Regina v Taufua

Regina v Taufua - [1999] NSWCCA 205 - NSWCCA 1999 case summary — Zoe

[28]

23 It is convenient, at this stage, to note certain passages from the summing up. His Honour gave a conventional direction in relation to the burden of proof in the following terms: "The direction that I give you now is usually regarded as the single most important direction given in a criminal trial. It is certainly one which you must bear in the forefront of your mind during all the time you are considering your verdict, and the direction is this. That at all times that burden lies on the Crown to prove the guilt of the accused, and to prove that beyond reasonable doubt. An accused is not required to demonstrate his innocence. In fact you are not concerned with innocence at all, you are concerned simply with the question, has the Crown proven the guilt of this accused beyond reasonable doubt or not? And if there is in your mind at the time you have considered all the evidence and the arguments, a reasonable doubt about his guilt, then he must be given the benefit of that doubt, you must acquit him, deliver a verdict of not guilty because that is the system of law under which we operate." 24 His Honour gave a Jones v Dunkel direction, as requested by the Crown and opposed by the applicant, in the following terms: "Further evidence was given about some gentleman named David Brien who was said to be a man doing time for six or seven armed robberies and who was prepared to take the rap. That is, accept the blame for this one in lieu of the accused. Well, neither of those men came forward to make those claims. Mr Price did not come to say the accused was not his cohort and Mr Brien did not turn up to say that it was in fact him who was the robber. The business of Mr Price and Mr Brien. I should tell you just this about it. You should not speculate about what they could or would have said had they been called. We simply do not know and it would be unfair for you to guess at what they may have said. If, however, you are persuaded that you expected to hear from them; that you thought they could and should have been called by the accused to give this evidence, and they are not called and you are not given any reasonable explanation as to why they are not called, then I stress you do not speculate about what they may have said but you are entitled to infer, if you wish, that what they would have said would not have advanced the case for the accused. Other than that, you put them to one side and concern yourself with them not at all".

[36]

33 The judgment of the Chief Justice in Buckland then warned (at 459) of the need to exercise a marked degree of caution as to whether a Jones v Dunkel direction should be given. The Chief Justice said: "The foregoing comments were made in the context of civil litigation. In criminal trials, there are some situations in which comment is expressly precluded by statute, eg the accused, or the husband or wife of the accused; Crimes Act, s 407 (2). In general, however, this rule of practice applies equally in criminal as in civil proceedings. In criminal proceedings, however the making of a comment or the indication of the available inference will be attended by a marked degree of caution inasmuch as in many cases the absence of a witness either for the Crown or the accused might well be explicable upon grounds not readily capable of proof. If it is suspected that there may be some valid reason for a witness not being called, then, in a criminal trial in particular, a careful appraisal is requisite before commenting on the absence of that witness either in address or in the summing up." 34 Recent cases in this Court tend to indicate that this warning has not received the respect which it merits. 35 The Chief Justice then went on to deal with the particular answer given by the trial Judge in the following manner: "Returning to the facts of the present case, I have reached the conclusion that the terms in which his Honour answered the jury's questions were such as to leave the jury with an erroneous impression. To say that "the evidence" of the missing witnesses "would not have been favourable to the accused" postulates that the missing witnesses would have been able to give admissible evidence. It also presupposes that the accused was the party who would normally have been expected to have called Mr and Mrs Farr. But, even placing aside these two preliminary matters, there is to my mind a significant possibility of differing meanings attaching to a comment along the lines that "nothing which these witnesses could say would assist the accused" (which would have been a legitimate proposition) on the one hand, and, on the other hand, to say, as did the judge, that their "evidence would not have been favourable to the accused". An observation in these last-mentioned terms proceeding as it does without any preliminary discussion as to the justification for expecting the accused to call these witnesses, and, assuming as it does that admissible and relevant evidence would be forthcoming from them, is capable of leaving the jury with the impression that it can justifiably infer that their evidence would positively have been unfavourable to the accused."

[37]

36 In Weissensteiner v The Queen (1993) 178 CLR 217, the majority of the High Court (Mason CJ., Deane and Dawson JJ) approved a direction in the following terms: After telling the jury that the Crown had the onus of establishing the accused's guilt beyond reasonable doubt, that the accused did not have to prove anything, that he was under no obligation to give evidence, and the Crown case depended on the jury inferring guilt from a whole collection of circumstances, the judge said that such an inference might more safely be drawn from the proved facts where an accused elected not to give evidence of relevant facts which must be within his knowledge. 37 Particularly noteworthy is the following passage from the majority judgment (at 227-228). "We have quoted rather more extensively from the cases than would otherwise be necessary in order to show that 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. Of course, an accused may have reasons not to give evidence other than that the evidence would not assist his or her case. The jury must bear this in mind in determining whether the prosecution case is strengthened by the failure of the accused to give evidence. Ordinarily it is appropriate for the trial judge to warn the jury accordingly. Not every case calls for explanation or contradiction in the form of evidence from the accused. There may be no facts peculiarly within the accused's knowledge. Even if there are facts peculiarly within the accused's knowledge the deficiencies in the prosecution case may be sufficient to account for the accused remaining silent and relying upon the burden of proof cast upon the prosecution. Much depends upon the circumstances of the particular case and a jury should not be invited to take into account the failure of the accused to give evidence unless that failure is clearly capable of assisting them in the evaluation of the evidence before them." 38 The learned trial Judge summed up in the instant matter on 3 December 1997 and therefore did not have the advantage of the judgment of this Court in John Paul Newland (1997) 98 A Crim R 455, which was delivered 5 December 1997. The judgment of Gleeson CJ (with whom McInerney and Abadee JJ agreed) is very instructive insofar as the problems which arose in the present trial are concerned.

[57]

49 One asks then upon what basis then could the jury have reasonably been required to conclude that the applicant should have called Brien. In this regard (if I may respectfully say so) they received no assistance. If this were considered to be, by the trial judge, a potential Jones v Dunkel situation, the jury should have been advised that it would have been open to Brien, if called, to object to answering questions upon the basis that the answers may incriminate him. Further that because of his incarceration at the time of the arrangement he could well be considered by them to be an unreliable witness. Generally speaking, however, it seems to me in the context of this case that there was quite insufficient material before his Honour upon which he could conclude that the Crown was entitled to a Jones v Dunkel direction in relation to Brien. There were too many complicating factors to allow a just conclusion by the jury that they would have expected the applicant to call Brien. In any event it was the Crown which introduced Brien into the trial. His name was raised by two Crown witnesses whom the defence alleged were discreditable. The Crown did not call him to provide support for their evidence. In these circumstances there was no basis, in my view, for the defence to be expected to assume the burden of calling him. Such a proposition would involve an inversion of the onus of proof. 50 As indicated earlier, the applicant's stance at his trial was merely to put the Crown to proof of its case and to seek to undermine, through cross-examination, the strength of that case. In other words the applicant did not seek to raise by the tender of evidence, an affirmative defence or answer to the Crown case. In these circumstances it was not a legitimate forensic proposition for the Crown to seek a Jones v Dunkel direction against the applicant for not calling Brien, particularly taking into account the complex directions which would have been required from the judge if he assented to that course.

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