Director of Public Prosecutions v Ivanovic

[2003] VSC 403

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1457 of 2002

DIRECTOR OF PUBLIC PROSECUTIONS

v

THOMAS IVANOVIC

Ruling No. 2

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JUDGE:	Cummins J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 September 2003
DATE OF RULING:	15 September 2003
CASE MAY BE CITED AS:	DPP v Ivanovic
MEDIUM NEUTRAL CITATION:	[2003] VSC 403

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CRIMINAL LAW AND PROCEDURE – Murder – Jury trial – Accused declining to answer police questions – Permissible for prosecution to refer to that circumstance where jury informed of the accused's right so to decline – R v Hartwick no. 106 of 1995 (20 December 1995) – Petty v R (1991) 173 CLR 95 - Sorby & Anor v Commonwealth & Ors (1983) 152 CLR 281.

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APPEARANCES:	Counsel	Solicitors
For the Director	Mr W. Morgan-Payler Q.C.	Office of Public Prosecutions
For the Accused	Mr R. Richter Q.C. and Mr C. Rozencwajg	Theo Magazis

HIS HONOUR:

1. The learned senior prosecutor, Mr Morgan-Payler, has foreshadowed that he wishes to inform the jury by appropriate evidentiary means that the accused on 9 January 2002 exercised his right not to answer police questions, he having received legal advice. 

1. The question is in my view certain to occur to the jury whether investigating police gave the accused, who at the scene had said to a number of civilians that he was acting in self-defence, an opportunity to state what he said the self-defence was.

1. It is a distraction for the jury to have to go through the mental exercise of such an obvious question remaining unanswered throughout the trial when such an obvious question can properly be laid to rest.  It is a burden upon a jury to eschew such an obvious matter.  No doubt properly directed they would succeed in doing so, but it is a burden upon them to do so.  Each juror has sworn or affirmed to give a true verdict according to the evidence. Jurors should be given every proper assistance in that function, assuming it is fair to the accused and consonant with legal principle.  Jurors should not be unnecessarily burdened in their function.

1. In my view there is no prejudice whatsoever to the accused in a neutral, non-prejudicial formula such as the one foreshadowed by Mr Morgan-Payler being briefly stated in evidence by the informant.  In my experience, juries well understand, and demonstrate that they well understand, the intrinsic fairness in an accused being told that he or she has a right to decline to answer questions.  In my view also, and it is demonstrated daily in the Courts, juries also understand the intrinsic unfairness of drawing an inference adverse to an accused for declining to answer questions after investigating police correctly told the accused that he or she was not obliged to answer questions.  The eschewing of such unfairness must be the subject of a direction of law from the trial Judge, a direction I regularly give.  There is nothing to suggest juries do not understand and act on such direction;  indeed juries by their response, and verdicts, demonstrate they do understand and act on such directions.

1. I am conscious of what the High Court said in R v Petty[1] and what Callaway JA said in R v. Hartwick.[2]   In Petty v R at 99 Mason C.J., Deane, Toohey and McHugh JJ said:

"That incident of the right of silence means that, in a criminal trial, it should not be suggested, either by evidence led by the Crown or by questions asked or comments made by the trial judge or the Crown Prosecutor, that an accused's exercise of the right of silence may provide a basis for inferring a consciousness of guilt.  Thus, to take an example, the Crown should not lead evidence that, when charged, the accused made no reply.  Nor should it be suggested that previous silence about a defence raised at the trial provides a basis for inferring that the defence is a new invention or is rendered suspect or unacceptable."

[1](1991) 173 CLR 95 at 99 per Mason CJ and Deane, Toohey and McHugh JJ.

[2]No. 106 of 1995 (20 December 1995) at pp.5-6 (in which Charles and Vincent JJ.A. agreed).

1. In R v Hartwick Callaway J.A. at 5-6 said that the sentence in Petty commencing with "Thus" is not of limited application.  However in my respectful view those passages from those authorities do not preclude in an appropriate case a neutral formula being used whereby the jury is told that the accused was properly informed by investigating police that he or she was not obliged to answer questions and that the accused exercised that right.  For the formula to be utilised, it is not necessary for the defence to put in terms that police conduct was improper or unfair.  It is sufficient if the question is likely to arise in the jury's mind on the evidence whether investigating police afforded or denied the accused the right to speak.  Here, plainly it is likely to arise, because of the statements by the accused at the scene that he was acting in self-defence and the position at trial which will be that he was acting in self-defence.  The jury is entitled not to be distracted or burdened by the spectre that they are judges in a proceeding lacking due process because the accused may have been prevented from speaking, or not offered the facility of speaking, by investigating police.  Further, there is, in the neutral formula proposed by Mr Morgan-Payler, nothing which would "suggest … that an accused's exercise of the right of silence may provide a basis for inferring a consciousness of guilt"[3].  Indeed that erroneous reasoning will be precluded by specific judicial direction.  

   [3]Ibid.

1. The right of an accused not to answer police questions should not be derogated from, and the prohibition upon the drawing of an adverse inference therefrom likewise should not be diminished or deflected.  I wholly agree, with respect, with that which was stated by Gibbs C.J. in Sorby & Anor v The Commonwealth & Ors[4] (said in relation to s.6DD Royal Commissions Act 1902 (Cwlth) but applicable as general principle):

"It is a cardinal principle of our system of justice that the Crown must prove the guilt of an accused person, and the protection which that principle affords to the liberty of the individual will be weakened if power exists to compel a suspected person to confess his guilt.  Moreover the existence of such a power tends to lead to abuse and to the concomitant moral deterioration in methods of obtaining evidence and in the general administration of justice:  Validity of s.92(4) of The Vehicles Act 1957 (Saskatchewan)[5]."

Here, unlike with s.6DD, there is no issue as to compulsion to answer questions.  However, the reasoning of Gibbs C.J. applies antecedently to the diminution or deflection, by adverse inference, of an accused's right of silence to police questioning.  The law should set its face resolutely against any such tendency.

[4](1983) 152 CLR 281 at 294.

[5](1958) S.C.R. 608 at 619.

1. However, the utilisation to the jury of a neutral formula that the investigating police correctly told the accused that he was not obliged to answer questions and that the accused exercised that right, supported by appropriate judicial direction, involves no diminution or deflection of the fundamental principle underlying Gibbs C.J.'s statement in Sorby & Anor v The Commonwealth of Australia & Ors.  What the formulation does is assist, properly, the jury in its vital function of giving a true verdict according to the evidence.  It does so by removing, properly and in a non-prejudicial way, the spectre that the jury might be part of a proceeding lacking due process.

1. Accordingly, I rule that the formula is permissible.  I shall give the jury an appropriate direction also.