Supreme Court of SA|2002-07-23|Before: Gray J

R v ANDREWS No. SCCRM-00-25, SCCRM-00-26 [2002] SASC 233 (23 July 2002)

CRIMINAL LAW --- PARTICULAR OFFENCES --- OFFENCES AGAINST THE PERSON --- HOMICIDE --- MURDER CRIMINAL LAW --- APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION --- APPEAL AND NEW TRIAL --- PARTICULAR GROUNDS --- IMPROPER ADMISSION OR REJECTION OF EVIDENCE CRIMINAL LAW --- APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION --- APPEAL AND NEW TRIAL --- PARTICULAR GROUNDS --- MISDIRECTION AND NON-DIRECTION CRIMINAL LAW --- APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION --- APPEAL AND NEW TRIAL --- PARTICULAR GROUNDS --- UNREASONABLE OR INSUPPORTABLE VERDICT

Edwards v R [1993] HCA 63; (1993) 178 CLR 193;

Walton v R [1989] HCA 9; (1989) 166 CLR 283, applied.

R v Matthews (1990) 58 SASR 19;

R v Von Einem (1985) 38 SASR 207, discussed.

VGLR v The Queen [2002] HCA 25;

Festa v The Queen (2001) 76 AIJR 291;

Azzopardi v R [2001] HCA 25; (2001) 75 ALJR 931;

Zoneff v R (2000) 200 CLR 234;

R v Grosser [1999] SASC 302; (1999) 73 SASR 584;

Domican v The Queen (1992) 173 CLR 555;

Harris v R (1990) 55 SASR 321;

R v Byron (1988) 145 LSJS 141;

R v Hendrie (1985) 37 SASR 581;

Mraz v The Queen [1955] HCA 59; (1955) 93 CLR 493, considered.

Gray J (dissenting) - lies said to arise out of a consciousness of guilt relied upon by Crown - lies included the reason the appellant left the deceased's home in the middle of the night, the reason for his return early the next morning, the way in which he entered the deceased's home, the location of the deceased's handbag before and after her death, anal sex, the appellant's esoteric knowledge, his contact with the deceased on her bed and the marks and injuries on his body - in accordance with Edwards v The Queen the judge should have precisely identified each lie and the circumstances said to indicate that the lie constituted an admission against interest - judge did not identify each lie and also incorrectly referred to a lie that the Crown did not seek to rely upon as an admission against interest - necessary to relate directions to the facts - judge's direction did not identify the means by which the jury might assess whether each lie was told out of a consciousness of guilt - number of possible explanations for the lies - lies direction inadequate and fell far short of what was required - whether proviso should be applied to uphold appellant's conviction - whether prejudice occasioned by inadequate direction - cannot be said that appellant had fair trial - risk of a miscarriage of justice in this case - there should be a new trial.

Criminal Law Consolidation Act 1935 (SA) s353(1);

Cross on Evidence 6th edition , referred to.

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

Zoneff v The Queen (1999-2000) 200 CLR 234;

R v Grosser [1999] SASC 302; (1998-99) 73 SASR 584;

R v Laz [1998] 1 VR 453;

Harris v The Queen (1990-91) 55 SASR 321;

R v Sutton (1986) 5 NSWLR 697;

R v Heyde (1990) 20 NSWLR 234;

R v Webb and Hay (1992) 59 SASR 563;

Driscoll v The Queen [1977] HCA 43; (1976-1977) 137 CLR 517;

Mraz v The Queen [1955] HCA 59; (1954-56) 93 CLR 493;

Domican v The Queen (1991-1992) 173 CLR 555;

Festa v The Queen (2000) 76 ALJR 291;

The Queen v Ugle [2002] HCA 25;

White v The Queen (1998) 125 CCC (3d), considered.

Counsel: MS EF NELSON QC - Solicitors: DOWNS & ROBIN

Counsel: MS P KELLY - Solicitors: DIRECTOR OF PUBLIC PROSECUTIONS (SA)

Judgment No. [2002] SASC 233

(Court of Criminal Appeal: Doyle CJ, Prior and Gray JJ)

Court of Criminal Appeal: Doyle CJ, Prior and Gray JJ

DOYLE CJ: Mr Andrews was convicted of murder on the verdict of a jury. He appeals against that conviction.

He was charged with murdering Christine Jenkins on 18 December 1994. The verdict was returned on 11 April 1996. It is not necessary to go into the circumstances that led to the Court extending the time for the institution of this appeal, which was not instituted until an application for leave to appeal was filed on 9 February 2000. The delay since then has been largely attributable to the fact that for a considerable time Mr Andrews did not have legal representation.

Mr Andrews and Ms Jenkins had been in a relationship over some time. The Judge described the relationship to the jury as "unstable". There were periods when they lived together, and periods when they lived apart. There had been some acrimonious exchanges between them. Apparently they had got back together on the Thursday before Ms Jenkins was killed.

Ms Jenkins lived at Ferryden Park with her two young children. Mr Andrews lived about four kilometres away at Pennington.

On the evening of Saturday 17 December Ms Jenkins, her two children and Mr Andrews went to a party at a house near her home. They left the party together between about 2.30am and 3.30am on Sunday 18 December.

On Sunday 18 December about 6.15am Mr Andrews telephoned a mutual friend to say he could not wake Ms Jenkins up. Shortly after that he went to a neighbour's house, and said much the same thing to her. She returned to Ms Jenkins's house with Mr Andrews. Ms Jenkins was lying on her back on her bed, semi-naked. She was dead.

The evidence indicated that she had been strangled manually in the early hours of the morning. The time of death was estimated at about 4am, but could have been three hours either side of that time. The evidence also suggested, without being definitive, that she had been penetrated vaginally and anally about the time of her death. Bruising on the body suggested a struggle associated with the strangling.

The prosecution case against Mr Andrews was circumstantial.

Mr Andrews left the party with Ms Jenkins, and on all the evidence was the last person to see her alive, unless another person killed her. There was no sign of forced entry to her house. Mr Andrews was the only person other than Ms Jenkins who had a key to the house. The state of the body, and the possible vaginal and anal penetration, suggested a sexual motive. There was nothing to suggest theft or any other motive. I have already referred to the relationship between them. There was also evidence that Mr Andrews was jealous and possessive in relation to Ms Jenkins. There was evidence that Ms Jenkins had recently told two different friends that Mr Andrews engaged in anal intercourse with her, and she did not like this, and that he made greater sexual demands of her than she liked. A magazine questionnaire found by police in Mr Andrews's home, that he had completed, suggested that he was interested in anal intercourse. Mr Andrews gave an account of his movements on the morning that was not convincing. He gave somewhat different accounts to different people. He told some people that he and Ms Jenkins had argued on the night of her death. The prosecution suggested that he lied in the course of giving inconsistent accounts about his movements, in denying an interest in anal intercourse, in the explanations that he gave for scratch marks and abrasions on his face and body, and in statements he made about the whereabouts of Ms Jenkins's handbag. These were put to the jury as a basis for inferring guilt. The prosecutor also pointed to various inconsistencies in Mr Andrews's evidence.

The defence case attempted to explain, answer and negative these points. Other points made were that there was no evidence of violence in the relationship, and that there were other men in Ms Jenkins's life who might have killed her. Mr Andrews said that he left her in the early hours of the morning. She was lying on her bed watching television. He walked home, later went back to her home and found her apparently dead, and then contacted the persons referred to earlier. Mr Andrews denied to the police any interest in anal intercourse. He denied that he ever had anal intercourse with Ms Jenkins.

The Judge admitted evidence from Mr Doroschenko that shortly before her death Ms Jenkins told him that Mr Andrews made her submit to anal intercourse, that she did not like that, and that she thought he was "too sexually active". He admitted evidence from Ms Allen that Ms Jenkins told her shortly before her death that she and Mr Andrews had split up because Ms Jenkins did not like anal sex.

If the jury accepted that these statements were made and were truthful, they were capable of establishing that Ms Jenkins did not like anal intercourse, and would be reluctant to submit to it. This would provide a basis for an inference that this was the origin of a struggle between her and Mr Andrews in the course of which she was killed. Of course, that would depend upon the jury inferring that Mr Andrews was likely to try to make her submit to anal intercourse. I should add that the prosecution case was not tied to the establishment of this motive. It was put to the jury that quite apart from this there was adequate evidence from which guilt could be inferred.

"Relevant to that relationship also was the evidence of Doroschenko and Vicki Allen that the deceased spoke to them about her attitude to anal sex. That particular evidence was admitted only to show her attitude and that she was unlikely to consent to anal sex and for no other purpose. You certainly must not infer therefrom that the accused was of bad character or jump to any conclusions that he was the culprit."

The Judge did not warn the jury not to use these statements as evidence that Mr Andrews did like anal intercourse, and had caused Ms Jenkins to submit to it.

The evidence was admissible. It was relevant for the prosecution to prove that Ms Jenkins would not readily submit to anal intercourse. This was relevant because of the post mortem findings suggesting anal intercourse, and because of the evidence suggesting Mr Andrews would seek anal intercourse despite his denial of interest in or engagement in anal intercourse. As I have already said, if the jury accepted the prosecution suggestion, and accepted that Mr Andrews might try to make Ms Jenkins submit to anal intercourse, that would provide a likely explanation for a struggle in which she was killed.

When the state of mind or attitude of a person is relevant in proceedings, authority establishes that witnesses may give evidence of statements made by the person in question if those statements might establish the person's state of mind or attitude. If this were not permissible, there would be many situations in which a person's state of mind or attitude would be relevant, but it would not be possible to establish what the state of mind or attitude was.

In Walton v R [1989] HCA 9; (1989) 166 CLR 283 at 288, Mason CJ stated the applicable principle in the following terms:

"The hearsay rule applies only to out-of-court statements tendered for the purpose of directly proving that the facts are as asserted in the statement. Generally speaking, evidence of out-of-court statements relied on for another purpose is not excluded by the rule. Thus, evidence of a relevant out-of-court statement is admissible evidence of the maker's knowledge or state of mind when he made the statement in a case where such knowledge or state of mind is a fact in issue or a fact relevant to a fact in issue ...".

To a like effect see Wilson, Dawson and Toohey JJ in Walton at 300-302. Evidence of the out-of-court statement may be given by a witness to the making of the statement:

"Even when the testimony proffered is not that of the maker of the statement, but that of a person who heard the author make the statement, it is original evidence. It is because the making of the statement has independent evidentiary value in proving the author's intentions, those intentions being a fact in issue or a fact relevant to a fact in issue, that the witness's testimony does not infringe the hearsay rule." (Walton at 289, Mason CJ)

As Mason CJ says, the making of a statement may have "independent evidentiary value" in proving the author's state of mind or attitude, as well as, or apart from, the author's intention. Alternatively, it may be regarded as conduct from which an inference can be drawn: see Walton at 300, Wilson, Dawson and Toohey JJ, and R v Hendrie (1985) 37 SASR 581 at 585, King CJ.

Evidence of out-of-court statements may be admitted for the purpose of establishing the maker's attitude to a particular practice, where that is a fact in issue or a fact relevant to a fact in issue. In R v von Einem (1985) 38 SASR 207 at 209, King CJ stated:

"The first ground of appeal which was argued related to certain evidence which was led by the prosecution designed to establish that the deceased did not have homosexual inclinations and that his attitude was adverse to homosexuality. ... I think that it was relevant to prove that the deceased did not have homosexual inclinations and that his attitude was adverse te [sic] homosexual practices. ... The absence of homosexual inclinations and attitudes on the part of the boy rendered more probable the theory that he had been forcibly abducted as against the theory that he had voluntarily accompanied the appellant."

The deceased's statements in the present case are admissible for a similar purpose, namely to establish that she would not have willingly submitted to anal intercourse with the appellant.

It is not necessary to decide if the admission of such evidence is an exception to the hearsay rule, or outside the hearsay rule because the statements of the person in question are not used to prove a fact asserted or implied by the maker of a statement, other than that person's state of mind or attitude: see Mason CJ in Walton at 288-289.

Accordingly, this evidence was admissible to prove that Ms Jenkins was unlikely to submit willingly to anal intercourse. It was not admissible to prove the assertions made by her that Mr Andrews had had anal intercourse with her in the past, or that he had made excessive sexual demands of her in the past.

In R v Matthews (1990) 58 SASR 19, the evidence of witnesses to statements made by the deceased was held admissible for the limited purpose of proving the deceased's state of mind in relation to the appellant. In particular, the evidence suggested that the deceased feared the appellant, and was evidence from which it could be inferred that she was unlikely to have consented to sexual intercourse with him. Bollen J said (at 32):

"Be it original or hearsay the statements of the deceased here challenged were admissible to prove her state of mind. The evidence of those people who could give evidence of her utterances which suggested fear and a wish not to see the appellant was admissible. The evidence was not admissible to prove any assertion of fact in the utterances of the deceased. They were admissible "on" each charge. On each charge the fact of the state of the deceased's mind was relevant. She was unlikely to have consented to intercourse in her state of mind. She was unlikely to receive the appellant at her home, suggest that they have intercourse, participate willingly in intercourse and when it was concluded say (as the appellant suggested): 'You might just as well come and take the lot and me with it'."

In the present case, the statements of the deceased to the witnesses had evidentiary value limited to proving the deceased's state of mind in relation to the appellant, in particular in relation to whether she would willingly submit to anal intercourse with him.

It would have been better if the Judge had told the jury specifically that they could not use the evidence to establish the assertions made by the deceased about Mr Andrews's conduct or inclinations, although it needs to be borne in mind that there was no suggestion made to them that they could. Indeed, the prosecutor specifically told the jury that they must not use this evidence to infer that Mr Andrews wished to or did engage in anal intercourse with Ms Jenkins.

It follows that the Judge rightly admitted the evidence. Its prejudicial effect did not outweigh its probative value. The evidence was by no means conclusive, but that was not a reason to exclude it. In the circumstances, the direction was adequate.

Mr Andrews was a suspect from the beginning of the police investigation. He had several conversations with investigating police on Sunday 18 December and on Monday 19 December. At no stage was he under arrest. He willingly cooperated with the police. He told them that he wanted to help them in their investigation of the death of his girlfriend.

During each of several recorded conversations with the investigating police he was warned that he need not answer any questions, and told that they were investigating a murder.

At some stage on 18 December the police went to his home, examined what was there, and made a search. Mr Andrews agreed to this. On this occasion they observed some magazines, but did not seize any. They seized some of Mr Andrews's clothing. It is important to bear in mind that this was a very early stage of the investigation.

On 19 December Mr Andrews came to the police station of his own volition. By now the police had more information. I should also mention that at this early stage they were considering other possible suspects as well. The police interviewed him at some length.

I understand that on 19 December the police told Mr Andrews that they wanted to see if there were any items at his home that had been taken from Ms Jenkins's house, and to check for fibres. There may have been a glancing reference to looking for other things. While at the house they did conduct a further search, no objection being made by Mr Andrews. In the course of the search they seized a magazine that they had looked at on the Sunday. I gather that on the Monday they noticed that he had filled in a questionnaire in the magazine in a manner that suggested that he had an interest in anal intercourse.

The complaint at trial was that the evidence should be excluded on the grounds of unfairness. It was submitted that Mr Andrews was not told that he was a suspect, was not told that the police intended to make a general search, and was not told that they wanted the magazine in particular.

It may well be that Mr Andrews was not told in terms that he was a suspect. It should have been obvious, I consider, that he was under suspicion. A search of sorts had been made at his home on the Sunday, and the police had taken his clothes. He had been asked a lot of questions. There is no suggestion that Mr Andrews had any objection to the police conducting a search. The aspect of the magazine that was of particular interest to the police was not known to them until the Monday. It was not suggested to the Judge that the police had deliberately misled Mr Andrews. The police were in possession of a general search warrant which they could have used, had there been any occasion to do so.

I am unable to find any unfairness in this. Mr Andrews was at all stages saying that he was willing to cooperate. He must have known that he was a suspect. He knew that the police were investigating a serious crime. There was no deliberate deception. At most there might have been some misunderstanding as to the extent of the search that the police were going to make. The police could have relied upon a general search warrant had they wished. They did not need Mr Andrews's consent.

In my opinion the Judge rightly admitted the evidence.

Although the defence case was that Mr Andrews had nothing to do with Ms Jenkins's death, the Judge gave the jury a direction about manslaughter.

No doubt that direction was given in the light of the fact that, on the evidence, it was possible that the person who strangled Ms Jenkins (there was no dispute that death was caused by strangulation) did not intend to cause death or serious bodily harm. It is relevant to bear in mind that Ms Jenkins was a small woman, about five feet two inches high and weighing only 47 kilograms. On the other hand the medical evidence was that to cause death would have required pressure to her neck for between two minutes and three minutes, although that pressure need not have been continuous. Ms Jenkins could have lost consciousness much more quickly. Scratches and bruises on her body suggested that there had been a struggle, although as I read the evidence the circumstances did not suggest a violent struggle, or that she had been severely beaten.

The complaint is that although the Judge directed the jury about manslaughter, he effectively removed a verdict of guilty of manslaughter from the jury's consideration.

Early in his directions to the jury the Judge said:

"There is no need in this case for me to dwell on the law relating to murder because you will probably have no difficulty in deciding, although it is a matter for you, that Mrs Jenkins was murdered.

The more critical question for you will be whether the Crown has proved beyond reasonable doubt that the accused was the culprit.

As the presiding judge, I have also to give you a direction about manslaughter. A verdict of guilty of manslaughter is always technically open although neither counsel has suggested it in this case."

The Judge then gave the jury directions about the elements of manslaughter. Ms Nelson QC, counsel for Mr Andrews, makes the point that the Judge suggested to the jury that murder was the likely conclusion, and spoke of manslaughter as only "technically open". She says that from the outset he played down the possibility of manslaughter. Later the Judge returned to the topic, and having reminded the jury of the elements of manslaughter said:

"However, ladies and gentlemen, if you are satisfied beyond reasonable doubt that it was the accused who strangled the deceased, you will remember, no doubt, the evidence of Dr Gilbert, about what the culprit must have done and I imagine if you are satisfied the accused strangled the deceased, you would have no difficulty in deciding that he intended to cause her really serious bodily harm, even if you have a doubt about whether he intended to kill her.

If that is your view, it would be quite wrong to convict of manslaughter because in that event he would be guilty of murder.

As I said to you yesterday, you have a two-fold duty; a duty to the accused and a duty to the community.

If the evidence leaves you in any reasonable doubt about the guilt of the accused you must, of course, acquit and you would be failing in your duty to him if you did not do so.

On the other hand, you have a duty to the community. If you are satisfied beyond reasonable doubt that the accused did strangle the deceased with the intent at least of causing her really serious bodily harm, your verdict will be guilty of murder."

Shortly after this the jury retired. As a result of submissions by counsel, the Judge brought the jury back for further directions. He dealt with several matters, and at the end added this:

"Towards the end of my address, ladies and gentlemen, I put certain things to you that you should have regard to, if you were satisfied beyond reasonable doubt that the accused strangled the deceased and in considering whether manslaughter was the appropriate verdict. I didn't say at that time, although I said to you at other stages of my summing up, that the decision is entirely yours, and that anything I think, unless it commends itself to your commonsense, you can completely disregard. The facts and the verdict are entirely yours."

Ms Nelson submits that in the second extract from the directions that I have cited, the Judge gave what would have sounded like a direction of law, and that it effectively told the jury that manslaughter was not open. She submits that the corrective direction came too late.

I do not accept the submission. I consider that the point the Judge made about murder being the likely conclusion is a comment that was well open to the Judge, under the circumstances. The application of pressure to the neck for between two and three minutes, even if not continuous, is not easily reconciled with anything other than an intention to cause at least serious bodily harm. In that respect, Ms Jenkins's slight stature is really not much to the point. There is nothing in the Judge's directions that makes me think that what he said would have been interpreted as a direction on a matter of law, binding the jury. I add that the Judge repeatedly made the point to the jury that the facts were for them, and that any comments he made were made only for their assistance. An instance of this appears in the final extract set out above.

This was a case in which, although Mr Andrews did not give evidence, the jury heard plenty of evidence about his version of the events. As I have already mentioned, Mr Andrews was interviewed at some length on several occasions by the police. The jury heard evidence of these interviews, and those that were videotaped were played for the jury. Thus, they had the opportunity both to see and to hear recordings of Mr Andrews giving his explanation. As well, a feature of the case is the number of people to whom Mr Andrews related what had happened, after Ms Jenkins's body was found. These people also were called to give their evidence.

"Ladies and gentlemen, the accused did not give evidence before you. An accused person is not bound to give evidence. He is entitled to stay in the dock and require the prosecution to prove its case. His silence is not evidence of either guilt or innocence. It cannot fill any gaps in the prosecution case. It cannot be used as a makeweight.

On the other hand, you, the jury, have been deprived of the opportunity of observing him in the witness box and hearing his story tested in cross-examination."

I consider that the first paragraph of this direction was an appropriate direction about the significance of the fact that Mr Andrews did not give evidence: see Azzopardi v The Queen [2001] HCA 25; (2001) 75 ALJR 931 at [49]- [51]. The second paragraph is an observation or comment that is often made, and in my opinion cannot be criticised: see R v Byron (1988) 145 LSJS 141.

In her submissions, the main point made by Ms Nelson was that the Judge did not remind the jury that Mr Andrews suffered from a speech and hearing defect, and that this may have been the reason why he chose not to give evidence. There are two short answers to that point. The first is that the jury had seen video recordings of Mr Andrews answering questions, and had heard audio recordings of him speaking. The second point is that it was not incumbent upon the Judge to identify a particular possible reason for a decision not to give evidence, particularly in light of the first point.

I consider that the evidence pointing to guilt was substantial.

The only point made in support of this submission was that there was another man known to Ms Jenkins who had been her lodger, who had had arguments with her, who two days before the death had come to the house uninvited, resulting in Ms Jenkins calling the police, and who at one stage had a key to the house. This material was before the jury, along with other material relevant to the possible guilt of this man, which material it is not necessary to summarise.

In my opinion, on the evidence before them, it was open to the jury to be satisfied beyond reasonable doubt. I reject this submission.

In her submissions to the jury, the prosecutor placed some emphasis on lies by Mr Andrews. She told the jury that they should not be too concerned about minor inconsistencies and mere details. She acknowledged that people can get things wrong. But she said that she would concentrate on the "really important inconsistencies", and:

"If you find he has been untruthful, you will find he could only have been untruthful about those matters for one reason and for one reason alone and that is out of a very uncomfortable sense of his own guilt."

After dealing with some other matters the prosecutor then turned to the various accounts that Mr Andrews had given of his movements, and his various explanations for things that might implicate him. She went through these with some care. She said:

"The prosecution says, and you've heard from those inconsistent accounts, that he's been lying. When we come to the topic of what he said about anal sex, and this handbag, the prosecution says he's been caught out there in a demonstrable pair of lies."

She then dealt with occasions on which Mr Andrews told witnesses that other people had tried to have anal sexual intercourse with Ms Jenkins, and with the evidence suggesting that Mr Andrews himself wished to do so. She made the point that Mr Andrews raised the topic of anal sexual intercourse before he had been told by the investigating officers that there were signs of this, as well as making the point that he was lying about his own interest in anal sexual intercourse. As to the deceased's handbag, without going into detail she submitted that Mr Andrews gave the police a false account about its whereabouts, to make the police think that theft had been a reason for the crime. She submitted that he had deliberately introduced a red herring. After dealing with one or two other matters to which possible lies were not relevant, she came to the marks on Mr Andrews's body. The prosecution submission was that these marks indicated that he had been involved in a struggle with Ms Jenkins. The prosecutor's focus here was on the unlikelihood of the explanations and on inconsistencies.

In the light of this, the Judge had to deal with the topic of lies.

Early in the summing up, the Judge gave the jury an appropriate general direction about the submission that Mr Andrews had lied in a manner that amounted to evidence of guilt. The direction met the requirements stated by the majority in Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193 at 210-211, subject to the point that it was a general direction, and not tied to the facts of the case. In particular, the matters or topics on which the prosecutor submitted that Mr Andrews had lied were material matters in the sense of matters that might directly implicate him in the crime, and were not peripheral or collateral matters that could only go to credit.

The Judge returned to the topic later. He began by saying:

"[The prosecutor] put it to you that the accused has lied on many matters. For example, whether he was into anal and oral sex; whether the handbag was by her bed when he left; the cause of his own injuries and so on."

There are two points to be made about this passage. The first is that the introduction of the reference to "oral sex" was not appropriate. The focus had been on anal intercourse, although it is true that Mr Andrews had also denied any interest in oral intercourse. The second point is that when identifying the topics of the lies, the Judge did not refer to the suggested inconsistencies in and unlikely aspects of Mr Andrews's accounts for his movements and explanations for relevant matters. On the other hand, I do not consider it was necessary for the Judge in this case to go to the extent of identifying a particular answer or explanation given to a particular witness. In the circumstances it sufficed to identify the topics of the suggested lies, bearing in mind in particular that Mr Andrews had spoken about these matters on a number of occasions.

Following on from this passage, the Judge again gave what I consider to be an adequate general direction about the use of lies. In particular he reminded the jury of explanations or reasons for lies which might be inconsistent with any satisfaction on their part that a lie, if one was told, was evidence of guilt.

Then the Judge turned to a number of points made by counsel for Mr Andrews. He went through these with some care. In the course of doing so he touched on each of the topics which the prosecutor had suggested were topics on which Mr Andrews had lied, including the inconsistencies in and unlikely aspects of his accounts of events. What he reminded the jury about were submissions counsel had made which would suggest that Mr Andrews had not lied, and that at worst what the jury had before them were mistakes, or matters that were not even mistakes, in the sense that things relied upon by the prosecutor were capable of a quite innocent explanation. For example, in relation to what Mr Andrews said about Ms Jenkins's handbag, he reminded them of the obvious point made by Mr Andrews's counsel that surely Mr Andrews would have realised that it was pointless to tell a lie about the whereabouts of the handbag, because it would be found in her wardrobe sooner or later, and that this was obviously a simple mistake. The Judge concluded by reminding the jury that counsel had submitted that Mr Andrews must have known he was under suspicion, must have been under some stress, and that Mr Andrews was not "very articulate", as to which the Judge said "I am sure you will agree about that." He reminded them about the submission by counsel that Mr Andrews was at times "confused and confusing". It is relevant to mention that Mr Andrews was evidently an unsophisticated person.

What the Judge did not do is specifically identify each of the suggested lies or topics of lies, and assist the jury by explaining, item by item, how a lie on that topic might be evidence of consciousness of guilt, and how on the other hand it might not, other than by reminding them of defence counsel's submissions. For example, in relation to the suggested lie about Ms Jenkins's handbag, he did not make the obvious point that in the circumstances Mr Andrews must have realised he was a suspect, and because he was an unsophisticated person, might well have told a lie to turn police suspicion towards someone outside Ms Jenkins's circle of close acquaintances. Nor did the Judge point out that a deliberate lie about the handbag, suggesting theft as a motive for the crime, might well have reflected a realisation that unless theft was the motive, the motive was likely to be one that would implicate Mr Andrews. On the other hand, the general direction which the Judge gave about lies had included the point that people tell lies out of panic, and "to improve on an innocent version of events".

In this respect the direction given by the Judge did not meet the requirements identified by the majority in Edwards.

This aspect of the case has caused me some concern. It is yet another instance in which, to my mind, unnecessary prominence has been given by the prosecutor to the issue of lies. The difficulties that can arise when the submission is made that lies are evidence of guilt, as distinct from being relevant to credibility and in that sense simply generally assisting the prosecution case, are well known: see Zoneff v The Queen [2000] HCA 28; (2000) 200 CLR 234 at [15]. This Court has made the point on a number of occasions that there are sound reasons why caution should be exercised before a submission is made that suggested lies may be evidence of guilt: see in particular Harris v The Queen (1990) 55 SASR 321 at 323-325 King CJ. I agree with everything that King CJ said on the topic. See also the remarks of Duggan J in R v Grosser [1999] SASC 302; (1999) 73 SASR 584 at 600-606.

Nevertheless, in the end I am not satisfied that there is any risk of a miscarriage of justice in this case. The subject matter or topic of the lies was adequately identified, taking the directions as a whole. The subject matters of the suggested lies were, as I have already said, matters which had the capacity to implicate Mr Andrews in the murder. They were not collateral matters. There were aspects of Mr Andrews's behaviour that lent support to the submission that discrepancies, inadequacies and inconsistencies were not merely mistakes, attributable to defective memory or the pressure of being under suspicion. The issue for the jury in relation to each of the suggested lies was relatively straightforward, although the Judge should have helped the jury more than he did. He did remind them of explanations advanced by defence counsel, which explanations might mean that they were not satisfied that lies were told, or that if told they resulted from anything more than a desire by Mr Andrews to distance himself from the events. He also reminded them in general terms of reasons why a lie might not support an inference of guilt. He did not explain specifically, topic by topic, how the lie might be said to proceed from a consciousness of guilt, or amount to a confession of guilt, but that is all that he failed to do.

I consider that the directions gave the jury sufficient guidance, even though more could usefully have been given. Even if the summing up were defective, I regard this as a case in which it would be appropriate to apply the proviso. I do not consider that there is any risk of a miscarriage of justice from the deficiency in the directions.

For those reasons, I would dismiss the appeal against conviction.

PRIOR J: I agree with the reasons given by the Chief Justice. The appeal should be dismissed.

Robert James Andrews the appellant was charged with the murder of Christine Jenkins. He was convicted on the verdict of a jury on 11 April 1996.

Ms Jenkins was murdered at her home at Ferryden Park in the early hours of Sunday 18 December 1994. She was found semi-naked on her bed. She had been strangled. There was bruising to her body. There appeared to have been a struggle. The time of death was likely to have been between 3.15 am and 6.00 am.

The Crown case was circumstantial. It was said that the attacker was known to the deceased and the motive sexual. The evidence suggested there had been vaginal and anal penetration.

The appellant and the deceased had been in an unstable relationship for some time. The relationship had at times been acrimonious but they had recently reconciled. The appellant was the only person apart from the deceased who had a key to the home. He lived nearby. There were no signs of forced entry.

There was evidence that suggested that the appellant and the deceased had engaged in anal intercourse to the dislike of the deceased. A completed magazine questionnaire found at his home suggested that he was interested in anal intercourse. Other evidence suggested that the appellant demanded more from the deceased sexually than was appreciated. However this was denied by the appellant.

The appellant and the deceased had been at a party the previous evening. They appeared happy. They returned to her home between about 2.30 am and 3.30 am on the Sunday morning. It was not disputed that the appellant went with the deceased to her home after the party. The appellant did not give evidence. In summary, his case was that he helped put her children to bed and then "hopped up" onto her bed and talked to her for about 15 minutes. He then left her home and walked back to his own home a distance of about four kilometres. He went to the toilet, had a cup of coffee and then walked back to the deceased's home. He found her dead, attempted to resuscitate her, had a second cup of coffee. He then raised the alarm at some time between 6.00 am and 7.00 am. He rang the police and an ambulance. The Crown case was that the appellant had provided a number of inconsistent accounts as to his movements on the night of the deceased's death and on other significant matters.

I have had the benefit of reading the reasons of Doyle CJ. I agree that the lies direction was inadequate. However I disagree with the consequence that flows from that inadequacy. In my view the inadequacies were of such a nature that they have led to the risk of a miscarriage of justice in this case and that there should be a retrial. As a result it is unnecessary to consider the other grounds of appeal in detail. Generally I agree that they are without substance.

It is necessary to record a portion of the Crown's final address to the jury before coming to consider the judge's summing up and the inadequate lies directions. During the course of her address counsel for the Crown told the jury:

"I want to make it very clear, members of the jury, before I get into what he said, that the prosecution submission about this trial has always been and remains very simple. There are a number of known facts - I've just highlighted the main ones - not in dispute, which together with his many inconsistent stories to many people, comes to one conclusion and one conclusion only that the accused has been lying on very significant matters and in all of the circumstances there can be only one reason for those lies and, as I've said, that is his own sense of his guilt."

A number of the alleged lies ("lies") were said to arise out of a consciousness of guilt. The lies related to the appellant's account as to his movements on the night of the deceased's death and on other significant matters. The Crown made submissions with respect to each lie.

The topics of the lies can be summarised as follows:

A lie relied upon by the Crown related to the reason the appellant left the deceased's home in the middle of the night. In essence the appellant was said to have given three differing accounts that were inconsistent. Initially the appellant said that his decision to leave was his own and made in amicable circumstances. He later said that the deceased had wanted him to leave and that he thought there was no point in arguing. His third account was that he and the deceased had an argument and that she was in a bad mood.

Another lie related to the reason the appellant returned to the deceased's home the following morning. Again essentially three differing explanations were proffered by the appellant. The first was that there was a definite plan that he would return to the deceased's home at a fixed time to assist with domestic chores. The second was that no firm arrangement had been made but that he may return in the morning. The other was that the appellant was restless after the argument with the deceased.

Another lie related to the way in which the appellant entered the deceased's home upon his return. It was accepted that he had a key but two differing accounts were given as to whether it had been used. Initially he said that the door was locked. He knocked and then used his key to enter her home. Later he said that the door was open and ajar. He said that he had not used his keys and that he had simply "walked in."

Another lie related to the position of the deceased's handbag. It was said that this lie was designed to suggest that the motive for the crime was robbery. The appellant maintained on a number of occasions that when he left the deceased's handbag was alongside her bed. He said that when he returned in the morning the handbag had been moved. The handbag was located in a locked wardrobe. It was said that only the deceased and the appellant had keys to the wardrobe apart from a spare located in the kitchen.

Further lies related to anal sex. The Crown case was that the appellant liked this form of intercourse. He denied this and further denied that he believed in anal sex, that he engaged in it and that the deceased believed in anal sex. The Crown relied on a completed magazine questionnaire found at the appellant's home which suggested otherwise.

Additional lies on the topic of anal sex were said to have been based around the appellant's esoteric knowledge of the crime. The police had not told him that the post mortem evidence was suggestive of anal and vaginal penetration. However on several occasions he attempted to implicate others including the deceased's former husband. He identified a person whom he had heard had attempted to have anal sex with the deceased and told others that she had been anally and vaginally raped. It was said that the appellant's suggestion that the deceased's former husband had recently threatened her was a "gratuitous" lie.

Another lie related to the appellant's contact with the deceased on her bed. It was the Crown case that the appellant knew that there was faeces on her and her bed. Accordingly he knew that the faeces stains on his socks would need to be explained. It was said that the appellant made up a story. He said that the staining had occurred during his attempt to resuscitate the deceased on her bed. However no faeces stains were found on the rest of his clothing.

Marks and Injuries to the Appellant's body after the Death

Further lies related to the injuries and marks apparent on the appellant's body after the death. The Crown again said that inconsistent explanations as to their cause were given by the appellant. Initially he said that he and the deceased had not engaged in conduct that would have caused the marks. Later he said that he and the deceased had played games on the Saturday night which involved pinching each other and that she had caused the marks to his chest. On another occasion, possibly twice he suggested that a dog was responsible for the marks and also suggested that another person was involved. He later said that he and the deceased had fought but that he did not kill her.

Counsel for the Crown returned to the issue of lies at the conclusion of her address:

"That's why there's no sign of any struggle anywhere in the house, but on the bed. That's why the accused told the police that he hopped up on the bed with her for 15 minutes or so. Indeed, you may think he did and then something very bad happened. Something very bad happened on that bed, about which you might think the accused has not been terribly forthcoming with all of his stories to all of those people on all of those days, and that's why he can't get his story straight.

That's why he can't get his story straight about what mood Christine was in when they came home from the party. That's why he can't get straight what their last moments together were really like.

That's why he can't get it straight as to whether they made arrangements for him to come back and if so what time and why.

That's why you have no account of that one, to one and a half hour time gap when the accused was doing God knows what. We have no idea.

He cannot get it straight, members of the jury, because in all of his utterances he still, you might think, had not told one of those people the truth.

When you tell a lie, members of the jury, you might know that from your experience and from the experience of your children or whoever, you've got to keep it short and simple because once you start embellishing lies there's all sorts of ways you can get caught out.

That's what this accused did. He embellished his lies. Talking to Champness about when he hopped up on the bed to give the massage. Talking to people about what he was coming back to do that morning.

You see, you've got to be a very good liar to tell a complicated story and get away with it. You might think he's not a very good liar, he just simply wasn't smart enough to tell that story and get away with it.

As the old Queen, members of the jury, said in the Shakespeare play that some of you might have been subjected to at school, when she was watching the play about the woman who was bemoaning the death of her husband and how sad it was - a husband she just murdered.

'The lady doth protest too much, me thinks' said the old Queen.

You might think that in this trial it's the man who's been protesting too much and in doing so, you might think he could not have more clearly told the world that he was the killer of Christine Jenkins."

In summing up the learned trial judge ("the judge") gave the following direction[1]:

"Counsel for the prosecution has submitted to you that the accused has told lies and that that amounts to some evidence of his guilt. Generally speaking, the fact that an accused person tells a lie is not of itself evidence of his guilt. However, in some circumstances lies may provide such evidence. That is so where the nature of the lie or the circumstances in which it is told, or both, tend to indicate that it was told by the accused as a result of a realisation of his guilt and an awareness that the truth would implicate him in the crime.

In the present case, there are matters which require your consideration in that regard. I will refer to some of those lies in my address to you tomorrow.

In order to consider those alleged lies as evidence of guilt, you must firstly be satisfied that they were deliberate lies and that they relate to matters which are material to the accused's guilt or innocence of the present charge.

If you are satisfied on those points, you should then consider whether, in your view, the telling of those lies is indicative of a realisation of guilt and a fear of the truth.

You should not be too ready to take the view that the telling of lies is indicative of a consciousness of guilt. Some people tell lies out of panic, to escape unjust accusation, in a foolish attempt to improve on an innocent version of events, to protect some other person or to avoid a consequence extraneous to the alleged offence. There may be other innocent explanations for the lies. However, if you reach the conclusion that the lies in question are indicative of the consciousness of guilt, you may regard the telling of the lies as some evidence of guilt and take it into account with the other evidence in the case in considering whether the accused's guilt has been proved beyond reasonable doubt."

[Counsel for the prosecution] put it to you that the accused has lied on many matters. For example, whether he was into anal and oral sex; whether the handbag was by her bed when he left; the cause of his own injuries and so on.

I would like to repeat my direction to you about the way to approach lies, if you find that there were lies.

In order to consider those alleged lies as evidence of guilt, you must first be satisfied that they were deliberate lies and that they relate to matters which are material to the accused's guilt or innocence of the present charge.

If you are satisfied on those points, you should then consider whether, in your view, the telling of those lies is indicative of a realisation of guilt and a fear of the truth.

I repeat that you should not be too ready to take the view that the telling of lies is indicative of a consciousness of guilt. Sometimes people tell lies out of panic, to escape unjust accusation in a foolish attempt to improve on an innocent version of events, to protect some other person, or to avoid a consequence extraneous to the alleged offence.

There may be other innocent explanations for the lies. However, if you reach the view that the lies in question are indicative of a consciousness of guilt, you may regard the telling of lies as some evidence of guilt and take it into account with the other evidence in the case in considering whether the accused's guilt has been proved beyond reasonable doubt."

Between the two directions with respect to the use of lies, the judge reminded the jury of the Crown's submissions concerning lies. However in that part of the summing up each lie was not precisely identified. Some were not identified at all. Further the circumstances with respect to each lie from which it was said an admission of guilt arose were not identified. In that part of the summing up the judge did not return to the issue of admissions against interest.

Counsel for the appellant complained that the lies direction was inadequate. The judge did not specifically refer the jury to each of the lies relied upon by the Crown. This was said to be an error. Reliance was placed on the High Court's decision in Edwards v The Queen[2].

As earlier observed it was the Crown case that the marked inconsistencies in the appellant's accounts on various topics were lies. These lies were told in circumstances in which they were said to be admissions of guilt. The Crown asked the jury to conclude that all of these lies were told out of a consciousness of guilt.

Initially the Crown submitted that the judge's direction complied with the requirements laid down in Edwards. As oral submissions developed it was accepted that the judge's direction was imperfect. However the Crown maintained that the direction viewed overall was not so deficient as to lead to a miscarriage of justice. Counsel emphasised the strength of the Crown case and submitted that at the very least the lies were totally destructive of the appellant's credit. It was further submitted that there was no real possibility of an acquittal.

In Edwards the High Court considered the issue of lies told out of a consciousness of guilt. Deane, Dawson and Gaudron JJ said (at 210-211):

"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 realization 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."

In Zoneff v The Queen[3] the Court reaffirmed the principles set out in Edwards:

"The meaning of the phrase 'consciousness of guilt', the risk that its use by the trial judge may itself suggest guilt, which circumstances call for the giving of an Edwards-type direction, and the difficulty in distinguishing between lies going to credibility and those indicating guilt have been matters of some controversy. The Court of Appeal in Victoria in a series of cases, R v Morgan, R v Renzella, R v Laz, R v Erdei, R v Cervelli and R v Konstandopoulos has sought to grapple with the problems. But as Hayne JA in Morgan suggests, rigid prescriptive rules as to when and in what precise terms an _Edwards-_type direction should be given cannot be comprehensively stated.

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 author of Cross on Evidence[4] makes the following observation:

"The judge in directing the jury must identify the lie relied on and the circumstances and events which are said to indicate that it constitutes an admission against interest. The charge should include a direction that the jury may use it as corroboration 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'. Finally, the judge must in appropriate cases instruct the jury that there may be reasons for the telling of a lie apart from the realisation of guilt and that is for the Crown to eliminate any reasonable possibility that the lie was told for such a reason."

In R v Grosser[5] Duggan J (with whom Doyle CJ and Wicks J agreed) observed:

"There is another difficulty in that, whether or not the lies could be used for the stated purpose, the jury were given no instructions on the circumstances obtaining in the present case which might render it inappropriate to treat proved lies of this nature as independent evidence of guilt. The course adopted by the trial judge was to give general directions on the use of lies as evidence of guilt and then refer to the evidence itself without further comment. The need for general directions in a case of this nature to be related to the facts in an adequate manner was referred to in Edwards' case where reference was made to Lonergan v The Queen [1963] TASStRp 13; [1963] Tas SR 158 at 166. In Lonergan's case Burbury CJ observed at 161:

'It is important in the case of a direction of this kind that it should be clearly related to the evidence. It can only be clearly understood if it is applied and explained in relation to the specific false denial or statement relied upon as constituting corroboration. It is always important to relate directions in law to the facts of the case before the jury but particularly is this so in the case of a direction as to the use which may be made of certain pieces of evidence. A general direction as to the circumstances in which false denials or statements may afford independent testimony of an affirmative issue is not likely to be apprehended by the jury as an abstract proposition. It is open to the criticism of Cussen J. 'that it is of little use to explain the law to a jury in general terms and then leave it to them to apply the law to the case before them'. (See also Alford v Magee [1952] HCA 3; (1952) 85 CLR 437 at 466; and Masnec v The Queen [1962] TASStRp 25; [1962] Tas. S.R. 254).' "

The lies direction was inadequate. The judge did not precisely identify each lie relied upon by the Crown. He did not identify the circumstances and events that were said to indicate that each lie constituted an admission against interest. The inadequacies went further. A number of lies were not identified at all in the summing up. The judge also erred when he referred to a lie about "oral sex". That lie was not a matter that the Crown had advanced as a deliberate lie told out of a consciousness of guilt.

The direction of the judge did not identify the means by which the jury might assess whether each lie was told out of a consciousness of guilt. Different considerations may have been relevant to each lie. The trial judge gave general directions on the use of lies as evidence of guilt and failed to assist the jury in applying the directions to the facts of the case before them.[6]

In White v The Queen[7] the Canadian Supreme Court summarised the position as follows:

"It has been recognized, however, that when evidence of post-offence conduct is introduced to support an inference of consciousness of guilt it is highly ambiguous and susceptible to jury error. As this Court observed in Arcangioli, the danger exists that a jury may fail to take account of alternative explanations for the accused's behaviour, and may mistakenly leap from such evidence to a conclusion of guilt. In particular, a jury might impute a guilty conscience to an accused who has fled or lied for an entirely innocent reason, such as panic, embarrassment or fear of false accusation. Alternatively, the jury might determine that the conduct of the accused arose from a feeling of guilt, but might fail to consider whether that guilt relates specifically to the crime at issue, rather than to some other culpable act.

However, the best way for a trial judge to address that danger is simply to make sure that the jury are aware of any other explanations for the accused's actions, and that they know they should reserve their final judgment about the meaning of the accused's conduct until all the evidence has been considered in the normal course of their deliberations."

The judge did not instruct the jury that it was for the Crown to eliminate any reasonable possibility that each lie was told for a reason apart from the realisation of guilt. There are possible reasons that may go some way in explaining why an accused may have provided different accounts. This may result from a conscious exaggeration for effect, a subconscious exaggeration after the passing of time, a concern over an inability to recall precisely what occurred and attempts to fill the gaps, the emotional impact and effects associated with losing someone close in unpleasant circumstances, finding a dead body, panic or fear, feelings of a need to offer an explanation when it is sought, attempting to improve one's position when it is thought that an explanation offered may not be viewed by others, particularly the police as credible and reliable, concern that the circumstances "looked bad" and that the truth may not be believed.

In this case a number of these explanations may have been possibilities. For example the appellant may have attempted to improve his position by falsehoods when explaining why he left and returned to the deceased's home. He may have wanted to portray himself in a more favourable light and thought that the truth would look unduly suspicious. It is possible that when he realised it "looked bad" he sought to distance himself from the deceased and the important events by providing alternative explanations and attempting to implicate others. The appellant may well have made up a story and altered his position with respect to his method of entry. This may have been because he knew that he was the only other person with a key and that there had been no forced entry. He may have felt pressure to offer a "plausible" explanation in an effort to prevent the police from suspecting him. The appellant may have blamed others in an effort to distance himself from the events and to avoid police scrutiny. He may also have had genuine concerns about the way others had been treating the deceased. The appellant may have made up the story about the handbag to divert the police attention away from him. One consequence of this falsehood was that it appeared to the police that robbery was the motive for the crime. However it does not necessarily follow that this was the appellant's intention or that he consciously sought to create a diversion. The appellant may have offered differing explanations about the cause of his injuries because of a fear that if he said that the deceased was involved or had made the marks he would be implicated.

The remarks of King CJ in Harris v The Queen[8] are apposite:

"The probative character of some lies rises from their tendency to indicate that they proceed from a consciousness of guilt on the part of the accused. Instances of lies of that kind are false denials of having been in the company of an alleged victim at a material time or of having been at the scene of the crime at a relevant time, made at a time when the accused could not have known, unless he was the culprit, that there had been any wrongdoing in connection with the alleged victim or at the scene of the crime. Even in such cases courts must be on their guard against collateral motives for telling lies, such as the desire to conceal from a spouse that the accused was in the company of the alleged victim or was at the scene of the crime. The circumstances in which lies told after an accused becomes aware that he is or might be under suspicion in connection with the crime can amount to positive evidence of the commission of the crime must be rare. The tendency of persons under suspicion to wish to distance themselves from the persons or events connected with the alleged crimes and to endeavour to improve their position by falsehood is far too common to enable an inference to be drawn with confidence, in any but the rarest of cases, that lies proceed from a consciousness of guilt. Unjust results can easily flow from a readiness to treat lies of an accused person as positive evidence of guilt."

The jury should have been instructed that before treating the lies relied upon by the Crown as evidence of consciousness of guilt they had to be satisfied of two matters. The first is that the appellant knew of the circumstances and events said to demonstrate the admission against interest. The second is that the appellant knew that the truth would either implicate him in the offence or that he feared to tell the truth because of his realisation of guilt. The judge failed to instruct the jury in these terms.

It was likely that any lie told by the appellant would have an adverse effect on his credibility. However, the Crown went further and sought to use the lies as admissions against interest. Whilst the inconsistencies in the appellant's statements are numerous and could be described as significant, it does not follow that the appellant told the lies out of a consciousness of guilt. It is only in "but the rarest of cases" that this will be so[9]. For these reasons it was imperative that the lies be separately identified and addressed individually by the trial judge in accordance with the requirements of Edwards.

The alleged lies told out of a consciousness of guilt formed an important part of the Crown case. They were not incidental matters. This was a case where an Edwards direction was required with respect to the alleged lies. The judge's direction fell far short of what was required. It was deficient. There was a material misdirection given to the jury.

The Crown submitted that if there was error no miscarriage of justice had occurred and that accordingly the proviso should be applied to uphold the appellant's conviction.[10]

As earlier observed the allegations about deliberate lies formed an important part of the Crown case. This is illustrated by the extent of the evidence and the careful and detailed address by the Crown on the topic. The fact that the Crown alleged a pattern of deliberate lies told out of a consciousness of guilt made the need for a full direction even more acute. The Crown's allegations heightened the need for the jury to be fully assisted.

The evidence against the appellant was strong. However the relevant consideration is not the evaluation of the evidence. It is a consideration of the consequence of the failure of the judge to correctly direct the jury.

It is necessary to evaluate the prejudice occasioned by the inadequate direction. The dangers identified in Harris were present in this case. There was a need to guard against collateral motives. In Grosser[11] Duggan J concluded that an inadequate lies direction had been given and commented:

"Courts of Appeal have frequently expressed concern about reliance by the prosecution on alleged lies to provide independent evidence of guilt when such reliance is inappropriate[12]. In R v Heyde Gleeson CJ recalled the comment made by Street CJ in R v Sutton that reliance by the prosecution on lies as collateral conduct providing evidence of guilt is 'fraught with the risk of miscarriage'."

The jury needed to be given the assistance specified in Edwards. I do not consider that it can be said that the appellant had a fair trial. "Unjust results can easily flow from a readiness to treat lies of an accused person as positive evidence of guilt": Harris v The Queen at 323 King CJ. The directions given by the judge in this case did not adequately protect the accused from the possibility of such an unjust result. I am not satisfied that the Crown has shown that the misdirection deprived the appellant of no real chance of acquittal[13]. I do not consider that "no substantial miscarriage of justice has actually occurred." There was a risk of a miscarriage of justice in this case.

I would allow the appeal and order a retrial.

LIST OF CITATIONS AS THEY APPEAR IN THE JUDGMENT

6 "Perhaps there was and is a tendency to incant words from Edwards v R without realising that each relevant lie will require explanation in the context of the particular trial". R v Laz [1998] 1 VR 453

7 (1998) 125 CCC (3d) 385 at [22] and [57]

9 R v Harris (1990-91) 55 SASR 321 at 323

10 The proviso appears in section 353(1) of the Criminal Law Consolidation Act 1935 SA which provides:

"The Full Court on any such appeal against conviction shall allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law, or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal; but the Full Court may, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred."

12 R v Sutton (1986) 5 NSWLR 697 at 701; R v Heyde (1990) 20 NSWLR 234 at 236; Harris v The Queen (1990) 55 SASR 321 at 323, 325 and R v Webb and Hay (1992) 59 SASR 563 at 577.

13 Driscoll v The Queen [1977] HCA 43; (1976-1977) 137 CLR 517 at 524-5; Mraz v The Queen [1955] HCA 59; (1954-56) 93 CLR 493 at 514; Domican v The Queen (1991-92) 173 CLR 555 at 565-567; Festa v The Queen (2001) 76 ALJR 291 at 326; Ugle v The Queen [2002] HCA 25

[6] "Perhaps there was and is a tendency to incant words from Edwards v R without realising that each relevant lie will require explanation in the context of the particular trial." R v Laz [1998] 1 VR 453

[7] (1998) 125 CCC (3d) 385 at [22] and [57]

[9] R v Harris (1990-91) 55 SASR 321 at 323

[10] The proviso appears in section 353(1) of the Criminal Law Consolidation Act 1935 (SA) which provides:

[12] R v Sutton (1986) 5 NSWLR 697 at 701; R v Heyde (1990) 20 NSWLR 234 at 236; Harris v The Queen (1990) 55 SASR 321 at 323, 325 and R v Webb and Hay (1992) 59 SASR 563 at 577.

[13] Driscoll v The Queen [1977] HCA 43; (1976-1977) 137 CLR 517 at 524-5; Mraz v The Queen [1955] HCA 59; (1954-56) 93 CLR 493 at 514; Domican v The Queen (1991-1992) 173 CLR 555 at 565-567; Festa v The Queen (2001) 76 ALJR 291 at 326; Ugle v The Queen [2002] HCA 25

Criminal Law Consolidation Act 1935(SA)

R v ANDREWS No. SCCRM-00-25, SCCRM-00-26 [2002] SASC 233

At a glance

Court

Decision date

Before

Catchwords

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Judgment (197 paragraphs)

R v ANDREWS No. SCCRM-00-25, SCCRM-00-26 [2002] SASC 233 (23 July 2002)

Parties

Legislation Cited (2)

Cases Cited (17)