Making an unsworn statement should not have counted against Ken Dyers, writes Ysaiah Ross

In a four-one majority decision, the High Court last week upheld the appeal in the Ken Dyers indecent assault case.

The court quashed Dyers’ conviction for indecent assault of a 13-year-old girl and ordered that a new trial be held at the discretion of the Director of Public Prosecutions.

Dyers, the head of a personal development organisation, Kenja, was charged in 1999, 11 years after the alleged assault.

The case made headlines because the media regarded him as a “cult leader”.

Dyers’ barrister, Henry di Suvero, was found guilty of professional misconduct as a result of the zeal of his efforts to see that Dyers received a fair trial.

Di Suvero was found to have been overly critical in comments to the judge and the prosecutor in the original 10-week trial.

The trial judge closed the courtroom for most of the Crown’s case, but this was considered a serious error on appeal.

The retrial took far less time, did not have the problems of the first trial, but still resulted in an appeal because of the instructions of the trial judge to the jury.

These instructions were the main issue in the appeal to the High Court.

Dyers tendered an unsworn statement at his trial in which he said he had seen the complainant on the morning in question, but in the company of her mother. He also tendered as evidence his diary, which had a number of appointments but not one involving the complainant.

Neither Dyers nor the prosecution called as witnesses any of the people who could have been present that morning.

Justices Mary Gaudron and Kenneth Hayne, in their joint judgement, found that the trial judge had misdirected the jury.

Initially, the judge told the jury that if a witness who could give some relevant evidence was not called, “you are entitled to speculate upon what that witness might have said if the witness had been called”.

The judge then gave further instructions, saying that if the jury expected a witness to be called who would have supported what was asserted and no satisfactory explanation was given for failing to call that person, “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”.

Gaudron and Hayne said that 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”.

Furthermore, “as a general rule, a trial judge should not direct the jury that the prosecution would be expected to have called persons to give evidence other than those it did call as witnesses... 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.”

Justices Michael Kirby and Ian Callinan, in separate judgements, both criticised the Court of Criminal Appeal’s handling of the case.

The appeal court found that Dyers’ failure to tender sworn evidence was a “substantial impediment” in arguing that the verdict of the jury was unreasonable.

Kirby said that, by law, the accused does not have to say anything and should not be disadvantaged for deciding to give an unsworn statement.

“To do so would amount to a form of coercion upon him to give sworn evidence. That would undermine the legal rights of the appellant and the accusatorial character of his trial,” Kirby said.

Callinan used strong language in rejecting the judge’s comments in the Court of Criminal Appeal.

He said the judge’s views were as erroneous on appeal as if they had been made to a jury.

Callinan said: “In criminal cases, the absence from the witness box of the accused does not provide a basis for the justification of a conviction.

“Furthermore, the increasing popularity of a ground of appeal provides no foundation for the invention of a new principle of law in criminal cases contrary to the settled principle upon which the criminal law rests, that from beginning to end the onus of proving guilt lies upon the Crown.”

A majority of the High Court held that it was at the discretion of the DPP to order a new trial.

However, Kirby opposed this view on a number of grounds, including Dyers’ age (he is in his 70s), the fact that it would be his third trial, the cost to the public, the inconvenience and the fact that the events took place so long ago.

I believe the DPP will exercise his discretion, based on some of Kirby’s reasons, and not order a new trial.

 
Ysaiah Ross (formerly Stan Ross) taught legal ethics for 26 years.