His Honour contravened s20(2) of the Evidence Act in the directions he gave the jury concerning the appellant's failure to give evidence.
41 In a break in the summing-up there was some discussion between the trial judge and counsel, in the absence of the jury, about whether the trial judge should give a "Jones v Dunkel" direction about the failure of the appellant to give evidence. In this discussion brief reference was made to s20 of the Evidence Act and to the decision of the High Court in RPS v The Queen which is reported at 74 ALJR 449. His Honour concluded that he would give the jury directions to the effect that, the appellant not having given evidence, the jury might more readily accept prosecution evidence in relation to matters of which the appellant would have had first hand knowledge and his Honour listed as such matters "his travel movements, his drug taking, his rest times and his motivation to lie".
42 After he had resumed summing-up, the trial judge told the jury that the appellant had not given evidence at the trial; that the appellant had been interviewed by police on the day of the collision and that evidence of the interview was before the jury; and that it had been submitted on behalf of the appellant that in the interview the appellant had told the police all he could remember about the collision. The trial judge then told the jury that, because the appellant had not given evidence, there were a number of directions he was required to give the jury.
43 The trial judge began by telling the jury that an accused person may give evidence in a criminal trial but is not obliged to do so and is entitled to remain silent. On the hearing of this appeal no complaint was made about any of those directions. However, the trial judge proceeded to say to the jury:-
"You may however, as a matter of common sense and in accordance with the law, you may take the view that where a fact is disputed between the Crown and the Accused and the Accused is in a particular position to respond or deny any particular assertion by the Crown, then you may as a matter of law more readily accept that evidence of the Crown as being truthful in the absence of the Accused having elected to respond to matters about which you would expect him to have first hand knowledge.
Now those matters in this particular trial, not exhaustively but probably, include the following. Indeed I tell you as a matter of law they do include the following. His movements on the day and the night before the event and the morning thereof. The rest periods he took, if any, during that time. The question of whether he took any drugs and, if so, what and how much.
Finally, but possibly not exhaustively, any reason he might advance for having told the police a number of untruths.
Now they are matters about which you would expect the Accused to have first hand knowledge. The Crown, of course, have led evidence about all of those matters and I tell you as a matter of law that you would more readily, if you wish, accept the Crown evidence, it having not been the subject of any denial by the Accused, at least in regards to those matters to which I have just alluded".
44 His Honour then referred to the log book entries and some answers given by the appellant in the interview which I have summarised earlier in this judgment and his Honour compared what the appellant had asserted in the log book entries and in his answers in the interview with the formal admissions the appellant had made at the trial about the mobile telephone calls he had placed and evidence of calculations of distances between various places in Victoria and New South Wales through which the appellant had passed on 29 or 30 May.
45 His Honour told the jury that they could conclude that the appellant had been telling lies in the entries he had made in the log book and in some of the answers he had given when he was interviewed. His Honour then gave the jury directions about the circumstances in which the telling of lies by an accused person may be used in aid of other evidence in the Crown case as pointing to the guilt of the accused.
46 Towards the end of the summing-up the trial judge told the jury:-
"Finally may I say this because it has loomed fairly importantly in this case and certainly has loomed with some importance in what I have said to you concerning what you might perceive to be lies by the Accused. You cannot use those lies as an admission of guilt. You can use those lies if you find they were deliberate lies and related to a material issue and told to avoid detection in relation to this matter. If you find all those things you can use those lies to more readily accept the contrary evidence led by the Crown as being the more likely scenario. Now similarly the Accused having elected not to give evidence about matters which you may feel were within his personal knowledge. Certainly about his movements the day before, certainly about his drug taking, certainly about the fibs he told the police. You may use that information if you take it to be a reluctance to respond to those matters. You may take that factor as being a circumstance which leads you to more readily accept the evidence given by the Crown witnesses in relation to those issues. That is perhaps particularly Judith Pearl as to the effect of those substances upon him. And bear in mind this, that to various witnesses including Judith Pearl, was put various scenarios. I suggest to you that if he took such and such on the Saturday morning or such and such on Sunday afternoon, or whatever, and it was in relation to some such scenarios that Judith Pearl was persuaded to modify her view slightly in relation to some matters. But those matters put to her as scenarios were never the subject of any evidence, so that they remain exactly what they were then, submissions by counsel. They are not proven facts and they cannot be regarded by you as facts proved and contrary to the facts proved by the Crown. They are not facts upon which the Accused can rely because he has not attempted to prove them".
47 It was submitted by counsel for the appellant that in giving the directions which I have quoted or summarised the trial judge had contravened s20(2) of the Evidence Act, as interpreted by the High Court in RPS v The Queen. It was submitted that a number of the elements which Gaudron ACJ, Gummow, Kirby and Hayne JJ had identified in par17 of their joint judgment as appearing in the summing-up which the trial judge had given in RPS and which they had criticised in par22 of their joint judgment were also to be found in the passages in the summing-up given in the present case which I have quoted or referred to.
48 It was further submitted by counsel for the appellant that the trial judge had erred in not precisely identifying the matters in relation to which the jury might more readily accept the prosecution evidence, in the absence of evidence from the appellant. It was true that the trial judge had told the jury that the disputed facts "included" (i) the appellant's movements on 29 May and 30 May (ii) the rest periods the appellant took on 29 May and 30 May and (iii) whether the appellant had taken any drugs and, if so, what drugs and how much and (iv) any reason the appellant might have had for telling lies. However, the trial judge more than once told the jury that this list given by him of matters on which the jury might more readily accept the prosecution evidence might not be exhaustive. It was submitted that the directions given by the trial judge would have permitted the jury to reason that they might more readily accept the prosecution evidence on some other matter of fact, because it appeared to the jury that it was a matter of which the appellant would have had first hand knowledge.
49 In his written submissions and on the hearing of the appeal counsel for the Crown conceded that the directions given by the trial judge about the failure of the appellant to give evidence were not in accordance with the principles laid down by the majority of the High Court in RPS, particularly insofar as the directions indicated that the jury could, in the light of the appellant's failure to give evidence on certain matters, more readily accept the prosecution evidence on those matters and that, therefore, the ground of appeal against conviction had been established.
50 No attempt was made by the Crown to submit that the present case was one of the rare cases referred to in par(27) of the joint judgment of the majority in RPS in which evidence contradicting an apparently damming inference to be drawn from proven facts could come only from the accused. It is apparent from the general tenor of the judgment of the majority in RPS and the terms of par(27) itself, that such cases, if they exist at all, will be rare.
51 In my opinion, having regard particularly to what was said by the majority of the High Court in RPS and to the Crown's concession, this Court should hold that the ground of appeal has been established.
52 Although the Crown conceded that the trial judge in his summing-up had contravened s20(2) of the Evidence Act and hence the ground of appeal relied on by the appellant had been established, the Crown nevertheless submitted that the appeal should be dismissed pursuant to the proviso to s6(1) of the Criminal Appeal Act, that is on the ground that no substantial miscarriage of justice had actually occurred.
53 It was submitted by the Crown that the appellant had not, by reason of the trial judge's error, lost a chance which was fairly open to him of being acquitted (see Mraz v The Queen (1955) 93 CLR 493 at 514 per Fullagar J). If there had been no blemish in the trial, an appropriately instructed jury acting reasonably on the evidence properly before them and applying the correct onus and standard of proof, would inevitably have convicted the appellant (see Wilde v The Queen (1987-1988) 164 CLR 365 at 372 per Brennan, Dawson and Toohey JJ.)
54 These submissions on behalf of the Crown were developed as follows. As a result of the admissions made by the appellant at the trial, the only element of each offence charged which was in issue was whether the appellant had been driving in a dangerous manner. Whether the appellant had been driving in a dangerous manner was to be determined by the jury by applying an objective test to the actual driving behaviour of the appellant and the Crown was not required to prove any particular state of mind on the part of the appellant. R v Coventry (1938) 59 CLR 633 at 638; R v Hain (1966) 85 W.N. (Pt1)(NSW) 7 at 10-11. Quite apart from any fatigue from which the appellant might have been suffering (from driving too far or from having had insufficient rest) or the effects of any drugs he might have taken, the bare facts of the collision, that in broad daylight on a fine day on a straight stretch of a highway the appellant drove his vehicle at a speed of 100 kilometres per hour, or only slightly less, into the back of another vehicle, which was stationary or almost stationary, were such that an appropriately instructed jury, acting reasonably on the evidence and applying the correct onus and standard of proof, would inevitably have found that the appellant had been driving in a dangerous manner. The appellant bore the onus of establishing a defence under s52A(8) and an appropriately instructed jury acting reasonably on the evidence properly before them, including the evidence of Detective Ryan and the evidence of Mr Casey, would inevitably have held that the appellant had failed to discharge the onus. Accordingly, a jury acting in accordance with the conditions stated in Wilde would inevitably have convicted the appellant.
55 Counsel for the appellant did not really contest that the appellant had not, by reason of the trial judge's error, lost a chance of acquittal which would otherwise have been fairly open to him or that a jury acting in accordance with the conditions stated in Wilde would, even if there had been no error, still, inevitably, have convicted the appellant. However, counsel for the appellant submitted that the proviso to s6(1) could not be applied in favour of the Crown, unless a further condition for the application of the proviso which was stated in Wilde was satisfied, that the error of the trial judge should not have been fundamental, and he submitted that the error which had occurred in the present case had been fundamental, with the consequence that the proviso could not be applied. It was submitted that an accused person's right to silence is so fundamental that a trial in which that right is infringed departs from the essential requirements of a criminal trial. It was pointed out by counsel that in RPS the part of the judgment of the majority commencing at par(22) is headed "Directions contrary to fundamental features of criminal trials" and in par(22) their Honours said that there were "fundamental" reasons why none of the five elements which had been identified in par(18) should have appeared in the trial judge's summing-up. It was further submitted that, although the trial judge in his erroneous directions had listed some matters to which he told the jury those directions could be applied, he had also told the jury that the list he had provided might not be exhaustive, thereby permitting the jury to apply the erroneous directions to other matters. The erroneous directions about more readily accepting the evidence of the prosecution had led to the further directions about lies told in consciousness of guilt. It was pointed out that evidence relevant to how far the appellant had driven, what rest periods he had taken and what drugs he had taken had occupied quite a large part of the trial and his Honour's directions about the failure of the appellant to give evidence and his further directions about lies had taken up several pages of the transcript of his Honour's summing-up.
56 It is convenient, at this stage, to quote a passage in the joint judgment of Brennan J, Dawson J and Toohey J in Wilde at pp372-3, which was frequently referred to on the hearing of the appeal. Their Honours said:-
"However, it was submitted that the question whether a reasonable jury would inevitably have convicted does not arise where the error in the conduct of the trial is fundamental. In such a case, it was submitted, it does not matter what the strength of the prosecution case or the weakness of the defence case was. Reliance was placed upon what was said by Gibbs J in Quartermaine v The Queen (1980) 143 CLR 595 at 600-601).
'Ordinarily, when there has been a misdirection of law, the proviso to s689 [ Criminal Code (W.A)] will be applied if the Crown establishes that if there had been no misdirection the jury would (or must) have come to the same conclusion. However, Wickham J, who delivered the judgment of the Court of Criminal Appeal in the present case, recognised that even if this were established 'there might still be a substantial miscarriage of justice if the trial was so irregular that no proper trial had taken place, in that "there had been a serious departure from the essential requirements of the law'". The Court of Criminal Appeal was right in taking that view of the law…"
This view is undoubtedly correct, for the proviso was not intended to provide, in effect, a retrial before the Court of Criminal Appeal when the proceedings before the primary court have so far miscarried as hardly to be a trial at all. It is one thing to apply the proviso to prevent the administration of the criminal law from being 'plunged into outworn technicality' (the phrase of Barwick CJ in Driscoll v The Queen (1977) 137 CLR 517); it is another to uphold a conviction after a proceeding which is fundamentally flawed, merely because the appeal court is of the opinion that on a proper trial the appellant would inevitably have been convicted. The proviso has no application where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings. If that has occurred, then it can be said, without considering the effect of the irregularity upon the jury's verdict, that the accused has not had a proper trial and that there has been a substantial miscarriage of justice. Errors of that kind may be so radical or fundamental that by their very nature they exclude the application of the proviso: ….
There is no rigid formula to determine what constitutes such a radical or fundamental error. It may go either to the form of the trial or the manner in which it was conducted. There are those cases which identify irregularities which are sufficient to vitiate a trial and afford a basis for a writ of venire de novo. They are concerned more with the form of the trial but even in that area they provide no real touchstone for determining when an irregularity is so serious as to cause a mistrial:…. But the wording of the proviso is quite general and it is clear that it may be applied notwithstanding a misdirection concerning the law or the wrongful admission of evidence. In the end no mechanical approach can be adopted and each case must be determined upon its own circumstances".
57 In Wilde evidence had been wrongly admitted on the counts on which Wilde had been convicted. In their joint judgment Brennan, Dawson and Toohey JJ observed at p 374 that it was the significance of the evidence wrongly admitted, in the context of the trial, which must determine whether the error was of a fundamental kind. Their Honours carried out an examination of the significance at the trial of this wrongly admitted evidence. Their Honours concluded at p374:-
"When viewed in context, it does not appear that the evidence wrongly admitted in relation to the counts upon which the applicant was convicted can have carried any significant additional weight having regard to the other evidence. This is, of course, to take into account the strength of the prosecution case upon those counts and the weakness of the defence, but it is to do so for the purpose of determining the gravity and significance of the error and not for the purpose of determining whether the jury would inevitably have convicted notwithstanding the error".