RR v R

Wong v R [2001] HCA 64; (2001) 207 CLR 584 Category: Principal judgment Parties: RR - Appellant Regina - Respondent Crown Representation: Counsel A Francis - Appellant J Pickering - Respondent Crown Solicitors Legal Aid Commission - Appellant Solicitor for Public Prosecutions - Respondent Crown File Number(s): CCA 2008/11347 Decision under appeal Before: Hock DCJ File Number(s): CCA 2008/11347

The evidence at the trial 6Having regard to the nature of the grounds of appeal it is necessary, in my view, to consider the evidence placed before the Court at the trial, the closing by each of counsel for the Crown and the appellant, and the directions given by her Honour to the jury. 7Primary reliance was placed by the Crown on the evidence of the complainant MW. In fact, she did not give evidence at the trial but rather a DVD of her evidence at a previous aborted trial for the same offence was played before the jury. 8The evidence given by MW in chief primarily consisted of verifying a record of interview which took place between her and a Detective Senior Constable Aitken on the evening of 22 March 2008, the day the incident in question occurred. 9During the course of the interview MW said she was playing hide-and-go-seek with the appellant's seven year old son, LR, at the rear of the appellant's premises. She said she went to hide in the shed, which she described as a room with a microwave, air-conditioner, PlayStation, TV, blanket, lounges, tools and clothes. She said the appellant was in the shed, that he was wearing bluey black pants and a shirt, and that "there was a hole in his pants too when he did it ... where his rude part was" (interview Q 144 - Q 148). She said he was standing in front of her and she was also standing (Q 230). She stated that he covered her mouth with his hand so she could not say anything, put a red blanket taken from the lounge over her head, told her to open her mouth wide and then put his "rude part" or "doodle" in her mouth (Q 90 - Q 230). In the interview, she said she knew that "dick" was another word for "the rude part" or "doodle" (Q 159), and circled where his "rude part" was on a diagram of a boy given to her by the police officer (this diagram was in evidence before the jury). She said that she had said no to the appellant but he just yelled at her and she had to do it (Q 175). She said that he moved it back and forward in her mouth for a little while (Q 179 - Q 181), and had his hands on top of her head "tight ... Just holding it down" (Q 235 - Q 237). She said that "nothing came out of his doodle before he stopped" (Q 201). When he stopped she asked if she could watch a movie with LR inside (Q 189) and he said yes (Q 202). She stated he said "Don't tell our secret", "don't tell anybody" (Q 137, Q 203). MW said she felt terrified "Cause he did it"(Q 209 - Q 210). She said when she went with LR to watch the movie she then said "can I go to mum first and then [LR] said yes" (Q 202). She said she then went home and told her mother what had happened (Q 139 - Q 140). 10During the course of the interview the following exchange occurred: "Q78 OK. So, can we make an agreement today to only tell the truth, to only tell what actually happened? A About [the appellant]? Q79 Yep, yep. Just tell, tell the truth. Can we make an agreement to do that? A He forced my head, pushed my head down, made me suck it. Q80 OK. A That's the real truth. Q81 OK. A I ... the words, ... mum ... going ... ..., say 'em. Q82 Yep. OK. A I said, I know the words mum." MW's mother, LW, was not in the room at the time of interview. Defence counsel relied upon this exchange, particularly the words "I know the words mum", in closing to suggest that LW had coached or otherwise influenced MW's evidence. 11In cross-examination she was asked if she had practiced what to say with her mother or anyone else before going to see the policeman: "Q: And before you went to see the policeman that night did you practice what you were going to say to the policeman? A: No. Q: Did you practice with mum or anyone else? A: No." 12In cross-examination it was suggested to her that she was playing with LR at the front of the appellant's house but she maintained she was playing at the back. She agreed that she often played hide-and-seek with LR, sometimes outside, sometimes in LR's house and sometimes in the shed. She agreed that on the day in question she was playing dirt castles with LR and got dirty hands and dirty clothes and that the appellant told her and LR to go inside and wash their hands because the rain was getting heavy. She agreed that thereafter she went inside to watch a DVD, but the power and lights were off for a time and then the lights subsequently came back on. She agreed that after the DVD started she said to LR she wanted to go home to see her mother. 13Subsequently in her cross-examination she stated that she played hide-and-seek before she and LR washed their hands. She rejected the suggestion that the hide-and-seek game could have taken place on another day. She also stated that she was sure that the blanket she saw in the shed was a red one, not a blue one. 14MW was then asked whether she recalled an incident which occurred on another day. She agreed she remembered playing hide-and-seek and on that day she was sitting on the appellant's lap under a red blanket. She said that she was not sure whether the blanket in question on that day might have been blue not red. She again, however, asserted that she was sure she was playing hide-and-seek on the day in question. At the conclusion of her cross-examination the following exchange occurred: "Q: [MW], nothing bad happened on this day, did it? A: I'm not sure. Q: Well you've told use that [RR] made you suck his doodle? A: Yeah. Q: And you're only a little girl and I don't want to get you confused. Do you remember telling the police that? A: Yeah. Q: [RR] really didn't do that, did he? A: I didn't hear you. A: [RR] didn't really do that, did he? A: I'm not sure." 15However, in re-examination she was asked the following question without objection: "Q: Now at the end of my friend's question of you, he asked you - he said to you 'You told the police that [RR] sucked your doodle - [RR] made you suck his doodle' and you said yes. And then he put to you that he didn't really do that and you said you weren't sure. Now what did you mean by that? Are you saying to the jury that you aren't sure whether [RR] made you suck his doodle that day? A: He did." 16The appellant's mother LW gave evidence. She said that she and her family including MW lived across the road from the appellant and that on the day in question she gave MW permission to go to the appellant's premises and play with LR. 17She said she was away from her house for about 15 minutes and she saw MW about 2 1/2 minutes after she returned. She stated that MW appeared to be white, scared, crying and angry and that she told her that "[RR] made me suck his cock". She said MW told her that: "she was playing hide-e-go-seek with [LR] and [LR] was counting and that she had asked [RR] where to hide and [RR] said 'You can hide here in the shed' ... She said that he had made her, he yelled at her for her to suck his dick and then she continued saying how he was making her, he was going back and forth motion. She told me that she didn't like it and I told her that what he had done wasn't right and that we would talk to the police about it and get something done about it. ... She told me that [RR] was standing in front of her, he told her to hide in the shed and to sit down on the lounge or chair that he had in the shed he threw a blanket over the top of her head, and then he did the back and forth motion and nearly made her feel sick ... I'd asked her where [LR] was at the time and she said she didn't know, that she'd just come straight home to tell me." 18She stated that she went to the appellant's home and that the appellant was standing in the doorway saying, "I didn't do it. I didn't do it" or "I didn't know nothing about it". She claimed she said "That's not what my daughter's saying to me at the moment. She's come home in a hysteric mess and she's confused and upset and she's just told me that this is what you made her do". She said that the appellant said MW had walked into the toilet while he was having a pee. 19After this occurred she rang the police and told them her daughter had been sexually assaulted. 20LW was then permitted to refresh her recollection from a statement she made on the date of the incident. She said having read that statement that MW said that the appellant was yelling at her while he was in the process of doing it to open her mouth wider and that he told her to keep it a secret. 21LW was cross-examined extensively about the terms of the conversation that she had with the appellant. She agreed that as she approached him she said "You, you bastard" and that the appellant said, "What have I done". She stated that when MW came to her house she used the word "doodle" not "rude part". 22She rejected the contention that RR did not say to her anything about taking a pee in the toilet. However, she agreed that after the appellant denied the incident she said, "That's a load of crap she's in tears" and that he said, "That's not true, that's not true" and "I didn't do it. I didn't do it". She agreed that her statement to the police did not talk about taking a pee in the shed but she denied that was a lie. She agreed that she spoke to MW about the incident after the police arrived and before the formal interview, but maintained that MW told her about RR "making her suck his doodle" before LW asked her about it. 23In those circumstances, the critical challenges to MW's evidence were first that the appellant said to her "What have I done" rather than "I didn't do it" when he was initially challenged, and that she lied when she said that the appellant said to her that MW came across him when he was in the toilet in the shed. 24The appellant's son LR gave evidence. In chief he said that he was playing dirt games and monkeys in a barrel with MW in the little patch of dirt in his backyard. He said at the time his father was either in the shed or standing in front of the shed. He said that when RR was in the shed he was sitting down. 25LR said that at some point the appellant asked him and MW to go inside. They did and he (LR) put a DVD on, but MW said she would check if her mother was home. 26In cross-examination LR did not accept that he was playing with MW out the front but repeated that they were playing dirt castles near the shed. He stated that the appellant told him and MW to go and wash their hands and after than that they had a go at hide-and-go-seek and then they put on a video or DVD. 27He was asked about a previous interview in which he had participated and recalled that he had told the interviewer about a hide-and-seek in the shed and that he had found MW in the shed and under a blue blanket. He affirmed that it was his recollection that this happened on 22 March, which he recalled as the "police incident day" and the "third day of Easter", and that he found MW on the appellant's lap on her knees facing away from the appellant, under the blanket. He said he then had a go at hiding, she found him, they played dirt castles again, and then they went inside. He said that his dad's clothes were sometimes on the floor of the shed, and that when his dad came into the house after they had been sent inside, he had changed clothes. 28The former de facto partner of the appellant gave evidence that the appellant kept his work clothes in the shed, that they were rarely washed, and often strewn about the floor. She said the complainant and her son, LR, often played in the shed. 29A Detective Sergeant Lawson gave evidence. He attended the home of LW and MW on the afternoon of 22 March. He observed MW sitting with her mother holding her tightly. He recalls MW mumbling something and MW saying, "Blanket over head". He also recalled her saying, "I couldn't see he yelled at me open your mouth". The appellant gave Detective Sergeant Lawson permission to search the shed, which he did. He said the shed was untidy and contained a number of blue blankets. He stated in cross-examination that there were no red blankets there, and that on first arriving at the W premises LW summarised what she said MW had recounted to her, in front of MW. 30A Mr Bruce, an analyst at the Division of Analytical Laboratories, gave evidence. He gave evidence that no testing was done on the blankets he received. Testing of semen was conducted on the complainant's dress but no semen was detected. 31He gave evidence that DNA was recovered from a tape lift taken from the inside right front area of the appellant's jeans. He said that the DNA appeared to be a mixed profile that originated from two individuals, one male and one female. He stated that the female contributor had the same DNA profile as the complainant and the male contributor of the DNA matched the DNA profile of the appellant. A similar result was obtained from a tape lift taken from the inside left front fly area of the jeans. 32Samples were also recovered from tape lifts taken from the outside right front area of the jeans and the outside left fly area. The DNA appeared again to be a mixed profile that originated from two individuals. The major profile was consistent with originating from the appellant and the complainant could not be excluded as the minor contributor. Mr Bruce said the most likely source of the minor contributor's DNA was a high yield source such as saliva, blood, semen or vaginal secretions. Three centimetre-square pieces of the jeans were taken from the inside fly area and tested for the presence of saliva, but none was found. 33In cross-examination Mr Bruce agreed it was possible that the minor contributor to the DNA on the inside of the jeans could have deposited that DNA by touch, although it was more likely the source was a high yield source such as saliva, blood, semen or vaginal secretions. He agreed he could not say how long the DNA had been on the jeans. 34The appellant did not give evidence but an electronically recorded interview between him and Detective Senior Constables Aitken and Cornes was admitted into evidence. 35The appellant stated during that interview that he had come home from his work at the wrecking yards and saw his son LR and MW playing in the front in a mud puddle near the tap (Q 99). He stated that he was in the backyard trying to work out why the power had cut out (Q 101). 36The appellant stated he did not take much notice of LR and MW until it started raining (Q 150 - Q 151) and then he walked around the front and told them to get out of the rain and wash their hands (Q 152 - Q 154). He stated that he probably went into the shed to grab some screwdrivers and to check the power board (Q 164). 37He stated that when MW went home he was sitting on the front step. 38The appellant was asked the following questions concerning whether either MW or LR had been in the shed that afternoon: "Q213 Whilst you were out in the backyard, did you see [MW] or [LR] out in the backyard? A Yeah, I told them to go and wash, wash their hands and that. Q214 OK. A 'Cause they were covered in mud and it was flogging down rain. Q215 Yes. A To get out of the rain. Q216 And whilst in the shed, did [MW] come in the shed at all? A No, not that I can recollect, no. No. No. Q217 No. A No. Q218 OK. So whilst, because, I've been informed that whilst, did [MW] and [LR], did they play any games like hide and seek? A Couldn't tell you. Q219 OK. So you didn't ask, say, for, for, for [MW] to hide in the, she could hide in the, in the shed? A No. Q220 OK. So, I've just been informed that [MW]'s gone into the she [sic] where you were standing. A No, no, no-one went into the shed this evening. Q221 Well it's this afternoon I'm talking about A Yeah. Well - Q222 When [MW] was there. A - yeah, well no-one's been in the shed." 39During the interview RR persistently denied the allegations against him. His denials are summarised in the concluding portion of his interview: "Q228 Where you were standing and, facing, facing her, where you've asked her to open, open her mouth. What can you tell me about that? A I can't tell nothing about it because it's something that never happened. Q229 OK. She said then what's allegedly happened, that she said, No, so then you've yelled at her, where you've asked, told her to open her mouth, which - A I don't even raise my voice to my own kids. Q231 Then after you yelled at her, she has opened her mouth where you've pulled your penis out from a hole in you jeans, so the fly of your jeans, and placed it in her mouth. What can you tell me about that? A I can't tell you anything, like, [LR], my son and her are thick as thieves. Q232 Mmm hmm. A And like wherever she is, he is. And like, you've got me at a loss, like - Q233 OK. A - [LR] spoke to his mother and, yeah, what. Q234 Yes. OK. I'll just finish off. And once, once you've done that, this is what the allegations are, that you've placed a blanket over her head and put your hands on top of her head, put, forcing her head down, and then you've moved her [sic] penis in and out -- A You're kidding me. Q238 Yes. OK. And then she's, you've told her not to say anything because it was, Our secret. A No." 40Prior to counsels' addresses to the jury, the Crown Prosecutor indicated that she was relying on the material from answers 216-226 of the transcript of the interview of the appellant, where the appellant denied that whilst he was in the shed MW was in the shed with him at all, as a lie evidencing consciousness of guilt; this amounting to a claim that he had no opportunity to commit the offence as alleged by the complainant. Counsel for the appellant responded that he did not think that he could be heard against the Crown in that regard, although he stated that the evidence as recorded was open to at least two interpretations. However, he said he could not oppose a direction concerning consciousness of guilt and, at least implicitly, that the Crown could rely on the evidence for that purpose. 41Immediately prior to the commencement of closing addresses to the jury the trial judge said that she would not be "canvassing the evidence in detail with the jury in summing-up so that the parties should take the jury to such parts of the evidence as they see fit." There was no protest to this course. 42In her closing address the Crown relied on the following matters as evidence on which the jury could rely beyond reasonable doubt. First, that MW gave credible evidence and was not shaken on any of the key elements of the evidence. Second, the fact that MW made immediate complaint, relying on the evidence of LW and Detective Sergeant Lawson. Third, that MW's evidence was supported by the evidence given by LR, and that when LR came into the shed trying to find MW he found her under a blanket with the appellant. Fourth, the Crown said the DNA evidence supported its case and finally, that the interview with the appellant was at odds with the evidence of LR and MW on key elements. She stated (T 10) that if the jury found that the appellant was untruthful on the key issue of whether he was in the shed with MW and MW was under a blanket, and the jury found that his denial was a deliberate lie told by the appellant out of a consciousness of guilt, it corroborated the Crown case that sexual intercourse with MW occurred. 43Later in her closing (T 18-20) the Crown referred to questions 216-226 in the interview and said the jury could find those answers were lies arising out a consciousness of guilt. The Crown said, however, that the jury could only use that material in that way if they found that it was a deliberate lie, that it related to a material issue, that the motivation for telling it must be a realisation of guilt or fear of the truth and that it must be shown to be a lie by evidence independent of the complainant. 44Counsel for the appellant in his address requested the jury to look at the whole of MW's evidence, saying he did not propose to quote large lumps of it. However, he made specific reference to that portion of the evidence to which I have referred above where MW said she was not sure if the appellant "didn't really do that". He also referred to the re-examination and to MW's denial that anyone told her what to say coupled with her statement "I know the words mum" and her lack of recollection as to what she meant. 45So far as LW was concerned he pointed to the discrepancy in LW's evidence between her saying that after she confronted the appellant he said "What have I done" as compared to "I didn't do it. I didn't do it". 46In relation to the evidence of LR counsel for the appellant made the following remarks: "Now the next witness to give evidence in that chronological order I was talking about, was [LR]. You might have noted that [LR] did not tell a story that might have come from his father. Despite his father telling the police that [MW] and [LR] were like - I'm using paraphrasing here, 'two peas in a pod', they were always together. You will recall that [LR] was not interviewed for some time. There is not one hint, not one suspicion that [RR] on returning home has gone and spoken to [LR] and said, 'This is what you must say'. [LR] has given his little boy version and you would not dismiss it. You would not be dismissive of any of it. You'd look at the contradictions to what is said by [MW], because they are important contradictions. [LR]'s evidence should concern you because in the important things, they are largely at odds with [MW]. My friend wants to have them mirror images. They are largely at odds with each other. [LR] says that they were outside playing dirt castles, then they played hide-and-seek, this is in the back yard. Keep in mind they were in the front and we know they were playing near the tap, but outside playing dirt castles, then hide-and-seek. He found her in the shed, both my client and [MW] were seated, was [LR]'s memory. [MW] was on his knee. He described in detail the blue two toned blanket you will recall. He then talked about another game of hide-and-seek in which he got to hide. Remember he talked about hiding behind the lounge. Then there were more mud castles. You're dirty, it's going to rain. They washed in the cat's water and went inside and there was a game of hide-and-seek inside where [MW] hid and hid in his sister's bedroom. Then they went to put the DVD on and [MW], before it started, [MW] said she was going home to check if mum was there. Hurry back he said, or words to that effect, was his evidence. And as she went, dad was sitting on the step having a smoke and she went past him to go home. Not that can't sit with [MW]'s version. It can't sit with a terrible assault. This is your life experiences, this is where your commonsense comes into it. If the crown's version is to be believed, [MW] was terribly assaulted, and then she played another game of hide-and-seek and then she played a game of dirt castles and then they washed their hands and went inside and then they played another game of hide-and-seek in the bedroom and then they put the DVD on and then she said she will go home. How does that sit with your life experiences and your commonsense? How does that sit with what you known to happen in the real world? It's not the way of these things. Commonsense might tell you say. Examination of the evidence would raise the doubt." 47So far as the DNA evidence was concerned, counsel for the appellant pointed out that Mr Bruce was not able to say how long it had been there, in what order it was deposited or how it was deposited. Counsel also pointed out that no saliva was detected, that MW's DNA could have been transferred by touch, that MW played in the shed often and that RR's clothes were often strewn about. He said: "You might be surprised if [MW]'s DNA was not on it, seeing the kiddies apparently played in there regularly. Certainly it's a shame that there's not tested for [LR]'s and others. Certainly a shame, which might give you great comfort if the inside leg for instance or either of these legs of these trousers had been tested and what say [LR]'s, or what say, what say [MW]'s DNA was found down the back of the calf somewhere... You don't know because the evidence is silent." 48In answer to the record of interview and in particular the questions relied on as evidence of consciousness of guilt, counsel for the appellant made the following remarks: "But let me put it to you that you have a look at what he said and have a look at the way he said it. Have a look at his demeanour, his presentation. He is, in my respectful submission, an open book. 'And whilst in the shed did [MW] come in the shed at all?' Page 18, question 216. 'No, not that I can recollect, no, no, no.' He'd just been finished asking about 'Did you go in the shed? You'd probably been in and out of the shed?' 'Yes, more than likely.' He's not saying, 'I didn't go anywhere near the shed.' He's the one that volunteers about urinating behind the shed but says 'No one walked in on me.' What a great excuse, what a great excuse, maybe that's where she got the seed of the idea of this terrible allegation. He's not looking to create that sort of lie." 49The trial judge, in her summing-up, referred to the evidence of Dr Bruce and stated that it was not challenged and, accordingly, "unless it was unbelievable, you [the jury] would have to have a good reason to reject it" (SU 7). In relation to the evidence of MW she emphasised that the Crown depends on her word and therefore it was necessary to look very carefully at her evidence. She referred to MW's evidence in chief and stated that counsel for the appellant relied particularly on the last question "[RR] didn't really do that did he" and MW's answer "I'm not sure". She also referred to re-examination by the Crown Prosecutor, who asked MW "Are you saying that you aren't sure whether [RR] made you suck his doodle that day?", to which MW answered 'He did". 50Her Honour noted that in his record of interview the appellant absolutely denied that he committed the offence. She also noted that there was a complete denial of the allegation that he was in the shed with MW. 51After referring to this denial the trial judge again emphasised that the Crown case depended very heavily on accepting MW as a witness of truth. She then referred to other evidence which the Crown said supported MW's evidence, the first being immediate complaint. In this context she referred to the evidence of LW, but referred to the fact that counsel for the appellant suggested LW would not be accepted as a reliable witness. 52Her Honour then referred to the evidence of LR. She stated that counsel for the appellant suggested LR's evidence did not support the Crown case. She said that counsel for the appellant had reminded the jury that LR said he found MW seated not standing, whereas MW said she was standing in her first account, and that LR's evidence was that she was under a blue blanket whereas the complainant's evidence was that it was a red blanket. She also referred to the fact that counsel for the appellant had reminded the jury that LR's evidence was that they had played other games before MW went home, and that if that was accepted it was inconsistent with MW having been sexually assaulted as she said. 53In relation to the DNA evidence her Honour pointed out that counsel for the appellant had referred to the fact that there was no blood, semen or saliva found in testing by the laboratory, and the testing did not establish when the cellular material was placed on the jeans, how long it had been there, or how it came to be there. She also referred to the suggestion that it may have arisen from touching. 54Her Honour then returned to that portion of the evidence said to establish consciousness of guilt. In that context she gave a direction consistent with what was suggested by the High Court in Edwards v R [1993] HCA 63; (1993) 178 CLR 193 at 210-211. 55At the conclusion of the trial judge's address, counsel for each party were asked whether they wished her to add anything. Counsel for the appellant said that he did not require anything more to be said. 56In their deliberations the jury had available to them the DVD of the appellant's interview of 22 March 2008, the DVD of MW's interview of that date, the transcript of the evidence of MW at the previous trial and a transcript of LR's first interview with the police.

The appellant's submissions on the first ground of appeal 57The appellant in his written submissions, in reliance on the decisions of this Court in R v Sutton (1986) 5 NSWLR 697 and R v Heyde (1990) 20 NSWLR 234, submitted that it was only in rare cases that a lie told by an accused could amount to corroboration as evidence of consciousness of guilt. He submitted that whether the statement said to be a lie is capable of providing corroboration is a question of law to be decided by the trial judge. He submitted that only lies which suggest that the liar cannot give an innocent explanation of proved facts are capable of providing corroboration and that to amount to an admission of guilt the only reasonable inference from the circumstances must be that he knew that if he told the truth he would be found guilty. 58At the hearing of the appeal, counsel for the appellant focused principally on the evidence which was said to independently establish that the appellant lied when he said that MW had not been in the shed on the day in question, namely, the evidence of LR. She submitted that to establish that RR had lied the jury must have accepted LR's evidence, and if they had the jury would have to find RR innocent because what LR observed was inconsistent with what MW said occurred. She further submitted that if "the evidence was capable of rationally bearing upon the proposition that the appellant lied about being in the shed, the question then was whether he was lying about being in the shed because of the fear of the truth of the complainant's allegations or whether he was lying because he was fearful of his son's observations." She submitted that if there was an explanation consistent with innocence it was important that the trial judge put it to the jury. She relied in this regard on the decision of this Court in R v Cook [2004] NSWCCA 52. 59Counsel for the appellant conceded that the matters the subject of this ground were not raised at the trial. In particular she conceded that no objection was taken by counsel for the appellant to the Crown relying on the alleged lies as evidencing consciousness of guilt, or to the direction given by the trial judge on this issue. In these circumstances she accepted that r 4 of the Criminal Appeal Rules applied. However, she asserted that the error amounted to a miscarriage of justice.

The Crown's submissions on the first ground 60In its submissions the Crown pointed first to the fact that counsel for the appellant at the trial neither objected to the Crown relying on the answers to questions 216-226 in the interview of the appellant as lies demonstrating consciousness of guilt, nor to the direction proposed by the trial judge. The Crown submitted that the direction in fact was beneficial to the appellant. The Crown submitted that the direction given satisfied the requirements of Edwards v R supra as adapted to the evidence in this case. 61The Crown also submitted that leave under r 4 should not be granted, submitting that it should be inferred that the decision not to object to the use by the Crown of the lies as consciousness of guilt or to the direction was for sound forensic reasons, citing R v ITA [2003] NSWCCA 174, and that for leave to be granted under r 4 the appellant must show he had lost a real chance of acquittal, something which had not occurred in the present case. 62The Crown in particular pointed out that at the time the appellant gave the interview containing the alleged lie his son had not made any statement and, therefore, the appellant had no knowledge of what his son would say.

Consideration 63As I indicated the appellant placed reliance upon what was said by this Court in R v Heyde supra in support of the proposition that the Crown should not have been permitted to use the answers to questions 216-226 as lies evidencing consciousness of guilt. In that case, Gleeson CJ, who agreed with Clarke JA, made the following comments (at 236-7): "If, by evidence or admission, it is proved that an accused person has told a lie, that is to say, made a deliberately false statement, in court or out of court, then, provided various conditions are fulfilled, the jury may regard the lie as demonstrating a consciousness of guilt and may treat the lie as corroboration. The conditions in question are discussed in various cases referred to in the judgment of Clarke JA including, R v Lucas, (Ruth) [1981] 1 QB 720. However, commonsense and ordinary human experience indicate that a judgment as to whether a lie reveals a consciousness of guilt, although one which people not infrequently make, may, depending upon all the circumstances, be very difficult. People tell lies for many reasons other than a consciousness of guilt. For example, a person may tell lies to escape a false accusation, just as a person may be put to flight by the threat of unjust arrest." Whilst the conclusion of Clarke JA was to the following effect (at 246): "My conclusion is that there is only a very limited class of lies by an accused which are capable of constituting corroboration of the evidence of a prosecution witness. For my part I think that the most helpful test is that which emerges from Eade and that it is only lies which suggest that the liar cannot give an innocent explanation of proved facts, or that he is unable to account for what witnesses say they saw in any way consistent with his own innocence which are capable of providing corroboration." 64In that case Clarke JA at [244] suggested that both the primary facts (the statement said to constitute the lie and the fact it was a lie) and the inferred fact (that the lie demonstrated consciousness of guilt) must each be proved beyond reasonable doubt. However, as was pointed out by the plurality in Edwards v R supra (at 210), an admission constituted by the telling of a lie may be considered with other evidence, and for that purpose does not have to be proved to any particular standard of proof but may be considered with other evidence which as a whole must establish guilt beyond reasonable doubt. 65R v Sutton and R v Heyde were decided before the High Court decisions in Edwards supra and Shepherd v The Queen (1990) 170 CLR 573 (on circumstantial evidence generally) and it is to Edwards and subsequent New South Wales cases, rather than to Sutton and Heyde, that reference should be made for the principles applying to lies as consciousness of guilt. 66The circumstances in which lies can be used as evidencing consciousness of guilt, in my opinion, were correctly summarised by Simpson J in R v Lane [2011] NSWCCA 157 at [56]-[58]: "[56] The principles applicable to evidence of lies told by an accused person as evidencing consciousness of guilt were comprehensively spelled out in Edwards v The Queen [1993] HCA 63; 178 CLR 193. They had their origin in Reg v Lucas (Ruth) [1981] QB 720 as summarised (uncontroversially) by McHugh J in Edwards (although in a dissenting judgment as to their application). They are (I have slightly paraphrased): (1) the lie must be deliberate; (2) the lie must relate to a material issue; (3) the motive for the lie must be a realisation of guilt and a fear of the truth; (4) the statement said to constitute a lie must clearly be shown to be a lie by admission or by evidence; where evidence of the lie is tendered as corroboration of the evidence of a witness, the evidence showing that the statement is a lie must be from a person other than that witness. [57] In the joint judgment of Deane, Dawson and Gaudron JJ, the following appears: 'But not every lie told by an accused provides evidence probative of guilt. It is only if the accused is telling a lie because he perceives that the truth is inconsistent with his innocence that the telling of the lie may constitute evidence against him. In other words, in telling the lie the accused must be acting as if he were guilty. It must be a lie which an innocent person would not tell. That is why the lie must be deliberate. Telling an untruth inadvertently cannot be indicative of guilt. And the lie must relate to a material issue because the telling of it must be explicable only on the basis that the truth would implicate the accused in the offence with which he is charged. It must be for that reason that he tells the lie. To say that the lie must spring from a realisation or consciousness of guilt is really another way of saying the same thing. It is to say that the accused must be lying because he is conscious that 'if he tells the truth, the truth will convict him'. [58] Underlying the four propositions stated by McHugh J (and echoed in the joint judgment) is an initial proposition that is so obvious that it hardly needs to be stated (and usually is not). That is that the statement made by the accused said to be a lie is factually false or wrong. That a statement is factually false or wrong does not necessarily connote that it is a lie - that is what is meant by including in the requirements that it is a deliberate lie. (Where such evidence has been admitted for the stated purpose, it is always necessary that the trial judge give a direction drawing to the jury's attention possible alternative reasons that the accused person might have lied. That issue does not presently arise.)" 67In the present case the lie identified was that MW was not in the shed on the day in question. Having regard to the answers given by the appellant to questions 216-226 in the interview, there can be little doubt that that was what the appellant was asserting. 68The second question was whether the jury could find it was a deliberate lie. The evidence was contrary to the evidence of MW and, more importantly, to that of LR. If the jury accepted that LR was correct when he said that he saw MW and RR in the shed that day, the jury could find the appellant was lying, particularly in circumstances where the denial took place on the same day that the incident in question was said to have occurred. 69Counsel for the appellant placed great stress on what was said to be the inconsistencies between the evidence of MW and LR; the colour of the blanket, the position MW was in when found by LR and, importantly, that MW agreed that an incident of the nature of that described by LR had occurred on a different day. The latter matter formed the basis of the appellant's submission that if LR was believed the jury should have entered a verdict of acquittal. 70In my opinion, it was open to the jury to accept the evidence of LR to the effect that he saw MW and RR in the shed on the day in question. It was, of course, a matter for the jury to evaluate the discrepancies in the evidence of MW and LR as part of their determination of whether the offence was proved beyond reasonable doubt. However, it was open to them to conclude that LR was correct in saying that he saw MW and RR in the shed on the day in question, whilst not accepting other parts of his evidence to the extent it differed from that of MW. 71In the present case, the lie plainly related to a material issue, namely the fact that MW and RR were in the shed together on the day in question. 72The fourth matter referred to by Simpson J in Lane at [56], namely that the evidence demonstrating the statement was a lie should come from a person other than (in this case) MW, was satisfied in the present case by the evidence of LR. 73It follows in my view that the trial judge was justified in permitting the evidence to go to the jury as evidence of consciousness of guilt. 74Thus far I have dealt with the matter without reference to r 4. Its effect was summarised by McHugh J in Papakosmas v R [1999] HCA 37; (1999) 196 CLR 297 as follows (at [72]): "There is no case for the grant of leave under r 4 unless the Court of Criminal Appeal is satisfied that the appellant has an arguable case that the trial judge has made an error of law or is satisfied that the appellant's conviction is otherwise a miscarriage of justice. Satisfying the Court that there is an arguable case is extremely difficult where the appellant has failed to object to evidence or failed to ask for a direction concerning evidence. In such cases, a trial judge has made no error of law because he or she has not been asked for a ruling. Consequently, an appeal can only succeed if the Court of Criminal Appeal is satisfied that the admission of evidence or the failure to give the direction has caused a miscarriage of justice, proof of which lies on the appellant. Where the evidence was admissible, but the trial judge had a discretion to limit its use, the burden on the appellant is greater: the appeal can succeed only if the Court of Criminal Appeal is satisfied that the discretion would have been exercised in favour of the appellant and that, if it had, it is more likely than not that the appellant would have been acquitted." 75Subsequent cases have established that the following matters are important in considering the operation of r 4: (a) The requirements of r 4 are not mere technicalities. The Court of Appeal Act 1912 does not exist to enable an accused who has been convicted on one set of issues to have a new trial under a new set of issues which could or should have been raised at the first trial: R v ITA supra at [94], citing with approval R v Fuge [2001] NSWCCA 208; (2001) 123 A Crim R 310, 319. See also Darwiche v R [2011] NSWCCA 62 at [170]. (b) The appellant must establish that he or she has lost a real chance (or a chance fairly open) of being acquitted: Picken v R [2007] NSWCCA 319 at [20]-[21]. (c) A failure by counsel to take objection or to raise an issue on summing-up may be explicable by the fact that he said nothing hoping to gain an advantage at a later stage, or that he took no objection as, in the atmosphere of the trial, he saw no injustice as to what was being done: Germakian v R [2007 NSWCCA 373; (2007) 70 NSWLR 467 at [10]-[13]; Sanchez v R [2009] NSWCCA 171; (2009) 196 A Crim R 472 at [62]. (d) An unexplained failure to take the point at the trial is usually a reasonably reliable indicator of the fairness and adequacy of the summing-up: Tekely v R [2007] NSWCCA 75 at [89], [130]-[133]. 76Having regard to these matters, even if I was of the view that the trial judge was in error in permitting the evidence to go to the jury as evidence of consciousness of guilt, I would not have granted leave under r 4 as I do not consider that the appellant has demonstrated a miscarriage of justice. There was a significant body of evidence apart from the alleged lie on which the jury could have convicted the appellant. Most significantly, there was the evidence of the immediate complaint to LW and later to Detective Sergeant Lawson. There was also the DNA evidence which, although by no means conclusive, supported the Crown case. In these circumstances I am of the view that the appellant has not made out that there was a miscarriage of justice.

The Crown ' s submissions on the second ground of appeal 80The Crown pointed to the fact that no objection to the summing-up had been taken by counsel for the appellant at the trial. To this it might be added that counsel did not demur when, immediately prior to the summing-up, her Honour indicated that she would not be canvassing the evidence in detail with the jury. The Crown in these circumstances relied on r 4. 81The Crown accepted that the trial judge had the responsibility of putting the defence case fairly before the jury; however, it pointed to the fact that it was a relatively short trial and that the complainant's evidence comprised her video recording to the police and her evidence from a previously aborted trial. The Crown also pointed out that the record of interview of the appellant was played to the jury on the third morning of the trial (the last day of the evidence). As I indicated earlier (at [56]) the jury had available to them in their determination the DVD of the appellant's interview of 22 March, the DVD of MW's interview of that date, the transcript of the evidence of MW at the previous trial and a transcript of LR's first interview with the police. 82In these circumstances, the Crown submitted, it was not necessary to identify and repeat the points made by the defence, and in particular relied on what was said by Wood CJ at CL in R v Davis [1999] NSWCCA 15 and R v Williams [1999] NSWCCA 9; (1999) 104 A Crim R 260. 83Further, the Crown submitted that the trial judge properly put the defence case in any event.

Consideration 84In R v Veverka supra, Street CJ, with whom the other members of the Court agreed, referred to the principle enunciated by Barwick CJ in Pemble v R [1971] HCA 20; (1971) 124 CLR 107, to the following effect: "Whatever course counsel may see fit to take, no doubt bona fide but for tactical reasons in what he considers the best interest of his client, the trial judge must be astute to secure for the accused a fair trial according to law. This involves, in my opinion, an adequate direction both as to the law and the possible use of the relevant facts upon any matter upon which the jury could in the circumstances of the case upon the material before them find or base a verdict on whole or in part." ( Veverka at 480) He also emphasised (at 482) that a summing-up must contain an adequate presentation of the defence case to enable the jury from the terms of the summing-up itself to comprehend and understand what the defence case is ; See also CC v R [2010] NSWCCA 337 at [25]. 85In R v Zorad (1990) 19 NSWLR 91 this Court stated (at 105): "A summing-up should, in every case, not only include directions as to the ingredients of the offence which the Crown has to establish and an explanation of how the relevant law may be applied to the facts of the particular case, but it should also include a collected resum e of the evidence which relates to each of those ingredients and a brief outline of the arguments which have been put in relation to that evidence". In R v Tillot (Court of Criminal Appeal, 8 April 1991, unreported) Hunt J said that the trial judge's obligation to collect the evidence and the outline of the arguments applies to those ingredients (elements) which were in dispute at the trial (and not, as Zorad might suggest, every element of the offence). Similarly, in Condon v R (1995) 83 A Crim R 335 the Court emphasised (at 347) that the task of the trial judge is not merely to give formal directions of law as to the legal elements of the offence, but to explain to the jury the application of these elements to the respective cases of the Crown and the accused. 86The application of these principles does not mean that the trial judge is obliged to summarise all the events at the trial. So much is made clear by s 161 of the Criminal Procedure Act . In R v Williams supra, Wood CJ at CL, with whom Spigelman CJ and McInerney J agreed, made the following observation as to the application of these principles in short, single issue trials: "[42] His Honour went into no greater depth in dealing with the prosecution case. In a single issue trial as short as this, when the summing-up concluded within a morning and followed immediately upon the address of defence counsel, I am unconvinced that it was necessary for the trial judge to have undertaken a comprehensive analysis of the kind that the appellant now contends for. His Honour's assessment of the position was made evident by the observation as to the eloquence of the defence submissions concerning the complainant's credibility, which he said would 'still be ringing' in the jury's ears. [43] The common sense and intelligence of the jury requires respect, as does the experience of trial counsel who, in this case, expressly stated that he did not require any further direction or redirection. [44] I am unpersuaded that in a short trial, where the focus was on the complainant's credibility, anything would have been achieved by yet another restatement of that issue or of the points made either by the Crown or by the defence. The position is likely to be otherwise in a complex and lengthy trial, to which the observations in Domican are particularly apposite. It would also have been otherwise had the trial judge here undertaken, for example, a detailed analysis of the Crown case and then dismissed the defence case in short terms. What is required is a fair balance when any excursion into the issues and evidence is undertaken. Again I am of the view that leave should be refused to argue this ground under r 4 of the Criminal Appeal Rules . [45] Without wishing to labour the point which has now been made many times, I would repeat the observations that I made in PAH concerning the need for trial counsel, among whom I include both the Crown Prosecutor and defence counsel, to be vigilant in ensuring that any necessary directions or redirections are sought at trial. A clear risk of a miscarriage of justice will need to be identified, before this Court would intervene, where complaint has not been made at the trial. Particularly is that the case in relation to those matters which are well recognised as potentially calling for warnings." 87His Honour made similar observations in R v Davis supra (at [24]): "Where the summing-up in a short trial has followed hard on the heels of a defence address, particularly where the appellant has not offered any evidence, very little is likely to be achieved by a reiteration of the evidence or of the points made by counsel in their closing addresses. To so require would be to credit the jury with little in the way of intelligence or common sense. An exercise of judgment is always required, on the part of the trial judge, to frame the summing-up in a way that is helpful to the jury. To elevate the observations in RJC and Zorad to a requirement that, in every case, regardless of its length or complexity, the trial judge must identify and repeat the points made by defence counsel, the relevant evidence, would be to go too far. Counsel should be expected to contribute in this regard, and to disclose whether they seek more, by way of summary [of] the evidence and of the submissions, than the judge proposes." 88The fundamental task of the trial judge is to ensure that the accused has a fair trial. The position was summarised by the plurality of the High Court in RPS v R [2000] HCA 3; (2000) 199 CLR 620 in the following terms (citations omitted): "[41] Before parting with the case, it is as well to say something more general about the difficult task trial judges have in giving juries proper instructions. The fundamental task of a trial judge is, of course, to ensure a fair trial of the accused. That will require the judge to instruct the jury about so much of the law as they need to know in order to dispose of the issues in the case. No doubt that will require instructions about the elements of the offence, the burden and standard of proof and the respective functions of judge and jury. Subject to any applicable statutory provisions it will require the judge to identify the issues in the case and to relate the law to those issues. It will require the judge to put fairly before the jury the case which the accused makes." 89The extent that the requirement of a fair trial will involve a detailed analysis of the evidence will depend, as was pointed out in R v Williams supra and R v Davis supra, on the particular circumstances of the trial. 90In the present case the trial was short and the jury had most of the evidentiary material available to them in the jury room. Further, counsel did not complain as to the course adopted. These matters, although by no means decisive, do point to the fact that the appellant received a fair trial. 91The appellant's complaints can be divided into four categories. The first is that the trial judge failed to adequately refer to the evidence of LR. I have set out in some detail (at [46] above) the remarks made by counsel for the appellant on that evidence in his address to the jury. He emphasised the inconsistency with the evidence of MW, referring in particular to LR stating that he found MW on the appellant's knee and the description of the blue blanket in detail. He pointed out in his address that LR's evidence of what occurred after MW left the shed was inconsistent with an assault of the nature of that alleged. The trial judge in her summing-up referred to each of these matters. The fact that she did not refer in detail to the evidence which supported these submissions does not seem to me of great significance in circumstances where the jury had very recently heard it. 92In these circumstances, it seems to me that the trial judge fairly put the appellant's case to the jury on this issue. 93The second category which is related to the first is that the trial judge did not deal specifically with the complainant's evidence that the events described by LR occurred on another day, and that this was capable of explaining the transfer of the DNA. This evidence must be considered in the context that the defence case at trial was that the events described by LR occurred on the day in question and that that evidence should have led the jury to have reasonable doubt as to MW's version of the events. The appellant having sought to make use of the evidence in that way cannot, in my opinion, complain of an absence of a fair trial because of the failure of the trial judge to put to the jury a version of the events on which he was not relying: See Darwiche v R supra. 94The third category of evidence is the appellant's record of interview. That was the last piece of evidence the jury saw and heard and the jury had a copy of the DVD. Counsel for the appellant emphasised that the jury should look at what he said and how he said it. Her Honour noted the appellant's absolute denial of the offence. In these circumstances, it was not necessary, in my opinion, for the trial judge to go through the aspects of the evidence of the appellant's interview referred to in pars 4.2-4.14 of the appellant's submissions referred to above, particularly when no particular reliance was placed on this evidence by counsel who appeared for the appellant in the court below. 95The fourth category was the evidence of the appellant's wife to the effect that the appellant was flabbergasted at the complaint and that the appellant wore his work clothes for days and weeks in a row and they were left strewn about the shed. (See pars 4.14 and 4.24 of the submissions referred to above.) No reliance was placed on this evidence by counsel for the appellant and it does not seem to me that a failure to refer to it deprived the appellant of a fair trial. 96In these circumstances, ground 2 of the grounds of appeal has not been made out. 97Thus far I have dealt with the matter without reference to r 4. However, having regard to the course of the trial and the matters to which I referred when I considered the application of this rule in respect of the first ground of appeal (see at [76]) it does not seem to me that there was any substantial miscarriage of justice. In those circumstances, I would not grant leave under r 4 to raise this ground of appeal. 98It follows that the appeal against conviction should be dismissed.

[2005] HCA 25

[2008] NSWCCA 172

(2000) 202 CLR 321

(1993) 178 CLR 193

(2007) 70 NSWLR 467

(2010) 85 ALJR 195

(1936) 55 CLR 499

(1971) 124 CLR 107

(1999) 196 CLR 297

(1990) 20 NSWLR 234

(1986) 5 NSWLR 697

(2004) 60 NSWLR 168

(1990) 19 NSWLR 91

(2000) 199 CLR 620

(2001) 207 CLR 584

(1990) 170 CLR 573

(2010) 242 CLR 520

(1984) 154 CLR 606

[2011] NSWCCA 62

[2000] HCA 54

[2010] NSWCCA 194

[2009] NSWCCA 300

[2010] HCA 45

[1999] HCA 29

[2011] HCA 39

[2007] NSWCCA 319

[2009] NSWCCA 171

[2007] NSWCCA 75

[2005] NSWCCA 283

[2004] NSWCCA 247

[2004] NSWCCA 131

[1999] NSWCCA 9

[1999] HCA 37

[2010] NSWCCA 337

[2009] NSWCCA 254

[2004] NSWCCA 434

[2010] NSWCCA 74

[2001] NSWCCA 208

[2011] NSWCCA 50

[2011] NSWCCA 49

[2008] NSWCCA 274

[1936] HCA 40

[2000] HCA 3