MM v R

HEADNOTE [This headnote is not to be read as part of the judgment] MM (the applicant) sought leave to appeal against his convictions for 9 sexual offences against his daughter contrary to ss 61M(2) and 66C(4) of the Crimes Act 1900 (NSW) following a jury trial before Hock DCJ. The applicant sought leave to appeal against his convictions on the ground that a miscarriage of justice was occasioned by a submission made by the Crown Prosecutor in closing address which invited consciousness of guilt reasoning and the trial judge's failure to direct the jury adequately about consciousness of guilt reasoning. The applicant's wife, KM, gave evidence that 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. She turned to the applicant and asked, "How could you?" to which he replied, "I don't know what you're talking about". In her evidence, KM stated that "it was bizarre". KM then told him to "Get out" and he left. In the Crown closing address, the prosecutor stated to the jury that "you might think … if the accused was being wrongfully accused of a horrendous crime … 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". Defence counsel made no objection. The trial judge raised the prosecutor's submission with counsel in the absence of the jury and subsequently made a direction to 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 such allegations, that people's reactions to accusations differ and that people do not always act predictably in such circumstances. The Court held (Adamson JA, Price and Davies JJ agreeing) dismissing the appeal: (1) There is an important distinction between words and conduct of an accused which can be used as an implied admission, or evidence of "consciousness of guilt", and which form part of the evidence against the accused in the Crown case, and 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: [18]. (2) Where a prosecutor relies on words or conduct 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: [21]. (3) 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 direction) will only be required if there is a risk that the jury may use it in that way: [22]. (4) There has not been a miscarriage of justice by reason of the omission to give a full Zoneff direction. 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: [57]-[59].