R v Wilson

[2005] NSWCCA 20

Reported Decision: 62 NSWLR 346

New South Wales

Court of Criminal Appeal

CITATION:	Regina v Wilson [2005] NSWCCA 20
HEARING DATE(S):	03/02/2005
JUDGMENT DATE:	15 February 2005
JUDGMENT OF:	Hunt AJA at 1; Grove J at 56; James J at 60
DECISION:	1. The appeal against conviction is dismissed; 2. Leave to appeal against sentence; 3. The sentence appeal is upheld; 4. The sentence of imprisonment for nine years is quashed and a new head sentence of imprisonment for six years commencing on 28 October 2003 is imposed with a non-parole period of four years and six month.. The earliest day on which it appears that the appellant will become eligible for release on parole is 28 April 2008.

CATCHWORDS:	CRIMINAL LAW AND PROCEDURE - Appeal against conviction - Directions as to the absence of any evidence from the accused - Whether "desirable" in this case for full "Azzopardi" direction to be given - No reference in direction given to some evidence not available to fill in gaps in Crown case or as make-weight in assessing whether Crown has proved its case beyond reasonable doubt - No complaint at trial as to adequacy of summing-up - Rule 4 - Need to show that error led to miscarriage of justice for leave to rely on error. - Whether missing ingredients of "Azzopardi" direction "desirable" in this case - Whether those ingredients directed to weight to be given to hearsay evidence of exculpatory statements by accused to police or to preventing jury from reasoning that, if the accused had any answer to the Crown case or to a particular part of the Crown case he or she would have given evidence of that, and that he did not give evidence because his or her evidence would have filled in those gaps or added to the weight of the Crown case. - Reliance by appellant in Regina v Macris [2004] NSWCCA 261 - whether ruling that nothing in the facts of that case would have made a full "Azzopardi" direction "inappropriate" demonstrated that it was "desirable" for such a direction to be given - whether correctly decided. - Appeal against sentence - misdirection as to existence of recognised range of sentences for manslaughter of young child - matters of aggravation referred to without indicating whether accepted or rejected - reduced sentence.
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 Evidence Act 1995
CASES CITED:	Azzopardi v The Queen (2001) 205 CLR 50 Bridge v The Queen (1994) 118 CLR 600 Dominican v The Queen (1992) 173 CLR 555 Griffiths v The Queen (1989) 167 CLR 372 Jones v Dunkel (1959) 101 CLR 298 Mraz v The Queen (1955) 93 CLR 493 Mule v The Queen [20004] WASCA 7 Papakosmas v The Queen (1999) 196 CLR 297 Regina v Abusafiah (1991) 25 NSWLR 531 Regina v Bargwan (CCA, 15 June 1998, unreported) Regina v Blacklidge (CCA unreported 12 December 1995 Regina v Branscombe (1921) 21 SR 363 Regina v Burns [2003] NSWCCA 30 Regina v Button [2002] NSWCCA 195 Regina v DH [2000] NSWCCA 360 Regina v Hoerler [2004] NSWCCA 184 Regina v Fuge [2001] NSWCCA 208 Regina v Jeffrey, CCA 16 December 1993 Regina v Le [2003] SASC 2 Regina v Macris Regina v Mahoney (2000) 114 A Crim R 130 Regina v Malas (1978) 21 ALR 225 Regina v Nguyen [2002] NSWCCA 342 Regina v O'Brien (1920) SR 486 Regina v OGD (1997) 45 NSWLR 744 Regina v Park [2003] NSWCCA 203 Regina v Richards [2002] NSWCCA 38 Regina v Sanderson, CCA 18 July 1994 Regina v Sharp [1998] 1 WLR 7 Regina v Simpson (2001) 53 NSWLR 704 Regina v SMR [2002] NSWCCA 258 Regina v Tripodina (1988) 35 A Crim R 183 Regina v Wickham [2004] NSWCA 193 RPS v The Queen (2000) 199 CLR 620 Weissensteiner v The Queen (1993) 178 CLR 217
PARTIES:	Regina Linda Wilson
FILE NUMBER(S):	CCA 2004/2125
COUNSEL:	Appellant: R Hulme SC Crown: J Bennett SC
SOLICITORS:	Appellant: Carters Law Firm Crown: S. Kavanagh

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	70071/02
LOWER COURT JUDICIAL OFFICER:	Miles AJ

CCA 2004/2125
HUNT AJA
GROVE J
JAMES J


16 February 2005

REGINA v Linda WILSON

Judgment

1 HUNT AJA: The appellant (Linda Wilson) was found by a Supreme Court jury not guilty of the murder, but guilty of the manslaughter, of a boy almost two years old (Jayden March) who was in her foster care. The jury had been directed that, if they were not satisfied beyond reasonable doubt that the appellant intended to inflict grievous bodily harm to the child, she would be guilty of manslaughter if they were satisfied beyond reasonable doubt that the act causing the death of the child was an unlawful and dangerous one. Miles AJ sentenced her to imprisonment for nine years, with a non-parole period of six years and eleven months.

2 When sentencing the appellant, the trial judge interpreted the jury’s verdict as its rejection of the Crown case that she had acted alone in injuring the child, that the substantial injuries (which her husband said in evidence that he had inflicted on the child’s head and stomach the previous evening) had not been inflicted by her and that they had had not themselves been the cause of his death, but that her shaking of the child was the final causative factor in his death. These findings were based to a large part on the extensive medical evidence tendered by the Crown which established that the child had died from what the forensic pathologists called “Shaken Baby Syndrome”, causing his brain to swell and leading to asphyxia and death. The medical evidence was that this shaking would have occurred about thirty minutes before death.

3 The version which the appellant gave when extensively interviewed by the police was that, after observing that the child was playing and appeared to be normal, she returned within minutes to find him on his side, making a croaking noise, and shaking and holding his head. She had started to panic and was “just like patting him”, trying to wake him up. She telephoned her husband and, at his suggestion, she took the child to the local doctor’s surgery where, after unsuccessfully attempting to resuscitate the child, the doctor pronounced the child dead. The videotapes of these interviews were before the jury, having been tendered by the Crown.

4 The judge rejected the Crown’s submission that the unlawful and dangerous acts accepted by the jury demonstrated deliberate cruelty on the part of the appellant. He considered whether there had been any culpable delay by her in seeking medical attention, but said that he did not make any such finding against the appellant.

5 The husband was never charged with any offence.

6 The appellant has appealed against conviction and she seeks leave to appeal against her sentence.

7 The sole ground of appeal asserts that the trial judge erred in his directions to the jury concerning the fact that the appellant did not give evidence in the trial. The relevant directions were in these terms:

As I say, she has presented a case partly by way of evidence and partly by way of argument presented on her behalf. Now, as far as the evidence goes, it is obvious that she herself has not given evidence. She has called evidence but she herself has not entered the witness box. Now, I cannot stress too strongly, it has already been said but it comes again from me, the accused does not have to give evidence. She has the right to give evidence if she wishes, but she can exercise the choice as she has in this case not to do so. It is essential that you remember that no inference of guilt can be drawn from the absence of the accused from the witness box. In no way can you draw an inference that she is admitting or confessing anything by declining to give evidence.
What the accused has said to other people in the past is itself evidence. It is hearsay evidence as I have mentioned earlier, but it is evidence and you must take it into account. It is a possible version of facts. You may consider it to be true. But remember that it is not evidence in the same sense as the evidence that has been given in the courtroom by witnesses who have gone into the witness box, in particular, it is not subject to cross-examination. What she has said to the police and to other persons in the past in so far as you have heard about it, for instance to the doctors in the hospital, is something that you will take into account but, of course, it is not evidence in the same sense as the evidence of the witnesses who have given evidence on oath or affirmation.

There was no complaint by counsel appearing for the appellant at the trial as to the adequacy of these directions.

8 There was no direct evidence that the appellant inflicted these injuries on the child, the Crown case being a circumstantial one based on the facts that the injuries causing death indicated that the child had been shaken, that they were inflicted shortly before death and that only the appellant was present in the room with the young child at the relevant time. A necessary implication of the version which the appellant gave to the police when interviewed was that, if the cause of death was the result of human intervention, she was the only person who could have inflicted the injuries at the relevant time. The appellant had also told another witness (a patient of the local doctor) that the child’s five year old sister was in another room at the time. There was no-one else in the house.

9 In the course of directing the jury in relation to the need to be satisfied beyond reasonable doubt that the only rational explanation of these circumstances was the guilt of the appellant, the trial judge made it clear that the prosecution bore the onus of proving her guilt beyond reasonable doubt and that it was not for the appellant to prove her innocence “or, indeed, to prove anything at all”.

10 The appellant’s argument is that the judge failed to direct the jury in accordance with the judgment of four justices in Azzopardi v The Queen (2001) 205 CLR 50 at [51]:

In the course of argument of the present matters it was suggested 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. Plainly that is so. 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. It by no means follows, however, that the judge should go on to comment on the way in which the jury might use the fact that the accused did not give evidence.

11 It is conceded by the appellant that the judge’s directions satisfied the first two ingredients of that direction, but not the second two ingredients — that the absence of evidence from an accused may not be used to fill gaps in the evidence tendered by the Crown, and may not be used as a make-weight in assessing whether the Crown has proved its case beyond reasonable doubt. The appellant submits that the failure by the judge to direct the jury in the terms of the two missing ingredients led to “a significant possibility of a real injustice”.

12 Before dealing with the appellant’s arguments, it is important to emphasise that nothing which the judge said to the jury could reasonably have been construed by the jury as suggesting that the fact that the appellant had not given evidence could be used by them to accept the Crown case more readily, or to infer that her evidence would not have assisted her case (Jones v Dunkel (1959) 101 CLR 298 at 308, 312, 320-321), or that she was, or that she believed that she was, guilty of the offence charged (Evidence Act 1995, s 20(2)). Indeed, the judge was at pains to deny the availability of any such inferences, and to ensure that the jury was obliged to take into account her statements to the police and other witnesses and which could assist her case. Of course, even in civil cases the rule in Jones v Dunkel did not permit an inference that the untendered evidence would in fact have been damaging to the party who could have tendered it or to fill gaps in the evidence: Jones v Dunkel at 308, 312, 320-321; Bridge v The Queen (1994) 118 CLR 600 at 615; Weissensteiner v The Queen (1993) 178 CLR 217 at 227, 235.

13 It is also convenient at this stage to note another matter. The relevant passage in the summing up does not include the warning, said to have been “ordinarily necessary” in Regina v OGD (1997) 45 NSWLR 744 at 751), that there may be reasons unknown to the jury why an accused person remains silent, even if otherwise in a position to contradict or explain evidence. The phrase “ordinarily necessary” was said by this Court in Regina v Bargwan (CCA, 15 June 1998, unreported) to mean that it is only in extraordinary circumstances that such a warning should not be given. The implied criticism of the OGD judgment by the High Court in RPS v The Queen (2000) 199 CLR 620 at [30] related only to any interpretation of it as authorising a Jones v Dunkel direction in any case where the accused has not given evidence. It was in that sense that it was said that OGD should be overruled; it did not relate to what has become known as an OGD warning, that there may be many reasons unknown to the jury why an accused remains silent. I interpret the agreement by Callinan J (at [110]) with what had been said by four justices at [30] in the same way. There is no complaint in the present appeal that the warning was not given at the appellant’s trial.

14 It is significant that the joint judgment in the Azzopardi case did not include an OGD warning in the warning which is now “almost always…desirable”, notwithstanding that the trial judge in the Azzopardi case had directed the jury, in a passage quoted in the joint judgment (at [71], p 76), that “[t]here may be many reasons why an accused person may decide not to give evidence”. In Regina v Nguyen [2002] NSWCCA 342 at [52], this Court said that it was not persuaded that it was still necessary to give the warning formulated in the OGD case where the warnings in the Azzopardi case have been given, provided that there has been no Jones v Dunkel direction given. That is clearly correct, as the OGD direction was designed to balance a Jones v Dunkel direction that a failure by the accused to contradict or explain incriminating evidence, in circumstances where it would be reasonable to expect him to do so, may make it easier for the jury to accept, or to draw inferences from, the evidence on which the Crown relies. An OGD direction is therefore only necessary where such a suggestion has been made.

15 With those matters put to one side, I turn now to consider the complaint which the appellant has made in her appeal. The High Court in Azzopardi’s case did not make it compulsory to give the suggested direction to be given in every case, or even in almost every case. Unlike the judgment in (for example) Dominican v The Queen (1992) 173 CLR 555 at 561-562, which laid down “special rules in relation to the directions which judges must give in criminal trials where identification is a significant issue”, the majority judgment in the Azzopardi case very carefully said only that it will “almost always be desirable” for the warning to be given where there is no evidence from the accused. (I have added the emphasis in both cases.) In my view, the difference is important — particularly where, as in the present case, no complaint was made by counsel for the appellant at the trial.

16 This is the approach which has been adopted by this Court in most of the cases in which the Azzopardi case has been considered. In Regina v Richards [2002] NSWCCA 38 at [29], it was said that the Azzopardi case cannot be taken to have ruled that it is compulsory, let alone desirable, for the warning to be given in every case. In Regina v SMR [2002] NSWCCA 258 at [105], it was said that the Azzopardi case did not state that it was mandatory in every case, and that some element of discretion was left to the trial judge. In Regina v Park [2003] NSWCCA 203 at [94], it was noted that the warning was not universally required, though “desirable”. In that case, too, no complaint had been made at the trial, and leave to rely on its absence on appeal pursuant to r 4 of the Criminal Appeal Rules was refused. An application to the High Court for special leave to appeal from the judgment was dismissed (12 October 2004). In most of the cases in which appeals had been dismissed notwithstanding the absence of a direction which satisfied every one of the four ingredients of the Azzopardi direction, directions had been given which satisfied the first two ingredients but not the second two ingredients — as in the present case.

17 There is, however, one decision of this Court in which a very different approach was adopted. It formed the principal basis of the appellant’s argument in the present case. In Regina v Macris [2004] NSWCCA 261, the trial judge answered a jury’s question as to why the accused had not given evidence by saying that the accused was entitled to put the Crown to proof, that he had the right not to give evidence and that no inference could be drawn against him for exercising that right. The judge elaborated that statement during the summing-up, adding that the accused had acted in accordance with legal advice. No complaint was made at the trial as to the adequacy of those directions. On appeal, the appellant complained of the judge’s failure to give directions in accordance with both the Azzopardi and the OGD cases.

18 This Court held that, as no Jones v Dunkel direction had been given, it was (in accordance with the Nguyen case) unnecessary to give an OGD direction provided that an Azzopardi direction was given. However, the Azzopardi direction given did not include its last two ingredients, warning the jury that the fact the accused had not given evidence may not be used by it to fill gaps in the Crown evidence and may not be used by them as a make-weight in assessing whether the Crown had proved its case beyond reasonable doubt. The Court stated (at [29]) that, although the Azzopardi case does admit of cases where a direction in its terms may not be necessary, there was “nothing in the facts of this case which would make such a direction inappropriate”. The Court held (at [31]) that, as the error “gives rise to the possibility of a real injustice being occasioned to the appellant”, leave to rely on the ground of appeal was granted and the appeal was upheld on that ground. No reference was made to the approach which had been taken in the earlier cases. With the greatest respect to the members of the Court in that case, such an approach is inconsistent with authority.

19 Rule 4 of the Criminal Appeal Rules provides, inter alia, that no direction or omission to give a direction at the trial shall, without the leave of this Court, be allowed as a ground of appeal unless objection was taken at the trial to the direction or omission by the appellant. In order to obtain such leave, an appellant must first establish at least an arguable case of error — in this case, that there was a misdirection. The issue which arose in that appeal, and which arises in the present appeal, is therefore whether it was “desirable” for the Azzopardi direction (or any ingredient of it) to be given in the particular case, but there was no examination in that appeal of why it was “desirable” for the two missing elements of the Azzopardi direction to be given in that case. That it was “desirable” in that case is not established by demonstrating merely that there was “nothing in the facts of [his] case which would make such a direction inappropriate”. (I have added the emphasis.)

20 Next, leave to rely on an error where no point was taken at the trial will be granted only where the appellant can demonstrate that the error led to a miscarriage of justice: Regina v O’Brien (1920) 20 SR 486 at 490; Regina v Branscombe (1921) 21 SR 363 at 367, 378 (the third member of the Court said [at 372] that only under the most exceptional circumstances would an appellant be permitted to rely on a point not taken at the trial when he had been legally represented there); the High Court refused special leave to appeal, (1921) 29 CLR 602; Regina v Malas (1978) 21 ALR 225 at 232; Regina v Abusafiah (1991) 25 NSWLR 531 at 536. In Regina v Tripodina (1988) 35 A Crim R 183 at 195, this Court stated an even more onerous test for the grant of leave to rely on a point not taken at the trial, that leave will generally only be granted where an irregularity has occurred which is such a departure from the essential requirements of law that it went to the root of the proceedings. However, the usual test for compliance with r 4 is that the appellant must demonstrate that the error led to a miscarriage of justice.

21 There is a miscarriage of justice where, by reason of the error made, the accused may have lost a chance fairly open to him of being acquitted: Mraz v The Queen (1955) 93 CLR 493 at 514. In the Macris case, the appellant had to show (as does the appellant in the present case) that the absence of the direction in question led to the loss of such a chance of being acquitted. This is the approach which has been adopted by this Court in cases in which the Azzopardi case has been considered and the appeal dismissed: see, for example Regina v Burns [2003] NSWCCA 30 at [50]. See also Regina v Le [2003] SASC 2 at [30]. No reference was made to this approach in the Macris judgment, and the basis upon which the Court was satisfied that the absence of the relevant direction in that case led to a miscarriage of justice was not identified.

22 In my respectful opinion, the decision in Regina v Macris was wrong, and it should not be followed.

23 It seems necessary once more to make it clear that the Criminal Appeal Act 1912 does not exist to enable an accused who has been convicted in accordance with directions to which no objection has been taken to have a new trial in accordance with different directions which he could and should have raised at his first trial, unless the directions given have led to a miscarriage of justice. The trial in the present case took place long after the decision of the High Court in the Azzopardi case, and no argument is available that the rules by which it should have been conducted had been changed since the trial.

24 The requirements of r 4 of the Criminal Appeal Rules do not constitute some mere technicality which may simply be brushed aside. One purpose of the requirement that no misdirection or non-direction may, without leave, be allowed as a ground of appeal unless objection was taken at the trial is to ensure that the trial judge receives the assistance of counsel to which he or she is entitled in the increasingly difficult task of giving appropriate directions to the jury. If a summing-up contains some error which could easily have been cured once the judge’s attention had been drawn to it, if counsel for the accused to whose detriment the error operates fails to comply with his or her duty to draw the error to the judge’s attention, and if the error has caused no miscarriage of justice, it can hardly be called appropriate to permit an appellant to seek a new trial on the basis of that error in the hope that he may do better with a different jury. The right to a fair trial operates not only in favour of the accused; the Crown which prosecutes on behalf of the whole community also has a right to a fair trial. These statements have been made by this Court in many cases: see, for example: Regina v Abusafiah (1991) 24 NSWLR 531 at 536; Regina v Jeffrey (Court of Criminal Appeal, 16 December 1993) at pp 6-7; Regina v Sanderson (Court of Criminal Appeal, 18 July 1994) at pp 7-8; Regina v Steeden (Court of Criminal Appeal, 19 August 1994) at 6; ; Regina v Mahoney (2000) 114 A Crim R 130 at [15] – [16]; Regina v DH [2000] NSWCCA 360 at [115]; Regina v Fuge [2001] NSWCCA 208 at [40] – [45] (the case reported on other matters at (2001) 123 A Crim R 310); Regina v Button [2002] NSWCCA 195 at [31] – [35] (the case is reported on other matters at (2002) 54 NSWLR 455). See also Papakosmas v The Queen (1999) 196 CLR 297 at 319.

25 It has never been suggested that, where it becomes “desirable” in the particular case to give only the first two ingredients of the Azzopardi direction, the failure to give a ritual incantation of the whole direction is an error giving rise to a miscarriage of justice. In my view, the joint judgment in the Azzopardi case should not be interpreted as leading to such a consequence. Was it “desirable” then for the whole Azzopardi direction to be given in the present case? And did the absence of the second two ingredients of that direction lead to the loss of any chance fairly open to the appellant of acquittal or to some other miscarriage of justice?

26 The summing up contained the following warnings in relation to the fact that the appellant had not given evidence —

she did not have to give evidence; she had the right to do so or to choose not to, and
no inference of guilt could be drawn from the absence of any evidence from her; she had not admitted or confessed anything by declining to give evidence.
Those directions sufficiently satisfied the first two ingredients of the Azzopardi direction — that the silence of the accused in court is not evidence against the accused and does not constitute an admission by the accused. As I have already said, this was conceded by the appellant.

27 The third and fourth ingredients of the Azzopardi direction are that the silence of the accused in court —

(3) may not be used to fill gaps in the evidence tendered by the prosecution, and
(4) may not be used as a make-weight in assessing whether the prosecution has proved its case beyond reasonable doubt.
Counsel for the appellant argued that these missing directions should have been given because of the conflict between the medical evidence presented by the prosecutor and that presented by the appellant. This submission was not elaborated. In my view, it has not been made out.

28 Although the jury were instructed in very general terms that a doctor forms an opinion based in part on the history which has been supplied, it is clear from the medical evidence presented by both parties that, in this case, the opinions expressed by the doctors were based only on the examinations they conducted on the body of the deceased child (or, in some cases, on the examination by other doctors on that body). There was, the judge told the jury, nothing at all in any of the histories about the baby being shaken.

29 The medical evidence supporting the Crown case that human intervention had caused the death of the child was very strong. On the version given to the police by the appellant herself, there was no reasonable possibility that any person other than the appellant was in a position to touch the child at the relevant time. The medical evidence supporting the case for the appellant that there was a reasonable possibility that the child died from various natural causes was largely speculative, diffuse and in some respects contradictory. The submissions that the two missing ingredients from the Azzopardi direction would have (a) strengthened the weight to be afforded to the statements the appellant made to the police and other witnesses in her favour, and (b) provided the appellant with a chance fairly open to her of acquittal on that basis, should be rejected.

30 A more sustained argument was that — as the judge had instructed the jury that the hearsay evidence of the statements the appellant made to the police and other witnesses was not on oath or affirmation or subjected to cross-examination, and not evidence in the same sense as the evidence that had been given in court by witnesses — the missing ingredients would have balanced the effect of that instruction. This, it was suggested, was because the jury may reasonably have been persuaded by those missing ingredients to give her hearsay denial of mistreating the child greater weight than the direction given would have suggested to the jury.

31 The only “gap” in the Crown case was the absence of any direct evidence or admission that the child had been shaken and that it was the appellant who had shaken him. That had to be inferred from the nature of the injuries to the child, and the fact that those injuries were inflicted shortly before death when the appellant was the only person present in the room with the child at the relevant time. It was therefore certainly “desirable” in the present case to ensure that the jury did not treat the appellant’s silence in court as an admission that she was the person who had shaken the child.

32 The jury were not faced with total silence on the part of the appellant. They had had played to them her two interviews by the police. What is left is the fact that she had not given evidence supporting her statements to the police and been tested in cross-examination. The judge did direct the jury that no inference of guilt could be drawn from the appellant declining to give evidence. Her argument is that this direction did not deal specifically with the weight to be given to the statements made to the police, and that directions which included the two missing ingredients would have been effective to do so.

33 I do not myself interpret the two missing ingredients from the Azzopardi direction in this case as being concerned with the weight to be given to hearsay statements favouring the accused which have been tendered in evidence. Nor do I understand their purpose to be to balance the jury’s knowledge that hearsay statements made by an accused which favour his case are not evidence in the same sense as evidence given by witnesses in court. The reference to a “make-weight” in the last ingredient should not be confused with issues of the weight to be afforded to material in the case. A make-weight is no more than something placed in the scales to make up a required weight.

34 Both of the missing ingredients seem to me to be primarily directed to preventing the jury from reasoning that, if the accused had any answer to the Crown case, or to a particular part of the Crown case, he would have given evidence of that answer, and that he did not give evidence because he would himself have either filled any gaps in the Crown case or in some other way added to its weight. Yet the second of the directions which were given in this particular case (that no inference of guilt could be drawn from the absence of any evidence from the appellant, and that she had not admitted or confessed anything by declining to give evidence) — which is within the spirit of s 20(2) of the Evidence Act, and which in my view covers the same ground as the missing ingredients — adequately fulfils the purpose of those two ingredients.

35 Whilst the trial would not have suffered had the whole Azzopardi direction been given, I do not accept that it was “desirable” for the missing ingredients to have been included in the terms expressed by the joint judgment in the directions given in this case. The absence of the missing ingredients in those terms would not have led to the loss of any chance fairly open to the appellant of acquittal or to any other miscarriage of justice. Accordingly, I propose that leave to rely on the ground of appeal be refused and that the appeal against conviction be dismissed.

36 There is one further matter relating to the conviction appeal to which reference should be made. No complaint was made of the direction given by the judge that the appellant’s hearsay statements to the police and other witnesses were not on oath or affirmation or subjected to cross-examination, and were not evidence in the same sense as the evidence which had been given in court by witnesses. This direction was in much the same terms as the direction which appellate courts had permitted in relation to an unsworn statement by the accused at the time when trial judges were not permitted to comment upon the failure of the accused to give evidence. Such a direction is still permitted by ss 165(1)(a) of the Evidence Act in relation to hearsay evidence where the judge is requested by a party to give it. Section 165(2) requires the judge when giving the direction to:

(a) warn the jury that the evidence may be unreliable; and
(b) inform the jury of matters that may cause it to be unreliable; and
(c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.

The trial judge need not comply with the request if there are good reasons for not doing so (s 165(3)), and it is not necessary that a particular form of words be used in giving the warning or information.

37 There was no discussion of these provisions in the joint judgment in the Azzopardi case, but the general thrust of that judgment is that an accused person must not effectively be forced to give evidence by reason of the nature of the directions which may be given if he does not. This type of hearsay evidence of the version given by the accused to the police when interviewed is always led in the Crown case whether or not the accused intends to give evidence. If he does give evidence, then a direction in accordance with s 165(2) would be reasonable — subject only to any specific “good reason” which applies in the particular case. Where, however, the accused has not given evidence, it will be for the trial judge in the particular case to perform the delicate exercise of determining whether his decision not to give evidence is a good reason in that particular case for not doing so.

38 The direction in the present case was not given with s 165 in mind. Although it did not include any express suggestion that, by reason of its hearsay nature, such evidence is in fact of less weight than sworn evidence by the accused, that is how it would probably have been interpreted by the jury. Section 165(2) says that the warning should be that the hearsay evidence “may” be unreliable. A warning such as that given in the present case has been approved as not infringing the restrictions imposed in the Azzopardi case where the judge had expressly told the jury that hearsay evidence did not have the same evidential value as evidence given in court: Mule v The Queen [2004] WASCA 7 at [12-19]. Western Australia does not have any provision along the lines of s 165. The Court of Criminal Appeal of that State found justification for the direction in a decision of the House of Lords: Regina v Sharp [1998] 1 WLR 7. However, it should be noted that an appropriate warning was described by the House of Lords in that case (at 12) as drawing the attention of the jury to the different weights “they may think it right to attach” to hearsay evidence of the accused’s explanation as opposed to such evidence of his or her admissions, rather than suggesting that it is in fact of less weight. (I have added the emphasis in the quotation.)

39 This issue was not argued in the present appeal, but judges who intend to give such a warning would — in the light of the requirement of s 165(2) that the warning is that the hearsay evidence “may” be unreliable — do well to leave to the jury the issue of the weight actually to be given to the hearsay evidence in the particular case before them.

40 The appellant has also sought leave to appeal against her sentence of imprisonment for nine years, with a non-parole period of six years and eleven months.

41 The crime was a serious one. Any child not quite two years old, as was the child in this case, is in a very vulnerable situation, and is quite unable to protect itself or to communicate fully with other persons when in a position it is too young to understand. The responsibility of a parent or carer is great, and causing the death of a child by a dangerous and unlawful act constitutes a very serious breach of the position of trust which the appellant had accepted as the carer of this child. The appellant, who was then thirty years of age and who had had the care of children of her own, would necessarily have known of the danger involved in shaking a child as young as this one.

42 The appellant makes a number of complaints concerning the judge’s remarks on sentence. He referred to certain matters of aggravation identified in s 21A(2) of the Crimes (Sentencing Procedure) Act 1999, without either accepting or rejecting them expressly. Sentencing judges should be careful to make it clear whether or not they accept the Crown’s submissions: Regina v Wickham [2004] NSWCA 193 at [31]. It will usually be the case that, if a judge does not expressly reject the matters to which reference is made, it will be taken on appeal that the judge accepted them. That is the approach which should be adopted in the present case.

43 Section 21A(2) provides that the aggravating factors to which it refers are not to be taken into account where the particular factor is in itself an element of the offence. The Crown concedes that the judge was in error when he took into account the actual use of violence (s 21A(2)(b)), as that was the whole basis of the Crown case on manslaughter by an unlawful and dangerous act. The appellant submits that the judge was in error in taking into account the fact that the act of the appellant “resulted in the death of a child”, as that, too, is an element of the offence. However, although the death of a person was an element of the crime, the relevant matter of substantial aggravation in this case was that it was the death of a child. That is clearly all that the judge was taking into account, and he was correct in doing so.

44 The Crown also conceded that the judge made a mathematical error by setting the non-parole period of six years and eleven months when he had apparently not intended to make the non-parole period greater than 75% of the head sentence. The period should have been six years and nine months.

45 The judge accepted the need for public deterrence, particularly in cases involving the death of a young child. He noted that the appellant had shown no contrition or remorse. At the same time, as I have already stated, the judge rejected many of the Crown’s arguments on sentence. This was a necessary consequence of his interpretation of the jury’s verdict. He rejected the Crown case that the appellant had acted alone, that the substantial injuries inflicted by the appellant’s husband the previous evening were also a causative factor in the child’s death, that the acts of the appellant demonstrated deliberate cruelty on her part and that she had been guilty of culpable delay in seeking medical attention. He said that there was no suggestion in the evidence of ill-treatment of the child by the appellant.

46 There appears to have been no detailed examination during the trial of a possible situation where the shaking of the child caused the child’s death by reason only of the pre-existing injuries caused by the appellant’s husband. The trend of the evidence was that the injuries caused by her husband had not themselves had any bearing upon the child’s death, and this is the way the judge viewed the facts for the purposes of sentencing the appellant. The way the trial was conducted could have denied to the appellant any mitigation upon the basis that less force was required to cause the child’s death than might otherwise have been required. The onus of establishing matters in mitigation, however, lay on the appellant. The effect of that possibility upon the sentence was nevertheless minor in this case because of two other factors.

47 The judge did not take into account any of the substantial injuries which the appellant’s husband had caused to the child the night before. In the light of the evidence this was correct. Moreover, the judge made no express finding as to the extent of the violence which was in fact inflicted upon the child. The medical evidence was that not very much violence was required to cause death in a Shaken Baby Syndrome case. In the absence of any express finding by the judge on this issue, it is appropriate in this appeal to assume in favour of the appellant that the extent of her violence was sufficient only to cause the child’s death.

48 The judge also made a number of findings relevant to mitigation in addition to his rejection of the Crown case to a significant extent. He stated that the appellant and her husband, contrary to the appellant’s hopes and expectations, were unable to cope with the child, and that she found herself in a situation for which she was insufficiently trained and temperamentally and personally unsuited. (The remarks on sentence used the word “temporally”, but it was agreed that this should read “temperamentally”.) The judge found that the appellant was, in hindsight, unsuited to the task of foster care and that it was only a matter of time before it would have become clear that she was demonstratively unable to cope with her responsibilities. He accepted that the appellant had had a troubled childhood and previous marriage, but was in a satisfactory marriage with her current husband. She had become a foster carer because, as a result of injuries she had received from her previous husband resulting in the need for a hysterectomy, she was unable to have children with her new husband. Following depression at the time of leaving her first husband, and against a background of previous emotional and physical domestic abuse, she had sought to make good by fostering this child and his older sister. The judge found that, when the appellant was unable to cope with this child, and realised that the fostering did not give her the satisfaction she craved, her sudden frustration and irritability with the child that morning resulted in his injury and death.

49 The principal attack upon the sentence imposed is that the trial judge proceeded on an understanding that there was a recognised range of sentences for the manslaughter of very young children by the unlawful and dangerous act of parents or carers where the accused’s plea of guilty of manslaughter has been accepted in satisfaction of a charge of murder. He saw this range as being of between five and ten years’ imprisonment. The judge effectively followed his own statement in those terms in Regina v Hoerler [2003] NSWSC 1187. No previous case was discovered where the matter had gone to trial on a charge of murder relating to a young child resulting in a verdict of manslaughter. The judge held that, in such a case, the range should be imprisonment from six to twelve years. However, the judge’s understanding that there was a recognised range in relation to a manslaughter plea was subsequently held by this Court to be erroneous: Regina v Hoerler [2004] NSWCCA 184 at [36]. So various are the circumstances of such cases and so wide the degrees of culpability involved in them, there can be no such recognised range. This had also been stated by this Court many years earlier: Regina v Blacklidge (Court of Criminal Appeal, unreported, 12 December 1995) at [4]. In Hoerler, this Court substantially increased the sentence which the judge had imposed.

50 It follows that, in the present case also, the judge misdirected himself by having regard to an erroneous range of sentences when he imposed a sentence exactly midway within the range he had adopted in Hoerler. The Crown has submitted that the sentence imposed is nevertheless an appropriate one in the circumstances of this case. However, just as the rulings by this Court in Blacklidge and Hoerler demonstrate the judge’s error as to the top of the range he identified, so do those rulings demonstrate an error by the judge as to the bottom of that range. There must necessarily therefore be an error in his selection of a sentence exactly midway within that erroneous range.

51 No basis has been demonstrated by either party for interfering with the relevant findings of fact made by the judge in the sentencing process. Errors have nevertheless been demonstrated in relation to the range which the judge understood to exist in this class of case, in apparent double counting in one matter of aggravation and in the mathematics of setting a non-parole period which was 75% of the head sentence. In my opinion, the appropriate head sentence in this case would be one of six years. The appellant spent a period of six weeks and three days pending her trial sentencing. The judge backdated the sentence to commence on 28 October 2003, and the new head sentence should also be backdated in that way.

52 The appellant also seeks a finding that special circumstances existed warranting a non-parole period less than 75% of the head sentence. This is based on the finding by the trial judge that:

Since [the applicant’s] incarceration following the trial, [her] condition has deteriorated. She is able to receive medication which helps the condition, but she cannot receive the long-term intensive therapy which is needed. Her condition is not likely to be helped by the fact that she is kept in segregation, with no contact at all with other prisoners, and that situation is likely to continue.

and on the fact that this is the appellant’s first custodial experience: Griffiths v The Queen (1989) 167 CLR 372 at 379.

53 The judge, however, expressly took into account the rigorous conditions of imprisonment in which the sentence would be administered when determining the head sentence he imposed (as have I in relation to the new head sentence). Such considerations are therefore also taken into account when the non-parole period is set in accordance with the statutory proportion, and any ascertainment of special circumstances must travel beyond what was considered in determining the head sentence: Regina v Simpson (2001) 53 NSWLR 704 at [67] – [68]; Regina v Fidow [2004] NSWCCA 172 at [18]. The judge made it clear that he was aware that the custodial experience will be a harsher one for the appellant than it would be for a prisoner in a less strict custodial environment (as am I). Prisoners found guilty of serious offences involving the death of a child usually do have to be kept in such conditions for their own protection from other prisoners. The judge accepted that the appellant’s psychiatric condition may well continue to deteriorate in such an environment. The basis upon which the judge rejected any finding of special circumstances was that the appellant’s prognosis was not sufficiently clear to lead him to the belief that a shorter non-parole period “might affect some beneficial change in the offender’s condition and conduct”.

54 I see no error in the approach which the judge took, and I would adopt the same approach in the re-sentencing exercise which this Court must now undertake. I am not satisfied that special circumstances exist.

55 I propose that leave be granted to appeal against sentence, the appeal be upheld, the sentence of imprisonment for nine years be quashed, a new head sentence of imprisonment for six years commencing on 28 October 2003 be imposed and a non-parole period of four years and six months be set. The earliest day on which the appellant will become eligible for release on parole will be 28 April 2008.

56 GROVE J: In this appeal I have read, in draft form, the judgment of Hunt AJA. I agree with that judgment but, as on one issue there is a conclusion expressed that a previous judgment of this Court ought not to be followed (Regina v Macris [2004] NSWCCA 261) I consider it desirable to record my specific assent in that regard.

57 As his Honour has collated, it has been held in a series of cases in this Court that it does not in every circumstance constitute error for a judge charging a jury when the accused has elected not to give evidence, to refrain from incanting all four elements of warning articulated in the joint judgment in Azzopardi v The Queen 2001 205 CLR 50 @ 51: See Regina v Richards [2002] NSWCCA 38; Regina v SMR [2002] NSWCCA 258; Regina v Park [2003] NSWCCA 203.

58 In that Macris may be understood to endorse an approach different from those authorities, I am also of opinion that it should not be followed. I am further in agreement with his Honour’s comments on the implementation of Rule 4 of the Criminal Appeal Rules. The appeal against conviction should be dismissed.

59 For the reasons which he has given, leave to appeal against sentence should be granted and the sentence proposed by Hunt AJA substituted for that imposed at first instance.

60 JAMES J: I agree with Hunt AJA.

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