The Queen v Peel[1998] QCA 371

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 298 of 1998

Brisbane Before McMurdo P. Pincus J.A.Williams J.

[R v. Peel]

THE QUEEN

v.

STEVEN THOMAS PEEL

Appellant

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 17 November 1998

1. I have read the reasons of Williams J. There was nothing to connect the appellant with the offence other than fingerprint evidence.  The jury was entitled to be satisfied that his fingerprints and his fingerprints only were on a bottle containing petrol, the throwing of which (complete with burning wick) had to be appropriately connected with the appellant, for the prosecution to succeed. One possibility was that the fingerprints were on the bottle because it was the appellant who threw it;  another was that quite innocently and perhaps on some much earlier occasion, the appellant happened to handle the bottle.  The learned primary judge told the jury, in summary, that an inference might be drawn against the appellant because of the presence of the fingerprints,  he said inference might more readily be drawn because the appellant "being in a position to deny or explain or answer how his fingerprints came to be on this bottle, has failed to do so".  The prosecution proved that some 11 months after the incident complained of the police attempted to interview the appellant about the matter, but he declined. When the case came to trial nearly two years later, the appellant eschewed the witness box. Speculation as to his reason for taking the latter course was laid to rest in the course of a discussion the trial judge had with the appellant when sentencing him, in which it was explained that the reason the appellant did not give evidence was "because I can’t remember that far back".

2. Mrs Richards, for the appellant, argued that no Weissensteiner direction was appropriate. Mrs Richards pointed out that it was unlikely that an innocent person would remember whether or not he had touched a particular bottle a long time ago, hardly a memorable event.

3. The case raises the question whether it is right that a Weissensteiner direction cannot be given in such a case.  If an accused’s fingerprints and no other fingerprints were found on a bottle with which a person had been killed, could a Weissensteiner direction be given against an accused who declined to say anything about the matter, or would the Court be precluded from doing so if the bottle were of a common type and a considerable time had elapsed before the accused was questioned?

4. The scope of the Weissensteiner direction has been discussed in a considerable number of judgments in this Court.  Some of the cases were dealt with in a judgment of mine in Powell v. Smith and Blacker (C.A. Nos. 251 and 264 of 1995, 14 November 1995).   One of the decisions noted was Wei Cai (C.A. Nos. 444 and 457 of 1994, 3 March 1995), of which I said:

"There the question was whether the Crown had proved that one or both of the appellants had killed a murder victim, and if one only, which one?"

There was evidence that the appellants were both at the place where the murder was committed, but there was room for doubt as to whether both of the accused took part in the murder.  The problem was particularly acute with respect to one of the appellants, Wei Cai. In Wei Cai, Thomas J. (as his Honour then was) referred to circumstances suggestive of Wei Cai’s involvement in the matter and went on:

"In the absence of any answer to these circumstances the jury was entitled to conclude that both men were engaged upon a joint enterprise in relation to their dealings with the deceased.  . . . In reviewing whether a jury’s verdict is safe and satisfactory and in particular in considering whether a properly instructed jury could reasonably have arrived at that verdict, an appeal court may bear in mind:

‘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?’"

The passage quoted by the judge, from Burdett  (1820) 4 B & Ald 95 at 161-2, 106 E.R. 873 at 898, is set out in the principal judgment in Weissensteiner, that of Mason C.J., Deane and Dawson JJ. (1993) 178 C.L.R. 217 at 225.  I draw attention to the reference to "explanation or contradiction, if the conclusion to which the prima facie case tends to be untrue".  The implication is that it is the conclusion itself which may be the subject of explanation or contradiction. Here, whether or not the appellant had any recollection whether he had consumed Diet Coca Cola, either at the relevant time or ever, one would have expected him to have recalled whether he had ever attempted to fire bomb a car.

5. In F (C.A. No. 418 of 1996, 6 December 1996), Thomas J. (as his Honour then was) quoted the same passage from Burdett as I have set out and also two passages from Weissensteiner;  it is enough to set out the more succinct one:

". . . a judge may tell the jury that where the facts which they find to be proved by the evidence can support an inference that the accused committed the offence charged and where it is reasonable to expect that, if the truth were consistent with innocence, a denial, explanation or answer would be forthcoming, the jury may take the accused’s failure to give evidence into account in determining whether the inference should be drawn". (236)

White J. expressed her agreement with Thomas J.’s observations.

6. A more recent case in which a Weissensteiner direction was considered was King (C.A. No. 66 of 1998, 26 May 1998, Davies and McPherson JJ.A., Derrington J.).  There the reasons of the Court included the following:

"Acting on the decision in Weissensteiner v. The Queen (1993) 178 C.L.R. 217 [the trial judge] accepted that the case was one in which only the appellant was in a position to give evidence of facts which, to quote from the judgment in that case (178 C.L.R. 217, 228), were ‘peculiarly within [his] knowledge’".

After referring to transactions on a TAB account, the reasons went on:

"Without affirmative evidence to the contrary from [the appellant], the jury were entitled to infer that those deposits and withdrawals were simply one aspect of an extensive scheme of buying, selling and paying for drugs to which the appellant himself was a party".

7. In the present case, it was in my opinion proper for the judge to tell the jury that they might use the absence of any contradiction of the conclusion to which the objective circumstances pointed as a fact entitling them to be more ready to draw an adverse inference than they would have been, had the appellant contradicted that conclusion.  But Mrs Richards argued that, reading the summing-up as a whole, it was rather unbalanced;  she seemed to suggest that the judge’s direction might have inclined the jury to treat the absence of any contradiction from the appellant as proof of guilt.  It is not necessary, in my opinion, to determine whether that criticism is justified.  I am of opinion that the appeal should be allowed because the learned primary judge gave emphasis to the proposition that the jury might more readily infer guilt because the appellant gave no evidence or explanation, when his Honour had assured the appellant, when inquiring whether he intended to adduce evidence that:

"If you choose not to give or call evidence, no adverse inference can be drawn against you by reason of that fact".

8. Where a Weissensteiner direction is in prospect, such an assurance cannot be given. It is true that there is a difference between being more ready to draw an inference by reason of a circumstance on the one hand, and simply drawing it by reason of a circumstance.  But that is too fine a distinction to justify the assurance his Honour gave.

9. I would allow the appeal, set aside the conviction and make no order for a new trial.