"It (the Crown case against the appellant with respect to his alleged flight) depends upon you accepting Bakos and Oshana that, walking away from the scene, they saw Gilbert and Richard and that Richard walked back. The Crown suggestion being that he was making his way from the scene by way of flight, but then realised he had a problem, in that his car was still there and he had to go back and get it, otherwise there could be some difficulty for him with the police if his car, effectively, was abandoned there. Because no doubt, it being registered in his wife's name, some questions would be asked which may go back to him"
50 A little later in the summing-up the trial judge said with respect to the evidence of lies:-
"The Crown does rely upon that denial, as I have pointed, of going anywhere near David Carty, both as a lie and as a matter going to his guilt".
51 Shortly afterwards in the summing-up the trial judge said with respect to the evidence given by Acting Inspector Dossantos:-
"Another matter which the Crown relied upon in relation to Richard was the evidence of Dossantos that he pushed a man in the hotel and told him to keep quiet. The description Dossantos gave, the Crown suggested, fitted Richard; 30 to 35, medium build, short brown hair, moustache, dark jumper, scratches on his neck.
The Crown invited you to infer that the reason for that was to discourage that witness talking, because of the fear that that witness might implicate him, Richard, in this incident. We need to be cautious about that. First of all you have to be satisfied that Dossantos did identify the right man. You also have to be satisfied that he was protecting himself, not trying to protect someone else, because unless he was protecting himself, then you really can't infer consciousness of guilt on his part, from it. You also bear in mind although he admitted he was the person to whom police spoke about this act, he did, in fact, deny pushing anybody, so you can't infer from that actual conversation, or interview, that he actually did push another witness".
52 As regards Mrs Salwa's evidence (and brief evidence given by her husband) the trial judge said:-
"Joining in the burning of the clothes and the threats to Salwa and the warning about the phone and the bugging and the instruction not to tell them about anything after the car was examined, are matters the Crown relies upon as indicative of consciousness of guilt on the part of Richard".
53 The trial judge continued:-
"For all these things I give you the similar caution as I gave a moment ago, that some of these things may be as consistent with trying to protect Gilbert, as himself. You cannot infer consciousness of guilt unless you are satisfied, beyond reasonable doubt, that when he did any of these things, if he did do them, or had any of these conversations, that he was doing so because of the consciousness of his own guilt, as distinct from trying to protect Gilbert. It would not be enough for you to weigh against Richard, if there was a reasonable possibility that what he was doing was protecting Gilbert".
54 In directing the jury to the effect that before any lie or any other conduct on the part of the appellant could be used as evidence of consciousness of guilt, the jury would have to be satisfied beyond reasonable doubt that the lie was told or the conduct was engaged in and would also have to be satisfied beyond reasonable doubt that the lie was told or the conduct was engaged in solely out of consciousness of his own guilt and not for any other reason, the trial judge's directions may have been unduly favourable to the appellant. In the leading High Court decision of Edwards v The Queen (1993) 178 CLR 193 Deane, Dawson and Gaudron JJ said at p210:-
"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. 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".
55 Since Edwards it has been repeatedly held by this Court that "where lies are used merely as evidencing a consciousness of guilt, as part of the circumstantial evidence case, it is unnecessary to establish either the lie or its character beyond reasonable doubt" ( R v Taylor (unreported 18 April 1995 at p19 per Hunt CJ at CL, citing R v Dellapatrona (1993) 31 NSWLR 123 at 150; R v Sandford (1994) 72 A Crim R 160 at 181: R V Small (1994) 33 NSWLR 575 at 596.
56 In R v Moore (unreported Court of Criminal Appeal 21 June 1995) Gleeson CJ said at p16:-
"Furthermore, the directions which Wood J gave to the jury on this matter went very close indeed to telling the jury that they had to be satisfied, beyond reasonable doubt, that there had been a lie told from a consciousness of guilt, before they could add this to the circumstantial case against the appellant. The directions contained references to that being the only rational inference available. In this respect, the directions may have been unduly favourable to the appellant".
57 We are conscious, and his Honour may well have had in mind, that some doubt has been thrown on the proper standard of proof of some items of circumstantial evidence by the recent decisions of the High Court in Gipp v The Queen (1998) 72 ALJR 1012 and Penney v The Queen (1998) 72 ALJR 1316.
58 The principal submission made by counsel for the appellant in support of this ground of appeal was that the trial judge should not have left any of the various items of evidence to the jury as being capable of constituting evidence of consciousness by the appellant of his guilt, because another explanation of his actions, that he had acted as he had done, out of consciousness of the guilt, not of himself, but of his brother Gilbert, was available and so plausible that it would not have been open to the jury to be satisfied, particularly to the standard of proof beyond reasonable doubt required by the trial judge's directions, that the appellant had acted out of the consciousness of his own guilt.
59 Reference was made in the course of argument to a passage in the joint judgment of Deane, Dawson and Gaudron JJ in Edwards at pp212-213, where their Honours said:-
"Whilst in many cases it must be a question for the jury whether a lie was told because the truth was perceived to be inconsistent with innocence or for some other reason, if it was established that there was a deliberate lie in this case about a material matter (and we do not think that it was), the innocent explanation for that lie was so plausible that the lie could not have been probative of guilt. Quite apart from our concerns about the existence of the lie and its materiality, this should have prevented the trial judge from concluding that the telling of the lie was capable of amounting to corroboration of the complainant's evidence".
60 It was properly conceded by counsel for the appellant that the mere availability of another explanation for an accused's conduct will not prevent a trial judge leaving evidence of the conduct to the jury as being evidence capable of amounting to evidence of consciousness of guilt. It was also conceded that the trial judge in the summing-up had strongly directed the jury that they could not use evidence of conduct by the appellant as evidence of consciousness of guilt, unless they were satisfied that the reason for the conduct was an awareness of his own guilt and not some other explanation, in particular a desire to protect some person other than himself, namely his brother Gilbert.
61 In our opinion, the assertion by Richard Adam to the police in the answer to question 192 of the interview of 18 April 1997 to the effect that he had not gone anywhere near a police officer lying in the car park was capable of constituting evidence of consciousness of guilt and was properly left to the jury. It is significant that in the immediately preceding questions the appellant had been asked about spots of blood which had been found on his shoes, which might be capable of incriminating him personally in the assaulting of David Carty. As we have indicated earlier, the alleged lie that the appellant did not see anyone on the ground in the car park of the Cambridge Tavern, apart from an Assyrian, was not in fact left to the jury as conduct of the appellant capable of amounting to consciousness of guilt.
62 The evidence relied on by the Crown as being evidence of flight, that the appellant was observed walking away from the car park with his brother "at a normal pace", being with his brother at the service station and walking back to the car park and moving his car a short distance within the car park was, in our opinion, so deficient in establishing that there was any "flight" at all or that the reason for any flight was consciousness of his own guilt, and not consciousness of his brother's guilt, that it should not have been left to the jury as evidence of consciousness of guilt.
63 As regards the evidence by Inspector Dossantos, there is an initial question whether it would be open to the jury to find that the person who pushed another person and told that other person to "shut up" was the appellant. In our opinion, it would have been open to the jury to make such a finding, on the basis of the description of the person given by Dossantos (including the recent facial scratches), which fitted the appellant and the admission by the appellant that a police officer had told him to stop pushing (even if the appellant did not admit that he was pushing). We are also of the opinion that this evidence was properly left to the jury as capable of amounting to evidence of consciousness by Richard Adam of his own guilt.
64 With regard to the evidence by Mrs Salwa that three days after Gilbert Adam had come alone to Mrs Salwa's house and asked Mrs Salwa to hide the pants he had been wearing on the night of 18 April 1997, the appellant had come with Gilbert Adam to Mrs Salwa's house and had participated in the burning of Gilbert Adam's pants, an explanation for the appellant's conduct that he was acting to protect his brother was so plausible that it would not have been open to the jury to regard the appellant's conduct as showing consciousness of his own guilt and accordingly this evidence should not have been left to the jury as capable of showing consciousness of guilt on the part of the appellant. On the other hand, the appellant's conduct in telling Mrs Salwa not to say anything was, in our opinion, capable of constituting conduct engaged in out of consciousness of his own guilt and was properly left to the jury.
65 We have held that the evidence of "flight" and the evidence of participation by Richard Adam in the burning of his brother's pants should not have been left to the jury as capable of amounting to evidence of consciousness of guilt. However, we do not consider that there was any miscarriage of justice or any risk of any miscarriage of justice, because these items of evidence were left to the jury. The directions given by the trial judge to the jury, which as we have observed may have been unduly favourable to the appellant, and which the jury must be taken to have followed, were such that there was no real risk of the jury finding that any of these items of evidence showed a consciousness of guilt on the part of the appellant.
66 We would reject this ground of appeal.