Rps v R

• Jurisdiction: Australia Federal only
• Judge: Gaudron ACJ,Gummow,Kirby,Hayne JJ,McHugh J,Callinan J
• Judgment Date: 03 February 2000
• Neutral Citation: 2000-0203 HCA C,[2000] HCA 3
• Docket Number: S116/1998
• Date: 03 February 2000
• Court: High Court

[2000] HCA 3

HIGH COURT OF AUSTRALIA

Gaudron ACJ, McHugh, Gummow, Kirby, Hayne and Callinan JJ

S116/1998

RPS

Appellant

and

The Queen

Respondent

Representation:

A J Bellanto QC with B J Rigg for the appellant (instructed by Uther Webster & Evans)

M G Sexton SC, Solicitor-General for the State of New South Wales with A M Blackmore for the respondent (instructed by Solicitor for Public Prosecutions (New South Wales))

Criminal Appeal Act 1912 (NSW), s 11.

Evidence Act 1995 (NSW), s 20.

RPS v The Queen

Criminal law — Evidence — Silence of the accused — Directions to jury — Circumstances in which jury may take account of accused's failure to give evidence.

Criminal law — Judicial instructions — Instructions about reasoning towards guilt.

Courts and judicial system — Apprehension of judicial bias — Tension between trial judge and counsel at trial — Use of trial judge's report by appeal court.

Words and phrases — ‘right to silence’.

ORDER

1. Appeal allowed.

2. Set aside the order of the Court of Criminal Appeal of New South Wales made on 13 August 1997.

3. In place thereof, order that the appeal against convictions to the Court of Criminal Appeal of New South Wales be allowed, the convictions quashed and that there be a new trial on counts 4, 6, 7 and 8 of the indictment.

1 Gaudron ACJ, Gummow, Kirby and Hayne JJ. The appellant was charged, in the District Court of New South Wales, with two counts alleging that he had had carnal knowledge 1 of his daughter and six counts alleging that he had had sexual intercourse 2 with her. The offences were alleged to have occurred between various dates, the earliest of which was 6 February 1983 (when the complainant was four years old) and the latest of which was 31 July 1993 (by which time the complainant was 14 years old). He pleaded not guilty. The trial judge directed the jury to acquit the appellant of one of the charges of sexual intercourse; the jury returned verdicts of guilty to four of the remaining five counts of sexual intercourse and verdicts of not guilty to the other count of sexual intercourse and the counts of carnal knowledge.

2 The appellant appealed to the Court of Criminal Appeal of New South Wales against his convictions but that appeal, and his application for leave to appeal against sentence, were dismissed 3. By special leave, he now appeals to this Court.

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

The trial

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

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

6 There was a deal of debate at trial and on appeal (both in the Court of Criminal Appeal and in this Court) about how the appellant's statements might properly be understood if the jury accepted that they were made. In particular, given the context in which they were alleged to have been made, what was it that the appellant referred to when he said that ‘everything else she said is true’? Could the appellant's statements be taken by the jury as an admission by him of some sexual misconduct towards the complainant? Could they be taken as an admission of some or all of the particular acts of digital penetration that were alleged against the appellant?

7 These were all questions for the jury and in the course of his charge the trial judge identified the relevant issues for the jury. In doing so he misquoted one part of the evidence (there being no running transcript of proceedings available to him). Trial counsel did not complain that the judge had misquoted the evidence and we are not persuaded that the Court of Criminal Appeal was wrong in holding that the misquotation was not significant. The Court of Criminal Appeal was right to conclude that the trial judge made no error in directing the jury that they could (but need not) treat the statements made by the appellant as an admission of some of the acts of digital penetration that were alleged.

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.

9 Although no separate ground of appeal was advanced in this Court that alleged the trial miscarried on this account, reference was made to the trial judge's statements in connection with the appellant's contention that the jury were misdirected about the significance to be attached to the appellant's not giving evidence. In the end, however, the statements made by the trial judge (which, as the Court of Criminal Appeal rightly pointed out 4, were not well founded in law) do not affect whether the trial judge erred in his directions about the appellant's not giving evidence. This matter need not be noticed further.

10 Secondly, the appellant contended (both in the Court of Criminal Appeal and in this Court) that the trial judge had interjected in the course of the proceedings in ways, and to an extent, that would have suggested to the fair-minded observer that he was biased. Particular reliance was placed in this regard upon the trial judge's report to the Court of Criminal Appeal, provided pursuant to s 11 of the Criminal Appeal Act 1912 (NSW). The trial judge made very adverse comments in that report about the conduct of the appellant's trial counsel.

11 The appellant's contention was cast in terms of apparent bias but it was not clear exactly what was meant by this. In particular, it was not clear whether it was being suggested that a fair-minded observer would have concluded that the judge had predetermined some issue. And, if that was what was being suggested, it was far from clear what issue or issues that would fall for decision by the judge (as opposed to the jury) would have appeared to have been prejudged. When pressed on this aspect of the matter, counsel for the appellant suggested that the trial judge had been antagonistic to counsel who had appeared for the appellant and that the conduct of the trial generally tended to undermine the defence case and bolster that of the Crown. But these are not complaints of bias or the appearance of bias; they amount to a complaint that the conduct of the trial was unfair. That is a radically different complaint and it is wrong to seek to apply tests developed in connection with questions of apparent bias in deciding whether the trial was fair. That question will turn largely on whether the accused has had a proper opportunity to advance his or her defence to the charge.

12 It is enough to say of this aspect of the appellant's argument that the course of events at trial might be said to reveal a degree of tension between trial counsel for the appellant and the trial judge. The analysis made by Hunt CJ at CL in the Court of Criminal Appeal of the bases put forward in that Court for the contention that the trial judge was, or appeared to be, prejudiced or biased 5 shows that the appellant was not denied a fair trial.

13 It is, no doubt, unfortunate if tension develops between counsel and the trial judge, and judges must do their best to avoid it. But if the conduct of counsel at trial affects the proper course of proceedings the judge may find it necessary to reprove counsel or to criticise his or her conduct. Particularly in a criminal trial it will usually be appropriate to offer any sustained reproof or detailed criticism in the absence of the jury. Doing so will avoid the risk that the jury might infer from the judge's remarks an opinion about the merits of the accused's defence. In this case the trial judge thought that it was necessary to say what he did and we are not persuaded that he was wrong to reach that view.

14 The fact that the trial judge thought it desirable to go into some detail about these matters in his report to the Court of Criminal Appeal does not lead to some different conclusion about the significance of what happened at trial. The report contemplated by s 11 of the Criminal Appeal Act6 is not a document intended to give the trial judge some opportunity to defend his or her conduct of the trial 7. The...