R v Finnan [2005] VSCA 151

2 The applicant in this matter was found guilty in the County Court at Melbourne on 16 February 2004 on one count of making an affray (count 1); one count of intentionally causing injury (count 2); and one count of intentionally causing serious injury (count 5).

3 The applicant was subsequently sentenced on 5 April 2004 to 12 months' imprisonment on count 1; 4 months' imprisonment on count 2; and 30 months' imprisonment on count 5. Six months of the sentence on count 1 and 2 months of the sentence on count 2 were ordered to be served cumulatively upon the sentence imposed on count 5, making a total effective sentence of 38 months. A period of 20 months was fixed as required to be served before the applicant could become eligible for parole.

4 The applicant now seeks leave to appeal against both conviction and sentence with respect to each count.

5 The Crown case was that the offences took place at Collingwood on 12 August 2000. It was alleged a violent affray took place commencing outside the Barleycorn Hotel in Johnston Street involving a number of accused including the applicant. It was said that the applicant was an early and enthusiastic participant in the affray.

6 It was further alleged the applicant intentionally caused serious injury to one H when he punched H to the head without warning in circumstances where H was no more than a bystander.

7 In turn it was alleged the applicant intentionally caused serious injury to S. A co-accused V attempted to attack H with an iron bar and upon S then attempting to restrain V the applicant forced S to the ground holding him while D, a co-accused, stabbed S in the back.

8 The application for leave to appeal against conviction is brought on two grounds. The first ground attacks the adequacy of the learned trial judge's direction concerning lies potentially demonstrating consciousness of guilt. The second ground goes to the adequacy of a re-direction given as to the element of recklessness in alternative charges to counts 2 and 5 upon which the applicant was convicted.

The Edwards direction

9 In the course of his charge the learned trial judge directed the jury as follows:

"Now this direction concerns an argument raised by the prosecutor in his closing address to you, and it is to do with the lies that he says were told to the police by each of the accused men when they were interviewed. ...

Mr Trapnell says that Mr Finnan lied when he was interviewed by the police when he told them that he had never been to the hotel - that he never went to the hotel that night, and secondly he also lied, says the prosecutor, when he denied knowing that people left his house with weapons.

Now the way this is put by the Crown is that these are deliberate falsehoods and they were told by the accused men because they knew that if they told the truth it would implicate them in the crimes with which they have been charged. Thus the Crown argues that these statements, made to the police, show that each of the accused men were conscious of their own guilt and from that consciousness of guilt which he says they have exhibited by making these lies, you can infer that they are guilty of the crimes with which they have been charged.

Now the first thing to be said about this argument by the prosecutor is that it relies upon inferential reasoning, and you will remember the directions I have just given you about drawing inferences. You will realise that such reasoning depends upon your being satisfied beyond reasonable doubt as to the facts upon which it is based and you are also satisfied that the only reasonable inference from those facts is the guilty inference that the prosecutor asks you to draw.

So I want to give you directions about this, and they are as follows: first, you must be satisfied that the accused actually made these statements attributed to them. Now there is no argument here in this case that they did make those statements to the police when they were interviewed. So that is a matter that is not in dispute. Second, you must be satisfied at the time that each of them made these statements he believed they were untrue, in other words that they told deliberate lies to the police rather than simply made mistakes about these matters.

Thirdly, you must be satisfied that the reason for telling the lies was to avoid saying something which each of them thought would implicate him in the particular crimes with which they have been charged. Fourthly, you must be satisfied that the reason that each man thought the truth would implicate him in the crime is that he was aware that he had committed the crime and was seeking to conceal that fact.

So, in order to reach this conclusion, namely that the accused have revealed their own consciousness of guilt by telling lies, you need to consider other possibilities. You need to consider, it is said by counsel here, that they told - both counsel, Ms Cure and Mr Doyle, I think said the same - they thought that when they told these lies they simply were trying to avoid the police thinking that they were there and, hence, by simply being there that they would be implicated in crimes with which they were not involved. Now, you have to, of course, consider that submission by counsel, that the lies were simply to avoid telling the police that they had been there because they were afraid that the simple admission of being there would implicate them in particular crimes with which subsequently they have been charged.

It is important that you realise that in this case the prosecutor asks you in the case of each man to infer that the lies that each of them told showed a consciousness of guilt in respect of all of the crimes with which each man has been charged, not just the first matter, the crime of affray. So the prosecutor casts his net widely and he says, 'This is evidence of guilt of all of the crimes that they've been charged with, not just being there', which I will direct you later has more to do with the crime of affray.

That is the prosecutor's position. However, you must consider each count against each man separately. If you came to the view when considering the first count, affray, that each of the accused men told lies to avoid responsibility for being involved in the affray you may use that finding to show that, in so doing, he was conscious of his own guilt and you can infer that he was guilty, if you come to that view, of the crime of affray. You may not, of course, but if you do use this argument about the lies - and you will consider the first count first in time, of course - it is a matter for you but you may decide that the lie is evidence of guilt in relation to affray. But, if you do that, you cannot automatically go on and make the same inference in respect of the other crimes in Counts 2, 3, 4, 5 and 6. You must look at each count separately and say, 'Am I satisfied beyond a reasonable doubt that the lie or the lies told by the particular accused showed a consciousness of guilt in relation to that particular count which I am then considering?' So you may use it, but only if you consider each one separately."

10 It is submitted that this direction was not in accordance with the principles stated in Edwards v. The Queen[1]. In that case Deane, Dawson and Gaudron, JJ. explained the circumstances in which a lie will not merely affect the credit of the accused as to statements otherwise made by him but amount to conduct constituting an implied admission of guilt.

"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.[2] 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[3] and that it was told because the accused knew that the truth of the matter about which he lied would implicate him in the offence, or, as was said in Reg v. Lucas (Ruth), because of "a realisation of guilt and a fear of the truth".

Moreover, the jury should be instructed that there may be reasons for the telling of a lie apart from the realization of guilt.[4] 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."[5]

11 These passages are to be understood in the framework summarised in R. v. Renzella[6].

12 In the present case the lies relied on were precisely identified, they were concerned with circumstances directly bearing on the offences alleged, and they were told in circumstances where the jury might infer that the explanation for the lies was that the applicant knew the truth would implicate or tend to implicate him in the offences charged.

13 The notice of appeal does not attack the admissibility of the alleged lies as evidence of consciousness of guilt but puts in issue the adequacy of his Honour's directions.

14 In my view the jury were correctly directed that they must be satisfied:

(1) the applicant made the statements in issue;

(2) they were deliberate lies;

(3) the reason for telling them was to avoid implication in the particular crimes charged;

(4) that the reason the applicant thought the truth would implicate him in the crimes was awareness that he had committed the crimes and that he was seeking to conceal the truth;

(5) that they must consider other possibilities such as a desire to avoid implication in crimes in which he was not involved or to avoid telling police that he had been present because of the potential consequences of that simple admission;

(6) they must look at each count separately.

15 It is now submitted on behalf of the applicant that the judge failed to direct the jury adequately as to alternative explanations for the alleged lies. After the direction set out above the case was adjourned until the morning of the following day. Before his Honour resumed his charge an exception was taken to what he had said concerning consciousness of guilt. After discussion with counsel his Honour redirected the jury and went back to the arguments which counsel had put as to possible explanations for the alleged lies by the applicant and a co-accused. The position advanced on behalf of the applicant was summarised as follows:

"Now Mr Doyle, on behalf of the accused Finnan, in also dealing with this matter, said firstly that his client had not told lies, that he does not admit being there and he did not tell lies to the police. But if, in fact, you were against him on that, and you found that he had told lies to the police, then you must consider that perhaps a reason for telling those lies was that he was, in fact, under age and should not have been at the hotel in the first place. The police were accusing them of being at the hotel, amongst other accusations, and he denied that he was there.

Secondly, when it was put to him about people going in and out of his house Mr Doyle says you should consider that he denied all that because if he had not then he would be in a position where the police would be then asking him who those people were and he may not have wished to implicate them.

So Mr Doyle says, as does Ms Cure, that you should take all of these explanations that they put forward into account. Now, it is entirely a matter for you whether you accept those explanations or not, and I remind you that if you were satisfied that the accused men, in making the particular statements they did to the police, if that amounted to a deliberate lie then you must be sure that they did so because they were conscious of their own guilt, and you may use that as going towards their guilt, and you will remember the further directions I gave you yesterday in relation to this matter."

16 No further exception was taken to the redirection.

17 It is now submitted that although the judge did tell the jury 'you need to consider the possibilities' he then merely repeated the arguments of counsel and that this repetition was not given as a direction of law with the authority of the judge's office behind it.

18 In my view the initial direction given by his Honour was a sufficiently full and complete one as to the principles which the jury were bound to apply. The further direction given the following morning elaborated the possibilities which defence counsel in all the circumstances of the case advanced as being credible potential explanations for the lies if the jury were satisfied they were lies. In my view the jury were clearly instructed that it was as a matter of law essential that they consider the question of whether there were alternative possible explanations for the telling of the alleged lies in the circumstances of the case. The judge introduced his directions by reminding the jury of his previous directions as to inferential reasoning and went on to stipulate within a logical framework that the jury must consider alternative possible reasons for the alleged lies other than those which the Crown advanced.

19 This leaves the fact that the judge did not himself hypothesise possible reasons for the alleged lies other than consciousness of guilt, but put back to the jury the matters advanced by defence counsel. It is said this deprived the possibilities in issue of judicial authority. This proposition confuses the fact of reiteration of the submissions made by defence counsel with lack of judicial direction. The judge quite clearly told the jury that they must consider the possibilities of alternative explanations for the alleged lies. It was no error to then remind the jury of the explanations which had been advanced on behalf of the accused by counsel. As counsel for the applicant have put to the Court on appeal in written submissions, they are the most cogent alternative possibilities in the present case. Indeed, it may be thought that reiteration materially emphasised them and gave them weight. The applicant did not give evidence nor was any evidence called in his defence. In these circumstances the judge's direction can hardly be criticised for emphasising defence counsel's submissions as to the possibilities.

20 It is further submitted that the judge erred "by failing to direct the jury that if they accepted that the applicant had lied it could only be used to show a consciousness of guilt in relation to his presence at the scene and not to infer guilt in relation to all counts."

21 In my view the lies relied on were such that it was open to the jury to draw the inference which the Crown invited. It was a matter for them to form their own conclusions on the evidence as a whole as to whether they were prepared to do so. As counsel for the applicant recognised in argument at the trial this was a case where the alleged lies were part only of the case against the applicant. This case included eye witness evidence that the applicant was involved in the affray, punched H in the circumstances the Crown alleged and held onto S when he was stabbed. In these circumstances the jury were entitled to use the lies in the manner contemplated by Deane, Dawson and Gaudron, JJ. in Edwards when they said:

"Although guilt must ultimately be proved beyond all reasonable doubt, an alleged admission constituted by the telling of a lie may be considered together with the other evidence and for that purpose does not have to be proved to any particular standard of proof. It may be considered together with the other evidence which as a whole must establish guilt beyond reasonable doubt if the accused is to be convicted.[7] If the lie said to constitute the admission is the only evidence against the accused or is an indispensable link in a chain of evidence necessary to prove guilt, then the lie and its character as an admission against interest must be proved beyond reasonable doubt before the jury may conclude that the accused is guilty. But ordinarily a lie will form part of the body of evidence to be considered by the jury in reaching their conclusion according to the required standard of proof. The jury do not have to conclude that the accused is guilty beyond reasonable doubt in order to accept that a lie told by him exhibits a consciousness of guilt. They may accept that evidence without applying any particular standard of proof and conclude that, when they consider it together with the other evidence, the accused is or is not guilty beyond reasonable doubt."[8]

22 Whilst it is true that there may have been more difficulty drawing from the alleged lies an inference of consciousness of guilt with respect to specific assaults rather than participation in the affray, the jury were carefully directed that they must consider the question of the inference available separately with respect to each count. Provided that they did this it was a matter for the jury to conclude what inference should be drawn from the alleged lies in the circumstances of the case.[9] In summary the judge's direction both correctly stated the principles to be applied and applied them to the facts in issue in this case. Accordingly this ground must fail.

The directions as to recklessness

23 After they had retired the jury asked a question concerning recklessness. The learned trial judge redirected them as follows:

"Madam forewoman, ladies and gentlemen I will just go through the question as I read it: 'If the principal is found guilty of intentionally causing serious injury can the other defendant be found guilty of the lesser charge (reckless) or must the person aiding and abetting or in concert be equally guilty of the higher charge?'---Am I right in thinking that the second part is really a restatement of the question?---Yes.---Yes, well the answer to your question is yes. If you found that Mr Finnan thought that D was acting recklessly rather than intentionally and then decided either to act in concert with him or to aid and abet him then you can find him guilty of the lesser charge of recklessly causing serious injury despite the fact that you may have already found that D intentionally caused serious injury so that is an option open to you. And you will bear in mind what I have already told you about the onus of proof and the standard of proof and beyond a reasonable doubt and so on. Yes thank you does that answer that question?---Yes, thank you members of the jury you may retire and continue with your deliberations."

24 No exception was taken to this redirection. It is now submitted that it suggested a verdict on the lesser charge was only open if the applicant thought that D was acting recklessly rather then intentionally. I do not accept that this is so. The question was directed to a particular aspect of the law of criminal complicity. His Honour answered it precisely and his answer was to be understood in the light of his previous directions relating to the elements of the charge to which no exception was taken.

25 It was further submitted, and principally emphasised in oral argument before us, that whether the applicant was to be convicted of the alternative count of recklessly causing serious injury fell to be determined 'according to the intention which he held (as opposed to that which he thought D held).' In my view the judge's redirection was directed to the applicant's intention and in particular his understanding of the purpose of the acts undertaken by D. The applicant's appreciation of D's intention was a relevant fact bearing on the circumstances in which the jury were bound to consider whether the applicant decided either to act in concert with D or to aid and abet him. In my view the judge was entirely correct to say what he did. The applicant's understanding of what D intended was necessarily a factor which limited the sense in which he could be said to be complicit in the offence of intentionally causing serious injury. (Thus, for example, there may be a serious question in cases such as the present as to whether a secondary offender understands the principal offender intends to cause serious as against actual injury.)

26 The doctrine of joint criminal enterprise requires a common purpose. The test is a subjective one and the scope of the common purpose is to be determined by what was contemplated by the parties sharing that purpose."[10]

27 Likewise the intention of an accused to aid and abet will at least in a case such as the present, necessarily be informed by his understanding of what the principal offender intended. In Stokes v. Difford[11] a case where the principal offender was convicted of maliciously inflicting grievous bodily harm, Hunt, J. stated:

"In relation to both types of accessory[12], it seems to me, it is usually more appropriate to speak of the accessory's knowledge (or awareness) of the principal offender's intention to do an act with a particular state of mind at the time when the accessory aids, abets, counsels or procures the principal offender to commit the crime in question than it is to speak of the accessory's knowledge of the act done by the principal offender with that state of mind. The knowledge will usually crystallize in the accessory's mind before he involves himself as an accessory to that crime."[13]

28 Mr Priest submitted that this case was an appropriate vehicle for resolving the question left open in Le Broc[14] as to the elements of intent strictly necessary to constitute aiding and abetting of a reckless act by a principal offender. It is clear, however, that neither the jury's question nor his Honour's redirection was directed to this issue. Nor was any ground of appeal directed to his Honour's prior directions concerning this question. The jury's question was premised upon the hypothesis of a finding that the principal offender was guilty of intentionally causing serious injury and was directed to the consequences of such a finding for the potential liability of the applicant as an aider and abettor. His Honour's redirection properly addressed this question.

29 Accordingly, the application for leave to appeal against conviction must fail.

The appeal against sentence

30 The appeal against sentence is brought first on the ground that the sentences imposed were manifestly excessive. I do not accept that this is so. His Honour referred to the maximum sentence for each count being 5 years' imprisonment for making an affray, 10 years' imprisonment for intentionally causing injury, and 20 years' imprisonment for intentionally causing serious injury. His Honour was satisfied that the applicant was involved in a serious affray involving serious injuries to a number of people who were in the circumstances quite innocent. The applicant was part of a group that terrorised another group with knives, broken bottles, iron bars and other weapons. Insofar as the count of intentionally causing injury was concerned, his Honour was satisfied that the applicant punched his victim to the head without any warning at a point in time when that victim was simply standing outside the hotel looking on. Insofar as the count of intentionally causing serious injury is concerned, his Honour was satisfied that the applicant held S down and forced him towards the ground whilst D stabbed S in the back. In so doing the applicant either acted in concert with D or aided and abetted D. The stabbing resulted in a punctured lung. Victim impact statements filed in the Court confirmed that the assault had serious consequences for D and that the affray was traumatic for a number of other persons.

31 At the time of the offences the applicant was 16, having been born on 28 September 1983. At the time of sentence he was 20 years of age. He had no prior convictions save that on 29 April 2003 he was convicted of driving with a blood alcohol level in excess of .05, driving whilst disqualified and carrying a knife.

32 His Honour took into account that the matters the subject of sentence had at the time of sentence been hanging over the accused's head for a relatively lengthy period and that he had had a difficult life, being the son of a mother who was young at the time of his birth and who abused alcohol and drugs. His mother died of an overdose in 1989 and the applicant had had almost no contact with his father. He left school after experiencing problems there at the age of 15 and had a number of part time jobs. He had no skills and an incomplete education.

33 Following the incident which gave rise to the charges of which he was convicted the applicant had gone to live with his grandmother and had supported her.

34 His Honour considered whether the applicant should be dealt with by means of a period of detention in a youth training centre despite the fact that he would be 21 in September 2004. His Honour recognised that in the normal course of events young offenders without prior convictions and reasonable prospects of rehabilitation could expect to be dealt with on the basis that rehabilitation was of uppermost importance. Nevertheless he concluded that the present case was one where the violence and viciousness of the offences was such that principles of denunciation and general deterrence must come to the fore. The fact that the applicant had been caught carrying a knife subsequent to the offences in issue also suggested that specific deterrence was a factor that must be taken into account.

35 In my view the sentences imposed by his Honour cannot be said to be manifestly excessive having regard to the nature and circumstances of the affray and assaults in issue.

36 It is further specifically contended that the judge failed to give any or sufficient weight to the factors of delay and youth as they affected the applicant's case. As I have said, his Honour expressly adverted to and considered both these factors. Moreover it cannot in my view be concluded that he failed to give them

sufficient weight. Accordingly, leave to appeal against sentence should also be refused.

39 The order of the Court is that the applications for leave to appeal against conviction and sentence are each dismissed.

[1] [1993] HCA 63; (1993) 178 C.L.R. 193

[2] See M. v. R., unreported, Court of Criminal Appeal of South Australia, 18 August 1993, at 4-5

[3] See, eg, Credland v. Knowler (1951) 35 Cr. App. R. 48; Tripodi v. The Queen [1961] HCA 22; (1961) 104 C.L.R. 1, at 10; Buck (1982) 8 A. Crim. R. 208, at 214; Reg. v. Preval [1984] 3 N.S.W.L.R. 647, at 650-651; Reg. v. Evans (1985) 38 S.A.S.R., at 348-349; People v. Showers (1968) 440 P. 2d. 939, at 942

[4] See, eg, Lonergan v. The Queen [1963] Tas. S.R. 158, at 160; Broadhurst v. The Queen [1964] A.C., at 457

[5] Above 210-211

[6] [1997] 2 V.R. 88 at 90-92

[7] See Shepherd v. The Queen [1990] HCA 56; (1990) 170 C.L.R. 573

[8] Above at 210

[9] cf. Woolley v. R. (1989) 42 A Crim R 418 at 423-4

[10] Markby v. The Queen [1978] HCA 29; (1978) 140 C.L.R. 108 at 112. See also McAuliffe v. The Queen (1995) 182 C.L.R. 108 at 114; and Gillard v. R. [2003] HCA 64; (2003) 78 ALJR 64 per Gleeson, C.J. and Callinan, J. at 64 [19] and per Hayne, J. at 82-83 [109]-[112].

[11] (1990) 51 A.Crim.R. 25 at 38

[12] I.e. an accessory before the fact and an accessory after the fact.

[13] As the Court of Appeal observed in Le Broc v. R. (2001) 22(13) Leg. Rep. C. 14 after characterising the statement quoted above as useful, the requisite knowledge is sometimes described as "foreknowledge".

[14] Above