APPELLANT CHARGED WITH SEXUAL OFFENCES ALLEGES MISCARRIAGE OF JUSTICE AGAINST THE TRIAL JUDGE
GBF v The Queen [2020] HCA 40 (4 November 2020)
This case involves the appellant who alleges that there was a miscarriage of justice when the trial judge stated to the jury that the failure of the appellant to give sworn evidence "may make it easier" to assess the complainant's credibility.
Facts:
Appellant, in this case, is charged with seven counts of sexual offenses allegedly committed against the complainants half-sister when she was 13 and 14 years old.
The prosecution’s case was wholly dependent upon acceptance of her evidence. The appellant did not give or call. In the course of his charge, Judge Wall QC instructed the jury to: "bear in mind that [the complainant] gave evidence and there is no evidence, no sworn evidence, by the defendant to the contrary of her account. That may make it easier" ("the impugned statement").
The appellant challenged his convictions in the Court of Appeal contending that, in effect, the impugned statement was a direction that the absence of evidence from him might make it easier to return verdicts of guilty.
The appeal in this Court is brought on a single ground which contends that the Court of Appeal was wrong to find that the impugned statement did not occasion a miscarriage of justice. The appellant submits that the impugned statement invited the jury to reason to his guilt from his exercise of the right to silence.
Issue: Did the impugned statement resulted in a miscarriage of justice?
Held:
The impugned statement encouraged the jury to reason that it is easier to accept the complainant's allegations because the appellant had not given sworn evidence.
Such a process of reasoning is false because it proceeds upon a view that the accused may be expected to give evidence and in an accusatorial system of criminal justice, which places the onus on the prosecution to prove the allegation that it brings, rare and exceptional cases apart, there can be no expectation that the accused will give evidence.
It is the recognition of the attractiveness of reasoning that an allegation is more likely to be true in the absence of denial that explains the need in almost all cases in which the accused does not give evidence to give a direction.
The impugned statement contradicted the directions given earlier on the onus of proof and the exercise of the right to silence. Its effect was to invite the jury to engage in the same false process of reasoning. The Court of Appeal was wrong to hold that this was not an irregularity amounting to a miscarriage of justice.
Conclusion: Hence, the court orders that the appellant's convictions be set aside and a new trial be had.
