Retrial Ordered Due to Judge’s Failure to Give Fair and Proper Directions to Jury

by Paul Gregoire & Ugur Nedim
Supreme Court of NSW

According to the Crown, David Melia pulled into a service station in the Sydney southwestern suburb of Ruse to buy tobacco on the night of 26 June 2018.

After being approached by Frank McGuiness, Melia agreed to drive the stranger to Leumeah station in exchange for petrol money.

Following a phone call, however, McGuiness said he wanted to go to Woodbine McDonalds instead.

Melia complied, and in the carpark of the fast-food outlet, Ryan Trevascus turned up on a bicycle. And the car tailed the bike to a nearby house, where Trevascus got into the vehicle.

On further requests, Melia drove to Campbelltown and then onto Minto Heights, where McGuiness went into a block of units. After Melia was asked to drive back to Campbelltown, he instead chose to drive the pair back to the McDonald’s carpark.

McGuiness began punching Melia, and Trevascus allegedly pulled back on the driver’s gold neck chain from behind, so he couldn’t move his head. McGuiness got out of the car and commenced punching Melia from the driver’s seat door, as he attempted to pull him out of the vehicle.

As the assault continued, Trevascus got out of the car, walked around and got back in. This was until Melia stood up and confronted him, at which point Trevascus fled the scene allegedly carrying the car keys.

McGuiness briefly continued to brawl with Melia, before giving up and running away.

Guilty as charged

Trevascus appeared before the NSW District Court in March last year and pleaded not guilty to two charges.

His criminal defence lawyers disputed that their client was working together with McGuiness in a joint criminal enterprise, that he’d pulled on the victim’s chain, and that he was attempting a robbery.

The defence’s version of events was that the trio had driven to Minto Heights to buy drugs for Melia as payment for “putting up” with McGuiness. When they got back to the carpark, the two men in the front of the car had an altercation, and Trevascus attempted to pull them apart.

In summing up the defence case, Trevascus’ lawyer submitted that there was no doubt that a robbery and attempted carjacking had taken place, but at no time did his client intend to rob Melia or steal the car, and he certainly hadn’t made any arrangement with McGuiness to undertake these crimes.

Trevascus pleaded not guilty to one count of robbery in company under section 97(1) of the Crimes Act 1900 (NSW) in relation to the car keys. This offence carries a maximum penalty of 20 years imprisonment.

He also entered a plea of not guilty to attempting to steal a vehicle in company under sections 154C(2) and 344A(1) of the Crimes Act. This offence carries up to 14 years prison time.

Section 344A of the Crimes Act is applied to other offences when there has been an attempt to commit a crime, but its commission was unsuccessful. When this section is applied, the penalty for the attempted crime is the same as it would have been if it had been successful.

However, a jury ultimately found Trevascus guilty on both charges. And on 4 March last year, NSW District Court Judge Andrew Colefax sentenced him to an aggregate sentence of 7 years imprisonment, with a parole period of 5 years and 3 months.

Appealing the convictions

Trevascus appealed his convictions to the NSW Court of Criminal Appeal (NSWCCA) on 28 April this year.

He did so on two grounds. The first was that the trial judge had failed to direct the jury as to the elements of the offences. The second was that the judge failed to summarise the defence case.

As to the direction to the elements of the offences, Judge Colefax adopted the question trail method used by the courts in New Zealand. This involves a series of written questions and answers, covering the elements of an offence, as well as addressing the standard of proof that needs to be adhered to.

In Trevascus’ case, the trial judge provided a distinct trail question document for each offence. His Honour then sent the jury away to read them. And on their return to the courtroom, he didn’t address the content of the documents in any way, but simply referenced them twice in summing up.

NSWCCA Justice Geoffrey Bellew outlined that section 55B of the Jury Act 1977 (NSW) permits a judge to provide written directions, however this does not work as a substitute for the need for a presiding judicial officer to fulfil the common law requirement of giving oral directions.

“There was a failure on the part of the trial judge to provide proper directions as to the elements of each of the offences. That failure resulted in a miscarriage of justice,” Justice Bellew found. “This ground of appeal is made out.”

The second ground

On turning to the second ground, which involved the question as to whether the judge failed to summarise the defence case, the justice outlined the importance of providing a jury with a summary of a defence case to ensure that the issues raised on the accused’s behalf were properly heard.

In ensuring that a fair trial has taken place, his Honour explained, a trial judge must not only instruct on the law, but they must also identify the specific issues at hand. And even though Trevascus’ trial had been a short one, there was still a requirement “to put the defence case”.

“What was said by the trial judge fell short of putting the defence case to the jury,” his Honour said. He added that he was surprised the accused’s lawyer didn’t raise the issue at the time. And as this failure had resulted in a miscarriage of justice, the second ground was also made out.

A retrial ordered

On 24 May, Justice Bellew ordered that Trevascus’ convictions be quashed, and that the case be remitted to the NSW District Court for a new trial.

NSWCCA Justices Clifton Hoeben and Peter Hidden agreed with the orders.

In relation to the assault in the carpark, Melia had suffered a broken nose and a black eye.

Whilst McGuiness ended up pleading guilty to a charge of robbery in company and was sentenced to 7 years and 7 months imprisonment, with a non-parole period of 5 years and 8 months.

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Authors

Paul Gregoire

Paul Gregoire is a Sydney-based journalist and writer. He has a focus on human rights issues, encroachments on civil liberties, drug law reform, gender diversity and First Nations rights. Prior to Sydney Criminal Lawyers®, he wrote for VICE and was the news editor at Sydney’s City Hub.

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with over 20 years of experience as a criminal defence lawyer. He is the Principal of Sydney Criminal Lawyers®.

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