Petty v the Queen

[1991] HCA 34

HIGH COURT OF AUSTRALIA

Mason C.J., Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ.

PETTY and MAIDEN v. THE QUEEN

(1991) 173 CLR 95

5 September 1991

Criminal Law

Criminal Law—Evidence—Silence of accused—No basis for inferring consciousness of guilt—Previous silence about defence raised at trial—Whether basis for inferring recent invention—Persistence until trial in false version of events—Permissible inferences—Directions to jury.

Decisions

MASON C.J., DEANE, TOOHEY AND McHUGH JJ. The facts and the issues involved in these applications for special leave to appeal are set out in the judgments of other members of the Court.

2. A person who believes on reasonable grounds that he or she is suspected of having been a party to an offence is entitled to remain silent when questioned or asked to supply information by any person in authority about the occurrence of an offence, the identity of the participants and the roles which they played. That is a fundamental rule of the common law which, subject to some specific statutory modifications, is applied in the administration of the criminal law in this country. An incident of that right of silence is that no adverse inference can be drawn against an accused person by reason of his or her failure to answer such questions or to provide such information. To draw such an adverse inference would be to erode the right of silence or to render it valueless. It is unnecessary for the purposes of the present case to consider whether any qualification of the right of silence should be recognized in order to accommodate what has been described as "a vigorous artificial respiration" of the old offence of misprision of felony (see Allen, "Misprision", Law Quarterly Review, vol.78 (1962), at p 40). Even if it be assumed that that common law offence still exists in at least some Australian jurisdictions (see, generally, Howard's Criminal Law, 5th ed. by Professor Fisse, (1990), p 353, n.23; Morris, Criminal Law Review, (1955), 290, at pp 291-293; and, as regards Victoria, Crimes Act 1958, s.326(5)), it is, in our view, clear that silence about an offence on the part of a person liable to be suspected of being criminally involved in its commission cannot constitute misprision of felony.

3. That incident of the right of silence means that, in a criminal trial, it should not be suggested, either by evidence led by the Crown or by questions asked or comments made by the trial judge or the Crown Prosecutor, that an accused's exercise of the right of silence may provide a basis for inferring a consciousness of guilt. Thus, to take an example, the Crown should not lead evidence that, when charged, the accused made no reply. Nor should it be suggested that previous silence about a defence raised at the trial provides a basis for inferring that the defence is a new invention or is rendered suspect or unacceptable.

4. There is, however, a significant body of authority to support the existence of a "distinction between reliance on silence as evidence against the accused, and reliance on it by way of answer to or comment upon a defence raised for the first time ... at the trial": see Reg. v. Foster (1955) NZLR 1194, at p 1200. That distinction, initially made by Lord Hewart C.J. in R. v. Littleboy (1934) 2 KB 408, at pp 413-414, and accepted in Ryan (1964) 50 Cr App R 144, at p 148, has been accepted and applied in Australia: see Reg. v. Bouquet (1962) SR (NSW) 563, per Sugerman J. at pp 568-571; Reg. v. Sadaraka (1981) 2 NSWLR 459, per Street C.J. at p 462; King v. The Queen (1986) 15 FC.R. 427; Reg. v. Wright (1980) VR 593; Reg. v. Bruce (1988) VR 579, at pp 589 et seq.; Reg. v. McNamara (1987) VR 855, at pp 870-871; Reg. v. Fellowes (1987) 2 Qd R 606; Reg. v. Fraser (1989) 1 Qd R 182. The distinction was criticized by Professor Cross ("The Evidence Report: Sense or Nonsense", Criminal Law Review, (1973), pp 332-334) and rejected by the English Court of Appeal (Viscount Dilhorne, Lord Scarman and Jupp J.) in Gilbert (1977) 66 Cr App R 237.

5. In Gilbert, Viscount Dilhorne, speaking for the court, disagreed (at p 244) with the statement approved in Ryan. That statement was in these terms:

"This accused, as he was entitled to do, has not advanced at any earlier stage the explanation that has been offered to you today: you, the jury, may take that into account when you are assessing the weight that you think it right to attribute to the explanation."

Viscount Dilhorne went on (at p 244) to say of this statement that it

"seems to us an invitation to the jury to draw an inference adverse to the accused on account of his exercise of the right of silence, though in a more oblique fashion than in Davis ((1959) 43 Cr App R 215)".

6. In the present case, Priestley J.A. expressed the view that there is a "significant distinction" between inferring a consciousness of guilt from silence and denying credibility to a late defence or explanation by reason of earlier silence. His Honour suggested that in the first case there can be inferred an admission by reason of the consciousness of guilt whereas in the second case rejection of the defence or explanation has no evidentiary value in itself, though its effect may be to leave the prosecution case unanswered, or at least not answered by that defence or explanation. We acknowledge that there is a theoretical distinction between the two modes of making use of the accused's earlier silence. However, we doubt that it is a distinction which would be observed in practice by a jury, even if they understand it. And, what is of more importance, the denial of the credibility of that late defence or explanation by reason of the accused's earlier silence is just another way of drawing an adverse inference (albeit less strong than an inference of guilt) against the accused by reason of his or her exercise of the right of silence. Such an erosion of the fundamental right should not be permitted. Indeed, in a case where the positive matter of explanation or defence constitutes the real issue of the trial, to direct the jury that it was open to them to draw an adverse inference about its genuineness from the fact that the accused had not previously raised it would be to convert the right to remain silent into a source of entrapment. Accordingly, the distinction is, in our view, unsound.

7. If all that had been involved in the present case had been the exercise by Maiden of the right to remain silent, it would be clear that evidence was inadmissible to establish that it had not been suggested, in cross-examination of the witness James Crawley on the committal hearing, that Maiden had previously told him that the killing of the deceased, Mark White, had been accidental. In fact, however, as the learned trial judge pointed out to the jury, Maiden had not remained silent about the killing of the deceased. He had participated in a record of interview with the police in which he had asserted that he and Petty had agreed to kill Mark White and that Petty had actually killed him. Neither on the committal hearing nor, apparently, on any other occasion prior to the trial had Maiden withdrawn or corrected that allegation against Petty to anyone in authority. Obviously, his assertion to the police that Petty had killed Mark White was inconsistent with the defence raised at the trial that he had himself accidentally killed White while defending himself from attack.

8. In the circumstances, evidence of the earlier allegation to the authorities against Petty was admissible against Maiden. Among other things, it cast doubt upon the genuineness of the defence that Maiden had killed White accidentally in self-defence or without relevant intent. Evidence of Maiden's subsequent failure to withdraw the assertion that Petty had killed White was also relevant and admissible in that it could lead to an inference of adherence right up to the time of trial to what was, in effect, an allegation of murder against Petty and constitute a denial by conduct of his defence at the trial. Any suggestion that Maiden had, before the committal proceedings, told Crawley that the killing of Mark White had been an accident would plainly be calculated to raise a question about whether Maiden had abandoned the allegation that Petty had killed White at some stage before the committal proceedings. That being so, once that suggestion was raised on behalf of the defence for the first time on the trial, it was open to the Crown to establish that, throughout the whole of the committal proceedings, Maiden had, through his legal representative, said or done nothing to suggest abandonment of his allegation that Petty was the murderer. Since the suggestion was first made in the cross-examination of Crawley, it was open to the Crown to elicit in the course of re-examination that such a suggestion had never been put to him in cross-examination at the committal proceedings.

9. It should be stressed that nothing in what is written above should be understood as suggesting that evidence of a failure to raise some defence or matter of explanation at committal proceedings is ordinarily admissible at the trial as a basis for drawing some adverse inference against the accused. Evidence of a failure, on the committal hearing, to ask a question, make a submission, or advert to a claimed defence is not, of itself, so admissible. The right to remain silent applies to the conduct of a committal proceeding and silence maintained provides no basis for any inference against an accused. What makes the present case different is the fact that Maiden's conduct constituted not an exercise of the right of silence but an adherence, up to the time of trial, to an allegation that Petty had murdered White. It was the making and implied maintenance of that admittedly false allegation of murder by another which the jury was entitled to take into account in determining whether the defence advanced on the trial was spurious. The re-examination was admissible once the suggestion was made by the defence that Maiden had abandoned his assertion that Petty had murdered the deceased in a conversation with a Crown witness before the commencement of the committal proceedings.

10. The one aspect of the learned trial judge's direction which has caused us real concern is his Honour's statement:

"But that does not mean that, as Maiden has chosen not to remain silent and as he did offer at least one version of what happened when he made his record of interview on 15 February, you cannot take into account in judging the weight to be given to (Maiden's) explanation now put forward so late his failure to put it forward either at the time of his record of interview or during the committal proceedings ... but at any event in time for the Crown to investigate it fully" (emphasis added).

It is arguable that the comment which we have emphasized at the end of the above extract carries with it an inference that Maiden was under some duty to disclose a defence of accident or lack of relevant intent before the trial so that the Crown could investigate it. As we have sought to make clear, Maiden was under no such duty. The comment was, however, made in a sentence which immediately followed a direction to the jury that they were not "permitted to draw any inference or conclusion of guilt from Maiden's failure to raise this explanation that Mark White's death was an accident at some earlier stage". In that context and in view of the earlier words which we have emphasized in the above extract, it seems to us that his Honour's comments should be, and would have been, understood as referring not to mere silence but to what was, in effect, a persistence in the unwithdrawn allegation that Petty had killed Mark White. So understood, his Honour's comments do not seem to us to be unfair or unjustified. Indeed, in the circumstances of the present case, it was open to the trial judge to go further and to point out to the jury that the allegation of murder by another, which Maiden had made to the police and allowed to remain unwithdrawn and unqualified right up to the trial, was completely inconsistent with the defence raised at the trial and would obviously have been likely to divert the focus of police investigation and prosecution preparation away from the issues which Maiden would raise at the trial.

11. It follows from what has been said above that the directions given by the learned trial judge were not unduly harsh or unfavourable from Maiden's point of view. We would grant special leave to appeal but dismiss the appeal. Petty's application for leave to appeal was based on Maiden's and we would make similar orders in his case.

BRENNAN J. Justices Dawson and Gaudron have set out the relevant facts which I need not repeat. The question for this Court in Maiden's case is whether there was any error which might have been productive of a miscarriage of justice in the direction given by the learned trial judge to the jury in these terms:
"If Maiden had remained silent, if he had said nothing but
not guilty, if he had not made a statement to the police in his record of interview, if he had not made a statement here in court right up to the moment when you bring back your verdict, you would be directed that no inference or conclusion of guilt can be drawn from that silence. I direct you, therefore, that you are not permitted to draw any inference or conclusion of guilt from Maiden's failure to raise this explanation that Mark White's death was an accident at some earlier stage. But that does not mean that, as Maiden has chosen not to remain silent and as he did offer at least one version of what happened when he made his record of interview on 15 February, you cannot take into account in judging the weight to be given to this explanation now put forward so late his failure to put it forward either at the time of his record of interview or during the committal proceedings, at least when James Crawley was giving evidence to which such an explanation was directly relevant or at some later time, but at any event in time for the Crown to investigate it fully. It is a matter for you, members of the jury, what weight you give to this explanation now put forward by Maiden that this was all an accident." (I shall refer to Maiden's explanation as raising a "defence" of accident although it may be more accurate, as his Honour noted, to regard the explanation as denying a relevant intent. The difference in terminology is immaterial, for the Crown bore the onus of proving that White's death was both non-accidental and caused by an act accompanied by a relevant intent.)

2. In referring to the absence of any suggestion by Maiden prior to the trial that Mark White's death was accidental, his Honour sought to distinguish between the giving of weight to Maiden's unsworn statement at the trial and the drawing of an inference of guilt. With respect, the distinction is illusory. On the facts of this case, there was no reason for attributing to Maiden's silence any capacity to diminish the weight to be given to his unsworn statement other than its capacity to support a guilty inference. His Honour's direction followed the distinction made in R. v. Littleboy (1934) 2 KB 408, at p 414, where Lord Hewart C.J., speaking for the Court of Criminal Appeal, said:
"There is a great difference between making the comment that
silence on the part of the prisoner is unfortunate and a matter to be regarded with reference to the weight of the defence, when the defence of alibi is raised, and saying that the fact that the prisoner was silent may be treated as evidence against him or as corroborating the evidence of an accomplice." The same distinction was made in Reg. v. Bouquet (1962) SR(NSW) 563, at pp 570-571; Ryan (1964) 50 Cr App R 144, at p 148; Reg. v. Wright (1980) VR 593, at p 617; and in Reg. v. Sadaraka (1981) 4 A Crim R 221, at pp 224-225. In Ryan, Melford Stevenson J. stated the distinction clearly, at p 148:

"it is wrong to say to a jury 'Because the accused exercised what is undoubtedly his right, the privilege of remaining silent, you may draw an inference of guilt'; it is quite a different matter to say 'This accused, as he was entitled to do, has not advanced at any earlier stage the explanation that has been offered to you today; you, the jury, may take that into account when you are assessing the weight that you think it right to attribute to the explanation.'"

The distinction was not accepted in Gilbert (1977) 66 Cr App R 237, where Viscount Dilhorne, speaking for the Court of Appeal, said (at p 244):

"The second of the statements quoted (from Ryan) seems to us an invitation to the jury to draw an inference adverse to the accused on account of his exercise of the right of silence".

And Professor Rupert Cross castigated distinctions of this kind as "gibberish": "The Evidence Report: Sense or Nonsense", (1973) The Criminal Law Review 329, at p 333. I would agree that, generally speaking, the weight to be given to an innocent explanation advanced by an accused at an appropriate stage of the trial should not be diminished by an omission to advance that explanation earlier unless the omission is capable of supporting an adverse inference in the circumstances of the case. The distinction referred to in passages cited from Littleboy and Ryan is, I think, invalid. If an accused's failure to put forward a defence on some suitable opportunity before the trial were attributable to a reason other than a consciousness of guilt of the crime charged, it would be equally illogical either to draw an adverse inference from the failure or to take the failure into account in assessing the weight to be given to an exculpatory explanation proffered at the trial. Conversely, if the reason for the failure is a consciousness of guilt, the failure is material to both questions. If the jury might legitimately draw an inference of guilt from such a failure taken in conjunction with other circumstances, it is legitimate to take that failure into account in assessing the weight to be given to an exculpatory explanation proffered at the trial. If that inference is not open, it is impermissible to take the failure into account.

3. In the present case, the only factor other than guilt advanced to explain Maiden's omission to raise a defence of accident before trial was the allegation made in his record of interview that Petty had actually killed White. If that allegation had been accepted, the defence of accident would have been superfluous. At the trial, Maiden repudiated the allegation saying that he had made it in order to penalize Petty for his alleged misconduct with a girl who was accompanying them. If the jury were to treat Maiden's silence about the defence of accident as explicable by a desire to penalize Petty, there was no reason to regard that silence as diminishing the weight to be given to his unsworn statement of innocence at the trial. On the other hand, if there were any logical justification for the view that his silence diminished the weight to be given to his unsworn statement, it must consist in the capacity of his silence legitimately to support an inference of guilt, either by itself or in conjunction with other relevant circumstances. It is therefore necessary to consider whether any of the circumstances to which his Honour referred might have legitimately supported a guilty inference. Those circumstances are: Maiden's record of interview in which he alleged that White had been killed by Petty; the absence of any suggestion of accident at the committal proceedings (especially in the cross-examination of James Crawley); the absence of any other suggestion of accident before Crawley's cross-examination at the trial; and the lack of opportunity for the Crown to investigate the suggestion fully. These circumstances respectively evoke consideration of different principles affecting the conduct of a criminal trial.

4. First, we may consider the fact that Maiden had not mentioned accident as an explanation of White's death either in his record of interview or on any other occasion prior to the trial. (I leave aside for the moment his Honour's reference to the course of the committal proceedings.) It is clear that Maiden, had he wished to do so, might have refused to answer questions by the police as to his part in White's death: Rees v. Kratzmann (1965) 114 CLR 63, at p 80; Hammond v. The Commonwealth (1982) 152 CLR 188, at pp 200, 203; Sorby v. The Commonwealth (1983) 152 CLR 281, at pp 317-319. Had he so refused, no adverse inference could have been drawn on that account. A suspect has a right to maintain silence when questioned by persons in authority about the occurrence or authorship of an offence. It is a "right" which attracts an immunity from any adverse inference which might otherwise arise from its exercise. It may even afford an excuse for misprision of a co-offender's felony (see Reg. v. Lovegrove (1983) 33 SASR 332, at pp 342-343), but that is a question for another day. The right arises whenever a person is suspected, or believes on reasonable grounds that he is suspected, of having been a party to an offence. The right must not be infringed by any invitation to the jury to take his silence into account against him at his trial: R. v. Naylor (1933) 1 KB 685; Davis (1959) 43 Cr App R 215; Gilbert, at pp 243-245; Hall v. The Queen (1971) 1 WLR 298, at p 301; (1971) 1 All ER 322, at p 324; Ex parte Zietsch; Re Craig (1944) 44 SR (NSW) 360, at p 369; King v. The Queen (1986) 15 FCR 427, at pp 436-437. This rule applies not only when a caution has been administered. I respectfully agree with what Lord Diplock said in Hall (at p 301; p 324):

"The caution merely serves to remind the accused of a right
which he already possesses at common law. The fact that in a particular case he has not been reminded of it is no ground for inferring that his silence was not in exercise of that right, but was an acknowledgment of the truth of the accusation." The rule is designed to prevent oppression by the police or other authorities of the State; it is not designed to preclude a jury from drawing inferences from silence when a response might reasonably have been expected, the response not being sought by or on behalf of a person in authority: Parkes (1976) 64 Cr App R 25. Sometimes an exercise of the right of silence may deprive a suspect of an opportunity to dispose of an adverse inference arising from other facts, for example, recent possession of stolen goods, but that is not to deny the right; the adverse inference in such a case is drawn not from the silence but from the other facts: see Bruce v. The Queen (1987) 61 ALJR 603; 74 ALR 219; Raviraj (1986) 85 Cr App R 93, at p 107. The right of silence, as it is stated above, has not always been fully acknowledged (see, for example, Reg. v. Beljajev (1984) VR 657, at p 662), but it is only by a firm adherence to the rule as so stated that effect is given to the policy of the common law that a suspect's "fault (is) not to be wrung out of himself, but rather to be discovered by other means, and other men": Blackstone's Commentaries, vol.IV, p 296, cited by Windeyer J. in Rees v. Kratzman, at p 80. Where a jury might have had regard to an accused's earlier silence in evaluating evidence given by him at the trial, recognition of the right of silence precludes the jury from taking that silence into account. It is not open to attack exculpatory evidence of an accused as a recent fabrication merely because the accused was silent on occasions when he had a right to be silent. The right of silence would be infringed if evidence of silence were admissible to impugn exculpatory evidence or out-of-court statements by an accused.

5. However, in this case Maiden elected to respond to questions by the police, and the jury were entitled to draw whatever inferences were reasonably open from the responses he made: Woon v. The Queen (1964) 109 CLR 529. The explanation of White's death which Maiden proffered in his record of interview was that Petty had killed White, and he did not withdraw that allegation at any time before trial. It was open to the jury to consider whether Maiden's making, and his delay in repudiating, his allegation against Petty was occasioned by Maiden's consciousness of his own guilt. These were facts from which a guilty inference could be drawn. As it was open to the jury to draw a guilty inference from these facts, it was open to them to give less weight on account of these facts to Maiden's assertion in his unsworn statement that White's death was an accident. The comments of the learned trial judge in this respect were not erroneous.

6. Next, there is the circumstance that the defence of accident was disclosed too late to allow the Crown an opportunity to investigate it fully. Unless Maiden was under a duty to inform the Crown before the trial that he proposed to raise a "defence" that White's death was an accident, it was impermissible to draw an adverse inference from the raising of the defence at a stage of the trial which left the Crown with insufficient time to investigate it fully. A criminal trial is the prime example of an adversarial proceeding. Its adversarial character is substantially unrelieved by pre-trial procedures designed to limit the issues of fact in genuine dispute between the Crown and an accused. The issues for trial are ascertained by reference to the indictment and the plea and, subject to statute, the Crown has no right to notice of the issues which an accused proposes actively to contest. The Crown bears the onus of proving the guilt of an accused on every issue apart from insanity and statutory exceptions. The Crown must present the whole of its case foreseeing, so far as it reasonably can, any "defence" which an accused might raise, for the Crown will not be permitted, generally speaking, to adduce further evidence in rebuttal on any issue on which it bears the onus of proof: Shaw v. The Queen (1952) 85 CLR 365, at pp 379-380. The Crown obtains no assistance in discharging that onus by pointing to some omission on the part of an accused to facilitate the presentation of the Crown's case or to some difficulty encountered by the Crown in adducing rebuttal evidence which an accused could have alleviated by earlier notice. Even where an accused proposes to raise an alibi, there is no common law duty to give the Crown notice of the alibi. It was necessary to legislate to require notice of an alibi to be given to the Crown before trial, although a failure to give notice of an alibi might result in the Crown being permitted to call evidence in rebuttal if the alibi is first set up during the defence case: Killick v. The Queen (1981) 147 CLR 565, at pp 569-570. In a criminal trial, an accused is entitled to put the Crown to proof of any issue the onus of which rests on the Crown without giving prior notice of the ground on which he intends to contest the issue. If the ground be some matter of fact, an accused is entitled to abstain from giving notice of the ground until a witness is called during the trial to whom the matter of fact can and should be put.

7. Accident was first raised at the trial when it was put to the witness Crawley that Maiden had said to him, in a conversation that took place in January 1988, that he (Maiden) had killed Mark White by accident. As Crawley had been called by the Crown to give a different and incriminatory version of that conversation, and as no third person was present during the conversation, the cross-examination of Crawley was the first and only occasion during the trial when the suggestion of an exculpatory version of the conversation between Maiden and Crawley might have been put. It is extremely unlikely that the Crown would have obtained any evidence which might have disproved the conversation put to Crawley in cross-examination, other than Crawley's denial. There was no duty on Maiden to give the Crown prior notice of the defence of accident or of the cross-examination of Crawley which counsel intended to pursue. The onus of disproving accident was on the Crown and, if the Crown could have obtained further evidence to establish that White's death was non-accidental, it was bound to have called that evidence in chief - before Maiden made his unsworn statement - and to have furnished a proof of the evidence to the accused. There was no ground for permitting the jury to consider that the Crown was deprived of any opportunity to which it was entitled to investigate the defence of accident fully and to call evidence in disproof of that defence. There was no lost opportunity of investigation which, in the circumstances, might have supported an inference adverse to the accused. It follows that it would not have been legitimate for the jury to give less weight to Maiden's "defence" of accident because it was raised too late for the Crown to investigate it fully.

8. Finally, we come to the omission to put to Crawley in his cross-examination in the committal proceedings the exculpatory version of Maiden's conversation with Crawley and the omission then to advance the defence of accidental death. Of course, the committal proceedings were an obvious opportunity for withdrawing and repudiating the allegation against Petty and for advancing the defence of accident. It is understandable that the learned trial judge should expressly draw to the jury's attention the opportunity that was not then taken. Unfortunately, the reference to this missed opportunity, in the context of the reference to the Crown's not being given time to investigate fully the defence case of accident, carries the implication that there was a legal duty to put to Crawley at the committal proceedings the innocent version of the conversation between him and Maiden. In other words, the implication was not merely that Maiden's moral duty to repudiate his false allegation against Petty had not been discharged but also that he had failed to discharge a legal duty to disclose the "defence" of accident at the committal proceedings. Sometimes there are practical advantages for an accused in giving notice at the committal proceedings of an issue which he intends to raise at the trial (see Brown and Bruce (1931) 23 Cr App R 56; but cf. Devlin, The Criminal Prosecution in England, (1960), pp 90-91) but there is no legal duty to do so. Nor is there any obligation on an accused or his counsel to put to a witness in committal proceedings matters which are intended to be put or which may be put to the witness at the trial. I respectfully agree with Gleeson C.J. who said in Reg. v. Birks (1990) 19 NSWLR 677, at p 689:
"The learned trial judge commented upon the fact that a
particular matter was not put in cross-examination during the committal proceedings. Such a comment is normally inappropriate. It has never been the rule in committal proceedings in this State that there is a duty to cross-examine Crown witnesses whether in detail or at all. Indeed, it would be most regrettable, and would lead to undue lengthening of committal proceedings, for any such rule to be adopted." See also per Lusher AJ. at p 703; and Reg. v. Blacktopp (1988) 94 FLR 273, at pp 276-277. The purpose of committal proceedings is to ascertain whether the Crown case warrants the committing of the accused to await trial (Grassby v. The Queen (1989) 168 CLR 1, at pp 12, 15); committal proceedings are not a pre-trial conference. Committal proceedings give a measure of protection to an accused (Grassby, at p 15), but the accused is under no obligation to disclose his line of defence at committal. A different approach, allowing a trial judge to comment upon a failure to put an accused's essential case in cross-examination at committal, was embraced in Reg. v. Dargin (unreported, New South Wales Court of Criminal Appeal, 25 August 1988) but that approach should not be followed. That case is distinguishable from Sadaraka, at pp 226-227, where cross-examination by counsel in the presence of an accused during committal proceedings was treated as evidence of the instructions then given by the accused to his counsel and, apparently, as the equivalent of an assertion of facts then made or accepted by the accused. It is not necessary now to decide whether and in what circumstances evidence of the manner in which committal proceedings are conducted by or on behalf of an accused can ever be admitted as proof of an extra-curial statement by or attitude of an accused. It is sufficient to hold that a mere omission to raise an issue on cross-examination at committal gives no foundation for an inference adverse to acceptance of the issue on the trial. If it were not for the erroneous implication in the summing up that some duty rested on Maiden to put his version of the conversation to Crawley at the committal proceedings, no objection could be taken to a comment upon Maiden's failure to take the opportunity of the committal proceedings to withdraw the allegation made by Maiden against Petty in his record of interview. But as I understand his Honour's comments to contain that implication, I am of the opinion that the summing up was erroneous in that respect.

9. It was permissible for the jury, in the circumstances of the case, to draw an adverse inference from Maiden's making of an allegation against Petty in his record of interview and from his failure to withdraw that allegation until he repudiated it at the trial. Accordingly, it was permissible for the jury to take account of those facts in determining the weight to be given to Maiden's unsworn statement. But the jury ought not to have been directed that, in determining the weight to be given to the unsworn statement, they were entitled to take into account that, at the committal proceedings, counsel for Maiden did not cross-examine Crawley to put Maiden's version of their conversation and that Maiden had raised the defence of accident at the trial too late for the Crown to investigate it fully.

10. In so holding, I am conscious of having scrutinized a passage in a summing up which comments on matters of fact, that such a scrutiny may not often be justified in an appeal to a Court of Criminal Appeal and that such a scrutiny is even less likely to be justified in an application to this Court for a grant of special leave to appeal. Nevertheless, the right of an accused to refrain from disclosing his defence until an appropriate stage of the trial, the scope of the right of silence and an accused's freedom to abstain, without prejudice to the conduct of his defence, from cross-examining a witness on committal proceedings are questions of such importance to criminal practice and procedure that special leave must be granted in Maiden's case. Whether the strict adversarial nature of the criminal trial, the right of silence and the protection of an accused given by committal proceedings tip the balance too far in favour of an accused is a question on which opinions may and do differ. But if there is to be reform, it should be by processes other than judicial decision: see, for example, the Australian Law Reform Commission's Interim Report on Criminal Investigation (ALRC 2, 1975). These questions touch the balance between investigative power and individual freedom; their answers determine whether we live in a free society. If change there is to be, it must be by legislation. Until then, it is the function of the courts to clarify and apply the principles which presently inform the practice and procedure of the criminal law.

11. Crawley was re-examined at the trial and the fact that Maiden's version of their conversation had not been put to him in the committal proceedings was elicited from him over the objection of counsel for Maiden. There was thus an erroneous admission of evidence as well as some errors in the summing up. These blemishes in the trial did not relate merely to some marginal issue. The truth or falsity of the exculpatory account given by Maiden in his unsworn statement was at the heart of the trial and the circumstances to which his Honour erroneously referred as considerations to which the jury might have regard in deciding what weight should be given to Maiden's unsworn statement were of considerable significance. The blemishes in the summing up did not attract an application for redirection. Nevertheless, the Court of Criminal Appeal gave leave to argue the right of silence grounds of appeal and this Court should not disturb that leave. It is therefore necessary to consider the proviso to s.6(1) of the Criminal Appeal Act 1912 (N.S.W.). By their verdict, the jury showed that they rejected Maiden's unsworn statement. As it is impossible to say that they did so only for those reasons which were legitimately available for their consideration, it is impossible to apply the proviso in Maiden's case. His appeal must be allowed.

12. Petty's application for special leave to appeal is founded on a direction which the learned trial judge gave the jury, setting out the elements of the crime which had to be established by the Crown in Petty's case. Those elements were set out in a document handed to the jury. In the light of the verdicts returned by the jury, the direction on which the jury must have acted in convicting Petty read as follows:
"If the Crown has established in the case against Petty:
(1) that it was the act of Maiden which caused the death

of Mark White; and

(2) that it was done with an intention to kill or to inflict really serious bodily injury; and

(3) that Maiden was not acting in self-defence; and (4) that, at the time when that act was done by Maiden, Petty both was present and intentionally gave either aid or encouragement to Maiden in doing that act,

then Petty is guilty of Murder."

Plainly the Crown's case against Petty required that it be proved that Maiden was guilty of murder as a principal in the first degree in order to convict Petty as an accessory. The argument in support of Petty's application for special leave fastens on the blemishes in Maiden's case and depends upon the setting aside of Maiden's conviction. If Maiden's conviction is set aside, so the argument runs, Petty's conviction cannot stand. As a matter of legal theory, the argument is fallacious. Maiden's guilt had to be established against Petty upon evidence admissible in Petty's case. The learned trial judge had given the jury the necessary direction that they were not to use the statements of Maiden as evidence against Petty. He specifically directed them as to the evidence admissible against Petty to prove against Petty that Maiden had caused White's death and intended to do so.

13. However, his Honour included in that evidence a statement by Maiden made to a third party before White's death that Maiden would kill White most probably by strangling him. That statement, made out of Petty's presence, was admitted against Petty as direct evidence of Maiden's intention. Although no argument has been advanced to challenge the admission of this evidence to prove against Petty what Maiden's intention was at the relevant time, the fact is that the jury were directed that some evidence bearing on Maiden's state of mind and intention was common to the case against Maiden and the case against Petty. It would have been extremely difficult for the jury to separate the two cases and to decline to find in Petty's case that Maiden had had an intention to kill White when they had found in Maiden's case that Maiden had had that intention. Moreover, although the evidence that Maiden's version of his conversation with Crawley had not been put in the committal proceedings was material only to Maiden's case, that evidence was before the jury which had to decide Petty's case and might have affected their verdict, however impermissibly. The only safe course to take, therefore, is to hold that the blemishes in Maiden's case affected the joint trial and that the verdict against Petty as well as the verdict against Maiden should be set aside.

14. I would grant special leave to appeal to each applicant, allow their appeals, set aside their convictions and order a new trial.

DAWSON J. The two applicants, Petty and Maiden, were on 20 September 1988 convicted of the murder on or about 25 November 1987 of a man named Mark White on the road between Glenreagh and Grafton in New South Wales. The deceased was a hitchhiker who was travelling with a companion named Danielle Curry. The two applicants, who were gaol escapees, were travelling north along the coast in a station wagon together with two other men named Thomas Patterson and Ronald Crawley.

2. The four men in the station wagon picked up the deceased and Danielle Curry. The latter was apparently attracted to Maiden and the deceased showed some signs of jealousy. Subsequently, Petty and Maiden invited the deceased to join them in robbing a vehicle which they expected to come along the Glenreagh to Grafton road. The vehicle was to be stopped by embedding nails in the road to puncture its tyres. The deceased agreed to take part. Under the direction of Petty a pick and shovel were stolen from a Department of Main Roads van.

3. On the night of 25 November 1987, all six persons went to a place on the road near where it was said that the plan was to be put into operation. The two applicants, Petty and Maiden, got out of the station wagon with the deceased, taking the pick and shovel with them. The station wagon, containing Patterson, Crawley and Danielle Curry, drove away and returned some time later. When it returned, it picked up Petty and Maiden, who said that the deceased had got into the vehicle which they had planned to stop and had left in it. Petty and Maiden put the pick and shovel into the back of the station wagon and some time later threw them into a river.

4. In January 1988, Danielle Curry was travelling with Petty and Maiden near Yass in New South Wales. Patterson and Ronald Crawley were no longer with them, but they had been joined by Danielle Curry's girlfriend and a man named James Crawley, who was Ronald Crawley's brother. The police questioned them. The police also questioned Patterson in Adelaide. Patterson and Ronald Crawley were taken to Coffs Harbour and, as a result of information given by Patterson, the police found the deceased's body in a shallow grave.

5. On 16 February 1988, Maiden signed a record of interview which was subsequently admitted in evidence at his trial without objection. In his answers Maiden described what had happened after he, Petty and the deceased had left the station wagon on the night of 25 November 1987. He said that previously during the afternoon of 25 November 1987 Petty had said that he was going to kill the deceased. He said that when he, Petty and the deceased, Mark White, had left the station wagon: "Mark was lingering behind and Joe (as Petty was called) said to me, 'I'll kill him here', and I said, 'Why?' and he said, 'So I could get him out of the way and use Danny for the truck up Queensland.' I said, 'I don't want to have anything to do with it'. He said to me in a very angry voice, 'Just throw him on the ground.'" Maiden's answers continued:

"Well I said I wanted to have a cigarette so I sat down and had a smoke. By that time Mark caught up and sat down next to me and had a cigarette. After that Joe said, 'Now', so I pushed Mark over and pissed off. Joe yelled out to me to come back. I came back, it was dark. He said to me, 'Go and dig a shallow grave', so I picked up the shovel and went and dug a hole. After that I went back to find Joe. I found him then I seen Joe sitting on top of Mark and Mark was dead and Joe told me that he strangled him in a boasting manner. He said, 'I killed him with my own two hands.'"

6. On 17 February 1988, Petty signed a record of interview which was admitted in evidence at his trial without objection. He described what happened after he, Maiden and the deceased left the station wagon on the night of 25 November 1987. He said that he heard an argument between Maiden and the deceased, who were some distance away. He said that he subsequently learned that it was over the attention which Danielle Curry had been paying Maiden. He said that he went to where Maiden and the deceased were. His account in the record of interview continued:

"Stephen (i.e. Maiden) was laying on his back with Mark on top of him. Stephen had his arm around Mark's neck and a scissors hold with his legs around Mark, I think around his legs. As soon as Stephen knew I was there he started yelling at me to shut Mark up and help hold him. I threw a fruity, started yelling about the noise they were making and told Stephen to let Mark go and pulled one leg off Mark then his arm from around Mark's neck. At the time I didn't take any notice of Mark and thought he was putting on an act, because I was going mad at Stephen because of the noise. Stephen tried to explain to me what happened and I didn't take any notice of him or listen to him. I grabbed Mark's arm to get him off the ground and he didn't move."

Petty went on to describe in his answers how they realized that the deceased was dead and how they buried the body.

7. Both Maiden and Petty were charged with murder and committal proceedings took place on 15 June 1988. The records of interview were placed in evidence at the committal proceedings. Both Ronald Crawley and James Crawley gave evidence at the committal proceedings. Ronald Crawley's evidence was of statements made by Petty to him on 25 November 1987 that he intended to kill the deceased and that he would "most probably strangle him".

8. James Crawley gave evidence at the committal proceedings that in January 1988, when he was with him in Yass, Maiden had said in conversation that he, Maiden, and Petty had killed the deceased. James Crawley said that Maiden described how he, Petty and the deceased had gone into the scrub, where Petty had said "Go" and he, Maiden, had grabbed the deceased around the throat from behind and with his other hand had pushed the deceased's head sideways in an attempt to break his neck, which made the deceased unconscious. James Crawley said that Maiden told him that he saw Petty attempting to break the deceased's neck and that Petty finally said that the deceased was dead.

9. James Crawley was cross-examined on his evidence at the committal proceedings by a solicitor acting for Maiden and Petty. The cross-examination went no further than to suggest to James Crawley that he was not telling the truth and did not suggest that there was a different version of the conversation which he had recounted. Danielle Curry, who said she was present at the conversation described by James Crawley, gave evidence of the conversation which was similar to the evidence given by James Crawley. Both Maiden and Petty were committed for trial.

10. At the trial both Maiden and Petty made unsworn statements to the effect that the deceased's death was accidental. Danielle Curry was declared a hostile witness. Notwithstanding that her previous statements concerning the conversation between James Crawley and Maiden were substantially in accordance with the evidence given by James Crawley at the committal proceedings, she now said that those statements were untrue. James Crawley was called by the prosecution to give evidence at the trial. He was cross-examined along the lines that the conversation which he said he had had with Maiden was not as he had recounted it, but was a conversation in which Maiden had given an account of events much in accordance with the account of events given by Petty in his record of interview and was to the effect that the deceased's death was accidental. James Crawley did not agree with this suggestion. He further denied that Maiden had told him that he had "accidentally killed a guy" or anything of that kind.

11. The prosecution indicated that it intended to lead from James Crawley in re-examination the fact that the conversation put to him in cross-examination had not been put to him when he was cross-examined at the committal proceedings. Objection was taken by counsel for the applicants but the trial judge permitted the prosecution to take this course. In giving his ruling, he said:

"The purpose for which the Crown seeks to lead this fact is to enable it to submit to the jury that little weight should be given to this exculpatory explanation, given for the first time at a stage when it cannot fully be investigated. It is, of course, important that the jury should also be directed that it is not entitled to draw any inference from an accused person's exercise of his right to remain silent. That was made clear in Woon v. The Queen (1964) 109 CLR 529 at 535. The jury will have to be told that no inference of guilt could be drawn from the mere failure of Maiden to raise this explanation at the committal proceedings. It is simply that the explanation now offered for the first time cannot fully be investigated."

In directing the jury, the trial judge said:

"I should, however, give you this direction. The law provides that any person accused of a crime may remain silent, he may say nothing by way of explanation, and that, if he does remain silent, no inference or conclusion of guilt may be drawn from his silence. That rule of the law is to ensure that no-one will be forced to incriminate himself by feeling obliged to answer questions. You will recall that, throughout the evidence which had been given to the police officers in this trial, whenever either of these two accused were asked any questions by a police officer, those questions were preceded by a caution that he was not obliged to say anything unless he wished to. You must have heard the wording of that caution dozens of times during the evidence in this case. That caution means exactly what it says. If Maiden had remained silent, if he had said nothing but not guilty, if he had not made a statement to the police in his record of interview, if he had not made a statement here in court right up to the moment when you bring back your verdict, you would be directed that no inference or conclusion of guilt can be drawn from that silence.

I direct you, therefore, that you are not permitted to draw any inference or conclusion of guilt from Maiden's failure to raise this explanation that Mark White's death was an accident at some earlier stage. But that does not mean that, as Maiden has chosen not to remain silent and as he did offer at least one version of what happened when he made his record of interview on 15 February, you cannot take into account in judging the weight to be given to this explanation now put forward so late his failure to put it forward either at the time of his record of interview or during the committal proceedings, at least when James Crawley was giving evidence to which such an explanation was directly relevant or at some later time, but at any event in time for the Crown to investigate it fully. It is a matter for you, members of the jury, what weight you give to this explanation now put forward by Maiden that this was all an accident."

12. The applicants submitted that the trial judge erred, first, in directing the jury that they might draw an inference adverse to the applicant Maiden from the exercise of his right to silence and, secondly, that they might draw an inference adverse to the same applicant from the manner in which his solicitor cross-examined the witness James Crawley at the committal proceedings.

13. That is the way in which the submissions were expressed, but it may be observed at the outset that the trial judge did not invite the jury to draw an inference adverse to the applicant from any exercise by him of his right to silence. On the contrary, it was the fact that the applicant did not remain silent which formed the basis of his Honour's direction. The jury were required to evaluate the unsworn statement which the applicant made at his trial for the purpose of arriving at their verdict. What his Honour told the jury was that, in determining what weight they should give to that unsworn statement, they were entitled to have regard to the version of events previously put forward by the applicant in his record of interview and by way of the cross-examination of James Crawley. True it is that his Honour referred to the unsworn statement as an "explanation now put forward so late" but that reference was in the context of a previous explanation given by the applicant and his Honour had in unequivocal terms previously given a direction that no inference or conclusion of guilt could be drawn from silence on the part of the applicant. In the same way, his Honour directed the jury that they were entitled to have regard to the manner in which the committal proceedings were conducted on behalf of the applicant in evaluating the account of events given by the applicant in his unsworn statement, an account which first emerged during the cross-examination of James Crawley during the trial. The jury were not told that they might conclude from those circumstances that the applicant was guilty; they were told that they might take those circumstances into account in judging the weight to be given to the applicant's explanation at the trial.

14. The right to silence is a convenient, if somewhat imprecise, expression, which conveys the traditional objection of the common law to any form of compulsory interrogation. It embraces the absence of any obligation on the part of a person suspected of having committed a crime to answer questions by the police or other persons in authority. The exercise of the right to silence cannot, of itself, amount to an admission of any kind or reflect a guilty conscience, and a trial judge should so instruct a jury where an accused has chosen not to answer questions whether at or before the trial. The trial judge should tell the jury that the accused was quite entitled to remain silent and that they should not infer guilt from the fact that he exercised his right to do so.

15. But that does not mean that the choice by an accused to exercise his right to silence can play no part in the processes by which a jury arrives at its verdict. They may not say that he is guilty because he refused to answer questions; he had a right to do that. But if the accused gives evidence or makes an unsworn statement, having previously refused to answer questions, the jury are entitled, in assessing the weight to be given to the evidence or the unsworn statement, to have regard to the fact that he is advancing his account for the first time at trial and that he did not avail himself of an earlier opportunity to tell his version of events. Of course, there will frequently be a perfectly good reason why the accused chose to remain silent previously, which will mean that his silence is of no assistance in evaluating his evidence. For instance, his solicitor may have been present when he was questioned and may have advised him not to answer any questions. On the other hand, the explanation which he advances at trial may be so simple, straightforward and easily established at the time of questioning that his failure to advance it at the first opportunity casts doubt upon it when it is eventually given. If the jury in those circumstances do not believe the explanation given by the accused and conclude that he is guilty, they do not infer guilt from the exercise by him of his right to silence. But they may properly conclude that he is guilty because they disbelieve his explanation and the evidence called by the prosecution establishes his guilt beyond reasonable doubt in the absence of any explanation.

16. A similar reasoning process is to be seen in the application of the doctrine of recent possession. Under that doctrine, the recent possession of stolen goods so calls for an explanation that the failure of an accused to provide one when given an opportunity to do so will found an inference that the possession was not innocent and that the accused was guilty either of stealing the goods or of receiving them knowing them to have been stolen. In Bruce v. The Queen (1987) 61 ALJR 603, at p 603; 74 ALR 219, at p 219, this Court said:

"Where an accused person is in possession of property which is recently stolen, the jury is entitled to infer as a matter of fact, in the absence of any reasonable explanation, guilty knowledge on the part of the accused. Such an inference will be drawn from the unexplained fact of possession of such property and not from any admission of guilt arising from the failure to proffer an explanation. It is the possession of recently stolen property in the absence of explanation or explanatory circumstances, which enables the inference to be drawn. Thus the absence of any reasonable explanation must not itself be explicable in a manner consistent with innocence."

Of course, the doctrine of recent possession allows an explanation to be given at trial, but, as in any other case, it may be disbelieved because it is given then for the first time, notwithstanding that the failure to give it earlier was in the exercise of the right to silence.

17. It is important to recognize that, when an accused who has refused to answer questions subsequently gives exculpatory evidence, it is not the right to silence which is in issue but the truth or falsity of the evidence. It is in the evaluation of that evidence that the refusal to answer questions previously may be a relevant circumstance. Thus in Ryan (1964) 50 Cr App R 144, at p 148, Melford Stevenson J., having considered the authorities, delivered the judgment of the Court of Criminal Appeal saying:

"It is, we think, clear as a result of those authorities that it is wrong to say to a jury 'Because the accused exercised what is undoubtedly his right, the privilege of remaining silent, you may draw an inference of guilt'; it is quite a different matter to say 'This accused, as he was entitled to do, has not advanced at any earlier stage the explanation that has been offered to you today; you, the jury, may take that into account when you are assessing the weight that you think it right to attribute to the explanation.'"

18. Professor Cross has described that passage as gibberish, alleging that it says on the one hand that a jury cannot draw an inference of guilt from the accused's exercise of his right to silence and that on the other hand it says that the jury may do just that: (1973) Criminal Law Review 329, at p 333. Properly understood, the passage says no such thing. It is one thing to draw an inference of guilt from the mere exercise of the right to silence. It is quite another thing to say that, if an accused who has previously maintained his silence gives evidence, the jury may take his previous silence, if they consider it to be relevant, into account in assessing the weight which they give to that evidence. In short, the exercise of the right to silence cannot of itself provide evidence of guilt; that must be established by other evidence. But the previous silence of the accused may be taken into account in assessing the credibility of evidence given by the accused at trial.

19. Nevertheless, in Gilbert (1977) 66 Cr App R 237, at p 244, the Court of Appeal said, referring to the passage from the judgment of the Court of Criminal Appeal in Ryan which I have set out above:

"That Court felt that there was a clear dividing line between those two courses.

We have to confess that we are unable to perceive that that is the case. The second of the statements quoted seems to us an invitation to the jury to draw an inference adverse to the accused on account of his exercise of the right of silence ..."

But it is wrong to say that no inference adverse to the accused can be drawn on account of his exercise of the right to silence, if to conclude that what an accused says at trial is less likely to be true because he did not say it previously amounts to drawing such an adverse inference. That is a reasoning process which is permissible consistently with the existence of the right to silence. It has never been suggested, so far as I am aware, that a jury cannot reject the evidence of an accused because it is given for the first time at trial. That can only be done by taking into account previous silence on the part of the accused. If it is not possible to take the accused's silence into account, then it would follow ineluctably, in my view, that the jury could not reject the accused's story because it was told for the first time at trial. That has never been the law and would be an affront to common sense. What cannot be drawn from the exercise of the right to silence is an inference of guilt: that the accused in maintaining his silence admitted his guilt or displayed a sufficient consciousness of guilt to establish it. But that is a different thing.

20. The English authorities exhibit a certain ambivalence upon the subject as Ryan and Gilbert show: see also R. v. Naylor (1933) 1 KB 685; R. v. Littleboy (1934) 2 KB 408; Gerard (1948) 32 Cr App R 132; Davis (1959) 43 Cr App R 215; Hoare (1966) 50 Cr App R 166. But in this country, and in New Zealand, the position is clear. As was said by the Full Court of the Supreme Court of Victoria in Reg. v. McNamara (1987) VR 855, at p 870:

"it is very well established that an accused person's refusal to answer police questions, after he has been warned of his right to remain silent, cannot be used against him as any proof of his guilt. But it is also well established that if the accused person later gives evidence at the trial and tells a story not previously disclosed to the police, then it is perfectly proper for the Crown prosecutor, and also for the trial judge, to point out to the jury that in considering the credibility of the accused's story they may take into account the fact that he did not choose to tell the story to the police at any earlier time".

See also Reg. v. Twist (1954) VLR 121; Reg. v. Bouquet (1962) SR(NSW) 563; Reg. v. Wright (1980) VR 593; Reg. v. Sadaraka (1981) 2 NSWLR 459; Reg. v. Bruce (1988) VR 579; Reg. v. Fraser (1989) 1 Qd R 182.

17. To allow that an explanation might be judged false because it was not put forward before trial is, in effect, to allow that the burden of proving guilt may be more readily discharged because the accused person did not signal the precise basis of his innocence - in other words, his defence. And that is so even if the accused person bears an evidential burden, for a burden of that kind does not relieve the prosecution of the ultimate onus of establishing the elements of the offence charged beyond reasonable doubt.

18. A direction which allows that failure to advance a matter of defence may detract from its weight, reduces the burden on the prosecution to prove guilt beyond reasonable doubt and undermines its corollary that, insanity and statutory exceptions aside, it is never for an accused person to establish his innocence. It does so by subjecting the accused person to the risk that, if he does not signal before trial what he is under no obligation to prove in his trial, namely, the basis of his innocence, that may be used to establish his guilt. Accordingly, a direction of the type given in the present case is a misdirection. And, evidence that there was a failure to signal or raise some matter of defence before trial, which is directed only to the weight to be given to that matter of defence, is inadmissible because, given that it is for the prosecution to prove guilt and it is not for the defence to prove innocence, the evidence proves nothing.

19. The applications for special leave to appeal were argued by reference to the failure to signal a claim of accidental death in the cross-examination of James Crawley at the committal proceedings. I have already indicated that the account given by Maiden in his record of interview, if found to be false, is capable of supporting an inference of his consciousness of guilt. And evidence that that account was maintained by silence is, in my view, admissible as evidence which might buttress that inference. However, the direction given with respect to the failure to signal a claim of accidental death in the cross-examination of James Crawley at the committal was not put on that basis, but on the erroneous basis that that failure, by itself (i.e. whether or not it supported an inference of consciousness of guilt), was capable of supporting an inference that the account given at the trial was false. And, it follows from what has been said that that error extended to what was said in the summing up as to the failure to advance the explanation of accidental death when the record of interview was made or "in time for the Crown to investigate it fully". That is not to deny that, in an appropriate case, comment may be made to the effect that there is no evidentiary significance attaching to the failure to call evidence in answer to some matter which invites further investigation but which could not have been anticipated and which was raised for the first time at the trial. Comment to that effect is entirely sensible. However, as this case shows, not every case in which an explanation is put forward for the first time at the trial will call for a comment of that kind. In the present case the claim that an account involving accidental death had been given to James Crawley required no investigation beyond that which might properly be undertaken in re-examination. And, as one would expect, the possibility of accidental death was the subject of post-mortem investigation well before trial. There was thus no basis on which it could be suggested that, had those matters been raised at some earlier time, they might have been investigated and additional or answering evidence might then have been available.

20. It remains to be considered whether the error which occurred in the trial constituted a serious miscarriage of justice in the accepted sense that the applicants "may thereby have lost a chance which was fairly open to (them) of being acquitted": Mraz v. The Queen (1955) 93 CLR 493, per Fullagar J. at p 514. The context in which that question must now be answered is quite different from that which confronted the Court of Criminal Appeal, for, on that Court's understanding of the law, error occurred only in so far as the summing up was likely to convey to the jury that Maiden had failed to do something which he should have done.

21. The central issue in the trial was whether the prosecution had proved beyond reasonable doubt that Maiden committed the act causing death with the requisite intent or recklessness. It would have failed to do that if the possibility left open by the post-mortem evidence, namely, that Mark White met his death accidentally in a struggle of the nature described by Maiden at the trial, was accepted by the jury as a reasonable possibility. The erroneous direction concerning the failure to signal the defence of accidental death bore directly on that issue. And, as earlier indicated, the effect of that error was to suggest that the jury might more readily accept that the prosecution had discharged its burden of proof of that issue because Maiden had not signalled his defence before the trial.

22. Although the prosecution case might be thought to be a strong one, it was not without its complications. One complication was that, in practical terms, proof of the guilt of both applicants depended on the jury not acting on material parts of the account given by Maiden in his record of interview and the account said to have been given by him to James Crawley. The reasoning process which led the jury not to act on that account might have been such as to lead it to reject inferences that might otherwise be drawn from the giving of a false account, including an inference of consciousness of guilt. In a context in which the only direct evidence against Maiden that he committed the act causing death was that contained in the account given by him at the trial (which account asserted consistently with the evidence of the post-mortem examination and consistently with the account given by Petty that death occurred accidentally), the erroneous direction may have been critical to the jury's verdict against him. Although in strict legal theory the error which occurred in the trial occurred only in the case against Maiden, the circumstances of that trial, including that the case against Petty was simply a case of accessory to murder committed by Maiden, were such that the error may have deprived both applicants of a chance of acquittal which was fairly open to them. It thus constituted a serious miscarriage of justice.

23. Special leave to appeal should be granted in each case. The appeals should be allowed. The decision and orders of the Court of Criminal Appeal of New South Wales should be set aside and, in lieu thereof, it should be ordered that the appeals to that Court be allowed, the convictions set aside and new trials ordered.

Orders

Applications for special leave to appeal granted.

Appeals dismissed.