Ground 4
47 The next ground of appeal is tied in with the matter I have just discussed. One significant feature of the record of interview was that the appellant had been invited (at p 13 of the ERISP transcript) to state what it was he was doing at about 3o'clock on Saturday 4 August 2001. He said that he had been with a girlfriend whose name was Jasmine Schoengen. He wasn't sure where she lived but he said it was in City Road in Surry Hills or Chippendale. He was there, he said, from about lunchtime until about dinnertime and didn't leave the house. Ms Schoengen was called in the Crown case. She agreed that she had known the appellant for about nine years and that she lived at Unit 3, 76 City Road, Chippendale at the relevant time. A police officer had come to see her and she said that on the day before the policeman's visit, she did not see the appellant at any time during that day; and had in fact not seen him since a couple of weeks earlier than that. The police evidence demonstrated that the police officer called on Ms Schoengen on 5 August 2001. This meant that the appellant had been caught out telling a significant lie.
48 At the trial, although the appellant did not give evidence, he relied upon evidence of a different alibi. This was given by a Mr Washington Olivera. He gave evidence that he had met the appellant at Fairfield Markets on one afternoon between two and four in that afternoon. It was a Saturday and prior to Uruguayan Independence Day on 25 August. The overall impact of the witness' evidence however was that he was quite uncertain about the day he had met the appellant at Fairfield Markets.
49 The submission made by Mr Farmer on behalf of the appellant is that the learned trial judge misdirected the jury in relation to the "lie" concerning his whereabouts on the day of the attempted robbery. It was submitted that the way in which the matter was left with the jury was tantamount to inviting them to convict if they were satisfied that the lie had been told. There was neither explanation of the concept of "consciousness of guilt" nor any proper explanation as to the use to which such a finding could be put. It was submitted that, in all the circumstances, the direction was inadequate and unfair to the appellant and resulted in a miscarriage of justice.
50 Before coming to the form of the direction given by the learned trial judge in relation to the issue of lies, it is significant to note that his Honour, between pages 38 and 43, attempted to summarise in a general way the Crown case against the appellant. His Honour at page 38 had told the jury that the description of the man involved in the robbery given by the various witnesses would not justify a finding of guilt against the appellant. A case based on description alone, he said, would be insufficient. His Honour then introduced the topic of the general Crown case by saying that the Crown in fact relied upon "two different cases". The Crown he said did not rely, except partially, on identification. The Crown relied upon a circumstantial evidence case and a positive evidence case.
51 In the context of those statements his Honour described, correctly, the nature of a circumstantial evidence case. For example, he informed the jury that for the accused to be found guilty on the basis of circumstantial evidence, the jury must be satisfied beyond reasonable doubt that the conclusion drawn from the circumstantial evidence was not only reasonable and rational but was the only reasonable and rational conclusion to make. His Honour gave illustrations to fortify this point. If there were any other reasonable and rational conclusion that could be drawn from the facts not consistent with guilt, his Honour directed the jury that a conclusion of guilt could not be drawn.
52 Secondly, his Honour told the jury that they had to consider all the evidentiary material in this regard. His Honour then identified the Crown's case in relation to circumstantial evidence. It included the fact that some six hours after the attempted robbery the appellant was in the car used in the attempted robbery. He was in the company of a woman who had been, by her own admission, involved in the attempted robbery. She had in her possession, indeed, in her clothing, the knife and the screwdriver used in the attempted robbery. The appellant matched, in a general way, the description of the man involved in the attempted robbery: and finally, his Honour drew the jury's attention to the fact that it was open to them to accept that the appellant had given a false alibi when interviewed by the police.
53 In describing this circumstantial case his Honour expressly said that he put to one side Ms Punzo's identification of the accused as being her co-offender. This evidence, that of Ms Punzo, was described by his Honour as the Crown's positive case. His Honour then went on to examine her evidence in the light of submissions made both by the Crown and trial counsel for the appellant.
54 His Honour then returned to the issue the Crown had described in its submissions as the "false alibi" given by the accused. His Honour said the Crown "relied upon the accused giving a false alibi to police when he was interviewed as an awareness or consciousness of his guilt, attempting to exculpate himself from any involvement in the crime". His Honour then recited the statement by the appellant in the record of interview as to his being with Ms Schoengen and as to what he did with her on that day. His Honour then detailed the evidence of Ms Schoengen which made it plain the appellant had not been with her at the relevant time at all. The summing-up continues at page 48: -
"And the Crown submits to you that, if you accept that it was a deliberate lie, then you might conclude that it was a deliberate lie given with the awareness of consciousness of guilt, seeking to exculpate from involvement in the crime.
As learned counsel for the accused said to you, members of the jury, people do not always act rationally when answering questions particularly from a police person and particularly in a police station. People may do things without thinking. They may do things without much care or concern for the answer. There may be may reasons why a person may do that. It may be, as learned counsel for the accused commented, a panic or fear or a desire to protect someone or a lack of understanding of the question or inability to articulate a response to the question or sleeplessness or drunkenness or many other reasons that I am sure each of you think of reasons why somebody may act other than rationally in any particular circumstance.
Member of the jury, the evidence does not disclose the accused's reasons for his having told police what he did. And you must not speculate about the accused's reasons for having told police what he did. Indeed members of the jury, you must not speculate about anything. As judges of the facts, you are not here to speculate, you are here to make decisions based upon the evidentiary material. And, members of the jury, the evidentiary material does not explain why the accused told police what he told police.
Now the learned Crown Prosecutor submits to you that that alibi, as it is called, and I will come to that in a moment was false and that it was deliberately and consciously given with an awareness or consciousness of guilt in order to exculpate from involvement in the crime. If you are satisfied members of the jury that the accused told police what is recorded on the videotape, and you have the transcript, there is not any doubt that he did, and if you are satisfied beyond reasonable doubt that what he said was a lie and, members of the jury, the learned Crown Prosecutor says that the only conclusion to be drawn is that it was a lie, and a deliberate one, then you may if you wish, and only you can decide whether you want to, draw a conclusion that the accused's alibi to police at that time was given with an awareness or consciousness of guilt seeking to exculpate himself from involvement in the crime."
55 On the next day his Honour made a brief summary of the directions he had given the previous day. This included a summary of the direction regarding the so-called false alibi. At page 4 he said: -
"17. The Crown has presented its case in two different ways, albeit that they overlap. Firstly, a circumstantial evidence case, and secondly, a positive evidence case. Insofar as the circumstantial evidence case is concerned, the Crown has submitted to you that at about six hours after the incident at about 9 o'clock when he was arrested by police, he was in the car used in the robbery in the company of a woman herself involved in the robbery. The woman had the knife and screwdriver used in the robbery hidden inside her clothing. He matches, in a general way, the description of the man involved in the robbery or the attempted robbery I should say. And finally, he gave a false alibi to police when interviewed by police concerning his whereabouts at 3 o'clock that afternoon, or the preceding afternoon, as it was. The positive evidence case is the evidence of Ms Punzo identifying the accused as being her co-offender."
56 And at page 6 his Honour said: -
"20. As to the alibi given by the accused to police when he was interviewed, the evidence does not disclose any reason for the accused giving that alibi, and in the absence of evidence you must not speculate as to the accused's reason for giving that alibi. If in view of the evidence of Ms Schoengen you find that the alibi was false, you are entitled as the judges of the facts to find that the accused gave the alibi with an awareness or consciousness of guilt in the hope of exculpating himself from the offence."
57 The appellant has submitted, as I earlier indicated, that the direction given about the "lie" in the "false alibi" was deficient. The specific deficiency, it is alleged, is that the direction did not inform the jury that they could use such a finding as corroboration of other Crown evidence. The way in which it was left to the jury, it was submitted, was tantamount to inviting the jury to convict if they were satisfied that the lie had been told. There was neither explanation of the concept of "consciousness of guilt" nor any proper explanation as to the use to which such a finding could be put.
58 There is little doubt, I think, that the direction could have been better expressed. The requirements as to a direction in relation to lies constituting evidence of consciousness of guilt are effectively explained in the decision of the High Court in Edwards v The Queen (1993) 178 CLR 193 at 210-211. The requirements may be summarised as follows.
59 It is necessary for the trial judge, in a situation where a lie is relied upon to prove guilt, to identify precisely the lie as well as the circumstances and events that are said to constitute an admission against interest. 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 and that it was told because the accused knew that the truth of the matter about which he had lied would implicate him in the offence or, as was said in The Queen v Lucas [1981] QB 720, because of "a realisation of guilt and a fear of the truth".
60 Moreover, the jury need to be instructed that there may be reasons for the telling of a lie apart from the realisation of guilt. The jury should be told that if they accept that a reason of that kind (for example, panic, to escape an unjust accusation, or to protect some other person or to avoid a consequence extraneous to the offence) is the explanation for the lie, they cannot regard it as an admission. Additionally, the jury needed to be instructed to consider carefully whether the lie is a deliberate one or not.
61 Where the telling of a lie by the accused is relied upon, not merely to strengthen the prosecution case, but as corroboration of some other evidence, the untruthfulness of the relevant statement must be established otherwise than through the evidence of the witness whose evidence is to be corroborated.
62 In The Queen v Dellapratona (1993) 31 NSWLR 123 at 150, this Court (comprising of Hunt CJ at CL, Abadee J and James J) stated: -
"This Court has emphasised that the directions required for lies as formulated in R v Lucas are not to be regarded as indispensable in every case: R v Preval (1984) 3 NSWLR 467 at 650-651. Provided that those directions are interpreted the way they were interpreted by this Court in R v Heyde (1990) 20 NSWLR 234 at 244 (with the exception of the temporary C hamberlain aberration) they are indisputably sufficient as directions of law, to be applied by the judge - as any directions of law must be - to the facts of the particular case. A direction of law which would be sufficient is that, before a lie by the accused can amount to corroboration of particular evidence in the Crown case, the jury must be satisfied that it was a deliberate lie, that it related to an issue in that evidence which is material to the offence charged and that it was told by the accused because he feared that he would be found guilty if he told the truth, or because he was unable to give an innocent explanation or account of his conduct as identified in that evidence."
63 In the present instance, although his Honour made it clear that it was a matter for the jury, there could be no doubt whatsoever that the statement made by the appellant as to his whereabouts on the afternoon of the attempted robbery was a lie. Moreover, the jury would have had little difficulty in concluding that it was a deliberate lie. It was equally plainly the situation that it was material to the offence charged. This was so because it related to the appellant's whereabouts at the very time of the robbery in circumstances where he had been directly implicated by his co-offender Ms Punzo. Nevertheless, his Honour included in the direction the considerations necessary for a proper direction, namely that the jury were entitled to consider whether the statement made in the ERISP was one made irrationally or for reasons that did not reveal a consciousness of guilt.
64 The direction, in the passage which I have set out above, was, when considered alone, defective in that it ought to have included a statement that if the jury thought there was a reasonable possibility that the lie was told for one of the reasons identified by his Honour, such as irrationality, panic, sleepiness, drunkenness etc, then it could not be used for the purpose of showing that what was in the mind of the appellant was guilt of the offence charged. It needs to be recalled however, that his Honour had made it clear at the earlier part of his summing-up that the false alibi was part of the circumstantial case and his Honour had given very clear directions as to the way in which circumstantial evidence might and might not be used against the appellant.
65 The other possible deficiency in the direction is that it did not, in terms, tell the jury how they might use the evidence if they concluded that it was a deliberate lie made with an awareness of consciousness of guilt and seeking to exculpate the appellant from involvement in the crime.
66 Again, in my opinion, his Honour had made it clear in the earlier part of the directions he had given that the jury might use this evidence as part of the circumstantial evidence case against the accused. I do not think that there is any substance in the suggestion that the jury were left with the impression that if they found the lie had been told and told deliberately in consciousness of guilt that they then might, and for that reason alone, convict the appellant.
67 I have come to the conclusion that there is no substance in this ground of appeal. Standing on its own, the direction I have detailed does have two arguable deficiencies in it but these I consider were remedied by the summing-up when read as a whole. Moreover, there was no re-direction sought by trial counsel nor was any complaint made regarding the form of the direction. Leave is necessary to take the point. I am satisfied however there was no miscarriage of justice. I shall return to this aspect of the matter at the conclusion of a consideration of all the grounds of appeal in the conviction appeal.
68 A subsidiary submission was made regarding a further possible lie mentioned in the summing-up at pages 10 and 11. This was on the second day of the summing-up. His Honour had dealt with the identity of the motor vehicle involved in the attempted robbery. He then said: -
"Concerning ownership of that vehicle, you know that the accused was asked about ownership of the vehicle and he denied being the owner of it, and that is his answer to question 36 in the record of interview. You have the evidence of Sergeant Villiotis that a week later he returned to the police station saying that he was the owner of the vehicle and wanted it back. Both cannot be right, both can be wrong, but both cannot be right. You might ask yourselves which one is a lie. Perhaps you do not need to decide which one is a lie, because one has to be, you cannot not be the owner but be the owner. You might think, members of the jury, that somebody who lies about one thing, which ever it is, might lie about other things."
69 His Honour then went on to remind the jury of the statement by the appellant in the record of interview when he told the police that he picked the car up from the El Cortez Hotel at about 8pm that evening.
70 Mr Farmer complained that his Honour did not distinguish this type of "lying" from the type exposed by the false alibi. He was critical of his Honour's remark that if someone lies about one thing they may lie about other things. He was particularly critical that his Honour, by contrast did not use such an expression to describe the evidence of Ms Punzo.
71 It needs again to be clearly stated that no complaint was made at trial to any aspect of the passage that I have quoted. Nor was any direction sought by counsel suggesting that a similar comment should be made about the evidence of Ms Punzo.
72 But in any event, a number of things may be said about this submission. First, the learned trial judge had given very detailed directions about the false alibi and whether the jury might use the lie, if they found it was a lie, as evidence of consciousness of guilt. I have set that out earlier in these reasons. His Honour's remark about the second lie occurred a day later in the context of his reviewing remarks made by the appellant in the record of interview in relation to the topic of the identity of the car and car ownership. I do not consider that there is any likelihood whatsoever that the jury were likely to confuse one lie with the other or to overlook what his Honour had said about the false alibi. Secondly, trial counsel had made a substantial attack upon the credit of Ms Punzo and told the jury they should disbelieve her because she was a liar, amongst other things. His Honour drew the jury's attention to the conflicting submissions of the Crown and the accused in relation to Ms Punzo's credit. In describing both the Crown and accused's view of Ms Punzo he referred to the lies she had told to the police as to the identity of the person arrested with her; and to her lies subsequent to her arrest. He referred to the fact that she had been dealt with by a court for stealing and pawning stolen property. He said the Crown "notwithstanding if I may use this expression, the black marks against her, said you should accept her evidence" (T 12 December 2002 page 44).
73 The trial judge then recited the submissions of counsel for the appellant. This included the submission that she was a drug user; that she had used drugs the day before the incident; that she had lied to police about the identity of the person who was with her when stopped by police and other matters including the fact that she had stolen from the person where she was staying and had pawned the stolen goods. He repeated counsel's submission, after the rhetorical question "How can you accept her evidence? How can you believe her?"
74 I agree that his Honour's comment that the jury might think if someone lies about one thing they might lie about other things was not a particularly helpful comment. It did not lead anywhere but I am satisfied that the jury would not have made improper use of it. It was, in effect, a comment on the fact that such a lie, if it were found to be have been told, might affect the credibility of the witness. But I do not consider that it went any further. Nor do I think his Honour needed to repeat the same remark about Ms Punzo especially when the forceful submissions of trial counsel and the concessions made by the Crown that she had lied were plainly before the jury and were mentioned during the summing-up in the context to which I have made reference.
75 The final matter of criticism rises from his Honour's categorisation of the Crown case as being both a direct evidence case and a circumstantial evidence case. The thrust of the submission in relation to this final matter is counsel's argument that once his Honour had dispelled the notion that the jury could convict the appellant on the identification evidence of the various witnesses there no longer remained a circumstantial case. The Crown case could then only be categorised as a direct evidence case depending entirely on Ms Punzo.
76 I do not agree with this submission. His Honour made it clear to the jury that the circumstantial evidence remaining in the Crown case was the fact that the appellant and Ms Punzo were travelling in the robbery car a relatively short number of hours later on that day; the fact that the licence plate was taken down by one of the witnesses near the Smithfield shop; and that Ms Punzo, an identified perpetrator, was carrying the screwdriver and knife on her person. In addition, there was the false alibi and the fact that the descriptions given in the Crown case in a general way were supportive of the Crown case that the appellant was the robber. These matters taken together were of some substance in the Crown case and I consider that his Honour was right in putting the case in the manner that he did.
77 Mr Farmer submitted that, in effect, the jury were told that they could convict even if they did not accept Ms Punzo's evidence. This comment, with respect, is to distort the lengthy directions his Honour gave in relation to the circumstantial case. To simply direct the jury that, if they were not satisfied with Ms Punzo's account beyond reasonable doubt, they should acquit the appellant would have been quite unfair to the Crown. I see nothing unfair to the appellant in the manner in which his Honour left the Crown case to the jury. His Honour dealt with the appellant's second alibi at pages 50-51 and made it clear that the onus lay upon the Crown to convince the jury to reject the alibi and to do so only if they were satisfied that they were entitled to reject the alibi beyond reasonable doubt. His Honour stressed, in relation to this matter, that no onus whatsoever lay upon the accused.
78 Looking back on the various grounds of complaint, it is apparent that with one exception, that relating to the re-examination of Ms Punzo in relation to her own record of interview, none of these points were taken by trial counsel. Directions that have been complained of were not the subject of any complaint at trial. Nor was there any request that additional directions or corrected directions be given. The trial was a short one and the accused was represented by very experienced trial counsel. A reading of the transcript demonstrates, in my view, that trial counsel conducted the trial the way he wanted to. In respect of a number of the matters complained of, leave is necessary from this Court. But in relation to the trial overall, and to each of those specific matters, I am positively satisfied that there has been no miscarriage of justice. The Crown case was a very strong one. The trial judge remarked on sentence that the jury's verdict did not surprise him as the Crown case was "strong, if not overwhelming". That is also the impression I received from a careful reading of the entire trial transcript.