Woon v The Queen

[1964] HCA 23

HIGH COURT OF AUSTRALIA

Kitto, Taylor, Menzies, Windeyer and Owen JJ.

WOON v. THE QUEEN

(1964) 109 CLR 529

9 April 1964

Criminal Law

Criminal Law—Evidence—Interrogation of accused—Statements put by police interrogation—Not adopted by accused—Questions answered in part—Whether consciousness of guilt shown by accused.

Decisions

April 9.
The following written judgments were delivered:-
KITTO J. On 28th May 1962 a branch office of the E.S. &A. Bank Ltd., at the corner of Russell Street and Flinders Lane in Melbourne, was broken into and money and other valuables, including Commonwealth one pound notes to an amount of 35,000 pounds or thereabouts, were stolen. The applicant and three other persons, named respectively Radcliffe, Stuart and Shirreff, were arrested some months later in connexion with the crime. In September 1963 all four were presented on a charge of breaking and entering a counting-house and stealing therein. After a lengthy trial they were all convicted. The applicant alone appealed, and his appeal was dismissed by the Court of Criminal Appeal. He now seeks special leave to appeal to this Court upon the two grounds that the evidence against him should not have been left to the jury and that the learned trial Judge's charge contained a direction that was wrong in law. (at p534)

2. The breaking, entering and stealing were proved, and the only substantial question in regard to the applicant was whether he had participated in the crime. At the trial the three others denied that they were involved in any way, and consistently with their case they said nothing to implicate the applicant. He gave no evidence himself. The case against him depended upon evidence given by police officers as to his answers to statements and questions that had been put to him during two interrogations. Some of the statements and questions went directly to the question of his complicity in the crime charged; others dealt with subordinate matters. The learned trial Judge, warning the jury repeatedly that they must acquit the applicant unless satisfied beyond reasonable doubt of the facts alleged against him, directed the jury that there was no evidence of any "express, explicit or direct admission" that he was one of the party that had broken into the bank; but his Honour left it to them to consider whether any of the answers the applicant elected to give persuaded them beyond reasonable doubt that he was conscious of guilt as having been a party to the crime. His Honour drew particular attention to one statement that the applicant made to the police, namely that he had never heard of Radcliffe, and invited the jury to consider it together with subsequent admissions by the applicant that he not only knew Radcliffe but in the interval between the crime and the interrogations had sent telegrams to Radcliffe, using false names for Radcliffe and himself and false addresses, and expressed in cryptic terms appearing to indicate that the two of them were involved together in some nefarious enterprise. The facts that these telegrams passed and that the applicant, being questioned about the breaking and entering of the bank on 28th May 1962, denied at first that he knew Radcliffe, were put to the jury as fit for consideration in the context of the whole of the interrogations, his Honour remarking that "a man may not intend to show his hand, gentlemen, but on the other hand he may just do that very thing". (at p534)

3. One observation should be made at once concerning the learned Judge's recital to the jury of the questions and answers which the police witnesses had recounted in their evidence. The interrogations had been preceded by a clear statement to the applicant that he was not obliged to say anything. His Honour reminded the jury of this fact, and he made it clear to them, not only generally before he went through the evidence but again specifically in relation to each answer which was or amounted to a refusal to answer, that the applicant was within his rights in saying nothing and that no adverse inference could properly be drawn from refusals to answer. But he added, in effect, that such answers as the applicant chose to give might be considered by the jury, though not amounting to admissions of any of the facts suggested by the police, for the purpose of seeing whether they revealed a consciousness on the part of the applicant that he was guilty of the crime about which he was being questioned. If the jury had been left under an impression that they were entitled to draw inferences against the applicant from mere refusals to answer, or from statements that amounted only to refusals to answer, there would have been serious fault to find with the charge: see R. v. Leckey (1944) KB 80, at p 86 ; R. v. Twist (1954) VLR 121 per Smith J. (1954) VLR, at p 130 ; but the repeated directions the Judge gave on the topic were as clear as could be wished. Indeed the applicant does not contend otherwise. What he complains of is that the Judge, taking the jury as he did in detail through the evidence of the interrogations, left them with the question whether the applicant by the replies he chose to make disclosed, albeit unwittingly, that he was conscious of having been a member of the party that broke into the bank on the relevant occasion. There was, I think, ample room for the jury to find in some of the answers the applicant gave, considered in the light of the facts he admitted as to the telegrams, sufficiently convincing indications of a guilty conscience to satisfy them beyond reasonable doubt that he was in fact guilty. If, therefore, it is the law that an accused person's answers to matter put to him may properly be used, not only for the sake of any admissions or recognitions they may contain or imply concerning particular facts, but also for the sake of any unintended proof they may afford that the accused person was afflicted with a consciousness of guilt of the crime alleged against him, the applicant's contention that there was no evidence against him fit to be left to the jury must necessarily fail. (at p535)

4. We are not, of course, invited to hold that the evidence of the interrogations was inadmissible. Its admissibility is clear from the judgments in this Court in R. v. Grills (1910) 11 CLR 400 and in the House of Lords in R. v. Christie (1914) AC 545 . But an argument is erected upon the passage in Lord Atkinson's judgment in the latter case in which his Lordship laid it down as a rule of law that "a statement made in the presence of an accused person, even upon an occasion which should be expected reasonably to call for some explanation or denial from him, is not evidence against him of the facts stated save so far as he accepts the statement, so as to make it, in effect, his own" (1914) AC, at p 554 . The argument is that in the present case the jury was entitled to consider the evidence of the interrogations for one purpose and one purpose only, namely to decide whether the applicant accepted any of the particular facts put to him so as to adopt as his own the statement of them by the police. The answer, I think, is that the argument misreads the passage upon which it is based. Lord Atkinson was dealing only with the value of a statement made in the presence of an accused person as "evidence against him of the facts stated". The passage as a whole shows two things: (a) that the making of a statement in the presence of an accused person is never by itself evidence that the statement is true, and (b) that the accused person's reaction or failure to react to the making of the statement may, according to the circumstances, afford evidence that he admits that the statement or some part of it is true. It is a different question altogether whether the reaction of an accused person to the making of a statement in his presence may afford evidence of something other than the facts suggested in the statement. Lord Reading said specifically that it may. "It might well be", he said (1914) AC, at pp 565, 566 , "that the prosecution wished to give evidence of such a statement in order to prove the conduct and demeanour of the accused when hearing the statement as a relevant fact in the particular case, notwithstanding that it did not amount either to an acknowledgement or some evidence of an acknowledgement of any part of the truth of the statement". His Lordship added that he thought it impossible to lay down any general rule to be applied to all such cases, save the principle of strict law to which he had referred earlier (1914) AC, at pp 563, 564 , namely that a statement made in the presence of the accused may be given in evidence against him if it is relevant to any of the matters in issue. (at p536)

5. The learned trial Judge in the present case, in giving reasons in the absence of the jury for the direction he proposed to give them, read from the Model Code of Evidence of the American Law Institute, ch. 6, r. 507, pp. 247, 248, a passage in these terms: "The party's conduct may be such that no reasonable person could find therefrom an intention to concede the truth of the declarant's statement. Indeed, it may indicate a purpose to convey exactly the opposite impression; and yet one might reasonably conclude from it that the party really believed the declaration to be true. Thus, his silence or his attempted explanation, or even a halting or otherwise suspiciously spoken denial, in the face of a damaging accusation, may furnish ample ground for an inference of consciousness of its truth, even though it would afford no sufficient basis for an inference of adoption". This seems only a legitimate expansion of what Lord Atkinson said when, after remarking that the accused person's words, actions, conduct or demeanour at the time when a statement was made may amount to an acceptance of it in whole or in part, he proceeded: "It by no means follows, I think, that a mere denial by the accused of the facts mentioned in the statement necessarily renders the statement inadmissible, because he may deny the statement in such a manner and under such circumstances as may lead a jury to disbelieve him, and constitute evidence from which an acknowledgement may be inferred by them" (1914) AC, at p 554 . The meaning clearly is that there may be by words, actions, conduct or demeanour an unintended manifestation of agreement with the statement, the accused showing that he recognizes it in his own mind as true although he has no intention of allowing his recognition of it to appear. And that is all that the passage from the American Model Code seems to suggest. It is necessary to go a step further in the present case. The point here is that, whether or not an accused person's reactions to statements or questions put to him in the course of an interview indicate either that he admits any particular fact suggested to him or only in his own mind recognizes that it is a fact, those reactions may have evidential value upon the ultimate question of fact in the case because they show, when considered in the light of the circumstances, that he has a consciousness of guilt of the crime charged. It cannot be that while the jury may be allowed to take account of conduct of the accused person as showing his state of mind upon a subsidiary or primary question of fact they may not take account of it as showing his state of mind upon the ultimate question of fact. In the present case, in my opinion, it was in accordance with law that the jury was invited to consider the significance of the applicant's answers to such questions as he chose to answer and to treat as material upon which to found a verdict any revelation they might think those answers afforded of what they would have discovered upon the question of guilt or innocence if (to repeat the trial Judge's vivid expression) they could have looked inside the applicant's mind. (at p538)

6. In my opinion the charge to the jury on the point under consideration was correct and special leave to appeal should be refused. (at p538)

TAYLOR J. I agree that special leave to appeal should be refused. (at p538)

2. Evidence of the interrogation of the applicant and of the answers which he made was properly admitted at his trial (R. v. Grills (1910) 11 CLR 400 ; R. v. Christie (1914) AC 545 ) and no complaint is made on this score. The initial complaint which is made is founded upon the observation of Lord Atkinson in the latter case that where a statement is made in the presence of an accused person he "may accept the statement by word or conduct, action or demeanour, and it is the function of the jury which tries the case to determine whether his words, action, conduct, or demeanour at the time when a statement was made amounts to an acceptance of it in whole or in part" (1914) AC, at p 554 . His Lordship added: "It by no means follows, I think, that a mere denial by the accused of the facts mentioned in the statement necessarily renders the statement inadmissible, because he may deny the statement in such a manner and under such circumstances as may lead a jury to disbelieve him, and constitute evidence from which an acknowledgment may be inferred by them" (1914) AC, at p 554 . It is said that in the present case neither the answers which the applicant made nor any action, conduct or demeanour on his part could afford any ground for the conclusion that he accepted any statement made to him in the course of the interrogation "so as to make it, in effect, his own." (1914) AC, at p 554 . (at p538)

3. To assent to this proposition would not, however, in my view, be to dispose of the contention that the evidence relating to the interrogation was sufficient, when taken with the other evidence against the applicant, to justify his conviction. What must be borne in mind when considering the observations made in Christie's Case (1914) AC 545 is that in that case the House of Lords was considering the correctness of a decision of the Court of Criminal Appeal which, following R. v. Norton (1910) 2 KB 496 , had quashed the respondent's conviction on the ground that evidence of a statement made in his presence should not have been admitted unless and until it appeared that he had acknowledged the truth of the statement. In the result the House of Lords rejected the contention that evidence of the statement was not admissible without proof that the respondent had acknowledged its truth. However, the course suggested by Pickford J. in Norton's Case (1910) 2 KB 496 was approved, in cases in which it might be thought to be workable, as a prudent rule of practice for the protection of accused persons. (at p539)

4. In the course of their reasons their Lordships proceeded to consider the specific question of how an accused person might be taken to have acknowledged the truth of a statement made in his presence. But they had no occasion to consider whether the answers of a person under interrogation might tend to incriminate him otherwise than by the adoption of statements of fact made to him and the quoted observation of Lord Atkinson had nothing to do with such a case. However, it is beyond doubt that, without adopting any part of a statement made to him and, therefore, without admitting the truth of any part of it, the answers or declarations of a person being interrogated may reveal his guilt in relation to the crime being investigated. A plain case would arise where such a person refuted the truth of every statement made to him and yet expressly declared his guilt of the crime specified. Or his guilt may become apparent not only from the answers made by him but also from his conduct or demeanour. As Lord Reading said in Christie's Case (1914) AC 545 , "It might well be that the prosecution wished to give evidence of such a statement in order to prove the conduct and demeanour of the accused when hearing the statement as a relevant fact in the particular case, notwithstanding that it did not amount either to an acknowledgment or some evidence of an acknowledgment of any part of the truth of the statement" (1914) AC, at pp 565, 566 . Of course, whether in any particular case an accused can be said to have adopted a statement made to him or has by his words or conduct in the course of an interrogation revealed his guilt in some other way is a question for the jury. Accordingly as I see the present case the primary question is whether it was open to the jury to infer from the words and conduct of the applicant upon his interrogation, viewed in the light of the associated facts proved against him, that he had revealed his guilt, or as the learned trial judge put it, that he had showed or indicated that he was conscious that he was guilty of the crime alleged. The case is somewhat unusual but it does not, in my view, involve the consideration of any important question of law. What is involved is a question as to the sufficiency of the evidence to justify an inference of the character mentioned and this matter was examined in detail and with care by the Court of Criminal Appeal. An appeal from that Court to this Court, it should be remembered, lies only by special leave and in the absence of special circumstances it would not be proper to re-examine that decision. However, as the matter has been fully argued and I have formed my own opinion on the question which has been raised I should add that in my view the evidence was sufficient to support the conviction. (at p540)

5. It follows also from what I have said that in directing the jury as he did the learned trial judge was not in error. (at p540)

MENZIES J. I do not regard this as a case warranting this Court granting special leave to appeal. Whether or not the evidence was sufficient to support the applicant's conviction was carefully considered by the trial judge and by the members of the Court of Criminal Appeal and there I consider that matter should rest. In saying this I do not want to cast any doubt upon the unanimous conclusion of those learned judges that in the course of his interrogation by the police the applicant made statements from which, in the circumstances of the case as a whole, the jury could conclude without reasonable doubt that he took part in the bank robbery of which he and others were convicted. (at p540)

2. Furthermore, although the decisive question for the consideration of the jury in the case against the applicant was whether his answers to the questions which he chose to answer showed his participation in the crime proved by other evidence, I consider that the learned trial judge's direction that the jury should consider whether the applicant's answers indicated a consciousness of guilt was correct for, if those answers did so, then, in the circumstances here, what the applicant said could be regarded as a confession of his guilt notwithstanding that it was not so intended. As his Honour said to the jury, "A man may not intend to show his hand, gentlemen, but on the other hand he may just do that very thing". (at p540)

3. In my opinion the application for special leave to appeal should be refused. (at p540)

WINDEYER J. As a general proposition, I agree with what Starke J. said in Craig v. The King (1933) 49 CLR 429 : "This Court ought not to interfere with the course of criminal justice unless it is shown that exceptional and special circumstances exist, and that substantial and grave injustice has been done" (1933) 49 CLR, at p 442 : see also Packett v. The King (1937) 58 CLR 190 . In the present case there was no misdirection by the learned trial judge. He did not decline to put to the jury any matter of defence or mitigation. His direction was scrupulously fair and careful. What is said is that he should not have left the case against Woon to the jury at all, the evidence, it is contended, not being sufficient to sustain a conviction. I do not think the case is one in which this Court should grant special leave to appeal. (at p541)

2. I would be content to leave the matter at that, were it not that I do not share with any confidence the view that the decision of the Supreme Court, sitting as a Court of Criminal Appeal, was correct. With all respect for the opinion and the experience of the learned judges of that Court, I have misgivings, the grounds of which I shall briefly state. (at p541)

3. A question asked of a person accused or suspected of a crime, or a statement made in his presence, is admissible if he is invited to, or might reasonably be expected to, respond in some way indicative of denial or of acceptance. It is not that what is said to the accused can of itself be evidence against him. But his response or reaction may be; and that is why what is said to him is admitted. His words, silence or conduct may amount to an admission of the truth of what was said. This is subject to the qualification that no inference adverse to a man can be drawn from his refusal to answer questions which he has been expressly told he is not bound to answer or from his silence after he has been told he need not speak at all. A passage in the judgment of Isaacs J. in R. v. Grills (1910) 11 CLR 400, at p 422 , is, I venture to say, a sufficient exposition of fundamental doctrine. The principles have been long understood to be applicable to cases when a confession is made by one man in the presence of another whom he states was his confederate in the crime. And the same considerations apply when, such a confession having been made, it is recited to the alleged confederate and he is invited to comment or reply. That course can, however, sometimes be objectionable for the reasons given by Lord Goddard C.J. in R. v. Mills &Lemon (1947) KB 297, at p 299 ; and see the discussion by Professor Cross in his work Evidence, 2nd ed. (1963), pp. 437-439. The problem is not new: see Starkie on Evidence, 3rd ed. (1842) Vol II, p 40 Whether an accusation be in terms denied or conceded may sometimes be less important than the manner and tone of the words used by the accused and the circumstance of their utterance. A man's looks may belie him. Demeanour and conduct may discount denial and manifest guilt as surely as would a confession made by words. But I think that Dr. Coppel was right when he said that the inference which can be drawn from conduct and demeanour that displays a consciousness of guilt may depend upon whether there is other evidence pointing to the accused as guilty of the offence charged. When there is, false accounts of movements, false denials of knowledge of relevant facts, any conduct, utterance or demeanour demonstrative of guilt may go far to support a conclusion that the accused committed the very crime charged. But when there is no other evidence implicating the accused, an attitude of guilt, without more, may mean only that the accused was a participant in some wrongdoing, not that he committed the crime alleged, in manner and form alleged. (at p542)

4. In the present case there was no evidence against Woon other than his answers to the police and his possession of some money, notes, which may or may not have been some of those stolen from the bank. The Supreme Court said that his answers to questions were "selective". They were. But he had been told he need not answer any questions unless he wished to do so. He had replied "you can ask me any questions you like and then I will decide whether or not I will answer them". The interrogation then proceeded. He answered some questions. He refused to answer others. In the result some of his answers appear evasive. Some questions he answered by asking in effect for an assurance that what the other men were said to have told the police had been said in such a way as to implicate him. That is to say, he appeared to be trying to find the strength of the case against him. He carefully refrained from admitting any fact that he thought the police could not prove. In all this he seems to have been cautious and astute. I entirely agree that his answers to questions asked should be considered as a whole, and in the context of his refusals to answer other questions. But could the fact that he carefully chose the questions he would answer justify an inference of his participation in the crime with which he stood charged? He expressed surprise that in their statements to the police the other men should have implicated him. "Do you mean to say that they have put me in." . . . "It just surprises me that they would put me in." Something might turn on the tone of voice in which these things were said. But of that we know nothing. Taken literally the utterances are equivocal. They could be expressions of surprise that his participation in the crime had been disclosed by his confederates, or they could be expressions of surprise at the suggestion that they should have falsely implicated him. In one important matter he told lies. He said at first that he did not know his alleged accomplice Radcliffe. In fact, as later he admitted, he knew him well. Moreover he had sent telegrams to him, using code names and false addresses. These telegrams were apparently expressed in some sort of code. They were certainly capable of leading to an inference that he and Radcliffe were engaged in some secret enterprise. But it seems to me that showing that there was an association - and, let it be assumed, a guilty association - between Woon and Radcliffe does not really show that Woon was a participant, either as principal or accessory, in the breaking, entering and stealing from the bank. The evidence admissible against Woon may support an inference that Radcliffe and he were partners in a criminal enterprise. But does it support a conclusion that, beyond reasonable doubt, Woon was a participant in this crime? I doubt this. However, as I have said, I would refuse leave to appeal. (at p543)

OWEN J. For the reasons given by Kitto J., I agree that special leave to appeal should be refused. (at p543)

Orders

Application for special leave to appeal refused.