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Court of Criminal Appeal 11 October 2001

R v Dover

[2001] NSWCCA 412

Assault & violence

Citation: Dover v R [2001] NSWCCA 412
Court: NSW Court of Criminal Appeal
Date: 11 October 2001
Judge(s): Stein JA, Studdert J, Greg James J

Background

The appellant was convicted by a District Court jury in February 1999 of malicious wounding with intent to do grievous bodily harm. The Crown case centred on the alleged victim's evidence that the appellant shot him in the face during a drug transaction. The victim's credibility was challenged in cross-examination, and an alibi was raised through the appellant's father's evidence. The appellant did not give evidence at trial.

In summing up, the trial judge directed the jury that because the appellant had not denied or contradicted the complainant's evidence, the jury could "more readily" accept that evidence and "more readily" discount any doubt about it. The judge also told the jury that the absence of evidence from the appellant meant nothing put to the complainant in cross-examination was supported by evidence.

The appellant appealed his conviction on the ground that those directions were misdirections, in light of subsequent High Court authority on an accused's right to silence.

  • Whether the trial judge's directions to the jury about the appellant's election not to give evidence constituted misdirections
  • Whether those directions impermissibly invited the jury to use the appellant's silence to strengthen the prosecution case
  • Whether the proviso under section 6 of the Criminal Appeal Act could save the conviction despite any error

Decision

By the time the appeal was heard, the High Court had delivered two important decisions: RPS v The Queen (2000) and Azzopardi v The Queen; Davis v The Queen (2001). Those decisions clarified the very narrow circumstances in which any comment may be made about an accused's failure to give evidence, and identified the types of directions that constitute misdirections.

The joint judgment in Azzopardi held that a comment on an accused's silence is only permissible where the prosecution is inviting an inference based on facts that would be peculiarly within the accused's knowledge and that are additional to those already in evidence. Mere failure to contradict or deny existing evidence does not justify comment. An accused is not required, in an accusatorial trial, to explain or contradict matters already the subject of prosecution evidence.

The Court of Criminal Appeal found that the directions given at trial in this case fell squarely within the errors identified in RPS and restated in Azzopardi. The directions had told the jury it could use the silence to more readily accept the complainant's evidence and to discount doubt about it, and that the absence of denial left cross-examination unsupported by evidence. Each of those directions was erroneous.

The Crown properly conceded the appeal should be allowed. The Court held that the proviso in section 6 of the Criminal Appeal Act could not apply given the significance of the misdirections identified under settled High Court authority.

Orders Made

  • Appeal allowed and the conviction and sentence quashed
  • New trial ordered

Key Takeaways

  • A trial judge cannot direct a jury that it may "more readily accept" prosecution evidence, or "more readily discount" doubt about it, simply because an accused chose not to give evidence contradicting that evidence.
  • Under the principles confirmed in Azzopardi, comment on an accused's silence is only permissible where the prosecution seeks to draw an inference from facts peculiarly within the accused's knowledge that are additional to what prosecution witnesses have already placed in evidence.
  • Mere failure by an accused to contradict existing prosecution evidence does not supply the foundation for any adverse comment on silence; the accusatorial nature of a criminal trial places no obligation on an accused to explain or deny what witnesses have already said.
  • The Court of Criminal Appeal confirmed that the proviso under section 6 of the Criminal Appeal Act was unavailable where the misdirections on silence were as significant as those identified here.
  • Directions in this form, framed around what a jury may "more readily" conclude from an accused's silence, were directly analogous to those condemned in both RPS and Azzopardi and could not be treated as harmless error.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act (NSW), s 6

Cases:
- RPS v The Queen (2000) 199 CLR 620
- Azzopardi v The Queen; Davis v The Queen (2001) 179 ALR 349
- Weissensteiner v The Queen (1993) 178 CLR 217