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District Court 21 June 2019

R v Peters; R v Oberg

[2019] NSWDC 319

Fraud & dishonesty
CRIMINAL PROCEDURE JURY TRIAL TRIAL DIRECTIONS TO JURY EVIDENCE WITNESS EVIDENCE

Citation: R v Peters; R v Oberg [2019] NSWDC 319
Court: District Court of New South Wales
Date: 21 June 2019
Judge: Priestley SC DCJ

Background

Two accused, Mr Peters and Mr Oberg, were tried together on a joint indictment involving counts of forging cheques and depositing proceeds. Several counts were alleged against both men jointly, while four other counts were charged against Mr Peters alone. During the trial, Mr Peters gave evidence and Mr Oberg did not.

In closing address, counsel for Mr Peters submitted to the jury that Mr Oberg had not taken the witness stand, and that this silence indicated Mr Oberg was guilty of the conduct alleged against Mr Peters. Counsel for Mr Oberg immediately applied to discharge the jury on the basis that this submission was impermissible and had caused unfair prejudice to Mr Oberg.

The trial judge was required to rule on the discharge application and to consider what, if any, corrective directions to the jury would be appropriate.

  • Whether counsel for a co-accused may comment to the jury on a co-accused's failure to give evidence, including by suggesting that silence indicates guilt
  • Whether the comments made in closing address were permissible under s 20(2) of the Evidence Act 1995 (NSW)
  • Whether any resulting unfairness to Mr Oberg could be remedied by judicial direction, or whether discharging the jury was necessary

Decision

Section 20(2) of the Evidence Act 1995 (NSW) permits a judge or any party, other than the prosecutor, to comment on a co-accused's failure to give evidence. Crucially, the prohibition on suggesting guilt from silence applies to the judge but does not extend to another defendant in the same proceeding. The court found that both Azzopardi v The Queen (2001) 205 CLR 50 and Regina v Skaf [2004] NSWCCA 74 support the view that a co-accused's counsel may, in appropriate circumstances, submit that the other accused's silence points to guilt.

His Honour accepted that the submissions by counsel for Mr Peters were permissible in principle, given the express terms of s 20(2). However, the court noted that the submissions lacked any real connection to matters peculiarly within Mr Oberg's knowledge, which is the foundation that would ordinarily justify such a comment carrying significant weight. The manner in which the submissions were made therefore carried the potential to work an unfairness on Mr Oberg and to impermissibly encroach on his right to silence.

The court refused the application to discharge the jury. His Honour considered that any unfairness caused by the closing address could adequately be addressed through carefully crafted directions and judicial comment in the summing-up.

The proposed directions included the standard direction on an accused's right not to give evidence, supplemented by a judicial comment drawing the jury's attention to: the limited practical impact of Mr Oberg's silence on the factual issues in dispute; the differing purposes of the two separate trials proceeding together; and the need to assess the case against Mr Oberg on the evidence as presented by the Crown and Mr Oberg's own counsel, without adverse inference from silence.

Orders Made

No orders were made in this decision. The ruling addressed the discharge application and foreshadowed the directions to be given in the summing-up.

Key Takeaways

  • Under s 20(2) of the Evidence Act 1995 (NSW), a co-accused's counsel is expressly permitted to comment on the other accused's failure to give evidence, and may suggest that the silence indicates guilt. This is an explicit exception to the restriction that otherwise applies to judicial comment.
  • Azzopardi v The Queen (2001) 205 CLR 50 establishes that judicial comment on an accused's silence is only appropriate where there are facts that would be peculiarly within the knowledge of the accused. The District Court applied this reasoning to assess the weight and fairness of co-accused comment, even though that principle was developed in the context of judicial comment.
  • A closing address by co-accused counsel that lacks any real connection to matters peculiarly within the silent accused's knowledge may still be permissible under s 20(2), but risks causing unfairness to that accused.
  • Discharging the jury is not automatically required where counsel's closing address has the potential to prejudice a co-accused. Appropriately crafted judicial directions can, in some circumstances, remedy that unfairness.
  • In joint trials where one accused gives evidence and the other does not, a trial judge may use summing-up comment to distinguish the two separate trials' purposes and remind the jury to assess the silent accused's case on the evidence presented, without drawing an adverse inference from silence.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), s 20(2)

Cases
- Azzopardi v The Queen (2001) 205 CLR 50
- Regina v Skaf [2004] NSWCCA 74