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Court of Criminal Appeal 27 July 2001

R v Chun Hing LAW

[2001] NSWCCA 291

Also reported as 122 A Crim R 542
Drugs
CRIMINAL LAW EVIDENCE ACCUSED NOT GIVING EVIDENCE RIGHT TO SILENCE CIRCUMSTANCES WHERE COMMENT PERMISSIBLE

Citation: R v Chun Hing LAW [2001] NSWCCA 291
Court: NSW Court of Criminal Appeal
Date: 27 July 2001
Judge(s): Meagher JA, Kirby J, Newman AJ

Background

The appellant was convicted in the Supreme Court of conspiring to import not less than a commercial quantity of heroin into Australia, contrary to the Customs Act 1901. The Crown case alleged his involvement in five separate heroin importations between January 1994 and January 1995, using consignments of oriental objects d'art as cover. He received a life sentence following conviction.

The Crown's case was described by the Court of Criminal Appeal as a strong one. It included documentary evidence, surveillance, the evidence of a co-conspirator who gave evidence at trial, and evidence capable of supporting an inference of consciousness of guilt.

The appellant did not give evidence at trial. Ireland J, the trial judge, made references to that silence during the summing-up and, critically, again in response to a jury question during deliberations. Those references formed the basis of the appeal.

  • Whether the trial judge's directions concerning the appellant's failure to give evidence contravened s 20(2) of the Evidence Act 1995 (NSW)
  • Whether the relevant passages constituted impermissible directions to the jury rather than permissible comment
  • Whether the proviso applied, such that the conviction could be upheld despite any misdirection

Decision

Newman AJ, with whom Meagher JA and Kirby J agreed, identified Ground 4 as determinative and declined to address the remaining grounds. The trial judge's summing-up included passages telling the jury that an inference adverse to the accused could more readily be drawn in the absence of an explanation, and that a hypothesis consistent with innocence may cease to be rational or reasonable where evidence supporting it might lie within the accused's knowledge. These passages were repeated in response to the jury's direct question during deliberations.

The Court held that these passages were framed as directions that the jury was bound to follow, rather than as comment that the jury was free to disregard. Following the High Court's decision in Azzopardi v The Queen (2001) HCA 25, the distinction between permissible comment and impermissible direction is critical. An observation of the kind considered in Weissensteiner v The Queen (1993) 178 CLR 217 may, in appropriate circumstances, be raised as comment. It cannot, however, be elevated into a direction. The Court found that Ireland J had done exactly that, constituting error.

The Court then considered whether the proviso should apply to preserve the conviction despite the misdirection. Even acknowledging the strength of the Crown case, the Court declined to apply the proviso. Particularly significant was that the last of the misdirections arose in direct response to a jury question late in deliberations. In those circumstances, the Court could not be satisfied the misdirection had not deprived the appellant of a chance of acquittal.

Meagher JA added a pointed observation: on the current state of the authorities, a trial judge would be well advised never to refer to the accused's silence in summing-up at all, much less to give directions on the topic.

Orders Made

  • Appeal upheld
  • Conviction and sentence quashed
  • The appellant is to have a new trial at a date and place to be fixed

Key Takeaways

  • Under s 20(2) of the Evidence Act 1995 (NSW), a trial judge may not direct a jury that it may draw an adverse inference from an accused's failure to give evidence; any reference to that silence is, at most, permissible comment that the jury may disregard.
  • The Court of Criminal Appeal confirmed that the line between comment and direction is not merely semantic: framing an observation about silence in mandatory or instructional terms crosses into prohibited territory, regardless of the underlying strength of the Crown case.
  • Misdirections given in response to jury questions during deliberations carry particular weight when assessing whether the proviso applies, because they reach the jury at a critical point in its reasoning.
  • Azzopardi v The Queen (2001) HCA 25 settled the relevant principle, and the Court applied the orthodox fiction that the law has always been as stated by the court of ultimate authority, meaning earlier directions given before that decision were still assessed against that standard.
  • Meagher JA's observation that a trial judge would be well advised never to refer to an accused's silence at all reflects the Court's caution about the risks of any such reference, even one intended to be favourable to the accused.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), s 20(2)
- Customs Act 1901 (Cth), s 233B

Cases:
- Weissensteiner v The Queen (1993) 178 CLR 217
- RPS v The Queen [2000] HCA 3
- Azzopardi v The Queen [2001] HCA 25