Edwards v Director of Public Prosecutions (Cth) [1987] HCA 67; (1987) 163 CLR 558 (15 October 1987)

Edwards Applicant;

and

The Director of Public Prosecutions of the Commonwealth of Australia

Respondent.

Collie Applicant;

and

The Director of Public Prosecutions of the Commonwealth of Australia

Respondent.

15 October 1987

Brennan , Deane , Dawson , Toohey and Gaudron JJ.

Brennan J.

The applicants were convicted after a trial before the Supreme Court of Victoria with having conspired with other persons to defraud the Commonwealth. The charge was laid under s. 86(1)(e) of the Crimes Act 1914 (Cth) as it then stood, a provision which corresponds with the present s. 86A. The application is founded in the first instance on certain alleged non-directions and misdirections in the learned trial judge's charge. The charge must, of course, be read as a whole; it is inappropriate to select particular sentences or even paragraphs and to submit them to critical examination out of the context in which they are found. It must also be read in the light of the issues which the jury had to determine. In the context in which the challenged passages are found in the learned trial judge's charge and having regard to the issues that were alive in the trial we detect no serious misdirections or non-directions.

Another ground on which the application for special leave is founded is that the learned trial judge misdirected the jury as to a matter affecting the weight they might give to the unsworn statements of the two applicants. The matter is of some significance because a third accused who gave evidence and did not make an unsworn statement was acquitted. The learned trial judge said this:

"Furthermore the statement is not made on oath and if it can be later shown that an accused man made a false statement in the course of an unsworn statement from the dock he is not subject to prosecution for perjury."

That direction was concededly appropriate if the charge had been laid under a State Act. But the charge under which the applicants were presented arose under the Crimes Act and s. 35 of the Crimes Act, it is said, applies to unsworn statements. Sub-section (1) of that section reads as follows:

"Any person who, in any judicial proceeding, or for the purpose of instituting any judicial proceeding, knowingly gives false testimony touching any matter, material in that proceeding, shall be guilty of an indictable offence. Penalty: Imprisonment for 5 years."

Although an unsworn statement, like oral evidence, is capable of obtaining credence for what is stated: see Peacock v The King(5), it is not oral evidence. In the absence of a clear provision (cf. s. 25(4) of the Evidence Act 1958 (Vic)), it would indeed be surprising if the crime of perjury were committed by making knowingly a false, unsworn statement in exercise of a right conferred on an accused person by s. 418 of the Crimes Act (Vic) which is applicable to a person charged with a Commonwealth offence.

Section 35 of the Crimes Act (Cth) is a penal provision and, unless the context so requires, it would be wrong to construe "testimony" in that section as including an unsworn statement for that would alter the nature of the benefit which the availability of an unsworn statement has historically conferred on an accused person. The Court therefore refuses special leave to appeal.

Applications dismissed.

Solicitors for the first applicant, Yellands.

Solicitors for the second applicant, Vorrath, Davis & Abercrombie.

Solicitor for the respondent, Director of Public Prosecutions.

R.A.S.

(1) [1911] HCA 66; (1911) 13 C.L.R. 619.

(2) [1979] V.R. 497.

(3) [1900] A.C. 467.

(4) [1952] 2 Q.B. 8.

(5) (1911) 13 C.L.R. 619, at pp. 645-646.