Hobby v The Queen
[1999] WASCA 297
•17 DECEMBER 1999
HOBBY -v- R [1999] WASCA 297
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [1999] WASCA 297 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:118/1999 | 7 OCTOBER 1999 | |
| Coram: | KENNEDY J PIDGEON J MURRAY J | 17/12/99 | |
| 27 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| PDF Version |
| Parties: | JOHN WAYNE HOBBY THE QUEEN |
Catchwords: | Criminal law and procedure Perjury Admission into evidence of transcript of allegedly perjured evidence Purpose for which transcript received Receipt of inadmissible evidence Whether ground for discharging jury Whether defence adequately put Whether Weissensteiner direction appropriate |
Legislation: | Nil |
Case References: | Cleland v R (1982) 151 CLR 1 Connell v R (1994) 12 WAR 133 Domican v The Queen (1992) 173 CLR 555 Maric v The Queen (1978) 52 ALJR 631 OGD v R (1997) 98 A Crim R 151 Parker v The Queen, unreported; CCA SCt of WA; Library No 960740; 20 December 1996 R v Sharp [1988] 1 WLR 7 Santos v The Queen (1987) 61 ALJR 668 Simic v The Queen (1980) 144 CLR 319 Weissensteiner v R (1993) 178 CLR 217 A Child v Andrews (1995) 12 WAR 552 Christianos v The Queen, unreported; CCA SCt of WA; Library No 9217; 11 April 1992 Cutter v The Queen, unreported; CCA SCt of WA; Library No 960015; 17 January 1996 HG v The Queen (1999) 73 ALJR 281 Hinch v Attorney-General (Vict) (1987) 164 CLR 15 Ladd v Debnam, unreported; SCt of WA (Miller J); Library No 980672; 23 November 1998 Phipps v Police (1998) SASC 6574 Pickett v Fuderer, unreported; FCt SCt of WA; Library No 980475; 27 August 1998 R v Boxer (1995) 81 A Crim R 299 R v Brennan (1998) 101 A Crim R 214 R v Clune (1999) 72 SASR 420 R v Demeter (1995) 77 A Crim R 462 R v Ellis (1998) 100 A Crim R 49 R v Evans (1998) SASC 6798 R v Fogarty (1996) QCA 418 R v Glennon (1992) 173 CLR 592 R v Golightly (1996) 17 WAR 401 R v Heginbotham (1995) QCA 56 R v Heinicke (1998) SASC 6752 R v Hnoudis [1999] SASC 203 R v Kanaveilomani (1995) 72 A Crim R 492 R v Olney [1996] 1 Qd R 187 R v Peel [1998] 2 Qd R 400 R v Wallis (1998) QCA 229 R v Wood (1996) QCA 183 Stevenson v The Queen, unreported; CCA SCt of WA; Library No 960039; 29 January 1996 Stockman v The Queen, unreported; CCA SCt of WA; Library No 960267; 17 May 1996 Tulic v The Queen (1999) FCA 1120 Van De Weil v The Queen (1995) SASC 5202 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : HOBBY -v- R [1999] WASCA 297 CORAM : KENNEDY J
- PIDGEON J
MURRAY J
- Appellant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Perjury - Admission into evidence of transcript of allegedly perjured evidence - Purpose for which transcript received - Receipt of inadmissible evidence - Whether ground for discharging jury - Whether defence adequately put - Whether Weissensteiner direction appropriate
Legislation:
Nil
Result:
Appeal dismissed
(Page 2)
Representation:
Counsel:
Appellant : Mr I L K Marshall & Mr J A Bougher
Respondent : Mr R E Cock QC & Mr E Balodis
Solicitors:
Appellant : J A Bougher
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Cleland v R (1982) 151 CLR 1
Connell v R (1994) 12 WAR 133
Domican v The Queen (1992) 173 CLR 555
Maric v The Queen (1978) 52 ALJR 631
OGD v R (1997) 98 A Crim R 151
Parker v The Queen, unreported; CCA SCt of WA; Library No 960740; 20 December 1996
R v Sharp [1988] 1 WLR 7
Santos v The Queen (1987) 61 ALJR 668
Simic v The Queen (1980) 144 CLR 319
Weissensteiner v R (1993) 178 CLR 217
Case(s) also cited:
A Child v Andrews (1995) 12 WAR 552
Christianos v The Queen, unreported; CCA SCt of WA; Library No 9217; 11 April 1992
Cutter v The Queen, unreported; CCA SCt of WA; Library No 960015; 17 January 1996
HG v The Queen (1999) 73 ALJR 281
Hinch v Attorney-General (Vict) (1987) 164 CLR 15
Ladd v Debnam, unreported; SCt of WA (Miller J); Library No 980672; 23 November 1998
Phipps v Police (1998) SASC 6574
(Page 3)
Pickett v Fuderer, unreported; FCt SCt of WA; Library No 980475; 27 August 1998
R v Boxer (1995) 81 A Crim R 299
R v Brennan (1998) 101 A Crim R 214
R v Clune (1999) 72 SASR 420
R v Demeter (1995) 77 A Crim R 462
R v Ellis (1998) 100 A Crim R 49
R v Evans (1998) SASC 6798
R v Fogarty (1996) QCA 418
R v Glennon (1992) 173 CLR 592
R v Golightly (1996) 17 WAR 401
R v Heginbotham (1995) QCA 56
R v Heinicke (1998) SASC 6752
R v Hnoudis [1999] SASC 203
R v Kanaveilomani (1995) 72 A Crim R 492
R v Olney [1996] 1 Qd R 187
R v Peel [1998] 2 Qd R 400
R v Wallis (1998) QCA 229
R v Wood (1996) QCA 183
Stevenson v The Queen, unreported; CCA SCt of WA; Library No 960039; 29 January 1996
Stockman v The Queen, unreported; CCA SCt of WA; Library No 960267; 17 May 1996
Tulic v The Queen (1999) FCA 1120
Van De Weil v The Queen (1995) SASC 5202
(Page 4)
1 KENNEDY J: I have had the advantage of reading in draft the reasons to be published by Pidgeon J, in which the facts are set out. Generally for those reasons I agree that this appeal should be dismissed. I desire, however, to add some brief observations of my own.
2 Ground 1 of the grounds of appeal contends that the learned trial Judge erred in failing to discharge the jury following the Crown witness, Gary John Tibbs, having volunteered evidence which had earlier been ruled inadmissible. The question for this Court is whether it can be satisfied that the irregularity has not affected the verdict, and that the jury would certainly have returned the same verdict if the error had not occurred - see Maric v The Queen (1978) 52 ALJR 631, at 635; Simic v The Queen (1980) 144 CLR 319, at 330 - 332; and Santos v The Queen (1987) 61 ALJR 668, at 671. In my view, in the circumstances of this case, the direction of the learned trial Judge would have eliminated any risk of the jury's being influenced in any respect by the evidence which they were told by his Honour not to use and to ignore. No name was mentioned by Mr Tibbs as being that which his brother uttered, and the jury were told, appropriately, that the evidence now complained of assisted neither the Crown case nor the accused's case.
3 Ground 2.1, which contends that his Honour erred during the course of his charge to the jury in inaccurately stating the evidence presented to the jury, proceeds upon a misapprehension. It was contended on behalf of the appellant that the transcript constituted sworn evidence of the appellant which had been the subject of an extensive cross-examination at the Golightly trial. The fact that the evidence of the appellant was given on oath on the previous occasion is immaterial. It was hearsay and inadmissible insofar as it was sought to use it to prove the truth of what the appellant then said. The rule against hearsay renders an assertion, other than one made by a witness while testifying in the proceedings, inadmissible as evidence of any fact asserted - see R v Sharp [1988] 1 WLR 7, at 11, per Lord Havers, and cf Parker v The Queen, unreported; CCA SCt of WA; Library No 960740; 20 December 1996, per Malcolm CJ at 52. The contents of the transcript did not constitute hearsay and were admissible to establish the fact that the evidence was given by the appellant at Golightly's trial. The transcript was not tendered by the Crown to prove the truth of the appellant's earlier evidence. On the contrary, the Crown was asserting that the evidence was false.
4 Ground 2.2 contends that the learned trial Judge inadequately put the appellant's case to the jury. This ground has not, in my opinion, been made out. In essence, the defence case was that the evidence given by the
(Page 5)
- appellant at Golightly's trial was true and that the evidence of Mr Tibbs was unreliable. That was clearly put to the jury by his Honour. It was not his Honour's responsibility to take the jury through the transcript and to repeat each of the contentions made with respect to it by defence counsel. Nor was it, as counsel for the appellant claimed, the responsibility of the trial Judge to "lend the weight of his judicial position and authority to the defence case". I am not persuaded that there was any failure on the part of the learned trial Judge to put the substance of the defence case to the jury. He was not obliged to put to the jury every argument put forward by counsel for the accused - see Domican v The Queen (1992) 173 CLR 555, at 561.
5 So far as the "Weissensteiner" direction is concerned, I agree with the reasons of Pidgeon J and of Murray J. For the reasons already expressed, the direction given by the learned trial Judge to the jury regarding the use they could make of the transcript in this context was over-generous to the appellant.
6 I would dismiss the appeal.
7 PIDGEON J: The appellant is appealing against his conviction for perjury. The issues in the trial arose from a killing which took place on the outskirts of Geraldton on 12 January 1996. At about 9.45 pm on that night, Wayne Tibbs was driving to his home with his brother Garry Tibbs as a passenger. He stopped his vehicle in the carport of his residence, alighted and was shot. Two shots were heard. He died in the carport shortly afterwards. Mr Gary Tibbs was present when this occurred and gave a description of a man, who he could not otherwise identify, seen to be running away.
8 The killing resulted in one John St Clair Golightly being charged with wilful murder. The trial took place in the Supreme Court, Geraldton in January 1997 before Owen J. On 31 January the appellant gave evidence for the defence. He was asked if he knew how Wayne Tibbs came to be shot and he replied, "I shot Wayne Tibbs accidentally." He then gave detailed evidence as to how he shot him and what he did at the time. Mr Golightly was acquitted. The appellant was subsequently indicted for perjury, it being alleged that he wilfully deposed falsely to the effect that on 12 January 1996 he shot Wayne Gordon Tibbs. He was convicted by the jury at a trial before his Honour Judge Charters and this appeal relates to that conviction.
(Page 6)
Course of the perjury trial
9 The Crown commenced its evidence by calling Mr Garry Tibbs to describe the shooting and to describe the person he saw running from the scene. He said that he did not see his face, but said that the person was over six foot tall and heavily built. It was the Crown case that this indicated a different person from the appellant.
10 The Crown then used the provisions of s 36 of the Evidence Act which provides that on the trial of a person charged with perjury, a certificate setting out the substance of the indictment and the proceedings of the trial and purporting to be signed by the officer having the custody of the records shall be sufficient evidence of the trial. The Crown, pursuant to this section, tendered a certified copy of the indictment and the examination in chief, cross-examination and re-examination of the appellant at the earlier trial. This transcript became exhibit E. It was read to the jury and then tendered as evidence. Small portions of the cross-examination of the appellant going to his credit and which would have been prejudicial in the current trial were deleted as were his claims of privilige based on self incrimination and his receiving a certificate.
11 The appellant, in that evidence, said that he shot the deceased in the driveway after the deceased had alighted from his vehicle. The appellant said that when the deceased got out of his vehicle he fired a shot to scare the deceased, but the deceased grabbed hold of him by the arm. The appellant said he pulled back and the gun fired a second time. This was the shot from which the deceased, shortly afterwards, died. The appellant said that when the gun went off a second time he then kneed the deceased and hit him and pushed him back against the car door. He said the deceased jumped under the car to try and get away from the appellant. The appellant thought that the deceased had got away, but when the appellant went around to the other side he saw the deceased under the vehicle. He said he grabbed hold of the deceased by the leg to pull him out and the deceased then called to his wife to get an ambulance. He said that Mr Gary Tibbs was not present while this was happening. He said that he said to the deceased "Take some of your own medicine back you dirty mongrel." The appellant said that he then left with the weapon in his hand. He said the reason he acted as he did was because Mr Wayne Tibbs had fired a couple of shots at him a week earlier. The appellant said that he then left the scene and described where he went. He was not aware until the next day that Mr Wayne Tibbs had died.
(Page 7)
12 The Crown, having tendered this transcript, called Detective Sergeant Norrish to describe the gestures made by the appellant whilst giving this evidence at the earlier trial. The Detective Sergeant also gave evidence that four days after the killing he interviewd the appellant, as a suspect, and the appellant told him that the appellant was not present at the scene of the killing. The appellant told him that he was nowhere near the deceased's house and was at a delicatessen in Geraldton. This contradiction was not put to the appellant at the earlier trial and is not referred to in the transcript (Exhibit E).
13 The Crown called other witnesses who were not at the scene but were close enough to hear the two shots. They said that the shots were fired in quick succession whereas the description of the scuffle as given by the appellant in his earlier evidence would suggest that there was a time lapse between the shots. The Crown called technical evidence to show that the shot, which killed the deceased, was fired some metres away and in a manner different from the way described by the appellant.
14 The appellant did not give evidence at the perjury trial, but called Mrs Fay Golightly, the wife of the defendant in the first trial. The Golightlys lived in a house near the deceased's house. Her evidence was that between 9.00 pm and 10.00 pm on 12 January 1996, she and her husband were in bed together when she heard a sound corresponding to the two shots. There was also tendered on behalf of the appellant some meteorological evidence to show that the moon and weather conditions, as described in evidence by Mr Gary Tibbs was wrong.
Whether jury should have been discharged by reason of inadmissible evidence
15 The first ground of appeal refers to the fact that Mr Gary Tibbs, when giving evidence, alluded to evidence which the trial Judge had ruled inadmissible. The ground claims that his Honour erred in not acceding to an application to discharge the jury. The circumstances in which this matter arose were that it was the Crown's intention to lead from Mr Gary Tibbs the fact that he heard the deceased say after the second shot was fired, "John Golightly shot me." This was objected to and the objection was upheld. The evidence Mr Tibbs gave to the jury and which is complained of in the ground was: (AB29)
"What was the time difference between the shots?---Around a second, I suppose, might be less.
(Page 8)
- After the shots, was there any immediate response from your brother?---Yes.
Apart from words, did he exclaim in any way?---Yes. He told me who the murderer was.
No, but - - -?---I'm not saying anyone's name.
No, no. Did he indicate in any way that he had been shot?---Yes. He said, 'I've been shot,' and he told me the murderer's name.
No, no, look just wait. Was there any scream of pain from him?---Yes.
How soon after the shot occurred was there that scream of pain?---Basically straightaway."
16 This evidence was given at about 11.00 am on the first day of the jury's deliberations. At approximately 3.20 pm that day his Honour gave the jury a direction not to use the evidence and to ignore it. He said it had no bearing on their deliberations and that it assisted neither the Crown case nor the accused's case.
17 On the following morning counsel for the appellant applied to his Honour to discharge the jury on the basis that the jury would interpret the evidence concerned as meaning that the deceased named a person other than the appellant and the substance of the excluded evidence, would be before the jury. His Honour refused the application. He said that he was not satisfied that there had been serious damage but whatever damage may have been done had been corrected by his direction to the jury.
18 The submission in support of the ground is that the prejudice was such that it would not have been cured by the direction. I am satisfied the evidence given would, in the circumstances, and having regard to the direction, not have in any way affected the jury's verdict or led to a miscarriage of justice. I consider that it was open to his Honour to conclude that he was not satisfied that there had been serious damage and that any damage could be cured by his direction. I would see no danger of the jury acting on that evidence for a number of reasons. The witness purposely abstained from mentioning the name. It would have been apparent to the jury by what occurred that it was not permissible for the name to be before them. The matter was, in my view, confirmed by the
(Page 9)
- direction given by the trial Judge. It must be assumed that juries will act on directions of law that are given. The most cogent and important evidence before the jury was the direct evidence of Mr Tibbs that the retreating man was of a different build to the appellant. This was evidence for the jury to weigh up and I would see it unlikely that they would be speculating on what the deceased might have said.
19 Ground 2 claims that his Honour made three errors in his charge to the jury. The first is that it is claimed that his Honour inaccurately stated the evidence presented to the jury. The ground, as argued, was that his Honour did not fully state at law what was the evidence the jury could consider. The passage complained of reads:
"The evidence of course is substantially of an oral nature. There is some documentary evidence and very competent documentary evidence such as photographs and reports, meteorology reports, observatory reports, but the evidence is, to a large extent, oral evidence and you will have to evaluate it all."
20 The nature of the submission is that the transcript of evidence at the earlier trial contained in Exhibit E was the appellant's evidence in the present trial and the direction would not have caused the jury to treat and evaluate it as such. It is submitted that in the context of a case where the appellant did not give sworn evidence at his trial, it was vital for the jury to be told that the prosecution, as part of its case, put forward the transcript. It is submitted this should not have been characterised, as merely the formal evidence, which the Crown said, was false. It is claimed the jury should have been told that whilst it was not the same as giving evidence before them so that they could see and hear the evidence that was given, it was nonetheless evidence on the central issue of whether or not the assertion that the appellant shot the deceased was false.
21 It becomes necessary to examine in greater detail the circumstances in which the transcript of the appellant's evidence in the Golightly trial came to be tendered as exhibit E. Counsel for the defence made known to the prosecution, prior to the trial, that he was objecting to the tendering of the transcript and considered that the Crown was limited to reading to the jury that part of the appellant's earlier evidence when he said that he shot Mr Tibbs. Counsel for the Crown submitted to the trial judge that the transcript of the whole of the appellant's evidence at the earlier trial was
(Page 10)
- admissible as the appellant in that transcript describes how he in fact killed the deceased, and what occurred around that time. Counsel said that he intended to submit to the jury that it was not possible for it to have occurred that way. It would be against the evidence of an eye witness and in conflict with circumstantial evidence the Crown was seeking to lead. His Honour ruled that he had no difficulty with admitting such part of the transcript as is relevant to show the evidence of the appellant in the context of the statement the subject of the indictment. His Honour admitted, as exhibit E, the transcript of the examination-in-chief, cross-examination and re-examination of the appellant's evidence at the earlier trial. I have referred to some deletions by reason of their prejudicial nature.
22 It is not now claimed that the evidence was inadmissable. The submissions in support of the ground go to the purpose for which the evidence could be and was in fact used, having regard to the fact that the appellant did not give evidence. However, in order to determine the proper purpose it is necessary to examine why it was admissible. It is fundamental in a perjury trial that the prosecution must prove that the accused person gave the evidence claimed to be false. As was said in the earlier editions of Archbold, "The matter sworn must be proved." (23rd ed, p 1065). I am referring to the earlier editions as they set out specifically the evidence which must be led. The 38th ed (1973) at page 1423 para 3520, in giving instructions states:
"Let an officer from the central office of the Royal Courts of Justice produce the record of the trial at which the perjury is alleged to have taken place; or produce an examined copy thereof."
- It then goes on to say that the prosecutor is required:
"To prove the evidence which the defendant gave upon the trial by the testimony of some person who is present at the trial. It is sufficient for the purpose if the witness states from recollection the evidence which the defendant gave, though he did not take it down in writing. If he cannot say with certainty that it was all the evidence given by the defendant, it is sufficient if he can say with certainty that it was all he gave on that point and that he said nothing to qualify it."
The text goes on to say at para 3521:
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- "It is necessary to prove in substance the whole of what is set out in the indictment as having been sworn by the defendant, and of the evidence connected with it and necessary to explain it; proving part only it seems is not sufficient: R v Jones [1791] Peake 51 170 ER 75; R v Dowlin [1792] Peake 227 170 ER 138."
23 In the latter case Lord Kenyon said, that to convict a man of perjury, he should always require the whole of the evidence to be proved, for a man might explain by one part of his evidence what he had sworn in another.
24 This shows that it was proper to adduce the whole of the transcript. The sole purpose for Mr Hobby giving evidence for the defence in the earlier trial was to prove that it was he who killed the deceased. It would be necessary to tender all the evidence to explain the context of the part referred to in the indictment. It was admissable for a further reason. It was part of the circumstantial evidence relied upon by the Crown that the detail the appellant gave in the earlier trial as to how he killed the deceased was in conflict with other witnesses who were either present or who were nearby and heard the shots fired. It was also in conflict with the technical evidence as to the nature of the shot which killed the deceased. Section 36 of the Evidence Act under the heading "Evidence on trial for perjury and subordination" provides a method of proving the substance of the proceedings of the trial. The Crown in the present trial arranged for the indictment and the transcript to be certified in the manner provided in this section.
25 However the critical question to determine the present ground is the manner in which the jury could use the evidence. The issues before the jury were whether the matter sworn in the earlier trial was false and whether the appellant knew it was false. The truth or falsity of the evidence in the transcript cannot be proved by the transcript itself. It can only be proved by the other evidence adduced at the perjury trial. The critical question was whether the Crown had proved that the evidence in the transcript was false. His Honour put this question with repitition and told the jury more than once that they could not convict the appellant unless they were satisfied beyond reasonable doubt that the evidence was false.
26 His Honour put the issues very clearly throughout his summing up. The passage complained of was not the only reference to the evidence and to the transcript, exhibit E. It was no more than an introduction to a
(Page 12)
- subject his Honour later developed in depth. He made extensive references to the exhibit and how it was to be used. His Honour, when discussing the elements, said that the Crown must prove, beyond reasonable doubt, that the evidence claimed to be false was in fact given by the accused. His Honour said that was not challenged and that the jury would find that element proved. That element was proved by the transcript exhibit E. His Honour then said, "Thirdly, you must be satisfied beyond reasonable doubt that the evidence given by Mr Hobby was false, and this is of course the central issue in this trial. I will come back to this." His Honour then said that the fourth element was that if the jury found that false evidence was given, they must be satisfied that the appellant knew that the evidence he gave was false. His Honour then said, "If you find that he gave false evidence then you may indeed have little difficulty in reaching the finding, beyond a reasonable doubt, that he knew that the evidence was false. So we really come back to the critical element in this trial, was the evidence he gave that he shot Wayne Gordon Tibbs false, was it untrue, was it a lie?" His Honour then said it was not a trial relating to who shot Mr Tibbs or a retrial of Golightly. His Honour said, "The Crown's case is that Mr Hobby lied in that trial when he said that he shot Tibbs."
27 His Honour then went on to say: (AB337)
"You have to be satisfied, beyond a reasonable doubt, if you are to find Mr Hobby guilty of the charge, that he deliberately lied to the court in the course of that trial by making that assertion that he shot Wayne Gordon Tibbs. The evidence that has been presented by the Crown in support of this charge is what we call circumstantial evidence. It is evidence from which the Crown asks you to find a number of facts proved and from those facts that you find to be proved you are to draw inferences, inferential findings, you are to draw conclusions."
28 His Honour then gave a comprehensive direction on circumstantial evidence. His Honour when summing up Mr Tibbs' evidence explained that that was direct evidence.
29 His Honour said that he would take the jury to the facts that the Crown asks the jury to find to be proved. He gave a detailed summary of the evidence in the transcript. His Honour concluded his summary of the transcript in the following manner: (AB340)
(Page 13)
- "Hobby then kneed and pushed Tibbs back. Tibbs fell and went under the car. Hobby said that he did not know he had shot Tibbs. Having that evidence of Hobby, as it's based, the facts that the Crown rely upon and will ask you to find proved, or some of the facts at any rate, to justify an inference, and the only reasonable inference, that Mr Hobby lied when he said he shot Wayne Tibbs, are these - Mr Balodis has spoken about these at length and I think he has added some other facts which you may or may not think important. Don't think that those that I mention are all important, as I say. You are the judges of the facts. I am simply trying to assist you in placing before you at least some of, and I think perhaps most of, the relevant facts which the Crown says support its contention that the only reasonable conclusion to be drawn from the facts which you find to be proved is that Mr Hobby did not shoot Wayne Tibbs."
30 His Honour in this passage made it clear that it was the Crown case that the only reasonable inference open on the evidence was that the appellant lied when he said that he shot the deceased. His Honour, as I shall mention, later repeated the fact that the jury could not convict unless they were satisfied of this.
31 His Honour summarised the evidence of the Crown to show that the evidence in the transcript was false. This was firstly the direct evidence of Mr Tibbs which was in conflict with the detail outlined by the appellant. His Honour then summarised the circumstantial evidence on which the Crown relied to show that the testimony in the transcript was not true. This included witnesses who were not at the scene, but were nearby and who heard the shots in quick succession, which would be in contradiction of the appellant's assertion that there was a struggle between the first shot and the second shot. His Honour then referred to the final matter that three days after the shooting the appellant was interviewed and denied any involvement in the shooting. He said he was at home watching cricket. He went to a deli and returned home to bed. He told the interviewing officers that he did not go to the deceased's residence. His Honour then again asked the jury the question, "Do all of those facts that you find proved lead you to the only reasonable conclusion, the only reasonable conclusion open to you is one that Mr Hobby lied when he said that he shot Wayne Tibbs."
32 His Honour gave a Weissensteinerdirection which is the subject of a later ground of appeal, but he concluded it by saying: (AB346)
(Page 14)
- "…..be very careful not to overlook the fact that Mr Hobby did in fact give evidence as a witness in the trial of John Golightly. He was cross-examined at length and of course the relevant parts of the transcript are before you. You may, indeed you must, have regard to his evidence as he gave it in the Golightly trial and ask yourselves whether the whole of the evidence, that is, the evidence taken as a whole, leaves you with any reasonable doubt of his guilt.
The point that I made earlier that he had not given evidence in this trial before you has meant that you yourselves have not had the advantage of viewing Mr Hobby's demeanour, the manner in which evidence was given, as indeed you have had the opportunity of viewing the other witnesses but simply bear in mind that if the Crown's case is deficient, if it is insufficient, then it cannot be made good by Mr Hobby's absence to give evidence."
33 His Honour then summarised the appellant's case in a passage which I shall later set out when dealing with another ground of appeal. In that he again said that the jury had the transcript and that his case was that the evidence was true. He again summarised the substance of the transcript. In my view, as the appellant did not give evidence, his Honour said all that could be said on the purpose of the transcript, exhibit E, and how it was to be used.
34 His Honour incorporated in his remarks the stance adopted by the appellant's counsel at the trial namely that the appellant maintained the evidence was true. He made it clear that the appellant could not be convicted unless the jury were satisfied on all the evidence that it was untrue. The transcript was submitted for the customary purpose of a perjury trial and it does not become enhanced by the fact that the appellant did not give evidence. It would not be correct at law to say, when the appellant did not give evidence, that the transcript was the appellant's evidence in the current trial. Such a direction would not have assisted the appellant as there was no explanation in the transcript to explain the inconsistencies the Crown were seeking to prove.
Whether defence adequately put
35 The second head of the second ground claiming that his Honour's summing up to the jury was deficient is that his Honour inadequately set out the defence case. His Honour gave a concise address which lasted
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- less than an hour. His Honour said in respect of the defence case: (AB346)
"Now, I turn to Mr Hobby's case. As I told you earlier, you have to view all of the evidence objectively analytically, dispassionately and above all fairly and of course you must view the case that is put forward by Mr Hobby. You have this transcript. His case is that the evidence he gave at Mr Golightly's trial was true, that nothing more need be said. He went round to Tibbs' house to scare Wayne Tibbs and fired a shot, a struggle followed and the shot which next followed and which killed Tibbs was consistent with Tibbs crouching forward, as Dr Cooke has described.
The view of somebody shuffling away that Mr Gary Tibbs has described is, it is put to you, entirely unreliable, having regard to the time of night, the fact that there was cloud cover and no moon, it was a dark night. The injury to Tibbs' left eye is consistent with Hobby's evidence that he struck Tibbs with the gun. The absence of firearm discharge residue, if you accept that evidence, cannot satisfy you beyond a reasonable doubt of Mr Hobby's guilt for it is inconsequential.
The gunshot residue found on the wound and the shirt of Mr Tibbs is, it is put to you, not inconsistent with his version of the incident. It was put to you that the Crown's case is of a circumstantial character. Hobby's evidence at Mr Golightly's trial of course was direct evidence. The evidence of Mrs Golightly is evidence that Mr Golightly did not shoot Tibbs and was not at Tibbs' house that night and that, therefore, Gary Tibbs could not have seen Golightly leave the scene.
The Crown is not saying that Gary Tibbs did see Golightly leave the scene. What Mrs Golightly is saying is that, whatever may be your perception of what the Crown is saying in this case, her husband was not at that scene. Her evidence of course is not that Mr Hobby shot Wayne Tibbs, it is that her husband did not."
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- 151 CLR 1 at 10 where his Honour said that a trial Judge must hold an even balance between the cases of the prosecution and the accused and must fairly direct the consideration of the jury to the matters raised by the accused in his defence. There is no question in my mind in reading the summing up that his Honour did hold such even balance. There is no requirement to repeat what was said by counsel for the defence, having regard to the fact that counsel addressed the jury on the same day.
37 The area where it is submitted that his Honour's charge was deficient is that it is claimed that his Honour ought to have taken the jury through the transcript of evidence at the earlier trial and should have referred the jury to the 40 points of consistency that counsel for defence referred to in his speech to the jury. The first submission is demonstrably without merit. His Honour summarised the transcript on two occasions. He commenced his first summary by saying (AB 339), "You have that evidence before you and I shall put to you a summary of it but don't take that summary as being exclusive".
38 I do not consider that any purpose would have been achieved by his Honour referring to points of consistency. If the appellant was fabricating evidence he would be doing so at a time when the whole of the Crown case in the earlier trial was known, and where it was likely that he would adapt his evidence to fit in with known facts at the scene. The essence of the Crown case was the inconsistency of the evidence sought to be proved false with other evidence led at the trial. Some of the points of consistency referred to by counsel for the defence were brought about by the fact that Mrs Golightly's evidence supported what the appellant said. Mrs Golightly was the only witness to facts called by the appellant. His Honour summarised the essential points of Mrs Golightly's evidence. I consider the defence was put in a balanced and fair manner.
Weissensteiner Direction
39 The third basis in which it is claimed that his Honour erred in his summing up is that his Honour wrongly directed the jury as to the appellant's election not to give evidence in the trial. His Honour made it clear to the jury that they could draw no inference from the fact that the appellant himself did not give evidence, and there could be no objection to this aspect of his summing up. It appeared in argument however that the substance of the complaint to support this ground was that his Honour proceeded to give a direction along the lines considered in Weissensteiner v R (1983) 178 CLR 217. The ground formulated did not cover this, and
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- this resulted in the appellant obtaining leave to add two further grounds. They are:
"3(a) If the learned Trial Judge was wrong in his view as to the use that could be made of Exhibit E then he erred by innocently misleading Defence Counsel and Prosecution Counsel to the effect that the Applicant's previously given evidence could be taken into account by the jury as evidence on the general issue of the circumstances of the shooting of Wayne Tibbs and thereby deprived the Applicant of the option of properly considering an application to re-open the Defence case.
(b) If the learned Trial Judge was right in his view of the use that could be made of Exhibit E then the learned Trial Judge erred in giving a 'Weissensteiner' direction."
41 The first time his Honour expressed a view on the transcript, exhibit E, was prior to the commencement of the trial when his Honour considered the defence's objection to it being tendered. His Honour, in ruling that it was admissible, said that it was relevant to show the evidence of the appellant in the context of the statement the subject of the indictment. This is the clear and conventional purpose at law for evidence of this type and his Honour expressed no other view at that stage. The matter did not come up for consideration again until after each counsel made their closing speeches to the jury.
42 His Honour raised with counsel the possibility that he may give a Weissensteiner direction. He saw the Crown case as being substantially that of a circumstantial character and considered in those circumstances the jury may have some regard to the fact that the accused person had not given evidence. His Honour, in the course of this discussion said that it was a central fact of the Crown's case in the present trial that when
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- interviewed, the appellant told the investigating officers he was somewhere else. The following exchange then occurred: (AB316)
"HIS HONOUR: That in the ordinary way would require explanation. We don't have an explanation. I suppose the best I can do is to say, well, really we don't have an explanation. It would be entirely speculative to think of one, but the jury are quite entitled to take account of the fact that when people are asked if they have killed someone some people would immediately think of an alibi. I don't know.
BOUGHER, MR:Well, I will be saying to the jury, your Honour, that Mr Hobby's evidence was as he gave it in the Golightly trial when he was under oath, and they are entitled to
HIS HONOUR: Yes.
BOUGHER, MR:The fact that he hasn't given evidence here should not be held against him in any shape or form.
HIS HONOUR: I'm sure that's absolutely right."
"HIS HONOUR: The evidence that has been led by the Crown in this trial does persuade me that a Weissensteiner direction is warranted and is appropriate. The jury have not had the opportunity to view the accused in the course of his giving evidence which I understand to be a very important consideration in the evaluation of a person's evidence. That consideration has already been highlighted in this trial by reference to the written word, the transcript of the evidence in the Golightly trial, by the absence within the transcript of Mr Hobby's movements during the particular struggle.
Further consideration is that in this trial evidence has been led through Sergeant Norrish and Superintendent Caporn of an earlier interview with Mr Hobby. That was not a matter that was dealt with in the earlier transcript to any degree and a matter upon which one would expect a jury to look for an
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- explanation and there is no explanation provided. The Crown's case is one of a circumstantial character requiring inferential findings from the facts the jury find to be proved and I shall give the direction accordingly."
44 The interview referred to with Sergeant Norrish and Superintendent Caporn was the interview where the appellant said he was in town and not at the scene at the time of the killing. It was not dealt with at all in the transcript.
45 His Honour, when he gave these reasons, had made it clear that he saw the position as being that there was no explanation by the appellant in the transcript, (exhibit E) or in any other evidence led at the trial. It was also apparent that this was his Honour's view during the discussion which had taken place from the time his Honour first raised the question on the previous day. In the terms of the ground of appeal the appellant had been told all that was necessary to enable him to give consideration to an application to reopen the defence case to enable him to give evidence and to give any explanation he wished to give. There are two further reasons why the first of the new grounds must fail. It is based on the hypothesis that the necessary explanation is to be found in his earlier evidence and he was not given the opportunity to use it. There is in fact no explanation in that evidence in respect of the matters the trial Judge felt the jury may require an explanation. Had there been such an explanation, then different considerations would have applied as to whether or not a Weissensteiner direction should be given. There would be a further reason why the ground must fail, namely that on the facts of this case it would be inconceivable that an accused person who had elected not to give evidence could, after the addresses of counsel, apply to give evidence.
46 It was submitted that this was a case where, for a combination of reasons, the Judge, defence counsel and prosecuting counsel, apparently were not alive to the fact that the evidence at the previous trial could not be used. It would appear to be that it was this submission that caused the new grounds of appeal to be worded in the way they were. This submission is a misapprehension. The trial Judge did not at any stage say that the previous evidence could not be used. I have set out his directions to the jury whereby he directed it could be used. What his Honour said was that the transcript did not contain any explanation to explain the inferences which would arise from the evidence led by the Crown.
47 The next question is whether on the facts of this case the Weissensteiner direction should have been given. This was a case where
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- the Crown was relying on circumstantial evidence. There were a number of areas where it would be open to the the jury to be more ready to draw an adverse inference in the absence of explanation by the appellant. The first area referred to by his Honour in his reasons was that the appellant, four days after the killing, when being interviewed, described what he was doing and where he was and this included driving the investigating officers along the route he took. The effect of the evidence was that he was not within three kilometres of where the killing took place. This contradiction called for an explanation by matters peculiarly within the appellant's own knowledge. The failure to give an explanation would bear on the probative value of such an inconsistency Other areas included the fact that if the sequence of events occurred in the way described by the appellant in the transcript, then there would be a longer interval between the shots than that described by the other witnesses. Other areas included the fact that the forensic evidence did not support the shot being fired in the way originally described by the appellant. The transcript before the jury did not contain any such explanations and the witness called by the appellant did not go in this area. I consider it was open to his Honour to give the direction. As Gleeson CJ said in OGD v R (1997) 98 A Crim R 151, at 158 it is commonly appropiate to instruct a jury that failure to contradict or explain incriminating evidence, in circumstances where it would be reasonable to expect it to be in the power of an accused to do so, may make it easier to accept, or draw inferences from, evidence relied upon by the Crown.
48 It is submitted that the direction by his Honour was deficient in that it did not warn the jury that the appellant may have reasons not to give evidence other than that the evidence would not assist his case. The submission is based on that part of the reasons in Weissensteiner at 228 where it was said in the majority judgment that an accused may have reasons not to give evidence other than that the evidence would not assist his or her case and the jury must bear this in mind in determining whether the prosecution case is strengthened by the failure of the accused to give evidence. In OGD v R Gleeson J said at 158:
"Thirdly, it is ordinarily necessary to warn a jury that there may be reasons, unknown to them, why an accused person, even if otherwise in a position to contradict or explain evidence, remains silent."
49 The direction actually given by his Honour is the present case was: (AB344)
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- "…"As I said, you find what facts are proved from the evidence that you have heard and do all of those facts that you find proved lead you to the only reasonable conclusion, the only reasonable conclusion open to you is one that Mr Hobby lied when he said that he shot Wayne Tibbs. There is one other consideration which you should bear in mind. I said I would come to this. The accused, as you know, has not given evidence in this trial, he has not given evidence before you.
Always remember that he is never required to prove his innocence. His silence can never displace the burden that is upon the Crown to prove his guilt beyond a reasonable doubt. Failure by an accused person to offer an explanation or to give evidence of a particular fact does not of itself prove anything at all, nor does it in any sense corroborate, give support to, the prosecution case. Nevertheless, if you find facts proved from the evidence support an inference that Mr Hobby did not fire the gun that shot Wayne Tibbs and where it is reasonable to expect a denial or explanation or answer, if it is reasonable that such an explanation should be forthcoming, you may take Mr Hobby's failure to give evidence into account in determining whether the inference of guilt should be drawn.
I remind you the burden remains on the prosecution and the accused is under no obligation to give evidence but it is legitimate for you to have regard to the fact that he has given no evidence to add to or explain or vary or contradict the evidence put before you by the prosecution. You should remember that you have no evidence from Mr Hobby given to you in this trial to explain the evidence put before you by the prosecution and this is a case where the truth is not easily ascertainable by the prosecution.
The Crown of course asks you to infer guilt from such facts as it is able to prove to your satisfaction. An inference of guilt, an inference that Mr Hobby lied, may be more safely drawn from the proven facts when Mr Hobby elects not to give evidence of relevant facts which can be easily perceived to be in his knowledge, but bear this clearly in mind: if there is insufficient evidence of the facts from which an inference of guilt could be drawn, a failure by Mr Hobby to testify cannot supply that deficiency, cannot make good the insufficiency of the Crown's case.
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- You must be most careful to remember this, that may draw inferences adverse to Mr Hobby more readily by considering that he, being in a position to deny, explain or answer the evidence against him, has failed to do so. Now, not every case or fact calls for an explanation or contradiction from an accused person. Even if the facts are peculiarly within Mr Hobby's knowledge, the deficiencies in the prosecution case may be such to account for his silence and to account for his relying on the Crown having failed to discharge the burden of proof that is always upon it.
Much depends upon your view of the evidence and you should not take Mr Hobby's failure to give evidence against him, unless the failure is clearly capable of helping you in the evaluation of the evidence. Now, having said all this, be very careful not to overlook the fact that Mr Hobby did in fact give evidence as a witness in the trial of John Golightly. He was cross-examined at length and of course the relevant parts of the transcript are before you. You may, indeed you must, have regard to his evidence as he gave it in the Golightly trial and ask yourselves whether the whole of the evidence, that is, the evidence taken as a whole, leaves you with any reasonable doubt of his guilt."
50 His Honour did not refer to the fact that there may be reasons unknown to the jury why an accused person might not give evidence. There were in this case known reasons advanced on behalf of the appellant as to why he did not give evidence. His counsel in his speech to the jury said:
"The accused man himself hasn't got in the witness box. I would suggest to you that's not really all that surprising when you consider that the accused's evidence that he gave in the Golightly trial is in fact the subject of this charge, the perjury charge. It is the evidence that he gave that you're being asked to consider. There is hardly much point in him going into the witness box and saying the same things to you and let Mr Balodis attack his credibility by getting into the witness box and telling you, 'Yes, I did shoot Wayne Tibbs.' He has already said that under oath of course, under affirmation, in the Golightly murder trial."
51 His Honour very shortly after completing the Weissensteiner direction and when summarising the defence case reminded the jury of
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- this reason when he said: "His case is that the evidence he gave at Mr Golightly's trial was true, that nothing more need be said." His Honour referred to a further reason in the direction itself. This arose from the fact that counsel for the defence in his final address referred to a number of claimed deficiencies in the Crown evidence and laid emphasis on this. His Honour in this context told the jury that even if the facts were peculiarly within the appellant's knowledge, the deficiencies in the prosecution case may account for his silence and to account for his relying on the Crown having failed to discharge the burden of proof that was always upon it. As his Honour emphasised the positive reasons as advanced by the defence for the appellant not giving evidence, I do not consider, on the facts of this case that there was a requirement to explain to the jury that there may be unknown reasons, apart from guilt, why the appellant might not give evidence. This could, if anything, detract from the positive reasons. As his Honour referred in some detail to the other aspects referred to in the majority judgment in Weissensteiner, it would appear to be a deliberate decision on his part to refrain from referring to possible unknown reasons. I would not see any deficiency in the direction.
52 There was a final submission on behalf of the appellant that the trial miscarried by reason of its taking an unexpected course. In my view, it followed a very conventional course. The evidence given at the earlier trial was produced in the manner set out in the Evidence Act. There was produced the evidence connected with what was set out in the indictment and necessary to explain it in a manner referred to in Archbold. There was evidence led with a view to proving that evidence false and the trial Judge stated repeatedly that the jury were required to be satisfied that the evidence was false and they could not convict unless they were so satisfied.
53 I would dismiss the appeal.
54 MURRAY J: I am grateful to have had access to a draft of the reasons for decision published by Pidgeon J. I agree with his Honour that this appeal should be dismissed. I have nothing to add to his Honour's reasons in which he discusses the contention of the appellant that the trial should have been aborted, having regard to the evidence given by the witness Garry Tibbs. The evidence was that the deceased thought he knew who had shot him and he told his brother what he thought before he died. That really told the jury little. For them to be told by the trial Judge, Charters J, that they were to pay no regard to what had been said in my opinion adequately protected the trial process from miscarriage for the reason that,
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- the contrary not being shown, the jury would no doubt have followed the instruction they were given. Nor do I have anything to add to the reasons of Pidgeon J with respect to alleged factual inaccuracies by the trial Judge and with respect to the adequacy with which his Honour set out the defence case.
55 As to the use to which the evidence of what the appellant had said at Golightly's trial could be put, as Pidgeon J has pointed out, this evidence was admitted pursuant to the Evidence Act 1906 (WA), s 36, in the form of an edited version of the transcript of that evidence. But, as s 36 says, in that form the evidence was by itself "sufficient evidence of the trial". That is, it was by statute direct evidence of what Hobby said on his affirmation at the Golightly trial. There was no question of the accuracy of the transcript and as Pidgeon J has observed, the real issue at the perjury trial was whether the appellant's evidence was false. If so, the jury would be required to answer the easier question whether it was knowingly false that the appellant confessed to be the killer of Wayne Tibbs.
56 It was to those questions to which the evidence in the form of the transcript was also said by counsel to go, but that involved questions about the truth of the testimony given by the appellant as recorded in the transcript and as to that, the evidence was clearly hearsay and inadmissible. If it was the case that counsel below did not appreciate that that was the case and so caused the learned trial Judge to tell the jury that they were to have regard to this evidence as presenting the defence case, then that was a more favourable direction than the defence was entitled to and it can not now be said to ground a miscarriage of justice.
57 As to the complaint that Charters J erred in giving a direction in the form upheld by the High Court in Weissensteinerv R (1993) 178 CLR 217, the complaint is that in the circumstance of the appellant's absence from the witness box in this case, it was not appropriate to give the direction. In addition it is argued that if a direction was to be given, "the trial Judge should have directed the jury that there are many reasons why [the applicant] may choose to remain silent and one of those reasons is that he has already said on oath what he knows about the shooting and the transcript of what he had to say about it was already in evidence".
58 In my opinion it was appropriate to give the direction and, being given in the terms outlined by Pidgeon J, there was no error in the content of the direction given by Charters J. In Weissensteiner at 227 Mason CJ, Deane and Dawson JJ spoke of the direction being appropriate in a case, but not in every case:
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- "When a party to litigation fails to accept an opportunity to place before the court evidence of facts within his or her knowledge which, if they exist at all, would explain or contradict the evidence against that party, …."
- Although at 228 their Honours said the question was whether an inference of guilt could be drawn with more safety "when the accused elects not to give evidence on relevant facts which the jury perceives to be within his or her knowledge", at 229 their Honours returned to the formulation that the case was concerned with the situation where "the accused has not offered evidence of any hypothesis or explanation which is consistent with innocence."
59 At 235 Brennan and Toohey JJ spoke of "[t]he limited use which can be made of an accused's failure to testify", but at 236 their Honours spoke of the direction being available "where it is reasonable to expect that, if the truth were consistent with innocence, a denial, explanation or answer would be forthcoming".
60 Here, as has been seen, in truth there was no denial of the Crown case that the circumstantial evidence available would support an inference beyond reasonable doubt that the evidence given by the appellant at Golightly's trial was deliberately false, the evidence in the form of the transcript not being available for this purpose. There was, of course, the arguments presented to challenge the capacity of the circumstantial evidence led by the Crown to support an inference of guilt beyond reasonable doubt, but there was no direct evidence of the truth of the appellant's confession that he was the person who killed Wayne Tibbs. The only evidence he called was that of Mrs Golightly. Her evidence was capable of establishing that Golightly was not the killer, but it was not of course capable of establishing that the appellant was.
61 Whether that was so or not was a matter uniquely within the appellant's knowledge and it was appropriate in the circumstances of this case, in my opinion, that the jury should be reminded of that and invited when they were considering the cogency of the circumstantial evidence called by the Crown, to recall that they had not had the advantage of hearing a story to the contrary from the appellant himself, tested under cross-examination in the witness box. As has been seen, in giving the direction his Honour did not remove from the jury's consideration of where the truth lay, the content of the transcript of the evidence given by the appellant at Golightly's trial. Indeed, his Honour made the very favourable observation that the appellant's case was, "that the evidence he gave at Mr Golightly's trial was true, and nothing more need be said."
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62 As to the appellant's complaint that the trial Judge should have directed the jury that there are many reasons why an accused person may choose to remain silent, I cannot think that such a direction broadly given in such terms would ever be in accordance with the law. As Mason CJ, Deane and Dawson JJ said in Weissensteiner at 228:
"Of course, an accused may have reasons not to give evidence other than that the evidence would not assist his or her case. The jury must bear this in mind in determining whether the prosecution case is strengthened by the failure of the accused to give evidence. Ordinarily it is appropriate for the trial Judge to warn the jury accordingly.
Not every case calls for explanation or contradiction in the form of evidence from the accused. There may be no facts peculiarly within the accused's knowledge. Even if there are facts peculiarly within the accused's knowledge the deficiencies in the prosecution case may be sufficient to account for the accused remaining silent and relying upon the burden of proof cast upon the prosecution. Much depends upon the circumstances of the particular case and a jury should not be invited to take into account the failure of the accused to give evidence unless that failure is clearly capable of assisting them in the evaluation of the evidence before them."
63 It follows that if there are discernible reasons for the accused remaining silent, then the trial Judge should not give the direction if the point is reached where it appears that the accused's failure to give evidence or to place his story before the jury is not clearly capable of assisting in the evaluation of the evidence against him or her. Where the silence of the accused may play such a role in strengthening the capacity of the jury to draw an inference of guilt from the circumstantial evidence available, and it may or may not on the evidence be the case that the accused has a valid reason not to give evidence, then in my opinion the jury should be invited to consider that, and unless they were able to take the view that the available reason or reasons was not to be accepted by them, they should not have regard to the silence of the accused in the way sanctioned by a Weissensteiner direction. But the jury should not be invited to speculate that such reasons, of which they have no knowledge, may exist. The directions given to them must depend upon the circumstances of the case as illuminated by the evidence given at the trial.
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64 That I think was the course taken by Charters J in this case when his Honour adverted to the proposition that the view which might have been taken by the accused was that he could not add by his evidence at trial to the account he had already given as a witness at Golightly's trial. If the jury thought that might provide a reasonable explanation for his silence, they were being instructed that they would not have regard to the absence of the appellant from the witness box when considering the persuasive power of the circumstantial evidence placed before them by the Crown.
65 I too would dismiss the appeal.
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