Elkerdi v R [2026] NSWCCA 96.

The decision in summary.

Elkerdi v R [2026] NSWCCA 96 was handed down on 3 July 2026. The trial concerned firing at a dwelling. The applicant was tried with a co-accused. He did not give evidence himself. His answer to the charge relied on the account given by his co-accused. The jury convicted.

The Court of Criminal Appeal allowed the appeal. The reasons found two problems with the trial. First, the summing-up was unbalanced and unfair. The trial judge put an argument that neither the Crown nor the defence had run, and returned more than once to criticism of the co-accused's evidence. Second, the jury was not given a proper direction to protect the onus and standard of proof in a case that turned on whose account was accepted. The conviction was quashed. A new trial was ordered.

The case is a clear statement of two long-standing rules. A trial judge must be fair and even-handed in summing-up. And where a case comes down to competing accounts, the jury must be told, in plain terms, that preferring one witness over another is not the test. This article sets out both rules, explains how the Court applied them, and explains what an order for a new trial means for the person charged.

Can a conviction be overturned if the judge's summing-up was unfair?

Yes, but the bar is high. A conviction appeal in NSW runs under section 6 of the Criminal Appeal Act 1912 (NSW). The Court will allow the appeal if the verdict is unreasonable, if there was a wrong decision on a question of law, or if there was, on any other ground, a miscarriage of justice. An unfair summing-up falls in the third category, and can also raise the second.

The Court does not pick over a single sentence. It reads the summing-up as a whole. A judge is allowed to comment on the evidence, and a strong comment is not by itself an error. The line is crossed when the comment stops being comment and becomes advocacy, or when the balance of the summing-up leaves the jury with the impression that the judge has taken sides. In Elkerdi, the Court found that line was crossed. The judge had built an argument that neither party had put, and had returned to attack the co-accused's evidence in a way that unbalanced the trial.

The result did not turn on whether the applicant was in fact guilty. It turned on whether the trial was fair. A person is entitled to a fair trial before a properly directed jury. Where the trial miscarries, the conviction cannot stand, whatever view one takes of the strength of the Crown case.

What must a trial judge do in a summing-up?

The judge's task in a criminal trial was set out by the High Court in RPS v The Queen [2000] HCA 3. The judge must identify the issues in the case, explain the law that applies to those issues, and relate the law to the facts the jury has to decide. The judge is not there to tell the jury what result to reach. The decision on the facts belongs to the jury.

Fairness has a settled content. If the judge summarises the prosecution case, the defence case has to be summarised too, and put accurately. The judge must not leave out the real defence, or reduce it to a form the jury can dismiss. The judge must not run a theory of guilt that the Crown never advanced, because the defence has had no chance to answer it. These are the rules the Court found were broken in Elkerdi.

There is a further point in a joint trial. Where two accused are tried together and one gives evidence, the judge must treat that evidence fairly for the benefit of both. Repeated judicial criticism of a co-accused's account can harm the other accused who relies on it. That was the position the applicant was in. He gave no evidence of his own. His defence stood on the co-accused's account. When the judge attacked that account, the applicant's defence was damaged by the bench, not by the Crown.

What is a Liberato direction?

A Liberato direction protects the onus and standard of proof in a case that comes down to competing accounts. It takes its name from Liberato v The Queen (1985) 159 CLR 507. The High Court restated it in De Silva v The Queen [2019] HCA 48.

The concern is a natural one. When a jury hears a prosecution witness and a defence witness give flatly opposed accounts, the jury may slip into treating the case as a contest, and may think the winner of the contest wins the trial. That is wrong. The prosecution carries the onus throughout. The direction tells the jury three things. If they believe the defence account, they must acquit. If they do not believe it but it leaves them in doubt, they must acquit. And even if they do not believe it at all, they must still acquit unless the prosecution has proved guilt beyond reasonable doubt on the whole of the evidence. Preferring the prosecution witness is not enough.

The direction is not needed in every case. It is needed where there is a real risk the jury will treat the choice between witnesses as the test of guilt. The trial in Elkerdi was such a case, because the outcome depended on whether the jury accepted the co-accused's account.

How did the Court extend the Liberato direction in Elkerdi?

The usual case for a Liberato direction is where the accused gives evidence and that evidence conflicts with a prosecution witness. Elkerdi was different. The applicant gave no evidence. He put no version of his own. What he relied on was the account of his co-accused, which was before the jury and which, if accepted or if it raised a doubt, was inconsistent with his guilt.

The Court held that the protection of a Liberato direction was not confined to the accused's own evidence. Where an accused relies on the account of another witness, here a co-accused, and that account is capable of raising a reasonable doubt, the same risk arises. The jury might think that rejecting the co-accused's account is the end of the applicant's case. It is not. The prosecution still has to prove its case against the applicant beyond reasonable doubt. The direction should have been given, adapted to a defence that rested on a co-accused's evidence rather than the accused's own. This is the point of principle that will be cited from the decision.

What happens when the Court of Criminal Appeal orders a new trial?

A new trial is one of the outcomes open to the Court under section 6 of the Criminal Appeal Act 1912 (NSW). The conviction is quashed. The verdict is set aside. The person is put back in the position of someone awaiting trial on the same charge. The matter returns to the District Court or the Supreme Court, and is heard again before a fresh jury that knows nothing of the first result.

A new trial is not an acquittal. It is different from the outcome where the Court finds the verdict was unreasonable; there, the Court enters a verdict of not guilty and the matter is over. Where the problem is unfairness in the conduct of the trial, the Court does not decide the facts for itself. It sends the case back so that a fair trial can take place. The prosecution then decides whether to run the trial again. Questions of bail, of any time already served, and of the strength of the case are all live at that point.

Through all of it the presumption of innocence applies. A person facing a retrial is an accused person, not a convicted person. The quashing of the conviction restores that status.

Why this matters for a conviction appeal.

Three points are worth taking from the decision.

First. The summing-up is part of the record on appeal.

Trial counsel and appeal counsel read the summing-up with care. The transcript of the directions is where an unfair trial often shows itself. A judge who argues the Crown case, who buries the defence, or who leaves out a direction the case called for, gives a ground of appeal. Elkerdi shows the Court will act on it.

Second. Directions matter in a two-account case.

Where the whole case comes down to whose evidence the jury accepts, the direction on the onus and standard of proof does real work. The absence of a Liberato direction, in a case that needed one, can be a miscarriage of justice on its own. The decision widens the reach of that direction to a defence built on a co-accused's account.

Third. A new trial is a real remedy.

A quashed conviction and a new trial is a full result on appeal. It restores the presumption of innocence and puts the prosecution to its proof again before a properly directed jury. For a person wrongly convicted after an unfair trial, that is the outcome the appeal exists to deliver.

What we do for clients on a conviction appeal.

A conviction appeal in NSW starts with the trial record. The transcript of the evidence, the exhibits, the addresses, and the summing-up are all read against the grounds of appeal. Directions to the jury are a common source of error. A summing-up that is unbalanced, that misstates the law, or that omits a direction the case required, can each found a ground.

Time limits are strict. Notice of intention to appeal is filed within 28 days of conviction or sentence, and the appeal itself within six months, though the Court can extend time. Early advice is worth having, because the trial record has to be obtained and read before the grounds can be settled.

Elkerdi will be cited in NSW conviction appeals that turn on an unfair summing-up or on a missing Liberato direction. It is a recent statement from the Court of Criminal Appeal on both.

Frequently asked.

Can a conviction be overturned if the judge's summing-up was unfair?

Yes. An unbalanced or unfair summing-up can amount to a miscarriage of justice under section 6 of the Criminal Appeal Act 1912 (NSW). The bar is high. The appeal court reads the summing-up as a whole. If the trial as a whole was unfair, the conviction can be quashed and a new trial ordered, as happened in Elkerdi v R [2026] NSWCCA 96.

What must a trial judge do in a summing-up?

The judge must explain the law that applies, relate that law to the real issues in the case, and put the defence case fairly and accurately. Where the judge summarises the prosecution case, fairness requires the defence case be put as well. The judge must not take sides or run an argument that neither party advanced.

What is a Liberato direction?

A direction that comes from Liberato v The Queen (1985) 159 CLR 507, restated in De Silva v The Queen [2019] HCA 48. Where a case turns on conflicting accounts, the jury must be told that even if they do not believe the defence account, and prefer the prosecution witness, they cannot convict unless the prosecution has proved guilt beyond reasonable doubt on the whole of the evidence. It guards against the jury treating the choice between witnesses as the test.

What happens when the Court of Criminal Appeal orders a new trial?

The conviction is quashed. The accused is returned to the position of a person awaiting trial on the same charge. The matter goes back to the District or Supreme Court to be heard again before a fresh jury. The prosecution decides whether to proceed. The presumption of innocence applies throughout.

Does an appeal court retry the facts?

No. The Court of Criminal Appeal does not hear the witnesses again. It reviews the trial for error of law, unfairness, or a verdict that no reasonable jury could reach. Where it finds a miscarriage of justice, it does not substitute its own guilty or not-guilty finding on the disputed facts; it orders a new trial before a jury.

Primary sources: Elkerdi v R [2026] NSWCCA 96 (JADE); NSW Caselaw; Liberato v The Queen (1985) 159 CLR 507; De Silva v The Queen [2019] HCA 48; RPS v The Queen [2000] HCA 3.

To speak to a criminal defence lawyer, call Aaron Kernaghan on 0421 717 019.

This article is written by Aaron Kernaghan, criminal defence lawyer at Good Legal Lawyers, as at 25 July 2026. It is commentary and reflects the personal opinion of the author only. It is not legal advice, it is not a substitute for advice on your own matter, and it does not purport to be accurate or complete. Any matter referred to may be before the court and any person charged is presumed innocent. For advice on a specific matter, contact Aaron Kernaghan on 0421 717 019 or contact the firm.

More criminal-law commentary by Aaron Kernaghan.

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