Rowbottom v The Queen - [2003] NTCCA 11

Rowbottom v The Queen [2003] NTCCA 11
PARTIES:BRETT ROWBOTTOM

v
THE QUEEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  APPEAL FROM THE SUPREME COURT exercising Territory jurisdiction
FILE NO:CA 9 of 2002 (20014261)
DELIVERED:  12 November 2003
HEARING DATES:  31 October 2003
JUDGMENT OF:  ANGEL ACJ, MILDREN J and PRIESTLEY AJ
CATCHWORDS:

REPRESENTATION:
Counsel:
Appellant:S Odgers SC
Respondent:  G Fisher
Solicitors:
Appellant:Dalrymple & Associates
Respondent:  Commonwealth Director of Public Prosecutions
Judgment category classification:        A
Judgment ID Number:  pri0301
Number of pages:  26

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Rowbottom v The Queen [2003] NTCCA 11
No. CA9 of 2002 (2014261)

BETWEEN:
BRETT ROWBOTTOM

Appellant
AND:
THE QUEEN

Respondent

CORAM: ANGEL ACJ, MILDREN J and PRIESTLEY AJ
REASONS FOR JUDGMENT
(Delivered 12 November 2003)
THE COURT
Introduction

On Monday 29 April 2002 a jury found Mr B Rowbottom guilty of being knowingly concerned in the importation into Australia of not less than a trafficable quantity of heroin, contrary to s 233B(1)(d) of the Customs Act. He was convicted of the offence and sentenced to imprisonment for seven years. A non-parole period of four and a half years was fixed. The sentence and non-parole period were backdated to 1 April 2002 to take account of time spent in custody. He then commenced appeal proceedings.
Although in the early stages of the appeal proceedings the appellant indicated that he would seek to rely on two grounds of appeal against conviction and one ground against sentence, when the matter came on for hearing before this Court, only one ground of appeal was pursued, being the second ground of appeal against conviction.
This ground of appeal referred to a sentence in the trial judge's summing up to the jury, which it was said contravened the principle upon which the High Court acted in Robinson v The Queen (1991) 180 CLR 531 (Robinson). It was submitted that the alleged contravention had caused a miscarriage of justice necessitating the setting aside of the jury's verdict, the conviction and the sentence.
The words upon which attention was focused were:
“...in considering what weight if any to give that statement [a document handwritten by the appellant] you will bear in mind your own commonsense and experience of life that people often try to make excuses for what they have done in order to avoid or diminish blame for what they have done.”
The questions in the appeal thus became whether the foregoing direction contravened the High Court's ruling in Robinson, and if so, whether, in the circumstances of the case, that had caused a miscarriage of justice. The argument for the appellant also raised the question of the basis and extent of the High Court's ruling in Robinson.
Before turning to those questions it is necessary to summarise the facts which emerged in the appellant's trial relevant to the questions in the appeal proceedings.
Summary of Relevant Facts
On 27 July 2000, the appellant flew to Thailand from Darwin in company with Janet Pierce (Pierce) and Marc Gooch (Gooch). On 14 August 2000 the three left Bangkok to return to Darwin. Pierce travelled by a Qantas flight which arrived in Darwin at about 4:20 am on 15 August 2000. The appellant and Gooch travelled by Malaysian Airlines and arrived in Darwin at about 6:10 am the same morning.
When Pierce arrived her baggage was searched and a false bottom found in her suitcase, within which was a package containing heroin valued at between $132,894 and $236,250. She made admissions and was arrested by members of the Australian Federal Police. When Gooch and the appellant arrived they were questioned about the heroin in Pierce's possession. Gooch made admissions and was arrested. The appellant denied any knowledge of the heroin. Later that morning, after receiving legal advice, he declined to take part in a recorded interview and was allowed to leave.
Upon examination of Pierce's suitcase and the package of heroin, the appellant's left thumbprint was found on the sheet of hard plastic forming the false bottom in the suitcase and a fingerprint from the appellant's left little finger was found on the package.
On 23 August 2000 the appellant was arrested at Alice Springs. When arrested, he produced to the arresting officers a spiral notepad containing 10 pages of handwritten notes.
At his trial, a copy of the pages from the notepad, with a small part excised at the request of the appellant's counsel, was tendered as part of the prosecution case. The pages comprised a statement beginning with a reference to the charging of Pierce and Gooch with the importing of heroin and to the appellant's having "known them as close personal friends for many years". The statement then detailed the history of the appellant's friendship with Pierce and Gooch and the course of his trip with them to and in Thailand. According to his statement, the purpose of the trip was to investigate the prospects of starting a small business in Thailand. His statement gave an account of the various places where he and his friends had stayed and of what they had done together, and of what he had done when he was not with them. His statement is completely consistent with his stated purpose for going on the trip, and contains no mention of his at any time having had anything to do with drugs, or the preparation of a suitcase with a false bottom, or a package of heroin, nor of his having at any time seen either of his friends having anything to do with any such activities. The only direct references to drugs are the mention at the commencement of the statement of the fact that Pierce and Gooch had been charged and two later paragraphs from different parts of the body of his statement, which said:
"I must point out that at no stage during my stay in Chiangmai [a town at which they stayed] did I see my friends meet or talk with any persons, other than to organise travel and the like with the relevant Thai peoples. I also must state, that on occasion I entered my friends room to discuss the days or nights activities, and or travel etc, or while my room was being cleaned, I never saw any drug inducing implements or any drug use."
And again, a couple of pages later:
"I must state here, that at no time did I see my friends speak nor meet with any persons, other than those necessary for travel and their business partners. On occasion that I entered their hotel room, I did not see any drug inducing implements or drug usage."
So far as he himself was concerned, his statement did not explicitly deny any drug activities, but by accounting for the whole of his time in Thailand without any reference to any such activities, and by denial of having seen his friends engaged in any such activities, it excluded the possibility of his having taken any part in such activities.
Other evidence at his trial included proof of the importation of the heroin by Pierce and Gooch and of the appellant's having been with them throughout their trip from Darwin to Thailand and back, and of the finding of the two fingerprints already mentioned.
The appellant's statement had a twofold effect. First, it showed close association between himself and Pierce and Gooch throughout the trip, and second, by the absence from the appellant's account of any reference to purchase by him of drugs, or steps taken by him to import them to Australia, and by his denial of having seen his friends ever engaged in any such activity, it provided evidence, in a negative way, that he himself had had nothing to do with the importation of the heroin by Pierce and Gooch.
Robinson v The Queen (1991) 180 CLR 531 (Robinson)
The judgement in Robinson was published on 1 October 1991. Robinson, the appellant, had been convicted of rape. At the trial he had given evidence that the complainant had consented to sexual intercourse.
The reasons of the High Court were given jointly by Mason CJ, Brennan, Deane, Toohey and McHugh JJ. The reasons first described the cases made at the trial by the Crown and the accused, and then moved on to the summing up by the trial judge. We think the simplest way of trying to explain our understanding of the basis of the High Court's ruling, is by setting out what they said about the summing up, adding emphasis at critical parts, and at the most critical part, double emphasis, and by interspersing some comments, as follows:
“Early in his summing up, the trial judge instructed the jury that there were a number of ways in which they could test the credibility of a witness. After referring to two ‘tests’, his Honour said:
‘Still on the subject of witnesses, you might think that some of them have an interest in the outcome of this case. Indeed you might think that one witness above all others has a greater interest than all the others in the outcome of the case. You might say, “Well, this witness has a particular interest in the outcome of his case. We should look at his or her evidence closely, more closely than perhaps we would look at others.’ That is a matter you have to bear in mind when scrutinising a particular witness's evidence.’
Towards the end of the summing up, his Honour repeated his direction concerning credibility. He said:
‘Another test was what interest does a witness have in the outcome of a case? If you thought a witness had a large interest in the outcome you, as the judges of the facts, might well conclude that you should scrutinise that witness's evidence closely. You might think - it is a matter solely for you - that the accused had the greatest interest of all the witnesses you saw and heard and that, therefore, you should scrutinise his evidence closely.’
Counsel who then appeared for the appellant did not ask the learned judge to withdraw either of these directions. Indeed, counsel seems to have accepted that the directions were properly put to the jury. The chief concern of counsel in respect of the directions was that the jury should understand that the complainant also had an interest in the outcome of the case. He said:
“I am asking your Honour to direct the jury that the complainant also has an interest in the outcome of the proceedings in that she has given evidence on oath about an episode and she has made a complaint to the police and consequently she would like to see that successfully prosecuted”.
As the result of this request, his Honour redirected the jury as follows:
“On Friday I told you in effect that one of the tests you apply in considering a witness was the interest a witness had in the outcome of the case, and I think I suggested to you this morning you might well conclude that the accused has the greatest interest of all the witnesses. I think I also said that you might think that the greater the interest the more carefully you should scrutinise a witness's evidence. You might well conclude, it is a matter for you, that the complainant also has an interest in the outcome of this case. I didn't intend to lead you to believe that you apply only the interest in the outcome of the case test to the accused only. You apply it to all the witnesses if you believe that test is applicable.”
Shortly after giving the first of these directions, the learned trial judge instructed the jury as to the criminal onus and standard of proof in a way which was unexceptionable. Indeed, he told the jury that they could:
“disbelieve the accused and his witnesses in every word they utter from the witness-box and it would not follow that therefore he is guilty and the Crown has proved the case against him. That onus of proving his guilt is still with the Crown.”
Furthermore, at the end of his summing up, his Honour reminded the jury that:
“the onus of proof of the accused man's guilt is at all times with the Crown; that onus is to be to the standard of proof beyond reasonable doubt; though the accused went into the witness-box and called evidence in his defence he did not undertake any burden to disprove his guilt. Remember, from start to finish the onus of proof is always with the Crown, there is no onus on the accused.”
Notwithstanding the correctness of his Honour's directions concerning the onus and standard of proof, however, it is impossible to escape the conclusion that the fairness of the trial was seriously impaired by the effect of his directions concerning the interest of a witness in the outcome of the case. The jury could hardly escape the conclusion that the appellant had “the greatest interest of all the witnesses” in the outcome of the case. Indeed, his Honour had suggested to the jury that they might think that the appellant had a greater interest than any other witness in the outcome of the case. If the jury accepted that suggestion, as they almost certainly would have, his Honour's directions had the effect that the evidence of the appellant had to be scrutinised more carefully than the evidence of any other witness, including the complainant, for no reason other than that he was the accused. The unfairness of such a direction is manifest, particularly when the outcome of the trial inevitably turned upon the jury's preference for the evidence of the complainant against that of the accused. Moreover, the directions virtually had the effect that the appellant was to be treated as a “suspect witness” in the same way as an accomplice, a complainant in a sexual case and a young child have been treated as “suspect witnesses”, that is, as witnesses whose evidence is to be accepted only after the most careful scrutiny (9). See Reg v Hester (1973) AC 296, at pp 324-325; Longman v. The Queen (1989) 168 CLR 79 at pp 85, 104-105. An express direction which had the effect of his Honour's directions would have been a clear misdirection, as Mr Butler, counsel for the Crown, readily accepted. Furthermore, his Honour's directions on the point do not sit well with the presumption of innocence which is the consequence of a plea of not guilty. If that presumption is to have any real effect in a criminal trial, the jury must act on the basis that the accused is presumed innocent of the acts which are the subject of the indictment until they are satisfied beyond reasonable doubt that he or she is guilty of those acts. To hold that, despite the plea of not guilty, any evidence of the accused denying those acts is to be the subject of close scrutiny because of his or her interest in the outcome of the case is to undermine the benefit which that presumption gives to an accused person.”
We think that the words we have doubly emphasised above state the basic idea upon which the decision was based. It seems to us that at this stage of their reasons, the High Court had made it clear that it is wrong to direct the jury at a criminal trial, expressly or by implication, that the evidence of the accused person should be looked at more closely or more sceptically than any other evidence, simply because it is evidence of the accused.
Importantly, the High Court's reasons immediately went on to make it clear that the evidence of an accused is to be considered and may be analysed and criticised in the same way as evidence from any other source. On this, they said:
"Nothing in the above is intended to suggest that the evidence of an accused person is not subject to the tests which are generally applicable to witnesses in a criminal trial. Thus, in examining the evidence of a witness in a criminal trial - including the evidence of the accused - the jury is entitled to consider whether some particular interest or purpose of the witness will be served or promoted in giving evidence in the proceedings."
Having made that clear, the High Court's reasons returned to their main point:
"But to direct a jury that they should evaluate evidence on the basis of the interest of witnesses in the outcome of the case is to strike at the notion of a fair trial for an accused person. Except in the most exceptional case, such a direction inevitably disadvantages the evidence of the accused when it is in conflict with the evidence for the Crown."
We understand the last sentence is reflecting what the court had earlier said and should be read as meaning that the criticised direction inevitably disadvantages the evidence of the accused when in conflict with the Crown evidence for no other reason than that it is the evidence of the accused. The court had made it clear in the second last paragraph set out above that the accused's evidence could be criticised for any of the usual reasons for which evidence may be criticised. The unfairness the court saw in the criticised directions was that they encouraged the jury to consider the accused's evidence critically on an extra basis , not applicable to other evidence, for no other reason than that it was evidence of the accused.
The High Court's reasons then concluded:
"It follows that, if, as we think was the case, the jury would have understood his Honour's directions as meaning that the evidence of the appellant had to be scrutinised more carefully than that of any other witness" [we interpolate here, for no other reason than that it was the evidence of the accused] "there was a serious misdirection in the summing up which went to the fairness of the trial of the appellant and which undermined the presumption of innocence. Despite the lack of any objection to the directions at the trial and the failure to make the directions the subject of the a discrete ground of appeal in the Court of Criminal Appeal, the conviction must be quashed. A conviction based on such directions is simply too unsatisfactory to be allowed to stand. The appeal should be allowed. The conviction should be quashed and a new trial ordered.”
The decision in Robinson was apparently seen by some trial judges and intermediate appellate courts as contrary to previously accepted practice (see the discussion in “Directions on the Accused's Interest in the Outcome of the Trial” by J Gans (1999) 21 Criminal Law Journal 273), and there was some resistance to it. The High Court had however quickly reaffirmed its position, in Stafford v The Queen (1993) 67 ALJR 510. In this case, special leave to appeal from the Supreme Court of Queensland (Court of Appeal) was refused by Deane, Dawson and Toohey JJ. The reasons were given by Deane J, as follows:
"It follows from the decision of this Court in Robinson v The Queen, that a trial judge should not direct the jury that the ‘interest’ of an accused in the outcome of his or her trial is a ‘factor’ to be taken into account in assessing his or her evidence. Nor should a trial judge direct the jury to the effect that, in assessing the evidence of all the witnesses, they should take account of their relative interests in the outcome. Any direction which directly or indirectly requires or invites an assessment of the reliability of the evidence of the accused or the relative reliability of the evidence of the accused and other witnesses by reference to interest or lack of interest in the outcome of the trial is likely to be understood by the jury as a direction or invitation to discount the evidence of the accused who will inevitably be seen as having a greater interest in the outcome of the trial than any other witness. That is what the decision in Robinson was directed against.
Ordinarily , and notwithstanding what is said by the Court of Appeal of Queensland in this case about an ‘admission of impotence’, it is preferable that a trial judge refrains from directing attention to the interest of the accused in the outcome of the trial as a relevant factor in assessing the reliability of his or her evidence. If the circumstances of a particular case are exceptional and require some reference to the accused's interest in the outcome as a matter of fairness to the accused, it should suffice to inform the jury that they must approach the case on the basis that the accused is presumed innocent of the acts which are the subject of the indictment and that it would be wrong and unfair for the jury to discount the evidence of the accused simply for the reason that, as the accused, he or she has a particular interest in the outcome of the trial.
Viewed in isolation, the remarks of the learned trial judge about the ‘interest’ of the applicant and other witnesses in the present case would seem to be in conflict with what we have said above. However, the Court of Appeal concluded that, in the special circumstances of the case, those remarks were favorable to the applicant. The members of the Court of Appeal saw the case as: ‘an example of a particularly strong Crown case followed by the accused giving evidence in which he could not account for the particular facts adduced against him, in which he made a number of contradictory statements and in which he simply denied having done what was alleged. It is a good example of a case where there is a risk, whether the trial judge approaches the subject of interest or not, of a jury summarily rejecting the accused's evidence on the basis of his interest.’
In that context, their Honours concluded that the trial judge's remarks were ‘the means by which his Honour and tempted to redress what he perceived to be an imbalance, or to eliminate the risk of a facile rejection of the accused's denial’. Their Honours added that, on analysis, the applicant's evidence came down to ‘little more’ than a denial.
Ultimately, the central question on any appeal in this case would be whether the Court of Appeal's assessment of the overall effect of the trial judge's remarks was mistaken. If it was not and those remarks were, in the particular circumstances, favorable to the applicant, it is apparent that there was no miscarriage of justice. In circumstances where the trial took place almost six months after this Court's judgment in Robinson was delivered and where no objection was taken or redirection requested by counsel in respect of the relevant remarks, it is difficult to see how this Court could be justified in granting special leave to appeal so that it could re-examine the question whether, understood in the particular circumstances of the case, and in the context of the whole summing up, the direction was, on balance, favorable to the applicant. Be that as it may, it does not appear twice that the Court of Appeal erred in reaching the conclusion that it did.”

Although, in the absence of anything like a sufficient text of the trial judge's challenged directions or of the reasons of the Queensland Court of Appeal, the reasons given above, are, to mortal observers, on the Delphic side, they nevertheless have the virtue of being definite in that they make it clear that the High Court expects what it said in Robinson to be observed by lower courts.
In the following year, again in dismissing an application for special leave (Ramey v The Queen (1994) 68 ALJR 917), the High Court (Brennan, Dawson and McHugh JJ) was, per Brennan J, even more emphatic:
“There can, and should, be no mistake as to the application of the principle laid down by this Court in Robinson. It is not to be eroded by Courts of Criminal Appeal nor, a fortiori, by trial judges by failing faithfully to apply the prohibition against the giving of a direction to evaluate the evidence of an accused on the basis of the accused's interest in the outcome of the case. That said, having examined the terms of the summing up challenged in this case, we do not think that the judge's language raises the problem with sufficient clarity to make it a suitable vehicle for reaffirming the rigour of the principle established by the judgment in Robinson. Accordingly special leave will be refused.”
Again, in the absence of any indication of the trial judge's language in his summing up, the High Court's pronouncement was a touch Delphic, but unmistakable in its wish to make known “the rigour of the principle established...in Robinson...” Also, consistently with our understanding of Robinson, we note that we understand that the words in the second sentence in the above citation, "... on the basis of the accused's interest in the outcome of the case" , are another way of saying "by reference only to the fact that that person is the accused."
An interesting indication of the significance the High Court attached to Robinson is that the report of the case was published in Volume 180 of the Commonwealth Law Reports. This volume, published in 1994, included a Foreword by Sir Anthony Mason, then Chief Justice of the High Court, in which he said that the volume brought together 30 cases whose "significance was not initially appreciated by their audience". He continued:
“The Law Book Company has now seen fit to emphasise the importance of these cases by reporting them in a series of authorised reports. Belated recognition in the authorised reports can only add to their lustre."
Notwithstanding the High Court's efforts, by the time Mr Gans published his earlier mentioned article in 1999, he was able to record decisions of lower courts which he thought showed either grudging acceptance of, or sometimes outright efforts to avoid, the rigour of Robinson. Mr Gans regarded the High Court decisions as setting a strict standard and said that "... the present practice of some State courts falls short of this strict standard" (at 275). He discussed differing approaches in different jurisdictions, and different understandings of the precise basis of Robinson expressed by various judges.
We have taken the different ideas identified by Mr Gans into consideration, but do not think it useful to go over them here. No view accepted as authoritative seems to have emerged, even since Mr Gans's article, nor, so far as we are aware, has the question been looked at again by the High Court since Ramy (1994).
In these circumstances, the basic source of authority must remain Robinson itself and we have already indicated our own view of the proposition on which the case is based. There are also two other approaches to the subject which we think cast some light upon it and upon the questions in the present case.
Help from standard directions
The first of the two approaches is to consider some of the standard directions given to juries, hallowed by time and universally accepted in Australian jurisdictions, about how they should go about their task of considering what verdict they should bring in a criminal trial. Directions given by the trial judge in the present case are typical. We reproduce passages from them below, with the parts in bold which are particularly relevant for present purposes.
At an early stage of his summing up, the trial judge said:
".......... You may remember at the beginning of the trial I told you that my function was to deal with questions of law; that is, I act as a sort of umpire or referee. I decide questions of law and rule on admissibility of evidence and questions of that nature. And it is also my function to instruct you in the relevant law.
On the other hand, decisions about the facts are entirely in your hands. You have been brought here, no doubt at various degrees of personal inconvenience, to use your combined commonsense and experience of life to decide whether the accused is guilty or not guilty.
It is for you to decide who you believe and what you believe and what inferences you should draw....... Your responsibility as judges of the facts - and you are judges every bit as much as me in this case - your responsibility as judges of the facts is a heavy one. It is not something to be undertaken lightly or capriciously . It is a serious business and you should approach it in that way and act both seriously, and indeed, courageously.
I have mentioned this before, but if you have heard anything or read anything about this case outside this courtroom it is your duty to banish it from your minds. You must decide whether the accused is or is not guilty solely from the evidence that you have heard in this courtroom during the trial. In approaching your verdict you must act impartially.
So do not please be prejudiced by the fact that this case involves heroin. A lot of people have strong feelings about heroin and hard drugs, but you must not let that cloud your mind. You have to decide the case only on the basis of the evidence that you have heard in this courtroom.
So as I say, you must banish from your mind all prejudices and preconceived notions and decide the accused’ guilt or otherwise without fear and without favour and without prejudice of any kind. You heard both counsel, Mr Fisher [counsel for the prosecution] and Mr Tippett [counsel for the accused], express certain views about the evidence. During my remarks, I may consciously or even unconsciously, express opinions about the evidence.
But I do wish to emphasise that you are in no way bound by any opinion, regardless of who expresses it, as far as the facts are concerned, as I say, the facts are entirely a matter for you. So, if I do make any comment, the evidence upon which I comment, may have left in your minds, a very different impression from that, that it has left in mine.
You are the judges of the facts, I am not. Mr Fisher is not and Mr Tippett is not, so what I say in my summing up, hopefully is designed to assist you in reaching your verdict. It is not designed to take over your function and your responsibility. So if I stress in the summing up, matters which you think on due consideration are unimportant, then you should go on thinking that they are unimportant. And if I leave out material that you think is important, then you should go on thinking that it is important.
So, it is your duty to exercise, say an independence of judgment, in weighing my comments as you are entitled to exercise in weighing the evidence you have heard and the addresses of counsel. If after due consideration, you take a different view or a contrary view, then you are not only entitled, but you are obliged to stick to your view of the facts.
So, it is your duty to place your own interpretation upon the evidence and it is your duty to weigh the evidence and come to your own conclusions about who you believe and what you believe.
So it is important to not judge witnesses in isolation. Keep in mind their evidence of against the background of all the evidence in the case. You should also take into account that we are concerned here with events of August 2000. That is about 20 months ago. It is important to keep in mind that witnesses may have lapses on matters of detail due to passage of time. Memories fade and so on and so keep that in mind when you are considering the evidence.
I have mentioned this before but it is worth repeating again that it is a cardinal principle of our criminal law that a person is presumed to be innocent. Simply put that means that an accused is presumed innocent until the Crown has established to you their guilt beyond a reasonable doubt. That presumption of innocence remains with the accused from the beginning of the case until the end and the presumption only ceases to apply if having considered all the evidence you are satisfied that the accused is guilty beyond reasonable doubt.
I come back to the point though that you must be satisfied that the inference of guilt is the only reasonable and rational inference which can be drawn against an accused in all the circumstances. If there is any reasonable hypothesis consistent with innocence then it is your duty to acquit the accused.
In the present case, the Crown seeks to persuade you to draw an inference of guilt from all of the evidence in this case. There is in this case, direct evidence, a trafficable quantity of heroin was imported into Australia by Ms Pierce. There is direct evidence that the accused’s fingerprints were found on the package of drugs and on the false bottom of Pierce’s suitcase.
There is direct evidence of the accused accompanying Gooch and Pierce to Thailand and travelling with them to Chiang Mai, Bangkok and Phuket. There is no direct evidence that the accused was knowingly concerned in the importation of the heroin, but the Crown submits, that you should draw such an inference from the direct evidence, as the only reasonable and rational conclusion in all the circumstances.
I remind you of what I said earlier during the trial, that you must not draw any adverse inference from the fact that the accused declined to participate in a record of interview. None of us are under any obligation to speak to policemen and indeed, the police are under an obligation to advise everyone of the right not to answer their questions.”
After completing the greater part of his summing up, the trial judge adjourned briefly. On returning, he continued, and soon came to the part which gave rise to the ground of appeal we are now considering (we have added numbers to some paragraphs to make it easier to refer to them later):
"... the only part of the evidence I have not dealt with is the handwritten statement given to the police by the accused. You will have available to you a copy of that statement it is an exhibit, exhibit P21.
(1.)The accused handwritten statement is just like any other piece of evidence in this trial, what weight you give it is entirely a matter for you. I will briefly refer to its content shortly. But you will appreciate that what the accused has written in his statement is on its face at least exculpatory. He claims to know nothing of any drug importation by Gooch and Pierce.
(2.)In considering the accused statements I do suggest you keep in mind a number of matters, firstly you do not necessarily have to give the same weight to everything the accused said in his statement. You may do so.
(3.)But you are not bound to. Secondly, in considering what weight if any to give that statement you will bear in mind your own common sense and experience of life that people often try to make excuses for what they have done in order to avoid or diminish blame for what they have done.
(4.)Thirdly, you should, when evaluating what the accused said in his statement, have regard to all the rest of the evidence in the case.
(5.)If you think that what the accused said happened in the statement is in the light of all that other evidence reasonably possible then you ought to approach the case on the basis that that reasonable possibility has not been excluded by the prosecution and give the accused the benefit of any reasonable doubt if what he says is consistent with his innocence."
The trial judge then spent some time summarising the arguments that had been put for the prosecution on the one hand and the accused on the other, and in bringing his directions to the jury to an end, gave the following directions, among others:
"Well it is a matter for you ladies and gentlemen at the end of the day the question is whether the evidence as to the accused fingerprints considered in the light of all the other evidence in the case satisfies you beyond reasonable doubt that the accused was knowingly concerned in the importation of heroin.
In essence the Crown has sought to persuade you that the only reasonable and rational inference in all the circumstances is that the accused not only knew about the importation but was knowingly concerned in that importation.
The defence submits that there are just too many possible innocent explanations as to how the accused fingerprints came to be on the drug packaging and the false bottom of the case.
In considering the case please do rely on your common sense your experience of life as men and women of the world that is precisely why we have juries so that an accused can be tried by the combined wisdom of 12 of his fellow citizens rather than be judged by lawyers.”
The parts of the summing up which we have extracted above correctly show a very heavy emphasis on two things which are basic to the system of jury trial.
First, it is for the jury to decide the facts of a case and to draw permissible factual inferences from their primary findings of fact. Where the evidence before the jury raises issues of disputed fact, it is for the jury to decide those disputed issues.
Second, and of at least equal importance, as well as being of primary importance in the present case, the facts upon which the jury come to their verdict must all be facts appearing from or properly inferred from the evidence that has been put before the jury. Prejudice of any kind is to be put aside, and the case decided only on the evidence before the jury. This is an aspect of the presumption of innocence.
To return to the words which we doubly emphasised in the citations from Robinson earlier, it seems to us that to scrutinise the evidence of the accused more carefully than that of any other witness "for no reason other than that he was the accused" is an obvious form of prejudice at a stage when a jury is still considering the question whether the evidence before them has left them persuaded beyond reasonable doubt of the accused's guilt.
Putting it another way, until the time has come when the jury have reached their verdict, the question for them is whether it has been proved beyond reasonable doubt that the accused was rightly accused. To consider the evidence of the accused before that time in a more harshly critical way than other evidence before the jury, is a clear example of prejudice in its most literal sense and contrary to the presumption of innocence.
An analogous situation in England
The second of the two approaches which we mentioned in par 28 as casting some light on the questions in the present case is one which was adjudicated on by the House of Lords in 1987 in R v Sharp [1988] 1 WLR 7. The leading opinion was given by Lord Havers. The question concerned the directions to be given to juries about statements made out-of-court by accused persons. This question is a narrower one than that dealt with somewhat later in Robinson. Robinson was concerned with any kind of evidence of an accused in or out-of-court, sworn or unsworn, oral or written. Sharp was confined to out-of-court statements by accused persons tendered by the prosecution.
The question dealt with in Sharp had caused a division in England. Lord Havers explained it in this way. Exculpatory statements made by an accused out of court were not admissible in evidence, because of the hearsay rule. Inculpatory statements were admissible, as an exception to the hearsay rule. Some statements were mixed, containing both exculpatory and inculpatory matter. Different views had arisen about the status to be attached to the exculpatory part of a mixed statement.
One view, which Lord Havers called the "purist" approach was that because an exculpatory statement was never evidence of the facts it related, "the jury should be directed that the excuse or explanation is only admitted to show the context in which the admission was made and they must not regard the excuse or explanation as evidence of its truth." (at 12).
The other view (adopted by the House of Lords) was "that the whole statement should be left to the jury as evidence of the facts but that attention should be drawn, when appropriate, to the different weight they might think it right to attach to the admission as opposed to the explanation or excuses". (at 12).
In holding that the latter view was the preferable one, Lord Havers briefly reviewed the competing cases. Two of the earlier ones supporting the preferable view are of interest in the present case.
In summing up to a jury in 1829, Parke J said:
"Now, what a prisoner says is not evidence, unless the prosecutor chooses to make it so, by using it as a part of his case against prisoner; however, if the prosecutor makes a prisoner's declaration evidence, it then becomes evidence for the prisoner, as well as against him; but still, like all evidence given in any case, it is for you to say whether you believe it." (R v Higgins (1829) 3 C&P 603, 172 ER 565).
This is precisely in line with what you would expect after reading Robinson in the way which we have done. Once tendered, the evidence of the accused is like any other evidence, to be considered by the jury in the usual way, without any extra criticism being attached to it simply because it comes from the accused.
Similarly, in 1830, Littledale J, in a case in which the accused had admitted he was present at the murder which took place in his barn but also said it had been committed by another person and that he the accused had taken no part in it , told the jury that the statement was to be:
"taken altogether, and it is evidence for the prisoner as well as against him; but still the Jury may, if they think proper, believe one part of it and disbelieve another" (R v Clewes (1830) 4 C&P 221, 172 ER 678).
Here, we make the same comment as we did in regard to Higgins.
In R v Sharp, the House of Lords explicitly adopted as correct what had been said by Lord Lane CJ on the question in R v Duncan (1981) 73 Cr App R 359 at 365, as follows:
"Where a "mixed" statement is under consideration by the jury in a case where the defendant has not given evidence, it seems to us that the simplest, and, therefore, the method most likely to produce a just result, is for the jury to be told that the whole statement, both the incriminating parts and the excuses or explanations, must be considered by them in deciding whether truth lies. It is, to say the least, not helpful to try to explain to the jury that the exculpatory parts of the statement are something less than evidence of the facts they state. Equally, where appropriate, as it usually will be, the judge may, and should, point out that the incriminating parts are likely to be true (otherwise why say them?), whereas the excuses do not have the same weight. Nor is there any reason why, again where appropriate, the judge should not comment in relation to the exculpatory remarks upon the election of the accused not to give evidence."
It is not necessary for purposes of the present case for us to consider the appropriateness in this jurisdiction of the final sentence in this citation from Lord Lane, and we leave it out of account in commenting on the passage.
We think the passage can be read consistently with Robinson. The comments which are said to be allowable about the inculpatory and exculpatory parts of the statement do not, in our opinion, derive from the fact that the statement is that of the accused. They derive from the mixed nature of the statement itself. Such a statement is, in the language of formal pleading, in the nature of a confession and avoidance. From the point of view of an accused, the statement supplies evidence both for and against him or her who made it. The permitted comment upon such a mixed statement is that the evidence it supplies in favour of its maker (the excuse or excuses) may, if the jury think appropriate in light of the evidence, be given less weight than the admissions. This seems to us to be a general comment based on human nature in making such statements, and not based on the fact that the statement has come from the accused. It is based on the fact that a statement against interest has been made, along with a statement having the effect of denying or reducing the statement against interest. That situation alone justifies the comment as articulated by Lord Lane. The same situation can arise in regard to the evidence of any witness. In short, it is the nature of the statement, not the identity of its maker, which gives rise to the comment.
Summary, Robinson and the two other approaches

We are of the view that Robinson is based on the proposition that a jury should not be directed that the evidence of an accused is to be treated in any way differently from any other evidence, because of the fact alone that it is the evidence of the accused.
We also think that the traditional directions to juries that they should decide the questions before them without prejudice and solely on the evidence before them are based on a general proposition of which the ruling in Robinson is a particular example.
The two English cases from the 19th century illustrate what in our view are appropriate directions regarding mixed statements by accused persons. The direction by Lord Lane, approved and authorised by the House of Lords in R v Sharp illustrates the kind of comment which can be made in criticism of the statement of an accused, without transgressing the proposition on which Robinson is based.
Application of the rules to the direction challenged in the present case
We set out in paragraph [31] above, numbered (1) to (5), that part of the trial judge's directions which contained the particular direction, no. (3), challenged in this case. Looking at those directions now in light of our discussion leading up to this point, we note that all except the challenged no. (3) are unexceptionable. So are the other directions which we have earlier set out from the summing up. We note also, in regard to direction no. (2), that although he did not do so, it was open to the trial judge to add a direction of the kind discussed in Massie v The Queen (1993) 117 FLR 104, to the effect that the evidence in the accused’s statement had not been given on oath and had not been the subject of cross-examination and that they could take these matters into account also in assessing the weight of the evidence.
In regard to no. (3), it is apparent that the word "excuses" is taken from Lord Lane's formulation, or some formulation related to it. If the word “admitted" had been used instead of "done" in the third and fourth lines, then we would think that the direction clearly fitted within the class of Lord Lane's admission/excuse direction, which in our view would not be in breach of the proposition on which Robinson is founded.
The use of the word "done" may bring about some difference in meaning providing a basis for the appellant's argument that direction no. (3) is an indirect reference, not to the fact about which comment can be made, that people generally are likely to embellish excuses for admissions they have made, but to the fact that the statement in question was made by the accused and that he as an accused was trying to make excuses for what he had done.
If this argument were correct, then there might be a basis for thinking that the direction was in breach of the proposition of which Robinson was based. However, on reading the challenged direction in the context of the entire summing up, and notwithstanding that it was formulated slightly less clearly than the direction authorised by the House of Lords in Sharp, we do not think it would have been understood by the jury in the sense relied upon by the appellant. Rather, we think it would have been understood as a comment directed to the nature of the statement itself, and the tendency of persons generally in making such statements, not to the fact that it was a statement by the accused and to be regarded more critically, because of that fact alone, than other evidence before the jury.
We are of the opinion that the appeal should be dismissed.
Order accordingly.

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