R v Haggag [1998] VSC 355; [1998] VICSC 130

PHILLIPS, C.J.: I have had the benefit of reading the judgment of Callaway, J.A. in draft form. I concur in the conclusions His Honour has reached and I would subscribe to his reasons therefor.

I certify that this is a true copy of the reasons for judgment of Phillips, C.J.

of the Court of Appeal (Phillips, C.J., Callaway, and Kenny, JJ.A.) of the Supreme Court of Victoria delivered 23 July, 1998.

CALLAWAY, J.A.: The applicant, who is now aged 21, pleaded not guily in the County Court to a presentment containing five counts, one of which was an alternative. There were two trials. The jury were unable to agree at the first trial and were discharged. At the conclusion of the second trial the applicant was found guilty on one count of theft, one count of attempted armed robbery, one count of intentionally causing injury and one count of armed robbery. After hearing a plea for leniency on his behalf, the learned trial judge sentenced him to terms of imprisonment and gave directions for cumulation that resulted in a total effective sentence of four years and nine months' imprisonment. His Honour fixed a non-parole period of two years and nine months and made forfeiture orders sought by the Crown. There is no application for leave to appeal against sentence. The applicant applies for leave to appeal against conviction on two grounds, which were substituted by order of the Registrar made on 27th March 1998. They are, first, that a miscarriage of justice resulted from the prosecutor's being permitted to submit to the jury that the applicant had the "motive of self-survival" in giving evidence; and, secondly, that the trial judge erred in his directions to the jury in that his Honour failed to direct them, sufficiently or at all, that they ought not to evaluate the applicant's evidence upon the basis that he had the "motive of self-survival".

It will be apparent that little need be said of the facts in order to understand those grounds, but I shall outline the case that the jury accepted. In the very early hours of Saturday 5th August 1995 the applicant stole a Holden station wagon, which was subsequently used in the attempted armed robbery and the armed robbery referred to in the presentment. The attempted armed robbery was committed at the Hallam newsagency at approximately 3.30 a.m. Mr. Leslie Lamont had just opened the newsagency when he was confronted by one offender and then a second offender, both of whom were wearing makeshift balaclavas and carrying rifles. The applicant was one of them. The other has not been identified. Money was demanded from Mr. Lamont, who was manhandled to a position face down on the floor. He was menaced with the rifles, which were unloaded, but that was not known to him. His face was pushed into the carpet and he was told not to look at the robbers. When he did endeavour to steal a glance at them, he was kicked in the face and suffered injuries, including substantial cuts to the lip and fractures of his teeth. His neck was also affected. Drawers were pulled out of the cash registers and the premises were searched. Eventually the offenders concluded that there was no money to be stolen. The telephone was ripped from its connections and they fled in the stolen vehicle. The applicant picked up his own motor car and drove home.

The general store at Narre Warren opened at 7.30 a.m. Approximately ten minutes later the applicant and his accomplice arrived in the stolen vehicle, again wearing balaclavas and carrying unloaded firearms. They held up Mr. David Bailey as he was opening the petrol bowsers at the front of the premises. He decided to co-operate, preceded the offenders into the store and opened the cash registers. He unlocked the safe and withdrew two plastic boxes containing cash. Ms Simone Ellis was also in attendance at the store. She was ordered to the floor and warned not to look at the robbers. The two men escaped with a sum of money which could not be precisely identified, having warned the occupants not to contact the police.

The applicant was arrested by investigating detectives just after midnight on Wednesday 13th September 1995 shortly after they had executed a search warrant at his parents' home. He was handcuffed and taken to an address in Dandenong. There two of the detectives executed another search warrant. He was then taken to Dandenong Police Station, where two of the detectives went into the building and took part in a debriefing. The applicant remained outside in the police car with the informant, to whom he made what the learned judge described as "a short but cogent confession" of his part in the attempted armed robbery at Hallam, the theft of the station wagon and the armed robbery at Narre Warren. He refused to name his accomplice. A comprehensive recorded interview was later conducted, during which the applicant confirmed the admissions that he had earlier made and described each of the offences in greater detail.

The confessions were an essential part of the Crown case. The applicant gave sworn evidence at the trial, in the course of which he denied that the first confession had been made and claimed that the second was a consequence of intimidation by the investigating detectives and was false.

Mr. Priest, who appeared for the applicant before us, did not argue the first ground. He concentrated his fire on the following passage in the learned judge's charge:

"There used to be an old song, 'It ain't what you do, it's the way that you do it', but in this case sometimes you judge it perhaps, 'it ain't what is said, it's the way people say it' and so you will ask yourselves the question: Is the witness open and frank? Did the witness appear to be furtive and hesitant? You are in the best position to make those judgments. It is suggested on behalf of the accused that the police witnesses have a motive for giving the evidence that they give to protect a situation in which it is alleged that they acted lawfully [sic] and Mr McLoughlin refers to them as three hard men looking for a result and so he put that to you in his final address. You will consider any motive that you might consider that a witness has to give a testimony, which that witness gives and whether that motive affects the testimony. On the other hand, it is alleged that the accused has a motive to give his evidence and that motive is the motive of self-survival and I shall discuss with you the course taken by the accused in more detail shortly." (Emphasis added.)

It was submitted that that constituted a direction, or at all events a judicial invitation, of the kind prohibited by Robinson v. The Queen [1991] HCA 38; (1991) 180 C.L.R. 531, as that decision has been understood in subsequent cases. (It was reported as Robinson v. The Queen [No. 2] in [1991] HCA 38; 65 A.L.J.R. 644 prior to its inclusion in the authorized reports.) The authorities, which are numerous, are discussed by Mr. Gans in a recent article in (1997) 21 Crim.L.J. 273.

In Robinson's Case the trial judge had directed the jury that "you might think ... that the accused had the greatest interest of all the witnesses ... and that, therefore, you should scrutinize his evidence closely". The High Court held that that direction and other observations in the course of the charge amounted to saying that the appellant's evidence had to be scrutinized more carefully than the evidence of any other witness, including the complainant, for no reason other than that he was the accused. As their Honours said, the unfairness of such a direction was manifest. It discriminated against the appellant by putting him in much the same class as a suspect or tainted witness. Cf. Director of Public Prosecutions v. Faure [1993] VicRp 87; [1993] 2 V.R. 497.

"Furthermore, his Honour's directions on the point do not sit well with the presumption of innocence which is the consequence of a plea of not guilty. If that presumption is to have any real effect in a criminal trial, the jury must act on the basis that the accused is presumed innocent of the acts which are the subject of the indictment until they are satisfied beyond reasonable doubt that he or she is guilty of those acts. To hold that, despite the plea of not guilty, any evidence of the accused denying those acts is to be the subject of close scrutiny because of his or her interest in the outcome of the case is to undermine the benefit which that presumption gives to an accused person.

Nothing in the above is intended to suggest that the evidence of an accused person is not subject to the tests which are generally applicable to witnesses in a criminal trial. Thus, in examining the evidence of a witness in a criminal trial - including the evidence of the accused - the jury is entitled to consider whether some particular interest or purpose of the witness will be served or promoted in giving evidence in the proceedings. But to direct a jury that they should evaluate evidence on the basis of the interest of witnesses in the outcome of the case is to strike at the notion of a fair trial for an accused person. Except in the most exceptional case, such a direction inevitably disadvantages the evidence of the accused when it is in conflict with the evidence for the Crown."

That passage is also premised on discrimination. To subject the evidence of the accused to close scrutiny is to approach it with greater caution than the evidence of ordinary witnesses. (I say "ordinary witnesses", for there may be witnesses in the case whose evidence does require such scrutiny. Examples were given in Robinson's Case at p.535.) Similarly, the concern expressed by their Honours in the last two sentences is that even a general direction about the interest of witnesses in the outcome of the case is likely to have the effect of discriminating against the accused. The jury are entitled to consider whether some particular interest or purpose of the accused will be served or promoted in giving evidence, but not his or her interest in the outcome of the case because he or she is the accused.

Robinson's Case was considered by this Court in R. v. Osland (1997) 95 A.Crim.R. 479, in which special leave to appeal has been granted. We were informed by counsel that the grant of special leave included the Robinson point. The appeal has since been heard and judgment is reserved. This Court held that the question to be asked was whether the charge in that case, read as a whole, may have conveyed to the jury the meaning that the evidence of Mrs. Osland and her co-accused was to be scrutinized more carefully than that of other witnesses. That question was answered in the negative because the burden of the charge about how to evaluate their evidence was that the jury should treat it in the same way as they would treat the evidence of other witnesses. Stafford v. The Queen (1993) 67 A.L.J.R. 510 was referred to, but Ramey v. The Queen (1994) 68 A.L.J.R. 917 was not cited to the Court. As we shall see, the learned trial judge in the present case told the jury to bear in mind that the accused might be under greater pressure than any other witness because he was facing serious charges but his Honour did not suggest that, subject to that qualification, they should treat his evidence as they would treat the evidence of other witnesses.

In both Stafford v. The Queen and Ramey v. The Queen special leave was refused, so what was said about Robinson's Case did not form part of the ratio decidendi, which is expressed in the second-last paragraph of Stafford's Case and the second-last sentence of Ramey's Case. I am conscious, too, of our duty to be cautious in applying observations made in the course of refusing special leave: see North Ganalanja Aboriginal Corporation v. Queensland [1996] HCA 2; (1996) 185 C.L.R. 595 at p.643 and compare X v. Director of Public Prosecutions [1995] VICSC 195; [1995] 2 V.R. 622 at p.626, lines 40 to 46 and R. v. Tsiaras [1996] VicRp 26; [1996] 1 V.R. 398 at p.399, lines 40 to 43. But it is perfectly clear that on each occasion the High Court intended to give firm guidance concerning the application of Robinson's Case.

In Stafford v. The Queen the judgment of the Court was delivered by Deane, J., who said:

"It follows from the decision of this Court in Robinson v The Queen ... that a trial judge should not direct the jury that the 'interest' of an accused in the outcome of his or her trial is a 'factor' to be taken into account in assessing his or her evidence. Nor should a trial judge direct the jury to the effect that, in assessing the evidence of all the witnesses, they should take account of their relative interests in the outcome. Any direction which directly or indirectly requires or invites an assessment of the reliability of the evidence of the accused or the relative reliability of the evidence of the accused and other witnesses by reference to interest or lack of interest in the outcome of the trial is likely to be understood by the jury as a direction or invitation to discount the evidence of the accused who will inevitably be seen as having a greater interest in the outcome of the trial than any other witness. That is what the decision in Robinson was directed against." (Emphasis added.)

The judgment of the Court in Ramey v. The Queen, delivered by Brennan, J., was as follows:

"There can, and should, be no mistake as to the application of the principle laid down by this Court in Robinson v The Queen [No. 2] ... . It is not to be eroded by Courts of Criminal Appeal nor, a fortiori, by trial judges by failing faithfully to apply the prohibition against the giving of a direction to evaluate the evidence of an accused on the basis of the accused's interest in the outcome of the case. That said, having examined the terms of the summing up challenged in this case, we do not think that the judge's language raises the problem with sufficient clarity to make it a suitable vehicle for reaffirming the rigour of the principle established by the judgment in Robinson v. The Queen. Accordingly special leave will be refused." (Emphasis added.)

Three points emerge from those judgments. The first is that, when one speaks of evaluating the evidence of an accused person "on the basis of" his or her interest in the outcome of the case, as in Robinson's Case itself at p.536 and in Ramey's Case in the judgment set out above, that does not mean solely or even mainly on that basis. A trial judge should not direct the jury that the interest of the accused in the outcome of the trial is even a factor to be taken into account in assessing his or her evidence. The second is that the prohibition is not confined to directions in the sense of injunctions to the jury that they must, or must not, do something. It extends to an invitation by the judge to assess the reliability of the evidence of the accused, or the relative reliability of his or her evidence and that of other witnesses, by reference to interest or lack of interest in the outcome of the trial. The third is that Robinson's Case does not depend on its unusual facts but stands for a rigorous principle to be faithfully applied.

It is unnecessary to decide whether the rationale of the prohibition against a direction, including a judicial invitation, to evaluate the evidence of an accused person in the light of his or her interest in the outcome of the trial is that it discriminates against the accused or that it undermines the presumption of innocence. They may be complementary rationales, each deriving from the unique position of the accused at a criminal trial. It is sufficient in the present case to concentrate on the presumption of innocence, to which express reference was made in the joint judgment in Robinson's Case and which Mr. Gans understands as the foundation of the rule. That is consistent with its formulation in both Stafford v. The Queen and Ramey v. The Queen and it is the way in which Mr. Priest argued the case.

Approaching the matter in that way, there is a distinction between two quite different suggestions that might be made to a jury. The first suggestion is that, if the accused is guilty, he or she has a motive to lie. That does not assume that the accused is guilty. It simply makes one of the points that is made in the conventional comment that, whilst there is really no more that an innocent person can do than give sworn evidence and submit to cross-examination, a guilty person may choose to brazen it out in the witness box. The second, quite different, suggestion is that the accused has a motive to lie in order to secure an acquittal. Cf. R. v. McKellin (unreported, Court of Appeal, 19th December 1997) at pp.8-10. That undermines the presumption of innocence, because it assumes that the accused person is guilty: apart from exceptional cases, if he or she is not guilty, there is no motive to lie. It also invites the jury to engage in circular reasoning: (a) assume sub silentio that the accused is guilty; (b) use that assumption to discount his or her evidence; and (c) having discounted that evidence, find that the accused is guilty.

At the hearing of the application for leave to appeal it was assumed that the prosecutor had alleged that the applicant had a motive to give his evidence, that that was the motive described by his Honour as "the motive of self-survival" and that the allegation was to be found in the prosecutor's final address. The Court directed that that address be transcribed, that it be made available to the Court and counsel and that the parties have the opportunity to make supplementary submissions arising from the transcript if they wished to do so. It transpired that the prosecutor did not suggest that the accused had any motive to give his evidence. The main point made in his address was that the jury should accept the evidence of the confessions and in particular the record of interview. It was impressed upon them that the burden of proof lay on the Crown and that the applicant did not have to prove his innocence. As to his having given evidence the prosecutor said, "But in this case the accused man has given evidence and has participated in a record of interview and even though he doesn't have to give evidence you are entitled, because he has done so, you are entitled to scrutinize it as you do with all the other witnesses." (Emphasis added.) It has not been submitted that a foundation for his Honour's reference to "the motive of self-survival" can be found elsewhere in the transcript. In his supplementary submissions Mr. Priest accepts that the point came from the judge but contends that that gave it even greater authority.

How then would the jury have understood the last sentence of the impugned passage in the charge? Mr. Gyorffy, who appeared for the respondent, submitted that it may have meant that it was alleged that the applicant had changed his story "because of a fear of serious physical injury being inflicted by accomplices who were implicated by him in his confession to police". I do not think that that is at all likely. The applicant was not cross-examined to that effect and, as I have already mentioned, he refused to identify his co-offender. The obvious meaning, in the context of this trial, is that the applicant had confessed, the confessions had been admitted into evidence and the only practical way to overcome that difficulty was to go into the witness box. In cross-examination the applicant had been asked:

"And you realized, I suggest to you, that you had made a colossal mistake in confessing to these crimes?---I would agree that the whole thing was a mistake, yeah.

Without that confession you realized you wouldn't have even been charged; you agree with that?---I wasn't hundred percent on that, I would't agree on that.

That is the reason we are here today because you are trying to get out of your confession by alleging it is false?---That is your opinion.

Yes, what do you say to that?---No, it's not true."

The motive of "self-survival" is self-preservation or, possibly, himself (in the Irish sense) surviving the confessional evidence.

In developing his submission that the impugned passage amounted to a direction or judicial invitation of the prohibited kind, Mr. Priest drew attention to the fact that it formed part of the section of the charge in which the learned judge instructed the jury about the evaluation of evidence. His Honour said, for example, "In respect of each witness, you ask yourself was the witness credible, did you believe him or her, was he or she entitled to be treated as a witness of credibility." Later he said, "You will observe the demeanour of the witness as the witness gives his or her evidence. Sometimes tribunals of fact can get real insights into these matters by reference to the demeanour of witnesses. It is not just what the witness says, it is the manner in which the witness says it." The sentence "You will consider any motive that you might consider that a witness has to give a testimony, which that witness gives and whether that motive affects the testimony" was similarly couched as an instruction, by which the jury would have understood themselves to be bound. At the very least, counsel said, it was an invitation to them to engage in a particular form of reasoning and it was not limited to witnesses other than the accused. Turning to the last sentence in the relevant passage, Mr. Priest submitted that it did not refer only to the applicant's motive to go into the witness box but to his motive to give the evidence that he did. Moreover, the applicant's alleged motive was being likened to that of the police witnesses, thereby reinforcing the impression that the direction or invitation to consider a witness's motive extended to him.

His Honour dealt with the applicant's election to give evidence as follows:

"I want to discuss with you shortly, the course that was taken by the accused man at this trial. He gave evidence on oath and you have been correctly told that he was not required to take that course. By giving evidence on oath, he has entered into the witness box, he has taken the oath and he has pledged his oath to the testimony which he gave before you and has submitted himself to cross-examination, the cross-examination of an experienced and skilful prosecutor ... .

At all events, the fact is that the accused man submitted himself to cross-examination, took the oath and pledged his oath to his testimony. That was one of two courses that he could have taken. He could [have] remained mute, stayed mute and that is the other course he could have taken. He could have stayed where he is in the court room and not said one word. If he had taken that course, neither the prosecutor, Mr. Sargent nor myself, as the trial judge, could have made any comment whatsoever about him taking that course. That course derives from the proposition you see, that in a trial such as this, the onus of proof remains on the Crown from beginning to end.

The considerations which apply to the course taken by the accused, however, the Crown might argue that that is something that a guilty man might well do. A guilty man might reason, 'Well, I will go into the witness box, I will pledge my oath to my testimony, I will brazen it out, as it were and my sworn evidence will make it more difficult for the jury to bring in a verdict of guilty against me in respect of any of these counts.' On the other hand, the defence says, 'What more can an innocent man do?' 'I maintain my innocence and I have gone into the witness box and I have pledged my oath to my testimony and I have sworn that the admissions which are attributed to me and which I made, are in fact fictitious and not true admissions. And you, the jury should not be satisfied beyond reasonable doubt that the admissions made by me in that recorded interview are true but rather they were admissions which were procured by intimidation, brought to bear on me by the investigating detectives and by the rehearsal which they conducted with me about offences in which I had no part whatsoever and by a rehearsal, which was of itself the product of the very intimidation which was placed on me.' The accused has entered in the witness box and he has pledged his oath to his testimony and that is the argument which is presented on his part.

You will weigh those competing considerations when you are dealing with this case and in particular, when you are dealing with the evidence of the accused. You will bear in mind that an accused may be under greater pressure than any other witness in the court room because after all, he is facing serious charges and you will remember that by going into the witness box, he does not assume any burden of proof. He does not undertake a burden of proof which remains at all times on the prosecution." (Emphasis added.)

Reference was again made to the applicant's election to give evidence when his Honour summarized the defence case, but nothing turns on that part of the charge.

Mr. Priest submitted that there were elements of the direction set out above which, in the context of this case, tended to reinforce the direction or invitation to evaluate the applicant's testimony in the light of the "motive of self-survival". The first was the omission to which I have already referred. Ordinarily it is to the advantage of the accused for the jury to be invited to treat him in the same way as other witnesses but to be mindful that he may be under greater pressure because he is facing serious charges. It was submitted that to refer only to the fact that the accused may be under greater pressure would have had the unintended, but adverse, effect of reminding the jury of the alleged "motive of self-survival". The second was that his Honour said, in the usual way, that "the Crown might argue that [giving sworn evidence] is something that a guilty man might well do. A guilty man might reason, 'Well, I will go into the witness box, I will pledge my oath to my testimony, I will brazen it out, as it were and my sworn evidence will make it more difficult for the jury to bring in a verdict of guilty against me in respect of any of these counts.'" In the context of this case, it was submitted that that did nothing to dispel, and may well have reinforced, the prohibited direction or judicial invitation earlier in the charge.

Mr. Priest was correct in submitting that the impugned passage formed part of the section of the charge in which the learned judge instructed the jury about the evaluation of evidence. Indeed it is in the middle of that section of the charge, and the jury had been told that they were bound by his Honour's directions on matters of law. Whether or not they would have understood the sentence "You will consider any motive that you might consider that a witness has ... and whether that motive affects the testimony" as falling within that category, at the very least it constituted an invitation for them to take a witness's motive into account in evaluating the witness's testimony. It is unfortunate, therefore, that it should have been immediately followed by a reference to the applicant's allegedly having a motive to give his evidence, especially as the motive ascribed to the police witnesses amounted to their also having an interest in the outcome of the case ("three hard men looking for a result"); but there are two important points to notice.

The first is that the judge did not say that the accused had (or even that he may have had) a motive to give his evidence but only that it was alleged, sc. by the Crown, that he had such a motive. The nature of the allegation is apparent from the segment of the cross-examination set out earlier. The jury were not being invited to discount the evidence of the applicant because he was the accused. The point was simply that, according to the prosecution, he had confessed to these offences and the only way he could overcome that was to go into the witness box. The same comment could be made about an innocent person in his position. In the words of the Full Court in R. v. Silk (unreported, 22nd September 1993) at p.30, it was "something which, in any event, must have been quite obvious to any moderately intelligent human being". Even if the last sentence of the impugned passage is linked to the rest of it, rather than introducing a different topic, it does not constitute a misdirection when the reference to the "motive of self-survival" is understood.

The second is that nothing more was said about the applicant's having given evidence in that section of the charge. The jury were told that they would be instructed later with respect to "the course taken by the accused". They were subsequently so instructed and the relevant portion of the charge began, appropriately, with the words "I want to discuss with you shortly, the course that was taken by the accused man at this trial". In those circumstances there is much to be said for the view that, listening to the charge as a whole, the jury would have understood his Honour not as saying that the applicant's "motive of self-survival" was comparable with the motive ascribed to the police witnesses but rather that his having elected to give evidence was a discrete topic that would be dealt with later. When it was dealt with, it was dealt with in conventional terms except for the omission to which reference has been made. I do not think that that omission converted what was said into an unfavourable direction or that the jury would have connected the reference to "greater pressure" with the earlier reference to "self-survival". They may have linked the reference to the motive that a guilty man might have to go into the witness box to the alleged motive of "self-survival"; but, if so, it was now explained as an argument by the Crown to be weighed against a counter-argument by the defence about the significance of the applicant's election to give evidence.

The jury would not have taken his Honour's words in the sense prohibited by Robinson's Case. If there is any doubt about that when the charge is read in isolation, it is dispelled when one recalls the questions the applicant was asked in cross-examination and the terms of the prosecutor's address, in which the Crown itself had suggested that the jury treat the applicant in the same way as all the other witnesses. A charge may be read in the light of the addresses: see R. v. Tikos (No. 2) [1963] VicRp 45; [1963] V.R. 306 at pp.308-309, R. v. Yates [1970] S.A.S.R. 302 at p.306 and R. v. Zampaglione (1981) 6 A.Crim.R. 287 at p.304. The presumption of innocence was not undermined either by the prosecutor's address or by the charge. I would add that no exception was taken, so counsel perceived no vice in the charge at the time it was given.

I certify that this and the preceding 12 pages are a true copy of the reasons for judgment of Callaway, J.A. of the Court of Appeal (Phillips, C.J., Callaway and Kenny, JJ.A.) of the Supreme Court of Victoria delivered on 23rd July 1998.

KENNY, J.A.: I have had the advantage of reading in draft the reasons for judgment prepared by Callaway, J.A. I concur with his Honour's reasons for judgment. I agree that the application should be dismissed.

I certify that this page is a true copy of the reasons for judgment of Kenny, J.A. of the Court of Appeal (Phillips, C.J., Callaway and Kenny, JJ.A.) of the Supreme Court of Victoria delivered on 23 July 1998.