Citation: Regina v Baker [2001] NSWCCA 151
Court: New South Wales Court of Criminal Appeal
Date: 20 April 2001
Judges: Handley JA, Ipp AJA, Greg James J
Background
The appellant was convicted by a District Court jury of threatening unlawful violence against four complainants at a residential property in Cootamundra on 19 June 1996. The Crown alleged he attended the property with two associates, produced a tomahawk, and threatened to kill those inside while striking the front screen door with the weapon. He was acquitted of a related charge of malicious damage to a motor vehicle.
A key witness, Peter Young, was called by the Crown but gave evidence that substantially supported the appellant's case. Young said the appellant did not have a tomahawk and had merely become angry and struck the door with his fist. The appellant did not testify in his own defence.
The appellant appealed his conviction on two grounds: that the trial judge's direction to the jury about his failure to give evidence was inadequate, and that the trial judge erred in giving an accomplice warning in relation to Young's evidence.
Legal Issues
- Whether the trial judge's direction on the accused's failure to give evidence was sufficient, particularly in the absence of an instruction that silence cannot be treated as evidence of guilt and that there may be unknown reasons for an accused remaining silent.
- Whether the trial judge erred in giving an accomplice direction in respect of Young, a witness who had given evidence favourable to the appellant, and whether any such misdirection could be cured by a direction to the jury to disregard it.
Decision
On the first ground, the Court found the trial judge's direction was deficient. While the judge acknowledged the appellant's right not to testify, he failed to tell the jury that silence cannot be treated as an admission of guilt, and did not warn the jury that there may be reasons unknown to them why an accused person might choose not to give evidence. The Court relied on principles set out in R v OGD, which recognised that jurors, without guidance, may draw more adverse inferences from silence than are legitimately available.
The omission of the "unknown reasons" warning was described as particularly significant in the circumstances. The appellant may well have decided not to testify because Young's evidence already provided a version of events favourable to him. The failure to give the required direction amounted to a misdirection.
On the second ground, the trial judge gave an accomplice warning in relation to Young, directing the jury that his evidence might be unreliable because he accompanied the appellant to the premises and remained present throughout the incident. The Court held this was not a proper basis for treating Young as an accomplice, as mere presence without participation in the charged offence does not make a witness an accomplice. The appropriate direction was that Young, whose evidence supported the appellant, should be assessed as an ordinary witness on his merits.
The trial judge subsequently withdrew the accomplice direction and asked the jury to disregard it, but refused to discharge the jury. The Court of Criminal Appeal accepted that discharging the jury was not required, but held that a bare withdrawal was insufficient to cure the damage. The detailed accomplice warning, delivered over several minutes, would have left a lasting impression on the jury that a simple instruction to disregard could not erase.
Orders Made
- Appeal upheld
- Verdict set aside
- New trial ordered
Key Takeaways
- A direction on an accused's failure to give evidence must include two elements drawn from R v OGD: that silence cannot be treated as an admission of guilt, and that there may be reasons unknown to the jury why an accused person chooses not to testify. Omitting either element may constitute a misdirection.
- Where an accused person may have had a specific tactical reason for remaining silent (such as the existence of favourable evidence from another witness), the "unknown reasons" warning takes on added significance.
- An accomplice direction is not appropriate merely because a witness was present during an alleged offence. Participation in the charged offence is required before that witness can properly be characterised as an accomplice.
- Where a witness gives evidence favourable to the accused, the Court of Criminal Appeal confirmed that the witness should be treated as an ordinary witness assessed on the merits of their evidence, without any special warning about unreliability.
- A direction to the jury to disregard a prior misdirection will not necessarily cure the harm caused, particularly where the erroneous direction was detailed and delivered at length before deliberations commenced.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), s 20(2)
Cases:
- R v OGD (1997) 45 NSWLR 744
- Jamieson, Elliott and Blessington (1992) 60 A Crim R 68