Dyers v R

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: Gaudron,Hayne JJ,McHugh,Kirby J,Callinan J
• Judgment Date: 09 October 2002
• Neutral Citation: 2002-1009 HCA A,[2002] HCA 45
• Docket Number: S255/2001
• Date: 09 October 2002

Kenneth Emmanuel Dyers

Appellant

and

The Queen

Respondent

[2002] HCA 45

Gaudron, McHugh, Kirby, Hayne and Callinan JJ

S255/2001

HIGH COURT OF AUSTRALIA

Dyers v The Queen

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

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

1 Gaudron and Hayne JJ. In 1999, the appellant was indicted, in the District Court of New South Wales, on a charge of indecently assaulting a 13 year old girl in 1988 — 11 years earlier. Although the indictment alleged that the offence had occurred between specified dates, by the end of the prosecution case it was clear that it was alleged that the assault had occurred on the morning of 29 July 1988. In an unsworn statement at his trial, the appellant acknowledged that he had seen the complainant that morning, but he said that it was only in the company of her mother, and while he was otherwise engaged in meetings with others. The appellant's appointment diary was tendered in evidence. It recorded a number of appointments for the appellant during the day. No appointment with the complainant was recorded. There were, however, references to a meeting at 9.30 am with two other persons, a meeting between 1.00 pm and 3.00 pm with several other persons, including the complainant's mother, and what was described as a ‘processing session’ with a Ms Tinkler between 9.30 am and 11.30 am in a room called the ‘energy conversion room’. The complainant swore that the appellant had indecently assaulted her in that room at the end of a ‘processing session’ with her in the morning of 29 July 1988.

Gaudron

2 Neither Ms Tinkler nor others who were recorded in the diary as having appointments at 9.30 am and 1.00 pm gave evidence at the trial. The principal issue in the appeal is this. Did the trial judge misdirect the jury by telling them that, if they concluded: first, that any of these persons was one whom the jury would expect one of the parties to have called to support what was asserted by that party, and secondly, that there was no satisfactory explanation for the failure of that party to call the person to give evidence, then ‘you are entitled to draw the inference that the evidence of that witness would not have assisted the party who you have assessed should have called that witness’?

3 Yet immediately before giving this direction, evidently modelled on what was said inJones v Dunkel1, the trial judge had told the jury that where it appeared that there was a witness who could be expected to have been able to give some relevant evidence on some aspect of the case, but the witness had not been called, ‘you are not entitled to speculate upon what that witness might have said if the witness had been called’.

4 The respondent submitted that, following this Court's decisions inRPS v The Queen2 and Azzopardi v The Queen3 (both of which were delivered after the

appellant's trial), the former of these directions (the Jones v Dunkel direction) should not have been given, but the latter direction (not to speculate about what evidence might have been given by those who were not called) should have been given. That submission should be accepted.

5 As a general rule a trial judge should not direct the jury in a criminal trial that the accused would be expected to give evidence personally or call others to give evidence. Exceptions to that general rule will be rare. They are referred to inAzzopardi4. As a general rule, then, a trial judge should not direct the jury that they are entitled to infer that evidence which the accused could have given, or which others, called by the accused, could have given, would not assist the accused. If it is possible that the jury might think that evidence could have been, but was not, given or called by the accused, they should be instructed not to speculate about what might have been said in that evidence.

6 Further, as a general rule, a trial judge should not direct the jury in a criminal trial that the prosecution would be expected to have called persons to give evidence other than those it did call as witnesses. It follows that, as a general rule, the judge should not direct the jury that they are entitled to infer that the evidence of those who were not called would not have assisted the prosecution. A direction not to speculate about what the person might have said should be given. Again, exceptions to these general rules will be rare and will arise only in cases where it is shown that the prosecution's failure to call the person in question was in breach of the prosecution's duty to call all material witnesses.

7 There are three principal reasons for concluding that aJones v Dunkel direction should not have been given against the appellant in this matter.

8 First, the trial judge's direction invited the jury to consider two questions: would one party be expected to have called a witness to support that party's assertions, and was there a satisfactory explanation for the party's failing to call the evidence? The trial judge gave no direction that would have helped the jury in deciding how to answer these questions. In particular, the jury were given no instructions about when a party would be expected to call a witness, or what would be a satisfactory explanation for not calling that person. And, as it happens, there had been little examination of these matters in evidence given at the trial. Reference was made in cross-examination to Ms Tinkler being available to give evidence but there was no reference to whether any of the others mentioned in the appointment diary were available. More importantly, there was no evidence which would have provided the jury with a basis for concluding that

one or more of these witnesses could have been regarded as being in the camp of one party to the matter rather than the other. Rather, the final address for the prosecution asserted (in effect) that there were persons whom it could be expected that the defence would call, but the basis for making that assertion had not been established in evidence. These would be reasons enough to hold that the direction should not have been given in this case. But the problem with the direction (to the extent to which it is properly understood as having been directed at the appellant) is more deep-seated than any deficiency in the evidentiary basis which the direction assumed.

9 As was pointed out inRPS5, it will seldom, if ever, be reasonable to conclude that an accused in a criminal trial would be expected to give evidence. Not only is the accused not bound to give evidence, it is for the prosecution to prove its case beyond reasonable doubt. The mode of reasoning which is spoken of in R v Burdett6 and Jones v Dunkel7 ordinarily, therefore, cannot be applied to a defendant in a criminal trial. That mode of reasoning depends upon a premise that the person concerned not only could shed light on the subject but also would ordinarily be expected to do so. The conclusion that an accused could shed light on the subject-matter of the charge is a conclusion that would ordinarily be reached very easily. But given the accusatorial nature of a criminal trial, it cannot be said that, in such a proceeding, the accused would ordinarily be expected to give evidence. So to hold would be to deny that it is for the prosecution to prove its case beyond reasonable doubt. That is why the majority of the Court concluded, in RPS and in Azzopardi, that it is ordinarily inappropriate to tell the jury that some inference can be drawn from the fact that the accused has not given evidence. To the extent to which earlier decisions of intermediate courts held to the contrary8 they were overruled9.

10 The reasoning which underpinned the decisions inRPS and in Azzopardi cannot be confined to the accused giving evidence personally. It applies with equal force to the accused calling other persons to give evidence. It cannot be said that it would be expected that the accused would call others to give

evidence. To form that expectation denies that it is for the prosecution to prove its case beyond reasonable doubt.

11 The second of the principal reasons for concluding that aJones v Dunkel direction should not have been given is closely connected with the first. Any conclusion about who would be expected to call a person to give evidence must take account of the obligations of the prosecution. If persons are able to give credible evidence about matters directly in issue at the trial, those facts, standing alone, would ordinarily suggest that the prosecution should call them10. As has been pointed out in several decisions of this Court, a basic requirement of the adversary system of criminal justice is that the prosecution, representing the State, must act ‘with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused's trial is a fair one’11 (emphasis added). That requires the prosecution to call all available material witnesses unless there is some good reason not to do so. The fact that a witness will give an account inconsistent with the prosecution case is not a sufficient reason for not calling that person12.

12 If, in a particular case, the prosecution chooses, for good reason, not to call a witness (as, for example, on the basis that the evidence which would be given by that witness would be ‘unreliable,...