R v Callaghan [1993] QCA 419

Criminal law - directions to jury - trial Judge not obliged to refer to all the evidence.

Criminal law - conduct of prosecution - inappropriate use of the dignity of the office of Crown prosecutor in address to jury.

Solicitors: Messrs Witheriff Nyst for appellant

The circumstances giving rise to this appeal are set out in the joint judgment of Pincus JA. and Thomas J.

I agree with their Honours' conclusion that the appeal should be dismissed, and with their reasons in relation to grounds 4 and 5.

Their Honours' views in relation to ground 1 are highly persuasive, but I find it unnecessary to reach a firm conclusion on the legal issues which they have carefully analysed. In my opinion, the exculpatory record of interview upon which the appellant sought to rely did not meet the tests upon which he based his argument. It is sufficient to note that the collision and the appellant's apprehension occurred six hours before the interview sought to be relied on, more than enough to deny the existence of any temporal connexion between the exculpatory statements which the appellant made and the two earlier events.

REASONS FOR JUDGMENT - PINCUS J.A. AND THOMAS J.

Judgment delivered the 20th day of October, 1993

The appellant was convicted by a District Court jury of unlawful use of a motor vehicle. The motor vehicle in question was taken from a carpark at Fishermans Wharf situated on the Spit at Southport. A Crown witness, Mrs Dowdy, saw the vehicle (a brown Gemini) being driven erratically not far from the carpark. She passed the traffic by taking a left hand lane, and stopped at the next set of lights in Marine Parade. The Gemini then came up behind her and drove into the rear of her car. She observed that there was a sole occupant in the driver's seat of the vehicle. She and the other driver alighted and walked toward each other. The male person kept walking towards the sidewalk. She asked him what his problem was. He did not reply and kept walking down Nind Street. She followed him and took hold of his shirt telling him he had to talk about it. He hit her hands, asked her to let go, said he was on drugs, that he had stolen the vehicle and that he did not want to be there. After further conversation she let go of his shirt and he proceeded to sprint down Nind Street away from the scene of the accident. Other persons nearby pursued him, including a person who jumped off his bicycle and chased, a person in a yellow or orange vehicle, and the driver of another vehicle (Mr Linsay) who drove on and assisted in his apprehension. He was eventually handed over to the police by these citizens. This person was the appellant.

It is not necessary to state the evidence in detail. There is strong evidence from independent citizens that the appellant was the person who emerged from the driver's seat, that no one else was in the car, and that the person who was apprehended was the person who got out of the driver's seat.

The appellant gave evidence to quite different effect. He said that he had been drinking at Fishermans Wharf and was hitchhiking home. He was given a lift by the driver of the vehicle in question, whom he did not know. He was in the back seat and did not notice much before the accident. When the accident happened the driver ran off and disappeared. He, the appellant, got out of the back seat and approached the lady driver of the other vehicle. He claims his only response to her was "it hasn't got anything to do with me. It's not my car". He then walked around the corner to get away from her because he did not want to get involved in an argument. Other persons then apprehended him.

"The learned Trial Judge erred in disallowing cross-examination of the witness Box in relation to an audio taped interview between the witness Box and the Appellant at the Southport Watchhouse on Monday 28th September, 1992."

This refers to an exculpatory record of interview taken on video tape at the police station on the night in question about six hours after the apprehension. His account to the police was that he had been in the back seat and did not know that the car was stolen.

Apart from an initial misguided suggestion by the Crown prosecutor that he might tender this evidence in order to prove that the statements were lies, the Crown did not allege that the statement contained admissions against interest, and did not seek to tender the statements made during the interview. The learned trial Judge expressed the provisional view that its contents were "uniformly self-serving and inadmissible" but no formal ruling was required at that stage. The defence did not seek a direction that the Crown should call the evidence. The matter was first squarely raised by the defence upon application to bring the statements in the interview into evidence through crossexamination of the police. His Honour then ruled that the self-serving statements were not admissible and that they could not be introduced in that way. In short the appellant was denied the opportunity of leading evidence of self-serving statements made by him out of court. Such statements were consistent with the evidence that he eventually gave.

Mr McMillan who appeared for the appellant conceded that the interview did not contain any inculpating statements by the appellant, and disclaimed reliance upon the authorities which deal with "mixed statements" i.e. statements which contain both incriminatory and exculpatory matter. His submission was formulated in the following way:

"A previous consistent statement of an accused is admissible where the accused is confronted by the police and his answers are spontaneous, relevant and add weight to other testimony in the case, particularly where the accused gives evidence."

The submission is largely based on Tooke (1990) 90 Cr.App.R. 417; cf. (1990) Crim. L.R. 263. This is a somewhat perplexing decision of the Criminal Division of the Court of Appeal in 1989. It is based upon decisions such as Pearce (1979) 69 Cr.App.R. 365 and McCarthy (1980) 71 Cr.App.R. 142 which are inconsistent with the stream of Australian authority at least since Lopes v. Taylor (1970) 44 A.L.J.R. 412, 421. The difference between the two streams was noted in R. v. Cox (1986) 2 Qd. R. 55, 6365. A consistent approach has been taken in other Australian jurisdictions (R. v. Williamson (1972) N.S.W.R. 281, 294-296; Gardner v. Duve (1978) 19 A.L.R. 695, 703-704; R. v. Herbert [1982] FCA 147; (1982) 6 A.Crim.R. 1, 29-32; Spence v. Demasi (1988) 48 S.A.S.R. 536, 540-546). The English stream did not accept that self-serving statements, even when forming part of a mixed statement, could be regarded as evidence of the proof of the statement. They were received "to show the attitude of the accused at the time when he made it" (Pearce above at 369). Since then The House of Lords has brought the position substantially in line with the Australian approach (R. v. Sharp [1988] 86 Cr.App.R. 274), rejecting the approach in Pearce and adopting the view in Duncan (1981) 73 Cr.App.R. 359 that such statements, once in evidence, should be left to the jury as evidence of the facts.

Tooke (above) suggests that there is a principle that a statement which is not an admission is admissible to show the reaction of the accused at the time he made it. It suggests that such statements are admissible where the accused is taxed either by the police or by somebody else, and that the test of admissibility is a threefold one - whether the statements were spontaneous, relevant and add weight to other testimony in the case. It is said to be a matter for the Judge's discretion where the dividing line falls.

The court considered that such evidence should not be regarded as evidence of the truth of its contents, and that if the accused did not give evidence in the case the Judge would not be under any duty to remind the jury of the statement. In that case the appellant at trial had unsuccessfully sought to adduce a self-serving "witness statement" given after the event at a police station. The appeal was dismissed on the curious basis that the statement was not relevant, since it did not add anything to the evidence already before the jury about the appellant's reaction to the suggestion that he had committed an assault. This latter reference is to the circumstance that a similar self-serving statement made by the appellant at the scene had already been received. The implication is that self-serving statements are generally admissible if the court, in its discretion, thinks the statement is spontaneous, relevant and supportive of some other testimony in the case. With all respect, no satisfactory authority explains the introduction of such a rule which appears to us to raise considerable problems. The use to which the jury may put the evidence once admitted raised further complications, as they are to be told that it is not evidence of the truth of the facts stated. The effect of Sharp does not appear to have been considered. Whilst Sharp did not overrule Pearce and other cases in that line in all respects, it removes an important part of their rationale.

In Australia the rules against self-corroboration and the general prohibition of proving a witness' prior consistent statements are well established:

"The present position in England is similar to that in Australian law. A party cannot tender his own self-serving, out of court statements as evidence of their truth unless some specific hearsay exception applies." (Cross on Evidence Aust.Ed. para. 33455; cf. para. 17335).

". . The tender of a self-serving statement not otherwise in evidence and having no other basis of admissibility would be rejected." (Allied Interstate (Qld) Pty Ltd v. Barnes [1968] 11 L.C.L.R. 518, 585 per Barwick CJ.)

"In my view it cannot be doubted that the accused is not entitled to tender his own prior self-serving statements." (Kochnieff [1987] 33 A.Crim. R. 1, 4, per Connolly J. with whom the other members of the court agreed.)

There may be exceptional cases where the interests of justice require some special qualification of a strict application of the hearsay rule (e.g. Daylight (1989) 41 A.Crim. R. 354; cf. Walton [1989] HCA 9; (1989) 166 C.L.R. 283, 293), but it is highly desirable that the limits upon admissibility of evidence remain identifiable. If an accused person can introduce his own self-serving version to a police officer as evidence, why may he not also introduce such versions that he gives to others at the scene, or to his wife or to anyone else? If an accused can corroborate himself by means of his own consistent statements why may not other defence witnesses do so? Why for that matter should not the prosecution witnesses similarly be able to do so?

A number of rationales have been suggested for the non-receivability of self-serving statements. One of these is the danger of manufactured evidence being put before the jury (cf. R v. Thompson (1975) Crim.L.R. 34-35). Another is that "self-serving statements are inherently unreliable, and any rule which keeps them out has some justification" (Exculpatory Statements by Accused Persons - Elliott and Wakefield (1979) Crim.L.R. 428, 436). They certainly lack the rationale which justifies the reception of admissions against interest as an exception to the hearsay rule. In our view there is no good reason to sanction the introduction of such evidence, even in the limited fashion urged upon us by Mr McMillan.

It may be noted that in R v. Coats (1932) N.Z.L.R. 401 some views were expressed on the basis that exculpatory statements are receivable in criminal trials. Ostler J. observed:

"Exculpatory statements made to the police when making enquiries about a crime or suspected crime, if properly obtained, are always admissible both for and against the person who made them if he is subsequently charged with a crime" (ibid. p. 407).

"His statements are subject simply to the rules of practice which are applied with regard to the putting in evidence of statements taken from accused persons by police officers" (ibid. p. 408).

When a mixed statement is tendered by the exculpatory parts go in with the incriminatory. That presents no problems in relation to the law of evidence.

". . . What a prisoner says is not evidence, unless the prosecutor chooses to make it so by using it as part of his case against the prisoner; however, if the prosecutor makes the prisoner's declaration evidence, it then becomes evidence for the prisoner, as well as against him . . ." (R v. Higgins [1829] EngR 429; [1829] 3 C.& P. 603, 604; [1829] EngR 429; 172 E.R. 565 per Parke J). (our emphasis).

Similarly, if a prosecutor chooses to put into evidence a version which is in substance exculpatory, he makes it evidence in the case, and subject to matters of weight, it can be acted on as showing or tending to show the truth of its contents. There is no general obligation on the prosecution to call such evidence. The calling of such evidence is a benefit tendered by the prosecution and accepted by the defence. If inadmissible evidence is let in without objection it may be used by any party "to the extent of whatever rational persuasive power it may have." Jones v. Sutherland Shire Council (1979) 2 N.S.W.L.R. 206, 219; McGregor-Lowndes v. Collector of Customs (Queensland) (1968) 11 F.L.R. 349; Walker v. Walker [1937] HCA 44; (1937) 57 C.L.R. 630. Coats was an unreserved decision which made no reference to authority, and the assumption that everything said by an accused to a police officer is admissible is contrary to principle. It should not be followed here.

The basis upon which Mr McMillan submitted that such evidence ought to be received was that it would show that the appellant gave a similar version on a prior occasion, and this would show consistency; it would go in as evidence of his reaction to the police investigation, and would support his credit. In our view those matters do not constitute true issues. It is of course possible for such evidence to become admissible if an issue is created, such as recent fabrication. However we reject the submission that such evidence should be received and placed before the jury on any of the above bases. We do not consider that the practice or approach expressed in Tooke (above) should be adopted here.

Before leaving this ground it is worth noting that the appellant was permitted to adduce evidence (both in cross-examination and in his own evidence-in-chief) of statements he made immediately upon the citizens' arrest after his flight. These include statements that he was not the driver and that there was another person in the car. The basis upon which this was allowed was to rebut the inference of guilty mind that otherwise might arise from the flight, and it was an explanation given to the men who captured him. It may well be regarded as part of the res gestae of that particular issue. It plainly falls into a different category from narrative assertions made six hours later in response to police questioning.

In our view no error is shown in the learned trial judge's exclusion of this evidence.

Ground 4 complains that the learned trial judge failed to give a direction to the jury as to the effect that could be given to the evidence that the accused, upon testing, showed a blood alcohol concentration of .255. It seems to have been the aim of the solicitor who appeared at trial for the appellant to show that his client was as drunk as possible, so that an argument could be made that he was so drunk that he could not have driven in the reckless fashion described by the witnesses. Assuming (as we do with some difficulty) that that was a useful submission, we are unable to see any error in the approach taken by the learned trial judge on this question in the summing up. His Honour said:

"It was suggested to you that you could draw some inference from the fact that this accused had a blood alcohol content on a roadside test of .255 and that you could infer from that that he was incapable of driving this vehicle in the reckless fashion that Miss Dowdy described. You are quite entitled to accept the evidence of the police officer that this accused was heavily intoxicated on the night in question. You are quite entitled to accept the evidence of the police officer, that this blood alcohol reading is some five times the legal limit, but the fact of a blood alcohol content is, of course, a scientific measurement and you have no expert evidence before you as to how to construe that scientific measurement and its effect upon an individual human being.

You would be unwise to speculate as to the precise effect to be given to that particular blood alcohol concentration because there is simply no evidence before you as to how you would interpret such a figure. You are entitled, as I say, to take into account that the accused was heavily intoxicated. You have heard some evidence from the police officer and from the accused himself concerning that fact."

In the end the argument on appeal comes down to the fact that His Honour declined to redirect so as to make the further statement "you are also entitled to take into account the evidence of the police officer that his movements were slow and deliberate." A trial judge is not obliged to refer to all the evidence, and in the circumstances there was no obligation to recall the jury in order to remind them of this observation.

Ground 5 is related to the same issue. It concerns the prosecutor's response to the submission by the defence solicitor that a person with a level of .255 alcohol in his blood could not have been driving the car in the fashion the appellant was said to have driven it. In his address the Crown prosecutor said words to the following effect: "I can tell you as a Crown prosecutor of this State that that is just nonsense," and "I am telling you that every day people are picked up with very high levels of alcohol." Upon the appeal counsel for the Crown acknowledged that these remarks should not have been made "in the manner that he did". He pointed out however, that it was a response to overreaching on the part of the defence's solicitor, who had already gone beyond the evidence. Despite the absence of evidence of the necessary effects of consumption to a level of .255, he had proceeded to tell the jury what inferences they could draw on such a measurement. It seems to us that the learned trial judge restored balance to the situation in his summing up, including his reference to the fact that there was no evidence as to the proper interpretation of such a reading, that it was five times the legal limit and that they could take into account that the accused was heavily intoxicated. This direction, along with other directions as to the effect of addresses by counsel was sufficient to avoid any possibility of the jury being overawed by the fact that a Crown prosecutor made such comments. The impropriety could not have led to a miscarriage of justice and if it were necessary to do so we would apply the proviso.

We observe however that it is not appropriate that Crown prosecutors use the dignity of their office in order to "tell" a jury something that is not in evidence. It should not be forgotten that whether the address is to a judge or to a jury, counsel's role is to make submissions, not express personal opinions or enter the fray as a contestant.