JOHNSTON v R [2007] NSWCCA 133

New South Wales Court of Criminal Appeal

CITATION: JOHNSTON v R [2007] NSWCCA 133

HEARING DATE(S): 14 March 2007 JUDGMENT OF: McClellan CJ at CL at 1; Hulme J at 19; Hislop J at 20

EX TEMPORE JUDGMENT DATE: 14 March 2007

DECISION: 1. Appeal upheld; 2. Conviction quashed; 3. New trial ordered.

CATCHWORDS: Appeal against conviction - robbery inflicting grievous bodily harm - appellant did not give evidence at trial - no directions given about the right to silence - omission not identified by prosecution or defence counsel - Azzopardi direction required

LEGISLATION CITED: Crimes Act 1900

Azzopardi v The Queen (2001) 205 CLR 50 R v Bradley Scott Burns (2003) 137 A Crim R 557 CASES CITED: R v Dodd (2002) NSWCCA 418; 135 A Crim R 32 R v Sabbah (2004) NSWCCA 28 R v Wilson [2005] NSWCCA 20; 62 NSWLR 346

PARTIES: Allen William Johnston (Appl) The Crown

FILE NUMBER(S): CCA 2006/2618

COUNSEL: A Cook (Appl) W Dawe QC (Crown)

SOLICITORS: Legal Aid Commission of NSW (Appl) Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/41/0256

LOWER COURT JUDICIAL OFFICER: Goldring DCJ

LOWER COURT DATE OF DECISION: 18 May 2006

IN THE COURT OF CRIMINAL APPEAL 2006/2618

McCLELLAN CJ at CL HULME J HISLOP J

WEDNESDAY 14 MARCH 2007 JOHNSTON, Allen William v R Judgment 1 McCLELLAN CJ at CL: The appellant, Allen William Johnston was convicted following a trial in the District Court at Wollongong of the following offence: "On 15 March 2002 at Warrawong in the State of New South Wales being in company with persons unknown, robbed Tony Trani of $550 in cash, a necklace, a watch, ring, bracelet and mobile phone, the property of Tony Trani and that the said Allen Johnston at the time of the robbery, inflicted grievous bodily harm upon Tony Trani." 2 The offence under s 98 Crimes Act 1900 carries a maximum penalty of 25 years imprisonment. The appellant was sentenced to a non-prole period of 2 ½ years and a total term of 5 years. The appellant will be eligible to apply for release to parole on 17 November 2008. 3 The appellant appeals his conviction. There is only one ground of appeal which is: "The absence in the trial of any direction to the jury concerning the fact that the appellant did not give evidence caused the trial to miscarry."