Harris v the Queen
[1988] TASSC 26
•22 April 1988
[1988] TASSC 26
CITATION: Harris v The Queen [1988] TASSC 26; (1988) Tas R 31; A12/1988
PARTIES: HARRIS, Mark Anthony
v
THE QUEEN
TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION: APPELLATE
FILE NO/S: CCA 88/1987
DELIVERED ON: 22 April 1988
JUDGMENT OF: Green CJ, Cosgrove and Cox JJ
Judgment Number: A12/1988
Number of paragraphs: 57
Serial No 12/1988
File No CCA 88/1987
MARK ANTHONY HARRIS v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
GREEN CJ (Dissenting)
COSGROVE J
COX J
22 April 1988
ORDER OF THE COURT
Appeal dismissed.
Serial No 12/1988
File No CCA 88/1987
MARK ANTHONY HARRIS v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
GREEN CJ
22 April 1988
I have had the advantage of reading the reasons for judgment prepared by Cox J, and I adopt his statement of the issues and the salient facts. For the reasons which Cox J gives I agree that no inference of guilt and no inference which has the effect of impugning the credit of an accused person may be drawn from his failure to give an innocent explanation after he has been warned and that therefore the comments made by the learned trial judge in this case constituted a misdirection.
I should record however that I do not wish to express any view about the position in cases where no warning has been given, nor do I necessarily agree with the suggestion which seems to be implicit in proposition (c) of the propositions advanced by Starke J in R. v Beljajev [1984] VR 657 at 662 that in every case "the jury must be directed" in accordance with the proposition with which I have expressed my agreement above. Whether it is appropriate to give such a direction is a matter for the trial judge and there may be cases in which it would be preferable from the accused's point of view if the trial judge were to say nothing about the matter.
I also agree that the learned trial judge did not fall into error in granting leave to the Crown to cross–examine the appellant as to his previous convictions. The requisite conditions had been met and there was no defect in the way in which he exercised his discretion.
I turn to the issue of whether I am satisfied that the appeal should be dismissed on the ground that notwithstanding the misdirection, no substantial miscarriage of justice has actually occurred. In a joint judgment in Wilde v The Queen (8 February 1988) Brennan J, Dawson J, and Toohey J, restated the effect of the authorities which guide appellate courts as to the application of the proviso in these terms:
"... where there has been a departure from the requirements of a properly conducted trial, it cannot be said that there has been no substantial miscarriage of justice if the applicant has thereby lost 'a chance which was fairly open to him of being acquitted' to use the phrase of Fullagar J in Mraz v The Queen (1955) 93 CLR 493, at p514 or 'a real chance of acquittal' to use the phrase of Barwick CJ in Reg v Storey (1978) 140 CLR 364, at p376. Unless it can be said that, had there been no blemish in the trial, an appropriately instructed jury, acting reasonably on the evidence properly before them and applying the correct onus and standard of proof, would inevitably have convicted the accused, the conviction must be set aside: see Driscoll v the Queen (1977) 137 CLR 517, at p524; Reg v Storey, at p376; Gallagher v The Queen (1986) 160 CLR 392, at pp412 – 413. Unless that can be said, the accused may have lost a fair chance of acquittal by the failure to afford him the trial to which he was entitled, that is to say, a trial in which the relevant law was correctly explained to the jury and the rules of procedure and evidence were strictly followed: see Mraz v The Queen, at p514. The loss of such a chance of acquittal cannot be anything but a substantial miscarriage of justice. The question whether the jury would inevitably have convicted falls to be determined by the Court of Criminal Appeal. It is a question which the Court of Criminal Appeal must answer according to its assessment of the facts of the case."
In this case the trial judge's comments related to a part of the appellant's evidence which, if accepted, would have rebutted adverse inferences which could otherwise have been drawn from the fact of his presence in the vicinity of 90 Ravenswood Road and from his possession of the cigarette box, the scales and weights, the bags containing traces of heroin and the cash. There was other evidence of the appellant's guilt, but it comprised in part circumstantial evidence which was equivocal together with evidence of verbal admissions attributed to the appellant, which he denied making and which the jury might or might not have accepted. Thus the effect of the learned trial judge's direction was to invite the jury to have regard to a fact to which they were not entitled to have regard when they were considering what weight to give to the appellant's evidence about what the jury might have regarded were critically significant parts of the Crown case.
It may be assumed, or at least regarded as highly probable that the jury rejected Wilson's evidence. But that conclusion does not necessarily lead to the conclusion that the jury must thereby have been rejecting the explanation advanced by the defence per se: the jury might simply have formed an unfavourable view of Wilson personally as a witness. The possibility cannot be rejected that the jury's rejection of the defence explanation was determined solely by their assessment of the credibility of the appellant as a witness.
It is also possible that the jury looked at the defence case globally and that their determination of the question of what reliance they placed on Wilson's evidence might have been influenced by their assessment of the credibility of the appellant. The likelihood of that having occurred would have been increased by the suggestion made by counsel for the Crown that Wilson and the appellant had concocted the story about going to Ravenswood Road with Big John and by the trial judge's global references in his summing–up to, "the defence evidence" and the "accounts" given by the Crown on the one hand and the defence on the other.
For the foregoing reasons I am unable to conclude that had the direction not been given the jury would have rejected the appellant's evidence anyway and would inevitably have convicted him.
I am not satisfied that no substantial miscarriage of justice has actually occurred.
I would allow the appeal, quash the conviction and order that a new trial be had.
Serial No 12/1988
File No CCA 88/1987
MARK ANTHONY HARRIS v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
COSGROVE J
22 April 1988
I record my general agreement with the Reasons for Judgment of Cox J and with the order which he proposes. However, I wish to make some comments of my own.
Although historians may, and do argue about the origin and development of the right to silence (and to many the simplistic conclusion that it arose from a revolt against the practices of the Star Chamber is unacceptable) for the purpose of administration of the criminal law, it is not the history of the right that is important, but its place in the constitutional framework of today. That place is in my view, beyond dispute. It is part of an unwritten concordat between the three arms of government and the people by which an agreed base for just and responsible government is established.
It is one of a series of fetters on the power of the executive arm of government. These fetters include habeas corpus, which fetters imprisonment without presentation to the Courts; the privilege granted to witnesses to refuse to answer incriminating questions; the refusal of the Courts to admit evidence obtained by oppressive means or deliberate and illegal exercise of power; the requirement that the Crown, i.e. the executive must prove the guilt of an accused beyond reasonable doubt. These are all shoots from the one tap–root – the preservation of the rights of the individual against the executive arm in which reside all the government powers of enforcement. The most significant feature of these restrictions on that power is that they are accepted by the executive itself, as well as by parliament, the Courts and the people. They represent the common understanding of the government and the people, in respect of the ordinary affairs of life. There may be occasions, such as occur in war, revolution, and espionage when this common understanding is temporarily put to one side. But it is never forgotten or abrogated. Each of these restrictions is and is acknowledged by all arms of Government to be an indispensable bastion in the common man's fortifications against oppression.
That being so, it must follow that none of them ought to be undermined in any way. So far as the right to silence in the face of executive interrogation is concerned, it ought to be, and is absolute. If it is absolute, then the exercise of the right cannot be used in any way as an indication of guilt. Merely to embark on a consideration of the reasons for the exercise of the right is to undermine the right itself. To suggest that a story told later is inconsistent with the exercise of the right is to qualify the right, because it implies that certain persons in certain circumstances ought not, or would not exercise it. "Ought not" is an immediate invasion of the right; "would not", implying as it does that right minded persons, or agitated persons, or candid persons would, in certain circumstances not exercise the right, is no less an invasion, because it involves an examination of the reasons for its exercise. Once any intrusion into the right occurs, the opportunities for manipulation of the subject by the executive multiply.
The other matter which I wish to mention is s85 of the Evidence Act 1910, and the common law discretion which a trial judge has to exclude character evidence. It was submitted by counsel for the appellant that this was a discretion to permit the introduction of such evidence. The difference in the manner of describing the discretion would, perhaps, be immaterial, were it not for the fact that it is used as a basis for the suggestion that the prosecution, having successfully proved the requirements imposed by the section, has yet another hurdle to surmount before the evidence may be introduced.
The submission was based on Phillips v R. (1985) 62 ALR 479, in particular some verbal expressions in the majority judgment and an outright statement in the dissenting judgment of Deane J. The statute under consideration in that case differs from the Tasmanian Statute in that it specifically provides that the permission of the trial judge to introduce character evidence must be obtained. That is, however, hardly a sufficient ground for distinguishing the case, as such permission must as a matter of understood procedure, be obtained in this State. It does, however, serve to explain why the Justices in the majority spoke of a "discretion of a trial judge to permit".
But it is clear that those Justices did not by that expression intend in any way to support a limitation of the general nature of the discretion, as their approving references to Reg v Selvey [1970] AC 304 show. It needs only a little thought to see that the discretion cannot be used to permit the introduction of inadmissible evidence, and that there is no statutory or other warrant for the imposition of any further obstacle to admissibility than the conditions imposed by the section. The discretion to be exercised is that described by Viscount Dilhorne in R. v Selvey ((supra) at 3401) ie to exclude otherwise admissible evidence or disallow otherwise permissible cross–examination in the interest of securing a fair trial. This power of exclusion is exercised generally and is not confined to character evidence.
As his Lordship said (3412), "there is not, I think, any general rule as to the exercise of discretion. It must depend on the circumstances of each case and the overriding duty of the judge to ensure that the trial is fair". It follows that there is no burden of proof; there is nothing to prove; the matter is entirely in the hands of the judge.
Serial No 12/1988
File No CCA 88/1987
MARK ANTHONY HARRIS v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
COX J
22 April 1988
The appellant appeals against his conviction for one count of trafficking in a prohibited substance, namely heroin. His first ground of appeal is expressed as follows:–
"1The learned trial judge misdirected the jury in law as to the right to remain silent and in particular by expressing the view that the jury were entitled in the circumstances to take into account my decision to remain silent as to whether they believed my evidence or not and further by expressing the view that it would be wrong to take into account my right to remain silent in a general way, but that they were not obliged to ignore it totally."
The right to silence is an ancient one developed, as Gray J of the Victorian Supreme Court points out in Bruce v The Queen (1986) 23 A Crim R 123 at p134:–
"..... from the indignation caused by the practice in the Court of Star Chamber, until its abolition in 1641, of compelling subjects called before it on no charge to answer questions on oath for the purpose of eliciting incriminating material against them."
How far the right extends, and what limits there are to the inferences which can be drawn from the fact of silence of an accused person, had been the subject of much judicial comment, a good deal of which is irreconcilable. It is clear however that it means far more than that a failure by him to answer questions put to him by a person investigating the commission of an offence will not constitute a breach of obligation, nor render the person questioned liable to punishment.
The existence of the right to silence does not always prevent the silence of a suspected person being treated as evidence of an admission. In Re v Mitchell (1892) 17 Cox's CC 503 at p508, Cave J said of a statement made by a dying witness in the presence of the prisoner and not contradicted by the latter:–
"Now the whole admissibility of statements of this kind rests upon the consideration that if a charge is made against a person in that person's presence it is reasonable to expect that he or she will immediately deny it, and that the absence of such a denial is some evidence of an admission on the part of the person charged, and of the truth of the charge. Undoubtedly, when persons are speaking on even terms, and a charge is made, and the person charged says nothing, and expresses no indignation, and does nothing to repel the charge, that is some evidence to show that he admits the charge to be true. But, where a statement is made in such circumstances that the prisoner cannot repel the charge, it is absurd to say that his remaining silent is any evidence of the truth of the charge. In this case, where a woman was lying on her deathbed, and her evidence was being formally taken, the last thing in the world to be expected is that the prisoner should have started up and denied it."
Likewise in R. v Grills (1910) 11 CLR 400, each member of the High Court acknowledged that silence in the face of an accusation may amount to an admission by conduct of the truth of that accusation (Griffiths CJ at 409; Barton J at 413; O'Connor J at 418 and Isaacs J at 422). The House of Lords in R. v Christie [1914] AC 545 at p565 also acknowledged that proposition. A more recent example is that of Parkes v Regina [1976] 3 All ER 380, a decision of the Privy Council.
It soon came to be accepted however that once a caution of the kind recommended by the Judges' Rules of 1912 had been administered to a suspect, his silence thereafter could not be regarded as evidence of guilt (Whitehead v The King (1928) 21 Cr App R. 23; The King v Keeling [1942] 1 All ER 507; Hall v The Queen [1971] 1 All ER 322; The Queen v Twist [1954] VLR 121; Woon v The Queen (1964) 109 CLR 529).
Though this principle has been clearly established, it has been held by the Court of Criminal Appeal in New South Wales that where an accused person elects to avail himself of his right to remain silent there is no rule of law requiring a direction to be given to a jury that the exercise of that right does not entitle the jury to draw any inference adverse to the accused person. If, however, the jury is left under the misapprehension that they could draw an unfavourable inference from mere refusals to answer, then a direction would be necessary.
That the right to silence exists, irrespective of whether a caution is administered, is also quite clear from the cases – as Lord Diplock on behalf of the Board put it in Hall v The Queen [1971] 1 All ER 322 at p324:–
"It is a clear and widely–known principle of the common law in Jamaica, as in England, that a person is entitled to refrain from answering a question put to him for the purpose of discovering whether he has committed a criminal offence."
But if silence can in some circumstances be taken as evidence of guilt (Reg v Mitchell; R. v Grills; Parkes v The Queen (supra)), what advantage does the right to silence confer? I respectfully agree with the observation of Gray J in Bruce v The Queen (1986) 23 A Crim R 123 at p136 that, "silence can never amount to an admission if the silence is occasioned by the conscious exercise of a known right to remain silent". His Honour drew for this statement on the dictum of Windeyer J in Woon v The Queen (1964) 109 CLR 529 at p541:–
"A question asked of a person accused or suspected of a crime, or a statement made in his presence, is admissible if he is invited to, or might reasonably be expected to, respond in some way indicative of denial or of acceptance. It is not that what is said to the accused can of itself be evidence against him. But his response or reaction may be; and that is why what is said to him is admitted. His words, silence or conduct may amount to an admission of the truth of what was said. This is subject to the qualification that no inference adverse to a man can be drawn from his refusal to answer questions which he has been expressly told he is not bound to answer or from his silence after he has been told he need not speak at all."
Where a caution has been administered, the person questioned is however given protection which extends beyond merely ensuring that his silence cannot be treated as an admission. In The King v Naylor [1933] 1 KB 685 at p687 Lord Hewart CJ said:–
"We do not think that the words of the caution can properly be construed in the sense that the prisoner remains silent after being cautioned at his peril and may find his silence made a strong point against him at his trial."
In R. v Leckey [1944] KB 80 at p86 the Court of Criminal Appeal said:–
"Having considered those cases, and, in particular, the clear and emphatic language used in Rex v Naylor, I turn to the question whether or not the passages which I have read from the summing–up of Singleton J in the present case amount to a misdirection justifying the quashing of the conviction. On three occasions the judge seems to suggest to the jury that they might infer the appellant's guilt by considering the fact of his silence after being cautioned. In our view, that amounted to a misdirection, and it is proper ground on which this conviction should be quashed. If it were not so, a caution might obviously be a trap instead of the means for finding out the truth in the interests of justice. An innocent person might well, either from excessive caution or for some other reason, decline to say anything when charged and cautioned, and, if that could be held out to a jury as ground on which they might find him guilty, he might obviously be in great peril."
In The Queen v Twist [1954] VLR 121 Smith J said at p130:–
"In my view, therefore, the caution which was given to the appellant in the present case would naturally have been understood by him as meaning that he might decline to answer questions without thereby prejudicing himself in any way, but that if he gave any answers he would be running a risk. In the language used by Dr Stallybrass in a note in the Law Quarterly Review, vol 60, at p131, it was 'an invitation to say nothing'. And if this be the true view, then it follows, I consider, that no reasonable man, and therefore no jury, could properly regard the appellant's refusal to answer as showing him to have been lacking in candour or as justifying any such inference of guilt or concealment or untruthfulness as was indicated by the learned Judge's observations."
In the Supreme Court of New South Wales Jordan CJ said in Ex Parte Kitsch; Re Craig (1944) 44 SR (NSW) 360 at p369:–
"The authorities cited in the case of R. v Leckey, and that case itself, show that it is important that accused persons should not be prejudiced through taking advantage of the usual caution."
In R. v Vandine [1968] 1 NSWR 417 at 421 the court said:–
"It is a basic principle in the criminal law that such warning gives full privilege to an accused to say or not to say anything and if he remains silent on any aspect during the interview, whether it be in relation to what is being recorded whilst it is so recorded or to any matter thereafter until the whole interview is concluded that such silence cannot be treated or construed as any evidence of an admission. Otherwise the warning is a sham. The privilege extends to the whole of what transpires once the warning is given and is not confined to just the particular questions asked and answers recorded or unanswered. The person interrogated is entitled to assume that the warning so extended continues and that he has complete freedom to answer or refrain from answering or making any statement without fear of such silence being used against him. The court should see that full and meaningful effect is given to such warnings, and that the words of warning are not merely treated with lip service."
It would seem from these observations that if the accused is not to be prejudiced in any way by his exercise of the right to silence after caution, then no adverse inference at all can be drawn therefrom. Yet there are many cases in which adverse comments by trial judges on the failure to speak at an earlier time have been countenanced, a distinction being drawn between using silence as positive evidence of guilt and using it to test the credibility of an innocent explanation subsequently advanced (especially if first advanced only on trial).
In Gerard v The Queen (1948) 32 Cr App R 132, the applicant was found by police in possession of a lorry laden with bottles of spirits, whereupon he ran away. Having been caught and taken to the police station he was cautioned and asked if he wished to say how he came into possession of the lorry and its contents. He replied, "What I have to say I will say to the Court". In his summing up the trial judge commented to the effect that, if the applicant were innocent, it was somewhat curious that he had made that statement when he was charged. Humphreys J, on behalf of a court presided over by Lord Goddard CJ, said at p134:–
"Counsel for the applicant has submitted to this Court that that comment was a misdirection. It could be a misdirection only if it was an invitation to the jury to form an adverse opinion against the applicant because he did not then give an explanation, but, in our opinion, it cannot possibly be construed as anything of the sort. It was a perfectly harmless, reasonable and true observation to make."
A different conclusion on the facts was reached in Davis v The Queen (1959) 43 Cr App R 215, where the comment was:–
"Can you imagine an innocent man who had behaved like that not saying something to the police in the course of the evening or the next day, or even a little time afterwards? He said nothing."
In Sullivan v The Queen (1967) 51 Cr App R 102, the trial judge had said to the jury:–
"The accused refused to answer any questions. Of course bear in mind that he was fully entitled to refuse to answer questions, he has an absolute right to do just that, and it is not to be held against him that he did that. But you might well think that if a man is innocent he would be anxious to answer questions."
The court held that this was not a proper comment because it was inconsistent with the accused's right to silence following the caution. The court said at p105:–
"It has been established by a long line of authority culminating in DAVIS (supra), that a judge is not entitled in any circumstances to suggest to a jury, when a man refuses to answer any questions after having been cautioned, that, if he were innocent, it is likely that he would have answered the questions. What a judge may say to a jury when a man refuses to answer is, perhaps, not so plain. There are cases in which the comment in the summing–up upon an accused's silence is clearly unfair; LECKEY (supra) was such a case and so was NAYLOR (supra). There are other cases, however, and this is one of them, in which the circumstances are such that it does not appear that there is any unfairness involved in the comment. The line dividing what may be said and what may not be said is a very fine one, and it is perhaps doubtful whether in a case like the present it would be even perceptible to the members of any ordinary jury. But there can be no doubt, on the authorities, that this court must hold that, in the present state of the law, what was said to the jury in the passage from the summing–up which has been cited amounted to a misdirection."
Not surprisingly the court applied the proviso and affirmed the conviction.
In Gilbert v The Queen (1978) 66 Cr App R 237, the Court of Appeal presided over by Viscount Dilhorne lamented that the state of the law required a judge not to comment adversely on the accused's failure to make a statement prior to his trial. The distinction to which I have adverted had been stated in these terms in Ryan v The Queen (1965) 50 Cr App R 144 at p148 by Melford Stevenson J:–
"It is, we think, clear as a result of [those] authorities that it is wrong to say to a jury 'Because the accused exercised what is undoubtedly his right, the privilege of remaining silent, you may draw an inference of guilt'; it is quite a different matter to say 'This accused, as he was entitled to do, has not advanced at any earlier stage the explanation that has been offered to you today; you, the jury, may take that into account when you are assessing the weight that you think it right to attribute to the explanation.'
In the view of this court, there is a clear dividing line between those two courses."
Viscount Dilhorne in Gilbert (supra) at p244 said of the view that there was such a clear dividing line:–
"We have to confess that we are unable to perceive that that is the case. The second of the statements quoted seems to us an invitation to the jury to draw an inference adverse to the accused on account of his exercise of the right of silence."
He went on:–
"We regard the present position as unsatisfactory. In our view it may not be a misdirection to say simply 'This defence was first put forward at this trial' or words to that effect, but if more is said, it may give rise to the inference that a jury is being invited to disregard the defence put forward because the accused exercised his right of silence, in which case a conviction will be placed in jeopardy.
It is not within our competence sitting in this Court to change the law. We cannot overrule the decisions to which we have referred. A right of silence is one thing. No accused can be compelled to speak before, or for that matter, at his trial. But it is another thing to say that if he chooses to exercise his right of silence, that must not be the subject of any comment adverse to the accused. A judge is entitled to comment on his failure to give evidence. As the law now stands, he must not comment adversely on the accused's failure to make a statement."
(See also Reg v Bouquet [1962] SR (NSW) 563 and The Queen v Router (1977) 14 ALR 365).
Notwithstanding the court's reluctant acceptance in Gilbert of the prohibition against drawing inferences from the failure of the accused when interrogated to mention the defence which he puts forward at his trial, Viscount Dilhorne sought to reserve the right to such limited comment as "This defence was first put forward at this trial". With respect, I find it difficult to see how in a case such as Gilbert (where self defence was first raised at the applicant's trial for murder, notwithstanding ample opportunity to have mentioned it to investigating police) such a comment was not equally objectionable as being one which could not be expected to invite any other inference than that if it were the true explanation the applicant would have put it forward earlier and not preserved silence.
As long ago as 1934 in R. v Littleboy [1934] 2 KB 408, the Court of Criminal Appeal in a judgment delivered by Lord Hewart CJ made observations suggesting that comment on the late presentation of a defence was proper. That was a case of alibi and the trial judge observed that it was unfortunate that the prisoner did not say then and there, that is to say when charged and when asked by the magistrates before being committed for trial, if he desired to give evidence on his own behalf or call witnesses that he was at Wroxham on June 29. The learned judge proceeded to say:–
"If he says it then and there, it gives the police, or those who are conducting the prosecution, an opportunity of making their own inquiries to test the truth of the statement that he was at Wroxham on that afternoon, at the material time, on June 29. By adopting the course of saying 'I reserve my defence,' of course, he deprives the prosecution of any opportunity of testing that statement."
The Lord Chief Justice said at p413, after referring to R. v Naylor (supra):–
"It is quite true that there are sentences to be found in the report of that judgment which appear to be of universal application. We do not think, however, that it was ever intended to lay down the proposition that a judge may not, in a proper case, comment on the fact that the defence of alibi has not been disclosed on an earlier occasion. It is one thing to make an observation with regard to the force of an alibi, and to say that it is unfortunate that the defence was not set up at an earlier date so as to afford the opportunity of its being tested; it is another thing to employ that non–disclosure as evidence against an accused person and as corroborating the evidence of an accomplice."
At p414 his Lordship also said:–
"No doubt observations upon the failure to disclose a defence at some date earlier than the trial have to be made with care and with fairness to the accused person in all the circumstances of the case, but we do not assent to the general proposition that in no circumstances may comment be made on the failure to disclose the defence in the police court. The observations of the court in Rex v Naylor were never intended to go that length. There is a great difference between making the comment that silence on the part of the prisoner is unfortunate and a matter to be regarded with reference to the weight of the defence, when the defence of alibi is raised, and saying that the fact that the prisoner was silent may be treated as evidence against him or as corroborating the evidence of an accomplice."
Since that time comment on the credibility of an alibi defence first raised at trial seems to have been accepted as proper, provided that it is directed not to the failure of the accused to assert the alibi when questioned by police, but to the fact that non–disclosure has deprived the prosecution, suddenly confronted with alibi evidence at the close of its case, of fairly testing it. In Lewis v The Queen (1973) 57 Cr App R 860, Roskill LJ noted that under the Criminal Justice Act 1967 Parliament had prescribed the time at which a notice of alibi must be given and that it would be wrong for a judge to comment criticising the accused for not having given the notice of alibi earlier than the time at which Parliament had laid down. In Tasmania there is now a similar provision requiring the giving of a notice of alibi prior to trial and a failure to do so at a time which enabled the prosecution to investigate its credibility seems to me to be a proper matter for comment which would not be perceived by the jury as a criticism of the silent accused's failure to mention it when interviewed by police after caution. Other alibi cases include The Queen v Bouquet [1962] SR (NSW) 563 where Sugerman J at p571 said:–
"The setting up of a defence of alibi for the first time at the trial does not open the door to comment 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. It does admit of comment, but only within the limitations indicated in the citations which I have lastly made and the reasoning upon which they rest. Of these, what was said in R. v Littleboy, remains the clearest explanation."
See also R. v Twist [1954] VLR 121 at pp130 – 131 where Smith J said:–
"It is true that where an alibi is set up at the trial and the Crown has had no previous opportunity of investigating and testing it, the trial Judge is entitled to tell the jury that that is a circumstance which they may take into account in deciding what weight they should attach to the evidence given in support of the alibi."
Apart from questions of alibi, there is still in Australasia uncertainty as to the propriety of comment on the late raising of a defence by a person who remains silent after caution. In R. v Beljajev [1984] VR 657 the Victorian Full Court was concerned with a charge of handling stolen property. The appellant was shown to have been in possession of jewellery recently stolen. He was interviewed by police after caution, answering some questions and declining to answer others and failing to give any explanation for his possession of it. An innocent explanation was given for the first time in an unsworn statement from the dock. The trial judge directed the jury that the appellant's failure to explain his possession, after being cautioned, could be regarded as bearing upon the credibility of his explanation from the dock. The court held that the accused's failure to give an innocent explanation after being cautioned could not be used to impugn his credit and that the jury should have been so directed. Starke J, who delivered the leading judgment, advanced the following propositions at p.662:–
"(a) Any untrue statement or false denial made before or after a caution is given can be used to show a consciousness of guilt and can be used as to the credit of the applicant if he subsequently gives an innocent explanation at his trial or before trial.
(b) Any failure to give an innocent explanation when the situation reasonably calls for it before the caution can be used as to the credit of any subsequent innocent explanation which he makes at his trial or before trial.
(c) No failure to give an innocent explanation after caution can be used as to the applicant's credit or otherwise, and the jury must be so directed.
(d) In my opinion the concept of selectivity does nothing more than confuse the issue in this case. I think it is clear – and the case of Woon v R. (1964) 109 CLR 529 is in point – that selective answers made before or after caution can be used to show a consciousness of guilt and can be used no doubt as to the credit of a subsequent innocent explanation if the answers can be clearly and reasonably construed as showing a consciousness of guilt.
Here, whilst it is clear that the applicant did answer some questions and so to this extent was selective it does seem that the questions he answered were questions which either were known to the police or could obviously have been ascertained by them. It is not suggested that any of the answers were untrue, and accordingly, in my opinion, could not have been used by the jury either to show a consciousness of guilt or to undermine the credit of the innocent explanation which he subsequently made in his unsworn statement from the dock.
(e) The failure to give an immediate innocent explanation is not a matter exclusive to cases of recent possession, but subject to the right of silence, applies to all cases where an innocent explanation may be reasonably expected.
In my opinion, the right to silence is a fundamental principle of the criminal law and is not to be overriden by any other so–called doctrine or other principle."
Proposition (c) was doubted by Gray J in Bruce v The Queen (1986) 23 A Crim R 123 in a judgment in which Young CJ and Crockett J agreed. At p132 he opined that it was expressed too widely and must be qualified by reference to earlier Full Court judgments not referred to in Beljajev. The first of these was a then unreported case of McNamara (delivered on 19 November 1976, but now reported at [1987] VR 855) in which the appellant had been interviewed by a detective Halloran after caution some days after the commission of a crime. He answered some questions but declined to answer others. At trial he gave an innocent explanation for his presence at the place where he was arrested. He was cross–examined as to why he had not told his story earlier. The court (Young CJ, Newton and Dunn JJ) considered the propriety of the cross–examination which for the purposes of discussion the court divided into three categories, namely:–
"The first category consists of questions put to the applicant in general terms about why the story which he had told in his evidence in chief had not earlier been told by him to the police, or to doctors at the Royal Melbourne Hospital, or to others.
The second category consists of questions put to the applicant as to why he had not answered specific questions put to him by Halloran on 6 May 1975, which in fact he had declined to answer.
The third category consists of questions of an unmistakably hostile or incriminating character, which were put to the applicant about the reasons why he had refused to answer questions put to him by Halloran." (At pp 869–70).
The court said that they considered that the first of these three categories of cross–examination was perfectly proper, but they had doubts about the propriety of the second and third. At p870 of their reasons for judgment their Honours said:–
"As we have earlier emphasised, 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: see Littleboy 1934 2 KB 408; Foster [1955] NZLR 1194; Bouquet [1962] SR (NSW) 563 and Ryan (1964) 50 Cr App R 144. 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: see, for example, the questions asked by Avory J of the accused in Littleboy as set out at 412. 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': see Foster at 1200; see also Littleboy at 413 – 414; and Ryan at 148. The distinction has been criticised by Professor Cross (1973) Criminal Law Review at 333, but nevertheless it is well established by the authorities. It is thus, we think, clear that the first of the three categories of cross–examination in the present case was proper.
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. On the other hand the true view may be that where an accused person, after being cautioned, refuses to answer specific police questions, then his refusal to answer those particular questions can never be used against him in any way, including by way of an attack on his credibility if he later gives evidence; for otherwise the caution that he need not answer questions could be said to be a trap: cf Leckey at 86. This problem was referred to, but not decided, by the New Zealand Court of Appeal in Foster especially at 1201. In the present case the third category of cross–examination may on any view have gone beyond what was proper, because it may be said to have proceeded on the fallacious assumption that in the absence of any satisfactory explanation from the applicant it was open to the jury to use the applicant's refusal to answer Halloran's questions as evidence of his guilt. But we find it unnecessary to decide any of these problems."
What was not clear however from the digest of McNamara in Bruce, but is now clear from the report, is that no caution was administered to the appellant prior to the time the subject of the questions in the first category of cross–examination, whereas those falling within the second and third categories did relate to the situation where the accused had been so cautioned. Thus it can be seen that in McNamara the Full Court did not purport to decide on the propriety of drawing adverse inferences from a failure to give an innocent explanation after caution and conceded that "the true view may be that ... a refusal to answer specific questions after caution can never be used against him in any way, including by way of attack on his credibility if he later gives evidence".
The other case which it was said in Bruce that Starke J had not referred to in Beljajev is Wright [1980] VR 593, where the Full Court dismissed an appeal in which the complaint was that the prosecutor had cross–examined the accused about his failure to answer questions after a warning and had pressed arguments upon the jury that they should reject his evidence at trial because of such failure. As Kaye J said at p618 of that case, however, after having referred to the passage of McNamara which I have just cited:–
"The questions under challenge in the present case, however, do not fall within any of the categories of questions dealt with in McNamara's Case. ...
In the present case, in his evidence–in–chief, the appellant swore that he had given to the investigator a specific answer to the question concerning Mr Bell; that evidence conflicted with Mr Green's evidence of his answer. It followed that the appellant challenged the veracity of Mr Green's evidence while setting up a defence which was at risk of being tested. It was a legitimate course to direct the appellant's attention to his answers to Mr Green's questions that he had no comment and to seek to elicit an explanation for it."
It appears that Wright turned very largely on its own facts and in no way challenges the propositions advanced by Starke J in Beljajev.
These propositions, in my respectful opinion, are valid. They do not purport to exhaustively state the position and specifically they do not address the situation where the accused is not given the usual caution, but is aware of the right and keeps silent in exercise of it. Perhaps another way of expressing the substance of propositions (b) and (c) so as to take account of that situation and to provide some rationale for the rules formulated would be to say that any failure to give an innocent explanation when the situation reasonably calls for it can be used as to the credit of the applicant if he subsequently gives an innocent explanation at his trial or before trial, but that where there is evidence, whether it be of a warning or of some otherwise acquired knowledge of the right which justifies a finding that the accused remained silent in a conscious exercise of that right, it would be proper to direct the jury that in those circumstances it could not be said that this situation reasonably calls for the giving of the explanation. If there is such evidence, it will be for the jury to evaluate the accused's explanation without reference to the fact that it was not earlier advanced.
It is necessary to turn now to the facts of the present case and to the terms of the direction complained of.
Evidence was given by four police officers, members of the Drug Squad, that on Wednesday the 2 October 1985 they had taken up surveillance positions in two cars and observed the appellant's car parked opposite number 90 Ravenswood Road, Launceston. According to Detective Canning, he and his colleague arrived at about 2.30 p.m. Some time thereafter the appellant came from the vicinity of that address, got into the car, drove a short distance, turned around and came back, parking on the other side of the road immediately outside the same address and walked in towards the units situate thereat. About 3.10 p.m. he returned to the car, drove along Ravenswood Road, stopped at a service station for petrol and then drove along Henry Street towards the City of Launceston travelling along Innes Street and into Cimitiere Street. There one of the police vehicles drew alongside him, the appellant stopped suddenly, began to reverse at a fast speed for several metres and then veering to the right mounted the kerb and stopped on the grass strip in the roadway. He alighted, moved back towards the rear of the car and was apprehended by another police officer at gunpoint. This account was substantially corroborated by the two occupants of the other surveillance car which seems to have arrived half an hour earlier. According to Detective Canning the appellant called out "It's in the car, it's in the pocket of the jacket". The appellant at trial disputed saying those words or mentioning anything about a jacket. It was common ground that inside the car there was a denim jacket and it was not conceded perhaps, but certainly not disputed, that in the jacket was a plastic bag containing a quantity of white powder subsequently analysed as heroin. The appellant was asked whether he had any more plastic bags containing powder in his possession and replied, according to the police, "No that is all of them". He was then formally cautioned.
The vehicle was brought to the Launceston Police Station and searched in the presence of the appellant. In it was found a bag containing a set of scales and weights. There was an empty cigarette packet with the address "Unit 2, 90 Ravenswood Road" and a telephone number written on it. The appellant was searched and found to be in possession of $295.20. A fifth officer, Detective Burton, interviewed the appellant in the presence of Detective Canning. Part of the conversation was as follows:–
"Detective Burton said to the accused 'Your vehicle was observed outside 90 Ravenswood Road this afternoon' and the accused replied 'Yes but only for a short time'. Detective Burton then said 'Can you explain to us why you were at 90 Ravenswood Road?' and the accused replied 'To see a friend'. Detective Burton then said to him 'Can you tell us who owns the denim jacket located in your car?'. He replied 'I do, it is mine'. Detective Burton then said 'Can you explain to us who owns the plastic bags located in the jacket pocket?'. The accused replied 'That's also mine'. Detective Burton then said 'I believe the white powder located or found in the small plastic bags to be heroin'. The accused replied 'I'm busted, it had to happen sooner or later'. Detective Burton then said 'Is the powder in the bags heroin?'. He replied 'Yes, to you that should be obvious'. Detective Burton then warned the accused and he said 'I must warn you that you are not obliged to say anything or to answer any questions unless you wish to do so, but anything you do say will be noted by Detective Canning and may be given in evidence. Do you understand that?'. The accused replied 'Yes, I understand it'. He then said 'I can see trouble in this for me'. Detective Burton then said 'Can you explain how you came to be in possession of $295?'. The accused replied 'I can tell you that I won it at the casino but you would check it out. Alright I sold one bag.' Detective Burton then said 'How much did you sell it for' and the accused replied '$300'. Detective Burton then said 'Was the sale made at 90 Ravenswood Road?' and the accused said 'Unit 2'. Detective Burton said 'Is that the address written on the cigarette packet?'. He replied 'Yes'."
The two officers in the other surveillance car were then despatched to that address where, they gave evidence, they seized from a female a plastic bag filled with powder which was also later analysed as heroin.
On their return the appellant was again cautioned and, according to Detective Canning, Detective Burton said "I must remind you of the warning previously given to you" and the accused replied "I can remember that". Detective Burton then said "A search has been conducted of Unit 2, No. 90 Ravenswood Road by Detectives Muller and Jones and this bag containing what I believe to be heroin and sold by you to a female at that address was located on the kitchen table". The accused replied "Yes, what else can I say". Detective Burton then left the office, returning about 15 minutes later and said to the accused "I will conduct the record of interview with you in regard to these matters". The accused replied "Nothing personal, I don't want to give anyone a hard time, but please understand I must leave myself some options open from – I can only offer no comment answers to any questions that are asked from here on. Please understand."
The record of interview commenced with a lengthy allegation recounting the observations of the police, the apprehension of the appellant, the discovery of powder in the jacket and at the unit and yet a further warning. In answer to questions he gave his name, address and occupation. He was then asked a series of questions about his movements and the items found and replied to most of them "No comment" or similar words. According to the police, the answer he gave to the question "Can you tell us what is in these plastic bags?" was "No comment. I told you before I'm busted. It had to happen sooner or later." The record of interview was, according to the police, given to the appellant to read, he agreed with its contents and signed it. Evidence was given by an inspector that on the night of the interview he saw and countersigned the record of interview, was told by the appellant that the record of interview was true and that he had no complaints about the way he had been treated by any police officer.
The appellant, by cross–examination of the Crown witnesses, challenged all the incriminating admissions attributed to him, denied that he had signed the record of interview tendered to the court, and claimed that there was another one which had not been produced.
He gave evidence denying knowledge or ownership of the white powder. In substance he claimed to have come from Hobart to the Launceston Casino about noon that day and there met two persons, Wilson and Wellington, whom he called as witnesses at the trial. Both confirmed that at the Casino the appellant had been approached by a large man unknown to any of them who had introduced himself only as "Big John" and had after casual conversation asked the appellant for a lift to Ravenswood. The three men, other than Wellington who remained at the Casino, had left together. Wilson gave evidence corroborating the appellant that they had all travelled to a part of Launceston which Wilson was not familiar, that "Big John" had alighted mentioning his intention to visit a prostitute at a nearby house and had asked the other two to wait. As he was leaving "Big John" had been handed a bag from which had fallen objects similar to those, for example the weight case and plastic bags, found by the police. The appellant had asked what they were, but had been told by "Big John" it was none of his business. The items were retrieved and the bag taken by "Big John" to a nearby flat. The appellant and Wilson stayed for a while and then walked to a shop which was closed and then returned to the car. "Big John" returned, handed money to the appellant, told him to buy petrol and put some money on an unspecified horse in an unspecified race, took his coat off and then threw it in the back seat before again departing. The appellant went to get petrol but dropped Wilson off on the way at a milk bar and never returned to pick the latter up.
The appellant's case was that "Big John" had left the case with the scales, the cigarette packet with the address and the coat in which the heroin was found in his car and that he had nothing to do with the substance at all. On his version he was on the way to place a bet at the TAB agency when he was apprehended by police and reversed in the way described by the police to avoid blocking the road and holding up the traffic.
According to him, when he was orally interviewed by Detective Burton, he agreed with the latter's statement that his car had been seen outside 90 Ravenswood Road that afternoon and that he had replied "Yes but only for a short time". He said he told Detective Burton that he had taken someone there, but that he had never been there before and had "never met that woman who was living at that particular place before". He said that when shown the jacket and asked who owned it, he replied that he did not know who owned the jacket, although on his version this was a lie for he knew that it belonged to "Big John". At some stage during this interview the appellant claimed he said to Detective Burton that he had always understood with legal matters "that I maintained my legal right to silence until I could seek legal advice". He claimed that during a written record of interview the only replies he gave were to questions about his name, address and occupation and that he again told the police he would maintain his legal right to silence until he could seek legal advice. He said he gave no answers to the other questions asked in the interview.
During his summing up the learned trial judge said:–
"The other point is that the accused, both according to himself and according to the police, in different ways, say that the accused either made no comment when he was asked questions about various matters, particularly in the record of interview, or, according to his account, told the police that he would take advantage of his right to remain silent and not to make any statement about the matters he was being questioned about.
Now whichever it was, there is evidence that he, by and large according to the police, and entirely according to himself, kept silent about it and refused to make any comment about it or give answers to most of the questions asked by the police.
Now, in relation to his keeping silent, he was entitled to do that, he had the legal right not to answer questions if he wished to do so and you must not make any inference against him from the fact that he chose to remain silent. But again, you are entitled to take into account his evidence that he preserved his right of silence and told the police that he was not prepared to make any answers to the questions asked of him, in relation to whether or not you believe his evidence. Now, he's chosen to give evidence on oath, he had the right to do that. He wasn't obliged to do it, he could have taken other courses. He could have made an unsworn statement, he could have said nothing at all if he wished to do so. He has chosen to give evidence on oath, and it's for you to assess and judge his evidence in the same way as you do all the other witnesses. When you are considering the question of whether you believe his evidence or not, you are entitled, if you think fit to do so, it's all a question of your assessment of the facts of the case, to take into account that when he was asked in substance 'How do you come to have this heroin in your car?', he, in effect, makes no reply or makes no comment or says I'll preserve my right of silence. Because his account of what occurred seems to involve, does involve, plainly enough, the proposition that up at the casino, in the company of his two friends or acquaintances, just whatever they were, the three were approached by a person who was to them in substance a stranger, who told them that his name was 'Big John', and asked them for a ride or to be given a lift out to Ravenswood, and that they went out there, and he's given you an account of what he says occurred out there. He is then, on the way back from Ravenswood, apprehended by the police and subsequently he's asked 'What is this heroin doing in your car?' and he says either, 'I make no comment' or 'I'm going to preserve my right of silence'. Now you are entitled to consider his behaviour in that regard, that's to say his reactions, his answers, when he's asked by the police what the heroin is doing in his car, in relation to whether you believe him or not. That's to say, one way of looking at his story is that he is horribly let in by a virtual stranger who puts heroin in his vehicle, so that he, completely innocent, is apprehended by the police with heroin in his vehicle and he – sometime during that afternoon, it would seem, is told, it's made plain to him, he's going to be charged with dealing in that heroin, either possession of it or trafficking in it. He's asked 'Where does it come from?' and he says 'No comment', or 'I'm going to preserve my right of silence'. You are entitled to consider that behaviour in relation to whether it accords with the ordinary pattern of human nature, or whether it's the sort of thing that you would expect somebody in that situation to do, whether you would not expect someone caught in that situation to be protesting very volubly and strenuously that he'd been – it was all an accident, he was innocent, he'd been put in this position by a stranger, and so forth.
So, there, again, it would be wrong to take into account the fact that he chose to remain silent, in a general way, and saying we make an inference against him because he chose to remain silent, that would be wrong because he's got a right to remain silent. However, you are not obliged to shut your eyes to that behaviour when you are considering whether or not he's telling the truth when he says 'I was let into this horrible position, was completely innocent, let into it by a stranger, but nevertheless when I am asked by the police "What's the heroin doing there", I choose to say, well I'm going to retain my right of silence, it's no business of mine to say that some stranger put it there', and so forth."
Having regard to the authorities already cited, I am of the view that the above comments constituted a misdirection.
A further ground of appeal was that the learned trial judge erred in law in allowing the Crown, pursuant to the Evidence Act 1910, s85(10)(c), to cross–examine the accused as to his prior convictions. I am in no doubt that having regard to the nature of the cross–examination of the interviewing officers and to the evidence of the appellant himself the defence case clearly involved the making of serious imputations on the character of several prosecution witnesses. It was far more than a simple denial. It amounted to an allegation that the police had destroyed or held back a record of interview in which the accused had made no incriminating admissions, had concocted another which did do so, at least in part, had forged his signature upon it and had lied about it on oath in court. It was a clear case for permitting cross–examination on the character of the person making these allegations, unless in the exercise of his discretion the learned trial judge considered it proper to prevent that course from being followed. That he had an unfettered discretion to do so is quite clear from Selby v The Director of Public Prosecutions [1970] AC 304, followed by this Court in Regina v Jessup [1974] Tas SR 64 and see also Phillips v The Queen (1985) 62 ALR 479. In the present case, before allowing the Crown to cross–examine, the learned trial judge sought information as to what matters the prosecutor wished to put and there is no reason to suppose that in declining to exercise a discretion to exclude cross–examination upon them he failed to consider all relevant factors and, in particular, the prejudicial effect on the defence of the admission of the evidence of prior convictions as against the potential damage to the prosecution case of the imputations (Phillips v The Queen (supra) at p488). The convictions in question were for minor breaches of the Poisons Act 1971 or its equivalent in New Zealand. They did not relate to "hard drugs", nor was there any element of commercialism in them. The fact that he had been convicted of such offences was some evidence that he had engaged in discreditable conduct, but would not be expected in my view to suggest to the jury that he had any propensity to traffic in heroin. No complaint is made of the appropriateness of his Honour's directions to the jury on the use they could make of this evidence. In my view this ground fails.
Although, as I have said, it is my respectful view that the comments of the learned trial judge on the relevance of the appellant's silence in the circumstances to the credibility of his present evidence involved a misdirection, this was not a case where on any version the appellant had in fact maintained a right to total silence. According to him he had told the police he had taken someone to the address where on the prosecution case heroin had been recovered from a woman, whom he told the jury he had never met "before", and he had denied knowing who owned the denim jacket in his car when he knew "Big John" had left it there. It was a case to which propositions (a) and (d) in Starke J's formulation in the case of Beljajev v The Queen [1984] VR 657 at p.662 applied, that is, on his version, there was at least a lie and, on the police version, there were selective answers from which a consciousness of guilt might be inferred. Both these matters could properly be used as to the appellant's credit in assessing the innocent explanation proffered on trial (which denied any contact with the woman at the flat).
In my view the case against the appellant was overwhelming. He was found alone in his car with a quantity of heroin, scales and weights. He was found with a relatively large sum of money, heroin was recovered from the flat outside which he parked that day and his manoeuvres when his car was intercepted were strongly indicative of a consciousness of guilt. The explanation offered by him was inherently improbable and involved the claim that the mysterious stranger he so obligingly ferried from one side of Launceston to the other had taken his coat off and left it, his valuable illicit merchandise and his tools of trade in the appellant's car while he returned to the flat and despatched the appellant to purchase petrol and to place bets for him before returning to pick him up.
The jury had the opportunity of assessing him and the two witnesses he called to give support to his story. So far as the latter are concerned, on the timings given, it is theoretically possible that the events they described could have occurred before those described by the Crown witnesses and that, as Wilson did not claim to know where "Big John" had alighted, both he and Wilson may have left the appellant's company before the latter reached 90 Ravenswood Road. However, that was not how the case was conducted. The jury were not invited to consider that possibility which in the circumstances, especially of Wilson's account of "Big John" having spilt the contents of his bag, seems highly improbable, and the case presented to the jury by the Crown was that there was no such person as "Big John" at all. It would seem unlikely in the extreme that the jury accepted the evidence of either Wellington or Wilson and it is clear that they dismissed the appellant's evidence as not worthy of any credence. In doing so they would certainly have been entitled to take into account the fact that he had lied to the police concerning his knowledge of the ownership of the jacket and such selective answers they were satisfied he had given and which they considered might flow from a consciousness of guilt.
The question is whether this is an appropriate case for the application of the proviso contained in s402(2) of the Criminal Code. In Mraz v The Queen (1955) 93 CLR 493 at p514 appears the well–known passage from the judgment of Fullagar J:–
"It is very well established that the proviso to s.6(1) does not mean that a convicted person, on an appeal under the Act, must show that he ought not to have been convicted of anything. It ought to be read, and it has in fact always been read, in the light of the long tradition of the English criminal law that every accused person is entitled to a trial in which the relevant law is correctly explained to the jury and the rules of procedure and evidence are strictly followed. If there is any failure in any of these respects, and the appellant may thereby have lost a chance which was fairly open to him of being acquitted, there is, in the eye of the law, a miscarriage of justice. Justice has miscarried in such cases, because the appellant has not had what the law says that he shall have, and justice is justice according to law. It is for the Crown to make it clear that there is no real possibility that justice has miscarried."
On p515 his Honour referred to the words of Lord Sankey in Woolmington v Director of Public Prosecutions [1935] AC 462, "We cannot say that if the jury had been properly directed they would have inevitably come to the same conclusion" and commented "But no–one would suppose that Lord Sankey was thinking of any such abstraction as absolute certainty (which is inevitably unattainable), or would doubt that he was thinking of a reasonable, and not a perverse, jury".
Had the appellant alone given evidence of the part allegedly played by "Big John", then the misdirection might have influenced the jury in such a way that his explanation, flimsy though it was, did not receive the consideration it was entitled to. The case then might be said to have some of the features which restrained Crisp J in Carroll v The Queen [1964] Tas SR 76 (see pp87 – 88) from joining the other members of the court in applying the proviso in that case. However, the misdirection did not reflect upon the credibility of Wellington and Wilson and there is no reason to suppose that the jury's assessment and rejection (as seems clearly the case) of their evidence was in any way affected by it.
Had the learned trial judge's comments not been made, I cannot conceive in the circumstances of this case that the verdict of a reasonable jury would have been any different. In my view there is no possibility that the appellant lost a chance of acquittal which was fairly open to him and I would dismiss the appeal because I consider that no substantial miscarriage of justice has actually occurred.
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