Citation: R v BOZKUS [2001] NSWCCA 68
Court: New South Wales Court of Criminal Appeal
Date: 5 March 2001
Judge(s): Spigelman CJ, Sperling J, Carruthers AJ
Background
The appellant was convicted in the District Court at Parramatta on four counts of sexual assault. The Crown case was that the complainant, a sex worker, had initially agreed to sexual intercourse with the appellant for reward, but that he then used force to engage in further acts without her consent. The appellant admitted sexual intercourse occurred but maintained throughout that all acts were consensual.
The appellant did not give evidence at trial. The sole ground of appeal concerned the trial judge's directions to the jury about the appellant's decision not to testify.
Legal Issues
- Whether the trial judge's directions to the jury on the appellant's failure to give evidence were correct in light of the High Court's decision in RPS v The Queen (2000) 199 CLR 620
- Whether, if the directions were in error, the proviso (which allows a conviction to stand despite a trial irregularity where no substantial miscarriage of justice occurred) should nonetheless be applied
Decision
The trial judge's directions followed the form that had been standard in New South Wales under the authority of Weissensteiner v The Queen (1993) 178 CLR 217 and R v OGD (1997) 45 NSWLR 744. Those directions invited the jury to reason that, because the appellant had not denied or contradicted the complainant's evidence, any doubts about her evidence could be more readily discounted and her account more readily accepted as truthful. The directions were unimpeachable on the state of the law at the time of trial.
However, the High Court's subsequent decision in RPS v The Queen significantly narrowed the circumstances in which such a direction is appropriate. The majority in RPS held that it will seldom, if ever, be reasonable to expect an accused to give evidence, and that a Weissensteiner-style direction is only appropriate in cases where evidence or an explanation contradicting an apparently damning inference from proven facts could come only from the accused. The High Court in RPS also expressly doubted that OGD stood for any general proposition that such directions should be given in sexual assault cases where the accused declines to respond to the complainant's evidence.
The Court of Criminal Appeal found that the present case did not fall within that narrow category. The central issue was consent, and the complainant gave direct evidence on that issue. Had the appellant testified, he would have offered positive evidence of consent, contradicting the complainant. That is a conventional adversarial dynamic, not the kind of exceptional situation where relevant evidence could come only from the accused. There was therefore no sufficient basis for directing the jury that the appellant's silence could be used to reinforce the complainant's account.
The proviso was not applied. Although there was some corroborating physical evidence from medical examination, the court concluded that the manner in which the jury could treat the complainant's evidence went to the heart of the critical issue in the trial. Applying the proviso in those circumstances would have been inappropriate.
Orders Made
- Appeal allowed
- New trial ordered
Key Takeaways
- A Weissensteiner direction (permitting the jury to use an accused's silence to reinforce Crown evidence) is only available in a narrow category of cases: those where evidence or an explanation contradicting an apparently damning inference from proven facts could come only from the accused.
- The Court of Criminal Appeal confirmed that a sexual assault trial in which the sole issue is consent does not, without more, fall within that narrow category. A standard case of contested consent does not meet the RPS threshold.
- Directions that were entirely correct under pre-RPS authority could still constitute reversible error once RPS was decided, even where the trial itself pre-dated that High Court judgment.
- RPS v The Queen did not overrule Weissensteiner, but significantly confined its application. The Court acknowledged ongoing difficulty in reconciling the two decisions, noting the High Court had heard argument in further cases on that tension at the time of this appeal.
- Where an erroneous jury direction goes to the heart of the central issue in the trial, the proviso will not save the conviction, even where some corroborating evidence existed.
Legislation and Cases Referenced
Cases:
- Weissensteiner v The Queen (1993) 178 CLR 217
- RPS v The Queen (2000) 199 CLR 620
- R v OGD (1997) 45 NSWLR 744
- R v Fowler [2000] NSWCCA 142
- R v Hannes [2000] NSWCCA 503
Legislation: No specific legislative provisions were identified in the judgment text.