substantial miscarriage of justice.

In circumstances like those at hand, an appellant will have shown that a miscarriage occurred if he or she can satisfy the Court that, as a result of the trial judge’s refusal of the discharge application or applications, he or she may have “lost a chance which was fairly open to him [or her] of being acquitted”: Mraz v The Queen (1955) 93 CLR 493; [1955] HCA 59 (Mraz) at 514 (Fullagar J); see also TS at [118] and Samadi at 277-8 [133], [135].

Though, as noted, this is not a case where the proviso to s 6(1) arises for direct consideration, in light of the way in which the appeal ground was framed, some guidance as to what constitutes a “substantial miscarriage of justice” may nonetheless be gleaned from the jurisprudence on the proviso.

Whilst loss of a chance of acquittal that was fairly open may amount to a miscarriage of justice, that possibility does not mean or require a conclusion that the miscarriage of justice was substantial. So much follows, in my view, from the following passage in Weiss at 314 [36]:

Where what is being considered is whether a substantial miscarriage of justice (relevant in the present case by reason of the terms of the Notice of Appeal – see [16] above) occurred, Weiss at 315 [39] sets forth three fundamental propositions that “must not be obscured”. These are:

Without being prescriptive or exhaustive, the cases establish that in assessing whether there has been a substantial miscarriage of justice:

The question of whether or not a substantial miscarriage of justice occurred in the present case is also informed by a consideration of the principles relating to discharge of a jury and the approach properly to be taken by appellate courts on review of failures so to do. Before turning to consider those principles, it is necessary to consider the concept of “irregularities” which is employed in the appellant’s Notice of Appeal.

Various terms are used in the cases on miscarriages of justice to describe the kinds of events in trials that can give rise to a miscarriage. The multiplicity of verbal formulae is unsurprising; as Gleeson CJ noted in Nudd at 163 [6] (ALR); 618 [6] (ALJR), “it is impossible and undesirable to attempt to reduce miscarriages of justice to a single formula.”

In Crofts (at 440-1), there are references to “an inadvertent or potentially prejudicial event”, “slips”, “mishap[s]”, and “conduct”. There is also a reference to the particular event that occurred in Crofts, namely “the admission of … inadmissible evidence”. In Miller v R [2015] NSWCCA 206; 252 A Crim R 486 (Miller) at 511, that event is recast in terms of “the statements said to have given rise to the prejudice”, and the Court, citing Maric, also referred to “wrongly admitted evidence”. In Ahola, Button J referred to “the accidental receipt of prejudicial material” (at [17]).

Many other cases refer compendiously to “irregularities” (see, eg: Maric; Wilde v The Queen (1988) 164 CLR 365; [1988] HCA 6 (Wilde); R v Marsland (NSWCCA, 17 July 1991, unreported) (Marsland); R v Young & Phipps (NSWCCA, 31 October 1995, unreported) (Young & Phipps); Webb v The Queen (1994) 181 CLR 41; [1994] HCA 30 (Webb); Weiss; Qing An v Regina [2007] NSWCCA 53 (Qing An); Younan v R [2016] NSWCCA 248; 316 FLR 122 (Younan)).

The term ‘irregularities’ has no fixed meaning beyond being a general term to describe a departure from the ‘regular’ course of a criminal trial. And what is meant by the ‘regular’ course of a criminal trial can only be understood in historical and systemic context: see, for example, Mraz at 514 and Birks at 685.

Not every irregularity will be prejudicial, and not every prejudicial piece of evidence will be irregular. There is prejudice, and there is unfair prejudice: Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 at 325 [91]. Prejudicial evidence will have the quality of unfairness where there is a real risk that the evidence will be misused by the jury in some unfair way: R v BD (1997) 94 A Crim R 131 at 139 per Hunt CJ at CL.

Though not directly concerned with the meaning of ‘irregularity’, the following passage from Wilde is a clear example of the use of ‘irregularity’ as a general term for describing departures from the normal course of a criminal trial. At 373, Brennan, Dawson and Toohey JJ said:

Events described as ‘irregularities’ come in many different forms.

Maric was an application for special leave to appeal brought by Angelo Maric from a decision of the New South Wales Court of Criminal Appeal, dismissing his appeal against his convictions for three charges relating to explosions in George Street, Sydney in September 1972. The main ground of appeal in the Court of Criminal Appeal and in the High Court was that inadmissible evidence of a prejudicial kind had been placed before the jury. A majority of the Court of Criminal Appeal had held that no substantial miscarriage of justice had occurred, and had dismissed the appeal. The evidence in question was a witness’ account of conversations he had with a third party, Brbic. In his evidence, the witness stated that Brbic had told him that Maric had done “a good job for him in Sydney”, that the job was done in George Street, and that Maric was good at making bombs. The High Court held that the event described as an irregularity, the wrongful admission of the evidence, was so prejudicial that it amounted to a miscarriage of justice, and that it was impossible to conclude that no substantial miscarriage of justice had occurred: Maric at 520, 522, and 524 (ALR); 635 and 637 (ALJR). Accordingly, special leave was granted, and the appeal was allowed.

Marsland was an appeal brought against convictions for seven charges relating to violent events that occurred over the course of a night in October 1987. Various grounds of appeal were raised, though none were accepted. The event described as an irregularity was the tender of a document which referred to allegations of sexual misconduct committed by the accused that were not the subject of the trial and which disclosed the name of the complainant in relation to those allegations. The jury asked who the named woman was, and why she had not given evidence before them. The trial judge gave a direction to the jury to the effect that they should put the name of that woman out of their minds entirely, and that it was a mistake on the part of the author of the document that her name was there at all. On appeal, Gleeson CJ (with whom Lee CJ at CL and Hunt J agreed) saw no reason to doubt that the jury would have obeyed that direction, and so concluded that the irregularity had not given rise to a miscarriage of justice.

Webb was an appeal from a decision of the South Australian Court of Criminal Appeal which upheld convictions arising from a joint murder trial. Two events that occurred during the trial were described (at 53-4, 62, and 80) as “irregularities” in the High Court. First, a juror requested that a person in the courthouse pass on a bunch of flowers to the mother of the deceased. The trial judge refused to discharge the juror or the jury as a whole, and directed the jury not to be swayed by feelings of sympathy, but rather, to dispassionately weigh the whole of the evidence. The High Court held that the trial judge had erred in his statement of the law regarding when a juror (or the jury as a whole) should be discharged after being involved in an irregular incident. But by majority, the Court held that the trial judge did not err in refusing to discharge the juror (or the whole jury) in this case, and that the detailed direction given by the trial judge in response to the incident was sufficient to overcome any potential prejudice. The second event described as an “irregularity” was the inadvertent disclosure to the jury that one of the accused had previously been in prison. That disclosure occurred during the examination-in-chief of a prosecution witness. The trial judge refused an application to discharge the jury following this disclosure, and gave a direction to the jury to cure any prejudice that it caused. In the High Court, only Deane and Toohey JJ mentioned this incident, and both of them considered that no miscarriage of justice was occasioned in the circumstances: see at 80 and 90.

Young & Phipps was an appeal from convictions entered after a joint trial of two co-accused on charges relating to the theft of tailings that may have contained opals. The event described as an irregularity was inadmissible evidence of a prejudicial kind being placed before the jury. During his summing-up, the trial judge accidentally read statements from a document that had not been admitted to evidence which attributed to one of the accused a reputation of being an opal thief. The trial judge refused an application to discharge the jury, and, significantly, made no direction seeking to cure the irregularity. On appeal, Gleeson CJ (with whom Badgery-Parker and Abadee JJ agreed) was satisfied that the irregularity gave rise to a miscarriage of justice, and the convictions were quashed and retrials were ordered.

In Wilde, the accused was tried on an indictment containing eight counts, including breaking and entering, stealing, and sexual offences. The counts related to three incidents. The event described as an irregularity was the trial judge’s refusal to split the indictment and order separate trials, and relatedly, her direction that evidence concerning two incidents could be used as similar fact evidence to establish the attacker’s identity in relation to a third incident. The accused was convicted on charges relating to the second and third incidents. He appealed, arguing that the irregularity identified occasioned a miscarriage of justice. The New South Wales Court of Criminal Appeal held that the trial judge had erred in allowing evidence relating to the first incident to be admitted in relation to the third incident and in refusing to sever the charges arising out of the first incident, but applied the proviso and dismissed the appeal. In the High Court, the question was whether the Court of Criminal Appeal had erred in applying the proviso. Brennan, Dawson and Toohey JJ considered that, in the context of the trial as a whole, the irregularity was not an error “of a fundamental kind” (so there was scope to apply the proviso), and that the evidence was such that a reasonable jury would inevitably have convicted had the error not been made (so the CCA was right to apply the proviso): see at 374.

Qing An was an appeal against convictions and the sentences imposed following a trial for eight counts of robbery whilst armed with an offensive weapon. The event described as an irregularity was that the jury, in the course of its deliberations, found a syringe in the pocket of the accused’s jacket, an exhibit in the case. Following this discovery, the accused’s solicitor made an application for the discharge of the jury. That application was refused, and the trial judge gave a direction seeking to cure any prejudice that may have been caused. On the conviction appeal, the appellant submitted that the trial judge erred in failing to discharge the jury. Beazley JA (as she was then), with whom Hislop J agreed, held that the directions given by the trial judge were adequate to cure any potential prejudice, and that there was therefore no error in the trial judge’s refusal to discharge the jury.

Clearly enough, not all irregularities will produce a miscarriage of justice, let alone a substantial miscarriage of justice, and the prejudicial effects of some can be cured by appropriate directions: Qing An at [21]−[24]. More than 100 years ago, in R v Grills (1910) 11 CLR 400; [1910] HCA 68 at 410, in a passage cited with approval in Weiss at 308 [17], Griffith CJ noted that

I turn now to consider the more narrowly focused principles concerning trial judges’ decisions relating to the discharge of juries and the approach that appellate courts should take when reviewing convictions said to be compromised by a refusal to discharge a jury.

Crofts is a key authority concerning the exercise of a trial judge’s discretion whether to discharge a jury. It is also a key authority concerning the approach to be taken by an appellate court when a conviction is challenged on the basis that a miscarriage of justice was occasioned by a trial judge’s refusal to discharge the jury.

In an oft-quoted passage, the majority in Crofts (Toohey, Gaudron, Gummow and Kirby JJ) said (at 440-441):

This passage concisely states the principles that guide the exercise of a trial judge’s discretion whether to discharge a jury. Those principles are settled, though it should be emphasised that they are only guiding principles; there is “no rigid rule” prescribing how the discretion should be exercised. In Miller, Beazley P, Fullerton and Hamill JJ summarised the principles as follows (at 510-11 [126]):

Additionally, in Ahola, Button J said at [17] that, on his review of the relevant decisions of the High Court and the New South Wales Court of Criminal Appeal, trial judges are neither required nor encouraged “to take an overly sensitive approach to the accidental receipt of prejudicial material”, as in “many circumstances a direction is an appropriate remedy, not the discharge of the whole jury”. This statement was cited with apparent approval by Beazley P (with whom R A Hulme J and R S Hulme AJ agreed on this point) in Younan at 129 [39].

Subject to one point of clarification, the principles concerning appellate review of a trial judge’s decision to refuse to discharge a jury are also settled.

The starting point is the following passage from the plurality judgment in Crofts (at 441):

In Miller, this Court distilled the principles in the following terms (at 511 [126]):

Additionally, the authorities are replete with statements expressing the trust that our legal system places in juries to follow judicial directions. In The Queen v Glennon (1992) 173 CLR 592; [1992] HCA 16 (Glennon), Mason CJ and Toohey J said at 603:

In the same case, Brennan J (as he then was) said at 614-5:

The point of clarification of principle I referred to in [116] above concerns the relationship between the principles in Crofts and the well-known principles in House v The King (1936) 55 CLR 499; [1936] HCA 40 (House v The King).

In written submissions, the Crown made reference to the decisions of this Court in Curran v R [2017] NSWCCA 123 at [29]−[31] (Curran) and Wilson at [171]−[175]. In Curran, the Court (Beazley P, R A Hulme and Fagan JJ) said at [28]−[31]:

Paragraphs [29]−[31] of Curran were cited as a statement of the “principles in relation to the discharge of a jury” in Wilson at [172] by Walton J (with whom Hoeben CJ at CL and Button J agreed). It was noted there that the same paragraphs from Curran had also been “cited with approval” in Hughes v R [2018] NSWCCA 2 (Hughes) at [35].

Curran was an appeal brought against a decision to discharge a jury, pursuant to s 5G of the Criminal Appeal Act. So too was Barber v R; Zraika v R [2016] NSWCCA 125, the decision which is cited as authority for the proposition in paragraph [29] of Curran. Wilson and Hughes, by contrast, were both, so far as is relevant for present purposes, appeals against conviction under s 5(1).

In the course of argument, the Crown was asked whether it accepted the correctness of the proposition in paragraph [29] of Curran that the Court of Criminal Appeal “may only interfere [with a trial judge’s exercise of discretion whether to discharge a jury] if error is established in accordance with the principles in House v The King”. The Crown did not accept that proposition, and submitted that “[it] seems clear from the decision in Crofts itself that that is not the test.”

So far as appeals under s 5G are concerned, it is readily understandable why an error of the kind identified in House v The King needs to be established before the Court of Criminal Appeal may interfere with the trial judge’s exercise of discretion in discharging the jury. But appeals under s 5G should not be conflated with appeals under s 5(1). Under s 5G, the appeal is against the trial judge’s discretionary decision to discharge the jury. Under s 5(1), the appeal “is not against the failure to discharge the jury but against the conviction”: Maric at 520 (ALR); 634 (ALJR). That difference is fundamental, and grounds the difference in the tests that this Court applies on appeal.

In an appeal against conviction under s 5(1) where one of the grounds is that a miscarriage of justice was occasioned by a trial judge’s refusal to discharge the jury, the relevant principles that this Court should apply in determining that ground are those in Crofts, not those in House v The King, even though a decision not to discharge the jury is a discretionary one. This is because, as I have stated at [126] above, the appeal under s 5(1) is against conviction; it is not against the failure to discharge the jury.

It follows that, in my view, insofar as the statement in Curran at [29] was cited in Hughes and Wilson as articulating the principles applicable to an appeal against conviction on the ground that a miscarriage of justice had been occasioned by the trial judge’s refusal to discharge the jury, those two cases, in endorsing the application of House v The King, do not, with respect, accurately state the law. It should be noted, however, that in neither case does this appear to have affected the outcome as in both cases the relevant grounds of appeal were rejected on the basis that the trial judge had not erred in refusing to discharge the jury.

It is with the above principles in mind that I turn to consider whether or not there was a substantial miscarriage of justice as a result of irregularities in the evidence at the appellant’s trial prejudicial to his interests, and the trial judge’s failure to discharge the jury.

The appellant’s submission was that, by the time of the third discharge application, prejudicial descriptions of the appellant such as “little cocksucker”, “a little fucking backstabbing prick”, “a little shit”, “a little backstabber”; “an evil person” (on three different occasions); and “as having no remorse” (on two occasions) and allusions to the appellant’s involvement in drug running and gang membership and being the object of interest of the Middle Eastern Organised Crime Squad precluded a fair trial.

As to the various descriptions of the appellant proffered gratuitously by various Crown witnesses, given the nature of the case and the allegations, it would hardly be surprising to the jury that Mr Ayoub would have feelings of considerable hostility to the man he had accused of attempting to murder him and subsequently seeking to procure his murder. That these hostile feelings manifested themselves in the strong and at times crude language used by Mr Ayoub which I have highlighted in [130] above did not in my opinion impact on the fairness of the trial nor do I consider that they would have had a prejudicial impact of any materiality on the jury’s view of the accused or his guilt. Indeed, an agitated, fiery, emotional and argumentative witness will often lose credibility with a tribunal of fact. In that context, it may be noted that in relation to Mr Ayoub’s description of the appellant as “that little backstabbing prick”, the trial judge said, in the jury’s presence, “Mr Ayoub, I can see you’re a bit upset, but it’s best if you just tell us what happened calmly and unemotionally, okay” (see [35] above). The trial judge made a similar intervention at a later point in Mr Ayoub’s evidence, with an implicit reprimand and a direction to Mr Ayoub to answer the question: see [41] above.

I am fortified in my view as to the lack of material prejudicial impact of the various terms used by Mr Ayoub to describe the appellant by the fact that no complaint was raised with the trial judge about these terms, one of which (“you little cocksucker”) may have been a term Mr Ayoub attributed to the appellant addressing him, Mr Ayoub, shortly before the stabbing: see [35] above. That evidence could not be described as an “irregularity”.

Turning to the matters underpinning the first discharge application, the immediate background to this application is set out at [44]−[45] above with the short oral argument reproduced at [46]. The focus of the argument was on the use by Mr El Zamtar of the word “runners” which defence counsel said implied a connection with drug running and drug dealing.

The first point to be made is that the evidence given which involved the use of the word “runners” was, in my opinion, responsive to the question asked of Mr El Zamtar. He was asked whether or not he had asked Mr Ayoub why the appellant had stabbed him. He said “yes” and was then asked what Mr Ayoub had said. It was in response to this non-leading question that the reference to “runners” was made: see [45] above. Whilst not in direct speech, the answer was an attempt to convey the gist of what was said. As such, whilst potentially prejudicial (if comprehended in the way asserted by defence counsel, and it is by no means certain that it would have been, as the trial judge held – see [47] above), it is difficult to characterise the evidence complained of as an “irregularity”: it was responsive and relevant evidence, albeit potentially prejudicial, which came out in an answer to a non-leading question.

Further, it is to be noted that the sentence following that in which a reference was made to “runners” began “They’ve both got friend who like do stuff …”. Whilst the syntax of this answer is not a model of English grammar, what it appears to be seeking to convey was not that Mr Ayoub and the appellant were involved with “runners” but that it was a mutual friend who was and who Mr El Zamtar described as a person “who like do stuff”. The stuff was unspecified but for present purposes, whatever it was, it was not “stuff” done by either Mr Ayoub or the appellant.

It is also necessary to give weight, when considering the matters of prejudice underpinning the attack on conviction and the asserted miscarriage, to the trial judge’s assessment of the matter at the time of complaint and with all of the benefits of his familiarity with the course of the trial and the jury empanelled before him. I have quoted the trial judge’s reasons for rejecting the first discharge application at [47] above. In my opinion, his Honour was correct to do so, and the reasons given for so doing were cogent.

Although the trial judge made no direction to the jury immediately after the first discharge application, in point of time the direction he did give following the second discharge application (see [52] above) followed closely upon the rejection of the first discharge application and was expressed by reference to Mr El Zamtar’s evidence in general terms i.e. it did not refer to any specific evidence that had fallen out. In this context, it is to be noted that his Honour had foreshadowed in the penultimate paragraph of his ruling on the first discharge application that the jury would be told to focus on the three specific counts on the indictment, and that it was only by reference to these allegations that they would be told that they could find the appellant guilty. As it happened, they were told this not long after the first discharge application, and a similar direction was made in the summing up.

If, as I consider was the case for the reasons given in [142]-[143] below, the direction to the jury given after the second discharge application had a salutary impact on the trial and the jury’s focus upon the real issues for its determination, that salutary impact was just as effective in relation to the asserted irregularity that had been said to found the first discharge application as it was in relation to those underpinning the second application.

Turning to the second discharge application, the immediate background to this application is set out at [49] above with the short oral argument reproduced at [50].

As with the first discharge application, it is not without significance that the trial judge’s assessment of the matter at the time of complaint and with all of the benefits of his familiarity with the course of the trial and the jury empanelled before him, resulted in its rejection. He considered that discharge was not necessary and that any prejudice could be corrected or cured by a direction.

The trial judge’s reasons for rejecting the second discharge application have been set out at [51] above. His Honour explained that the evidence founding the application emerged from a series of questions put to Mr El Zamtar in cross-examination in which the witness repudiated a suggestion that there was a family feud and explained the true origins of any tension between two groups of young men. He also made the point that evidence as to bad character cannot always be excluded and a trial kept fully sanitised, as it were. He indicated a preparedness to give a direction to the jury at this point in the trial if asked to do so, and such a direction was given.

As I have pointed out above, this direction counselled the jury to focus exclusively on the three charges that were before it for consideration, and the specific nature of the allegations in relation to those charges. It was a clear, measured and wholly intelligible direction. The trial judge was astute not to compound any prejudice that may have been perceived to arise from Mr El Zamtar’s evidence by making reference to any specific aspects or elements of it.

That this direction was efficacious in righting any imbalance that may have developed in terms of fairness to the appellant is reflected in the fact that senior counsel for the appellant put that it was not until the evidence that animated the third discharge application that the trial was in the realms of miscarriage. It is to that matter and the third discharge application that I now turn.

It will be recalled that the third discharge application was based upon Detective Rogerson’s reference to the appellant having been located by the Middle Eastern Organised Crime Squad. That passage of evidence is set out at [54] above. A number of points may be made in relation to it.

First, that the appellant was of Middle Eastern ethnicity was well known to the jury.

Second, that the appellant had been located by the Squad did not necessarily imply that his location was in connection with some matter other than the very serious offences with which he had been charged and which were being considered by the jury.

Third, the reference by Detective Rogerson to the location of the appellant by the Squad was, in my opinion, more innocuous and perhaps less gratuitous than was suggested on behalf of the appellant when read in its context. In particular, the answer was given in circumstances where the Detective was making it clear that she had not personally located the appellant – she had been asked whether she had made inquiries to locate the appellant. Her answer conveyed that she had not done so personally by identifying who had.

Fourth, although defence counsel said in making submissions on the discharge application that the reference to this matter by Detective Rogerson “pricked [his] ears” (see [57] above), he made no application in relation to the remark until the following day of the trial, even though the proceedings adjourned prior to lunch on the day on which the remark was made.

Fifth, the reference to the phrase Middle Eastern Organised Crime Squad was removed from the transcript provided to the jury.

Sixth, the statement came only a day after the trial judge had given a clear direction to the jury as to what its limited and specific task was, and only a matter of days before he repeated this in his summing up to the jury.

Seventh, the trial judge’s assessment that the fairness of the trial had not been compromised, or not irretrievably so, in that a direction to the jury was capable of focussing its attention on the precise charges, is a further matter that needs to be taken into account and, consistent with the authorities, although by no means determinative, is a matter that he was well placed to assess.

In this context, the trial judge’s ruling in relation to the third discharge application is set out at [58] above. The last five paragraphs of his Honour’s ruling reflect his assessment that the trial would still be a fair one notwithstanding the reference to the Middle Eastern Organised Crime Squad. His Honour emphasised, consistent with the authorities, that a jury should only be discharged when there is the necessity for doing so, that the matter arose late in the course of the trial, that there was a need to continue if that could be done fairly, and that directions to the jury may be curative and the criminal law proceeds on the basis that juries follow a judge’s directions. His conclusion was that the appellant’s trial would still be fair. I agree.

In written submissions, senior counsel for the appellant embraced as apt the trial judge’s reference to the “bald man paradox” at the time of the third discharge application (see [56] above), contending that whilst individual prejudicial statements might not individually and even collectively, up to a point, have compromised the fairness of the trial, by the time of the third discharge application, and certainly by the time of the fourth application that did not result in any discharge or formal ruling by reason of the trial judge’s mistake (see [65] above), the balance had tipped too far.

This submission carried with it an assumption that all of the matters complained of were irregularities and that their impact was not evanescent or, at least in the case of the matters the subject of the second discharge application, were not capable of correction or recalibration by the trial judge’s clear direction to the jury. This assumption was, in my view, not correct. Some of the matters about which complaint was made and which I have referred to above could not fairly be characterized as irregularities or even as inadmissible evidence. Moreover, as pointed out at [101] above, not every prejudicial piece of evidence will be irregular.

Further, I do not accept the premise implicit in the appellant’s submission that this was a case involving ever increasing prejudice. The consequence of a corrective direction to the jury is to arrest and reverse any prejudice that may have arisen in the course of the trial. As indicated above at [142]-[143], in my view, the direction the trial judge gave after the second discharge application (reproduced at [52] above) would have had the desired curative effect.

Turning to the fourth discharge application, it will be recalled that this arose out of evidence given by Eman El Zamtar at the very end of the trial: see [61] above. This evidence was extraneous and prejudicial. Moreover, the trial judge appears mistakenly to have assumed that it came prior to his ruling on the third discharge application. I have referred at [65] how this may have come about and noted that defence counsel seems to have been similarly mistaken. It may be, however, that the trial judge had in mind, by his reference to the earlier ruling on the third discharge application, that any prejudice arising could be cured satisfactorily by a clear direction to the jury in his summing up. As it transpired, the summing up contained such a direction (see [73] above).

In addition to the foregoing analysis in relation to the various discharge applications and the irregularities said to have justified their being made, a number of more general points need to be made.

First, none of the matters complained of by the appellant including the evidence which underpinned the discharge applications was adduced as a result of deliberate questioning by the Crown Prosecutor (cf. Crofts at 442).

Second, none of the irregularities found their way into the Crown’s address nor were any questions asked by the jury in their four day deliberation on the charges in relation to any of the extraneous matters.

Third, unlike some of the cases in which an irregularity has led to a finding of a miscarriage of justice, there was a direction to the jury in relation to some of the matters complained of, and this direction, focussing the jury’s attention on the very specific allegations before it as well as to the jury’s specific and essential task, and directing attention away from any extraneous matters, was repeated in clear terms in the summing up: see [73] above. Moreover, it did not “refer specifically to the [impugned] evidence and by doing so reinforce the prejudice”: Younan at 130 [40(2)(f)].

Fourth, I am satisfied that, contrary to one of the appellant’s submissions, the trial judge’s directions and summing-up would have focussed the jury’s attention on the principal contested issues in the trial and mitigated any possibility that the evidence of the appellant’s bad character that had come out in the trial had impermissibly bolstered the Crown case. The jury deliberated over a period of 4 days following the summing up and the trial judge’s clear direction was only to focus on the precise charges and “not [to] get sidelined into irrelevant matters”. The jury was directed to keep to the straight and narrow of the charges in the plainest of terms. It could have been left in no doubt as to what their task was and by reference to what considerations it was or was not to be performed.

Fifth, the jury should be taken to have followed the direction given in the course of the trial and the summing up: Glennon at 603; Scott at [188]. Further, this was not a case in which there was any reason to believe that the jury had not performed its function: Lane at 697 [48], 698 [54].

Sixth, the Crown submitted, and I agree, that the Crown case against the appellant was very strong. The strength of it is reflected in the matters that were put clearly and relatively concisely to the jury, which I have summarised at [67] above.

Seventh, consistent with Weiss, I have closely reviewed the transcript of proceedings at trial and the material put before the Court and am persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt in respect of the charges on which the jury returned its verdict of guilty.

In this regard, the evidence both of Mr Ayoub and Mr El Zamtar was of central significance. If Mr Ayoub and Mr El Zamtar were accepted as credible witnesses of truth (which they must have been), the jury had direct evidence that Mr Ayoub was stabbed by the appellant, that the appellant had confessed this to Mr El Zamtar and that Mr El Zamtar was solicited by the appellant to murder Mr Ayoub.

Strong attacks were made on their credit. Defence counsel placed great emphasis on this in his address. Those credit attacks were evidently rejected by the jury. The rejection of those attacks on their credit could not, in my opinion, materially have been affected by the matters underpinning the unsuccessful discharge applications.

Nor was the evidence placing the appellant at the scene of the stabbing affected in any way, shape or form by the matters underpinning the discharge applications and complained of on appeal. The same may be said of the near contemporaneous report to Crime Stoppers identifying the appellant as the person to whom police should direct their inquiries.

For all of these reasons, I do not consider that there was either a substantial miscarriage of justice (to use the language of the Notice of Appeal) or a miscarriage of justice.

It follows, in my opinion, that, whilst leave to appeal should be granted, the appeal should be dismissed.

DAVIES J: I agree with Bell P.