GBF v The Queen

Case [2020] HCA 40


HIGH COURT OF AUSTRALIA

KIEFEL CJ,

BELL, KEANE, GORDON AND EDELMAN JJ

GBF    APPELLANT

AND

THE QUEEN            RESPONDENT

GBF v The Queen

[2020] HCA 40

Date of Hearing: 10 September 2020

Date of Judgment: 4 November 2020

B18/2020

ORDER

1.        Appeal allowed.

2.        Set aside the orders of the Court of Appeal of the Supreme Court of Queensland made on 1 February 2019 and, in lieu thereof, order that the appeal to that Court be allowed and the appellant's convictions be set aside and a new trial be had.

On appeal from the Supreme Court of Queensland

Representation

S C Holt QC with M J Jackson for the appellant (instructed by Legal Aid Queensland)

C W Heaton QC with C N Marco for the respondent (instructed by Office of the Director of Public Prosecutions (Qld))

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

GBF v The Queen

Criminal practice – Trial – Directions to jury – Where appellant charged in seven counts with sexual offences allegedly committed against complainant half-sister when she was 13 and 14 years old – Where prosecution case wholly dependent on acceptance of complainant's evidence – Where appellant did not give or call evidence at trial – Where trial judge directed jury in unexceptional terms with respect to presumption of innocence and onus and standard of proof – Where trial judge later stated that failure of appellant to give sworn evidence "may make it easier" to assess complainant's credibility ("impugned statement") – Where neither prosecutor nor defence counsel applied for redirection arising from making of impugned statement – Whether impugned statement occasioned miscarriage of justice because its effect was to invite jury to reason to appellant's guilt from his exercise of right to silence – Whether influence of impugned statement weakened because it was comment not direction of law – Whether failure of either counsel to seek redirection weighed against conclusion that integrity of trial compromised – Whether impugned statement ambiguous such that there was no reasonable possibility jury would have felt it open to reason impermissibly.

Words and phrases – "absence of evidence", "contradictory instruction", "directions of law", "exercise of the right to silence", "false process of reasoning", "irregularity", "judicial observation on the facts", "miscarriage of justice", "onus of proof", "presumption of innocence", "proviso", "real chance of acquittal", "reason to guilt by an impermissible path", "redirection", "standard of proof", "sworn evidence".

Criminal Code (Qld), s 668E(1), (1A).

  1. 1         KIEFEL CJ, BELL, KEANE, GORDON AND EDELMAN JJ.   The appellant appeals by grant of special leave from the orders of the Court of Appeal of the Supreme Court of Queensland (Morrison and Philippides JJA and Boddice J) dismissing an appeal against his convictions for six sexual offences. All the offences were alleged to have been committed against the appellant's half-sister. The prosecution case was wholly dependent upon acceptance of her evidence. The appellant did not give or call evidence. In the course…

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Details
AGLC
GBF v The Queen [2020] HCA 40
Case
[2020] HCA 40
Decision Date

CaseChat Overview and Summary

The appellant, GBF, was convicted in the Supreme Court of Queensland on seven counts of sexual offences allegedly committed against his half-sister when she was between 13 and 14 years old. The prosecution's case relied entirely on the complainant's evidence, and the appellant did not give or call evidence at trial. The appeal concerned the trial judge's directions to the jury, specifically a statement made after initial directions regarding the presumption of innocence and the onus and standard of proof.

The central legal issue before the High Court of Australia was whether the trial judge's impugned statement, that the appellant's failure to give sworn evidence "may make it easier" to assess the complainant's credibility, occasioned a miscarriage of justice. This required the Court to consider whether the statement invited the jury to impermissibly reason to the appellant's guilt from his exercise of the right to silence, and whether the influence of this statement was diminished by it being a judicial observation on the facts rather than a direction of law. The Court also had to consider whether the failure of either counsel to seek a redirection from the trial judge weighed against a conclusion that the trial's integrity was compromised, and whether the ambiguity of the statement meant there was no reasonable possibility the jury would have reasoned impermissibly.

The High Court allowed the appeal, finding that the impugned statement created a real chance that the jury would have engaged in a false process of reasoning, drawing an inference of guilt from the appellant's silence. Their Honours held that the statement, by suggesting that the absence of the appellant's evidence could assist in assessing the complainant's credibility, undermined the fundamental principle that an accused is not required to prove their innocence and that their silence cannot be used as evidence against them. The Court concluded that this irregularity, despite the absence of a redirection application, compromised the integrity of the trial and constituted a miscarriage of justice. Consequently, the convictions were set aside, and a new trial was ordered.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside the orders of the Court of Appeal of the Supreme Court of Queensland made on 1 February 2019 and, in lieu thereof, order that the appeal to that Court be allowed and the appellant's convictions be set aside and a new trial be had.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

CJ, BELL, KEANE, GORDON AND EDELMAN JJ

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Ratio Decidendi

Legal Principle Established

Established by: CJ, BELL, KEANE, GORDON AND EDELMAN JJ

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