Tulic v The Queen

SPENDER J: 1 The court has reached a clear view as to the disposition of this appeal. I will ask Dowsett J to give the first judgment.

DOWSETT J: 2 The appellant, together with his de facto wife, Tracey Lee Smart, stood trial in the Territory on an indictment charging three counts, the first being recklessly causing grievous bodily harm to a child, the second being an alternative count of assault occasioning bodily harm, and the third count being failure to provide appropriate medical attention. Both were convicted on the third count. The appellant was also convicted on count one. The co‑accused was acquitted on both counts one and two. The appellant appeals against his convictions. 3 Smart and Tulic had a young daughter, only days or weeks old, who was living with them at all relevant times. She was found to be suffering very serious injuries, including numerous fractures of ribs, arms and legs. In those circumstances, it was the Crown case that either or both of them had inflicted the injuries. There was also the possibility that one had aided the other. 4 The evidence fell into four categories. The first category was from family and friends who had visited on relevant occasions. Generally, they had not observed anything irregular or untoward, either about the welfare of the child or about the conduct of her parents towards her. The second category of evidence was medical evidence as to the child's injuries and as to the likely age of those injuries. For present purposes it is sufficient to say that the evidence indicated that the injuries had been inflicted over a period of some days, if not weeks. They showed signs not consistent with all having been inflicted at the same time. The third category of evidence was evidence from the co-accused. She said that she had not caused the injuries to the child. She said also that as far as she knew, the appellant had not done so. The fourth category of evidence, if that is what it should be called, was the transcript of the results of covert surveillance of the home shared by Smart and the appellant after the child's injuries had been discovered and were being investigated to the knowledge of Smart and the appellant. The appellant was heard to tell the co-accused that she should not say anything to the police which might incriminate him. Although the conversation was couched in rather vulgar terms, it was not necessarily incriminatory. 5 As I have said, Smart gave evidence. Where one of two co‑accused gives evidence and the other does not, problems arise for a trial judge in designing the appropriate directions as to the use of such evidence and as to the approach by the jury to the fact that one co-accused has not given evidence. The present appeal focuses on that problem. 6 Three grounds of appeal were argued. The first was that the learned trial judge erred in failing to direct the jury as to the reasons why an accused person may elect not to give evidence. The second was that his Honour erred in failing to direct the jury that the accused was presumed to be innocent. The third, enunciated as a separate ground, was that the verdict is unsafe and unsatisfactory in the administration of justice. However counsel informed us that ground three reflects the appropriate outcome should the appellant be successful on one of the other two grounds. It was not suggested that we should examine the evidence with a view to determining whether or not it was sufficient to support the verdict. The appellant accepts that the evidence was sufficient in this respect. Thus the only question for consideration is the adequacy of the charge in so far as it dealt with the questions of onus of proof and the accused not having given evidence. 7 It is appropriate at this stage to set out at some length the relevant parts of the charge. I start at p 248 of the record:- I should tell you immediately what is a fact. A fact is something which answers the question, "What did happen?" If it is an answer to the question, "What did happen?", it is a fact to be determined by you. That is your role. So I turn to the first direction of law and you have already heard a good bit about it. The Crown brings these charges. The Crown must prove them. And the standard of proof is proof beyond reasonable doubt. That means that the Crown will succeed in proving one of the counts or all of the counts against both or either accused if you are satisfied beyond reasonable doubt that that count is made out in relation to one or the both accused. If you are not satisfied beyond reasonable doubt you must find the accused not guilty and the Crown will have failed to satisfy you. To do that you take account of all the evidence and indeed you take account of the arguments that have been advanced to you this morning from the bar table. It is all designed to give you the utmost assistance, remembering that the respective counsel represent respective interests. The Crown represents the community. The interest of the community is to see that people who commit crimes are brought to justice and are punished. The interest of the accused obviously is to put the Crown to proof and to demonstrate that they have not committed the offence and you could not be satisfied to the requisite standard. Remember the standard is proof beyond reasonable doubt. So if I say anything from now on where I use the words "You have to be satisfied" or "You have to find" or anything like that, then unless I say something to the contrary it means you have to be satisfied beyond reasonable doubt. 8 At p 250 the following observations appear:- The accused Tracey Smart has given evidence. She too is a witness in the case and as has been put to you, she did not have to give evidence but she did give evidence. She exposed herself to cross-examination and you have had a good look at her. The accused Tulic did not give evidence. That is his right. He is not obliged to give evidence and you should not draw an adverse inference against him by reason of the fact that he did not go into the witness box and give evidence. You have to make a judgment about the witnesses that you have seen and heard, including the accused Tracey Smart, and this is where your worldliness, your knowledge of mankind, your experience of life, comes into play. 9 At p 252, in connection with a direction as to circumstantial evidence, his Honour said:- Before a jury can convict on circumstantial evidence, it may only do so if the guilt of the accused is a rational explanation of what happened and it is the only rational explanation, an explanation which is inconsistent with innocence. The accused is entitled to be acquitted if you can find a rational explanation of the circumstances consistent with innocence. He or she cannot be convicted unless there is no other inference open which is rational in the circumstances. So that is the way that you have to look at circumstantial evidence. You have to look at the whole of the circumstances and see whether the particular allegation is made out. 10 One of the grounds of criticism is that his Honour did not, at any stage, adopt the well-known rubric concerning the presumption of innocence. It is said that as a matter of law it was necessary that such a direction be given. It is also said that this failure was exacerbated in the present case by the remark made at p 249 to which I have already referred, namely:- The interest of the accused obviously is to put the Crown to proof and to demonstrate that they have not committed the offence and you could not be satisfied to the requisite standard. 11 It was perhaps unfortunate that his Honour used the words "and to demonstrate that they have not committed the offence". In context, it appears to have been a reference to the function of defence counsel rather than to the onus of proof, but by itself, it could be taken as an invitation to the jury to proceed upon the basis that the accused bore some onus. However the charge demonstrated clearly that the onus was upon the Crown to prove its case and to prove it beyond all reasonable doubt. In that context, the only reasonable inference that could be drawn from the passage to which objection is taken was that the accused might, if he or she chose, seek positively to prove matters or to attack the Crown evidence. It would not have detracted from the direction that the onus of proof was on the Crown. I have no doubt that the jury would have correctly understood the whole passage. It is important to note that the words in question followed the general direction to which I have referred and preceded both the direction as to adverse inferences from failure to give evidence and the favourable direction as to circumstantial evidence, all of which would have highlighted the considerable onus placed upon the Crown. The words complained of would not have detracted from that overall effect. 12 I am reinforced in this view by the fact that counsel heard the summing up as a whole. It was relatively short and to the point, and no criticism or complaint was made at the time. This leads me to infer that counsel considered that the overall effect of the summing up, as delivered, was appropriate and in accordance with law. In those circumstances I would be reluctant to criticise the charge by minute analysis of language. Words in the written form very often take on a much greater significance than they bear when delivered orally, and a charge is an oral communication. This must be kept in mind when assessing the overall impact of any summing up. It is unlikely that the jury would have puzzled over the words, "to demonstrate that they had not committed the offence". In the context in which they were used, which strongly emphasized the onus being upon the Crown, the use of those words, by themselves, was not a fatal flaw. 13 As to the broader question, whether or not the learned trial judge ought specifically to have adopted the "presumption of innocence" formula, it seems that there is no authority which suggests that such is essential. The Court of Criminal Appeal (NSW) in R v Reeves (1992) 29 NSWLR 109, suggested that it was desirable, and by and large, I agree with that. In Palmer (1992) 64 ACrimR 1, the same Court, although differently constituted, indicated that it did not consider it necessary that such a formula be used, again a view in which I concur. In the absence of any compelling authority to the effect that one must both direct as to the onus of proof being on the Crown and speak of the presumption of innocence, I would be reluctant to compel what might be described as an exercise in redundancy. In the circumstances, I see nothing in this complaint. As I have said, the overall effect of the charge would have informed the jury, correctly and simply, as to the onus of proof. 14 The second ground of appeal is of somewhat more interest, concerning the appropriate direction to be given where an accused does not give evidence. That was a very difficult area in this case because Smart gave evidence. The evidence suggests strongly that either Smart or the appellant was the offender. Anything said which favoured one would, quite likely, be unfavourable to the other. In a trial of one accused, it may often be appropriate for a trial judge to couch his or her directions in a way which allows the accused the benefit of any ambiguity or uncertainty. That course cannot be taken where a remark concerning the conduct of the case by one co-accused may invite speculation about the guilt of the other. It is necessary that the trial judge maintain balance between the interests of both accused, whilst performing his or her legal duty. The fact that the appellant had not given evidence invited comparison with the case of the co-accused, who had. It is difficult to believe that the jury would have taken other than a less favourable view of the appellant in those circumstances. Thus it was probably better, from the appellant's point of view, that his Honour say less rather than more on the subject. Conversely, had his Honour sought to negative the effect of the appellant's not having given evidence, the jury may have concluded that he was directing their attention to Smart rather than the appellant. This may have been unfair to Smart. 15 Be that as it may, it seems to me that there was no error in what his Honour said. A jury may not draw adverse inferences against an accused from the fact that he did not give evidence. This means that gaps in the Crown case cannot be filled by any adverse inference which might be drawn from that fact. However it is clear from the decision of the High Court in Weissensteiner v The Queen (1993) 178 CLR 217 that there are circumstances in which the fact that an accused has not given evidence may bolster the Crown case. Broadly speaking that will be so where the Crown case is primarily circumstantial. It may be appropriate in those circumstances to tell a jury that they may more readily draw an inference of guilt where an accused person, who presumably has knowledge of relevant facts, has chosen not to share that knowledge with them. 16 The appellant submits that Weissensteiner and a number of other cases, in particular the decision of the Court of Criminal Appeal (NSW) in OGD (1997) 94 ACrimR 151, establish three "principles". The first is that to which I have referred concerning adverse inferences. The second is that established in Weissensteiner as to appropriate use of the failure of an accused to give evidence. The third is that a court ought direct a jury that there may be numerous reasons for an accused person not giving evidence. It should be noted that Gleeson CJ, in enunciating these propositions in OGD at 157, commenced with the words, "… if anything at all is to be said about a failure to give evidence …", suggesting that his Honour was not intending to prescribe a procedure to be adopted in all cases. 17 It is said that these decisions necessitated a direction in the present case in accordance with the third principle. Reliance was expressly placed on the following passage from Weissensteiner at 228 (per Mason CJ, Deane and Dawson JJ):- 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. 18 There are other passages in that case to similar effect, and there are similar passages in OGD. However I am firmly of the view that those passages are concerned with the circumstance in which a trial judge proposes to invite the jury to use the failure to give evidence in the way permitted by Weissensteiner, namely as strengthening inferences available from the Crown case. If such a direction is to be given, the jury should be warned by the trial judge to take into account possible reasons, other than guilt, for not giving evidence. It is only if the jury is invited so to use the failure to give evidence that it can be necessary to warn of other possible reasons for not giving evidence. If, as in this case, no such direction is given, and the jury is told that no adverse inference is to be drawn from the fact that the appellant did not give evidence, there is no rational reason for suggesting a consideration of his reasons for not doing so. There is nothing in this ground of appeal. It follows also that there is nothing in the assertion that the conviction is unsafe and unsatisfactory in the administration of justice. 19 For those reasons I would dismiss the appeal.