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Court of Criminal Appeal 13 April 2012

O'Grady v R

[2012] NSWCCA 62

Assault & violenceTheft & property

Citation: O'Grady v R [2012] NSWCCA 62
Court: Court of Criminal Appeal of NSW
Date: 13 April 2012
Judge(s): Whealy JA, Hislop J, Latham J

Background

The appellant was convicted by a jury of specially aggravated break, enter and steal in company under s 112(3) of the Crimes Act 1900. The offence involved a violent home invasion at a Tempe apartment during which the victim was beaten unconscious and property was stolen. The maximum penalty for the offence is 25 years imprisonment.

The Crown's case rested principally on the evidence of a co-offender and the presence of the appellant's partial palm print and left index fingerprint on the interior surface of the apartment's front door. The appellant did not give or call evidence at trial. His trial counsel had opened to the jury on the basis that the prints may have been deposited on a prior innocent visit to the unit, but that anticipated factual foundation never materialised from the evidence.

The appellant appealed against conviction on two inter-related grounds concerning remarks made both by the Crown prosecutor in closing address and by the trial judge in summing up. There was no appeal against sentence.

  • Whether the Crown prosecutor's closing submission, that there was "no innocent explanation" for the presence of the fingerprints, contravened the prohibition in s 20 of the Evidence Act 1995 against comment on an accused's failure to give evidence.
  • Whether the trial judge erred by repeating or endorsing that submission to the jury, to the effect that the jury might more readily accept the prosecution case in the absence of an explanation for the prints.

Decision

On the Crown address ground, the Court considered the distinction between commenting on a failure to give evidence (prohibited by s 20) and commenting on the absence of an explanation for a fact peculiarly within the accused's own knowledge. Relying on the High Court authorities in RPS v R, Azzopardi v The Queen, and Dyers v R, the Court confirmed that a comment directed to the latter is permissible, provided it does not slide into an invitation to use the accused's silence as a make-weight against them.

The Court found that the Crown's closing remarks fell within permissible bounds. The explanation for when and why the appellant's prints came to be inside the apartment was a matter peculiarly within his own knowledge. The Crown's comment was framed around that factual gap rather than around the appellant's exercise of his right to silence.

On the trial judge's summing-up, the Court was similarly unpersuaded that any misdirection occurred. The trial judge framed the comment in terms of a failure to offer an explanation rather than a failure to give evidence, left the weight of the matter to the jury, and gave adequate directions on the onus of proof. The jury was also directed that the appellant's failure to give evidence was not an admission and did not fill gaps in the prosecution case, and that there may be reasons unknown to the jury why the appellant chose not to give evidence.

Both grounds of appeal were rejected and the conviction was upheld.

Orders Made

  • Appeal against conviction dismissed.

Key Takeaways

  • A Crown comment that there is "no innocent explanation" for incriminating physical evidence does not automatically contravene s 20 of the Evidence Act 1995, provided it is directed at a factual gap peculiarly within the accused's knowledge rather than at the accused's decision not to testify.
  • The Court of Criminal Appeal confirmed the distinction, drawn from RPS v R, Azzopardi, and Dyers v R, between impermissible comment on an accused's silence and permissible comment on an unexplained fact that only the accused could explain.
  • Where such a comment is made, the trial judge must direct the jury adequately on the onus of proof, the absence of any obligation to give evidence, and the fact that silence is not an admission and does not fill gaps in the Crown's case.
  • In dismissing the appeal, the Court also confirmed that prescriptive formulaic words are not required in the relevant directions; sufficiency is assessed in the circumstances of each case, following R v Wilson [2005] NSWCCA 20.
  • No error was established where the trial judge also directed the jury, consistently with R v OGD (1997) 45 NSWLR 744, that there may be reasons unknown to them why an accused refrained from giving evidence, as this direction reinforced the Azzopardi direction.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112(3)
- Evidence Act 1995 (NSW), s 20

Cases:
- RPS v R [2000] HCA 3; 199 CLR 620
- Azzopardi v The Queen [2001] HCA 25; 205 CLR 50
- Dyers v R [2002] HCA 45
- R v Wilson [2005] NSWCCA 20
- R v OGD (1997) 45 NSWLR 744