On appeal from the Supreme Court of Western Australia
Representation:
D Grace QC with M E Marich for the appellant (instructed by Laurie Levy & Associates)
R E Cock QC for the respondent (instructed by Director of Public Prosecutions for Western Australia)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Mule v The Queen
Criminal law – Evidence – Directions to jury – Appellant convicted of having in his possession a prohibited drug with intent to sell or supply it to another – Videotape of police interview with appellant admitted in evidence in which certain admissions were made – Trial judge directed that exculpatory statements were not supported by evidence on oath and did not have the same weight as admissions – Whether the trial judge's direction to the jury as to the weight to be accorded to the statements was correct.
Criminal law and procedure – Right to silence – Appellant did not give evidence at trial – Whether summing-up of the trial judge undermined the appellant's right to remain silent at trial.
Words and phrases – "admissions", "right to silence".
GLEESON CJ, McHUGH, GUMMOW, HAYNE AND HEYDON JJ. Following a trial in the District Court of Western Australia before Judge Fenbury and a jury, the appellant was convicted of having in his possession a prohibited drug with intent to sell or supply it to another. The common name of the drug is ecstasy. The drug was in the form of 27 tablets, with a total weight of 5.5 grams. The appellant, described by the judge on sentencing as a 40 year old man with an extensive criminal history, was sentenced to a term of imprisonment.
The evidence at the trial was brief. The prosecution called a police officer, who gave substantially unchallenged evidence about a videotaped search of the appellant's home during which the ecstasy tablets and other items were found, about certain intercepted telephone conversations to which the appellant was a party during and just after that search, and about an interview with the appellant and his solicitor. The interview, which took place four days after the search, was conducted and recorded pursuant to Pt VIII of the Schedule to the Criminal Code Act Compilation Act 1913 (WA) ("the Criminal Code"). The videotape of the search and the transcripts of the intercepted telephone conversations were received in evidence without objection. The videotape of the interview was also admitted without objection but, with the agreement of counsel, certain parts of it were excised. In the interview, the appellant, and his solicitor, admitted that the tablets were ecstasy tablets and that they belonged to the appellant, but asserted that they were…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Mule v The Queen [2005] HCA 49
Case
[2005] HCA 49
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by the appellant, who had been convicted of possessing a prohibited drug with intent to sell or supply. The central issue arose from a videotape of a police interview with the appellant, which was admitted into evidence and contained both admissions and exculpatory statements.
The legal questions before the Court were whether the trial judge's direction to the jury regarding the weight to be given to the appellant's exculpatory statements was correct, and whether this direction undermined the appellant's right to remain silent at trial, given that he did not give evidence.
The Court, affirming the decision of the Court of Criminal Appeal, held that the trial judge's direction was appropriate. The reasoning was that exculpatory statements made out of court, unlike admissions, have not been made on oath or tested by cross-examination. Therefore, a judge may properly direct a jury that such statements may not carry the same weight as admissions. This principle, supported by English and South Australian authorities, was considered not to infringe upon the right to silence, as the jury was not bound to give less weight to the exculpatory statements but was merely informed of a potential difference in their evidentiary value.
The appeal was dismissed.
Orders
Orders of the court
Appeal dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
HUGH, GUMMOW, HAYNE AND HEYDON JJ
Where evidence is given of out of court statements made by an accused person, there may be no clear distinction between matter that is inculpatory and matter that is exculpatory. A dividing line between incriminating admissions and self-serving assertions may sometimes be difficult, or impossible, to draw. There was, however, no such problem in the present case. The appellant's solicitor made certain that the record of the police interview with his client would show that his client maintained that the ecstasy tablets were for his personal use. By the end of the trial, it was clear that this was the defence case. Possession was not disputed. There was no testimony from the appellant. The defence case was that, having regard to the whole of the evidence, including the evidence tendered by the prosecution showing what was said in the interview, and even allowing for the effect of s 11 of the Misuse of Drugs Act, the prosecution had not established the alleged purpose of supply.The decision of the Court of Criminal Appeal The ground of appeal to the Court of Criminal Appeal was that the passage identified above, of which complaint is now made, involved error which undermined the appellant's right to remain silent at trial, and caused a substantial miscarriage of justice. Templeman J, with whom Wheeler J agreed, found no error in what the trial judge said. He considered it "appropriate to direct the jury that any exculpatory statements made by an accused person in the same interview do not have the same weight as admissions ... [because] ... the exculpatory statements have not been made on oath and have not been tested by cross-examination". He supported this conclusion by reference to the judgment of Cox J, with which White and Perry JJ agreed, in the South Australian case of Spence v Demasi[5]. Cox J, in turn, had referred to the decision of the English Court of Appeal in Duncan[6], which was approved by the House of Lords in R v Sharp[7].[5](1988) 48 SASR 536 at 540.[6](1981) 73 Cr App R 359 at 365.[7][1988] 1 WLR 7; [1988] 1 All ER 65. McLure J also referred to R v Sharp, and pointed out that it was later followed by the House of Lords in R v Aziz[8]. She distinguished between directions on law and comments on the facts. She said the English authorities established that, in the case of what is sometimes called a "mixed" out of court statement which is tendered by the prosecution, while the whole statement should be left to the jury as evidence of the facts, the judge may draw attention, where appropriate, to the different weight they might see fit to give to the exculpatory statements as compared to the admissions. McLure J considered, however, that if the passage complained of were considered in isolation it may have created an erroneous understanding on the part of the jury that, as a matter of law, they were bound to give less weight to the assertions than the admissions. However, she also considered that any such false impression was immediately corrected by the next sentence, and would also have been inconsistent with the wider context of the summing-up. She was satisfied that the jury would not have been left with any impression that they were bound to accord less weight to the self-serving out of court exculpatory statements.[8][1996] AC 41.The arguments in this Court