NAD -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 2 (4 January 2013)

Court of Appeal (WA)|2013-01-04|Before: Lure P

2 BUSS JA: The appellant has applied to this court for an extension of time to appeal, and leave to appeal, against conviction.

3 He was charged on indictment with five counts of sexually penetrating a female complainant (M), without her consent, in circumstances of aggravation, contrary to s 326 of the Criminal Code (WA) (the Code); one count of attempting to sexually penetrate M, without her consent, in circumstances of aggravation, contrary to s 326 read with s 552 of the Code; and one count of making a threat to unlawfully kill another female complainant (S), contrary to s 338B of the Code.

4 The circumstances of aggravation were that the appellant was in a family and domestic relationship with M.

6 The appellant pleaded not guilty to all of the counts. He was tried in the District Court before Birmingham DCJ and a jury. Judgments of conviction were entered on counts 2, 3, 5 and 6. The appellant was acquitted on counts 4 and 7. The jury did not return a verdict on count 1 and, later, the State discontinued that count.

(a) Count 2: the appellant sexually penetrated M, without her consent, by penetrating her vagina with his finger.

(b) Count 3: the appellant sexually penetrated M, without her consent, by introducing his penis into her mouth.

(c) Count 5: the appellant sexually penetrated M, without her consent, by penetrating her vagina with his penis.

(d) Count 6: the appellant sexually penetrated M, without her consent, by penetrating her vagina with his penis.

8 Count 4 alleged that the appellant attempted to sexually penetrate M, without her consent, by attempting to penetrate her anus with his penis; count 7 alleged that the appellant made a threat to unlawfully kill S; and count 1 alleged that the appellant sexually penetrated M, without her consent, by introducing his penis into her mouth.

9 The trial began on 14 November 2011 and ended on 17 November 2011. The trial judge imposed sentence on 3 February 2012. The last date for the appellant to appeal against conviction was 24 February 2012. He did not file his appeal notice until 29 March 2012.

10 The appellant has filed an affidavit sworn 29 March 2012 by his solicitor, Matthew Alexander Holgate, in support of the application for an extension of time.

11 It is convenient to consider the merits of the proposed ground of appeal before deciding whether an extension should be granted.

13 Prior to 22 January 2011, when the offending occurred, the appellant was in a relationship with M. The relationship produced a daughter, S. However, the relationship broke down because of domestic violence. When the appellant committed the offences, he was separated from M.

14 On 22 January 2011, the appellant went to M's home. He drove M and S in his car to his grandmother's house. S was left with the grandmother. The appellant and M went to a cinema to see a film.

15 On arrival at the cinema, the appellant and M discovered that the film had already commenced. They had a conversation outside the cinema. The appellant asked M if he could have her mobile telephone to check her Facebook account. M gave it to him. The appellant saw messages from other men on the telephone. He became jealous. The appellant told M to get into the car. He became very angry. When M got into the car he punched her in the head. As the appellant drove away, he held M's head on his lap so that other people could not see their argument or her crying. M attempted to escape from the front passenger seat, but the appellant grabbed her hair and pulled her back. He punched her three more times in the head. He threatened her, saying 'I'm going to kill you, you dog. I'm going to smash a brick over your head and give you two black eyes' (ts 18).

16 Eventually, the appellant stopped the car in a cul‑de‑sac and told M to get into the back of the car. She did so. The appellant also got into the back. This is where the sexual offences occurred.

17 According to the State, M participated in the sexual activity non‑consensually, as a result of her fear of being hurt again by the appellant.

18 As to count 1, M gave evidence that the appellant said that she had to give him oral sex and, if it 'wasn't good enough', he would 'punch the fuck out of [her]' (ts 43). As a result of this threat, she complied with his demand. The appellant used his iPhone to make a video record of the offence.

19 As to count 2, the appellant instructed M to remove her pants. She did so. He touched her genital area and penetrated her vagina with his finger. The appellant used the iPhone to make a video record of what occurred.

20 As to count 3, the appellant demanded that M give him oral sex again, which she did. As to count 4, the appellant attempted to force his penis into M's anus. As to count 5, the appellant roughly pushed his penis into M's vagina. As to count 6, the appellant again forced his penis into M's vagina.

21 The appellant returned to the front of the car and drove to a delicatessen and then to a service station. He put fuel in the car. When he was paying for the fuel, M climbed through the driver's side window and ran down the street. M's escape was captured on CCTV footage at the service station. As M ran, she called the emergency number, 000, on three occasions. During these calls M explained what had happened to her, and she appeared to be hysterical and traumatised. The appellant pursued her in the car for some distance. He then drove away. The appellant sent text messages to, and left voicemails on, M's mobile telephone. He pleaded with her, 'don't do it'. The State alleged that the appellant was urging M not to make a complaint to the police.

22 As to count 7, data downloaded from the appellant's and M's mobile telephones were tendered in evidence. The data included a statement by the appellant that 'if you tell them anything I will slice [S's] throat'.

23 The appellant gave sworn evidence at the trial. His case was as follows.

24 He admitted, in relation to the events of 22 January 2011, that he had punched M after reading the messages from the other men and that he had grabbed her by the back of her head when she had tried to get out of the car. He had then locked the car doors.

25 According to the appellant, after he had driven the car for some time, with M in the front passenger seat, he noticed that she was still upset. He apologised for hitting her and gave her a kiss. They got out of the car at a car park near a school and walked towards a laneway for the purpose of having sex. However, when a man walked past, they decided to go elsewhere. They returned to the car and both of them got into the back seat. According to the appellant, M did not protest or say anything, during the sexual encounters that followed, to indicate that she was not consenting to what occurred. Later, he drove to a delicatessen. Both of them got out of the car and walked around the shop. Next, they returned to the car and drove to a service station. M ran away while he was paying for fuel. He called her several times on his mobile telephone. She answered, saying 'I don't want to talk to you' (ts 263).

26 The appellant admitted, in essence, having had sex with M as alleged in counts 1, 2, 3, 5 and 6. However, he asserted that M had consented or, alternatively, if she did not consent then he honestly and reasonably, but mistakenly, believed that she had consented.

27 He denied having attempted to have anal sex with M. He also denied having made any threats about their child.

28 The appellant said in evidence that he had contact with M on four occasions while he was in custody in relation to these charges. He said that, on one visit, M said that she only complained because she 'wanted me to get away at the time', but she was now sorry and would not give evidence against him (ts 265 ‑ 266).

The prosecutor's and defence counsel's addresses and the evidence in relation to the condom and wrapper

29 The prosecutor told the jury in her opening address that, at some stage during the assaults committed in the back of the car, M noticed a condom on the floor. According to the prosecutor, M never saw the appellant put on the condom, but she recalled that he had said 'something about putting one on' (ts 21).

30 The prosecutor also said in her opening address that the jury would hear evidence from, relevantly, Senior Constable Mark Oversby about his having found a condom hidden in the security van used by the police to convey the appellant to a police station for the purpose of charging him with these offences.

31 Defence counsel did not make an opening statement. See s 143(2) of the Criminal Procedure Act 2004 (WA).

32 The complainant gave this evidence‑in‑chief about the condom:

Now, did he use protection at any time during this incident?---I saw a condom out of a packet on the floor, but I don't know if he used it. I think he might have used it during anal, but I think that's the only time.

Okay, now, when did you see this condom?---When he jumped in the driver's seat.

Okay, this last time you've described him jumping into the driver's seat?---Yep.

Okay, so right after he's finished ‑ he's ejaculated?---Yeah.

And where was the condom exactly?---It was on the floor on the back seat.

Do you know if it was on the driver's side or the passenger side?---I can't remember.

And did you see it before that stage? Has [sic] you noticed the condom before?‑‑‑I don't think so.

Now, you've said that you thought he might have used it during the anal‑‑‑?---Yeah.

‑ ‑ ‑ sex, what gave you that impression?---I don't know, because that's disgusting.

Was there any discussion during the whole incident about using protection?---I don't think so (ts 52).

33 Defence counsel did not cross‑examine M about the condom.

34 Senior Constable Oversby gave evidence that on 22 January 2011 he and Senior Constable Stephen Jakubans transported the appellant in a police security van to the Fremantle police station (ts 143 ‑ 144, 146). The appellant was in the security pod at the rear of the vehicle (ts 146). He was alone (ts 149).

35 Senior Constable Oversby said that on the morning of the next day, 23 January 2011, he found a used condom and wrapper in the security pod (ts 147). They were partly concealed under the rubber door seal on the inside of the door to the pod (ts 147 ‑ 148). He contacted Detective Senior Constable John Dorrington of the sex assault squad and told him what he had discovered (ts 148). Senior Constable Oversby placed the used condom and wrapper in an exhibits bag and delivered the item to the sex assault squad (ts 149).

(a) on 22 January 2011, no one apart from the appellant occupied the security pod of the vehicle in question;

(b) on 23 January 2011, no one occupied the security pod of that vehicle before he found the used condom and wrapper; and

(c) on the morning of 22 January 2011, he searched the inside of the security pod, before the appellant was placed in it, and the used condom and wrapper were not there (ts 149 ‑ 150).

37 Senior Constable Oversby said in cross‑examination that the used condom and wrapper could only have been placed under the seal of the door from inside the security pod (ts 157). They could not have been placed there from outside the van (ts 157).

38 The State's case included evidence to the effect that forensic testing was not carried out on the used condom or wrapper.

39 The appellant denied in cross‑examination that he had placed the used condom and wrapper under the rubber door seal (ts 321). He also said that there was no condom or wrapper on the floor of the car after his sexual interaction with M (ts 321). He asserted that he had never used 'protection on her' (ts 321). The relevant passage in the cross-examination reads:

Now, the condom, we've heard the evidence - you've heard the evidence of [Senior Constable Oversby] about the condom and the condom packet hidden in the door?---Yep.

Of the transport car, the van, the police van?---The police van. Yes, that's correct.

And you put that there, didn't you?---No, I didn't.

You removed that from the car, from your car and you had it on you and you were worried that they might test it?---No.

No?---Yeah, no.

Now, the - I don't know if you remember [M's] evidence that she saw a condom and package on the floor of the car - the floor of your car after the sexual incident had occurred?---No. I don't remember.

Don't remember her evidence?---Yeah. I don't remember her saying that.

Well, what do you say about that?---That there was no condom there.

There was no condom there?---Yeah.

And - or packet?---Yeah, or packet.

And did you use any protection?---I don't use protection on her.

You don't use protection on her?---Yeah.

Is that a long-standing arrangement or - - -?---That's just how it's always been. I just never use protection on her (ts 321 - 322).

40 The prosecutor summarised for the jury, in her closing address, the evidence that she submitted was relevant to the issue of consent. According to the prosecutor, this included Senior Constable Oversby's evidence about the used condom and wrapper found in the security van used to transport the appellant to the Fremantle police station. The prosecutor said:

You've got evidence of [Senior Constable Oversby] ... about the condom and package found in VM‑105, the car used to transport the accused to the police station. ...

So you can use this evidence to test ... what the complainant has told you and to test what the accused has told you, to decide whether it's consistent or inconsistent with their accounts. And you can also use that evidence to make an assessment about whether or not ... there was consent in this particular situation, from the circumstances beforehand and the circumstances of how the parties are behaving afterwards (ts 5).

41 Later, the prosecutor referred to M's evidence about the condom and wrapper she saw on the floor of the appellant's car:

She then noticed a condom ... and package on the floor of the vehicle. She never saw him put it on but he may have used it during the anal (ts 12).

42 Defence counsel made submissions in his closing address, about 'the issue of the condom' (ts 22). He suggested, in effect, that Senior Constable Oversby's evidence about the used condom and wrapper was fabricated:

... the issue of the condom. [The appellant] said that he didn't use any condom. ... you'll remember Senior Constable Oversby said that he discovered a condom the next day at the back of the van, the police van. It was slipped up in the seal of ... the back door.

The difficulty with that, members of the jury, was that we don't have even any picture, or a photograph of the condom itself. They say there was a condom. They haven't tested it. Even the fact that it was located at a different place, a different location. ... they've gone to the trouble of taking photographs of the back of the van, but we don't even know what the condom looks like; ...

... Members of the jury, I think the condom didn't exist. There wasn't any condom. It was just something that the police - throw up just for special effects. [The appellant] says he didn't use any condom (ts 22 ‑ 23).

The trial judge's discussion with the prosecutor and defence counsel before his summing up

43 The trial judge had a discussion with the prosecutor and defence counsel, in the absence of the jury and before he commenced his summing up, about the directions he should give.

44 His Honour raised with the prosecutor whether 'an inference of guilt' direction was necessary in relation to the evidence concerning the condom and wrapper. The following exchange occurred:

MATTOCKS, MS: Yes, the inference direction is necessary.

BIRMINGHAM DCJ: Is that as an inference of guilt?

MATTOCKS, MS: Well, yes. Well, that an inference ‑ yes, probably even going to consciousness of guilt. Yes, your Honour. But as well, the inference that he ‑ whilst we don't have direct evidence that he put the package ‑ the condom and the packet there, that we can infer from the evidence of Officer Oversby particularly that he did, and that he did that in an effort to hide it from police (ts 331).

45 Defence counsel did not make any submissions on this issue.

The trial judge's summing up in relation to the nature of evidence and inferences

46 The trial judge explained to the jury, in his summing up, the nature of evidence, how the jury might assess and evaluate the evidence, and the nature of inferences. He directed the jury in relation to the drawing of inferences adverse to the appellant:

However, you may only draw reasonable inferences, and your inferences must be based on the facts as you find them. There must be a logical and rational connection between the facts you find, and the conclusions or deductions you reach.

You don't indulge in speculation or guesswork. Importantly also, because this is a criminal trial, before you draw an inference against the accused, or come to any conclusion against the accused of guilty, you must be satisfied that it is the only reasonable inference or conclusion that can be drawn consistent with the proven facts.

It would not be proper for you to draw an inference against the accused unless you've reached the conclusion that such an inference is the only reasonable one open to you on the evidence. The circumstances which you must find established, must be such as to exclude every reasonable inference consistent with the accused's innocence (ts 345 ‑ 346).

The trial judge's directions in his summing up in relation to the appellant's evidence

47 The trial judge gave the jury these directions, in his summing up, in relation to its evaluation of the appellant's evidence in the context of the presumption of innocence and the burden and standard of proof:

In this case, the accused gave evidence. He didn't have to. He was quite at liberty not to give evidence. The accused chose to give evidence and he submitted himself to the cross-examination of Ms Mattocks for the State.

The fact that the accused gave evidence, however, does not in any way detract from the important principles that the onus is on the State to prove the charge that it presents against the accused, and that the accused is presumed innocent until the charges against him have been proved beyond a reasonable doubt.

It may be that you believe all of the accused's evidence in respect of the charges that you're considering. In that event, you would acquit him of those charges. Even if you prefer the evidence of the prosecution, you cannot deliver a verdict of guilty unless you're satisfied beyond reasonable doubt as to the truth of that evidence.

Even if you were not to believe the accused's evidence, you cannot find an issue against the accused contrary to his evidence, if his evidence has given ... rise to a reasonable doubt on that issue. It's important for you to remember that the question for you to consider, is whether on all the evidence before you, has the State proved the charge you are considering beyond reasonable doubt.

If the accused's evidence has given rise to a reasonable doubt, then he's entitled to the benefit of that, and you cannot convict him of that charge. Further, even if you don't accept the accused's evidence and you reject it entirely, it doesn't automatically follow that your verdict is one of guilty. If you don't believe the accused, then you put his evidence to one side, and then you look at the rest of the evidence.

You'll remember that the accused doesn't have to prove anything. So you look at the rest of the evidence and the question for you is this and it remains this question throughout. Has the State, on the basis of the evidence that you do accept, proved the accused's guilt beyond a reasonable doubt? That is the task (ts 347 ‑ 348).

The trial judge's summing up in relation to the condom and wrapper

48 The trial judge referred, in the course of his directions on count 4 (that is, the count of attempted anal penetration), to M's evidence about the condom and wrapper on the floor of the car and Senior Constable Oversby's evidence about the condom and wrapper in the security van:

You'd need to be satisfied that his positioning of his body behind the complainant and the presentation of his penis to her anus was an act being done with the intention of penetrating her anus. If you were satisfied that ... that physical act ... occurred with the intention of penetrating her anus even though he didn't, then you could be satisfied that the charge is made out.

If however, you're not satisfied beyond reasonable doubt ... as to the accused's intention then your verdict would be one of not guilty. In this regard there is one piece of evidence that is probably a standalone piece of evidence and that relates to the use of the condom. And you'll recall that the complainant says that there was a condom left on the floor, but that he didn't use the condom for sexually penetrating her vagina. I think the accused says that he didn't use the condom at all.

So one of the issues you might need to consider is whether in fact a condom was used during that act. ...

And that [Senior Constable Oversby said that] the next morning a condom was found. It had fallen out of ... or was in ... the seal of the door, and he was asked to take that and provide that to First‑Class Constable Long at the Sex Assault Centre for analysis. You heard that no tests were done in relation to that.

The accused says through his counsel ... in essence did the condom exist at all? ... [Defence counsel] said that the police ... threw this up to strengthen the case (ts 356 ‑ 357).

49 His Honour said that it was a matter for the jury whether they accepted the evidence of M and Senior Constable Oversby about the condom and wrapper. He noted that the jury had seen each of the witnesses (in particular, M, Senior Constable Oversby and the appellant) give evidence. However, his Honour gave the jury the following direction concerning the prosecutor's contention, in her closing address, in relation to this evidence:

I give you this caution, though: the State is inviting you to ... be satisfied the condom was there and placed there by the accused, that in essence, it's really done by the accused out of some acknowledgement of guilt in the sense that it might connect him with the offence with which he is charged, and that would seem to appear to be count 4 [that] is probably the one where it appears to be more relevant, but it's ‑ [in] relation of all of them, but the recognition of guilt and that his conduct in taking the condom and seeking to hide it shows a recognition on his part as to guilt (ts 357).

50 The trial judge then reiterated, in the context of the evidence about the condom and wrapper, his earlier directions on drawing inferences adverse to the appellant:

Can I just remind you [again], however, in relation to your obligations when you draw inferences? First, you only draw inferences on facts as you find to be proved on the evidence, and they must be reasonable inferences. And you don't draw an inference against the accused unless it's the only reasonable inference open on the facts. And in relation to this issue with a condom, you would need to be satisfied also that the accused did that out of a consciousness of guilty [sic], and you can only draw that inference if it was the only reasonable inference open.

It may well be that there are other explanations. People do things sometimes out of fear or otherwise of being wrongly accused or whatever, and so you couldn't readily draw an inference merely because a person has perhaps sought to remove from the car a piece of evidence, or what might otherwise be considered as evidence against him, as evidence in the fact that he has done something wrong, if there's any other reasonable explanation for that conduct.

So you need to be satisfied that it is the only reasonable explanation open to you before you could do that, and you also need to bear in mind that at times when confronted by these issues, people don't always necessarily behave in a rational way, but that's not to say they're behaving in an improper or unlawful way. So you need to be satisfied of those matters. You'd need to have regard to all of the factors that you need to be certain beyond a reasonable doubt, as to that inference before you could draw it (ts 357 ‑ 358).

51 Later in his summing up, his Honour reminded the jury, yet again, of his directions about drawing inferences adverse to the appellant (ts 363).

52 Neither the prosecutor nor defence counsel requested the trial judge to give the jury any further direction or redirection (ts 371 ‑ 372).

The learned trial Judge erred in law and/or fact in relation to the way he dealt with a lie relied upon by the prosecution as being capable of constituting a consciousness of guilt pursuant to Edwards v The Queen (1003) [1993] HCA 63; 178 CLR 193 ('the lie');

54 Particulars of the proposed ground have been provided, as follows:

1.1 The facts relied upon as underpinning the lie could not be said to reasonably support a lie told out of a 'consciousness of guilt';

1.2 The lie was not specifically identified to the jury by His Honour;

1.3 His Honour did not clearly tell the jury they must be satisfied beyond reasonable doubt of those facts relied upon by the prosecution as underpinning their contention that the lie was told out of a consciousness of guilt.

55 As to particular 1.1 of the proposed ground of appeal, it was submitted on behalf of the appellant that although the prosecutor did not expressly assert to the jury in her closing address, or to the trial judge in the discussion before his summing up, that the appellant had lied in cross‑examination about his having placed the used condom and wrapper under the seal on the inside of the door to the security van, 'this could readily be inferred from [the prosecutor's] position'. The appellant stated in his written submissions:

It is relevant that [the appellant] maintained he never put a condom in the police van ... The evidence of the police as to precisely how the condom was located, the use and whereabouts of the van itself from the time that night when the appellant was in it through to the following morning when the condom was found, and the paucity of any forensic evidence to link the condom to the appellant, was less than convincing and was not evidence that was capable of safely underscoring a factual platform upon which to base an 'Edwards lie' direction.

56 As to particulars 1.2 and 1.3 of the proposed ground, it was submitted on behalf of the appellant:

In his directions to the jury, the trial judge said it was a matter for the jury as to whether there really was a condom. His Honour summarised the evidence from the police officers and the reasons they gave for not testing the condom. He said the defence position was that the particular piece of evidence was fabricated (ts 357). However, what His Honour was required to do, but didn't, was clearly tell the jury they should be satisfied beyond reasonable doubt that there was a condom in the back of the police van and that it was put there by the appellant before they could then look to determine the nature of any lie told. (original emphasis)

... an 'Edwards direction' must make clear to the jury that they need to be satisfied of the evidence sought to be relied upon by the prosecution as underpinning the source of the lie beyond a reasonable doubt before they are able to draw any inference from it. In this regard DCJ Birmingham stated:

'You should be satisfied the condom was there and placed there by the accused' (ts 357C); and 'you can only draw inferences on facts as you find to be proved on the evidence' (ts 357D).

Even when His Honour's charge is read as a whole as to the relevant standard of proof that is required in a criminal matter, he should have clearly told the jury at that point in his summing-up referred to in par 60 above that the degree to which they must be 'satisfied' was beyond reasonable doubt.

58 At the hearing of the appeal, counsel for the appellant clarified that the proposition being advanced in relation to particular 1.1 (and, necessarily, particular 1.3) was that the evidence as to the finding of the condom and wrapper in the security van, which underpinned the lie, was 'very thin' and, as a result, his Honour had a duty to instruct the jury that it had to be satisfied beyond reasonable doubt that the condom and wrapper were in fact in the security van and that the appellant had in fact put them there (appeal ts 4 ‑ 5).

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

59 The decision of the High Court in Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193 established a number of propositions in relation to lies told by an accused. I set out these propositions in Coates v The State of Western Australia [2009] WASCA 142 [152] ‑ [158] (Martin CJ agreeing and Owen JA relevantly agreeing). It is useful, however, to reproduce them.

60 First, although the guilt of an accused must be proved beyond reasonable doubt, an alleged admission constituted by the telling of a lie may be considered with the other evidence and, for that purpose, does not have to be proved to any particular standard. See Edwards (210) (Deane, Dawson & Gaudron JJ).

61 Secondly, if an alleged admission constituted by the telling of a lie is the only evidence against the accused, or 'is an indispensible link in a chain of evidence necessary to prove guilt', then the lie (and its character as an admission against interest) must be proved beyond reasonable doubt before the accused may be convicted. See Edwards (210) (Deane, Dawson & Gaudron JJ).

62 Thirdly, and subject to the second proposition at [61] above, the tribunal of fact may find that a lie told by the accused reveals a consciousness of guilt without applying any particular standard of proof, and may conclude that, on the whole of the evidence, the accused is or is not guilty beyond reasonable doubt. See Edwards (210) (Deane, Dawson & Gaudron JJ).

63 Fourthly, a lie will not be evidence of guilt (as distinct from being merely a matter going to credit) unless it was deliberate. The accused must have told the lie because he or she knew that the truth was inconsistent with his or her evidence. It must be a lie that an innocent person would not have told and it must reveal knowledge of the offence charged or some aspect of it. The tribunal of fact may only use the lie as evidence of guilt if satisfied the accused knew that the truth would implicate him or her in the offence. See Edwards (209 ‑ 211) (Deane, Dawson & Gaudron JJ).

64 Fifthly, the lie, and the circumstances and events relied on to indicate that the lie constitutes an admission against interest, must be precisely identified. See Edwards (210 ‑ 211) (Deane, Dawson & Gaudron JJ).

65 Sixthly, the tribunal of fact must be aware (or, in the case of a jury, told) that there are many reasons why people tell lies, apart from the realisation of guilt. The tribunal of fact cannot use a lie as evidence against the accused if it accepts an explanation for the lie that is consistent with innocence. See Edwards (211) (Deane, Dawson & Gaudron JJ).

66 Seventhly, where a lie is relied on as corroboration of a witness's evidence (and not merely to strengthen the State's case), the untruthfulness of the lie must be established otherwise than by the evidence of the witness who is to be corroborated. See Edwards (211) (Deane, Dawson & Gaudron JJ).

67 In my opinion, there is no merit in the proposed ground of appeal.

68 The prosecutor emphasised, in her closing address, the appellant's conduct in allegedly placing the used condom and wrapper in the security van. She told the jury that it could rely on Senior Constable Oversby's evidence about the condom and wrapper in assessing:

(a) the credibility of M's account and the appellant's account of what had happened in the appellant's car; and

(b) whether M had consented to the sexual interaction.

69 The prosecutor did not expressly state in her closing address that the appellant's denial, in cross‑examination, that he had placed the condom and wrapper in the security van, was a lie.

70 The exchange between the prosecutor and the trial judge, in the absence of the jury, before the commencement of his Honour's summing up, related to Senior Constable Oversby's evidence about finding the condom and wrapper in the security van and the appellant having allegedly attempted to hide them in the van. This exchange did not relate to the appellant's denial in cross‑examination.

(a) It was not part of the State's case that the appellant's denial in cross‑examination was a lie told by him which revealed a consciousness of guilt.

(b) His Honour did not suggest to the jury in his summing up that the appellant's denial was a deliberate untruth of this kind.

(c) It was part of the State's case that the appellant had attempted to hide the condom and wrapper in the security van and that this conduct revealed a consciousness of guilt.

(d) His Honour gave directions to the jury in his summing up on this aspect of the State's case.

As to the legitimacy of reliance upon an accused's post‑offence conduct in support of the State's case, see McKey v The Queen [2012] NSWCCA 1 [26] (Latham J, Whealy JA & Hislop J agreeing).

72 The steps involved in reaching a conclusion that the appellant had attempted to hide the condom and wrapper in the security van out of a consciousness of guilt, were these. First, the jury had to be satisfied, on the evidence, that the appellant had placed the condom and wrapper in the van. Secondly, the jury had to be satisfied that the appellant had attempted to hide the condom and wrapper in the van out of a consciousness of guilt; that is, in the knowledge or belief that the truth in relation to the condom and wrapper would or might implicate him in the commission of one or more of the offences.

73 As to the first step, the trial judge directed the jury in effect that it was a question for it as to whether it was satisfied, on the basis of Senior Constable Oversby's evidence and in the context of the whole of the evidence given by M, the senior constable and the appellant, that the appellant had placed the condom and wrapper in the security van.

74 As to the second step, his Honour directed the jury in effect that it was the State's contention that the jury should be satisfied that the appellant had placed the condom and wrapper in the security van because of his consciousness of guilt; namely, his belief that the truth in relation to his use of the condom would implicate him in the commission of count 4 (as to which, he denied at trial having attempted to anally penetrate M) and, to a lesser extent, in the commission of the other sexual offences (as to which, he admitted in essence at trial the sexual acts but asserted that M had consented or, alternatively, that he had an honest and reasonable, but mistaken, belief that she had consented).

75 As to the second step, the trial judge also directed the jury in effect that if it found that the appellant had placed the condom and wrapper in the security van, it could not draw an adverse inference against him on the basis of the finding unless:

(a) it was satisfied that the appellant had discarded the condom and wrapper in the manner he did because of a consciousness of guilt;

(b) the inference proposed to be drawn was the only reasonable inference open;

(c) there was no other reasonable explanation for the appellant's conduct in discarding the condom and wrapper in the manner he did; and

(d) it was 'certain beyond a reasonable doubt' as to the inference proposed to be drawn (ts 358).

76 As to particular 1.1 of the proposed ground, the evidence of M and Senior Constable Oversby about the condom and wrapper, if accepted, formed a proper basis for a finding by the jury that the appellant had attempted to hide the condom and wrapper in the security van, and had done so out of a consciousness of guilt. There is no reasonable basis for inviting this court to characterise the senior constable's evidence as 'very thin'. The trial record does not indicate that his evidence was inherently incredible or unreliable.

77 When the condom and wrapper were apparently put in the security van, the appellant had not been charged. The offences in question occurred earlier that day. The appellant was unaware at that stage of the precise allegations made by M or the precise nature of the State's case against him.

(a) accepted the evidence of M and Senior Constable Oversby about the condom and wrapper; and

(b) was satisfied that the appellant had attempted to hide the condom and wrapper in the security van,

it was also open to the jury to conclude that the appellant had attempted to hide them in the van out of a consciousness of guilt; for example, because of a belief that if the condom was found by the police, and subjected to forensic testing, expert evidence may implicate him in one or more of the sexual offences.

79 The cogency of the evidence as to the finding of the condom and wrapper in the security van was a matter for the jury to consider and determine. It is not apparent from the trial record that the evidence was 'very thin'. It was open to the jury to find that the condom and wrapper were in fact in the van, and that the appellant had in fact put them there, and had done so out of a consciousness of guilt.

80 As to particular 1.2 of the proposed ground, as I have mentioned, his Honour directed the jury in effect that it was the State's contention that the jury should be satisfied that the appellant had placed the condom and wrapper in the security van because of his consciousness of guilt; namely, his belief that the truth in relation to his use of the condom would implicate him in the commission of count 4 and, to a lesser extent, in the commission of the other sexual offences.

81 The trial judge specifically and accurately identified the State's case in relation to the condom and wrapper, and the directions his Honour gave on this issue were adequate to ensure a fair trial and to avoid any perceptible risk of a miscarriage of justice.

82 It was unnecessary for his Honour to give the jury a direction in relation to the appellant's denial in cross‑examination. As I have explained, that denial was not relied on by the State as a deliberate untruth told out of a consciousness of guilt. If the jury disbelieved the denial, it was a matter relevant only to the appellant's credit. Also, if the jury disbelieved the denial then, in accordance with his Honour's directions in relation to the appellant's evidence generally, the jury would have put his evidence on this issue to one side and, on the basis of the evidence it did accept, would have decided whether the State had proved the appellant's guilt beyond reasonable doubt on any of the counts. See [47] above.

83 In these circumstances, the trial judge did not make an error in not identifying the appellant's denial in cross‑examination as a possible Edwards lie.

84 As to particular 1.3 of the proposed ground, the appellant's alleged conduct in attempting to hide the condom and wrapper in the security van was not the only evidence against him on any element of any of the counts in the indictment, and was not an indispensible link in a chain of evidence necessary to prove his guilt on any of those counts.

85 There was other evidence, on each element of each offence, probative of guilt. This other evidence included M's evidence, the video record made by the appellant of counts 1 and 2, the CCTV footage of M's escape at the service station, the content of M's calls to the emergency

number (000), the data downloaded from the appellant's and M's mobile telephones, and the evidence of Dr Penelope Yeung as to her findings upon a general physical examination of M carried out within six hours after the alleged offending.

86 It was therefore unnecessary for the appellant's alleged conduct in attempting to hide the condom and wrapper in the security van, and its character as an admission against interest, to be proved beyond reasonable doubt. It follows that the trial judge was not under a duty to instruct the jury that it had to be satisfied beyond reasonable doubt that the condom and wrapper were in fact in the van and that the appellant had in fact put them there.

87 In any event, his Honour did in effect direct the jury, in the context of the evidence about the condom and wrapper (and favourably to the appellant), that it needed to be 'certain beyond a reasonable doubt' that the appellant had attempted to hide the condom and wrapper in the security van before it could draw an adverse inference against him (ts 358).

88 The proposed ground of appeal does not have a reasonable prospect of success. The application for an extension of time to appeal against conviction should be dismissed.

At a glance

Court

Decision date

Before

Source

Judgment (112 paragraphs)

Legislation Cited (1)

Cases Cited (1)