Background
Meyez Elkerdi and co-accused James Scicluna were jointly tried in the District Court for firing a firearm at a dwelling house with reckless disregard for safety contrary to s 93GA(1) of the Crimes Act 1900 (NSW). The Crown alleged that on 27 May 2023, both men discharged an SKS rifle at unit 150/25 Gregory Street, South Coogee. The Crown relied on CCTV placing both men in Scicluna’s vehicle, DNA evidence, cell tower data, and phone records showing 71 communications between the accused in the days surrounding the incident.
Elkerdi did not testify. Instead, he relied entirely on Scicluna’s account that Scicluna dropped Elkerdi off at his grandmother’s house before the shooting and then, while alone, picked up an unidentified individual who was the actual shooter. Scicluna testified that this unidentified person forced him to possess the firearm under threats and duress. Both accused were convicted on 17 March 2025.
The Court’s Holding
The Court of Criminal Appeal unanimously allowed the appeal and ordered a new trial, finding that the trial judge’s summing up constituted a miscarriage of justice. The court held that the trial judge impermissibly departed from the role of neutral arbiter and instead conducted an exercise in persuading the jury of Elkerdi’s guilt. Specifically, the court identified multiple defects: the trial judge referred to the unidentified shooter as “Mr No Name” 34 times—a characterization that belittled Scicluna’s account and suggested the person was fictitious. When summarizing evidence, the judge used derisive language like “why on earth” and “fortuitously,” conveying clear disbelief in Scicluna’s testimony.
The court further found that the trial judge advanced a “submission” about whether the shooting was targeted—an argument the Crown did not make—and came up with arguments to undermine Scicluna’s duress defense that neither party had raised. The judge also dismantled defense criticisms of the police investigation without the Crown having addressed these points. Considered as a whole, the summing up communicated to the jury that the trial judge had already formed a view of Elkerdi’s guilt, effectively usurping the jury’s role as fact-finder.
Key Takeaways
- Trial judges must remain neutral during summing up and refrain from expressing opinions on the credibility of evidence in ways that effectively direct the jury toward conviction.
- Repetitive use of demeaning labels (such as “Mr No Name” repeated 34 times) can cross the line from neutral summarization into subtle persuasion that an alibi witness is not credible.
- Judges must not advance prosecutorial arguments not made by the Crown, particularly regarding elements of defenses such as duress, as this effectively relieves the Crown of its burden.
- A trial judge’s failure to address defense criticisms of investigative procedures does not justify the judge raising counter-arguments sua sponte; the Crown must respond to such criticisms if it wishes the jury to hear a rebuttal.
- The absence of a trial objection or application for redirection does not insulate a summing up from appellate review when the cumulative effect amounts to a miscarriage of justice.
Why It Matters
This decision reaffirms a fundamental principle of criminal trial administration: the trial judge is a neutral arbiter whose role in summing up is to accurately and fairly summarize the evidence and law, not to critique the credibility of defense witnesses or advance arguments on behalf of the prosecution. The court’s detailed analysis of subtle techniques—such as repeated use of dismissive terminology and strategically placed rhetorical questions—illustrates how judicial conduct can undermine jury independence even without overt direction. The decision clarifies that courts will scrutinize not just explicit statements but the overall tone and cumulative effect of a judge’s remarks.
For practitioners, the decision underscores the importance of raising objections to problematic summing-up passages at trial, though the court made clear that egregious departures from neutrality may constitute miscarriage of justice even absent a trial objection. For trial judges, the decision serves as a reminder that when accused persons rely on co-accused testimony—particularly testimony involving unidentified third parties or controversial defenses such as duress—the judge must be especially vigilant to avoid language or reasoning that signals prejudgment to the jury.