Consciousness of Guilt and Implied Admissions
26The law has always recognized the legitimacy of reliance upon post-offence conduct in support of a prosecution case. The most common example of such post-offence conduct is lies told by an accused ( Edwards v The Queen (1993) 178 CLR 193), although an accused's silence in response to an allegation which he/she might reasonably be expected to deny ( R v MMJ [2006] VSCA 226), the destruction of evidence ( R v Nguyen [2001] VSCA 1) and attempts to influence the evidence of witnesses ( R v Smit & Ors . [2004] NSWCCA 409) all fall into the same category. Similarly,
Flight from justice, and its analogous conduct, have always been deemed indicative of a consciousness of guilt. ...... It is universally conceded today that the fact of an accused's flight, escape from custody, resistance to arrest, concealment, assumption of a false name, and related conduct, are admissible as evidence of consciousness of guilt, and thus of guilt itself :..
Wigmore on Evidence, Vol 2, (1979) par 276(4)
27In R v Heyde (1990) 20 NSWLR 234, this Court reviewed the circumstances under which it was permissible to leave a lie told by an accused as corroboration of a witness' evidence. Allowing for the fact that corroboration no longer exists as a requirement in criminal proceedings, the following passage at 242 from the judgment of Clarke JA (Gleeson CJ and Studdert J agreeing) is apposite :-
[Support for] the evidence of a witness for the prosecution may be provided in a number of ways. It may be found in the admissions of an accused. It may also be found in inferences drawn from certain aspects of the conduct of the accused. That conduct may extend to, or include, a lie .... A lie could, however, only provide [support] if, broadly speaking, it was capable of supporting an inference that the evidence of the relevant prosecution witness on a material point was probably correct. This, it has been held, will occur only where it is open to the jury to infer that the lie was told because of a fear of the truth or a consciousness of guilt.
28Later, at 244, Clarke JA observed that, provided that it is open to the jury to rationally draw an inference that consciousness of guilt motivated the relevant conduct on the part of the accused, the jury should be directed that such an inference cannot be drawn unless other reasonable explanations for the conduct inconsistent with a consciousness of guilt have been excluded.
29The Dictionary to the Evidence Act 1995 provides that an admission is :-
a previous representation that is:
(a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding), and
(b) adverse to the person's interest in the outcome of the proceeding.
" previous representation " means a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced.
" representation " includes:
(a) ......................... or
(b) a representation to be inferred from conduct,
30This definition simply reflects the common law position, namely that guilt may be inferred from an accused's conduct. The thrust of the cross examination in the instant case was that the jury could infer from the appellant's conduct (not robustly denying the allegation to N) that he effectively admitted the offence.
31As I have already noted, the appellant focused upon the effect on the jury of the Crown Prosecutor's cross examination and emphasized that, regardless of the attempt to present the appellant's conduct as a matter going to his credibility, the substance of the submission invited consciousness of guilt reasoning. The appellant did not argue that it was not open to the jury to draw the relevant inference.
32The Crown maintained that there was no such reliance and that the determining factor was the acceptance by the Crown Prosecutor in his closing address that proof of the Crown case depended entirely upon the complainant. In other words, the Crown did not ultimately seek to use the evidence of the appellant's conduct in support of the complainant's evidence.
33The majority judgment in Zoneff v R [2000] HCA 28 ; 200 CLR 234 makes it clear that the critical issue in determining the necessity for and scope of a direction to the jury concerning their use of implied admissions is the risk of misunderstanding on their part :-
16 There may be cases in which the risk of misunderstanding on the part of a jury as to the use to which they may put lies might be such that a judge should give an Edwards -type direction notwithstanding that the prosecutor has not put that a lie has been told out of consciousness of guilt. 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.)
17 Moreover, if there is a risk of confusion or doubt as to the way in which the prosecution puts 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.
34To similar effect is the following observation by Kirby J at [71] :-
The first problem is that it cannot ultimately depend upon the intention or subjective purpose of the prosecutor as to whether or not a judicial direction to a jury about that subject of lies must be given. The criterion must be the way the jury might use the evidence not the subjective purpose of the prosecutor in eliciting the evidence or relying upon it. That is why, in Edwards , the majority judges referred to "where a lie is relied upon to prove guilt". That expression must be given meaning according to objective standards. There is a lot of loose talk in the cases about the prosecutor's intention. I regard that as irrelevant except so far as it helps to identify what the jury might have made of the questioning or evidence.
35What was conveyed to the jury on the subject of the appellant's conduct in response to the allegation ? Contrary to the Crown's submissions, I am not persuaded that the answer to that question resides solely in the respective closing addresses. If the cross examination of the appellant gave rise to the risk of consciousness of guilt reasoning in the minds of the jury, it was incumbent on the judge to seek clarification from the Crown Prosecutor and to direct the jury accordingly.
36The Crown Prosecutor's attempt in his closing address to the jury to characterise the appellant's conduct as somehow relevant to his credibility did not remove the sting inherent in the cross examination. The italicised passage at [20] above repeated the theme that the appellant's conduct in not "protesting his innocence from the rooftops" was consistent with a guilty mind.
37That submission had very little to do with the appellant's credibility as a witness in the trial. It was not suggested by the Crown Prosecutor that the appellant's account in his evidence of his response to the allegation was materially different from the account given by other witnesses. The submission was framed in terms of his failure to "protest his innocence from the rooftops" as a relevant factor in the jury's assessment of his veracity as a witness. The jury were invited to reject his evidence in the trial (including his denial of the offence in his evidence) partly because his conduct was inconsistent with that of an innocent man. When the submission is properly analysed, it is not far removed from reliance upon consciousness of guilt.
38This case is to be contrasted with Elmasri v R [2010] NSWCCA 11. In that decision, R A Hulme J (McClellan CJ at CL and Price J agreeing) was at pains to point out that an "unprompted denial" by the appellant was plainly dealt with as a credibility factor, given that the Crown Prosecutor in his closing address had submitted that the explanation by the appellant at trial for the "unprompted denial", namely the erroneous omission in the notes by the police of a question that elicited that response, was not credible in the face of the appellant's correction of another aspect of the police interview on an earlier occasion : Elmasri [51] and [54] - [55].
39Moreover, the peripheral significance of the "unprompted denial" in the prosecution case in Elmasri persuaded the Court that there was no risk that the jury would have adopted consciousness of guilt reasoning. The prosecution case in Elmasri consisted of a number of pieces of circumstantial evidence, excluding the "unprompted denial", in addition to the direct evidence of a co-offender.
40In the instant case, the appellant's conduct assumed considerable significance in the trial, particularly when the trial was conducted, and the jury were instructed, on the basis that the only evidence of the offence came from the complainant. It was a "word against word" case, which rendered it more likely that the jury would cast around for evidence tending to support the allegation. The Crown Prosecutor's cross examination, and to a marginally lesser extent, his closing address presented the appellant's post offence conduct as potentially supportive of the prosecution case.
41In so far as consciousness of guilt reasoning involves the drawing of an inference from the relevant conduct in favour of guilt, the trial judge in Elmasri gave a number of directions concerning the drawing of inferences, and, at one point, went so far as to direct the jury that an inference unfavourable to the accused required satisfaction beyond reasonable doubt. No direction on the drawing of inferences was given in the appellant's trial.
42In the circumstances of this case, I have come to the view that it was necessary for the trial judge to give a direction to the jury which would guard against the unjustified drawing of an inference adverse to the appellant. The cross examination of the appellant unequivocally suggested that the appellant's conduct constituted an implied admission. At the very least, the jury should have been directed that, before they could infer that the appellant behaved as he did because he was conscious of his guilt of the offence, they were required to examine that inference to determine whether it was a reasonable and justifiable one and they were required to exclude any alternative inference that was inconsistent with guilt. The most obvious alternative inference that called for exclusion was that the appellant acted in accordance with his sister's advice, namely, to say nothing about the allegation to anyone, including N, his wife and the complainant.
43If one were to go further and consider adapting the recommended directions relating to the use of lies as consciousness of guilt, discussed by the majority in Edwards , the tenuous nature of the proposition sought to be established by the Crown Prosecutor in cross examination is more apparent. According to Edwards (at 210 - 211), the conduct should be precisely identified, together with the circumstances and events that are said to indicate that the conduct constitutes an implied admission. The conduct was not precisely identified ; was it the appellant's failure to make further enquiry of N and/or his failure to protest his innocence, beyond the constructive denial in the text message to N ? What were the circumstances and events that indicated that the appellant's conduct constituted an implied admission ? How did the appellant's conduct in failing to categorically deny the offence to N, in particular, reveal his knowledge of the offence or some aspect of it ?
44The appellant has succeeded in respect of grounds 1 and 2. It is not necessary to deal with ground 3 in the light of my conclusions on the first two grounds.
45Notwithstanding the application of Rule 4, the appeal should be allowed and the conviction quashed. There is a reasonable possibility that, in the absence of appropriate directions, the jury's verdict was affected by its use of the appellant's conduct in order to support the complainant's allegation. The appellant has served the non parole period of the sentence imposed in respect of this offence. There is therefore no utility in ordering a new trial.
46I propose the following orders :-
(1)Appeal against conviction allowed.
(2)The conviction is quashed and the sentence imposed on 8 October 2009 is set aside.
(3)Enter a verdict of acquittal.