Weissensteiner v The Queen

[1993] HCATrans 38

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B32 of 1992

B e t w e e n -

JOHANN MANFRED WEISSENSTEINER

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

DEANE J

DAWSON J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON THURSDAY, 4 MARCH 1993, AT 11.41 AM

Copyright in the High Court of Australia

Weissensteiner 1 4/3/93

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

MR A.J. RAFTER, for the applicant. (instructed by

J.A. Hodgins, Director, Legal Aid Office

(Queensland))

MR R.N. MILLER, QC:  May it please the Court, I appear with

MR M.J. BYRNE, for the respondent. (instructed by

D. Field, Solicitor to Director of

Prosecutions (Queensland))

DEANE J: Yes.

MR NASE:  The principal special leave point is whether a

direction that a jury could more safely draw the

inference of guilt in a circumstantial case from a

failure of the accused to give evidence when

important facts may be assumed to be within his

knowledge, whether that is a correct direction and,

in particular, whether such a direction to a jury

can be regarded as correct in the light of the

approach of this Court in Petty and Maiden.

The leading judgment in the Court of Appeal

was given by Justice Pincus. The question I have

stated was recognized by His Honour as the

principal question in the appeal and as a difficult

question on which opinions might differ.

The answer to the question involves the

resolution of an apparent conflict between the

approach of this Court to the right of silence in

Petty and Maiden, and the cases upon which the

direction that I have mentioned is based.

The case, if I may deal with it briefly, was a

circumstantial one. The principal features of it

are set out in paragraph 1 of the outline of

argument. In relation to that circumstantial case,	the trial judge gave the direction that appears at
Pincus J. If I could invite the Court to read the
passage.

page 12 of the application book in the judgment of

It was submitted before the trial judge that

that direction should be withdrawn, but since it

Petty and
was incompatible with expressions in some detail in his examination of the law in an endeavour to answer the question raised within the

appeal. His Honour commenced with the judgment of

this Court in May v O'Sullivan, at page 14 of the

application book.

May v O'Sullivan was a case that was concerned

with the onus of proof in committal hearings, and

was not a case that was concerned with what

Weissensteiner 2 4/3/93

directions should be given to a jury. None the

less, at one point in the judgment of the Court,

the passage set out at the bottom of page 14 of the

application book in His Honour's judgment appears:

"In deciding this question -

that is, whether the charges proved to the criminal

standard of beyond a reasonable doubt -

it may in some cases be legitimate ..... 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.

His Honour traced similar observations in a number

of decided cases. At page 15 His Honour discerned the same sentiment in the Victorian case of Bruce. His Honour then moved to a number of Queensland

cases.

DEANE J:	Would you disagree with what the Court said in May
v O'Sullivan?
MR NASE:	The distinction has to be drawn between, on the

one hand, the ordinary processes of reasoning that
one is led to and, on the other hand, the question

of what direction should be given to a jury in
order to preserve and protect the accused person's right to silence. May v O'Sullivan was not a case

that was concerned with what direction should be

given to a jury - - -

DEANE J:  I appreciate that. Would you dispute what was

said in May v O'Sullivan?

MR NASE:  If it is some homely advice as to the way one

approaches evidence - - -

DAWSON J: It is not homely advice. It is advice of a

properly constituted court.	It may be obiter in
the circumstances, but - - -

MR NASE:  Yes, that is so.

DEANE J: But it is really self-evident, is it not?

MR NASE: It is self-evident subject to one qualification,

and that is that there may be reasons other than a

consciousness of guilt that would lead one not to

give evidence. But as a way of assessing evidence

it would seem to accord with ordinary common sense.

Weissensteiner 3 4/3/93

DEANE J: But if you have evidence that leads to an

inference of guilt, it is going to be safer to draw

the inference if the accused has not led evidence

that leads to an inference of innocence, surely.	I
mean, take an alibi case.

MR NASE: In my submission, as a general observation on

evidence, it would seem to be a correct

proposition.

DAWSON J: But it is inconsistent with Petty and Maiden, is

it not?

MR NASE:  It is inconsistent with Petty and Maiden, and

there is the additional problem - - -

DEANE J: Justice Dawson quite obviously was not a member of

the Court in -

DAWSON J:  I dissented.

DEANE J: Justice Dawson dissented, at least. He was not a

member of the majority.

MR NASE:  Yes, Justice Dawson was dissenting in Petty and

Maiden. There is the additional problem that has

been referred to, and that is that for reasons

other than a consciousness of guilt, an accused

person may decline to give evidence. But there may

be a distinction that can be drawn in looking at
evidence and in explicitly drawing an inference

adverse to an accused from the exercise of his

right not to give evidence. That may be a possible

way of reconciling much of the cases.

DEANE J:  What do you particularly rely on in Petty and

Maiden?

MR NASE: Large passages of it, if it please Your Honour.

If I can move to it: in the judgment of

Chief Justice Mason and Your Honours

Justices Deane and Toohey and Justice McHugh, there

is a statement of the right to silence as a

fundamental rule of the common law. It is said at

page 99, a little above half-way down that page:

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. To draw such an adverse

inference would be to erode the right of

silence or to render it valueless.

Again, at page 101 it was said, in dismissing a

particular distinction that was sought to be relied

upon, three lines from the top of the page:

Weissensteiner 4 4/3/93

And, what is of more importance, 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 ..... 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 ..... it would be

to convert the right to remain silent into a

source of entrapment.

The submission is made that in principle the right

to silence should extend to an accused person's decision to give or not to give evidence at his

trial and that an incident of that right is that no

adverse inference should be drawn from a decision

not to exercise the right to give evidence in the

trial.

DAWSON J:  In reality what you must say is that Petty and

Maiden boils down to this, that you cannot take the exercise of the right to silence into account in

evaluating the other evidence in the case.

MR NASE:  It may be possible to reframe the proposition

Your Honour has stated.

DAWSON J:  Because what was said in Petty and Maiden was the

fact that he told his story for the first time in

the dock, that is that he had maintained his

silence before that, was something which. could be

taken into account in evaluating the evidence from

the dock. What is said here is that you can take

into account his failure to give evidence in the

case in evaluating the evidence which was called on

behalf of the prosecution.

MR NASE:  Yes, and if that approach is correct it calls into

question the direction given in this case and the

cases upon which the direction was based.

DAWSON J: Notwithstanding it is a direction that has been

given for years and is supported by authority.

MR NASE:  I would accept what Your Honour says, although not

given in all jurisdiction for years, since in many

jurisdictions there is no right to comment upon the

exercise of the accused's right to give or not to

give evidence.

DAWSON J: Yes.

MR NASE:  And it woild seem that the doctrine has been

largely developed in terms of a direction that may

be given to a jury in a number of Queensland cases.

It may be possible to draw a distinction between

the way in which one can handle evidence and the

Weissensteiner 4/3/93

directions that should be given to a jury, and in

order to preserve an accused's right to silence the policy of the law, in my submission, should require

that the jury not be invited to draw an adverse

inference from an accused person's decision not to

give evidence in his trial.

If I could move briefly to

Mr Justice Brennan's judgment in Petty and Maiden,

perhaps one sees the rationale for the right to

silence at page 107, in the middle third of the

page, the block that commences:

The right of silence, as it is stated above,

has not always been fully acknowledged, but it

is only by a firm adherence to the rule as so

stated that effect is given to the policy of

the common law that a suspect's "fault [is]

not to be wrung out of himself, but rather to

be discovered by other means, and other men".

Where a jury might have had regard to an accused's earlier silence in evaluating

evidence given by him at the trial,

recognition of the right of silence precludes

the jury from taking that silence into

account.

And, in my submission, that expresses part of the

rationale of the right to silence, and that

rationale extends to protect the accused's right to

give or not to give evidence in his trial.

DAWSON J: What would you say if the jury came back in this

case and asked the question of the trial judge,

"Well, now, look, are we entitled to take into

account the fact that the accused has not told his

story in evaluating the evidence which has been

given by the prosection?", what should the trial

judge reply to that question?

MR NASE:  The trial judge should direct them that in every

criminal trial an accused has the right either to
give or not to give evidence. That right might be

exercised for any one of a number of reasons - if I

may speak rather freely now - and that it would be

impossible in the particular case to conclude that

the exercise of the right to silence, in that

particular case, arose out of a consciousness of

guilt on his part, and that, therefore, no adverse

inference should be drawn from the fact of the
exercise of the right to silence in the particular

case.

DAWSON J: And if the jury then said, "We accept all that,

but are we not entitled to say, well, the evidence

is more easily accepted by the prosecution in the

Weissensteiner 6 4/3/93

absence of any denial by the accused, can we do

that?".

MR NASE:  The judge, in those circumstances - and I am

rather sorry I had not thought of these questions

before coming here - would direct the jury that in

arriving at their verdict they are confined to the

evidence that has been placed before them and they

must look at the evidence that is in fact placed

before them and look at the inferences that can

naturally be drawn from that body of evidence.

Although an answer of that sort does not directly

answer the jury's question, in my submission it

effectively answers their question.

DAWSON J: Well, there is a lot of hocus-pocus about that,

is there not?

MR NASE: Well, no, Your Honour. The alternative is to

direct the jury that they are entitled to draw the inference that the accused in that particular case failed to enter the witness box out of a

consciousness of guilt on his part and - -

DAWSON J: It is not a question of consciousness of guilt at

all, it is a question of whether it is easier to

accept evidence which is not denied than it is to accept evidence which is denied, and common sense

would tell you that the answer is yes.

MR NASE:  It may depend upon exactly how one formulates the

answer to the jury but, in my submission, however

the answer is formulated, on one hand it should be

made clear to them that no adverse inference can be

drawn from the fact of the exercise of the

accused's right to give or not to give evidence

and, on the other hand, that their verdict must be

based upon the evidence and, I suppose, one aspect

of the evidence is that it may be entirely from one

side. And that would seem, in my submission, to be

a rational way to approach the question of
directing the jury.	I do not know that I have

satisfactorily answered Your Honour's question.

DAWSON J: Well, that would be difficult, in the

circumstances.

MR NASE: But, in my submission, that or a refinement of

that answer would be a satisfactory and

intelligible way of approaching such questions by a

jury.

DAWSON J:	I follow what you are saying.
MR NASE:	In fact, while I have Your Honour Justice Dawson's

attention, I had proposed to submit that, in a

passage in Petty and Maiden, Your Honour seemed to

Weissensteiner 7 4/3/93

accept that the right to silence extended to the decision of whether or not to give evidence at a

criminal trial. I hope I am not reading too much

into the passage, but it is a passage at page 118,

commencing in the middle of the page:

The right to silence is a convenient, if

somewhat imprecise, expression.

DAWSON J: But that is the point. That is the distinction,

you see. You cannot draw any inference adverse to the accused from the mere exercise of the right to silence, but the task remains with the jury of

evaluating the evidence that is there and you

cannot ignore what is a fact of life in performing

that exercise, namely that you had, in Petty and

Maiden, no statement up to the time of the statement in the dock or, in the particular case

here, you have no denial, no evidence at all, from

the accused. Those are the circumstances, like it

or not, in which you have to evaluate the evidence.

But that is not to draw an inference against the

accused by reason of the exercise of the right to

silence. He is entitled to do that, for a number

of reasons, whatever they may be.

MR NASE:  It may be that the best answer to Your Honour's

question is found in the judgment of

Justice Gaudron at page 128 where Her Honour says,

in the paragraph at the foot of that page:

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 -

or, applying it to this case -

that reasoning process has no place in a

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 ..... 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.

And really, the passage continues to about half-way

down page 129.

Those comments supply the explanation, in my

submission, for a distinction between ways of

assessing evidence and what directions should be

given to a jury. When, as Your Honours may know,

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the right to give evidence was first given to

accused persons, it was only at the very end of

last century. And that was because of a fear that

people at that time held, that it may turn into a trap because of the natural tendency of juries to

infer that the reason the accused stayed away from

the witness-box was because of a consciousness of

guilt on his part. That is the explanation for the

various pieces of legislation that prohibit comment

upon whether or not the accused has given evidence

in his trial.

DEANE J:  Mr Nase, I think you have fairly enough identified

the first point that you would wish to raise if

leave were granted.

MR NASE:  Now, if I could take the Court to paragraph 9 of

the outline. To perhaps make this additional

submission more clearly than I have, it is

submitted that no inference of consciousness of

guilt should be drawn from a decision not to

exercise the right to give evidence by an accused

person, firstly, because the inference is

incompatible with the right to silence, and I have

dealt with that, and secondly, because an accused

person may choose not to exercise the right to give

evidence for reasons other than consciousness of

guilt, out of apprehension he might be examined on

his previous convictions, or for a reason personal

to him, for example, to protect the role of another

person in the crime itself, or for general tactical

reasons.

Those of us who appear for accused persons

regularly find that they ask for advice on whether

or not they should give evidence. And the decision

that is made is inevitably a tactical one

unrelated, in the ordinary case, to whether or

not - or remote from whether or not that particular

accused is affected by consciousness of guilt.

So, in my submission, there is a fundamental

difficulty in pointing to the accused's exercise of

his right to give evidence or not to give evidence.

DAWSON J:  I really do not follow that, Mr Nase. Why cannot

the judge say, "Now look, ·you do not know why the

accused chose not to give evidence. It may have

been for a number of reasons, such as the reasons

you have given - he was told to do so by his legal

advisors, or to protect someone else, and you must

draw no inference against him by that fact". But

it remains, that the evidence which is given by the

Crown is uncontradicted and you may, for that

reason, find it easier to accept.	What would be
wrong with that?

Weissensteiner 9 4/3/93

MR NASE:  I have no difficulty with that, but that was not

the direction given in this case. The direction in

this case is that the jury could infer from the
accused's failure, and the word "failure" was used
twice, to give evidence that they could infer from
his failure to give evidence guilt as a conclusion

that they could draw more safely from the

circumstantial case.

DAWSON J: What was said was that an inference may be more

safely drawn from the proven facts when an accused

person elects not to give evidence of relevant

facts which can easily be perceived must be within

his knowledge.

MR NASE:  Your Honour, once one introduces, or invites,

scrutiny as to the decision whether or not to give

evidence one, in reality, is inviting the jury to

infer that the decision not to give evidence arose

from a consciousness of guilt on the accused's

part.

DAWSON J: But that is not what His Honour said, he said you

cannot infer guilt simply from his failure to give

evidence, but that circumstance can be taken into

account in looking at the evidence of the Crown.

You can safely make inferences from that evidence

in the absence of any evidence from the accused.

MR NASE:	I submit otherwise on looking at the direction.
DAWSON J:	Can you point to the particular sentence?
MR NASE:	The second sentence.
TOOHEY J:	On page 12, line 30.
MR NASE:	The direction is:

The consequence of that failure is this:

You can more safely draw from the proven facts

the inference of guilt. In my submission, that is

very different from telling the jury that when they look at the evidence that they may only look at the

evidence before them and perhaps comment that that
evidence is uncontradicted by any other evidence.

It is, in my submission, a different thing to focus

on the accused's decision whether or not to give

evidence in the trial and ask the jury to infer

from that decision, infer guilt more safely from

that decision, when looking at the body of

evidence.

DAWSON J:  I think that is just what the trial judge did not

do.

Weissensteiner 10 4/3/93

MR NASE:  I am sorry, I make a contrary submission, but

unsuccessfully. The point in paragraph 9 relating

to other reasons is referred to by Justice Windeyer

in Bridge at page 824 and 825, and if I may read

the passage very briefly to the Court. At the very
foot of page 824 His Honour said - I am sorry. It

is only a very short passage.

TOOHEY J: There is something wrong with that.

MR NASE: Unless I have the wrong - I have the ALR.	I see.
DEANE J:	We have the Commonwealth Law Reports.
MR NASE:	I see. I will do my best to find it.

TOOHEY J: Will you give us the opening sentence of the

paragraph?

MR NASE:  The opening sentence in the paragraph is "For

various reasons other than guilt of the crime

charged". Yes, it is on page 614. In the course

of discussing the problem, His Honour said:

For various reasons other than guilt of

the crime charged a man may decline to go into
the witness box and submit to cross-

examination. And the fundamental problem in

the background of both the enactments of

legislatures and the decisions of courts has

been, and is, to reconcile the traditional

repugnance aroused by any form of compulsory

self-incrimination with the adverse inferences

that insistently arise from a failure to

answer a charge.

Those are my submissions on the principal point.

If the Court is inclined to grant special

leave to consider that direction and whether or not

it is compatible with what was said in Petty and

Maiden, I would also ask the Court to give leave to

argue the jurisdictional point. Does the Court

want to hear argument from me in relation to the

jurisdictional point?

DEANE J:  If you want to say anything about it, do so. I

would have thought from your point of view the less

said the better.

MR NASE:  Yes, I think I will adopt that position. Thank

you, Your Honour, for that advice.

DEANE J: Yes, Mr Miller.

MR MILLER: If the Court pleases, I will come straight to

the point. In my submission, Petty's case amounts

Weissensteiner 11 4/3/93

to no more this:  a ruling that the exercise of a

person's right to silence cannot be used against

him in only two situations; one where he has

exercised that right when questioned by a person in

authority and, two, where he has had nothing to say

at committal proceedings. It does not bear upon
the question of his having refused or refrained
from giving evidence at his trial. It does not

purport to lay down that in a trial situation the

failure of an accused to give evidence can never be

used as a matter for consideration by the jury.

Petty's case, in my submission, leaves

untouched the statement of this Court in May v

O'Sullivan and the rulings of other courts that a

refusal to go into the witness-box in an

appropriate case might legitimately be a matter

that a jury can take into consideration and which

might be commented upon by the trial judge.

Your Honour Mr Justice Dawson asked my learned friend the question whether, in accordance with

what was said in May v O'Sullivan, jurors might ask

themselves that very question. My answer is, "Yes,

they can ask that question of themselves, and they

can ask a question of the judge whether in law they

are entitled to take his failure to give evidence
into consideration as a matter worthy of some

weight." If the jury are entitled to ask the

judge, the judge must be truthful with them, and he

must tell them, "Yes, you may"; otherwise we have

a nonsensical situation.

DEANE J:  Mr Miller, in a genuine effort to be helpful, can

I direct your attention to what seems to me to be

the matter that you need to deal with, and that is

this: on any approach, I would have thought the

question involved in this case is an important one

in that it is obviously one of significance in many

trials. Now, that being so, in the light of	Justice Pincus's judgment and the dissenting
judgment of Mr Justice Shepherdson, can it really be said that there is not an arguable matter which
warrants the attention of this Court?

MR MILLER:  Not in the circumstances of this particular

case, I would submit, Your Honour.

DEANE J: I see. So, really, your answer to what I have

said is perhaps theoretically yes, but not in this

particular case.

MR NASE:  Yes, I would like it determined whether, in cases

apart from those which have been given the

has generally, in recent years, been restricted to

imprimatur by the Court of Criminal Appeal in

Weissensteiner 12 4/3/93

those cases where the case against the accused is

circumstantial only. Certain statements which have

fallen from Your Honour Mr Justice Dawson this

morning seem to suggest that it would be

appropriate and, indeed, perhaps necessary in some

cases, for a judge to make a comment on the failure

of the accused to give evidence. It has not been

the practice in Queensland, in recent years - and I

am going back 30 years - for either the prosecutor

or the judge at trial to draw attention to the fact

that the accused has got the right to give evidence

and has failed to do so.

DAWSON J:  I did not mean to suggest that any such comment

should be made, as a matter of course or at all,

for that matter. That is not the question here. The question here is, can the fact be taken into

account in the evaluation of the prosecution

evidence.

MR MILLER:  The answer is yes, in my submission. The judge

was entitled to say what he did say to the jury.

There cannot be any chance of a miscarriage of

justice in the circumstances of this case.

DAWSON J: Indeed, the comment that is usually made in

relation to the accused's failure to give evidence

is not a comment on the failure but a comment to

the effect that he has a right to maintain his

silence right up to this Court.

MR MILLER:	And no inference adverse to him can be drawn.
DAWSON J:	And that is a proper direction.

MR MILLER: But the judge here does not say anything to

contradict that, he just says it is a matter which

they might take into consideration, in line with

what was said in May v O'Sullivan.

Bridge's case was quoted by my learned friend.

If I can find it again there is a part which I

would like to draw to Your Honours' attention. It

is a statement by Mr Justice Windeyer, and it is at

page 615 of the report:

But the New South Wales Act does not seek to

prevent juries taking into consideration the

failure of an accused person to give evidence.

All that it does is to forbid the prosecution or the judge reminding them that they may do so.

It is my submission that there is nothing in Petty

and Maiden's case which is designed to restrict

what was said in May v O'Sullivan. They are not in

conflict, they are not in collision. Petty and

Weissensteiner 13 4/3/93

Maiden, as I have submitted, is intended to apply

to only certain circumstances where the right has

been in fact exercised, and it has got nothing to

do with an accused refraining or refusing to give

evidence at his trial. In my submission, special

leave should be refused.

DEANE J: Thank you, Mr Miller. In this case there will be

a grant of special leave to appeal and the Court so

orders.

AT 12.20 PM THE MATTER WAS ADJOURNED SINE DIE

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