Ground two - his Honour erred in his directions to the jury about the appellant's flight
42 Prior to the commencement of the summing up there was discussion as to the content of the directions to be given. The Crown Prosecutor invited the trial judge to give a direction on flight as evidencing consciousness of guilt. Mr Cook submitted that no such direction should be given. He contended that the Crown could only rely on flight as an admission if it were possible to reason from the fact of flight to guilt of the offences charged in the indictment. It was the appellant's case that he had gone to the premises in company with the co-offenders to assault Mr Lo in order to recover the debt owed to Den. He was to be paid $200 for his assistance. His flight was equally referable to his awareness that this was wrongful conduct.
43 His Honour heard further submissions concerning the directions which it was proposed he should give and then returned to the question of flight. After a short adjournment he referred counsel to the decision of the South Australian Court of Criminal Appeal in Regina v Power (1996) 87 A Crim R 407. He indicated an intention to give a direction on flight to which Mr Cook observed, "my position is that I oppose that" (T21/6/01 at 8).
44 The direction which was given on the topic of flight is as follows:
"The direction of law I give you is that if you are satisfied beyond reasonable doubt that the accused fled the scene of the alleged assault and alleged robbery you may draw an inference against him that he acted in that way because he believed that he was a knowing and willing participant in either or both of the two alleged offences. But before you can draw that inference you must be satisfied beyond reasonable doubt that there is no other reasonable explanation for the fleeing and hiding, in all of the circumstances. You need to remember the conduct of this sort, that is fleeing a crime scene, may sometimes be explained in other ways. For example, simply as a result of panic or fear of the police or others, a desire to protect another person or other persons, or to avoid a consequence unrelated to the alleged offence or offences.
The accused told the police that he ran away because Den told him to do so. That is in Exhibit "H", the typed transcript of the police interview, at questions and answers 349 and following. And further, that he hid in the park, and I will quote from the record of interview (question and answers 375 to 376 Exhibit H). He said that he hid in what he referred to as the park "because I saw someone put the light in, you know, to the park, so we lied down'.
If you are satisfied that the accused was motivated to flee and hide by a consciousness of guilt then before that can assist the Crown you must be further satisfied that what was in his mind was guilt of one or both of the particular offences charged and not some other offence. If you are so satisfied you are entitled to use that finding in aid of the other evidence, the circumstances of the case, that is in the Crown case as pointing to the guilt of the accused. But standing alone it could not prove guilt. It is just one of the circumstances to take into account.
The accused denied in his police interview that he participated in any plan to rob Mr Lo and said that neither he nor his brother had a gun. He said that he had gone to the meat market premises to "bash up" or "talk to" the proprietor on behalf of Den. He said that he was duped by Den who unbeknown to himself had a gun, and that without his knowing and willing participation, Den, alone, robbed Mrs Yin. That is different from what the accused has been charged with and that is a matter for you yourselves to weigh up and evaluate (SU23-25).
45 The trial judge then went on to remind the jury of the account the appellant gave in the interview that he had gone to the premises "to bash up" the proprietor on behalf of Den.
46 The complaint advanced by this ground is that the evidence of flight was not capable of supporting an inference of the appellant's guilt of the offences charged in the indictment.
47 Mr Strickland referred us to the decision of the Supreme Court of Canada in Arcangioli v The Queen (1994) 111 DLR (4th) 48. In that case the appellant was charged with an aggravated assault. He was said to have stabbed the victim in the course of an altercation. The appellant admitted to punching the victim but claimed that a third person had approached the two of them during the altercation. This third person was said to have stabbed the victim. The trial judge gave the jury a direction on flight as evidencing consciousness of guilt. She went on to draw attention to the circumstance that people may flee the scene of a crime out of panic, even if entirely innocent.
48 The Court in Arcangioli referred to the judgment in United States v Myers 550 F.2d 1036 (1977):
"The test articulated in Myers provides helpful guidance on the inferences that may be drawn from evidence of an accused's flight (or other possible indicia of consciousness of guilt, such as lying). Such evidence can serve the function of indicating consciousness of guilt only if it relates to a particular offence. Consequently where an accused's conduct may be equally explained by reference to consciousness of guilt of two or more offences, and where an accused has admitted culpability in respect of one or more of these offences, a trial judge should instruct a jury that such evidence has no probative value with respect to any particular offence.
Those principles can be applied to the facts of this appeal. The trial judge simply told the jury that people often flee the scene of a crime even if they are entirely innocent. Having said what she did upon this matter, she should also have told the jury that because the appellant's flight was equally consistent with both common assault and aggravated assault, it could not be evidence of guilt of the latter. Any inference to be drawn from flight disappears when an explanation for such flight is available, as it is here.
The jury should have been warned against drawing any inference from the fact of flight. The trial judge's direction that even innocent people sometimes flee the scene of a crime was insufficient in light of the fact that the appellant admitted that he had committed common assault by punching Heffern and, thus, had reason to flee. The issue was not whether the appellant fled because he was guilty or because he panicked despite being innocent. Rather, the issue was whether the appellant's flight indicated a consciousness of guilt arising from the fact that he had stabbed Heffern or rather from the fact that he had punched Heffern. And on that question, the evidence could have no probative value."
49 In Mr Strickland's submission the reasoning in Arcangioli is consistent with that of the High Court in Edwards v The Queen (1993) 178 CLR 193. He also has directed our attention to the judgment of White J in The Queen v Bridgman (1980) 24 SASR 278.
50 In Bridgman the Crown proposed leading evidence that the accused absconded from bail as an admission by conduct. On a voir dire hearing it emerged that as at the date of the offence charged the accused was on parole. He had a substantial reason for absconding in that if convicted of the subject offence his parole would be revoked and he would have been serving the balance of a lengthy sentence of imprisonment. White J excluded the evidence observing:
"Likewise, in the present case before me, evidence of flight was not placed before the jury once an additional substantial reason for flight was disclosed in circumstances which made the fact of flight ambiguous and the task of explaining the ambiguity onerous and prejudicial" (at 282).
51 Bridgman was discussed by Doyle CJ (in a judgment with which Millhouse and Williams JJ agreed) in Power. In that case the Crown led evidence that police attended at the appellant's address on 26 June 1993 informing him that they were investigating a series of bank hold-ups which he was suspected of having committed. The following morning the police attended premises at which the appellant's brother was residing. The appellant was present at those premises. Again, the police conveyed they were investigating bank hold-ups and that they believed both the appellant and his brother to be involved in their commission. On 1 July 1993 both brothers left Australia and travelled to the United Kingdom. They remained in that country for some time. Evidence was relied upon by the Crown to establish that while in the United Kingdom the appellants used false names and disclosed a close interest in the activities of the police in South Australia.
52 In Power the appellants explained their departure from Australia by saying that they had panicked when told that they were under suspicion in connection with the armed robberies. Doyle CJ observed:
"In my opinion, the evidence was admissible. Taken as a whole it was evidence upon which the jury might conclude that the conduct of the appellants manifested a consciousness of guilt. There is adequate authority to support the view that evidence of flight (and I use this term compendiously to describe the whole of the evidence, because in my opinion it is all interrelated) is admissible as showing a consciousness of guilt: see eg, Melrose [1989] 1 Qd R 572. It will not be often in such cases that the evidence is unequivocally indicative of guilt. There may, I suppose, be cases in which the evidence is intractably neutral, but I fail to see how the evidence in this case can be so regarded. Of course, the explanation advanced by the appellant's was not a ludicrous or obviously false one, but to my mind that does not render the evidence incapable of supplying proof or evidence of guilt. If it did, then much circumstantial evidence which is routinely admitted would be rejected. In my opinion, the ruling by White J, reported in Bridgman (1980) 24 SASR 278, is not to be taken as meaning that evidence of flight is inadmissible simply because a credible explanation is advanced. In my opinion the approach to be taken is that indicated by Shepherdson J in Melrose (at 579) (assuming that the evidence is not intractably neutral:
'I would however say that in my opinion, when there is evidence of flight before a jury whether there be one or more than one reason advanced for that flight, the jury should be told that it is for them to decide on the whole of the evidence relevant to the charge in which evidence of flight has been admitted what inference is to be drawn from the accused persons flight but if at the end of the day they decide to infer a consciousness of guilt in the accused person for the offence alleged, they must be satisfied beyond reasonable doubt of such an inference.'
In my opinion, the judge rightly admitted the evidence for the purpose identified by the prosecution" (At 409).
53 In the course of oral argument Mr Strickland drew our attention to a passage in the judgment of Deane, Dawson & Gaudron JJ in Edwards as supportive of the reasoning which found favour with the Court in Arcangioli:
"Furthermore, the reluctance of the appellant to recall any more than he was compelled to do in cross-examination occurred in a situation in which the appellant had been in custody and did not wish to inculpate others who were in custody with him - to be a "dog" in prison terminology. That was not questioned by the prosecution as a motive for withholding the truth, indeed the prosecution suggested it. 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." (At 212).
54 Mr Strickland accepted that in the above passage their Honours might not be thought to have embraced a proposition as wide as that set out in Arcangioli. It was not his submission that in every case in which there are competing explanations flight ought not to be left as capable of evidencing consciousness of guilt. Such a proposition would be contrary to authority; Regina v Adam (1999) 106 A Crim R 510 at 522; Power; Melrose [1989] 1 Qd R 512.
55 In Mr Strickland's submission this was a case in which the competing explanation offered by the appellant for his flight was of such inherent plausibility that it was not reasonable to leave flight as probative of guilt. There was no issue about the fact that the appellant was present at the scene in company with his brother and the man Den at the time Mrs Yin was robbed. It was his account that he had been a party to a joint criminal enterprise, namely to assault Mr Lo. On his own account he was aware that agreeing to "bash up" Mr Lo, on behalf of Den, exposed him to criminal liability. He had run from the scene when Mrs Yin was yelling out and he was arrested shortly thereafter. The real issue in this case was whether the Crown could negative beyond reasonable doubt that the appellant's presence at the scene was as a person recruited to assault Mr Lo. In Mr Strickland's submission the evidence of flight in these circumstances was intractably neutral, to adopt the language of Doyle CJ in Power.
56 The appellant did not give evidence at the trial. It is necessary to turn to the contents of the ERISP in order to evaluate the challenge advanced on this ground:
"Then the lady, the other one that the, the, the guy asked me to come, he, I don't know what they're doing but the lady, you know, she make a yell, you know, just a big noise yell so, then he asked me to run away. So I ran, but I, I don't know what happened, you know, and I don't know he's a robber or what, I don't know because he asked me, he only asked me to come for assault that man, you know so that's all I want, I want to say in here" (A 6).
…
Q. 50 Do you agree that you were arrested in a, an abandoned property, in a vacant block of land …
A. Yeah.
Q. 51 … In Vales Lane, between Vales Lane and Queen Street at Auburn?
A. Yes.
…
Q. 54 … Do you agree that when you were arrested you were with your brother?
A. Yeah.
Q. 55 What's his name?
A. Quoc Phu Ho.
…
Q. 57 Right. Can you tell me the circumstances of you being arrested in the paddock there?
A. Sorry?
Q. 58 Can, can you tell me how you got arrested?
A. When she, because when she yelled out and I was so frightened that's why I ran away and hide myself there. By that time my friends already went out, so she thought that we'd, we'd rob her, that's why, and I hid myself there until the police came with the dog.
…
A 79 Yeah. He saw me, that man at the shop, you know, and he asked me to come and asked that lady, when I come in, and that lady make a yell so, and, and her husband or you know the, the man come out, you know, so I, I come and talk to him. So I don't know what happened when, at my bat, you know, and then the, the, the guy, the guy come with me, he asked me to run, so I tried to run away.
Q. 80 Oh, right.
A. You know, I jump in the park and hide there because, you know, some, a lot of people look at us, you know, so I'm scared that she thought armed robbery or something, but I don't know what happened. I only know when, you know, the cop come and when they arrest me and they come and ask me where's the money and I, I talk to them, where's the money? I don't know where's money, you know, because I don't know what happened.
…
Q. 139 He got the pistol.
A. But you know …
Q. 140 So you're indicating a pistol?
A. Yeah, but yeah but he come do like this but it's not shooting.
Q. 141 Right.
A. Yeah. I think it's a toy, you know.
Q. 142 Right.
A. Yeah. And after that he walked back to a lady and maybe at, at the time he, he get the, her bag and run away.
…
Q. 146 OK what happened then? Are you still with the man at that stage? You and your brother still with the man?
A. Because he, he run first, you know.
Q. 147 Yeah.
A. So we don't know, we, he, when he run he asked me to run. He said, hey, run, then I'm, I'm going to run away with my brother at the back and when we go out on the, you know, the road, I didn't see him either.
Q. 148 You didn't see him?
A. Yeah.
Q. 149 What, you lost sight of …
A. Yeah, I lost …
Q. 149 Of Den?
A. … I lost him on the road, you know, so I'm jump in the park and I stay in there.
Q. 150 OK then, did you see the, the man and the lady run after you?
A. Oh, no, not really.
Q. 151 No.
A. No, because when we run …
Q. 152 Did you hear someone yelling and screaming behind you?
A. Yeah, yeah, yeah.
…
Q. 194 But it's not the right thing to do, you agree with that?
A. Yes.
Q. 195 To bash the man?
A. Yeah. That's why when she make a yell I run away.
Q. 196 Yeah.
…
Q. 349 But then you run off after him.
A. When he take it and he run already he asked me to run.
Q. 350 He asked you?
A. Yeah.
Q. 351 So you …
A. He said, run run run.
Q. 351 … seeing him with the bag?
A. Sorry."
57 In the light of that material I consider it was open to the trial judge to leave consideration of the appellant's flight from the scene as capable of amounting to evidence of consciousness of guilt of the offence charged notwithstanding those answers in the ERISP which raised an alternative explanation.
58 Mr Strickland also challenged the adequacy of the directions given on this topic. It was submitted that his Honour was required to direct the jury that in the event the event that they were not able to exclude the appellant's answers at Q 194 and 195 as providing a reasonably possible explanation for his flight they should put the evidence of flight to one side as being not capable of supporting a finding of guilt. Allied to this aspect of the challenge was the submission that his Honour erred in observing: "the accused ran away because Den told him to do so" at the commencement of the directions on flight. It was contended that this was not a complete account of the appellant's statements of his reasons for flight and, to that extent, it was misleading. The matter was compounded by the fact that trial counsel sought a re-direction inviting the jury's attention to the alternative explanation for flight in answers at Q 193 to 195 inclusive. His Honour declined to remind the jury of this material or to supplement his directions on flight.
59 In the course of his directions on this topic his Honour commenced by directing the jury:
"The direction of law I give you is that if you are satisfied beyond reasonable doubt that the accused fled the scene of the alleged assault and alleged robbery you may draw an inference against him that he acted in that way because he believed that he was a knowing and willing participant in either or both of the two alleged offences. But before you can draw that inference you must be satisfied beyond reasonable doubt that there is no other reasonable explanation for the fleeing and hiding, in all of the circumstances." (SU23).
60 His Honour went on to direct the jury additionally that it was necessary for the Crown to satisfy them that what was in the appellant's mind was consciousness of guilt of the offence charged. Immediately following this latter direction his Honour reminded the jury of the appellant's account in the interview that he had gone to the meat market in order to "bash up" Mr Lo and not because of any agreement to rob Mrs Yin. His Honour observed "that is different from what the accused has been charged with". As I read the directions on flight they include the concluding paragraph extracted at [44] above in which attention is directed both to the appellant's alternative explanation for his flight and he was there admitting guilt of an offence other than that with which he was charged.
61 Mr Strickland drew attention to counsel's request for re-directions. While he accepts that upon one construction of his Honour's remarks the jury were adequately directed as to the significance of the appellant's alternative explanation for his flight, the fact remains that in the atmosphere of the trial, experienced counsel considered the directions to be deficient.
62 The Crown conceded that it was unfortunate that the trial judge did not accede to counsel's request for the further directions sought on this topic. That is a fair concession.
63 The Crown points to the directions on flight as a whole and submits that any deficiency is overcome by the circumstance that his Honour gave a direction which was unduly favourable to the appellant in that it required the jury to be satisfied beyond reasonable doubt that the appellant's flight was the product of his consciousness of guilt of the offences charged before it might be relied upon. The Crown points in this respect to the observations of this Court in Regina v Adam [1999] NSWCCA 189 at paras [54] - [57]:
"[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."
64 I consider that read in context his Honour's directions on flight were adequate and in certain respects favourable to the appellant.
65 I would reject the second ground.
66 MEAGHER JA: I agree.
67 HIDDEN J: I also agree. It may perhaps have been unfortunate that his Honour peremptorily rejected trial counsel's application for redirections on the question of flight. If he had been minded to clarify them this appeal would have been unnecessary. However, I agree with Bell J that, read as a whole, those directions were adequate in the circumstances and I agree that the appeal should be dismissed.
68 MEAGHER JA: The order of the Court therefore is the appeal be dismissed