HIS HONOUR: Yesterday, Mr Pickering for the accused Mr Oberg, made an application to discharge the jury. The basis for that application was that Mr Apostle for the accused Mr Peters made the submission to the jury that Mr Peters gave evidence and Mr Oberg did not. Consequently, so it was submitted, Mr Peters had exposed himself to cross-examination, a matter that should be taken in support of his innocence, in contrast to the course adopted by Mr Oberg of choosing not to give evidence, which was submitted to be indicative of guilt.
The relevant passage from the transcript appears to be at p 877 where, at line 23, it was said:
Now, members of the jury, Mr Oberg has not sat in the witness box; put himself in the firing line in these proceedings. We say that is because in relation to the counts on the indictment for which Mr Peters has been charged, we say that he is guilty. We say that he bears responsibility as conveyed to you by Mr Peters in his evidence. He is guilty of forging cheques of Mr Peters and depositing the money into his accounts.
Mr Pickering's submission went as far as to suggest the submission by Mr Apostle of the guilt of Mr Oberg extended to matters beyond those with which Mr Oberg is charged, in particular counts 1, 3, 4 and 15. Those four counts are all counts solely alleged against Mr Peters. Mr Pickering submits that these submissions should not have been made and will unduly influence the jury's considerations.
Before dealing with s 20(2) of the Evidence Act 1995 (NSW), my view based on the passage just read from p 877 of the transcript is that the submission could be read to have been intended to be as broad as Mr Pickering suggested, though it is a little ambiguous. It is something that I can deal with in directions; I will hear from Mr Apostle precisely what might be appropriate to say to the jury. But in general terms, whether the submission was intended to be directed only to the four joint counts, or beyond that to the four counts solely of Mr Peters, so as to presumably further impugn the innocence of Mr Oberg and make it even more likely that Mr Oberg was responsible for the joint counts, is a somewhat open question. For the purposes of these reasons it does not have an impact, because even if it is the broader submission, I think that can be addressed by an appropriate comment or direction.
The submissions as to the guilt of Mr Oberg made by Mr Apostle were founded on s 20(2) of the Evidence Act. That section provides that the judge or any party, other than the prosecutor, may comment on a failure to give evidence. However unless the comment is made by another defendant in the proceeding, 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 cases considering s 20(2) focus on comments made by a judge and whether such comments offend the prohibition on any comment of the judge suggesting the failure to give evidence was because the accused was or believed he or she was guilty of the offence concerned. Two cases in particular are instructive. The first is Azzopardi v The Queen (2001) 205 CLR 50. The judgment of the majority in that case explained the circumstances in which a comment by a judge regarding an accused not giving evidence could be made. At [64] the majority said:
There may be cases involving circumstances such that the reasoning in Weissensteiner will justify some comment. However that will be so only if there is a basis for concluding that if there are additional facts which would explain or contradict the inference which the prosecution seeks to have the jury draw, and they are facts which (if they exist) would be peculiarly within the knowledge of the accused that a comment on the accused's failure to provide evidence of those facts may be made.
The facts which it is suggested could have been, but were not, revealed by evidence from the accused must be additional to those already given in the evidence by the witnesses who were called. The fact that the accused could have contradicted evidence already given will not suffice. Mere contradiction would not be evidence of any additional fact. In an accusatorial trial, an accused is not required to explain or contradict matters which are already the subject of evidence at trial. These matters must be assessed by the jury against the requisite standard of proof without regard to the fact that the accused did not give evidence.
In the second case which is relevant, which is the case of Regina v Skaf [2004] NSWCCA 74, there was similar reasoning. The circumstances in that case were of a co-accused having made improper submissions (see at [106]) and the judge's response to those submissions set out at [182]. The improper submissions were to suggest as fact matters that had been put by one accused's counsel to a co-accused and which had been denied, and the judge's comments were made in an effort to negate those improper remarks. In doing so it seems the judge may have overstepped (see at [197]) but it was also said that his comments did not offend s 20(2) (see at [195])
Based on these two cases, it may be said in general terms that a comment by a judge as to an accused not giving evidence may be appropriate in the context of assessing the weight of other evidence tendered in the case. Whether any comment is made, and if so what, clearly depends on the facts of the particular case.
In the present case, the concern is of remarks made by counsel for "another defendant in the proceeding". That is a point of distinction from the two cases just cited. Both those cases, by way of dicta, do however refer to a situation of a co-accused in terms of s 20(2).
In Azzopardi it was said at [54]:
The effect of the subsection is that the judge, the accused and any co accused may comment on the fact that the accused did not give evidence. But the judge may not by that comment 'suggest' that the accused failed to give evidence because he or she was guilty, or believed that he or she was guilty of the offence charged. It is very improbable that the accused would ever wish to make such a suggestion, that a co accused may do so is hardly surprising.
If only one of two accused persons gives evidence at their joint trial, it is inevitable that the accused who has given evidence will want to urge the jury to contrast that with the course taken by the other accused. It is well nigh inevitable that an urging that the evidence given by the accused demonstrates innocence. The suggestion will be made explicitly or implicitly that the co accused stayed silent because unlike the accused who did give evidence, he or she was guilty.
In Skaf it was said at [186]:
The 'events' were that Tayyab Sheikh and Mohammad Skaf were at the park and that Sheikh's nickname was Sammy. There was no evidence of this, and the judge was admittedly entitled to tell as much to the jury in emphatic terms. It would also have been open to Skaf to have gone further and suggested that his co accused had not given evidence because they believed that they were guilty of the offence concerned (cf s 20(2)). Skaf's counsel was foreshadowing that he would weigh in strongly in his address, unless the judge gave an adequate protective direction.
Based on those dicta, the comments of Mr Apostle were permissible if they were limited to the four counts where the accused was charged with Mr Oberg, and possibly also in respect of the other four charges. However, bearing in mind the matters discussed in both Azzopardi and Skaf, and bearing in mind - and in saying this, I hope I do not do a disservice to Mr Apostle's submissions - the lack of any real connection made in the submissions to anything peculiarly within Mr Oberg's knowledge, my view is that those comments may work an unfairness on Mr Oberg, and may offend against his right to silence to an impermissible degree.
Any such unfairness can be negated by the directions and comment I propose in my summing-up. In addition to the standard direction as to an accused not giving evidence, I propose to comment as follows. The proposed comment following the standard direction would be in these terms;
In connection with that direction, I also need to make a comment. A comment is something that you may disregard as it relates to evidence which is your domain, as opposed to a direction, which you cannot disregard and must follow as it relates to the law. It has been submitted on behalf of Mr Peters that because Mr Oberg did not get in the witness box, that you would more readily consider that Mr Oberg and not Mr Peters, carried out the conduct in respect of counts 2, 7, 8 and 9. By way of comment, which you may disregard, I suggest you bear in mind:
First, just what it is that Mr Peters is saying indicates guilt. That is, what facts are there that are impacted on by Mr Oberg not giving evidence. For example, Mr Peters' case includes his denial that it is his signature on the cheques for counts 2, 7, 8 and 9. On that issue there is other evidence, for example documents to compare signatures. Assume Mr Oberg did give evidence, and was asked if he signed them; he would presumably deny it, as the Crown and Mr Oberg have suggested, other evidence supports the view that it is Mr Peters' signature. The point, or comment, on this example, is that the decision not to give evidence by Mr Oberg has little, if any, impact on the factual matters for you to consider. In assessing the evidence, you may wish to take into account the impact the evidence may have had, and be aware that at the same time that Mr Oberg is exercising his right to silence.
My second comment is to remind you that this is a trial of two trials in one. The function of Mr Peters' case is not to have Mr Oberg found guilty, but to have Mr Peters found not guilty. That means the argument being put for Mr Peters adverse to Mr Oberg is being put in the case of the R v Peters, for the purpose of persuading you that Mr Peters is not guilty.
In the other case of R v Oberg, no such submission concerning his failure to give evidence has been made. The Crown in so acting is recognising the entitlement of Mr Oberg to chose not to give evidence, and not have that taken into account adversely to him. Hence, by way of comment, you may consider it that in assessing the evidence in R v Oberg you should assess it in the way it has been presented to you by the Crown and counsel for Mr Oberg and in accordance with my directions.
I have already ruled against the application to discharge the jury and my reasoning for that conclusion is based on the above brief review of the two authorities referred to, specifically that Mr Apostle is entitled to make such a submission, but the manner in which it was made may have been unfair on Mr Oberg. Any unfairness however in my view is able to be dealt with by the directions I propose to make, as outlined above.
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Decision last updated: 12 July 2019