Sever v R [2007] NSWCCA 339

Reported Decision: 179 A Crim R 110

New South Wales Court of Criminal Appeal

CITATION: Sever v R [2007] NSWCCA 339

HEARING DATE(S): 6 December 2007 JUDGMENT OF: Grove J at 1; Hulme J at 17; Simpson J at 18

EX TEMPORE JUDGMENT DATE: 6 December 2007

DECISION: Appeal allowed.; Conviction quashed.; New trial ordered.

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - Trial - Failure to caution jury concerning election of accused not to give evidence - Omission due to oversight - No request by counsel - Direction required in circumstances - Evidence of sample selection following pointing to locations by trained dog - No error in admission of evidence - No special warning required as probative evidence was sample analysis not site selection

Azzopardi v The Queen (2001) 205 CLR 50 CASES CITED: R v Benecke [1999] NSWCCA 163 R v Johnston [2007] NSWCCA 133

PARTIES: Zoran SEVER (Applicant) REGINA (Respondent)

FILE NUMBER(S): CCA 2007/3047

COUNSEL: P Byrne SC (Appellant) P Miller (Respondent)

SOLICITORS: Jaleh Johannessen (Appellant) S Kavanagh (Public Prosecutions)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/11/0109

LOWER COURT JUDICIAL OFFICER: Hulme DCJ

IN THE COURT OF CRIMINAL APPEAL CCA 2007/3047

GROVE J HULME J SIMPSON J

6 December 2007 Zoran SEVER v REGINA Judgment

1 GROVE J: This is an appeal against conviction following a trial before Hulme DCJ and a jury at Sydney District Court. The indictment charged a single count of dishonestly destroying property by means of a fire with a view to making a gain (arson). The trial commenced on 19 March 2007 and the jury returned its verdict on 2 April 2007. The appellant was then placed in custody but on 22 June 2007 Hulme DCJ ordered his release on conditional bail. Sentence has not yet been passed. 2 In short, the Crown alleged that business premises owned by a company of which the appellant was the sole director were destroyed by fire in the early hours of the morning of 1 June 2004. There was evidence of the presence of accelerant having been applied to the premises, that the appellant had shortly before the fire substantially increased the insurance cover on the building, of the appellant's financial situation and need for funds and the closing of the premises and departures therefrom on the evening prior to the fire. In proof of its case the Crown also relied upon lies asserted to have been told by the appellant as evidencing a consciousness of his guilt. He had been interviewed by police and also by an insurance claims assessor. There is no complaint about the correctness or adequacy of the directions given by his Honour in regard to the use that the jury might make of any finding that the appellant had lied. 3 Two grounds of appeal are advanced. Ground one is expressed thus: "The trial proceedings miscarried by reason of the omission of the trial judge to give the jury a direction in accordance with Azzopardi v The Queen (2001) 205 CLR 50 as to the use which might be made by the jury of the fact that the appellant did not give evidence in the trial. The appellant relies on the decision of this Court in R v Johnston [2007] NSWCCA 133." 4 The appellant did not give evidence. There is no dispute that in his charge to the jury his Honour made no mention of this fact and hence gave no warning or caution to the jury about the absence of evidence from the appellant. 5 The much quoted passage from the majority judgment in Azzopardi (Gaudron, Gummow, Kirby and Hayne JJ) at p 70 reads: "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. ". 6 Given their Honours' expression "will almost always be desirable" an issue arises whether the current case is one where the omission has or has not given rise to miscarriage. 7 As above noted, the trial commenced on 19 March 2007. Johnston, cited in the ground of appeal, was decided in this Court on 14 March 2007. We have been informed that Hulme DCJ became aware of the decision after the trial and drew it to the attention of counsel. In Johnston the critical issue at trial was whether a victim of assault had correctly identified the accused as one of his assailants. He had not given evidence but in address his counsel pointed out that he was content to rely upon what he had said in a video taped interview by police which was before that jury. Counsel said that she anticipated that the presiding judge would give some directions about the right of the accused to remain silent but in the event he did not refer to the matter. Neither counsel at trial drew attention to this omission. 8 A further aspect of similarity to the present case was that in Johnston, the Crown also relied upon an asserted telling of a lie by the accused. Johnston's conviction was quashed and a new trial ordered. 9 The Crown has sought to distinguish Johnston on several bases. First, it was pointed out that in the present case neither counsel (nor the Judge) said anything about the absence of evidence from the appellant in contrast with the mention by counsel in her address in the case of Johnston. Second, it was submitted in the present case nothing was said which drew attention to the fact that the appellant had not given evidence. In fact witnesses (the appellant's wife, mother-in-law and a business associate) had been called in the defence case and the absence of the appellant must have been glaringly obvious to the jury. Third, as counsel sought no direction even though his Honour made the usual enquiry at the end of his charge to the jury as to whether anything further was desired by counsel, it "may also indicate that counsel at trial saw some tactical advantage in not having the matter brought to the jury's attention." Like McClellan CJ at CL in Johnston who responded to a similar submission, I cannot contemplate what tactical advantage might be perceived. I cannot identify a reason why the appellant would be well served by the omission of the caution suggested in Azzopardi. 10 In any event we have received without objection an affidavit by counsel who appeared at trial. That affidavit shows that the failure to ask for directions was an oversight and not a deliberate tactic by the accused. 11 I accept that the giving of such caution is not mandatory in every case. The extract from the joint judgment above quoted makes that plain. Nevertheless the ultimate question is whether, given the omission in the particular case, the appellant has lost a fair chance of acquittal and I would answer that question in the affirmative. 12 Ground 2 is expressed: "The evidence of the witness Phillip Etienne (transcript 20 March 2007 at 55 – 75) relating to the activities of a dog by the name of Ellie should not have been admitted." 13 The dog Ellie was trained to detect accelerants and her responses were used as a screening tool to point forensic police to places from which samples might usefully be gathered. After gathering the samples were taken and later analysed. It was the analysis that demonstrated the presence of accelerant. This was the potentially probative evidence and not any action observed to be being undertaken by the dog. 14 The appellant relied upon R v Benecke [1999] NSWCCA 163. That case concerned evidence of the behaviour of a tracker dog. The dog had appeared to follow a scent from the scene of a robbery at a service station to the rear of the fence of premises where the accused person had resided until a few months before the robbery. It was held that the evidence of the dog's behaviour was of little probative value and, if admitted, should have been accompanied by particular warnings, notably that the dog could not be cross-examined and care should be taken not to overstate the reliability of the operation of canine senses. 15 The evidence concerning Ellie was merely part of a chain of events which led to the selection of locations at which samples were taken. It was appropriate in the interests of continuity for the Crown to call that evidence but as the evidence of probative value was the result of analysis of the sample taken, it could not have mattered whether the samples were taken randomly or as a result of being pointed to them by the dog. 16 I would reject ground 2. However, in the light of my conclusion on ground 1 I propose the following orders: