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Court of Criminal Appeal 16 November 2006

GIOTAS v. REGINA

[2006] NSWCCA 358

Sexual offences
APPEAL AGAINST CONVICTION ACCUSED DID NOT GIVE EVIDENCE APPEAL ALLOWED RETRIAL.

Citation: GIOTAS v. REGINA [2006] NSWCCA 358
Court: New South Wales Court of Criminal Appeal
Date: 16 November 2006
Judge(s): McClellan CJ at CL, Hidden J, Hall J

Background

The appellant was convicted by a jury in the District Court of two counts of sexual intercourse without consent under s.61I of the Crimes Act 1900 (NSW). The charges arose from an incident on 2 August 2001 at residential premises in Marrickville, where the appellant, a real estate principal, had asked the complainant, a receptionist at his agency, to collect a contract.

The complainant gave evidence that the appellant sexually assaulted her on that occasion, describing two separate acts of intercourse. The defence case, put to the complainant in cross-examination but not supported by the appellant giving evidence himself, was that any sexual intercourse was consensual and that only one act had occurred.

The appellant did not testify at trial. His account, that the encounter was consensual, was conveyed only through the cross-examination of the complainant and through an account relayed by another witness, a Mr Ford.

  • Whether the trial judge erred by failing to direct the jury about the significance of the appellant's failure to give evidence (the so-called Azzopardi direction)
  • Whether the Crown's closing address constituted a miscarriage of justice through undue emotion and misstatement of evidence
  • Whether the trial judge erred in not giving a Longman direction (relating to delay in complaint)
  • Whether the trial miscarried because of the absence of new evidence

Decision

The Court of Criminal Appeal upheld the first ground of appeal and, on that basis, found it unnecessary to consider the remaining three grounds. The central issue was the trial judge's failure to give an Azzopardi direction, which is a direction that instructs a jury that it must not draw any adverse inference from an accused's decision not to give evidence.

The Court identified three compounding factors that made the omission particularly significant in these circumstances. First, the trial judge indicated he would not give any such direction, and trial counsel for the appellant acquiesced. Second, the Crown's closing address repeatedly and emphatically told the jury that the "only" evidence before them was the complainant's account, reinforcing by implication that the appellant had not testified. Third, the trial judge's own summing-up echoed that framing, noting that the evidence contained no account of a single act of intercourse other than a doctor's note, and drawing attention to the fact that the version put by the defence had come through the appellant's account to Mr Ford rather than from the appellant himself.

Hall J, with whom McClellan CJ at CL and Hidden J agreed, concluded that the combined effect of these factors elevated the omission of the Azzopardi direction from a technical error into a miscarriage of justice. The jury had not been told it could draw no adverse inference from the appellant's silence, and both the Crown and the judge had highlighted the evidentiary gap left by that silence in ways that risked precisely such an inference being drawn.

Orders Made

  • Leave to appeal granted
  • Appeal upheld
  • Conviction quashed
  • New trial ordered

Key Takeaways

  • An Azzopardi direction, which tells the jury it must not draw adverse inferences from an accused's silence, can become essential rather than merely desirable depending on the overall conduct of a trial.
  • Where both the Crown's closing address and the trial judge's summing-up repeatedly draw the jury's attention to the absence of evidence from the accused, the failure to give an Azzopardi direction is capable of constituting a miscarriage of justice, even if trial counsel acquiesced in that course.
  • Acquiescence by trial counsel to the omission of a direction does not preclude the Court of Criminal Appeal from granting leave to appeal and setting aside a conviction where a miscarriage of justice results.
  • The Court of Criminal Appeal confirmed that each of the three identified factors, taken together, created conditions in which the uncorrected gap could prejudice the accused before the jury.
  • Once the Court upheld the first ground of appeal on miscarriage of justice grounds, consideration of the remaining grounds became unnecessary for the disposition of the matter.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s.61I
- Criminal Appeal Act 1912 (NSW)
- Criminal Appeal Rules (NSW), r.4

Cases:
- Azzopardi v Regina (2001) 205 CLR 50
- Glennon v Regina (1993-94) 199 CLR 1
- Regina v Wilson [2005] NSWCCA 20
- Regina v Richards [2002] NSWCCA 38
- Regina v Park [2003] NSWCCA 203
- Regina v SMR [2002] NSWCCA 258
- Regina v Graham [2005] NSWCCA 127
- Regina v Burns [2003] NSWCCA 30
- Regina v Le [2003] SASC 2