Allami v The State of Western Australia
[2013] WASCA 230
•3 OCTOBER 2013
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: ALLAMI -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 230
CORAM: McLURE P
BUSS JA
HALL J
HEARD: 15 AUGUST 2013
DELIVERED : 3 OCTOBER 2013
FILE NO/S: CACR 292 of 2012
BETWEEN: SAFAA ALLAMI
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :McKECHNIE J
File No :INS 175 of 2011
Catchwords:
Criminal law - Appeal against conviction - Attempted murder - State relied partly on direct evidence and partly on circumstantial evidence - Appellant's flight from the scene of the crime - Whether the trial judge misdirected the jury on the use it could make of the appellant's flight
Legislation:
Criminal Code (WA), s 283, s 294, s 297(1)
Result:
Leave to appeal refused
Appeal dismissed
Category: A
Representation:
Counsel:
Appellant: Mr S Vandongen SC & Mr S Nigam
Respondent: No appearance
Solicitors:
Appellant: S C Nigam & Co
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Banks v The Queen [2003] WASCA 198
Broadhurst v The Queen [1964] AC 441
Civello v The State of Western Australia [No 2] [2008] WASCA 163
Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193
Hedgeland v The State of Western Australia [2013] WASCA 97
Martinez v The State of Western Australia [2007] WASCA 143; (2007) 172 A Crim R 389
McKey v The Queen [2012] NSWCCA 1
NAD v The State of Western Australia [2013] WASCA 2
Nestorov v The Queen [1999] WASCA 303
Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316
R v Ciantar [2006] VSCA 263; (2006) 16 VR 26
R v Hartwick [2005] VSCA 264; (2006) 14 VR 125
R v Jeffrey (1991) 60 A Crim R 384
R v Konstandopoulos [1998] 4 VR 381
McLURE P: I agree with Buss JA that leave to appeal should be refused, the sole ground of appeal not having any reasonable prospects of success. These are my reasons for that conclusion. The relevant background is detailed in the reasons of Buss JA.
The appellant contends that the trial judge erred in failing to direct the jury that, in relation to the appellant's post‑offence conduct (compendiously referred to in these reasons as the 'flight evidence'), it had to consider whether there were explanations for that conduct other than consciousness of guilt of the crime with which the appellant was charged. That formulation covers the possibility of both one or more innocent explanations for the conduct as well as consciousness of guilt of a lesser, alternative charge. That is, the appellant contends the trial judge erred in failing to give a modified Edwards direction (Edwards v The Queen (1993) 178 CLR 193).
The claim is for a modified Edwards direction because post‑offence conduct differs from lies in a material respect. Ordinarily, lies are relevant and admissible as evidence going to the credit of the person whose evidence is challenged at trial. It is only in exceptional circumstances that lies are capable of being relevant to a fact in issue (or a fact relevant to a fact in issue) in a criminal trial. By contrast, flight evidence is ordinarily relevant to a fact in issue. The risk in relation to flight evidence is that the jury may accept it as consciousness of guilt without considering whether there are, or may be, other explanations for the conduct.
The written and oral submissions put on behalf of the appellant did not condescend to particulars of the flight evidence in question. There were two different types of evidence on that subject at the appellant's trial. First, there was the direct evidence of the appellant in covertly recorded conversations he had with his friend, Mr Elyas Ali, in which the appellant made express admissions of guilt and in that context, discussed leaving the jurisdiction. Second, there was the circumstantial flight evidence which included leaving the scene of the crime and purchasing an airline ticket to Brisbane.
The prosecution made it clear in its opening and thereafter that the central plank of its case was the express admissions made by the appellant to Mr Ali. The appellant is heard to say that he stabbed his brother (the victim), that he intended to kill him and that if the opportunity arose, he would do it again (ts 826).
The prosecutor also said in opening that following the appellant's express admissions and after he became aware of the victim's condition, the appellant and Mr Ali talked about 'the consequences of [the appellant's] actions; in other words, they start talking about ... [the appellant] leaving the jurisdiction' (ts 823). The prosecutor continued:
The State says that that's significant because that indicated that [the appellant] knew that he was in trouble. He knew that he had to get away from the police because if he didn't it was a matter of time, and the State says that he then acted to put that plan into effect (ts 824).
The appellant contends that the quoted statement demonstrates that the prosecution relied on the flight evidence as consciousness of guilt. The appellant also relies on two passages in the summing up to support his claim that the jury would have understood the prosecution to be relying on the flight evidence as consciousness of guilt. In the first passage, the trial judge said:
The prosecution suggests that the accused made efforts to stay away, to avoid police, not out of fear of retribution but out of fear of the consequences of what he had done, and points to the next day getting a one‑way ticket to go to Brisbane and that no other tickets were purchased (ts 1457).
The second passage is in the summing up relating to the defence answer to the flight evidence which was that the appellant was going to Brisbane to meet his uncle and prepare the way for the appellant's family who were leaving this State to escape retribution, not that the appellant was going to avoid detection by the police (ts 1458).
At no stage did the prosecutor or the trial judge expressly refer to the flight evidence as being evidence of a consciousness, or implied admission, of guilt. However the flight evidence was relied on by the prosecution as probative of the truth of the express admissions and of the appellant's guilt. It can be accepted for the purpose of this application that it is evidence of consciousness of guilt. However, that is not sufficient to justify the grant of leave in the circumstances of this case.
The appellant and his brothers (including the victim) gave evidence at trial. The defence case was that the appellant did not stab the victim and that his admissions to Mr Ali were an untruthful invention made for the purpose of preventing the actual offenders from visiting retribution on his family. The victim was a gang member who had reason to fear for his safety. The defence relied on the flight evidence to support the appellant's claim that he and his family feared retribution from the actual perpetrators of the crime.
Reading the summing up as a whole, the jury could have been left in no doubt that (1) the central plank of the prosecution case was the appellant's conversations with Mr Ali which was direct evidence not circumstantial evidence; (2) the other evidence relied on by the prosecution (including the flight evidence) was circumstantial evidence; (3) the circumstantial evidence was equivocal in that it was capable of supporting both the prosecution case and the defence case; (4) the circumstantial evidence could not support an inference of guilt beyond reasonable doubt and was not relied on by the prosecution for that purpose; (5) the appellant could only be convicted if the jury rejected the defence evidence and if guilt was the only inference that could be drawn from the direct and circumstantial evidence as a whole; (6) in effect, the jury could not convict unless they accepted as truthful the express admissions of guilt in the direct evidence of the appellant.
The directions left no room for the jury to make a leap in reasoning from the flight evidence to a consciousness, or implied admission, of guilt. That is, the directions given by the trial judge obviated and averted the risk which would otherwise be neutralised by a modified Edwards direction. In the unusual circumstances of this case, I cannot conceive of any vaguely sensible additional innocent explanations for the flight evidence beyond that relied on by the defence. None were suggested.
Further, there is no merit in the appellant's claim that post‑offence conduct cannot be relied on as consciousness, or an implied admission, of guilt unless the inference is proven beyond reasonable doubt: Edwards v The Queen (210).
The appellant also contended that the trial judge erred in failing to direct the jury to consider whether the flight evidence was explicable on the basis that the appellant believed he had committed a lesser offence (ts 11).
The trial judge left two alternative, lesser, offences to the jury. They were doing grievous bodily harm with intent to do grievous bodily harm contrary to s 294(1) of the Criminal Code (WA) (the Code) and unlawfully doing grievous bodily harm, contrary to s 297(1) of the Code.
The appellant relied on the decision of the Victorian Court of Appeal in R v Ciantar [2006] VSCA 263. The Court said that in cases where alternative offences are open on the evidence 'the jury may have to be
alerted to the fact that, before they can treat the post‑offence conduct ... as proof of guilt of the offence they are then considering, they must be satisfied, having regard to all the evidence, that a consciousness of guilt of such "other offence" does not provide a possible reasonable explanation' for the conduct [78]. The proposition is not stated to apply in all cases. It does not apply in the circumstances of this case, which are not materially distinguishable from those in Banks v The Queen [2003] WASCA 198 (special leave refused).
In this case the defence conceded that the victim suffered grievous bodily harm as a result of the multiple stab wounds inflicted on him. Otherwise, the remaining elements of the charge of attempted murder and the alternative charges were in issue. An element common to all offences was that the appellant stabbed the victim. That was denied and a positive case was advanced by the defence. Thus multiple matters were in issue in this case, as in Banks.
After discussing the evidence, the prosecution and defence cases, and directing that the direct and circumstantial evidence be considered as a whole, the trial judge directed the jury as follows:
If, having clinically examined the evidence, there remains in your mind reasonable doubt as to the guilt of the accused on any of the counts that are open, then it is your duty to acquit him, bring in a verdict of not guilty. If, after that examination, you are satisfied beyond reasonable doubt that the State has established that he is guilty, then you may return a verdict of guilty on that charge that you are considering (ts 1459).
Where, as in this case, the jury is directed that the flight evidence is itself incapable of supporting a finding of guilt and is relied on as part of the evidence as a whole, it would be wrong in principle to direct the jury to consider that evidence in isolation to assess whether the reason for the post‑offence conduct is a belief that the accused had committed a different, lesser offence. The trial judge's direction to consider the whole of the evidence in determining the appellant's guilt of the charge(s) under consideration was the correct approach.
BUSS JA: The appellant was convicted, after a trial in the Supreme Court before McKechnie J and a jury, on one count in an indictment which alleged that on 12 October 2010, at Cloverdale, the appellant attempted unlawfully to kill his brother, Ali Allami, contrary to s 283(1) of the Criminal Code (WA) (the Code).
The appellant has applied for leave to appeal against his conviction.
The State's case at trial
The State's case at trial was, relevantly, as follows.
On 12 October 2010, the appellant, his mother, his sister and his two brothers (Sajjad Allami and the complainant) resided at 18 Sutherland Way, Cloverdale.
On 12 October 2010, at this place of residence, the complainant was stabbed once in the right chest area, five times in the right back or shoulder area, once in the right flank area and once near his right ear.
At about 12.00 noon on that day, a neighbour telephoned the police and other emergency services. The neighbour reported that there were three men in the front yard at 18 Sutherland Way and one of them appeared to be injured.
At about 12.07 pm, the police and other emergency services arrived at 18 Sutherland Way. The complainant was slumped in the front doorway and Sajjad Allami was assisting him. The third man, who the State alleged was the appellant, was no longer at the property.
The State contended that a fight had occurred inside the house. Broken household items and the complainant's blood were found in the lounge room.
The State alleged that, on 12 October 2010 at about 12.07 pm, the appellant had left 18 Sutherland Way in his motor vehicle. He drove to the house of a friend, Elyas Ali, in Carlisle, arriving at about 12.28 pm. Mr Elyas Ali was not at home, but his mother and his mother's partner, Tadesse Buli, were there.
It was not in dispute that the appellant went to a funeral with Mr Buli. The funeral finished at about 5.00 pm. During this period the appellant received three telephone calls from his mother. The calls were lawfully recorded by a listening device. The mother asked the appellant what had happened at their family home. He did not answer her questions.
It was also not in dispute that after the funeral the appellant returned to Mr Elyas Ali's house and asked for and was provided with clothes. The State contended that he asked for the clothes because the clothes he was wearing had the complainant's blood on them. The appellant changed into the new clothes and went with Mr Elyas Ali to a gymnasium in Carlisle. During this journey the appellant told Mr Elyas Ali that he had stabbed the complainant. The appellant said he had attacked the complainant because the complainant had sworn at the Prophet Muhammad. The conversation was lawfully recorded by a listening device. The State alleged that the confession was true.
After attending the gymnasium, the appellant and Mr Elyas Ali travelled in the appellant's vehicle to fast food outlets and then to a friend's house. They remained with the friend for a few hours.
The appellant and Mr Elyas Ali returned to Mr Elyas Ali's house. During this journey they discussed the consequences of the appellant's actions, including whether the appellant should leave the State. Upon arrival at Mr Elyas Ali's house, Mr Elyas Ali gave the appellant a bundle of money which the State alleged was to fund the appellant's escape from the jurisdiction.
The appellant left Mr Elyas Ali's house and drove, alone, to a mosque in Clarkson. He planned to sleep at the mosque. However, the mosque was closed and, instead, he spent the night in his vehicle.
The following morning, 13 October 2010, the appellant met his mother and they purchased a one‑way airline ticket for him from Perth to Brisbane. The State contended that this was the beginning of a more extensive trip, the purpose of which was to enable the appellant to leave Western Australia to avoid apprehension by the police. During the morning the appellant made two telephone calls in which he informed friends that he was leaving Perth.
On 13 October 2010, at about 6.53 pm, the appellant was arrested by police while he was using a public telephone near a mosque in William Street, Perth.
The State alleged that the appellant did not return to the crime scene, even though it was his home, after the complainant was stabbed.
The appellant's case at trial
The appellant's case at trial was, relevantly, as follows.
The appellant gave sworn evidence at trial. Defence counsel called the complainant and Sajjad Allami as witnesses.
The complainant said the appellant did not stab him. Sajjad Allami said he did not see the appellant stab the complainant.
The appellant's case was that he had invented the confession to Mr Elyas Ali. He had uttered the words in question for the purpose of protecting his family from further retribution by the person or group of people who had attacked the complainant. The appellant and his siblings were born in Iraq and settled in Australia when he was a boy. The appellant believed that if Mr Elyas Ali told others in his community about the confession then his family would be safe from any further attacks.
The appellant and the complainant gave evidence about the complainant's lifestyle as at October 2010. At that time, the complainant was a member of the Scorpion Boys Street Gang. As a result of his association with this gang, and his related activities, it was common for people to attend at the appellant's house for the purpose of threatening, harassing and assaulting the complainant.
The appellant gave explanations in his evidence for his flight from the scene of the crime and the purchase of a one‑way airline ticket.
The appellant said that, before the police and other emergency services arrived at 18 Sutherland Way, he had been inside the house and had heard a noise. He went outside to investigate and saw the complainant lying on the ground. He looked down the road and saw a Caucasian male running away. The appellant believed that this Caucasian male may have been involved in the attack on his brother. He drove from the house in his vehicle with the intention of following the Caucasian male.
The appellant said that, shortly after leaving the house, he saw a marked police car, with its sirens activated, pass him. At this stage, he had lost sight of the Caucasian male. He did not return to the house because he was concerned that, if he spoke to the police, the person or group of people who had attacked the complainant would retaliate against his family.
At this point, the appellant devised a plan. It involved driving to the house of his friend, Mr Elyas Ali, spending the day with him and convincing him that he (the appellant) had been responsible for stabbing the complainant.
The appellant explained that several days before the incident he had arranged to attend a funeral. His culture required him to attend the funeral and pay his respects to the deceased. Hence, he went with Mr Buli to the funeral that afternoon.
The appellant maintained that, after his gymnasium session with Mr Elyas Ali, he returned to 18 Sutherland Way to speak with his (the appellant's) mother. His mother told him that she wanted the family to relocate to Brisbane. The appellant had an uncle who lived in Brisbane. The idea was they would live with him. The mother wanted to relocate so the family would be safe from any further attacks. Initially, the appellant was opposed to the idea but, after arguing with his mother, he decided the family would be safer if they were not living in Western Australia. The appellant arranged with his mother to go to a travel agent the following morning, 13 October 2010, and purchase airline tickets for the family.
After the conversation with his mother, the appellant drove to a mosque in Clarkson. He said he went to the mosque to sleep. His mother had told him not to return to the house at 18 Sutherland Way. Upon arrival at the mosque, the appellant discovered it was closed. It was too late to travel to a friend's house and he therefore decided to sleep in his vehicle.
The following morning, 13 October 2010, the appellant and his mother went to a travel agent in Northbridge. He said they initially attempted to book a ticket to Brisbane for three people on a flight leaving later that day. These tickets were intended for the appellant, his sister and his younger brother. However, the travel agent informed them that there was only one ticket to Brisbane available for that day. The appellant purchased this ticket for himself. The plan was for the appellant to go to Brisbane and request his uncle to travel to Perth and assist the rest of the family to relocate.
The travel agent from whom the appellant had purchased his ticket, Bassem Alrubaei, gave evidence that the appellant and his mother had endeavoured to purchase three tickets to Brisbane, but only one ticket was available. He also gave evidence that the mother had told him the tickets were for the appellant and another son and her daughter and that she wanted them to travel to Brisbane together on the same flight later that day.
The prosecutor's opening address at trial
The prosecutor told the jury in his opening address that the 'central plank' in the State's case was the confession made by the appellant to Mr Elyas Ali. He said the other evidence (that is, the forensic evidence and the circumstantial evidence) 'sits around those admissions' (ts 826). The prosecutor elaborated:
[T]he evidence of the scuffle in the house; the evidence of [the appellant] leaving shortly before the police arrived but after the emergency service call had been made; the evidence of the flight to Brisbane all sits around his admissions to Elyas Ali that 'I stabbed my brother' (ts 826).
Earlier in his opening address, the prosecutor had said the discussion between the appellant and Mr Elyas Ali about the appellant leaving the State was significant because it indicated that:
[The appellant] knew that he was in trouble. He knew that he had to get away from the police because if he didn't it was a matter of time, and the State says that he then acted to put that plan into effect (ts 824).
Defence counsel's opening address at trial
At trial, defence counsel elected to give an opening address about the appellant's case. See s 143(2) of the Criminal Procedure Act 2004 (WA). The opening statement contained a detailed explanation of the evidence, including the evidence of the appellant's post‑offence conduct, relied on by the State. Defence counsel said:
Now, the smoking gun, as it were, that the State relies upon is this recorded conversation between [the appellant] and Elyas Ali. That is the most important piece of the State's case ...
[The appellant] says he said those things to his friend because he wanted to protect his family ...
He was born in Iraq, one of five children. When he was eight or nine his mother fled Iraq with the five children because the government imprisoned his father and they feared retribution. [The appellant] doesn't trust police, he doesn't trust authorities and that's something that comes with him because of his background.
On 12 October in 2010 he was at home. At some time around 12 o'clock he walks out of his bedroom and he sees his youngest brother helping his oldest brother, [the complainant], the man who was stabbed, outside at the front door. He sees that [the complainant] has been stabbed and he's standing there quite shocked, not really knowing what to do. His younger brother, Sajjad Allami, is helping him. Someone has called out ... for an ambulance and there's some discussion about that and at some point in time Sajjad Allami goes into the house.
[The appellant] then goes and checks on his brother ...
At that point in time he knows his youngest brother is caring for his oldest brother and he decides to see if he could find out who had done it or if there was anyone in the street who could have stabbed his brother, and he walks up the driveway. As he walks up the driveway he ... sees someone who he thinks might be involved in this so he goes and gets in his car and drives down there.
... as he gets down towards that end of the street near the park he literally drives past a police car attending his house and that's the point in time when he gets scared, that's the point in time that he thinks, 'I've got to protect my family'.
You see, [the appellant] believes that the attack on his brother, [the complainant], came because of [the complainant's] lifestyle. At the time, in 2010, [the complainant] was involved in organised crime. At the time, in 2010, [the complainant] was a member of the Scorpion Boys street gang and he actually owed quite a large drug debt to people. ...
...
... it's not the defence case that [the appellant] simply says, 'I was there and I didn't do it', but what we are saying is there's actually real tangible evidence here which indicates that the threat and the attack on [the complainant] came from someone else. It's in that environment or in those circumstances that there's fear of retribution to the family. [The appellant] doesn't want whoever it is to know that they spoke to the police because that could bring further retribution to the family.
...
The circumstantial evidence that the State also relies upon. The leaving of the scene - well, [the appellant] says that he was going to see if this person down the street was involved and got scared when the police got there. Understanding or considering it from his point of view, it's understandable that he doesn't want the attacker to know that they're speaking to police because he doesn't want further retribution on himself or the family. He goes to Elyas Ali's house.
...
Going to the gym. We've heard about that as well and, you know, the State says that's circumstantial evidence that he was trying to stay away. Well, he was going to the gym because he's trying to convince his friend Elyas Ali of the story that he has told so Elyas can then disseminate that amongst their known friends.
Not going home. Well, he's told not to go home by his mum - and you'll hear some calls in relation to that.
Sleeping out. He's told by his mum not to come home.
...
The flying to Brisbane. Well, his mum ordered him to go to Brisbane. You will even hear from the travel agent that they went to that they asked for three tickets, for him and his other two siblings. So this isn't fleeing. This is going and seeing your uncle in Brisbane to help relocate the family because [the complainant's] life has brought serious, serious consequences and it's brought threats to the family.
So we say when you consider what the State wants you to believe in light of what was happening in and around [the appellant's] life and his family at the time, that their case doesn't seem to have the same ring to it. It really doesn't seem to have that same strength that they would rely upon (ts 828 ‑ 830, 832 ‑ 833).
The prosecutor's closing address at trial
The prosecutor reiterated in his closing address that the material in the listening device recordings (in particular, the appellant's confession to Mr Elyas Ali) was the 'primary evidence' relied on by the State (ts 2).
He also maintained that the 'circumstantial evidence' supported the primary evidence.
The prosecutor invited the jury to reject the defence case:
The family members are here to tell you a story that suits the defence case. But it doesn't fit because firstly there's three stories and that doesn't fit. Secondly, the circumstantial evidence doesn't fit. Then you've got this reason or excuse for making the admissions in the car to Elyas Ali and that's what it is. The State says that the admissions to Elyas Ali in the car are the truth in this case, that everything you've heard from the defence witnesses is a reconstruction or alternatively it is an untruth about what happened. It's told to try and take you away from the admissions. The admissions that were made to a device in the car that he didn't know about. That's the importance of those admissions (ts 8).
According to the prosecutor, after the complainant was stabbed '[the appellant] did the only thing that was going to keep him away from the house and a police investigation ... [he] got in the car at 12.07 and he left' (ts 12).
As to the appellant's failure to return to 18 Sutherland Way when he arrived at Mr Elyas Ali's house and found that Mr Elyas Ali was not at home:
He arrives at Elyas Ali's house, asks for Elyas. Well, where else are you going to go when you're in trouble? You can't go home. That would be the first place; you just left that. You can go to your mate, a mate who had previously offered you money, previously offered you a place to stay, a good friend, a person you had known for a long time, trust. That's where you go.
Elyas wasn't there, so what has ... happened? He could have gone home, surely; back to where your brother was to see what is happening with him. Surely the plan can still be put in place later in the day. Find out when Elyas is coming home and tell him about your plan when he's home. No. Off to a funeral.
That one just doesn't make sense, does it? Your brother has been seen lying on the porch. You know his medical condition is dire. All right, you might have hatched this plan, you say. Elyas isn't home to spread the word to. What do you do? Go to a funeral? The State says he went to a funeral to stay away. Couldn't go home. Didn't want to go home. The police were there. Why? ... He knew that [the complainant] was still there when he left. He didn't know what [the complainant] was going to say. He had to stay away (ts 13 ‑ 14).
The prosecutor made this submission about the appellant's confession to Mr Elyas Ali and the purchase of the one‑way airline ticket:
He has already discussed with Elyas Ali leaving the country. Elyas is so convinced by this act that he wants to give him money to buy a plane ticket. So even when you get to that is Elyas unconvinced? No, he's convinced. He's going to put his hand in his pocket to give you a plane ticket. Get out of the country, man. This place is not for you. Why? Well, because of just what he's been told. The police will be after you. ...
...
No tickets were bought for the other two. Only one that was leaving Western Australia as a result of the retribution, retaliation, whatever it is, was [the appellant]. The State says that's indicative that there wasn't any retribution, retaliation. [The appellant] had to go because of what was known. By that stage the family knew what the police knew.
And so even the following morning - [the appellant] doesn't go home. All right? Say, well, 18 Sutherland Way, danger zone, don't go home. All right? That's one proposition that you might accept. Go to the sister's. Everyone else did. No, couldn't go there. Don't know why couldn't go there. They'd stayed there before was his evidence. Couldn't go there. Couldn't stay with Elyas. Elyas had offered him a bed; no. So head up to the Clarkson mosque. That's closed. Then say you're going to a mate's place; no, it's too late, so you sleep in the car. Why? Well, one inference you might take from that is because he didn't want the police getting anywhere near him. Because he knew the police wanted to talk to him ... (ts 21 ‑ 22).
The prosecutor concluded his submissions by asserting that if the jury accepted that the appellant's confession to Mr Elyas Ali was 'truthful, accurate and that it's supported by the circumstantial evidence then the State says there's one verdict open to you and that's guilty' (ts 23).
Defence counsel's closing address at trial
At trial, defence counsel's closing address mirrored in essence his opening statement.
The trial judge's summing up
The trial judge directed the jury on the elements of the offence of attempted murder (ts 1446 ‑ 1449).
His Honour also left for the jury's consideration the alternative offences of grievous bodily harm with intent, contrary to s 294 of the Code, and grievous bodily harm, contrary to s 297(1) of the Code (ts 1447 ‑ 1449).
The trial judge directed the jury that circumstantial evidence was part of the State's case but the evidence was not 'conclusive' (ts 1454). The jury could not conclude from the circumstantial evidence alone that the appellant was guilty (ts 1454). The State relied 'centrally' on the conversation between the appellant and Mr Elyas Ali as a 'truthful account' (ts 1454). That conversation was direct evidence (ts 1454). It was not circumstantial (ts 1454).
His Honour told the jury that the issue in the case was whether the jury could be satisfied that the appellant's confession to Mr Elyas Ali was a 'truthful account' (ts 1454). However, the State alleged that the circumstantial evidence supported, corroborated or confirmed the accuracy of the confession (ts 1454).
The trial judge explained to the jury the nature of circumstantial evidence (ts 1455). He also explained the nature of an inference (ts 1455).
His Honour gave the jury detailed instructions about the drawing of inferences as to the appellant's guilt from the direct evidence and the circumstantial evidence:
[W]hen, as in this case, circumstantial evidence is in part relied on by the prosecution you can only draw an inference of his guilt from the circumstances and the direct evidence if the only inference that you can draw is that he is guilty.
If at the end of examining all of the evidence you are left in a reasonable doubt about that or if the circumstances are such that do not support the prosecution case to an inevitable degree, then you could not safely draw an inference adverse to the [appellant]; but it is important to remember that it is quite proper for you and appropriate to look at the combined effect of all the circumstances.
A particular circumstance might lean one way or the other; it might well be equivocal, usually is. ...
So one circumstance by itself may be equivocal. You are entitled to view them all together but you are only entitled to draw an inference of guilt from the circumstances if that is the only available inference. If there is a hypothesis reasonably consistent with innocence, then it follows that you cannot be satisfied beyond reasonable doubt.
As I say, the circumstances alone in this case cannot prove the [appellant's] guilt but the prosecution doesn't suggest that they can. What the prosecution say is that the circumstances together with the admissions are sufficient for you to be satisfied beyond reasonable doubt not only that it was the [appellant] ... who stabbed his brother but also that he did so intending to kill him. He didn't succeed, but in a sense that was happenstance (ts 1456).
The trial judge summarised the State's case and the defence case.
As to the State's case on the appellant's flight, his Honour said:
The prosecution suggests that the [appellant] made efforts to stay away, to avoid police, not out of fear of retribution but out of fear of the consequences of what he had done, and points to the next day getting a one-way ticket to go to Brisbane and that no other tickets were purchased (ts 1457).
As to the defence case on the appellant's flight, his Honour said:
As to the flight, [the defence] says that the travel agent's evidence was that three tickets were to be bought, although in the event only one was, and it was logical that the oldest of the family, [the appellant], would be the one that would go to meet the uncle and prepare the way for the family and that the family were escaping retribution, not [the appellant] going to avoid detection by the police (ts 1458).
Defence counsel did not request any redirection or additional direction (ts 1461).
The proposed ground of appeal
The sole proposed ground of appeal is that the trial judge misdirected the jury in relation to the use it could make of the State's evidence of the appellant's flight from the scene of the crime and his purchase of a one‑way airline ticket.
The appellant's submissions
The essence of counsel for the appellant's submissions was that his Honour's failure to give the jury an 'Edwards‑type direction' in relation to the evidence of the appellant's flight from the scene of the crime, including the purchase of the one‑way airline ticket, occasioned a miscarriage of justice. See Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193.
In particular, it was submitted that:
(a)his Honour should have specifically warned the jury that a person may flee for reasons other than guilt; and
(b)his Honour should also have specifically warned the jury that before the evidence of flight could be used 'as consciousness of guilt, they must be satisfied beyond reasonable doubt that the appellant sought to flee to escape arrest for the offence of attempted murder'.
According to counsel for the appellant, in the absence of these warnings, there was a distinct danger that the jury may have 'improperly imputed a consciousness of guilt to [the appellant] and have used that evidence to conclude that [the appellant] was guilty'.
The merits of the proposed ground of appeal
In Edwards, the High Court distinguished between lies told by an accused which affect only his or her credit and lies told by an accused that are evidence because they constitute implied admissions against interest. Lies will constitute implied admissions if they are told out of a consciousness of guilt; that is, the accused told the lies because of a realisation of guilt and a fear of the truth.
An Edwards direction is ordinarily essential if the State relies on a lie told by the accused as evidence of his or her guilt. As Lord Devlin observed in Broadhurst v The Queen [1964] AC 441, 457, there is a natural tendency for a jury to think that, if an accused is lying, it must be because he or she is guilty. The rationale for giving an Edwards direction is the avoidance of a perceptible risk of a miscarriage of justice if the jury were to misuse the lie so as to make a finding of guilt by impermissible reasoning. There is no precise verbal formula for the direction. A trial judge should tailor the direction to the circumstances of the case. See R v Konstandopoulos [1998] 4 VR 381, 388 (Callaway JA, Winneke P & Kenny JA agreeing); Nestorov v The Queen [1999] WASCA 303 [11] (Kennedy J, Ipp J agreeing).
If an Edwards direction is required, the direction must ordinarily encompass the following:
(a)the lie must be precisely identified;
(b)the jury must be told that the lie will not be evidence against the accused unless the lie was deliberate;
(c)the jury must be reminded that there are many reasons why people tell lies, apart from the realisation of guilt;
(d)the jury must be told that it cannot use the lie as evidence against the accused if it accepts an explanation for the lie that is consistent with innocence;
(e)the jury must be told that the lie will not be evidence against the accused unless the lie was told out of a consciousness of guilt (that is, the accused knew that the truth would implicate him or her in the offence) and the lie reveals knowledge of the offence charged or some aspect of it; and
(f)the facts, events and circumstances relied on by the State to indicate that the lie constitutes an admission against interest must be precisely identified.
See Edwards (209 ‑ 211); Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316 [42] fn (83) (Gaudron & Gummow JJ); R v Hartwick [2005] VSCA 264; (2006) 14 VR 125 [94], [113] (Charles, Chernov & Nettle JJA); R v Ciantar [2006] VSCA 263; (2006) 16 VR 26 [81] ‑ [85] (Warren CJ, Chernov, Nettle, Neave & Redlich JJA); Martinez v The State of Western Australia [2007] WASCA 143; (2007) 172 A Crim R 389 [275] ‑ [285] (Martin CJ, Steytler P & Miller JA); Hedgeland v The State of Western Australia [2013] WASCA 97 [86] (Buss JA, Martin CJ agreeing).
It is legitimate for the State to rely upon an accused's post‑offence conduct (for example, flight from justice) in support of its case. See Ciantar [44] ‑ [45]; McKey v The Queen [2012] NSWCCA 1 [26] (Latham J, Whealy JA & Hislop J agreeing); NAD v The State of Western Australia [2013] WASCA 2 [71] (Buss JA, McLure P & Mazza JA agreeing).
In Wigmore on Evidence (Chadbourn rev 1978), vol 2, § 276(4), the admissibility of flight from justice as evidence of consciousness of guilt is discussed:
Flight from justice, and its analogous conduct, have always been deemed indicative of a consciousness of guilt. ...
It is universally conceded today that the fact of an accused's flight, escape from custody, resistance to arrest, concealment, assumption of a false name, and related conduct, are admissible as evidence of consciousness of guilt, and thus of guilt itself. (footnote omitted)
Post‑offence conduct, including lies and flight from justice, is circumstantial evidence. A jury may accept and act upon evidence of post‑offence conduct without being satisfied beyond reasonable doubt that the evidence establishes guilt (that is, without being satisfied that there is no other explanation of the post‑offence conduct which is reasonably open on the facts), unless the post‑offence conduct is an indispensable link in the chain of reasoning on which proof of guilt depends. See Edwards (210); Ciantar [45]; Hedgeland [80].
In the present case I am satisfied that the trial judge was not bound to give the jury directions or warnings of the kind contended for by counsel for the appellant in relation to the evidence of the appellant's flight from the scene of the crime. In any event, I am satisfied that the failure to give these directions or warnings did not occasion a miscarriage of justice. My reasons are as follows.
First, the post‑offence conduct was identified adequately by the prosecutor and defence counsel in their opening and closing addresses and by the trial judge in his summing up.
Secondly, the post‑offence conduct was not an indispensable link in a chain of evidence necessary to prove guilt.
Thirdly, the appellant gave a specific and detailed explanation in his sworn evidence, consistent with innocence, for the post‑offence conduct.
Fourthly, the trial was fought on the basis that the appellant's confession to Mr Elyas Ali was either a truthful account (which was the State's case) or was invented by the appellant to protect his family from retribution (which was the defence case). The trial was also fought on the basis that the evidence of the appellant's post‑offence conduct was explicable either on the basis that the appellant wanted to avoid the police because of his fear of the consequences of what he had done, namely his stabbing of the complainant (which was the State's case) or the appellant wanted to avoid retribution by the person or group of people responsible for the complainant's stabbing and to facilitate the relocation of the appellant's family to Brisbane (which was the defence case). Further, the trial was fought on the basis that all of the post‑offence conduct was explicable either on the basis alleged by the State or on the basis alleged by the defence.
Fifthly, in the circumstances of the present case, it would have been inappropriate for his Honour to suggest different exculpatory reasons for the conduct in question. Defence counsel did not request his Honour to direct the jury on possible different exculpatory reasons. Any such suggestion by his Honour would have had the potential to undermine the strength of the specific explanation advanced by the appellant in his sworn evidence and by defence counsel on his behalf. See R v Jeffrey (1991) 60 A Crim R 384, 398 (Cox J, Wright & Crawford JJ agreeing); Civello v The State of Western Australia [No 2] [2008] WASCA 163 [41] (Steytler P, Wheeler & Miller JJA agreeing); Hedgeland [129].
Sixthly, his Honour adequately put to the jury, in his summing up, the defence case concerning the post‑offence conduct.
Seventhly, the trial judge instructed the jury that:
(a)the jury could not conclude from the circumstantial evidence (including the post‑offence conduct) alone that the appellant was guilty;
(b)the issue in the case was whether the jury could be satisfied that the appellant's confession to Mr Elyas Ali was a truthful account;
(c)the jury could only draw an inference as to the appellant's guilt from the circumstantial evidence and the direct evidence if the only inference that the jury could draw was that he was guilty;
(d)if, after examining all of the evidence, the jury was left with a reasonable doubt about whether the only reasonable inference to be drawn from the circumstantial evidence and the direct evidence was that the appellant was guilty, or if the jury thought that the circumstances were such that they did not support the State's case to an inevitable degree, then the jury could not safely draw an inference adverse to the appellant; and
(e)the State's case was that the circumstantial evidence together with the confession was sufficient for the jury to be satisfied beyond reasonable doubt that the appellant stabbed the complainant, and did so intending to kill him.
Eighthly, the physical act alleged against the appellant was that he had stabbed the complainant with a knife.
If the jury was satisfied beyond reasonable doubt that the appellant had stabbed the complainant and that he intended to kill him, then the appellant was guilty of attempted murder.
If the jury was satisfied beyond reasonable doubt that the appellant had stabbed the complainant, but was not satisfied beyond reasonable doubt that he intended to kill him, then it would have been necessary for the jury to consider the alternative offences (that is, grievous bodily harm with intent, contrary to s 294 of the Code, and grievous bodily harm, contrary to s 297(1) of the Code).
It was not suggested that, if the appellant had stabbed the complainant, then this act was authorised, justified or excused by law.
In Ciantar, a motor vehicle driven by the offender was involved in a collision. He fled from the accident scene. The offender was charged with culpable driving causing death. The Court of Appeal of Victoria considered whether the offender's flight could be used as evidence of consciousness of guilt of culpable driving causing death or whether the evidence in question was neutral in that it was equally consistent with the hypothesis that the offender was conscious of having committed some lesser offence, for example, failing to render assistance.
Warren CJ, Chernov, Nettle, Neave and Redlich JJA said:
We accept that there may be some circumstances in which post‑offence conduct is equally consistent with two or more possible offences or is otherwise intractably neutral. Where that is so, it may not be open, even on the totality of the evidence, to draw an inference that the accused had a consciousness of guilt of some particular conduct at the time that he told lies or performed some act which the prosecution relies upon as constituting post offence conduct. But where such lies or conduct are considered in the context of all of the evidence it is not to be assumed that it will usually be so. Indeed, in the scheme of things, it is not likely to be so in many cases (compare Woon v R (1964) 109 CLR 529 at 541‑2) [40]. (emphasis added)
Later, their Honours developed this reasoning by reference to murder cases where other evidence (apart from post‑offence conduct) implicating the accused in the primary count laid by the prosecution is of greater or lesser strength:
Of course, there will be circumstances in which post‑offence conduct is incapable of being probative of guilt of the charged offence as opposed to a lesser alternative or, another count on the presentment where there is a multiple count presentment, or another offence where it is disclosed by the evidence. For example, if a case of murder were presented to a jury on the sole basis that the accused admitted that he killed the deceased unlawfully, but denied murder, and the only evidence of the killing, apart from the admission, was that the accused had fled the killing and initially denied involvement in it, the jury could not properly be satisfied that the accused was guilty of murder. On the limited evidence available, one could not exclude as a reasonable possibility that the accused was guilty of manslaughter or possibly some lesser included offence. And the jury would need to be so instructed.
But in most murder cases the evidence is more extensive than that. Usually, the Crown presents evidence about the relationship if any between the deceased and the accused, the events leading up to the time of death, the place and time and the circumstances of the death, the means of killing and the cause of death, other injuries which may have been inflicted on the deceased and any injuries suffered by the accused in the course of the killing.
Although the post‑offence conduct may not be enough in itself to sustain an inference that an accused killed with intent to kill or cause really serious injury, as opposed to some lesser state of mind, such evidence, when combined with evidence of the accused’s words and conduct before and during the killing and forensic evidence may well satisfy the jury beyond reasonable doubt that the accused killed the deceased with murderous intent (see, for example, R v Burrows at 538, [27] per Charles JA). And comparable reasoning is equally applicable in trials for other offences [65] ‑ [67].
Their Honours concluded that 'where evidence of consciousness of guilt, which although by itself is equally consistent with consciousness of guilt of an included offence or another count on the presentment or another offence disclosed by the evidence, is capable in conjunction with other evidence of sustaining an inference of consciousness of guilt of the charged offence, it must be left to the jury to determine whether it demonstrates consciousness of guilt of the charged offence' [72].
On the issue of directions as to consciousness of guilt, Warren CJ, Chernov, Nettle, Neave and Redlich JJA said:
Trials which concern a one‑count presentment with lesser included offences, or a multiple‑count presentment or a case where the evidence adduced to prove a particular charge discloses the possible commission of other offences all raise the question of whether the post offence conduct relates to a particular offence charged or to 'other offences'. Accordingly, in such cases the jury may have to be alerted to the fact that, before they can treat the post‑offence conduct or lies as proof of guilt of the offence they are then considering, they must be satisfied, having regard to all the evidence, that a consciousness of guilt of such 'other offence' does not provide a possible reasonable explanation for the lies [78]. (original emphasis)
In the present case, it was unnecessary, in the circumstances, for the trial judge to give the jury a direction to the effect that the appellant's post‑offence conduct may have been attributable to his consciousness of guilt in relation to one or other of the alternative offences rather than attempted murder. Such a direction was not required in the present case because:
(a)the physical element of the offence of attempted murder, and the physical element of each of the alternative offences, were identical, namely the unlawful stabbing with the knife;
(b)if the appellant had stabbed the complainant, as alleged by the State, the critical point of distinction between the primary count of attempted murder, on the one hand, and each of the alternative offences, on the other, was the appellant's intention in stabbing the complainant;
(c)as I have mentioned, it was not suggested that, if the appellant had stabbed the complainant, then the stabbing was authorised, justified or excused by law;
(d)the evidence relied on by the State, apart from the appellant's flight, was reasonably extensive: for example, there was evidence about the relationship between the appellant and the complainant, the events leading up to the complainant being stabbed, the nature and extent of the complainant's wounds, the aftermath at 18 Sutherland Way, the appellant's confession and admissions to Mr Elyas Ali and forensic matters;
(e)the State relied on the confession and admissions made by the appellant in his recorded conversation with Mr Elyas Ali to demonstrate that he stabbed the complainant with the intention of killing him (prosecutor's closing address: ts 15 ‑ 17);
(f)as I have mentioned, his Honour directed the jury that it could not conclude from the circumstantial evidence (including the post‑offence conduct) alone that the appellant was guilty of attempted murder;
(g)his Honour directed the jury that it could only draw an inference as to the appellant's guilt of attempted murder from the circumstantial evidence and the direct evidence (including the appellant's confession and admissions to Mr Elyas Ali) if the only inference open to the jury was that he was guilty;
(h)the post‑offence conduct is not to be evaluated, for present purposes, in isolation: it must be evaluated together with the direct evidence and the other circumstantial evidence; and
(i)when the post‑offence conduct is examined in combination with the direct evidence and the other circumstantial evidence it is plain that the post‑offence conduct, viewed in the proper context, was not neutral as between the primary count of attempted murder, on the one hand, and one or both of the alternative offences, on the other.
In the circumstances, a direction of the kind referred to in Ciantar [78], as possibly being required in some cases, was unnecessary to avoid a perceptible risk of a miscarriage of justice as asserted by counsel for the appellant in his submissions.
In any event, the Court of Criminal Appeal held in Banks v The Queen [2003] WASCA 198 that a direction, generally of the kind referred to in Ciantar [78], was not required in Banks. The facts and circumstances of Banks are not relevantly distinguishable from the present case. See the reasons of Murray J [45] ‑ [66], Parker J [71] ‑ [86] and McLure J [98] ‑ [121].
Ninthly, the jury, by its verdict, necessarily rejected the appellant's evidence that he did not stab the complainant and his evidence of an innocent explanation for his post‑offence conduct.
Tenthly, defence counsel did not request a redirection or an additional direction from his Honour on the point now raised on appeal.
Conclusion
The proposed ground of appeal does not have a reasonable prospect of success. Leave to appeal should be refused and the appeal dismissed.
HALL J: I agree with Buss JA.
9
13
1