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Court of Criminal Appeal 14 March 2007

JOHNSTON v R

[2007] NSWCCA 133

Assault & violenceTheft & property
APPEAL AGAINST CONVICTION ROBBERY INFLICTING GRIEVOUS BODILY HARM AZZOPARDI DIRECTION REQUIRED

Citation: Johnston v R [2007] NSWCCA 133
Court: NSW Court of Criminal Appeal
Date: 14 March 2007
Judge(s): McClellan CJ at CL, Hulme J, Hislop J

Background

The appellant was convicted in the District Court at Wollongong of robbery inflicting grievous bodily harm under s 98 of the Crimes Act 1900. The offence related to an alleged attack on a man in the early hours of 15 March 2002 at Warrawong, in which cash and jewellery were taken and the victim suffered serious injuries. The appellant received a total sentence of five years with a non-parole period of two and a half years.

The prosecution case rested primarily on the victim's identification of the appellant as one of his attackers. The appellant participated in a recorded police interview (an ERISP) in which he denied any involvement and offered an innocent explanation for abrasions on his knuckles. He did not give evidence at trial.

Defence counsel addressed the jury on the appellant's right to silence but anticipated the trial judge would give formal directions on the point. No such directions were given, and neither the prosecutor nor defence counsel raised the omission with the judge.

  • Whether the trial miscarried because the judge gave no direction to the jury about the appellant's right not to give evidence and the proper use of his silence at trial.
  • Whether the absence of an Azzopardi direction (a warning that an accused's silence in court cannot be used as evidence against them or to fill gaps in the prosecution case) was fatal to the conviction in the circumstances.

Decision

The Court of Criminal Appeal held that the failure to give any direction on the accused's right to silence was a significant error. The court noted that juries may naturally infer, even if they stop short of concluding outright guilt, that silence in the face of serious allegations makes it more likely the accused committed the offence. To guard against that reasoning, the High Court in Azzopardi v The Queen (2001) 205 CLR 50 established that it will almost always be necessary to warn the jury that silence is not evidence against the accused, does not amount to an admission, and cannot be used to fill gaps in the prosecution's evidence or bolster proof beyond reasonable doubt.

The court distinguished this case from earlier decisions where incomplete directions had been found inadequate. Here, no direction at all was given. The court also noted that the need for the direction was made more acute by the trial judge's directions on the Crown's "lies" submission. By instructing the jury that the appellant was alleged to have lied because he feared the truth would implicate him, the judge effectively invited the jury to consider whether the appellant's failure to testify meant he could not rebut the Crown's case.

McClellan CJ at CL accepted that the omission by defence counsel was likely an oversight rather than a deliberate tactical choice, and that the Crown Prosecutor was equally obliged to have identified the problem. Leave to raise the ground of appeal was granted, and all three judges agreed that the conviction could not stand.

Orders Made

  • Appeal upheld.
  • Conviction quashed.
  • New trial ordered.

Key Takeaways

  • Where an accused does not give evidence at trial, a direction in accordance with Azzopardi v The Queen will almost always be required, warning the jury that silence in court is not evidence of guilt, does not constitute an admission, and cannot be used to supplement the prosecution case.
  • The Court of Criminal Appeal confirmed that a total absence of any right-to-silence direction is a more serious failing than giving an incomplete one, and that the error caused the trial to miscarry.
  • Where a trial judge directs the jury to consider whether a "lies" direction implicates the accused, that context heightens rather than reduces the need for an accompanying Azzopardi direction.
  • Responsibility for identifying the omission did not rest solely with defence counsel. The prosecution was also expected to be alert to the need for the direction.
  • An oversight by counsel, without a discernible tactical reason for the omission, is not a barrier to the Court of Criminal Appeal granting leave to raise the point on appeal.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 98 (robbery inflicting grievous bodily harm)

Cases:
- Azzopardi v The Queen (2001) 205 CLR 50
- R v Bradley Scott Burns (2003) 137 A Crim R 557
- R v Wilson [2005] NSWCCA 20; 62 NSWLR 346
- R v Dodd [2002] NSWCCA 418; 135 A Crim R 32
- R v Sabbah [2004] NSWCCA 28