Petty v Maiden v The Queen [1991] HCA 34; (1991) 173 CLR 95

R v Ellis, unreported; CCA Supreme Court of SA; Library No 485/97; 20 March 1998

Thompson v The Queen [1999] WASCA 266

1 TEMPLEMAN J: The appellant was convicted after trial by Judge and jury in the District Court on an indictment containing a single count: that the appellant had in his possession a prohibited drug, namely ecstasy, with intent to sell or supply to another.

2 The appellant admitted possession of 27 tablets of ecstasy. He did so in an interview with police officers which was recorded on videotape. In that interview the appellant asserted that the tablets were intended for his personal use.

3 The appellant did not give evidence at his trial. He relied on the semi-exculpatory statements he had made during the course of the interview with police officers. The video record of that interview was played to the jury as part of the prosecution case, in order to prove the appellant's admissions.

4 In his charge to the jury, the learned trial Judge (who referred to the drug as MDMA) said:

"The question you must ask yourselves is whether you are satisfied beyond reasonable doubt the accused [ie the appellant] intended to sell or supply the MDMA tablets or some of them to another and boiled down that is the question. Has the prosecution proved it beyond reasonable doubt?"

5 The Judge then reminded the jury that they had heard from two prosecution witnesses and referred to the fact that the appellant had not given evidence. The Judge said:

"He has a right to silence and he exercised the right to silence."

6 In the next part of the charge the Judge explained the significance of the appellant's right to silence and of his admissions. The appellant has no complaint about that part of his Honour's charge. I will, however, set it out in order to provide a context for the part which followed and which, it is submitted, discloses error.

"It is important that I tell you that his silence in this case is not evidence against him and does not amount to an admission by him and it cannot be used to fill in any gaps in the evidence tendered by the prosecution if you feel there are some. It may not be used as a makeweight in assessing whether the prosecution has proved its case beyond reasonable doubt. The exercise of a right to silence cannot be held against a person and if you think about it it would be bizarre if the law gave a person a right and then permitted the exercise of the right to be held against the person.

However, you also know that the accused did not totally exercise his right to remain silent when he was interviewed by the police. He could have, if he had wished, not said a word during that process and he did say some things. He had a lawyer there and on occasions he said, 'No comment,' but on other occasions either personally or through his lawyer he said things to police and you have the video of the interview. He chose to, in a sense, speak to the police on the occasions that he did and that interview has been put before you as evidence by the prosecution as part of the prosecution case.

In a nutshell that evidence was put before you to prove possession, that is, to prove what occurred, basically, to prove the finding of things, to prove - basically to prove possession because in relation to that you will be aware the accused person admits that the drugs were his so it proves that because the accused admitted it. He admits it. He made what the lawyers called admissions and they are obviously against his interests, in other words he confessed. An admission is a confession. He confessed that he was in possession and as is, I think, pointed out by one of the counsel that was an admission against interest and it is given weight in the system. It is not disputed, of course, that he did possess those drugs.

Now, the video cassette of the interview, given that it has been tendered by the prosecution for the purpose I have just explained, it also, however, becomes material, evidence, for the accused as well as against him; in other words, once it goes in, it can be used for all purposes, legitimate purposes.

Those parts of the interview that are relied on by the prosecution you can accept as being not disputed by the accused and they are, as I have said, admissions, concessions, if you like, made by the accused person, in the sense that I have just explained, against his interests.

But the video also contains other matters that the accused person relies on in his case and he relies on his denials of police allegations and also his assertions, for example, his assertion that he intended only personal use. He relies on those statements in the video. Of course, his denials of police allegations and his assertions, such as his assertion of intending personal use, are disputed by the prosecution."

7 The next section of his Honour's charge, which followed immediately, is contentious. His Honour said:

"The denial - his denials and the assertions that he makes, are not supported by evidence from him on oath in the witness box and therefore those matters do not have the same weight as evidence, as his admissions or confession, if you like, of possession, for example, against interest, doesn't have the same evidential weight, but the accused's denials and his assertions are still matters for you to consider. They are before you and you give them what weight you see fit."

8 In his single ground of appeal against conviction, the appellant contends that:

"The Learned Trial Judge erred in law by directing the jury that '[the] denials and assertions that the Applicant (sic) makes, are not supported by evidence from him on oath in the witness box and therefore those matters do not have the same weight as evidence, as his admissions or confession' thereby undermining the Applicant's (sic) right to remain silent at trial, and causing a substantial miscarriage of justice."

9 It is to be noted that the appellant characterises the relevant part of the Judge's charge as a direction, not as a comment. As the High Court said in Azzopardi v The Queen (2001) 205 CLR 50 at 69, the distinction is important.

"The distinction between a matter for comment and a matter for judicial direction reflects the fundamental division of functions in a criminal trial between the judge and a jury. It is for the jury to decide the facts of the case. It is for the judge to explain to the jury so much of the law as they need to know in deciding the real issue or issues in the case."

10 In this jurisdiction, the distinction is emphasised by s 638 of the Criminal Code, which provides that after the evidence has concluded and the jury has been addressed:

"It is the duty of the Court to instruct the jury as to the law applicable to the case, with such observations upon the evidence as the Court thinks fit to make." (emphasis supplied)

11 In the present case, the Judge directed the jury about five matters relevant to this appeal. They were as follows.

2. The jury could accept the admissions made by the appellant in the course of the interview with police officers. (Strictly, the Judge should have directed the jury that they could accept the admissions only if satisfied as to their truth and accuracy. Nothing turns on that omission for present purposes.)

3. The video record of interview, having been tendered by the prosecution for the purpose of proving the admissions, became evidence in the trial and could be used "for the (appellant) as well as against him".

4. Because the appellant's denials and assertions were not made on oath in the witness box they did not have the same evidential weight as his admissions.

5. The weight to be given by the jury to the appellant's denials and assertions was a matter for them.

12 Juries are instructed routinely that they should decide the case on the evidence presented to them during the course of the trial, and on nothing else. Where the evidence includes a video record of an interview in which admissions are made by an accused person, it is necessary for the Judge to direct the jury about the use they may make of that evidence. Once that is done, it is appropriate to direct the jury that any exculpatory statements made by an accused person in the same interview do not have the same weight as admissions. The reason they do not have the same weight is that the exculpatory statements have not been made on oath and have not been tested by cross-examination.

13 The legal explanation for the distinction lies in the fact that although both the admissions and the exculpatory statements are hearsay, evidence of an admission or confession is admissible as an exception to the hearsay rule. The exculpatory statements are also hearsay. But by long established custom, such exculpatory statements are also admitted into evidence. As Griffiths CJ said in Jack v Smail [1905] HCA 25; (1905) 2 CLR 684 at 695, "that is simply a rule of fair play". However, the fact that such statements are admitted does not change their character as hearsay.

14 In Spence v Demasi (1988) 48 SASR 538 at 540, Cox J in the Supreme Court of South Australia explained the position in the following passage. The other members of the Court, White and Perry JJ, agreed with this part of his Honour's judgment:

"The rule against hearsay evidence usually operates to prevent a party from tendering his self-serving statements made out of court in proof of the truth of the matters so asserted. The problem comes with mixed statements, tendered by an opponent, containing admissions against the party making them and also exculpatory statements, whether relating to the admissions or on other relevant topics. The position in the criminal court, I think, is clear. It is common for the Crown to tender a record of the accused's interrogation by the police, and often this will contain a mixture of admissions and self-serving statements. The Crown cannot pick and choose. It cannot put in only the damaging questions and answers, or have the admissions treated as evidence and the rest rejected or ignored as hearsay. The whole interrogation (or narrative statement, as the case may be) goes before the jury and it is for them to decide what parts, if any, they will act upon in reaching their verdict. They may give different weight to different parts: see R v Higgins [1828] EngR 201; (1829) 3 C & P 603; 172 ER 565. The failure of the accused to give evidence may well influence their attitude to the self-serving answers. A modern statement is found in the judgment of the English Court of Appeal in R v Duncan (1981) 73 Cr App R 359 at 365:

'It is, to say the least, not helpful to try to explain to the jury that the exculpatory parts of the statement are something less than evidence of the facts they state. Equally, where appropriate, as it usually will be, the judge may, and should, point out that the incriminating parts are likely to be true (otherwise why say them?), whereas the excuses do not have the same weight. Nor is there any reason why, again where appropriate, the judge should not comment in relation to the exculpatory remarks upon the election of the accused not to give evidence.'

The Full Court of this State declared the law to substantially the same effect in R v Karpany [1937] SAS 377. It followed precedents extending back to R v Jones [1825] EngR 204; (1827) 2 C & P 629; 172 ER 285. Similar decisions in other States, with respect to the criminal jurisdiction, are Sharp v Hotel International Ltd [1969] VicRp 12; [1969] VR 103 at 109-110; R v Williamson [1972] 2 NSWLR 281, 295; and R v Cox [1986] 2 Qd R 55: see also Jack v Smail [1905] HCA 25; (1905) 2 CLR 684 at 695, 707-708. In England the rule, as enunciated in Duncan, wavered, perhaps, in R v Kurshid [1984] Crim L R 288 but was affirmed in R v Hamand (1985) 82 Cr App R 65."

15 In a postscript, Cox J referred also to the then very recent decision of the House of Lords in R v Sharp [1988] 1 WLR 7 in which the passage from R v Duncan quoted above was approved. In Sharp, Lord Havers (with whom the other members of the House of Lords agreed) said (at p 15) he could not improve on the language used in the extract from Duncan set out above, and would not attempt to do so.

16 In the course of his submissions, leading counsel for the appellant urged caution on the Court in following the English authorities referred to above. That was, he submitted:

"because English jurisprudence has not developed in recent years as it has in Australia in relation to the preservation of the right to silence, both pre-trial and during trial."

17 In support of that submission, counsel referred to the decisions of the High Court in Weissensteiner v The Queen [1993] HCA 65; (1993) 178 CLR 217, RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 and Azzopardi v The Queen (supra). None of those cases is in point, however. Broadly, each case is concerned with the extent to which a trial Judge may comment on the failure of an accused person to give evidence when he or she alone might be expected to know the facts which would explain the prosecution case: in short, where the prosecution case depends upon circumstantial evidence. That was the position in Weissensteiner, but not in RPS, where direct evidence had been given by the complainant of the offences with which the appellant had been charged.

18 In the present case, the Judge's direction to the jury bore no resemblance to the kind of direction given in the three cases referred to above: that in all the circumstances, the jury might more readily accept the prosecution case because the accused had not given evidence to contradict

it. Thus, the observations of the High Court about the way in which a trial Judge should direct a jury in the circumstances with which those cases were concerned have no present relevance.

19 The position is, therefore, that there is persuasive authority to the effect that in the circumstances of this case, it was appropriate for the trial Judge to point out that the appellant's denials and assertions did not have the same weight as his admissions. And that was because, as the Judge explained, the denials and assertions had not been supported by evidence on oath.

20 That was not to suggest that the appellant should have given evidence. The Judge had directed the jury, only a little earlier, about the appellant's right to silence. The direction was given in clear terms, and was emphasised. I do not consider, therefore, that the appellant's right to silence was undermined.

22 WHEELER J: I have had the advantage of reading in draft the reasons for decision of Templeman J. I agree with them, and have nothing to add.

23 MCLURE J: I have had the benefit of reading the reasons to be published by Templeman J. I agree with his conclusion but state my own reasons for reaching that conclusion.

24 The appellant challenges the correctness of a statement made by the trial Judge in his summing up to the jury relating to self-serving out of court statements made by the appellant in a video taped record of interview with police. The trial Judge said:

"The denial - his denials and the assertions that he makes, are not supported by evidence from him on oath in the witness box and therefore those matters do not have the same weight [emphasis added] as evidence, as his admissions or confession, if you like, of possession, for example, against interest, doesn't have the same evidential weight, but the accused's denials and his assertions are still matters for you to consider. They are before you and you give them what weight you see fit."

25 All relevant parts of the summing up are set out in the reasons of Templeman J. The case argued on behalf of the appellant at the hearing of the appeal was not on all fours with the ground of appeal or with the written submissions filed on his behalf. The sole complaint on appeal is

that the trial Judge directed the jury on weight rather than simply commenting on it.

26 As I understand the appellant's submission it is that the trial Judge's statement was in the nature of a direction to the jury which would lead them to suppose that they were bound to treat his statement as binding. Senior counsel for the appellant submitted there would be no objection if the trial Judge had stated that "those matters may not have the same weight" together with the usual statement making it clear that it is for the jury to determine the facts on the evidence and that any comment by the trial Judge is merely for their consideration.

27 The trial Judge's charge has similarities with what was said by Lord Lane CJ in R v Duncan (1981) 73 Cr App R 359. He said:

"Where a 'mixed' statement is under consideration by the jury in a case where the defendant has not given evidence, it seems to us that the simplest, and, therefore, the method most likely to produce a just result, is for the jury to be told that the whole statement, both the incriminating parts and the excuses or explanations, must be considered by them in deciding where the truth lies. It is, to say the least, not helpful to try to explain to the jury that the exculpatory parts of the statement are something less than evidence of the facts they state. Equally, where appropriate, as it usually will be, the judge may, and should, point out that the incriminating parts are likely to be true (otherwise why say them?), whereas the excuses do not have the same weight. Nor is there any reason why, again where appropriate, the judge should not comment in relation to the exculpatory remarks upon the election of the accused not to give evidence."

28 It is apparent that Lord Lane is referring to two separate and distinct matters in the context of the weight to be accorded to exculpatory portions. They are firstly, their self serving character (in a situation where an accused has an incentive to contrive a beneficial statement) and secondly that the evidence is not confirmed on oath. Lord Lane's statement needs to be considered in context. As a general rule, self-serving out of court statements made by an accused are inadmissible as evidence of the truth of the facts stated. On the other hand, an out of court admission against interest is received as evidence of the truth of the statement as an exception to the rule against hearsay. At the time Duncan (supra) was decided, there was a divergence in English authority as to whether the exculpatory portion of a mixed statement is only admitted to show the context in which the admission was made or alternatively as evidence of its truth.

29 The House of Lords in R v Sharp [1988] 1 WLR 7 approved the reasoning and result in Duncan (supra). However, although the Court expressly approved Lord Lane's statement set out above Lord Havers (with whom the other members of the Court agreed) said:

"The view expressed in R v Duncan is that the whole statement should be left to the jury as evidence of the facts but that attention should be drawn, when appropriate, to the different weight they might think it right to attach to the admission as opposed to the explanation or excuses."

30 The clear inference from this statement is that the weight and relative weight to be accorded to the admission and the exculpatory statements is a matter for the jury. The House of Lords in R v Aziz [1996] AC 41 rejected a Crown attempt to persuade it to reconsider Sharp (supra). The Crown case was that the law as stated in Sharp (supra) unduly favoured defendants who do not testify. Lord Steyn, with whom the other members of the Court agreed, rejected that submission and in so doing referred to a Judge's entitlement in appropriate circumstances to comment adversely on the quality of the exculpatory parts of a mixed statement.

31 Thomas J in R v Cox [1986] 2 Qd R 55 at 65 was critical of Lord Lane's statement that it would usually be appropriate for the Judge to point out that the incriminating parts are likely to be true whereas the excuses do not have the same weight. He said (at 65):

"With respect, it seems to me be undesirable that juries be given general a priori directions as to what sorts of evidence are likely to be true, or as to the weight which should be accorded to different parts of the one statement. The matter of weight is for them, and the weight of each part of the statement should be determined in the light of the whole of the evidence. There is, of course, no reason why the trial judge should not point out that such statements have not been made on oath and (where appropriate) that they have not been tested by cross-examination. He may explain the traditional reasons why admissions against interests are commonly regarded as reliable evidence, and make any appropriate comments about particular parts of the evidence. The weight which may fairly be accorded to a self-serving statement varies so much from case to case that it is unwise to lay down any general disparaging directions concerning such statements, although of course, critical comments may be made in appropriate cases."

32 In my respectful opinion, there is merit in Thomas J's criticism. Further, it is the case that the weight, or relative weight, to be given to the exculpatory portion of a mixed statement is a matter for the jury on which a Judge may comment but not direct.

33 The question in issue is whether the trial Judge in his summing up led the jury to believe that it was bound to give different, and in particular less, weight to the exculpatory portions of the video taped interview. The only live fact in issue at trial was whether the appellant's admitted possession of ecstasy was with intent to sell or supply it to another. The appellant had made a pre-trial admission of possession of the drugs but in his record of interview said they were for his personal use and he denied any intent to sell or supply.

34 In the first sentence of the paragraph complained of, the trial Judge conflates the two matters affecting weight referred to by Lord Lane CJ in Duncan (supra). If considered in isolation (and assuming that the jury understands the technical legal concept of "weight" to be accorded to evidence), the first sentence may have erroneously led the jury to believe that it was bound to give less weight to the appellant's exculpatory evidence than to his admission of possession or to exculpatory evidence given on oath. However, such an impression is immediately contradicted in the final sentence of the paragraph complained of where the trial Judge says that the accused's denials and his assertions that the drugs were for his personal use are "before you and you give them what weight you see fit".

35 In an even broader context, the trial Judge repeatedly pointed out to the jury that it was the sole judge of the facts. In his opening remarks to the jury he said:

"Then at the end of the case it's my job to sum up the law to you, to tell you what the law is that you must apply, and my task there is to try and do that in as intelligible a way as possible and what I tell you about the law you must accept. You also as a group are judges, but of an entirely different issue. It's for you to judge the facts. It's for you to decide what the facts are and you listen to the evidence and you will be required to do that. It is important to realise your power in that regard. It's entirely up to you what you make of the facts and what facts you decide exist in the case, so we are each judges but in different areas. We each have exclusive power, in a sense, in the area of our involvement."

36 Then again in his summing up shortly after the paragraph complained of the trial Judge said:

"As I mentioned at the beginning of the trial, ladies and gentlemen, and I just realised I didn't emphasise perhaps again as I should have at the beginning of this address, it's entirely up to you what you make of the facts. It's entirely up to you how you view the evidence. The findings that you make about the facts are entirely your business and each of the counsel has put a point of view to you that you can either accept or not.

It's up to you what you make of the facts and what you decide the facts to be, so if you get any impression from me that I'm subtly suggesting you go one way or the other, put it out of your mind. It has nothing to do with me. It's your business entirely and I will be doing my best to be right down the middle."

37 I am satisfied that the jury would not have been left with any impression that they were bound to accord less weight to the self-serving out of court exculpatory statements For these reasons I would also dismiss the appeal.