Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525

Eliassen v Traffic Board (1994) 12 WAR 524

Grant v R (1975) 11 ALR 503

HG v The Queen [1999] HCA 2; (1999) 197 CLR 414

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

M v The Queen [1994] HCA 63; (1994) 181 CLR 487

MacPherson v The Queen [1981] HCA 46; (1981) 147 CLR 512

Milentis v The Queen, unreported; CCA SCt of WA; Library No 980716; 9 December 1998

Nestorov v The Queen [1999] WASCA 303

Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316

Quach v The Queen [1999] WASCA 210

R v Anderson (1997) 92 A Crim R 348

R v Bellissimo (1996) 84 A Crim R 465

R v Burns [1975] VicRp 25; [1975] VR 241

R v Cox (1996) 85 A Crim R 178

R v Darwell (1997) 94 A Crim R 35

R v Konstandopoulos [1998] 4 VR 381

R v Kotzmann [1999] VSCA 27; [1999] 2 VR 123

R v Laz [1998] 1 VR 453

R v Renzella [1997] 2 VR 88

R v Votano [2000] WASCA 144

R v Zheng (1995) 83 A Crim R 572

Thompson v The Queen (1992) 8 WAR 387

Tsagaris v The Queen, unreported; CCA SCt of WA; Library No 980721; 14 December 1998

1 KENNEDY J: I have had the benefit of reading in draft the reasons to be published by Wallwork J, with which I am in agreement. The authorities cited by his Honour clearly require the allowing of this appeal and the ordering of a new trial.

2 Although his Honour, in directing the jury as to the suggested lies being capable of leading to an inference of guilt against the applicant, referred to the need for the jury to accept the testimony of the police officers and not to entertain any reasonable doubt about that testimony, this was said in a quite different context from his Honour's directions regarding the manner in which they should approach the alleged confession. A specific direction was required to the effect that the jury should not act upon the confession unless satisfied that it was truthful and accurate.

3 Considerable care needs to be taken by Crown prosecutors before determining to maintain that an alleged lie told by an accused person can be used as the basis for an inference that the accused knew that the truth would implicate him in the commission of the offence. In this case, the Crown prosecutor rightly decided against arguing that the suggested lie was capable of bearing that character and, in directing the jury as he did on this point, the learned trial Judge fell into error.

4 WALLWORK J: On 23 February 2000, the applicant was convicted of three offences. The first was that on 12 June 1996 at Mount Helena he had had in his possession methylampetamine with intent to sell or supply it to another. The second was that at the same time and place he had had in his possession heroin with intent to sell or supply it to another.

5 There was a third charge which had alleged that the applicant had had cocaine in his possession with intent to sell or supply it to another, but on that charge the jury convicted the applicant of the alternate charge of simple possession of cocaine.

6 The applicant now appeals against the three convictions and against the sentences which were imposed upon him for the offences.

7 The charges against the applicant arose out of a raid on 12 June 1996 on premises where the appellant was living in Elliott Road, Mount Helena. On that occasion quantities of the three different drugs were found on the premises. The appellant was later interviewed on video by police officers.

8 The Crown case at the trial was partly that in the video interview the applicant had in effect, admitted his guilt and had correctly identified each of the drugs and had admitted possession of them. It was conceded for the applicant that he had made the admissions on which the Crown relied to prove its case. However the applicant gave evidence and his counsel cross-examined witnesses, on the basis that he had made a false confession to the police on the video. He said he had made the admissions on the video in order to obtain bail. He said that the police officers had suggested to him that the drugs belonged to a friend of his. He also said that the police officers had told him what the quantities of the drugs were.

9 The first ground argued on the appeal was that the learned trial Judge had been required to direct the jury in clear terms that before they could convict the applicant, they had to be satisfied that the alleged confessional statements which were relied upon by the prosecution, were truthful and accurate. It was submitted that at no stage in his direction had the learned trial Judge done that. It was submitted that the learned Judge had dealt with the confessional evidence by summarising the respective cases of the Crown and the applicant; that his Honour had not given a direction that the jury must be satisfied that the statements alleged to have been made by the applicant had been made and that they were true and constituted a truthful and accurate account of his involvement in the alleged offences.

10 In Burns v the Queen [1975] HCA 21; (1975) 132 CLR 258 at 261, Barwick CJ, Gibbs J and Mason J said:

"It is clear and elementary that once a confessional statement has been admitted into evidence its weight and probative value are matters for the jury. It is for the jury to determine whether the alleged confession was made and whether it was true in whole or in part. Unless the jury are satisfied that so much of a confession as tends to show the guilt of the accused is true they cannot treat it as a proof of guilt. ... The nature of the direction necessary to be given properly to instruct the jury as to the use of evidence of an alleged confession must depend on all the circumstances of the case ... In such a case as the present, where the accused person alleges that the confession which he is said to have made was a complete concoction, a reasonable jury, once satisfied that the confession was made, might readily be satisfied also that it was true. In such a case the absence of a specific warning to the jury that they should not act upon the confession unless they were satisfied of its truth might be of less significance than in a case where it was not in issue that the statement was made, but it was claimed that it was untrue."

11 In the present case the defence was that the statements had been made on the video but they were not true and were made for the purpose of the applicant obtaining bail.

12 In Pereira (1985) 16 A Crim R 292 at 298, Kelly SPJ, Williams and Dowsett JJ said:

"But, it must also be said that the learned trial judge did not give a full and correct direction to the jury as to their approach to the alleged confessional evidence. He did tell the jury, quite correctly, that it would be dangerous for them to convict the appellant on this count in the absence 'of your accepting beyond reasonable doubt the confessional material'. With respect to the learned trial judge, he did not clearly and adequately direct the jury that they could not use the alleged admissions against the appellant unless they were satisfied not only that they were made but also that they were truthful and accurate (see Burns [1975] HCA 21; (1975) 132 CLR 258 at 260-261). This Court has, in a number of cases, held that failure to give such a direction where conviction could rest upon confessional evidence is such a serious error as alone to justify quashing the conviction."

13 Reliance was also placed for the applicant upon R v D'Orta-ekenaike (1998) 2 VR 140 at 147 where Winneke P said:

"In a case where the Crown was contending that the applicant's plea of guilty at the lower court was conclusive evidence of his guilt, including the challenged issue of his state of mind, it was the judge's obligation to give the jury directions, carrying with them the full authority of his office, as to how they should approach such a significant issue. Like in every other case where an alleged confession of guilt has been challenged, his Honour, in my view, was bound to instruct the jury in the circumstances that, before they could use the evidence of the guilty plea as conclusive evidence of the applicant's guilt, they had to be satisfied beyond a reasonable doubt that such a plea was, and was intended to be, a true acknowledgment of the applicant's guilt of the crime charged; and that if, having regard to the evidence, they concluded that it was possible that he had entered the plea, not because of a belief in his guilt, but because he believed that he would receive a suspended or more lenient sentence, then they should discard the plea of guilty from their consideration."

"Because the evidence of the plea of guilty was such a potent piece of evidence operating adversely to the applicant, the failure to give such a direction, in my view, has exposed the applicant to a risk of a substantial miscarriage of justice, a risk which cannot be saved by the operation of the proviso to section 568(1) of the Crimes Act."

15 In this case it was said that the circumstances were similar; that whereas in R v D'Orta-ekenaike the appellant had pleaded guilty, in this case the applicant had made an alleged confessional statement.

16 Reliance was also placed on R v Robertson (1998) 4 VR 30 where it had been contended that the applicant had said to the complainant that "he would plead guilty" to her allegations unless he was "advised by his solicitor to do otherwise." In his record of interview in that case the applicant had denied that he had made any such admission.

"The evidence of the complainant, if accepted, was potentially very damaging to the accused and the fact that the Crown invited the jury to use it as an admission of guilt of the offences charged required the learned Judge to give careful instructions to the jury as to how they could use it. The jury should have been told they could only use such evidence against the applicant first, if they were satisfied beyond reasonable doubt that the applicant said what the complainant alleged and, secondly, if they were similarly satisfied that the applicant intended such statement to be a true acknowledgment of his guilt of the matters charged: Burns v R [1975] HCA 21; (1975) 132 CLR 258 at 261; R v D'Orta-ekenaike (1998) 2 VR 140."

18 It is the fact that the learned trial Judge in this case did not give a direction in accordance with the above authorities. His Honour discussed the confessional material in summarising the evidence and the respective cases. In my view, this ground of appeal has been established.

19 The second substantial ground of appeal relied upon by the applicant is that in this case it is said that the learned trial Judge gave a direction in accord with Edwards v R [1993] HCA 63; (1993) 178 CLR 193 with reference to the evidence which the applicant had given before the jury.

20 It was submitted that there had been real prejudice to the applicant in giving an Edwards' direction concerning his evidence before the jury, because an Edwards' direction was inappropriate where it was alleged that an accused was giving evidence in a criminal trial which was not true.

21 A part of the learned Judge's direction on this question was:

"It would be, in this case - if you find that he has - for example, you have come to the conclusion that the accused has lied, when he has said that the record of interview was false in every respect, then clearly that is a material lie because it goes to a strong element of the Crown case, namely, an admission or confession. So it's a material lie, if you find it to be a lie and you could on one view of the evidence find the proof of that lie in the evidence of the police officers. In other words, if you accept their testimony and don't entertain any reasonable doubt about it, that this was a full and frank confession given by a person fully apprised of his guilt, then you will have no difficulty in accepting that it [the evidence] was a lie and then you might use that lie to draw an inference of guilt against the accused person. There are very particular rules that you must bring into play in relation to lies told by an accused person." (My words in brackets),

22 It was submitted that for the learned Judge to give an Edwards' direction where an Edwards' issue did not arise, and where it had not been dealt with on that basis by the prosecution, was likely to prejudice the fair trial of an accused person. Reliance was placed on R v Zoneff (2000) 172 ALR 1 for that proposition.

23 In Zoneff, Gleeson CJ, Gaudron, Gummow and Callinan JJ said at par 16:

"As a general rule, however, an Edwards type direction should only be given if the prosecution contends that a lie is evidence of guilt, in the sense that it was told because, in the language of Deane, Dawson and Gaudron JJ in Edwards "The accused knew that the truth ... would implicate him in [the commission of] the offence" and if, in fact, the lie in question is capable of bearing that character. (The words in italics are ours and, for the sake of clarity, should be included in the statement of principle). Moreover, if there is a risk of confusion or doubt as to the way in which the prosecution put its case, the trial judge should inquire of the prosecution whether it contends that lies may constitute evidence of consciousness of guilt and, if so, he or she should require identification of the lie or lies in issue and the basis on which they are said to be capable of implicating the accused in the commission of the offence charged."

24 In the present case the prosecutor at the conclusion of the summing up, advised the learned trial Judge that he had not been suggesting that there was any lie of an Edwards type and said he was leaving the matter simply to matters of credit. He said that the Crown was not relying on the evidence of the accused being given "through a reliance of guilt." When referring to the evidence of the applicant in the witness box he said: "Clearly, we say it is [lies], but not beyond credit, not as in the category of Edwards." (My word in brackets).

25 In the decision in Zoneff at par 18 their Honours said:

"This was an unusual case. The prosecutor did not, in cross-examination, in terms or in our view, by implication, suggest that any answer given was a lie, told out of a consciousness of guilt (a phrase we use for convenience)."

"Such a direction here could have had the effect of raising an issue or issues upon which the parties were not joined, and highlighting the issues of credibility so as to give them an undeserved prominence in the jury's mind to the prejudice of the appellant. Because the Crown did not put, either in cross-examination, or any submission at the trial, that there was any material capable as being regarded as a lie stemming from a consciousness of guilt, the direction of the majority in the Court of Criminal Appeal quoted and which is set out above, should not have been given."

"For the trial judge here to refer to, indeed raise, on his own initiative in the way his Honour did, the possibility of a consciousness of guilt without any identification of relevant

answers, and without any further explanation, was to invite the jury to infer that the alleged lies might be indicative of a consciousness of guilt, a proposition for which the prosecution has not contended, and does not now contend. The only remaining question is whether, because the Crown case was a strong case, there has been no substantial miscarriage of justice. On this matter, we find ourselves in agreement with Olsson J that there should be a retrial. In a case of false pretences there is obviously much scope for misunderstanding by a jury with respect to the issues of dishonesty. We cannot be satisfied that a relevant misunderstanding may not have infected the minds of the jury on the basis of the direction which was given. We would allow the appeal and in the place of orders made by the Court of Criminal Appeal order that the appeal to the .... Court be allowed, the convictions on counts 2 to 7 of the information be quashed and that there be a retrial."

28 In my view, this second ground of appeal has been established.

29 In my opinion, because of the two abovementioned errors in this case, the convictions should be set aside and there should be a retrial.

30 It is not necessary to deal with the other grounds of appeal or the application for leave to appeal against sentence.

31 MILLER J: I have had the opportunity of reading the reasons for judgment of Wallwork J. I agree with his Honour's reasons and I agree that the convictions of the appellant should be set aside and that there should be an order that he be re-tried on the indictment he faced.