Court of Appeal (WA)|2001-08-14|Before: Wallwork J, Gaudron JJ, Kennedy J

Winmar v The Queen [2001] WASCA 239 (14 August 2001)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : WINMAR -v- THE QUEEN [2001] WASCA 239

Criminal law and procedure - Evidence - Lies told by accused in evidence - Reference by trial Judge to a blanket denial of 13 counts - Inadequacy of directions to jury - Convictions quashed

Chidiac v The Queen [1991] HCA 4; (1991) 171 CLR 432

Gallegos v The Queen [1999] WASCA 191

Jarvis v The Queen (1993) 20 WAR 201

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Medcraft v R [1982] WAR 33

Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316

R v Adams and Ross [1965] Qd R 255

R v Byczko (No 1) (1977) 16 SASR 506

R v E (A Child) (1993) 66 A Crim R 14

R v Marchesano (1992) 61 A Crim R 372

Wagenaar v The Queen [2000] WASCA 325

1 KENNEDY J: I have had the benefit of reading in draft the reasons to be published by Wallwork J. I agree with his Honour that the directions of the learned trial Judge as to the use which the jury could make of lies were inadequate, that leave to appeal should be granted and the appeal allowed.

2 In Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193, the majority of the High Court, comprising Dean, Dawson and Gaudron JJ, at 208, said:

"Ordinarily, the telling of a lie will merely affect the credit of the witness who tells it. A lie told by an accused may go further and, in limited circumstances, amount to conduct which is inconsistent with innocence, and amount therefore to an implied admission of guilt. In this way the telling of a lie may constitute evidence."

"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 realization 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' (Reg v Tripodi [1961] VicRp 30; [1961] VR 186 at 193)."

"A lie can constitute an admission against interest only if it is concerned with some circumstance or event connected with the offence (ie, it relates to a material issue) and if it was told by the accused in circumstances in which the explanation for the lie is that he knew that the truth would implicate him in the offence. Thus, in any case where a lie is relied upon to prove guilt, the lie should be precisely identified, as should the circumstances and events that are said to indicate that it constitutes an admission against interest. And the jury should be instructed that they may take the lie into account only if they are satisfied, having regard to those circumstances and events, that it reveals a knowledge of the offence or some aspect of it and that it was told because the accused knew that the truth of the matter about which he lied would implicate him in the offence, or, as was said in Reg v Lucas (Ruth), because of, 'a realization of guilt and a fear of the truth'.

Moreover, the jury should be instructed that there may be reasons for the telling of a lie apart from the realization of guilt. A lie may be told out of panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the offence. The jury should be told that, if they accept that a reason of that kind as the explanation for the lie, they cannot regard it as an admission. It should be recognised that there is risk that, if the jury are invited to consider a lie told by an accused, they will reason that he lied simply because he is guilty unless they are appropriately instructed with respect to these matters. And in many cases where there appears to be a departure from the truth it may not be possible to say that a deliberate lie has been told. The accused may be confused, he may not recollect something which, upon his memory being jolted in cross-examination, he subsequently does recollect." (footnotes omitted)

5 In Zoneff v The Queen (2000) 200 CLR 234, the High Court returned to the subject of lies as evidence of guilt. In their joint judgment, Gleeson CJ, Gaudron, Gummow and Callinan JJ said, at 244:

"[15] The meaning of the phrase 'consciousness of guilt', the risk that its use by the trial judge may itself suggest guilt, which circumstances call for the giving of an Edwards_-_type direction, and the difficulty in distinguishing between lies going to credibility and those indicating guilt have been matters of some controversy. The Court of Appeal in Victoria in a series of cases, R v Morgan, R v Renzella, R v Laz, R v Erdei, R v Cervelli and R v Konstandopoulos has sought to grapple with the problem. But as Hayne JA in Morgan suggests, rigid prescriptive rules as to when and in what precise terms an Edwards - type direction should be given cannot be comprehensively stated.

[16] There may be cases in which the risk of misunderstanding on the part of a jury as to the use to which they may put lies might be such that a judge should give an Edwards - type direction notwithstanding that the prosecutor has not put that a lie has been told out of consciousness of guilt. As a general rule, however, an Edwards - type direction should only be given if the prosecution contend that a lie is evidence of guilt, in the sense that it was told because, in the language of Deane, Dawson and Gaudron JJ in Edwards, 'the accused knew that the truth...would implicate him in [the commission of] the offence' and if, in fact, the lie in question is capable of bearing that character (The words in italics are ours and, for the sake of clarity, should be included in the statement of principle_)_.

[17] Moreover, if there is a risk of confusion or doubt as to the way in which the prosecution puts its case, the trial judge should inquire of the prosecution whether it contends that lies may constitute evidence of consciousness of guilt and, if so, he or she should require identification of the lie or lies at issue and the basis on which they are said to be capable of implicating the accused in the commission of the offence charged." (footnotes omitted)

6 The learned trial Judge directed the jury that there were four areas of evidence where they might find that there was a lie. The first area identified by his Honour centred on a single paragraph in an affidavit sworn by the applicant in support of an application for bail, in which he referred to his relationship with three women, two of whom were complainants in the proceedings. He explained that, under Aboriginal custom, by which he lived his life, he was obliged to maintain the relationships which related to his Aboriginality and customary way of life and that he was obliged to enforce the custom. In the course of his evidence at the trial, however, he denied that he had ever said that his relationship with the three women was anything to do with his Aboriginality and the customs of Aboriginal people. His Honour instructed the jury that if they came to the conclusion that the applicant had told a lie in this regard, then they may be entitled to find that this lie was told to distance himself from the assertions in the affidavit, "which might put him in a different light". His Honour then told them that this applied to the first 11 counts in the indictment and not to the last two counts. He went on to say that "the same" applied to Claudette Bolton's evidence where she said, and the accused denied, that he was suicidal. This was also said to relate only to the first 11 counts. The jury were given no explanation as to the basis upon which this conflict was being put forward as demonstrating the applicant's realisation or consciousness of his guilt on the 11 counts. Note also the provisions of s 25 of the Bail Act 1982.

7 In relation to the 12th count, which charged damage to a police recording device, the accused denied that Denise Oliver told him to "piss off" when the evidence of Detective Pitman showed that she did. His Honour told the jury:

"If you find that to be a lie, that is the accused denying that Denise Oliver told him to piss off, this is relevant because it's evidence as to whether Denise Oliver told him to piss off, this is relevant because it's evidence as to whether Denise Oliver was acting under his direction or not and that will become very important when I tell you about how the accused man, although he didn't put the device into the washing machine, can be charged with it as a principal offender because he counselled or procured it."

The jury were given no further assistance as to how this might demonstrate the applicant's realisation or consciousness of guilt.

8 Count 13 alleged that the applicant and Valerie Patricia Dann conspired together and with Denise Oliver to cause one Bolton to be charged with the offence of sexual penetration, then knowing that he was innocent of the alleged offence and not believing that he was guilty of the alleged offence. In relation to that count, the learned trial Judge said that the applicant's defence was that he made no agreement with Denise Oliver and Valerie Dann, which was an essential element of the count. The applicant, his Honour said, gave evidence that he had given the statement off his own bat and out of the blue, and not in consequence of any agreement made by the three of them. That, his Honour said, if a lie, and if the jury found it to be a lie and were satisfied that it had been told deliberately, and all the other rules that he had told them about, would be the very essence of a conspiracy. Once again the jury were left with very little guidance.

9 His Honour then went on to point out that the applicant had denied everything the two complainants had said that implicated him in all 13 counts and that there was not a single element of any one of the 13 charges as given in evidence by Denise Oliver and Cheryl Franklin that the accused admitted - not a "single solitary fact". He went on to tell the jury, "Now, if you find after hearing his evidence and on looking at all of

the other evidence that that blanket denial of everything is a lie, then that, too, may be used by you in the circumstances and in compliance with the rules that I have told you about". It appears that this was not in fact an argument which was put forward by the prosecution and his Honour made no enquiry of the prosecution as to the view which it took as to the applicant's denials. Nor did he give any further guidance as to the blanket denial being a lie.

10 Considerable care is essential in directing a jury as to the reliance which they may place on lies. As was said in Zoneff v The Queen, at 244, there is a risk that the use of the phrase "consciousness of guilt" may itself suggest guilt. While recognising the observation in Zoneff v The Queen that rigid, prescriptive rules as to when and in what precise terms an Edwards-type direction should be given cannot be comprehensively stated, such a direction should not be given where, at most, the suggested lie relates to credibility only.

11 His Honour then proceeded to remind the jury that the lie had to relate to a material issue, that is, a fact or circumstance "connected" with the offence and it had to be clearly shown to be a lie by evidence "other than that to be corroborated". Having regard to Zoneff v The Queen, his Honour's direction should have included a reference to the need for the jury to be satisfied that the lie was told because the accused knew that the truth would implicate him in the commission of the offence.

12 His Honour did remind the jury that there were other reasons why people tell lies than their consciousness of guilt and said that the mere fact that they might find that the accused had lied " - it doesn't mean lies equals guilt, all right" and that what it meant in the case of any relevant lie that they might find the accused had told was that it could be used "in your chain of reasoning, that is to say, it might go into the chain of reasoning that leads to an inference that you might conclude".

13 It is, in my view, important for a trial Judge not merely to recite the rules governing the use of lies without directly linking them to the facts of the particular case. That was not, with respect, adequately done in this case.

14 In the circumstances, this appeal must be allowed.

15 WALLWORK J: On 12 April 2000 the applicant was convicted of 10 offences in an indictment which contained 13 counts. The charges were mostly of a sexual nature, involving sexual assaults and assaults relating to them. The applicant was found not guilty on the three remaining

counts. He now applies for leave to appeal against the convictions and the aggregate sentence which the learned Judge said was 13 years imprisonment. The applicant disputes that the sentences imposed amounted to an effective 13 years imprisonment. There were other grounds for leave to appeal against sentence.

16 With respect to the application to appeal against the convictions, ground 1 of the amended application was abandoned. Grounds 2 and 3 concerned the Judge's direction concerning the use the jury could make of alleged lies, which the Crown contended the accused had told.

17 I will deal with ground 3 of the grounds of appeal first, because in my view it is the most significant ground advanced by the applicant. It is that:

"The learned trial Judge erred in law in his directions to the jury as to the applicant's 'blanket denial' having regard to the applicant's plea of not guilty."

18 Before considering the ground in detail, I note that in the course of his summing up the learned trial Judge did not adequately warn the jury that they could not use their findings on other counts to assist them in determining whether the Crown had proved beyond reasonable doubt the particular count they were then considering. The only thing his Honour said about that aspect of the matter was that the Crown carried the burden of proof "in respect of every single one of these charges and it does not mean, where you have got a trial of more than one charge taking place at the one time, that the Crown - all the Crown has to do is, if you like, prove its case on one of the counts and therefore it follows like dominoes or a deck of cards that it must have proven its case on all the others. That does not follow. Thirteen times the Crown carries the burden of establishing its case beyond reasonable doubt."

19 His Honour came back to that question a little later on in his summing up when he said:

"Well, how do you then look at that burden of proof and apply the standard that I have told you about?

Well, I told you that you have got to do it thirteen times. Actually you have to - and that is correct because you have got to look at each of the thirteen counts, but every count on the indictment contains what lawyers call elements. They are the essential ingredients without which the particular charge that the Crown has chosen to bring against the accused person - it is the Crown that chooses the charge."

20 His Honour told the jury that the Crown had to establish every one of the elements on each charge beyond a reasonable doubt.

21 The question of any "flow-on effect" of the jury's findings on other counts to the one they were then considering, became significant in this trial because of the direction which his Honour gave concerning lies.

22 When his Honour came to the question of alleged lies, he commenced by telling the jury that the law had developed very special rules to aid juries in the use of lies, if they found any lies to have been told. He told the jury that a lie must relate to a material issue and that the jury could only take any lie into account, if it was satisfied that the lie revealed a knowledge of the offence or some aspect of it "and it is because of a realisation of guilt or fear of the truth that the lie was told and that is a matter for you to decide, you have got to decide that. I am bound to tell you that there may be reasons for a lie other than consciousness of guilt such as panic ... ." His Honour directed further on that question, and then said:

"It is my task to try and identify which lies may be open on the evidence and which then may be relevant to the offence or offences in question. There has been a lot of talk about lies in this case and what I have done is to analyse the evidence and there are four areas of evidence where you might find that there is a lie."

23 His Honour then dealt with the four matters to which he had referred and in the course of that direction said:

"Finally - sorry, not finally - second last in relation to this issue, the accused man has denied everything the two women have said that implicates him in all 13 charges. That is, there is not a single element of any one of the 13 charges as given in evidence by DO and CF that the accused admits; not a single solitary fact. It is what is sometimes called a blanket denial. Now, if you find after hearing his evidence and on looking at all of the other evidence that that blanket denial of everything is a lie then that, too, may be used by you in the circumstances and in compliance with the rules that I have told you about and please remember those rules which are the evidence has to reveal a deliberate lie, not an error or an untruth arising from the confusion of the accused or told inadvertently. The lie has to relate to a material issue, that is, a fact or circumstance connected with the offence. It has got to be clearly shown to be a lie by evidence other than that to be corroborated and you can only take the lie into account if you are satisfied it reveals a knowledge of the offence or some aspect of it and because of a realisation of guilt or a fear of the truth which is a matter for you to determine."

24 His Honour then went on to tell the jury that they might remember that there were other reasons that people tell lies other than a consciousness of guilt and that the mere fact that the jury might find that the accused had lied did not mean lies equals guilt. His Honour said:

"What it means, in the case of any relevant lie you might find he has told, that you can use that factor in your chain of reasoning, that is to say, it might go into the chain of reasoning that leads to an inference that you might conclude. But lies do not equal guilt because even in one scenario you might find - and I think Mr Hanbury put it this way: you might find that you do not accept anything the accused has told you. That is not an end to the matter at all because you have then got to go through each of the 13 counts and satisfy yourselves on the evidence whether the Crown has established its case beyond reasonable doubt."

25 After the learned Judge had finished his direction, defence counsel raised with him the fact that he had mentioned "in the context of lies something about a blanket denial ... ." During the discussion counsel said:

"Well, your Honour said that he denies - something about a solitary fact, a single solitary fact, or something that your Honour had said about - he denied everything that the two women had said in respect of the 13 counts, and then you went on and referred to it as a blanket denial and then you linked that with the question of lies. The reason that it troubles me is because his plea of not guilty remains, notwithstanding the fact that the jury might find that his denial is a lie. If you juxtapose lie and not guilty, his plea, then the jury might become confused...but your Honour with respect was putting it as though the plea of not guilty was a blanket denial...what your Honour said was it is a blanket denial and then your Honour linked that to the question of lies and your Honour said that if you find that in effect that blanket denial, lies, then you may take it into account." (AB740-1)

26 The learned Judge did not redirect on that question. The question raised by ground 3 is whether or not the learned Judge erred in that part of his direction.

27 The first problem with the direction is where his Honour said:

"Now, if you find after hearing his evidence and on looking at all of the other evidence that that blanket denial of everything is a lie then that, too, may be used by you in the circumstances and in compliance with the rules that I have told you about..." (706)

28 The learned Judge did not further direct the jury as to how a finding by the jury "that that blanket denial of everything is a lie" might be used with respect to any of the individual counts.

29 In my opinion the direction on lies was in error and departed from the ruling by Gleeson CJ, Gaudron, Gummow and Callinin JJ when they said in Zonev v The Queen (2000) 74 ALJR 895 at p 900, par 17:

"Moreover, if there is a risk of confusion or doubt as to the way in which the prosecution puts its case, the trial Judge should enquire of the prosecution whether it contends that lies may constitute evidence of consciousness of guilt and, if so, he or she should require identification of the lie or lies in issue and the basis on which they are said to be capable of implicating the accused in the commission of the offence charged."

"It follows in our opinion that it was unnecessary, indeed undesirable, that a direction of the kind with which Edwards was concerned be given in the circumstances of this case. In order to give it in this case the trial Judge would have to decide which of the appellants' answers were or were not capable of being regarded as lies indicative of a consciousness of guilt. Such a direction here could have had the effect of raising an issue or issues upon which the parties were not joined, and of highlighting issues of credibility so as to give them an undeserved prominence in the jury's mind to the prejudice of the appellant."

"The only remaining question is whether, because the Crown case was a strong case, there has been no substantial miscarriage of justice. On this matter we find ourselves in agreement with Olsson J that there should be a retrial. In a case of false pretences there is obviously much scope for misunderstanding by a jury in respect to the issues of dishonesty. We cannot be satisfied that a relevant misunderstanding may not have infected the minds of the jury on the basis of the direction which was given. We would allow the appeal ..."

32 In my opinion the direction in this case concerning the blanket denial, which has been set out above, was not in accord with the reasoning of the High Court in Zonev (supra) or Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193. It was decided in both decisions that where the question of a "consciousness of guilt" is raised by the Crown, it is incumbent on the trial Judge both to identify the lies about which he was speaking and then to give a full direction concerning that matter.

33 There was an added problem with the direction in the present case, and that is that the jury may have understood that the blanket denial of the prosecution evidence, including the applicant's pleas of not guilty, could be used by them generally in their deliberations on all the charges, ten of which the jury ultimately found had been proved beyond a reasonable doubt.

34 In my view it is not possible to say that any of the alleged lies which the jury may have found to have been told by the applicant were used by them in the correct manner in accord with the reasoning in Edwards (supra) and Zonev (supra). The convictions should in my opinion be set aside and a new trial ordered on the 10 relevant counts.

35 It is unnecessary to consider the two remaining grounds of appeal which concern the learned Judge's directions to the jury as to the meaning of consent and his Honour's reference to certain evidence as corroborating other evidence. Suffice it to say that I cannot see any error on his Honour's part with respect to those matters.

36 It is also unnecessary to consider the question of the application for leave to appeal against sentence as the convictions, in my opinion, should be set aside and the sentences quashed.

37 I would grant leave to appeal, allow the appeal against the convictions, set aside the convictions and order a new trial on the ten counts on which convictions were recorded.

38 PIDGEON AUJ : I agree with the reasons of Wallwork J in respect of the ground relating to lies. The applicant denied everything which the two women had said implicating the applicant on each of the charges. This would be a proper basis to submit that his evidence was incredible and in that sense, it is a matter to be considered in the context of credibility. It would not be open in those circumstances to say that the jury might consider that the accused in making such an extensive denial must have been telling lies and if they so find that, that it would be an implied admission of guilt.

39 This was a case being proved by direct evidence and the jury were required to be satisfied that the evidence of the complainants established the respective charges. If the accused were disbelieved, the jury would still be required to be satisfied that the evidence of the complainant was correct in respect of the charge being considered.

Winmar v The Queen [2001] WASCA 239

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Judgment (71 paragraphs)

Winmar v The Queen [2001] WASCA 239 (14 August 2001)

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Cases Cited (8)