R v Ellis

This case concerned an appeal to the High Court of Australia from a decision of the Supreme Court of New South Wales (Court of Criminal Appeal). The appeal arose from the joint trial of John Matthew Ellis and James Beresford Harvey for conspiracy. Harvey, who was unrepresented, made a comment during his defence addressing the jury about Ellis not giving evidence. The trial judge immediately intervened, instructing the jury to disregard the comment. Both accused were convicted. Ellis appealed his conviction to the Court of Criminal Appeal, which allowed his appeal and ordered a new trial, finding that Harvey's comment constituted an unlawful comment under section 407(2) of the Crimes Act 1900 (NSW) and that a miscarriage of justice had occurred. The Crown then appealed this decision to the High Court.

The legal issues before the High Court were twofold: first, whether section 407(2) of the Crimes Act 1900 (NSW), which prohibits comment on an accused person's failure to give evidence, extended to comments made by a co-accused during a joint trial; and second, if such a comment was made, whether the Court of Criminal Appeal had erred in finding that a substantial miscarriage of justice had occurred, thereby necessitating a new trial, or if the proviso to section 6 of the Criminal Appeal Act 1912 (NSW) allowed for the dismissal of the appeal.

The High Court, in a majority decision, rescinded the special leave to appeal. While there was some division on the interpretation of section 407(2), with some judges finding the literal interpretation prohibiting comment by a co-accused to be correct and others expressing doubt, the Court ultimately focused on the second issue. The majority held that the Court of Criminal Appeal's finding of a substantial miscarriage of justice was not necessarily a foregone conclusion simply because a statutory prohibition had been breached. They indicated that the Court of Criminal Appeal should have more thoroughly considered whether the comment, despite being unlawful, had actually led to a substantial miscarriage of justice, referencing English authorities where similar breaches did not automatically lead to a new trial. However, given the limited grounds for special leave and the fact that the Court of Criminal Appeal's decision on the interpretation of section 407(2) was upheld by the majority, the appeal was rescinded.