Ground 7 - failure to adequately direct jury concerning use to which certain material might be put
80 This concerns the use to be made by the jury of Exs GGG3 and 4, being particular tapes of listening devices known as DAT 3 and 4.
81 The Crown had alleged that the recordings revealed conniving or coaching by Galea to mislead the police and the jury.
82 The Crown cross-examined Galea on the issue of coaching, suggesting in effect that he and Yeo had put their heads together, and that there was conniving and cramming for the purpose of giving a dishonest account to the jury. It was never very clear on what basis the cross-examination proceeded and what use might be made of the material. If it was to go to the credibility of Mr Galea, as is now submitted by the Crown in its written submissions, then Mr Game submits that the jury should have been so directed.
83 If on the other hand, it was relied on as evidence of consciousness of guilt, then the jury should have been given appropriate directions. No direction was given to the jury on either of these bases but his Honour did direct the jury as follows:
… I don't propose to repeat the Crown's submissions to you about what he described as coaching and about what he described as, in effect, pretences for the benefit of those known or suspected to be listening. By the same token, I remind you that the accused bear no onus of proving anything in this trial, and it was submitted to you on their behalf that you will find from the material captured in the listening device tapes that not only is there nothing to inculpate either of them, but in fact it is demonstrative of their innocence. The Crown invites you to look at this material and says it is available to you as part of all the circumstances which, it claims, when added together will bring you to a finding that there is no reasonable conclusion available from the evidence other than the guilt of each accused.
84 However, as mentioned earlier, the Crown address was not recorded and therefore we do not know with any precision what the Crown put to the jury. Was it said that there was a pretence about the listening device because of a consciousness of guilt (not contended for by the Crown on appeal) or was it confined to lies, or even credibility? Judging by what his Honour said in the summing-up, set forth above, it does not seem to be have been on the basis of credit. In either event, lies or consciousness of guilt, the question arises as to whether his Honour should have given a direction in accordance with Edwards v The Queen (1993) 178 CLR 193.
85 In the majority judgment of Deane, Dawson and Gaudron JJ it was said at 211:
… 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 lied would implicate him in the offence, or, as was said in Reg. v. Lucas ( Ruth ) [1981] QB 720, because of "a realization of guilt and a fear of the truth".
Moreover, the jury should be instructed that there may be reasons for the telling of a lie apart from the realization of guilt. A lie may be told out of panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the offence. The jury should be told that, if they accept that a reason of that kind is the explanation for the lie, they cannot regard it as an admission. It should be recognized that there is a risk that, if the jury are invited to consider a lie told by an accused, they will reason that he lied simply because he is guilty unless they are appropriately instructed with respect to these matters.
86 In my view, since the Crown had identified the 'coaching' and 'pretence' as a plank in its case against Galea, the jury was required to be properly instructed in terms of Edwards. They were not so instructed.
87 If, on the other hand, the basis was confined to credibility, which is by no means clear given what his Honour said in the summing-up referred to earlier, then consideration must be given to Zoneff v The Queen (2000) 200 CLR 234. This is yet another High Court authority which post-dated the trial, the reasons for judgment being published on 25 May 2000.
88 In Zoneff an Edwards direction had been given. The majority judgment of Gleeson CJ, Gaudron, Gummow and Callinan JJ held that since the Crown did not put to the jury that there was any material capable of being regarded as a lie stemming from a consciousness of guilt, the direction should not have been given. (para 21)
89 Their Honours continued:
22 The trial judge was evidently concerned that, having regard to some of the cross-examination, there was a serious risk that the jury might engage in an impermissible process of reasoning in relation to the matter of lies. Unfortunately, his response was to give a direction which, as Olsson J observed, raised the topic and then left it largely up in the air.
23 A direction which might have appropriately been given and which would have allayed any concerns which the trial judge may have had, in this unusual case, in which the issues may not have been defined as they might have been had the prosecutor made a speech to the jury, is one in these terms:
"You have heard a lot of questions, which attribute lies to the accused. You will make up your own mind about whether he was telling lies and if he was, whether he was doing so deliberately. It is for you to decide what significance those suggested lies have in relation to the issues in the case but I give you this warning: do not follow a process of reasoning to the effect that just because a person is shown to have told a lie about something, that is evidence of guilt".
24 A direction in such terms may well be adaptable to other cases in which there is a risk of a misunderstanding about the significance of possible lies even though the prosecution has not suggested that the accused told certain lies because he or she knew the truth would implicate him or her in the commission of the offence.
90 No such direction as envisaged by para 23 in Zoneff was given by the learned trial judge. This ground of appeal should, in my opinion, be upheld.
91 The success of these grounds in combination, or ground 1 by itself, must lead to a retrial. Accordingly, the conviction of the appellant Galea on the charge of accessory after the fact to murder should be quashed and a new trial ordered.
92 WOOD CJ at CL: I have had the advantage of reading in draft the reasons for judgment of Stein JA. I agree with his reasons and the orders he proposes.
93 STUDDERT J: I agree with Stein JA.