JOHNSTON v R [2007] NSWCCA 133

JOHNSTON v R [2007] NSWCCA 133

Because the appellant did not give evidence, the trial judge should have given an Azzopardi direction. The need for that direction became undoubted where the Crown asserted that the appellant had lied in his ERISP and the trial judge directed the jury on that alleged lie, raising the risk that the jury would treat the appellant's failure to give evidence as an inability to rebut the Crown's submission. The failure to give the direction caused a miscarriage by depriving the appellant of the chance of an acquittal.

Jurisdiction
Australia
Judgment Date
14 March 2007
Procedural Posture
Appeal Against Conviction / Court of Criminal Appeal
Outcome
Appeal upheld; conviction quashed; new trial ordered.
Legal Topics
['robbery Inflicting Grievous Bodily Harm' 'right to Silence' 'jury Directions' 'azzopardi Direction' 'appeal Against Conviction']
['criminal Law' 'criminal Procedure' 'evidence'] ['robbery Inflicting Grievous Bodily Harm' 'right to Silence' 'jury Directions' 'azzopardi Direction' 'appeal Against Conviction']

Case Brief

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Procedural Posture

Appeal Against Conviction / Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the absence of any direction to the jury concerning the fact that the appellant did not give evidence caused the trial to miscarry.' 'Whether an Azzopardi direction was required where the appellant did not give evidence and the prosecution asserted that he had lied in his ERISP.']

Ratio Decidendi

Because the appellant did not give evidence, the trial judge should have given an Azzopardi direction. The need for that direction became undoubted where the Crown asserted that the appellant had lied in his ERISP and the trial judge directed the jury on that alleged lie, raising the risk that the jury would treat the appellant's failure to give evidence as an inability to rebut the Crown's submission. The failure to give the direction caused a miscarriage by depriving the appellant of the chance of an acquittal.

Court Disposition

Appeal upheld; conviction quashed; new trial ordered.

Orders

  • ['Leave to raise the issue granted.' 'Appeal upheld.' 'Conviction quashed.' 'New trial ordered.']