AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
5
Court of Criminal Appeal 30 July 1999

Regina v Taufua

[1999] NSWCCA 205

Theft & property

Citation: Regina v Taufua [1999] NSWCCA 205
Court: NSW Court of Criminal Appeal
Date: 30 July 1999
Judges: James J, Barr J, Carruthers AJ

Background

The appellant had been convicted at a retrial in the Newcastle District Court of armed robbery under s 97 of the Crimes Act 1900, following a successful first appeal. The charge related to a 1994 robbery at a Mayfield mini market in which the appellant and a co-offender, Dean Price, allegedly stole cash and cigarettes while Price was armed with a knife.

The Crown case rested substantially on identification evidence, electronically recorded interviews, and testimony from two women who gave evidence of admissions the appellant had allegedly made to them. A third figure, a man named David Brien, also featured in the Crown evidence, with witnesses deposing that the appellant had sought to arrange for Brien to falsely claim responsibility for the robbery. The appellant did not give evidence, called no witnesses, and simply put the Crown to proof.

Neither Price nor Brien was called at the retrial by either the Crown or the appellant, even though both men had given evidence (called by the appellant) at the first trial.

  • Whether the trial judge erred in giving a Jones v Dunkel direction against the appellant for failing to call Brien as a witness.
  • Whether a Jones v Dunkel direction should have been given against the Crown for failing to call Price or Brien.
  • Whether, in the circumstances of this criminal trial, any Jones v Dunkel direction was appropriate at all.
  • Whether any misdirection constituted a miscarriage of justice, and whether the proviso should be applied to save the conviction.

Decision

Carruthers AJ (with whom James J and Barr J agreed) held that the trial judge erred in the Jones v Dunkel directions given to the jury. A Jones v Dunkel direction permits a jury to infer that the uncalled witness's evidence would not have assisted the party who failed to call them. The judgment emphasised, however, that while such principles apply to criminal as well as civil trials, they must be applied with the utmost caution in a criminal context.

The Court found that the direction given against the appellant was particularly problematic because the appellant had simply put the Crown to proof and had not advanced any affirmative defence or answer to the Crown case. In those circumstances, it was not a legitimate forensic step for the Crown to seek, or for the judge to give, a Jones v Dunkel direction against the appellant for not calling Brien.

As for the non-calling of Price and Brien by either party, the Court concluded this was a case where no Jones v Dunkel direction was warranted in any direction. Instead, the jury should have been directed, consistently with the approach taken in Regina v Newland, to resolve the case on the evidence before them and not to speculate about what Price or Brien would have said had they been called.

The Court declined to apply the proviso, finding the misdirection may well have resulted in a miscarriage of justice. A direction of acquittal was also declined, however, meaning the matter was to proceed to a third trial.

Orders Made

  • Leave to appeal out of time granted.
  • Appeal upheld.
  • Conviction and sentence quashed and a new trial ordered.

Key Takeaways

  • A Jones v Dunkel direction permits a jury to draw an adverse inference from a party's failure to call a witness, but the Court of Criminal Appeal confirmed that this principle must be applied with particular caution in criminal proceedings, given the presumption of innocence and the right to silence.
  • Where an accused person adopts a purely defensive posture, putting the Crown to proof without raising any affirmative case, a Jones v Dunkel direction against that accused for failing to call a witness is not a legitimate forensic step.
  • In cases where neither party has called a potential witness, a direction to the jury to resolve the matter on the evidence actually before them, rather than speculate about what the absent witness would have said, will often be the appropriate course.
  • The Court of Criminal Appeal declined to apply the proviso in circumstances where flawed Jones v Dunkel directions may have materially affected the jury's deliberations.
  • Applying Jones v Dunkel in a criminal trial carries real risk of miscarriage: this decision illustrates that an erroneously given direction can result in a conviction being quashed even where the underlying evidence against the accused is substantial.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97 (armed robbery)

Cases:
- Jones v Dunkel (1959) 101 CLR 298
- Weissensteiner v The Queen (1993) 178 CLR 217
- Regina v Apostilides (1984) 154 CLR 563
- Ratten v The Queen (1974) 131 CLR 510
- Regina v Buckland (1977) 2 NSWLR 452
- Regina v John Paul Newland (1997) 98 A Crim R 455
- Regina v Su [1997] 1 VR 1
- Dilosa v Latec Finance Pty Ltd (1966) 84 WN (Pt 1) (NSW) 557
- Cf v Yaari (1995) 101 CCC (3d) 401