Reported Decision : (2002) 128 A Crim R 204 New South Wales Court of Criminal Appeal CITATION : R v Richards [2002] NSWCCA 38 FILE NUMBER(S) : CCA 60635 of 2000 HEARING DATE(S) : 13 February 2002 JUDGMENT DATE : 28 February 2002 PARTIES : REGINA v WILLIAM JOHN RICHARDS JUDGMENT OF : Hodgson JA at 1; Levine J at 2; Howie J at 43 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/61/0020 LOWER COURT JUDICIAL Coleman DCJ OFFICER : W Dawe QC (Crown) COUNSEL : A Haesler (Appellant) S E O'Connor (Crown) SOLICITORS : D J Humphreys (Appellant) CATCHWORDS : Directions - no evidence of any statement by accused upon arrest - accused gives no evidence at trial - absence of directions - no application for directions - trial counsel's affidavit - whether miscarriage of justice Azzopardi v R [2001] HCA 25; (2001) 179 ALR 349; (2001) 119 A Crim R 8 Grey v R [2001] HCA 65 OGD (1997) 45 NSWLR 744 CASES CITED: Queen v Bozkus [2001] NSWCCA 68 R v Moussa [2001] NSWCCA 427 Regina v Bozzola [2001] NSWCCA 8 Regina v Giri [2001] NSWCCA 197 RPS (2000) 199 CLR 620 DECISION : Conviction appeal dismissed - Leave granted for sentence appeal, appeal dismissed. IN THE COURT OF CRIMINAL APPEAL 60635 of 2000 HODGSON JA LEVINE J HOWIE J 28 February 2002 REGINA v RICHARDS William John Judgment 1 HODGSON JA: I agree with Levine J. 2 LEVINE J: On 31 May 2000, the appellant, William John Richards and his cousin, Kevin Claude Richards, were indicted before his Honour Judge Coleman in the District Court at Dubbo charged with robbery in company. On 5 June 2000 the jury found the appellant guilty, he was convicted and on 1 September 2000 sentenced to a term of imprisonment which is the subject of an application for leave to appeal. 3 It was the Crown case that a Ms Kim Lyons (who did not appear at trial) befriended the victim Mr Ballity at a hotel in Dubbo. This was part of a joint enterprise which was to result in Mr Ballity being robbed. William and Kevin Richards were also in the hotel and spoke with the victim and Ms Lyons who was known to them. Ms Lyons then lured the victim outside the hotel where he was set upon by her, a man with a goatee beard, another with a cap and possibly a third man. A fourth man with a crew cut stood by. 4 On the second day of the trial the Crown discontinued proceedings against Kevin Richards on his undertaking to give evidence against the appellant. 5 Kevin Richards gave evidence substantially in accordance with that of Mr Ballity. He, however, claimed that initially Ms Lyons in the presence of all said 'give us your fucking money' and identified William, the appellant, as the man who punched Ballity to the lip and took his keys and phone. 6 It was the Crown case that the appellant was identified by Mr Ballity as the man with the cap and Kevin as the 'crew cut' who stood by. Mr Ballity offered his wallet which Kevin and 'goatee' went through. He said the two men also went through his pockets. There was no money. Keys, a phone and gold chains were taken. The police were called and soon after Mr Ballity pointed out to them 'cap' (William) as the man who 'punched him' and 'crew cut' (Kevin) as the 'man who watched". Both were arrested. 7 There were, it is said, no admissions by the appellant. There was no evidence of any interview by police. His cousin Kevin Richards was interviewed and the video of that interview was tendered at trial. 8 The principal issues at trial were identification, and the appellant's and Kevin's respective roles and the nature of the joint enterprise. The victim said the man in the cap was blonde however the appellant was not, and is not blonde, so it is said in the written submissions. 9 The appellant did not give evidence at trial. 10 The amended grounds of appeal are: 1. That the trial judge erred in failing to direct and warn the jury that the accused's refusal to be interviewed by police could not be used as admission or inference of guilt. 2. That the trial judge erred in failing to direct and 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. 11 At the outset it must be stated that no application was made at any time for the giving of either of the directions the absence of which is now the subject of complaint. It is to be noted also that at the close of the evidence his Honour raised with Counsel in some detail the question of specific directions. 12 In the course of argument before this Court, Mr Haesler (who did not appear at the trial) evolved the following proposition in his submissions: there were three matters in, or components of, the trial which cumulatively constituted a flaw that went to the core of the proceedings such that a miscarriage of justice occurred and that his client lost the chance of an acquittal thereby precluding the refusal of leave under r 4 and ensuring, it was submitted, that the proviso to s 6 did not operate. These three matters, or components, were: first, that which is touched upon in the first pleaded ground of appeal; secondly, the risk that the jury would draw adverse inferences from the "usual practice" identified in the ERISP of the former co-accused in relation to cautions and the like; third, the matter that is the substance of the second ground of appeal. 13 As to the first ground of appeal and the first component, the only evidence in relation to any conversation between the appellant and the police was: "Q. Sir, at 1am on 25 November of 1999 did you see at the police station the accused William John Richards? A. That's correct, sir. Q. You spoke to Mr Richards? A. Yes sir. Q. And you charged him in relation to the matter disclosed within Mr Ballity's statement? A. Yes sir. Q. Did you form any opinion as to whether the accused William Richards was affected by alcohol? A. Yes, he too was moderately affected". 14 There was no evidence that the appellant "refused" to be interviewed. No other officer was examined or cross-examined on this aspect. The evidence cited above was that of Detective Senior Constable Mongan who, as it turned out, was the last witness in the trial. This, in effect, was the Crown response to the written submissions for the appellant. There was simply no evidence on the subject as encapsulated in ground 1. 15 A change in forensic position was required (described as "subtle") and it was contended for the appellant that the silence within the evidence itself required a direction to avoid the jury "misconstruing" and "misapplying" what the absence of any evidence of anything being said by the appellant "in his defence" in the course of what is referred to as the officer merely having spoken to him. That direction was articulated to the following effect: the fact that there was no evidence as to anything being said by the accused to the police when he was arrested does not allow the jury to draw any adverse inferences from that absence of evidence – no inference adverse to the appellant could be drawn from the fact that the evidence is silent as to anything at all being said by him at the time of his arrest. 16 Viewed by itself as the first component of three said to make up the fundamental flaw in the trial, I am not persuaded that the absence of any evidence at all on this subject would lead the jury, reasonably or unreasonably, to draw any inference against the appellant. The jury simply had no evidence before it of what happened. I am of the view that arguably any such direction could itself induce the speculation on the part of the jury which the direction seeks to proscribe. 17 As to the second element or component, what was referred to in submissions as "general practice" as would have been evidenced in this trial upon the tender of the former co-accused's ERISP, that, by itself or cumulatively to the first component, would have given rise, it is said, to an available inference that the appellant had said nothing and had exercised some right to silence compared to his cousin (Kevin) having declined to exercise any such right. 18 It is to be noted that the ERISP of Kevin Richards (Exhibit F) was admitted without objection during the course of the evidence given by the former co-accused following testimony given by that person as to the appellant making threats against him in the event that he "dobbed" the appellant in. I add that the former co-accused was cross-examined thoroughly by trial counsel as to his credit and as to, in particular, whether in fact he was lying to the police and as to his version of events in the ERISP. The ERISP and the evidence of the former co-accused was given before the evidence Officer Mongan who, as I said, was the last witness in the trial. 19 For myself I am not persuaded that the tender of the ERISP of the appellant's cousin by itself in the context of the structure of the trial as it evolved, in the light of the contents that received emphasis in cross-examination, and together with the first "component" on any rational basis could be characterised as giving rise to a risk of improper, adverse inferences. Such an approach is fanciful and unrealistically speculative. 20 As to the third component, the subject of a third ground of appeal, an affidavit was sworn by counsel who appeared at the trial. He had been supplied with a copy of the trial judge's Summing Up, the grounds of appeal, the submissions of counsel for the appellant in the appeal and of the Crown submissions in reply. He reviewed the grounds of appeal and his notes of the trial. He says: "I cannot recall precisely why I did not ask for a direction in relation to an accused's 'right to silence'. It is my usual practice to ask for a direction on an accused's 'right to silence' and as far as I can recall there was no tactical reason for not asking for the direction in Mr Richard's trial". 21 In this context it is appropriate to set out what Howie J said in R v Moussa [2001] NSWCCA 427 where an affidavit had been filed for the appellant in relation to alleged conduct of defence counsel. His Honour's general review of the principles is apposite: "[56] I have already indicated that in respect of this ground of appeal an affidavit by trial counsel was filed on behalf of the appellant. This is in accordance with a practice that has developed in relation to applications for leave under rule 4 of the Criminal Appeal Rules in respect of a point not raised at the trial. In R v Hines (1991) 24 NSWLR 737 at 743 Sully J, with whom the other members of the Court agreed, stated: 'For my own part, I consider that it should become the fixed practice of this Court that in a case where the person who is to appear for the appellant on the hearing of the appeal did not appear for the appellant at the trial, there should be filed an affidavit which puts before this Court such explanation as it might be desired to advance for the failure to take, at the proper time and in the proper form, at trial an objection upon which it is sought to rely on the hearing of the appeal. I feel very strongly that a failure on the part of this Court to take such a stand will detract seriously from the efficient administration of criminal justice according to law. That efficient administration of criminal justice requires imperatively, - although, no doubt, among other things, - the affording by the legal profession of proper assistance to trial judges. A fundamentally important aspect of that professional duty of assistance is the duty to take at the proper time and in the proper way proper objections to the trial judge's summing-up in a particular case. If, in a particular case, counsel or a solicitor representing an accused person simply overlooked the point at trial, then I can see nothing harsh or unreasonable in expecting that practitioner to own up to the oversight when the point is sought to be raised for the first time on appeal. If the practitioner has some other explanation of substance for the failure to take the point at trial, then, again, I can see nothing untoward in this Court's expecting to be told what the explanation might be. Such an approach applied consistently and sensibly by this Court would, I venture to suggest, instil into the conduct of criminal trials a degree of intellectual discipline, to say nothing of proper professional pride and responsibility, all of which qualities appear to me, if I may say, to be sadly lacking, not, to be sure, in all criminal trials, but certainly in a good many. [57] Unfortunately Sully J's hope that such a procedure would encourage counsel to fulfil their duty to assist the trial judge has not been realised to any significant degree, if at all. However, the importance of this type of material has been recognised by other members of this Court, although with some reservations, see R v Leonard (NSWCCA, unreported, 4 August 1993) but cf R v Bryant (NSWCCA, unreported, 27 June 1994). [58] It has been my experience, limited as it is, that counsel appearing for the appellant in this Court often consider that it is sufficient to justify the grant of leave under rule 4 that an affidavit is placed before the Court from trial counsel to the effect that, as best as counsel can recall, there was no tactical reason for the failure to take the point. Often trial counsel admits that he or she never thought to take the objection, or was unaware that a direction or warning, such as that raised on appeal, was required. Frequently the material simply indicates that counsel can no longer recall why he or she did not seek the direction or take the objection that is the subject of the ground of appeal. [59] It seems timely to repeat again what Hunt J had to say in R v Abusafiah (1991) 24 NSWLR 531 at 536: "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 nondirection 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 from counsel to which he or she is entitled in the 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 and if counsel for the accused to whose detriment the error fails to comply with his or her duties to draw the judge's attention to that error, any suggestion that such detriment automatically entitles the accused to a new trial does not strike a sympathetic chord in the hearts of those who see the right to a fair trial as operating in favour not only of the accused but also of the Crown which prosecutes on behalf of the whole community. The Criminal Appeal Act 1912 does not exist to enable an accused who has been convicted under one set of issues to have a new trial under a new set of issues which he could and should have raised at the first trial." [60] It may well be the case that, if the failure to seek a direction or warning was a result of a considered and competent decision made for tactical reasons, it would be virtually impossible for the appellant to obtain leave to rely upon the point because no miscarriage of justice could have occurred. But in my view it should not be taken to be the case that leave will automatically be granted simply because the proffered explanation is that counsel overlooked the point or was unaware of the law on the subject. Nor is it more likely that leave will be granted simply because counsel can no longer indicate why the point was not taken at the trial. [61] Nor can bald assertions by trial counsel that there was no tactical reason for a failure to take the point always be taken at face value. This is not to suggest that trial counsel would seek to mislead this Court, but counsel cannot be expected, many months after the event, to recall accurately the atmosphere of the trial or the circumstances in which decisions were made during the course of it. Tactical choices are often made on the spur of the moment as the trial takes on a certain complexion, for example, because of a change in the evidence in the Crown case. [62] Indeed, in light of the experience of this Court over the last ten years, of which the instant case is a good example, a real question arises as to whether the Court should any longer expect an appellant, seeking to overcome the impact of rule 4, to provide an explanation from trial counsel as to why the relevant objection was not taken or the relevant direction not sought. There may be rare occasions when real assistance can be derived from such material in amplification of the transcript. But generally speaking it seems to me to amount to no more than an imposition on trial counsel for little, or no, good purpose. [63] At the end of the day the question, with which this Court is concerned, is whether the conduct of the trial may have resulted in a miscarriage of justice and that question is not necessarily answered in favour of the appellant simply because of decisions, errors or oversights by counsel falling short of incompetence. Trial counsel has a duty both to the client and the Court to take objections or seek re-directions where appropriate: R v Roberts [2001] NSWCCA 163. Like other aspects of the conduct of defence counsel during the course of the trial, a failure to seek a direction or warning will not necessarily result in a miscarriage of justice, even if counsel was negligent: R v Birks (1990) 19 NSWLR 677 at 685. If leave is required under rule 4, then the applicant has to persuade this court that a miscarriage of justice may have occurred before leave is granted: Tripodina and Morabito (1988) 35 A Crim R 183 at 191; R v Williamson and Morrell (NSWCCA, 11 October 1991). On the other hand, if the point is taken at trial, the Crown will have the onus of persuading this Court that there had been no substantial miscarriage of justice: Clarke (1995) 78 A Crim R 226". 22 The affidavit of trial counsel is, in the end, unhelpful; it would be wanting in fairness unduly to speculate that there may have been good reason for counsel to depart from his "usual practice". The affidavit can be given no weight. 23 Although this trial was conducted before the decision of the High Court in Azzopardi v R [2001] HCA 25; (2001) 179 ALR 349; (2001) 119 A Crim R 8, the desirability of some direction being given to the jury when an accused is silent has been referred to in OGD (1997) 45 NSWLR 744 and RPS (2000) 199 CLR 620 (3 February 2000). 24 In Azzopardi (Gaudron, Kirby, Gummow, Haynes JJ) stated: "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" (emphasis added) [51]. 25 The appellant argues, neither direction (as referred to in the grounds of appeal and as evolved in submissions) having been sought, that r 4 should not be invoked or the proviso applied. The essential proposition in support of that position is that the failure to give the directions was "fundamental" and went to the heart of the trial. It is argued that it was critical to the issue of how the jury viewed the appellant and affected other key issues: was Kevin Richards giving a truthful account, was Ballity's identification accurate? (cf. Queen v Bozkus [2001] NSWCCA 68). Further the Court should not attempt to "second guess" what the jury might have done had they received a proper direction and it is argued that conviction was not inevitable. 26 The appellant relies upon what was said in Grey v R [2001] HCA 65 at [53]: "This Court has pointed out many times ( Wilde v R (1988) 164 CLR 365) that the proviso appears in a section that does not negate the fundamental principle of the administration of criminal justice in Australia. This is that no person should be convicted of a serious crime except (where applicable) by the verdict of a jury after a fair trial held according to law ( Jago v District Court (NSW) (1989) 168 CLR 23). If the trial ceases to be a fair trial according to law, the verdict of guilty, and the criminal conviction that follows it, is intrinsically flawed. It is then no part of the function of a court of criminal appeal to hold that the accused is "so obviously guilty that the requirement of a fair trial according to law can be dispensed with" ( Wilde v R ). The proviso has no application to such a case. Nevertheless, in a "relevantly fair trial" ( Mraz v R (1955) 93 CLR 493), error, impropriety or unfairness may occur that does not deprive the trial of its essential attributes as such. In those cases, the evaluation required by the proviso must be performed". 27 This trial, in my view, may be described as "relevantly fair," and the Crown case a strong one. It is desirable however to keep in mind that the first hurdle nonetheless remains whether the appellant can overcome r 4. 28 As I have said, and it bears repetition: no directions were sought on the subject matter of the grounds of appeal; no directions were sought on those matters in circumstances where his Honour took pains to ensure that the parties had an opportunity to make submissions to him, in accordance with their counsel's duty, on directions to be given to the jury. Indeed, his Honour's Summing Up cannot be criticised at all. 29 As I have observed, it is now contended that the failure to give the directions, as they evolved in the course of submissions, now went to matters fundamental to, or at the root of, the trial. The first observation that can be made, in my view, is that even in Azzopardi the High Court cannot be taken to have ruled that in every case it is compulsory let alone desirable, in terms of the fundamental requirements of justice, for a direction of the kind now sought, to be given. 30 Secondly, here this Court is concerned with the complete absence of directions. It must be borne in mind (though taking into account that each trial and appeal will depend upon its own circumstances), that misdirections on matters said to be "fundamental" neither necessarily nor as a matter of course can be characterised as going to the core of the trial or amounting to a fundamental defect: Azzopardi v The Queen [2001] HCA 25 at [76] and [83]; Regina v Bozzola [2001] NSWCCA 8 at [60]; Regina v Giri [2001] NSWCCA 197. 31 In the circumstances of the instant trial, the non-direction (as opposed to any misdirection) on the subjects of complaint, in the context of the trial's course, the weight of the evidence against the appellant, simply does not lead me to the view that there was an error that goes to the core of the matter or which amounted to a fundamental flaw, and an entitlement to leave under r 4. I have arrived at this conclusion by considering the components separately and by considering what is contended to have been their "cumulative effect". 32 The silence of an accused in a criminal trial can be viewed objectively as a matter of some significance. The right to that silence is a fundamental one. Just as not every misdirection about the right to silence will be such a fundamental irregularity that no proper trial should be regarded as having taken place, it does not necessarily follow that every occasion where there is an absence of any direction as to that right to silence will amount to such a fundamental irregularity; Azzopardi cannot be read as authority for such a proposition. 33 In the instant appeal I am thus not persuaded that the appellant has overcome the hurdle constituted by r 4. 34 Accordingly, I am of the opinion that the appellant's appeal should fail. 35 At the conclusion of the hearing of the appeal against conviction brief submissions were made in support of the appellant's application for leave to appeal against sentence. 36 The sentence imposed upon the appellant in respect of the offence of which he was found guilty and which carried a maximum penalty of 20 years imprisonment, was imprisonment for a term of five years to commence from 2 March 2000 and expire on 1 March 2005 with a non-parole period to expire on 1 March 2003. 37 The appellant could not submit, and did not submit, that the learned trial judge, fell into any error of law or sentencing principle or in approach. The submission was made to the effect that it was "altogether outside the range". 38 One of his Honour's remarks on sentence was as follows: " I am satisfied beyond reasonable doubt the prisoner was a willing participant in that joint criminal enterprise. He was also well affected by alcohol at the time that the offence took place, bu I am satisfied that he was well aware of what he was doing and what was intended and his intoxication provides no excuse or justification for what he did. However, I am satisfied that he was a follower in all this and was prepared to go along with the others. I accept his evidence that the woman was the one leading, but even so he was a willing and active participant in the robbery and during the course of it used force against Mr Ballity to achieve the purpose of the joint criminal enterprise" (emphasis added). 39 Emphasis was sought to be placed on the appellant being a "follower". By this submission I am not persuaded upon reading the remarks on sentence as a whole. 40 His Honour properly took into account the objective seriousness of the crime, the appellant's unhelpful antecedents and subjective circumstances referred to in the Probation and Parole Service report coming to the view: " I accept that he had a chaotic background without role models, but I also accept the submission that he is not beyond redemption, and I am also satisfied that there is a faint prospect of rehabilitation which should be encouraged if possible. I regard that as a special circumstance. He has expressed an intention to go into rehabilitation programme and upon release try and get work wood cutting. Since he has been in gaol he has at least been thinking about his future and is trying to make some plans for the future". 41 Bearing in mind that this is a sentence imposed after a trial, a fair consideration of the material available to the learned sentencing judge and the manner with which he dealt with it, leads me to conclude that not only was there no error of approach or principle, there is unavailable otherwise a view that the sentence imposed was beyond the range. It was proper and appropriate. 42 Accordingly I would propose the following formal orders: (a) that the appeal against conviction be dismissed; (b) that leave to appeal against sentence be granted, but that that appeal be dismissed. 43 HOWIE J: I agree with Levine J. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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