Criminal law - Appeal against conviction - Conviction after trial - With intent to harm doing an act causing bodily harm - Alleged miscarriage of justice - Right to silence - Whether miscarriage of justice caused by trial judge's failure to direct jury on the accused person's election not to testify or adduce evidence at trial - Alleged express error - Proviso - Edwards direction - Whether trial judge erred by directing the jury a lie told was relevant to guilt

Criminal Appeals Act 2004 (WA) s 30(4)

Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50

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

Hedgeland v The State of Western Australia [2013] WASCA 97

OKS v The State of Western Australia [2019] HCA 10

RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620

Sanchez v The Queen [2009] NSWCCA 171; (2009) 196 A Crim R 472

Zoneff v The Queen [2000] HCA 28; (2000) 200 CLR 34

1. This is an appeal against conviction. The appellant, Lance Henare Clark and Jacob Leslie Roberts were jointly charged on indictment in the District Court with one offence, that on 5 December 2015, at Eglinton, each of them, with intent to harm, did an act as a result of which bodily harm was caused to Ross Terrence Darby, contrary to s 304(2) of the Criminal Code.
2. The appellant and the two co-accused stood trial on this charge before Glancy DCJ and a jury. On 24 May 2018, they were each found guilty as charged and duly convicted.[1]
3. On 19 July 2018, the appellant was sentenced to 4 years 11 months' immediate imprisonment with eligibility for parole.[2]
4. There are two grounds of appeal. Ground 1 alleges a miscarriage of justice as a result of the learned trial judge's failure to direct the jury as to the appellant's right not to testify or adduce evidence at his trial. Leave to appeal has been granted in respect of this ground. Ground 2 alleges that her Honour erred by directing the jury that a lie allegedly told by the appellant to the police in his electronically-recorded interview (ERI) was a lie relevant to his guilt, as opposed to one which could only be used to assess the credit of statements he made in the ERI. The question of leave to appeal in respect of this ground was referred to the hearing of the appeal.[3]
5. For the reasons which follow, we would uphold ground 1, but not ground 2. In our opinion, the appeal should be allowed and the conviction set aside. We would order a retrial.

1. The following factual background is taken from her Honour's summing up. It was effectively accepted at the hearing of the appeal that her Honour's summary of the cases and the evidence was accurate.
2. The appellant and Mr Clark were associated with the Rebels motorcycle club (the Rebels). The victim, Mr Darby, was a user and dealer of drugs. He apparently owed money to the Rebels.[4]
3. The State case was that, on 5 December 2015, Mr Darby and his then partner, Latoya Jo Hassett, were lured to a location on Pipidinny Road, Eglinton, by their friend and sometimes drug dealer, Mr Roberts, on the pretext that he would there supply them with drugs.[5]
4. The State case was that soon after they arrived and parked their vehicle on a bend along Pipidinny Road, a silver-grey Ford driven by the appellant arrived, carrying two passengers, one of whom was Mr Clark. The identity of the other man is unknown.[6]
5. One of the men put a baseball bat through the window of Mr Darby's vehicle. Mr Darby and Ms Hassett endeavoured to escape in his vehicle. However, Mr Roberts had blocked the road with his vehicle. He then reversed into Mr Darby's car, forcing it off the road and into a tree branch, where it became stuck.[7]
6. Mr Darby and Ms Hassett attempted to flee the scene. Mr Darby was assaulted by Mr Clark and the other assailant with a baseball bat and a tree branch, as a result of which he sustained injuries that amounted to bodily harm. Meanwhile, Ms Hassett got into Mr Roberts' car. She used his mobile telephone ostensibly to call for an ambulance, but instead she attempted to call the police. She was prevented from doing so by Mr Roberts.[8]
7. Mr Roberts then drove Ms Hassett to the first street in Yanchep.[9] From there she ran to a friend's house and called emergency services.[10]
8. The State's case was that each man did an act, the result of which was that bodily harm was caused to Mr Darby. Mr Roberts' acts were said to have been luring Mr Darby to the attack, blocking his escape with his car and reversing his vehicle into Mr Darby's car, forcing it off the road and preventing his escape. The appellant's act was driving his silver-grey Ford to Pipidinny Road, carrying Mr Clark and the unknown man, for the purpose of assaulting Mr Darby. Mr Clark's act was the actual assault upon Mr Darby.[11]
9. The State's case relied, in large part, upon the eyewitness accounts of Mr Darby and Ms Hassett as to what occurred and to establish the identities of the appellant and the co-accused. Both Mr Darby and Ms Hassett said that they had previously met the appellant.[12] The State adduced evidence from each of them of digiboard identification procedures during which they separately identified the appellant as one of the offenders.[13]
10. On 7 December 2015, the appellant was interviewed by Senior Constable Busby and Detective Sergeant Thomas of the West Australian Police.[14] An edited version of this interview was tendered at trial as part of the State's case.[15] In the ERI, the appellant denied any involvement in the assault upon Mr Darby.[16] The appellant told police that, at the time the offence was committed, he was in his tattoo parlour (which was some 15 minutes by car away from the scene of the assault), looking at the parlour's Facebook account while waiting for a friend of his, known as Weejay, to pick him up and take him home. The appellant told the interviewing officers that Weejay indeed picked him up and that, on his way home, they stopped at KFC in Ocean Keys to buy some food. The appellant also told the police that, when he got home, he put some music on and fell asleep.[17]
11. In order to falsify the appellant's claimed alibi, the State adduced evidence of a conversation between the appellant and Ms Beryl McIvor on 16 December 2015 while the appellant was in Hakea Prison on remand. The conversation was recorded and the recording was played to the jury and admitted as an exhibit.[18] In the course of the conversation, the appellant asked Ms McIvor whether the police had seized his computer from his business premises. Upon being told that the police had seized his computer he responded, 'Yep, so they know I wasn't at work. Fuck it. They're just playing games at the moment'.[19]
12. There was no issue, or no real issue at trial, that:[20]

(b) as a result of the assault he suffered bodily harm; and

(c) whoever was involved in the assault upon Mr Darby, that person did so with the intention of causing him harm.

1. The key element in issue in the appellant's case was the element of identity. As her Honour put it in her summing up, the key issue was whether the State had satisfied the jury beyond reasonable doubt that the appellant had driven the grey silver Ford to the location at Pipidinny Road, carrying Mr Clark and the unknown assailant.[21]
2. The appellant did not give or adduce evidence in his defence.[22] His defence was that he had an alibi, based upon the statements he made in his ERI in which he said that at the time of the offence he was at his business premises.[23] At trial, defence counsel pointed to some CCTV vision taken from his work premises at a time which he said showed that the appellant could not have been present at the scene of the assault on Mr Darby.[24] In addition, the appellant alleged that the identification evidence of Mr Darby and Ms Hassett was dishonest and unreliable.[25]
3. The State case relied on the identification evidence of Mr Darby and Ms Hassett.[26] It was also said by the State that the appellant told a deliberate lie to the police in his ERI when he said that, at the time of the offence, he was at his business. The State said that the appellant's alibi was falsified by the appellant himself in the conversation with Ms McIvor on 16 December 2015. The State alleged that, having been informed by Ms McIvor that the police had seized his computer, he realised that they would discover that he had not been using his Facebook account at the relevant time and that he was not at work. The State alleged that the appellant's lie was deliberate and was made out of a consciousness of guilt, rather than merely going to the appellant's credit.[27]

There was a miscarriage of justice when her Honour failed to direct the jury as to the appellant's right to not testify or adduce evidence in his defence at trial;

Particulars:

1.1 Her Honour failed to direct the jury that although the appellant participated in an electronic record of interview he still retained a right to remain silent at his trial.

1. Her Honour gave orthodox and correct directions to the jury as to the presumption of innocence and the onus and standard of proof.[28]
2. After directing the jury as to the drawing of inferences,[29] she then gave the jury, as she put it, 'some specific directions about the evidence of each of the accused men'.[30] As to Mr Roberts and Mr Clark she said:[31]

So I want to tell you something about Mr Roberts and Mr Clark.

As you heard Mr Rodgers and Mr Utting tell you, Mr Roberts and Mr Clark each elected not to give or adduce any evidence in this trial and it was their right not to give evidence. The fact that Mr Roberts and Mr Clark each exercised their right to silence and did not give evidence is not evidence against them and cannot be used in any way against them.

And [sic] accused may but does not have to give evidence or call evidence in a trial. Whether an accused person gives evidence is a matter of choice for that person and it does not mean that the accused person has an onus of proof or has to prove that he is innocent.

No adverse inference can or should be drawn against either Mr Roberts or Mr Clark for his exercising his right not to give evidence. In other words, choosing not to give evidence does not amount to any kind of admission on the part of Mr Roberts or Mr Clark. The fact that they did not give evidence proves nothing one way or another against them.

You cannot use the fact that they did not give evidence in this trial to fill any weaknesses or gaps in the evidence led by the State if you feel that there are gaps or weaknesses.

You must not assume that because an accused person did not give evidence that this in some way adds to the case against that accused person. It does not. It cannot be considered at all when deciding whether the State has proved its case beyond reasonable doubt. It cannot change the fact that the State has the burden to prove the guilt of each [of] Mr Roberts and Mr Clark beyond reasonable doubt.

The question for you to consider on each charge is whether on all of the evidence before you the State has proved the charge against Mr Roberts and Mr Clark beyond reasonable doubt, and if you have a reasonable doubt as to whether Mr Roberts is guilty or not of the charge, then it is your duty to find him not guilty. Similarly, if you have a reasonable doubt as to whether Mr Clark is guilty or not guilty of the charge, then it is your duty to find him not guilty.

The right to silence would be meaningless if adverse inferences were drawn against a person who exercised that right.

1. Immediately thereafter, her Honour addressed the position of the appellant in these terms:[32]

Now, the position is a little different in relation to Mr Johnstone. Mr Johnstone did take part in a recorded interview and what he said in that interview is part of the evidence that you are to consider in this case in deciding whether or not the State has proved the charge against Mr Johnstone beyond reasonable doubt.

The edited copy of Mr Johnstone's interview was played to you during the course of the trial and the DVD of that interview is an exhibit and, in fact, exhibit 23, and you will therefore have the recording of that interview with you in the jury room and you have the facilities in the jury room to play that recording should you consider that to be useful to you.

During the course of the interview a number of questions were asked by police officers of Mr Johnstone, and as I have told you, the same reasoning applies here as you were told in relation to questions of a witness in the course of the trial by counsel. If Mr Johnstone did not agree or in some way accept the contents of a question that was asked of him by the police in the course of that interview, the question is not evidence against him. Statements, comments and questions of the police are not evidence.

The weight that you give to statements made during the interview by Mr Johnstone is entirely a matter for you as the judges of the facts. The assessment of the honesty, accuracy and reliability of the answers given by Mr Johnstone during the interview conducted with him is entirely a matter for you.

In his interview Mr Johnstone told the police he had been at his tattoo parlour at the time of the assault. It may be that you believe him. That's a matter for you. If you do believe him, then you would acquit Mr Johnstone of the offence.

If you do not accept that Mr Johnstone told the police and you reject that evidence, it does not follow automatically that you would convict the accused of the charge. The accused does not have to prove anything and the law is that you only deliver a guilty verdict if on all of the evidence the State has proved the charge beyond reasonable doubt.

1. It may immediately be noted that, while her Honour directed the jury concerning Mr Roberts' and Mr Clark's election not to give or adduce any evidence at trial, her Honour did not:

(a) observe that, like Mr Roberts and Mr Clark, the appellant had elected not to give or adduce any evidence in his trial; and

(b) expressly include the appellant in the directions that she gave concerning the effect of Mr Roberts and Mr Clark invoking their right to silence at trial.

1. Defence counsel took no exception to the directions we have referred to.

1. The following statements of law are uncontroversial.
2. The fundamental task of a trial judge is to ensure the fair trial of the accused. An incident of that fundamental task is that, in some cases, it will require the judge to warn a jury about how they should not reason.[33]
3. In Azzopardi v The Queen,[34] Gaudron, Gummow, Kirby and Hayne JJ said that by reason of the obligation of the prosecution to prove the guilt of an accused beyond reasonable doubt, the fact that an accused does not give evidence at trial is not, of itself, evidence against him or her, nor is it an admission of guilt and it cannot fill any gaps in the prosecution case or be used as a makeweight in considering whether the prosecution has proved the accusation beyond reasonable doubt.[35]
4. Their Honours went on to state that, because 'plainly' a jury may use an accused's silence in court to his or her detriment, it will almost always be desirable for a judge to warn the jury that an accused's silence in court: is not evidence against the accused; does not constitute an admission by the accused; may not be used to fill gaps in the evidence tendered by the prosecution and may not be used as a makeweight in assessing whether the prosecution has proved its case beyond reasonable doubt.[36]

1. The appellant submitted that, because of the risk that a jury may use the appellant's silence in court to his detriment, her Honour was obliged to instruct the jury, as she did with respect to Mr Roberts and Mr Clark, in accordance with the statement made by Gaudron, Gummow, Kirby and Hayne JJ in Azzopardi, set out above, in his case, and there was no reason for her not to do so.[37]
2. It was further submitted that the danger that the jury would use the appellant's silence at trial to his detriment was accentuated by the learned trial judge's different treatment of Mr Roberts and Mr Clark, on the one hand, and the appellant, on the other. The appellant contended that the absence of such a direction in the appellant's case may have left the jury with the impression that they may use the appellant's silence against him.[38]
3. It was submitted on behalf of the State that, when her Honour's summing up is read as a whole, it is inconceivable that the jury would not have applied the directions regarding the election not to testify or adduce evidence at trial, which were given in the context of Mr Roberts and Mr Clark equally to the appellant.[39]
4. In the State's written submissions, some emphasis was given to the fact that, after her Honour directed the jury in relation to the position of Mr Roberts and Mr Clark, she next dealt with the position of the appellant and prefaced her directions with the words '[n]ow, the position is a little different in relation to [the appellant]' (emphasis added). The State submitted that her Honour's use of the word 'little' emphasised that the difference between Mr Roberts and Mr Clark, on the one hand, and the appellant, on the other, was a matter of minor, rather than fundamental, distinction.[40] In oral submissions, counsel for the respondent suggested that, in context, her Honour's use of the phrase 'a little different' would have been understood by the jury as, in effect, adopting the directions that had been given in respect of the appellant's co-accused before drawing to the jury's attention that the appellant, unlike Mr Roberts and Mr Clark, had participated in the ERI and that the answers that the appellant had given in that interview were evidence in respect of the case against the appellant.[41]
5. Also in oral submissions, counsel for the State drew to the court's attention various passages in the trial transcript where her Honour emphasised to the jury panel and, indeed, the jury, the key principles of the presumption of innocence and the burden and standard of proof. It was submitted by the State that there was 'no reasonable risk that the jury would not have applied the orthodox directions about not giving or adducing evidence at trial equally to the appellant'.[42]
6. Finally, if ground 1 was made out, the State submitted that this court should apply the proviso in s 30(4) of the Criminal Appeals Act 2004 (WA) because no substantial miscarriage of justice has occurred.[43]

1. The appellant, like Mr Roberts and Mr Clark, elected not to testify or to adduce evidence at their trial.[44]
2. In accordance with the principles laid down in Azzopardi, ordinarily, whenever an accused invokes their right to silence, it is necessary for a trial judge to give directions to the jury to ensure that it does not impermissibly reason that the election to remain silent can be used against them. While there may be circumstances where such a direction is not required, such cases would be unusual, and the present case is not one of them.
3. Her Honour gave directions with respect to Mr Roberts and Mr Clark which were orthodox and correct. However, for the reasons given below, contrary to the submissions of the State, those directions were not expressed to apply to the appellant and, in our view, were likely to have been understood by the jury as applying to Mr Roberts and Mr Clark, and not to the appellant. At the very least, there was a real risk that the jury would have understood the direction in this way.
4. Her Honour told the jury that she intended to give 'specific directions about the evidence of each of the accused men'. Her Honour then proceeded to tell the jury 'about Mr Roberts and Mr Clark'. Her Honour gave directions concerning them and their election not to give or adduce any evidence at the trial. It is the case, as the State prosecutor pointed out in oral submissions,[45] that her Honour told the jury that 'an accused may, but does not have to, give evidence or call evidence at trial'; whether 'an accused' gives evidence is a matter of choice for that person and that the jury cannot assume that 'an accused [who does] not give evidence ... adds to the case against that accused person'. However, those statements were made in the context of the cases of Mr Roberts and Mr Clark. In that context, the expression 'an accused' would reasonably be taken to refer to one or other of Mr Roberts and Mr Clark. Similarly, considered in isolation, the last sentence from that part of her Honour's direction which is quoted at [23] above was not directed expressly to Mr Roberts and Mr Clark. However, it immediately followed her Honour's directions in relation to them, and preceded her Honour turning to deal with the appellant, and in our view would reasonably be taken to refer only to Mr Roberts and Mr Clark.
5. Given that a jury receives the trial judge's directions aurally, aural cues for the jury, which identify the matters with which the trial judge is dealing, have particular significance. Having told the jury that she would give some specific directions about each accused, then having expressly confined her directions (at [23] above) to Mr Roberts and Mr Clark, including directions as to their decision to invoke their right to silence, her Honour's statement (at [24] above) that 'Now, the position is a little different in relation to Mr Johnstone' is likely to have been understood by the jury as signalling that her Honour was commencing a discrete part of the direction, this time dealing specifically with the appellant. Thus, her Honour drew a distinction between Mr Roberts and Mr Clark, on the one hand, and the appellant, on the other. The point of difference between them, of course, is that the appellant took part in the ERI. Her Honour told the jury, correctly, that it could take into account what the appellant said to the police in that interview.
6. However, her Honour did not instruct the jury as to how it could deal with the appellant's election not to testify or adduce evidence at the trial. By failing to include the appellant in the directions that were given to the jury about Mr Roberts' and Mr Clark's election to remain silent, it left open to the jury the possibility that it may adopt an impermissible path of reasoning that allowed the appellant's silence to be used against him.
7. While it is true, as the State points out, that her Honour, both before and during her summing up, made it very clear to the jury that the accused was presumed innocent and that the onus of proof was on the State to prove the appellant's guilt beyond reasonable doubt, there is no substance in the submission that those directions were sufficient to obviate the risk that the jury might impermissibly reason that the appellant's invocation of the right to silence at trial could not be used against him.
8. Nor do we think there is any substance in the State's submission that her Honour's use of the phrase 'a little different' when referring to the position of the appellant would have reasonably been understood by the jury as conveying that the directions given by her Honour concerning Mr Roberts and Mr Clark also applied to the appellant, with the difference that the jury could take into account the statements made in the ERI. Bearing in mind the structure of her Honour's remarks, as outlined in [40] - [41] above, it is unlikely that a jury listening to the learned trial judge's directions for the first and only time would have appreciated the subtlety the State now wishes to attribute to this expression.
9. In the absence of a direction from the trial judge which specifically dealt with the appellant's election not to give evidence or adduce evidence at trial or which made clear that what her Honour had said concerning the right to silence, in relation to Mr Roberts and Mr Clark, applied equally to the appellant, there remains a perceptible risk that the jury could have reasoned that in the appellant's case, although not in the case of his co-accused, it could use the appellant's silence at trial against him. It follows that the appellant has suffered a miscarriage of justice and that ground 1 has been made out. While defence counsel at trial took no exception to her Honour's direction, her Honour was obliged, as a matter of law, to give the relevant direction. Counsel's failure is not a barrier to ground 1's success. Ground 1 has been made out.

1. For completeness, we note that, in argument, counsel for the respondent cited Sanchez v The Queen[46] to support the State's case. It is unnecessary to examine Sanchez. It is enough to say it has no bearing on the present case.

1. Contrary to the submissions of the State, the proviso cannot be applied in this case because it cannot be assumed that the misdirection had no effect upon the jury's verdict.[47] The absence of a direction designed to preclude an impermissible path of reasoning by the jury left open the possibility that the jury would have journeyed down that impermissible path. In such a circumstance, there is no room for the operation of the proviso. We are unable to conclude that no substantial miscarriage of justice has occurred.

Her Honour erred when, over objection, she determined to give an Edwards lie direction in relation to the contradicting evidence of the accused;

Particulars

1. The relevant lie went merely to credit and not to a consciousness of guilt.

1. The alleged lie the subject of this ground and the evidence said to have falsified it is set out at [15] - [16] of these reasons. In essence, the prosecution alleged that the appellant gave a false alibi to police in his ERI by saying that he could not have participated in the alleged offence because at the time he was at his tattoo parlour. The State's case at trial was that this lie was an 'Edwards lie',[48] that is, a lie told out of a consciousness of guilt. Defence counsel submitted that the alleged lie was not an Edwards lie, but rather a 'Zoneff lie',[49] that is, a lie which could only go to the jury's assessment of the appellant's credibility. Her Honour ruled, in substance, that it was open to the jury to conclude that the alleged lie was an Edwards lie and directed the jury accordingly.

1. The appellant's written submissions in support of this ground are essentially assertive.[50] At one point in the appellant's written submissions, it is said that 'the identified lie was not necessarily a link towards or evidence of a consciousness of guilt in relation to the offence.[51] In oral submissions, counsel submitted that it was unclear from the appellant's ERI whether, when he gave an account of his whereabouts, he was aware of when it was alleged that the offence had been committed.[52] It may immediately be observed that this submission was not made to the trial judge and is not reflected in the ground of appeal or the written submissions. It is enough to say, having regard to the relevant portions of the ERI,[53] that it has no substance.

1. The law relating to when an Edwards lie direction is required to be given is well settled and was stated by Buss JA in Hedgeland v The State of Western Australia.[54] We adopt his Honour's statement without repeating it.

1. In our opinion, the alleged lie was properly left to the jury as evidence of a consciousness of guilt; that is, that he told the lie because of a realisation of guilt and a fear of truth. The lie plainly related to a material issue at the trial, namely where the appellant was at the time of the commission of the alleged offence and revealed his knowledge of the offence. It was clearly falsified by the appellant's conversation with Ms McIvor.
2. Ground 2 has no reasonable prospect of success. Leave to appeal should be refused in relation to it.

1. Ground 1 has been made out. Ground 2 has no reasonable prospect of succeeding. The appeal must be allowed. A retrial must be ordered.
2. The orders we would make are as follows:
   1. Leave to appeal on ground 2 is refused.
   2. The appeal is allowed.
   3. The conviction is set aside.
   4. There shall be a retrial.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[12] ts 190, 280, 97 - 298, 301, 303 - 304, 359, 407, 433.

[13] ts 216, 220, 222 - 224, 419 - 420.

[16] Blue green AB 22 - 23, 75 - 78, 85 - 86; ERI ts 19 - 20, 72 - 75, 82 - 83.

[17] Blue green AB 23 - 24; ERI ts 20 - 21.

[25] Closing remarks ts 40 - 44; 50 - 52, 58.

[33] RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 [41].

[34] Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50.

[37] WAB 10; appellant's written submissions, pars 26 - 28; appeal ts 20.

[38] WAB 10; appellant's written submissions, pars 26 - 28; appeal ts 20.

[39] WAB 35; respondent's written submissions, par 12.

[40] WAB 34 - 35; respondent's written submissions, par 9.

[43] WAB 35 - 36; respondent's written submissions, pars 13 - 15; appeal ts 21 - 26.

[46] Sanchez v The Queen [2009] NSWCCA 171; (2009) 196 A Crim R 472.

[47] See OKS v The State of Western Australia [2019] HCA 10 [31].

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

[49] Zoneff v The Queen [2000] HCA 28; (2000) 200 CLR 34.

[50] WAB 13; appellant's written submissions pars 43 - 45.

[51] WAB 13; appellant's written submissions, par 43.

[53] Blue green AB 22, 72, 75 - 78, 81; ERI ts 19, 69, 72 - 75, 78.

[54] Hedgeland v The State of Western Australia [2013] WASCA 97 [80] - [87].