R v Boros [2002] VSCA 181

5. The events leading to the conviction arose out of a dispute between neighbours in a block of units in Dandenong. There was a good deal of confusion as to what precisely occurred from those witnesses who participated and those who at least in part observed the events. Although there were originally three grounds of appeal, there remains only one ground[1], namely that the judge "erred in the direction to the jury concerning lies and consciousness of guilt", which, as argued, primarily related to the applicant's answers to questions 292 to 310 in the applicant's record of interview. It should be noted that a second ground which complained of the judge's ruling as to the admissibility of certain of those answers as demonstrating consciousness of guilt has not been pursued. Before turning to the particular questions and answers which are in issue it is desirable to give a brief summary of the events relied on by the prosecution which, in the absence of any like summary, I take substantially from the judge's remarks on sentence.

8. It seems that at the time of the alleged offence the applicant and his wife had been residing in a unit in St George Parade, Dandenong for approximately one year. His wife gave evidence at the trial that one evening in March 1999 they had both been watching television when they were disturbed by loud voices and music coming from the immediately adjacent unit. The applicant had responded in the first place by raising the volume of his stereo in an effort to drown out the noise. At the same time his wife telephoned the police, so it was said, to make a complaint about it.

11. At the same time the complainant, one Russell Goodall, and two companions, Andrew Lubin and Dean Henderson, were present in the next-door unit and enjoying a social evening, as it has been described. Mr Goodall's fiancee and baby child were out at this time of the evening. Late in the evening, when the three friends went outside into the yard to smoke, they heard the applicant's loud music. They said they were concerned that it would disturb Mr Goodall's child who was due to return shortly.

14. According to the prosecution case Mr Henderson came to the applicant's unit on his own while his two friends waited outside near Mr Goodall's unit. According to the applicant, they all came to his door. Mr Henderson gave evidence that the applicant was immediately aggressive, complained about the three friends' noise and grabbed his throat. After a struggle during which the applicant was thrown to the ground, he produced the can of CS gas which he had taken with him and sprayed it in the faces of Mr Henderson and Mr Goodall, who had come to assist him, with the consequent effect of causing stinging and irritation to their skin, eyes, nose and throat. According to the applicant in his record of interview it was at this time that a knife was first seen by him, but in the hands of Mr Goodall.

17. Thereafter some kind of struggle and argument took place in the vicinity of the applicant's unit after which, according to the prosecution, everything subsided for a time. The applicant returned to his unit and closed the door and Mr Goodall and his friends went back to their unit, or at least somewhere in the vicinity. According to the applicant, he did not come out again until the police arrived. The only independent witness to these altercations, Elizabeth Andreata, who was visiting her mother in a unit immediately opposite, said she heard loud voices and witnessed from her mother's lounge room window what was obviously an argument between the applicant and the other three men. Although she said she did not see any fighting at this time, she did see the applicant re-enter his unit and close the door and the other three men depart towards their unit.

20. Very shortly afterwards, according to the evidence of Ms Andreata and the three men - although this was denied by the applicant - the applicant re-emerged from his unit with his hands behind him and approached Mr Goodall and his friends in an aggressive manner. The three men said that he then produced a knife and menaced Mr Goodall and Mr Henderson with it, while they attempted to duck his actions, although the evidence of the three men was by no means consistent as to what they saw, especially as to the use of the knife. Mr Henderson ran into his friend's unit to get something with which to hit the applicant, while Mr Goodall stood his ground and said that he was stabbed for his pains. Neither Mr Henderson nor Mr Lubin, who was standing back somewhat in shock, saw the actual stabbing. Mr Lubin then came forward to help his friend and threw his glass directly at the applicant, hitting him on the shoulder, causing the glass to break immediately on impact. Ms Andreata said she saw the applicant kicking out and apparently attempting to fight with Mr Goodall but she did not see the stabbing which apparently occurred as the applicant moved out of her sight. It seems likely she heard the glass breaking and saw the applicant running back into his unit. It should be added that there was a good deal of confusion and some inconsistencies in all this evidence, especially that given by the three men in relation to the latter incidents.

23. When the police arrived shortly afterwards, the applicant and his wife were the first to come out and speak to them, protesting that it was the applicant who had been stabbed. In his subsequent record of interview made on 16 March 1999, the applicant denied ever having had a knife in his hand, but it is that record of interview and some of the questions which he failed to answer which are the subject of the remaining ground of appeal. The applicant denied ever returning to his unit and coming out again and he denied any knowledge of how Mr Goodall was stabbed, other than to say that at all times he was defending himself. He conceded that he was carrying the can of CS gas and had used it against one of the men.

26. At the trial a doctor gave evidence of examining Mr Goodall upon his admission to hospital and confirmed that he had a penetrating injury to his abdomen several centimetres long, consistent with a stab wound with a sharp instrument. He underwent exploratory surgery producing two surgical scars and remained in hospital for over a week. The other evidence given is not directly related to the matters raised on this appeal, other than that relating to the record of interview to which I shall turn.

29. As to the questions to which it is said the applicant gave a "no comment" answer, it is not necessary to set them all out in the way they have been recorded. At this stage of the interview, which had already proceeded for some time, the police were putting to the applicant a number of matters stated by the other witnesses, and in particular the other three men, and they then turned to what Ms Andreata had said, although at that stage I do not believe she had been identified to him. The relevant questions and answers were questions 292 to 310 in the record of interview. Up to that stage the applicant had been questioned generally about the incident and had given his version of it, primarily asserting that he had been defending himself in the scuffle with the three men from the neighbouring unit. It was Mr Goodall who had the knife and had threatened him, but he did not know precisely what had happened with the knife in the course of the struggle, only that he had received certain, relatively minor, injuries for which he had sought some treatment of an indefinite kind.

32. A number of questions had been put to him about the allegations made by Mr Goodall and his friends, most of which he had either denied, if unfavourable to him, or at least had made some attempt to answer. It was only when the investigating officer reached a description of the allegations of Ms Andreata that he became more cautious. To the first few questions he gave relatively responsive answers. Thereafter, when the witness's version of his coming out again from his unit with his hands behind his back was put, it first led to answers "I don't recall this". Then there were three "no comment" answers, which again involved the version from Ms Andreata as to his walking out the door and becoming involved in a second fight with the three men from the other unit. Then he appeared to agree as to where there had been a fight. Again, when pressed with the witness's version as to the continued fighting, he gave two further "no comment" answers. Finally, for this purpose, to a question as to how Mr Goodall was stabbed, the applicant answered:

"I did not stab him, that's all I'm saying. All I know, I've got the scars on my shoulder, look at my hand. I'm right handed."

Thereafter, his answers were primarily those of denial of the versions given by the other witnesses and the giving of his version of events.

37. One must, for the purposes of the sole ground argued, briefly refer to the course of the trial since essentially that is the basis upon which this ground is founded. In the course of his final address, counsel for the prosecution raised directly, since it had been the subject of argument and a ruling in favour of its admissibility, the answers in the record of interview which were said to amount to selective answering of the police questions. Counsel read out all of the relevant questions and answers and then asserted that the applicant had been selective in what he had chosen to answer, asking the question "why had he been selective?" Counsel then answered his rhetorical question by saying that, if the applicant had answered Ms Andreata's allegations, that would have done him no good at all. He continued:

"In other words, there is a legal phrase for this. He has a consciousness of guilt. He has no answer to that, how the independent person could make such claims. He has no answer and therefore gives no answer."

Counsel then said, in accordance with the customary direction, that if the jury thought there was a reasonable explanation for that, then they need not accept what counsel had submitted. The judge would give the jury the appropriate directions.

42. There was, however, no reference by counsel for the prosecution to any lies or indeed to any contention that the selective answering resulted in any other answers being treated as lies. Likewise counsel for the accused treated the contention on behalf of the prosecution as being confined to consciousness of guilt generally and did not answer, for there was no need to answer, any suggestion that particular answers on the part of the applicant in the course of the record of interview had been lies. Counsel merely responded in relation to the broad contention that the selective answers demonstrated consciousness of guilt and said, not surprisingly, that it was his client's right not to answer questions if he chose not to.

45. The difficulty in the case arose when the learned judge charged the jury on the subject of the record of interview. Although she began by describing the contention as to the selective answers as one which was said to demonstrate a consciousness of guilt, she then proceeded to deal with the applicant's right to remain silent, but saying they were also entitled to look at the context of the questions which the applicant chose not to answer. She then proceeded as follows:

"It is a matter for you, members of the jury, whether you consider that the accused was selective in the questions which he chose to answer, such as to justify an inference that he was telling lies in the answers which he did give. It is for you to decide whether untrue answers were given. In determining that issue, you must be careful that your approach to the task is logical, and permitted by law. The untruthfulness of what was said must be demonstrated by evidence before you. If your conclusion is that untrue answers were given, then that may be a matter for you to take into account when assessing the credibility of the accused as a witness."

She then warned the jury that they must avoid the natural tendency to say that, if the accused was lying, it must be because he was guilty, a direction in conformity with the conventional direction as to lies. She continued:

"Members of the jury, before you embark upon any analysis of the evidence, the lie, or lies must be precisely identified. It is not sufficient to proceed on the basis of a nebulous feeling that some lies have been told; the lie or lies must be precisely identified."

Thereafter, her Honour proceeded to conclude with what might be said to be the broad substance of a conventional direction as to lies, but, regrettably, without identifying for the jury's purpose the specific lies relied upon. That was of course impossible for her Honour to do, for the simple reason that the prosecution had not identified any lies; counsel had merely sought to rely upon the kind of consciousness of guilt which is said to be evinced by selective answering of questions[2].

52. Not surprisingly counsel for the applicant took exception almost immediately to this direction and in particular to the reference to lies in that they had not been referred to by the prosecutor in his final address, or at all. Counsel for the prosecution then immediately, and, quite properly, conceded that he had not identified any specific lies, nor relied on them and that "there might be something" in what his opponent was saying. Unfortunately, her Honour persisted by saying that there must have been some lies in what had been elsewhere said because the applicant's consciousness of guilt, as alleged, would be inconsistent with the answers that he had given already. Then there was a discussion which in the end seems to have been directed to identifying some questions and answers which might have amounted to particular lies upon which the prosecution might have relied but, unfortunately, would in effect be relied upon for the first time in the course of the judge's charge. The particular questions and answers so identified between the judge and the prosecutor were three questions and answers in which, in answering various allegations made against him, the applicant said it was not true that he had gone back inside his unit and closed the door and that when he came out again he had a knife in his hand, for he had said he could not hold it as his right hand was bruised.

55. Counsel for the applicant had then objected to any such course of giving further directions which would involve the identification of any lies and, in particular, the alleged lies contained in the three questions and answers. In particular, he said that none of those answers could amount in themselves to consciousness of guilt and should not be the subject of any specific direction. However, the learned judge did proceed to give directions upon the basis that the applicant's selectivity might have led to a conclusion that there had been earlier false denials in relation to those questions and answers, thereby purporting to identify the particular lies which the prosecution was by that stage relying upon. Little more was then said about those particular lies, nor the manner in which the jury could deal with them, although it may be argued that that had been done in general terms some time earlier. The subsequent directions were relatively short, without any attempt to relate them to the facts, directing the jury to look at the statement as a whole, and later, at the end of the charge, reminding them of the onus of proof which the prosecution bore in relation to consciousness of guilt and lies. There was yet a further objection by counsel for the applicant at the trial but it did not lead to any further directions. Ultimately, the jury acquitted on the count of intentionally causing serious injury, but convicted on the count of recklessly causing serious injury.

58. As I have said, there was but one ground relied upon by counsel, namely, that the learned judge's directions as to lies and consciousness of guilt were erroneous. Regrettably it is not difficult, after the narrative of events I have just set out, to see what it was about which the applicant was, and is, complaining. Indeed counsel for the respondent did not seek to argue that what her Honour had done was correct. His argument was rather that the Crown case was so strong that any misdirections had not led to any miscarriage of justice.

61. In simple terms, to seek to direct the jury on an additional item of evidence, not earlier relied upon, supporting a conviction was quite wrong. Secondly, to seek to correct the error by proceeding to elaborate the additional item late in her charge and without giving counsel an opportunity to address on this item was equally wrong. That was what the judge had done and sought to do by introducing a reference to lies not previously relied upon by the prosecution in the trial, whether in evidence or address. Whether they were truly lies for this purpose may be doubted, but it is unnecessary to examine that question further.

64. The whole sorry episode arose out of a failure to give an appropriate direction as to consciousness of guilt. It seems to have been assumed by her Honour that such a consciousness inevitably involves the making of lies or the implication that some earlier or other statements were untrue. So the direction to the jury embarked upon a discussion for their "benefit" seeking to identify lies which the prosecution had not relied upon and upon which neither counsel had addressed. The misconception was that consciousness of guilt must be made up of lying conduct, whereas it can, of course, be constituted by all kinds of conduct, so long as it may lead to an irresistible inference that the accused is guilty of the offence charged. It is unnecessary to examine the subject further, but it should be noted that the assumption underlying the ground was that the evidence of the selective answers was admissible at the trial, the relevant ground as to admissibility having been abandoned. As advanced to this Court, the only concession was that the selection of "no comment" answers is usually admissible as reflecting on the reliability of what otherwise is contained in the record of interview. Counsel for the applicant argued (and this was certainly resisted) that the answers here could not be used by the prosecution as evidence of consciousness of guilt, nor should the judge have directed at all upon that subject. He contended that the High Court decision in Woon should either not be followed or should be restricted to the very special circumstances there revealed. For this purpose he relied upon, inter alia, R. v. McNamara[3] and R. v. Smith, Ashford and Schievella[4]. Having regard to the fact that, if the appeal is allowed, it is highly unlikely now that a further trial will be conducted, it is not necessary to consider the application of those three cases to circumstances such as the present. That can wait until a later day.

67. 20 The only answer that the Crown could put forward was that its case was so strong that these matters were largely irrelevant and thus no miscarriage occurred. Doubtless there was much which pointed to the likelihood that the prosecution case would ultimately have been established, but I am not satisfied that there was no miscarriage in all the circumstances. Undoubtedly there was a melee, indeed more likely than not two melees, in which a knife was used. There was, on the other hand, a good deal of confused observation especially as to the way in which the knife was wielded. Unfortunately the evidence as to the selective answers, which need not have assumed much significance at all, was the subject of detailed, but erroneous, directions and two further attempts to direct the jury on the subject in a way which gave it and the supposed lies of the applicant much greater prominence than it deserved. I cannot be satisfied that the jury did not misuse what was essentially inadmissible, nor that it did not have an untoward effect on the jury's deliberations.

70. The trial therefore miscarried, in my opinion, and the application should be granted, the appeal allowed, the conviction set aside and a new trial ordered, although it seems unlikely that that will in fact occur. To me there seems to be no practical reason why the conviction and sentence for the admitted summary offence should not stand.

82. The orders of the Court therefore will be that the application be granted. The Court directs that the appeal be instituted and heard instanter; that the appeal be allowed; that the conviction of the applicant on the count of recklessly causing serious injury be set aside and that there be a new trial directed.

85. Further order that the conviction and sentence in respect of the charge of possessing and using a prescribed weapon without exemption should stand.

(Mr Thomas applied for a certificate.)

ORMISTON, J.A.:

91. A certificate will be granted to the applicant.

[2] As described and analyzed by a majority of the High Court in Woon v. The Queen [1964] HCA 23; (1964) 109 C.L.R. 529.

[3] [1987] VicRp 68; [1987] V.R. 855.

[4] (1990) 50 A.Crim.R. 434.