R v GED [2003] NSWCCA 296

R v GED [2003] NSWCCA 296

The convictions could not stand because the trial judge invited the jury to infer, from defence counsel's failure to cross-examine Crown witnesses about statements denied in the appellant's police interview, that the appellant had lied to police, without warning the jury of other possible explanations for that failure. This direction invited the jury to take an impermissible path inconsistent with the appellant's right to silence and created a real risk of miscarriage of justice. The proviso to s 6 of the Criminal Appeal Act was not applied because the risk of miscarriage could not be confined to particular counts.

Jurisdiction
Australia
Judgment Date
16 October 2003
Procedural Posture
Criminal Appeal Against Conviction / Appeal to the New South Wales Court of Criminal Appeal From District Court Convictions
Outcome
Appeal allowed; convictions and sentences quashed; new trial ordered.
Legal Topics
['failure to Cross Examine Crown Witnesses' 'right to Remain Silent' 'jury Directions' 'lies as Consciousness of Guilt' 'miscarriage of Justice' 'criminal Appeal Act Proviso' 'sexual Offences Against a Child']
['criminal Law' 'criminal Procedure' 'evidence'] ['failure to Cross Examine Crown Witnesses' 'right to Remain Silent' 'jury Directions' 'lies as Consciousness of Guilt' 'miscarriage of Justice' 'criminal Appeal Act Proviso' 'sexual Offences Against a Child']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Criminal Appeal Against Conviction / Appeal to the New South Wales Court of Criminal Appeal From District Court Convictions

Legal Issues

  1. 1 ["Whether the trial judge's directions about defence counsel's failure to put matters to Crown witnesses caused a miscarriage of justice." "Whether the jury was wrongly invited to treat the failure to cross-examine as a concession that assertions in the appellant's police interview were untrue." 'Whether the proviso to s 6 of the Criminal Appeal Act should be applied despite the erroneous direction.' 'Whether a new trial should be ordered after the convictions were quashed.']

Ratio Decidendi

The convictions could not stand because the trial judge invited the jury to infer, from defence counsel's failure to cross-examine Crown witnesses about statements denied in the appellant's police interview, that the appellant had lied to police, without warning the jury of other possible explanations for that failure. This direction invited the jury to take an impermissible path inconsistent with the appellant's right to silence and created a real risk of miscarriage of justice. The proviso to s 6 of the Criminal Appeal Act was not applied because the risk of miscarriage could not be confined to particular counts.

Court Disposition

Appeal allowed; convictions and sentences quashed; new trial ordered.

Orders

  • ['The appeal be allowed.' 'The convictions and sentences be quashed.' 'A new trial be ordered.']