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Court of Criminal Appeal 8 May 2001

R v Arbolino [2001] NSWCCA 207 revised - 13

[2001] NSWCCA 207

Sexual offences
CRIMINAL LAW SEXUAL ASSAULT ONUS OF PROOF ACCUSED NOT TESTIFYING DIRECTION

Citation: R v Arbolino [2001] NSWCCA 207
Court: New South Wales Court of Criminal Appeal
Date: 8 May 2001
Judge(s): Wood CJ at CL, Newman AJ, Mathews AJ

Background

The appellant was charged in the District Court with seven counts relating to acts of indecency and assault involving a fourteen-year-old boy. The charges arose from a series of incidents alleged to have occurred over a one-month period in early 1995, during which the appellant had befriended the complainant and the two travelled together on the railway network.

The first count alleged that on a train journey, the appellant sat near the complainant and touched the boy's penis. A female companion of the complainant was also present on that journey. The jury convicted the appellant on the first count, acquitted him on four others, was directed to acquit on one, and could not reach a verdict on the seventh.

The appellant did not testify at trial. He appealed his conviction on two grounds: that the trial judge gave flawed directions on the danger of convicting on the complainant's evidence alone, and that the judge gave a legally incorrect direction about the appellant's decision not to give evidence.

  • Whether the trial judge's direction on the appellant's failure to testify was contrary to High Court authority, specifically RPS v The Queen and The Queen v Azzopardi
  • Whether any error in that direction was rendered harmless by the jury's pattern of verdicts across the counts
  • Whether it was necessary to consider the first ground of appeal once the second ground succeeded

Decision

The Court of Criminal Appeal found the trial judge's direction on the accused's silence to be plainly wrong. The direction told the jury that it could use the appellant's failure to deny or contradict the Crown's evidence as a basis for more readily accepting that evidence as true. Both the Crown and the Court agreed this was inconsistent with the High Court's decision in RPS v The Queen and the then-recent decision in Azzopardi.

Azzopardi clarified the scope of the earlier Weissensteiner decision, confirming that a judge may comment on an accused's failure to explain facts peculiarly within that person's knowledge, but cannot direct the jury to draw adverse inferences from the accused's election not to give evidence. The direction given at trial crossed that line.

The Crown argued the jury could not have been misled because the verdicts of acquittal on other counts showed the jury applied proper reasoning. The Court rejected this argument. Newman AJ observed that the impugned direction referred to "a Crown witness" in general terms, meaning the jury may reasonably have applied it to the corroborating witness DG and not only to the complainant. That possibility meant the error could not be treated as harmless.

Having found the second ground of appeal made out, the Court considered it unnecessary to address the first ground concerning the adequacy of the warning about acting on the complainant's uncorroborated evidence.

Orders Made

  • Appeal upheld
  • Conviction quashed
  • New trial ordered

Key Takeaways

  • A trial judge cannot direct the jury that the accused's failure to testify may be used as a basis for more readily accepting the Crown's evidence as true; such a step goes beyond permissible comment and constitutes a misdirection.
  • Azzopardi confirmed that Weissensteiner permits judicial comment on an accused's failure to offer an explanation where relevant facts are peculiarly within that person's knowledge, but this is a matter of comment only, not direction.
  • Where a misdirection may have applied to more than one Crown witness, the Court of Criminal Appeal will not assume the jury confined the erroneous direction to only one of them.
  • The Crown's concession that a direction was legally wrong did not save the conviction; the Court independently assessed whether the error was harmless and found it was not.
  • Inconsistent jury verdicts across multiple counts do not necessarily demonstrate that an erroneous direction had no effect on the count on which conviction was returned.

Legislation and Cases Referenced

Cases:
- RPS v The Queen (2000) 168 ALR 729
- The Queen v Azzopardi [2001] HCA 25
- Weissensteiner v The Queen (1993) 178 CLR 217

Legislation: No specific legislation was cited in the judgment.