Weissensteiner v The Queen

Weissensteiner v The Queen - [1993] HCA 65 - HCA 1989 case summary — Zoe

[23]

[27]

It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted. And in R v Burdett , a case which was decided before an accused could give evidence on his or her own behalf, Abbott C.J. said [4] : In drawing an inference or conclusion from facts proved, regard must always be had to the nature of the particular case, and the facility that appears to be afforded, either of explanation or contradiction. No person is to be required to explain or contradict, until enough has been proved to warrant a reasonable and just conclusion against him, in the absence of explanation or contradiction; but when such proof has been given, and the nature of the case is such as to admit of explanation or contradiction, if the conclusion to which the proof tends be untrue, and the accused offers no explanation or contradiction; can human reason do otherwise than adopt the conclusion to which the proof tends? R v Burdett was relied upon in Reg v Kops [5] , a case concerning the effect of legislation in New South Wales which in 1891 [6] made an accused person a competent but not compellable witness. It was held by a Full Bench with two dissentients that a trial judge may invite the jury to draw inferences adverse to the accused from the fact that, by not giving evidence, the accused has failed to contradict or explain matters upon which incriminating evidence has been given by the prosecution, and which, if untrue, it must be within the power of the accused to contradict or explain. The two judges who dissented (Innes and Stephen JJ.) did so on the basis that a comment of the kind sanctioned by the majority would virtually compel the accused to go into the witness box although the statute said that the accused was not a compellable witness. An appeal to the Privy Council was dismissed with the observation that [7] : There may no doubt be cases in which it would not be expedient, or calculated to further the ends of justice, which undoubtedly regards the interests of the prisoner as much as the interests of the Crown, to call attention to the fact that the prisoner has not tendered himself as a witness, it being open to him either to tender himself, or not, as he pleases. But on the other hand there are cases in which it appears to their Lordships that such comments may be both legitimate and necessary. 1. (1774) 1 Cowp. 63, at p. 65 [98 E.R. 969, at p. 970]. 2. (1820) 4 B. & Ald. 95, at pp. 161-162 [106 E.R. 873, at p. 898]. 3. (1893) 14 L.R. NSW 150. 4. Criminal Law and Evidence Amendment Act 1891 NSW, s. 6 - now Crimes Act 1900 NSW, s. 407. 5. Kops v The Queen , [1894] A.C. 650, at p. 653.

[58]

It is established as a general rule of evidence, that in every case the onus probandi lies on the person who wishes to support his case by a particular fact, which lies more peculiarly within his own knowledge, or of which he is supposed to be cognizant. This, indeed, is not allowed to supply the want of necessary proof, whether direct or presumptive, against a defendant of the crime with which he is charged; but when such proof has been given, it is a rule to be applied in considering the weight of the evidence against him, whether direct or presumptive, when it is unopposed, unrebutted, or not weakened by contrary evidence, which it would be in the defendant's power to produce, if the fact directly or presumptively proved were not true. Once juries came to know that an accused is a competent witness in his own defence, it was inevitable that they would take account of an accused's failure to testify when his testimony might be expected to deny, explain or answer the case against him. In Kops v The Queen; Ex parte Kops [29] a challenge was made to a summing up in which the judge drew the jury's attention to the accused's right to testify and his failure to exercise it when his testimony might have explained matters naturally within his knowledge and when an explanation would be important in view of the evidence already given. The Privy Council upheld the propriety of the comment, saying: There may no doubt be cases in which it would not be expedient, or calculated to further the ends of justice, which undoubtedly regards the interests of the prisoner as much as the interests of the Crown, to call attention to the fact that the prisoner has not tendered himself as a witness, it being open to him either to tender himself, or not, as he pleases. But on the other hand there are cases in which it appears to their Lordships that such comments may be both legitimate and necessary. 1. (1820) 4 B. & Ald. 95, at p. 140 [106 E.R. 873, at p. 890]. 2. [1894] A.C. 650, at p. 653.

[62]

An accused person is never required to prove his innocence: his silence can never displace the onus that is on the prosecution to prove his guilt beyond reasonable doubt. A failure to offer an explanation does not of itself prove anything. Nor does it, in any strict sense, corroborate other evidence. But the failure of an accused person to contradict on oath evidence that to his knowledge must be true or untrue can logically be regarded as increasing the probability that it is true. That is to say a failure to deny or explain may make evidence more convincing, but it does not supply its deficiencies. It is important that a trial judge should ensure, especially if any comment is made on an accused's decision not to give evidence, that juries do not use impermissibly the failure to testify. At the least, the jury must be told that the accused is not bound to give evidence and that the onus remains on the prosecution to prove guilt beyond reasonable doubt [35] . The limited use which can be made of an accused's failure to testify is of special importance when the prosecution case depends upon the drawing of an inference of guilt from the facts proved directly by evidence. In such a case, the jury must not use a failure to testify as a fact, albeit in conjunction with other facts, from which they might infer the accused's guilt [36] . If there is insufficient evidence of the facts from which an inference of guilt could be drawn, a failure to testify cannot supply the deficiency. But the jury may draw inferences adverse to the accused more readily by considering that the accused, being in a position to deny, explain or answer the evidence against him, has failed to do so. In Wilson v Buttery [37] , Napier J. said: If the truth is not easily ascertainable by the prosecution, but is probably well known to the defendant, then the fact that no explanation or answer is forthcoming as might be expected if the truth were consistent with innocence, is a matter which the Court or jury may properly consider. Citing this passage in Morgan v Babcock & Wilcox Ltd [38] , Isaacs J. held that, as the affirmative evidence in the case raised "a strong probability" that it was the defendant Company that had paid, or had caused to be paid, the bribe the subject of the charge in that case, "the silence of the Company, and its failure to explain, materially weakens any attempt to suggest in its favour possible hypotheses of innocence". In May v O'Sullivan this Court said [39] : After the prosecution has adduced evidence sufficient to support proof of the issue, the defendant may or may not call evidence. Whether he does or not, the question to be decided in the end by the tribunal is whether, on the whole of the evidence before it, it is satisfied beyond reasonable doubt that the defendant is guilty. This is a question of fact. In deciding this question it may in some cases be legitimate, as is pointed out in Wilson v Buttery, for it to take into account the fact that the defendant has not given evidence as a consideration making the inference of guilt from the evidence for the prosecution less unsafe than it might otherwise possibly appear: cf. Morgan v Babcock & Wilcox, per Isaacs J. [38] . But to say this is a very different thing from saying that the onus of proof shifts. 1. (1964) 118 C.L.R. 600, at p. 613. 2. See R v Templeton , [1922] Q.S.R. 165, at p. 171; Reg v Phillips , [1967] Qd R. 237, at pp. 292-293; Reg v Fellowes , [1987] 2 Qd R. 606; Reg v Hocking , [1988] 1 Qd R. 582. 3. (1964) 118 C.L.R., at p. 614. 4. (1964) 118 C.L.R., at p. 615. 5. Waugh v The King , [1950] A.C. 203, at p. 212; Reg v Bathurst , [1968] 2 Q.B. 99, at pp. 107-108. 6. In this sense, it may be said that an accused's failure to give evidence "has no evidential value": Reg v Sparrow , [1973] 1 W.L.R. 488, at p. 495; [1973] 2 All E.R. 129, at p. 135; (1973) 57 Cr. App. R. 352, at p. 362. 7. [1926] S.A.S.R. 150, at p. 154. 8. (1929) 43 C.L.R. 163, at p. 178. 9. (1955) 92 C.L.R. 654, at pp. 658-659. 10. (1929) 43 C.L.R. 163, at p. 178.

[66]

As has already been said to you, the Crown bears the onus of satisfying you beyond reasonable doubt that the accused is guilty of the offences with which he is charged. The accused bears no onus. He does not have to prove anything. For that reason he was under no obligation to give evidence. You cannot infer guilt simply from his failure to do so. The consequence of that failure is this: you have no evidence from the accused to add to, or explain, or to vary, or contradict the evidence put before you by the prosecution. No objection is taken to this direction, but objection is taken to the passage which followed and which related to the use which the jury could make of the absence of the appellant's evidence in the drawing of an inference of guilt: Moreover, this is a case in which the truth is not easily, you might think, ascertainable by the prosecution. It asks you to infer guilt from a whole collection of circumstances. It asks you to draw inferences from such facts as it is able to prove. Such an inference may be more safely drawn from the proven facts when an accused person elects not to give evidence of relevant facts which it can easily be perceived must be within his knowledge. You might, for example, think in this case it requires no great perception that the accused would have direct knowledge of events which can be canvassed only obliquely from the point of view of seeking to have you draw an inference from the evidence which has been led by the Crown. The use that you make of the fact that there is no evidence given or called by the defendant in these proceedings is that. Later in his summing up, his Honour directed the jury as follows: I remind you that the onus is on the prosecution and the fact that the accused has not given or called evidence proves nothing. I remind you that the consequence of that circumstance is that you have no evidence from the accused to explain the evidence put before you by the prosecution, and that moreover, this is a case where the truth is not easily ascertainable by the prosecution. You remember rather here it seeks to have you infer guilt from such facts as it is able to prove to your satisfaction. Such an inference may be more safely drawn from the proven facts when the accused elects not to give evidence of relevant facts which can be easily perceived to be in his knowledge. No error appears in these directions. The onus of proof is correctly placed on the prosecution. The facts from which an inference of guilt may be drawn are correctly identified as facts which the prosecution is able to prove. The use to which the appellant's failure to give evidence may be put is correctly restricted to the strengthening of an inference of guilt from the facts proved. And the jury is told not to use the appellant's failure to give evidence unless relevant facts "can be easily perceived to be in his knowledge". This additional requirement, which follows a decision of the Court of Criminal Appeal of Queensland in Reg v Whinfield [41] , ensures that the drawing of an inference of guilt will not be assisted by an accused's failure to give evidence unless it is reasonable to expect some denial, explanation or answer by the accused to the prima facie case made against him. 1. Unreported; 16 September 1986; p. 25.

At a glance

Court

Decision date

Before

Source

Judgment (109 paragraphs)

Parties