Roberts v The State of Western Australia - [2010] WASCA 223

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: ROBERTS -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 223

CORAM: McLURE P
PULLIN JA
MAZZA J

HEARD: 8 OCTOBER 2010

DELIVERED : 23 NOVEMBER 2010

FILE NO/S: CACR 4 of 2010

BETWEEN: REGINALD GEORGE ROBERTS
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :YEATS DCJ
File No  :IND 563 of 2008

Catchwords:

Criminal law - Trial judge intervened to prevent accused giving evidence about statements made by his girlfriend out of court - Observations made and directions given by trial judge suggesting that the appellant should call the girlfriend as a witness - Trial judge omitted to direct the jury that they should not speculate about what evidence the girlfriend might have given - Whether observations and direction amounted to appellable error

Legislation:

Criminal Code Act Compilation Act 1913 (WA), s 10B
Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 6(1)(c), s 10

Result:

Conviction set aside
Retrial ordered

Category: B

Representation:

Counsel:

Appellant: Mr J D Edwardson QC & Mr S Vandongen
Respondent: Mr J Mactaggart

Solicitors:

Appellant: Jon Lister, Barrister & Solicitor
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285
Kamleh v The Queen [2005] HCA 2; (2005) 79 ALJR 541
R v Apostilides [1984] HCA 38; (1984) 154 CLR 563
Richardson v The Queen [1974] HCA 19; (1974) 131 CLR 116
Varney v The Queen (Unreported, WASCA, Library No 960463, 23 August 1996)
Walton v The Queen [1989] HCA 9; (1989) 166 CLR 283
Weissensteiner v The Queen [1993] HCA 65; (1993) 178 CLR 217
Ziems v The Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279

McLURE P: I agree with the orders proposed by Pullin JA. I can shortly state my reasons for that conclusion as all necessary background material is detailed in his reasons.
Grounds of appeal 1 and 2 relate to the trial judge's direction to the appellant's counsel that he was not permitted to elicit from the appellant in examination‑in‑chief the content of out of court statements made by his then girlfriend Sandy to him during the road trip from South Australia to Western Australia.
The trial judge was justified in intervening at the stage she did. The question which prompted the intervention was inappropriately open ended ('tell the jury about that discussion [with Sandy]' (ts 226). The appellant's counsel had not laid any proper foundation for the admission of the evidence, which was prima facie inadmissible hearsay. Indeed, the appellant's counsel did not seek to be heard in opposition to the trial judge's apprehension that the proposed evidence was inadmissible hearsay.
It subsequently emerged that the defence case was that the appellant did not have any knowledge of the cannabis in the metal tool box (the subject of count 1) until Sandy informed him of that fact at the unscheduled road side stop at El Caballo Blanco; that the appellant did not have any knowledge of the cannabis in the cardboard box in one of the trailers left at Kewdale until Sally informed him of that fact on the return trip to collect the trailer left at Northam; and that the appellant's admissions to police concerning counts 1 and 2 were false and only made to protect Sandy.
Whether evidence of a statement made out court by a person who is not called as a witness at trial is hearsay depends upon the use that is sought to be made of that statement. If what is relevant is the fact that the statement was made, rather than the truth of what was said, then the statement is not hearsay: Kamleh v The Queen (2005) 79 ALJR 541.
Insofar as what Sandy said to the appellant out of court was, on the defence case, the basis for the appellant's knowledge (perhaps more accurately, 'belief') about the presence of cannabis in his truck and trailer and his motive for making his admissions, the evidence is not hearsay. What is relevant is the fact that the statements were made to the appellant. On the other hand, it is clear from the appellant's written submissions in the appeal that the appellant intended to rely on aspects of Sandy's out of court statements for other purposes (such as her intention) which would in my view be inadmissible hearsay.
However, notwithstanding the trial judge's direction to the appellant's counsel concerning the inadmissibility of out of court statements made by Sandy to the appellant, all relevant evidence on the subject was in fact elicited in examination‑in‑chief (ts 227, 232, 233, 234, 235) and more particularly in cross‑examination of the appellant. The appellant did not at the hearing of the appeal identify any relevant admissible evidence that had not been adduced. Moreover, the trial judge in her summing up fully and accurately summarised the defence case, including Sandy's role in informing the appellant of relevant matters (ts 428, 429, 436, 437, 440, 441). I would dismiss grounds 1 and 2.
Ground 3 relates to a direction given by the trial judge to the jury relating to the weight to be given to hearsay statements. After the trial judge intervened to prevent the appellant from answering a question about the content of a discussion with Sandy, the trial judge directed the jury as follows:
Under our law, at trial you cannot lead what is called hearsay. In other words, a person can't give evidence of what another person said to them. They can say, 'I spoke to them.' But they can't say what the person said. So I'm going to ask you to ignore any evidence that has been led. It's inadmissible. If there needs to be evidence of what that person said that person needs to come and give it (ts 231).
That unqualified statement of the law is erroneous. I understand the appellant's contention to be that that direction to the jury would cause it to reject or ignore the evidence which was subsequently adduced relating to what Sandy said to the appellant which was relevant to the defence case based on the timing of his knowledge of the cannabis in the truck and trailer and his motive for making the admissions. The central question is whether the trial judge's tacit acknowledgement of the admissibility of the evidence subsequently adduced and the trial judge's summing up of the defence case in which she repeatedly referred to what Sally said to the appellant, entirely negatived the effect of the erroneous direction. I am in some doubt as to whether the jury would inevitably resolve in the appellant's favour the tension between that direction and the conduct of the balance of the trial, including the summing up. However, as I would uphold ground 4, it is unnecessary to determine that issue.
The focus of ground 4 is the following statement in the trial judge's summing up (the fairness direction):
Now, there are two matters I need to raise with you because of my duty to ensure that the trial is a fair trial, that you get the whole picture, not just partial truth. The first is the fact that Sandy was not called as a witness. Under the Rules, in a criminal trial, if the State does not call a named witness, the State must make that witness available for the defence to call them. So ladies and gentlemen, in this case neither the State nor the defence called Sandy as a witness (ts 439).
The context for the fairness direction was the appellant's counsel's invitation to the jury to draw an adverse inference against the State for its failure to call Sandy, particularly when that was its stated intention at the commencement of the trial. In circumstances such as this where the prosecution chose, for good reason, not to call a witness, the adverse inference invited by the appellant's counsel was incapable of arising. The appropriate course was for the trial judge to direct the jury that no adverse inference could be drawn against the State or the appellant for the failure to call Sandy and that the jury should not speculate about what her evidence may have been if she had been called as a witness. Unfortunately the trial judge did not give a direction to that effect.
It is clear (at ts 439) that the trial judge regarded the appellant's counsel as having misled the jury by giving them the partial truth and she intended to remedy that by giving them the whole picture. However, this information was provided in the absence of the jury.
Even so, when regard is had to both of the two matters referred to by the trial judge in the first sentence of the fairness direction, it might be understood by the jury that her Honour was indeed providing the whole picture in which to consider those aspects of the address of the appellant's counsel relating to the failure of the State to call Sandy and the suggestion that the State selectively used and supplied telephone intercepts to the appellant.
Confined to its immediate context, I would not be persuaded that the fairness direction was capable of supporting an inference that the defence should have called Sandy (from which the jury may draw the further inference that her evidence would not have assisted the appellant). It is wrong to invite a jury to conclude that an accused could be expected to have called a witness or invite the jury to infer that the evidence of that witness would not have assisted the accused: Dyers v The Queen (2002) 210 CLR 285 [12].
However, the fairness direction needs to be considered in the context of earlier observations made by the trial judge in the presence of the jury

when addressing the subject of hearsay evidence. After the appellant's counsel had elicited evidence from the appellant to the effect that it was Sandy who told him to pull into the Lakes, the trial judge observed that the evidence was very close to hearsay and then said to the appellant's counsel:
YEATS DCJ: You're doing very well. Is there any reason we can't hear from Sandy?
EYERS, MR: Well, there is, but I think it would reflect ‑ well, I can tell your Honour candidly. The State said they were going to call her, but they chose not to. So your Honour asked the question, I'm forced to reply.
YEATS DCJ: Well, but if it's part of your defence you can tell the State who you want to be called. You must have wanted her called, if you want this evidence in (ts 227 ‑ 228).

The trial judge's observations suggest a view on her part that the defence should call Sandy if reliance was to be placed on what she said to the appellant. Those observations together with the fairness direction are reasonably capable of conveying to the jury that the defence should have called Sandy and the failure to do so meant the jury did not have the whole picture, just the partial truth. I would uphold ground 4.
PULLIN JA: The appellant was charged with two offences in an indictment which read:
(1)On 14 October 2007 at The Lakes Reginald George Roberts supplied a prohibited drug, namely cannabis to another [contrary to s 6(1)(c) of the Misuse of Drugs Act 1981].
(2)On 15 October 2007 at The Lakes Reginald George Roberts had in his possession a prohibited drug, namely cannabis, with intent to sell or supply it to another [contrary to s 6(1)(a) of the Misuse of Drugs Act 1981].
The appellant was found not guilty on count 1 and guilty on count 2. The appellant appeals against the conviction entered following the jury's verdict of guilty on count 2.

Uncontroversial facts

The appellant lived primarily in Adelaide and owned a trucking business. He worked for that company as a truck driver. On Saturday 13 October 2007 the appellant began driving his prime mover towing three freight trailers from Adelaide towards Perth. Accompanying him was his girlfriend 'Sandy'.

Onboard the truck or its trailers were two containers packed with cannabis. One of the containers was a metal toolbox. The other was a cardboard box. The appellant drove the truck with its three trailers across the Nullarbor and then down the Great Eastern Highway towards Perth. East of Perth he stopped at a road train assembly area near Northam. Here the appellant disconnected one of the three trailers because trucks are not permitted to travel down Greenmount Hill into Perth with three trailers in tow. This trailer was left at the road train assembly area.
The appellant then continued on with his journey along Great Eastern Highway before stopping at El Caballo Blanco which is a location before The Lakes Roadhouse. The appellant then drove on, arriving at The Lakes Roadhouse at about 10.40 pm. At The Lakes Roadhouse the appellant parked his truck close to another truck (a Mitsubishi). Police observed a figure move from the appellant's truck to the Mitsubishi truck. The trucks then moved off and travelled towards Perth. Not long after leaving The Lakes, the Mitsubishi truck was stopped. A search revealed the metal toolbox containing cannabis weighing in excess of 2.5 kg. This was the toolbox which had been on the appellant's truck. This cannabis was the subject of the supply charge in count 1. Later, on the morning of 15 October 2007, the appellant was arrested at the gates of a freight line company in Welshpool. The appellant directed the police to the cardboard box in one of his trailers. The cannabis in this box, weighing over 8.5 kg, was the subject of the possession charge in count 2.

The prosecution case

The grounds of appeal allege error justifying the quashing of the conviction on count 2, but they involve a complaint about comments made by the trial judge concerning the evidence relating to count 1 and which the appellant says would have affected the jury's reasoning in relation to count 2. As a result, it is necessary to relate what happened in relation to count 1 even though the appellant was acquitted on that count.
There was a strong prosecution case on the evidence‑in‑chief in relation to each count. As a result of a police warrant, telephone calls made by the appellant were intercepted. They strongly suggested that the appellant arranged for the collection and packaging of drugs while he was in South Australia. Police operatives monitored the movement of the appellant's truck. Evidence of the uncontroversial facts set out above was given to the jury. As to the event at The Lakes Roadhouse, a police operative said that he observed a person he believed to be a male person walk from the driver's side of the appellant's vehicle, across to the Mitsubishi truck.
When the appellant was arrested in Welshpool early the next morning he was interviewed. A video recording was made of this interview and played to the jury. In it the appellant admitted supplying the toolbox to the driver of the Mitsubishi truck at The Lakes Roadhouse. He admitted that he suspected cannabis was in the toolbox. If that had been the only evidence he would doubtless have been found guilty on count 1.
There was also a strong prosecution case in chief relating to the second count. Once again, the prosecution relied upon the intercepted telephone calls as evidence that it was the appellant who had made the arrangements to have the cannabis collected and packaged while he was in South Australia. As already mentioned, on the morning of 15 October 2007, the appellant's truck was stopped at the gates of a freight company in Welshpool. The appellant had the keys to the gate. He had earlier deposited two trailers within the yard. With the police in attendance, he opened the gate and the police and the appellant went down to one of the trailers parked at the rear of the premises. The appellant directed the police to a cardboard box which was on the trailer. It was brought down and found to contain a large quantity of cannabis. This was recorded on video. The appellant admitted to the police that he had brought the cardboard box containing the cannabis to Western Australia.
As with the first charge the appellant would doubtless have been found guilty if that had been the only evidence.

The appellant's evidence at trial

The appellant gave evidence at trial. He denied arranging to bring cannabis to Western Australia. He denied that the intercepted telephone calls should be interpreted as conversations concerning cannabis. He denied knowing there was cannabis on board the truck when he left South Australia. He said that he stopped at El Caballo Blanco on the evening of 14 October 2007 because he suspected he was being followed by a vehicle. His evidence was that he then had a conversation with his girlfriend about why he was being followed. He wanted to give evidence at trial about what his girlfriend said to him but the trial judge intervened (without any objection from the prosecution) and prevented this evidence being given. The part of the transcript revealing exactly what happened appears below. The court was informed at the hearing of this appeal that the evidence the appellant would have given was that his girlfriend gave him information as a result of which he then had knowledge that there was cannabis in the metal toolbox.
The appellant's evidence was that after the argument, the appellant drove the truck to the BP Service Station at The Lakes. He gave evidence that he had not walked over to the Mitsubishi truck. He said that it was his girlfriend who did so and it was she who carried the metal toolbox across to the Mitsubishi truck. His evidence was therefore that he lied to the police when he told them that he had supplied the cannabis to the driver of the Mitsubishi truck. He said he did so to protect his girlfriend.
The appellant's evidence was that after leaving The Lakes he drove down Greenmount Hill to Perth and to the suburb of Welshpool where he arrived at the yard of the freight‑line company. He dropped off the two trailers in this yard. The appellant gave evidence that he did not know that there was a cardboard box containing cannabis in one of the trailers. After dropping the two trailers, he then left Welshpool and drove back to Northam to collect the third trailer which he intended to bring back to the freight company's yard in Welshpool. His evidence was that on the way back up to Northam he was told by his girlfriend about the existence of the cardboard box containing cannabis in one of the trailers at Welshpool. His evidence was that he did not know that there was a box with cannabis in the trailer until then.
The appellant gave evidence that he drove the prime mover with the third trailer back to the Welshpool yard. When he pulled up at the gates and got out intending to unlock the gates to take in the third trailer, the police pulled up alongside and he was arrested. He said he was able to direct the police to the location of the cardboard box in the trailer in the yard because of what he had been told by his girlfriend. He gave evidence that he told the police it contained cannabis only because he had been told by his girlfriend on the second trip down from Northam.

The trial judge's intervention

At this stage it is appropriate to quote from the transcript which reveals that the trial judge intervened and prevented the appellant from giving evidence about his conversation with his girlfriend about the toolbox. The intervention by the trial judge occurred when the appellant was giving evidence‑in‑chief. The appellant had just explained that he pulled up at El Caballo Blanco because he gained the impression that a car was following him. He said that he woke his girlfriend up. The transcript then reads (ts 226 ‑ 231):
All right, tell - tell the jury about that discussion - that argument, and what emerged‑‑‑Well, I was probably there for, I don't know, 15/20 minutes arguing. It was a fairly heated argument. And she said that she put a box‑‑‑
YEATS DCJ:   Now, just a moment. Is this hearsay?
EYERS, MR:   I can deal with it otherwise than hearsay, yes.
YEATS DCJ:   Well, ‑‑‑
EYERS, MR:   Strictly‑‑‑
YEATS DCJ: ‑‑‑ it is hearsay. We don't want to hear what she said to him. You can talk about anything that she did, but you can't lead evidence of what she said to him. You can call her to say what she wants to say but you can't lead his evidence of that. You know the rules, Mr Eyers.
EYERS, MR:   Certainly. Forgive me. Thank you, your Honour.
You - you therefore had a discussion with her, okay. As her Honour points out, that's hearsay, we can't bring it into play what she told you‑‑‑Mm hm.
But as a result of what she told you, what did you do from El Caballo?‑‑‑There was - there was instructions received that I had to like - had to pull in at The Lakes, and which I did. And then‑‑‑
Pause - pause there a second?‑‑‑Yeah.
You pulled into The Lakes?‑‑‑Yes.
Did you choose to pull into The Lakes?‑‑‑No.
Were you told to pull into The Lakes?‑‑‑Yes.
By whom?‑‑‑By Sandy.
MR EYERS, MR: Okay.
YEATS DCJ:   That's very close to hearsay, Mr Eyers.
EYERS, MR:   Yes.
YEATS DCJ:   You're doing very well. Is there any reason we can't hear from Sandy?
EYERS, MR:   Well, there is, but I think it would reflect - well, I can tell your Honour candidly. The State said they were going to call her, but they chose not to. So your Honour asked the question, I'm forced to reply.
YEATS DCJ:   Well, but if it's part of your defence you can tell the State who you want to be called. You must have wanted her called, if you want this evidence in.
EYERS, MR:   Well, your Honour, I'm‑‑‑
YEATS DCJ:   I think I might ask the jury to go out for a minute. I'm just very puzzled as to what's going on, because there are rules.
(At 3.00 pm the jury retired)
in the absence of the jury
YEATS DCJ:   Now,‑‑‑
EYERS, MR:   Certainly. Let me assist, your Honour.
YEATS DCJ: ‑‑‑ Mr Eyers, you know what the rules are. I'm just very amazed, because you're a really good lawyer, and you would know you can't lead hearsay, but you were just going to do it. Now, what was your thinking?
EYERS, MR:   Well, perhaps I wasn't as on the ball as I should have been. Your Honour, I apologise.
YEATS DCJ:   Well, so if you need the evidence of Sandy, why isn't she here to give it?
EYERS, MR:   Well, the law, as I understand it, your Honour, is contained in the case of the State against Apostilides, and the upshot of that case ‑ your Honour, I'm re‑starting my computer and I can give you a citation.
YEATS DCJ:   I know the case of Apostilides.
EYERS, MR:   Yes. But the bottom line is, having looked at the case, it's clear that the State can choose the witnesses they call.
YEATS DCJ:   Yes.
EYERS, MR:   They, to an extent, have an unfettered discretion.
YEATS DCJ:   Within the bounds of fairness.
EYERS, MR:   Absolutely. And I consulted the case. It's something my learned friend and I discussed for a considerable period. I read the case and I formed the impression on the basis of the case law and the judgment in it, that I couldn't properly compel her or argue that the State be forced to call [Sandy]. And that's the long and the short of it.
YEATS DCJ:   Whose idea was it not to call her? I mean I expected her to be called. She's right at the start of the depositions. What happened?
MATTOCKS, MS:   That's correct, your Honour. Your Honour, I advised my learned friend that I wouldn't be calling. I've tried to have a number of discussions with [Sandy], and I asked her about what was contained in her statements and she said, basically, 'I don't want to talk to you, I'm scared of being charged.' And she kept maintaining that line, and she refused to talk to me. I was concerned of possibly, as well, aborting the trial or anything like that, but I did say to my learned friend if he wanted her she would be made available for him, your Honour.
YEATS DCJ:   And did you make her available or did he‑‑‑
MATTOCKS, MS:   Yes, your Honour. She's been sitting outside each day of the trial, and I still have her contact details.
YEATS DCJ:   Yes.
EYERS, MR:   Well, with respect, if only‑‑‑
YEATS DCJ:   Isn't that the duty of the State. They aren't required to call a witness that they think may not be a witness of truth, but they certainly have to make the witness available to you, and I think she's done that.
EYERS, MR:   Look, certainly. No criticism.
YEATS DCJ:   Are you suggesting that you're allowed to lead hearsay if the State doesn't call a witness?
EYERS, MR:   No. No, look, I think‑‑‑
YEATS DCJ:   What does this have to do with it? That's what I don't understand.
EYERS, MR:   Well, look, sorry, it led on from a question that your Honour put immediately afterwards. I think we dealt with the hearsay point, and then your Honour immediately raised the question, 'Well, why isn't this witness being called?'
I was just trying to help your Honour with that proposition that the State formed the impression after the beginning of the trial, and you obviously appreciate that because she was one of the witnesses read out to the jury that the State would be calling. Equally, I have certain professional duties, and I cannot – to assist your Honour in the absence of the jury - I cannot call a witness simply to impugn them.
YEATS DCJ:   Well, you could call her though to lead the evidence that you're trying to lead by hearsay from this witness. I mean, this happens all the time, Mr Eyers. The witness is called and the witness refused to give the evidence because it might incriminate her, and then she ends up getting a certificate. Now, that is the proper way to do this. I don't want to interrupt you‑‑‑
EYERS, MR:   No, well, I appreciate your Honour's‑‑‑
YEATS DCJ: ‑‑‑ and it was wrong for you to be leading hearsay from your witness.
EYERS, MR:   Yes.
YEATS DCJ:   Now, I want it to stop.
EYERS, MR:   Yes.
YEATS DCJ:   And if you need the evidence of Sandy, everything is there for you to do it. You, for some reason, don't want to do that, but that's a matter for you.
EYERS, MR:   Well, yes, it's a matter for me, but it's also a matter of professional conduct and certain rules of court, but I take your Honour's point‑‑‑
YEATS DCJ:   Defence counsel day in and day out call a witness who says, 'He didn't do it, I did.' And before they say that they get a certificate. I mean, that's what's done. If that's what she wants to say.
EYERS, MR:   Yes. Well, your Honour's properly made the point. I take your Honour's point.
YEATS DCJ:   I do not want anymore hearsay led. We could still abort this trial. Because you're now, in front of the jury, leading evidence that is not admissible. And that is wrong. And I don't want it to happen again, Mr Eyers.
EYERS, MR:   By all means.
YEATS DCJ:   Now, I will have the jury back.
(At 3.05 pm the jury returned)
YEATS DCJ:   Now, members of the jury, I'm sorry to have had to interrupt the trial on what's actually quite a technical point. But it's an important legal point. Under our law, at trial you cannot lead what is called hearsay. In other words, a person can't give evidence of what another person said to them. They can say, 'I spoke to them.' But they can't say what the person said. So I'm going to ask you to ignore any evidence that has been led. It's inadmissible. If there needs to be evidence of what that person said that person needs to come and give it. So that is ‑ there are exceptions to the hearsay rule but I haven't had any of those raised with me. I just didn't want to keep interrupting. And I think Mr Eyers understands what needs to be done. So it's a matter for him. You may continue leading evidence.
EYERS, MR:   Thank you very much. Thank you very much, your Honour. Was it your idea to stop at El Caballo?‑‑‑Yes.
You set off from El Caballo having, as you've described, had a discussion?‑‑‑Mm hm.
With Sandy?‑‑‑Yes.
You next stopped at The Lakes‑‑‑‑‑‑?   Yes.
‑ ‑ ‑ Roadhouse. Is that a BP Roadhouse?   Yes, it is.

During addresses to the jury, counsel for the appellant said (ts 429 ‑ 430):
You have not heard from Sandy ... The State told you at the outset that they were going to call her. They've chosen not to, and it's not for the defence to tell the prosecution which witnesses to call, but it's a fact. You haven't heard from Sandy ... This has a resonance in this sense - it's for the State to prove their case. There is a presumption of innocence.
Mr Roberts has to prove nothing. Remember that. You heard she was going to be called. She wasn't called. Draw your own conclusions, therefore, on the basis of all of the evidence you have.
When addresses had been completed, and in the absence of the jury, counsel for the prosecutor said (ts 404):
I was a bit concerned when my learned friend talked about the State having named Sandy as a witness and then not calling her. Whilst it wasn't specific, it was, the State would say - amounted to an invitation to speculate about why she was not called.
The trial judge then said:
Yes. I don't think it's fair in a trial for that to be said and what I intend to say to the jury about that, and I think I should do it, under the rules in this court, if the State does not call a named witness like Sandy the State must make her available for the defence to call. In this case, neither the State nor the defence chose to call Sandy. Now, I'm doing that out of fairness because you've not given - you've given them a partial truth, Mr Eyers. You've done it quite - - -
EYERS, MR: Hoisted on my own petard, your Honour, yes.
Subsequently, in summing up to the jury her Honour said (ts 439):
Now, there are two matters I need to raise with you because of my duty to ensure that the trial is a fair trial, that you get the whole picture, not just partial truth. The first is the fact that Sandy was not called as a witness. Under the Rules, in a criminal trial, if the State does not call a named witness, the State must make that witness available for the defence to call them. So ladies and gentlemen, in this case neither the State nor the defence called Sandy as a witness.
The trial judge did not direct the jury they should not speculate what the girlfriend might have said had she been called. For completeness, it is appropriate to observe that the trial judge's comment to the jury that under the 'Rules' in a criminal trial that if 'the State does not call a named witness, the State must make that witness available for the defence to call them' was a reference to the advisable practice which should be followed, rather than to a rule of law: see Ziems v The Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279, 292 ‑ 294; Richardson v The Queen [1974] HCA 19; (1974) 131 CLR 116, 119 ‑ 122 and R v Apostilides [1984] HCA 38; (1984) 154 CLR 563.

The grounds of appeal

At the start of the oral submissions, the grounds of appeal read:
1.The learned trial judge erred in law in directing counsel for the appellant that he could not ask questions in examination in-chief of the appellant of what [Sandy] said to the appellant during the course of the trip from South Australia to Kewdale.
2.The learned trial judge erred in law in ruling that the evidence of the appellant in-chief of what the witness, [Sandy], said to him was inadmissible hearsay.
3.The learned trial judge erred in law in directing the jury at TT p231, that they could place no weight or reliance on hearsay statements and should ignore any such evidence.
4.The learned trial judge erred in law by, in effect, directing the jury that the appellant had a burden of proof in respect of his defence concerning the witness, [Sandy].
5.The learned trial judge erred in law in directing the jury that the appellant was obliged or should have called [Sandy] to give evidence, given that the respondent had failed or refused to do so, and that the appellant’s failure to do so meant that the trial was not fair and that the jury had only heard part of the truth.
6.The learned trial judge caused a miscarriage of justice by her intervention and, in effect, objection to the appellant’s counsel adducing evidence. The cumulative or aggregate of the errors or law and errors have caused the hearing to miscarry.
At the hearing of the appeal an application was made for leave to substitute two new grounds for grounds 4 and 5, reading:
4.The learned trial judge made a wrong decision on a question of law by directing the jury in effect that they had heard the partial truth by reason of the failure of either party to call … [Sandy]. Alternatively, the direction occasioned a miscarriage of justice.
5.The learned trial judge made a wrong decision as a question of law by failing to direct the jury that they should not speculate about why the witness [Sandy] was not called by either party and what evidence [Sandy] may have given had she been called to give evidence. Alternatively, that failure occasioned a miscarriage of justice.
The respondent did not object to the reformulation of the grounds and as they are largely reflective of existing issues and have merit, leave to appeal on those grounds should be granted.

Grounds 1, 2 and 3

In relation to grounds 1, 2 and 3, the trial judge erred in law in ruling that the appellant's counsel could not lead evidence from the appellant that he was told by his girlfriend about the existence of cannabis in the metal toolbox. A trial judge may rule that evidence is inadmissible even if no objection is raised by either party: Varney v The Queen (Unreported, WASCA, Library No 960463, 23 August 1996), 10 ‑ 11 (Ipp J). However, a trial judge who anticipates that inadmissible evidence is to be led, should not intervene in the way that her Honour did in this case in the presence of the jury. The trial judge should have asked the jury to retire while the question about what the proposed evidence was and whether the evidence was admissible was explored with counsel. The trial judge made no effort to hear submissions on those points. It is not clear what evidence the trial judge thought the appellant was to give, but whatever her Honour had in mind, she thought it would be inadmissible because of the hearsay rule.
The hearsay rule prevents evidence from a witness about an out of court statement made by another person if the purpose is to prove the truth of that statement. However, if, as here, the evidence was evidence from which an inference could be drawn about the witness' state of mind, then it was admissible: Walton v The Queen [1989] HCA 9; (1989) 166 CLR 283, 300 ‑ 301. This court was advised that the appellant wished to give evidence of a statement made by his girlfriend, which disclosed to him that the toolbox on the truck contained cannabis. Such evidence was admissible to prove the appellant's state of knowledge. Knowledge was relevant because to supply the drugs in the toolbox, the appellant had to know that the toolbox contained cannabis. Even if the appellant did not leave the truck at The Lakes Roadhouse and hand over the toolbox containing the drugs to the Mitsubishi driver, and therefore did not supply the cannabis, it would have been relevant to establish that from El Caballo Blanco to The Lakes, the appellant controlled the truck and therefore the cannabis, with knowledge that there was cannabis in the toolbox, thereby at least committing the alternative offence of possession of cannabis. (As to which see s 10 Misuse of Drugs Act 1981 (WA); s 10B Criminal Code Act Compilation Act 1913 (WA)).
However, grounds 1, 2 and 3 are otiose. The appellant was acquitted of count 1 (that is supplying the cannabis in the toolbox) and no alternative verdict was called for. Grounds 1, 2 and 3 must therefore be dismissed.

Grounds 4, 5 and 6

These grounds allege errors or omissions in comments made by the trial judge following her intervention to prevent the appellant giving evidence about what his girlfriend said at El Caballo Blanco and in the final directions to the jury. During the course of the comments made by the trial judge in the presence of the jury, she told counsel for the appellant that (ts 227):
We don't want to hear what she said to him. You can talk about anything that she did, but you can't lead evidence of what she said to him. You can call her to say what she wants to say but you can't lead his evidence of that. You know the rules, Mr Eyers.
The jury was then excluded while further submissions were made, but after it returned, the trial judge said to the jury (ts 231):
Under our law, at trial you cannot lead what is called hearsay. In other words, a person can't give evidence of what another person said to them. They can say, 'I spoke to them'. But they can't say what the person said. So I'm going to ask you to ignore any evidence that has been led. It's inadmissible. If there needs to be evidence of what that person said that person needs to come and give it.
The appellant seized on two aspects of these comments. The first was the trial judge's erroneous statement in effect that a person giving evidence could never give evidence about what a person said to them out of court. The appellant submitted that as a result of these comments the jury would then have discounted the appellant's evidence about what he was told by his girlfriend concerning the cannabis the subject of the second charge and that the appellant was deterred from freely giving such evidence. The second aspect concerned the trial judge's suggestion that the appellant 'call' the girlfriend to give evidence. The appellant complains that this suggested that the appellant was under some onus to call the girlfriend to give evidence. This aspect was then aggravated, according to the appellant, by a comment made in summing up at ts 439, which is set out above, in which the trial judge said that her task was to ensure that the trail was a fair trial and that the jury was to 'get the whole picture, not just partial truth' and that under the rules of a criminal trial:
If the State does not call a named witness, the State must make that witness available for the defence to call them.
and that:
Neither the State nor the defence called Sandy as a witness.
Finally, in connection with this second aspect, the appellant submits that the trial judge erred by failing to direct the jury that they should not speculate what evidence the girlfriend might have given had she been called.

The first aspect - whether the trial judge's comments deterred the appellant and influenced the jury

There is no merit in the first aspect. While it is true that her Honour erroneously informed the jury that evidence could not be given about what was said by the girlfriend out of court regarding the first charge, evidence was in fact given by the appellant about what the girlfriend said out of court concerning the cannabis the subject of the second charge. The appellant gave evidence that he knew nothing about the existence of the cardboard box and its cannabis contents (the subject of count 2) until a time during his trip back to Northam to collect the third trailer. He gave evidence that his girlfriend told him about the cardboard box and its cannabis contents and that by that means he acquired knowledge of the cannabis in the cardboard box. Not only was he permitted to give that evidence and was not deterred from doing so, but her Honour directed the jury to take into account the evidence he gave on the point. This direction

corrected the impression the jury might have had that evidence of what was said out of court was inadmissible.

The second aspect - the trial judge's suggestion that the appellant call the girlfriend as a witness

There is merit in the second aspect of the appellant's submission. By her comments and directions, the trial judge gave the jury the impression that the appellant was under some onus to call the girlfriend to give evidence and gave the impression that they would not know the 'whole picture' and be left with just 'partial truth' if the girlfriend Sandy was not called as a witness by the State or by 'the defence'. The implication that 'the defence' was under some onus to call the girlfriend was an error: Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285 [5], [25] and [52]. This was not one of the exceptional cases where comment could be made about the failure of the accused to call evidence: as to which see Weissensteiner v The Queen [1993] HCA 65; (1993) 178 CLR 217.
Further, in the circumstances, the trial judge should have instructed the jury not to speculate about what might have been said by Sandy had she been called: Dyers [5]. The omission constituted a miscarriage of justice. Grounds 4, 5 and 6 should be upheld.
The respondent did not seek to argue that the error and omission gave rise to no substantial miscarriage of justice. The consequence is that the conviction in relation to count 2 must be set aside. There should be an order that the appellant be retried on that count.
MAZZA J: I agree with Pullin JA.