Court of Appeal (WA)|2006-11-07|Before: Smith JA

Aubertin v The State of Western Australia [2006] WASCA 229 (7 November 2006)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : AUBERTIN -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 229

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Test for mistake under s 24 of the Criminal Code - Reference to reasonable or ordinary person - Whether lies capable of being Edwards lies

BRK v The Queen [2001] WASCA 161

Daniels v The Queen (1989) 1 WAR 435

Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193

G J Coles & Co Ltd v Goldsworthy [1985] WAR 183

Houghton v The Queen [2004] WASCA 20

Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572

Lane v Austar Enterprises Pty Ltd [2000] WASCA 215

Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507

McCullough v The Queen [1982] Tas R 43

Stingel v The Queen [1990] HCA 61; (1990) 171 CLR 312

Truica v The Queen [2001] WASCA 221

Broadhurst v The Queen [1964] AC 441

Evans v The Queen (1985) 38 SASR 344

O'Brien v Ostrowski [1999] WASCA 184

R v Lucas [1981] QB 720

1 ROBERTS-SMITH JA: I have read the reasons to be published by McLure JA. I agree with those reasons and have nothing to add.

2 McLURE JA: The appellant was convicted after trial of one count of sexual penetration of the complainant without her consent by engaging in cunnilingus and one count of indecently assaulting the complainant by touching her breasts. The offences occurred on 13 March 2004 at Northbridge.

3 The appellant relies on two grounds of appeal. He contends that the learned trial Judge erred:

1. in his directions to the jury as to honest and reasonable mistake by directing the jury that the reasonableness of the belief was to be assessed by reference to the ordinary person in the accused's position; and

2. in directing the jury in accordance with Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193 when there was no basis in law for such a direction.

4 The background is as follows. The complainant and her boyfriend, R, had a brief acquaintanceship with the appellant prior to the date of the offences and had exchanged mobile telephone numbers. There had been a number of text messages and telephone conversations between the appellant and the complainant in the week prior to the offences. Arrangements were made to go out for drinks on Friday 12 March 2004. The appellant and his brother rented a hotel room at the Northbridge Hotel for the evening. The complainant and R believed they had been invited to spend the night as guests of the appellant but the appellant testified that this had not been discussed and he was surprised by their behaviour in immediately placing their bags in the bedroom where he had planned to sleep.

5 The State case was that the complainant and R arrived at the appellant's hotel room at approximately 7 pm on 12 March 2004 after having had drinks elsewhere. R went out to purchase alcohol. The complainant had two or three glasses of alcohol and tried on a number of outfits and asked the appellant and his brother's opinion. The complainant testified that there was nothing suggestive about the way she had tried on different outfits whereas the appellant testified that she had removed her top in front of him and "paraded around a bit" wearing a top. He suggested she wear a bra with the outfit she ultimately selected and she said she did not need to.

6 On R's return, the appellant and the complainant went into the bathroom in the hotel room and used some cocaine. The complainant testified that the appellant offered her the cocaine and locked the bathroom door which she was not comfortable with so she unlocked it and reminded him that she had a boyfriend. The appellant testified that R had brought the cocaine back with him after the appellant paid for it but this was denied by the complainant and R. The appellant also testified that the complainant had kissed him on the mouth in the bathroom and said thank you after they had both used cocaine but she denied this happened.

7 Two female friends of the appellant and his brother arrived at the hotel room. The complainant testified that shortly before everyone left the hotel room, the appellant offered her some more cocaine, which she, the two female friends of the appellant and the appellant used. The appellant denied this happened. They all left and went to a night club in West Perth where the girls used amphetamines in the women's toilet. The amphetamines were provided by one of the female friends of the appellant. The complainant testified that the appellant also "had a line of speed" in the toilet but the appellant denied it. Shortly after midnight the party went to another night club which was in Subiaco.

8 Whilst they were at the night club in Subiaco the complainant testified that the appellant tried to "dirty dance" with her, rubbing himself up against her. She said she was uncomfortable with it and told him she had a boyfriend. She denied reciprocating. She testified that later at the night club he came up and tried to feel her groin area and she pushed him away. She testified that she did not tell R what had happened on either occasion. The appellant testified that he and the complainant engaged in erotic dancing together, with both touching each other. He denied trying to touch her groin.

9 At approximately 3 am the complainant and R went back to the appellant's hotel room and went to bed. The appellant and other members of the party tried to persuade them to get out of bed but they refused. Later, R got out of bed and into a spa bath in the bathroom. The complainant fell asleep.

10 The complainant testified that she was woken by someone performing oral sex upon her. She initially thought it was R. She testified that she was lying on her stomach. She leaned up, turned around and saw it was the appellant and mumbled "go away" and moved away from him. The complainant said the appellant then left without saying anything. She rolled over and went to sleep as she did not want a confrontation.

11 The complainant testified that she went back to sleep but was woken again when the appellant re-entered her room and touched her on her back and the side of her breasts. She said that she again mumbled for him to go away and she rolled away from him. He left the room.

12 The appellant testified that the complainant was awake throughout both incidents. He said that he entered the bedroom to collect some clothes and she asked who it was. He identified himself. They started talking and kissing and he said the cunnilingus was consensual and she did not push him away. He said he left the bedroom because someone called out to him.

13 On the appellant's account he returned into the bedroom and the complainant was lying there wide awake. They spoke and he started rubbing her back and touching her breasts. They were both stressed that the complainant's boyfriend would enter the room.

14 The complainant gave evidence that she started crying and a matter of minutes later R returned to the bedroom. R's evidence was that he returned from the spa bath to the bedroom to find the complainant sobbing. The complainant told R what had happened following which they packed their bags and left the hotel room. On the way out of the room R confronted the appellant calling him a "disgusting pig" and the appellant replied, "What? What have I done?". The complainant and R then left the hotel room. The incident was reported to police one week later.

15 At about 9 am on 13 March 2004 the appellant telephoned R and they had a long discussion. R testified that the appellant had said to him, "It wasn't me. It must have been somebody else ... It must have been Peter".

16 The appellant confirmed that in his telephone conversation with R he denied sexually penetrating the complainant,

"Because I didn't really want to tell him anything. I didn't want to cause any problems. I didn't know what [the complainant] had told [R]. I should have, but I didn't ... I didn't want to cause any problems between [R] and [the complainant] or our relationship that we had formed. I honestly didn't know what was going on. I was a bit confused."

17 The appellant denied there was any reference to Peter during the conversation with R.

18 On the night of 13 March 2004 the appellant telephoned the complainant and had a discussion with her. The complainant testified that the appellant told her that it wasn't him, "It was Pete" and that the appellant would videotape Peter admitting it was him.

19 The appellant gave evidence that Peter had been raised by him as a friend who was going through the same thing. According to the appellant he said to her, "Why didn't you just say it was Peter instead of saying it was me".

20 The appellant's DNA was consistent with the DNA sample taken from the underwear the complainant was wearing on the night in question.

21 The trial Judge directed the jury on the availability of the defence of honest and reasonable but mistaken belief that the complainant had consented to the conduct the subject of each charge on the indictment.

22 Section 24 of the Criminal Code (WA) ("Code") deals with mistake of fact. It materially provides:

"A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist."

"The law is that a person who does an act under an honest and reasonable but mistaken belief in the existence of any state of things is not criminally responsible for the act to any greater extent than if the real state of things had been such as he believed it to be. So if [the appellant] honestly and reasonably but mistakenly believed that [the complainant] consented to an act of sexual penetration, then he would not be criminally responsible for his act in penetrating her. Now, like all issues in this case, ladies and gentlemen, the onus of proof lies on the State.

...

The State may discharge this onus by proving either that [the appellant] did not honestly believe that [the complainant] was consenting, or that his belief was in all the circumstances unreasonable ...

Turning to the question of the reasonableness of his belief if he held that belief, this is an objective factor to be judged by the standard of a reasonable person of the same age, background and level of intellectual functioning as the accused, in this case [the appellant], and who is familiar with all the circumstances that were known to the accused, [the appellant], at the relevant time.

So the question you have to ask yourselves and the question of the reasonableness of the belief is whether the State has proved beyond reasonable doubt that an ordinary person in the position of [the appellant] would not reasonably have believed that [the complainant] was a consenting party."

24 Senior counsel for the appellant contended that there are different lines of authority in this State as to the correct test of mistake under s 24 of the Code; that on the facts in this case there was a material difference in the application of the lines of authority; and that the trial Judge applied the wrong test.

25 According to the appellant, one line of authority is to the effect that reasonableness is to be adjudged by reference to the reasonable man (citing Daniels v The Queen (1989) 1 WAR 435 at 445 per Kennedy J; BRK v The Queen [2001] WASCA 161 at [34] - [40] per Murray J; Truica v The Queen [2001] WASCA 221 at [41] per Anderson J) and the other line of authority provides that the relevant question is whether there were reasonable grounds for the belief held by the accused (citing G J Coles & Co Ltd v Goldsworthy [1985] WAR 183 at 187 - 188 per Burt CJ; Lane v Austar Enterprises Pty Ltd [2000] WASCA 215 at [23] per Miller J). The appellant contends that on the second formulation regard must be had to the personal characteristics of the accused (age, gender, level of intellectual functioning etc) and other factors having the capacity to affect perception, including intoxication resulting from the use of alcohol and drugs.

26 Section 24 of the Code is in identical terms to the mistake provision (also s 24) of the Criminal Code 1899 of Queensland. Daniels was not followed by the Queensland Court of Appeal in R v Mrzljak [2004] QCA 420; [2005] 1 Qd R 308.

27 In Daniels the appellant was convicted of sexually penetrating the complainant without her consent. On appeal the appellant contended that the trial Judge erred in failing to direct the jury on the relevance of intoxication to a defence of honest and reasonable but mistaken belief. On that subject Kennedy J (Malcolm CJ and Seaman J agreeing) said (at 445):

" ... [the trial Judge] gave the jury a full direction on the question of mistake and he indicated that whether it was a reasonable mistake depended on whether an ordinary and reasonable man would have made it in the circumstances which the jury found to have existed that night. He added: 'You must always remember that the reasonable man is sober. The accused has said he was intoxicated and intoxication is no defence.' In my opinion, that direction is clearly correct. Intoxication is, no doubt, relevant to the question of whether an accused person has an actual belief in the existence of a state of things in terms of s 24 of the Criminal Code; but, if he does have that belief by reason of his state of intoxication at the time, it does not avail him if a reasonable man would not have been mistaken."

28 Burt CJ in G J Coles had not approved the ordinary or reasonable man test. He said (at 187 - 188):

"Expressed without reference to the onus of proof, what s 24 of the Code requires, in my opinion, is simply what it says, namely that 'a person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist'. The belief 'under' which the act is done must be honest, which is to say no more than it be held in fact; it must be reasonable, which is to say that it must be based on his appreciation of primary objective fact which is in reason capable of sustaining the belief ... "

29 The issue was again considered by the Full Court in BRK. The appellants had gang-raped the complainant. Mistake was relevant to some of the charges. The trial Judge had directed the jury as follows:

"If an accused honestly and reasonably but mistakenly believed that the complainant was consenting to an act of sexual penetration, he would not be criminally responsible for his act in penetrating her ...

The reasonableness of the accused's belief is an objective factor to be judged by the standard of a reasonable person of the same age, background and level of intellectual functioning as the accused, and familiar with all the circumstances that were known to the accused at the relevant time.

The question you have to ask yourselves is whether the Crown proves beyond reasonable doubt that an ordinary person, in the position of the accused whose case you are considering, would not reasonably have believed that the complainant was a consenting party."

30 There is no material difference between the direction given in this case and that considered in BRK. The appellants contended the trial Judge erred in failing to direct the jury that reasonable belief was related to the belief of the accused. Murray J (with whom Owen and Parker JJ agreed on this subject) dismissed this ground. He cited the statement of Burt CJ in G J Coles with approval and continued (at [34]):

"It is clear, in my opinion, that the Court is concerned under the section with the accused person's positive belief, genuinely or actually held. It is that belief which must be reasonable; ie, in all the circumstances it must have been reasonable for the accused person to hold the belief which, in this case, would render his conduct innocent. In my opinion that is what his Honour told the jury ...

...

In the passage complained of his Honour was giving directions, perhaps unnecessarily, as to the way in which the jury should make a judgment about the reasonableness of the accused's belief. As to that, for myself, I can see no error in the direction that the question of reasonableness was 'to be judged by the standard of a reasonable person of the same age, background and level of intellectual functioning as the accused, and familiar with all the circumstances that were known to the accused at the relevant time.' Because it is the actual belief of the accused with which the section is concerned, in judging reasonableness it will always be necessary to advert to the circumstances as they existed at the time in so far as they were known to the accused. The question is whether it was reasonable for him to hold the belief and that is the way in which I think the trial Judge left the question to the jury."

31 Murray J went on to observe that there was little authority on the extent to which the characteristics of the accused should be attributed to the reasonable person in the way included in the trial Judge's direction. He then referred to Daniels in the context of whether intoxication could be taken into account, noting that Kennedy J had relied on authorities relating to provocation. He continued (at [39]):

"I am of the view that it is unnecessary for a trial Judge, in directing a jury in respect of s 24 and its application to a particular accused person in a case where there is evidence capable of raising that question, to do more than tell the jury that the Crown must negate the existence of an honest and reasonable mistake and they must disprove it beyond reasonable doubt. This they may do if they establish to the required standard that the accused did not in fact hold the belief professed. Alternatively, if that is not established and the jury are to consider the question upon the basis that the accused may have honestly held that belief, the Crown must establish beyond reasonable doubt that the accused person could not in all the circumstances as they were presented to him or her, have reasonably held that belief, the jury using their own judgment as to the belief which could reasonably be held in those circumstances."

32 Murray J did not approve the hypothetical reasonable man test which appears to have been approved in Daniels. Moreover, Murray J is not suggesting the jury be directed to "stand in the shoes of the accused", an approach criticised by the High Court in Stingel v The Queen [1990] HCA 61; (1990) 171 CLR 312 at 327. A passing oral submission put for the appellant was that the trial Judge in this case had directed the jury to stand in the appellant's shoes in determining reasonableness. There is no basis for that submission. BRK was followed in Truica and Houghton v The Queen [2004] WASCA 20 at [62] - [64].

33 In Mrzljak the appellant was convicted of two counts of sexual penetration. The issue at trial was consent or honest and reasonable mistake as to consent. The complainant was intellectually impaired. The appellant was a Bosnian immigrant with limited understanding of English. The appellant was also intellectually impaired. The Crown contended that intellectual impairment was relevant to the element of honesty but not to the element of reasonableness which was objective and adjudged by reference to the reasonable person, relying on Daniels. Holmes J identified the question in issue in the following terms:

" ... the question here is whether the section provides an excuse from criminal responsibility where the mistaken belief is one which is honest and which would have been held by a reasonable person; or whether it applies where the mistake is honest and the belief is one held by the accused on reasonable grounds. It is clear that a requirement that a belief be on reasonable grounds does not equate to a requirement that a reasonable person would have held it."

34 Holmes J concluded that what had to be considered was "the reasonableness of an accused's belief based on the circumstances as he perceived them to be", an approach she labelled as consistent with that of Burt CJ in G J Coles. She concluded that the appellant's intellectual impairment and language difficulties were relevant to the reasonableness of his belief. Williams JA agreed with Holmes J.

35 McMurdo P disagreed with the majority on the question of the relevance of the appellant's intellectual impairment. The President concluded that a natural mental infirmity under s 27 of the Queensland Code could not be considered in determining whether an honest but mistaken belief is also a reasonable belief because s 27 covered the field. However, the President also rejected the reasonable person test for mistake. She said (at 315):

" ... s. 24 Criminal Code requires that a mistaken belief in the existence of any state of things be not only honest but also reasonable. This requires a consideration of whether there were reasonable grounds for the belief, not what a reasonable person would have believed ... The terms of s. 24(1) require both a subjectively honest and an objectively reasonable mistaken belief. It is clear, for example, that self-induced intoxication cannot turn what would otherwise be an unreasonable belief into a reasonable one ... In any case, s. 28 Criminal Code is intended to cover the field for criminal acts committed by someone whose capacity to apprehend is affected by intoxication ... "

36 Section 28 of the Queensland Code is in the same terms as the section relating to intoxication (also s 28) in the Western Australian Code. Williams JA agreed that self-induced intoxication would not be a relevant factor in determining whether a belief was honest and reasonable for the purposes of s 24 because s 28 was intended to cover the field. Holmes J does not state a position on the relevance of intoxication to mistake. The view that voluntary intoxication is not a relevant factor in supporting (as distinct from negativing) the reasonableness of an accused's mistaken belief is consistent with the English and Canadian authorities which expressly acknowledge that the position is heavily influenced by public policy considerations. The English and Canadian authorities are discussed by K L Campbell, "Intoxicated Mistakes" (1989) 32(1) Criminal Law Quarterly 110.

37 The cases on self-defence are of some assistance. The High Court in Viro v The Queen [1978] HCA 9; (1978) 141 CLR 88 considered the common law of self-defence which requires that an accused reasonably believed that an unlawful attack which threatened him with death or grievous bodily harm was being or was about to be made upon him. As to what is meant by "reasonably believed", Mason J said (at 146):

"By the expression 'reasonably believed' is meant, not what a reasonable man would have believed, but what the accused himself might reasonably believe in all the circumstances in which he found himself."

38 On this test, reasonableness is ordinarily assessed having regard to the personal characteristics or attributes of the particular accused (Conlon (1993) 69 A Crim R 92 at 99 per Hunt CJ; cf Oblach v The Queen [2005] NSWCCA 440; (2005) 65 NSWLR 75).

39 The Tasmanian Court of Criminal Appeal in McCullough v The Queen [1982] Tas R 43 held that intoxication was not relevant to whether an accused's belief was held on reasonable grounds when considering the Tasmanian statutory defence of self-defence. The relevant section of the Tasmanian Criminal Code Act 1924 justified death or grievous bodily harm where an accused:

" ... acts under a reasonable apprehension that his assailant will cause death or grievous bodily harm to him, and if he believes on reasonable grounds that he cannot otherwise preserve himself therefrom."

40 Although the Court accepted that the test was whether it was reasonable for the accused in all his then circumstances to hold the relevant apprehension, it concluded it would be incongruous and wrong to contemplate the proposition that a person's exercise of judgment might be unreasonable if he was sober, but reasonable because he was drunk. This decision was not followed by Hunt CJ in Conlon who concluded that intoxication is relevant in determining whether an accused acted in self-defence at common law.

41 A wholly objective test is what a hypothetical reasonable or ordinary person would have believed: Stingel. The Court in Stingel considered the statutory defence of provocation in the Tasmanian Code which referred to a wrongful act or insult of such a nature "as to be sufficient to deprive an ordinary person of the power of self control ... ". The High Court noted that the "ordinary person", sometimes called the "reasonable person", provided an objective standard and continued (at 327):

"Subject to a qualification in relation to age ... the extent of the power of self-control of that hypothetical ordinary person is unaffected by the personal characteristics or attributes of the particular accused. It will, however, be affected by contemporary conditions and attitudes ... "

42 The wholly objective hypothetical ordinary or reasonable person test clearly has no application to s 24 of the Code. If that is the test approved in Daniels, in my respectful opinion Daniels is wrong in that respect. However, the trial Judge in this case, as in BRK, did not apply the hypothetical ordinary or reasonable person test. He applied a hybrid test. First some necessary preliminaries.

43 For there to be an operative mistake under s 24, an accused must have acted under an actual belief in the existence of a state of things (subjective element) and the accused's belief must be reasonable (mixed element). The focus in this case is on the mixed element. The mixed element is not wholly objective; reasonableness is not to be adjudged by the standard of the hypothetical ordinary or reasonable person. The mixed element is a combination of subjective and objective aspects. The requirement that the belief be reasonable imports an objective standard. The subjective aspect is that the reasonableness is to be judged by reference to the personal attributes and characteristics of the accused that are capable of affecting his or her appreciation or perception of the circumstances in which he or she found himself or herself. However, the ambit of what constitutes the personal attributes and circumstances of a particular accused has not to my knowledge been identified or exhaustively enumerated. It covers matters over which an accused has no control such as age (maturity), gender, ethnicity, as well as physical, intellectual and other disabilities. This list does not purport to be exhaustive.

44 However, I am persuaded by the line of authorities that exclude intoxication, whether by reason of alcohol or drugs, as a relevant factor in supporting (rather than negativing) reasonableness under s 24 of the Code. There are obvious public policy considerations supporting that outcome. Moreover, the notions of reasonableness and alcohol or drug-induced impairment are in my view contradictory. There is oblique support for this view in Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572. The applicant in that case was convicted of dangerous driving causing death. He had fallen asleep at the wheel. The High Court said it was open to the jury to find that the applicant honestly and reasonably believed that, in all the circumstances, it was safe to drive. The Court noted that there was little in the evidence to support a finding that the applicant had reason to believe he was tired. In that regard, the Court referred to the sleep he had had prior to the accident, the time he had been driving before the accident and the fact that "[t]here was no evidence before the jury that he consumed any alcohol or drugs". The absence of alcohol or drugs was used as an indicator of the reasonableness of the applicant's actual belief. This approach accords with common sense. Self-induced impairment by alcohol or drugs can only be a negative or at best neutral factor in assessing whether the appellant's belief was reasonable. That is, reasonableness is not to be assessed by reference to the perception or appreciation of an alcohol or drug impaired accused. In view of this conclusion and the fact that neither party addressed the question whether s 28 of the Code covered the field in relation to intoxication, I do not propose to deal with that matter.

45 Even if, contrary to my view, reasonableness is assessed by reference to the standard of an intoxicated accused, there was little in the way of specific evidence of the quantities of alcohol and drugs consumed by the appellant and no evidence that his level of intoxication had any material impact on his perception or appreciation of the objective facts relevant to whether or not the complainant had given her consent. Accordingly, no specific direction would have been required.

46 Further, a person's values, whether they be informed by cultural, religious or other influences, are not part of a person's characteristics or attributes for the purpose of assessing the reasonableness of an accused's belief. For example, values resulting in extreme views as to the appropriate mode of dress for women, from which inferences about consent are purportedly drawn, cannot positively affect or inform the reasonableness of an accused's belief. Values do not impact on the capacity to perceive or appreciate primary objective facts or the capacity to process that information. In any event, reasonableness must be judged in the light of generally accepted community standards and attitudes.

47 What emerges from this discussion is that not everything about a particular accused is relevant in considering whether or not that accused's belief is reasonable. The reference to the reasonable and ordinary person in the formula used by the trial Judges in this case and BRK is in recognition of that fact. The formula purports to exhaustively identify the personal characteristics and attributes of an accused that are relevant and exclude other matters that by implication are irrelevant by resort to the reasonable or ordinary person. However, there is a danger in that approach because it is not specifically adapted to the relevant facts of each case and may exclude relevant matters to which the jury ought to have regard or include irrelevant matters. The formula is falsely premised on the assumption that all potentially relevant personal characteristics or attributes are enumerated. Further, the references to the reasonable or ordinary man are unhelpful. The formula should not in my view be used. The direction on mistake should be appropriate and adapted to the facts of each case. Often there will be no need to give directions as to the way in which a jury should make a judgment about the reasonableness of an accused's belief.

48 However, the formula used by the trial Judge in this case is patently not the hypothetical ordinary or reasonable man the subject of the wholly objective test. In addition, it was not suggested the appellant had any relevant personal attributes or characteristics, other than those listed by the trial Judge, that affected his perception or appreciation of the objective circumstances in which he found himself. That is, the appellant had no particular characteristics or attributes which took him outside the standard of the reasonable man with the attributes expressly identified. Accordingly, there is no material error in the direction that would give rise to a miscarriage of justice. I would dismiss ground 1.

49 Ordinarily, the telling of a lie merely affects the credit of the witness who tells it. However, a lie told by an accused may go further and, in limited circumstances, amount to conduct that is inconsistent with innocence and amount to an implied admission of guilt. A lie of this character is described as an "Edwards lie", being a reference to the decision of the High Court in Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193. The appellant contends that there were no lies told by him that were capable of constituting an Edwards lie.

50 The State case was that the appellant's statements to R and the complainant in the telephone conversations on 13 March 2004 to the effect that the person who performed oral sex on the complainant must have been Peter were deliberate lies evidencing a consciousness of guilt.

51 The relevant evidence is as follows. The telephone conversation between the appellant and R was lengthy. R was asked what the appellant said. His evidence was as follows:

"What the hell is going on? I said, 'You know exactly what the hell is going on.' Exactly the same as what I'd said at the hotel, exactly what [the complainant] had told me.

What was his response this time?---He completely denied it.

What did he say?---'It wasn't me. It must have been somebody else.' I said, 'Richard, there is no chance it could have been somebody else. I was in that spa for 15 minutes. Who the hell would have been in our hotel room inside that 15 minutes ... '

Did he answer you?---He did.

What did he say?---He said, 'It must have been Peter.' I said, 'Where the hell did Peter come from.' ...

...

Had you seen [Peter] at all that night, not in the apartment?---He was at the Under Sea club [in Subiaco].

After he said - he said, 'It must have been Peter'?---Yes.

Did you respond to that?---I said, 'How the hell can you justify it being Peter?' 'Peter came by and dropped off some more stuff,' meaning

Only what he said, not what he meant?---'Dropped off some more stuff.' I said, 'So in that time he's gone into my girlfriend's bed and gone down on my girlfriend. Is that what you're saying ... "

52 The appellant confirmed his denial to R that he had performed oral sex on the complainant and said there was no reference to Peter in his conversation with R.

53 The complainant's evidence as to the content of her telephone conversation with the appellant later that night was as follows:

"Can you tell us what was said in that telephone conversation?---I can't remember exactly how it started but Richard was saying that it wasn't him, that it was Pete, that Pete came back.

Do you know who Pete was?---I'd met him once before.

...

Richard was telling you that?---It was Pete.

It was Pete?---It was Pete that, you know, and that he would - to find out that it was really him, that he would get Pete into a room and he would video record him, or not video - videotape him admitting that it was him that did it, and I said to him, 'There's no need for you to do that because I saw it was you. Don't bother with Pete because it was you who did it. I saw you.'"

54 The appellant's evidence concerning his conversation with the complainant was as follows:

"I asked her what was going on. She said to me, 'Well [R] knows what happened. I told [R] what happened,' and I said, 'What's wrong?' and she said, 'Well, I didn't really want to say anything to him. I'm confused. I'm sorry for what I did. I didn't really want to - I shouldn't have done what I did with you,' and

Did you discuss Peter? Was there a reference to Peter in that conversation?---Yes. What happened is, [the complainant] said to me - she said, '[R]'s asked me to keep the underwear. He wants DNA off the underwear because he wants to prove that it was you,' and then I said to her when she was talking about taking me to the police - I said to her, 'I've got friend that's going through a similar thing. I know of someone who's going through a similar thing'. Then I brought up Peter's name."

55 In cross-examination the appellant admitted that he said to the complainant "[w]hy didn't you just say it was Peter instead of saying it was me? Then it probably wouldn't have been a problem".

56 The only alleged lie on which the trial Judge gave an Edwards direction related to the possible involvement of Peter as the person who performed oral sex on the complainant.

57 Before the trial Judge gave his summing up, there was discussion with counsel in the absence of the jury concerning an Edwards direction. The point taken in the appeal was not raised before the trial Judge although there was an objection on a different ground. The lie identified and relied on by the State was not the accused's denial that he performed the act but rather that the act was performed or possibly performed by Peter. That was the lie identified by the trial Judge in his Edwards direction to the jury.

58 After referring to the relevant evidence, including the conflict in the evidence relating to what was said in relation to Peter, the trial Judge continued his direction as follows:

"So what [the appellant] says is he denies that he ever said that it was Peter that did it or that he thought it might be Peter that did it. He says he didn't discuss Peter at all with [R] in the morning and the name of Peter only came up in the conversation with [the complainant] in the context of his having an acquaintance who was in a similar situation.

Ladies and gentlemen, I direct you as follows in relation to this particular factual issue and what you can do with it. First of all it's for you to determine whether what Mr - sorry. It's for you to determine whether [R] and [the complainant's] evidence on this is to be accepted. That's the first thing. You have to decide that.

It's for you to decide if what he said to them was a lie; that is, if he said what [the complainant] and [R] said he said, whether he was telling the truth about - sorry, whether they're telling the truth about those conversations and if so, whether what he said about this person Peter's possible involvement in the events in the bedroom was a lie."

59 The trial Judge then proceeded to give the balance of the direction in accordance with Edwards.

60 The appellant's denial of having performed the physical act the subject of count 1 was falsified by his admissions at trial. If the jury found that the appellant had made the statements to R and the complainant concerning the role, or possible role, of Peter those statements were also falsified by the evidence. The evidence established that there was no reasonable factual foundation for the fact or possibility of Peter having committed either offence.

61 The appellant contended that a disputed statement made to a complainant is incapable of being the foundation for an Edwards lie because it involves circularity of reasoning. That is, it is first necessary to be satisfied beyond reasonable doubt of the complainant's evidence and thus the appellant's guilt before finding it was a lie which could give rise to a consciousness of guilt. Although the same complaint cannot apply to R's evidence, the appellant contended R was not independent of the complainant.

62 In support of the claim that the alleged lie to the complainant is incapable of being an Edwards lie, the appellant relied on Edwards, Mercer (1993) 67 A Crim R 91 and Zheng (1995) 83 A Crim R 572.

63 In Edwards a prisoner was charged with procuring another prisoner to commit an act of gross indecency on him. The prosecution case was founded on the evidence of the complainant who said that while he and several other prisoners were being transported in a van they had beaten him, and he had agreed to oral sex with the accused in return for his promise of protection from further beatings. The accused gave evidence denying the offence and denied anything but a vague general knowledge of violence and threats against the complainant from other prisoners. During cross-examination the accused admitted to some greater knowledge of what had taken place between the complainant and other prisoners. The Judge warned the jury that it was dangerous to convict on the uncorroborated evidence of the complainant but told them that they could regard the lies told by the accused on oath as corroboration if certain requirements were met. Those requirements were outlined by the High Court in Edwards. They are that (1) the lie must be deliberate, (2) relate to a material issue and (3) be explicable only on the basis that the truth would implicate the accused in the offence with which he is charged. The majority rejected an argument that requirements (2) and (3) involved circular reasoning; that is, in order to satisfy those requirements the jury must conclude that the accused was guilty before it could use the telling of a lie by an accused as evidence against him. The majority said (at 210):

"But in truth there is no circularity of the kind suggested. It is convenient to confine ourselves to the requirement that there be a consciousness of guilt, but the same analysis is applicable to the requirement that the lie relate to a material issue. Although guilt must ultimately be proved beyond all reasonable doubt, an alleged admission constituted by the telling of a lie may be considered together with the other evidence and for that purpose does not have to be proved to any particular standard of proof. It may be considered together with the other evidence which as a whole must establish guilt beyond reasonable doubt if the accused is to be convicted. If the lie said to constitute the admission is the only evidence against the accused or is an indispensable link in a chain of evidence necessary to prove guilt, then the lie and its character as an admission against interest must be proved beyond reasonable doubt before the jury may conclude that the accused is guilty. But ordinarily a lie will form part of the body of evidence to be considered by the jury in reaching their conclusion according to the required standard of proof. The jury do not have to conclude that the accused is guilty beyond reasonable doubt in order to accept that a lie told by him exhibits a consciousness of guilt. They may accept that evidence without applying any particular standard of proof and conclude that, when they consider it together with the other evidence, the accused is or is not guilty beyond reasonable doubt." (Footnotes omitted)

64 If the lies are being used to meet the requirements of corroboration, there is a fourth requirement described in the majority judgment (at 211) in the following terms:

"If the telling of a lie by an accused is relied upon, not merely to strengthen the prosecution case, but as corroboration of some other evidence, the untruthfulness of the relevant statement must be established otherwise than through the evidence of the witness whose evidence is to be corroborated. If a witness required to be corroborated is believed in preference to the accused and this alone establishes the lie on the part of the accused, reliance upon the lie for corroboration would amount to the witness corroborating himself. That is a contradiction in terms."

65 For evidence to be corroborative, it must be independent evidence that implicates the accused, that is, which confirms in some material particular not only the evidence that the crime had been committed but also that the accused committed it. The evidence must be extraneous to and independent of the witness who requires corroboration.

66 A corroboration warning in relation to the complainant's evidence was not required in this case: Evidence Act 1906 (WA), s 50. Nor did the trial Judge direct the jury that corroboration was desirable and that the lies were capable of corroborating the complainant's evidence. Thus, the case against the appellant was that the specified lies were probative of his guilt short of being corroborative. Green v The Queen [1999] HCA 13; (1999) 73 ALJR 575 is an example of the operation of the fourth requirement. The appellant and R were charged with conspiracy to murder C. R pleaded guilty and gave evidence on behalf of the Crown. There were a number of matters on which the evidence of the appellant and R conflicted. One matter concerned the reason the appellant paid $16,000 into a racing syndicate of which R was the manager. R stated that the payment was for the purpose of paying the contract killer. The appellant stated the payment was for the purpose of investing in the syndicate. If reliance was placed on the evidence of R to conclude that the statements made by the appellant to police as to the purpose of the payment were untrue, the lie was not capable of corroborating the evidence of R.

67 Mercer is a similar case. The appellant was convicted of two counts of indecently assaulting two young girls. The Judge gave a corroboration warning and defined what was meant by corroboration. In particular, he directed the jury that "[c]orroboration can even come by you deciding that the accused might have told you a lie about something which you consider to be relevant". Nothing further was said as to which lies could amount to corroboration. One of the conflicts in the evidence was between the evidence of the complainants and that of the appellant as to whether he had indecently assaulted them. The Court said that a false denial by the accused of the truth of the complainant's evidence cannot itself amount to corroboration of that evidence. Hunt CJ said (at 98):

"Where, however, the lies of the accused upon which the Crowns relies are his denials of the complainant's evidence, those lies cannot be used in order to assist the tribunal of fact to determine whether the complainant's evidence is to be accepted: ... That is because the jury must first be satisfied that what the appellant has said is a lie. They cannot be satisfied of that fact until they have been satisfied that the evidence of the complainant is true. The mere fact that the jury may prefer the evidence of the complainant to that of the accused is not of itself something which can be treated by the jury as corroboration of the complainant's evidence: ... If the jury has already accepted that the complainant's evidence is truthful, they might conclude that the accused must therefore be lying, but by that stage such a conclusion is of no use in determining whether her evidence should be accepted because it has necessarily already been accepted. To suggest that the false denial corroborates that evidence is a circular argument."

68 Mere disbelief of an accused's denial that he committed the offence in question cannot be used as evidence of consciousness of guilt because it does not prove the positive (ie, that the offence was committed): Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507. For the same reason, mere disbelief of a denial by an accused does not provide corroborative evidence of a complainant's evidence that the offence was committed. However, Mercer is not authority for the proposition that all denials of the commission of an offence are incapable of being an Edwards lie. The focus is really on situations where proof of the falsity of the relevant denial depends on acceptance of the complainant's evidence of the accused's conduct the subject of the charges. On the other hand, an out of court denial of the commission of the physical element of an offence (sexual penetration) that is falsified by an accused's admission at trial of sexual penetration is capable of being an Edwards lie (R v Houda [1999] NSWCCA 372).

69 In Zheng, the appellant was charged with three counts of supplying not less than a large commercial quantity of heroin. It was an essential part of the Crown case that the jury accept it was the appellant who, on two separate occasions in a carpark, received a plastic bag containing heroin from another person and placed it in the boot of a car. The only evidence of those facts was from various police officers who observed the appellant's conduct in the carpark. In an unsworn statement, the appellant explained his presence in the carpark by saying he had only been there cleaning cars and had spoken casually to another person with whom he had no prior association. The Crown contended that if the jury accepted the evidence of the police officers then they would be satisfied that the appellant was telling lies when he said he was only in the carpark cleaning cars and that they were Edwards lies. The Court held that they were not capable of being Edwards lies. Hunt CJ (with whom Smart and Studdert JJ agreed) said (at 577):

" ... the appellant's lies as to what he did in the carpark could not logically be established without first reasoning that the appellant had in fact done in the carpark what the Crown's witnesses said he did, where their evidence was the only evidence that he so conducted himself. This circular process of reasoning was necessarily erroneous in relation to the second and third counts [concerning the events in the carpark], where that was the only conduct concerning the appellant which the jury had to consider."

70 Zheng is distinguishable because reliance was placed on the evidence of the Crown witnesses which established the offence to also establish that the appellant had lied. In this case the jury had to reject the appellant's evidence of what he said in his telephone discussions with R and the complainant and accept the complainant's and R's evidence of what was said before the question of an Edwards lie arose for consideration. If the jury accepted the evidence of R and the complainant on this issue, the lies told by the appellant as to what he said are not relied on as Edwards lies. The then proven statements of the appellant that the person who performed oral sex on the complainant was or might have been Peter are the Edwards lies. The falsity of the Edwards lies does not depend on accepting the complainant's evidence or that of R. The Edwards lies were falsified by the accused's admission at trial of sexual penetration.

71 The complainant's evidence of what the appellant said to her many hours after the alleged offences were committed can logically be separated from the complainant's evidence as to the conduct complained of the subject of the convictions. The acceptance of the complainant's evidence of what the appellant said on the telephone is not dependent upon acceptance of the complainant's evidence of the offences. Further, the State did not rely upon the Edwards lies to corroborate the complainant's evidence as a whole. There is no relevant circularity of reasoning. That being the case, if the jury accepted beyond reasonable doubt the complainant's and R's evidence on what the appellant said in the telephone conversations, the lies relied on were capable of

being probative of the appellant's guilt and were Edwards lies. I would dismiss ground 2 and the appeal.

Aubertin v The State of Western Australia [2006] WASCA 229

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Judgment (127 paragraphs)

Aubertin v The State of Western Australia [2006] WASCA 229 (7 November 2006)

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Legislation Cited (1)

Cases Cited (9)