Azzopardi v the Queen S105/2000

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

GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 11 OCTOBER 2000, AT 10.17 AM

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

MR R.D. ELLIS: May it please the Court, I appear for the respondent with my learned friend, MR R.A HULME. (instructed by S.E. O’Connor, Solicitor for Public Prosecutions)

GLEESON CJ: Yes, Mr Byrne.

MR BYRNE: Your Honours, this appeal raises the issue of directions to be given in a criminal trial where an accused person does not give evidence.

GLEESON CJ: It raises more than that, does it not, as I thought you rightly pointed out in your submission? The same issue arises in a criminal trial without a jury, when you consider the reasoning process that the judge or magistrate might properly engage in.

MR BYRNE: Yes, your Honours, it does have that additional application. The submissions filed on behalf of the appellant in this matter contend that the directions given in this case did not meet the standards which have been established by this Court in an earlier decision in the case of RPS v The Queen.

GLEESON CJ: Directions of this case appear to have been taken from the majority judgments in Weissensteiner. What, in your submission, is the current status of Weissensteiner as an authority?

MR BYRNE: In our submission, your Honour, Weissensteiner should be limited in its application to cases where the case for the Crown depends primarily on circumstantial evidence and the inferences to be drawn from it.

KIRBY J: That is going to be very complicated for trial judges and for judges who are instructing themselves. I think, if at all possible, the Court should endeavour to have some simple principle that does not turn on the nature of the evidence in the case, because otherwise it is going to be very difficult for judges and very difficult for juries to understand it.

MR BYRNE: Your Honours, the application of the principles of Weissensteiner should, in our submission, be limited to cases which can be said to be relevantly similar to the circumstances that existed in Weissensteiner.

KIRBY J: That does not sound like a very endearing legal principle.

GLEESON CJ: I think we have to bear in mind, Mr Byrne, that trial judges in intermediate courts of appeal happen to be bound by Weissensteiner as well as by RPS. The directions that were given in this case and, as I understand it, in the next case on the list, represent an attempt by trial judges who regarded themselves as bound by Weissensteiner to follow Weissensteiner. They may not have got it right, but there is a question we have to face up to as to what, in the light of RPS, is the current binding rule that emerges from Weissensteiner.

MR BYRNE: Your Honour, the decision of the Court in Weissensteiner, and particularly the judgment of the majority in that case, made it, in our submission, clear that directions should only be given where they were capable in all the circumstances of the case of assisting the jury where the failure of the accused person to give evidence was a matter which was capable of assisting the jury or the tribunal of fact in assessing the evidence in the prosecution case.

Can I take your Honours perhaps directly to two of the passages in the judgment of the majority in Weissensteiner which, in my submission, do restrict the circumstances in which it is permissible or legitimate to give directions regarding the use to be made of the failure of an accused person to give evidence.

GUMMOW J: You mean the joint judgment, do you not?

MR BYRNE: The joint judgment of the majority.

GUMMOW J: RPS was unanimous, was it not?

MR BYRNE: RPS was certainly a decision of the Court where all six Judges agreed in the result but it should be said perhaps for different reasons.

GLEESON CJ: But you are talking about Weissensteiner.

MR BYRNE: I was talking about Weissensteiner.

GLEESON CJ: Yes.

MR BYRNE: It was not a unanimous decision of the Court, it was ‑ ‑ ‑

CALLINAN J: Weissensteiner did not involve any consideration of section 20 of the Evidence Act, did it?

MR BYRNE: No, certainly, your Honour.

GLEESON CJ: There were in fact two judgments of the majority in Weissensteiner. There were two joint judgments in Weissensteiner.

MR BYRNE: There were three joint judgments in Weissensteiner.

GLEESON CJ: But one of them is a minority judgment.

MR BYRNE: Yes, certainly. The judgment to which I propose to take your Honours is the judgment of Chief Justice Mason, Justices Deane and Dawson. There are two passages to which I wish to refer your Honours. This is in 178 CLR. The first passage is at page 228. After dealing with the circumstances in which a case may call for an explanation, approximately the middle of 228, at about point 5, it was said there:

Much depends upon the circumstances of the particular case and a jury should not be invited to take into account the failure of the accused to give evidence unless that failure is clearly capable of assisting them in the evaluation of the evidence before them.

A little further on, on page 229, in that passage which is in the middle of the page, and again at about point 5, the sentence commencing:

It is only when the failure of the accused to give evidence is a circumstance which may bear upon the probative value of the evidence which has been given and which the jury is required to consider, that they may take it into account, and they may take it into account only for the purpose of evaluating that evidence.

GLEESON CJ: Could I draw your attention to the passage at the bottom of page 227 beginning with the words “We have quoted”?

MR BYRNE: Yes.

GLEESON CJ: They say:

it has never really been doubted that when a party to litigation fails to accept an opportunity to place before the court evidence of facts within his or her knowledge which, if they exist at all, would
explain –

and I underline the following two words “or contradict” –

the evidence against that party, the court may more readily accept that evidence.

In the light of the words “or contradict”, why would you limit Weissensteiner to cases based on circumstantial evidence?

MR BYRNE: Your Honour, that appeared, in our submission, to be the approach which the majority of the Court in RPS suggested should be taken where there was direct evidence implicating an accused person ‑ ‑ ‑

GUMMOW J: It is not the majority in RPS either. It is the joint judgment in RPS of four members of the Court.

MR BYRNE: I am sorry, your Honour. In the joint judgment in RPS, the view there taken, in our submission, was that the directions that were contemplated by the Court in Weissensteiner should not be given in cases where the evidence against the accused person was direct evidence and it could not be said that an explanation was reasonably called for.

KIRBY J: Now, all of these are expositions of common law principle. Weissensteiner is a common law case and I think we may have to return to paragraph [106] in RPS where Justice Callinan pointed out that all of this must now be read subject to the Evidence Act in those jurisdictions where that Act applies and, therefore, Weissensteiner is only as good as it is left untouched by section 20 of the Evidence Act.

McHUGH J: I must say I would have thought section 20 strengthened the hands of the trial judges. It expressly says:

The judge…..may comment on a failure of the defendant to give evidence.

KIRBY J: Yes, but it goes on to say it may not be to the point of suggesting guilt.

McHUGH J: That is right.

GLEESON CJ: What do you say about the passage in Weissensteiner on page 224, eight tenths of the way down the page, in the sentence commencing with the word, “However”?

MR BYRNE: Your Honours, that would appear to be an indication that the jury is entitled to take into account silence in the absence of any comment. It does not require necessarily comment from the trial judge in order for the jury to give the absence of evidence its appropriate weight.

GLEESON CJ: But, as Justice Kirby pointed out, we are dealing here with the common law principle and, as was mentioned earlier, a lot of this principle has to be applied in cases where section 20 of the Evidence Act has nothing to do, either because it is in a jurisdiction that section 20 does not operate in or because in New South Wales, for example, these cases have to applied by judges and magistrates who are trying people without a jury. What use do they make in their process of reasoning of the fact that an accused person, for example, has not given evidence? The same principles apply, do they not?

MR BYRNE: The same principles apply, but the use that a judicial officer is entitled to make of the failure of an accused person to give evidence, as, in our submission, the cases say, varies according to the nature of the case.

GLEESON CJ: But the use a judicial officer is entitled to make of the fact that an accused person has not given evidence, is no different from the use that a jury is entitled to make of the fact that an accused person has not given evidence, is it?

MR BYRNE: No, in our submission, no.

GLEESON CJ: So if a judge sets out to explain to a jury what use they may make of the fact that an accused person has not given evidence, he or she will explain to the jury exactly what the judge would be doing or the magistrate would be doing if there was no evidence and no jury.

MR BYRNE: Yes, I accept that position.

GLEESON CJ: And then the question arises, once you have the principle straight, in that regard, what, if any, affect on those principles section 20 of the Evidence Act has, but you have got to get the principle straight first, have you not?

MR BYRNE: Yes. The approach is the same, although the terms of section 20 seem to be particularly directed towards directions given to juries.

GLEESON CJ: I presume it is not suggested by anyone that section 20 has anything to do with a case where there is a trial without a jury?

MR BYRNE: It does not, and I accept what your Honour says, that the principles in the assessment of the evidence are effectively the same.

GLEESON CJ: Yes.

MR BYRNE: Your Honours, the contention that is made in our written submissions is that when the summing up in this case, and specifically that part of the summing up which concerns directions given by the trial judge regarding the use to be made of the failure of the accused to give evidence, when those directions are compared with the decision of this Court in RPS, then those directions are inadequate and erroneous. There are, in our submission, certain additional features of this case which, in fact, lead to the conclusion that the summing up in this case is on that particular point worse than RPS, because there was, in this case, a lengthy and specifically detailed record of interview given by the accused person, which was not, as it were, weighed in the balance by the learned judge when he directed the jury about his failure to give evidence.

McHUGH J: But do you not have to face up to the question whether RPS impliedly overruled Weissensteiner as a matter of ratio? The reason my judgment took the form it did in RPS was because I thought there was only one small part of the summing up which contradicted section 20 and that the rest of it was in accordance with Weissensteiner. Now, the majority said it was wrong as well, that is, those other four paragraphs were wrong. I just do not see how the actual decision in RPS can allow Weissensteiner to stand.

MR BYRNE: That may well be the consequence. So far as our case on this appeal is concerned, our submission is limited ‑ ‑ ‑

McHUGH J: Well, particularly in your case it seems to me to throw the problem right up.

GLEESON CJ: That is what we have to face up to here, because these directions in this case represent an attempt by trial judges bound by the decision in Weissensteiner to follow the authority of that decision.

MR BYRNE: The submission that we make in relation to that is, in essence, the submission that was made at the trial, that this was not a case which called for directions of the kind contemplated by Weissensteiner. There is, and there was prior to RPS, a general impression amongst criminal practitioners that whenever an accused person failed to give evidence, the case then became what was known as a Weissensteiner case.

GLEESON CJ: Yes, and these used to be called, in argument, Weissensteiner directions, as I think we see Justice Wood calling them in the next case. I think there are a couple of matters of history that are important here too, Mr Byrne. This problem came into sharper focus because of legislation taking away from accused people the right to make an unsworn statement from the dock.

MR BYRNE: Certainly.

GLEESON CJ: The result was that, whereas previously in New South Wales, it had been very rare for an accused person to stand mute, it then became much more common. But another aspect of history that has a bearing on the importance of the point is that it also became more common, as a result of legislation I think, for serious crime to be tried without a jury at the election of the accused. There are certain types of crime, of which I think homicide involving possible diminished responsibility and child sexual abuse cases were examples in which accused people sometimes now prefer trial without a jury.

MR BYRNE: Yes.

GLEESON CJ: So the question of the process of reasoning that a trial judge is supposed to go through also became a very live question.

MR BYRNE: Those developments, of course, made it a question which was more frequently confronted, but the general approach, at least speaking of judges in New South Wales, has been, in our submission, to use these directions without perhaps having sufficient regard to the cautionary words that were used in Weissensteiner, namely that there were many cases in which there was no call for directions to be given and that it should only be in those limited circumstances where it was clearly capable of assisting in the evaluation of the prosecution evidence.

KIRBY J: What were those cases, in your submission?

MR BYRNE: The general conclusion appears to be that those cases where the failure of the accused might be said to be, to use the words of the joint judgment, clearly capable of assisting were cases where there was something within the peculiar knowledge of the individual accused person which would reasonably be expected to have been put in evidence.

McHUGH J: That puts it in a different way, does it not, from what their Honours put it in Weissensteiner? They, in effect, said that comment on the failure to explain or contradict is the general rule but there were two exceptions to it. One, there may be no facts peculiarly within the accused’s knowledge; and, two, that even if there are facts peculiarly within the accused’s knowledge, the deficiencies in the prosecution case may be sufficient to account for his or her failure to give evidence. That is the general thrust of Weissensteiner, is it not?

MR BYRNE: Yes.

McHUGH J: But then in RPS the Court seemed to say Weissensteiner was a case about guilt being inferred from circumstances and otherwise you cannot comment. That is what you say, that Weissensteiner has to be regarded just as a circumstantial case.

MR BYRNE: Yes.

McHUGH J: It just seems to me, I have to say, that Weissensteiner was never intended to be just a circumstantial evidence case.

MR BYRNE: The circumstances in which the failure of an accused person to give evidence might, to use another expression that is used in directions in this area, make it easier for inferences to be drawn were the subject of comment in your Honour the Chief Justice’s judgment in the case of OGD 45 NSWLR 744.

GLEESON CJ: Which was a judgment of the court bound by Weissensteiner.

MR BYRNE: Yes. The specific part of your Honour’s judgment though which deals with what might be loosely be described as the second of the three principles that your Honour spoke of in OGD derived from Weissensteiner. Can I take your Honours to that decision.

GUMMOW J: Just before you do that, Mr Byrne, I am just not sure where all this is going. Are we to be invited in some way to re‑examine RPS? If we are, it seems to me it is awkward to do it without a full complement.

MR BYRNE: With respect, your Honour, in this appeal we are not inviting your Honours to re-examine RPS. The primary contention in our appeal is that having regard to what the Court decided in RPS the directions in this case are inadequate. That is the primary contention. I do not come here seeking to overrule or review RPS, we seek to rely on it.

GLEESON CJ: Indeed, the history of this matter, as I recollect it, is that the matter of special leave was stood aside until RPS was decided and it seemed to be assumed on both sides that if RPS went one way then special leave would be granted and it has been granted.

MR BYRNE: Yes. In fact, as the historical circumstances that this appeal was on foot prior to the point which was the ultimate point of determination in RPS being raised because it was not ‑ ‑ ‑

GLEESON CJ: The point in RPS was not raised in the Court of Criminal Appeal.

MR BYRNE: That is right.

GLEESON CJ: You will find a good deal of reference in the reasons for judgment in RPS to the reasoning of the Court of Criminal Appeal on various points but you will find no reference to the reasoning of the Court of Criminal Appeal on this point because there was no argument on the point.

MR BYRNE: No, and in fact it was not one of the grounds of the application for special leave until the Court ‑ ‑ ‑

GLEESON CJ: It was not one of the grounds of appeal in the Court of Criminal Appeal.

MR BYRNE: No, certainly.

KIRBY J: They were bound by Weissensteiner but it is natural that you would seek simply the application of RPS but once you get into this Court we have to keep our eye on whether the Court is speaking with forked tongues, on one fork Weissensteiner and on the other fork RPS and, in particular, in respect of States which do not have the Evidence Act as a point of possible distinction with the inferences drawn from that so that there I, frankly, am concerned about what judges would do with jury trials because they have got the Court speaking with at least an element of disharmony.

GLEESON CJ: I would agree with that and add to it, not only the position of courts in jurisdictions where there is no section 20 of the Evidence Act but the position of trial judges and magistrates in New South Wales trying a case without a jury where section 20 of the Evidence Act is irrelevant but where exactly the same principles have to be applied.

MR BYRNE: Yes.

GLEESON CJ: Can I ask you a question about the facts of the present case, Mr Byrne, because it may touch on whether RPS directly determines the outcome of this case?

MR BYRNE: Yes, your Honour.

GLEESON CJ: I have not had an opportunity, yet, to read the transcript of the evidence. There was no doubt at the trial that Gauci was shot by Papalia.

MR BYRNE: No question.

GLEESON CJ: The Crown case was that the weapon from which the shots were fired belonged to your client.

MR BYRNE: It was certainly a weapon which, on the Crown case, he had provided to ‑ ‑ ‑

GLEESON CJ: Papalia.

MR BYRNE: Yes.

GLEESON CJ: Now, my question is this: as the defence case was conducted at the trial, was there an issue about whether the weapon belonged to your client?

MR BYRNE: There was not an issue as to its ownership. The issue was as to whether he had supplied it to a man by the name of Knibbs who, in turn, supplied it to Papalia.

GLEESON CJ: Now, on the question of explaining circumstances, what was the explanation, if any, in the defence case of how your client’s weapon came to be used by Papalia to shoot Gauci?

MR BYRNE: Your Honour, it was never conclusively established to be the appellant’s weapon. What the evidence was in relation to the weapon was that the man, Papalia, and his girlfriend at the time, a woman by the name of Madigan, had observed the appellant to hand a parcel to a man, Knibbs, who took it in to the house where he lived together with Madigan and Papalia. Later, that parcel was seen to be unwrapped and to contain a gun. Some time after the shooting, only a matter of days after the shooting, that parcel was returned, allegedly to the appellant, but the gun in question was later found in the home of another person, not being the appellant. He denied, I should say, having any association with the gun at all.

McHUGH J: I know, but it was found in the Mrish house and, in addition, there were a number of telephone calls, were there not, between Mrish and the accused? Why did not all those circumstances call for some sort of explanation or contradiction?

MR BYRNE: The telephone calls were – there were a total of 14 telephone calls, 11 of them from the home of the accused, the appellant, to a mobile telephone service which was registered in the name of Mrish. There were also three calls from the Mrish registered telephone service to the appellant’s home. Now, there was no evidence who made those calls, who were the participants in those conversations or what conversation there was, if any, so that it was not something that necessarily would have been in the knowledge of the accused.

Had it been established that he was the person talking, that may have been different, but there was simply evidence that the phone calls were associated with him in an indirect way, namely, that he was the person who paid the bill, but it was not conclusively established that he made those calls.

That was the only relevant piece of circumstantial evidence. The rest of it was, in our submission, entirely direct evidence which ‑ and this is the difference, perhaps, between this case and, for example, Weissensteiner. The Crown case and the specific allegations made against the appellant, including the actual things that he was alleged to have done and the motive for which he acted, were put to him in the course of the record of interview and he answered each and every one of those allegations against him in some specific detail. But to the extent that there were explanations called for by him, they were, in fact, given in the record of interview rather than ‑ ‑ ‑

McHUGH J: Yes, but not on oath.

MR BYRNE: But not on oath. The reason I took your Honours to the Chief Justice’s judgment in OGD was to add further emphasis to this notion that the use that can be made of the failure of an accused person to give evidence is limited, and limited in the way that was contemplated by Weissensteiner’s Case. At page 751 of the ‑ ‑ ‑

GLEESON CJ: Each of the propositions, I might say, stated on pages 750 and 751 is followed by a quotation of or a reference to a passage in Weissensteiner.

MR BYRNE: That is exactly what I was seeking to put to your Honours, that what is said to be the second of the principles established in OGD, if it is taken from the bald statement of the principle as it is contained in the third paragraph on page 751 and repeated in the headnote, it may be misinterpreted to be a situation where in every case the failure of an accused person may make it easier to accept inferences relied upon by the Crown. But the use to be made of that principle is, in our submission, distinctly qualified by the two quotes that immediately follow it, both of them, as your Honour the Chief Justice has said, from Weissensteiner , the first from the joint judgment of Justices Dawson and Deane and the Chief Justice where emphasis was given to the fact that those circumstances where it was reasonable to expect an accused person to give an explanation were limited to those where there was material, as the concluding words said:

if it exists at all, must be within the knowledge of the accused.

Similarly, the quote from the joint judgment of Justice Brennan, as his Honour then was, and Justice Toohey emphasised the need to be sure that the accused person was:

in a position to deny, explain or answer the evidence against him ‑ ‑ ‑

GLEESON CJ: Let me ask you this. Are the propositions quoted from Weissensteiner on page 751 of OGD still good law following RPS?

MR BYRNE: In our submission, they are. The problem with RPS and the problem with this case is that those propositions have been applied to a case which did not call for their application. Those propositions extracted from Weissensteiner summarised in OGD are good law, with respect, but to be limited to cases where their application can usefully and properly be made.

GLEESON CJ: I understood your original submission to be such cases are limited to cases where the Crown case depends primarily on circumstantial evidence?

MR BYRNE: Yes.

GLEESON CJ: How do you tell whether a Crown case depends primarily on circumstantial evidence if the Crown relies partly on direct evidence and partly on circumstantial evidence, and some members of the jury might be impressed by the direct evidence, and some members of the jury might be impressed by the circumstantial evidence?

MR BYRNE: Well, if the case is one where the charge against the accused person can be established solely by reference to the circumstantial evidence, then that is a case where the principles in Weissensteiner apply, but that is a relatively unusual case.

GLEESON CJ: Let me give an example: Suppose the evidence that the Crown relies on against an accused is, as in the present case, direct testimonial evidence of an accomplice about whom a warning will be given and circumstantial evidence of some kind, is that a case in which the Crown case depends primarily on circumstantial evidence?

MR BYRNE: No, your Honour.

GLEESON CJ: Why not? It may be that if all you had to go on was the evidence of the accomplice. The accomplice might be such an individual that you could never hope to succeed.

MR BYRNE: Yes, but if that were the case, then the Crown would need to have circumstantial evidence independent of the accomplice’s evidence which by itself was sufficient to establish the elements of the charge.

GLEESON CJ: What I am offering for your comment is a suggestion that your primary proposition does not enable one to tell whether a Crown case depends primarily on circumstantial evidence or not. How do you determine that?

MR BYRNE: Your Honour, if the circumstantial evidence, taken in isolation and divorced from the direct evidence in the case, is by itself sufficient to establish the elements of the offence charged, then it can be said to be a case which relies for its proof on circumstantial evidence.

GLEESON CJ: If you apply Weissensteiner to the circumstantial evidence, but not to the direct evidence, does that mean you direct the jury differently as to the significance they may attach to the silence of the accused when they come to consider the circumstantial evidence, as compared with the significance they may attach to his silence when they come to consider the direct evidence?

MR BYRNE: Yes, that may be necessary to be done.

KIRBY J: That is a very, very, very, very complicated direction for lay people to understand.

MR BYRNE: It is.

KIRBY J: I really think we have to get real about these directions we are telling judges to give to juries.

MR BYRNE: But that may be a situation – I appreciate the practical difficulties that that may cause – which, in itself, calls for a reluctance to give directions of this kind, simply because it unnecessarily complicates the issue.

KIRBY J: Well, that is at the level of the trial judge, and I understand that point and Weissensteiner left that open for advocates to try to persuade the trial judge either in respect of directions he or she gives to a jury or to himself or herself, but, at the level of this Court, I think we have to clarify in our own mind what we are telling the trial judges, that if they decide a direction has to be given, that they actually give.

MR BYRNE: Again, the difficulty is trying to establish a broad general rule which is applicable to every case. Weissensteiner did not seek to do that. Weissensteiner said, “This is the approach that can be taken, but the circumstances in which it should be taken are limited”. That is, with respect, the approach that we say should still be taken.

McHUGH J: But what troubles me is how you can gloss the section. Subsection (2) empowers the judge. It says he or she:

may comment on a failure of the defendant to give evidence.

As long as you do not suggest the accused is guilty.

KIRBY J: But that is a statutory entitlement in the context of 800 years, or at least a couple of hundred years, of the accusatorial trial, that it is for the Crown to prove the case against the accused and, if that very, very fundamental principle is to be undone, it has to be undone by something a bit more clear than section 20, as far as I am concerned, and that is basically what I took RPS to be going back to, but there is a fundamental thing here.

GLEESON CJ: There is another problem, is there not, when you come to consider section 20? As was pointed out by the majority in Weissensteiner, nowadays, for judges to say nothing about the fact that an accused has not given any evidence could land the accused in a very awkward situation because it leaves the jury to go away and reason for themselves about the significance of it. All you need is one juror who has been on a jury before and heard a barrister make a song and dance about the fact that that barrister’s client went into the witness box and did not skulk in the dock, and all those 12 jurors are going to know about the right of an accused person to give evidence.

MR BYRNE: Yes. That is the principle that your Honour’s first rule, as it were, in OGD was designed to avoid. There is no challenge to the decision of the learned trial judge in this case to give a direction which overcame that potential difficulty.

GLEESON CJ: I, myself, speaking purely for myself, have a difficulty with characterising directions as being either favourable or unfavourable to an accused person. A lot of directions have something in them for both sides, and they are meant to have something in them for both sides. Whether or not a comment by a judge about a failure to give evidence is favourable or unfavourable to an accused, might depend on the process of reasoning that the jury would engage in if nobody gave them any instruction at all.

MR BYRNE: I suppose it is fair to say also that certain directions can be, because of their very nature, clearly categorised as being favourable or unfavourable. But the directions in this case, and particularly having regard to the nature of the evidence of the case, were, in our submission, particularly unfavourable because the jury was left with an impression because of the very consistent directions given by the learned judge about the failure to contradict or deny, when in fact there was positive evidence of a specific denial and contradiction of virtually the whole of the Crown case. That was, in the circumstances, a particularly unfavourable direction, and indeed was the subject of repeated applications on behalf of the appellant by counsel for him at this trial for further directions.

GLEESON CJ: Could you state in a summary form what was the substance of the record of interview?

MR BYRNE: The record of interview, essentially, carried the accused, as he was, through the chief allegations made against him by the various prosecution witnesses, all of whom were implicated in the shooting of Mr Gauci at one level or another.

GLEESON CJ: Was this an ERISP interview?

MR BYRNE: It was, and it was before the jury in the traditional form. It was both played on tape and the transcript of the jury was an exhibit in the proceedings. But the essence of the case against the accused was that he had organised the shooting of Mr Gauci by seeking, first of all, to involve Mr Knibbs in the offence, or in the commission of the crime. When he resisted, the next person to be offered the role of shooting Mr Gauci was the man, Papalia. There was allegations that he had provided the gun for the purpose and that he had paid money to Papalia as well, and that the motive behind all of this was the accused’s belief that Mr Gauci and his wife had been engaged in a sexual relationship. All of those matters were canvassed in the interview conducted with the appellant by the police, and in respect of each one, he gave a specific denial.

GLEESON CJ: What did he say about the gun?

MR BYRNE: He just never provided any gun. That allegation was false. It was limited in its scope to he being observed to have taken this package from his car, handed it to the man Knibbs and Mr Knibbs later being seen to undo the package which contained a gun and then it was later returned to Mr Azzopardi. He simply said that those events did not happen. That was the long and short of it.

KIRBY J: Could you remind me: there used to be a provision in the New South Wales Crimes Act I think forbidding comment by the judge.

MR BYRNE: Section 407 used to be, but that was ‑ ‑ ‑

KIRBY J: Is it relevant to read section 20 in a sense as the successor to and modification of that section historically? I realise that it is in the federal Act and has been copied and therefore has a different provenance, but within New South Wales it was designed to, as it were, reverse the old provision of the Crimes Act, was it not?

MR BYRNE: Yes, and also with the important qualification, your Honour, and the one to which the Chief Justice referred, that the old legislation was primarily designed to deal with the accused person who made an unsworn statement and there was prohibition against comment of his or her right to give evidence.

KIRBY J: Yes. That was a very strict rule, as I remember it.

MR BYRNE: It was.

GLEESON CJ: You may recollect that there was a long series of cases in New South Wales where jurors kept asking judges what they should make of the fact that the accused was not cross‑examined.

KIRBY J: Greciun-King was one.

GLEESON CJ: Yes.

MR BYRNE: Greciun-King was the leading decision. It was frankly acknowledged to be an artificial situation that was created by that. This provision was in part designed to overcome the artificiality that juries were presented with, particularly when it was generally acknowledged to be virtually common knowledge that at least one juror would be aware that the accused person did have the right to give evidence if he or she wanted to.

KIRBY J: Why is it beyond the capacity of judges instructing jurors in the law of this country to say, “In our country we have a rule which is different from other countries and it is that from the beginning to the end it is the prosecution which must prove its case against the accused beyond reasonable doubt, and that is an important rule. It’s fundamental to our system and that is why the accused doesn’t have to respond at the time or even respond now. It is fundamental that from the beginning to the end of the trial the prosecution has to prove the case against him. He doesn’t have to prove he is innocent”?

MR BYRNE: We do, with respect, have a rule and I think it fair to say, whilst we have criticised some parts of the learned judge’s summing up in this case, he did direct the jury in other parts.

GLEESON CJ: I think all judges actually say that, do they not?

MR BYRNE: Yes.

KIRBY J: Well, he gave the “beyond reasonable doubt” and he gave the “right to silence” but I just wonder if citizens know. A lot of citizens, and some lawyers, do not know that this is just absolutely fundamental to our legal system, the accusatorial system, and it is a very, very important check on power and on authority. It is sometimes difficult to get it over. Certainly some well‑known commentators in the media do not understand it or, if they understand it, they do not agree with it.

GLEESON CJ: But part of the background to this is that there has been a long history of jurors almost begging judges to tell them what significance attaches to the fact that they have not heard evidence from the accused. It can be very dangerous to an accused person for a judge to maintain a silence on that subject, because the jury uninstructed will often come to a conclusion far more adverse to an accused about that matter than a jury properly instructed would.

MR BYRNE: Yes, I, with respect, accept that. The regime of directions which has been established in OGD and which was the subject of review in this Court in RPS addresses that problem and the three principles which emerge from OGD are not challenged in their correctness. The only challenge that is made is that the application of what is described as the second principle has been wrongly done in this case.

GLEESON CJ: But the problem, incidentally, is precisely identified in the majority judgment in Weissensteiner 178 CLR at the bottom of page 224 and the top of page 225.

MR BYRNE: Yes, but the problem that we would submit is caused by directions of the kind that are given in this case, or have been given in this case, directions of the kind that were held by the Court in RPS to be inappropriate, is that they tend to break down that fundamental rule that your Honour Justice Kirby has been referring to.

GLEESON CJ: Yes. The problem we have got to grapple with is that that problem referred to on the bottom of 224 and 225 is not going to go away and it is not a just response to that problem to say nothing.

MR BYRNE: No, we do not submit, with respect, that nothing should be said. There is no complaint about certain parts of the learned trial judge’s directions on this topic. If I can perhaps illustrate the specific matters. It is in the appeal book at page 295, the various components of the directions on this general area of the accused’s failure to give evidence are confined to a relatively small area but at the top of page 295, in the opening line of that page, the learned judge said this:

members of the jury, because he has decided not to give evidence, a right given by law to every member of the community, you must not think that he decided not to give evidence because he is, or believes himself to be, guilty of the offence with which he stands charged.

Now, a direction of that kind is, in our respectful submission, unobjectionable and achieves the desirable objective which is sought to be overcome, or it seeks to overcome that problem that is referred to in Weissensteiner at the bottom of page 224 and which is repeated in the first of the principles in OGD. There is no complaint about that direction and the immediately following direction which is, in terms, leaving out the next sentence:

there may be many reasons why an accused person may decide not to give evidence…..you must not speculate about that.

Now that is, in effect, a third of the principles in OGD and again something about which we make no objection. It is a legitimate comment which is not the subject of complaint. But, the following directions, commencing with the word “However” and then continuing on for the best part of the next two pages, contain all of the elements or all of those components of directions which the Court criticised in RPS and they tend to diminish the strength of those protections which an accused person is properly given of those aspects of the system of criminal justice to which your Honour Justice Kirby referred.

Those directions effectively say that because he failed to give evidence it makes the Crown case stronger. It is easier to accept the Crown case. Any doubts you may have about the value of the Crown case may be more readily discounted because he failed to give evidence. All of those directions were the subject of criticism by this Court in RPS.

KIRBY J: What I would like your help on is whether, at least for the time being, this case and the succeeding case being New South Wales cases, it is possible for this Court, with intellectual coherency, to say, as to the resolution of possible inconsistencies between RPS and Weissensteiner, that can lay in the future, but for the moment it is enough to say that the directions given are contrary to section 20 of the Evidence Act because they do tend, reading that section in its context, against its history, to suggest guilt on the part of the accused. Because, otherwise, I think it is the duty of this Court to try to sort this out and to resolve the tension between RPS and Weissensteiner, a function which I do not think we can perform today, constituted as we are.

MR BYRNE: Your Honours, our submission in relation to the tension, as your Honour describes it, existing between Weissensteiner and RPS, is that it is, in fact, explained in RPS by limiting Weissensteiner to what we would submit it was originally intended to be limited to. The limited class of cases in which the failure of an accused person to give evidence was, to use the words of Weissensteiner, “clearly capable” of assisting in the evaluation of the prosecution evidence. That is not going to be the average run of the mill direct evidence case.

GLEESON CJ: As I understand one of your submissions, it is that this case can be decided on the basis of the way in which the trial judge fitted the record of interview into this overall direction and that in the record of interview there were a series of contradictions of the Crown case and that was dealt with on the bottom of 296 and 297, simply on the basis that that was not supported by the oath of your client. One of the problems that arises in relation to what is sometimes called in a question begging manner, the right to silence, is what constitutes silence. At the very least, an accused will have said, “Not guilty”. It will often happen that an accused will have given quite an elaborate account of himself in the course of a record of interview that will be in evidence before the jury. On other occasions, an accused person, as in Weissensteiner, will literally stand mute.

MR BYRNE: Your Honour’s suggestion that the case can be, as it were, determined by reference to the way in which the learned judge dealt with the use to be made of the record of interview, our contention in relation to that maybe summarised, perhaps, this way. This case contains almost all of the faults which were identified by the Court in RPS, and the reason for that is because the judge in this case, as the judge in RPS, were taking those directions from a common source. It is not a matter of mystery that there is a manual or a book which judges refer to to devise directions to be given to juries ‑ ‑ ‑

GLEESON CJ: It was changed after Weissensteiner.

MR BYRNE: It was and the directions in RPS and the directions in this case come from that common source.

GLEESON CJ: Well, you can almost trace them, word for word, to Weissensteiner.

MR BYRNE: Yes.

GLEESON CJ: But this direction did not have the fault perceived by Justice McHugh by RPS, did it?

MR BYRNE: It did in part, in our submission. It did not have those specific words as they were contained in RPS, the reference that nothing the accused might say would assist him.

GLEESON CJ: That is the Jones v Dunkel - - -

MR BYRNE: That type of thing, although the judge - in our submissions we have pointed out that the judge gave a direction at pages 259 to 260 of the appeal book in virtually identical terms, the only difference being that he did not expressly relate it to the accused person, that it ‑ ‑ ‑

McHUGH J: That was in the context of the absent witness.

GLEESON CJ: That was against the Crown, was it not?

MR BYRNE: No, it was not, with respect. That is what the Crown has submitted, but if one reads precisely what the learned judge said, it was put in terms which applied it to the Crown and the accused. It is at page 259, just below line 35. The judge opens his discussion of the principle of the absent witness in these terms:

If a witness who could have been called, either by the Crown in the course of proving the guilt of the accused or by the accused in his or her defence against the Crown’s case, and that witness not called…..then the opposing party, be it the Crown or the accused, is entitled to comment –

So it was put, as it were, against the accused and the terms that the judge used on the first three lines of page 260 are the identical terms which were criticised in RPS.

GLEESON CJ: But leaving aside the position of an accused person, it has been long established, including by decisions of this Court, that Jones v Dunkel applies in criminal trials, is it not?

MR BYRNE: It do not ‑ ‑ ‑

GLEESON CJ: I think you will find the authorities for that referred to in Burke’s Case.

MR BYRNE: Buckland’s Case is one which says that it applies ‑ ‑ ‑

KIRBY J: It does apply? It can only apply in a context that is context that is consistent with the right of the accused to remain silent.

MR BYRNE: Certainly.

KIRBY J: You see, in a civil trial you would have expectations that a person will put his best foot forward, but in a criminal trial the whole formula is different and the accused does not have to. The accused can require the State to prove the case and that is why I have real reservations as to whether Jones v Dunkel is apt for a criminal proceeding - accusatorial proceeding.

MR BYRNE: Yes. In our submission, Jones v Dunkel should not apply in a criminal case at all, but the suggestion ‑ ‑ ‑

McHUGH J: Why should it not apply to the Crown?

MR BYRNE: I am sorry, I apologise, it should not apply to the defence in a criminal case.

CALLINAN J: For what it is worth, my view in RPS was that it definitely did not apply to the defence, but that it did apply to the Crown, for what it is worth.

MR BYRNE: Yes, yes and ‑ ‑ ‑

CALLINAN J: I do not think we were referred to any case in this Court in RPS to the contrary.

MR BYRNE: There is a decision of the New South Wales Court of Criminal Appeal ‑ ‑ ‑

CALLINAN J: No, but in this Court.

MR BYRNE: I am sorry, not in this Court, no.

CALLINAN J: There is no criminal case in this Court that holds, is there, that Jones v Dunkel applies to the defence in a criminal case?

MR BYRNE: Not in so many terms, no. It was dealt with ‑ ‑ ‑

CALLINAN J: Could I ask you this also. In Queensland - Weissensteiner was a Queensland case. There was no prohibition upon comment of any kind in Queensland at the time it was decided. Now, at the time that OGD was decided in New South Wales, what was the position? I am not familiar with that.

MR BYRNE: At the time of OGD’s trial section 20 applied.

CALLINAN J: It did apply, yes.

MR BYRNE: Section 20 was introduced into the law of New South Wales on 1 September 1995.

CALLINAN J: So OGD was decided in a new or in a different statutory context from Weissensteiner?

MR BYRNE: Yes, that is my recollection.

McHUGH J: But what is the justification for putting this gloss on the section? It says the judge can comment on the failure to give evidence. What basis, in history or anywhere? History will not help you. History is against it. We start off with the accused giving evidence, being given the right to give evidence in 1891, and it is held by the Privy Council in Kops’ Case that the trial judge could comment on the failure of the accused to give evidence and that they could draw inferences adverse to the accused from his or her failure to give evidence. Then 1900 comes, you get 407 put into the Crimes Act. That was there, in substance anyway, until this new provision is put in, which reinstates the Kops’ decision, I would have thought.

KIRBY J: But it is to comment in a context of a criminal trial whose fundamental character is accusatorial.

CALLINAN J: And it depends also what you get out of the words:

must not suggest that the defendant.....failed to give evidence ‑ ‑ ‑

GUMMOW J: This is all discussed in the joint judgment in RPS paragraphs [18] through to [21]. It seems to me if someone wants to depart from that they have got to seek leave to reopen RPS. The section has been construed, joint judgment of four members of the Court.

MR BYRNE: We are not, with respect, seeking a departure from it. We are seeking its application here, but the words in section 20, which provide that “the comment must not suggest” are a fairly strong qualification.

CALLINAN J: Well, that is the joint judgment in paragraph [20] and it is my own judgment in paragraph [108], so I think ‑ ‑ ‑

KIRBY J: And [106], where his Honour Justice Callinan pointed out that it is difficult to see how Weissensteiner can live with RPS. Maybe we should say that, but I am just concerned that it is saying that in the Court as presently constituted.

MR BYRNE: We have cited that specific passage in our written submissions from Justice Callinan’s judgment.

KIRBY J: There is a lot of force in it.

McHUGH J: I do not see how myself how it can stand, and I said that earlier. I mean, once the joint judgment of Justice Callinan took the view they did in RPS, I cannot see how the general statements in Weissensteiner can stand.

GLEESON CJ: Does the proposition in paragraph [20] of RPS amount to the same thing as the proposition in paragraph [109]?

MR BYRNE: Your Honour, as I read the joint judgment and the judgment of Justice Callinan, the judgment of Justice Callinan was, in effect, in absolute terms that Weissensteiner no longer could be applied to jurisdictions where section [20] ‑ ‑ ‑

GLEESON CJ: No, I am talking about paragraph [109]. I am just inquiring whether you say that paragraph [20] is the same as paragraph [109]. Paragraph [109] limits the comments to “comments for the protection and benefit of an accused”.

MR BYRNE: In practice, your Honour, it may, in fact, be the same.

GLEESON CJ: Is a comment “for the protection and benefit of an accused”, if it might prevent a jury drawing an even more unfavourable inference from an accused’s silence than is legally available to them?

MR BYRNE: Yes, that is a protection to an accused, whether it is a protection to which he or she is entitled is another question. But, to answer your Honour’s question directly, if a direction of that kind were given, then it would have to be favourable.

GLEESON CJ: The background to all of this is the question of what the jury will think if the judge says nothing.

MR BYRNE: Well, certainly there are things that the judge not only is entitled to say but perhaps, in the light of the statements made in Weissensteiner and those two principles in OGD, about which we have no objection, they are things that should be said. But there are other things which constitute, in our submission, adverse comment, which should not be said and which are, in fact, prohibited by section 20.

GLEESON CJ: It would not be quite accurate, would it, to assume that any statement or comment that tells a jury about adverse inferences they may draw from the silence of an accused person is unfavourable to the accused?

MR BYRNE: Not every comment, certainly, no.

GLEESON CJ: It may be a good deal more favourable to the accused than what they would do if left uninstructed on the point.

MR BYRNE: Yes, it certainly may be. The directions in terms that a jury, for example, is not to speculate about reasons why a person has not given evidence, and that there may be ‑ ‑ ‑

KIRBY J: You think that is a great big help. I mean, the jury sitting there and they are told, “You must not speculate”, but the human mind is a very, very errant thing. I suppose we just have to assume that the jury obey the instruction, but it is difficult to tell people, “Do not speculate”, when it would be a natural thing for a person who was unfamiliar with our legal tradition and principle to say, “Well, the person who has the interest to deny it, who has the knowledge that is relevant, who is in peril of loss of liberty, says nothing”. The ordinary person will speculate.

MR BYRNE: That is, with respect, a different position if the direction is given, “He is in a position or he has the knowledge to deny it but has said nothing, but do not speculate”. That would not be, with respect, a help, or certainly not a great big help, to an accused person. But a direction in, as it were, neutral terms, informing the jury that they were not to speculate or draw any adverse inference from the failure of an accused person to give evidence, is certainly, in some circumstances, of assistance to an accused person. It cannot be said to be a direction which is objectionable, in our submission.

KIRBY J: No, on the contrary, I think it is necessary, but I just wonder how far it goes.

GLEESON CJ: Mr Byrne, what, if any, light is thrown on the construction of section 20 by the fact that it contemplates realistically that it is not only comments of judges that you have to be concerned about? The most obvious kind of comment is one from a co‑accused commenting on the fact that an accused has not given evidence. How does section 20 work in a case where a vigorous adverse comment on an accused’s failure to give evidence is made by a co‑accused? What does the judge then do about that?

MR BYRNE: The terms of section 20(5) give the judge a general power to comment on anything said by a co‑accused. Obviously, that is going to have to be limited or fashioned to the circumstances of the case. It depends what the comment is. If it is in terms that the co‑accused has failed to give evidence because he is frightened of cross‑examination about a particular topic, that may be addressed in the evidence. It is impossible to say.

GLEESON CJ: Suppose the co-accused makes a Weissensteiner comment and accurately instructs the jury on the process of reasoning they are entitled to engage in on the basis that one of the accused has remained out of the witness box. What does the judge do then?

MR BYRNE: The judge should then inform the jury that there may be good reasons why that particular accused person has not given evidence and that they are not to speculate about that. They can assess that submission or that proposition that has been put by the co‑accused, but it really depends on the specific things that are said and the state of the evidence. I mean, it may be that there is evidence as to why somebody may have taken that approach or is a feature of the case which entitles counsel for the accused under attack to put forward some explanation.

GLEESON CJ: There is a point of view, and it may be a point of view that appealed to the Australian Law Reform Commission, that this is one of those circumstances in which justice is best served by all the cards being put out on the table and that it is an unhealthy and dangerous situation, dangerous for an accused, if jurors do not have an explanation of what is a legitimate process of reasoning they may engage in in circumstances where an accused has given no evidence.

KIRBY J: I think in RPS a distinction was drawn between judges telling jurors what sort of reasoning they could engage in and judges telling jurors a method of – or warning jurors of a method of reasoning they could not engage in. RPS said judges can do the latter but they should not get involved in doing the former. Am I not correct? I think that was said somewhere in the reasons in the joint judgment.

MR BYRNE: Yes. I cannot recall at this moment but the important qualification there is legitimate processes of reasoning. In the directions given in this case they invite what we would submit are impermissible processes of reasoning, namely that merely because an accused person fails to give evidence then that increases the weight, or as it is sometimes described as it was described here, the value of the prosecution evidence that it enables a jury more readily to discount doubts that they may have about the – for example, the credibility of a prosecution witness.

GLEESON CJ: Is it your submission that if this judge had been sitting without a jury and had produced reasons for judgment in line with these directions, that would have involved legal error?

MR BYRNE: Yes, certainly.

GLEESON CJ: And if that is right, the case does not turn on section 20 at all.

MR BYRNE: No, although we say it does breach section 20, but ‑ ‑ ‑

GLEESON CJ: I understand that but that is a submission quite independent of section 20.

MR BYRNE: Yes, that it is wrong to say evidence is stronger or a doubt is able to be discounted purely by the fact that there is no contradiction given and of course it was entirely wrong to direct the jury in this case in that way because that was not the state of the evidence and that is our fundamental complaint, that by using, as it were, pro forma directions which were not properly fashioned to the circumstances of this case, the learned trial judge in fact misled the jury as to the state of the evidence by saying there was no denial or contradiction.

GLEESON CJ: By “the state of the evidence”, you are referring mainly to the record of interview.

MR BYRNE: Yes, certainly. I think it is fair to say ‑ ‑ ‑

CALLINAN J: For myself, I do not know how we can consider the case and ignore section 20 of the Evidence Act. It is all very well to say that you have an argument that is independent of that but it governs, I think, the comment that can be made and for my own part, at the moment, I do not see how we can avoid seeking to apply it or applying it. You cannot just ignore the statutory provision that governs this area of the law, I would not have thought.

MR BYRNE: No, with respect, we are not seeking to ignore it. Our submission ‑ ‑ ‑

GLEESON CJ: The question is what it means and if a view of the meaning of section 20 is taken that it does not prohibit comment, except comment which makes a certain suggestion, then you want to run an argument that quite apart form section 20 there is legal error of reasoning involved in this process.

MR BYRNE: Yes.

CALLINAN J: But you have to construe section 20 first before you get to that point, is that right? I am not asserting it, I ‑ ‑ ‑

MR BYRNE: Well, in our submission, a proper construction of section 20 must lead to the conclusion that these directions - and those directions which are the subject of complaint in this case - it may be that we have perhaps avoided the hard issues about whether those directions which may be governed by section 20 do in fact contravene section 20 by simply relying on what we say are objectionable directions.

CALLINAN J: But do you not you say on the proper construction of section 20 these directions could not have been given?

MR BYRNE: Yes, we do, but we are perhaps avoiding the hard issue by limiting our area of complaint to the directions which deal with what might, in very broad terms, be regarded as the second principle in OGD, namely, the extent to which the failure to give evidence can be used in the assessment of the strength of the prosecution case.

GLEESON CJ: Mr Byrne, where do we see the objection being taken to these directions?

MR BYRNE: Your Honours, there are two relevant places. Can I just refer your Honours, firstly, to page 253 of the appeal book and introduce that reference by filling in the background. In this case the learned trial judge distributed to counsel, prior to the summing up, written directions which he proposed to give to the jury and invited comment from counsel. Counsel for the appellant’s comments are recorded at page 253 at about line 30 where he said:

It’s my submission…..this direction is misleading and wrong, this is a matter where it’s clear on the case that in the record of interview there is a denial. Your Honour’s direction in relation to that –

this is by reference to the typewritten direction –

in relation to a failure of the Accused to give evidence…..should be coupled with an immediate reference to the record of interview where the Accused has denied any involvement at the first available opportunity.

That preceded the giving of the directions and then once the ‑ ‑ ‑

GLEESON CJ: I think that is an expression of the point I put to you a couple of minutes ago.

MR BYRNE: Yes, certainly. There was then following the directions complaint by counsel for the appellant at his trial which is recorded at page 300 of the appeal book. I am sorry, your Honours, I should have referred your Honours to this as well, and it is particularly relevant in the light of those questions your Honour Justice Callinan asked. At page 254, following that passage I have just referred to, counsel for the appellant couched his objections to the proposed directions in terms that they were in breach of section 20 – or contravened section 20 of the Evidence Act.

GUMMOW J: Where do we see that? Line 24?

MR BYRNE: It is at line 24 initially, then at line 30 and line 35.

GUMMOW J: Yes.

MR BYRNE: Your Honours, those submissions that were put on behalf of the appellant following the directions which are the subject of complaint are at page 300 of the appeal book where the relevant objection is recorded at the top of the page, second line:

your Honour didn’t give appropriate weight to what was said by Mr Azzopardi in the record of interview.

That was taken up by the learned judge at page 302 of the appeal book where his Honour said at line 45:

I do not propose to say anything else to the jury.

Then added these words:

I do intend, however, to remind them that the accused did give a version and that, as part of your responsibility to produce all the evidence, you produced it and they can see it for themselves –

Now, that was never done. He simply decided after that, and it is recorded at page 303 at line 17, that he would not say anything more. So the point was, with respect, well and truly taken, both before the directions were given and after they were given.

KIRBY J: Given that you are confining your complaint, as you have said, to quite a narrow point in objection to the second principle in the earlier decision in the Court of Criminal Appeal, given that the case was a relatively straightforward and not an overly complicated one, given that your client’s objection in police interview was before the jury and given that character evidence was before the jury and the judge gave an impeccable direction in respect of that, which was favourable to your client, why is this not a matter for the application of the proviso? You might want to answer that after you have heard what the Crown has to say, but it is a matter that is concerning me.

MR BYRNE: I accept that invitation. May it please, your Honour. We do have ‑ ‑ ‑

KIRBY J: Take your own course. You might prefer to answer it later.

MR BYRNE: With respect, I take up that opportunity. Your Honours, unless there is any other specific matter, those are the submissions.

GLEESON CJ: Thank you, Mr Byrne. Yes, Mr Ellis.

MR ELLIS: Thank you, your Honours. Your Honours, perhaps I could start with making some references to the Evidence Act. Section 89 of the Evidence Act – your Honours have that section – provides that no unfavourable inference can be drawn from the exercise of the right of silence during “official questioning”, and an unfavourable inference is defined as being:

(a) an inference of consciousness of guilt, or
(b) an inference relevant to a party’s credibility.

I summarise that. The Crown says that it is significant that that provision which would, as it were, operate to mean that no comment could be made which was anything other than favourable is restricted to applying to “official questioning” and does not apply to the exercise of right to silence at the trial, given that section 20 then is the only section which deals with the issue of comment in relation to the exercise of the right to silence at trial.

KIRBY J: But are you suggesting that section 20 abolishes the accusatorial system and the right of silence at the trial?

MR ELLIS: No, I do not suggest that, your Honour, but what I am suggesting is, if you look at the history in the context, I think as his Honour Justice McHugh provided, then looking at section 407, then we look at the legislative changes introduced by the Evidence Act, which effectively allowed comment which had not been allowed for some 80 or 90 years, that it is interesting that under section 89 there is a specific provision saying that no unfavourable inference can be drawn from the exercise of a right to silence during “official questioning” and it is restricted to that.

If one looks at the legislation, the Crown would say that it is clearly indicating that, certainly in New South Wales, the law will be that the exercise of right to silence prior to trial cannot be used in any way that is unfavourable to the accused, but that no such provision applies in relation to a failure to give evidence at trial.

KIRBY J: Can I ask you relevant to that: I have a recollection that the New South Wales Law Reform Commission quite recently put out some discussion paper on the issue of the right to silence at the trial. Is that correct or not?

MR ELLIS: Yes, there is - - -

KIRBY J: Why would they be bothering themselves if, in your submission, that is really a matter foreclosed by section 20?

MR ELLIS: It is a discussion paper that was issued, your Honour, but simply because section 20 allows comment to be made does not forestall any future discussion about whether that ought to continue to be so. I have not read the paper completely but ‑ ‑ ‑

GLEESON CJ: Was it not about proposals to require accused people or their lawyers to identify the issues at the trial at the beginning?

MR ELLIS: Yes. It is combined with issues of disclosure and the defence disclosure as well of not only issues but ‑ ‑ ‑

GLEESON CJ: That is a proposal that has been around for some years. Is there any jurisdiction in Australia where the accused is required to announce what his or her defences are at the beginning of the trial, apart from a statement of the general issue?

MR ELLIS: Not that I am aware of. Certainly there are a number of States where it is the practice for the defence to open their case.

GLEESON CJ: Yes. Is it the practice in New South Wales now?

MR ELLIS: It is now, yes.

GLEESON CJ: The defence does not have to open though.

MR ELLIS: Yes, it is optional.

GLEESON CJ: I can think of some reasons why it is an option that the accused would not take.

MR ELLIS: Yes, sometimes it is better to keep the powder dry, so as to speak, or to see what happens during the Crown case.

CALLINAN J: Any opening I have ever heard in New South Wales sounded more like a closing address to me.

MR ELLIS: I would have to say that that was my impression of the defence openings. They are sort of preambles to closing addresses.

GLEESON CJ: The moment an accused person or anybody on behalf of an accused person opens his or her mouth, the issues are narrowed.

MR ELLIS: Often that is so.

GLEESON CJ: If you say anything more than “Not guilty”.

MR ELLIS: Yes.

GLEESON CJ: The problem that we are addressing may not be so much a problem about the right to silence as a problem about the consequences of silence.

MR ELLIS: Of exercising the right, yes. I think that is so. That was perhaps the reason that I included in my submissions at 1.2 the issues raised by this appeal as including the effect that RPS had upon Weissensteiner, the effect of section 20, indeed, whether or not the law now was that each case was dealt with, as it were, on its merits with there being a spectrum of the Weissensteiner factual situation permitting Weissensteiner-type directions at one end, and the RPS factual situation requiring prohibition on such Weissensteiner directions at the other end. The Crown would say it causes some difficulty at the moment. There are a number of cases in the pipeline, of which obviously these are two, which deal with trial judges attempting to give directions of a Weissensteiner type. I think that it would be fair to say that at the moment trial judges are unsure what they should be saying, and often probably the conservative Crown’s approach would be, “Don’t say anything because it will cause problems”.

KIRBY J: That is an option that Weissensteiner leaves open, does it not?

MR ELLIS: Yes, it does, but that, clearly, is a discretion that resides in the trial judge to make no comment. Section 20 ‑ ‑ ‑

KIRBY J: But as the Chief Justice has pointed out repeatedly, that may, in some circumstances, create problems for the fairness of the trial so far as the accused is concerned.

MR ELLIS: Yes, I think that is clear. It is one thing to say that we should not make these comments because the comment has the imprimatur of being a judicial comment. I think some of the American authorities make reference to the fact it is one thing for the juries to go off on a frolic of their own, it is another thing if there is a direction from the court. But, I think it is fair to say that it would be far preferable for jurors to know precisely what they can and cannot do with any given legal point. Perhaps – it has nothing to do with this case – the issue of “why would she lie” has been dealt with in this Court, and I have certainly put submissions prior to this Court dealing with it in the Court of Criminal Appeal which were based on the similar premise that the jury retires, it is unlikely that not at least one of the jurors will say, “Why would the complainant lie?”. Once the juror has said it, there is then no guidance from the court that it ought not to be used to shift the onus.

GLEESON CJ: But there is another practical problem. Jurors often ask the trial judge the question, “What are we to make of the fact that this person has not given any evidence?”

MR ELLIS: Yes, that is so. So there are the two issues: there is the question which they ask and do not pass on to the court, and then the question which they ask themselves and also ask the Court. The Crown submission would be that if comment is made, it can be reviewed. This Court can determine, or Courts of Criminal Appeal can determine in any given case whether the comment was appropriate or not.

If there is the head-in-the-sand approach that we will not touch it, we will leave the juries to do with it as they will: one, we do not know what they do with it and, two, we cannot review what they do with it. We can with a trial by a judge alone because a judge since Fleming has been required to give pretty well full reasons and, therefore, his verdict, or her verdict, is more transparent.

GUMMOW J: What are those reasons saying nowadays?

MR ELLIS: That is a good question, your Honour, and I am not sure that judges have actually determined that they will run with Weissensteiner. I think the situation has been that it is all a bit too hard and they simply leave it. I am not aware of any particular case – which does not mean that there is not one, of course, your Honour. But, I think that it is simply put in the “too hard” basket.

KIRBY J: From the point of view of the trial judges throughout Australia, it would be much better, in a sense, if this Court now endorsed what Justice Callinan said in paragraph [106].

MR ELLIS: I am not sure that the Crown would agree with that. I think that what the Crown would say is that there ought to be clear directions in terms of principles which can be applied clearly to given facts which can show when it is that you can use some of the Weissensteiner directions, and when it is that you cannot. Obviously, that will still be a discretionary matter, but the point is that a judge, having exercised the discretion to give a particular direction, that can be reviewed and if the discretion is inappropriate – I do not think anybody would argue, your Honour, that the directions which perhaps were given in RPS clearly were reasonable in Weissensteiner. Whether or not in RPS, given that it was a direct evidence case, and there are then two issues: each time an accused fails to give evidence contrary to, for instance, a complainant in a child sexual assault case, leaving aside the fact that RPS had the difficulty involving multiple counts and the accused not being able to explain one count without confessing to other counts – which was a particularly difficult problem facing RPS, but does not face either of these case.

The fact is at the moment there is considerable doubt as to how RPS does apply and given that the majority decision in RPS does not avow that to Weissensteiner has been overruled ‑ ‑ ‑

KIRBY J: The joint reasons, you mean?

MR ELLIS: The joint reasons, yes. The passage, I think, at paragraph [20] that your Honour Justice Gummow referred to, it seems clear within that passage that the Court seems to be saying, “We will not read the prohibition in section 20 narrowly. It will be, as it were, interpreted generously”, but within that paragraph 20 there is an assumption that comment can be made and the Crown’s submission is that it is certainly different to what is said in paragraph [109] by his Honour Justice Callinan, which is that no comment that is unfavourable can be made.

Perhaps the interesting point about section 20 is that if, indeed, there is no comment other than a favourable comment can be made, the Crown says, “Why is it that in the section it prohibits Crown prosecutors from commenting?”. If the only comment to be made by a judge was a favourable comment for an accused, why is it necessary to prohibit a Crown prosecutor from making a favourable comment for the accused? The Crown’s submission ‑ ‑ ‑

GLEESON CJ: How do you decide what comment is favourable to an accused, bearing in mind what the Law Reform Commission said that is cited on the top of page 468 of the ALJR, where they said, and this is the purpose of the section:

Rather than making no comment and leaving the jury to draw what inferences they will, it seems preferable to permit a trial judge to instruct the jury as to the inferences they may, and may not, draw from the accused person’s silence.

Now, why is not any comment that accurately tells the jury what they can do, rather than leave it to “the jury to draw what inferences they will”, why is not any comment favourable to an accused?

MR ELLIS: It certainly will be favourable in the sense that the jury will be given clear instructions, but perhaps some of the comments will be unfavourable in the sense that the use that they can make will be unfavourable or have an unfavourable consequence. But the Crown submission is that it is clear on the reading of section 20 that it is intended to change what was a complete prohibition into a restricted prohibition, if you like. The only thing the judge cannot do is to make a comment which indicates that the right to silence was exercised by reason of a consciousness of guilt.

Then the prohibition is that the Crown cannot make any comment if, indeed ‑ one can understand that Crown comments may well generally, if it is an adversarial position, are perhaps seen to be unfavourable – that is not always so, but will often be unfavourable.

McHUGH J: But in support of your argument you can also refer to subsections (3) and (4) because it is the same power to comment and the same restriction on the comment in respect of:

(a) the defendant’s spouse or de facto spouse, or
(b) a parent or child –

not giving evidence.

MR ELLIS: Yes, that is so, your Honour, and that is something ‑ ‑ ‑

KIRBY J: But it is subject to the judge’s right to comment on the comment and that implies that if it slips out and the judge has to bring the jury back in no unmistakable terms, that this is a rather peculiar exercise they are engaged in.

MR ELLIS: Your Honour is dealing with what is the situation when a co‑accused comments but I think your Honour Justice McHugh was dealing with the fact that the judge can make a comment on the failure not only of the accused but on the failure of the spouse, the parent, child, de facto spouse.

McHUGH J: As long as he does not suggest that they fail to give evidence because the defendant was guilty of the offence.

MR ELLIS: Yes. So, it broadens it and takes it beyond the right to silence issue because witnesses obviously do not have a right to silence but it still is in the area of the onus of who has to prove the case. The Crown’s submission really is that if all of the appropriate directions are given in terms of the onus and the burden of proof, the presumption of innocence, if all of the directions are given in relation to the use which cannot be made, that is, that it cannot fill gaps which are not there, that it cannot make a case which is insufficient sufficient, that there may be many reasons why an accused would elect not to give evidence, if all of those directions are given then a direction that a jury in considering the weight that they give to a Crown witness can have regard to what is the fact, that is that there is no contradictory evidence, then the Crown says there is an even playing field and the jury know exactly what they can do, the accused indeed knows the precise consequences of his election not to give evidence.

Section 20 is dealing with giving evidence, it is not dealing with an explanation, it is not dealing with a record of interview, it is dealing with the failure of an accused to give evidence. So, even if there is an explanation before the jury by way of an ERISP or some other statement, the jury are entitled to consider that that is not on oath, has not been subject to cross-examination. And they have not sat and listened to the evidence being given.

I think that there is an example in the second case of Davis which was given by the trial where he indicated that if you had one witness who gave evidence for the Crown and then the defendant gave evidence, that may make it easier or more difficult for a judge to determine whether he was satisfied beyond reasonable doubt that the Crown had established its case. These are statements which probably are statements of trite logic and ‑ ‑ ‑

KIRBY J: Yes, but that does go to chipping away and eroding the accusatorial system and without the clear authority of Parliament to do so. You have slipped into the common mistake of talking abut the difference of proving guilt or innocence but that is absolutely antithetical to our system, it is guilt or failure to prove guilt.

MR ELLIS: But, your Honour, I was not endeavouring to indicate that it was a question of choice but rather where you had evidence to the contrary, that could make it more difficult to determine whether the Crown had proven its case beyond reasonable doubt, or it may make it easier. We have all been involved in cases where there can be a complete swing in the mood of the court after a particular witness has given evidence. Up to a certain point in time the Crown case might look fairly good, then an accused gives evidence and everybody thinks, “Well, that’s just blown the Crown case out of the water”. Other times the accused might give evidence and the reverse occurs that he is simply disbelieved and that disbelief makes it easier for the jury to accept the complaint made by the Crown witnesses.

The question can be asked that providing the specific warnings are given about how the use of the failure cannot add to an insufficient case, or cannot make an insufficient case sufficient, how it cannot fill gaps, it cannot make something out of nothing, but that what it can do is it can make the something that exists more readily acceptable in the sense that any doubt that may have existed about the reliability may no longer exist, that any issues of doubt in terms of honesty, for instance, may no longer exist. So that, the Crown would say that there is fairness to an accused to have an even playing field which requires the Court to give, as it were, the full spectrum of directions ‑ ‑ ‑

GLEESON CJ: Well, you can ask the question this way, can you not? “Having regard to what was decided in RPS, what would a trial judge direct a jury in New South Wales tomorrow in the facts of Weissensteiner’s Case emerged?” Suppose Mr Weissensteiner came up for trial in New South Wales tomorrow ‑ ‑ ‑

MR ELLIS: Three people in a boat.

GLEESON CJ: On the authority of RPS, what, if any, directions would the trial judge give the jury?

MR ELLIS: Your Honour, I think at the moment the correct answer to that would be that some judges would say, “I am not going to give any Weissensteiner direction because I am not clear as to what the law is at the moment”. Other judges may conclude that they would be prepared to give some type of direction and that would very much depend on how they interpreted RPS. I think that the Crown, at the moment, if it wanted to run the gauntlet of this, could submit to the court that it would be reasonable to give the direction, for instance, which was given in Davis’ Case, the next case, that is that the jury would take into account the failure in terms of their decision as to the weight that they would give to the Crown case.

Some of the five criticisms in RPS are, in fact, perhaps, different ways of saying the same thing. One of them, that is that absent evidence from the accused that the cross-examination, or the version in cross‑examination, is unsupported, well, that is a statement of fact. It is probably no more or less than saying that you can value the weight of the prosecution evidence by reason of the fact that there is a failure to account. The only area that I think is clear is that the Jones v Dunkel section 20 type breach could not be given but issues such as the absence of denial more readily discounts the doubts and allows you to accept the Crown witness or that the failure to give ‑ ‑ ‑

GLEESON CJ: But you do not have to speak in general terms. Suppose Weissensteiner came for trial in New South Wales tomorrow and the question arose, “In the light of RPS, what, if anything, may the judge say to the jury about the fact that they have not heard from the accused any explanation as to how the missing people came to depart from the vessel, leaving their jewellery and other personal property on it?”.

MR ELLIS: I think the range would be: no comment at all ‑ ‑ ‑

GLEESON CJ: What, no comment and let them work it out for themselves?

MR ELLIS: Yes. I think it is more likely to be what would happen, given that trial judges in New South Wales are simply not sure now, given RPS, precisely what can be said, so therefore it is safer to say nothing is the process of reasoning. If indeed something was said, I think that it would be perhaps restricted to the type of direction as I indicated that was given in Davis, that is that they can use the absence of evidence when they assess the weight that they give to the Crown witnesses.

KIRBY J: That itself may be a permissible comment but it is chipping away at the accusatorial system.

MR ELLIS: Depending on how you approach that. I understand what your Honour is saying.

GLEESON CJ: In the light of RPS, could the trial judge say to the jury, “You have heard no explanation from the accused, who is the only person capable of giving it, as to how he ended up in sole possession of a vessel on which the valuable jewellery and other personal effects of these missing people remained. In the absence of any explanation from the accused about that, you may more readily draw the inference that the Crown asks you to draw, which is that he’s a murderer”?

MR ELLIS: Your Honour, I think that on a reading of RPS that could be given.

GUMMOW J: The joint judgment deals with para [35], does it not?

MR ELLIS: Yes, and I think [27] also, your Honour. The joint judgment does seem to leave open that if another Weissensteiner came along, that that would be okay.

GLEESON CJ: That is contradictory of what Justice Callinan decided.

MR ELLIS: It is, yes, but the difficulty is not, your Honour, whether another Weissensteiner comes along tomorrow but it is whether another case somewhere between Weissensteiner and RPS arrives. That is why if one looks at these two cases of Azzopardi and Davis, factually they are different. The directions are different. Davis is only the one of the five sort of impugned directions. In Azzopardi there is all but the section 20 Jones v Dunkel, leaving aside the absent witness argument for the moment. So that is where the real difficulty is, is dealing with the cases that are somewhere towards the middle of the spectrum rather than at either end. I think it is clear that now following RPS that where it is a case of direct evidence, there would be no direction given, that it would only be in cases where inferences could be drawn or were available to the Crown from facts that Weissensteiner would be said still to exist following RPS. I think that is the effect of RPS. That is likely to be the way in which the principle would be applied but ‑ ‑ ‑

GLEESON CJ: So that in practice RPS would be treated as taking that passage in Weissensteiner that said “failure to explain or contradict evidence” and drawing a blue line through the words “or contradict”?

MR ELLIS: Yes, I think that is a fair way of summing it up, your Honour.

GLEESON CJ: Which is only another way of saying that the minority view in Weissensteiner has prevailed.

MR ELLIS: Excepting, your Honour, that on my reading of the minority in Weissensteiner, it was not necessarily completely inconsistent with the majority. It seemed to be on a different tangent, if you like. I know that it was a different result, but many of the comments made, if one looks at the two judgments, were not dissimilar and I think in ‑ ‑ ‑

McHUGH J: But the majority, if I recollect, thought it was failure to meet the inferences that could be drawn from the mass of the Crown. It was failure to meet the inference of guilt. In fact, that was what the trial judge’s summing up said, in effect. Whereas, Justice Gaudron and I would have confined it to inferences to be drawn from particular facts.

MR ELLIS: Yes, and failure to explain those particular facts.

McHUGH J: Yes.

MR ELLIS: Yes, that is how I understood it and I think to be fair your Honour has been fairly consistent in terms of your Honour’s judgment in RPS.

McHUGH J: Yes.

MR ELLIS: Even though your Honour was not in the minority, your Honour’s judgment in RPS is not on all fours with the other judgment in ‑ ‑ ‑

McHUGH J: No, it is a very different judgment, I think.

MR ELLIS: Yes, and that also perhaps leads ‑ ‑ ‑

McHUGH J: And certainly does not represent the law, the joint ‑ ‑ ‑

MR ELLIS: No, but the difficulty is, it adds to the confusion, if you like, in the minds of the trial judges in terms of the effect of RPS on Weissensteiner.

KIRBY J: That is not unreasonable because paragraph [27] specifically refers to Weissensteiner and appears to apply it. This is in the joint reasons.

MR ELLIS: Yes.

McHUGH J: I am not sure that is right, is it?

GLEESON CJ: I would only add to the words “trial judges” the words “intermediate courts of appeal”.

MR ELLIS: Yes, I would accept that correction.

KIRBY J: I mean, I really feel for a trial judge facing this problem and a request by the prosecutor or perhaps a jury as to giving directions. They really do not have very clear signals from this Court.

MR ELLIS: I think that is so, your Honour, and whilst I would be the first who would like to have each of these matters disposed of forthwith, perhaps I could say that it would be preferable that there be a Court constituted which could clarify exactly what trial judges are to do or not to do.

GLEESON CJ: There is a possible solution to that problem, Mr Ellis. It requires consent of both parties, and the same would apply to the next case, but it is not unknown for the parties to consent to judges who have not been present during the oral argument to participate in the decision of cases by reading the transcript of the oral argument.

MR ELLIS: Yes.

GLEESON CJ: As I say, that would require the consent of all parties and I realise that Mr Byrne and Mr Game would need to get instructions and perhaps they could do that over the luncheon adjournment, but you might need to get some instructions yourself.

MR ELLIS: I think I can probably do that. But I would think the Crown’s attitude at the moment would be to agree to, or to consent to that. In fact, I do not think I need to get instructions on that.

GLEESON CJ: But it does not solve another problem, which is that either of these two cases could possibly be disposed of on quite a narrow basis, one way or the other.

MR ELLIS: Yes, there is the principal argument on the one hand and then on the other hand is the application of principles in this case. Certainly the Crown’s position in both cases is that, even were the Court to conclude against the Crown on some of the legal issues, that the proviso is certainly very relevant to both of them.

KIRBY J: Well, it is much more relevant to Davis, I think.

MR ELLIS: Certainly to Davis, yes. The Crown case in Davis, your Honour, is that it ought to, in fact, be a proviso because it really, in the full context of that case ‑ ‑ ‑

KIRBY J: Well, we are not hearing that case now.

MR ELLIS: No. But similarly in this case, your Honour, the Crown does say that this case was conducted according to the law at the time. There were a number of directions which were given, but one has to ask the question, “If those directions had not been given, would the jury have acted on any different principle?” You need, in essence, to say that the jury would not have, of themselves, thought of some of these things and that they would not have had regard at all to the failure to give evidence. The Crown would say, the reality is that they were faced with a case where they knew, as a matter of fact, that Mr Azzopardi did not give evidence. They did not hear from him. It is unlikely that they would never have asked themselves what they could do with that failure. Or it is unlikely that no one would have said within that jury room, “Well, we can accept the Crown case. There are reasonable inferences and there is nothing to support any hypothesis consistent with innocence”.

So when the direction is given in relation to the use of inferences, they would have been clearly entitled to say, “Well, the accused has not explained to us anything about the telephone calls. He has not explained to us anything about a conversation with Mr Papalia in terms of what did he mean when he said, ‘I want you to kill somebody’? Was he joking? Did he mean the victim, Mr Gauci? The accused has not explained the movement of the parcel containing the gun from his possession to Mr Knibbs’ possession, back to his possession, and then its subsequent location at the Mirish home”.

GLEESON CJ: But this illustrates that underlying even the application of section 20, there is the ultimate principle to be applied as to what use is legitimately made of the failure of an accused to give evidence. Presumably, when you come to apply the proviso, you cannot attribute an impermissible process of reasoning to a jury.

MR ELLIS: No, and you could not make ‑ ‑ ‑

GLEESON CJ: But you can attribute to them a permissible process of reasoning and you can only do that if you have made up your own mind about what kind of a process of reasoning is permissible and what kind of a process of reasoning is impermissible.

MR ELLIS: Yes, I think that is so, your Honour, and I think the use must be determined before one considers section 20 because if the use is determined that you cannot, for instance, use it in the way in which some of these comments are then obviously you cannot make such a comment, so, its use literally has an impact upon what comment is available to the judge because judges cannot give juries directions on impermissible uses. Even where a section says that they can make a comment, that does not mean that that section overrides every other rule of admissibility. So that it is important to determine whether, as a matter of law, the jury as it is now – whether a jury without any instruction one way or the other, is entitled to reason along the lines of the Weissensteiner-type reasoning.

McHUGH J: Yes, but can I just ask you what your submission is on this point. In Weissensteiner the Court approved a direction which was couched in terms of failure to give evidence. It was said it was easier to draw an inference of guilt. It is not clear to me whether in RPS, when the joint judgment gave some approval to Weissensteiner, they were approving that or, as might appear from paragraph 27, they were only approving it in so far as it referred to the particular facts within the knowledge of the accused. If so, they were, in effect, adopting the approach of Justice Gaudron and myself in Weissensteiner because that was our point of departure with the majority in Weissensteiner.

MR ELLIS: Yes.

McHUGH J: What do you say about that?

MR ELLIS: Your Honour, there is another factor that is – well, perhaps there are three factors governing this area. One is whether or not it is simply necessary that there be something which is in the peculiar knowledge of the accused; secondly, whether it must be in a situation where that would rebut an inference or whether it is in a situation of simply rebutting direct evidence, and the third proposition is whether or not it is talking about evidence or whether an explanation from a record of interview is sufficient to deal with that.

The Crown’s submission is that section 20 is clearly speaking of evidence and the failure to give evidence. It is not speaking of a failure to give an explanation. It is a failure to give an explanation on oath, subject to cross-examination which is the subject of comment under section 20. So that depending upon which way one looks at it - if in every case - one could say in every child sexual assault case there are two people, generally, who know what happened, if anything happened, the complainant and the accused. So, does it mean that if in those cases an accused does not give evidence one can say those things would have been peculiarly within his knowledge, he has not given evidence so you can draw an inference adverse to him.

That is at one end of the spectrum. RPS seems to, clearly, I think, suggest that that is not to be done, that it is really only in a case when you have an inference which is available to be drawn from evidence which is itself sufficient to establish the Crown case that one can look at a failure to give evidence and say, “Well, the hypothesis consistent with innocence is not supported” or “Any question I had in my mind about the reliability of the complainant is now removed by the fact that there is no evidence to the contrary”.

CALLINAN J: Mr Ellis, can I – I am sorry, have you finished responding to that question?

MR ELLIS: I think there was another limb, but it has slipped to the back of my mind at the moment.

CALLINAN J: No, I am sorry to do that. Did you want to go on?

MR ELLIS: It is gone at the moment, your Honour. If it comes back, I will.

CALLINAN J: I apologise for that. Can I just ask you another question. When I read the summing up here, I noticed that after the trial judge referred to “the principle of the absent witness”, which is not an expression I have heard before but ‑ ‑ ‑

MR ELLIS: It is supposedly an expression that we all are familiar with, yet I was unfamiliar with it.

CALLINAN J: But having referred to that and saying that he intended to explain it to them, the principle, by reference to the case, through pages 259 to 263, in some elaborate detail he told them why the Crown, in effect, could not be expected to call witnesses whose absence had obviously been commented upon by the defence.

MR ELLIS: I am not sure whether they were or not, but, yes.

CALLINAN J: I assume that to be so. It may not be so, but that, it seemed to me, could be stood in stark contrast with the statements that he made about the accused’s failure to give evidence. It seemed to me, in effect, to compound ‑ if there were any error in the directions about the accused’s failure, I would have thought myself that what his Honour said in some elaborate detail about Crown witnesses might have compounded any error.

MR ELLIS: Your Honour, perhaps there are two things that I can say about that. If I take your Honour, firstly, to page 264. At the end of that first paragraph his Honour said:

although you need not, conclude that whatever they might have said would not assist the Crown in the prosecution of the accused.

The Crown would say, as I have said in the written submissions, that the tenor of the remarks related to inferences against the Crown, that is, rather than against the accused. That is the first point. The second aspect, your Honour, is that it was dealing with people who were absent. The accused certainly was not physically absent. He was there. They did not hear from him. So, in that sense, there was an absence of evidence.

CALLINAN J: But absent as witnesses.

MR ELLIS: Absence of evidence, yes.

CALLINAN J: They were absent as witnesses. I mean, I have never heard the expression “principle of the absent witness” before. Others may have. I have not.

MR ELLIS: Your Honour, I have never heard it in that term. Normally what happens or has happened in the past is that a direction – and it is usually against the Crown, very rarely in my experience is there ever a Jones v Dunkel against an accused. Leaving aside whether there should or should not be ‑ it is certainly very rarely it would happen – but the direction is that, simply, the Crown can get no solace. They can make an assumption against the Crown, but the court always then gives a direction, if there is evidence, to explain why a witness is not present because then you end up with a neutral situation. If there is an explanation it does not go against the Crown. If there is no explanation, the inference is against the Crown in that the jury can infer that the witness could not have given evidence that was favourable to the Crown.

CALLINAN J: I know that. It was just that ‑ my only point was that it was a very lengthy explanation about why each of these people ‑ and there is some detail about each one of them – might not have been irrelevant or ‑ ‑ ‑

MR ELLIS: But, your Honour, the whole summing up was something in excess of 100 pages. It was a very lengthy summing up. It probably seemingly was as long as the trial itself. That was said at page ‑ ‑ ‑

CALLINAN J: Is that right? The trial lasted 11 days, did it not?

MR ELLIS: Yes. I am not sure how long the summing up went. It certainly went for a couple of days.

CALLINAN J: About 100-odd pages.

MR ELLIS: It probably felt like 11 days to those who were listening to it. But the reality is that these directions were found at page 9 of 24 October, which was the second day, but the directions in relation to ‑ ‑ ‑

CALLINAN J: The theory is the jury remembers it all. That is the theory. You cannot say that you can disregard part of it or dilute the effect of part of it because it was said at a different stage from some other part of it.

MR ELLIS: His Honour Justice Wood simply indicated that it was so far removed in time and context that it was difficult to draw an inference that the jury would have connected the two. They were and are different topics. The Crown would say that his Honour’s reasoning on that point was a reasonable way in which the matter could be approached, because otherwise in every case you could never give a direction, even if it is one against the Crown, during the course of a summing up. I mean, in a short summing up that might last for a couple of hours, if you have a Jones v Dunkel direction against the Crown and the accused does not give evidence and you then have directions in relation to that ‑ ‑ ‑

GLEESON CJ: Was it subject to complaint at the trial? We have already seen the complaints that were made.

MR ELLIS: I do not believe it was, your Honour, no.

GLEESON CJ: A principle that is sometimes applied is that where you do not find trial counsel complaining about something, that is an indication that nobody ever made the connection at the trial.

MR ELLIS: Yes. As I understand it, there was no specific complaint about that. The Crown would certainly say that the reasonable inference to draw from that was that the tenor of the ‑ ‑ ‑

CALLINAN J: I am only suggesting that it is an argument in aid of the argument that the summing up in relation to the accused’s failure to give evidence was impermissible. It is not a separate argument; it merely is an argument in aid to it.

MR ELLIS: I understand that, your Honour.

CALLINAN J: Once, in my view, the accused’s counsel objected to the summing up, then that was all that he was obliged to do.

MR ELLIS: He objected to a number of aspects of it.

CALLINAN J: To that part of it, yes.

MR ELLIS: But he did not object to ‑ ‑ ‑

CALLINAN J: Because he said it was unfair. I am merely saying that in my view, if there is any unfairness, it may have been arguably compounded by the contrast that I have drawn.

MR ELLIS: I understand that, your Honour, and the Crown would rely upon the conclusions reached by Justice Sully that there was no reasonable inference to draw in terms of connecting the two.

CALLINAN J: Where did Justice Sully draw that inference, I am sorry?

MR ELLIS: Page 430, your Honour, he commenced to deal with it. Then over the page at 431 he concluded at about point 7:

I think, also, that a fair reading of the entirety of what was said, in the context of the summing up as a whole, demonstrates that the witnesses in question were all prospective Crown witnesses, rather than prospective witnesses –

for the appellant. A little earlier he said:

The direction about absent witnesses was given well in advance of, and well separated from, the directions earlier quoted concerning the failure of the appellant himself to give evidence.

CALLINAN J: That of itself cannot justify it. It may be justifiable on other grounds but it cannot be justified simply upon the basis of where it is to be found in a long summing up.

MR ELLIS: No, but it is a factor. It is perhaps not the telling factor, but it is a factor in determining whether or not it would have caused prejudice or could have been read or taken by the jury in some prejudicial way by making a connection between absent witness directions and the directions regarding the failure to give evidence.

McHUGH J: Have you looked at any of the United States cases? After all, the United States has a constitutional right against self‑incrimination and, notwithstanding that, legislatures throughout the States did prohibit comment, but in a number of States – California was one – comment was permitted by legislation and I think the same applies in the federal system, that there are quite a number of cases where trial judges have been held to be acting within the law and within the Constitution in commenting on the failure of the accused to explain certain facts.

MR ELLIS: Yes. Your Honour, I have read some, but not all, of the cases. I have read, for instance, some of the Canadian cases as well, but there are a lot of cases that deal with it. I think in RPS many of the cases were raised. Certainly in, I think it was Noble’s Case in the Canadian Supreme Court, there was a distinction drawn there. I made a note, which I cannot locate at the moment, about that. That was in relation to, I think, a similar provision.

It was not actually spelt out in the judgment, so I was not able to check that in the time that I had, but section 4 of the Canadian Evidence Act, it was said that it is not an instruction to consider the failure of the accused to testify, per se, but rather it is simply instructing the jury to take note of the fact that no evidence had been led to contradict the particular point. Some may say that is a fairly fine distinction or a distinction without a difference, but it still is a distinction, especially if one wants to deal with the reality of what is happening in the trial, it is a not unreasonable distinction from a practical point of view.

KIRBY J: You helpfully responded by indicating that the Crown would consent to the procedure that you suggested and that the matter should be ‑ ‑ ‑

MR ELLIS: On the Chief Justice’s suggestion, I think the addition of two, yes.

KIRBY J: ‑ ‑ ‑ dealt with by the Full Court, but I just have a little anxiety about that, that we have been arguing this case within the parameters of the attempt to reconcile the two decisions and, in a sense, maybe if one is at large, one approaches the problem of establishing overarching principles in a slightly different way than if your task is the application of RPS.

MR ELLIS: Yes.

KIRBY J: In a way, what was done by the Court of Criminal Appeal of New South Wales in OGD is a very desirable thing, that there should be some clear principles that trial judges can pick up and run with and apply. But those principles would be different in Australian jurisdictions which have the Evidence Act, or might be different, than they would be in jurisdictions that do not.

MR ELLIS: Depending upon the content of each jurisdiction in terms of whether there is a prohibition or a ‑ ‑ ‑

GUMMOW J: Well, Victoria has 407, I think. I think they still have their equivalent of 407.

MR ELLIS: Yes, that is so. There are some States ‑ ‑ ‑

GUMMOW J: Queensland has nothing, I think.

MR ELLIS: Yes. So there is a range ‑ ‑ ‑

KIRBY J: My point is that if the Full Court were to reconsider this matter at large, then the Court would need to have assistance on the position in all States of Australia and we would not just be dealing with these two particular cases. Is that not correct?

MR ELLIS: Yes, although the Crown would say it would be possible for the Court to deal with the principle in the context of New South Wales without - - -

KIRBY J: But we are not the High Court of New South Wales.

MR ELLIS: I understand that, your Honour, but the case is a New South Wales case, but all I was trying to say was that the Court could do that without necessarily adversely impacting upon other provisions. I mean, for instance, there is not a problem with Victoria, because there is a prohibition on comment. In terms of the other States, I think that they are either very similar to New South Wales or there is no restriction on the comment. I am not sure if that is still the position in Queensland; it certainly was ‑ ‑ ‑

GUMMOW J: ….same as Victoria, I think.

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

KIRBY J: Do we have the statutory provisions in the other States that make this point clear, because if one is looking at it as a matter of concept and principle, then you really have to have them.

MR ELLIS: The only State I am not sure on, your Honour, is South Australia. I know Western Australia and Tasmania each have Codes which have a provision dealing with it.

KIRBY J: But are those details and references to them and the cases on them before this Court?

MR ELLIS: No.

GLEESON CJ: I thought Weissensteiner – it may be out of date now – gives references to the statutory provision in all Australian jurisdiction.

MR ELLIS: Yes, it does, your Honour.

GLEESON CJ: The other question is whether they are up to date?

MR ELLIS: Yes, I am not able to say whether there has been a change. Certainly since Weissensteiner, there has been a change in New South Wales, but whether there are changes elsewhere - - -

KIRBY J: Has the Crown anywhere - I do not recollect seeing it in either of these cases - set out in, what I might call an OGD way, the steps that it says should constitute in a way a model set of principles?

MR ELLIS: I have not done that in my written submissions. I, in fact, made a note last night of what I would say to your Honours if asked that question, in terms of the directions that could be given. I can orally itemise that.

KIRBY J: Well it may be desirable before – we had that last week in another case – this litigation is over in both of these matters that we have what the parties say is a type-OGD set of principles that deal with the RPS and Weissensteiner problem.

MR ELLIS: That is so, your Honour. The Court indeed could ask that further written submissions be filed to address some of those points or, indeed - I am not sure what the situation is in terms if the Court is fully constituted whether the two absent members might have some other questions which they would want the parties to direct their attention to, but it would be conceivable for the Court simply to, at some point in time, indicate to the parties that they would like further written submissions on particular aspects.

KIRBY J: Of one thing you can be assured, that if the Justices felt they had questions they would ask them.

MR ELLIS: Yes, I imagined that to be so, your Honour. I am not sure whether it would serve any purpose for me to now orally itemise what I would ‑ ‑ ‑

KIRBY J: It would be better that you put your last night’s effort into a refined form, I would think, speaking for myself.

MR ELLIS: Yes, I would prefer to do that, your Honour. Perhaps if I deal then specifically with the case of Azzopardi. Generally speaking, the Crown’s submissions are, I think, fairly extensively covered in the written submissions. I do not wish to take your Honours through those, and I think there are other questions that have been touched on. But, in a quick summary, the Crown would say that this is a case where there were inferences which were available to be drawn. So, in that sense, it is not an RPS direct evidence only situation. That there was no section 20 breach, or Jones v Dunkel breach. That there were no multiple counts leading to difficulties involved in explaining one offence and thereby having to admit another.

There were good character directions which clearly conveyed to the jury, and correctly conveyed to the jury, those aspects of good character which were relevant, and more importantly though, relating those to the record of interview, so that the jury did, in fact, have what had been contained in the record of interview by the accused clearly before them, and had to bear it in mind as the truth, and had to have regard to it in light of the character directions and that it was, in fact, the correct law at the time. The Crown would say that there is nothing which would suggest that there was, in fact, a miscarriage of justice, certainly, nothing which would establish that there was a substantial miscarriage of justice.

That it is unlikely that the jury’s reasoning process was affected at all by the directions which were given that it was a strong Crown case. Circumstantial or inferential material was strongly supportive of the accomplice. The Crown’s submission is that there was no reasonable hypothesis consistent with innocence, and that in all of those circumstances, the appeal ought to be dismissed. Unless there is some other particular area ‑ ‑ ‑

GLEESON CJ: Thank you, Mr Ellis. Yes, Mr Byrne?

MR BYRNE: Your Honours, can I address initially that question that your Honour the Chief Justice raised about the way in which a jury might be directed today in New South Wales, in the light of RPS in a Weissensteiner-type case ‑ ‑ ‑

GLEESON CJ: In the very Weissensteiner case.

MR BYRNE: Certainly, in the precise factual circumstances of Weissensteiner. The answer, in our respectful submission, is that it would depend on the way in which the case was run. If there were, on behalf of the accused person, and presumably through addresses or it may be through cross-examination of police investigators, if there were some positive contention run that these people may have been washed overboard or they may have been the victim of pirates or people operating in the South Pacific area, then it would have been legitimate, if that positive proposition had been put on behalf of the accused, for the trial judge to say, “Well, that is information that is peculiarly within the knowledge of the accused person and you have not heard anything about it, so that it is not a matter for the jury, but you may think it is not a reasonable hypothesis on the evidence that you have heard”.

GLEESON CJ: That would not offend the prohibition in section 20?

MR BYRNE: Not in my submission, no.

GLEESON CJ: Would you characterise it as a comment unfavourable to the accused?

MR BYRNE: It is a comment unfavourable to the accused, yes, but not one that is prohibited by section 20 because it is not pointing to the fact that the accused did not give evidence of that matter. It is simply saying that there is not any material upon which that contention can be based and that gets back to the proposition or the notion canvassed in the joint judgment of Justices McHugh and Gaudron in Weissensteiner about unexplained facts.

It is not so much the failure to give evidence which entitles a process of reasoning to be followed through by the tribunal of fact, but the fact that there are unexplained facts which were peculiarly within the knowledge of the accused person to explain. The circumstances that were established by the circumstantial evidence in Weissensteiner were essentially that the two missing people had involuntarily departed from the boat. They were seen on the boat and the boat was then seen without them. The proposition was that their departure was clearly involuntary.

GLEESON CJ: But if the practical effect of RPS is that the minority view in Weissensteiner has now prevailed, that means that for six years trial judges and intermediate courts of appeal who were bound by Weissensteiner were directing juries or disposing of criminal appeals on the basis of a law that has now been altered.

MR BYRNE: Yes, that may well be the situation.

KIRBY J: But that would have been so with McKinney and Judge? That is just part of the legal process.

CALLINAN J: It might depend upon whether in the jurisdiction there was a provision about what a judge might or might not do. Queensland did not have one.

MR BYRNE: No.

CALLINAN J: You may not know whether New South Wales was the only jurisdiction that had provisions about this before the Evidence Act. I do not know.

MR BYRNE: I have looked at them but I did not follow them for the purpose of this case because of the limited way in which we had put our argument.

GLEESON CJ: What would be the position in relation to a trial judge in Queensland if Weissensteiner arose tomorrow? Would RPS have any bearing on that?

MR BYRNE: In our submission, it would, because RPS is a case which is not exclusively confined to the provisions of section 20. What RPS says is that there are certain things that cannot legitimately be inferred merely from a failure to give evidence.

GLEESON CJ: So, in your submission, the effect of RPS is that if tomorrow the trial of Weissensteiner occurred and Weissensteiner was directed as in the actual trial of Weissensteiner, that would be a misdirection?

MR BYRNE: On the specific facts of Weissensteiner, the direction may have been perhaps a little more carefully worded. Weissensteiner was a very unusual case though. It is fair to say that Weissensteiner is a unique case, in our submission.

GUMMOW J: It is not at all clear where the crimes took place. It seems to have been on the high seas somewhere.

MR BYRNE: Yes.

CALLINAN J: It seems to have been assumed that it was the Queensland Criminal Code and Queensland law applies.

GUMMOW J: Yes, it does.

MR BYRNE: I think that may have been because the ‑ ‑ ‑

CALLINAN J: At some stage I think the point may have been taken in relation to that in Weissensteiner, is that right?

MR BYRNE: I cannot confess to know the history of the matter at all, but the facts seem to suggest that Weissensteiner had been seen in and around the area of Cairns and only fairly shortly later was seen again with the boat on his own, so that he could not have got very far, and then, of course, went on a long journey and which he told a lot ‑ ‑ ‑

GLEESON CJ: If Weissensteiner is now to be regarded as a case that turned entirely on the manner in which the trial was conducted on the part of the accused, you would not get a breath of a suggestion of that from anything that is said in any of the judgments.

MR BYRNE: The joint judgment of the majority – can I just take your Honours to that, at page 228, where their Honours say this:

Not every case calls for explanation or contradiction in the form of evidence from the accused. There may be no facts peculiarly within the accused’s knowledge. Even if there are facts peculiarly within the accused’s knowledge the deficiencies in the prosecution case may be sufficient to account for the accused remaining silent

In Weissensteiner’s Case it could, in our submission, properly, reasonably be said that there was clearly matters peculiarly within the accused’s knowledge, namely the way in which these people disappeared from the boat.

GLEESON CJ: Mr Byrne, is that a convenient time?

MR BYRNE: It is, your Honour.

GLEESON CJ: We will adjourn until 2.15.

AT 12.44 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.16 PM:

GLEESON CJ: How long do you expect to require to complete your submissions, Mr Byrne?

MR BYRNE: Your Honour, fairly shortly, not long. The only question, your Honours, that issue that was raised prior to the adjournment, we would have no objection to the matter being referred to a Full Bench of seven.

GLEESON CJ: Good. I have a proposal that I am going to put to you and to the counsel in the next case, but if you are only going to spend a few minutes completing your oral submissions, it may be a good idea for you to do that.

MR BYRNE: May it please your Honours. Just in relation to one matter, your Honour Justice Kirby raised the question about whether this was a case in which the Court may consider the application of the proviso.

KIRBY J: I did, indeed, and I am considering it.

MR BYRNE: The circumstances of this case have been contended by the Crown to constitute a strong case. The fact is, however, that each of the principal witnesses for the prosecution were accomplice witnesses in respect of whom the jury had to be given, and were given, an appropriate direction about the reliability of their evidence.

At the conclusion of the Crown case, the jury deliberated for a very lengthy period before finally bringing in a verdict of guilty. It is not a case, in our submission, which could be said to have been so strong that it would have resulted inevitably in a verdict of guilty if the jury had not been misdirected in the way that we contend that they were. Perhaps the ‑ ‑ ‑

KIRBY J: I realise it is not as strong as I presently think Davis is, but it was a fairly clear-cut issue. You yourself have agreed that the point of omission is a particular point and there was character evidence which was called and a strong direction given to the jury favourable to your client. So far as the accomplice witnesses were concerned, that is just a fact of life in this sort of case and the direction was given which you concede was conformable to the law. So that, if you look at it as a whole, I think the question has to be considered as to whether the proviso is appropriate.

MR BYRNE: The direction that was given in terms of the good character of the appellant, whilst unobjectionable, cannot, in our respectful submission, be said to be a strong direction. It was, with respect, a standard direction in relation to that matter, but beyond the complaints that have been raised in relation to the directions which concerned the way in which the jury might use the failure of the appellant to give evidence, there is in this case ‑ and it is a matter which, as we have put in our written submissions, takes this case significantly beyond the circumstances in RPS, and that was the failure of the learned judge effectively to put the case for the defence as it existed in the record of interview.

This jury were directed on four separate occasions ‑ the specific references are in the written submissions for the appellant ‑ but four times they were directed in terms which suggested that there was no contradiction or no denial of the allegations made by witnesses for the prosecution. That, again, contrasts significantly with the summing up which was held to be inadequate in RPS where the trial judge in that case, in circumstances where the interview given by the accused person to police was much less specific than this one, reminded the jury of the need to take that matter into account on, coincidentally, four separate occasions.

But this was a case where there were significant misdirections, there were significant omissions in relation to the defence case, and in the ultimate, it was a case which, essentially, depended entirely upon the evidence of accomplice witnesses. The so-called circumstantial evidence was limited to a very minor matter relating to telephone calls which were not expressly or exclusively linked to the accused, the appellant in this Court, they were merely made from the phone at his home and they were made to a mobile phone. The person who was the registered owner of that mobile phone was the person who resided in the place where the gun was found. But it is not such a conclusive link between the appellant and the gun as is contended for by the Crown in their submissions.

Your Honours, those are the matters that we would wish to put in relation to the proviso but perhaps, finally, this matter on that point: in Weissensteiner’s Case itself, in the joint judgment of Justices Gaudron and McHugh, who dissented from the rest of the Court as to the ultimate determination of that appeal, their Honours held that it was not a case in which the proviso could be applied, notwithstanding that Weissensteiner could be said to be a very strong case, a very strong circumstantial case of guilt.

The conclusion was drawn that whilst it was a very strong case, it could not be said that a conviction was inevitable. The case for the Crown in this appellant’s case was nowhere near, in our submission, the strength of Weissensteiner’s Case when one looks at both the quality and the quantity of the evidence presented. Those are our submissions, if your Honours please.

GLEESON CJ: Mr Byrne, before treating you as having formally concluded your submissions, could I say that for reasons that emerged in the course of discussion this morning, the Court is of the view that this case should be decided by a Bench of seven but, as was also mentioned this morning, it is quite conceivable that the other two members of the Court might wish to have some questions of their own to ask. Whilst we have the consent of both sides to them reading the transcript of the argument that has taken place so far, we think the best course to pursue is to stand this matter over to a future date to be listed before a Bench of seven, on which occasion there may be very little more to be said but at least people will have the opportunity to say something. As to what that occasion might be, I would like to hear what Mr Game has to say in relation to the next matter. So, before we finally adjourn this matter, we will call the matter of Davis v The Queen.

AT 2.25 PM THE MATTER OF DAVIS V THE QUEEN
WAS CALLED

GLEESON CJ: Mr Game, subject to any comments you had to make, we thought that it would be appropriate to have your case heard by a Bench of seven also. The proposal that we have in mind is that the matter of Azzopardi, which is part heard, and your application for special leave to appeal, which is yet to begin, should be listed together before a Bench of seven at 11.00 am on Monday, 20 November. How would you be placed in that respect? You have an opportunity to make any alternative suggestion, if you want one.

MR GAME: Well, your Honour, we are quite happy to accept that proposal.

GLEESON CJ: Mr Ellis, is there anything you would want to say about that?

MR ELLIS: No, your Honour, I am content with that.

MR GAME: We are still a special leave application, I take it?

GLEESON CJ: Indeed you are.

MR GAME: We are struggling along.

GLEESON CJ: You may never improve your position. Counsel will understand from the exchanges that occurred this morning that one of the matters that we wish to hear argument on is the current status of Weissensteiner as an authority, particularly in New South Wales, in the light of section 20 of the Evidence Act, and in the light of the decision of this Court in RPS.

MR GAME: Yes.

GLEESON CJ: Very well then, the matter of Azzopardi v The Queen will be adjourned to Monday, 20 November at 11.00 am ‑ ‑ ‑

MR GAME: Can I just ask you a question, your Honour? I take it that we should be in a position to address the Court on some more basic questions about what the process is of drawing inferences, that is to say, some of the more difficult questions that are addressed in ‑ ‑ ‑

GLEESON CJ: You are quite right about that, yes.

McHUGH J: I think it requires a fundamental analysis of the whole document. You go back to the very basics of the law.

GLEESON CJ: It would require reading - - -

KIRBY J: The basis in terms of the accusatorial system, and with not just a few historical allusions.

GLEESON CJ: It would cover, for example, the situation that applies where judges and magistrates are deciding criminal cases without juries. Very well. Davis v The Queen will also be adjourned until 11.00 am on Monday, 20 November.

The possibility of some further written submissions was raised this morning, and all parties to those two cases are at liberty to supplement their written submissions between now and 20 November.

MR GAME: It may be of more assistance to the Court if we, as it were, substitute the submissions that we put in with submissions that, as a single set of submissions, address the issues.

GLEESON CJ: Yes, that may be of more assistance.

MR GAME: We will approach it on that basis.

GLEESON CJ: Very well.

AT 2.28 PM THE MATTER WAS ADJOURNED
UNTIL MONDAY, 20 NOVEMBER 2000

[2000] HCATrans 591

11 October 2000

Key Legal Topics

Areas of Law

Criminal Law

Evidence

Legal Concepts

Charge

Sentencing

Appeal