Zoneff v The Queen

Zoneff v The Queen - [2000] HCA 28 - HCA 2000 case summary — Zoe

[6]

The appellant was tried in the District Court on an information containing seven counts, four of which charged him with false pretences and three with fraudulent conversion. The jury returned a verdict of not guilty on the first count and found him guilty of the other six. The first charge was an alternative charge to one of fraudulent conversion.
The prosecution case was that the appellant took advantage of five people. One of them, Ms Sneath, had been referred to in the first and second counts. The other four were Mr McKinnon, Mr and Mrs Dik and Ms Phillips. All met the appellant when they went to purchase furniture from the Le Cornu Furniture Centre where he worked as a salesperson. The prosecution alleged that the appellant ingratiated himself with these people in order to obtain money from them by false pretences.
Ms Sneath and Mr McKinnon said that the appellant persuaded them to pay the amount outstanding on their purchases to him, so that they could obtain the benefit of bonus points to which he was entitled as part of his conditions of employment with Le Cornu. The appellant said that an additional discount of $720 would be available if they were to send the money they owed Le Cornu directly to him. Ms Sneath's and Mr McKinnon's evidence was that they agreed to the appellant's proposal, believing that he was acting in his capacity as an employee of Le Cornu and that he had authority to do what he claimed. Ms Sneath said that she paid $4,068 into the appellant's account with a building society, being the amount she and Mr McKinnon owed Le Cornu, less the discount the appellant had offered them. The evidence also established that the $4,068 deposited by Ms Sneath in the appellant's account was used by him to pay his personal debts.
The other five charges were not alleged in the alternative. Mr and Mrs Dik were the victims of four of these. After they visited Le Cornu in June 1992 to buy furniture for a house they were building the appellant kept in contact with them. He told them of a substantial discount he could obtain if they paid their money directly to him. Their evidence was that they agreed with this suggestion and that, in the course of his telephone conversations with them, he also suggested that the three enter into a business venture to build two home units as an investment. An arrangement was accordingly made. Mr and Mrs Dik went with the appellant to inspect land at Brooklyn Park which was to be the site of the units. Mr and Mrs Dik then borrowed $84,000 on the security of their own home. Part of the loan was used to extinguish an existing mortgage. Their evidence was that the balance was used to pay half the cost of the land and the cost of the foundations for the units. Two of the cheques were the subject of the fraudulent conversion charges on the third and fourth counts. The evidence disclosed that again the appellant used the money for his own purposes to satisfy some personal debts.
The fifth and sixth counts were charges of false pretences. The evidence was that after Mr and Mrs Dik had given the appellant the funds referred to in the third and fourth counts for the land and foundations, there were discussions about the building plans, in the course of which the appellant told them of problems he was having in relation to his finances: that one of his bank accounts had been frozen because of some other financial difficulties, and that this was preventing him from obtaining access to his half of the money required for their joint venture. The prosecution evidence was that the appellant sought and obtained from Mr and Mrs Dik a further $16,600 to enable him to gain access to this bank account. The appellant again spoke to Mr and Mrs Dik of continuing difficulties with his account. He sought and obtained a further sum of $6,440 from them. This was the amount referred to in the sixth count. There was evidence at the trial that the appellant had no bank account at the bank that he identified as his bank. There was a further false pretence alleged, that until funds were released to him the appellant would be unable to continue with the plan to build the units.
The remaining count in the information named Ms Phillips as the victim. She first met the appellant at Le Cornu in 1993. She decided to buy furniture worth some $7,700. Her evidence was that the appellant raised with her the possibility of a discount by allowing her access to his entitlements to bonus points as an employee of Le Cornu. Ms Phillips was reluctant to agree. The appellant said that she could receive a discount of $720 on the basis of his entitlements. The points to which he was entitled were in fact worth no more than about $42 and not anything like $720. Ms Phillips gave the appellant a cheque for $5,210 in response to his representations to her. Subsequently the appellant asked Ms Phillips to lend him some money. The jury was told that Ms Phillips then lent the appellant a substantial sum on the promise of high interest, but that she had not been repaid any of it. This last transaction was not the subject of any charge.
In evidence at the trial at which he represented himself, the appellant denied any false pretence. He claimed that the complainants were aware of the personal purpose to which their money was to be applied. He insisted that he had no intention of fraudulently denying to them the benefit of the money they provided to him. Throughout, he maintained, he held a bona fide belief that he was entitled to deal with the money in the way in which he did. In the cases of Ms Sneath, Mr McKinnon and Ms Phillips, the cheques they gave him, were, he swore, to be applied to assist with the settlement of a contract for the purchase of units by the appellant from his father. As compensation for the making of the loan of their money he intended to provide them with a discount on their purchases at Le Cornu and to assume liability for the balance of their accounts. The appellant emphasised that these people did not require their furniture immediately, so that by lending money, they would obtain furniture, when required, at a reduced price.
As for Mr and Mrs Dik, he accepted that they had entered into a partnership with him to purchase land at Brooklyn Park and to build units upon it. But he said that the money they gave him was also to be used to purchase units from his father.
The appellant conducted his own defence at the trial. The Crown Prosecutor's cross-examination of him included the following:

[49]

In this Court the appellant puts his case in the alternative: that the trial judge should not have embarked in his summing up upon the topic of possible lies at all; or, if his Honour was entitled or bound to give directions on the topic, he should have given them in accordance with the judgment of this Court in Edwards v The Queen.
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[4], R v Renzella[5], R v Laz[6], R v Erdei[7], R v Cervelli[8] and R v Konstandopoulos[9] has sought to grapple with the problems. But as Hayne JA in Morgan[10] suggests, rigid prescriptive rules as to when and in what precise terms an Edwards-type direction should be given cannot be comprehensively stated.
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 contends 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[11], "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.)
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 in issue and the basis on which they are said to be capable of implicating the accused in the commission of the offence charged[12].
This was an unusual case. The prosecutor did not, during cross-examination, in terms, or in our view, by implication, suggest that any answer given was a lie, told out of consciousness of guilt (a phrase we use for convenience). Moreover, as the prosecutor did not address the jury, no such suggestion was made at any later stage of the trial.
In this Court the respondent prosecutor reiterates that no reliance was, in the courts below, or is here, placed upon the answers given to found a submission that the appellant lied, out of a consciousness of guilt.
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 had to decide which of the appellant's 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.
Because the Crown did not put, either in cross-examination or in any submission at the trial that there was any material capable of being regarded as a lie stemming from a consciousness of guilt, the direction that the majority in the Court of Criminal Appeal quoted and which is set out above, should not have been given.
The trial judge was evidently concerned that, having regard to some of the cross-examination, there was a serious risk that the jury might engage in an impermissible process of reasoning in relation to the matter of lies. Unfortunately, his response was to give a direction which, as Olsson J observed, raised the topic and then left it largely up in the air.
A direction which might have appropriately been given and which would have allayed any concerns which the trial judge may have had, in this unusual case, in which the issues may not have been defined as they might have been had the prosecutor made a speech to the jury, is one in these terms:

[51]

A direction in such terms may well be adaptable to other cases in which there is a risk of a misunderstanding about the significance of possible lies even though the prosecution has not suggested that the accused told certain lies because he or she knew the truth would implicate him or her in the commission of the offence.
For the trial judge here to refer to, indeed raise, on his own initiative in the way in which his Honour did, the possibility of a consciousness of guilt without any identification of relevant answers, and without any further explanation, was to invite the jury to infer that the alleged lies might be indicative of a consciousness of guilt, a proposition for which the prosecution has not contended, and does not now contend.
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 with 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 and in place of the orders made by the Court of Criminal Appeal order that the appeal to that Court be allowed, the convictions on counts 2 - 7 in the Information be quashed and that there be a retrial.
KIRBY J. Lies are the subject of this appeal. Lies and how (if at all) a judge presiding at a jury trial should instruct the jury concerning the way they may use a conclusion that the accused has lied.
Lies, or suggested lies, are no strangers to criminal trials. The very nature of such proceedings makes it common, particularly where the accused gives evidence, that claims and counterclaims about lies will arise for the jury's consideration[13]. This has long been so. But the subject of lies has recently acquired a certain "mystique" in the law[14]. Now the case books, in this country[15] and overseas[16] are full of suggestions that trials have miscarried for erroneous or inadequate jury directions about lies. Academic writers and legal practitioners have found the topic a fertile one[17]. Many a lengthy trial has ultimately failed because of perceived errors in judicial directions about lies[18].
As is its wont, the law has tended to complicate needlessly a subject that calls upon the jury's reserves of common sense. This result sends appellate courts in search of responses. These may include the provision of guidelines or standard directions which will help render the judge's charge to the jury appeal-proof[19]. Or it may result in a conclusion that the law has become needlessly complex and that judicial directions should be simplified and confined to a minimum[20]. In some cases (such as the present), it requires an appellate court to consider "the proviso"[21] and to treat any "imperfections in the trial judge's directions"[22] as insubstantial when that court is convinced that no relevant miscarriage of justice has resulted.

[52]

Mr Ivan Zoneff ("the appellant") was convicted in the District Court of South Australia following a trial by jury. The jury found him guilty on six of seven counts of an information charging him with offences of false pretences and fraudulent conversion. On all but one of the counts, the verdict was by majority. The count on which he was found not guilty (count 1), was alternative to a count on which he was found guilty (count 2). So the effect of the verdicts was that the jury found the appellant guilty of an offence in respect of each of the dealings relied on. The total amount of money involved in the offences was about $73,000. The presiding judge (Lowrie DCJ), sentenced the appellant separately in respect of each of the counts on which he was convicted. The sentences totalled seven years and six months imprisonment. Because the offences had been committed whilst the appellant was on parole following earlier convictions and a sentence for similar offences[23], he was ordered to serve a total sentence of ten years nine months and 26 days imprisonment. A non-parole period of six years was fixed.
The appellant appealed against the convictions and sentence to the Court of Criminal Appeal of South Australia. That Court, by majority[24], dismissed the appeals against the convictions. It unanimously upheld the appeal against sentence. It reduced the appellant's total sentence[25]. By special leave, the appellant appeals to this Court against his convictions. The sole ground upon which special leave was granted concerns the point on which the Court of Criminal Appeal divided. The appellant complains about the direction given to the jury by the trial judge concerning lies. He asserts that the judge should have given a full direction in accordance with the principles set out in Edwards v The Queen[26].
The charges against the appellant had a common theme. Each related to representations alleged to have been made by the appellant to customers of Le Cornu Furniture Centre ("the centre") in suburban Adelaide where the appellant was then working as a salesman. According to the prosecution, the appellant ingratiated himself with customers, fostered their friendship, procured the payment to him of moneys, mostly for furniture ordered by them, and then betrayed their trust by dishonestly dealing with such moneys otherwise than as promised[27]. Relevantly, five customers were involved. To explain and justify the conclusions to which I come, different from the majority, it is necessary to set out in some detail the facts as disclosed in the evidence at trial. I regard the evidence as presenting a compelling, indeed overwhelming, case against the appellant.
The first two customers were Ms Sneath and Mr McKinnon (counts 1 and 2). The prosecution case was that the appellant had persuaded them to pay him an amount which was outstanding on their furniture purchases from the centre. The inducement was that they would thereby secure the benefit of certain bonus points to which he represented himself to be entitled as part of his employment conditions. It was alleged that the appellant offered an additional discount of $720 if the couple sent the money owing to the centre directly to him. Because they stated that they believed that the appellant was acting in his capacity as an employee and had authority to do as he suggested, Ms Sneath and Mr McKinnon went along with the proposal. The former paid $4,068 into the appellant's account with a building society. That was the sum in which she and Mr McKinnon were then indebted to the centre, less the discount which the appellant had offered. The evidence established that the sum deposited into the appellant's account was used by him to pay personal debts. Although the jury found the appellant not guilty of a charge of false pretences (first count)[28], it convicted him of the count of fraudulent conversion[29] in respect of the amount of $4,068 paid to him by Ms Sneath.
The remaining five charges were not expressed to be in the alternative. Four of them related to a second couple, Mr and Mrs Dik. They had purchased furniture from the centre in June 1992. Following their purchase, the appellant telephoned them from time to time. Eventually, he told them that they could secure a substantial discount if they paid their money to him, rather than to the centre. They agreed. In the course of subsequent telephone conversations, the appellant also proposed that they should together enter a business venture with him to build two home units. They went with the appellant to inspect land at Brooklyn Park in Adelaide. When they agreed to the appellant's proposal, they borrowed $84,000 by raising a mortgage over their home. Their understanding was that the funds (less an amount to discharge an existing mortgage) would be used to finance half the cost of the land at Brooklyn Park and the initial building costs for the home units. Two of the cheques paid to the appellant were the subject of the third and fourth counts in the information. The evidence called at the trial showed clearly that once the appellant had banked the cheques, he used the funds to pay personal debts.
Mr and Mrs Dik gave further evidence that following these payments, the appellant informed them of problems that he was having in raising the finance necessary to make his contribution to the joint venture. He told them that his bank account had been frozen. He sought and obtained from them a further $16,600 which he represented as necessary to free up his bank account. Soon afterwards, the appellant told Mr and Mrs Dik of continuing difficulties he was having with his bank. He sought and obtained from them a further sum of $6,440 which they paid by cheque. These payments were the subjects of the fifth and sixth counts. The gist of the offences alleged was the representation made by the appellant to Mr and Mrs Dik at a time when there was no account at the bank which he had identified at which his funds were said to have been frozen. According to the prosecution case at trial, the appellant was never in a financial position to fulfil his part in the enterprise into which he had induced Mr and Mrs Dik to enter.
The seventh count related to an offence of false pretences allegedly involving Ms Doreen Phillips. She too had been a customer of the centre. In 1993 she had purchased a large amount of furniture worth $7,700. In her case, the appellant raised the subject of her obtaining a discount by taking advantage of his employee bonus points. At first Ms Phillips was disinclined to agree to this unconventional proposal. However, the appellant called on her at her home. He proposed that she could have a discount of $720 because of the bonus points he then had in a staff incentive scheme operated by the centre. The prosecution called evidence that the points available to the appellant under the scheme were worth approximately $42. This was well short of the amount represented. Ms Phillips gave the appellant a cheque for $5,210, accepting his representation that he was authorised to receive the cheque and to provide her with the discount stated. The evidence demonstrated that he was not. Subsequently, the appellant made further contact with Ms Phillips and asked to borrow money from her. It seems that she agreed and lent him a sum which was not repaid. However, this was not the subject of a count in the information.
The appellant elected to represent himself at his trial. He gave evidence. He alleged that the customers were aware of the personal purposes to which he intended to put the moneys that they paid him. He denied any fraudulent intention. He claimed a genuine and bona fide belief that he was entitled to deal with the moneys paid to him in the way that he did. In essence, he contended that the customers, who did not require their furniture immediately, made loans to him to assist him in the eventual purchase from his father of home units. In return for the loan of their moneys, the appellant said he would take over the customers' liability for the balance of their accounts with the centre, provide them with a discount and ensure that when they required it, they would receive their furniture at a reduced price. As for the special arrangement with Mr and Mrs Dik, the appellant claimed that they had entered into a partnership with him and that they knew that the money they gave him would be used to assist in purchasing the home units from his father.
The prosecution case against the appellant had four essential elements. The first was the inherent unlikelihood and irregularity of the representations made by the appellant to the customers of his employer. The second was the modus operandi of the appellant which portrayed marked similarities in the people from whom he chose to borrow. The third were the representations which the appellant made that he had authority to act as he did and that he would expend the moneys received in particular ways. The fourth was the representation that the appellant could procure discounts and, in the case of Ms Phillips, the provision to her of bonus points far beyond those that stood to his credit in the staff incentive scheme. Whatever differences existed between the assertions of the several customers, with their recurring themes, and the denials and claims of the appellant, the prosecution case rested substantially on objective facts. The appellant had no authority to deal with customers of his employer in the ways he did when he procured the payments from them. The bank records showed that those funds were expended to reduce personal debts. The appellant's bank records proved that at the time each of the payments was obtained, the appellant had very little money to his credit. Within days of their deposit the funds were largely dissipated. They were typically withdrawn in a series of relatively small amounts, often from a number of different branches on the same day.

[104]

There are a number of considerations which apply to a review by this Court of judicial directions to a jury. I do not attempt an exhaustive list. Some of the considerations are relevant generally. Some of them are particularly applicable to directions concerning the subject of lies.
First, the overriding principle is that the trial judge must ensure, to the best of his or her ability, that the accused secures a fair trial, held in accordance with law[40]. This is why it is always important to consider the judicial directions complained about in the context of the issues that were fought at the trial, the addresses that have preceded it and the requests (if any) for redirection. There could be few developments more destructive to the character of a jury trial, as it has been conducted for centuries, than a minute and pernickety attention to the words of the judge's charge, divorced from their context and expressed purposes. Legal accuracy is demanded. But in most cases, particular verbal formulae are not[41]. The judge is speaking to a jury. The regurgitation of a fixed form of words, read out to render the directions appeal-proof, would significantly alter the character of a jury trial. It would distort effective oral communication with the jury.
Secondly, it is unnecessary for a judge to tell a jury more than they must know to guide them to the decision on the issues in the case which are legally relevant[42]. Because of the possible significance of some general issues and their recurring importance in criminal trials and appeals, it is sometimes suggested that good practice will oblige the judge to lend the authority of the judicial office to appropriate directions on such matters[43]. Obviously, directions on the onus and standard of proof and on the respective functions of the jury, the judge and the parties or their advocates must be given. Beyond that there is often room for difference of opinion as to what may be left to judicial discretion having regard to the circumstances of the particular case and the desirability of avoiding needless appeals[44]. Even where a direction is required, the appellate court is concerned with its substantial accuracy; not with its elegance or verbal felicity as such.
Thirdly, when it comes to lies, or alleged or suspected lies, there is a general consideration which will ordinarily need to be taken into account by a judge in deciding whether directions of some kind are necessary to discharge the judge's primary function. I refer to the concern expressed in the well known decision of the Privy Council in Broadhurst v The Queen[45], delivered by Lord Devlin:

[106]

Although this passage has sometimes been criticised as exhibiting "circular reasoning"[46], its essential point displays a great deal of common sense. The jurors are discharging functions that are onerous, formal and commonly unfamiliar to them. It would be relatively easy for them to fall into the error of attaching excessive or irrelevant significance to a conclusion that the accused (or an important witness in the accused's case) has told a lie. A warning of the Broadhurst kind, given with judicial authority, might be a healthy corrective to this kind of reasoning. Its general character and practical wisdom are precisely the kind of assistance which a judge might be expected to give to the jury where the suggestion of lying has been made by questioning or by submissions. I believe that this is what this Court meant in Edwards when the majority stated that "the jury should be instructed that there may be reasons for the telling of a lie apart from the realization of guilt" and should be informed what those reasons are[47].
Fourthly, legal analysis has gone beyond the foregoing generalities. Leaving aside irrelevant or inconsequential lies, a distinction has been drawn between so-called "credibility lies" and "probative lies"[48]. The former are said to be those which, according to their content, affect the credibility of the accused's evidence and thus the weight which the jury may give to other testimony of the accused. In this sense, a conclusion that the accused has lied upon one matter, even peripheral to the offence charged, may make the jury scrutinise with more care (perhaps scepticism) other testimony given by the accused. It might, in this way, contribute indirectly to the rejection of the accused's version of critical events and the acceptance of that propounded by the prosecution.
Probative lies, on the other hand, are those "which naturally indicate guilt ... a hard test to satisfy"[49]. This is a "hard test" precisely because it is rare that a lie about a particular matter will be so crucial as, of itself, if proved, to establish directly guilt beyond reasonable doubt of a criminal offence. It could happen if, for example, the lie related to an object indisputably linked to the offence. Take a handkerchief with bloodstains proved by DNA evidence to be that of the victim but falsely attributed by the accused to a nosebleed. It is testimony of this kind that has been explained as evidencing a "consciousness of guilt"[50]. It is said to be such a lie because the accused tells it knowing that telling the truth would necessarily, and without more, establish guilt of the offence charged.
This explanation (and the phrase which it has engendered) can probably be traced to early psychological suggestions, picked up in the writings of Wigmore, that the commission of a crime somehow leaves "mental traces" on the criminal which show themselves just as surely as "indelible traces of blood, wounds or rent clothing, which point back to the deed as done by him"[51]. According to this psychological theory, the "traces" will ultimately find their outlet in the criminal's conduct. They will permit a jury to conclude that the accused is guilty of the offence because it elicits the manifestation of such "traces". They are thus equivalent to a confession or admission of guilt. There are illustrations of this theory in literature from Shakespeare[52] to Dostoyevsky[53].
The process of reasoning that is postulated in the notion of "consciousness of guilt" is well explained by Windeyer J in Woon v The Queen[54]. His Honour there drew attention to an obvious defect in the theory, namely that some evidence propounded to amount to probative lies (because manifesting a suggested "consciousness of guilt") may prove no more than that the accused had some connection with the wrong-doing but one which fell far short of demonstration of guilt of "the crime alleged, in manner and form alleged"[55]. Thus in the case of the blood-stained handkerchief it might have been handed to the accused by a family member or lover whom he or she wished to protect. In Woon, Kitto J unconsciously disclosed the source of this theory by using, as though they were interchangeable, the phrases "consciousness" of guilt and "guilty conscience"[56]. Other authors have pointed to additional flaws in the theory. Some offenders, undoubtedly conscious of their guilt, may suffer from no feelings of guilt whatever[57]. The scientific underpinning of the notion of "consciousness of guilt" seems highly dubious, to say the least.
Recently, in R v White[58] the Supreme Court of Canada expressed a view about "consciousness of guilt evidence", with which I agree. It said that the "label is somewhat misleading and its use should be discouraged". In its place that Court has proposed[59] what it describes as a more "general description" using "more neutral language" such as "evidence of post-offence conduct". At least two considerations support this change. First, it adopts an objective classification. It concentrates on the significance of such conduct (including lies). It postulates no necessary psychological well-springs ("mental traces") for lies. It merely measures any suggested lies against other evidence of the accused's involvement in the crime. Secondly, as the Canadian court points out, the words "consciousness of guilt" suggest a conclusion about the conduct in question which tends to undermine the presumption of innocence[60]. The expression may prejudice the accused in the eyes of the jury. This is the "circularity" to which reference has earlier been made. It should be avoided in any direction about the use that may be made of a juror's belief that the accused has lied in or out of court. That is the law in Canada. It should be accepted as the law in Australia.

[107]

The phrase "consciousness of guilt" is also extremely opaque. It is difficult for those trained in the law to keep clearly in mind the distinction between evidence going to "credibility" (on the one hand) and evidence going to "consciousness of guilt" (on the other). This brings me to a consideration that goes beyond mere nomenclature.
Instructions to a jury should be comprehensible. They should avoid the unrealistic imposition on a jury of over-subtle distinctions and the imposition on judges of a duty to give directions that may actually be counter-productive to the end sought. Where matters are tried by jury, our legal system operates on an assumption that jurors will obey the judge's directions concerning matters of law and other matters upon which the judge has authority to speak. It is realised that sometimes jurors are likely to be "dumbfounded" by judicial statements about the law[61]. Judges probably accept that there is an element of sophistry in the presumption that juries always follow their instructions. But the presumption "is a pragmatic one, rooted less in the absolute certitude that the presumption is true than in the belief that it represents a reasonable practical accommodation of the interests of the state and the defendant"[62].
Because of legal constraints and longstanding conventions of secrecy in juror deliberations, there has, until recently, been little empirical research about the operation of judicial instructions upon the decision-making of actual jurors. In the United States, such investigations of the realities of jury deliberations[63] indicate the close attention which jurors typically pay to what the judge says; their earnest endeavour to perform their functions as they take to be expected of them[64]; the relatively low rate of comprehension of concepts which lawyers assume to be central to the performance of their duties[65]; and their lack of comprehension of subtle directions requiring conditional acceptance of evidence for one but not another purpose[66].
The law presumes that triers of fact are able to disregard the prejudicial aspects of testimony and adjust appropriately the weight to be attached to such evidence on the basis of its "probative value"[67]. However, such empirical studies as have been performed on jurors' abilities to follow judicial instructions, and to divide and sanitise their minds concerning impermissible uses of evidence, have yielded results which are substantially consistent. They cast doubt on the assumption that jurors can act in this way[68]. Indeed, there is some empirical evidence which suggests that instruction about such matters will sometimes be counter-productive. The purpose may be to require a mental distinction to be drawn between the use of evidence for permissible, and the rejection of the same evidence for impermissible, purposes. Yet the result of the direction may be to underline in the jury's mind the significance of the issue, precisely because of the judge's attention to it[69]. Lengthy directions about lies run the risk of emphasising the lies and their importance.
The foregoing do not represent reasons for overthrowing the strictures in the case law concerning directions to juries about lies or any other topic. At least at this stage of our knowledge about such matters, it is inappropriate to cast aside conventional wisdom that has endured so long. No party urged this Court to reconsider Edwards[70]; still less to question the basic presuppositions upon which the jury system operates in Australia. Nor do such considerations afford reasons to delete instructions to juries about the use of lies altogether. It is not the law in Australia that such matters can be safely left to the common sense of the jury and the role they have in deciding whether the accused is or is not guilty of the offence charged[71]. Whilst it is true that there are already several inbuilt protections for the accused, in the matter of evidence of lies, there are also special risks of illogical intuitive reasoning. It remains the judicial duty to caution the jury about the risks. Nevertheless, the foregoing considerations may suggest the need to avoid over-elaboration, unnecessary subtlety and instruction upon excessively sophisticated distinctions, unlikely to be understood.

[110]

Experienced trial judges have noted the difficulty presented by the Edwards principles[73], the practical difficulties which they present at trial and the "fertile ground for appeal" which they provide[74]. In the attempt to avoid appeals, prosecutors can be urged to restrain their eagerness to rely in their submissions on suggested lies on the part of the accused to prove guilt ("consciousness of guilt")[75]. But their questions may already have left a trail. Trial judges can require a prosecutor to identify, with precision, any lie or lies relied upon for that purpose[76]. But there remain at least two problems.
The first problem is that it cannot ultimately depend upon the intention or subjective purpose of the prosecutor as to whether or not a judicial direction to a jury about that subject of lies must be given. The criterion must be the way the jury might use the evidence not the subjective purpose of the prosecutor in eliciting the evidence or relying upon it. That is why, in Edwards, the majority judges referred to "where a lie is relied upon to prove guilt"[77]. That expression must be given meaning according to objective standards. There is a lot of loose talk in the cases about the prosecutor's intention. I regard that as irrelevant except so far as it helps to identify what the jury might have made of the questioning or evidence.
The present appeal illustrates this point clearly. Because the prosecutor did not address the jury, no propositions about the use of the evidence of lies were put to the jury by way of attempted persuasion. But in deciding what Edwards required of his charge to the jury, it remained for the judge to determine the way that the prosecutor had "relied upon" the questions suggesting that the appellant had lied.
The second problem is that of needlessly complex and elaborated instruction to the jury. Some judges may not be concerned about this. They will follow mechanically rules that will help to avoid a successful appeal[78]. But this is also an undesirable course. It shows an unjustifiable lack of confidence in the collective capacity of the jury "to identify unsafe and precarious paths of reasoning and avoid illogical conclusions", in their consideration of most disputed matters of fact[79].

[111]

If, in default of an address to the jury by the prosecutor in the present case, regard is to be had to the questions asked of the appellant at the trial, I do not believe that it can be said that those questions elicit answers that would prove directly the guilt of the appellant of any of the several charges which he faced. This is not to say that the lies were irrelevant to the question of his guilt of such charges. Or that they were not relied upon indirectly to prove that guilt, by demonstrating that the appellant was a person of dubious credibility when he protested his innocence and deposed to the consensual dealings with the customers from whom he procured moneys. If the classification of probative lies ("consciousness of guilt") and credibility lies ("credibility") is accepted as established by current legal authority in Australia, this was a case which clearly lay within the latter and not the former category. Here, there was no answer by the appellant which, of itself and without more, directly proved (if accepted by the jury) his guilt of one of the offences in the counts charged. Instead, as in most trials where an accused gives evidence, there was a suggestion of particular falsehoods. It remained for the jury to decide, in the light of all of the evidence, whether that suggestion was made good and, if it was, how the damaged credibility of the appellant affected the issues to be decided before verdicts could be returned upon the charges.
In the Court of Criminal Appeal[80] all of the judges agreed that a detailed direction in accordance with Edwards was not required by the evidence or the cross-examination of the appellant[81]. But then they divided. Prior J, for the majority, said that "the nature of the prosecutor's cross-examination of the appellant ... did not call for a lies direction"[82], that is to say any such direction. Olsson J, in his dissenting opinion, confined his conclusion to the fact that, having introduced "the possibility of lies constituting evidence of consciousness of guilt"[83] (although this had not been raised by the Crown) the judge was then bound to identify such lies and to give a "full direction" in accordance with Edwards[84].
This clash of opinion presents the first question which this Court has to decide. If it is made good there remains the second question involving the proviso.

[114]

There is nothing in Edwards which is inconsistent with the provision of a warning of this general kind. On the contrary, I regard Edwards[89] as wholly consistent with this course and I believe that it states the law to be followed in Australia.
Did the trial judge in this case do anything more than give a Broadhurst or Richens direction? The only persons who would understand the trial judge's direction in this case as going beyond such a general warning would be a lawyer or perhaps an historian of past psychological theories. Indeed, in my respectful view, only that sub-category of lawyer who was aware of the precious discourse about so-called "consciousness of guilt" would react to that obscure phrase. It is only the use of that phrase, near the beginning of the judge's charge, that gives rise to complaint. Yet for the ordinary citizen (and I venture to suggest even the most uninstructed lawyers) the expression "consciousness of guilt" would mean little if anything.
The judge told this jury that it was a phrase by which "we" (meaning judges and lawyers) describe lying by people who "are guilty and ... covering up"[90]. There was no further elaboration of the expression. It is only because it is a phrase of ancient legal, and dubious psychological, lineage that for lawyers it rings the bell of Edwards and the possible necessity for the elaborate instructions which Edwards requires. With all respect, this is not the way a judicial charge to a jury is to be read by this Court or any other appellate court. Rather it must be read by the presumed meaning that it would have to the jurors who were listening to it.
After the fleeting and unelaborated reference to this curious expression which "we" use, the judge went on to give a general warning about lies. In light of the prosecution questions of the appellant which I have collected and set out in these reasons, I regard the provision of such a warning as entirely consistent with authority. In the context of this particular trial it was desirable, if not essential, especially because the appellant was not legally represented.
At the end of his charge, the judge, after reminding the jury once again about the onus of proof and the necessity to remember what the appellant had said, returned to the differentiation between the assessment of any lies which they might find. He declared that they should decide "whether that goes to his credit, perhaps not to the question of his guilt"[91]. In fact, this was a direction unduly favourable to the accused. Evidence going to "credit" will sometimes indeed be relevant to the question of the accused's guilt, although indirectly. The central issue in any criminal trial is whether the prosecutor has proved the accused's guilt. Evidence which "goes to credit" will only be admitted if it is in some way relevant to that issue. It cannot be relevant if it is wholly unconnected with the central issue of the trial.
The trial judge's instruction is not without its imperfections, it is true. The mention of "consciousness of guilt" is one of them. It would hardly have had significance or meaning to a lay jury. But in the context, I regard the reference to this enigmatic notion as completely insignificant. The central message in the passage in question is that innocent people sometimes lie out of panic and various other reasons. The conclusion that the appellant had done so would "go to his credit" but not necessarily establish "his guilt" of the particular offences charged. This was a general (Broadhurst/Richens) direction on lies. Nothing more was given. Nothing more was required.

[115]

If, contrary to the foregoing, the use by the trial judge of the phrase "consciousness of guilt" (and the words which immediately followed it) are deemed misleading to the jury, so as to amount to error rather than insubstantial infelicity, I would certainly agree with the opinion in the majority of the Court of Criminal Appeal that no miscarriage of justice resulted and that the appeal should be dismissed[92]. Every accused is entitled to have a trial conducted in accordance with law and free from significant error in the direction given by a judge to a jury. Sometimes it is difficult to distinguish the case where a general direction on lies will suffice or where the more detailed Edwards direction is required. Sometimes, as here, the trial judge will enjoy only imperfect assistance - and especially where an accused is poorly represented or not legally represented at all. Sometimes the classification of particular lies as "going to" credit (on the one hand) or directly to the guilt of the accused (on the other), will be a matter of controversy. In these circumstances it is little wonder that so many appeals have been brought on the issue of judicial directions about lies.
The proviso represents another "reasonable practical accommodation of the interests of the state and the defendant"[93]. It recognises the imperfections inherent in any human system of justice. It invokes a judgment on the part of the appellate court as to whether error, if it be established, is only of a technical kind and is not one that results in a substantial risk of a miscarriage of justice. In a sense, even minor technical errors that rise above mere infelicity of expression constitute a miscarriage of justice, at least to some degree. That is why it is necessary to consider whether the error propounded has deprived the appellant of a real chance of acquittal[94]. It is not every case where an imperfect direction about lies will result in a conviction being quashed[95].
I accept that the test for the application of the proviso is a stringent one[96]. However, with the majority in the Court of Criminal Appeal, I believe that this was a case where any error in the judge's directions called forth its provisions. The appellant admitted obtaining the money the subject of the charges from the customers who complained of losing their money. The use to which the appellant put the money after he received it was proved by the undisputed evidence of his banking records. The customers were otherwise strangers to the appellant. It was inherently unlikely that, without inducement of some kind, they would provide him with their money which he could then use, as the evidence indicated, to discharge a multitude of his private debts. Even on his own evidence, the appellant conceded that he did not use the money he had obtained for the purposes for which he said he obtained it. In the case of counts 2 and 7 he did not use it to pay for furniture which had been purchased from the centre by which he was employed. In the case of count 3 he did not use it towards the cost of the purchase of land at Brooklyn Park. In the case of count 4 he did not use it towards the initial building of the units at Brooklyn Park. In the case of counts 5 and 6 he did not use it to free up the identified bank account. Nor did the appellant use the moneys he obtained from each of the victims towards the purchase of units which he said he was acquiring from his father. Those units were purchased and ultimately financed by bank loans. So far as count 7 was concerned, the appellant objectively lacked the bonus points in the staff incentive scheme which he represented as the means of attracting Ms Phillips to her imprudent trust in him.
The appellant relied upon the fact that on all but one of the counts of which he was convicted (count 3) the jury verdicts were reached by majority decision. However, that was true also of the count (count 1) of which he was found not guilty. It is a matter of speculation as to why the verdicts were reached by majority. In those jurisdictions of Australia where majority verdicts exist and are lawful, they represent the verdict of the jury. They do not represent some lesser, qualified or suspect outcome of a criminal trial. Nothing turns, therefore, on this consideration. In my view this was a very strong Crown case. The "imperfections" in the judge's direction were not such as to have resulted in a miscarriage of justice, in the sense of depriving the appellant of a real chance of acquittal that was fairly open to him[97].
This conclusion can be tested thus. The judge said very little about lies and the way the jury should use them if they were convinced that the appellant had lied. Most of what he said was in the nature of a general warning. The gist and substance of that warning was most certainly favourable to the accused. The passage appeared in the course of the judge's general remarks and warnings. If these convictions fall they do so because of a transient allusion by the judge to what "we call" a "consciousness of guilt". This is a phrase of such Delphic quality as to be most unlikely, in the large issues of this case, to have reverberated in the jury's collective mind for more than the passing moment once they were uttered[98].

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