R v Sirillas [2006] VSCA 234

2 Mr Sirillas has made an application to appeal against his conviction for one count of armed robbery arising from the hold-up of a service station in Craigieburn, at approximately 5.15 am on 23 February 2003.

3 The only person present in the service station when the armed robbery occurred was a young female console operator, Ms Machovic. She testified that she saw the person who later held her up walking past the window of the service station. When he entered the service station he attempted to conceal his identity, by covering half his face with a skivvy, and wearing dark glasses and a beanie. The person pointed a handgun at her, and demanded money. She put the money together with phone cards in a bag. She also complied with a demand to give him her mobile phone.

4 At 6.06 am, approximately 45 minutes after the robbery, the phone that had been taken from the victim was used to make a phone call on a pre-paid mobile service that was connected to the applicant. The victim assisted the police to produce a photofit of the robber and later identified the applicant from a photo board containing a number of photos.

5 In May 2006 a search warrant was executed at the applicant's premises. A pawn ticket was located, which led to the recovery of the mobile phone. Pawning the mobile phone for $60 formed the basis of count two, obtaining property by deception to which the applicant pleaded guilty. The applicant maintained his innocence in respect of the armed robbery.

6 At trial, the applicant gave evidence that he had purchased heroin in the car

park at the Craigieburn Shopping Centre, which was a short distance from the service station at which the robbery occurred. After buying the heroin he had injected himself and was sitting in the car with his friend Mr Cardamone, who had driven him there. The car had its interior light on. The car was approached by two people he did not know, who had offered to sell him a mobile phone. He had purchased the phone and used it shortly afterwards. These events were said to have occurred at some time in the early morning of 23 February.

7 Mr Cardamone, the owner of the car, gave evidence that he was present when two unknown people approached the car in which he was sitting with the applicant in the car park of the Craigieburn shopping centre and the applicant bought a mobile phone from them. This occurred when "It was dark, so it could have been a late night, early morning. That I am nor sure about." He also said that he had turned the interior light of the car on when the applicant returned to the car.

8 Under cross-examination he conceded that he could not remember the time and date when the mobile phone purchase had occurred. The statement he had made when interviewed by the police was put to him. He had initially said that the purchase of the phone occurred between 9 and 10 pm and later said that it may have been between 8 pm and midnight. In explaining this inconsistency he said "Not that I am a hundred per cent certain about those hours. Like, could have been early hours in the morning as well. Like, when its dark its dark, it's dark. That's what I remember."

9 Grounds one and two both relate to the issue of consciousness of guilt. Ground one alleges that:

"The learned trial judge erred in directing the jury they could use the applicant's evidence as to his purchase of a mobile phone as a lie capable of demonstrating a consciousness of guilt in circumstances where there was insufficient evidence for the jury to find that the applicant had lied."

"The learned trial judge erred in failing to direct the jury that they could not use the evidence of identification of the applicant by the witness Machovic in determining whether the applicant told a lie capable of demonstrating a consciousness of guilt."

11 The third ground of appeal was that the jury's verdict was unsafe and unsatisfactory.

Did the trial judge err in directing the jury on consciousness of guilt?

12 In charging the jury, his Honour told them that there were two ways in which the prosecution contended that possession of the mobile phone might be regarded as evidence of the applicant's guilt. First, the jury might draw an inference that the applicant was guilty of armed robbery because he was in possession of the phone, only a short period after the robbery had been committed. The applicant does not submit that his Honour' s direction on "recent possession" was inadequate.

13 Secondly, if the jury were satisfied beyond reasonable doubt that the accused had put forward a false explanation as to how he had obtained the mobile phone, the jury might, in certain circumstances, infer guilt from the fact that the applicant lied about this matter. His Honour gave a very clear Edward's direction on the circumstances in which the jury could regard the applicant's explanation of receiving the phone as a lie, and the use that could be made such a lie. He said:

"...what can you make of the fact that the accused has put forward a false explanation if you find he has done so? So if you find he has made a false explanation, what can you make of that? Well, if you were satisfied beyond reasonable doubt that his explanation was false, that would not necessarily compel the conclusion that he was the perpetrator. However, you would be entitled to take into account the fact that he gave you what you have found beyond reasonable doubt to be a false explanation. If you do conclude that he has given a false explanation, you should be careful concerning what you infer from the giving of a false explanation. People tell lies for all sorts of reasons. Ordinarily, a lie told by a witness, whether the accused or another witness, will merely affect the credit, just the credit, of the witness who tells it. So juries are often warned not to follow a process of reasoning to the effect that just because a person is shown to have told a lie then that is evidence of guilt. Usually the telling of lies is just relevant to the credibility of a witness, that is, there is a reason for not believing the witness or being careful about the witness.

In limited circumstances, however, a lie told by an accused may go further and may amount to conduct which is inconsistent with innocence, and that is the way the Crown puts its argument in relation to this particular false explanation or lie. It may, may, constitute evidence of guilt. Much depends on the nature of the lie and its relevance or significance to the alleged crime.

...

If you were satisfied beyond reasonable doubt that the accused had deliberately and knowingly put forward a false explanation for his possession of the mobile phone and you were further satisfied beyond reasonable doubt that his only reason for doing this was to cover his guilt, or cover his tracks, as the prosecutor put it, concerning the armed robbery, you could use the false explanation as evidence that he is guilty."

14 In the course of argument, counsel for the applicant conceded that no exception could be taken to the content of this direction. Nevertheless it was said that his Honour had erred, in charging on the jury on use of the evidence about the applicant's possession of the mobile phone, for two reasons.

15 First, it was contended that the jury could not reasonably have found that the applicant's statement as to how he came into possession of the mobile phone was a lie. Both the applicant and Cardamone testified that the phone had been bought from two people in the car park and their evidence had not been contradicted. Despite Cardamone's failure to recall precisely when the transaction occurred, he had testified that it was dark at the time. No evidence had been led to contradict the proposition that it was dark in the car park at 6.15 on February 23rd.

16 I do not accept that submission. The jury could well have regarded the applicant's evidence about how he came into possession of the phone, only 45 minutes after it had been stolen from the service station, as improbable. Mr Cardamone's testimony at trial was inconsistent with his statement to the police. His Honour directed the jury clearly that they must be satisfied beyond reasonable doubt that the applicant's story was false.

17 This case is different from R v Edwards,[1] where the accused's explanation for his alleged lie was regarded by Deane, Dawson and Gaudron JJ as so plausible that the jury should not have been told that they could regard it as capable of supporting an inference that the applicant was guilty.[2] In this case there was ample evidence which could have satisfied the jury beyond reasonable doubt that the applicant's statement about how he obtained the mobile phone was false. Accordingly, ground one must fail.

18 Secondly, counsel for the applicant submitted that the alleged lie should not have been put to the jury as evidence from which the applicant's guilt could be inferred, because of the danger that the jury would rely on "bootstraps" reasoning to find the applicant guilty of the offence. It was said that the only other evidence supporting the applicant's conviction was the identification evidence given by the console operator, Ms Machovic, which the applicant's counsel contended was very weak. Mr Carter conceded that his Honour's directions on the use of identification evidence were appropriate. Nevertheless he said that the paucity of the evidence against the accused heightened the risk that the jury would give too much weight to the evidence based on consciousness of guilt, or would use this evidence in a circular manner.

19 Bootstraps reasoning occurs when the jury must assume that the accused has committed the offence with which he or she has been charged, for the purpose of deciding whether the statement they have made is a lie.[3] This is to be contrasted with the case where an assertion of fact is not a general denial of guilt but relates to a material issue which is relevant in determining the accused's guilt. In the latter situation a lie told by the accused may permit an inference to be drawn that he or she lied to conceal guilt, which, when that inference is combined with other evidence, may be sufficient to justify conviction.[4]

20 In this case the Crown relied on an alleged lie about how the applicant came into possession of the mobile phone. While this was material to the prosecution case against the accused, it did not relate directly to the robbery. The inference which could be drawn from the applicant's lie about how he acquired the mobile phone was only part of the evidence the jury was directed to consider. Other relevant evidence included

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the evidence of Ms Machovic, identifying the accused as the perpetrator as the perpetrator of the robbery; and

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the offender's possession of the stolen phone, in a shopping centre a short distance away from the service station and only 45 minutes after the robbery occurred.

21 I would therefore reject the submission that the alleged lie should not have been put to the jury as evidence from which the applicant's guilt could be inferred, because it invited the jury to engage in circular reasoning. Ground two must therefore also fail.

Was the jury verdict unsafe?

22 Mr Carter submitted that the jury verdict was unsafe because of deficiencies

in Ms Machovic's evidence identifying the offender, combined with the jury direction on use of the applicant's lie as evidence of consciousness of guilt. He submitted that Ms Machovic had only had a brief opportunity to observe the offender prior to and during the holdup. He also referred to differences between the photo fit image compiled by the police at her instructions and the appearance of the person she selected from the photos on the photo board. Ms Machovic was cross-examined at length on these matters. His Honour directed the jury extensively on

the use of identification evidence, and emphasised:

"You should consider any evidence of personal identification most carefully. Where possible, you should look for some feature or features of the evidence which tend to make it reliable, obviously. It is very crucial to this case, and that is why I have spent so much time trying to demonstrate the need for care."

23 Accordingly, I am of the opinion that the question of identification was appropriately left to the jury. I would therefore reject ground three, and dismiss the application for leave to appeal.

[1] [1993] HCA 63; (1993) 178 CLR 193.

[2] In R v Edwards [1993] HCA 63; (1993) 178 CLR 193, the central issue was whether the lie could be used to corroborate other evidence implicating the accused.

[3] See for example R v Laz [1998] 1 VR 453 at 466; R v Gionfriddo (1990) 50 A Crim R 327; R v Smith [2002] VSCA 219 at [109].

[4] R v Lam & Ors (Ruling no. 18) [2005] VSC 292 at [26], per Redlich J.