R v Giri

Case [2001] NSWCCA 197

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:     R v Giri [2001]  NSWCCA 197

FILE NUMBER(S):
60830/99

HEARING DATE(S): 26 February 2001

JUDGMENT DATE:    12/06/2001

PARTIES:
R v Nitin Giri

JUDGMENT OF:        Heydon JA Barr J Smart AJ   

LOWER COURT JURISDICTION:    Supreme Court

LOWER COURT FILE NUMBER(S):             70061/98

LOWER COURT JUDICIAL OFFICER:        Studdert J

COUNSEL:
Crown:          Mr G E Smith
Appellant:    Mr P Byrne SC       

SOLICITORS:
Crown:         S E O'Connor
Appellant:   Ross Hill and Associates

CATCHWORDS:
Criminal Law - Judicial instructions to jury - Right to silence of accused - Directions and comments by trial judge to jury on accused’s failure to give evidence at trial - Whether contravention of Evidence Act 1995 (NSW), s 20(2) - Where judge directed jury not to consider accused’s silence as sign of guilt - Where judge also commented that jury could consider silence of accused when weighing evidence of the Crown - Where accused stood trial for murder - Where accused did not give any evidence at trial - Evidence Act 1995 (NSW), s 20(2)
Criminal Law - Judicial instructions to jury - Murder trial - Whether directions on manslaughter adequate
Criminal Law - Judicial instructions to jury - Murder trial - Whether directions on self-defence adequate
Criminal Law - Judicial instructions to jury - Murder trial - Whether directions on reliability of witnesses adequate
Criminal Law - Appeals - Appeals against conviction - Whether "no substantial miscarriage of justice" - Whether proviso applies under Criminal Appeal Act 1912 (NSW), s 6(1)
D

LEGISLATION CITED:
Criminal Appeal Act 1912
Evidence Act 1995

DECISION:
Appeal dismissed

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

60830/99

HEYDON JA
  BARR J
  SMART AJ

Tuesday, 12 June 2001

REGINA v Nitin GIRI

Criminal Law - Judicial instructions to jury - Right to silence of accused - Directions and comments by trial judge to jury on accused’s failure to give evidence at trial - Whether contravention of Evidence Act 1995 (NSW), s 20(2) - Where judge directed jury not to consider accused’s silence as sign of guilt - Where judge also commented that jury could consider silence of accused when weighing evidence of the Crown - Where accused stood trial for murder - Where accused did not give any evidence at trial - Evidence Act 1995 (NSW), s 20(2)

Criminal Law - Judicial instructions to jury - Murder trial - Whether directions on manslaughter adequate

Criminal Law - Judicial instructions to jury - Murder trial - Whether directions on self-defence adequate

Criminal Law - Judicial instructions to jury - Murder trial - Whether directions on reliability of witnesses adequate

Criminal Law - Appeals - Appeals against conviction - Whether “no substantial miscarriage of justice” - Whether proviso applies under Criminal Appeal Act 1912 (NSW), s 6(1)

The appellant and a co-accused were convicted of the murder of Shajedul Haque (the deceased) on 5 September 1999. The death of the deceased resulted from a physical attack upon him, which occurred outside a nightclub on 22 June 1996.

Neither the appellant…

Continue reading R v Giri

Sign in free to access the full text

Details
AGLC
R v Giri [2001] NSWCCA 197
Case
[2001] NSWCCA 197
Decision Date

CaseChat Overview and Summary

In the case of R v Giri, the appellant stood trial for murder in the Supreme Court of New South Wales. The appeal concerned several issues, primarily focusing on the trial judge's instructions to the jury regarding the appellant's failure to give evidence, the adequacy of directions on manslaughter, self-defence, and the reliability of witnesses. The High Court's judgment in Azzopardi v R, which was delivered after the original hearing of the appeal, was also considered.

The key legal issue addressed by the court was whether the trial judge's comments to the jury about the appellant's silence contravened section 20(2) of the Evidence Act 1995 (NSW). This section prohibits drawing an inference of guilt from an accused's silence. The court also needed to determine if the judge's directions on manslaughter, self-defence, and the reliability of witnesses were adequate. Furthermore, the court examined whether the appeal against conviction should be dismissed under section 6(1) of the Criminal Appeal Act 1912 (NSW), which requires a "no substantial miscarriage of justice" to be proven.

The court found that the trial judge's directions did not contravene section 20(2) of the Evidence Act as they clearly advised the jury not to infer guilt from the appellant's silence. The judge's comments that the jury could consider the silence when weighing the Crown's evidence were deemed permissible as they related to the weight to be given to the evidence rather than inferring guilt from silence. The court also found the directions on manslaughter, self-defence, and the reliability of witnesses to be adequate. Finally, the court concluded that no substantial miscarriage of justice had occurred, leading to the dismissal of the appeal against conviction.

The Supreme Court dismissed the appeal against conviction, affirming the appellant's conviction.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

It is convenient to take these grounds out of order and commence, as the appellant’s counsel did in oral argument, with Ground 2. It was Ground 2 to which the bulk of attention was directed in argument. Ground 2: direction on failure of accused to give evidenceThe forensic problem The appeal was initially argued on 26 February 2001, but counsel for the appellant pointed out that, after argument on 20 and 21 November 2000, judgment stood reserved in the High Court in an appeal in Azzopardi v R and in a special leave application in Davis v R. He said that it was possible that the High Court might throw light on the correctness of the trial judge’s directions contained in ground 2. The appellant’s counsel accepted that in all the circumstances it was appropriate for this Court not to deliver judgment until the High Court had delivered judgment. He said that all of the arguments which the appellant would be putting on all grounds of appeal were new trial points. He said:“I think it is realistic to concede, on the appellant’s behalf, that this is a case where, perhaps realistically, the most favourable verdict that might be expected in all the circumstances is a verdict of guilty of manslaughter …. [His] position at the moment … should be, perhaps, considered in that light. He has been and he was on bail for that period of three years or certainly all but a couple of months of it from the time of the trial to the time of his arrest. So that his sentence goes around from September 1999. I simply point that out, that it is not one of those cases where his continued detention is greater than otherwise.”The last words have not been correctly transcribed. Counsel’s point was that the case was not one where success for the appellant would automatically result in his release without any risk of being imprisoned in relation to this charge in future. Accordingly, counsel was indicating that there was no hardship likely to flow to the appellant from awaiting the judgments of the High Court. The High Court delivered judgment on 3 May 2001: Azzopardi v R [2001] HCA 25. The appellant’s counsel supplied some written submissions about the decision on 9 May 2001. The Crown did the same on 14 May 2001. Both of these sets of submissions were helpful. The trial judge directed the jury as follows:“An accused person may always give evidence at his trial, but he is not obliged to do so. It is of fundamental importance that the Crown has to prove, beyond reasonable doubt, that the accused is guilty of the offence with which he has been charged and the accused does not bear any onus. He is, as I have already told you, presumed to be innocent unless and until the Crown has proved that he is guilty.The accused is entitled to elect to say nothing and to make the Crown prove his guilt. You will remember the evidence that the police have given, as to the caution conveyed to each accused at the time when he was being questioned. The accused was informed that he was not obliged to answer the questions asked by the police officer. That is the law. A person who is questioned by police, has the right to remain silent. That is a right that exists, even when he is on trial. That is a right he brings with him into the Courtroom. You will remember earlier directions I gave you in the course of this trial, about this right of silence. That right is retained at trial and it is a right which the accused has exercised.Just because the accused has exercised the right that belongs to every citizen, you must not conclude that he has elected not to give evidence because he is guilty of the offence charged. Such a conclusion, from the exercise of the right to remain silent, would be altogether wrong. His silence must not be viewed, by you, as an admission of guilt.He may fear, for instance, that he would not be able to follow cross examination adequately, in the strange circumstances of a courtroom, or he may fear he may be confused by it. The accused may be content to rely upon what he perceives to be weaknesses in the case for the prosecution. There may be other good reasons for an accused person to decide not to give evidence and you must not speculate, in the case of either accused, as to why he has decided not to give evidence.However, you may when judging the value, or the weight of the evidence which has been put forward by the Crown, in seeking to prove its case against the accused, take into account the election by the accused, not to deny or contradict matters in the evidence at this trial, about which the accused could have given direct evidence. … The relevance of the fact that the accused has not given evidence can only go to the value, or the weight, which you give to the evidence which the Crown witnesses have given.”

Decision

Reasons for decision

BARR J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: BARR J

Full text does not contain this section.