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[2012] NSWCCA 62
respondent. Appeal against conviction dismissed.
The prosecution relied on evidence linking O'Grady to the name “Ace” and on his prints inside the apartment. The defence suggested the prints might have been left on an earlier visit, but the occupants did not give evidence supporting that possibility. The appeal court held that the prosecutor's reference to “no innocent explanation” was not, in context, a comment on O'Grady's silence. It also held that the judge's comment about the lack of an explanation was accompanied by sufficient safeguards and did not misdirect the jury. The conviction appeal was dismissed.
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2,256 words · generated 30/09/2026
Andrew William O'Grady appealed his jury conviction for specially aggravated break, enter and steal in company, under s 112(3) of the Crimes Act 1900. The special aggravating circumstance was the wounding of the occupant of the apartment. The offence carried a maximum penalty of 25 years imprisonment, but there was no appeal against sentence ([3]).
No linked legislation citations have been extracted yet.
The Crown case depended principally on evidence from co-offender Robert Puha and on O'Grady's fingerprint and partial palm print inside the apartment's front door ([4], [14]). Puha described a third man, whom he knew as “Andrew” or “Ace”. The appellant had a tattoo reading “Ace” on his forearm. Puha was not asked formally to identify O'Grady, and phone-call records that might have supported Puha's account were not produced ([17]). The court described the necessary inference as one drawn from the combination of Puha's reference to “Ace”, the tattoo and the prints ([18]).
The prosecution account was that, on 12 May 2008, three men went to the Tempe unit, assaulted the occupant and stole property. The evidence included that the men left through the front door and stairwell ([10]-[12]). Puha's prints and O'Grady's prints were found on the inside of that door on the day of the offence. The prints were described as relatively clear and appearing recently deposited ([14]). However, the fingerprint evidence could not establish when the prints were made, a point reflected in the defence closing address ([20], [23]).
At trial, the defence advanced the possibility that O'Grady had visited the unit on an earlier occasion. Counsel sought to connect that possibility with evidence about drug use and visitors to the premises ([20]-[21]). The occupants did not agree that O'Grady might have visited before. The judge therefore observed that the anticipated evidentiary basis for the proposed explanation had not emerged; the explanation rested with O'Grady ([22]). The defence then put forward an account involving a possible earlier drug purchase, but the court considered that account lacked an evidentiary basis and invited speculation ([23]-[24]).
The appeal raised two related complaints. First, O'Grady argued that the prosecutor's statement that there was “no innocent explanation” for his prints contravened s 20 of the Evidence Act 1995. Second, he argued that the judge erred by telling the jury the Crown submitted that, without an explanation, it might be easier to accept the prosecution case ([5]-[6], [28], [36]). The Court of Criminal Appeal rejected both grounds and dismissed the appeal ([47]-[48]).
The court assessed the prosecutor's phrase in context, rather than treating “no innocent explanation” as prohibited simply because it could refer to the absence of an explanation. The surrounding submission recalled that neither occupant knew anyone called Andrew or Ace, or had invited such a person into the unit. The prosecutor then addressed the defence suggestion that O'Grady might have been there before without the occupants knowing his identity ([28]-[29]).
The court reasoned that the phrase described the state of the Crown evidence. If an occupant had acknowledged that O'Grady or someone by those names might have visited earlier, that evidence could have provided an innocent explanation for the prints ([32]). The phrase did not arise in a discussion of O'Grady's lack of evidence. Its “plain reading” did not justify treating it as a veiled comment on his failure to testify ([33]). The fact that defence counsel had not objected reinforced the court's assessment of how the address was understood in the trial context ([30], [34]). The court did not treat lack of objection as decisive, but as a contextual consideration.
For the summing-up ground, the court first corrected the appellant's characterisation of the Crown case. It was not a direct-evidence case identifying O'Grady as an offender. Rather, the prosecution relied on a combination of circumstantial matters: Puha's account, the tattoo and the prints ([40]). The court contrasted this with RPS v R, which it described as involving the complainant's evidence and partial admissions ([40]). It therefore held that the appellant's reliance on RPS's discussion of a direct-evidence case did not resolve the issue.
The court then considered Azzopardi v The Queen. As recounted in the judgment, Azzopardi recognises that comment may be possible where relevant additional facts, if they exist, would be peculiarly within the accused's knowledge. But an accused is not required to explain or contradict evidence already given. Any permitted comment must be carefully confined and accompanied by directions on the burden of proof and the absence of an obligation to testify ([45]). Applying those principles, the court identified the potentially explanatory fact as the time and occasion of any earlier visit by O'Grady, a matter it considered peculiarly within his knowledge (46).
The judge's words were treated as a comment about an absent explanation, not a direction that the jury could reason from silence as evidence of guilt ([42], 46). The judge left the weight of the Crown's submission to the jury and located the comment in the context of the prints inside the unit ([36], 46). The judge also reminded the jury of the prosecution's burden, the appellant's lack of obligation to give evidence, and the fact that silence was not an admission and could not fill gaps in the Crown case. The judge added that there might be reasons unknown to the jury for not testifying ([36], 46-(e)). Taken together, these features led the court to find no misdirection.
The judgment does not purport to restate the law comprehensively. Its account of the governing principles is drawn from the authorities it discusses, particularly RPS and Azzopardi, and from s 20 of the Evidence Act 1995.
Section 20(2), reproduced at [26], allows a judge or a party other than the prosecutor to comment on a defendant's failure to give evidence, subject to a prohibition on suggesting that the defendant remained silent because of guilt or a belief in guilt. The specific complaint here was about a prosecutor's words, and the court's answer depended on whether, read in context, they amounted to a comment on O'Grady's silence at all ([31]-[34]).
RPS is discussed as distinguishing direct-evidence cases from cases where guilt is inferred from circumstances ([39]-[41]). The judgment explains that RPS cautioned against expecting an accused to contradict direct evidence. It also recounts the relevance of the circumstances considered in Weissensteiner, where the use of silence was discussed in connection with facts readily perceived to be within the accused's knowledge ([41]). The Court of Criminal Appeal treated O'Grady's prosecution as circumstantial, not direct, and so rejected the premise of his RPS argument ([40]).
Azzopardi supplies the more specific framework applied to the trial judge's comment. The judgment quotes the High Court's explanation that an accused need not explain or contradict evidence already given, while recognising that a comment might be made about additional facts peculiarly within the accused's knowledge. It also highlights the importance of framing a comment as a failure to offer an explanation, leaving it open to the jury to disregard, and giving adequate directions about burden and silence ([45]). The Court of Criminal Appeal then applied those points to the evidence and summing up before it ([46]).
The “after” effect established by this decision is limited to its application of those authorities on these facts. The judgment does not announce a new statutory test or say that every unexplained fingerprint, or every fact within an accused's knowledge, permits comment. Nor does the supplied judgment provide decisions from later courts. Its effect should therefore be described as a fact-specific application, not as evidence of subsequent development.
At [32], Latham J explained that the prosecutor's phrase reflected the absence of an alternative explanation in the evidence from the occupants. In plain English: the Crown was pointing out that the witnesses who lived in the unit did not support the suggested earlier visit.
At [33], the court said that the phrase could not be elevated, on its own, into a veiled comment about O'Grady's failure to give evidence. The point is contextual: a potentially sensitive expression does not necessarily amount to a comment on silence when the surrounding argument is about what the other evidence does or does not show.
At [40], the court described the case as indirect. In plain English: no witness directly identified O'Grady as one of the men who committed the offence; the jury was asked to infer that identity from several pieces of evidence considered together.
At [45], the judgment explained that an accused need not contradict evidence already given by witnesses. It also set out the possibility of comment where an additional fact, capable of explaining the prosecution inference, would be peculiarly within the accused's knowledge. In plain English: the distinction is between asking the accused to answer the Crown's existing evidence and referring, in a properly safeguarded way, to a separate matter that only the accused could readily explain.
At [46], the court applied that distinction to the possible earlier visit and the judge's directions. In plain English: the court considered the timing and circumstances of any previous visit to be a matter within O'Grady's knowledge, and considered the judge's explanation of the jury's role and the right to silence sufficient in this trial.
The decision is most relevant where a prosecution case is circumstantial and the jury is asked to infer identity or involvement from physical evidence and other connecting circumstances. Here, the Crown relied on the prints, Puha's account and the “Ace” tattoo, rather than a direct identification by the victim or Puha ([17]-[18], [40]).
It also addresses a situation where the defence proposes a specific innocent explanation for physical evidence, but the expected supporting evidence from other witnesses does not emerge. The defence had suggested that O'Grady might have visited the unit before the offence. The occupants did not support that possibility, and the court noted the resulting evidentiary gap ([20]-[22]). The court's reasoning focused on the difference between evidence that might have come from those witnesses and an additional fact about an earlier visit that would be within the appellant's knowledge ([32], 46).
The precedent is also relevant when a judge refers to the absence of an explanation but gives directions that preserve the prosecution's burden and the accused's right not to testify. The court relied on the judge's statements that silence was not an admission, could not fill gaps, and might have reasons unknown to the jury ([36], 46-(e)).
The judgment does not establish that these circumstances automatically permit comment. Its reasoning turns on the exact words, their context, the nature of the prosecution case, the subject matter of the possible explanation, and the safeguards in the summing up. The judgment also notes that an accused is not required to explain or contradict evidence already given by witnesses, so that distinction remains central ([45]).
The supplied judgment provides no later decisions applying, distinguishing or criticising O'Grady v R. It would therefore be unsupported to describe how later courts have treated this decision or to claim that it has been adopted as a general rule in subsequent cases.
Within O'Grady itself, the Court of Criminal Appeal relied on earlier authorities rather than considering later treatment of its own decision. It applied Azzopardi's approach to comment on a failure to offer an explanation, distinguished the direct-evidence context in RPS, and referred to Dyers, Wilson and OGD in considering the permissible form and sufficiency of directions ([39]-[46]). The discussion of Weissensteiner and Whinfield appears as part of the judgment's account of the principles in RPS and Azzopardi ([41], [45]).
For research purposes, the judgment can be located within that chain of authorities, but the text supplied does not establish its subsequent precedential reception. Any account of later treatment would require later judgments or other sources beyond this decision.
The judgment resolves the two grounds of appeal before it, but it leaves several matters dependent on context. It does not specify a universal test for when words such as “no innocent explanation” become a comment on an accused's silence. Instead, it evaluates the prosecutor's words in their place in the closing address and in light of the defence position at trial ([28]-[34]).
It also does not define the limits of what counts as an additional fact “peculiarly within” an accused's knowledge. The court treated the time and occasion of an earlier visit as such a fact on these circumstances (46); it did not decide how that reasoning would apply to other kinds of physical evidence or alternative explanations.
The judgment does not state that a judge must use one formula of words in directing a jury. It refers to the adequacy of the actual directions and observes, by reference to Wilson, that prescriptive words are not required and sufficiency is assessed in the circumstances (46). The judgment's focus is therefore on the combined effect of the direction, including the burden of proof, the absence of an obligation to testify, and the warning that silence does not fill gaps or amount to an admission ([36], [46]).
Finally, the decision does not determine the jury's reasoning process or independently reassess the conviction evidence. Its appellate conclusion is that the challenged comments did not establish the claimed legal errors. The appeal against conviction was dismissed ([47]-[48]).
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Judgment 1WHEALY JA : I agree with Latham J and with the order proposed by her Honour. 2HISLOP J : I agree with Latham J. 3LATHAM J : The appellant appeals against his conviction before a jury on one count of specially aggravated break enter and steal in company, pursuant to s 112(3) of the Crimes Act 1900. The circumstances of special aggravation were constituted by the wounding of the victim of the offence, who was the occupant of the relevant apartment. The offence carries a maximum penalty of 25 years imprisonment. There is no appeal against sentence. 4The Crown case against the appellant consisted principally of evidence from a co-offender (Mr Puha) and the presence of the appellant's fingerprint and palm print on the inside of the front door to the apartment. The appellant did not give or call evidence on his behalf. 5There are two grounds of appeal that are inter-related. The second ground of the appeal maintains that there has been a miscarriage of justice occasioned by the closing address of the trial advocate, in that it was submitted that there was no innocent explanation for the presence of the fingerprint and palm print. This, it is said, constituted a contravention of the prohibition against any comment by the Crown to the effect that an accused failed to give evidence : s 20 Evidence Act 1995. 6The first ground of the appeal claims that the trial judge erred in purportedly repeating the Crown's submission to the jury that they might more readily accept the prosecution case in the absence of an explanation for the presence of the fingerprint and palm print. 7Both grounds call for a consideration of the case against the appellant and the context within which these remarks were made.
The Evidence at Trial 8In the evening of 11 May 2008, Bradley Carter and Robert Puha met at the latter's home in Concord where they consumed alcohol and smoked ice. Between 8pm and 10pm, a man known to Mr Puha as "Andrew" or "Ace" joined them. Mr Puha had only met Ace once or twice in the preceding weeks and had provided Ace with his phone number. 9Some time after his arrival, Ace told Mr Puha that he had had a "bad drug deal" and suggested that they go to the dealer's house in Tempe to "rough him up". Ace wanted Mr Puha to provide "the muscle". 10The three men drove to a block of units in Tempe at about 8am on 12 May where they searched for an entry point to the units. They ultimately gained access to the underground car park when a car drove out. From the car park, they entered a stairwell and ran up a number of flights but could not leave the stairwell because the doors were locked. Ace managed to open a door with the aid of a screwdriver or knife. All three men went to the door of the victim's unit and knocked on the door. 11As the victim opened the door, he was forced back into the unit and onto the couch. Ace made demands of the victim for money and drugs. All three men began to punch the victim until he lapsed into unconsciousness. The victim's blood was distributed around the walls of the unit, on the floor tiles, the couch and on the carpet. The three men began to ransack the unit for property. Mr Puha took the television. Ace and Mr Carter took a quantity of jewellery and drugs from the bedroom safe. 12The three men left the unit via the front door and stairwell, which gave them access to a side street. They drove to a Redfern unit where Mr Puha smoked more drugs. A short time later, all three drove to Kent street in the city where Ace left the vehicle. Mr Puha and Mr Carter drove to Five Dock where they ran out of petrol. 13Late in the morning of that day, police questioned Mr Puha and Mr Carter about the contents of a backpack carried by Mr Carter. They were arrested and taken to Burwood police station. A search of the motor vehicle revealed the flat screen TV, DVD player and other property taken from the victim's unit. 14Mr Puha's left index and middle fingerprint were found on the interior surface of the front door on 12 May 2008. The appellant's partial right palm print and left index fingerprint were found on the interior surface of the front door approximately 0.3 m above Mr Puha's prints, on the same day. The prints were relatively clear and appeared to have been recently deposited. 15A search of the victim's unit on the day of the offence and the day after revealed a quantity of methylamphetamine in a number of small clear resealable plastic bags in various rooms. There was also a quantity of drug paraphernalia, such as syringes and pipes, located in the unit. The victim admitted to being a recreational drug user, but denied supplying drugs. However, the victim acknowledged that his partner (Mr Kearney), who lived with him in the unit, was "possibly" a drug dealer and that people came to the unit to purchase drugs. 16Mr Kearney also denied supplying drugs and denied using illicit drugs. Both the victim and Mr Kearney denied ever having met Mr Puha, Mr Carter or the appellant. Specifically, the victim and Mr Kearney testified that they had never let a person named "Andrew", "Ace" or "Andrew O' Grady" into their apartment. The effect of this evidence was to establish that, despite their denials, either the victim and/or his partner may have been supplying drugs from the unit, but had not done so to the offenders or to the appellant. The evidence was in any event consistent with the motive expressed by "Ace" (according to Mr Puha's evidence) for assaulting the victim. 17The appellant was arrested and cautioned on 6 April 2009. His right forearm bore a tattoo, which read "Ace". Mr Puha was not asked to formally identify the appellant. Mr Puha gave evidence that "Ace" had phoned him earlier in the evening of 11 May 2008. Mr Puha also said that the police inquiries relating to incoming phone calls to Mr Puha identified the appellant's number, but no evidence of those phone call records was produced in the Crown case. 18Thus, a finding of guilt depended upon the jury drawing the inference, from the combination of Mr Puha's reference to "Ace", the appellant's tattoo, and the appellant's print on the inside of the door to the unit, that the appellant was the third offender.
The Case Advanced on Behalf of the Appellant 19Before dealing with the grounds of the appeal, it is necessary to refer to the opening address, certain aspects of the cross examination of the Crown witnesses, and the closing address by counsel appearing for the appellant at trial. 20Counsel opened to the jury, in part, in the following manner :- Mr O'Grady, by pleading not guilty has effectively said to you, "I wasn't there". And, "I wasn't there on the day in question". So the first thing you have to do before you think about Mr O'Grady's position is decide whether or not there was a third man. If you find that there was a third man, then was that third man Mr O'Grady. Now, the only evidence linking Mr O'Grady with [the victim,s] flat, other than what Mr Puha says, the fingerprints that Madam Crown has referred you to, found on one of the doors in [the victim's] flat. If you accept that those fingerprints were there and that they were Mr O'Grady's then the next issue you have to decide is whether those fingerprints, I'll use the word "made" on 12 May 2008 by Mr O'Grady or is it possible that they were made some other time. In other words, is it possible that Mr O'Grady had been to that flat on some other occasion, because you can't date fingerprints. ............................................................................... So when did Mr O'Grady put that fingerprint on that door, sorry, fingerprints, palm print, 1 1/2 fingerprints. ......... And for that you'll have to understand something about [the victim's] lifestyle and what he was up to at the time. Now you've been told that a certain amount of equipment, medical supplies they were described as, had been found in the possessions that were stolen. .......... You will see a photograph of a bong, cannabis, smoking bong. You will have to decide whether given [the victim's] lifestyle, if I can use that term and the sort of things he was doing, whether it is possible that Mr O'Grady had been to his flat on some previous occasion. I'm going to suggest to you that the evidence I expect you will hear from [the victim] that you will be able to reach that conclusion. 21In the course of the cross examination of the victim of the offence, which included questions that explored the victim's drug-taking and various occasions when he and his partner had entertained others in the premises, the following question and answer appears :- Q : So in those circumstances, Mr Davis, you'd agree that it is possible that Mr O'Grady had been to your flat some time before 12 May 2008? A : I can't agree to that. 22At the close of the evidence in the trial, the anticipated basis for putting to the jury the proposition that the appellant's counsel had opened upon (italicised above) had not materialised. Without the victim or his partner acknowledging the possibility that the appellant had been to the unit before the day of the offence, the explanation for the presence of the appellant's prints resided solely with the appellant. 23In the course of the appellant's counsel's closing address the following was said :- And the only thing that might lead you to think that he was there of any concrete value I would submit, as Madam Crown has told you, are the fingerprints that were found in [the victim's] apartment. All that tells you though is that Mr O'Grady has been to that apartment at some time. You have to be satisfied that that time included 12 May and if there is any reasonable explanation as to why Mr O'Grady might have been there at some other time, then you can't conclude that those prints mean that he was there on 12 May. Because the fingerprints can't be dated, they can't be time stamped, you heard that from both fingerprint experts. ....................................................................... Now you were asked earlier this morning to wonder about the relevance of whether or not drugs were being dealt in this particular apartment. And you are entitled to ask yourself well why would Mr O'Grady have been to this apartment. But you don't know why he's been there, there is no evidence from him and he is not obliged to give you any evidence, the onus falls strictly on the Crown to prove every element of this offence. So you don't know anything about Mr O'Grady ............................. ..................................................................................... If you're looking for a reason or an explanation as to what was going on in that apartment I suggest to you that those people, groups of two or three could well have been going there to buy drugs and there is every possibility that two or three would gain access to that unit, but the transaction was done by one person with [the victim] or Mr Kearney and therefore they wouldn't necessarily know who that other second or third person was. That's a possibility and it is also a possibility that having gained access to the apartment the person who wasn't strictly involved in the drug transaction stood in the hallway, remained out of the picture. Was there but wasn't part of it. What could that person have done? Well he could well have leaned on that front door couldn't he while something else was happening in the lounge room. And that's relevant when you think about well what were the prints of Mr O'Grady that were found. ........ They are consistent certainly the palm print, with someone leaning on the door and I think that was the expression sergeant Searles used. So perhaps Mr O'Grady was doing that on one or two occasions but ask yourself this, is it likely in the context of the assault that Mr Puha has described that someone when they were all throwing punches and all getting stuck into it was back up the hallway leaning on the door. ....................................... I say to you on the basis I've just explained that Mr O'Grady sometime over the previous 12 or longer period, 12 months or longer, had been there to buy drugs from Mr Kearney or [the victim] and that would explain how his fingerprints came to be there. 24There was no evidentiary basis for the submission set out above. It invited the jury to speculate. The defence case rested upon the rejection of Mr Puha as an untruthful witness. It was submitted that Mr Puha could not be believed even to the extent that there was a third man involved in the commission of the offence. The defence case also rested upon the rejection of any identification of the person "Ace" or "Andrew" as the appellant. There was no evidence that the appellant consumed or purchased drugs from anyone, unless the jury accepted Mr Puha's evidence as to the motivation for the robbery upon the victim and accepted that the person Mr Puha described as "Ace" was the appellant. If the jury did so, the Crown plainly proved its case. 25It is convenient to deal with the second ground of appeal first.
Ground 2 : Contravention of s 20 Evidence Act 1995 26Section 20(2) of the Evidence Act provides :- The judge or any party (other than the prosecutor) may comment on a failure of the defendant to give evidence. However, unless the comment is made by another defendant in the proceeding, the comment must not suggest that the defendant failed to give evidence because the defendant was, or believed that he or she was, guilty of the offence concerned. 27The alleged contravention by the trial advocate in the Crown's closing address appears shortly after the trial advocate summarises for the jury the critical issue in the Crown case. The critical issue, namely, whether it was the appellant who was a third offender, was to be determined by a finding beyond reasonable doubt that the appellant's fingerprint and palm print on the inside of the unit door were deposited during the time of the offence. The trial advocate stressed, correctly, that that question was to be determined on the basis of the evidence, not on the basis of any theoretical possibility. 28Next, the trial advocate reminded the jury of the evidence of the victim and Mr Kearney to the effect that no one by the appellant's name or by the name of Andrew or Ace had ever been inside the unit to the knowledge of either of them. There then followed the impugned passage :- There were only two men who have lived there. Mr Davis [the victim] had lived there for four years. If neither of them knew anyone named Andrew or Ace, and never invited such a person into their unit, then there is no innocent explanation for how this accused's fingerprints were placed on the inside of the door of their unit. 29Immediately after this passage, the trial advocate refers to the suggestion put on behalf of the appellant that there may have been a party or an occasion when the appellant was inside the unit in circumstances where neither the victim or Mr Kearney was made aware of his identity. The submission followed that "when you look at all the evidence there is no evidence that this accused was there on any other occasion but for the day that Mr Davis was assaulted and robbed and you know he was there on that day because you have the evidence of Mr Puha and I will speak to you at some length about his evidence in due course." The balance of the closing address dealt with a review of the evidence, including Mr Puha's evidence and why the jury ought to find him reliable. 30No objection was taken at trial to these submissions. Rule 4 therefore applies. 31The appellant maintains that the above excerpt at [28] from the prosecutor's closing address constituted a comment on the failure on the part of the appellant to give evidence in relation to how his fingerprints came to be discovered on the inside of the entry door to the apartment. 32The difficulty with this submission is that the reference to "innocent explanation" does not arise in the context of a discussion about the absence of any evidence or explanation from the appellant. In fact, the phrase simply reflects the state of the evidence in the Crown case, in that if the occupants of the unit had acknowledged that anyone by the name of Andrew or Ace or with the surname O'Grady may have visited at some time preceding the commission of the offence, such evidence could constitute an innocent explanation for the presence of the fingerprints and palm print. 33It may be that the phrase "innocent explanation" has a particular resonance for criminal practitioners. However, it is by no means axiomatic that the use of such a phrase conveys to a jury that the trial advocate was in effect commenting upon the failure of the appellant to give evidence. A plain reading of the address does not justify elevating a single phrase to a veiled comment about the failure of the appellant to give evidence. 34Counsel's failure to object to this aspect of the trial advocate's address reinforces my conclusion that it was not construed as a prohibited comment, particularly having regard to the issues that were joined at trial. It was clear that the appellant's case was that there was an innocent explanation for his prints on the inside of the front door and that the appellant expected the victim's evidence to support that innocent explanation. It was entirely legitimate for the trial advocate to attempt to meet the submission that the appellant's counsel in fact later made. 35In my view, there is no substance to this ground.
Ground 1 : Error in Judge's Summing Up. 36Towards the end of the summing up, the trial judge instructed the jury in these terms :- Members of the jury, you are aware that we recognize the right to silence in our community. In other words, if an accused person or a suspect is spoken to by police the person is told that they do not need to answer police questions. And if they elect to exercise their right to silence then that is their entitlement. No adverse inference can be drawn from the fact that a person exercises their right to silence. Similarly, in the case of a trial, an accused may give evidence in his trial but there is no obligation upon him to do so. Just as in the case of police interviews, in court proceedings we recognize the right to silence. The prosecution bears the onus of proving an accused's guilt beyond reasonable doubt and an accused person does not have to prove anything, he is presumed to be innocent unless and until the prosecution prove him guilty beyond reasonable doubt. On the other hand, in this case, the Crown submits that if there was an alternative explanation to the presence of fingerprint and palm print then that explanation would be known to the accused and, in the absence of any explanation from the accused about the fingerprint and palm print, you may find it easier to accept the prosecution case. It is up to you to decide what weight you give to that submission by the Crown about the absence of any explanation for the fingerprint and palm print. However, once again I remind you that you cannot treat the accused's silence as an admission of guilt or as filling in any gaps in the prosecution case. There may be good reasons unknown to you why an accused would choose not to give evidence. For example, he might be concerned that he might be confused by cross-examination and he might decide that he prefers to rely upon an argument about weakness in the Crown case and to argue that the Crown cannot prove the case beyond reasonable doubt because the onus is always on the Crown to prove the case beyond reasonable doubt and there is no obligation on an accused to prove or say anything. 37The trial judge then went on to summarise the submissions put by the Crown and by the appellant's counsel in their respective closing addresses. 38The first thing to note is that the italicised excerpt from the passage set out above was not a submission made by the trial advocate. At no time in the course of the trial advocate's closing address was any reference made to an explanation known to the accused or to the relative ease with which the prosecution case might be accepted by the jury in the absence of an explanation. 39The appellant contends that this part of the summing up represents a contravention of RPS v R [2000] HCA 3 ; 199 CLR 620, in particular the statement from the joint judgment that "in a case where the prosecution leads direct evidence of the accused's guilt it is therefore not right to say that it would be reasonable to expect the accused to give evidence denying or contradicting that direct evidence." The appellant then submits that the case against him was a direct evidence case. The appellant also submits that the trial judge erred in that her Honour directed the jury that the appellant's failure to give evidence "could enable the jury to feel more confident in relying on the prosecution evidence." : RPS v R at [40] ; 637. 40There are a number of inaccuracies in these submissions. First, as I have already observed at [18], the case against the appellant was indirect. There was no identification of the appellant as an offender by the victim or by Mr Puha. The Crown case consisted of the combination of Mr Puha 's evidence, the appellant's tattoo and the presence of the appellant's prints inside the premises. By way of contrast, RPS was a direct evidence case consisting of the complainant's evidence against her father and some partial admissions by the accused. 41The importance of the distinction between a direct and an indirect prosecution case, in determining whether any direction or comment relating to the failure of an accused to give or call evidence infringes the right to silence, was highlighted in the following passage of the plurality judgment at [34] - [35] in RPS :- In a case where the prosecution leads direct evidence of the accused's guilt (as will usually be the case where sexual offences against a young person are alleged) it is, therefore, not right to say that it would be reasonable to expect the accused to give evidence denying or contradicting that direct evidence. Especially will that be so where more than one count is charged. In such a case, the course which the accused takes may very well be affected greatly by whether the denial or contradiction of each charge can be maintained with the same degree of force. The present case (and cases of a similar kind) must be contrasted with that considered by this Court in Weissensteiner. There the prosecution case was that the accused's guilt was to be inferred from circumstances, particularly the unexplained disappearance of those whom it was alleged he had murdered, and his possession of the boat and equipment which they owned and from which they had disappeared while on a voyage with the accused. The majority of the Court held that the trial judge in that case had made no error by directing the jury that they could more safely draw the inferences which the prosecution alleged should be drawn "when the accused elects not to give evidence of relevant facts which can be easily perceived to be in his knowledge" But as Mason CJ, Deane and Dawson JJ pointed out in Weissensteiner : "Not every case calls for explanation or contradiction in the form of evidence from the accused. There may be no facts peculiarly within the accused's knowledge. Even if there are facts peculiarly within the accused's knowledge the deficiencies in the prosecution case may be sufficient to account for the accused remaining silent and relying upon the burden of proof cast upon the prosecution. Much depends upon the circumstances of the particular case and a jury should not be invited to take into account the failure of the accused to give evidence unless that failure is clearly capable of assisting them in the evaluation of the evidence before them." And as the other members of the majority in Weissensteiner (Brennan and Toohey JJ) said : "The facts from which an inference of guilt may be drawn are correctly identified [in the charge to the jury] as facts which the prosecution is able to prove. The use to which the appellant's failure to give evidence may be put is correctly restricted to the strengthening of an inference of guilt from the facts proved. And the jury is told not to use the appellant's failure to give evidence unless relevant facts 'can be easily perceived to be in his knowledge'. This additional requirement, which follows a decision of the Court of Criminal Appeal of Queensland in Reg v Whinfield, ensures that the drawing of an inference of guilt will not be assisted by an accused's failure to give evidence unless it is reasonable to expect some denial, explanation or answer by the accused to the prima facie case made against him." 42The second inaccuracy in the appellant's submissions on this ground is that the trial judge did not give the jury a direction on the appellant's failure to give evidence. It was a comment that purported to repeat a Crown submission relating to the failure to provide an explanation. 43According to the terms of s 20 of the Evidence Act, a trial judge may comment on the failure of an accused to give evidence, provided that the comment does not suggest that the accused did not give evidence because he/she was, or believed him/her self to be, guilty of the offence. The appellant does not submit that the trial judge fell foul of that provision. 44It is appropriate at this point to review what followed RPS in the High Court. 45The majority in Azzopardi v The Queen [2001] HCA 25 ; 205 CLR 50 said :- [52] As will later appear, there may be cases where the failure of an accused to offer an explanation by reference to some matter peculiarly within his or her knowledge will permit comment to be made as to that failure. However, as with all judicial comments on the facts in a jury trial, it will often be better (and safer) for the judge to leave the assessment of the facts to the determination of the jury in the light of the submissions of the parties. [64] There may be cases involving circumstances such that the reasoning in Weissensteiner will justify some comment. However, that will be so only if there is a basis for concluding that, if there are additional facts which would explain or contradict the inference which the prosecution seeks to have the jury draw, and they are facts which (if they exist) would be peculiarly within the knowledge of the accused, that a comment on the accused's failure to provide evidence of those facts may be made. The facts which it is suggested could have been, but were not, revealed by evidence from the accused must be additional to those already given in evidence by the witnesses who were called. The fact that the accused could have contradicted evidence already given will not suffice. Mere contradiction would not be evidence of any additional fact. In an accusatorial trial, an accused is not required to explain or contradict matters which are already the subject of evidence at trial. These matters must be assessed by the jury against the requisite standard of proof, without regard to the fact that the accused did not give evidence. [65] In RPS, McHugh J expressed the view that, if the circumstances of a case are such that some comment is permissible, the preferable course is for comment to be made in terms of a failure to offer an explanation, rather than a failure to give evidence. That was the approach that Gaudron J and his Honour endorsed in Weissensteiner, saying : "it is the failure to provide an 'explanation or answer ... as might be expected if the truth were consistent with innocence' ... which is of evidentiary significance and not the failure to give evidence as such. In many cases, an explanation can be offered without the giving of evidence ... Accordingly, directions should be given in terms of the unexplained facts, rather than in terms of the failure to give evidence or to meet the prosecution case ... or the failure to answer questions from investigating police." (footnotes omitted) [66] In Weissensteiner, Gaudron and McHugh JJ were in dissent. Subject to one important qualification, however, the approach taken by their Honours in that case is one that conforms to s 20(2) of the Evidence Act. More to the point, to refer to the failure of an accused to give evidence, rather than his or her failure to offer an explanation is to risk contravention of the prohibition in s 20(2) against suggesting that the accused failed to give evidence because he or she was guilty or believed himself or herself to be so. [67] The qualification to which reference has just been made is this: as already explained, a judge may comment on evidence, not give directions with respect to the evidence. If the circumstances are such as to permit a comment with respect to the failure to offer an explanation, it should be made plain that it is a comment which the jury are free to disregard. If made, it should be placed in its proper context. That requires identifying the facts which are said to call for an explanation and giving adequate directions to the jury about the onus of proof, the absence of any obligation on the accused to give evidence, and the fact that the accused does not give evidence is not an admission, does not fill gaps in the prosecution's proofs and is not to be used as a make-weight. And the comment should not go beyond that made in Weissensteiner, as adapted to refer to the failure to offer an explanation rather than the failure to give evidence. (italics not in original) See also Dyers v R [2002] HCA 45, per McHugh J at [24]. 46Applying these authorities to the circumstances of the instant case, I am of the view that there is no validity in the appellant's argument on this ground for the following reasons :- (a)The additional fact which would contradict the inference which the prosecution sought to have the jury draw, was a fact which was peculiarly within the knowledge of the appellant, namely, the time and the occasion prior to 12 May when he went to the victim's unit and was permitted entry. (b)The trial judge's comment was made in terms of a failure to offer an explanation, rather than a failure to give evidence. (c)The trial judge's comment made clear to the jury that it was a matter for them what weight they placed upon that feature of the case and the comment was made in the context of the fact which called for an explanation, that is, the presence of the appellant's prints inside the unit. (d)The trial judge gave adequate directions to the jury about the onus of proof, the absence of any obligation on the appellant to give evidence, and the fact that the appellant's failure to give evidence was not an admission and did not fill gaps in the prosecution case. To the extent that the directions did not go further and instruct the jury against use of the appellant's silence as a make-weight, this Court has held that prescriptive words are not required and that the sufficiency of the direction is to be assessed in the circumstances of each case : R v Wilson [2005] NSWCCA 20. (e)The trial judge also directed the jury in accordance with R v OGD (1997) 45 NSWLR 744, that there may be reasons unknown to the jury why the appellant refrained from giving evidence. This direction enhanced the Azzopardi direction. 47I am not persuaded that there has been any misdirection. I would reject Ground 1 of the appeal. 48The order I propose is :- (1)Appeal against conviction dismissed. 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O'Grady
R
Appeal against conviction dismissed.