Dyers v The Queen [2002] HCA 45

HIGH COURT OF AUSTRALIA

GAUDRON, McHUGH, KIRBY, HAYNE AND CALLINAN JJ

KENNETH EMMANUEL DYERS APPELLANT

AND

THE QUEEN RESPONDENT

Dyers v The Queen [2002] HCA 45

9 October 2002

S255/2001

ORDER

1. Appeal allowed.

2. Set aside the order of the Court of Criminal Appeal of New South Wales made on 25 August 2000 and, in lieu thereof, order that:

(a) the appellant's appeal to that Court be allowed;

(b) the appellant's conviction be quashed and a new trial be had.

On appeal from the Supreme Court of New South Wales

Representation:

P Byrne SC with N Mikhaiel for the appellant (instructed by Henry Davis York)

R D Ellis with L M B Lamprati for the respondent (instructed by S E O'Connor, Director of Public Prosecutions (New South Wales))

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Dyers v The Queen

Criminal law and procedure – Appeal against conviction – Indecent assault of minor – Whether trial judge erred in directions to jury – Failure of defendant to call witnesses – Delay in making complaint – Longman v The Queen (1989) 168 CLR 79 considered – Unreasonable verdict – Unsworn statement by defendant – Order for new trial.

Evidence – Inferences – Criminal trial – Whether inferences open from failure to call witnesses – Application of Jones v Dunkel (1959) 101 CLR 298 to criminal trials.

1. GAUDRON AND HAYNE JJ. In 1999, the appellant was indicted, in the District Court of New South Wales, on a charge of indecently assaulting a 13 year old girl in 1988 – 11 years earlier. Although the indictment alleged that the offence had occurred between specified dates, by the end of the prosecution case it was clear that it was alleged that the assault had occurred on the morning of 29 July 1988. In an unsworn statement at his trial, the appellant acknowledged that he had seen the complainant that morning, but he said that it was only in the company of her mother, and while he was otherwise engaged in meetings with others. The appellant's appointment diary was tendered in evidence. It recorded a number of appointments for the appellant during the day. No appointment with the complainant was recorded. There were, however, references to a meeting at 9.30 am with two other persons, a meeting between 1.00 pm and 3.00 pm with several other persons, including the complainant's mother, and what was described as a "processing session" with a Ms Tinkler between 9.30 am and 11.30 am in a room called the "energy conversion room". The complainant swore that the appellant had indecently assaulted her in that room at the end of a "processing session" with her in the morning of 29 July 1988. 2. Neither Ms Tinkler nor others who were recorded in the diary as having appointments at 9.30 am and 1.00 pm gave evidence at the trial. The principal issue in the appeal is this. Did the trial judge misdirect the jury by telling them that, if they concluded: first, that any of these persons was one whom the jury would expect one of the parties to have called to support what was asserted by that party, and secondly, that there was no satisfactory explanation for the failure of that party to call the person to give evidence, then "you are entitled to draw the inference that the evidence of that witness would not have assisted the party who you have assessed should have called that witness"? 3. Yet immediately before giving this direction, evidently modelled on what was said in Jones v Dunkel[1], the trial judge had told the jury that where it appeared that there was a witness who could be expected to have been able to give some relevant evidence on some aspect of the case, but the witness had not been called, "you are not entitled to speculate upon what that witness might have said if the witness had been called". 4. The respondent submitted that, following this Court's decisions in RPS v The Queen[2] and Azzopardi v The Queen[3] (both of which were delivered after the appellant's trial), the former of these directions (the Jones v Dunkel direction) should not have been given, but the latter direction (not to speculate about what evidence might have been given by those who were not called) should have been given. That submission should be accepted. 5. As a general rule a trial judge should not direct the jury in a criminal trial that the accused would be expected to give evidence personally or call others to give evidence. Exceptions to that general rule will be rare. They are referred to in Azzopardi[4]. As a general rule, then, a trial judge should not direct the jury that they are entitled to infer that evidence which the accused could have given, or which others, called by the accused, could have given, would not assist the accused. If it is possible that the jury might think that evidence could have been, but was not, given or called by the accused, they should be instructed not to speculate about what might have been said in that evidence. 6. Further, as a general rule, a trial judge should not direct the jury in a criminal trial that the prosecution would be expected to have called persons to give evidence other than those it did call as witnesses. It follows that, as a general rule, the judge should not direct the jury that they are entitled to infer that the evidence of those who were not called would not have assisted the prosecution. A direction not to speculate about what the person might have said should be given. Again, exceptions to these general rules will be rare and will arise only in cases where it is shown that the prosecution's failure to call the person in question was in breach of the prosecution's duty to call all material witnesses. 7. There are three principal reasons for concluding that a Jones v Dunkel direction should not have been given against the appellant in this matter. 8. First, the trial judge's direction invited the jury to consider two questions: would one party be expected to have called a witness to support that party's assertions, and was there a satisfactory explanation for the party's failing to call the evidence? The trial judge gave no direction that would have helped the jury in deciding how to answer these questions. In particular, the jury were given no instructions about when a party would be expected to call a witness, or what would be a satisfactory explanation for not calling that person. And, as it happens, there had been little examination of these matters in evidence given at the trial. Reference was made in cross‑examination to Ms Tinkler being available to give evidence but there was no reference to whether any of the others mentioned in the appointment diary were available. More importantly, there was no evidence which would have provided the jury with a basis for concluding that one or more of these witnesses could have been regarded as being in the camp of one party to the matter rather than the other. Rather, the final address for the prosecution asserted (in effect) that there were persons whom it could be expected that the defence would call, but the basis for making that assertion had not been established in evidence. These would be reasons enough to hold that the direction should not have been given in this case. But the problem with the direction (to the extent to which it is properly understood as having been directed at the appellant) is more deep‑seated than any deficiency in the evidentiary basis which the direction assumed. 9. As was pointed out in RPS[5], it will seldom, if ever, be reasonable to conclude that an accused in a criminal trial would be expected to give evidence. Not only is the accused not bound to give evidence, it is for the prosecution to prove its case beyond reasonable doubt. The mode of reasoning which is spoken of in R v Burdett[6] and Jones v Dunkel[7] ordinarily, therefore, cannot be applied to a defendant in a criminal trial. That mode of reasoning depends upon a premise that the person concerned not only could shed light on the subject but also would ordinarily be expected to do so. The conclusion that an accused could shed light on the subject‑matter of the charge is a conclusion that would ordinarily be reached very easily. But given the accusatorial nature of a criminal trial, it cannot be said that, in such a proceeding, the accused would ordinarily be expected to give evidence. So to hold would be to deny that it is for the prosecution to prove its case beyond reasonable doubt. That is why the majority of the Court concluded, in RPS and in Azzopardi, that it is ordinarily inappropriate to tell the jury that some inference can be drawn from the fact that the accused has not given evidence. To the extent to which earlier decisions of intermediate courts held to the contrary[8] they were overruled[9]. 10. The reasoning which underpinned the decisions in RPS and in Azzopardi cannot be confined to the accused giving evidence personally. It applies with equal force to the accused calling other persons to give evidence. It cannot be said that it would be expected that the accused would call others to give evidence. To form that expectation denies that it is for the prosecution to prove its case beyond reasonable doubt. 11. The second of the principal reasons for concluding that a Jones v Dunkel direction should not have been given is closely connected with the first. Any conclusion about who would be expected to call a person to give evidence must take account of the obligations of the prosecution. If persons are able to give credible evidence about matters directly in issue at the trial, those facts, standing alone, would ordinarily suggest that the prosecution should call them[10]. As has been pointed out in several decisions of this Court, a basic requirement of the adversary system of criminal justice is that the prosecution, representing the State, must act "with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused's trial is a fair one"[11] (emphasis added). That requires the prosecution to call all available material witnesses unless there is some good reason not to do so. The fact that a witness will give an account inconsistent with the prosecution case is not a sufficient reason for not calling that person[12]. 12. If, in a particular case, the prosecution chooses, for good reason, not to call a witness (as, for example, on the basis that the evidence which would be given by that witness would be "unreliable, untrustworthy or otherwise incapable of belief"[13]) it would be quite wrong to invite the jury to conclude that the accused could be expected to have called that person. Yet if the jury are to be invited to draw some conclusion adverse to the accused from the fact that a witness has not been called, it can only be on the basis that it would be expected that the accused would call that person unless the evidence that would be given would not assist the accused. But if the evidence was important and credible, why was it not adduced by the prosecution? 13. The third of the principal reasons, for concluding that a Jones v Dunkel direction should not have been given, arises out of the direction that the jury should not speculate about the evidence that might have been given by those who were not called. The reasoning of which Windeyer J spoke in Jones v Dunkel[14] was the drawing of inferences from proved facts and the confidence with which such inferences could be drawn. The central issue for the jury in the present matter was whether they were persuaded, to the requisite standard of satisfaction, that the events described by the complainant had happened. To those events there were said to be only two witnesses – the complainant and the accused. It may, therefore, be doubted that the drawing of inferences loomed large in the jury's deliberations in this case. At most, there might have been some questions of inference about peripheral issues. 14. Be this as it may, to tell the jury that they should not speculate about what evidence might have been given, by those who were not called, is an instruction that directly contradicts the instruction that the jury may conclude that the evidence which those persons could have given would not assist the case of the party whom it was expected would call them. 15. The contradiction should, of course, have been avoided but it was to be avoided only by giving one direction (the direction not to speculate). So much follows from the considerations dealt with earlier. But there is a further reason for that conclusion which is a reason founded in the distinction between the role of the judge and the jury in a criminal trial. As was pointed out in Azzopardi[15], it is important to distinguish between a judge's comments about either the evidence or the facts the jury may find to be proved, and the directions a judge gives to the jury. As was said in the joint reasons[16], "[i]t is … not the province of the judge to direct the jury about how they may (as opposed to may not) reason towards a conclusion of guilt". Because there can be no expectation that an accused should or will go into evidence, the reasoning described in R v Burdett and Jones v Dunkel will not be available (at least in all but the most unusual circumstances). That being so, lest the jury engage in that form of reasoning, they should be told that they may not. That is why, as was pointed out in Azzopardi[17], if the accused does not give evidence it is almost always desirable to warn the jury that the accused's silence in court is not evidence against the accused, does not constitute an admission by the accused, may not be used to fill gaps in the evidence tendered by the prosecution, and may not be used as a make‑weight in assessing whether the prosecution has proved its case beyond reasonable doubt. Likewise, where there is evidence that there may be persons who could have, but have not, given relevant evidence, it is almost always desirable to tell the jury that they may not speculate about what those witnesses might have said but must decide the case only on the evidence that has been led. A direction of that kind, about how the jury should not reason, is a proper form of judicial instruction to the jury. By contrast, if the judge tells the jury how to find the facts which will found a verdict of guilt, the judge comments on the facts of the case in a way that runs obvious risks of detracting from the jury's role as the tribunal of fact. 16. The three reasons we have given are all concerned with giving a Jones v Dunkel direction about evidence which the accused might have adduced. The directions given in this matter were described in the Court of Criminal Appeal as having been intended as "bipartisan"[18]. That is, they were understood as permitting, if not inviting, the jury to conclude that there were witnesses whom the prosecution could and should have called. Again, the trial judge having given the jury no guidance about who could be thought to fall into this group, or why that was so, the directions given were either of no assistance to the jury or were apt to mislead. But again, there are more deep‑seated reasons for saying that, save in very exceptional circumstances, a direction of this kind should not be given about witnesses whom the prosecution ought to have called. 17. As was held in R v Apostilides[19], it is for the prosecution to decide what evidence it will adduce at trial. The trial judge may, but is not obliged to, question the prosecution in order to discover its reasons for declining to call a particular person, but the trial judge is not called upon to adjudicate the sufficiency of the reasons that the prosecution offers. Only if the trial judge has made such an inquiry and has been given answers considered by the judge to be unsatisfactory, would it seem that there would be any sufficient basis for a judge to tell the jury that it would have been reasonable to expect that the prosecution would call an identified person. There would then be real questions about whether, and how, the jury should be given the information put before the judge and then a further question about what directions the jury should be given in deciding for itself whether the prosecution could reasonably have been expected to call the person. Only when those questions had been answered would further directions of the kind contemplated by Jones v Dunkel have been open and they are not questions which arise in the present matter. Nor is it necessary to consider whether some direction of this kind can be given when a party, who has called a witness, does not ask questions of that witness about a particular topic[20]. 18. In this matter, the relevant chain of inquiry stopped at the first of the points identified earlier, there having been no inquiry of the prosecution about why a particular person was not called as part of the prosecution case. In the circumstances of this case there was no occasion to make any such inquiry. The persons to whom reference was made in the appointment diary were not material witnesses. Their evidence was not "necessary to unfold the narrative and give a complete account of the events upon which the prosecution is based"[21]. That is reason enough to conclude that a Jones v Dunkel direction aimed at the prosecution should not have been given in this case. Had the direction been aimed only at the prosecution, it may be that its giving would not, in this case, have worked any injustice. But given that the direction would have been understood as aimed also at the appellant, the Jones v Dunkel direction was a material misdirection of the jury. 19. Lastly, it is necessary to deal with the suggestion, made in the course of oral argument, that some of the persons named in the appointment diary were properly to be considered to be alibi witnesses and, for that reason, warranted the giving of a Jones v Dunkel direction. In his unsworn statement, the appellant said that he was otherwise engaged during the time the complainant said he was alone with her. Whether this is a suggestion of alibi, as that expression is to be understood for the purposes of statutory provisions requiring the giving of notice of alibi evidence[22], is not to the point in considering whether giving a Jones v Dunkel direction amounted to a misdirection. Even if the unsworn statement of the appellant was evidence of alibi, the absence of evidence of those whom the statement, or other evidence, revealed might support the applicant's contention that he was engaged otherwise does not lead to some different conclusion about the application of Jones v Dunkel. Even in such a case it would be wrong to invite the jury to conclude from the absence of those persons that their evidence would not support some contention of the appellant. The attention of the jury should remain focused upon the central question for their decision – whether they were persuaded beyond reasonable doubt that the appellant had committed the acts described by the complainant. They should not have been distracted by being invited to make what amounted to inquiries about whether the appellant had made out a case. The appellant had no case to make[23]; the prosecution did. In assessing that central question the jury had to take into account the appellant's unsworn, and therefore untested, evidence from the dock. They should have been told that they should not speculate about what others may or may not have said had they been called to give evidence. Those conclusions do not depend upon the fact that in this case the appellant was able to, and did, make an unsworn statement. If the appellant had elected to give sworn evidence (but not call those whom it might be thought would have supported his assertions in evidence) a like direction should have been given. 20. As is mentioned at the start of these reasons, the respondent did not dispute that the giving of a Jones v Dunkel direction was a misdirection. The respondent did not submit that the proviso[24] was engaged. It follows that the appeal should be allowed and the order of the Court of Criminal Appeal dismissing the appellant's appeal to that Court against his conviction set aside. Whether there should be an order for retrial or an order entering a verdict of acquittal turns upon other aspects of the matter to which it is necessary to turn now. 21. The appellant contended that the direction which the trial judge gave about the difficulties confronting the appellant in responding to an accusation of illegal conduct said to have occurred 11 years before the indictment was filed was insufficient. The relevant principles to be applied are well established and are to be found in Longman v The Queen[25]. Given the conclusion that the appeal should be allowed on other grounds, it is not necessary to consider the application of Longman's Case. 22. It is, however, necessary to deal with the further contention of the appellant that the evidence led at his trial should have left the jury with a reasonable doubt as to his guilt. Substantially for the reasons given by Callinan J, that contention should be rejected. 23. In these circumstances, it would ordinarily follow that a new trial should be ordered, leaving it to the prosecuting authorities to decide whether to proceed with a new trial. In this case, however, the sentence imposed on the appellant has expired. The decision whether to continue a prosecution is ordinarily a decision for the executive, not the courts. There have, however, been cases where this Court has quashed a conviction, without either ordering a new trial or directing entry of a verdict of acquittal[26]. To make an order that would preclude a new trial would constitute a judicial determination of the proceedings against the appellant otherwise than on trial by jury and in circumstances where it is not held that the evidence adduced at trial required the jury to acquit the appellant. That being so, there should be an order for a new trial despite it being probable that the prosecution will not proceed further. 24. McHUGH J. Until RPS v The Queen[27], many – perhaps nearly all – criminal lawyers believed that a judge could lawfully direct a jury that "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"[28]. Similarly, criminal lawyers believed that, if the accused failed to contradict or explain evidence of facts, within his or her knowledge, the jury could more readily draw inferences adverse to the accused from that evidence[29]. In Weissensteiner v The Queen[30], Mason CJ, Deane and Dawson JJ went so far as to say that these propositions had "never really been doubted". But the first of these propositions was condemned as heresy by a majority of this Court in RPS v The Queen[31]. Subsequently in Azzopardi v The Queen[32], a majority of the Court re-affirmed the heresy of that proposition. Furthermore, the majority Justices in Azzopardi restricted the scope of the second proposition. They held that inferences adverse to the accused can only be drawn from the failure to explain evidence "if there is a basis for concluding that … there are additional facts which would explain or contradict the inference which the prosecution seeks to have the jury draw, and they are facts which (if they exist) would be peculiarly within the knowledge of the accused"[33]. Their Honours went on to say that "cases in which a judge may comment on the failure of an accused to offer an explanation will be both rare and exceptional"[34]. 25. Today, a majority of the Court again wields the anathema. They pronounce as heresy a principle that criminal lawyers have preached for nearly 200 years. It is the principle that, if the jury think that the accused should have called a witness and there is no satisfactory explanation for the failure to call the witness, the jury are entitled to draw the inference that the evidence of the witness would not have assisted the accused. It is heresy, the majority hold, because there is no expectation that the accused will either give evidence or call other persons to give evidence. Given the decision in Azzopardi, I must accept the premise. But I do not accept the conclusion that the majority draws from that premise. 26. In civil cases, there is no expectation that a defendant will give evidence in respect of any issue upon which the plaintiff bears the onus of proof. Yet, in appropriate cases, judges may direct juries or themselves that an adverse inference may be drawn if a party fails to call evidence that he or she was reasonably expected to call. In such a case, the tribunal of fact may draw the inference that the party feared that calling the evidence would have exposed facts unfavourable to that party[35]. In a civil case, the failure to call the evidence is an admission by conduct, and in certain circumstances the failure to call evidence in a criminal case may also be an admission by conduct. When the accused does more than merely deny the prosecution case and sets up an affirmative evidentiary case, the accused's conduct in presenting that case may give rise to an admission adverse to the affirmative case. 27. In a criminal case, there is of course less scope than in a civil case for drawing an inference from the accused's failure to call witnesses or tender documents. First, the prosecution has the duty to call all witnesses who can testify to the actus reus or mens rea of the charge[36]. Second, leaving aside statutory defences and the defence of insanity, the accused does not bear any onus of proof in a criminal trial. Third, in some jurisdictions – even before RPS and Azzopardi were decided – there may have been no general expectation that the accused would call or give evidence. Until New South Wales abolished the dock statement, that was not the expectation in that State. Until then, accused persons were expected to give evidence or make a statement from the dock. I doubt if there was ever a case in New South Wales where a person accused of an indictable offence did not give evidence or make a dock statement after the trial judge ruled there was a case to answer. At all events, I never saw or heard of such a case. Even those who just met the fitness-to-plead standard – the punch-drunk, illiterate, ex-travelling-tent boxer, for example – were expected to make a statement, if they did not give evidence. The statement might be as brief as: "I'm not guilty. I didn't do it. I didn't tell the police I did." But a statement would be made, if the accused did not give evidence, which the accused seldom did, usually preferring the safety of the dock to the danger of the witness box. 28. In New South Wales, there was also an expectation that the accused would specifically answer by evidence or statement such parts of the prosecution case as were within his or her knowledge. If the accused failed to do so, the trial judge was entitled to tell the jury that "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 jury may properly consider." The New South Wales Court of Criminal Appeal approved a direction to that effect in R v Guiren[37]. While dock statements were permitted, a New South Wales judge would have been astonished to be told that the accused was saying nothing at all in answer to the Crown case. But since RPS and Azzopardi – even in New South Wales, where this case was tried – there is no longer any general expectation that the accused will answer any part of the prosecution case. 29. Thus, the prosecution's duty to call certain witnesses, the onus of proof and the absence of an expectation that the accused will give evidence limit the circumstances in which a judge may give a failure-to-call-a-witness direction in a criminal trial. But if the accused does more than join issue with the prosecution case, if the accused sets up an affirmative evidentiary case, I think that the judge can still give a failure-to-call-a-witness direction. 30. The paradigm case for such a direction is the alibi case. If the accused asserts that he was with his friend in another place when the crime occurred, the unexplained failure to call the friend to support the alibi has traditionally given rise to a failure-to-call-a-witness direction. Until RPS and Azzopardi were decided, the judges and the criminal Bar readily accepted that it was a proper direction. And I do not see how consistently with principle and precedent, those two cases necessarily prevent the judge giving a failure-to-call-a-witness direction when the accused sets up an affirmative evidentiary case. 31. Given the state of the case law and practice when the present charges were heard, the learned trial judge was on solid ground in thinking that he could give the direction that he gave. In fact, the principle that the learned trial judge applied was applied more than 180 years ago in R v Burdett[38] to a factual situation that was even weaker from the prosecution view point than the present case. In Burdett, the trial judge had directed the jury that there was evidence from which they could infer that the accused had published a seditious libel in the county of Leicester. The judge went on to tell the jury that, in determining whether the accused had published the libel in that county, they could take into account that he had not called evidence to rebut the inference. At the time an accused person was neither a competent nor a compellable witness. But the accused could have rebutted the inference by calling the person who had delivered the libel to a third party. The person who delivered the letter was a "professional friend" of the accused. The Kings Bench discharged a rule nisi seeking a new trial on the ground of misdirection. Abbott CJ said[39]: