Bridge v The Queen

There is only one question raised by the applicants in support of their applications with which I need deal. That is, whether or not in summing up to the jury the learned Chairman, in breach of s. 407 of the Crimes Act, 1900 N.S.W., commented on the failure of the accused to give evidence.

Neither accused gave or called any evidence in answer to the case for the prosecution which, apart from evidence of a conversation between the accused, connected them with the theft only by circumstantial evidence. But each made a statement of a very brief kind denying his complicity in the theft. Apparently, in the course of the prosecutor's address to the jury some comment was made by him on the brevity of these statements and upon the fact that many matters were left unexplained by them. Summing up to the jury his Honour the learned Chairman said this:

Now we come to the defence. 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 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 long-winded 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.

Giving the judgment of the Court of Criminal Appeal Herron C.J. said that he thought that whilst the portion of the summing up of the learned Chairman which I have italicized was "close to the line", he did not think that anything that the Chairman had said was in breach of s. 407. However, the Court was of opinion, in any case, that no substantial miscarriage of justice had occurred.

Two points thus arise. First, whether what the learned Chairman said was a prohibited comment; second, whether, even if it was, the case was one in which this Court should grant special leave to appeal.

The history and purpose of s. 407 are discussed in the judgment of Isaacs J. in R. v. Ellis [1] ; he says of an accused:

He has a right among other things to make a statement under s. 405 "without being liable to examination thereupon by counsel for the Crown, or by the Court", and he has that right free from any "comment" that he refrained from giving evidence on oath [2] . At p. 157 his Honour says: "The New South Wales Parliament, however, deliberately chose a form of words" (i.e. in s. 407) "broad enough to include comment from any source from which it could otherwise come according to law. The law so made still stands, and is placed in its appropriate place as part of s. 407 in the consolidating Act of 1900. The intention of Parliament is plain. Having before it the new English legislation, and probably the Canadian Act, and having before it the distinction appearing in Kops's Case [3] between legal compellability and virtual compellability, the legislature obviously intended to make its law as to freedom from coercion to give evidence real and complete" [4] . 1. (1925) 37 C.L.R. 147. 2. (1925) 37 C.L.R., at p. 155. 3. [1894] A.C. 650. 4. (1925) 37 C.L.R., at p. 157.

It is thus very important in approaching the question of whether or not some expression of a judge presiding at a jury trial for a criminal offence offends the section, to bear in mind that the policy of the legislature is that the accused must be under no compulsion of any kind whatever to give evidence as otherwise the capacity to give evidence would be a source of tremendous disadvantage to an accused. In Bataillard v. The King [1] Isaacs J. [2] , expressed the view that the legislature in enacting s. 407 was determined to prevent the enactment in s. 405, that is to say, the ability of the prisoner to give evidence on his own behalf, if not used by him, from being employed as a means of inculpation. He proceeded:

the law remains unchanged, and comment may still be made, either that the prisoner has not made any statement as permitted by that section, or that the statement, if made under it, is not on oath, and therefore may not be considered as weighty as the evidence of witnesses under oath. If, however, reference, direct or indirect, and either by express words or the most subtle allusion, and however much wrapped up, is made to the fact that the prisoner had the power or right to give evidence on oath, and yet failed to give, or in other words, "refrained from giving", evidence on oath, there would be a contravention of the sub-section now under consideration [2] . 1. (1907) 4 C.L.R. 1282. 2. (1907) 4 C.L.R., at p. 1291. 3. (1907) 4 C.L.R., at p. 1291.

Nowadays, even more so than at the time when Bataillard v. The King [1] was decided, it would be quite unreal to imagine that a jury, particularly a jury doing duty in such a court as the Court of Quarter Sessions at Sydney, is unaware of the fact that an accused can give evidence on his own behalf; or, put at its very lowest, it would be very unsafe to act in the administration of the criminal law on the assumption that none of a panel of twelve such jurymen would be aware of the accused's competence in this respect, or that if any of them did know he would be unlikely to communicate his knowledge to his fellow jurors. Accordingly, if the accused is to be accorded the full benefit of his ability to choose to give evidence or to make a statement and to do so without any fear that his choice may be commented upon to his disadvantage, it is in my opinion most important that nothing be said by the presiding judge to call attention to the contrast of the accused's personal position in making a statement with what it might have been if he had taken a different course.

It was decided by this Court in Jackson v. The King [3] that a particular formulation by a Chairman of Quarter Sessions in his charge to the jury was not a comment within the meaning of s. 407. The text of the learned Chairman's statement was as follows:

"That statement" (i.e. of the accused) "is something which the law requires you to take into consideration together with the evidence, but it is not in itself evidence in the same sense as the statement of a witness given upon oath; it is not subject in any way to test by cross-examination." The essence of this decision was that the statement was contrasting the weight of the unsworn and untested statement of the accused with the weight to be accorded to sworn evidence. The Chairman's remarks were not directed to the personal position of the accused or to the course he had taken in making a statement. The remark was strictly limited to the relative value of the statement which had been made. 1. (1918) 25 C.L.R. 113.

In Bataillard v. The King [1] the Supreme Court of New South Wales had followed its own decision in R. v. Macfarlane [2] in deciding that there was no comment in the Crown Prosecutor's statement to the jury in that case as follows:

Bataillard's statement is a statement merely, not upon oath, and the Supreme Court of this State has gone so far as to hold that the statement cannot be regarded as evidence. It simply goes to the jury for what it is worth. A man makes a statement from the dock not on oath, not subject to the greatest of all tests - that of cross-examination. When people have their backs against the wall I don't think they will stick at telling a few lies [3] . In R. v. Macfarlane [2] the presiding judge was reported as saying something like this: You have heard the attack made upon the Crown witnesses but you must bear in mind that the evidence of those witnesses was made upon oath while the statement of the prisoners was not on oath [4] . The Supreme Court thought that this was merely a statement of fact and therefore not a comment. This Court in Bataillard v. The King [1] thought the Supreme Court's decision that this expression of the judge was not in breach of s. 407 to be correct but did not subscribe to the view that a statement of fact could not be a comment. 1. (1907) 4 C.L.R. 1282. 2. (1907) 7 S.R. (N.S.W.) 149. 3. (1907) 4 C.L.R., at p. 1287. 4. (1907) 7 S.R. (N.S.W.) 149. 5. (1907) 7 S.R. (N.S.W.), at p. 150. 6. (1907) 4 C.L.R. 1282.

In Bataillard v. The King [1] this Court expressed the view that the words of the prosecutor which I have quoted, standing alone, did not transgress the statute. Griffith C.J. was not at all sure that it ought to be inferred that the words would not convey a reference to the fact of the accused person's competency, i.e. to give evidence. Isaacs J., with nothing more than the words themselves before him, was prepared to regard them as a comment on the likelihood of an accused in making a statement to overstep the truth to save himself, and on the fact that his statement, not being on oath, was not capable of being tested by cross-examination, and that, so regarded, the prosecutor's words were not a comment on the accused's having refrained from giving evidence. Higgins J. could find no suggestion in the words of the prosecutor that the prisoner was at liberty to give evidence on oath and that he had failed to avail himself of the privilege. In the result the Court rescinded the special leave which had been granted with a view to having the question of the regularity of the trial in this respect examined. But clearly the Court was not sanctioning the use of the prosecutor's expressions in all circumstances.

I would not wish in the least to disturb authorities which allow the presiding judge to call attention to the unsworn and untested character of the accused's statement and to compare its weight with that of a sworn and tested statement or, for that matter, to speak of its weight, without actual comparison with other material in the case; but there are very narrow limits within which such a statement must be confined if it is not to amount to a comment upon the accused's failure to give evidence. The circumstance that jurors may be expected to know that an accused may give evidence on his own behalf and to observe that he has not done so may to some minds bring an air of unreality to the continuing prohibition of the section; but to my mind these circumstances make it all the more important that the presiding judge should not call attention, particularly in his summing up, directly or indirectly, to the fact that the accused has not submitted himself to cross-examination. Reference to "the dock" as the place from which he makes his statement is, it seems to me, unnecessary for the legitimate purpose of calling attention to the relative weight of the statement which the prisoner has made and it must tend, at the very least, to draw attention to the prisoner's personal position in contrast to the position he might have taken in "the box". In my opinion, therefore, it should be avoided.

It may be that the line between what is permissible and what is not is a fine one but that seems to me to emphasize the scrupulous caution which the presiding judge must exercise. The remarks of Street C.J. in R. v. Corbett [1] are much in point in this connexion.

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.

I turn now to the second question, viz. whether this is a matter for special leave. Street C.J. in R. v. Ellis [1] thought that a breach of s. 407 necessarily involved a substantial miscarriage of justice: but this Court was not prepared to accept that view. It held that such a breach, though involving a miscarriage, did not necessarily involve a substantial miscarriage of justice: see R. v. Ellis [2] . In that case the Court of Criminal Appeal had not expressly found that there had been no substantial miscarriage of justice but it had ordered a new trial. This Court, on the appeal of the Crown by special leave, rescinded that leave, though disagreeing with the Supreme Court as to the effect of a breach of s. 407. The Court appeared to think what whilst there was material on which the Court of Criminal Appeal could have decided that no substantial miscarriage had been occasioned by the breach of s. 407, the case was not one in which it should act on any view of its own upon that question.

1. (1925) 25 S.R. (N.S.W.) 575, at p. 579. 2. (1925) 37 C.L.R. 147.

In the present case the Court of Criminal Appeal has formed and expressed the view that there was no substantial miscarriage of justice. I find no reason in the case for thinking that the Court of Criminal Appeal erred in any matter of principle in arriving at that conclusion or that the case is one in which, upon the facts of the matter, there is any special reason that that question ought to be re-examined by this Court. Accordingly, having expressed my own firm opinion as to the propriety of the learned Chairman's remarks, I have reached the conclusion that the case is not one for special leave.

It was submitted in support of this motion for special leave to appeal that the Court of Criminal Appeal ought to have set aside the conviction of each applicant because of the way in which the trial judge dealt with their statements made at the trial under s. 405 (1) of the Crimes Act N.S.W.. This subsection provides that an accused may at his trial make a statement without being liable to be examined on it by the prosecutor or the judge. The points on which special leave to appeal is sought are that the summing up infringed upon the rule in s. 407 of the Crimes Act against comment on an accused not giving evidence; and that the trial judge deprecated the evidentiary value of the statements which the accused made at the trial. The first is a possible point for leave; but the second is not.

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.

I think that special leave to appeal should not be granted.

I have come to the conclusion that the learned Chairman, in charging the jury by saying "but the procedure is this" before informing them that the statements by the accused men were not upon oath and that they could not be cross-examined, and then by adding "under these circumstances" the accused could not be asked a single question, went beyond commenting upon the character of the statements and unintentionally infringed s. 407 of the Crimes Act N.S.W. by commenting upon their making statements rather than giving evidence.

I agree, however, that this is not a case for granting special leave to appeal. I differ from the Court of Criminal Appeal only in the application of well-established principles in, what seems to me, a doubtful case. Indeed, having regard to what must now be the commonest of common knowledge, namely, that an accused person is entitled to give evidence on his own behalf, it would only be an exceptional case that could call for the intervention of this Court.

I am clearly of opinion that, whatever view one takes of the language of the learned Chairman of Quarter Sessions that is complained of, this is not a case for special leave to appeal to this Court. I would be content to say nothing more, but as the substance of the complaint has been discussed in differing ways by other members of the Court I feel I should express my view of the matters that were argued.

The New South Wales Crimes Act, 1900, as amended, provides in s. 407 (2) that "the failure of an accused person to give evidence shall not be the subject of any comment by the judge or counsel for the Crown". Before the amendment that was made in 1926 as the result of the decision in R. v. Ellis [1] , the subject on which comment was forbidden was expressed slightly differently. It was then that the accused person had "refrained from giving evidence on oath on his own behalf". But the change in the words at this point is of no consequence. The present form is that of the English Criminal Evidence Act, 1898 - except that that applies only to comment by the prosecution and not by the judge. "Failure" here expresses the same idea as refraining: see R. v. Earsman [2] . And the word "evidence" means, I consider, evidence on oath (or by affirmation) - that is evidence given from the witness box. It does not include an unsworn statement from the dock. The question whether such a statement ought, for other purposes, to be described as "evidence" has been much discussed: see R. v. Riley [1] ; R. v. Kelly [2] ; R. v. McKenna [3] and in South Africa in R. v. Wooldridge [4] ; and see also Cross, Evidence, 2nd ed. (1963), pp. 163, 164; Cowen and Carter, Essays on the Law of Evidence (1956), pp. 209-218. But it does not affect the meaning of the word evidence in s. 407 (2). If an accused person does not say anything, either from the dock or from the witness box, about some matter as to which the evidence for the prosecution calls for an explanation or denial, the judge is not prohibited from commenting on his reticence - provided that what he says does not amount to a comment that he failed to give evidence on oath. That was clearly so under the enactment as it was before 1926: Bataillard v. The King [5] per Isaacs J. [6] ; R. v. Moir [7] . And in my opinion it is still so: see Reg. v. Dallard [8] .

1. (1925) 37 C.L.R. 147. 2. (1936) 53 W.N. (N.S.W.) 118. 3. (1940) 40 S.R. (N.S.W.) 111. 4. (1946) 46 S.R. (N.S.W.) 344. 5. [1951] Q.S.R. 299. 6. (1957) 1 S.A. 5 [S.R.]. 7. (1907) 4 C.L.R. 1282. 8. (1907) 4 C.L.R., at p. 1291. 9. (1912) 12 S.R. (N.S.W.) 111. 10. [1957] N.Z.L.R. 1092, at p. 1097.

A direct breach of the statutory prohibition of comment is prima facie a ground for the quashing of a conviction by a court of criminal appeal: Stuart v. The Queen [9] . The present case is not one in which there has been a direct breach. But it is argued that there has been a failure scrupulously to observe the statute. It is said that sometimes by insidious suggestions and calculated words or gestures the attention of juries has been directed to an accused having failed to enter the witness box, and that this is a case of that sort. The problem is not confined to New South Wales. Wherever comment is forbidden complaints are heard from time to time of words that, without actually transgressing, come close to the line. In many jurisdictions in the United States that has been so. Professor Maguire in his book Evidence of Guilt (1959), p. 47 notes that "in jurisdictions where adverse comment is held to be forbidden, prosecutors constantly play, or are accused of playing with forbidden fire": and see for examples American Law Reports Annotated, vol. 68, pp. 1108-1166 and vol. 94, pp. 701-708.

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:

There can be no doubt that now almost every man called upon to serve on a jury knows perfectly well that a prisoner can give evidence if he chooses; and every day, probably, juries look with growing suspicion upon accused persons who refuse to do so. Men are naturally inclined to a conclusion adverse to a man who does not answer an allegation or give an explanation of facts when an answer or an explanation would ordinarily be expected. It is from this that the difficulty arises in cases such as the present. 1. (1907) 4 C.L.R., at p. 1288.

Until 1891 the old rule of the common law which prevented accused persons from giving evidence on their own behalf was in force in New South Wales - as, with some exceptions, it was in England until 1898. It had already, in 1882, been abrogated by statute in South Australia, in New Zealand in 1889 and earlier still in several States of the United States. In some places, including South Australia, the enactments enabling an accused person to give evidence were coupled with provisions to the effect that no presumption of guilt should arise or no inference be drawn from his electing not to do so. The New Zealand Act provided that no comment should be made on his not doing so. But the New South Wales statute, the Criminal Law and Evidence Amendment Act, 1891, s. 6 (now s. 407 of the Crimes Act 1900) said only that an accused person should be competent, but not compellable, to give evidence. It said nothing as to comment or inference if he did not do so. It was in these circumstances that the case of R. v. Kops [1] occurred. On a trial for attempted arson circumstantial evidence pointed strongly to the accused: a hat, identified as his, had contained a burning candle arranged to ignite inflammable material. The Chairman of Quarter Sessions, a District Court judge, told the jury that the law - it was then new law - permitted the accused to give evidence, but that he need not do so unless he wished. He went on to say:

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.

In New South Wales, however, the discretion has been removed. It did not last long. In 1898 the Accused Persons' Evidence Act enacted the forerunner of the present provision - that it should not be lawful to comment that an accused person had refrained from giving evidence. That was a reversal of the law as laid down in Kops' Case [5] . But it is perhaps wrong to see it only as a reaction from that decision of four years earlier. Proposals that accused persons should be permitted to give evidence on oath, and considerations of the qualifications that should be entailed upon the conferring of such a right, had been the subject of vigorous controversy in England in the meantime - until the passing of the Criminal Evidence Act 1898: see The Proof of Guilt (1963) by Professor Glanville Williams, pp. 45-48. It may be, as Isaacs J. suggested in Bataillard's Case [1] that the New South Wales legislature took the very words "comment" and "refrained" from the Privy Council judgment - but that is not necessarily so; for they had been used since 1899 in the same context in the New Zealand Criminal Evidence Act. The New South Wales Act of 1898, which was passed in November 1898, went further than the English Act (which had been passed in the preceding August and had come into operation in October) in that it prohibited comment by anyone, the judge as much as the prosecutor. But this was not a novel provision: the ultimate proviso to s. 34 in the Victorian Crimes Act 1891 was to the same effect.

1. (1893) 14 N.S.W.L.R. 150; [1894] A.C. 650, at p. 653. 2. (1907) 4 C.L.R., at p. 1290.

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. The former attitude is, as Professor Glanville Williams has shown (ibid. pp. 37-71) largely the result of deeply rooted fears and memories of Star Chamber methods. The latter is the product of natural processes of reasoning. As Frankfurter J. put it in Adamson v. California [2] :

Sensible and just-minded men, in important affairs of life, deem it significant that a man remains silent when confronted with serious and responsible evidence against himself which it is within his power to contradict. 1. (1947) 171 A.L.R. 1223, at p. 1233.

The New South Wales enactment does not run into the logical difficulty that arises from legislation forbidding any inference or presumption from an accused not giving evidence. Such provisions, considered and criticized in Wigmore on Evidence, vol. 8, may not be always as futile as Windeyer J. thought in Kops' Case [3] , when he said,

the operations of the mind cannot be neutralized by an Act of Parliament, nor our instinctive beliefs be obliterated by a proviso. For, as Frankfurter J. has said, "When it is urged that it is a psychological impossibility not to have a presumption arise in the minds of jurors against an accused who fails to testify, the short answer is that Congress legislated on a contrary assumption and not without support in experience. It was for Congress to decide whether what it deemed legally significant was psychologically futile": Bruno v. United States [1] . The South Australian Act considered by this Court in Tuckiar v. The King [2] , for example, provides that "no presumption of guilt shall be made from the fact of an accused person electing not to give evidence". 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. 1. (1893) 14 N.S.W.L.R., at p. 174. 2. (1939) 308 U.S. 287, at p. 294 [84 Law. Ed. 257, at p. 261]. 3. (1934) 52 C.L.R. 335.

No doubt to deny the judge the right to explain to a jury what inferences can properly be drawn from a failure to give evidence may in some cases be to the disadvantage of the accused, for the jury may infer more from his silence than they ought to do. An accused person is never required to prove his innocence: his silence can never displace the onus that is on the prosecution to prove his guilt beyond reasonable doubt. A failure to offer an explanation does not of itself prove anything. Nor does it, in any strict sense, corroborate other evidence. But the failure of an accused person to contradict on oath evidence that to his knowledge must be true or untrue can logically be regarded as increasing the probability that it is true. That is to say a failure to deny or explain may make evidence more convincing, but it does not supply its deficiencies. A direction by the judge on such matters - and they are those that Owen J. had in mind in 1893 in the passage I have quoted above - might no doubt be helpful to the accused in some cases. But the Act proceeds on the assumption - and it may be a valid assumption - that in general, it is more in the interest of the accused and of justice to forbid comment than to allow it.

The difficulty of cases such as this lies in obeying the prohibition of s. 407 (2) of the Crimes Act when the accused has not given evidence on oath but has made an unsworn statement pursuant to s. 405. The latter provision permitting unsworn statements is derived from s. 470 of the Criminal Law Amendment Act, 1883. It had thus been part of the law of New South Wales for some years before sworn evidence by an accused was permitted. It recognizes and regularizes a practice, followed by some judges in England during the nineteenth century, of allowing the prisoner to make a statement from the dock although at that period he could not give evidence on oath. The practice had two advantages. On the one hand it enabled the accused person to put his version of the facts or his explanation before the jury, although he was not allowed to verify it by oath. On the other, it deprived his counsel of a favourite trick of advocacy, of saying when addressing the jury that the prisoner's mouth was closed and to hint that if only he were allowed to speak his innocence would appear.

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.

The solution that has been adopted lies in ignoring the probabilities that the jury will know of the right of the accused to give evidence on oath and that a reference to the distinction between sworn and unsworn evidence will call it to their minds. The statutory prohibition against comment is taken as disobeyed only if the judge in directing the jury as to the use they may make of an unsworn statement dwells on the topic in such a way as not only to distinguish evidence not on oath from evidence on oath, but also to contrast the course which the accused took with an alternative course open to him which he did not take. This solution may seem to be a compromise reconciliation between a duty to refrain from comment and a duty to give a proper direction. But it has the sanction of authority. Ever since Jackson's Case [1] , the form of words that was there used has been regarded as proper - indeed as a formula to be adhered to. When it is suggested that language used by a judge or prosecutor amounts to a forbidden comment, his words are measured against that formula as if it were a sealed pattern. And whether or not there was a breach of the Act is determined by considering the degree of verbal conformity or disconformity with that formula. That approach is legally safe, although it is hardly logically satisfying. As Isaacs J. said in Bataillard's Case [2] ,

the question whether the law has been so contravened must depend in each case on the words used and the circumstances in which they are used. It is really a question of fact, on which, as Griffith C.J. said in that case [3] , different minds might readily arrive at different conclusions - as indeed has happened in this case. For myself, giving the best consideration that, without knowing what counsel had said in their addresses, I can to what the learned Chairman of Quarter Sessions said, I am far from satisfied that it amounted to a comment that, consistently with what has been held to be permissible in other cases, was unlawful. I do not think that the decision of the Supreme Court was wrong. But in any event I am satisfied that no ground has been shewn for special leave to appeal. 1. (1918) 25 C.L.R. 113. 2. (1907) 4 C.L.R., at p. 1291. 3. (1907) 4 C.L.R., at p. 1289. Owen J.

I have had the advantage of reading the judgment of the Chief Justice. I agree with it and with the orders he proposes.