Grounds of Appeal against Conviction 1 and 2
49 It was submitted by counsel for the appellant that the telling of lies by the appellant had played a prominent part in the appellant's trial.
50 It was submitted that the Crown had been in the unusual position of having in its possession previous out of court versions by the appellant of what had happened on the night of 31 August-1 September 2003 which the appellant had given to the solicitor or barrister then acting for her and at the trial the appellant had been cross-examined by the Crown prosecutor on inconsistencies between these versions and the evidence she had given in her evidence in chief. It had been put to the appellant by the Crown prosecutor at the trial that some things the appellant had said in her evidence in chief were lies and that her explanation of why she had made certain assertions in her statement of 17 May 2004, which were inconsistent with her evidence and which she now said were untrue, namely that she had been told to make the assertions by Mr Abbott, was itself a lie.
51 It was then submitted by counsel for the appellant that the Crown prosecutor in his closing address to the jury had sought to rely on the telling of lies by the appellant as evidence of consciousness of guilt.
52 It was contended that any lies the appellant had told did not satisfy all of the conditions for a lie being capable of amounting to evidence of consciousness of guilt and the Crown prosecutor should not have sought to rely on the telling of lies by the appellant as evidence of consciousness of guilt. Furthermore, the trial judge in his summing-up had not given the jury directions of the kind required when lies are relied on by the Crown as being evidence of consciousness of guilt Edwards v The Queen (1993) 178 CLR 193.
53 Alternatively, the trial judge had not given the jury a direction of the kind suggested in the joint judgment of Gleeson CJ, Gaudron, Gummow and Callinan JJ in Zoneff v The Queen (2000) 200 CLR 234 at 245, to the effect that where lies are not relied on as evidence of consciousness of guilt, the jury should be directed that they should not reason that, just because the accused has been shown to have told a lie, that is evidence of his or her guilt.
54 It is clear that the trial judge in his summing-up did not give the jury any directions in accordance with Edwards or any directions in accordance with Zoneff. However, a critical question is whether, as was submitted by counsel for the appellant, the Crown prosecutor in his closing address to the jury did seek to rely on the telling of lies by the appellant as evidence of consciousness of guilt.
55 Counsel for the appellant pointed to five passages in the Crown prosecutor's closing address, which were as follows:-
"(1) I want to come briefly to the accused's evidence. One thing that you can't do in this trial is say look at Wormleaton, look at Hampstead on one side, put them on that side and then put the accused on this side and say which do I prefer, you cannot do it. It's the Crown case that must be proved beyond reasonable doubt and I as the Crown must prove it and I do that, I attempt to do that with my witnesses but having said that what you can do is this. You can look at Ms Rend because she went into the witness box and she faced cross-examination for an hour or so. You can look at her evidence and you assess it, she is a witness like every other witness when she goes into that witness box. You assess her evidence as you assess all the other witnesses, Hampstead, Wormleaton, … all of them. So look at her evidence and you form a view as to whether she was a witness of truth but even then, even if you don't think she's a witness of truth that still isn't the end of it for you, you still can't say well I'm satisfied beyond reasonable doubt, you still have to look back at the Crown evidence, always remember that, his Honour will tell you that and I think Mr Gilson will tell you that. But when you look at the Crown evidence you can take into account in your deliberations what the accused has said to you. You've heard this morning, you've heard the evidence this morning, you'll remember the inconsistencies."
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"(2) Well gee isn't that consistent with what's in this document, the document that's before you, exhibit S, isn't that consistent with that but no Ms Rend wants to stay away from it, no, no that never happened, I only found out about this at the end because it's important. It's important for her defence that she only knew about it at the end, not at any time before. So she distanced herself from it".
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"(3) Well you saw and heard Ms Rend this morning and you saw her give her answers. Was she trying to tell the truth, was she a witness of truth, something you've got to take into account when you're looking at the Crown case".
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"(4) What does she say about that? 'Mr Abbott told me to say it', Mr Abbott, criminal solicitor of twenty years told her to tell lies, matter for yourself. Because you see you can understand, can't you why Ms Rend would want to distance herself from the driving".
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"(5) But she drove, if you accept Hampstead. So if you accept that, she knew what was going on because she could drive, she was capable of driving, she was capable of agreeing to commit the crime of robbery. Why is she distancing herself from this driving, for that very reason because if she's found to be the driver you might take the view that she's part of the agreement".
56 In my opinion, the first and third passages lend no support to counsel for the appellant's submissions.
57 In the first passage the Crown prosecutor told the jury that the Crown bore the onus of proof, that the jury would have to assess the appellant's evidence, that even if they did not think that the appellant was a truthful witness the jury would have to determine whether they accepted the Crown evidence but in determining whether they accepted the Crown evidence the jury could take into account inconsistencies in the appellant's accounts of what had happened.
58 In the third passage the Crown prosecutor merely reminded the jury that, when determining whether the evidence adduced in the Crown case established the Crown case, they should consider whether the appellant in her evidence was a truthful witness.
59 In my opinion, the critical question to be determined is whether, in the second, fourth and fifth passages which I have quoted, the Crown prosecutor by submitting that the appellant in her evidence had "distanced herself" from knowing about the robbery at or about the time that it happened and had "distanced herself" from being the driver of the vehicle, because if she had been the driver of the vehicle that might show that she was a party to an agreement to rob Mr Hampstead, had sought to rely on the telling of lies by the appellant as evidence of consciousness of guilt.
60 In determining this question I have taken into account the whole of the Crown prosecutor's address. The conclusion I have reached is that, when the Crown prosecutor's address is considered as a whole, the Crown prosecutor should not be regarded as having intended and would not have been understood by the jury as intending, to rely on the telling of lies by the appellant as evidence of consciousness of guilt.
61 A continually recurring theme in the Crown prosecutor's address was that the jury should find that the appellant had no credibility and her evidence should be rejected. It seems to me that in submitting to the jury that the appellant had "distanced herself" from knowing about the robbery at or about the time it happened and from having been the driver of the vehicle, the Crown prosecutor was doing no more than submitting that her evidence on these matters should not be accepted and suggesting a reason for her having told an untruth, as increasing the likelihood that her evidence was indeed untrue.
62 The expression "distancing herself" was, perhaps, an expression which the Crown prosecutor would better have avoided. It was, however, an expression the Crown prosecutor used freely in the summing-up and not merely in relation to the appellant. For example, the Crown prosecutor said of some evidence given by Wormleaton which the Crown prosecutor submitted the jury should not accept, that Wormleaton in giving the evidence had "distanced himself" from the truth.
63 My view that the Crown prosecutor should not be regarded as having sought to rely on lies as consciousness of guilt is strengthened by the circumstance that it apparently did not occur to either counsel for the appellant at the trial or the trial judge that the Crown prosecutor was seeking to rely on lies as consciousness of guilt.
64 The appellant was competently represented by her trial counsel. The appellant's trial counsel made some, unrelated, applications to the trial judge for further directions after the trial judge had concluded the principal part of his summing-up but did not raise any objection to the Crown prosecutor's address or make any application for a direction on lies. This Court received an affidavit from trial counsel in which counsel said that he had little recollection of the matter but had not made any conscious forensic decision not to apply for directions about lies.
65 In his summing-up the trial judge said nothing which could have suggested to the jury that it was part of the Crown case that the appellant had told lies in consciousness of guilt. In his summing-up the trial judge told the jury that the Crown relied on the appellant's statement of 17 May 2004 only to a limited extent, that is only as containing an admission that she was the driver of the vehicle, which would confirm Mr Wormleaton's evidence and Mr Hampstead's evidence on that subject.
66 As the Crown prosecutor did not seek to rely on lies as evidence of consciousness of guilt, the trial judge was not required to give and, indeed, should not have given, directions in accordance with Edwards.
67 The trial judge did not give any Zoneff direction. However, none was asked for and it would appear that no one at the trial thought that a Zoneff direction was needed.
68 It is apparent from the joint judgment in the High Court in Zoneff that it is not mandatory to give a Zoneff direction in every case where it has been suggested that the accused has told lies. The joint judgment speaks of a direction "which might appropriately have been given". It is a "direction which may well be adaptable" in cases where there is a risk of misunderstanding about the significance of possible lies.
69 In R v Douglas [2005] NSWCCA 419 this Court referred with approval to what was said by Hunt CJ at CL, with the concurrence of the other members of the Court, in R v Tangye (1997) 92 A Crim R 545:-
"In my view, even in cases where the lie is relied upon by the Crown only in relation to the credit of the accused, it is best for the judge to direct the jury that they should not find him guilty simply because he has told a lie, but it is not an error where that has not been done, and it is even less meritorious as an appeal point when the trial judge (as here) has not been requested to do so".
70 I would reject the first and second grounds of appeal.