RPS v The Queen [2000] HCA 3

HIGH COURT OF AUSTRALIA

GAUDRON ACJ,

McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

RPS APPELLANT

AND

THE QUEEN RESPONDENT

RPS v The Queen [2000] HCA 3

3 February 2000

S116/1998

ORDER

1. Appeal allowed.

2. Set aside the order of the Court of Criminal Appeal of New South Wales made on 13 August 1997.

3. In place thereof, order that the appeal against convictions to the Court of Criminal Appeal of New South Wales be allowed, the convictions quashed and that there be a new trial on counts 4, 6, 7 and 8 of the indictment.

On appeal from the Supreme Court of New South Wales

Representation:

A J Bellanto QC with B J Rigg for the appellant (instructed by Uther Webster & Evans)

M G Sexton SC, Solicitor-General for the State of New South Wales with A M Blackmore for the respondent (instructed by Solicitor for Public Prosecutions (New South Wales))

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

RPS v The Queen

Criminal law – Evidence – Silence of the accused – Directions to jury – Circumstances in which jury may take account of accused's failure to give evidence.

Criminal law – Judicial instructions – Instructions about reasoning towards guilt.

Courts and judicial system – Apprehension of judicial bias – Tension between trial judge and counsel at trial – Use of trial judge's report by appeal court.

Words and phrases – "right to silence".

Criminal Appeal Act 1912 (NSW), s 11.

Evidence Act 1995 (NSW), s 20.

1. GAUDRON ACJ, GUMMOW, KIRBY AND HAYNE JJ. The appellant was charged, in the District Court of New South Wales, with two counts alleging that he had had carnal knowledge[1] of his daughter and six counts alleging that he had had sexual intercourse[2] with her. The offences were alleged to have occurred between various dates, the earliest of which was 6 February 1983 (when the complainant was four years old) and the latest of which was 31 July 1993 (by which time the complainant was 14 years old). He pleaded not guilty. The trial judge directed the jury to acquit the appellant of one of the charges of sexual intercourse; the jury returned verdicts of guilty to four of the remaining five counts of sexual intercourse and verdicts of not guilty to the other count of sexual intercourse and the counts of carnal knowledge. 2. The appellant appealed to the Court of Criminal Appeal of New South Wales against his convictions but that appeal, and his application for leave to appeal against sentence, were dismissed[3]. By special leave, he now appeals to this Court. 3. The determinative issue in this appeal is what comments or directions a trial judge can make or give to a jury when an accused person does not give evidence. In order to understand the context in which that issue arises in this matter, it is necessary to say something about the course of the appellant's trial. It is convenient, while describing what happened at the trial, to notice briefly some of the other issues that were argued in the appeal.