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Court of Criminal Appeal 16 October 2003

R v GED

[2003] NSWCCA 296

Also reported as 141 A Crim R 135
Sexual offences
CRIMINAL LAW ACCUSED'S RIGHT TO REMAIN SILENT WHETHER TRIAL MISCARRIED.

Citation: GED v R [2003] NSWCCA 296
Court: NSW Court of Criminal Appeal
Date: 16 October 2003
Judge(s): Studdert J, Barr J, Greg James J

Background

The appellant (identified only as GED) was tried in the District Court on five counts of aggravated sexual offences against a 14-year-old boy. The complainant's age was the aggravating feature across all charges. The alleged offences occurred on two separate occasions in March 2002 at Woolgoolga, involving conduct at the complainant's home and in a car in a bush location.

The appellant denied all offending and did not give evidence at trial. He was convicted on four of the five counts and sentenced to terms of imprisonment. He appealed against all four convictions, arguing that several aspects of the trial judge's directions to the jury caused a miscarriage of justice.

The central appeal ground concerned the trial judge's instruction about what the jury could infer from defence counsel's failure to cross-examine Crown witnesses on certain statements the appellant had made during his police interview.

  • Whether the trial judge's direction that the jury could treat defence counsel's failure to cross-examine as a concession that the appellant's denials in his record of interview were untrue constituted a misdirection
  • Whether that misdirection caused a miscarriage of justice sufficient to warrant setting aside all four convictions
  • Whether the trial judge failed to give the jury other necessary directions, including directions on separate consideration of each count, reasonable doubt as between counts, tendency reasoning, delayed complaint, and balance

Decision

During his police interview, the appellant denied telling the complainant that he had shot someone and served seven years in gaol. Two Crown witnesses gave evidence that the appellant had made such a statement. Defence counsel did not cross-examine either witness to challenge that evidence. The trial judge directed the jury that this failure to cross-examine could be treated as a concession by the appellant that his denial in the record of interview was false, and that the false denial could be used as evidence of guilt in the manner described in Edwards v The Queen (1993) 178 CLR 193 (a High Court case establishing when jury directions on lies told by an accused are appropriate).

The Court of Criminal Appeal found this direction was seriously flawed. The judge had told the jury it could treat the failure to cross-examine as an implied concession that the denials were lies, without informing the jury of other legitimate reasons why counsel might not cross-examine on a particular matter. The direction did not acknowledge, for example, that counsel may have had tactical or forensic reasons unrelated to the truth of the assertion. That omission was particularly significant given the appellant's right to silence.

The Court held that the defective direction created a real risk of miscarriage of justice. The erroneous instruction was capable of affecting not just the counts directly connected to the impugned evidence but potentially all four convictions, because the jury may have been led to draw an adverse inference that permeated its assessment of the whole case. On that basis, the Court concluded none of the convictions could stand.

The Court also noted six further grounds of appeal but declined to examine each in detail, observing that any one of them, if made good, would produce the same result. A new trial was ordered, with the Court acknowledging, by reference to Markuleski (2001) 52 NSWLR 82, that public vindication of the complainant remained a relevant consideration.

Orders Made

  • Appeal allowed
  • Convictions and sentences quashed
  • New trial ordered

Key Takeaways

  • A trial judge directing a jury that it may treat defence counsel's failure to cross-examine on matters in a record of interview as a concession by the accused must also direct the jury on other possible explanations for that failure; omitting those alternatives produces a defective direction.
  • Where a record of interview is tendered by the Crown and the accused has exercised the right to silence at trial, directions about the significance of non-cross-examination must be constructed with particular care to avoid undermining that right.
  • The Court of Criminal Appeal confirmed that a misdirection need not directly infect every count individually; where a direction may have influenced the jury's general assessment of the accused's credibility, the resulting risk of miscarriage can extend to all convictions.
  • Appellate courts will order a new trial even where an appellant has served a substantial portion of a non-parole period, particularly in cases involving serious sexual offences against children, where public vindication of the complainant is a relevant consideration.
  • Remaining grounds of appeal that would each independently produce the same orders need not be individually determined once the principal ground is established.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act, s 6

Cases:
- Azzopardi v The Queen (2001) 205 CLR 50
- Dyers v The Queen [2002] HCA 45
- Edwards v The Queen (1993) 178 CLR 193
- R v Abdallah (2001) 127 A Crim R 46
- R v Birks (1990) 19 NSWLR 677
- R v Manunta (1989) 54 SASR 17
- R v Markuleski (2001) 52 NSWLR 82
- RPS v The Queen (2000) 199 CLR 620