AF v R

HOEBEN CJ AT CL: I agree with RS Hulme AJ.

FULLERTON J: I agree with RS Hulme AJ.

RS HULME AJ: After some earlier proceedings which it is unnecessary to recount, the above named Applicant was, on 31 May 2013 arraigned on 4 charges which, summarised, were:

At the times alleged the complainant was a female and aged 6 or 7 years.

The gravamen of the complaints was that on the first two occasions the Applicant had touched the complainant’s genitalia with his hand and on the third had done so with his exposed penis. The fourth suggested offence was that he had ejaculated.

On 14 June 2013, a jury convicted the Applicant on all counts. On 9 May 2014 McClintock SC DCJ sentenced the Applicant to an aggregate non-parole period of 15 months commencing on 9 May 2014 with an aggregate additional term of 1 year 9 months. In arriving at that sentence, his Honour indicated that the sentence appropriate for each of the first three charges was of imprisonment for 27 months including a non-parole period of 12 months and the sentence appropriate for fourth charge was imprisonment for 18 months.

The primary evidence of the commission of the offences was constituted by:-

There was in addition some supporting evidence principally from the complainant’s mother, father, the father’s cousin, and Detective Senior Constable Pollard but, absent acceptance of the substance of the complainant’s account, this further evidence was not sufficient to support any of the convictions.

Also tendered by the Crown Prosecutor, was the record of an ERISP in which the Applicant had participated on 27 October 2011. In this ERISP the Applicant had firmly denied the offences and suggested a reason why the complainant’s mother may have induced the complainant to make up allegations against him.

The grounds of appeal are:-

As the first ground suggests, the Applicant did not give evidence and the trial judge did not give to the jury the customary direction to the effect that there was no obligation on the Applicant to do so and his failure in this regard could not be used against him. No application was made that such a direction be given.

It should be noted that when towards the end of the trial, his Honour raised the question of what directions should be given to the jury, Mr Glennon, then counsel for the Applicant, indicated that he would be seeking a Jones v Dunkel direction in respect of two persons not called and who, according to some of the evidence, may have been able to give evidence concerning some of the events. The topic was canvassed and then during one of the luncheon adjournments in the absence of the jury, his Honour returned to the topic observing to Mr Glennon that if the request was pursued, he would give the direction but that it had occurred to him that “if you say a person didn’t give evidence and wouldn’t have assisted the Crown case, I am just concerned that with your client not giving evidence that might rebound on you.”

Mr Glennon then withdrew the request for a Jones v Dunkel direction and none was given.

Earlier, prior to the ERISP being tendered, Constable Pollard gave evidence of the arrest of the Applicant and of telling him that he did not have to say or do anything if he did not wish to. The transcript of the ERISP contains a similar statement. When the ERISP was tendered, nothing was said concerning the weight that might be given to it and when the Crown referred to it in his address again nothing was said concerning its weight or the fact that the Applicant’s answers were not on oath.

In his address, the Crown referred to what the Applicant had said in the ERISP but it is important to note that the Crown’s remarks dealt solely with the content.

In his summing-up, his Honour emphasised on numerous occasions that the Crown bore the onus of proving the case brought and that there was no onus on the accused to prove anything or to prove his innocence. Inter alia, he remarked:-

In addressing the topic of the ERISP his Honour said:-

Later, his Honour remarked:-

The latter remarks echo part of Mr Glennon’s address.

In Azzopardi v The Queen [2001] HCA 25, 205 CLR 50 at [51] the majority of the High Court observed:-

Later, authorities make it clear that the significance of the omission of an Azzopardi direction must be assessed in light of the circumstances of, and the directions given, in the particular case. Furthermore, in light of rule 4 of the Criminal Appeal Rules 1996, the failure of counsel to ask for the direction means that leave to rely on the omission will only be given when the Applicant can demonstrate that the omission of the direction led to a miscarriage of justice in the sense that the Applicant may have lost a chance fairly open to him of being acquitted – R v Wilson [2005] NSWCCA 20 at [20] et seq. and cases cited. See also Papakosmas v R [1999] HCA 37; 196 CLR 297 at [27]. Given what the jury were told, is the test set out in R v Wilson met?

Many if not most of the cases in this area are ones where some but not all of the four aspects of the suggested direction in Azzopardi were given and I find the decisions in most of those cases of no significant benefit here where the summing-up directed no attention to any of the aspects.

The Court was referred to a number of authorities. In R v Richards [2002] NSWCCA 38; 128 A Crim R 204 the Court was concerned with the complete absence of directions on the topic. Levine J accepted that the right of silence was fundamental but did not accept that an absence of a direction necessarily or in that case amounted to a fundamental irregularity so as to justify the grant of leave under Rule 4. His Honour observed, at [29], that:-

His Honour also pointed out, at [30], that mis-directions on matters said to be “fundamental” neither necessarily or as a matter of course can be characterised as a fundamental defects. See also Glennon v The Queen (1993) 179 CLR 1 at p8. His Honour concluded that:

His Honour’s remarks were concurred in by Hodgson JA and Howie J and the appeal was dismissed.

In R v SMR [2002] NSWCCA 258 it was submitted that the jury might have engaged in impermissible reasoning relating to the failure of an accused to give evidence and in particular provide an explanation for his fingerprints in a book. The Court again took the view that in Azzopardi the High Court had not said that such a direction was mandatory in every case and some element of discretion was left to the trial judge. It was pointed out that in not every case counsel would consider his client well served by such a direction, particularly as in the instant case where effectively the record of interview was constituted by denials. The Court took the view that the absence of a direction along the Azzopardi lines did not constitute a possible miscarriage of justice and leave under rule 4 to rely on the ground was refused.

In R v Colville [2003] NSWCCA 23; 137 A Crim R 543 the judge had pointed out to the jury that the accused had the opportunity of giving evidence but, as occurred, he was perfectly entitled not to do so and that what he had said in his interview with police was in effect what he said to the jury in trial. His Honour went on to emphasise that it was for the Crown to prove the accused’s guilt. The relevant ground of appeal was that these directions were not adequate.

Sully J, with the concurrence of Handley JA and Buddin J referred to the remarks in Azzopardi at [51] and [52] and shortly afterwards remarked:-

The decision was that the directions that were given were adequate. Neither R v Richards nor R v SMR was referred to.

In R v Burns [2003] NSWCCA 30; 137 A Crim R 557 at [50] Sully J, this time with the concurrence of Hodgson JA and Buddin J, echoed what he had said four days earlier in R v Colville. In this case the Court held that the directions the trial judge had given concerning the accused’s right to remain silent were sufficient.

In R v Graham [2005] NSWCCA 127 the trial judge is recorded as having given “firm and impeccable directions concerning the necessity for the Crown to discharge its onus of proof”. However no Azzopardi direction had been sought or given and the trial judge did not refer to the absence of evidence from the Applicant. The Accused had participated in a lengthy recorded interview denying knowledge that a parcel with which she had been involved contained drugs and her counsel had announced at the end of the Crown case that “The accused will be relying on her record of interview and other evidence in the case so far as her case is concerned”. The trial judge had also remarked:-

In refusing leave to rely on the ground of an absence of an Azzopardi warning, Grove J, with the concurrence of the other members of the Court, referred to a number of prior cases where the point had been made that in Azzopardi the High Court had clearly indicated that the direction suggested as desirable was not mandatory.

His Honour also observed, at [25]:-

The trial judge from whom an appeal was brought in R v Wilson [2005] NSWCCA 20 pointed out to the jury that the accused had a right not to give evidence and no inference could be drawn from that fact. In this Court counsel sought to complain that the other ingredients referred to in Azzopardi, viz. that the accused’s silence could not be used to fill gaps in the evidence tendered by the Crown and could not be used as a make-weight in assessing whether the Crown had proved its case beyond reasonable doubt had not been drawn to the jury’s attention. Hunt AJA with whom Grove and James JJ agreed, pointed out that in Azzopardi, the High Court had not made it compulsory in every case, or even in almost every case for the direction it had suggested to be given. His Honour also said that desirability was not established by demonstrating merely that there was nothing in the facts that made such a direction inappropriate. His Honour took the view that the absence of those ingredients would not have led to the loss of any chance fairly open to the Applicant of acquittal and that leave to rely on the ground should be refused:-

In R v Wilson an earlier case in this Court, R v Macris [2004] NSWCCA 261 was overruled. In R v Macris it had been held that where a direction concerning an accused’s failure to give evidence was required, the omission of two of the four ingredients of the direction referred to in Azzopardi constituted error.

In Johnston v R [2007] NSWCA 133 at [13] in an ex tempore judgment McClellan CJ at CL, with whom Hislop J and I agreed, remarked:-

In his remarks in that case the trial judge did not address at all the issue of the Accused’s failure to give evidence but reminded the jury of a Crown submission that the accused had lied in his ERISP and of the submission that he had done so “because Mr Johnson knew the truth of the matter about which he lied would implicate him in the offence …”. McClellan CJ at CL observed that, “Given this, although I would otherwise be of the view that an Azzopardi direction should have been given, the need for it became undoubted.”

Again, neither R v Richards nor R v SMR was referred to although R v Burns, R v Wilson and two other cases, R v Dodd [2002] NSWCA 418 and R v Sabbah [2004] NSWCCA 28 were. Having regard to the not insubstantial directions that the trial judges in those cases in fact gave to the juries, those last two cases are of no present significance.

In Giotas v R [2006] NSWCCA 358 there was an issue whether sexual intercourse was consensual and whether it has occurred on two occasions or one. Hall J with the concurrence of McClellan CJ at CL and Hidden J, remarked, at [50], and [52]:

His Honour’s conclusion was reinforced by, but as I read his remarks not dependant on, the fact that in the course of his summing up, the trial judge had commented:-

In Sever v R [2007] NSWCCA 339 this Court set aside a conviction where the trial judge had given the jury no direction on the topic of the Accused’s failure to give evidence and counsel had said that his client was content to rely upon what he had said in a video-taped interview by police which was before the jury. The Court took the view that by the omission the accused had lost a fair chance of acquittal.

In an ex tempore judgment Grove J, with whom Simpson J and I concurred, concluded that the failure of the trial judge to give an Azzopardi or like direction led to the conclusion that the Applicant had lost a fair chance of acquittal. His Honour adverted to the fact that Azzopardi did not mean that the giving of such a direction was in all cases obligatory but said that given the calling of a number of witnesses in the defence case “the absence of the Applicant must have been glaringly obvious to the jury”. On the topic his Honour referred to the decision in R v Johnston but to no other authority.

This Court was referred to some interstate authorities. In Burke v The Queen [2013] VSCA 351 the Victorian Court of Appeal observed at [69]:-

In R v Bevin [2008] QCA 310 Cullinane J, with the concurrence of the other members of the Court repeated remarks in an earlier case of R v DAH [2004] QCA 419 at [83] that “… if a judge makes no comment on the failure of the defendant to give evidence, the jury may well use that silence to the defendant’s detriment” and described a failure to given any direction on the topic as “a serious defect”. His Honour then, obviously relying heavily on R v Macris, held at [52] that the failure to give such a direction must be taken to have resulted in a miscarriage of justice.

In R v GAJ [2011] QCA 141 the Queensland Court of Appeal referred to R v DAH and R v Bevin and took the view, at [42] that “whilst no precise form of words is necessary, the failure to give directions covering these matters” (i.e. the failure of an accused to give evidence) ordinarily constitutes a fundamental irregularity in a trial requiring appellate courts to set aside resulting convictions and order a retrial”. Their Honours considered and rejected the conclusion in R v Richard and R v Graham that the absence of a direction was not a fundamental irregularity.

It may be accepted that the trial judge emphasised to the jury that the burden on proof lay on the Crown and would only be satisfied by proof beyond reasonable doubt. However, as Hayne and Bell JJ in X7 v Australian Crime Commission at [2013] HCA 29; 248 CLR 92 at [102] make clear, that principle is not the same as the entitlement of an accused to remain silent.

The differing results in the authorities to which I have referred do not make easy the decision as to what should occur in the instant case. However it is important to distinguish those which turned on rule 4 of the Criminal Appeal Rules and the need for leave to rely on a point not taken below and those which turned on the absence or inadequacy of a direction on the topic of an accused not given evidence.

I do not accept the remarks of Sully J in R v Colville concerning “… the natural temptation for the lay-mind to reason that an accused person who gives no evidence at his trial is conveying by that election that he is in truth guilty as charged.” I do not see how in the face of a plea of not guilty a failure to give evidence could reasonably be so construed and in many cases there will often be denials in recorded interviews and the like which would also have to be taken into account.

However the embracement in Azzopardi of the proposition that a jury might use an accused’s silence in court to his or her detriment, the views expressed in R v Johnston to the effect that “that most people would assume that if a person who has been accused of a crime remains silent it is because they cannot adequately explain the situation” leads to the conclusion that, absent something to rebut the assumption or significantly reduce the possibility adverted to the Azzopardi, a direction concerning an accused’s silence should be given. Such a conclusion, recognising the possibility of additional material, is not inconsistent with the reference in Azzopardi to “almost always … desirable”.

The additional material might be, as in R v Graham, an accused’s answers in a recorded interview which the jury were instructed was evidence to be evaluated as any other evidence although R v Sever suggests that absent such an instruction a recorded interview would be insufficient. Some factors. e.g. the trial judge’s repetition of a Crown submission as to the accused lying as in Johnston v R, remarks in Giotas v R concerning the “only” and “actual” evidence or a direction or the calling of other defence witnesses in Sever v R may strengthen the need for a direction.

Furthermore the requirement in rule 4 of the Court of Criminal Appeal rules for leave to rely on a point not taken below does not mean that the absence of a direction where one should have been given means that at appeal will succeed. The Applicants in R v Richards, R v SMR and R v Wilson failed on that ground.

Returning to the circumstances of the trial under consideration here, there was in evidence the Accused’s ERISP in which he denied the allegations against him. That document was also referred to in his Honour’s summing up. However, the reference was to it being a “version of events”. It was not equated to the evidence of the complainant. There was nothing else that impinged on the desirability of a direction concerning the failure of the Applicant to enter the witness box and accordingly a direction concerning that and the absence of any inference arising should have been given.

But did the absence of any such direction amount to a miscarriage of justice in the sense that the Applicant may have lost a chance fairly open to him of being acquitted? Here the evidence for the Crown was not overwhelming and, as is made clear when I deal with Ground 2, there were a number of unsatisfactory features of the complainant’s evidence. An inference drawn from the failure of the Applicant to give evidence might reasonably have made the difference between conviction and acquittal. In these circumstances the failure of the judge to give an appropriate warning on the topic did constitute a miscarriage of justice and this ground of appeal must be upheld.

Ground 2

The conclusion at which I have arrived in respect of Ground 1 makes it strictly unnecessary for me to pursue this ground. However, particularly as in considering that ground I have relied on the nature of the evidence of the complainant it is appropriate that I refer to a deal of it.

Most of the difficulties relied on under this ground are fairly summarised in the course of McClintock DCJ’s summing up. His Honour said:-

At one stage in the absence of the jury, his Honour remarked:-

It is unnecessary to detail all of the examples relied on by counsel for the Applicant but some may be mentioned. The first interview between the police and the complainant extended for some 440 odd questions and answers, the second to almost 300. There can be no doubt that both contained a number of answers that were not helpful to the Crown case. For example in the first interview that complainant said that she did not know why she was at the police station, nobody had touched her on that part of her body that corresponded with circled genitalia on a drawing of a girl, that, after saying that the Applicant had touched her, she did not know what part of his body was used to do so, and that he had not touched her on any other time. Later, having said that the part of the Applicant’s body that pees touched her she said she didn’t know what that part looked like.

On the other hand in the first interview there were the following questions and answers:-

(Between answer 303 and question 367 some 4 pages of the transcript of the interview are missing, presumably in consequence of editing although the full record of proceedings was not before this Court. One may infer that in those missing parts the complainant had made some reference to the part of the Applicant’s body that pees.)

In her second interview when taken to this topic she said she had seen nothing.

That part of the transcript of the second interview as dealt with the topic of ejaculation included the following:-

Examples from the transcript of the complainant’s evidence at the trial include:

Despite these sorts of problems there were answers by the complainant which were firm and implicated the Applicant in the offending charged and while at one level the complainant’s evidence on the topic of ejaculation seems bizarre it may be that a deal of what has been quoted above on the topic represents an attempt by her to explain what she meant by “everywhere”. Her description of the “white things” and definiteness about them falling on the carpet provides grounds for not rejecting all of what she had to say on the topic.

It is also virtually impossible to avoid the conclusion that the “white things” she referred to were ejaculate and hard to accept that if she had not seen such material emanating from the Applicant she would have known about it.

On the other hand, after the complaint came to the attention of the police a forensic examination of the room in which the assaults were alleged to have occurred was conducted. This examination included study of the carpet, the removal of a section of it that appeared to be stained and its transmission to the Department of Analytical Laboratories. No semen was detected.

Clearly this evidence created difficulty in accepting some of what the complainant had said. However, this and the other problems with the complainant’s evidence must have been apparent to the jury. The passages quoted from the summing up cannot but have drawn the issue of her credibility and reliability and any difficulties for the Applicant to their attention. An obvious explanation for at least some of the complainant’s answers was a reluctance to speak and for others, her age. Be that as it may, I am not persuaded that the jury’s decision to convict the Applicant was unsafe or that the Applicant’s conviction was unreasonable or cannot be supported.

I would dismiss this ground of appeal.

However, as I have indicated, the Applicant is entitled to succeed on Ground 1. In the ordinary course the nature of his success would lead to a retrial. However he has served the non-parole portion of his sentence and been released from custody. His total sentence expires on 8 May 2017 and given the delays in the Court System any retrial may well not occur much if anything before then. He is 81 years of age has no significant record. It is inconceivable that a sentence including any further custody would be imposed.

By reason of s 306C et seq. of the Criminal Procedure Act 1986 there would be no need for the complainant to give further evidence unless she wished and that seems unlikely. Accordingly any retrial would occur on the fairly unsatisfactory basis of a transcript of her evidence.

Section 6(2) of the Criminal Appeal Act 1912 provides that in the event an appeal against conviction is allowed a verdict of acquittal shall be entered although s 8 provides that the Court may order a new trial if it considers that a miscarriage of justice can be more adequately remedied by such an order than by any other order. Given the evidence against the Applicant and notwithstanding the matters to which I have referred it does not seem to me that the Court should direct an acquittal but should order a new trial leaving it to the Director of Public Prosecutions to decide whether to pursue that avenue.

Accordingly I propose the following orders:-