R v DAH [2004] QCA 419

SUPREME COURT OF QUEENSLAND

CITATION: R v DAH [2004] QCA 419

PARTIES: R / v / DAH / (appellant)

FILE NO/S: CA No 153 of 2004 / DC No 496 of 2003

DIVISION: Court of Appeal

PROCEEDING: Appeal against conviction

ORIGINATING COURT: District Court at Beenleigh

DELIVERED ON: 5 November 2004

DELIVERED AT: Brisbane

HEARING DATE: 23 September 2004

JUDGES: McPherson JA, White and Cullinane JJ / Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER: Appeal against conviction dismissed

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – CONSIDERATION OF SUMMING UP AS A WHOLE – where the appellant was convicted by a jury in the District Court of indecent treatment of a child under 12 – whether the learned trial judge erred in his direction to the jury concerning the failure of the appellant to give evidence / CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED - where the appellant was convicted by a jury in the District Court of indecent treatment of a child under 12 - whether guilty verdicts were against the weight of the evidence and/or unsafe and unsatisfactory / CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES INVOLVING MISCARRIAGE – MISDIRECTION AND NON DIRECTION – where complainant was 5 years and 6 months when the complaint of sexual abuse was made – where at the time of the trial the complainant was aged 7 years and 3 months – whether the learned trial judge erred in failing to provide the jury with a strong warning emphasising the need for the jury to scrutinise the complainant’s evidence before convicting / CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES INVOLVING MISCARRIAGE – MISDIRECTION AND NON DIRECTION – where no particulars of the indecent dealing were given – where evidence of the complainant of a touching of the vagina area – where evidence by a paediatric specialist which suggested partial penetration of the vagina by a blunt force – whether the learned trial judge misdirected and/or failed adequately to direct the jury when dealing with the medical evidence / Criminal Code 1899 (Qld), s 210, s 618, s 632 / Criminal Law Amendment Act 1892, s 3 / Evidence Act 1977 (Qld), s 15(2) / Evidence Act 1995 (NSW), s 20(2) / Azzopardi v The Queen (2001) 205 CLR 50, considered / Bridge v The Queen (1964) 118 CLR 600, considered / Kops v The Queen [1894] AC 650, considered / M v The Queen (1994) 181 CLR 487, applied / MFA v The Queen (2002) 213 CLR 606, cited / RPS v R (2000) 199 CLR 620, considered / R v Bathurst [1968] 2 QB 99, cited / R v Fellowes & Ors [1987] 2 Qd R 606, followed / R v Kops (1893) 14 LR (NSW) 150, cited / R v Macris [2004] NSWCCA 261, cited / R v Murray (1987) 11 NSWLR 12, considered / R v Phillips and Lawrence [1967] Qd R 237, considered / R v Rhodes [1899] 1 QB 77, cited / R v Stewart [1993] 2 Qd R 322, cited / R v Templeton [1922] St R Qd 165, considered / R v V [2002] QCA 124, CA No 321 of 2001, 5 April 2002, cited / R v Voisin [1918] 1 KB 531, cited / R v Whinfield, unreported, CA No 132 of 1986, 16 September 1986, considered / R v Young [1969] Qd R 417, cited / Robinson v R (1999) 197 CLR 162, considered / Weissensteiner v R (1992) 62 A Crim R 96, cited / Weissensteiner v R (1993) 178 CLR 217, considered

COUNSEL: A J Kimmins for the appellant / S G Bain for the respondent

SOLICITORS: Compass Legal Solutions for the appellant / Director of Public Prosecutions (Queensland) for the respondent

McPHERSON JA: The fundamental rule in the trial of a criminal charge at common law is that the prosecution must prove the guilt of the accused beyond reasonable doubt. It is difficult to escape the impression that the legislative decision made over a century ago to permit the person charged with what was then designated a felony to testify in his own defence has to some extent compromised the simplicity of the fundamental rule and the purity of the accusatorial procedure. In particular, it raised the question whether, if the accused gave evidence, he or she should be liable to cross-examination on his or her previous record; and, if he or she did not testify, whether it would be legitimate to draw inferences in support of guilt from the failure to do so. Only the former but not the latter was initially the subject of distinct legislative attention.

Legislative responses to both questions have over time varied from one jurisdiction to another. In spite of warnings from the local legal profession (Supreme Court of Queensland: History, at 114), in Queensland the legislation (s 3 of The Criminal Law Amendment Act of 1892) enabling the accused to testify was passed in Queensland. It has always, and evidently deliberately, omitted the qualifications then or subsequently engrafted in other jurisdictions. As a result, the procedure adopted in criminal trials in this State has differed from those elsewhere in three important respects. First, as an incident of tendering himself or herself as a witness, the accused was by s 3 of the Criminal Law Amendment Act of 1892 originally “liable to cross-examination as in other cases”, meaning that questions could freely be asked by the prosecutor about prior criminal convictions. It was not until as recently as 1961 that the limitations embodied in s 3 of the Criminal Evidence Act 1898 in England were finally adopted here by The Criminal Code and other Acts Amendment Act of 1961, which inserted in s 618A of the Code a provision that is now to be found in s 15(2) of the Evidence Act 1977. Before then, prosecutors had taken advantage of the power to cross-examine on the accused’s criminal record, as can be seen from the debate in the legislative assembly in 1961 as reported in vol 229 of the Queensland Hansard, at 2809-2810.

So much for the case in which an accused elects to give evidence at the trial. The other respects in which the law of Queensland differed, and still does, from other Australian jurisdictions are relevant primarily to a case in which the accused elects not to testify at trial. Whereas in other states there have for a 100 years or so been legislative prohibitions against judicial comment on an accused’s failure to give evidence, the Criminal Code has, since it came into force in 1900, incorporated two provisions bearing directly upon the accused’s failure to take the witness stand. The first, in s 618 of the Code, provides:

“618. At the close of the evidence for the prosecution the proper officer of the court shall ask the accused person whether the person intends to adduce evidence in the person’s defence”.

The second provision in s 620(1) of the Code applies when the evidence and addresses are concluded, at which stage:

“It is the duty of the court to instruct the jury as to the law applicable to the case, with such observations upon the evidence as the court thinks fit to make.”

The impact of these two statutory provisions is in practice not inconsiderable. In the first place, s 620(1) has consistently been regarded as formally authorising a judge in Queensland to comment on the accused’s failure to give evidence. The judicial capacity or freedom to do so has been recognised as distinctive in a number of decisions including Azzopardi v The Queen (2001) 205 CLR 50, at 72 §59. In practice, however, judicial self-restraint has over time severely limited the circumstances in which such comment or “observations” are undertaken. The relevant authorities are discussed in the reasons of White J in this appeal. Essentially the position arrived at in Queensland has been similar to what it was in England, where no such statutory prohibition existed, before the enactment there of s 35 of the Criminal Justice and Public Order Act 1994. See on this, Kops v The Queen [1894] AC 650; R v Rhodes [1899] 1 QB 77, 93; R v Voisin [1918] 1 KB 531, 536; Bridge v The Queen (1964) 118 CLR 600, 613; R v Bathurst [1968] 2 QB 99, 107-108; Archbold §4-431 (1982 ed); and Weissensteiner (1992) 62 A Crim R 96, at 108.

What has, however, differentiated Queensland from other Australian States and New Zealand is not simply the absence of any statutory prohibition on judicial comment about an accused’s absence from the witness box, but the requirement in s 618 of the Code. Far from ignoring the failure of an accused person to give evidence, s 618 calls for his or her decision not to do so to be made in the face of the jury at the trial. The “proper officer” in s 618 may be, as White J suggests in her reasons, the judge; or it may be, as I think is also common practice, the associate acting at the Judge’s direction. The fulfilment of this statutory duty may be a reason why Queensland juries rarely ask why the accused has not given evidence at the trial. They hear him or her both being asked and answering whether or not he or she intends to go into evidence. Some judges in this State insist on having the accused respond in person. Others are content with a response from counsel, if any, which commonly takes the form that the accused does not (if that is the case) intend to give or to call evidence in his or her defence. In giving statutory sanction to this procedure in s 618, the Code Commission in 1899 probably had in mind contemporary English authority to the effect that the accused, if not represented at the trial, must be clearly informed of his right to testify. The statutory requirement, which did not appear in this unqualified form in cl 645 in the original draft Code of 1897, has in Queensland rendered judicial comment on the accused’s failure to do so largely otiose, even though observations on the evidence are expressly authorised by s 620(1) of the Code.

Apart from the enactment of s 20(2) of the Evidence Act 1995 in New South Wales, nothing has happened to alter the law in Queensland as I have stated it to be, unless it be the decision in Azzopardi v The Queen (2001) 205 CLR 50. There, and in the associated appeal of Davis v The Queen, the High Court was concerned with s 20(2) of the Act of 1995, which in New South Wales now authorises judicial comment on the failure of a defendant to give evidence in criminal proceedings for an indictable offence. It is, however subject, to a prohibition not expressly prescribed in the law of Queensland that the comment must not “suggest” that the defendant failed to give evidence because the defendant was, or believed that he or she was, guilty of the offence concerned.

In disposing of the foregoing two appeals the majority of the Justices of the High Court (Gaudron, Gummow, Kirby and Hayne JJ) concluded that there had been a breach of the statutory prohibition, saying that “suggest” is “a word of very wide application” (205 CLR 50, at 71). The complaint levelled against the summing up in Azzopardi concerned a particular passage in which the learned trial judge instructed the jury that they were entitled to take into account the fact that the accused did not deny or contradict evidence that was within his personal knowledge and of which he could have given direct evidence; and -

“where the complainant’s evidence or the witness’s evidence is left undenied or uncontradicted by the accused any doubt which may have been cast upon that witness’s evidence may be more readily discounted and that witness’s evidence may be more readily accepted as the truth.”

Of this passage in the summing up, their Honours said (205 CLR 50, at 77):

“If the impugned passage had stood alone, there could be no doubt that it was a comment on the failure of the appellant to give evidence which contravened the prohibition in s 20(2). Standing alone, it can be seen only as suggesting to the jury that the fact that the accused did not give evidence was a reason to accept the prosecution’s contention that he was guilty. That is, standing alone, it suggested to the jury that the accused did not give evidence because he was, or believed he was, guilty of the offence charged.

The impugned passage, however, did not stand alone. It was given in the context of the earlier directions given by the trial judge, which explicitly warned the jury against thinking that the accused decided not to give evidence because he was or believed himself to be guilty of the offence. In that context, the passage was, at best, confusing and contradictory of the earlier directions. And given that the prohibition in s 20(2) is not to be given a narrow construction, it must be concluded that the passage contravened s 20(2) by suggesting that the accused did not give evidence because he was guilty of the offence charged.”

Similarly, the portion of the summing up held to be objectionable in the appeal of Davis was the statement that the accused’s failure to give evidence might enable the jury better to evaluate the weight of other evidence in the case: the fact, it was said, “that he has not given testimony may assist you when you come to evaluating the other evidence in the case” (205 CLR 50, at 79). Their Honours held (205 CLR 50, 80) that the matter was one in which the use which the trial judge said might be made of the accused not having given evidence went well beyond the limit permitted by Weissensteiner v The Queen (1993) 178 CLR 217 and beyond that permitted by s 20(2) of the Evidence Act 1995 (NSW), and so had infringed that provision. Because of the overwhelming case against the appellant, their Honours in Davis nevertheless held that there had been no miscarriage of justice at the appellant’s trial and accordingly dismissed the appeal (205 CLR 50, at 80).

The present appeal differs from both of those considered by the High Court in Azzopardi. The learned trial judge here made no comment or suggestion that the appellant’s failure to testify had in any way strengthened the evidence of the complainant or other prosecution witnesses, whether by reason of his failure to contradict or explain it or otherwise. Indeed, his Honour expressly directed the jury that the fact that the appellant had chosen not to given evidence “does not strengthen the case, or supply additional proof of the case against him”. His Honour was not asked to give, nor did he give, any direction based on Weissensteiner v The Queen (1993) 178 CLR 217 suggesting that the appellant had left unexplained any facts that were peculiarly within his knowledge; or that, because the evidence of the prosecution witnesses was not contradicted, it might help the jury better to evaluate the testimony of those witnesses. In short, his Honour made none of the errors that in Azzopardi or Davis were held to jeopardise the integrity of the summing up.

Because of the submission advanced by the appellant on this appeal, I consider it desirable to set out the detail of his Honour’s directions in this case on the onus of proof, which I regard as exemplary. He said to the jury:

“Let us go directly to the general directions. These must be given to every jury in every trial in this State. The first relates to the onus of proof. In our system of justice, it is for the prosecution to prove any criminal charge that has been brought. So, we say that the burden of proof rests on the prosecution to prove the guilt of the accused person.

It follows logically that there is no onus on the accused person to prove his or her innocence. An accused person is presumed innocent and retains the benefit of that presumption until it is displaced by proof of guilt.

In this case the accused man has chosen not to give evidence. One consequence of the rule that the onus of proof rests on the prosecution is that an accused person is not under any legal obligation to give evidence.

While you have not heard the accused man deny from the witness box that he committed either offence, the fact he has not given evidence in his trial does not by itself support an inference against him.

The rule you have to apply is that no adverse inference should be drawn against him because he decided not to give evidence. It is a choice he is permitted to make by law. Equally, the fact that he chose not to give evidence does not strengthen the case, or supply additional proof of the case against him.”

It was nevertheless argued that in Azzopardi v The Queen (2001) 205 CLR 50, at 70, their Honours had said that it will “almost always” be desirable for the judge to warn the jury that the accused’s silence in court “… may not be used to fill gaps in the evidence tendered by prosecution, and may not be used as a make-weight in assessing whether the prosecution has proved its case beyond reasonable doubt”. It is true that his Honour did not use the word “make-weight”; but, unless in Azzopardi their Honours were (which I respectfully take leave to doubt) prescribing the mandatory use of a particular verbal formula for directing a jury whenever an accused elects not to give evidence, his Honour’s directions here were completely adequate and satisfactory. His instruction that the appellant’s election or choice not to give evidence did not strengthen the case or supply additional proof of the case against him was the equivalent of the allegedly omitted words and it comprehensively stated their effect. In this regard, I share the hesitation of White J in indorsing the use of an expression (“make-weight”) which a jury might not find particularly helpful in an evidentiary context.

In this particular, the learned trial judge in my respectful opinion made no error in his summing up of the case against the appellant. In other respects I agree with the reasons of White J, to which I have nothing to add.

The appeal against conviction should be dismissed.

WHITE J: The appellant was charged with two offences pursuant to ss 210(1)(a) and (e) of the Criminal Code respectively that on a date unknown between 31 December 2001 and 9 August 2002 he unlawfully and indecently dealt with a child under the age of 16 years and between the same dates and in respect of the same child without legitimate reason wilfully exposed her to an indecent magazine.

The child, the daughter of the woman with whom the appellant was then living, was born on 17 February 1997. She was aged between four years and 10 months and five years and six months when the alleged offences occurred.

The trial commenced on 19 May 2004 and concluded with the appellant’s conviction of both offences on 24 May. The child was aged seven years and three months at the time of trial. She had been interviewed by a policewoman on the evening of 8 August 2002, the date the complaint of sexual abuse was made. The child was then aged five years and six months.

No particulars of the indecent dealing were given (or had been sought by the defence) but the evidence of the child was of a touching of her vagina area. Evidence by a paediatric specialist suggested partial penetration of the vagina by a blunt force.

The appellant neither gave nor called evidence.

The appellant criticises the learned trial judge’s directions to the jury in a number of respects in that

(i) he misdirected and/or failed adequately to direct the jury when dealing with the medical evidence;

(ii) he erred in failing to provide the jury with a strong warning emphasising the need for the jury to scrutinise the complainant’s evidence before convicting;

(iii) he failed to give proper directions regarding the failure of the accused to give evidence.

The appellant further contends that the verdicts of the jury are against the weight of evidence and/or are unsafe and unsatisfactory.

The complainant child’s mother commenced a relationship with the appellant when the child was aged about two and a half years. There was a brother about two years older. The family moved twice before residing at the house where the offences allegedly were committed at about Christmas 2001. The relationship between the mother and the appellant deteriorated and they occupied separate bedrooms after the first few months of the move to the new house. The children each had their own room.

The mother took her daughter to the local general medical practice on 15 July 2002 after the child had complained of soreness in her vagina area. The mother noted redness. She had earlier seen a dark bloodstain/discharge on the child’s underpants. A urine test produced negative results.

Some days later the child stayed with her maternal grandmother for two nights. She had a bath in the afternoon prior to being collected by her mother to go home. The grandmother noticed dark blood stains which were not fresh on her discarded underpants and drew this to the mother’s attention. On 26 July the mother took the child to the same medical practice as previously but saw a different doctor. After examining the child and noting her vagina to be inflamed and with a rash the doctor concluded that she was suffering from a vaginal infection.

The appellant had had no opportunity to be alone with the child during her visit to her grandmother’s house, although he had visited.

On the evening of 8 August the mother and her two children were jumping around on the mother’s bed playing. After she told the children that it was time to go to sleep her son did so. The complainant child said to her mother

“Mummy can I tell you something?”

The mother agreed and the child said

“[the appellant] touched my fanny and showed me dirty books.”

The mother’s evidence was that her daughter then said

“He showed me dirty books with the man’s dick in the woman’s mouth.”

The mother asked her daughter how many times and she answered “Once”. The mother asked her why she had not told her and the child said,

“ ‘Cause he told me that he would not be my friend anymore.”

The mother immediately telephoned police and then her mother.

Police attended at the residence and promptly searched the appellant’s room. He arrived home towards the end of the police visit. Police recovered a number of pornographic magazines from a drawer in a bedside table which were covered with clothing. They also found about 20 magazines on top of a wardrobe nearby of a similar kind. The magazines contained several images of women performing oral sex on men.

The child was brought to the Juvenile Aid Bureau at the local police station and interviewed at 10:45pm by a woman senior constable attached to the Bureau. She asked the child a number of preliminary questions in order to settle her down including ascertaining whether she could understand the difference between telling the truth and telling lies. The child answered firmly with a colourful consequence for telling lies and said that she was going to tell the truth. The policewoman asked her if there was anything that she wanted to tell her about something that had happened to her. The child answered,

“I told [the appellant] you mustn’t touch my rude part.”

She said it had happened,

“Once when I slept with [the appellant].”

When asked what her “rude part” was she answered,

“My fanny”.

She was then able, in a practical way, to identify that part of her body.

One of the particulars of the unsafe and unsatisfactory ground of appeal is that her behaviour on the tape was wholly inconsistent with a traumatised child. It was submitted that she appeared happy and playful and completely unflustered when giving evidence. That is not the impression conveyed to me. When she started answering questions about what had happened to her she sunk very low in the leather armchair and gave a distinct impression of not liking answering those questions whereas previously she had been quite composed and cheerful talking about her various pets.

When asked how the appellant had “touched your rude part” she answered “I don’t know”. Again when asked “How did he touch it?” she answered, “I don’t know” and appeared to shrink down into the chair. The policewoman then asked her, “Do you know what he touched it with?” The child answered, “His hand”. She said that it happened “at home” inside the house. At this point she appeared to be quite upset. She said the touching took place in “my Dad’s” room. This was how she referred to the appellant. She told the policewoman that her mother had gone to get some wine and that her brother was in bed asleep and that it had occurred at night time.

A number of the child’s responses were by shaking or nodding her head which are not recorded on the transcript of the interview which was not admitted as an exhibit and was not taken into the jury room although the jury had copies while the video was played. When asked what she was wearing, if anything, when the appellant “touched your rude part”, she answered “my nightie and my knickers”. She was asked whether the touching was on top of her clothes or under her clothes and answered “Under”. When the policewoman asked her how the appellant touched her she answered, “I forgot that too.” She was asked, “You said he used his ‘hand’. Do you know what part of his hand?” The child shook her head and the policewoman continued, “No. Ok. Do you know [how] long he did that for when he touched your rude part? Do you know if it was for a long time or a short time or anything like that?” The child replied, “Short time”.

The policewoman asked, “Did you say before that you’d slept with him? Can you tell me about that?” The child nodded her head and the policewoman asked, “Where did you sleep with him?” She answered, “At home” and, “in his room”. She observed that the room was messy and the clothes were all on the floor. She said that she slept in his bed and when asked, “Can you tell me what happened when you were in his bed?” she answered, “No”. The child confirmed that this was the same occasion that he had touched her when her mother was out getting wine. She shook her head when the policewoman asked whether the appellant had ever done anything else to her.

The policewoman then said that some magazines had been found in the appellant’s room and asked the child if she knew anything about them and whether she had even seen them. She answered, quite firmly, “Only one”. The policewoman asked her, “What can you tell me about that?” to which the child replied, “Girls sucking men’s doodles” and when asked who had shown her she replied, “[the appellant]”. The policewoman then obtained a further description of the pornographic picture from the child.

At this point the policewoman, who had been sitting on the floor with her legs curled up under a low table, stretched her legs out so that her feet showed on the other side of the table. The child, who was close by, looked at the policewoman’s shoes and said, “I like your shoes”. I mention this because if only the transcript is resorted to it appears quite odd and out of context. There follows a short conversation about shoes.

When asked by the policewoman whether the appellant had said anything when he showed her the magazine the child answered, “Nothing” and lay down in the chair as she spoke. The policewoman then asked the child to pretend that a document on the table of several pages was the magazine and to show her how the appellant had showed it to her. The child answered, “He climbed out of the bed and showed me like that” and turned over the pages of the document close to the policewoman one after the other. She said that she saw “lots” of photos. Again when asked what was depicted in the photographs she replied, as before, again lying down in the chair. She was asked what other things she had seen in the book and answered, “Just that”. She said she then went to sleep in the appellant’s bed.

She was asked whether she had been to see a doctor and replied, “Fanny was red all the time”. She said the visit was not long ago and that she could not miss her pink medicine. She said she knew about the redness because she and her mother had looked.

In response to a question about how many times the appellant had touched her body she replied, “One” holding up a finger. She denied that anyone else had ever touched her like that, shaking her head at the same time. She said the light was on and the appellant’s bedroom door half closed. She described him as wearing “trackie pants” and no top.

The child said that she had told her mother of this episode that evening (impliedly, for the first time).

The policewoman asked the child whether she went to see the doctor before or after the appellant had touched her. She replied, “I suppose I went to the doctor’s then he done it”. She was asked, “Did you go to the doctors after he did it?” and the child shook her head.

The child’s mother who gave evidence did not have a very clear sense of chronology for these events excusing her lack of clear memory by saying that they occurred two years ago. She said when she collected her daughter from her mother’s house her mother had asked her to look at the child’s underpants. She saw dark red blood stains and took her to the doctor. She was unsure whether it was before the second visit or afterwards when her daughter was complaining about being sore in her vagina area. She took the child into the bath with her asking her if she had hurt herself at preschool. She explored whether any of the male persons with whom the child had contact had touched her, naming each of those persons, including the appellant. The child denied that any of them had touched her in that way. The mother thought that conversation took place at the most two to three weeks before 8 August when the child made the complaint. After the child made the complaint her mother left the room momentarily and the child then telephoned her maternal grandmother telling her of the abuse.

The mother did not raise with either of the doctors the possibility of sexual abuse.

The complainant child was cross-examined via remote video. After some preliminary questioning she was asked how she got on with the appellant and answered, “Bad” but did not elaborate further. She was asked if she could remember speaking to her mother about the appellant and she said that she could. She was asked, “What did you tell her?” The child answered, “He tried to hump me”. She was asked what she meant by this expression and answered, “He tried to touch me.” After some questioning about how she knew the word, to which there was no clear answer, she was asked what happened. She replied, “He tried to touch my rude part”. She said she could not really remember what had happened but that it occurred at night time in his room. When asked if she could remember what she was doing before she went into his room she answered, “Not really,” but did remember that her mother had gone to get wine from the shops because her mother had told her that was what she was doing.

In response to the question “So you went into his room and what happened then?” she answered, “He tried to hump me”. When asked where the appellant was she said he was in his room in his bed but when asked, “And what did you do?” she answered, “I forgot”. That was her answer when asked the question “Well, whereabouts were you when you say he tried to touch you?” She remembered that she was wearing her nightie and her knickers. She did not remember how he “humped” her. She was asked, “Did he do anything else to you?” to which she answered, “No”. She was then asked, “And did he hurt you when he tried to hump you?” and she answered, “Yes.” She was asked, “Where did it hurt?” and her answer was, “He sat on my arm” but forgot where she was when he sat on her arm. In response to the question, “So, he didn’t hurt you anywhere else?” she answered, “No”.

The complainant child was asked about her conversation with her mother in the bath and in response to the question, “Do you remember what was said?” she answered “No”. She remembered telling her mother that no one had touched her. She was then asked whether when the appellant tried to hump her it happened before or after the conversation with her mother in the bath and she answered, “Before”. She did not recall for how long the appellant had tried to touch her. She denied that anyone had assisted her with her answers either to the policewoman or otherwise. Defence counsel again asked her, “When you say, ‘He tried to hump me,’ does that mean he tried to touch you?” to which the child answered, “Yes”. Counsel then observed, “But you don’t remember how he tried to touch you?” to which she responded, “No, not really”.

After the prosecutor had declined to ask any questions in re-examination defence counsel then sought to ask some further questions. The following exchange took place

“What I want to say to you is that [the appellant] never touched your rude part? -- Pardon.

Well, if I said to you [the appellant] never touched your rude part, what would you say back to me? -- He did.

He did? And what if I said to you, [the appellant] never – well, [the appellant] never showed you any dirty magazines? -- He did.

He did? Do you remember that? -- Yes.

When did that happen? -- When he tried to hump me.

So, he tried to hump you. Did he actually touch you on your rude part when he tried? -- Yes.

All right. But you don’t remember how? -- No.

Or do you remember now? -- I don’t.

All right. And where was the magazine when he showed you? -- In his hand.

In his hand. Where were you? -- I forgot.

Was it in his bedroom or in the lounge room? -- In his bedroom.

All right. And was this – was it anything to do with sitting on your arm? -- I don’t really know.

Sorry? What was that, [child]? -- I don’t really know.

All right. And who told you it was a dirty magazine?

HIS HONOUR: Well, actually that assumes that someone did.

MR HARRISON: Oh, well – did someone tell you it was a dirty magazine? -- No.

All right. What made you think it was a dirty magazine? -- ‘Cause there was a picture on the front.

What was the picture? -- I forgot.”

The prosecution called Dr R F Roylance, a specialist paediatrician expert in the field of child abuse. He examined the complainant child in the company of her mother in January 2003. On his examination of the child’s vagina using a magnifying light he noted some loss of symmetry and some loss of tissue at the 6 o’clock position at the entrance to the vagina. When asked by the Crown prosecutor whether this and his other clinical findings made it possible for him to make any comment as to whether his findings were consistent with the child having been sexually abused or interfered with answered,

“I try to be cautious about saying that these sorts of physical findings are absolutely kind of proving of sexual abuse, but they certainly are of the magnitude and of the style that would, of themselves, separate from any history, have been noted by me if I were examining this child for some other reason completely separate from concerns about sexual abuse, and then very consistent with concerns about possible sexual interference.”

He was asked, whether the sexual interference would be consistent with the touching of the vagina and answered

“It would be consistent with touching – it would be consistent, really, with any sort of blunt trauma to this area and I would be unable – not able to assist the Court in deciding whether that would be a finger or an object or a penis or any other sort of physical manifestation. And the other issue that arises from that is, I can’t – almost certainly cannot tell the Court what sort of time course this event may have occurred.”

When asked the most likely medical diagnosis for the hymnal asymmetry Dr Roylance answered,

“I would say the most likely medical diagnosis, and I need to be cautious because that may be different from the criteria the Court may use for this diagnosis, but the likely medical diagnosis would be the child’s sexual abuse but, again, I need to be appraised in the course but that’s the most likely diagnosis not the absolute certain diagnosis.”

When asked in cross-examination about the factors that led to his conclusion Dr Roylance said that “it is possible that the bleeding is completely separate from these events” [of sexual abuse]. He agreed that if some damage occurred to the child’s vagina due to something being inserted into it any bleeding caused by abrasion would be expected to occur “in a very short time course” and healing would also be “quite quick”. He would have expected that blood coming onto the child’s underpants associated with a break in the skin or in the mucus membrane would have been deposited “within a very short time period”, meaning hours. Dr Roylance said that to produce the abnormalities which he observed in the hymen would require blunt force to the hymen itself and perhaps a very small penetration into the vaginal canal.

When describing how a child such as the complainant might experience pain he said,

“In fact, in many children we see the abrasion and pain et cetera may not come from the vagina or the hymen at all. It may come from the tissues surrounding that area, which is where the penis may actually be rubbing. As the penis then comes towards the vaginal opening, it may produce then some trauma to the hymen, which in young children is generally uncomfortable and may be painful, and may or may not produce bleeding. There’s not absolute answers to that.”

Dr Roylance said that such activity was likely to cause discomfort and possible pain to a child of five but depended on force and other factors. He noted that since the hymen did not cover the whole of the vaginal opening it was possible to insert objects without touching the wall of the vagina or to touch the hymen. With care it would be possible to insert something small like a cotton bud without touching. He thought it may be possible, “to actually put the tip of the finger through the vaginal opening without causing significant distress or pain” but clearly if “an adult finger [was inserted] abruptly and quickly through that area, it could be very painful.” He was unable to say how painful it would have been for the complainant. He agreed that there could be a re-bleeding of an old injury. He noted that where allegations of touching had been verified only in a minority of cases that there was persistent physical findings. More often than not the examination would be normal.

Misdirection about the medical evidence

The passage in the summing up concerning the medical evidence about which the appellant particularly complains was given after a lengthy analysis by the learned trial judge of Dr Roylance’s evidence. His Honour said

“We may think of the child’s evidence as divisible in a sense into two statements. Firstly a statement that she was touched sexually, and secondly, a statement that the person who touched her in that way was the accused. That was her evidence. The medical opinion evidence may tend to confirm the first of those statements, but by itself it does not identify the person responsible for any sexual interference on her.”

The complaint is that this gave the jury “a completely inaccurate view of the evidence.” This was, so the argument goes, because the evidence of the child did not either in the police interview on 8 August nor in cross-examination mention penetration, a finger going inside her, discomfort or pain, or bleeding following touching and something of that kind was necessary to be consistent with Dr Roylance’s findings and evidence.

The learned trial judge gave directions about Dr Roylance’s evidence immediately following his directions about the complainant child’s evidence and how the jury might approach it. He recounted Dr Roylance’s evidence for the benefit of the jury about which there is no complaint, including his failure to find any natural explanation for the loss of symmetry and loss of tissue in the child’s hymen. He read a number of passages from Dr Roylance’s evidence including the examination which was “consistent with touching with any sort of blunt trauma to this area ...” but could not say with what object it was caused or when.

The learned trial judge read to the jury Dr Roylance’s diagnosis that the most likely cause of what he observed was sexual abuse. This was followed by Dr Roylance’s evidence about the blood loss “... but I do need to be clear, that it is possible that the bleeding is completely separate from these events.” His Honour recounted Dr Roylance’s evidence that damage to “that part of the body normally bleeds quite quickly”.

On the question of pain to the child the jury were reminded of Dr Roylance’s evidence that insertion into the vaginal canal was likely to cause discomfort and possibly, cause pain but depended on issues of force and other factors. His Honour reminded the jury that Dr Roylance was unable to say how painful it would have been for “this girl at that time”.

The learned trial judge read to the jury Dr Roylance’s evidence about loss of tissue and Dr Roylance’s agreement that more than just a general touch would be necessary, “somewhat forceful”. The jury were reminded of Dr Roylance’s evidence that when he examined children who were known to have been abused more likely than not the examination would be normal.

The learned trial judge explained how Dr Roylance’s evidence could be approached reminding them again of Dr Roylance’s opinion that the blood may be irrelevant to sexual interference. He said

“Dr Roylance’s opinion evidence accordingly is evidence that may tend to confirm part of the complainant child’s statement and evidence. That is, that she was the victim of sexual interference by someone.

It is important to note that the medical evidence does not identify any person as the person responsible for the damage to the child’s hymen.”

The child’s lack of evidence about precisely what physical act occurred in respect of the indecent dealing apart from “touching [her] fanny” or her “rude part” is not contradicted by the medical evidence as the appellant contends. Dr Roylance’s evidence was that there can be penetration without significant discomfort and that the bleeding was not necessarily connected to the child’s physical abnormality.

The direction about the medical evidence was extensive and involved no error.

Failing to give the jury a strong warning to scrutinise the complainant’s evidence

The appellant contends that circumstances dictated that a strong warning should have been given to the jury about the danger of convicting on the complainant child’s evidence. The circumstances which the appellant alleges called for that strong warning were the age of the child, the lack of fresh complaint, the lack of corroboration, the medical evidence alleged by the appellant to contradict the complainant’s testimony, the earlier denial by the complainant that the applicant had interfered with her, and the vagueness of the complainant’s evidence.

Section 632(1) of the Criminal Code, inserted in 1997, provides that a person may be convicted of an offence on the uncorroborated testimony of one witness while subsection (2) makes it unnecessary for a judge to warn the jury that it is unsafe to convict on the uncorroborated testimony of one witness. Subsection (3) does not prevent a judge from making a comment on the evidence “appropriate ... in the interests of justice” but may not warn or suggest in any way to the jury that the law regards any class of persons as unreliable witnesses. Robinson v R (1999) 197 CLR 162 concluded at 168 that s 632(2) “is not aimed at, and does not abrogate, the general requirement to give a warning whenever it is necessary to do so in order to avoid a risk of miscarriage of justice arising from the circumstances of the case ...” The High Court referred with approval to a discussion in R v Murray (1987) 11 NSWLR 12 at 19 concerning to similar NSW provisions.

“The fact that a judge does not comment upon the absence of corroboration of the complainant’s evidence cannot, in my view, in the case of those offences to which s 405C applies now be made the basis of a criticism of his summing-up, but again this does not mean that the judge cannot or should not, as is done in all cases of serious crime, stress upon the jury the necessity for the jury to be satisfied beyond reasonable doubt of the truthfulness of the witness who stands alone as proof of the Crown case. In all cases of serious crime it is customary for judges to stress that where there is only one witness asserting the commission of the crime, the evidence of that witness must be scrutinised with great care before a conclusion is arrived at that a verdict of guilty should be brought in ...”

The learned trial judge directed the jury about the evidence of complaint made by the child to her mother and on the telephone to her grandmother and told them, correctly, that that evidence was relevant only to the issue of her credit as a witness. He related the evidence of the complaints to issues of consistency. He then moved to the interview with the policewoman on 8 August 2002. He told the jury the weight that should be given to the out of court statement “can be difficult to determine” and noted it was a question for them. He told the jury that regard had to be had to all the circumstances from which an inference could reasonably be drawn as to the accuracy or otherwise of the statement including, whether it was made contemporaneously with the occurrence of the facts to which the statement related, and whether or not the maker had any incentive to conceal or misrepresent the facts. He reminded them of the possible time period from Christmas 2001 to 8 August 2002 which could have been covered by the complaint. He mentioned the child’s age when the statement was videoed and reminded them of the earliest age of the child when the alleged abuse could have occurred. He told them that the purpose of the requirement to video-tape the evidence of young children for presentation in a trial was to preserve the evidence of those children as well as to minimise some of the problems involved with young children giving evidence in court. He reminded the jury that they had seen her give evidence by closed circuit television and this had provided an opportunity for the defence to test her evidence.

His Honour observed,

“You can see, therefore, when reflecting on this case, how our system struggles to be fair both to those accused of these offences and to the children who come before the Court saying things like this have happened to them.

Ultimately, we rely heavily on the good sense and understanding of juries to preserve the necessary balances within the rules that govern these trials.”

He reminded the jury that proof of the charges was dependent upon their acceptance beyond reasonable doubt of the complainant child’s statements both on 8 August and during cross examination. He noted the difficulties for the defendant in that the charges were non-specific as to time noting that such charges “may impose real difficulties for an accused person for a number of reasons”. His Honour proceeded to tell them that the means of disproving the charge may not be available or it may not be possible to answer the charge effectively because the allegation was not specific. He noted that in such cases, “sometimes all that an accused person can do is to deny, in general terms, any wrongful conduct” and he reminded them to take those general matters into account when assessing the evidence.

His Honour made observations about the evidence of the child. He gave them the direction required by the Evidence Act that because she had given her evidence by video and closed-circuit television no inference was to be drawn as to the appellant’s guilt. He reminded the jury that the child was the most important witness in the trial; that she was now seven years old and had been five and a half at the time of interview. He said

“There is no other witness to what occurred. As a consequence, you could not convict the accused of either charge, unless you accept [the child’s] statements and evidence about the charge beyond reasonable doubt. And it is in that sense that she is the most important witness.”

He repeated that warning and continued,

“In reflecting on her evidence, we can see the combination of the observations or perceptions of a child of five years, perhaps even four or five years, recalled in the interview on the 8th of August 2002, together with her evidence in Court yesterday at the age of seven years.

The assessment of evidence of children can be a difficult task. Young children may be prone to imagination or suggestion. A young child may have difficulty with understanding and with memory.

I am not of course, an expert on children, and I have no special knowledge about children, but I suggest that as a matter of common sense, a child of five or seven, would not have the intellectual capacity of a mature adult.

In considering her evidence, some questions that may be relevant are these, did she have the mental ability to understand what she said the accused did to her? Did she imagine what she said the accused did to her or, did she misinterpret some innocent actions by the accused? Is her memory preserved in the recorded statements of the 8th of August 2002, a reliable one? And of course, are her statements in evidence truthful?”

The learned trial judge reminded the jury that children are not small adults and again asked them to keep firmly in mind when considering her evidence whether the child was endeavouring to tell the truth and whether her evidence was reliable. His Honour did not refer to the want of fresh complaint and the earlier denial by the child to her mother in the bath that the appellant had interfered with her and the vagueness or want of detail in her various accounts. He did refer to these matters thoroughly when summarising the prosecution and defence addresses. From time to time when doing so, in a sense, in an aside to the jury, he reminded them that he had already made reference to certain aspects of counsel’s submissions in his earlier directions to them. His Honour’s lengthy recital of the addresses of counsel and the evenness with which each counsel’s submissions were summarised meant that in an uncontentious way the jury were reminded of the weaknesses in the prosecution case. In particular he made reference to the denial to the mother, the disclosure and subsequently the child’s statement to her mother that she had been interfered with twice. Reference was made by both counsel to the lack of detail in the child’s evidence so these were matters which were last heard by the jury. As the High Court in Robinson quoting from Murray noted, it was the truthfulness of the essentially uncorroborated evidence of the child which was of paramount importance.

Mr Kimmins for the appellant referred to R v V [2002] QCA 124 concerning the need for a warning to the jury to scrutinise a complainant before convicting. That was a very different case with a combination of circumstances, including an omission by the trial judge to mention the evidence of a witness which, if accepted, was capable of refuting the complainant’s allegation. Here the defence submissions tended to focus on suggesting that the complainant child had been “coached” to make her complaint because of a falling out between the mother and the appellant and/or some shadowy suggestion of a work relationship with the grandparents which failed. It was put to the mother that she had made up her daughter’s allegation of abuse but it was not put to her that the child had been coached. What the jury needed to be alerted to by the judge was the difficulty of assessing the evidence of a very young child and the need to be satisfied that she was truthful. The facts and circumstances of each case will dictate what directions are appropriate and how they should be expressed, R v Stewart [1993] 2 Qd R 322 at 324. The directions sufficiently appraised the jury of the need for careful assessment of the complainant’s evidence.

Failure to give proper direction about the failure of the accused to give evidence

The complaint on this ground is in two parts. The first is said to constitute an express misdirection contained in the following passage

“While you have not heard the accused man deny from the witness box that he committed either offence, the fact that he has not given evidence in his trial does not by itself, support an inference against him.” (emphasis added)

The appellant contends that the expression “by itself” conveys to the jury that the failure to give evidence by itself cannot be used against the appellant but, taken with any other factor or circumstance, it may be utilised by them to support an inference of guilt. The expression also encompasses a meaning that the accused’s failure to give evidence has no evidential value. Gaudron, Gummow, Kirby and Hayne JJ in their joint judgment in Azzopardi v The Queen [2001] 205 CLR 50 at para 34 said

“It is, therefore, clear beyond doubt that the fact that an accused does not give evidence at trial is not of itself evidence against the accused.” (emphasis added)

Immediately following the challenged sentence his Honour continued

“The rule you have to apply is that no adverse inference should be drawn against him because he decided not to give evidence. It is a choice he is permitted to make by law. Equally, the fact that he chose not to give evidence does not strengthen the case, or supply additional proof of the case against him.”

His Honour had earlier directed the jury about the obligation of the prosecution to prove the criminal charge beyond reasonable doubt and that as a consequence there was no obligation on an accused person to prove his or her innocence. Accordingly, he said, an accused person was presumed innocent and “retains the benefit of that presumption until it is displaced by proof of guilt”.

The first basis of challenge is without substance.

Mr Kimmins contended that the trial judge was obliged to give a direction in the form appearing in the joint judgment of Gaudron, Gummow, Kirby and Hayne JJ in Azzopardi at para 51

“It follows that if an accused does not give evidence at trial it will almost always be desirable for the judge to warn the jury that the accused’s silence in court is not evidence against the accused, does not constitute an admission by the accused, may not be used to fill gaps in the evidence tendered by the prosecution, and may not be used as a make-weight in assessing whether the prosecution has proved its case beyond reasonable doubt.”

Azzopardi entailed a consideration of s 20(2) of the Evidence Act 1995 (NSW) which provides that the judge or any party other than the prosecution may comment on the failure of the defendant to give evidence but unless the comment is made by another defendant

“... The comment must not suggest that the defendant failed to give evidence because the defendant was, or believed that he or she was, guilty of the offence concerned.”

The trial judge in that case had directed the jury as if a Weissensteiner type direction was called for when, as was found, it was a question whether the jury believed the complainant’s evidence. Mr Kimmins submitted that the observations in Azzopardi were made about the “general law” and were, therefore, applicable to directions given in Queensland.

The approach, legislatively, in the Australian States and Territories has been far from uniform about the competence and compellability of defendants in criminal trials and comment which may be made about a defendant’s failure to give evidence. This necessarily has led to differences in how a judge approaches the task of directing the jury on this matter. The legislation, in whatever form, has derived from what is generally described as the defendant’s “right to silence” but which was, in reality, its corollary, namely the right of a defendant to give sworn evidence. This is not the occasion to discuss the history of its emergence. It is analysed in McHugh J’s dissenting judgment in Azzopardi and discussed in two articles by Davies JA, The Prohibition Against Adverse Inferences From Silence: A Rule Without Reason? in (2000) 74 ALJ at 26 and 99 respectively. Both rely on recent important research by United States legal historians on the history of the privilege against self incrimination which has put the subject in a new and different light to that which had gone before particularly as discussed in Wigmore and Holdsworth*.* See, The Privilege Against Self-Incrimination: Its Origins and Development by R H Helmholz and others (Chicago) (1997) especially at 141 ff. See also J H Langbein, The Origins of Adversary Criminal Trial (Oxford) (2003).

In Queensland, after a series of legislative enactments permitting witnesses with an interest in the outcome and then parties in a civil suit to give sworn evidence, s 3 of the Criminal Law Amendment Act 1892 made a person charged with an indictable offence (and that person’s husband or wife) competent but not compellable to give sworn evidence. A limit was placed on cross-examination preventing questions the answers to which would tend to incriminate about any offence other than that charged. This did mean that a defendant could be cross-examined on his or her criminal record, the knowledge of which would weigh heavily against a defendant with juries. In other Australian jurisdictions cross-examination on character or criminal antecedents could only occur in limited circumstances by leave of the judge. In 1961, s 3 was re-enacted as s 618A of the Criminal Code but amended to limit the right to cross examine about character or previous convictions or charges only with the leave of the court in restricted circumstances. In 1977 that provision was relocated with minor variations into the new Evidence Act 1977 as ss 8 and 15.

When defendants secured the right to give sworn evidence in criminal trials there was concern that if a defendant did not avail him or herself of that entitlement a jury might draw an adverse inference since its members would know by comment from the prosecution or judge that he or she could have done so. This was exemplified in R v Kops (1893) 14 LR (NSW) 150; affirmed Kops v The Queen [1894] AC 650. The Privy Council decided that a judge had a right to comment on a defendant’s failure to give evidence. Their Lordships said at 653

“There may no doubt be cases in which it would not be expedient, or calculated to further the ends of justice, which undoubtedly regards the interests of the prisoner as much as the interests of the Crown, to call attention to the fact that the prisoner had not tendered himself as a witness, it being open to him either to tender himself, or not, as he pleases. But on the other hand there are cases in which it appears to their Lordships that such comments may be both legitimate and necessary.”

Windeyer J commented on that statement in Bridge v R (1964) 118 CLR 600 at 613

“That has remained the generally accepted expression of the law when comment by the judge on the failure of an accused person to give evidence is not expressly forbidden.”

Windeyer J noted that if comment is made which would seriously prejudice a trial the discretion to comment would not have been properly exercised and, therefore, might be reviewed.

After Kops strict limits were placed by legislation in NSW and elsewhere on the right to comment. However, unlike many other Australian jurisdictions, Queensland has never precluded comment legislatively either by the prosecution, the judge or both, on the failure of a defendant to give evidence.

The Criminal Code does, however, have a provision not found in the Australian common law jurisdictions requiring “the proper officer of the court”, invariably the judge, at the close of the prosecution case in front of the jury to ask the defendant whether the defendant intends to adduce evidence in his or her defence, s 618. Before 1971 when the right was abolished, a defendant would also be asked if the defendant wished to make an unsworn statement. Thus juries have been made aware in a formal way in Queensland almost as long as a defendant has been competent to give sworn evidence, that a defendant can give evidence in his or her own defence.

Leaving aside decisions from other jurisdictions where the legislature has restricted or prohibited mention of a defendant’s failure to give evidence, in Queensland, comment of a robust kind was regularly made. In R v Templeton [1922] St R Qd 165 the trial judge’s charge to the jury

“If you think that their silence may be the result of their being parties to the [criminal] proceedings, well you are not to blame if you do happen to arrive at a wrong conclusion ...”

was not such as to interfere with the verdicts of guilty. McCawley CJ giving the judgment of the Court of Criminal Appeal referred to Kops as supporting this conclusion.

Hart J in R v Phillips and Lawrence [1967] Qd R 237 commented at 294 that the trial judge’s comment in Templeton “could hardly be said to be fair”. This was because all of the four defendants had criminal records and their cross-examination, had they given evidence, would have been most damaging. Hart J noted at 294

“Despite this decision [Templeton], it has been the general practice in Queensland, though there have been exceptions, not to comment on the failure of a prisoner to give evidence. The unfairness was, I think, generally recognised.”

His Honour pointed out that once an accused person could give evidence and not be exposed without leave and in limited circumstances to cross-examination on his or her antecedents the basis for reluctance to give evidence was, to a large extent, removed. His Honour said at 295

“It seems to me that the Queensland legislature in 1961, when it enacted this section [s 618A] without any restriction whatsoever on the right to comment, deliberately opted to allow comment in a proper case. The legislature must have considered that there is nothing unfair or wrong in this and that the chances of an innocent man being deterred from giving evidence are somewhat remote. It must be taken to have intended that an accused person, who, for any reason tactical or otherwise, fails to enter the witness box should be liable to adverse comment. No intention was shewn to change the law as stated in R v Templeton & Ors ...

Now that the position has been clarified in Queensland, the rule should be that generally it is both legitimate and proper for the judge, if he sees fit, to comment on the failure of an accused person to give evidence.”

His Honour regarded the general provision in s 668E as protection for a defendant if comment went too far.

In R v Young [1969] Qd R 417 Lucas J, with whom Hoare J agreed, noted at 435 that it was within a trial judge’s discretion to comment on the failure of a defendant to give evidence and has the right to do so in an appropriate case, citing Hart J’s judgment in Phillips and Lawrence and dismissing the appeal. The trial judge had told the jury that the defendant, a woman charged with the unlawful killing of her infant child by not providing food and medical attention, was not obliged to give evidence and although there was prosecution evidence to support a guilty verdict the defendant had chosen to give no evidence contradicting the prosecution’s circumstantial case and that they could take this failure into account in considering their verdict.

In R v Whinfield CA No 132 of 1986, unreported decision of 16 September 1986, the Court of Criminal Appeal considered the appropriateness of a direction drawing attention to the defendant’s failure to give evidence in a criminal trial for indecent dealing with a girl under the age of 14 where evidence had been given by the complainant. Carter J, with whom the other members of the court, Andrews CJ and Macrossan J agreed, made clear that a direction, that it was “less unsafe to infer guilt than it otherwise would have been” from a failure of the defendant to give evidence, was only appropriate in the very limited circumstance of a circumstantial case where the prosecution evidence was such that a conviction could be sustained on that evidence.

In R v Fellowes & Ors [1987] 2 Qd R 606 the Court of Criminal Appeal clarified the circumstances which would permit a direction of the kind given in Whinfield. The Court held at 610-11

“It is clear that such a direction can be justified only where there are particular circumstances in the case which call for it. The most familiar example which may justify such a direction is the presentation of an entirely circumstantial case by prosecution in a situation where it may reasonably be inferred that the truth, whatever it may be, would be known to the accused, and where the accused neglects the opportunity to explain or place a different complexion upon the facts which the prosecution has presented. That was the position in R v Young above and in R v Hartas (CA 250 of 1981; Court of Criminal Appeal, 30 November 1981 unreported) the two cases in which such directions were upheld. Both cases were entirely circumstantial and it was readily apparent that knowledge of the relevant events or transactions was peculiarly within the knowledge of the accused.

We respectfully agree with the following analysis in R v Whinfield:

‘Both R v Young and R v Hartas amply illustrate the rule that where the truth is not easily ascertainable by the Crown and guilt remains an inference to be drawn from whatever facts the Crown is able to prove, it is proper to tell the jury that the inference may be more safely drawn from the facts proved if the accused elects not to give evidence of relevant facts which, it can easily be perceived, must be within his knowledge. But that is a very different situation from one in which the jury is told that guilt can be inferred from the mere fact of an election not to give evidence.’

The words which isolate the situation in which the R v Young direction is permissible have been italicised by us. Perhaps there are other instances in which the direction may be suitable, but they do not readily suggest themselves. By way of contrast, in the ordinary prosecution case which is proved by direct evidence, the Crown case should stand or fall on its own merits without any additional strength from the accused’s failure to enter the witness-box. In R v Whinfield the prosecution case depended largely upon the evidence of a young complainant. The trial judge saw the absence of another prosecution witness (whose statement was admitted in evidence under s 110A of the Justices Act 1886-1985) as a circumstance tending to justify the R v Young direction. This Court repudiated such a suggestion, observing:

‘If the direction were held to be proper in the circumstances of this case, it would follow that where direct evidence is given of the commission of an offence, the failure of the accused to give evidence can be taken into account by a jury who can thereby ‘infer guilt’, that is to infer guilt from the mere fact of a failure to give evidence. That in my view is not and never has been the law.’

Understanding of the danger to be guarded against may perhaps be made easier by commenting that the Crown must have a prima facie case before any inference of guilt may be drawn from the evidence given to support it and that in no circumstances may a gap in the case be closed by a failure on the part of an accused to give evidence; the question relates to weight which may be given to evidence in the Crown case. In a case where an accused has failed to give evidence there is nothing wrong in commenting that Crown evidence is uncontradicted but it is a substantially different matter to give a jury the impression that the failure has some probative effect of its own which may support an inference of guilt.”

At 612 the Court said

“The failure to support an alibi or the failure to go into the witness- box in order to deny presence at the scene is not a failure that can increase the intrinsic strength of the Crown case. It would afford a classical example of the Crown elevating its case by its own bootstraps if a Crown case could be strengthened by the accused’s failure to support an alibi or its equivalent.”

This appeal is not one in which the learned trial judge gave a Young type, or, as it is now identified, a Weissensteiner type direction and there is no need to pursue the appropriate form of such a direction further. The lengthy quotation from Fellowes illustrates the position in Queensland as it has been understood and practiced for many years. In Weissensteiner (1993) 178 CLR 217, a Queensland case, Mason CJ, Deane and Dawson JJ said at 229

“But when an accused elects to remain silent at trial, the silence cannot amount to an implied admission. The accused is entitled to take that course and it is not evidence of either guilt or innocence. That is why silence on the part of the accused at his or her trial cannot fill in any gaps in the prosecution case; it cannot be used as a make-weight. It is only when the failure of the accused to give evidence is a circumstance which may bear upon the probative value of the evidence which has been given and which the jury is required to consider, that they may take it into account, and they may take it into account only for the purpose of evaluating that evidence. The fact that the accused’s failure to give evidence may have this consequence is something which, no doubt, an accused should consider in determining whether to exercise the right to silence. That was recognised in Reg v Kops. But it is not to deny the right; it is merely to recognise that the jury cannot, and cannot be required to, shut their eyes to the consequences of exercising the right.”

In RPS v R (2000) 199 CLR 620, a case to which s 20(2) of the Evidence Act 1995 (NSW) applied, the majority, Gaudron CJ, Gummow, Kirby and Hayne JJ made observations at 630 about the proper direction to be given to a jury where a defendant fails to give evidence applicable in all jurisdictions.

“At the level of principle, those reasons [for finding the trial judge’s direction erroneous] centre on what is usually described as the ‘right to silence’. That expression is a useful shorthand description of a number of different rules that apply in the criminal law. But referring, without more, to the ‘right to silence’ is not always a safe basis for reasoning to a conclusion in a particular case; the use of the expression ‘right to silence’ may obscure the particular rule or principle that is being applied. What is presently significant is that a criminal trial is an accusatorial process in which the prosecution bears the onus of proving the guilt of the accused beyond reasonable doubt. In a trial of that kind, what significance can be attached to the fact that the accused does not give evidence?”

Their Honours concluded at 637,

“To attempt to instruct the jury about how they may reason towards a verdict of guilt (as distinct from warning the jury about impermissible forms of reasoning) leads only to difficulties of the kind that have arisen in the present case. Had the judge’s instructions about the significance of the appellant not giving evidence stopped at pointing out that he was not bound to do so, that there may have been many reasons why he did not do so (and the jury should not speculate about those reasons), and that it was for the prosecution to prove its case beyond reasonable doubt, and that the jury should draw no inference from the appellant not having given evidence, no complaint could be made.”

This leads to Azzopardi. The same judges were concerned to make general observations about certain principles applicable to all criminal trials irrespective of whether the jurisdiction in which they are held is subject to legislative prohibition or limitation on commenting upon a defendant’s failure to give evidence. Their Honours said at 65

“Nor would it be safe to assume that the repeal of legislative provisions prohibiting judges from commenting on the failure of an accused to testify automatically restored the common law as it stood on this subject nearby a century ago when such legislation was first enacted. In the intervening years the accusatorial character of the criminal trial has become deeply embedded in the common law of Australia, whatever that law might earlier have provided. Indeed, that character is one of the most important features of the criminal trial in contemporary Australia. Due account must be taken of that character in considering both what the common law now provides on the subject of judicial comment and legislation regulating it.”

However, if a judge makes no comment on the failure of the defendant to give evidence the jury may well use that silence to the defendant’s detriment. Their Honours therefore concluded that

“... it will almost always be desirable for the judge to warn the jury that the accused’s silence in court is not evidence against the accused, does not constitute an admission by the accused, may not be used to fill gaps in the evidence tendered by the prosecution, and may not be used as a make-weight in assessing whether the prosecution has proved its case beyond reasonable doubt.”

Notwithstanding, then, that Azzopardi concerned a jurisdiction which has legislative limits on the entitlement of a trial judge to comment on the failure of a defendant to give evidence their Honours have pronounced upon the matter for all jurisdictions in Australia, including Queensland. Recent Queensland decisions such as Fellowes and Whinfield demonstrate that the approach in Queensland has not been different.

But the High Court did not mandate any particular form of words. Their Honours spoke of the “desirability” “almost always” to cover certain things with the jury. Mr Kimmins referred the court to R v Macris [2004] NSW CCA 261, unreported decision of 3 August 2004, where the court applied strictly the observations in Azzopardi. The trial judge had not warned the jury that the defendant’s silence in court could not be used to fill gaps in the evidence of the prosecution or be used as a make-weight in assessing whether the prosecution had proved its case beyond reasonable doubt. No doubt the circumstance that the jury had asked the trial judge at the conclusion of addresses why the defendant had not been “put on the stand and questioned” dictated a fuller direction to the jury on the topic.

The Queensland Supreme and District Courts’ Bench Book reproduces precisely what was said at para 51 of Azzopardi as a desirable direction. The introduction to the Bench Book reminds readers that the notes are not intended “as an elaborate specification to be adopted religiously on every occasion. A summing up if it is to be helpful to the jury, should be tailored to fit the facts of the particular case ...” One might question how helpful to a jury is the expression “make-weight”. It is not in common use and has an unattractive flavour of antiquarianism about it. So long as the essential elements which must be conveyed to a jury, that is, that no adverse inference may be drawn from the defendant’s failure to give evidence, that the onus of proof lies upon the prosecution, that the defendant is presumed innocent until the prosecution adduces sufficient evidence to reach a conclusion of guilt beyond reasonable doubt and that the failure to give evidence does not strengthen the prosecution case or supply additional proof against a defendant or fill gaps in the evidence, then there is no error. In my view, the learned sentencing judge warned the jury in terms which were acceptable and sufficient to discharge that obligation.

The appellant otherwise complains that there has been a miscarriage of justice in that the verdicts of the jury are against the weight of the evidence and/or are unsafe and unsatisfactory and that no reasonable jury could be satisfied beyond reasonable doubt of the guilt of the appellant. The approach expressed in the joint judgment of Mason CJ, Deane, Dawson and Toohey JJ in M v The Queen (1994) 181 CLR 487 at 493, was affirmed in MFA v The Queen (2002) 213 CLR 606. Their Honours said

“Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.”

The appellant points to a collection of issues to support the contention that the jury’s verdicts are unsatisfactory, none of which are directed to the magazine count. The primary contention is that the medical evidence and the evidence of the highly unlikely, if not impossibility, of a connection between the appellant and the bloodstains on the child’s underpants would lead to a conclusion that someone other than the appellant was interfering with the child. I have dealt with that argument when considering the medical evidence.

The other criticisms of the strength of the evidence concern the lack of detail by the complainant child about what the appellant did to her, the child’s conduct seen on the interview video tape, the uncertainty about some of the mother’s evidence and what was said to be an “invention” by the grandmother when she realised the appellant could not have had access to the child at any relevant time to have caused the bloodstains so she said the stains were “old”. These were matters to which the jury was directed. They were well aware that the reliability and truthfulness of the child’s evidence were at the heart of the prosecution case. It was for them to weight the matters in respect of which complaint is made. The demeanour and answers of the complainant child on the interview video, her answers in cross-examination, particularly further cross-examination set out in these reasons together with the rest of the evidence was such that the jury could be satisfied beyond reasonable doubt that the appellant was guilty of both charges.

I would dismiss the appeal against conviction.

CULLINANE J: I have read and agree with the reasons for judgment of McPherson JA and White J in this matter. I agree that the appeal should be dismissed.