Court of Appeal (WA)|1999-11-23|Before: Kennedy J, Ipp J, Wallwork J

Nestorov v R [1999] WASCA 303 (23 November 1999)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : NESTOROV -v- R [1999] WASCA 303

Criminal law - Evidence - Lies by accused both in and out of court - Materiality of lies - Whether directions to jury adequate

Australian Coal and Shale Employees' Federation v The Commonwealth [1953] HCA 25; (1953) 94 CLR 621

Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521

Cumming v The Queen, unreported; CCA SCt of WA; Library No 950650; 29 November 1995

Giowkos v The Queen, unreported; CCA SCt of WA; Library No 960470; 26 August 1996

Mallard v The Queen, unreported; CCA SCt of WA; Library No 960505; 11 September 1996

Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295

1 KENNEDY J: On 23 November 1999, orders were made granting the applicant leave to appeal against his conviction (to the extent that this was necessary), allowing the appeal, and directing a new trial. These are my reasons for joining in those orders.

2 The Crown relied at the trial upon what were claimed to be two lies which, it was submitted, demonstrated a realisation of guilt on the part of the applicant. The applicant claimed that the learned trial Judge's direction to the jury on the issue of lies was inadequate.

3 The relevant direction to the jury was in the following terms:

"[T]he Crown has suggested to you that lies were told by the accused and these are in two areas, notably two areas, the Crown would say: first of all, in relation to the tenancy of the property. The second lie that the Crown says was told was in the placing of the advertisement in the newspaper. The Crown's suggestion is that no such advertisement was placed by Mr Nestorov in a newspaper for a tenant.

First of all, you have got to ask yourself by reference to each of these areas, whether indeed a lie was told - a lie is a deliberate untruth; has the Crown proved to your satisfaction beyond a reasonable doubt that a lie was told, that a deliberate untruth in the area in question was told? That, by reference to the tenancy, when he spoke to the police and said that C Lovercio was renting the property, he knew or believed this to be untrue - has the Crown proved to your satisfaction beyond a reasonable doubt that he believed that to be untrue, a deliberate untruth.

If you are satisfied that a lie was told, normally it would go to the question of credit of the person who tells the lie. If a lie is told you would be entitled, in the normal way, to ask yourselves whether he is a person of credit, whether you can confidently accept what he says, always bearing in mind, of course, that it is not for him to prove anything, but nevertheless his evidence is very important.

In the case of the tenancy, if you are satisfied that a lie was told, you may of course conclude that it was a rather elaborate lie involving fictitious rental, involving fictitious rental receipts, but that is a matter for you to determine. In relation to the placing of the advertisement in the paper, did the accused lie when he said that he did so; has the Crown proved beyond a reasonable doubt that he is deliberately untruthful? You have to evaluate the evidence of the two witnesses from the two newspapers concerned and ask yourselves whether the search they made was a thorough search, did it exclude the placing of an advertisement? In all events, it is for you to determine whether a lie was told.

What you may bear in mind of course, which the Crown has pressed upon you, is that there was in reality no tenancy agreement. There was no document bearing the tenant's signature put before you and Mr Nestorov, the owner of the property never saw the tenant, but these are considerations against all the other considerations which will bear upon your deliberation upon the question."

4 The Crown Prosecutor, following the retirement of the jury, raised with the learned trial Judge the question of materiality in relation to the alleged lies. The Judge brought the jury back and further directed them in the following terms:

I should add that what you must also be satisfied of in that respect, is that the lie, if you find that to have been told, was material, that is had a sufficient relationship to the matter that was being investigated, that Mr Nestorov was being asked about; it was of significant importance, material importance to the matter being investigated. That's a matter for you to determine. Only if those two features are satisfied - that is, it was told out of a realisation of guilt and it was material to the matter under consideration - only then can the lie be taken by you to strengthen the Crown's case."

5 In relatively recent time, the extent to which the Crown can rely upon the telling of lies by an accused person has been greatly clarified. In Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193, at 209, Deane, Dawson and Gaudron JJ said:

"When the telling of a lie by an accused amounts to an implied admission, the prosecution may rely upon it as independent evidence to "convert what would otherwise have been insufficient into sufficient evidence of guilt" (Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549 at 555, per Griffith CJ) or as corroborative evidence.

But not every lie told by an accused provides evidence probative of guilt. It is only if the accused is telling a lie because he perceives that the truth is inconsistent with his innocence that the telling of the lie may constitute evidence against him (Eade v The King (1924) 34 CLR, at 158). In other words, in telling the lie the accused must be acting as if he were guilty. It must be a lie which an innocent person would not tell. That is why the lie must be deliberate. Telling an untruth inadvertently cannot be indicative of guilt. And the lie must relate to a material issue because the telling of it must be explicable only on the basis that the truth would implicate the accused in the offence with which he is charged. It must be for that reason that he tells the lie. To say that the lie must spring from a realization or consciousness of guilt is really another way of saying the same thing. It is to say that the accused must be lying because he is conscious that "if he tells the truth, the truth will convict him" (Reg v Tripodi [1961] VR, at 193)."

"Although guilt must ultimately be proved beyond all reasonable doubt, an alleged admission constituted by the telling of a lie may be considered together with the other evidence and for that purpose does not have to be proved to any particular standard of proof. It may be considered together with the other evidence which as a whole must establish guilt beyond reasonable doubt if the accused is to be convicted (see Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573). If the lie said to constitute the admission is the only evidence against the accused or is an indispensable 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 jury may conclude that the accused is guilty. But ordinarily a lie will form part of the body of evidence to be considered by the jury in reaching their conclusion according to the required standard of proof. The jury do not have to conclude that the accused is guilty beyond reasonable doubt in order to accept that a lie told by him exhibits a consciousness of guilt. They may accept that evidence without applying any particular standard of proof and conclude that, when they consider it together with the other evidence, the accused is or is not guilty beyond reasonable doubt."

"A bare direction that consciousness of guilt is required does not provide sufficient guidance as to what matters indicate its presence. Unexplained, such a direction allows the jury to decide, in the light of all the evidence, that a lie was told with a consciousness of guilt and then to use that finding to corroborate some part of the evidence that led to the finding of a consciousness of guilt.

A lie can constitute an admission against interest only if it is concerned with some circumstance or event connected with the offence (ie 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 (see M v R (unreported; SA Court of Criminal Appeal; 18 August 1993, 4-5)). 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 [footnote omitted] 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 realisation of guilt (see eg Lonergan v The Queen [1963] Tas SR 158, at 160; Broadhurst v The Queen [1964] AC, at 457). 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 recognised 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."

8 In Osland v The Queen [1998] HCA 75; (1998) 73 ALJR 173, at 183 [42] note 59, Gaudron and Gummow JJ usefully summarised the import of Edwards' case so far as was relevant to the case before them:

"[W]here a lie is relied on to prove guilt, the trial judge must first identify the lie, and the circumstances and events relied on by the Crown to indicate that it constitutes an admission against interest. Secondly, the jury must be told it may take the lie into account only if satisfied having regard to those circumstances and events, that the lie reveals the accused's knowledge of the offence charged or an aspect of it. Thirdly, the jury must be told that there may be reasons other than realisation of guilt why the accused told the lie. Fourthly, the jury should then be told that if it accepts the lie was told for a reason other than realisation of guilt, it cannot regard the lie as an admission against interest ....."

9 The more important of the alleged lies upon which the Crown relied in this case was that the applicant's property was tenanted at the material time and, implicitly, that the tenant, and neither the applicant nor his father, was in occupation of the property, that cannabis grown on the property had nothing to do with him and that he had no knowledge of it as he did not visit the property from the commencement of the tenancy until, at the earliest, the time of the police raid on the property. Associated with that alleged lie, but subsidiary to it, was the applicant's statement to the police and his evidence at the trial that he had placed an advertisement in The West Australian newspaper seeking a tenant.

10 Unfortunately, the "circumstances and events" relied upon by the Crown to indicate that the lies constituted an implied admission against the interest of the applicant were never fully articulated, and there was insufficient guidance given to the jury in explanation of the significance of the alleged lies in the context of the case. In my respectful opinion, the mere identification by his Honour of the principal lie as being "in relation to the tenancy of the property", and of the second lie as being that he advertised the property for letting, was not adequate to identify the lies and to explain their materiality. His Honour's subsequent reference to "fictitious rental involving fictitious rental receipts" did not cure the deficiency in the earlier part of his directions. Furthermore, it would have been helpful to the jury if his Honour had used the conventional direction in relation to lies, linking the accused's realisation of his guilt with his perception that the truth was inconsistent with his innocence.

11 Although the High Court in Edwards' case was not purporting to lay down any precise verbal formula to be used in all cases in which lies are relied upon to prove the guilt of an accused, that case provides a valuable and concise statement of the law which should be carefully followed unless, in the particular case, it would not be appropriate to do so. It is certainly essential for a trial Judge to ensure that the four principles summarised by Gaudron and Gummow JJ in Osland's case are included in his or her directions to the jury.

12 The evidence of the applicant was that his property was advertised in The West Australian newspaper as being available for letting. He said he thought that the advertisement had appeared on a Saturday His evidence was, therefore, somewhat vague. In my opinion, the Crown was entitled to lead evidence to the effect that there was no such advertisement in the Sunday Times in order to avoid any possible suggestion on the part of the applicant that it had appeared in the second major weekend newspaper published in Perth. The jury should, however, have been told that the applicant's alleged lie was his false claim that he had advertised his property for letting in The West Australian and that the evidence in relation to the Sunday Times had been led only in order to exclude the possibility of the advertisement having appeared in the latter newspaper. There was, obviously enough, no suggestion that the applicant had lied in relation to his publishing an advertisement in the Sunday Times. As I read his Honour's directions, his reference to the second of the two papers was simply made in relation to the evidence going to show that he had lied regarding placing an advertisement. There was never any suggestion by the applicant himself that he had placed an advertisement in the Sunday Times.

13 It is to be observed that the defence had ample notice of the intention of the Crown to lead the evidence regarding the search of the Sunday Times advertisement, but no attempt was made, either before the trial or at the trial, to exclude it. Nor was there any attempt made to have his Honour correct what was claimed in the appeal to be an error in his direction. Presumably it was accepted by the applicant's counsel at the trial that the reference to the evidence of the two witnesses related to the proof of the fact that the applicant had not advertised his property for letting. On its own, the reference by his Honour to the two newspapers could not possibly have led to any miscarriage of justice.

14 Reference should also be made to the applicant's complaint regarding his Honour's direction to the jury when, having directed them on the facts which the Crown alleged circumstantially proved its case, and having himself listed some factual matters, he suggested to the jury that there might be other factual matters which they might think to be relevant. There was some evidence in this case, particularly in relation to the identities of persons seen on the property, on which it could well have been unsafe to rely, and the jury should have been cautioned regarding any use that they might have made of that evidence. In the circumstances, however, it is unnecessary to say anything further about this aspect of the case.

15 There was no argument addressed to this Court that, in the event of the appeal being allowed, a verdict of acquittal should have been entered. In my opinion, there was a substantial prima facie case against the applicant, and, the appeal succeeding in relation to the learned trial Judge's directions, it was appropriate to order a new trial.

16 IPP J: I have read the reasons to be published by Kennedy J. I am in agreement with those reasons and have nothing further to add.

17 WALLWORK J: The appellant was charged and convicted after a trial before a jury of an offence that between 1 January 1993 and 4 March 1994 at Gidgegannup and elsewhere, he conspired with Trajkos Giowkos to cultivate a quantity of cannabis plants with intent to sell or supply cannabis to another. He now appeals against that conviction.

18 The principal ground of appeal concerns the direction which was given by the learned trial Judge concerning alleged lies which had been told by the appellant.

19 In opening the case for the prosecution, counsel told the jury that on 4 March 1994, police officers had executed a search warrant at a property at Gidgegannup. The police officers had found a large cannabis crop on the property comprised of more than 1700 plants which were close to maturity. The crop had been fenced, fertilised and irrigated. Had it been sold, it was estimated that it would have realised something in the order of between half a million and a million dollars. The police officers had found the appellant's father on the property at the time they executed the warrant. His name was Trajkos (or Tom) Giowkos. They had also found a transportable home on the property and a Hilux utility, a tractor and an air rifle. They had later ascertained that the appellant had bought the property in February 1993.

20 The learned prosecutor told the jury that the appellant's father had inspected the property before the appellant had bought it. The prosecution alleged that from the outset it had been the intention of the two men to cultivate cannabis. It was alleged that the appellant had bought the transportable home in June 1993. He had arranged for it to be put on the Gidgegannup property to enable his father to live there while the father looked after the crop. The appellant had paid a total of $14,500 or a little more than that for the home. In July 1993 the appellant and his father bought a tractor. They were both together when it was purchased. It had been the appellant who had paid the price of $8500. The learned prosecutor told the jury that on 29 November 1993 the appellant had been present on the site when the transportable home was inspected by a Shire building surveyor.

21 At the hearing of this appeal, it was said by counsel for the appellant, that there had been no evidence that it was the appellant who had been present on the site. The evidence on this question had been that there had been a younger man than the appellant's father present when the transportable home had been inspected.

22 It was further alleged by the prosecution that the appellant had been present when a trench digging machine which he had hired, had been used to dig a trench from a shed at the rear of the property to a power box at the front of the property. It was also alleged that between December 1993 and March 1994, when the crop was discovered, neighbours had observed activity at the site involving two men. It was alleged that the appellant and his father had been the two men. It was further said that on 2 February 1994, the appellant had had a Diana air rifle added to his firearm licence. That had been found in the custody of his father at the crop site on 4 March.

23 The learned prosecutor told the jury that when the appellant had been interviewed on video after the discovery of the cannabis, he had maintained that he did not know that his father had been growing cannabis on the Gidgegannup property. He had admitted that he had known his father was there. A rent receipt book had been found which the appellant admitted was his. That revealed that he had made out four receipts for a bond and rent to a C Lovercio.

24 The learned prosecutor told the jury that the appellant had told the police that he had bought the property as an investment intending to lease it. That he had put an advertisement in The West Australian for a tenant. He had told the police that he had never met Mr C Lovercio, but that his father had given him the rent payments. He had given the rent receipts to his father. The Crown alleged that there had been no tenancy at all and that it was a fiction.

25 The learned prosecutor told the jury in opening that the Crown contended that the jury, having assessed all the circumstances, could be satisfied beyond a reasonable doubt that there had been a conspiracy between the appellant and his father to cultivate cannabis on the property at Gidgegannup.

26 In addition to other evidence the Crown called evidence to the effect that a person from The West Australian newspaper had been unable to find any record of a relevant tenancy advertisement. A witness had also been called from the Sunday Times to the same effect. It was submitted for the appellant on the appeal that that last mentioned evidence was irrelevant because the appellant had never said he had put an advertisement in the Sunday Times.

27 The Crown called evidence that a person called Ms Louisa Lovercio had worked with the appellant at Masters Dairy for some years. She told the jury that she had never been to Gidgegannup, nor leased a property there. Ms Lovercio told the jury that Mr Carmello Lovercio and a C Lovercio had no connection with the property to her knowledge.

28 At the conclusion of the prosecution evidence, the appellant gave evidence and said that he was 31 years of age. He lived at a property in Main Street, Balcatta, which was owned by his mother. He had grown up in Geraldton where he had lived until he was approximately 18 years of age. His father had then been convicted of cultivating a crop of marijuana. That offence had occurred on a farmlet owned by his father and mother. His father had been sentenced to a term of 9 years in prison and the farm in Geraldton had been seized by the Crown and sold. Ultimately the appellant's mother had received one-half of the proceeds of the farm. She had come to Perth and bought the home at Balcatta. At that time the appellant had been studying accountancy at TAFE. Thereafter the family had needed an income and he had had to find work. He had obtained work as a courier and then employment at Masters Dairy. The effect of his father's imprisonment had been devastating. He had a young sister and a younger brother.

29 The appellant said that when his father had come out of prison, he and his father had decided to purchase the farm. The farm had been registered in the appellant's name. He had put down a deposit of $10,000. He was then still working at Masters Dairy and earning about $650 a week. He was working six days a week. He usually had a Saturday or a Sunday off. He said he had intended obtaining a tenant for the farm to obtain some sort of income to help with the mortgage repayments. His long-term plan had been to keep the farm for his children. He had put an advertisement in the newspaper for a tenant. Because he had been working six days a week and between 12 and 14 hours a day, nearly two shifts a day, he had not had the time or energy to organise the tenant. His father had found the tenant whose name was C Lovercio. That was the name his father had given him.

30 The appellant said that the utility which had been found on the property was registered in his name. His mother had initially purchased that vehicle for him when his father had been imprisoned. She had bought it for him to go to work. She had not wanted it in her name or his father's name, so she had given it to him. The appellant said he had not been at the property when the transportable home had been delivered. His father had been there. He did not know who had been with his father. It might have been his younger brother.

31 The appellant said that the last time he had been on the property had been about the end of November 1992. He had purchased an air rifle for his father because his father told him he was having problems with birds attacking the fruit trees he had planted on the farm. His father had given him $600 from Mr C Lovercio and every week after that $150 a week. The appellant would write out the receipts and his father would collect them.

32 The appellant said that in early 1994 his mother and father had had an argument because his mother had found marijuana growing in the back yard. She had gone "ballistic". The appellant had then thought his father might be growing marijuana on the farm. He had tackled his father about whether he had been growing cannabis on the farm. His father had assured him that he was not doing that. However, he had still been suspicious. He had intended to make arrangements for holidays and to go up to the farm and have look. He had not done that. On 4 March 1994, the police had come. That had only been two or three weeks after the argument between his mother and his father about the marijuana in the back yard. After the police had come, he had been interviewed by them for several hours.

33 In cross-examination the appellant denied that he had been involved in any activity on the farm involving sprinklers. He said he had not been on the farm after the transportable home had been installed there. He had never met Mr Lovercio. He said he had put an advertisement in The West Australian. When asked why there was no record of that he said that maybe the name had not been spelt correctly. Also they had changed their telephone number over the years. He had not told that to police because he had only answered the questions which they had directed at him. He said that not only had his father been using the utility, but so had his brother and sister. His mother would not allow the utility to be put in his father's name because of what had happened in Geraldton.

34 The appellant said he had never met Mr C Lovercio and he had not signed a lease agreement. He had had no reason to meet the tenant. His father had been going up to the property to have a look at the situation. He, the appellant, had been working 14 hours a day, six days a week. All the contact with the tenant had been made by his father. His mother had told his father to pull the marijuana plants out of their backyard when she had found them. The appellant had pulled the plants up, put them in a vehicle and taken them to his sister's house.

35 The appellant was asked why he had left the plants in his back yard for two or three weeks. He said he had not wanted to make the situation worse. The situation was bad, tense. He was asked whether he had only removed the plants because his father had said "They're on to me. Pull them out". The cross-examination concerning those plants went on for some time. He was asked how many cannabis plants had been in the backyard. He said he thought he was told 60.

36 I note in passing that that evidence about the appellant pulling plants up from of the backyard and taking them away had very little to do with this charge. In my view it should not have been emphasised in such detail at the trial. However, that is in passing.

37 It was put to the appellant that right from the outset, he and his father had had a plan to grow cannabis. He denied that. He said when he had found the cannabis plants in the back yard he had been suspicious about his father. He said his father had assured him that he would never do anything like that again.

38 The appellant was cross-examined on the basis that he had not put an advertisement in The West Australian or indeed in the Sunday Times in relation to the rental. I note that the appellant had not said that he had put an advertisement in the Sunday Times in relation to the rental.

39 The appellant said that he had understood that there was a tenant on the property. It was put to him that he had not received the rent from his father. He said he had.

40 In his summing-up the learned Judge told the jury that the Crown had to prove that the appellant had agreed with his father Trajkos Giowkos to cultivate cannabis. Also that when the appellant had entered into the agreement, he had known and understood the fundamental object of the alleged agreement which had allegedly been to carry out the unlawful act of cultivating cannabis with intent to sell or supply it to another and that he had intended that that should be carried into effect. His Honour told the jury that there had to be a concluded agreement between the two men to go ahead and to do what was necessary to effect the unlawful purpose.

41 The learned Judge told the jury that to prove the agreement the Crown had put a number of acts on the part of the accused before them. First of all, attention had been drawn to the father and son relationship. Secondly, the Crown had pointed to the buying of the property at Gidgegannup and the part taken by the accused and his father in that. Thirdly, there had been the buying and supplying of a transportable home by the appellant. Then the buying and supplying of the tractor with a rotary hoe attachment at a cost of about $8500. Then there was the Hilux utility which had been found at the property. There was the fact that the appellant had bought an air gun for which he had a licence. That the appellant had seen no fruit trees on the property and that the air gun had been in the possession of his father. A trench ditch digging machine had been hired. The Crown had asked the rhetorical question "for what purpose would that have been hired if not to cultivate the cannabis plants which were ultimately found upon the property?"

"As I say, you put all the facts you find to be proved together. There may be others that you think are relevant. You may think that some of these have not been proved. But you put them all together in one basket, so to speak, or perhaps as strands of rope, as Mr Dempster has suggested to you. You put them all together and you ask yourselves whether the only conclusion that can reasonably be reached, the almost irresistible conclusion, is one that the accused entered into an agreement with his father Giowkos to cultivate a quantity of cannabis with intent to sell or supply it to another. Consider this also - and the Crown has made some point of it - the Crown has suggested to you that lies were told by the accused and these are in two areas, notably two areas, the Crown would say; first of all, in relation to the tenancy of the property. The second lie that the Crown says was told was in the placing of the advertisement in the newspaper. The Crown's suggestion is that no such advertisement was placed by Mr Nestorov in a newspaper for a tenant. First of all, you have got to ask yourselves by reference to each of these areas, whether indeed a lie was told - a lie is a deliberate untruth; has the Crown proved to your satisfaction beyond a reasonable doubt that a lie was told? That a deliberate untruth in the area in question was told? That, by reference to the tenancy, when he spoke to the police and said that C Lovercio was renting the property, he knew or believed this to be untrue - has the Crown proved to your satisfaction beyond a reasonable doubt that he believed that to be untrue, a deliberate untruth. If you are satisfied that a lie was told, normally it would go to the question of credit of the person who tells the lie. If a lie is told you would be entitled, in the normal way, to ask yourselves whether he is a person of credit, whether you can confidently accept what he says, always bearing in mind, of course, that it is not for him to prove anything, but nevertheless his evidence is very important.

But in a limited number of cases, a lie may be said to strengthen the Crown's case. If the Crown has proved beyond a reasonable doubt that a lie was told out of a realisation of his guilt, then, and only then, may it be said that the Crown's case is strengthened by the telling of that lie. If the lie were told, however, because the accused felt trapped, or felt that he had to give some explanation because he would not otherwise be believed, that is not a lie being told out of a realisation of guilt. It is only if he tells a lie out of a realisation of guilt - and this is something you have to determine - that the lie may be said to strengthen the Crown's case. In the case of the tenancy, if you were satisfied that a lie was told, you may of course conclude that it was a rather elaborate lie involving fictitious rental receipts, but that is a matter for you to determine. In relation to the placing of the advertisement in the paper, did the accused lie when he said he did so? Has the Crown proved beyond a reasonable doubt that he is deliberately untruthful? You have got to evaluate the evidence of the two witnesses from the two newspapers concerned and ask yourselves whether the search they made was a thorough search. Did it exclude the placing of an advertisement? In all events it is for you to determine whether a lie was told. What you may bear in mind of course, which the Crown has pressed upon you, is that there was in reality no tenancy agreement. There was no document bearing the tenant's signature put before you and Mr Nestorov, the owner of the property, never saw the tenant, but these are considerations against all the other considerations which will bear upon your deliberation on the question".

43 In my view, his Honour's direction concerning alleged lies did not comply with the words of Deane, Dawson and Gaudron JJ in Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193 at 209 where their Honours said:

"And the lie must relate to a material issue because the telling of it must be explicable only on the basis that the truth would implicate the accused in the offence with which he is charged."

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 realisation 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 recognised 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."

45 When the learned Judge in this case said "If the lie were told, however, because the accused felt trapped or felt he had to give some explanation because he would not otherwise be believed, that is not a lie being told out of a realisation of guilt", that in my view was not sufficient to accord with the direction of the learned Judges in the High Court that:

"... the jury should be instructed that there may be reasons for the telling of a lie apart from the realisation 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".

46 Neither did the learned Judge tell the jury that the lie should be precisely identified as should the circumstances and events that are said to indicate that it constitutes an admission against interest. 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.

47 After the jury had retired the learned prosecutor raised with the Judge that he did not think the learned Judge had mentioned that the lie "must be a material matter." His Honour asked the jury to return and said to them:

"I told you that if you are satisfied a lie was told, in some circumstances, limited circumstances, that lie could strengthen the Crown's case and I explained to you that if the Crown has proved that the lie was told out of a realisation of guilt, then it may be taken by you to strengthen the Crown's case. I should add that what you must also be satisfied of in that respect, is that the lie, if you find that to have been told, was material, that is had a significant relationship to the matter that was being investigated, that Mr Nestorov was being asked about. It was of significant importance, material importance to the matter being investigated. That's a matter for you to determine. Only if those two features are satisfied - that is, it was told out of a realisation of guilt and it was material to the matter under consideration - only then can the lie be taken by you to strengthen the Crown's case...."

48 His Honour told the jury that they would understand that a lie is a deliberate untruth and that they must be satisfied in the first place, of course, beyond a reasonable doubt, that it was a deliberate untruth before they could then go on to consider the next two considerations - that is, whether it was told out of a realisation of guilt, and secondly, whether it was material to the investigation.

49 In Osland v The Queen [1998] HCA 75; (1998) 73 ALJR 173 at 183, a footnote to the reasons of Gaudron and Gummow JJ reads in part:

"So far as is presently relevant, it was held in Edwards that, where a lie is relied on to prove guilt, the trial Judge must first identify the lie, and the circumstances and events relied on by the Crown to indicate that it constitutes an admission against interest. Secondly, the jury must be told it may take the lie into account only if satisfied, having regard to those circumstances and events, that the lie reveals the accused's knowledge of the offence charged or an aspect of it."

50 In this case, in my opinion, it was not sufficiently explained to the jury that it could take a lie into account only if satisfied that any lie revealed the accused's knowledge of the offence charged or an aspect of it.

51 There was another matter in the direction in this case concerning alleged lies which is of concern. That was the reference to the evidence concerning the "two newspapers concerned". The accused had never said that he had placed an advertisement in the Sunday Times.

52 In my view, having in mind the errors in the direction as to how any lie (if the jury was satisfied that one had been told) could have been used to implicate the appellant, and also bearing in mind the references at the trial to an advertisement in the Sunday Times, and the prejudicial effect of the evidence concerning the cannabis plants in the back yard (which was not relied on at the appeal but which in my view is important), the relevant law in this case was not correctly explained to the jury. The rules of procedure and evidence were not strictly followed.

53 In Leary v R [1975] WAR 133 at 137, Jackson CJ said:

"It was submitted for the Crown that notwithstanding any defects and irregularities in the trial which we might consider had occurred, the verdict should stand as there has been no substantial miscarriage of justice. I cannot agree with this. It is probably true that not each matter raised in the grounds of appeal would call for the convictions to be set aside; but taken together they lead to the conclusion, in my opinion, that the applicants have not had in all respects the fair trial to which the law entitles them. An 'aggregate of faults' may properly lead to a conclusion that a trial as a whole has miscarried: R v Ireland [1970] HCA 21; (1970) 126 CLR 321 at 331; (1970) ALR 727."

54 In Mraz v The Queen [1955] HCA 59; (1955) 93 CLR 493 Fullagar J said at 514, when commenting on the proviso to s 6(1) of the Criminal Appeal Act 1912:

"It ought to be read, and it has in fact always been read, in the light of the long tradition of the English criminal law that every accused person is entitled to a trial in which the relevant law is correctly explained to the jury and the rules or procedure and evidence are strictly followed. If there is any failure in any of these respects, and the appellant may thereby have lost a chance which was fairly open to him of being acquitted, there is, in the eye of the law a miscarriage of justice. Justice has miscarried in such cases, because the appellant has not had what the law says that he shall have, and justice is justice according to law. It is for the Crown to make it clear that there is no real possibility that justice has miscarried."

55 For the above reasons and on 23 November 1999, I agreed that the appeal should be allowed, the conviction and the sentence based thereon be quashed and a new trial ordered.

Nestorov v R [1999] WASCA 303

At a glance

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Judgment (90 paragraphs)

Nestorov v R [1999] WASCA 303 (23 November 1999)

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Legislation Cited (1)

Cases Cited (11)