Dhanhoa v The Queen

[2002] HCATrans 509

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S236 of 2002

B e t w e e n -

KAMALJEET DHANHOA

Appellant

and

THE QUEEN

Respondent

GLEESON CJ

McHUGH J
GUMMOW J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 6 DECEMBER 2002, AT 10.15 AM

Copyright in the High Court of Australia

MR T.A. GAME, SC:   If the Court pleases, I appear for the appellant with my learned friend, MR H.K. DHANJI.  (instructed by D.J. Humphreys, Legal Aid Commission of New South Wales)

MR R.D. ELLIS:   If the Court pleases, I appear for the respondent with my learned friend, MS S.C. DOWLING.  (instructed by S.E. O’Connor, Solicitor for Public Prosecutions (New South Wales))

GLEESON CJ:   Yes, Mr Game.

MR GAME:   If the Court pleases, there are two substantial grounds in the ground relating to reasons.  The first ground relates to the question of directions on identification and the second to lies.  I will deal with the identification question first.

Before I take the Court to the relevant parts of the transcript, if I could just direct your Honours’ attention to section 116 of the Evidence Act.  Section 116 is in mandatory terms and it does not require any request by counsel and it includes the language of “a special need for caution” and the judge has to tell a jury of the “special need for caution” and the reasons for that need for caution, which is that “special need for caution”, as I would understand it. 

It is to be contrasted with section 165, which is not mandatory.  Section 165 includes identification evidence, but you do not really need to get to section 165, because section 116 really jumps over it, but section 165 includes identification.  The directions are only to be given when requested and it does not refer to a “special need”.  So that is the difference in the statutory context.

Now, in due course I will take your Honours to what the Court of Criminal Appeal had to say about this but there is nothing in the judgments about section 116.  Perhaps if I could just read one sentence of my submissions in the Court of Criminal Appeal.  At page 3 I am recorded as saying, “There is no getting away from the legal error under section 116.  It then becomes a proviso question.”  So it is clear that section 116 was raised in the court below, even though the court did not address section 116.

HAYNE J:   Does it follow then that in a case where identification evidence was led but, for example, an accused goes into the box and says, “Yes, I was there”, and in effect concedes in his evidence that the identification was accurate, that the judge is nonetheless to give the jury the directions under 116?

MR GAME:   It would appear so, your Honour, but obviously there would be no miscarriage of justice.

HAYNE J:   I understand about disposition of an appeal, but it would mean that the judge has to go through this form with the 12 citizens staring at the judge wondering what is happening.

MR GAME:   Well, your Honour, it does sound like a meaningless ritual at that point.  I suppose the answer to that question is that in the circumstances of that particular case, identification would have ceased to be an issue and it may be possible to waive the provisions of section 116 in the circumstances of that case.  That would really be the only reason.  I am not sure whether the waiver provisions include section 116 and I have not looked at that.  There are provisions that can be waived and I have to confess I have not checked whether or not that part can be waived.

I will come to this shortly, but it is our submission that the Crown at all times relied on the identification, regardless of the fact that the appellant admitted that for a certain period of time he was at the premises. 

Now, your Honours, if I could take you to a part of the summing up – I am sorry, just before I do that – at the beginning of this trial defence counsel objected to the receipt of the identification evidence and that objection was overruled.  The objection was under section 137.  It was not under section 115 which relates to photo identification.  As your Honours would appreciate, the photo identification was really just a few days before the trial itself.  The judge ruled that the probative values outweighed the prejudice and admitted the evidence.  There is no need to go to the judgment but it is at appeal book pages 13 to 15.

GLEESON CJ:   Presumably, at that stage nobody knew that the accused was going to give evidence that he had been present, at least during part of the time of the time of the ‑ ‑ ‑

MR GAME:   No, your Honour, except for the fact that the Crown had a fingerprint.  So, regardless of what the accused said, the Crown was going to be able to place him at the premises.  Our point is that they wanted something more out of this identification evidence than simply to place him at the premises, and they got that something more.

McHUGH J:   The judge put it at 218, did he not, at line 4:

He says he –

that being the victim –

thinks that the man he identified in photograph number 8 was the one who got up from the couch and came towards him and placed his hands around his throat.

MR GAME:   Yes, your Honour.

GLEESON CJ:   Incidentally, Mr Game, your client was not the bigger man.  There was one man who was larger than the rest.

MR GAME:   No, that is the man who the – well, the bigger man is actually shorter.  There were two men who were about five feet six.

GLEESON CJ:   There was one who was six feet tall and about ‑ ‑ ‑

MR GAME:   No, there were two who were six feet tall and my client is one of those.

GLEESON CJ:   Right.

MR GAME:   My client is about six feet tall.  The person who was standing at the kitchen sink who gave the knife to the other person who is in the kitchen who hit the deceased violently and then stabbed him, subsequently, he was the same person that played snooker with the victim.  I am turning this into a murder trial.  There are four people.  One of them does the stabbing.  He is about five feet six.  There is a person at the sink who gets the knife and he is the same person who is given the bong by the victim.  He looks very similar, according to the prosecution case, to my client who was sitting on the couch with a fourth person who goes and gets an imitation samurai sword who was about five feet six.

The confusion in relation to identities is between what is said to be the person I am appearing for, who is the person said to be sitting on the couch, and the person standing at the sink who provides the knife.  Their descriptions of those two people are very similar and there is confusion in the complainant’s evidence about whether or not that person had a moustache, and I can come to that shortly, but he changed his evidence about that.

In answer to what your Honour Justice McHugh just took me to, Constable Cipolla’s evidence on the topic, actually it might be said to have gone a little bit further.  At 154 – this is the evidence.  The judge did not actually refer to this by word in the summing up although he did sum up Mr Cipolla’s evidence, but at 154 he said:

Did he indicate to you that number 8 appeared to him to be familiar to being the person who grabbed him by the neck and pinned him to the wall, however his face was a bit thinner and I think he had a bit more hair?
A.  That’s correct.

So he is identifying the appellant as the person who is sitting on the couch, who then gets up, goes over, and puts his hand around the neck of the victim as if to strangle him, which he did for about 20 or 30 seconds.  In the passage that your Honour Justice McHugh just went to, what we have at 217 is, briefly put, a description of the various people and their roles which follows from 214.  It says:

He says the man that stabbed him is the man he played pool with –

so he played pool with that man for some time.  Then the next one:

the man who got the knife was about six foot tall, dark complexion, Indian appearance, had a moustache, thin build.

In cross‑examination he changed his story to say that person did not have a moustache, and the confusion is between that person and the person said to be Mr Dhanhoa.

He says the man who got the sword was a thick heavy build man, middle east appearance, about five foot six, dark curly hair.

So he is said to be five foot six, as is the first person, and then the last person:

He says the [man] who grabbed his throat was approximately six feet tall, medium build, dark complexion, clean shaven, short black hair.

That is said to be the accused, and in cross‑examination he changed “the clean shaven” to say that that one had a moustache.

Now, the point about 217 to 218 is that we have not only gone beyond the Crown case being there are four people, we have gone to the Crown case being four people plus descriptions of what each has done.  Then we have gone to a third level:  it is not just four people, not just descriptions of what they have done, but an identification of the accused and an identification of a role for him.  And to beat the Crown case, as it were, defence counsel would have to knock out those three things in reverse order.  Now, your Honours, at page 249, line 15 of the appeal book, it says: 

The Crown says that when you look at the descriptions of the persons involved in these incidents they conform to the accused being present.  The Crown says that you will be satisfied beyond reasonable doubt that the accused was in the flat at all times, that he did not leave the flat as he told you and that he partook in the instance –

I am not sure whether that should be “events”, but anyway –

giving rise to these charges. 

He says that it is important to remember the descriptions given by Schembri, Patterson and Sullivan as to the persons they say they saw and that the only conclusion you can draw from that is that what Patterson and Sullivan saw was consistent with the accused being one of those persons. 

Then he goes on to say: 

The Crown says that the fingerprint and the photograph identification in this case are also important aspects of the case even though the accused does not deny that he was present in the flat. 

This is at page 249 of the summing up.  The judge has moved to summing up what was put in the respective addresses of counsel, and he moved to that at page 240 – well, there is a brief adjournment after that, but at 240, he said he was now going to deal with what counsel said in their addresses.  So it is clear that the prosecutor relied upon the photographic identification and told the jury that it was important notwithstanding the fact that the accused does not deny that he was present. 

Can I just put it this way.  If the Crown case was that there were four people and that was the extent of the case, and the fingerprint, and then you had Patterson and Sullivan, who said that there were only three people attacking the victim outside, then the Crown case would be immeasurably weaker than it was with both descriptions and an identification of the appellant.  So the Crown case gets that something more and it puts the appellant there.  The identification is an identification of the appellant there at a time after he says that he has gone and it is an identification of the appellant as the person who assaulted him. 

HAYNE J:   Can you put it again, because I do not know that I have grasped it, Mr Game, sorry? 

MR GAME:   Let us say the Crown case was just that there were four people and there is a fingerprint and you have Patterson and O’Sullivan saying that outside he was assaulted by three people.  It is quite strong evidence and it does not really have a lot of ambiguity about it because it is describing three people assaulting him.  Now, if you had that case and then the accused came along and said, “I was there for a while and I left”, then the Crown case would be immeasurably weaker without the two further strings to its bow that it has:  first, the descriptions and, secondly, the assignment of a role to the appellant, because to win the case the appellant has to get himself out of the picture in terms of what happened in the assault.  Well, he is not going to do that until he knocks out the identification and then knocks out the description of the activities of four different people.  He has to go through it in that order, he has to knock them out.  If the Crown loses four people, it is true the Crown loses the case, because they have only three people left, but the Crown is not just relying on the four people; the Crown is relying on more than just the four people.

GLEESON CJ:   I still have not completely followed that.  The identification evidence was simply that this was a photograph of the accused and it was a photograph of a person who was present.  It did not show him acting out any role.

MR GAME:   No.  I can take you to the transcript of what he actually said, but the effect of what he said was - and I did take you to Cipolla’s evidence - that he identified the appellant as one of those who assaulted him, but probably the person who got off the couch, stood up and put his hand around his neck and in a strangling motion for 20 seconds or 30 seconds.  So he has given a person a role and he has said that the appellant had that role.

GLEESON CJ:   He said in court or to the policeman?

MR GAME:   He said in court and he said it to a policeman and both things were admitted into evidence and they are not exactly the same.  He was not 100 per cent sure whether it was that person or whether it was the person who handed the knife to the stabber.  But the effect of the evidence at its high point is that he is assigning the role to the appellant as being the person sitting on the couch who goes up, puts his hand around his neck and strangles him for 20 or 30 seconds.  So, as I said, if you are looking at it from the point of view of defence counsel, you cannot just start with the four people, you have to start with the identification.  You have to create a weakness in the identification before you even get to trying to knock out one of the people.  You also have to show that the victim may be unsure about assigning roles to four different people; you need to show that there is a possibility of him being uncertain or being mistaken as to four people present at that point, and that is the next step back in the argument.

But you cannot just strike at the thing in a vacuum, as it were, saying there were not four people, there were only three, because this thing is given the clothing of a lot of specificity and a lot of specificity about the appellant.  I mean, it can be tested this way, and it is clear from addresses that defence counsel was focusing on confusion between this person and the person who handed the knife to the - because they are the only two people who were six feet.

But you will not get anywhere from a forensic point of view unless you can strike at the identification, because who cares about what the other person is doing with the knife?  There is no other candidate for leaving the premises except for the appellant.

HAYNE J:   But was that attack premised on there then being three or then being four?

MR GAME:   No, the defence - they need to create a doubt about there being four people.  Once they have created a doubt about there being four people, they have won the case, we could say, because there is no other candidate for leaving the premises except for the appellant.

HAYNE J:   But the attack on confusion of who did what took what form?

MR GAME:   Well, the attack on confusion took this form.  Defence counsel sought to expose weaknesses in the account that the victim gave between the person who was standing at the sink who handed the knife to the stabber and the appellant, and particularly with respect to the description of the moustache.  Now, I am not sure necessarily how far that ultimately was successful, but my fundamental point is that you do not get anywhere with any of it unless you raise a doubt about the identification because if you do not raise a doubt about the identification you have the appellant forever fixed there and assigned a role.  So what it does is the identification leaves the – if you look at from the point of view of – you can see why the prosecutor wanted this evidence in because it not only got four people there, but it assigned a role to the appellant and it made the case a lot stronger from the prosecution point of view than if there was simply a fingerprint and four people there, even if the four people were assigned roles.  I think that is why the prosecutor saw it still as being important because it leaves the defence with very little room to move in terms of knocking out the Crown case that there were four people present.  Now, that is really the heart of the issue.

The point about the identification directions is that there were lots of problems with these identifications.  It was terribly late, there were differences in the descriptions, there were photos, there was uncertainty expressed.  So these were - I think we have a list of them.  Yes, I have listed most of that, but of course the identification was made over a very short period of time.

Now, that passage your Honour Justice McHugh went to, that passage at 217 and 218 really shows how the prosecution sought to lift this case out of simply being a case about four people present and that, as I would infer, is what the prosecutor was really getting at when he said that the identification remained important.  Indeed, the fact that he said that it was important, in our submission, in itself would indicate the strong need for directions.

HAYNE J:   Do you therefore take issue with Justice Kirby’s conclusion at 268 at paragraph 19 of the judgment that the issue was not of identification; it was whether it was three or four?

MR GAME:   Yes, your Honour, that is not an accurate description of the Crown case; it is not a fair description of the Crown case; it is a retrospective honing down of the Crown case.  Can I put it this way, your Honour:  the prosecutor was insistent, and one can understand why, throughout the evidence to maintain that there were four people present but that was because once he lost one person he would lose the case, but that does not mean that that is all the Crown case was.

As I say, the Crown case was substantially more than that and you can test that by asking what sort of a Crown case would it have been if there was the fingerprint?  He said there were four people and then you have the evidence of Patterson and Sullivan and then you have the accused who hops in the witness box and said, “I’d left the premises at that time”.  It would have been an immeasurably weaker case than the case that the prosecutor ultimately took to the jury.

Now, it is probably not necessary to take your Honours to it but there is a substantial amount of cross‑examination of the victim as to confusion between his description of the man who hands the knife to the stabber and what is said to be the appellant, and he ultimately switched his account.  That appears at pages 58 to 60 but I do not think it is necessary to take your Honours to that particular transcript, but he definitely did seek to expose that weakness in the prosecution case relating to those two people.

I took your Honours to 249.  If one goes to 251 you see what defence counsel is putting.  About line 20 he said there:

must have been the three men who were involved in the incident in the unit and that Mr Schembri is mistaken in that regard and it is understandable that he could be mistaken . . . bearing in mind the alcohol that he consumed, the fact that he had smoked the marijuana and that he has just unaware of the number of people that were involved . . . but that you cannot rely upon his evidence particularly as he cannot when it is queried or when you refer to what he said in his evidence, what he said to the police about the identity of those persons to which the defence referred him in cross‑examination.

So, as I said, it is quite clear that both the prosecutor and the defence saw it as necessary to knock out or to strike at the identification of the appellant and the identification of a role to him.  In particular, he says:

what he said to the police about the identity of those persons to which the defence referred him in cross‑examination.

Now, if I could just take your Honours back to some bits of evidence of the victim about this.  At 21 to 22 of the appeal book he is describing what people did.  At 22 line 50 he says:

I think one was just standing around in the lounge room.

And then at 24 he describes what was said to be the four people outside, and that is a passage at the beginning of 24.  That passage there is the passage that Justice Kirby relied upon in his judgment with respect to lies to show that the Crown case was not unequivocally strong that there were four people present.

Then at 29 he describes the four people and then at 31 to 32 is the description.  At 32 he says he thinks it was number 8 and he assigns the role at 32 to the appellant.  So if you couple that with Constable Cipolla’s evidence, you have an assignment of a role to an identified appellant.

Now, the cross‑examination, I was not going to take your Honours to it, but you see he is cross‑examined on 54 lines 30 to 45.  He is cross‑examined on it being between those two people, which, as I said, is the man who gets the mark and the person who is said to be the appellant, who is said to do the strangling.  Page 56 line 29, he is “positive” that it was the man with the moustache who got the knife.  Page 58 to 59 a prior inconsistent statement is put to him and then at 60 line 10 he switches it:

So the man with the moustache was sitting on the couch?

As I said, it may not be terrific, but that is how the defence sought to strike at the evidence which both assigned a role to the appellant and identified him as the person.

If one goes to the Court of Criminal Appeal’s judgment in Justice Meagher’s judgment at page 266, he said at line 35:

Here, no part of the Crown case did.

Line 49:

The case was fought on this basis – were there three assailants or four?

I think I have hopefully taken your Honours to enough of both what the judge refers to in the summing up as to the counsel’s address as to the way in which the judge puts it and to the evidence of the victim and to Constable Cipolla to show that that was not all there was to the Crown case; in fact, there was substantially more and it sought to draw from it the identification.

There is one other thing.  In relation to Domican, if I could just draw your Honours’ attention to a decision called Clarke 97 A Crim R 415. It says what is possibly the obvious, but that Domican has to be read subject to section 116 and 116 has effectively qualified what Domican says and one must go to 116.  One sees in the judgment this at – there is a discussion at 422 and then it comes to a head at 424 to 425, and then at 427, about point 7:

I am satisfied that the nature of the warning which is now required to be given in relation to identification evidence is dictated by sections 116 and 165 of the Evidence Act rather than by the decision of the High Court in Domican, although a judge is still permitted to add the Domican formulation if thought appropriate in the particular case.

And we say that so much is clear.

HAYNE J:   Are you able to state for me the issue for decision by the jury that the 116 warning would have related to?  I can understand you say 116 required the jury to be warned about the difficulties of identification evidence, but how would you relate the giving of that warning to an issue which was for the jury’s decision at this trial? 

MR GAME:   I will answer it, but I am not sure that I have appreciated the full extent of the question, but what ‑ ‑ ‑

HAYNE J:   Can I help you this way, by saying the direction I have in mind would run along the lines:  “In deciding, ladies and gentlemen of the jury, the issue X, the evidence of identification is relevant.  You need to scrutinise that with special care” et cetera.  Now, what is the issue? 

MR GAME:   I will answer that question in just one moment, but we saw in the evidence of the victim and Cipolla that he is identifying the appellant as a person who did something in relation to him which was seriously criminal.  That is why I am not sure that I have fully appreciated, because the issue is, was he there at the time of the assault by a number of people?  Did he partake?  Did he partake to the relevant criminal extent required to make him liable?  Joint criminal enterprise was relied upon and all that is brought in.  “Was he a participant in the assault upon the victim?” is the issue. 

HAYNE J:   And by the time we get to the jury, there is only an issue, is there not, was he there or was he not?  If he was there, there was no separate issue about him standing by, not participating. 

MR GAME:   No.  True enough, your Honour, but ‑ ‑ ‑

GLEESON CJ:   The only issue was, was he still there? 

MR GAME:   That is right. 

GLEESON CJ:   Well, now, how did the photograph bear on that? 

MR GAME:   Because the photograph put him there at a time after he said he had gone. 

GLEESON CJ:   The photograph put him there. 

MR GAME:   The identification put him there at a time after he said he had gone.  He says, “I have gone”.  The identification says, “I identify that person as being present after he says he has gone”.  But, your Honour, can I ‑ ‑ ‑

GLEESON CJ:   There are two propositions in that, are there not?  One is, “That is a photograph of one of the four men”, and the second proposition is, “The man, of whom that is a photograph, put his hands around my neck”.  Now, the unreliability of which the jury were to be warned went to the first proposition, did it not, not to the second?

MR GAME:   No, because when he gives it, he is identifying him as the person who put his hands around his neck.  If he just says, “That person was there at some point” – but that is not what he says.  If he said, “That person was there at some point, and I cannot tell you what any of these four people did”, then the Crown case is immeasurably weaker, if it is just one and not one and two. 

GLEESON CJ:   Just remind us, what is the source of the unreliability of the identification evidence about which the jury has to be warned?  It is the problems involved in photo identification, is it not? 

MR GAME:   Yes, but it is not just photo identification, because even if it was an actual line‑up, there would still be dangers, because it is very late, it is equivocal evidence.  But he did not identify him as a person sitting on the lounge.  He had not any particular contact with him before.  He was not the person who handed him the bong.  He identified him as the person who strangled him.  So it takes weight from the circumstances in which the events occurred to him.  It is not just that that was a person who I saw in the hotel, or that was a person I saw sitting on the lounge and I cannot tell you anything more.  It does tell you something more. 

Now, your Honours, can I just say this, the prosecutor thought it was important, and it is an unlikely that a prosecutor in this context would be mistaken about what the use of the evidence was in the case.  It is really only with the benefit of hindsight that people have been saying, “Oh, yes, but it was just about whether or not there were four people present.”

HAYNE J:   Talking about hindsight is difficult when there is no exception to the charge, Mr Game.

MR GAME:   Your Honour, I do not know what I can say except that counsel was not very experienced counsel, but the mandatory nature – I think this would have been obvious from the fact that I read it to start with – the mandatory nature of the charge, really, jumps over that, and this, as far as I am aware, is the only place in the Evidence Act where there is a special mandatory direction.  I do not know of any other provisions of a similar kind.

So as seductive as it is, we submit that the way in which your Honour the Chief Justice has put it to me is not a correct analysis of the real strength that was actually obtained from the identification in this case.

GLEESON CJ:   No, I was simply carrying forward a question that had been raised with you earlier by Justice Hayne going to the question of the issue about which the jury would be deliberating and to which the warning would be relevant, and it just occurred to me that what was in issue, after your client had given evidence – although obviously people did not know this at the time the identification evidence was led – was, “Was your client still there at the time the victim was attacked?”

MR GAME:   Your Honour, if you wanted to strip it of the other baggage that I have given to it and look at it in terms of the ability to make perceptions, you could put it this way:  if you have a measure of perception and you say, sitting on the couch is this big and what happened to him when he is assaulted is this big, in terms of his perceptions, then the identification gives weight to that part.  You cannot simply throw it back on him being a person he saw. 

I do not know whether that makes sense, but what I am trying to say is that it is the perception of him as the person who assaults him that is said to be the substance of the identification, and once you have tied him into that, the appellant, as I have put before, is in all sorts of trouble and he has a long way to go before he gets it down to three people and, as I said, he has to get rid of the identification and he has to get rid of the assignment of four different roles.  So he has to step over those two steps to get there.

So that, for instance, the evidence about somebody may have just been standing in the lounge room is an uncertainty in the giving to a person of a role.  That is the way we put the argument in relation to the question of identification.

Now, I have not checked the waiver provisions in answer to the question, “Can that be waived?”.  I think my junior has just put it correctly.  There is no waiver provision but there will not be a special need for caution if there is no dispute about identification. 

Now, your Honours, the second issue relates to lies.  If I could begin by taking your Honours to a portion of transcript.  At page 89 evidence was led from a Senior Constable Cipolla and this is led in the Crown case, obviously.  At about line 35 he is telling the accused with some specificity, we would say, about what it was that was being investigated.  He asks him how he came to be there.  He refers to fingerprints and he asks him how he came to be there.  He says he has “no idea”.  At the bottom of the page he asks him if he has ever been to the Bridge Hotel and he says, “No, where’s the Bridge Hotel?”  He said he was playing pool.  He said he knows “nothing about it”.  He is asked if he has Indian acquaintances and he says “No, not really”. 

Now, we have presence, going the hotel and the Indian friends, at least three untruths.  The Crown sought to show that they were untruths.  First, the fingerprint established the untruth in relation to presence.  Evidence from Mr Schembri that he was introduced by the first assaulter to his Indian friends is at page 18, line 35, “introduced to three of his friends”, proves the falsity in relation to the friends.  What emerges in cross‑examination of the appellant in relation to the hotel, because he asked the taxi to take him to the hotel, proves the falsity in relation to going to the hotel. 

At the point at which this evidence comes in, it could not be coming in for a credibility reason.  There is no credibility reason.  There is no record of interview and there is no evidence, so it cannot become – it is possible, having regard to this Court’s decision in Adam, that if it had some other relevance at a time when it comes in as credibility, it could come in but it is certainly not coming in for credibility reasons that ‑ ‑ ‑

GLEESON CJ:   It comes in at a time when nobody knows what the accused is going to do or say as an account of a conversation between the accused and the police officer.

MR GAME:   Yes, which the police say is false and which the prosecution says makes their case stronger, and the judge so put that to the jury.

GLEESON CJ:   There was no objection to this evidence, was there?

MR GAME:   No, your Honour, but there may have been a reason for that.  The reason for that may have been that the appellant knew that he was going to go into evidence.  It would be worse for him if this was cross‑examined in at a later point.

GLEESON CJ:   But all that is happening at the time the evidence is adduced is that the prosecutor, not knowing what the accused’s case is going to be, leads evidence of an account of the conversation between the accused and the police officer at the time the accused was arrested.

MR GAME:   Yes, but he has not led it to be nice to the accused.  He has led it as part of his case.  He has the identification, he has the fingerprint and now he has this, and this makes his case stronger and the jury must have thought that it made his case stronger because that is what they were told in the summing up.  It is hard to see how the jury could have otherwise thought about this than it was led as supporting an inference of guilt.  If they were not told that it could not be used in that way, they must have been wondering what on earth it was there for.  Not only that, it is an account of what the prosecution says are untruths and deliberate untruths, and there is cross‑examination on this that makes it clear.

If we then go to the appellant’s – now, this comes just in terms of its analysis of what it is, it comes in as an admission – it must be coming in as a statement against interest.  It is not hearsay because it is not intended to establish the truth of the assertion, so it is not caught by section 59, so it does not come in strictly under section 81 but it is covered by that part of the Evidence Act ‑ ‑ ‑

HAYNE J:   Is it right to attempt to assign a basis to its coming in greater than that it was tendered and not objected to?

MR GAME:   No, but it must have come in as something.

HAYNE J:   Right.  There is no objection from the other side.  It is led without objection.

MR GAME:   Well, assume that is so.  Later on, the judge tells the jury that this is material that they can take into account, so obviously the prosecutor thought it was part of his case.  He cross‑examined on it extensively.  The judge told the jury they could take it into account.  It is impossible – and the prosecutor sought to establish the falsehood of these assertions in cross‑examination and they were all falsehoods that you could conclude were falsehoods independently of a mode of reasoning to guilt.

GLEESON CJ:   We keep telling the prosecutors they have to lead all the evidence in their case in‑chief, and they do not know what case the accused is going to seek to make out, and so as part of their case in‑chief, without objection, they lead evidence of what was said between the accused and the police officer at the time of the arrest.

MR GAME:   Yes, but they are not leading this because they think it is exculpatory.

GLEESON CJ:   They do not know what is going to happen.

MR GAME:   Your Honour, just assume that that is the case.  This is on 3 May.  By 5 May when the judge sums up to the jury, the jury has to know what this material is being used for, and all they are told is that it is relied upon as part of the Crown case, and that they are told in no uncertain terms.  So even if an uncertainty for a period of time about it could be excused, it could not be excused just letting the evidence go through without any directions as to what it was.

HAYNE J:   The relevant question surely is:  by the end of all of the evidence, what was the use which it was sought to make of it?

MR GAME:   Your Honour, I will come to that in one moment but if I could say this:  the judge in summing up said to the jury at page 250

The Crown says that in regard to you will remember what the accused said when he was spoken to by the police officers at the time of his arrest and compare that to what he says to you now remembering that he received the police brief in this matter in February.

That is February of this year because he was charged in September, so February.  Now, “remembering that he received the police brief” means that the prosecutor is suggesting that he made it up after he got the police brief that showed they had a fingerprint, so it is an allegation of recent invention.  Then the Crown says:

All those matters are part of the Crown case –

So it is relied upon, and this is still in the summing up of the respective cases that are put.  So the judge is still summarising what the prosecutor has said.  So the prosecutor has said that these falsehoods are part of its case.  Now, this is a lot worse than Zoneff because the jury did receive directions in Zoneff as to the use, and they were told not to use it in a particular way and not to infer things from it.  This is just led as evidence supporting the Crown case of guilt.

If one goes back to the evidence of the appellant, he then seeks to explain at 157 in‑chief why he did not mention these things to the police.  At line 30 he says he did recall it when he got the facts sheet.  So presumably, that is on the same day and some little time later.  Then in cross‑examination the prosecutor commences with this issue about speaking to the police on 27 September, what he said, and then towards the bottom he said at line 42:

The fact is that you remembered about this event occurring when the police were charging you and they were giving you a copy of the –

that should read “facts sheet” -

detailing what these events were?
A.  I remembered the night.

Q.  You didn’t say anything to the police at that stage that what I told you earlier was wrong –

So, what is being put to him then is that he had an opportunity on the night that he was charged to correct what he knew at that time was wrong, and even though he had a clear recollection.  Then he said:

You told the police that you didn’t really have any Indian acquaintances that’s not true is it?
A.  Yeah it is true.

So, it is put to him that it is false.  All a lie is is an untruth that is knowing.  That is all a lie is, so these are lies.  At the top of page 169 it says:

Since receiving a copy of the fax –

that should be “facts” again -

you’ve also received a copy of the police brief . . . Yeah, that’s right.

That formed the foundation of the prosecutor’s submission to the jury that I referred to at 250 that he made it all up when he realised what the strength of the Crown case was and how the Crown case put him there and that there was no point in denying it.  Then at page 170, line 17, it is said:

You knew you were going to the Bridge Hotel because you asked the cab driver to take you there didn’t you?
A.  Yeah.

Q.  You knew about the Bridge Hotel prior to arriving at the hotel?
A.  Yeah.

So the prosecutor has presence, knowledge of the hotel, having Indian friends.  He has all of those hanging, as it were, with independent weight quite independently of evidence establishing guilt, so there is no circularity.

So we have lies.  It is hard to see how they are not material lies or said to be capable of being material lies, since they go to his presence at the hotel.  I should say Justice Kirby doubted that but if that was to be doubted that is something that would have to have been argued about and the Crown’s position would have to have been ascertained.  But we have lies independently established going to matters very much in issue in relation to the case, hardly collateral credibility issues.

Now, we then go to the summing up, 233.  This is before the judge comes to actually putting what they – this is in the summary of what the witnesses said and the judge is summarising the accused’s evidence and that starts at 233.  Again, it is an important part of his summary of what the appellant said.  He said:

He agreed that he told Constable Napper that he didn’t know what he was talking about.  He said I said that because at that time I didn’t know what he was talking about.  It was not until I was charged and I got the facts sheet that I knew what he was talking about.  The Crown says, well that’s strange because according to the conversion Constable Napper made it clear that they were talking about a stabbing and a robbery that happened at Balmain and a person was stabbed five times –

So the word “strange” is retracted a little later, but the whole point of it is that he could not have been mistaken because he knew already what the police were talking about.  So it goes to establish the deliberateness of the lie.  That is the whole point that is being made about it being strangers.  He already knew before – he was put in the picture by the police officer and he was told what it was about.  He was told there was a fingerprint, that is, something that put him at the scene of the crime – not something that all detectives do incidentally – but it was put to him quite early on that there was a fingerprint.  So he is in the picture and then he makes a denial.

So the point is, the prosecutor is saying those are deliberate lies that he told to Constable Napper.  Why else would he make that submission?  Then the submission grows because the prosecutor makes that further submission that I referred to, which is the one I took you to at 250 line 10, where he says “remembering that he received the police brief”.  So he strengthens the submission. 

Now, the defence counsel complained about the use of the word “strange” and then there is a little bit more at 236 line 5 about what the appellant said and there is, likewise, a little bit more at 237 lines 25 to 41.  Then at 250 is the passage that I took your Honours to.  It is a passage where his Honour withdraws the reference to “strange”, but I have just misplaced it for the moment.  It is at page 246.  He withdraws the reference to “strange”,  but then he makes, as I said, the stronger point at 250, which is, “All those matters are part of the Crown case”.

Now, in our submission, it is inevitable if you say, “All those matters are part of the Crown case”, you have focused on the deliberateness of the lies, you have sought to establish them independently, you have established a chronology that shows that this account is brought up after the receiving of the police brief, then you have lies up and running in this case in a substantial way and there is no suggestion of any retracting from what was led from Constable Cipolla at page 89 that I took you took; in fact it is being used quite strongly in the Crown case.  Now, if one goes then to the judgment of the Court of Criminal Appeal ‑ ‑ ‑

HAYNE J:   Does it follow that in every case in which it is demonstrated that an accused, or arguably is demonstrated that an accused has lied on oath in court that a Zoneff direction has to be given?  Are we to elevate Zoneff to a compulsory direction?

MR GAME:   Your Honour, it depends what – these are not just inconsistencies.  The Crown calls them inconsistencies in their submissions.  I do not think they called them that at trial, and they are not just inconsistencies.  These are specifically identified lies.  Not only are they specifically identified lies, they are specifically identified lies that are a conversation between a police officer and the accused.  It is not as though there is a record of interview interspersed with truthful accounts and false accounts.  You would not have to give a Zoneff direction every time there are inconsistencies in a record of interview or you are simply saying you would reject what the appellant said, but that is not this case at all.  This cases bears no resemblance to that type of case - that is a record of interview kind of situation - nor does it resemble a case where counsel are saying to the jury, “You will reject what the appellant says about this, that and the other, or there are inconsistencies in the account.”

That is not this case at all.  Indeed, I know the Crown puts that in their submissions.  I do not think that what happened at the trial reflects that at all.  As I said, why would the judge, when summarising what the prosecutor had said, say, “All those matters are part of the Crown case”, if he was not relying on them?  I should say, if it was not being used as evidence of guilt, then the jury had to be told, and that is the whole point the Zoneff direction, because all of this leaves quite clearly open that the jury would have thought that it ‑ and they were told that it strengthened the Crown case.  So, as I said, if they were not being used as evidence of guilt, then the jury had to be told and the jury had to be told that they were only used for credibility purposes.

Now, if we go then to Justice Meagher’s judgment at 267.  His Honour says at 267, line 29:

It is clear enough that the second possibility can be discarded.

Well, it is not - bearing in mind that it was specifically put contrasting the accounts, bearing in mind that it was part of the Crown case and said to, as it were, strengthen the Crown case, it is difficult to see how that could be correct, particularly bearing in mind that the appellant was cross‑examined on it.  Now, his Honour goes on to say:

Not so the first.

Well, just pausing there, if the evidence goes to what has been described as “consciousness of guilt”, then it is hard to see how credibility would cease to be relevant.  It would be consciousness of guilt plus credibility.  It would not be just consciousness of guilt, but that does not matter in the context of this case.  His Honour then goes on to say two lines later:

it is extraordinary that the Crown did not rely on it when addressing the jury –

but the Crown did rely on it.  We know that the Crown relied on it because the judge told the jury that the Crown relied on it.

GUMMOW J:   What was that page?

MR GAME:   Page 250, line 14.

HAYNE J:   I just do not know what his Honour is saying at 250, line 14, when he says:

are part of the Crown case and it is for you to determine whether there is any relevance in that or whether there is not.

I do not know what the jury have been told by the prosecution in their evidence.

MR GAME:   That follows immediately after being told that the Crown relied on the fingerprint, the photographic identification and the lies.  There is no doubt that he is referring to “lies” at lines 5 to 10.  That is what the prosecutor cross‑examined to establish, even if he had not established it already, otherwise he would not have been asking questions to show that they were untruths, and they are said to be part of the Crown case.

Now, if we go back to 267, line 35:

it is extraordinary that the Crown did not rely on it when addressing the jury –

As I said, that is quite wrong.  The Crown obviously did rely on it when addressing the jury, and if defence counsel had picked up the judge on referring to the Crown’s submission as strange, it is unlikely that if the Crown had not told the jury that it was part of the Crown case that that would have been left, as it were, floating in the air.  So that is what his Honour says.  Now, part of our argument is that it is very ‑ ‑ ‑

HAYNE J:   Just before you part from that, is it clear that there was no consciousness of guilt argument advanced at trial? 

MR GAME:   No, your Honour, it is not clear. 

HAYNE J:   I am talking about what argument was put, not what argument was available, but did the prosecutor say to the jury, “You may take the demonstrated lies and infer from that that they were told out of the consciousness of guilt”? 

MR GAME:   Well, your Honour, I am not sure that I can put that, but if you leave to the jury that he is making it up and you leave it at that, then – and it goes back to cases like Broadhurst – they will infer from that that he is guilty.  That is the point. 

HAYNE J:   I understand that point and I am not seeking to debate that point with you, but was an argument positively advanced for consciousness of guilt? 

MR GAME:   I cannot see that it was put in that way, but my point is that if you leave it in the way that he is making it all up and then you do not direct the jury, then the danger is the danger that has always been focused on ‑ ‑ ‑

HAYNE J:   You will infer from the fact that he lied that he ‑ ‑ ‑

MR GAME:    ‑ ‑ ‑ is that you will infer from that, and that is the point of the direction.  That is why this case – if it is not relied upon as consciousness of guilt, that is why you have to give the Zoneff direction, because otherwise the jury will infer from this.  They have heard the evidence.  They have heard the cross‑examination.  They have heard the counsel’s address.  They have heard the judge repeat it.  Why would they not infer that the fact that he was making it up led to an inference supporting the Crown case?  Nobody had suggested to them otherwise. 

HAYNE J:   But it seems to me – and it may not be wrong – that your contention is that in every case in which it is arguable that a lie has been told by the accused, a Zoneff direction should be given. 

MR GAME:   I do not go that far, your Honour.  I do not go anywhere near that far, but I do say that this case is a case where it arises very clearly, because they are saying that he made it all up, that he lied at an early stage, before he was in possession of the Crown brief, that the explanation for that lie was false because he did not take the opportunity to correct it when he got the facts sheet.  So that it was a deliberate lie told and not corrected, so that you would reject the account about the lie and that the next step in the Crown’s argument is, and then he changed his story when he got the Crown brief when he realised how strong the Crown case was. 

Now, as I said, those things are all established independently of an inference of guilt.  It is difficult to see how a jury – the jury have everything that they need to infer guilt from that.  From their point of view, they have deliberate lies.  They have deliberate lies not corrected.  They have deliberate lies on a material issue, deliberate lies independently established.  All they have not got are the directions warning them about the use of the material.  It is just simply not correct to say this is just a case involving some inconsistencies in the account.  That does not bear with the facts of what happened in this case. 

Now, what we say about that passage – we attempt to give some reason for that passage, but we say that the reasoning in that paragraph is just simply not adequate and it is not an adequate exposure of reasons.  It does not direct itself to the critical issue which is that the evidence – you would have to go so far on this analysis to say that the evidence could not have been used by the jury as evidence of guilt.  You could not support this passage unless you could go that step further and demonstrate it and, in the light of what I have taken your Honours to, you could not possibly demonstrate that.

Now, the reasons point – in view of the fact that special leave has been granted and that obviously the Court is not going to remit the matter for reconsideration by the Court of Criminal Appeal, the reasons point does not actually take the appellant’s case terribly much further but it was relied upon at the special leave point.  But, as I said, we are here arguing the appeal and your Honours will have to give reasons, so the reasons point may get us here but it does not actually advance us once we are here.

Now, that is how Justice Meagher dealt with it.  Now, Justice Kirby dissented on this.  If I could take your Honours briefly to what his Honour Justice Kirby said.  We see on 269 and following are the passages referred to.  There is the passage from Detective Napper which is the passage that I took your Honours to before.  I mistakenly said Cipolla, it is Napper, and that is the passage at 89 to 90 referred to by his Honour at appeal book page 270.  Then there is the cross‑examination of the appellant referred to on 270 in paragraph 25 of the judgment and that is the passage at appeal book 168 that I took your Honours to.  Then on the following page, at paragraph 27, he picks up another aspect in relation to the friends, that is at appeal book 169.  In paragraph 28 there is a passage which is at appeal book 170.

His Honour concluded that there was no evidence supporting a finding that the appellant had lied through a consciousness of guilt.  Well, that may or may not be so, but it is certainly not how the jury would have been left to think about it of their own purposes.  They may not have used the term “consciousness of guilt” but “evidence of guilt” would be an apt way of describing how the jury would have been left with it, given the way in which it was left.  Then his Honour said at 31:

Here one may doubt that the Crown could even establish that the appellant had deliberately lied.

Well, as I said, the Crown established that through other sources independent of evidence of guilt.  Now, at 32 it says ‑ and likewise his Honour says it is not a material issue.  Again, it would be material because it makes him closer to the crime to be at the Bridge Hotel and it makes him closer to the crime to have Indian friends and it makes him

closer to the crime – even closer to be at the scene of the crime.  So they are clearly material issues.

Then his Honour recited the passage that I have taken you to at appeal book 250.  Then his Honour concluded that a Zoneff direction was required.  His Honour then points out at paragraph 43 that Zoneff was not handed down until 25 May 2000.  Now, as I say, it is said against us that Zoneff was said to be an unusual case.

GLEESON CJ:   It was a case in which the prosecutor did not address the jury.

MR GAME:   I know, your Honour, but in this case the prosecutor did address the jury and clearly relied on the lies.  But when this Court in the joint judgment in Zoneff referred to “a risk of misunderstanding about the significance of possible lies”, that was the critical passage.  That is at 245 paragraph 24. 

Now that arises clearly in this case.  There is a risk of misunderstanding about it because the jury, undirected, will use the evidence as evidence of guilt or evidence supporting an inference of guilt.  Everything they have been told supports that conclusion.  So there is a big risk of misunderstanding in this case.  As I say, it is even greater when one bears in mind the kind of lies they were, how they were independently established, because in the mind of an ordinary person, you could see how the jury would think he must be guilty because he lied about important things when the police first spoke to him and he could have changed that, he could have corrected that quite quickly, and they are lies about the things that put him at the scene of the crime.  So, an ordinary jury person, unversed in the law relating to directions on lies, would clearly have thought that this made the Crown case a lot stronger and, in practical terms, it did.

Now, I have put all those submissions fairly briefly, but those are our submissions on the two grounds, unless there is anything else.

GLEESON CJ:   Thank you, Mr Game.  Yes, Mr Ellis.

MR ELLIS:   Thank you, your Honours.  Your Honours, in relation to the identification, section 190 of the Act does provide that there can be a waiver of some sections within the Act, but unfortunately Part 3.9, which is where section 116 comes from, is not included in those sections which can be waived, so it does seem from the reading of 116 that it is in mandatory terms.  It may be that there perhaps needs to be some legislative reform for the type of case where, whilst identification evidence is led, there is, in fact, no issue at the trial.  But at the moment it would seem that, despite that being the situation, some type of direction would have to be given under 116. 

One would assume that it would be a theoretical direction talking about the general problems and perhaps even the specifics may be possible, in some cases, in terms of, for instance, the effect of alcohol, lighting, in any given case.  But the Crown does accept that it was mandatory, also accepts or puts forward that it was not necessary in this particular case because the fingerprints had not been challenged and the appellant, in his own evidence, admitted his presence.

Indeed, if your Honours go to appeal book 191 lines 50 and to the bottom of the page, it is encapsulated in the question from the Crown, that the victim:

is wrong in what he said but he is correct in the fact that he has identified your photograph?
A.  As being there that night?

Q.  Yes.
A.  Yes

Q.  And there is no doubt you were there that night?
A.  Yes, no doubt.

Q.  and there is no doubt that you accept it was your fingerprints on that table.
A.  Yes, I accept that.

Identification evidence under the dictionary definition - and I have extracted this in paragraph 24 of the Crown’s written submissions - defines identification evidence as being:

an assertion by a person to the effect that a defendant was, or resembles (visually, aurally or otherwise) a person who was, present at or near a place where:

(i)  the offence . . . was committed; or

(ii) an act connected to that offence was done;

at or about the time –

of the offence.  It is not the situation that an identification warning of the type required the special caution requirement under 116 would go to a situation where a person was identified as present, as here – no issue about that – but then there was a question as to the particular identification of individuals as committing certain acts.

That is especially so in the situation where the Crown is relying on joint criminal enterprise.  The Crown did not have to have the jury determine which of the four men had done what.  All the Crown had to establish was that there were four men present, this accused was one of those four men and that the four men were undertaking a joint criminal enterprise.  Now, if that is the situation, then in fact the jury would have had no difficulty and, as his Honour put to the jury at AB 253, line 39:

I hasten to add in this case it seems to me that the Crown case really depends on you accepting Mr Schembri from go to whoa that at all times there were four persons there.

If you accept that evidence and you are satisfied beyond reasonable doubt from that evidence that there were four persons there then you have to look at whether those four persons were involved in the incidents as described by Mr Schembri.  If you do then the Crown says you will be satisfied beyond reasonable doubt of his guilt.

There was no issue that one person out of the four – according to the Crown case – did not participate.  On the Crown case all four were participating.  At the time that the complainant gave evidence there was no knowledge of the subsequent evidence of the appellant which was to the effect, “Yes, I was there but I left before anything happened”.  So, the context of the complainant’s evidence was simply, “I went back to my unit with these four men.”  He then described physically what happened to him.  He indicated on a number of occasions that he was not 100 per cent sure as to what particular person had done what particular thing to him.  When one looks at appeal book page 32 and his evidence, he was asked at 26:

When you said you think it was number eight what did you mean I think, what did you mean by I think it’s number eight.  What were you referring to.  Perhaps I should rephrase it.  Who was number eight?
A.  One of the men that was there on the night, one of the four men.

Q.  Which one of the four men was picture number eight?
A.  Two of them looked very similar so I am not 100 percent of which one of the two that it was but I am sure that it was one of them.

Q.  Just to recount which two of the persons were very similar?

A.  The one that got up from the couch with his arm stretched out, the one that strangled me.

Q.  Yes?
A.  And the one that stood at the kitchen and grabbed the knife for the guy when he asked for it.

Q.  You said they were very similar are you able to say which one of the two you believe it to be?
A.  I think it was the one that got up from the couch and walked over to me.

Q.  You said they were very similar what was the difference between these two men?
A.  One of them had a moustache and one didn’t, they looked very similar as though you know they could have been brothers I thought.

GLEESON CJ:   What page are you reading from, again?

MR ELLIS:   AB 32.

GLEESON CJ:   Thank you.

MR ELLIS:   During the cross‑examination it is clear, as Mr Game pointed out, that there were a number of occasions in which the complainant clearly was not 100 per cent sure of precisely which person, indeed even the “number eight” was, in terms of what had been done on that evening.  So that the Crown case put in the way in which his Honour left it, as I drew to your attention a moment ago from page AB253, did come down to the acceptance of the complainant – and this is how our case would have opened, not knowing what position the accused was to adopt – that the jury would accept the evidence of the complainant that there were four men, that the jury would accept the evidence of the fingerprint officer that the fingerprints of this appellant were present on the coffee table, accept the complainant when the complainant said that those four persons had never been to his flat before, so there was therefore no explanation other than attendance on that night for the presence of the fingerprint on the coffee table, and then accept the complainant when he indicated that photograph number eight was one of the four men who went back to his flat with him.

The issues crystallised somewhat when the accused admitted that he was present, as I have also referred your Honours to, and it did go to the jury on the simple basis that there is no identification issue.  There is no area of concern where, as we all know, the courts have had a history of knowing that people have been misidentified.  It was not a case like that.  There was no prospect that this man had nominated photograph number eight incorrectly.  The nomination of photograph number eight as being a man who was in attendance on that particular evening was correct, overwhelmingly correct and never challenged at the end of the day.

The issue, after the evidence given by the appellant, was whether or not the four persons remained at all times – if I can just find a reference to that.  This issue was actually put to the complainant.  I will come back to that.  I do have ‑ ‑ ‑

GLEESON CJ:   Incidentally, by the time the accused first gave his version of events, he knew that they had a fingerprint?

MR ELLIS:   Yes.

GLEESON CJ:   And he knew that two witnesses, being the neighbours who had seen the affray, had said that they saw three people attacking the victim?

MR ELLIS:   In fact to be strictly correct about that, I think that the situation with Mr Sutherland was that there were three men attacking a fourth man.  Mr Patterson’s evidence, I think, was that there were only ever two men attacking a third man, but that there was – right at the very end of cross‑examination he agreed to a leading question that there was another person, so a fourth, if you like, including the victim, who was standing by the car.   His evidence was though that there were only two people involved in that assault, whereas Mr Sutherland’s evidence was that it was in fact three men who were beating up on the complainant.  So that would have been known, and those numbers therefore being different to the numbers given by the complainant.

GLEESON CJ:   That is the background against which the accused then says what happened?

MR ELLIS:   Yes.

GLEESON CJ:   What was his explanation of why he left early?

MR ELLIS:   His explanation was that there was some arguing going on.  He had had a bong, he said.  He said that the consumption of cannabis tended to make him paranoid.  He said there was arguing, he did not like that.  He was a bit concerned about that, and as a consequence, he had decided he did not want to have anything to do with the arguing, so he said to one of the others – he did not know which one – “I’m just going out for some fresh air.”  He went out for some fresh air and did not return.  He says he walked up to Victoria Road and caught a taxi home to his residence.

HAYNE J:   That is at 166, 167, I think.

MR ELLIS:   Thank you, your Honour, I think that is ‑ ‑ ‑

CALLINAN J:   Mr Ellis, the appellant also knew when he gave evidence that the complainant had cleaned the coffee table where the fingerprint was found, so it must have been put there that night.

MR ELLIS:   That night, yes, that is so.  He did know that, yes, thank you, your Honour, 167 through to 168.  There certainly was no request from the defence for a section 116 warning and whilst Mr Game has said that it was inexperienced counsel, the issue of identification, if it is relevant in a trial, is a fairly basic proposition.  I think even junior counsel know that in relation to identification there are provisions within the Act and warnings are to be given, so ‑ ‑ ‑

CALLINAN J:   Why did the prosecutor not draw attention to it, if it is an elementary matter?

MR ELLIS:   Your Honour, what I was going to say from it, your Honour, is that it is elementary but I think the reality of that trial was that all participants, Crown, defence and judge, were of the view that it was not an issue, given that he had admitted his presence.  Mr Game tends to suggest now that accepting that to be so, though there needed to be a warning because the witness went one step further and in not a very firm way but in some ways was able to attribute certain acts to the appellant and he says that that attributing of certain acts strengthened the Crown case, for a start, and the Crown says, “Well, it was not necessary because we had joint criminal enterprise.  We didn’t need to identify who had committed which particular acts”.  But he says that because it strengthened the Crown case that evidence required an identification warning.  The Crown argument ‑ ‑ ‑

CALLINAN J:   I do not understand that.  It is just I sometimes get the impression that people are conducting these trials without regard to the fact that there is an Evidence Act now which bears upon a lot of the procedures and evidence at the trial.

MR ELLIS:   Your Honour, I think that I would have to concede for the first three or four years following the introduction of the Evidence Act there was a fear about it or a stand back, let us try and run it under the common law and not get bogged down in this difficult Act.  But I think, to be fair, in the last few years, mainly because a lot of the sections have now been dealt with either by the Court of Criminal Appeal or by this Court, so there is less fear or concern with the new than there was in the past.  The people, certainly the defence and the Crown, now would have had seven years under this Act, which is probably a longer period than they ever had working under the common law, so that it is not one of those situations of those who have practised under common law for 40 years not wanting to embrace the new law.  But I think it is fair to say that the failure of anyone to mention it is simply indicative that it was never considered to be a real issue at the trial.

GLEESON CJ:   I noticed that because there was a withdrawal of an appeal against severity, we do not have the remarks on sentence in our papers.  That is understandable, but the remarks on sentence are often a very useful indication of the way the trial judge saw the issues at the trial develop.  It is sometimes worth checking those remarks on sentence to see whether they contain any indication of why things were done and not done at the trial.

MR ELLIS:   We may have those, your Honours, so we will have my solicitors ‑ ‑ ‑

HAYNE J:   While they are looking for that, Mr Ellis, at 194, before the judge began his charge, he invited counsel to make submissions about specific directions that they sought and invited counsel to send by fax “any particular directions that they sought”.  Do we know whether those invitations were taken up?

MR ELLIS:   I do not, your Honour.  I assume that if they were, his Honour must have acted on them, because there was no subsequent complaint. 

HAYNE J:   But again, it might, had it been transcribed, have given us some indication of the way those at the trial saw the issues. 

MR ELLIS:   Yes.  Your Honour, I think if one looks at it, there does not appear to have been any criticism made by the defence.  Whilst the defence corrected his Honour in relation to his Honour’s use of the word “strange” – so therefore he was paying fairly close attention to what was being said – he did not see that it was necessary to even generally mention, “Well, is there identification?  Does your Honour wish to give a direction on that?”  I think it is logical that the Crown’s answer to Mr Game’s criticism is that the direction under 116 is not aimed at identifying the participation of individuals in a joint criminal enterprise; it is aimed at identifying the participants.  That is the issue.  They are the concerns and the fears that it will be the wrong person who is nominated as being part of the group. 

Once the person has been correctly nominated, then many of the problems associated with and the reasons for the giving of the 116 warning no longer apply.  Obviously, the criticism about photographic IDs no longer applies, because he got it right.  It really is much more a circumstantial situation, where you have someone saying – and you may constantly have it, for instance, in a pub brawl situation, where you get different things being attributed to different people, different witnesses seeing different things.  Classically, I think, in the recent case that was here – the matter of Heron, where it was a pub brawl, there was a stabbing.  He agreed that he was in the brawl with the man but denied that he stabbed him. 

Now, he was identified as being a participant.  He did not argue that he was in fact the one who was involved in the fight.  His defence was, “Well, I didn’t stab him to death”.  So in a case like that, 116 would still, it would seem, require there to be given a direction, but the reality is what 116 is aimed to cure or prevent does not exist when it comes to the situation of a complainant such as this trying to identify exactly what was done to him by whom, when the Crown says it does not matter.  Our case is they were all in it,  No matter what they each did as individuals, they are all criminally liable for their own conduct and the conduct of the other three. 

GLEESON CJ:   That is an interesting point that you raise about Heron.  There was no argument in that case, as I recollect, about section 116 but there were a number of witnesses who had, from one point of view, given identification evidence; a number of people who had said, “That man” – who, as I recollect it, had been ‑ ‑ ‑

MR ELLIS:   Was fighting with ‑ ‑ ‑

GLEESON CJ:    ‑ ‑ ‑ colourfully described by somebody – “That man was in the car; he was at the hotel; I saw him playing billiards; he was in the fight”. 

MR ELLIS:   Yes, “He was in the fight”.  That is so. 

GLEESON CJ:   Is that all identification evidence within the meaning of section 116? 

MR ELLIS:   Well, I think it is when you look at the definition in the dictionary, that is, that it is an assertion by a person to the effect that the defendant was or resembles a person who was present at or near a place where the offence for which the defendant is being prosecuted was committed. 

GLEESON CJ:   Well, that may raise a question of construction of section 116, it seems to me.  If read literally, it is hard to think of a case in which there is not identification evidence ‑ ‑ ‑

MR ELLIS:   I think that is true. 

GLEESON CJ:    ‑ ‑ ‑ of that kind, but there are many cases in which there is absolutely no issue about the identification evidence.  So I would have thought there was a question of construction of section 116 as to whether it applies in a case where there is no issue about the identification evidence. 

MR ELLIS:   I suppose it must be – just thinking on my feet, say a sexual assault case, where the defence is consent, nevertheless, when the complainant gives evidence, she gives identification evidence that the accused was present, had sexual intercourse with her, she, of course, says against her will, but, nevertheless, she is giving evidence which places the defendant at the scene and she is making the connection between him and the alleged offence and in that case, I know, identification directions are never given.

GLEESON CJ:   This is absolutely off the top of my head, but it would not require major surgery on section 116 to imply the word “disputed” before the word “identification”, would it?

MR ELLIS:   Off the top of my head, your Honour, probably not, but ‑ ‑ ‑

GUMMOW J:   See, the word “admitted” suggests admitted after a dispute about something or rather.

MR ELLIS:   That certainly is a possible way ‑ ‑ ‑

HAYNE J:   You would get it also out of “accepting”.  The jury has to accept the evidence if there is a fight about it, I would have thought.

GLEESON CJ:   Why would you be telling the jury “there is a special need for caution before accepting identification evidence” if the accused does not disagree with the identification evidence?

MR ELLIS:   Yes, that is the very problem, with respect, your Honour.

CALLINAN J:   What Justice Gummow says is pretty significant really because the word “received” or “tendered” might have been used, but it is “admitted”, which certainly suggests a dispute.  But on the question of relevance of identification evidence, in New South Wales a very strict view has always been taken about the publication of photographs of accused persons on the basis that identification is so frequently a relevant matter in the criminal trial.

MR ELLIS:   Yes, that is true, your Honour, and it is really only in those cases where there are no leads towards a potential accused where you do get any publication of photographs, I accept that.

CALLINAN J:   Yes.

MR ELLIS:   If the section were to be constructed in a way which would result in it being given what clearly must have been its true intent, that is, to cover cases where there was an issue and there were potential problems, so therefore a special need for a warning, generally, in terms of construction, a reasonable approach is for a court to construe a provision for the purpose in which it is clearly intended, and this is a section where its purpose is clear:  in all cases where there is a dispute about a person’s identification a warning should be given.

GUMMOW J:   Is there anything in the anterior law reform materials that bears on this debate for this question?

MR ELLIS:   We looked at it, your Honour.  It does not actually help that much.  One of the problems was that, for instance, for both the first and the final report were done before Domican had been brought down.  Kelleher had been decided, which was sort of the forerunner to Domican and is not really all that different in principle to Domican.

McHUGH J:   The term “special need for caution”, does that not come out of that English case of Turnbull in 1977?

MR ELLIS:   It does, and I think was referred specifically in Kelleher and then again in Domican.  But from my recollection of reading it, your Honour – and it is at least a week since I went through it fairly quickly – it does seem that there was some discussion about it being mandatory and it does seem ‑ ‑ ‑

GUMMOW J:   Yes, but the question is mandatory when and in what circumstances.

MR ELLIS:   Yes, that is so, your Honour, and that is why, as I say, it does not help a lot.  There is some reference to it, my junior points out, in Clarke’s Case, where the court touched on what was intended or what the interim report had dealt with, and it does seem to me that the mandatory requirement that they were seeking was a mandatory requirement that in all cases involving disputed identification there must be a direction.

GLEESON CJ:   You see, as has been pointed out already, when evidence is tendered in the Crown case time and time again the Crown will not know whether it is disputed.

MR ELLIS:   Yes.

GLEESON CJ:   The prosecution has to lead the whole of its case before the accused says anything.

MR ELLIS:   Yes, and anticipate as much as possible.

GLEESON CJ:   Exactly, and then the moment the accused opens his mouth all sorts of potential issues often fall away.

MR ELLIS:   Yes.

GLEESON CJ:   There will be many, many cases in which evidence that satisfies the description of identification evidence has been adduced in the prosecution case which, as a result of the way the defence case is conducted, ceases to be in contest.

MR ELLIS:   Yes.  A sexual assault case, your Honour, where the accused has exercised his right to remain silent.  The Crown leads evidence from the complainant which identifies the accused as being the person who had sex with her.  She says, “I was not consenting”.  He then gives evidence and says, “Okay, I agree.  I was there and we had sex but it was consensual.”  That is something that happens day in, day out, where the Crown does not know exactly how the case will be run.  On other occasions it may be that the accused will say, “Well, it wasn’t me”, but that is far rarer.  Generally, it is either, “It didn’t happen at all” or, “Yes, it did happen, but it was consensual.”

So, it does seem rather strange that in so many cases a jury really is to be taken on a red herring, given more directions which only complicate the matter and then have the judge probably at the very end say, “Well, but in any event in this case the accused admits he was there, so there is no difficulty.”  That does seem a rather ridiculous path to follow but also, I think, there is a problem with the drafting because it certainly leaves it open when one reads it that seems, at least at first blush, to be mandatory in all cases rather than just mandatory in cases where it is disputed.

GUMMOW J:   Yes, we have to pick up whether it is second blush.

MR ELLIS:   Yes, we would not argue against that, your Honour.  Perhaps the difficulty with admitted is the Crown does tender evidence but it is not until it is actually accepted by the court or by the judge that it becomes admitted.

GUMMOW J:   Now, what would be the impact of this other construction of 116 on this case?

MR ELLIS:   On this case the Crown submission would be that it would not be necessary to give a 116 direction.  So, our submission does not change.  We say whether you construe it as mandatory - we accept the Act requires that you do it but we say in any event it is an irregularity which does not go to a material issue and cannot produce a miscarriage of justice.  It is not even a question of the proviso because you do not get to a miscarriage of justice.  I mean, in the sexual assault case where consent is the issue and an identification direction was not given, you can hardly say that it generates a miscarriage.  It simply is an irregularity which is not material.  So, that is the Crown’s ‑ ‑ ‑

GUMMOW J:   But would there be any irregularity in this case on the particular construction of 116 we have been talking about?

MR ELLIS:   The second blush, no, there would be no irregularity.

GUMMOW J:   Why is that?

MR ELLIS:   The Crown would say that it is aimed specifically at disputes as to identification in terms of the placing of this man in that unit, not disputes as to exactly what he did in that unit.  Providing he is placed there, that is the issue.  That is where the danger falls in misplacing him or wrongly placing him as part of this joint criminal enterprise.

HAYNE J:   How does that work consistent with the definition of identification?  There was a dispute at trial whether at the time of the obtaining of the knife, the attempted strangling, et cetera, the accused was there, that being disputed and the complainant saying, “I identify the man who was either reaching for the knife or strangling me.”

MR ELLIS:   Your Honour, for the moment, if we just take an example where you have a situation where the victim is unable to say or to attribute to anyone any particular act and simply says, “There were four men and this man was there in my unit and then those four men participated in these crimes against me”, the Crown says that then it simply becomes not a question of identification, it becomes a question of circumstantial evidence.  There were four men present, four men involved.  One of them had previously been identified, so it is not a question of identification.  The identification takes place prior to any commission of the offence because the identification is, “Four men came back to my unit with me.  This man was one of them.  Those four men then participated in a crime against me which included a crime inside the unit as well as a crime which then spilt out onto the street.”

So the Crown’s argument is that identification is not the issue.  It is the accuracy and reliability of the complainant’s evidence that the four people, one of which was the accused, who returned to that unit with him were all involved in this joint criminal enterprise.  As his Honour said, from go to whoa, the Crown is that there were four men who participated in this crime, four men who came back to the unit.  So that it is not identification.  Once he is one of those four, that is the identification, and that is what he does not dispute.  Once that happens, it is then simply a question of, do you accept the complainant when he says four men were involved.

HAYNE J:   For my own part, it seems to me that that is a chain of argument that is requiring rather larger surgery on the Act than any that we have hitherto discussed and, for my own part, I would find it useful if, on reflection, the parties wanted to put in some written submission on this question of construction of the Act and the solution of the apparent conundrum that we have been debating.  If the parties were to do that, but no doubt that is a matter for the Court as a whole.

GLEESON CJ:   And it might be useful if the parties could have a look to see whether there are any textbooks that have dealt with this subject.  It is a little surprising that it is a question that has only arisen so recently as a few minutes ago ‑ ‑ ‑

MR ELLIS:   It probably did not, your Honour.  It did arise in Clarke which was 1997.

GUMMOW J:   That assumed the construction that everyone has been adopting, did it not?

MR ELLIS:   No, I think that case determined that it was a mandatory ‑ ‑ ‑

GLEESON CJ:   Yes, but that is ambiguous.

MR ELLIS:   Yes, I accept that, your Honour.

GUMMOW J:   That is the problem.

MR ELLIS:   Yes.

CALLINAN J:   Mr Ellis, you will have to tell us how section 190 and any other sections of the Act fit into that construction, how they bear upon that construction.

MR ELLIS:   Section 190 does not help ‑ ‑ ‑

CALLINAN J:   It is really against that construction, is not it, strongly against it, in a sense?

MR ELLIS:   I would not have said that, your Honour.  I think the purpose of section 190 is not ‑ ‑ ‑

CALLINAN J:   You need not develop it now, Mr Ellis, if you do not want to.

MR ELLIS:   I am probably happy just to develop this one aspect of it, that section 190 is not specifically aimed at any interpretation that any particular section may have.  It is really a provision which allows the parties to waive certain requirements at certain times.

CALLINAN J:   Yes, but it may carry with it an implication that unless a provision is specifically mentioned then it does involve mandatory compliance – full compliance with it.  It may.  I am not saying that it is necessarily so.

MR ELLIS:   I would not have put that on it.

GLEESON CJ:   Well, both parties will have seven days from today in which to let us have any written submissions they wish to make on the meaning and effect of section 116.

MR ELLIS:   If the Court pleases.

GLEESON CJ:   And, in particular, on the question of how section 116 applies in a case where either there is no dispute about the identification evidence, or where the area of dispute about the identification evidence is limited. 

MR ELLIS:   If the Court pleases.  Your Honour asked for, and I can provide copies of, the reasons for sentence. 

GLEESON CJ:   Thank you. 

MR ELLIS:   I am not sure if seven is sufficient. 

GLEESON CJ:   They seem to deal mainly with subjective matters. 

MR ELLIS:   Yes.  Your Honour, there is a short reference at the bottom of page 4: 

However it is also clear to me from the evidence placed before the Jury at his trial that while the prisoner participated in the events that took place both inside the unit and outside in the street he was not the assailant who actually stabbed the complainant. 

But he does not take it any further than that, I do not think.  As I said, the Crown’s position is that this is an irregularity.  If one works on the construction that it is mandatory in the sense that it should be given in all cases regardless, the Crown says this would be an example of an immaterial irregularity because it does not, could not, produce any miscarriage.  The fall‑back position would be that if the Court thought there was some miscarriage, that the proviso would apply, in that there was no substantial miscarriage.

So far as the issue of no direction in relation to lies ‑ I am sorry, your Honour.  At appeal book 68 to 69, that contained the answers that I referred to before but could not locate in relation to no one leaving.  From about line 40: 

Q.  So no‑one would have had the opportunity to leave the unit for example, because it all happened so quickly, that’s right isn’t it? 

this was cross‑examination –

A.  Yeah. 

Then over the page: 

Q.  No‑one left the unit in that time ‑ ‑ ‑
A.  No ‑ ‑ ‑

Q.   ‑ ‑ ‑ of the group of five of you.  That’s right, isn’t it? 
A.  Five of us, yeah. 

Q.  See, I suggest to you that indeed one of the group did leave the unit and never came back. 
A.  That was ‑ ‑ ‑

Q.  Prior to the assault upon you? 
A.  No, the four of them was there. 

GLEESON CJ:   According to the complainant, what time elapsed between the time when the five of them arrived at his unit and the time when the assault commenced?

McHUGH J:   It could have been 15 minutes to an hour, could it not?

MR ELLIS:   There are a few different versions, but my feeling for it was that we were talking at least a period of 20 minutes and potentially a fair bit more, but a minimum, it would seem, of about 20 minutes, because at least two bongs were consumed, some soft drinks consumed, then on the accused’s version it was perhaps a shorter time before the arguing.  He, I think, said 10 to 15 minutes he was there.  At page 68 he does confirm that, yes, 10 to 15 minutes that he was present.  So it was probably a little longer, generally, on the Crown case, but there is no finite statement of that anywhere.

In relation to the lies, whenever credit issues are run in trials, they are run on the basis that there have been different versions and it is very difficult to accept what Mr Game said about versions and, in this case, there being a need for a warning, because there were versions that the Crown pointed out and relied on, that there was a danger that the jury would therefore take one step further and refer to consciousness of guilt.  The reality is that there are many cases in which the Crown chooses not to run with lies, mainly because, if you do so, it requires that the lies be identified, that the lies be proved, that the lies be material, and that there be no reasonable explanation for the lies.  So it is a strict test and regularly the Crown will not, in fact, run with a proposition that there is evidence of guilt from what a person has said.

The significance, in this case, was that it was the use which the jury could make of that evidence in relation to other evidence, that is, the evidence of the accused when he gives his exculpatory explanation.  The jury were entitled to be told, “That the value of this evidence is its value in assessing whether you accept – or whether what the accused has said raises a reasonable doubt in your mind”, and there is, in fact, no reference to that term “lies”.

The written submissions of the Crown, I have highlighted a number of areas where the trial judge goes to the directions in terms of those versions, but perhaps if I start by taking your Honours to 168 of the appeal book, line 10.  That is the basis of the Crown case.  It is a cross‑examination:

Q.  Mr Dhanhoa when you spoke to the police on 27 September you were telling them the truth as best you could remember it at the time that’s the situation isn’t it?
A.  On the ‑ ‑ ‑

Q.  When you spoke to the police at Burwood on 27 September?
A.  Yeah, yeah.

Q.  At that stage you didn’t remember being at Balmain at all?
A.  No.

Q.  And you said that you hadn’t been to the Bridge Hotel before and hadn’t been there since, the Bridge Hotel wasn’t known to you?
A.  Mm.

Q.  You said that you know nothing about the stabbing and the robbery because you weren’t there you had left the premises by that time?
A.  Yes.

Q.  You are telling the truth here today as you were telling the police on that day the truth as best you recollect it?
A.  Yes, I am.

That is not cross‑examination which is calling this man a liar.  There is an acceptance within that that the proposition was that, as best as he could recall at the time, he gave his answers, and then ‑ ‑ ‑

CALLINAN J:   It might depend upon how the question was put.  I must say, I do not find that very persuasive.

MR ELLIS:   I accept that demeanour or the tone in which a question is asked can impact, but if one ‑ ‑ ‑

HAYNE J:   All the cross‑examiner is doing is tacking the witness down before 169, 170 et cetera where he says “That is all lies”, is it not?  What more do you get out of it than that, Mr Ellis?

MR ELLIS:   Well, your Honour, what is happening is that he is trying to show that there was a statement made at a certain time.  There is an explanation that at that time he said things because of his lack of recollection.  Then there is the suggestion that he did in fact get the police brief and therefore has been able, as it were, to determine a version.  The Crown is saying, “You won’t believe him”.  The Crown does not have to go so far as to say “Well, he is lying now, or he was lying back then, or he is lying on both occasions”.  The Crown simply says, “Well, he said this when first spoken to.  He gives this explanation.  He now says X but you know that he has had an opportunity to see the Crown brief and to determine what he wants to say.  When you look at all of that, he doesn’t have any credit, you will not accept him.”

CALLINAN J:   He is telling lies.

MR ELLIS:   But the subtle distinction is that the Crown does not have to prove or establish that he is telling lies.  The Crown regularly ‑ ‑ ‑

CALLINAN J:   No, leave the inference there to be drawn by the jury.

MR ELLIS:   No, your Honour, what ‑ ‑ ‑

HAYNE J:   He is engaging in a few terminological inexactitudes, is that your point, is it, Mr Ellis?

MR ELLIS:   No, what it is engaging, your Honour, is an endeavour to discredit the witness, but not an endeavour to say, “You can look at what he said and use what he said as proof of guilt”.  All that is being said is, “You look at what he has said and you will use that to disbelieve him”.  And there is a big difference.  One of the important aspects is that if a direction is to be given in a case like this, does the judge have to nominate what are the potential lies?  If the Crown is not wanting to go to the Edwards situation, is not nominating lies, what in fact does the judge direct the jury?

CALLINAN J:   The judge did not have to nominate the lies.  If they were lies, it was as plain as a pikestaff what they were.  They were the matters that he told the police officer.

MR ELLIS:   That may not necessarily be so.  It may be more significant the matters that he told the jury.  I mean, that was the bigger thrust.  The thrust was, “You can’t accept his evidence in this courtroom when he says that he left”.  That was the area of attack that the Crown needed.  The Crown did not really need to attack him in relation to what he had said to the police.  The attack had to be on his evidence that he had left early because that was the issue in that case:  were there four there or were there three?  If there were three, he is not guilty, or if there is a doubt about whether there were four, he is not guilty.

But if the direction is given, how does it assist?  Having not had these things raised, they are told that they are lies when the Crown has not necessarily asserted that they were lies.  If you go to some of the things which were said to the police, for instance, “I don’t know how the fingerprint got there”, how does the Crown ever prove that that is a lie?  Even when he gave evidence he was not really able to say how the print got there, other than it got there because he was in the unit.  But it is not literally a lie.

If you go to what this Court said in Smith, there is a difference between something which is not true and something which is a lie.  Now, given that there was an eight month delay between being spoken to by the police and when he gave his evidence in Smith (1992) 176 CLR at 268 the Court said:

It is necessary to say something as to the finding that the appellant lied in the Court of Appeal.

This case involved a disciplinary matter against a lawyer.

There is a difference between the rejection of a person’s evidence and a finding that he or she deliberately lied.

The Court goes on, and then a little further down:

But as a matter of logic and common sense, something more than mere rejection of a person’s evidence is necessary before there can be a positive finding that he or she deliberately lied in the giving of that evidence.

What it would mean, for instance, in a case where it was simply a one‑on‑one situation, sexual assault, consent is the issue, the complainant says, “I did not consent”.  The accused gives evidence and says, “She did consent”.  The rejection of the accused in that situation does not entitle the jury to say, “Well, he is a liar.  The fact that he is a liar I will use to find him guilty, I will use as evidence to find him guilty.”

All that happens regularly in situations like that is that rejection of evidence allows the Crown to prove its case if it is the rejection of an accused’s version.  It is important that there be maintained a delineation between the Crown running a case wherein they are simply saying, “You will reject the evidence of the accused.  You will accept, because there are variations in it – you will accept or be more comfortable in accepting the complainant’s evidence because of those problems with the accused” and, yet, if a direction is to be given then the jury are told, “Well, he is lying.  Don’t use that for consciousness of guilty.  Don’t use that as evidence against him”, when in a lot of those cases it is never run as an issue and the jury would not logically, necessarily conclude that type of thing.

Zoneff, itself, recognises that there are cases in which it will not be to the advantage of the accused to receive a direction of this type.  I take your Honours to Zoneff.  At page 244:

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 –

does contend it is a lie.  Then, at 245, paragraph 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 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 –

Again, is it his answers to the police, is it his answers in his evidence, is it both, or some of them.

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.

And a little further down:

A direction which might have appropriately been given and which would have allayed any concerns which the trial judge may have had –

Inherent in that is an acceptance that, yes, there will be cases or there may be cases where there is a real concern that the jury will, without any assistance from anyone else, jump to or make that leap and use consciousness of guilt, but also inherent in the approach of this Court was that there are lots of cases where that will not happen. 

There are lots of cases where in fact it would be unduly raising the issue to a point where it could only assist the Crown and could not assist the accused for a direction to be given, and if a jury is genuinely simply looking at a matter as an issue of credit, which is a very regular occurrence, and they have not been considering simply saying, “Well, he lied, therefore he’s guilty”, to actually put that into their minds is a counterproductive arrangement.

Now, in this case again there was no seeking of a redirection in relation to the giving of such.  Clearly, the counsel running this case is happy with the way it was put by the Crown, happy that the issue has not escalated to one of consciousness of guilt, because an Edwards direction is the last direction any accused wants, and the reality is that if directions of this type are to be given, there is no reason why the Crown ought not to more regularly push in fact for the Edwards direction, rather than simply saying, Well, we won’t worry about running with the consciousness of guilt.  We could probably get up on it, but we’ll just run with credit, that is all we need”.

If in fact a direction of this type is to be given in every case, or in cases of this type even, then there is no reason why the Crown in fact ought not to then set out to prove lies, which would then cause the trial judge to have to give the Edwards direction, because it is a matter for the jury to determine whether it is a lie, whether it is a deliberate lie, whether it is a deliberate lie going to a material issue and whether or not there is any reasonable explanation consistent with innocence for the lie.

So that what it does, to change the way the law currently stands with following Zoneff will lead to a lot of complications in this area.  It really takes a simple case where you are saying, “You have word on word, this person has a number of different versions.  That has to do something to his or her credit and you take that into account when you determine what you are satisfied of beyond reasonable doubt and whether the evidence from the complainant is sufficient to so satisfy you”.  The fact that nothing was sought from the defence is indicative that in this particular case it was not something which was required, it was not something which defence counsel thought the jury were going to automatically rush off and draw the inference that in fact it was a consciousness of guilt.

For instance, a perfect example would be, my learned friend said in relation to the statement to the police that he had never been to the Bridge Hotel, that that was shown to be a lie, but at 170 of the appeal book, if you go down to the bottom, he is asked at the top at line 20 - that was the reference 15 that my learned friend took the court to:

Q.  You knew you were going to the Bridge Hotel because you asked the cab driver to take you there didn’t you?
A.  Yeah.

Q.  You knew about the Bridge Hotel prior to arriving at the hotel?
A.  Yeah.

That is then used to say that establishes a lie about the Bridge, but if you go down to the bottom ‑ ‑ ‑

HAYNE J:   The prosecutor goes on to say:

Q.  So it wasn’t true that you had never heard ‑ ‑ ‑

MR ELLIS:   Yes, your Honour, I am not saying that the prosecutor never put that it was not true, but never put that it was a lie.  There are untruths and then there are lies.  He did go on say:

Q.  So it wasn’t true that you had never heard of the Bridge Hotel before?
A.  I heard of it that night I was told that it was open after twelve.

Then he works his way down to saying that:

A.  I knew there was a hotel on Victoria Road down near the bridge that was what I was told I don’t think I used the words Bridge Hotel.

Q.  What did you say to the cab driver take me to the Bridge Hotel?
A.  I don’t think I did.

Q.  What did you say to him just take me for a drive down Victoria Road?
A.  I said there’s a pub down the road that’s open twenty-four hours that I want to go to and he drove me down.

Now, that is not an unreasonable explanation for a man who is at a pub, he has had a few drinks, he is looking for an all-nighter and a local cab driver is taking him.  He does not need to nominate the name of the hotel.  That is just an example of how it is likely that it was an untruth, maybe not, but it is a different story to say that you can prove that that was a deliberate lie.  The explanations for that and for some of the other statements that were made are not unreasonable.

In any event, the thrust of what the Crown wants to criticise is what he has done or what he has said in his evidence, not what he said to the police, but what he said in his evidence.  The use of what was said to the police is merely to say, “Look, it is a different version.  He gives an explanation for it, but you might think when you weigh it all up”, which is in fact what 250 says, the Crown would say if you read the judge’s directions at 250 in a reasonable way.  He says:

The Crown says that in regard to you will remember what the accused said when he was spoken to by the police officers at the time of his arrest and compare that to what he says to you now remembering that he received the police brief in this matter in February.

If you go back to the previous page to put it in its context, there is no mention of lies on the previous page.  All that is mentioned is fingerprints and photographic identification, and that is a sweeping statement, “Look at it on his credibility”.  That is what that is going to.  It is not raising lies.  It may be raising untruths, but that happens every time a direction will be given on credibility.  If one adopts the approach of Mr Game, there is no way a judge can ever give a direction on credibility which does not impinge and cannot then be suggested that it is in fact raising lies, therefore, you have to give the Zoneff type midway direction.

The Crown says that at the moment the law would appear to be that there are three avenues, that you can simply have a situation where there are inconsistencies and where the Crown is not able or does not seek to prove lies.  Then you get a general direction on credit of witnesses and as they are not lies, there is no danger in that situation of them using those as lies going to consciousness of guilt or demonstrating consciousness of guilt.  The direction also is required to include the explanation given by the accused for the lies.

Then the next category is where there are inconsistencies, where there are lies, in fact, but the Crown does not rely on lies as consciousness of guilt, it only asks for a direction in relation to credit.  Then it is a situation that in any given case the judge will need to assess the dangers or the likely dangers of the jury wrongly drawing the inference of consciousness of guilt.

That provides a flexibility for the trial judge to determine in any given trial whether it is necessary or whether there is a concern that a jury will make that extra step.  If that is so, then he gives the general direction on credit, and then he gives the direction that once he has concluded there was a danger of the jury using the lies, a direction as to what would constitute a lie, and that they cannot use it as consciousness of guilt, and also the directions re the lies.

Then obviously the last category is the Edwards situation where the Crown relies both on credit and consciousness of guilt and the directions on both of those are given as per Edwards.  So far as ‑ ‑ ‑

HAYNE J:   Just before you depart from this aspect of it, Mr Ellis – may I preface it by this:  it seems to me that a risk in this area of lies is the creation of over‑sophisticated rules.  The rules that are to be established must be capable of ready application by trial courts.  In any case in which an accused person gives evidence, it is almost inevitable there will be a challenge in cross‑examination at least to the accuracy but most commonly to the truthfulness of the evidence given by the accused.  That is so, is not it?

MR ELLIS:   Yes.

HAYNE J:   In any case in which the accused gives evidence then, there is hovering around in the trial a question about the acceptability of the version of events given by the accused understanding acceptability in onus and burden of proof terms.

MR ELLIS:   Yes.

HAYNE J:   What is the criterion which you advance which a trial judge should adopt in deciding whether to tell a jury that they may not conclude from the proposition, “I think the accused was lying, therefore the accused is guilty” - what is the criterion that the trial judge should employ?

MR ELLIS:   I think the first thing that must be said is obviously the trial judge is in the best position to determine what the dangers may be.  He may not be in a perfect position, but he is in the best position, and that will depend clearly on not only what is said, but how it is said, as his Honour Justice Callinan mentioned before.  I mean, the manner in which the Crown conducts the cross‑examination, for instance ‑ ‑ ‑

HAYNE J:   Can I shell out a couple of cases just to put them to one side.  Leave aside the rare case in which a conclusion that there was a deliberate untruth told by the accused is said to be important a la Edwards; leave those to one side.  In some cases, the cross‑examination or the course of address by the prosecutor may place such emphasis on the truthfulness of the evidence given that there would seem to be a powerful reason for the judge to warn the jury of the danger.  If you leave those two kinds of case out of consideration, is there any third category?  Is there any third category that has to be divided, or have we covered the whole field by Edwards and such an emphasis on truthfulness as to require warning? 

MR ELLIS:   Your Honour, I think the field is covered presently because of the way in which Zoneff dictates that it is a discretionary issue for the trial judge to determine in any given case.  So, if it is a case where the accused gives evidence, obviously that would be a case which a judge would look more closely at than had the accused stood mute.  But there is a significant difference between the Crown challenging, as the Crown must - say, in a one‑on‑one case, the Crown must challenge the accused.  The Crown clearly is saying to the jury, “The complainant is telling the truth”. 

HAYNE J:   “He’s not”. 

MR ELLIS:   Inherent in that is that he cannot be if she is, generally. 

GLEESON CJ:   Well, there is a difference, you seem to be saying, between the Crown mounting an attack on the credit of the accused and the Crown inviting the jury to infer that lies were told because of a consciousness of guilt.  Indeed, issues of corroboration might arise where the second kind of argument is mounted.  But the question is whether there is an intermediate situation, of which Zoneff is a practical example, in which it is not clear whether the Crown is mounting an argument based on consciousness of guilt and the judge assesses that there is a serious risk that the jury might understand that they are either being invited to reason in that way or that it is open to them to reason in that way. 

MR ELLIS:   Yes.  As your Honour said, Zoneff was an example of that category and there is no doubt there are other examples. 

GLEESON CJ:   Well, take what always seemed to me to be a related area in relation to consciousness of guilt, and that is evidence of flight.  Let us suppose that the police say that when they went to arrest an accused person, he ran away, full stop.  That is the evidence.  He ran away when they tried to arrest him; they chased him and they caught him.  In what circumstances should the judge give an Edwards type direction about flight? 

MR ELLIS:   It would depend upon any explanation that was given.  Sometimes it may have been a perfectly reasonable explanation; “There was a warrant out for my arrest for some other offence”.

GLEESON CJ:   Suppose he gives no explanation at all.  Suppose the totality of the evidence on the subject of flight is that when the police came to get him he ran away.  In what circumstances should the judge warn the jury about using evidence of flight as evidence of consciousness of guilt?

MR ELLIS:   I think that you have to have a circumstance which is clear.  You cannot simply have a simple proposition like that.  It is rather dangerous.  That would be a case in which as the Crown I would not ask for a consciousness of guilt, absent any other knowledge or information, because there can be so many reasons why a person might run - from simple fear.  It is the same with lies.

GLEESON CJ:   Which is like the fact that there are so many reasons why a person might tell lies when confronted with an accusation.

MR ELLIS:   That is so, your Honour.  There are the cases where there are no lies.  It is this situation of the Crown saying, “You will accept the complainant, obviously, you will reject the accused”.  The Crown does not then get into an exercise of pointing to individual lies.  There are other cases where you get a third party witness who might be able to give evidence which confirms that the accused when he gives evidence, if you accept that third party, that he has told a lie about a material situation.  Sometimes in a case like that the Crown will still not ask or run with a consciousness of guilt.  That, though, is the type of case where Zoneff may be of concern because it is a case where it is far more likely that the jury will go that next step without assistance or without the Crown asking and refer to consciousness of guilt.  So, in a case like that one would expect that Zoneff would apply but Zoneff seems to be able to cover the field because of the discretion that is given to the trial judge to determine in any given case whether there is a need to say to the jury, “You can’t use a lie as evidence of guilt; you can only use the lie in assessing his evidence in terms of his credit”.

There are many cases, the Crown says, where to actually give such a warning does escalate it, does raise the emphasis.  It may be, for instance in the flight example, that there does exist, unknown to all because the accused did not give evidence, that he was simply scared.  He was a young man scared of the policeman or thought it was someone else who was going to get him – it was a non‑uniformed police officer.

Zoneff actually dealt with flight and, your Honours, at page 245, there is some – I will just find the particular reference.  I guess that in a sense it does not matter whether it is lies or flight because in each case the jury may be inferring or the Crown is asking that you use that evidence directly to prove guilt, just use it for a consciousness of guilt rather than taking it in when assessing other evidence.

McHUGH J:   Well, Crippen is the classic case.  The body of the wife is later found buried in the cellar.  In the meantime Crippen and his mistress have fled to the United States and it was regarded as a powerful argument against him.

MR ELLIS:   Well, there are many examples of that type and I think that certainly the authorities to this point, for instance, the English authorities would still seem to be suggesting that if the Crown does not run with consciousness of guilt, that that is a significant factor and that there ought not to be automatically a direction given simply because the Crown chooses not to run with consciousness of guilt.

The latest position in the English courts is found in Burge v Pegg [1996] 1 Cr App R 163. At page 173 of that report, between C and D:

As there seems to be at the moment a tendency in one appeal after another to assert that there has been no direction or an inadequate direction, as to lies, it may be helpful if we conclude by summarising the circumstances in which, in our judgment, a Lucas direction is usually required.

The Lucas direction is not strictly an Edwards direction.  It is more a corroboration direction but nevertheless it is of the consciousness of guilt type.

There are four such circumstances –

which they then list, and then the Court concludes in the last three lines:

If the matter is dealt with in that way ‑ ‑ ‑

GLEESON CJ:   Well, 4 is in line with Zoneff, is it not?

MR ELLIS:   Yes.  Those four propositions would appear to completely cover the field, which is, I think, part of what your Honour Justice Hayne was saying before.  The reason for that is that 4 is wide and it allows for appropriate judicial discretion and that there is, the Crown would say, no need to change the law and that in this particular case the Crown would say that credit was run, there was no danger and no mention anywhere of the word “lie”.  My written submissions include in paragraph 40 a reference to the places that the trial judge made reference to the police statements and the sworn evidence.  It is a 58‑page summing up and there are only the four references – well, there are four references including one which was the retraction of the use of the word “strange”.

So that, despite the written submissions of the appellant saying that the alleged lies were given prominence, the reality is that they were not given prominence at all and that it really did simply go and was left, as it says, at AB250, the Crown was simply asking them, when they came to assess the accused, look at everything that he has said, both at the police, since then, look at what he knew, when he knew it, use that to assess him when you are assessing whether the Crown has proven its case, because then it was really a question of whether that raised a doubt so far as the evidence of the complainant was concerned.  It was a case where it was a fairly low profile.  It is an example of a person who gave evidence but, nevertheless, it was a fairly low profile.  If one was wanting to – I am not suggesting my approach would have been the same as the Crown.  I think that it was a very mild way in which he was cross‑examined about some of those previous statements, but it may simply be that the answer is that there were a number of reasonable explanations for some of them and that the Crown necessarily had to be a little careful about selecting all, and if you do not select them all, then that of itself raises some issues as to whether or not there is any validity in what you are saying.

Your Honours, I do not know that I can take it any further.  I would rely on the balance of the written submissions.

GLEESON CJ:   When you are doing those submissions on the Evidence Act, you might take account of this, and Mr Game also.  Section 190, dealing with waiver, refers to a formal waiver by order of the court. It does not refer to what I would have thought is the kind of waiver that happens 99 out of 100 times in the course of the conduct of a trial.  That is, evidence is given that, according to the rules laid down by the Evidence Act or the common law, is not admissible but is received simply because nobody has an interest to object to it.

MR ELLIS:   Yes.

GLEESON CJ:   And in considering the construction of section 116, it might be worth bearing in mind that context, which applies to the whole of the Evidence Act.  That is to say, that a whole lot of things are done at trials which are not in conformity with the requirements of admissibility laid down by the Evidence Act but which are done simply because there is no objection.

MR ELLIS:   Yes.  They are rules of evidence which are available to the parties to avail themselves of but if the parties choose not to, by consent, a lot of material is - absent objection.

GLEESON CJ:   Yes, it just occurs to me that that context may have some bearing upon the construction to be given to section 116.  We will adjourn until 2.00 pm.

AT 12.50 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.01 PM: 

GLEESON CJ:   Yes, Mr Game. 

MR GAME:   If the Court pleases.  I will be fairly brief, but hopefully long enough to justify the Court having come back. 

HAYNE J:   No sense of obligation, Mr Game. 

MR GAME:   I could not say I have no submissions in reply.  It would be embarrassing, at least.  Whatever it was that this identification was – and I will come to that in one moment – there is no doubt that it was in dispute.  The prosecutor thought that the accused said it was in dispute, in that passage at 191 that Mr Ellis took you to, and he was obviously talking about the identification of him as the person that did the assault.  But the prosecutor said to the jury that it was important, regardless of the fact that the accused did not dispute that he was there, and two pages later, in summarising the defence submissions, the judge referred to what was said about the identification, or what the victim said about identification to the police, which must include a reference to this.  So it is clear, in our submission, that this was a dispute of evidence. 

Now, Mr Ellis puts an argument that says the identification was of a person who he had seen previous to the assault, so he says.  So in effect he is shifting it back to one of the four persons.  But that is not actually what Mr Cipolla said, because what Mr Cipolla said was that he identified him as the person who strangled him.  “So it is actually the person who assaulted me”. 

Now, we do not know if the victim took no notice at all of the person until he assaulted him, or some notice, and then a lot more notice when he was assaulted, but if you assume that if you throw all of the weight onto the assault with respect to the identification, then all of the dangers of identification exist, notwithstanding the fact that the accused admitted that at some earlier point he was present.  The same applies to a lesser degree if you throw some of the weight onto it.

Now, if you go the other way, which is to Mr Ellis’ argument, which is that it was of a person previously seen, ie one of the four, then you still have a danger but you have a slightly different danger which is the danger of him describing as the person, as I have put it in the second category, as somebody who he previously saw as one of four present, that is to say, he has carried over a mistake about the four being present to giving the accused a role and strengthening immeasurably the Crown case fixing on the accused.  We say that you cannot actually be sure because nobody sought to analyse in minutiae what particular perceptions the identification was based on.  But you cannot exclude in the way in which it has been put to you by saying this is just a dispute about whether there are four people.  You cannot exclude the importance of the identification evidence in the case, and that is what the prosecutor perceived when he said to the jury and recounted by the judge that even so, the evidence of identification was important.

McHUGH J:   But the issue must be whether there was an issue about identification at the trial.  That must follow from the fact that the section talks about “accepting” the identification and giving:

reasons for that need for caution, both generally and in the circumstances of the case. 

So there has to be an issue about it at the trial before 116 can be invoked.  Otherwise, what is the point of the judge giving directions as to the need for caution in the circumstances of a case unless it is an issue in the case?

MR GAME:   I understand that but, your Honour, it must be an issue in the case.  He is fixed with the identification and the prosecutor is relying on it.  He says it is important.  I am putting it rhetorically - is that not enough?  The parties think that it is important.  One can see why they thought it was important or, at least, I put in argument why they thought it was important.

McHUGH J:   Well, they do not seem to have.  If you read the summing up, no objection taken.  It does not seem to have been regarded as a matter of any great importance.

MR GAME:   But why would the prosecutor say that the photograph identification was important even though the accused does not deny that he was present in the flat, unless he thought that it took the case further?

McHUGH J:   I do not know.

MR GAME:   And would not the jury, dressed with that submission, have been entitled to act on the identification, not just in getting the accused there, but getting the accused there fixed with liability for assaulting the victim?  It is not to the point really to say the case is one of joint liability and you do not have to establish what each individual did, because the Crown strengthens its case by proving more.  As I said, what really Mr Ellis has done is he has honed the case back to the minimum elements and the minimum factual ingredients.  If you fall below those you lose the case, but it does not mean that the prosecution has not gone further and tried to prove more.

HAYNE J:   Do you accept that identifying whether it is in issue in the case is something that is done after the close of evidence and addresses by the parties?

MR GAME:   Well, I would have thought that you would want to do it before counsel addressed; you would want to know before counsel addressed whether or not that was ‑ ‑ ‑

HAYNE J:   Certainly by the close of evidence.

MR GAME:   Yes, your Honour.

HAYNE J:   After the close of evidence is the point at which the issues are determined.

MR GAME:   Yes.  Now, we say that section 116 is – I am not sure whether I have made this other point sufficiently clear.  If it says Mr Ellis says an identification of one previously seen, then it must be the defence case that he is, as it were, displaced from what he has earlier seen, because in the defence case there is only three people there, and that is the point of the cross‑examination at 68 to 69, to show that there is exactly the same number of people in the house as outside of the house to fit in with the Sullivan and Patterson evidence about the three people.  So the defence case is that there are only three people, so the defence case has to be that what Mr Schembri has done is displaced his earlier identification on to actually giving an identification to the accused as having done particular things.

GLEESON CJ:   I thought that in that case of Festa there were some things said about the fact that the expression “identification evidence” might be imprecise and it can mean different things in different circumstances.

MR GAME:   Yes.  Festa is really a case about description type of evidence and, for example, the person was Italian or the person was Asian or the person was ‑ ‑ ‑

GLEESON CJ:   No, but one of the pieces of evidence in Festa was that a female of about the size and general appearance of the accused was seen in the vicinity of the crime.  The person who gave that evidence did not purport to recognise the accused or to say that person was the accused, but that was evidence that a person consistent with it having been the accused was in the vicinity of the crime.  Now, is that identification evidence, within the meaning of section 116?

McHUGH J:   “Identification evidence” refers not only to an assertion that the defendant was present but resembles visually, aurally or otherwise.

MR GAME:   Yes, and “present at or near” as well.  I am not quite sure why that is there, but, yes, your Honour, that would be identification.

McHUGH J:   It is curious that it refers to “present at or near a place”.  That is what it revolves around.

MR GAME:   Yes.  I do not understand why that is there.

McHUGH J:   No.

MR GAME:   According to our quick look – we had a look before but we had another look at the ALR recommendations.  It looks as though section 116 has actually been beefed up from the recommendation to a mandatory warning and it was previously if the party requests and a warning.  So I do not know how that has come about but looking at the provisions what I initially said seems to be correct.  Section 116 is the only section in the whole Act that is a mandatory direction like this, but we say that ‑ ‑ ‑

McHUGH J:   What about a false pretences case where the complainant says, “I had a conversation with that man there who represented such and such to me”?  Do you have to give a 116 direction when a witness says that it was “Mr Smith” or “That person”?

MR GAME:   I do not know how you quite make of these words – I have not got it in front of me – but if it is based on what he perceived or heard at the time, which is very close to the words, then that is said to be identification evidence, so the answer would be yes.

GLEESON CJ:   We often give in‑court identification as an example of suspect identification evidence but time after time people says, “Yes, that is the man” in circumstances where there is no dispute about it and the evidence is received without objection.  Now, in a case like that where a victim of a crime is giving an account of what happened and the prosecutor says, “Do you see the person who did that to you in court?” and he says, “Yes, there he is” and points to the accused in court.  There is no objection.

McHUGH J:   Sometimes to counsel.

HAYNE J:   Yes, or an instructing solicitor.

GLEESON CJ:   There is no dispute about it.  Does the judge then have to give the jury a warning about the danger of acting on that evidence?

MR GAME:   We would say no, because there is no special need and really it is the ‑ ‑ ‑

GLEESON CJ:   I am sure your answer is right, but we have to express a reason for it related to the text of the provision.

MR GAME:   Whether or not it is a satisfactory one might be another thing, but my reason is that there is no special need in that case and therefore the warning is redundant really.  You cannot cut the section ‑ ‑ ‑

GLEESON CJ:   Another way of expressing that proposition is to say that if the section made it obligatory in those cases, it would be directing the judge to mislead the jury because the information it requires the judge to give the jury is incorrect information.  There is no special need for caution.

MR GAME:   Yes.

GLEESON CJ:   That is, is it not, a reason for limiting the operation of section 116 to a case in which there is an issue?  I realise you say that is this case, but a case in which there is an issue about at least some aspect of the identification evidence.

MR GAME:   Yes, well, the difficulty with that is that it just says – they really are not very ambiguous words, “has been admitted”.

GLEESON CJ:   Well, in the example I just gave you of an undisputed in‑court identification, for the judge to inform the jury that there was a special need for caution before accepting that evidence would be absurd.

MR GAME:   No doubt, yes.  If you imagine the direction, you would say ‑ if you got to (b), you would say, “Well, I come to this case – and let me tell you, members of the jury, there are no reasons for any caution in this particular case because it is not disputed.”  So you have proven that the direction is redundant, but you do not have to read into the section “disputed”.

GLEESON CJ:   You come to (a) first.  It is (a) and (b).

MR GAME:   If you said (a) you would be misleading the jury in the example that you gave, yes, you would be.  The difficulty with the construction of “disputed” is that there really is not – in the opening words, there is no – well, I suppose you could say there is ambiguity to the extent that the circumstance where it is not disputed shows that the direction is absurd.  Therefore you can say – you can do surgery, small surgery, with the words because otherwise the language of the section is absurd in a particular given circumstance which is the ‑ ‑ ‑

HAYNE J:   You would hang it off possibly the word “accepting” or the words “in the circumstances of the case”?

MR GAME:   Yes.

HAYNE J:   Now, they may or may not be a sufficiently strong peg on which to hang it.

GLEESON CJ:   And all of this in the context of an Act that is dealing with rules for application in cases where somebody wants to invoke the rules, whereas we all know in the practical day‑to‑day conduct of a trial it is often convenient for the parties not to apply the rules.  So a barrister will sit and listen to his opponent move quickly through undisputed evidence and then he will say to him, “Please don’t lead from now on”, and the rules suddenly come into play.

MR GAME:   But, your Honour, in my submission, that has to be a weak argument, when section 116 is the only section that says, regardless of what anybody does or thinks, you have to do it in this particular instance.

HAYNE J:   That suggests that we may well be assisted, Mr Game, in the submissions that you are going to prepare, if you could trace with some care and considerable fullness what it is that led to 116 coming in.  If you can track it from ALRC right through parliamentary debates or any other relevant source. 

MR GAME:   Certainly, your Honour, but, as I said just after lunch, what appears to us to be the precursor is it seems to have been beefed up in this section for some reason that we cannot currently explain.  That is all I wanted to say about that.

GLEESON CJ:   I am sorry, just before you move from that argument, because the essence of your argument on that point, as I understand it, is that there were aspects of this identification evidence that were important and were disputed. 

MR GAME:   Yes. 

GLEESON CJ:   I do not know whether something may turn on the form of particular evidence, but suppose that in the present case it had not been photographic identification, it had been in‑court identification – just to simplify the problem – and what the victim had said in evidence was, “I met four men in a hotel and took them back to my flat”.  Question, “Do you see any of those four men in court?”  Answer, “Yes, that man there”, pointing to the accused.  Question, “What happened when you got back to your flat?”  Answer, “Various of those men did various things, and that man there grabbed me by the throat”.  Is that identification evidence, the second lot? 

MR GAME:   Yes, but the way your Honour has just put it, we would put respectfully, is the way the Crown would like the evidence to be in this case, but that is not the way the evidence was given, either by the complainant or by Mr Cipolla, because it jumped straight to two.  It jumped straight ‑ ‑ ‑

GLEESON CJ:   “That is the man who grabbed me by the throat”. 

MR GAME:   Yes, “That is the man who grabbed me by the throat”.  The way you put it, your Honour, that contains an inference – or you could readily draw an inference from the way that that account was given that the identification was based on what he had seen of him in the hotel and what he had seen of him in the car on the way home, and so forth.  That would be a natural way of interpreting that evidence, and that you would say, in that case, that “He bopped me on the nose” or whatever, that did not take the identification very much further, but it would be identification evidence strictly construing – sorry, a meaning of “identification evidence”, yes.

Now, with respect to lies, critically the question is not what the Crown chose to do but what the jury may have done.  There is no doubt at all that that evidence, in our submission, was put in on the basis that it was a false account that the appellant was addressed on the basis that they were proven lies and that they were independently established and that they were material, and that in the summing up they were clearly left as lies.  Whether or not the word “strange” was used, that is what the prosecutor was saying.  Whether or not he actually used the word “strange”, the point is how could he be saying that when he already knew?  That is to say, it is a lie.  Each of them was independently established.  Each of them appear to me to have been material and they are material because Indians, hotel, presence, each one gets you closer to the crime if you take them in that order.

GLEESON CJ:   Are you content generally with the formulation of principle in that English case, allowing for the difference between Lucas and Edwards?

MR GAME:   Yes, but No 4 is the critical one and some of the things that are included in there do not really seem to be too discursive in the sense that they do not provide you with a principle.

GLEESON CJ:   Do you see a material difference between No 4 and Zoneff?

MR GAME:   No.

CALLINAN J:   There is one aspect of that case that does not directly arise but, according to their Lordships there, the lies have to be proved beyond a reasonable doubt.

GLEESON CJ:   We got rid of that in Edwards.  Here we have ‑ ‑ ‑

MR GAME:   The judgment of Justice Brennan in Edwards suggests that in certain circumstances you would have to prove them beyond reasonable doubt.

GLEESON CJ:   This is the old Chamberlain issue.

MR GAME:   Yes.

GLEESON CJ:   When you went around for years asking for Chamberlain directions.

MR GAME:   There is an industry, I think.

CALLINAN J:   But does anybody else apart from Justice Brennan say that in Edwards?

MR GAME:   No, your Honour.

CALLINAN J:   It would not run contrary to Chamberlain, would it, or the case after Chamberlain?

GLEESON CJ:   Shepherd.

MR GAME:   Yes, but he was not tying it.  Edwards came long after Shepherd but what Justice Brennan said, as I recall, was not tied to indispensable links, it was tied to the fact that when a consciousness of guilt, however you frame it, is proved as evidence of guilt, it may be obscuring the judgment or unclear, but I do not think that he tied it to beyond reasonable doubt in circumstantial evidence cases where it is relied up as a ‑ ‑ ‑

CALLINAN J:   But even if it is not tied to a circumstantial evidence case, does it have to be proved beyond reasonable doubt?  Is it not only guilt that has to be - or the elements.  It is not an element of the offence.

MR GAME:   It is hard to see how it would be an indispensable intermediate fact.

CALLINAN J:   Or an element.  It is neither, is it?

MR GAME:   No, but if you had a witness who was a suspect witness and you had only one piece of corroboration which was lies, then it might not be a mistake in that circumstance to say that the lie had to be proven beyond a reasonable doubt.

CALLINAN J:   In any event you are not suggesting that there was a failure to prove a lie beyond reasonable doubt here and that that ‑ ‑ ‑

MR GAME:   No, your Honour, and I accept broadly the categorisation that your Honour Justice Hayne gave, but we say in the categories, if I understood them correctly, is that this is actually in category 1, it is deliberate untruth said to be important, and what has happened, it would be 2, if necessary, in your categorisation, but it actually falls in 1.

GLEESON CJ:   While there are ways of reflecting upon a person’s credit without calling him a liar, an attack on a witness’s credit commonly, perhaps usually, involves a suggestion that he is a liar and, notwithstanding the attempts of Mr Ellis to persuade us to the contrary, some of the cross‑examination here did not seem to be limited to a suggestion that he may have had a faulty recollection or have been confused.  Now, it will happen time and time again in a criminal trial where an accused gives evidence that the prosecutor has put to him in cross‑examination, and has put to the jury in address, that he is a liar and the basis of that suggestion will often be inconsistencies between what he said in his evidence and what he said to somebody else on another occasion.  In those circumstances, absent some submission or suggestion that not only is he a liar but that the lies indicate a consciousness of guilt, is it necessary or even proper to give a direction about consciousness of guilt?

MR GAME:   No, that depends very much on the circumstances, but the answer is no, as a general answer, if what you are saying is you just will not accept what he says.  If that is all you are saying and, if you can add to that, there is no risk from the nature of the evidence that the jury will infer from, he told untruths; therefore he is guilty.  So it is those two things.  If those two are satisfied, then you do not need to give a Zoneff direction.

McHUGH J:   But to take this case, I mean, reading the cross‑examination it seemed to me that almost every question that was put to the accused suggested he was lying about the whole thing.  I mean, questions were put to him about such things as, “Well, if you’re paranoid about smoking marihuana, why would you go to this place with people you did not know to smoke marihuana?”, and the suggestion was that his whole story was just a pack of lies from beginning to end.  That is the way I read the cross‑examination.

MR GAME:   Yes, but what the prosecutor was doing was getting him on oath on two inconsistent versions and getting him to swear to both of them before he said he was a liar.  Your Honour, you cannot simply relegate everything to you will not accept anything he said, because the prosecution case has been carried forwards by the account that he gave to the police and if you do not tell them it is not being carried forwards, then it is inevitable that they will reason in that way.

GLEESON CJ:   Suppose the prosecutor in this case had said – and he does seem to have said something fairly like this – “Look, this man gives you a story in the witness box after he has had time to make an appreciation of his own situation.  He knows his fingerprint is on the table.  He knows that there are witnesses to the events that happened that do not claim to have seen four people, so he says, ‘I was there but I left early’.  When he is originally spoken to by the police he pretends he cannot even remember he was there.  The man is a liar.  You should reject him.”  So far, nothing to do with Edwards or consciousness of guilt, just an attack of the usual kind on credit.

MR GAME:   But it is not an attack of the usual kind on credit because there is this something else which is brought in aid which is the false account he gave to the police at the first instance.

McHUGH J:   But that only means that there is a stronger reason for disbelieving his evidence than his story that he just suddenly walked out of this place, went up to Victoria Road and then paid $35, or something, for a cab fare home.  The cross‑examiner was obviously suggesting throughout the whole of the cross‑examination that the whole story was a pack of lies.  At least, the jury would have formed that view, I would have thought, reading the transcript.

MR GAME:   Your Honour, at the latest when the judge said – and presumably he was relaying something the Crown – “All those matters are part of the Crown case”.  It must be, whatever the Crown said, that the jury would have been left thinking that the lies that had been told carried the case forwards, in some respect.  Your Honour, those lies – I have said this before, but those lies, they are not just any old lies.  They are extremely damning lies because they are lies – “Why would you lie about going to a house unless you were guilty?” is the way a jury would think.  “Why would you lie about having Indian friends unless you were guilty?  Why would you even lie about going to the Bridge Hotel unless you were guilty?”  Now, they are not just any old ‑ ‑ ‑

McHUGH J:   You would have to give a direction in respect of almost everything.  I mean, take the question about his paranoia.  He was asked, “Why did you want to leave?” and he said, “Because I become paranoid when I am smoking marihuana”.  Then he is challenged on the basis of, “Well, why did you go with strangers to a place where you have never been to smoke marihuana if you know you are paranoid?”  Now, a jury, having heard that cross‑examination would be entitled to say, “That was just a lie.  He just lied.”  Now, has the judge got to give an Edwards direction in respect of that or a Zoneff direction?

MR GAME:   No, but your Honour, he does have to give a Zoneff direction because – not in respect of that but he has to give a Zoneff direction in respect of asserted lies and he has to put that because – not because of those lies about the paranoia but because of the lies that I have identified from the questions from Detective Napper because those lies, in the mind of any person not versed with the law about lies, they would think that they helped the case, that they made the case stronger.

McHUGH J:   They helped the case in the sense they are destructive of your client’s case.

MR GAME:   A lawyer might say that, but the sort of case where that is the situation is, for example, if an accused does a lengthy record of interview and there is an inherently implausible story in the record of interview and then another implausible story is given in evidence that varies from that.  Now, that is a case where you simply weigh up – you say, “Here are all these accounts.  You will reject them”.  That means, you take the accused’s evidence out of the – the accused’s evidence has gone, so the Crown case sits there without the accused’s evidence raising a reasonable doubt.  But that is not this case and that is really not what happened.

McHUGH J:   But you seem to be saying that there is a distinction to be drawn between an inherently incredible answer which a jury could treat as a lie and an answer which is contradicted by something that the accused has said at an earlier stage, perhaps out of court.  Now, is that the distinction you seek to make?  Because the accused’s credibility is on many issues – in this case, I would have thought just about every issue was in issue.

MR GAME:   But, your Honour, the earlier account is not being used just to show that his accounts are implausible.  That is not why it is there.  How would the jury think that?  It may be difficult to formulate an actual argument, but say you had a series – the questions are just questions that give identified lies, there is nothing else, there is nothing else in that account, and those lies are not shown to be lies by the case that establishes guilt.  They are shown to be lies by evidence that is independent of evidence establishing guilt.  So they sit up by themselves.

HAYNE J:   And that perhaps highlights what is a root problem that this whole debate that has erupted over the last 10 years about lies presents.  Directions about lies are sometimes necessary but inherently they are diverting the attention of the jury from the main game.  The main game for the jury is, “Has the Crown proved its case beyond reasonable doubt?”  Do not go off on a little side issue about, “How do I judge the accused’s credibility?” because that is starting to tip over into, “Has the accused made out a case?”  Elementary error No 1.  The giving of warnings about lies is one thing, but elevating lies, credibility and the like into a separate issue is, I would suggest, very dangerous for the criminal law.

MR GAME:   As a general proposition, I accept that but we would say – and I can see real dangers if that, as it were, encroaches into what is said to be merely inconsistent accounts, but they are not said to be merely inconsistent accounts in this case.  I have already said this before, but once you say those are matters – and this is not all that I am weighing on but all those matters are part of the Crown case ‑ you are leaving the jury to think that you can infer that he is guilty because in important respects he has lied and that the reasoning of the jury would be this:  they would say if his story about leaving the premises was true – I am sorry, let me put it another way. 

The prosecutor has outlined a series of events which is you have false account, you have knowledge of the facts before the false account, false account, further reinforcement of the knowledge of the false account with the facts sheet, police not told anything about it, Crown brief in February, knows that he is stuck with presence at the premises, gets in the witness box, does the best he can, he is a liar.  That is the heart of the prosecutor’s thrust against the case put up by the appellant.

HAYNE J:   Because from one point of view this was a single‑issue case.  Was he there? Was he not?

MR GAME:   Had he gone, is the issue.

GLEESON CJ:   Was he still there?

MR GAME:   Was he still there, yes.  What I say is that that particular line of reasoning which must be said to flow through the whole way in which the prosecutor has sought to address the defence case must leave prominently the idea in a juror’s mind that he lied through the series of events because he is guilty, and it is as simple as that.  That is all that the Zoneff direction requires.  That is all that the circumstances of this case called for.  I think that is all I wanted to say in reply.

GLEESON CJ:   Thank you, Mr Game.  We will reserve our decision in this matter and we will adjourn until 10.15am on Tuesday morning.

AT 2.37 PM THE MATTER WAS ADJOURNED