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[2012] NSWCCA 270
Court of Criminal Appeal (NSW)
2012-12-14
McClellan CJ, Latham J, Fullerton J, As Fullerton J, Clellan CJ
Original judgment source is linked above.
The application by the Crown for a consciousness of guilt direction 45Prior to the commencement of closing addresses the Crown prosecutor confirmed her intention to seek a direction from the trial judge that the appellants' "post-offence conduct", constituted in part by what was said to be the delay in going to police and complaining of being attacked, could be used by the jury as evidence that they were each conscious of their guilt of the offences charged. At that time the Crown also intended to rely upon the fact that the appellants had stayed away from their respective homes in the days after the incident, and their failure to seek medical treatment for their injuries, together with the fact of delay, as capable of amounting to a consciousness of guilt. 46The Crown's intention to rely on this body of evidence for that purpose was made clear earlier in the trial when defence counsel objected to the Crown leading evidence of the enquiries that police had made to locate the appellants in the days following the incident at Justin Ryan's house. Her Honour admitted that evidence, limited at that time to the creditworthiness of the accounts each of the appellants had given to police of their involvement in the events of the night and their conduct in the days that followed. It was not submitted on the appeal that the evidence was wrongly admitted for credit purposes. 47In the course of argument later in the trial as to whether a consciousness of guilt direction would be given and, if so, what components of the post offence conduct relied upon by the Crown were capable of being considered by the jury for that purpose, the trial judge noted that the fact that five days had elapsed before the appellants presented themselves at the police station was already in evidence. It was not only obvious from the chronology of events proved in the Crown case but each appellant had been offered the opportunity by the interviewing police to explain the delay (and each had given an explanation for it), without counsel submitting that the ERISPS should be edited to excise this line of questioning as undermining the appellants' right to silence. From that it might safely be assumed that counsel had apparently accepted that the fact of delay was relevant to the jury's assessment of whether what the appellants told police was a reasonably possible version of events. The only remaining question before closing addresses was whether the fact of delay (either alone or in combination with other post offence conduct) was also capable of supporting an adverse inference from which guilt might be inferred. 48During the course of argument on that question her Honour was referred to Petty & Maiden v R [1991] HCA 34; 173 CLR 95 and to what this Court observed in Sanchez v R [2009] NSWCCA 171; 196 A Crim R 472 as the limits of permissible comment on inconsistencies between an accused's account to police and the evidence given by an accused at trial. Defence counsel submitted that the consciousness of guilt direction sought by the Crown, based as it was upon the five day delay in the appellant giving his account to police, contravened the prohibition on a jury drawing an adverse inference from the exercise of the right of each of them during that period not to speak to police, whether to volunteer their accounts as innocent victims or to answer questions as suspects. 49Her Honour was not persuaded that to leave the issue of delay as consciousness of guilt infringed the appellants' right to silence when they had chosen to break their silence by participating in an ERISP. She distinguished the prohibition on drawing an inference from silence in Petty on the basis that it was "a completely different factual scenario" to the case she was considering where the appellants had broken their silence but not given evidence at trial. She was also satisfied that simply because the appellants had each proffered an explanation as to why they did not approach police earlier did not disentitle the Crown from seeking a consciousness of guilt direction. Her Honour held (and correctly) that those explanations were for the jury to weigh and consider in determining whether, with the directions she proposed to give, they would draw an inference of guilt. 50Her Honour ruled on the objection in the following way: I am with the Crown to the extent that she is entitled to have a consciousness of guilt direction but I would have thought that relates to the gap of five days. That is I think where the consciousness of guilt should relate. Other matters are matters for argument that the jury might think the failure to get medical attention was a relevant factor, but I don't understand it to be a consciousness of guilt argument. I would limit the consciousness of guilt to simply the gap [of five days] ... 51Despite a ruling in her favour, in the Crown's closing address she did not urge the jury to use delay to support an inference of guilt: ... What the Crown says in relation to those interviews are that the three accused have made up what is in their interviews and you will not accept it. On the accuseds' versions they would have you believe that they were victims of a serious assault by Steven Cuthbert and his cousins using shovels, poles, baseball bats. If that were the case you might think that they would have made a timely complaint about it. The fact is it took five days from immediately after the incident until they presented themselves at Mount Druitt Police Station at about 8.30pm. 52The Crown then referred to the efforts to locate the appellants during that time and said: Her Honour will give you directions of law just how you can use this conduct of the accused in that five day period. 53She took the jury through the ERISPs and referred to the evidence of Stacey Roach and Carina Archer, then submitted: And despite the three accused saying they were the victims of this assault, they don't seek medical attention, they don't report this vicious attack, which they say occurred with the use of a weapon, poles, whatever, including the damage to Arthur Humphries' car that he borrowed, they don't go back to their homes. These are all matters for you, the judges of the facts. 54In responding to the Crown address it is not surprising that defence counsel did not refer expressly to the issue of delay as capable of being used by the Crown as positive evidence of guilt and the need, in those circumstances, for the jury to approach the particular appellant's explanation for the delay with caution before drawing that inference. 55Counsel for Mark Humphries did not refer to the issue of delay at all. Counsel for Anthony Keuhne concentrated on where his client was before presenting to police as bearing upon his credit, the Crown having submitted that he told lies about his whereabouts. He also submitted that although there was no obligation on his client to report having been assaulted by people at the house he went to the police with his brother when he learned that police wanted to talk to them. 56Counsel for Arthur Humphries addressed what she said was the Crown's criticism of her client for not having sought medical attention and his delay in reporting the assault by submitting that he decided to wait for his mouth to heal before going to a dentist and, in any event, he was under no obligation to report the fact that he had been assaulted, or to speak to police at all about the events of the night. 57Notwithstanding the addresses of counsel, and without revisiting the question whether a consciousness of guilt direction was still called for, the trial judge directed the jury as follows: The next matter, members of the jury, is this topic of what has been referred to as consciousness of guilt. As you know, all the accused went to the police voluntarily at about 8.30pm on Wednesday 5 August and that as you know was almost five days after the alleged offence which as you also know, occurred just after midnight on 31 July. The Crown relies on that evidence as being capable of, and in fact supporting the Crown case, supporting the prosecution case. Because the Crown prosecutor argued that, that gap of some four plus days, was because each accused knew he was guilty of the offences. He was conscious of his guilt or he recognised his guilt of this offence or these offences in the case of Mark Humphries. (As noted above the Crown had not ultimately advanced that submission.) 58After referring to the explanation for the delay each appellant had given in his record of interview, her Honour continued: Again it is for you to decide what evidence you accept but before you use the evidence on which the Crown relies, that is, this gap of four to five days, as consciousness of guilt and as support for the Crown case, you must be satisfied that the reason the particular accused whose case you are then considering did not go to the police earlier, was a realisation of guilt and a fear of the truth. You must be satisfied that the evidence establishes that the reason for that delay was a consciousness of guilt of these specific offences charged. It is only if you are satisfied that the evidence points unequivocally to a consciousness of guilt of the offence or offences, and not some other offence or fear of being unjustly accused, or the reasons advanced by the accused in the interview that this evidence can be used, that is this evidence of the gap in time can be used by you in support of the Crown case. If you are satisfied that the evidence does point unequivocally to a consciousness of guilt, then you are able to use it in support of the Crown case. If you are not so satisfied, that is, if there is a reasonable possibility that the accused whose case you are then considering, delayed for the reason that he gave in the interview or reasons that he gave in the interview, or for some other reason, that is the fear of being unjustly accused, then you would put that evidence to one side, the evidence about the delay in going to the police and you do not use it in any way against the accused. In other words, you just put that piece of evidence to one side and go back in essence to the eye witnesses and the account of the incident of that night. 59Following a request for a further direction to emphasise the right to silence, the trial judge directed the jury as follows: Members of the jury, just going back to one matter you will recall in terms of when I talked to you about consciousness of guilt and the accused attending the police station on 5 August you will recall that was voluntarily done. Of course they were under no obligation to attend the police station on that day, nor in fact to speak to the police. But having spoken to the police, of course it is now evidence that you can consider. 60On the appeal it was submitted that although the trial judge directed the jury that the appellants were under no obligation to attend the police station or provide information to police, her direction that guilt could be inferred from their delay in volunteering their accounts was both logically inconsistent with the exercise of their right to silence up until that time and likely to be confusing given the way the parties had put their respective cases in closing addresses. The Crown submitted that the direction, properly analysed, was not an adverse comment about the appellants having failed to answer questions or provide information before they agreed to be interviewed by police (her Honour's directions on the appellants' right to silence being unambiguous) and that there was therefore no breach of the prohibition on comment for which Petty remains the seminal authority. Rather, so the Crown submitted, the focus of the direction was on the failure of the appellants to make a timely complaint as victims of an assault.
Was the direction an infringement of the right to silence? 61For the purposes of the appeal, I have not found it necessary to decide whether the consciousness of guilt direction given in this case had the effect of infringing the appellants' right to silence, and for that reason the direction should not have been given (the submission of defence counsel at trial and the approach taken by the appellants' counsel on the appeal). However, since I am of the view that the direction had that potential, I will outline in a summary way my reasons for coming to that view. 62Where it is said the right to silence has been infringed in the context of a criminal trial it is critical to identify with precision where and how that has occurred (RPS v R [2000] HCA 3; 199 CLR 620; 113 A Crim R 341 at [630]). Although I accept that the right to silence under consideration in this case does not fall squarely within the categories of immunity identified by Lord Mustill in R v Director of Serious Fraud Office; Ex parte Smith [1993] AC 1; [1992] 3 All ER 456 at [30]-[31] although it may fall within category six (referred to by McClellan CJ at CL in Jones v R [2005] NSWCCA 443 at [70]), it seems to me that the election by each appellant to give an account to police on 5 August following their arrest, and at that time to forego the immunity from being compelled to answer questions or provide information, must be coexistent with the unqualified right that they had not to speak to police or provide information until they decided otherwise. That being the case, it follows that to invite the jury to infer guilt from the appellants not presenting themselves to police for questioning earlier than 5 August, even with the knowledge that police wished to speak with them, is to invite the jury to infer guilt from their silence in contravention of the principle laid bare in Petty where Mason CJ, Deane, Toohey and McHugh JJ said: A person who believes on reasonable grounds that he or she is suspected of having been a party to an offence is entitled to remain silent when questioned or asked to supply information by any person in authority about the occurrence of an offence, the identity of the participants and the roles which they played. That is a fundamental rule of the common law which, subject to some specific statutory modifications, is applied in the administration of the criminal law in this country. An incident of that right of silence is that no adverse inference can be drawn against an accused person by reason of his or her failure to answer such questions or to provide such information. To draw such an adverse inference would be to erode the right of silence or to render it valueless... That incident of the right of silence means that, in a criminal trial, it should not be suggested, either by evidence led by the Crown or by questions asked or comments made by the trial judge or the Crown Prosecutor, that an accused's exercise of the right of silence may provide a basis for inferring a consciousness of guilt. Thus, to take an example, the Crown should not lead evidence that, when charged, the accused made no reply. Nor should it be suggested that previous silence about a defence raised at the trial provides a basis for inferring that the defence is a new invention or is rendered suspect or unacceptable. 63In Sanchez, Campbell JA (with whom Latham and Harrison JJ agreed) approved of the following extract from Jones and noted as follows: [54] An important qualification of the extent to which the "right of silence" prohibits comment at a trial upon failure of an accused to give his account of the facts at an earlier time is stated by McClellan CJ at CL in Jones at [75]: Of course, if the accused chooses to break his or her silence and give an explanation before trial which is inconsistent with an account given in evidence, the inconsistency may be used by the prosecution, both to attack the accused's credit, and as consciousness of guilt. [55] What is meant by "break his or her silence" here is that the accused, during official questioning, chooses not to exercise the third type of right of silence [in R v Director of Serious Fraud Office; Ex parte Smith, namely an immunity possessed by a suspect who is being interviewed by police not to answer questions], and in the course of answering the question gives an account that is inconsistent with his or her evidence at the trial. To similar effect is R v Reeves (1992) 29 NSWLR 109 at 111 per Mahoney JA, 114-115 per Hunt CJ at CL (with whom Badgery-Parker J agreed). 64It is true to say that the appellants "broke their silence" when they agreed to be interviewed following their arrest. However, the qualification on the prohibition on comment to which reference is made in the above extract did not come into play in this case because as the appellants did not give evidence at trial there was no issue of inconsistency which might have legitimately attracted adverse comment in the way suggested by McClellan CJ at CL in Jones.
Was the fact of delay capable of amounting to consciousness of guilt? 65Whether or not the consciousness of guilt direction had the effect of infringing the appellants' right to silence in this case, in my view the delay in attending at the police station was not capable of rationally supporting the inference of guilt for which the Crown contended and the direction under challenge should not have been given for that reason. 66In McKey v R [2012] NSWCCA 1 Latham J (with whom Whealy JA and Hislop J agreed) accepted at [26] that the legitimacy of the Crown's reliance upon inferences capable of being drawn from an accused's post offence conduct as amounting to a fear of the truth or a consciousness of guilt has long been recognised. Categories of so called "post offence conduct" typically include flight, lies, interference with evidence or witnesses, or other proven conduct of an accused. Although on the appeal the Crown was unable to point to a case where a delay in giving an account to police (not otherwise associated with evidence of flight or other potentially incriminating behaviour) was admitted as consciousness of guilt, reliance was placed upon McKey as exemplifying the principled approach that should be followed when the admission of evidence of consciousness of guilt is in issue, an approach which the Crown submitted was followed by the trial judge in this case. 67In McKey the issue was whether the accused's failure to robustly deny guilt when first confronted with an allegation of child abuse by the family of the complainant, and to "protest his innocence from the rooftops" thereafter, was relied upon by the Crown in such a way as to invite consciousness of guilt reasoning and not simply as a factor bearing upon his credibility as a witness. Her Honour was satisfied it did invite reasoning of that kind and that the trial miscarried, there being no adaptation of an Edwards direction given by the trial judge to guard against the jury drawing an unjustified inference adverse to the accused, (particularly where, the case being word on word, the jury might well have looked for evidence tending to support the allegation). As I read her Honour's judgment at [43], she did not express a concluded view that the conduct upon which the Crown relied in McKey, if properly analysed at trial in accordance with the approach of the High Court in Edwards, would have been admitted as evidence capable of constituting a consciousness of guilt of the offences charged. 68Her Honour did observe that where the Crown intends to rely upon an accused's post offence conduct as evidencing consciousness of guilt, the evidence must be capable of rationally supporting an inference of guilt of the crime charged before it is admitted for that purpose and, as part of that enquiry, the conduct must be identified by the Crown with precision and its capacity to constitute an implied admission of the offence charged made patent. 69I am satisfied that enquiry was not undertaken with sufficient rigour by the trial judge in the present case. The Crown did not identify with any clarity how the delay in presenting to police supported an inference of guilt (of each of the appellants of the offences charged) save as to submit that it was capable of revealing they had each concealed their guilt. The trial judge's directions were to the same effect. The circularity in that reasoning deprived the evidence of the essential requirement that the conduct under consideration, together with other circumstances and events, is capable of rationally supporting an inference of guilt. If the issue of delay in this case had that capacity it would follow that in every case where an accused, knowing or believing that they are suspected of having committed an offence, did not promptly give an exculpatory account to police, the Crown would be entitled to seek a consciousness of guilt direction. The absurdity of that proposition exposes the flaw in the Crown's argument at trial and the Crown's submissions on appeal. 70In this case, isolating the fact of delay as "post offence conduct", divorced from the related (and potentially more telling) fact that the appellants appeared to have been in each others' company for five days before going to police to give largely identical accounts of the incident, deprived the bare fact of delay of sufficient weight for the purpose which the Crown contended, that is, as positive evidence of guilt. I do not intend to suggest that even were those additional features of the appellants' post offence conduct taken into account by the trial judge, that the evidence would necessarily have attracted a consciousness of guilt direction. It is sufficient for present purposes that the fact of delay alone did not meet the test of admissibility.
The proviso 71The Crown submitted that even if the direction has resulted in a miscarriage of justice the proviso under s 6(1) of the Criminal Appeal Act should be applied since, on an independent review of the evidence properly admitted at trial, this Court would be satisfied, to the criminal standard, that the appellants' guilt had been proved. In this case, where the credibility of the Crown witnesses was under direct and sustained challenge (in part because of the police investigation which raised questions as to when and where the firearm was discharged and by whom), I find myself unable to reach the necessary degree of satisfaction that the appellants' guilt has been proved beyond reasonable doubt, even allowing for the fact of delay to negatively impact upon the credit worthiness of their accounts to police.
Should a retrial be ordered? 72The quashing of a conviction ordinarily attracts an order for a retrial subject always to the broad discretion conferred under s 8(1) of the Criminal Appeal Act as to whether, in any particular case, the interests of justice require a new trial (see Gilham v R [2012] NSWCCA 131 at [648]-[649] per McClellan CJ at CL). In this case, since Anthony Kuehne has served the non-parole period imposed following his conviction and Arthur Humphries is likely to be released to parole before any retrial could be convened, I am satisfied that there is no utility in ordering a new trial on the only count on the indictment with which these appellants were charged. 73Despite the fact that Mark Humphries' non-parole period does not expire until December 2014, I would not order that he be retried on either of the counts with which he was charged. Although the second count, which alleged that he discharged the firearm, was not dependent upon his participation in a joint criminal enterprise with his brothers, his joint possession of the gun with his brothers was particularised as a feature of aggravation in proof of the first count which the Crown did allege was committed as a joint criminal enterprise. In the somewhat unusual circumstances of this case, and despite the separate offending with which he was charged by reason of the allegation that he discharged the firearm (he jointly possessed with his brothers), to isolate him as one of three co-offenders, and to order that he be retried in isolation from his brothers on both counts, would be contrary to the interests of justice. I am encouraged to that view by noting that he has served a substantial proportion of the effective non-parole period of 5 years imposed after partial accumulation of the two sentences. 74I propose the following orders:
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The grounds of appeal 43Although grounds of appeal filed by each of the appellants were slightly differently worded, in essence it was jointly submitted on the hearing of the appeal that the trial miscarried by reason of the trial judge's direction that the delay of five days before the three appellants presented at the police station and gave their account of events may be used by the jury as evidence that they were conscious of their guilt of the offences charged. 44The conflict between the evidence of the occupants of the house and the appellants' accounts to police (with evidence in the Crown case capable of both supporting and contradicting the competing versions) attracted a direction from the trial judge that were the jury to regard their accounts as a reasonably possible version of events they were entitled to be acquitted. Her Honour did not, however, direct the jury that even were they to reject those accounts they would need to be satisfied beyond reasonable doubt of the evidence of the Crown witnesses (that they returned to the house armed with a pistol and that Mark Humphries discharged it) in order to return verdicts of guilty. Although a direction in these terms was not sought, on the appeal it was submitted that in a trial that was essentially word on word and where the appellants relied upon the accounts given in their ERISPs to raise a doubt as to their guilt, to erroneously direct the jury that the five day delay in providing their accounts could be used by the jury as evidence of their guilt was such that it was not open to the Crown to rely upon the application of the proviso in s 6(1) of the Criminal Appeal Act 1912 (Wilde v R [1988] HCA 6; 164 CLR 365).
(1993) 178 CLR 193
(1992) 29 NSWLR 109
[2000] HCA 3