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High Court of Australia Transcripts |
Sydney No S105 of 2000
B e t w e e n -
JOSEPH AZZOPARDI
Appellant
and
THE QUEEN
Respondent
Office of the Registry
Sydney No S39 of 2000
B e t w e e n -
BRIAN DAVIS
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal
GLEESON CJ
GAUDRON J
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON MONDAY, 20 NOVEMBER 2000, AT 11.01 AM
Copyright in the High Court of Australia
MR T.A. GAME, SC: If the Court pleases, in the matter of Davis, I appear with MR S.J. ODGERS, SC, for the applicant. (instructed by Legal Aid Commission of New South Wales)
MR R.D. ELLIS: If the Court pleases, I appear for the respondent in both Davis and Azzopardi, with my learned friend, MR R.A. HULME. (instructed by S.E. O'Connor, Solicitor for Public Prosecutions)
GLEESON CJ: Yes. Well now, I think we are technically part-heard in the matter of Azzopardi, so we might as well complete that and then move on to the application in Davis. Mr Byrne.
MR BYRNE: Thank you, your Honours. When the matter was before the Court on the last occasion, the parties were invited to examine the history regarding inferences
that might be drawn or directions that may be given to a jury in a case where the accused person failed to give evidence.
Your Honours, that history discloses that the decision of the Supreme Court of New South Wales, in a case called Kops [1893] NSWLawRp 67; (1893) 10 WN (NSW) 19, is an important part of that history. That case was decided by the Supreme Court of New South Wales, especially constituted court of seven judges.
KIRBY J: Was that the entire Supreme Court at that time, just for interest?
MR BYRNE: It may well have been. I apologise, your Honour, I do not know the answer to that. It was a decision of the Court which ultimately resulted in a divided court. The majority, whose judgment was represented by the judgment of the Chief Justice, held that it was proper for adverse inferences to be drawn and for juries to be directed accordingly.
HAYNE J: Now, is it a direction or is it a comment? That is, is it any part of the judicial function to be giving directions to the jury as distinct from making comments about how they may set about finding a verdict of guilt?
MR BYRNE: What constitutes a direction and what constitutes, by distinction, a comment, is sometimes a fine distinction to draw. The things that were said in Kops Case were clearly categorised as comments. Whether they could be categorised as directions is perhaps another issue but the question that arises here is not so much whether it was a direction but whether it was legitimate to make the kind of comments that were made in that case.
Your Honours, the decision of the majority in that case discloses what we would submit is a process of reasoning which is foreign to the rules of criminal procedure as we know them today. Can I take your Honours to page 21 of the reported judgment and refer your Honours, in particular, to the material in the right-hand column of the report on page 21? There are a number of statements in the judgment of the Chief Justice which appear to be the basis on which his Honour reaches the ultimate conclusion that he did. At about point 3, his Honour, referring to earlier authority, says that:
if they mean that no inference is to be drawn in the particular suit in which the privilege of silence is claimed, then such a conclusion is not only opposed to reason, but also to much authority both of Judges and text writers.
A little further down that column on the same page, 21, there is a quote from the author of Taylor on Evidence in which the author says:
"Although it would be going too far to say that the guilt of the witness must be implied from his silence, it would seem that in accordance with justice and reason the jury should be at full liberty to consider that circumstance as well as every other when they come to decide on the credit due to the witness.".....If you ask a witness whether he has committed a particular crime, it would perhaps be going too far to say that you may discredit him if he refuses to answer; it is for the jury to draw what inference they may."
Then there are some further quotes from a decision of Gillyard in England at the bottom of the right-hand column on page 21:
where a man declined to answer an affidavit upon the ground that his answer might criminate him, Lord Denman says, "such an answer clenches the accusation;" and Coleridge J, says, "If a man when such a serious charge is made against him will not deny it, he must not complain if the case is taken pro confesso."
May I move on, your Honours, to some of the material in the right-hand column on page 22 in the judgment of the Chief Justice. At about point 6 when dealing with the question of compulsion, it is there said:
Or is he placed under compulsion to make a statement? And yet from the prisoner abstaining from adopting these steps very grave inferences may, it is admitted, be drawn.
That kind of reasoning, in our submission, is foreign to the permissible reasoning in criminal procedure nowadays.
GLEESON CJ: Mr Byrne, one interesting thing about that relates to the question you were asked a little earlier by Justice Hayne. A lot of that discussion is in terms of what a finder of fact may do. You discussed with Justice Hayne the distinction between a comment and a direction. As some of the decided cases show, the problem often arises when the jury actually ask the judge what they may take from the fact that the accused has remained silent. Some of the leading cases in New South Wales, I think, arise out of a circumstance where the jury has actually asked the question.
GAUDRON J: Were they in the days, however, when you could give an unsworn statement?
MR BYRNE: Yes, they were.
GAUDRON J: Could I ask, was section 20 also enacted at a time when you could make an unsworn statement?
MR BYRNE: Section 20 - - -
GAUDRON J: Of the Evidence Act.
MR BYRNE: Yes, so far as New South Wales is concerned, was enacted shortly after the abolition of the right to make an unsworn statement so section 20 in New South Wales was implemented in a context where there was no right to make an unsworn statement. In the ACT the position was different. The right to make an unsworn statement was retained in 1995, although it has been abolished since.
GLEESON CJ: I have not noticed, but how did this question come up in Kops? It was a complaint, was it, about something the judge told the jury? Where do we find the - - -
CALLINAN J: At page 19, second column, I think, about point 7.
MR BYRNE: Yes. It was a case of arson where a hat which was associated with the accused had been found in incriminating circumstances as part of the material which was used to light the flame and the questions put to the learned judge in his summing up to the jury, as his Honour Justice Callinan said, are set out there at point 7:
"If the hat, in which the candle was burning, was not the accused's, would you not expect him to deny it?
GLEESON CJ: Well, you see, it said the judge told the jury that the law permitted an accused person to give evidence on his own behalf. When, in New South Wales, did the law first permit that?
MR BYRNE: In indictable cases it was in 1891; in summary cases, it was in 1882.
GLEESON CJ: And this trial was conducted in 1893, I suppose.
MR BYRNE: Probably. Things moved a little more quickly in those days.
GLEESON CJ: Yes, so this was a new problem.
MR BYRNE: Yes.
CALLINAN J: And at page 25, I think about in the second column, about point 6, it is pointed out that there seems to have been very little authority in England on it; just one case, I think, an unreported case, even.
MR BYRNE: Yes. Indeed, the comment was made there that the point had never arisen in England apart from in that case.
GUMMOW J: Is it possible for us to be given the judgments of Justices Windeyer and Owen?
GLEESON CJ: Apart from the editor's characterisation of them.
McHUGH J: The whole piece is reported in the Law Reports. I am surprised, Mr Byrne, that we have not been taken to them. That is what I am using. It is in [1893] NSWLawRp 67; 14 LR(NSW) 150 - cases at law. The counsels' argument and all the judgments are set out.
MR BYRNE: I apologise, your Honour, we had not picked up that reference to it. I should say by way of history that this question of the right of a judge to comment had not been confined to situations following upon the introduction of the right of an accused person to give evidence, because the right of an accused person to make an unsworn statement had been recognised a little earlier in 1883 by the introduction of section 470.
Following the introduction of section 470 in 1883, it was apparent that there was a practice then emerging of both prosecutors and judges to comment upon the failure of an accused person to make an unsworn statement as was his or her right in those days.
McHUGH J: That practice had existed in England for a long time. I just cannot remember the name of the case but I can remember seeing, at some stage, a case back in 1830 of 1840 where the accused had made a statement.
MR BYRNE: Certainly, and the history appears to be, in New South Wales, that an accused person was entitled to make a statement as a matter of right from the time of European settlement so that it is something that clearly derived from England.
KIRBY J: Where can we find a neat summary of this history so that we can read it with the cases?
MR BYRNE: I have put with the materials that was forwarded to the Registry an extract from an as yet unpublished work by Dr Woods of the District Court of New South Wales which is a history of the criminal law in New South Wales. That material has been supplied to the Court. Your Honours, the point we seek to make in relation to Kops is that the foundation on which the correctness of a judge making comment about the failure of an accused person to give evidence, is a foundation which would not be acceptable under modern rules of criminal procedure and, particularly, the respect which is now paid to such fundamental rules as the right to silence and the protection against self-incrimination.
GLEESON CJ: Do you happen to know when the word "adversarial" was first used in relation to the common law criminal justice system?
MR BYRNE: Your Honour, I cannot answer that question, I apologise. Your Honours, one of the other - - -
GAUDRON J: What was held by the Privy Council in Kops' Case?
MR BYRNE: The decision of the Privy Council in Kops' Case was relatively brief and we would submit, with great respect, of not great assistance in an analysis of the issues that arise for consideration here. What the Privy Council said in a case where apparently the respondent, who was the Crown in that case, was not called on, the case was decided on the day it was heard. It simply said that there may be some cases in which it was legitimate for a judge to comment. There may be others in which it would, to use the precise words of the leading judgment, "It would not be expedient or calculated to further the ends of justice for comment to be made".
GAUDRON J: That is right. It goes on, does it not, to say, "Speaking of the ends of justice which undoubtedly regards the interests of the prisoners much as the interests of the Crown. It would not be expedient or calculated to further those ends to call attention to the fact that he has not tendered himself as a witness."
MR BYRNE: Yes, your Honour.
HAYNE J: But it suggests that we are in an entirely different field of discourse. The field of discourse being the judge making comments about the facts, comments which the jury must, these days at least, be told they are free to regard or disregard as they choose, and we are not in the field of discourse that we enter upon in cases like Longman, for example, where a judge is directing a jury about how they may not reason or directing a jury about dangers of reasoning in a particular way. Now, what follows from that, for the moment, I simply do not know. But I think, until we get the relevant field of discourse identified, there is a great risk that we will slide unwittingly between the two with possibility of error.
MR BYRNE: Your Honour, the difficulty with comments made by trial judges to juries, if we can confine the issues arising in this case to that matter for the moment, is that a jury will naturally give to a judge's comments considerable weight purely by virtue of the office from which those words are spoken.
HAYNE J: And thus, if a judge in the course of what is, in truth, a comment, not a direction of law, invites attention to what the judge is saying to a jury is a permissible chain of reasoning, then a question arises whether we have slid between the two fields of discourse and, if we have, what follows from it? I simply do not know.
MR BYRNE: There is another issue perhaps arising and that is that there is a legislative provision which permits, by its express words, comment, but does not then go on to define or confine the boundaries.
GAUDRON J: Well, it does. It then prohibits certain kinds of comment, and the difficulty is, really, whether, in the face of section 20, a judge can do more than say, well, he is not barred to give evidence and you should draw no inference from it.
GLEESON CJ: And a further complication that arises, to compound the difficulties, is that when judges get into this area they often spend as much time telling juries what they cannot do as what they can do. In other words, there is a negative aspect to what judges often have to say to juries and, if I can use a neutral expression, talking about the significance of the fact that the accused has not given evidence, said anything about a point, often takes the form of telling them what is impermissible reasoning, as well as telling them what is permissible reasoning and, indeed, the interests of the accused would often require that juries be told what is impermissible reasoning about that subject matter.
MR BYRNE: Yes, there are two specific aspects of those directions which warn a jury against impermissible reasoning or impermissible speculation, they both deriving essentially from the judgment of the Court in Weissensteiner and they are dealt with by your Honour the Chief Justice's judgment in OGD. Those two particular features, which a summing up should contain, are firstly the direction that there is no way in which the failure to give evidence can be regarded as an admission of guilt and the second part of those directions is that there may be valid reasons inconsistent with guilt why an accused person does not exercise the right to give evidence.
McHUGH J: Mr Bryne, how do you reconcile those propositions with the second sentence in 20(2), which plainly indicates that a co-defendant's counsel can make the suggestion to the jury that the accused failed to give evidence because he was guilty of the offence? At another level, it seems to suggest that it is perfectly legitimate for the jury to take into account that the accused failed to give evidence in determining whether or not he or she was guilty of the offence.
MR BYRNE: Your Honour, so far as the co-defendant's comment is concerned, that is acknowledged that a co-defendant does have the right to make comments about the failure of the other defendant to give evidence. But that again is, in our submission, heavily qualified by the provisions of section 20(5) which make it obligatory upon the trial judge to comment upon the comment, as it were - - -
GAUDRON J: Since when did "may" become "shall"?
MR BYRNE: I apologise, the - - -
GAUDRON J: Has the Act been amended?
MR BYRNE: The obligation, we would submit, to make a comment upon the comment arises where the comment made by the co-defendant is not fair. That may particularly be the situation where the co-defendant's comment is to the effect that you can infer guilt from the fact that the co-defendant has not given evidence. In that situation, a trial judge would be obliged, in our submission, although I appreciate the section speaks in terms of a discretion, but there would, in that situation, be an obligation for the trial judge to correct the misconception created by that comment.
There may be other situations where the need for the trial judge to make a comment is not so obvious, and it is a question of judgment as to whether any comment is required. But the mere fact that the section recognises that a co-defendant may comment does not, in our submission, detract from the importance of the general rule that comment should not imply that the failure of the accused person to give evidence can be used in some way as evidence of his or her guilt.
McHUGH J: But the fact that the co-accused can make that comment is a matter I find troubling in terms of fitting it into the structure of your argument so as to make it coherent. It also seems to give some force to the statement in the majority judgment in Weissensteiner that although there may be prohibitions about commenting, nevertheless, the jury could take into account a failure of the accused to give evidence. There is a passage to that effect in the majority judgment.
MR BYRNE: Yes, I know the passage to which your Honour refers. It is cited in the submissions of the Crown in this matter. The right of a jury to use the failure to give evidence is different from comment about the way in which a jury might use the failure to give evidence.
The judgment of Justice Douglas in the case of Griffin [1965] USSC 127; 380 US 609 - if I can very briefly refer your Honours to that material - the particular passage is at page 615 of the report. There is a reference to a decision in California of the People v Modesto. Immediately following that the observation made:
What the jury may infer, given no help from the court, is one thing. What it may infer when the court solemnizes the silence of the accused into evidence against him is quite another.
There is nothing that can be done to prevent juries using the failure to give evidence in a certain way if they are minded to do so, although some of the directions which were contemplated in Weissensteiner, then reaffirmed in OGD and reaffirmed in RPS, those directions which inform a jury what form of reasoning is not permissible, those are, of course, designed to ensure that the process of reasoning in which a jury engages is in accordance with the law as established in section 20 but there is nothing, ultimately, that can prevent a jury using evidence in a certain way.
McHUGH J: But supposing the co-accused's counsel makes an express statement that the accused is guilty and they can more readily come to that conclusion from his or her failure to give evidence. What is the judge to do in that context? Does 20(2) authorise the judge to endorse that remark or not?
MR BYRNE: We would submit, your Honour, that section 20(2) obliges the judge to correct that remark by saying that you cannot take the silence of the accused, his or her failure to give evidence, as an admission of guilt and you must take into account in determining what weight you give to that fact that there may be good reasons why an accused person does not give evidence, which are inconsistent with guilt.
McHUGH J: But does not the "unless" clause suggest the contrary, that there is a general prohibition upon the judge suggesting that the accused is guilty, but the moment a co-defendant makes the suggestion, then the prohibition does not apply to the judge?
MR BYRNE: Once the co-accused makes the suggestion, obviously the situation is different and the trial judge is then in a position of having to correct any improper suggestion that might be made rather than making positive suggestions.
GLEESON CJ: What was the leading case before section 20 was enacted in New South Wales about this matter? I had a recollection that the background against which section 20 was enacted was that there had been a number of decisions dealing with the very common problem of a jury actually asking the judge what was the significance of the fact that the accused had not give evidence. The effect of the decisions was that the judge should say, "I'm not going to tell you".
KIRBY J: That was Greciun-King.
MR BYRNE: Yes, that, as Justice Kirby said, the case was a case called Greciun-King.
KIRBY J: It was not uncommon for juries to come back and ask. This, it seems to me, is a bit of a problem here because the judge can say, "I direct you that you shall not draw any inferences of guilt from the silence". That is at the point of law but, if you are thinking at the point of the way a human mind works, we lawyers assume that the jury obeys the judge's direction. But, unless a judge would go on and explain, "That is because we have a rather special legal system which is accusatorial. The Crown must prove. It's the heart of our liberties. It's been around for hundreds of years and it's an obligation of the Crown and that is central to our legal system", many lay people do not understand it. Most journalists do not understand it and they are agin it. Lawyers understand it, but I just wonder if judges speak to juries with an assumption that they know why they are giving this direction, whereas juries, if told by a judge, "I direct you", would be rather inclined to say, I think, without some explanation, "Well, you can say that but I can't get out of my mind the fact that he didn't come and explain that it wasn't his hat." I mean, that is just common sense really and, unless there is some explanation, it is just - lawyers can assume juries obey judicial directions, but I think they will be very sceptical, especially if they have served on a jury before.
HAYNE J: The commonsense driver underneath all that is that explanation is expected or required, and the whole point, on one point of view of these provisions, is to drive home to the jury the fact that, because it is an accusatorial system, explanation is neither expected nor required. Whether juries understand that may represent a separate field for inquiry, but that is the premise.
GLEESON CJ: And, I would add to that, most jurors are highly unlikely to understand that unless somebody tells them. The idea that silence on this subject is favourable to an accused is one I have great difficulty accepting.
MR BYRNE: It is not a question, with respect, of silence being favourable to the accused; it is a question of silence not being negative to the accused, and there is an important distinction.
HAYNE J: But silence by the judge is, I think, the thrust of the Chief Justice's inquiry, is it not?
MR BYRNE: Where a judge remains completely silent there are dangers, as has been recognised in the cases, that a jury may take the wrong inference from that fact. In our submission, the wrong inferences are identified by much of what is said in the majority judgment in Kops' Case, but apart from warning a jury against the wrong use of the failure to give evidence by an accused person, a jury should not be told that they can use that as positive evidence of the accused's guilt. That is the important distinction or the important prohibition, and that is essentially what section 20 proscribes, in our submission.
GLEESON CJ: But section 20 was presumably, at least in part, intended to overcome a highly unsatisfactory situation that existed where, if a jury asked the judge what they could take from the accused's silence, the judge had to decline to answer the question.
MR BYRNE: Yes, and section 20 overcomes that in a way which provides that the judge can inform the jury, but inform the jury in a manner which is not unfavourable to the accused.
GLEESON CJ: Well, there is another problem. How you would classify directions as being favourable or unfavourable, I am not sure. Directions are either right or wrong, fair or unfair, just or unjust, but is it favourable or unfavourable to an accused to give a balanced exposition of the law on some particular subject. There would be something in it for an accused and something in it for the Crown on most subjects, I would have thought.
HAYNE J: Which again invites attention to whether this is a direction of law or is it the judge commenting on the evidence?
MR BYRNE: Well, it is properly categorised, in our submission, as a judge commenting on the evidence, but it is an important question of law what the legitimate content of that comment might be.
HAYNE J: And it becomes a direction of law if a judge tells a jury, "I tell you, members of the jury, you may reason in this fashion. I tell you with the authority of my office you may go from A to B to C to conclusion D."
KIRBY J: But if the judge comments, the jury would infer that the judge is commenting in a lawful manner and using his or her authority to say, "I reason in this way; therefore you may reason in this way."
MR BYRNE: And the general area to which most of this is related is the onus and the burden of proof which is, of course, a matter of law. If a jury is told that they can use evidence in a certain way, namely as probative of guilt, that is a direction of law, even though it may be - - -
GLEESON CJ: Take a very common form of judicial expression: you may think, but it is entirely a matter for you, that. Is that a direction or a comment?
MR BYRNE: That is a comment, in my submission. But that is a comment which is - I suppose it should be said the subject matter of the words that follow may categorise that observation as being a direction rather than a comment. But it is certainly - where the words are introduced by the observation, "You may think it is matter for you", that would seem to indicate comment rather than judicial direction. But it may depend on the words that follow.
Your Honours, one of the other matters raised when the matter was before the Court on the earlier occasion was the extent to which this Court's decision in RPS had affected the decision of the Court in Weissensteiner.
GAUDRON J: Well, there may be an underlying question which is the extent to which section 20 has affected it. Now, do not forget section 20 is different from the mere absence of a provision, which was the situation in Queensland. There was certainly nothing like the prohibition in the second part of section 20(2). The question in Weissensteiner really was one of the inferences to be drawn from unexplained facts. So there may be a first question about section 20 before you get to RPS and Weissensteiner itself.
MR BYRNE: Your Honour, so far as seeking to reconcile RPS and Weissensteiner is concerned, we would submit that the answer is, in fact, contained in the joint judgment in RPS.
GAUDRON J: Well it may, but I do not think the joint judgment addresses the further question whether, absent some attack by the accused, you could ever now give a Weissensteiner direction.
MR BYRNE: The joint judgment appears to significantly limit the circumstances in which it might be appropriate to give a Weissensteiner direction. Indeed, the - - -
GAUDRON J: Well, that really distorts what RPS is about and what Weissensteiner is about. Weissensteiner was always about special, particular circumstances. There is no foothold from anything that was said in any of the judgments in Weissensteiner, is there, for the proposition that a defence about inferences more easily being drawn - that a direction, well, a comment that they can be more easily drawn, can, much less should, be given in any case other than a very particular sort of case.
MR BYRNE: The answer to your Honour's question is no, but there is an observation in the joint judgment in RPS which, in our submission, illustrates and, with respect, confines the circumstances in which the reasoning which was permitted and acknowledged in Weissensteiner would be permissible following the introduction of section 20. Can I refer your Honours to paragraph [27] of the joint judgment in RPS? The second sentence of paragraph [27] is in these terms:
The most that can be said in criminal matters is that there are some cases in which evidence (or an explanation) contradicting an apparently damning inference to be drawn from proven facts could come only from the accused. In the absence of such evidence or explanation, the jury may more readily draw the conclusion which the prosecution seeks.
Then reference was made to Weissensteiner. But the argument that we put here is that "the jury may more readily draw the conclusion which the prosecution seeks" is not based on the failure to give evidence. It is because there is nothing to diminish the probative value of the evidence which is given by the prosecution witnesses.
GLEESON CJ: But just sticking with those two sentences in paragraph [27] that you read out to us, in a case of the kind there referred to and in a jurisdiction where section 20 applies, can a jury be told that?
MR BYRNE: A jury can be told that because there is nothing which is before them which diminishes the strength of the prosecution evidence on a particular matter, then that may make it easier to accept it.
GLEESON CJ: So that consistently with section 20, in an appropriate case, the jury may be told that in the absence of contradiction or explanation from the accused, the jury may more readily draw the conclusion which the prosecution seeks.
MR BYRNE: In an appropriate case the jury can be told that the absence of an explanation does make it possible for them to more readily accept the prosecution's contended conclusion.
GLEESON CJ: And that is not inconsistent with section 20?
MR BYRNE: No, not in our submission.
GLEESON CJ: And now what, in your submission, would be an example of an appropriate case?
MR BYRNE: Well, it depends - the jury can certainly be told that the evidence is not contradicted. But the fact that the evidence is not contradicted does not make the evidence stronger.
GLEESON CJ: But what is an example of a case where, consistently with section 20, the jury can be told that the fact that the accused has not contradicted some evidence means that the jury may more readily draw the conclusion which the prosecution seeks?
MR BYRNE: Weissensteiner itself is - - -
GLEESON CJ: That was an explanation case rather than a contradiction case.
MR BYRNE: Explanation in the sense that it was the circumstances called - where those circumstances were considered together, they fairly called for an explanation from the accused and there was no contradiction of the Crown's contention. There are two sides to it, perhaps.
HAYNE J: What does "fairly called for an explanation" mean? When, in a criminal trial, can you say that an explanation is "fairly called for" from the accused?
MR BYRNE: Where the evidence is such that, where it is not contradicted or challenged, that it, by itself, would constitute proof beyond reasonable doubt of the charge, because an accused should not be called upon to answer a case which does not establish by itself his guilt beyond reasonable doubt.
The question of whether or not the failure to give evidence can bear upon the probative value of the prosecution evidence is addressed in paragraph [36] of RPS, in the joint judgment. In the second half of paragraph [36] there is a sentence which commences:
The trial judge was also wrong to direct the jury that the election not to put forward any denial or contradiction might lead them more readily to accept the evidence given by the witnesses for the Crown -
That proposition contained there, in our submission, is an important part of the judgment in RPS and it does impact upon what was said, particularly in the joint judgment of Justices Mason, Deane and Dawson in Weissensteiner, where their Honours said that the failure of an accused person can bear upon the probative value of the evidence in the Crown case. The important observation made in that part of the judgment in RPS which I have just read out is that the failure to give evidence does not make the Crown case, or the evidence given by the witnesses in the Crown case, any stronger; it is simply a situation that there is nothing to diminish its strength.
If the evidence given by the prosecution witnesses is not by itself enough to prove guilt beyond reasonable doubt, then the failure of the accused to give evidence cannot, as it were, provide the additional probative force required to convert an inadequate Crown case into one which does establish guilt beyond reasonable doubt. That analysis is one which was effectively made by Justice Sopinka in his Honour's judgment in the case of Noble in the Supreme Court of Canada.
GLEESON CJ: What is the reference to that?
MR BYRNE: The reference is in the Crown submissions. It is (1997) 1 SCR 874. It is also in 146 DLR (4th) 385. Can I take your Honours very briefly to paragraph [79].
GLEESON CJ: I see the Supreme Court of Canada divided 5:4.
MR BYRNE: Yes, it was a narrow decision. Paragraph [79] of the judgment of Justice Sopinka sets out what we would submit are the principles to be applied. His Honour sets out three specific principles:
(1) Once the Crown has proffered a case to meet, the silence of the accused can be used in determining whether an accused is guilty beyond a reasonable doubt.
(2) Inferences of guilt may be drawn from the accused's silence "only where a case to meet has been put forth and the accused is enveloped -
in what was described in the judgment of the Chief Justice as a -
`cogent network of inculpatory facts'".
(3) The silence of the accused means that the evidence of the Crown is uncontradicted and therefore must be evaluated on this basis without regard for any explanation of those facts that does not arise from the facts themselves.
That was the three ways which the Chief Justice considered that the fact of silence might be used.
GUMMOW J: What statutory or constitutional provisions were they construing? That appears in paragraph [56], does it?
MR BYRNE: If I can just refer your Honours to it, I think it is section 6 of - - -
GUMMOW J: It appears in paragraph [56], does it not?
GAUDRON J: Yes, section 7 of the Charter. Also there is the Evidence Act.
MR BYRNE: Yes, there is a specific provision in the Evidence Act prohibiting comment, which is set out in the judgment of the Chief Justice at paragraph [36]. Section 4(6) of the Canada Evidence Act provides as set out there, that:
The failure of the person charged.....shall not be made the subject of comment by the judge or by counsel for the prosecution.
There is one part of the judgment of the Chief Justice that perhaps should be referred to in that context.
GUMMOW J: You are quoting this to assist the construction of section 20 of the Evidence Act, New South Wales, or what? Why are we being taken to this case?
MR BYRNE: The reason that we submit this case is relevant is because it analyses the use which can legitimately be made of the failure of an accused person to give evidence. It can never be used, according to the majority, as evidence of guilt. It can be taken into account in - - -
GAUDRON J: I have not read this, but I do not see why in an ordinary case the three examples of the way in which it could be taken into account is not really to suggest evidence of guilt.
MR BYRNE: Well, your Honour, I should clarify that those three propositions set out in paragraph [79] are derived from the judgment of the Chief Justice. It is after that that - - -
GAUDRON J: No, it says "might be considered" not may be considered; are they suggesting that some of these may be impermissible or that they are all permissible?
MR BYRNE: Yes, well, in our submission, no. The first proposition is not permissible because that is using silence as evidence of guilt; the second proposition similarly uses silence as evidence of guilt and is therefore impermissible.
GUMMOW J: Now there is a discussion at paragraph [44] in the Chief Justice's judgment in Noble of Weissensteiner; is there any discussion of Weissensteiner by Justice Sopinka?
MR BYRNE: No, he does not refer to it. It is referred to, it should be said, in the judgment of Justice McLachlin, as her Honour then was. That is at paragraph [119], at the end of the case, where reference is made to that part of the joint judgment of the Chief Justice Sir Anthony Mason, Justices Deane and Dawson, that important section in Weissensteiner where it is said that:
the failure of the accused to give evidence can "bear upon the probative value of the evidence which has been given -
and it is our submission that "the failure of the accused to give evidence" can only "bear upon the probative value of the evidence" in the Crown case by reason of the fact that there is nothing in the case for the accused to diminish the probative value of the evidence in the Crown case. It cannot be used as a positive fact adding to the evidence that is contained in the Crown case. It is simply the absence of a negative rather than the presence of a positive.
HAYNE J: Can I take you to the last paragraph in the reasons, particularly of Justice McLachlin.
MR BYRNE: Yes.
HAYNE J: It is there said, in paragraph [120]:
The second question is whether the trier of fact should believe the Crown's evidence. At this second stage, and only at this second stage, the judge or jury may consider the absence of evidence -
et cetera:
Any conviction will be based on the Crown's unchallenged evidence. To say that an inference has been drawn from the accused's failure to testify is only to say that the Crown's evidence stands unchallenged.
What do you say about that proposition? Is that right, or is Weissensteiner going further? Do you say that some proposition further than that given by Justice McLachlin is tenable or desirable? What do you say about that analysis?
MR BYRNE: We say that what Justice McLachlin has there said is of itself correct but that it should not be taken as being that the failure to give evidence provides some positive addition to the probative value of the prosecution evidence.
GAUDRON J: Well, for myself, I do not think that what Madam Justice McLachlin there said is correct. There is a difference between saying the evidence is uncontradicted or unchallenged and in saying that an inference may be drawn from the accused's failure to testify, or even may more readily be drawn. If the evidence is unchallenged, it is unchallenged. That is all that needs to be said.
MR BYRNE: Yes, well - - -
GLEESON CJ: Would a trial judge be entitled to describe the relevant portions of the evidence relied on by the Crown, if the description were accurate, as uncontradicted?
MR BYRNE: Yes, in our submission, if that be the case.
GLEESON CJ: And that would not amount to a comment within the meaning of section 20?
MR BYRNE: No.
GLEESON CJ: So a trial judge, in a case like RPS, a sexual assault case, would not contravene section 20 by describing the evidence of the complainant every time he mentioned it as the uncontradicted evidence.
HAYNE J: It would not do much credit to counsel's cross-examination.
GAUDRON J: No, or to the plea of not guilty, or to any record of interview.
MR BYRNE: The difficulty with that is that, obviously it will depend on the circumstances of the case, but the fact of contradiction is not the only matter. A case can be very effectively challenged without contradicting it. A case can be very effectively challenged by discrediting the basis on which the evidence is given. There does not need to be an alternatively case put. If an allegation is made against an accused person, he can choose to challenge that case by discrediting it without ever seeking to contradict it. He can simply say, "It is an unreliable allegation", and put no positive allegation to the contrary.
GLEESON CJ: Well, that just depends on the way the case is conducted.
MR BYRNE: Certainly, but the fact of contradiction is not, with respect, the only test to be applied. One has to look at the way the case is run and it may be of great significance to say that whilst the case has not been positively contradicted, there has been a very significant attack made on its reliability.
GLEESON CJ: That is why I was wondering what the word "unchallenged" - and I have a similar uncertainty about the word "uncontradicted" - but what the word "unchallenged" means in a context like this. This judgment says, "The Crown's evidence stands unchallenged". There was presumably a plea of not guilty.
MR BYRNE: Yes.
GLEESON CJ: Presumably, consistent with this passage in this judgment, the plea of not guilty is not itself taken as relevantly a challenge to the Crown's evidence.
MR BYRNE: Where a Crown case is neither challenged nor contradicted then clearly the position of the accused person is, apart from being extremely unusual where there is a contested case, the accused person there is left with little to run with, but that is an extremely unusual case, to see a prosecution case neither contradicted nor challenged in any positive sense.
Your Honours, the prosecution submissions, if I might just briefly refer to some of the things that are there said and ask your Honours to look particularly at paragraph 13 of the submissions that have been filed on behalf of the Crown, in paragraph 13 of the prosecution's submissions there are a series of matters which are identified as matters which should be the subject of a summing up in a criminal trial. Those directions which are contained at numbers 6 to 10 in order:
6. Silence at trial does not amount to an admission of guilt
7. No inference of guilt can be drawn from exercise of right to silence at trial
8. There may be many unknown reasons for exercise of right to silence at trial
9. Silence at trial cannot convert an insufficient case into a sufficient case
10. Silence at trial cannot fill in gaps in Crown case -
none of those five propositions is in any sense challenged, but the propositions that appear at paragraphs 12 and 13 appear, in our submission, to run counter to the thrust of what is contained in propositions 6 to 10. In other words, there is an inconsistency in directing a jury in the terms contemplated by these suggested model directions. What is contained at paragraph 12, namely that:
Uncontradicted evidence is safer to accept than evidence which is contradicted -
could never be supported as a general proposition. Equally, the following comment that:
doubts about witness reliability.....may be more easily discounted in the absence of contradictory evidence -
is not a statement of general application. Doubts about the reliability of a witness may well remain and, in our respectful submission, should remain, irrespective of whether the accused person expressly contradicts the allegation made by that witness whose reliability is in question. That direction, which is contemplated in paragraph 12, is one which effectively means that the silence of an accused person can be used as evidence in support of guilt because - - -
GAUDRON J: And to plug gaps.
MR BYRNE: Yes, because it overcomes what might otherwise be seen to be weaknesses in the Crown case and that is, as your Honour has just said, with respect, plugging gaps. As paragraph 10 says, that cannot be done. Equally, the proposed subject of directions in paragraph 13, namely:
If an inference of guilt is open on the evidence, silence may make it safer to draw such an inference -
GLEESON CJ: Well, that is the $64 question, the word "may". I should have thought that any jury or any person to whom that proposition is enunciated would say, "When may that be the case?"
HAYNE J: And safer than what? What is the comparison? A case where the evidence is different? Yes, if the evidence is different the evidence is different. And may when?
MR BYRNE: It cannot necessarily be said that it is safer than a situation where the accused person has given evidence because it may well be - - -
HAYNE J: Not without knowing what the evidence is.
MR BYRNE: Certainly.
GLEESON CJ: But everybody seems to agree that there are some cases in which, consistently with section 20, a jury can be told that they may more readily - I forget the precise words of that paragraph - accept the Crown case because of the accused's silence.
MR BYRNE: Not because of the accused's silence, but because there is nothing to challenge or contradict that for which the Crown contends in its case.
GLEESON CJ: They may more readily accept the Crown case, the accused being silent. That is the question. What are the cases in which consistently with section 20 it is appropriate to give that direction to a jury? Is Weissensteiner one of them? If Weissensteiner was tried again tomorrow in a jurisdiction that had section 20 in it, may we take it that it would be such a case?
HAYNE J: Are you saying when a judge says that, any more than Justice McLachlin's statement, "there is no explanation proffered"? Or, are you inviting a jury to make some notional comparison? What does it mean to say the jury may more readily infer guilt? More readily than what, may, when?
MR BYRNE: It is, in our submission, not necessary to give a direction to juries in that form, although if a jury were given directions in that form in a case such as Weissensteiner, merely that because there is no explanation or contradiction, then the contention for the Crown may be easier to make. That direction could not be said to be objectionable in the circumstances of a case like Weissensteiner, but it does not make it necessary to give such a direction.
The kind of directions that are contemplated here in the Crown's submissions, and particularly at 12 and 13, seem to imply that there is some positive fact, some positive evidence in effect, to be drawn from the fact of the accused's failure to give evidence. That is, in our submission, the impermissible reasoning.
GLEESON CJ: But in your submission, if Mr Weissensteiner was tried tomorrow in New South Wales, would the direction that was given in Weissensteiner's Case stand?
MR BYRNE: In our submission, it should not, because there were aspects of that direction which effectively said the Crown case was stronger by reason of his failure to give evidence.
GAUDRON J: You would say that there were certain comments that could be made: "there is no evidence to support that hypothesis"; "there is no explanation of this"; "if you treat that as relevant", and so on.
MR BYRNE: Yes. Or, it would be relevant to say that a particular proposition advanced in one of the witnesses' evidence was not contradicted by any other evidence to make that observation. That is legitimate as well.
GLEESON CJ: I forget the precise detail of Weissensteiner now, but I think the following is close enough. Could the judge, consistently with section 20, say, "The Crown relies upon the fact that the accused was found with all these apparently personal and valuable possessions of the missing people and he has given no explanation consistently with their still being alive, or his being innocent of their death, for how he came to be in possession of those valuables. It is open to you more readily to accept the prosecution case by reason of the fact that he has given no such explanation."?
MR BYRNE: In our submission, that direction would be focusing too much on the failure to give evidence.
GLEESON CJ: That direction sounds very much like what was referred to in that paragraph of RPS that you took us to earlier. I meant it to be like that anyway.
MR BYRNE: I understand what your Honour says, but in RPS it was simply the absence of any explanation, not the failure of the accused to put something positive forward.
GLEESON CJ: I see. So, in your submission, consistently with section 20, if Mr Weissensteiner was tried in New South Wales tomorrow, the judge could say, "There is no explanation of how the accused came to be in possession of those valuable personal belongings. There being no such explanation, you may more readily accept the prosecution case"?
MR BYRNE: Yes, I think that is permissible.
GLEESON CJ: More readily than what?
MR BYRNE: More readily than if there were an explanation which - - -
GLEESON CJ: That would depend on the explanation, would it not?
MR BYRNE: This is perhaps one of the difficulties in this area, that the invitation to, as it were, draw an adverse inference against the accused person by reason of his or her failure to give evidence places that person in a worse position than they should be by reason of their exercise of the right not to give evidence.
GAUDRON J: Is it one of the difficulties in this area, although I do not think it is often expressed in these terms, is that there are situations when silence is itself evidence.
MR BYRNE: The recent possession cases are one area, I suppose.
GAUDRON J: Yes. If you treat the silence or the failure to explain as itself evidence, you perhaps avoid any of the problems with section 20(2) because you can say, "You can take account of the fact that no explanation has been given. You can treat that itself as evidence upon which the prosecution relies to strengthen its case, that you should infer such-and-such".
MR BYRNE: The recent possession cases and cases like it are difficult in this area because in those cases there is effectively an onus on the accused person to give an explanation.
GAUDRON J: I would have thought that was probably the explanation of Weissensteiner too. I mean, if three people put out to sea in a boat belonging to two of them and the person who does not own the boat comes back with the boat and their personal possessions and their valuables and does not say how come he got the boat or their valuables, you would think you were in the same territory, would you not?
MR BYRNE: Or, worse still perhaps, gives a number of inconsistent versions about what became of them.
GAUDRON J: That may be consciousness of guilt evidence that is in a separate category.
MR BYRNE: Certainly. Weissensteiner is an unusual case because it was a case that can be clearly categorised as a case which in practical circumstances called for an explanation from the accused. Without something from the accused the inference that he was guilty, that the people had died and that he was responsible for their deaths, was an overwhelming one. So that it was an unusual case in that respect. But the recent possession cases are different and it is an issue that is raised in the prosecution's submissions because - - -
GAUDRON J: Why are they different?
MR BYRNE: Well, with recent possession there is a presumption that the person in possession of the goods, the person proved to be in possession of the goods, is either the thief or the receiver, unless there is an explanation. So that there is an onus placed - - -
GAUDRON J: Yes, but why is that not exactly the same? A jeweller's shop is robbed, ten minutes later the man is found with the contents of the jeweller's window, and the policeman says, what are these? "Ah," he says, I don't know." You would think that also called for an explanation in exactly the same way as Weissensteiner.
MR BYRNE: Well, it is an overwhelming circumstantial case, on its face, but - - -
GLEESON CJ: Different people may have different ideas about what calls for an explanation. The mental processes by which people reason about facts may differ from person to person. I know some people who are always thinking that things call for an explanation, and others who take a much more robust attitude. Who is to say that one is right and one is wrong? And, is a judge entitled to say, well, either view is open to you. You may think that this calls for an explanation, you may think that the fact that this evidence is uncontradicted or unexplained strengthens the Crown case.
GAUDRON J: But, what the Chief Justice puts to you still has to be assessed in the context of the onus of proof beyond reasonable doubt. What you are talking about, perhaps, in the explanation cases, is evidence which, absent explanation, is evidence capable of supporting a conclusion of guilt beyond reasonable doubt.
MR BYRNE: We would, with respect, go further and say, not evidence capable of supporting a conclusion of guilt beyond reasonable doubt, but evidence which does establish guilt beyond reasonable doubt, because that is the important distinction in the Canadian case and that the distinction between the judgment of the Chief Justice and Justice Sopinka is that if all the evidence can be said to be is capable of proving guilt beyond reasonable doubt, but does not in fact prove it, and the accused gives no explanation and the accused's silence is used to convert that evidence, which is only capable of proving guilt beyond reasonable doubt into evidence which does prove guilt beyond reasonable doubt, then silence is being used as probative of guilt.
McHUGH J: But not necessarily, is it, because the failure to give the explanation may eliminate one of the hypotheses. Supposing the judge says to the jury, "You may think that the evidence establishes beyond a reasonable doubt that a bullet from a gun owned by the accused killed the deceased. You may also think that the evidence establishes that the accused had possession of the gun the day before the murder and on the day after the murder. You may infer from his failure to give any evidence that it is more easy to come to the conclusion beyond reasonable doubt that he killed the deceased." Would that be a misdirection?
MR BYRNE: Yes, in our submission it would. What the judge in that circumstance should say is, "You have that evidence which is contended by the Crown to be a circumstantial case establishing that the accused was the person who committed the crime. There is not any evidence which challenges or contradicts that contention. It is therefore for you to access whether or not you are satisfied beyond reasonable doubt that that contention is made out."
McHUGH J: It must follow from that, Mr Byrne, that counsel would be entitled to a direction to the jury that they could not take the accused's failure to give evidence into account in determining that inference.
MR BYRNE: In our submission, the preferable position is not to refer to it.
McHUGH J: Well, I appreciate that, but it must follow, as a matter of law, that the jury cannot do it.
GLEESON CJ: I cannot understand why you would prefer the position that the judge should not refer to it if the alternative is that he tells them that they cannot take it into account. Not referring to it would ordinarily have devastating consequences for the accused, would it not?
MR BYRNE: Not necessarily - - -
GLEESON CJ: Well, it is a lottery then. It depends on whether there is somebody in the jury who has been on a case before where the accused has given evidence, has heard the accused's barrister jump up and down and say, "What a wonderful thing that was".
MR BYRNE: That, in reality today, is not a matter which can be relied on in criminal trials. Criminal trials are generally, in our submission, conducted on the basis that the jury are aware that the accused is entitled to give evidence.
GLEESON CJ: Unless it is complicated if one of two co-accuser's give evidence and talks about the other one skulking in the background.
MR BYRNE: Yes, that clearly establishes complications.
GLEESON CJ: Let me take a case that I think - I may be wrong - I think is close to Plomp. A man goes for a surf with his wife and he comes out and she does not. Nobody actually sees what happens to her but there is a circumstantial case, perhaps motive, perhaps threats, whatever. Now, what direction, consistently with section 20, does the judge give the jury about the fact that the man has remained silent and has not given any explanation to the police, or any explanation in the witness box, about the events of the occasion when they went into the surf together and he was the only one who came out?
MR BYRNE: Well, the judge is entitled, and perhaps should direct the jury that the evidence that the Crown relies on in support of the contention that the accused was responsible for the woman's death has not been contradicted and, if it be the case, has not been challenged. That is an unusual situation but the observation - - -
GLEESON CJ: Well, I was thinking not so much of contradiction of the evidence about motive or threats, or whatever, but simply about the man's silence on the events of the day, I mean, the swim, silence about the events of the swim.
MR BYRNE: His silence is a matter which is neutral in terms of providing positive proof of his guilt.
GLEESON CJ: In the interests of justice, if that is right, the jury had better be told that because I would strongly doubt that most jurors would regard it as neutral if the judge maintained a silence on the subject.
MR BYRNE: We have not challenged the proposition that a jury should be told that the silence of the accused should not be regarded as an admission of guilt. I appreciate that is a slightly higher thing, whether the jury should be told that they should not use it adversely to the accused in inferring his guilt.
McHUGH J: But a more realistic problem may be that the jury use the silence to draw inferences as to facts which they then use. Take the case of a hat. Why could not the judge say, "From the failure of the accused to give any explanation as to how his hat came to be at the premises, you may infer that he was at the premises on the occasion in question". Now, can you go that far? How is that inconsistent with presumption arising from the right to silence?
MR BYRNE: In our submission, you should not go that far. All that can be done is to say, "You have heard evidence that the hat found at the scene of the crime was associated with the accused. The prosecution would ask you to draw an inference from that fact that the accused was, therefore, the person who committed the crime. There has not been any contradiction or challenge to that inference" - - -
McHUGH J: That might depend on the circumstances.
MR BYRNE: Certainly.
McHUGH J: Whether there was likely to be a crowd there. The prosecution case may be in two stages: one, you may infer that the accused was there and that nobody else was there, which is the second step. From that you then conclude guilt. But do your submissions go so far as to deny the right of the judge to direct the jury that they can make findings as to other facts?
MR BYRNE: He is entitled, with respect, to inform them that the fact that the evidence in relation to that matter has not being contradicted or challenged leaves that evidence in a stronger position, perhaps, than it may be if it was challenged.
GAUDRON J: There is a difficulty about this, is there not, as Justice Hayne pointed out right at the beginning? We are in the discourse of evidence. Now, the prosecution usually, itself, invites a jury to reason in a particular way.
MR BYRNE: Yes.
GAUDRON J: The defence will suggest that they should not. Why is there any need for any comment at all unless either the prosecution or the defence has suggested a line of reasoning that is impermissible?
MR BYRNE: There is not, with respect, any need for comment.
HAYNE J: Thus the question may become - at least a relevant question may include the question whether it would be misdirection for insufficiency for a judge simply to say to a jury, "The accused is entitled to give evidence. He has not done so. There may be very many reasons why the accused has not done so. Draw nothing from that fact." Now, is that misdirection by the judge in, say, a Weissensteiner case? Is there an insufficiency of assistance to the jury? Unless there is, then perhaps focusing on whether a judge may go further may perhaps distract attention from the basal question that is presented.
MR BYRNE: In our submission, your Honour, it would not be in error for a judge to give directions of the kind your Honour has canvassed in a Weissensteiner-type case.
McHUGH J: But for at least a century judges have commented on all the facts of the case and have been permitted to do so. Some judges have commented in very strong terms. It has always been held that they are entitled to do it so long as they make it clear that the question of fact is for the jury. If a judge decides to do - to assist the reasoning process of a jury by making some comments, where do you get the rule that says he cannot? It must be derived inferentially from the fact that you cannot presume guilt from a failure to give evidence.
MR BYRNE: The words of the section are, with respect, much stronger in the sense that they say "nothing in the direction can suggest", it sets a very - - -
McHUGH J: Yes, I accept that. But on the other hand, this is a statutory authority of the judge to make comments on the failure to give evidence. Now, that has to be read together with the common law, the nature of the adversarial system and other such matters, but that said, can you cut down that statutory authorisation in any other way than by relying on anything other than the presumption of innocence?
MR BYRNE: It is not simply the presumption, there are a number of factors which combine to provide that the thing the judge is prohibited from saying is to invite the jury to regard the evidence as more reliable, as more credible, as of greater probative value, by reason of the fact that the accused has not given evidence. That is where the line is drawn. Once the directions suggest, as the statute says, that the fact the accused person has not given evidence can be used towards positive proof of guilt, then the prohibition is breached.
CALLINAN J: Mr Byrne, why is not this case covered by what the majority said in RPS in paragraph [20]? Why is not what the trial judge said here at least a subtle illusion to suggest that the appellant did not give evidence because he believed that he was guilty?
MR BYRNE: Your Honour, in our submission, it is covered by section 20. The submission that we made at the outset of this case when it was before the Court on an application for special leave was that the things said by the judge were a breach of section 20.
CALLINAN J: But as the majority said, section 20 should be construed in paragraph [20] of the judgment in RPS. Why does that not cover it?
MR BYRNE: Well, in our submission, your Honour, it would, together with what your Honour said in your Honour's judgment - - -
CALLINAN J: I went a bit further than I think anybody else.
MR BYRNE: But it certainly covers our position here.
CALLINAN J: That is why I am referring you to paragraph [20] though, because I went further.
MR BYRNE: Your Honour, in our submission, the application of the principles in RPS as contained in section 20 to the circumstances of this case must result - - -
CALLINAN J: For myself, at the moment I do not see why you have to go beyond that paragraph. I may be wrong but that is my provisional view.
MR BYRNE: May it please your Honour.
McHUGH J: Mr Byrne, can the judge make any comment concerning the mode of reasoning that the jury itself is entitled to employ?
MR BYRNE: The judge is entitled to give directions to the jury about the mode of reasoning they may use, but he or she cannot give directions which suggest to the jury that they can use the failure to give evidence as some positive evidence of guilt. Apart from that prohibition, there can be assistance given to the jury in reasoning towards a conclusion.
McHUGH J: As the Chief Justice has pointed out to you, it is probably more important for the judge to direct them as to what they cannot do, is it not?
MR BYRNE: I am sorry, your Honour?
McHUGH J: It is probably more important that the judge direct them as to what they cannot do in fairly concrete terms rather than make some general abstract statement or refrain from commenting himself or herself.
MR BYRNE: Yes, certainly. That appears to be the thrust of the suggested directions proposed by the Crown, that many of those are in fact negative directions, as it were, in the sense that they alert a jury to impermissible lines of reasoning rather than positive directions as to what they can do. We do not, as we have said, challenge those directions that warn a jury against impermissible lines of reasoning.
I am reminded, your Honours, that that issue that your Honour Justice McHugh has just raised was addressed in the joint judgment in RPS at paragraph [43] where it was said:
To attempt to instruct the jury about how they may reason towards a verdict of guilt.....leads only to difficulties of the kind that have arisen in the present case.
And then a series of directions contemplated - or a direction which has a number of features contemplated which are, in effect, directions informing the jury of the manner in which they could not legitimately reason.
Your Honours, unless there is any other matter, those are the submissions we would put to the Court.
GLEESON CJ: Thank you, Mr Byrne. Mr Game. Mr Game, we will hear you now and then we will hear what the Crown has to say in relation to both matters.
MR ELLIS: Your Honours, might I mention, the Crown has actually fleshed out, as it were, some suggested directions over and above those which are listed in paragraph 13. I have copies available for your Honour and, if now is an appropriate time, I will have those circulated.
GLEESON CJ: All right, thank you.
MR ELLIS: I might say, your Honours, that they are only guideline suggestions.
GLEESON CJ: Thank you.
GAUDRON J: What do you mean "guideline suggestions"? Either you are putting submissions or you are not, Mr Ellis.
MR ELLIS: It is not that I am not putting submissions, your Honour; I am saying that these submissions are guidelines in the sense that they may be, indeed, cans or cannots - some of them are currently worded as being things that the jury can do, but the Court may determine otherwise. The Crown submission would be then that the jury would be instructed that that line of reasoning could not be.
GAUDRON J: Yes, this seems to underline one of the assumptions in this argument so far, or in the way things have developed so far, that this is going to be done in every case. What happened to the notion that a trial judge tailored directions and comments to the particular case? Perhaps that is a fact that you can address when it comes to your turn?
MR ELLIS: I will do that.
GLEESON CJ: Yes, Mr Game.
MR GAME: If the Court pleases. Can I commence by taking up a question that your Honour Justice Hayne has raised at the outset, and more than once, which concerns the question whether or not we are in the discourse of comment or directions?
Now, we would say to that, your Honour, that when section 20 speaks about "comment", all that means is that the judge is not prohibited from saying anything about it. It does not mean that it is simply a comment. We are in the discourse of judicial directions in the sense that we are in the discourse of the judge saying to the jury how they should or should not reason or could or could not reason in respect of the silence of the accused at trial.
Now, those directions may, in fact, be directions which run counter to how the jury may themselves reason for themselves if they were left to reason about the matter without the assistance of directions.
HAYNE J: Do you accept that it is proper for a trial judge to direct a jury about the way in which they may choose to reason in this regard?
MR GAME: It is proper for a trial judge to do so, yes, and, indeed, the immediate and natural reaction for a jury will be to say, "This person did not give evidence because this person is guilty of the offence", and that will be the very focus of the jury's thoughts and it is about that that the judge will have to give particularly careful directions.
HAYNE J: Underlying all this, Mr Game, is the view about the way in which the modern criminal summing up has developed into a four, five, seven day marathon by a judge, rather than that which was suggested in Alford v Magee and certainly by Sir Leo Cussen, identify the issues for the jury, tell them so much of the law as they need to know to resolve those issues and leave it at that.
MR GAME: Well, your Honour, we agree, but the directions that we propose, which appear at page 12 of our written submissions, are in fact very brief directions and they do not go for pages and pages and pages, as the complex directions that are proposed by the Crown. Now, we are not - I think probably holes might be picked in our directions, maybe, quite quickly, but we are proposing that simple directions be given. But the importance of this is that the judge is directing the jury on their entitlement to reason in a particular way. It is about their reasoning process.
GLEESON CJ: Mr Game, is this a convenient time for us to break?
MR GAME: Yes, certainly, your Honour.
GLEESON CJ: Then we will adjourn until 2.15.
AT 12.45 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.16 PM:
GLEESON CJ: Yes, Mr Game. Now, that microphone is not going to be fixed for at least a fortnight or so, so we can offer you no relief in that regard.
MR GAME: One of the other matters that arose this morning concerned the circumstances in which section 20 was introduced and the recommendations of the Australian Law Reform Commission. Now, the particular problem in Greciun-King, of course, was that the accused in that case had made an unsworn statement and the jury were asking for directions about that, and the judge was unable to saying anything at all, having regard to the prohibition in section 407(2). That prohibition went shortly before the introduction of the Evidence Act that went in 1994.
The extracts that we have put in our written submissions at paragraphs 17 and following, in our submission, support the proposition that in introducing section 20, or in recommending section 20 - the abolition of the inability to comment - that the Law Reform Commission both proposed against the abolition of the unsworn statement and thought that the introduction of it would be in the context of circumstances where an unsworn statement could be made. In select passages we have extracted in paragraph 18, they have made some extremely cautionary remarks about how the failure to give evidence should be used. Of course, the reason for that is, we would submit, that once the option of an unsworn statement goes, then the logic that the accused did not give evidence because he could not, becomes much weaker.
The probity of silence, if that is what it be, becomes much more tenuous when there are many other considerations which come into play as to why an accused person might not give evidence including the weakness of the Crown case, including the reasons, some of which we have set out in paragraph 21 of our written submissions at page 8. This has particular significance in the context of the fact that section 20 is couched in terms of the fact that the judge "may comment". But what we draw from this is that section 20 does not - and I think your Honour Justice McHugh used the words - by saying that the judge may comment, I think your Honour said that it gives open slather. In our submission, it does not give open slather.
The principles relating to the right to silence remain in place. It is a question of - obviously one has to determine to what extent and to what weight one gives to the right to silence, but the principles relating to right to silence, as it were, on a scale of strong comment to none, remain. It is a question of identifying where that principle stands and that is what I want to come to shortly. But it is not correct to say that it is open slather, that the judge - - -
McHUGH J: But the co-accused appears to be able to make the comment. Is that not a legislative recognition that the jury are entitled to reason, from the failure of the accused to give evidence, that he or she is guilty.
MR GAME: No, your Honour. That depends first on whether or not in the particular circumstances of the case it is correct to infer that the accused did not give evidence because he is guilty. The co-accused might say, "He didn't give evidence because he's guilty and I'm innocent", but that might be a completely impermissible line of reasoning in that particular case.
McHUGH J: It may be, but nevertheless the section seems to assume that there will be at least some circumstance or circumstances in which the accused can legitimately make that comment without the jury being discharged.
MR GAME: Your Honour, just to take that example, let us say we had a case where there was a cutthroat defence; one accused was a member of Hell's Angels motorcycle club and the other accused was not and his defence was that he was minding for the other accused. His reason for not going into the witness box is that he believes he will be killed if he gives evidence. He hands a note to the judge that says, "I'm not going to give evidence because I think I'm going to be killed". Is the judge to allow the co-accused not only to make that comment but endorse it and say it is legitimate for - - -
McHUGH J: But an anterior question is whether the accused is entitled to give a note in those circumstances.
MR GAME: What if he gives evidence on the voir dire that he - - -
McHUGH J: How can he?
MR GAME: Well, your Honour, if it is a question of you drawing something from his silence, if you concede that he is able to give an explanation - and the cases say counsel must be given an option to give an explanation for why he is not giving evidence - then, in our submission, you would have to concede that you could give evidence about it.
One of the things that OGD says is that the judge should inquire from counsel as to why evidence has not been given. Once you make that concession, in our submission, you concede the possibility that you will give evidence about that proposition and, moreover, if you go beyond that, and the judge rejects it, that this would not apply in this particular instance, that you could give evidence about that particular question. For example, an accused suffers from some psychiatric disorder that makes them particularly incapable of speaking in a witness box, or something of that kind. Why could one not then give evidence about that? If one is going to go into - - -
McHUGH J: Well, plainly you can.
MR GAME: So you could give evidence - - -
McHUGH J: And give it in front of the jury.
MR GAME: But why, if you can make an explanation to the judge, can you not give evidence before the judge?
McHUGH J: You can give evidence before the jury.
MR GAME: But, your Honour, the point that I was addressing was in answer to a question that your Honour asked, about section 20(2), referring to the comment of the - - -
McHUGH J: Yes, and I said, and you have not answered it yet, you have not dealt with it, the section plainly assumes that there is some circumstance in which it will be legitimate for the co-accused to suggest that the accused did not give evidence because he or she was guilty of the offence. That is the hypothesis upon which the second sentence operates.
MR GAME: Yes, but we will put my scenario to one side, the purpose of which was to show that the co-accused might say one thing but the judge might say something very different. Put that hypothesis to one side. The point about the position of the co-accused is that if there is a co-accused in the trial, then the co-accused has rights too and those rights may be countervailing rights to the accused's right to silence and a balance may have to be reached between the two of them, because otherwise the co-accused might be deprived of the weight - of the ability to make a submission, which in the particular circumstances of that case, carried logic, shall we say, that the accused did not give evidence because he was guilty. So one brings in, in effect, another person with their own rights but that does not weaken the position of the accused at trial where there is no co-accused, in our submission.
KIRBY J: It would seem an odd interpretation of the Evidence Act to permit this exceptional case of a co-accused to undo the principle of the right of silence. I mean, it would be a very odd way for the Law Reform Commission to have done that, if that was its objective. Is there any variance between the draft of the Commission and this section? Is there any commentary in the Commission's report that explains subsection (2).
MR GAME: We will check, but the joint judgment in RPS explicitly acknowledges that the right to silence still operates in a stronger way than is posited by the final words of section 20(2) because it struck down some directions that did not directly contravene, in those terms, section 20(2). It said so in terms, that the conclusion did not depend upon the language of section 20(2). There is no qualification on the comment to the co-accused.
McHUGH J: What about subsection (3) where the judge made comment on the failure of spouses and parents and children not to give evidence. That seems to indicate that the trial judge has got a fairly wide discretion. Is that to be cut down in some way by the accused's right to silence.
KIRBY J: Presumably, it would have to be any comment made. It would have to be consistent with the fundamental right to silence. One would think so.
MR GAME: Yes, but there is no right to silence infringed in respect of the spouse but the privilege, historically, excluded comment in relation to the failure of the spouse to give evidence, so that has been swept away by subsection (3), so that, presumably, is the logic.
McHUGH J: Well, there is a bit more to it than that, they have got de factos and parents and child. They were never ever protected.
MR GAME: That is true. But, the direction in respect of de factos and spouses would presumably be a Jones v Dunkel-type direction, for instance, in an alibi case when an alibi was nominated as being the spouse and the spouse was not called.
HAYNE J: But how could that be under subsection (4)? How could we give a Jones v Dunkel in relation to a failure to call the spouse in the face of subsection (4)?
MR GAME: Yes, that is correct. Yes, I agree with your Honour.
HAYNE J: Section 20 may have to be understood from a start point of the rules about competence and compellability. It may have part of its work - I do not say all of its work, but part of its work being to inform a jury of what are the rules about competence and compellability: that the accused is competent, the accused does not have to, whatever may once have been the position, the accused spouse can, but need not, and so on.
GUMMOW J: All of this is by way of exception to section 12, really, is it not?
MR GAME: Yes, but there are specific provisions relating to the competence of the accused, your Honour. Sections 17 and 18 deal with - - -
MR GAME: Section 17 is a qualification on section 12.
HAYNE J: But in part, section 20 may be dealing with the circumstance to which the Chief Justice referred earlier: what do you do when the jury comes back and says, "Why did we not hear from the accused? Why did we not hear from the accused's spouse?", and not have a judge simply say, "I cannot tell you anything."
MR GAME: That, we have submitted, based on those passages from the Law Reform Commission, was the primary purpose of the introduction of section 20. Historically, it is somewhat like what occurred when defendants became competent and then cases such as Kops had to consider what would flow from that in terms of the directions that can be given.
HAYNE J: But it also avoids the half remembered, anachronistic memory of the juror in the jury room.
MR GAME: Yes.
McHUGH J: Mr Game, why should not one see subsection (2), in its introductory sentence, as restoring the decision in Kops' Case? One looks at it as a matter of history; the accused given the right to give evidence, and Kops says you may comment on the failure to do so. Under the influence of people such as Sir George Reid and Richard Meagher, the New South Wales legislature prohibits comment. That lasts for the best part of a century. Now we are back to Kops.
MR GAME: Well, there are two reasons, your Honour. One is that the very reasoning in Kops was based upon the proposition that you could draw an inference from silence of the nature of an admission by silence.
McHUGH J: I know, but Sir Julian Salomons, who argued the case for the accused in Kops, put it right to the court at the very beginning of his argument. He said it will effect an enormous change in the existing law and sweep away some of the most ancient and well-established rules of criminal procedure and he referred to the question about compellable to give evidence, an so on.
MR GAME: That is true, your Honour, but I was going to give a second reason, which is, which of those cases that are cited is supporting the proposition in Kops which are cases about accuseds not giving explanations. None of them are about accused persons giving evidence because they were not competent to give evidence. They were all about an accused giving an explanation in a different context - - -
McHUGH J: An out-of-court - - -
MR GAME: Yes, because it could not be otherwise because they could not give evidence in court. So, for those two reasons, we would submit that Kops is a very weak authority.
McHUGH J: It was a decision of the Privy Council.
MR GAME: Well, the Privy Council based its decision on a rejection of the reasoning of Justice Innes which was based upon what Justice Innes read into the meaning of the word "compellable", and that particular reasoning, in our submission, we would not suggest it was particularly strong. But it has no application in respect of section 20, which is a very different statutory regime. So, both the Privy Council and the Chief Justice's judgment in Kops, in our submission, really do not stand up and they particularly do not stand up in the light of the different language of section 20, from the 1893 Act, I think it was, that made an accused person competent because it spoke of them being compellable and, as I said, Justice Innes' whole reasoning seems to have been focused about the import of the notion of being compellable.
GLEESON CJ: Mr Game, what is the origin of the concept that we find in section 20(2), that is, the distinction between, what I will call a legitimate comment, and the comment that suggests that the defendant failed to give evidence "because the defendant was, or believed that he or she was, guilty"? Does that make its first appearance in this statute or is it taken from some previous statute or judgment?
MR GAME: I do not think we have seen it in any of the other articles or statutory provisions that we have examined but I will just ask - - -
McHUGH J: It seems to come from the Law Reform Commission train of reasoning, does it not? They give certain illustrations of how the principles work?
MR GAME: Yes. It is a protection against a line of reasoning from which a jury infers that he did not give evidence because he was guilty.
GLEESON CJ: But it involves a distinction that is not, at the moment, entirely clear to me, that is a distinction between what I refer to as a legitimate comment or a permissible comment, and a comment that makes a certain suggestion. I was looking at what was held to be a legitimate comment in Bataillard v The King in 1907. Justice Isaacs said:
the law remains unchanged, and comment may still be made, either that the prisoner has not made any statement as permitted by that section, or that the statement, if made under it, is not on oath, and therefore may not be considered as weighty as the evidence of witnesses under oath.
Later, he goes on to give as an example of a legitimate comment. He says:
they -
that is certain remarks -
do not in themselves exceed the legitimate comment that a prisoner exercising his right.....of merely stating facts on his own behalf, is likely to overstep the truth to save himself, and that his statement, not being on oath, is not capable of being tested by cross-examination.
MR GAME: Yes, but the point about that is that it does not tell the jury that he could have given evidence, and that is why it does not breach the prohibition that was in place.
GLEESON CJ: Do you say comments of that kind do not suggest that the accused failed to give evidence because he was guilty or believed he was guilty?
MR GAME: The difficulty with that comment is that it is a comment where he has made an in-court statement and the in-court statement was not on oath, so it is difficult.
GLEESON CJ: Where an accused has remained silent, would a trial judge, consistently with section 20, be able to point out to the jury that the consequence of the accused not giving evidence is that he has not been cross-examined?
MR GAME: That might have a problem with the right to silence if that has some content independently of section 20, but it would not - - -
GAUDRON J: It might also have a problem with the onus of proof, because all that a jury must be concerned with is a reasonable doubt, that is, by and large, any reasonable hypothesis consistent with guilt. Once you stray into notions of who is telling the truth as between a defendant and the witnesses for the prosecution, and it seems to me that can be the only basis for emphasising cross-examination, you blur that distinction where what you are concerned with is only a reasonable hypothesis.
MR GAME: Yes, your Honour, but if I could qualify that in one respect. It would be, in our submission, impermissible and irrelevant to comment on that, absent some particular reason to do so. For instance, in the context of commenting on what weight to give to an out-of-court record of interview, there might be no problem with saying that because that was not on oath and not subject to cross-examination. It is a comment that judges do make and it is not an irrelevant comment.
GAUDRON J: I am not sure about that. What was the case in which this Court said you do not instruct juries to determine in terms of why would you lie?
HAYNE J: Palmer?
MR GAME: That might introduce - - -
GAUDRON J: One comes into the same area.
MR GAME: One is going to have to say something about the nature of the evidence, what the out-of-court record of interview is and how you should regard it. If that is all you did, we would see nothing - - -
KIRBY J: Mr Game, if you look at the Law Reform Commission report, the report goes through Greciun-King and what was described by Chief Justice Street as the absurd paradox of not being able to explain. They say that what the judge said to the jury in that case was entirely correct and accurate but it just was forbidden by the statute.
MR GAME: Is that at page 143?
KIRBY J: I am looking at the interim report first of all. I do not think it has changed. Yes, 143. Then it goes on at 329 to talk about Simic in Victoria where apparently, under the law of Victoria, the judge was entitled to comment and the Full Court of Victoria in Simic in 1979 approved an explanation given by the judge which looks rather similar to that which the judge gave in Greciun-King. Remembering that the Law Reform Commission report was led in this matter by Mr Smith, now Justice Smith, in Victoria, I wonder if the true explanation of subsection (2) is that it was getting to a point similar - leave aside the co-offenders - to Simic; that the judge could comment in the sense of explaining what could be done but could not, by that comment, adversely advise the jury that the accused was to be thought of as guilty because of the offence.
I mean, if we start from a premise that a modern jury of citizens are not a group of dolts, why is it not possible for a judge, using section 20(2), to explain to them the reason behind the accusatorial system and the right to silence and to give a rational explanation? There is a rational explanation. Every lawyer understands it. I just wonder if that is not what Mr Smith, carrying along all the New South Welshmen and others into the realm of Simic, was trying to do by subsection (2), leave aside the co-offenders.
MR GAME: Yes, well we have put a case on, an unreported decision, in which he was one of the judges in the Court of Criminal Appeal in Victoria in a case, I think, called Mora, in which he makes similar observations. Mora, 29 April 1996. It was actually handed down on 30 May. I just refer the Court, without reading, to the passages that begin at page 2 of Justice Smith's judgment right through until page 5, particularly at page 4 in the middle of the page, where it refers to removal of "the right to make an unsworn statement" and that passage which says:
When that right existed the silence of an accused was more difficult to explain. Removal of that right has created a very different situation and one more difficult to assess. Any assessment of the accused's silence is made difficult by the absence of any evidence as to the reasons for the accused's silence. It seems to me that even more care is now required, particularly on an appeal, before use is made of the accused's silence against him or her if we are to avoid miscarriages of justice.
And then there is more. But, in that case, the directions were approved in circumstances where it was said there:
was a prima facie case and the applicant was one of the few persons, if not the only person, available who could shed light on critical matters.
Now that is limiting it in the particular way that it was limited in Weissensteiner.
GLEESON CJ: Well, take the example that was discussed this morning of a case like Plomp's Case, where a man and his wife go into the surf and only the man comes out. Nobody sees what happens, but there is other circumstantial evidence implicating him. What, consistently with section 20, can a jury be told about his failure to shed any light on what happened when they went into the surf?
MR GAME: In the context of him failing to give evidence, regardless of what probity one might give to his failure to give evidence, they cannot be told that they can make any adverse use of that, including, in our submission, the drawing of inferences against him. This involves a difficult distinction in a way, but the unexplained disappearance of the spouse in the surf is a circumstance in the evidence in the case. That is to say, he has gone into the surf, he has come out from the surf, he has presumably said nothing to the lifesavers; that is the evidentiary foundation for the prosecution case and particularly, if hypotheses are put to the jury such as she was taken by a shark, the jury have got the evidence about what he said or did not say at the time and they are told, in our submission, on the appropriate directions, that there is no evidence that she was taken by a shark. Now, your Honour, in a way, that direction that we propose in some circumstances might hurt an accused person more than this drawing inferences more safely proposition - - -
GLEESON CJ: Well, it is not hard to work out what a jury would make of silence on the part of the accused in a situation like that.
MR GAME: No, but, your Honour, the particular evidentiary importance of it in the trial context is when an accused person puts up hypotheses that are said to be consistent with innocence about which there is no evidence. For example, in Weissensteiner they gave up all their possessions and decided that they would go to Western Australia or that they would lead the life of monks, or a tidal wave blew them off the boat and there is no evidence about those things and the jury should be told that, but to elevate the silence at trial is to introduce a very ambiguous concept into the trial process. Even to say that you may draw inferences more safely, in our submission, there is a real problem with that concept because it invites the jury to make the use of the trial silence as evidence.
GLEESON CJ: Well, now, if the trial of Weissensteiner occurred in New South Wales tomorrow, with section 20 applicable, what, if any, direction or comment could be given or made concerning the accused's silence?
MR GAME: Well, what we would put in terms of directions is that which we have set out at page 12 of our submissions.
HAYNE J: And could the prosecutor in the case just hypothesised - - -
MR GAME: Is that Weissensteiner or the - - -
HAYNE J: In Weissensteiner re-trial in New South Wales under section 20, could the prosecutor in the course of his or her argument to the jury make any reference to the accused not giving evidence?
MR GAME: No, but the prosecutor - - -
HAYNE J: Thus, the hypothesis for consideration is one where the prosecutor is forbidden to make this argument in the course of his or her submissions to the jury, is that right?
MR GAME: That is correct, yes.
HAYNE J: And we are considering, therefore, whether in addition to whatever argument the prosecutor is permitted to put to the jury the question is one of what the judge may do.
MR GAME: Yes. Can I say this, your Honour, if the directions that we propose were accepted, the prosecutor foretelling that this would come we would be able to say to the jury, "You might hear defence counsel put that there is a reasonable hypothesis that the deceased just simply threw away their possessions, but let me tell you there is no evidence about that, and let me tell you there is no evidence about a tidal wave, and let me tell you there is no evidence about any of these other hypotheses that are being advanced". Now, in a sense, that hurts an accused person more than this proposition of drawing inferences more safely and it is founded in the evidence.
GLEESON CJ: What is there in section 20 that stops the prosecutor going on and saying, "And let me also point out to you that there is no evidence from the accused"?
MR GAME: That is a comment. He cannot do that.
HAYNE J: It is the parenthetical phrase, do you say, other than the prosecutor?
MR GAME: Yes.
McHUGH J: Mr Game, can I tell you, and I say this in respect of all counsel, what I find disappointing about the submissions in this case is that there is no discussion about the policy behind the self-incrimination principle and the need for and the extent of subrules to protect that principle and how they impact, or how they ought to impact, on the traditional right of the trial judge to make comments on the facts in evidence in a case.
I mean, the submissions do not deal at all with the policy behind the self-incrimination principle and how subrules have had to be developed to protect the efficacy and integrity of that principle, and without that sort of analysis I just feel I am groping in the dark. Other members of the Court may have a completely different view about it but that is the problem that I have at the moment.
MR GAME: For all of their weakness, we have attempted to say something about that in paragraph 20 of our submissions at pages 6 and 7. Really it is a question of how, accepting that the prosecution must prove its case, accepting that the system does not operate on the basis that the accused is required to prove anything, far do you go in your directions towards obliging the accused to make an answer by giving evidence.
McHUGH J: Yes, I know. I may be wrong about this but it seems to me that all these rules that have developed stem from the self-incrimination rule.
MR GAME: Yes.
McHUGH J: And then the question is, on the one hand, the judge ordinarily having a right to comment on the facts of the case, what is there about the principle of self-incrimination that requires the development of subrules which must take priority over the ordinary right of a judge to comment on the facts of the case? Now, until you answer that question, I have real difficulty in coming to grips with the problems posed, both by the section and the issues in this case.
MR GAME: I am not going to be able to put in argument but I will just have to keep speaking, but the strong form of the proposition is that no adverse use, direct or indirect, is to be made of the failure of the accused to assist in proving his guilt.
GLEESON CJ: Let us relate it to a concrete aspect of the case in which you are involved. An adult male takes responsibility for the care overnight of a young girl and she alleges that while she was in his care he indecently interfered with her. As a matter of fact, we know that during the night she left his house, walked a long way, found that she could not get back into her own house, let herself into a car and spent the night in a car, which she explains by saying she was afraid of your client and he does not explain that. Now, what can the jury legitimately make of that and what, consistently with section 20, can the trial judge legitimately say about that? It looks like an unexplained circumstance.
MR GAME: You mean he does not explain it at trial?
GLEESON CJ: He does not go into the witness box. It looks like an unexplained circumstance.
MR GAME: Because he does give an explanation in the record of interview which is deleted, such as it is, but he does give an explanation which is deleted from the record of interview - - -
GLEESON CJ: The jury have no explanation in front of them.
MR GAME: Yes.
GLEESON CJ: What, if anything, can the judge legitimately say about that?
GAUDRON J: Well, does that not assume something, though? He may have no knowledge of why she left. To demand an explanation in those circumstances is to assume he knows something.
MR GAME: Quite, your Honour, but there are two - - -
GLEESON CJ: Well, now, that may be one thing the judge can legitimately say.
MR GAME: Well, that is very different from what he said in this case.
GLEESON CJ: But it is very different from the judge maintaining silence. One might have thought it would be a great deal better for the accused for the judge to say that than to say nothing.
MR GAME: Your Honour, what one has to do, in our submission, is to examine a little bit more closely what one is talking about in the context of that particular scenario. What one has there is a complainant who says, "He indecently assaulted me in the car and he raped me in the bedroom." That is direct evidence. Then we have some circumstances of injuries consistent with sexual assault and she walked home during the night. They are two circumstances that are relied upon by the prosecution. Now, if he is innocent, he could give no explanation for those two circumstances. They are not matters, not only not peculiarly within his knowledge, they are not matters within his knowledge at all if he is innocent.
Now, as to the direct evidence where she says, "Well, he indecently assaulted me in the car and he raped me in the bedroom", what is the explanation that one is asking for?
GLEESON CJ: Well, the words used in the majority judgment in Weissensteiner were "explain or contradict".
MR GAME: Yes. He contradicts both of those assertions in his record of interview in explicit terms, and he is specifically questioned on those two things. So, in the joint judgment of Justices Gaudron and McHugh in Weissensteiner - - -
McHUGH J: Yes, but that is a dissenting judgment.
MR GAME: No, no, quite, your Honour, but, in the context of this argument, one is entitled to - well, I will not say on the basis of - forget about it. I have lost my train of thought - I am sorry; it is contradicted, so what one is talking about is not the failure to give an explanation, but the failure to give evidence in court. So, it is not an unexplained sexual assault; it is explained in the record of interview. What is happening, it is contradicted. What one is doing is one is drawing it more and more close to the prohibition, however one frames it, against adverse use of silence at trial.
GLEESON CJ: Taking it back to what was said in Simic, is the trial judge entitled to say, "You heard the complainant give evidence on oath. You heard her evidence tested in cross-examination. You have not heard the accused's version of what happened given on oath and you have not heard it tested in cross-examination." Is the judge entitled to say that?
MR GAME: Yes.
KIRBY J: Surely not alone.
MR GAME: But not alone.
KIRBY J: He would have to tell the jury - you see, the key to all this is what was said in the joint reasons in RPS. It is noted in your submissions at page 6:
a criminal trial is an accusatorial process in which the prosecution bears the onus of proving the guilt of the accused beyond reasonable doubt."
At the heart of that is not simply the rule against non-self-incrimination; it is a political concept of the role of the State vis-à-vis the individual. It seems to me that that is the sort of comment that subsection (2) is permitting the judge to make and not any comment that suggests that because a person in our sort of society who does not come along and give evidence is therefore guilty. That person is entitled. It is fundamental. I wish the community would understand that and I hope that jurors understand it, but they will not understand it unless somebody explains it to them.
GAUDRON J: Mr Game, for the purposes of your argument and for the benefit of the respondent's counsel, I think your answer is not correct. I do not see why that comment should be made. There may be special cases where something is put in cross-examination where it turns out that there is a failure of the defendant to call evidence which would support it. There may be special cases of that kind where it may be appropriate to make some comment about something not being on oath, but as a general rule I do not see, given that the defendant bears no burden of proof except in traditional terms, albeit that there may be situations in which there is an evidentiary onus - and it may indeed be that when you analyse Weissensteiner and cases of that ilk, you are really talking about situations in which some sort of evidentiary onus does come into play but which is a different question altogether.
But I see no reason why it would be appropriate at any stage, except in those limited cases, to refer to the fact that the accused has not given sworn evidence, because the only thing that is ever in issue is whether there is a reasonable doubt. So, when you go to what I think you have put at paragraph 29, it may be all very well to say there is no evidence of that, but I do not see why it should go further. I am sorry, I may have read something in there, but I do not understand the basis for your concession at all.
MR GAME: The only concession I made which I will probably live to regret was - - -
GAUDRON J: Is that the judge may say, "He has not given sworn evidence and he has not been tested in cross-examination". You have said that is legitimate, without qualification.
MR GAME: Well, your Honour, I think I might have made a better fist of it a little earlier when I said that in the context of a case where there was a record of interview it may be legitimate, in those circumstances, to - - -
GAUDRON J: Why?
HAYNE J: At some point, Mr Game, this case drives us back, I think, to fundamental considerations of the role of a judge at a criminal trial. For my part, and I speak only for myself, consideration of what comments a judge may make is very different from consideration of whether other comments are illegitimate and what directions a judge must give. Judges are not there to procure particular results. They are not there to advocate particular outcomes.
MR GAME: Well, yes. I do not want to go on advocating a position against myself but, of course, in the context of unsworn statements, judges did say - - -
HAYNE J: You think a bit of the foot is left, do you, and you might have it savaged off a bit further, Mr Game?
MR GAME: I will move to something that is very slightly different. I accept what your Honour says but I cannot really think of something to say that pushes that argument.
GLEESON CJ: Well, at some stage we are going to need to hear you on why we should grant leave in your case, and there is a question of the proviso that seems to be material in your case.
MR GAME: Yes. I will shortly come to the directions that were given in my case because they are directions about more readily accepting the evidence in the prosecution case. Now, part of our argument is that RPS - and RPS was a case in which there was direct evidence, but part of our case is that the effect of RPS is that directions of that kind should not be given. Directions of that kind directly, in our submission, strike against the protection of the privilege against, or the right of silence.
GLEESON CJ: Well, when you use the expression "directions of that kind" we do not need much imagination to work out where the directions in your case came from. They came almost word for word from Weissensteiner.
MR GAME: That is true, your Honour, but this was, in the relevant sense, a direct evidence case with some circumstances and the judge did not seek to distinguish between them, but, before I come to directions what I wanted to say about these kind of directions is this, if it is conceded, as we would submit that it must be, that a direction that says the "accused's evidence would not have assisted him" creates a danger that the jury would think that he failed to give evidence because he was guilty, then when you talk about more readily accepting the evidence of the prosecution witnesses because the accused did not give evidence, then the logic of it is strongly in favour of the conclusion for the jury that that is because his evidence would not have assisted him and that those two are very closely related and that is why a line was drawn in RPS and the line was drawn to restricting the use of "if at all in court silence" to more readily drawing inferences from facts proved, either those that must be known by the accused or in a stronger form, those that are peculiarly within his knowledge. That has a far less impact upon the right of silence and the logic of it in terms of the inexorability of the conclusion is far stronger.
GLEESON CJ: Does that mean that in a case like yours where the Crown relied both on direct evidence and on circumstantial evidence you would give a different direction or make a different comment in relation to the significance of silence in relation to the direct evidence, on the one hand, and the significance of silence in relation to the circumstantial evidence on the other?
MR GAME: If you had accepted that it was appropriate to give directions about drawing inferences more safely, yes, and you would give evidence about the circumstances only; you would identify the circumstances and you would restrict the directions to those specific circumstances. But, in our submission, it does not work in this case, because you cannot say why she walked home was peculiarly within his knowledge, you cannot even say that he must have known, nor can you say that it was peculiarly within his knowledge why she had injuries.
GLEESON CJ: Well, as in most circumstantial evidence cases, it is the combination of the circumstances that bites and here the combination of circumstances was a medical condition consistent with having been sexually assaulted and walking home at night, and it was the combination of those two circumstances that required explanation.
MR GAME: Yes, but the directions were not constrained in that sense at all, your Honour, and that is assuming that it is appropriate to give these directions. Our proposal is of a more extreme form, which is that no inferences should be drawn at all from the in-court silence following the Justice Sopinka line in the case of Noble that you have been taken to this morning. But those are for largely pragmatic reasons involving the protection in respect of the right of silence and the ambiguities that flow from directing juries that you can more safely infer X or Y, leaving the jury to use that as evidence that builds up the prosecution case and that that is how the jury would use it. It is saying to the jury, go for it, except that, make that evidence, draw that inference, make that weightier. But, in our submission, that is not nearly as strong as saying, except the witnesses' testimony, which are the directions that were given in this particular case.
GAUDRON J: Well, on one view - I would have thought on any view actually - the fact that she walked home, at the time and over the distance she did, gave a degree of credibility to her account with which you would not find in a case where the complainant stayed in the house thereafter, for example. But I am not too sure that it is right to say that this is a circumstantial case, because of those matters.
MR GAME: I said there were circumstances; I did not characterise it as a circumstantial case at all. In fact I characterised it as a direct evidence case in which there were circumstances.
GAUDRON J: Yes, but they are perhaps only circumstances that lend to the credibility of the direct evidence.
MR GAME: Yes, your Honour, that is our case, that is how we put it.
GAUDRON J: Undoubtedly those circumstances would have given the complainant's evidence a very great degree of credibility.
MR GAME: Yes, your Honour.
GAUDRON J: So even if you are right about, there was nothing that the accused could explain on the hypothesis - well, not on the hypothesis - on the presumption of innocence there was nothing that he could explain, there is a problem about the proviso in a case such as this, is there not?
MR GAME: No, your Honour, because the whole of the - from principles to the directions to the proviso in about two minutes, but - - -
GLEESON CJ: Yes, straight to the merits. What a terrible thing to happen.
MR GAME: Well, your Honour, we say not. The reason is because the directions that - I will have to take your Honour to the directions shortly, but what has happened is the directions have bolstered the credibility of the complainant and it is the credibility of the complainant which is the critical issue in this particular case. So if the jury might have had a doubt about her credibility, based on what emerged from cross-examination, then the accused has lost the chance of an acquittal by reason of the bolstering of that - - -
KIRBY J: It has lost a real chance if on, picking up Justice Gaudron's question, looks at the combination of circumstances, the medical evidence, the long walk, the walk at night, the sleeping in the car outside - all rather telling circumstances. It is really such a very strong Crown case that can it be said to be a real chance of acquittal?
MR GAME: Well, the correct framing of that question is whether or not the prosecution has shown that there was no substantial miscarriage of justice because, error having been established in the - it is a question of the proviso - - -
KIRBY J: There have been some recent statements - I think Justice Gaudron wrote some of them - in which it is said that a misdirection of law is itself a miscarriage of justice because even a very guilty person is entitled to have a trial according to law. Now, how does one reconcile that with the obvious practicality behind the idea of the proviso?
MR GAME: Well, your Honour, to make sense of sections 5 and 6 of the Criminal Appeal Act, you have to draw a distinction between a miscarriage of justice and a substantial miscarriage of justice. That is because, taking you through a thing you have obviously been through many times before, but I apologise for doing so, you can show error by showing either an error or omission by the trial judge at what was called unsafe and unsatisfactory, or for any other reason there has been a miscarriage of justice. Once you have that, then the onus is on the Crown to show there is no substantial miscarriage of justice.
Now, we do not say that this is not a case in which the proviso could arise for consideration. We do not say that it is a fundamental defect in the sense that is spoken about in Wilde. We accept that we are in proviso territory, as it were. But what we say about it is this, that it really depends on the framing of the directions because the framing of the directions are about acceptance of the evidence of the witnesses. Now, say the directions were erroneously framed about drawing inferences that were inexorable anyway, then the proviso argument would be far stronger. But because they are about acceptance of the testimony of the witnesses, they build up the credibility of the complainant.
The only chance that the accused person had of an acquittal in this case was if the jury had a doubt about the credibility of the complainant. That is the only possibility. Now, I have not referred the Court to this, but there is a dissenting judgment of Justice Brennan in Liberato, which is a very strong consideration of the application of the proviso in the context of directions that affect the assessment of the credibility of a complainant. His Honour dissented in that case in which there were erroneous directions in a rape case from South Australia. That is, I think, probably, the best case I can think of that would provide some assistance on this question. But could I take the Court to the particular directions that were given in this case and they appear both in the summing up and in the Court of Criminal Appeal.
If I take the Court to page 297 - the complaint of directions appear extracted in the judgment. There is reference to the effect that it exercised the
right to remain silent.....no inference of guilt.....presumption of innocence -
and then the next page, "that the presumption of innocence" being "set aside". Then the next paragraph - now, this is a passage in the second paragraph that we did not complain about, and I am concerned that I may have made a mistake in not complaining about it, but anyway that paragraph there, the second paragraph, it does contain that passage:
Those answers to the questions in that interview, with the police you must of course keep in mind, was not on oath, and was not subject to cross-examination. So you have not seen the accused testify on oath or be subjected to cross-examination.
Now, we have a complaint about what is said about his not being in the witness box, at little bit later, where his Honour said something stronger but it really is, in our submission, unnecessary to say, "You have not seen the accused testify on oath", because that is suggesting that maybe he should of but one might require more, but there is more in this case, we suggest. Now, the next words that come up:
Now the only effect -
so it is an effect, it has some weight in the case -
that his failure to give evidence may have -
so it is failure to give evidence, it is not failure to explain. It is not the absence of an explanation. It is certainly not the absence of an explanation for proved facts within his knowledge or within his particular knowledge -
and may have on you is this. His failure to give evidence -
so, again, it -
may affect the value or weight that you give to the evidence of some or all of the witnesses who have testified -
Well, there are only two witnesses who are really important in this trial and that is the complainant and her mother. So it is the complainant whose evidence is getting - so the value of her evidence - the complainant's evidence has been elevated to the detriment of the accused. Well, if evidence is getting more weight, we would submit that that must be -logically speaking, his silence must be regarded as evidence because it is increasing the weight of some other evidence. So it says:
some or all of the witnesses who have testified in the trial.....was in a position to himself give evidence about the matter.
Now, that is completely unconstrained. It is not - "in a position to himself give evidence about the matter", well, he is in a position to give evidence in the trial. It is not restricted to circumstances in the way in which Weissensteiner was restricted, and it is not restricted in the way in which RPS posited it should be restricted. "In a position to himself give evidence about the matter" could only mean to the jury if he was in a position to get into the witness box.
Now, one of our other complaints might just be interpolated here, which is that the judge did not say to the jury - and this case was before OGD incidentally - he did not say to the jury that there may be a number of reasons why the accused did not give evidence and they should not speculate about those reasons and that was a direction that was approved in RPS.
So, if he was in a position to give evidence about the matter, that means the whole matter, direct evidence, circumstances, whatever.
His failure cannot be treated as an admission. His failure to give evidence. But it may enable you to give, to help you to evaluate the weight of other evidence in the case -
So it is the same idea. It is building up the weight of the evidence.
Now, the next long paragraph is an example that the trial judge gives and the trial judge gives an example about a speedometer. It said that example concerns a direct evidence case in which the accused is there. The accused is there driving his car and the only question is whether or not he has gone over the speed limit and not only that, the example has armed the accused with a very good speedometer. So it has put him in a very good position to answer the prosecution case. Then it says, and we make this submission contrary to the submissions that are put in reply to our submissions, it:
would make the magistrate's evaluation of the policeman's evidence either more difficult or easier.
Well, that could only mean one thing. More difficult if he gives evidence and easier if he does not. It does not make sense to read it some other way. So it is easier to come to a conclusion about the evidence, assessing the evidence of the prosecution.
So to take our case, what happens if the accused's counsel did make inroads with respect to the complainant's credibility? Can you put those inroads to one side? Do you set them aside? Then it goes on:
The accused has remained in the dock as is his right -
Then again:
may assist you when you come to evaluating the other evidence in the case.
Again, it is a repeat. Then his Honour says to the jury that they can "come back and ask" him what he means if they do not understand completely. Then the next paragraph, in our submission, downgrades really - - -
GAUDRON J: It seems to me if you can concede that it is proper to say it was not on oath, was not cross-examined, what follows at page 299 must be legitimate, must it not?
MR GAME: I said in particular circumstances, but I am inclined to withdraw the concession completely, your Honour. I suppose it would be recorded as having reluctantly withdrawn the concession. Now, in that paragraph it says:
Even if the evidence that you are concerned with was evidence that was dealt with in his interview with the police -
Now, the problem we have with that is that it actually downgrades the explanation that he has given out of court. That is the problem. It pushes it down. It is not so much the other. It is the diminishing of the weight to be given and then he goes on to say:
the value or weight that you give to that particular piece of evidence, may have been affected one way or another if you had observed the accused himself giving evidence. If you had seen his demeanour in the witness box -
Well, what is that supposed to mean, that he may have been an unimpressive witness. I should say, your Honour the Chief Justice, this seems to be well and truly away from anything that is in Weissensteiner at this point and I do not know why - - -
GLEESON CJ: What, it is back to Bataillard, is it not? That is the sort of comment that Justice Isaacs made.
MR GAME: It could be, yes. It could be.
GLEESON CJ: He said people who are not on their oath might be very tempted to overstep the bounds of truth.
KIRBY J: But the reality is that if accused are to face comments of this kind, which are so highly critical of their failure to get into the witness box, it does chip away at their right not to and to put the Crown to the proof and the accusatorial system.
MR GAME: Yes. That is the whole point of our argument and I am sorry, again, to your Honour Justice McHugh, that our submissions may seem barren, but in a sense it does involve a pragmatic decision.
McHUGH J: But why? I mean, one must accept that the onus is on the Crown to prove its case beyond reasonable doubt. One must assume, also, that the accused has a right not to incriminate him or herself and that, as part of that rule, it is a rule that the accused need not give evidence, but does anything in those principles prevent the ordinary processes of reasoning? They will, if it is necessary to preserve the integrity of those subrules.
Take a case like Moon's Case where the accused says - makes no express admission but, nevertheless, the fact is you can use what he says in his silence in the face of things that were put to him as indicating a consciousness of guilt. Take the case where the accused flees.
MR GAME: That is the selective, that is the use of - - -
McHUGH J: Well, take conduct: the accused, by his conduct, flees from the scene of an event.
MR GAME: Yes, but your Honour, we are in a very different realm of conduct - - -
McHUGH J: I know we are, but there is no breach of the principle of self-incrimination in tendering evidence of those matters. Why not? And how does it impact, generally? These are the matters upon which I want to explore and I will be exploring.
MR GAME: Well, to the extent that a trial judge may comment in the way in which this comment is given, one puts an accused person in the position whereby the inevitable consequence of not giving evidence, for whatever reason, is that (a) the prosecution case is going to be bolstered, even if it is an entirely direct evidence case; but (b) for practical purposes, if the accused wishes to avoid that consequence, the accused must go into the witness box.
McHUGH J: Well, he may or may not. At the moment it seems to me to come to this: if the jury can use a particular reasoning process, then that judge can comment and tell them that they can. If the jury cannot use that reasoning process, then I would have thought the judge ought to be required to tell them that they cannot, because that is more dangerous to the accused than just letting them go out and reason. But, can the jury use these processes at all?
GLEESON CJ: Or a judge sitting without a jury who, according to our decision in Fleming, has to give reasons explaining the judge's reasoning process.
MR GAME: Well, if the directions are to be taken seriously, then the jury should follow the - it is not an invitation to - - -
McHUGH J: But silence leaves the matter at large. The jury goes out there, uninstructed on these matters. It does not seem to me good enough that there is no comment, if you are right, it seems to me that you would really have to go further and tell the jury that they cannot use it, just as in Palmer's Case, I think the majority said - I am not sure what they said in Palmer; they certainly said the judge could not comment, but I cannot recollect whether they said that the jury could do it.
MR GAME: Yes, but our whole point is that silence at trial is far more problematic, except if one accepts that silence can be probative in certain circumstances, even if one accepts that. But silence is far more problematic, silence at trial, that unless you can draw some conclusion from silence, one cannot take the first step in the process, regardless of those rules that protect the accused against drawing adverse inferences. When those rules impact, the question is really how seriously - and I do not mean the majority of them - one takes those rights, or how strongly one wishes to assert them, in requiring the whole burden of the case to be resting on the prosecution in the accusatorial process.
GLEESON CJ: That is part of the problem. You use the expression "the accusatorial process", but there was a big inroad made into the accusatorial process more than 100 years ago. The moment an accused was given the right to give evidence and jurors became aware of that, the accusatorial context altered significantly.
McHUGH J: Can I add to that that it seems to me at the moment that the principles that allow you to give evidence about the out-of-court admissions of the accused or statements or comments are applicable to what happens in the court. There seems to be an assumption that you cannot do it, but I want to know why not? Why? The process of reasoning that you can use about the statements made out of court you cannot use in court. Why is that? I am talking about silence.
MR GAME: One is concerned with the process but the other is concerned with the logic behind this exercise. To take the case of - I think it is Bruce, the recent possession case - unexplained possession of stolen goods, logically speaking, bears a very different probity than the failure of a person to get into the witness box in a trial.
McHUGH J: Yes, but what about statements made in the presence of the accused which he or she does not answer. He can give evidence about that and draw a - - -
MR GAME: That is admissions by silence in the Christie - - -
McHUGH J: I appreciate that, but I just want to know where this rule comes from. I suspect there is an assumption here. There has been a big leap made that may or may not be justified. That is in relation to silence from the witness box.
MR GAME: I will not take the Court to cases, but it has been stated in different contexts, for example Petty, in terms of the right to silence in a pre-trial context, and it has been stated as a principle that has strong weight and that it outweighs the logic of accepting the credibility or doubting the credibility of a recent explanation that lacks probity, bearing in mind the failure to give that explanation at an earlier stage. There is an example of a logical process that the Court has said should not be followed because it cuts across a principle which protects the right of silence. But the same principle is enunciated in the joint judgment in RPS quite recently. It is stated in terms by Justice Sopinka in Noble's Case. It is stated in Griffin's Case in the United States. Just going back to Justice Sopinka's judgment, I should mention that the statutory provisions and the constitutional provisions really did not have any significance in that case. The case was not based on either the statutory or the constitutional context.
McHUGH J: But it provides the setting. Section 4(6) of the Canadian Evidence Act prohibited comment, but it was the setting. That is one of the things here in Australia. For a century you had these prohibitions about making comments, and I just wonder whether or not they may not have caused people to make assumptions that are not justified, once you withdraw those statutory prohibitions about comment and when you replace it with a positive authorisation to comment.
HAYNE J: It may invite attention to the resolution of the apparent logical conflict between the two elements in the impugned direction in this case. One stream of that direction says, in effect, it is wrong to assume guilt from silence. There may be many reasons not to give evidence. We decide the fact that that was elided here. Silence does not equal admission. That is one stream.
MR GAME: Yes.
HAYNE J: Against that you have another stream which says, but silence may affect the value or weight to be given to evidence given by other people. Now, at the moment at least, those seem to me to be logically inconsistent and intention. The two, at least at the moment, seem to me not to be capable of resolution.
MR GAME: We accept that they are incapable of reconciliation.
HAYNE J: So that if the latter element that I have identified represents the true position, the former, at the moment at least, seems to me inevitably to go with it. Now, perhaps the comment is directed not so much to you as to your opponent, Mr Game, but it seems to me that there is irreconcilable tension between those two elements.
MR GAME: Yes, that is why I said they would be ineffectual, some time ago, that when you talk about more readily accepting the evidence of prosecution witnesses you are really moving into: would not have, why, because it would not have assisted, why, because he is guilty of the crime. I mean, the line of reasoning for a juror presented with those directions inexorably moves towards the proposition that he did not give evidence because he is guilty of the offence.
KIRBY J: Yes. I think Justice Hayne has put his finger on it. The first part of the charge, the directions, are within the permissible comment, and, indeed, there is at the top of 298 a very brief attempt to explain the accusatorial system. The whole idea of this is that the Crown, adducing evidence, to show that the presumption of evidence should, by your verdict of guilty, be set aside. So all of that is comment and that is permissible comment under the section. But then when he moves into making statements about not having given evidence, well the only inference that one could draw from that is that the accused is guilty and that seems to be forbidden by the second part of subsection (2).
MR GAME: Yes, and that is why we would see in the descending order of possible directions, a direction that speaks about more readily drawing inferences, although we do not favour it, but we see that as being in a different category again, and we put to the Court that the reasoning in the joint judgment in RPS is to that effect.
GLEESON CJ: Mr Game, you said a little earlier that "this expression must not suggest", et cetera, comes from the Law Reform Commission.
MR GAME: Yes.
GLEESON CJ: Did the Law Reform Commission give an example of a comment that could be made under section 20(2)?
MR GAME: Can I just ask Mr Odgers?
GLEESON CJ: Yes, Mr Odgers can have a look at it and you could come back to it later.
MR GAME: Yes.
KIRBY J: If there is any doubt about this, Mr Game, is not the correct approach of the court to say, the accusatorial system, the right to silence, the entitlement to sit there and say, "You prove it", is so fundamental to our legal system that if the Parliaments of the country, Federal and State, are to take it away, they have got to do it very clearly and if they do not, well, too bad? They could try again, if that is their object, but this does not do so. I mean, that is not an unusual approach to fundamental common law rights being removed.
MR GAME: Yes, we would accept that and endorse it, your Honour. This may not be an answer to your Honour the Chief Justice's question, but at page 330 - and it is a passage that Justice Kirby took the Court to before, but it is an interim report volume 1 at page 330. I do not know whether this answers your Honour the Chief Justice's question, but there is that passage at page 330 where it says:
The detail of the comment is a matter for the trial judge's discretion. It appears, however, that the comment on the failure to give evidence on oath must not contain criticism of the accused for not giving sworn evidence and must not suggest that any inference of guilt can be drawn from the decision.
Then three cases are considered.
GLEESON CJ: Did they give an example of what you can - - -
HAYNE J: Bathurst is the example that seems to be proffered, is it not, of what you can say?
MR GAME: Yes, your Honour.
KIRBY J: Which page is this, Mr Game?
MR GAME: Page 330.
KIRBY J: I do not like that "sit back" although I think I used it myself because it was planted in my mind by Lord Chief Justice Parker because it rather suggests an arrogance, whereas it is not a matter of sitting back, it is a fundamental political proposition, the State must prove against you and that keeps the State in check. That is bottom line politics of the right of silence.
MR GAME: Yes, your Honour.
GAUDRON J: I must say what I - - -
MR GAME: That was where an unsworn statement could be given, your Honour. Yes, I am sorry.
GAUDRON J: Is that appears in Dutton - no, I am sorry, not in Dutton, Lord Salmon, which again goes back to the - - -
GUMMOW J: Walker.
GAUDRON J: Walker, does it?
MR GAME: Footnote 120 is to - - -
GAUDRON J: When he says:
there will be cases in which it will be better for the Judge to say nothing on the topic at all, or at least to deal with the subject with a very light hand.
It seems to me that the trouble we are in in this area is because trial judges do not exercise the - well, take heed of the counsel for restraint.
GLEESON CJ: If you look at the actual comment that seems to have been suggest or approved in that case of Walker it was a question as to why the accused did not take oath. Could it have been that he was conscientiously objecting to taking the oath? If so, he could have affirmed.
Could it be that the accused was reluctant to put his evidence to the test of cross-examination? If so, why?
That is a legitimate comment. It is not administered with a very light touch.
MR GAME: I am not sure whether that quote from Walker has been approved in that passage. I do not think that passage could be advanced as a model direction as to what the Law Reform Commission proposed would be said in these directions. In fact, I think the paragraph at the top of the page, the detail of the comment paragraph suggests a rather different emphasis.
GLEESON CJ: The problem that I have, and I was hoping it might have been addressed in the report, is this, when I read the words, "The comment must not suggest that the defendant failed to give evidence because the defendant was guilty" the question is, as opposed to what? You say he may comment.
KIRBY J: Well, one possible explanation, reading the Law Reform Commission report is, he may comment in order to explain why people do not give evidence. They do not give evidence because they do not have to give evidence, under our system. The State must prove.
MR GAME: Yes.
KIRBY J: And, read with Bathurst and with Simic and the other cases that are mentioned, that seems to be what the Law Reform Commission is looking at.
MR GAME: Yes.
HAYNE J: Reference may have to be made to footnote 124 at page 331.
MR GAME: I am sorry, I have not read that.
HAYNE J: Those reporting are dealing particularly with the unsworn statement, but going to consider permissible and impermissible commentary, it seems.
GLEESON CJ: What is the meaning of the last sentence in footnote 124, Mr Game, that says:
The provision limiting comment accords with the present law in those jurisdictions where judicial comment may be made.
Is the "provision limiting comment" the proposed section 20(2)?
MR GAME: It is not in the same terms, but it is similar.
HAYNE J: As to that we may need to refer to Appendix C, paragraph 20, referred to in footnote 123, which I do not think we have, do we? I, for my part, would be assisted if it could be made available after we rise.
MR GAME: I have the proposal here. Perhaps if I could provide it to the Court.
GLEESON CJ: In connection with footnote 123, the text says:
These limits accord with present law applying in those jurisdictions where judicial comment is allowed.
Are we to take it from that that the Law Reform Commission was proposing that the statute should substantially reflect what is the common law in those jurisdictions where judicial comment is allowed? If so, can you give us an example of one such jurisdiction and the leading case in that jurisdiction?
MR GAME: Well, Bathurst would have been such a case.
KIRBY J: And Simic.
MR GAME: Simic in Victoria would have been such a case. But they were all in the context where what one is directing on is a context where an unsworn statement was made, the person did not - they failed to give evidence, but they made an unsworn statement.
I will provide to the Court overnight or after today, appendix C, paragraph 20. We do seem to have the relevant provision.
GLEESON CJ: How long do you expect to require - - -
MR GAME: I have really finished, pretty much.
GLEESON CJ: All right. You can give us a copy of that after your submissions have been concluded.
MR GAME: Yes. I will give you paragraph 20. A question arose sometime this morning, a question from your Honour the Chief Justice, in relation to the history of the adversarial process and where that term first arose. We have some articles about when the accusatorial system first arose, and we will provide the Court with that material in relation to the history of the accusatorial process. But we would submit that the real question in this case is not so much when adversarial was applied, but when the concept of an accusatorial system - - -
GLEESON CJ: And whether the concept is immutable. It seems to have undergone a pretty substantial change when it became possible for accused people to give evidence and, therefore, it became known to juries that accused people could give evidence. As I understand it, there was substantial comment made upon that at the time.
MR GAME: Yes. We do have some other articles that address that particular question which we could provide the Court either with copies or a list of those particular articles.
GLEESON CJ: Thank you.
MR GAME: Those are our submissions.
GLEESON CJ: Thank you, Mr Game. Yes, Mr Ellis.
MR ELLIS: Your Honours, perhaps the first point that I would like to make is that the Crown's submission is that in order to determine what comment can be made, we need to first determine what use in fact the jury can legitimately make of the exercise by an accused at trial of his right to silence.
HAYNE J: Why? Why does one begin there rather than at the statute?
MR ELLIS: On this basis, your Honour, that until one knows exactly what a jury can do with it, it is difficult to determine what would be an appropriate comment under section 20 or what would be a permissible comment under section 20. Obviously the section itself prohibits comments which would touch on the question of consciousness of guilt but clearly, if it - - -
HAYNE J: It seems to me to deny the inscrutability of the jury's verdict and to proceed from an unstated premise that juries are in a position where their reasoning is to be controlled by judges. That is a premise which, if it is to be the premise of your argument, I, for my part, would wish demonstrated rather than simply assumed, because I do not for the moment assume it.
MR ELLIS: Your Honour, the basis of the argument is that if in fact juries are not directed that they cannot utilise silence in particular ways, there is no way of ensuring that in fact they do not. There is no review. These days I think it is fair to say that juries are aware that accused persons can give evidence. They sit in the court and it becomes obvious to them that the accused did not in fact give evidence. It becomes obvious to them that the accused did not in fact take an oath on the Bible and was not cross-examined. If in fact they then retire and ask themselves the types of questions which one would think would flow from those observations and knowledge, then it may well be that they will misuse the exercise of silence on behalf of the accused. There is a considerable danger that they will in fact say, "Well, he didn't give evidence, he didn't explain it, he didn't contradict it. That's because he's guilty".
HAYNE J: Directions about misuse I can well understand. Directions about use are different to my mind.
MR ELLIS: In relation to the suggested directions which I have prepared as a result of a request, I think, on the last occasion by the Court, it would be my submission that if in fact the Court determined, for instance, in those directions, numbered I think from memory 11, 12 and 13, that if that was not an appropriate use that the jury could make, then the direction would not be as I have framed it, that is, that they can draw such inferences, the direction would be, or should be, that they cannot.
GAUDRON J: Why should there be any direction at all except in special cases?
MR ELLIS: As to what they cannot do, your Honour?
GAUDRON J: No, as to - if we are talking about your 11, 12 and 13, I think, yes, why should there be any - they are all postulated on "if" without filling in the "if". The case may or may not be an "if" case.
MR ELLIS: Your Honour, I appreciate that, and there are a number of factors which would influence whether or not, assuming the content of 11, 12 and 13 is a correct use that the jury can make, if I assume that for the moment, there are a number of discretionary factors which would determine whether or not, in any given case, it would be appropriate to put - - -
GAUDRON J: I do not think they are discretionary factors at all. Either there is a danger of impermissible reasoning - - -
MR ELLIS: Your Honour, not discretionary in terms of what they cannot do, but discretionary in terms of what they can do.
GAUDRON J: In terms of what they can do. Well, again, I am not sure that it is discretionary. I do not understand that a trial judge has a discretion to confuse the jury. I do not understand that a trial judge has a discretion to instruct on issues that simply do not arise. If you instruct on or comment on issues that simply do not arise, I do not see what else you can do but confuse the jury.
MR ELLIS: Perhaps discretion is not the appropriate term, your Honour. Perhaps it simply is that an assessment needs to be made in any particular case as to whether or not there are factors which would mitigate against giving those directions - - -
GAUDRON J: Excuse me, comments, we are talking about, and we are not talking about factors that mitigate against. Surely, in this area, we have to talk about factors which call for or which call for it not to be given.
MR ELLIS: I understand that, your Honour, but the premise of my submission is, firstly, that directions should be given as to what use a jury cannot make.
GAUDRON J: Yes. Well, there is no doubt - there is no dissension about the uses they cannot make except in so far as certain subsequent directions as to the use they can make, prima facie, cut across them.
MR ELLIS: But, your Honour, all that I have said is that for the first 10 or so, those are directions which would normally be directions which were made in each trial, indicating clearly the prohibited processes of reasoning. In relation to 11, 12 and 13, if this Court determines that they are, indeed, prohibited processes of reasoning, then, in turn, the jury ought to be instructed that they cannot follow those processes of reasoning.
GAUDRON J: As your own answer to me a little while ago just acknowledged, much is going to turn on the particular case.
MR ELLIS: I understand that, your Honour, but - - -
GAUDRON J: Yet you have postulated, as it were, comments, which by being phrased in the conditional or the subjunctive, seem to leave it open for them to be given in every particular case, leaving it to the jury to satisfy itself whether or not that is the case on which they are sworn to do justice, or bring in a verdict, is a case of that kind.
MR ELLIS: Your Honour, the directions come about as a request, I think, either from the Chief Justice or Justice Kirby on the last occasion that some attempt could be made to postulate what might be the directions that would flow from Weissensteiner or an extension. Now, I have endeavoured to do that and I appreciate that they, of themselves, perhaps, could be far more eloquently or more correctly worded, but I have simply put them forward as possibilities, as areas which perhaps need to be addressed and for this Court to determine whether they are appropriate or inappropriate processes of reasoning.
If they are inappropriate, my submission is that there ought to be a direction, unless the case itself would not require it on the basis of either there is no factual situation which would cause some of them to arise - for instance, the hypothesis with innocence, if there are no circumstantial evidence cases, that would not arise. If, in fact, the evidence would be confused by some of these directions. They are the factors that I attempted earlier to label as discretionary factors but clearly, in each case, the Court would have to consider the circumstances of the case to determine the appropriateness of any of those, assuming that they are proper directions to give in the first place.
McHUGH J: One of the problems about the subsection is that the wider the judge's power to comment, the smaller the prosecutor's power to comment.
MR ELLIS: Yes.
McHUGH J: The section says:
The judge or any party (other than the prosecutor) may comment on the failure of the defendant to give evidence.
Now, if a statement by the prosecutor that the evidence is uncontradicted constitutes a comment on a failure of the defendant to give evidence, it certainly circumscribes what the prosecution can say.
MR ELLIS: Yes, your Honour. I accept that, your Honour. One of the problems is that the line is a little blurred at the moment in terms of what is a comment. The example your Honour just gave is probably a good example in the sense that a prosecutor can state that as a matter of fact, and it is obvious to the jury as a matter of fact, but by articulating it in his closing address, or her closing address, does it then breach the section?
GLEESON CJ: Presumably it is not a breach of the section to say that the accused did not give evidence and the accused could have given evidence. As I understand the Law Reform Commission's reports, one of the evils that they were seeking to address was the puzzlement that the jury might have as to whether or not the accused was entitled to give evidence. That is the Greciun-King problem. The jury says, "What's going on here?"
MR ELLIS: Yes. Whether the prosecutor needs to make such a comment is perhaps another point, but certainly the court could make such a comment.
KIRBY J: But on its own, this is Justice McHugh's point earlier, if that is all the judge said, "The accused did not give evidence", pause, look, "and the accused could have given evidence.", pause, look - that is devastating. That has to be put in the context of - this is what Justice McHugh was saying earlier, and that is the accused's perfect right under our legal system, because our legal system requires, from first to last, except in certain circumstances, that the Crown must prove the case, and prove it beyond reasonable doubt, and that is a very important principle of our legal system.
MR ELLIS: I accept that, your Honour.
KIRBY J: And if you did not add those things, the two statements would be devastating and would be suggesting guilt, in my opinion.
MR ELLIS: Well, your Honour, the first six or so - I assume for this argument there is an assumption that the first 10 or so directions that I have listed are given in each and every case, and that they should have the effect of highlighting those matters that your Honour has referred to. The point is, where is the line? Now, for instance, if a prosecutor says to the jury, "Well, you heard the complainant, you saw her walk up to the witness box, you saw her take the Bible in her hand, you saw her take an oath to tell the truth, you then heard her give her evidence in-chief, you then heard her cross-examined by Mr So and So for a period of hours." That, of itself, highlights in one sense the absence of anything from an accused. So where is the line over which either a judge or a prosecutor cannot step?
McHUGH J: Well, the problem is that on the unsworn statement you could have the implied comment. In fact, I used to have a rule of thumb in my head that if the judge mentioned witness box and unsworn statement within a sentence or so, there was an implied comment within the meaning of the authorities.
MR ELLIS: Yes, and there are probably many examples of that sort of juxtapositioning of comments, if you like, or observations, or simple references, and part of the difficulty in saying nothing at all about this whole area is that it really just exacerbates those problems. You do not know what leaps of logic the jury follows as they are sitting there listening to the same proceedings.
KIRBY J: As the Chief Justice has pointed out, we have a clue by the question that the jury asked in Greciun-King. If it occurred in that case - and, as Justice McHugh was implying earlier, unless there is some comment by way of indication of the context, then juries or particular jurors will almost certainly think why did the accused not give evidence? It is the natural way of a mind to reason.
MR ELLIS: That is the Crown submission and that is the evil, the Crown would say, which could be met by clear directions as to the use that the jury can make. Section 20 does not deal with the use that a jury can make. Section 20 only deals with the comments that can be made or not made by a judge. I had a look at the history in order to try and find any particular case or any legislation that said anywhere that a jury cannot infer consciousness of guilt from the silence. I have not been able to find anything. In my paragraph 10 commencing at page 7 in my written submissions, I went through - certainly there is section 89 in the Act which deals with not being able to draw adverse inferences from the exercise of silence for conversations with authorities, interviews with police authorities.
There is no similar provision in relation to the jury not being able to draw any adverse inference in relation to silence at trial. Petty v The Queen again dealt with the pre-trial issue, not the actual trial issue. Even RPS only dealt with the issue of the legitimate comment which was available. Weissensteiner did touch on - and I have extracted the paragraphs - the fact that there is a difference between a recognition of the fact that a jury can make a particular use that a judge may be prohibited from commenting upon such a use, and that certainly has been the case as a result of the legislation over the last 100 years - section 407.
That was why I raised in paragraph 10.8 of my submissions the difficulty with the co-accused's comment. It does seem significant that section 20 does provide a co-accused with a right in essence to ask the jury to draw an inference of a consciousness of guilt from a co-accused's silence.
GAUDRON J: Yes. In the footnotes, Mr Ellis, there is a reference there to one decision, I think it is Wickham. It is at footnote 122, page 331 of the ALRC:
It is proposed that there be no change to the law - the co-accused may comment -
footnote 122. Footnote 122 refers to Cross on Evidence and then refers to Wickham. Now, I would be assisted in knowing whether there was special circumstances in Wickham's Case, or that is said to be a general rule, or - - -
MR ELLIS: I do not have a copy of what your Honour is reading, but I think the Wickham Case is a New South Wales decision in relation to - - -
McHUGH J: No, it is English.
HAYNE J: Criminal Appeal.
MR ELLIS: It is English, is it? I am sorry, I do not have the reference your Honour is reading from. Your Honour, I am not aware of the content of that case, but I can certainly endeavour to obtain it and provide it to your Honour.
GAUDRON J: Well, you may need to make submissions on it, too.
MR ELLIS: I understand that, your Honour. The fact that section 20 makes reference to this ability of a co-accused to make such an observation would seem to be inconsistent with a jury not being able to, in fact, draw such an inference and yet - - -
KIRBY J: Surely you cannot allow one exception to wag the whole dog at the right to silence.
MR ELLIS: No, your Honour, I do not and, in fact, I move on to say that, even though you are there dealing with an accused, and perhaps the rights of an accused person at trial in a co-accused situation are different in terms of the Crown's position, you still must - as I said in paragraph 10.10, the use that a jury can make, even of such a situation in terms of a co-accused, must still be strictly confined by the time-honoured principles of presumption of innocence, the onus and burden of proof on the Crown, that silence itself cannot amount to an admission, that the failure to give evidence cannot convert an insufficient case. I have listed them.
So that the conclusion that I reached in relation to that is that whilst one cannot find any particular passage in any particular case or legislation, it must be that a jury cannot use the failure to give evidence at trial as proof itself of the guilt of that accused. It is, though, then somewhat difficult to understand how a co-accused could be permitted under section 20 to make the observation that the section apparently permits him to make.
Nevertheless, if the assumption is that the jury cannot use it, the next question which is asked thereafter is: in fact, what legitimate use can the jury make of the exercise of a right to silence at trial? The only ones which the Crown would suggest would be legitimate are those which I have outlined in paragraphs 11, 12, 13 and 14, which really are just extracted from Weissensteiner and OGD - - -
GAUDRON J: But is there a move from the particular in Weissensteiner to the general in your submissions? For example, it cannot be the case that all innocent hypotheses cease to be rational or reasonable in the absence of evidence to support them. Now, there may well be some hypotheses that would cease to be rational in the absence of evidence, but is there not - - -
MR ELLIS: I accept that, your Honour, and I accept that in each case obviously there will be differences.
GAUDRON J: Then why are they expressed in terms of generality?
MR ELLIS: Mainly because we were dealing with it as a general proposition in terms of what use can a jury make, and ought there to be some direction to the jury as to what use they can make. I mean, it is very difficult to reduce them to all possibilities. So they are stated in the general term but I have also stated that they are - - -
GAUDRON J: They are stated as absolute propositions. It is not simply that they are in general terms; they are stated as general propositions, absolute, unqualified.
MR ELLIS: Your Honour, they are stated in the manner in which they are simply as general propositions in order to try and reduce, as it were, the particular area - - -
GAUDRON J: Yes, but if they are not correct as general propositions?
MR ELLIS: Well, if they are not correct as general propositions, there should be a direction that a jury, in fact, cannot use it in that way.
GAUDRON J: No, the fact that they are not correct as general propositions does not mean that formulated in the negative they are correct as general propositions.
MR ELLIS: No, your Honour, and accepting that in each case they will be formulated differently. It is but a starting point is all I have tried to do, your Honour. I accept that in any given case there will be marked differences between those drafts. I think to be fair, your Honour, that it is very difficult when asked to prepare draft submissions as to what the directions might be in cases - - -
GAUDRON J: I am not looking at your draft submissions at this time; I am looking at your summary of argument.
MR ELLIS: I am sorry, your Honour.
GAUDRON J: 10.11.
MR ELLIS: 10.11?
HAYNE J: Perhaps the second paragraph so numbered, as we have two of them.
MR ELLIS: Yes, I am sorry, there are two. At the top of the page or at the bottom of the page, I am sorry, your Honour. It is at the top. Well, your Honour, one of the tests obviously is that it is not the situation that in every case there will be facts that are peculiarly within - - -
GAUDRON J: But you have stated it where there may be.
MR ELLIS: Yes.
GAUDRON J: Well, we have to get to the concrete, if the facts are such that they are peculiarly within the accused's knowledge, but there has to be some precision about those facts.
MR ELLIS: Yes, I understand that. In any given case they need to be determined, as it were, defined.
HAYNE J: Also, all of this is based ultimately on, as I understand it, the pinpoint of 20(2). It chooses very unusual language - "comment". So far as I can see quickly, and I would be glad for any assistance counsel can offer, "comment" is not a term used elsewhere in this Evidence Act.
MR ELLIS: It is certainly not defined.
HAYNE J: And, "comment must not suggest". Again, notions of suggestion are not, I think, prominent or at least may not even be found elsewhere in the Evidence Act. Now, if that is the pinpoint of foundation, we have a very elaborate structure in which you would have founded on section 20 this elaborate instruction to juries all in the guise, if I put it tendentiously, of "comment".
MR ELLIS: No, your Honour, in fact it is not founded at all on section 20; it is founded on general principles as to what a jury are entitled to do, not what comment can be made. I understand the difficulty with - - -
HAYNE J: We are back to the first comment I made this morning.
MR ELLIS: Yes. But, there is a significant difference, your Honour, that is important. If in fact a jury is entitled to utilise certain processes of reasoning, then there would seem to be no logical reason in today's age when they could not be told what in fact they can do and cannot do.
HAYNE J: That presupposes that you put 12 citizens in the jury room and that they are fools. That is not a premise I will take. You put 12 citizens off the street in a jury room and I think most lawyers would be astonished at the wisdom that thus is collected.
MR ELLIS: I do not cavil with that at all, in fact I am in complete agreement with your Honour. It is just that it does not mean to say that those jurors, intelligent though they are, necessarily know of all of the prohibitions. They necessarily know that they are not entitled to draw inferences of guilt from silence. Those types of things do tend to be the logical thought processes or a process of logic that we apply in every day life. If three people are in a room and one person accuses another of an offence and nothing is said, the third person goes through a thought process normally of, "Well, he or she did not deny it".
GAUDRON J: But the three people in the room are not working in a context where there is a presumption of innocence which continues until it is proved beyond reasonable doubt, that is, all reasonable hypotheses consistent with innocence are excluded.
MR ELLIS: Yes, I understand that, your Honour, but the question is whether or not the jury, perhaps, in each and every case, will also understand that and it is - I think, on the last occasion the Chief Justice said that, "How could a direction be unfavourable which is a direction which is intended to prevent a jury going off on a frolic of their own?"
GLEESON CJ: Mr Ellis, how long do you expect to require to complete your argument? I only ask that because of an indication we may need to give the next case on the list.
MR ELLIS: Yes. Your Honour, perhaps if I did it without interruption I could deliver it in - and I do not say that critically, but in terms of assessing the time - I could probably deliver what I have to say in about half an hour.
GLEESON CJ: You will be about two hours then.
MR ELLIS: Without interruptions - - -
GLEESON CJ: Then we will adjourn until 10.15 tomorrow morning.
AT 4.18 PM THE MATTER WAS ADJOURNED
UNTIL TUESDAY, 21 NOVEMBER 2000
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