James Paul Seivers v The Queen
[2010] ACTCA 9
•18 May 2010
JAMES PAUL SEIVERS v THE QUEEN
[2010] ACTCA 9 (18 May 2010)
CRIMINAL LAW – appeal against verdict and conviction – whether the jury verdict was unsafe and unsatisfactory – reasonable doubt experienced by the court could not be dispelled even having regard to the jury’s advantage in seeing and hearing the evidence – circumstantial evidence – whether the evidentiary circumstances bear no other reasonable explanation – no compelling reason to reject reasonable explanation advanced by defence – jury verdict unsafe and unsatisfactory – appeal upheld
CRIMINAL LAW – appeal against verdict and conviction – whether Crown Prosecutor’s comments invited the jury to discount the evidence of the co-accused based on his interest in securing his acquittal – undesirability of a direction about an accused person’s interest in the outcome of a case – whether a miscarriage of justice had occurred – insufficient direction given by trial judge to counter Crown Prosecutor’s comments – fairness of trial substantially compromised – appeal upheld
Australian Security Intelligence Organisation Act 1979 (Cth), s 18(2)
Crimes Act 1900 (ACT), s 407
Davies and Cody v The King (1937) 57 CLR 170
M v The Queen (1994) 181 CLR 487
Martin v Osborne (1936) 55 CLR 367
Robinson v R (1991) 180 CLR 531
Stafford v R (1993) 67 ALJR 510
Asquith v R (1994) 72 A Crim R 250
De Rosa v Western Australia (2006) 162 A Crim R 344
R v Sullivan [2003] NSWCCA 100 (11 April 2003)
Etherton v Western Australia (2005) 153 A Crim R 64
MAJW v Regina [2009] NSWCCA 255
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 14 - 2009
No. SCC 161 of 2007
Judges: Higgins CJ, Penfold and Ryan JJ
Court of Appeal of the Australian Capital Territory
Date: 18 May 2010
IN THE SUPREME COURT OF THE ) No. ACTCA 14 - 2009
) No. SCC 161 of 2007
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:JAMES PAUL SEIVERS
Appellant
AND:THE QUEEN
Respondent
ORDER
Judges: Higgins CJ, Penfold and Ryan JJ
Date: 18 May 2010
Place: Canberra
THE COURT ORDERS THAT:
The appeal be upheld.
The conviction and sentence imposed by Gray J on 10 June 2009 be set aside.
A verdict of acquittal be entered.
IN THE SUPREME COURT OF THE ) No. ACTCA 14 - 2009
) No. SCC 161 of 2007
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:JAMES PAUL SEIVERS
Appellant
AND:THE QUEEN
Respondent
Judges: Higgins CJ, Penfold and Ryan JJ
Date: 18 May 2010
Place: Canberra
REASONS FOR JUDGMENT
THE COURT:
Introduction
On 6 April 2009, the appellant, James Paul Seivers, pleaded not guilty to an indictment alleging that he had contravened s 18(2) of the Australian Security Intelligence Organisation Act 1979 (Cth) (“the ASIO Act”). The indictment recited:
“That at Canberra in the Australian Capital Territory and elsewhere between about 23 March 2003 and about 5 October 2004 made a communication of information or matter that had come into (his) possession by reason of being an officer of the Australian Security Intelligence Organisation, being information or matter that was acquired or prepared by or on behalf of the said Organisation in connection with its function, or related to the performance by the said Organisation of its functions.”
On 21 April 2009, a jury found the appellant guilty of the offence with which he had been charged and, on 10 June 2009, the trial Judge sentenced him to 12 months imprisonment, 6 months of which was to be served as periodic detention commencing on 12 June 2009. The periodic detention was served.
The Crown alleged that the appellant had been assisted by one Francis Matthew O’Ryan in committing the offence against the ASIO Act. Mr O’Ryan stood trial with the appellant and was also found guilty by the jury. There had been an earlier trial of the appellant and Mr O’Ryan on the same charges in May 2008, at the end of which the jury had been discharged after failing to agree on a verdict.
It was not disputed that, on 1 October 2004, Mr O’Ryan had mailed to four different newspapers, including “The Australian”, copies of three documents, one of which was an ASIO “Internal Minute” dated 20 August 2002. Nor was it disputed that each of the three documents constituted “information or matter that was acquired or prepared by, or on behalf of” ASIO “in connection with its function” within the meaning of s 18(2) of the ASIO Act. That sub-section provides:-
“If a person makes a communication of any information or matter that has come to the knowledge or into the possession of the person by reason of his or her being, or having been, an officer or employee of the Organisation or his or her having entered into any contract, agreement or arrangement with the Organisation, being information or matter that was acquired or prepared by or on behalf of the Organisation in connection with its functions or relates to the performance by the Organisation of its functions, other than a communication made:
(a)to the Director-General or an officer or employee of the Organisation:
(i)by an officer or employee of the Organisation—in the course of the duties of the officer or employee; or
(ii)by a person who has entered into any such contract, agreement or arrangement—in accordance with the contract, agreement or arrangement;
(b)by a person acting within the limits of authority conferred on the person by the Director-General; or
(c)with the approval of the Director-General or of an officer of the Organisation having the authority of the Director-General to give such an approval;
the first mentioned person is guilty of an offence.
Penalty: Imprisonment for 2 years.”
The appellant had been an ASIO officer since about 1997 and was still a serving officer on 1 October 2004. It was accepted that the documents in question (which apparently had some relevance to the October 2002 Bali bombings) had come into his possession by reason of his being or having been an ASIO officer. It followed that the only question for the jury to resolve was whether the appellant had communicated the documents to Mr O’Ryan and, through him, to “The Australian” and the other newspapers.
The appellant gave evidence at both the earlier trial and the subsequent trial, after which he and Mr O’Ryan were found guilty of the respective charges against them. The effect of the appellant’s evidence was that he had never communicated the subject documents to Mr O’Ryan. The appellant had, some 18 months before the disclosure of the documents, assisted with a Senate inquiry in which the documents had been used. He accepted that he must have brought the documents to his home and stored them there until they were found by Mr O’Ryan. There was independent documentary evidence that a copy of the main document in issue had been made on 22 April 2003 and another copy had been made on 7 May 2003.
It was also established at the second trial that, on 1 October 2004, Mr O’Ryan had gone to the Batemans Bay Post Office where, at 2:59pm, he had purchased the Express Post envelopes in which the documents were later posted to the newspapers. He then went to a Xerox shop next door, where he made copies of each document, and returned to the Post Office about 20 minutes later to mail to the respective addressees the envelopes, each containing a copy of each of the documents.
The evidence at the second trial revealed that each of the appellant and Mr O’Ryan was, on 1 October 2004, in possession of a mobile telephone. Records were tendered in evidence which established that:
(i) at 2:19pm the appellant telephoned Mr O’Ryan, the duration of the call being 56 seconds;
(ii) at 3:02pm Mr O’Ryan rang the appellant, the call lasting for 2 seconds before it was diverted to voicemail;
(iii) at 3:12pm Mr O’Ryan again rang the appellant, when the call also occupied 3 seconds before it was diverted to voicemail;
(iv) at 3:19pm the appellant telephoned Mr O’Ryan, when the call lasted for 97 seconds.
ASIO records tendered at the second trial also established that, on 1 October 2004, the appellant had been inside the ASIO building between 9:48am and 10:10am and that he had returned to the building at 2:38pm after which he had again left it again at 3:18pm.
Mr O’Ryan did not give oral evidence at the second trial but a transcript of his evidence at the first trial was tendered in evidence at the second trial by consent. What follows is a summary of his evidence contained in that transcript.
Mr O’Ryan gave evidence on 27 May 2008 that from May 2004 to December 2004 he occupied two rooms in the appellant’s home in Rivett. At the time Mr O’Ryan had an arrangement with his estranged wife for the shared care of their three-year-old daughter under which they undertook her care week and week about. One room at the appellant’s home was for Mr O’Ryan and one for his daughter.
In late September 2004 he noticed that his daughter had “messed the entire room up. There was snowboarding gear pulled out of the cupboards, a whole heap of papers, her own clothes, a lot of stuff. It was a complete mess.” That prompted Mr O’Ryan to commence cleaning the room “because a lot of the stuff in the cupboard belonged to Jim [Seivers]”. In the course of his cleaning Mr O’Ryan found certain documents some of which attracted his attention. There was a white document box similar to that shown to Mr O’Ryan by his counsel. The documents that attracted his attention “related to the Indonesian area in October 2002. To me they looked to be something that related to the morning before the attacks”. After cleaning the room, he took those documents and “a couple of others that appeared to originate from ASIO” and placed them under the mattress in his own room. He took them because “they made me angry” as, shortly before the Bali bombings, his stepmother and father had been in the area and had frequented the bars which were subsequently blown up.
The other occupants of the house at the time were the appellant and his then partner, Brooke Baysin. On 1 October 2004, Mr O’Ryan took the documents to Batemans Bay without mentioning his possession of them to the appellant or Ms Baysin. He took the documents because:
“As I said, I’d been sitting on them for a while. It was the week before the Federal Election and I decided that – I wasn’t happy with the documents I saw that the people we had in – that we as people had voted in were obviously not letting us as the public know about them. That made me angry and I just thought people should know about it.”
Mr O’Ryan also admitted photocopying the documents which he had taken to Batemans Bay, putting them in Express Post envelopes and posting them. He used his credit card to purchase the Express Post envelopes.
Under cross-examination by Mr Purnell for the appellant, Mr O’Ryan denied any political affiliation. He said that he had travelled to Batemans Bay with a male friend to whom he did not disclose his intention to post the documents. He disavowed any training “in sending off documents so that you don’t have a trail”. He agreed that what he did was “amateur, inept and left a trail”.
Mr O’Ryan also claimed that, before he found the documents in his daughter’s room, he did not know that the appellant was an ASIO employee. He reaffirmed that the appellant played no part in his decision to send the documents to the newspapers.
Mr O’Ryan was cross-examined by Mr Hall for the Crown about having previously seen the contents of the cupboard in his daughter’s room, including the box which had been pulled out of the cupboard by his daughter.
Mr O’Ryan agreed that, on 21 July 2005, with the assistance of his legal advisers he prepared a statement, in effect, to clear the appellant’s name.
Mr O’Ryan was also cross-examined about the extent to which his daughter had “trashed” her room. He claimed to have been concerned to clean up the mess as quickly as possible. He acknowledged replacing some documents in the box after looking at them, after he had seen an ASIO document and was “snooping”. He had recognised only one of the three documents posted at Batemans Bay as specifically referring to ASIO. He had been unaware of the Senate inquiry, which reported on 12 August 2004. He had considered for a few weeks the possibility of leaking the documents but did not confront the appellant about the implications of the documents. He did some relevant Internet research on the computer at the appellant’s house. As an IT engineer he was able to remove traces of his Internet search.
Mr O’Ryan was also cross-examined about an annotation he had made on one of the documents that “Sin spots equals nightclubs”. That had been done several weeks before posting the documents and was not derived from the appellant. Mr O’Ryan had a different political philosophy – more pro-Labor – than that of the appellant who was probably more Liberal. He never discussed Bali with the appellant.
Mr O’Ryan decided on 30 September 2004 to go to Batemans Bay where he stayed with a cousin and, on the morning of 1 October 2004, decided to take the documents from under his mattress and post them. After photocopying the documents, he kept the originals which he burnt on a barbecue once he got to his cousin’s home because “I didn’t want to keep them with me”.
The names of the editors and the addresses of the newspapers to whom the documents were posted had been obtained from the Internet by Mr O’Ryan several weeks before posting the documents. Mr O’Ryan said that the series of telephone calls between him and the appellant on 1 October 2004 was just a coincidence. He denied having called the appellant at 3.02 pm on 1 October 2004 in order to report that he had purchased the Express Post envelopes and was going to photocopy the documents. He claimed to have said nothing to the appellant about his activities at the Batemans Bay Post Office.
When an article appeared in the “Weekend Australian” for 9 October 2004, Mr O’Ryan did not discuss it with the appellant. He first became aware of the police investigation when a search warrant was executed at his home in February 2005. He spoke to the appellant on the same day, revealing what he had done. The appellant was “angry to say the least”, accusing Mr O’Ryan of having acted without his (the appellant’s) knowledge.
In his affidavit furnished at the appellant’s request, Mr O’Ryan did not advert to the innocent content, to which he later attested, of the telephone calls between himself and the appellant on 1 October 2004. Under cross-examination, he explained this omission by saying “I didn’t think it was necessary at the time, I didn’t think of it.” That was despite the appellant having mentioned to him that the investigators regarded the telephone calls as significant. He said that he did not draft the affidavit and denied that his attribution of an innocent content to the telephone calls was a recent invention. He also disclaimed knowledge of what had happened in a Disciplinary Inquiry into the apparent leak of information from ASIO, what the appellant had said to the police, or the Report of the Senate inquiry. He said that he and the appellant had abstained, on independent legal advice, from further discussion of the matter. He denied having agreed with the appellant on the content of the covering description which he attached to the documents before posting them. He claimed to have burnt the original documents because he had written on one of them. He did not consider putting the documents back where he had found them in the appellant’s home.
Grounds of Appeal
The grounds of appeal, as originally stated, were:
1. The jury verdict was unreasonable and could not be supported by the evidence.
2. The verdict was unsafe and unsatisfactory.
3. A properly instructed jury would have entertained a reasonable doubt.
Mr Odgers proposed, on behalf of the appellant, to add a ground of appeal complaining of a prejudicial comment made by the Crown Prosecutor towards the end of his final address to the jury. That comment invited the jury to disregard Mr O’Ryan’s evidence, given in the previous trial, to the effect that he acted alone in leaking the subject documents to the media.
The Crown Prosecutor had commented, in relation to Mr O’Ryan’s evidence asserting that he acted alone in disclosing the subject documents to the media –
“It’s in his interests, it’s in Matthew O’Ryan’s interest to say that.”
He pointed out that:
“he [Mr O’Ryan] can only be convicted if he was acting [for] James Seivers so he can admit his role but deny that portion of it and get that benefit for himself.”
Both witnesses, he asserted, were “inherently incredible witnesses”.
Leave was given to add the Crown Prosecutor’s comments as a ground of appeal.
First three grounds of appeal—unsafe and unsatisfactory verdict
The first three grounds of appeal, set out at [25] above, focused on the jury’s verdict. Those three grounds were, it was conceded, merely different aspects of the same complaint, namely, that the verdict was unsafe and unsatisfactory in that the jury should have entertained a reasonable doubt. The grounds were addressed together in written submissions filed on behalf of the appellant and it is convenient to take the same course in our consideration of the appeal.
Appellant’s argument
The authorities make clear that this Court should set aside a conviction following a jury’s verdict if it is persuaded that the jury has been mistaken or misled. The Court may be so persuaded because the jury’s conclusion is inherently unsatisfactory, or has been reached in an appreciably inappropriate manner; see, for example, Davies and Cody v The King (1937) 57 CLR 170.
In M v The Queen (1994) 181 CLR 487, it was observed in the joint judgment of Mason CJ, Deane, Dawson and Toohey JJ, at 494-5 that;
“In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence [Chamberlain v The Queen [No 2] (1984), 153 CLR, at pp 618-619; Chidiac v The Queen (1991), 171 CLR 432, at pp 443-444]. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty [Chidiac v The Queen (1991), 171 CLR, at pp 443, 451, 458, 461-462]. Although the propositions stated in the four preceding sentences have been variously expressed in judgments of members of the Court in previous cases, we have put aside those differences in expression in order to provide authoritative guidance to courts of criminal appeal by stating the propositions in the form in which they are set out above.”
In the present case, the jury in the second trial did not have the advantage of seeing and hearing the evidence of Mr O’Ryan. Any doubt which this Court may have felt about rejecting that evidence could therefore not have been resolved by the jury having concluded, from the manner in which it was given, that it lacked credibility. Nor is this a case like M v The Queen (supra) where two witnesses gave dramatically opposed accounts of critical events, so that the unshaken appearance of veracity of one account could be used to dispel a doubt about rejecting the other account. Rather, it was accepted by Mr Bellew SC, who appeared for the Crown on the appeal, that “the Crown case was a circumstantial one, requiring the jury to consider the weight to be given to the united force of all the circumstances put together”. The circumstantial nature of the case attracted the application of the principle enunciated in the following terms by Dixon J in Martin v Osborne (1936) 55 CLR 367, at 375:
“If an issue is to be proved by circumstantial evidence, facts subsidiary to or connected with the main fact must be established from which the conclusion follows as a rational inference. In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation.”
The main question on which the inculpation of Sievers depended was whether he had knowingly given to Mr O’Ryan the originals or copies of the three subject documents. The subsidiary or connected matters included the undisputed fact that Sievers and Mr O’Ryan had lived in the same premises.
Mr Odgers in support of the “unsafe and satisfactory” ground submitted that the approximately 18-month gap between the time that the appellant had access to the documents and the time of their unauthorised disclosure was inconsistent with the hypothesis asserted by the Crown, that the removal of the documents from ASIO’s premises had not been inadvertent but had been undertaken with intent to disclose them.
The other plank of the Crown case was that the telephone traffic between Mr O’Ryan and the appellant on the day the documents were posted from Batemans Bay to the media was evidence of the joint purpose of the two men.
Mr Odgers submitted that it was inherently unlikely that Mr O’Ryan would need to obtain instructions from the appellant to obtain an envelope and pay for its delivery. Nor would there be any need for him to report to the appellant that he had done so. Indeed, Mr Odgers contended, Mr O’Ryan’s use of his own credit card was not consistent with him having acted on the instructions of the appellant, a trained ASIO officer, who might well have been anxious to conceal Mr O’Ryan’s involvement because that might in turn have thrown suspicion onto the appellant.
Mr Odgers attacked the Crown case that security at ASIO was such that it was not possible for documents to be removed inadvertently.
The lack of any ASIO stamps on the documents (one was marked “confidential”, the others not marked at all) may have contributed to the appellant’s failure to recognise that the documents were protected from disclosure or that their disclosure might endanger security if released publicly.
The hypothesis that the documents were removed from ASIO by the appellant inadvertently, intermingled with other documents, was not inconsistent with the presence of other ASIO-related documents in the appellant’s spare bedroom which was used by Mr O’Ryan’s daughter. They included documents which, though not directly related to intelligence disclosures, did reveal ASIO operational practices, and were found in the box of documents in the spare bedroom. They would, on their face, have had some intelligence value if released to hostile interests. No case was made or suggested that those documents were removed deliberately or with a view to unauthorised disclosure. These facts undermined the Crown’s assertion that documents could not be inadvertently removed from ASIO.
Respondent’s argument
Mr Bellew SC for the respondent could only assert that the Crown hypothesis of removal of the documents for the purposes of unauthorised disclosure, within two months after their use at the Senate inquiry which the appellant assisted and 18 months before that disclosure, was a more reasonable hypothesis than that asserted by the defence.
Why that should be so, given its inherent improbability, was not explained.
The Crown’s next proposition was that inadvertent removal was itself inherently improbable. The support for this proposition was that the appellant had advanced a theory as to how the documents came to be inadvertently removed but had not done so at the first available opportunity. That was, it was submitted, analogous to recent invention.
The attempt to label that theory as a recent invention was itself wholly implausible. That is, the theory was not put forward as an assertion of what had happened, but simply as a theoretical possibility. As such, it could not accurately be portrayed as an “invention”. Nor was the theory inconsistent with any previous assertion by the appellant.
Even within ASIO the possibility of inadvertent removal of documents could not be discounted so as to reduce that possibility below the level of a reasonable hypothesis. The evidence used to attempt to disprove that hypothesis was not capable of doing so, though, of course, equally the available evidence did not tend affirmatively to establish the hypothesis of inadvertent removal.
Then there was the issue of the phone calls from Batemans Bay on the day of the disclosure. Both accused asserted that the calls had nothing to do with the disclosure being made by Mr O’Ryan. The Crown’s justification for rejecting that claim could only have been the rejection of the evidence of each of the accused.
There was no attack made on Mr O’Ryan’s credibility otherwise than that based on the interest he was asserted to have had in adopting the factual scenario that he put forward in his evidence. That issue is dealt with separately at [54] to [70] below.
It is apparent that, the prosecution having tendered the transcript of Mr O’Ryan’s evidence in the previous trial, there was no basis on the grounds of his demeanour that could be advanced to disregard his evidence.
Nor was there any compelling reason advanced to dismiss the appellant’s evidence, apart from an assertion which Mr Bellew could not substantiate save by reference to the theory advanced by the appellant to explain the way in which inadvertent removal of the documents could have occurred. The appellant’s suggestion, as we have noted at [44] above, could not provide a good reason to dismiss the appellant’s evidence.
Conclusion—“unsafe and unsatisfactory”
The relevant test for an appellate court is clear.
In M v The Queen (supra), Mason CJ, Deane, Dawson, Toohey and Gaudron JJ affirmed that where, notwithstanding there is evidence sufficient to sustain a verdict of guilty, the appellate court believes that a reasonable doubt that it experiences cannot be dispelled even having regard to a jury’s advantage in seeing and hearing witnesses, it should give effect to that conclusion by setting aside the verdict.
In our view, the prosecution advanced no cogent or compelling evidence to enable the reasonable hypothesis advanced by the defence to be safely rejected.
The only matter that provides any support for the rejection of Mr O’Ryan’s evidence is the interest of Mr O’Ryan and, hence, the accused, in asserting that there had been no common purpose between them. For reasons which follow that is an impermissible support, and the appeal ought to be upheld on the ground that the verdict was unsafe and unsatisfactory.
Crown Prosecutor’s comments on credibility
Appellant’s argument
The comment challenged by the new ground of appeal is set out at [27] above.
In Robinson v R (1991) 180 CLR 531 the trial judge had directed the jury that “you might think ... that the accused had the greatest interest of all the witnesses ... and that, therefore, you should scrutinise his evidence closely”. The accused’s counsel asked the judge to direct the jury that the complainant also had an interest in the outcome. The judge gave that direction.
Notwithstanding the approach taken on behalf of the accused, the Court (Mason CJ, Brennan, Deane, Toohey and McHugh JJ) at 535-6, was firmly of the view that the direction about the accused’s interest struck at the heart of the notion of a fair trial:
“The unfairness of such a direction is manifest, particularly when the outcome of the trial inevitably turned upon the jury’s preference for the evidence of the complainant against that of the accused. Moreover, the directions virtually had the effect that the appellant was to be treated as a “suspect witness” in the same way as an accomplice, a complainant in a sexual case and a young child have been treated as “suspect witnesses”, that is, as witnesses whose evidence is to be accepted only after the most careful scrutiny. (see Reg. v. Hester, [1973] A.C. 296, at pp. 324-325; Longman v. The Queen (1989), 168 C.L.R. 79, at pp. 85, 104-105. An express direction which had the effect of his Honour’s directions would have been a clear misdirection, as Mr Butler, counsel for the Crown, readily accepted. Furthermore, his Honour’s directions on the point do not sit well with the presumption of innocence which is the consequence of a plea of not guilty. If that presumption is to have any real effect in a criminal trial, the jury must act on the basis that the accused is presumed innocent of the acts which are the subject of the indictment until they are satisfied beyond reasonable doubt that he or she is guilty of those acts. To hold that, despite the plea of not guilty, any evidence of the accused denying those acts is to be the subject of close scrutiny because of his or her interest in the outcome of the case is to undermine the benefit which that presumption gives to an accused person.
Nothing in the above is intended to suggest that the evidence of an accused person is not subject to the tests which are generally applicable to witnesses in a criminal trial. Thus, in examining the evidence of a witness in a criminal trial – including the evidence of the accused – the jury is entitled to consider whether some particular interest or purpose of the witness will be served or promoted in giving evidence in the proceedings. But to direct a jury that they should evaluate evidence on the basis of the interest of witnesses in the outcome of the case is to strike at the notion of a fair trial for an accused person. Except in the most exceptional case, such a direction inevitably disadvantages the evidence of the accused when it is in conflict with the evidence for the Crown.”
That the comment in this case emanated from the prosecutor rather than the judge does not mitigate the unfairness of the comment. Section 407 of the Crimes Act 1900 (ACT) (in force until 1971) forbade comment from any source on the failure of an accused to give evidence. Such a comment similarly undermines the presumption of innocence and the burden of proof upon the Crown. The dilemma created by the comment in question here is that it could not be denied that an accused has an “interest” in being acquitted. For defence counsel, all that he or she could do is to plead that such special scrutiny is unfair and ask the trial judge to reinforce that view. All the trial judge could do is to support that assertion.
It is true that in Stafford v R (1993) 67 ALJR 510, Deane, Dawson and Toohey JJ refused special leave to appeal in a case where the trial judge had given such a direction only six months after Robinson was handed down. The Queensland Court of Criminal Appeal has subsequently set aside the original verdict on other grounds. Their Honours did comment, at [510], that if:
“... the circumstances of a particular case are exceptional and require some reference to the accused’s interest in the outcome as a matter of fairness to the accused, it should suffice to inform the jury that they must approach the case on the basis that the accused is presumed innocent of the acts which are the subject of the indictment and it would be wrong and unfair for the jury to discount the evidence of the accused simply for the reason that, as the accused, he or she has a particular interest in the outcome of the trial.”
However, in the present case, there was no comment upon the learned Crown Prosecutor’s remarks by either defence counsel or the trial judge. Indeed, even if they had been noted by defence counsel or the trial judge, the offending remarks would have been difficult to counter.
That difficulty was illustrated by the case of Asquith v R (1994) 72 A Crim R 250, which involved offences arising out of a riot at Bathurst Gaol. The trial judge had repeated a comment of the Robinson kind which had been made by the Crown Prosecutor to the jury.
Hunt CJ at CL (Smart and Badgery-Parker JJ agreeing), upholding the appeal despite the lack of objection at trial, stated, at 260:
“It is true, as the Crown has submitted, that the jury would have been aware of the obvious temptation of an accused person to commit perjury in order to avoid conviction, even without this direction. That temptation, as the Chief Justice remarked in Reeves (at p 11), is only human nature, and the jury will usually be mindful of that fact when considering whether the evidence of the accused raised a reasonable doubt as to the accuracy of the evidence of the Crown witnesses. What the High Court has said in Robinson (No 2), and has underlined in Stafford, is that, where attention is drawn (directly or indirectly) to that basic fact of human nature, it is likely to be understood by the jury as an invitation to discount the evidence of the accused, other than in exceptional circumstances when (it would seem) it is necessary to do so in fairness to the accused, and in those circumstances it becomes necessary to give to the jury the warning described in Stafford.”
In Asquith, there was no such warning given, and there was therefore a substantial miscarriage of justice.
In De Rosa v Western Australia (2006) 162 A Crim R 344, Roberts-Smith JA (McLure and Buss JJA agreeing) explained the undesirability of any direction about the accused’s interest in the outcome of the case as follows (at 355):
“(1)Where an accused gives evidence, even a direction that a jury might take into account the interest of witnesses generally, in the outcome of the case, will infringe the principle, because the accused will always be seen as having the greatest interest in the outcome of the case.
(2)The unfairness lies in the notion that the evidence of an accused may have to be given particular scrutiny because he or she is the accused. That approach undermines the presumption of innocence.
(3)The unfairness will be manifest where there is a conflict between the evidence of an accused and that of prosecution witnesses, and particularly so where the outcome turns on the jury’s preference for the evidence of the complainant against that of the accused.
(4)The prohibition applies to a direction about the interest of a witness in the outcome of the trial; it does not preclude reference to any other interest or motive which a witness (including the accused) may have when giving evidence in the proceedings.
(5)The unfairness flowing from such a direction may not be overcome by otherwise impeccable directions on the onus and standard of proof.
(6)In an exceptional case, where the circumstances require some reference to the accused’s interest in the outcome as a matter of fairness to the accused, it should be sufficient to direct the jury they must approach the case on the basis the accused is presumed innocent of the acts the subject of the charge and that it would be wrong and unfair for them to discount the accused’s evidence, simply because he or she has a particular interest in the outcome of the trial.
(7)The principle is to be rigorously applied and not to be eroded by Courts of Appeal or trial judges failing to faithfully apply the prohibition against the giving of a direction to evaluate the evidence of an accused on the basis of his or her interest in the outcome of the case.”
To similar effect was R v Sullivan [2003] NSWCCA 100 (11 April 2003). The accused’s counsel in that case deposed that he did not seek a direction or redirection due to oversight. It was considered by Buddin J, Smart AJ concurring, that that error rendered the trial unfair (see also Etherton v Western Australia (2005) 153 A Crim R 64).
More recently in MAJW v Regina [2009] NSWCCA 255, the Crown Prosecutor had invited the jury to consider what reason had been shown for the complainant to falsely implicate the accused in contrast with the motive of the accused to lie given his interest in falsely denying guilt. Defence counsel complained of those assertions. The trial judge declined to discharge the jury but promised a “strong direction” on the onus of proof. The direction given was:
“Now members of the jury, you have heard the complainant give sworn evidence in the case. You have also heard the accused give sworn evidence in the case. The evidence of the complainant and the accused is in conflict in relation to many aspects of the case. I point out to you that this case is not a competition between the complainant’s evidence and the accused’s evidence. The issue in this case in respect of each count, is whether the Crown has proven its case against the accused beyond a reasonable doubt.”
No exception was taken to that direction at trial. On appeal, Macfarlan JA pointed out that the comments were objectionable when made by the Crown Prosecutor even if the trial judge did not support them. However, in the circumstances, he considered the fairness of the trial had not been compromised. The appellant had received the benefit of a favourable direction and his counsel had addressed specific reasons why the complainant might lie. The prosecutor had been countering those suggestions which had been raised in the trial.
The respondent’s argument
In the present case Mr Bellew sought to excuse the comment made by the prosecutor, first, on the basis that it was not framed as an attack on the appellant’s credit but on the credit of Mr O’Ryan. However, that, it seems to us, aggravates the situation rather than otherwise. The jury was offered no reason to doubt Mr O’Ryan’s evidence other than his “interest” in avoiding a finding of guilt.
The further difficulty is that if Mr O’Ryan’s evidence were to be discounted in the way the Crown Prosecutor suggested, the evidence of the appellant would be subjected to a similar dismissive scrutiny rather than the independent assessment it deserved. Although this was not a case of a clash of credibility between prosecution witnesses and the accused, that does not make the Crown Prosecutor’s comment any less likely to operate unfairly. Indeed, that circumstance may have had the opposite effect. The appellant might in fact have gained an advantage if defence evidence had been challenged by a less than wholly credible Crown witness.
Mr Bellew further suggested that the trial judge had by his directions cured the vice created by the prosecutor’s comment. The trial judge did say:
“In this case Mr Seivers has given evidence and Mr O’Ryan has not. Mr Seiver’s evidence is to be treated in exactly the same way as any other witness who has been called to give evidence and his evidence must be taken into account as you would with respect to all the other witnesses who have given evidence.”
This did not, however, address the Crown Prosecutor’s objectionable comment. Nor did it equate the evidence of Mr O’Ryan with that of the witnesses who gave oral evidence before the jury. There was a risk that, not being given orally, that evidence might be accorded less weight than it deserved, bearing in mind that it had been sworn testimony subject to cross-examination in the previous trial. Indeed, the opening sentence of the trial judge’s direction might suggest that Mr O’Ryan’s evidence was to be accorded less weight for the reason that it was not given orally before the jury. To that extent, the comment of the Crown Prosecutor not only was not countered by the trial judge but was given tacit support.
Conclusion—Crown Prosecutor’s comments
In those circumstances, the fairness of the trial was substantially compromised [and the appeal should also be upheld on that basis].
Orders
For the reasons set out at [52], [53] and [71] above, the appeal should be allowed. Since we have found not only that the fairness of the trial was compromised but also that the verdict in the trial was unsafe and unsatisfactory, there is no question of ordering a new trial. Accordingly, the appeal is upheld, the conviction and sentence are set aside and a verdict of acquittal is entered.
I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.
Associate:
Date: 18 May 2010
Counsel for the Appellant: Mr S Odgers SC
Solicitor for the Appellant: BevanSnell Lawyers
Counsel for the Respondent: Mr G Bellew SC
Solicitor for the Respondent: Commonwealth Director of Public Prosecutions
Date of hearing: 11 February 2010
Date of judgment: 18 May 2010
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