R v Dover [2001] NSWCCA 412

New South Wales Court of Criminal Appeal

CITATION : R v Dover [2001] NSWCCA 412 FILE NUMBER(S) : CCA 60232/99 HEARING DATE(S) : 11 October 2001 JUDGMENT DATE : 11 October 2001

PARTIES : Regina v Craig Scott Dover JUDGMENT OF : Stein JA at 12; Studdert J at 1; Greg James J at 13

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/21/0147 LOWER COURT JUDICIAL Nield DCJ OFFICER :

COUNSEL : W.G. Dawe QC (Crown) P.J.D. Hamill (Appellant) SOLICITORS : S.E. O'Connor (Crown) Kremer Townsend Lawyers

LEGISLATION CITED : Criminal Appeal Act RPS v The Queen (2000) 199 CLR 620 CASES CITED: Azzopardi v The Queen; Davis v The Queen (2001) 179 ALR 349 Weissensteiner v The Queen (1993) 178 CLR 217 DECISION : Appeal allowed.

IN THE COURT OF CRIMINAL APPEAL 60232/99 STEIN JA STUDDERT J GREG JAMES J

Thursday 11 October 2001 REGINA v CRAIG SCOTT DOVER

JUDGMENT 1 STUDDERT J: This is an appeal against conviction. 2 The appellant stood trial in February 1999 charged with malicious wounding with intent to do grievous bodily harm. The jury found the appellant guilty as charged on 16 February 1999 and on 5 May 1999 the appellant was sentenced to a minimum term of five years penal servitude to date from 3 July 1997 and to expire on 2 July 2002, and an additional term of two years four months to commence on 3 July 2002 and to expire on 2 November 2004. 3 The grounds of appeal, as expressed in the document filed, were as follows: "1. The trial miscarried as a result of the learned trial judge's directions to the jury regarding the election of the appellant not to give evidence in the trial. Particulars i) The learned trial judge erred in directing the jury it could 'accept more readily the complainant's evidence'. ii) The learned trial judge erred in directing the jury that 'any doubt' as to the complainant's evidence could be 'more readily discounted'. iii) The direction implied 'denial or contradiction' may not be available to the appellant." 4 It is unnecessary to do more than to refer very briefly to the outline of the evidence. Critical to the Crown case was the evidence of the alleged victim of the shooting who asserted that the appellant, in the course of a drug transaction, shot him in the face from close range, having positioned his car alongside the car in which the victim was seated at the time. The victim's credibility was attacked at the trial and the victim did not identify who shot him when first interviewed by police. Through evidence of the appellant's father, an alibi defence was raised. The appellant did not give evidence. 5 In the course of his summing-up the trial judge gave the jury directions concerning the circumstance that the appellant gave no evidence before them. The grounds of appeal above stated were prompted by the following directions appearing at pp 18-19 of the summing-up: "In this trial, members of the jury, the accused elected to say nothing. He decided not to give evidence. He exercised his right to remain silent. Members of the jury, because he has decided not to give evidence, a right given by law to every member of the community, you must not think that he decided not to give evidence because he is, or he believes himself to be, guilty of either of the offences, that contained in the indictment or its alternative, with which he stands charged. Members of the jury, it would be completely wrong of you to think that. The accused's decision not to give evidence must not be thought by you to be an admission of guilt on his part. That is because, members of the jury, there may be many reasons why an accused person may decide not to give evidence. I tell you, members of the jury, you must not speculate as to why the accused decided not to give evidence. However, members of the jury, when assessing the value of the evidence presented by the Crown you are entitled to take into account the fact that the accused did not deny or contradict evidence about matters which you might think were within his personal knowledge and of which he could have given evidence from his personal knowledge. This is because, members of the jury, you may think that it is logic and commonsense that where only two persons are involved in some particular thing, so that there are only two persons able to give evidence about that particular thing, and where one person's evidence is left undenied or uncontradicted by the other person, any doubt which may have existed about that person's evidence, the evidence of the one who gives evidence; may be more readily discounted and that person's evidence may be more readily accepted as the truth. If, members of the jury, you are satisfied that the accused could have given evidence from his knowledge of events about which the complainant, Mr Costello, has given evidence, and if you think that it is reasonable to expect a denial or contradiction to be given by the accused, if such denial or contradiction was available, then you are entitled to use the accused's decision not to deny or to contradict the evidence of the complainant as a circumstance which leads you to accept more readily the complainant's evidence. However, having said this, I tell you this, you are not entitled to use the accused's decision not to give evidence in order to fill in any gaps which you may see in the evidence. As I have said, the only way in which you are entitled to use the accused's decision not to give evidence is in assessing the value of the evidence given by the complainant, Mr Costello. As the learned Crown Prosecutor put to you, the absence of any evidence from the accused in denial or contradiction of the evidence of the complainant as to what the accused said or did means that there is nothing whatsoever to support any suggestion which was put to the complainant in cross-examination by the accused's counsel." 6 It is to be observed that the directions above set out were given to the jury on 15 February 1999, almost twelve months before the decision of the High Court in RPS v The Queen (2000) 199 CLR 620. The appeal in the present case was listed for hearing in this court, although then differently constituted, on 25 October 2000, but its hearing was then adjourned to await the then pending decisions of the High Court in Azzopardi v The Queen and Davis v The Queen (2001) 179 ALR 349. Judgments in those matters were delivered on 3 May 2001. The High Court considered its earlier decisions in RPS and in Weissensteiner v The Queen (1993) 178 CLR 217. In each of the appeals in Azzopardi and Davis, the High Court, by majority, determined that the directions given by the trial judge concerning the accused's failure to give evidence constituted misdirections. 7 In the joint judgment of Gaudron, Gummow, Kirby and Hayne JJ in Azzopardi, their Honours distinguished RPS and Weissensteiner at paras 57-63, and then went on to say, at 64: "There may be cases involving circumstances such that the reasoning in Weissensteiner will justify some comment. However, that will be so only if there is a basis for concluding that, if there are additional facts which would explain or contradict the inference which the prosecution seeks to have the jury draw, and they are facts which (if they exist) would be peculiarly within the knowledge of the accused, that a comment on the accused's failure to provide evidence of those facts may be made. The facts which it is suggested could have been, but were not, revealed by evidence from the accused must be additional to those already given in evidence by the witnesses who were called. The fact that the accused could have contradicted evidence already given will not suffice. Mere contradiction would not be evidence of any additional fact. In an accusatorial trial, an accused is not required to explain or contradict matters which are already the subject of evidence at trial. These matters must be assessed by the jury against the requisite standard of proof, without regard to the fact that the accused did not give evidence." 8 The Crown has now conceded on the present appeal that following these two most recent decisions of the High Court in Azzopardi and Davis, it would be appropriate for this Court to allow the appellant's appeal. That is a proper concession. It has not been suggested, nor can it be suggested, that there were any circumstances in the present case such as would justify some comment on the appellant's failure to give evidence, on the application of the reasoning in Weissensteiner. The errors made by the trial judge in the summing-up in RPS, as identified and conveniently restated in Azzopardi (at para 57), were the following: "(1) that the accused's election not to contradict certain evidence given by a witness for the prosecution of what was said to be a partial admission of the accused could be taken into account by the jury in "judging the value of, the weight of", that evidence; (2) that in the absence of denial or contradiction of the evidence of the partial admission the jury could "more readily" discount any doubts about that evidence and "more readily" accept it; (3) that if it was reasonable, in the circumstances, to expect some denial or contradiction of the prosecution evidence, the jury were entitled to conclude that the accused's evidence would not have assisted him at his trial and that the absence of denial or contradiction was a circumstance which could lead them more readily to accept the evidence given by the witnesses for the prosecution; (4) that the accused's election not to give evidence could not fill any gaps in the prosecution case but could enable the jury to feel more confident in relying on the evidence tendered by the prosecution; and (5) that the absence of evidence from the accused meant that the version of events put in cross-examination of the witnesses for the prosecution was not supported by evidence." 9 The conclusion is inescapable that the summing-up in the case concerning the present appellant was erroneous in respects identified as such in RPS and in Azzopardi. 10 Moreover, this is not a case in which the proviso in s 6 of the Criminal Appeal Act could operate. On the present state of the law as defined in the High Court, there were significant misdirections concerning the failure of the appellant to give evidence. 11 It follows that the appeal should be allowed and I propose the following orders: