Fletcher v R [1999] WASCA 18

Darwell v The Queen, unreported; CCA SCt of WA; Library No 970220; 9 April 1997

R v Bellisimo (1996) 84 A Crim R 465

R v Birks (1990) 19 NSWLR 677

R v Dao, unreported; CCA SCt of WA; Library No 990015; 22 January 1999

R v Dickson, unreported; CCA SCt of WA; Library No 990203; 23 April 1999

R v GP (1997) 18 WAR 196; (1997) 93 A Crim R 35 1

R v Liddington (1997) 18 WAR 394

R v McNamara [1987] VicRp 68; [1987] VR 855

R v Peterson [1984] WAR 329

R v Towers, unreported; SCt of NSW; CCA No 60359 of 1991; 7 June 1993

R v Wassa (1987) 45 SASR 297

R v Weng Keong Chan (1989) 38 A Crim R 337

R v Williams [1987] 2 Qd R 777

Sadaraka v The Queen (1981) 4 A Crim R 221

Woon v The Queen [1964] HCA 23; (1964) 109 CLR 529

1 KENNEDY J: I have had the benefit of reading in draft the reasons to be published by Ipp J. I am in agreement with those reasons and with the orders which his Honour proposes.

2 IPP J: This is an application for leave to appeal against conviction and sentence. In view of the conclusion to which I have come in regard to the application for leave to appeal against conviction, I shall not deal with the application concerning the sentence imposed on the applicant.

3 The applicant was convicted in the District Court of one count of supplying a quantity of amphetamine to another.

4 The case against the applicant at trial was based largely on police evidence, coupled with a video interview with the applicant. In summary the relevant facts were as follows. On 7 August 1996, in the afternoon, an undercover officer, described as "Operative 22", went to the house of one Joe Luca. He told Luca that he wished to purchase an ounce of amphetamine. Operative 22 then drove Luca to a telephone booth in Morley where Luca made a telephone call. Operative 22 and Luca returned to Luca's house and waited for a response to the call. There was none, however, and Operative 22 drove Luca to the telephone booth again where he made a further call. At about the same time the applicant was seen to be speaking on a telephone. Luca and Operative 22 then drove to a shopping centre in Morley and Luca parked his vehicle in a carpark there. Operative 22 gave Luca $1,200 in cash and Luca got out of the vehicle with the money on his person. A short time later the applicant drove her vehicle into the carpark, accompanied by a friend. Luca got into the back seat of the applicant's vehicle and closed the door. Not long thereafter, he emerged from the applicant's vehicle and returned to the vehicle in which Operative 22 was sitting. Luca handed to Operative 22 a package wrapped in white tissue paper inside a plastic bag. The applicant's vehicle drove away from the carpark. The plastic bag was found to contain two small bags containing beige powder. There was also a small piece of white cardboard with the writing "3.3 short" on it. Operative 22 weighed the packets of powder and found the weight to be 24.9 grams. An ounce is 28.349 grams. The drug was accordingly 3.449 grams short of one ounce. The beige powder was later found to be a mixture containing approximately 3% amphetamine.

5 The Crown also tendered a video recorded interview between the police and the applicant. The interview had been severely edited at the request of counsel for the applicant. The transcript of the interview was some 31 pages in length, and about 17 pages were deleted in the editing process.

6 Included in the deleted part were at least 10 replies by the applicant to the effect that she did not wish to give an answer to the question she was being asked. The following exchange contains typical replies of this kind, as well as one which was not excised from the transcript.

"When was the last time you saw Joe? --- Don't know

You don't know? Did you see him today? --- I'm not going to say.

You're not going to say? Okay. And what's the reason that you're not going to say? --- Cause I don't want to.

You don't want to? Do you think it might get you into trouble? -

The first question and answer (that is, "when was the last time you saw Joe? --- Don't know") were not deleted from the transcript and were presented to the jury. The remainder was excised in the editing process.

7 Other answers that were edited out of the transcript indicated that, generally, the applicant did not wish to give any answers at all to the questions that she was being asked by the police. The following exchange is an example of this:

"So, what's Joe look like then? --- I don't wish to say anything really."

"Well when you see Joe, I know you say you're not too sure, how would you get in contact with each other, or do you just bump into each other. Were you --- No I don't want to say anything."

"That's a bit touchy for you as well is it? --- No, but I don't want to say anything, that, I feel that I'd better be off saying nothing.

No. That's fine. --- And then I'll talk to a lawyer."

8 Notwithstanding these replies, the questioning continued. The applicant was asked, "Have you ever given anything to Joe?" She replied, "I don't wish to say". The applicant proceeded to answer several questions by saying "I don't know" or "I can't remember". The following exchange then occurred.

"So when you say you don't know or you can't remember - Mmm Hmm

Because that's a little confusing for us when you are saying you don't know --- That's what I mean, that I don't want to answer, I don't, I don't, want to say anything. Or I don't know."

9 The interview continued with the applicant answering some questions and saying that she did not know, in regard to others. Eventually, she repeated that she did not wish to answer, generally. This appeared from the following:

"Do you really care whether you sold speed or not? --- I don't want to answer. I'm not sure, what I should be, I'm not sure. No I don't want to answer.

You're not sure, you don't know. Well Michelle is there anything at all that you want to say about this whole matter? --- No I just want, I don't want to say anything until I talk to someone."

10 The aforegoing exchanges (apart from the applicant's answer that she did not know the last time she saw "Joe") were all, at the request of her counsel, edited out of the transcript. Counsel for the applicant in the appeal was not counsel at the trial.

11 The part of the transcript that was tendered as evidence nevertheless contained material that was capable of reflecting adversely on the applicant's credibility.

12 Firstly, a considerable portion of the interview concerned the applicant's financial circumstances. Strictly speaking, this testimony was not relevant as there was no charge involving any allegation that the applicant had profited from the sale of amphetamines. However, it was capable of giving rise to the inference that the applicant had derived income from the supply of prohibited drugs.

13 Secondly, although the transcript recorded the statement that the applicant did not know "a person called Joe Luca", it also recorded statements by her that she did not know a person who lived at an address that was, apparently, Luca's address, and that she did know a person called "Joe", who was a friend. Further, according to the transcript (as mentioned above), she said that she did not know when she last saw Joe. These extracts from the transcript were capable of suggesting to the jury that the applicant was being evasive, or prevaricating, or lying about her knowledge of and friendship with Luca. These replies may have been seen in a better light (from the applicant's point of view) had her explanation, given later in the course of the interview, that she had said "I don't know" because she did not want to answer, been before the jury. But this explanation was removed from the transcript at the request of the applicant's counsel.

14 Thirdly, statements that the applicant made about the phrase "3.3 short" that was found in the plastic bag she handed to Luca were also capable of leading to an inference that the applicant was being evasive, or prevaricating or lying. These statements appear from the following extract from the transcript:

"What do you see in this bag? --- Ahh, a piece of paper, tissues, and, I don't know what that is, what's that?

I don't know, it looks like little plastic bags to me --- Mmm Hmm. And plastic bags.

Is it your handwriting: --- Don't know. Have you ever written 3.3 short? --- I don't, know.

There was some suggestion at the trial that the words "I don't, know" were incorrectly transcribed and the applicant's reply correctly understood was, "I don't, no". In cross-examination, however, the applicant conceded that she had answered "I don't know" when asked whether she had ever written "3.3 short".

15 The applicant admitted that she had handed over the package to Luca. She denied, however, that she knew that the package contained prohibited drugs. She testified that her boyfriend had asked her to deliver the package and she did not know what the package contained. She denied that she wrote the note "3.3 short". The applicant's knowledge of what was in the package was therefore critical to the result of the trial.

16 The applicant raised several grounds of appeal. I shall refer only to two of them. The first (and I shall refer to it as "the first ground") was that the learned trial Judge "erred in admitting the edited video record of interview into evidence" when the applicant "had repeatedly in the course of the video (in parts edited out) stated that she did not wish to say anything but the interviewing police persisted in questioning her". The second (to which I shall refer as "the second ground") was that:

"[The learned trial Judge] erred in failing to direct the jury that they could not use the answers of the applicant in the video interview as an implied admission of guilty unless they were satisfied that any lie or evasion was deliberate, related to a material issue, and must be explicable only on the basis that the truth would implicate the applicant in the offence with which she was charged."

17 Any consideration of the first ground has to be seen in the context of the approach to the transcript of the video interview taken by counsel for the applicant at the trial.

18 At the inception of the trial counsel for the applicant told the learned Judge that the video interview had been edited in accordance with his objection. Nevertheless, he maintained his objection to the use of the video interview, as a whole, but only on the basis of relevance. Counsel for the prosecution then submitted that the interview was relevant as it showed the applicant being evasive and revealing a consciousness of guilt. Counsel for the applicant submitted, however, that there were "simply no admissions" in the interview. No question of voluntariness was raised. As the learned Judge noted, the sole question for her was "does the remainder [of the interview, after editing] contain any relevant matter so as to make the interview admissible?" She answered this question in the affirmative. In this respect, the learned Judge was entirely correct.

19 The first ground goes essentially to the question of voluntariness. The problem is that, because the issue of voluntariness was never raised before the learned Judge, no voir dire was heard. Thus, any decision in regard to voluntariness would now have to be taken without there being any findings as to the applicant's understanding of her right to silence and her capacity or ability to have persisted in her refusal to answer the questions put to her by the police. The decision not to raise the issue of voluntariness seems to have been deliberately made by counsel for the applicant, albeit that voluntariness was expressly referred to by the learned Judge. In the circumstances, it is difficult to contend that the learned Judge should have held that the entire video interview was inadmissible. Nevertheless, it has to be said that it is readily arguable that the continuing questioning by the police, notwithstanding the applicant's intimation that she did not wish to say anything, was unfair. I would have thought at least, that there came a point in the interview when, in all fairness, the police should have repeated the usual caution to the applicant and informed her that she need not answer any questions if she did not wish to do so: see generally in this regard the comments of Deane J in his reasons for judgment in Pollard v The Queen [1992] HCA 69; (1992) 176 CLR 177 at 200-211.

20 In view, however, of the conclusions to which I have come in regard to the second ground of appeal, it is not necessary to express any final conclusion in regard to the first ground. It is to be noted, nevertheless, that the issues that arise in regard to the first ground are of significance when considering the second ground. The applicant's reluctance to answer the questions put to her by the police, her uncertainty as to whether she should give answers or not, and her explanation as to why she had answered many questions "I don't know" or "I can't remember", are highly relevant to the question whether an inference of guilt should be drawn from her answers to questions in the video interview. It was very much a live issue at the trial as to whether the applicant gave answers of this kind because she was guilty of the offence charged, or whether she gave those answers because she was uncertain of her rights, and was of a mind to exercise her right of silence and not commit herself in any way: cf Petty v The Queen [1991] HCA 34; (1991) 173 CLR 95.

21 Although the video interview contained no direct admissions, the contention of the prosecution that, by inference, it revealed a guilty mind on the part of the applicant, was of considerable importance at the trial. The very nature of the applicant's defence meant that this was a critical issue. In opening the prosecution case to the jury, counsel for the Crown said:

"The Crown's case is that she is prevaricating on the video and when she answered some of the questions put to her by the police but when it came to questions involving this transaction she claimed either not to know or refused to answer the questions."

The "claim not to know" goes to the heart of the matter. The question was: did the applicant claim not to know because she knew she was guilty and was lying, or did she claim not to know in an attempt to exercise her right to silence? This was a matter to be put squarely to the jury.

22 The learned Judge commenced this part of her charge by saying that the video interview was "an important part of the evidence in this case". This was stressed by her Honour saying:

"What you are seeing in there ... is the way the accused answered relevant questions on that day about four or five weeks after the alleged supply of the amphetamines. So you can see it's an important early recording ... of her reaction to the questions at that time."

I pause to repeat that while the video was indeed "an important early recording", it was not a complete recording, and explanatory material had - through no fault of the trial Judge - been removed by the applicant's own counsel. This meant that a careful and detailed direction needed to be given to the jury, explaining the defence case in regard to the several answers "I don't know" and "I can't remember" given by the applicant.

23 Her Honour proceeded to say, "If you find she made any admissions on there, and that's a matter for your judgment, you will want to look at some of her answers." As an example of an answer that was capable of being an admission the learned Judge referred to the paper on which had been written "3.3 short" and the statements by the applicant that she did not know whether this was in her handwriting and she did not know whether she had ever written "3.3 short". Admissions of this kind are admissions by inference. This should have been explained to the jury and an appropriate direction should have been given in regard to the drawing of inferences. Although, at a later stage, her Honour did give the standard direction in regard to the drawing of inferences, this was not related back to the video interview. The learned Judge said, generally:

"You cannot draw an inference adverse to the accused, that is, against her, unless it is the only reasonable inference open on the facts you find",

In my opinion, the jury should have been told, expressly, that this rule applied to inferring consciousness of guilt on the bases alleged by the prosecution.

24 Her Honour proceeded as follows with her charge to the jury:

"You can look [at the video interview], as I say, either in her favour or as admissions. Another way to use the video interview - and it is important - is to compare it with what she said in court.

She has explained that she didn't really know what it was about. She was concerned at what she was going to tell them and worried, so you take those into account. The Crown suggests that the answer she gave shows some sort of consciousness of guilt, that she recognised she had done something wrong and well knew that she had, and that's a matter for you to look at and to see the way she answered those questions and make your judgment about that."

In my opinion, the only basis on which an inference of consciousness of guilt could be drawn from the applicant's replies in the video interview was through lies on her part. That is to say, the jury would have had to find that, in saying "I don't know" or "I don't remember" to particular identified questions, the applicant was lying, and was doing so because she was guilty of the offence with which she was charged. No direction in this regard was given.

25 Towards the end of her charge, the learned Judge returned to the video interview and said:

"Ladies and gentlemen, you consider all of the circumstances as you find them to be. You can also take account of whatever you make of the accused's video interview and the answer she gave to the police on that occasion so far as they assist you as to her knowledge on the day."

"In looking at the video interview the defence asks you to put yourself in the accused's position, not knowing what was going on, and suggested that she acted consistently with an innocent person being interviewed some four weeks after the offence."

Her Honour then said, in summarising the Crown case to the jury:

"The Crown particularly asks you to look at the accused on video and suggests she is very sly and very different in her approach to the police than she was in her answers in court. The Crown suggests that her answers about the man Joe on video are not honest answers and they show a guilty mind, that she well knew she was in drug dealing when she passed a parcel to Joe."

All the above-mentioned remarks were a continuation of the learned Judge's overall approach, which was to tell the jury in general terms that they could use the interview in whatever way they wished: they could use it to infer guilt, or they could find that whatever was said was said innocently.

26 In Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193 Deane, Dawson and Gaudron JJ said at 210-211:

"A bare direction that consciousness of guilty is required does not provide sufficient guidance as to what matters indicate its presence. Unexplained, such a direction allows the jury to decide, in the light of all the evidence, that a lie was told with a consciousness of guilt and then to use that finding to corroborate some part of the evidence that led to the finding of a consciousness of guilt.

A lie can constitute an admission against interest only if it is concerned with some circumstance or event connected with the offence (ie it relates to a material issue) and if it was told by the accused in circumstances in which the explanation for the lie is that he knew that the truth would implicate him in the offence. Thus, in any case where a lie is relied upon to prove guilt, the lie should be precisely identified, as should the circumstances and events that are said to indicate that it constitutes an admission against interest. And the jury should be instructed that they may take the lie into account only if they are satisfied, having regard to those circumstances and events, that it reveals a knowledge of the offence or some aspect of it and that it was told because the accused knew that the truth of the matter about which he lied would implicate him in the offence, or, as was said in Reg v Lucas (Ruth) (1981) QB 720, because of 'a realisation of guilt and a fear of the truth'.

Moreover, the jury should be instructed that there may be reasons for the telling of a lie apart from the realisation of guilt. ... The jury should be told that, if they accept that a reason of that kind is the explanation for the lie, they cannot regard it as an admission. It should be recognised that there is a risk that, if the jury are invited to consider a lie told by an accused, they will reason that he lied simply because he is guilty unless they are appropriately instructed with respect to these matters. And in many cases where there appears to be a departure from the truth it may not be possible to say that a deliberate lie has been told."

27 In my opinion the mere references by the learned Judge to "consciousness of guilt" provided insufficient guidance to the jury. The only material identified by the learned Judge as being potentially capable of leading to an inference of guilt were the applicant's answers "about the man Joe" (which the Crown suggested were "very sly and very different in her approach to the police than she was in her answers in court"), and her answers "I don't know" in regard to the questions concerning the note on which was written "3.3 short". In the context of the generalised reference to "consciousness of guilt", an adequate direction, specifying the evidence which was capable of constituting lies, was not given. Further, the jury were not instructed that they could take lies into account only if they were satisfied that the lies revealed a knowledge of the offence or some aspect of it, and that the lies were told because the applicant knew that the truth would implicate her or because of a realisation of guilt. The jury was not instructed that there may be reasons for the telling of lies apart from the realisation of guilt. It was significant that nothing was said to the jury about the material that was excised from the transcript. The jury were not told that the applicant had proffered an innocent explanation for those of her answers which the Crown alleged were lies, and - if they accepted that explanation - they should not regard the answers as admissions of guilt by her.

28 I consider that the omission to direct the jury adequately in regard to the matters to which I have referred was a defect in the trial that gave rise to a loss of a fair chance of an acquittal in accordance with the tests set out in Mraz v The Queen [1955] HCA 59; (1955) 93 CLR 493 (at 541). Accordingly, I would grant the application for leave to appeal against conviction, uphold the appeal, set aside the conviction, and order a retrial.

29 WALLWORK J: I agree with the reasons for judgment of Ipp J. There is nothing I wish to add.