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." Evidence at the trial 4 Mr Trani lived at Warrawong in a unit above a shop owned by his parents. On the evening of 14 March 2002 he spent some time drinking with the appellant and others at the Illawarra Yacht Club. Mr Trani had some previous acquaintance with the appellant and gave evidence that he had previously given him a job. 5 Mr Trani and the appellant left the yacht club at about 11 pm and went to the home of a mutual friend Dianne Mills. The appellant had been living at Ms Mills house for some months. After consuming further alcoholic drinks members of the group decided to go onto the Open Hearth Hotel where they consumed more alcoholic drinks. 6 Mr Trani left the hotel at about 2.30 am and went home to bed. Later in the night he was awakened by a very loud noise at his front gate. He gave evidence that he opened the door and saw a person who he recognised as the appellant. He said that when he opened the gate he was attacked by the appellant and two other persons. He was assaulted suffering serious injury and various of his possessions were stolen. 7 Mr Elvis Mileski also gave evidence at the trial. He said that sometime early on the morning of 15 March he overheard the appellant saying "they belted somebody" meaning, as I understand, that the appellant and others had "belted somebody." He said he also saw, although he only had a quick glimpse, the appellant holding a gold chain. 8 The appellant was interviewed by the police and his ERISP was tendered at the trial. In it he denied that he had assaulted or robbed Mr Trani. He confirmed that on the relevant evening he had been in Mr Trani's company but denied going to his house and said he had no idea how Mr Trani had come by his injuries. He said that the abrasions on his knuckle regions had not occurred in a fight with Mr Trani but were suffered when he hit a telegraph pole with his fist after an argument with his girlfriend. 9 The appellant did not give evidence at his trial. 10 The fundamental issue at the trial was whether Mr Trani correctly identified the appellant as one of his assailants. Apart from Mr Trani's evidence there was no other direct evidence that the appellant had participated in the attack. A friend of the appellant, Joshua Geekie had made a statement to the police in which he had said that the appellant had told him that "I had a fight last night and it's all over the radio." When he gave his evidence he said that this statement was not correct and he gave this information to the police because he was scared. The prosecution were unable to confirm that a story had been on the radio at the relevant time. Resolution of the appeal 11 In the course of her address counsel for the appellant reminded the jury that the appellant had not given evidence. She said: "Mr Johnston has come before you and has told you that he is not guilty of this charge. You have seen his evidence in the form of the ERISP and his Honour will give you directions about the right to silence and the right that we all share of being under questioning by police officers (sic) none of us have to say anything. But Mr Johnston, having been properly cautioned, chose to give the police his version of events and you are to assess what he told the police officers as you do any other witness. Although he has that right, once he gave that right up he is to be assessed like anyone else and I would suggest to you that his demeanour on that tape was of a calm, sensible, hard working young man who was telling the truth." 12 Although counsel indicated that she anticipated that the trial judge would give directions in relation to an accused person's right to remain silent this did not happen. The matter was not adverted to by the trial judge and the omission was not identified by either the prosecutor or defence counsel. Although the Crown argued on this appeal that there may have been tactical reason why counsel for the appellant did not raise the matter, I cannot identify why this should be. I am satisfied that the failure to raise the matter was an oversight. It should have been raised by counsel for the appellant. The Crown Prosecutor should also have been alive to the issue. I would grant leave to the appellant to raise the issue. 13 This Court has on many occasions considered the directions which a trial judge should give when an accused person does not give evidence at his or her trial. It has been recognised, as in my opinion, must be plain, that most people would assume that if a person who has been accused of a crime remains silent it is because they cannot adequately explain the situation. Although the ordinary person may not conclude from the mere fact of an accused's person's silence that he or she is guilty, if there is evidence indicating that an accused may have committed the crime a failure to respond would make it, at least, more likely that a person would conclude that the accused committed the crime. 14 In Azzopardi v The Queen (2001) 205 CLR 50 at 70 the majority said: "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/her detriment. Plainly that is so. It follows that if an accused does not give evidence at trial it will almost always be desirable 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 make-weight in assessing whether the prosecution has proved its case beyond reasonable doubt." 15 There have been cases where although the trial judge has addressed the fact that the accused did not give evidence the directions have been found to be incomplete and accordingly inadequate (see R v Bradley Scott Burns (2003) 137 A Crim R 557; R v Wilson [2005] NSWCCA 20; 62 NSWLR 346; R v Dodd (2002) NSWCCA 418; 135 A Crim R 32; R v Sabbah (2004) NSWCCA 28). This was not such a case. In this case the trial judge did not address the issue at all. 16 The appellant submitted that the need for a direction in the present case was heightened by the fact that the prosecution asserted that the appellant had lied in his ERISP. The trial judge addressed this matter in his directions and reminded the jury that the Crown asserted that the alleged lie "was told because Mr Johnston knew the truth of the matter about which he lied would implicate him in the offence, or to put in another way, because he was afraid of the truth." 17 By putting the matter in this way his Honour raised for the jury's consideration whether the appellant's failure to give evidence meant that he was not able to rebut the Crown's submission. Given this, although I would otherwise be of the view that an Azzopardi direction should have been given the need for it became undoubted. The failure to give the direction had the consequence that the appellant lost the chance of an acquittal. 18 In my opinion leave to raise the issue should be granted, the appeal upheld, the conviction quashed and a new trial ordered. 19 HULME J: I agree. 20 HISLOP J: I agree. 21 McCLELLAN CJ at CL: Accordingly, the orders of the court are as I have indicated. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.