R v Anagnostou

[2009] VSCA 47

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 706 of 2007

THE QUEEN

v

NICHOLAS ANAGNOSTOU

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JUDGES:	VINCENT, NETTLE and ASHLEY JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 February 2009
DATE OF ORDERS	16 February 2009
DATE OF REASONS:	20 March 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 47

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CRIMINAL LAW – Conviction – Sentence – Aggravated burglary – Armed robbery – False imprisonment – Alibi evidence – Exercise of the right to silence – Crown invited jury to draw a negative inference – Retrial ordered.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D A Trapnell SC	Mr C Hyland, Solicitor for Public Prosecutions
For the Appellant	Mr P F Tehan QC with Mr P J Doyle	Revill & Papa Lawyers

VINCENT JA
NETTLE JA
ASHLEY JA:

1. In this matter, this Court on 16 February 2009 granted the appellant leave to appeal against the convictions entered against him in the County Court at Melbourne on 21 February 2007.  The Court allowed the appeal, set aside the convictions and sentences imposed in consequence and directed that a retrial be had.  We indicated, at the time, that a brief statement of our reasons for making these orders would be provided.

Background

1. There is no need, in the circumstances, to set out the evidence given at the trial in any detail.  It is sufficient to state that the prosecution contended that, under the mistaken belief that one of the occupants of a unit in Salisbury Street, Moonee Ponds was a drug dealer, the appellant and a co-offender entered the premises, intimidated, robbed and effectively held captive two other occupants.  The appellant denied any involvement whatsoever in these events.  He gave evidence himself to that effect, proffered explanations for evidence that appeared to incriminate him and adduced evidence of an alibi character from his parents.

1. Although there were other alleged deficiencies in the trial, the central problem with which this court was concerned arose from the fact that, during the presentation of the Crown case, the prosecutor led evidence from the informant that, in two separate interviews, the appellant had exercised his right to silence.  She continued to pursue this matter in her cross-examination of the appellant, but desisted when objection was taken by the defence counsel.  However, a little later, she cross-examined the appellant about his late provision of an alibi notice.  The clear implication of these two avenues of cross-examination, which was directly articulated in her final address to the jury, was that the appellant had taken advantage of his right to silence to enable himself to concoct later a defence intended to accommodate the evidence against him.  The jury was invited, in effect, to conclude that, if the version given by the appellant at the trial was truthful, it would have been provided at the outset.  Regrettably, the trial judge not only did not provide any instruction to the effect that no adverse inference could be drawn against the appellant by reason of his exercise of his right to silence,[1] but appeared to accept that this line of argument was available to the prosecution.  The potential for the reversal of the onus of proof inherent in the prosecutor’s approach hardly needs emphasis and required the provision of a strong and proper direction which was simply not given.

   [1]Petty and Maiden v R (1991) 173 CLR 95; R v Davis (1959) 43 Cr App R 215; R v Ireland (1970) 126 CLR 321.

1. In the written submissions provided to the Court on behalf of the appellant, it was argued (inter alia) that –

The evidence elicited from the informant and the cross examination of the accused concerning his refusal to answer police questions violated the accused’s right to silence.

Once the evidence of the accused having exercised his right to silence when questioned by police was admitted, a direction was required that the exercise of that right was not to be used against him.[2]  No such direction was given, either during the evidence or in the charge.  Indeed, the learned trial judge’s charge added legitimacy to the Crown’s illegitimate attack.  The relevant section of the charge was in these terms:

‘The prosecution puts to you that this alibi notice was given very recently, well out of time.  The evidence is that the accused man had elected to avail himself of his right of silence and accordingly his version of events comes to you for the first time in this trial.  The prosecution says he had ample time to concoct a version to get round the forensic evidence …’

The Crown’s attack on the credibility of the accused’s case by reference to his late alibi notice (ground 2) provides a discrete basis on which his right to silence was eroded.  It also compounds the erosion complained of under cover of ground 1, as it amplifies the effect of the suggestion that if the accused was indeed innocent, he would have provided exculpatory evidence earlier.[3]

[2]King v The Queen (1986) 15 FCR 427, 435-437; R v Reeves (1992) 29 NSWLR 109, 115; R v Beljajev [1984] VR 657.

[3]Submissions 2-3.

1. Counsel appearing on behalf of the Director, although not accepting all of the assertions made on behalf of the appellant with respect to this aspect, conceded that the conduct of the prosecutor, which should have been the subject of proper instruction by the trial judge, had the effect of undermining the appellant’s right to silence and tended to reverse the onus of proof.  It was therefore accepted that the trial had miscarried.  

1. However, he initially submitted, the case against the appellant was so powerful that no substantial miscarriage of justice could be seen to have occurred and, accordingly, the proviso in s 568(1) of the Crimes Act (1958) should be applied.  He modified his position in the course of discussion, acknowledging that the outcome could be affected by the view taken of the appellant’s credibility.  In that situation, it became apparent that the Court was not in a position to determine on the material before us, whether or not a substantial miscarriage of justice may have occurred and, decided therefore that a further trial should be held.

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