Ahmed v R [2021] NSWCCA 280

Ahmed v R [2021] NSWCCA 280 · Read the judgment on AustLII

Catchwords: Reversed onus of proof – accused’s right to silence – particular need for Azzopardi direction

In this decision the Court of Criminal Appeal has held that in cases where the accused bears an onus in relation to a defence, there is a particular need for the judicial officer to direct themselves that the failure of the accused to give of sworn evidence cannot be used as a factor on the question of whether that onus is discharged.

The applicant was found guilty of murdering his wife, following a judge-alone trial. He did not deny that he had stabbed his wife 14 times and then waited until she stopped breathing before calling 000. Rather, at trial he raised the partial defence of substantial impairment. The details of the defence are not presently important except in one respect: s 23A(4) of the Crimes Act provides that the onus is on the accused to prove that he or she is not liable to be convicted of murder as a result of the partial defence, but rather manslaughter.

In a judge-alone trial such as this one, the judge must give themselves all the directions and warnings that would otherwise be given to a jury. The trial judge observed that the accused ‘… elected not to give evidence, despite the onus which fell upon him, to establish the defence which he advanced, on the balance of probabilities.’ Her Honour did observe that the accused had a right to silence which he chose not to exercise (given that on the night he told police what he had done, and gave the 000 operator and two psychiatrists accounts of his actions). That observation was followed immediately by a comment that he ‘chose, however, not to give evidence at the trial, as was also his right.’ The trial judge also observed that none of the accused’s accounts were given on oath, and so were not tested in cross-examination. Ultimately the trial judge found that the partial defence had not been established, and found the accused guilty of murder. He appealed on grounds including that the trial judge erred in her directions relating to the silence of the accused at trial.

Bathurst CJ (with whom Garling and Wright JJ agreed, with additional reasons) drew attention to the well-known decision of Azzopardi v The Queen (2001) 205 CLR 50 (‘Azzopardi’), which provides that if an accused does not give evidence at trial it will almost always be desirable for the judge to warn the jury that the accused's silence in court is not evidence against them, does not constitute an admission, may not be used to fill gaps in the evidence tendered by the prosecution, and may not be used as a make‑weight in assessing whether the prosecution has proved its case beyond reasonable doubt. The Chief Justice observed that, although not a ‘mandatory’ direction, it will be required in most cases (at [47]). Importantly, his Honour held that such a warning is of particular importance in a case such as the present where the onus lay on the accused to establish the defence. In such a case it seems essential to warn against a path of reasoning that the failure to give evidence was a relevant factor in considering whether the onus had been discharged (at [44]). Although the warning may be implied from the right to silence direction, it depends on the context in which that direction was given (at [48), and in this case it was not able to be implied that the trial judge warned herself of the need to guard against drawing inferences from the failure of the accused to give evidence (at [53]).

As observed by Garling and Wright JJ in their concurring judgment, the case here was not entirely the same as that discussed in Azzopardi; it was more nuanced, because the question was not whether the prosecution had discharged its onus in proving the guilt of the accused, but rather whether the applicant had established the defence on the balance of probabilities (at [88]). In this instance, although the onus of proof for the defence falls on the accused, neither the statute nor common law requires an accused to give evidence in order to discharge that onus (at [89]). It follows that the failure of an accused to give evidence in support of the defence cannot, without more, give rise to an adverse inference on the discharge of the onus of proof (at [90]). Their Honour’s did leave open the door for a future direction (at least in judge-alone trials) about the differing weight to be afforded unsworn statements when an accused does not give evidence at trial, but declined to decide the issue (at [93]-[96]). In any event, given the complexities in this trial, a clear an explicit direction in accordance with Azzopardi was required (at [97]).

It followed that the appeal was allowed and a new trial was ordered.

This reasoning – especially the observation that an Azzopardi direction is particularly important where an accused bears an onus of establishing a defence – would have just as much application in the Local Court as it does in trials. Potential examples would be ‘goods in custody’ offences, and deemed supply offences, each of which involve a reversed onus.