Brain v The Queen [2010] VSCA 172

1 I have had the advantage of reading, in draft, the reasons for judgment prepared by Coghlan AJA. I agree with those reasons, and with the order proposed.

3 The applicant was convicted in the County Court at Melbourne of one count of recklessly causing serious injury, and one count of false imprisonment. He was sentenced to a term of two years and six months' imprisonment on count 1, and 12 months' imprisonment on count 2. Six months of the sentence on count 2 was made cumulative upon the sentence on count 1 resulting in a total effective sentence of three years' imprisonment. A non-parole period of 14 months was fixed.

4 In his Full Statement of Grounds of Appeal, the applicant relies upon one ground, in the following terms:

The trial of the Applicant miscarried as a result of the admission into evidence of those portions of the Record of Interview where the Applicant had refused to answer questions.

5 An earlier application for leave to appeal against sentence was abandoned.

6 This matter has had a somewhat chequered history. It first came on for hearing in the County Court on 3 March 2008. Following an impermissible comment by the prosecutor in his final address, the jury were discharged without verdict. The retrial commenced on 1 December 2008.

7 On that occasion, the trial judge reaffirmed a ruling that had been made during the first trial as to the admissibility of a series of questions and answers in the record of interview. It is that ruling, subsequently adopted by the trial judge, that forms the basis of this application for leave to appeal.

8 The particular ruling related to a number of questions which had been answered, in whole or in part, by expressions such as 'no comment', or 'I don't want to incriminate myself'. Her Honour held, over objection, that these questions and answers were admissible.

9 There had earlier been discussions between the applicant and the Crown as to the record of interview. These had resulted in some editing. However, the defence sought to have some additional answers excluded, and the Crown argued that they were admissible. Her Honour ruled in favour of the Crown.

10 The difficulty which arose in relation to this ruling was that counsel who appeared for the applicant at trial sought to have a number of his client's 'no comment' type answers put before the jury, while selectively excluding others. He did so, no doubt, because some of them were favourable to his client's case. Indeed, they were the basis for the only defence upon which the applicant relied, namely, self-defence.

11 The matter can best be illustrated by considering some of the questions and answers in the record of interview:

139: Yeah. Can you describe how he did it and what he did and - - -?

No, I'd rather not do that. I don't want to incriminate myself, but he started laying his hands on me, physically.

140: I'm asking you to describe what he did to you, and that - - -?

No, well, that's hay my - - -

141: That's what you're telling me. You're telling me he assaulted you.

[Darryn]?

142: Yeah?

That's as far as I'm prepared to say, because he was speaking to 'em. Like he had spoken to you guys three times, you know, just prior and said, "Don't worry about it," and while he was speaking to the ambulance I said, "You don't have to do this," and he started physically assaulting me.

143: Was he still on the phone then, at the time, was he?

Yes.

144: Or had he hung up?

No, no. He was still on the phone.

145: Okay, was he throwing punches at you, was he throwing things at you? That's what I'm asking you to describe, if you can, how he was assaulting you.

Well, he was physically assaulting me, and I don't want to go any further than - than what I'm saying, but he was laying his hands on me - - -

146: Yeah.

In a violent manner.

147: Well, the reason we're here now is that an allegation has been made of assault by you, upon him which we're investigating.

Yes.

148: Okay. So he told us that an assault took place in which case - in - where - whereby he was injured and the injuries were committed by yourself, what would you say to that?

That's what that - I - I don't wish to answer that.

149: What you say that he started assaulting you, did you - did you start assaulting him back to protect yourself or - - - ?

I just - I started to defend myself because I - I felt that he was going to - I felt my life was under threat - - -

150: Yes.

Literally. He's 10 years younger than me.

151: Yep, so you felt in fear of your safety?

No, my life.

152: Okay.

Yeah.

153: Was he saying any - you're saying that you felt scared for your life. Was he saying anything to you that would put you in fear of your life, that you might lose your life?

Yes.

154: What was he saying to you?

I'm not prepared to say that that, either, but he was like - he - he was already physically laying his hands on me, at that stage.

155: Right. Roughly what time of day did this occur? Day or night, for that matter. What - - -?

Same time he - he rang youse guys, the police and the ambulance.

156: Was there much noise happening as a result of the fight going on, now starting between you two?

When you say noise, what sort of - - -

157: Well, was - do you think if someone outside - if there was someone outside, they would have heard a fight going on inside the house? Was it a loud fight? Was there yelling and screaming? Was there anything that might cause someone's attention to be brought - - -?

Well, he was doing a lot of it.

158: Yeah. What was he saying to you?

I'm not prepared to go into that, either.

159: How come? The - - -?

This ---

160: The reason we interview you on tape -- ?

Yeah.

161: It is just so we can get all the facts down.

Yeah. Well, because ---

162: And this is also your opportunity ---?

Because I don't want to incriminate my -, all I'm saying is I don't want to incriminate myself here by saying too much. He rang youse three times and then rang the ambulance and then he started to physically assault me - - -

12 Counsel who appeared for the applicant at trial took objection to questions and answers 148, 158 and 160 to 162. Questions 160 to 162 were excluded in their entirety. What was tendered instead, was question 159, followed by the answer to question 162. It is important to note that no objection was taken to any of questions and answers 139, 142, 145 and 154, as set out above.

13 What becomes immediately apparent is that the phrases used by the applicant such as 'I am not prepared to say' and 'I don't want to go any further', or 'I don't want to incriminate myself', were all used in a very general way. They were usually appended to responses that contained the very essence of the applicant's defence, namely that he had acted only in self-defence.

14 When considered as a whole, the passages now impugned before this Court are similar in content to those which the applicant's counsel was perfectly content to have admitted, and indeed, upon which his entire defence rested.

15 Another example can be seen in the following exchange:

183: In what condition was Darryn when you left him? How was he? Can you describe how he was?

Well, I'm not prepared to discuss that, except for that he come off second best.

184: I'll as - before I - I'll ask you, why aren't you prepared to describe and talk about - - -?

Because I - because I - because he - he had already assaulted me, he'd already rang youse three times, he rang - he rang the ambulance.

185: Yeah. Are you aware that when we got to the premises this morning, or should I say, when police first got to the premises this morning after you had left, they found Darryn there and he was tied, tied up? His hands bound and - to the rear of his body?

No, I'm not - I'm not answering to that either.

186: Do you agree with that or do you remember doing that or - - -?

Ah - - -

187: Because I'm trying to get an explanation from you as to how he might have come to be bound up and tied like that.

Well, I'm not prepared to answer that. I'm saying that I had to leave there.

188: Was there anyone else at home last night, apart from you two?

No.

189: So is it fair to assume that if he didn't tie and bound his upper hands, it might have been you?

I'm not prepared to answer that.

16 As the argument progressed, no objection was taken to question and answer 183. However, objection was taken to questions and answers 184 to 189.

17 There are numerous other examples of questions and answers to which no objection was taken, although these included expressions which, viewed in isolation, might have suggested an unwillingness to comment. It is fair to say that the defence position was that the applicant wanted those parts of the record of interview which supported a defence of self-defence to be included, whether or not they contained expressions such as 'no comment', or 'I do not wish to incriminate myself'. However, where those expressions were not specifically linked to self-defence, or otherwise advantageous to the applicant, it was sought to have the record of interview edited, and the answers excluded.

18 The Crown submitted that, having regard to the overall position taken by the applicant to the record of interview, there was no reason why the impugned questions and answers should be excluded. Although the prosecutor referred to cases such as Woon v The Queen,[1] R v McNamara[2] and R v Barrett,[3] all of which deal with 'selectivity' as rendering 'no comment' style answers relevant and admissible, he did not rely upon that doctrine, or any notion of 'consciousness of guilt' in support of their admissibility.

19 Ultimately, the position taken by the Crown in relation to the impugned questions and answers was a simple one. It was submitted that the record of interview, as a whole, could only be intelligible if those questions and answers were admitted.

20 The prosecutor relied, in particular, upon what was said by the Full Court of the Supreme Court (Young CJ, Newton and Kaye JJ) in McNamara. In that case, the accused had declined to answer some ten questions during the course of a relatively short record of interview. He sought, at trial, to have the whole of the record of interview excluded. However, because it contained a number of express admissions, and potentially false denials, that submission failed.

21 The trial judge ruled that unless the 'no comment' questions and answers, which might otherwise have been objectionable, were admitted into evidence, the record of interview would be difficult to understand. Any issue of prejudice could be dealt with by appropriate directions.

22 It was argued before the Full Court that the entire record of interview or, at the very least, the 'offensive' questions and answers, should have been excluded. That argument failed.

Although, as earlier pointed out, the applicant's refusal to answer those particular questions could not be used against him, nevertheless the questions were interwoven with some admissions and with numerous denials, some at least of which, looking at the matter at the time of his Honour's ruling, might later be capable of being regarded as false denials in the sense earlier mentioned. In our opinion, his Honour was entitled to take the view which he expressed, namely, in substance, that the exclusion of the questions which the applicant had declined to answer would result in a distorted or unreal version of the interrogation being placed before the jury, and that any unfair prejudice to the applicant could be removed by a proper warning from his Honour.[4]

24 In the present case, the trial judge, in a careful ruling, referred to McNamara, and the principle for which that case stood. She noted that counsel for the applicant wanted the jury to have before them selected questions and answers which might otherwise have been regarded as objectionable, and that he did so for, what could be described as, 'tactical reasons'. It was a means, and perhaps the only means, by which the applicant's defence of self-defence would be before the jury.

25 Before dealing with the individual questions and answers to which objection

was taken, her Honour, after referring to a number of relevant authorities,[5] said:

These authorities it seems to me support a proposition that questions and answers given in a record of interview should be considered as a whole with refusal to answer questions part of a whole of the interview. Of course bearing in mind that "no comment" type answers cannot be used to infer a consciousness of the guilt. To avoid the jury inappropriately reasoning that way, directions from the trial judge as to the impermissible use of "no comment" type answers must be given. Care is also required by me when assessing these "no comment" type answers which appear interspersed within a record of interview. ... [B]alance and context overall within a record of interview is a relevant consideration.

Also in determining this issue is whether the removal of [questions] declined to be answered would result in a distorted or unreal version of the interrogation. I note again similar responses not sought to be excised by Mr Glynn.

26 At the time that the record of interview was played to the jury, her Honour said:

Just before you go on, members of the jury, I have something I want to say about the record of interview that you've just heard. In a moment I'm assuming it's going to be tendered and you'll be able to take that with you, if it hasn't already, into the jury room and there will be a machine given to you so you can play it over and over again if you wish. But I just want to say something about that record of interview. In particular, I want to say something about some of the answers that you heard given by the accused to questions asked of him by police, especially the "No comment" answers or the, "I'm not prepared to answer the question", or, "I don't want to answer the question", those sorts of responses.

Well, I must tell you that those answers follow on from him being specifically told by the police, on several occasions that I've noted when I looked through it, and you would have heard that very early in the record of interview and repeated at the start of each interview and even more than that, that he was not obliged to say or do anything during that interview.

And in fact he was as I recall it reminded of that on three occasions that I could count throughout that interview if not more. It's important that you understand as a matter of law it's an accused person's right not to answer questions put to him, you don't have to. And he was properly warned of his right in law to refuse to say anything if he wanted to.

So I direct you as a matter of law, and it is a direction of law and this is binding on you, that you may not use his silence or a refusal to answer questions as any form of implied admission of guilt, you can't do that. Refusal or silence doesn't strengthen the Crown case at all because it's his right. You're not permitted to infer that the accused has admitted his guilt in any way at all from the fact that he expressed his right to not answer questions in the way he did. He's entitled not to answer. Just for your own benefit, the same would apply to you or I if we were being questioned, you've got the right not to answer.

By themselves those questions and answers are irrelevant. While you may have regard to all the answers in that interview given by the accused in their totality, you must not draw an inference adverse to him of guilt based on the answers of "No comment" or "I don't want to answer" or "I prefer not to answer that", that type of answer. Because as I have said now several times, and I'm repeating it because it is a direction of law, it's his right to decline to answer.

Common sense would tell you that he can't be given that option then when he takes it have any inference drawn against him for taking the option that was offered and that he's entitled to, you can't do that. So quite apart from common sense and fairness which I'm sure you would understand, it's also against the law for you to use it in that way. So I repeat, and this is a direction of law, the accused's answers to the questions that he did answer should be considered as a whole in the context of those he also didn't answer, so it's the whole thing, the global thing that you look at.

You can look and assess the whole of the record of interview in that way but I direct you, and as I've said this is a direction of law and you are bound by it, you must not use his refusal or not wanting to answer questions such as "No comment" or "I don't want to answer that" or "I'm not prepared to answer that', to infer his guilt because of those answers. He had that right, OK?

27 In her charge to the jury, her Honour essentially repeated what she had earlier said. She directed the jury, with regard to the record of interview, as follows:

In relation to what I have just said about the record of interview, I want to remind you again of what I said to you just yesterday. Mr Glynn said I probably would and I will because it is an important matter that I need to raise. That is the "no comment" answers in that record of interview. "I do not want to answer, I am not prepared to answer", those answers. I remind you that those answers followed him being told by police at the start of the interview and at various times, "Look, you don't have to answer these questions. You don't have to give us any answers" and it was his right not to answer the questions that were put to him. I direct you, you may not use his silence or refusal to answer any questions, as any sort of implied admission of guilt at all. Refusal or silence does not strengthen the Crown case.

You are not permitted to infer that he admitted his guilt from the fact that he selectively answered. He took his rights to answer some and not answer others. By themselves, the questions he said "no comment" to and "I don't want to answer that" et cetera, are irrelevant and you must not draw an inference adverse to him at all of guilt based on those types of answers because it was his right to decline to answer. I repeat, and this is a direction of law, the accused's answers to the [questions] he did answer, should be considered as a whole in the context of his refusal to answer other questions. You can look at the whole of the record of interview, assess the whole of the record of interview in that way but I direct you and as I say, it is a direction of law and you are bound by it, you must not use his refusal to answer, such as "No comment. I don't want to answer that. I'm not prepared to answer that" to infer his guilt because of those answers.

28 Before this Court it was submitted on behalf of the applicant that, although it might be appropriate in some cases to allow 'no comment' type answers to be put before the jury for the reasons identified in cases such as McNamara, that did not justify the admission of so many answers of that kind in the present case.

29 In my opinion, that submission should be rejected. The only reason why the trial judge permitted the 'no comment' answers to be led was because, otherwise, the record of interview would have produced a disjointed and misleading impression. Counsel who appeared for the applicant at trial wanted, selectively, by what could be described as a 'cut and paste' approach, to have only those 'no comment' answers that were linked in some way to the applicant's defence admitted, but not others. Plainly, he took the view that otherwise the applicant's defence would not have been before the jury at all. It should be noted that the applicant did not give evidence at the trial, so his defence had to depend largely upon what might be elicited from the complainant in cross-examination, and those answers the applicant gave regarding self-defence in the record of interview.

30 As a general rule, 'no comment' type answers are regarded as irrelevant, and potentially prejudicial. For that reason, they are normally excluded. However, the question of admissibility must, in the end, depend upon the particular circumstances of the case.

31 Having regard to the way in which the defence proposed to conduct its case, her Honour was correct in ruling that these answers were admissible. No miscarriage of justice was occasioned by the admission of the impugned material. That was particularly so as a result of the careful, and forceful directions given to the jury regarding the matter.

[1] [1964] HCA 23; (1964) 109 CLR 529.

[2] [1987] VicRp 68; [1987] VR 855 ('McNamara').

[3] [2007] VSCA 95; (2007) 16 VR 240.

[4] McNamara [1987] VicRp 68; [1987] VR 855, 865.

[5] Woon v The Queen [1964] HCA 23; (1964) 109 CLR 529; McNamara [1987] VicRp 68; [1987] VR 855; Plevac (1995) 84 A Crim R 570; and R v Barrett [2007] VSCA 95; (2007) 16 VR 240.