Man faces retrial over right to silence

Cheryl Goodenough
·2-min read

A Queensland man who relied on his right to silence when tried for sexual offences against his half-sister has successfully appealed in the High Court.

The man, who cannot be named for legal reasons, was charged with raping and indecently treating the girl when she was 13 and 14 years old.

The man was accused of seven offences allegedly committed between December 2012 and August 2013, when he was aged 33 and 34.

The jury in his Brisbane District Court trial found him guilty of three counts of rape and two counts of indecent treatment of a child under 16 years old.

It also handed down a guilty verdict for an alternative charge of indecent treatment of a child under 16.

He was acquitted on two counts of rape.

The man was sentenced to an effective term of nine years in jail to be eligible for parole on February 3, 2021.

He took the matter to the High Court after his appeal against the convictions was dismissed in the Queensland Court of Appeal.

The man argued that a statement by the trial judge invited the jury "to reason to his guilt from his exercise of the right to silence".

The judge had told the jurors to bear in mind that the complainant gave evidence, but the defendant had not given sworn contrary evidence and "that may make it easier" for their decisions.

"In an accusatorial system of criminal justice, which places the onus on the prosecution to prove the allegation that it brings... there can be no expectation that the accused will give evidence," the High Court said in its judgment handed down on Wednesday.

The five High Court justices set aside the Appeal Court's decision, ordering the man's convictions be set aside and a new trial be held.