Criminal law - evidence - evidentiary matters relating to witnesses and accused persons - corroboration - warning required or advisable - accomplices

• Judge directed that if jury was satisfied that corroboration existed, it might ignore the accomplice warning given - comment which should be avoided - no misdirection or miscarriage in the circumstances. R v Lawford [1993] SASC 4247; (1993) 61 SASR 542; R v Aadford (1993) 66 A Cr R 210, applied.

Criminal law - evidence - corroboration - lies as corroboration - identified possible lie not shown to be admitted or to be provided by independent evidence - no clear basis for jury to conclude there was a lie without relying upon evidence of the accomplice to be corroborated - mere disbelief of evidence of defendants not adequate without independent evidence. Edwards v R [1993] HCA 63; (1993) 178 CLR 193; R v Evans (1985) 38 SASR 344, applied. Shepherd v R [1990] HCA 56; (1990) 170 CLR 573; R v Dellapatrona (1993) 31 NSWLR 123, considered.

Criminal law - evidence - cross-examination - appellant gave evidence that he had suffered a back injury, and hence physically restricted in 1992 foundation for a submission that the appellant could not have vaulted a bank counter - cross-examined by prosecutor to show that appellant's compensation claim in relation to the back injury had been settled after a film had been produced showing the appellant working on a construction site - prosecutor suggested that appellant had told lies in relation to the compensation claim and had committed perjury - prosecutor would have been granted permission, if necessary, to cross-examine in relation to the film and the circumstances of the compensation claim, but not in relation to the alleged lies or perjury of the appellant - no miscarriage arising from the asking of these questions.

HRNG ADELAIDE, 22-23 April 1996 #DATE 29:5:1996 #ADD 4:7:1996

Counsel for appellant B Power: Ms M Shaw With Mr J Hyde

Solicitors for appellant B Power: Caldicott and Co

Solicitors for appellant G Power: Duncan and Hannon

ORDER Convictions recorded against each appellant set aside, and a new trial ordered.

JUDGE1 DOYLE CJ Each of the two appellants in this matter complains of his conviction upon the verdict of a jury on three counts of armed robbery. Each appellant also complains that the sentence which he received was excessive.

2. Each count alleged that the two accused robbed a branch of a bank, one of them being armed with a revolver. There was no doubt that the robberies had occurred. They were committed on 3 November 1992, 24 November 1992 and 23 December 1992. Each bank branch was situated in an Adelaide suburb.

3. The prosecution case at trial depended heavily upon the evidence of an accomplice, one B. He gave evidence that the two appellants participated in each of the armed robberies.

4. As B was an accomplice, the issue of what evidence might corroborate his evidence assumed considerable importance. Much of the argument on appeal was directed to that issue, and in particular to the questions of whether the evidence identified by the prosecution as corroboration was correctly admitted and whether the judge's directions relating to that evidence were adequate. The appellant Bernard Power relied upon a further ground of appeal based upon certain cross-examination of him by the prosecutor.

EVIDENCE OF FLIGHT AND RELATED MATTERS 5. On 26 June 1993, a detective accompanied by other police officers went to an address in Adelaide and there spoke to Bernard Power. He told him that the police were investigating a series of bank hold-ups that had occurred recently in the metropolitan area and that they had reason to believe he was involved in these hold-ups. Bernard Power denied any involvement. The police searched the premises, at which he apparently lived with his mother and sister. In the early hours of the following morning the detective, again accompanied by other police, visited another address in Adelaide. That was apparently where Gary Power lived. Bernard Power was there also. Again the detective said that he was investigating a series of bank hold-ups in which he believed Gary Power may have been involved. The detective said that he mentioned in particular the robbery the subject of Count 2. Gary Power denied any involvement in the robberies. The premises were searched. The detective told each appellant that he might wish to speak to them further, and the police then departed.

The appellants, on 1 July 1993, left Australia and travelled to the United Kingdom, where they remained for some time. They later returned to Australia, and some time after their return were arrested and charged with the offences for which they stood trial.

The prosecution advanced as evidence corroborative of the accomplice B the fact of the departure of the appellants from Australia so soon after the visits by the police. The prosecution also relied upon evidence of what was said by each appellant in certain telephone conversations (intercepted and recorded by the police) between each appellant while absent from Australia and family members and friends who were in Australia. In brief, in these conversations the prosecution relied upon the fact that the appellants used false names, took care not to disclose their identity, disclosed a very close interest in the activities of the police and indicated, by various remarks, that they were not remaining in the United Kingdom out of their own free choice. The prosecution also relied upon certain evidence that the appellants in other circumstances used false names.

The appellants explained their departure from Australia, and the other conduct referred to, by saying that they panicked when told they were under suspicion of having committed a series of armed robberies. They fled from Australia for that reason. Their fear of the police explained, they said, the concealment of their identities and the interest which they showed in the activities of the police.

On appeal, counsel for Bernard Power argued that this evidence should not have been admitted. It was, she argued, equivocal, potentially prejudicial and capable of misuse. Counsel for Gary Power focused his argument upon the directions in the summing up. My understanding is that each counsel supported and relied upon the submissions of the other.

In my opinion, the evidence was admissible. Taken as a whole it was evidence upon which the jury might conclude that the conduct of the appellants manifested a consciousness of guilt. There is adequate authority to support the view that evidence of flight (and I use this term compendiously to describe the whole of the evidence, because in my opinion it is all inter-related) is admissible as showing a consciousness of guilt: see, for example R v Melrose (1989) 1 QdR 572. It will not be often in such cases that the evidence is unequivocally indicative of guilt. There may, I suppose, be cases in which the evidence is intractably neutral, but I fail to see how the evidence in this case can be so regarded. Of course, the explanation advanced by the appellants was not a ludicrous or obviously false one, but to my mind that does not render the evidence incapable of supplying proof or evidence of guilt. If it did, then much circumstantial evidence which is routinely admitted would be rejected. In my opinion, the ruling by White J, reported in R v Bridgman (1980) 24 SASR 278, is not to be taken as meaning that evidence of flight is inadmissible simply because a credible explanation is advanced. In my opinion, the approach to be taken is that indicated by Sheperdson J in R v Melrose (supra) at 579 (assuming that the evidence is not intractably neutral): "I would however say that in my opinion, when there is evidence of flight before a jury whether there be one or more than one reason advanced for that flight, the jury should be told that it is for them to decide on the whole of

the evidence relevant to the charge in which evidence of flight has been admitted what inference is to be drawn from the accused person's flight but if at the end of the day they decide to infer a consciousness of guilt in the accused person for the offence alleged, they must be satisfied beyond reasonable doubt of such an inference."

In my opinion, the judge rightly admitted the evidence for the purpose identified by the prosecution.

I should add that this was not evidence of conduct which should or could be put aside as the result of an unguarded moment or action: cf R v Lander [1989] SASC 1827; (1989) 52 SASR 424 at 427. Nor was the evidence which brought in its train other complications, such as the disclosure of other misconduct or the fact that the accused was under suspicion of having committed other offences: cf R v Melrose (supra). When those problems arise there are various ways of dealing with them and they do not necessarily result in the evidence being inadmissible.

I turn now to the complaint about the directions which His Honour gave to the jury.

The judge told the jury of the need for corroboration and explained the meaning of the term. He reminded the jury of the evidence. He said in his summing up (at p15): "However, you must only regard it as capable of being corroboration if you reject any explanation for the accused's departure as a reasonable possibility other than a consciousness of guilt of these three robberies.

The evidence about going overseas does not stand alone ..."

As to each appellant, he reminded the jury of the departure from Australia, of the telephone conversations and of the use of false names.

The first complaint is that, having referred to these three aspects of the evidence, he said (as to Bernard Power) in his summing up (at p16): "That evidence, separately or taken together, is evidence which you could accept as a consciousness of guilt of the crimes charged."

And then (as to Gary Power) at p17: "That evidence, those three items as I have described them, separately or taken together, is evidence which you could accept as a consciousness of guilt by the second accused of the three crimes charged."

The complaint is that the evidence stood as a whole, that no single aspect taken in isolation was capable of supporting an inference of guilt or of leading to a conclusion that the relevant accused displayed a consciousness of guilt.

Taking the terms of the summing up quite literally, there is a force in this complaint, particularly if one considers for this purpose just the use of a false name on a particular occasion or the terms of a particular telephone call. But in my opinion the jury would have understood that His Honour was merely making the point that, in the context of this evidence as a whole, a particular aspect of the evidence might satisfy them that a consciousness of guilt was disclosed. His Honour had to deal with all three aspects of the evidence. He was also right to say that one aspect rather than another might seem significant to the jury. I do not consider that the jury would have understood these directions as inviting them to consider one aspect of the evidence in complete isolation from the rest, and to reach a conclusion without regard to their conclusion in relation to the other aspects. I would reject this criticism of the summing up.

Complaint was also made that the direction did not adequately isolate for the jury their task in this matter - to decide whether the evidence demonstrated an admission by the accused that he had committed the offences charged. This complaint was linked to what was said to be a failure to remind the jury sufficiently of the appellants' explanations for their conduct, and a failure adequately to alert them to the distinction between a consciousness of guilt and a desire to avoid the police arising from a feeling of panic when confronted with false accusations.

I would likewise reject this complaint. To my mind, the main issue confronting the jury was a clear one - whether they were prepared to reject the explanations advanced by each appellant and to conclude that the flight evidence (I again use the term compendiously, but accepting that some aspects might be seen to have a force which others lacked) was consistent only with a consciousness of guilt. His Honour had to canvass the particular items of evidence as he did. In doing so it was natural and sensible for him to comment on each aspect of the evidence. But in my opinion, none of this is likely to have confused the jury about its ultimate task. To some extent this must be a conclusion based on a consideration of the summing up as a whole. I have undertaken that exercise, and in my opinion, it did deal adequately with the issue of flight.

ACCOMPLICE WARNING 22. After giving the jury a warning about the need for care and caution in considering the evidence of B, and after directing the jury about the flight evidence, the judge said: "If you accept some corroboration against a particular accused is made out on your view of the evidence, then you may disregard the warning I have given you with respect to acting on Nick's (a reference to B) evidence against a particular accused."

Complaint was made that by saying that the judge implied that once corroboration was found, the warning about B as an accomplice ceased to have effect.

The judge began this aspect of the summing up by warning the jury that it was dangerous to convict unless B's evidence was corroborated. Then he told the jury that if there was no corroboration, they should scrutinise B's evidence with special care, and should not act upon it unless fully convinced it was thoroughly reliable. Then came the passage complained of. Along the way he referred to parts of the evidence.

In my opinion, the comment of which complaint is made is one that should be avoided, even though as a matter of logic it is accurate, because the warning is directed towards uncorroborated evidence. As King CJ said, when dealing with a similar complaint in R v Lawford and Anor [1993] SASC 4247; (1993) 61 SASR 542 at 555: "The traditional corroboration warning is concerned with uncorroborated and not corroborated evidence. However, a comment to the effect that the warning no longer applies if corroboration is present can give the impression that special care is no longer needed in assessing the witness's evidence: R v Radford (1993) 66 A Cr R 210 at 238."

It seems to me that what His Honour said in the present case ran the risk of giving rise to a misdirection because, as Phillips CJ and Eames J said in R v Radford (supra): "To suggest that once corroboration is found the jury might then treat the evidence of an accomplice in the same way as they would treat the evidence of any other witness would be a misdirection; an accomplice remains a person with a potential motive to lie and he is not an independent witness free of interest in the outcome of the case ..." It is a comment which should be avoided.

However, I am satisfied that no misdirection in fact occurred and no miscarriage has resulted from what His Honour said.

His Honour reminded the jury on another occasion of his warning, without repeating the qualification: summing up at p22. His Honour also separately reminded the jury at length of reasons for treating B's evidence with caution quite apart from his role as an accomplice: summing up pp 5, 6, 12, 14-15 and 25-42. His Honour, on a number of occasions, referred to evidence which might corroborate B, thus reminding them by implication of the importance of corroboration.

No request was made for a redirection on this point, suggesting that at the time the comment was not seen to have any great significance.

I do not consider that there was in fact a misdirection because I do not consider that the comment suggested that B's role as an accomplice could be disregarded. What was said was directed more to the need for special care in the absence of corroboration. The difference is slight, but it is the difference between suggesting that B could be regarded like any other witness and simply stating that the need for "special care" does not arise if corroboration is present. I am also influenced by the care taken in other respects to remind the jury of suggested motives for B to lie unrelated to his role as an accomplice.

LIES AS CORROBORATION 32. The judge identified a further aspect of the evidence which might supply corroboration for B's evidence in relation to the first count. That armed robbery was committed on Melbourne Cup Day. Each accused gave evidence, supported by another witness in each case, of being at his respective home that day.

The judge directed the jury that if they thought that evidence was a lie, told out of a consciousness of guilt or a wish to hide the truth, that lie could corroborate B in relation to the first count.

The complaint was that as there was no evidence that each appellant committed the robbery other than the evidence of B, the finding of a lie depended upon B's evidence and so involved reliance upon B's evidence to supply corroboration for his own evidence. It is clear that, for the lie of an accused to be corroboration, the falsity of the relevant evidence must be established by evidence other than the evidence to be corroborated: Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193 at 198 Brennan J, at 208 and 211 Deane, Dawson and Gaudron JJ at 215 McHugh J; R v Evans (1985) 38 SASR 344 at 348 King CJ.

In the present case the judge did not suggest to the jury that in deciding whether the appellants' alibis were lies, they should or could have regard to the evidence of B. His direction focused entirely upon the evidence of each appellant and the relevant supporting witness. The judge had already told the jury that corroborative evidence must come from an independent source.

However, it is not easy to see how, in a case like this, in which the lie is not admitted nor proved by independent evidence, the jury could in fact conclude that the respective alibis were the manifestation of a consciousness of guilt without reference to and reliance upon the evidence of B.

There is a further problem. In R v Evans (supra) the accused was charged with rape. Under the law, as it then stood, a direction had to be given about the danger of convicting upon the uncorroborated evidence of the complainant. A number of deficiencies were found to occur in the direction given. Relevant to the present point, King CJ said (at 349-350): "The second criticism is that the directions as to the use of 'any lies' does not distinguish between statements proved to be lies by admission of the accused or by evidence which is independent of the witness to be corroborated and

statements made by the appellant in court or out of court which the jury simply disbelieves. The distinction is critical. In Tumahole Bereng v The King (1949) AC 253 at p270, Lord MacDermott said: 'Nor does an accused corroborate an accomplice merely by giving evidence which is not accepted and must therefore be regarded as false'.

In Edmonds v Edmonds [1935] VicLawRp 35; (1935) VLR 177 at p186, Lowe J said: 'By no torturing of the statement "I did not do the act" can you extract the evidence "I did do the act".'

Mere disbelief of an accused person's statement out of court or in his evidence is not a proper basis for treating the statement as corroborative, even where it appears to be a lie arising from a consciousness of guilt. The fact that it is a lie must be proved beyond reasonable doubt either by the admission of the accused person himself or by evidence

from a source which is independent of the witness to be corroborated. A direction which invites the jury to treat any statements which they may consider to be lies indicating a consciousness of guilt as corroborative is a misdirection.

There was another error in the learned trial Judge's directions on the question of the use of lies as corroboration. He told the jury that if they were satisfied that the appellant's story of consensual sexual intercourse in the car park was a lie, they were entitled to use that lie as corroboration. If the appellant's story of consensual intercourse in the car park had been proved to be a lie by independent evidence or by his own admission, it could well have led to an inference of consciousness of

guilt and amounted to corroboration. The jury may well have thought that it was a lie by reason of the late production of the story, its inherent unlikelihood, and a degree of prevarication in relation to it. But such matters do not amount to independent proof beyond reasonable doubt of the falsity of the story. The only evidence which could enable the jury to reach the positive conclusion beyond doubt that the story was false was the evidence of the complainant herself and she is the witness to be corroborated. It is trite to say 'that its falsity cannot be established by the evidence only of the person to be corroborated because otherwise the person to be corroborated would be merely corroborating herself': Lonergan v The Queen [1963] TASStRp 13; (1963) TasSR 158, per Burbury CJ at p164." Jacobs J agreed with the judgment of King CJ, and on this point Mohr J (at 355) expressed himself to the same effect.

What is said there may require some reconsideration. It may not be necessary that the lie be proved beyond reasonable doubt. The Court of Criminal Appeal of New South Wales, which had previously followed R v Evans (supra) on this point, has now held, in the light of the High Court decision in Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573, that it is not necessary that lies be established beyond reasonable doubt: see R v Dellapatrona (1993) 31 NSWLR 123 at p149-150 and Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193 at 202 Brennan J; at 210 Deane J, Dawson J and Gaudron J; at 215 McHugh J. But that does not affect the requirement emphasised by King CJ that there be evidence "... from a source which is independent of the witness to be corroborated" before a lie be treated as corroboration.

We were not asked to reconsider this aspect of the decision in R v Evans (supra).

In my opinion this court, applying what was said in R v Evans (supra), must find that the alibi evidence was not capable of corroborating the evidence of B, and must conclude that in that respect the summing up was erroneous. The same conclusion follows in relation to alibi evidence advanced by Gary Power in relation to Count 3.

In my opinion, it is not possible to say that this misdirection could not have affected the verdict. The credibility of B was central to the case, and there seems to me to be no basis for saying that the jury would in any event have convicted upon B's evidence without reliance upon this evidence, quite apart from the difficulty presented by the possibility of the jury having been influenced in their attitude to B's evidence generally by the conclusion reached about the alibi evidence.

It follows, in my opinion, that the convictions must be set aside. I do not consider that it is practical to differentiate between the different counts, because a conclusion as to B's credibility on one of the counts subject to alibi evidence might have affected the jury's conclusion on other counts.

CROSS-EXAMINATION OF BERNARD POWER 43. In view of the conclusion which I have reached, it is possible to deal with this matter more briefly than I otherwise would.

At the trial, evidence was led by the prosecution of an occasion when police visited the house at which Bernard Power lived with his mother and sister. This was on 26 June 1993. The occasion is referred to above. The evidence was that Bernard Power's mother and sister told police, while he was in a room nearby and able to hear them, that he was not there. His explanation for this at trial was that he owed money to the State for unpaid traffic fines, and he had told his family to tell the police he was not at home if they came looking for him. This would then give him time to pay the fines before an attempt was made to arrest him on a warrant relating to the fines.

Counsel for Bernard Power was aware of convictions of his client some 20 years ago for illegal interference and attempted larceny.

When Bernard Power gave evidence he explained his conduct, and the conduct of his mother and sister, along these lines. But when asked by his own counsel if he had any convictions for other than traffic matters, he said that he did not. When counsel for the prosecution cross-examined him about the other convictions, he said that he had forgotten about them, the conviction being 20 years ago. Apart from identifying the nature of each offence by means of a question, the prosecutor left the matter at that.

In evidence-in-chief Bernard Power also gave evidence that some years ago he had suffered a back injury which significantly restricted his ability to work as a concreter and bricklayer. He said that in 1992 his mobility and physical agility were very restricted. The purpose of this evidence seems to have been to lay a foundation for a submission that, because of the injury, he could not have vaulted the counter of one of the bank branches in the manner in which one of the robbers had done. This was captured by a security camera. In cross-examination he confirmed that he could not have climbed over the counter in the manner shown on the film of the relevant robbery.

He was then cross-examined by the prosecutor about a claim for damages arising out of his back injury. This was heard in the Supreme Court in 1994, not long after he returned from the United Kingdom. He agreed that he made a claim for a large amount of money based on a claimed inability to work. He said he had not been able to work as a foundation worker from 1989 until 1994. He was then questioned about some work done during the period during which he had said he said he could not work. He said that he had not lied in the court case, but had forgotten about a couple of days work done in the concreting industry. It had been completely out of his mind when he gave his evidence-in-chief in the civil claim. It was then put to him that in the civil action he was shown a film which, putting it broadly, showed him working hard on a building site as a foundation worker. He agreed that had happened - the performance of the work and the showing of the film. He then agreed that after the film was shown and during a lunch break he settled his civil claim for little more than his costs.

Counsel for the prosecution, in the course of this cross-examination, put it to Bernard Power that he deliberately told lies about his ability to work in the civil action. In particular, he put the following question: "You went into the witness box in the Supreme Court and perjured yourself to back up your damages claim, didn't you?"

Bernard Power denied having done so. A little later counsel put the following question: "What I suggest to you is that you deliberately told lies to the Supreme Court in that action and then were caught out when the video was played to you."

Counsel for Bernard power did not complain, as she could not have, that he was cross-examined and challenged on his claimed inability to vault the bank counter. Nor, as I understand the argument, did she complain about cross-examination, using the film shown in the civil trial, to attack the evidence given by Bernard Power about his back. The complaint was that, without permission being obtained from the judge, the prosecutor attacked the character of the accused by going further and accusing him, in cross-examination, of lying on oath and of committing perjury. That submission was made on the basis, as is the fact, that Bernard Power had never been charged with or convicted of perjury, and that the only lie identified by the prosecutor was the failure to disclose the performance of the work disclosed by the film shown during the course of the civil trial.

My view, in brief, is that if permission to cross-examine on the film had been sought, assuming without deciding that permission was necessary, permission would certainly have been granted: cf Phillips v The Queen [1985] HCA 79; (1985) 159 CLR 45; Matusevich v The Queen [1977] HCA 30; (1977) 137 CLR 633. I so conclude because the appellant's agility and his back condition were relevant to the question of guilt, and the cross-examination on the civil claim for damages was an appropriate way of testing what the appellant had told the jury about his back condition. To demonstrate that a damages claim based on the back injury had been more or less abandoned was relevant to support an argument that the injury had never existed.

The cross-examination which the prosecutor was entitled to undertake to demonstrate that the claimed incapacity was false, would have revealed that Bernard Power had not disclosed performing the work shown on the film, and that the film had shown him working in a manner inconsistent with what he said in the civil proceedings. Unless the jury accepted his explanations, such as they were, it was implicit in the attack upon this aspect of his evidence that he had not told the full truth at his civil trial and had overstated his injury, if any. The jury were also entitled to know, in my opinion, that he had settled his damages claim for very little.

In my opinion, in asking the questions set out above, the prosecutor went too far. He did not introduce a topic or subject matter which it was impermissible to put to the jury, but he put an inappropriate edge to a matter properly before the jury - material suggesting that in a damages claim Bernard Power had given unreliable evidence relating to the condition of his back. But I am equally satisfied that no miscarriage of justice could have resulted. The line between what the jury would have inferred about Bernard Power's credibility, if they rejected his evidence about his back injury, and the accusation which the prosecutor threw at him, is a relatively fine one. Or, to put it differently, I do not think that ordinary jurors would see a significant difference between a suggestion that Bernard Power's conduct at the civil trial demonstrated that his claim of incapacity was false, and a suggestion that he had given false and indeed perjured evidence in the civil trial. I repeat, the questions were unwise, but in my opinion do not give rise to grounds for setting aside Bernard Power's conviction. I do not consider that leave would have been granted, if sought, to put such questions.

It is relevant to point out that at the trial, counsel for Bernard Power did not ask for the jury to be discharged and did not seek any particular directions in the summing up. This supports my conclusion that in the context of the trial the conduct of the prosecutor did not have the effect attributed to it on appeal.

SENTENCE 58. As the convictions should, in my opinion, be set aside, it is unnecessary to deal with the appeal against sentence.

ORDERS 59. In my opinion, the convictions recorded against each appellant should be set aside, and a new trial ordered.

2. I do so with reluctance, not because I have any hesitation in agreeing with the reasoning of the Chief Justice but because this was just one of a number of tricky points with which the learned trial judge in his summing up, had to deal. He dealt with the others accurately and clearly. It is always a shame when an error on one point in the course of a difficult summing up means that the whole is wasted.

JUDGE3 WILLIAMS J I agree with the order proposed by the Chief Justice for the reasons which he has given.