R v Coyne

[1995] QCA 169

IN THE COURT OF APPEAL [1995] QCA 169

SUPREME COURT OF QUEENSLAND

Brisbane	C.A. No. 37 of 1995
[R. v. Coyne]

T H E Q U E E N

v.

MICHAEL JAMES COYNE

Appellant

Pincus JA.
de Jersey J.

Ambrose J.

Judgment delivered : 12/05/1995

Joint reasons for judgment of de Jersey J. and Ambrose J; separate concurring reasons of Pincus JA.

APPEAL DISMISSED

CATCHWORDS: CRIMINAL LAW - Appeal against conviction - evidence that "the appellant did not answer any questions" of police was admitted into evidence - appellant contended that the admitted evidence had no probative value and was inadmissible, referring to Petty v. The Queen (1991) 173 CLR 95 - Petty and Glennon v. The Queen (1994) 68 ALJR 209 distinguished as in this case no evidence was called or given by the appellant at trial - police questions also held not to relate to Count 13 on which the appellant was convicted.

Counsel:	Mr D. Lynch for the Appellant Mr B. Campbell for the Respondent
Solicitors:	Legal Aid Office for the Appellant

Director of Public Prosecutions for the

Respondent
Hearing date: 19 April 1995

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 12/05/1995

I have read the joint reasons of de Jersey and Ambrose JJ. and adopt their Honours' explanation of the facts of the case and the issue raised in the appeal. I agree with their Honours as to the proper fate of the appeal.

As de Jersey and Ambrose JJ. point out, the appellant's complaint is that the jury was told that the appellant refused to answer police questions; their Honours say and I agree, that it is unlikely that any of the questions concerned the issues in count 13 on which the appellant was convicted.

In Weissensteiner (1993) 178 C.L.R. 217 the dissenting judgment of Gaudron and McHugh JJ. discusses the circumstances in which evidence may be able to be led of failure to give an explanation. This part of the dissenting reasons gains some authority from the apparently approving reference to it in G v. H (1994) 68 A.L.J.R. 860 at 868. At p. 243 Gaudron and McHugh JJ. point out that recent possession of stolen goods is an example of circumstances which "give rise to an assumption that an innocent person faced with those facts would offer some explanation of them". But their Honours say in effect that such circumstances are not susceptible of complete definition. After discussing two broad categories, their Honours conclude (at 244):

"The critical factor in cases of both kinds is that the facts are such as to give validity to the assumption that an innocent person would offer an explanation. Thus, it is sometimes said that the circumstances must be such that failure to explain is inconsistent with innocence."

Gaudron and McHugh JJ. stress that -

"...it is the failure to provide an 'explanation or answer...as might be expected if the truth were consistent with innocence' which is of evidentiary significance and not the failure to give evidence as such." (245)

It may be that in the present case the shopping bags, goods and credit cards which were in the car being driven by the appellant when intercepted by the police so obviously suggested a particular conclusion that they called for an explanation; the analogy of recent possession of stolen goods is close.

For reasons about to be mentioned, we need not determine whether or not the jury should have been informed that the appellant, to use the Crown prosecutor's expression, "exercised what was his clear legal right not to answer any questions". It must have been quite evident to the jury that the appellant did not desire to put forward any positive explanation; he did not testify. The judge gave, correctly, a Weissensteiner direction based on the appellant's failure to give evidence and no complaint is made of that. His Honour, as to the appellant's not having answered police questions, told the jury that he had a perfect right to do so and that no inference could be drawn against him; his Honour emphasised that point by repetition.

It is unnecessary, in the present case, to discuss in what circumstances the absence of explanation when "first confronted with the facts" may be used against an accused; the reasons of Gaudron and McHugh JJ. to which I have referred suggest that in some circumstances this may be done but there is no need to deal with the question whether this case is within the principles discussed by Gaudron and McHugh JJ. The mention to the jury of the appellant's reaction to police questioning could hardly have affected the verdict, and the appeal must be dismissed.

REASONS FOR JUDGMENT - de JERSEY J. AND AMBROSE J.

Judgment delivered: 12/05/1995

The appellant appeals against his conviction upon a charge of obtaining $1,800 from a bank by falsely pretending that he was authorised to negotiate a cheque drawn on the account of one Jeffrey Charles Wall. The cheque form purported to bear the signature of Mr Wall. The ground of appeal is that the trial judge erred in law in failing to discharge the jury after the Crown prosecutor in the course of his opening said that when intercepted by a police officer the appellant exercised his lawful right and refused to answer "any questions about this matter". It is also contended that the admission of evidence to the effect "that the appellant did not answer any questions" amounted to an error in law requiring that the conviction be set aside. In support of this contention the appellant relied upon observations made in Petty v. The Queen (1991) 173 CLR 95 at 99 per Mason C.J., Deane, Toohey and McHugh J.J. It was contended on his behalf that in the light of the observations in Petty - "The Crown should not lead evidence that when questioned by the police the appellant refused to answer questions. Such evidence has no probative value and is therefore inadmissible."

It was also contended that:

"It was particularly important in this case because the learned trial judge gave the jury a Weissensteiner direction ... as a result the jury may have been left with the impression despite the learned trial judge's directions to the jury that the appellant was being evasive by not answering questions and not giving evidence."

The events leading to the arrest of the appellant may be stated shortly. On 3 September 1992 Jeffrey Charles Wall had property from his dwelling place stolen at some time during his absence between 12.45 p.m. and 2.45 p.m. Included in the property stolen was a cheque form on an account he had with the Commonwealth Bank, Adelaide Street branch, Brisbane.

That cheque was signed by somebody in the name of Mr Wall and cashed at the Commonwealth Trading Bank at about 4 p.m. on 3 September 1992, the day it was taken from Mr Wall's dwelling.

The person cashing the cheque was filmed. When the theft of the cheque form was reported to the bank a video recording of the transaction in which that cheque was cashed was viewed and an extract was taken showing the appearance of the person who cashed it.

On 18 September 1992 at a Myers department store at Carindale, the appellant and another man were observed together after the other man had procured a cash refund in respect of goods returned to the store. The circumstances observed by a security officer of the store in the light of information he had received from employees of the store led him to report to the police the registration number of the car in which the appellant was observed to leave the store grounds. A general police alert for that car was broadcast and eventually Constable Cassidy at Morningside located the car then being driven by the appellant who was accompanied by a female passenger named MacGibbon. In the back seat of the car was discovered a number of Myer shopping bags containing goods, and a number of credit cards in the names of persons other than those of the appellant and his female companion. None of the credit cards was found in the possession of the appellant.

Upon the evidence, which it is unnecessary to examine for the purposes of this appeal, it was open to infer that the appellant and his female companion, MacGibbon, and another person with whom the appellant had been in contact at the Myer shopping centre and from whom he had there received money apparently refunded from the Myer department store, were together involved in conduct directed to dishonestly obtaining "refunds" of money in respect of goods returned after their purchase from Myer's store where the purchase price had been purportedly paid by means of credit cards which those persons were not entitled to use.

On 16 January 1995 an indictment was presented charging the appellant with six counts of misappropriation of property involving the use of credit cards issued to other people, and charging two other people with similar counts and further charging the appellant with the count upon which he was convicted and in respect of which he appeals. The appellant pleaded not guilty to each of the counts charged and the person charged with four counts of misappropriation plead guilty to two of them. The person charged with two counts of misappropriation (MacGibbon) pleaded guilty to each of them.

The jury was then empanelled to hear the seven charges against the appellant and the two charges to which one of the two women jointly indicted with the appellant had pleaded not guilty.
After its empanelment, the jury retired and subsequent to discussions between counsel, the Crown entered a nolle prosequi in respect of four of the misappropriation charges to which the appellant had pleaded not guilty. It also entered a nolle prosequi in respect of the two charges to which the lady jointly indicted with the appellant on misappropriation charges had pleaded not guilty.

The Crown then opened its case against the appellant in respect of the three remaining charges to which he had pleaded not guilty - two of them (counts 9 and 11) being counts of misappropriation involving the use of credit cards. Count 9 involved a credit card issued to Jeffrey Charles Wall - the owner of the cheque form stolen from his residential unit which was involved in count 13. Count 10 on the indictment charged MacGibbon, the passenger in the car driven by the appellant when he was intercepted by Constable Cassidy at 2.10 p.m. on the afternoon of 18 September 1992, with misappropriation in terms identical with those of count 9. She had pleaded guilty to this count.

At the close of the Crown case after legal argument as to the effect of the evidence given in respect of counts 9 and 11, the learned trial judge directed the jury that that evidence was not sufficient to convict the appellant and there was (in effect) a directed verdict of acquittal.

The appellant gave no evidence and called no evidence.

Counsel addressed the jury and the learned trial judge

summed up and gave directions of law. No complaint is made with

respect to the content of the summing up.

The jury convicted the appellant on count 13.
The only complaint is that based upon the contention that

Petty is authority for the proposition that evidence that the appellant "refused to answer questions had no probative value and was therefore inadmissible". It was contended its only effect could be a prejudicial one because the jury may have found it difficult to refrain from concluding, in spite of the directions to the contrary given to them by the trial judge, that the refusal of the appellant to answer questions was indicative of guilt because an innocent man would have been anxious to answer in a way which would exculpate him.

It is convenient to turn to the record to see what was opened by the Crown prosecutor when the case proceeded against the appellant on the three counts to which we have referred. The opening was not recorded. After completion of the opening counsel for the appellant objected in the following terms:

"It concerns a part of my learned friend's opening wherein he said that my client did not answer any questions about the matter when questioned by the police. My application is that this jury be discharged. I would be submitting that that evidence should not be admitted into evidence in this case. It is absolutely prejudicial. It has no probative value whatsoever. For those reasons it should not have been ... opened ...".

Subsequently counsel referred to R. v. Petty (and Maiden). He contended that that case was authority for the proposition that "Nothing should be led on it" i.e. upon the refusal of an accused person to answer questions put to him concerning his implication in the commission of an offence.

The learned trial judge declined to discharge the jury and subsequently Constable Cassidy who was the police officer who intercepted the appellant and MacGibbon gave evidence that about 2.10 p.m. on 18 September 1992 he intercepted a sedan with registration number 983-BGS. He said he had received information concerning that motor vehicle over the police radio and had been specifically looking out for it. He said when intercepted the vehicle was being driven by the appellant and in the front passenger seat beside him was MacGibbon. He said he noted five Myer bags and contents in the rear part of the vehicle and a black commando type bag in the front of the vehicle. That bag had more Myers shopping bags and contents in it. He said he obtained the full name, date of birth and address of the passenger MacGibbon and then asked the appellant and MacGibbon to empty their wallets and purses. He found $20 in cash in the appellant's wallet and $350 in the possession of MacGibbon. She also had a number of credit cards. Photographs of the items found in the car by police officer Cassidy were tendered and then the Crown prosecutor asked the following question:

"In Court we are not concerned with any conversation that may have taken place between you and MacGibbon. Is the position in relation to Mr Coyne that he exercised what was his clear legal right not to answer any questions?"

The police officer answered "That's correct. The only thing that he did agree with was to come to the police station with us, but we had no other conversation at all."
In the course of his summing up, the learned trial judge directed the jury in the following terms:

"You have heard evidence that the accused declined to be interviewed by the police. Well, a car was stopped containing the accused and the lady concerned on the 18th and the credit cards were obtained in the car in her possession and the various Myer bags were there. It would be a bit silly to suggest that having done that the police then stood around with a vacant look on their face and did nothing, of course they started to ask the accused some questions, but as a citizen, he has a perfect right to refuse to answer any questions. That's the same if the police stopped you and asked you questions. You have a perfect right to refuse to answer any questions at all and no adverse inference can be drawn against him because of that. You can't say any citizen has to answer questions, he just has a perfect right to refuse to answer any questions and no adverse inference can be drawn against him because of that."

Later in his direction the learned trial judge continued:

"... the accused man, in this particular case, has not given evidence and in relation to that point I tell you that the prosecution at all times bears the onus of satisfying you beyond reasonable doubt that the accused is guilty of the offence with which he is charged. The accused man bears no onus; he does not have to prove anything. For that reason he is under no obligation to give evidence. You cannot infer guilt simply from his failure to do so but the consequence of his failure to give evidence is this; you have no evidence from the accused to add to, to explain, to vary, or contradict the evidence put to you by the prosecution.

Further, in this case you might think the truth of what happened between 2.45 and 4 o'clock is not easily ascertainable by the prosecution [i.e. on 3 September 1992 when the cheque form was taken from Wall's apartment]. The prosecution asks you to infer guilt from all the circumstances of the case. The prosecution asks you to draw inferences from such facts as it is able to prove.

An inference of guilt may be more safely drawn from the proved facts when an accused man elects not to give evidence of relevant facts which it can easily be perceived must be within his knowledge. You might think, for example, in this case it requires no great perception that the accused would have direct knowledge of the events by which the cheque came into his possession."

It must be kept in mind that when the Crown case was opened and the evidence given by Constable Cassidy, two of the counts against the appellant involved misappropriation of property involving the use of credit cards which the appellant was not entitled to use. Indeed one of the charges of misappropriation involved the use of Wall's credit card. Count 10 to which MacGibbon pleaded guilty also involved misappropriation of property involving the use of the credit card taken from Wall's apartment.
There is nothing in the record to indicate what questions were asked of the appellant and MacGibbon on 18 September 1992 nor what answer either made to them. It seems quite unlikely that any questions asked concerned issues in count 13. There is certainly no evidence to suggest that anything was found in the car at the time of its interception by the police that could conceivably have led to the appellant being asked such questions.

It seems clear that the appellant after his arrest on 18 September and after further police investigation of the whole matter was linked with the person who had cashed Mr Wall's cheque purportedly signed by him on 3 September 1992. The features of the appellant upon his arrest were compared with those recorded upon the video camera of the Commonwealth Bank when the cheque was cashed at about 4 p.m. on that day. The caretaker of the building in which Mr Wall resided identified the person shown on the bank video film as a person he had seen in the vicinity of that building on a number of occasions about the relevant time.

The Crown prosecutor took care not to open or have Constable Cassidy give evidence of what was said to the appellant and his companion concerning the content of the car or their involvement with any of the matters at Myer's store which had led to their interception at Morningside shortly afterwards. Was there then a breach of a "rule" laid down in Petty which requires that his conviction be set aside in spite of the clear directions given by the learned trial judge, to which we have referred, and the absence of any suggested misdirection with respect to what was upon the evidence a very strong Crown case?

We shall turn to consider whether Petty is authority for the existence of a rule in the terms for which the appellant contends.

Our attention was drawn to statements of principle in three

cases:

Petty (and Maiden) v. the Queen (1991) 173 CLR 95

R v. Reeves (1992) 29 NSWLR 109
Glennon v. the Queen (1994) 68 ALJR 209

In both Petty and Glennon the appellants had given evidence raising matters that had not been raised by them when given the opportunity prior to trial; in one case upon earlier police interrogation and in the other in the conduct of committal proceedings.

In both cases the High Court considered whether the failure of an accused person to raise a matter in respect of which he gave sworn evidence upon trial at an earlier time when given the opportunity to do so could be regarded as a matter detracting from his credibility as a witness upon his trial.

The facts in those cases therefore are quite dissimilar from those in the present case. Statements of principle in those cases ought be considered in the context of the factual situations in respect of which they were made.

In our view, the statements of principle contained in those cases, even ignoring the factual context in which they were made, give no support to the appellant's contention. In Petty in the joint judgment of Mason CJ, Deane, Toohey and McHugh JJ. (1991) 173 CLR 95 at p. 99 it was observed:

"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. ..."

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."

At p.101 it was observed:

"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."

In the same case Brennan J at p.107 said:

"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."

At p.118 Dawson J said:

"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."

In Glennon the appellant's conviction was set aside by reason of the misdirection of the trial judge that the jury might reject the sworn evidence of the appellant on an impermissible basis - that the details of his defence had not been revealed to investigating police officers.

In Reeves the appellant did not give evidence. However, in the course of cross-examination of a Crown witness he suggested matters of defence which had not previously been suggested when he had had the opportunity to make that suggestion. In that case, the Crown led evidence-in-chief from an investigating police officer that the accused, when asked questions "would say nothing relative to the incident". Later in re-examination in answer to a leading question the police officer said that the accused "was most uncooperative".

In the Court of Appeal it was argued for the appellant that this evidence was inadmissible. Hunt CJ at CL dealt with this submission at pp.114-115 where he said:

"It was submitted that none of this evidence was admissible. It was argued that it was inadmissible as a result of the decision of the High Court in Petty v. The Queen (1991) 173 CLR 95. It is true that, in that case (at 99), the High Court was concerned to emphasise that a suspected person's right of silence ('a fundamental rule of the common law') must not be eroded or rendered valueless by permitting his exercise of that right to be used as a basis for inferring guilt, or a consciousness of guilt. But that case did not lay down any rule of universal application that evidence may not be given of questions asked and of the answers given where that evidence discloses that the accused has exercised his right of silence."

He continued at p.115:

"However, where such evidence is given which discloses that the accused has exercised his right of silence, a direction should invariably be given - as soon as the evidence is given and, if necessary, again in the summing up - to make it clear to the jury that the accused had a fundamental right to remain silent and that his exercise of that right must not lead to any conclusion by them that he was guilty."

In Reeves the appeal was allowed on the ground that directions given to the jury as to the effect of the "uncooperative" behaviour of the accused when questioned by the police was inadequate.

In our view, it is clear from the comments made in all three cases that a judge should direct the jury that no adverse inference may be drawn against an accused person on the ground that he has exercised his right to decline to answer questions put to him by police officers. It may be inferred from this that such evidence often given by a police officer is not therefore inadmissible. Indeed the very existence of the rule assumes that such evidence may be placed before the jury. We would adopt with respect the observations of Hunt CJ at CL in Reeves in this respect.

Upon the facts of this case it was perfectly proper for the Crown to lead the evidence which it did from Constable Cassidy concerning the applicant's refusal to answer questions upon his apprehension while driving the motor vehicle on 18 September 1992. For the reasons given by the learned trial judge it was desirable for the jury to be informed that no statement was made by the applicant prior to his accompanying the police officer to the police station and that the appellant was perfectly entitled at law to make no answers to questions asked of him.

In any event, the questions asked by the police officer which the appellant declined to answer could only have related to counts 9 and 11 and the appellant was by direction acquitted of those charges.
The learned trial judge quite properly directed the jury that no adverse inference could be drawn against the appellant because he exercised his legal right to decline to answer questions put to him by police officer Cassidy concerning his involvement in the commission of any offences.
In our judgment the evidence of which the appellant complains was not inadmissible and the directions given to the jury by the learned trial judge on the effect to be given to it was correct.

We would dismiss the appeal.