GROUND 3 - DIRECTIONS BY THE TRIAL JUDGE ABOUT LIES TOLD BY THE APPELLANT AND AN ASSOCIATED REFUSAL TO DISCHARGE THE JURY
13 The appellant gave evidence at trial. He admitted that he had told two lies when interviewed by police, they being that he did not pick up the box (later found to contain computer equipment) and that he had tripped over it. In his charge to the jury, the learned trial judge correctly identified these lies but directed them that telling police that he had tripped over the box was not of any material significance to the offence charged and that they should not concern themselves with it.
14 The explanation by the appellant for lying to the police about touching the box was that he thought, if police had information that he touched the box, he might be charged with something he had not done.
15 The submission is that the trial miscarried as a result of the basis upon which the question of the appellant's lies had been put to the jury and, second, that the appellant lied because "he was caught red-handed and he knew that" was put to the jury for the first time by the judge after the evidence and addresses were concluded.
16 The transcript shows that there was considerable exchange between the bench and bar on the subject of directions about lies before the jury was charged. Discussion revolved around direction in accordance with Edwards v The Queen 1997 178 CLR 193 and in accordance with that suggested in Zoneff v The Queen 2000 200 CLR 234.
17 In the event, his Honour gave an Edwards direction. It was not suggested that what the jury were told did not comply with that authority, however after the jury retired and while debate was continuing about aspects of his Honour's charge, a note was received from them asking for repetition of directions concerning lies. The second part of the appellant's argument relates to the response to this note.
18 The learned trial judge did raise the question of proposed direction and did ask counsel for the appellant whether he wanted the Edwards direction or not, but the enquiry followed some expressed inconclusiveness about what his Honour thought had been argued to the jury. The transcript shows that the Crown argument to the jury relied upon the lies told by the appellant as evidence of his guilt. Among other things the Crown Prosecutor said:
"……. He told lies to the police that evening because he wanted to put his best foot forward so as not to incriminate himself any further ……."
19 Criticism of the basis of his Honour's response to application to discharge the jury when he said "….. if the choice is between discharge and Edwards direction I will give the Edwards direction" becomes irrelevant when it is concluded that there was no error in electing to give the particular direction.
20 In further directing the jury after receiving the note, his Honour said in summarizing the prosecution contention:
"….. the Crown says, well, the situation was that he was caught red-handed taking the computer equipment away in the box and he knew that and that is why he told the lie."
21 It is argued that the Crown made no such submission. Those words do not appear recorded but what was said is not an unfair summary of the Crown case on the issue. The passage earlier set out is to that effect and although "red-handed" may not appear in it, it is noteworthy that there was evidence from the appellant via his police interview that his mother had told him that one police officer had said he was "caught" with a box in his hand.
22 The final submission on this ground is that the trial miscarried as a result of the confusion which arose over the basis upon which the question of the appellant's lies should be put to the jury. As mentioned in a written submission, counsel addressed as to what his Honour should say about lies at some length and a number of options were canvassed. However, the issue is whether the jury were, in the event, given wrong or confusing directions. In my view they were not. Ground 3 should be rejected.