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Court of Criminal Appeal 16 December 2005

JONES v R

[2005] NSWCCA 443

Assault & violence
CRIMINAL LAW APPEAL AGAINST CONVICTION EXAMINATION AND ADDRESS TO THE JURY SILENCE OF A WITNESS S 89 OF THE EVIDENCE ACT 1995 RIGHT TO SILENCE

Citation: Jones v R [2005] NSWCCA 443
Court: NSW Court of Criminal Appeal
Date: 16 December 2005
Judge(s): McClellan CJ at CL, Simpson J, Hoeben J

Background

The appellant was convicted by a District Court jury of maliciously wounding a woman with intent to do her grievous bodily harm, contrary to s 33 of the Crimes Act 1900. He was sentenced to eight years' imprisonment with a non-parole period of four years and six months.

The incident occurred in an underground car park in Gosford. The victim had exchanged brief pleasantries with the appellant, apparently believing she recognised him from high school. The appellant's companion, Ms Innes, then struck the victim. Three independent eyewitnesses, along with the victim's son, gave evidence that the appellant subsequently retrieved a steering wheel "club lock" and struck the victim with it while she lay on the ground.

The central issues at trial were the identity of the person who inflicted the injuries and, if that person was the appellant, whether he had the requisite intent to cause grievous bodily harm. The appellant denied striking the victim.

  • Whether the trial miscarried as a result of the Crown's cross-examination of Ms Innes and its address to the jury in relation to her evidence
  • Whether the trial judge's directions to the jury regarding Ms Innes's pre-trial silence were erroneous, particularly in light of s 89 of the Evidence Act 1995, which protects the right to silence
  • Whether, even if errors occurred, the proviso under the Criminal Appeal Act 1912 applied, on the basis that the jury would inevitably have reached the same verdict

Decision

The Court accepted that certain irregularities occurred in the way Ms Innes's evidence was handled at trial. The Crown's cross-examination of Ms Innes, and the trial judge's directions to the jury about her earlier silence, raised concerns under s 89 of the Evidence Act 1995. That section prohibits the drawing of adverse inferences from a person's exercise of the right to silence.

However, McClellan CJ at CL found these errors did not amount to "such a departure from the essential requirements of the law that it goes to the root of the proceedings." The trial judge had, at least in part, addressed the problem by reminding the jury that Ms Innes, like the accused, was entitled to remain silent, and that this was a matter to keep in mind.

On the second question, the Court considered whether conviction was inevitable even absent the misdirection. Three independent witnesses, two of whom had no connection to any of the parties, gave consistent and convincing accounts that the appellant wielded the club lock and struck the victim while she was on the ground. Their evidence was considered highly persuasive, and any inconsistencies between Crown witnesses were described as minor and readily explicable by differences in vantage points.

The Court concluded that, even accepting that the credibility of Ms Innes was affected by the cross-examination and directions, the Crown case was overwhelming. The appellant had not lost a chance of acquittal that was fairly open to him. All three judges agreed the appeal should be dismissed.

Orders Made

  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that errors relating to a witness's right to silence under s 89 of the Evidence Act 1995 will not necessarily warrant a new trial if those errors are not fundamental and conviction was inevitable on the remaining evidence.
  • Under the Criminal Appeal Act 1912, the proviso permitting dismissal of an appeal despite a misdirection requires the court to be satisfied that the jury would inevitably have reached the same verdict, even where the case against the accused is otherwise strong.
  • Partial remedial directions from a trial judge, reminding the jury of a witness's right to remain silent, were treated as a mitigating factor when assessing the overall effect of the trial irregularity.
  • Sufficient evidence existed here from multiple independent eyewitnesses, with no apparent motive to fabricate, to render the conviction inevitable notwithstanding concerns about one witness's treatment at trial.
  • In dismissing the appeal, the Court reinforced that the right to silence attaches not only to accused persons but also to other witnesses, and that adverse comment on a witness's pre-trial silence engages s 89 protections.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 33
- Evidence Act 1995 (NSW), s 89
- Criminal Appeal Act 1912 (NSW)

Cases:
- Azzopardi v The Queen (2001) 205 CLR 50
- Driscoll v The Queen (1977) 137 CLR 517
- Gallagher v The Queen (1986) 160 CLR 392
- Mraz v The Queen (1955) 93 CLR 493
- Petty v The Queen (1991) 173 CLR 95
- R v Glennon (1994) 179 CLR 1
- R v Storey (1978) 140 CLR 364
- R v Foster [1955] NZLR 1194
- RPS v The Queen (2000) 199 CLR 620
- Wilde v The Queen (1988) 164 CLR 365