Petty v The Queen

The account given by Maiden in his record of interview was to the effect that he and Petty agreed to murder Mark White and he (Maiden) seriously assaulted Mark White, but Petty later killed him while he (Maiden) was absent. According to James Crawley, Maiden gave an account to similar effect in a conversation at Yass in early January 1988. A quite different account was given by Maiden at the trial. He said that the record of interview was a false account made with a view to causing trouble for Petty. What had happened, he said, was that he had struggled with Mark White, but Mark White was the aggressor and he (Maiden) was doing no more than defending himself from attack. He said he had no intention of causing injury. The further details of that account corresponded with the account given by Petty. On Petty's account, Maiden, whilst struggling with Mark White, called for his (Petty's) assistance. He freed the deceased from on top of Maiden and then noticed that he did not move. Maiden and Petty both admitted that they buried the deceased and disposed of his clothes. They explained their actions in this regard on the basis that, had they reported the matter to the police, they would have been arrested as gaol escapees.

The post-mortem evidence did not exclude the possibility that Mark White died accidentally in a struggle such as that described by Maiden at the trial. Had that been accepted by the jury as a reasonable possibility, it must have resulted in the acquittal of both applicants, for, as already indicated, the case against Petty was simply that he was accessory to murder committed by Maiden. The present applications concern evidence bearing on the question of accidental death and given by James Crawley in the course of re-examination. It is argued that that evidence was wrongly admitted and that the direction given by reference to it was a misdirection.

The evidence of James Crawley was that, in a conversation at Yass in January 1988, Maiden admitted that he helped Petty murder Mark White. James Crawley first gave that evidence in committal proceedings and was then cross-examined on the basis that the conversation did not occur. At the trial he was cross-examined on a different basis, it being put to him that there had been a conversation, although at a different place, and that in that conversation Maiden had given an account of accidental death. Crawley denied that there had ever been any conversation to that effect. In re-examination he stated that he had not been cross-examined in the committal proceedings along the lines pursued at the trial. That re-examination was objected to on the ground that it destroyed or diminished the worth of an accused person's right to silence. The trial judge ruled that it was admissible, saying:

My decision to allow this re-examination does not depend upon the mere fact that this explanation was not offered at the committal. What it does depend upon is the fact that the accused Maiden offered this explanation only on the seventh day of the trial, at a stage when it cannot now be investigated fully. The issue raised by that evidence was dealt with in summing up on the basis that, although no inference or conclusion of guilt could be drawn from the failure to advance an explanation of accidental death when the record of interview was made, or during cross-examination of Crawley in the committal proceedings, or "in time for the Crown to investigate it fully", it could be taken into account "in judging the weight to be given to [the] explanation now put forward so late".

The applicants appealed to the Court of Criminal Appeal of New South Wales. That Court ruled that the evidence given by Crawley in re-examination was admissible, not as evidence of guilt, but as evidence going to the weight of an account given for the first time at trial. But, it was held, the summing up was erroneous in that the reference to the Crown's inability to fully investigate an "explanation put forward so late" was likely to convey to the jury that Maiden had failed to do something which he should have done. Nevertheless, the appeals were dismissed on the basis that, in terms of the proviso to s. 6(1) of the Criminal Appeal Act 1912 N.S.W., there was no substantial miscarriage of justice.

As a matter of ordinary experience, the failure to advance an innocent explanation when an opportunity arises may, of itself, support an inference that no such explanation is available. So too, as a matter of ordinary experience, it may support an inference that a subsequent explanation is false. And, of course, an inference to the same effect may be drawn if different explanations are given on different occasions.

The fact that Maiden gave a different account in his record of interview and, possibly, also to James Crawley has no present relevance even though that might also support an inference that the account given at the trial was false. The verdicts of guilty against both applicants show that the jury did not act on material parts of those accounts and, thus, it may be that they had no bearing at all on the weight given to the claim of accidental death. But, in any event and although accompanied by the observation that, instead of maintaining silence, Maiden "ha[d] chosen [to] offer at least one version of what happened when he made his record of interview", the case was left to the jury on the basis that the failure to advance a claim of accidental death before trial could, of itself, support an inference that the claim was false.

An inference that an explanation is false merely because it was not advanced at some earlier time is different from an inference drawn from circumstances, such as the possession of recently stolen goods, which so obviously suggest some act or omission on the part of the person concerned that an inference to that effect will almost certainly be drawn unless some other explanation is forthcoming [51] . So too, it is different from an inference of consciousness of guilt drawn from conduct or demeanour (which, of course, may include silence) when taken in combination with other evidence [52] . The account which was given by Maiden in his record of interview (if found to be a false account), and which was maintained by his silence until the trial, is capable of supporting an inference of consciousness of guilt. However, the present case is concerned with a different inference which bears only on the truth of an explanation and the sole foundation for which is the failure to advance that explanation at some earlier time. That is because the matter was left to the jury on the basis that it might be inferred that the account given by Maiden at the trial was false or, which is the same thing, that that account might be given less weight merely because it was not raised earlier.

1. See, as to the inference drawn from possession of recently stolen goods, Trainer v. The King (1906), 4 C.L.R. 126, at p. 132, per Griffith C.J.; Bruce v. The Queen (1987), 61 A.L.J.R. 603; 74 A.L.R. 219. See also Gilson v. The Queen (1991), 172 C.L.R. 353. 2. See, as to an inference of consciousness of guilt, R. v. Grills (1910), 11 C.L.R. 400; Woon v. The Queen (1964), 109 C.L.R. 529.

Whether, as a matter of ordinary experience, the mere failure to advance an explanation will support an inference that there is no innocent explanation and, consequently, that a later explanation is false depends very much on the precise circumstances involved. As a matter of ordinary experience, an inference of that kind will not readily be drawn in circumstances involving a clear indication that there is no obligation to explain, as, for example, when a police caution is administered. Translated into a forensic context, elementary logic and fairness require that, if a police caution has been administered, no inference should be drawn merely from the failure to answer questions or to volunteer information. See Reg. v. Ireland [53] , where it was said that a failure to answer questions after a caution "was not relevant: it would not be probative of any relevant fact or circumstance". See also Paterson v. Martin [54] , a case where, although no caution had been administered, it was said [55] that the circumstances of the refusal to answer did "not afford any ground for an inference" as there propounded.

1. (1970) 126 C.L.R. 321, at p. 331. 2. (1966) 116 C.L.R. 506. 3. ibid., at p. 511.

It was accepted in R. v. Littleboy [56] , that failure to raise an alibi defence before trial may be the subject of "an observation with regard to the force of [the] alibi, and [to the effect] that it is unfortunate that the defence was not set up at an earlier date so as to afford the opportunity of its being tested" [57] .

1. [1934] 2 K.B. 408, at p. 413. 2. See also Reg. v. Twist, [1954] V.L.R. 121, at pp. 130-131; Harris v. The Queen, [1988] Tas. R. 31, at p. 45.

The first part of the direction approved in Littleboy asserts and accepts that the mere failure to raise an alibi at some earlier time has evidentiary significance bearing on its weight. The other part is directed to explaining, albeit somewhat cryptically, that the absence of answering evidence does not lend weight to an alibi which is raised for the first time at trial.

If it is sound in law to attribute evidentiary significance to the mere failure to raise an alibi prior to trial, then (assuming that the circumstances permit of an inference being drawn) the same evidentiary significance should attach to the mere failure to raise an explanation which is later advanced at the trial [58] . And it has been so treated in relation to a claim of accidental death [59] , an explanation of possession of stolen goods [60] and an explanation of presence at the scene of a crime [61] .

1. See Reg. v. Bouquet, [1962] S.R. (N.S.W.) 563, at p. 570, per Sugerman J., where it was said that a failure of that kind was relevant to the weight to be given to any "positive matter of explanation or defence raised for the first time at the trial". 2. Reg. v. Sadaraka, [1981] 2 N.S.W.L.R. 459; and Reg. v. Foster, [1955] N.Z.L.R. 1194, a claim, in answer to a charge of rape, that the complainant consented: Reg. v. Fraser, [1989] 1 Qd R. 182. 3. Reg. v. Bruce, [1988] V.R. 579. 4. Reg. v. McNamara, [1987] V.R. 855.

The cases concerned with the failure to raise an alibi or to advance an explanation before trial have asserted, with careful attention to detail, that, although that failure may attract comment to the effect that it can be taken into account in assessing the weight to be given to that alibi or explanation, silence (which, of course, includes failure to offer an explanation at an earlier time) is not something from which the jury can infer guilt [62] .

1. See, e.g., Littleboy [1934] 2 KB., at p. 413; Twist [1954] VL.R., at pp. 124, 131; Sadaraka [1981] 2 NS.W.L.R., at p. 462; Bouquet [1962] SR. (N.S.W.), at pp. 571, 574; Foster [1955] NZ.L.R., at pp. 1200, 1201.

The distinction which the cases assert between silence as, on the one hand, a matter bearing on the weight to be given to an explanation and as, on the other hand, a matter not founding an inference of guilt will not withstand scrutiny. A direction that the failure to raise an explanation before trial may be taken into account in assessing its weight really amounts to a direction that an inference of guilt may be drawn from that failure, the steps involved being those identified by Professor Cross in "The Evidence Report: Sense or Nonsense", [63] , namely: "(i) the defence was belated; (ii) the jury may (not must) consider it entirely false on that account; (iii) in that event, the prosecutor's case being in effect unanswered, the jury may (not must) infer that the accused is guilty." See also Reg. v. Gilbert [64] (a case in which the Court of Appeal of the United Kingdom refused to follow the earlier decision of Reg. v. Ryan [65] , in which the distinction between the weight to be given to an explanation and an inference of guilt was accepted) where it was said [66] that "it may not be a misdirection to say simply "This defence was first put forward at this trial" but if more is said, it may give rise to the inference that a jury is being invited to disregard the defence put forward because the accused exercised his right of silence".

1. [1973] Criminal Law Review 329, at p. 333. 2. (1977) 66 Cr. App. R. 237. 3. (1964) 50 Cr. App. R. 144. 4. (1977) 66 Cr. App. R., at pp. 244-245.

Although ordinary experience allows that an inference may be drawn to the effect that an explanation is false simply because it was not given when an earlier opportunity arose, that reasoning process has no place in a criminal trial. It is fundamental to our system of criminal justice that it is for the prosecution to establish guilt beyond reasonable doubt. The corollary of that - and it is equally fundamental - is that, insanity and statutory exceptions apart, it is never for an accused person to prove his innocence [67] . Therein lies an important aspect of the right to silence, which right also encompasses the privilege against incrimination.

1. See Woolmington v. Director of Public Prosecutions, [1935] A.C. 462.

To allow that an explanation might be judged false because it was not put forward before trial is, in effect, to allow that the burden of proving guilt may be more readily discharged because the accused person did not signal the precise basis of his innocence - in other words, his defence. And that is so even if the accused person bears an evidential burden, for a burden of that kind does not relieve the prosecution of the ultimate onus of establishing the elements of the offence charged beyond reasonable doubt.

A direction which allows that failure to advance a matter of defence may detract from its weight, reduces the burden on the prosecution to prove guilt beyond reasonable doubt and undermines its corollary that, insanity and statutory exceptions aside, it is never for an accused person to establish his innocence. It does so by subjecting the accused person to the risk that, if he does not signal before trial what he is under no obligation to prove in his trial, namely, the basis of his innocence, that may be used to establish his guilt. Accordingly, a direction of the type given in the present case is a misdirection. And, evidence that there was a failure to signal or raise some matter of defence before trial, which is directed only to the weight to be given to that matter of defence, is inadmissible because, given that it is for the prosecution to prove guilt and it is not for the defence to prove innocence, the evidence proves nothing.

The applications for special leave to appeal were argued by reference to the failure to signal a claim of accidental death in the cross-examination of James Crawley at the committal proceedings. I have already indicated that the account given by Maiden in his record of interview, if found to be false, is capable of supporting an inference of his consciousness of guilt. And evidence that that account was maintained by silence is, in my view, admissible as evidence which might buttress that inference. However, the direction given with respect to the failure to signal a claim of accidental death in the cross-examination of James Crawley at the committal was not put on that basis, but on the erroneous basis that that failure, by itself (i.e. whether or not it supported an inference of consciousness of guilt), was capable of supporting an inference that the account given at the trial was false. And, it follows from what has been said that that error extended to what was said in the summing up as to the failure to advance the explanation of accidental death when the record of interview was made or "in time for the Crown to investigate it fully". That is not to deny that, in an appropriate case, comment may be made to the effect that there is no evidentiary significance attaching to the failure to call evidence in answer to some matter which invites further investigation but which could not have been anticipated and which was raised for the first time at the trial. Comment to that effect is entirely sensible. However, as this case shows, not every case in which an explanation is put forward for the first time at the trial will call for a comment of that kind. In the present case the claim that an account involving accidental death had been given to James Crawley required no investigation beyond that which might properly be undertaken in re-examination. And, as one would expect, the possibility of accidental death was the subject of post-mortem investigation well before trial. There was thus no basis on which it could be suggested that, had those matters been raised at some earlier time, they might have been investigated and additional or answering evidence might then have been available.

It remains to be considered whether the error which occurred in the trial constituted a serious miscarriage of justice in the accepted sense that the applicants "may thereby have lost a chance which was fairly open to [them] of being acquitted" [68] . The context in which that question must now be answered is quite different from that which confronted the Court of Criminal Appeal, for, on that Court's understanding of the law, error occurred only in so far as the summing up was likely to convey to the jury that Maiden had failed to do something which he should have done.

1. Mraz v. The Queen (1955), 93 C.L.R. 493, at p. 514, per Fullagar J.

The central issue in the trial was whether the prosecution had proved beyond reasonable doubt that Maiden committed the act causing death with the requisite intent or recklessness. It would have failed to do that if the possibility left open by the post-mortem evidence, namely, that Mark White met his death accidentally in a struggle of the nature described by Maiden at the trial, was accepted by the jury as a reasonable possibility. The erroneous direction concerning the failure to signal the defence of accidental death bore directly on that issue. And, as earlier indicated, the effect of that error was to suggest that the jury might more readily accept that the prosecution had discharged its burden of proof of that issue because Maiden had not signalled his defence before the trial.

Although the prosecution case might be thought to be a strong one, it was not without its complications. One complication was that, in practical terms, proof of the guilt of both applicants depended on the jury not acting on material parts of the account given by Maiden in his record of interview and the account said to have been given by him to James Crawley. The reasoning process which led the jury not to act on that account might have been such as to lead it to reject inferences that might otherwise be drawn from the giving of a false account, including an inference of consciousness of guilt. In a context in which the only direct evidence against Maiden that he committed the act causing death was that contained in the account given by him at the trial (which account asserted consistently with the evidence of the post-mortem examination and consistently with the account given by Petty that death occurred accidentally), the erroneous direction may have been critical to the jury's verdict against him. Although in strict legal theory the error which occurred in the trial occurred only in the case against Maiden, the circumstances of that trial, including that the case against Petty was simply a case of accessory to murder committed by Maiden, were such that the error may have deprived both applicants of a chance of acquittal which was fairly open to them. It thus constituted a serious miscarriage of justice.

Special leave to appeal should be granted in each case. The appeals should be allowed. The decision and orders of the Court of Criminal Appeal of New South Wales should be set aside and, in lieu thereof, it should be ordered that the appeals to that Court be allowed, the convictions set aside and new trials ordered.