Awad v The Queen

The High Court of Australia heard appeals from Mr Awad and Mr Tambakakis, who had been convicted in the County Court of Victoria of attempting to possess a commercial quantity of an unlawfully imported border-controlled drug. The appeals concerned a misdirection given by the trial judge to the jury regarding the reasons why Mr Tambakakis, one of the appellants, had chosen to give evidence in his defence. This direction was alleged to be contrary to section 44J of the *Jury Directions Act 2015* (Vic).

The central legal issue before the High Court was whether the trial judge's misdirection constituted a substantial miscarriage of justice, thereby warranting the allowance of the appeals against conviction. Specifically, the court had to determine if the prohibited direction, which suggested that an innocent person can do nothing more than give evidence while a guilty person might do so in the hope of being believed, had the capacity to improperly influence the jury's assessment of Mr Tambakakis' credibility and, consequently, the outcome of the trials.

The High Court reasoned that the misdirection, prohibited by s 44J(b) of the *Jury Directions Act 2015* (Vic), had the potential to deflect the jury from its fundamental task of assessing evidence. Given the critical importance of Mr Tambakakis' credibility to both trials, the prohibited direction was capable of affecting the result. The Court found that the Court of Appeal had erred in not considering the whole of the record, including the issues surrounding Mr Tambakakis' credibility and the inherent limitations of an appellate court in assessing witness demeanour. Consequently, the High Court concluded that a substantial miscarriage of justice had occurred.

In each matter, the High Court allowed the appeal, set aside the orders of the Court of Appeal dismissing the appeals against conviction, and ordered that the convictions be set aside and that there be a new trial.