Kelly v The King

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2023 0137

IAN MAXWELL KELLY	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST, BEACH and BOYCE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	12 April 2024
DATE OF JUDGMENT:	22 April 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 69
JUDGMENT APPEALED FROM:	DPP v Kelly [2023] VCC 993 (Judge Murphy)

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CRIMINAL LAW – Appeal – Conviction – Cultivating a commercial quantity of cannabis – Admissibility of guilty plea entered at committal – Alleged failure of the applicant’s solicitor to explain the necessary mental element of the charge – Whether unfair to admit evidence of guilty plea – Where applicant failed to call solicitor to give evidence on voir dire – No error in failing to exclude evidence of guilty plea – Evidence Act 2008 s 90 – Jones v Dunkel (1959) 101 CLR 298 – Em v The Queen (2007) 232 CLR 67.

CRIMINAL LAW – Appeal – Conviction – Cultivating a commercial quantity of cannabis – Whether prosecutor invited forbidden reasoning from defence failure to call witness – Whether judge failed to correct prosecutor’s error – Jury Directions Act 2015 ss 41, 42.

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Counsel
Applicant:		Mr M D Stanton and Mr J Riordan
Respondent:		Ms S Lenthall
Solicitors
Applicant:	Haines and Polites
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
BEACH JA:

Introduction

At about 9.50 am on 5 November 2020, police executed a search warrant at the applicant’s residential premises in Frankston and located just over 33.6 kilograms of cannabis — a commercial quantity[1] — comprising 1.919 kilograms of dried cannabis, and 79 cannabis plants weighing a total of 31.7 kilograms. Police also located an electricity bypass, permitting the applicant to unlawfully appropriate electricity to supply lighting necessary for the cultivation of cannabis. As a result, police charged the applicant with a number of offences, including cultivating a commercial quantity of cannabis.
[1]A commercial quantity of cannabis is 25 kilograms or 100 plants. See Drugs, Poisons and Controlled Substances Act 1981, Schedule 11, Part 2, column 2.
When the charges laid by police came before the Magistrates’ Court for committal mention on 5 May 2021, the applicant was represented by a solicitor experienced in criminal law. The applicant’s solicitor informed the magistrate that the matter had resolved and the parties were seeking a date for a guilty plea in the County Court. Notably, a charge of trafficking in a commercial quantity of cannabis was withdrawn, and, after amendments were made to the three charges that were to proceed — cultivating a commercial quantity of cannabis, trafficking a drug dependence and theft of electricity — the applicant’s solicitor advised the magistrate that the prosecution summary was accepted.[2] The hand-up brief was then tendered, and the magistrate indicated that there was sufficient evidence to put the applicant on trial.[3] Upon being read the charges, the applicant was asked how he pleaded. The applicant then pleaded guilty to all three charges.
[2]See Criminal Procedure Act 2009 (‘CPA’), s 110(c).
[3]CPA, s 141(4).
Subsequently, an indictment was filed in the County Court charging the applicant with cultivating a narcotic plant, Cannabis L, in a quantity that was not less than the commercial quantity[4] (charge 1); theft of electricity[5] (charge 2); and trafficking in a drug of dependence, Cannabis L[6] (charge 3). By that stage the applicant had engaged new solicitors, and in his defence response to the prosecution opening,[7] the applicant indicated that he would plead not guilty to the first charge — but guilty to charges 2 and 3 — denying ‘that he at any time had the intention to cultivate a commercial quantity of cannabis’.[8]
[4]Drugs, Poisons and Controlled Substances Act 1981, s 72A. The maximum penalty is 25 years’ imprisonment.
[5]Crimes Act 1958, s 74(1). The maximum penalty is 10 years’ imprisonment.
[6]Drugs, Poisons and Controlled Substances Act 1981, s 71AC(1). The maximum penalty is 15 years’ imprisonment.
[7]See CPA, s 183.
[8]For the applicant to be convicted of the charge it needed be shown that his intention was to cultivate not less than a commercial quantity. See R v Bui [2005] VSCA 300; R v Nguyen; DPP Reference (No 1 of 2004) (2005) 12 VR 299; R v Garlick [2006] VSCA 127; R v Garlick (No.2) (2007) 15 VR 388; R v Filipovic (2008) 181 A Crim R 83; R v Page (2008) 183 A Crim R 66; Brooks v The Queen [2010] VSCA 322.
Pre-empanelment, relying on the ‘unfairness discretion’ in s 90 of the Evidence Act 2008 (‘the Act’), the applicant’s trial counsel sought the exclusion of evidence of the applicant’s guilty plea at committal. On 10 May 2023, however, the judge refused to exclude the evidence.[9]
[9]DPP v Kelly [2023] VCC 964 (Judge Murphy) (‘Ruling’).
Arraigned before a jury panel that same day, 10 May 2023, the applicant pleaded not guilty to cultivating a commercial quantity of cannabis (charge 1), but guilty to theft of electricity (charge 2) and trafficking cannabis (charge 3). After a trial of three days’ duration, the jury empanelled to try the applicant found him guilty of the cultivation charge.[10]
[10]At the conclusion of a plea hearing on 14 June 2023, the judge imposed a sentence of four years’ imprisonment on charge 1; six months’ imprisonment on charge 2; and 18 months’ imprisonment on charge 3. Three months of the sentence on charge 2, and nine months of the sentence on charge 3 were ordered to be served cumulatively with the sentence on charge 1, leading to a total effective sentence of five years’ imprisonment, upon which the judge fixed a non-parole period of two years and nine months. The judge also convicted and discharged the applicant on a related summary offence of possessing cartridge ammunition without a permit.
The applicant now seeks leave to appeal against his conviction on charge 1 on the following proposed grounds:
1 When considering the admissibility of the applicant’s plea of guilty at the Magistrates’ Court of Victoria, the trial judge erred in applying Jones v Dunkel (1959) 101 CLR 298 and drawing an adverse inference against the applicant due to his failure to call his former solicitor and/or wife at the voir dire.
2 The trial judge erred when directing the jury about the inferences that could be drawn from the applicant’s plea of guilty at the Magistrates’ Court of Victoria in circumstances where he called no evidence.
In our view, neither ground has substance. Leave to appeal should therefore be refused. Our reasons follow.

The judge’s ruling

Before turning to the submissions advanced by the applicant’s counsel under cover of the first proposed ground, it is convenient to summarise the judge’s ruling refusing to exclude the applicant’s guilty plea at committal.
The judge noted that the applicant’s counsel sought exclusion of the applicant’s guilty plea under s 90 of the Act ‘on the grounds that it would be unfair to him to use the evidence’.[11] Counsel argued ‘that the fault element of the charge cultivating a commercial quantity of cannabis is complex and that [the applicant] did not understand it’; and ‘[i]t would be unfair to lead the evidence in circumstances where he did not fully comprehend that mental element’.[12]
[11]Ruling [2].
[12]Ruling [9].
Having set out a chronology,[13] the judge observed that the applicant was provided with the hand-up brief, and the matter was then the subject of a committal mention ‘when it was envisaged that following a plea of guilty [the applicant] would be committed for a plea hearing in this court’. The judge said that the audio of the committal mention had been tendered before him, and that it demonstrated that the applicant’s solicitor ‘advised that the summary was accepted’. Following acceptance of the summary, the hand-up brief was tendered ‘and the magistrate indicated that there was sufficient evidence to put [the applicant] on trial’. The charges were then read to him and he was ‘invited to plead guilty or not guilty, and further advised that what he stated in response would be recorded’. The applicant ‘then pleaded guilty to the three charges’.[14]
[13]Ruling [4]–[6].
[14]Ruling [8].
The judge next summarised the evidence given by the applicant on the voir dire, noting first that the applicant had given evidence that ‘his wife was present in discussions with the solicitor [named] when he indicated his plea to the magistrate’.[15] According to the applicant’s evidence, the judge noted, the solicitor did ‘not really’ advise him as to the elements of the offence, and the applicant claimed that the solicitor did not tell him what the prosecution needed to prove. The judge said that the applicant maintained he ‘wasn’t happy about the commercial quantity, because I didn’t think we reached that mark’.[16] After summarising other aspects of the applicant’s evidence, the judge set out passages of the prosecutor’s cross-examination, including the following:[17]
Do you understand what a guilty plea was?---Yeah, I do.
Did you understand that when the magistrate asked you?---Well, we thought we were gonna get the amount dropped down so it wouldn’t be commercial. Um, that’s what they were trying to do and, um, she had correspondence with you people.
[15]Ruling [10].
[16]Ruling [12].
[17]Ruling [14].
Next, the judge summarised the submissions of counsel. Counsel for the applicant had submitted that it would be unfair in all the circumstances to lead the evidence of the plea at committal because the applicant ‘maintains that the mental element of the offence had not been explained to him’.[18] The applicant, counsel submitted, did not understand that entering a plea of guilty to the charges was an acceptance of the mental element and he did not know that he had accepted that he’d intended to cultivate 25 kilograms or more of cannabis: ‘It was unfair when he didn’t properly comprehend the mental element and was not able to remember any conversations about it at the time’.[19]
[18]Ruling [16].
[19]Ibid.
The judge noted that the ‘issue of an application to withdraw a plea entered in the Magistrates’ Court has been considered in a number of cases’.[20] He then observed:[21]
In the present case, no evidence has been led from the solicitor, nor from the spouse. No explanation as to their unavailability has been given. In those circumstances I am entitled to draw a Jones v Dunkel [(1959) 101 CLR 298] inference that their evidence would not have assisted [the applicant].
[20]Ruling [18]–[19]. The judge referred to R v Constantinou [2009] VSCA 257 (‘Constantinou’); Weston v The Queen [2015] VSCA 354; Kumar v The Queen [2014] VSCA 102; and Bone v The Queen [1968] Tas SR 194 (NC19).
[21]Ruling [20].
Next, the judge said that the cases he had considered concerning s 90 of the Act ‘have focused on whether an admission is reliable’ (referring to authority).[22] And he said:[23]
In ruling on this matter I have considered the comments noted above in [Bone v The Queen [1968] Tas SR 194 (NC19)].^[[24]] [The applicant] has chosen not to leave [scil, lead] any evidence that would support his evidence that he was under some misapprehension when he entered his plea, after a caution, before the magistrate.
[22]Ruling [21]–[23].
[23]Ruling [24].
[24]We note that Bone v The Queen [1968] Tas SR 194 (NC19) was referred to in Constantinou, [53] n 12, as authority for the proposition ‘that where an accused is represented by counsel, a trial judge is ordinarily entitled to assume that all matters relevant to the decision to plead guilty were explained to him or her’. With respect, that summary of the ratio of the case appears to be incorrect. More accurately, the case appears to be authority for the proposition that, where an accused person is represented by counsel on an application to withdraw a plea of guilty, ‘the trial judge is ordinarily entitled to assume that all matters properly to be considered for the purposes of determining the application [to withdraw the plea] are put before him’ (or her).
Finally, the judge said:[25]
To have the evidence excluded under section 90, [the applicant] carries the burden to satisfy the court that it would be unfair to allow the prosecution to rely on the earlier plea. Given his lack of specificity and vagueness in his recall of what was said to him by his solicitor before he entered the plea in the Magistrate’s Court, he has not satisfied me that he entered the plea in circumstances where he did not understand the elements of the offence.
And the judge also said:[26]
[The prosecutor] argued that would be a gross dereliction of duty by [the applicant’s] solicitor if she did not advise him of the elements of the offences and go through each of the charges with him. He submitted that the evidence of [the applicant] that he did not understand what he was pleading guilty to was unsatisfactory and should not be accepted.
I agree. [The applicant] had been told that he faced a serious charge that would involve a term of imprisonment. His prior convictions indicate that he has been before a court for cultivating cannabis previously. He conceded as noted above that he wanted to move on with his life.
[The applicant] must be taken to have realised that the efforts of his solicitor to have the police withdraw the charge of cultivating a commercial quantity were unsuccessful. When the magistrate asked him for his plea he confidently entered the plea of ‘guilty’. In the absence of evidence of the solicitor that she had misled [the applicant] as to the significance of the plea of guilty I do not accept that he has discharged his onus to have the plea excluded as unfair.
[25]Ruling [25].
[26]Ruling [29]–[31].

Ground 1: The applicant’s failure to call evidence on the voir dire

Submissions of the applicant’s counsel

Under cover of ground 1, counsel for the applicant submitted that, when considering admissibility of the plea of guilty — which is potent evidence of guilt[27] — and the applicant’s evidence on the voir dire, ‘it was an error for the trial judge to draw a Jones v Dunkel adverse inference against the applicant on the basis that his former solicitor and wife were not called by the defence to give evidence’. The applicant’s counsel cited authority bearing upon the inappropriateness of giving a Jones v Dunkel[28] direction in a criminal jury trial,[29] and submitted that the danger of the Jones v Dunkel direction has been recognised by the abolition by s 44 of the Jury Directions Act 2015 (‘JDA’) of the common law rule when directing juries. Counsel submitted that the statutory abolition raises the question of whether (and in what circumstances) it is appropriate to draw a Jones v Dunkel inference against an accused person on a voir dire in a criminal proceeding in the absence of a jury, and when there is an onus on the accused.
[27]Constantinou, [25].
[28]Jones v Dunkel (1959) 101 CLR 298.
[29]Dyers v The Queen (2002) 210 CLR 285, 291 [5] (Gaudron and Hayne JJ) (‘Dyers’); Frengos v The Queen [2012] VSCA 18, [26] (Bongiorno JA, Buchanan JA and Hollingworth AJA agreeing).
The applicant’s counsel submitted that, having regard to the principles that apply in criminal trials conducted with a jury, a Jones v Dunkel inference should not be drawn against an accused person on a voir dire where the accused person bears an onus. In this case, counsel submitted, the applicant gave uncontradicted evidence. A failure to call evidence would not normally give rise to ‘the further inference that the evidence would have exposed facts unfavourable to the party’s case and in support of the opponent, capable of filling gaps in an opponent’s case’. The applicant had terminated the services of his former solicitor. In those circumstances, counsel submitted, it should not have fallen upon him to have been expected to call her to give evidence, given that client legal privilege had been waived by the applicant. The prosecution could have called the former solicitor as a material witness.
Counsel for the applicant also submitted that, whilst relied on by the trial judge, the fact that the applicant has a prior conviction in 2012 for cultivating cannabis simpliciter, so much did not provide a proper basis to conclude that he understood the requisite mens rea of charge 1. Further, counsel submitted that it is unclear why the trial judge felt he could draw an adverse inference on the basis that the applicant’s wife was not called. While the applicant did give evidence that his wife was present at conferences, it was never suggested by the prosecution or the trial judge during the hearing that a failure to call her would result in the drawing of an adverse inference. Further, in the circumstances where she resided with the applicant at the very address where the cultivation occurred, it was possible that the applicant’s wife may have been implicated in the offending.
Finally, counsel submitted that a Jones v Dunkel inference should not have been drawn in this case. The trial judge’s reasons make it clear that the inference was instrumental in the ruling. This constituted an error or irregularity in the trial and resulted in a substantial miscarriage of justice.

Submissions of the respondent’s counsel

Counsel for the respondent submitted that the inference complained of under cover of the first ground was drawn in the context of a voir dire concerned with whether evidence ought to be excluded pursuant to s 90 of the Act. The question was to be determined on the balance of probabilities. Most importantly, on the issue of whether the use of the admission would be ‘unfair’, the applicant bore the onus of proof. On that basis, counsel submitted, the mode of reasoning in Jones v Dunkel could be applied to the applicant’s failure to call other witnesses. It was open to the trial judge to apply the reasoning in Jones v Dunkel in considering whether an inference could be drawn against the applicant that the evidence of the former solicitor or wife would not have assisted the applicant.
The respondent’s counsel submitted that no reasonable explanation was given by the defence as to why the former solicitor was not called. In circumstances where the applicant had numerous conferences with the former solicitor, it is telling that the solicitor was not called. Further, on any view, the applicant’s wife could fairly be expected to be in the applicant’s camp. In all the circumstances, counsel argued, it was open to the trial judge to apply Jones v Dunkel and draw an inference on the voir dire that the evidence of the former solicitor and the applicant’s wife would not have assisted the applicant.

Analysis

Section 90 of the Act permits a trial judge to refuse to admit evidence of an admission[30] adduced by the prosecution if it would be unfair to an accused person to use the evidence. It provides:
[30]Part 1 of the Dictionary to the Act contains the following definition:
admission means a previous representation that is—
(a)made by a person who is or becomes a party to a proceeding (including an accused in a criminal proceeding); and
(b)adverse to the person's interest in the outcome of the proceeding; …
90 Discretion to exclude admissions
In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if—
(a) the evidence is adduced by the prosecution; and
(b) having regard to the circumstances in which the admission was made, it would be unfair to an accused to use the evidence.
Importantly, the burden of demonstrating that it would be unfair to an accused for the prosecution to use the impugned evidence rests on the defence.[31] Moreover, the effect of s 142(1) of the Act is that any facts necessary for deciding whether evidence should be ‘not admitted’ — ‘whether in the exercise of a discretion or not’ — must be proved on the balance of probabilities.[32]
[31]Em v The Queen (2007) 232 CLR 67, 91 [61] (Gleeson CJ and Heydon J).
[32]The effect of s 189 of the Act is that, if the determination of a question whether evidence should be admitted (whether in the exercise of a discretion or not), or evidence can be used against a person, depends on the court finding that a particular fact exists, the question whether that fact exists is to be heard and determined in the jury’s absence.

It is necessary to bear in mind that, on the voir dire, the applicant maintained that his former solicitor had not explained the mental element of the charge of cultivating a commercial quantity of cannabis to him. He asserted that he did not understand that entering a plea of guilty to the charge was an acceptance of the mental element that he intended to cultivate 25 kilograms or more of cannabis. The unfairness for the purposes of s 90 of the Act lay in the fact that he did not comprehend the mental element of the charge because it had not been explained to him by his former solicitor. It was thus unfair to permit the prosecution to use his plea of guilty at committal as an admission that he intended to cultivate a commercial quantity.
In Headland, this Court made clear that s 90 focuses attention on the circumstances in which the impugned admission is made:[33]
By virtue of s 90, a court may refuse to admit evidence of an admission sought to be adduced by the prosecution if, having regard to the circumstances in which it was made, it would be unfair to the accused to use the evidence. As with s 85(2), the focus of s 90 is on the circumstances in which an admission is made. If those circumstances mean it would (not could) be unfair to the accused to use the evidence of the admission, the court has a discretion to refuse to admit the evidence.
[33]Headland (a pseudonym) v The King [2023] VSCA 174, [41] (Emerton P, Priest and Kennedy JJA) (‘Headland’) (emphasis in original).
The same point had been made in Myles, in which this Court made the following observations about the operation of s 90:[34]
[34]DPP vMyles (a pseudonym) (2021) 293 A Crim R 166, 174–6 [25]–[29] (Priest, T Forrest and Walker JJA).
[25]While some of the provisions of pt 3.4 apply to both civil and criminal proceedings, others — including ss 85, 86 and 90 — apply only in criminal proceedings.
[26]In Em, Gummow and Hayne JJ distinguished s 90 from other provisions:[35]
It should be observed that s 90 is cast in a form which differs from ss 84, 85 and 86. These set out rules whereby in stipulated circumstances evidence of certain admissions is not to be admitted. Section 90 empowers the court in a criminal proceeding to refuse to admit evidence adduced by the prosecution of an admission (not expressly limited to an admission by the defendant) where to use the evidence would be unfair to a defendant.
[27]Notably, for the purposes of s 90, the Act leaves unfair undefined. Plainly, however, unfairness must necessarily be a highly fact-specific concept. So much was made clear in Em by Gleeson CJ and Heydon J, who said:[36]
The language in s 90 is so general that it would not be possible in any particular case to mark out the full extent of its meaning. … In any particular case, the application of s 90 is likely to be highly fact-specific. Certainly it is on the facts of this particular case that the result must turn.
[28]As the terms of s 90 make clear, the focus must be upon the circumstances in which the admissions were made, and the way in which those circumstances render use of the evidence at trial to be unfair. Thus, Gummow and Hayne JJ observed:[37]
As pointed out at the commencement of these reasons, the central issue is whether the evidence of admissions should not have been admitted because, having regard to the circumstances in which they were made, it would be unfair to the defendant to use the evidence. That question requires consideration of whether there was identified some aspect of the circumstances in which the admissions were made that revealed why the use of the evidence, at the trial of the person who made the admissions, would be unfair. That is, the focus of s 90 falls upon the fairness of using the evidence at trial, not directly upon characterising the circumstances in which the admissions were made, including the means by which the admissions were elicited, as fair or unfair.
[29]As was also made clear by Gummow and Hayne JJ, s 90 is a safety net provision, only to be invoked after other, more specific, provisions (such as ss 84, 85, 86, 137 and 138) have been considered:[38]
When it is unfair to use evidence of an out-of-court admission at the trial of an accused person cannot be described exhaustively. Unfairness, whether for the purposes of the common law discretion or for the purposes of s 90, may arise in different ways. But many cases in which the use of evidence of an out-of-court admission would be judged, in the exercise of the common law discretion, to be unfair to an accused are dealt with expressly by particular provisions of the Act other than s 90. Thus although the discretion given by s 90 is generally similar to the common law discretion considered in Lee,^[[39]] it is a discretion that will fall to be considered only after applying the other, more specific, provisions of the Act referred to at the start of these reasons. The questions with which those other sections deal (most notably questions of the reliability of what was said to police or other persons in authority, and what consequences follow from illegal or improper conduct by investigating authorities) are not to be dealt with under s 90. The consequence is that the discretion given by s 90 will be engaged only as a final or safety net provision.
[30]The onus of demonstrating that it would be unfair to use the evidence of an admission lies with the accused.[40]
[35]Em v The Queen (2007) 232 CLR 67, 101 [94] (‘Em’).
[36]Ibid 89 [56].
[37]Ibid 103 [107].
[38]Ibid 104 [109].
[39][R v Lee (1950) 82 CLR 133.]
[40]Em, 91 [63] (Gleeson CJ and Heydon J).
In Headland, this Court also said:[41]
As the authorities make clear, the application of s 90 is ‘highly fact-specific’. The focus must be upon the circumstances in which the impugned admission was made, and the way in which those circumstances would render the use of the evidence of the admission unfair to the accused at trial. That is, the focus of s 90 is upon the fairness of using the evidence at trial, not directly upon characterising the circumstances in which the admission was made — including the manner in which it was elicited — as fair or unfair. Consideration must be given to whether there is some aspect of the circumstances in which the admission was made that reveals why it would be unfair to use the evidence of the admission in the trial of the person who made it.
[41]Headland, [43].
As the authorities make plain, unfairness is a highly fact-specific concept. In the present case, the trial judge was required to focus upon the circumstances in which the admission constituted by the plea of guilty was made, and the way in which those circumstances would render the use of that evidence at the applicant’s trial unfair. There had to be some aspect of the circumstances in which the plea of guilty was made that revealed why it would be unfair to use the evidence of the admission constituted by the plea of guilty in the applicant’s trial.
At common law, the general rule as expressed in Dyers, was that a trial judge should not direct a jury in a criminal trial that the accused would be expected to give evidence personally or call others to give evidence.[42] The common law rule has now been replaced in this State by s 41 of the JDA — s 42 also bears on the situation[43] — which permits defence counsel to seek a direction if the accused does not give evidence or call a particular witness. Hence, s 41(2) provides:
[42]Dyers, 291 [5].
[43]Section 42 is set out at [45] below.
(2) In giving a direction referred to in subsection (1), the trial judge must explain—
(a)the prosecution’s obligation to prove that the accused is guilty; and
(b)that the accused is not required to give evidence or call a witness (as the case requires); and
(c)that the jury should not guess or speculate about what might have been contained in—
(i)the evidence that was not given by the accused; or
(ii) the evidence that might have been given by a witness who was not called—
as the case requires; and
(d)that the fact that the accused did not give evidence or call a witness (as the case requires)—
(i)is not evidence against the accused; and
(ii)is not an admission by the accused; and
(iii)must not be used to fill gaps in the evidence adduced by the prosecution; and
(iv)does not strengthen the prosecution case.
Both the rule in Dyers, and the provisions of s 41 of the JDA are, however, limited in scope to the directions to be given to a jury tasked with determining the guilt or non-guilt of an accused person in a criminal trial, where the onus of proving the accused’s guilt lies on the prosecution. In our view, they have no application to the situation in which a trial judge is tasked with determining facts on a voir dire for the purpose of deciding whether it would be unfair in the circumstances of the case to permit the prosecution to adduce evidence of an admission, where the onus of demonstrating that it would be unfair to use the evidence of an admission lies on the accused.
In Kuhl v Zurich Financial Services Australia Ltd, it was explained that the rule in Jones v Dunkel is that the unexplained failure by a party to call a witness may in appropriate circumstances support an inference that the uncalled evidence would not have assisted the party’s case.[44] Failure to call a witness may also permit the court to draw, with greater confidence, any inference unfavourable to the party that failed to call the witness, if that uncalled witness appears to be in a position to cast light on whether the inference should be drawn.[45] The rule permits an inference, not that evidence not called by a party would have been adverse to the party, but that it would not have assisted the party.[46]
[44]Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361, 385 [63] (Heydon, Crennan and Bell JJ).
[45]Ibid 385–6 [63].
[46]Ibid 386 [64].
The font of the supposed unfairness in the present case was the alleged failure of the applicant’s former solicitor to explain the necessary mental element of the charge of cultivating a commercial quantity of cannabis. Apart from the applicant, those who were in the best position to provide evidence as to whether the mental element of the charge was explained to the applicant were, first, his former solicitor, and, secondly, his wife, who attended all conferences with the solicitor. Both potential witnesses were ostensibly competent and compellable — client legal privilege had been waived with respect to the solicitor, and no issue of spousal privilege arose with respect to the applicant’s wife — yet no explanation was forthcoming as to why they were not called. In those circumstances, given that the critical fact relied upon by the applicant to establish the supposed unfairness was the failure of the former solicitor to explain the mental element of the charge to him, we consider that it was open to the judge to infer that the evidence of the applicant’s solicitor and his wife would not have assisted him in proof of the assertion that the mental element of the charge was not explained to him.
As the passage of cross-examination set out above indicates,[47] and the discussion before the magistrate makes clear, the applicant entered his plea of guilty at a time when he must have been fully aware that his former solicitor had been unsuccessful in having the prosecution abandon the allegation that the applicant cultivated more than a commercial quantity of cannabis. A charge of trafficking in a commercial quantity of cannabis was withdrawn — the applicant must have understood that this was on the basis that the prosecution could not establish that he had trafficked a commercial quantity — and there was discussion between the prosecutor, defence counsel and the magistrate which made it plain that the applicant intended to plead guilty to cultivating a commercial quantity of cannabis based on the contents of the hand-up brief.
[47]See [11] above.
Moreover, the applicant entered his plea after, first, having heard the magistrate announce that he would be committed for trial in the County Court on three offences with which the applicant was charged (including cultivating not less than a commercial quantity of cannabis); secondly, after having been informed by the magistrate that he could plead either guilty or not guilty,[48] and that he had a right to plead not guilty; and, thirdly, after having been cautioned that his plea would be recorded and might be given in evidence when he appeared before a judge. That having occurred, when asked by the magistrate whether he was guilty or not guilty, the applicant answered, ‘Yes, your Honour, guilty’.
[48]He was also informed that the sentencing court may take into account a plea of guilty and the stage in the proceeding at which the plea or an intention to plead guilty is indicated. See CPA, s 144(1).
Given these circumstances, we agree with the judge’s finding that the applicant ‘must be taken to have realised that the efforts of his solicitor to have the police withdraw the charge of cultivating a commercial quantity were unsuccessful’; and that, in the absence of evidence from the solicitor from which it might be concluded that the applicant had been ‘misled … as to the significance of the plea of guilty’, the applicant failed to discharge the onus of demonstrating that it would be unfair to use the evidence of the admission constituted by his guilty plea.[49]
[49]See [15] above.
In any event, it seems clear that the judge would have reached the same conclusion on the application under s 90 of the Act without recourse to Jones v Dunkel reasoning. Thus, the judge stated that, given the applicant’s ‘lack of specificity and vagueness in his recall of what was said to him by his solicitor before he entered the plea in the Magistrate’s Court’, the applicant had not satisfied him that the applicant ‘entered the plea in circumstances where he did not understand the elements of the offence’.[50] In our opinion, a fair reading of the applicant’s evidence on the voir dire demonstrates that these conclusions were well-open to the judge.
[50]See [15] above.
The first ground cannot be upheld.

Ground 2: Asserted non-direction on inferences

Under cover of the second ground, the applicant’s counsel argued in effect that the trial judge invited speculation and reversed the onus of proof by failing to give a direction in relation to the applicant not calling evidence on the trial, and by highlighting a submission in the prosecutor’s closing address said to be prohibited by the JDA.
The sole issue at trial was whether the applicant intended to cultivate not less than 25 kilograms of cannabis. An important plank in the prosecution’s case on that issue was the applicant’s plea of guilty at committal. The applicant did not, however, give or call evidence in his defence.
In his final address, the prosecutor focused largely on the applicant’s knowledge concerning the extent of his cultivation. Among other things, he said:
So, what the prosecution say is that you should infer that [the applicant] knew he had a significant and real chance of growing more than 25 kilograms, and from that, you should draw the inference that that was what he intended. We’ll deal with the plea in the Magistrates' Court.
At the Magistrates’ Court, the [applicant] was represented by his lawyer, [named]. As you’ve been told, the hearing was during COVID restrictions. The [applicant] was online to the Magistrate, and he was online from his lawyer’s office. He was next to [named solicitor]. It's a reasonable inference, isn’t it, that if you are charged and represented by a lawyer, the lawyer in her professional duty, would advise you in detail what each element, the elements of each offence in order for you to be able to properly determine whether you plead guilty or not guilty. It’s not the lawyer's choice. It’s the client's choice. This is what you'd expect and wouldn’t ignore. The Magistrate made it plain to the [applicant] that he could plead guilty or not guilty to all or some or none of the offences. The [applicant] from his lawyer’s office, pleaded guilty. A plea of guilty is an admission by an accused to all the elements of an offence. There’s not any evidence whatsoever that the legally represented [applicant] was not aware, that an element of the offence was an intention to cultivate not less than a commercial quantity.
Your task is an intellectual one, and when I sa[y] ‘intellectual one’ that sounds a bit stuffy. What that means is you must act only on the evidence; you cannot make up evidence and you cannot speculate. There is no evidence that the [applicant] was not aware of an intention to cultivate a commercial quantity was an element of the offence. He’s pleaded guilty to that charge.
Now, in determining the charge and reaching a verdict, you must consider all the evidence. …
In his charge to the jury, the judge gave directions about the applicant’s failure to give evidence, including that the fact that the applicant did not give evidence: ‘does not constitute an admission by him’; ‘may not be used to fill gaps in the evidence led by the prosecution’; ‘does not add or strengthen the prosecution’s case in any way’; and ‘proves nothing at all’. These directions were not impugned by the applicant.
The judge also directed the jury that, before they could use the plea of guilty as an admission, they had to be satisfied, first, that it represented ‘a true acknowledgment of his guilt of cultivating a commercial quantity of cannabis’, and, secondly, that the applicant intended it to be a true acknowledgment of his guilt. The judge then directed the jury as follows:[51]
Now, the prosecution invites you to use [the applicant’s] plea as evidence of his guilt. [The prosecutor] put to you that he is in his lawyer’s office, so you can infer that he was told what are the elements of the offence of the crime of cultivating a commercial quantity of cannabis and after no evidence of what the lawyer told him, that you could infer or conclude that he is in the lawyer's office, they must have discussed the case and that she told him what the elements were and told him what the police were alleging against him and in those circumstances when he was asked, he pleaded guilty.
[51]Emphasis added.
In this Court, the applicant’s counsel submitted that, in the passage from the judge’s charge extracted immediately above, the trial judge then ‘highlighted the submission in the prosecutor’s closing address that the jury could infer, in circumstances where no evidence was called on this issue, that the applicant was told the elements of the offence by his lawyer, and there was no evidence that he was unaware of the elements of the offence’. Counsel contended that these directions ‘invited speculation and reversed the onus of proof in circumstances where the former solicitor and the applicant did not give evidence at trial’, and breached s 42 of the JDA.
These submissions cannot be accepted.
Section 42 of the JDA provides:
42Prohibited statements and suggestions in relation to accused who does not give evidence or call witness
The trial judge, the prosecution and defence counsel (or, if the accused is unrepresented, the accused) must not say, or suggest in any way, to the jury that, because an accused did not give evidence or call a particular witness (as the case requires), the jury may—
(a) conclude that the accused is guilty from that fact; or
(b)use the failure of the accused to provide an explanation of facts, which must be within the knowledge of the accused, to more safely draw an adverse inference based on those facts which, if drawn, would prove the guilt of the accused; or
(c)draw an inference that the accused did not give evidence or call a witness (as the case requires) because that would not have assisted his or her case.

In our opinion, the prosecutor did not invite the jury to reason in a manner forbidden by s 42. Nothing the prosecutor said suggested that the jury could: conclude that the applicant was guilty from the fact that he did not ‘call a particular witness’; use the failure of the applicant to provide an explanation of facts, which must be within his knowledge, ‘to more safely draw an adverse inference based on those facts’; or draw an inference that he did not call a witness ‘because that would not have assisted his or her case’. Indeed, it is clear that the prosecutor made no reference to the applicant’s failure to call his former lawyer or his wife, emphasising that the jury must not speculate.
We consider that, in the passage from his address set out above, the prosecutor would have been understood by the jury to be submitting no more than that, in the absence of any evidence to the contrary, the jury could infer from the fact that the applicant entered the plea when in the former solicitor’s office that the applicant and the solicitor must have discussed the case, and that the solicitor must have told the applicant what the elements were of the charge of cultivating a commercial quantity of cannabis. So understood, that submission, in our view, invited a legitimate form of inferential reasoning. In our opinion, in the absence of evidence to the contrary, in a case such as the present, it might ordinarily be inferred that a lawyer will properly have advised his or her client as to the elements of a given offence before inviting or permitting the client to plead to the charge.
Since the prosecutor’s final address to the jury did not infringe s 42, there was no occasion for the judge under s 7(1)(a) of the JDA ‘to correct a statement or suggestion by the prosecution … that is prohibited by [the] Act’. Certainly there was no error or irregularity in the trial constituted by the prosecutor having made a prohibited suggestion in his final address, or by any failure by the judge to give a corrective direction.
Ground 2 must fail.

Conclusion

Neither ground has substance.
Leave to appeal against conviction must therefore be refused.

BOYCE JA:

The form of reasoning described in Jones v Dunkel has been called ‘plain commonsense’.[52]
[52]Jones v Dunkel (1959) 101 CLR 298, 321.
In the present case I have my doubts that it was correct for the primary judge to have reasoned that:
In the absence of the evidence of the solicitor that she had misled [the applicant] as to the significance of the plea of guilty I do not accept that he has discharged his onus to have the plea excluded as unfair.
Windeyer J in Jones v Dunkel set out the following from Wigmore on Evidence:
The failure to bring before the tribunal some circumstance, document, or witness, when either the party himself or his opponent claims that the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavourable to the party. These inferences, to be sure, cannot fairly be made except upon certain conditions; and they are also open always to explanation by circumstances which made some other hypothesis a more natural one than the party’s fear of exposure. But the propriety of such an inference in general is not doubted.[53]
[53]Jones v Dunkel (1959) 101 CLR 298, 320–321.
The ‘certain conditions’ upon which the relevant inference may be drawn have been described in later cases. For instance, Bray CJ in Smith v Samuels[54] said that the inference could not be drawn if the witness was ‘unavailable’ due, say, to ‘absence or illness’ or lack of competence.[55] Bray CJ went on to observe that:
at least no unfavourable inference should be drawn from his [the witness’] absence, when there are strong reasons for not calling him other than the falsehood of the story he might be expected to confirm, such as the hostility to the party or, I would say, jeopardy or grave prejudice to the witness himself.[56]
[54](1976) 12 SASR 573, in dissent in the result (‘Smith’).
[55]Ibid 581.
[56]Ibid.
Assuming it was open to infer that the applicant feared to call his solicitor, was it open safely to infer that this fear was some evidence that the solicitor would have exposed facts which would confirm the falsehood of the applicant’s story in circumstances where

it was known that the applicant had terminated the solicitor’s services and he was alleging that the solicitor had failed in her duty properly to advise him prior to the entry of his plea thereby causing his plea to be entered on a basis that was misconceived?

It seems to me that it might not be open to draw this inference if it was equally open to infer that the applicant feared that the solicitor would expose facts that would do other than confirm the falsehood of the applicant’s story, that is to say, he feared that the solicitor would not tell the truth about what advice she had given to him. It seems to me that, as a matter of ‘plain commonsense’, it might not be entirely irrational for the applicant to have feared this in the circumstances that he described.
In the end, it is unnecessary for me to reach a concluded view as to these matters because, like Priest and Beach JJA, I consider that it is plain that the primary judge would have rejected the applicant’s case even without the need to appeal to Jones v Dunkel–type reasoning. Like their Honours, I am of the opinion that this approach was open. As the primary judge found:
To have the evidence excluded under section 90, [the applicant] carries the burden to satisfy the court that it would be unfair to allow the prosecution to rely on the earlier plea. Given his lack of specificity and vagueness in his recall of what was said to him by his solicitor before he entered the plea in the magistrates Court, he has not satisfied me that he entered the plea in circumstances where he did not understand the elements of the offence.
I agree with what Priest and Beach JJA conclude concerning ground 2.
For these reasons I would grant leave to appeal but dismiss the appeal.

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[2024] VSCA 69

22 April 2024