George v. The State of Western Australia

Lower Court Judgment

01/09/2020 Supreme Court of Western Australia (Court of Appeal) (Quinlan CJ, Mazza and Mitchell JJA)

[2020] WASCA 139

Catchwords

Criminal law – Jury directions – Right to silence – Where applicant charged with indecently dealing with child between ages 13 and 16 years, contrary to s 321(4) of Criminal Code (WA) – Where prosecution adduced evidence of investigating police officer, who gave evidence of electronic record of interview in which appellant denied offences and gave alternative account, and tendered record of interview – Where applicant did not give or adduce any evidence at trial – Where applicant’s submissions were prosecution had not proved beyond reasonable doubt all elements of offence – Where trial judge failed to warn jury that applicant’s silence could not be used as evidence against him, does not constitute admission, could not be used to fill gaps in prosecution’s evidence and could not be used as a make-weight in assessing whether prosecution has proved its case beyond reasonable doubt (Azzopardi direction) – Where majority of WA Court of Appeal held absence of Azzopardi direction not miscarriage of justice – Whether miscarriage of justice occurred because of absence of Azzopardi direction.