Bridge v The Queen

Bridge v The Queen - [1964] HCA 73 - HCA 1964 case summary — Zoe

[22]

In the present case there is nothing to suggest that the learned Chairman deliberately attempted to infringe the section but the matter is not one of intent but of effect. It may possibly be that the learned Chairman, thinking to minimize the prosecutor's comment that the accused's statements had left some significant matters unanswered or unexplained, intended to do no more than to say that the accused's statements must be taken as they were and that no criticism should be made of the accused for not making them fuller as no opportunity existed for others to assist them by questioning. But even allowing for any absence of a desire to disparage the accused and crediting the learned Chairman with some such purpose as I have speculated as possible, in the result he did not merely address himself to the weight of the statements which the accused had made. He referred to "the procedure" which I think meant the procedure adopted by the accused; or, at least, was calculated to convey that meaning to a jury whom I would expect to be familiar with the ability of the accused to have adopted some other procedure. He could not have meant the exclusive procedure of the court in such matters for that would have been palpably incorrect. Having referred to "the procedure", his Honour prefaced his reference to interrogation and cross-examination with the words "in those circumstances". I think that these words would clearly contrast in the jury's minds what had happened in the procedure adopted with what might have happened in other circumstances. Then his Honour's references thereafter to the inability of anybody to ask the accused any questions went, to my mind, far beyond a statement that what the accused had said was untested. It was, it seems to me, particularly if it is related to the prosecutor's comment on the matters the statements left unexplained, a clear suggestion that in those other circumstances the accused could have been asked about matters of which they had not spoken in their statements and which may not necessarily have been related to what they had said. This, to my mind, was not merely a comment on the weight of what the accused had said. It was calling attention to the position of the accused personally as being sheltered from interrogation by the course they had taken. In my opinion, this was a clear breach of the section - a comment on the failure of the accused to give evidence. It was not, in my view, what the Court of Criminal Appeal thought it was, viz. a somewhat strong comment on the weight of the statements the accused had made. It was, in my opinion, a comment of a radically different kind; it was of the prohibited kind, not merely an excessive comment of a permitted kind.

[27]

The accused, each of them have made statements to you - very short ones - in their defence. Some comment has been made that there may have been some matters which they did not explain to you. On the other hand you may feel as both counsel for the defence put it, it is very difficult for them if they were not there and not mixed up with the thing at all, other than to say "We are innocent; we were in bed" or "I was not there". Now these statements you will consider and give such value to as you think they deserve, if any. It is not for the accused to try and show that they were innocent at all. Well, we have had that over and over again, you fully understand it, but you will give such weight as you feel they deserve to these statements. But the procedure is this, that the statements are not on oath, they are made without the sanction of the oath from the dock, and under those circumstances they could not be asked a single question, they could not be cross-examined, they could not be asked any questions by the judge or anybody else after they had made these statements to you. They were very short statements, but you may feel that a short statement is of more value than a longwinded one that gets the person concerned into all complications. What you think of them I do not know, it is a matter entirely for you, but you will give to each of the statements made by the accused the weight that you feel it deserves. Bataillard's Case [1] and Jackson's Case [2] were cited in the argument on this motion. When these cases were decided the words of the prohibition in s. 407 against comment were not the same as they are now. The alteration does not affect principles which were laid down in Bataillard's Case [1] . The standards by which to decide whether there has been a breach by comment are contained in the judgment of Isaacs J. in that case. Having regard to these decisions I feel bound to hold that it is not clear that the trial judge contravened the law against commenting on the failure of an accused person to give evidence. The crucial question is whether the words of the summing up which have been quoted drew the jury's attention to the fact that neither accused gave evidence. I feel a real doubt about whether they involve any such allusion. The passage merely recounts the incidents attached by law to a statement made by an accused under s. 405. The meaning of the words cannot, in my opinion, be pressed further than that. What I have said does not involve a recommendation of the words used by the trial judge as a precedent. It would be much better to use words which are not so susceptible of criticism. 1. (1907) 4 C.L.R. 1282. 2. (1918) 25 C.L.R. 113. 3. (1907) 4 C.L.R. 1282.

[35]

Whether prohibitions against comment really serve the interests of justice is a controversial question, especially since the competence of accused persons to testify has now been long established and has become generally well known. The wisdom of such prohibitions and of related provisions forbidding an inference from the failure of an accused person to go on the witness stand has been much discussed in America: see Wigmore on Evidence (McNaughton revision 1961), vol. 8, p. 427. In some of the United States, a growing number it seems, these prohibitions have, with the approval of the American Bar Association, been removed or modified. But whether they be willing or reluctant in their obedience, judges and prosecutors must obey the statute. Courts are not concerned with its policy or purpose, except in so far as an appreciation of these may aid decision whether in a doubtful case what has been done is what is forbidden. What the statute prohibits is any expression designed to attract, or which would necessarily attract, the attention of the jury to the fact that an accused person competent to give evidence in the witness box did not do so. It is in the nature of a proviso to the statutory right of an accused person to give evidence on his own behalf - a proviso designed to prevent that right being turned to his disadvantage. Most jurymen today probably know that an accused can give sworn evidence if he chooses: at least some members of every jury probably know this well, for it has been the law of New South Wales for more than seventy years, and there is now little recollection of the time when the accused was not allowed to testify. This does not alter the obligation to refrain from comment. It merely enhances the difficulty of performing it. The restraint it imposes is if anything greater, because, the right to give evidence being now well known, words can the more readily convey to the minds of the jury that it was not availed of. Griffith C.J. recognized this in 1907, treating the right of an accused person to give evidence as then already familiar: Bataillard's Case [1] . As long ago as 1901 a writer in the Solicitors' Journal in England, in a passage quoted in Best on Evidence, 9th ed. (1902), p. 522, said:

[38]

If the hat, in which the candle was burning, was not the accused's, would you not expect him to deny it? If it was his hat, why does he not explain how it got there? The propriety of these remarks was questioned and the case went to the Supreme Court, as a Crown Case Reserved. It was argued before a Full Bench of seven judges (Darley C.J., Windeyer, Innes, M. H. Stephen, Owen, Foster and C. Manning JJ.), an unusual procedure in those days. The Court by majority, Innes and Manning JJ. dissenting, held that the judge was entitled to comment as he did to the jury and to invite them to draw inferences from the prisoner's failure to contradict or explain the incriminating matters alleged. The judgments of the majority put the case on the basis that, according to the general principles of the law of evidence and the ordinary processes of human reasoning, an inference could be drawn from the silence of the prisoner, and that there was nothing in the statute to preclude the judge bringing that to the notice of the jury, still less that he should direct them that they should disregard it. The judgments are lengthy and powerful. I shall quote one passage only - from the judgment of Owen J.: If, therefore, a necessary inference is to be drawn in civil cases from silence where there is a necessity and an opportunity for giving evidence, you cannot exclude such inference in criminal cases. Human reason cannot fail to draw such an inference. It is not a mere legal inference, but one which every man draws in the daily affairs of life when a statement is made in a person's presence as to facts within his knowledge calling for denial or explanation but which is not denied or explained. If this is so, then in my opinion the judge ought to direct the jury as to the limits of such inference and to caution them against its improper use, and not to maintain silence on the subject or direct a jury to do an impossible thing. Nor do I see that a prisoner can be prejudiced by such inference - the necessity for his evidence can only arise when facts have been proved calling for denial or explanation [1] . The minority view, best expressed by Innes J., was that the statute said the accused was not a "compellable" witness: that if adverse comment on his not going into the box were allowed he would be virtually compelled to do so: that because he would then be subject to unlimited cross-examination there would be an invasion of the maxim "nemo tenetur seipsum accusare". The Privy Council upheld the majority decision - but with the reservation that "There may no doubt be cases in which it would not be expedient, or calculated to further the ends of justice, which undoubtedly regards the interests of the prisoner as much as the interests of the Crown, to call attention to the fact that the prisoner has not tendered himself as a witness, it being open to him either to tender himself, or not, as he pleases. But on the other hand there are cases in which it appears to their Lordships that such comments may be both legitimate and necessary": Kops v. The Queen [2] . That has remained the generally accepted expression of the law when comment by the judge on the failure of an accused person to give evidence is not expressly forbidden. "There are some cases in which it would be unwise to make any such comment at all; there are others in which it would be absolutely necessary in the interests of justice that such comments should be made. That is a question entirely for the discretion of the judge": per Lord Russell C.J. in Reg. v. Rhodes [3] . However, if comments be made that seriously prejudice a fair trial, the discretion is not properly exercised; and it has been held that it may be reviewed: Waugh v. The King [4] . 1. (1893) 14 N.S.W.L.R. 150. 2. (1893) 14 N.S.W.L.R., at p. 206. 3. [1894] A.C. 650, at p. 653. 4. [1899] 1 Q.B. 77, at p. 83. 5. [1950] A.C. 203.

[47]

It has been suggested that the practice of allowing an unsworn statement should be regarded as revoked by a right to give sworn evidence. And, except where the right to make an unsworn statement has been expressly retained by statute, that view, which has been accepted in some Canadian jurisdictions, may be correct: see 68 Law Quarterly Review, 463 and 69 Law Quarterly Review, 22, but see Kerr v. The Queen [1] . In New South Wales, however, the statutory right to make an unsworn statement exists alongside the right to give evidence on oath. An unsworn statement forms part of the total material before the jury. And the jury are entitled to guidance and direction from the judge as to its weight and place in that material. The judge may comment on the content or the deficiencies of an unsworn statement if he thinks it fitting to do so, subject only to the overriding requirements of a fair trial. And if the accused neither makes a statement nor gives evidence, the judge may, as I have said above, comment in general terms on his failure to contradict or to explain evidence for the prosecution. Moreover if he makes an unsworn statement the judge should, it has been held, direct the jury in their evaluation of it - by telling them that they are to take it into consideration and give it such weight as they think fit along with the sworn evidence, but that it is not evidence in the same sense, as it lacks the sanction of an oath and the test of cross-examination. I find it hard to see how in doing this the judge can ever be sure that his remarks do not amount to a comment on the failure of the accused to give evidence. If, as has been said, any allusion, direct or indirect, bringing to the mind of a juryman that the accused could have given evidence on oath and that he did not do so is forbidden, and if it be assumed, as I think it must be, that some members of the jury will be aware of the right of an accused to give evidence, then any reference to the distinction between an unsworn statement and sworn evidence may invite attention to a failure to provide the latter and be within the prohibition.

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