Mule v The Queen
[2005] HCATrans 254
[2005] HCATrans 254
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Perth No P81 of 2004
B e t w e e n -
PELLEGRINO PAUL MULE
Appellant
and
THE QUEEN
Respondent
GLEESON CJ
McHUGH J
GUMMOW J
HAYNE J
HEYDON J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON WEDNESDAY, 27 APRIL 2005, AT 10.19 AM
Copyright in the High Court of Australia
MR D. GRACE, QC: If the Court pleases, I appear with MS M.E. MARICH for the appellant. (instructed by Laurie Levy & Associates)
MR R.E. COCK, QC: If your Honours please, I represent the respondent. (instructed by Director of Public Prosecutions for Western Australia)
GLEESON CJ: Yes, Mr Grace.
MR GRACE: Your Honours, this appeal raises the important issue of the content of directions or comments a trial judge may give concerning the inculpatory and exculpatory parts of an accused’s out‑of‑court statements where those statements have been tendered as part of and in support of the prosecution case. The issues in the appellant’s trial spanned a short compass. It was a two‑day trial. Possession of the drugs in question was not denied.
The sole issue that was joined was whether or not the appellant had those drugs in his possession with the requisite intent to sell or supply. The drugs in question were 27 ecstasy tablets. The prosecution case was that on 9 August 2001 a house occupied by the appellant’s estranged wife was searched pursuant to warrant. The 27 ecstasy tablets were located in a safe in an ensuite to the main bedroom. The quantity of ecstasy tablets, 5.5 grams, with a purity of 42 per cent exceeded the statutory presumption under section 11 of the Misuse of Drugs Act (WA). That statutory presumption applied in this case because the amount of ecstasy in the possession of the appellant was in excess of 2 grams.
The presumption deemed the possession of the appellant to be accompanied by the intent to sell or supply unless the contrary was proved. There was no evidentiary burden or legal burden on the appellant to prove the contrary, the proof of the contrary was related to the whole of the evidence. When interviewed by the police ‑ ‑ ‑
GLEESON CJ: I am not sure I understand that last statement.
MR GRACE: The successive decisions in Western Australia have held that the words “unless the contrary is proved” as not creating an evidentiary or legal burden upon the accused to prove the contrary. It is whether, on the whole of the evidence adduced in the case, the contrary is proved so in a particular case it may well be that the prosecution’s evidence may prove the contrary if accepted by the jury.
GLEESON CJ: I am sorry, you are not suggesting the prosecution carries the onus.
MR GRACE: The prosecution carries the onus to prove beyond reasonable doubt possession with intent to supply. It is assisted by a deeming provision which allows a jury to find possession with intent to sell or supply unless the contrary is proved.
GLEESON CJ: What is the section?
MR GRACE: Section 11 of the Misuse of Drugs Act (WA).
HEYDON J: Which is on page 25 of your statutory materials.
MR GRACE: Yes, it is. Section 11(a) of the Misuse of Drugs Act 1981 (WA) provides:
For the purposes of
(a) section6(1)(a), a person shall, unless the contrary is proved, be deemed to have in his possession a prohibited drug with intent to sell or supply it to another if he has in his possession a quantity of the prohibited drug which is not less than the quantity specified in Schedule V in relation to the prohibited drug –
An unreported decision of the Court of Criminal Appeal of Western Australia in 1985 has dealt with the issue and it is a case of Singh and Singh v The Queen. It is a decision delivered on 18 September 1985. There, in relation to an impugned direction, at page 12, the members of the Court of Criminal Appeal, Justices Wallace, Brinsden and Olney, in a joint judgment said this at page 13, third line:
A preferable approach is to explain the effect of s 11 by pointing out that proof to the required standard of the cultivation of a number of plants being not less than that prescribed in the schedule (or the possession of a quantity of drugs being not less than the prescribed quantity) is adequate proof of intention to sell or supply to another unless the jury concludes upon the whole of the evidence that it is more probable than not that the accused did not have that intention, and this in effect is how the Judge finally dealt with the case as appears from the passage emphasised in the last quotation.
Indeed, in the appellant’s trial, that is, in effect, how the learned trial judge directed the jury. I will take your Honours to the relevant passages that deal with that issue. It is perhaps best encapsulated by the redirection that occurred upon a jury question at appeal book page 162 and there you will see at line 30 that the jury, in the course of its deliberations, came back with a question. The question was:
Your Honour stated that the defendant is deemed guilty by law unless proved otherwise. Who has to prove otherwise?
His Honour says ‑ ‑ ‑
GLEESON CJ: It is not an unreasonable question.
MR GRACE: No.
The section speaks in terms of a presumption of an intent if the quantity is more than 2 grams unless the contrary is to be proved. The section doesn’t say by whom the contrary is to be proved. So “unless the contrary is proved,” in this particular case, means that that requires you, in this particular case, to look at and weigh up all the evidence that you have, irrespective of its source, and to consider whether the contrary is proved. That is to consider whether, contrary to the presumption because of the weight, on the balance of probabilities the accused had possession of the MDMA for personal use only. Under the Act, because of the weight, you are obliged to presume there was that intent unless possession for personal use only is proved on the balance of probabilities.
And that is how the jury came to consider the issue.
GLEESON CJ: So the standard of proof, the balance of probabilities, is consistent with this being a matter of exculpation. Matters of inculpation are usually required to be established beyond reasonable doubt.
MR GRACE: Yes they are, but there is no legal or evidentiary burden to prove the matter of exculpation, it seems, in Western Australia.
GLEESON CJ: But the standard, according to this summing up, according to this judgment that you referred us to – there is a standard of proof about which juries are directed; that is, to the balance of probabilities.
MR GRACE: Yes.
GLEESON CJ: So that if the jury were completely uncertain, one way or the other, the inculpatory presumption would operate.
MR GRACE: Yes. And that presents in stark relief the directions that his Honour gave in relation to the weight to be afforded to the accused, or the appellant’s statements of exculpation in respect of the intent to sell or supply contained within the record of interview. If I could take your Honours to the record of interview itself, a transcript of which is replicated in the appeal book, although the actual video interview was the exhibit at trial, not the transcript. Your Honour will no doubt be aware that the appellant stood mute at his trial and called no evidence, but relied upon ‑ ‑ ‑
HEYDON J: So the description of exhibit 3 in the index of reference at the front of the appeal book is incorrect, is it? You see, it says:
Exhibits
. . .
“3” – Video of record of interview (edited) –
and then:
Transcript of Video Record of Interview ‑ ‑ ‑
MR GRACE: Yes. What happened was that, rather than play the video interview to your Honours during the course of this appeal, it was agreed with the Deputy Registrar that an agreed transcript would be provided, but the actual video record of interview was not reproduced, obviously.
HAYNE J: The index is correct, is it not, in saying that exhibit 3 was the video?
MR GRACE: Yes, that is correct, but, to assist your Honours, the edited transcript is provided. At page 109 – could I preface what I am about to read by making the following comment. The appellant had with him at the time of the record of interview a solicitor, Mr Gavan Wells, and, quite unusually and quite, in some respects, extraordinarily, he took an active part in the conduct of the record of interview. The police allowed that to occur and your Honours will see in the transcript of the interview which commences at page 102 that peppered throughout the interview are comments made by Mr Wells.
GLEESON CJ: It appears from page 109, line 6 that he is a very agreeable sort of man.
MR GRACE: Yes, he was, and he indicated so much during the course of the whole interview. Could I take your Honours to the issue of the drugs, which appears at line 23. The question was directed to what was seized from the address that was searched and at line 30:
MR WELLS: Yes.
Q. A plastic bag containing a quantity of pink tablets, five yellow metal rings---
A. Oh, yeah.
Q. ---five yellow metal rings; large gold - - gold‑coloured rings.
MR WELLS: What were the tablets again?
Q. Pink tablets. That’s going to be one of my questions. Do you have any idea what those pink tablets are?
A. How many pink tablets?
It is not sure who is making that answer, although it is, on the video, clear that it is the appellant –
Q. There was actually 27. We’ve got a plastic - - plastic bag containing a quantity of pink tablets, but there was 27.
MR WELLS: Are they the only tablets taken? Is there anything else resembling tablets or capsules?
Q. No.
MR WELLS: No. Okay. Fine. Right then.
Q. Can you tell me what those pink tablets are?
A. Check them out.
that is the appellant –
Q. Well, I intend to. I’m just asking you, do you know what they are?
A. No comment.
Q. No comment. All right. Five---
A. That’s that personal use.
Mr Wells makes an explanation and the answer from the appellant was:
That was that thing I was telling you about.
Then there was a suspension of the interview for about ‑ ‑ ‑
GLEESON CJ: Was he asked questions about what the ammunition was for?
MR GRACE: I think he was, your Honour. Sorry, I am instructed he was not.
HEYDON J: He was asked for comments about it, but he said, “No comment”.
MR GRACE: Yes, that is correct, your Honour.
HEYDON J: Page 113, line 29.
MR GRACE: Yes, that is right.
GLEESON CJ: Probably for his personal use.
MR GRACE: At the bottom of the page, after an indication that there had been a brief interlude, Mr Wells says:
Yes. The - - the instructions I received earlier are confirmed, that they are ecstasy tablets for his own personal use.
Q. All right. So you’re telling me that those tablets that we took from the safe were ecstasy tablets; is that correct Paul?
A. Yep.
that is the appellant –
Q. And they were for your own personal use.
A. That’s right.Q. Do you know how many there were?
A. About 22, 23.Q. There was actually 27; would you agree with that if I told you there were 27? That is how many we counted.
A. I thought there would have been about 22.
Then, at the bottom of the page, line 32:
Q. Right. But they belong to you, or you’ve told us---
MR WELLS: Well, for your own personal use they’d be yours, yeah.
A. They’re my - - that’s right; personal use.
GLEESON CJ: Do those gaps indicate that things have been excised from this transcript?
MR GRACE: Yes. What was excised was irrelevant or prejudicial material that did not go before the jury. What your Honours have is a transcript of the edited video that went before the jury and only that.
GLEESON CJ: Was there objection to the part that revealed that there was a loaded Beretta pistol there?
MR GRACE: There were general objections, as I understand it, to various parts, but what was resolved was that this would be the final form of interview and I think, in the end, there may have been agreement between the accused and the prosecution as to what was to be edited.
GLEESON CJ: And there was $40,000 in cash.
MR GRACE: Yes.
HEYDON J: Not quite that much, I think, $30,000-odd?
MR GRACE: Yes, $30,000-odd. There were various explanations given for that – $8,000 belonged to a neighbour and I think, in the end, that was accepted.
GLEESON CJ: Presumably, the $38,000 in cash, the loaded Beretta pistol, the ammunition and the electric stunning device were relevant to suggest that there might have been a commercial aspect to this.
MR GRACE: Yes, the prosecution went to the jury on the basis that those items, other than the drugs, were indicia of some sort of business in trafficking.
GLEESON CJ: Would that be of any relevance if we ever got to that issue about the proviso in this case?
MR GRACE: We expect not, your Honours, because of the nature of the misdirection and its possible effect on the jury verdict. What I have just read to your Honours was the defence case. There was no other defence case. There was no evidence called and he stood mute. The appellant went to the jury on the basis, “Yes, I was in possession, but no, they were for my personal use, I did not have any intent to sell or supply”.
HAYNE J: There is a little more about personal use, is there not, at page 124, line 25, because he is a steroid user? Apparently, the ecstasy has some relevance to that.
MR GRACE: Yes, it was cut off at that answer, yes. It is very hard to decipher, even on the video, what that reference was.
HAYNE J: Is this a video with a running time clock visible, on display, so that the jury would be able to determine that pieces had been excised?
MR GRACE: The jury was certainly able to determine from the video that there were breaks in the video. I do not believe there was a running clock on it.
HEYDON J: The jury were told that it had been edited, on page 29, line 20.
MR GRACE: Yes, they were told that.
HEYDON J: As the video of the search had been played in an edited form.
MR GRACE: Yes, that is right. As to the money, that is referred to at line 30 on page 29 also. During the course of his initial discussions with the police, he, in effect, accused the police of taking some money from his pocket. Now, if I next take your Honours to the directions subsequently given by the learned trial judge to the jury. I have already taken you to the redirection ‑ ‑ ‑
GLEESON CJ: Was there some kind of introductory remark by the judge to the jury about the respective roles of a judge and jury?
MR GRACE: Yes, he did that at page ‑ ‑ ‑
GLEESON CJ: She, is it?
MR GRACE: At page 11 at line 16. His Honour says – after discussing that it is his job to make sure the trial is fair, next paragraph, line 16:
Then at the end of the case it’s my job to sum up the law to you, to tell you what the law is that you must apply, and my task there is to try and do that in as intelligible a way as possible and what I tell you about the law you must accept. You also as a group are judges, but of an entirely different issue. It’s for you to judge the facts. It’s for you to decide what the facts are and you listen to the evidence and you will be required to do that. It is important to realise your power in that regard. It’s entirely up to you what you make of the facts and what facts you decide exist in the case, so we are each judges but in different areas. We each have exclusive power, in a sense, in the area of our involvement.
At the commencement of his ‑ ‑ ‑
HAYNE J: And you get also onus of proof and standard of proof through the rest of page 11 over to page 12, line 8.
MR GRACE: Yes, you do, your Honour. These are all unexceptional, and we do not complain about them. At page 141, at the commencement of his summing up, his Honour says at line 2:
As I explained earlier, this is the last stage of the trial before you will retire to consider your verdict in this matter and now my job is to tell you what the law is that you must apply, and you have to accept what I say about the law even if you disagree with it.
GLEESON CJ: That usual direction about – one that I have always had difficulty understanding myself, but the one that says, “You don’t take any notice of what I say unless you happen to agree with it”.
MR GRACE: Well, that appears at 152 at line 8. This is referring back to what he had said at page 11:
As I mentioned at the beginning of the trial, ladies and gentlemen, and I just realised I didn’t emphasise perhaps again as I should have at the beginning of this address, it’s entirely up to you what you make of the facts. It’s entirely up to you how you view the evidence. The findings that you make about the facts are entirely your business and each of the counsel has put a point of view to you that you can either accept or not.
It’s up to you what you make of the facts and what you decide the facts to be, so if you get any impression from me that I’m subtly suggesting you go one way or the other, put it out of your mind. It has nothing to do with me. It’s your business entirely and I will be doing my best to be right down the middle. If I leave out bits of what the counsel said, that doesn’t mean they are not important. What’s important is what you think is important.
For the sake of completeness, in relation to that first issue that your Honour the Chief Justice raised with me about the deeming provision and the contrary proof, his Honour originally directed on that issue at page 148 at line 10 over to page 149 at line 22. I will not re-read that. And then at 151 at line 23 and at line 28 on 151, the reference to the guns and money is then put in context:
Can I just make some comment about this money that you have heard was found? You will note the prosecution has adduced evidence of finding $27,000 in cash in the safe with the pistol and the stun gun and the drugs. If you conclude the money is related to drug dealing but that it shows nothing more than past drug dealing, then you should ignore it, because the accused is not charged with anything like that. Let me just repeat that. If you conclude the money is related to drug dealing but that it shows nothing more than past drug dealing, then you should ignore, it, but if you are satisfied that it shows the accused was engaged in an ongoing business of dealing in drugs, then the presence of the money is a fact that you may take into account in deciding whether you are satisfied beyond reasonable doubt that he had an intent to sell or supply.
GLEESON CJ: It goes over onto page 153 in the second paragraph.
MR GRACE: Yes, about “money, weapons and drugs”, allowing an inference to be drawn. Now, could I take your Honours to the commencement of the directions that really are directly related to the appeal. At the bottom of page 143 at line 26 his Honour says:
So you’ve heard from two prosecution witnesses and you will have noted that the accused person did not give evidence in this case. He has a right to silence and he exercised the right to silence.
It is important that I tell you that his silence in this case is not evidence against him and does not amount to an admission by him and it cannot be used to fill in any gaps in the evidence tendered by the prosecution if you feel there are some. It may not be used as a makeweight in assessing whether the prosecution has proved its case beyond reasonable doubt. The exercise of a right to silence cannot be held against a person and if you think about it it would be bizarre if the law gave a person a right and then permitted the exercise of the right to be held against the person.
However, you also know that the accused did not totally exercise his right to remain silent when he was interviewed by the police. He could have, if he had wished, not said a word during that process and he did say some things. He had a lawyer there and on occasions he said, “No comment,” but on other occasions either personally or through his lawyer he said things to police and you have the video of the interview. He chose to, in a sense, speak to the police on the occasions that he did and that interview has been put before you as evidence by the prosecution as part of the prosecution case.
In a nutshell that evidence was put before you to prove possession, that is, to prove what occurred, basically, to prove the finding of things, to prove – basically to prove possession because in relation to that you will be aware the accused person admits that the drugs were his so it proves that because the accused admitted it. He admits it. He made what the lawyers called admissions and they are obviously against his interests, in other words he confessed. An admission is a confession. He confessed that he was in possession and as is, I think, pointed out by one of the counsel that was an admission against interest and it is given weight in the system. It is not disputed, of course, that he did possess those drugs.
Now, the video cassette of the interview, given that it has been tendered by the prosecution for the purpose I have just explained, it also, however, becomes material, evidence, for the accused as well as against him; in other words, once it goes in, it can be used for all purposes, legitimate purposes.
Those parts of the interview that are relied on by the prosecution you can accept as being not disputed by the accused and they are, as I have said, admissions, concessions, if you like, made by the accused person, in the sense that I have just explained, against his interests.
But the video also contains other matters that the accused person relies on in his case and he relies on his denials of police allegations and also his assertions, for example, his assertion that he intended only personal use. He relies on those statements in the video. Of course, his denials of police allegations and his assertions, such as his assertion of intending personal use, are disputed by the prosecution.
HEYDON J: Up to that point you do not complain about anything, do you?
MR GRACE: I do not complain about anything. The next paragraph is what we complain about.
HEYDON J: Particularly the first sentence.
MR GRACE: Yes.
The denial – his denials and the assertions that he makes, are not supported by evidence from him on oath in the witness box and therefore those matters do not have the same weight as evidence, as his admissions or confession.
GLEESON CJ: Just before you go past line 2, is there any statutory provision in Western Australia that deals with comment on the fact that an accused person has not given testimony?
MR GRACE: No.
GLEESON CJ: So, a judge in Western Australia is entitled to comment, is he or she, on the fact that an accused has not given evidence?
MR GRACE: Subject to the common law as decided by cases such as Weissensteiner, RPS and Azzopardi and Davis. I want to focus on the word “therefore” in line 3 as being a very important word in the context of the paragraph. That relates back, of course, to the issue of the right to silence and any comments upon its exercise.
GLEESON CJ: I would have thought you would also be emphasising the word three words along from that:
those matters do not have the same weight ‑ ‑ ‑
MR GRACE: Yes, I do.
GLEESON CJ: If we had said, “You may think that those matters should not be given the same weight”, there would be nothing exceptional about it, would there?
MR GRACE: Your Honours may note that in our submissions our preferred submission is that there be no comment and no direction, certainly, in relation to the weight to be ascribed to any part of the interview. It is a matter totally for the jury to consider, along with his Honour’s directions to that effect.
GLEESON CJ: Would not a trial judge be entitled to say, “It is entirely a matter for you, but you might think that those parts of what he said that are exculpatory should not be given the same weight as those parts that are inculpatory”, provided the judge makes it clear that it is ultimately a matter for the decision of the jury and that he is not giving them some instruction on the law?
MR GRACE: That is not our preferred position, I must say, your Honour. We would suggest that the better position for a trial judge to adopt in this particular situation would be to make no comment at all.
HEYDON J: So you do not agree with Justice McLure’s support of Mr Justice Thomas in R v Cox (1986) 2 Qd R 55 to 65? Do you remember she criticised the general trend of authority and said that Mr Justice Thomas’s approach was to be preferred, namely, that there should not be a priori directions to be used in every case, but rather a direction to be tailored for the necessities of each case as it arose?
MR GRACE: There may be room for those comments to apply in a given case, but we would submit not in this case, certainly.
HEYDON J: So your preferred position is that there should not have been any comment, but what is the fallback position? If there were to be a comment what should it be in direct speech?
MR GRACE: Well, in accordance with what his Honour the Chief Justice has just mentioned to me in the course of our dialogue. Your Honours may know of the case of Burns, a 1975 decision of this Court. It’s not referred to in the submissions or on the list of authorities. It is a matter that I only looked into a few minutes before the hearing this morning. That was a decision of this Court, decided in 1975 and is reported in 132 CLR 258. This case concerned a confession and the issue as to whether the confession was true or not. It was an alleged confession to police.
What I seek to draw upon in relation to this case is an analogy between how a trial judge is permitted to direct a jury in the case of a confession when it is made allegedly in a record of interview. Could I take your Honours to page 262 in the joint judgment of his Honour Chief Justice Sir Garfield Barwick and Justices Gibbs and Mason, as they then were. At the second paragraph on that page:
Before passing from this ground it seems desirable, having regard to some observations made in the course of argument, to add the following remarks. The learned judges of the Court of Criminal Appeal, in dealing with another aspect of the matter, stated that:
“the rationale of the rule that admissions are receivable in evidence against the party making them, and are admissible evidence of their truth, is that stated by Parke B. in Slatterie v Pooley where he said: ‘What a party himself admits to be true, may reasonably be presumed to be so.’”
That statement is of course correct and similar observations have not infrequently been made in explanation of the basis on which confessions are admitted in evidence: see, for example, Ross v The King; Sinclair v The King. However, observations of this kind, although they may explain the rational basis for the use of confessional evidence, do not provide any useful guide as to the manner in which such evidence may be used by a jury, and if repeated to a jury would be likely to mislead them. It would be a grave misdirection to tell a jury that there is a presumption that a confession made by an accused person is true. The jury, in deciding whether in the light of all the circumstances of the case they are satisfied of the truth of the whole or part of a confession, must approach that question without the aid of any presumption except that of innocence.
Of course, it is not directly on point, but we would submit that by analogy a directional comment that suggests that less weight be given to an exculpatory statement, not supported by evidence on oath from an accused person, means that a jury approaches the task contrary to the presumption indicated by their Honours.
GLEESON CJ: Did this judge give the jury the usual direction, that they did not have to accept the whole of the evidence of any witness or any one witness, that they could pick and choose between those parts of the evidence they accepted and those parts they rejected?
MR GRACE: Not in those terms, I do not believe, your Honour.
HEYDON J: There would not have been much point in doing so because the policeman did not do much more than prove the videos, then there was an insurance industry person whose evidence may have been cut down in cross-examination but it was not contradicted and then there was no, as it were, primary evidence as to the scene.
MR GRACE: That is right.
GLEESON CJ: That is a common direction in criminal cases, is it not, that the jury are told that not only do they not have to believe the whole of either side’s case, they do not even have to believe the whole of the evidence of any particular witness, that they can select.
MR GRACE: Absolutely, your Honour, yes. If I could just go back to page 145 of the appeal book and to that paragraph and read it in its entirety:
The denial – his denials and the assertions that he makes, are not supported by evidence from him on oath in the witness box and therefore those matters do not have the same weight as evidence, as his admissions or confession, if you like, of possession, for example, against interest, doesn’t have the same evidential weight, but the accused’s denials and his assertions are still matters for you to consider. They are before you and you give them what weight you see fit.
Her Honour, Justice McLure, relied upon that last sentence as, in effect, undermining the adverse impact of the previous sentence. We would submit it does not because the parameters of the qualification contained in the last sentence are set by the contents of that lengthy first sentence.
HAYNE J: What is the vice in the first sentence? What do you say it is?
MR GRACE: Firstly, that it is a direction, not a comment. Secondly, that the use of the word “therefore” has the result of undermining the right to silence coupled with the previous words and the direction, in effect, that the exculpatory statements in the record of interview do not have the same weight as evidence.
GLEESON CJ: What exactly do you mean by the expression “the right to silence”?
MR GRACE: The ability of an accused person in a criminal trial to stand mute.
GLEESON CJ: Yes, that is something different from a legal right to a risk-free silence, is it not?
MR GRACE: Yes, your Honour, I accept that.
GLEESON CJ: Silence can often be risky.
MR GRACE: Yes.
GLEESON CJ: Well, why does it undermine the ability of an accused person to stand mute to say what the judge said here, assuming against your first argument, for the moment, that it was a comment and not a direction?
MR GRACE: Because of the words that appear immediately before it and not supported by evidence from him on oath in the witness box. It is a comment directed to the fact that he exercised his right to silence at the trial and the use of the word “therefore” – therefore, because he exercised his right to silence at the trial “those matters do not have the same weight as evidence, as his admissions”. That is the context in which I put the argument.
HAYNE J: The challenge is not a challenge to the logical coherence of the steps revealed in that direction.
MR GRACE: No.
HAYNE J: It is said to trench upon the ability, if I can use that as the most neutral term, of an accused to stand mute at trial. Does it come to that?
MR GRACE: The effect of his Honour’s direction would have that effect because it would therefore compel an accused person in the position of the appellant to always give evidence lest he suffer a direction of this kind.
McHUGH J: Until statements from the dock were abolished, nobody ever suggested that there was any interference with the right of silence because when an accused person made an unsworn statement the jury was instructed that the statement was not itself evidence in the same sense as the statement of a witness given upon oath and it was not subject in any way to test by cross-examination. No one ever suggested that infringed the right to silence. What is the difference here? In fact, you are in an even worse position. You are relying on an exculpatory statement made out of court.
MR GRACE: Yes, well, it touches upon the comments that Justice Isaacs, as he then was, made in Bataillard (1907) 4 CLR 1282.
McHUGH J: Does the case have any authority? Special leave was rescinded in that case, was it not?
MR GRACE: Yes, it was rescinded, but it has been relied upon subsequently in respect of the comments made by Justice Isaacs at page 1290 over to 1291 and could I take your Honours to point 7 of page 1290. It is referring to section 407 of the Criminal Amendment Act 1883 and commencing with the words:
But in November 1898 ‑ ‑ ‑
McHUGH J: Well, it was 1898, was it not?
MR GRACE: Yes, sorry, 1898 yes, your Honour:
But in November 1898 a short Act was passed, called the Accused Persons Evidence Act 1898 . . . and enacting by sec. 1 that – “It shall not be lawful to comment at the trial of any person upon the fact that he has refrained from giving evidence on oath on his own behalf”. Sec. 407 now contains the enactments of 1898. The legislature appears to have taken the very words “comment” and “refrained” from the Privy Council’s judgment in Kops’ Case and, reading the legislation by the light of that judgment, it appears to me to be plain. A new opportunity had been afforded to a prisoner to establish his innocence if he could. But reasons other than a sense of guilt, such as timidity, weakness, a dread of confusion or of cross-examination, or even the knowledge of a previous conviction, certainly is a summary proceeding, and perhaps in the case of a trial for an indictable offence, might easily prevent the accused person from availing himself of the new means permitted by law. Hence the legislature determined to prevent the enactment, if not used by the prisoner, from being employed as a means of inculpation. This leads me to the conclusion that sub-sec. 2 of sec. 407 is a limitation of the power to comment only so far as relates to the rest of that section, and contains no prohibition regarding sec. 405. It is necessary to bear this distinction in mind. So far as the latter-mentioned section is concerned, the law remains unchanged, and comment may still be made, either that the prisoner has not made any statement as permitted by that section, or that the statement, if made under it, is not on oath, and therefore may not be considered as weighty as the evidence of witnesses under oath. If, however, reference, direct or indirect, and either by express words or the most subtle allusion, and however much wrapped up, is made to the fact that the prisoner had the power or right to give evidence on oath, and yet failed to give, or in other words, “refrained from giving,” evidence on oath, there would be a contravention of the sub-section now under consideration.
GLEESON CJ: Could you come back to that sentence beginning with the words:
So far as . . . the law remains unchanged, and comment may still be made –
and one of the comments that may be made is that the statement “may not be considered as weighty as the evidence of witnesses”.
MR GRACE: Yes.
GLEESON CJ: Now, that observation reflects the longstanding practice, which, I think, remains the practice to the present day ‑ ‑ ‑
MR GRACE: It does.
GLEESON CJ: ‑ ‑ ‑ that provided judges make it clear to the jury that the weight to be given to evidence is entirely a matter for them, judges may comment that they may think that some evidence is deserving of more or less weight than other evidence.
MR GRACE: Yes, that is the case. That remains ‑ ‑ ‑
GLEESON CJ: They do that all the time.
MR GRACE: They do. But the way in which his Honour has done that in this trial highlights the difficulties that such an approach may reveal in a case of this nature. When you read the impugned paragraph at 145, if there was a section existing in Western Australia which paralleled that New South Wales section that I have just referred to in the judgment of Justice Isaacs in Bataillard, that direction would have transgressed that particular section, and it not only alludes to the failure to give evidence on oath, but directly refers to it.
GLEESON CJ: Has there ever been a right in Western Australia to make an unsworn statement from the dock?
MR GRACE: Yes, there has.
GLEESON CJ: But it does not exist at the moment?
MR GRACE: No. Indeed, it does not exist in any Australian jurisdiction, as far as I am aware. Now, your Honours, I referred earlier to page 152 where his Honour referred to that standing direction in relation to facts. Your Honour the Chief Justice raised that issue with me earlier. I want to point out and stress that the direction at 145 is followed by lengthy directions on other matters, before you get to that direction at 152 in relation to the facts. Could I take your Honours to the judgment of the court below and to paragraph 9 in the judgment of his Honour Justice Templeman, which appears at page 176.
GLEESON CJ: By the way, was the trial judge working from a Bench book?
MR GRACE: I am unable to say, your Honour. My instructor was junior counsel at the trial. He is unable to say.
HAYNE J: And there was no exception?
MR GRACE: No exception. At page 176, paragraph 9, his Honour says:
It is to be noted that the appellant characterises the relevant part of the Judge’s charge as a direction, not as a comment. As the High Court said in Azzopardi v The Queen . . . the distinction is important –
and I will not read that quotation; your Honours will be well aware. Paragraph 10:
In this jurisdiction, the distinction is emphasised by s 638 of the Criminal Code, which provides that after the evidence has concluded and the jury has been addressed:
“It is the duty of the Court to instruct the jury as to the law applicable to the case, with such observations upon the evidence as the Court thinks fit to make.”
In the present case, the Judge directed the jury –
and his Honour uses the word “directed”, obviously advisedly, because of his previous comments in paragraphs 9 and 10 –
the Judge directed the jury about five matters relevant to this appeal. They were as follows:
1. The appellant had a right to remain silent.
2. The jury could accept the admissions made by the appellant in the course of the interview with police officers. (Strictly, the Judge should have directed the jury that they could accept the admissions only if satisfied as to their truth and accuracy. Nothing turns on that omission for present purposes.) –
So, therefore, his Honour was attuned to what the High Court had decided in Burns.
3. The video record of interview, having been tendered by the prosecution for the purpose of proving the admissions became evidence in the trial and could be used “for the (appellant) as well as against him”.
4. Because the appellant’s denials and assertions were not made on oath in the witness box they did not have the same evidential weight as his admissions.
5. The weight to be given by the jury to the appellant’s denials and assertions was a matter for them.
Paragraph 12:
Juries are instructed routinely that they should decide the case on the evidence presented to them during the course of the trial, and on nothing else. Where the evidence includes a video record of an interview in which admissions are made by an accused person, it is necessary for the Judge to direct the jury about the use they may make of that evidence. Once that it is done, it is 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. The reason they do not have the same weight is that the exculpatory statements have not been made on oath and have not been tested by cross‑examination.
The comments made by his Honour Justice Templeman that it was appropriate for a judge to “direct the jury” and so on clearly indicate that his Honour concluded that these were directions. Paragraph 13:
The legal explanation for the distinction lies in the fact that although both the admissions and the exculpatory statements are hearsay, evidence of an admission or confession is admissible as an exception to the hearsay rule. The exculpatory statements are also hearsay.
May not that be the seeds of his Honour’s misdirecting himself, that sentence I have just read:
But by long established custom, such exculpatory statements are also admitted into evidence. As Griffiths CJ said in Jack v Smail . . . “that is simply a rule of fair play”. However, the fact that such statements are admitted does not change their character as hearsay.
HEYDON J: Just going back to the statement:
The exculpatory statements are also hearsay.
Do you say that is true or false? You say it is the source of some error, but is it true or false?
MR GRACE: They are admitted for a non‑hearsay purpose. Additions are strictly hearsay.
HEYDON J: You want to prove that your client was using these drugs for his personal consumption.
MR GRACE: Yes.
HEYDON J: That is a question of fact. You want to prove the truth of that fact, therefore, you are relying on the evidence for a hearsay purpose. You want to say it is an exception to the hearsay rule, do you not?
MR GRACE: Yes.
HEYDON J: Therefore, that statement is correct, is it not?
MR GRACE: It is perhaps misleading.
HEYDON J: In what way is it misleading?
MR GRACE: Because it was admissible. The exculpatory statements were admissible for a non‑hearsay purpose.
HEYDON J: What was the non‑hearsay purpose?
MR GRACE: To prove the truth of the facts which they asserted.
GLEESON CJ: That is hearsay.
HEYDON J: That is a hearsay purpose.
HAYNE J: That is a hearsay purpose.
HEYDON J: But there is an exception to the hearsay rule that accommodates it, or arguably so.
MR GRACE: Yes, that is true, but they are in the same category as admissions.
GLEESON CJ: Admissions are an exception to the hearsay rule. Exculpatory statements, if sought to be used for a hearsay purpose, would be caught by the hearsay rule, would they not?
MR GRACE: Purely self‑serving exculpatory statements, for instance, standing alone in a statement without any admissions attaching to it or surrounding it, would not be admissible.
GLEESON CJ: Suppose that the facts were slightly different. Suppose that the police arrived and everything except the assertion that this was for personal use was said during the interview and suppose that the next day, accompanied by Mr Wells, your client had turned up at the police station and had said, “There is something I should tell you about those ecstasy tablets. They were for my own personal consumption”. Would that have gone into evidence?
MR GRACE: No, unless the prosecution sought to rely upon it for any purpose.
McHUGH J: This is what creates the problem, is it not? In principle, the purist’s view, I think, is the only rational view and these problems arise, to a large extent, only because these statements are videotaped. Before videotaping, there would have been nothing to stop a police officer saying, “I spoke to the accused and I said, ‘Do you own these tablets?’ and he said, ‘Yes’”, full stop. Then, if you had sought to cross‑examine the policeman to get something independent in, such as that they were for personal use, it would have been objected to.
This rule about fair play that Sir Samuel Griffith spoke about in Jack v Smail really turns on the fact that it was depositions that used to be put in. After all, it was a deposition that was put in in Jack v Smail and it was put in without objection. In former days it was the accused – and it was a deposition that would be put in evidence, but, unless the exculpatory statement is connected with or intrinsically explains the admission, why, as a matter of principle, should it be got in?
Supposing at the end of this interview, after having made admissions, the police say this, “Anything further you want to say?”, and he says, “Oh, yes, they were for my personal use”. Now, why should that get in?
MR GRACE: The question is whether that is close enough in time, contemporaneous enough to explain the admissions made. After all, that is the theory behind the introduction of section 81 of the uniform evidence legislation, that the liability ‑ ‑ ‑
HAYNE J: It turns on where you start, does it not? If you start from the premise that what you are tendering is a document, or here something analogous to a document, namely, a tape, then you have started on a path where questions of tendering the whole are engaged. If, by contrast, you start from the point of you are tendering evidence of words spoken which are inculpatory then the possibility of severing what has occurred emerges starkly. Where is the correct starting point?
MR GRACE: It is for the prosecution to present all the evidence that it seeks to rely upon in a criminal trial and it makes the choice as to what it tenders or seeks to tender.
HAYNE J: It here sought to tender the tape. The tape was the exhibit and no doubt the jury are not aware, or should have been told, that is the exhibit, not the transcript. The transcript is there simply as an aide memoire for you.
MR GRACE: They were not given the transcript, your Honour.
HAYNE J: No. If you tender a tape, understanding that in this case there was some editing, let us leave that aside, if you have started from the point where you are tendering an item in evidence which will in fact go into the jury room with them, then questions of severance take on a different colour from the colour they wear if you are focused on what the accused said.
MR GRACE: Yes.
HAYNE J: Where is the correct starting point?
MR GRACE: If you go back in time, the correct starting point is perhaps the issue of reliability.
HAYNE J: If you trace hearsay purely to a single starting point of reliability, I think you may be doing history a bit of disservice. Yes, I grew like Topsy.
MR GRACE: I understand what your Honour says but the point is that the rationale for the treatment of exculpatory statements, which accompany inculpatory statements as in this case, of something of less weight, is because of what is believed to be their inherent unreliability as to the truth of the facts that they represent. That is the philosophical or rational basis upon which the rule or the comment has developed.
GLEESON CJ: The point you make about section 81 is interesting. This Evidence Act does not apply in Western Australia, does it?
MR GRACE: No, it does not.
GLEESON CJ: But in the Evidence Act in section 81 now, a clear distinction seems to be drawn between matter that it is necessary to refer to in order to understand an admission, on the one hand, and exculpatory matter, on the other. Is that the way it is applied in practice?
MR GRACE: As I understand, yes. I will just mention, as an aside, that I think four jurisdictions in Australia, out of the eight, adopt the uniform evidence legislation. The difficulty that arises in the criminal law is that where you have a criminal prosecution in the Commonwealth area, against Commonwealth law, the evidence law that is adopted is that of the State or Territory in which the trial is had, so depending on the State or Territory in which the trial is had, you will get possibly different rulings on the admissibility of the type of exculpatory statements that are relied upon.
GLEESON CJ: Hardly a surprising outcome when you bear in mind that people in drug offences are often charged with contravention of both Commonwealth and State laws, and the alternative to the situation you just described would be having different rules of evidence apply to different aspects of the one trial.
MR GRACE: Yes. But it does present potential difficulties, because what might be admissible in one jurisdiction may not be admissible in another.
GLEESON CJ: Which are the four?
MR GRACE: Tasmania, New South Wales, ACT and the Commonwealth. All other States have their own Evidence Acts.
HAYNE J: But the distinction drawn in section 81 is one which is not always easy to apply. Indeed, is not this difficulty of segregating statements a further point that underlies the attitude hitherto taken in relation, for example, to the signed statement. How do you shell out, on the one hand, the exculpatory statements from the inculpatory statements? “I killed the victim.” “I killed the victim because the victim was attacking me with a gun. I responded to the attack by using an automatic weapon.”
MR GRACE: Yes.
HAYNE J: Now, some of those might be seen as exculpatory, some of them may not. The distinction, if adopted, leads to a very awkward middle ground in many cases.
MR GRACE: In our submission, the common law should adopt the trend that is evidenced by the uniform evidence legislation, that is, to allow evidence of previous representation to which it is reasonably necessary to refer in order to understand the admission. Not this case. Imagine a case where a sexual assault is being investigated and the accused is alleged to have had sexual intercourse without consent with the victim. He is asked questions by the police and says, “Yes, I did have sexual intercourse but it was with consent.” Now, do the words “but it was with consent”, is it sufficiently unreliable for that type of statement to be excised as the rationale for excluding statements of a self-serving nature?
GLEESON CJ: Well, you can get even more complex examples. The examples that have been discussed so far are reasonably straightforward, but if you had an interview by an officer from a regulatory authority with a person accused of offences against the Corporations Law, sorting out what is inculpatory and what is exculpatory in that statement could be extremely difficult.
MR GRACE: Yes, that is true. One of the cases discusses cases involving an allegation of duress made by an accused in a record of interview, and quite some details about the duress being given. The issue was is that severable? Should it be severable?
HAYNE J: Is not the point of segregation affected, arguably determined against you, by the introduction into the Code of chapter 60A about videotaped interviews, thus foreclosing, in serious cases – at least, in most serious cases – admission of inculpatory statements otherwise than by tender of the videotape?
MR GRACE: Yes, that is true.
HAYNE J: Now, if that be so, is that statutory regime to be understood as requiring the result that all that is to be put forward is so much of the videotape as the Crown relies upon as constituting a relevant admission by spoken words, acts or otherwise made by the suspect to the relevant interviewing officer?
MR GRACE: The trouble is, in Western Australia, the common law applies to make the exculpatory statements in a case such as the appellant’s admissible if the prosecution tenders it as such. So you have parallel regimes operating, section 60A of the Code and the common law in relation to the admissibility of the evidence.
HAYNE J: Well, does it come then to the point that hearsay is a point of admissibility depending for its operation upon objection being taken, and that if the Crown tenders the whole, the accused does not object, the evidence goes forward, it is hearsay, it is received as evidence of the truth of its contents, but the point is not an absolute one of “This evidence is anathema”?
MR GRACE: No, that is true. There is possibly another basis upon which this evidence was admissible and that is on the Walton type basis that it was a statement of intention on the part of the accused. Could I ‑ ‑ ‑
HAYNE J: I do not know that I would go there, Mr Grace, I really would not go there. I mean, it is a matter for you, but a statement of intention prompted by his solicitor, really.
MR GRACE: Well, perhaps this case is not the best example.
GLEESON CJ: It was not exactly Mr Wells who said it, but it was probably pretty close.
MR GRACE: I draw your attention to Bolton’s Case and its recent adoption, although some doubt may have been seen to be expressed by some members of this Court about its continued correctness in the recent case of Kanleh delivered, I think, in February of this year, but I also refer to section 72 of the uniform evidence legislation, which indicates a possible trend in which the law is developing.
GLEESON CJ: But the evidence – perhaps so as not to foreclose an issue, the information was in that was before the jury.
MR GRACE: Yes.
GLEESON CJ: The jury were informed by the evidence of what went on between the police, your client and Mr Wells that your client said something about the purpose for which he had these tablets. There it was and the question is, “What was the trial judge entitled to tell the jury they could or should do with it?”
MR GRACE: The authorities, as they currently stand, indicate that the trial judge was entitled to comment upon the weight to be afforded to the exculpatory parts of the interview. That is, he was entitled to comment that they carry less weight, but subject, of course, to a rider that the jury is always the final arbiter of the facts. But what his Honour did here was direct the jury as a matter of law. I do not need to go over that again. That is the difficulty.
What his Honour did was to usurp the function of the jury in relation to this crucial issue which, in the end, was the appellant’s only defence, was his complete case, and that complete case was undermined. Justice McLure in her separate judgment and – Justice Wheeler, I should have indicated, agreed with the reasons of Justice Templeman – Justice McLure wrote a separate judgment and at paragraph 30 after referring to the House of Lords in Sharp – perhaps I will read from paragraph 29:
The House of Lords in R v Sharp [1988] 1 WLR 7 approved the reasoning and result in Duncan (supra). However, although the Court expressly approved Lord Lane’s statement set out above Lord Havers (with whom the other members of the Court agreed) said:
“The view expressed in R v Duncan is that the whole statement should be left to the jury as evidence of the facts but that attention should be drawn, when appropriate, to the different weight they might think it right to attach to the admission as opposed to the explanation or excuses.”
The clear inference from this statement is that the weight and relative weight to be accorded to the admission and the exculpatory statements is a matter for the jury. The House of Lords in R v Aziz [1996] AC 41 rejected a Crown attempt to persuade it to reconsider Sharp (supra). The Crown case was that the law as stated in Sharp (supra) unduly favoured defendants who do not testify. Lord Steyn, with whom the other members of the Court agreed, rejected that submission and in so doing referred to a Judge’s entitlement in appropriate circumstances to comment –
her Honour underlined the word “comment” –
adversely on the quality of the exculpatory parts of a mixed statement.
Then, at paragraph 31, and I will not read it, her Honour sets out the statement that your Honour Justice Heydon referred to me earlier of Justice Thomas in R v Cox in Queensland. You will recall there, your Honours, that Justice Thomas, as her Honour Justice McLure said:
was critical of Lord Lane’s statement that it would usually be appropriate for the Judge to point out that the incriminating parts ware likely to be true whereas the excuses do not have the same weight.
The tenor of his Honour’s comments were that there are all sorts of reasons why evidence tendered by the prosecution is likely to be true or not true. The matter is totally within the compass of the jury’s jurisdiction to determine.
At paragraph 32 her Honour goes on to say:
In my respectful opinion, there is merit in Thomas J’s criticism. Further, it is the case that the weight, or relative weight, to be given to the exculpatory portion of a mixed statement is a matter for the jury on which a Judge may comment but not direct.
Then her Honour went on to consider whether the final sentence of that paragraph, and his Honour the trial judge’s directions, which are set out at page 145 corrected, were the incorrect matters referred to as directions in the early part of that paragraph.
GLEESON CJ: Mr Grace, do we know what was said by counsel in address about this topic? I mean by that, I have in mind that it is not unusual, where an accused person stands mute, for trial counsel to grasp that nettle in address and to say to the jury, “The reason my client didn’t give evidence is because his case was stated to the police in that record of interview. There you have the defence case – in the record of interview. There was nothing my client could have added to that by giving evidence”. That is not an uncommon approach for trial counsel to take. Do we know what Mr Dane of Queen’s Counsel did in this case?
MR GRACE: Yes, page 153, his Honour sets out at line 16 of the final address, in effect, of counsel:
The defence case as put to you, firstly, the counsel said to you that it was agreed in a sense that you would necessarily convict the accused person of possession – perhaps whilst I mention that I should just say to you this is a case where there is an alternative verdict so that in the legal sense at the end of the day if you are not convinced beyond reasonable doubt the intent has been presumed you are able to bring in a verdict of guilty of possession . . .
It was put to you or highlighted to you the accused was in Broome on the day in question, the tablets were in Perth, and that there was no evidence of active selling on the day in question. There would seem no dispute that that is right, but I would remind you of what I said about the relevance of the date to the charge. It was put to you that the presence of money and the gun in the safe go no further than raise a suspicion of dealing in drugs which is not proof beyond reasonable doubt. It was put to you that the presence of this large sum of money in the safe was not significant in the sense and you were invited to imagine where else would a person with a large sum of money keep that amount of money? Putting it in the safe would be the safest place to put it.
It was put to you that given that the accused’s telephone was being tapped on that day unbeknown to him when the police were at the house it is significant that he made no incriminating statements about intention concerning the drugs when he was talking on the phone to people, not knowing it was being tapped. A comment was made to you there is no evidence before you at all that the money came from drugs. It was put to you that documents claiming where the money came from were lodged with the authorities, in other words the accused did support his claim that the moneys were legitimately obtained and you should put aside any concern that he had not tried to do that, and of course, however, there is no evidence of what claim was made and it has to be said the claim was disputed or not accepted by the prosecution but it appears that a claim was made.
It was put to you that there is no direct evidence that the accused owned or had anything to do with the gun . . . It was put to you that you should not conclude the money was from drug dealing –
and then it is referred to ‑ ‑ ‑
GLEESON CJ: I have in mind whether counsel in his address to the jury put an argument to the jury as to why they were not hearing from the accused in court.
MR GRACE: I do not believe so, your Honour.
GLEESON CJ: It is not uncommon for counsel to deal with that problem by saying, “There’s no need for him to give evidence. You’ve got his defence in what he said to the police.” If counsel says that, where does that leave the trial judge?
MR GRACE: Exactly the same position as the judge was left here, it is submitted. It is a very dangerous area, we submit, for a trial judge to intrude upon given the caveats against such intrusion indicated by cases such as Weissensteiner and Azzopardi and RPS in relation to the issue of the right to silence. It is a very thin dividing line and the judge has to be very, very careful, we would submit, in any directions he would tailor to that situation.
Just on that issue, and I know I am going back a little bit and digressing somewhat, the Queensland Court of Appeal in Lewis and Baira, an unreported decision which I have provided to your Honours, this is totally directed to the issue of reliability of exculpatory statements. It is an unreported judgment, R v Ronald Patrick Lewis and Peter James Baira. It was delivered on 18 October 1996, the court comprising Justices of Appeal Davies and Pincus and Justice Dowsett. In a joint judgment, Justices of Appeal Pincus and Davies dealt with the issue of self-serving statements and you will see reference to that – and this is in the Butterworth’s series on page 6 of the extract at page 11 - about the eighth line down from the top of the page, the sentence commencing with these authorities. After referring to Lopes v Taylor, which is the decision in effect of Sir Harry Gibbs on this issue and a subsequent New South Wales Court of Criminal Appeal decision in Williamson, their Honours said:
These authorities emphasise that the weight to be allowed to such self-serving statements as evidence of the truth of the facts stated may not be great; but where as here the statement is tendered by the prosecution, it is wrong altogether to deny it, as did the magistrate in this case, the quality of admissible evidence in favour of the accused.
And then, at the bottom of the page, their Honours said:
The significance of the distinction between statements to which the jury might have regard, and evidence, was not explained to the jury. What the jury might properly have been told, in accordance with Beck, would not in our view have been likely to make Lewis’ chances of acquittal greater than did the directions in fact given. There was an element of truth in what the judge said, because unsworn statements made out of court, even when they get into evidence, are evidence on a different plane from evidence given in the ordinary way in court. We do not suggest that evidence of the latter type is necessarily more reliable than the former; a jury might rationally think that an accused person’s early verbal reactions, in an interview by the police, are of great weight. In the present case, if the judge’s error in conveying to the jury that the police record of Lewis’ interview by the police was not evidence induced them to think that, particularly insofar as it was exculpatory, it was not necessarily to be treated in the same way as evidence from Lewis himself, given in court, then it is difficult to understand how Lewis could legitimately complain of that.
So there you have a recent statement of authority that indicates, in a given case, you might have a judge forming the view that an accused person’s early verbal reactions in the course of a police record of interview are of great weight.
GLEESON CJ: Well, I should have thought as a matter of general principle that the respective weight to be given to an inculpatory statement and an exculpatory statement might depend on the nature of the inculpatory statement and the nature of the exculpatory statement. If, for example, the inculpatory statement is “That is my surfboard” and the exculpatory statement is “When I packed it, it had no marihuana in the same bag and I never touched the bag thereafter”, then there might be no particular reason for differentiating between the weight to be attached to the two statements. It might depend on the circumstances.
MR GRACE: True, but what his Honour the trial judge in this case has done, has taken it as a given that exculpatory statements contained in the record of interview, such as that given by the appellant in this case, not supported by evidence on oath, are ipso facto of less weight than inculpatory statements.
GLEESON CJ: Yes, but you have to relate what he said to the facts and circumstances of this particular case. He was dealing with a particular kind of admission and a particular kind of exculpatory statement. This was not a case of the chief financial officer of a corporation talking about how the accounts came to be prepared in circumstances where it would be very difficult to separate admissions from matters of exculpation.
MR GRACE: Yes, well, that is true.
HAYNE J: And the comparison drawn was with an admission of a fact not in issue at trial. Possession was not in issue at trial by the time the judge charged the jury, was it? That is right?
MR GRACE: That is right.
HAYNE J: So the judge in the impugned passage at 145 is drawing a comparison with the admission of a fact not any more in issue.
MR GRACE: True, but just because of that does not necessarily follow that the exculpatory matters or statements made by the appellant did not carry the same weight. Rationally there is no reason why they could not have carried the same weight if the issue is reliability and that is where the context, I suppose, comes into play.
GUMMOW J: All this is construing section 638, is it not?
MR GRACE: Yes.
GUMMOW J: In other words, the expression:
with such observations upon the evidence as the Court thinks fit to make ‑ ‑ ‑
MR GRACE: Yes, and that was referred to at paragraph ‑ ‑ ‑
GUMMOW J: As Justice Templeman indicated.
MR GRACE: Yes, Justice Templeman indicated that at paragraph 10 of his judgment on pages 176 and 177, but curiously, his Honour Justice Templeman, after referring to Azzopardi and then to section 638 and obviously clearly recognising the distinction between direction and comment, then proceeded to give the jury a direction in no uncertain terms.
GUMMOW J: The distinction is observation, is it not?
MR GRACE: Yes.
GUMMOW J: The word in the section is “observation”.
MR GRACE: Yes, that is true.
GLEESON CJ: It does look as though the learned trial judge got slightly tangled up grammatically in that paragraph, does it not?
MR GRACE: Yes. That led Justice McLure at paragraph 34 in her judgment at 183 to say:
In the first sentence of the paragraph complained of, the trial Judge conflates the two matters affecting weight referred ‑ ‑ ‑
GLEESON CJ: It would be interesting to listen to a tape of that paragraph.
HAYNE J: And where the emphasis lay in the last sentence, they:
are “before you and you give them what weight you see fit”.
MR GRACE: Yes.
HEYDON J: We can infer that this was an entirely innocuous direction, can we not, from the fact that a Queen’s Counsel did not ask for it to be corrected?
MR GRACE: I do not think we can draw any inference, with respect, your Honour.
HEYDON J: It is common to, is it not? If you have a verbal error in a summing‑up and an experienced criminal lawyer does not ask for a redirection is that not a sign that in the atmosphere of the trial that experienced criminal lawyer thought there was no problem.
MR GRACE: Not necessarily. It is very difficult and we would say dangerous to draw that conclusion. It may simply have been the fact he just missed it.
HAYNE J: That is the difficulty. You are really up against the alternative inference that counsel was not doing his or her job properly.
MR GRACE: Yes.
HAYNE J: You have to come right up against that hot pipe, Mr Grace.
MR GRACE: Yes, I do and I realise that, your Honour, but at the end of the day the question is what did the jury possibly make of these directions and if they accepted these directions as directions on matters of law and therefore obliged to use and apply in the course of their deliberations then one cannot say that there has not been a substantial risk of a substantial miscarriage of justice in this case.
GLEESON CJ: In 10 years from now this Court will have a videotape played to it of directions like this when this kind of problem arises and it is not difficult to imagine how what is recorded in print in this transcript could have come out as something unexceptionable. It depends on where you place the emphasis, where the pauses are and that is the importance of no objection from trial counsel, is it not?
MR GRACE: One cannot avoid the other possible inference that he simply just missed it and, your Honours, as I attempted to stress a moment ago, the issue is what effect did this direction have on the jury? Can it be said that it had no possibility of affecting the way in which the jury deliberated? If that can be said then, of course, the appeal must be dismissed, but if it cannot be said, and which we submit it cannot be, then we would submit that a substantial miscarriage of justice has occurred and the appeal should be allowed.
Your Honours, in the lengthy written submissions I referred to a great many other matters of historical significance as well as current significance. I have highlighted the difficulty in Australia in relation to the treatment of this issue because of the fact that in four jurisdictions you have the uniform evidence legislation which seems to suggest that these statements of an exculpatory nature are admissible in the same way as admissions with the caveats such as employed by section 81(b) of the uniform evidence legislation and the difficulty that that would then present for a trial judge in giving directions as yet to be tested as to this issue of different weight.
That is for another case, perhaps, but the development of the common law must take into account, we would submit, the position in the jurisdictions governed by the uniform evidence legislation and that the proper course for the common law to follow would be for a trial judge to avoid any comment for reasons, and not only the reasons given by Justice Thomas in Cox ‑ ‑ ‑
GLEESON CJ: How could we say the trial judge should avoid any comment in the face of section 638 of the Criminal Code (WA)? The statute tells trial judges that they can make such observations as they think fit.
MR GRACE: Well, because of – and this goes into the issue of the right to silence in circumstances of this case and similar cases, where you have an accused, standing mute, there is no other evidence called by the accused and you have a statement implying, if not alluding to, the failure of the accused to give evidence on oath when he could have, to shore up the weight of the exculpatory statements made at a court. That intrudes into that area prohibited especially by the most recent case of Azzopardi in this Court.
GUMMOW J: Is it the consequence of the operation of 570D that the whole of the tape had to go in?
MR GRACE: That is the usual practice in Western Australia.
GUMMOW J: I am not worried about the practice, I am worried about the statute. The effect of 570D(2) was that the evidence of the adverse admissions could not get in unless there was a videotape.
MR GRACE: Well, there is no contemplation of severance of the videotape.
GUMMOW J: That is what I am trying to get at.
MR GRACE: Yes, that would appear to be the case, your Honour.
HAYNE J: Why does that not simply preclude much of your argument? The whole had to go in. The judge could make such observations on the evidence as he or she saw fit. One observation might be thought to be open was, “The accused said some things on the tape against his interest, the accused said some things on the tape in exculpation, the accused did not give evidence. What he has said has not been tested by cross‑examination”.
MR GRACE: Well, the way in which his Honour expressed himself ‑ ‑ ‑
HAYNE J: I understand that is different.
MR GRACE: Yes.
HAYNE J: But would the commentary I have just outlined have been permissible?
MR GRACE: We would say not in the circumstances of this case, because it would impact upon the exercise of the right to silence at trial. I do not know if I can assist your Honours any further.
GLEESON CJ: Thank you, Mr Grace. Yes, Mr Cock.
MR COCK: Thank you, your Honours. May I just commence by correcting what I think may have been a misstatement by my learned friend regarding the facts of the case. My learned friend, in answer to your Honour Justice Hayne, indicated that there was no time on the videotaped record of interview itself. My understanding is that that is actually not the case. Your Honours might have noted actually that the transcript shows that the videotape commenced at 1.13, that is at 103 line 10.
Your Honours might notice a pencil mark at the top of that page, “13.08.30”. That is actually a notation by the person who prepared the edit of the videotape, taken from the time from the videotape. There are two other examples, I think your Honours might see, at 110 about line 26 or 27, “13.31.10”. Again, they are off the videotape, and similarly, I think, at the end there is another notation, page 123 at about line 17, 18.
So the jury would be well aware from the time reading from the videotape that there have been significant edits. They were, as I understand it, to edit out references to the appellant’s involvement in some outlaw motorcycle gang, which was seen by everybody to be irrelevant to the proceedings and potentially prejudicial to him.
Just one other observation I can make in introduction, my friend urged your Honours to a position that the common law should develop in accordance with the provisions of the uniform Evidence Act. He cited no authority to support that as a proposition. We would say in response that, clearly, legislative provisions might well have an impact upon your Honours, but they would not be the predominantly influencing factor.
GLEESON CJ: I think we have actually held to the contrary of that in a case concerning trade practices.
McHUGH J: Environmental Planning Authority.
MR COCK: With respect, I would adopt that. It would seem my friend’s proposition, unsupported by authority, would seem quite inconsistent with authority. There is no basis upon which one could argue the common law should follow some particular legislative scheme.
GLEESON CJ: Well, there seemed to be some resistance to the idea that the common law of Victoria should respond to the statute law of New South Wales.
MR COCK: Yes, indeed, your Honour.
McHUGH J: Sorry, it was the Esso Case. It was Esso.
HEYDON J: So the question is what the common law requires by way of jury direction, and you refer to an English stream of authorities.
MR COCK: Yes.
HEYDON J: Do you know of one case in which it has been a ratio decidendi that Lord Lane’s formulation of the direction in Duncan should be the appropriate direction? It was not so in Duncan’s Case itself. It was not so in Sharp’s Case. It was not so in Australian cases like Spence v Demasi or R v Duncan.
MR COCK: No.
HEYDON J: Or Cox.
MR COCK: No.
HEYDON J: Do you know of any?
MR COCK: No, I do not. It is a matter of record, I think, your Honours, that when the matter came before the State Court of Criminal Appeal the prosecution position was that there was, taken alone, a technical error in the way in which the learned trial judge did, in fact, express that first sentence in the impugned paragraph. Our position, however, was as found by Justice McLure, that his Honour immediately corrected it at the end of that paragraph and subsequently, about four or five pages later on, again made it quite clear to the jury that there was no right for him to direct them as to the weight to be given to any particular piece of evidence. That was a question for them and, again, we place significant weight on the absence of any protestation by defence counsel, when given an opportunity by the learned trial judge at the close of his address, to make any complaint about that particular matter.
HEYDON J: Well, in that case, you abjure the English authorities, because Lord Lane said:
where appropriate, as it usually will be, the judge may, and should, point out that the incriminating parts are likely to be true (otherwise why say them?), whereas the excuses do not have the same weight.
But one can imagine cases in which the excuses, in context, might be more weighty.
MR COCK: Certainly, examples could be formulated to indicate that that particular expression is not really rational and logical as in its form there expressed it appears to be.
GLEESON CJ: Where did the trial judge get this from? Judges do not sit and compose these things as they go along. Was he working from a Bench book?
MR COCK: Like my friends, I am not aware of the fact that he was working from a Bench book and, indeed, at the special leave application I indicated to your Honours, or those of you who were sitting at the special leave application, I was not aware of this style of direction having been repeated in Western Australia. It is not an uncommon thing, of course.
GLEESON CJ: It is very unlikely that the judge invented it.
MR COCK: I entirely accept that. It is not hard to locate at Lord Lane’s observations in Duncan, however, most of the evidence texts actually give a quick reference to it ‑ ‑ ‑
GLEESON CJ: I mean, this is a very old problem, if I can use that expression. Is there no decision of the Full Court of the Supreme Court of Western Australia that previously guided trial judges on this matter?
MR COCK: We could not find any direct authority, and I have not found any since.
GLEESON CJ: He night have taken it from the South Australian case of Justice Cox.
MR COCK: Yes, Spence v Demasi.
GLEESON CJ: Yes.
MR COCK: Yes, that certainly occurs to us. It, again, is certainly referred to in most of the relevant texts.
GLEESON CJ: That is probably where it came from.
MR COCK: We have pointed out in our written outline, and extracted perhaps to a length greater than is appropriate, from a more recent decision in Western Australia of Slater. Justice E.M. Heenan in fact has expressed what he perceives to be the law in this area in Western Australia; again, citing this case, amongst others, as authority for the various propositions he expresses.
GLEESON CJ: What is that decision of Justice Heenan’s?
MR COCK: Justice Heenan was one of three members of the Court of Criminal Appeal in a case of R v Slater. I did not intend to refer your Honours to it specifically. It is No 19 on my list of authorities, which I filed, and it is referred to, as I say, at some length in our written outline. At page 11, paragraph 41, his Honour expresses it this way:
“It is not now in doubt that where a party intends to adduce in evidence against the opposing party an out-of-court statement containing admissions but which also contains self-serving or exculpatory content, in other words a “mixed statement”, the party against whom it is to be used is entitled to insist that the whole of the statement be received into evidence. This rule is supported not merely by the principle that the entirety of the statement is needed to allow the incriminating parts of it to be read in context and with their true significance but also upon the broader principle that the party against whom it is sought to be used may invite the court, or the jury as the case may be, to make whatever use of any part of the statement as is thought fit. The position is described in Phipson: “The Law of Evidence” 15th ed. Sweet & Maxwell 2000 at 31-31 as follows:
‘A mixed statement can be defined as one containing both exculpatory elements and an admission of fact which is significant to any issue in the case, that is capable of adding some degree of weight to the prosecution case on an issue which is relevant to guilt.
The historical rule appears to have been, both in civil and in criminal cases, that where an admission was proved against a party he was entitled to have proved as part of his adversary’s case the whole statement, document, or correspondence containing, or referred to in, the admission although other parts might be favourable to himself, but the jury might attach different degrees of credit to the different parts’ –
Just stop there, your Honours. It is expressed correctly, in our respectful submission. The jury might attach different degrees of credit. I go on:
‘That rule was adopted in R v McGregor (1967) 51 Cr App R 338, CA. However, there followed a series of cases culminating in R v Pearce (1979) 69 CR App R 365 CA in which it was held that exculpatory parts of a statement were not evidence of the facts stated, although the jury were entitled to consider them in evaluating the statement and deciding whether the statement as a whole constituted an admission. As Lawton LJ said in R v Sparrow (1972) 57 Cr App R 353 CA at 357:
“Many lawyers find difficulty in grasping this principle of the law of evidence. What juries make of it must be a matter of surmise, but the probabilities are they make very little.”’
His Honour then refers to R v Duncan – and I will not read the following quotation appearing at the balance of that extract on page 12 of our written outline.
GLEESON CJ: That is really in line with Justice Thomas, is it not?
MR COCK: It is entirely in line with it, yes, your Honours, and indeed, consistent with Justice McLure in her judgment.
HEYDON J: Is there not a difference of stress? Lord Lane says, “Equally, where appropriate, as it usually will be”, whereas Mr Justice Thomas says, “Let’s not tie our hands by ‘usually’ or not. Let’s just look at each case”.
MR COCK: Yes.
GLEESON CJ: And I think, in fairness to Lord Lane, it is also necessary to bear in mind that what he said was intended to contradict a proposition that you should explain to the jury what is evidence and what is not evidence. The emphasis in what he was saying can only properly be understood by bearing in mind the argument to which his proposition was directed.
MR COCK: I accept that, yes. I think that helps us in trying to apply what he said in almost a strict literal way, which it appears the two justices below, Justices Templeman and Wheeler seem to have done in the way in which, as your Honours have pointed out, other judges in Australia have done.
GLEESON CJ: What Lord Lane was saying is you do not set out to explain the hearsay rule to juries and then tell them about exceptions to the hearsay rule and the basis of exceptions and so forth.
MR COCK: Yes, we would adopt that, your Honour.
GLEESON CJ: Which is consistent with the stand that this Court has always taken which is that juries should be told as little about the law as possible.
MR COCK: Entirely. We would endorse that observation again in this case. With respect, his Honour below seemed to have been influenced by that and, in our respectful submission, was doing his best to do so, perhaps got – I think one of your Honours might have mentioned – tongue-tied or twisted in relation to that particular impugned paragraph but, we say, amply corrected it at the end by that statement, “They are before you and you give them what weight you see fit”. Again, we do not have a videotape or an audio recording of the way in which his Honour expressed that but starkly expressed at the end of that particular paragraph, one cannot help but feel that it was given emphasis.
GLEESON CJ: He had given the impression that he realised himself that he had made a slip.
MR COCK: Yes, that is our submission, indeed, and fortified of course by his return to it later on at page 152 where he reminded them, at line 7:
As I mentioned at the beginning of the trial –
My friend has read this to your Honours and I will not read it again, but he reiterated that it was entirely for them and he was not intending to influence them in the way in which they assessed the evidence in the case or the facts as they find them from the evidence that they have heard.
McHUGH J: What would you say about the judge’s direction if he had not used the parenthetical words, “as his admissions or confessions”, if you like, of possession, for example, against interest, so that what the judge had simply said, “They:
are not supported by evidence from him on oath in the witness box and therefore those matters do not have the same weight as evidence –
does not have the same evidential weight. That would be certainly in accordance with the way juries were directed in relation to statements from the dock, would it not?
MR COCK: It may be, your Honour, but certainly none of the judges, even in Australia, certainly Lord Lane in the United Kingdom would not have suggested that a judge could not properly draw a contrast between some parts of what the accused said to the police and other parts of what the accused said to police. It may be going too far saying that matters against interests are likely to be true and it may be going too far to say that matters that are exculpatory do not have the same weight. Perhaps it might have been better expressed, “may not have the same weight”, but, in our respectful submission, is amplified ‑ ‑ ‑
McHUGH J: But it is a trial on oath. Why are judges not entitled to make the statement that these out‑of‑court statements do not have the same weight as evidence or does the oath not count any more? Is it just a ritual that courts now go through? The fact that evidence is given on oath carries weight, of itself, and if evidence is not given on oath surely it does not have the same weight. An admission stands between the two…..because it is an admission against interest.
MR COCK: But in principle there is no reason why a judge should not be able to identify each of those three categories of evidence and assist the jury in their deliberation by giving them comment to the effect that ‑ ‑ ‑
McHUGH J: No, what I am putting to you is why can he not give a direction? Judges always gave directions about statements from the dock. What was said in Jackson v The Queen in this Court in 25 CLR was confirmed in Bridge’s Case 118 CLR and that was the standard direction.
MR COCK: Yes.
GLEESON CJ: As Justice McHugh pointed out to Mr Grace, the standard direction in New South Wales in the days of unsworn statements used to be, “That statement was not on oath. It was not subject to cross‑examination. You may give it such weight as you think fit as a possible version of events.” That was said in the face of a statutory prohibition on commenting on the fact that the accused did not give sworn evidence. Was that the same kind of direction or observation that was given in Western Australia in the days when they had unsworn statements from the dock there?
MR COCK: It was almost identical, your Honour, to those, yes.
GLEESON CJ: My recollection is that that formula had been approved almost 100 years ago.
MR COCK: It was certainly applied in our State, in Western Australia, until abolition.
McHUGH J: Its genesis was Jackson’s Case in this Court and was affirmed again in Bridge’s Case in which Sir Garfield Barwick sat and I think Justice Windeyer made some comments on it as well.
MR COCK: Our primary position, as our written outline expresses, is to support the majority and contend that it is possible for a judge to direct the jury – to use the distinction properly, direct rather than comment to the jury, on the weight they can give to particular species of evidence but, again, in our respectful submission, we do not need to make that out to sustain our arguments that in any event the appeal should be dismissed.
GLEESON CJ: No, but we have to say something that will be used in future cases in Western Australia. Maybe the resolution of this case is not very difficult but what we say will affect what instructions juries are given perhaps in rather more complicated cases.
MR COCK: We have not found a direction of the kind to which your Honour Justice McHugh refers in any of the reported cases in recent times.
McHUGH J: It is a problem that has come to the fore, to a large extent, because of the record of interview, the signed record of interview and the videotape. For a long period of time the police evidence was, “I said, he said” and you did not get the same problems, but in the last 25 years or so this problem has come to a head.
MR COCK: Your Honours would know, of course, that the particular formulation of Lord Lane is not popular by the prosecuting authorities in the United Kingdom and in the case of Aziz which I will ‑ ‑ ‑
McHUGH J: No, I know. They sought to overturn Sharp and Mr Buzzard, who was the editor of Archbold, and also Phipson and himself a prosecutor, favoured the purist view.
MR COCK: The purist approach, yes, but they have failed in that respect. The quid pro quo seems to have been a passage for a fairly strong direction by the judges in the United Kingdom about weight to be given to these out‑of‑court statements and the more recent authority of R v Lambert to which we also make reference in our list is an example that your Honours would, of course, recall that in the United Kingdom because of the implementation of human rights legislation that the sorts of presumptions as are set out in section 11 of the Misuse of Drugs Act (WA) are found to breach a relevant aspect of the convention. Relevantly, at paragraph 39 of the judgment – I think it is of Lord Steyn - his Honour talks of the:
new realism in regard to the problems faced by the prosecution drugs cases has significantly reduced their scope [at 39]:
“First, the relevant facts are usually peculiarly within the knowledge of the possessor of the container and that possession presumptively suggests, in the absence of exculpatory evidence, that the person in possession of it in fact knew what was in the container. This is simply a species of circumstantial evidence. It will usually be a complete answer to a no case submission. It is also a factor which a judge may squarely place before the jury. After all, it is simple common sense that possession of a package containing drugs will generally as a matter of simple common sense demand a full and adequate explanation. Secondly, the statutory provisions enabling a judge to comment on an accused’s failure to mention facts when question or charged has strengthened the position of the prosecution: section 34 of the Criminal Justice Act 1994 (UK). Thirdly, I turn to the fears centred on the ability of an accused in a drugs case to manipulate the system by providing a mixed statement containing a self‑serving explanation that he did not know what was in the package. The perceived difficulty is that the whole statement may be introduced as evidence and he may not testify. In the leading case of Duncan (1981) 73 Cr App R 359, Lord Lane CJ observed (at 365):
‘…where appropriate, as it usually will be, the judge may, and should point out that the incriminating parts are likely to be true (otherwise why say them?), whereas the excuses do not have the same weight. Nor is there any reason why, again where appropriate, the judge should not comment in relation to the exculpatory remarks upon the election of the accused not to give evidence.’
His Honour Lord Steyn indicates that:
This guidance has twice been approved by the House.
He quotes Sharp and Aziz –
Cumulatively, these considerations significantly reduce the difficulties of the prosecution in drugs cases.
McHUGH J: Well, the new realism is that juries cannot be trusted in respect of any matter that might be adverse to the accused. They have to be carefully directed and judges’ hands have to be tied, but, if it is something that might be favourable to the accused in some way, you give the accused an open go. Really, judges tying down juries – a couple of courts have been tying down juries greatly in the last 25, 30 years.
MR COCK: The House of Lords identifies all that and, again, continues to reiterate the precise language of Lord Lane from Duncan and, in principle, is not at all shy about expressing it. Nor should this Court be.
GLEESON CJ: No, but that, again, is related to drugs cases and to a pretty simple and straightforward situation, such as the situation that arises in the present case. But there are other forms of prosecution and offence where the question of what is inculpatory and what is exculpatory in a statement can be very complex.
MR COCK: I entirely accept the examples your Honour has put to my friend, the killing cases, in which the accused might indicate that he indeed fired the shot but it was in circumstances where he was being attacked. Now, again, that may or may not be exculpatory. It is very difficult to determine, even on those short facts, whether that particular final comment by an accused person that he shot because he was being attacked is really exculpatory or not. I accept that it may well not be amenable to the same clear direction that his Honour chose to take in the instant case, but we submit as our primary proposition that the direction in the instant case was allowed, was proper.
My friends refer to other cases and particularly the Queensland authority of Lewis v Baira where, quite understandably, the two Justices of Appeal indicated that necessarily more reliable would be an accused’s early verbal reactions in an interview by police. Of course, that is an entirely different context to this in which, I think, it was four days later after the accused man had taken advice from his solicitor and attended before the police station with his solicitor and the solicitor did most of the talking. Hardly the sort of case where we are dealing with an accused man’s early verbal reactions.
We think that, on the facts of this case, which is obviously the primary consideration for this Court, the direction is acceptable. It may well be, though, that perhaps a more cautious approach should be adopted in cases where the clarity of the distinction between what is exculpatory and what is inculpatory is not so stark or cases in which perhaps, like the Queensland authority to which I just made reference, we are dealing with the accused man’s early verbal reactions. They may well compel a judge charging the jury to take a slightly different approach. But on the submissions in this case, it is our view, and indeed consistent, I think, with that taken by the majority Justices Templeman and Wheeler, that the approach adopted by the trial judge was appropriate.
McHUGH J: The problem is that if there is a departure from the common law principles, the whole system of criminal justice gets thrown into jeopardy, because legislatures do not like what is happening and they overreact. The next thing – you will find accused persons being required to give evidence. One has to try and strike a balance and the common law has always seemed to me to be a product of a great deal of common sense.
MR COCK: And it is commonsense, which is said by particularly the English authorities, to support the position to which they have now fairly firmly come. It is, in our submission, also the same commonsense which should urge this Court to adopt the same general position. I have cast
through my notes, and I do not have anything specific to add to my written outline. If your Honours please.
GLEESON CJ: Thank you, Mr Cock.
HEYDON J: So you put no argument on the proviso? Assume all your arguments to this point are unsuccessful, you advance no argument on the proviso?
MR COCK: We would certainly seek to take in aid the proviso. That would only arise, however, if your Honours were firstly against us on the principal proposition that Justices Templeman and Wheeler got it correct, and if you are against us on that. If you are also against us on the view to which Justice McLure came, that in its proper construction the particular – the words were really somewhat confused and the jury were properly instructed, then even then we would certainly adopt the proviso that having regard to the elements of the offence and the strength of the prosecution case on any rational view, the exculpatory comments made four days after the search by the accused man with the presence and assistance of his lawyer could hardly have sufficient weight to any reasonably competent jury in the context of the strength of the prosecution case and the finding of about $27,000 in cash, an unlicensed gun plus a stun gun in the same container as the particular drugs.
HEYDON J: Do you put any submission about the tapped telephone conversations that were taking place while the police search was being carried out?
MR COCK: I do not make any weight of that. I know it was relied upon in the trial but I do not advance any arguments based upon the five transcripts of the telephone conversations, your Honours.
GUMMOW J: The proviso is section 689, is it not, in your Code?
MR COCK: Yes, that is correct, your Honour.
GLEESON CJ: Yes, Mr Grace.
MR GRACE: Thank you, your Honours. There are three issues I want to raise. It may be of assistance to your Honours in relation to Western Australian authorities if I referred you to the decision of the Court of Criminal Appeal, Western Australia matter of Middleton v The Queen (1998) 19 WAR 179.
Justice Ipp, who was, as your Honours would be aware, then a member of the Western Australian Supreme Court, dealt with the issue that arose in that case where there were two interviews conducted with the accused person. The first was unrecorded and the trial judge refused to allow it to be admitted into evidence. It contained a much more favourable version of the facts than that elicited in a subsequent videotaped record of interview which was admissible under section 570D of the Criminal Code. The trial judge took the view that the evidence was inadmissible on two bases: one, that it was self‑serving; and two, that it was inadmissible pursuant to section 570D(2) because it was not videotaped.
Justice Ipp at page 189, after referring to the various authorities, took the view that both interviews should be admitted, that they formed in effect one whole statement. At 189E his Honour said:
We were not referred to any authority which holds that the mixed statement exception applies to statements made on different occasions. As far back as Re The Queen’s Case . . . it was said by Abbott LCJ that if any portion of a conversation in which a party to the suit was admitted in evidence against that party, the party concerned must be given “the benefit of the entire residue of what he said on the same occasion”.
Then there is reference to Wigmore, and then over the page a reference to Justice Lee’s judgment in Williamson in New South Wales in 1972. After referring to Lord Havers’ statement in Sharp at page 190D, his Honour said:
Thus, the rationale for admitting the exculpatory parts of one whole statement is that, having been uttered on the same occasion that the crime is admitted, their reliability is greater than otherwise would have been the case. Where exculpatory utterances are made as part of a separate statement, this consideration does not apply.
HEYDON J: I just do not quite see where this fits into your argument. In the first place it is not part of a reply, is it?
MR GRACE: It is, because I think his Honour the Chief Justice asked my learned friend as to whether, firstly, there was any Western Australian authority on the issues, or recent authority, and this case is one.
HEYDON J: On summing up – form of summing up.
MR GRACE: Yes. I was not restricting it to that; I was looking at the more general issue.
HEYDON J: It is not an issue in this case.
MR GRACE: No.
HEYDON J: Because the Crown tendered a truncated record of interview.
MR GRACE: Yes.
HEYDON J: The accused was happy with the truncated record and did not want to remove anything more from it.
MR GRACE: Yes.
HEYDON J: What are rather astonishing statements of Justice Ipp are not matters we have to rule upon.
MR GRACE: No, that is true, your Honour. The second point I want to deal with is this that there was a remark, or submission, made by my learned friend that in effect what the learned trial judge did at that passage at 145 at line 19, that last sentence of that paragraph, was to realise that he had made a mistake and immediately fixed it. If the learned trial judge believed he had made a mistake in the lengthy sentence that preceded that particular sentence, then it was incumbent upon him to correct it properly. It certainly was not a proper correction to say what he did. It was very elliptical and its meaning elusive.
The third matter, and final matter that I wanted to raise, was to refer your Honours to the joint judgment of Justices Gaudron, Gummow, Kirby and Hayne in Azzopardi v The Queen (2001) 205 CLR 50, and particularly commencing at paragraph 47 on page 68.
GLEESON CJ: By the way, that is a different Justice Heenan in Middleton, is it not, from the one we were talking about earlier?
McHUGH J: Yes, Desmond Heenan, as opposed to Eric Heenan.
MR GRACE: Yes, that is correct, your Honour. Your Honours will see in that joint judgment, which formed part of the majority, that under the heading “Judicial comment on silence at trial” in paragraphs 45 and 46 there is a reference to the legislative history about unsworn statements and the context in which comments were made. At paragraph 47 their Honours said this:
Against this background, then, it is not surprising that a frequently referred to form of judicial comment on failure to give sworn evidence was that of Lord Parker CJ in R v Bathurst, who said that in the normal case:
“the accepted form of comment is to inform the jury that, of course, he [he accused] is not bound to give evidence, that he can sit back and see if the prosecution have proved their case, and that while the jury have been deprived of the opportunity of hearing his story tested in cross-examination, the one thing they must not do is to assume that he is guilty because he has not gone into the witness box.”
It will be noticed that no reference is made in that comment to any consequences adverse to the interests of the accused which might be thought to follow from a failure to give evidence. That there was no reference of that kind reflects recognition of the many considerations which an accused, and counsel for the accused, may have had to take into account in deciding whether to give sworn evidence, to make an unsworn statement, or to stand mute. Those considerations extend well beyond whether the accused has some answer to the charge.
The choices available to an accused are now more limited than they were. Even so, the decision whether to give evidence or, for example, to rely on a record of interview with police which, in very serious cases, is often a video record, remains a difficult choice. It is not a choice which is affected only by an assessment of whether the accused can give a convincing account which would contradict or deny the allegations made. In any event, that assessment, referring as it does to a “convincing account”, is complex. It would, therefore, be wrong to treat the choice as having been made by reference only to whether the accused was guilty.
Then, under the heading “Comment or direction?” there are set out the – and I will not read that – the distinction is highlighted between a matter from comment and a matter for judicial direction and it is for the jury to decide the facts of the case. In paragraph 50, their Honours say:
It is, however, not the province of the judge to direct the jury about how they may (as opposed to may not) reason towards a conclusion of guilt.
Now, going back to paragraph 145, could it be said that that impugned paragraph is a direction to the jury about how they may reason towards a conclusion of guilt.
HEYDON J: It is a direction about how they must, on one view.
MR GRACE: Yes, and then at paragraph 51 their Honours say:
In the course of argument of the present matters it was suggested that if a judge said nothing to the jury about the fact that
an accused had not given evidence, the jury may use the accused’s silence in court to his or her detriment. Plainly that is so. It follows that if an accused does not give evidence at trial it will almost always be desirable for the judge to warn the jury that the accused’s silence in court is not evidence against the accused, does not constitute an admission by the accused, may not be used to fill gaps in the evidence ‑
and so on, and his Honour did direct the jury in that regard earlier in the directions. At paragraph 52, their Honours said:
As will later appear, there may be cases where the failure of an accused to offer an explanation by reference to some matter peculiarly within his or her knowledge will permit comment to be made as to that failure. However, as with all judicial comments on the facts in a jury trial, it will often be better (and safer) for the judge to leave the assessment of the facts to the determination of the jury in the light of the submissions of the parties. Unnecessary or extensive comments on the facts carry well‑recognised risks of misstatements or other errors and of blurring the respective functions of the judge and the jury.
We submit that is just what has happened here in effect. Those are the matters.
GLEESON CJ: Thank you, Mr Grace. We will reserve our decision in this matter and we will adjourn until 9.30 am on Friday in Sydney and 9.30 am on Friday in Melbourne.
AT 12.27 PM THE MATTER WAS ADJOURNED
Key Legal Topics
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Criminal Law
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Evidence
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Charge
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Sentencing
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Appeal
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