R v S [1994] QCA 105

The point underlying the first ground is that the direction undermined the right of an accused to abstain from giving evidence without having any adverse inference drawn. In order to tell whether this right was infringed in this particular case, it is necessary to recount the course of the trial.

The complainant (now aged nineteen) gave evidence of various improprieties over the period in question. Counsel commenced his cross-examination by putting that the relevant allegations were untrue, by means of the following three questions.

"MR MARTIN: Now K, just - if we just go through these incidents. I put it to you that my client has never touched you on your vagina at all. Do you agree or disagree with that?-- Disagree.

He's never placed his finger inside your vagina at all; do you agree or disagree with that?-- Disagree.

And he never grabbed you on the breasts in the way that you've described, by being on the floor and putting both hands on them. Do you agree or disagree with me?-- Disagree."

Elsewhere he "suggested" that she had not made certain statements that she now claims to have made. At the end of the Crown case His Honour asked the accused whether he intended to adduce evidence in his defence. Section 618 of the Code states quite simply that "at the close of the evidence for the prosecution the proper officer of the court shall ask the accused person whether he intends to adduce evidence in his defence." His Honour did so by means of seven questions (or explanations), obtaining the accused's response in each instance. One of the accused's responses produced what was later referred to as "anger" on the part of the learned trial Judge. The questions and answers unfolded in this way.

"HIS HONOUR: S, the case for the prosecution having been concluded, I am obliged to ask you if you intend to adduce evidence in your defence. The choice is yours and yours alone. Do you understand that?

HIS HONOUR: You may give evidence yourself which means you will go into the witness box, be questioned by your counsel Mr Martin and cross-examined by Crown counsel Mr Rowntree. Do you understand that?

HIS HONOUR: You may call other witnesses to give evidence on your behalf if you so wish; do you understand that?

HIS HONOUR: You may adopt any combination; you may give evidence yourself and call other witnesses, you may give evidence yourself and not call other witnesses, or you may call other witnesses and not give evidence yourself, or you may neither give nor call evidence. Do you understand your options?

HIS HONOUR: Are you going to go into the witness box and give evidence yourself?

ACCUSED: I called one this morning, but wasn't able to come.

HIS HONOUR: Are you calling any other witnesses, yes or no? You're a not unintelligent person by the sound of things.

There may be cases where there is reason to suppose that counsel have not performed their duty of explaining to their client his or her rights and discussing the appropriate options. In such cases it may be appropriate for the trial Judge to ensure that an accused person has adequate understanding of his rights, and may on some occasions do so by explaining the various options in front of the jury. However generally speaking we think that the expansion of the simple question in s. 618 into a series of instructions concerning various options tends unduly to focus attention upon a sensitive area, and to over-emphasise the tactical considerations in the minds of the jury. The present incident also illustrates that it has the potential for producing an inappropriate response, whether spontaneously or manipulatively. On the whole we think trials will proceed more safely in the ordinary course by a simple performance of the duty imposed by s. 618, unaccompanied by extrapolations.

In the circumstances no particular problem might be thought to have emerged from the above sequence. However His Honour returned to it in his summing up, and speculated at some length upon a number of matters. His Honour dealt with two occasions upon which he "may have seemed to have got upset with the accused" including the incident in question; and spoke at some length upon the assumption that A (the complainant's sister) was the witness the accused had wanted to call. The thrust of His Honour's directions was that the jury must not speculate on what A might have said, but the general effect might be thought to have been productive of confusion. However no particular complaint is made on that score, and it is mentioned as an accompanying circumstance to the more important point namely the suggestion by the learned trial Judge that the trial had been conducted by defence counsel in a way that raised an expectation that the accused would give evidence. The problem arises in the following passage.

"I will be explaining to you that an accused is not obliged to give or call evidence and no adverse inference to him may be drawn by his electing not to give evidence. He has chosen by such course to leave the complainant's sworn evidence uncontested. That the only evidence in relation to the incident comes from the complainant. One could be forgiven for thinking that the accused was going to give sworn evidence because in his opening cross-examination, experienced defence counsel did not say to the complainant, 'Now, did these acts happen?', or 'Are you sure they happened?' He did not say, 'I suggest to you they did not happen.' He said, 'I put it to you that they did not happen.' And if counsel puts something to a witness, he only does it in a situation in which he knows or is confident that what he has put will be supported by evidence. It will be the subject of evidence and the source of that evidence obviously one might have thought was to be the accused. Experienced defence counsel does not say, 'I put it to you' instead of, 'I suggest to you' or, 'Did this happen?' He does not put it unless he has a state of belief in relation to his instructions at that stage. He said, 'I put it to you', the accused did not give evidence and so the only evidence is the evidence of the complainant on the matter, uncontested by sworn evidence." (Our underlining.)

We have been unable to find any basis to support the view that is expressed in the underlined passages. There is of course an important ethical obligation upon counsel not to put forward any allegation of fact unless it is within his or her instructions that the fact is true. Boulton (Conduct and Etiquette at the Bar - 6th ed. pp. 78-79) puts the duty this way:

"If an accused person instructs his counsel that he is not guilty of the offence or offences with which he is charged but decides not to give evidence upon his trial, it is nevertheless the duty of counsel to put his defence before the Court to the extent, if necessary, of making positive suggestions to witnesses."

"Questions which affect the credibility of a witness by attacking his character, but are not otherwise relevant to the actual enquiry, ought not to be asked unless the cross-examiner has reasonable grounds for thinking that the imputation conveyed by the question is well-founded or true."

Similar propositions are expressed in Harrison and Williams Legal Profession in Queensland (2nd ed.) p. 82, in the Code of Conduct of the Bar of England and Wales adopted by the Bar Council on 27 January 1990, para. 610, and in Gowans Victorian Bar Professional Conduct Practice and Etiquette p. 74.

No particular significance is attached in any of the above to the way in which the facts or propositions may be put, and it is not suggested that the use of the word "put" carries with it any additional obligations.

Fine judgment may sometimes be involved in counsel deciding whether a particular proposition lies within instructions, and the need for care in doing so is underlined in R. v. Robinson (1977) Qd.R. 387, 394 which holds that instructions may be inferred from the questions. That however has nothing to do with the present suggestion that there is an additional obligation to call a witness if counsel uses the word "put". We do not consider that the form of words used in putting, suggesting, saying, or otherwise presenting the facts which counsel has been instructed are true, have any particular effect on the question whether the accused will when the opportunity is given call evidence to that effect. Our view is consistent with what is contained in statements of the general counsel of the Bar published in the annual statement of 1965 and reproduced in Halsbury's Laws of England 4th ed. Vol. 3 paras. 1139 and 1140.

"counsel is entitled to put questions suggesting fraud, misconduct or the commission of a criminal offence, even though he is not able or willing to call evidence to support his allegation, if he is satisfied that the matters suggested are part of his client's case and he has no reason to suspect that they are put forward only to impugn the witness's character."

"If the accused person instructs counsel that he is not guilty but decides not to give evidence, it is nevertheless counsel's duty to put the defence before the court to the extent, if necessary, of making positive suggestions to other witnesses."

It would be highly inconvenient if there were a rule such as that which the learned trial Judge described, because the decision whether or not to call evidence is ultimately that of the accused, and the exigencies of criminal trials may frequently require such a decision at the very last moment. The intention to give evidence may change from time to time as a trial progresses.

We therefore consider that the above direction was erroneous. But what was its effect on the trial? In response to a request for re-directions, His Honour withdrew the suggestion.

"Members of the jury, for the purposes of your deliberations, totally disregard my comments when I referred to counsel saying, 'I put it to you'. The situation is: whether counsel uses the words, 'I put it to you' or 'I suggest to you', or asks a general question, the situation is that at the end of the Crown case the accused is asked, 'Do you want to go into the witness-box and given evidence yourself? The choice is yours and yours alone.' And if he says, 'No', no adverse inference to him may be drawn. He would know that, his counsel would advise him that if he doesn't give evidence no inference adverse to him may be drawn. So whatever wording is used in questioning, the decision remains the accused's and that decision is not made or given until he is called on at the end of the Crown case. He elected not to give or call evidence and no inference adverse to him may be drawn. So it's probably one matter - and not a particularly important matter in the melting pot - but please disregard it."

In the light of this counsel for the appellant was driven to submit that the harm in the original statement was such that it could not effectively be eliminated, and that the prejudice would inevitably remain. The worst reflection, from the accused's point of view, would be that the jury might think that he had originally told his counsel that he would be giving evidence, and later changed his mind. It is preferable that trials be conducted free from that sort of speculation, but this was retracted. In the end it should be seen as without sufficiently prejudicial effect to justify thinking that it might have produced any effect upon the result.

The associated question remains however whether the making of these remarks may have watered down the effect of the other directions that no adverse inference was to be drawn from the fact that he did not give evidence. Whilst there was no express suggestion by the learned trial Judge of that kind, the directions included:

"The accused is not obliged to give evidence or to call evidence. No inference, adverse to him, may be drawn if he does not. But if he elects to follow the course that he did, of having all sorts of suggestions put to the complainant, and elects not to give sworn evidence, the sworn evidence remains uncontested and suggestions not agreed with are not evidence."

The direction is a little curious in that the juxtaposition of "having all sorts of suggestions put to the complainant" may have a diluting effect, but the passage as a whole is sustainable. It is as if His Honour pulled back from the brink of a misdirection. The learned trial Judge gave acceptable directions on impermissibility of adverse inference both before and after the challenged passage, and also much later in his summing up when he returned to the subject in these terms.

"In this trial, the accused elected not to give or call evidence. He is entitled to elect not to give or call evidence, to remain in the dock and submit to you, 'You could not be satisfied of my guilt beyond reasonable doubt.' By his adopting that course, no inference adverse to him may be drawn. He is entitled to adopt the course that he has and that is to say to the Crown, 'You prove my guilt beyond reasonable doubt.' And as I said, by his adopting that course, no inference adverse to him may be drawn."

All this would be undermined if, at the end of the case, the jury had been left with the impression that there was something surprising about the fact that the accused did not give evidence. However on analysis, this was not the effect of the misdirection, and it cannot be said that the jury was in the end misdirected on the question of the accused's right not to give evidence.

The other ground of appeal is principally to the effect that the directions as a whole tended to reverse the onus of proof. It is true that at one point His Honour said "you have to decide whether she is a person of such dishonesty, such unreliability that she made it up herself or her mother has put her up to it", and that His Honour repeated at some considerable length Crown submissions (as Crown submissions) which asked whether the complainant was sufficiently malicious to make up a story of this kind, and "what a wicked person she would be" if she did so. Trial Judges must be careful to avoid putting the issue along the lines "which side is right?", and statements should not be made to the jury which suggest that unless satisfied that the complainant was a liar they should convict (R. v. G (C.A. 132 of 1993, 30 July 1993).

Taken in isolation, the passage referred to in the ground of appeal is susceptible of producing such an effect. However the summing up needs to be looked at as a whole, and it reveals many passages in which the question was posed correctly, including the following:

"I have failed in my function if I cannot get you on the right tram in relation to what this case is. And this case is, in effect: Do you accept, beyond reasonable doubt, the complainant as credible and reliable? She is the Crown witness."

"It is a live issue before you, whether she's made it up out of malice, vindictiveness or whatever reason or whether she's been put up to it by someone else like being put up to it by mum - they're all matters you'll throw in the melting pot, but the one consideration is: the only evidence on the matter comes from the complainant on the five counts. Are you satisfied beyond reasonable doubt that she's credible and reliable in relation to that matter?"

"If however, your view of her credibility was: you say, 'I'm not satisfied beyond reasonable doubt that she's credible and reliable.', it would seem then in those circumstances, you would acquit of all five charges."

Counsel for the appellant submitted that the summing up, taken as a whole, favoured the Crown, and this seems to be so. However it was not submitted that this went so far as to constitute undue judicial intervention or to exceed the bounds of legitimate judicial comment. The point was made to put into context the submission that the jury may have been encouraged by His Honour to address the wrong ultimate questions. We do not think that this was the effect of the summing up.

I have had the advantage of reading the reasons for judgment of the President and Thomas J in which there is to be found a full explanation of the issues which arise and the relevant facts; I gratefully adopt both.

As their Honours' reasons explain, a question arises whether directions the trial judge gave, relevant to the conduct of the appellant's case by his counsel, vitiate the trial. The relevant passage, which is quoted in full in the reasons of the President and Thomas J, included a statement that:

"...if counsel puts something to a witness, he only does it in a situation in which he knows or is confident that what he has put will be supported by evidence".

The implication of the passage is that there was an oddity in the conduct of the case by counsel of the accused in that one would have expected, since matters were positively put to the complainant, that they would be sworn to by the appellant, on whose instructions the cross-examination proceeded.

In my opinion it is necessary to consider whether in circumstances of this kind it is right for the judge to invite the jury to draw an inference from the way in which counsel framed questions in cross-examination. In the present case the inference might have been that counsel had not conducted the case properly or - more damagingly - that the appellant had changed his instructions; that is, that the appellant had originally told his counsel that he would give evidence, but changed his mind.

In Robinson [1977] Qd.R. 387 Dunn J, with whom the other members of the Court of Criminal Appeal agreed, discussed the possibility of evaluating evidence by comparing it with cross-examination which preceded it and which was presumably based on instructions. His Honour remarked:

"...the instructions may be inferred from the questions. If there is a discrepancy in a significant particular...between questions based on instructions as inferred and the evidence of the person from whom the instructions must be taken to have come, it seems to me to be quite permissible for a judge to ask the jury to have regard to the discrepancy in evaluating the evidence". (394)

The present is an analogous problem: assuming that there was a lack of concordance between counsel's mode of questioning and the appellant's having given no evidence, the question is whether the jury should have been invited to draw from that circumstance inferences damaging to the appellant or his counsel.

The propriety of the judge's commenting upon an accused's counsel's failure to put in cross-examination allegations subsequently sworn to in the accused's case was discussed in Manunta [1989] SASC 1628; (1990) 54 S.A.S.R. 17. King C.J. remarked:

"It is legitimate, of course, to draw appropriate conclusions from counsel's failure to put in cross-examination some matter to which his client or his witnesses subsequently depose. It is a process of reasoning, however, which is fraught with peril and should therefore be used only with much caution and circumspection. There may be many explanations of the omission which do not reflect upon the credibility of the witnesses. Counsel may have misunderstood his instructions. The witnesses may not have been fully co-operative in providing statements. Forensic pressures may have resulted in looseness or inexactitude in the framing of questions. The matter might simply have been overlooked. I think that where the possibility of drawing an adverse inference is left to the jury, the jury should be assisted, generally speaking, by some reference to the sort of factors which I have mentioned. Jurors are not familiar with the course of trial or preparation for trial and such considerations may not enter spontaneously into their minds". (23)

Those views were adopted by Gleeson C.J. in Birks (1990) 19 N.S.W.L.R. 677 at 690, 691 in reasons with which McInerney J. agreed. Gleeson C.J., dealing with an alleged breach of the rule in Browne v. Dunn (1893) 6 R 67, remarked:

"It is one thing to say that the interests of fairness to a witness or a party require observance of the rule, and that some interests of fairness may well produce various consequences if the rule is not observed. However, the rule is often invoked for the purpose of entering into another area of discourse, that is to say, the drawing of inferences by a tribunal of fact...It is one thing to remark upon the fact that a witness or a party appears to have been treated unfairly. It is quite another thing to comment that the evidence or unsworn statement of a person should be disbelieved, perhaps as a recent invention, because it raises matters that were not put in cross-examination to other witnesses by that person's counsel. Depending upon the circumstances of the case either or both of those comments may be available: see, eg, R v. Robinson [1977] Qd.R. 387 at 394. However, especially in a criminal trial, there are considerations which may indicate the need for caution."

The principle to be derived from these authorities may be broadly stated as being that a failure by the accused's counsel to put in cross-examination a matter subsequently sworn to in the accused's case may be the basis of an inference adverse to the accused; but if the jury is to be invited to draw such an inference, there is a need for caution and a need to draw attention to explanations of the cross-examiner's conduct not involving an inference adverse to the accused. Where the basis of the possible inference is that in the judge's view the mode of cross-examination adopted was such as to suggest that the accused would be called, there is even greater need for caution than that which was held to exist in the cases which I have discussed.

It is my respectful opinion that the trial judge was in error in thinking that counsel may not "put" an allegation in cross-examination, unless there is then an intention to call evidence to support the allegation put. But even if there had been some substantial ground for the inference that counsel had intended to call evidence to support what was put in cross-examination, in my opinion the trial judge should have drawn attention to other possible explanations of the conduct thought to be the basis of the inference.

I do not find it necessary, in the present case, to discuss the ethical issues further than by saying that in my understanding of the practice of the bar it is not improper to put allegations positively in cross-examination without any intention of calling evidence of the truth of those allegations.

The next question is whether, in the context of the whole summing-up, the passage in which the judge suggested the possibility of an adverse inference from the use of the expression "put" damaged the accused in a substantial way, so as to require a new trial on that aspect. My opinion on that is adverse to the appellant, and for the reasons given by the President and Thomas J.

I also agree with the views of the President and Thomas J with respect to the submission that directions were given which tended to reverse the onus of proof. In G (C.A. No. 132 of 1993, unreported, 30 July 1993) Davies JA referred to a part of a summing-up as follows:

"Those passages could have led the jury to think that, unless they were satisfied that the complainant was a liar, they should convict. The learned trial judge did not...indicate that there was a third possibility; that they could not be satisfied beyond reasonable doubt that the complainant's story was true".

It seems to me unwise to sum-up, even by way of alluding to submissions made by the Crown, in such a way as to imply that to decline to act on a complainant's evidence is to treat the complainant as a liar or wicked person. Nevertheless, I concur with the conclusions of the President and Thomas J on this point and I do so substantially for the reasons their Honours give.