R v D
[2000] QCA 203
•30 May 2000
SUPREME COURT OF QUEENSLAND
CITATION: R v D [2000] QCA 203 PARTIES: R
v
D
(appellant)FILE NO/S: CA No 401 of 1999
DC No 300 of 1999DIVISION: Court of Appeal PROCEEDING: Appeal against conviction ORIGINATING COURT: District Court at Maroochydore
DELIVERED ON: 30 May 2000 DELIVERED AT: Brisbane HEARING DATE: 13 April 2000 JUDGES: de Jersey CJ, Davies JA and Helman J
Separate reasons for judgment of each member of the Court; de Jersey CJ and Davies JA concurring as to the order made, Helman J dissenting in partORDER: Appeal dismissed CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – OBJECTIONS AND POINTS NOT RAISED IN COURT BELOW – MISDIRECTION AND NON-DIRECTION – GENERAL PRINCIPLES – appellant convicted of various counts of indecent dealing and exposing a child to indecent material – neither of the complainants gave evidence – where substantial evidence against appellant being video tape-recorded interviews – where evidence relating to uncharged acts went to the jury – where no attempt at trial by appellant's counsel to exclude this evidence or to seek specific directions – whether trial judge should have made a distinction as to the use of the evidence – between using the evidence to determine the truth of the confessions with respect to the acts charged as opposed to the likelihood of the appellant committing the offences because of guilty passion
CRIMINAL LAW – EVIDENCE – CONFESSIONS AND ADMISSIONS – STATEMENTS – VOLUNTARY STATEMENTS – INDUCEMENT CALCULATED TO CAUSE UNTRUE CONFESSION – GENERALLY – failure by police during questioning to record all conversations with appellant – where appellant contested admissibility of confessional evidence recorded on a voir dire because of alleged inducements made during unrecorded conversations – where risk of police fabrication may result in directions being made to the jury
CRIMINAL LAW – EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS – IMPEACHMENT OF CREDIT AND ADMISSIBILITY OF EVIDENCE AS TO CREDIT – whether the failure by appellant to complain of the improper police questioning at an earlier stage vitiated the trial judge's adverse finding of credit and consequent admission of confessional evidence
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – CONSIDERATION OF GENERAL CONDUCT OF CASE – where trial judge permitted cross-examination by the prosecutor upon the manner in which committal proceedings were conducted on appellant's behalf – whether trial judge's failure to give directions on this point rendered the verdict unsafe – whether trial judge should have permitted cross-examination
Criminal Law Amendment Act 1894, s 10
BRS v The Queen (1997) 191 CLR 275, considered
Gipp v The Queen (1998) 194 CLR 106, considered
McKinney v The Queen (1991) 171 CLR 468, considered
Petty v The Queen (1991) 173 CLR 95, distinguished
R v Armstrong CA No 453 of 1996, 29 April 1997, considered
R v Mostyn CA Nos 482 and 491 of 1995, 10 April 1996, considered
COUNSEL: P J Callaghan for appellant
N Weston for respondentSOLICITORS: John D Weller & Associates (NSW) for appellant
Director of Public Prosecutions (Queensland) for respondent
de JERSEY CJ: I have had the advantage of reading the reasons for judgment of Davies JA. I agree that the appeal should be dismissed, for the reasons His Honour has given.
I wish to add the following brief observations in relation to the third ground of appeal.
The objectionable piece of cross-examination was as follows:
“MR COURTNEY: We were talking about the committal proceedings in February 1999. You were present obviously?—Yes.
And you recall that you had an instructed barrister. You had a barrister looking after your interests at the committal proceedings?—Yes, that’s right, yes.
But firstly, Charysse Timmins, the lady you saw in the Court here …?—Yes.
--- she was cross-examined by your barrister at the committal proceedings?—That’s correct, yes.
And this suggestion that the police had done the wrong thing by you on 11 May 1998 wasn’t put to her, was it, at the committal. It wasn’t suggested to her this business about the threats?-- I can't recall that.
Are you saying – you can’t recall?—No.
Well, equally, I put it to you that in relation to the cross-examination of Trevor Upson, the male police officer, these allegations that he’s acted improperly weren’t put to him then, were they?—Still can’t ---
Can’t remember them.”
This brief exchange came towards the end of 30 pages of cross-examination. As Davies JA has pointed out, the answers were that the appellant could not recall, one way or the other. The jury was properly instructed by the learned trial judge to the effect that questions are not themselves evidence. There being no relevant evidence on the points, it is difficult to identify any relevant consequence of the impermissible cross-examination.
The judge referred in his summing-up to defence counsel’s submission, which wrongly assumed that the issue could carry significance, but merely in the course of outlining the points made by counsel.
I respectfully do not consider that the convictions are vulnerable now on the basis that moved by suspicion, the jury might, contrary to the judge’s directions, have assumed against the appellant, in a speculative way, that he should have been answering those questions in the affirmative.
DAVIES JA: The appellant was convicted after a trial in the District Court on 5 November last on five counts of indecent dealing with a child under 16 years, four with two circumstances of aggravation and one with one circumstance of aggravation; and two of exposing a child under 16 years to indecent material with two circumstances of aggravation. He was, at the same time, acquitted on one count of indecent dealing with a circumstance of aggravation. The four indecent dealing counts with two circumstances of aggravation involved his daughter then under 12 years of age. The other indecent dealing count involved his son. The two counts of exposure to indecent material, which was a pornographic video tape, also involved that daughter. The count on which he was acquitted also involved that son. It appears likely that he was acquitted on this count because the jury had a reasonable doubt as to whether his conduct in this respect was indecent, the appellant having admitted that, on the occasion in question, he touched his son on the penis but said that this was in an effort to demonstrate the concept of circumcision.
The case was an unusual one in that neither of the complainants gave evidence, the substantial evidence against the appellant being a video tape-recorded interview in which the appellant made admissions in respect of each of the incidents the subject of the counts on which he was convicted. I shall discuss some specific aspects of that recording further below. It is sufficient to say at this stage that it has the appearance of a truthful confession; the appellant admitted some and denied other allegations put to him, on occasions he broke down and cried and there are other indications, to which reference will also be made, that, at least to the extent of the admissions which he made, he was telling the truth.
There is, however, a disturbing feature of this case. It is that the appellant was in police custody at the police station where the video recording took place for about an hour before it commenced, during which unrecorded conversations between him and police officers occurred. These were the subject of dispute on a voir dire the ruling on which is the subject of ground 2 of this appeal. It is convenient to defer further discussion of this feature until that ground is discussed.
The appellant appeals against his convictions on three grounds. They are that:
1. the learned trial judge erred when he failed to direct the jury as to the permissible uses of propensity evidence;
2. the learned trial judge erred in admitting into evidence recordings of conversations between the appellant and police; and
3. the learned judge erred when he:
(a) permitted the appellant to be cross-examined in relation to the manner in which the committal proceedings were conducted;
(b) failed to direct the jury that the omission to raise issues at the committal gave no foundation for an inference adverse to the acceptance of those issues at the trial.
Failure to direct on propensity evidence
During the course of a long recorded interview on 11 May 1998, lasting about two hours with some breaks, in which the appellant made admissions in respect of each of the specific offences on which he was convicted, he also made some admissions capable of showing a propensity to commit offences of this kind. The first of these, chronologically, involved the following exchange:
"Do you think your behaviour is appropriate? -- It's shocking. I don't know what drives – there's got to be something wrong in my head.
Why didn't – why do you do these things? -- Long back as I can remember when I was a boy – I'm not making excuses here – I've been fascinated. It's – it's [indistinct].
You're fascinated by what, sorry? -- Just fascinated with – [indistinct] say? Just –
Can you help me understand that a little bit? I'm just -- ? [indistinct]. -- Yeah, that's what I mean. What say [indistinct] cover [indistinct]. It's sex or – I don't know if that's the right word for it. I just can't put it into words.
So you're fascinated by sex? -- Probably back as far as three that I can remember, at [indistinct], and – every time – like – this happened you'd think back, 'Is it because I'm [indistinct] my life's been?' [indistinct].
So, do you think you have a problem? -- Definitely 'cause I could get some stories that go back as a kid and not – not that I can remember anybody doing anything to me – the things that were done --- ."
This follows a discussion about two specific events involving his son Patrick both of which allegedly occurred shortly before the interview, one of them the subject of one of the counts on which the appellant was convicted, the other involving a matter on which he was not charged.
The second occasion involved the following exchange:
"Why did you stop rubbing her on this occasion? -- Cause it's the wrong thing to do. You don't know how hard I've tried for somebody I could talk to. All this could have been avoided. There's nobody there for a person like me.
And what sort of person is that? -- There's nobody to talk to about my problem.
But you said for a person like you. What sort of person are you? -- Somebody who goes around and touches their kids – abuses their kids.
Was that the only time that you touched her on the vagina? -- No, no. There have been – would have been long spells in between, I can tell you.
Can you – could you control the touching? -- I can't [indistinct] I've tried.
Have you ever spoken to anyone about this problem? Do you think you have a problem? -- I've looked for people in the phone book. Cannot find anybody. Like, after you've done it once in who do you turn to?
Did you speak to your wife? -- I couldn't tell her. I needed somebody else."
As appears from the opening words of this exchange, it followed immediately after an admission of an incident with his daughter, an incident which constituted one of the acts of indecent dealing on which the appellant was convicted.
The third occasion involved the following exchange:
"Well? -- I know it's – I know this is a girl of 15 years old to the stage – and what I've been doing to her – I mean, how do you take the word from a bloke like me. I mean it's hard. I know – you're just going to – and I don't expect you to. I don't expect you to. I deserve what I get."
This exchange occurred during the course of an allegation being put to him by the police officer that he had inserted a pencil in his daughter's vagina. Both before and after this exchange the appellant denied the allegation. The allegation was not one of the incidents charged, no doubt because of his denial and the fact that his daughter did not intend to give evidence.
No attempt was made by the appellant's counsel at the trial to exclude from evidence these parts of the tape-recorded interview or those parts which related to uncharged incidents. Nor were any specific directions sought by the appellant's counsel with respect to this evidence. Nevertheless it was submitted that a direction should have been given that the evidence in the above passages could not be used as proof of the appellant's guilt of any of the specific acts charged and that the failure to give such a direction resulted in a miscarriage of justice. Reference was made to BRS v The Queen.[1]
[1](1997) 191 CLR 275; and see also, with respect to relationship evidence Gipp v The Queen (1998) 194 CLR 106.
However only one question arose for the jury's determination; were they satisfied beyond reasonable doubt that the appellant's apparent confession of the specific acts charged was truthful or were they left with a reasonable doubt that it was false, procured by an improper inducement by police? And to that question the passages set out above were highly relevant for they convey the clear impression that the accused was making a voluntary, sincere and heartfelt confession of his appalling conduct. For it is almost incredible that an accused would, whilst making false admissions of specific offences under the influence of an inducement such as he alleged, also falsely volunteer a guilty passion for his own children.
Nevertheless it may be accepted that a distinction could, and perhaps should have been drawn by the learned trial judge between using this evidence to assist them in determining the truth of the confessions with respect to the acts charged, and using it directly to conclude that, because he had this guilty passion for his children, he was more likely to have committed the offences charged. It may be doubted whether this is a distinction which would be observed in practice by a jury even if they understood it. But it is not one which, in any event, could have made any difference to the verdict, given the question which they had to decide. And it is unsurprising and understandable that the appellant's counsel would not have sought any such direction because it would necessarily have highlighted this highly prejudicial evidence. I do not think that the learned trial judge's failure to give any such direction could have resulted in a miscarriage.
The admission of the confessional evidence
The admissibility of the confessional evidence was contested on a voir dire on the ground that the appellant was induced to make the admissions which he did by a threat from one of two interviewing police officers that, unless he did so, his children would be removed from the family and placed into care and that consequently the confessions were involuntary and inadmissible.[2] The appellant said that this threat was made during the period of one hour, referred to earlier, before the recording commenced. There was a conflict of evidence between the appellant on the one hand and the two police officers on the other about what occurred during that hour but there was no doubt that it included some conversations between the appellant and the police officers.
[2]Criminal Law Amendment Act 1894, s 10.
This Court has commented on previous occasions on the impropriety of police failing to record all conversations with suspects, whether in the police station or in a police vehicle or elsewhere.[3] Suspicion will often fall on honest police officers if this is not done. More importantly, because of the risk of police fabrication of confessions and of inducement of confessions if that is not done, it may be that courts will need, in some cases in which part only of conversations between the accused and police is recorded, to warn the jury of the danger of convicting on the basis of that evidence alone, notwithstanding that that part appears to contain admissions against interest.[4] However it was not argued in this appeal that that course should have been taken for that reason.
[3]See for example, R v Mostyn CA Nos 482 and 491 of 1995, 10 April 1996; R v Armstrong CA No 453 of 1996, 29 April 1997.
[4]Cf McKinney v The Queen (1991) 171 CLR 468.
The argument that the confessional evidence should have been excluded was put on the basis that, in accepting the evidence of the police officers and rejecting that of the appellant, and consequently admitting that evidence, the learned trial judge took into account an irrelevant matter, the appellant's failure to make his complaint about police misconduct at an earlier stage than at the trial; at the committal, to the Criminal Justice Commission or to the prosecuting authorities. It was submitted that this vitiated his Honour's adverse finding of credit against the appellant and his consequent admission of the confessional evidence.
In the course of rejecting the submission that the confession was fabricated his Honour said of the appellant:
"It concerns me that after he had clearly made damaging confessional statements, he says, because of grossly improper conduct by the police, Mr D took no step to distance himself from those admissions or to weaken the effect of them. Nothing was said at the committal. There was no complaint to the CJC. No communication seems to have been sent to the prosecuting authorities. It would be quite wrong to hold Mr D embarrassed by his failure to take any particular one of those steps, which might be thought to prejudice his defence, but in the aggregate I think one relevant feature that a person who said he was overborne by the stress of the situation at Maroochydore Police Station on May 11, 1998, to the point of making prejudicial admissions, which he did not wish to make and which indeed were false, would do nothing at all to distance himself from them."
The appellant's counsel made the point that, whether the appellant, after he had obtained legal advice, made any complaint about this conduct would have depended very much on what he was advised and that he may well have been advised that it was better to take the point, for the first time, at the trial. It appears from the above passage that the learned primary judge also adverted to that possibility and indicated that it would be wrong to hold this failure against the appellant if to complain might be thought to prejudice his defence. But whether his Honour was entitled, in assessing the appellant's credit, to take into account the fact that, in his evidence on the voir dire, he did not suggest that this was why he did not complain or give any explanation for his failure to complain before he did, depends on the scope of the right to silence.
The right is stated in the following terms in Petty v The Queen:[5]
"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."
[5](1991) 173 CLR 95 at 99.
It was not being suggested by his Honour, in considering whether the appellant should have complained about police conduct, that he should answer questions or supply information about the occurrence of any of the offences. According to the video recorded interview, he had already done that willingly. The question was, rather, whether it might be reasonably be expected that a person who had been subjected to police impropriety would complain about that promptly to an appropriate authority especially where, as here, it had resulted in a false but very damaging confession. That does not come within the principle enunciated in Petty. And it was not an error to take into account, as a factor in assessing the appellant's credit, that he had not made any prompt complaint about such a serious infringement of his rights causing such damaging consequences.
On the other hand, as the learned trial judge recognized, there might be valid reasons why the appellant might not complain before the trial, the main one being that it might reasonably be thought that to do so might prejudice an adversarial advantage of surprise. It is therefore plain that, although his Honour considered this factor, as he was entitled to, it was a very minor one in his overall assessment.
It is plain from what his Honour said earlier in the course of his ruling on the voir dire that a substantial reason for rejecting the appellant's contention was that it was inherently incredible that the appellant would think that admitting to sexual abuse of his children would be likely to enhance the prospects of their remaining with the family. Moreover, as also appears, his Honour had before him the recorded interview and he had the opportunity of assessing the demeanour in the witness box of both the appellant and each of the two interviewing police officers. The apparent reliability of the recorded confessional evidence, the inherent incredibility of the appellant's contention and an assessment of the witnesses who gave evidence on the voir dire were plainly the main factors leading to his Honour's admission of the confessional evidence and were, in my view, overwhelming reasons for rejection of the appellant's contention.
For those reasons I do not think it requires any reassessment of credit to conclude that his Honour was plainly correct in admitting the confessional evidence. I would therefore reject this ground of appeal.
Permitting cross-examination by the prosecutor upon the manner in which committal proceedings were conducted on the appellant's behalf and his Honour's failure to direct on this point.
Notwithstanding objection from the appellant's counsel, the learned trial judge permitted the prosecutor to put to the appellant in cross-examination that his counsel at the committal proceedings had not suggested to either of the police officers that they had improperly induced the appellant's confession. The submission that that cross-examination should not have been permitted was based on two passages in Petty v The Queen.[6] In the first of those passages the proposition that evidence of a failure to raise some defence or matter of explanation at committal proceedings is not ordinarily admissible at the trial as a basis for drawing some adverse inference against the accused is based on the right to silence, a right which was not exercised in the present case. Here the appellant undoubtedly made very full admissions, the only question being whether those admissions are true or false. But the second of those passages is based upon the nature of committal proceedings and it may be accepted that there could have been no obligation upon the appellant in those proceedings to disclose the impropriety, by cross-examination or otherwise and there may have been tactical reasons why it would have been unwise to do so. But the appellant's answers were, in each case, that he could not recall whether any such suggestion had been made. The cross-examination did not, therefore, advance the prosecution case or harm the appellants.
[6]Supra at 102, 110.
It would be surprising, given those answers, if the prosecutor raised that matter again and there is no suggestion that he did. It was not mentioned in his Honour's summing up. However, in the course of reminding the jury of the prosecutor's address, his Honour did mention the more general point, to which he had referred in admitting the recorded evidence, that the appellant made no complaint about police misconduct before the trial. His Honour said:
"Mr Courtney's next point was this: surely, he says, if the confession in May 1998 was false, Mr D would not have let it lie for so long without doing something about it. He would have done something about it before this week."
In the course of outlining the submissions of the appellant's counsel his Honour said:
"You can imagine, Mr Parker said, the panic and stress that he would feel in that situation. He does a stupid thing, confesses to things he has not done. He got involved in what Mr Parker called a nightmare. He is a lay person with no experience of these things. He has got to be guided by lawyers. Mr Parker went on to say you should not hold against him the way in which his lawyers might have conducted the committal on his behalf, or indeed his not complaining to the CJC or somebody else about what he said the police had done in that hour or so when things were not being taped on 11 May 1998."
In view of his client's answers to questions about the conduct of his committal and the absence of any other evidence touching on the matter, the submission of counsel for the appellant that they, the jury, should not hold against his client the way in which his committal was conducted was, though correct, unnecessary. However there is a broader question; whether his Honour should have prevented cross-examination of the appellant about his failure to complain to anyone in authority, before the trial, about what he said were police threats which induced him to make false confessions; and alternatively whether his Honour should have directed them that the evidence on those matters was irrelevant.
This question, like that raised by the second ground, does not involve the right to silence. The appellant was not being asked to explain or answer questions about the occurrence of the offences by him. As already mentioned he had apparently done so willingly, the only question being whether his answers were true or false. He was being asked to explain why he did not complain earlier, to anyone in authority, about what he alleged was improper conduct by police. The case therefore does not come within the principle stated in Petty.
Of course it does not follow that an adverse inference should be drawn against the appellant from his failure to complain, as it was suggested he might have, to the Criminal Justice Commission or the Commissioner of Police or in some other way, before he did. There may have been a reasonable explanation for his failure to do so. But that would not have prevented the questions from being asked.
As it turned out, the appellant gave no explanation for his failure to complain about the alleged police misconduct before he did. Even then, of course, it does not necessarily follow that an adverse inference should be drawn, namely that his allegation of misconduct was fabricated. His counsel would have been entitled to suggest to the jury reasons why, notwithstanding the absence of any explanation, the appellant's failure to complain was not inconsistent with that misconduct having occurred. But in my opinion these were questions which were properly left to the jury and his Honour did this by reminding them of the competing submissions of counsel on this question.
I would accordingly dismiss the appeal.
HELMAN J: I have had the advantage of reading the reasons for judgment prepared by Davies J.A., in which his Honour has described the course that the trial of the appellant took. I do not wish to add anything to that account. I agree that the appellant should fail on the first two grounds of appeal, but I am in respectful disagreement with his Honour on the third ground, which in my view has substance.
The learned trial judge should not have permitted cross-examination of the appellant as to the omission to raise at the committal proceedings his allegation that threats had led to his making false confessions. Permitting that course was contrary to the ordinary rule, which applied in this case, that evidence of a failure to raise some defence or matter of explanation at committal proceedings is not admissible at the trial as a basis for drawing an inference adverse to the accused: Petty v The Queen; Maiden v The Queen (1991) 173 C.L.R. 95. In that case applications for special leave to appeal from the Supreme Court of New South Wales by Petty and Maiden, who had been convicted of the murder of Mark White, were heard. It was held that the ordinary rule did not apply, however, because an issue had been introduced at the trial by counsel for Maiden which rendered evidence of the conduct of Maiden’s case at the committal admissible.
The ordinary rule and its inapplicability to Maiden’s case were explained in the following passage in the judgment of Mason C.J., and Deane, Toohey, and McHugh JJ.:
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.
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.
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. (pp 101-102)
When the appellant was cross-examined concerning the conduct of his case at the committal his answers were inconclusive, but nonetheless the Crown prosecutor’s questions could not have failed to lay the foundation for an impression adverse to the appellant in the minds of the jurors. The adverse impression would have been along these lines: the appellant’s allegations about the conduct of the police investigation should have been raised at the committal; he is being evasive as to whether they were or not; therefore they probably were not; therefore his evidence should be regarded as suspect. The appellant’s counsel in his address – in an effort to dispel any such erroneous impression - then dealt with the topic in a way that suggested an inference could be drawn that there had indeed been a failure to raise the appellant’s allegations at the committal. The result, unfortunately then, was that an erroneous initial impression was reinforced by a strong suggestion from the appellant’s counsel. Following that, there was a failure by the learned trial judge to correct the erroneous impression by a suitable direction to ignore a false issue.
The allegations against the police officers were central to the appellant’s case. There was nothing done in the conduct of the appellant’s case at the trial that warranted a departure from the ordinary rule. It should be noted that in Petty v. The Queen; Maiden v. The Queen it was only after the suggestion referred to in the passage quoted had been made that a departure was justified. In that case a retraction of a false allegation before the committal to a witness called at the committal was asserted, so it was not unreasonable to expect that something about the retraction might have been put to the witness at the committal. In this case the point could properly have been made that no complaint was made to the Criminal Justice Commission or to prosecuting authorities, but since the appellant was entitled to remain silent at the committal hearing about every aspect of his case – and it is a common practice for accused persons to do so – no valid point could have been made about the absence of a reference to his allegations at that hearing.
What happened at the trial of the appellant in my view warrants a conclusion that there was a serious miscarriage of justice. I should allow the appeal, order that the verdicts of guilty and convictions be set aside, and order a new trial.
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