Don't mention the elephant

Back in 1991, the High Court stated that:

in examining the evidence of a witness in a criminal trial – including the evidence of the accused – the jury is entitled to consider whether some particular interest or purpose of the witness will be served or promoted in giving evidence in the proceedings. But to direct a jury that they should evaluate evidence on the basis of the interest of witnesses in the outcome of the case is to strike at the notion of a fair trial for an accused person.

These two sentences seem to set down a proposition that while the jury are entitled to consider whether some interest of the accused would be served by giving the evidence he has (such as, you know, securing an acquittal), it is an error of law for the judge to tell the jury that. Yesterday, the High Court reiterated that prohibition.


In Hargraves & Stoten v R [2011] HCA 44, the majority (Heydon J delivered a separate judgment) held that:

Inviting a jury to test the evidence given by an accused according to the interest that the accused has in the outcome of the trial, or suggesting that the accused's evidence should be scrutinised more carefully than the evidence of other witnesses, deflects the jury from recognising and applying the requisite onus and standard of proof. It is for the prosecution to prove its case, not for the accused to establish any contrary proposition. The instructions which a trial judge gives to a jury must not, whether by way of legal direction or judicial comment on the facts, deflect the jury from its fundamental task of deciding whether the prosecution has proved the elements of the charged offence beyond reasonable doubt.

The Court explained that the 1991 decision, Robinson, did not so much lay down a new rule, but manifested a particular application of a general principle that the judge's directions must not undermine the onus and standard of proof or divert the jury from its task. That said, the court dismissed the appeal on the basis that the particular directions given in this case did not contravene that prohibition. Instead, the court held that the judge's directions that a witness' interest was one matter the jury could consider when assessing the evidence would have been seen to relate to a particular witness, which the defence argued was giving evidence to further some particular interest.

Heydon J, in a separate judgment concurring in the result, held that given the decision that the judge's directions did not contravene the principle from Robinson, it was not a suitable case for re-examining that principle, and (consistent with his statements in the course of argument), continued to express doubt about the basis for the Robinson principle.

As Dr Manhatten recently pointed out, a defence argument of 'Well, he would say that, wouldn't he" in relation to a prosecution witness has a chance of rebounding on the defendant. It seems to me to be an unsatisfactory state of the law when the court maintains that such a reasoning process is valid even in relation to an accused's evidence, but must not be mentioned for fear that it would divert the jury.

The problem with the reasoning process is that it doesn't lead you to any useful conclusion. Whether innocent or guilty, of course an accused is likely to seek to minimise his involvement in the offending. The problem is that this doesn't help you decide which motivation is operating. This issue also has overtones of the historical reasons for denying the accused the right to give evidence in his own trial - that the evidence would have no probative value because of course the accused is going to give an exculpatory account. The suggested solution, which is what the trial judge in Robinson had adopted, and was found to be in error for doing, was to say that the evidence needed to be subjected to special scrutiny. So that the argument ceases to be an analytic tool for determining where the truth lies, but a basis for being cautious because of the obvious possibility that the evidence is from a guilty accused trying to secure an unjust acquittal.

Fortunately, the notion that accused who is in fact guilty is giving false evidence to secure an acquittal is so obvious that there is another good reason to prohibit the direction. That is, it insults the intelligence of the jury to tell them something so obvious. This avoids the contorted logic involved in saying that the direction diverts the jury from its proper task, but the judge is entitled to use the same reasoning of its own motion. A rule that is effectively "don't mention the elephant / war". Unfortunately, I don't think I'll see "so obvious it would insult the jury to mention it" adopted as the basis for prohibiting jury instructions any time soon.