R v Redmond & Anor [2006] VSCA 75

2 The applicants seek leave to appeal against their conviction on a joint charge of perverting the course of justice after a trial in the County Court at Warrnambool. Nicole Redmond was sentenced to be imprisoned for a term of three months. Michael Redmond was sentenced to be imprisoned for a term of four months. Both sentences were suspended for a period of twelve months.

3 It was alleged in the presentment that the applicants -

"Between the 18th day of December 2003 and the 24th day of December 2003, with intent to pervert the course of justice, did a series of acts which had the tendency to pervert the course of justice in that they

(a) approached Jason Lee Fleming and attempted to persuade him to give a false account as to who was present and what occurred during a trip to Tower Hill on or about the 7th day of December 2003; and

(b) when questioned by the police, gave a false account as to who was present and what occurred during a trip to Tower Hill on or about the 7th day of December 2003."

4 The applicants are brother and sister. In December 2003, Nicole Redmond was 24 years old and Michael Redmond was 22 years old. In the trial of the applicants, a 13-year-old girl (whom I shall call "the complainant") gave evidence that she and a number of other young persons spent the night of Saturday 6 December 2003 driving in cars and visiting houses in Warrnambool. At about midnight, Michael Redmond retrieved his car from his sister's house. One of their friends, Jason Fleming, drove Michael Redmond's car, containing the complainant, Michael Redmond, Daniel Leonard and Amber Harris, to Tower Hill. Nicole Redmond was not in the party. When they arrived at Tower Hill, the others left the complainant and Michael Redmond alone in the car. Later, Jason Fleming drove the group back to the house from which the expedition had started.

5 On 11 December 2003, the complainant told her mother that she had had sexual intercourse with Michael Redmond at Tower Hill. On 14 December 2003, the complainant made a statement to the police. The complainant's account of the trip to Tower Hill was corroborated by Daniel Leonard. He said that Nicole Redmond was not in the car. Jason Fleming confirmed that he drove the car to Tower Hill. He said that a few days later he was approached by Nicole Redmond, who told him that Michael Redmond had been "taken in". Nicole Redmond asked Fleming whether the police had been to see him and he said they had not. She told him that the police would be coming to see him and that he should tell them that she, Nicole Redmond, drove the car on the trip to Tower Hill. She told him that he was to say that he was sitting in the back seat behind the drover. A policeman gave evidence that on 15 December 2003 he spoke to Michael Redmond and said that he wanted to question him about the night of 6 December and the following morning as to "allegations of sexual penetration of a girl under 16".

6 On 18 December 2003, Michael Redmond was arrested and interviewed by the police. He said that at about one o'clock in the morning of 7 December 2003 he telephoned his sister and she drove Michael Redmond, the complainant, Jason Fleming and another girl called Amber to Tower Hill. When they arrived at Tower Hill he left the car and went to a public toilet. He kissed the complainant, who was standing outside the car. He said that his sister remained in the car and that he and the others entered the car again and his sister drove them back to Warrnambool.

7 Later on 18 December 2003, Nicole Redmond was asked to attend at the police station in Warrnambool. There she made a statement that, at about 12.30 a.m. on 7 December 2003, Michael Redmond, a friend of his and two girls arrived at her house. Michael Redmond asked her to take them for a drive. She drove them in Michael Redmond's car to Tower Hill. The statement continued:

"We then got to Tower Hill and drove through the main gateway down into the drive area where you go into the park. I stopped at the toilets in the centre and they all got out and went to the toilets. I stayed in the car. Everybody else got out. They weren't gone very long and then everyone's got back in. Michael got in the front as before and the others in the back. I don't know where in the back seat each was seated. As soon as they were all in, I started the car and drove back into town."

In records of interview that day and on 24 December 2003, Nicole Redmond repeated the version of events of the morning of 6 December 2003 that she gave in her first statement.

8 The applicants did not give evidence and no evidence was called on their behalf.

9 Michael Redmond was charged with two counts of sexual penetration of a child under the age of 16 years. The trial of those charges immediately preceded the applicants' trial on the charge of attempting to pervert the course of justice. Michael Redmond was acquitted on each sexual offence charge.

10 Each application was supported by a large number of grounds. It is only necessary to refer to one of them in order to dispose of the applications. The ground, which was the same in each application, was:

"The trial of the applicant miscarried because of the introduction by the prosecutor of consciousness of guilt and failure of the trial judge to direct on this matter."

11 In the course of his final address, the prosecutor accused Michael Redmond of telling a number of lies and asserted that the lies exhibited a consciousness of guilt. He said:

"Mr Redmond, it comes out of his own mouth, the lies. The lies come out of his own mouth. It goes on: 'So me and [the complainant] and my sister went for a drive out there.' That's a lie. Question 54, 55. 'Who was driving?' 'Nicole Redmond.' Lie. 'Who else was in the front?' 'I was in the front. [The complainant] and Jason were in the back seat.' Again that's a lie. He goes on, goes on, question 83: 'Who was in the car?' '[The complainant] and my sister.' 'Did your sister get out of the car?' 'No, she didn't.' 'Your sister stayed in the car the whole time?' Answer: 'Yes.' 'Who else was in the front?' 'My sister.' Those are all lies, we say. 'I was behind my sister. [The complainant] was in the middle, then my sister drove us back to Corey's.' That's a lie also. Later on: 'It's alleged you've come back into Warrnambool and you end up back at Corey's grandmother's house.' 'Yes, we did, and my sister dropped us off.' Again that's a lie. Lies throughout. And as I said to you, why do people lie? They lie through what we lawyers call a consciousness of guilt. They know they've committed an offence, so they tell lies. You know that, you know why people lie, because they've done something wrong."

12 The prosecutor did not identify the offence which the applicant was conscious of having committed. If he had done so, the misconception upon which his address was based would have been revealed. The only offence which could have induced Michael Redmond to tell the lies of which he was accused was sexual penetration of a girl under the age of 16 years, but that offence was not in issue in these proceedings. The so-called lies could not exhibit consciousness of guilt of the offence of attempting to pervert the course of justice. The alleged lies were an important ingredient of the offence with which the applicant was charged. Nothing was said about the prosecutor's astonishing attack, either by counsel for the applicant or by the trial judge. In my opinion, it was capable of misleading the jury and causing them to reason that the applicant was guilty, simply because he lied, without staying to consider other matters such as mens rea on the part of the applicant.

13 The prosecutor's attempt to use lies as exhibiting consciousness of guilt was directed only to Michael Redmond. The effect of the attack, nevertheless, flowed through to Nicole Redmond, for the trial judge on several occasions told the jury that they would have to return the same verdict in respect of both applicants.

14 Accordingly, in my opinion, the trial of the applicants miscarried. In the circumstances of this case, and in particular the fact that the central issue involved the credibility of witnesses, I do not think it is possible to say that no substantial miscarriage of justice occurred within the meaning of s.568(1) of the Crimes Act 1958.

15 Counsel for Michael Redmond submitted that the out-of-court statements by Nicole Redmond were inadmissible against Michael Redmond and without that evidence there was no case against Michael Redmond. The prosecutor at the trial put the Crown case as one which depended upon the existence of an agreement between the applicants. It was said that an acquittal should be entered.

16 There are several answers to this contention. One is that the particular in paragraph (b) of the presentment did not depend upon the out-of-court statements of Nicole Redmond. The falsity of Michael Redmond's statements to the police could be established by the evidence of the Crown witnesses who participated in the expedition to Tower Hill. Another answer is that it was permissible to use the statements made by Nicole Redmond, not as proof of the truth of an assertion that there was an agreement between the applicants, but as facts from which the agreement might be inferred.

17 In Ahearn v. The Queen[1], the court said:

"Conspiracy is the agreement of two or more persons to do an unlawful act or to do a lawful act by unlawful means, and it is the fact of the agreement or combination to engage in a common enterprise which is the nub of the offence. This fact can seldom be proved by direct evidence of the making of an agreement and must in almost all cases be proved as a matter of inference from other facts, that is to say by circumstantial evidence. For this purpose, evidence may be led which includes the acts or declarations of one alleged conspirator made outside the presence of the others, provided such evidence is not led to prove against the others the truth of any assertion or implied assertion made by the actor or the maker of a statement. It may take the form of evidence of separate acts or utterances from which the fact of combination might be inferred. Led in that way, it is not hearsay and is not dependent upon some circumstance to take it outside the hearsay rule, such as an implied authority making the acts and words of one the acts and words of the other."

18 For the foregoing reasons, I would grant the application, allow the appeal and set aside the convictions. As that result is not the consequence of the evidence at trial being held to be insufficient, normally there would be a direction for a new trial. Nevertheless, s.568(2) of the Crimes Act confers a discretion which, in exceptional circumstances, may be exercised by directing a verdict of acquittal. See, for example, R. v. Bartlett[2]. In the present case I think that circumstances do warrant verdicts of acquittal. The sentences have been fully served. The operational periods have expired, and there has been no breach during the operational periods. The Crown

concedes that in the event of a re-trial the Crown would not seek the imposition of any higher sentence.[3]

19 Accordingly, I would grant the application for leave to appeal, hear the appeals instanter and allow them, quash the convictions sustained by the applicants, set aside the sentences passed thereon, and direct a judgment and verdict of acquittal on each count.

20 For the reasons stated by Buchanan, J.A., I too would grant leave to appeal against conviction, allow the appeals, quash the convictions and set aside the sentences.

21 The conduct of the trial below was unfortunate and gave rise to a series of errors following the unnecessary complication of what ought have been a relatively straightforward case for the prosecution to present. Regrettably, the errors bring matters to where they now stand, as described by Buchanan, J.A.

22 It is, of course, open to this Court to remit the matter for re-trial. However, in light of the circumstances since sentence, and on the basis of similarity with the disposition in R. v. Tadic,[4] this appears to be an appropriate case to direct an acquittal. While the Director would doubtless run the case differently in the event of a re-trial, it seems, in view of the concessions made by Mr McArdle before this Court, that the prospects of re-presenting for a second trial are unlikely. In the somewhat unusual circumstances of this case it seems that there is no real utility in ordering a re-trial. Hence, I would also direct an acquittal.

23 I would further observe that there was in this case the prospect nevertheless of the invocation of the proviso. Since the High Court judgment in Weiss v. The

24 Queen,[5] that is a more complex and difficult process than was previously so. In my view the present case was one, due to its inherent nature, that was not a suitable vehicle for such application as contemplated by the High Court. I did not, and would not, therefore, entertain the application of the proviso.

25 I agree with the disposition of the applications proposed by Buchanan, J.A. for the reasons given by his Honour. I would add the following.

26 It is very unsatisfactory that a trial should miscarry because a prosecutor should raise in final address, in strident language, a contention that the conduct of an accused person evidenced consciousness of guilt - an assertion which in this instance was not only late made but which completely misunderstood the nature of the prosecution case. It is, regrettably, not the first occasion in recent times in appeals upon which I have sat that such a thing has occurred. The cost, emotional and financial, for litigants and the community becomes very great if, as may often occur, a re-trial is necessary. It is, accordingly, very important that prosecutors should not embark upon consciousness of guilt submissions without careful consideration whether such submissions are apposite.

1. The application for leave to appeal against conviction is granted.

2. The appeal is treated as instituted and heard instanter and is allowed.

3. The conviction sustained by the appellant in the court below is quashed and the sentence passed thereon is set aside.

4. The Court directs a judgment and verdict of acquittal to be entered.

5. The Court grants to the appellant an indemnity certificate pursuant to s.14 of the Appeal Costs Act 1998.

The same order is made with respect to each appeal.

[1] [1988] HCA 39; 165 C.L.R. 87 at 93.

[2] [1996] VICSC 47; [1996] 2 V.R. 687 at 699.

[3] Compare R. v. Tadic [2003] VSCA 28 at [24] and [25], per Callaway, J.A.

[4] Ibid.

[5] [2005] HCA 81 (15 December 2005).