The party asserted that silence and failure to give any evidence did not establish guilt
The defendant in a case currently before the High Court has advocated for his right to silence.
In an application for special leave to appeal, Ignatius George challenged the decision of the Court of Appeal of the Supreme Court of Western Australia (CA) regarding his conviction for dealing indecently with a child. The CA had ruled that there was no miscarriage of justice when the trial judge did not warn the jury that failing to give evidence or staying silent in court should not affect the outcome.
George’s application argued that an accused’s right to silence should not be detrimental to his defence. The CA had decided that reminding the jury about this right was not always necessary, and that based on the circumstances of George’s case, there was “no perceptible risk” for the jury to infer that his silence was an admission.
The case against George was filed by a 13-year-old complainant. According to the submissions, George was an electrical contractor who did work at the home of the complainant’s family. While he was there, the 13-year-old complainant was doing chores around the house.
The prosecution said that George approached the complainant and asked to touch her hair. The complainant allowed him. After touching her hair, George moved his hand down and touched the complainant’s bottom. The complainant thought that it was a mistake, and so when he asked if he could touch her hair again, she agreed. This time, he touched her breast, which he cupped with his hand. The complainant ran from the room screaming and crying before telling her mother what had happened.
During the proceedings, George denied the allegations but accepted that he might have unintentionally touched the complainant. He also said that he mistook her for a woman who “was about 20 years old.” He admitted to complimenting her hair but denied asking her for permission to touch it. George did not give any evidence during the trial; instead, he relied on the submissions by his counsel in closing, which stated that “the prosecution had not proved beyond reasonable doubt that the allegations were truthful and reliable.”
Ultimately, the trial court convicted him of two charges of indecently dealing with a child between the ages of 13 and 16 years, contrary to s321(4) of the Criminal Code (WA).
George appealed his conviction to the CA, saying that the trial judge failed to warn the jury that his silence should not be used against him. His basis was Azzopardi v The Queen [2001], which pronounced that “it will almost always be desirable for the trial judge to warn the jury that an accused’s silence in court is not evidence against them, does not constitute an admission, cannot be used to fill gaps in the evidence tendered by the prosecution, and/or cannot not be used as a make-weight in assessing whether the prosecution has proved its case beyond reasonable doubt” (Azzopardi direction).
The court records established that the trial judge “expressly referred to the fact” that George had not given evidence but did not “at any time give an Azzopardi direction, or any element of such a direction.” Despite this, the CA decided the “absence of such a direction did not give rise to any miscarriage of justice.”
George emphasised the “perceptible risk in the absence of a warning” before the High Court, and said that the trial judge should have assisted the jury by giving an Azzopardi direction. On this basis, he applied for his conviction to be set aside and for a new trial to commence.
To date, the special leave application is currently awaiting the High Court’s decision.
