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[2005] NSWCCA 127
respondent. Appeal against conviction dismissed. Leave to rely on ground 1 was refused; ground 2 was rejected. [27], [34]–[38]
Graham sent a package containing heroin to Wagga Wagga and said in a police interview that she thought it held a video, not drugs. She did not testify at trial. The appeal court accepted that a warning about an accused's silence is often desirable, but held that its absence did not cause a miscarriage in this trial: the jury had been told the Crown had to prove the case, and the interview was to be treated as evidence. The jury could also rely on the surrounding circumstances to find that Graham knew what the package contained. Her conviction appeal was dismissed.
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2,438 words · generated 29/09/2026
Kelly Anne Graham appealed her conviction for knowingly taking part in the supply of heroin. Her conviction followed a trial before Taylor DCJ and a jury. The sentence was imprisonment for one year and eight months, with a non-parole period of one year, suspended under s 12 of the Crimes (Sentencing Procedure) Act 1999. The application for leave to appeal sentence was abandoned, so the Court of Criminal Appeal considered only the conviction appeal. [1]–[2]
No linked legislation citations have been extracted yet.
The central factual issue was whether Graham knew that a package she took to an air express office contained heroin. She had been in a de facto relationship with Corey Franks. Franks travelled to Wagga Wagga with Carland and Rogers, while Graham was not present when they left. On 14 March 2003, Graham took a package containing a video to Australian Air Express at Mascot and arranged for it to be sent on the next flight to Carland at a motel in Wagga Wagga. She paid $151.40. [3]–[5]
The package was scanned and inspected. Police found small bags containing a total of 5.32 grams of heroin, but allowed the package to be delivered under surveillance. It was delivered to Carland at the motel, where police found the package had been opened and the video cover and tape were on the floor. Graham's thumbprint was later detected on the left-hand corner of the tape. [6]–[8]
Graham gave a recorded police interview after police contacted her. Her account was that she had been asked to collect a birthday present and send it to Wagga Wagga. She said Rogers told her it was a pornographic video package and that Franks would reimburse the delivery cost. The interview included some differences in her account of where she had been, how she travelled, and how she got to the airport. She consistently denied knowing that the package contained drugs. [9]–[16]
At trial, Graham did not give evidence and called no evidence. Her recorded interview was played to the jury. Immediately after defence counsel said Graham would rely on the interview and other evidence, the judge told the jury that Graham did not have to prove anything, that the Crown had to establish the essential ingredients beyond reasonable doubt, and that the interview was evidence to be considered in the same way as other evidence. [14]–[17] The judge did not later give a separate direction warning against using Graham's failure to testify against her. [19], [22]
Graham appealed on two grounds: the missing direction, and that the guilty verdict was unreasonable or unsupported by the evidence. The Court dismissed the appeal. [2], [35]–[38]
Grove J treated knowledge as the key issue. The question was not whether Graham had taken the package to the courier, or whether it contained heroin. It was whether the jury could find beyond reasonable doubt that she knew the drugs were in it. [3], [28]
On the direction ground, Grove J acknowledged the passage in Azzopardi v The Queen stating that it will “almost always be desirable” to tell a jury that an accused's silence is not evidence, is not an admission, cannot fill gaps in the prosecution case, and cannot be used as a make-weight. [20] But the Court did not read Azzopardi as imposing an absolute requirement to give that direction in every trial. It referred to earlier Court of Criminal Appeal decisions, including Richards and SMR, as supporting the view that such a direction is not mandatory in every case. [23]–[24]
The particular context mattered. The jury had heard Graham's lengthy recorded interview, in which she denied knowledge of the drugs. The trial judge expressly told the jury it was evidence and could be considered in the same way as other evidence. Grove J regarded that instruction as more favourable to Graham than a stricter treatment of the interview might have been. The judge also gave firm directions about the Crown's burden. In those circumstances, Grove J was not persuaded that the missing direction caused a miscarriage of justice. [17]–[18], [25]
The procedural context also mattered. Defence counsel had not asked for a direction about Graham's failure to give evidence. Grove J applied Criminal Appeal Rule 4 and referred to Tripodina on the requirement for an appellant to persuade the Court that a miscarriage of justice may have occurred when leave is required. He also quoted Abusafiah to explain that the rule is not a technicality: raising a potential problem at trial gives the judge a chance to correct it, and the rule protects the fairness of the trial process for both accused and Crown. [26]–[27] The affidavit explaining that trial counsel's failure was an oversight did not change the Court's conclusion on the merits. [19], [27]
The verdict ground failed because the Court considered that the circumstantial evidence was capable of supporting the jury's conclusion. Graham had made an urgent and expensive trip to send the package to the place where her boyfriend was staying. She arranged next-flight delivery, paid $151.40, and supplied an address and mobile number that were not hers. Her thumbprint was on the cassette. [28]–[31] The Court recognised possible innocent explanations, including Graham's account that the video showed her son and that the thumbprint could have been on the cassette for some time. It nevertheless held that the jury could reject her account of the arrangements and the explanation for the thumbprint. [29], [31], [33]
Grove J stressed that this was not a case where disbelief of Graham's version was the only basis for the Crown case. The circumstances themselves were capable of supporting the finding of knowledge. [33] The Court therefore rejected both grounds and dismissed the appeal. [34]–[38]
The judgment addresses one focused question about jury directions: what follows when an accused does not testify and the judge does not direct the jury about the significance of that silence. The starting point discussed was Azzopardi. The passage quoted by Grove J says that a warning will “almost always be desirable” and identifies four points a warning may cover: silence is not evidence against the accused, is not an admission, cannot fill gaps in the prosecution case, and cannot be used as a make-weight. [20]
The judgment then makes clear that “almost always desirable” does not mean mandatory in every case. Grove J referred to Richards and SMR in support of that distinction. [23]–[24] He also explained that Wilson had held Macris was wrong and should not be followed, and said he saw no reason to change his view on that question. [21] The result in Graham is not that silence directions are unnecessary as a general matter. Rather, the Court assessed whether the omission produced a miscarriage in the circumstances before it. [22], [25]
The case also applies Criminal Appeal Rule 4 to an unrequested direction. The judgment treats the requirement to raise a complaint at trial as serving a practical purpose: a judge can address a defect when it is identified. Grove J adopted the point from Abusafiah that the rule is not a mere technicality and is part of a fair process for both sides. [26] The Court refused leave on ground 1. [27]
On circumstantial evidence, the judgment's reasoning is case-specific. It does not announce a new general test for proving knowledge of drugs. It instead identifies the evidence the jury could consider and concludes that the jury could reject Graham's innocent explanation. [28]–[34] The Court also noted that counsel at trial had not submitted that there was no evidence fit for the jury to consider, but instead had sought a Prasad-type invitation to acquit at the close of the Crown case. [32]
The “after” position shown by this judgment is therefore limited. It confirms that the desirability of a direction and the question of miscarriage are distinct inquiries, and that Rule 4 is relevant when the direction was not sought at trial. The supplied judgment does not establish how later courts applied or developed those propositions after 1 April 2005.
At [17], the judge told the jury that the Crown had to prove the case and that the recorded interview was “evidence in the case” to be considered like other evidence. In plain English, the jury was not left to think Graham had to establish her innocence, and her account in the interview was placed before them as material they could assess.
At [18], Grove J observed that treating the interview in this way did not qualify its content by referring to its hearsay character or lack of cross-examination. The Court regarded that as favourable to Graham. This is a description of the direction given in this particular trial, not a general rule about how every recorded interview must be treated.
At [20], the Court quoted Azzopardi's statement that a direction about an accused's silence will almost always be desirable. The passage explains the potential risk: jurors might otherwise treat the accused's silence as support for the prosecution, or use it to make up for weaknesses in the Crown case.
At [25], Grove J applied the authorities and the trial circumstances. His conclusion was that the missing direction did not lead to a miscarriage because the jury already had Graham's denial before it, had been told the Crown carried the burden, and could treat the interview as evidence. The conclusion is expressly tied to those circumstances.
At [26], the Court described Rule 4 as serving more than a procedural formality. Where counsel identifies an issue during the trial, the judge can correct a direction before the jury decides the case. The judgment also recognises that an appeal does not automatically follow from an omission that could have been raised and addressed at trial.
At [31] and [33], Grove J explained why the circumstantial case was open to the jury. The jury could consider the urgency and expense of sending the parcel, the false contact details, and the thumbprint, while assessing Graham's account. The Court did not say that any single circumstance conclusively established knowledge.
Howie J added a separate observation at [36]. In his view, an OGD warning was not normally required and should not normally be given, as it could cause jurors to speculate about why the accused had not testified. That is Howie J's stated view in his concurring reasons; the main reasons for the result are Grove J's.
The judgment is most relevant where an accused does not give evidence, but puts an account before the jury through a recorded interview or other evidence, and the trial judge does not give a specific direction about the accused's silence. In Graham, the interview was lengthy, was played to the jury, contained an emphatic denial of knowledge, and was described by the judge as evidence to be considered like other evidence. [16]–[18], [25]
It is also relevant where the defence did not request the direction at trial. Rule 4 was applied because there had been no application for the direction now relied on in the appeal. The judgment identifies the need for an appellant to establish a possible miscarriage when seeking leave to raise such a ground. [19], [26]–[27]
The verdict reasoning may be relevant where knowledge is inferred from a group of circumstances rather than established by direct evidence. In this case, the circumstances included the costly next-flight delivery, the destination, false contact details, and the thumbprint, alongside the accused's innocent explanation. [28]–[33] The judgment does not establish that those facts, separately or together, will prove knowledge in another case. It records that the jury could assess and reject the explanation on the evidence before it.
The precedent should not be read as eliminating the value of a silence direction, nor as treating every omission as harmless. Grove J expressly addressed the question by reference to the overall trial circumstances, and the judgment says Azzopardi regarded a warning as almost always desirable. [20], [25]
The supplied judgment is dated 1 April 2005 and does not cite any later decisions. It therefore cannot establish how later courts treated Regina v Graham.
The judgment does describe the authorities before it. Grove J said that Wilson had held Macris was wrong and should not be followed, and stated his continuing agreement with that conclusion. [21] He also referred to Richards and SMR for the proposition that Azzopardi did not make the direction mandatory in every case. [23]–[24] Those are authorities considered in Graham, not later treatment of Graham itself.
Howie J referred to an OGD warning and agreed with the view expressed in Wilson that such a direction is not normally required. He added his own view that it should not normally be given because it could invite an irrelevant inquiry. [36] The judgment records this as part of the Court's reasoning on the appeal, but does not supply any subsequent history.
A reliable account of subsequent treatment would require later judgments or legal sources, which are not included in the material provided here.
The judgment leaves open how the principles would apply where the accused's account is not before the jury in a recorded interview, where the interview is not treated as evidence in the same way as other evidence, or where the prosecution case depends on alleged gaps that jurors might fill by reference to the accused's silence. The Court's conclusion relied on the particular directions and evidence in Graham's trial. [17]–[18], [25]
It also does not prescribe the exact wording required for a silence direction in every case. It quoted the four-part Azzopardi passage but held that such a direction was not mandatory in every case. [20]–[25] The judgment leaves the assessment tied to the nature of the case and the risk that the jury may misuse the accused's silence.
The decision does not define a general threshold for when circumstantial evidence establishes knowledge of drugs. Its conclusion was that the evidence in this case was open to the jury, including the delivery arrangements, false details and thumbprint, considered with Graham's account. [28]–[34] It does not say how much weight must be given to any one of those facts in another case.
Finally, the judgment does not answer how later courts have interpreted or applied its reasoning. That question cannot be resolved from the supplied text alone.
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CITATION: Regina v Graham [2005] NSWCCA 127
JUDGMENT OF: Grove J at 1; Howie J at 36; Hall J at 37
CATCHWORDS: CRIMINAL LAW AND PROCEDURE - TRIAL - ACCUSED GIVES AND CALLS NO EVIDENCE - ESSENTIAL ISSUE OF KNOWLEDGE OF PRESENCE OF DRUGS IN DESPATCHED PACKAGE - DENIAL BY ACCUSED IN LENGTHY VIDEO INTERVIEW - FAVOURABLE DIRECTION TO ACCUSED THAT CONTENT OF VIDEO AVAILABLE TO JURY IN SAME WAY AS OTHER EVIDENCE - NO APPLICATION FOR DIRECTION OTHERWISE - NO MISCARRIAGE - RULE 4 APPLICABLE - VERDICT NOT UNREASONABLE
s12 Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Criminal Appeal Act 1912 s38 Evidence Act 1995
Azzopardi v The Queen 2001 205 CLR 50 R v Abusafiah 1991 24 NSWLR 531 R v Bozzola [2001] NSWCCA 8 R v Giri [2001] NSWCCA 197 R v Knight, unreported CCA 18 December 1990 R v Morris 2004 147 A Crim R 99 CASES CITED: R v OGD 1997 45 NSWLR 744 R v SMR [2002] NSWCCA 258 R v Prasad 1979 2 A Crim R 45 R v Richards 2002 128 A Crim R 204 R v Tripodina 1988 35 A Crim R 183 R v Wilson [2005] NSWCCA 20
P. Barrett (Crown) COUNSEL: H. Dhanji (Applicant)
S. Kavanagh (DPP) SOLICITORS: D. Anderson (Applicant)
IN THE COURT OF CRIMINAL APPEAL 2004/3312
GROVE J HOWIE J HALL J Friday 1 April 2005
1 GROVE J: Following trial before Taylor DCJ and a jury, the appellant was convicted on a single count of knowingly taking part in the supply of a prohibited drug, namely heroin. She was sentenced to imprisonment for one year and eight months with a non parole period of one year, such sentence being suspended for its term pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999. 2 The appellant appeals against conviction. Application for leave to appeal against sentence was abandoned. Two grounds of appeal are advanced, namely: 1. That the trial judge erred in failing to give proper directions as to the appellant's election not to give evidence. 2. The verdict of guilty is unreasonable and cannot be supported having regard to the evidence. 3 As his Honour succinctly pointed out to the jury in the course of his summing up there was really only one issue of contest at trial and that was whether the appellant knew that a package which she took to a courier service for delivery to Wagga Wagga contained a prohibited drug. 4 For some years the appellant had been in a defacto relationship with one Corey Franks. Although they ordinarily lived together at Burwood she had been staying with her mother who was ill. Franks travelled by car to Wagga Wagga with two men named Carland and Rogers for the purpose of attending a birthday party. The appellant was not present when they departed. 5 As a result of contact, the appellant, on 14 March 2003, attended at the Australian Air Express Office, Mascot, with a package containing a video which she consigned to Carland at a motel address in Wagga Wagga. She paid $151.40 for the package to be taken on the next flight departing from Mascot to that city. 6 In accordance with routine procedures the package was scanned and later inspected by Australian Air Express. Within the package were found a number of small bags, ultimately demonstrated to contain a total of 5.32 grams of heroin. 7 The delivery of the package was permitted to go forward. Under police surveillance it was delivered to Carland at the motel. Police then entered the motel room, the door to which was opened by Franks, and discovered Rogers and Carland also there. The package had been opened and the video cover and tape were lying on the floor of the unit. 8 The video in fact showed some activity of the appellant's son. Later examination detected her thumb print on the left hand corner of the tape. 9 On 18 March 2003 police left a message for the appellant in response to which her legal representative contacted them stating that she was willing to participate in a recorded interview. This took place at Burwood Police Station on 21 March 2003, after which she was charged. 10 In the record of interview she stated that she received a phone call from Franks on her mobile phone at about 4 pm on 14 March 2003. She was told that a birthday present had been left behind at Burwood and she was asked to pick it up. Rogers came onto the phone and gave instructions as to how to have it sent to Wagga Wagga. She said that Rogers told her it was a pornographic video package, and that she would need to tell the courier company what the content was. Franks told her that Rogers had provided him with money to reimburse her for the cost of despatching the parcel. 11 In the course of interview the appellant gave different details. She said that she received the phone call when she was at her mother's home but later stated that she was in the city where she had been with her mother during the day. At various times she said that she went to Burwood by bus or obtaining a lift from a friend named Julie. 12 She said that when she obtained the package it was wrapped in silver "Happy Birthday" paper and was sitting on a table in the lounge room. She caught a train from Burwood to Central Station. Franks had told her to take a taxi to the airport but she was concerned about having enough money to despatch the parcel and take a taxi and she did not think that she would be reimbursed for the latter cost. Her friend Julie gave her a lift to the airport. 13 Evidence showed that she attended the counter of the Mascot office of Australian Air Express between 5 and 6 pm, that is to say within a couple of hours of the phone call which she said she had received. 14 As is implicit in the first ground of appeal, the appellant did not give evidence at trial, nor did she call evidence. The Crown at her request called Corey Franks but was given leave to cross examine him pursuant to s 38 of the Evidence Act. 15 At the close of the case for the Crown (T147) counsel stated in the presence of the jury: "The accused will be relying on her record of interview and other evidence in the case as far as her case is concerned". 16 The interview was lengthy, containing over three hundred questions and answers. It was recorded on video tape and this was played to the jury. The appellant always denied knowledge of the presence of narcotics in the parcel. 17 Immediately following the remark of counsel quoted above, his Honour told the jury about the following steps in the trial and referring to counsel saying that he was not calling evidence, he told them: "I will make this clear to you in my summing up to you, but he having just made that remark, I will make the point now, that it is not for the accused to prove anything in the case. It is for the Crown to prove the case, to satisfy what I will identify to you as the essential ingredients of the case beyond reasonable doubt. The record of interview has been played for you and that is evidence in the case which you take into account in the same way as you evaluate any other evidence that you have heard." 18 The final sentence of his Honour's remarks did not qualify the content of the interview by referring to its hearsay nature or the absence of subjection to cross examination. To that extent, it was more favourable to the appellant than an application of her strict entitlement. 19 However, in the course of his summing up, the learned trial judge did not return to the absence of testimony from, or evidence on behalf of the appellant. This was not the subject of complaint or application by counsel appearing at trial. An affidavit by counsel states that the absence of seeking directions concerning the fact that the appellant did not give evidence was an oversight and not the result of a tactical decision. 20 His Honour gave firm and impeccable directions concerning the necessity for the Crown to discharge its onus of proof. However, counsel for the appellant, who did not appear at trial, relies upon the now oft quoted passage from the joint judgment in Azzopardi v The Queen 2001 205 CLR 50 viz: "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." 21 Counsel also sought to rely upon R v Macris 2004 147 A Crim R 99, where it was held, in effect, that it was erroneous in law to omit to incant all four of the elements of warning in the passage from Azzopardi above cited. In R v Wilson [2005] NSWCCA 20 the Court constituted by Hunt AJA, James J and myself, held that the decision in Macris was wrong and should not be followed. The leading judgment was given by Hunt AJA and I gave express reasons for my assent to his view about the incorrectness of Macris. I see no reason to alter my view in that regard. 22 In the present instance, there was no warning of the type postulated as being almost always desirable in Azzopardi. 23 A similar situation arose in R v Richards 2002 128 A Crim R 204, in which Levine J (Hodgson JA and Howie J agreeing) said of submissions similar to those now made: "As I have observed, it is now contended that the failure to give directions as they evolved in the course of submissions, now went to matters fundamental to, or at the root of, the trial. The first observation that can be made, in my view, is that even in Azzopardi the High Court cannot be taken to have ruled that in every case it is compulsory let alone desirable, in terms of the fundamental requirements of justice, for a direction of the kind now sought, to be given. Secondly, here this Court is concerned with the complete absence of directions. It must be borne in mind (though taking into account at each trial appeal will depend upon its own circumstances), that misdirections on matters said to be 'fundamental' neither necessarily nor as a matter of course can be characterized as going to the core of the trial or amounting to a fundamental defect: Azzopardi ; R v Bozzola [2001] NSWCCA 8; R v Giri [2001] NSWCCA 197". 24 It was also observed in R v SMR [2002] NSWCCA 258 by Carruthers AJ (Mason P and Hidden J agreeing) that Azzopardi did not state that a direction of the type under consideration was mandatory in every case. His Honour observed: "It is not every case in which counsel for the defence would necessarily consider that his or her client was well served by such a direction." 25 In the present case the appellant had before the jury a lengthy video taped interview in which she emphatically denied the issue contended against her by the Crown that she had knowledge of the presence of drugs in the package. As I have pointed out it was available to the jury without limitation as to its quality. Given the narrow issue of knowledge, the applicant already had the advantage of the invitation to treat her denial in the interview as evidence in the same category as the evidence in the case otherwise. In those circumstances I am unpersuaded that the absence of direction of the type now sought led to miscarriage of justice. 26 It is acknowledged that Criminal Appeal r 4 applies by reason of the absence of any application for his Honour to give the direction now canvassed. When leave is required under r 4 it is for the appellant to persuade the Court that miscarriage of justice may have occurred: R v Tripodina 1988 35 A Crim R 183. It is once again apt to repeat what was said by Hunt J in R v Abusafiah 1991 24 NSWLR 531: "The requirements of r 4 of the Criminal Appeal Rules do not constitute some mere technicality which may simply be brushed aside. One purpose of the requirement that no misdirection or non-direction may, without leave, be allowed as a ground of appeal unless objection was taken at the trial is to ensure that the trial judge receives the assistance from counsel to which he or she is entitled in the task of giving appropriate directions to the jury. If a summing-up contains some error which could easily have been cured once the judge's attention had been drawn to it, and if counsel for the accused to whose detriment the error operates fails to comply with his or her duty to draw the judge's attention to that error R v Knight (Court of Criminal Appeal, 18 December 1990, unreported at 46), any suggestion that such detriment automatically entitles the accused to a new trial does not strike a sympathetic chord in the hearts of those who see the right to a fair trial as operating in favour not only of the accused but also of the Crown, which prosecutes on behalf of the whole community. The Criminal Appeal Act 1912 does not exist to enable an accused who has been convicted under one set of issues to have a new trial under a new set of issues which he could and should have raised at the first trial." 27 I would refuse leave to rely upon ground 1. 28 It is recognized by the appellant that the sole issue is whether the evidence was sufficient for the jury to find that the appellant knew that the package contained a prohibited drug. It was contended by the appellant that the prosecution relied upon five basic circumstances:
(a) That the appellant took the parcel to Mascot and arranged for "next flight" delivery to Wagga Wagga. (b) That she paid $151.40 for delivery. (c) That the address supplied by the appellant on the consignment was not her address. (d) The mobile phone number supplied by the appellant on the consignment was not hers, and (e) The appellant's left thumb print was found on the video cassette. 29 The appellant had contended in her interview that the false addresses and telephone numbers were supplied by her to the freight forwarding courier in accordance with a request from Rogers. As the video in fact contained footage showing the appellant's son at school, there was a possible innocent explanation for her thumb print appearing on the video despite her claim that the package was wrapped in birthday paper at all times that it was in her possession. 30 Whilst such explanations were offered the Crown submits that the same circumstantial case put in other language demonstrates its strength. The case can be summarized as follows: "The appellant sent a package containing a video tape packed with a prohibited drug via overnight air express to her boyfriend who had travelled to and was then in Wagga Wagga. The appellant admitted to travelling, with some difficulty, in that she did not possess a vehicle, from her mother's home to her boyfriend's residence (her usual home) to collect the video tape, which was wrapped in gift paper. From there she travelled, via a friend's house, to Mascot to an air freight office and there arranged, at great expense, for the video tape, which she claims she believed to be a pornographic tape, for the tape to be air freighted on the next available flight to the place where her boyfriend was staying. This was said by her to have been embarked upon at the request of a friend of her boyfriend, notwithstanding that it would have meant that she would have been virtually without funds after using virtually all her own available cash to send the tape. She gave a false address and a false mobile telephone number to the freight forwarder when she arranged the delivery". 31 I recognize that the witness called by the prosecution to give evidence concerning the thumb print, accepted that it could have been there for some time. Nevertheless, I am unpersuaded that it was not open for a jury to reject the innocent explanation for the difficult and expensive foray which was, as the time frame shows, conducted with what might reasonably be viewed as a matter of some urgency. His Honour's comment to counsel in the absence of the jury that it was a strong circumstantial case was plainly correct. 32 It is noteworthy that in the absence of the jury just prior to the close formally of the prosecution case, counsel at trial did not submit that there was insufficient evidence fit to be considered by the jury but rather that the jury might be invited to consider bringing in a verdict of acquittal upon the close of the Crown case: R v Prasad 1979 2 A Crim R 45. 33 This is not a case where disbelief of the appellant's version left the Crown case unproved. At the very least it was open to them to reject the explanation of the appearance of the thumb print on the video which necessarily carried with it a knowledge by the appellant of the content of the parcel which the appellant had claimed to have only seen already wrapped in "Happy Birthday" paper. 34 I would reject ground 2. 35 I propose that the appeal against conviction be dismissed. 36 HOWIE J: I agree. Insofar as counsel for the appellant argued that an OGD warning or direction was required, I wish to express my respectful agreement with the view expressed by Hunt AJA in Wilson at 14 that such a direction is not normally required. I would go further and indicate my view that such a direction should not normally be given. It may have the tendency to lead the jury to consider what reasons the accused might have had for not giving evidence whereas in the usual case such an enquiry is completely irrelevant. Otherwise I agree with the reasons and the orders proposed by the presiding judge. 37 HALL J: I agree with the reasons and the orders proposed by the presiding judge. 38 GROVE J: The order of the Court therefore is the appeal against conviction is dismissed.
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Regina
Graham
Appeal against conviction dismissed. Leave to rely on ground 1 was refused; ground 2 was rejected. [27], [34]–[38]