Azzopardi v The Queen, Davis v The Queen

[2000] HCATrans 509

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  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 TUESDAY, 21 NOVEMBER 2000, AT 10.17 AM

(Continued from 20/11/00)

Copyright in the High Court of Australia

_________________

GLEESON CJ:   Yes, Mr Ellis.

MR ELLIS:   Thank you, your Honours.  Your Honours, if I could make brief reference to the Law Reform Commission reports.  Bearing in mind the time constraints I will not take your Honours to all of the pages.  There are obviously a number of different references, but the Crown submission is that, certainly so far as the interim report is concerned, it acknowledges the right that an accused has against self-incrimination and then raises issues in terms of whether inferences can be drawn from the exercise of such a right.

The conclusion which is reached after a discussion, which details both sides of the coin in terms of the argument, is that it seemed to the Commission that it was desirable to compromise and to maintain what was described as the present position, which was that silence could be used in relation to other evidence, but could not be used as direct evidence of guilt.

GLEESON CJ:   I am sorry to ask you this again, I am sure somebody has told us this before, but were these reports written against an assumption that the unsworn statement would go or would remain?

MR ELLIS:   The first report, your Honour, was fairly early, so I think that it was – I am not sure if it was in fact against an assumption that it would go.  The second report, or the final report, seemed to be written against that assumption.  There obviously has been discussion for quite a few years in New South Wales about the abolition of the dock statement, but whether or not it went back to, I think, the first report, interim report, was as far back as 1985.

GAUDRON J:   But this was an Australian Law Reform Commission report.

MR ELLIS:   Yes.

GAUDRON J:   So it was not just done in the background of New South Wales?

MR ELLIS:   No, that is so, your Honour.  The final report, Report No 38, in fact adopted the interim report’s position and concluded, as I have said, that whilst silence could not be used as evidence of guilt, it could be used in relation to other evidence.  There was reference ‑ ‑ ‑

GAUDRON J:   It did not say that, Mr Ellis.  It said the trial judge could comment.  It did not say it could be used.  And it could only be used, really, if it, itself, was evidence.

MR ELLIS:   Yes, your Honour.  I am simply trying to put it into two categories, general categories, as it were.  Clearly, the reports went through and made reference, as in fact happened yesterday, to a number of the English cases culminating, I think, in a series of cases starting from Waugh v The King in the Privy Council, leading on to Bathurst’s Case, Wickham’s Case and Davison, and then finally ‑ ‑ ‑

GLEESON CJ:   Are you relying on something in this?  Are you relying on something in that report?

MR ELLIS:   I am not sure what your Honour ‑ ‑ ‑

GLEESON CJ:   That is Report No 38.

MR ELLIS:   No, these references are, in fact, in the Interim Report Volume 2.  They are all the footnotes to the ‑ ‑ ‑

GLEESON CJ:   You just referred us to Report No 38.

MR ELLIS:   Yes, your Honour.

GLEESON CJ:   Are you relying on anything in Report No 38?

MR ELLIS:   I do rely on the conclusion in ‑ ‑ ‑

GLEESON CJ:   Why do you not take us to what you are relying on?

MR ELLIS:   I can do that, your Honours; I was attempting to try to make it a little shorter, but I can do that.  I am really only relying on the conclusion which was reached as a general proposition ‑ ‑ ‑

GLEESON CJ:   Where do we find that?

MR ELLIS:   It is found at paragraph 73, which is page 41, under the heading “Comment on failure of accused to give evidence - recommendation”.  That is a culmination of those earlier passages from paragraph 71.  It is referring back to the conclusion in the interim report ‑ ‑ ‑

GLEESON CJ:   Where do we find that?

MR ELLIS:   ‑ ‑ ‑ which is found at paragraph 553 of volume 1 of the interim report.

GLEESON CJ:   Does it have a page number in the top right-hand corner?

MR ELLIS:   Your Honour, it is page 303.

GLEESON CJ:   We do not have page 303.

MR ELLIS:   I am sorry, your Honour.

GLEESON CJ:   It is not much use using that like a stage prop.  If you want us to take notice of something that is in it, it is rather important to show us exactly what it is you want us to look at and use.

MR ELLIS:   Certainly, your Honour.

GLEESON CJ:   That piece of paper that I have does not have in it the part to which you are referring.

MR ELLIS:   I was not entirely aware of what your Honour had or did not have.  There were a number of references yesterday and I ‑ ‑ ‑

GLEESON CJ:   Why do you not read it onto the transcript then?

MR ELLIS:   I can do that, certainly, your Honour.  I am reading from paragraph 553, page 303, the last sentence of that paragraph:

It seems a desirable compromise to maintain the present position that silence, while it can be used in relation to other evidence, cannot be used as direct evidence of guilt, (eg) ‑ ‑ ‑

GLEESON CJ:   Can be used how in relation to other evidence?  Did they say anything about that?

MR ELLIS:   No, your Honour.  The most that was ‑ ‑ ‑

GLEESON CJ:   They said nothing about it?

MR ELLIS:   The most that was said, your Honour, was that the English authorities determined that it was a discretionary decision.  The judge had to determine whether he or she would make such a comment, that each case had to be determined on its merits and that there obviously were a number of factors which needed to be taken into account, not the least of which was that caution had to be exercised, that the appropriate directions in relation to the right to silence and the burden and onus of proof on the Crown.  When one looks at the reports at the highest that they seem to get in terms of finally making a recommendation as to the type of comment is to simply refer to a number of cases and to leave it in a position that it really is a matter of discretion.

GAUDRON J:   But has not the right to silence been severely curtailed in England?

MR ELLIS:   It has, yes, your Honour.

GAUDRON J:   For example, does not the traditional warning say if there is something you wish to rely on in evidence and you do not say it now, it may ‑ ‑ ‑

MR ELLIS:   Yes, your Honour.  The English authorities ‑ ‑ ‑

GAUDRON J:    ‑ ‑ ‑ be to your disadvantage or something like that.

MR ELLIS:   To that effect, yes, your Honour.

GLEESON CJ:   Now, when did that situation first come into being, before or after the authorities referred to in the Law Reform Commission report?

MR ELLIS:   After the authorities, your Honour.  The authorities that are referred to pre those legislative changes in England.

McHUGH J:   Bathurst was back in 1968.

MR ELLIS:   Bathurst was 1968.  The last one, I think, that I mentioned was Sparrow, which was 1973.

McHUGH J:   But is not the whole thrust of these reports against your submissions?  They seem to give no support at all, as far as I can see, to the notion that the judge can comment in a way that would enable the jury to use the silence of the accused as an evidentiary factor in the Crown case.  There is not a scintilla of support for that theory, is there?  Indeed, the whole thrust of the report seems to be the opposite view, namely, that you will not allow the silence to be used to the detriment of the accused.

MR ELLIS:   Your Honour, it is true that in terms of jury use I do not believe there is any real reference to jury use, it is centred upon comment which can be made and the arguments both for and against that in terms of infringements on the right to silence are addressed and, really, all that has happened in the reports is they have made reference to some of the English cases and have indicated that it is not a matter for the Commission to determine, it is not appropriate for the Commission to determine exactly what comment can be made because it is so difficult to do that because of the myriad of possible factual differences.  It seems that the highest that they have reached is this determination that it is possible for comment to be made, providing the appropriate directions are given in relation to the right to silence, the presumption of innocence, burden and onus of proof and then it is a matter for the discretion of the trial judge and the only real guidance is the example that one can take from some of the English cases that are footnoted in the report. 

I think it is fair to say that when one then looks at the reports, looks then at section 20 itself and then looks to this Court’s decision in both Weissensteiner and RPS, that there certainly is a question of when is it appropriate for a direction to be given and also the question of what, in fact, direction is called for in any particular case.

GLEESON CJ:   Well, let me ask you a question which has been addressed both by Mr Byrne and Mr Game.  If Weissensteiner was tried tomorrow in New South Wales, what, if anything, could or should be said about the absence of any explanation from him of how he came into possession of the valuable, personal property?

MR ELLIS:   Your Honour, I think if Weissensteiner was heard tomorrow the jury could be instructed that they might more readily draw the conclusion that the prosecution seeks that any hypothesis consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused.  I think that is the extent that RPS and that could be gleaned from, I think, paragraph [27] in RPS.

GLEESON CJ:   Counsel seem to agree on that.  Your answer is exactly the same as the answer Mr Byrne gave yesterday.

MR ELLIS:   I think that is so, your Honour.

GLEESON CJ:   So it follows from that, does it, that the presence of section 20 does not preclude anything being said about the accused’s silence?

MR ELLIS:   Yes, I would agree with that conclusion.  The issue, though, is in which case or in what type of case ought it to be given.  Reference was made yesterday by your Honour to Plomp’s Case.  Obviously there are “smoking gun-type” cases, recent possession cases, the hat example in Kops’ Case, flight cases, the Weissensteiner situation itself.  Perhaps also cases involving specific intent where the accused is the only person who perhaps knows what his intent was, or in a joint purpose situation where there was circumstantial evidence in both of those cases, which might suggest a particular specific intent or suggest a particular joint purpose and in each case the accused is peculiarly positioned to be able to explain what was, in fact, his intent or what was the joint purpose. That would appear to be the range or the type of case which RPS would categorise as that rare or special case which would permit the type of Weissensteiner direction that I just indicated to the Court.

So that the test would seem, if that is so in New South Wales, to be a matter for each trial judge to determine whether or not there are facts which, if they exist, are peculiarly within the knowledge of the accused.  Whether or not it is reasonable for a jury to expect denial, explanation or answer, by the accused to the prima facie case that is made out against him.  Obviously there are other factors which would influence the decision to give such a direction.  Questions of whether the accused bears a legal onus, as he does in some cases, drug deemed supply cases and diminished responsibility cases, the impact obviously of whether there are reasons for an accused not giving evidence, multiple count situations as was the case in OGD, they would all be factors which would influence a judge’s discretion in determining whether to give the direction.

GLEESON CJ:   Let me take an actual case without naming it.  A person is accused of murder of a foreign visitor to this country.  The case I am taking is one in which the accused actually gave evidence, but let me test it against silence on the part of the accused.  There is found amongst the personal items of clothing of the accused a very distinctive and unusual item of clothing which is proved to have belonged to the victim.  There it is in the accused bedroom drawer.  If the accused did not go into the witness box, said nothing about that, what, if anything, in your submission, could be said about the accused’s failure to explain the presence amongst his personal possessions of an item of clothing proved to have belonged to the victim?

MR ELLIS:   Your Honour, the Crown would say that that would be a case which was potentially within the parameters of the RPS permitted Weissensteiner-type direction.  Obviously it would then depend on a consideration of the other factors as to whether any direction was given – the factors I have mentioned about multiple counts, other reasons for not giving evidence – but it would seemingly in that type of case perhaps meet that threshold question of whether or not there were facts peculiarly known to an accused which could explain or contradict a damning Crown inference. 

So in cases where you have items of circumstantial evidence which, when looked at as a whole, lead to a very strong inference in favour of the Crown proposition, the question is, “Well, are there any facts known to the accused which are peculiarly known to him, which might explain or contradict the inference the Crown is asking?”  If the answer to that is yes, then the Crown submission is that the threshold has been passed, in terms of the RPS threshold, and it is then a question of the judge moving to look at the other discretionary factors in the case, which might militate for or against the giving of the permitted direction that I have referred to before, the RPS paragraph [27] directions.

McHUGH J:   Well now, let me understand what you mean by referring to paragraph [27] and Weissensteiner.  You will recall that the distinction between the majority and minority judgments in Weissensteiner was that the majority upheld a direction that the jury could take into account the accused’s failure to answer inferences drawn generally from the whole of the Crown case, whereas the minority judges thought that that was a misdirection, because it was only in respect of particular facts calling for an explanation that the accused’s silence could be taken into account.  Now, do you maintain that the direction that was given at page 224 in Weissensteiner can fit with section 20 and RPS.

MR ELLIS:   I am sorry, I missed the first part of that.

McHUGH J:   Section 20 as interpreted in RPS?

MR ELLIS:   Your Honour, I think that RPS certainly restricted the application of Weissensteiner and paragraph [27] seemed to be an attempt, I think, to narrow the field considerably in terms of the type of case that directions of this type could be given and then the quote which is extracted in RPS from Weissensteiner is a quote from ‑ which is found at the top of page 738 of the reports for ‑ or it is in paragraph [27] of RPS, and it is extracted from page 227 and I think that ‑ ‑ ‑

McHUGH J:   But the critical direction, at least for the minority judges in Weissensteiner, is the last two sentences in the judge’s direction set out in 224, the second of those directions:

You remember rather here it seeks to have you infer guilt from such facts as it is able to prove to your satisfaction.  Such an inference may be more safely drawn from the proven facts when the accused elects not to give evidence of relevant facts which can be easily perceived to be in his knowledge.

MR ELLIS:   I am sorry, your Honour, I have not located that passage.

McHUGH J:   It is 224, in the middle of the page, there is a direction.  In the last two sentences “You remember rather here”.  Now, would that direction stand in New South Wales having regard to RPS?

MR ELLIS:   It does, your Honour, in the sense that RPS permits the jury to more readily draw the conclusion which the prosecution seeks.

GAUDRON J:   Is that not a suggestion of guilt?  I mean, one has to go back to the words of section 20 ultimately.  Is that not suggesting guilt?

MR ELLIS:   Your Honour, I think that the way it is constructed is that the Crown has to have evidence which is sufficient to establish all of the elements of the Crown case, but if the Crown fails at that point, the accused is not ever called upon and that is the end of the case.  If the Crown does meet that standard and the accused does not give evidence, it is not that an inference of guilt is being drawn from the failure but rather the fact that there is an absence of an explanation and an absence of a contradiction, in fact, makes it easier to accept the inferences that the Crown asks to be drawn from the circumstantial material.

GAUDRON J:   And the inference the Crown or the prosecution seeks to be drawn in a case such as Weissensteiner is guilt.

MR ELLIS:   Yes.

GAUDRON J:   Indeed, that is the inference in all cases, is it not?

MR ELLIS:   But the inference is not based upon the failure.  The inference is based on the circumstantial evidence that the Crown has called which is pointing towards guilt and ‑ ‑ ‑

GAUDRON J:   Yes, I know, but we are talking in terms of section 20, are we not, about a suggestion of guilt, comment which suggests guilt?  This is the prohibition in the second part.

GLEESON CJ:   It is actually a prohibition against a suggestion as to a reason why the defendant did not give evidence.

McHUGH J:   Yes, it is the “because”.

MR ELLIS:   Well, your Honour, the Crown submission is that it is not a breach of section 20, that it is not suggesting that he failed to give evidence by reason of his guilt.

GLEESON CJ:   That was what prompted my question to you yesterday about the origin of this formulation of a suggestion.  As I understand it, everybody agrees that it had no, as it were, earlier origin than the report of the Law Reform Commission.  But, if you look at it, it is an interesting way of formulating the suggestion.  It is a suggestion about why the defendant did not do something.

MR ELLIS:   Yes.  Not that he did not do it, or not that you can feel more comfortable in accepting the Crown case given that he did not do it.

GLEESON CJ:   It is very much like a Jones v Dunkel suggestion.

MR ELLIS:   Yes, that in fact he did not give evidence because there was not anything he could say in his favour.

GLEESON CJ:   In your submission, if Weissensteiner was tried tomorrow in Queensland, would the direction that the trial judge gave in Weissensteiner be a good direction?

MR ELLIS:   I am not sure if Queensland has changed ‑ ‑ ‑

GLEESON CJ:   Assuming it has not.

MR ELLIS:   Assuming it has not, I think that Weissensteiner is still –directions, they need to be read in light of RPS.  RPS, in a sense, even though it was dealing with section 20, it was also dealing with the broader issues of infringing the right to silence and infringing general presumptions. 

GLEESON CJ:   Do you submit that Weissensteiner was overruled in RPS?

MR ELLIS:   I do not submit that it was overruled.  I think that it may have been qualified, if that is ‑ ‑ ‑

GAUDRON J:   Well, for my part, I would have thought it was not.  There is an absence of prohibition in Queensland.  Weissensteiner was a particular case.  There is a prohibition as to the comment that may be made in section 20 that is operative in New South Wales.  RPS was an entirely different sort of case from Weissensteiner.  It was different in this respect:  that to assume that something was peculiarly in the accused’s knowledge was to assume guilt.  If the person says it did not happen, then there is not much more he or she can say about it.  Now, I would have thought they were all clear points of distinction.

MR ELLIS:   Yes, I accept that ‑ ‑ ‑

GAUDRON J:   Well, you have now given two inconsistent answers.

MR ELLIS:   I am sorry, your Honour?

HAYNE J:   It seems to me that the position for which you contend is not significantly different from that arrived at in the English Court of Appeal in a case of Martinez-Tobon [1994] 2 All ER 90, particularly at 98, where their Lordships, after a considerable discussion of the English authorities, and consideration of the then standard Judicial Studies Board direction, formulate the rules as being:

(1) The judge should give the jury a direction along the lines of the Judicial Studies Board specimen direction based on R v Bathurst.  (2) The essentials of that direction are that the defendant is under no obligation to testify and the jury should not assume he is guilty because he has not given evidence.  (3) Provided those essentials are complied with, the judge may think it appropriate to make a stronger comment where the defence case involves alleged facts which (a) are at variance with prosecution evidence or additional to it and exculpatory, and (b) must, if true, be within the knowledge of the defendant.  (4) The nature and strength of such comment must be a matter for the discretion of the judge -

et cetera.  Now, it seems to me that the position that you adopt is not radically different from that formulation.  If that is right, and I invite you to challenge whether it is right, how do you support the particular directions that were given in these cases, particularly the direction that was given in the case of Davis where the accused’s position was “nothing happened.”

MR ELLIS:   Your Honour, I certainly intended to go to the specifics of Davis, not so much Azzopardi, because I think I addressed those on 20 October.

HAYNE J:   But what about the premise for my question?  Is the position you adopt substantially that which I have read to you?

MR ELLIS:   Bearing in mind that I am listing, on that basis and perhaps wanting to read it a little more carefully myself, but, yes, it did not seem to be dissimilar to the proposition that I have been putting and I accept that it is necessary in both Azzopardi and Davis and any subsequent case to firstly determine whether or not, factually, it is an appropriate case for a direction to be given.

GAUDRON J:   Now, if you accept that, then why do you persist in hypothetical comments?  If the matter is of the kind that were here in issue, why should not such comments be, “But there has been no evidence of that” or “The accused has not given that explanation”?  Of course, in New South Wales we are now talking about a situation where there is no evidence from the accused, I presume, but there may have been evidence through cross‑examination of prosecution witnesses so you then may have to be a distinction, but why would one give hypothetical directions rather than say, “That is a matter one would think that is peculiarly within the knowledge of the accused and he has given no evidence of it”, and leave it at that?  Why would you start this hypothetical consideration, it seems to be, in the direction in this case?

MR ELLIS:   Your Honour, the hypothetical - your Honour is referring to the draft directions – was really only hypothetical in the sense that it was theoretically this is potentially the range of directions which could be given.  It was not applied specifically to any case, but it is acknowledged that it has to be and it may be that not all of those directions would be considered, even in a particular case and that they would not be given in that hypothetical way but rather be oriented to the particular facts of the case.

I accept that, your Honour, and it is indeed appropriate that judges do give directions which are specifically oriented to the individual case rather than theoretical, but it is the limit available in terms of just preparing a document which contains a range of directions which have been obtained from a number of cases and simply putting that forward as an indication that that is, in fact, the range which courts have used from time to time and acknowledging the necessity to apply it to any individual case and to go through those threshold questions that I indicated as to whether it was factually a case which called for a direction at all, and even if it was, whether there were other factors in that particular case which would, in fact, convince a court that it would not be appropriate in that particular case to give the directions.

The question in Davis, the Crown submission in relation to Davis, I suppose firstly I would rely upon my written submissions – I will not take your Honours to it, but from pages 12 to 16 of the written submissions I do deal with some of these aspects.

But the Crown’s submission so far as Davis is concerned is that firstly there was no Jones v Dunkel-type breach which occurred in RPS, and in fact of the five prohibited directions that are mentioned in RPS at paragraph [17], there was no direction in Davis touching on 2, 3, 4 or 5, it was only the first ‑ ‑ ‑

GLEESON CJ:   It was only the Jones v Dunkel direction that was held in RPS to contravene section 20.  The remaining errors were said to be errors for reasons that do not depend upon the particular provisions of section 20.

MR ELLIS:   Yes, that is so, your Honour, and that is why I hesitated before when your Honour asked about Weissensteiner in Queensland, because RPS does not simply deal with section 20.

GLEESON CJ:   If you look at the structure of RPS, it is said in paragraph [21] that:

The directions given by the trial judge in par (3)…..contravened s 20(2)…..because they suggested that the appellant failed to give evidence because he believed –

something.  If you go to paragraph (3), it is on the bottom of the right-hand column at page 452 of the Australian Law Journal Reports, and it is what I referred to earlier as a Jones v Dunkel direction.  All the other faults in the direction given in RPS were said in paragraph [22] of the reasons in RPS to be errors for reasons that do not depend on section 20.

MR ELLIS:   Yes.  The heading, I think, is “Directions contrary to fundamental features of criminal trial”.  That is why, in terms of what could happen in Queensland, those are factors which need to be considered.  But I think RPS nevertheless did in paragraph [27] go on to provide that there would be factual cases which would arise such as Weissensteiner which would permit at the very least those comments which are made in [27], that is that you can “more readily draw the conclusion which the prosecution seeks” and also in terms of the question as to whether an innocent hypothesis is no longer reasonable.

GLEESON CJ:   In the case that we are looking at of Davis, was there a Jones v Dunkel direction?

MR ELLIS:   There was no Jones v Dunkel direction.

GLEESON CJ:   So that applying RPS to Davis, any errors found on the basis of RPS to exist in Davis are not errors by reason of section 20 of the Evidence Act.

MR ELLIS:   Yes, your Honour, that is what flows from RPS.  The one error which is highlighted is what is listed as No 1 in RPS in paragraph [17].  RPS agrees the failure to give evidence:

could be taken into account by the jury in “judging the value of, the weight of’ the prosecution’s evidence –

His Honour’s direction was that the failure may affect the value or weight which you give to the Crown evidence and a little later he said the fact that he has not given evidence may assist you when you come to evaluate other evidence in the case. 

GLEESON CJ:   It is obvious – you only have to read them to see – that the directions in Davis were taken from Weissensteiner.

MR ELLIS:   Yes.

GLEESON CJ:   They do not include the Jones v Dunkel direction said to contravene section 20.

MR ELLIS:   Yes.

GLEESON CJ:   There are, it seems, only two possibilities.  Either the trial judge was wrong in thinking that Weissensteiner was authority that permitted him to give these directions or the authority of Weissensteiner has been qualified by the decision in RPS.

MR ELLIS:   Yes, and then the critical question is whether or not Davis falls within the narrower confines of RPS, in paragraph [27] of RPS.  The Crown’s first submission is that factually it does because of what the Crown would say were damning inference that was available to be drawn from a combination of the factors that the nine‑year‑old girl walked seven kilometres in the middle of the night, she spent the night in a car, she showed signs of distress, she almost immediately complained to her mother, her inner thighs and vagina were seen to be swollen and red, the medical examination was consistent with the allegation.  All of this was in the context of her having regularly stayed at the accused’s house, of an existing friendship between her and his sons, and indeed between her parents and the accused.  So that the Crown says the Crown inference from that is a very strong inference and the Crown says that the accused could have firstly denied it on oath, he could have on oath challenged the truthfulness of the complainant’s version, he could have explained ‑ ‑ ‑

HAYNE J:   When you say there are two separate propositions, what is the content of that second proposition that is different from the first?  He could have denied it on oath, or what was your second proposition?

MR ELLIS:   That he could have challenged the truthfulness of any ‑ ‑ ‑

HAYNE J:   Yes, what does that mean, other than bare denial?

MR ELLIS:   Any other aspect of what she has said, your Honour.

HAYNE J:   What, what?

MR ELLIS:   Well, firstly, your Honour, in terms of the conversation that he said took place in the car that morning when he located her in the car, there was a conversation which she alleged took place.  He agrees with part of it, but I think not the second part.  So that he could have challenged her truthfulness on that aspect.  He may have been able, depending on what his recollection was.  There may have been things that she said occurred in his house that he could have said did not occur.  He was able to explain what exactly did happen in his house.  He was able to say “She came to my house, she watched TV with my sons, she went to sleep.  The next thing that happened is that I woke up and I checked on my kids.  She was not there.  I went looking for her, I found her, I spoke to her and I said X and Y, and she replied X and Y.”

CALLINAN J:   But he said all of that in the police interview.

MR ELLIS:   He did, your Honour, but the right to make under section 20 deals with a right to comment on the failure to give evidence, not a failure to give an explanation.

CALLINAN J:   But it was in the evidence.

MR ELLIS:   It was in evidence, your Honour, but it was not on oath.  The normal direction that would apply would be that the jury would be entitled to take it into account, but that it was not on oath and not subject to cross‑examination and, in that sense, it was not his evidence, there was a failure on his part to give evidence, which is what section 20 is dealing with.

GAUDRON J:   But, now, would that argument not apply in every criminal proceeding in which the accused does not give evidence?  Certainly, would not the ‑ ‑ ‑

MR ELLIS:   No, your Honour, I am suggesting it does not because it is restricted by the requirement that there be appropriate factual cases which provides, for instance, that there is a damning ‑ ‑ ‑

GAUDRON J:   This is appropriate because it is a strong prosecution case?

MR ELLIS:   Because there is a damning inference available from facts.

GAUDRON J:   There is a damning inference that something happened, but you have to prove more than that something happened.

MR ELLIS:   But, your Honour, it is a combination – I appreciate that, your Honour, but it is a combination.  The first factor is that there is, in fact, a damning inference.  If there is no damning inference to be explained, then that is the end of it.

GAUDRON J:   Yes, but you have to go a bit beyond a damning inference.

MR ELLIS:   I am trying to, your Honour.

GAUDRON J:   Yes, you have to go to a damning inference ‑ ‑ ‑

MR ELLIS:   I appreciate that, your Honour, I am trying to work through the process that has to be followed.  The first point is that there has to exist such a damning inference.  If it does not exist, well, that is the end of the story.  If it does exist, then one has to look to see whether there are facts which are peculiarly ‑ ‑ ‑

GAUDRON J:   But, in any event, I do not why we are talking about inferences in this case.  There was direct evidence from the complainant.  The matters to which you refer certainly give that direct evidence a degree of credibility.  That might not be this case in other situations.  But what other inference is there than that, that is relevant to the prosecution case?

MR ELLIS:   But, your Honour, there does not have to be another inference.  That is a significant inference.  Those circumstances lead to a significant inference in terms - not only putting it on the credibility, but in terms of whether or not this occurred.

HAYNE J:   Let us test it.  Let us test it by varying the facts of this case where you had an independent eyewitness who saw the accused with the girl five minutes before the offence is alleged to have occurred who then saw her half an hour after the offence is alleged to have occurred in a state of considerable emotional distress.

MR ELLIS:   Yes.

HAYNE J:   And the accused does not give evidence.  The complainant does.  It would be a pretty strong Crown case.  Could there be in such a case as that a direction about the failure to give evidence?

MR ELLIS:   Your Honour, the Crown says there is a strong inference available from the evidence of circumstances provided by the eyewitness.

HAYNE J:   And thus I, at the moment, see no line whatever which can be drawn between those cases in which comment of the kind asserted can be made and those in which it cannot.

MR ELLIS:   Your Honour, if, in fact, to take the example which your Honour just gave, we take out from that equation the third person and it is the RPS situation where it is simply a complainant giving evidence, as is often the case in child sexual assault cases, almost inevitably, it is behind closed doors and it is one on one.  The Crown agrees that it is necessary for there to be circumstances from which inferences can be drawn, not simply a case of comparing the complainant and the accused.  So that it is in those cases of one on one that it would seem, when looking at RPS, that that type of case would not fulfil the requirements, firstly, of there being inferential material which was damning accompanied by peculiar knowledge residing in the accused.

So the Crown in that type of case has not even got to that threshold factual situation, let alone being able to meet all the rest of the factors which might militate against giving the direction.  So that the distinction in each case, or the test to be applied, would on that basis seem to be that the judge needs to determine whether there is a damning inference arising from circumstantial evidence or from evidence from which inferences can be drawn.  Secondly, whether there is, in that particular case, facts which may be peculiarly known to the accused.

If the answer is “No” to those, then it would seem, following RPS, that it would not be appropriate to give any Weissensteiner type direction.  If the answer is “Yes”, his Honour would still need then to go on to consider the other factors in terms of reasons for not giving evidence, multiple counts, et cetera, those matters I mentioned earlier in the day.  That is where the line is.  The Crown agrees that it is sometimes not an easy line to draw but that in each individual case it would seem appropriate for the trial judge, as he does, for instance in lies cases, to determine whether or not the evidence is such ‑ ‑ ‑

GAUDRON J:   I suppose it is appropriate, on your submission, in every individual case for the prosecution to seek such a comment.

MR ELLIS:   No, your Honour, I do not say that.  I am just trying to provide what is a factual context for a judge to determine just the threshold issue of whether or not the case potentially falls within the range of those which RPS would recognise as potentially a case in which a Weissensteiner direction could give, and that is where the Crown says the line is drawn.  In each individual case, obviously the Crown itself has to determine, before making such an application, whether the case is of that type. 

The position at the moment, I think as I said on the last occasion, is that Crown Prosecutors simply do not ask these days for any sort of Weissensteiner type direction because of the uncertainty of the law.  So it is not a case of simply trying to advocate what might be said to be theoretically a strong position for the Crown.  I am simply advocating what appears to be a reasonable way of delineating between a case in which it is appropriate and a case in which it is inappropriate based on what is the rationale flowing through a consideration of Weissensteiner and then RPS’s consideration of Weissensteiner.

The Crown would say it is not an unreasonable approach to take, especially when the direction that is given must necessarily be balanced with all of the directions which run in my list from 1 to 10 of right to silence, the presumptions, the fact that if the Crown has not established a particular element, then the failure to give evidence cannot provide that element.  At the end of the day, it is a matter of weighing up what is in fact fair to the Crown in the sense of the Crown’s dual considerations, fairness to the accused, fairness to the prosecution in terms of what is, in that particular case, fair.  The Crown says here that the accused could have done those things; that the direction which was given was a very mild direction and it is a direction which, had it not been given, there is no doubt that the jury would have acted in the same way.

There can be no doubt that the jury would have, in fact, said to themselves, “Well, he didn’t give any evidence, we’ll take that into account when we weigh up the Crown case.  In terms of what weight we give to the complainant, we bear in mind that the accused did not give evidence”.  That would inevitably have happened in this case and the direction that was given took it no further than that, provided no additional adverse factor from the accused’s perspective and, indeed, if directions are not given, it may well have been that the jury could have gone even further.  But his Honour gave directions in terms of the right to silence.  They were all there in the one section, and when one reads it, it is not an unreasonable direction given this particular case.

In terms of Azzopardi, I would ask your Honours to refer to the submissions that I made, which are recorded in the transcript, which are found at pages 12 to 15, but it is a similar position.  The principle would be the same in determining whether the direction was appropriate in that case, as it would be appropriate in any other case.

There are a couple of additional factors that, in fact, are of concern and the first would be in cases where the onus is on the accused, that that does change the equation and it does raise issues of the Jones v Dunkel type; whether if an accused bears the burden in a drug case of proving that he had a purpose other than supply.  If he calls no evidence, we take a case of - exercises his right to silence when questioned by the police and then calls no evidence, what direction does the judge give?  That is an area which happens, as I say, with sufficient regularity to call perhaps for some observation on it.  Similarly in relation to the co-accused comment situation ‑ ‑ ‑

GAUDRON J:   Are you suggesting we should right a guidelines judgment about cases that are not before us?

MR ELLIS:   No, I am not, your Honour, but it is relevant to section 20 and to the comment that is available under section 20.

GAUDRON J:   Well, we have particular cases before us which have to be considered in the light of their particular facts.  You seem to be suggesting something equivalent to what has come to be known as the “guideline judgments” in the New South Wales Court of Criminal Appeal that will take account of all the cases.

MR ELLIS:   Well, no, your Honour.  As I understood it, this Bench was convened as a Bench of seven to look at the implications of Weissensteiner, RPS and section 20.  I am simply indicating that one of the factors that touches on section 20 and a comment that can be made or not made is, in fact, obviously the onus of proof.  In this case the onus of proof was on the Crown, but that is not so in all cases.  Similarly, one could say the same thing about the situation with the co-accused and what can be said, but it is all to do with the consideration of what section 20 means.  Both these cases raise the issues with section 20 and a number of ‑ ‑ ‑

GAUDRON J:   They raise an issue with section 20 and they certainly raise a question of its construction.

MR ELLIS:   Yes, that is what I am saying, your Honour, and its construction – because there is not a lot of assistance elsewhere – is determined, in part at least, by consideration of the wording within the section.

The section has interesting subsections dealing with other aspects which may perhaps have some influence on the comment that the section intends can be made.  I simply raise those as areas of, not passing interest or by way of this Court providing some all encompassing guideline for the future, but because they are relevant to section 20 and what is meant by the section.

Your Honour, perhaps in terms of Davis, the last point would be that I do rely on the proviso and my comments at paragraphs 16.1 and 16.2 in my written submissions.  The Crown says that there was no substantial miscarriage of justice in any event.  Your Honours, I think in all other areas my written submissions are there, unless there is some particular area, I would have no further submissions.

GLEESON CJ:   Thank you, Mr Ellis.

CALLINAN J:   Just one matter I wanted to ask you about in relation to the facts of Davis.  Was anything ever suggested as to any reason why the complainant did not tell the truth, or would have had any animus against the applicant, or anything of that kind?

MR ELLIS:   No, your Honour, not in evidence.  The only suggestion of any explanation-type situation of why she might have said it came from the record of interview, that part of which was excised and related to the reference to the other girl, Sharon, and a conversation which was said by the ‑ ‑ ‑

CALLINAN J:   Well, it was not in evidence.

MR ELLIS:   It is not in evidence.

CALLINAN J:   Well, I do not want to hear about it.  So there is no evidence of any reason why ‑ ‑ ‑

MR ELLIS:   I stand corrected, your Honour; that part was not in evidence in terms of it was excised from the record of interview, but in the transcript at AB 220, that contained the edited ERISP, and it is question 133 ‑ ‑ ‑

CALLINAN J:   What am I looking at?  Am I looking at something that got into evidence or not?

MR ELLIS:   Yes, this is in evidence, your Honour.  Question 133:

She might’ve gotten scared because we were talking about the girl Sharon.
Yeah, with Sharon, me and Ron and Julie had been earlier that night.

But the elaboration of that statement was excised, but that went in.

CALLINAN J:   Well, it is very cryptic.  It is meaningless the way it is.

MR ELLIS:   Yes, and that is why there was a subsequent elaboration and the police came back to it in the interview, but that was excised.

CALLINAN J:   Right, so that is the only evidence, and that does not seem to me to suggest any motive or reason for the girl to make a false complaint, as it were.

MR ELLIS:   I think that is so, your Honour, especially given that it was in the context of this happy family environment in the sense of that the families were friends and she was regularly there and, indeed, had stayed two nights.  This was the second night ‑ ‑ ‑

CALLINAN J:   I know all of that.  Do you say the proviso should be applied anyway?

MR ELLIS:   I do, your Honour, yes.

GLEESON CJ:   Thank you, Mr Ellis.  Mr Game, I think you have a right of reply.

MR GAME:   Just in answer to the last matter that your Honour Justice Callinan raised:  the judge was aware that material had been excised from the record of interview that related to material that was regarded as inadmissible by the parties because counsel addressed in a particular way, and the material was drawn to the judge’s attention ‑ ‑ ‑

GLEESON CJ:   Well, I gather this excision was not by order of the judge.

MR GAME:   No, the parties agreed that material would be excised.  Some was thought to be contrary to section 409B of the Evidence Act because ‑ ‑ ‑

GLEESON CJ:   It does not matter to us why they agreed, does it?

MR GAME:   That is right, but it concerned two different types of material:  one concerning allegations concerning the person, Sharon, and one concerning allegations that related to some allegations that the accused had made in respect of the complainant’s father.  That was thought to be contrary to section 409B.  But the relevance of it is that it went to an explanation, both for the injuries and for the walking home.

CALLINAN J:   But I am not interested in anything that is not in evidence.

MR GAME:   No.

CALLINAN J:   All I want to know is, is there any evidence that there may have been any plausible reason at all for this little girl to give the detailed account that she did and to make the complaint that she did against the applicant?  That is all I want to know, and if there is, if you could draw my attention to it please.

MR GAME:   Your Honour, the only material arose out of counsel’s address to the jury.  It is at pages 162 to 163 of the appeal book.  Now, really, any answer relating to Sharon should have gone out of the record of interview and why they thought that they could take out one bit and not the other I do not know, but counsel addressed in a particular way.  The Crown Prosecutor in a way came to his rescue indicating what the nature of the material was and that he had had discussions but the point is this, that the judge knew that material had been excised relating to these other allegations so that the judge, to that extent, and that is the answer to your question, the judge to that extent was aware that that may be a reason.

KIRBY J:   Well, that may be so but we have the duty of considering the question of whether the proviso applies and when you add the lack of evidence relating to some explanation, the seven kilometre walk by a girl of 12, the appearance of vaginal injury or consistent with vaginal injury, it really is a very powerful, extremely powerful indication that something happened.

MR GAME:   Yes.  I will answer that in one moment, your Honour, but this only goes really to the question of whether or not there are reasons why the direction should not have been given.  As to the question of whether or not the proviso should be applied, the answer that I gave yesterday is the one that I maintain, which is this.  The only prospect of an acquittal was to be found in the jury not being satisfied beyond reasonable doubt in respect of the complainant’s evidence.  What these directions did was bolster the credibility – they explicitly bolstered the credibility of the complainant’s evidence because they spoke about giving more value or weight to the evidence of the witnesses and as I have said, there are really only two witnesses that we are talking about here.

CALLINAN J:   With all due respect, that is just not right.  There was only one witness who could give a first‑hand account.

MR GAME:   Yes.

CALLINAN J:   The mother’s account was not a first‑hand account, but the doctor’s evidence, particularly at pages 97 to 99, seems to me to be almost overwhelmingly powerful in minute detail.  It is independent evidence.  I mean, it is all very well talking about the section 20 but we are going to have to decide this case and I am going to have to look very closely at the proviso and at the moment I am interested in the facts.

MR GAME:   Yes, your Honour, can I say this?  When I said there were only two witnesses, what I was talking about was that there were only two witnesses in respect of which the weight that you give their evidence is going to be increased.  Maybe that is incorrect and maybe I should have included the doctor, but in terms of credibility, in terms of bolstering the value or weight to be given to their evidence, because in respect of the doctor it is really a question of what inferences you draw from that.  I mean, there was no challenge to the doctor’s credibility.  It is a question of what conclusions you draw from it.  So, to that extent, what I said was correct, and I would go further than that and say it is really a question of the credibility of the complainant which is critical in this case.

CALLINAN J:   We are really talking about two different things.  I think you are talking about the direction ‑ ‑ ‑

MR GAME:   Yes.

CALLINAN J:   I am talking about the facts of the case that were proved.

MR GAME:   What I am saying is this.  I cannot really get away from the facts of the case but what I am saying is ‑ ‑ ‑

CALLINAN J:   You seem to be trying very hard, it seems to me.

MR GAME:   The directions in this case so explicitly, in our submission, concern the value or weight to be given to the evidence of the complainant and since that is the area in which the question of whether or not there is a reasonable doubt arises, then the proviso should not be applied.  But there is another way of putting this and in a sense it is an answer to what your Honour the Chief Justice has put, which is to say that section 20 is not engaged by this case.

In our submission, that is not correct, because, for the reason that we gave in our submissions, when you speak in terms about more readily – and for reasons that were given, in effect, by Justice Hayne in argument yesterday – accepting the evidence of the prosecution witnesses, and this is the line of distinction, in our submission, between RPS and Weissensteiner - when you talk in terms of more readily accepting the evidence of the prosecution witnesses and when you are talking about direct evidence, and you talk about the failure of the accused to give evidence, then, inevitably, that suggests that the accused did not give evidence because it would not assist him.  That is to suggest that he had failed to give evidence because he was guilty.

GLEESON CJ:   It is the second-last suggestion that is the one to which the section is directed.  The section prohibits a suggestion about the reason why the defendant failed to give evidence.  Now, it is true that a suggestion about the reason why the defendant failed to give evidence might, in turn, lead to a suggestion about guilt or innocence, but the section is directed to the suggestion as to the reason for failing to give evidence.  It looks very much like a statutory provision aimed at a Jones v Dunkel direction.

MR GAME:   Quite, your Honour, but what we submit is this, is that - and I have said it more than once, that when one speaks about more readily accepting the evidence of witnesses in direct evidence, that is so close to a Jones v Dunkel direction that the jury would really treat it as being the same thing, for this reason, that when you say, “This witness has given evidence, the accused has not given evidence.  The fact that he has not given evidence will assist you in determining what weight to give the evidence”, they must reason that that is because he not giving evidence was because it would not help him.

There is no other line of reasoning to that process.  That is to say you are drawn back to the Jones v Dunkel reasoning.  Once you accept that, and we submit that that is inexorable, you are into suggesting that he failed to give evidence because he is guilty, for the reasons that your Honour Justice McHugh gave in RPS.  That is why we say section 20 is engaged by this ‑ ‑ ‑

GLEESON CJ:   There seems to be an element of inversion involved in that process of reasoning.  What the jury is interested in is whether he is guilty or not, not why he failed to give evidence.  Whilst the sting in a Jones v Dunkel direction is what the jury may take from it about the guilt or innocence of the accused, if, as often happens, whatever directions are given or comments are made about silence, they are accompanied by frequent instructions to the jury not to speculate about why the defendant did not give evidence.  The real problem may be, not that there has been a contravention of section 20, but that, to use the language in the heading of the relevant part of the judgment in RPS, there were contraventions of fundamental provisions relating to the conduct of criminal trials not related to section 20.

MR GAME:   That is part of our argument as well, your Honour.  So we put our argument on either basis.  Incidentally, we do not accept the description of our case as only, as it were, breaching one of the five listed things in RPS and, in our submission, if you go through the five, you will see that at least three of them in a relevant sense.

GLEESON CJ:   But four of the five listed things in RPS were said in RPS not to turn on section 20.

MR GAME:   That is correct, your Honour.

GLEESON CJ:   The thing that was said to turn on section 20 was a straight out Jones v Dunkel direction.

MR GAME:   Yes, your Honour, that is true also, but it is an important part of our argument that we succeed without reliance upon section 20, but we also say that section 20 is engaged, so we put it on both bases.

Now, we had some additional – and I will only refer them to you by reference – but we did develop some other reasons as to why the proviso might not be engaged.  We set those submissions out at paragraph 36 of our submissions at page 15.  For instance – and I will not take the Court through all of them – the allegation that sexual intercourse took place in the presence of the two sons on the bed, the allegation of anal intercourse was made for the first time at trial.  In our submission, that is itself a quite significant question and it raises a significant problem when one comes to assessing the credibility of the complainant.

KIRBY J:   Would you just repeat that?  What was made for the first time at trial?

MR GAME:   What happened was that the complainant for the first time made an allegation of anal intercourse at trial, but not only did she make an allegation for the first time of anal intercourse at trial, but that was the allegation that came up first in her oral testimony.  The allegation of vaginal intercourse which she described as her “minny” came later in her testimony.  So it was a significant departure from her evidence.

KIRBY J:   Presumably, the medical evidence did not address that if she had not earlier made it.

MR GAME:   No, your Honour, the medical evidence did not address that.  There was cross‑examination of the police officer to the effect that, in effect, the police officer had sought to elicit from her everything that was relevant in her complaint, so that everything that she – that is to say, that questioning had been taken of her as to what had actually happened.

KIRBY J:   The factual element that I find it very difficult to get out of my mind is of a little girl of 12 walking seven kilometres in the dark, not from her father’s place to your client’s place, but from your client’s place to her father’s place.  Anyway, I think you ‑ ‑ ‑

MR GAME:   It is true, but it comes back ‑ I mean I think I put what I wanted to put which is that it comes back to what one makes about assessment of her credibility in terms of the burden of proof.

Now, just also in respect of Weissensteiner, I went through this yesterday, but we would propose that different directions be given in respect of a Weissensteiner case than were given in Weissensteiner, and we have set that out.  We would also say that on the basis of RPS, although the decision in Weissensteiner might stand, inevitably, directing on a Weissensteiner case today in terms of RPS, one would restrict it to the inferences to be drawn from proven facts.  That is to say, one would constrain it to those particular inferences that were to be identified, rather than relating it in the sense that those last two sentences that your Honour Justice McHugh went through this morning, as it were, took it to the whole of the evidence ‑ ‑ ‑

GLEESON CJ:   Well, if that was the point of departure between the majority and the minority in Weissensteiner ‑ ‑ ‑

MR GAME:   That is correct, your Honour.

GLEESON CJ:   - - - then it follows that Weissensteiner has been overruled.

MR GAME:   Well, to that extent, yes, your Honour, but only to that extent, but that does not mean that the result in Weissensteiner would necessarily have been any different having regard to the nature of the inferences that were to be drawn in that case, because the inferences in that case went very much to the whole of the question; they were very much ultimate inferences, very close to inferences relating to guilt.  So it is not to suggest that the decision in Weissensteiner would necessarily have been different on the facts of the case, but, in our submission, RPS necessarily qualifies Weissensteiner in that respect.

In addition, there are passages in the joint judgment in Weissensteiner that appear to approve propositions about more readily accepting the evidence of witnesses and those remarks are relatively obiter, but, in our submission, to that extent RPS necessarily constrains the operation of Weissensteiner.

GAUDRON J:   Well you say section 20 necessarily qualifies that?

MR GAME:   Yes, your Honour, I do say that, yes exactly, sorry, your Honour, but also I say common law principles, but I do say section 20, yes, your Honour.

GLEESON CJ:   Well you say both, as I understand your submissions, is that right?

MR GAME:   I say both, yes.

GLEESON CJ:   And, as I understand it, you also say that RPS qualifies Weissensteiner in the respect that was critical to the actual decision in Weissensteiner, that is, in the respect that represented the point of departure between the majority and the minority?

MR GAME:   Well, I have to agree with that based on the reasoning of the minority, but what I say is this, is that you could come to a different conclusion, because the inferences to be drawn in that particular case concerning, in effect, the departure of the two deceased, was so closely connected with the actual circumstances from which guilt was to be inferred, that the majority might have come to the same conclusion.  They may have concluded that there was no miscarriage of justice, even on the basis of the breadth of the directions given in that case.  But yes, that is so.  But the other respect in which I say that Weisssensteiner is necessarily qualified, is the one I just gave, whether one bases it on section 20 or common law principles, which is that a jury should not be directed in terms of more readily accepting the evidence (direct) of the prosecution witnesses.

That part of the reasoning of the majority of the joint judgment in Weissensteiner is obiter, because Weissensteiner was not that type of case.  Weissensteiner was very much a type of case in which there was evidence, not only material that must be known by the accused, but material that must be peculiarly known by the accused.  For instance, only he would know why he changed the name of the boat from whatever it was called before to “Mani”, which was his own name.  The possessions of the deceased person still being in the boat, he could only know where they got to, having left their possessions in the boat.  So that is what we say about Weissensteiner.

Now, your Honour, there was a case that arose from a footnote in the Law Reform Commission directions called Wickham, and we have got copies of that decision for your Honours.  This is the case about the comment in respect of the co-accused and if I take the Court to the judgment of Lord Justice Fenton Atkinson, at page 203, what occurred appears in the long paragraph on page 203, and then at the bottom of the page, to allow the comment was quite right.

GLEESON CJ:   Well the comment was that the accused had “taken all the advantage of a coward’s screen by the panel of the dock”.

MR GAME:   Yes, that is right.  Open slather, as it has been put in other contexts.  At the bottom of the page, if there is a point to be made from this case that assists me or the interests I am advancing:

The Criminal Evidence Act 1898 restricts the prosecution from making such comment, but says nothing to restrict counsel for co‑accused -

Then it says:

where the right is given to the co-accused to cross-examine about character any other person charged with the same offence, in that instance the court has no discretion to prevent such cross‑examination where evidence has been given against a co‑accused.  No authority has been discovered by anyone.

Then it goes on to say, at the end of that paragraph:

It seems right to this Court that whereas there is a fetter on the prosecution, a co‑accused ought to be free through his counsel to put his case as he in his discretion thinks fit.

So, as I was putting yesterday, it is really a case of there being competing rights and it is analogous to the entitlement to cross-examine on character.  Then a case of Kennedy and Browne, which is a fairly extreme instance, is cited where one counsel threatened co-counsel with cross-examining his client on his prior convictions, and then that brought about the situation where the client did not give evidence and then he commented on the failure to give evidence, and that was not disapproved.       But then at page 205, we see the passage that says:

In our opinion, there is no discretion in the judge to intervene, although of course he always has the last word and no doubt can make very forceful comment in a case where he thinks it right and draw the jury’s attention to the undoubted right of an accused not to give evidence, and if he thinks that counsel has gone rather too far or has been unfair, he can deal with that satisfactorily in the course of his summing-up.

So what is being propounded there is that the judge can constrain, or give directions, as to how the jury should reason notwithstanding the way in which counsel for the co-accused has put his case.  So that is that case.

Now, we have a list of articles, and I have made inquiries with the library and they either are in the library or can be obtained, and I will provide the Court with that list.  I have one of those articles here.  I was just going to refer the Court to it briefly.

GLEESON CJ:   Thank you.

MR GAME:   I might say the literature about this topic is voluminous, to say the least.

GUMMOW J:   But is it illuminating?

MR GAME:   Voluminous, not necessarily illuminating, voluminous.  Just in the one that I have provided the Court with a copy of – and I apologise; it is a photocopy of a photocopy and is not the best copy – there is a passage at 418 that deals in conclusion with the history of the evolution of the accusatorial system.  There is a passage at 419 in which the emergence of the accusatorial system is examined.  At 423 the author describes the essential mainstay of the accusatorial system as being the right to silence.  There is a further ‑ ‑ ‑

GLEESON CJ:   Mr Game, what is happening about proposals that are mentioned from time to time to require counsel for an accused at the opening of a trial to outline the nature of the defence case?

MR GAME:   Well, that is now required in Victoria, as I understand it.  In New South Wales before Parliament, I think today, in fact, is legislation requiring defence pre-trial disclosure ‑ ‑ ‑

HAYNE J:   I may be mistaken, but I think in Victoria you are required to identify at the outset whether you are going to call the accused or not, which adds a certain ‑ ‑ ‑

MR GAME:   Is that so, your Honour?

GLEESON CJ:   The response of most defence counsel to an invitation to open at the beginning of a trial will be to say, “Thank you very much”.

MR GAME:   Your Honour, for example, in diminished responsibility cases it is unusual for counsel not to open and the reason is because that signals to the jury that they need not trouble themselves about a whole series of issues.

GLEESON CJ:   Yes, but if a frank answer to the question, “What is the defence case?” were to be, “We were rather hoping the principal Crown witness would get run over by a bus”, then a statutory requirement to open the defence case could be a very large encroachment on the right to silence.

MR GAME:   Yes, that is true.  The proposals before the New South Wales Parliament do not, as I recall, require defence counsel to open.

McHUGH J:   Mr Game, I have a recollection that about 15 to 20 years ago a number of judges in New South Wales had adopted the practice of allowing defence counsel to open a case after the prosecution.

MR GAME:   Yes, that happens all the time now but there is now a statutory basis for it and before the statutory basis the Director of Public Prosecutions had a practice of inviting counsel for the accused to open their case.

GLEESON CJ:   But the invitation would not be made in front a jury, would it?

MR GAME:   No, your Honour, but it is not true to say that it is not exercised terribly often.  It is exercised all the time but astute counsel would not make it a lengthy opening.

CALLINAN J:   What New South Wales counsel do in relation to opening cases is uniquely New South Wales.  I do not think any other State in Australia follows the same practice.  If you can find out what is in a case that is opened by counsel in New South Wales after the opening you are a lot cleverer than I ever was.

MR GAME:   I will take the Fifth on that particular question.

HAYNE J:   I thought that was a uniquely Victorian view, Mr Game.  I am much better informed now.

MR GAME:   I thought I read somewhere that in Victoria counsel now has to open to ‑ ‑ ‑

HAYNE J:   I do not think it is a matter of choice and, as I say, my recollection, which may be quite wrong, is that you have to nominate at the start whether you are going to call the client or not.

MR GAME:   Yes, and they have extensive obligations in Victoria now of pre‑trial disclosure.  Now, I will not take the Court through that whole thing but there is another passage at 445 which speaks about the English provisions as undermining the accusatorial system but that article is, as I say, but one of many.  It advances a position that I would have to say in an advocate sense advances the sorts of arguments that we have been advancing.

CALLINAN J:   Justice Davies has just written on this, has he not, in the Australian Law Journal?

MR GAME:   Yes.  It has just been drawn to my attention – apparently a recent article in the Australian Law Journal by Justice Davies.

CALLINAN J:   I do not think it would favour your point of view either, as I recollect.

MR GAME:   I could be confident that it does not, but I do not have that article.  I see that Justice Gaudron has been given a copy of it.

GAUDRON J:   Yes. It appears in 74 ALJ 26.

MR GAME:   Could I also - moving from the articles back to the Law Reform Commission, it was said by the Crown that the recommendations were made against an assumption that the unsworn statement would go.  I thought that I made it plain yesterday that the recommendations – and I went through the material – were made against the assumption that the unsworn statement would not go.  That is quite clear from the Law Reform Commission’s own recommendations in the passages I took the Court to and also at paragraph 90 or page 52 Report No 38 and in the passages we extracted in our written submissions and also the point that I made yesterday that if the unsworn statement were to go then the consequences might be different in terms of the recommendations that have been made.  Now, there were some other passages that have arisen in ‑ ‑ ‑

GLEESON CJ:   Just let me get that straight.  When the legislation was enacted, was it enacted against a background where in some Australian jurisdictions there was a right to make an unsworn statement and in others there was not?

MR GAME:   Well, yes, that is correct, but the truth is that unsworn statements were on their way out everywhere.  They had recently gone in New South Wales.  They were still in place in the ACT.  I am not sure where else, apart from the ACT, at that point, the unsworn statements could still be given.  But what happened was the unsworn statement was abolished in New South Wales in 1994.  This legislation was introduced in 1995.  The recommendations obviously preceded the abolition of the unsworn statement by many years and then in the ACT, some time later, the unsworn statement was abolished.

Now, I have some further portions from the Law Reform Commissions, both interim and final.  If I could hand the Court those and I will just identify what that material is.  This is in addition to the material we have already given in the list of authorities.  Now, in the first portion, paragraph 551 at pages 302 and following through to 305, those are proposals, and you were taken to paragraph 553 by the Crown, although you did not have it at that point.  So 553 is significant and 555 is significant in that material.  Again, I will not read it out to the Court but we see those paragraphs as being significant.  Then one goes to volume 2 of the interim report, which is the proposed legislation, and then in that, that is subsection 17(7), there is the proposal:

Where a defendant has not given evidence, the Judge or a party other than the prosecutor may comment on the failure of the defendant to give evidence, but the comment shall not suggest that the defendant failed to give evidence because the defendant believed that he or she was guilty of the offence concerned.

Now, in answer to the question raised by your Honour Justice Hayne, that is the only reference we can find in the Evidence Act to comment.  It also would seem that this is the genesis of the notion of:

shall not suggest that the defendant failed to give evidence because the defendant believed that he or she –

believed he was guilty.  Then we go, in the same report, at page 104, to a summary of the existing law, and again I will not read through that, but that is what appears there, at pages 104, 105, 109, 110 through to 111.  Then we come to Report No 38.  Now, appendix 8, that is the final report, that is the proposal, and you see section 23 is in the same terms as the proposal in the interim report.  So that is all and that is all that I wanted to put in reply, if the Court pleases.

GLEESON CJ:   Yes, thank you, Mr Game.  Mr Byrne, do you want to add anything?

MR BYRNE:   I will just, firstly, address a matter that your Honour the Chief Justice has raised in discussion this morning and the relationship between section 20 and the decision of this Court in Jones v Dunkel.  The decision of the Court in Jones v Dunkel held that the jury could be directed that where a party had failed to call a witness, who they might reasonably be expected to call and where there was no explanation for the failure to call, then a jury could be told that they could infer that that witness’ evidence would not help the case for the party.  That was, in effect, a neutral inference.  What the directions which are under scrutiny in this case do is, in our submission, worse than give the jury a neutral inference ‑ ‑ ‑

GLEESON CJ:   This is Azzopardi?

MR BYRNE:   I am sorry, your Honour?

GLEESON CJ:   You are talking about Azzopardi?

MR BYRNE:   Yes, certainly, the direction in Azzopardi invites the jury to conclude, from the fact that the accused person has failed to give evidence, that the Crown case is somehow stronger.  It is not a merely neutral inference, as is suggested in the Jones v Dunkel direction.

GLEESON CJ:   But some of the argument in this case has proceeded as though the prohibition in section 20 was a prohibition on suggesting that the defendant was guilty, whereas the prohibition in section 20 is a prohibition on making a suggestion about why the accused failed to do something.

MR BYRNE:   Yes, the specific words of the section say that you “must not suggest that the defendant failed to give evidence because” he was guilty, but it is a very short step from there to suggest to a jury that they can use that matter as something which aids in the proof of his guilt.

GLEESON CJ:   Exactly, which makes you wonder why the legislature did not say “The comment must not suggest that the defendant is guilty”.  That would have been a very plain thing to say.

MR BYRNE:   The suggestion that arises in these directions does, in our submission, contravene the provision because it does suggest that the accused person is guilty.  It suggests that the fact that he or she has not given evidence can be used in aid of proving his guilt.

GLEESON CJ:   But if the intention of the legislature is to prohibit a suggestion of guilt, it seems to have chosen an extraordinarily oblique way of going about that.

MR BYRNE:   Well, the use of the word “suggest” is, with respect – and it is a point Justice Hayne raised yesterday – the use of the word “suggest” establishes a fairly low threshold, in our submission.  It is something considerably less than “implying”, and it is a threshold which is relatively easily, in our submission, breached.  By putting it to a jury that the fact that an accused person has failed to give evidence is something which can be used to aid the proof of his or her guilt is, in our submission, suggesting the fact of guilt.

GAUDRON J:   What it is really suggesting, and it seems to me to put it around the other way, but is a complete flip side, if he were innocent, he would have gone into that box, and that seems to me to be suggesting at the same time that he has not gone into the box because he is guilty.

MR BYRNE:   Yes, but the concept of suggesting would entertain oblique ‑ ‑ ‑

GAUDRON J:   I mean, the immediate suggestion is if he were innocent, he would be in that box, he would be giving evidence.

MR BYRNE:   Yes, if he had anything to tell us that might persuade us of his innocence, we would hear about it.

GLEESON CJ:   What the Law Reform Commission said in paragraph 552 of the material you have just handed up is:

Reasonable inferences should be available from silence.

MR BYRNE:   That was the suggestion in the report of the Commission but it is, in my submission, not reflected in the words used in the legislation.  They have placed the threshold at a very low level, one which is, as I said, easily breached.  This matter is also dealt with, or the general topic raised is dealt with in the judgment of Chief Justice Lamer in the case of Noble that was referred to yesterday where his Honour said that if the prohibition created by the legislation was against the drawing of adverse inferences, then that would be expressly within the legislation.  The fact that it was not did not prevent the drawing of those inferences.

The same can be said of this legislation here, that the interpretation of it should be approached, in our submission, in the same way as Justice Sopinka and the rest of the majority in Noble’s Case approached the Canadian legislation.

GLEESON CJ:   Do you mean by that that we should interpret section 20 as a prohibition on making a suggestion of guilt?

MR BYRNE:   Yes, merely ‑ ‑ ‑

HAYNE J:   But if we do not, what weight, if any, is given to the composite expression “was or believed he was”?  What work is done by the word “was” in that collocation, if that construction is not adopted?

MR BYRNE:   Your Honour, the use of the word “was” simply indicates, in our submission, a prohibition against using the failure to give evidence as a matter which suggested guilt.

Your Honours, just if I can briefly add one comment to the comments that Mr Game has made in relation to the issue that has been raised and expressly raised in the Crown’s submissions about whether the decision of this Court in Weissensteiner still applies, having regard to the decision of the Court in RPS.

Your Honours, the decision of those who comprised those in the joint judgment in RPS at paragraph [27] addressed Weissensteiner, but it did not expressly approve the directions that were given in Weissensteiner; it simply acknowledged, in paragraph [27], that there would be cases and the implication is that those cases would necessarily be rare where the failure of an accused person to give evidence or an explanation would entitle a conclusion contended for by the prosecution more readily to be drawn.  It did not necessarily authorise directions to be given to a jury in that form and, to that extent, it may be said that the other parts of RPS, which suggested that a jury should not be told things which appeared to be endorsed by the Court in Weissensteiner, it can be concluded, in our submission, that the decision in RPS effectively supersedes Weissensteiner and those directions which are contained at page 224 ‑ ‑ ‑

GLEESON CJ:   You mean Weissensteiner is not operative?

MR BYRNE:   Well it no longer represents a form of direction that can be given in those places where section 20 applies.

GLEESON CJ:   Well, if the decision in RPS expressly disapproved of a number of directions in OGD, each one of which was in OGD said to be based on Weissensteiner.

GAUDRON J:   That leaves open the question whether OGD was a Weissensteiner case.

GLEESON CJ:   But if you put together paragraphs [21] and [22] of the joint judgment in RPS, where it is said that all by the Jones v Dunkel direction was wrong for reasons that do not depend on section 20, it must be the case, must it not, that RPS has cut down substantially Weissensteiner?

MR BYRNE:   Yes, we agree with that.  Your Honours, so far as this case is concerned, that is the appeal of Azzopardi, this is not one of those cases where the exception contemplated at the joint judgment at paragraph [27], where a case was so strong that the failure to answer it made it more readily able to draw the conclusion for which the prosecution contends.  This was a case which depended - the Crown case depended on the evidence of three witnesses who had themselves been involved in serious criminal activity who had - all of them been given reduced sentences because of their participation with the authorities, witnesses who, by the very definition

under section 165 of the Evidence Act, were unreliable.  There was, as well, in this case, a lengthy interview with the appellant in which he denied the substance of the Crown case presented against him.  So that this was not what is sometimes perhaps loosely, and often wrongly, referred to as a Weissensteiner case.

Your Honours, there is one other matter that arose in the course of discussion between the Bench and the learned Crown Prosecutor yesterday regarding the form that directions to a jury might properly take and the difficulty occasioned by not explaining to a jury the reasons why certain forms of reasoning were impermissible.  Can I simply draw your Honours’ attention to the decision of Justice Sperling, in the case of OGD, which addresses that particular issue at page 755. I will not read the specific passage, but it is at point D on that page where his Honour deals with the desirability of explaining to a jury the reasons behind the rule regarding directions to them.

Your Honour, those are the only matters that we wish to put in reply.  We would emphasise the material that we wish to put in relation to the specific case has been put in our written submissions and does not need repetition now.  May it please, your Honours.

GLEESON CJ:   Thank you.  We will reserve our decision in this matter.

AT 12.04 PM THE MATTERS WERE ADJOURNED