GLEESON CJ, GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ
JOSEPH AZZOPARDI APPELLANT
AND
THE QUEEN RESPONDENT
Azzopardi v The Queen [2001] HCA 25 3 May 2001
S105/2000
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.
On appeal from the Supreme Court of New South Wales
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))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
HIGH COURT OF AUSTRALIA
GLEESON CJ, GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ
BRIAN DAVIS APPLICANT
AND
THE QUEEN RESPONDENT
Davis v The Queen 3 May 2001 S39/2000
ORDER
Application for special leave to appeal refused.
On appeal from the Supreme Court of New South Wales
Representation:
T A Game SC with S J Odgers SC for the applicant (instructed by Legal Aid Commission of New South Wales)
R D Ellis with R A Hulme for the respondent (instructed by S E O'Connor, Director of Public Prosecutions (New South Wales))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
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 Act1995 (NSW), s 20(2).
Evidence – Criminal trial – Right to silence of accused – Comment by judge – Contravention of Evidence Act1995 (NSW), s 20(2).
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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Azzopardi v the Queen [2001] HCA 25
Case
[2001] HCA 25
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by Mr. Azzopardi against his conviction. The central dispute concerned the nature and permissibility of comments made by a trial judge regarding the appellant's failure to give evidence during his criminal trial.
The legal issues before the High Court were whether the trial judge's comments, in light of section 20(2) of the *Evidence Act 1995* (NSW), improperly suggested that the appellant's silence was indicative of guilt, thereby contravening the appellant's right to silence. The court was required to interpret the scope of section 20(2), particularly the meaning of "suggest" in relation to a judge's comments on an accused's failure to testify.
The High Court reasoned that section 20(2) of the *Evidence Act 1995* (NSW) prohibits a judge from suggesting that an accused failed to give evidence because they were, or believed themselves to be, guilty of the offence charged. The court held that the prohibition against such suggestions should be given its full operation and not be narrowly construed. While acknowledging that there may be circumstances where an accused's failure to explain matters peculiarly within their knowledge could permit comment, the court cautioned that such comments carry significant risks of error and blurring the distinct functions of judge and jury. The prosecution is denied the argument that silence implies guilt, and therefore, the judge should not be permitted to make such a suggestion.
The appeal was allowed, the orders of the Court of Criminal Appeal of New South Wales were set aside, and the appellant's conviction was quashed. A new trial was ordered.
Orders
Orders of the court
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.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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. Unnecessary or extensive comments on the facts carry well‑recognised risks of misstatements or other errors and of blurring the respective functions of the judge and the jury.Evidence Act 1995 Section 20(2) of the Evidence Act falls for consideration against this background. It is a section which regulates comments by the judge and by the prosecution. The prosecution may say nothing about the fact that the accused did not give evidence. That being so, it would indeed be surprising if s 20(2) were to be given a construction which would permit the judge to point out to the jury that the failure of the accused to give evidence is an argument in favour of the conclusion for which the prosecution contends. If the prosecution is denied the argument, why should the judge be permitted to make it? The effect of the sub‑section is that the judge, the accused and any co‑accused may comment on the fact that the accused did not give evidence, but the judge may not, by that comment, "suggest" that the accused failed to give evidence because he or she was guilty, or believed that he or she was guilty, of the offence charged. It is very improbable that the accused would ever wish to make such a suggestion. That a co‑accused may do so is hardly surprising. If only one of two accused persons gives evidence at their joint trial, it is inevitable that the accused who has given evidence will want to urge the jury to contrast that with the course taken by the other accused. It is well‑nigh inevitable that in urging that the evidence given by the accused demonstrates innocence, the suggestion will be made, explicitly or implicitly, that the co‑accused stayed silent because, unlike the accused who did give evidence, he or she was guilty. It is right to note that s 20(2) deals only with an accused not giving evidence at all and does not deal with the case of some failure by an accused who does give evidence to deal with a particular topic. That this is so is not surprising. If a topic is important, it will be explored in cross‑examination of the accused. If it is not, it may be assumed that the topic is not important to the issues at trial. "Suggest" is a word of very wide application. It was held in RPS that the prohibition in s 20(2) should be given no narrow construction, that "s 20(2) requires a line to be drawn and it should be drawn in a way that gives the prohibition against suggesting particular reasons for not giving evidence its full operation."[44] If s 20(2) is not interpreted in that way, the opportunity to exculpate has become an obligation to self‑incriminate[45].RPS and Weissensteiner[44](2000) 199 CLR 620 at 630 [20] per Gaudron ACJ, Gummow, Kirby and Hayne JJ, 655‑656 [108]-[109] per Callinan J.[45]R v Kops (1893) 14 LR (NSW) 150 at 190 per Innes J.
Decision
Reasons for decision
GLEESON CJ
GAUDRON, GUMMOW, KIRBY AND HAYNE JJ
(dissent)
HUGH J
(dissent)
CALLINAN J
(dissent)