RPS v The Queen

Case [2000] HCA 3

HIGH COURT OF AUSTRALIA

GAUDRON ACJ,
McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

RPS  APPELLANT

AND

THE QUEEN  RESPONDENT

RPS v The Queen [2000] HCA 3
3 February 2000
S116/1998

ORDER

  1. Appeal allowed.

  1. Set aside the order of the Court of Criminal Appeal of New South Wales made on 13 August 1997.

  1. In place thereof, order that the appeal against convictions to the Court of Criminal Appeal of New South Wales be allowed, the convictions quashed and that there be a new trial on counts 4, 6, 7 and 8 of the indictment.

On appeal from the Supreme Court of New South Wales

Representation:

A J Bellanto QC with B J Rigg for the appellant (instructed by Uther Webster & Evans)

M G Sexton SC, Solicitor-General for the State of New South Wales with A M Blackmore for the respondent (instructed by Solicitor for Public Prosecutions (New South Wales))

Notice:  This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

RPS v The Queen

Criminal law – Evidence – Silence of the accused – Directions to jury – Circumstances in which jury may take account of accused's failure to give evidence.

Criminal law – Judicial instructions – Instructions about reasoning towards guilt.

Courts and judicial system – Apprehension of judicial bias – Tension between trial judge and counsel at trial – Use of trial judge's report by appeal court.

Words and phrases – "right to silence".

Criminal Appeal Act 1912 (NSW), s 11.
Evidence Act 1995 (NSW), s 20.

  1. GAUDRON ACJ, GUMMOW, KIRBY AND HAYNE JJ.   The appellant was charged, in the District Court of New South Wales, with two counts alleging that he had had carnal knowledge[1] of his daughter and six counts alleging that he had had sexual intercourse[2] with her.  The offences were alleged to have occurred between various dates, the earliest of which was 6 February 1983 (when the complainant was four years old) and the latest of which was 31 July 1993 (by which time the complainant was 14 years old).  He pleaded not guilty.  The trial judge directed the jury to acquit the appellant of one of the charges of sexual intercourse; the jury returned verdicts of guilty to four of the remaining five counts of sexual intercourse and verdicts of not guilty to the other count of sexual intercourse and the counts of carnal knowledge.

    [1]Contrary to Crimes Act 1900 (NSW), s 67.

    [2]Contrary to Crimes Act, s 66A (sexual intercourse with a person under the age of 10 years) or s 66C(2) (sexual intercourse with a person of or above the age of 10 years and under the age of 16 years who is under the authority of the accused).

  2. The appellant appealed to the Court of Criminal Appeal of New South Wales against his convictions but that appeal, and his application for leave to appeal against sentence, were dismissed[3].  By special leave, he now appeals to this Court.

Continue reading RPS v The Queen

Sign in free to access the full text

Details
AGLC
RPS v The Queen [2000] HCA 3
Case
[2000] HCA 3
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an appeal from RPS against his convictions for sexual offences against his daughter. The appeal concerned two primary questions: whether the conduct of the trial judge, due to apprehended bias or otherwise, had denied the appellant a fair trial, and whether the judge's directions to the jury concerning the appellant's failure to give evidence contravened section 20(2) of the *Evidence Act 1995* (NSW).

The legal issues before the Court were whether the trial judge's frequent interruptions of defence counsel's cross-examination and specific directions given to the jury regarding the appellant's election not to give evidence amounted to a denial of a fair trial. The Court was required to determine the circumstances under which a jury may properly take into account an accused person's failure to give evidence, particularly in light of the *Evidence Act 1995* (NSW), and whether the judge's instructions in this instance were permissible.

The Court reasoned that while the trial judge's interventions did not, in themselves, deny the appellant a fair trial, the directions given to the jury concerning the appellant's failure to give evidence were erroneous. The judge had instructed the jury that they were entitled to consider the appellant's election not to contradict certain evidence as a circumstance that could lead them to more readily accept the Crown's evidence. The Court held that this direction was improper, particularly as the alleged admission was only partial and the appellant faced multiple charges, meaning he was entitled to rely on the prosecution's failure to prove its case beyond reasonable doubt without being compelled to give evidence and expose himself to cross-examination on all counts. The Court allowed the appeal, quashed the convictions, and ordered a new trial on specific counts.

Orders

Orders of the court

1.

Appeal allowed.

2.

Set aside the order of the Court of Criminal Appeal of New South Wales made on 13 August 1997.

3.

In place thereof, order that the appeal against convictions to the Court of Criminal Appeal of New South Wales be allowed, the convictions quashed and that there be a new trial on counts 4, 6, 7 and 8 of the indictment.

Background

Background to the litigation

In this appeal the Court has to decide two questions: whether the conduct of the trial judge, either as a result of apprehended bias or otherwise, denied the appellant a fair trial; and whether his Honour's directions offended against s 20(2) of the Evidence Act 1995 (NSW).Facts and Earlier Proceedings The appellant was charged in 1996 with eight counts (two of carnally knowing his daughter and six of sexual intercourse with her), over a period of 10 years, beginning in February 1983 when the complainant was four years old. Counts one to five involved penile penetration and counts six to eight involved digital penetration. Part of the Crown case in relation to counts six to eight was that the appellant made an admission in responding to accusations by the complainant's grandmother and mother. The accusations and responses were as follows:Grandmother: "Are you saying that you've never touched her with your hands or fondled her or put your penis inside her?" Appellant: "That's right." In the week after this exchange took place, there was a conversation between the appellant and the complainant's mother:Mother: "Can't you just admit what you've done, or are you really calling your daughter a liar?" Appellant: "I never had intercourse with her but everything else she said is true." Mother: "How long has it been going on?" Appellant: "Since she was about ten." In cross-examination the complainant agreed that the effect of her evidence was that the appellant had had sexual intercourse with her on hundreds of occasions, from the age of four years: she had never sought any medical treatment, and was never medically examined. She rejected a medical examination for forensic purposes when the police started to investigate her allegations. She made no complaint until after the event which led to the fourth count (which involved penile intercourse). There was evidence of a complaint to a school friend, and finally to her mother when she was 14 years old. At trial it was suggested by counsel for the appellant that the complainant may only have complained in the hope of obtaining money from the Victims Compensation Tribunal. The trial judge directed the jury regarding this supposed motivation as follows: "It has been suggested to you by the Crown that you will discount any suggestion that she was motivated by any desire for compensation. … She had no reason to ever make false allegations against him because he had been very generous to her". During the trial the trial judge on numerous occasions interrupted defence counsel's cross-examination. At the conclusion of the Crown case the trial judge directed a verdict of acquittal on the fifth count. Counsel for the appellant then announced that he was calling a social worker. In the presence of the jury, the trial judge said:"You must call your client before you can call any other witness. … That's what the law says. It is customary, and the accused must be called first." Counsel for the appellant informed his Honour that he wished to make some submissions in the absence of the jury. The trial judge arranged for the jury to leave the courtroom and counsel for the appellant told his Honour that the appellant would not be giving evidence. Some discussion then ensued about the judge's right to comment, under the recently enacted Evidence Act, upon the fact that there had been no denial by the appellant of what was said to be the partial admission made by the appellant to the complainant's mother. Counsel was afforded an opportunity to obtain further instructions from the appellant whether he wished to maintain his election not to give evidence. The instructions were that the appellant adhered to this position and the jury were then brought back into the courtroom.

Evidence

Evidence Before The Court

The fact that the trial judge thought it desirable to go into some detail about these matters in his report to the Court of Criminal Appeal does not lead to some different conclusion about the significance of what happened at trial. The report contemplated by s 11 of the Criminal Appeal Act[6] is not a document intended to give the trial judge some opportunity to defend his or her conduct of the trial[7]. The report provides, as the section says, an opportunity for the judge to state his or her "opinion upon the case, or upon any point arising in the case". In particular, it provides an opportunity for the trial judge to express a view upon matters that may not readily be apparent from the written record. But the fact that in this case the trial judge saw fit to comment adversely on the conduct of trial counsel when making a report to the Court of Criminal Appeal does not assist in deciding whether, in fact, the trial was conducted fairly. That depends upon what happened at trial, not upon what views the trial judge may have held (at or after the trial) about counsel's conduct. As we have said, however, the interventions made by the trial judge in this case did not deny the appellant a fair trial.[6]Cf, for example, Crimes Act 1958 (Vic), s 573; Criminal Practice Rules 1900 (Q), O IX r 15; Criminal Code (WA), s 696 and Criminal Practice Rules (WA), O XVI; Criminal Code (Tas), s 408(3); Criminal Code (NT), s 418.[7]Ahmet (1996) 86 A Crim R 316 at 323 per Winneke P; R v Paxton [1983] 1 VR 178.The appellant's election not to give evidence We turn then to deal with the central issue in the appeal: the judge's directions to the jury about the significance of the appellant's not having given evidence. In his charge to the jury on this aspect of the matter, the trial judge began by telling the jury that an accused person may, but is not obliged to, give evidence and that the prosecution bears the onus of proof. He said that the jury "must not conclude that [the appellant] has elected not to give evidence because he is guilty of the offences charged against him". He observed that there are many reasons why an accused person may not want to give evidence and told the jury that they "must not speculate as to why [the appellant] has not given evidence". No complaint is made (or could be made) about these parts of the trial judge's charge. They have long been accepted to be an important warning to the jury (in jurisdictions where judicial comment on the accused's failure to give evidence is permitted[8]) against adopting an impermissible chain of reasoning[9].[8]Cf Crimes Act 1958 (Vic), s 399(3); Evidence Act (NT), s 9(3).[9]See, for example, Petty v The Queen (1991) 173 CLR 95 at 99 per Mason CJ, Deane, Toohey and McHugh JJ; R v Bathurst [1968] 2 QB 99 at 107-108 per Lord Parker CJ. The appellant's complaint centres upon what the judge then said to the jury. It is as well to set it out in full, numbering the paragraphs that are quoted. The trial judge said:(1) "In the present case, however, the Crown asks you when judging the value of, the weight of, the evidence which has been put forward by the Crown as establishing its case against the accused, to take into account the accused's election not to deny or to contradict the matters about which he could have given direct evidence from his own personal knowledge. That is indeed a circumstance which you are entitled to consider in this case. That is, the fact that the accused has elected not to contradict the evidence given by [the complainant's mother] as to his alleged admission – if you construe it as such – and he has been content to rely upon that very brief statement in answer to the detailed allegations made by the complainant."(2) "You may think that it is only common sense that in a situation where a Crown witness and the accused are directly involved in a particular incident so that they are the two persons best able to give evidence of what happened in that incident, and where the evidence of the Crown witnesses is left undenied or uncontradicted by the accused any doubts which may otherwise have been cast upon the evidence of the Crown witnesses may be more readily discounted and the evidence of the Crown witnesses may more readily be accepted as the truth. That is the approach which the Crown asks you to adopt in this case, in particular with regard to the statement made by him to [the complainant's mother], according to her evidence, in which he denied sexual intercourse but said that everything else that [the complainant] had said was true."(3) "The accused, however, has met the complainant's allegations. He has not traversed the detail of them, but in his statement which he gave to the police (but not here by evidence) he has denied committing any of these offences. Clearly, it is upon that earlier denial that he now relies. If you are satisfied that the accused could have given evidence from his own knowledge of the events about which [the complainant's mother and the complainant] have given evidence for the Crown, if you are satisfied that it is reasonable, in the circumstances, to expect some denial or contradiction to be forthcoming from the accused if such a denial or contradiction is available, then you are entitled to conclude, you do not have to, but you are entitled to conclude, from the accused's election not to deny or contradict that evidence that his evidence would not have assisted him in this trial." (Emphasis added)(4) "You may use the election of the accused not to put forward any such denial or contradiction as a circumstance which leads you more readily to accept the evidence given by the witnesses for the Crown the accused was in a position to contradict of his own knowledge." (Emphasis added)(5) "Of course, there were a number of witnesses for the Crown and parts of the evidence which he was not in a position to contradict, things that did not take place in his presence or in which he was not engaged. But he certainly was in a position, you might think, to contradict what it was that [the complainant] said happened between him and her and also what it is [the complainant's mother] said had been said on that occasion in August of 1993 in the telephone conversation."(6) "You cannot however use that election by the accused not to put forward any denial or contradiction in order to fill in any gaps which you think may otherwise be in the evidence upon which the Crown relies. Its relevance relates only to the value or the weight which you can give to the evidence which the Crown witnesses have given. In other words, you may feel more confident in relying upon evidence which is uncontradicted than evidence which is. I do remind you that the accused has made in that statement to the police, (although not in evidence here in Court – he did not give evidence here in Court I should say) which amounts to a general denial of all offences."(7) "The absence of any evidence from the accused as to the circumstances and details of the incidents also means that there is no evidence to support the particular version which was put to the Crown witnesses in cross-examination by counsel for the accused. All that has been said by the accused is a flat general denial. That version, insofar as it was suggested to [the complainant] that these things had not been done or to [the complainant's mother] that what she said was said had not been said, was denied by each of them when the question was put and the accused has led no evidence to establish that it happened, that his version was correct."

Decision

Reasons for decision

GAUDRON ACJ, GUMMOW, KIRBY AND HAYNE JJ ACJ, GUMMOW, KIRBY AND HAYNE JJ HUGH J (dissent) CALLINAN J
Even if the evidence of the alleged partial admission were said to require the jury to infer what the appellant meant by his statement, this was not a case in which it was reasonable to expect some denial, explanation or answer by the accused about the alleged partial admission. It is essential to recall that the appellant was charged with eight counts and that there were, therefore, in effect eight different cases which he had to meet. The alleged admission was, at its highest, an admission to some only of the charges alleged against him. That being so, there was no basis for saying that the appellant should reasonably be expected to answer the part of the prosecution case which related to those counts by giving evidence. Once in the witness box the appellant would have been exposed to examination about all of the counts charged and the course which he took must be understood in that light. In particular, he was entitled to say in respect of any one of the charges that the proof by the prosecution was insufficient and, if that were so, no conclusion could safely be reached for his not giving evidence beyond the conclusion that he was content to rest on the need for the prosecution to prove, beyond reasonable doubt, each of the allegations it made.Conclusion It follows that the instructions given in pars (1), (2) and (4) of the impugned directions should not have been given. For the reasons stated earlier, the instructions given in par (3) should not have been given and, although it was right to say (as the trial judge did in par (6)) that the appellant's election not to give evidence could not fill any gaps in the prosecution case, it was wrong to say that his election could enable the jury to feel more confident in relying on the prosecution evidence. Finally, although it was factually accurate to say that the absence of evidence from the appellant meant that what was put in cross-examination of the prosecution witnesses was not supported, to give such a direction was, at least, unwise for it took its significance largely, if not entirely, from the other directions which we have said should not have been given.Judicial instructions in criminal trials Before parting with the case, it is as well to say something more general about the difficult task trial judges have in giving juries proper instructions. The fundamental task of a trial judge is, of course, to ensure a fair trial of the accused. That will require the judge to instruct the jury about so much of the law as they need to know in order to dispose of the issues in the case[39]. No doubt that will require instructions about the elements of the offence, the burden and standard of proof and the respective functions of judge and jury. Subject to any applicable statutory provisions it will require the judge to identify the issues in the case and to relate the law to those issues[40]. It will require the judge to put fairly before the jury the case which the accused makes. In some cases it will require the judge to warn the jury about how they should not reason or about particular care that must be shown before accepting certain kinds of evidence[41].[39]Alford v Magee (1952) 85 CLR 437 at 466 per Dixon, Williams, Webb, Fullagar and Kitto JJ.[40]Alford v Magee (1952) 85 CLR 437 at 466 per Dixon, Williams, Webb, Fullagar and Kitto JJ.[41]For example, Longman v The Queen (1989) 168 CLR 79; Domican v The Queen (1992) 173 CLR 555.

Ratio Decidendi

Legal Principle Established

Established by: GAUDRON ACJ, GUMMOW, KIRBY AND HAYNE JJ, ACJ, GUMMOW, KIRBY AND HAYNE JJ, CALLINAN J

Full text does not contain this section.