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7
Court of Criminal Appeal 28 February 2002

R v Richards

[2002] NSWCCA 38

Also reported as (2002) 128 A Crim R 204
Assault & violenceTheft & property
DIRECTIONS ACCUSED GIVES NO EVIDENCE AT TRIAL ABSENCE OF DIRECTIONS NO APPLICATION FOR DIRECTIONS TRIAL COUNSEL'S AFFIDAVIT WHETHER MISCARRIAGE OF JUSTICE

Citation: Richards v R [2002] NSWCCA 38
Court: NSW Court of Criminal Appeal
Date: 28 February 2002
Judge(s): Hodgson JA, Levine J, Howie J

Background

The appellant was convicted by a jury in the District Court at Dubbo of robbery in company. The Crown case was that he participated in a joint criminal enterprise in which a woman lured a victim outside a hotel, where he was then assaulted and robbed of his keys, phone, and gold chains. The victim identified the appellant at the scene by pointing him out to police shortly after the robbery.

The appellant's cousin, who had initially been charged alongside him, had charges discontinued mid-trial in exchange for his giving evidence against the appellant. The cousin's video-recorded police interview (an ERISP) was admitted into evidence without objection. The appellant made no statement to police and gave no evidence at trial.

No application was made at any stage for directions to the jury about the absence of any police interview with the appellant or about the appellant's silence at trial. The trial judge nevertheless raised the question of specific directions with counsel at the close of evidence.

  • Whether the trial judge erred by failing to direct the jury that the absence of any statement by the appellant upon arrest could not be used to draw adverse inferences against him.
  • Whether the trial judge erred by failing to direct the jury that the appellant's silence at trial was not evidence of guilt, could not constitute an admission, and could not be used to fill gaps in the prosecution case or as a makeweight in assessing proof beyond reasonable doubt.
  • Whether the cumulative effect of the missing directions, together with the jury's potential exposure to the "usual practice" of cautioning suspects shown in the co-accused's ERISP, constituted a fundamental flaw resulting in a miscarriage of justice.
  • Whether the sentence imposed was outside the available range.

Decision

On the first ground, the Court found there was simply no evidence that the appellant had refused to be interviewed or had exercised a right to silence. The only relevant police evidence was that an officer had spoken to the appellant at the station and charged him. The Court was not persuaded that the absence of any evidence on this topic would lead a jury to draw adverse inferences. Levine J observed that any such direction might itself have prompted the very speculation it sought to prevent.

On the second component of the appellant's cumulative argument, the Court was not satisfied that the admission of the co-accused's ERISP, which showed the "usual practice" of police cautions, gave rise to an available inference that the appellant had exercised a right to silence. The ERISP had been admitted without objection and was thoroughly tested in cross-examination.

On the third element, the failure to give the standard directions about silence at trial, the Court noted that no application had been made for those directions despite the trial judge specifically raising the question of directions with counsel. The Court considered the affidavit of trial counsel on the point and was not satisfied that the absence of the direction, either alone or in combination with the other matters, produced a miscarriage of justice or deprived the appellant of a real chance of acquittal.

On sentence, the appellant's counsel conceded no error of law, principle, or approach was apparent and instead contended only that the sentence was altogether outside the range. The Court rejected that submission, finding the sentence was proper and appropriate having regard to the objective seriousness of the offence, the appellant's antecedents, and the sentencing judge's careful treatment of the appellant's subjective circumstances, including a finding of special circumstances.

Orders Made

  • Conviction appeal dismissed.
  • Leave to appeal against sentence granted, but sentence appeal dismissed.

Key Takeaways

  • Where there is no evidence that an accused refused to be interviewed by police, no direction about silence upon arrest may be required, and giving such a direction might itself invite adverse speculation by the jury.
  • A failure to give jury directions about an accused's silence at trial will not automatically constitute a miscarriage of justice, particularly where no application for those directions was made and the trial judge specifically invited counsel to raise the matter.
  • The Court of Criminal Appeal treated the cumulative framing of multiple missing-direction complaints with caution, examining each component individually before assessing whether their combined effect undermined the trial.
  • Upholding the sentence, the Court confirmed that a sentencing judge may take into account an offender's role as a "follower" within a joint criminal enterprise while still finding that person a willing and active participant.
  • No error of principle will be found in a sentence merely because counsel characterises it as outside the range, without identifying a specific error of approach or principle in the sentencing judge's reasoning.

Legislation and Cases Referenced

Cases cited:
- Azzopardi v R [2001] HCA 25; (2001) 179 ALR 349
- Grey v R [2001] HCA 65
- OGD (1997) 45 NSWLR 744
- Queen v Bozkus [2001] NSWCCA 68
- R v Moussa [2001] NSWCCA 427
- Regina v Bozzola [2001] NSWCCA 8
- Regina v Giri [2001] NSWCCA 197
- RPS (2000) 199 CLR 620