R v Kuhn

[1996] QCA 473

IN THE COURT OF APPEAL	[1996] QCA 473
SUPREME COURT OF QUEENSLAND

C.A. No. 353 of 1996

Brisbane

[R v. Kuhn]

THE QUEEN

v.

RODNEY GRAYSON KUHN

Appellant

Fitzgerald P
Pincus JA

Derrington J

Judgment delivered 26 November 1996

Separate reasons for judgment of each member of the Court, each concurring as to the order made.

APPEAL AGAINST CONVICTION DISMISSED

CATCHWORDS:Criminal law - appeal against conviction - indecent dealing with a boy under the age of fourteen - Carnal knowledge against the order of nature - Appellant did not give evidence - Whether trial judge misdirected the jury.

Weissensteiner v. The Queen (1993) 178 CLR 217

Counsel:	Mr S. Hamlyn-Harris for the Appellant
Mr M. Byrne QC for the Respondent
Solicitors:	Legal Aid Office (Qld) for the Appellant
Queensland Director of Public Prosecutions for the Respondent

Hearing Date: 31 October 1996

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 26 November 1996

I agree that the appeal should be dismissed for the reasons for judgment of Derrington J. It was permissible for the trial judge to inform the jury that it was legitimate in assessing the credibility and reliability of prosecution evidence to take into account that it was uncontradicted: R. v. Fellowes [1987] 2 Qd.R. 606, 611; R. v. Martinez-Tobon [1994] 1 W.L.R. 388, 394H, 397C; cf. Turnbull (1976) 63 Cr.App.R. 132, 137; Harrison (1987) 29 A.Crim.R. 213, 227.

It is unnecessary to say more to dispose of this appeal. However, it merits emphasis that an accused person’s right to silence is a fundamental principal of the criminal law. It is not dependent on logical explanation or justification,[1] and is not to be incrementally eroded by adding exceptions to its operation based on extensions of the reasoning which has permitted an inference to be drawn from silence in exceptional circumstances.[2] The continuing strength and resilience of an accused’s right to silence, and the concomitant duty of a trial judge not to infringe that right by directions which detract from an accused’s credibility by reference to his or her exercise of the right, is demonstrated by Glennon v. R. (1994) 179 C.L.R. 1.

[1]           Environmental Protection Authority v. Caltex Refinery Co. Pty Ltd (1993) 178 C.L.R.

[2]           Weissensteiner v. R. (1993) 178 C.L.R. 217.

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 26 November 1996

I have read the reasons of Derrington J. and I agree with his Honour’s conclusion that the trial judge’s directions, as to the effect of the appellant’s failure to give evidence, were, taken as a whole, unobjectionable. As to the principle of Weissensteiner (1993) 178 C.L.R. 217, I do not propose to repeat the discussion about it in Demeter [1995] 2 Qd.R. 626, or what I said on the subject in Wood et al (unreported, 11 June 1996), at pp. 14 to 16 of my reasons. But I should say that the proposition that Weissensteiner does not support the drawing of any inference, in any circumstances, from the accused’s silence is in my view a dubious one; I am unconvinced that there is, in a practical sense, a difference between drawing an inference from silence (eg. an inference that the accused probably has no credible exculpatory version of events to put forward) and merely treating silence as "a factor on one side of the balance in determining an issue of fact", to use the expression adopted by Derrington J. The soundness of distinctions of this kind was discussed usefully, although in what he himself described as a "mildly vituperative style", by Professor Rupert Cross (1973) Crim.L.R. at 333. The author, agreeing with Lord Salmon, questioned the reality of the difference between telling a jury that an inference of guilt might be drawn from silence, and merely telling them that failure to advance an explanation at an earlier stage might be taken into account in assessing the weight to be attributed to the explanation.

If a jury is told that silence or lack of contradiction of a Crown case may be taken into account in determining guilt, will not the jury think that it may be taken into account in support of the Crown case and against the accused? The difference between doing that and using silence to draw or strengthen an inference of guilt is subtle. As was said in Petty (1991) 173 C.L.R. 95 at 125:

"As a matter of ordinary experience, the failure to advance an innocent explanation when an opportunity arises may . . . support an inference that no such explanation is available."

As to the decision in S v. The Queen (1989) 168 C.L.R. 266, I am in respectful agreement with Derrington J. that the principle of that decision does not assist the appellant here.

I agree that the appeal should be dismissed.

REASONS FOR JUDGMENT - DERRINGTON J

Judgment delivered 26 November 1996

The appellant was convicted of two counts of indecent dealing with a boy under the age of fourteen and one count of carnal knowledge of him against the order of nature. The offences were alleged to have occurred in 1973 when the complainant was six years old and in grade one at school. No particulars of the charges were sought, and none were provided.

The prosecution led evidence from the complainant himself and from a Mrs Belford who said that in or about August 1974 he complained to her about these matters. The complainant gave evidence of the detailed acts and the locations of their occurrence, but it was a fairly simply description. There was some possible conflict between his evidence as to the year of the offences and that of Mrs Belford as to the year of the complaint, but because of his tender age at that time and the long period of time intervening that may have affected his memory and/or that of Mrs Belford as to dates, it is unsurprising that this conflict did not deter the jury.

The appellant did not give evidence, and it is to the trial judge's directions to the jury on this feature that the major point of the appeal is directed. On more than one occasion, he made it clear to the jury that the onus of proof lay on the prosecution throughout the trial and that no adverse inference could be drawn against the accused by reason of his failure to give evidence. But on occasions when he was discussing the complainant's evidence he also directed that it was open to them to accept that evidence more readily because it was not contradicted by the evidence of the accused.

Learned counsel for the appellant argued that the latter direction had the effect of qualifying the direction against drawing an adverse inference from the accused's silence, and that in this the learned trial judge was wrongly extending the principle stated in Weissensteiner v. The Queen (1993) 178 CLR 217 that in the absence of any evidence from an accused who is capable of an explanation that would support an innocent inference the jury could more comfortable adopt an inference consistent with guilt.

The first of these arguments fails to accept the distinction between the principle on the one hand that no adverse inference should be drawn against an accused person who fails to give evidence, and, on the other, an adverse result that may simply follow where the prosecution evidence enjoys the absence of contradiction. The former involves the drawing of an inference. The latter is merely a recognition of the absence of a factor on one side of the balance in determining an issue of fact. No inference is involved in that.

This reasoning is parallel to that in Weissensteiner, which authenticates its validity. But it is unprofitable to discuss whether the "Weissensteiner principle" may be transported to cases such as the present where there is direct evidence of the offence.

By directing the jury as he did, the learned trial judge did not qualify nor detract from his directions warning against adverse inferences in these circumstances, which of course must remain clear and undiminished. His impugned directions were clearly confined to the other issue. Consequently this ground must fail.

Other grounds faintly pursued suggested that remarks by the learned trial judge during the course of the trial and in the summing up were prejudicial in that they could have led the jury to believe that he thought that the accused was guilty of the offences. Even assuming that this could constitute a cause for complaint, the remarks referred to were quite innocuous and had no prejudicial effect that would warrant further discussion.

The final ground of the appeal was that because particulars of the specific times of the offences and other details were not provided, the appellant was prejudiced in his defence. It was also argued that this lack of detail justified his absence from the witness-box because, it was argued without supporting evidence, it could have led him to feel that the resulting vagueness of his evidence would show him in an adverse light to the jury. This necessary silence, it was said, adds to the force of the appellant's complaint concerning the trial judge's direction in the first ground.

It is undoubtedly true that in some circumstances the absence of particulars may be oppressive of the accused and prejudicial to the chance of a fair trial, and the court will intervene accordingly: S v. The Queen (1989) 1 68 CLR 266. However, in the present case no request for particulars was made and the detail provided in the context of the relevant circumstances sufficiently removed any burden of any oppression or prejudice. Consequently there is no occasion for the application of that principle, and this ground too must fail.

As no ground advanced by the appellant was successful, the appeal should be dismissed.

477.