R v Savage

This decision concerns an appeal against conviction. The appellant contended that directions regarding the demeanour of Indigenous witnesses violated the statutory proviso in s 632(3) Criminal Code prohibiting directions that suggest the law regards any class of persons as unreliable witnesses. The Court of Appeal rejected this argument, finding that the remarks did not suggest that the law regards Indigenous persons as unreliable witnesses. Instead, the remarks offered explanations about the general manner of Indigenous persons when testifying, and simply provided guidance for using the demeanour of these witnesses when assessing their reliability.

Gotterson and McMurdo JJA and Douglas J

21 June 2017

The appellant was convicted of murder following a trial. The deceased was a homeless man, whom the appellant suspected had broken into his unit. There was no question that the appellant had stabbed and killed the deceased. Rather, the defence case was that the stabbing was not a willed act, the appellant acted in self-defence, the appellant did not intend to cause death or grievous bodily harm, or the stabbing was provoked. [4], [5].

The altercation occurred outside a unit neighbouring the appellant’s unit. [7]. Several prosecution witnesses, who lived in nearby units, gave evidence of the surrounding events. If accepted, that evidence negatived each of the defences raised by the appellant. [9].

The trial judge’s opening address to the jury discussed the demeanour of witnesses, stating that Aboriginal and Torres Strait Islander witnesses may be called during the trial, “and it’s well enough known that they are probably more intimidated than any other category of society in giving evidence in courthouses”. The trial judge noted that, as a result, “they can often tend to be softly spoken and sometimes be difficult to understand in response … [or] take a while to answer a question in a longer way than is normal for, for example, Caucasian people in society”. The trial judge advised the jury that was “simply a cultural way in which they deal with how to meet a response to a question”, and “not a sign of dishonesty”. [16].

In summing up, the trial judge again noted that, “of all parts of the community”, Aboriginal and Torres Strait Islander witnesses “find the [court] experience most daunting and difficult”. The trial judge then made the following observations while summarising the evidence of a particular witness:

“Members of the jury, this witness was an Aboriginal and Torres Strait Islander witness who you might think did appear, at times, to give inconsistent answers, which you might think were the product of misunderstanding of questions and him otherwise struggling to express himself in sequential detail. That is not uncommon with Aboriginal or Torres Strait Islander witnesses giving evidence. It may not mean he was being dishonest. You should, of course, bear in mind in assessing the reliability of any particular answer he gave that he did exhibit those traits, though. … The traits of which I speak are that people of his heritage and culture do not always express sequential details with the same ease as people from other walks of society.” [18].

On appeal, the principal argument was that those remarks violated the proviso in s 632(3) of the Criminal Code by suggesting that the law regards Indigenous persons as unreliable witnesses. [19]. Section 632 provides that a person may be convicted of an offence on the uncorroborated testimony of one witness, unless the Code otherwise provides, and that a judge is not required to warn the jury that such a conviction is unsafe. Subsection 632(3) then provides that:

“[s]ubsection (1) or (2) does not prevent a judge from making a comment on the evidence given in the trial that it is appropriate to make in the interests of justice, but the judge must not warn or suggest in any way to the jury that the law regards any class of persons as unreliable witnesses.”

The Court of Appeal confirmed that s 632(3) was enacted to displace common law rules which regarded certain classes of persons as unreliable witnesses. [20], [21]. The court stated that the proviso prohibits a trial judge from instructing the jury that the law assumes the witness to be unreliable, but does not otherwise prevent the judge from commenting on the reliability of witnesses. [22]. 

The court found that the trial judge’s comments did not suggest that the law regards Indigenous persons as unreliable witnesses. Those remarks offered explanations about the general manner of Indigenous persons when testifying, and simply provided guidance for using the demeanour of such witnesses to assess their reliability. [34]. The comments made during summing up addressed the evidence of a particular witness who may have experienced a difficulty, “which some but not all Indigenous persons have”, in expressing sequential details. [35]. By those remarks, the trial judge was explaining that the inconsistencies in that witness’s evidence did not affect his credibility. [37]. Accordingly, the comments did not contravene the proviso in s 632(3) and in any event the effect of the comments were likely to enhance the weight placed on that evidence, which favoured the defence case. [39]. The appeal was dismissed.

K W Gover of Counsel