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Court of Criminal Appeal 19 August 2016

AF v R

[2016] NSWCCA 180

Sexual offences
CRIMINAL LAW NO EVIDENCE FROM ACCUSED FAILURE TO GIVE AZZOPARDI DIRECTION ACCUSED OLD AND NON

Citation: AF v R [2016] NSWCCA 180
Court: NSW Court of Criminal Appeal
Date: 19 August 2016
Judge(s): Hoeben CJ at CL, Fullerton J, RS Hulme AJ

Background

The appellant was convicted by jury in June 2013 on four counts involving indecent assault of a child complainant, who was aged six or seven at the time of the alleged offences. The primary evidence came from two recorded police interviews with the complainant and some oral evidence she gave at trial. Supporting evidence from family members and police was insufficient to sustain the convictions absent acceptance of the complainant's account.

The appellant did not give evidence at trial. He had, however, participated in a recorded police interview (an ERISP) before trial, in which he firmly denied the offences and offered a possible reason why the complainant's mother may have prompted the allegations. The trial judge addressed that ERISP in the summing-up but did not direct the jury that the appellant's silence at trial could not be used against him. No request for such a direction was made by defence counsel.

The appellant was sentenced to an aggregate non-parole period of 15 months and an additional term of one year and nine months. He appealed against conviction on two grounds: that the omission of an Azzopardi direction constituted a miscarriage of justice, and that the convictions were unreasonable and unsupported by the evidence.

  • Whether the trial judge's failure to give an Azzopardi direction (warning the jury that an accused's silence at trial cannot be used against them) amounted to a miscarriage of justice, given that no such direction was requested by defence counsel
  • Whether the convictions were unreasonable or could not be supported having regard to the evidence

Decision

On the first ground, the Court confirmed that an Azzopardi direction should almost always be given where an accused does not give evidence, so that the jury understands the silence cannot be used to fill gaps in the prosecution's case or as a make-weight in assessing proof beyond reasonable doubt. Because counsel had not asked for the direction, leave to rely on the omission required the appellant to show a miscarriage of justice in the sense that he may have lost a real chance of acquittal.

The Court found that the omission did produce a miscarriage of justice in the circumstances of this case. The ERISP was in evidence and had been addressed in the summing-up, but the jury received no direction that the appellant's courtroom silence was not evidence against him and could not be used to supplement or bolster the prosecution's case. Given that the Crown case rested almost entirely on the complainant's credibility, the absence of the direction meant the jury may have used the appellant's failure to testify as a make-weight when assessing whether the prosecution had proved its case beyond reasonable doubt.

On the second ground, the Court was not persuaded that the convictions were unreasonable or unsupported. It acknowledged difficulties with aspects of the complainant's evidence, but noted these would have been apparent to the jury and that the summing-up had drawn the credibility issues to their attention. The Court declined to disturb the convictions on this basis.

Turning to remedy, the Court declined to enter a verdict of acquittal. Despite the appellant being 81 years old, having served his non-parole period and being released from custody, and despite the practical obstacles to a retrial, the Court considered that the strength of the evidence against the appellant made acquittal inappropriate. It ordered a new trial, leaving the decision whether to proceed to the Director of Public Prosecutions.

Orders Made

  • Appeal allowed
  • Conviction of 14 June 2013 and sentence imposed on 9 May 2014 quashed
  • New trial ordered

Key Takeaways

  • Where an accused does not give evidence, a direction to the jury that the silence cannot be used against them (an Azzopardi direction) should almost always be given, even in the absence of a request from defence counsel.
  • A failure to give an Azzopardi direction will not automatically produce a miscarriage of justice; the significance of the omission must be assessed against the totality of the directions given and the circumstances of the particular trial.
  • Where the prosecution case rests almost entirely on a single witness's credibility, the risk that a jury may use an accused's courtroom silence as a make-weight is heightened, and the absence of an Azzopardi direction is more likely to constitute a miscarriage of justice.
  • Under s 8 of the Criminal Appeal Act 1912, the Court of Criminal Appeal retains a discretion to order a new trial rather than enter an acquittal, even where practical difficulties with a retrial exist, provided the strength of the evidence against the accused makes acquittal inappropriate.
  • Counsel's failure to request a direction does not prevent a court from finding that its omission caused a miscarriage of justice, but it does raise the threshold the appellant must meet to obtain leave to rely on that omission.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), ss 6(2), 8
- Criminal Appeal Rules 1996 (NSW), r 4
- Criminal Procedure Act 1986 (NSW), s 306C

Cases
- Azzopardi v The Queen [2001] HCA 25; 205 CLR 50
- Burke v The Queen [2013] VSCA 351
- Giotas v R [2006] NSWCCA 358
- Glennon v The Queen (1993) 179 CLR 1
- Johnston v R [2007] NSWCA 133
- Papakosmas v R [1999] HCA 37; 196 CLR 297
- R v Bevin [2008] QCA 310
- R v Burns [2003] NSWCCA 30; 137 A Crim R 557
- R v Colville [2003] NSWCCA 23; 137 A Crim R 543
- R v GAJ [2011] QCA 141
- R v Graham [2005] NSWCCA 127
- R v Macris [2004] NSWCCA 261
- R v Richards [2002] NSWCCA 38; 128 A Crim R 204
- R v SMR [2002] NSWCCA 258
- R v Wilson [2005] NSWCCA 20
- Sever v R [2007] NSWCCA 339
- X7 v Australian Crime Commission [2013] HCA 29; 248 CLR 92