Evans v The State of Western Australia
[2020] WASCA 26
•4 MARCH 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: EVANS -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 26
CORAM: BUSS P
MITCHELL JA
BEECH JA
HEARD: 6 DECEMBER 2019
DELIVERED : 4 MARCH 2020
FILE NO/S: CACR 95 of 2019
CACR 96 of 2019
BETWEEN: DARREN LEX EVANS
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: BURROWS DCJ
File Number : IND 852 of 2017
Catchwords:
Criminal law - Appeal against conviction - Where appellant convicted of a series of property offences - Where prosecution relied on lies allegedly told by the appellant in the course of his evidence as evidence supporting the prosecution case - Whether directions about lies related to various offences in a multi-count indictment adequately indicated the limits of permissible use of evidence of lies - Whether absence of an adequate direction gave rise to a miscarriage of justice.
Legislation:
Criminal Code (WA), s 378, s 409(1)(e), s 414, s 563A
Result:
Appeal against conviction allowed
Conviction set aside and a new trial ordered
Leave to appeal against sentence refused
Category: A
Representation:
Counsel:
| Appellant | : | S B Watters & G C R Yin |
| Respondent | : | L M Fox & G N Beggs |
Solicitors:
| Appellant | : | DG Price & Co |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Axford v The Queen (Unreported; WASC, Library No 980200; 20 April 1998)
Banks v The Queen [2003] WASCA 198
Birdsall v The State of Western Australia [2019] WASCA 79; (2019) 54 WAR 418
Broadhurst v The Queen [1964] AC 441
Clarke v The State of Western Australia [2018] WASCA 14
Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1
Edwards v The Queen (1993) 178 CLR 193
Koch v The Queen [2011] VSCA 435
La Bianca v The State of Western Australia [2019] WASCA 105
Martinez v The State of Western Australia [2007] WASCA 143; (2007) 172 A Crim R 389
Meko v The Queen [2004] WASCA 159; (2004) 146 A Crim R 131
Pennington v The State of Western Australia [2013] WASCA 98
R v Baden‑Clay [2016] HCA 35; (2016) 258 CLR 308
R v Ciantar [2006] VSCA 263; (2006) 16 VR 26
R v Constantinou [2009] VSCA 257
R v Heyde (1990) 20 NSWLR 234
R v Laz [1998] 1 VR 453
R v Reid [2018] QCA 63; [2019] 1 Qd R 63
R v Renzella [1997] 2 VR 88
R v Sutton (1986) 5 NSWLR 697
R v Woolley (1989) 42 A Crim R 418
Shepherd v The Queen (1990) 170 CLR 573
Tripodi v The Queen (1961) 104 CLR 1
Zoneff v The Queen [2000] HCA 28; (2000) 200 CLR 234
JUDGMENT OF THE COURT:
Summary
The appellant was convicted after trial on all counts in a 69 count indictment that charged him with:
(1) One count of stealing, contrary to s 378 of the Criminal Code (WA) (Code).
(2) Three counts of fraud, contrary to s 409(1)(e) of the Code.
(3) 45 counts of receiving property which the appellant knew to be stolen, contrary to s 414 of the Code.
(4) 20 counts of property laundering, contrary to s 563A(1) of the Code.
The charges in the main related to what the State alleged was the appellant's business of receiving stolen trailers and dollies, 'rebirthing' them and then selling the stolen items. The offences were alleged to have been committed over a four year period from 2010 to 2014, and to involve property valued at about $3.4 million.
The appellant was sentenced to a total effective sentence of 9 years' imprisonment in respect of these offences.
The appellant now appeals against both his convictions and sentences.
Ground 1 of the conviction appeal contends that the trial judge erred in law in directing that the jury could take into account lies allegedly told by the appellant as evidence of consciousness of guilt, or alternatively that the directions gave rise to a miscarriage of justice. Ground 2 in effect contends that a miscarriage of justice arose as a result of a factual error made by the trial judge in summing up, concerning evidence of the appellant which the prosecution contended was a lie evidencing guilt. Leave to appeal has been granted on ground 1. The application for leave to appeal on ground 2 was referred to the hearing of the appeal.
The sole ground of appeal in the sentence appeal contends that the total effective sentence of 9 years' imprisonment infringes the first limb of the totality principle. The application for leave to appeal on the sentence appeal was referred to the hearing of the appeal.
For the following reasons, in the present case it was open to the jury to use the lies, if established, for the limited purpose of supporting an inference that the appellant knew that the property the subject of the receiving and property laundering counts was stolen. However, on the direction that was given, there was a reasonable possibility that the jury would have used the appellant's lies in an impermissible manner to support the prosecution case as to all of the elements of all of the offences with which the appellant was charged. A direction which clearly indicated the limits of the permissible use of evidence of lies in the particular circumstances of this case was required to avoid the perceptible risk of a miscarriage of justice. The absence of an adequate direction gives rise to a miscarriage of justice in the particular circumstances of this case. Ground 1 is established so far as it contends that the trial judge's direction did not adequately explain to the jury the manner in which they could and could not use the appellant's lies to support the prosecution case. Ground 1 is also established so far as it contends that the lies were not capable of being regarded as evidencing the appellant's guilt of the stealing and fraud offences.
Therefore, the conviction appeal should be allowed. The convictions must be set aside and a new trial ordered. The convictions having been set aside, it is unnecessary and inappropriate for this court to deal with the appeal against sentence.
We note that, on 20 January 2020, the appellant was granted bail pending determination of the appeal.
Circumstances of alleged offending
To put the grounds of appeal in some context, it is convenient to begin with a summary of the offending alleged by the State. The following overview of the circumstances is taken from the State's written sentencing submissions in the primary proceedings.[1] This summary was accepted to be accurate by the appellant at sentencing,[2] and was adopted by the trial judge in her Honour's sentencing remarks.[3] The summary indicates the circumstances of the offending as found by the trial judge, of which the jury must have been satisfied in order to find the appellant guilty.
Receiving
[1] State's Outline of Sentencing Submissions, par 6 - 29 (Blue/Green AB 92 - 95).
[2] Trial ts 4363.
[3] Trial ts 4377 - 4380.
The appellant received 41 semi‑trailers and dollies which had been stolen whilst unattended at various locations throughout the State, including from road train assembly areas at Upper Swan, Northam and Wubin and from roadside parking bays at Bellevue, Newman and Welshpool.
The trailers and dollies were stolen by connecting them to a prime mover, taking them from where they were parked and driving them to the appellant's farming property near York. There they were received by the appellant and stored on his property with the intention of 'rebirthing' them. A number of stolen semi‑trailers, a Hino truck (not the subject of a count on the indictment) and other items the appellant received were put to use by him in and around his farming property.
The evidence indicated that one of the appellant's prime movers may have been used by one of his employees to steal a number of the semi‑trailers.
The appellant received four shipping containers and their contents which were being transported on the stolen semi‑trailers (counts 30 and 33).
The appellant received a large cargo of industrial freight, including defence, mining and railway equipment (count 39) which was being transported on one of the semi‑trailers which was stolen.
The appellant received 108 bales of wool which were being transported on one of the semi‑trailers which was stolen (count 69).
Property laundering
The appellant made 2 two applications to register as a vehicle builder. The basis of the applications was that the appellant was to build trailers from the ground up whereas, in reality, the appellant merely rebirthed the stolen trailers and dollies he had received.
Once registered as a vehicle builder, the appellant had ready access to a flow of Evans Bros vehicle identifications numbers (VINs) and compliance plates to attach to the rebirthed stolen vehicles.
The appellant set about rebirthing the stolen semi‑trailers by removing original VINs, registration plates and compliance plates; removing other distinctive and unusual features; repainting the semi‑trailers and dollies in a distinctive purple colour; and adding the newly issued Evans Bros compliance plates and VINs to the vehicles.
The appellant then advertised the rebirthed stolen vehicles for sale in a variety of newspapers. He gave prospective purchasers false history with respect to the origins of the rebirthed trailers to encourage their purchase.
The appellant engaged directly in 20 such transactions with 13 separate victims. The appellant was paid a total of $714,200 for the rebirthed trailers and dollies sold to the victims.
The police eventually traced the rebirthed stolen trailers which had been sold by the appellant and seized from the victims. The victims suffered heavy financial losses.
Stealing
As to count 2, the appellant leased a semi‑trailer from Truckworld Rentals. Within the period of the lease term, the appellant falsely reported that the trailer had been stolen and retained possession of it. The appellant used the trailer for his own purposes. The trailer was valued at $85,000. The appellant rebirthed the stolen semi‑trailer and had it re‑registered as Y15396.
Fraud
As to count 60, the appellant falsely reported to the police that the vehicle referred to above (Y15396) was owned by him and had been stolen. In reality, the appellant simply retained possession of the vehicle, which was found at the appellant's property on the date of the police raid.
The appellant made a claim in respect of the 'stolen' vehicles to his insurer, Elders Insurance, and received a payment from Elders of $58,556.18.
As to count 49, the appellant falsely reported to the police and then to his insurer, National Transport Insurance (NTI), that two of his semi‑trailers had been stolen.
The appellant made a claim in respect of the 'stolen' vehicle to his insurer and received a payment from NTI of $87,920.
As to count 5, the appellant supplied false information to the Department of Transport's licensing services agent in the Shire of York in respect of one of the stolen trailers which had been received by him. As a result of being supplied with the false information, the Department's agent issued the vehicle in question with a new registration, Y15446.
Value
The total value of the stolen trailers received by the appellant was in the order of $2,352,000.
The total value of goods in transit received by the appellant was $210,000.[4]
[4] $100,000 (count 39); $20,000 (count 30); $20,000 (count 33) and $70,000 (count 69).
The total value of the monies obtained from the buyers of the stolen vehicles was in the order of $714,200.
The total value of the monies received from insurance companies in respect of fraudulent claims was $146,476.18.
The total value of the entirety of the offending was in the order of $3,422,676.
Parties' cases at trial
It is sufficient for present purposes to give a very broad summary of the parties' cases at trial.
The evidence adduced by the State in the prosecution case was generally directed towards establishing the following matters:
(1)That various items of property alleged to have been stolen had in fact been stolen.
(2)That the same items of property alleged to have been stolen were found in the appellant's possession.
(3)That the appellant stole certain items of property.
(4)That the appellant sold certain items of stolen property.
(5)That the appellant made fraudulent insurance claims and fraudulently obtained a registration plate.
Much of the defence effort was directed to challenging the proposition that the State had proven, beyond reasonable doubt, that the trailers and dollies found on the appellant's property, or sold by him, were the same equipment as that stolen from various persons.
However, the appellant also gave evidence to the general effect that he was engaged in the legitimate business of purchasing damaged trailers, repairing or rebuilding them and selling them. He gave evidence that he had purchased a number of the damaged trailers from a Jeff Bernsten, who worked on the appellant's property. The appellant said that if the trailers purchased from Mr Bernsten were stolen, he did not know this. It was also part of the defence case that Mr Bernsten and another person were responsible for the presence of stolen trailers and other items found by police at the appellant's property, without the appellant's knowledge.
In this context, a contentious factual issue at trial was whether the appellant was engaged in a legitimate business of purchasing, restoring and selling trailers and dollies.
Conviction appeal ground 1: 'Edwards' lies directions
Ground 1 in the conviction appeal contends that:
The learned trial Judge erred in law in directing the jury that they could take into account lies that were alleged to have been told by the appellant, and in directing them about how they could take those lies into account, as evidence of consciousness of guilt, or such directions occasioned a miscarriage of justice.
Evidence to which ground 1 relates
The alleged lies which are the subject of this ground concern the appellant's evidence at trial about a number of cheque stubs and payments to Pickles Auctions. The relevant documents were not tendered as part of the State's case, but were introduced as part of the appellant's evidence either in examination-in-chief or cross-examination.
Cheque stubs showing payments for purchase of trailers and dollies
Four cheque stubs were referred to by the appellant in his evidence in chief, as evidencing money which he had paid to Mr Bernsten for trailers. The cheque stubs were made out to 'Jeff steel'. The appellant's evidence was that he used 'steel' as a reference on cheque stubs when purchasing trailers so that he could claim the purchase price as a tax deduction for materials, and avoid paying capital gains tax when he sold the trailers.[5] The appellant also referred to a cheque stub indicating a payment of $12,000 to a Mr Richies in 2010 for two trailers and dollies.[6]
[5] See the appellant's evidence in chief at 3533-3534 (cheque 308), 3589 (cheque 319), 3597 (cheque 332) and 3593 (cheque 351).
[6] Trial ts 3213.
The purpose of adducing this evidence was evidently to show that the appellant had paid Mr Bernsten and Mr Richies for what were contended to be damaged trailers as part of his legitimate business.
In cross-examination, it was put to the appellant that bank statements showed the amounts paid on those cheques to be significantly less than those shown on the cheque stubs. The discrepancies between the cheque stubs and bank statements were as follows:
Cheque No
Date of cheque
Notation on cheque stub
Amount shown on cheque stub
Amount shown on bank statement
Date of withdrawal
308
21/3/14
Jeff steel
$15,000
$1,500
22/3/14
319
10/4/14
Jeff steel
$5,000
$500
11/4/14
332
29/4/14
Jeff steel
$11,010
$1,010
1/5/14
351
23/4/14
Jeff steel
$7,200
$1,200
24/5/14
612
28/9/10
Allan Richies
$12,000
$88.50
4/10/10
The prosecutor put to the appellant that the cheque stubs had been forged, and that he had presented false evidence to the jury to get himself 'off the hook'. The appellant denied that this was the case.[7]
[7] Trial ts 3746 - 3747 (cheque 308), 3748 (cheque 319), 3749 - 3750 (cheque 332), 3750 (cheque 351), 3798 - 3799 (cheque 612).
The appellant did not generally relate the purchases of trailers or dollies said to be evidenced by the cheque stubs to the trailers or dollies which were the subject of particular counts on the indictment. The exception was cheque 332, which the appellant indicated related to trailers 'we're about to do'.[8] This was a reference to the trailers and a dolly which were the subject of the receiving counts 18 - 21 and the property laundering count 22. This equipment was owned by Boart Longyear and had been stolen between 8 and 10 February 2014.
Trailer purchase from Pickles Auctions in April and September 2012
[8] Trial ts 3597.
The appellant gave evidence that a $10,000 withdrawal on 9 September 2012, shown on a bank statement, was for a trailer. He also referred to payments of $4,000, $3,000 and $10,000 made on 12 September 2012 for a Toyota Prado. The bank statement was not tendered.[9]
[9] Trial ts 3256 - 3257.
Later, the appellant gave evidence about an entry on 5 April 2012 with a 'Pickles' reference 50455 in the amount of $10,000. He said that was for a water damaged Prado out of a salvage auction. This part of the bank statement was not tendered. The appellant then gave evidence that a further entry on 10 April 2012, in the amount of $10,000, was for two trailers and parts.[10] That page of the statement later became exhibit 71.2.[11]
[10] Trial ts 3279.
[11] Trial ts 3796.
In cross-examination, the appellant was taken to the $10,000 payment on 10 April 2012, and said that was for a trailer.[12] The appellant was then shown an invoice from Pickles Auctions showing payments totalling $39,833 being made by direct debit for a Toyota Prado. Two $10,000 instalments were shown as being paid on 10 April 2012.[13] The prosecutor said:[14]
Nothing to do with trailers, do you agree?---It says a Prado, correct.
Nothing to do with trailers?---Not on this one, no.
Toyota RAV4 purchase in February 2012
[12] Trial ts 3795 - 3796.
[13] Exhibit 71.1 (Blue/Green AB 83).
[14] Trial ts 3796.
In his evidence in chief,[15] the appellant was shown entries in a bank statement showing debits of $2,000 and $9,705 on 13 February 2012, and $8,000 on 14 February 2012. The bank statement refers to payments to Pickles Auctions and a RAV4.[16] When asked what he purchased, the appellant responded:[17]
I purchased a hail damaged RAV4. A wrecked, damage trailer at the same auction, salvage auction, which is the same auction as the RAV4s. And then they had also a dolly, and the dolly was very - very poor.
[15] Trial ts 3277 - 3278.
[16] Exhibit 70.1 (Blue/Green AB 81 - 82).
[17] Trial ts 3278.
In cross-examination, the prosecutor put the bank statement to the appellant, and confirmed that the appellant's evidence was that the payment was for a trailer and a damaged RAV4.[18]
[18] Trial ts 3757.
The appellant was then shown a tax invoice from Pickles Auctions showing three direct debits of $9,705, $8,000 and $2,000 in respect of a Toyota RAV4 sold for $18,000 as a repairable write off. The total paid, which included certain fees, was $19,705.[19] The cross-examination continued:[20]
[19] Exhibit 70 (Blue/Green AB 80).
[20] Trial ts 3758 - 3759.
No mention of the trailer there?---Well, there was.
Well, you said $2,000 - - -?---Another - another - - -
- - - was for the trailer, didn't you?---Eh?
You said the $2,000 was for the trailer?---Correct.
Well, it’s not correct, is it? Because that was a deposit on the RAV. We can see it at the bottom of the invoice there?---I bought other - other equipment at that auction.
This is a receipt for the RAV, do you agree?---Yeah, it's a - a receipt for a RAV4, yes.
And we can see at the bottom there, the breakdown, 9,705. We've been to that already, the payment. 8,000, another payment. And the first of those payments, a deposit of $2,000, all for the RAV?---Well, I didn't pay that much for the RAV4, so - - -
So this is another document that's different from your recollection of things?---Correct. Yeah, it is, actually.
You say that's not how much you paid for it?---No, it was - no.
Let’s have a look at the very top line then, shall we?---Yep.
18,000?---Yep.
Just follow it down. There’s nothing else there, is there?---No, there isn't.
Just the RAV4?---No.
Just the RAV4 and nothing else?---No, there should be more there, so - -
The appellant later indicated that the trailer which he purchased from Pickles Auctions in 2012 was the trailer that was the subject of indictment counts 10 (receiving) and 11 (property laundering).[21]
State's submissions as to appellant's lies
[21] Trial ts 3410 - 3411.
In his closing address, the prosecutor made submissions about the appellant's alleged lies in the course of his evidence.[22] Much of the submission was directed to establishing the lies and their impact on the appellant's credibility. The prosecutor also contended:[23]
[22] Trial ts 3897 - 3901.
[23] Trial ts 3898 - 3899.
And all of this - the fabrication of documentary evidence, members of the jury, I suggest was to support the [appellant's] lies to you about how much he was spending, to acquire the trailers which he then went on to sell.
It's common knowledge is it not, that people who sell stolen goods don't expect to get the market value for them. You may think that paying someone like Jeff, a very much reduced price for an expensive trailer, is a very clear indication that those goods are stolen.
When the [appellant] tells you he paid Jeff $11,000 for a trailer, but it was actually only an amount of $1,000, you have - in addition to that indicator that the goods were stolen, a lie from the [appellant] about how much he paid to Jeff for the trailer.
And that lie I suggest, is a window into the [appellant's] mind when you come to consider that important element - whether he knew when he received the stolen goods, that they were in fact stolen.
You'll remember that knowledge of the goods being stolen is one of those essential elements that I referred to at the start of the trial, when considering not only the offence of receiving stolen goods, but also the other batch of charges on the indictment, which have been loosely referred to as 'property laundering offences'.
The charges of engaging in a transaction of sale, with respect to the stolen property. And I said at the start of the trial, when it comes to determining what goes on in a person's mind, you can't open it up and have a look. But you can, by looking at all the surrounding circumstances, nonetheless determine what is going on in someone's mind. What their state of knowledge is at a particular point in time.
The fact that the [appellant] is prepared to fabricate evidence on that very important subject, of the cost of to him of the stolen trailers is - I suggest - very powerful and compelling evidence, which works against him. (emphasis added)
Trial judge's directions as to lies
Lies going to credit
The trial judge began her direction about lies in the following terms:[24]
Now, a lie is a deliberate false statement. In this case lies fall into two categories and I'll deal with the first category first, and they are the ones which the State says go to the credit of [the appellant], whether you can - how you take them into account if you accept they are lies. You can utilise them when assessing [the appellant's] credit as to what he has told you in this trial.
[24] Trial ts 4227.
The trial judge then referred to a number of alleged lies which the State contended went to the appellant's credit.[25] After doing so, the trial judge said:[26]
So in relation to those matters, the fact - if you accept that any of those matters were licensed entirely a matter a matter for you. It may be a factor in the assessment of the credibility of the person. It is a matter for you to consider. You'll make up your own mind about whether [the appellant] was telling lies and if so, whether he was doing so deliberately.
It is for you to decide what significance those suggested lies have in relation to the issues in the case against [the appellant]. However, don't follow a process of reasoning to the effect that just because a person is shown to have told a lie about something, that that is evidence of guilt. The fact that a person told a lie is not evidence that the person is guilty of a crime. The telling of lies by an accused, if you so find he was telling lies, does not constitute and must not be used by you as an admission to the offending or any element of it. So that's very important.
Lies about cheque stubs
[25] Trial ts 4227 - 4230.
[26] Trial ts 4230.
The trial judge then began her direction as to lies about the cheque stubs, which the State contended evidenced guilt, as follows:[27]
All right. So that's the first category of lies that I've referred to. And as I've said, the usual way which you can use lies is in the assessment of credibility. But in this case, there are certain lies alleged to have been told by the State, that [the appellant] told that were a different type. And the State says that he told these lies because he knew that the truth would implicate him in the commission of the offences. And that is the evidence that [the appellant] gave in respect of the series of five cheque stubs.
The State's position is that [the appellant] falsified the cheque stubs and then - these are the Jeff Steel cheque stubs and I'll go through them in detail. That [the appellant] falsified the cheque stubs and then gave false evidence in respect of the amounts relating to the stub were for.
[27] Trial ts 4230.
The trial judge then proceeded to summarise, in some detail, the evidence about the cheque stubs and the parties' position in relation to that evidence.[28] In the course of summarising the parties' submissions, the trial judge made the following observations:[29]
The State submits to you that the fabrication of the documentary evidence, the cheque butts, you should find it to have been fabricated and it was to support [the appellant's] lies about how much he was spending to acquire the trailers which he then went on to sell. And if you find he did lie in that way, then you could use those lies in considering the issue of [the appellant's] knowledge about receiving the stolen goods, whether he knew he received the stolen goods and if you find they were stolen that they were in fact stolen. All right?
So that's in relation to the five cheque butts and the State contends in relation to each of those lies that they submit are lies to you they are evidence of [the appellant's] guilt of the offence with which he is charged in the sense that he told the lie because he knew the truth would implicate him in the commission of the offences. (emphasis added)
Trailer purchase from Pickles Auctions
[28] Trial ts 4230 - 4235.
[29] Trial ts 4235.
The trial judge summarised the State's position as to the alleged lie about the purchase of a trailer from Pickles Auctions in the following terms:[30]
[30] Trial ts 4235 - 4236.
Now, there are two further lies that the State rely upon to demonstrate consciousness of guilt in this case as opposed to lies which go solely to credit and they are in relation to the evidence [the appellant] gave in respect of the purchase of a trailer at 3257. And this was for $10,000 on 9 September.
The 10,000 on the 9th was for a trailer?---Yep, and then on the 12th because we only had $10,000, there's a $10,000 transfer limit, so there was 4,000 for the Prado, another 3,000 for the Prado.
And then the other one was for the Prado as far as he can remember and the 10,000 was for the trailer. So this of course relates to the Pickles invoice for the purchase of the Prado. He was cross-examined in relation to that and that invoice which you have seen is the one that is for the purchase of the Prado made to Pru, [the appellant's] then business partner, and it only makes reference to the Prado and makes no reference to a trailer. All right?
So they say, the State says, that that is an independently verifiable lie. The defence position in respect of that is that the invoice is incorrect and it was in fact for the purchase of the Prado and a trailer but the trailer is not referenced in that invoice. And in any event there's a submission to you that the Prado wouldn't have been of such a value as is reflected in that invoice. But you will remember what I told you about earlier, that you shouldn't speculate about the value of Prados or RAV4s, there is no such evidence of the value of those vehicles before you.
So that's the sixth lie that the State rely upon.
Toyota RAV4 purchase
The trial judge summarised the State's position as to the alleged lie about the purchase of a trailer and RAV4 from Pickles Auctions in the following terms:[31]
[31] Trial ts 4236.
And the seventh [alleged lie] relates to the RAV4 and the RAV4 invoice and the same position in respect of that. The invoice for the RAV4 only refers to the purchase of a RAV4 and not for the purchase of anything apart from the RAV4. And if you refer to page 3757 [the appellant], before being presented with the invoice for the Toyota RAV4, was asked this:
The purchase made by you at Pickles in Tullamarine -
- this is at 3757 -
- was for how much in total?---8,000 plus 9,700 plus 2,000.
And what was that for, just so we're in no doubt?---For a trailer and the RAV4.
And then he was presented with the RAV4 invoice which had no reference. That's the Pickles Auction tax invoice for the purchase of the Toyota RAV4 which is exhibit 70 for $19,705. And that invoice makes no reference to a trailer and the State say that that was a lie when [the appellant] was giving evidence. And the relevant exhibit is 70.1 for the bank account reference of DL Evans and PT Jenkins.
So in relation to those seven matters they are lies that the State submits to you fall within a different category. And again the defence submission is that there was no - there was the purchase of a trailer in there and it just doesn't reflect in the invoice what was in fact purchased and that you wouldn't buy a RAV4 valued at that price second-hand, it was damaged goods.
Direction about lies evidencing guilt
The trial judge then gave the following directions about the seven lies alleged by the State to evidence the appellant's guilt:[32]
[32] Trial ts 4236 - 4239.
Now, there's some important directions I must give you about these alleged lies. Not every lie told by an accused person is evidence of his guilt. [The appellant] should not be convicted merely because he has told a lie if you find that these are lies. It is a matter of common experience that there may be many reasons for telling a lie. Most people have told lies at some time out of embarrassment or to protect someone's feelings.
A lie may also be told out of panic to bolster up a just cause or to escape an unjust accusation, to protect some other person or for matters unrelated to the offence as to - such as to hide things from friends or family. For anyone or more of the statements that I have identified to be capable of supporting the State's case against [the appellant] on the charge on the indictment you must be satisfied of the following four things.
Firstly that the statement made by [the appellant] was a lie, that it was a deliberate untruth, an untruthful statement which he made knowing it was untruthful. To be capable of supporting the State case you must be clear about what a lie is. A lie is to say something untrue knowing at the time of making the statement that it is untrue. If a person says something which is untrue but does not realise at the time that it's untrue, then it's not a lie. The person is simply mistaken or perhaps confused.
Even if the person later comes to realise that what he said was incorrect that doesn't transform the statement into a lie. To be a lie the person must say something that the person knows at the time of making the statement is untrue. Saying something that is not true by mistake or inadvertence can never be evidence of guilt. [The appellant] may have been confused or there may be other reasons which would prevent you from finding that he has deliberately told an untruth.
You heard [the appellant's] explanations in the responses that he gave to [his trial counsel]. He doesn't accept, and he didn't accept in cross‑examination, that he fabricated or falsified the cheque butts and gave false evidence about them, that is, that he deliberately made untrue statements. It follows that before you could make use of the statements as evidence of [the appellant's] guilt for the charged offences you would need to be satisfied in making those seven statements that [the appellant] did lie and he did so deliberately.
So the first thing you need to be satisfied of is that in making the relevant statement you must consider it separately in relation to each of the seven statements. Did he tell a lie?
Second thing you must be satisfied of is that the lie, and each lie consider them separately, is related to a material issue. That is that the lie related to a circumstance or even connected with the charged offence. Because the telling of it must be explicable only on the basis that the truth would implicate [the appellant] in the offence for which he's charged. You can only use a lie against [the appellant] if you are satisfied, having regard to the circumstances and events, that it reveals knowledge of the charged offence or some aspect of the charged offence.
Third, you must be satisfied that [the appellant] told the lie because he realised that the truth of the matter about which he lied would implicate him in the commission of the charged offence. That is, implicated him in the receiving of the stolen trailers and dollies.
You must be satisfied that [the appellant's] motive for telling the lie was a realisation of guilt for the offence for which he is charged and a fear of the truth. You cannot use the lie as evidence against [the appellant] if you accept an explanation for the lie that is consistent with innocence.
Fourth, you must be satisfied by evidence that it was a lie, either because the accused has admitted that he lied or by other evidence that what the accused said was a lie. And in this case the other evidence is the bank statements and the invoices.
It is only if you are satisfied of these four things that you may use the lie, told by [the appellant], and as I say, you must consider each of them separately, which supports the State case against [the appellant] on the charged offences of receiving and property laundering in this case.
The lie will not be evidence against [the appellant] unless the lie was told out of a consciousness of guilt, that is that he knew the lie would implicate him in the offence and the lie reveals knowledge of the offence charged or some aspect of it.
It is only if you are satisfied of those matters that you may use any of those lies told by [the appellant] to support the State case. When I say that you can take it into account in that way I'm not suggesting that it could prove its guilt on its own.
What I mean is that it can be considered along with all the other facts that the State relies upon and which you find established on the evidence in considering whether the State has proved its case beyond a reasonable doubt. So you can't say I found he lied therefore he's guilty. You can't use that on its own. You've got to consider all of the other evidence in respect of the count that you are considering.
If you are not satisfied of any of those matters which I have identified but are satisfied that there was a lie told by [the appellant] then you can consider the lie in the way I first described to you, namely, that it goes to his credibility. So if you're not satisfied that it goes to consciousness of guilt, you can use it in the way that I've talked to you about credibility and those other lies that I referred you to. (emphasis added)
Counsel's response to directions
The trial judge sent the jury out for their lunch break after concluding her directions about lies. When her Honour asked counsel whether there was anything arising from her directions at that stage, the prosecutor and the appellant's trial counsel relevantly indicated that there was nothing.[33] Counsel did not raise any issue about lies when asked if there were any issues of law or fact arising from the trial judge's directions at the conclusion of those directions.[34]
Appellant's submissions on appeal
[33] Trial ts 4239 - 4340.
[34] Trial ts 4305.
The appellant's oral and written submissions indicate that the following three essential points are sought to be raised by ground 1 of the conviction appeal:
(1)The appellant's lies were only capable of going to an assessment of the credibility of his evidence, they were not capable of being regarded as evidencing his guilt of the charged offences.
(2)The trial judge's direction did not adequately explain to the jury the manner in which they could and could not use the appellant's lies to support the prosecution case.
(3)The trial was procedurally unfair as the proposition that the appellant lied out of consciousness of guilt was not put to him in cross-examination.
While the third point was initially advanced in relation to all lies, in oral submissions the appellant's appeal counsel confined the procedural fairness argument to the lies concerning the Pickles Auction invoices.[35] Counsel's concession that the third point had no merit in relation to the lies about the cheque stubs was correctly made. The prosecutor squarely put to the appellant that he presented false evidence about the cheque stubs to get himself 'off the hook', which clearly indicated that the State contended that he was lying out of a consciousness of guilt.
Use of an accused's lies: general principles
[35] Appeal ts 6 - 7.
In general terms a lie told by an accused person can, depending on the circumstances, be used in the following ways.
Lies impacting on the credit of the accused
It is trite that a lie by an accused, particularly a lie told in the course of giving evidence, can be taken into account by a jury in assessing the credibility of the accused's evidence. The fact that an accused has lied on oath may lead a jury to reject the accused's evidence related to the lie and treat other evidence given by the accused with caution. A lie told out of court, for example in a recorded interview with police, may also affect the jury's assessment of the credibility of other statements made by the accused either in or out of court.
While a lie which merely affects the credit of the accused may lead a jury to reject an accused's statement, it will not positively support the prosecution case. Once the accused's evidence is rejected, it remains necessary for the jury to consider whether the prosecution has established the accused's guilt by evidence which the jury does accept.
Implied admission
A second category of lie is where evidence which suggests a consciousness of guilt is admissible as an implied admission against interest. This kind of lie was considered by the High Court in Edwards v The Queen.[36] In that case, Deane, Dawson and Gaudron JJ observed that:[37]
Ordinarily, the telling of a lie will merely affect the credit of the witness who tells it. A lie told by an accused may go further and, in limited circumstances, amount to conduct which is inconsistent with innocence, and amount therefore to an implied admission of guilt. In this way the telling of a lie may constitute evidence. (emphasis added)
[36] Edwards v The Queen (1993) 178 CLR 193.
[37] Edwards (208).
The plurality said that the principle applied to lies allegedly told in or out of court,[38] and continued:[39]
It is only if the accused is telling a lie because he perceives that the truth is inconsistent with his innocence that the telling of the lie may constitute evidence against him. In other words, in telling the lie the accused must be acting as if he were guilty. It must be a lie which an innocent person would not tell. (emphasis added)
[38] Edwards (208 - 209).
[39] Edwards (209).
The plurality indicated that was why the lie must be told deliberately, as an inadvertent untruth cannot be indicative of guilt. Their Honours went on to explain the requirement that the lie relate to a material issue in the following terms:[40]
And the lie must relate to a material issue because the telling of it must be explicable only on the basis that the truth would implicate the accused in the offence with which he is charged. It must be for that reason that he tells the lie. To say that the lie must spring from a realization or consciousness of guilt is really another way of saying the same thing. It is to say that the accused must be lying because he is conscious that 'if he tells the truth, the truth will convict him'. (emphasis added, citation omitted)
[40] Edwards (209).
The plurality went on to explain the difficulties with a bare direction that 'consciousness of guilt is required', observing:[41]
A lie can constitute an admission against interest only if it is concerned with some circumstance or event connected with the offence (i.e. it relates to a material issue) and if it was told by the accused in circumstances in which the explanation for the lie is that he knew that the truth would implicate him in the offence. Thus, in any case where a lie is relied upon to prove guilt, the lie should be precisely identified, as should the circumstances and events that are said to indicate that it constitutes an admission against interest. And the jury should be instructed that they may take the lie into account only if they are satisfied, having regard to those circumstances and events, that it reveals a knowledge of the offence or some aspect of it and that it was told because the accused knew that the truth of the matter about which he lied would implicate him in the offence, or … because of 'a realization of guilt and a fear of the truth'. (emphasis added) (citations omitted)
[41] Edwards (210 ‑ 211).
The use of a lie in this manner involves the drawing of an inference that the accused committed the charged offence from post-offence conduct. The inference that the accused committed the charged offence is drawn from the telling of a lie which would not be told unless the accused was guilty of the charged offence. The telling of the lie is therefore circumstantial evidence of the accused's guilt of the charged offence. The telling of the lie may be used, together with such other evidence which the jury accepts, to satisfy the jury, beyond reasonable doubt, that the accused committed the charged offence.[42]
[42] Edwards (210).
Unless the lie is the only evidence against the accused or is an indispensable link in the chain of reasoning on which proof of guilt depends, it is not necessary for the jury to be satisfied beyond reasonable doubt that the lie itself establishes guilt.[43] That reflects the ordinary way in which circumstantial evidence is to be used in a criminal trial.[44]
Material lies and multi-count indictments
[43] Edwards (210).
[44] Shepherd v The Queen (1990) 170 CLR 573, 579.
The passages of Edwards quoted above refer to the truth implicating the accused 'in the offence with which he is charged', and implicating him in 'the offence'. Reference was made to a singular 'offence' in a context where Edwards was charged with a single count of gross indecency involving an incident with other prisoners in a prison van on a single occasion. The plurality held that Edwards' alleged lie, given in the course of his evidence at trial, as to what he saw in the prison van was not capable of being used as independent evidence of his guilt or as evidence corroborating the account given by the complainant. This was in part because the innocent explanation for the lie - that the appellant did not want to inculpate others in custody with him - was so plausible that the lie could not have been probative of guilt. It was in part because the lie went only to matters not capable of revealing anything of the events constituting or bearing on the offence.[45]
[45] Edwards (212 - 213).
The effect of the plurality's conclusion was that the evidence was incapable of supporting a conclusion that Edwards would not have told the alleged lie if he had not committed the charged offence. That conclusion was reached in a context where there was only one possible offence to which the lie was said to relate and it was not suggested that the lie could support an inference about an intermediate fact short of Edwards' guilt of that particular offence.
In our view, references by the plurality in Edwards to a singular offence do not deny the permissible use of an accused's lie, in a case involving multiple counts, as post-offence conduct which may support an inference as to an element of, or as to a circumstance or event connected with, the offences (or some of them).
Moreover, the principles stated by the plurality required that the lie relate to a material issue: ie it must be concerned with some circumstance or event connected with the offence.[46] The lie need not reveal knowledge of the (whole of the) offence - it is sufficient if it reveals knowledge of some aspect of it, including some circumstance or event connected with it.[47] These statements support the use of a lie to support an inference as to a material fact. This has been recognised in subsequent intermediate appellate decisions.[48]
[46] Edwards (209, 210).
[47] Edwards (211).
[48] See, for example, Banks v The Queen [2003] WASCA 198 [73] ‑ [75]; Martinez v The State of Western Australia [2007] WASCA 143; (2007) 172 A Crim R 389 [277]. See also Birdsall v The State of Western Australia [2019] WASCA 79; (2019) 54 WAR 418 and R v Reid [2018] QCA 63; [2019] 1 Qd R 63, referred to at [84] below.
In Edwards, the plurality referred to Tripodi v The Queen,[49] as an authority for the proposition that a jury should be instructed that they may take a lie into account only if they are satisfied, having regard to those circumstances and events, that it reveals a knowledge of the offence or some aspect of it.[50] Tripodi was charged with two counts of larceny of two cars, which were stolen on different days. The prosecution case was that Tripodi was part of a group of offenders who had stolen the vehicles with the intention of selling them. The High Court accepted that lies to police by Tripodi as to knowing persons in the group were capable of corroborating the evidence of a co-offender, on the basis that the statements made to police touched his knowledge of a person with whom the co-offender's evidence connected him. There was no suggestion in Tripodi that the lies were incapable of supporting the prosecution case on larceny of the first vehicle because they were reasonably capable of being explained by Tripoli's involvement in the larceny of the second vehicle, or vice versa.
[49] Tripodi v The Queen (1961) 104 CLR 1, 10.
[50] Edwards (211), footnote 44.
In R v Ciantar,[51] the Victorian Court of Appeal rejected an argument restricting the circumstances in which a jury may find evidence of post-offence conduct to be probative of guilt of a specific offence as opposed to a lesser included offence or other offences on a multiple count presentment. The court recognised, in effect, that evidence, which by itself was equally consistent with consciousness of guilt of a charged offence or another offence on an indictment, may be capable in conjunction with other evidence of sustaining an inference of consciousness of guilt of the charged offence. That is, as this court and its predecessor have recognised,[52] the possible significance of the lie is to be assessed in the context of the totality of the evidence. That reflects what was said in Edwards.[53]
[51] R v Ciantar [2006] VSCA 263; (2006) 16 VR 26 [64] - [72].
[52] Birdsall [252] - [254], [496]; Axford v The Queen (Unreported; WASC, Library No 980200; 20 April 1998), page 26; Banks v The Queen [54] ‑ [55], [112], [114].
[53] Edwards (210).
In Koch v The Queen,[54] the accused was charged with a series of counts (generally of obtaining property by deception) and evidence of flight equally supported an inference of consciousness of guilt for all the charged conduct. The court found that the post-offence conduct was properly left to the jury as evidence of consciousness of guilt. It was, appropriately, a matter for the jury to decide which of the explanations for the applicant’s behaviour should be believed and what, if anything, should be concluded as a result.
[54] Koch v The Queen [2011] VSCA 435 [16] - [25].
Similarly, in Meko v The Queen,[55] the Court of Criminal Appeal of this State proceeded on the basis that a lie which may only 'reveal a generalised consciousness of guilt without pointing to which of a number of possible offences the accused may be guilty' could have value as part of the prosecution case.[56] In Meko, the court was concerned with the question of whether alleged lies were significant as to the alternative offences of wilful murder, murder and manslaughter. In the particular circumstances of that case, where the live issues included self-defence and provocation, the lies were held to be capable of evidencing consciousness of guilt of wilful murder. EM Heenan J (with whom Steytler and Le Miere JJ agreed) said as follows, in terms we would adopt:
[T]he incriminating consequences which the truth might reveal must be relevant or connected to some circumstance or event associated with the offence under consideration, whether that be the sole offence, or one or more of several offences, of which the accused might be convicted. If the connection or association between the lie can only possibly relate to one or some of the offences under consideration then fairness will require that the jury should be told that it cannot relate to the other or others. On the other hand, where the lie shows a consciousness of guilt which does not exclude guilt of any offences charged or open on the indictment then it will not be appropriate for the court to be more specific than the conventional form of the direction. In that case, the direction given will only be part of an entire direction which must convey to the jury the elements which must be proved to their satisfaction before the accused can be convicted of all, or any, of the offences charged, in each case distinguishing between them by identifying what must be established to support a conviction for each one of them.
[55] Meko v The Queen [2004] WASCA 159; (2004) 146 A Crim R 131.
[56] See Meko [51].
In R v Woolley,[57] the Victorian Court of Criminal Appeal recognised that a jury might consider post-offence conduct such as lies in the light of a particular charge where there are a number of separate charges. The jury would be obliged to consider the evidence relevant to each count separately and so consider as part of this evidence the post-offence conduct, such as lies or flight, in question. The court recognised that it is open to the jury to add evidence of lies to other evidence in order to assist in drawing an inference of guilt.
[57] R v Woolley (1989) 42 A Crim R 418, 424.
There will, however, be some cases involving multiple charges where a lie may not be probative of the accused's guilt on any particular count. An example is provided by the decision of the Victorian Court of Appeal in R v Laz,[58] a decision cited with approval by this court in Martinez.[59] In Laz, the accused was charged with one count of rape by digital penetration and one count of rape by penile penetration. The counts related to the same complainant and were alleged to have occurred at about the same time. When interviewed by police, the accused denied sexual contact with the complainant. When giving evidence at trial, the accused admitted digital penetration (which he said was consensual) but maintained his denial of penile penetration. The trial judge was held to have erred in leaving lies as consciousness of guilt on both counts, as the lie established by the accused's evidence related only to the first count. The court went on to say:[60]
At all events there are and were difficulties in drawing inferences in respect of two different counts, especially with counts of the present kind differentiated in time and in seriousness. Whatever course should be taken with conduct amounting to consciousness of guilt where there are a series of alternative counts (or counts permitting alternative verdicts) arising out of the very same facts, very special problems arise when the same lie and thus the same consciousness of guilt is argued to be applicable to charges arising out of more than one event. The applicant had been apprehended and what he feared, and thus what may have given rise to an inference of consciousness of guilt, could not and cannot be satisfactorily identified. It cannot be left in the air, for the inference must be of a kind which logically excludes all other reasonable possibilities. That cannot be done in the present case and thus, whatever directions may have been given to the jury, the admitted lies could not have formed a proper basis for implying consciousness of guilt in respect to either count. It is conceivable that he feared detection on both counts; it is conceivable that he feared detection on the more serious count; it is conceivable that he feared detection on the lesser count; it is conceivable that he feared merely that the bringing of charges and exposure to prosecution would become known amongst his family and friends, notwithstanding his denying the truth of the allegations. In other words this was not a safe case to let any lie admitted or otherwise go to the jury as amounting to consciousness of guilt and thus as an implied admission of one or both of the counts charged. (emphasis added)
[58] R v Laz [1998] 1 VR 453.
[59] Martinez [281], [286].
[60] Laz (467 - 468).
In Martinez, this court observed that the decision in Laz illustrated the peculiar difficulties presented by cases in which the accused is charged with multiple counts.[61]
[61] Martinez [286].
What was said in Laz, set out at [81] above, is an application of the general principle that if the lies (or other post‑offence conduct) are incapable of being probative of guilt in the sense already explained, the judge should so instruct the jury.[62] Otherwise, it is for the jury to decide, on the basis of the evidence as a whole, whether the post‑offence conduct of an accused is related to the charged offence, or some other culpable act.[63]
[62] As to the general principle, see Edwards (211 ‑ 212); Martinez [296] and cases there cited.
[63] R v Baden‑Clay [2016] HCA 35; (2016) 258 CLR 308 [73]; Axford [26]; Banks [54] ‑ [55], [112]; Birdsall [243] ‑ [246]; Ciantar [72].
The court in Birdsall also referred with approval to the decision of the Queensland Court of Appeal in R v Reid.[64] In the latter case Sofronoff P (with whom Morrison JA and Jackson J agreed), accepted that evidence of post-offence conduct may be adduced to prove a single fact in issue rather than whether or not the evidence unequivocally demonstrates consciousness of guilt of the charged offence.[65] Sofronoff P observed:
It has become usual to describe such evidence by the expression 'consciousness of guilt'. Like all professional jargon, such an expression is a handy tool that is used to compress a large set of considerations. However, the actual content of those considerations must be borne in mind when a question arises about the use of such evidence. Such evidence is used as a link in a chain of proof or, if one prefers, one strand in a rope. Like all circumstantial evidence, it is advanced in an effort to raise a particular inference of fact that, in turn, tends to prove guilt. The logical reasoning such evidence supports is based upon the natural argument that if a person is telling lies about a crime that it is alleged he or she has committed, then that person probably has a motive to tell those lies. An inquiry into that motive, in the circumstances of all of the other evidence, may shed light upon the nature of the liar’s involvement in the crime. In the same way other behaviour of a person after a crime has been committed may also prove a motive to hide something and, in turn, the identification of what was to be hidden may be circumstantial evidence of a fact or element that the Crown must prove. In some cases such evidence may even constitute corroboration or admission by conduct.
It is, therefore, a mistake to focus attention upon 'the crime charged' rather than upon the relevant behaviour of the person accused of that crime and what that behaviour may say about the fact it is led to prove. Sometimes it is led to prove only the accused’s complicity in an offence. Sometimes the accused’s involvement is admitted but an element of the offence is in issue and it is that factual element alone which is said to be proved, by inference, from the accused’s actions after the offence had been committed.
Consequently, when considering evidence of post-offence conduct as proof of guilt, whether by proof of statements or other acts, it is essential first to identify the fact sought to be proved by that evidence. The significance of the evidence, and its weight, will vary according to the relationship of the post-offence conduct to the fact sought to be proved by proof of that conduct. (citations omitted)
Available use of the appellant's lies in this case
[64] Discussed in Birdsall at [248].
[65] Reid [81].
The evidence before the trial court in the present case was capable of establishing that the appellant deliberately gave false evidence as to payments which he had made for trailers and dollies. The jury might have been satisfied, based on the bank statements and cheque stubs, that the appellant had altered the cheque stubs to inflate the amount of the cheque, and given evidence about the amounts paid to Mr Bernsten and Mr Richies by those cheques which was deliberately false. The jury might have concluded, based on the amount of the actual payment to Mr Richies, that the cheque to him was not in payment for trailers, stolen or otherwise. The jury might also have concluded that the appellant had given deliberately false evidence of making payments for trailers to Pickles Auctions, when the invoices show the purchase was not for trailers. On appeal, the appellant does not suggest otherwise.
Lies going to credit
Whether the appellant lied in the manner suggested above would be a matter for the jury to determine. The present point is that the evidence was capable of leading the jury to that conclusion. If the jury were satisfied that the appellant had lied about these matters, then that conclusion could clearly affect its assessment of the appellant's evidence that he was in the business of buying, repairing and selling trailers. It might lead the jury to reject that evidence, and to view the appellant's testimony about other matters with suspicion given his demonstrated willingness to fabricate evidence. In that way the alleged lies were capable of impacting on the credibility of the evidence given by the appellant. The alleged lies were capable of leading the jury to reject the defence evidence and case that the appellant was operating a legitimate business of buying and selling trailers and dollies.
Inferences as to intermediate facts and as to knowledge
The appellant's lies were also capable of supporting the prosecution case in the following manner. It would be open for the jury to conclude that the appellant would not have lied about amounts paid for trailers in the manner described above if he was operating a legitimate business. The jury might therefore infer from the lies that the appellant was not operating a legitimate business of buying and selling trailers and dollies. That is, the jury might infer that he lied about payments for trailers because he appreciated that a legitimate business would have records of the purchase of trailers and he lacked records of legitimate purchases. The jury might infer that the appellant would not have lied about these matters if his business was legitimate, as a person operating a legitimate business would have records of legitimate transactions and would have no need to lie.
The fact that the appellant was not operating a legitimate business would then be one of the facts which could be considered as part of the State's circumstantial case that he knew that the trailers and dollies the subject of individual receiving counts were stolen. The fact that the appellant was not operating a legitimate business dealing in property made it more likely that he would know that a particular trailer or dolly he had received was stolen. In that manner the lies could be regarded, when considered with other evidence, as probative of a conclusion that an element of the offence against s 414 of the Code - that he knew the trailer or dolly was stolen - was established beyond reasonable doubt. The same reasoning could also be applied to other property (such as the bales of wool the subject of count 69) which was on a trailer when it was stolen.
Likewise, the fact that the appellant was not operating a legitimate business would then be one of the facts which could be considered in deciding whether the appellant had established a statutory defence to the property laundering charges. Section 563A(2)(a) of the Code relevantly provided for a defence if the appellant proved that he did not know, believe or suspect, and did not have reasonable grounds to believe or suspect, that the property the subject of each individual count was stolen. The fact that he was not running a legitimate business made it less likely that the appellant did not know, believe or suspect, or have reasonable grounds for believing or suspecting, that the property the subject of individual property laundering counts was stolen.
The State on appeal does not contend that the lies were capable of being probative of other elements of the receiving or property laundering offences. The State does not contend that the fact of the lies, or the consequent inference that the appellant was not running a legitimate business, made it more or less likely that the particular trailer or dolly which was the subject of a receiving or property laundering count was the same property as had been stolen from the complainant specified in the charge. That is, the only probative value of the lies advanced by the State relates to the appellant's knowledge that the property the subject of the receiving and property laundering counts was stolen.[66] That is consistent with the use sought to be made of the evidence of these lies by the prosecutor at trial, in the passage quoted at [53] above, and the manner in which the prosecutor's submission was understood by the trial judge, in the emphasised part of the passage quoted at [57] above.
[66] Appeal ts 23 - 24.
In considering a receiving or property laundering count, the jury would have to be satisfied that the dolly or trailer found in the appellant's possession or sold by him was the trailer or dolly which had been stolen from the complainant identified in the count. Given the limited use which the State seeks to make of the lies, the jury would need to be satisfied of that fact by reference to evidence other than the appellant's alleged lies. Unless the property the subject of the charge was proven to be actually stolen, the appellant's guilt of the receiving and property laundering charges would not be established. On the limited basis on which the State relied on evidence of lies as probative of guilt, evidence of lies could only support a verdict of guilty on a count if other evidence established, beyond reasonable doubt, that the trailer or dolly the subject of the count was stolen.
Further, as counsel for the State also properly accepted,[67] evidence of lies would not have any probative value as part of the State's case on the stealing or fraud counts.
[67] Appeal ts 24.
In the above manner, the appellant's alleged lies were capable of supporting an inference as to a material fact - that the appellant was not operating a legitimate business. That fact did not establish the commission of any particular count. But that intermediate fact, together with other evidence led at trial, was capable of supporting an inference that, if it were established that the specific property received by the appellant was stolen, then the appellant knew this to be the case. That intermediate fact was also capable, together with other evidence, of rebutting a defence under s 563A(2)(a) of the Code to the property laundering counts.
Implied admission of guilt of particular counts
In our view, subject to one possible qualification, evidence of the appellant's lies and other evidence at trial were generally not capable of directly supporting an inference (or constituting an implied admission) that the appellant was guilty of a particular receiving or property laundering count.
For example, count 1 was a receiving count relating to a semi-trailer stolen from Holylake Nominees Pty Ltd. It related to a trailer, referred to at trial as 'trailer 5', found on the appellant's property. Considering this count individually, as the jury were required to do, there is no basis for inferring that the appellant would not have told the lies if he had not received the trailer stolen from Holylake Nominees knowing it to be stolen. The conduct alleged by the other counts in the indictment would provide an equally compelling motivation for the appellant to have lied even if he was not guilty of the particular conduct alleged by count 1.
In the present case the indictment charged multiple counts alleging separate conduct of a similar character. In considering any particular count, there was generally no basis in the circumstances of this particular case on which the jury could be satisfied that other charged conduct did not provide a reasonable explanation for the lies.
The possible qualification to the general statement in the previous paragraphs concerns two lies which were related to specific offences. As noted at [45] above, the lie about cheque 332 was specifically related to counts 18 - 22 on the indictment. Further, as noted at [52] above, the lie about the trailer purchased from Pickles Auctions in 2012 was related to counts 10 and 11 on the indictment. It may have been open to the jury to directly infer that the appellant would not have told these lies if he had not committed those particular offences. However, it is unnecessary to complicate matters by dealing with this possible qualification as the difficulties with the trial judge's direction, discussed below, affect all counts.
Directions about lies - general principles
A judge is bound to give an instruction or warning to the jury if, in the circumstances of the particular case, the instruction or the warning is necessary to avoid a perceptible risk of a miscarriage of justice. This is an incident of the judge's duty to ensure the fair trial of the accused.[68] The rationale for giving an Edwards direction is the avoidance of a perceptible risk of a miscarriage of justice if the jury were to misuse the lie so as to make a finding of guilt by impermissible reasoning.[69]
[68] La Bianca v The State of Western Australia [2019] WASCA 105 [50].
[69] Clarke v The State of Western Australia [2018] WASCA 14 [474].
One possible risk of miscarriage which can arise where the prosecution alleges that an accused is lying in his or her evidence was described by the Privy Council in Broadhurst v The Queen:[70]
There is a natural tendency for a jury to think that if an accused is lying, it must be because he is guilty, and accordingly convict him without more ado. It is the duty of the judge to make it clear to them that this is not so.
[70] Broadhurst v The Queen [1964] AC 441, 457; adopted in Edwards (211).
An Edwards direction is ordinarily essential where the prosecution relies on a lie told by an accused as evidence of his or her guilt. It is well established that, if an Edwards direction is required, the direction must ordinarily encompass the following:[71]
(a)the lie must be precisely identified;
(b)the lie will not be evidence against the accused unless the lie was deliberate;
(c)there are many reasons why people tell lies, apart from the realisation of guilt;
(d)the lie cannot be used as evidence against the accused if the jury accepts an explanation for the lie that is consistent with innocence;
(e)the lie will not be evidence against the accused unless the lie was told out of a consciousness of guilt (that is, the accused knew that the truth would implicate him or her in the offence) and the lie reveals knowledge of the offence charged or some aspect of it; and
(f)the facts, events and circumstances relied on by the State to indicate that the lie constitutes an admission against interest must be precisely identified.
[71] Birdsall [230]; Clarke [475].
However, there is no precise verbal formula for the direction. A trial judge should tailor the direction to the circumstances of the case.[72] The giving of a standard 'Edwards direction' will not necessarily prevent an appellate court from finding that the jury may not have understood the limited basis upon which they were to consider lies as consciousness of guilt.[73] Conversely, an imperfect Edwards direction will not inexorably lead to a conviction being quashed.[74]
[72] Birdsall [229]; Clarke [474].
[73] See R v Constantinou [2009] VSCA 257 [77], [81].
[74] R v Renzella [1997] 2 VR 88, 92, noted at J D Heydon, Cross on Evidence (10th Aust ed, 2015) [15220].
Where the lie can only be regarded as connected to or associated with one or some of the offences under consideration then the jury should be told that it cannot relate to the other or others.[75]
[75] Meko [51].
Further, as the Victorian Court of Appeal recognised in R v Ciantar:[76]
Trials which concern a one count presentment with lesser included offences, or a multiple count presentment or a case where the evidence adduced to prove a particular charge discloses the possible commission of other offences all raise the question of whether the post offence conduct relates to a particular offence charged or to 'other offences'. Accordingly, in such cases the jury may have to be alerted to the fact that, before they can treat the post-offence conduct or lies as proof of guilt of the offence they are then considering, they must be satisfied, having regard to all the evidence, that a consciousness of guilt of such 'other offence' does not provide a possible reasonable explanation for the lies. (emphasis in original)
[76] Rv Ciantar [78], quoted in Birdsall [237].
Whether such a direction is required in a particular case will depend on all the circumstances of the case, and the perceptible risks of miscarriage to which those circumstances give rise. The essential point is that the jury should be warned against reasoning that because an accused has lied he or she must be guilty of a charged offence. The direction should ensure that the jury are aware of the possibility that a lie may be told for reasons that do not implicate the accused in the offence the subject of a particular charge, in which case it will not be evidence of the accused's guilt of that offence.
Where the lie tends to prove a material fact, or specific element of the offence, as opposed to directly supporting an inference that the accused is guilty of the charged offence, the limits of the permissible use of evidence of lies should be made clear. One reason for that is that, insofar as the limits of permissible use are not appropriately identified, the jury may act upon the natural tendency referred to in [99] above.
This court has recognised that:[77]
[A] miscarriage of justice will only arise where there is a reasonable possibility that the failure to direct the jury as to the appropriate use made of the lies alleged to have been told by the accused may have affected the verdict by giving rise to a reasonable possibility that the jury may have impermissibly reasoned that the lies were probative of guilt without being directed to the conditions which must be met before that process of reasoning can be engaged.
Adequacy of the direction about lies in this case
[77] Pennington v The State of Western Australia[2013] WASCA 98 [114].
In our respectful view, there were three difficulties with the trial judge's directions about lies in the particular circumstances of this case.
First, the trial judge did not identify with sufficient clarity the charged offences for which the lies were not probative in any sense. As noted above, the lies were not capable of having any probative value as part of the State's case on the stealing or fraud counts. The direction did not make it clear for which offences the lies could be used to support the State's case. The direction quoted at [60] above refers to 'the charged offences', 'the charged offence', 'the offence for which he's charged', the 'receiving of the stolen trailers and dollies', 'the offence' and 'the offence charged or some aspect of it'.
As noted at [102] above, where a lie can only be regarded as connected to or associated with some of the charged offences, the jury should be told that it cannot relate to the other(s). The very large number of counts in this trial reinforced the importance of the need for the judge to identify, with some precision, the charges of which the lies were, and were not, capable of being probative.
Secondly, the trial judge's direction did not confine the jury to the only permissible use which the State sought to make of the lies, which related to the appellant's knowledge that the property the subject of particular counts was stolen. The trial judge's direction refers to the use of the lies to support the State's case generally, and did not indicate that the evidence of lies was not capable of supporting an inference that a trailer or dolly found in the appellant's possession, or sold by him, was the trailer or dolly stolen from the complainant. We do not accept the State's submission that the emphasised part of the passage quoted at [57] above adequately directed the jury as to the limited use which could be made of the lies in relation to the receiving and property laundering charges. The judge's direction as to lies first summarised the State's position[78] and then turned to the 'important directions of law' that her Honour said she was required to give to the jury.[79] Understood in that framework, in the passage quoted at [57] above, the trial judge would reasonably be taken by the jury to have been merely summarising the parties' submissions rather than giving directions of law which the jury were bound to follow as to the limits of permissible use of the lies. Further, the prosecutor's submissions about lies were not of such a character or expressed in such a manner that the limited use sought to be made of them was so plain that no direction as to those limits was called for. Again, the length and complexity of the trial and of the issues for the jury's determination reinforced the importance of the need for the judge to instruct the jury as to, and to confine the jury to, the permissible use of the lies.
[78] Trial ts 4230 - 4236.
[79] Trial ts 4236 - 4239.
Thirdly, the direction did not indicate that it was not open to the jury, when considering an individual receiving or property laundering count (possibly subject to the exceptions noted at [97] above) to directly infer that the lie would not have been told if the appellant had not committed that particular offence. We do not overlook the judge's direction, in general terms, in the concluding part of the lies direction that the jury could not reason that 'he lied therefore he's guilty'.[80] However, the jury were not directed as to the limits of the permissible use of the lies in dealing with the receiving and property laundering counts in the manner described at [87] - [89] and [93] above. The various references to 'the charged offence', 'the charged offences' etc, noted at [108] above, could have led the jury to understand that the alleged lies could be used to infer that the appellant believed he was guilty of all of the charged offences.
[80] Trial ts 4238.
In our view, when the trial judge's direction is taken as whole, in the context of the parties' cases at trial and bearing in mind what we have said in [108] - [110] above, there is, at the least, a real risk that the jury could have apprehended that they could use the lies, if established, as evidence of all of the elements of all of the charged offences. There was, in our view, a real and not remote risk that the jury, having listened to the evidence, counsel's submissions and the trial judge's direction would have reasoned in that manner. In these particular circumstances a direction which clearly indicated the limits of the permissible use of evidence of lies was required to avoid the perceptible risk of a miscarriage of justice. There is a reasonable possibility that the failure to adequately direct the jury may have affected the verdict.[81] The absence of an adequate direction gives rise to a miscarriage of justice in the particular circumstances of this case.
[81] Compare Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1 [34], [64].
Ground 1 is established so far as it contends that the trial judge's direction did not adequately explain to the jury the manner in which they could and could not use the appellant's lies to support the prosecution case. Ground 1 is also established so far as it contends that the lies were not capable of being regarded as evidencing the appellant's guilt of the stealing and fraud offences.
It is unnecessary to deal with the appellant's argument that he was denied procedural fairness because he was not given a reasonable opportunity to respond to the allegation that he lied about the purchase of trailers from Pickles Auctions out of a consciousness of guilt. In any event, we are not satisfied that this aspect of the ground is established. The transcript of the prosecutor's cross-examination of the appellant does not clearly indicate that the State was putting the proposition. However, in submissions before the trial judge, the appellant's trial counsel indicated that she clearly knew the State was relying on the lies about trailers purchased from Pickles Auctions as 'Edwards' lies.[82] The appellant gave further evidence offering an explanation for the lack of any mention of trailers in the Pickles Auctions invoices in re-examination. In any event, there can be no relevant unfairness in an alleged failure to put to the appellant the reason why he lied where he disputes the premise that he had lied.
[82] Trial ts 4191.
The State did not suggest that, if ground 1 was established, the appeal could nonetheless be dismissed under the 'proviso',[83] on the basis that no substantial miscarriage of justice has occurred. Given the potential effect of the failure to adequately explain the limits of the permissible use of the evidence on the jury's verdicts, and given the nature of the issues and evidence at trial, we are of the view that the proviso cannot be applied.
[83] Section 30(4) of the Criminal Appeals Act 2004 (WA).
Conviction appeal ground 2: mistake of fact
Ground 2 relates to a factual error made in the passage quoted at [58] above. The trial judge identified the lie relied on as the payment of $10,000 to Pickles Auctions on 9 September 2012, referred to at [46] above. In fact, this was not the transaction relied on by the State. Rather, the State relied on the appellant's evidence about the transaction on 10 April 2012, referred to at [47] above.
The appellant submits that the factual error that was made by the trial judge was not corrected by either of the parties. The appellant submits that, given that the direction left it open to the jury to erroneously use evidence given by the appellant as evidence of consciousness of guilt, and the potential for that line of reasoning to lead to a conclusion of guilt, the error occasioned a miscarriage of justice.
The State accepts that the reference to the September 2012 transaction was in error, but submits that the error did not give rise to a miscarriage of justice. We accept that submission. In general terms, the lie referred to by her Honour was a lie that the appellant had purchased a Prado together with a trailer from Pickles Auctions in circumstances where the Pickles Auctions invoice recorded only a Prado, and not a trailer being purchased. This was in fact the substance of the lie relied upon by the State. In essence, the factual error made by her Honour related to the date on which the transaction occurred, which was not material to the issue that needed to be determined by the jury.
Conclusion and orders
In Zoneff v The Queen,[84] Kirby J observed that many a lengthy trial has ultimately miscarried because of perceived errors in judicial directions about lies. Unfortunately, this is another example of such a case. It has also been recognised that reliance by the prosecution on lies as collateral conduct providing evidence of guilt is 'fraught with the risk of miscarriage'.[85] One of the reasons for this is the additional complexity in the direction, and in the jury's task, brought about by reliance on lies as evidence of guilt. These considerations combine to warrant a cautious approach by the State when deciding whether to contend that a lie by an accused does more than adversely affect his or her credit, and positively supports the prosecution case. They also demand particular care by trial judges when directing a jury on this notoriously difficult subject.
[84] Zoneff v The Queen [2000] HCA 28; (2000) 200 CLR 234 [29].
[85] R v Sutton (1986) 5 NSWLR 697, 701; R v Heyde (1990) 20 NSWLR 234, 236.
In the present case it was open to the jury to reason that the lies, if established, supported an inference that the appellant knew that the property the subject of the receiving and property laundering counts was stolen. However, on the direction that was given, there is a reasonable possibility that the jury used the appellant's lies in an impermissible manner to support the prosecution case as to all of the elements of all of the offences with which the appellant was charged. A miscarriage of justice has been established, which requires that the conviction appeal be allowed, the convictions on all counts be set aside and a new trial be ordered.
The appeal against conviction having been allowed, it is unnecessary and inappropriate for this court to say anything about the appeal against sentence. Leave to appeal should be refused on the sentence appeal and the appeal should be dismissed on the basis that it has been rendered redundant by the setting aside of the convictions.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MT
Research Orderly to the Honourable Justice Mitchell4 MARCH 2020
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