Evidence of silence

Mason CJ, Deane, Toohey and McHugh JJ (would grant special leave but dismiss the appeal)

1. The facts and the issues involved in these applications for special leave to appeal are set out in the judgments of other members of the Court.

2. A person who believes on reasonable grounds that he or she is suspected of having been a party to an offence is entitled to remain silent when questioned or asked to supply information by any person in authority about the occurrence of an offence, the identity of the participants and the roles which they played. That is a fundamental rule of the common law which, subject to some specific statutory modifications, is applied in the administration of the criminal law in this country. An incident of that right of silence is that no adverse inference can be drawn against an accused person by reason of his or her failure to answer such questions or to provide such information. To draw such an adverse inference would be to erode the right of silence or to render it valueless…

…

3. That incident of the right of silence means that, in a criminal trial, it should not be suggested, either by evidence led by the Crown or by questions asked or comments made by the trial judge or the Crown Prosecutor, that an accused's exercise of the right of silence may provide a basis for inferring a consciousness of guilt. Thus, to take an example, the Crown should not lead evidence that, when charged, the accused made no reply. Nor should it be suggested that previous silence about a defence raised at the trial provides a basis for inferring that the defence is a new invention or is rendered suspect or unacceptable.

…

6. In the present case, Priestley J.A. expressed the view that there is a "significant distinction" between inferring a consciousness of guilt from silence and denying credibility to a late defence or explanation by reason of earlier silence. His Honour suggested that in the first case there can be inferred an admission by reason of the consciousness of guilt whereas in the second case rejection of the defence or explanation has no evidentiary value in itself, though its effect may be to leave the prosecution case unanswered, or at least not answered by that defence or explanation. We acknowledge that there is a theoretical distinction between the two modes of making use of the accused's earlier silence. However, we doubt that it is a distinction which would be observed in practice by a jury, even if they understand it. And, what is of more importance, the denial of the credibility of that late defence or explanation by reason of the accused's earlier silence is just another way of drawing an adverse inference (albeit less strong than an inference of guilt) against the accused by reason of his or her exercise of the right of silence. Such an erosion of the fundamental right should not be permitted. Indeed, in a case where the positive matter of explanation or defence constitutes the real issue of the trial, to direct the jury that it was open to them to draw an adverse inference about its genuineness from the fact that the accused had not previously raised it would be to convert the right to remain silent into a source of entrapment. Accordingly, the distinction is, in our view, unsound.

7. If all that had been involved in the present case had been the exercise by Maiden of the right to remain silent, it would be clear that evidence was inadmissible to establish that it had not been suggested, in cross-examination of the witness James Crawley on the committal hearing, that Maiden had previously told him that the killing of the deceased, Mark White, had been accidental. In fact, however, as the learned trial judge pointed out to the jury, Maiden had not remained silent about the killing of the deceased. He had participated in a record of interview with the police in which he had asserted that he and Petty had agreed to kill Mark White and that Petty had actually killed him. Neither on the committal hearing nor, apparently, on any other occasion prior to the trial had Maiden withdrawn or corrected that allegation against Petty to anyone in authority. Obviously, his assertion to the police that Petty had killed Mark White was inconsistent with the defence raised at the trial that he had himself accidentally killed White while defending himself from attack.

…

9. It should be stressed that nothing in what is written above should be understood as suggesting that evidence of a failure to raise some defence or matter of explanation at committal proceedings is ordinarily admissible at the trial as a basis for drawing some adverse inference against the accused. Evidence of a failure, on the committal hearing, to ask a question, make a submission, or advert to a claimed defence is not, of itself, so admissible. The right to remain silent applies to the conduct of a committal proceeding and silence maintained provides no basis for any inference against an accused. What makes the present case different is the fact that Maiden's conduct constituted not an exercise of the right of silence but an adherence, up to the time of trial, to an allegation that Petty had murdered White. It was the making and implied maintenance of that admittedly false allegation of murder by another which the jury was entitled to take into account in determining whether the defence advanced on the trial was spurious. The re-examination was admissible once the suggestion was made by the defence that Maiden had abandoned his assertion that Petty had murdered the deceased in a conversation with a Crown witness before the commencement of the committal proceedings.

10. The one aspect of the learned trial judge's direction which has caused us real concern is his Honour's statement:

“But that does not mean that, as Maiden has chosen not to remain silent and as he did offer at least one version of what happened when he made his record of interview on 15 February, you cannot take into account in judging the weight to be given to (Maiden's) explanation now put forward so late his failure to put it forward either at the time of his record of interview or during the committal proceedings ... but at any event in time for the Crown to investigate it fully" (emphasis added).

It is arguable that the comment which we have emphasized at the end of the above extract carries with it an inference that Maiden was under some duty to disclose a defence of accident or lack of relevant intent before the trial so that the Crown could investigate it. As we have sought to make clear, Maiden was under no such duty. The comment was, however, made in a sentence which immediately followed a direction to the jury that they were not "permitted to draw any inference or conclusion of guilt from Maiden's failure to raise this explanation that Mark White's death was an accident at some earlier stage". In that context and in view of the earlier words which we have emphasized in the above extract, it seems to us that his Honour's comments should be, and would have been, understood as referring not to mere silence but to what was, in effect, a persistence in the unwithdrawn allegation that Petty had killed Mark White. So understood, his Honour's comments do not seem to us to be unfair or unjustified. Indeed, in the circumstances of the present case, it was open to the trial judge to go further and to point out to the jury that the allegation of murder by another, which Maiden had made to the police and allowed to remain unwithdrawn and unqualified right up to the trial, was completely inconsistent with the defence raised at the trial and would obviously have been likely to divert the focus of police investigation and prosecution preparation away from the issues which Maiden would raise at the trial.

…

11. It follows from what has been said above that the directions given by the learned trial judge were not unduly harsh or unfavourable from Maiden's point of view. We would grant special leave to appeal but dismiss the appeal. Petty's application for leave to appeal was based on Maiden's and we would make similar orders in his case.

Brennan J (would grant special leave and allow the appeals)

2. In referring to the absence of any suggestion by Maiden prior to the trial that Mark White's death was accidental, his Honour sought to distinguish between the giving of weight to Maiden's unsworn statement at the trial and the drawing of an inference of guilt. With respect, the distinction is illusory. On the facts of this case, there was no reason for attributing to Maiden's silence any capacity to diminish the weight to be given to his unsworn statement other than its capacity to support a guilty inference…

…

5. However, in this case Maiden elected to respond to questions by the police, and the jury were entitled to draw whatever inferences were reasonably open from the responses he made: Woon v. The Queen [1964] HCA 23; (1964) 109 CLR 529. The explanation of White's death which Maiden proffered in his record of interview was that Petty had killed White, and he did not withdraw that allegation at any time before trial. It was open to the jury to consider whether Maiden's making, and his delay in repudiating, his allegation against Petty was occasioned by Maiden's consciousness of his own guilt. These were facts from which a guilty inference could be drawn. As it was open to the jury to draw a guilty inference from these facts, it was open to them to give less weight on account of these facts to Maiden's assertion in his unsworn statement that White's death was an accident. The comments of the learned trial judge in this respect were not erroneous.

6. Next, there is the circumstance that the defence of accident was disclosed too late to allow the Crown an opportunity to investigate it fully. Unless Maiden was under a duty to inform the Crown before the trial that he proposed to raise a "defence" that White's death was an accident, it was impermissible to draw an adverse inference from the raising of the defence at a stage of the trial which left the Crown with insufficient time to investigate it fully. A criminal trial is the prime example of an adversarial proceeding. Its adversarial character is substantially unrelieved by pre-trial procedures designed to limit the issues of fact in genuine dispute between the Crown and an accused. The issues for trial are ascertained by reference to the indictment and the plea and, subject to statute, the Crown has no right to notice of the issues which an accused proposes actively to contest. The Crown bears the onus of proving the guilt of an accused on every issue apart from insanity and statutory exceptions. The Crown must present the whole of its case foreseeing, so far as it reasonably can, any "defence" which an accused might raise, for the Crown will not be permitted, generally speaking, to adduce further evidence in rebuttal on any issue on which it bears the onus of proof: Shaw v. The Queen [1952] HCA 18; (1952) 85 CLR 365, at pp 379-380. The Crown obtains no assistance in discharging that onus by pointing to some omission on the part of an accused to facilitate the presentation of the Crown's case or to some difficulty encountered by the Crown in adducing rebuttal evidence which an accused could have alleviated by earlier notice. Even where an accused proposes to raise an alibi, there is no common law duty to give the Crown notice of the alibi. It was necessary to legislate to require notice of an alibi to be given to the Crown before trial, although a failure to give notice of an alibi might result in the Crown being permitted to call evidence in rebuttal if the alibi is first set up during the defence case: Killick v. The Queen [1981] HCA 63; (1981) 147 CLR 565, at pp 569-570. In a criminal trial, an accused is entitled to put the Crown to proof of any issue the onus of which rests on the Crown without giving prior notice of the ground on which he intends to contest the issue. If the ground be some matter of fact, an accused is entitled to abstain from giving notice of the ground until a witness is called during the trial to whom the matter of fact can and should be put.

Dawson J (would refuse special leave)

5. On 16 February 1988, Maiden signed a record of interview which was subsequently admitted in evidence at his trial without objection. In his answers Maiden described what had happened after he, Petty and the deceased had left the station wagon on the night of 25 November 1987. He said that previously during the afternoon of 25 November 1987 Petty had said that he was going to kill the deceased. He said that when he, Petty and the deceased, Mark White, had left the station wagon: "Mark was lingering behind and Joe (as Petty was called) said to me, 'I'll kill him here', and I said, 'Why?' and he said, 'So I could get him out of the way and use Danny for the truck up Queensland.' I said, 'I don't want to have anything to do with it'. He said to me in a very angry voice, 'Just throw him on the ground.'" Maiden's answers continued:

"Well I said I wanted to have a cigarette so I sat down and had a smoke. By that time Mark caught up and sat down next to me and had a cigarette. After that Joe said, 'Now', so I pushed Mark over and pissed off. Joe yelled out to me to come back. I came back, it was dark. He said to me, 'Go and dig a shallow grave', so I picked up the shovel and went and dug a hole. After that I went back to find Joe. I found him then I seen Joe sitting on top of Mark and Mark was dead and Joe told me that he strangled him in a boasting manner. He said, 'I killed him with my own two hands.'"

6. On 17 February 1988, Petty signed a record of interview which was admitted in evidence at his trial without objection. He described what happened after he, Maiden and the deceased left the station wagon on the night of 25 November 1987. He said that he heard an argument between Maiden and the deceased, who were some distance away. He said that he subsequently learned that it was over the attention which Danielle Curry had been paying Maiden. He said that he went to where Maiden and the deceased were. His account in the record of interview continued:

"Stephen (i.e. Maiden) was laying on his back with Mark on top of him. Stephen had his arm around Mark's neck and a scissors hold with his legs around Mark, I think around his legs. As soon as Stephen knew I was there he started yelling at me to shut Mark up and help hold him. I threw a fruity, started yelling about the noise they were making and told Stephen to let Mark go and pulled one leg off Mark then his arm from around Mark's neck. At the time I didn't take any notice of Mark and thought he was putting on an act, because I was going mad at Stephen because of the noise. Stephen tried to explain to me what happened and I didn't take any notice of him or listen to him. I grabbed Mark's arm to get him off the ground and he didn't move."

Petty went on to describe in his answers how they realized that the deceased was dead and how they buried the body.

…

11. The prosecution indicated that it intended to lead from James Crawley in re-examination the fact that the conversation put to him in cross-examination had not been put to him when he was cross-examined at the committal proceedings. Objection was taken by counsel for the applicants but the trial judge permitted the prosecution to take this course. In giving his ruling, he said:

"The purpose for which the Crown seeks to lead this fact is to enable it to submit to the jury that little weight should be given to this exculpatory explanation, given for the first time at a stage when it cannot fully be investigated. It is, of course, important that the jury should also be directed that it is not entitled to draw any inference from an accused person's exercise of his right to remain silent. That was made clear in Woon v. The Queen [1964] HCA 23; (1964) 109 CLR 529 at 535. The jury will have to be told that no inference of guilt could be drawn from the mere failure of Maiden to raise this explanation at the committal proceedings. It is simply that the explanation now offered for the first time cannot fully be investigated."

In directing the jury, the trial judge said:

"I should, however, give you this direction. The law provides that any person accused of a crime may remain silent, he may say nothing by way of explanation, and that, if he does remain silent, no inference or conclusion of guilt may be drawn from his silence. That rule of the law is to ensure that no-one will be forced to incriminate himself by feeling obliged to answer questions. You will recall that, throughout the evidence which had been given to the police officers in this trial, whenever either of these two accused were asked any questions by a police officer, those questions were preceded by a caution that he was not obliged to say anything unless he wished to. You must have heard the wording of that caution dozens of times during the evidence in this case. That caution means exactly what it says. If Maiden had remained silent, if he had said nothing but not guilty, if he had not made a statement to the police in his record of interview, if he had not made a statement here in court right up to the moment when you bring back your verdict, you would be directed that no inference or conclusion of guilt can be drawn from that silence. I direct you, therefore, that you are not permitted to draw any inference or conclusion of guilt from Maiden's failure to raise this explanation that Mark White's death was an accident at some earlier stage. But that does not mean that, as Maiden has chosen not to remain silent and as he did offer at least one version of what happened when he made his record of interview on 15 February, you cannot take into account in judging the weight to be given to this explanation now put forward so late his failure to put it forward either at the time of his record of interview or during the committal proceedings, at least when James Crawley was giving evidence to which such an explanation was directly relevant or at some later time, but at any event in time for the Crown to investigate it fully. It is a matter for you, members of the jury, what weight you give to this explanation now put forward by Maiden that this was all an accident."

12. The applicants submitted that the trial judge erred, first, in directing the jury that they might draw an inference adverse to the applicant Maiden from the exercise of his right to silence and, secondly, that they might draw an inference adverse to the same applicant from the manner in which his solicitor cross-examined the witness James Crawley at the committal proceedings.

13. That is the way in which the submissions were expressed, but it may be observed at the outset that the trial judge did not invite the jury to draw an inference adverse to the applicant from any exercise by him of his right to silence. On the contrary, it was the fact that the applicant did not remain silent which formed the basis of his Honour's direction. The jury were required to evaluate the unsworn statement which the applicant made at his trial for the purpose of arriving at their verdict. What his Honour told the jury was that, in determining what weight they should give to that unsworn statement, they were entitled to have regard to the version of events previously put forward by the applicant in his record of interview and by way of the cross-examination of James Crawley. True it is that his Honour referred to the unsworn statement as an "explanation now put forward so late" but that reference was in the context of a previous explanation given by the applicant and his Honour had in unequivocal terms previously given a direction that no inference or conclusion of guilt could be drawn from silence on the part of the applicant. In the same way, his Honour directed the jury that they were entitled to have regard to the manner in which the committal proceedings were conducted on behalf of the applicant in evaluating the account of events given by the applicant in his unsworn statement, an account which first emerged during the cross-examination of James Crawley during the trial. The jury were not told that they might conclude from those circumstances that the applicant was guilty; they were told that they might take those circumstances into account in judging the weight to be given to the applicant's explanation at the trial.

14. The right to silence is a convenient, if somewhat imprecise, expression, which conveys the traditional objection of the common law to any form of compulsory interrogation. It embraces the absence of any obligation on the part of a person suspected of having committed a crime to answer questions by the police or other persons in authority. The exercise of the right to silence cannot, of itself, amount to an admission of any kind or reflect a guilty conscience, and a trial judge should so instruct a jury where an accused has chosen not to answer questions whether at or before the trial. The trial judge should tell the jury that the accused was quite entitled to remain silent and that they should not infer guilt from the fact that he exercised his right to do so.

15. But that does not mean that the choice by an accused to exercise his right to silence can play no part in the processes by which a jury arrives at its verdict. They may not say that he is guilty because he refused to answer questions; he had a right to do that. But if the accused gives evidence or makes an unsworn statement, having previously refused to answer questions, the jury are entitled, in assessing the weight to be given to the evidence or the unsworn statement, to have regard to the fact that he is advancing his account for the first time at trial and that he did not avail himself of an earlier opportunity to tell his version of events. Of course, there will frequently be a perfectly good reason why the accused chose to remain silent previously, which will mean that his silence is of no assistance in evaluating his evidence. For instance, his solicitor may have been present when he was questioned and may have advised him not to answer any questions. On the other hand, the explanation which he advances at trial may be so simple, straightforward and easily established at the time of questioning that his failure to advance it at the first opportunity casts doubt upon it when it is eventually given. If the jury in those circumstances do not believe the explanation given by the accused and conclude that he is guilty, they do not infer guilt from the exercise by him of his right to silence. But they may properly conclude that he is guilty because they disbelieve his explanation and the evidence called by the prosecution establishes his guilt beyond reasonable doubt in the absence of any explanation.

Gaudron J (would grant special leave and allow the appeal)

9. An inference that an explanation is false merely because it was not advanced at some earlier time is different from an inference drawn from circumstances, such as the possession of recently stolen goods, which so obviously suggest some act or omission on the part of the person concerned that an inference to that effect will almost certainly be drawn unless some other explanation is forthcoming. See, as to the inference drawn from possession of recently stolen goods, Trainer v. The King [1906] HCA 50; (1906) 4 CLR 126, per Griffith C.J. at p 132; Bruce v. The Queen [1987] HCA 40; (1987) 61 ALJR 603; 74 ALR 219. See also Gilson v. The Queen [1991] HCA 24; (1991) 65 ALJR 416; 100 ALR 729. So too, it is different from an inference of consciousness of guilt drawn from conduct or demeanour (which, of course, may include silence) when taken in combination with other evidence. See, as to an inference of consciousness of guilt, R. v. Grills [1910] HCA 68; (1910) 11 CLR 400; Woon v. The Queen [1964] HCA 23; (1964) 109 CLR 529. The account which was given by Maiden in his record of interview (if found to be a false account), and which was maintained by his silence until the trial, is capable of supporting an inference of consciousness of guilt. However, the present case is concerned with a different inference which bears only on the truth of an explanation and the sole foundation for which is the failure to advance that explanation at some earlier time. That is because the matter was left to the jury on the basis that it might be inferred that the account given by Maiden at the trial was false or, which is the same thing, that that account might be given less weight merely because it was not raised earlier.

10. Whether, as a matter of ordinary experience, the mere failure to advance an explanation will support an inference that there is no innocent explanation and, consequently, that a later explanation is false depends very much on the precise circumstances involved. As a matter of ordinary experience, an inference of that kind will not readily be drawn in circumstances involving a clear indication that there is no obligation to explain, as, for example, when a police caution is administered. Translated into a forensic context, elementary logic and fairness require that, if a police caution has been administered, no inference should be drawn merely from the failure to answer questions or to volunteer information. See Reg. v. Ireland [1970] HCA 21; (1970) 126 CLR 321, at p 331, where it was said that a failure to answer questions after a caution "was not relevant: it would not be probative of any relevant fact or circumstance". See also Paterson v. Martin [1966] HCA 68; (1966) 116 CLR 506, a case where, although no caution had been administered, it was said (at p 511) that the circumstances of the refusal to answer did "not afford any ground for an inference" as there propounded.

Gaudron ACJ, Gummow, Kirby and Hayne JJ (would allow the appeal)

1. The appellant was charged, in the District Court of New South Wales, with two counts alleging that he had had carnal knowledge of his daughter and six counts alleging that he had had sexual intercourse with her. The offences were alleged to have occurred between various dates, the earliest of which was 6 February 1983 (when the complainant was four years old) and the latest of which was 31 July 1993 (by which time the complainant was 14 years old). He pleaded not guilty. The trial judge directed the jury to acquit the appellant of one of the charges of sexual intercourse; the jury returned verdicts of guilty to four of the remaining five counts of sexual intercourse and verdicts of not guilty to the other count of sexual intercourse and the counts of carnal knowledge.

2. The appellant appealed to the Court of Criminal Appeal of New South Wales against his convictions but that appeal, and his application for leave to appeal against sentence, were dismissed. By special leave, he now appeals to this Court.

3. The determinative issue in this appeal is what comments or directions a trial judge can make or give to a jury when an accused person does not give evidence. In order to understand the context in which that issue arises in this matter, it is necessary to say something about the course of the appellant's trial. It is convenient, while describing what happened at the trial, to notice briefly some of the other issues that were argued in the appeal.

4. The prosecution case against the appellant depended largely on the evidence of the complainant. She gave an account of various acts of sexual misconduct by the appellant. She swore that, on a number of occasions, the appellant had had penile intercourse with her and, on other occasions, had digitally penetrated her. No other eyewitness was called; no circumstantial evidence was given; no expert evidence was adduced. Undoubtedly, then, the complainant's evidence was critical.

5. One other piece of evidence loomed large in the prosecution's case. The complainant's mother and grandmother gave evidence of conversations they had had with the appellant after the complainant first told her mother that the appellant had, as she put it, "been fingering me and ... made me have intercourse with him". The complainant's mother swore that, in one of those conversations, the appellant had said to her that "I never had intercourse with her [the complainant] but everything else she said is true." According to the complainant's mother she asked the appellant, "How long has it been going on?" and he replied, "Since she was about 10."

…

15. We turn then to deal with the central issue in the appeal: the judge's directions to the jury about the significance of the appellant's not having given evidence. In his charge to the jury on this aspect of the matter, the trial judge began by telling the jury that an accused person may, but is not obliged to, give evidence and that the prosecution bears the onus of proof. He said that the jury "must not conclude that [the appellant] has elected not to give evidence because he is guilty of the offences charged against him". He observed that there are many reasons why an accused person may not want to give evidence and told the jury that they "must not speculate as to why [the appellant] has not given evidence". No complaint is made (or could be made) about these parts of the trial judge's charge. They have long been accepted to be an important warning to the jury (in jurisdictions where judicial comment on the accused's failure to give evidence is permitted) against adopting an impermissible chain of reasoning.

16. The appellant's complaint centres upon what the judge then said to the jury. It is as well to set it out in full, numbering the paragraphs that are quoted. The trial judge said…

…

17. Five particular elements of this part of the charge ("the impugned directions") should be noted.

First, the trial judge told the jury that the appellant's election not to contradict the evidence given by the complainant's mother of what was said to be a partial admission, could be taken into account by the jury in "judging the value of, the weight of" the prosecution's evidence about it (par (1)).

Secondly, he told the jury that in the absence of denial or contradiction of the evidence given of the partial admission they could "more readily" discount any doubts about that evidence and "more readily" accept the evidence (par (2)).

Thirdly, he told the jury that if it was reasonable, in the circumstances, to expect some denial or contradiction of the prosecution evidence, they were entitled to conclude that the appellant's evidence would not have assisted him in the trial and that the absence of denial or contradiction was a circumstance which could lead them more readily to accept the evidence given by the witnesses for the prosecution (pars (3) and (4)).

Fourthly, he said that the appellant's election not to give evidence could not fill any gaps in the prosecution case but could enable them to feel more confident in relying on the evidence tendered by the prosecution (par (6)).

Finally, he said that the absence of evidence from the accused meant that the version of events put in cross-examination of the witnesses for the prosecution was not supported by evidence (par (7)).

18. Consideration of the trial judge's charge about the absence of evidence from the accused must begin with s 20 of the Evidence Act (NSW). That section applies (and applies only) in a criminal proceeding for an indictable offence and provides:

"The judge or any party (other than the prosecutor) may comment on a failure of the defendant to give evidence. However, unless the comment is made by another defendant in the proceeding, the comment must not suggest that the defendant failed to give evidence because the defendant was, or believed that he or she was, guilty of the offence concerned."

The respondent submitted that the trial judge's charge was no more than a "comment" on the failure of the appellant to give evidence and was a comment which did not suggest that the appellant failed to give evidence because he was, or believed that he was, guilty of the offences of which he was charged. We do not accept that the charge should be understood in that way.

19. The respondent's submission seeks to distinguish between a suggestion that the appellant did not give evidence because he was, or believed that he was, guilty and the trial judge's suggestion (in par (3) of the impugned directions) that the evidence the appellant might have given "would not have assisted him in this trial". The suggested distinction is not tenable. Any belief which the appellant held, that his evidence would not have assisted him in his trial, could proceed only from a belief that he was guilty; that is, it could proceed only from a belief that he could not deny or contradict at least some of what had been said against him. No other construction of what was said by the trial judge in that part of his charge was reasonably open to the jury.

20. Section 20(2) should be given no narrow construction inviting the drawing of fine distinctions. In particular, the prohibition contained in the second sentence (forbidding the judge making a comment that suggests the accused failed to give evidence because he or she was, or believed that he or she was, guilty) must be given full operation. In that respect this prohibition should not be treated differently from the prohibition (still operative in some Australian jurisdictions) against a judge making any comment on the failure of the accused to give evidence. To adopt and adapt what was said by Isaacs J in Bataillard v The King, if comment is made about the accused not having given evidence it must not make any "reference, direct or indirect, and either by express words or the most subtle allusion" suggesting that the accused did not give evidence because he or she was, or believed that he or she was, guilty. It has been said that the line between what is permissible and what is not, under provisions which prohibit any comment on a failure to give evidence, may be a fine one. Whether or not that is so, s 20(2) requires a line to be drawn and it should be drawn in a way that gives the prohibition against suggesting particular reasons for not giving evidence its full operation.

…

26. In a civil trial there will very often be a reasonable expectation that a party would give or call relevant evidence. It will, therefore, be open in such a case to conclude that the failure of a party (or someone in that party's camp) to give evidence leads rationally to an inference that the evidence of that party or witness would not help the party's case and that:

"where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstance that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference."

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:

"[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)

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.

…

38. We do not accept that the circumstances of this case were such as to entitle the jury to take any account of the appellant's not giving evidence in assessing what he meant by his statement to the complainant's mother (if, of course, the jury accepted that he made it). While it is true to say that only the appellant knew what he meant by saying (if he did) that "everything else she said is true", the jury should not have been directed as they were.

McHugh J (would allow the appeal)

47. The most obvious breach of s 20 will occur when the judge expresses an opinion which suggests that he or she thinks that the accused has not given evidence because that person is guilty of the offence. However, s 20 of the Act is also breached whenever the judge's summing up contains any direct or indirect reference or any allusion to the "fact" that the accused did not give evidence because he or she was or believed himself or herself to be guilty of the offence. The comment to which the section refers is not limited to the personal opinions of the judge. If the section is to fulfil its evident purpose, "comment" must include the judge's instructions to the jury. For the purpose of the section there is no difference between the judge saying "It is plain that ...", "You may think that ..." and "You are entitled to conclude that ...".

48. It follows that a judge may comment in breach of the section when he or she expresses no personal opinion about the accused's failure to give evidence but leaves a train of reasoning to the jury which invites the jurors to conclude that the accused did not give evidence because he or she was guilty. Thus, the section is breached whenever the summing up, directly or indirectly, encourages or permits the jury to conclude that the accused did not give evidence because that person was or believed himself or herself to be guilty.

49. In my opinion, the learned judge erred in instructing the jury in the general terms in which he did. If the jurors concluded that the appellant did not give evidence as to events within "his own knowledge" because his evidence "would not have assisted him in this trial", they would almost certainly have also concluded that a possible, indeed the most probable, explanation of his failure to testify was that he could say nothing in answer to the charges because he was guilty of the offence. The learned judge's direction, therefore, left to the jury a train of reasoning which implicitly suggested, contrary to s 20 of the Act, that the accused was guilty of the offences concerned. To my mind, it was the use of the words "would not have assisted him in this trial" which tilts the balance in favour of finding a breach of s 20 of the Act. If the passage in the summing up which I have emphasised had been omitted, I do not think that any breach of the section would have occurred.

50. I see no reason why a trial judge cannot direct a jury that, in weighing the evidence, it is entitled to take into account that the accused has given no evidence in respect of any fact which is "easily perceived to be in his knowledge" and in respect of which it is reasonable to expect a denial or explanation from the accused. In my opinion, a jury is entitled, but not bound, to take into consideration that the accused has given no evidence denying or explaining a fact which is within his or her knowledge and which reasonably calls for an answer. That is because the lack of a denial or explanation is a circumstance which indicates that evidence tending to prove that fact is reliable. Furthermore, the failure of the accused to give evidence denying an adverse inference from such a proven fact is a circumstance which entitles the jury to draw that inference more readily.

…

58. In the ordinary course of criminal trials, good reasons for not giving evidence about facts "easily perceived to be in his knowledge" and reasonably calling for an answer are likely to be few. They may include loss of memory, illness, age, low intelligence and similar matters. But jurors should not be prevented from using the silence of the accused where the facts are within his or her knowledge merely because it is a criminal trial or there are several counts in the indictment or because the accused is not required to give evidence or thinks that the case against him or her is weak. No doubt, as this Court pointed out in Weissensteiner, there are cases where the deficiencies in the prosecution case are so great that the silence of the accused is not material even if many of the facts are within the accused's knowledge. In Weissensteiner, Mason CJ, Deane and Dawson JJ thought that if such a deficiency exists, it may also be a good reason for not taking into account the accused's silence. But if such cases exist, they must be rare. Subject to the effect of s 20 of the Act and its counterparts, the silence of the accused may be taken into account whenever it assists the jury in evaluating evidence concerning facts within the knowledge of the accused. It is not easy to think of examples where, although there is a case to go to the jury and there is evidence concerning facts within the accused's knowledge which reasonably call for an answer, the lack of a denial or explanation from the accused could not assist the jury in evaluating that evidence.

Callinan J (would allow the appeal)

108. In my opinion the principles stated by the majority in Weissensteiner can have no application in a jurisdiction in which s 20(2) has been enacted. The directions which were approved in Weissensteiner involve suggestions of the kind which s 20(2) now makes impermissible. It is important to bear in mind that the word which the section uses is "suggest". Very little need be said of an accused with respect to the fact that he or she has not given evidence in order to give rise to a suggestion that the failure to give evidence stems from an awareness of guilt. As Isaacs J pointed out in Bataillard v The King, an implication of guilt may be conveyed, not only by a direct or indirect reference, but also by "subtle allusion". The directions which were approved in Weissensteiner could have conveyed no suggestion other than of guilt and may not be given in jurisdictions in which the Evidence Act or its analogues have been enacted.

109. In my opinion, the purpose of s 20(2) is to enable a trial judge to make comments for the protection and benefit of an accused who has not given evidence and not otherwise. This view is consistent with the Australian Law Reform Commission report, to which I have referred and gives effect to the ordinary meaning of s 20(2).

…

113. I should also say that I agree with the observations of the other members of this Court with respect to judicial instructions in criminal trials, and their observations about any continued application of OGD in New South Wales.

Gleeson CJ (would dismiss the appeal)

1. These two cases concern instructions given to juries at criminal trials in New South Wales as to the significance that may properly be attached to the failure of an accused person to deny or explain inculpatory evidence relied upon by the prosecution. It is for the jury to evaluate the evidence at a trial. But juries often require, and sometimes expressly seek, guidance as to the significance of an accused's failure to give evidence, or failure, when giving evidence, to deal with some matter. In deciding what guidance is proper, a trial judge, or an appellate court reviewing a trial judge's summing-up, must have regard both to general principles and to relevant statutory provisions. Here, the general principles concern the onus of proof, the presumption of innocence, and the evaluation of evidence. The relevant statutory provision is

s 20 of the Evidence Act 1995 (NSW) ("the Evidence Act").

…

4. The point may be illustrated by a variation of an example given by Lamer CJ in R v Noble. Suppose an accused is charged with robbing a bank. The prosecution case includes a video surveillance photograph of a masked man pointing a rifle at a bank teller. So far as can be seen, his appearance generally matches that of the accused. The masked man's forearms are bare, and on his left arm there is a distinctive tattoo. The prosecution calls a witness who says that the accused has such a tattoo. In the context of the case, that is a vital piece of evidence. The accused gives no evidence. Is the failure of the accused to deny that he has a tattoo a matter that can be taken into account in considering the weight to be attached to the evidence of the witness? The majority in the present case would say no, on at least two grounds. The first is that the presence or absence of the tattoo is not a matter peculiarly within the accused's knowledge. (That may be accepted as a factual proposition. A man who is the sole possessor of knowledge as to whether he has a tattoo on his arm must have led a very solitary life.) The second is that what is missing is not evidence of some additional fact which explains, or nullifies the effect of, evidence adduced by the prosecution, but testimonial contradiction. As will appear, I am unable to agree.

…

22. It would be going too far, however, to say that it is never reasonable to expect an accused to give, or call, evidence. If that were the case, then Weissensteiner was wrongly decided. And it is difficult to understand why it is more reasonable to expect an accused to explain away circumstantial evidence than to contradict direct evidence.

23. This Court should adhere to the views expressed by the majority in Weissensteiner.

Gaudron, Gummow, Hayne and Kirby JJ (would allow the appeal)

32. In each of the present matters, the respondent submitted that the trial judge's directions were founded on, or could be supported by reference to, Weissensteiner. The respondent submitted that there was a tension between the decision in RPS and the decision in Weissensteiner which should be resolved. As will be explained, s 20 requires some modification of the language used in the remarks approved in Weissensteiner but, properly understood, there is no tension between the two decisions.

…

34. The fundamental proposition from which consideration of the present matters must begin is that a criminal trial is an accusatorial process, in which the prosecution bears the onus of proving the guilt of the accused beyond reasonable doubt. It is, therefore, clear beyond doubt that the fact that an accused does not give evidence at trial is not of itself evidence against the accused. It is not an admission of guilt by conduct; it cannot fill in any gaps in the prosecution case; it cannot be used as a make-weight in considering whether the prosecution has proved the accusation beyond reasonable doubt. Further, because the process is accusatorial and it is the prosecution that always bears the burden of proving the accusation made, as a general rule an accused cannot be expected to give evidence at trial. In this respect, a criminal trial differs radically from a civil proceeding. As was pointed out in the joint reasons in RPS:

"In a civil trial there will very often be a reasonable expectation that a party would give or call relevant evidence. It will, therefore, be open in such a case to conclude that the failure of a party (or someone in that party's camp) to give evidence leads rationally to an inference that the evidence of that party or witness would not help the party's case".

…

61. What was important in Weissensteiner, and what warranted the remarks that were made to the jury in that case, was that, if there were facts which explained or contradicted the evidence against the accused, they were facts which were within the knowledge only of the accused, and thus could not be the subject of evidence from any other person or source. In other words, Weissensteiner was not a case in which the accused simply failed to contradict the direct evidence of other witnesses. If that were sufficient to warrant a direction of the type given in that case, there would be, in truth, no right to silence at trial.

62. The unusual circumstances of Weissensteiner stand in sharp contrast with the not uncommon case in which an accused is charged with a crime, such as a sexual assault, in which the prosecution case depends largely, if not entirely, upon the evidence of the alleged victim. In that kind of case, while the defence will usually contradict the account given by the victim, there is no basis for concluding that there is any additional fact known only to the accused, and therefore not the subject of evidence at trial if the accused remains silent, which would explain or contradict the evidence given by the victim. The central issue in such a case is whether the evidence called by the prosecution persuades the jury to the requisite standard of the elements of the offence. That will largely depend on the jury's assessment of the evidence of the alleged victim. It does not depend upon the jury inferring that any event or fact took place which was not the subject of evidence. In the words of Mason CJ, Deane and Dawson JJ in Weissensteiner, this type of case would not, therefore, be a case "call[ing] for explanation or contradiction in the form of evidence from the accused". Nor, adopting the language of Brennan and Toohey JJ in Weissensteiner, would it be a case "where the facts which [the jury] 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 reference by Mason CJ, Deane and Dawson JJ to "explanation or contradiction in the form of evidence from the accused" is important. It refers to more than bare contradiction by denial of what is alleged. The accused's plea of not guilty stands as that denial. What is important is that the accused, and only the accused, can shed light on what happened, not just by making a sworn denial of the allegation but by giving evidence of facts which, if they exist, would explain or contradict the evidence tendered by the prosecution.

63. Another important matter to be noted with respect to Weissensteiner is that, as mentioned above, that case was decided in a context in which there was no prohibition on judicial comment with respect to an accused's failure to give evidence. That is not the case with s 20(2) of the Evidence Act. That sub-section enables comment to be made but it contains a prohibition against suggesting that the accused failed to give evidence because he or she is, or believes that he or she is, guilty of the offence charged.

64. There may be cases involving circumstances such that the reasoning in Weissensteiner will justify some comment. However, that will be so only if there is a basis for concluding that, if 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, that a comment on the accused's failure to provide evidence of those facts may be made. The facts which it is suggested could have been, but were not, revealed by evidence from the accused must be additional to those already given in evidence by the witnesses who were called. The fact that the accused could have contradicted evidence already given will not suffice. Mere contradiction would not be evidence of any additional fact. In an accusatorial trial, an accused is not required to explain or contradict matters which are already the subject of evidence at trial. These matters must be assessed by the jury against the requisite standard of proof, without regard to the fact that the accused did not give evidence.

…

67. The qualification to which reference has just been made is this: as already explained, a judge may comment on evidence, not give directions with respect to the evidence. If the circumstances are such as to permit a comment with respect to the failure to offer an explanation, it should be made plain that it is a comment which the jury are free to disregard. If made, it should be placed in its proper context. That requires identifying the facts which are said to call for an explanation and giving adequate directions to the jury about the onus of proof, the absence of any obligation on the accused to give evidence, and the fact that the accused does not give evidence is not an admission, does not fill gaps in the prosecution's proofs and is not to be used as a make-weight. And the comment should not go beyond that made in Weissensteiner, as adapted to refer to the failure to offer an explanation rather than the failure to give evidence.

68. It is to be emphasised that cases in which a judge may comment on the failure of an accused to offer an explanation will be both rare and exceptional. They will occur only if the evidence is capable of explanation by disclosure of additional facts known only to the accused. A comment will never be warranted merely because the accused has failed to contradict some aspect of the prosecution case. Once that is appreciated, the supposed tension between Weissensteiner and RPS disappears. In Weissensteiner, the comment related to the absence of evidence of additional facts peculiarly within the knowledge of the accused; in RPS, there was no question of any additional fact known only to the accused merely the failure to contradict aspects of the prosecution case.

McHugh J (would dismiss the appeal)

86. In my opinion, the directions by the judges did not contravene s 20(2) of the Evidence Act because they did not suggest that the accused persons failed to give evidence because they were, or believed that they were, guilty of the offences charged. Nor were the directions inconsistent with "the right to silence" that is an incident of the common law privilege against self-incrimination. Nor were they inconsistent with the immunity from compulsion to give evidence that is enjoyed by an accused person. Protection of "the right to silence" or the immunity of an accused person from giving evidence does not require any reading down of the express power conferred on the trial judge by s 20(2) to "comment on a failure of the defendant to give evidence". The sub-section contains its own limitation: the judge's comment must not suggest guilt or a belief in guilt. It imposes no other limitation. It is true that RPS v The Queen holds that, independently of s 20, the common law prevents a judge, except in very limited circumstances, from commenting on the failure of the accused to give evidence. But in so far as that decision so holds, its reasoning is inconsistent with the Court's earlier decision in Weissensteiner v The Queen. It is also inconsistent with many statements of principle and decisions in earlier cases in this and other jurisdictions and with the intention of the legislature in enacting s 20(2). In my opinion, the reasoning in Weissensteiner is correct and should be followed in preference to RPS in so far as the two cases conflict, as in my opinion they do.

…

111. [The trial judge’s direction in Weissensteiner was a strong direction. It was not confined to drawing inferences of fact from facts directly proved. It directed the jury that they could infer guilt from the facts proved. It was for that reason that Gaudron J and I dissented in Weissensteiner. In my view, Weissensteiner was decided in accordance with the principle that, in weighing the evidence of the prosecution, the jury is entitled to take into account the failure of the accused to contradict or explain the evidence of the prosecution when evidence from him in contradiction or explanation might reasonably be expected. The majority judges in Weissensteiner cited too much authority in support of that proposition to accept that the directions in that case were upheld on the narrow ground that the accused's failure to give evidence could be taken into account only because he was in possession of facts additional to those already proven in evidence.

…

116. If the distinction between civil and criminal cases is valid, it must be because in a criminal case the accused cannot be compelled to give evidence. It must be because, in some way, directions about silence are inconsistent with "the right to silence" being an incident of the rule that the accused in a criminal trial cannot be compelled to testify. Indeed, this appears to be the true basis of the judgment of Gaudron ACJ, Gummow, Kirby and Hayne JJ in RPS. Their Honours said:

"The trial judge's directions to the jury proceeded from the premise that it may be 'reasonable ... to expect some denial or contradiction to be forthcoming from the [appellant] if such a denial or contradiction is available'. But for the reasons given earlier, that premise is wrong. It is contrary to fundamental features of a criminal trial: features to which the trial judge alluded earlier in his charge."

117. But as I will seek to show neither historically nor now has the law recognised a "right to silence" that prevents a trial judge from commenting in the manner that occurred in the present cases. Nor does the immunity from compulsion to give evidence prevent such comments. In addition, once it is conceded that the silence of the accused may be taken into account in some cases, as the majority in RPS, and in the present cases, concede, the point of principle is decided in favour of Weissensteiner. Once the concession is made that "the right to silence" and the immunity from compulsion do not prevent the judge from making some adverse comments, the debate must be about details. And it is not easy to see how or why the comment should be as limited as RPS suggests. If comment is justified when the accused probably knows of additional facts that could deny inferences that can be drawn from the evidence, why is comment denied when the accused fails to rebut or explain evidence about matters that the accused knows are true or false? The reasoning that justifies comment in one case seems just as applicable in those cases where RPS denies the right of comment.

…

174. In my opinion, the comments of the trial judges in the present cases were in accordance with the law, as it has long been laid down in England and Australia, and with what the legislature of New South Wales intended. If anything, the terms of s 20(2) have strengthened the power of the trial judge to comment on the failure of the accused to give evidence. In so far as RPS suggests that the comments of the trial judges in the present case were erroneous, it should not be followed. Trial judges should regard Weissensteiner as correctly stating the law.

Callinan J (would allow the appeal)

191. [RPS] should be regarded as a correct statement of the law applicable to this case. The trial judge's comments fell on the wrong side of the line which a trial judge must draw. It seems to me that the remarks made in his summing up that I have quoted were, at least a subtle allusion to the possibility, indeed even the likelihood, that the appellant did not give evidence because he believed or knew that he was guilty. That was so because his Honour's directions conveyed that the appellant's election not to give evidence could be taken into account in judging the value of, or the weight of the evidence for the prosecution; and doubts entertained about the evidence of witnesses for the prosecution might be more readily discounted because the accused had not given evidence. The trial judge also referred to the failure of the accused to give evidence as a circumstance entitling the jury to accept readily the evidence of the prosecution. Although his Honour did say that the appellant's decision not to give evidence could not be used to fill any gaps in the prosecution case, he added, erroneously, that it could be used in assessing the value of the evidence given by the prosecution witnesses. And finally, also erroneously, his Honour's remarks included that the absence of evidence from the accused meant that the version of events put in cross-examination of witnesses for the Crown was not supported by evidence.

Mason P

1. The appellant was tried in the District Court before Judge Woods QC and a jury. He was convicted on two counts, namely break, enter and steal in circumstances of aggravation and indecent assault. On the first count he was sentenced to 12 years imprisonment with a non-parole period of 8 years commencing from 14 February 1999 and expiring on 12 February 2007. On the second count the sentence was a term of 3 years commencing from 14 February 1999 and expiring on 13 February 2002.

2. In reality the only issue was one of identification.

…

14. Pausing here, the evidence to this stage indicated that the appellant had declined to assist the police by answering questions on the night of his arrest; and that he was obviously affected by alcohol and (on his evidence) drugs at the time.

15. Early in the cross-examination of the appellant it was established that the police visit to the appellant in gaol when arrangements were made to take his blood for testing occurred on 20 August 1998. There was a dispute as to whether it was on this occasion that the appellant first mentioned Shane Williams (cf Tr p188) or on a later occasion in December 1998 (ibid). In the course of the Crown Prosecutor probing this issue the following questions and answers were given (Tr p191, emphasis added):

Q. At any rate, it's your evidence isn't it, that for (sic) the first time you told the police about Shane Williams was when the police came to you at Silverwater Gaol?

A. I'm not quite sure about that.

Q. You didn't say anything on the night you were arrested?

A. No I didn't.

Q. And as I understand your evidence to this point of time, the first time you said anything about Shane Williams was a gaol visit which was on 20 August '98?

HIS HONOUR: Members of the jury, I'll give you this direction. Any person who is taken to police custody or questioned by police, is entitled as a matter of law to decline to answer questions and to see a solicitor, and you must not draw any inference adverse to the accused because you did not on the night in question answer police questions.

16. This is the first of two passages particularly relied upon in this appeal.

…

19. The appellant submits that the Crown Prosecutor was cross-examining the appellant about the fact that he did not inform the police about Shane Williams at the time he was arrested. It is further submitted that the purpose and/or effect of the questions was to invite the jury to draw an adverse inference against the appellant because of his failure to inform the police about Williams at or very shortly after the time he was arrested. I would accept these submissions, at least as to the effect of the line of questioning. It is unnecessary to probe the prosecutor's purpose.

…

30. The appellant further submits that the two warnings to which I have referred were insufficient in their context, because they did not really address the sting of the prohibited inference that had been raised before the jury. That is because the directions did not instruct the jury that no adverse inference should be drawn because the appellant failed to refer to Shane Williams or say that Williams had put on the clothes. In my view, the first direction would have conveyed this because of the context in which it was given. But the second direction (given during the summing up) did lack some of its neutralising force for failure to link it to the sting of the Crown's suggested inference, that is the suggestion that the Williams story was an invention because it had not been advanced on the night of the arrest.

31. In the upshot I am persuaded that the trial regrettably miscarried when the totality of the material is taken into account. The (rather fantastic) defence raised by the appellant depended entirely upon the jury's assessment of his credibility - subject, of course, to the proper application of the Crown's burden of proof. The cloud erroneously placed above the appellant's testimonial head by the effective invitation to disbelieve the Shane Williams story because inter alia it was a late invention when it should have been adverted to on the night of the arrest cannot be dispelled by invocation of r4 or the proviso.

Dowd J

33. I have read the judgment of Mason P in draft form. I agree with the reasons and the orders proposed by Mason P.

Greg James J

34. Having regard to the matters referred to by Mason, P. in paragraphs 21 to 25 of his draft judgment, which I have had the advantage of seeing, I, too, do not consider it necessary in this case to examine s.89 of the Evidence Act or the full ambit of the right to silence. The combination of the effect of the judicial warning and the Crown Prosecutor's remarks infringed the principle referred to in Petty v. The Queen [1991] HCA 34; (1991) 173 CLR 95, which it was accepted before us applied. For that reason the trial miscarried.

35. I agree that notwithstanding the almost absurd defence, for the reasons given by Mason, P., the appeal should be upheld and a new trial ordered.

Campbell JA

2. The Appellant has been convicted in the District Court of New South Wales on a charge of importing a commercial quantity of a border-controlled drug, namely cocaine. There was no dispute at the trial that the Appellant had arrived at Sydney Airport on 19 October 2006 on a flight from Argentina, and that a quantity of cocaine, estimated to be 2.369 kgs, was found concealed in his luggage. The issue at the trial concerned whether he had knowledge of the presence of the cocaine or was reckless as to its presence.

3. The grounds of appeal relate to the adequacy of the trial judge’s directions to the jury.

4. One ground of appeal alleges that a miscarriage of justice arose from two omissions on the part of the trial judge, namely: (a) to give adequate directions on the right of silence, and (b) to give adequate directions on the inference that could be drawn from the Appellant’s exercise of his right of silence during official questioning (section 89 Evidence Act 1995 (Cth)).

5. The second ground of appeal is that a miscarriage of justice arose from a positive error of the trial judge, namely directing the jury that they could draw an adverse inference from the Appellant’s failure to raise a defence during his questioning by Customs and Federal Police.

…

39. In the course of summing up the judge said:

“When it became apparent that the customs officer or officers had detected what they believed to be drugs, at no stage did he protest that he was carrying the brown bag for somebody else, or that his computer bag had been packed by another who had just given it to him. Nowhere in his discussions with the customs officers, nor with Agent Santamaria did he ever raise these matters.

In the crown case as a matter of sheer commonsense you would expect some protest, some explanation, some effort to distance himself by telling the customs agents or the federal agents what he claims to be the truth, that is[,] how he came to be in the possession of those two bags. As to why he would not have raised that matter then and there, on the crown case is simply incredible.”

40. It is this portion of the summing up that the Appellant submits is a misdirection.

41. Later in the summing up the judge said:

“If you look at the DVD, Mr Hanley says that will demonstrate the accused showing no concern with the investigation of his bags.

...

As to what he said or did not say when being questioned by the customs agents, and his baggage examined, Mr Hanley put to you that you really would not expect chapter and verse from a man who had just spent many hours travelling from South America.”

That last remark relates to the Appellant having spent over 29 hours travelling from Panama City to Sydney.

…

48. The authority that their Honours cite for the first sentence just quoted is the speech of Lord Mustill in R v Director of Serious Fraud Office; Ex parte Smith [1993] AC 1 at 30-1. There, Lord Mustill stated that the “right of silence” covered at least six different types of immunity:

“(1)        A general immunity, possessed by all persons and bodies, from being compelled on pain of punishment to answer questions posed by other persons or bodies.

(2)         A general immunity, possessed by all persons and bodies, from being compelled on pain of punishment to answer questions the answers to which may incriminate them.

(3)         A specific immunity, possessed by all persons under suspicion of criminal responsibility whilst being interviewed by police officers or others in similar positions of authority, from being compelled on pain of punishment to answer questions of any kind.

(4)         A specific immunity, possessed by accused persons undergoing trial, from being compelled to give evidence, and from being compelled to answer questions put to them in the dock.

(5)         A specific immunity, possessed by persons who have been charged with a criminal offence, from having questions material to the offence addressed to them by police officers or persons in a similar position of authority.

(6)         A specific immunity (at least in certain circumstances, which it is unnecessary to explore), possessed by accused persons undergoing trial, from having adverse comment made on any failure (a) to answer questions before the trial, or (b) to give evidence at the trial.”

…

52. The account of the “right of silence” given by the High Court majority in Petty extends even further than the sixth category identified by Lord Mustill in R v Director of Serious Fraud Office. The prohibition on suggesting “that previous silence about a defence raised at the trial provides a basis for inferring that the defence is a new invention or is rendered suspect or unacceptable” applies even if a person in authority has not asked an accused person a question in response to which one would expect, if the account the accused gave at his trial were true, that he would have given that account. Indeed, the prohibition applies even if a person in authority has not asked the accused person any questions at all. The prohibition applies to any suggestion that a defence might be rejected because the accused failed to say anything before the trial about the substance of the defence, whatever might have been the circumstances in which that failure to say anything might have occurred. Like Lord Mustill’s sixth type of right of silence, it does not need to be specifically claimed or exercised by an accused person, but is rather an entitlement about the manner in which his or her trial is conducted. Even a very talkative person can be considered “silent” within the meaning of this principle, if such conversation as he or she has before the trial does not include an account of the substance of the story that the accused tells in evidence at the trial, or has his or her counsel raise through cross-examination of other witnesses at the trial.

…

58. On both formulations, at the time evidence is given that an accused has exercised a right of silence, a judge should give a direction to the jury that they are not to draw an adverse inference from the accused having done so. On both formulations, there is no rule to the effect that that warning must be repeated in the summing up. It may well often be desirable, and prudent to do so, but whether failure to do so involves appellable error will depend on the circumstances of the individual case.