GBF v The Queen [2020] HCA 40

Though this High Court decision concerns an appeal from Queensland, it is relevant to the law in all Australian jurisdictions. The relevant background to this case is summarised in the first two paragraphs of the unanimous judgment by Kiefel CJ, Bell, Keane, Gordon and Edelman JJ:

‘The appellant appeals by grant of special leave from the orders of the Court of Appeal of the Supreme Court of Queensland (Morrison and Philippides JJA and Boddice J) dismissing an appeal against his convictions for six sexual offences. All the offences were alleged to have been committed against the appellant’s half-sister. The prosecution case was wholly dependent upon acceptance of her evidence. The appellant did not give or call evidence. 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 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 Court of Appeal acknowledged that the impugned statement should not have been made. Nonetheless, the Court of Appeal found there was no real possibility that the jury may have misunderstood earlier, correct directions of law that had been given, and no real possibility that the appellant had been deprived of a real chance of acquittal. Their Honours held that the impugned statement had not occasioned a miscarriage of justice. This holding took into account the fact that neither the prosecutor nor defence counsel had applied for any redirection arising from the making of the impugned statement.

In the High Court, the appellant challenged the Court of Appeal’s decision that the impugned statement did not occasion a miscarriage of justice. The appellant argued that it ‘invited the jury to reason to his guilt from his exercise of the right to silence’ and that the Court of Appeal was ‘bound to allow the appeal unless the prosecution established that no substantial miscarriage of justice had actually occurred’ ([3]).

Ultimately the High Court accepted the appellant’s submissions, allowed the appeal, and ordered a retrial.

The High Court found that the present case could not be distinguished from Azzopardi, in which it was stated:

‘It is to be emphasised that cases in which a judge may comment on the failure of an accused to offer an explanation will be both rare and exceptional … A comment will never be warranted merely because the accused has failed to contradict some aspect of the prosecution case.‘ ([68] of Azzopardi, reproduced at [21] of GBF)

In GBF there was no hint of any ‘additional facts which, if they existed, must be peculiarly within the mind of the Accused’ – therefore, there was no justification for any Weissensteiner-type of comment. Accordingly, the trial judge’s suggestion that the Accused’s silence might ‘make it easier’ for the jury invited them to engage in a false process of reasoning .

As put by the High Court, the comment’s ‘effect was to invite the jury to engage in the same false process of reasoning as the impugned passage did in Azzopardi. The Court of Appeal was wrong to hold that this was not an irregularity amounting to a miscarriage of justice’ ([26]).

This decision adds to the significant body of case law which confirms that Weissensteiner-type comments are appropriate only in rare and exceptional circumstances. In light of GBF, it is likely that trial judges will be even more reluctant to make any mention of the accused’s silence, except for when giving the standard form of the Azzopardi direction. GBF also reinforces protection of an accused person’s right to silence, indicating that any mischaracterisation of that right at trial is likely to be regarded as a miscarriage of justice.

The judgment and further discussion:
The judgment was delivered on 4 November 2020 and can be accessed here.

For further discussion of this case, listen to ABC’s Law Report podcast from 24 November 2020 from 13 minutes and 10 seconds onwards (accessible here).