R v Weetra

Case [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

  1. 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.

  2. 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.

  3. 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.

  4. The circumstances giving rise to the appeal are set out in the reasons of Peek J, and it is not necessary to repeat them.

  5. 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.

  6. The appellant was interviewed a second time on 2 June 2009.  This…

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R v Weetra [2010] SASCFC 52
Case
[2010] SASCFC 52
Decision Date

CaseChat Overview and Summary

In R v Weetra, the appellant was convicted in the District Court of serious criminal trespass and aggravated threatening to cause harm. The appellant did not give evidence at his trial, and records of his interviews with police were read to the jury. The appellant contended that a miscarriage of justice had occurred because the trial judge failed to provide any directions to the jury regarding the permissible uses of these out-of-court statements.

The central legal issue before the appellate court was whether the trial judge's omission to direct the jury on the use of the appellant's out-of-court statements constituted a miscarriage of justice. This involved considering the right of an accused person to remain silent and the potential for silence to be misinterpreted by a jury, particularly in the context of strong community ties. The court also had to assess whether the prosecution's case was sufficiently compelling to overcome this failure in directions.

The appellate court reasoned that the trial judge erred by not directing the jury on how they could use the out-of-court statements made by the appellant to the police. The court acknowledged that the prosecution's case had weaknesses and was not overwhelming, and that the failure to provide correct directions regarding the use of exculpatory material in the police interviews deprived the appellant of a real chance of acquittal. The court considered the historical concerns surrounding the right of an accused to remain silent and the potential for this right to become a practical obligation if silence could be construed as an admission of guilt.

Consequently, the appeal was allowed, the convictions were set aside, and the matter was remitted to the District Court for a re-trial.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

ANDERSON J WHITE J PEEK J
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.

Ratio Decidendi

Legal Principle Established

Established by: ANDERSON J, WHITE J, PEEK J

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