Azzopardi v The Queen [2001] HCA 25

HIGH COURT OF AUSTRALIA

GLEESON CJ,

GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

JOSEPH AZZOPARDI APPELLANT

AND

THE QUEEN RESPONDENT

Azzopardi v The Queen [2001] HCA 25

3 May 2001

S105/2000

ORDER 1. Appeal allowed. 2. Set aside the orders of the Court of Criminal Appeal of New South Wales dated 1 October 1998 and in lieu thereof order that: 3. the appellant's appeal to that Court be allowed; 4. the appellant's conviction be set aside; and 5. there be a new trial.

On appeal from the Supreme Court of New South Wales

Representation:

P Byrne SC with J W Fliece and G A Bashir for the appellant (instructed by Patricia White & Associates)

R D Ellis with R A Hulme for the respondent (instructed by S E O'Connor, Director of 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.

HIGH COURT OF AUSTRALIA

GLEESON CJ,

GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

BRIAN DAVIS APPLICANT

AND

THE QUEEN RESPONDENT

Davis v The Queen

3 May 2001

S39/2000

ORDER

Application for special leave to appeal refused.

On appeal from the Supreme Court of New South Wales

Representation:

T A Game SC with S J Odgers SC for the applicant (instructed by Legal Aid Commission of New South Wales)

R D Ellis with R A Hulme for the respondent (instructed by S E O'Connor, Director of 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

Azzopardi v The Queen

Davis v The Queen

Criminal law – Evidence – Accused not giving evidence – Right to silence – Distinction between comment and direction by trial judge – Circumstances where comment permissible.

Criminal law – Evidence – Accused not giving evidence – Right to silence – Nature of permissible comment by trial judge – Comment that accused did not deny or contradict evidence already given about matters within his personal knowledge not permissible – Suggestion that accused did not give evidence because the accused was, or believed that he was, guilty of the offence concerned – Contravention of Evidence Act 1995 (NSW), s 20(2).