There was no complaint by counsel appearing for the appellant at the trial as to the adequacy of these directions.
8 There was no direct evidence that the appellant inflicted these injuries on the child, the Crown case being a circumstantial one based on the facts that the injuries causing death indicated that the child had been shaken, that they were inflicted shortly before death and that only the appellant was present in the room with the young child at the relevant time. A necessary implication of the version which the appellant gave to the police when interviewed was that, if the cause of death was the result of human intervention, she was the only person who could have inflicted the injuries at the relevant time. The appellant had also told another witness (a patient of the local doctor) that the child's five year old sister was in another room at the time. There was no-one else in the house.
9 In the course of directing the jury in relation to the need to be satisfied beyond reasonable doubt that the only rational explanation of these circumstances was the guilt of the appellant, the trial judge made it clear that the prosecution bore the onus of proving her guilt beyond reasonable doubt and that it was not for the appellant to prove her innocence "or, indeed, to prove anything at all".
10 The appellant's argument is that the judge failed to direct the jury in accordance with the judgment of four justices in Azzopardi v The Queen (2001) 205 CLR 50 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.
11 It is conceded by the appellant that the judge's directions satisfied the first two ingredients of that direction, but not the second two ingredients - that the absence of evidence from an accused may not be used to fill gaps in the evidence tendered by the Crown, and may not be used as a make-weight in assessing whether the Crown has proved its case beyond reasonable doubt. The appellant submits that the failure by the judge to direct the jury in the terms of the two missing ingredients led to "a significant possibility of a real injustice".
12 Before dealing with the appellant's arguments, it is important to emphasise that nothing which the judge said to the jury could reasonably have been construed by the jury as suggesting that the fact that the appellant had not given evidence could be used by them to accept the Crown case more readily, or to infer that her evidence would not have assisted her case (Jones v Dunkel (1959) 101 CLR 298 at 308, 312, 320-321), or that she was, or that she believed that she was, guilty of the offence charged (Evidence Act 1995, s 20(2)). Indeed, the judge was at pains to deny the availability of any such inferences, and to ensure that the jury was obliged to take into account her statements to the police and other witnesses and which could assist her case. Of course, even in civil cases the rule in Jones v Dunkel did not permit an inference that the untendered evidence would in fact have been damaging to the party who could have tendered it or to fill gaps in the evidence: Jones v Dunkel at 308, 312, 320-321; Bridge v The Queen (1994) 118 CLR 600 at 615; Weissensteiner v The Queen (1993) 178 CLR 217 at 227, 235.
13 It is also convenient at this stage to note another matter. The relevant passage in the summing up does not include the warning, said to have been "ordinarily necessary" in Regina v OGD (1997) 45 NSWLR 744 at 751), that there may be reasons unknown to the jury why an accused person remains silent, even if otherwise in a position to contradict or explain evidence. The phrase "ordinarily necessary" was said by this Court in Regina v Bargwan (CCA, 15 June 1998, unreported) to mean that it is only in extraordinary circumstances that such a warning should not be given. The implied criticism of the OGD judgment by the High Court in RPS v The Queen (2000) 199 CLR 620 at [30] related only to any interpretation of it as authorising a Jones v Dunkel direction in any case where the accused has not given evidence. It was in that sense that it was said that OGD should be overruled; it did not relate to what has become known as an OGD warning, that there may be many reasons unknown to the jury why an accused remains silent. I interpret the agreement by Callinan J (at [110]) with what had been said by four justices at [30] in the same way. There is no complaint in the present appeal that the warning was not given at the appellant's trial.
14 It is significant that the joint judgment in the Azzopardi case did not include an OGD warning in the warning which is now "almost always…desirable", notwithstanding that the trial judge in the Azzopardi case had directed the jury, in a passage quoted in the joint judgment (at [71], p 76), that "[t]here may be many reasons why an accused person may decide not to give evidence". In Regina v Nguyen [2002] NSWCCA 342 at [52], this Court said that it was not persuaded that it was still necessary to give the warning formulated in the OGD case where the warnings in the Azzopardi case have been given, provided that there has been no Jones v Dunkel direction given. That is clearly correct, as the OGD direction was designed to balance a Jones v Dunkel direction that a failure by the accused to contradict or explain incriminating evidence, in circumstances where it would be reasonable to expect him to do so, may make it easier for the jury to accept, or to draw inferences from, the evidence on which the Crown relies. An OGD direction is therefore only necessary where such a suggestion has been made.
15 With those matters put to one side, I turn now to consider the complaint which the appellant has made in her appeal. The High Court in Azzopardi's case did not make it compulsory to give the suggested direction to be given in every case, or even in almost every case. Unlike the judgment in (for example) Dominican v The Queen (1992) 173 CLR 555 at 561-562, which laid down "special rules in relation to the directions which judges must give in criminal trials where identification is a significant issue", the majority judgment in the Azzopardi case very carefully said only that it will "almost always be desirable" for the warning to be given where there is no evidence from the accused. (I have added the emphasis in both cases.) In my view, the difference is important - particularly where, as in the present case, no complaint was made by counsel for the appellant at the trial.
16 This is the approach which has been adopted by this Court in most of the cases in which the Azzopardi case has been considered. In Regina v Richards [2002] NSWCCA 38 at [29], it was said that the Azzopardi case cannot be taken to have ruled that it is compulsory, let alone desirable, for the warning to be given in every case. In Regina v SMR [2002] NSWCCA 258 at [105], it was said that the Azzopardi case did not state that it was mandatory in every case, and that some element of discretion was left to the trial judge. In Regina v Park [2003] NSWCCA 203 at [94], it was noted that the warning was not universally required, though "desirable". In that case, too, no complaint had been made at the trial, and leave to rely on its absence on appeal pursuant to r 4 of the Criminal Appeal Rules was refused. An application to the High Court for special leave to appeal from the judgment was dismissed (12 October 2004). In most of the cases in which appeals had been dismissed notwithstanding the absence of a direction which satisfied every one of the four ingredients of the Azzopardi direction, directions had been given which satisfied the first two ingredients but not the second two ingredients - as in the present case.
17 There is, however, one decision of this Court in which a very different approach was adopted. It formed the principal basis of the appellant's argument in the present case. In Regina v Macris [2004] NSWCCA 261, the trial judge answered a jury's question as to why the accused had not given evidence by saying that the accused was entitled to put the Crown to proof, that he had the right not to give evidence and that no inference could be drawn against him for exercising that right. The judge elaborated that statement during the summing-up, adding that the accused had acted in accordance with legal advice. No complaint was made at the trial as to the adequacy of those directions. On appeal, the appellant complained of the judge's failure to give directions in accordance with both the Azzopardi and the OGD cases.
18 This Court held that, as no Jones v Dunkel direction had been given, it was (in accordance with the Nguyen case) unnecessary to give an OGD direction provided that an Azzopardi direction was given. However, the Azzopardi direction given did not include its last two ingredients, warning the jury that the fact the accused had not given evidence may not be used by it to fill gaps in the Crown evidence and may not be used by them as a make-weight in assessing whether the Crown had proved its case beyond reasonable doubt. The Court stated (at [29]) that, although the Azzopardi case does admit of cases where a direction in its terms may not be necessary, there was "nothing in the facts of this case which would make such a direction inappropriate". The Court held (at [31]) that, as the error "gives rise to the possibility of a real injustice being occasioned to the appellant", leave to rely on the ground of appeal was granted and the appeal was upheld on that ground. No reference was made to the approach which had been taken in the earlier cases. With the greatest respect to the members of the Court in that case, such an approach is inconsistent with authority.
19 Rule 4 of the Criminal Appeal Rules provides, inter alia, that no direction or omission to give a direction at the trial shall, without the leave of this Court, be allowed as a ground of appeal unless objection was taken at the trial to the direction or omission by the appellant. In order to obtain such leave, an appellant must first establish at least an arguable case of error - in this case, that there was a misdirection. The issue which arose in that appeal, and which arises in the present appeal, is therefore whether it was "desirable" for the Azzopardi direction (or any ingredient of it) to be given in the particular case, but there was no examination in that appeal of why it was "desirable" for the two missing elements of the Azzopardi direction to be given in that case. That it was "desirable" in that case is not established by demonstrating merely that there was "nothing in the facts of [his] case which would make such a direction inappropriate". (I have added the emphasis.)
20 Next, leave to rely on an error where no point was taken at the trial will be granted only where the appellant can demonstrate that the error led to a miscarriage of justice: Regina v O'Brien (1920) 20 SR 486 at 490; Regina v Branscombe (1921) 21 SR 363 at 367, 378 (the third member of the Court said [at 372] that only under the most exceptional circumstances would an appellant be permitted to rely on a point not taken at the trial when he had been legally represented there); the High Court refused special leave to appeal, (1921) 29 CLR 602; Regina v Malas (1978) 21 ALR 225 at 232; Regina v Abusafiah (1991) 25 NSWLR 531 at 536. In Regina v Tripodina (1988) 35 A Crim R 183 at 195, this Court stated an even more onerous test for the grant of leave to rely on a point not taken at the trial, that leave will generally only be granted where an irregularity has occurred which is such a departure from the essential requirements of law that it went to the root of the proceedings. However, the usual test for compliance with r 4 is that the appellant must demonstrate that the error led to a miscarriage of justice.
21 There is a miscarriage of justice where, by reason of the error made, the accused may have lost a chance fairly open to him of being acquitted: Mraz v The Queen (1955) 93 CLR 493 at 514. In the Macris case, the appellant had to show (as does the appellant in the present case) that the absence of the direction in question led to the loss of such a chance of being acquitted. This is the approach which has been adopted by this Court in cases in which the Azzopardi case has been considered and the appeal dismissed: see, for example Regina v Burns [2003] NSWCCA 30 at [50]. See also Regina v Le [2003] SASC 2 at [30]. No reference was made to this approach in the Macris judgment, and the basis upon which the Court was satisfied that the absence of the relevant direction in that case led to a miscarriage of justice was not identified.
22 In my respectful opinion, the decision in Regina v Macris was wrong, and it should not be followed.
23 It seems necessary once more to make it clear that the Criminal Appeal Act 1912 does not exist to enable an accused who has been convicted in accordance with directions to which no objection has been taken to have a new trial in accordance with different directions which he could and should have raised at his first trial, unless the directions given have led to a miscarriage of justice. The trial in the present case took place long after the decision of the High Court in the Azzopardi case, and no argument is available that the rules by which it should have been conducted had been changed since the trial.
24 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 of counsel to which he or she is entitled in the increasingly difficult 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, if counsel for the accused to whose detriment the error operates fails to comply with his or her duty to draw the error to the judge's attention, and if the error has caused no miscarriage of justice, it can hardly be called appropriate to permit an appellant to seek a new trial on the basis of that error in the hope that he may do better with a different jury. The right to a fair trial operates not only in favour of the accused; the Crown which prosecutes on behalf of the whole community also has a right to a fair trial. These statements have been made by this Court in many cases: see, for example: Regina v Abusafiah (1991) 24 NSWLR 531 at 536; Regina v Jeffrey (Court of Criminal Appeal, 16 December 1993) at pp 6-7; Regina v Sanderson (Court of Criminal Appeal, 18 July 1994) at pp 7-8; Regina v Steeden (Court of Criminal Appeal, 19 August 1994) at 6; ; Regina v Mahoney (2000) 114 A Crim R 130 at [15] - [16]; Regina v DH [2000] NSWCCA 360 at [115]; Regina v Fuge [2001] NSWCCA 208 at [40] - [45] (the case reported on other matters at (2001) 123 A Crim R 310); Regina v Button [2002] NSWCCA 195 at [31] - [35] (the case is reported on other matters at (2002) 54 NSWLR 455). See also Papakosmas v The Queen (1999) 196 CLR 297 at 319.
25 It has never been suggested that, where it becomes "desirable" in the particular case to give only the first two ingredients of the Azzopardi direction, the failure to give a ritual incantation of the whole direction is an error giving rise to a miscarriage of justice. In my view, the joint judgment in the Azzopardi case should not be interpreted as leading to such a consequence. Was it "desirable" then for the whole Azzopardi direction to be given in the present case? And did the absence of the second two ingredients of that direction lead to the loss of any chance fairly open to the appellant of acquittal or to some other miscarriage of justice?
26 The summing up contained the following warnings in relation to the fact that the appellant had not given evidence -
she did not have to give evidence; she had the right to do so or to choose not to, and
no inference of guilt could be drawn from the absence of any evidence from her; she had not admitted or confessed anything by declining to give evidence.
Those directions sufficiently satisfied the first two ingredients of the Azzopardi direction - that the silence of the accused in court is not evidence against the accused and does not constitute an admission by the accused. As I have already said, this was conceded by the appellant.
27 The third and fourth ingredients of the Azzopardi direction are that the silence of the accused in court -
(3) may not be used to fill gaps in the evidence tendered by the prosecution, and
(4) may not be used as a make-weight in assessing whether the prosecution has proved its case beyond reasonable doubt.
Counsel for the appellant argued that these missing directions should have been given because of the conflict between the medical evidence presented by the prosecutor and that presented by the appellant. This submission was not elaborated. In my view, it has not been made out.
28 Although the jury were instructed in very general terms that a doctor forms an opinion based in part on the history which has been supplied, it is clear from the medical evidence presented by both parties that, in this case, the opinions expressed by the doctors were based only on the examinations they conducted on the body of the deceased child (or, in some cases, on the examination by other doctors on that body). There was, the judge told the jury, nothing at all in any of the histories about the baby being shaken.
29 The medical evidence supporting the Crown case that human intervention had caused the death of the child was very strong. On the version given to the police by the appellant herself, there was no reasonable possibility that any person other than the appellant was in a position to touch the child at the relevant time. The medical evidence supporting the case for the appellant that there was a reasonable possibility that the child died from various natural causes was largely speculative, diffuse and in some respects contradictory. The submissions that the two missing ingredients from the Azzopardi direction would have (a) strengthened the weight to be afforded to the statements the appellant made to the police and other witnesses in her favour, and (b) provided the appellant with a chance fairly open to her of acquittal on that basis, should be rejected.
30 A more sustained argument was that - as the judge had instructed the jury that the hearsay evidence of the statements the appellant made to the police and other witnesses was not on oath or affirmation or subjected to cross-examination, and not evidence in the same sense as the evidence that had been given in court by witnesses - the missing ingredients would have balanced the effect of that instruction. This, it was suggested, was because the jury may reasonably have been persuaded by those missing ingredients to give her hearsay denial of mistreating the child greater weight than the direction given would have suggested to the jury.
31 The only "gap" in the Crown case was the absence of any direct evidence or admission that the child had been shaken and that it was the appellant who had shaken him. That had to be inferred from the nature of the injuries to the child, and the fact that those injuries were inflicted shortly before death when the appellant was the only person present in the room with the child at the relevant time. It was therefore certainly "desirable" in the present case to ensure that the jury did not treat the appellant's silence in court as an admission that she was the person who had shaken the child.
32 The jury were not faced with total silence on the part of the appellant. They had had played to them her two interviews by the police. What is left is the fact that she had not given evidence supporting her statements to the police and been tested in cross-examination. The judge did direct the jury that no inference of guilt could be drawn from the appellant declining to give evidence. Her argument is that this direction did not deal specifically with the weight to be given to the statements made to the police, and that directions which included the two missing ingredients would have been effective to do so.
33 I do not myself interpret the two missing ingredients from the Azzopardi direction in this case as being concerned with the weight to be given to hearsay statements favouring the accused which have been tendered in evidence. Nor do I understand their purpose to be to balance the jury's knowledge that hearsay statements made by an accused which favour his case are not evidence in the same sense as evidence given by witnesses in court. The reference to a "make-weight" in the last ingredient should not be confused with issues of the weight to be afforded to material in the case. A make-weight is no more than something placed in the scales to make up a required weight.
34 Both of the missing ingredients seem to me to be primarily directed to preventing the jury from reasoning that, if the accused had any answer to the Crown case, or to a particular part of the Crown case, he would have given evidence of that answer, and that he did not give evidence because he would himself have either filled any gaps in the Crown case or in some other way added to its weight. Yet the second of the directions which were given in this particular case (that no inference of guilt could be drawn from the absence of any evidence from the appellant, and that she had not admitted or confessed anything by declining to give evidence) - which is within the spirit of s 20(2) of the Evidence Act, and which in my view covers the same ground as the missing ingredients - adequately fulfils the purpose of those two ingredients.
35 Whilst the trial would not have suffered had the whole Azzopardi direction been given, I do not accept that it was "desirable" for the missing ingredients to have been included in the terms expressed by the joint judgment in the directions given in this case. The absence of the missing ingredients in those terms would not have led to the loss of any chance fairly open to the appellant of acquittal or to any other miscarriage of justice. Accordingly, I propose that leave to rely on the ground of appeal be refused and that the appeal against conviction be dismissed.
36 There is one further matter relating to the conviction appeal to which reference should be made. No complaint was made of the direction given by the judge that the appellant's hearsay statements to the police and other witnesses were not on oath or affirmation or subjected to cross-examination, and were not evidence in the same sense as the evidence which had been given in court by witnesses. This direction was in much the same terms as the direction which appellate courts had permitted in relation to an unsworn statement by the accused at the time when trial judges were not permitted to comment upon the failure of the accused to give evidence. Such a direction is still permitted by ss 165(1)(a) of the Evidence Act in relation to hearsay evidence where the judge is requested by a party to give it. Section 165(2) requires the judge when giving the direction to: