Azzopardi v The Queen [2001] HCA 25

Azzopardi v The Queen [2001] HCA 25

Directions given by both trial judges (in Azzopardi and Davis) were erroneous as they contravened s 20(2) by suggesting, directly or indirectly, that the accused's failure to give evidence could be used to more readily accept prosecution evidence or discount doubts. Such directions impermissibly invited reasoning that the accused's silence was because of guilt. In Azzopardi, the misdirection warranted a new trial, as the error may have affected the outcome. In Davis, although the direction was also contrary to s 20(2), in the circumstances of the case no substantial miscarriage of justice occurred and the evidence was overwhelming, so special leave to appeal was refused.

Parties
Appellant: Joseph Azzopardi; Respondent: The Queen; Applicant: Brian Davis
Jurisdiction
Australia
Judgment Date
03 May 2001
Procedural Posture
Criminal Appeal / High Court Judgment on Appeal (azzopardi); Special Leave to Appeal (davis)
Outcome
In Azzopardi, appeal allowed, conviction set aside, new trial ordered. In Davis, application for special leave refused.
Legal Topics
Right to Silence, Judicial Directions, Comment on Accused Not Giving Evidence, Evidence Act 1995 (nsw) S 20, Accused's Failure to Give Evidence, Onus of Proof, Presumption of Innocence, Jones V Dunkel Inference
Criminal Law Evidence Right to Silence Judicial Directions Comment on Accused Not Giving Evidence Evidence Act 1995 (nsw) S 20 Accused's Failure to Give Evidence Onus of Proof +2 more

Case Brief

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Parties

Joseph Azzopardi

Appellant

The Queen

Respondent

Brian Davis

Applicant

Procedural Posture

Criminal Appeal / High Court Judgment on Appeal (azzopardi); Special Leave to Appeal (davis)

Legal Issues

  1. 1 Whether and in what terms a trial judge may comment to a jury on an accused's failure to give evidence under s 20(2) Evidence Act 1995 (NSW) and common law principles
  2. 2 Whether the trial judge's comments amounted to a suggestion that the accused did not give evidence because of guilt, contravening s 20(2)
  3. 3 The proper application of the principle in Weissensteiner v The Queen to direct/circumstantial evidence cases

Ratio Decidendi

Directions given by both trial judges (in Azzopardi and Davis) were erroneous as they contravened s 20(2) by suggesting, directly or indirectly, that the accused's failure to give evidence could be used to more readily accept prosecution evidence or discount doubts. Such directions impermissibly invited reasoning that the accused's silence was because of guilt. In Azzopardi, the misdirection warranted a new trial, as the error may have affected the outcome. In Davis, although the direction was also contrary to s 20(2), in the circumstances of the case no substantial miscarriage of justice occurred and the evidence was overwhelming, so special leave to appeal was refused.

Court Disposition

In Azzopardi, appeal allowed, conviction set aside, new trial ordered. In Davis, application for special leave refused.

Orders

  • Azzopardi: Appeal allowed.
  • Azzopardi: Orders of the NSW Court of Criminal Appeal set aside.