Jones v Dunkel

Dixon CJ (would dismiss the plaintiff’s appeal, and did not address the issue re the calling of the witness)

1. In my opinion the evidence adduced for the plaintiff at the trial to find the facts necessary to support the cause of action upon which she sued. No evidence was called on the part of the defendants but, as I think, they were entitled to a verdict by direction.

2. The cause of action was negligence causing the death of the plaintiff's husband and the action was brought under the Compensation to Relatives Act 1897-1946 (N.S.W.). The deceased was killed on 15th January 1953 on the Hume Highway at a place called Little Hanging Rock about twelve miles south of Berrima.

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Twenty paces to the rear of the truck and facing in the same direction was a diesel truck. It stood on the same side of the road more or less on the earthen shoulder but not at an angle with the direction of the road. The diesel truck had been driven by the defendant Hegedus, an employee of the defendant Dunkel. Hegedus was not killed but he was hurt. He had been travelling in the opposite direction.

…

The defendants' counsel at the conclusion of the plaintiff's case sought a directed verdict and for the purpose, in accordance with the prevailing practice in New South Wales, announced that he would not call evidence. The learned judge refused his application but the jury found a verdict for the defendants. An application to the Full Court of the Supreme Court for a new trial failed. In the view I take the grounds upon which the plaintiff sought a new trial are immaterial. I cannot see how a jury might reasonably infer that her husband was killed by the negligence of Hegedus. The accident is simply left unexplained.

3. In the present case the circumstances appearing in evidence do not in my opinion support any inference that may reasonably be drawn that Hegedus was guilty of negligence and thereby caused the deceased's death. One can feel little doubt that that is why the jury were not in fact reasonably satisfied of the plaintiff's case and found a verdict for the defendants.

Kitto J (would allow the appeal)

1. Undoubtedly the evidence bearing upon the cause of the collision was meagre in the extreme, but in my opinion there was material from which the jury might legitimately have concluded that the death of the plaintiff's husband resulted from negligent conduct on the part of Hegedus. The conclusion, it is true, could not have been reached save by inference from the facts concerning the road and the two vehicles, which were deposed to by the witnesses who came upon the scene shortly after the collision; and I agree that no ground for an inference is to be found in general considerations as to the likelihood of negligent conduct occurring in the conditions which existed at the time and place of the collision.

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6. Whether that inference ought to be drawn was, of course, a question for the jury. But they should not have been sent away to consider that question without proper guidance as to the relevance of the defendants' failure to put Hegedus into the witness-box. On that question a juryman actually asked the trial judge to supplement his summing-up, and counsel for the plaintiff submitted that if there was evidence to go to the jury they were entitled to take into consideration (meaning, obviously, on the question whether they should infer negligence) that "there was one person who could have told them the facts and they have no answer from that person". In my opinion, the direction which the judge proceeded to give was insufficient, and, because of its incompleteness, was incorrect. His Honour told the jury that the fact that Hegedus had not gone into the box left them in this position, that they could accept the facts given by the plaintiff as proved, and that the question for them then was whether they thought that from the proved facts an inference of negligence ought to be drawn. It was right enough to point out, in effect, that the evidence given might be the more readily accepted because it had been left uncontradicted, and that the omission to call Hegedus as a witness could not properly be treated as supplying any gap which the evidence adduced for the plaintiff left untouched. But what should have been added, and not being added was in the circumstances as good as denied, was that any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn when a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence. The jury should at least have been told that it would be proper for them to conclude that if Hegedus had gone into the witness-box his evidence would not have assisted the defendants by throwing doubt on the correctness of the inference which, as I have explained, I consider was open on the plaintiff's evidence. In my opinion what his Honour said on the point amounted to a misdirection.

Taylor J (would dismiss the appeal, and does not address the issue re the calling of the witness)

1. I agree with the Chief Justice in thinking that there was no evidence before the jury sufficient to support the cause of action sued upon…

Menzies J (would allow the appeal)

6. In the course of his summing-up the trial judge said two things upon the use the jury might make of Hegedus's failure to give evidence. The first was that counsel for the defendants upon whom the responsibility for the conduct of the defendants' case rested was within his rights in not calling Hegedus, and secondly, to use his own language, "the fact that Mr. Hegedus has not been called does not absolve the plaintiff from adducing some evidence of the facts. The onus is upon her to prove the facts but very slight evidence pointing to their existence may be treated as sufficient to justify you in holding that they do exist."

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9. In my opinion a proper direction in the circumstances should have made three things clear: (i) that the absence of the defendant Hegedus as a witness cannot be used to make up any deficiency of evidence; (ii) that evidence which might have been contradicted by the defendant can be accepted the more readily if the defendant fails to give evidence; (iii) 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.

Windeyer J (would allow the appeal)

10. This was apposite. At the end of the summing-up, and as the jury were about to retire, a juryman said to his Honour: "Rightly or wrongly I have it in my mind that the defendant could have come here to-day and given evidence. Am I entitled to regard that in my mind as a weakness in the case of the defendants, that he did not?"

11. The proper answer to this question, if an answer were to be given in one word, was "yes". The matter is discussed in Wigmore on Evidence under the heading "Conduct as Evidencing a Weak Cause"; and those were the juryman's very words. What his Honour actually said was: "Counsel for the defendant has the responsibility for the conduct of the defence. Counsel decided not to call evidence, and having directed you already with regard to that matter I do not propose to say anything more to you." Whatever the learned judge had said earlier, and whether or not it was sufficient, clearly the juryman felt the need of further guidance. Lawyers are accustomed to the concept of a civil action as a matter to be decided on the evidence produced by the parties, one of them bearing the burden of proof. They do not always appreciate that laymen may well feel, not only that such proceedings are not well designed to get at the real truth, but that they ought to be. Jurymen seeking to get at the truth might naturally have qualms when the only man who was able to tell them what really happened did not vouchsafe to do so. However, the matter did not stop with his Honour's statement. A discussion ensued, in which counsel for both parties addressed his Honour, and in which the judgment of Jordan C.J. in De Gioia v. Darling Island Stevedoring & Lighterage Co. Ltd. (1941) 42 SR (NSW) 1; 59 WN 22 was referred to. Mr. Bowring, the plaintiff's counsel, put the view for which he was contending succinctly: "If the judge says there is no evidence to go to the jury that is an end of the matter; but when the matter does go to the jury, then I do submit that the jury are entitled to take into consideration that . . . there was one person who could have told them the facts and they have no answer from that person"

Gleeson CJ

At 745

Following a trial before Nield DCJ and a jury in the District Court the appellant was convicted of ten offences of having homosexual intercourse with a male person under the age of eighteen years. He was also convicted of one offence of having sexual intercourse with a person without the consent of the person, knowing that there was no consent. The appellant was sentenced to terms of penal servitude which, in their combined effect, involved a minimum term of seven years and an additional term of three years. He appeals against his convictions and seeks leave to appeal against the sentences.

At 746

Mrs B gave evidence of four conversations she had with the appellant over the succeeding days. Only her evidence as to the fourth of those conversations was challenged in cross-examination. She said that in the first conversation the appellant told her that he had something he wanted to explain to her. In the second conversation, the appellant asked her not to tell their parents. In the third conversation, the appellant asked Mrs B whether J had said anything to her, to which she replied that J had “told her everything”. The appellant then said that he wanted to talk to her and would visit her.

The evidence of Mrs B as to the fourth conversation, which was challenged in cross-examination, was that she asked the appellant directly whether he had had sex with J, and that he admitted that he had done so about ten times.

At 747

There is one important aspect of the case against the appellant which, although not mentioned in the argument of counsel on this appeal, emerges from a reading of the record of the trial.

It was noted above that the appellant was convicted of eleven offences. He had in fact been charged with twelve offences, but was acquitted of one of the counts alleging homosexual intercourse. That is not presently material. What is important is the difference between ten of the charges in respect of which he was convicted and the other charge in respect of which he was also convicted. In the case of the ten charges of homosexual intercourse with a male person under the age of eighteen years, the presence or absence of consent on the part of the complainant was irrelevant. Whilst the question of consent was irrelevant to the ten charges just mentioned, it was of central importance to the final count in the indictment, which alleged non-consensual intercourse.

At 748

If one were to search for a possible explanation of the appellant's failure to give evidence there is, to my mind, one distinct possibility. It is that the appellant, if he had sought to defend himself against the final charge by asserting that the complainant consented to sexual relations, or that he did not know the complainant was not consenting, would have been forced to make admissions in relation to the other charges. It is at least a possibility that the appellant would have wished to contend that the intercourse of 4 January 1995 was, or was believed to be, consensual, but evidence he might have given in support of that contention, concerning the nature of his relationship with the complainant, would have involved him in making admissions of guilt in relation to the other charges. That possibility, it might be added, is consistent with some of the things the appellant allegedly said to Mrs B by way of admission. What he said to her appeared to amount to admissions of offences of the kind involved in all the charges except the last.

At 749 and 750

Neither at the trial, nor on this appeal, was exception taken to any part of the above directions other than the paragraph beginning with the words:

“If you are satisfied that the accused could have given evidence from his personal knowledge of the events about which the complainant and (Mrs B) gave evidence ….”

Trial counsel objected to that portion of the directions, which he described in argument as the Jones v Dunkel direction: cf Jones v Dunkel (1959) 101 CLR 298. Counsel asked the judge to withdraw the direction, but the judge refused.

Two complaints are made about the so-called Jones v Dunkel direction on this appeal. The first is that it contravened s 20 of the Evidence Act 1995. The second is that, quite apart from the provisions of s 20, in the circumstances of the present case the direction was both factually erroneous and legally inappropriate. The second of those complaints has been made good.

At 750 to 751

First, the failure of an accused person to give evidence cannot be treated as an admission, by conduct, of guilt. The reason is that, if it were otherwise, the legal right to silence would be negated: Weissensteiner (at 229). As Nield DCJ instructed the jury in the present case, an accused's silence may not be thought to be an admission of guilt. Or, as the trial judge in Weissensteiner directed the jury, an accused person does not have to prove anything, and is under no obligation to give evidence, and a jury cannot infer guilt simply from the accused's failure to do so.

Where there is no statutory prohibition on comment, then, if anything at all is to be said about a failure to give evidence, this first principle should be explained to a jury. As a matter of ordinary experience, many lay people would readily treat an accused's silence as an admission of guilt unless warned against doing so.

Secondly, it is commonly appropriate to instruct a jury that failure to contradict or explain incriminating evidence, in circumstances where it would be reasonable to expect it to be in the power of an accused to do so, may make it easier to accept, or draw inferences from, evidence relied upon by the Crown.

At 751

Thirdly, it is ordinarily necessary to warn a jury that there may be reasons, unknown to them, why an accused person, even if otherwise in a position to contradict or explain evidence, remains silent.

At 752 and 753

However, strong warnings have been given of the risks involved in applying Jones v Dunkel in criminal trials. In R v Buckland [1977] 2 NSWLR 452 at 459, Street CJ was considering the matter against the background of the prohibition, by s 407 of the Crimes Act, of any comment on the failure of an accused to give evidence. In discussing a comment about the failure of the defence to call a particular witness, he said (at 459):

“… In criminal proceedings, however, the making of a comment or the indication of the available inference will be attended by a marked degree of caution, inasmuch as in many cases the absence of a witness either for the Crown or the accused might well be explicable upon grounds not readily capable of proof. If it is suspected that there may be some valid reason for a witness not being called, then, in a criminal trial in particular, a careful appraisal is requisite before commenting on the absence of that witness either in address or in the summing-up.”

The present case provides a good example of circumstances which demonstrate the need for caution. The appellant was charged with multiple offences. It was quite possible that he had an answer to one of the charges but not to the others. It was also possible that his answer to one of the charges would have involved him in making admissions in relation to others. This was hardly a consideration which trial counsel for the accused would have wished to draw to the attention of the jury. It was, however, a consideration which should not have been overlooked by the trial judge. The explanation for the failure of the appellant to give evidence might have been that he was faced with a dilemma to which he responded by saying nothing.

As a practical matter, it will often be prudent for a trial judge, before giving directions which include a Jones v Dunkel direction to raise with counsel, in the absence of the jury, the question whether such a direction should be given. That would give counsel an opportunity to suggest to the judge possible reasons for the accused's silence (or the failure to call a witness) which may not have occurred to the judge, and to debate the fairness of the direction. In the present case, the trial judge gave the direction, counsel for the appellant later, in the absence of the jury, complained, and the Crown prosecutor expressed some concern about the matter. The judge was then faced with a choice between withdrawing or modifying the direction, or leaving it stand. He took the latter course.

At 753

In other parts of the summing-up the jury were told, appropriately, that they had to consider each charge against the appellant separately. Indeed, as has been mentioned, they acquitted the appellant of one of the first group of charges. However, in the context of the directions relating to the inferences available from the appellant's silence, there was no attempt to discriminate between the different charges, and no reference to the possibility that the silence of the accused might have a different significance in relation to different charges. Counsel for the accused, understandably, did not invite any such reference. Although the jury had earlier been expressly warned not to speculate as to why the accused elected not to give evidence, they were then told that they were entitled to decide from the accused's election not to give evidence that nothing that he could say would have assisted him in the trial. In the circumstances of the present case that was not an available inference. At the very least, the drawing of such an inference would have required consideration of issues and possibilities that were not brought to the attention of the jury. This constituted a material misdirection.

Grove J

At 754

I agree with Gleeson CJ.

Sperling J

At 754

I have had the benefit of reading in draft Gleeson CJ's reasons for judgment in this appeal. I agree with the orders he proposes and with his reasons for those orders.

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Where evidence is led which is capable of establishing guilt and where the accused can reasonably be supposed to know the true facts and where there is no apparent explanation for not answering the evidence that has been led, it would not be unreasonable — as an exercise in ordinary processes of reasoning — to find guilt simply because of the accused's silence. That, however, would be inconsistent with the legal principle concerning onus of proof, and with more emphatic expressions of that principle to be found in the criminal law, such as that the accused is innocent until proven guilty and that the accused has a right to silence. Ordinary reasoning yields to legal principle in this instance.

At 755

That succinctly encapsulates the point. The jury must not pass over an evaluation of the evidence called in the proceedings and find the accused guilty merely on the basis of the accused's election not to give evidence, no matter how eloquent the accused's silence may be.

(To say that the accused's election not to give evidence is not to be used as an admission of guilt is a way of stating the above principle. But I doubt that such a formulation would be intelligible to a jury. To a lawyer, it means that the accused's silence is not to be used as independent evidence of guilt. I do not know what a jury would make of it.)

I have said how the election not to give evidence may not be used. How may it be used?

Following the passage I have quoted from the summing-up in Weissensteiner, the trial judge in that case went on to state what use could be made of the failure to give evidence. The High Court approved those further directions. They were, however, tailored to the circumstances of the case. They provide a good precedent for a case based on circumstantial evidence. They are not of general application.

Speaking more generally, the rule is that the accused's election not to give evidence can only be used to make it easier to accept the evidence called by the Crown or to draw an inference from the evidence.

This is an uneasy compromise. An election not to give evidence, as a consideration standing alone, may not be used to establish guilt. However, it may be used to make evidence or an inference from the evidence more acceptable.

At 756

If the election not to give evidence comes to play an active part in the jury's reasoning, that will be because of an inference drawn by the jury from the accused's silence in the face of damaging evidence. The natural inference from a failure to give evidence in such circumstances is that giving evidence would not have been to the accused's advantage. The problem is that there may be reasons for electing not to give evidence consistent with knowledge on the part of the accused that the Crown case is factually wrong. It is necessary, therefore, that a trial judge take particular care not to suggest that the only inference arising for consideration is that the accused knows the facts to be as the Crown alleges. To suggest as a possible inference that to have given evidence would not have assisted the accused may have that effect, unless the jury is also told emphatically that they should consider the possibility that there may be some other explanation which has not been affirmatively proved by evidence.

Inevitably, that may involve a degree of speculation. I think it is wrong to tell a jury that they may not speculate in this regard. The warning about speculation — if such a warning is to be given at all on this topic — should be confined to a warning against finding an adverse reason for the accused not giving evidence without a sound basis for that conclusion.

Depending on the circumstances of the case, an example of such other possible reasons may help: such as that it might have been thought — as was suggested as a possibility in the present case — that the risk of an inadvertently incorrect answer, given under the pressure of cross-examination, outweighed the risk of the jury finding the accused guilty on the evidence led in the proceedings. Some other possibility might have been mentioned in final address which could be used as an illustration. Or some other possibility might emerge from discussion with counsel before the summing-up, as Gleeson CJ has mentioned.

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.

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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.

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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."

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8. Two other features of the trial should be mentioned. First, at the close of the prosecution's case at trial, counsel for the appellant announced his intention to call a social worker. The trial judge said, in the presence of the jury, "You must call your client before you can call any other witness. ... That's what the law says. It is customary, and the accused must be called first." The jury were then asked to leave the court and counsel for the appellant informed the judge (in the absence of the jury) that he did not propose to call the appellant to give evidence.

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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.

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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)).

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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.

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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)

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

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

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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.

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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).

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111. There is no doubt that a direction in accordance with Jones v Dunkel may be given in respect of a failure by the Crown to call a material witness without acceptable and admissible explanation. The need for such a direction will usually be heightened by the Crown's responsibility to present its case in a way which is fair to an accused. However, such a direction may not be given in relation to an accused person or an accused person's witnesses who, if the matter were a civil trial, might be expected to be called. A direction with respect to a defence case, based upon Jones v Dunkel would not only infringe s 20(2) but also would erode the basic principle of the presumption of innocence. The principles stated in Jones v Dunkel by their very nature presuppose that there is a need, or an occasion, for evidence to be called by a party, or an expectation that evidence could and should be called by a party. An accused person in criminal proceedings labours under no such need, occasion or expectation.

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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").

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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.

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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.

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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".

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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.

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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.

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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.

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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.

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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.

Gaudron and Hayne JJ (would allow the appeal on the Jones v Dunkel point)

1. 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"?

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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. 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.

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17. As was held in R v Apostilides, 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.

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". 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.

McHugh J (would dismiss the appeal)

24. Until RPS v The Queen, 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". 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. In Weissensteiner v The Queen, 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. Subsequently in Azzopardi v The Queen, 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". 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".

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.

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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.

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36. Contrary to the majority view in this case, it does not undermine the requirement of proof beyond reasonable doubt to hold that the jury might think that the appellant could be expected to call Ms Tinkler. Nor would that holding undermine the adversarial system of criminal justice, the presumption of innocence or the privilege against self-incrimination.

37. After the judge gave the-failure-to-call-a-witness direction, the Crown still had to prove its case beyond reasonable doubt. In the course of doing so, it had to negative beyond reasonable doubt the evidentiary claim that the appellant was with Ms Tinkler at the time of the offences. Once the defence raised the meeting and the purported session with Ms Tinkler as an alibi, the appellant could not be found guilty of the offence unless the Crown proved beyond reasonable doubt that the meeting and the session did not occur. The existence of the alibi was so opposed to the prosecution case that it had to be negatived beyond reasonable doubt. Thus, neither the requirement of proof beyond reasonable doubt nor the adversary system of criminal justice was undermined by the direction of the judge.

38. Nor did giving the direction undermine the presumption of innocence or the privilege against self-incrimination. The presumption of innocence did not change. Until the jury returned its verdict, the appellant continued to have the benefit of that presumption.

39. Nor did the judge's direction breach the privilege against self-incrimination. The appellant was not compelled to give evidence or to make a statement concerning the matters raised by Ms Hamilton in her evidence. Given the decisions in RPS and Azzopardi, it may be that, if he had made no mention of the matter in his statement to the jury, the trial judge could not have commented on his failure to do so. However, the appellant did not remain silent. He asserted that he was with Ms Tinkler at the relevant time. Accused persons who make statements before or during a trial may often find that their subsequent silence leaves them open to adverse comments that could not be made if they had remained silent.

Kirby J (found that a Jones v Dunkel direction should not have been given, but held that the appeal should nonetheless be dismissed)

52. The Jones v Dunkel point: In relation to this issue I agree with the joint reasons and the reasons of Callinan J. The instruction given by the trial judge had the potential to mislead the jury into believing that the appellant should have called the missing witnesses. It thereby misstated the accusatorial character of the trial. In the state of the evidence in this case, the misdirection could not be regarded as immaterial. That conclusion alone requires that the appeal be allowed and the conviction quashed.

53. The abolition in New South Wales of the facility for the accused to make an unsworn statement to the jury has altered somewhat the balance of the accusatorial criminal trial. In a sense, it has returned the criminal trial, in cases where the accused does not give evidence, to a position similar to that which pertained when the accused was incompetent and not compellable to give evidence on his own behalf. The trial, in such cases, is then starkly presented in its full accusatorial (ie non-adversarial) character. The prosecution is put to the proof. It is important in such circumstances that the reasoning appropriate to an adversarial civil trial should not undermine the accusatorial elements of a criminal trial. Otherwise the cards will be unduly stacked against the accused as the mind of the jury (or judge) is diverted to questions about a failure by the accused to give, or call, particular evidence. Nor do I consider that s 20 of the Evidence Act 1995 (NSW) compels, or suggests, a different conclusion. That is a limited provision on a particular subject and nothing in the background materials on the section suggests a contrary assessment or larger implications.

Callinan J (would allow the appeal)

121. The principles stated in Jones v Dunkel presuppose that there is occasion for the calling of evidence by an accused. Such a presupposition is incompatible with the presumption of innocence, and the right of the accused neither to give, nor to call evidence at trial. This is not an exceptional case of the kind referred to by their Honours in RPS. There is no feature of it that takes it outside the general rule.

122. The first ground of appeal should therefore be upheld.

123. In almost all cases a trial judge should say nothing about an absent material witness whom an accused might supposedly have called. At most, a trial judge might in some circumstances have occasion to say that the jury should act on the evidence, and only the evidence that has been called. As, save for exceptional cases, the Crown Prosecutor may not address or comment on the non-attendance of witnesses for the defence, the reason, and therefore the occasion, for a trial judge to comment, should also be very rare. I need mention in relation to this ground one other matter only, and that is the appellant's counsel's acquiescence in the trial judge's observations about the people who did not give evidence for the appellant. The trial took place before the decision of this Court in RPS. The appellant in any event takes no point about that acquiescence. It does not therefore stand as an obstacle to the upholding of ground one. Because the upholding of the first does not entitle the appellant to an acquittal it is necessary to consider the appellant's other arguments.

Gleeson CJ, Gummow, Kirby and Kiefel JJ (would allow the appeal)

1. Dlshad Hamad Mahmood (the appellant) was found guilty by a jury of the wilful murder of his wife following a trial in the Supreme Court of Western Australia. The murder took place on Sunday 4 July 2004 at premises at Mt Lawley where the appellant and his wife conducted a restaurant business called the Kebabistan Restaurant. In his evidence the appellant said that, after a visit from a friend he began cleaning the premises whilst his wife went to the toilet. When she did not return he went to find her. She was lying in a passageway bleeding. Her throat had been cut. He said that he picked her up but she was not breathing. He went outside to see if the person responsible was still there, but found no one. He returned to his wife and called the police, the ambulance and his son. During this time he said that he was very distressed.

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20. The second ground of appeal may be dealt with shortly. The prosecution's case, in opening, relied upon evidence of the presence of the appellant's wife's blood in a number of places on the appellant's body and clothing. The position of the blood stains was said to be inconsistent with his account of how he had come in contact with his wife's body and consistent with his having killed his wife. Although reference was made, in a scientific report, to the presence of the blood of his wife in his trouser pocket, the witnesses called by the prosecution were asked no questions about it. It is not immediately apparent what the prosecution witnesses could have said about the presence of the appellant's wife's blood in his trouser pocket. The respondent however concedes that some evidence might have been adduced about the blood stains which might have shed some light upon their source and whether they could have come from an implement such as a knife, on the assumption that this was the nature of the murder weapon.

21. The first reference to these blood stains came in a question put to the appellant, in cross-examination and without objection, that he had put the knife in his pocket before going outside to dispose of it. It may be observed that more than one inquiry was involved in what was put to the appellant for answer. The appellant's counsel took the matter up in re-examination. He said to the appellant: "They're saying that you had a knife in your pocket and ran out of the restaurant and threw it away?" The appellant denied that it was true and denied having anything to do with the killing of his wife.

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24. In her summing up to the jury the trial judge referred to the evidence relating to presence and position of blood. Having dealt with another aspect of it and the need to exclude "as a reasonable hypothesis" that something else explained the presence of blood on a door, her Honour went on:

"... The second result the state relies upon is the blood found in the accused's pocket. The state says this is consistent with the accused putting the murder weapon in that pocket. Again, the significance of this evidence is a matter for you but before you could use that evidence against the accused you would have to exclude as a reasonable hypothesis other means by which the blood could have got in the pocket; for example, if the accused had put his bloodstained hand in the pocket to get something out or to search for something or even just out of habit."

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27. It was neither necessary nor appropriate for the trial judge to direct the jury that an inference adverse to the case for the prosecution could be drawn because the presence of blood in the appellant's trouser pocket had not been the subject of evidence by the prosecution's witnesses. In the joint reasons in RPS v The Queen. it was pointed out that where a witness, who might have been expected to be called and to give evidence on a matter, is not called by the prosecution, the question is not whether the jury may properly reach conclusions about issues of fact but whether, in the circumstances, they should entertain a reasonable doubt about the guilt of the accused. Similar views were expressed by Gaudron and Hayne JJ and by Callinan J in Dyers v The Queen.

28. Contrary to his contention, the appellant had the opportunity to explain the presence of the blood in his pocket. He did not offer an explanation. There was no evidence before the jury about the matter. They were not in a position to conclude that the blood stains were made by a knife, placed in the pocket by the appellant. There were other possibilities, consistent with innocence. These were addressed by her Honour the trial judge in her direction to the jury. The use of the word "hypothesis" may not always be advisable, and plainer terms preferable. But what her Honour said, particularly by way of example, was sufficiently clear to convey to the jury that they could not draw the inference suggested by the prosecution, given the standard of proof required.

Hayne J (would allow the appeal)

33. I agree with the other members of the Court that, for the reasons their Honours give, the appeal should be allowed and the matter remitted to the Court of Appeal of the Supreme Court of Western Australia.

McClellan CJ at CL

1. I agree with Howie J.

Grove J

2. I agree with Howie J.

Howie J

3. After trial by jury the appellant was convicted of a charge that between 1 January and 27 February 2006 she solicited the murder of [BB]. This is an offence contrary to s 26 of the Crimes Act 1900. It carries a maximum penalty of imprisonment for 25 years and there is a prescribed standard non-parole period of 10 years. On 25 September 2008 Woods DCJ (the Judge) sentenced the appellant to a term of imprisonment consisting of a non-parole period of 6 years and a balance of term of 4 years. The appellant has appealed against her conviction and the Crown has appealed against the sentence imposed.

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5. There were originally three grounds of appeal relied upon and in respect of which written submissions were filed. A fourth ground of appeal was added shortly before the hearing. One of the original grounds of appeal was abandoned at the hearing. Therefore the following are the grounds upon which the appeal was argued:

1. Evidence of telephone intercepts (exhibit “F” at trial) was wrongly admitted.
2. The trial judge erred in law in failing to give the jury a Jones v Dunkel direction in relation to the Crown’s failure to call a material witness (Tammy Gumb) who could give relevant evidence in the case.
3. The verdict is unreasonable and cannot be supported, having regard to the evidence.

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49. Shortly before counsel’s final addresses began and after discussions between the Judge and counsel as to matters to be addressed in the summing up, the following took place:

Defence counsel: This is one of those cases where perhaps some particular caution needs to be expressed in directing the jury about the burden of proof. I’ll have a bit to say about that it in my closing address early on and Tammy Gumb hasn’t been called so a little bit of Jones v Dunkel there I think.

His Honour: She’s the wife of?

DEFENCE COUNSEL: De-facto wife of Williams. Williams was cross-examined about her presence on the Monday morning when he says that Tammy Gumb was present in the house. I went back to the committal transcript where he was asked can anyone verify that [the appellant] visited and he gave her name.

CROWN PROSECUTOR: The only thing your Honour is this, Jones v Dunkel doesn’t actually apply in criminal cases any more.

HIS HONOUR: It doesn’t strictly necessarily arise.

CROWN PROSECUTOR: I mean we have pared back the volume of the witnesses to be called. If her evidence became a particular relevant issue then the Crown would [not?] have discharged its obligations by not [sic] calling the witness. I don’t mind one way or the other what the jury make of the evidence. The only thing is as a matter of law Jones v Dunkel at least in terms of Crown cases doesn’t seem to apply because of the Crown’s obligation to call all available witnesses.

HIS HONOUR: I think the notion that Jones v Dunkel doesn’t apply to the Crown is a different concept. I will have a look at that.

DEFENCE COUNSEL: Perhaps we can defer that to some point before your Honour’s summing up.

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51. Although defence counsel had indicated to his Honour that the question of whether a comment should be made about the absence of the witness in accordance with Jones v Dunkel had arisen, the matter was never raised again with the trial judge, either before the summing up or after it. The Judge clearly had not declined the application or refused to make a comment. The matter had not been determined at the time defence counsel had raised it but had been deferred until after addresses at the suggestion of defence counsel.

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54. In any event the question of whether a Jones v Dunkel direction should be given against the Crown in a criminal trial has most recently been considered by the High Court in Mahmood v Western Australia [2008] HCA 1; 232 CLR 397, a decision to which neither party referred the Court. This decision related to a trial on a charge of murder. One of the grounds of appeal complained that the trial judge did not give a Jones v Dunkel direction against the Crown in relation to the failure of the Crown’s expert witness to give evidence about stains of the deceased’s blood found in the accused’s pocket. The Crown asserted that the accused must have placed the murder weapon, a knife, in his pocket before disposing of it. Defence counsel in his address criticised this allegation as conjecture in light of the failure of the expert to be asked about the cause of the staining.

55. In dismissing this ground of appeal, the Court stated (footnotes omitted):

[27] It was neither necessary nor appropriate for the trial judge to direct the jury that an inference adverse to the case for the prosecution could be drawn because the presence of blood in the appellant's trouser pocket had not been the subject of evidence by the prosecution's witnesses. In the joint reasons in RPS v R it was pointed out that where a witness, who might have been expected to be called and to give evidence on a matter, is not called by the prosecution, the question is not whether the jury may properly reach conclusions about issues of fact but whether, in the circumstances, they should entertain a reasonable doubt about the guilt of the accused. Similar views were expressed by Gaudron and Hayne JJ and by Callinan J in Dyers v R.

56. In R v Riscuta and Niga [2003] NSWCCA 6 at [103] in the judgment of Heydon JA (as he then was) this Court refused to apply what was said by Gaudron and Hayne JJ in Dyers v The Queen [2002] HCA 45; 210 CLR 285 at [6] to the effect that a Jones v Dunkel direction should not be given against the Crown. Heydon JA stated:

… if the proposition in [6] represented the law of New South Wales, it would amount to a change in the law. In my opinion it did not in fact change the law, but constituted only a dictum. If the reasoning in that dictum were incorporated in a decision of the High Court, or in a decision of this Court, it would change the law. On an issue of this importance, which could radically affect the rights of accused persons to seek comments adverse to the Crown case, a change in the law should not be effected by this Court, but only by a decision of the High Court. It has not yet been effected by any decision of the High Court.

It seems to me that the decision in Mahmood in the passage quoted has effectively changed the law in this State.

57. In the present case, therefore, it may have been appropriate for the trial judge to raise with the jury whether the failure of the Crown to call the witness gave rise to a reasonable doubt about the truthfulness and reliability of the evidence of Williams but he was never asked to do so. The absence of such a comment in relation to a witness, who was only relevant to the credit of Williams, did not amount to a miscarriage of justice.