Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Whether trial judge erred in his directions to the jury by referring to the failure of the accused to give evidence - Whether the directions to the jury read as a whole revealed error

Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

Kops v The Queen [1894] AC 650

Mule v The Queen [2005] HCA 49; (2005) 221 ALR 85

R v Bathurst [1968] 2 QB 99

R v DAH [2004] QCA 419

RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620

Truica v The Queen [2001] WASCA 221

Weissensteiner v The Queen [1993] HCA 65; (1993) 178 CLR 217

1 McLURE P: I agree with Pullin JA and Mazza J that the appeal should be dismissed. These are my reasons for that conclusion. The background is detailed in the reasons of Pullin JA and need not be repeated.

2 The appellant did not give evidence at his trial and it was common cause that a direction in accordance with Weissensteiner v The Queen [1993] HCA 65; (1993) 178 CLR 217 was not appropriate.

3 The directions complained of (shown in italics below) must be considered in their broader context. At the commencement of his summing up, the trial judge explained a defendant's right to silence. He said:

Now, the first thing I want to mention to you is that the burden or onus of proving all of the elements of a particular offence is on the State and remains with the State. The accused man, Mr Norton, does not have to prove anything in this trial. There's no obligation on Mr Norton to give evidence and I've made mention of that already to you. He has a lawful entitlement to remain silent; he is lawfully entitled to have the State, which brings the charges against him, to prove those charges. And you must not draw any inference adverse to him by reason of him exercising that right and you must certainly not assume any guilt on his part by exercising that lawful right. That's a right that every citizen has; it's not a gift, it is a right (ts 183 - 184).

4 The trial judge returned to that subject in his summing up. He said:

Now, in this case as I've said, the accused man did not give evidence and he was quite entitled to do so. And his failure to do so cannot fill gaps in the prosecution case. He had a lawful right not to give evidence. It's for the prosecution to prove charges on the evidence that it adduces. And while you, the jury, have been deprived of the opportunity of hearing the accused's version [tested] in cross-examination, you must not assume that he's guilty, because he has not given evidence and the mere fact that he does not do so, proves nothing one way or the other. It does nothing to explain his guilt. On the other hand, it does nothing to explain, rebut or contradict the evidence presented by the prosecution (ts 192).

5 The first passage complained of is based on a comment approved by Lord Parker CJ in R v Bathurst [1968] 2 QB 99, 107 - 108. The observation that the jury has been 'deprived of the opportunity of hearing the accused's version tested in cross-examination' is appropriate where unsworn exculpatory statements of the accused are adduced in evidence at trial: Mule v The Queen [2005] HCA 49; (2005) 221 ALR 85; Truica v The Queen [2001] WASCA 221 [133], [136] (Pidgeon AUJ). In this jurisdiction, unsworn evidence from an accused usually results from the tender by the prosecution of a police video record of interview. In

Bathurst, expert medical witnesses gave evidence at trial of unsworn statements made to them by the accused. The evidence was relevant to the defence of diminished responsibility.

6 On the other hand, I am not persuaded that the comment approved by Lord Parker in Bathurst is appropriate where (as here) there is a complete absence of evidence at trial as to the accused's 'story' or 'version'. In the absence of such evidence, and if looked at in isolation, the comment may be interpreted as inviting an adverse inference from the exercise of the right to remain silent. However, any such possibility was expressly negatived in this case by the trial judge's express direction to the jury that they must not draw any inference adverse to the appellant from the exercise of the right to silence.

7 The second passage complained of is linked with the immediately preceding proposition that the failure to give evidence proves nothing, one way or the other. The appellant contended that the second passage (alone or in combination with the first passage) would convey to a reasonable jury that the absence of evidence from the accused to explain, rebut or contradict the evidence presented by the prosecution could increase the weight to be given to the evidence of the complainant. That would be an erroneous direction; it is to use silence as a make-weight in considering whether the prosecution had proved its case beyond reasonable doubt: Azzopardi v The Queen (2001) 205 CLR 50 [34], [51].

8 I agree that the second passage is the first step on a path towards an invitation to the jury to rely on the appellant's failure to give evidence to reason towards a conclusion of guilt. It is undesirable for that reason. However, such an inference or invitation is inconsistent with the trial judge's express explanation of the scope and effect of the right to silence and would not be conveyed in this case.

9 Finally, it was not suggested that the second passage undermined the defence case put solely in cross-examination. It did not. The trial judge directed the jury that in order to find the charged proved, they had to be satisfied beyond reasonable doubt that the evidence of the complainant as to the elements of the offences was both honest and reliable (ts 188). He then referred to the inconsistencies and improbabilities put to the complainant in cross-examination and relied upon by the appellant for the submission that they could not be so satisfied.

10 PULLIN JA: The appellant was convicted after a trial before a judge and jury in the District Court of two counts of aggravated sexual penetration

without consent, one count of sexual penetration without consent and one count of unlawful detention. The indictment read:

(1) On 19 May 2008 at Victoria Park Robert Michael Norton sexually penetrated [the complainant] without her consent, by introducing his penis into her mouth.

And that Robert Michael Norton was armed with an offensive weapon, namely a knife.

(2) Between 19 May 2008 and 20 May 2008 at Victoria Park Robert Michael Norton unlawfully detained [the complainant].

(3) On or about 19 May 2008 at Victoria Park Robert Michael Norton sexually penetrated [the complainant] without her consent, by introducing his penis into her mouth.

And that Robert Michael Norton was armed with an offensive weapon, namely a knife.

(4) On 20 May 2008 at Victoria Park Robert Michael Norton sexually penetrated [the complainant] without her consent, by inserting his penis into her vagina.

11 The appellant appeals against the conviction. The ground of appeal alleges that an erroneous direction by the trial judge gave rise to an error of law or a miscarriage of justice. In those circumstances, it is only necessary to briefly outline the evidence led in the prosecution case and the nature of the defence.

12 The prosecution case was that the appellant and complainant were known to each other, having met in January 2008. Soon after meeting, they commenced a relationship and the complainant began living with the appellant. This lasted only a few weeks due to the appellant's violence towards the complainant. The relationship ended towards the end of February 2008 and the complainant moved back in with her mother in Perth. However, after the relationship ended, the complainant would still see the appellant.

13 On 19 May 2008, the complainant agreed to go to the appellant's house with the appellant's uncle. The complainant smoked marijuana at the house and after doing so, the complainant went upstairs. The appellant then committed the first offence.

14 The complainant gave evidence that she and the appellant went back downstairs. The appellant's uncle was still in the house, but she did not speak to him. Downstairs, the complainant said she had some more marijuana with the appellant. When she went to leave through the front door, the appellant prevented her from leaving and thereby committed the second offence. The appellant then told the complainant to go back upstairs where the third offence was committed. The complainant went to sleep and when she woke the following morning, the appellant committed the fourth offence.

15 The complainant and the appellant then left the house together. The appellant strapped a knife to his chest before leaving. They used public transport to visit some of the appellant's friends for the purpose of buying marijuana and after going to a pizza restaurant, they again went on a bus. When the bus was on Albany Highway, the complainant pressed the bell, left the bus and went home.

16 The complainant gave evidence that she did not tell anyone about what the appellant did to her until 23 May 2008 when she had a confrontation with the appellant while she was at work. After this incident, she made a complaint to the police.

17 The appellant's uncle gave evidence in the prosecution's case. He testified that he was living with the appellant on 19 May 2008. He gave evidence that he picked up the complainant and brought her to the appellant's home. He testified that the complainant and the appellant smoked marijuana; that the appellant went upstairs and called out for the complainant; that she refused to follow him but did so when the appellant told her she could come back down whenever she wanted to. The uncle said that when they came back downstairs, the complainant appeared distressed, her hair was messed up and her clothes were ruffled. He testified that when she went to walk towards the door, the appellant stopped her from leaving. He testified that the appellant and complainant went back upstairs. He testified that he heard a female voice saying 'No. Not again' before he went to sleep.

18 The uncle testified that the appellant told him that he had kept the complainant hostage and raped her. In cross-examination, the uncle agreed that the appellant had assaulted him at some point after 19 May 2008 and broken his jaw. The uncle admitted having committed a series of serious offences over a long period of time. A police officer gave evidence that on 30 June 2008, the complainant had told her that she wanted to withdraw the charges, but in July 2008, provided a further statement to the police.

19 The appellant elected not to give or adduce any evidence. The defence case, which emerged via cross-examination, was to the effect that the various sexual acts, the subject of counts 1, 3 and 4, took place but that the complainant consented at all times and that the complainant was never unlawfully detained. The defence case also involved the submission that the evidence adduced by the prosecution was not credible and therefore insufficient for the jury to be satisfied beyond reasonable doubt of the appellant's guilt on any of the charges.

There was a wrong decision on a question of law, or there was a miscarriage of justice occasioned, when the learned trial Judge made comments to the jury concerning the failure of the appellant to give evidence.

Particulars

The learned trial Judge told the jury that:

1. they had 'been deprived of the opportunity of hearing the appellant's version tested in cross-examination'; and
2. the fact that the appellant did not give evidence 'did nothing to explain, rebut or contradict the evidence presented by the prosecution'.

21 The portion of the trial judge's summing up which is the subject of the ground of appeal (but not the subject of complaint by experienced counsel at trial) was recorded at ts 192.7 as follows:

And while you, the jury, have been deprived of the opportunity of hearing the accused's version testing [sic] in cross-examination, you must not assume that he's guilty, because he has not given evidence and the mere fact that he does not do so, proves nothing one way or the other. It does nothing to establish his guilt. On the other hand, it does nothing to explain, rebut or contradict the evidence presented by the prosecution. [Emphasis added by appellant]

22 The appellant correctly concedes that it is necessary to consider those comments in the context of the direction that was given to the jury as a whole. The appellant concedes that the trial judge directed the jury that:

(a) the prosecution had to prove the guilt of the appellant beyond reasonable doubt and that the appellant did not have to prove anything;

(c) the appellant's silence could not be used as evidence against him, it did not amount to an admission of guilt, and it could not be used to fill in any gaps in the prosecution case.

23 The appellant concedes that those directions were in conformity with the law. However, the appellant submits that the trial judge was required to warn the jury that they could not use the failure of the appellant to give evidence as a 'makeweight' in assessing whether the prosecution had proved its case beyond reasonable doubt. The appellant further submits that the highlighted portions of the passage complained about, together or separately, constituted a wrong decision on a question of law, or alternatively, occasioned a miscarriage of justice in that they amounted to comment by the trial judge that invited the jury to reason that because the appellant did not give evidence this could be used by the jury to the appellant's detriment. The appellant also submits that what was said by the trial judge in the quoted passage was 'at the very least confusing' as there was no 'version' from the appellant that the jury were deprived of hearing, being tested in cross-examination. The appellant submits that this invited the jury to speculate about what might have been said by the appellant.

24 The question about whether a judge could, or should not comment on an accused person's failure to give evidence only arose after legislation in the late 19th century by which accused persons were declared to be competent, but not compellable, to give evidence in their own defence: see Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50 [39] footnote (57). Section 8 of the Evidence Act 1906 (WA) is the embodiment of that law in this State. In New South Wales, judges sometimes did comment on the failure of an accused person to give evidence after accused persons were made competent in that State: see Kops v The Queen [1894] AC 650. Five years after the Kops decision, the New South Wales parliament legislated to prohibit a judge from commenting on an accused person's election not to give evidence. This legislation was thought necessary to 'ensure that an accused's choice about whether to give sworn evidence was a real choice and not a disguised obligation to give evidence': Azzopardi [43]. This gave rise to 'an unfortunate and unintended consequence', because a jury would sometimes ask a judge what they were to make of the fact that the accused had not given evidence and because of the prohibition on judicial comment on the subject, trial judges were left to tell the jury that they could not answer the question: Azzopardi [44].

25 In Western Australia, there is a statutory prohibition on the prosecutor making comment on the failure to give evidence: see s 8(1)(c) of the Evidence Act. However, there is no prohibition on the judge making comment about the accused's failure to give evidence.

26 The fact that there is no provision prohibiting judges from commenting on the failure of an accused to testify does not mean that the common law, as it stood a century ago, governs what may or may not be said by a trial judge: Azzopardi [38]. Due account must be taken of what 'the common law now provides on the subject of judicial comment': Azzopardi [38].

27 What may be detected from the review of the law in Azzopardi is that in 'rare and exceptional' cases comment may be made by a trial judge about the failure of an accused to disclose additional facts which could be known only to the accused in answer to a prosecution case: see Azzopardi [68]; Weissensteiner v The Queen [1993] HCA 65; (1993) 178 CLR 217.

28 On the other hand, it is clear that there are constraints on the comment which may be made by a judge even where there is no statutory prohibition. Thus, it was made clear in RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 that, even in the absence of a statutory prohibition on comment [22], in a case like RPS (a case of sexual offences testified to by the complainant but in which the accused did not give evidence) a judge is not permitted to say to the jury that:

(a) the appellant's election not to give evidence could be taken into account in judging the value or weight of the prosecution evidence;

(b) the absence of denial or contradiction of the evidence given by the accused whose partial admission out of court would permit the jury to 'more readily' discount any doubts about that evidence;

(c) if it was reasonable in the circumstances to expect some denial or contradiction of the prosecution evidence, the jury were entitled to conclude that the appellant's evidence would not have assisted him and that the absence of denial or contradiction was a circumstance which could lead them more readily to accept the evidence given by the witnesses for the prosecution;

(d) while the accused's election not to give evidence could not fill gaps in the prosecution case, it could enable them to feel more confident in relying on the prosecution evidence; and

(e) the absence of evidence from the accused meant that the version of events put in cross-examination of prosecution witnesses was not supported by evidence.

29 Points (a) to (c) above are points which reflect or emerge out of the rule in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298. The High Court made it clear in RPS that the observations in Jones v Dunkel 'must not be applied in criminal cases' [28]. I should add that point (e) requires some qualification because it is clear that questions put to a witness do not constitute evidence.

30 Because jurors in this State would know or be assumed to know that an accused may give sworn testimony, trial judges usually direct the jury not to use the fact that the accused has not given evidence as a point of proof against the accused. Gaudron, Gummow, Kirby and Hayne JJ in Azzopardi [47], referred with apparent approval to the statement by Lord Parker CJ in R v Bathurst [1968] 2 QB 99, 107 - 108 that in the normal case where there was no statutory prohibition on comment:

The accepted form of comment is to inform the jury that, of course, he [the accused] 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 to assume that he is guilty because he has not gone into the witness box.

In Truica v The Queen [2001] WASCA 221 [133] Pidgeon J said that a direction in accordance with Bathurst had been a common form of direction in Western Australia. As McLure P points out, this is appropriate where unsworn exculpatory statements of the accused are adduced in evidence at trial. In Azzopardi their Honours concluded [51] that if an accused person does not give evidence at trial, it will almost always 'be desirable' for the judge to warn the jury:

[T]hat the accused's silence in court is not evidence against the accused, does not constitute an admission by the accused, may not be used to fill gaps in the evidence tendered by the prosecution, and may not be used as a makeweight in assessing whether the prosecution has proved its case beyond reasonable doubt. It by no means follows, however, that the judge should go on to comment on the way in which the jury might use the fact that the accused did not give evidence.

31 In this case, as already mentioned, the trial judge directed the jury that the appellant did not have to give evidence, that his silence could not be used as evidence against him, did not amount to an admission of guilt and could not be used to fill in any gaps in the prosecution case. The appellant conceded that this warning was appropriate. However, the appellant submits that the trial judge erred when he said that the jury had been 'deprived of the opportunity of hearing the accused's version [tested] in cross-examination'. That submission must be rejected because that statement was followed by a direction that 'you must not assume that he is guilty because he has not given evidence'.

32 The reference to the jury having been 'deprived of the opportunity of hearing the accused's version tested in cross-examination' is a phrase lifted with minor modification from the reasons of Lord Parker CJ in Bathurst's case (see above) and quoted in Azzopardi [47]. However, even if it were appropriate to use the phrase in the circumstances of this case, the trial judge made the position clear when he directed the jury that the mere fact that he did not give evidence proved nothing one way or the other and did not establish his guilt. That direction was entirely correct.

33 The comment by the trial judge that the fact the appellant did not give evidence 'did nothing to explain, rebut or contradict the evidence presented by the prosecution' was a comment which was unnecessary and undesirable, but in the context of the directions when read as a whole, did not give rise to any miscarriage of justice. None of his Honour's comments were of a kind which the High Court in RPS said were prohibited.

34 Finally, the absence of a direction to the jury that the appellant's failure to give evidence could not be used as 'a makeweight in assessing whether the prosecution had proved its case', was not a miscarriage of justice or error of law. The word 'makeweight' means literally to put something in a scale to complete the required weight. To say that the failure of an accused to give evidence must not be used as a makeweight is the same as saying that his silence cannot be used to 'fill gaps in the evidence': Azzopardi [51]. See also R v DAH [2004] QCA 419 [86]. The trial judge gave such a direction.

36 MAZZA J: I have read the draft reasons of McLure P and Pullin JA. I agree that the appeal should be dismissed.

37 The facts of the case and the relevant portions of the learned trial judge's summing up are accurately set out in the reasons of Pullin JA.

38 The issue raised in this appeal is whether two comments made by the learned trial judge in his summing up undermined otherwise orthodox and correct directions dealing with the appellant's right to silence. In my opinion, they did not.

39 The portion of the summing up which is the subject of this appeal is as follows (ts 192). The impugned comments are italicized:

And while you, the jury, have been deprived of the opportunity of hearing the accused's version testing [sic] in cross-examination, you must not assume that he's guilty, because he has not given evidence and the mere fact that he does not do so, proves nothing one way or the other. It does nothing to establish his guilt. On the other hand, it does nothing to explain, rebut or contradict the evidence presented by the prosecution.

40 I agree with what McLure P has said about the first impugned comment.

41 With respect to the second impugned comment, it may well have been taken from Archbold JF, Pleading Evidence and Practice in Criminal Cases, London: Sweet & Maxwell (1993 ed) [4-410], where a specimen standard direction is given in this form:

The defendant is not obliged to give evidence. He is entitled to sit in the dock and require the prosecution to prove its case. You must not assume that he is guilty because he has not given evidence. The fact that he has not given evidence proves nothing, one way or the other. It does nothing to establish his guilt. On the other hand, it does nothing to rebut, contradict or explain the evidence put before you by the prosecution. (emphasis added)

42 I agree with Pullin JA that that the second impugned comment was unnecessary and undesirable. Unnecessary, because it is a statement of the obvious. Undesirable because it may, when viewed in isolation, suggest a reversal of the onus of proof. However, having regard to his Honour's summing up as a whole, I do not think that the jury would have understood the comment to have had this effect.

43 The appellant submitted that this second impugned statement was contrary to [68] of Gaudron, Gummow, Kirby and Hayne JJ's reasons in Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50:

It is to be emphasised that cases in which a judge may comment on the failure of an accused to offer an explanation will be both rare and exceptional. They will occur only if the evidence is capable of explanation by disclosure of additional facts known only to the accused. A comment will never be warranted merely because the accused has failed to contradict some aspect of the prosecution case. (emphasis added)

Specifically, the appellant submitted that his Honour's comment was in breach of the sentence I have emphasised.

44 In my opinion, this submission reflects a misunderstanding of the kind of comment that was there under scrutiny. The paragraph appears in the context of a discussion of the High Court's decisions in RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 and Weissensteiner v The Queen [1993] HCA 65; (1993) 178 CLR 217. In RPS, the trial judge said that the absence of denial or contradiction could lead the jury to more readily accept the evidence of the witnesses for the prosecution. In Weissensteiner, the trial judge said that the failure of the accused to add to, explain, vary or contradict the evidence of the prosecution might enable the jury to more safely draw inferences against the accused.

45 In both cases what was being considered was a comment to the effect that the accused's silence may strengthen the prosecution case. The comment referred to in [68] is a comment of this type. Their Honours were saying that such a comment is not warranted merely because the accused has failed to contradict some aspect of the prosecution case.

46 In the present case, the appellant's counsel conceded that his Honour's comment did not go as far as the comments made in RPS and Weissensteiner. His Honour's comments did not state or convey to the jury that the accused's silence strengthened the State's case.

47 In my opinion, the ground of appeal has not been made out. The appeal must be dismissed.