High Court of Australia Dixon C.J. McTiernan, Fullagar, Taylor and Windeyer JJ. Stuart v The Queen [1959] HCA 27 ORDER Application for leave to appeal refused. Cur. adv. vult. The Court delivered the following written judgment:— June 19 Dixon C.J., McTiernan, Fullagar, Taylor and Windeyer JJ. Certain features of this case have caused us some anxiety, but we are of opinion that it would not be in accordance with the principles governing the exercise of our jurisdiction to give special leave to appeal after a conviction upon indictment to grant this application. Stuart, the applicant, was convicted of murder after a trial in Adelaide before the Supreme Court of South Australia, and was sentenced to death. He appealed to the Court of Criminal Appeal of South Australia against his conviction, but his appeal was dismissed. From that decision dismissing his appeal he now seeks special leave to appeal to this Court. The crime of which the prisoner has been found guilty was committed at Thevenard near Ceduna on Saturday, 20th December 1958. On that afternoon a girl aged nine years who had been playing on the beach was raped and murdered in a cave by the seashore. Her body was found there on that night by those searching for her. It is unnecessary for us to say anything of the horrifying details of the crime; it is enough to state that there was nothing to be seen which would identify the guilty man, unless it be some footprints which next morning were traced by black trackers from the cave to a pool of water and thence back and to a roadway above. The applicant is an aboriginal of the Arunta tribe, not quite of the full blood, aged about twenty-seven years. He had come to Ceduna on the previous day with a travelling show by which he was employed. On Monday 22nd December, that is two days after the commission of the crime, at about ten o'clock at night a party of six officers of police went to the place where by that time the prisoner was quartered and took him to the police station. There he was questioned for some time. According to the evidence of the police officers, at first he denied all implication in the crime and then, by steps which it is needless to trace, came to admit it and described the circumstances. A confession was typed out, and this he signed in block letters. He was charged with murder and locked up. Next morning in the cells, so the evidence of the police officers stated, he made further admissions of guilt when they showed him certain things found in the cave and questioned him about them. He was warned, they said, that he need not answer and that his answers would be given in evidence. The confessional statements of the previous night and these admissions formed the substance of the case against the prisoner. All that was added to connect him with the crime was an opinion expressed by the black trackers that the footprints on the beach were his. There was of course much evidence besides, and none of it was inconsistent with his guilt, but it was not evidence which implicated him as the author of the crime. The prisoner applied to the Law Society for legal aid and upon his trial was represented by counsel. He was arraigned before Reed J. and pleaded not guilty. It was not then suggested, nor does it appear to have been suggested by anybody at any stage, that he needed an interpreter, and, of course, the evidence of the officers of police as to the confessional statements must have appeared in the depositions, and it necessarily implied a sufficient mastery of spoken English. Now, however, there is filed in this Court in support of the application an affidavit sworn by a deponent, Mr. T. G. H. Strehlow, who apparently is not without authority in such matters, stating that the Arunta language is the only tongue in which the prisoner has any "complete fluency of expression", and that he is considerably handicapped when confined to the English language, his knowledge of which is "inadequate", and that the confession "could not have been dictated by a totally illiterate aboriginal". Counsel for the applicant did not think fit to raise any question of his understanding of English at the proper time, which was, of course, on the arraignment, and neither Mr. Strehlow's affidavit nor any evidence to a similar effect was put before the Court of Criminal Appeal. Generally speaking, this Court is confined on appeal to the material which was before the court appealed from: see e.g. Victorian Stevedoring and General Contracting Co. Pty. Ltd. v. Dignan [1] . But in any case it is entirely consistent with this affidavit that the applicant was fully capable of understanding and answering questions put to him and of describing intelligibly simple acts and events. It is to be observed that the objection to the police evidence appears to have been based throughout on alleged extortion by violence and threats rather than on any inability of the applicant to understand questions put to him. Having regard to all the circumstances, we do not think that a ground for granting special leave is disclosed by Mr. Strehlow's affidavit. 1. (1931) 46 C.L.R. 73, at pp. 109, 110. The next ground of the application relates also to the confession evidence, and arises in this way. At the commencement of the trial counsel for the applicant, knowing or believing that the crown prosecutor proposed to open to the jury the substance of the alleged admissions and confession, asked the learned trial judge to rule that these matters should not be opened. Where a serious question of admissibility of evidence is raised by the defence at this stage of a criminal trial, it is a usual course for the matter to be dealt with then and there on voir dire in the absence of the jury. But we are told that, when the application for the ruling was made, counsel for the Crown informed the court that upon consideration of the evidence taken at the preliminary inquiry he could see no reason why he should not open the whole case to the jury. At the same time, it is said, he also informed the presiding judge that, if the defence undertook, when the evidence came to be tendered, to call evidence to substantiate the allegations of violence and threats which had been suggested to the police witnesses during their cross-examination at that inquiry, he would refrain from pursuing this course. Counsel for the applicant declined to give any such undertaking, and his Honour declined to give the ruling sought. Thereupon, counsel for the Crown, believing that there was no sufficient reason why he should not open fully to the jury, proceeded to do so. Obviously if, thereafter, the evidence had been rejected, it would have been a clear case for the discharge of the jury. But, when the evidence came to be tendered, no objection was then taken to it. Nor, in spite of what had occurred at the commencement of the trial, was any reference made by either counsel or by the learned trial judge to the question whether there should be an examination upon the voir dire in order to determine whether the evidence should be submitted to the jury. Counsel for the applicant informed us upon the present application that he did not then object because he considered that the reference to the admissions and confession which had already been made would inevitably prejudice his client upon any future trial and, apparently, he preferred to rest upon his original objection, which is now made a ground of this application for special leave to appeal. The substance of the objection now made lies in the fact that the crown prosecutor opened to the jury evidence the admissibility of which counsel for the applicant wished to challenge. But the learned trial judge had a discretion in the matter, and we do not think it can be maintained that it was wrongly exercised. It does not even appear that an application was made that the admissibility of the evidence should be decided then and there on voir dire. The matter seems to have been put merely as one of propriety. The crown prosecutor had intimated that he would not seek to open the evidence if counsel for the applicant undertook to object at the proper time and call evidence to substantiate the suggestions made in cross-examination at the preliminary inquiry. When such an undertaking was refused, we can see nothing unreasonable in the course which the learned judge took. It is true that, the question of admissibility being raised, the burden lay on the Crown of proving that the statement was voluntary, and it was open to counsel for the applicant to rely simply on cross-examination without calling his client. It is true also that, if his client were called, he would be subject to cross-examination. But that would have been in the absence of the jury. When counsel for the applicant declined the invitation of the crown prosecutor, it is impossible to say that the ruling of the learned judge involved any such erroneous exercise of discretion as could justify this Court in granting special leave to appeal. The effect of his Honour's initial ruling and of counsel's omission to take objection at the proper time was not, of course, to conclude the question of voluntariness. The case which the applicant sought to make on the confession and admissions was put clearly and emphatically to the jury in the judge's charge, although not a great deal of cross-examination had in fact been directed to it. They were told first that the Crown case was that they "should act upon the confession as having been obtained properly without any violence, or threat of violence, without any promise or inducement being held out and without the police taking any improper advantage of their position". Later in the charge his Honour discussed the evidence on the subject, though perhaps not very favourably to the prisoner. Having done so, he gave this direction: "This, gentlemen, is a most important question for you to consider, and I will say at once, that unless you are satisfied beyond any reasonable doubt that the evidence, the questions and the answers, the answers obtained as a result of the questions, and the defendant's statement, were obtained without any threat of violence, without any violence, without any promise or inducement, without any conduct on the part of the police which was an unfair taking advantage of their position, well gentlemen, then you will no doubt reject the confession, and the evidence of the answers, which are very much to the same effect." But before the summing up was reached a situation arose at the trial out of which arises another ground on which the present application is based. It appears that in South Australia a prisoner's right to make a statement from the dock may be exercised by his reading a written statement prepared in advance. Had he been able to read such a statement, that is the course which the prisoner's counsel would have desired him to take. Upon instructions, a statement had in fact been prepared on his behalf, but of course he could not read it. A request was therefore made by his counsel that it be read for him by an officer of the court. To this course the Crown objected and the objection was upheld as one upon which the Crown was entitled to insist. His Honour said, however, that counsel might prompt the applicant in the making of a statement. A short adjournment was then given for the purpose of his counsel consulting with the prisoner. After the adjournment counsel said:— "The defendant will make a statement. I do not know that I can assist him in any way with his statement." The transcript record of the trial proceeds:—"His Honour:—"I said formerly that you would be allowed to prompt the defendant on any topic, and ask him things and assist him as far as possible, in order to allow him to make his statement. In other words, assist him to cover everything that he desires to put to the jury. I do not wish any misunderstanding about that. Now how do you wish the statement to be given?" Mr. O'Sullivan:—"I want him to stand up and say what he wishes to say, and I am prepared to leave it at that"." In the ultimate result, the prisoner's statement consisted of what may be described as a few, and relatively inarticulate, words which denied his guilt and alleged ill-treatment on the part of the police officers who had interrogated him. It was as follows:—"I cannot read or write. Never been to school. I did not see the little girl. I did not kill her. Police hit me. Choke me. Make me said these words. They say I kill her. That is what I want to say." (His counsel then spoke to him.) "That is what I want to say. Someone to read this out for me." We agree with the Full Court that the applicant had no legal right to have his prepared statement read for him. At the same time, it could, of course, have been done with the consent of the Crown, and, in the special circumstances of this case, one might perhaps have expected consent to be given. What the statement contained we do not know: the prisoner's counsel refused to have it marked for identification. But the case against the applicant rested almost entirely on the "confessional" evidence, and his case as to that had been made sufficiently clear by the cross-examination. It may well be thought that the course which the learned judge was prepared to allow his counsel to follow, and which he declined to follow, was a course more favourable to the applicant than that which his counsel wished to adopt. It came very near to allowing him to examine the applicant in chief without having him sworn or cross-examined. In any case no legal right of the applicant was denied. The Court of Criminal Appeal has held that no miscarriage of justice occurred by reason of what took place, and we do not think that any ground which would justify the intervention of this Court can be found therein. There is yet another matter. In addressing the jury at the conclusion of the evidence counsel for the Crown was at some pains to inform them that the prisoner had not been denied an opportunity of putting his version of the facts before them for their consideration. There is some doubt as to the precise manner in which this was done, but it sufficiently appears that he told the jury that they should not be misled by what had taken place into thinking that the applicant suffered any injustice. He then pointed out to them that upon his trial the applicant had the right to make an unsworn statement or, alternatively, to give evidence from the witness box and to be asked questions. The doubt as to what the learned counsel exactly said exists because there is neither a shorthand note nor complete agreement as to what was said. The versions are to be seen in the judgment of the Court of Criminal Appeal. On either version, the jury was in effect told by counsel that the applicant had a right to give evidence on oath and subject to cross-examination. And any such statement is capable of being understood as inviting the jury to take into account against the accused the fact that he is apparently unwilling to exercise that right. In these circumstances, it was said, the observations in question amounted to a contravention of s. 18 II of the Evidence Act 1929-1933 which provides that "the failure of any person charged with an offence to give evidence shall not be made the subject of any comment by the prosecution". Counsel for the Crown contended that there had been no such contravention, substantially because there had been no express allusion to the "failure" of the prisoner to give evidence. It was the right to give evidence, not the failure to exercise it, that was the subject of comment. He relied upon the decision of this Court in Bataillard v. The King [1] . But in our view the opinions expressed in that case do not support his contention. The comment in that case was to the effect that the statement of the accused was a statement which was not on oath and not subject to cross-examination, and, while the members of the Court were not prepared to give special leave to appeal from the decision of the Supreme Court of New South Wales, which had held that the comment did not infringe the statutory provision which was in force in that State, they left no doubt that, if the comment had been accompanied by any circumstance calculated to inform or remind the jury of the fact that the accused person had the right to give evidence on oath and yet failed to do so, they would have regarded it as a contravention. What was said by counsel for the Crown in the present case was in our opinion (whichever of the two versions be accepted) such a comment as is forbidden by the statute. In this respect we are unable to agree with the judgment of the Court of Criminal Appeal. 1. (1907) 4 C.L.R. 1282. The statute gives an important protection to accused persons, and the prohibition which it conveys is peremptory. Prima facie a breach by the prosecution of that prohibition must provide a good ground for the quashing by a court of criminal appeal of a conviction. If it were not so, the statutory prohibition would be without sanction. In the present case, however, there are two considerations which, in combination, would, we think, have justified the Court of Criminal Appeal, even if it had taken the view of counsel's observations which we think correct, in declining to quash the conviction. In the first place, those observations, although we think that they amounted to a comment of the character forbidden by the statute, were—whichever version be accepted—made alio intuitu: the immediate occasion for them is to be found in the altogether exceptional circumstances attending the making of his statement by the applicant. Primarily at least, they were made by way of answer to any suggestion that the accused had not had a fair opportunity of putting his case. A second relevant consideration in this case is that the prohibition contained in s. 18 II of the Evidence Act is directed to "the prosecution" and does not exclude the right of the judge to comment. In fact, in his summing-up, the learned trial judge covered the same ground and informed the jury of the courses which were open to the accused. His comment was clear and emphatic. The effect upon the jury of his Honour's comment, which of course was entirely lawful and appears to have been made independently of the comment of the prosecutor, must have reduced the learned counsel's irregular comment to insignificance. It would, we think, having regard to these circumstances, be taking an unrealistic view if we were to treat the comment by counsel as a ground warranting the exercise of our jurisdiction to grant special leave to appeal. It is not, of course, to be supposed that in every case a lawful comment by the trial judge on a failure to give evidence can have the practical effect of erasing or condoning a prior unlawful comment by the prosecution. The latter can in no sense be treated as merged in the former. In any ordinary case the lawful and the unlawful comment must be presumed to have been cumulative in effect, and the appropriate consequences must be visited upon the latter. The circumstances of the present case are altogether exceptional. As we have said, this case has caused us a good deal of anxiety, but, after full consideration, we are of opinion that no sufficient ground has been shown for granting special leave to appeal. We think we should add that while these reasons were in preparation a communication was made on behalf of the Crown to the Principal Registrar of material said to bear on the prisoner's capacity to understand English. This communication we have entirely ignored and we do not think it ought to have been made.