Lies as consciousness of guilt

Brennan J (would dismiss the appeal)

1. On 9 October 1989, 19 prisoners were transported in the back of a prison van from Woodford Correctional Centre near Brisbane to the Rockhampton Correctional Centre at Etna Creek. This was a day's journey, the first stage of a journey to Townsville. The prisoners were to stay overnight at Etna Creek. The van was divided into two by a partition, 10 prisoners on one side of the van, 9 on the other. Some of the prisoners were handcuffed individually, some were handcuffed to another prisoner. They were to sit on benches along either side of the van. The van was equipped with a portable toilet and a box containing some food and drink. The mode of transportation was barbarous: there were no means of supervising the prisoners in the van, nor were the prisoners let out of the van en route to Etna Creek. However, the Court was informed that the mode of transportation of prisoners in Queensland has since been changed and the present arrangements afford continuous supervision of prisoners being transported and frequent stops on lengthy journeys.

2. The appellant Edwards, who was one of the prisoners in the van, was convicted of procuring another of the prisoners, Glen Edward Williams, to commit an act of gross indecency upon him, the consent of Williams being obtained by threats and by fear of bodily harm. Williams gave evidence that he was hit by other prisoners and forced to commit acts of gross indecency upon them in the course of the journey. Then, he said, Edwards procured him to put Edwards' penis in his mouth by promising that he, Edwards, would protect Williams from further assaults. When the van arrived at Etna Creek, Williams was taken to the Rockhampton Base Hospital where he was found to be suffering from multiple soft tissue injuries, particularly of the head. There was no other evidence in the prosecution case which corroborated the evidence given by Williams.

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5. In the course of the summing up the learned trial judge gave the jury a direction that it was dangerous to convict Edwards on the uncorroborated testimony of Williams alone but he went on to direct them that if they were satisfied beyond reasonable doubt that Williams was telling the truth they were entitled to convict. It is arguable that, although a corroboration warning has ordinarily been given in the case of a sexual offence allegedly committed between adult males ((1) Burgess (1956) 40 Cr App R144.), there was no necessity for such a warning to be given in the circumstances of the present case. However that may be, the case has been conducted throughout on the footing that a corroboration warning was necessary. The prosecution submitted that Edwards told lies in the witness box and that the telling of those lies corroborated Williams' evidence. The issue for determination on this appeal is whether the jury were properly directed as to the corroborative effect of Edwards' evidence.

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10. When a jury places an adverse complexion on the conduct and statements of an accused and comes to the view that he is unable to account innocently for the evidence given against him, the jury may act with more confidence on the evidence which is sought to be corroborated. They are entitled to say: although it would otherwise be dangerous to convict on the evidence to be corroborated, the accused is unable to account innocently for the facts revealed by that evidence and it is therefore safe to act on it. In Reg. v. Mullins ((6) (1848) 3 Cox C.C.526, at p.531.), Maule J pointed out that evidence might "be confirmed by the absence of contradiction, when if untrue, contradiction might be easily afforded". Of course, this is not to say that some evidentiary onus is placed on an accused to give evidence to contradict the case against him but, if he chooses to give evidence in contradiction of the evidence to be corroborated and his contradiction is a lie, the jury may regard the telling of the lie as confirming the credibility of the witness whose evidence is to be corroborated.

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12. It is sufficient that the jury be told that, if they form the view on the evidence other than the evidence to be corroborated that the accused has told a deliberate and material lie and that he did so because he was unable innocently to account for the facts revealed in the evidence to be corroborated, the jury is entitled to regard the telling of the lie as corroboration of that evidence. It then remains for the jury to find the facts upon which the verdict depends. It is at that stage that the question of standard of proof arises.

13. However, if the prosecution seeks to rely on the telling of the lie as an admission of guilt and invites the jury to treat that evidence as an independent proof of guilt, the prosecution bears the same onus as it bears whenever it relies on an alleged confession as an independent proof of guilt. It must prove beyond reasonable doubt that a confession of guilt was made.

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15. If the prosecution were to rely on the telling of a lie as an independent proof of guilt, the jury would have to be directed that, in order to convict on that basis, they must be satisfied beyond reasonable doubt that the true inference to be drawn from the accused's conduct is that he has confessed his guilt. In such a case, the jury would have to be satisfied beyond reasonable doubt as to Lord Lane's third test, for the accused's conduct could not otherwise amount to a confession of guilt. It would surely be a rare case in which it would be permissible to infer beyond reasonable doubt that an accused, by telling a lie, has confessed his guilt. Generally, the jury is directed that the accused should not be convicted merely because he has told a lie.

16. The telling of a lie by an accused is frequently relied on as a piece of evidence tending to inculpate the accused in the offence charged. The jury must consider the weight to be given to that evidence, but the weight of particular pieces of evidence does not involve a standard of proof. The relevant standard of proof governs the making of a finding of material fact on the pieces of evidence which logically, if not chronologically, the jury has already evaluated. The standard directions given by judges to juries in criminal cases distinguish (perhaps without consciously adverting to the distinction) between the evaluation of evidence and the finding of material facts. Recognition of this distinction goes a long way towards avoiding whatever misunderstanding there may be about the majority judgments in Chamberlain v. The Queen (No.2) ((10) [1984] HCA 7; (1984) 153 CLR 521.) relating to the drawing of an inference of guilt.

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21. In the present case, the jury were entitled to conclude on the basis of Edwards' evidence and demeanour in the witness box that his evidence about what he had seen and heard in the van was false. The jury might have come to the view that his motive for telling a lie was a fear of "dobbing people in", but they were entitled to come to the view that that was not Edwards' reason for making a false statement. However, if the jury came to the latter view, in what way was the telling of a lie material to proof of Edwards' guilt? There was nothing in the evidence which would have entitled the jury to find beyond reasonable doubt that Edwards, in telling the lie, had confessed that he had procured Williams to commit an act of gross indecency upon him. Nor was the making of a false statement by Edwards advanced as a fact from which, in conjunction with other facts, an inference of guilt could be drawn. The telling of a lie in evidence was advanced merely as corroborative of Williams' evidence. The case against Edwards rested entirely on the jury's assessment of the credibility of Williams and Edwards' alleged lie was advanced to strengthen Williams' credibility.

Deane, Dawson and Gaudron JJ (would allow the appeal)

8. There is a difference between the mere rejection of a person's account of events and a finding that a person has lied ((21) Smith v. N.S.W. Bar Association [1992] HCA 36; (1992) 176 CLR 256, at p.268. See also Jack v. Smail [1905] HCA 25; (1905) 2 CLR 684, at p.698; Scott Fell v. Lloyd [1911] HCA 34; (1911) 13 CLR 230, at p.241; Reg. v. Chapman (1973) QB 774, at p.780.). A lie is a deliberate untruth. To conclude that a statement is a lie is to conclude that the truth lies elsewhere. In some circumstances, a finding that a person lied will necessarily involve acceptance of the contrary ((22) Steinberg v. Federal Commissioner of Taxation [1975] HCA 63; (1975) 134 CLR 640, per Gibbs J at p.694, cf. per Barwick CJ at p.684. See also Broadhurst v. The Queen (1964) AC 441, at p.457.). However, the fact that a person has lied does not of itself establish a specific contrary proposition ((23) See Edmunds v. Edmunds and Ayscough [1935] VicLawRp 35; (1935) VLR 177, at p.186 where Lowe J said that "by no torturing of the statement 'I did not do the act' can you extract the evidence 'I did do the act'".).

9. 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. When it does so, it may amount to corroboration provided that it is not necessary to rely upon the evidence to be corroborated to establish the lie. At one time it was thought that only a lie told out of court could amount to an implied admission ((24) Tumahole Bereng v. The King (1949) AC 253, at p.270; Reg. v. Chapman (1973) QB, at pp.783-784.), but the distinction is not logically supportable and is no longer drawn ((25) Eade v. The King [1924] HCA 9; (1924) 34 CLR 154, at p.158; Reg. v. Tripodi [1961] VicRp 30; (1961) VR 186, at pp.193-194; Reg. v. Perera [1982] VicRp 91; (1982) VR 901, at pp.904-905; Reg. v. Heyde (1990) 20 NSWLR 234, at pp.236, 241; Reg. v. Boardman (1975) AC 421, at pp.428-429; Reg. v. Lucas (Ruth) (1981) QB, at pp.724-725; Heydon, "Can Lies Corroborate?", (1973) 89 Law Quarterly Review 552.). When the telling of a lie by an accused amounts to an implied admission, the prosecution may rely upon it as independent evidence to "convert what would otherwise have been insufficient into sufficient evidence of guilt" ((26) Dearman v. Dearman [1908] HCA 84; (1908) 7 CLR 549, per Griffith CJ at p.555.) or as corroborative evidence.  10. 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 ((27) Eade v. The King (1924) 34 CLR, at p.158.). 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" ((28) Reg. v. Tripodi (1961) VR, at p.193.).

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12. But in truth there is no circularity of the kind suggested. It is convenient to confine ourselves to the requirement that there be a consciousness of guilt, but the same analysis is applicable to the requirement that the lie relate to a material issue. Although guilt must ultimately be proved beyond all reasonable doubt, an alleged admission constituted by the telling of a lie may be considered together with the other evidence and for that purpose does not have to be proved to any particular standard of proof. It may be considered together with the other evidence which as a whole must establish guilt beyond reasonable doubt if the accused is to be convicted ((30) See Shepherd v. The Queen [1990] HCA 56; (1990) 170 CLR 573.). If the lie said to constitute the admission is the only evidence against the accused or is an indispensable link in a chain of evidence necessary to prove guilt, then the lie and its character as an admission against interest must be proved beyond reasonable doubt before the jury may conclude that the accused is guilty. But ordinarily a lie will form part of the body of evidence to be considered by the jury in reaching their conclusion according to the required standard of proof. The jury do not have to conclude that the accused is guilty beyond reasonable doubt in order to accept that a lie told by him exhibits a consciousness of guilt. They may accept that evidence without applying any particular standard of proof and conclude that, when they consider it together with the other evidence, the accused is or is not guilty beyond reasonable doubt.

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14. A lie can constitute an admission against interest only if it is concerned with some circumstance or event connected with the offence (i.e. 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 ((31) See M v. R, unreported, Court of Criminal Appeal of South Australia, 18 August 1993, at pp.4-5.). 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 ((32) See, e.g., Credland v. Knowler (1951) 35 Cr App R 48; Tripodi v. The Queen [1961] HCA 22; (1961) 104 CLR 1, at p.10; Buck (1982) 8 A Crim R 208, at p.214; Reg. v. Preval (1984) 3 NSWLR 647, at pp.650-651; Reg. v. Evans (1985) 38 SASR, at pp.348-349; People v. Showers (1968) 440 P 2d 939, at p.942.) 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 realisation of guilt and a fear of the truth". 

15. Moreover, the jury should be instructed that there may be reasons for the telling of a lie apart from the realization of guilt ((33) See, e.g., Lonergan v. The Queen (1963) Tas S R 158, at p.160; Broadhurst v. The Queen (1964) AC, at p.457.). 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 is the explanation for the lie, they cannot regard it as an admission. It should be recognized that there is a 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.

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20. On a proper analysis of the evidence, the appellant denied neither the occurrence of the events in the van nor his knowledge of the nature of those events. His cross-examination was not directed to those matters. The most that was established by his cross-examination was that, contrary to his evidence-in-chief that he turned away and did not look to see what was going on, on a few occasions he did look around and, on one occasion, saw Wallace push Williams and, at or about the same time, heard thumps or slaps.

21. The precise details of what the appellant saw and heard and the identity of those who participated in particular events had no significance at all in relation to what was alleged against him. Because the lie went only to those matters, it was not capable of revealing anything of the events constituting or bearing on the offence. More particularly, it was not capable of revealing anything of the appellant's knowledge or state of mind with respect to those events.

McHugh J (would dismiss the appeal)

3. The jury were entitled to conclude that the accused lied about his knowledge of some of the relevant details including the statement "Whoever wants a head job, just come down here". If the jury concluded that he lied about these details, it would have been open to them to conclude that he lied because he was unable to give any innocent explanation or account for what happened after the incidents occurred and those words were said. The statement "Whoever wants a head job, just come down here" was an invitation to the accused and other prisoners to engage in sexual activity with the complainant. The jury could conclude that the only reason that the accused lied about his knowledge of that invitation was because he was conscious of the fact that he had accepted the offer. Similarly, the jury could conclude that the only reason that he had lied about his knowledge of seeing any incidents concerning the complainant was that he was conscious of the fact that he had taken advantage of what had occurred to the complainant to procure the performance of an act of oral sex on himself.

Gleeson CJ, Gaudron, Gummow and Callinan JJ (would allow the appeal)

1. This case is concerned with the correctness of a direction given by a judge of the District Court of South Australia in a criminal trial with respect to evidence of the appellant in his trial which the jury could have inferred to be false.

2. 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.

3. 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.

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11. It was presumably on the basis of these exchanges that the trial judge gave a direction on lies which is set out in a passage from the reasons of Prior J in the Court of Criminal Appeal which we will quote. No application was made for redirection.

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14. 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.

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 problems. 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 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, "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 in issue and the basis on which they are said to be capable of implicating the accused in the commission of the offence charged.

18. 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.

19. 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.

20. 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.

21. 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.

22. 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.

23. 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:

"You have heard a lot of questions, which attribute lies to the accused. You will make up your own mind about whether he was telling lies and if he was, whether he was doing so deliberately. It is for you to decide what significance those suggested lies have in relation to the issues in the case but I give you this warning: do not follow a process of reasoning to the effect that just because a person is shown to have told a lie about something, that is evidence of guilt."

Kirby J (would dismiss the appeal)

40. In conformity with Crown practice in South Australia, because the appellant was not legally represented at his trial, the prosecutor elected not to address the jury. For this reason the precise way in which the prosecution subjectively intended to use any alleged lies which it had exposed in cross-examination of the appellant was not explained, either to the judge or to the jury. It is therefore necessary to draw inferences from the passages in the transcript in which it appears that the prosecutor was suggesting to the appellant that the evidence he had given was false.

41. In a case where the prosecutor addresses the jury, a trial judge is entitled to require the prosecutor to make clear the way in which it is being suggested that lies, allegedly told out of court or during evidence, should be used by the jury in performing their functions. Where, as here, there was no address but simply the testimony of the accused, the purpose of the prosecutor, objectively ascertained, had to be extracted from the questioning, its relevance to the issues and its context.

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49. In most criminal trials where the accused gives evidence, and in virtually all trials involving charges of fraudulent conversion and false pretences, what the accused says will contradict, in important respects, the testimony of other witnesses such as the alleged victims. In such circumstances it will commonly be suggested (as it was here) that the evidence of the accused is false. Rules of law and of practice may require this to be done. Traditionally, it was left to the jury to determine the version of events (if any) to be accepted. With proper instruction and warnings, it is for the jury to decide whether the prosecution has established its case to the requisite standard.

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70. Experienced trial judges have noted the difficulty presented by the Edwards principles, the practical difficulties which they present at trial and the "fertile ground for appeal" which they provide. 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"). 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. But there remain at least two problems.

71. 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". 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.

72. 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.

73. 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. 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.

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77. With respect, I do not agree with either of the opinions expressed in the Court of Criminal Appeal. In my view, having regard to the way in which the appellant was cross-examined to suggest that he had lied both to the customers and in his evidence in court, it did become necessary for the trial judge (and was incontestably open to him) to give what I would describe as a general direction about lies. This would include assistance to the jury about the use which they might make of the fact that, in or out of court, the accused was guilty of relevant falsehoods (if that was the jury's conclusion).

Gleeson CJ and Hayne J

1. The appellant was convicted of robbery in company with wounding, and kidnapping. The victim, Mr Schembri, gave evidence that, on the evening of 19 January 1999, he met four men of Indian or Sri Lankan appearance in a hotel. At his invitation, they accompanied him back to his flat. There, after a brief interval, all four of them set upon him, wounded him, robbed him, took him from his flat at knife-point and attempted to force him into a car with a view to taking him to an automatic teller machine. Mr Schembri said that the time between arriving at the flat and leaving seemed about 15 or 20 minutes. In cross-examination he said that four to five minutes elapsed between his arrival at the flat and the commencement of the attack. It was suggested to Mr Schembri in cross-examination that the violence commenced later than he indicated, but he adhered to his evidence that he was attacked only a few minutes after he arrived at his flat, and rejected the proposition that half an hour or more elapsed between his arrival at the flat and his being taken out to the street.

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Inconsistencies

25. This was a subject on which the Court of Criminal Appeal was divided. The ground of appeal in this Court was:

"The Court of Criminal Appeal erred in holding that a direction in relation to lies was not required in the circumstances of the case."

26. No direction in relation to lies was sought at trial. Kirby J, in dissent in the Court of Criminal Appeal, considered that the decision of this Court in Zoneff v The Queen required a direction.

27. The relevant facts may be stated shortly. When the appellant was first interviewed by the police in September 1999, he was told that the police were investigating a stabbing and robbery in January 1999, involving an attack upon a man who had "invited a group of people from a pub at Rozelle back to his unit". The appellant was told that his fingerprints had been found in the unit. Having been given that very limited information, the appellant was asked whether he could explain how his prints came to be there. He said he had no idea. He was asked whether he had ever been to the Bridge Hotel at Rozelle. He said he had not. He said he knew nothing about the alleged occurrence.

28. In his evidence at trial, in May 2000, the appellant admitted he had been at the hotel, and that he had gone back to Mr Schembri's flat with three other men, and gave an account of what he did at the flat which, if accepted, could have provided an innocent explanation of the presence of his fingerprints.

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32. In the context of the whole of the evidence, and the issues as they developed at trial, there was little to be made of what the appellant said to the police in September 1999, and a reading of the summing-up indicates that little was sought to be made of it. The prosecutor was entitled to suggest, as he did, that there were aspects of the appellant's response that could be taken to reflect adversely on his reliability. The matter did not go beyond that.

33. The facts of the case are quite different from those of Zoneff, where the prosecutor, in cross-examination of the accused, had attributed lies to him, but had not addressed the jury. The trial judge himself, in his summing-up, had raised the question of lies and consciousness of guilt, evidently considering that there was a risk that the jury would consider that it was part of the prosecution case that the suggested lies were evidence of consciousness of guilt.

34. It is not necessary for a trial judge to give a direction, either of the kind referred to in Edwards, or of the kind referred to in Zoneff, every time it is suggested, in cross-examination or argument, that something that an accused person has said, either in court or out of court, is untrue or otherwise reflects adversely on his or her reliability. Where the prosecution does not contend that a lie is evidence of guilt, then, unless the judge apprehends that there is a real danger that the jury may apply such a process of reasoning, as a general rule it is unnecessary and inappropriate to give an Edwards direction. Zoneff was said to be an unusual case, and the direction there proposed was said to be appropriate where there is a risk of misunderstanding about the significance of possible lies. The present was not such a case.

McHugh and Gummow JJ

(2) Lies

55. Dhanhoa alleges that the Court of Criminal Appeal "erred in holding that a direction in relation to lies was not required in the circumstances of the case." At the trial, counsel for Dhanhoa did not seek any direction in relation to lies. Despite this omission, Kirby J, who dissented in the Court of Criminal Appeal, held that this Court's decision in Zoneff v The Queen[22] required such a direction.

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58. If the jury found that Dhanhoa had lied to the police, they were entitled to infer that his evidence lacked credibility. But we think that, if the Crown had asked for a direction, the jury were also entitled to conclude that he had lied because he knew that the victim had been assaulted, robbed and detained. That is to say, the jury were entitled to think that he had lied because he was conscious that he was guilty of participating in the crimes and could give no innocent explanation for his presence at the flat if he had admitted that he was there. But the Crown made no attempt to run a case of consciousness of guilt. At no stage of Dhanhoa's cross-examination did the prosecutor expressly suggest to him that he had lied to the police because he had a consciousness of guilt. And because that was so, the trial judge did not direct the jury that, if they thought he had lied to the police, they could use the lie as evidencing a consciousness of guilt on his part. But the trial judge did direct the jury that various matters - one of which was the difference between what the accused told the jury and what he told the police - was "part of the Crown case and it is for you to determine whether there is any relevance in that".

59. It is possible, therefore, that the jury may have reasoned that the accused was guilty because he had lied to the police. It is not necessary for a trial judge to give a direction concerning lies as evidence of guilt whenever a prosecutor suggests directly or indirectly that an accused's out-of-court statement is a lie. But in this case it would have been better if the trial judge, having given the direction that he did, had instructed the jury as to how they were to use any lie told by the accused. Given the way that the Crown conducted its case, it would have been better if the trial judge had directed the jury that the accused's lies, if they found he had lied, only affected his credibility.

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64. Accordingly, we do not think that there is a reasonable possibility that the verdict of guilty would have been different if the trial judge had given a direction concerning lies. Indeed, to have given a direction about lies - to have given an Edwards direction[28] - might not only have emphasised the issue but made it difficult for the jury to disregard consciousness of guilt as an issue.

Callinan J

96. I am of the opinion that the second ground of appeal has also been made out. Whilst it is correct that the respondent did not make any submission that the appellant had told lies with respect to his presence at the flat, and that those lies were told out of a consciousness of guilt, it is difficult to see how the evidence in relation to the appellant's account of his presence at the flat could have had any other implication. No doubt that evidence went to credit, but like a great deal of other evidence going to credit at trial, it also inevitably went to the central issue, of guilt or otherwise. And this was so as a matter of ordinary understanding, whether the respondent or indeed the trial judge chose to say anything explicit about it or not. True also it may have been that in the cross-examination to which the respondent drew the Court's attention there was no direct and overt suggestion to the appellant that he had told lies out of a consciousness of guilt, the cross-examination nonetheless, unmistakably, if subtly, made that suggestion.

97. Occasion did therefore arise at the trial for the giving of a direction of the kind to which Edwards v The Queen refers. The second ground of appeal is accordingly also made out.

Grove J

1. Steven and Shiree Smit and Donna Tarrant were jointly indicted on a charge that on or about 29 August 2001 at Katoomba they murdered Craig Collins. Following trial before Hulme J and a jury they were convicted and sentenced. Each appeals against conviction. None of them seeks leave to appeal against sentence.

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74. Next I turn to the remaining grounds advanced on behalf of Ms Tarrant. Ground 3 asserted that the trial judge erred in directions to the jury regarding evidence that the appellant had attempted to establish a false alibi.

75. Ricky Ranse testified that he was interviewed twice by police, on 30 August and 12 September 2001 respectively. Between those dates Ms Tarrant approached him and asked him to say that she had been at his home for a couple of weeks.

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78 No direction was given to the jury as to how they might make use of the circumstance that Ms Tarrant attempted to set up a false alibi, if they so found. It was submitted by the Crown in the appeal:

“It is clear the Crown Prosecutor did not refer to ‘consciousness of guilt’ in terms. The matter was relied upon by the Crown as a matter going to her credibility and that the jury would not believe her statement given to the police that at the time of the offence she lived with Mr Ranse”.

At [80] to [82]

Of course if a false alibi has been set up then reliance on it inevitably involves lying: cf R v Harrol 1996 2 Cr App R 457. That was not this situation. Ms Tarrant was alleged to be asking Mr Ranse to lie for her. He knew what the truth was, he was not deceived by her and she was not lying to him.

The question therefore is what use could the jury make of a finding that Ms Tarrant sought the help of Mr Ranse to set up a false alibi. The answer must be that she therefore manifested a consciousness of guilt, whether or not that particular expression was engaged. The fact that that expression was not used is not to the point. The expressions used by both his Honour and the Crown Prosecutor inevitably convey an invitation to use the evidence in that way. It was incumbent upon his Honour to give a full direction as to how the jury could use this evidence to inculpate Ms Tarrant along the lines analogous to that which is required when a prosecution relies upon the telling of lies as evidencing such a consciousness: Edwards v The Queen [1993] HCA 63; 1993 178 CLR 193.

This ground is made out.

James J

92. I agree with Grove J.

Hoeben J

93. I agree with Grove J and the orders proposed.

McClellan CJ at CL

1. The appellant was tried and convicted upon an indictment which contained one count in the following terms:

“On 8 January 2004 at Sydney in the State of New South Wales, supplied a prohibited drug, namely, cocaine, in an amount of 500.3 grams, being an amount not less than the commercial quantity for that drug.”

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15. The appellant then placed himself in the driver’s seat with Francisco in the passenger seat of the Subaru. Nikolovski left the area and returned to the Peak Apartments carrying a plastic bag. The appellant said he put the Hugo Boss bag in the back seat, the package under the driver’s seat, the scales in the glove box and passed the gloves to Francisco and asked him to “chuck them out.”

16. The Subaru was subsequently pulled over in the Haymarket area. The police told the appellant that they had information that there were drugs in the car and checks needed to be done. The appellant gave his licence and the car keys to the police. Whilst the police were conducting checks on the vehicle the appellant and Francisco ran from the car. The appellant took the package he had put under his seat with him.

17. The appellant was subsequently apprehended. Whilst running from the car he threw a bag under a red Mercedes motor vehicle. That bag was later found to contain cocaine. It had the words “Red Gold Riven, Little Hay Street” written on the outside. The appellant said he did not know what type of drug was in the package, nor its weight. He claimed that the drugs belonged to Nikolovski.

18. When the Subaru was searched $6,000 was found inside the Hugo Boss bag. The scales and gloves were found to contain traces of cocaine. The appellant’s mobile phone was found in the “bum bag” he was wearing. It also revealed traces of cocaine. The appellant said he did not know in what circumstances his phone came into contact with cocaine. The cocaine was found to weigh 500.3 grams with a purity of 83.5%.

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29. It was submitted that the jury should have been warned that a person may flee for reasons other than guilt eg panic, or being wrongly accused. Furthermore, it was submitted that before the evidence could be used as consciousness of guilt, the jury must be satisfied beyond reasonable doubt that the appellant sought to flee to escape arrest for the offence with which he was charged.

Resolution of the appeal

30 The evidence of the appellant’s attempt to escape from the police was admitted without objection. This was inevitable, because it formed part of the sequence of events which revealed the appellant’s connection with the drugs he had discarded. For this reason the Crown, and her Honour when summarising the Crown case, included a reference to the fact that the appellant panicked when it became apparent that the car would be searched causing him to run away. To my mind it was not relied upon as evidence of consciousness of guilt of the offence as charged. It was merely an incident which, together with the other evidence, comprised the circumstances from which the jury could be satisfied of the appellant’s guilt.

31. However, if it be accepted that it was relied upon as evidence of consciousness of guilt I do not believe that any directions beyond those which her Honour gave were required in this case. The necessity for a special direction comes from the risk that the jury may reason towards guilt when there may be other, and innocent, explanations for the accused’s actions. The same position arises with lies told by an accused. Although many people would be aware of the possibility of an innocent explanation, unless reminded, there is a risk that the jury, being aware of the flight or lie, which is capable of having a powerful impact, may, without adequate reflection, convict an accused.

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33. Only one qualification may be necessary to her Honour’s remarks. Her Honour speaks of the jury being satisfied that the lie or flight points unequivocally to consciousness of guilt of the relevant offence. In Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193 Deane, Dawson and Gaudron JJ emphasized that unless the alleged lie is the only evidence against an accused, or an indispensable link in the chain, it does not have to be proved beyond reasonable doubt (p 210).

34. In the present case it was plain that the appellant sought to escape in order to avoid apprehension for an offence relating to the drugs he had discarded. He said that he did so because he might be wrongly accused of possessing the drugs. His counsel reminded the jury of this explanation and her Honour, in summing up, also reminded them of it. No other explanation was offered. It follows that there was no reason for the trial judge to remind the jury that persons may have reasons to flee other than from a consciousness of guilt. The issue was properly placed before the jury.

McClellen CJ at CL

1. The appellant was convicted of the murder of Warren Dickson on 13 February 2005. He appeals that conviction. There are three grounds of appeal, two relating to the admission of evidence. The other ground raises one aspect of the trial judge’s summing up for consideration.

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4. The evidence was that the appellant had gone to the deceased’s house wearing gloves and a balaclava. Although the appellant said he was wearing thongs it was the Crown case that he was wearing sneakers. The Crown alleged that he was carrying an iron bar or crowbar, although the appellant claimed that he was carrying a piece of “reo.” He “shimmied” up the pipe outside the rear kitchen window, broke the glass and climbed in. It was the Crown case that he intended to cause serious injury to the deceased. The appellant said that he had entered via the kitchen window because the deceased had not answered his door on a previous occasion.

5. The deceased was apparently awakened by the noise and confronted the appellant in the kitchen. Significant pools of blood were found in the kitchen and it is apparent that the deceased was killed at this location. A post-mortem was carried out which indicated that the deceased suffered two fatal wounds to his neck: one a slash wound and the other a stab wound. Death would have followed quickly as a result of either wound. The weapon used to make the wounds was never found.

6. After the deceased had died the appellant dragged him through the house to the main bedroom. The appellant, using an accelerant, set the house alight and fled the scene. The seat of the fire was identified as the main bedroom.

7. The appellant met Ms Deluca later on the morning of 14 February. He feigned ignorance of the events. When spoken to by the police he denied any involvement in the crime and claimed, contrary to the evidence of his daughter, Kimberley, that he was home all night. He denied knowing the deceased’s name or where he lived. He said to the police “Lucky I didn’t know the guy or I’d be the prime suspect.” On 16 February 2005 the police inspected the appellant’s house and car. During the course of the search, Det Buining apparently detected blood on some portion of the appellant’s car. He called over another police officer and informed him of his discovery. The evidence indicates that the appellant’s demeanour, which had previously been calm, suddenly changed.

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13. On 18 February the appellant robbed the bank at Wauchope. He said that he used a replica pistol. The teller who was removing money from teller boxes said to him:

“Isn’t there any other way? Are you sure you want to go through with this?”

14. The appellant replied:

“Once they find out what I did last week, that’s it. I need the money.”

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29. The appellant submitted to this Court that the evidence of the armed robbery, although having some probative value, was weak and the evidence, being unfairly prejudicial to the appellant, should have been rejected. In the alternative it was submitted that “surgery” could have been carried out on the evidence and the conversation with the bank teller tendered without evidence that it occurred during a robbery.

30. Before the trial commenced the appellant had unsuccessfully sought to have his trial for the armed robbery count separated from his trial for the murder. That application was rejected but no appeal was filed. When the matter was agitated during the trial, counsel for the appellant indicated that the appellant admitted as a fact that (a) he attended the residence of the deceased on the day of his death; (b) he entered the deceased’s residence; (c) there was a verbal and physical confrontation with the deceased; and (d) he inflicted the fatal wounds during the course of a struggle. The appellant also admitted that he had robbed the bank.

31. The trial judge considered an objection to the evidence which he identified as being evidence of the robbery together with statements about it either before or after the event. His Honour identified the fact that the principal issue in the trial was likely to be self-defence. His Honour determined that the appellant’s statements to other persons as to the nature of, and reasons for his actions were intertwined with his statements regarding his intention to obtain money unlawfully and to flee. His Honour was further of the view that evidence of the proposed robbery and flight was capable of demonstrating consciousness of guilt, although whether it had this quality was a matter for the jury. His Honour referred to the remarks of Simpson J in R v Cook [2004] NSWCCA 52 where her Honour considered the issues relevant to lies which were said to reflect consciousness of guilt (at [21] and following).

32. His Honour concluded that parts of the statements made by the appellant to Ms Mitchell, Ms Barkwill and to Ms Mathews relating to his intention to rob a bank or the fact that he had committed a bank robbery to provide funds for his contemplated disappearance were relevant as possible evidence of consciousness of guilt. The robbery and contemplated flight might be found by the jury to reflect an awareness on his part that his actions in killing the deceased did not flow from a belief that he had been acting in defence of his person. Similarly his Honour ruled that the evidence of the removal of the children to Queensland and his return to New South Wales and the carrying out of the robbery at Wauchope were capable of reflecting a consciousness of guilt.

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36 In my judgment the challenged evidence was properly admitted. The admissions which the appellant made in the course of the robbery were capable of being understood by the jury as reflecting a consciousness in the appellant that he had wrongfully killed the deceased.

37 The appellant’s reaction to the killing, including the commission of the armed robbery, was an indication of his state of mind and how he viewed his actions. He told his mother in the note to her “All I know is, that the thought of spending the rest of my life in prison does not appeal to me.” It was open to the jury to conclude that his flight, and the measures he took to stay on the run from the police, including raising money by robbing the bank, indicated a consciousness on his part that he had not acted in self-defence.

38. The appellant said that his reason for committing the armed robbery of the bank was to “lay low” for a while to evade capture for killing the deceased. He did not suggest that he committed the robbery for some unrelated reason.

39. The appellant was not in the dilemma referred to in R v Cook [2004] NSWCCA 52 of being unable to say anything about the evidence or being required to disclose unrelated criminal activity. The defence had available the submission to the jury, as was submitted to this Court, that the appellant’s actions were motivated by panic and borne of a feeling of moral (not legal) responsibility or the prospect of unjust arrest.

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43. Any effect upon the appellant of the alleged provocation could not be separated from his actions said to have been done in self-defence. The appellant only described himself lashing out with the knife once and it is difficult to see, on his account, how excessive force entered into the equation. If his account was accepted he had lawfully acted in self-defence. At the very least from his account of the relevant events he would have believed that his actions were lawful. It must be remembered that the appellant claimed that he was initially confronted by the deceased who was carrying the knife. In these circumstances the appellant’s reaction to the killing including his actions in fleeing the police and committing the armed robbery were capable of indicating how he truly viewed his actions.

44. There are further considerations. In my opinion it was open to the jury to conclude that the appellant’s statement to the bank teller constituted an admission that he had murdered the deceased. He told the teller: “Once they find out what I did last week, that’s it. I need the money.” Even if the statement was open to being construed as an innocent interpretation, it was capable of being understood as an admission that he had killed the deceased without justification. There were other admissions interwoven with the robbery. These included the conversation he had with Ms Barkwill and the counting out of the money and revealing the gun. To my mind the circumstances associated with the robbery were inextricably bound up with the conduct of the appellant following the killing and were admissible.

45. The appellant emphasised that the prejudicial effect of the evidence was high and submitted that for this reason it should have been rejected (s 137 Evidence Act 1995). I do not accept that submission even though the evidence revealed another criminal offence: see Markby v The Queen [1978] HCA 29; (1978) 140 CLR 108 at 116; Smale v R [2007] NSWCCA 328 at [33]. The same position prevails in relation to offences committed during flight: R v Cook [2004] NSWCCA 52 at [47]; Quinlan v R [2006] NSWCCA 284; (2006) 164 A Crim R 106 at [18]. The detail of the robbery was not an issue. There was no difficulty for the jury in separating the fact of the robbery from the killing and there was, in my view, no prospect of the jury using the evidence in an impermissible way. As the respondent pointed out, it was possible for the appellant to have turned his admission of the robbery to his advantage. Having made that admission and given himself up to the police, he was in a position to indicate that he was a person telling the truth including giving a truthful account of the circumstances in which he killed the deceased.

Whealy JA

1. I agree with Latham J

Hislop J

2. I agree with Latham J.

Latham J

3. The appellant appeals against his conviction after trial by jury on one count of sexual intercourse with a child above the age of 14 years and under the age of 16 years (s 66C, Crimes Act 1900). The offence carries a maximum penalty of 10 years imprisonment. The appellant received a sentence of 3 years imprisonment, but there is no appeal against sentence.

4. The offence was charged in the alternative to an offence of sexual intercourse without consent. It was alleged that the appellant digitally penetrated the complainant, whilst both were staying at the home of the complainant's sister (KN) in preparation for KN's wedding that weekend in Moree. The appellant was the groom's best man at the wedding. The appellant, who gave evidence at trial, disputed that any sexual activity had taken place between himself and the complainant. The jury's verdict reflects an acceptance of the complainant's evidence, albeit a failure to be satisfied beyond reasonable doubt that the complainant did not consent or that the appellant knew that she was not consenting.

5. All three grounds of the appeal complain of alleged errors in the directions of the trial judge relating to the appellant's behaviour at the time of, and following, the communication to the appellant by the complainant's sister and her husband of the allegation of sexual impropriety. Evidence on this topic was adduced in the Crown case and the appellant was cross examined upon it.

6. The grounds of the appeal are :-

Ground 1: the trial judge erred in failing to adequately direct the jury in relation to the appellant ' s silence or inaction in response to the allegations put to him by KN and N and as a consequence the trial miscarried.

Ground 2: the trial judge erred in failing to adequately direct the jury regarding the circumstances in which the appellant ' s silence or inaction could be used as evidence of consciousness of guilt and as a consequence the trial miscarried.

Ground 3: the trial judge erred by failing to adequately direct the jury in relation to the submission to the jury by the prosecutor to discount the whole of the appellant ' s evidence due to his silence or inaction in response to the allegation put to him and as a consequence the trial miscarried.

7. The appellant contends that the prosecution relied upon the appellant's conduct in response to the allegations as evincing a consciousness of guilt. It is submitted that the cross examination of the appellant and the prosecutor's closing address conveyed as much to the jury, and that the trial judge was therefore obliged to direct accordingly.

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10. The complainant's sister, KN, gave evidence of a disclosure by the complainant to her shortly prior to Christmas 2007. The disclosure was repeated by KN to her husband, N, the same night. That same night, KN attempted to call the appellant but was unsuccessful. On Boxing Day, they received a telephone call from the appellant, who spoke to N in the presence of KN. N said to the appellant "we've been given some information about a few days before our wedding that involved [the complainant]. Can you tell me more?"

11. The appellant replied "I'm travelling back from Sydney. I can't talk right now. I'll call you when I've returned to Moree ". In the days following that conversation, KN sent a number of text messages to the appellant. It was not until January that the appellant replied by text in the following terms, namely, "you won't believe me anyhow. You will only believe what your sister tells you". There was no further contact from the appellant.

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26. The law has always recognized the legitimacy of reliance upon post-offence conduct in support of a prosecution case. The most common example of such post-offence conduct is lies told by an accused ( Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193), although an accused's silence in response to an allegation which he/she might reasonably be expected to deny ( R v MMJ [2006] VSCA 226), the destruction of evidence ( R v Nguyen [2001] VSCA 1) and attempts to influence the evidence of witnesses ( R v Smit & Ors . [2004] NSWCCA 409) all fall into the same category…

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35. What was conveyed to the jury on the subject of the appellant's conduct in response to the allegation? Contrary to the Crown's submissions, I am not persuaded that the answer to that question resides solely in the respective closing addresses. If the cross examination of the appellant gave rise to the risk of consciousness of guilt reasoning in the minds of the jury, it was incumbent on the judge to seek clarification from the Crown Prosecutor and to direct the jury accordingly.

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42. In the circumstances of this case, I have come to the view that it was necessary for the trial judge to give a direction to the jury which would guard against the unjustified drawing of an inference adverse to the appellant. The cross examination of the appellant unequivocally suggested that the appellant's conduct constituted an implied admission. At the very least, the jury should have been directed that, before they could infer that the appellant behaved as he did because he was conscious of his guilt of the offence, they were required to examine that inference to determine whether it was a reasonable and justifiable one and they were required to exclude any alternative inference that was inconsistent with guilt. The most obvious alternative inference that called for exclusion was that the appellant acted in accordance with his sister's advice, namely, to say nothing about the allegation to anyone, including N, his wife and the complainant.

43. If one were to go further and consider adapting the recommended directions relating to the use of lies as consciousness of guilt, discussed by the majority in Edwards, the tenuous nature of the proposition sought to be established by the Crown Prosecutor in cross examination is more apparent. According to Edwards (at 210 - 211), the conduct should be precisely identified, together with the circumstances and events that are said to indicate that the conduct constitutes an implied admission. The conduct was not precisely identified; was it the appellant's failure to make further enquiry of N and/or his failure to protest his innocence, beyond the constructive denial in the text message to N? What were the circumstances and events that indicated that the appellant's conduct constituted an implied admission? How did the appellant's conduct in failing to categorically deny the offence to N, in particular, reveal his knowledge of the offence or some aspect of it? 

Hoeben J

1. The appellants appeal against their conviction for murder, pursuant to ss 5(1)(a) and (b) of the Criminal Appeal Act 1912.

2. The appellants were jointly tried in July 2009 in the Supreme Court before Justice Latham and a jury. The indictment charged each of the appellants with the murder of Christian Minotte on 17 April 2006 at Mount Pritchard. The trial was heard over 13 court days. After deliberating for approximately three and a half days, the jury returned guilty verdicts on 30 July 2009 in relation to both appellants.

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4. The trial was conducted by the Crown on the basis that the appellants went to the home of the deceased, armed with a firearm, with the intention of stealing drugs and/or money concealed in a wall cavity in the laundry of his home. The deceased was a successful drug dealer who was known by Mr Penza, his step-son, to keep cash and drugs in his home. At some stage, the deceased confronted Mr Di Maria and a struggle took place, culminating in the discharge of the firearm into the deceased's head. On the Crown case, the evidence did not disclose which of the appellants was directly responsible for the fatal shooting.

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129. The last four areas of evidence raise the same issue and suffer from the same difficulty. In the case of Mr Penza, the Crown submitted that the lies told by him in both his recorded interviews - that he had not been to the deceased's house on 17 April 2006 and that he knew nothing of the circumstances surrounding his death, were evidence of a consciousness of guilt and therefore were capable of proving that he and Mr Di Maria went to the deceased's house armed.

130. It was common ground that Mr Penza had told lies to the police in his ERISPs in relation to those matters. The lies were clearly intended to separate him from the scene of the incident. Mr Penza had also told lies to Messrs Amil and Clarke as to his movements on that night. He told Mr Amil that he had not been at the deceased's house that night and he told Mr Clarke that he was at his girlfriend's that night.

131. In the context of a defence case which conceded that Mr Penza had formed an intention to steal from the deceased, and where he knew that the deceased had been shot in the course of a struggle with Mr Di Maria, there is a ready explanation for the lies that does not go to consciousness of guilt with respect to murder. As his counsel put to the jury, he knew that he had done the wrong thing, when attempting to steal from his stepfather, and thereby causing his death. This was a plausible alternative explanation for the lies. In addition, there was evidence of a real basis for him to fear other family members. This provided a continuing reason why he did not simply admit that he had gone there with Mr Di Maria to steal from the deceased.

132. The same submission is available in relation to the grazes and marks on his arms. He told Mr Clarke that these had been caused when he was trying to fix Phillip Minotte's car. Such marks as were described by Mr Clarke were also consistent with trying to break open the brickwork, concealing the wall cavity and with his blood which was found in the laundry. It was an available and plausible inference that Mr Penza was trying to hide his involvement with the plan to steal and the ultimate death of the deceased. That lie and the other lies did not compel a conclusion that if he told the truth, he would necessarily be admitting to murder.

133. Leaving aside the question of the admissibility of the evidence as to lies (which forms the basis of another ground of appeal), its probative value was at best slight. It certainly was consistent with a consciousness of guilt but a consciousness of guilt of a different offence, i.e., the actual or attempted robbery of the deceased and an involvement in his death, but not necessarily an involvement amounting to the offence of murder. It was, of course, also consistent with a consciousness of guilt for the offence of murder. The difficulty for the Crown is that there was nothing in the evidence concerning the lies which rendered this evidence more consistent with the Crown case of murder than with the defence hypothesis that they were engaged in the theft of money and drugs when as a result of series of unfortunate events, the deceased died.

134. The same considerations apply to the evidence of flight in relation to Mr Di Maria. The matters relied upon against him as indicating a consciousness of guilt were his departure for Malaysia on 18 April 2006, the adoption of a false name and the creation of a false identity when returning to Australia and his flight when stopped by police on 24 August 2007 after his return to Australia.

135. The evidence of Mr Di Maria was that the motivation for his flight and other actions was a fear of retribution from members of the deceased's family, in particular the son Phillip.

136. Those areas of evidence ((d), (e) and (f) in her Honour's written direction) are not capable of discerning between the existence of a consciousness of guilt, which might reasonably follow from the events described by Mr Di Maria (an attempted drug theft gone wrong, culminating in the death of the deceased following a struggle and the involuntary discharge of the firearm) or the scenario contended for by the Crown (a deliberate shooting of the deceased or felony murder). There is no rational basis upon which the jury could have been satisfied that one scenario was to be preferred to the other. Alternatively, (and this relates to Ground of Appeal 3), the evidence was not capable of discerning between a consciousness of guilt that might arise following the commission of murder as distinct from a consciousness of guilt that might follow upon liability for manslaughter.

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140. I accept the submission of the appellants that the evidence as to the lies told by Mr Penza and the flight and attempts to avoid recognition by the police on the part of Mr Di Maria, were not capable of rationally affecting the assessment of the probability of the crucial fact in issue in these proceedings, i.e. whether the appellants were armed when they went to the deceased's house. This is because the evidence was not able to differentiate in any meaningful way between the scenario put forward by the Crown and the equally plausible scenario relied on by the appellants.

…

Ground of Appeal 4(a): The evidence relied on by the Crown to establish consciousness of guilt on the part of the appellants was inadmissible.

Ground of Appeal 4(b): The learned trial judge erred by directing the jury that they could engage in consciousness of guilt reasoning in relation to the appellants.

184. When considering this ground of appeal, it needs to be kept in mind that the evidence of the lies told by Mr Penza and of flight and attempts to avoid apprehension by Mr Di Maria, was admitted without objection. It should also be noted that although defence counsel had opened to the jury as to what their cases would be, this evidence was adduced before Mr Di Maria gave his evidence.

185. The appellants submitted, by reference to the statements of principle in R v Ciantar, Martinez v WA and Edwards v The Queen previously set out ([137] - [139]), that the evidence of consciousness of guilt relied on against the appellants was not admissible because it was not capable of distinguishing between a consciousness of guilt which might reasonably follow from the murder of the deceased and that which might follow from the scenario described by Mr Di Maria, i.e. an attempted drug theft culminating in the death of the deceased. The appellants submitted that the evidence was inadmissible because it was not relevant in the sense that it was not capable of rationally affecting the assessment of the probability of a fact in issue in the proceedings.

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191. It seems to me that care has to be taken when applying her Honour's fifth principle. On the facts in Cook, it was clearly applicable. There are, however, limits to its applicability. It does not mean that in any case where there was evidence of consciousness of guilt with regard to a major crime, and the accused accepted that he or she had committed a minor crime that therefore evidence of consciousness of guilt would be inadmissible. If there is a logical connection between the actions relied upon as evidencing a consciousness of guilt and the offence in respect of which that evidence is adduced, I would regard the evidence as admissible.

192. In my opinion, such a logical connection existed here. On either scenario, the actions of the appellants were motivated by their knowledge of the death of the deceased and the part they had played in the occasioning of his death. It was a quintessential jury question as to whether it considered, as the Crown invited, that it was more consistent with them having committed the offence of murder. It is also not without significance that no objection was taken to the evidence on the basis of inadmissibility. I have concluded that the evidence was admissible.

Campbell J

203. I have had the great advantage of reading the judgment of Hoeben JA in draft. With the exception of that aspect of Ground 4 dealt with by his Honour from [194] to [198], with great respect, I agree with his Honour's reasons and with his orders…

Button J

227. I respectfully agree with Hoeben JA about grounds two to four, except for the following. I prefer to adopt the approach of Campbell J of not seeking to resolve the question of the circumstances in which a trial judge should exercise the discretion to exclude evidence pursuant to s 137 of the Evidence Act 1995 in the absence of an application to do so. I adopt that approach for the reasons given by Campbell J.

French CJ, Kiefel, Bell, Keane and Gordon JJ

1. On 15 July 2014, following a trial in the Supreme Court of Queensland before Byrne SJA and a jury, the respondent was found guilty of the murder of his wife, Allison Baden-Clay.

…

5. The respondent gave evidence at his trial. He denied that he had fought with his wife, killed her and disposed of her body. The respondent's evidence did not support the hypothesis held by the Court of Appeal to be consistent with the respondent's innocence on the charge of murder. The hypothesis on which the Court of Appeal acted was not available on the evidence; and so the Court of Appeal was wrong to conclude that it was unreasonable for the jury to find on the whole of the evidence that the deceased's death at the respondent's hands was intentional.

…

37. In relation to the disposition of the case by the Court of Appeal, it is as well not to attempt to paraphrase their Honours' reasons. As to the respondent's evidence that he had no involvement at all in the death of his wife, their Honours observed:

"The jury could properly have rejected every word [the respondent] said as a lie. But that would, with the exception of his explanation of the scratches on his face, have done nothing to advance the Crown case. Conclusions that he had lied in that regard and that he had taken steps to dispose of his wife's body were properly to be taken into account, as evidence of a consciousness of guilt, in the context of all the evidence in the case. But the lies, or the lies taken in combination with the disposal of the body, would not enable the jury to draw an inference of intent to kill or do grievous bodily harm if there were, after consideration of all the evidence, equally open a possibility that all of that conduct was engaged in through a consciousness of a lesser offence; in this case, manslaughter."

38. The Court of Appeal went on to hold that the evidence of the respondent's post-offence conduct, including his lies, was indeed "intractably neutral" as to whether his wife's homicide was intended or not and that there was a reasonable hypothesis consistent with innocence of murder which the jury could not, acting reasonably, reject. Their Honours explained:

"[W]hile findings that [the respondent] lied about the cause of his facial injuries and had endeavoured to conceal his wife's body should not be separated out from the other evidence in considering their effect, the difficulty is that, viewed in that way, the post-offence conduct evidence nonetheless remained neutral on the issue of intent. To put it another way, there remained in this case a reasonable hypothesis consistent with innocence of murder: that there was a physical confrontation between [the respondent] and his wife in which he delivered a blow which killed her (for example, by the effects of a fall hitting her head against a hard surface) without intending to cause serious harm; and, in a state of panic and knowing that he had unlawfully killed her, he took her body to Kholo Creek in the hope that it would be washed away, while lying about the causes of the marks on his face which suggested conflict."

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45. The respondent submitted that, while the Court of Appeal held that the respondent's lies concerning his affair with Ms McHugh, the scratches to his face, and the steps taken by him to dispose of the body were "properly to be taken into account as evidence of a consciousness of guilt, in the context of all the evidence in the case", that evidence was neutral on the question of whether the respondent was guilty of murder or manslaughter. It was said that the Court of Appeal properly concluded from the totality of the evidence that the hypothesis of guilt of an unintentional unlawful killing was open.

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72. The respondent's false denials to police about his ongoing affair, his suggestion to Ms McHugh that she should "lie low", and his enquiry of her as to whether she had revealed the affair to the police were all capable of being regarded by the jury as evidencing a strong anxiety to conceal from police the existence and true nature of his affair with Ms McHugh. This anxiety could reasonably be seen as indicative that, in his mind, the affair and the killing were inter-related, and that the killing was not an unintended, tragic death of his wife, but an intentional killing.

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76. It was open to the jury, in this case, to regard the lengths to which the respondent went to conceal his wife's body and to conceal his part in her demise as beyond what was likely, as a matter of human experience, to have been engendered by a consciousness of having unintentionally killed his wife.

77. However, even if the evidence of post-offence conduct were neutral on the issue of intent, that alone would provide no basis to conclude that the reasonable hypothesis relied upon by the Court of Appeal was open on the evidence led at trial. To so conclude is to adopt an impermissible "piecemeal" approach to that evidence. All of the circumstances established by the evidence were to be considered and weighed, not just some of them.

Bathurst CJ. RA Hulme and Beech-Jones JJ

1. On the morning of 18 July 2009, police were called to attend a four‑bedroom home on Boundary Road, North Epping, a suburb in the north east of Sydney. On the second floor of the home they were confronted with a scene of unspeakable brutality. Spread across three bedrooms were the bludgeoned bodies of five members of the Lin family: Min (Norman) Lin and his wife Yun Li (Lily) Lin, Lily’s younger sister Yun Bin (Irene) Lin, and Min and Lily’s two sons, Henry Lin and Terry Lin. At the time of their deaths, Henry and Terry were aged 12 years and 9 years respectively. Their 15‑year‑old sister, Brenda Lin,  was not home. She had travelled to New Caledonia on a school excursion.

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49. In relation to the third step, namely demonstrating that the appellant was that sole killer, the Crown relied on twelve circumstances.

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62. The tenth circumstance that the Crown relied on was surveillance evidence of the appellant destroying shoeboxes on the night of 6 May 2010. This occurred immediately after Kathy Lin appeared at the NSW Crime Commission, during which she was told by investigators of their belief that the killer had been wearing ASICS shoes in the appellant’s size. The surveillance footage showed the appellant, later that night, cutting up shoeboxes into pieces, soaking them in a bucket of water and then flushing them down the toilet. [108] The appellant admitted that was what he was doing in the footage. [109] The Crown contended that this evinced a consciousness of guilt. [110] This and the next matter are relevant to Ground 5(a).

63. The eleventh matter the Crown relied on was the appellant’s interactions with Witness A, which were also said to evince a consciousness of guilt. [111] This included recorded conversations in which the appellant accepted offers from Witness A to obtain inside information from a supposedly corrupt official involved in the police investigation. For example, one of the recorded conversations took place on 13 October 2012 and involved Witness A discussing with the appellant the possibility that inside information could be procured as to whether the prosecution had obtained incriminating CCTV footage. [112] Witness A referred to the possibility of the prosecution obtaining footage of the appellant travelling to the grandparents’ house on the morning of 18 July 2009. [113] Later, Witness A refers to the appellant preparing something to respond to any CCTV footage or having it “removed”…

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64. The Crown contended that this and the balance of the conversation was an implied admission by the appellant that he disposed of the murder weapon when he collected the grandparents on the morning of 18 July 2009.

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75. It was submitted that the appellant’s ownership of “ASICS Gel Evation II” shoes was not incriminating, in circumstances where many other people in Australia had also purchased those shoes (or had purchased the other two ASICS models that had also used that sole pattern).  The defence case was that the appellant had destroyed the shoeboxes not out of a consciousness of guilt but out of a fear of being framed.

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PART 8: Ground 5 – Consciousness of Guilt

466. Ground 5 of the appeal contends that a miscarriage of justice resulted from the direction given to the jury in relation to the appellant's alleged consciousness of guilt. In particular it was contended that:

(a)   The trial judge failed to give an adequate warning about the possible conduct of innocent people; and

(b)   The summary of relevant factual matters was unbalanced in favour of the Crown.

467. The appellant referred to the Crown relying upon three bodies of evidence as giving rise to an inference of consciousness of guilt:

The appellant's conduct in various respects on 18 July 2009.

The appellant's destruction of shoeboxes in May 2010.

The appellant's discussions with Witness A about a "Plan B".

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498. Simpson J endorsed the need for hypothetical explanations to be given for seemingly incriminating post-offence conduct in R v Cook (at [52]):

"The direction on how the jury could make use of the evidence of flight is fundamental. The direction should be given, in hypothetical terms, even where there is no evidence of an alternative explanation. Where there is actual evidence of any alternative explanation, that evidence should be drawn to the jury’s attention, and the way it is to be assessed should be explained." (emphasis added)

499. There is uncertainty as to whether her Honour meant to convey that a direction in hypothetical terms should be given in all cases regardless of whether there is an alternative explanation. This arises because of ambiguity in the second and third sentences. The use of "even where" in the second sentence may suggest the direction should be given in hypothetical terms regardless of whether there is evidence of an alternative explanation. If that is what her Honour meant, the use of "even where" would be more logical if the balance of the sentence was in the positive rather than the negative (ie, even where there is evidence of an alternative explanation). On the other hand, the third sentence would fit more logically if the word "even" did not appear in the second sentence (ie, the direction should be given in hypothetical terms where there is no evidence of an alternative explanation and it should be given by reference to any alternative explanation where there is one). We consider it most likely that her Honour intended to convey the first of those possible interpretations.

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506. It is necessary to make an observation about the cases which suggest a need for hypothetical explanations to be given. As indicated earlier, the purpose of providing them is to illustrate and emphasise the essential aspect of the direction to be given to a jury: people may conduct themselves in a way that might suggest a consciousness of guilt but in reality such conduct may be prompted by something else. The purpose is to avoid the jury jumping to the erroneous conclusion referred to by Gleeson CJ in Heyde v R as "one which people not infrequently make".

507. "Panic" is often cited as a hypothetical example but where there is no urgency attending the conduct it may be inapt, as it may be where the conduct is not momentary but engaged in over an extended period. Even where panic might be apt, it is devoid of meaning unless the reason for the panic is provided. People usually do not panic without reason. In this context, what might often be the cause is fear of being unjustly accused. Consuming alcohol after a motor vehicle collision because of a condition of alcohol dependence in a crisis was suggested in R v Ciantar. If this did not have a foundation in the evidence, providing that as a hypothetical explanation would be to invite the jury to engage in baseless speculation about whether such a condition afflicted the accused.

508. The suggestion in R v Cook of directing a jury that the conduct does not point to "some other offence or discreditable conduct" may risk a jury speculating, potentially to the prejudice of the accused, about what conduct of that description the accused may have engaged in.

510. It is apparent that care is needed whenever a trial judge directs a jury in relation to post-offence conduct from which an inference of consciousness of guilt may arise. There is a need to be wary that any hypothetical explanation given is one that might reasonably arise from the facts and circumstances of the case.

511. A further difficulty with a trial judge giving hypothetical explanations to a jury arises in cases where the accused provides an actual explanation. Trial judges need to be careful not to diminish the force of, or detract completely from, the explanation relied upon by the accused. There is a risk that where the actual explanation is something quite specific and unique, it may be made to sound absurd if a judge were to suggest that people in general might behave in the same way. There is also a need for a judge to avoid any appearance of becoming an alternative advocate for the defence.

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514. It is evident from the written directions  which have been set out in full earlier that the trial judge gave the jury in clear terms the essential direction required by Edwards v The Queen, that is to say that the conduct in question "cannot rationally be explained other than by the accused's self-conscious awareness that he had murdered the deceased". Her Honour also put it the other way around in directing that if the conduct "might reasonably be explained for reasons unrelated to a self-conscious awareness of guilt (etc) then you could not draw the inference that the Crown contends for".

515. When dealing directly with the shoebox destruction issue, the trial judge commenced by describing the Crown's submission as being that "there is no rational innocent explanation" for the conduct other than a belief by the accused that evidence of the shoeboxes would incriminate him. This reinforced the direction she had previously given orally and in writing, that it was a mandatory prerequisite for the evidence to be construed in the way the Crown contended and that there be "no rational innocent explanation". The case for the appellant was that such an explanation existed and the jury was reminded of it: "the accused's conduct in destroying the shoeboxes you would consider as not supporting an inference of guilt, but as a response to being falsely accused of murder".

516. The direction it is now suggested the trial judge should have given includes that "people do not always act rationally" and the possible alternative explanations for destruction of the shoeboxes were "panic" or "to escape an unjust accusation". As just noted, however, escaping an unjust accusation was the accused's actual explanation so it could not have been given as a hypothetical one. "Panic" could only be pertinent if it was the cause of the appellant wanting to escape an unjust accusation, so that did not add anything and the suggestion that "people do not always act rationally" does not sit comfortably with the actual explanation; a deliberate, considered attempt to avoid an unjust accusation. Characterising it as rational or irrational would not have been helpful.

517. In relation to the Plan B issue, again the trial judge directed the jury in direct terms that they must "consider whether the accused's words and conduct might be rationally explained for reasons inconsistent with displaying an awareness of his guilt". Her Honour proceeded to summarise the dispute between the parties as to the factual elements of this issue. Her Honour concluded by referring the jury back to her general directions on the subject of consciousness of guilt, including the written directions.

518. The direction it is now suggested the trial judge should have given again includes that "people do not always act rationally" and the possible alternative explanations are "fear" or "escape an unjust conviction". The suggestion of irrationality does not fit well as a possible explanation for conduct that comprised several components and occurred over a period of time. No actual alternative explanation was advanced in the defence case, no doubt because the conduct in the respects relied upon by the Crown was disputed. No hypothetical alternative explanation was suggested to the jury by the trial judge. The hypothetical explanation the appellant suggested in this Court should have been given by the trial judge, would have had a real tendency to undermine the defence case of denial of the primary conduct. We accept the submission by the Crown that this was a judgment call best left to be made by those in tune with the atmosphere of the trial, namely counsel and the trial judge.