R v Fry - [2006] SADC 36

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v FRY
[2006] SADC 36
Reasons of His Honour Judge Tilmouth
30 March 2006
CRIMINAL LAW - EVIDENCE - CONFESSIONS AND ADMISSIONS - STATEMENTS - STATEMENTS MADE IN PRESENCE OF ACCUSED AND RELATED CONDUCT - PARTICULAR CONDUCT - DENIALS
The accused was charged with causing death by dangerous driving. Shortly after the accident the accused made self-serving statements to various eye witnesses. Some nineteen days later he gave formal interview to the police claiming not to remember the accident. The prosecution proposed to tender the latter but not the former.
Held: It was competent for defence counsel to elicit the former self-serving denials as evidence of the truth thereof.
Mule v The Queen (2005) 221 ALR 85, 79 ALJR 1573 at [14]; Spence v Demasi (1988) 48 SASR 536; R v Rymer [2005] NSWCCA 310; BC200506636; R v Su, Katsuno, Asami and Honda [1997] 1 VR at 65, applied.
R v Callaghan [1994] 2 Qd R 300; R v Kochnieff (1987) 33 A Crim R 1, not followed.
R v Flowers (2005) 153 A Crim R 110; R v S (2002) 132 A Crim R 326; R v Middleton (1998) 19 WAR 179; (1998) 100 A Crim R 244, discussed.

R v FRY
[2006] SADC 36
The charge

The accused Brett Fry was placed in the charge of a jury, on his trial for causing death by dangerous driving[1]. Brief particulars of the offence are that in the early hours (around 12:20 – 12.30 am) of Sunday morning 10 November 2002, he drove his Nissan Silvia coupe at such a high speed that he lost control when negotiating a sweeping left hand bend, three kilometres North of Kersbrook whilst heading north towards Williamstown, in the Adelaide Hills. His vehicle collided with a tree, causing his front seat passenger and friend Joel Stanford, to be thrown out and killed. There is also an allegation that he was appreciably affected by alcohol at the time, as his blood alcohol level is alleged to have been up to around 0.16%.
[1] The jury later returned a verdict of not guilty.
The issue for determination
Before the jury was empanelled, various submissions were made concerning the reception or otherwise of certain evidence, which I ruled to be admissible, giving what was then described as an “indicative ruling”[2]. What follows are the considered reasons for so doing.
[2] Transcript 9 March 2006 p 230 l 27
At issue are certain portions of statements made by Mr Fry very shortly after the subject collision, but said by the prosecution to be wholly self-serving and therefore inadmissible. It is further contended by the prosecutor that defence counsel was precluded from eliciting such statements in cross examination. The prosecutor does however intend to prove an interview the accused gave the police later on 29 November 2002. So that the issues can be better understood it is necessary to place them in context, and summarise the evidence in contention.
Background facts in brief
The accused was 18 years old at the time, a ‘P’ plate driver, and had owned the vehicle, for about five months. He and the deceased were locals to the Kersbrook/Williamstown area. On the night in question, which was fine and dry, both were out drinking quite a deal of alcohol, in at least two hotels in Williamstown. They left sometime after 11pm, however no one deposed to seeing the car leave, so there is no conclusive evidence as to how many occupants there were in the vehicle from that point in time onwards. Later, sometime after midnight, Mr Wilkey and his son, who were returning home from a birthday party in the Kersbrook area and driving along a stretch of the road just North of Kersbrook travelling in a northerly direction, were overtaken by a car travelling at what both described as an extremely fast speed, which must have been the accused’s. A short time later they saw in the direction this car headed, a glow of lights in the distance. Upon investigating they came across a mangled car, starting to catch on fire and they also saw the body of the deceased on the roadway, a number of metres away.
They and another motorist Mr Archer who arrived at the scene a shortly before them, heard moans coming from the wreckage. They found the accused slumped over the left front side panel of the vehicle, so they pulled him free and took him a safe distance away, as the fire was intensifying. An ambulance was called arriving at 12.50 am and departing at 1.05 with the accused, who was taken to the Lyell McEwen Hospital where he was admitted for several days. On admission he was seen to have injuries to the left side of his body, a broken left collarbone, and fractured vertebra.
Police officers from Major Crash Unit examined the site that night. The bend in the road where these events took place was within a 100kph limit, although an advisory sign of 65 kph was erected on the approach road. There was evidence in the prosecution case that the minimum speed of the accused’s car was somewhere between 79 and 99 kph shortly before impact with the tree. Tyre marks identified on the sealed bitumen surface, suggest it travelled around the bend veering slightly over to the incorrect side of the road, then begun to yaw anti-clockwise partially out of control, striking a road sign, a small bush, and then the tree, the latter causing most if not all the damage. It is the case for the prosecution that on impact with that tree, the deceased was ejected from his front passenger seat, a view consistent on the evidence with the fatal injuries he sustained. The rear back seat area split from the front half of the car and overturned.
When interviewed 19 days later, Mr Fry told police he was not sure if he was the driver, that he mainly drove his car on weekends and on some evenings when he would go out, and that he was familiar with that particular section of road. He also told them that on this particular Saturday night, he was out with the deceased and that his car was parked for a time at the Williamstown Hotel or thereabouts. He admitted they drank cocktails, but couldn't remember anything occurring after the Williamstown Hotel and the moments shortly after the crash, when he was “coming to”. As well, he told them he could not remember anybody else being in his car, except for the deceased and that the vehicle was mechanically in good order.
The prosecution called expert evidence to the effect that the driver would be expected to have moved to the left following impact, missing the steering wheel but possibly impacting with the dashboard as the car began to slow to a stop, and to have sustained moderate orthopaedic injuries to the left side of the body. The position where Mr Fry was found by the bystanders and the injuries noted later at hospital, are consistent with this reconstruction of the events. The expert witness for the prosecution was also of the view that it was highly unlikely other passengers could have been in the rear seat and have ended up in the position the accused was found to be. The inference the jury will be asked to draw from all this evidence is that there were only two persons in the vehicle that night, one of them the deceased who was on all accounts the front passenger, and the other the accused, who could therefore only have been the driver.
The evidence in dispute
The following evidence is drawn from statements of the witnesses concerned or evidence given by them. The first is Mr Archer. As he was driving southwards in the direction of Kersbrook, when he came across the scene shortly after the collision. He says that he assisted with the accused’s removal from the wreckage as he was still semi-conscious. Whilst still in the car Mr Archer asked “how many people were in the car?” and the accused replied “there were three of us”[3]. Mr Archer deposed to the accused appearing very confused and several times wanting to get back to the car to “help them”[4], to the point that Archer had to restrain him to prevent him from doing so, the vehicle then being totally engulfed in flames. The first portion of these exchanges took place as Mr Fry was being dragged free of the vehicle, and the latter portions must have been within a few short minutes thereafter[5].
[3] Trial Transcript p531 L18-33.
[4] Trial Transcript P532 L24-31.
[5] Trial Transcript P534 L27-36.
Mr Archer also claims to have overheard a conversation between a man he did not know and who was not referred to by any other witness, and the accused, whom he described as being a man wearing a suit, to the effect that the accused was asked if he had been driving the vehicle and he replied “nah, I couldn’t drive a car man, I'm too out of it”. It is not entirely clear when or where this conversation took place.
Next Mr Daniel Wilkey, a passenger in his father’s vehicle described above, says the accused was singing out to get him away from the heat of the fire coming from the car and that there could be other people in the car. It appears that he assisted Mr Archer to rescue the accused from the wreckage.
Shaun Walkington and his brother Matt were also travelling into Kersbrook, coming from the North, when they came across the scene. After Mr Fry was dragged away from the car he thought Mr Fry was “conscious but confused” and asked him if anyone else was in the car, to which Fry replied he “didn't know” and that it “could have been a full car load”. Shaun Walkington says the accused was constantly asking “who was driving the car?” and also asking for his car keys.
Matt Walkington claims to have assisted the accused at the scene, when he overheard him saying “help the others”[6] and later after sitting him down, Matt asked "how many people were there" and his reply was “a car load”[7].
[6] Trial Transcript P289 L10-30.
[7] Trial Transcript P290 L34-38.
Finally the defence wishes to prove that some thirty or forty minutes following the impact, the accused told an ambulance officer Mr Lacy, at sometime after 1.05 am, enroute to hospital, that he was in the rear seat behind the driver and there were “four of them in the car”.
A threshold issue?
In the absence of tender by the prosecution, the defence seeks to elicit these various utterances by the accused, as having testimonial value on the issue of whether the accused was the driver of the vehicle. It maintains this submission on the footing that these statements, although technically hearsay, are admissible as an exception to the exclusory principle, that they are all admissible as part of the res gestae and that in any case they ought to be admitted in the interests of justice.
I am prepared, for the purposes of these reasons, to assume these various statements are entirely self-serving, but I remain by no means convinced this is correct. It is arguable there are implied admissions inherent in what was said by the accused, namely that he was in the car as a passenger; either way he was involved in the collision. These are facts upon which a jury might infer that he could have been the driver. The statement that he was in the rear seat stands somewhat differently and might be used in the hands of the prosecutor as a lie, going to the credit of the accused, or even potentially as alternative evidence of a “consciousness of guilt”[8], or indeed as circumstantial evidence capable of supporting the inference that he was, to adopt an expression of Vanstone J in R v Collie[9] “attempting to lead suspicion away from himself”. The latter considerations directly arise in this case from the statements that there were three other people, and a “car load” in the car, both being arguably demonstrable lies in the light of conclusive forensic evidence given in both the prosecution and defence cases, that no more than two people could have been passengers.
[8] Edwards v The Queen (1993) 178 CLR 193, 208.
[9](2005) 91 SASR 333 at [124].
Having said that, it can be accepted the inference the accused was the driver could be readily drawn from quite independent evidence, particularly that the car was owned and registered in his name and perhaps from the unlikelihood in all the circumstances, of someone else having driven the car, but that is another matter.
“Mixed” statements containing admissions
The authorities have long since the matter was clarified in Queen Caroline’s Case[10] and The Queen v Higgins[11] been very clear that when an accused makes statements containing both inculpatory and exculpatory components, they have to be admitted as a whole. That statement of principle became accepted in Australia by the High Court in Jack v Smail[12], a rule described by Griffiths CJ[13] as “simply a rule of fair play”, was applied in South Australia in The Queen v Karpany[14], affirmed by the Full Court in Spence v Demasi[15] and also adopted in New South Wales in R v Williamson[16]. It was applied to Queensland by the High Court in Griffiths v The Queen[17] and reaffirmed by the High Court quite recently in Mule v The Queen[18]:
The proposition that the whole of the recorded matter was available as evidence for the consideration of the jury was not in contest in this appeal. It reflects the accepted view of the law in this country, and it accords with the current state of the law in the United Kingdom: Lopes v Taylor[19], R v Cox[20], Spence v Demasi[21], R v Aziz[22].
[10] (1821) 1 St Tr (NS) 949 and (1892) 3 ER 603.
[11] (1829) 3 C & P 603; 172 ER 568.
[12] (1905) 2 CLR 684
[13] At 695
[14] [1937] SASR 377 at 379
[15] (1988) 48 SASR 531 at 540, 541
[16] [1972] 2 NSWLR 281, 294-296.
[17] (1994) 76 ACrimR 164 at 169
[18] (2005) 221 ALR 85. 79 ALJR 1573 at [14].
[19] (1970) 44 ALJR 412.
[20] [1986] 2 Qd R 55.
[21] (1988) 48 SASR 536.
[22] [1996] AC 41.
Wholly exculpatory statements!
Although the principles respecting the admission of “mixed” statements appear now well settled, the position with respect to wholly exculpatory statements by an accused is quite the opposite. As the third Australian Edition of Cross on Evidence points out [para. 17.91] “very little is to be found in the books” on the question and the authors justifiably conclude “there has been a discordance within the authorities in Australia” on the point. The current (loose-leaf) Edition[23] treats the conduct of the prosecution case as in itself leading to an exception to the hearsay rule, explains that “it is a live question how far it is open to the tendering party to refuse to tender more than the admissions and self-serving portions closely related to them”, and proceeds to point out in a footnote that where the prosecutor tenders no admissions “the accused cannot tender, or seek to elicit by cross-examination, the self-serving parts”, citing R v Callaghan[24] and R v S[25], two Queensland authorities discussed later in these reasons. In another passage[26] Cross also asserts "spontaneity, relevance and weight in the statement are not passports to admissibility".
[23] (2006 para 22455).
[24] [1994] 2 Qd R 300
[25] (2002) 132 A Crim R 326.
[26] (Para 17335).
Admissions an exception to the hearsay rule.
The basic principle is that an admission or confession by an accused is evidence of the fact as an exception to the rule against hearsay. Wigmore bluntly maintains that “statements denying guilt cannot be confessions….if legal terms are to have any meaning”[27], a rule he hastens to point out “in practice not always strictly obeyed”. The rationale for admitting declarations against interest is that they are more likely to be true.
[27] 3^rd Edition §821
Another view is that mere denials have no probative value, are therefore irrelevant and hence inadmissible: Graham v The Queen[28], R v Haycock[29]. A further related line of authorities suggests the prosecution cannot be compelled to call evidence in the case of mere denials by an accused and nor can the accused elicit them in cross-examination or give evidence of them for that matter during the course of the defence case: R v Graham[30]; R v Newsome[31]; R v Wogandt[32]. That principle has its genesis in the famous proposition propounded by Parke J in R v Higgins (above):
“Now, what a prisoner says is not evidence unless the prosecutor chooses to make it so, by using it as part of his case against the prisoner, however, if the prosecutor makes the prisoner’s declaration evidence, it then becomes evidence for the prisoner as well as against him, but still, like all evidence given in any case it is for you to say whether you believe it”.
[28] (1998) 195 CLR 606, [40].
[29] [1989] 2 Qd R 56, 59.
[30] (1972) 26 DLR (3d) 579.
[31] (1980) 71 CrAppR 325.
[32] (1988) 33 ACrimR 31.
Indeed in Allied Interstate (Qld) Pty Ltd v Barnes[33] Barwick CJ said:
“The fact that a statement by the driver of the vehicle that the destination of his load was Sydney might be regarded as self-serving would not make the information in the checking slip, otherwise properly in evidence, irrelevant in the resolution of the nature of the carriage, although the tender of a self-serving statement not otherwise in evidence and having no other basis of admissibility would be rejected”.
But in Lopes v Taylor[34] Gibbs J (as he then was), expressed the view that in some Australian cases, self-serving statements made in the course of an admission, were available only as explanatory of or as qualifying the admission, whereas his Honour expressed another view in Eyre v Nationwide News Pty Ltd[35] that in “some cases self-serving statements may be regarded as of little cogency”. In doing so he disagreed with the remarks of Adam J in Day v Dyson[36], a decision also discussed later in these reasons.
[33] (1968) 118 CLR 581 at 585.
[34] (1970) 44 ALJR 412 at 421.
[35] (1968) 13 FLR 180 at 185.
[36] [1965] VR 165.
The recent Australian authority to the effect that self-serving statements are inadmissible, have their source in R v Callaghan[37]. That case involved a conviction for the unlawful use of a motor vehicle. In an exculpatory record of interview taped about six hours after apprehension, the accused gave an account to police that he was in the backseat and did not know the car was stolen. As to this evidence Fitzgerald P found it unnecessary to reach a firm conclusion in relation to admissibility[38] but went on to observe the circumstances were “enough to deny the existence of any temporal connection between the exculpatory statements” and the earlier events[39]. In their joint reasons, Pincus JA and Thomas J regarded the English position as inconsistent with “the stream of Australian authority at least since” Lopes v Taylor[40] and including R v Williamson[41], Gardner v Duve[42], Herbert v The Queen[43] and Spence v Demasi[44].
[37] [1994] 2 Qd R 300
[38] At p300.
[39] At p301.
[40] (1970) 44 ALJR 412, 421
[41] [1972] 2 NSWLR 281, 294-296
[42] (1978) 19 ALR 695, 703-704
[43] (1982) 6 A Crim R 1, 29-32
[44] At 540-546.
As to the English authorities their Honours observed (at p303):
“The implication is that self-serving statements are generally admissible if the Court, in its discretion, thinks that the statement is spontaneous, relevant and supportive of some other testimony in the case. With all respect, no satisfactory authority explains the introduction of such a rule which appears to us to raise considerable problems. The use to which the jury may put the evidence once admitted raised further complications, as they are to be told that it is not evidence of the truth of the facts stated.”
“There may be exceptional cases where the interests of justice require some special qualification of a strict application of the hearsay rule (eg Daylight (1989) 41 A Crim R 354; cf Walton (1989) 166 CLR 283, 293), but it is highly desirable that the limits upon admissibility of evidence remain identifiable. If an accused person can introduce his own self-serving version to a police officer as evidence, why may he not also introduce such versions that he gives to others at the scene, or to his wife or anyone else? If an accused can corroborate himself by means of his own consistent statements why may not other defence witnesses do so? Why for that matter should not the prosecution witnesses similarly be able to do so?
A number of rationales have been suggested for the non-receivability of self-serving statements. One of these is the danger of manufactured evidence being put before the jury … Another is that “self-serving statements are inherently unreliable, and any rule which keeps them out has some justification” … They certainly lack the rationale which justifies the reception of admissions against interest as an exception to the hearsay rule. In our view there is no good reason to sanction the introduction of such evidence …”.
Another example of the same attitude is R v Kochnieff[45] where Connolly J (with whom Kelly SPJ and Moynihan J agreed) said[46]:
The proposition that a purely self-serving statement is receivable as evidence of its contents by way of an exception to the hearsay rule is, in my opinion, contrary to principle. However none of this touches the present case. In my view it cannot be doubted that the accused is not entitled to tender his own prior self-serving statements. So much was decided by the Court of Appeal in Newsome (1980) 71 Cr App R 325 at 330 and Steel [1981] 1 WLR 690; 73 Cr App R 173.
…………………………………..
The edited record of interview in this case was properly regarded as a purely self-serving statement. As such counsel for the appellant could not have tendered it himself and the appellant cannot be heard to complain either that the Crown did not press the tender of the document or that the learned trial judge rejected it.
[45] (1987) 33 ACrimR 1.
[46] At 3-5.

A similar stance was taken in R v Middleton[47]. There defence counsel sought to introduce evidence of an interview of the accused, by way of cross-examination of police officers who first attended the scene, who asked him “what happened”, to which he replied that his wife lost her temper first and came at him with a knife. The trial judge ruled the evidence was hearsay and refused to permit defence counsel to elicit the conversation. It was held on appeal (Ipp and Heenan JJ, Pidgeon J dissenting) that in all the circumstances what was said to the police on this occasion was relevant as being capable of reflecting adversely on the accused’s capacity at the time of the later formal interview some six hours later, to give an accurate and reliable account of the circumstances leading up to the death of his wife. All the same, the court at various stages cited the decision in Callaghan with approval[48]. In particular Ipp J regarded a recognised exception to the rule against hearsay occurred in the case of “mixed” statements by the accused[49]:
“Thus, the rationale for admitting the exculpatory parts of one whole statement is that, having been uttered on the same occasion that the crime is admitted, their reliability is greater than otherwise would have been the case. Where exculpatory utterances are made as part of a separate statement, this consideration does not apply”.
[47] (1998) 19 WAR 179; (1998) 100 ACrimR 244.
[48] Per Pidgeon J at 242, 250, per Ipp J at 254, 255, per Heenan J at 267.
[49] At 254 at 255.
Ipp J concluded[50] that the first interview was “relevant [to] … the state of mind of the appellant when he participated in the interview.
[50] At 288.
For his part Heenan J was of the opinion that “the evidence should have been admitted on cross-examination[51]. It is not immediately apparent why he took this view, however[52] his Honour did say “because of its close association with the event in time, place and circumstances the appellants admission was of considerable weight … one would have expected the Crown to lead evidence of it.”
[51] At 268.
[52] At 266.
An example of the consequential practice preventing defence counsel from receiving self-serving statements is to be seen in another Western Australian decision of R v S[53]. Parker J (with whom Anderson and Steytler JJ agreed) came to the same conclusion[54]:
[26] Some parts of the total interview could be taken to be against the appellant's interest, so that the whole interview could be regarded as a mixed statement in the sense frequently used in this context. The prevailing overall flavour of the interview was, however, distinctly self-serving. The law is well settled, however, that by virtue of those parts of the interview which may be accepted as against the appellant's interest, or 'confessional in character', the statement, that is, the whole record of the interview might have been led in evidence by the prosecution: Middleton (1998) 19 WAR 179 at 182 and 189; 100 A Crim R 244 at 247 and 255–256. But if the prosecution determines against introducing the record of interview it could not have been led in evidence or be the subject of questions in cross-examination by the defence: Callaghan [1994] 2 Qd R 300 at 303–304; (1993) 70 A Crim R 350 at 352–354. This position has been well settled for approaching two centuries: Higgins (1829) 3 C & P 603 at 604; 172 ER 565 at 565.
[27] The submission of the appellant is that the present case should be regarded as different by virtue of the evidence led, in virtually so many words, by the prosecution that the appellant had denied the allegations. This appears to me to be without substance as a point of distinction. Strictly it may be the position that evidence of the denials ought not to have been led, but it was clearly in the appellant's interest for the jury to know that the appellant had denied the allegations and no objection was made to this. This does not constitute in any real sense an attempt by the prosecution to lead evidence of parts of an out of court statement which suited the prosecution, without adducing the whole of the statement including those parts which favoured the appellant. This was in truth the opposite of that situation. No doubt out of a sense of fairness to the appellant the prosecution led evidence that when interviewed the accused had denied the allegations. The trial judge was not prepared to allow that to provide a springboard for a roaming cross-examination as to what was said during the interview, or to a viewing of those aspects of the video record of interview which favoured the appellant and were, on many view, self-serving of his interests. I am not persuaded that this ruling of his Honour was in error as a matter of law or involved any unfairness to the appellant. If there has been any defect in this respect it was one which favoured the appellant by allowing the fact of his denial of the allegations against him to be led as part of the prosecution case.
[53] (2002) 132 ACrimR 326
[54] At [26]-[27].
Similar questions arose rather more directly, but somewhat inconclusively, in R v Flowers[55]. The situation confronting the court there was that on the day following the events giving rise to the charges, police spoke with the applicant when he was intoxicated, during which the following exchange occurred:
Q — What is your name?
A — What for?
Q — Are you NF?
A — Yes I am.
Q — NF, we are investigating a sexual assault upon a young girl, a 12 year old girl, and we want to talk to you about that matter.
[55] (2005) 153 ACrimR 110.
A — I don’t even know that little girl.
Later on that same day, after sobering up, police conducted a formal interview with him, during which he admitted knowing the complainant, but denied committing any offence, giving an entirely exculpatory version. The prosecution did not lead the subsequent formal interview, consequently the trial Judge indicated defence counsel could not proceed to cross-examine on it. It was submitted on appeal that it was unfair to prevent counsel from doing so.
Martin CJ (BR) observed of this course of events at [10]:
“This is not a case in which a sober suspect, having made an initial false denial, had time for sober reflection or to obtain legal advice before offering to the police an exculpatory explanation. When the accused first responded to police questions, he was so intoxicated that the investigating officer considered it was unfair to continue to question him. When the exculpatory interview occurred a few hours later, in substance it was the first occasion on which the applicant was confronted with the allegations at a time when he was in a sober state and able to respond properly’
and his Honour proceeded, in dissent on this point, to express the view[56] that the conduct of the Crown in leading the initial statement made the evidence of the later interview admissible. For his part Reilly J applied the decisions of the Queensland cases of R v Callaghan (above) and R v S (above), and the Western Australian decision of R v Middleton (above)[57].
[56] At [18].
[57] At [37].
Southwood J reached a similar conclusion[58] arguing there was no basis for the application of English authorities making an exception permitting an accused to tender prior consistent statements (whether by cross examination of police witnesses or otherwise) for the purpose of showing either the accused’s reaction when challenged about his offending by police or consistency in the account he gave. His Honour noted with reference to R v Tooke[59] that in the UK the position was somewhat different, in that a qualification to the tender of such evidence was that the statements must be spontaneous and relevant and must add weight to the other testimony given in the case.
[58] At [54].
[59] (1990) 90 Cr App R 417. Refer also to R v Pearce (1979) 69 Cr App R 365, 369-370.
The English practice was that self-serving statements even if part of a mixed statement, were not admissible as going to the proof of the contents, but otherwise, is perhaps best encapsulated by the following quotation from R v Pearce[60]:
(2) (a) A statement that is not an admission is admissible to show the attitude of the accused at the time when he made it. This, however, is not to be limited to a statement made on the first encounter with the police. The reference in R v Storey to the reaction of the accused ‘when first taxed’ should not be read as circumscribing the limits of admissibility. The longer the time that has elapsed after the first encounter the less the weight which will be attached to the denial. The judge is able to direct the jury about the value of such statements.
(b) A statement that is not in itself an admission is admissible if it is made in the same context as an admission, whether in the course of an interview, or in the form of a voluntary statement. It would be unfair to admit only the statements against interest while excluding part of the same interview or series of interviews. It is the duty of the prosecution to present the case fairly to the jury; to exclude answers which are favourable to the accused while admitting those unfavourable would be misleading.
(c) The prosecution may wish to draw attention to inconsistent denials. A denial does not become an admission because it is inconsistent with another denial. There must be many cases, however, where convictions have resulted from such inconsistencies between two denials.
(3) Although in practice, most statements are given in evidence even when they are largely self serving, there may be a rare occasion when an accused produces a carefully prepared written statement to the police, with a view to its being made part of the prosecution evidence. The trial judge would plainly exclude such a statement as inadmissible.
[60] (1979) 69 Cr App R 365 at 369-370.
Similar considerations appeared to have influenced the thinking of the Chief Justice in Flowers, in the passage quoted above. To complicate matters Southwood J was of the view[61], like the Chief Justice, that the applicant’s statement ‘that he did not even know that little girl and the statements that he made during his video taped interview by police were part of a connected series of statements which should have been available for consideration by the jury as forming one narrative’.
[61] At [73].
The South Australian and recent Australian authorities
So far as South Australia is concerned there was at one time a line of authority to the effect that self serving statements were either of no evidentiary value or inadmissible. Bright J took the former view in Revesz v. Orchard[62] following Adam J in Day v. Dyson[63], as did Bright J in Hook v Day[64], where it was clear[65] that there were certain statements by Day constituting admissions against him, and others self-serving and hence “probably have no evidentiary value”. In Day v. Dyson Adam J expressly did not exclude the possibility under some circumstances, of admitting evidence “of a statement consistent with innocence at the earliest moment”.
[62] [1969] SASR 336.
[63] [1965] VR 165.
[64] (1971) 2 SASR 440.
[65] At p443.
Moreover in Spence v Demasi[66] Cox J (White and Perry JJ agreeing) referred to both previous single instance decisions emanating from this State, analysed what he referred to as “a body of authority …. that took a more liberal view of the matter”, and declined[67] to follow Revesz v Orchard. However he did refer in passing to the principle that entirely self serving statements were not provable at the instance of the defence[68]:
The rule against hearsay evidence usually operates to prevent a party from tendering his self-serving statements made out of court in proof of the truth of the matters so asserted.
and again[69]:
Despite the fact that the defendant could not himself ordinarily tender a self-serving statement in proof of the matters so stated, such a statement, when tendered by the Crown because of the admissions that accompany it, will be evidence for all purposes, whatever the weight of its individual parts might be. That, I believe, reflects the current practice in the courts of this State.
There are expressions of arguably similar views, so far as they go, by King CJ in Thomson v The State of South Australia[70] and Gray J in R v Morgan[71]. It can be seen that neither Karpany nor Spence v Demasi dealt directly with the issue in hand in this particular matter.
[66] (1988) 48 SASR 536 at 543
[67] At 546.
[68] At 540.
[69] At 541.
[70] BC9503196 SASC 08/06/1995
[71] [2005] SASC 391.
The former passage from the judgement of Cox J was quoted with approval by the Court of Criminal Appeal in R v M (1994) 62 SASR 364, 369-370 in the context of an interview consisting of mostly “simple denials”, and by Winneke P, Hayne JA and Southwell AJA in R v Su, Katsuno, Asami and Honda[72]. Their Honours noted[73] that “such material is traditionally led by the Crown, whether incriminating or not, both as a matter of fairness and to show the "first opportunity" response by the accused to the allegations made against him by his accuser”. They further observed[74]:
However if the Crown at the request and with the consent of the accused withdraws some of the statements from the material which would otherwise be put before the jury, and the trial proceeds on that basis, then it seems to us that entirely different considerations will apply if the accused desires, thereafter, to introduce the excluded material into evidence as part of his own case. If such statements are "self serving hearsay" material and inadmissible otherwise than as part of a "Crown package" then no doubt other accused, whose interests are affected, will object to the evidence being included in this way. It would be surprising if the judge had no discretion to exclude such evidence simply because it would have had a limited evidential status if it had been led by the Crown.
………………………….
In our view it would have to be an exceptional case before a trial judge could exclude relevant and probative and admissible evidence bearing upon the guilt or innocence of an accused person who wanted to lead such evidence…
[72] [1997] 1 VR at 65.
[73] At p64.
[74] At 65-66.
Finally, it remains to consider the recent decision of the New South Wales Court of Criminal Appeal in R v Rymer[75]. In that case a police officer told the accused she was investigating allegations of sexual assault, to which he responded “I didn’t do it”. Later that day in a recorded interview, during which detailed allegations were put to him, he responded by denying any wrongdoing.
[75] [2005] NSWCCA 310; BC200506636
The Crown Prosecutor informed the trial Judge “the Crown does not propose to lead those exculpatory conversations”. The Judge regarded the exculpatory statements as hearsay, no exception making them admissible, and therefore counsel for the accused was not permitted to cross examine the police officer to elicit the content of the conversations in which the accused made his denials.
Gove J, with the concurrence of Barr and Latham JJ, commenced his analysis of the issue by noting “a long standing practice in this State”[76] of the prosecution leading such material, even if entirely self-serving, “because it has the dual purposes of assertion of the fact of innocence and the credibility of that assertion implicit in the denial of guilt conveyed by the plea”. When making this observation His Honour had in mind[77] R v Familic[78], where Badgery-Parker J (Hunt CJ at CL and Smart J agreeing) said with reference to police interviews ‘(W)here it is clearly a denial of guilt, it is admissible and ordinarily should be given in evidence’ and also R v Pearce[79]. Gove J cited the following passages the opinion of Kirby P in R v Astill[80].
[76] At [31-32].
[77] At [34].
[78] NSWCCA unreported 4 November 1999.
[79] (1979) 69 Cr App R 365.
[80] (1992) 63 ACrimR 148, 156.
“There is a further basis upon which such evidence may be received. It is where the assertion is so apparently spontaneous as to lend weight to the conclusion that it was not concocted or self-serving. This feature may then permit the reception of the evidence even over objection. The theoretical basis for doing so is, as Dixon J explained in Adelaide Chemical & Fertilizer Co Ltd v Carlyle (1940) 64 CLR 514 at 532f: “ … reliance on the greater trustworthiness of statements made at once and without reflection …’’. The fundamental basis for the disinclination of judges to exclude such evidence was explained by Lord Wilberforce in Ratten [1972] AC 378 at 389f:
The possibility of concoction, or fabrication, where it exists, is on the other hand an entirely valid reason for exclusion, and is probably the real test which judges in fact apply. In their Lordships’ opinion this should be recognised and applied directly as the relevant test: the test should be not the uncertain one whether the making of the statement was in some sense part of the event or transaction … As regards statements made after the event it must be for the judge, by preliminary ruling, to satisfy himself that the statement was so clearly made in circumstances of spontaneity or involvement in the event that the possibility of concoction can be disregarded …””.
and (at 391):
These authorities show that there is ample support for the principle that hearsay evidence may be admitted if the statement providing it is made in such conditions (always being those of approximate but not exact contemporaneity) of involvement or pressure as to exclude the possibility of concoction or distortion to the advantage of the maker or the disadvantage of the accused.
Gove J also quoted[81] the comments of Ostler J said to be part of the “rules of practice” in R v Coats[82]:
“Exculpatory statements made to the police when making enquiries about a crime or suspected crime, if properly obtained, are always admissible both for and against the person who made them if he is subsequently charged with a crime”.
[81] At [46-47].
[82] (1932) 51 NZLR 401.
His Honour then turned his attention to the contrary authorities, including Middleton and Callaghan (referred to above), but concluded[83] “there has been an acceptance of the admissibility of the response of an accused to allegation at common law in New South Wales.” After proceeding to hold the exculpatory material was admissible under s60 of the Uniform Evidence Act in any event because of “the dual relevance of denial of facts alleged and credibility of the accused”[84], his Honour made the following further comments of interest:
[56] Since the abolition of the entitlement of an accused at trial to make an unsworn statement to the jury, it was acknowledged (and confirmed by observation of cases which pass through this Court) that it is a not an infrequent occurrence for an accused person, after tender by the Crown of the content of exculpatory material usually in the form now of a video taped interview, to invite the jury through counsel to consider that material as response to the Crown case and a basis for a verdict of not guilty.
[57] It would be, to say the least, unsatisfactory for that course to be open to some accused but not to others as a matter of mere happenstance. I am not implying that prosecutors do not behave responsibly but if the tender of such material is done as a matter of unfettered discretion it would be expected that some prosecutors would tender it and others would not.
[58] A danger which would need to be guarded against would be that contemplated in Pearce that an accused may bring forward a contrived “hearsay case”.
[59] Nevertheless, it is submitted on behalf of the appellant that the Crown should have called the exculpatory evidence as “a rule of fair play essential to the proper administration of justice”. It would certainly lead to unfairness if evidence of this type were tendered or not as a result of arbitrary selection on the part of a prosecutor. I consider that, absent some particular reason for refraining from doing so, such evidence should be put before the Court by the prosecution.
[83] At [51].
[84] At [53].

In the result, it appears therefore that in Queensland and Western Australia certainly, purely self-serving statements standing alone are excluded and the defence is equally precluded from cross-examining them into evidence. That is also probably but less certainly, the situation in the Northern Territory. The current position in New South Wales, the ACT and Tasmania is to admit such statements as evidence of the truth pursuant to the Uniform Evidence Acts, and that also appears to be the position in New South Wales, Victoria and South Australia at common law, and if not, at least as a matter of practice.
Recent High Court Decisions
Although the problem was not directly confronted by the High Court in Mule, (above) the court in a unanimous joint judgment at para [15] points out[85]:
[85] Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ
Where evidence is given of out of court statements made by an accused, there may be no clear distinction between a matter that is inculpatory and a matter that is exculpatory, and that a dividing line between the two, and particularly between admissions strictly so-called, and self-serving assertions may sometimes be difficult or impossible to draw.
Furthermore, their Honours continued at para [23]:
As has been noted, many cases involving evidence of out of court "mixed" statements by an accused person are more complex than the present. In R v Cox [1986] 2 Qd R 55 at 65, Thomas J rightly cautioned against inappropriate generalisations concerning the difference between inculpatory and exculpatory parts of a statement: a difference that in some cases (not including the present) might be difficult to discern. He said, in a passage quoted by McLure J in her reasons:
With respect, it seems to me to be undesirable that juries be given general a priori directions as to what sorts of evidence are likely to be true, or as to the weight which should be accorded to different parts of the one statement. The matter of weight is for them, and the weight of each part of the statement should be determined in the light of the whole of the evidence. There is, of course, no reason why the trial judge should not point out that such statements have not been made on oath and (where appropriate) that they have not been tested by cross-examination. He may explain the traditional reasons why admissions against interest are commonly regarded as reliable evidence, and make any appropriate comments about particular parts of the evidence. The weight which may fairly be accorded to a self-serving statement varies so much from case to case that it is unwise to lay down any general disparaging directions concerning such statements, although of course, critical comments may be made in appropriate cases. [emphasis supplied by the court].
Apart from the words emphasised in that passage, it is a sound guide to jury direction. In view of the long-standing controversies about why admissions are received, and in view of the fact that an admission need not have been against interest at the time it was made, it is undesirable to direct juries along the lines suggested by the words emphasised.
Whatever else flows from the decision of Mule, five Judges have stated in clear terms that separating “mixed” statements, is an exercise fraught with difficulty, counselled against generalisations concerning the weight to be afforded to self-serving statements, accepted that it is the province of the jury to weigh such evidence, and been critical of comparisons between them and incriminating admissions, on that account.
It is also difficult to reconcile the position of the prosecution in the case presently before the Court, with the decision of the High Court in Stevens v The Queen[86], particularly since the court held that a telephone call to an ambulance officer in which the accused said he “was going to call it an accident for the moment”, amounted to some evidence supporting a defence of accident[87]. Of course, Stevens was not strictly a case of pure exculpatory statements, but the one piece of “admission” evidence limited to the accident issue, certainly was.
[86] (2005) 222 ALR 540.
[87] See McHugh J at paras[24], [29] & [30], with which Kirby J agreed at [70 -79], and also the reasons of Callinan J at [160].
Likewise it is equally difficult to accommodate to prosecution in the light of another decision of the High Court in Griffiths v The Queen (above). In Griffiths, Brennan, Dawson and Gaudron JJ were of the opinion that the possibility of death being due to an accident, was raised by evidence of separate statements by Griffiths to one witness that he knew where the body was and “I …. killed him” and to another “I shot [or killed] John, it was an accident, I didn’t mean to do it”. The Court of Criminal Appeal held the “mere assertion” in the latter statement “does not go far enough to require the defence [of accident] to be put to the jury”. All five Judges in the High Court disagreed, the majority stating that very evidence “clearly raised the issue of accident”[88]. Although in one sense the case involved proof by the Crown of both inculpatory and exculpatory statements, the two were separate in time, place and circumstance, so it is impossible to see how the circumstances of Griffiths related to a “mixed” statement situation.
[88] CLR 169.
Do the authorities establish a binding self-serving preclusion?
The commencement point for a judge sitting in this jurisdiction must be R v Karpany. There the trial judge directed the jury they “must either take the confession or leave it”. On appeal the Court (Napier, Richards and Clearland JJ) held “the whole is evidence for the prisoner, as well as against him”[89]. This was a case of “mixed” admissions. The subsequent South Australian cases, are interestingly enough, all civil. This probably reflects a practice in South Australia, similar to that in New South Wales and it seems Victoria, by which the prosecution in criminal cases did not take the point of admissibility relating to self-serving statements of an accused, even when wholly exculpatory statements were concerned. The statements in question in Revesz v Orchid and in Hook v Day, were also mixed.
[89] At 379.
Spence v Demasi concerned a motor vehicle accident and is binding authority in civil and criminal proceedings for the proposition that where “mixed” statements are concerned, the self-serving portions are admissible and of evidential significance, even if they go beyond an explanation of any admissions, as an exception to the hearsay rule. The particular conversations in question were the respondent (plaintiff) telling the police he did not know how the accident occurred, that he did not know whether he was the driver and that he was pretty sure the appellant was driving. Accordingly the Full Court held it was “open to the respondent at the trial to rely upon them in support of his case that he had no recollection at all of the collision and little of events leading up to it”[90]. During the course of delivering the reasons of the Court Cox J added this significant comment[91]:
I have dealt with the authorities at such length in order to show – as I respectfully think is the case – that the view taken in this Court in Revesz v Orchard and Hook v Day has not generally prevailed. However the principle is to be stated, there is a longstanding practice of conceding evidential value to the self-serving parts of a mixed out of court statement and leaving it to the court to decide what weight they should have. Certainly the practice has not been uniform but the preponderance of authority, as it seems to me, supports the view taken by Gibbs J in the cases to which I have referred. The practice appears to be well settled in the criminal courts, and that is hardly surprising. It would be a strange thing to exclude the self-serving parts of a mixed statement by an accused person, because it was unsworn and untested, and then to allow him to make the same statement from the dock – and that was the procedure here until recently and still is the procedure in many places.
[90] At p546.
[91] At p545-546.
The passages quoted earlier in these reasons from the judgment of Cox J in Spence v Demasi are plainly obiter, as persuasive as they might otherwise be. And they must also be read in context. His Honour’s statements[92] that the rule against hearsay “usually operates to prevent a party from tendering his self-serving statements” and “despite the fact that the defendant could not himself ordinarily tender a self-serving statement in proof of the matter so stated”[93], were not made so much in reaffirmation of those principles in their own right; rather they occur in the context of the court working an exception to that very principle, merely as a necessary prelude to the exception the Court was about to acknowledge.
[92] At p540.
[93] At p541.
The authorities from Queensland, Western Australia and the Northern Territory, clearly take their force from R v Callaghan (above). Callighan does not appear to be a case involving purely exculpatory admissions, because the statement by the accused that he was in the back seat and did not know the car was stolen, contain at once an admission of being involved and was one also capable of being used as evidence going to his credit, and perhaps even probative of a consciousness of guilt, particularly once he give evidence upon his trial to the effect that he was hitchhiking home and was offered a lift by a driver of the vehicle, whom he did not know.
Conclusion on the Australian Authorities
There is no binding Australian authority directly in point, although there are obiter statements of a highly persuasive nature supportive of the prosecution. That being the situation the precedents referred to are “useful only to the degree of the persuasiveness of their reasoning”[94]. Those statements however must be seen in their proper context, a context which does not preclude and perhaps rather encourages the admission of self-serving material relating to an accused, especially in criminal cases. The authorities to the contrary have been substantially overtaken by recent decisions, most significantly the High Court decision in Mule v The Queen. In the passages quoted above, the High Court has poignantly cautioned against “inappropriate generalisation concerning inculpatory and exculpatory statements” and “a priori”, assumptions as to what sorts of evidence are “likely to be true or as to the weight which should be accorded” to such evidence, and expressly warned against – as “a sound guide to any direction” – “the traditional reasons why admissions against interest are commonly regarded as reliable”.
[94] Cook v Cook (1986) 162 CLR 376, 390.
It is a logical corollary to these propositions spelled out by the High Court in Mule, that a rule of evidence automatically excluding purely exculpatory statements, is at once an inappropriate generalisation, contains an inherent assumption that such statements are untrue, withdraws from the jury as the trier of fact all opportunity to determine what weight can be accorded to them, and reinstates the traditional reason why self-serving statements of an accused are commonly regarded as unreliable.
Once it is accepted the self-serving statements of a party are now-a-days regularly admitted into evidence, and once it is accepted that the traditional reasons for excluding them no longer applies, then it must follow that no enduring or consistent principle survives to dictate exclusion, so that there is no satisfying reason why cross-examining counsel ought to be prevented from bringing them into evidence.
A close analysis of the contrary body of authority demonstrates them to be inconclusive on their facts as to whether they engaged exclusively exculpatory statements. Although in principle it might have been the case historically that entirely exculpatory statements will not have come within any hearsay exception, there is no escaping the conclusion that such an approach would inevitably lead to time wasting and unproductive disputes on the voir dire, and to inconclusive decisions as to whether or not such statements are “mixed” or otherwise.
Perhaps even more telling, admission or rejection would stand or fall on the mere fickle chance (or “happenstance” as Gove J rather aptly suggested in Rymer) that an admission was also contemporaneously made, no matter how slight or inconsequential it might be. Given that judges are likely in appropriate circumstances to direct juries in the way sanctioned by Mule v The Queen, which guards against the misuse of self-serving statements, the arguments advanced for rejection in Callaghan seem no longer to be of any outstanding utility. Callaghan and the cases which follow it, also depend in part on the proposition that self-serving statements are not permitted in the case of all witnesses – overlooking the material difference between witnesses in the cause, and witnesses as parties to the litigation. The danger of manufacture can be satisfactorily overcome by exclusion of such material when it occurs[95], and by an appropriate direction when leaving it to the jury to determine reliability.
[95] Rymer at [60].
As the law universally draws no distinction between incriminating and exculpatory statements so far as the voluntariness principle is concerned: Commissioner of Customs and Excise v Harz[96], Piche v The Queen[97], Wong Sun et al v United States[98], Taylor v New Zealand Poultry Board[99], there seems no reason why it should logically draw that distinction for another purpose. Furthermore in most circumstances, exculpatory statements are often proved by the prosecutor in order to show they were fabricated and therefore as proof of a guilty conscience, or to impeach the credit of the accused upon taking the witness stand. Just why purely self-serving statements should stand apart, is not readily apparent.
[96] [1967] 1 AC 760.
[97] (1970) 11 DLR (3d) 700.
[98] (1963) 83 SCt 407.
[99] [1984] 1 NZLR 394.
Still further, a rule excluding wholly exculpatory statements, appears to be run contrary to long standing practice, at least in some jurisdictions - of which this State is one – is at odds with the notion of “fair play” spoken of by Griffiths CJ in Jack v Smail, and has the tendency to encourage prosecutors to pick and chose the evidence they will call, contrary to the duties of prosecutors to present all the evidence available to them[100].
[100] Apostilides v The Queen (1984) 154 CLR 563, 575-576, Velevski v The Queen (2002) 76 ALJR 402, [47], [117], [176].
In conclusion then, it is incongruous and outdated to accept a doctrine admitting the statement of an accused made in the one spontaneous breath “I shot the sheriff, but I did not shoot the deputy”[101] as an admission in his trial for murder of the sheriff, and yet exclude it in his trial for murder of the deputy. Such a principle is self evidently arbitrary, haphazard in its application, would at times work capriciously and in others bring about obvious injustice to an accused and rests upon the out-worn fallacy that they are always unreliable.
[101] From the song of Bob Marley, used in a paper presented by Grace Q.C Admission of Inculpatory, exculpatory Statements”.
Res Gestae
Evidence may be received under the res gestae principle, also as an exception to the hearsay rule (and for that matter against the self-corroboration principle) on account of its contemporaneity with the transaction in issue, provided it generally forms an integral part of the transaction and is substantially contemporaneous with it[102]. The application of the principle in like circumstances to the present case came before the High Court in Vocisano v Vocisano[103]. In that case, a motor vehicle accident, two witnesses gave evidence under cross-examination that they had come to the scene of an accident five minutes afterwards and were told by the defendant that the plaintiff had been driving the vehicle. The question in issue was who had driven the car. The trial judge admitted this evidence on the ground that those statements formed part of the res gestae. As Barwick CJ emphasised in that case[104]:
The question of whether statements form part of a res gestae is fraught with difficulty at any time.
A reason for the doctrine that statements made as part of the res are admissible as evidence is that, because of their contemporaneity and the circumstances of their making, they were unlikely to be concocted and therefore might well be reliable: but that does not mean that statements made on an occasion when they are unlikely to be concocted are for that reason admissible.
[102] Adelaide Chemical and Fertilizer Co v Carlyle (1940) 64 CLR 514, 531.
[103] (1973-1974) 130 CLR 267
[104] (at 272-273):
The Chief Justice (Stephen and Jacobs JJ agreeing) reasoned however that there was no sufficient contemporaneity between the statements made to the witnesses and the accident to warrant the conclusion that they were part of the res and although made approximate, “they were in the nature of a historical account rather than in the nature of a statement made as part and parcel of the occurrence”[105].
[105] 130 CLR at 273.
Use and Weight of the Admitted Material
In the main, the things alleged to have been said by the accused in this case, appear to have occurred in the few minutes immediately following the collision, except in the case of one of them which would appear to have been spoken within an hour or so, to the ambulance officer Mr Lacey.
So far as the application of the res gestae principle is concerned, the statements made whilst the accused was still in the car before being rescued clearly come within the principle, as do those uttered shortly thereafter. The statements to the ambulance officer, stand differently, such that the decision of the High Court in Vocisanov Vocisano, is binding in that respect.
Insofar as the evidence is to be received on the alternative “self-serving basis”, what Mr Fry said to Mr Archer on being pulled from his burning vehicle, has the surface appearance of being spontaneous. Likewise those made within a minute or two later, when he was a safe distance from the vehicle, do not appear, when taken alone, to have come in enough time for “sober reflection”, yet on the other hand statements also made at around this time were mixed up with them, and these are capable of being taken as demonstrable lies. The alleged statement to the unknown man in the suit, is perhaps of doubtful provenance and for that reason, is of dubious value.
Finally, the evidence he told Mr Lacey on the way to the hospital that he was in the rear seat behind the driver and there were four people in the vehicle, is capable of being seen by that time, as a fabrication, if the jury sees it that way. The expert evidence is such that it is unlikely, although not impossible, for him to have been behind the driver, but on no account of that evidence could there have been four occupants.
As to the evidence of Mr Lacey, as with the other evidence just summarised, it will be ultimately for the jury to assess. All of them are relevant and admissible as well, to illustrate the accused’s frame of mind immediately following the accident, to show perhaps that he was attempting to lead suspicion away from himself and for the additional purpose of throwing light, or as qualifying his position, or affecting the accuracy and reliability of his interview with the police on 29 November 2002, in which he asserted that he could not remember anything beforehand until he came to, and that he could not remember anybody else being in the car.
Directions to be given on admission
Having admitted the evidence, or more accurately allowed the defence to prove the statements, it does not follow that the various statements are to be left to the jury as unqualified evidence of the truth of their contents. Depending on the course of events, and depending also on whether the accused elects to give evidence, directions based around Mule will be required to alert the jury to the weight they may place on it, in some instances perhaps, if any.

In Mule (above) the Court considered the following trial directions (at [11]):
“It is important that I tell you that his silence in this case is not evidence against him and does not amount to an admission by him and it cannot be used to fill in any gaps in the evidence tendered by the prosecution if you feel there are some. It may not be used as a makeweight in assessing whether the prosecution has proved its case beyond reasonable doubt. The exercise of a right to silence cannot be held against a person and if you think about it it would be bizarre if the law gave a person a right and then permitted the exercise of the right to be held against the person”.
However, you also know that the accused did not totally exercise his right to remain silent when he was interviewed by the police. He could have, if he had wished, not said a word during that process and he did say some things. He had a lawyer there and on occasions he said, 'No comment,' but on other occasions either personally or through his lawyer he said things to police and you have the video of the interview. He chose to, in a sense, speak to the police on the occasions that he did and that interview has been put before you as evidence by the prosecution as part of the prosecution case.
…
Now, the video cassette of the interview, given that it has been tendered by the prosecution for the purpose I have just explained, it also, however, becomes material evidence, for the accused as well as against him; in other words, once it goes in, it can be used for all purposes, legitimate purposes.
Those parts of the interview that are relied on by the prosecution you can accept as being not disputed by the accused and they are, as I have said, admissions, concessions, if you like, made by the accused person, in the sense that I have just explained, against his interests.
But the video also contains other matters that the accused person relies on in his case and he relies on his denials of police allegations and also his assertions, for example, his assertion that he intended only personal use. He relies on those statements in the video. Of course, his denials of police allegations and his assertions, such as his assertion of intending personal use, are disputed by the prosecution.
The denial — his denials and the assertions that he makes, are not supported by evidence from him on oath in the witness box and therefore those matters do not have the same weight as evidence, as his admissions or confession, if you like, of possession, for example, against interest, doesn't have the same evidential weight, but the accused's denials and his assertions are still matters for you to consider. They are before you and you give them what weight you see fit (emphasis added by the court).
These directions were approved in somewhat qualified terms at [22] (footnotes omitted):
[22] It was not a derogation from the appellant's right to silence for the trial judge to point out that the statements made in the course of the interview were not on oath. The expression "right to silence" is used to refer to a number of distinct legal rules. It is a useful shorthand expression but it is a general description which does not always provide a safe basis for reasoning to a conclusion. In the present case what is important is that the appellant did not give evidence at his trial. In the days when, in most Australian jurisdictions, accused persons were entitled to make unsworn statements in court, it was not regarded as a derogation from their rights for judges to direct juries that what an accused said in these circumstances was to be regarded as "a possible version of the facts" and that jurors should "consider it with the sworn evidence, giving it such weight as it appears to be entitled to in comparison with the facts clearly established by evidence". Nor was it regarded as such a derogation for a judge to comment that a statement was not on oath, and was not tested in cross-examination, and might not be considered as weighty as the evidence of witnesses under oath. The trial judge had already, uncontroversially, referred to the fact that the appellant had elected not to give evidence in court. It is difficult to explain the right to silence without drawing attention to the silence. Furthermore, as the judge pointed out, the appellant's silence was not complete. Having referred to the fact that the appellant did not testify on oath in court, having explained that it was his right to remain silent in court, and having warned the jury against inappropriate reasoning, the judge, when he came to deal with the out of court statements made by or on behalf of the appellant, could well have thought it proper to tell the jurors that it was open to them to evaluate those statements in that light. They could also evaluate those statements in the light of the fact that they were self-serving. As a matter of law, it was correct to tell the members of the jury that they were not obliged to attach the same weight to all the statements made in the interview, and that it was for them to decide the weight to be given to particular statements. As an observation on the facts, in the circumstances of this case, it was not inappropriate to point out that, while the admissions of possession were accepted by both sides at the trial to be true, the assertions about purpose were in dispute, that they were not supported by any sworn testimony and that they were self-serving. It would also not have been inappropriate to point out that the jury might think them to be of less weight than the admissions.
It must follow that at the conclusion of the trial, close attention will have to be focussed on these statements by the High Court in order to fashion an appropriate direction, correctly guiding the jury as to the weight they might place, or otherwise, on the various statements made by the accused immediately following the subject collision.
Order
In the result the only ruling necessary, given that the prosecution refused to call the evidence referred to – despite numerous expressions in the cases concerning fair play - is to indicate that the defence is entitled to elicit that evidence by cross-examination of the witnesses concerned, and/or for it to prove the statements in the course of the defence case, if the accused so elects.