Citation: Baquayee v Regina [2006] NSWCCA 103
Court: New South Wales Court of Criminal Appeal
Date: 4 March 2006 (ex tempore); heard 3 April 2006
Judge(s): Grove J (principal judgment), Simpson J, Howie J
Background
The appellant was convicted in the District Court at Campbelltown on two counts of maliciously wounding with intent to do grievous bodily harm, arising from a shooting incident at a cinema complex at Mount Druitt on 22 April 2001. The Crown alleged the appellant produced a pistol during a fight and shot two brothers, causing serious and life-threatening injuries to both. The appellant elected not to give evidence at trial, and his counsel advanced the proposition that one of the victims had been the person who produced the firearm.
The jury acquitted the appellant on the more serious counts of wounding with intent to murder (the primary counts in the indictment) but convicted him on the alternative counts. Concurrent sentences were subsequently increased on a successful Crown appeal, with the overall non-parole period extended to June 2008.
The appellant, acting in person and with the assistance of a fellow inmate, filed a conviction appeal well outside the standard time limit. He attributed the delay partly to the efforts of his previous legal representation and the difficulties of self-representation.
Legal Issues
- Whether the trial judge erred under section 114 of the Evidence Act 1995 by admitting "in-court" identification evidence without a prior identification parade
- Whether the presentation of alternative counts in the indictment amounted to double jeopardy
- Whether the trial judge's direction to the jury on the appellant's right to silence was adequate, particularly in light of the High Court's guidance in Azzopardi v The Queen
Decision
On the identification ground, the Court found no error. There was no genuine identification issue at trial: the appellant's presence at the scene was not in dispute, and the defence case focused on who had produced and fired the gun, not on whether the appellant was present. No objection had been raised to the evidence at trial, and section 114 of the Evidence Act had no operative relevance in these circumstances.
On double jeopardy, the Court rejected the argument. The appellant had misapplied the doctrines of autrefois convict and autrefois acquit. The alternative counts in the indictment were authorised by section 23 of the Criminal Procedure Act 1986 and did not expose the appellant to being tried twice for the same offence. Acquittal on the primary counts and conviction on the alternatives arising from the same indictment does not constitute double jeopardy.
On the right to silence direction, Grove J held the trial judge's warning to the jury was appropriate to the circumstances of the case. The trial judge directed the jury that the appellant had exercised his right to silence and that no adverse inference should be drawn from that silence. Although the judge did not use the precise language suggested in Azzopardi about not using silence to fill gaps in the prosecution's evidence, Grove J confirmed that such precise language is not mandatory.
The Court followed R v Wilson (2005) in preference to R v Macris (2004), confirming that Macris should not be followed. The standard is whether the warning given was appropriate to the issues in the particular case, informed by the guidance in Azzopardi, not whether every suggested formulation from that decision was reproduced verbatim.
Orders Made
- Extension of time to appeal granted
- Conviction appeal dismissed
Key Takeaways
- No error arises from admitting in-court identification evidence under section 114 of the Evidence Act 1995 where identity is not genuinely in issue at trial and no objection was raised to the evidence.
- Alternative counts in an indictment do not engage the doctrines of autrefois convict or autrefois acquit. Acquittal on a primary count and conviction on an alternative count from the same indictment is not double jeopardy.
- A judge's direction on an accused's right to silence need not ritually reproduce every formulation described as "almost always desirable" in Azzopardi v The Queen. The operative question is whether the direction was adequate to the issues actually arising in the particular trial.
- The Court of Criminal Appeal confirmed that R v Macris should not be followed, reaffirming the approach in R v Wilson and the earlier line of authority including R v Richards, R v SMR, and R v Park.
- In dismissing the appeal, the Court signalled that an extension of time will not automatically follow from an explanation of delay, though it exercised its discretion to grant one given the particular circumstances of the appellant's self-represented status.
Legislation and Cases Referenced
Legislation:
- Criminal Procedure Act 1986 (NSW), s 23
- Evidence Act 1995 (NSW), s 114
Cases:
- Azzopardi v The Queen (2001) 205 CLR 50
- R v Macris [2004] NSWCCA 26
- R v Park [2003] NSWCCA 203
- R v Richards (2002) 128 A Crim R 204
- R v SMR [2002] NSWCCA 258
- R v Wilson (2005) 62 NSWLR 346