Azzopardi v the Queen S105/2000

[2000] HCATrans 689

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 MONDAY, 20 NOVEMBER 2000, AT 11.01 AM

Copyright in the High Court of Australia

_________________

MR P. BYRNE, SC:   May it please, your Honours, I appear for the appellant with my learned friends, MR J.W. FLIECE and MS G.A. BASHIR. (instructed by Patricia White & Associates)

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) 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 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 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.

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