R v Peel

[1998] QCA 371

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 298 of 1998

Brisbane

Before	McMurdo P. Pincus J.A. Williams J.
[R v. Peel]

THE QUEEN

v.

STEVEN THOMAS PEEL

Appellant

REASONS FOR JUDGMENT - McMURDO P.

Judgment delivered 17 November 1998

1. I have read the reasons for judgment of Williams J., who has carefully set out the

relevant facts.

1. At the close of the Crown case, the learned trial judge after legal argument ruled that

there was just sufficient evidence for the case to go to the jury and acceded to the prosecutor’s

request to give the jury a direction in accordance with Weissensteiner v. The Queen.[1] His

Honour then addressed the appellant as follows:

“I am required to ask you whether you intend to adduce evidence in your defence. You can give evidence or call evidence, do one or both of - or either of those things, or you can neither give evidence or call evidence. It’s entirely a matter for you. If you choose not to give or all evidence, no adverse inference can be drawn against you by reason of that fact.”

The appellant’s counsel answered on his behalf, indicating that he would neither be giving

nor calling evidence.

[1] (1993) 178 C.L.R. 217.

1. The learned judge’s statement to the appellant was at the very least misleading. His

Honour’s agreement to give the Weissensteiner direction meant that he intended to invite the

jury to take into account the fact that the appellant had not given evidence as a consideration

making the inference of guilt from the evidence called by the prosecution less unsafe than it

otherwise would appear.[2] In Weissensteiner, Mason C.J., Deane J. and Dawson J. referred

[2]             May v. O’Sullivan (1955) 92 C.L.R. 654 at 659.

to the distinction,

“... no doubt a fine one between drawing an inference of guilt merely from silence and drawing an inference otherwise available more safely simply because the accused has not supported any hypothesis which is consistent with innocence from facts which the jury perceives to be within his or her knowledge ... but when an accused elects to remain silent at trial, the silence cannot amount to an implied admission. The accused is entitled to take that course and it is not evidence of either guilt or innocence. That is why silence on the part of the accused at his or her trial cannot fill in any gaps in the prosecution case; it cannot be used as a make-weight. It is only when the failure of the accused to give evidence is a circumstance which may bear upon the probative value of the evidence which has been given and which the jury is required to consider, that they may take it into account, and they may take it into account only for the purpose of evaluating that evidence. The fact that the accused’s failure to give evidence may have this consequence is something which, no doubt an accused should consider in determining whether to exercise the right to silence. That was recognised in Reg. v. Kops but it is not to deny the right; it is merely to recognise that the jury cannot, and cannot be required to, shut their eyes to the consequences of exercising the right.”[3] (emphasis added)

[3]             at 229.

4 Brennan J. (as he then was) and Toohey J. noted:
“The use to which the appellant’s failure to give evidence may be put is
correctly restricted to the strengthening of an inference of guilt from the facts
proved. And the jury is told not to use the appellant’s failure to give evidence
unless relevant facts ‘can be easily perceived to be in his knowledge’. This
additional requirement, which follows a decision of the Court of Criminal
Appeal of Queensland in Reg. v. Whinfield [unreported 16 September 1986
p 25], ensures that the drawing of an inference of guilt will not be assisted by
an accused’s failure to give evidence unless it is reasonable to expect some
denial, explanation or answer by the accused to the prima facie case made
against him.”[4] (emphasis added)

[4]             at 237-238.

A Weissensteiner direction, therefore, necessarily involved inviting the jury, if they so

wished, to consider the appellant’s failure to give evidence in drawing an inference of guilt

from the proven fact that the appellant’s fingerprints were on the bottle.

1. The learned trial judge’s directions to the jury have been fully set out in the reasons

for judgment of Williams J. His Honour invited the jury to take into account the failure of

the appellant to give evidence to assist them in evaluating how the fingerprints came to be

on the bottle. He then invited the jury to assess the presence of the fingerprints on the bottle

on the footing that the appellant had not offered evidence of any hypothesis or explanation

which was consistent with innocence. He added:

“... it is only ... when the failure of the [appellant] to give evidence is a circumstance which may bear upon the probative value of the presence of these fingerprints on this bottle that you may take into account that failure, but only for the purposes of evaluating that evidence. ... you may draw inferences adverse to the [appellant] more readily by considering that he, being in a position to deny or explain or answer how his fingerprints came to be on this bottle, has failed to do so. ... you may take the [appellant’s] failure to give evidence into account in determining whether you should draw that inference of guilt. ... it is legitimate to have regard to the fact in this case that he has given no evidence or explanation, or satisfactory explanation of the Crown case as a consideration for making the inference of guilt, drawing the inference that he was the person who threw this bottle at this car. ... thus the use to which the [appellant’s] failure to give evidence may be put is restricted to the strengthening of the inference of guilt from the facts proved here, the presence of the fingerprints on this bottle.” (emphasis added)

1. The learned trial judge agreed to give a Weissensteiner direction. He then invited the

appellant to indicate whether or not he intended to give and/or call evidence, telling him that

no adverse inference can be drawn against him. The appellant chose not to give or call

evidence. The learned judge then directed the jury that they could, if they wished, draw an

inference against him, admittedly in a limited but nevertheless important way, because he had

not given evidence. The appellant has been put in an unfair situation and a miscarriage of

justice has occurred. This is so even though the appellant was represented by counsel and

had obviously discussed with counsel whether or not he should give evidence.

1. I agree with Williams J. that it is the duty of the trial judge to clearly inform an

accused of his rights under s. 618 of the Criminal Code. It is generally preferable, as

Williams J. points out, for a trial judge to follow as closely as possible the wording of s. 618

of the Code.

1. Although the Crown case was undoubtedly weak, I am not persuaded that a

Weissensteiner direction was improper in this case, but it is unnecessary to reach a concluded

view on this point as I have found the trial has miscarried in another important respect.

1. The next question is whether there should be a retrial. The Crown case was both

weak and circumstantial. The appellant has been in custody since his conviction on 20

August 1998. In those circumstances, there should be no retrial. I agree with the orders

proposed by Williams J.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 298 of

1998Brisbane Before McMurdo P.

Pincus J.A. Williams J. [R v. Peel]

THE QUEEN

v.

STEVEN THOMAS PEEL Appellant

REASONS FOR JUDGMENT - PINCUS J.A. Judgment delivered 17 November

1998

I have read the reasons of Williams J. There was nothing to connect the

appellant with the offence other than fingerprint evidence. The jury was entitled to be

satisfied that his fingerprints and his fingerprints only were on a bottle containing
petrol, the throwing of which (complete with burning wick) had to be appropriately

connected with the appellant, for the prosecution to succeed. One possibility was that

the fingerprints were on the bottle because it was the appellant who threw it; another
was that quite innocently and perhaps on some much earlier occasion, the appellant
happened to handle the bottle. The learned primary judge told the jury, in summary,
that an inference might be drawn against the appellant because of the presence of the
fingerprints, he said inference might more readily be drawn because the appellant
"being in a position to deny or explain or answer how his fingerprints came to be on
this bottle, has failed to do so". The prosecution proved that some 11 months after

the incident complained of the police attempted to interview the appellant about the

matter, but he declined. When the case came to trial nearly two years later, the
appellant eschewed the witness box. Speculation as to his reason for taking the latter

course was laid to rest in the course of a discussion the trial judge had with the

appellant when sentencing him, in which it was explained that the reason the
appellant did not give evidence was "because I can’t remember that far back".

2 Mrs Richards, for the appellant, argued that no Weissensteiner direction was appropriate. Mrs Richards pointed out that it was unlikely that an innocent person would remember whether or not he had touched a particular bottle a long time ago,

hardly a memorable event.

3 The case raises the question whether it is right that a Weissensteiner direction cannot be given in such a case. If an accused’s fingerprints and no other fingerprints were found on a bottle with which a person had been killed, could a Weissensteiner direction be given against an accused who declined to say anything about the matter,

or would the Court be precluded from doing so if the bottle were of a common type
and a considerable time had elapsed before the accused was questioned?

4 The scope of the Weissensteiner direction has been discussed in a considerable number

of judgments in this Court. Some of the cases were dealt with in a judgment of mine

in Powell v. Smith and Blacker (C.A. Nos. 251 and 264 of 1995, 14 November 1995). One of the decisions noted was Wei Cai (C.A. Nos. 444 and 457 of 1994, 3 March 1995), of which I said:

"There the question was whether the Crown had proved that one or both of

the appellants had killed a murder victim, and if one only, which one?"

There was evidence that the appellants were both at the place where the murder was

committed, but there was room for doubt as to whether both of the accused took part in

the

murder. The problem was particularly acute with respect to one of the appellants, Wei

Cai.

In Wei Cai, Thomas J. (as his Honour then was) referred to circumstances suggestive of

Wei Cai’s involvement in the matter and went on:

"In the absence of any answer to these circumstances the jury was entitled to
conclude that both men were engaged upon a joint enterprise in relation to their
dealings with the deceased. . . . In reviewing whether a jury’s verdict is safe and
satisfactory and in particular in considering whether a properly instructed jury
could reasonably have arrived at that verdict, an appeal court may bear in mind:

‘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 passage quoted by the judge, from Burdett (1820) 4 B & Ald 95 at 161-2, 106 E.R.

873

at 898, is set out in the principal judgment in Weissensteiner, that of Mason C.J., Deane
and
Dawson JJ. (1993) 178 C.L.R. 217 at 225. I draw attention to the reference to
"explanation

or contradiction, if the conclusion to which the prima facie case tends to be untrue". The

implication is that it is the conclusion itself which may be the subject of explanation or

contradiction. Here, whether or not the appellant had any recollection whether he had

consumed Diet Coca Cola, either at the relevant time or ever, one would have expected

him

to have recalled whether he had ever attempted to fire bomb a car.

5 In F (C.A. No. 418 of 1996, 6 December 1996), Thomas J. (as his Honour then

was) quoted the same passage from Burdett as I have set out and also two passages

from

Weissensteiner; it is enough to set out the more succinct one:

". . . 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)

White J. expressed her agreement with Thomas J.’s observations.

6 A more recent case in which a Weissensteiner direction was considered was King

(C.A. No. 66 of 1998, 26 May 1998, Davies and McPherson JJ.A., Derrington J.).

There the

reasons of the Court included the following:

"Acting on the decision in Weissensteiner v. The Queen (1993) 178 C.L.R. 217 [the trial judge] accepted that the case was one in which only the appellant was in a position to give evidence of facts which, to quote from the judgment in that case (178 C.L.R. 217, 228), were ‘peculiarly within [his] knowledge’".

After referring to transactions on a TAB account, the reasons went on:

"Without affirmative evidence to the contrary from [the appellant], the jury were entitled to infer that those deposits and withdrawals were simply one aspect of an extensive scheme of buying, selling and paying for drugs to which the appellant himself was a party".

7 In the present case, it was in my opinion proper for the judge to tell the jury that they might use the absence of any contradiction of the conclusion to which the objective circumstances pointed as a fact entitling them to be more ready to draw an adverse

inference than they would have been, had the appellant contradicted that conclusion. But Mrs Richards argued that, reading the summing-up as a whole, it was rather unbalanced; she seemed to suggest that the judge’s direction might have inclined the

jury to treat the absence of any contradiction from the appellant as proof of guilt. It is not necessary, in my opinion, to determine whether that criticism is justified. I am of opinion that the appeal should be allowed because the learned primary judge gave

emphasis to the proposition that the jury might more readily infer guilt because the appellant gave no evidence or explanation, when his Honour had assured the appellant, when inquiring whether he intended to adduce evidence that:

"If you choose not to give or call evidence, no adverse inference can

be drawn against you by reason of that fact".

8 Where a Weissensteiner direction is in prospect, such an assurance cannot be given.

It is true that there is a difference between being more ready to draw an inference by reason

of a circumstance on the one hand, and simply drawing it by reason of a

circumstance. But

that is too fine a distinction to justify the assurance his Honour gave.

9 I would allow the appeal, set aside the conviction and make no order for a new trial.