Ground 1 : Error in Judge's Summing Up.
36Towards the end of the summing up, the trial judge instructed the jury in these terms :-
Members of the jury, you are aware that we recognize the right to silence in our community. In other words, if an accused person or a suspect is spoken to by police the person is told that they do not need to answer police questions. And if they elect to exercise their right to silence then that is their entitlement. No adverse inference can be drawn from the fact that a person exercises their right to silence. Similarly, in the case of a trial, an accused may give evidence in his trial but there is no obligation upon him to do so. Just as in the case of police interviews, in court proceedings we recognize the right to silence. The prosecution bears the onus of proving an accused's guilt beyond reasonable doubt and an accused person does not have to prove anything, he is presumed to be innocent unless and until the prosecution prove him guilty beyond reasonable doubt. On the other hand, in this case, the Crown submits that if there was an alternative explanation to the presence of fingerprint and palm print then that explanation would be known to the accused and, in the absence of any explanation from the accused about the fingerprint and palm print, you may find it easier to accept the prosecution case. It is up to you to decide what weight you give to that submission by the Crown about the absence of any explanation for the fingerprint and palm print. However, once again I remind you that you cannot treat the accused's silence as an admission of guilt or as filling in any gaps in the prosecution case. There may be good reasons unknown to you why an accused would choose not to give evidence. For example, he might be concerned that he might be confused by cross-examination and he might decide that he prefers to rely upon an argument about weakness in the Crown case and to argue that the Crown cannot prove the case beyond reasonable doubt because the onus is always on the Crown to prove the case beyond reasonable doubt and there is no obligation on an accused to prove or say anything.
37The trial judge then went on to summarise the submissions put by the Crown and by the appellant's counsel in their respective closing addresses.
38The first thing to note is that the italicised excerpt from the passage set out above was not a submission made by the trial advocate. At no time in the course of the trial advocate's closing address was any reference made to an explanation known to the accused or to the relative ease with which the prosecution case might be accepted by the jury in the absence of an explanation.
39The appellant contends that this part of the summing up represents a contravention of RPS v R [2000] HCA 3 ; 199 CLR 620, in particular the statement from the joint judgment that "in a case where the prosecution leads direct evidence of the accused's guilt it is therefore not right to say that it would be reasonable to expect the accused to give evidence denying or contradicting that direct evidence." The appellant then submits that the case against him was a direct evidence case. The appellant also submits that the trial judge erred in that her Honour directed the jury that the appellant's failure to give evidence "could enable the jury to feel more confident in relying on the prosecution evidence." : RPS v R at [40] ; 637.
40There are a number of inaccuracies in these submissions. First, as I have already observed at [18], the case against the appellant was indirect. There was no identification of the appellant as an offender by the victim or by Mr Puha. The Crown case consisted of the combination of Mr Puha 's evidence, the appellant's tattoo and the presence of the appellant's prints inside the premises. By way of contrast, RPS was a direct evidence case consisting of the complainant's evidence against her father and some partial admissions by the accused.
41The importance of the distinction between a direct and an indirect prosecution case, in determining whether any direction or comment relating to the failure of an accused to give or call evidence infringes the right to silence, was highlighted in the following passage of the plurality judgment at [34] - [35] in RPS :-
In a case where the prosecution leads direct evidence of the accused's guilt (as will usually be the case where sexual offences against a young person are alleged) it is, therefore, not right to say that it would be reasonable to expect the accused to give evidence denying or contradicting that direct evidence. Especially will that be so where more than one count is charged. In such a case, the course which the accused takes may very well be affected greatly by whether the denial or contradiction of each charge can be maintained with the same degree of force.
The present case (and cases of a similar kind) must be contrasted with that considered by this Court in Weissensteiner. There the prosecution case was that the accused's guilt was to be inferred from circumstances, particularly the unexplained disappearance of those whom it was alleged he had murdered, and his possession of the boat and equipment which they owned and from which they had disappeared while on a voyage with the accused. The majority of the Court held that the trial judge in that case had made no error by directing the jury that they could more safely draw the inferences which the prosecution alleged should be drawn "when the accused elects not to give evidence of relevant facts which can be easily perceived to be in his knowledge" But as Mason CJ, Deane and Dawson JJ pointed out in Weissensteiner :
"Not every case calls for explanation or contradiction in the form of evidence from the accused. There may be no facts peculiarly within the accused's knowledge. Even if there are facts peculiarly within the accused's knowledge the deficiencies in the prosecution case may be sufficient to account for the accused remaining silent and relying upon the burden of proof cast upon the prosecution. Much depends upon the circumstances of the particular case and a jury should not be invited to take into account the failure of the accused to give evidence unless that failure is clearly capable of assisting them in the evaluation of the evidence before them."
And as the other members of the majority in Weissensteiner (Brennan and Toohey JJ) said :
"The facts from which an inference of guilt may be drawn are correctly identified [in the charge to the jury] as facts which the prosecution is able to prove. The use to which the appellant's failure to give evidence may be put is correctly restricted to the strengthening of an inference of guilt from the facts proved. And the jury is told not to use the appellant's failure to give evidence unless relevant facts 'can be easily perceived to be in his knowledge'. This additional requirement, which follows a decision of the Court of Criminal Appeal of Queensland in Reg v Whinfield, ensures that the drawing of an inference of guilt will not be assisted by an accused's failure to give evidence unless it is reasonable to expect some denial, explanation or answer by the accused to the prima facie case made against him."
42The second inaccuracy in the appellant's submissions on this ground is that the trial judge did not give the jury a direction on the appellant's failure to give evidence. It was a comment that purported to repeat a Crown submission relating to the failure to provide an explanation.
43According to the terms of s 20 of the Evidence Act, a trial judge may comment on the failure of an accused to give evidence, provided that the comment does not suggest that the accused did not give evidence because he/she was, or believed him/her self to be, guilty of the offence. The appellant does not submit that the trial judge fell foul of that provision.
44It is appropriate at this point to review what followed RPS in the High Court.
45The majority in Azzopardi v The Queen [2001] HCA 25 ; 205 CLR 50 said :-
[52] As will later appear, there may be cases where the failure of an accused to offer an explanation by reference to some matter peculiarly within his or her knowledge will permit comment to be made as to that failure. However, as with all judicial comments on the facts in a jury trial, it will often be better (and safer) for the judge to leave the assessment of the facts to the determination of the jury in the light of the submissions of the parties.
[64] There may be cases involving circumstances such that the reasoning in Weissensteiner will justify some comment. However, that will be so only if there is a basis for concluding that, if there are additional facts which would explain or contradict the inference which the prosecution seeks to have the jury draw, and they are facts which (if they exist) would be peculiarly within the knowledge of the accused, that a comment on the accused's failure to provide evidence of those facts may be made. The facts which it is suggested could have been, but were not, revealed by evidence from the accused must be additional to those already given in evidence by the witnesses who were called. The fact that the accused could have contradicted evidence already given will not suffice. Mere contradiction would not be evidence of any additional fact. In an accusatorial trial, an accused is not required to explain or contradict matters which are already the subject of evidence at trial. These matters must be assessed by the jury against the requisite standard of proof, without regard to the fact that the accused did not give evidence.
[65] In RPS, McHugh J expressed the view that, if the circumstances of a case are such that some comment is permissible, the preferable course is for comment to be made in terms of a failure to offer an explanation, rather than a failure to give evidence. That was the approach that Gaudron J and his Honour endorsed in Weissensteiner, saying :
"it is the failure to provide an 'explanation or answer ... as might be expected if the truth were consistent with innocence' ... which is of evidentiary significance and not the failure to give evidence as such. In many cases, an explanation can be offered without the giving of evidence ... Accordingly, directions should be given in terms of the unexplained facts, rather than in terms of the failure to give evidence or to meet the prosecution case ... or the failure to answer questions from investigating police." (footnotes omitted)
[66] In Weissensteiner, Gaudron and McHugh JJ were in dissent. Subject to one important qualification, however, the approach taken by their Honours in that case is one that conforms to s 20(2) of the Evidence Act. More to the point, to refer to the failure of an accused to give evidence, rather than his or her failure to offer an explanation is to risk contravention of the prohibition in s 20(2) against suggesting that the accused failed to give evidence because he or she was guilty or believed himself or herself to be so.
[67] The qualification to which reference has just been made is this: as already explained, a judge may comment on evidence, not give directions with respect to the evidence. If the circumstances are such as to permit a comment with respect to the failure to offer an explanation, it should be made plain that it is a comment which the jury are free to disregard. If made, it should be placed in its proper context. That requires identifying the facts which are said to call for an explanation and giving adequate directions to the jury about the onus of proof, the absence of any obligation on the accused to give evidence, and the fact that the accused does not give evidence is not an admission, does not fill gaps in the prosecution's proofs and is not to be used as a make-weight. And the comment should not go beyond that made in Weissensteiner, as adapted to refer to the failure to offer an explanation rather than the failure to give evidence. (italics not in original)
See also Dyers v R [2002] HCA 45, per McHugh J at [24].
46Applying these authorities to the circumstances of the instant case, I am of the view that there is no validity in the appellant's argument on this ground for the following reasons :-
(a)The additional fact which would contradict the inference which the prosecution sought to have the jury draw, was a fact which was peculiarly within the knowledge of the appellant, namely, the time and the occasion prior to 12 May when he went to the victim's unit and was permitted entry.
(b)The trial judge's comment was made in terms of a failure to offer an explanation, rather than a failure to give evidence.
(c)The trial judge's comment made clear to the jury that it was a matter for them what weight they placed upon that feature of the case and the comment was made in the context of the fact which called for an explanation, that is, the presence of the appellant's prints inside the unit.
(d)The trial judge gave adequate directions to the jury about the onus of proof, the absence of any obligation on the appellant to give evidence, and the fact that the appellant's failure to give evidence was not an admission and did not fill gaps in the prosecution case. To the extent that the directions did not go further and instruct the jury against use of the appellant's silence as a make-weight, this Court has held that prescriptive words are not required and that the sufficiency of the direction is to be assessed in the circumstances of each case : R v Wilson [2005] NSWCCA 20.
(e)The trial judge also directed the jury in accordance with R v OGD (1997) 45 NSWLR 744, that there may be reasons unknown to the jury why the appellant refrained from giving evidence. This direction enhanced the Azzopardi direction.
47I am not persuaded that there has been any misdirection. I would reject Ground 1 of the appeal.
48The order I propose is :-
(1)Appeal against conviction dismissed.
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Decision last updated: 09 May 2012