A judicial direction to a jury which conflicted with a defendant’s right to silence – by suggesting that silence may make it easier for the jury to accept the evidence of a complainant – led to an order for a retrial in GBF v The Queen [2020] HCA 40 (4 November 2020).
It didn’t save the situation that the judge had, earlier in the directions, put the position correctly, when later on the jury were given an incorrect pathway to conviction.
“[22] ... Notwithstanding the earlier directions, why would the jury not take up the trial judge's invitation and find that the complainant's allegations were more likely to be truthful and reliable by taking into account that the appellant had not given evidence denying them?”
Nor was this situation saved by failure of all counsel to seek a redirection on the point. Sometimes appellate courts say, well, the mistake wasn’t thought significant by counsel at the time, so overall it didn’t matter. Sometimes that assessment will be accurate, but not here.
The effect of the judge’s impugned statement was critical: it invited the jury to engage in a false process of reasoning. This made it a miscarriage of justice.
“[23] 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.”
Some people might experience a great temptation to brush over errors of the kind that occurred here, because this was a sex case and no one wants to have a retrial in a sex case. It can be useful to be reminded that the fundamental requirements of the law of criminal trials must be upheld.
