SUPREME COURT OF QUEENSLAND

1. WILLIAMS JA:  I agree with the reasons of Jones J.

2. JONES J: The appellant was, on 11 April 2001, convicted after a trial in the District Court, Brisbane of one count of housebreaking, two counts of assault occasioning bodily harm and one count of serious assault.

3. The events occurred at the home of the complainant at Toowong. At 4.35 am on Sunday, 27 February 2000 police were notified that two intruders were found to be asleep in different rooms in the house. One of the intruders was David Weatherall who was detained at the scene. The other intruder escaped. David Weatherall was the cousin of the appellant and at that time also lived with the appellant.

4. The other intruder, the prosecution alleged, was the appellant. The appellant denies this and led alibi evidence to the effect that he spent the weekend at Glen Innes in Northern New South Wales. The appellant’s father gave evidence in support of this claim.

5. The principal issue at the trial was whether the appellant was at the scene of the crime. The prosecution relied upon the identification of the appellant by the two police officers who attended at the scene. The jury were fully and clearly directed in accordance with the recommendations in R v Domican^[1] and no challenge was made about the adequacy of those directions.  By their verdict the jury must have been satisfied about the identification. However, there remains an issue on appeal about the manner in which the identification was undertaken, and the lack of consistency in the description of a tattoo which was the main reference point for identification.

6. Apart from the identification issue the appellant argues that the trial miscarried in two fundamental ways - firstly, because of the use made by the Crown Prosecutor of the fact that the appellant did not call as a witness David Weatherall who had stated to the police that his co-offender was a person named Gordon Thompson; secondly, that the learned Crown Prosecutor made improper use of the appellant’s evidence about the time of his departure for Glen Innes by suggesting it was a lie made in consciousness of guilt.

The failure to call David Weatherall

7. During the prosecution case there was legal argument as to whether evidence could be led of David Weatherall’s statement to police officers that his co-offender was one, Gordon Thompson. The learned trial Judge ruled that it could be on the basis that the jury would be told it was evidence of the statement having been made and not as to the truth of its terms. Defence counsel confined his questioning of the first police witness to whether the witness had made any inquiries about the person named Gordon Thompson. The prosecution when leading evidence from the next police witness, presumably in anticipation of this assumed line of defence, adduced the terms of the statements made by David Weatherall. Understandably counsel for the defence (who was not counsel on appeal) did not object to this hearsay evidence. The statement, however, as events turned out, had the potential to embarrass the defence if David Weatherall was not called as a witness.

8. The appellant was in a position, if his alibi was to be made out, of having either to give or to call evidence. In doing so, he subjected himself to being cross examined. At the commencement of cross-examination the learned Crown Prosecutor established that David Weatherall was incarcerated and that the appellant believed he was in the cells at the courthouse.

9. Counsel for the defence objected, principally on the ground that the suggestion inherent in the questioning ran counter to the accused’s right to silence. After legal argument the learned Crown Prosecutor was allowed to proceed with his cross examination during which the following exchange took place:-

“But you’re aware of the fact that he’s in the cells downstairs in this building today, is that right?..I think so now.

You think so or yes? You said yes before?—Yeah, I’m not sure, I – no-one still hasn’t told me anything.

You said yes before, didn’t you? – Yes.

Well, what is it, yes, you think so or not sure? – Yeah, pretty sure he is, I’m not sure, no-one never told me nothing.

I beg your pardon? – No-one’s told me nothing.

But you know he’s downstairs in the cells, is that right? – Not really.

Well, what is it, yes or not really, what—I don’t know.

Are you doing a bit of a retreat from what you said before the jury were sent out? – But I don’t know, no-one’s told me.

Well, in answer to a question whether or not you knew your cousin was down in the cells, all right ---? – No, all I know is that ---

Let me finish the question.  Before the jury were sent out, you said yes, didn’t you, isn’t that right? – Might have, yes.

Yes.  Well, why are you not so sure now? – Because I haven’t been actually directly told that it is that he is here.

Well, you didn’t say that before, did you? – No, only just assumed that he has been here.

And you assumed that because you had the expectation that he was going to be called as a witness, isn’t that right? – No.

Well ----? – At first I did

At first you did, all right? --- Yes

Well, at some stage you had an expectation that he would be called as a witness, is that right? – yes.”^[2]

This passage was obviously very damaging to the defence case as a decision, by that time, had been made in fact not to call David Weatherall because of concern about his credibility before the jury.  The topic of David Weatherall’s statements, having been introduced by the prosecutor’s adducing of hearsay evidence, placed the defence into a situation where comment could be made on any failure to call Weatherall.  Had the hearsay evidence not been introduced the defence case might simply have been that the appellant was not at the scene of the crime.

10. On a number of occasions in his address the Crown Prosecutor stated that the jury could draw inferences from the fact that David Weatherall was in the court precincts and not called by the defence. The phrase “adverse inference” was used on at least two occasions.

11. The learned trial judge dealt with this point in his summing-up in the following terms:-

“The failure to call a witness cannot supply or make up a deficiency in the prosecution case.  The accused bears no onus of proof or any obligation to call evidence consistent with the presumption of innocence.  This is the only use you can make of the failure to call David Weatherall.  You should not draw any adverse inference against either party in this case.  That is, the Crown or the defence.”^[3]

12. His Honour discussed the fact that the evidence concerning Gordon Thompson’s statement was “background evidence” and then correctly identified the question for the jury as “it is a matter for you to determine in this case whether or not it was the accused who was present at the house on the night in question, that is the issue in the case.”^[4]

13. Mr Devereaux of Counsel for the appellant argued that the reference in the cited passage to “adverse inference against either party” amounts to a misdirection insofar as it suggests some onus on the accused and that the summing-up was inadequate in its form having regard to the decision of a High Court in RPS v The Queen.^[5] 

14. In RPS the judgment of the majority (Gaudron A-CJ, Gummow, Kirby and Hayne JJ) makes reference to the effect in a civil trial of adopting the rule in Jones v Dunkel.^[6] where, if there is a reasonable expectation that a party would give evidence, failure to do so leads to an inference that the evidence would not help the party’s case.^[7]  The decision of the majority then states:-

“[27] By contrast, however, it will seldom, if ever, be reasonable to conclude that an accused in a criminal trial would be expected to give evidence. The most that can be said in criminal matters is that there are some cases in which evidence (or an explanation) contradicting an apparently damning inference to be drawn from proven facts could come only from the accused. In the absence of such evidence or explanation, the jury may more readily draw the conclusion which the prosecution seeks. As was said in Weissensteiner v The Queen (39):

 “[I]n 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.” (emphasis added)

[28] In a criminal trial, not only is an accused person not bound to give evidence, it is for the prosecution to prove its case beyond reasonable doubt. The observations by the Court in Jones v Dunkel must not be applied in criminal cases without taking account of those considerations.

[29] If the question concerns the calling by the defence of a witness other than the accused, it will also be necessary to recall that the prosecutor “has the responsibility of ensuring that the Crown case is presented with fairness to the accused”(4) and in many cases would be expected to call the witness in question as part of the case for the prosecution. And, if the question concerns the failure of the prosecution to call a witness whom it might have been expected to call, the issue is not whether the jury may properly reach conclusions about issues of fact but whether, in the circumstances, the jury should entertain a reasonable doubt about the guilt of the accused.”

Callinan J took the view at [111] that the rule in Jones v Dunkel had no application at all in a criminal case.

15. Counsel for the appellant also referred to a decision of the Court of Appeal in New South Wales, R v John Scott ^[8] where the learned trial judge, having been invited by the prosecution to give a direction in accordance with Jones v Dunkel principles, did so in terms that where there is “a person who, in the ordinary course you would expect the Crown or the defence to call and the Crown or the defence offers no satisfactory explanation for its failure to call this witness, you are entitled to draw the inference that his or her evidence would not have assisted in the case of the Crown or the defence.”^[9]  The Court of Criminal Appeal held such direction in the context of competing witnesses’ accounts at trial were “seriously in error and such as to undermine the onus of proof”.^[10]

16. For the respondent it was argued that, notwithstanding the adverse effect of the cross examination of the appellant, he (the respondent) had the benefit of having before the jury the fact that David Weatherall had nominated Gordon Thompson as the co-offender. That was a benefit to which the appellant was not entitled by the way the trial proceeded. Counsel for the respondent referred to the remarks of McPherson JA in R v Brennan.^[11] 

17. In that case the issue was essentially one of credibility rather than going to an inference concerning an issue of trial. McPherson JA relied on R v Buckland ^[12] to identify the permissible limit of the use that could be made of failure to give evidence - namely, that it would allow the jury to come to the conclusion that the evidence “would not have helped his case if the witness had given evidence.”  This statement does not include the qualification now imposed by RPS that in criminal cases account must be taken of the fact that it is the prosecution that has the onus of proving its case beyond reasonable doubt.

18. In the circumstances here where the topic of David Weatherall’s statement was introduced by the prosecution eliciting hearsay evidence, the appellant’s objection to the cross-examination of David Weatherall’s whereabouts should have been upheld. Further, the form of His Honour’s directions to the jury about the failure to call David Weatherall was not sufficient to overcome the difficulty that had arisen, particularly given the remarks of the Crown Prosecutor in his address. His Honour described the evidence concerning David Weatherall’s out-of-court statement as “background evidence” but such a description did not reduce the impact that the cross-examination and statements made by the Crown Prosecutor in his address would have on the credibility of the appellant in circumstances where credibility was vital in the issue confronting the jury between accepting the police evidence of identification and the appellant’s evidence of alibi.

Lies and the Edwards direction

19. The appellant gave evidence in support of an alibi assertion that he was not in Brisbane at the time of the offence.  In his interview with police he stated he left Brisbane in the morning at 9.00 am.  He was required, at that time, to report daily to the Inala Police Station by the bail conditions imposed in respect of an earlier offence.  The bail reporting form (ex. 13) disclosed that on that particular Friday he reported at 3.00 pm.  When he gave his evidence at trial he fixed his departure time as sometime on Friday afternoon.  That change between what he told the police officers and what he said in evidence might well have been relevant to the appellant's credit but the learned Crown prosecutor sought to elevate the statement to the police officer as a lie made in the consciousness of guilt within the description of that conduct in Edwards v The Queen.^[13]

20. The point at issue on this appeal relates to the conduct of the learned Crown prosecutor in his address insofar as it was contended that he laboured the point for nearly two pages of a ten page address. The phrases “deliberate lie” and “consciousness of guilt” were repeatedly used.

21. The learned trial Judge summed-up in the following terms:

“The Crown have suggested to you that this was a lie. Well, it’s up to you to make up your mind whether he was telling a lie and whether he was doing so deliberately.  It is for you to decide what significance that lie has in relation to the issues in this case, but I will give you this warning:  do not follow a process of reasoning to the effect that just because a person is shown to have told a lie about something that that is evidence of guilt.  You should not follow that process of reasoning.  You are entitled to have regard, however, to all the evidence in this case in determining the reliability of the evidence of any particular witness.”^[14]

22. The question is whether these remarks were sufficient to balance the effect of the prosecutor’s address. In R v Brennan^[15]McPherson JA commented on the persistent reliance by prosecuting counsel on the phenomenon of lies by accused as evidence of a consciousness of guilt.  A similar comment was made more recently in R v Walton and Harmon.^[16]Mr Campbell of counsel for the respondent argued that the discrepancy in the appellant’s evidence about the departure time from Brisbane was material to the acceptance or otherwise of his alibi. He argued that the approach taken by the learned trial Judge was correct and that by that direction, he took the evidence out of the class which would require an Edwards warning.

23. Given the manner in which the issue of lies was dealt with in the prosecution address and the fact that credibility was vital to the principal issue at the trial, it is my view that more needed to be done to correct the adverse impression during the address. This perhaps could have been achieved by giving a full Edwards warning and/or making direct reference to the inappropriateness of the prosecutor’s remarks during his address.

24. In all the circumstances it is my view there has been a miscarriage of justice in the conduct of the trial. Issues remain concerning the manner of identification. These, together with the impact of the features referred to above on the appellant’s credibility, convince me this is not a case in which the proviso should be applied.

25. I would therefore order:

1. Appeal against conviction allowed;

2. Convictions set aside;

3. New trial ordered.

26. DOUGLAS J: I have read the reasons of Jones J and agree with them. I also agree with the orders he proposes.