R v F

[1996] QCA 490

[1996] QCA 490

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 418 of 1996.

Brisbane

[R v. F]

THE QUEEN

v.

F

(Applicant)  Appellant

_____________________________________________________________________

Pincus J.A.
Thomas J.
White J.

_____________________________________________________________________
Judgment delivered 6 December 1996

Separate Reasons for Judgment of each member of the Court, all concurring as to the Orders made.
_____________________________________________________________________

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.
APPEAL AGAINST CONVICTION DISMISSED.
_____________________________________________________________________

CATCHWORDS:     Criminal - sexual offences - Weissensteiner direction - accused’s failure to give evidence - right of silence - uncontradicted evidence of complainant - discussion of Weissensteiner (1993) 178 C.L.R. 217.

Counsel:Mr S Hamlyn-Harris for the applicant/appellant.

Ms L Clare for the respondent.

Solicitors:Legal Aid Office for the applicant/appellant.

Queensland Director of Public Prosecutions for the respondent.

Hearing date:             22 November 1996.

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 6 December 1996

The appellant, who was convicted of a number of sexual offences after a trial in the District Court, appeals against his conviction; there is also an application for leave to appeal against sentence.  A total of 14 counts went to trial; a nolle prosequi was entered in respect of one and there were verdicts of not guilty in relation to three others.  In the result there were five convictions of indecent dealing, three of wilfully exposing complainants to an indecent video tape, one of wilfully exposing a complainant to indecent pictures and all but two of the convictions related to a particular complainant who will for simplicity be called "the complainant".  Each of the other two complainants was a person to whom the appellant exposed an indecent video tape.

The notice of appeal complains of what was described in argument as a "Weissensteiner" direction (see (1993) 178 C.L.R. 217); a second ground included in the notice of appeal was that the verdicts were inconsistent and unsafe, but that was not pressed. One is left, then, with the argument that the judge gave incorrect directions to the jury as to the relevance of the appellant not having given evidence in contradiction of the complainant’s version of events. The appellant neither gave nor called evidence.

The directions which are objected to were as follows.

"Within a criminal trial the onus of proof rests on the prosecution to prove the guilt of the accused person.  There is no onus on an accused person to prove his or her innocence.  The accused man in this trial chose not to give evidence.

An accused person is not under any legal compulsion to give evidence.  The law allows but does not compel an accused person to give evidence at his trial.

Accordingly, when an accused person chooses not to give evidence, the rule is that no adverse inference should be drawn against him because he decided not to give evidence.  Neither you nor I know why the accused man in this case decided not to give evidence and no provision is made in our system for the jury to be given an explanation for an accused person’s decision not to give evidence.  There are a number of possible reasons an innocent man might decide not to give evidence in a criminal trial and for that reason no inference - that is, no inference of guilt - should be drawn against him from the decision not to give evidence.

The features I have just mentioned of our system reflect our basic ideas of fairness and a concern to protect the individual.  All actions, however, have consequences.  One consequence of the decision not to give evidence in this trial is that at the end of the trial the evidence of each of the complainants remains uncontradicted by any evidence given by the accused.  V's evidence of the accused man’s conduct towards her was not met by any denial on oath from the accused.  The same can be said of E's evidence and of J's evidence and of B's evidence, their evidence in each case was not met by any denial from the accused on oath.

In the case of each of the complainants’ evidence therefore that evidence is uncontradicted by any evidence given by the accused.  Is there any significance in the fact that the evidence of each of the complainants is uncontradicted by any evidence given by the accused man?  Well, firstly it must be said that the circumstance evidence is uncontradicted is not a circumstance which by itself proves the truth or reliability of the uncontradicted evidence, but it is a circumstance that you may consider when you are assessing the uncontradicted evidence.

By way of further explanation, V, for example, gave evidence.  She came to the Courtroom and she entered the witness-box and she told you what she said happened to her.  She was subjected to cross-examination on what she said.  In that way the evidence she gave was tested.  The accused did not give evidence and as a consequence any denial by him to the police was not subjected to the scrutiny of cross-examination.

On some occasions a jury might find it of assistance in their assessment of the evidence actually given in the trial to know that that evidence is uncontradicted by any evidence given by the accused.  On other occasions a jury might find it of no assistance in the assessment of the uncontradicted evidence.  In this case there are only two people in the world who know what happened between the accused and V and for that matter the accused and J and for that matter the accused and the other girls E and B.

V, E, B and J gave evidence.  The assessment of the evidence actually given by them, as I have said, is entirely your responsibility.  As a consequence, it is ultimately a question for you to assess that evidence and to consider to what extent, if at all, the fact that evidence goes before you uncontradicted by any evidence given by the accused assists you in your assessment of their evidence.  So those are the directions on the onus of proof and that is the first of the general directions."

"In this case the mother’s evidence that she took V's complaint to the accused and that the accused in turn denied the complaint was not put in issue when the mother gave evidence, that part of the mother’s evidence was not challenged.  So there would seem to be no reason why you should not accept the mother’s evidence about going to the accused with the complaint on each occasion.  Since that evidence was not put in issue by the defence, you may infer that when the mother and V gave evidence that V did complain of the accused man’s conduct to her, their evidence was, in fact, correct.  So in considering the uncontradicted evidence of V, for example, are you assisted by this evidence suggesting consistency of conduct on V's part over a longer period of time before the complaint was made to police?  That evidence does not amount to corroboration but you may use it in the way that I have just explained." (emphasis added)

Other directions, not complained of but relevant to the appeal, are that the judge told the jury that denials of accusations made against the appellant (which included denials of what became the charges on which he was convicted) in an interview between the police and the appellant were part of the evidence and that the jury might give them such weight as they considered appropriate.

It will be noticed that in the passages complained of there is a degree of repetition; the learned judge told the jury a number of times that Crown evidence was uncontradicted by evidence given by the appellant.  The extent of this repetition, which some might think to be rather unusual, was not however the gravamen of the appellant’s criticism of the directions.  What Mr Hamlyn-Harris, for the appellant, chiefly relied on as constituting an impermissible direction was the first part of the sentence beginning "Well firstly . . . ", up to and including " . . . uncontradicted evidence", which is emphasised above.  He emphasised the use of the expression "by itself" and argued that this implied that the circumstance that evidence was uncontradicted could prove the truth or reliability of uncontradicted evidence, although it could not do so by itself.  A second but lesser ground of complaint was the sentence beginning "As a consequence . . . ", also emphasised above; Mr Hamlyn-Harris’ argument was to the effect that the suggestion that the lack of contradiction might assist in the assessment of the evidence was a misdirection.

Neither of these complaints was made to the trial judge.  Indeed, counsel for the appellant below (not Mr Hamlyn-Harris) did not ask for any redirections; in my opinion the summing-up as a whole reads as a fair, concise and balanced one.

I would dispose of the second and lesser complaint briefly. What the jury was told was that it was for them to consider to what extent if at all the fact that certain evidence was uncontradicted by evidence from the accused assisted them.  The judge did not even say that they should treat it as of any assistance; he left the whole question to them.  If the criticism advanced is correct, then what the judge should have said was that it would be wrong and unlawful for the jury to take into account in any way the fact that the evidence was uncontradicted; we were referred to no authority for that proposition.  And what the judge said did not go as far as, according to the analysis of Weissensteiner set out below, his Honour might legitimately have gone in inviting use by the jury of the fact that the complainant’s story was uncontradicted by any evidence.

I turn, now, to the major complaint, which is conveniently considered in the broad context of the law’s current approach to the right of silence.  Discussion of the right of silence and of the right not to incriminate oneself principally involves two issues.  First, there is the question whether in a particular situation the right exists at all and, secondly, where (as is usual) it does exist, the question arises whether any adverse consequences may be permitted by the law to flow from its exercise.  As to the first point, little need be said.  The general law does not recognise any exceptions to the rule that it is lawful to decline to answer questions, if the answer may incriminate - indeed, the general law does not oblige citizens to answer questions at all, whether these are likely to incriminate or not.  Parliaments have in some respects taken a different view; sometimes the obligation to answer questions, including incriminating questions, is made explicit, but the difficulties judges have encountered in this area have been principally concerned with statutes which have been argued to alter the general law implicitly.  An interesting example is Police Service Board v. Morris (1985) 156 C.L.R. 397. Two policemen were charged with having disobeyed a lawful order, by refusing to answer questions when ordered to do so by an inspector; a regulation prohibited disobedience of lawful orders. The High Court held that, by the regulation, the privilege against self-incrimination was impliedly excluded; the discipline of the police force was thought to demand this result (see per Brennan J, as his Honour then was, at 413). A case having a similar tendency, in the same volume, is Controlled Consultants Pty Ltd v. Commissioner for Corporate Affairs (1985) 156 C.L.R. 385.

So difficulties can arise in determining whether a statute takes away the relevant privilege, on its proper interpretation; if it does, this is truly an abrogation of the right of silence. The other aspect of the problem, dealt with in Weissensteiner, is whether and if so to what extent adverse consequences may be attached to the exercise of the right of silence.  Here, both statute and the general law have played a part.  The most familiar example, in this State, of parliamentary intervention is the requirement of the Penalties and Sentences Act 1992 that admissions of guilt be taken into account: s. 9(2)(i), s. 13; as between two offenders whose circumstances are otherwise similar, one of whom has confessed and pleaded guilty and the other has done neither, the lower sentence will ordinarily be imposed on the former and the higher on the latter. This is attaching a legal disadvantage (heavier imprisonment) to exercise of the right not to incriminate oneself.

The issue arising in cases of the present kind - what may or should be said by the judge about an accused not having given evidence - is in my opinion most usefully viewed as just another of the problems which must be faced when the question is posed: to what extent if at all may disadvantages be allowed to flow from exercise of the right of silence?

One starts from the commonsense proposition that a jury, left to itself, will often be inclined to hold it as a point against the accused, and in favour of the prosecution, that the accused has chosen to give no evidence.  Some of the discussion since Weissensteiner seems to assume that prior to that decision the law was that juries were to be told not to follow that inclination.  But that is not so;  a number of statements of high authority, from Blatch v. Archer [1774] 98 E.R. 969 at 970, R v. Burdett 106 E.R. 873 at 898, Kops (1893) 14 L.R.(N.S.W.) 150, Tumahole Bereng [1949] A.C. 253 at 270, Morgan v. Babcock & Wilcox Ltd (1929) 43 C.L.R. 163, May v. O’Sullivan (1955) 92 C.L.R. 654 at 658-659, and Bridge (1964) 118 C.L.R. at 615 are usefully collected in the first set of reasons in Weissensteiner, at 225-227; there follows this remark:

"We have quoted rather more extensively from the cases than would otherwise be necessary in order to show that it has never really been doubted that when a party to litigation fails to accept an opportunity to place before the court evidence of facts within his or her knowledge which, if they exist at all, would explain or contradict the evidence against that party, the court may more readily accept that evidence."

If the law is that the court may, when this situation arises, "more readily accept" the Crown evidence, it seems plain that the jury should be so instructed.  It would seem equally plain that it would be a misdirection to tell them the contrary - that a lack of contradiction of the Crown case is never to be used in favour of the Crown.

From a reading of the next set of reasons to be found in Weissensteiner, that of Brennan J. and Toohey J., it appears that their Honours took a somewhat similar view of the relevance of the Crown case being uncontradicted.  Their Honours said:

"Once juries came to know that an accused is a competent witness in his own defence, it was inevitable that they would take account of an accused’s failure to testify when his testimony might be expected to deny, explain or answer the case against him." (233)

"If there is insufficient evidence of the facts from which an inference of guilt could be drawn, a failure to testify cannot supply the deficiency.  But the jury may draw inferences adverse to the accused more readily by considering that the accused, being in a position to deny, explain or answer the evidence against him, has failed to do so." (235)

" . . . where there is no statutory prohibition against judicial comment, a judge may tell the jury that where the facts which they find to be proved by the evidence can support an inference that the accused committed the offence charged and where it is reasonable to expect that, if the truth were consistent with innocence, a denial, explanation or answer would be forthcoming, the jury may take the accused’s failure to give evidence into account in determining whether the inference should be drawn." (236)

It appears to me clear that Weissensteiner supports the view, as do the earlier cases referred to by the five judges, that where one would expect the Crown case to be met by a sworn denial from the accused, the absence of such denial, while not proving any fact, may assist towards acceptance of the Crown case if it is otherwise adequate.  The principal difference between the reasons I have first discussed (those of Mason C.J., Deane and Dawson JJ.) and the second set (those of Brennan and Toohey JJ), as to this point, is that in the second set of reasons but not in the first it is explicitly recognised that, where the accused’s failure to give evidence may be taken into account, a possible use of it is to support an inference of guilt.

Here, the judge distinctly told the jury that the onus of proof lay on the Crown, that the accused did not have to give evidence, that no adverse inference should be drawn against him for that reason, that there were a number of possible reasons why an innocent man might decide not to give evidence and that on some occasions a jury might not find it of assistance that the accused had given no evidence.  It would have been quite inconsistent with these directions to say that the mere failure to give evidence, with other circumstances, could prove the truth of the Crown case.  For that reason it is my opinion that the judge’s use of the expression "by itself" could not sensibly have been taken by the jury to imply the contrary.  The omission of those two words would have improved the directions which were, as it seems to me, in accordance with the majority view in Weissensteiner, but their presence does not lead to the conclusion that the jury were misled.

I would dismiss the appeal.

As to the application for leave to appeal against sentence, having read the reasons of Thomas J. dealing with that subject, I agree that the application should be dismissed.  I have the opinion that the sentence imposed for the rape was rather a high one, but not at a level justifying adjustment by this Court.

REASONS FOR JUDGMENT - THOMAS J

Judgment delivered 6 December 1996

Appeal against conviction

Objection was taken to what was called a "Weissensteiner direction" by the learned trial judge.  Whether the direction in question should be so characterised is doubtful, as his Honour directed the jury that they could not use the failure of the accused to give evidence as evidence of guilt on his part.  The objection was to statements by the learned trial judge that if the jury saw fit it might, in assessing the evidence of the complainant girls, find the circumstance that their evidence was uncontradicted by evidence from the accused, to be of assistance.

Weissensteiner's case[1] shows that disadvantage may flow to an accused person from exercising in court what has virtually been called a right to silence, and that that disadvantage may be emphasised by judicial comment.  It does not follow that similar comments are appropriate in every case, but it is not yet possible to set out principles that will determine whether it is appropriate or not to make a particular comment in all cases.  I do not think that the question can be answered solely by the nature of the case, that is to say whether it happens to be based on circumstantial evidence, or partly on direct evidence and partly on circumstantial evidence, or on direct evidence where the only people who really know what happened are the complainant and the accused, and the accused leaves the complainant's version uncontradicted.  Other factors may serve to demonstrate whether the judge's comments were fair in the context of the particular case.  For example in a case of the last-mentioned kind, the fact that an accused was prepared to answer searching questions from the police, where the record of interview was before the jury, the expectation of explanation may be less than in a case where the accused stands mute both before the police and before the court.

[1](1993) 178 CLR 217.

In the present case the learned trial judge's comments lay comfortably within laws of evidence which have long been recognised as applicable to the reception and evaluation of evidence, noting in particular Blatch v. Archer (1774) 98 ER 969 and R v. Burdett (1820) 4 B and Ald 95, 161-2; 106 ER 873, 898 (KB). The statement of Abbott CJ in the latter case is often quoted, and it will do no harm to quote it once more:

"No person is to be required to explain or contradict, until enough has been proved to warrant a reasonable and just conclusion against him, in the absence of explanation or contradiction;  but when such proof has been given, and the nature of the case is such as to admit of explanation or contradiction, if the conclusion to which the proof tends be untrue, and the accused offers no explanation or contradiction;  can human reason do otherwise than adopt the conclusion to which the proof tends?"

The following two statements from Weissensteiner, in my view demonstrate that the direction against which the appellant complains falls within the limits of a proper direction to the jury in circumstances such as the present:

". . it has never really been doubted that when a party to litigation fails to accept an opportunity to place before the court evidence of facts within his or her knowledge which, if they exist at all, would explain or contradict the evidence against that party, the court may more readily accept that evidence.  It is not just because uncontradicted evidence is easier or safer to accept than contradicted evidence.  That is almost a truism.  It is because doubts about the reliability of witnesses or about the inferences to be drawn from the evidence may be more readily discounted in the absence of contradictory evidence from a party who might be expected to give or call it."

(Per Mason CJ, Deane J and Dawson J at 227)

". . a judge may tell the jury that where the facts which they find to be proved by the evidence can support an inference that the accused committed the offence charged and where it is reasonable to expect that, if the truth were consistent with innocence, a denial, explanation or answer would be forthcoming, the jury may take the accused's failure to give evidence into account in determining whether the inference should be drawn."

(Per Brennan J and Toohey J at 236)

I should add that I have read the draft reasons of Pincus JA and am in general in agreement with his Honour's conclusions on this question.

The appeal should therefore be dismissed.

Application for leave to appeal against sentence

The applicant was convicted of one count of rape, six counts of indecent dealing with a child under sixteen years, and four counts of wilful exposure to indecent material.  The sentences were eight and a half years' imprisonment, three years' imprisonment and six months' imprisonment respectively, the sentences being concurrent.

The applicant had an insignificant criminal history consisting of four drink-driving offences and one of wilful damage followed by a breach of bail.

The circumstances involve essentially one complainant, a thirteen year old girl living in his household, although the exposure to indecent material count involved two further complainants.  The applicant commenced a relationship with the girl's mother and moved into the family home.  His indecent touchings of her were resisted but he persisted.  There is no doubt that persistent attempts were made to corrupt her, including through showing her pornographic material.  The earlier occasions involved putting his hand inside her shirt and attempting to remove her pants.  This progressed to his asking her to "rub his dick for him" and exposing his penis, followed by a more boisterous incident which was interrupted by a boarder in the house.  On another occasion he put his hand down the front of her pants so that his fingers went in "a little bit but not right in".

The next occasion was the rape.  Whilst the complainant and the applicant were walking home after a meal he pulled her into a public toilet, sat her on the toilet seat and despite her resistance removed her pants.  The penetration that was achieved was described as "only a little bit".  The incident went on for about two or three minutes before she was able to push him away, pull up her pants and walk home.  She later discovered that she was bleeding.

The relevant circumstances include the abuse of the applicant's authority as de facto father and his complete lack of remorse.  There was no plea and the complainant was subjected to a trial where the defence seems to have been the hope of inducing doubt or disbelief of the complainant's allegations.  There was no gratuitous violence or threats involved in this matter, but there was a persistence over a period of seven months.  The persistence is illustrated by the fact that the rape and some other offences occurred after complaints had been made to the child's mother and after the accused had been confronted by the mother in respect of his conduct towards the complainant.

The court was supplied with a schedule of sentences for offences of this kind (in particular rape) in this court, but it will not be necessary to discuss the schedule.  Counsel for the applicant essentially based his submission upon the case of Attorney-General v. A (CA 216 and 232 of 1992, unreported, 18 December 1992) where this court substituted a sentence of eight years' imprisonment with a recommendation after three years with respect to the rape of the daughter of the appellant's de facto wife, who was twelve years of age.  There were two counts of rape and the appellant pleaded not guilty.  He had some previous convictions but they were not regarded as of particular consequence.  The court found that there had been no suggestion of any conduct of that kind before, and the case lacks the persistence and apparently planned conduct which is a feature of the present case.

That decision, and C (CA 262 of 1991, unreported, 3 March 1992) where this court upheld a sentence of eight years with a recommendation after two years may suggest that the present sentence was slightly on the high side.  However when one takes into account that in C, although the complainant was only nine years old, there was a single isolated act, out of character, fuelled by alcohol and in the course of a post-traumatic stress syndrome, accompanied by remorse and an early plea of guilty, the difference may easily be accounted for.  I do not propose to discuss the schedule.  It tends to confirm that the present sentence is in range although possibly towards the higher end of it.  I am aware also that often in a contested trial such as this the learned trial judge has greater than usual advantages over this court in observing the complainant, members of her family and the respondent and in perceiving the level of seriousness of the conduct.  A considerable discretion is properly open to the sentencing judge in such cases.  I would refuse the application for leave to appeal against sentence.

REASONS FOR JUDGMENT - WHITE J

Judgment delivered 6 December 1996

I have had the opportunity of reading the reasons for judgment of Pincus JA and Thomas J, and am in agreement with their Honours' observations on the "Weissensteiner direction".  In the present case, apart from some unnecessary repetition, there was nothing said by the learned trial Judge to the jury which was not well within what has been regarded for a very long time as permissible, R v. Burdett (1820) 4 B & Ald 95; 106 E R 873.

I agree with Thomas J's observations on the application for leave to appeal against sentence.  The sentence of eight and one half years for this rape may be regarded as at the higher end of the range, nonetheless, the persistent offending against the child over a period of some months, the undermining of her trust and confidence in her mother when the applicant denied any wrongdoing after the child had complained to her, and his lack of remorse, confirm that the sentence is not manifestly excessive.

I would dismiss the application for leave to appeal against sentence.