Weissensteiner v The Queen

[1993] HCATrans 146

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~ -... ~·~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B13 of 1993

B e t w e e n -

JOHANN MANFRED WEISSENSTEINER

Appellant

and

THE QUEEN

Respondent

MASON CJ
BRENNAN J
DEANE J

DAWSON J

TOOHEY J

GAUDRON J

McHUGH J

Weissensteiner(2) 1 9/6/93

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 9 JUNE 1993, AT 10.21 AM

Copyright in the High Court of Australia

MR P.G. NASE:  May it please the Court, I appear with

MR A.J. RAFTER, on behalf of the appellant.

(instructed by the Legal Aid Office (Queensland))

MR M.J. BYRNE:  May the Court please, I appear with my

learned friend, MR J.R. HUNTER, on behalf of the

Crown. (instructed by the Director of Prosecutions

(Queensland))

MASON CJ:	Mr Nase.
MR NASE:	The Court should have an outline of argument.
MASON CJ:	We have that.

MR NASE:  Has the Court had an opportu to read the

outline?

MASON CJ:  I have not, myself .

.

MR NASE: Although I propose to follow the outline fairly

closely, it would give an indication of the

argument if the Court were to read it.

MASON CJ: Yes.

MR NASE:  I have also handed up to the Court a list of

journals and reports dealing with the right of

silence.

TOOHEY J: 

Mr Nase, the outline does not touch ground 2 of

the grounds of appeal. Are we to draw any
inference from that?

MR NASE: Yes, I only propose to argue ground 1, the ground

in the outline of argument.

TOOHEY J: Thank you.

MR NASE:  If I could take the Court directly to the

directions that are challenged, they appear at

pages 610 and 611 of the appeal record. The trial

judge in fact gave two different directions on the

consequence of the accused not entering the witness

box. One direction took as its starting point the

accused's decision not to give evidence, and that
is the challenged direction; the other took as its
starting point the evidence in the case.

And if one turns to page 610, from line 30,

there is a direction that includes these words, at

about line 42:

The consequence of that failure is this: you

have no evidence from the accused to add to,

Weissensteiner(2) 9/6/93

or explain, or to vary, or contradict the

evidence put before you by the prosecution.

And no complaint is made of that direction.

The complaint is made of the direction that

commences with the word "Moreover" and continues

down to line 20 on page 611 and which is repeated

towards the close of His Honour's summing up at

page 632 from line 49 to page 633 line 3.

The appellant's argument is set out in

paragraph 2 of the outline. At one level the right

claimed by the appellant is based upon the

privilege from self-incrimination which, in turn,

is based upon the view of the relationship between

the individual and the State and the extent to

which the State may use the individual as a source

of evidence. And if I may give the reference

briefly to Petty and Maiden at page 107, which I

will refer to later.

The philosophical bases of the claimed right

is discussed in an article that I wish to mention

to the Court, entitled "The Right to Silence

Reconsidered" by D.J. Galligan, (1988) 41 Current

Legal Problems, 69. I do not wish to read any

passages from that article.

Given the existence of the right to silence and a general immunity from adverse comment from

its exercise, the argument in favour of the

direction seems to be an argument based on common

sense, and that seems to be the reasoning that

influenced Mr Justice Pincus, for example, at

pages 759 and 760 of the appeal record. On

page 759, at line 40, His Honour, after referring

to a Queensland case called Fellowes, referred to

some remarks by Chief Justice Abbott in R v

Burdett:

"In drawing an inference or conclusion from

facts proved, regard must always be had to the

nature of the particular case, and the

facility that appears to be afforded, either

of explanation or contradiction. No person is

required to explain or contradict, until

enough has been proved to warrant a reasonable

and just conclusion against him, in the

absence of explanation or contradiction; but

when such proof has been given, and the nature

of the case is such as to admit of explanation

or contradiction, if the conclusion to which

the proof tends be untrue, and the accused

offers no explanation or contradiction; can

human reason do otherwise than adopt the

conclusion to which the proof tends?"

Weissensteiner(2) 9/6/93

And His Honour's reasoning in the present case

appears from line 20 to line 40 on page 760, where

His Honour thought that:

A jury following proper and logical processes of thought would be likely to treat his not

having done so -

that is, his not having given evidence -

as pointing towards guilt.

DAWSON J:  You accept the proposition that in certain

circumstances uncontradicted evidence is easier to

accept than contradicted evidence, would you not?

MR NASE:  Yes, there is no difficulty in accepting that

proposition. Indeed, one - - -

DAWSON J: But you just say the judge should not tell the

jury that though?

MR NASE:  The judge should not take as his starting point

the conduct of the particular accused in deciding

whether or not to give evidence as an additional

factor in evaluating the evidence.

DAWSON J:	I do not understand that.
MR NASE:	The appellant's argument is that to derive from a

decision not to give evidence an inference of guilt

or some -

DAWSON J:  That is not what is being done. What the jury is

being told is that in considering the evidence
which they have to consider, they may find it

easier to accept in the absence of any

contradiction.

MR NASE: There may, in some cases, be a fine line between

directing the jury that certain evidence is

uncontradicted, which one would accept as a	legitimate direction, and a direction that
specifically focuses on the decision of the accused
not to give evidence, and uses that conduct as possessing evidentiary significance to be added to,
if you like, - - -

DAWSON J: Why is it a fine line? The judge may tell the

jury, "Look, the accused has chosen not to give

evidence, that is his right, you will draw no

inference of any sort from that. But, in

considering the evidence which has been adduced by

the prosecution, the fact is, it is uncontradicted

and that may make it easier to accept in the

circumstances of this case".

Weissensteiner(2)	9/6/93
MR NASE:	In my submission, a direction that goes that far

steps upon the exercise of the accused's right not

to give evidence.

DAWSON J:	Why?
MR NASE:	Because, I fear I am repeating myself, it invites

the jury to use the decision not to give evidence,
as possessing some added significance that they may

consider when determining guilt. In other words,

what is being derived is an inference of guilt from

the exercise of the decision not to give evidence.

DAWSON J: It is not that at all. There is no inference of

guilt - let me rephrase that - the jury is not

being asked to infer guilt from the fact that the

accused gives no evidence. It is told that in

assessing the evidence that has been given it may

take into account the fact that it does so in

circumstances where that evidence is

uncontradicted.

MR NASE:  I fear I am in the position of repeating myself.

I would draw some comfort in putting the submission

from what was, in fact, said by the Court of

Criminal Appeal in Queensland in Reg v Fellowes &

Others, (1987) 2 Qd R 606, when, in looking at this

particular direction, it was said in the judgment

of the court at page 609 when speaking of the

particular direction that was given in this case:

That direction may be taken as to some extent

contradictory of the earlier directions -

that is, that they ought not to draw any adverse

inference from the decision not to give evidence -

because it suggests to the jury that some
inference of guilt may be made by reason of
the accused's failure in this case to give

evidence of their movements on the night in

question. The oblique and somewhat amorphous

expression "less unsafe to infer guilt" cannot
save it from the charge that it could be

understood by the jury as a statement that

some inference of guilt may be derived from

the failure of the accused to give such

evidence.

If I may rely on that process of reasoning in

endeavouring to answer Your Honour's question.

DAWSON J:  It does not seem to me to be right, but I

appreciate what you are saying.	The law has always
recognized this principle.	How would you explain

the doctrine of recent possession otherwise?

Weissensteiner(2)	9/6/93
MR NASE:	The doctrine of recent possession, as I would

understand it to be, is an inference of fact drawn

from the evidence in the particular case.

DAWSON J:	The unexplained evidence.
MR NASE:	The unexplained evidence, if the evidence happens

to be unexplained.

DAWSON J: Yes, the failure of the accused to explain it

allows you to draw an inference.

MR NASE:  But without taking as a starting point as

providing - a way of approaching the evidence the

decision by the particular accused not to give

evidence.

DAWSON J:	I am sorry, I do not follow that.
MR NASE:	As I understand the doctrine of recent possession,

it depends upon drawing a simple inference from the

evidence in the case.

DAWSON J:	The unexplained evidence.
MR NASE:	The unexplained evidence in the case, without

adding to the evidence in the case by, in effect,

asking the jury to infer a consciousness of guilt

on the part of the accused from the exercise of

his - - -

DAWSON J: It is not that at all. It is the failure of the

accused to give an explanation which allows them to draw an inference from the evidence which is given.

McHUGH J: But is the doctrine of recent possession relevant

in this issue, because that doctrine existed even

at a time when the accused person could not give

evidence?

MR NASE:  Yes, in fact it is a doctrine that has existed for

a long time and in its standard formulation it is

in these terms, that if you have evidence that the

accused is found recently in possession of the

property and he either gives no explanation or he

gives an explanation that you reject, then you the

jury may infer guilt. And that direction I would

think, to some extent, infringes the approach that

this Court took in Petty and Maiden to the

accused's right of silence when confronted by the

police. Indeed, I recall that Your Honour

Justice Brennan referred to the doctrine of recent

possession in the course of Your Honour's judgment

in Petty and Maiden and pointed out that the

inference of guilt arises from the evidence, not

from the decision of the accused not to give

Weissensteiner(2) 6 9/6/93

evidence or not to speak to the police in the

particular case.

DAWSON J: Well, in Bruce's case what this Court said was it

was the unexplained evidence, and it was the lack

of explanation coupled with the evidence, which was

the crucial thing.

BRENNAN J:  Your problem is that you are seeking to identify

the foundations for the drawing of a guilty
inference, is that not so, and your proposition is
that if one of the foundations for drawing the

guilty inference is the exercise of the right of

silence, then the right of silence is entrenched?

MR NASE:	Yes, that is a submission.
BRENNAN J:	You have to meet the words of the actual direction given by the trial judge and it seems to
me that a sentence which is critical was one which is not altogether clear, and that is at page 611.
MR NASE:	In fact the Court of Criminal Appeal in Queensland

referred to it as a somewhat amorphous phrase.	The
submission is however, that looking at the direction as a whole, following upon a more

conventional direction that a consequence of not

giving evidence is that the Crown case goes before

them uncontradicted, His Honour then followed that

up by this specific direction as, as it were, an

additional factor to be weighed by the jury.

BRENNAN J: That is question which I think must be answered

according to the construction one places on what

the trial judge said. You have no objection to a

direction which says, "Here is the Crown case which

stands before you uncontradicted; you draw what

inference from it you think appropriate and having

regard to the onus of proof".

MR NASE:  Yes .

BRENNAN J:  Your objection is, here is a Crown case and in

addition the accused could tell you something about

this, but he has not told you, and you can put that
into the material from which you can draw the

inference.

MR NASE:  Yes.

BRENNAN J: Well now, is that what the judge said at

page 611 where he said:

You might, for example, think in this case it requires -

et cetera.

Weissensteiner(2)	9/6/93
MR NASE:	If I may catch up to Your Honour. Which was the

passage Your Honour was looking at?

BRENNAN J: Page 611, line 3:

You might, for example, think in this case it requires no great perception -

It seems to me that there must be a break in that

sentence after "canvassed".

MR NASE:  The retort that is made is that His Honour has, in

fact, given what might be called the conventional

direction, and then His Honour has said on top of

that, using the word "Moreover" at line SO, gives

them this special direction - - -

BRENNAN J: Well, up to the end of page 610 His Honour has

not referred to an absence of evidence as a

foundation for the drawing of an inference. Then

he goes on:

Such an inference may be more safely drawn from the proven facts when an accused person

elects not to give evidence -

Now, do you object to that?

MR NASE:  Yes, I do object to that, because implied in that

is that the explanation for the accused not giving

evidence of relevant facts assumed to be within his

knowledge, is that he has some sense or

consciousness of guilt.

BRENNAN J: Not necessarily. I mean here, the proposition

is that these two people disappeared.

MR NASE:  Yes.

BRENNAN J: And they may have disappeared in a variety of

ways, some innocent, some perhaps guilty. But,

here is a person who has some knowledge of it and

he has given a series of inconsistent explanations,

all of which are innocent.

MR NASE:  Yes.

BRENNAN J: And, on this occasion he stands mute, so that

one looks then simply at the inferences that are

drawn from the proven facts, namely, the giving of
a series of inconsistent and apparently innocent

explanations.

MR NASE: Again I fear I am about to repeat myself, but in

my submission, when one looks at the whole context

of the direction, His Honour has given them a

standard direction about the consequence of not

Weissensteiner(2) 9/6/93

giving evidence, is that the evidence in the case

is not contradicted or explained - - -

GAUDRON J: Is not one of the difficulties this, that the

direction at page 633 really does assume knowledge

of relevant facts within the knowledge of the

accused. Now, certainly that may be the case, for
example, if the accused is found holding a smoking

gun over a dead body and he then says, "Well it was

not me", but he does not give any other explanation
of how he comes to be at the scene of the crime or

holding the smoking gun.

The question really here is, is the evidence

of that kind, or of the kind that we more readily

recognize as falling within the doctrine of recent

unexplained possession, or does the direction

assume such a knowledge which may or may not have

been there?

MR NASE:  The answer that I would give is that the

directions looked at together do assume such

knowledge and therein is the vice in them.

McHUGH J: But is there not a further point, that the only

inferences that can be drawn from the proven facts are either guilt or innocence and you are asked to

weigh the accused's failure to give evidence as

strengthening the conclusion of guilt.

MR NASE:  Yes, that, perhaps expressed a little better than

I have been putting it, is the way in which the

directions, in my submission, are to be understood.

Certainly they were understood in that way in the

Court of Appeal below.

McHUGH J: 

Would you object to taking into account the

accused's failure to give evidence in respect of
proof of a particular fact?

MR NASE: 

Yes .

MCHUGH J:	You would?
MR NASE:	In principle there can be no difference.
McHUGH J:	So that in coming to the conclusion - so you would also object to a direction that in
determining whether or not the jury should find a
particular fact as proved they can take into
account the accused's failure to give evidence in
respect of that, if it would appear he has
knowledge in respect of that fact.
MR NASE:	Yes, and a direction expressed in those particular

words - I know Your Honour was just speaking

loosely - but where the word "failure" is used and

Weissensteiner(2) 9 9/6/93

where "relevant facts" are used, does tend to focus

upon the omission by the accused to give evidence

and attach significance to that. Indeed,

His Honour in this particular case used the words

"failure to give evidence" a number of times in

endeavouring to direct the jury on the consequence

of the accused's absence from the witness-box.

DEANE J:  Does not this in one sense all become rather

academic in that the direction to which you object

really is rather harmless in the sense that the

jury is going to do it anyway? To be really

consistent, would you not have to argue for a need

for a positive direction directing the jury to the

effect that they could not take account of the fact

that the accused had exercised his right to refrain

from giving evidence in terms of drawing

inferences?

MR NASE:  Yes, or to rephrase it slightly, that they could

not infer from the exercise of the right to give or

not to give evidence, any fact.

DEANE J: That is a Greek gift in the sense that I think it

probably makes your task a little more difficult.

MR NASE: In my submission, no. In every case in which an

accused does not enter the witness-box, the jury

will be conscious that one explanation is that he

is unable to explain the facts, or he has a sense

of guilt. One would hope that the jury would also

be conscious that there may be other reasons,

unrelated to his guilt, that explains his absence

from the witness-box, so one would hope that in the

jury's thinking that inference would be moderated

by their thought that there may be other

explanations for his absence from the witness-box.

But once one allows a trial judge to give a

particular direction that in effect legitimizes the

inference of guilt then, in my submission, the

accused is far worse off.

McHUGH J:  You do get into practical problems, because in a

civil case you are always entitled to give
explanations, call evidence, as to why some

explanation was not given.

MR NASE:	Yes.
McHUGH J:	Now, one reason people usually do not give

evidence in criminal cases, at least in my

experience, is because it is done on the advice of

their counsel. Does that mean counsel has got to

give evidence, or - - -

Weissensteiner(2) 10 9/6/93

MR NASE: Well, that is one problem in a direction which

assumes that the motive for not giving evidence is

a consciousness of guilt. Indeed, on a separate

sheet of paper, we have endeavoured to set out

reasons why accused choose not to give evidence

from time to time. Indeed, as Your Honour says, in

the absence of the solicitor giving evidence, or

counsel giving evidence, there is no direct

evidence before the jury as to why the decision was

made in the particular case not to give evidence.

The first is: to avoid the risk of being cross-examined on previous convictions; the second

is to avoid disclosure of the identity or criminal

acts of a person not charged. But other reasons do

occur in practice.

McHUGH J: Take Mrs Chamberlain - she had given nine

different versions, I think, to the police or at
coronial inquests. Supposing she had not given

evidence at that trial on the advice of counsel.

MR NASE:  I have endeavoured to cover that in 4(iii) - that

the accused has told a number of lies on which he

could be cross-examined to good effect.

MCHUGH J:	I was not suggesting she had told any lies.
MR NASE:	No.

She would no doubt, speaking hypothetically of that case, be cross-examined on the

inconsistency between the different accounts.	And
no doubt a good cross-examiner would spend all	his
time cross-examining on that inconsistency and	then
sit down, leaving the jury with the impression	that
the accused is not a truthful person.

TOOHEY J:  Mr Nase, is it your submission that the trial

judge can say no more than appears on page 610

from, say, lines 31 to 41 - "the Crown bears the

onus" down to "you cannot infer guilt from his

failure to do so".

MR NASE:  In fact, a direction in broadly those terms is the

common direction that is given in Queensland.

TOOHEY J:  If the jury returned at some stage and asked the

trial judge what use, if any, they should make of

the fact that the accused has not given evidence, do you say that the explanation can go no further than those few lines?

MR NASE:  In fact, I had in anticipating that question,

thought of an explanation that does go beyond those

few lines.

TOOHEY J:  What would it be? You could pick it up later if

you like.

Weissensteiner(2) 11 9/6/93

MR NASE:  Along these lines - that because the onus is on

the Crown to prove the case on the evidence and

because the accused has no obligation to give

evidence, I suppose these things are a matter of

judgment, but the jury could be told that there may

be many reasons why an accused person may decide

not to give evidence. The jury could be told that

we do not know in this case why the accused decided

not to give evidence. Therefore it would be wrong

to assume he did so because he was guilty, and the

jury could be directed that they should, in other

words, draw no adverse inference from his conduct

in not giving evidence; and then perhaps point out

that the consequence of not giving evidence, as

His Honour did at page 610, is that the evidence in

the case is uncontradicted or unexplained by any

other evidence.

TOOHEY J: And that the jury might more readily therefore

accept that evidence. Do you have any quarrel with

that? Omitting any reference to guilt.

MR NASE:  That the jury might more readily accept that

evidence because it is the only evidence in the

case?

TOOHEY J: Yes.

MR NASE:  I do not know that I can take issue with that

direction, although it comes dangerously close to a

direction that turns the focus of attention upon

the accused's conduct in the case. It would be

better if those words were not added, in my

respectful submission.

If I could stay with the list of explanations

why an accused person ~ay decide not to give

evidence, and make these points. The decision is

one that often is, as Your Honours observe, put in

the hands of the lawyers and the lawyers often

guide and influence the accused in reaching a

decision in the particular case, and things such as

the right of last address which, in Queensland, is

lost if the accused enters the witness-box, are

considered to be important. Also, because the

accused is often the last witness and because he is

called when the jury usually have an understanding
of the case, his evidence is usually scrutinized

with great care by the jury and that is

particularly a problem where the accused is a

person who is socially or culturally deprived and

may not be a good witness.

McHUGH J: That is a powerful reason for not calling the

accused and I think, as you note in your

submissions, it is the one that tends to be the

main reason why counsel advise - - -

Weissensteiner(2)	12	9/6/93
MR NASE:	Yes.	Then to give a direction that assumes that

the motive for not calling the particular accused

is that he has a sense of guilt about the offence,

in my submission, is not a direction that is open.

DAWSON J: But, Mr Nase, no one is suggesting that a trial

judge can tell a jury that they can draw an

inference of guilt or a consciousness of guilt from

his failure to give evidence; indeed, the trial

judge should tell the jury the opposite. That does

not mean that the comment which was made here was

impermissible.

MR NASE:  Yes.

Without reviving the earlier debate that I

may have come out second-best with Your Honour, the
submission is made that - - -

DAWSON J:  The question is not of inference of guilt from

the failure to give evidence; it is a question of

what inferences can be drawn from the evidence that

has been given.

MR NASE:  One could have no quarrel with Your Honour's last

statement or observation. In this case, in my

submission, the directions went far further than

that and, without reviving the same battlefield,

that is my submission, that the usual direction was

made, but on top of that His Honour gave this

special direction that took as its starting point

the decision of the accused not to give evidence

of, what were assumed to be, relevant facts.

I had proposed to, having reached

approximately paragraph 3 in the outline of
argument, to trace some of the cases, because it is

asserted in many cases that the inference of guilt

can be drawn from the accused's decision not to

give evidence. Indeed, that is what I would

understand to be the principle burden of the common

sense argument.

DEANE J: Would you deny that there could be circumstances

in which the direction given in this case was

simply a statement of the obvious? I mean, change

the facts of this case and assume that the boat had

been seen leaving the Australian shore with the

lady on it and that when it arrived at its next

port of call, your client was alone. Now, would it

not be simply stating the obvious to say, in the
light of all the evidence and in the absence of any
explanation from your client, the inference can be

more readily drawn than if your client had come up with an explanation which could not be shown to be wrong?

MR NASE:  In my submission, the direction would still be

objectionable in that actual context.

Weissensteiner(2) 13 9/6/93

DEANE J: Yes, I follow that but the problem is if, in that

case, it is really simply stating the obvious, you
are moving into a difficult area when you say to
the jury, "Well now, leave your common sense in the
court room, go out and place no reliance at all in

terms of the safety of the inference that the

evidence will otherwise permit upon the fact that

the only person who knows what happens has not
offered any explanation - been given every

opportunity of doing so".

MR NASE:  In my submission, that - if I am repeating myself,

a direc~ion in those terms is objectionable but, of

course, on the facts stated it would be quite

unnecessary to give a direction in those terms

because the facts on the facts stated are so

powerful that one would simply have to state them

and the jury would infer from the evidence that

exists in the case the obvious conclusion without

relying upon for additional support a direction

based upon the decision not to give evidence.

McHUGH J: What it means in practice, of course, is that the

right to give evidence which was conferred by

statute in the last century has become a liability

if people do not give evidence. It was one of the

reasons Sir Edward Carson and other leaders of the
English Bar opposed the Criminal Evidence Act of

1898 because they said that it would require the

calling of the accused as a matter of practice

because the juries would draw the inference unless

they were called to give evidence.

MR NASE:  Yes and, indeed, in the first case in which it was

considered in New South Wales after the accused was

made a competent but not compellable witness, the

leading judgment by Windeyer J really accepted the

challenge and it was expected that unless an

accused went into the witness-box the comment would

be made against him. So those fears were well

entertained and that perhaps led to the various

legislative prohibitions upon comment by both

judges and prosecutors.

DAWSON J: And those provisions are now under attack, are

they not, in various quarters, as being contrary to common sense and making the task of the prosecution

more difficult than it need be.

MR NASE: Well, there has been a debate in England

stimulated by the problem in Ireland, that is

documented in one of the articles, in fact, the

article by Mr Greer. But the debate seems to have

been lost at the moment and the law does not seem

as if it will, at least at the moment, be altered

by qualifying or changing the existing right to

silence.

Weissensteiner(2) 14 9/6/93

GAUDRON J:  Can I take you back to the discussion with

Justice Deane, Mr Nase. That discussion seems to

conflate, perhaps, the failure to explain and the

failure to give evidence. In such a case, even if

evidence were given, the comment would still be

made that it was not explained at the first

opportunity and the lack of explanation would then

be available, being conduct in itself tending to

show guilt, or from which guilt might be inferred.

MR NASE:	Yes.
GAUDRON J:	So you really do have to distinguish between

failure to explain and failure to give evidence,

because even if evidence is given, the failure to

explain may found a comment in itself.

MR NASE:  Yes, and indeed a difficulty with authorizing such

a direction is that it will tend to be used in more

than the sort of case that Your Honour postulated,

where such a direction would be unnecessary. It would tend to be used in a wider range of cases,

depending upon the feelings of courts from time to

time. In my submission, the direction is

objectionable and the objection to it is a valid

one.

BRENNAN J:  The whole notion of giving a direction that an

inference can be more readily drawn seems

inappropriate in a criminal jurisdiction, whatever

might be said about it in the case of a civil jury.

That is one of your objections, is it not?

MR NASE:  No, I do not have that as one of my objections

because it seems to be that the direction in some

ill-defined way seems to suggest that the

probabilities of guilt are increased as a

consequence of not giving evidence. So it is

intended to be encompassed in the general objection

to the direction.

BRENNAN J: Yes.
DEANE J:	One feature of this direction is it says, "The

inference may be more safely drawn".

MR NASE:	Yes.
DEANE J:	What would you say if the direction had been, you

may think that in the circumstances of this case

the inference can be more safely drawn? It

obviously would not be as objectionable from your

point of view, but would it be wrong?

MR NASE:  In my submission, yes. Any direction that takes,

as its starting point, the decision not to give

evidence infringes the right of silence.

Weissensteiner(2) 15 9/6/93

McHUGH J: But what if it is expressed in terms of "no

explanation, full stop"? I mean, supposing

somebody who has lived in a house, apparently

alone, for many years, and police go there and they

find a body in a cavity between the walls, or the

remains of a body, there is no explanation as to
how it got there from the owner - there must have

been bricking and that sort of work done - why can

you not rely on that? Why can you not rely on the

fact that the accused has never given any

explanation at all as to how the body got there?

MR NASE:  That the accused in court has not given an

explanation?

McHUGH J: Well, just full stop, either in court or out.

MR NASE: Well, whether the judgment is to be against him,

in my submission, must depend upon the evidence

itself, and whether that is strong enough to

support the inference against him without -

McHUGH J: But in the ordinary reasoning process you would

say, "Well, here is a body in a cavity in a wall

which has been bricked up.	Somebody must have got
in there.	Now it could have been some stranger got

in there, but that has not been proffered as an

explanation. It is obvious the accused did it".

That is an ordinarily legitimate way of reasoning,

is it not?

MR NASE:  In my submission, no, because the reasoning does

reach out - suppose it were the case that he was

questioned by the police and he consciously

exercised his right to silence. One could not, in

my submission, draw any adverse inference to

strengthen the primary facts from the circumstance

that he has given no explanation.

McHUGH J:	You just cannot leave the primary facts in isolation, can you, because what gives the primary
facts meaning is the fact that there are no other
explanations proffered, apart from the obvious one?
MR NASE:	In my submission, one has to look at the primary

facts in isolation. If the primary facts in

isolation are strong enough to support the

inference, then the jury will act on the inference.

McHUGH J: But you would not approach - I am sorry to pursue

this - it in this way; you would just say, "Well

the body is in his house, therefore I draw the

inference he is guilty." You would say, "I draw

the inference he is guilty, because I have not

heard any other explanation as to why the body is

in his house", would you not?

Weissensteiner(2) 16 9/6/93

MR NASE: Well, if one assumes that there is no evidence

about him being asked by the police and one only

has the primary facts, together with his exercise

not to give evidence, in my submission, one is

confined to the primary facts in a case like that.

DAWSON J:  But if you did that you would never get anywhere, would you? I mean, take this case; it is possible,

I suppose, that the deceased fell overboard quite

accidentally, but the Crown is asking the jury to

draw the inference that they were done in by the

accused. Now surely in the absence of that

explanation, it is easy to accept the inference

that the Crown is asking the jury to draw.

MR NASE:  The factual propositions are complicated because

they necessarily involve the accused being asked

for his explanation -

DAWSON J: No, no; the absence - - -

MR NASE:  - - - but if one assumed that he has not been

asked for an explanation and you simply have the

fact that he has not entered the witness-box, in my

submission -

DAWSON J: 

It is not a matter of the fact he has not entered

the witness-box, it is the absence of any
explanation.

MR NASE: Well, on the facts posited, the absence of any

explanation - - -

DAWSON J:  I mean, if he had got into the witness-box and

said something quite irrelevant, there is still -

as Justice Gaudron pointed out, would be absent any

explanation you could draw the inference more

readily.

MR NASE:  In a case in which he entered the witness-box and

in some way failed to provide an explanation, then

the jury has an explanation that it can assess and

reject in their judgment.

DAWSON J:  No, the jury has no explanation if he fails to

provide it. It is exactly the same as a situation

where he does not enter the witness-box, and again

they have no explanation.

MR NASE:  In my submission, the two are different.

DAWSON J: It is not the fact of his not giving evidence; it

is the fact of the absence of explanation.

MR NASE:  In one case, one is deriving an absence of

explanation from the decision not to enter the

Weissensteiner(2) 17 9/6/93

witness-box and, in my submission, one legitimately

cannot do that.

DAWSON J: That is irrelevant.

MR NASE:  One, in those circumstances, is confined to the

primary facts. If the primary facts carry the

conclusion of guilt, then the jury can act upon it
obviously.

BRENNAN J:  Mr Nase, you have no objection to a judge

saying, "These are the primary facts. This is the

onus of proof.	Do you or do you not draw an
inference of guilt from those facts?"	So far so
good.

MR NASE:	Yes.
BRENNAN J:	What if he goes on, does not speak in terms of

more safely or anything of that sort, but says,

"because you have no evidence from the accused

which throws any doubt on any inference that you

might otherwise draw" - just states the fact that

you have no other evidence?

MR NASE:  Any direction is difficult because the line

between inviting an inference from the exercise and

inviting the jury to reason from the fact that that

is the only evidence in the case is a very fine

line.

BRENNAN J: Well, it seems to me that the distinction in

principle is relatively clear, and that is that it

is one thing to say to the jury, "This is the

totality of the evidence before you. You have no

evidence which throws doubt upon that substance of

the Crown case.", and a direction which says,

"Here is the evidence in a Crown case, and add to

that the fact that the accused has offered you no

explanation when he might reasonably be expected to

do so." The latter case, it seems to me, a right

to silence is being used as a trap, and the

question in this case is does it fall on one side

or the other.

MR NASE:  I do not dissent from what Your Honour has said.

DAWSON J: Is it not implicit in the first direction to

simply say, "Look, here you have the Crown case;

you have got no explanation from the accused, but

you do not go further", but the inference which you

are inviting the jury to draw is that therefore it

is easier to accept the Crown case. It may not be

explicit but it is certainly implicit, and the fact

that the judge makes it explicit cannot alter the

situation, surely.

Weissensteiner(2) 18 9/6/93

MR NASE: Well, if in making it explicit the judge changes

the focus on to the conduct of the accused in

exercising his right to silence, then the rule is

infringed.

DAWSON J:  But what would be the purpose of the first

comment if it were not to point out to the jury

that they can more readily therefore accept - - -

BRENNAN J: If they have no other evidence.

GAUDRON J:	What has got to be borne in mind, of course, is that when you are talking about an inference you
are talking about a reasoning process. Now, that
is quite different from saying - well, it is a
reasoning process. The presence or absence of
evidence only bears on it in specific ways, and you
may well get a direction which seems - this one
seems to come very close to it, it just says, "You
may use that reasoning process simply because there
was no evidence, there was no explanation".
MR NASE:	There is also difficulty in the concept of saying

that there is no explanation when the -

GAUDRON J:  When the facts maybe do not invite -

MR NASE:  Depending upon the facts. For example, in the

illustration about the body in the wall, it may be that the primary facts would admit access by other

people to the premises and, in those circumstances,

to tell the jury that there has been no explanation

by the accused is, in my submission, a direction

that involves attaching evidentiary significance to

that accused's decision not to enter the witness-

box.

TOOHEY J:  Is the position any different where the situation

is one not of no explanation having been offered

but, as here, a whole variety of explanations

having been offered, all in conflict with each

other, and some being fairly incredible and not
likely to be accepted.	Now, the focus of your

argument so far has been on no explanation being

offered, but here you have a variety of

explanations. Does that put the trial judge in a

different position?

MR NASE:  The additional objection that is made to the

summing up, and is made rather tersely in the final

paragraph of the outline, is that this is not a

case, at all, where there was no explanation. In

fact, he gave two principal explanations: to all

of the police he gave the explanation that they had

left and went to Western Australia and, indeed,

within the appeal record, almost a hundred pages of

taped interviews where he gives that explanation;

Weissensteiner(2) 19 9/6/93

to two other people who he had struck up a

friendship with on the Marshall Islands. After his

arrest he gave a different explanation, that he

had, in fact, picked them up after sailing out of

Cairns, and then left them at Bougainville.

So, in my submission, it is not a case where he has failed to provide an explanation; he has in

fact provided two inconsistent explanations to two

different groups of people and, in my submission,

in those circumstances such a direction as this,

which is based upon an absence of explanation, is

not an appropriate direction. As I would

understand the Crown case, it was a circumstantial

case that depended, as one of its circumstances,

upon the fact that the accused had given

explanations that were unsatisfactory.

TOOHEY J:  I take it that you do not cavil at the trial

judge drawing attention to the fact that

conflicting and irreconcilable explanations had

been given?

MR NASE:  Not to the trial judge, no.

TOOHEY J:  No. Having gone that far, how much further is

the trial judge entitled to go?

MR NASE:  In my submission, the trial judge was not entitled

to direct the jury in terms that, in effect,

ignored the two fundamental explanations that the

accused had given. The direction assumed that the

explanations the accused had given were untrue and

incorrect.

TOOHEY J: Well, they could not have both been true, could

they?

MR NASE:  No, that is so.

TOOHEY J: In fact, were there not more than two

explanations? There was some reference to going to

Papua New Guinea to meet the owner of the boat.

MR NASE: There were two admitted lies - - -

TOOHEY J: And some reference to going up into the

tablelands.

MR NASE:  Yes, there were two admitted lies that he told

people from Customs and Immigration in the period

before he left Cairns. So there were those two

admitted lies that he told, and he told - to people

that he met casually, he gave different

explanations as to his possession of the boat as

well. But fundamentally he gave two different

explanations. The one he gave to the police he

gave consistently, and that is that they had gone

Weissensteiner(2) 20 9/6/93

to Western Australia, and the other explanation

that he gave the two men at the Marshall Island was

a different explanation.

In my submission, it was not in those

circumstances a correct direction to give assuming

it to be one that could be given. It was rather a

case where the Crown had explanations that it said

were unsatisfactory and that that was part of the

Crown's circumstantial case against him.

TOOHEY J:  Do you mean your position is stronger because a

variety of explanations were given than if no

explanation had been given pre-trial?

MR NASE:  I am sorry, I have not understood Your Honour's

question.

TOOHEY J: Well, I thought you were, as it were,

strengthening your case by reference to the fact

that explanations had been given albeit

explanations that were at variance with each other.

MR NASE:  Yes, I should make myself clear: in making that

submission, is related to a separate point made in

the final paragraph that if such a direction as was

given here is a direction that may be given by a

trial judge, then the present case was not an
appropriate one for such a direction since in fact
the accused had given explanations. So it was not
a case where, as the trial judge directed to the

jury, that there were relevant facts that can be

easily perceived within his knowledge about which

he had not given evidence.

TOOHEY J:  I just have a lot of difficulty with that. You

appear to be suggesting that the accused is in a

better position by having given a variety of

explanations - - -

MR NASE:  No, I am not suggesting that. I fear I am not

direction to be one that may be given, then on the	being very clear. behalf of the appellant is that assuming the The final point that is made on	facts of this particular case it was not appropriate to give that direction. It was not appropriate to give that direction on the facts of
this particular case because in fact he had given
an explanation, or he had given two explanations - perhaps even more - and so when the trial judge
gave this direction it necessarily involved the
trial judge's rejection of those explanations, and
it was not appropriate for such a direction to be
given which had the effect of sweeping away all of
his statements upon which presumably he relied on
in part at the trial.

Weissensteiner(2) 21 9/6/93

TOOHEY J:  You mean, including an explanation that might

have been true?

MR NASE:  Yes.

TOOHEY J: Yes, I understand.

MR NASE: But that is very much a final point. The argument

does depend upon accepting the primary submission

that this particular form of direction does involve

drawing an inference or attaching evidentiary

significance to the accused's decision not to give

evidence.

From paragraph 6 the English cases are dealt

with. The general submission that is made is that

ultimately the English cases are somewhat

contradictory and perhaps unhelpful. It would take

some time to go through them but perhaps I will go

through them as quickly as I can.

DAWSON J:  Is there any case which supports the proposition

you are putting?

MR NASE:  Which supports the proposition that is being

argued? Yes, Your Honour. Waugh, in my
submission, which is a decision of the Privy

Council in 1950, supports the argument. In

paragraph 8 there is a reference to a case called

Haw, where there is a general statement that is against the proposition that I am arguing -

perhaps I can refer the Court - although it is

essentially an obiter comment. But then by way of

contrast, in the next case, Tumahole Bereng, there

again is an obiter statement that supports the

proposition that is being argued.

BRENNAN J: Perhaps you ought to give us the references.

MR NASE: Yes, I am sorry.

MASON CJ:  (1950) AC 203 - no, that is Waugh.

MR NASE: That is Waugh, yes. If I could go briefly to the

passages in Waugh then, (1950) AC 203. Waugh was

an appeal to the Judicial Committee from the Court

of Appeal of Jamaica. The trial judge had referred

in his summing up to the failure of the accused to

testify on no less than nine occasions.

There are some extracts from the summing up in

the reasons of the Judicial Committee at pages 210

and 211. At page 211 it was thought at about

point 7 that:

The law of Jamaica is the same as the law

of England both as to the right of a judge to

Weissensteiner(2) 22 9/6/93

comment on a prisoner's not giving evidence

and as to dying declarations.

And then the sentence commencing:

It is true that it is a matter for the judge's

discretion whether he shall comment on the

fact that a prisoner has not given evidence;

but the very fact that the prosecution are not
permitted to comment on that fact shows how

careful a judge should be in making such

comment.

And then the important passage is at page 212, the

second line, where it was said:

In such a state of the evidence the judge's

repeated comments on the appellant's failure

to give evidence may well have led the jury to
think that no innocent man could have taken

such a course.

And then, towards the end of that paragraph:

the judge, if he made any comment on the

matter at all, ought at least to have pointed

out to the jury that the prisoner was not

bound to give evidence and that it was for the

prosecution to make out the case beyond

reasonable doubt.

In England there was no statutory prohibition upon

the trial judge commenting on the absence of the
accused from the witness-box or on the failure of

the accused to give evidence at trial.

DAWSON J:	What comment could you make, as a judge, other than something along the lines of the comment that
was made in this case, if you were to comment on
the failure of the accused to give evidence?
MR NASE:	The comment that was made in the case under

appeal, Your Honour?

DAWSON J:  No, no, what legitimate comment could you make,

other than something along the lines of the comment

in this case, if you were, as you were allowed to

do as a judge, comment on the failure to give

evidence?

MR NASE:	In my submission, very little; one would explain the onus of proof and where there is a freedom of
comment, as there is in Queensland and in England,
and the accused is called upon in the presence of the jury, it would be sensible to point out to the jury that the accused was free to give evidence, but has chosen not to, and then point out the

Weissensteiner(2) 23 9/6/93

consequences of that decision, that there is no

evidence from him and that the only evidence the

jury has is the evidence that the Crown has placed

before it and point out that there was no

obligation upon the accused to give evidence or

prove any fact. But, apart from general things

like that - - -

BRENNAN J: But the classic case is where the judge says,

"Well, Detective Sergeant So-and-so has told you

the accused admitted it, and he has not gone into

the witness-box to deny it", is it not?

MR NASE:  Your Honour, in my submission, that would be an

objectionable direction.

DAWSON J: Because of its ...... The implication is that

therefore you may more easily accept Detective

Sergeant - - -

MR NASE: Well, certainly, in the way Your Honour put it,

the implication was very clear, and such a comment,

or direction, in my submission, is objectionable.

DAWSON J: But it is made frequently, is it not?

MR NASE: In my submission, no. Following Waugh, a

direction that was given, Lord Justice Parker in

Reg v Bathurst, (1968) 2 QB 99, suggested a model

direction, and that, in fact, came to be known as

the "Bathurst direction", and one can assume that

directions of that sort were given commonly in

England. The direction appears at page 107,

towards the bottom:

Then, as is well known, the accepted form of comment is to inform the jury that, of course,

he is not bound to give evidence, that he can

sit back and see if the prosecution have

proved their case and that while the jury have

been deprived of the opportunity of hearing

his story tested in cross-examination, the one

thing they must not do is assume that he is

guilty because he has not gQne into the

witness box.

If one directs the jury in terms that suggests that

an innocent man would have gone into the witness-box, then such a direction is an

objectionable one, and that is what I understood to be said in Waugh, together with - one can draw from

that that it is implicit that no evidentiary

significance should be attached to a decision not

to give evidence.

In the 1970s in England, there was a feeling

that some stronger comment could be made, and the

Weissensteiner(2) 24 9/6/93

leading case that expresses that viewpoint is a

case called Sparrow, (1973) 1 WLR 352.	The Court
should have copies of that.	The judgment of the

Court was read by Lord Justice Lawton, and at

page 357, the paragraph commencing between Band c,

it was said - - -

MASON CJ:  I do not know that you have given us the correct

reference, because in the Weekly Law Reports the

report commences at 488. You are giving us the

pagination in the Criminal Appeal Reports.

MR NASE:  What I. have done, I have written over my photocopy

of the Weekly Law Reports, where the pages are

missing, the pagination from the Criminal Appeal

Reports. At page 495, again between Band c, the

passage:

In our judgment Waugh v R establishes

nothing more than this: it is a wrongful

exercise of judicial discretion for a judge to

bolster up a weak prosecution case by making

comments about a defendant's failure to give

evidence -

and these are the important words -

and implicit in the report is the concept that

failure to give evidence has no evidential

value.

The court then said:

We can find nothing in it which qualifies the statement of principle in Rhodes.

Rhodes was the first case where the provision was considered in England and the court simply

affirmed, and it was undoubtedly correct in doing

that, there being no such prohibition upon comment,

a judge could comment upon the absence of the

accused from the witness-box.

But Rhodes was a case in which the ground was

taken as one of three grounds of appeal. Rhodes

was unrepresented, there was no argument, and the

court simply commented that there was no statutory
prohibition preventing a judge from commenting upon

the failure of an accused to give evidence at

trial, and the court at page 83 contemplated

comment could be made in the interests of justice

in some cases.

In Sparrow it was said that in some cases a

stronger comment was appropriate, or a stronger

comment would be called for when explaining the

consequences of the accused's absence from the

Wassensteiner(2) 25 9/6/93

witness-box. For example, on page 495 between

paragraphs F and G:

In the judgment of this Court, if the

trial Judge had not commented in strong terms

upon the appellant's absence from the

witness-box, he would have been failing in his

duty.

It was said at, I think, 496 at point C:

What is said must depend upon the facts of

each case and in some cases the interests of

justice call for a stronger comment. The

trial Judge, who has the feel of the case, is

the person who must exercise his discretion in

this matter to ensure that a trial is fair.

Then at point D:

What, however, is of the greatest importance

in Lord Parker CJ's advice to judges - I assume in Bathhurst

is his reference to the need to avoid telling

juries that absence from the witness-box is to

be equated with guilt. As we have already

said, this was implicit in Waugh v R, and

Lord Parker CJ's obiter dictum on this point

has been accepted by this Court as the law.

One might ask what form should the stronger comment

take if it was not permissible to suggest the

conduct of the accused in not giving evidence had

no evidential value. Indeed, that apparent

contradiction led Professor Cross in an article

entitled "The Evidence Report: Sense or Nonsense",

(1973) Crim LR 329, at 333 to observe under

paragraph (2):

"In some cases the interests of justice call

for a strong comment on the accused's failure

to give evidence, but you must never tell a

jury that they may draw an inference of guilt

from that fact."

In this context, I regard the distinction between the permission of comment and the prohibition of inference as gibberish because,

if it is to have any meaning, the comment can

only be construed by the jurors as justifying

them in arguing on the lines indicated

above -

that is, drawing some adverse inference against the

accused.

Wassensteiner(2) 26 9/6/93

The point is made that Sparrow is one of a

number of cases that was decided in the 1970s in

England where there was a greater emphasis upon

judges making strong comments in appropriate cases

upon the failure of an accused to give evidence,

and the point is made that to some extent there is

perhaps a problem in the reasoning in, on one hand,
accepting that the decision not to give evidence -

between accepting that the decision not to give

evidence had - I am sorry, I will start again.

There is some contradiction in, on one hand,

accepting that the decision not to give evidence

had no evidentiary value and at the same time

taking the position that there were cases in which

a stronger comment could be made on the accused's

decision not to give evidence.

In any event, there were a number of cases

that followed Sparrow and presumably carried that

contradiction in them. It is interesting that

Lord Justice Lawton wrote the leading judgments in

some of the cases and he also became a member of

the Criminal Law Revision Committee that in 1972

recommended changes to the right of silence.

Subsequent English cases, in my submission,

really provide the Court with no assistance. In

Haw, if I can give the Court the references - Haw is Haw Tua Tau v The Public Prosecutor, (1982) AC

136, and at page 152 there is essentially an obiter

expression of a view apparently based on the

Sparrow line of cases which carried forward the

common sense argument, page 152 about F and G,

where it is said:

English law has always recognised the right of the deciders of fact in a criminal trial to draw inferences from the failure of a

defendant to exercise his right to give

evidence and thereby submit himself to cross-

examination.

That expression was, in fact, obiter to the

judgment but it is a very general expression that

picks up the -

DAWSON J: It is wrong, is it not?

MR NASE:  I am sorry?

DAWSON J: That comment is wrong, is it not?

MR NASE:	Yes, in my submission, it is wrong.
DAWSON J:	On anything.

Weissensteiner(2)	27	9/6/93
MR NASE:	Yes.	One can see a comment that went the other

way from the Privy Council in a case called

Tumahole Bereng & Ors, (1949) AC 253, where, at

page 270, in again an expression of obiter opinion,

it was said by the Judicial Committee at the top of

the page:

The circumstances that the appellants

elected not to give evidence is equally

incapable of constituting corroboration,

though on more general grounds. Silence on
the part of an accused person which is

tantamount to an admission by conduct may, on

occasion, amount to corroboration. But an

accused admits nothing by exercising at his

electing not to deny the charge on oath.	trial the right which the law gives him of relevant to this appeal - affords no corroboration to satisfy the rule of practice
under consideration.

So there was simply another expression of opinion

that was really no more than obiter.

The most recent occasion upon which the House

of Lords referred to the right of silence appears

to be Reg v Director of Serious Fraud Office, Ex

parte Smith, (1992) 3 WLR 66 where, at page 74,

under the heading, right of silence, it was said:

I turn from the statutes to "the right of

silence." This expression arouses strong but

unfocused feelings. In truth it does not

denote any single right, but rather refers to

a disparate group of immunities, which differ

in nature, origin, incidence and importance,

and also as to the extent to which they have

already been encroached upon by statute.

Amongst these may be identified -

and the relevant ones here are (4) and (6);

particularly (6) -

A specific immunity (at least in certain

circumstances, which it is unnecessary to

explore), possessed by accused persons

undergoing trial, from having adverse comment

made on any failure (a) to answer questions

before the trial, or (b) to give evidence at

the trial.

The Judicial Committee was not concerned with

either (4) or (6) in the course of the judgment so

there is simply that fleeting reference to and

recognition of the right and the corresponding

immunity.

Weissensteiner(2) 28 9/6/93

So the submission is that there is limited

assistance from the English cases. One can find

obiter to support a number of different

propositions, but in the most recent occasion it

does seem to be recognized that the right exists.

As Your Honour Justice Dawson observed, there has
whether the right to silence should be retained and, if so, in what form.

been some controversy since the report of the

DAWSON J: Whether the exercise should be given evidential

values?

MR NASE:  Yes. And that debate is summarized in an article

by a Mr Greer in the list of articles written up:
S. Greer in "The Right to Silence: a Review of the

Current Debate" 53 MLR 709. Assuming that the direction in this case does involve a use of the accused's decision not to give evidence against

him, then the direction under review is one that

ultimately stems from the decision in this Court in

May v O'Sullivan.

In paragraph 9 there are essentially matters of history set out, dealing with the sorts of

directions that have been given in Queensland from

time to time. If I can add to the references in

paragraph 9 the further reference, R v Fellowes &
Others, (1987) 2 Qd R 606. At page 609, from about

line 37 to line 45 - I do not wish to read from it; I simply wish to refer the Court to it - there is a

qualification expressed on the account of the

history given by Mr Justice Hart in Phillips &

Lawrence.

TOOHEY J:	Mr Nase, I appreciate that there is no statutory prohibition on the trial judge commenting on the
failure of the accused to give evidence in
Queensland, but are there any statutory provisions
that even begin to touch this area of debate in
Queensland.
MR NASE:	No.
TOOHEY J:	We are entirely in the field of common law, are

we?

MR NASE:  Yes.

In Queensland there is no statutory prohibition on comment by either the judge or the

prosecutor. So Queensland is the only State where

there is no prohibition on both.

TOOHEY J: Thank you.

MR NASE:  In more recent times - perhaps not that recent - a

series of Queensland cases, in reliance largely

Weissensteiner(2) 29 9/6/93

upon a general statement in May v O'Sullivan,

developed a direction to be given in circumstantial

cases where the accused could be assumed to have

knowledge of relevant facts, but chooses not to

give evidence.

Those cases are collected by

Mr Justice Pincus, Acting Judge of Appeal, in the

judgment below. And those cases, if correct,

authorize the particular direction that was given

in the present case and the direction was given by

the trial judge in reliance upon that formulation.

That formulation is in fact based on what was said

in this Court in May v O'Sullivan, (1955)

92 CLR 654, and it is to May v O'Sullivan that I

now wish to turn.

The Court in fact disposed of the point on

appeal fairly rapidly, on page 656, but then went

on to make some further comments and, at page 657,

toward the bottom of that page, in the paragraph

commencing "It seems desirable also to refer", the

Court then turned to a particular direction in a

South Australian case, Wilson v Buttery and, after

citing the passage which continues on to page 658,

observed, a little above half-way down the page:

If the words italicized above were omitted,

the passages quoted would seem to be

unexceptionable and to contain an accurate

statement of the law.

Then the Court went on to say, still on page 658,

about three-quarters of the way down the page, the

sentence commencing:

After the prosecution has adduced evidence

sufficient to support proof of the issue, the

defendant may or may not call evidence.

Whether he does or not, the question to be

decided in the end by the tribunal is whether,

on the whole of the evidence before it, it is

satisfied beyond reasonable doubt that the

defendant is guilty. This is a question of

fact. In deciding this question it may in

some cases be legitimate, as is pointed out in

Wilson v Buttery for it to take into account

the fact that the defendant has not given
evidence as a consideration making the
inference of guilt from the evidence for the
prosecution less unsafe than it might
otherwise possibly appear. But to say this is

a very different thing from saying that the

onus of proof shifts.

Weissensteiner(2) 30 9/6/93

And the direction, in this particular case, and as formulated in the Queensland cases, is expressly

based upon that passage.

BRENNAN J: There are two things that can be said about that

passage: the first is that it translates into

criminal jurisdiction the observation from

Morgan v Babcock & Wilcox.

MR NASE:	Yes, it does.
BRENNAN J:	And the second is that the case was concerned

with the onus of proof, not with the right of

silence.

MR NASE: Yes, and indeed, the remarks of the court were

strictly obiter. In fact, in the particular case,

the defendant - - -

McHUGH J:  Was not Morgan v Babcock & Wilcox a criminal

case? Was it not a prosecution made under the

Secret Commissions Act?

MR NASE: It may have been, I am not - - -

MASON CJ:  I thought it was.

MR NASE:  It may have been. I may have been wrong in

agreeing with Justice Brennan. I think there was

some observations by Justice Isaacs in it.

McHUGH J: Yes, it is referred in it.

MR NASE:  They were fairly brief. But it may be that

His Honour, in that case, applied the civil rule,

and so it got into it that way.

BRENNAN J: Justice McHugh is quite right.

MR NASE:  In May v O'Sullivan, of course, the defendant had

given evidence and the case turned on a different
point, so the remarks were strictly obiter.	The

submission is made, and it is simply submitted,

that - - -

DEANE J:  The passage on page 658 at point 3, in

May v O'Sullivan, is far s_tronger than the unsafe passage, is it not. That is:

If the truth is not easily ascertainable

which they say is "unexceptionable".

MR NASE:  Yes, I see that section. Whatever the form of the

direction, if it, in fact, takes as its starting

point - - -

Weissensteiner(2) 31 9/6/93

BRENNAN J: But if you applied that sentence as a direction

to this case, it would be far stronger than the

direction that was given.

MR NASE:  Yes, it would be stronger, yes. Although, in

relying upon the passage at the bottom of page 658,

the direction as it has been formulated adds as

part of it the assumption that the accused has

knowledge of relevant facts which, in fact, is not

in May v O'Sullivan, but I suppose may be derived

from the passage that Your Honour mentioned:

If the truth is not easily ascertainable by the prosecution -

but it is simply submitted the court in that case

was not there intending to lay down a rule

concerning the directions that should or could be

given in circumstantial cases to a jury when an

accused chose not to give evidence. It is
submitted that the correctness of the direction,

based on May v O'Sullivan, cannot be maintained

consistently with what was said in this Court in

Petty and Maiden. And, if I may take the Court now

to Petty and Maiden, and I can do that fairly - - -

McHUGH J: Just before you do, are you going to say anything

about Guiren's case in New South Wales, because

Guiren has always applied that passage that

Justice Deane referred to - in New South Wales, as

long as I can remember, trial judges there have

used that statement that Justice Deane referred to,

and it is supported by Guiren in the Court of

Criminal Appeal in 1962?

MR NASE:  I had not proposed to specifically say - it was on

Mr Byrne's list of authorities and I did read it

very quickly, and it does - in fact, a large number

of cases have followed May v O'Sullivan in taking
the same approach to the sort of directions that
could be given to a jury; not only the Queensland

cases. There are authorities in New Zealand that I

am aware of that have also drawn from May v

O'Sullivan in formulating such an approach, and undoubtedly May v O'Sullivan, if correct, is

susceptible to that construction, and it is

difficult to see a means of distinguishing what was

said in May v O'Sullivan when looking at the

present direction given in this case.

So the submission is made that in May v

O'Sullivan the Court was not intending to lay down

a rule concerning the directions that could or

should be given to a jury in circumstantial cases

when an accused chooses not to give evidence, and

that perhaps a qualification should be added to

May v O'Sullivan in view of what was said in this

Weissensteiner(2) 32 9/6/93

Court by Petty and Maiden. The submission is made

that the correctness of a direction, based on May v

O'Sullivan, cannot be maintained consistently with

Petty and Maiden. And so it is to Petty and Maiden

that I must finally go.

At 173 CLR 95, in the judgment of Your Honour

the Chief Justice and Justices Deane, Toohey and

McHugh, on page 99, it was affirmed that the right

to silence when questioned by the police:

is a fundamental rule of the common law -

and that -

An incident of that right of silence is that

no adverse inference can be drawn against an

accused person by reason of his or her failure

to answer such questions or to provide such

information.

And it was thought, and it was said:

To draw such an adverse inference would be to

erode the right of silence or to render it

valueless.

In the course of the judgment, Your Honours

dealt with a supposed distinction between reliance

on silence as evidence against the accused and

reliance on it by way of answer to or comment upon

a defence raised for the first time saying, at

page 101, at about line 3:

the denial of the credibility of that late

defence or explanation by reason of the

accused's earlier·silence is just another way
of drawing an adverse inference (albeit less

strong than an inference of guilt) against the

accused by reason of his or her exercise of

the right of silence. Such an erosion of the

fundamental right should not be permitted.

And if one may ask rhetorically, why should the

right to silence be maintained only until the

accused enters the court room and has to decide

whether or not to give evidence.

Your Honour Justice Brennan, at page 106, also

asserted that the right to silence - at about

point 7:

is a "right" which attracts an immunity from

any adverse inference which might otherwise

arise from its exercise.

Weissensteiner(2) 33 9/6/93

And then, at page 107, at about line 10,

Your Honour dealt with - - -

BRENNAN J: That was from being questioned by persons in

authority.

MR NASE:  Yes, that is so. And in that passage Your Honour

identifies the basis of the right. If I can move

quickly through. Your Honour Justice Dawson was of

the view that there were some circumstances in

which an adverse inference could be drawn from an

earlier refusal to advance an explanation and then

if - - -

DAWSON J:  I pointed to the doctrine of recent possession, I

think, in that case.

MR NASE:  Yes, and in fact it is difficult to deal with the

doctrine of recent possession.

At page 118 Your Honour did seem to accept

that no adverse inference could be drawn from the

decision not to give evidence. About the middle of

that page Your Honour said, page 118:

The right to silence is a convenient, if somewhat imprecise, expression, which conveys

the traditional objection of the common law to

any form of compulsory interrogation. It

embraces the absence of any obligation on the

part of a person suspected of having committed

a crime to answer questions by the police or other persons in authority. The exercise of

the right to silence cannot, of itself, amount

to an admission of any kind or reflect a

guilty conscience, and a trial judge should so

instruct a jury where an accused has chosen

not to answer questions whether at or before

the trial. The trial judge should tell the

jury that the accused was quite entitled to

remain silent and that they should not infer

guilt from the fact that he exercised his

right to do so.

So, Your Honour seemed to generalize the right to

include the exercise of the right not to give

evidence at the trial.

Justice Gaudron, at pages 128 and 129, at

page 128, the final paragraph on that page

commented that:

Although ordinary experience allows that

an inference may be drawn to the effect that

an explanation is false simply because it was

not given when an earlier opportunity arose,

that reasoning process has no place in a

Weissensteiner(2) 9/6/93

criminal trial. It is fundamental to our

system of criminal justice that it is for the

prosecution to establish guilt beyond

reasonable doubt. The corollary of that - and

it is equally fundamental - is that, insanity

and statutory exceptions apart, it is never

for an accused person to prove his innocence. Therein lies an important aspect of the right

to silence, which right also encompasses the

privilege against incrimination.

To allow that an explanation might be

judged false because it was not put forward

before trial is, in effect, to allow that the
burden of proving guilt may be more readily

discharged because the accused person did not

signal the precise basis of his innocence - in

other words, his defence. And that is so even

if the accused person bears an evidential

burden, for a burden of that kind does not

relieve the prosecution of the ultimate onus

of establishing the elements of the offence

charged beyond reasonable doubt.

A direction which allows that failure to

advance a matter of defence may detract from

its weight, reduces the burden on the

prosecution to prove guilt beyond reasonable

doubt and undermines its corollary that,

insanity and statutory exceptions aside, it is

never for an accused person to establish his

innocence.

I might add that that reasoning seems to have been

the one that influenced the Royal Commission that

was set up in England following the report of the

Criminal Law Review Commission to consider

modification of the right to silence, that that

same process of reasoning influenced them to

recommend against any change in the law that at

that time governed England.

So the submission is that the correctness of

the direction, admittedly based on May v

O'Sullivan, cannot be maintained consistently with

what has been said by this Court in Petty and

Maiden about the right of silence in so far as it

relates to questioning by police officers. That is

the principal submission advanced in the appeal.

There are no other submissions that I wish to raise

before the Court.

MASON CJ: Thank you, Mr Nase. Yes, Mr Byrne.

MR BYRNE: 

If the Court pleases, we did provide a copy of

both a summary, an overview of the Crown case,
together with an outline of submissions.

Weissensteiner(2) 35 9/6/93

MASON CJ: Yes, we have those.

MR BYRNE:  We apologize for the length of those, but it was

thought necessary to go to some detail to canvass

the area. The beginning point, if I may, is it is

important to appreciate the trial in which the

trial judge was summing up to. The various

inconsistent and incompatible stories told by the

appellant are set out in the summary of the Crown

case. It is important to bear in mind that despite

these versions being disparate, none of the
statements said to have been made by the appellant

to the various witnesses were challenged during the

course of the trial. So the jury was left, in

effect, with a number of different versions, all of

which could not be true, some of which must be

false, and it was against that background that they

were faced with a fact-finding process, the
ultimate decision being the guilt or otherwise of

the appellant.

Looked at against that background, the

direction, it is submitted, is not improper. It

does not invite the jury to infer guilt from

failure to give evidence, and although it has been

canvassed at some length by my learned friends, if

I could take Your Honours briefly again at the

beginning of these submissions to page 610 of the

record, His Honour directs the jury specifically,

at about line 38 that:

The accused bears no onus. He does not have

to prove anything ..... he was under no

obligation to give evidence -

and importantly, in our submission, tells the jury

that they -

cannot infer guilt simply from his failure

to -

give evidence.	The rest of that page and over on
to the next page is an attempt, in our submission,

to assist the jury in the way in which they can

draw inferences from the uncontradicted disparate

versions proved in the course of the Crown case.

The Crown proved a number of circumstances

which established, it is submitted, beyond

reasonable doubt, that both Bayerl and Zack were

dead, and the Crown then went on to prove that the
person responsible for their deaths was the,

appellant, and the proof of that became the

circumstances of his movements in Cairns from about

the end of November/December, and his stories given

to various persons in his travels throughout the

south Pacific.

Weissensteiner(2) 36 9/6/93

It should be borne in mind also at this early

stage that the trial judge had the feel of the
jury, the trial being one of some length. If I
could take Your Honours to a statement made by the
learned trial judge when an application was made
for redirection. That is at page 638 of the

record, between lines 15 and 23. His Honour said

this:

I may say that one of the reasons I was at some pains is -

that should be perhaps "in" -

the way in which they could use it. I was

anxious that they not misuse the fact that he

had not given evidence, in part, I must say,

really, rightly or wrongly, based on an

observation of their reactions to various

stages of the trial. I say that is why I was

at some pains to emphasise the way in which

they could.

I will be dealing with that aspect of the

directions later but if I can make the point at

this stage that in the absence of a·limiting

direction such as that given here, it is open - it

would have been open to the jury to infer guilt

from the fact that evidence was not given by the

accused. That may not have been a legitimate

exercise but it would have been an inference which

was open in the absence of limiting directions and

that is one aspect which is discussed in the

authorities.

MASON CJ: But I do not see the point of that. I mean,

there is no attack on that part of the directions.

MR BYRNE:  The attack, as I understand it, Your Honour, is

on what I have described as the limiting direction,

that is the directions which tell the jury of the

limited use they can make of the failure to give

evidence.

MASON CJ: Well, there is no attack on that part of the

direction which tells the jury they cannot draw an

inference of guilt from the failure to give

evidence.

MR BYRNE:  But the attack is upon the further directions

which say that the only use they can make of the

failure to give evidence is that inferences, that

is, inferences from proven facts, can be more

safely drawn -

MASON CJ: Yes, that is the focal point of the attack.

Weissensteiner(2) 37 9/6/93

MR BYRNE:  But in the absence of those directions, what use

is a jury to make of the failure? It would, in our

submission, be open to them to speculate as to what

use they could make, because it has been recognized

for centuries that juries and persons of all walks

of life do draw inferences where there is an

absence of explanation, in certain circumstances.

GAUDRON J: In one respect, if I could interrupt you, in a circumstantial case there may be some validity in

so far as presumably one would not have to take

into account hypotheses that might be open about

which the defendant would be the only person who

would know them. Now that may give some validity

to what is said, does it?

MR BYRNE:  And, indeed, that is discussed in some of the

authorities, that the orderly administration of

justice requires that a jury not be allowed to

speculate on what an accused may have said or what

stories he may have given.

GAUDRON J:  No, I am not thinking of that so much as this:

in the example Justice Deane gave, where they had been seen on the boat, for example, and then they were not on the boat; in the absence of an

explanation of falling overboard, it is not an
explanation that has to be negatived, perhaps,

before you could draw the inference.

MR BYRNE: That is so.

GAUDRON J: Except, to put it more precisely in this case,

their not having been seen on the boat, or there

being no evidence of their being seen on the boat,

there being no suggestion to that effect, that was

not an inference that had to be negatived, or that

might be more easily be negatived; put aside.

MR BYRNE:	Yes, I understand that.
GAUDRON J: But you would have to be fairly precise, would

you not, when saying things like that in a

circumstantial evidence case?

MR BYRNE:  Indeed, and all the authorities that we have

found, particularly the Queensland authorities on

this point, do stress that it is only in certain

exceptional circumstances where directions such as

this ought be given. I am not sure if that fully

answers Your Honour's point.

GAUDRON J: Well, I am just wondering if there is not some

validity in what was said in a circumstantial case

that might not otherwise be present in an ordinary

case.

Weissensteiner(2) 38 9/6/93

MR BYRNE:  We accept that, with respect, such a direction as

example, the principal issue was one of credit.	this would not be appropriate in a case where, for gives evidence of what the accused did, the accused
does not give evidence to rebut that. There is no
room there for a direction such as this because the
issue was one of credit. A circumstantial case is
a particular one where the level of Crown proof
gets to the point where, in the absence of
contradiction or explanation, a jury will draw inferences.

GAUDRON J: Well, it is not so much absence of contradiction

or explanation, it is absence of any suggested

hypothesis.

MR BYRNE: Yes, that is so. That is, with respect, another

way of putting it. So, if there is no story, or no

consistent story or explanation given as to why, in

this case, disparate false stories were given, then

a jury, acting reasonably, must draw adverse

inferences against the appellant. And that,

really, has always been a tenet of the common law.

We have referred in the outline to the earlier

cases of Blatch v Archer, (1774) 1 Cowp 64. This

is simply an illustration of the point. At

page 970, at about point 2 on that page - I am

sorry that is in the English Reports which is 98 ER

969 at page 970, Lord Mansfield said this:

It is certainly a maxim that all evidence is

to be weighed according to the proof which it

was in the power of one side to have produced,

and in the power of the other to have

contradicted.

That, in our submission, is no more than a

statement of what a jury's reasoning comes down to.

Where there is a strong circumstantial case proved

against an accused, and it it in his power to

produce evidence to the contrary and he chooses not

to do so, then the evidence in the case is to be

weighed with that in mind, and that, in our

submission, is another way of expressing what was

said by the learned trial judge here.

In R v Burdett (1820) 4 B & Ald 95, a number

of statements were made which have been relied upon

throughout the common law world since that time and

were relied upon by the majority in the

Court of Appeal Queensland in the present case.

If I can take Your Honours to three passages

there. The first is at page 121 at the bottom of

the page, the final full sentence, this is said:

Weissensteiner(2) 39 9/6/93

But when one or more things are proved, from which our experience enables us to ascertain

that another, not proved, must have happened

we presume that it did happen, as well in '

criminal as in civil cases ..... It is enough,

if its existence be highly probable,

particularly if the opposite party has it in

his power to rebut it by evidence, and yet

offers none; for then we have something like

an admission that the presumption is just.

At about point 4 on that page:

There is scarcely a criminal case, from the highest down to the lowest, in which Courts of

Justice do not act upon this principle.

That deals with reasoning of juries and it should

be said that at the time of R v Burdett, of course,

an accused could not give evidence. That did not

come until the late 19th century.

If I could take Your Honours next to page 140

of that report and invite Your Honours to read from

about point 4 on that page, the sentence beginning:

They stand only as proofs of the facts

presumed till the contrary be proved - down to the bottom of that page. And finally in

that case, Your Honours, at page 161 at the bottom

of the page, about point 8, a sentence beginning

"In drawing", reads this way:

In drawing an inference or conclusion from

facts proved, regard must always be had to the

nature of the particular case, and the

facility that appears to be afforded, either

of explanation or contradiction. No person is

to be required to explain or contradict, until

enough has been proved to warrant a reasonable

and just conclusion against him -

And just stopping there, that really underlines the

decision by this honourable Court in

Petty v The Queen. As far back as 1820 no one was

required to explain until a case was proved to a

sufficient standard but once - - -

McHUGH J: That is said in a context where failure is the

failure by the defence to call witnesses. That was

the issue.

MR BYRNE:  Yes, it was, Your Honour. It applies, in our

submission, to a case here where the accused

himself was not called evidence, the processes of

reasoning being the same. Particularly in the

Weissensteiner(2) 40 9/6/93

circumstances here where it was only the accused,

if anyone, who could have offered an explanation as

to what did occur and why the disparate statements

were made.

Examining the common law jurisdictions which have their origins in the English common law, the theme which runs through them is that inferences

such as this may be drawn, and that applied so far

as the analysis we have attempted to set out from

the point where an accused was entitled to give

evidence. Rhodes' case was referred to, and the

leading case so far as Australia was concerned was

Reg v Kops in New South Wales. That went on appeal

to the Privy Council, and the Privy Council in Reg

v Kops, (1894) AC 650 at page 653, said this:

There may no doubt be cases in which it would

not be expedient, or calculated to further the

ends of justice, which undoubtedly regards the

interests of the prisoner as much as the

interests of the Crown, to call attention to

the fact that the prisoner has not tendered

himself as a witness, it being open to him

either to tender himself, or not, as he

pleases. But on the other hand there are

cases in which it appears to their Lordships

that such comments may be both legitimate and

necessary.

It is submitted that the instant case falls into a

category in which the limited comments made by the

trial judge here were legitimate.

It is expressed perhaps even more strongly in

Reg v Rhodes, (1899) 1 QB 77, again in the 19th

century. At the bottom of page 83 this is said:

There are some cases in which it would be

unwise to make any such comment at all; there

are others in which it would be absolutely necessary in the interests of justice that such comments should be made.

That approach has been the approach adopted in

Queensland.

GAUDRON J: What is it that makes this case one that was

appropriate for comment in your submission?

MR BYRNE:  As was said in May v O'Sullivan, Your Honour,

that the case is one where the innocent

explanation, if there is one, would be peculiarly

within the knowledge of the - - -

Weissensteiner(2) 41 9/6/93

GAUDRON J:  I have seen that said but I do not understand

what it is that would have been peculiarly in the

knowledge of the accused. I just do not see it.

MR BYRNE: In the present case?

GAUDRON J: Yes.

MR BYRNE: Well, he could, it is submitted, have told the

jury what did happen to the two people.

GAUDRON J: But that assumes that he knew; I mean, that

really makes an assumption.	What is the evidence
that he knew what happened?

MR BYR:·rn:  He purported to tell a number of people what happened to them. One of those explanations may

have been correct; all of them could not have been.

GAUDRON J: Well, so inferences can be drawn from that, but

not necessarily the inference that he knew what

happened to them.

MR BYRNE: Well, if I can say this, at no stage did he, when

he was going around at different times claiming

ownership of the vessel or telling stories about

its acquisition, did he claim not to know what had

happened to the two persons.

GAUDRON J: Well, that is again making an assumption.

MR BYRNE:  I do not think I can put it higher than that, but

it is an assumption which, it is submitted, was

open, on the facts here.

DEANE J He could have told them how he was in possession

Jf the boat, without the owner's presence or

activity in relation to it.

MR BYRNE: Well, that would have been an explanation,

Your Honour, yes.

TOOHEY J: And how he was in possession of the personal

effects of the two people; effects which they might ordinarily be expected to have on or close by them.

MR BYRNE: That is so, also.

BRENNAN J: When he last saw them?

MR BYRN·	Why he was sometime later in possession of all
'.ese materials, including materials which one

Juld expect the two persons to carry with them if

they had departed the boat, as he said at various
times, be they in Kuranda, Kununurra or

Bougainville. And that leads on to the point where

there is the accumulation - if I can just go back

to Your Honour Justice Gaudron - of material

Weissensteiner(2) 42 9/6/93

against him that cries out at the end for

explanation, and we do not shirk that, but it was

· assumed in the judgments of the majority in the

Court of Appeal that this was a case where he would

have been in possession of an explanation which he

could have given to the jury.

GAUDRON J: 

The assumptions seems to me not of itself to

carry you any distance. Whether there is evidence
that he knew something is what has got to be looked

at and, indeed, if he was asked for an explanation.

He gave inconsistent explanations. What you are

saying seems to assume that all were false.

MR BYRNE: 

That was an inference open to the jury in the

absence of explanation.

GAUDRON J: Yes, it may be an inference open to the jury but what you are putting, namely that he knew something

that was peculiarly within his knowledge which he

was not telling, does assume that all were false.

MR BYRNE:  It does not necessarily go that far. One of them

could have been true. He could have got in the

witness-box, for example, and said, "Well, yes, I
did drop them off in Bougainville and they did

leave all the personal possessions on the boat for

a particular reason" and that one was true, all the

others were false. But that is just an example of

an explanation which could have been in his

knowledge that he could have reasonably given.

The limit on directions of this sort has been

recognized in Queensland ever since the directions

were in effect given. If I can refer Your Honours

to the case of Reg v Whinfield, an unreported

decision, copies were provided this morning. It is

CA number 132 of 1986. I take Your Honours to

page 25 of the unreported decision. Reference is

made by His Honour Mr Justice Carter, with whom the

other members of the Court of Criminal Appeal

agreed, to the cases of Reg v Young and Reg v

Hartas as illustrating: 

the rule that where the truth is not easily

ascertainable by the Crown and guilt remains an inference to be drawn from whatever facts

the Crown is able to prove, it is proper to
tell the jury that the inference may be more

safely drawn from the facts ..... which, it can

easily be perceived, must be within his
knowledge.

Now, that, as has been pointed out, seems to flow from May v O'Sullivan and from the judgment of

Mr Justice Isaacs referred to there. But it is, to

read the next passage -

Weissensteiner{2) 43 9/6/93

DEANE J: Except there is a subtle difference. In May v

O'Sullivan the Court was speaking about what the

tribunal - namely the tribunal of fact - might do.

It is quite a different thing to make an

unqualified, or give an unqualified direction to

the tribunal of fact, but this can be more safely

done as distinct from a direction you may consider.

Do you follow - - -

MR BYRNE:  I do try to follow that

DEANE J:  I mean, take for example this case. One

conceivable explanation is that the applicant did

not kill the people, but stole their boat, and his

assessment was if I give evidence and say what

happens I will admit that I stole their boat, and I

will be up on a charge and imprisonment for that,

whereas I am told if I remain silent I have got a

reasonable charge of being acquitted because they

have never found the bodies.

MR BYRNE:  Yes.

DEANE J: Well now, it may well be that the direction, as a

direction to the jury, "you might consider" is a

justifiable one. It does not necessarily follow

that a direction whose effect is, "You will

consider" in that "may" does not seem to be in "it

is a matter for you" sense, is also justified. I

do not think the result of the case would turn on

that but it leaves me a little uncomfortable, I

must confess.

MR BYRNE: Certainly, if "may" was read as "will" we would

agree with Your Honour, but the effect of the

direction simply was to assist the jury in the

process of reasoning.· It is simply another way of saying that the proven facts are not contradicted,

therefore the jury may - "may" - more safely - - -

DEANE J: No, but it was not said that way. It was "the

inference may" and I read that as a direction "the

inference can".

MR BYRNE: Well, to fall back on the logic, logically the

inference can be drawn and that is the basis of the

decision in May v O'Sullivan and Your Honour is

quite right that it referred there to a tribunal;

the tribunal there being a magistrate - a tribunal

of fact. But if the process of reasoning is

legitimate for such a tribunal of fact to adopt,

then we would submit it is legitimate for other

tribunals of fact, such as trial judges deciding

issues of fact, and juries to adopt a similar

process of reasoning or drawing inferences.

Weissensteiner(2) 44 9/6/93

The passage at about point 4, page 25 of

Hartas, acknowledges:

that it is a very different situation from one
in which the jury is told that guilt can be

inferred from the mere fact of an election not

to give evidence.

And that would be a flaw falling within Your Honour

Justice Deane's statements.

The less unsafe to "infer guilt" direction was

said to be proper in circumstances where guilt was

necessarily a matter of inference from other facts

and where the accused had elected to give evidence

of relevant facts of which he alone had knowledge.

That latter fact, in particular, made it less

unsafe for a jury to draw the inference of guilt.

However, Whinfield's case was a different one, as was recognized, and at page 26 at about point 3,

His Honour said this:

If the direction were held to be proper in the

circumstances of this case, it would follow

that where direct evidence is given of the

commission of an offence, the failure of the

accused to give evidence can be taken into

account by a jury who can thereby

"infer guilt", that is infer guilt from the

mere fact of a failure to give evidence.

That, in my view, is not and never has been

the law.

And that is why, we submit here, that it is in a

particular factual background of a circumstantial

case, that a direction such as the present was

legitimate.

Your Honours, that proviso, if you like, has

been recognized also in England. If I could take

Your Honours briefly to the case of Gallagher,

(1974) 59 Cr App R 239 at 245, about half-way down

page 245, this is said:

What is said must depend upon the facts of

each case and in some cases the interests of

justice call for a stronger comment. The

trial judge, who has the feel of the case, is

the person who must exercise his discretion in

this matter to ensure that a trial is fair. A

discretion is not -

to -

be fettered by laying down rules and

regulations for its exercise.

Weissensteiner(2) 45 9/6/93

The only rule, we would submit, is that a case must

be an appropriate one in which such a direction

could be given.

To summarise the position in England, the

position is and remains that a trial judge is
entitled in appropriate cases to comment upon the
failure of an accused to give evidence and two

recent cases, one of which was referred to by our learned friends, Haw Tua Tau, and I will not take

Your Honours to the passage fully but there is one

passage at page 153 where the Privy Council said

this - and it is noted in passing that a former

member of this honourable Court was part of the

Privy Council on that occasion, Sir Ninian Stephen:

What inferences are proper to be drawn from an

accused's refusal to give evidence depend upon

the circumstances of the particular case, and

is a question to be decided by applying

ordinary commonsense - on which the judiciary
of Singapore needs no instruction by this

Board.

The final English case, if I may refer to it,

is Raviraj & Others, (1987) 85 Cr App R 93 at 103.

At the bottom of page 103 the court· is considering the doctrine based upon recent possession and

Lord Justice Stocker said this:

The doctrine -

that is the doctrine of recent possession -

is only a particular aspect of the general

proposition that where suspicious

circumstances appear to demand an explanation,

and no explanation or an entirely incredible

explanation is given, the lack of explanation

may warrant an inference of guilty knowledge

in the defendant. This again is only part of

a wider proposition that guilt may be inferred

from unreasonable behaviour of a defendant

when confronted with facts which seem to

accuse.

It is acknowledged that that must be read in the light of comments by this Court in Petty v Reg,

but that does not take away from the inferences

which can be drawn from circumstances, recent

possession being but an example of circumstances

calling out for such an explanation.

The logical proposition, that is, that

inferences may be drawn where the level of evidence

reached a certain degree, is recognized in Canada.

In Canada there is a statutory prescription upon

judges commenting on a failure to testify, but that

Weissensteiner(2) 46 9/6/93

has not stopped the Canadian courts from leaving the inference open for a jury to draw inferences from such a failure to testify.

DAWSON J: It is not an inference from a failure to testify.

It is an inference from the absence of evidence.

MR BYRNE:  Yes, explanation or evidence. One passage I

wanted to refer to there is contained in Steinberg

v R, (1931) Ont 222. At page 236 of that report,

Middleton, JA said at about point 3:

It may be that the evidence is very

largely circumstantial, but the actual facts

are known to the accused, and he has the

right, under the laws as they now exist, to

explain them away by his own evidence. For

example, he is not directly shewn to have been

in possession of his gun at the time of the

murder.	He was in possession of it at an
earlier date.	It may have been a mere

coincidence that the victim was shot by this gun, and that the accused was at the time of

the murder only a few yards away. It is

possible that the gun had been stolen from his

residence by the murderer. If so, he could
have testified to the fact, and the jury might

have accepted his explanation. He might have

been able to explain how the cartridge, which

apparently fell from the revolver while he was

in the room, came to be there. He may have a

satisfactory explanation as to how

blood-stained overalls came to be found in his

room. He might be able to deny that he made

the compromising statements to the gaol

inmates, and the jury might readily have

believed that the stories told were

incredible; but, notwithstanding all the

damning chain of evidence, he chooses to

maintain silence.

Importantly for our purposes:

No comment may be made upon this to the jury, but the law does not forbid jurors to

use their intelligence and to consider the

absence of denial or explanation.

TOOHEY J: But those comments were made, Mr Byrne, in the

context of a power to dismiss the appeal where

there had been no miscarriage of justice.

MR BYRNE: That is true, Your Honour.

TOOHEY J:  It does not really throw any light upon the

position of the trial judge vis-a-vis the jury, but

rather the sort of considerations that an appeal

Weissensteiner(2) 47 9/6/93

court might take into account in deciding whether

or not to allow the appeal.

MR BYRNE: That is correct, but it does recognize that the

jury may use that process of reasoning, the process of reasoning which, it is submitted, is the one the learned trial judge invited them to use here, at

its highest.

TOOHEY J: Yes, but that is the point, is it not? No one

could quarrel with the proposition that they can

use their common sense and their intelligence and

no doubt would have regard to the absence of an

explanation. The point is how far the trial judge

is entitled to go in inviting them to do that.

MR BYRNE:  We accept that. The reply is that he is entitled

to point out to them that there was no explanation or contradiction given to the Crown case, and from that inferences flow. That is in effect all he has

done here, adopting, rightly or wrongly, the

passages from May v O'Sullivan.

Just to complete that reference, an appeal was

taken to the Supreme Court of Canada from that

decision.	The comments were specifically affirmed
in that court.	The reference is (1931) 56 CCC 9.

DEANE J: Including the bit about "the law does not forbid

jurors"?

MR BYRNE:  Yes, Your Honour. Some time later in 1976, the

Supreme Court of Canada had to consider a Crown

appeal as to whether there was a misdirection for a

trial judge to direct a jury that no adverse

inference could be drawn to an accused from his

failure to give evidence or testify.

All nine Justices of the Supreme Court of

Canada held that was a misdirection because of the process of reasoning involved, that is, it was open

testify. That, we say, supports that it was open to a jury to draw an inference from the failure to	for the judge to tell them that that inference was
open. That case is - I will not ask Your Honours
to look at it now, but it is Vezeau v Reg, (1976)
28 CCC ( 2d) 81.

Moving, if I may, quickly to the United States

of American, there was some debate in the 1960s
concerning such directions to juries. The relevant

case, firstly, is People v Modesto, (1965) 42 Cal

Rptr 417.	The court there recognized that comments
could be made in certain circumstances.	To just
put that in perspective, the Californian Constitution said this:

Weissensteiner(2) 48 9/6/93

... but in any criminal case whether the

defendant testifies or not, his failure to

explain or deny by his testimony any evidence

or facts in the case against him may be

commented upon by the court and by counsel,

and may be considered by the Court or the

jury.

The Supreme Court of California was of the

view that that only applied where a prima facie

case had been established and where it was within

his power to provide an explanation. At 426

Chief Justice Traynor said this at the top of the

first ·paragraph:

The California comment rule does not subject

the defendant to the trilemma of

self-accusation, perjury, or contempt, for he

remains free not to testify. It does not

substitute an inquisitorial system for an

accusatorial system, for the state must

introduce evidence of every element of the
defendant's guilt before any inference can be
drawn from his silence. It affords no

opportunity for eliciting statements by

inhumane treatment or abuses. It does not

permit the government to disturb the
individual without good cause or deprecate the

inviolability of the human personality and the

right of each individual "to a private enclave

where he may lead a private life".

But His Honour went on to say at the right

hand side of that page, at about point 8:

In this respect it cannot be over-emphasized

that whether or not the court or prosecutor

comments on the defendant's failure to

testify, the jury will draw adverse inferences

therefrom. It will expect the defendant to

present all the evidence he can to escape

conviction, and it will naturally infer that

his failure to explain or deny evidence

against him when the facts are peculiarly
within his knowledge arises from his inability

to do so. "Such an inference is natural and

irresistible. It will be drawn by honest

jurymen, and no instruction will prevent it."

Given that that is an accurate perception of how

juries approach a case such as this, and the

submission is that the direction here goes some way

to limiting what the jury could with the failure,

they were not to infer guilt directly from the

failure; they could simply use that failure to give

evidence, or to explain, as in assessing the

strength of the Crown case.

Weissensteiner(2) 49 9/6/93

MASON CJ:  Mr Byrne, we will adjourn now and resume at 2.15.

AT 12.53 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.20 PM:

MASON CJ: Yes, Mr Byrne.

MR BYRNE:  May it please the Court, I was dealing, prior to

lunch, with the United States authorities. I had

referred Your Honours to one of the passages from

People v Modesto. There was one further passage I wanted to take the Court to. That is at page 427

of that case, the well known statement by Chief

Justice Traynor, the first column on page 427 about

point 2, His Honour said this:

The Constitution is not at war with common sense. It does not compel the court to

instruct the jurors to ignore inferences their

reason dictates.

And at about point 7 on that column, His Honour

said:

The comments - - -

McHUGH J: That is wrong now, is it not, that remark?

MR BYRNE:  The United States Supreme Court found that the

Constitution apparently was at war with common sense, Your Honour, yes, but that, I would submit, is a result of the statutory provision prevailing

there, and here we are dealing with the common law

and inferences which result. So Your Honour is

quite right, but the force of it is not diminished

in a common law jurisdiction, in our submission.

And that is also true for the statement made at

about point 7 that:

The comments merely guide the jury in doing

what it would normally do in any case. In

some cases, comments might aid the defendant

by preventing the jury from giving too much

weight to his refusal to take the stand.

And those principles have application in two ways, we submit: the first is that it justifies a

direction of the sort given here; and secondly,

which I will be dealing with later, the direction

really did no more than invite the jury to apply

Weissensteiner(2) 50 9/6/93

inferences that were open and if that was the
decision reached by this Court, then we would be
submitting that the proviso should act to save the
conviction.

Griffin v California was the case in which the Californian comment rule was held to be

unconstitutional. The majority said in that case

that it was because it imposed a penalty making the

assertion of the privilege of not giving evidence

costly. The appropriate corollary of that in this jurisdiction, I suppose, would be that it could be said that it cuts down the right to silence. Such an argument was dealt with in Reg v Kops in New

South Wales, and also Reg v Boss in Canada, which I have referred to. Such an argument was rejected in

both those jurisdictions. In Griffin v California,

(1965) 380 US 609, which Your Honours, I believe,

have in front of you, Justice Stewart said at

page 621; questioned how:

inferences drawn by a jury will be more

detrimental to a defendant under the limiting

and carefully controlling language of the

instruction -

there given, than -

if the jury were allowed to roam at large with

only its untutored instincts to guide it, to

draw from the defendant's silence broad

inferences of guilt?

He also said at page 623, about point 4:

But whenever in a jury trial a defendant

exercises this constitutional right, the

members of the jury are bound to draw

inferences from his silence. No constitution

can prevent the operation of the human mind.

Without limiting instructions, the danger

exists that the inferences drawn by the jury

may be unfairly broad.

That, in our submission, is a good reason why

limiting instructions of some sort should be given

to juries. We submit that those instructions

should not go so far as instructing a jury to draw

no adverse inference from the failure to give

evidence in particular cases.

Your Honour Justice Deane said during the course of my learned friend's submissions that it

may be necessary for him to succeed that he would

need to show that a positive direction would need to be given, that is, no adverse inference can be

drawn. Such a direction, we submit, would be

Weissensteiner(2) 51 9/6/93

contrary to the law as it stands regarding the

drawing of inferences and contrary to common sense.

At page 9 of our written outline we have

extracted a passage from the Chief Justice of New

South Wales in Reg v Kops at 161, where His Honour

said that the effect of such a direction is that -

they are, in fact, to ignore the logical

result which flows from silence, and are not

to permit their reason to have full sway.

This appears to me to be asking a jury to do

something unnatural, and in fact impossible.

That, we submit, goes to support a limiting direction such as was given here.

Going again from the outline, in Gallagher,

(1974) 59 Cr App R 239, the court there said at

page 244:

For if the jury are entitled to take something

into account, the law cannot be that it is

wrong for a judge to tell the jury that they

are so entitled.

That remark is echoed in cases in New South Wales

in particular where the statutory provisions - - -

McHUGH J:  I am not sure that proposition can be accepted

from Gallagher as a universal proposition. Take

the right of a jury to return a merciful verdict of

manslaughter - it has been said there that a judge

must not tell the jury even though the jury have

got the right to bring in a merciful verdict of

manslaughter, and no doubt there are other cases as

well. Just because the jury are entitled to do it
does not mean the court ought to tell them they

can.

MR BYRNE:  I do not think it goes that far. Not that the

court should tell them but in some circumstances it

cannot be wrong for the court to tell them,

particularly when the primary function of a jury is

drawing inferences, then we would submit that it

could not be wrong for a judge to assist them in

the way they should properly draw inferences.

McHUGH J:  The difficulty I am having is this: I have no

problem with taking the failure of any explanation of the evidence tending to prove a particular fact

into account; my difficulty is with the jump from

drawing the general inference from all the facts,

and that is what the trial judge seems to have told

the jury in this particular case.

Weissensteiner(2) 52 9/6/93

MR BYRNE:  Your Honour means the ultimate conclusion being

guilt.

McHUGH J: Yes, the ultimate inference, particularly at

632-633 he seems to put it - at the bottom of 632

he says you have to:

infer guilt from such facts as it is able to

prove to your satisfaction. Such an inference

may be more safely drawn from the proven facts

when the accused elects not to give evidence

of relevant facts which can be easily

perceived to be in his knowledge.

So the trial judge seems to be instructing the jury

that they take it into account at the stage when

they are dealing with the inferences from the

proven facts.

MR BYRNE:  From the proven facts?

MCHUGH J: Yes.

MR BYRNE:  Those facts being independent initially of any

failure to give an explanation.

McHUGH J: Yes.

MR BYRNE: His Honour, we would submit, is saying no more

than such proven facts standing uncontradicted or
unexplained, then they may more safely draw the

ultimate inference.

McHUGH J: But why? For instance, I imagine in this case

you could say from the accused's failure to explain

his possession of clothing or possession of the

boat, you can draw the inference that he has

stolen - it is unlikely in all the circumstances

that he has been given permission. But why should

you then go and say that we can infer that he has

killed these people?	I can see how you can reason
from that and say, "Well, he's killed them to

conceal the fact that he has stolen", but why

should his failure to give evidence itself rather

than his failure to offer any explanation - that is
the problem I have with it, it is the failure to
give evidence as opposed to the failure to give

explanation.

MR BYRNE:  I can only answer that by saying in the

circumstances of the case here he had given various

explanations.

McHUGH J: It is the most damming case against him, there is

no doubt about that. In fact he had given - as is

pointed out, he had given various explanations.

Weissensteiner(2) 53 9/6/93

MR BYRNE:  So all that the learned trial judge could

sensibly say to the jury is that, in effect, "There

is a plethora of explanations which cannot stand

together."

McHUGH J: Well, he is in possession of the boat, he is in

possession of the possessions, the people have disappeared, they usually keep in contact with

their parents, nobody has ever seen them. To all

outward appearances, he is the only person that has seen them and he has told lie after lie about their

explanation. But why do you then say, "Well, from

those facts it is easy for me to infer that he has
killed.them because he has elected not to give

evidence".

MR BYRNE:  It really comes down to appreciating the trial

and the nature of the trial. One can conclude in

many cases that, as was submitted by our learned

friends, there may be other explanations why he did
not give evidence such as commission of another

offence. Here it is not reasonable, we submit, to

say that he would fail to evidence to conceal the

stealing of a boat when he is charged with two

capital offences. So if there was an explanation

for the capital offences which he is facing - - -

McHUGH J:  I hear what you say. Can I just ask you this

about the practicalities of it? Supposing his

solicitor got in the witness-box and gave evidence

and said he is not giving evidence on the advice of

counsel, he thinks that the Crown case is so weak

et cetera, et cetera. What happens then? Is the

jury required to weight up this explanation?

MR BYRNE:  In our submission, the jury logically can still

have regard to the fact that it is unexplained.

The reason why he has chosen not to explain it

cannot assist him in the ultimate inference drawing

process. Most jurors' minds will draw the adverse

inference.

McHUGH J: Well, supposing it turned out that he had

suffered brain damage and although he was fit to be

tried, he had lost his memory? That evidence could

surely be given, could it not, and if it was given,

would that not negate drawing this inference?

MR BYRNE:	It would there, yes. The rationale of this particular branch of the law is founded upon there
being a prima facie case proved against him and no
impediment to him being able to give an explanation. So, in that example given by Your Honour, there would be a real impediment, so
the inference could not be drawn. But where it is
simply a - - -

Weissensteiner(2) 54 9/6/93

DEANE J: What if he had only given one explanation, could

you then give a direction?

MR BYRNE:  It would make it more difficult for us to submit

that a direction was appropriate in those

circumstances.

DEANE J: And what about in the days when you can make an

unsworn statement in Queensland?

MR BYRNE: Again, it would be difficult to support such a

direction, because something appropriate has been

put in the melting pot.

DEANE J: But, once you have reached that stage, must not

you concede that any reference to electing not to

give evidence, as distinct from the accused has

offered no explanation, must be undesirable?

MR BYRNE:  No, we do not concede that, Your Honour, because

of the factual basis here.

DEANE J: Well, if you do concede it, it leads you into

another area of difficulty, does it not?

MR BYRNE:  Yes. But here - and I was going to come to it

later - one has a factual scenario that not only

were there a number of different stories. He had

admitted that some of them were lies. Although he had not contested at trial that all these versions

were given accurately by the various witnesses,

when questioned by police he had said that he had

not spoken to these people; he had turned away when

they went to ask him about the boat. So when you

add up all those circumstances, the jury is left in

a position where, without evidence in this case

being given, there are very adverse inferences

which will necessarily be drawn. So we submit that

the factual background here is different to the

examples of the unsworn statement or single

explanation given by Your Honour.

McHUGH J:  Mr Byrne, supposing one came to the conclusion

that it would have been proper for the trial judge

to have said they could take into account failure to give any explanation but that it was erroneous to say that they could take into account electing

not to give evidence, would you submit that the

proviso should be applied in that situation?

MR BYRNE: Yes, we would, Your Honour, but that is our

secondary submission in this case. The first

submission really is that the two alternatives put

by Your Honour Justice McHugh and the present case

are really one and the same thing. Emphasis is not

necessarily given to the failure to give evidence.

Although it is put that way because of the

Weissensteiner(2) 55 9/6/93

circumstances, that is simply another way of saying

you have this body of evidence with no proper

explanation having been given.

If I could leave that area and go to

statements made in New Zealand. The first case is

Purdie v Maxwell, (1960) NZLR 599. At page 603, His Honour Justice FB Adams, at about point 8 on

the page, said:

I believe, with respect, that those

passages set forth -

this is the passages in Reg v Burdett -

a fundamental process of reasoning which has

always been applied by the Courts, even in

criminal cases. It has been so in my

experience, subject only to the statutory

provisions which prohibit comment on failure

to testify, but which do not purport to apply,

and; in my opinion, cannot be applied, to the

tribunal itself, whether it be a jury, or a

Judge or a Magistrate.

In Queensland there is no statutory prohibition and, indeed, one of the reasons advanced for a

failure for an accused to testify, other than being

unable to give an explanation, is liability to

being cross-examined on previous convictions.

That is not a consideration in the present

case because there was no basis on which the
discretion could be exercised. Section 15(2) of
the Queensland Evidence Act is the relevant
provision, but because there has been no

allegations or, indeed,-challenge made to Crown

witnesses, there was no basis for the exercise of

discretion to allow such cross-examination.

Finally, at page 605 on that case, at about

point 4 - and this is relevant again to both

propositions we advance, one supporting the

direction and the other being the proviso:

Even where a statute prohibits comment on

failure to testify, there is no privilege of
silence, as no law has ever purported to

prohibit the tribunal of fact, be it jury,

Judge or Magistrate, from drawing such

inferences as must inevitably be drawn from

silence on the part of the accused. If ever

such a statute were passed, it would be, in my

humble opinion, a grievous, unnecessary and

unjustifiable weakening of the arm of the law.

Weissensteiner(2) 56 9/6/93

That would be no different, we submit, to if there

were a requirement that a jury be directed that no

adverse inference could be drawn from the failure

by an accused to give evidence because, as the

numerous authorities point out, jurors will draw

such inferences.

Could I say in passing also that those remarks were approved - those last mentioned remarks were

approved by the New Zealand Court of Appeal in

Trompert v The Police, (1985) 1 NZLR 357. That

case also approved, or mentioned with approval,

Jones v Dunkel from this Court, and Haw Tua Tau from the Judicial Committee of the Privy Council.

I mention at paragraph 21 of our written outline

that May v O'Sullivan - and that is the passage

used by the learned trial judge here - has been

adopted and applied in New Zealand.

To complete the survey of other jurisdictions,

if I can go briefly to Scotland and Knowles v Her

Majesty's Advocate, (1975) JC 6. At page 8 of that

report the Lord Justice General said, at about

point 7, referring to the competency of a judge to

comment:

In our opinion the competency of such comment

may be taken to have been established since

1918 -

referring to a particular case, and at page 9 at

the top -

We accept of course that if comment is made it

should only be made in special circumstances

and if made should be made with care.

He quotes:

"Although a comment of the kind is, in my

view, competent it should be made with

restraint and only where there are special

circumstances which require it and if it is

made with reference to particular evidence

which the Panel might have explained or

contradicted care should be taken that the

evidence is not distorted and that its true

bearing on the defence is properly represented

to the Jury. "

And the second-last sentence:

It was also a case in which certain evidence

was given about matters which, it might

properly be thought, the applicant could have

offered an explanation if there had been one

to offer.

Weissensteiner(2) 57 9/6/93

That, we submit, is a statement in another

jurisdiction which virtually precisely echoes the
law in this area as it is applied in Queensland.

It is only in special circumstances and where the explanation is said to be within the accused's

knowledge that such a direction should be given.

BRENNAN J:  Mr Byrne, can I just ask you this: is the right

of silence of an accused in a criminal trial any

more than a function of the onus of proof?

MR BYRNE:  I am not certain I understand Your Honour's

question.

BRENNAN J:  Where does this right of silence, what does it

mean; does it mean any more than that the onus of

proof is on the Crown?

MR BYRNE:  In the ultimate distillation, that is probably a

fair summation, with respect; it has different

applications, but that is what it boils down to.

BRENNAN J: Is there any other juridical source of a right

of silence of an accused?

MR BYRNE: If I am correctly perceiving Your Honour's

questions, there was concern, back in the days of

Star Chamber in the High Commission, that persons

could - as it was then called, the ex officio
oath - they could be sworn to answer questions

before being told what the allegations against them

were and swore that - they would be sworn to say

that they would correctly answer questions put to

them. So, much of the earlier jurisprudence arose

from that background, but the modern right to

silence, I do not believe, owes a great deal to

that; it is more a function of the correct

placement of the onus of proof in a criminal trial.

BRENNAN J:  I mean, Lord Justice Mustill said that there

were various kinds of rights of silence; the one we

are concerned with here is the right of silence at

the trial. If it is right to say that it is no

more than manifestation of the operation of the

principle that the Crown bears the onus of proof, I

suppose you then say that that says nothing as to

evidential onus.

MR BYRNE:  No, we would say that, and Lord Justice Mustill,

I believe, acknowledged that there were exceptions to that absolute right in the case of failure to

testify.

McHUGH J: Well, in the context of a criminal trial, it

means no more than the accused is not a compellable

witness. That is all it means, does it not?

Weissensteiner(2) 58 9/6/93

MR BYRNE:	Yes.
McHUGH J:	I mean, historically, the accused had no right to

give evidence at all.

MR BYRNE: That is so.

McHUGH J: When the statutory changes were made in the last

century there is given the privilege of giving

evidence - - -

MR BYRNE:  To be competent but not compellable.

McHUGH J: Competent but not compellable.

MR BYRNE:  Yes, and a lot of the debate, if you like, has

arisen from that but the conclusion seems to be in

the Australian and overseas jurisdictions except

where statute prohibits it, that inferences such as

this can - well, if I can rephrase - a trial judge
can direct a jury as to the failure to give

evidence and an inference adverse to the accused

may be drawn from that failure.

McHUGH J:  In one of the cases that was read to us this

morning, I think it was Sparrow, one of the

justices - I think it might have been

Lord Justice Lawton - - -

MR BYRNE:	Yes, it was.
McHUGH J:	- - - said that the failure to give evidence

itself proves nothing. That itself is irrelevant.

MR BYRNE:  We accept that. It is not something which is ·to

be elevated to evidence consistent with any right

to silence. It simply goes to assist the tribunal

in drawing inferences where there is no explanation

given.

DAWSON J:  It really would not matter if he gave evidence

and did not give the explanation. A comment is the

same, really, is it not?

MR BYRNE:  That is recognized in America as well, if he does

not explain the relevant part of the case against

him.

DAWSON J:	The evidential situation is exactly the same.
MR BYRNE:	Yes.

McHUGH J: Is the Queensland doctrine that statements.

tendered by way of admission can be evidence for as

well as against the accused? It seems to be the

contrary in England from one of the cases we were

referred to this morning. But, certainly, in New

South Wales for a good many years has held that if

Weissensteiner(2) 59 9/6/93

the prosecutor tenders a statement then it is

evidence for and against the accused.

MR BYRNE: That is the law in Queensland, to my

understanding, yes.

McHUGH J: Yes.

MR BYRNE:  Now that it has been raised, some of the cases

this morning, if I could just by way of brief reply

say this: my learned friend said that the Judicial

Committee's decision in Tumahole Bereng v R, (1949)

AC 253, went the other way to Haw Tua Tau. In our

submission, it does not. At page 270, about point

4, it is said by the Privy Council - my learned

friend read out at about point 2:

But an accused admits nothing by exercising at

his trial the right which the law gives him of

electing not to deny the charge on oath.

That is similar to what Your Honour Justice McHugh

has just said. But about point 4:

It is, of course, correct to say that these

circumstances - the failure to give evidence

or the giving of false evidence - may bear

against an accused and assist in his

conviction if there is other material

sufficient to sustain a verdict against him.

But if the other material is insufficient

either in its quality or extent they cannot be

used as a make-weight. To hold otherwise

would be to undermine the presumption of

innocence in a manner as repugnant to the

Proclamation of 1938 as to the common law of

England.

Nothing along those lines is argued here, as I understand it. It is not suggested that this is

elevated to evidence or making up deficiencies.

The jury were properly instructed that it was from

the proven facts that they would need to find

guilt.

BRENNAN J:  Mr Byrne, I see that section 618A of the Code

used to deal with the competency and compellability of witnesses and spouses of accused persons, and it is now in the Evidence Act, I gather.

MR BYRNE:  I am pleased to say that is one of the questions

we did anticipate we may be asked, Your Honour.

The history of the provision is this: the Criminal Law Amendment Act of 1892, section 3, first gave an accused the right to be a witness. In 1961 the

Criminal Code and other amendment Acts was brought

in, and that was 618A. That was amended in 1975

Weissensteiner(2) 60 9/6/93

taking away the right of unsworn statements in

Queensland. Then in 1977 the Evidence Act was

proclaimed and section 618A was repealed and

replaced by sections 8 and 15 of the Evidence Act

(Queensland).	The provisions are in similar terms
though.

BRENNAN J:  What are the provisions? Do not bother now.

Perhaps you could provide a copy of them

afterwards.

MR BYRNE:  I will give that undertaking.

MASON CJ: Yes, if you could do that.

MR BYRNE: Generally, on the English cases, it is submitted that they all support the right to comment and the

right to draw inferences in appropriate

circumstances. Waugh, the case referred to by our

learned friends this morning, also supports that
proposition. There is, we submit, no English case
which supports a proposition such as that proposed

here.

In Australia, the common law has always, we

submit, recognized the right to comment upon

failure to give evidence. Without taking

Your Honours to the full articles, if I can refer to J.D. Heydon, "Silence is Evidence" - that is referred to in paragraph 23 of the written outline.

The author there recognizes and traces the

development of that part of the law.

Mr R.S. O'Regan, in an article in

(1965) Crim LR 711, also asserts that such a right

existed at common law.

In some jurisdictions there are limits upon

judicial comment, particularly in New South Wales

and Victoria, but even there the inferences are

said to be open. I have referred to recent cases

in New South Wales and Victoria in the written

outline, paragraph 24, of Nielan and Hallocoglu.

Morgan v Babcock, and if I could refer Your Honours	May v O'Sullivan is the principal case following
briefly to that - Morgan v Babcock & Wilcox Limited, (1939) 43 CLR 163 at 178 - it is part of
this which is picked up by the Full Court in May v
O'Sullivan. At page 178, Justice Isaacs said this:

In Moreau v Federal Commissioner of

Taxation evidence is to be weighed according to the

I quoted the observation of

proof which it was in the power of one side to
have produced, and in the power of the other

to have contradicted." Here the prosecution

could not possibly have produced stronger

Weissensteiner(2) 61 9/6/93

evidence, but it was in the power of the

defence to have repelled the inference that

arises from the evidence as it

stands ..... Consequently, since the affirmative

evidence in the case raises, to say the least,

a strong probability that it was the Company

that paid, or caused to be paid, the bribe

demanded by Maling, the silence of the Company

and its failure to explain materially weakens
any attempt to suggest in its favour possible

hypotheses of innocence.

That is really another expression of the inference- drawing process which, we submit, was properly left

to the jury here.

McHUGH J:  How does that work out? Gratuity:

weakens any attempt to suggest in its favour

possible hypotheses of innocence.

Well, if the jury come to the view there are

reasonable hypotheses consistent with innocence,

their duty is to acquit. Well, how is your

silence, or your failure to explain, have anything

to do, or how does it weaken those hYPotheses of

innocence?

MR BYRNE:  It weakens it, we would say, to this extent: a

jury may well speculate as to what an accused might

have said, or what a representative of an accused

might have said, had he or she given evidence. The

fact that they have not given evidence really cuts down the realm of speculation for a jury in coming up with innocent hypotheses. That is all I believe

His Honour was saying there.

MCHUGH J: Yes.

MR BYRNE:  The difficulty which - or not difficulty, it is

perhaps too strong a word - the situation in New

South Wales where there is a prohibition on judges

explaining to juries that an accused can give
evidence, has been the subject of criticism.	We

say that that is an example of where juries are

accustomed in this country, according to

J.D. Heydon in his article, to receiving strong

directions from trial judges, informing them of the

way they approach both the law and their task of

fact finding. J.D. Heyden takes the view that it

is unusual therefore to find in New South Wales

that juries are not allowed to be directed by

judges as to the use they make of this failure to

give evidence. His Honour Chief Justice Street in

Reg v Greciun-King, (1981) 2 NSWLR 469, at page 471

- the final sentence on 471, His Honour said:

Weissensteiner(2) 62 9/6/93

Unless and until Parliament amends the statute

a trial judge is forbidden to tell a jury what

the law really is even when, as here, he is

asked a specific question by the jury. This

has been suggested to be tantamount to

requiring juries to determine cases with a
partial blindfold upon the true state of the
law. There is much to be said in favour of

bringing the administration of justice out

into the open. Those concerned in the conduct

of criminal trials - certainly the judges, if

not, indeed both judge and counsel - should be

freed from this artificial fetter which can

only serve to mislead the jury as to what the true state of the law is.

Just above point C, His Honour goes on:

Statutory secrets enforced on the courts and

on juries ..... do less than justice to the

commonsense and fairness of juries.

We submit that if the process of reasoning is open

to a jury, it is not correct that a jury should be

given no adverse inference direction, that is, they

should not draw an inference which is open to them

properly on the evidence.

It would seem that the comments of the Court

of Criminal Appeal were not taken up by the

Parliament as similar comments were repeated in

1991 in the other case we have noted there, which I

will not take Your Honours to, but it is

Anastasiou, (1991) 21 NSWLR 394.

McHUGH J: Well, more than that, there was a report in New

South Wales in the early 1970s recommending both

the abolition of the statement from the dock and

the right to comment but - - -

MR BYRNE:  But nothing has happened. And the difficulty is

not as pronounced in Queensland as it is in New

South Wales, but it was raised before, I believe,

by Justice Brennan, what does a trial judge say to

a jury if they come back and ask what use can they make of the failure to give evidence or to give an explanation of the proved facts against an accused.

We submit that the proper direction is along the

lines of what was given here.

I will not take Your Honours through the various Queensland cases dealing with the topic but

the formula which was used here has been used since
the time of May v O'Sullivan in many cases, in many

appropriate cases. Examples of those are in our

paragraph 27, Phillips & Lawrence, Young and

Hartas. We submit that May v O'Sullivan and the

Weissensteiner(2) 63 9/6/93

statements therein are a fair and correct, with

respect, view of the fact-finding process to be

adopted in criminal trials and such reasoning seems

to have been adopted in all other jurisdictions

that we have been able to find.

The first of those is Reg v Guiren in New

South Wales, mentioned briefly earlier. That is

(1962) NSWR 1105. At page 1107 of the judgment

given by the Court of Criminal Appeal, at about

line 27, it is said:

In a criminal case, just as in a civil

case, if the facts proved by the party bearing

the onus - in a criminal case the Crown - are

such that if, standing alone, they would

enable that party to succeed, the absence of

any explanation or of a satisfactory

explanation by the other party is of

importance in the final determination of the

issues.

And going down, if I may, to line 47, the court

went on to say:

But, nonetheless, even in a criminal case it

is legitimate to have regard to the fact that

explanation or satisfactory explanation of the	the accused has given no evidence or inference of guilt from the evidence for the prosecution less unsafe than it might otherwise possibly appear.
That, we submit, is a direct application in

New South Wales of this Court's formula in

May v O'Sullivan. May v O'Sullivan has been

applied in the other cases we have mentioned there,

in South Australia, western Australia and by

His Honour Justice Nettlefold in Tasmania.	The
Court of Criminal Appeal Victoria, in 1986,

similarly applied the decision of May v O'Sullivan.

That is an unreported decision which we handed to

the Court this morning. It is Fulton v Director of

Public Prosecutions, CCA No 43 of 1986. The

relevant passage for present purposes is at page 10

of the unreported decision, a court there saying at

about point 8:

The fact that the appellant did not give

evidence may be taken into account "as a
consideration making the inference of guilt
from the evidence for the prosecution less
unsafe than it might otherwise possible

appear".

Weissensteiner(2) 64 9/6/93

So that formulation seems to be universally applied

throughout Australia.

We conclude our submissions on this aspect by making the submission that the adverse inference

which is drawn or may be drawn by a jury from the

failure to give evidence and in that an

explanation, is not an incident necessarily of the

right to silence or any breach of the right to

silence; it is more an inference drawn from the
strength of the unexplained Crown case. That was

recognized in England and, we submit, by this Court

in Bruce v The Queen, dealing with recent

possession. If I can refer Your Honours to that

report, Bruce v The Queen, 61 ALJR 603. The Court

there was careful to point out that it is not silence which leads to the inference, but the

possession. The second column on page 603 about

point B, this was said:

It is the possession of recently stolen

property in the absence of explanation or
explanatory circumstances, which enables the

inference to be drawn.

Next paragraph:

The accused must have had an opportunity to

give an explanation in circumstances where, if

he is innocent, an explanation might
reasonable be expected.

Now that, we submit, is just an example of the

inference-drawing process in criminal trials. If a

case is such that a point is reached where the

circumstances all add up against an accused, it is

the strength of that evidence which leads the jury
to draw an adverse inference; the strength of the

evidence and the absence of explanation. A similar

formula was adopted in Canada in R v Boss which I

will not take Your Honours back to.

If we may move to the decision in

Petty v The Queen, the submission is that the right

of silence there recognized does not interfere with

the inference-drawing process in cases such as the

present. It is quite logically correct, as was

recognized in Petty, that for a person to be

confronted by a person in authority and not give an

explanation, that from that no inference of guilt

or adverse inference should be drawn against him.

We submit it is quite different in a situation

where he has gone through the process of being

charged of a committal where again no adverse

inference is to be drawn, and through a trial where

he has had the opportunity to not only hear the

Weissensteriner(2) 65 9/6/93

evidence but have the evidence tested on a second

occasion by his or her counsel. If at the end of

that he makes a decision not to testify then it is

not his silence or any right to silence which is
being cut down or used against him, it is the mere

fact that in those circumstances a jury, whatever

directions they are given, are going to draw

adverse inferences against him. Particularly

where, as has been said in May v O'Sullivan and the

other cases, the facts can be perceived as being

within his knowledge and his ability to give an

explanation.

There is nothing in Petty, we submit, that

touches upon this point and, indeed, none of the

cases disapproved in Petty are cases dealing with

adverse inferences being drawn from a failure to

give evidence.

In Gilbert, which was a decision approved by

this Court in Petty, the court there acknowledges,

that is the Court of Appeal in England,

acknowledges that despite the right of silence

being exercised, the failure to give evidence at

trial can be used against an accused person in

appropriate circumstances. So there is nothing

novel about the concept, it has been around for a

long time.

Our final point is that if Your Honours were

against us in respect to the form of the direction

then we would submit that the strength of the Crown

case was such that a conviction would inevitably

flow. That is strengthened, we would submit, by

the fact that the inferences would have been
available against the accused with or without the

direction here, and the inferences were, we submit,

inevitable.

In Gilbert, the English case, the error there

was the worst one, if one can categorize errors in

this area as having degrees of badness. in Gilbert was the ultimate one about raising the The error	failure to give an explanation to police to being
used at trial. Even in those circumstances a
proviso was applied because of the strength of the
case. We say, a fortiori here, where the
inferences were legitimate ones and would have been drawn properly in any case.

We have provided to Your Honours that summary

of the Crown case. I understand that that is

accepted as accurate by our learned friends, so I

do not propose going through that. Those are our

submissions.

MASON CJ: Thank you, Mr Byrne. Mr Nase.

Weissensteiner(2) 66 9/6/93

MR NASE:  Yes, there are some matters in response. Firstly,

Mr Byrne emphasized the infrequent occurrence or

necessity of such a direction as the May v

O'Sullivan inspired direction but, as a matter of

logic, the doctrine really is artificially limited

by confining it to circumstantial cases. Suppose

that there were two men in the world of all the

people in the world who could give evidence about a
particular transaction. One gives evidence for the
prosecution in a criminal trial and the other is

the accused. What would prevent that direction's

extension to that type of situation if the

direction is correct at all?

The fact that it has been artificially limited

in those who support it to what are said to be very

special circumstances really is an artificial

limitation upon the doctrine if the doctrine is

correct.

BRENNAN J:	What is the doctrine?
MR NASE:	If I could recite what was said in May v

O'Sullivan, that in the circumstances defined, if the conditions are satisfied, then one can more

readily act on the circumstantial c·ase or on the

prosecution evidence.

BRENNAN J:  Is that the only thing other than that where the

facts of the case are such that an explanation is

as a matter of common sense called for, the absence

of the explanation by the accused at his trial can

be taken into consideration in determining whether

or not to find the accused guilty.

MR NASE:  I regret to say that I would take issue with

Your Honour's statement. In my submission, if a

jury were directed in that way they would be

wrongly directed. The direction in this case

pointed out that the evidence that the Crown had

was uncontradicted and one accepts that as a

correct direction.

direction aimed at the accused's silence at the To continue with an additional

trial is to attach, in my submission, evidential

value to the exercise of the right to silence.

It is one thing for evidence to stand alone

and in that sense be uncontradicted. It is another

thing for a jury to be told that the accused has, as it were as a matter of evidence, not explained

or provided an explanation in answer to that case.

A number of American and Canadian cases, or

extracts from them, were referred to. In both

Canada and the United States, of course, there is a

prohibition upon judicial comment and that

prohibition has been respected by the courts in

Weissensteiner(2) 67 9/6/93

those lands. The various extracts have an air of

someone calling out from the safety of the

sidelines. For example, at page 5 of the outline

of argument, one of the members of the court in

Boss cited with approval the following statement by one Professor Delisle -

"If the Crown's case strongly indicates guilt,

and common sense suggests that an explanation would be forthcoming from one innocent of the

charge, no rule of law can effectively
legislate against the drawing of an adverse

inference from a -

failure to testify. If one suggests that

represents an acceptable direction then, in my

submission, such a submission would be clearly

misconceived because that would be, in the baldest

way, inviting the jury to draw an inference of

guilt from the exercise of the right to silence at

the trial.

Indeed, the case cited above, Vezeau, seems to

contain the same vice, and that is why the comment

is made that there seems to be an element of, from

the safety of the sidelines, calling out that a

certain inference is plain. At page 7, there was a passage cited from Justice Stewart. That, in fact,

was a dissenting judgment by the learned judge. common law right in a judge to comment and, of

course, in the absence of any statutory prohibition

there must be a right to comment. But that is not

to be confused with a right to comment adversely on

the exercise of the right to silence.

For example, in Mr O'Regan's essay, which was

cited, the first proposition that Mr O'Regan

formulated, at page 717, (1965) Crim LR, was, after

reviewing the cases:

1. The failure of an accused person to testify

is not an admission of guilt and no inference

of guilt may be drawn from such a failure to

testify.

It may well be, in formulating 2, 3 and 4, that the

author is guilty of some confusion in his thinking

and the endeavour was made to submit that there was

some confusion in the thinking of the court in

Sparrow in, on the one hand, denying that the

exercise of the right had any evidentiary

significance and, on the other hand, suggesting

that a failure to testify could be the subject of

strong comment. In relation to the case

itself - - -

Weissensteiner(2) 68 9/6/93

BRENNAN J:  Mr Nase, could I just ask you whether you find

any foundation for the right of silence at the

trial other than the onus of proof?

MR NASE:  With respect, I would not rest it on the onus of

proof. Because the right to testify at the trial was a right conferred at the end of last century,

it may be difficult to identify its origin. In an

article by a Mr Greer the author refers to work

done suggesting three different origins of the

right to silence, which includes the - I do not

intend to refer the Court to the passage, but there

is a d_iscussion of the historical antecedents of

the right. In my submission, it is perhaps better

to regard it as an aspect of the privilege against

self-incrimination and ultimately its justification

may have to rest upon the view one takes of the

relationship between the individual and the State,

and the extent to which the State can use the

individual as a source of evidence, and in turn

that may depend ultimately upon the placing of

value on the freedom, or integrity or personality

of the individual.

There is a discussion of those issues in the

article by Mr Galligan, "The Right to Silence

Reconsidered". I did give the Court the reference

to that article earlier. In my submission, it is

not a function of the onus of proof but its sources are found in more deep-seated principles in the way

in which our system of criminal justice operates.

The case that was presented against the present appellant, in my submission, was a

circumstantial case that consisted, essentially, of

four circumstances. Firstly, the circumstance he

was found in possession of and living in the yacht

at the Marshall Islands when it was recovered in

August 1990. Secondly, the circumstance he gave, what the prosecution would argue, was

unsatisfactory accounts of his possession of the boat and his last contact with Bayerl and Zack.	Thirdly, the circumstance that Bayerl and Zack had	not communicated with or been seen by anyone since
late 1989. Fourthly, the circumstance that the
appellant at different times made a number of false
statements concerning the whereabouts of Zack and Bayerl and the circumstances of his possession of the yacht.

In my submission, the case was not one that in

any sense at all attracted such a direction as the

one given here. The true significance of the

evidence was that the Crown was able to point to fairly consistent statements that he made to the

police that occupy almost 100 pages of the appeal

record where he gave an explanation that they had

Weissensteiner(2) 69 9/6/93

gone to Western Australia, together with the other

major explanation that he gave to the two people

that he confided in, and invite the jury to view as
part of a circumstantial case that he had given

unsatisfactory accounts of his possession of the

boat and his last contact with Bayerl and Zack.

The giving of the direction, in my respectful

submission, was entirely misconceived and, if

anything, would tend to confuse the jury and direct

them on, perhaps, a course of looking at the

evidence which would almost inevitably involve them

in attaching evidentiary significance to the fact

the appellant did not give evidence in the trial.

For those reasons, in my submission, it is not

a case in which the proviso should be invoked. There are no other matters I wish to reply to.

MASON CJ: Yes, thank you, Mr Nase. The Court will consider

its decision in this matter.

AT 3.24 PM THE MATTER WAS ADJOURNED SINE DIE

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