R v Smallwood - [2021] QCA 132

SUPREME COURT OF QUEENSLAND

CITATION:

R v Smallwood [2021] QCA 132

PARTIES:

R
v
SMALLWOOD, Terry Edward
(appellant)

FILE NO/S:

CA No 220 of 2020
DC No 242 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Townsville – Date of Conviction: 25 September 2020 (Dick SC DCJ)

DELIVERED ON:

Date of Orders: 8 June 2021
Date of Publication of Reasons: 18 June 2021

DELIVERED AT:

Brisbane

HEARING DATE:

8 June 2021

JUDGES:

Fraser and Mullins JJA and Henry J

ORDERS:

Orders delivered: 8 June 2021

1.   Appeal is allowed.

2.   Conviction set aside.

3.   Re-trial ordered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where the appellant was convicted of one count of grievous bodily harm by a jury – where it was in issue whether the complainant suffered the injury alleged to constitute grievous bodily harm in the impugned assault on the afternoon of 17 November 2018 or in an alleged assault earlier on the same day – where the appellant argued that a miscarriage of justice arose because the trial judge failed to direct the jury that no adverse inferences could be drawn from the election of the appellant to not give evidence – where the respondent argued the proviso under s 668E(1A) of the Criminal Code (Qld) should be applied due to the way the defence case was conducted at trial and the strength of the prosecution case – where the complainant gave evidence against the accused – where the appellant called his brother to give evidence – where the appellant’s account was not in front of the jury in any form (such as a police record of interview) – where the trial judge gave directions in relation to the appellant’s decision to call evidence immediately after mentioning his election to not give evidence – whether there was a miscarriage of justice occasioned by that non-direction and if so, whether the proviso should be applied

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

Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25, applied
Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40, cited
Graham v The Queen (2016) 90 ALJR 820; (2016) 333 ALR 447; [2016] HCA 27, cited
Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7, cited
R v Bevin[2008] QCA 310, cited
R v DAH (2004) 150 A Crim R 14; [2004] QCA 419, cited
R v GAJ[2011] QCA 141, cited
R v Hartfiel[2014] QCA 132, cited
Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81, cited

COUNSEL:

M Hibble for the appellant
A J Walklate for the respondent

SOLICITORS:

Keir Steele Waldon Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

FRASER JA: The appellant was found guilty by a jury that…

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.

Continue reading R v Smallwood

Details

AGLC: R v Smallwood [2021] QCA 132
Case: [2021] QCA 132
Decision Date: 18 June 2021

CaseChat Overview and Summary

The appellant, Smallwood, appealed against his conviction for grievous bodily harm, contending that a miscarriage of justice occurred because the trial judge failed to direct the jury about the appellant's decision not to give evidence. The respondent argued that the proviso under s 668E(1A) of the Criminal Code (Qld) should apply due to the way the defence case was conducted and the strength of the prosecution case. The court needed to determine whether there was a miscarriage of justice caused by the trial judge's non-direction and if the proviso should be applied.

The court considered the authority of Azzopardi v The Queen, where the High Court held that it is desirable for a trial judge to warn the jury that an accused's silence in court is not evidence against them, does not constitute an admission, may not be used to fill gaps in the prosecution's evidence, and may not be used as additional proof against the accused. The trial judge did not provide such directions in this case. The omission was significant given the strong prosecution case and the complainant's unwavering testimony that he was not injured before the alleged assault by the appellant. The court concluded that the trial judge's non-direction could have impacted the jury's assessment of the case.

Based on the reasoning above, the court found that the appellant's conviction was unsafe and unsatisfactory due to the trial judge's non-direction. The appeal was allowed, the conviction set aside, and a re-trial ordered. The court's decision acknowledged the importance of proper jury directions to prevent the misuse of an accused's silence in court.

Orders

Orders of the court

Orders delivered: 8 June 2021

1. Appeal is allowed.

2. Conviction set aside.

3. Re-trial ordered.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The trial judge did not give any other direction to the jury about the appellant not giving evidence or any direction about the claim of privilege made by the appellant’s brother.Consideration In Azzopardi v The Queen[1] Gaudron, Gummow, Kirby and Hayne JJ accepted that if a judge said nothing to the jury about the fact that an accused had not given evidence the jury may use the accused’s silence in court to his or her detriment. Their Honours continued: “It follows that if an accused does not give evidence at trial it will almost always be desirable for the judge to warn the jury that the accused’s silence in court is not evidence against the accused, does not constitute an admission by the accused, may not be used to fill gaps in the evidence tendered by the prosecution, and may not be used as a make–weight in assessing whether the prosecution has proved its case beyond reasonable doubt.”[1](2001) 205 CLR 50 at [51]. As was submitted for the respondent, the issue in Azzopardi concerned a comment by a trial judge about the way in which the jury might use the fact that the accused did not give evidence. That does not deny the persuasive force of the statement by the majority that it will “almost always” be desirable for the trial judge to warn the jury in the way described in the quoted passage. That statement has been applied in many cases.[2] In R v Hartfiel,[3] Muir JA (with whose reasons McMurdo P and Dalton J agreed) referred to those decisions and endorsed the statement by White J in R v DAH[4] of the essential elements which must be conveyed to the jury by the trial judges’ directions: no adverse inference may be drawn from an accused’s failure to give evidence; the onus of proof remains on the prosecution; the presumption of innocence remains; and the failure to give evidence does not strengthen the prosecution case or supply additional proof against an accused.[2]For example, see R v DAH [2004] QCA 419, R v Bevin [2008] QCA 310 and R v GAJ [2011] QCA 141.[3][2014] QCA 132 at [27].[4][2004] QCA 419. The trial judge’s omission to give the jury directions to the effect of those set out in Azzopardi was submitted by the respondent to be inconsequential in light of the way in which the defence had been conducted at the trial and the strength of the prosecution case. The prosecution case that the appellant assaulted the complainant on the afternoon of 17 November was certainly strong, but it was in issue whether the complainant suffered the injury alleged to constitute grievous bodily harm in that assault. That issue arose upon the evidence given by the complainant’s friend in the Crown case, and the evidence of the appellant’s brother called by the appellant, to the effect that the appellant’s brother punched the complainant in his left eye in the early hours of the same day, leaving the complainant with a visible facial injury. The guilty verdict was reasonably open upon the whole of the evidence, particularly having regard to the complainant’s unwavering evidence that he was not injured before the appellant punched him in his left eye on the afternoon of 17 November. It does not follow that the omission to direct the jury about the failure of the appellant to give evidence may not have been significant for the verdict.

CITATION:	R v Smallwood [2021] QCA 132
PARTIES:	R v SMALLWOOD, Terry Edward (appellant)
FILE NO/S:	CA No 220 of 2020 DC No 242 of 2020
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Townsville – Date of Conviction: 25 September 2020 (Dick SC DCJ)
DELIVERED ON:	Date of Orders: 8 June 2021 Date of Publication of Reasons: 18 June 2021
DELIVERED AT:	Brisbane
HEARING DATE:	8 June 2021
JUDGES:	Fraser and Mullins JJA and Henry J
ORDERS:	Orders delivered: 8 June 2021 1. Appeal is allowed. 2. Conviction set aside. 3. Re-trial ordered.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where the appellant was convicted of one count of grievous bodily harm by a jury – where it was in issue whether the complainant suffered the injury alleged to constitute grievous bodily harm in the impugned assault on the afternoon of 17 November 2018 or in an alleged assault earlier on the same day – where the appellant argued that a miscarriage of justice arose because the trial judge failed to direct the jury that no adverse inferences could be drawn from the election of the appellant to not give evidence – where the respondent argued the proviso under s 668E(1A) of the Criminal Code (Qld) should be applied due to the way the defence case was conducted at trial and the strength of the prosecution case – where the complainant gave evidence against the accused – where the appellant called his brother to give evidence – where the appellant’s account was not in front of the jury in any form (such as a police record of interview) – where the trial judge gave directions in relation to the appellant’s decision to call evidence immediately after mentioning his election to not give evidence – whether there was a miscarriage of justice occasioned by that non-direction and if so, whether the proviso should be applied Criminal Code (Qld), s 668E(1), s 668E(1A) Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25, applied Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40, cited Graham v The Queen (2016) 90 ALJR 820; (2016) 333 ALR 447; [2016] HCA 27, cited Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7, cited R v Bevin[2008] QCA 310, cited R v DAH (2004) 150 A Crim R 14; [2004] QCA 419, cited R v GAJ[2011] QCA 141, cited R v Hartfiel[2014] QCA 132, cited Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81, cited
COUNSEL:	M Hibble for the appellant A J Walklate for the respondent
SOLICITORS:	Keir Steele Waldon Lawyers for the appellant Director of Public Prosecutions (Queensland) for the respondent