Citation: Regina v Chung [2001] NSWCCA 484
Court: NSW Court of Criminal Appeal
Date: 19 November 2001
Judge(s): Spigelman CJ, Sully J, Greg James J
Background
The appellant was convicted in the Sydney District Court on a charge of supplying heroin in an amount not less than a large commercial quantity, contrary to the Drug Misuse and Trafficking Act 1985. The offending was alleged to have occurred between June and November 1993. Following conviction, the appellant was sentenced to life imprisonment on 17 April 1998.
The appeal was brought out of time, requiring the Court to first grant an extension of time before addressing the substance of the grounds.
The principal evidence against the appellant at trial came from a co-offender, Mr Houang. The appellant did not give evidence in his own defence, and the trial judge directed the jury in a way that invited them to draw adverse inferences from that silence.
Legal Issues
- Whether the trial judge's directions to the jury concerning the appellant's election not to give evidence were legally permissible
- Whether those directions constituted a miscarriage of justice warranting the setting aside of the conviction
- Whether a retrial, rather than an acquittal, was the appropriate remedy
Decision
The trial judge directed the jury that the appellant's failure to deny or contradict the co-offender's evidence was a circumstance they could take into account. The direction specifically encouraged the jury to discount doubts about the co-offender's evidence because it remained uncontradicted by the appellant.
The High Court, in RPS v The Queen (2000) 199 CLR 620 and Azzopardi v The Queen [2001] HCA 25, subsequently held that directions of this character should not be given except in particular circumstances. The Court of Criminal Appeal found no suggestion that any such exceptional circumstances existed in this case.
Spigelman CJ noted that the trial judge had acted in accordance with the then-prevailing practice in New South Wales, so the error reflected no personal criticism of the judge. Nevertheless, because Houang's evidence was central to the prosecution case, the direction impermissibly reinforced that evidence in the jury's assessment. The Crown did not seek to argue that no miscarriage of justice had resulted.
The Court held that the flawed direction produced a miscarriage of justice and that a retrial was required.
Orders Made
- Leave to appeal out of time granted
- Appeal allowed
- New trial ordered
Key Takeaways
- A jury direction inviting the jury to draw adverse inferences from an accused's election not to give evidence is impermissible except in particular circumstances, as established by the High Court in RPS v The Queen and Azzopardi v The Queen.
- Where such a direction improperly reinforces the central Crown evidence, a miscarriage of justice will ordinarily follow, making the conviction unsustainable on appeal.
- The Court of Criminal Appeal confirmed that acting in conformity with the prevailing state practice at the time of trial does not insulate a conviction from appeal if that practice was later overruled by binding High Court authority.
- In applying the post-Azzopardi principles, the Court assessed whether any exceptional circumstances existed that could have justified the direction; finding none, it upheld the appeal.
- Procedurally, the Court granted leave to appeal out of time and ordered a retrial rather than an acquittal, leaving the matter to be determined afresh.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
Cases:
- RPS v The Queen (2000) 199 CLR 620
- Azzopardi v The Queen [2001] HCA 25; 75 ALJR 931