Ward v R [2022] NSWCCA 271

Ward v R [2022] NSWCCA 271

Although the right to silence direction ought to have been given when the evidence was led and in the summing up, no miscarriage of justice was occasioned because the evidence referred to the exercise of a right through lawyers, the applicant gave evidence, no submissions were made using the silence adversely, trial counsel did not seek the direction, and there was no real chance the jury used the evidence adversely. No forensic disadvantage direction could be given under s 165B because no application was made, and no specific significant forensic disadvantage was identified. On an independent review of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the...

Jurisdiction
Australia
Judgment Date
15 December 2022
Procedural Posture
Criminal Appeal Against Conviction / Application for Leave to Appeal and Appeal From District Court Convictions
Outcome
Leave granted, appeal dismissed.
Legal Topics
['right to Silence Direction' 'forensic Disadvantage Caused by Delay' 'unreasonable Verdict' 'child Sexual Offences']
['criminal Law' 'criminal Appeals' 'evidence'] ['right to Silence Direction' 'forensic Disadvantage Caused by Delay' 'unreasonable Verdict' 'child Sexual Offences']

Case Brief

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Procedural Posture

Criminal Appeal Against Conviction / Application for Leave to Appeal and Appeal From District Court Convictions

Legal Issues

  1. 1 ["Whether the trial judge's failure to direct the jury when evidence was given that the applicant declined a police interview, or in the summing up, occasioned a miscarriage of justice." 'Whether the trial judge failed to direct the jury properly about disadvantage to the applicant and absence of evidence concerning the date of the school carnival.' 'Whether the guilty verdicts were unreasonable or could not be supported having regard to the evidence.']

Ratio Decidendi

Although the right to silence direction ought to have been given when the evidence was led and in the summing up, no miscarriage of justice was occasioned because the evidence referred to the exercise of a right through lawyers, the applicant gave evidence, no submissions were made using the silence adversely, trial counsel did not seek the direction, and there was no real chance the jury used the evidence adversely. No forensic disadvantage direction could be given under s 165B because no application was made, and no specific significant forensic disadvantage was identified. On an independent review of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the...

Court Disposition

Leave granted, appeal dismissed.

Orders

  • ['Grant leave pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) in respect of grounds 1 and 2.' 'Grant leave to appeal.' 'Dismiss the appeal.']