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Court of Criminal Appeal 14 July 2000

R v Dang

[2000] NSWCCA 269

Drugs
APPEAL AGAINST CONVICTION AND SENTENCE IMPORTATION OF PROHIBITED SUBSTANCE SUMMING UP

Citation: Dang v R [2000] NSWCCA 269
Court: NSW Court of Criminal Appeal
Date: 14 July 2000
Judge(s): Meagher JA, Grove J, Bergin J

Background

The appellant was convicted in the District Court of being knowingly concerned in the importation of a commercial quantity of heroin. In February 1996, Australian Federal Police seized over 14 kilograms of impure heroin concealed in an air crate shipped from Bangkok. The consignee was the appellant's brother-in-law, who had already pleaded guilty and been sentenced.

The Crown's case against the appellant was circumstantial. No one observed him handling heroin, he made no admissions, and the documentary evidence found at his premises was capable of multiple interpretations. The Crown also relied on the appellant having been a consignee in a separate Bangkok shipment in December 1995, though that package was never proven to contain heroin.

The appellant did not give evidence at trial. The trial judge, Shillington DCJ, directed the jury that the appellant's failure to explain matters within his own knowledge could lead them to more readily accept the Crown's arguments. The appellant challenged that direction on appeal.

  • Whether the trial judge's direction to the jury about the appellant's silence was legally permissible in the circumstances
  • Whether the principle in Jones v Dunkel (ordinarily applied in civil proceedings, permitting an adverse inference from the unexplained absence of a witness) could apply to an accused person's silence in a criminal trial
  • Whether the strength or weakness of the Crown's case was relevant to whether comment on an accused's silence was appropriate

Decision

Meagher JA delivered the primary judgment, with Grove J and Bergin J agreeing. The court found the trial judge's direction to the jury was impermissible and could not be sustained under either of the two key High Court authorities.

The court applied the majority holding in RPS v Regina, which established that it will seldom, if ever, be reasonable to conclude that an accused in a criminal trial would be expected to give evidence. The court acknowledged the narrow exception recognised in Weissensteiner v Regina, where comment on silence was sanctioned because the accused was the sole surviving occupant of a boat on which two people had died. However, the court distinguished those circumstances from the present case, noting that even Weissensteiner recognised that deficiencies in the prosecution case may be sufficient to justify an accused remaining silent and relying on the prosecution's burden of proof.

Meagher JA characterised the Crown's case as tenuous, both with and without regard to the 1995 importation. In that context, the court held there was virtually no room for the operation of Jones v Dunkel in a criminal case where the accused remains silent, and especially not where the prosecution case is as weak as it was here. The conviction and sentence were set aside and a retrial was ordered.

Orders Made

  • Appeal allowed
  • Sentence set aside
  • Retrial ordered

Key Takeaways

  • The Court of Criminal Appeal confirmed that a trial judge's direction inviting the jury to draw adverse inferences from an accused's silence will rarely, if ever, be appropriate in a criminal trial.
  • Under the RPS v Regina principle, it will seldom be reasonable to conclude that an accused is expected to give evidence, and a direction suggesting otherwise risks undermining the fundamental burden of proof in criminal proceedings.
  • A narrow exception exists where facts are peculiarly within the accused's knowledge and the prosecution case is strong, as recognised in Weissensteiner. However, even that exception does not displace the accused's entitlement to rely on the prosecution's burden where the Crown case is deficient.
  • The Jones v Dunkel principle, which permits adverse inferences from the unexplained absence of a witness in civil proceedings, has almost no operation in criminal trials where the accused remains silent.
  • Where the prosecution case is tenuous, the justification for any comment on an accused's silence is further diminished, not enhanced.

Legislation and Cases Referenced

Cases:
- RPS v Regina (2000) 74 ALJ 449
- Weissensteiner v Regina [1993] 178 CLR 217
- Jones v Dunkel (inference from unexplained absence of evidence or witness)

Legislation: No specific legislation was cited in the text of the judgment.