The second ground of appeal: A miscarriage of justice was caused by the judge's failure to direct the jury that the accused's silence in Court was not evidence against him, could not be used to fill gaps in the prosecution case, or support the prosecution case.
- This ground of appeal concerns what is said to be trial judge's failure to direct the jury in accordance with Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25 to the effect that the accused's election not to give evidence is not evidence against him and does not constitute an admission by him of his guilt. The complaint is also made that there was no direction that the applicant's silence may not be used by the jury to fill any gaps in the evidence relied upon by the Crown to prove its case, or used by them as a "make weight" in assessing whether the Crown has proved its case beyond reasonable doubt.
- In Azzopardi, Gaudron, Gummow, Kirby and Hayne JJ said at [51]:
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 or her detriment. Plainly that is so. It follows that if an accused does not give evidence at trial it will almost always be desirable for the judge 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 a make-weight in assessing whether the prosecution has proved its case beyond reasonable doubt. It by no means follows, however, that the judge should go on to comment on the way in which the jury might use the fact that the accused did not give evidence.
- Ms Davenport, an experienced senior trial counsel, did not seek an Azzopardi direction. Accordingly, leave under Rule 4 of the Criminal Appeal Rules (NSW) is required to permit the applicant to raise the matter on appeal. The applicant's senior counsel on the appeal, Ms Bashir, submitted that because the Azzopardi direction relates to the onus and standard of proof, if there is merit in the applicant's argument that the direction should have been given, leave under Rule 4 should be granted.
- The Crown submitted that where the issue at trial was whether DE's account of the indecent "touching" was reliable - a matter about which the trial judge directed the jury they would need to be satisfied if they were to return a verdict of guilty - and where Ms Davenport's address focused on a wide range of features of DE's evidence which she submitted were eloquent of DE's unreliability, to seek an Azzopardi direction might well have been considered by trial counsel to be uncalled for or even unwise.
- The Crown further submitted that, having regard to the way in which the applicant's case was conducted at trial, it would be open to this Court to conclude that the decision that the applicant would not give evidence was made in circumstances where trial counsel considered that the trial judge's directions as to how the jury should approach their assessment of the applicant's ERISP were sufficient to emphasise that his denials of any indecent touching were part of the evidence available to the jury to consider on the question of whether the Crown had proved guilt beyond reasonable doubt, and that an Azzopardi direction would inevitably draw the jury's attention to the fact that the applicant could have given sworn evidence but chose not to, which might operate to his detriment, notwithstanding that the trial judge would warn the jury against that fact being used adverse to him.
- The Crown submitted that, even were leave granted under Rule 4 to permit the applicant to pursue this ground of appeal, the applicant has not demonstrated that the failure to give an Azzopardi direction has led to a miscarriage of justice, in the sense that it led to a loss of a chance of an acquittal and, for that reason, the first ground of appeal should be dismissed.
- The trial judge's direction concerning the ERISP was as follows:
Here, members of the jury, the accused gave a version of the events. He took part in a recorded interview with investigating police. And, of course, you are aware that he denied the offending. The accused is entitled to rely upon that account and ask you to take that into consideration with the other evidence called by the Crown. The accused is not required to prove that this account is true. The Crown in discharging its obligation to prove the accused's guilt must satisfy you that it is a version of events that could not reasonably be true.
Members of the jury, during the course of the trial the accused has called evidence. The fact that the accused has called evidence before you, namely the testimony of his wife … does not alter the burden of proof. The accused does not to prove that her version is true. Members of the jury, the fundamental proposition is that it is for the Crown to prove the guilt of the accused.
- After the jury retired, they asked to view DE's JIRT interview and her pre-recorded evidence. Before the pre-recorded evidence was played in open court (the other items being exhibits in the trial provided to the jury for their continued deliberations) the trial judge gave the following further direction:
Now, I must warn you that you must be careful not to give the evidence any greater weight than you would any other part of the evidence in the case. It is one part of the evidence and you must, in relation to this trial, consider all the evidence when making your decision, and in particular you must also give consideration to the accused's account when he spoke to the police and in which, of course, he completely denied touching [DE] in a sexually inappropriate manner. (Emphasis added.)
- In reminding the jury of Ms Davenport's closing address, she said:
In relation to the accused and the account that he had given in his recorded interview, Ms Davenport raised for your consideration the issue of why volunteer the information about being in the bathroom, and the submission made was that it demonstrates he was open and forthright, and this was the submission made he would not have offered if he had a guilty mind.
- The Crown submitted that even accepting that this Court has recognised, consistent with what was said in Azzopardi at [51], that it is desirable that a jury is directed that where an accused does not give evidence that cannot be used in any way adverse to the accused, the direction is not mandatory and has not been treated as such in any of the authorities that have had occasion to consider it. The Crown submitted that where no evidence has been adduced on the appeal from Ms Davenport or her solicitor to explain her failure to seek a direction, and where the error now contended for could easily have been cured were the trial judge's attention drawn to it, the Court would more readily conclude that there was an informed forensic decision made, in the atmosphere of the trial, by an experienced trial counsel not to seek a direction and, in those circumstances, no miscarriage of justice has resulted from the direction not being given.