R v Vannatter [1999] QCA 104

3. that his Honour erred in law and in the exercise of his discretion in not allowing the appellant's counsel to lead or tender evidence of the appellant's statement to his solicitors, for the purpose of rebutting an allegation of recent invention by the Crown prosecutor; and

(a) failing to direct the jury in a manner consistent with the need for caution in drawing inferences as to credibility of the appellant from the manner of the conduct of the defence; and

(b) failing to direct the jury that no adverse inference could be drawn from the appellant's silence upon his arrest.

3 The following facts were undisputed. At about 2.30 am on 11 May 1997 a security officer of the Townsville General Hospital, Rix, received information that a male person was acting suspiciously. When investigating this matter on level 5 of K Block he heard an unusual noise on level 4. He immediately walked to the staircase and proceeded downstairs towards that level. When only four steps above it he observed the appellant coming out of the men's change room at that level. That area was closed to all persons after midnight.

4 There was however a conflict as to a conversation which then occurred between Rix and the appellant, a conflict which the jury must have resolved against the appellant. Rix said that, as he approached the appellant, he asked him how he came to be in that area. The appellant responded "I smashed a window". The appellant said that he was at the hospital at the relevant time to visit his father. He was on the third level getting a drink when he heard a window smash. He then ran upstairs to the fourth level and observed glass on the floor. He then ran through the change room where he observed another male running out. He gave chase and when he reached the stairs he was confronted by Rix. He said that when Rix asked him what he was doing he said "Hoy, there's a bloke that just smashed the window".

5 Rix said that the appellant then tried to get away so he apprehended him and escorted him in the elevator to level 3. When they arrived at level 3 the appellant, according to Rix, escaped. He gave chase and tackled the appellant. He was then joined by another security officer and the appellant was escorted to the main entrance where they met police. The appellant admitted attempting to escape but said that that was because Rix assaulted him, which Rix denied.

6 Rix said that, in the presence of the appellant, he informed the police that the appellant had confessed to smashing a window and the appellant said nothing. The appellant denied that any relevant conversation occurred between Rix and the police officer in his presence and Rix admitted in cross-examination that, at the committal hearing, his evidence had been that he did not say anything to the police in the appellant's presence.

7 Mr Carnes, a police officer present on that occasion said that he observed two hospital staff struggling with the appellant at the top of some stairs. He said he spoke to Rix while the appellant was present and Rix informed Carnes that a male person had been walking around the wards, that he challenged him as to what he was doing and that the male stated that he had smashed the door; and that the male then ran away and a chase ensued until he caught him. Carnes said that the appellant was continuing to struggle with security officers during this conversation and made no response to it.

8 After the conference at the main entrance Rix said that he and a police officer returned to the fourth level where Rix observed that a window in the door to the change room had been smashed and the fire extinguisher, which he had earlier observed on the wall, was on the floor beside the door.

9 The appellant was taken to the watchhouse where he supplied an alias and an incorrect date of birth.

10 The case at trial turned on a question of credibility between Rix and the appellant, in particular on whether the appellant made the confession to Rix to which Rix deposed.

11 Both grounds of appeal arise out of two passages in the cross-examination of the appellant by the prosecutor. The first of these, in the context of the arrival of the police at the entrance to the hospital, was as follows:

"You were given ample opportunity to speak to the police at that time? - Yes.

But you didn't tell them that you weren't the one that broke the - smashed the window? - Well I asked for a record of interview.

Are you making this up as you go along? - No I'm not.

Well that was never put by your defence counsel .. - No, I know.

.. to the police officer that you asked for a record of interview, was it? - No.

And presumably if Mr Griffith had known about that he would have suggested such a thing, put such a thing? - I said it in the committal.

That - you said it in the committal? - No, I didn't say it in the committal, my solicitor did.

You asked for a record of interview you say? - Yes, I did.

Well, you were taken to the watchhouse? - That's where I asked.

At the watchhouse for a record of interview? - .. At the watchhouse for a record.

You had ample opportunity before the watchhouse to tell the police that you weren't the one that smashed the window? - I suppose.

You'd have to agree with that, wouldn't you? - Yeah, I agree with that, yeah.

But at the watchhouse on - you say that it was at that time you asked for a record of interview? - Sorry?

It was at the watchhouse, you say, that it was that - at that time you asked for a record of interview? - Yeah, I asked, yeah.

I suggest that's simply not the case? - Well, it's not."

The prosecutor then returned to the topic at the end of that cross-examination:

"You had ample opportunity to tell the police your version at the time? You've already agreed with that? - Yes."

12 The questions should not have been asked and the appellant's counsel could have objected to them but did not do so. The cross-examination suggested that previous silence about a defence raised at the trial provided a basis for inferring that the defence was a new invention or was rendered suspect or unacceptable.[1] It is not clear why no objection was made to this cross-examination which continued for some time. The admission of this evidence is not a ground of appeal. But the failure of the trial judge to direct the jury that no adverse inference should be drawn from it is the subject of ground 4(b). It is convenient to discuss this ground first.

13 The first thing that should be said about this ground is that no such direction was sought. Nor did his Honour refer to either of the above passages in his summing up. However he did, in summarizing the Crown case, refer without objection by defence counsel, to Mr Rix's evidence that his conversation with the appellant was repeated to the police officer in the presence of the accused "and the accused did not say anything about it or demur to it". It was not submitted that either of the passages of cross-examination was relied on by the prosecutor in her address.

14 It is not difficult to understand why, these passages not having been referred to in addresses or summing up, counsel for the appellant might have thought it imprudent, in the appellant's interest, to invite his Honour to remind the jury of them, albeit that such reminder would be accompanied by a direction that no adverse inference should be drawn from the appellant's failure to volunteer to the police what his defence then was. At that stage the question for the appellant's counsel, in this respect, was one of minimizing whatever damage might have been caused by permitting the improper line of questioning in the above passage. To have nothing said about it in address or summing up might not have been an unreasonable course in the appellant's interest.

15 However the notion which the jury may have had from these passages of cross-examination that the accused's failure to volunteer his defence to the police officer at the hospital permitted the drawing of an inference of guilt was, in our view, reinforced by the passage which we have quoted from his Honour's summing up. Even if Mr Rix was not a "person in authority" so that he and the accused were speaking "on even terms",[2] a proposition which we would not accept, his Honour's statement, without qualification, might have led the jury to conclude that they could also draw an adverse inference from the appellant's failure to volunteer his defence to the police. In our view his Honour should have made clear to the jury that they could not draw any inference adverse to the appellant from his failure to say anything when, on Rix's and Carnes' versions, Rix told Carnes in the appellant's presence of the appellant's confession, or from his failure at any time to volunteer to the police his version of events.

16 It is true that the Crown case appears to have been a strong one in the sense that, though the question was one dependant on findings of credit, there were strong reasons for disbelieving the appellant's evidence and believing that of Rix, supported as it was by that of Constable Carnes. It is also true that the appellant's counsel failed to seek any redirection. Nonetheless we could not be satisfied that the admission of this evidence, reinforced as it was by his Honour's statement in summing up, without any such direction, did not create a substantial risk of a miscarriage. We would therefore on that basis, allow the appeal, set aside the conviction and order a new trial.

17 We should add, however, that we would not have allowed an appeal on either of grounds 3 or 4(a) based as they were on the failure of the learned trial judge to permit the appellant to prove a statement which he gave his solicitor in which he said that, at the watchhouse, he requested a record of interview, and on the failure of the trial judge to direct the jury on the inference which should be drawn from the appellant's evidence about that request in the light of the appellant's failure to cross-examine or adduce evidence-in-chief on that issue. The appellant's evidence was that he asked for a record of interview at the watchhouse and that, at the committal, his solicitor said that the appellant had asked for a record of interview at the watchhouse. The second of those, which could no doubt have been easily verified, does not appear to have been questioned in the prosecutor's cross-examination. Yet it was only that fact which the statement could have supported; it would have proved no more than that, before his committal, the appellant told his solicitor that, at the watchhouse, he asked for a record of interview. Tendering of the statement would not therefore have materially advanced the appellant's case.

1 The issues in this appeal against conviction are explained in detail in the joint reasons of de Jersey C.J. and Davies J.A. which I have had the advantage of reading. The principal question is, to put the matter generally, whether the trial was conducted in such a way as to respect the rules by which the law protects the right of silence. The only factual issue in the case was whether, as the Crown alleged, the appellant smashed a window. The witness Rix said that the appellant admitted to him that the appellant had done so. Rix also said that he told a police officer in the appellant's presence that the appellant smashed the window. In the appellant's evidence, he denied all this and said that he had told Rix that "there's a bloke that just smashed the window". The appellant swore that he heard a window smash and, by running around the building, found glass on the floor and saw a person (whom he described) running away.

2 In cross-examination, the prosecutor put to the appellant that he had ample opportunity to speak to the police when they arrived at the place where the alleged offence was committed, a proposition with which the appellant agreed. It was then put to him that he did not tell the police that he was not the one who broke the window and the answer was, "Well, I asked for a record of interview". Further cross-examination challenged the appellant's statement about the record of interview and again suggested that there was "ample opportunity" to tell the police the story which he told at trial.

3 In summing-up the learned trial judge, in setting out what he said was the Crown case, referred to Rix's evidence, summarised above, and then added:

"That conversation was repeated later by Mr Rix to the police officer outside the hospital and in the presence of the accused and the accused did not then say anything about it or demur to it".

No complaint was made by counsel for the appellant below, either about the cross-examination to which I have referred or about the passage I have quoted from the summing-up. There was no direct support from the police for Rix's version of events, but a Mr Carnes, a police officer, said in effect that Rix told him in the appellant's presence that the appellant had said that he smashed a door; Carnes added that the appellant made no response to that. The jury might have regarded this, despite the reference to a door instead of a window, as some confirmation of what Rix said.

4 There are two interrelated complaints, one being that the appellant should not have been cross-examined about not having told the police the version he gave at the trial and another that the judge should not have given a direction that when Rix told the police of the admission the appellant had made, he made no response - implying that the lack of response was a relevant point.

5 Petty (1991) 173 C.L.R. 95 is authority against "the denial of the credibility of [a] late defence or explanation by reason of the accused's earlier silence" (101). There is a question about the meaning of "silence" in this context. In Glennon (1994) 179 C.L.R. 1, the applicant Glennon was charged with a number of sexual offences involving various complainants. In respect of one of the complainants, the applicant when interviewed by the police answered some questions but then refused to answer any more. Further detail of the interview between the police and the applicant relating to this complainant can be found in the reasons of the Court of Criminal Appeal: [1993] VicRp 6; [1993] 1 V.R. 97 at 101. At the trial, a cousin of the appellant was called to give evidence that she was sleeping in the same room as the complainant and the appellant at the relevant time and no offence had occurred. The trial judge directed the jury that, in testing the veracity of the defence based on the cousin's evidence, they were entitled to have regard to the fact that it was not revealed to the police. The High Court said that the judge's direction was "clearly erroneous".

6 Glennon makes it clear that the fact that an accused does not completely remain silent, but makes some responses to police questioning, does not exclude the doctrine of Petty. In Petty itself, as was emphasised in Rezk [1993] QCA 379; [1994] 2 Qd.R. 321 at 333:

". . . the appellant Maiden had not previously remained silent about the subject matter of the charge; instead, having been interviewed by the police, he maintained up to trial a version of events that was inconsistent with the defence he later relied on at the trial".

It will have been noticed that in the present case, according to the appellant, he did not entirely insist on the right to remain silent, but volunteered to be interviewed. But it appears that even if the accused to some extent talks about the relevant allegations with police he is entitled to the advantage of the principle in Petty, so long as he does not put forward a story at trial conflicting with one previously told.

7 In Weissensteiner [1993] HCA 65; (1993) 178 C.L.R. 217, the reasons of Gaudron and McHugh JJ. discuss failure to explain, on an accused's part, in terms which do not discriminate between the law applicable to an explanation not advanced at trial and that applicable to one not advanced before trial (242, 245, 246). Reference, with apparent approval, to this discussion in G v. H [1994] HCA 48; (1994) 181 C.L.R. 387 at 402 (27) adds to its authority. I draw attention to the point because it is not immediately obvious why exercise of the right of silence at trial is, as comparison of Weissensteiner with Petty suggests, less vigorously protected than its exercise before trial. But as High Court authority presently stands, it is clear that the Petty principle must be observed. In the present case the judge's direction, given as it was at a trial during which the Crown had repeatedly suggested to the appellant that his failure to advance his exculpatory version earlier made it less credible, was an infringement of that principle which might have affected the verdict. The line of reasoning which commonsense might have suggested to the jury, that if the appellant's story was true he would probably have mentioned it to the police, would have been reinforced by the judge's direction.

8 Subject to the foregoing remarks, I am in respectful agreement with the joint reasons of de Jersey C.J. and Davies J.A. I also agree with the orders their Honours propose.

[1] Petty and Maiden v The Queen (1991) 173 CLR 95 at 99.

[2] Petty and Maiden at 107; Parkes v R (1977) 64 Cr App R 25.