Resolution of the appeal
11 In the course of her address counsel for the appellant reminded the jury that the appellant had not given evidence. She said:
"Mr Johnston has come before you and has told you that he is not guilty of this charge. You have seen his evidence in the form of the ERISP and his Honour will give you directions about the right to silence and the right that we all share of being under questioning by police officers (sic) none of us have to say anything. But Mr Johnston, having been properly cautioned, chose to give the police his version of events and you are to assess what he told the police officers as you do any other witness. Although he has that right, once he gave that right up he is to be assessed like anyone else and I would suggest to you that his demeanour on that tape was of a calm, sensible, hard working young man who was telling the truth."
12 Although counsel indicated that she anticipated that the trial judge would give directions in relation to an accused person's right to remain silent this did not happen. The matter was not adverted to by the trial judge and the omission was not identified by either the prosecutor or defence counsel. Although the Crown argued on this appeal that there may have been tactical reason why counsel for the appellant did not raise the matter, I cannot identify why this should be. I am satisfied that the failure to raise the matter was an oversight. It should have been raised by counsel for the appellant. The Crown Prosecutor should also have been alive to the issue. I would grant leave to the appellant to raise the issue.
13 This Court has on many occasions considered the directions which a trial judge should give when an accused person does not give evidence at his or her trial. It has been recognised, as in my opinion, must be plain, 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. Although the ordinary person may not conclude from the mere fact of an accused's person's silence that he or she is guilty, if there is evidence indicating that an accused may have committed the crime a failure to respond would make it, at least, more likely that a person would conclude that the accused committed the crime.
14 In Azzopardi v The Queen (2001) 205 CLR 50 at 70 the majority said:
"In the course of argument of the present matters it was suggested that if a judge said nothing to the jury about the fact that an accused had not given evidence, the jury may use the accused's silence in court to his/her detriment. Plainly that is so. It follows that if an accused does not give evidence at trial it will almost always be desirable to warn the jury that the accused's silence in court is not evidence against the accused, does not constitute an admission by the accused, may not be used to fill gaps in the evidence tendered by the prosecution, and may not be used as make-weight in assessing whether the prosecution has proved its case beyond reasonable doubt."
15 There have been cases where although the trial judge has addressed the fact that the accused did not give evidence the directions have been found to be incomplete and accordingly inadequate (see R v Bradley Scott Burns (2003) 137 A Crim R 557; R v Wilson [2005] NSWCCA 20; 62 NSWLR 346; R v Dodd (2002) NSWCCA 418; 135 A Crim R 32; R v Sabbah (2004) NSWCCA 28). This was not such a case. In this case the trial judge did not address the issue at all.
16 The appellant submitted that the need for a direction in the present case was heightened by the fact that the prosecution asserted that the appellant had lied in his ERISP. The trial judge addressed this matter in his directions and reminded the jury that the Crown asserted that the alleged lie "was told because Mr Johnston knew the truth of the matter about which he lied would implicate him in the offence, or to put in another way, because he was afraid of the truth."
17 By putting the matter in this way his Honour raised for the jury's consideration whether the appellant's failure to give evidence meant that he was not able to rebut the Crown's submission. Given this, although I would otherwise be of the view that an Azzopardi direction should have been given the need for it became undoubted. The failure to give the direction had the consequence that the appellant lost the chance of an acquittal.
18 In my opinion leave to raise the issue should be granted, the appeal upheld, the conviction quashed and a new trial ordered.
19 HULME J: I agree.
20 HISLOP J: I agree.
21 McCLELLAN CJ at CL: Accordingly, the orders of the court are as I have indicated.
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