Citation: Regina v Naudi [1999] NSWCCA 259
Court: NSW Court of Criminal Appeal
Date: 25 August 1999
Judge(s): Newman J, Windeyer J, Sperling J
Background
The appellant was tried in the District Court at Port Macquarie on eleven charges, including nine counts of sexual intercourse with a person under the authority of the appellant and under sixteen years of age, and two assault-related charges. The complainant had lived with the appellant and his wife from approximately age ten or eleven, after her mother died in 1990. The alleged sexual offending occurred primarily during 1994, when the complainant was a teenager.
The appellant pleaded guilty to one assault charge. The jury convicted him on all remaining charges. The trial judge imposed sentences including a minimum term of six years with an additional period of two years on the sexual intercourse charges.
The appellant appealed against both conviction and sentence on multiple grounds, including complaints about the admission of evidence relating to his exercise of the right to silence during a police interview, his refusal to provide a blood sample, alleged deficiencies in jury directions, and other matters arising from the conduct of the trial.
Legal Issues
- Whether evidence of the appellant exercising his right to silence in a police interview was admissible, and whether any error in admitting it caused a substantial miscarriage of justice
- Whether evidence of the appellant's refusal to provide a blood sample was admissible, and whether any resulting prejudice was cured by appropriate directions
- Whether the trial judge's summing-up on the assault occasioning actual bodily harm charge was confusing or legally inadequate
- Whether various other aspects of the trial gave rise to error warranting the quashing of the conviction or reduction of sentence
Decision
The Court dismissed the appeal against conviction and, after granting leave to appeal against sentence, dismissed the sentence appeal as well.
On the right to silence, Sperling J expressed reservations about the admissibility of evidence that an accused exercised the right to remain silent when questioned by police, noting serious doubt about its relevance. However, the Court found it unnecessary to resolve that question conclusively. The trial judge had given a prompt and firm direction that no adverse inference could be drawn from the appellant's silence, and the Court found this cured any potential prejudice. The proviso to section 6 of the Criminal Appeal Act 1912 applied: there was no substantial miscarriage of justice.
Similarly, on the refusal to provide a blood sample, Sperling J signalled difficulty with the proposition that such a refusal constitutes relevant evidence, though again the Court declined to decide the point definitively. The trial judge had directed the jury to treat the refusal in the same character as the exercise of the right to silence and to draw no adverse inference from it. Any error was cured by that direction, and this ground was rejected.
The summing-up on the assault charge was challenged on the basis that the transcribed version appeared to direct the jury that intent and absence of lawful excuse were established facts rather than matters to be proved. The Court found that the transcription had introduced misleading punctuation. When read in context and together with a further direction on the same page, the summing-up properly required the jury to find that the act was intentional and without lawful excuse. That ground also failed.
Orders Made
- Appeal against conviction dismissed
- Leave to appeal against sentence granted
- Appeal against sentence dismissed
Key Takeaways
- Where potentially inadmissible evidence of an accused exercising the right to silence is admitted at trial, a prompt and firm judicial direction that no adverse inference may be drawn can cure any prejudice, such that the proviso to section 6 of the Criminal Appeal Act 1912 applies and no substantial miscarriage of justice results.
- Sperling J expressed significant reservations about whether evidence of an accused's refusal to provide a blood sample is relevant evidence at all, placing it in the same uncertain category as evidence of the exercise of the right to silence. Both points were left open without definitive resolution.
- Adequate jury directions curing the admission of potentially prejudicial evidence will defeat conviction appeals in circumstances where no substantial miscarriage of justice can be shown.
- Apparent ambiguity in a summing-up arising from transcription errors, rather than the judge's actual words, will not ordinarily constitute appealable error, particularly where other parts of the summing-up make the correct direction clear.
- In dismissing the sentence appeal, the Court found no arguable error in the sentences imposed on the sexual intercourse charges; the sentences on the assault charges, which had already been served, were not contested as excessive.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), s 6
- Criminal Appeal Rules (NSW), r 4
- Evidence Act 1995 (NSW), ss 164(3), 165, 165(2)
Cases:
- Berrigan (NSW CCA, 7 October 1994, unreported)
- Jones (1997) 72 ALJR 78
- Kilby (1973) 129 CLR 461
- Longman (1989) 168 CLR 78
- Matthews (NSW CCA, 28 May 1996, unreported)
- Reeves (1992) 29 NSWLR 109