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Court of Criminal Appeal 9 December 2003

R v Stavrinos

[2003] NSWCCA 339

Also reported as 140 A Crim R 595
Drugs
CRIMINAL LAW ACCUSED'S RIGHT TO SILENCE

Citation: R v Stavrinos [2003] NSWCCA 339
Court: NSW Court of Criminal Appeal
Date: 9 December 2003
Judge(s): Barr J; Greg James J; Miles AJ

Background

The appellant was convicted in the District Court of two counts of supplying MDMA (ecstasy) following a jury trial. Police observed him at a late-night meeting in a car park, then searched his car and home, finding quantities of prohibited drugs, resealable plastic bags, and approximately $17,000 in cash stored in envelopes inside a locked briefcase.

The appellant's explanation for the cash was that he had been holding it in trust for contributors to his late brother's wedding, consistent with Greek cultural tradition. Witnesses gave supporting evidence at trial. When police at the station asked about the briefcase contents, the appellant said "just some personal papers," then provided the combination to open it. He subsequently declined to participate in a recorded interview, and the trial judge immediately directed the jury on his right to silence.

The appellant was acquitted on two corresponding Speed charges, where the Crown bore the full burden of proving intent to supply. The convictions on the ecstasy counts, where a statutory presumption applied and the burden shifted to him to disprove supply, were the subject of the appeal.

  • Whether the Crown Prosecutor's closing address impermissibly invited the jury to draw an adverse inference from the appellant's exercise of his right to silence.
  • Whether the trial judge's subsequent directions to the jury adequately corrected that invitation.
  • Whether, in the absence of an adequate corrective direction, verdicts of acquittal rather than a retrial were the appropriate remedy.

Decision

The Court found that the Crown Prosecutor's closing address crossed the line protecting the right to silence. The address explicitly acknowledged the appellant had no obligation to speak, but then asked the jury to consider why he had not told police that the money belonged to others. That reasoning invited an adverse inference from his silence, directly undermining the protection.

The trial judge's summing-up compounded the problem rather than curing it. The judge rehearsed the Crown's submission about the appellant's failure to explain the money to police, and although noting there was no obligation on the appellant to say anything, did not provide a clear corrective direction telling the jury it could not reason adversely from that silence.

Miles AJ agreed the appeal should be allowed but noted an additional factual error: the Crown's address, and the summing-up, had mistakenly attributed statements to the appellant (that he did not know what the items were or how they got there) that he had never actually made. That factual inaccuracy meant a miscarriage of justice could not be excluded.

On remedy, Barr J considered the strength of the Crown case, noting the acquittals on the charges where the Crown bore the onus, the supporting evidence from witnesses about the wedding money, and the fact that the appellant had already served nearly half his non-parole period. The Court concluded a retrial was not warranted and directed verdicts of acquittal.

Orders Made

  • Appeal allowed.
  • Convictions quashed.
  • Verdicts of acquittal entered.

Key Takeaways

  • A Crown closing address that acknowledges an accused's right to silence but then invites the jury to draw an adverse inference from its exercise constitutes an impermissible breach of that right, even where the invitation is framed as a question for the jury's consideration.
  • Where a trial judge's summing-up rehearses such an invitation without giving a clear corrective direction, the misdirection is not remedied and may constitute a miscarriage of justice.
  • Factual inaccuracies in a Crown address and summing-up, attributing statements to an accused that were never made, independently support a finding that a miscarriage of justice cannot be excluded.
  • The Court of Criminal Appeal confirmed that the appropriate remedy is not always a retrial: where the Crown case is not strong, the accused has already served a substantial portion of the sentence, and the defence case may be strengthened on retrial, verdicts of acquittal may be ordered.
  • Miles AJ flagged, without resolving, whether the common law prohibition on drawing adverse inferences from silence applies with the same force where the accused bears an onus of proof on a relevant issue, and whether such conduct falls within or outside s 89 of the Evidence Act 1995.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act, s 8
- Evidence Act 1995 (NSW), s 89

Cases:
- Petty and Maiden v The Queen (1991) 173 CLR 95
- King v The Queen (1986) 161 CLR 423