R v Weetra - [2010] SASCFC 52

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v WEETRA
[2010] SASCFC 52
Judgment of The Court of Criminal Appeal
(The Honourable Justice Anderson, The Honourable Justice White and The Honourable Justice Peek)
15 November 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION - NON-DIRECTION
The appellant was convicted of serious criminal trespass and aggravated threatening to cause harm - the appellant did not give evidence at trial - records of his interviews by the police were read to the jury - the appellant submitted that a miscarriage of justice had occurred, because the trial Judge did not give any directions to the jury concerning the use they could make of the out of court statements.
Held: appeal allowed - the trial Judge erred in failing to direct the jury as to the use which could be made of the out of court statements made by the appellant to the police - matter remitted to the District Court for re-trial.
Additional observations by Peek J regarding the identification evidence and the right to silence.
Spence v Demasi (1988) SASR 536; Mule v The Queen (2005) 221 ALR 85; R v Golding and Edwards (2008) 100 SASR 216; Azzopardi v The Queen (2001) 205 CLR 50; R v Hajistassi (2010) 107 SASR 67; R v Kincaid (1984) 33 SASR 552; R v Porter (2003) 85 SASR 581; Songenfrie v The Queen (1980-1981) 51 FLR 147; RPS v The Queen (2000) 199 CLR 620, considered.

R v WEETRA
[2010] SASCFC 52
Court of Criminal Appeal: Anderson, White and Peek JJ

ANDERSON J. I have read the reasons in draft of White and Peek JJ. I agree with their conclusions and that in the circumstances a miscarriage of justice has occurred.
I agree with the proposed orders to allow the appeal, set aside the convictions and order a re-trial. I generally agree with the analysis undertaken by White J.
WHITE J. The question on this appeal is whether a miscarriage of justice occurred by reason of the trial Judge’s omission to direct the jury as to the use which it could make of the statements made by the appellant in two interviews with the police.
The circumstances giving rise to the appeal are set out in the reasons of Peek J, and it is not necessary to repeat them.
The appellant was interviewed by the police following his arrest on 23 September 2008. The interview was video taped. However, the contents of what was said in the interview were agreed between prosecution and defence counsel and, at the request of the parties, the content of the interview, in question and answer format, was read by the Judge’s Associate to the jury as an agreed fact. The recitation of the interview occupied some 12 page of transcript.
The appellant was interviewed a second time on 2 June 2009. This interview too was video taped but its contents were also conveyed to the jury as an agreed fact in the same way as had the first. The recitation occupied some 10 pages of transcript.
The trial was short, being completed within two days. The prosecutor did not refer at all in his closing submissions to the appellant’s police interviews, but counsel for the appellant did, reminding the jury of what the appellant had said to the police on particular topics.
The trial Judge only made one reference to the appellant’s police interviews in his summing-up. That was in the context of his summary of the prosecution submission concerning the evidence of the conversation at the Berkely Hotel. The Judge reminded the jury that the appellant had given to the police a different version of that conversation.
The law relating to the use of evidence of out-of-court statements is reasonably well settled. In Spence v Demasi,[1] Cox J (with whom White and Perry JJ agreed) described the position as follows:
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. The problem comes with mixed statements, tendered by an opponent, containing admissions against the party making them and also exculpatory statements, whether relating to the admissions or on other relevant topics. The position in the criminal court, I think, is clear. It is common for the Crown to tender a record of the accused’s interrogation by the police, and often this will contain a mixture of admissions and self‑serving statements. The Crown cannot pick and choose. It cannot put in only the damaging questions and answers, or have the admissions treated as evidence and the rest rejected or ignored as hearsay. The whole interrogation (or narrative statement, as the case may be) goes before the jury and it is for them to decide what parts, if any, they will act upon in reaching their verdict. They may give different weight to different parts … The failure of the accused to give evidence may well influence their attitude to the self‑serving answers.[2]
Cox J also emphasised that the use which may be made in a criminal trial of a mixed statement by a defendant is not confined to passages which qualify or explain, more or less directly, the admissions upon which the Crown relies.[3]
[1] (1988) 48 SASR 536.
[2] Ibid at 540-1. See also M v The Queen (1994) 62 SASR 364 at 369-70 and R v Golding and Edwards [2008] SASC 68; (2008) 100 SASR 216.
[3] Ibid at 541.
In Mule v The Queen,[4] the High Court referred with approval to the judgment of Cox J in Spence v Demasi.
[4] [2005] HCA 49; (2005) 79 ALJR 1573.
Thus, when tendered by the Crown, an out-of-court statement of an accused becomes evidence for all purposes.
The matters agitated on the present appeal went not to the use which can be made of an accused’s out-of-court statements proved by the prosecution, but to whether a judge should direct a jury as to the proper uses of such statements, and whether an omission to do so gave rise to a miscarriage of justice.
There are a number of reasons why trial judges do usually direct juries regarding the uses which they may make of an out-of-court statement. In part it is a consequence of a trial judge’s responsibility to relate the directions of law to the facts of the particular case.[5] In part, it is an aspect of the directions concerning the onus and standard of proof (the jury may need to be instructed that they must exclude any innocent explanation contained in the out-of-court statement as a reasonable possibility). In part, it is because the jury may need to be instructed that they can rely parts of the out-of-court statement, and reject other parts. Juries may not always know that they can act on the exculpatory parts of the out‑of‑court statement as well as the inculpatory parts. As the High Court observed in Mule v The Queen,[6] some jurors may be puzzled about the consequences of the prosecution, in effect, putting the defence case before them.[7] Finally, the giving of directions is consistent with the practice previously adopted in relation to unsworn statements from the dock. In the days when such statements were permitted, judges generally instructed juries that they were to consider the unsworn statement together with the sworn evidence, giving it such weight as they considered appropriate.[8]
[5] Ibid.
[6] Ibid.
[7] Ibid at [21], 1578.
[8] Ibid at [22], 1579.
That is not to say that a direction will be required in all cases. There may be cases in which the accused gives evidence at trial and the potential significance of an out-of-court statement is subsumed by the oral evidence which the jury has heard. There may be other cases in which the out-of-court statement comprises only bare denials of the police allegations. But at least in those cases in which an accused does not give evidence, and the only explanation from the defence which the jury has before it comes from the out-of-court statement, some direction will usually be required.
Judges commonly direct jurors that they should have regard to an accused’s out-of-court statement; that they may use the exculpatory and inculpatory parts of the statement; that it is matter for them to assess the weight which would be attached to the statement; and that the out-of-court statement does not have the status of sworn evidence which has been tested by cross-examination.
My mind has wavered as to whether the omission of the Judge in this case to give the jury a direction as to the permissible uses of the out-of-court statement has caused a miscarriage of justice. On the one hand, it must have been obvious to the jury that they could have regard to the police interviews. Why else had there been an agreement about the statements, and their contents recited to them? It must have also been obvious to the jury that they could have regard to the expulatory portions of the statements, many of which have been identified in the reasons of Peek J. Defence counsel had referred the jury to some of those expulatory statements and the trial Judge had referred to one passage. In the context of the trial, it could be said that it must have been plain to the jury that they could have regard to them.
On the other hand, the High Court in Mule v The Queen thought that it was proper that some direction be given, so as to remove any potential puzzlement or uncertainty amongst the jury. The potential for such puzzlement or uncertainty is not to be underestimated. Even among the legal profession, there is some lingering uncertainty as to the status as evidence of out-of-court statements.[9] Further, given that the contents of the two interviews were recited to the jury as part of the prosecution case, it is possible that the jury may have thought that it was the inculpatory portions which constituted the relevant evidence.
[9] See R v Hajistassi [2010] SASC 111; (2010) 107 SASR 67.
In the end, I am persuaded that there has been a miscarriage of justice. This was a case in which the accused did not give evidence. The only explanation which the jury had from the accused in the relation to the events charged against him was to be found in the out-of-court statements. That made their contents important, particularly as otherwise the Crown case may well have appeared to the jury to be strong. In that circumstance, it was appropriate for the jury to be told that the out-of-court statements were evidence for them to consider; that they could have regard to both the inculpatory as well as the expulatory portions; and it was for them to consider the weight to be attached to the statements. It was for the Judge to decide whether to go further and to make the observation that the out-of-court statements differed from the evidence given in court in that they had not been made on oath and had not been tested by cross‑examination.
Counsel for the Director accepted, appropriately in my opinion, that if this Court was satisfied that a miscarriage of justice had occurred, it was inappropriate to apply the proviso.
Accordingly, I would allow the appeal, set aside each of the convictions and remit the matter to the District Court for re-trial.
PEEK J. This is an appeal against convictions of one count of aggravated serious criminal trespass and two counts of aggravated threatening to cause harm arising out of a home invasion.
The home invasion on 19 April 2008 and the events surrounding it
In the early hours of the morning of Saturday, 19 April 2008, Ms Kahlia Dixon and Mr Peter Miller-Koncz (hereafter referred to without disrespect as Dixon and Miller-Koncz) were present at the Portland Hotel at Port Adelaide when they witnessed a fight involving a Mr Nolan Miller and a Mr Travis Wanganeen.
Later, at about 11.00 pm on that same day they were at home at premises at Pennington with their two young children and Dixon's relative Ms Leah Miller (hereafter referred to without disrespect as Miller), when two men perpetrated a home invasion, out of which incident the present three charges arose.
The main issue at trial was as to whether the appellant was one of the two offenders. The appellant denied that he was and none of the witnesses had ever previously seen either of the two offenders.
The evidence was that one of the two men brandished a rifle and the other wore a “knife glove” (a glove with blades protruding from the knuckle area). They were aggressive and appeared to be looking for persons who had allegedly been involved in the previous incident at the Portland Hotel. The male with the rifle pointed it at both Dixon and Miller-Koncz, yelled threats and ran upstairs looking for other persons. The male with the knife glove, who the prosecution alleges was the appellant, was also yelling and stayed downstairs with Dixon, Miller-Koncz and their children.
Dixon, Miller-Koncz and Miller each gave evidence that the man wearing the knife glove referred to Travis Wanganeen, the person who had been in the fight at the Portland Hotel, as his brother.
It was generally a fraught situation with Dixon being in a state of shock, crying, shaking and hysterical; her child also crying; Miller crying and Miller-Koncz shaking.
On cross-examination, Dixon stated that when she saw the rifle she went into shock. “I just sat there, I couldn’t breathe properly, I was in shock.” She agreed that the incident was over very quickly and may have been as brief as two minutes in total and that she may have had the man with the knife glove in view for “maybe a bit longer than a minute.”
Dixon, who was the daughter of a Mr Leo Harradine, agreed in cross-examination that there had been an ongoing dispute between some of the Harradine and Wanganeen families from Point Pearce over the last few years, and “lots of different episodes of different assaults and paybacks and things like that”. She also agreed the Wanganeens and the Weetras are related in some parts of those family groups.
It was plain from the evidence, including the cross-examination of the witnesses to the home invasion, that there was much discussion about that incident by them and in the Aboriginal community in general in the weeks following it.
Dixon agreed that within a few weeks after the home invasion her mother told her that the person Trevor Weetra might have done it on the basis that that information was going around the aboriginal community. Her mother also told her that she knew Trevor Weetra to be an older brother of Travis Wanganeen. Dixon stated that she knew that Travis Wanganeen had a twin brother called Tristran but was not aware as to whether he had any other brothers.
Miller also agreed that a few days after the home invasion someone told her that the person Trevor Weetra might have done it and that there was a lot of aboriginal people saying that. She agreed that she had conversations with lots of different people soon after this happened trying to find out who had broken into the house.
Miller stated that Miller-Koncz was her first cousin and Dixon was an in-law. She stated that she knew Travis Wanganeen, his twin brother Tristan and their cousin Stamford and agreed that Travis and Tristan Wanganeen had a large number of Wanganeen cousins.
Miller-Koncz agreed that he also was aware that there had been a number of fights and other incidents between Wanganeen and Harradine families back in 2008.
The photographic identification by Ms Kahlia Dixon on 10 June 2008
The home invasion was reported to police who proceeded to investigate. Although the witnesses stated in evidence that the man with the knife glove referred to a Travis as his brother in their presence, the following passage in the cross-examination of the investigating officer, Constable Zetter, may raise a question as to when this matter was related to the police.
Q:The start of your involvement you attended on the night to Ms Dixon's house?
A:That's correct.
Q:On the basis of the information you received from the people that night were people of interest to you and your investigations potential relations of Travis Wanganeen?
A:At that stage we weren't aware of who was involved just know what happened the previous evening.
Q:Was it the case that within a couple of weeks of this incident you'd received information from Sue Dixon, Kahlia's mum?
A:That's correct.
Q:That information was that she'd heard potentially Trevor Weetra was the person involved?
A:That's right.
Q:Did that information that you received from Sue Dixon form the basis of you then arranging a photo folder for Kahlia to have a look at?
A:That was part of the basis, yes.
In any event, the police placed a photograph of the appellant in a photographic array of 12 photographs which they showed to Dixon on 10 June 2008. She positively identified the photograph as the male with the knife glove.
It is to be noted that it was an agreed fact that the photograph of the appellant in the photographic array shown to Dixon and later to Miller was the same photograph and was taken “in 2002.”[10]
[10] Only the year 2002, without a month, was agreed.
Dixon had described the man with the knife glove as being in his “mid twenties” and Miller had described him as being in his “mid to late twenties” as at 19 April 2008, the date of the home invasion. By reference to the appellant’s statement in the first police interview, it can be seen that he was born on 26 October 1975 and had been aged about 27 at the time of the taking of that photograph in 2002. However, he was in fact aged 32 years and 6 months as at 19 April 2008, the date of the home invasion.
Dixon made a number of concessions in cross-examination which further diminished the reliability of the identification including that she actually knew the man in one of the photographs; that the person she was looking for in the photographs was of darker skin than hers whereas “there is a good few of them that are people that don't have darker skin”; and “there would have been some of those photos that you could immediately not worry about because they were much older people”. She also agreed that at the time she looked at the photographs she believed that the person who had done it was one of Travis's older brothers.
It is also to be noted that Dixon made no mention that the man with the knife glove was wearing glasses whereas both Miller-Koncz and Miller stated that he was wearing reading glasses.
The arrest and interview of the appellant on 23 September 2008
The appellant was arrested and interviewed on 23 September 2008 on the basis of the identification by Dixon on 10 June 2008. During the course of the interview, the appellant emphatically denied at various times that he was one of the men involved in the home invasion. The following passage is typical:
A:Well, I do know a little bit now something was supposed to have happened.
Q:Yep.
A:Now I've been getting accused of it. Me and firstly it was supposed to be me and my uncles and someone was to have run through someone's house because my brother got mobbed.
Q:Yep.
A:Now I don't know how I got accused of this now, they're bringing this other bloke's name into this, so you know, I know I didn't do it.
Q:Okay.
A:Yeah, so they can accuse me of whatever.
Q:Yep.
A:They've been at war with the Wanganeens.
Q:Yep.
A:And I'm not even a Wanganeen, I'm a Weetra.
Q:Yeah.
A:You know, and they're trying to say that I'm, you know, they're trying to blame me for all this.
Q:Yep.
A:So if they want people to point the finger at they've got hundreds of other people to be looking at not me.
The following passage later appears:
A:You know it's just while my back’s turned they're saying this and that.
Q:Okay.
A:I don't even know what's going on.
Q:Okay.
A:Yeah. So the (inaudible) and the Wanganeens and whoever else is fighting that's got nothing to do with me but because they probably feel threatened and I'm, the, I'm Travis's older brother.

The appellant also indicated that he had some information about who the offenders were but he was not willing to tell the police. Thus the following passage appears:
Q:Yep, when, when you say you heard about the people ringing you up about going through houses and stuff, do you know who it was that was going through the houses?
A:I've heard yarns, but I don't really want to say.
Q:No that's fine.
A:You know.
Q:If you don't want to say, you don't have to say.
A:No, I was, my mother was, is told me to give them up.
Q:Yep.
A:But I can't.
Q:All right.
A:I'll, I'll cop the blame if I have to.
The appellant was told that one person had already identified him by photographic identification and was asked whether he was prepared to go in a line-up since there were “more witnesses”. Importantly, he volunteered to participate in such a line up:
Q:Yep, all right, now obviously there's some more witnesses that were at the house, now I want to conduct an identification parade with those people, I've only done it with one, when one person picked you out I stopped.
A:Mm.
Q:To give me the opportunity to ask if you want us to do a line-up.
A:Yeah.
Q:Or go back to the photos so -
A:I'll do a line-up.
Q:You want to go in a line-up.
A:Yeah.
The appellant did express his concerns that he would be wrongly identified in circumstances where his name had been circulating as the offender, that he was well known in the Aboriginal community and that his picture was readily accessible on “Bebo” (social networking site) and on the internet. Despite his concerns, he confirmed that he still wanted to participate in a line-up.
A:Of course, they're going to pick me out cause everybody knows me. …
A:My, my, my photo’s all over Bebo.
Q:Okay.
A:And on the internet.
Q:Yep.
A:So people get on the internet, yeah, that's Trevor Weetra there.
Q:Yep.
A:Of course they know who I am.
Q:All right, so do you still want to participate in the actual line-up?
A:Yeah, yep.
The appellant was asked for his date of birth and gave it as 26 October 1975. This was a not unimportant matter as establishing that he was aged about 32 years, 6 months at the time of the home invasion on 19 April 2008, as distinct from “mid twenties” or “mid to late twenties” as Dixon and Miller respectively described the offender. This passage in his interview appears to be the only mention of his actual age in the trial evidence.
It was an agreed fact that the appellant was only ever spoken to personally by police regarding a line-up in this interview on 23 September 2008 and a line-up was never arranged because his two previous solicitors never formally responded to numerous requests made from Detective Craig Zetter. The result was that the witness Miller attended a photographic identification on 23 July 2009 rather than a line-up.
The conversation on Saturday 20 December 2008 at the Berkley Hotel
Dixon gave evidence that on Saturday 20 December 2008, about eight months after the incident, she was at the Berkley Hotel, coming from downstairs, when she saw that a conversation was occurring between Miller-Koncz and another male who she thought “looked familiar, looked like the person who home-invaded, come through our house”. She stated that she therefore walked away from them. She indicated the appellant in the dock as the male at the Berkley Hotel.
The trial Judge correctly directed the Jury that this apparent recognition of the appellant may have been the result of the displacement effect of the photographic identification procedure that she had previously undertaken.
Miller-Koncz gave evidence that he did have a conversation with the appellant at the Berkley Hotel. Importantly, he agreed that he completely failed to recognise this person as the man who had been wearing the knife glove. He stated:
Q:At the time when the person you now know to be the accused Mr Weetra came and had a conversation did you recognise him at that time?
A:I didn't recognise him.
Q:What did he say to you?
A:He was just apologising.
Q:Do you remember specifically what he said?
A:'Sorry brother, I didn't know it was your house. I didn't know that was Leo and Susan's daughter. If I'd known who it was'. He said he gave Travis money and a hiding.
However, on cross-examination he gave a much less incriminating version and stated that the appellant was just saying:
A: ‘Sorry, I know who it was’ and saying it was a mistake and stuff like that.
…
A: …he just said ‘I know who it was’.
A further passage in the cross-examination of Miller-Koncz appears thus:
Q:When he said, after talking about the house, 'I know who it was', what did you take that to mean.
A:I don't know what he was talking about. I didn't even recognise him.
Q:It's possible as far as you knew he was talking about the bloke that had actually come into your house?
A:Yeah, but I didn't recognise him, so -
Q:When you had this conversation you were what, standing a metre from him?
A:Fairly close.
Q:Close enough that the two of you, you could hear what he was saying on Hindley Street in the middle of the morning?
A:Yes.
Q:So you were certainly able to get a really good look at him that night at the Berkley?
A: Yes.
Q:When you saw him that night at the Berkley you didn't recognise him at all as being -
A:I didn't recognise him so -
Q:At all?
A:No.
It was put to Miller-Koncz that there had been conversation about the Richmond oval incident but he denied that. However, he did confirm that there had been a number of fights and other incidents between the Wanganeen and Harradine families in 2008. He also agreed that a couple of months before the Berkley Hotel incident he had been at the Richmond oval and seen a fight that had happened there, and which had involved some Harradines and Wanganeens that kept having ongoing fights that year.
The second interview of the appellant on 2 January 2009
It was an agreed fact that on 10 December 2008 the accused had entered into a bail agreement in relation to the present matter and that one of the conditions of his bail was not to approach either Miller-Koncz or Dixon.
On 2 January 2009 the appellant was arrested for breaching a condition of his bail by virtue of his contact with Miller-Koncz at the Berkley Hotel on 20 December 2008 and was interviewed by Constable Matthew Legge about that matter.
The appellant stated that he had been innocently in Hindley Street and happened to approach the vicinity of the Berkeley Hotel. The following passage then appears in the record of the interview:
A:And then I bumped into Craig and Darby and that and I was walking along Hindley Street talking to them as I was looking for my nephews and that and then Craig he said to me oh such and such is up here. I didn't know who he was talking about. He goes people and I said whose people and he goes who you're supposed to be charged with and I thought oh shit, I then, he was saying that they started to freak out because, because of what happened at the carnival and ever since the carnival there's been like tit for tat and they have had their cars smashed up and other people have had their fucking cars petrol bombed and window smashed and stuff and shit like that. Now why they have seen me up there and they have brought (thought) that I might retaliate with that and I told Craig ...(inaudible)... to let them know that you know none of that shit got nothing to do with me now and I'm got going to do anything. I'm not here for a different reason, I just don't want them knowing, thinking that I'm, you know, against them, you know, at war with them and I'm not, I'm fucking trying to, trying to do it peacefully here.…As we was walking down Hindley Street and Craig was there talking to them and that's when they, Craig, walked up with them and that young bloke Peter and they are talking to me and I said look, I don't know what's going on, you know, all this shit (inaudible)… because of what happened to his house and all the petrol bombing and shit like that. I said look, I don't know what's going on, you know and I don't have nothing to do with it, you know and that was it. …
…
A:Yeah just to assure them that because there's a lot of shit going on out there, you can ask the Aboriginal Elders between the Wanganeens -
Q:Yes.
A:- and the Harradines you know.
Q:Yep.
A:And I'm a Weetra like all my family are Wanganeens I got brought up with them and they ...(inaudible)... brought up with ...(inaudible)... you know.
Q:Yep.
A:I'm not going to be against them.
Q:Yep.
A:I'll get locked up mate ... (inaudible)... they're my family too.
Q:Yep.
A:I had nothing to do with it you know I just want to try and live my own life and live you know, you know like.
The photographic identification by Ms Leah Miller on 23 July 2009
The second photographic identification, being that by Miller, did not occur until 23 July 2009.
As stated above, it was an agreed fact that the photograph of the appellant used in the photographic array shown to Miller was the same photograph that had been shown to Dixon, that of the appellant taken in 2002.
As to this second photographic identification procedure, it is to be further noted that the appellant had been arrested on this present matter on 23 September 2008. The Court is familiar with the normal practice that he would have been then photographed; certainly there was no evidence that he was not then photographed. It is puzzling why a photograph taken at the time of his arrest on 23 September 2008 (being relatively close in time to the date of the offence on 19 April 2008) was not used in the photographic array shown to Miller on 23 July 2009 rather than the old 2002 photograph. However, the point does not appear to have been pursued in evidence and there the matter must presently rest.
The Grounds of Appeal
The only ground of appeal was as follows:
The learned trial Judge erred at law in that he failed to give proper or adequate directions regarding the out of court statements made by the applicant to the police.
In order to pass upon this ground of appeal it is necessary to consider the relevant law and the terms of his Honour's summing up in some depth.
The legal status of exculpatory statements in a record of an interview
Although the status of exculpatory statements in a record of an interview tendered by the prosecution in a criminal trial has varied at different times and in different jurisdictions, the position in South Australia has been clear for some time. The historical exposition by Cox J in Spence v Demasi[11] is the authority most often referred to and remains correct. Cox J there stated:
The position in the criminal court, I think, is clear. It is common for the Crown to tender a record of the accused's interrogation by the police, and often this will contain a mixture of admissions and self-serving statements. The Crown cannot pick and choose. It cannot put in only the damaging questions and answers, or have the admissions treated as evidence and the rest rejected or ignored as hearsay. …
One thing should be made quite plain. The use that may be made in a criminal trial of a mixed statement by a defendant is not confined to passages that qualify or explain, more or less directly, the admissions upon which the Crown relies — for example, by a defendant's admitting that he struck the victim but going on to claim that he acted in self-defence. This narrow approach was taken in some of the English cases prior to Duncan and was preferred in principle, despite that decision, by J Huxley Buzzard, R May, M N Howard, Phipson on Evidence (13th ed, 1982). The jury (they considered) could take the exculpatory passages into account in determining whether or not the defendant's statement really was an admission, but they could not rely upon them for any wider purpose, such as providing independent evidence of the defendant's innocence: cf S Mitchell, P J Richardson, J Huxley Buzzard, Archbold Pleading, Evidence and Practice in Criminal Cases (42nd ed, 1985), par 15-57. This was not the view taken in Duncan or in the Australian cases to which I have referred. 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.
[11] (1988) 48 SASR 536 at 540-541. See also Mule v The Queen (2005) 221 ALR 85 and R v Golding and Edwards (2008) SASR 216.
The trial Judge’s summing up
The appellant is clearly correct in his major submission that his Honour failed to direct the jury that exculpatory material in the records of the appellant’s interviews could be used as evidence in his favour.
Further, I consider that the appellant is also correct in his submission that certain directions that his Honour did give were likely to convey the positive impression that statements by the appellant to the police could not be used as evidence in his favour.
Early in his Honour's summing up, his Honour gave the following directions:
You are, as you know, performing a very important task because it lies at the heart of our criminal justice system that a person charged with a serious offence is entitled to be judged by a jury of his peers. There will be amongst you a wide variety of ages, life experiences, backgrounds, but it is that very diversity and your collective common sense that you will bring to bear in considering your verdicts, but, having said that, of course, your verdicts must be based on the evidence. (emphasis added)
The effect of this direction was that the jury’s verdicts must be based on the evidence and only on the evidence.
Clearly, it was therefore critical for the jury to know exactly what was “the evidence” in the case so that they could evaluate it and base their verdicts upon it. However, the only context in which his Honour discussed the term “evidence” was in the context of evidence given by witnesses in court. Thus his Honour directed:
In deciding upon the facts, you have to evaluate the evidence. It involves, amongst other things, considering how much weight you can place on the evidence given by particular witnesses. In assessing the weight or reliance you can place on the evidence of a witness you have regard to a number of matters. (emphasis added)
Such directions had the tendency to convey or bolster the view that “evidence” meant evidence given by witnesses in court.
His Honour directed only very briefly as to the decision of the appellant not to give evidence in court. His Honour simply stated:
In this matter the accused has not given evidence himself and you should understand that that is his right. You should not draw any inference adverse to him from the fact that he has made that decision because he carries no onus of proving anything.[12]
[12] In some cases, and the present may be one of them, this direction may be too brief, omitting as it does a substantial portion of what Gaudron, Gummow, Kirby and Hayne JJ referred to in Azzopardi v The Queen (2001) 205 CLR 50 at 70 [51] in the following passage: “It follows that if an accused does not give evidence at trial it will almost always be desirable for the judge to warn the jury that the accused's silence in court is not evidence against the accused, does not constitute an admission by the accused, may not be used to fill gaps in the evidence tendered by the prosecution, and may not be used as a make-weight in assessing whether the prosecution has proved its case beyond reasonable doubt. It by no means follows, however, that the judge should go on to comment on the way in which the jury might use the fact that the accused did not give evidence.”
This matter was not made the subject of a ground of appeal or argument in the present case and will
not be commented upon further. It may, however, need to be addressed on a re-trial.
His Honour here no doubt intended to refer to evidence given in court but he does not say so and it is difficult to understand why a jury should somehow take this direction to mean that “the accused did not give evidence in court but you can use what he said to the police as evidence in his favour”. It would be much more likely that they would hear this as a direction confirmatory of the view that the only evidence to take into account is that given in court.
Later, his Honour directed in general terms about witnesses and their statements out of court:
Now some other brief observations are appropriate. In this case you heard reference in the evidence to the statement of a witness to the police. That statement is not before you and you should understand that, generally speaking, the statements of persons made outside of the courtroom are simply not admissible in the courtroom. It is what a person says in court that matters and it is what a person says in court a jury must act upon. Sometimes you hear evidence about external statements, if you like, simply because a witness is being challenged as to their reliability or credibility, and you can take account of the evidence for those purposes. I mention it simply because it came to our attention but do not be concerned that you do not have that statement.
You will also be aware there were other persons who were potential witnesses in this matter who were not called to give evidence. You should not speculate as to why that might be or as to what they might have said if they had been before you. You simply must act on what you have, the evidence that is before you.
No doubt his Honour was here intending to speak of witnesses other than the accused and, on one level, the jury may have heard it in that sense. However, at another level, the jury may well have reasoned that these general statements made in the context of other witnesses could also apply to the accused. After all, he was a “potential witness” to adopt the term used by his Honour and it is quite likely that the jury would have reasoned that if statements made by other witnesses to the police were not evidence (as his Honour had directed them) so the statement made by the appellant to the police was also not “evidence”.
Counsel for the appellant also relied upon the following passage:
I should also say that during the course of cross-examination of witnesses you heard a number of things put to witnesses about their relationships, about family feuds and so on. The fact that a question is put to a witness is not evidence of the truth of what is put. For that you must look to other evidence in the case to see whether the matter that is put is in fact proved in some other way, otherwise you disregard it unless the witness in cross -examination accepts the truth of what is put.
As I understood him, counsel for the appellant submitted that his Honour's direction, standing alone, was not inaccurate but that its tendency in the particular circumstances here was to convey that if there is an identifiable group of statements made by the appellant to the police and that same group of statements is put to prosecution witnesses in cross-examination who reject them, then that group of statements is to be disregarded. In other words, the only way that the jury could use them is addressed in his Honour's second sentence “For that you must look to other evidence in the case …” which in turn emphasises the primary problem of the absence of directions as to what that “other evidence” might here include. I think that this submission is also correct.
The obligation to direct on the status of exculpatory statements

The question as to the extent to which a trial Judge is obliged to direct the jury on the status of exculpatory statements in a record of an interview tendered by the prosecution in a criminal trial is a not altogether simple matter. The extent to which the Judge positively misdirects the jury on the one hand or omits to direct on the other hand may lead to differences of approach on appeal. However, in essence the fate of the appeal will largely depend on the following two matters.
The presumed knowledge of the modern jury
The first matter upon which the fate of the appeal may depend is the extent to which such a direction is thought to be necessary in the light of the presumed knowledge of a modern jury.
Counsel for the DPP argued that a modern jury would know that they may treat exculpatory statements as evidence in favour of an accused person and accordingly such a direction is unnecessary. With great respect, I cannot accept that submission.
As an analogy, one may refer to the decision in R v Kincaid[13] where Cox J observed that correct directions as to the onus of proof are vital in a self defence case simply because one can not say what the views of the jury, unassisted by correct directions, would be. Thus his Honour stated:[14]
The question on appeal is whether there is a reasonable possibility that the jury was misled by the learned Judge's remarks and put the burden of establishing his defence upon the appellant. I bear in mind that the main direction on burden of proof was correct, and so was the reminder that the Judge gave the jury just before they retired. It is possible, indeed I think it probable, that the jury got it right in the end. However, one cannot be sure about that. Self-defence is a complex subject. A jury would probably not be surprised to be told that it was for an accused person to establish it, rather than for the Crown to disprove it. It was therefore necessary that the jury be given a very clear and unequivocal direction. I do not think it could be said that there is not a real possibility that the jury acted on an erroneous principle in this case. (emphasis added)
[13] (1984) 33 SASR 552.
[14] R v Kincaid (1984) 33 SASR 552 at 554.
The present is an a fortiori case. The law is very familiar with the danger that a jury may draw an inference against an accused of a consciousness of guilt by reason of the fact that he does not give evidence in court.[15] It would hardly be surprising if a juror in the present case thought that an accused person who chooses not to exercise his right of giving evidence in court should be restricted to reliance on the evidence that is actually given in court.
[15] Hence the need to give Azzopardi style directions as referred to above to guard against that danger.
Indeed, as recently as 1994, a learned South Australian District Court Judge was under that very same misapprehension and gave the following directions to a jury as to the use of the contents of a record of interview:[16]
The way it got before you is that if a person makes an admission or a statement that is contrary to their interest, then the Crown can lead that evidence. Commonly a confession is the every day example that you see. Well, the Crown did lead this evidence to you, and the reason it led the evidence was, as Mr White explained to you, because there were a few selected parts of the statement which the Crown asks you to look at and suggest that it supports the Crown case rather than supporting the defence.
It would not have been fair for the Crown simply to give you two or three selected one liners from a lengthy interview like that. To put the bits that the Crown referred to into context you have heard the whole of the interview so you know that there isn't some fiddling with what was being said, putting things out of context. You can understand how the words were spoken and why, but the only person or the only party that can derive any help from that statement is the Crown.
It's Mr M's decision and he's perfectly entitled to make it, and I repeat that you don't take any marks away from him because he chose not to give you any evidence, but by the same token, you don't give him any marks on giving the statement he gave to Mr Whitaker. It can't be used for that purpose. I'll come to the points that the Crown made on it a little bit later. Please just bear in mind you can only use his statement if you see in it things that assist you to a conclusion adverse to Mr M, not for things you see in it that help him along. It doesn't make a positive case; it can only be used negatively. (emphasis added)
Such may well be the views of the average juror unless they receive correct directions on the matter.
[16] M vThe Queen (1994) 62 SASR 364.
In my view, the need for such directions was acknowledged by the Court of Criminal Appeal in R v Porter.[17] In that case the appellant did not give evidence and the defence largely relied upon statements made by the appellant in a police interview. The trial judge had said this about the interview:[18]
You will recall that the accused made statements to the police by which he sought to exonerate himself. As I have said, that is evidence that you must consider and take into account along with all of the other evidence in the case. They are, nevertheless, self-serving statements not on oath and not subject to cross-examination. You should give them such weight as you see fit, bearing these considerations in mind. You may regard some of the statements made by the accused as tending to incriminate him.
[17] (2003) 85 SASR 581.
[18] R v Porter (2003) 85 SASR 581 at 593.
The grounds of appeal, inter alia, complained of failure to put the defence and that the directions had the effect of commenting upon the decision of the accused not to give evidence in an impermissible manner. These complaints were rejected by the Court of Criminal Appeal but in doing so their Honours noted that the trial Judge had correctly directed the jury as to the status of the exculpatory statements, namely that they were evidence to be considered along with the evidence given in court. Sulan J said of this:
[62]The trial judge correctly directed the jury that they should have regard to the statements made by the appellant to the police and that they should consider those statements along with the other evidence in the case. He correctly directed the jury that they were self-serving statements not on oath and not subject to cross-examination. He left it entirely to the jury to give those statements whatever weight the jury considered was appropriate. He correctly told the jury that some of the statements made by the appellant may be regarded by them as tending to incriminate the appellant.
[63]In my view, none of these directions either undermined the statements made by the appellant to the police nor did they in any way amount to a comment upon the failure of the accused to give evidence. The direction did no more than bring to the jury's attention the fact that the appellant had made statements to the police, that they should consider those statements together with other evidence in the case bearing in mind that the statements were not on oath and not subject to cross-examination. The trial judge left it entirely to the jury to give whatever weight they considered the statements to the police should attract. In my view, the direction was correct.
Although this passage might be interpreted as simply dealing with whether the precise words of the directions were correct or incorrect, it seems to me that it actually proceeded on this basis: it was required as a matter of principle to direct the jury as to the status of the appellant's statements and, for the very reason that the direction was discharging that requirement, one should be very slow to regard it as impermissible comment in relation to the decision of the accused not to give evidence.
An example of a more explicit holding that express directions are required as to the correct use of exculpatory statements is afforded by the line of authorities that recognised the necessity of directing the jury as to the correct approach to be taken to the contents of the now defunct unsworn statement.
In Sorgenfrie v The Queen,[19] Smithers J (with whom Bowen CJ and Fisher J concurred as to this aspect) produced a lengthy and learned exposition of the history and status of the unsworn statement examining many of the relevant authorities. In the course of the judgment his Honour stated:[20]
Having regard to the foregoing it is my opinion that in the trial in the Australian Capital Territory of the offences for which the appellant was tried it was necessary that the jury should be directed that statements of fact in the appellant's unsworn statement were to be considered as evidence of the facts stated and given such weight, alongside the other evidence, as the jury might, in all the circumstances and having regard to its inherent "infirmities", consider it to be entitled. Whether any such statements would be believed would of course depend on whether it was in itself regarded as credible by the jury, and whether although otherwise credible it might be contradicted by other evidence more credible. But the evaluation of the credibility of what was said in the unsworn statement, inherently in itself, or in competition with other evidence supporting a contrary inference or fact, would be for the jury. But nevertheless in some circumstances a jury acting properly and sensibly might believe the unsworn statement of the prisoner rather than the sworn evidence of some other witness. It is always possible that the truth may be spoken from the dock and falsehoods from the witness-box.
Later in his judgment his Honour stated:[21]
To fail to direct the jury that the statements of fact in the unsworn statement were evidence, albeit with the infirmities mentioned, was an error of law. Had the trial judge considered the unsworn statement to be evidence having probative value if believed, it was essential that the jury be directed with reference to each defence that such evidence may have supported. In a case of the nature of this one this requirement would persist notwithstanding a failure by counsel to seek a direction. This principle was recently affirmed in a unanimous decision of the Full Court of the High Court of Australia in Howe v R where it was said: "The essential question here is whether the trial judge should have perceived that an issue based on s 247 was fairly raised on the evidence. With respect, we think he should have done so. The appropriate principle is that stated by Barwick CJ in Pemble v R as follows: "Whatever course counsel may see fit to take, no doubt bona fide but for tactical reasons in what he considers the best interests of his client, the trial judge must be astute to secure for the accused a fair trial according to law. This involves, in my opinion, an adequate direction both as to the law and the possible use of the relevant facts upon any matter upon which the jury could in the circumstances of the case upon the material before them find or base a verdict in whole or in part.[22]
[19] (1980-1981) 51 FLR 147.
[20] Sorgenfrie v The Queen (1980-1981) 51 FLR 147 at 168.
[21] Sorgenfrie v The Queen (1980-1981) 51 FLR 147 at 177-178.
[22] In fact his Honour proceeded to dismiss the appeal. This was because an analysis of the facts disclosed that the unsworn statement in fact constituted an admission of the offence charged against the appellant.
The nature and extent of the exculpatory material in the present case
The second matter upon which the fate of an appeal such as this may depend is the extent to which the interview contains exculpatory material and the nature thereof. The giving of correct directions will be the more critical when the interview contains some exculpatory material of substance than when an interview consists of little more than bare denials.
The case of M v The Queen[23] is an example of this approach. There, Duggan J considered the exculpatory material and stated:[24]
Although most of the interview consisted of simple denials, the appellant did give explanations for various matters including why he sent certain letters and a Valentine's Day card to the complainant. He also commented upon why he considered the allegations had been made against him. He gave versions of the circumstances in which he purchased presents for the complainant and why he took her on a holiday to New Zealand, a trip on which she alleged sexual intimacy took place between them. He gave his version as to why the complainant left home and he referred to a threat which she made to "get" him.
A jury might well consider that statements against interest carry more weight than self-serving statements, but without the accused's denials the jury were left with allegations by the complainant which were uncontested. Furthermore the appellant went beyond mere denials and gave his own explanation of some occurrences. I cannot agree with the Crown's submission on appeal that the denials and what the appellant said about various matters could not have made any difference to the jury's approach to the matter.
[23] (1993-94) 62 SASR 364.
[24] M v The Queen (1993-94) 62 SASR 364 at 370-371.
In the present case the two interviews with the appellant contained a good deal of potentially important material that could be used in favour of the appellant. Without being exhaustive, that material included:
·The fact that he was willing to speak extensively to police without a lawyer.
·The fact that he was willing to go in a line-up.
·The details of the broader context of the home invasion as an incident in a feud in which relatives or associates of the prosecution civilian witnesses were involved with real associated dangers of contamination of their evidence.
·The details of how and why he might be wrongly identified including the availability of photographs of him on the internet and the rumours in the Aboriginal community that he had been present at the home invasion.
·His comments as to why false allegations had been made against him.
·The details he gave of his age and date of birth were relevant to his complaint as to the dangers associated with the use by police of an old 2002 photograph depicting him at the age of about 27 being shown to two witnesses who described the offender as being aged “mid twenties” and “mid to late twenties” respectively, when the appellant was in fact 32 years, 6 months old at the time of the home invasion.
·His version of how the meeting at the Berkley Hotel on 20 December 2008 came about including his statement that Miller-Koncz had to be pointed out to him by another person as the victim of the home invasion.
·His version of the conversation at the Berkley Hotel on 20 December 2008 with Miller-Koncz.
·His assertions that he would not reveal information he had as to the identity of the real offenders out of a sense of loyalty as being a possible reason why he decided not to give evidence and wished to avoid being cross-examined as to such matters.
As to this last matter of an assertion that he wished to protect the real offenders, I do not wish to be misunderstood. There is no doubt that a person who has information as to the identity of the perpetrator of a crime should give that information to the authorities and is not to be commended for refusing to do so.
However, we must recognise the fact that ties of loyalty to friends and relatives may be strong, particularly so in the Aboriginal community,[25] and a jury needs to bear this in mind as possibly being the basis, wholly or in part, for the decision not to give evidence. This matter is best considered in the context of a broader consideration of the right of an accused person not to give evidence in court.
[25] Indeed, the following passage appears in the cross-examination of Dixon:
Q.It's a tight-knit community that one isn't it.
A.Yes.
Q.The mob from Point Pearce stick together pretty well don't they.
A.It's how it should be.
The right of an accused person not to give evidence in court
Although silence by the accused in court is sometimes referred to as a “failure to give evidence”, it is best to avoid this terminology which tends to suggest that the accused has, in some undefined way, failed to live up to a norm or expected standard of giving evidence. Even worse, it may tend to suggest that the accused’s silence in court may stem from a consciousness of guilt.
The danger that the right to give evidence may become a practical obligation to do so has been of concern ever since the debates on the English Evidence in Criminal Cases Bill. As Edward Marjoribanks, the biographer of Lord Carson, recounts:[26]
This was the Act which allowed prisoners to give evidence on their own behalf in criminal trials. It was brought forward in the cause of humanity, and was generally understood to be an Act in the interests of all prisoners, but Carson, with his vast knowledge as criminal prosecutor, knew that it had always been a great advantage for the prisoner to be incompetent to give evidence on his own behalf: He said that the Act would, far from proving a boon, be oppressive to prisoners, and so exactly have his prophecies been fulfilled in the event that it is worth while to anyone interested in criminal jurisprudence to observe his remarks in a speech now forgotten, but highly praised at the time. “The Attorney-General, with a persuasiveness against which it behoves us to be on our guard, has said that no prisoner need give evidence if he should not wish to do so. This, of course, may be the intention of the framers of the Bill, but, as a matter of fact, if the measure passes, every man tried for his life will be obliged to present himself for examination and cross-examination. … We are putting an end to a great safeguard the citizens of this country have enjoyed for centuries, namely, that the Crown must independently prove its case”.
[26] Edward Marjoribanks: The Life Of Lord Carson Volume I at 275 (1932). McHugh J in RPS v The Queen (2000) 199 CLR 620 at 641 refers to the same matter but gives different source references.
In similar vein, in Azzopardi v R[27] Gaudron, Gummow, Kirby and Hayne JJ. posed the question:
[40] …What is to be done to ensure that the choice to give evidence or stay silent at trial remains a real choice and not simply a disguised obligation to give evidence? Providing an opportunity to answer a charge or deny an accusation could easily become an obligation to give evidence if silence could be treated as an admission of guilt.
[27] (2000-2001) 205 CLR 50.
In fact, there are various reasons why an accused person might elect not to give evidence in court other than from a consciousness of guilt. One of them is the matter of loyalty to a relative or friend discussed above. As Justice Heydon observes in his capacity as editor of Cross on Evidence:[28]
The accused might refrain from testifying, not because of a consciousness of guilt, but because of a fear of cross-examination on the accused’s record, because of a wish to protect a friend or because of a fear of being obliged to disclose some compromising information. (emphasis added)
Of course, there are other reasons too. Thus, in Azzopardi v R[29] Gaudron, Gummow, Kirby and Hayne JJ referred to:
[47]…the many considerations which an accused, and counsel for the accused, may have had to take into account in deciding whether to give sworn evidence, to make an unsworn statement, or to stand mute. Those considerations extend well beyond whether the accused has some answer to the charge.
[48]The choices available to an accused are now more limited than they were. Even so, the decision whether to give evidence or, for example, to rely on a record of interview with police which, in very serious cases, is often a video record, remains a difficult choice. It is not a choice which is affected only by an assessment of whether the accused can give a convincing account which would contradict or deny the allegations made. In any event, that assessment, referring as it does to a "convincing account", is complex. It would, therefore, be wrong to treat the choice as having been made by reference only to whether the accused was guilty.
[28] Cross R and Heydon JD, Cross on Evidence (7^th Ed, LexisNexis Butterworths, 2004) at [23015].
[29] (2000-2001) 205 CLR 50.

Their Honours here refer to a legitimate choice to rely on the contents of a police interview and, once again, this is a matter that directly arises here and has been discussed above. In the present case, the prosecutor having elected to tender the portions of the two interviews, the appellant may well have chosen to not give evidence based, at least in part, upon the view that he had said all he could say about the matter to the police and would rely on that.
Conclusion
I have come to the conclusions, first, that there was substantial exculpatory material to be found within the interviews going beyond a mere denial of the charges and, second, that one can not assume that the jury would have known that they were permitted to treat such exculpatory material as evidence in the case in favour of the appellant without a direction to that effect. The matter was exacerbated in the circumstances of the present case by the presence of other directions, the effect of which tended to suggest that the jury could not so use the exculpatory material.
I stress that I have no doubt that his Honour was well aware of the law as laid down in Spence v Demasi[30] and other cases. However, this does not alter the objective effect of the summing up. The deficiency was a serious matter in that the summing up, taken as a whole, has had the unintended effect of depriving the appellant of the right to have his interviews properly considered by the jury.
[30] (1988) 48 SASR 536.
The appellant has established both that he has not had a fair trial according to law and that a miscarriage of justice has occurred.
Application of the proviso?
This case is to be decided at the intersection of two complex areas of the criminal law. The first is the area of identification evidence and the second is the right of an accused person to remain silent in court, both of which areas in turn engage obligations of the court to provide sufficient and clear directions to the jury to enable it properly to carry out its difficult task.
Counsel for the DPP, Mr Kimber SC, very properly and correctly volunteered at an early stage that he would not submit that the proviso should be applied in the circumstances of the present case. There is no doubt at all that I would have come to that same conclusion without that concession but I am grateful for it as it obviates the necessity for yet another traversal of the authorities in this area.
Suffice it to say, the prosecution case had its strengths but also significant weaknesses. It was not a compelling or overwhelming case and I consider that the appellant has established that he was deprived of a real chance of acquittal by reason of the failure to give correct directions as to the use of exculpatory material in the records of interviews.
Re-trial or judgment of acquittal?
I consider that this is a clear case in which there should be an order for a re-trial rather than for the entry of a judgment of acquittal and counsel for the appellant did not submit to the contrary.
Proposed orders
I would allow the appeal, set aside each of the convictions and order that a re-trial be held upon the present Information.