George v WA

[2020] WASCA 139

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Appeal against conviction
3. › Miscarriage of justice
4. › Right to silence
5. › Accused's failure to give evidence at trial
6. › Whether Azzopardi direction required
7. › Whether failure to give full Azzopardi direction gave rise to miscarriage of justice
8. › Whether perceptible risk jury used accused's silence to his detriment
1. Criminal Law
2. › Evidence
3. › Confessional statements
4. › Electronic record of interview
5. › Voluntariness
6. › Tactical decision not to object to admission
7. › Whether miscarriage of justice arose from admission of EROI where forensic decision made not to object
1. Criminal Law
2. › Appeal against conviction
3. › Miscarriage of justice
4. › Incompetence of counsel
5. › Advice not to give evidence
6. › Whether objectively rational forensic decision
7. › Whether inadequate advice on right to give evidence
8. › Criminal Code (WA), s 321(4)
1. Criminal Law
2. › Trial
3. › Summing up
4. › Directions to jury
5. › Characterisation of defence case
6. › Whether trial judge's direction accurately and fairly summarised the defence case

Quick Take

A failure to give a full Azzopardi direction will not necessarily give rise to a miscarriage of justice; whether it does depends on the circumstances of the particular case, including whether the accused's account was before the jury via a police interview, the content of other directions given, and whether there was a perceptible risk the jury might improperly use the accused's silence. Where an accused's EROI is in evidence and a Liberato direction is given instructing the jury that even rejection of the EROI account cannot be used against the accused, the risk of misuse of silence may be sufficiently addressed. However, the dissent highlights that the Liberato direction addresses a different risk from the Azzopardi direction and may not cure the deficiency.