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Court of Criminal Appeal 6 December 2007

Sever v R

[2007] NSWCCA 339

Also reported as 179 A Crim R 110
Fraud & dishonesty
CRIMINAL LAW AND PROCEDURE TRIAL OMISSION DUE TO OVERSIGHT NO REQUEST BY COUNSEL DIRECTION REQUIRED IN CIRCUMSTANCES NO ERROR IN ADMISSION OF EVIDENCE

Citation: Sever v R [2007] NSWCCA 339
Court: NSW Court of Criminal Appeal
Date: 6 December 2007
Judge(s): Grove J, Hulme J, Simpson J

Background

The appellant was the sole director of a company whose business premises were destroyed by fire in the early hours of 1 June 2004. The Crown alleged the fire was deliberately lit and charged the appellant with dishonestly destroying property by means of fire with a view to making a gain, commonly known as arson.

The Crown's case rested on several strands of circumstantial evidence: signs that accelerant had been applied to the premises, a substantial increase in insurance cover shortly before the fire, the appellant's financial difficulties, and alleged lies told to police and an insurance assessor indicating consciousness of guilt.

The appellant did not give evidence at trial, though other defence witnesses did. A jury convicted him in the District Court following a trial before Hulme DCJ. The appellant then brought this appeal on two grounds.

  • Whether the trial miscarried because the trial judge failed to direct the jury that the appellant's decision not to give evidence could not be used against him, as required by the principles in Azzopardi v The Queen (2001) 205 CLR 50
  • Whether evidence relating to the activities of an accelerant-detection dog (Ellie) was wrongly admitted at trial, and whether a special warning about the dog's behaviour was required

Decision

Ground 1: Failure to give the Azzopardi direction

The High Court in Azzopardi established that, where an accused does not give evidence, it will almost always be desirable for the trial judge to warn the jury that silence in court is not evidence of guilt, does not constitute an admission, and cannot be used to fill gaps in the prosecution's case or as a makeweight in assessing whether the Crown has proved its case beyond reasonable doubt. No such direction was given here.

The Crown argued that the case differed from the Court's recent decision in R v Johnston [2007] NSWCCA 133, noting that defence counsel had not mentioned the appellant's silence in address and had not sought the direction when the judge asked if anything further was required. The Court rejected those distinctions. An affidavit from trial counsel confirmed the omission was an oversight, not a deliberate tactic, and the Court was unable to identify any tactical advantage the appellant could have gained from the absence of the warning.

The Court applied the ultimate test: whether the omission deprived the appellant of a fair chance of acquittal. The absence of the direction, combined with the Crown's reliance on alleged lies as consciousness of guilt, meant the answer was yes. Ground 1 succeeded.

Ground 2: Admissibility of the dog-detection evidence

The appellant relied on R v Benecke [1999] NSWCCA 163, which concerned tracker dog evidence and held that such evidence was of little probative value and required particular warnings, including that the dog could not be cross-examined. The Court distinguished Benecke on the facts. Ellie's responses served only as a screening tool to guide forensic police toward locations where samples would be collected. The probative evidence was the subsequent laboratory analysis of those samples, not the dog's behaviour. Whether the samples were gathered in response to the dog's indications or selected randomly was immaterial to the real question at trial. Ground 2 was rejected.

Orders Made

  • Appeal against conviction allowed
  • Conviction quashed
  • New trial ordered

Key Takeaways

  • The Azzopardi direction, warning a jury that an accused's silence in court is not evidence of guilt and cannot be used to fill gaps in the Crown's case, will almost always be required when an accused does not give evidence, though not in every case.
  • A failure to give the Azzopardi direction will constitute a miscarriage of justice where, in all the circumstances, the accused has lost a fair chance of acquittal. The absence of a request from defence counsel does not automatically excuse the omission.
  • Where defence counsel's failure to seek a direction results from oversight rather than deliberate tactics, an affidavit confirming that oversight may be considered by the Court of Criminal Appeal in assessing whether a miscarriage occurred.
  • Evidence of an accelerant-detection dog's behaviour is not inherently inadmissible, but the framework established in Benecke for warning juries about such evidence applies where the dog's conduct is itself the probative material. Where the dog's indications serve only to identify sampling locations and the real evidence is the chemical analysis of those samples, no special warning is required.
  • In dismissing the second ground, the Court confirmed that the admissibility and weight of indirect or circumstantial evidence must be assessed by reference to which part of the evidence chain actually carries the probative value.

Legislation and Cases Referenced

Cases:
- Azzopardi v The Queen (2001) 205 CLR 50
- R v Benecke [1999] NSWCCA 163
- R v Johnston [2007] NSWCCA 133

Legislation: No specific legislation was cited in the text of the decision.