MM v R

JUDGMENT

1. ADAMSON JA: MM (the applicant) seeks leave to appeal against his convictions for 9 sexual offences (counts 1-4 and 6-10 on the indictment) contrary to ss 61M(2) and 66C(4) of the Crimes Act 1900 (NSW) against his daughter, HM (the complainant). The offences were alleged to have been committed between 1 May 2016 and 25 August 2018 when HM was under the age of 16 years. On 1 March 2022, Hock DCJ (the trial judge) directed a verdict of acquittal in respect of count 5. In respect of all remaining counts, the jury returned guilty verdicts on 7 March 2022.
2. On 1 July 2022, MM was sentenced to a term of 10 years' imprisonment, commencing on 7 March 2022 and expiring on 6 March 2032, with a non-parole period of 6 years and 6 months. He will first be eligible for parole on 6 September 2028. There is no challenge to the sentence.
3. The sole ground of appeal is: "A miscarriage of justice was occasioned by: (a) a submission made by the Crown Prosecutor in closing address which invited consciousness of guilt reasoning; and (b) the trial judge's failure to direct the jury adequately about consciousness of guilt reasoning."
4. Leave is required pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) as the ground is not confined to a question of law alone. Leave is also required pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW), as defence counsel did not seek the direction which the applicant now contends ought to have been given.
5. The ambit of the ground of appeal does not require the evidence adduced by the prosecution to be set out in detail. It is sufficient, for present purposes, to record that the complainant gave evidence of the offences and her complaints to others (some of which were recorded in text messages, which were tendered). Her mother, KM, and Detective Senior Constable Phillip Marsi also gave evidence.

The evidence and conduct of the trial relevant to the ground of appeal

KM's evidence

1. KM gave evidence that, on 30 September 2020, in the course of an argument about the complainant's desire to leave home, the complainant told KM that the applicant had been touching her. KM turned to the applicant and asked, "How could you? How could you?", to which he replied, "I don't know what you're talking about." KM asked the applicant to leave the house, which he did.
2. KM's evidence was as follows: "I was getting ready for bed. I'd had an operation three days prior. And I went to say goodnight to [the complainant]. And she told me she was going to [her boyfriend's] house, who was her boyfriend at the time. … I said that she needed to balance her life and she had her HSC coming up, that she needed to concentrate both on her studies, but, you know, balance her social activities with her studies. Q. … Was there anyone else in the room at that time? A. Not at that minute. But I did ask [the applicant] to come and help me because he was laying on the lounge. And because [the complainant] was then threaten[ing] to move out and I - and I said, 'Why would you want to move out? You are - this is ridiculous, you know.' … I asked [the applicant] to help me. I said, 'Can you hear what's going on? Can you come and help me, please?' And with that, he stormed in, and he told her she can 'fucking move out then'. And the tone and the aggression was - was a total overreaction. And I asked him - I said to him, 'I asked for your help, not for you to add fuel to the fire.' And [the complainant] said to me, 'You don't know why I want to move out.' And I said, 'No, I don't.' And she said, 'You don't know what he's done to me.' And I said, 'What has-- Q. Just pause there. Who was she referring to? A. Her father. Her own father. Her own biological father. … HER HONOUR: Let me know if you need a break at any time. We can break the link. WITNESS: No, it needs to be said. The truth needs to come out. CROWN PROSECUTOR Q. Did she say anything after that? A. Yes, I said - I said, 'What has he done?' And she held my hands, both my hands, and she just looked dead in my eyes. And I said, 'What has he done?' I knew he hadn't hit her. And it just - my whole world just spun. Because, I - I just knew what she was going to tell me. It all just added up, everything. … she said he touched her - he'd been touching her. And I turned around, and he was standing in the doorway. And I looked at him. And I said, 'How could you? I - how could you?' And he just was as calm as anything. And he said, 'I don't know what you're talking about', just like that, like it was nothing. Like I was asking him what he wanted on his toast. It was bizarre. Q. Did you say anything to him? A. I said, 'Get out.' I said, 'Get out.' And he did. He didn't argue. Q. Do I take it that [the complainant] didn't say anything else to you at the time? A. She just broke down. She broke down. I [sic] was vomit - like, dry retching, vomiting. I called triple-0. My son was laying in the bed - in our bed. His father walked past apparently. Didn't say 'goodbye' to him."

The defence case

1. The applicant, who did not call or give evidence (as was his right), did not substantially contest the evidence of this exchange. His case was that there had been no sexual conduct or behaviour with the complainant at all.

The Crown closing address

1. In the Crown closing address, on 1 March 2022, the prosecutor referred to the complainant's disclosure to KM as follows: "In September 2020 after an argument, the complainant said that she told her mother, [KM], that the accused had been touching her. And that's in the complainant's evidence .... Yesterday, you heard evidence from the complainant's mother, [KM], and these are questions that I asked her: 'Q. What happened after that? That is, after [HM] threatened to move out and you said something to her about that. A. Yeah, I said I asked [the applicant] to help me: 'Can you hear what's going on?' And then later she said that the accused 'stormed in and he told her, 'She can fucking move out then,' and the tone and the aggression was a total overreaction.' The complainant said to her mother - and this is the evidence that [KM] gave yesterday - 'You don't know why I want to move out.' [KM] said, 'No, I don't,' and the complainant said, 'You don't know what he's done to me.' And I said, 'What has?'' And then I asked her to pause. Who was she referring to? That is, I'm asking [KM] yesterday who the complainant was referring to, and [KM] replied, "Her father, her own father. Her own biological father." [KM] then gave evidence that she asked the complainant, 'What has he done?' And she held my hands, both my hands' - and you recall [KM] gestured with her hands - 'and she just looked dead in my eyes, and I said, 'What has he done?'' And then I stopped her, and I reminded her not to tell you what she thought. She said, 'Yes, she said he touched her, he'd been touching her, and I turned around and he was standing in the doorway" - referring to the accused - 'and I looked at him and I said, 'How could you? How could you?' and he just was calm as anything, and he said, 'I don't know what you're talking about' - just like that, just like it was nothing.' And then she told him to get out. You might think, ladies and gentlemen, if the accused was being wrongfully accused of a horrendous crime, of sexually assaulting and touching his own daughter, you might think that his reaction might have been different. You might think that that was the reaction of someone who had in fact committed that horrendous crime. [KM] said that the complainant just broke down, and that she called triple-0." [Emphasis added.]
2. The Crown accepted in this Court that the passage highlighted above invited consciousness of guilt reasoning.
3. No objection to this aspect of the Crown address was taken by defence counsel.

The defence closing address

1. Defence counsel also addressed on 1 March 2022. The address largely focused on challenges to the complainant's credibility. Defence counsel referred to the complainant's disclosure to KM and KM's questioning of the applicant. However, the only submission made about this evidence was that just because KM believed the complainant did not mean that she was telling the truth.

The trial judge's consultation with counsel about the appropriate direction during the summing up

1. The trial judge commenced the summing up on 1 March 2022. On the morning of 2 March 2022, before the trial judge resumed her summing up, her Honour raised, in the absence of the jury, the prosecutor's submission set out above. At this point, the following exchange occurred: "SHUKOOR [defence counsel]: … It's something that my friend and I in a consciousness of guilt kind of situation I raised it with my friend and we had a bit of a discussion, there's no secret about this, a bit of a discussion about it and my thoughts overnight on it were it's not a classic consciousness of guilt type situation of fleeing or telling a positive lie or anything. But it may be academic because what I was thinking is if your Honour is not going to make detailed reference to my friend's submission, and I don't take issue with the submission, it was I suppose open on what [KM] had said. If your Honour is then going to make reference to that submission in your Honour's summing-up, I am happy to just let it go I suppose. Not let it go in the sense that my friend, there's anything wrong in it, but just to let it be. Because I don't think it's the major issue in this case I suppose, and I don't want to draw any further attention to it. As long as your Honour is not going to make any detailed reference to it when summing up, that's all. HER HONOUR: No, well as I've said I am not going to make detailed reference to the addresses, but I'm just worried about the possibility of the jury misusing evidence. … CROWN PROSECUTOR: Certainly it's never been the Crown case that that was a consciousness of guilt because many people react to things differently. HER HONOUR: I know that. … CROWN PROSECUTOR: I don't have a problem with your Honour referring to it and indicating that there are many reasons why persons may react, but the accused did deny it by saying 'I don't know what you're talking about'. I don't know that would satisfy if your Honour - HER HONOUR: I'm not minded to say that if they accept the way the accused acted they could use that in support of the Crown case. CROWN PROSECUTOR: No. HER HONOUR: I just want to emphasise that he denied the act. … And also tell the jury that from their common sense and experience of life people in the position of the accused when faced with such an allegation might not act predictably. Something along those lines. CROWN PROSECUTOR: Yes. HER HONOUR: But not allow them to use it in any way in support of the Crown case. CROWN PROSECUTOR: Yes, I'm happy with that. HER HONOUR: I'm not going to say that. CROWN PROSECUTOR: Yes, thank you. HER HONOUR: Are you content with that? SHUKOOR: I'm content with that."
2. Following that discussion, defence counsel asked the trial judge to remind the jury that after the applicant said that he did not know anything about the allegations, KM swore at him and told him to leave, following which he left. Thus, defence counsel specifically requested that the jury be reminded of his denial (which was consistent with the defence case) and that his departure was in accordance with KM's request (and was therefore not of his own volition and did not amount to "flight").
3. Shortly after the jury returned, the trial judge said, of present relevance: "As I remind you, as I told you yesterday, there is no burden of proof on the accused, nor on any issue. In his address yesterday the Crown Prosecutor reminded you that the accused denied the allegation when his wife at the time, [KM], confronted him with it, and the accused said, 'I don't know what you're talking about". Then at page 60 of the transcript [KM], this is in cross-examination, [KM] was asked, 'Did you swear at him and tell him to get out?'. She agreed she did, and then he left the house and she agreed with that. In his address the Crown Prosecutor criticised or made adverse comments about the accused's reaction at the time of the allegation, but I should remind you it is really a matter for you to apply your common sense and experience of life, and what you might expect a person in the position of the accused to do or say when faced with allegations such as these. You should also consider that people do not always act predictably in certain situations."
4. In the first paragraph of the passage extracted above, the trial judge, in accordance with defence counsel's request, reminded the jury of the applicant's denial and his subsequent departure following KM's request. In the second passage, her Honour directed the jury about the second aspect, the applicant's calm demeanour, apparently with a view to diminishing its significance.

Consideration

1. Mr Howell, who appeared on behalf of the applicant in this Court, submitted that the prosecutor's submission regarding the applicant's reaction to the complainant's accusations ought not to have been made and, once made, ought to have been withdrawn. He submitted that the effect of the prosecutor's submission was to invite the jury to reason that the applicant's reaction when confronted by his wife was the reaction of a guilty person in that, if HM's allegations were untrue, his reaction would have been different. Mr Howell submitted that, irrespective of the attitude taken by defence counsel, the primary judge ought to have directed the jury that it was not entitled to rely on the applicant's reaction to the accusation in support of the prosecution case.

The relevant principles

1. The present application turns on the important distinction between: 1. words and conduct of an accused which can be used as an implied admission, also referred to as evidence of a "consciousness of guilt", and which form part of the evidence against the accused in the Crown case; and 2. words and conduct of an accused which may affect the jury's assessment of the accused's credibility or give rise to a reasonable doubt but which do not add to the evidence in support of the Crown case.
2. The distinction is important for several reasons. For example, evidence which can be used as evincing a consciousness of guilt weighs in the balance on the prosecution's side of the scales when assessing guilt (at trial) or whether a verdict is unreasonable (on appeal). In this respect, an implied admission can have the same function as an express admission in strengthening the Crown case. By contrast, evidence of the accused's words or acts which cannot be used for that purpose is relevant only to the accused's credibility and whether the accused's version gives rise to a reasonable doubt: see Harper v R [2022] NSWCCA 211 at [130]-[131] (Button J, Bell CJ and N Adams J agreeing). If a jury believes an accused's version or considers that it could possibly be true, then it is obliged to acquit but if it rejects the accused's version entirely, the jury is to put that version to one side (and count the accused's version neither against the accused nor in favour of the Crown): De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48 at [12] (Kiefel CJ, Bell, Gageler and Gordon JJ).
3. The concern of the law to protect accused persons in relation to the admissibility of express admissions (including in s 90 of the Evidence Act 1995 (NSW)) is also reflected in its concern as to the admissibility and use by the tribunal of fact of implied admissions. Admissions, whether express or implied, may have significant forensic power to bolster a Crown case, particularly when it is otherwise either wholly or largely based on the evidence of a single witness. The range of situations in which a consciousness of guilt has been accepted to have been evinced is wide. For example, in Woon v The Queen (1964) 109 CLR 529; [1964] HCA 23, it was held that selective answering of police questions in a recorded interview could amount to evidence of a consciousness of guilt.
4. Where a prosecutor relies on words (commonly lies) or conduct (commonly flight or destruction of evidence) of an accused as amounting to a consciousness of guilt (an implied admission), a direction in accordance with Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63 (Edwards) is required. The statement of principle and the matters required to be included in a so-called Edwards direction are set out at 210-211 (Deane, Dawson and Gaudron JJ) as follows: "A lie can constitute an admission against interest only if it is concerned with some circumstance or event connected with the offence (i.e. 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), 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 realization of guilt. A lie may be told out of panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the offence. 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 recognized 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. The accused may be confused. He may not recollect something which, upon his memory being jolted in cross-examination, he subsequently does recollect." [Footnotes omitted.]
5. Where the prosecutor does not rely on post-offence words or conduct as amounting to a consciousness of guilt, a direction that the jury ought not use the evidence as a consciousness of guilt (a so-called Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28 (Zoneff) direction, see below) will only be required if there is a risk that the jury may use it in that way. The risk may arise from the evidence itself or, more commonly, from the way in which the prosecutor has cross-examined the accused or the prosecutor's closing address.
6. Where there is thought to be a risk that evidence of words or conduct might be used by the jury as evidence of a consciousness of guilt (and thus supportive of the prosecution case), it is important to identify in the direction the words or conduct which are said to carry that risk.
7. In Zoneff, the prosecutor did not suggest, when cross-examining the appellant at trial, that any answer given was a lie told out of consciousness of guilt. Nor did the prosecutor address the jury (as the appellant represented himself at trial).
8. In the summing up, the trial judge in Zoneff gave the following direction: "There have been some questions put to the accused that in fact he lied. At times it can be put to you by the Crown that if a person lies, really, it is out of what we call a consciousness of guilt. In effect, they are guilty and they are covering up, but I have to remind you, of course, that there are many, many reasons why people at times lie. Many of them, of course, not consistent with guilt. They can do it out of panic. They can do it perhaps because they are covering up for someone and, indeed, there are many other reasons. However, I think it important to look at whether a person is being deliberately untruthful. Of course, if you find they have, it may naturally affect that person's credit, whether you believe what they are saying, but in all of these situations you have to look at the manner that that was put and what was said but, bearing in mind, of course, if perhaps some person has been misled. For instance, I think Mr Zoneff was very open about how salesmen do mislead people because what they have in mind is the ultimate sale. Consequently it can be seen in that light. However, it does not detract you from looking at the Crown's obligation, really, in each case, in each of these charges, to prove it; and, as to what was said by the accused, really is a matter for you to assess and, indeed, whether that goes to his credit, perhaps not to the question of his guilt." [Emphasis added.]
9. In Zoneff, the majority (Gleeson CJ, Gaudron, Gummow and Callinan JJ) said: "21 Because the Crown did not put, either in cross-examination or in any submission at the trial that there was any material capable of being regarded as a lie stemming from a consciousness of guilt, the direction [which was extracted] should not have been given. 22 The trial judge was evidently concerned that, having regard to some of the cross-examination, there was a serious risk that the jury might engage in an impermissible process of reasoning in relation to the matter of lies. Unfortunately, his response was to give a direction which … raised the topic and then left it largely up in the air. 23 A direction which might have appropriately been given and which would have allayed any concerns which the trial judge may have had, in this unusual case, in which the issues may not have been defined as they might have been had the prosecutor made a speech to the jury, is one in these terms: 'You have heard a lot of questions, which attribute lies to the accused. You will make up your own mind about whether he was telling lies and if he was, whether he was doing so deliberately. It is for you to decide what significance those suggested lies have in relation to the issues in the case but I give you this warning: do not follow a process of reasoning to the effect that just because a person is shown to have told a lie about something, that is evidence of guilt.'" [Emphasis added.]
10. The High Court confirmed that a direction to the jury concerning, in that case, lies was required if there was a risk that the jury might otherwise misunderstand the use to which the evidence could be put. The majority said: "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."
11. Kirby J said, to similar effect, 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."
12. The forensic decision of defence counsel to seek, not seek, or refuse, a direction is relevant but not determinative of whether there has been an error or a miscarriage of justice (see, for example, AB v R [2023] NSWCCA 165). The use of consciousness of guilt reasoning without a direction in accordance with either Edwards or Zoneff has the potential to make the trial of an accused unfair.

Other relevant authorities

1. I propose to survey cases to which the Court has been referred by the parties in their submissions. They illustrate the circumstances in which the absence of a Zoneff direction has been challenged. They also demonstrate the factors which are relevant to whether a conviction ought be quashed on that basis, which include the nature and importance of the evidence, the risk that it will be used by the tribunal of fact as evidence of guilt and the way in which the trial has been conducted.

Dhanhoa v The Queen

1. In Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40 (Dhanhoa), the Crown in final address pointed out to the jury the differences between the appellant's account to police in September 1999 and what he said in his evidence at trial. He did not, however, submit that either of these versions amounted to lies which indicated a consciousness of guilt. The High Court considered that neither an Edwards nor a Zoneff direction was required as the prosecutor's submission sought to cast doubt on the credibility or reliability of the appellant but did not seek to invite the jury to engage in consciousness of guilt reasoning. Gleeson CJ and Hayne J said at [34]: "It is not necessary for a trial judge to give a direction, either of the kind referred to in Edwards, or of the kind referred to in Zoneff, every time it is suggested, in cross-examination or argument, that something that an accused person has said, either in court or out of court, is untrue or otherwise reflects adversely on his or her reliability. Where the prosecution does not contend that a lie is evidence of guilt, then, unless the judge apprehends that there is a real danger that the jury may apply such a process of reasoning, as a general rule it is unnecessary and inappropriate to give an Edwards direction. Zoneff was said to be an unusual case, and the direction there proposed was said to be appropriate where there is a risk of misunderstanding about the significance of possible lies. The present was not such a case." [Footnotes omitted.]
2. McHugh and Gummow JJ considered there to be "only a very slender possibility that the jury would have considered that his statement to police indicated a consciousness of guilt": [61]. However, in any event, their Honours were not persuaded that there was a reasonable possibility that the verdict of guilty would have been different if the trial judge had given a direction concerning the lies: [63].

McKey v R

1. Mr Howell relied on this Court's decision in McKey v R [2012] NSWCCA 1; (2012) 219 A Crim R 227 (McKey). In that case, it was alleged that the appellant digitally penetrated the complainant while they were staying at the home of the complainant's sister (KN) in preparation for KN's wedding to N. The appellant was N's best man. The appellant gave evidence at trial, denying that any sexual activity had taken place between himself and the complainant.
2. The prosecutor's cross-examination of the appellant included the following: "Q. Allegations of sexual assault by a 14-year-old against you are a terrible thing? A. Yes. Q. Especially if they are false? A. Yes. Q. You would want to protest your innocence long and loud, would you not? A. People close to me that knew, they believed me. That was the main thing to me. If people who don't know me that well didn't believe me then there is nothing I can do about that. Q. Could have picked up the phone, rung N and said hold the bus, none of this, stop spreading this around it's false? A. I could have picked up the phone and done that, yes but in my mind it wouldn't have solved their problem. Q. Time goes on and then the police come and see you ultimately? A. Yes. Q. And in all that time up until when the police come and see you and I think that was around September, was it not September 2008? A. Around that, July, September, something like that, yes. Q. You hadn't made contact with N, KN or even [the complainant]? A. No. Q. You did nothing about it sir because the allegations are true? A. The allegations are false."
3. In re-examination, the appellant said that he had spoken to his ex-partner in December 2008 about the allegations and told her that he denied them. He also explained that his sister, a policewoman to whom he spoke shortly after he learned of the allegations, advised him not to do anything further. He said that he was "a bit stunned by it all" and that he accepted the advice he had been given.
4. In the Crown closing, the prosecutor in McKey said: "Do you accept, faced with terrible false allegations coming from a long-standing very close mate, that Mr McKey didn't seek some further information, didn't seek to tell them that it was false, stop saying anything about it, it just didn't happen? You might think he'd be protesting his innocence from the rooftops. No, he doesn't. It's a matter for you, if you would reject the evidence of the accused entirely."
5. In the defence closing, trial counsel said: "My learned friend says that Mr McKey didn't seek to tell them it was false, that is KN and N. Now the first conversation Mr McKey says, 'I don't know what you're talking about.' The first conversation. Virtually the first thing out, 'I don't know what you're talking. What are you talking about?' What more does my learned friend want from Mr McKey, in circumstances where his best man says he was abusing him down the telephone with this abhorrent act and then sending accusatory text messages? He seeks solace from his sister, a police officer, on his advice, you've heard the evidence, 'well just leave it. Something is going on here with this family. Just leave it.' A rational explanation you might think of Mr McKey, whoever is close to me I discuss it with them. What else can I do? What else could he do? Sue them for defamation? Well really."
6. In the summing up, the trial judge in McKey said: "[Defence counsel] says he did what you would expect him to do, denied it, and thereafter, on the advice of his sister, sought to let matters lie. The Crown suggested to you that this is not the sort of conduct that you would expect of somebody who was being vilified, defamed around Moree and so on, you would expect him at least to go on to establish further contact with his best mate and say 'that's not how it happened at all' or words to that effect. But those are arguments that you will evaluate yourself."
7. On appeal to this Court, Latham J (Whealy JA and Hislop J agreeing) said at [42]: "In 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."

Elmasri v R

1. In McKey, this Court distinguished Elmasri v R [2010] NSWCCA 11 in which the evidence which was said on appeal to give rise to the need for an Edwards direction was the appellant's "unprompted denial" of the allegations. The prosecutor adduced evidence of a conversation between police officers and the appellant after the arrest of two co-accused. The police officers gave evidence of the following exchange: "Det Bourke: We're still investigating the robbery, are you aware that a number of people have been arrested for the robbery? Appellant: Yeah, one of the staff member's fathers [Yatim] was arrested. Det Bourke: Yeah that's right, do you know him? Appellant: Yeah I've met him, I know him just to say hello to. … Det Bourke: Have you seen him since then? Appellant: No Det Bourke: Do you know his name? Appellant: No I don't even know his phone number. I've never spoken with him on the phone before." [Emphasis added.]
2. When the appellant was cross-examined about his "unprompted denial" (highlighted above), he said that the police had asked him (but omitted from their evidence), "Have you had any other contact with Mr Yatim by phone or any other way apart from him dropping his daughter off?". Although the Crown did not rely on this unprompted denial as either a lie or as evincing consciousness of guilt, it was argued on appeal that there was a real risk that the jury would have used it as evidence of a consciousness of guilt and that, accordingly, an Edwards direction ought to have been given and that its absence caused a miscarriage of justice.
3. This Court (R A Hulme J, McClellan CJ at CL and Price J agreeing) refused leave to rely on this ground, finding that "the evidence of the 'unprompted denial' was such a peripheral part of the evidence in the prosecution case that it is very doubtful that the jury gave it much, if any, attention at all": [59]. R A Hulme J concluded at [62]: "This case at trial concerned many other aspects of the evidence which were of moment. The 'unprompted denial' was a very minor and peripheral point. It would be completely unrealistic to elevate it to a matter of such importance that despite experienced defence counsel not perceiving it as a matter of the same substance for which it is now contended it had, and in the absence of directions for which appellate counsel now contends should have been given, there has been a miscarriage of justice. Leave to rely upon Ground 2 should be refused."

DC v R

1. In DC v R [2019] NSWCCA 234, the prosecutor relied on lies told by the applicant in his recorded interview with police as relevant to the applicant's credibility but not as evincing a consciousness of guilt. The trial judge did not direct the jury as to the use to which such false statements (if they were found to be false) could be put. Neither the prosecutor nor defence counsel sought either an Edwards direction or a Zoneff direction. Price J (Bathurst CJ and N Adams J agreeing) said at [155]: "… justice to the appellant required the trial judge to give a direction to the jury which guarded against the misuse of the suggested lies. Taking into account the forensic choice of trial counsel a brief direction could be given. In my view, the following direction was required: 1. It was a matter for the jury to decide that a lie (or lies) had been told; 2. In order to decide that a lie (or lies) had been told, they had to be satisfied that the appellant said something that was untrue and at the time of making the statement knew that it was untrue; 3. If they decided a lie (or lies) had been told, they could not use it in support of the conclusion that the appellant was guilty and; 4. The only use of a lie was in their assessment of the appellant's credibility."

Decision Restricted

1. Statements to similar effect were made by Price J (Hoeben CJ at CL and Ierace J agreeing) in Decision Restricted [2021] NSWCCA 124 at [292]-[303]. In that case, a pretext conversation between the appellant and the complainant was recorded. It included the following: "[Complainant]: - - - and then, um, and then you abused me. Many times. Appellant: Did I? … [Complainant]: Well you were physically touching me. You were physically masturbating me. Appellant: Was I?" [Emphasis added.]
2. In the Crown closing, the prosecutor enumerated 17 reasons why the jury ought find the appellant guilty of the offences charged. The prosecutor said: "In relation to the 13th reason I suggest you could find the [appellant] guilty, the conduct of the [appellant] when confronted by [the complainant], as recorded in the listening device, where the [appellant] said when suggestions were put to him about what he had done, 'Did I? Was I?'"
3. The prosecutor did not explain to the jury how they could use the appellant's answers to reason towards his guilt. Defence counsel did not address this submission in his closing address. In the summing up, the trial judge directed the jury only that the Crown was obliged to establish that the appellant's version of events could not be reasonably true and the appellant was not required to prove that his account was true.
4. Price J said, at [292]: "The result was that the members of the jury retired to consider their verdicts without any instruction as to the use they could make of the appellant's answers in the recorded conversation. Without direction or explanation as to how 'Did I?' 'Was I?' were asserted to be a reason for the appellant's guilt, and without being reminded of the appellant's explanation that these answers were expressions of surprise, there was a real risk that the jury might use the answers to reason that: (1) They were inconsistent with a denial of PW's assertions; and (2) The appellant's responses in some way amounted to an admission that PW's assertions were true; or (3) The appellant's responses were lies; or (4) Evidenced a consciousness of guilt."
5. On the basis that there had been a miscarriage of justice and that the appellant had lost a real chance of being acquitted, this Court found this ground to be made out, quashed the convictions and ordered a re-trial.

Harper v R

1. In Harper v R, this Court found that the following passage in the Crown closing in a trial by jury (set out at [63]) included an invitation to engage in consciousness of guilt reasoning: "After this, the accused continued to see [the complainant] and have sex with her. The Crown suggest that the reason he was prepared to talk to her and to continue in a sexual relationship after these allegations is because he knew that what she had written was true and he did not want to upset her further, which might force her to report his conduct. His version was that they basically agreed to be friends after this."
2. Button J said of this passage at [136]: "… the Crown prosecutor at trial was submitting that the applicant continued to have sexual and social contact with the complainant because he knew that he had sexually assaulted her, and he was afraid that, if he ended that contact, she would be upset with him and might go to the authorities. That was indeed reasoning based upon an asserted consciousness of guilt."
3. Neither an Edwards direction, nor a Zoneff direction was sought and none was given. The appeal was dismissed on the ground that the absence of such a direction did not cause a miscarriage of justice. The Court gave three reasons for this conclusion: first, the submission made by the Crown was "merely one of many arguments" and "was by no means the fulcrum of the case" ([139]). The verdicts of not guilty returned on many counts indicated that the absence of direction "did not play a compelling role in the deliberations of the jury" ([140]). Thirdly, the Court, having rejected an unreasonable verdict ground, considered the strength of the Crown case to be such that the absence of a direction did not constitute a miscarriage of justice ([141]).

The present case

1. In the present case, the applicant's words and conduct, taken at its broadest, had three aspects: first, a denial of the accusations; second, a calm demeanour; and, third, a departure from the premises when asked by KM to leave. His denial of the accusations could not be classified as a "lie" because it accorded with his plea of not guilty. Further, the applicant's departure following KM's request did not amount to "flight" because he left as a consequence of KM telling him to go. This left his calm demeanour as the only basis on which his post-offence conduct might have given rise to a risk that the jury would use it as evidence of a consciousness of guilt.
2. The potential for consciousness of guilt reasoning on the basis of post-offence conduct arose both from KM's evidence and the prosecutor's closing address. KM described the applicant as being "as calm as anything", as if she had just asked him what he wanted on his toast, and observed that his response was "bizarre". The prosecutor, in closing address, invited consciousness of guilt reasoning when he postulated that the jury might have thought that the applicant's reaction, if he had been innocent, "might have been different", given that he had just been accused of "horrendous crimes". This submission ought not to have been put in circumstances where the prosecutor purported to disavow consciousness of guilt reasoning.
3. I consider that leave to argue this ground ought be given under r 4.15 of the Rules as the alleged defect arose from the prosecutor's conduct of the trial in adducing KM's evidence, disclaiming consciousness of guilt reasoning but then implicitly raising it in the course of final address.
4. It is plain from the transcript extracted above that the trial judge was concerned about the risk of the jury misusing the evidence, particularly given what the prosecutor said about the applicant's response (in terms of his demeanour) to the accusations. Her Honour raised the matter with counsel, who both resisted it. Instead, her Honour gave a direction set out above, telling the jury to use their common sense to work out what they might expect a person in the position of the applicant to do or say when faced with allegations such as these and to consider that people do not always act predictably in certain situations.
5. The direction which the trial judge gave did not amount to a Zoneff direction since it did not expressly prohibit consciousness of guilt reasoning by warning the jury not to use the applicant's conduct to reason to guilt. Had her Honour included such a warning, it would have been to the following effect: I give you this warning: do not follow a process of reasoning to the effect that just because a person might react calmly to a serious allegation, that is evidence of guilt. Nonetheless, the direction contained many of the elements of such a direction.
6. The applicant's reaction to the accusations (beyond his denial, which was consistent with his case) was not a significant matter in the trial. The Crown case rested almost exclusively on the complainant's evidence. The defence case was, as referred to above, almost exclusively concerned with challenging her credibility. Unlike a deliberate lie or flight (which have a greater potential to be incriminating because they tend to be less equivocal), the applicant's calm demeanour when denying the accusations and his departure from the house at the request of KM were consistent with both innocence and guilt. To elevate the applicant's calm demeanour to the potential for consciousness of guilt reasoning in the summing up (by directing the jury not to engage in such reasoning) would have tended to prejudice the applicant by intimating that the applicant's calm response was inconsistent with innocence (and consistent with guilt), as his trial counsel evidently appreciated in not seeking a direction.
7. While defence counsel's conduct in not seeking a Zoneff direction is not determinative, it is instructive. Defence counsel had a forensic interest in the jury being reminded by the trial judge in the summing up of his denial of the accusations and that his departure was at the request of KM. He can be taken to have assessed the risk of the jury engaging in consciousness of guilt reasoning in respect of the applicant's demeanour as being so low as not to warrant a Zoneff direction.
8. In the circumstances, I am not persuaded that there has been any miscarriage of justice by reason of the omission to give a full Zoneff direction. Indeed, there was much to be said for the approach adopted by the trial judge, which was to remind the jury that people's reactions to accusations differ and that people do not always act predictably in such circumstances without warning them not to use his demeanour as evidence of guilt.

Further matters

1. The present ground of appeal was raised in circumstances where the prosecutor, having eschewed consciousness of guilt reasoning, invited the jury to engage in it in the portion of his closing address identified above. That it formed no part of his opening suggests that it was a forensic flourish. The important distinction to which I have adverted above between evidence of a consciousness of guilt and evidence which may cast doubt on the reliability of an accused's version must be borne in mind, particularly by prosecutors. It is insufficient for a prosecutor to state that evidence is not relied on as evidence of consciousness of guilt if, as a matter of substance, it is sought to be used as such.
2. Although the overriding duty of a trial judge is to ensure that an accused person is tried fairly, it is regrettable when prosecutors are insufficiently alert to the potential, engendered by their own submissions, for evidence to be used in an illegitimate way. The trial judge in the present case was alert to the issue, raised it with counsel and addressed it in what I consider to be an appropriate way, thereby preserving the fairness of the applicant's trial.

Proposed orders

1. For the reasons set out above, I propose the following orders: 1. Grant leave pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW). 2. Grant leave to appeal. 3. Dismiss the appeal.
2. PRICE J: I agree with Adamson JA.
3. DAVIES J: I agree with Adamson JA.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 September 2023