Supreme Court of NSW|1998-04-09|Before: Wood CJ, Smart J, Sperling J

The application for leave to appeal against sentence was abandoned at the start of the hearing in this Court. That application should be refused.

SPERLING J: I have had the advantage of reading in draft the judgment of Smart J in this appeal. I respectfully agree with the orders he proposes and, substantially, I agree with his reasons.

As to the first ground of appeal, the appellant having raised duress, it was a question for the jury whether the appellant acted voluntarily in what he did. That was the issue in the case.

The appellant said he was forced against his will to swallow capsules of heroin at gun point and in response to threats made against his family. The case turned on whether there was a reasonable possibility that the appellant was telling the truth about the course of events as he told it. If there was that reasonable possibility, the appellant was to be acquitted. If not, he was to be convicted. There was no other issue. In particular, no serious question arose in this case as to whether the threats as alleged would be likely to induce a person of ordinary firmness of character to yield to the threats by committing the crime . Plainly, they would.

I do not agree, with respect, that the summing-up read as a whole, was a correct statement of the legal principles as laid down in Abousafiah (1991) 24 NSWLR 531. It departed in a number of respects from the standard directions concerning duress. Much of it, including the lengthy passage at SU 20A-23 would, in my view, have been incomprehensible to a jury. However, in my view, it would have been clear to the jury from the summing-up that - whatever else the trial judge said - the appellant had to be acquitted if, in their view, there was a reasonable possibility that the appellant's story was true. The trial judge made that clear. I do not think anything else said by the trial judge might have detracted from that.

Accordingly, there was no miscarriage of justice arising from deficiencies in the summing-up in relation to duress and the appeal, insofar as it depends on this ground of appeal, should be dismissed under the proviso to s 6 of the Criminal Appeal Act 1912.

As to the second ground of appeal (lies), I agree, with respect, with what Smart J has written. The Crown was entitled to rely on the appellant having given inconsistent versions of what had occurred. If the versions were truly inconsistent, they could not all be true, which meant that one or more of them had to be a false account of events. The Crown was entitled to rely on such assertedly false accounts, not only as detracting from the reliability of the account relied upon at the trial, but also as evidence of a consciousness of guilt. What that amounted to in the present case would be a consciousness on the part of the appellant that he had acted voluntarily, ie. that his story about duress was false.

This was, however, very much a subsidiary approach to the main issue, that is, whether there was a reasonable possibility that the account of events relied upon by the appellant at the trial might be true.

The Crown's assertion that some aspects of the appellant's various accounts must have been false because they were inconsistent and the possible implication of consciousness of guilt, was not by any means the only evidence against the appellant, nor was it an indispensable link in the chain of evidence necessary to prove guilt. That being so, the direction given as to lies was not deficient in the circumstances of the present case.

I have nothing to add to what Smart J has written in relation to Grounds 3 and 4.

Regina v El-Saleh Matter No Cca 60013/97 [1998] NSWSC 94 (9 April 1998)

- As the lies said to constitute an admission of guilt were not the only evidence against the accused or an indispensable link in a chain of evidence necessary to prove his guilt the rule in R v Edwards [1993] HCA 63; (1993) 178 CLR 193 did not apply.

Regina v El-Saleh Matter No Cca 60013/97 [1998] NSWSC 94

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Regina v El-Saleh Matter No Cca 60013/97 [1998] NSWSC 94 (9 April 1998)