ADELAIDE, 20 February 1998 (hearing) 20 March 1998 (decision)

In my opinion this appeal should be allowed, the appellant's conviction should be set aside, and a retrial should be ordered.

I agree with the substance of what Olsson J has said in his reasons. I wish to add some brief remarks on two matters only. There is no need for me to repeat the facts, which are comprehensively set out in the reasons of Olsson J. The grounds of appeal are also set out there.

In my opinion the general direction given about lies was adequate, as a matter of law. But the later treatment of the particular lies in question was inadequate. Divorced as it was from the general direction, there was a risk that the jury might not recall the cautionary aspects of the general direction about lies. The failure to remind the jury of the possible explanations for the lies, explanations that were not consistent with guilt, is a particular cause for concern. In my opinion, in this case, there was a need to emphasise the need to give careful consideration to the other possible explanations for the lies, and to emphasise the need to be cautious in drawing an adverse inference from the lies in question. I say that because, in my opinion, the relevant lies were either "intractably neutral" (cf R v Power & Power [1996] SASC 5653; (1996) 87 A Crim R 407 at 409) or, if capable of supporting an inference of guilt, they could do so only subject to very careful warnings to the jury. I must say that, like Olsson J, I incline to the view that the lies in question should not have been left to the jury at all as possible evidence of intent, but simply as evidence consistent with the prosecution case. It suffices to say that if they were to be left, a much clearer warning should have been given.

I consider that the inadequacy of the warning given, and the emphasis given to the lies in question, gives rise to a real risk of a miscarriage of justice.

When one puts the lies in context in the present case, and bears in mind that the attempt here was to use them in proof of an intent to endanger life, the difficulty of drawing the necessary inference is immediately apparent. The explanation offered for the earlier false statements to the police is both obvious and plausible, and it is not an explanation that assists the drawing of an inference in relation to intent. As well, in my opinion, trial judges are likely to be assisted by going through the exercise of precisely identifying for the jury the lie in question, and the suggested admission against interest or inference of guilt that the prosecutor suggests should be drawn from the lie. Doing so will either expose the difficulty in the way of the prosecutor's submission, or make it easy to guide the jury with an appropriate direction about the use of the lie.

In the present case the trial judge identified the lies quite accurately, but did not assist the jury by explaining how that lie might or might not give rise to the inference that the prosecution suggested should be drawn. Had that been done in specific terms, I think it likely that the difficulty of drawing the inference would have been immediately apparent. The judge might then have directed the jury that it would be unwise to act upon the prosecution's submission, or at least might have been moved to add a number of cautionary remarks about the process of drawing the necessary inference.

I agree with Olsson J that, in this respect, the trial miscarried. The matter of lies received significant emphasis in the summing up. I am not able to say that this is something that could not have affected the jury's verdict.

It is convenient under this heading to deal with grounds 2, 3 and 4.

I agree with Olsson J that the case was one in which the trial judge was at liberty to give the jury a direction relating to the failure of the accused to give evidence at the trial.

In Weissensteiner v The Queen [1993] HCA 65; (1993) 178 CLR 217 the High Court dealt at some length with the circumstances in which a jury might be directed that they could take into account, adversely to an accused, the failure of the accused to give evidence at trial.

I refer in particular to the principles stated by Mason CJ, Deane J and Dawson J at 227-9, and by Brennan J and Toohey J at 235-6. This is not the occasion to examine those principles in detail. They are a mix of common sense and basic legal principles relating to the trial process. They are not easily reduced to abstract principles or to hard and fast rules.

In the present case there were various items of circumstantial evidence capable of supporting the inference that the accused must have known that White was in the house when the shot was fired, and that he was standing by the window through which the shot was fired. If that inference were drawn, it was capable of supporting the further inference that the accused intended to endanger White's life, or was recklessly indifferent as to the endangering of White's life.

The accused did not give evidence. There was, therefore, no explanation in evidence from him for the facts that might support the primary inference. There was no evidence from him to answer the further inference that might be drawn from the primary inference. These were matters peculiarly within his own knowledge. Accordingly, doubts about the drawing of the relevant inferences from those facts might be discounted, in the light of the absence of evidence from the accused: see Weissensteiner (supra) at 227-8.

The majority judgments in Weissensteiner (supra) do not support the view that a direction to this effect is not permissible simply because, in the course of being interviewed by the police, the relevant interviews having been proved by the prosecution, the accused gave exculpatory answers dealing with some of the facts from which an inference might be drawn, and denying any intent to endanger life. The judgments of the majority are expressed in terms of a failure on the part of the accused to give evidence, not in terms of the absence of any explanation emanating from the accused. I acknowledge that Gaudron J and McHugh J (at 245) referred to the fact that an explanation that might be expected to be forthcoming could be offered without the giving of evidence, and referred to a situation in which the explanation was advanced when the person concerned was confronted with the facts. However, as I read the majority judgments that limitation is not to be found in them.

I am cautious about stating principles in absolute terms, when the relevant principles are, as I have already said, a mix of common sense and fundamental principle, and are to be applied very much in the context of a particular case. There is a danger in attempting to formulate abstract or universal propositions in this area. There may be a rare case in which an explanation advanced by an accused person before the trial, or some aspect of the evidence given during a trial, might make it inappropriate to comment upon the failure of the accused to give evidence at the trial. Be that as it may, in my opinion it was open to the judge, in the present case, to inform the jury that the absence of evidence from the accused might cause them to draw an inference that the accused intended to endanger life or was recklessly indifferent to the danger of doing so.

However, unlike Olsson J, I consider that the summing up unduly emphasised the failure of the accused to give evidence. Olsson J has set out most of the relevant part of the summing up. The treatment of this topic occupied some four pages in a summing up which amounted in all to just over 21 pages. The fact that this topic occupied a significant part of the summing up is likely to have unduly emphasised its importance to the jury. Some of what the judge said to the jury is extracted, almost in terms, from the judgment of Mason CJ, Deane J and Dawson J in Weissensteiner v The Queen (supra). It is no criticism of their Honours to suggest that an attempt should be made to explain the relevant concepts to the jury in simpler language, using more everyday terms than are used in judgments of the High Court. I am conscious of the fact that it is easy, with the benefit of the time available to a judge sitting on appeal, to be critical of a summing up that is prepared on the run during a trial. However, in this case I am left with a firm impression that too much was made of the issue, that the relevant portion of the summing up should have been kept shorter, and that the summing up should have been tied more closely to the particular facts of the case.

I consider that if the direction were to be given, it would have sufficed to remind the jury that in every case the prosecution must prove its case beyond reasonable doubt, that it is a right of every accused not to give evidence, that the failure of the accused to give evidence cannot fill gaps in the prosecution case, but that on the issue of intent in this case there were facts (which should be identified briefly) from which an inference might be drawn that the accused knew that White was in the house, knew he was near the window and had the relevant intent. It could then be said that if the jury were inclined to draw the relevant inferences from those facts, bearing in mind that this was circumstantial evidence and that the inferences should not be drawn unless they were the only inferences reasonably open on the evidence, the absence of any sworn evidence from the accused relating to the relevant facts, and about his state of mind, might make it easier for them to draw the inferences. This is not put forward as a text to be followed, but more as an indication of the approach to be taken.

In that context it would be appropriate to tell the jury that although there was no sworn evidence from the accused on these matters, the jury had before them his answers to the police in the record of interview that was proved before them, and that they could give such weight (if any) as they saw fit to those answers, bearing in mind that they did not have the opportunity to observe the accused giving evidence or to hear his explanation tested by cross examination.

I would hope that, approaching the matter on those lines, the failure of the accused to give evidence could have been dealt with more briefly than it was.

In any event I would uphold ground 4 of the grounds of appeal on the basis that, in the particular circumstances of this case, undue emphasis was given to the failure of the accused to give evidence.

For those reasons I agree that the appeal should be allowed, the conviction set aside and a retrial ordered.

I agree with the order proposed by the Chief Justice for the reasons that he has given.

This is an appeal against the conviction of the appellant, by a majority verdict of a jury, of the crime of endangering life.

It was not, ultimately, in dispute that, on 28 March 1997 at Goolwa, the appellant, in company with one Vaughan, went to house premises at 26 Foster Place, Goolwa, one of the occupants of which was a man called White. At trial it was common ground that the appellant was, at the time, armed with a cut down .22 calibre semi automatic rifle. It was also not disputed that, because he was angry with White for allegedly having 'ripped off' some marijuana plants which were being cultivated by the appellant, he discharged three shots from the rifle at the house in which White was staying.

The Crown case really focused on one of those three shots, which was fired through a rear window of the house. Two others were fired at and struck the rear door of the house. White professed not to have been conscious of the firing of those two shots. One possible explanation is that the two shots in question caused loud bangs on the back door which awakened him, although the appellant contended to police officers, in the course of his third record of interview, that these were the last shots fired, rather than the first.

White gave evidence that, at about 10.00 am on the morning in question, he was asleep in the lounge room. He testified that he was awakened by two or three loud bangs, as if someone was trying to kick the back door in.

He testified that he got up, called out to his brother in another room, went to the rear lounge window, pulled the curtain back slightly at one end of the window and looked out to see who was making the noise. He saw two persons in the backyard, near the clothesline. They were wearing black balaclavas and one of them - admittedly the appellant

• was holding a firearm in his hand.

White told the jury that he was standing at one side of the window and called out something like "What are you doing?" or What the fuck's going on?"

• whereupon the appellant fired the gun at the window, spraying White with shattered glass as he jumped out of the way. At the time his body would - he said - have been visible from about the waist up. White correctly identified the two persons in the backyard as the appellant and Vaughan, notwithstanding that they had attempted to disguise their faces. The appellant told the police that he was aware that White normally slept in the room in which the window shot at was located.

White's brother immediately telephoned the police. The whole incident had developed over the space of a very short period of time.

The jury had before it a series of photographs which assisted them to appreciate the evidence given. Inter alia, these disclosed that:-

* the relevant house property was of prefabricated construction, similar to some transportable type homes. The walls appear to be made of some form of weatherboard, or pseudo-weatherboard construction,

* the location where the appellant was standing when the rifle was discharged was very close to the rear wall of the house - probably no more than 4-5 metres distant, at most,

* the rear window of the room in which White was sleeping was totally covered, on the inside, by what appear to be ceiling to floor curtain drapes which pull sideways on an overhead track,

* on White's evidence, if, as he said, he moved the right hand end of the curtains back a short distance to look out, such a movement must, as a matter of common sense, plainly have been obvious to any person a short distance away, looking at the window from the outside at the time,

* photographs 9 and 12 of the bundle tendered graphically illustrate that the bullet entry hole is located in the lower portion of the right hand end of the window (as one views it from the rear yard of the premises),very close to that end and almost in a vertical line hard adjacent to the location where White says that the end of the curtain was moved when he looked out. Indeed, if he was standing where he described, he was extremely lucky not to have been struck by the projectile itself.

* White's Datsun motorcar was parked in the rear yard of the house several metres to the rear of the clothes line structure. It, too, was not far from the rear wall of the house.

* as appears from photograph 15 three pairs of footwear are lined up on the steps leading into the rear door of the house (not far from the window to which reference has already been made). These are plainly visible from the location in which the shot was fired. They give the appearance of having been left out there by persons who have entered the house.

At trial it was not disputed that the appellant fired the bullet through the window. The real issue was whether the Crown had proved beyond reasonable doubt that the bullet was fired with the specific intent to endanger White's life, or whether the appellant was recklessly indifferent, when he discharged the rifle, as to whether White's life was endangered or not.

The appellant and Vaughan were tried together, it being contended that they had embarked upon a common purpose to do what was actually done. Both elected not to give evidence. The Crown case as to the relevant state of the appellant's mind was therefore based on circumstantial evidence - the inferences said, naturally, to flow from what the appellant did, in the context in which he did them.

Evidence was led at trial of a series of interviews conducted by police officers with both the appellant and Vaughan.

The first two interviews were conducted on 28 March 1997. The second interviews took place on 4 April 1997, on which occasion both the appellant and Vaughan were arrested.

Although the full texts of the second set of interviews was not actually placed before the jury, it is beyond question that it was demonstrated by the Crown that, in the course of the two interviews, the appellant told a number of specific lies to the police officers. Salient amongst these were:-

* he had not recently been to the premises at 26 Foster Place, Goolwa;

* on the morning of the shooting he had been out fishing in the Bluff area with Vaughan;

* after that activity he had gone to his mother's house;

* he had definitely not been involved in the shooting incident;

* he knew nothing of a .22 calibre Sterling semi automatic rifle that had been cut down at the home of Vaughan's father;

* although he had grown some cannabis plants some time ago, no-one had recently stolen cannabis plants grown by him; and

* he was not the person who fired the shot through the window at 26 Foster Place, Goolwa on 28 March 1997.

Evidence was also given that, in the course of a third interview, which took place on 7 April 1997 at the request of the appellant, he recanted in relation to the above lies. He then admitted that, on the morning of 28 March 1997, he and Vaughan had gone to the Goolwa premises. He also volunteered that he was of the opinion, at that stage, that White had stolen some of his plants. As he put it to the police officers -

"... we went over there to try and get the stuff back off them and we went over there and we got there and that and we went we checked the bloke's boot and that and there was evidence of leaf and stuff like that in his boot and no-one seemed to be around and just ended up firing shots at the place".

In the course of this interview the appellant said that the firearm had, for some time, been hidden at a house in Victor Harbor which was occupied by Vaughan and himself. The plants had been stolen on the Thursday night, from premises at Goolwa where they had been cultivated by the appellant. A mutual acquaintance, living at those premises had identified White as one of the four persons who had taken the plants.

The appellant related to the police, on 7 April 1997, how he and Vaughan had gone to Goolwa. They had taken the rifle to scare White. They dressed in black clothes. The appellant wore a balaklava over his head, whilst Vaughan had a black T-shirt pulled over his head.

They had forced the boot of White's car open (in the manner depicted in photograph 37 of the bundle of photographs) to check its contents. They observed what they considered to be old cannabis leaf inside the boot. The appellant asserted to the police that it was only when he found the leaf residue in the boot that he actually decided to fire shots into the house structure. He said that no-one came out of the house when they made some noise forcing the boot. He thought that no-one was home. He merely fired three shots, more or less at random, in anger. He did not see anyone come to the relevant window, or hear anyone call out. He did not think of the possibility that a shot fired through the window might hit someone. He said that the shots were only roughly aimed - the first being directed at a window and the succeeding two shots at the back door. The rifle had a silencer on it. He did not at any stage, even after discharging the firearm, become aware of the presence of anyone in the house.

It was the appellant's story to the police that, as soon as the shots were fired, he and Vaughan absconded. They later buried the rifle in a cemetery, in a location from which, at the appellant's direction, the police later recovered it.

When police attended at the house at 26 Foster Place, Goolwa on the morning of 28 March 1997 they found a hole in the rear dining/lounge area window at about chest/abdomen height and two holes in the rear door. These are clearly depicted in the photographs.

White had blood on his arms and face. The rear right-hand section of the boot of his car had been jemmied up on an angle. There was green vegetable matter, similar to cannabis, in the boot.

It was against that general background that the appellant was convicted.

The appellant sought to challenge five separate aspects of the directions given by the learned trial judge to the jury. These were pleaded as under:-

"1. The Learned Trial Judge erred in directing the jury as to the use it could make of any lies told by the accused. Particulars a The learned Trial Judge failed to identify the evidence of alleged lies which were capable of supporting an inference of guilt and those which were not. b. The learned Trial Judge failed to identify the possible reasons consistent with innocence for the lies told by the appellant in the first interviews with the police. c. The Learned Trial Judge erred in leaving the lies told by the applicant denying knowledge of the shooting as an item of circumstantial evidence from which guilt can be inferred. 2. The Learned Trial Judge erred in directing the jury that 'There is no evidence to support the defence scenarios as advanced to the police in the respective third records of interview' in that the evidence of what was said in the interviews was evidence available to be used both for and against the defence. The reference to the 'probative value of the material' from the third interview was not sufficient to correct the misdirection. 3. The Learned Trial Judge erred in directing the jury that the failure of the appellant to give evidence as to his state of mind strengthened the prosecution case. 4. The Learned Trial Judge unduly emphasised the significance of the failure of the appellant to give evidence. 5. The Learned Trial Judge when dealing with the explanation consistent with innocence given by the applicant in the third police interview failed to make it sufficiently clear that the appellant carried no onus to prove his innocence and that the Crown carried an onus of disproving the explanation beyond reasonable doubt."

I will deal with each of these complaints in turn:-

In the course of his address to the jury the Crown Prosecutor specifically made reference to lies told by the appellant. She pointed out that he had been prepared to tell extensive lies to the police on more than one occasion, but did not descend to detail as to what lies she was referring. She invited the jury to conclude that he had lied to the police about not seeing or hearing White "as he knew that if he had told the police that he saw him and then fired the shot, that he would be in more trouble than he already was". She later went on to point out that, ultimately, Vaughan had conceded to police that, at one point, he had heard White yell out at some stage, although he was not certain whether this was before or after the shots were fired.

The learned trial judge correctly assessed that this submission clearly called for some appropriate direction to the jury.

In the early portion of his summing up he did in fact give such a direction. However, like the Crown Prosecutor, he spoke only in general terms and did not direct specific attention to the lies in question.

"In assessing the credibility of witnesses and persons involved in this trial, if you come to the conclusion that a person has deliberately told a lie (or lies), then you may be reluctant to trust anything that that person has said, but you need not necessarily disbelieve him entirely. If you find that a person has deliberately told lies out of court, for instance to the police during a record of interview or records of interview, this might help you to decide whether to accept or reject what that person has said at another stage, for example, in a later record of interview. But lies do not necessarily have the effect of discrediting a person entirely; they may be capable of explanation. In criminal trials it sometimes happens that lies told by an accused person out of court are capable of explanation consistent with innocence. You see, an accused person may well tell a lie and be other than truthful out of fear, or because of confusion, or for no apparent reason, that is to say for a variety of innocent reasons, or an accused person may tell a lie because of a consciousness of guilt. I warn you that, just because an accused may have told a series of lies, for example, as in the first record of interview that he was subjected to, or the second, it does not necessarily mean that he is guilty. If you find that an accused (or, indeed, that both accused) told lies to the police, you may consider what reason or reasons he (or they) may have had, or what purpose they may have had in mind for so telling those lies. You may reach the conclusion - I say 'you may reach the conclusion', not that you must - you may reach the conclusion that, conscious of his guilt, he was trying to disassociate himself from the allegation that he knew would be made and therefore to avoid responsibility for what he knew he had been involved in. That is to say, the deliberate firing of a shot at Anthony White in circumstances of danger. If a lie (or lies) are told by the accused relating to a material fact in issue in the trial, for instance whether and in what circumstances a rifle was fired, and if the nature of the lie (or lies) told, or the circumstances in which they were told, possess a tendency to indicate that the motivation was a fear of the truth, such lies are relevant for consideration as offering positive evidence of guilt. However, I advise you that only in rare circumstances is it safe to go that far. It is for you to judge whether you think that this is an appropriate case for you to draw the inference of guilt from the evidence of the lies, if you find that they were told by the accused."

Somewhat later in the summing up the learned trial judge returned to the topic of lies. He did so in the context of discussing the question of circumstantial evidence. In the course of reciting what were the relevant items of circumstantial evidence arising for consideration, he included the following:-

"... the fact that afterwards they both told lies, denying any knowledge of the shooting incident, rather than telling that they had fired shots at the house (which lies, you might conclude, arose from a consciousness of guilt - something more than having caused property damage with a firearm, and something in which there truly had been a victim who had a lucky escape from danger)."

The locus classicus on this topic is to be found in the joint judgment of Deane, Dawson and Gaudron JJ in Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193 at 210-211 ( "Edwards"). They there said:-

"A lie can constitute an admission against interest only if it is concerned with some circumstance or event connected with the offence (i.e. it relates to a material issue) and if it was told by the accused in circumstances in which the explanation for the lie is that he knew that the truth would implicate him in the offence. Thus, in any case where a lie is relied upon to prove guilt, the lie should be precisely identified, as should the circumstances and events that are said to indicate that it constitutes an admission against interest. And the jury should be instructed that they may take the lie into account only if they are satisfied, having regard to those circumstances and events, that it reveals a knowledge of the offence or some aspect of it and that it was told because the accused knew that the truth of the matter about which he lied would implicate him in the offence, or, as was said in Reg. v Lucas (Ruth), because of 'a realization of guilt and fear of the truth'. Moreover, the jury should be instructed that there may be reasons for the telling of a lie apart from the realization of guilt. A lie may be told out of panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the offence. The jury should be told that, if they accept that a reason of that kind is the explanation for the lie, they cannot regard it as an admission. It should be recognized that there is a risk that, if the jury are invited to consider a lie told by an accused, they will reason that he lied simply because he is guilty unless they are appropriately instructed with respect to these matters. And in many cases where there appears to be a departure from the truth it may not be possible to say that a deliberate lie has been told. The accused may be confused. He may not recollect something which upon his memory being jolted in cross-examination, he subsequently does recollect."

As was stressed in The Queen v ST (1977) 92 A Crim R 390 at 393, before a jury may accept a lie as constituting an admission of guilt, it must be satisfied that the inference that the accused knew that, if he told the truth, he would be found guilty must be the only reasonable inference to be drawn from the circumstances in which the lie was told. It must relate to something which directly links the accused with the crime charged. These points must be made clear in the charge.

The problem in the instant case is that the totality of the direction given did not adequately satisfy the above requirements.

It was unfortunate that such particularity as was added to the mere statement of general principle was both divorced from it and also included simply as but one item of circumstantial evidence which arose for consideration. In other words the specific area of application of the general principle tended to be obscured by the quite separate discussion of circumstantial evidence. Moreover, it was not rendered clear that the various other specific lies told merely had relevance to the weight and credibility to be attached to what was said to the police at the time of the third interview.

However, more importantly, the jury were not told that they could not rely upon the relevant specific lie as being evidence of consciousness of guilt unless they were also satisfied that such consciousness was the only reasonable inference to be drawn from the circumstances in which the lie was told.

Quite apart from what should actually have been said to the jury there is an even more fundamental difficulty.

It must firmly be borne in mind that the vital issue arising before the jury was not whether shots had been fired at the house, but whether the specific projectile which penetrated the window had been fired with the relevant specific intent or recklessness.

When one peruses the text of the summing up it immediately becomes apparent that the direction to the jury on lies was far from clear in that respect. The learned trial judge merely referred to the denial of any knowledge of the shooting incident - which lie, he said, might well have arising " from a consciousness of guilt - something more than having caused property damage with a firearm, and something in which there truly had been a victim who had a lucky escape from damage".

To say the least this was a very oblique reference to the issue of intention.

What is, perhaps, of even greater significance is that it was most unfortunate that the matter was left with the jury in that way at all.

But a moment's consideration indicates the practical impossibility of concluding that, in all of the circumstances, a mere general denial of any knowledge of the shooting incident could, on any view, logically, have led to a conclusion that the only reasonable inference to be drawn was that, not only had the appellant in fact fired the relevant shot, but that he had also done so with the requisite state of mind.

Of course, by the time of trial, it had been admitted by the appellant that he had, indeed, fired all relevant shots. The lies told, when they were told, may merely have been an attempt on the part of the appellant to distance himself from the overall incident of the firing of the shots and the resultant property damage (conduct which constituted quite separate criminal offences not before the jury). There was nothing to indicate, in any compelling fashion, that they necessarily and specifically bore on the issue of intent or other state of mind at all.

It follows that the directions given were neither adequate in light of the authorities, nor appropriate to the evidence.

Indeed, it must be said that it is a pity that the learned trial judge did other than simply tell the jury that the history of lie telling was a matter to be borne in mind in assessing what weight (if any) ought to be given to any exculpatory statements made by the appellant to the police, when assessing what reasonable possibilities remained at the end of the trial.

In truth, what was said merely served to complicate what was, essentially, a quite simple case and, potentially, confuse the jury and divert their attention from the single core issue.

Moreover, I think that such problem was compounded by the degree of emphasis which naturally flowed from the content of the direction given. It had the practical effect of highlighting the issue of lies and giving it an unfortunate degree of prominence which could have distorted the reasoning processes of the jury, absent a direction conforming with what was said in Edwards .

Whilst, no doubt, the lies originally told were, potentially, highly pertinent to credibility and what weight (if any) ought fairly to be attributed to any exculpatory statements made by the appellant to the police in the course of his third interview, it is difficult to perceive how, in the context of the instant case, it could properly be asserted that such lies evidenced guilt. There were so many alternative reasonable theses why they may have been told that it is unfortunate that this issue was developed and left to the jury, in the most general terms.

I consider that, on this ground alone, it must be concluded that the trial miscarried.

However, lest that view not prevail, it is necessary that I direct attention to the other grounds relied on.

2. Reference to Defence Scenarios and failure of accused to give evidence.

In the course of his directions the learned trial judge dealt, at considerable length, on the failure of the accused to give evidence on oath. He discussed the situation in these terms:-

"An accused person, whether or not he gives evidence on oath, can call witnesses in his defence, if he has any, and he may tender exhibits. Each accused in this trial chose to take the first course. Each of them remained silent. By so doing, each exercised a right which the law has given them. You should bear steadfastly in mind that, in the case of each accused, he is not required to prove his innocence. The silence of an accused can never displace the onus (or burden) which is on the prosecution to prove his guilt beyond reasonable doubt. A failure to offer an explanation in court does not, of itself, prove anything, nor does it, in any sense, corroborate or support and confirm other evidence. But the failure of an accused person to contradict on oath evidence that, to his knowledge, must be untrue can logically be regarded as increasing the probability that it is true, that is to say, a failure to deny or explain may make evidence more convincing, but it does not supply its deficiencies or plug up the gaps in it. To explain this another way, when, as in this case, an accused fails to take the opportunity to place before the court evidence of facts within his knowledge, which, if they exist at all, would explain or contradict the evidence against him, you may more readily accept that evidence which is against him. It is not just because uncontradicted evidence is easier or safer to accept than contradicted evidence. It is because doubts about the reliability of witnesses or about the inferences to be drawn from the evidence may be more readily dispelled in the absence of contradictory evidence from the accused, if he could be expected to give it. Hypotheses (or explanations) consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused. Of course, you should remember that the accused whom you are considering may have a reason or reasons for not giving evidence other than that the evidence would not assist his case. You should bear that in mind when determining whether the prosecution case is strengthened by the failure of the accused to give evidence. When there are facts peculiarly within the knowledge of an accused whom you are considering, you may take into account his failure to give evidence, because that failure is capable of assisting you in the evaluation of the circumstantial evidence before you from which you are asked to infer that the particular accused was party to an agreement or joint enterprise, that he knew that the plan was to shoot at Anthony White, that he knew that the plan was to scare Anthony White by firing a shot at or towards him, that he knew (or must have known) that the act of shooting was likely to endanger the life of Anthony White, that he intended to endanger the life of Anthony White or he was recklessly indifferent as to whether Anthony White's life was being endangered or not. So I say to you that, when there are facts peculiarly within the knowledge of the accused whom you are considering, such as whether there truly was a joint enterprise, an agreement or plot, such as whether the accused knew that the plot included the plan to fire the 22 sawn-off rifle at or towards Anthony White, and such as whether he knew the dangers involved and what the motive behind the joint enterprise was, you may take into account the failure of the accused to give evidence and you may be assisted in your evaluation of the circumstantial evidence to draw the inference, amongst others, that the accused was party to an agreement, a plot or a joint enterprise, and that the plan was to fire a shot at Anthony White to frighten him. There is a fine line of distinction between drawing the inference of guilt from silence (which is not permissible) and drawing an inference otherwise available more safely (which is permissible) because the accused has not supported any hypothesis (or explanation) consistent with innocence from facts perceived to be within his knowledge. In determining whether the prosecution has discharged the onus (or burden) of proof to the requisite standard, beyond reasonable doubt, against an accused whom you are considering, I tell you that it is relevant to assess the prosecution case on the footing that the accused has not offered evidence of any hypothesis (or explanation) which is consistent with innocence. So it is that the failure of the accused to give evidence is not, of itself, evidence. It is not an implied admission of guilt by conduct. It cannot be an admission of guilt by conduct, because it is the exercise of a legal right which the accused has; namely, to put the prosecution to its proof. When an accused, as both accused here chose to do, elects to remain silent at trial, the silence cannot amount to an implied admission against either of them. The accused is entitled to take that course and it is not evidence of either guilt or innocence. Silence on the part of the accused at his 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 an accused to give evidence, for example, as to whether or not an agreement was entered into and as to what his state of mind was is a circumstance which may bear upon the probative value of the direct and circumstantial evidence which has been adduced by the Crown and which you are required to consider, that you may take that accused's failure to give evidence into account. You may take it into account only for the purpose of evaluating the evidence. Both accused were in a position to have explained what, if anything, had been agreed between them and what was in their respective minds at the relevant times. Each was in a position to deny, explain or answer the evidence against him. The failure, on the part of an accused whom you are considering, to give evidence is capable of being seen as strengthening the prosecution case by enabling you, in the absence of any explanation by the accused, to accept more readily the inferences which the prosecution, in effect, contended were the only rational inferences from the evidence. I repeat that an accused is not bound to give evidence and that the onus of proof remains on the prosecution to prove guilt beyond reasonable doubt. What I am saying to you is that, recognising those basic principles, it is nevertheless legitimate for you to have regard to the fact that each accused has given no excuse (or explanation) of the Crown case apart from what he told the police in the third record of interview, as it has been called. The only version of the facts before you is that proved, if proved it be, by the prosecution witnesses and the exhibits. There is no evidence to support the defence scenarios as advanced to the police in the respective third records of interview. As I have said, the two accused each chose not to give evidence in this trial. I have emphasised that that is their right, if they choose not to give evidence in their defence. There is no obligation upon an accused to give evidence. The decision of each accused is not to be used against him. That is to say, you should not draw any inference adverse to the accused from his failure to give evidence. The fact that the particular accused whom you are considering chose not to give evidence may bear upon the probative value of the material you do have before you in the form of the third record of interview in the case of each accused and all the evidence of witnesses who went into the witness box. In considering the material you do have before you in the form of the third record of interview in each instance, you will be conscious of the fact that you have not had the opportunity of seeing and hearing the accused being examined and cross-examined and, if necessary, re-examined whilst in the witness box, and you have not had the opportunity to observe them being tested (as witnesses) when in the witness box. You have not had the advantage of observing their demeanour during that process."

As has been seen, the appellant seeks to attack this direction from these perspectives:-

* that it unduly emphasised the significance of the failure to give evidence;

* that it impermissibly suggested that the failure of the appellant to give evidence as to his state of mind strengthened the Crown case; and

* that it was an error to direct the jury that there was no evidence to support the defence scenarios advanced to the police in the second and third records of interview, because what was said in those interviews was evidence available for use both for and against the accused.

In my view, when the relevant extract from the directions given to the jury is read in its entirety, there is no substance in any of these criticisms.

It seems to me that, in this case, a vital consideration was the failure of either accused person to enter the witness box and give evidence on oath - to establish a proper basis of evidence upon which it could fairly be said that the strong inferences which naturally arose on the Crown case, had nevertheless, to be viewed in the context that other reasonable, real possibilities existed.

True it is that certain statements were made to the police in the third interview on 7 April 1997, but, in the absence of sworn evidence, these fell to be viewed both against the background of tissues of lies told by the both accused on two previous occasions - as well as the sworn evidence of White. His evidence was strongly corroborated in a number of important respects and, on the face of it, suggested that the story told by the appellant as to his state of mind and knowledge when the shots were fired, was highly improbable. The tide of circumstantial evidence flowed so strongly against what had, informally, been asserted to the police by the appellant, as to render his version of events as to his state of mind quite unreal in absence of supporting evidence on oath as to his state of mind at the time, which the jury was prepared to accept.

That was the message conveyed by the learned trial judge to the jury and it was a counsel of common sense. There was no positive evidence to support the defence scenarios eventually expressed to the police. The fact that they were so expressed does not mean that, ipso facto, they necessarily had to be accepted as residual, reasonable possibilities. They fell to be examined in light of the evidence as a whole. When so considered they were, patently, of no weight in absence of sworn evidence of the appellant and stretched credulity to the limit.

It is stating the obvious to say that this was an aspect which touched on a matter singularly in the mind of the appellant. His failure to give evidence, was a circumstance which bore heavily on the probative value of the material left for the consideration of the jury in its absence. It was reasonable to expect that a denial on oath would be forthcoming if the truth of the matter was inconsistent with the inference naturally arising on the evidence led by the Crown. ( Weissensteiner v The Queen [1993] HCA 65; (1993) 178 CLR 217 (" Weissensteiner" ) ). This is what the learned trial judge said to the jury and he was entitled to do so.

It should be said in this regard that Mr Kourakis QC strongly pressed upon this court a suggested interpretation of the meaning and proper construction of the judgments in Weissensteiner which, in my opinion is not sustainable.

In essence he contended that the directions given by the learned trial judge do not accurately reflect the true ratio of Weissensteiner . Mr Kourakis QC submitted that, properly understood, the judgments in Weissensteiner simply contemplate the absence of any explanation concerning the relevant aspect, by whatever means that explanation may be provided. If such an explanation is extant, albeit in the form of some informal oral or documentary material, then a Weissensteiner direction such as that given by the learned trial judge is inappropriate.

Mr Kourakis QC sought to derive considerable comfort in that regard from the joint judgment of Gaudron and McHugh JJ, particularly a dictum set out in the report of Weissensteiner at pages 242-246. They there express the view that there is a distinct difference between mere silence or the absence of evidence, on the one hand, and, on the other, the failure to explain facts for which, it is assumed, an innocent person would offer some explanation. Where there is an assumption to that effect, the failure to explain is conduct which proves, or tends to prove, guilty knowledge on the part of the accused and is, itself, evidence.

So it was that it was contended on behalf of the appellant that, if an explanation is apparent (e.g. because an exculpatory explanation is proffered in a statement to the police), " then it makes no sense and serves no purpose to tell a jury that the Crown inferences towards guilt are enhanced by the absence of explanation because that's simply not so. The explanation is there. "

The short answer to that proposition appears to me that, if such a proposition is supported by the basis of reasoning expressed by Gaudron and McHugh JJ, then the reasoning in question was that of the minority in the case. It does not reflect the conceptual approach adopted by the majority.

In their joint judgment, Mason CJ and Deane and Dawson JJ do not base their reasoning on the same footing as that embraced by Gaudron and McHugh JJ. They expressly speak of the reasoning process whereby the failure of a party to give or call evidence is taken into account in evaluating evidence which is before the court. As they articulated the concept:-

"...it has never really been doubted that when a party to litigation fails to accept an opportunity to place before the court evidence of facts within his or her knowledge which, if they exist at all, would explain or contradict the evidence against that party, the court may more readily accept that evidence. It is not just because uncontradicted evidence is easier or safer to accept than contradicted evidence. That is almost a truism. It is because doubts about the reliability of witnesses or about the inferences to be drawn from the evidence may be more readily discounted in the absence of contradictory evidence from a party who might be expected to give or call it. In particular, in a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused."

As I have attempted to illustrate, very strong inferences naturally arose from the circumstantial case mounted by the Crown. All that existed to rebut those inferences was an informal, exculpatory assertion made by the appellant at a third interview, following two prior interviews which constituted a tissue of lies.

Plain common sense dictates that such an assertion could logically be accorded little or no weight, absent some confirmatory evidence on oath given by the only person who could, directly, speak of his relevant state of mind - i.e. the appellant himself. A Weissensteiner direction, including the requisite caveat contemplated at page 228 of the report of that case, was plainly called for and properly given.

For the sake of completeness it is desirable to make the point that the reasoning set out in the joint judgment of Brennan J (as he then was) and Toohey J essentially follows that of Mason CJ and Deane and Dawson JJ. They sum up the relevant concept by saying that:-

"If there is insufficient evidence of the facts from which an inference of guilt could be drawn, a failure to testify cannot supply the deficiency. But the jury may draw inferences adverse to the accused more readily by considering that the accused, being in a position to deny, explain and answer the evidence against him, has failed to do so. ".

Like the other judges comprising the majority they commented:-

"It follows that ... a judge may tell the jury that where the facts which they find to be proved by the evidence can support an inference that the accused committed the offence charged and where it is reasonable to expect that, if the truth were consistent with innocence, a denial, explanation or answer would be forthcoming, the jury may take the accused's failure to give evidence into account in determining whether the inference should be drawn. The jury should be told that the onus remains on the prosecution and that the accused is under no obligation to give evidence, but that "it is legitimate to have regard to the fact that the accused has given no evidence or explanation or satisfactory explanation of the Crown case as a consideration making the inference of guilt from the evidence for the prosecution less unsafe than it might otherwise possibly appear".

In my opinion the proposition advanced by Mr Kourakis QC does not derive support from Weissensteiner and must be rejected. The bare exculpatory explanation given by the appellant to the police is simply not evidence probative of the circumstance alleged. It is merely evidence that he made the statement in question.

I would, unhesitatingly, reject grounds 2 to 4 inclusive of the grounds of appeal.

In a very real sense this ground is directly associated with grounds 2 to 4. It asserts that, in dealing with what was said by the accused in his third interview, the learned trial judge failed to make it clear that the appellant carried no onus of proving his innocence and that the Crown carried an onus of disproving the explanation beyond reasonable doubt.

It seems to me that this criticism, read in light of the specific references given to the summing up text, seeks to extract certain paragraphs from the charge to the jury and read them out of context and in isolation from their setting.

What the learned trial judge was seeking to explain was that, in absence of any sworn evidence from the appellant, it was necessary to examine what had been said by him to the police against the background of the circumstantial evidence led by the Crown; and determine whether that evidence clearly negated the reasonableness or rationality of the appellant's statements.

Elsewhere in his directions the learned trial judge rendered it quite clear that the appellant was presumed innocent until proven guilty; the appellant did not have to prove his innocence; and that the onus rested on the Crown of proving the appellant's guilt beyond reasonable doubt. He made these points clear at the outset and returned to them at the conclusion of his directions. He specifically told the jury that the case of the appellant was that the relevant shot was not deliberately fired at White; and that, if they concluded that it was reasonably possible that this was so, both accused were entitled to verdicts of acquittal.

I would also reject this ground of appeal, as being of no substance.

In view of the fact that the first ground of appeal has been made good I would allow the appeal, quash the appellant's conviction and remand him for re-trial. I do not see how, in light of the misdirection given, the proviso could properly be resorted to.