Special Bulletin 15 — October 2005
This Bulletin has been archived because it has been superseded and/or incorporated in the relevant section of the Bench Book
Mule v The Queen [2005] HCA 49; (2005) 79 ALJR 1573
Appropriate directions where the accused participates in an ERISP and makes inculpatory and exculpatory representations, but elects not to give evidence at trial. Judge may give directions and make comments about the nature and quality of the representations.
In Mule v The Queen [2005] HCA 49; (2005) 79 ALJR 1573 (an appeal from the Court of Criminal Appeal of WA), the appellant was convicted of having in his possession a prohibited drug with intent to sell or supply to another. At trial, the Crown tendered a videotape of an interview with police in which the appellant made inculpatory statements acknowledging that he was in possession of the drugs and exculpatory statements to the effect that they were only for his personal use. The appellant elected not to give evidence.
The High Court unanimously held (at [21]):
An observation by the trial judge that the appellant’s [exculpatory] out of court assertions, although disclosed in evidence by the prosecution’s tender of the videotape, were not sworn testimony, that, unlike the admissions, they were not against the appellant’s interests, and that the jury could give them less weight than the admissions, was proper.
Of particular interest is the following passage from the High Court judgment (at [23]):
As has been noted, many cases involving evidence of out of court “mixed” statements by an accused person are more complex than the present. In R v Cox [1986] 2 Qd R 55 at 65, Thomas J rightly cautioned against inappropriate generalisations concerning the difference between inculpatory and exculpatory parts of a statement: a difference that in some cases (not including the present) might be difficult to discern. He said, in a passage quoted by McLure J in her reasons:
“With respect, it seems to me to be undesirable that juries be given general a priori directions as to what sorts of evidence are likely to be true, or as to the weight which should be accorded to different parts of the one statement. The matter of weight is for them, and the weight of each part of the statement should be determined in the light of the whole of the evidence. There is, of course, no reason why the trial judge should not point out that such statements have not been made on oath and (where appropriate) that they have not been tested by cross-examination. He may explain the traditional reasons why admissions against interest are commonly regarded as reliable evidence, and make any appropriate comments about particular parts of the evidence. The weight which may fairly be accorded to a self-serving statement varies so much from case to case that it is unwise to lay down any general disparaging directions concerning such statements, although of course, critical comments may be made in appropriate cases.” (emphasis added)
Apart from the words emphasised in that passage, it is a sound guide to jury direction. In view of the long-standing controversies about why admissions are received, and in view of the fact that an admission need not have been against interest at the time it was made, it is undesirable to direct juries along the lines suggested by the words emphasised.
The High Court was of the view that the summing-up, considered as a whole, made it sufficiently clear that, ultimately, it was for the jury to decide what weight should be given to the particular statements (see [22]).
Reference should also be made to R v Wilson [2005] NSWCCA 20; (2005) 62 NSWLR 346. Although the sole (unsuccessful) ground of appeal was whether the right to silence direction was deficient, Hunt AJA considered the issue but with reference to s 165 of the Evidence Act 1995. The trial judge directed the jury in Wilson that the appellant’s hearsay statements to the police and other witnesses were not on oath or affirmation or subjected to cross-examination, and were not evidence in the same sense as the evidence which had been given in court by witnesses. The direction was not given with reference to s 165 (unreliable evidence) which permits the judge, upon request of a party, to warn the jury that hearsay evidence is of a kind that may be unreliable.
Hunt AJA said (at [38]) that if a trial judge gives a warning under s 165 it should not suggest that the hearsay evidence is in fact of less weight. The judge should make clear that it is for the jury to decide what weight should be given to the hearsay evidence. After referring to Mule v The Queen [2004] WASCA 7 and the House of Lords’ decision of Regina v Sharp [1998] 1 WLR 7, Hunt AJA said (at [39]):
This issue was not argued in the present appeal, but judges who intend to give such a warning would — in the light of the requirement of s 165(2) that the warning is that the hearsay evidence “may” be unreliable — do well to leave to the jury the issue of the weight actually to be given to the hearsay evidence in the particular case before them.
Amendments will be made to the Bench Book to incorporate the above principles.