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5
Court of Criminal Appeal 12 June 2001

R v Giri

[2001] NSWCCA 197

Also reported as 121 A Crim R 568
Homicide
CRIMINAL LAW JUDICIAL INSTRUCTIONS TO JURY RIGHT TO SILENCE OF ACCUSED WHERE ACCUSED STOOD TRIAL FOR MURDER EVIDENCE ACT 1995 (NSW), S 20(2) CRIMINAL LAW

Citation: R v Giri [2001] NSWCCA 197
Court: New South Wales Court of Criminal Appeal
Date: 12 June 2001
Judge(s): Heydon JA, Barr J, Smart AJ

Background

The appellant was convicted of murder following an attack outside a King's Cross nightclub in the early hours of 22 June 1996. The Crown alleged that the appellant punched the deceased and kicked him after he fell to the ground, as part of a joint criminal enterprise with a co-accused. Both the appellant and the co-accused were convicted by jury on 5 September 1999 after a trial before Studdert J in the Supreme Court.

Neither the appellant nor his co-accused gave evidence at trial. The trial judge directed the jury that they could not impute guilt directly from that silence, but also commented that the jury could take the accused's failure to deny or contradict Crown evidence into account when weighing the value of that evidence.

The appellant appealed his conviction on four grounds: that the right to silence directions were erroneous, that directions on manslaughter were inadequate, that directions on self-defence were inadequate, and that warnings about the reliability of three Crown witnesses were insufficient.

  • Whether the trial judge's comments on the appellant's failure to give evidence contravened s 20(2) of the Evidence Act 1995 (NSW), which prohibits adverse comment on an accused's silence.
  • Whether, even if the direction was erroneous, the proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW) applied so that no substantial miscarriage of justice had occurred.
  • Whether the trial judge's directions on manslaughter were adequate.
  • Whether the trial judge's directions on self-defence were adequate.
  • Whether the trial judge's warnings about potentially unreliable Crown witnesses complied with s 165 of the Evidence Act 1995.

Decision

Right to silence directions

All three judges agreed that the trial judge's directions were erroneous. The judge's comment that the jury could use the appellant's silence to assess the weight of Crown evidence directly contradicted the separate direction that silence could not be used to infer guilt. The Court of Criminal Appeal held this was on all fours with the misdirections identified by the High Court in Azzopardi v R and Davies v R [2001] HCA 25. The Court also rejected any argument that the circumstances were sufficiently exceptional to justify comment under the Weissensteiner principle, because the Crown evidence was not of a kind that could only be explained by facts known solely to the appellant.

The proviso

The majority (Smart AJ and Barr J) held that the proviso in s 6(1) of the Criminal Appeal Act 1912 applied and that the appeal should be dismissed. The misdirection did not amount to a "fundamental error" that caused the proceedings to hardly be a trial at all. The relevant question was therefore whether a conviction was inevitable, and the majority found that it was. The Crown case on joint criminal enterprise was strong: the appellant had effectively admitted punching the deceased in his ERISP record of interview and had not denied kicking him. The Crown evidence was sufficiently robust that it required no assistance from any comment on the appellant's silence. Heydon JA dissented on this point and would have ordered a new trial.

Manslaughter, self-defence, and witness warnings

All three judges agreed on the remaining grounds. The manslaughter directions were adequate and the trial judge had sufficiently explained the principles and their application to the facts of each accused. Leave to raise the objection on appeal was refused because no objection had been taken at trial. The self-defence directions were likewise found not to be erroneous, and any arguable deficiency was too precise to found a ground of appeal without having been raised with the trial judge. The warnings given in relation to three potentially unreliable Crown witnesses were found to have complied with the substantive requirements of s 165 of the Evidence Act 1995; the fact that trial counsel made no complaint about the warnings supported the conclusion that they were adequate.

Orders Made

  • The appeal against conviction was dismissed (by majority of Smart AJ and Barr J).
  • Heydon JA would have allowed the appeal and ordered a new trial, but that order did not reflect the court's decision.

Key Takeaways

  • The Court of Criminal Appeal confirmed that a trial judge's comment inviting the jury to use an accused's silence to weigh Crown evidence, combined with a direction that silence cannot be used to infer guilt, constitutes a misdirection contravening s 20(2) of the Evidence Act 1995, consistent with Azzopardi v R [2001] HCA 25.
  • A Weissensteiner comment (permitting the jury to draw an inference from silence in rare and exceptional circumstances) is only available where the Crown evidence is of a kind that could only be explained by additional facts known solely to the accused. No such circumstances existed here.
  • Where a misdirection does not rise to the level of a "fundamental error" causing the proceedings to miscarry so as hardly to constitute a trial at all, the proviso in s 6(1) of the Criminal Appeal Act 1912 may be applied if conviction was inevitable on the evidence.
  • In a joint criminal enterprise murder case, the Crown does not necessarily need to prove that a particular accused performed the fatal act; proof of participation in the enterprise with the requisite intention is sufficient.
  • Failure to object to jury directions at trial, particularly on grounds of manslaughter and self-defence, requires leave under the Criminal Appeal Rules before those grounds may be raised on appeal, and leave will not readily be granted for highly specific complaints that could have been raised with the trial judge.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 20(2), 165
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Criminal Procedure Act 1986 (NSW)
- Criminal Appeal Rules

Cases
- Azzopardi v R; Davies v R [2001] HCA 25
- RPS v R (2000) 74 ALJR 449
- Weissensteiner v R (1993) 178 CLR 217
- Wilde v R (1988) 164 CLR 365
- Glennon v R (1994) 119 ALR 706
- Saad v R (1987) 78 ALR 667
- R v Bozzola [2001] NSWCCA 8
- R v Zorad (1990) 19 NSWLR 91