Fraser v The Queen

[1989] HCATrans 75

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B28 of 1988

B e t w e e n -

LIONEL DONALD FRASER

Applicant

and

THE QUEEN

Respondent

Application for special

leave to appeal

MASON CJ

BRENNAN J

DEANE ,T

TOOHEY J

Fraser

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 7 APRIL 1989, AT 10.20 AH

Copyright in the High Court of Australia

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MR W.T. McMILLAN:  May it please the Court, I appear

for the applicant in this matter, together

with my learned friend, MR P.J. ALCORN.

(instructed by the Public Defender)

MASON CJ: Yes, Mr McMillan.

MR D.G. STURGESS, QC: If the Court pleases, I appear

with my learned friend, MR M.J. BYRNE, for

the respondent. ( Instructed by Director of Prosecutions)

MASON CJ:  Yes, Mr Sturgess. Mr McMillan?

MR McMILLAN:  Your Honours, this application for special

leave from the Court of Criminal Appeal in

Queensland is concerned with two points which

arose out of one major point of contention,
which revolved around the questions posed to

the applicant in cross-examination by the

Crown Prosecutor at his trial. He had been

charged with one count of rape alleged to

have occurred at Charleville on 23 February 1986.

Perhaps before I go on I should hand up a copy

of my outline together with some authorities

which I will be referring to.

MASON CJ:	Yes, if you would.	Yes, Mr McMillan.
MR McMILLAN:	Thank you, Your Honour.	The applicant was

tried on 23, 24 and 25 September 1987 before

the Honourable Mr Justice Carter and a jury at

Roma. He was found guilty of the offence, from

which verdict he appealed. The appeal was heard

on 7 March 1988. It was dismissed by that court

which consisted of Chief Justice Andrews, and

Justices Thomas and de Jersey. The decision of

the Court was delivered by Justice Thomas.

(Continued on page 3)

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Fraser

MR McMILLAN (continuing):  The subject of the compiaint against

the decision of the Court of Criminal Appeal is

concerned with a passage in the cross-examination

of the accused which appears at pages 115 to 116 of

the record.

Now, to place that cross-examination in context,

it is necessary to briefly traverse the evidence. It

was the Crown case that the complainant had been

sexually assaulted by the applicant following upon a

party on a river bank at Charleville. The Crown

alleged that the assault took place in an area of

grass near a dirt roadway. The applicant's case was that the complainant had consented to sexual

conduct and a Detective Flood was the detective

sergeant in charge of the investigation.

After giving evidence as to interviewing the

complainant in the early yours of 24 February, he

then spoke to the accused at approximately 5.30 am

that day and, at pages 60 and 61, is set out a

conversation recorded by the police officer. I take

the Court to that. It commences at approximately

line 22. The learned trial judge gave leave for

the officer to refer to his notes and, after

introducinghimself, the sergeant said:

'I have a search warrant here in my possession

to search a residence and look for certain

items of clothing." He replied, "What's this

for?" I said, "Lavina Lawton has made a

complaint this morning claiming that you

forced her to have sexual intercourse with

her against her will." He replied, "I didn't

think she would do it. She said she was going

to, but I didn't think she would." I said,

"Can I have a look for this property that I

want?" He said, "What do you want?" I said,

"The clothing you were wearing tonight and

also it has been suggested that you still have

a pair of panties that Lavina was wearing."
He said, "Come and have a look.	I didn't
touch that bloody girl.	She just doesn't

like me and has made this up."

(Continued on page 4)

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Fraser

MR McMILLAN (continuing):  And the~ there are questions

regarding what clothing he had been wearing that

night. On 2] February at approximately 1.50 pm

the record of interview was then conducted by

Flood with the applicant. In that record of

interview Flood outlined to the applicant certain

allegations and he was issued with a warning

that he need not say anything because everything he

would say - or might say - would be taken down in evidence and tendered in a court. And after issuing that

warning the Crown prosecutor then put to Flood

an examination in-chief, at page 62, lines 1 to 9:

And in that record of interview you outlined

to him the allegations?-- Yes.

And you issued him with a warning that he

need not say anything as everything he would

say - or might say - would be taken down

in evidence?-- Yes.

And might be tendered in a court?-- That's so.

After you had issued that warning the accused,

consistent with that right that you outlined

to him earlier, declined to answer any further

questions; is that correct?-- Yes.

The prosecutor then finished his examination

in-chief.

In cross-examination no questions were asked

concerning the taking of that record of interview;

indeed, there was no written record of interview

tendered for obvious reasons. And in further cross-

examination, at page 66, reference is made to

the applicant indicating that at the time the

record of interview was taken he·did not wish to

answer any further questions or make any statement

but he would tender a written statement in due

course. And I would take the Court to approximately

line 21 - perhaps I should go back to the earlier

question: 

When that record of interview - when the

typing concluded, he had availed himself

of his rights - you advised him of his rights

and he availed himself of those rights,

but I think he did say at some later stage

he might give you a statement?-- He made

a reply along those lines. I just don't

recall without looking at the document.

It's at the top of the page on p. 2,

Mr Copley.

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Fraser

MR McMILLAN (continuing):

I thought it was too.	He said, "Yes, I
understand.	I do not wish to answer any

further questions or make any statement at

this present time. I will, however, tender

a written statement in due course if

necessary."?---That's his answer, yes.

The applicant gave evidence and at page 110 is the

version given by the applicant in connection with the

initial interview at 5. 30 on the morning after the

offence was alleged to have been committed and it is
a differing version from that which the police officer

gave to the court. At line 10, or thereabouts:

I said, "What was that for? What's that for?"

and he said he had a complaint from Muriel Rose Lawton

that I had sexual intercourse against her will or

something, and I just said, "Bullshit, that's

a lie".

And then he goes on with discussion relating to the

clothing. Now, in cross-examination, the Crown

prosecutor explored the relationship which the

applicant had had with Detective Flood. It appears

that, at some stage, the applicant had been employed

as an administrative officer by the Aboriginal Legal

Aid Service in Charleville and as a result of his job with the Legal Aid Service, he sat in quite a few interviews and he agreed with that. That is at line 40 on page 113, and the number of interviews

that he would have sat in on. Then at page 114 there

is a discussion that he had worked as a clerk to a

firm of solicitors in Brisbane. Then, if I could take

the Court to the bottom of page 114, line 50:

Before Detective Flood spoke to you, you

were well aware that you were under no

obligation to speak to him at all?---

That's correct, yeah. (Continued on page 6)

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Fraser
MR McMILLAN (continuing):

And in fact there was a record of interview in which you exercised that right that you had?--That's

correct, yeah.

Was there anything about this incident with

Lavina that you felt you wanted to hide from

Det. Flood?--No, there wasn't.

At the top of the next page:

As far as you were concerned it was all above board because she had given consent?--That's right.

So it was really a very simple matter to clear

up as far as you were concerned seeing everything

was above board?--Yeah, I suppose. As far as I

am concerned anyway, but-----

Yes. Just say if you understand this: and you

understand that when a suspect is questioned that

even though you do have that right not to speak

- and I am not critical of all, of course that you

exercised that right - it would have been a simple

matter-----

And defence counsel objects.

He has been warned and there is no obligation-----

His Honour then says:

Continue with the cross-examination, please.

Then the prosecutor continues the line of questioning
of what happened, initially, at 5.30 in the morning after

the event and then he discusses how he might have sobered

up in the meantime, at line 38:

You were given a warning - you were asked to come

to the police station; right?--Yes.

You volunteered to come to the police station; you

weren't dragged there?--No.

And then you said to Det. Flood that you did not

wish to speak to him, and that was your right to remain

silent?--That's correct, yeah.

Was your wife with you?--No.

You had the opportunity then, even though you had a

right to remain silent-----

Then there was a further objection to which His Honour

indicated that there was nothing objectionable and the

objection is overruled and the prosecutor.was invited

to continue cross-examining.	Then at the foot of
the·page:

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Fraser

But seeing that you considered that everything

was above board, why did yGu not give that

innocent explanation to Det. Flood then at

the police station on 27 February?--It was my understanding I was in no obligation to

answer questions. -

to which the prosecutor said:

That is exactly right?

If I could take the Court down to line 35 or

thereabouts:

(Continued on page 8)

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Fraser

MR McMILLAN (continuing):

And Det. Flood didn't say you had to make a

statement. He asked if you wanted to make a

statement?---He said to me I didn't have to

if I didn't want to.

Question:

Yes, that's what I am saying. Why didn't

you say then with all your experience in the

law - why didn't you say then there was an

innocent explanation and here it is - just

one sentence, three words, "I had her consent"?---

Well, I was going to make that available in the

statement.

That is the material - question and answer passage -

that I intend to take the Court to. The applicant

had given evidence of consent and that was his defence.

The jury were not directed at all in relation to that

passage of question and answer.

MASON CJ:	No direction was sought, was it?
MR McMILLAN:	And no redirection was sought. However, when the matter got to the Court of Criminal Appeal, the only
ground which was raised before that court was that the
trial judge was wrong in law when he allowed the Crown
prosecutor to cross-examine the accused, to exercise
his right not to answer questions of the police in
a record of interview about his failure to give an innocent explanation to the police of his sexual
conduct with the complainant.

Now, the reasons for judgment of the Court of

Criminal Appeal are found at record 166 onwards.

There had been other grounds which were disposed of

by the court but relevantly, to this matter, they

commence at 166 onwards and - - -

DEANE J: In one sense, the damage was done, was it not, when - - -

MR McMILLAN: It was completely done, Your Honour.

DEANE J: But, when the evidence of his refusal to participate

in a record of interview was led.

MR McMILLAN:  That is so. It was before the jury and - - -

DEANE J: Yes, and that was led without objection.

MR McMILLAN:	That was objected to on two occasions.
DEANE J:	No, I said in one sense the damage was done when the
evidence of his refusal to participate in a record of interview was led.

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Fraser

MR McMILLAN:  Yes, particularly when an objection had

been raised, Your Honour.

DEANE J: That was objected to, was it?

MR McMILLAN: That is so, at the passages I just read.

McHUGH J:  I think you are misunderstanding His Honour's

question.

MR McMILLAN:	Perhaps I am. Perhaps, Your Honour - - -
DEANE J:	What I said was in one sense the damage was done
when the evidence of his refusal to participate in a record of interview was led. That was not objected to, was it?
MR McMILLAN:	No.
DEANE J:	They are your problems, are they not?
MR McMILLAN:	Yes.
DEANE J:	One, that that evidence was not objected to;
and the second,that no direction or redirection
was sought in a context where we do not know
what was said in addresses to the jury and so on?
MR McMILLAN:	That is so. Yes, I have to meet that and

we will meet it later.

The Court of Criminal Appeal, in its reasons,

sets out the passages that I have taken the

Court to. Then, at page 170, it deals with the

ground in question:

Those who use it -

that is the "right to silence" terminology -

usually intend to refer to the rule applied

during trials that no adverse inference

should be drawn from an accused's failure

to answer police questions. In the context

of this particular trial, it was legitimate

for the Crown prosecutor to bring out the
fact that the accused had an opportunity
to make a statement on the occasion

indicated. He was also entitled to

examine - - -

McHUGH J:  I will just stop you there. His Honour said that

but he did not explain it. Why was it legitimate?

MR McMILLAN:  Why was it, Your Honour?

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Fraser
McHUGH J: Yes, why is it legitimate for the Crown prosecutor

to bring out the fact that he had an opportunity

to make it?

MR McMILLAN:	No doubt it was the Crown's case that he - - -
McHUGH J:	But what issue does it go to?
MR McMILLAN:	The issue would go to the opportunity that

he had - I am paraphrasing, no doubt,what the

Crown case would have been - an opportunity at

the time when was asked to give his version

response to the allegations and he did not do

so.

(Continued on page 11)

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Fraser

MR McMILLAN (continuing):  He relied on his right to silence.

Now he comes along to court and he gives his defence

as being one of consent.

McHUGH J: Well, what is the value of the right to silence if

you can draw an adverse inference in respect of a

particular aspect of your silence?

MR McMILLAN:  That is our case. It takes away the whole right

of silence. It is only mouthing the terminology if

you can take it away by this back door method that

was adopted by the prosecutor in this case.

DEANE J: Well then, the answer to His Honour's question must be

that you say that sentence is quite wrong, rather than

setting out to defend it.

MR McMILLAN:	Yes.
BRENNAN J:	It comes down to a question of whether or not the jury is entitled to draw an adverse inference from
silence which is absolutely claimed, that is,
that no questions were answered at all, when a
warning has been given.
MR McMILLAN:	Yes.

BRENNAN J: If, in the circumstances, a jury without any warning

might be minded to act upon the inference then, in

the ordinary course of human affairs,a person would

make a statement.

MR McMILLAN:  Yes. I will be taking the Court to a number of

authorities which deal with that very question. There

is a difference in approach by the New South Wales

Court of Appeal, the Victorian Court of Appeal and,

ultimately, the Full Court of the Federal Court in

KING.as to that very matter that Your Honour is

adverting to.

Now, in answer to Justice McHugh's point, the

Court of Criminal Appeal then went on, with no doubt,

the Crown's intent in asking those questions at line 20:

The Crown witness having said one thing
and the accused another, the Crown prosecutor

was entitled to examine the surrounding

circumstances including the sequence of

statements by the accused and of occasions when

he had the opportunity to make them. One point

that clearly emerges from the quoted passage

is that the accused's right to silence on the

relevant occasions was always conceded.

Another is that the accused did not shift in

maintaing that such a right was the basis of
his failure to give an account at that time.

The real question is whether the questioning

went further, and in particular whether it

may have have put in to the mind of the jury

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Fraser

the idea that an adverse inference could

be drawn against him because he had remained

silent on the specified occasion.

McHUGH J:  But that can be the only purpose of the

cross-examination?

MR McMILLAN:  That could be the only purpose, Your Honour.

That is so, Your Honour, with respect. Now that is

really, effectively, what the court spoke as respects

the ground that was raised in the appeal.	It then
went on and deals with the case of KING.	Now, KING

dealt with the direction that should be given by

the trial judge and so for the first time a question of a direction, or lack of it, is dealt with in this case and the Court of Criminal Appeal itself deals

with it in the following pages. I will not take

the Court to those passages at this stage. I intend to deal with the first proposed ground of appeal and

that is the accused's right of silence and was it

effectively destroyed following upon the questions

over objection by the prosecutor.

Now, one could go through a very interesting and

lengthy examination of how the right arose and perhaps

the best reference point is Wigmore's, Volume VIII at

page 266 onwards. In the historical outline the

learned author deals with how the matter evolved

firstly as a result of the concern which the common

law courts and the legislature, the House of Commons,

expressed about the Star Chamber and the Court of

High Commission's approached to the ex officio oath.

Cases such as LILBURN's and subsequently, the

TWELVE BISHOPS' case in 1641 brought this matter into

focus and, eventually through judgments by

Chief Justice Coke, it came to be and evolved that

there was a right to silence and that no person

was bound to imcriminate himself. The history

continued on, of course, until in so far as curial

examination was concerned, till approximately 1848

in England, when the magisterial examination of

persons brought before magistrates was disposed of in

legislation of that year.

(Continued on page 13)

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Fraser

MR McMILLAN (continuing):  In fact, the caution is ·still

present at the end of cormnittal proceedings when the

magistrate or cormnitting justices call upon the

accused to say anything in response to the charges

brought but he is not obliged to say anything.

BRENNAN J:	But you are notconcerned with that right, are you? You are concerned with that use of the right to
silence which has to do with pre-trial investigation?
MR McMILLAN:	That is so.
BRENNAN J:	I must confess, for myself, I am never sure what

is meant by 'right to silence' in that context. You are

wishing to put a particular complex on it now, are

you not? You would say that the right to silence
means that if a person does not answer questions after

being given a warning no inference adverse to him at

his trial can be drawn as a result?

MR McMILLAN: That, with respect, Your Honour, is a further

development in the law. One has to start with the

cardinal principle that there is such a thing as

right to silence and I will take the Court to a number

of authorities of this Court, amongst others, where that right is regarded as an enshrined right in the

liberty of the subject.

MASON CJ: Well, perhaps it would be useful to come to the cases

that you say are in point rather than talking in general

terms about history.

MR McMILLAN:  Yes. I respect what Your Honour is saying but .

I will not take the Court through Wigrriore, interesting

as it is, because it really just discusses how the

right evolved and that is not germane to the issues

in this case. The first passage is contained in

McDERMOTT V R, (1948) 76 CLR.

MASON CJ:  Before we go to these cases can you enunciate for

us the proposition that you are going to distill

out of it? What should we be looking for when we

read the passages to which you are going to refer us?

MR McMILLAN:  The principle which we would seek to press upon

the Court is that the right to silence being enshrined

as it is cannot be taken away in this method by

questioning by the Crown prosecutor, asking the
applicant why did he not give answers to the investigating

police officers when he had an opportunity to do so. We go further and say that that proposition has more

force, especially after a caution has been administered

by the investigating police officer himself.

McHUGH J: Well,are there two separate issues involved? Is

the question of opportunity to provide an answer before

yo~ get in the witness box, is that ever relevant

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Fraser

on your credibility? In other words, supposing

this man has just simply been arrested on a warrant

and not asked a single question, would it have been

open to the Crown to say, "The first time we ever

heard of this defence of consent was when he got in

the witness box." Would that be a relevant issue

at the trial?

MR McMILLAN: 

It would be a relevant issue and I would deal

with that at a later stage in the argument because
it really is a WOON point and there is material
in WOON itself which speaks about the question of

the right of silence.  So you have these two competing

points, the long-established right of silence and

the ability of the Crown to show opportunity and

perhaps it might even be, in some cases, recent

invention.  So they are two conflicting rights and

it would be our submission that when one deals with

the right to silence it is the paramount right

and it may be dealt with by an appropriate direction
which is, in a sense, another point altogether.

(Continued on page 15)

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Fraser
MR McMILLAN (continuing): But, getting back to the

invitation posed by the learned Chief Justice, that is the major proposition which we will be

arguing.

Cases such as McDERMOTT merely recognize the

right and indicate where the right arises from.

At page 513 of the report in McDERMOTT,

Justice Dixon had been discussing the history relating to the exclusion of confessions and, at

point 8 or so, he said:

It is apparent that a rule of practice

has arisen, deriving almost certainly from

the strong feeling for the widsom and

justice of the traditional English principle

expressed in the precept nemo tenetur si ipsum

accusare. It may be regarded as an extention
of the common law rule excluding voluntary

statements.

There, Justice Dixon sees it in this overall context

of that particular precept.

In CLELAND, the copy of which is included in

the folder handed up, Your Honours, the matter was

looked at by Justice Dawson at page 30 and, at
approximately half-way down that page, the learned

Judge says this:

The principle that no man is bound to

incriminate himself, which derived from the

canonist maxim nemo tenetur prodere seipsum,

had by the time of the INDICTABLE OFFENCES ACT,

1848, become established in English law,

generally it is said, as the result of a

feeling of revulsion against the procedures

of the Star Chamber and as the result of seventeenth century disputes between the

common law and ecclesiastical courts.	The
Act of 1848 thus provided that the justices

should caution accused persons that they

need not say anything in answer to the charge

unless they desired to do so. This statutory
provision against self-incrimination and the
underlying policy was not doubt reflected in

the attitude of the courts towards confessional

statements and the developmertaf the discretion to

exclude them. See McDERMOTT V THE KING.

The matter has also been touched upon by this

Court, again, in VAN DER MEER when Your Honour

the Chief Justice referred to the matter at page 661

in a general fashion.

BRENNAN J: What is the reference?

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Fraser

MR McMILLAN:  VAN DER MEER V REG, (1988) 62 ALJR 656 at 661.

His Honour was dealing with the interrogation of suspects and, at page 661, the left-hand column,

approximately between letter Band C is the

paragraph starting with:

In reaching the conclusion that there was no impropriety in the interrogation of the applicants the trial judge overlooked

the well-established constraints that apply

to the interrogation of suspects. The

common law balances (a) the need to allow

the police freedom of action in the investigation

of crime in order to ascertain the wrongdoer

and (b.) the need to ensure that a suspect is

fairly treated and his right to silence

protected. This balance is achieved by
permitting the police to conduct a general
inquiry into an unsolved crime until the
stage is reached when the accusatory stage

begins.

MASON CJ: Well, that has little to do with this case, though.

MR McMILLAN: No, but Your Honour has recognized the balancing

of the need to allow police freedom to investigate

against the need to assure that the suspect is

entitled to rely on his right.

(Continued on page 17)

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Fraser

MR McMILLAN (continuing): It is our submission that the

importance of the right of the suspected person

not to incriminate himself is firmly established

and implanted strong in the web of our criminal

law. And the approach adopted by the learned

trial judge, especially after silence was maintained,

following a caution, seems to suggest that a

person can subscribe to the right which has been

handed down over the years but throw away the

shield as soon as battle is adjoined. It is as

if the court is saying that the words of the

caution should be rephrased. You are warned

not to say anything as anything you do say will

be taken down and used in evidence but if you

do not say anything then your silence may also

be taken account of and also used in evidence.

MASON CJ:	But should you not be dealing with the cases in which there has been some recognition of a right to cross-examine in these circumstances and dealing with what the appropriate limits
are in relation to cases of that kind?
MR McMILLAN:	Yes, Your Honours, I am taking the Court

now to the cases which I referred to earlier

in New South Wales and Victoria, leading up to

the case of KING. The first case I wish to take

the Court to is that of McNAMARA. It is

RV McNAMARA, (1987) VR 855. That was a case

which was decided in 1976. It reviewed a number

of the English authorities and if I could take the Court to page 863 in the joint judgment of the court - this is at line 9 or thereabouts:

The whole of the interrogation of the

applicant by Halloran -

a detective -

on 6 May 1975, has already been set out.

It will have been seen that at the outset

of the interrogation Halloran told the

applicant in substance that he did not have

to answer any questions if he did not want

to. Although the applicant answered the

majority of the questions put to him by some 10 questions which the applicant refused to answer, or as to which he made statements which amounted to a refusal to

answer: for example, "No comment." It is

well established that the jury would not
have been entitled to draw any inference

in support of the applicant's guilt from

his refusal to answer those questions, and

that by themselves those questions were

irrelevant.

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Fraser

He looks at a number of authorities and then

joins:

It is unnecessary to consider the question

whether this would still have been the

position, even if Halloran had not warned

the applicant that he did not have to

answer any questions -

and looks at a number of competing authorities

in England, one from the Privy Council in the

matter of HALL.

Then the court went on to look at the effect

of such authorities as CHRISTIE and GRILLS and at page 870 onwards it deals with the issue in

greater depth. At line 25 on page 870:

As we have earlier emphasized, it is

very well established that an accused person's

refusal to answer police questions, after

he has been warned of his right to remain

silent, cannot be used against him as any

proof of his guilt. But it is also well

established that if the accused person later

gives evidence at the trial and tells a

story not previously disclosed to the police,

then it is perfectly proper for the Crown

prosecutor, and also for the trial judge,

to point out to the jury that in considering

the credibility of the accused's story they
may take into account the fact that he did

not choose to tell the story to the police

at any earlier time.

(Continued on page 19)

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Fraser

MR McMILLAN:  Refers to LITTLEBOY, FOSTER and BOUQUET.

It also appears to be established that cross-examination of the accused in general terms as to why he did not tell his story

on some earlier occasion is permissible -

refers to LITTLEBOYS.

The authorities to which we have just referred proceed on the footing that there is a

"distinction between reliance on silence as

evidence against the accused, and reliance

on it by way of answer to or comment upon
a defence raised for the first time by

evidence given at the trial".

MASON CJ:  Do you accept those sentences that you have

just read to us?

MR McMILLAN:  No, Your Honour, I do not. We do not do that.

He then refers to several other authorities:

It may be that for like reasons the

second and third categories of cross-examination

were also proper, that is on the footing that

it was permissible to cross-examine the applicant
about his refusal to answer questions put to

him by Halloran, as a means of testing the

credibility of his story.

If I take the Court then to the passage at page 871,

at approximately line 17:

But we wish to say at this point that even

if cross-examination falling within the second

or third categories now under consideration

is technically permissible, nevertheless in

very many cases it would, in our opinion, be
proper for the trial Judge, in the exercise

of his discretion, to disallow it on

the basis that it would have an element of

unfair prejudice having regard to the caution
given to the accused, and on the basis that
cross-examination of a type falling within
the first category would be sufficient for

the purposes of the Crown -

Refers to WHITE's case.

In point of time the court in Victoria

dealt with the matter in SALAHATTIN, (1983) VR 521.

From the bottom of page 5?.6 onwards I take the

Court to several passages.	At approximately line 50
on page 526:

C2Tl2/l/JM	19	7/4/89
Fraser

The exclusion, on the supposition that a

suspect is relying on his corrnnon law liberty

to refuse to answer questions of an incriminating

nature, of evidence of a failure on the part

of that suspect to deny imputations put
to him by a police officer in the course of

police interrogation, does not necessarily

entail the consequence that evidence is

never admissible of the failure of one
suspect to deny an accuation or allegation made
against him, in his presence and hearing, by

another suspect in the course of interrogation -

dealing with a different point there. The passage

I will take the Court to is at page 528, because it

deals with silence following a warning. At line 22:

If the allegation is made to the person

who has been expressly warned that he is
not obliged to make any answer and who

thereafter pursues a policy of silence, it

would not be reasonable - because it might

be unfair - to treat his silence, his failure

to deny that allegation, as founding an

inference that he is thereby admitting the

truth of the allegation -

refers to TWIST.

A different conclusion has however on occasions

been drawn from a failure to deny the allegation

where the person so warned has not remained

silent but has elected to talk selectively.

MASON CJ:	Do you accept that sentence?
MR McMILLAN:	Yes, that is accepted. Deals with the proposition

arising out of IRELAND's case:

Even in such a case the question may arise

whether it is proper to draw an inference

adverse to the person questioned.

Of course, in all maters where the WOON point arises it depends on the circumstances of the individual case.

A matter which obviously becomes relevant

in the instant case is whether the interrogation

by the police was being conducted in such a

manner as to have made it reasonable for

the applicant to have believed that an answer
was required of or would be accepted from that
person only to whom the questioning was, for

the time being, directed.

C2Tl2/2/JM	20	7/4/89
Fraser

MR McMILLAN (continuing):  The case of PHILLIP BRUCE,

(1986) 23 A Crim R 123, which is referred to by the

Court of Criminal Appeal, needs next to be looked at.

DEANE J:  Mr McMillan, in this case where Detective Flood had

given evidence that your client said he had never touched the girl, would you argue that it was not

open to the Crown to cross-examine your client on

the basis that he had never suggested until he gave

his evidence that the girl had consented?

MR McMILLAN:  I do not believe that we could submit that. That

is a different matter, with respect.

DEANE J:  Well, if that is so - and I was not suggesting to you

it was so, but if that is so this case comes into

a very narrow compass, does it not?

MR McMILLAN:	It does indeed.
DEANE J:	What you are saying is it was open to the Crown to

make the point that if Detective Flood was accepted,

he had given a different account and had never

suggested consent, that it was not open to the Crown
to rely on his refusal to participate in a record

of interview specifically?

MR McMILLAN: That would be our submission, yes.

DEANE J: Well, I do not want to be over-repetitive but that

brings me straight back to the problem that the evidence of the refusal to participate in the record of interview

was led without objection and no request was made for

a direction?

MR McMILLAN:  No, that is right, those stare us fairly and

squarely in the face.

MASON CJ: What answer do you have to them? You indicated you

were going to deal with them later, Mr McMillan. Perhaps it might be appropriate to deal with the difficulties now.

MR McMILLAN:	Well, on the question of no direction having been sought this Court has limited those appeals which it
will deal with where there has been no request for a redirection but has in other cases indicate~where
such matters and they are brought out in such cases injustice would arise, that it is prepared to deal with
as KURAL and the case of DE JESUS V REG; it is
mentioned fairly and squarely there. It is our submission that the injustice here which we will invite
the Court to embark upon in considering the appeal, is that the Court of Criminal Appeal dealt with the matter initially itself without the ground being
raised and has dealt with it at length. If the
Co~rt of Criminal Appeal decision of Queensland is

C2Tl3/l/MB	21	7/4/89
Fraser

allowed to stand then persons in Queenslartd - and it

is not uncommon to have this situation arise in trials -

will be faced with having to ask the Court of Criminal

Appeal at some stage to look again at the matter
if there is further developments arising out of the

decision in KING in the Full Court of the Federal

Court, and it is appropriate when the matter comes

before this Court for this Court to lay down, for
the whole of Australia, that the matter should be finally

put at rest. It would be our submission that the

direction which should be given should follow that

in KING's case.

DEANE J:  But that would not help your client much, would it,

if the view were taken that in a context where we

do not know what was said in addresses it is impossible

in the absence of a request for a direction and in

the absence of any objection to the evidence of this

specific occasion of silence to really know whether

there was any need for a direction?

(Continued on page 23)

C2Tl3/2/MB	22	7/4/89
Fraser

Mr McMILLAN: Well, our response to that, Your Honour, would

be that it speaks for itself; that the courts over

the years have been quite concerned to see that

proper directions are given because of the perceived

fear that juries will, in circumstances such as this,
draw an adverse inference from the failure to speak

after the caution has been given and, that being so,

injustice, as it were, is present. Now, we never

see in Queensland what is the basis of counsel's

addresses but one could deduce that the matter was

not at large because the learned trial judge did not

refer to it in his summing up. So the jury were

left, as it were, with this point in mid air and

could well have used it to determine guilt and, on

that basis,our submission is that injustice is

available and this Court should therefore venture

into the field and deal with the matter, grasp the

nettle.- the opportunity may not arise for some time -

should grasp the nettle and decide once and for all.

we would submit,that a direction should be given

in all cases.

DEANE J:  I do not want to delay you unduly, Mr McMillan, but

can I put yet another problem I have on this aspect

of it, and that is this: in a case where the

Crown is relying on a contrary story and subsequent silence about what is now put as a defence, the
defence may very well want to have the evidence that

the Crown warned the accused that he need not answer

any questions and after that warning, he remained

silent. Well now, that is why I keep coming back to

the absence of an objection and, if there is anything

further you would like to say in that regard, I

would be grateful for it.

MR McMILLAN:  Yes. Well, one must still talk hypothetically,

unfortunately, Your Honour, and it would be this:

that defence counsel may have seen that as a valuable

point in favour of the accused and he may well have

addressed the jury on that point. But the trial

judge, unfortunately, did not deal with the matter.

So it is one thing for counsel to address on the

point but it is certainly another thing for the

presiding judge to refer to the matter. The direction,

we would submit, should have been given in line with

KING was, "You heard that a caution was administered; you heard that the accused relied on it and remained

silent.	Now, therefore, I am warning you that you
must consider that.	He is not obliged to saying and

you should bear that in mind." A typical warning.

Now, that is how the trial could have been conducted

but we do not know and one never knows with the
way trials are conducted in Queensland because

counsel's addresses are not taken down.

BRENNAN J:	Mr McMillan, in SALAHATTIN's case, a passage is cited from the speech - or from the advice of Lord Diplock -
in HALL V REG, at page 526 of SALAHATTIN. Now, in
that, Lord Diplock said that:

C2Tl4/l/VH	23	7/4/89
Fraser

It may be that in very exceptional circumstances

an inference may be drawn from a failure to

give an explanation or disclaimer, but in their Lordships' view, silence alone on being informed

by a police officer that someone else has made

an accusation against him cannot give rise to

an inference -

et cetera.

(Continued on page 25)

C2Tl4/2/VH	24	7/4/89
Fraser

"MR McMII.LAN:  Yes .

BRENNAN J: Now, what do you say about that? Is that a line

of country which you are advocating here?

MR McMILLAN:  It is a line of country we are travelling in,

yes, Your Honour.

BRENNAN J: Well, now, if it is, it seems that that speech of

Lord Diplock has attracted some adverse criticism

in England and I am referring to REG V CHANDLER,

(19 7 6 ) 3 Al 1 ER.

MR McMILLAN:  Yes.

BRENNAN J: Have you had regard to that case?

MR McMILLAN:  Yes.

BRENNAN J: And, in that case, it seems that the Court of

Appeal thought that perhaps the better view was that

which was to be derived from CHRISTIE's case and

that CHRISTIE's case bound the Court of Appeal but

HALL's case did not because it was Privy Council.

MR McMILLAN: It is a Privy Council decision, yes.

BRENNAN J:	Now, what do you ha.veto say about this controversy?
MR McMILLAN:	That there is a genuine disagreement in England

and the English courts have elected not to follow the

decision in HALL and have elected to follow cases

such as CHANDLER. The most recent decision, as I

understand it, is a case of RAVIRAJ, some two years

ago in which - - -

MASON CJ: What is the reference to it?

MR McMILLAN:	I will turn that up - let my junior turn it up.
BRENNAN J: It seems to be 85 Cr App R 93, is it?
MR McMILLAN:	RAVIRAJ, (1987) 85 Cr App R 93.

BRENNAN J: Well, now, the basic problem is what evidential

use can be made out of silence in circumstances such

as the present.

MR McMILLAN:	That is so.
BRENNAN J:	I mean, if there was no cross-examination at all,

could the jury have drawn an inference from the silence

in this case which was adverse to him?

MR McMILLAN: Well, perhaps the answer to that, Your Honour, is

found in one of the English authorities that, without
such a direction, a jury may well apply their ordinary

co.mmon sense and say, "Here is a man who had an

C2Tl5/1/SH	25	7/4/89
Fraser

opportunity to speak out. He did not speak out and,

therefore, we can take that into account when assessing
the evidence in the case" and it would be our submission

that that would be open to this jury, like any other
jury, to form its approach and that it needed a clear

direction, that a man is entitled to rely on what the

police have put to him by way of the caution.

BRENNAN J: Let me understand it: are you saying that itwas open

to this jury that, if there had been no cross-examination,

this jury could have approached the evidence in that way?

MR McMILLAN:	Yes, because there was no direction directing them how they should approach it in accordance with authority.
BRENNAN J:	Was it legitimate for them to approach it in that

way?

MR McMILLAN: Well, in our submission, no.

BRENNAN J:	No.
MR McMILLAN:	It was not legitimate but we do not know and that

is the basis of many of the directions that courts have

laid down to juries, especially in a case such as this.

McHUGH J: What do you say about these questions to which

Mr Copley objected? Were they admissible questions or were they inadmissible questions?

MR McMILLAN: Well, in our submission, they were not admissible

questions. They should not have been because, reverting

to what we said earlier, it is all very well to express

a right and to concede the right, as the Crown

prosecutor did and the Court of Criminal Appeal
enunciated but that is only paying lip service to the
right, if the prosecutor can demolish it with a
fusillade from the rear. In fact, it is a non-existent

righc. It evaporates as soon as it is enunciated.

(Continued on page 27)

C2Tl5/2/SH 26 7/4/89

Fraser
DEANE J: But, if that is so, do you not have to go further

than you have gone and say that, after the warning

is given, no reliance at all can be placed on

silence to the police or the investigating officers

as distinct from silence to other people?

MR McMILLAN:	That is so, yes.
DEANE J:	I mean, it would be legitimate to cross-examine
him on the basis that this was the first occasion
he had ever suggested to anyone at all that the girl had consented because he could answer that
by saying, "No, that is not true.  I told X;
I told Y;  I told Z".

MR McMILLAN:  Yes. But the question was never put. The

Crown prosecutor never took the advantage of cross-

examining him on the initial comment made at 5.30

on the morning after the events. He relied, instead,

on this, we would submit, wrongful form of questioning.

McHUGH J: This is the whole heart of the case, is it not,

that, on your argument, the right to silence requires

as a corollary proposition that no inference

of any sort can be drawn from the right to silence?

MR McMILLAN:  That is so. Whilst the courts recognize a

right to silence - and there is absolutely no
doubt about that and that is why I was embarking

on that wearisome task earlier - there is just no argument, no doubt at all, there is such a

thing as the right of silence. While that is

recognized then the proposition Your Honour has

just put to us must stand.

l'!eHUGH J: Yes,

MR McMILLAN:	Yes, the case of RAVIRAJ does follow the line that CHRISTIE and CHANDLER should be followed
in lieu of HALL.  Of course, it is complicated
as well, is RAVIRAJ, by the fact that it was
a case where the Crown could rely on the doctrine
of recent possession and this Court, some two
years ago dealt with that in BRUCE, and quite

,properly enunciated that that was an exception

to the rule that there is a right to silence.

If I could take the Court to KING, because

KING picks up on many of these authorities and

goes through it in detail. It is reported at

(1986) 22 A Crim R 153. That case involved an

appeal on convictions in respect of a number of

offences and it is necessary to take a quick look

at the facts and I take the Court to page 156.

It was a joint judgment of the Court consisting

of Justices Sheppard, Neaves and Spender.

C2Tl 6/ 1 /SDL-	27	7/4/89
Fraser

At approximately half-way down that page

is a reference to the interview and it was led

in evidence without objection.	The police officer
said:

I am going to ask you some questions in

relation to an assault which took place at

a house in Narrabundah ..... Can you tell me

anything about it?" He said, "No comment,

Chief." I said, "I still intend to ask you some questions in relation to the incident.

However, before I do I must warn you you

are not obliged to say anything or answer

any questions as anything you do say will

be taken down in writing and may be used

in evidence. Do you clearly understand that?"

(Continued on page 29)

C2T16/2/SDL-	28	7/4/89
Fraser
MR McMILLAN (continuing):

The accused made no answer.	I said, 'What
is your full name?'

Then there is a series of questions and answers.

The learned trial judge is reported, at

page 157, with what he told the jury to have

regard to in relation to that investigation and

interview.	At approximately one-third of the
way down:

"Of course, you have to take account also

of the investigation of the matter by police

officers. You will remember the evidence

of Constable Cannon that he gave the accused

the opportunity to explain his whereabouts 1 No

..... He said, comment ...... '

You will remember the rest of that

conversation. Generally it was a case of

'no comment' -

and then, thirdly, two-thirds of the way down:

His Honour then returned to the alibi and

said:

'I just stress again that the onus is on

the Crown to establish that it was the

accused that did these things; the onus

is not on the accused to establish his alibi.

But it is a dangerous course for an accused

to take, you may think, in a criminal trial,

to say 'it wasn't me' -

The Court, in looking at that direction, said

this at page 158, in the paragraph commencing

about two-thirds of the way down:

In our opinion what his Honour said,

when reminding the jury of what was said

by the appellant to Constable Cannon, did

reflect adversely upon the appellant and

his case. It tended to discredit the alibi

upon which he relied. The starting point

was his Honour's statement earlier quoted

that the Constable "gave the accused the

opportunity to explain his whereabouts ... ".

And then, some five or six lines down further:

In our view, his Honour's words would have

conveyed to a reasonable listener the

impression that an innocent person would

C2Tl 7 /1 /ND	29	7/4/89
Fraser

have willingly answered the questions and

given the Constable an account of his

movements at the critical time. The failure

by the appellant to take the opportunity

offered him was, at least by implication,

put as a matter which the jury could rely

upon adversely to the appellant when

considering the question of his guilt.

The position may have been different i

it had not been for his Honour's refere ,=e

to the appellant being offered an
opportunity to explain his whereabouts.

But that introduction to the subject of

the interview affected the whole of what

followed. It follows that the submission

made by counsel for the appellant that his

Honour's remarks concerning the interview

reflected adversely upon the appellant's

case must be upheld.

Then the court looked at depth into the case of GILBERT which was a decision of the Court of Criminal Appeal in England. That is at

page 159. That case, in itself, exhaustively

reviewed the relevant authorities. Then the

court starts to look at several interstate decisions.

I will not take the Court to those decisions

individually because the relevant extracts are

set out in this judgment. After referring to

what was said by the Court in WOON, it deals

with the New South Wales decision in BOUQUET

and over on page 161 - - -

McHUGH J:  In that passage from Mr Justice Sugerman's

judgment in BOUQUET, His Honour seems to have

said:

" ..... The setting up of a defence of alibi

for the first time at the trial does ·not open

the door to corrment upon the failure of the accused

to make earlier disclosure or explanation

of a kind which is contrary to this rule

and the reasoning upon which it rests."

MR McMILLAN:  Yes, that was said and certainly has never

been doubted upon in subsequent decisions of

the court in New South Wales.

McHUGH J:  In fact, in New South Wales, now, they have got a special statutory rule that the accused has got to give notice of his alibi.

MR McMILLAN:  That is so, Your Honour. Of interest, of

course, is what Mr Justice Wallace said at the

top of page 161, the extract of his judgment:

C2T 17 /2/ND	30	7/4/89
Fraser

Otherwise why have the English judges

ruled that it ought to be given?

That is the caution.

If silence is to be commented upon then
in the interests of fairness and frankness

the warning should be extended as follows:

'You are not required by law to say anything

at all but if you don't, then your silence

will be used as an argument against your

innocence at your trial' ... "

He says it better than what we said earlier.

(Continued on page 32)

C2T17/3/ND	31	7/4/89
Fraser

MR McMILLAN (continuing):  Now, taking the Court towards

the foot of that page, 161:

So far as we are aware the most recent decision

of the Court of Criminal Appeal (Vic) is that

of BELJAJEV (1984) VR 657. There the court

was comprised of Starke, Murphy and Hampel JJ.
In the courseof his judgment Starke J said that
no failure to give an innocent explanation

after caution can be used as to an accused's

credit or otherwise, and the jury must be so

directed.

Now, that case of BELJAJEV was doubted in the subsequent

decision in the Court of Criminal Appeal in BRUCE.

Continuing with the case of KING, at the top of page

162, the court detects the difference in approach

between New South Wales and Victoria. It says:

But in a sense the distinction between the

two approaches is a fine one. In New South

Wales there will be cases in which a specific

direction is not required. On the other hand,

the view expressed by Starke J would require

a direction in every case.

Subject to what may eventually be said by

ultimate courts of appeal, the Court of Appeal in

England and the Courts of Criminal Appeal in

New South Wales and Victoria have each laid

downthe .practice to be adopted by judges in

their respective jurisdictions. None of the

decisions of these courts is binding on this Court,
but each is highly persuasive of what we
should decide the position to be in the

Australian Capital Territory. So far as we are

aware the only decision of the High Court which

deals with the problem is WOON's case and then

only in the dictum quoted from Kitto J's

judgment. Kitto J's statement is relevant

and helpful, but it is by no means determinative

of the question which is to be decided.

Then there is this passage which was not followed

expressly in the Court of Criminal Appeal in Queensland.

We are of opinion that a specific direction should

be given.in every case. Where, as here, evidence

is admitted of answers to a police officer's

questions which make no admission and do not suggest

a consciousness of guilt (cf WOON's case), the

very existence of the evidence, without any

connnent by the judge, may mislead the jury into
thinking that they may use the accused's failure

to answer the questions or disclose his

whereabouts adversely to him. The only way to

avoid possible misunderstanding is to tell

C2Tl8/l/MB	32	7/4/89
Fraser

the jury in clear terms that they must not

use the failure of the accused to respond to

a police officer's questions adversely to him.

They deal with the earlier cases in England, TUNE, for example.

It was held sufficient (and thus appropriate)

simply to read the account of the interview

given in evidence. In our opinion, there is a

danger that a jury, if it is not cautioned against

doing so, will itself conclude that guilt may

be inferred by the failure of an accused person to

answer questtons asked by a police officer. In

the light of GILBERT, we think there is a question

whether cases such as TUNE's case would now be

followed in the United Kingdom.

MASON CJ:  I notice they then go on to express doubt about the

admissibility of the evidence, as to the interrogation?

MR McMILLAN:	Yes, that is so, Your Honour.
MASON CJ:	Which was not objected to.

MR McMILLAN:  No. The court then deals with counsel's failure

to deal with matters, decides that it is a matter of

injustice would be perpetrated and proceeds to deal

with the matter and allows the appeals in part.	Now,
turning to the actual decision in this matter, at
page 170 onwards, particularly at 171, the court

at line 22 or thereabouts said as follows - this is

Justice Thomas speaking:

I would respectfully agree that whenever it is reasonably open to consider that a jury may

suffer such a misunderstanding, the jury should

be told in clear terms that they must not use

the failure of the accused to respond to a

police officer's questions adversely to him. (Continued on page 34)

C2Tl8/2/MB	33	7/4/89
Fraser

MR McMILLAN (continuing):

Sometimes a judge will find it desirable

during a criminal trial to instruct the
jury against drawing an adverse inference

at the time when the evidence is led.

Sometimes, especially when the Crown

prosecutor has said something during his

address which may have carried a possible

imputation against the accused by reason of his not having answered questions, he

will say something in the course of his

summing up. On other occasions, although

there may have been a refusal to answer
questions, the point really is not in

issue and no special attention needs to be

drawn to it.

To my mind, the difficulty lies not

so much in the nature of the warning to be

given, but in identifying the occasions

when it is necessary to do so. I am unable

to agree that "a specific direction should

be given in every case" -

that is the point of departure with the decision

in KING. Half-=way down that page there is a

quotation from BRUCE.

MASON CJ:	You have read that passage to us.
MR McMILLAN:	Yes, but that really is from McNAMARA: it

is not from BRUCE, but nothing turns on that.

MASON CJ: Yes.

MR McMILLAN:	One interesting feature, if I could take the Court to it in BRUCE, (1986) 23 A Crim R 123.
At page 135 His Honour stops short, but at
page 136 the court in Victoria, after discussing what
half-way down:
Justice Windeyer said in WOON, said this, about

In my opinion, silence can never amount to an admission if the silence is occasiond by the conscious exercise of a known right

to remain silent, whether the suspect has

been told of his right or not. When Windeyer J

speaks of silence before a warning being

capable of amounting to an admission, he must

mean a silence which is maintained in

ignorance of the right to silence or, at

least not in exercise of the right. Otherwise

the right is nugatory unless and until a

caution is administered.

Then this paragraph:

C2Tl9/l/JM	34	7/4/89
Fraser

Nevertheless, evidence of the giving of a caution may affect the weight of ·any

inference to be drawn from silence and

may bring into play the exercise of the

judicial discretion to forbid the drawing

of an inference.

Then, at the top of page 173 in the judgment of

Justice Thomas in this matter he says this:

In the present case it would have been

possible for the trial Judge to have reminded
the jury, whilst the cross-examination

was proceeding, that no adverse inference

should be drawn against the accused because

of his failure to answer further questions.

But to have done so would in this instance

have been otiose. The existence of the

so-called right was common ground. It was

asserted at the outset of the questioning,

repeatedly referred to and actually stressed.

compel him to do so. He changes his story. In relation

to that we would also refer to what was said by

His Honour Mr Justice Thomas at page 173 of the record, connnencing at line 35. It is only a short

passage and I shall read it:

It was not suggested that this passage played any

further part in the trial.

That is that passage at page 115, Your Honours.

There is no suggestion that it was referred to in

the address or that it was ever raised again.

McHUGH J:	Did Mr Copley appear in the Court of Criminal Appeal?
MR STURGESS:	It was not Mr Copley, Your Honour. The public

defender instructed at the trial and at the appeal,

Your Honour. Reading on now:

No request was made by experienced defence

counsel who represented the appellant at trial

for any direction or redirection on such a

point. Mr Nase for the Crown points out that

there is no suggestion of misdirection, and that at

most the submission is of a non-direction.

It is difficult to resist the conclusion that

this was not a true issue at the trial and was

not considered by those who understood the
issues and the atmosphere of the trial as requiring
direction or even adversion.

Now, it would be then a classic case for the application of the proviso, we would submit. Your Honours,

there is nothing further we wish to submit unless

Your Honours wish to direct our attention to some

particular point that has escaped our attention.

MASON CJ:  Thank you, Mr Sturgess. Yes, Mr McMillan.

MR McMILLAN:  Your Honours, if I might briefly refer to two

matters. Our learned friend referred to the case

of FOSTER in the New Zealand Court of Appeal. There

is a later decision of the RV COOMBS, (1983) NZLR 748

which deals with this question in more detail.

At 751 onwards it will be seen the factual basis

of that case. There had been questioning of the

accused.	He had been given a caution and he maintained
silence after that caution.	The trial judge, sununing
up about it, said at line 25:

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There is conflict between the accused and

Mr Hitchcock as to whether the accused gave

an address, or whether he merely gave
his name, and then declined to answer questions
about whether it was his bedroom. But I suggest

that is a slight basis on which to place much

weight, and of course the Courts have always
faced away from the proposition than an

accused is to be criticised simply for

maintaining silence.

Then at line 36 they discuss what the New Zealand case law is, that:

there are three relevant principles. First, in general a suspect has a right to silence under

interrogation by police ..... whether before or

after caution. This is elementary. Secondly,

while a Judge may properly comment upon the

fact that an explanation has been given for the

first time at the trial, such observations

have to be made with care and fairness to the

accused in all the circumstances of the case - and RYAN's case is cited -

Thirdly, while occasionally the accused's silence

when confronted with an allegation may amount

to evidence of acceptance of it by him, this is

exceptional - and especially so when the allegation

has been made by or in the presence of a police

officer or other investigating authority.

At page 752 they deal with the question finally at

line 20:

We think that the present case called for an express and emphatic direction that the accused

had a right to silence. His request to see

the warrant showed that he was a person conscious

of his rights.

Then at line 25:

we can only regard as unfortunate the attempt

by the prosecution to make something of his

refusal to answer questions at the police station,

after having been earlier arrested and cautioned

at the house.

Our learned friend referred to the unreported decision of the Court of Criminal Appeal of Queensland in WINLAW,

delivered on 17 November last. Now, in that case there

had been a specific direction given by the trial judge

to the jury and looking at the judgment of the Chief Justice

at page 7 of the unreported reasons, two-thirds of the

wa~ down the page:

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MR McMILLAN (continuing):

The learned trial Judge in his summing up

referred to "Right of silence" which had

been the subject of addresses by counsel.

He then went on to say: -

"No person is obliged to incriminate himself by his answers to police officers,

and if it be that the accused on this

occasion was exercising, or believed he

was exercising his right to silence, well,

then, it would be wrong for you to draw

any adverse inference from the fact

that he didn't offer any explanation.

The applicant here did not get the benefit of

any direction at all, let alone the benefit of

that direction. Those are our submissions.

MASON CJ: Yes, thank you, Mr McMillan. The Court will

stand this matter down until 2.15 pm.

AT 12.35 PM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

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UPON RESUMING AT 2.24 PM:

MASON CJ:  In this case the applicant relies upon the

general rule that it is not permissible to draw

against an accused person an adverse inference

from his silence on an occasion when he was

warned that he was not obliged to speak.

The applicant seeks to raise two questions:

the first is whether it is permissible to regard

a version of the facts given by an accused person

at his trial as less credit worthy because of

such earlier silence; the second is whether it

is mandatory that a direction in terms of that

general rule be given in every case where

evidence of such silence has been led.

Those are important questions but, having

regard to the particular facts of this case,
the course of the proceedings and the absence
of any request to the trial judge for an

appropriate direction, it is doubtful whether

those issues truly arose at the trial. Although

an objection was taken to questions regarding

his silence, asked in cross-examination of the

accused, the absence of an appropriate direction

and of any request for such a direction suggests

that in a strong prosecution case the issues

which are now sought to be raised were not regarded

at the trial as issues of real significance.

In the circumstances, it appears to us that

if special leave were granted the appeal would

fail. Special leave should therefore be refused.

The order of the Court is that the application

for special leave to appeal is refused.

AT 2.26 PM THE MATTER WAS ADJOURNED SINE DIE

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