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Court of Criminal Appeal 23 May 2000

REGINA v. SCOTT

[2000] NSWCCA 187

Also reported as 112 A Crim R 543
Drugs
CRIMINAL LAW APPEAL DIRECTIONS TO JURY

Citation: Regina v. Scott [2000] NSWCCA 187
Court: New South Wales Court of Criminal Appeal
Date: 23 May 2000
Judge(s): Wood CJ at CL, Hulme J, Greg James J

Background

The appellant was convicted in the District Court of supplying heroin in a commercial quantity between January and August 1991. The Crown's case rested principally on the testimony of a co-participant, TW, who alleged the two men had operated a joint enterprise obtaining heroin from a supplier named Khoury, processing it, and distributing it.

The appellant admitted associating with TW and Khoury but denied any knowing involvement in heroin supply. He gave evidence that their activities together concerned placing bets on Khoury's behalf, transporting illegal veterinary products, and dealing in car parts. Intercepted telephone conversations formed a central part of the Crown's evidence, with the parties disputing what the coded references in those conversations actually meant.

Three individuals connected to the events, Khoury, Daisy Davis (Khoury's girlfriend), and Phillip Arkel, were not called as witnesses by the defence. At the Crown's request, the trial judge directed the jury that it could draw an adverse inference against the appellant from his failure to call those witnesses. That direction, not objected to at trial, became the focus of the appeal.

  • Whether a Jones v. Dunkel direction (permitting an inference that uncalled evidence would not have assisted a party's case) can properly be given against an accused in a criminal trial in respect of witnesses the accused did not call.
  • Whether the directions as given were adequate and legally correct in the circumstances.
  • Whether the absence of objection at trial precluded the Court of Criminal Appeal from granting leave to raise the grounds on appeal.
  • Whether the proviso under section 6 of the Criminal Appeal Act 1912 could be applied to save the conviction despite the misdirection.

Decision

The Court of Criminal Appeal, in reasons delivered by Greg James J (with Wood CJ at CL and Hulme J agreeing), allowed the appeal. The central finding was that the trial judge erred by directing the jury, at the Crown's request, that it could draw a Jones v. Dunkel inference against the accused from his failure to call Khoury, Daisy Davis, and Arkel.

Greg James J considered the direction in the context of then-recent authority, including the High Court's decision in RPS [2000] HCA 3 and the Court of Criminal Appeal's decision in Taufua. Those authorities had clarified that the Jones v. Dunkel principle, derived from civil litigation, does not readily translate to the criminal context in a way that permits adverse inferences to be drawn against an accused for failing to call witnesses. The direction risked undermining the Crown's burden of proof.

The court rejected the submission that the failure to object at trial was fatal to the appeal. Greg James J noted that the state of the law at the time of trial may have obscured the error, and that it was the Crown that had positively sought the erroneous direction. Gleeson CJ's observation in OGD was noted: trial judges should ordinarily raise proposed Jones v. Dunkel directions with counsel in the absence of the jury before giving them, to allow debate about their fairness. There was no indication that had occurred here.

The proviso to section 6 of the Criminal Appeal Act was also refused. The direction potentially diverted the jury's attention from the proper assessment of TW's credibility in light of the appellant's sworn denials. The court was unable to conclude that a properly instructed jury acting on the correct onus and standard of proof would inevitably have convicted the appellant.

Orders Made

  • Leave to appeal granted.
  • Appeal upheld.
  • Convictions quashed.
  • New trial ordered.

Key Takeaways

  • The Court of Criminal Appeal confirmed that applying the Jones v. Dunkel principle against an accused in a criminal trial, by directing a jury to draw an adverse inference from the failure to call witnesses, constitutes a serious misdirection where it risks undermining the Crown's onus of proof.
  • A failure to object to a direction at trial does not automatically preclude leave to appeal, particularly where the error was one of law that has been clarified by subsequent authority and where the Crown itself sought the impugned direction.
  • The proviso under section 6 of the Criminal Appeal Act 1912 will not save a conviction where a misdirection could have distracted the jury from properly assessing the credibility of the principal Crown witness against an accused who had given sworn evidence in denial.
  • Where a Jones v. Dunkel direction against an accused is under consideration, the observations of Gleeson CJ in OGD indicate that trial judges should raise the issue with counsel in the absence of the jury to allow consideration of reasons for the witness's absence and the fairness of any such direction.
  • The quashing of the conviction and order for a new trial, rather than acquittal, reflected that the error was one of misdirection rather than insufficiency of evidence.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 6
- Criminal Appeal Rules (NSW), Rule 4

Cases:
- Jones v. Dunkel (1959) 101 CLR 298
- Buckland (1977) 2 NSWLR 452
- Newland (1997-98) 98 A Crim R 455
- OGD (1997) 45 NSWLR 744
- Taufua [1999] NSWCCA 205
- Weissensteiner (1993) 178 CLR 217
- RPS [2000] HCA 3
- Wilde v. Regina (1988) 164 CLR 365