Doyle, Colin Peter v The Queen

[1998] TASSC 98

98/1998

PARTIES:  DOYLE, Colin Peter
  v
  R

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  CCA 35/1998
DELIVERED:  17 August 1998
HEARING DATE/S:  17 August 1998
JUDGMENT OF:  Cox CJ, Wright and Crawford JJ

Edited edition of reasons for judgment given orally

REPRESENTATION:

Counsel:
           Appellant:  C K Brown
           Respondent:  M P Bugg
Solicitors:
           Appellant:  Legal Aid Commission of Tasmania
           Respondent:  Director of Public Prosecutions

Judgment category classification:
Court Computer Code:  
Judgment ID Number:  98/1998
Number of pages:  3

Serial No 98/1998
File No CCA 35/1998

COLIN PETER DOYLE v THE QUEEN

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

COX CJ
WRIGHT J
CRAWFORD J
17 August 1998

Orders of the Court

1. The appeal is upheld.

1. The conviction is quashed.

1. Direct that there be a fresh trial.

1. The appellant is remanded on bail to the next sittings of the Supreme Court on 31 August 1998 at 10am.

Serial No 98/1998
File No CCA 35/1998

COLIN PETER DOYLE v THE QUEEN

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

COX CJ
WRIGHT J
CRAWFORD J
17 August 1998

Cox CJ

I invite Wright J to deliver the first judgment.

Wright J

Yes, I must say at the outset that I am not persuaded that there is any substance to grounds 1 or 2 of this appeal, but I do not need to express a concluded view about those matters. 

I turn therefore to consider ground 3 which contends that the learned trial judge was in error in failing to direct the jury as to lies which may have been told by the accused in accordance with the principles discussed in the High Court in Edwards v R (1993) 178 CLR 193. It is quite clear that at the trial the Crown sought to rely upon the lies attributed to, and in some cases, admitted by the appellant, not only to support the proposition that he was an untruthful witness, but also to support the submission that the jury should find that the lies were, of themselves, evidence of the appellant's guilt and were corroborative of the complainant's evidence. That being so, it is clear that a careful judicial direction was required. The question whether or not such a direction should be given was discussed between counsel and his Honour and all agreed, or appeared to provisionally agree, at least, that the case was one in which such a course of action was not called for in the circumstances. In my opinion, this conclusion was erroneous and, as a consequence, the appellant was deprived of a trial in accordance with the law.

Insofar as his Honour the trial judge expressed the view that a direction of the kind now in question was unnecessary as the Crown case was not wholly or substantially dependent upon circumstantial evidence, I feel obliged to observe, with all respect, that this is not a correct view of the law.  In any case in which lies told by an accused person are capable of amounting to independent evidence of guilt in the sense discussed in Edwards, a direction is, in fact, called for.  As his Honour said to the jury in summing up, the whole case was about lies.  It was alleged that the accused had told several lies during his interview with the police and during the trial and it was imperative that the jury should have been made aware of the varying degrees of significance that such lies could be given by them in considering whether or not the Crown had discharged its onus of proof in establishing the appellant's guilt.  Despite Mr Bugg's spirited argument to the contrary, I am of the opinion that this is plainly a case where the proviso cannot be applied and, consequently, in my view, the convictions and sentence must be quashed and the appellant must be retried.  I would make orders accordingly.

Cox CJ

I fully agree.  In this case there was clear evidence of a lie having been told by the appellant to the investigating police.  Prior to addresses, there was some discussion between the learned trial judge and counsel as to whether any particular direction should be given.  No decision was reached at that point and it was left on the basis that the learned trial judge would give what he thought was an appropriate direction at the conclusion of addresses.  During Crown counsel's address, the jury were urged to treat the lies as undermining the credibility of the appellant when compared with the complainant, but learned counsel went further and, by his submission to them that, "having regard to the evidence you may find that there really is no explanation as to why he would tell these untruths, other than to cover something up, that is, the assaults that were committed", he clearly invited them to treat the evidence of the lie as going beyond a mere measuring stick of the appellant's credibility as a witness, but amounting to proof in itself of his guilt of the offences with which he was charged.

In these circumstances, I think it was incumbent upon the learned trial judge to give directions as to the use the jury could make of the admitted fact that the appellant had told lies to the police.  Whether, in the circumstances, the lie was one capable of being probative of guilt or fell short of having that status, it is, strictly speaking, unnecessary to decide, although I am inclined to the view that it did have that potential.  The jury required direction one way or the other: unfortunately no direction was given and the possibility that the jury, unaided by an appropriate direction, made improper use of the fact of the lie, cannot be discounted.  I would uphold the appeal on ground 3.  That being the case, it is unnecessary to determine grounds 1 and 2.  None of the grounds advanced is capable of leading to the substitution of a verdict of acquittal.  I would accordingly quash the conviction and order a new trial.

Crawford J

I agree.