Azzopardi v R

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: Gleeson CJ,Gaudron,Gummow,Kirby,Hayne JJ,McHugh J,Callinan J
• Judgment Date: 03 May 2001
• Neutral Citation: [2001] HCA 25,2001-0503 HCA A
• Docket Number: S105/2000
• Date: 03 May 2001

[2001] HCA 25

HIGH COURT OF AUSTRALIA

Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ

S105/2000

S39/2000

Joseph Azzopardi

Appellant

and

The Queen

Respondent

Brian Davis

Applicant

and

The Queen

Respondent

Representation:

P Byrne SC with J W Fliece and G A Bashir for the appellant (instructed by Patricia White & Associates)

R D Ellis with R A Hulme for the respondent (instructed by S E O'Connor, Director of Public Prosecutions (New South Wales))

Evidence Act 1995 (NSW), s 20(2).

Azzopardi v The Queen Davis v The Queen

Criminal law — Evidence — Accused not giving evidence — Right to silence — Distinction between comment and direction by trial judge — Circumstances where comment permissible.

Criminal law — Evidence — Accused not giving evidence — Right to silence — Nature of permissible comment by trial judge — Comment that accused did not deny or contradict evidence already given about matters within his personal knowledge not permissible — Suggestion that accused did not give evidence because the accused was, or believed that he was, guilty of the offence concerned — Contravention of Evidence Act 1995 (NSW), s 20(2).

Evidence — Criminal trial — Right to silence of accused — Comment by judge — Contravention of Evidence Act 1995 (NSW), s 20(2).

ORDER

1. Appeal allowed.

2. Set aside the orders of the Court of Criminal Appeal of New South Wales dated 1 October 1998 and in lieu thereof order that:

• a) the appellant's appeal to that Court be allowed;

• b) the appellant's conviction be set aside; and

• c) there be a new trial.

1 Gleeson CJ. These two cases concern instructions given to juries at criminal trials in New South Wales as to the significance that may properly be attached to the failure of an accused person to deny or explain inculpatory evidence relied upon by the prosecution. It is for the jury to evaluate the evidence at a trial. But juries often require, and sometimes expressly seek, guidance as to the significance of an accused's failure to give evidence, or failure, when giving evidence, to deal with some matter 1. In deciding what guidance is proper, a trial judge, or an appellate court reviewing a trial judge's summing-up, must have regard both to general principles and to relevant statutory provisions. Here, the general principles concern the onus of proof, the presumption of innocence, and the evaluation of evidence. The relevant statutory provision is s 20 of the Evidence Act 1995 (NSW) (‘the Evidence Act’).

2 The operation of the general principles have a significance which goes beyond trial by jury. In New South Wales, and other Australian jurisdictions, trials for indictable offences are not infrequently conducted by a judge sitting without a jury. Summary offences are tried by magistrates sitting without a jury. In such cases, the reasoning of the judge, or magistrate, is constrained by the same principles as govern the deliberations of a jury. Similarly, an appellate court when considering an argument that a jury, acting reasonably, must have entertained a reasonable doubt as to the guilt of an appellant, or which is considering the application of the proviso in a case where there has been a misdirection, may need to form a view as to the significance of an accused's silence, either generally, or upon some particular topic.

3 The general principles were addressed by this Court in Weissensteiner v The Queen2. In that case, five Justices 3 quoted with approval the following passage from the judgment of Windeyer J in Bridge v The Queen4:

‘An accused person is never required to prove his innocence: his silence can never displace the onus that is on the prosecution to prove his guilt beyond reasonable doubt. A failure to offer an explanation does not of itself prove anything. Nor does it, in any strict sense, corroborate other evidence. But the failure of an accused person to contradict on oath evidence that to his knowledge must be true or untrue can logically be regarded as increasing the probability that it is true. That is to say a

failure to deny or explain may make evidence more convincing, but it does not supply its deficiencies. A direction by the judge on such matters … might no doubt be helpful to the accused in some cases.’

4 The point may be illustrated by a variation of an example given by Lamer CJ in R v Noble5. Suppose an accused is charged with robbing a bank. The prosecution case includes a video surveillance photograph of a masked man pointing a rifle at a bank teller. So far as can be seen, his appearance generally matches that of the accused. The masked man's forearms are bare, and on his left arm there is a distinctive tattoo. The prosecution calls a witness who says that the accused has such a tattoo. In the context of the case, that is a vital piece of evidence. The accused gives no evidence. Is the failure of the accused to deny that he has a tattoo a matter that can be taken into account in considering the weight to be attached to the evidence of the witness? The majority in the present case would say no, on at least two grounds. The first is that the presence or absence of the tattoo is not a matter peculiarly within the accused's knowledge. (That may be accepted as a factual proposition. A man who is the sole possessor of knowledge as to whether he has a tattoo on his arm must have led a very solitary life.) The second is that what is missing is not evidence of some additional fact which explains, or nullifies the effect of, evidence adduced by the prosecution, but testimonial contradiction. As will appear, I am unable to agree.

5 Most jurors know that an accused person has a right to testify, and they are often invited by trial judges to use their common sense. In Bridge6, Windeyer J quoted what Frankfurter J said in Adamson v California7:

‘Sensible and just-minded men, in important affairs of life, deem it significant that a man remains silent when confronted with serious and responsible evidence against himself which it is within his power to contradict.’

6 The subject is sometimes discussed as an aspect of an accused person's right of silence. In truth, however, it arose as an incident of an accused person's right to testify; a right which did not exist in any Australian jurisdiction until 1882 8, and which did not exist in New South Wales until it was conferred by legislation in 1891 9.

7 The right of silence is not, in this country, a constitutional or legal principle of immutable content. Rather, it is a convenient description of a collection of principles and rules: some substantive, and some procedural; some of long standing, and some of recent origin. Lord Mustill said that the expression ‘refers to a disparate group of immunities, which differ in nature, origin, incidence and importance, and also as to the extent to which they have already been encroached upon by statute’ 10. The particular aspect of the right of silence of present concern is the immunity of an accused person undergoing trial from being compelled to give evidence. This is only one of a number of immunities which enable a person suspected or accused of crime to remain silent. But, as was pointed out in Weissensteiner11, to say that a person may choose to remain silent is not to say that the exercise of that choice is necessarily free from adverse consequences. This is why a reference to the immunity as a right sometimes carries an overtone which is unwarranted, both as a matter of history and as a matter of legal principle.

8 What a person, suspected or accused of crime, says, or fails to say, at various stages of the process of investigation or trial, may have a number of consequences. What such a person says to his or her lawyer may affect the manner in which the lawyer, consistently with professional responsibilities, conducts the defence. The way in which a person responds to police questioning may have significance at a trial. Whenever an accused person makes a response to an accusation, other than a bare denial of guilt, it is likely that, at the least, the issues will narrow. An accused person who has given an account of what happened may thereby have relieved the prosecution of the need to call evidence of facts that might otherwise have been in issue, and that might otherwise have been difficult to prove. One of the most common tactical decisions that has to be made at a criminal trial is whether to rest on perceived weaknesses in the prosecution case, or to advance a positive defence case. When the latter choice is made, the weaknesses in the prosecution case may disappear, or become immaterial. When the former choice is made, there may be no opportunity to rely upon a meritorious defence. Whether the decision is to speak or remain silent, it is rarely devoid of consequences.

9 When, in the late nineteenth century, legislatures decreed that people accused of crime should have the capacity to testify in their own defence, it was well understood that this would bring some consequences that were potentially unfavourable to some accused persons. This understanding is reflected in the reasoning of the various judges in R v Kops12, a case decided soon after the 1891

New South Wales legislation. There was a well-founded apprehension that, when juries became aware that an accused person was entitled to testify, there would, in some cases, be a practical compulsion to do so. A practical compulsion to testify frequently arises from circumstances that have nothing to do with the problem now under consideration. It may arise from the facts of a particular case, or the nature of an accused person's defence. It may arise because of the accidental unavailability of a witness who could give evidence of some fact important to the defence case. The existence of a practical compulsion to testify is not inconsistent with the...