Citation: [2000] NSWCCA 219
Court: New South Wales Court of Criminal Appeal
Date: 13 June 2000
Judge(s): Grove J, Ireland J, Adams J
Background
The appellant was convicted in the Sydney District Court of supplying a large commercial quantity of heroin, contrary to the Drug Misuse and Trafficking Act 1985. The heroin, concealed in five packages behind a drawer of a wardrobe in the appellant's flat, was discovered during a police search on 18 December 1997. The appellant's fingerprints were found on packing tape securing those packages. He was sentenced to seven years' imprisonment, with a minimum term of five years and three months.
At trial, the appellant's defence turned on whether someone else, a man he identified as David Wong, also occupied the flat and may have been responsible for the drugs. Three police witnesses denied that the appellant had mentioned any other occupant during the search. The appellant gave evidence that he had in fact named David Wong to police at the time.
The central evidentiary dispute was therefore not one of silence, but of a factual conflict: had the appellant made a self-serving statement to police that they then denied? On appeal, the appellant also challenged directions the trial judge gave to the jury about how to evaluate his evidence and the significance of what he did or did not say at the time of arrest.
Legal Issues
- Whether the jury was misdirected by the trial judge's reference to the appellant's failure to nominate another occupant to police, in a way that impermissibly invited an adverse inference from the exercise of the right to silence
- Whether the jury directions on evaluating the appellant's evidence were adequate and not misleading, particularly in a circumstantial case
- Whether, if errors were established, the proviso should be applied to dismiss the appeal despite any such errors
- Whether the conviction should be set aside as a miscarriage of justice
Decision
The Court of Criminal Appeal dismissed the appeal by majority (Grove J and Ireland J), with Adams J dissenting on grounds 4 and 5.
On ground 4 (the right to silence point), the majority held that the trial judge's direction did not invite the jury to draw an adverse inference from the exercise of a right to silence. The appellant's own case was that he had made a positive statement to police. The direction was properly understood as directing the jury's attention to a factual dispute about whether that statement was made at all, not as penalising silence. The trial judge had separately given explicit and clear directions against drawing adverse inferences from the appellant's refusal to answer questions. The principle in Petty v The Queen (1991) 173 CLR 95 was distinguished on the basis that the appellant was not asserting his right to silence but affirmatively claiming to have spoken.
On ground 5 (adequacy of directions on the appellant's evidence), the majority found that the jury had not been misled or inadequately directed when the charge was read as a whole. No redirection had been sought at trial, and the ground was only raised after leave to amend was granted during the appeal hearing. Grove J considered this indicated that experienced trial counsel did not perceive any inadequacy at the time. The majority applied the proviso (Rule 4), holding that the Crown case was very strong and no substantial miscarriage of justice had occurred.
Adams J, dissenting, considered that the directions on both grounds were erroneous and fundamental enough to warrant a new trial. In his view, the trial judge's directions on the right to silence and on how the jury should evaluate the appellant's evidence in the context of a circumstantial case were confusing and legally flawed to a degree that could not be cured by the strength of the Crown case.
Orders Made
- Appeal against conviction dismissed (by majority)
- Leave to appeal against sentence refused (application abandoned by senior counsel at hearing)
Key Takeaways
- The right to silence principle in Petty v The Queen does not apply where an accused affirmatively asserts that he made a statement to police: the jury may properly consider the factual conflict about whether that statement was made, including what was or was not said.
- A direction that draws the jury's attention to what an accused claimed to have said (and police denied) is not equivalent to inviting an adverse inference from silence, provided the trial judge has separately given clear directions against drawing adverse inferences from the exercise of the right to silence.
- Where no redirection is sought at trial and a ground is raised for the first time on appeal, courts may treat the absence of objection by experienced trial counsel as a relevant consideration when assessing whether the directions caused a miscarriage of justice.
- The majority confirmed that the proviso applies where the Crown case is very strong and no substantial miscarriage of justice has occurred, even where alleged errors in directions are raised on appeal.
- Adams J's dissent illustrates that, in a circumstantial case, overly elaborate jury directions on how to evaluate an accused's evidence may risk creating confusion about the standard of proof and the accused's status as an ordinary witness, rather than clarifying the jury's reasoning task.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25
- Evidence Act 1995 (NSW)
Cases:
- Petty v The Queen (1991) 173 CLR 95
- RPS v The Queen [2000] 74 ALJR 449
- R v Constantin Bejenaru (unreported, NSWCCA, 11 October 1991)
- Filipetti (1984) 13 A Crim R 335
- He Kaw Teh v The Queen (1985) 157 CLR 523
- R v Solway (1984) 11 A Crim R 449
- R v Tsoukalos (unreported, NSWCCA, 7 December 1998)
- R v Tomazos (unreported, NSWCCA, 6 August 1971)