1 Leigh Wilson was intercepted at a "booze bus" while driving. He took a breath test. The reading was 0.147%. He was later convicted in the Magistrates' Court of an offence against s 49(1)(f) of the Road Safety Act 1986. He appealed to the County Court. He relied on s 49(4) of the Act which provides that it is a defence for the person charged to prove that the breath analysing instrument used was not in proper working order or not properly operated.[1] The onus of proof is on the accused under s 49(4). Mr Wilson raised two claims of fact in this regard. First, he said that he had long suffered from gastric reflux disease, and that this condition had caused him to burp at the time of taking the breath test, distorting the result.[2] Second, he claimed that he had not drunk nearly enough alcohol to warrant the high reading. He gave sworn evidence himself on those matters, and called certain corroborative and expert evidence. If he was to have any prospect of succeeding in his defence it was essential (albeit not in itself sufficient) that his evidence as to his drinking be accepted. So his own credibility was vital.
2 In giving judgment, the learned County Court judge said, among other things, that he was not convinced that Mr Wilson was being truthful in his evidence before the Court as to how much he had drunk. He announced that the appeal against conviction would be dismissed. In the course of pre-sentence discussions, his Honour made certain remarks that now form the sole remaining basis of Mr Wilson's complaint to this Court. His Honour indicated that he had taken into account in assessing Mr Wilson's credibility that, after being notified of the high reading and after being given the usual caution by the police, Mr Wilson, on being asked whether he had any comment to make, simply said "No comment", and did not mention having burped while taking the test. Mr Wilson claims that this should not have been taken into account against him, because it represented an exercise by him of his "right to silence". All the more so because he had been given the usual caution.
3 Mr Wilson's argument is simple. He says that silence in the face of questioning by the police or similar authorities cannot be used against the accused in a criminal proceeding in any circumstances or for any purpose. He cites Petty v The Queen[3].
4 Mr Wilson has applied to this Court pursuant to Order 56 of the Supreme Court Rules for an order in the nature of certiorari to quash the decision of the County Court on the ground of "error of law on the face of the record". In the originating motion it was claimed that the alleged error in question also amounted to "jurisdictional error",[4] but at the hearing Mr Wilson's counsel expressly abandoned that claim. Ultimately, all of the other grounds set out in the originating motion were dropped.
5 The second defendant, a police officer who was the original informant ("the informant"), says that the application should be refused for one or more of four specified reasons.
6 First, he contends that because of the way in which Mr Wilson presented his defence, the County Court judge was not in error in using Mr Wilson's "no comment" response against him in the particular way that he did. In this regard the informant also says that the "right to silence" principles may not apply in relation to a summary proceeding in the same way as they do in relation to a trial before a jury. A further, related question arises as to whether it makes any difference that the onus of proof was on Mr Wilson in relation to the defence under s 49(4) of the Act.
7 Second, the informant submits that the alleged error of law on the part of the learned County Court judge is beyond review by this Court because it does not appear "on the face of the record", in that the remarks upon which Mr Wilson relies were made in the course of pre-sentence discussions rather than in the reasons initially given by the judge for dismissing the appeal on conviction.
8 Third, the informant submits that the error, if any, was not of a "fundamental" nature, and that it is beyond review for that additional reason.
9 Fourth, the informant argues that his Honour's decision was separately supported by reasons independent of the alleged error, and that relief should therefore be refused in any event.
10 The issues I must decide can be identified accordingly.
Was it an error to use Mr Wilson's silence to the police against him?
11 The informant says that there are exceptions to the principle that an accused's silence before persons in authority should not be used against the accused at the trial. For example, he says, if the accused alleges that the police investigation was inadequate in particular respects,[5] it may be proper for the prosecution to lead evidence that the police put all the reasonable possibilities to the accused and that he or she remained silent.[6] The informant acknowledges that silence in circumstances of that kind could at best be used only to counter the allegation of inadequate investigation and that it could not be used to infer consciousness of guilt or to suggest recent invention. The informant also refers to cases where selective refusals to answer police questions have been used against an accused: eg Woon v R[7]. The informant accepts that the present case is not within either of the exceptional categories just mentioned, but he contends (I think) that the very existence of those categories indicates that there may be others. And he says that there is indeed another exceptional category into which this case falls.
12 The informant contends that Mr Wilson's silence in the hands of the police was properly taken into account because Mr Wilson himself raised the issue of his own credit as part of his own case and because, he contends, the judge used Mr Wilson's silence for a certain limited purpose only.
13 The informant says that Mr Wilson raised the issue of his own credit by claiming in the witness box that his conduct had been consistent throughout and that he had had a particular state of mind while in the hands of the police. The informant refers to Mr Wilson's claims that he had been aware that his reflux condition could distort a breathalyser reading; that, for that reason, he was in the habit of counting his drinks; that he had in fact done so on the occasion in question; and that he had therefore been surprised when the police told him of his reading.
14 The informant accepts that it would not have been proper to treat Mr Wilson's pre-trial silence as an indication of consciousness of guilt or of recent invention. But he says that the County Court judge did neither. Rather, he says, the judge looked at it as part of the entirety of Mr Wilson's conduct in the hands of the police, and did so merely for the purpose of assessing Mr Wilson's credibility as a witness. He submits that the judge's adverse findings about Mr Wilson's credibility related only to the issue of how much he had had to drink; not to the issue whether he burped or not at the time of the test. He says that while the judge found against Mr Wilson on the former issue, he did not do so on the latter. He says that using Mr Wilson's silence for this limited purpose was permissible in the circumstances.
15 For the reasons which follow, I do not accept the informant's argument.
16 In the first place, there is no hint or suggestion in the judge's reasons that he himself recognised an exception to the Petty principles of the kind suggested by the informant. His Honour made no mention of Mr Wilson seeking to bolster his own credit. Rather, I think that his Honour simply took the view that if Mr Wilson had burped into the machine he would have said so to the police at the time, and would probably have asked for another test, despite the caution. Such a view has a certain attraction as a matter of ordinary human experience[8]. His Honour's remarks show that his view was also influenced by observing Mr Wilson in the witness box.[9]
17 In any event, there is no authority to support the proposition that the usual incidents of the right to silence do not apply where the accused raises the issue of his own credit in his own case (whether in relation to the alleged consistency of the accused's prior conduct or in relation to the accused's possession of a particular state of mind while in the hands of the police or otherwise). Mr Ryan SC, who appeared for the informant, was unable to point to any authority for the proposition, even by way of analogy. Nor have my own researches revealed any such authority. To the contrary, the leading authorities on the right to silence tend to deny the existence of any exception for cases where the accused raises his or her own credibility. Further, they indicate that there is no room to make a distinction between using the accused's silence to show consciousness of guilt or recent invention on the one hand, and using it to impugn the accused's credibility in the witness box on the other hand.
18 Indeed it is a central feature of the relevant principles that the exercise of the right to silence before the police or like officials must not be used to impugn the accused's credibility in any circumstances or in any way. In Glennon v The Queen[10], the accused gave sworn evidence denying an allegation of a sexual offence against a child. He swore, in addition, that a third person had been in the relevant room at the time. That person was called and testified that she had indeed been in the room at the time and that nothing untoward had happened. However, before the trial the accused had declined to answer police questions about the alleged incident and had not mentioned the third person to the police. In his charge, the trial judge said to the jury that they were not to use the accused's exercise of his right to silence adversely to him. But his Honour went on to say that in testing the "veracity" of the accused's defence the jury could take into account that it was not revealed to the police. When the matter reached the High Court it was common ground that the trial judge's direction had violated the principles laid down in Petty. The outstanding question was whether there had been a "substantial miscarriage of justice" for the purposes of s.568 of the Crimes Act 1958. The High Court answered this question in the affirmative. Mason CJ, Brennan and Toohey JJ noted that "the applicant's credibility was of central importance to his defence"[11]. Deane and Gaudron JJ said: