A Direction in Respect of Lies
22 Ground 2 was in these terms:
"2. The trial Judge failed to direct the jury, adequately, or at all in relation to lies allegedly told by the appellant."
23 The incident giving rise to the charges took place in January 1999. In September that year, Det Napper arrested Mr Dhanhoa. Shortly before his arrest Det Napper told Mr Dhanhoa that he was investigating an incident in which the victim had invited a group from a "pub" in Rozelle back to his unit. Once at the unit, the victim had been repeatedly stabbed and his property taken. He was later abducted in order to gain access to a bank account through an automatic teller machine. Having provided that background, Det Napper said this: (T.84/85)
"I said 'I will be up front with you, your fingerprints have been located inside the unit where this happened can you explain how your prints came to be there?' He said 'I've got no idea how they came to be there.' I said 'Do you wish to take part in any form of interview regards to this matter?' He said 'No not at the moment.'"
24 Det Napper continued:
"I said 'Have you ever been to the Bridge Hotel at Rozelle?' He said 'No, where's the Bridge Hotel?' I said 'Allegedly you were playing pool and watching Sri Lanka playing cricket on the TV.' He said 'No I know nothing about it.'"
25 The appellant gave evidence. He was cross examined about his conversation with the police. The cross examination included the following: (T.103)
"Q. When you spoke to the police at Burwood on 27 September?
A. Yeah, yah.
Q. At that stage you didn't remember being at Balmain at all?
A. No."
26 Det Napper apparently provided the appellant with a copy of the "Facts Sheet", being a short summary of the background to the charge. A cross examination proceeded as follows:
"Q. The fact is that you remembered about this event occurring when the police were charging you and they were giving you a copy of the (facts)sheet detailing what these events were?
A. I remember the night.
Q. You didn't say anything to the police at that stage that what I told you earlier was wrong I do remember?
A. Pardon.
Q. You didn't say anything to the police at that time?
A. No, no."
27 Mr Dhanhoa acknowledged that he later received and read the police brief. The following was then put: (T.164)
"Q. You told the police that you didn't really have any Indian acquaintances that's not true is it?
A. Yeah it is true.
Q. Isn't a person by the name of Ahmed Abass and Harry Abass those two persons are very close friends of yours aren't they?
A. Not close friends but I know them.
Q. They are Indian origin aren't they?
A. They are Lebanese."
28 Finally, the Crown asked the following questions: (T.165)
"Q. You knew about the Bridge Hotel prior to arriving at the hotel?
A. Yeah.
Q. So it wasn't true that you had never heard of the Bridge Hotel before?
A. I heard of it that night I was told that it was open after twelve."
29 That is as far as the cross examination went. The evidence from Det Napper was, no doubt, led by the Crown as evidence which may ultimately justify a submission that the appellant had lied through a consciousness of guilt. There was an apparent contradiction between the appellant's ignorance when first confronted, and the detailed knowledge he professed in the defence he ultimately provided. It was not inappropriate, in my view, that the Crown should have led the evidence, and explored that apparent contradiction.
30 However, in the result, there was no evidence capable of supporting a finding that the appellant had lied through a consciousness of guilt. There was no occasion, therefore, for a direction in conformity with Edwards v The Queen (1993) 178 CLR 193. Such a direction could only have been justified if the criteria identified by the High Court had arguably been satisfied, namely:
· First, proof of a deliberate lie by the appellant.
· Secondly, proof that the lie was in respect of a material issue, that is a central issue in the trial.
· Thirdly, proof that the lie was told because the appellant knew the truth would implicate him in the commission of the offence.
31 Here one may doubt that the Crown could even establish that the appellant had deliberately lied. Det Napper had not asked the appellant whether he knew anything about the incident which he had just described. He asked for an explanation as to how his fingerprints came to be found inside the unit. The appellant's response (that he had "no idea") may have been literally true. The only statement which may have been a lie, and which was certainly untrue, was the appellant's denial that he had been to the Bridge Hotel at Rozelle. However, even were that a lie, one may doubt that it could have been regarded as a lie concerning a material issue. The events at the hotel took place some time before the incident. Moreover, no suggestion was made in cross examination by the Crown Prosecutor that the appellant had provided answers to the detective through fear that the truth may implicate him in the offence.
32 The Crown, understandably in these circumstances, did not seek a direction in conformity with Edwards v The Queen. Had the issue been abandoned by the Crown, there may have been no occasion for complaint by the appellant. However, the issue was not abandoned. The addresses of counsel were not recorded. His Honour referred to the following submission made by the Crown: (Summing Up 56)
"The Crown says … you will remember what the accused said when he was spoken to by the police officers at the time of his arrest and compare that to what he says to you now remembering that he received the police brief in this matter in February."
33 His Honour then added the following comment: (Summing Up 56)
"All those matters are part of the Crown case and it is for you to determine whether there is any relevance in that or whether there is not. It is entirely a matter for you."
34 Elsewhere in the summing up, his Honour, when reviewing the evidence, referred to the testimony of Det Napper, and the cross examination of the appellant, in the passages set out above. Given the way in which the Crown put its case, the issue arises whether the jury should have been given guidance, were they to take the view that the appellant had lied to Det Napper?
35 Written submissions made on behalf of the appellant asserted the following: (p5)
"If this evidence was relied upon as evidence of consciousness of guilt then directions should have been given in accordance with Edwards v R (1993) 178 CLR 193. If not, then directions should have been given in accordance with Zoneff v R (2000) 200 CLR 234."
36 In Zoneff v The Queen [2000] HCA 28, the Court dealt with a case in which, as here, there was no basis upon which a finding could have been made against the appellant that he had lied out of a consciousness of guilt. The majority (Gleeson CJ, Gaudron, Gummow, and Callinan JJ) said this: (para 20)
"20. It follows in our opinion that it was unnecessary, indeed undesirable, that a direction of the kind with which Edwards was concerned be given in the circumstances of this case. In order to give it in this case the trial judge would have had to decide which of the appellant's answers were or were not capable of being regarded as lies indicative of a consciousness of guilt. Such a direction here could have had the effect of raising an issue or issues upon which the parties were not joined, and of highlighting issues of credibility so as to give them an undeserved prominence in the jury's mind to the prejudice of the appellant."
37 The Court added the following: (paras 22/24)
"22. The trial judge was evidently concerned that, having regard to some of the cross-examination, there was a serious risk that the jury might engage in an impermissible process of reasoning in relation to the matter of lies. Unfortunately, his response was to give a direction which, as Olsson J observed, raised the topic and then left it largely up in the air.
23. A direction which might have appropriately been given and which would have allayed any concerns which the trial judge may have had, in this unusual case, in which the issues may not have been defined as they might have been had the prosecutor made a speech to the jury, is one in these terms:
'You have heard a lot of questions, which attribute lies to the accused. You will make up your own mind about whether he was telling lies and if he was, whether he was doing so deliberately. It is for you to decide what significance those suggested lies have in relation to the issues in the case but I give you this warning: do not follow a process of reasoning to the effect that just because a person is shown to have told a lie about something, that is evidence of guilt."
24. A direction in such terms may well be adaptable to other cases in which there is a risk of a misunderstanding about the significance of possible lies even though the prosecution has not suggested that the accused told certain lies because he or she knew the truth would implicate him or her in the commission of the offence."
38 The Crown case against the appellant was not without difficulty. The events in the unit happened in a rush. The victim was outnumbered, and wounded. His description of his assailants makes it difficult to assign any particular role to the appellant. The Crown's rebuttal of the suggestion by the appellant that he left the unit, substantially depended upon the victim's assertion that the same four people were involved in the events inside and outside the unit. Yet the victim's evidence on this aspect was less than dogmatic. He said this: (T.19)
"Q. You said that they walked you. Can you describe how they walked you?
A. One on either side of me with their arms around me.
Q. Who were the men who walked either side of you with their arms around you?
A. I can't say, I can't recall exactly which of the four, which two of the four.
Q. Where were the other two men when two of them had hold of you by your arms either side?
A. I think just one in front and behind just up close next to me.
Q. So one in front, one behind and two either side?
A. Yeah."
39 Shortly after the victim broke free, and escaped.
40 Two eye witnesses were called. They each saw the victim and his assailants in the street. Their evidence, however, furnished some support for the appellant's account. Each described having seen the victim surrounded by three men, not four. Each acknowledged, however, that his vision may have been obscured.
41 In this context the credibility of the appellant was obviously important. The submission by the Crown attacked the credibility of the applicant's account.
42 Here, I believe that the submission by the Crown, repeated in the summing up, and the prominence given to the issue, created the risk of misunderstanding about the significance of possible lies in the absence of some explanation from the trial Judge (cf R v Galea [2001] NSWCCA 270, paras 84 to 90). I therefore believe that ground 2 has been made out.
43 No redirection was sought by counsel then appearing for the appellant. Rule 4 therefore applies. However Zoneff v The Queen was handed down on 25 May 2000, that is, shortly after the trial. The guidance which it provided was therefore not available either to counsel or the trial Judge. I believe leave to appeal should be granted.
44 The matter is not one for the application of the proviso to s6(1) of the Criminal Appeal Act. In my view the appellant lost a chance, which was fairly open to him, of acquittal.
45 I would therefore propose the following orders: