Healey v The Queen

[2008] NSWCCA 229

New South Wales
Court of Criminal Appeal

CITATION:	Healey v R [2008] NSWCCA 229
HEARING DATE(S):	29 August 2008
JUDGMENT DATE:	2 October 2008
JUDGMENT OF:	Basten JA at 1; Hislop J at 2; Price J at 3
DECISION:	1. Appeal allowed. 2. Convictions quashed.
CATCHWORDS:	Criminal law - direction to jury on lies evidencing consciousness of guilt - where not part of prosecution case - risk of misunderstanding by jury - necessity to eliminate risk of circular reasoning.
LEGISLATION CITED:	Crimes Act 1900 s 78K Criminal Procedure Act 1986 s 306E
CATEGORY:	Principal judgment
CASES CITED:	Edwards v The Queen (1993) 178 CLR 193 R v Ray (2003) 57 NSWLR 616 R v Sutton (1986) 5 NSWLR 697 Zoneff v The Queen (2000) 200 CLR 234
PARTIES:	Christopher Healey Regina
FILE NUMBER(S):	CCA 2007/3060
COUNSEL:	D Dalton SC (applicant) P Miller (respondent)
SOLICITORS:	Nikola Velcic and Associates (applicant) S Kavanagh Public Prosecutions (respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	07/11/003
LOWER COURT JUDICIAL OFFICER:	Sorby DCJ
LOWER COURT DATE OF DECISION:	8 June 2007

2007/3060

BASTEN JA
HISLOP J
PRICE J

2 October 2008

Healey v R

Judgment

1 BASTEN JA: This appeal should be allowed and the convictions quashed for the reasons given by Price J.

2 HISLOP J: I agree with Price J.

3 PRICE J: The sole ground of appeal is that the trial Judge erred in directing the jury that the appellant’s alleged lies can be taken into account as consciousness of guilt.

4 The appellant was tried in the District Court on an indictment which contained three counts of having homosexual intercourse with a male person above the age of 10 years and under the age of 18 years contrary to s 78K of the Crimes Act 1900. Each of the counts alleged an act of fellatio on M between 1 January 1987 and 6 August 1987. As M was born on 9 May 1973, he was aged 13-14 years at the time of the offences. The jury returned a verdict of guilty on each count.

5 On the first count, the appellant was sentenced to a fixed term of imprisonment of 15 months to date from 3 April 2007 and to expire on 2 July 2008. On the second count, the appellant was sentenced to a fixed term of imprisonment of 15 months to date from 3 September 2007 and to expire on 2 December 2008. On the third count a fixed term of imprisonment of 15 months to date from 3 September 2007 and to expire on 2 December 2008 was imposed. A period of parole of 15 months was set to commence on 3 December 2008 and to expire on 2 March 2010. The total effective sentence was a non-parole period of 20 months to date from 3 April 2007 and to expire on 2 December 2008 with an additional term of 15 months.

The evidence at trial

6 The Crown case was that the appellant had performed the fellatio on M when M attended the Serfontein Clinic for treatment for his learning difficulties and behavioural problems. The appellant was employed at the clinic as a neuro-nurse technician and one of his tasks involved a testing procedure called neuro-metrics.

7 As the trial was a re-trial after a successful appeal by the appellant against conviction following an earlier trial in the District Court on the same counts in 2004, M’s evidence was given by way of an edited audio recording of his testimony at the first trial pursuant to s 306E of the Criminal Procedure Act 1986.

8 M gave evidence that on his second visit to the clinic he was taken by the appellant to a room for a neurological test. He was told to strip down to his underwear. During testing M was fitted with electrodes. He said while he was doing the test the appellant asked him whether he had sex before, whether he had a boy friend or girl friend and then the appellant asked, “Have you ever had your penis sucked?” and he replied “No”. The appellant told him, “Surely you have, you know, you are quite an attractive young man with, you know, beautiful features” and that he was very tanned and brown. M said the appellant got down and sucked his penis. He said he put his pants back on and the appellant told him, “It’s not so bad, see you’ve probably had it done before but you are not telling me.” The appellant gave him a film capsule full of cannabis and about $60-80. This was the conduct which was alleged to constitute the first count on the indictment. M said he did not tell his parents what he had done to him because they were at that time going through a very bad separation. He did not want to cause any more friction and put pressure on them.

9 The offence the subject of count 2 was alleged to have taken place during the fourth visit when M was undergoing neurological testing. M said that the appellant got down on his knees and sucked M’s penis, sliding M’s underpants off. The appellant gave him about $50 and some cannabis. M said he did not tell anyone about what had happened because he was young and already in trouble, had already been expelled from school and did not want to be in any more trouble. During his sixth visit to the clinic, M said that he went into the testing room and was made to strip down to his underwear. The appellant sucked M’s penis and gave him some money and some cannabis. This act of fellatio was not the subject of a charge before the jury.

10 The offence the subject of count 3 was alleged to have occurred on M’s seventh and last visit to the clinic. When M was undergoing neurological testing, the appellant made him strip down to his underwear and then sucked M’s penis saying to him:

“Just don’t worry about anything, you’re a strong boy.”

M testified he did not tell anyone about this incident as he did not want to see his mother in more turmoil as she was already seeing a psychiatrist. M said he thought he and his mother moved to Magnetic Island at the beginning of August 2007. He said he never went back to the clinic.

11 M also gave evidence that on two occasions the appellant drove him to the appellant’s flat. The first occasion took place after his third visit to the clinic. He had been neurologically tested by the appellant and no sexual activity had taken place. After the test was completed he got a lift home with the appellant. M said they went down the lift into a fairly large but not well lit car park and “got in a dark coloured Volvo”. He said to the best of his knowledge the car was parked underneath the building in which was the clinic. The appellant drove him to an area which was a headland between Bondi and Clovelly. He said he knew the area well as he had been a fanatical surfer as a child. He could distinctly smell and hear the surf. He said the appellant parked his car underneath an older style building and walked up a very thin flight of stairs which was external to the building up to a studio apartment. In the apartment the appellant gave him cannabis to smoke and bourbon or whisky to drink. No sexual activity occurred. He was driven to his home at Haberfield by the appellant at about 8.30 - 9pm.

12 The second visit to the apartment occurred after M’s fifth visit to the clinic. He was tested by the appellant but nothing sexual occurred. After that the appellant offered him a lift home in his car. He said the car was parked in a car park that appeared to be in the basement and the same spot as on the previous occasion. M said they sat in the car for five or ten minutes just talking, then the appellant performed oral sex on him. He was given some money and cannabis by the appellant who then drove him to his unit and they went inside. M said they smoked cannabis and drank alcohol together and there was a sex movie on the television. The appellant asked whether he could perform oral sex on him to which M replied “No”. He said he also refused the appellant’s request for M to perform sex on him and for the appellant to masturbate him. There was no sexual activity between them in the unit and the appellant drove him, M said, home to Haberfield. The act of fellatio in the car park was not charged.

13 M gave evidence that he told his wife about all these incidents approximately three or four years ago after they watched a documentary on television about child abuse. He reported the matter to police about two to three years ago. He said the reason why it took so long for him to do that was because he was not ready for it.

14 In cross-examination by Mr Pontello, the appellant’s counsel during the first trial, M had told the jury that he was a big fan of the band, the Eurythmics. He did not recall the appellant asking him during one of the visits to the clinic what kind of music did he like listening to nor did he recall the appellant telling him that he had a Eurythmics cassette. M denied that he had asked if he could borrow it. He further denied bumping into the appellant at the Bondi Junction Mall, asking him if he had the tape in his car and saying to him that he lived at Haberfield, could they get the cassette and give him a lift home to Haberfield. He said that he did not go with the appellant to his apartment and collect the tape.

15 Mrs Barbara Serfontein, the widow of Dr Gordon Serfontein who established the clinic, said that the appellant was employed by the clinic in 1987 as a neuro-technician. The records that she had located confirmed that M had attended the clinic on at least three occasions. Neurological tests, she said, were conducted in an enclosed room with no windows and one door. The testing procedure would take up to one hour and electrodes would be put on the children’s heads. During testing, the children would not have to remove their clothes except if they were wearing caps or bulky overcoats.

16 Mrs Doreen Murray, a remedial teacher employed by the clinic, recalled that the appellant owned a green coloured Volvo sedan which he drove to work a couple of times a week and parked at the Domain Car Park costing him about $10 per day. She said he lived in Clovelly. She testified that children could play a computer game called Donkey Kong in the waiting room of the Serfontein clinic or in the neurological testing room while they were waiting. Mrs Eileen Vaughan, a receptionist employed by the clinic in 1987, recalled a conversation between Mrs Murray and the appellant about the expense of his driving to work and parking at the Domain Car Park. She heard the appellant tell Mrs Murray that he liked to have his car in the city because he could use it after hours.

17 Detective Senior Constable Capon testified that M reported to The Rocks Police Station on 21 June 2002 about being sexually assaulted by the appellant in 1987. His enquiries had included obtaining records from the Department of Fair Trading which showed that the appellant previously leased a unit at 1/336 Clovelly Road, Clovelly from January 1984 to April 1987 and that he also leased another unit at 8/1 Thorpe Street, Clovelly from May 1987 to April 1989. He had been to the Clovelly Road unit and there was no view of the ocean from the bathroom window. In order to enter the Thorpe Street unit, there was a stairway that went down the side of the building. The police officer said he could hear the sound of the ocean waves crashing on the rocks from that unit. Records from the Roads and Traffic Authority revealed, he said, that the appellant owned a 1974 model green Volvo between July 1984 and 24 August 1987. There was no underground parking at the clinic.

18 In evidence during the trial, the appellant denied he had ever sexually assaulted M. He also denied that he had supplied him with cannabis or alcohol. He said he remembered the complainant when he attended the clinic in 1987 because he had an “amazing haircut” and he found out later that his mother was a hairdresser. He said that M came to his testing room to play the Donkey Kong game. He testified that M once followed him down to Martin Place when he was getting his lunch. He said they had a discussion about the pop group the Eurythmics. He told M that he had a tape of the Eurythmics given to him by a friend and M asked if he could borrow that tape.

19 He said in 1987 when he was on his way home from work he ran into M in the Bondi Junction Mall and M asked if he had the Eurythmics tape. He told M that he had the tape in his unit and he was going to play pool at Leichhardt. M told him he lived in Haberfield and if they picked up the tape then it would not be far out of his way to drop him home. The appellant said he took M to his unit in Thorpe Street Clovelly in his green Volvo. M accompanied him inside the unit and the appellant found the tape and gave it to him. He said they left the unit, returned to the car and he then drove M to Haberfield before going on to Leichhardt.

20 The trial advocate’s cross-examination of the appellant included a close examination of his account of the encounter at the mall and M’s attendance at his unit to pick up the Eurythmics tape. The trial advocate suggested to him that he had “just made up” in the witness box his evidence about getting the tape back from M’s house which the appellant rejected. The trial advocate did not directly put to him that he had lied about the encounter at the mall or the exchange of the Eurythmics tape although it is evident that the appellant’s version of these events was challenged in cross-examination.

21 The appellant’s sister, Bernadette Mason, gave evidence that the appellant did not have a video player or recorder at the time when she and her husband helped him move from one unit in Clovelly to another. She did not see any video tapes. She had visited his unit on many occasions and during those visits she had never observed a video or cassette player in the unit. In cross-examination, she said during moving there were unopened boxes and she could not remember looking at those boxes and she did not know what was inside.

Closing addresses

22 During her closing address, the trial advocate said (T 242-243):

“The complainant agreed that he was a big fan of the Eurythmics and had in fact gone to one of their concerts with his parents and it was suggested to him that the accused had bumped into him in Bondi Junction Mall and that they had that encounter that led to [M] being taken to the accused’s apartment and being given that Eurythmics tape.
[M] denies that that incident occurred at all. The Crown says you will accept [M’s] evidence about that.

…

But [M] was able to describe that unit in Phillip (sic) Street you might think, and you might think that the accused’s version of how [M] came to be was just made up to explain why [M] could describe that unit.”

23 Mr Martin, counsel for the appellant, addressed the issue of the conflict in the testimony between M and the appellant as to the Eurythmics tape and the meeting at Bondi Junction as follows (T 257-258):

“One of the things the Crown relied upon on was the fact that the complainant denied that there was this conversation that took place at Martin Place, and denies that there was this exchange about the Eurythmics either at Martin Place or at Bondi Junction. It does make you wonder how then in 2004 did Mr Pontello, the man who was asking the questions, how did he know to ask these questions. “Are you familiar with the band the Eurythmics?” “Yes”. “Well did you listen to them?” “I sure did in the first half of 1987 I went to their rock concert with my mother and step-father in 87 or 6.” So you were a fan were you? “I was a big fan of the Eurythmics.” Why does Mr Pontello out of all the rock groups in the world, in 1987 I guess, why does he pick out the Eurythmics. Well one of the ways in which he would have picked out the Eurythmics is because he would be acting on the instructions of the accused which you might think might be along the lines of I knew this kid, I remembered him, he was a big fan of the Eurythmics and he borrowed a Eurythmics tape from me. How else would Mr Pontello be able to narrow in on that particular choice and yet the Crown says well the complainant says that conversation didn’t take [sic] in Martin Place, didn’t take place in Bondi Junction.”

Discussions between the trial Judge and counsel

24 After closing addresses had been completed and in the absence of the jury the following discussion between the trial judge and counsel took place (T2 30/3/07):

“Trial Advocate: Mr Martin might like to turn his mind as to whether he seeks a Zoneff or Edwards direction concerning lies.

His Honour: Well I don’t think - again that’s not been put.

Trial Advocate: Well I suggested to the accused in his evidence and to the jury that he’d lied about the suggestion that he’d given the complainant the Eurythmics tape and that encounter at Bondi Junction and his evidence that he subsequently went to the complainant’s home, so…

His Honour: Well yes I must say it’s…

Trial Advocate: It’s just a question of which direction I suppose.

His Honour: …usually given when it’s the complainant’s accused of lying but very well you can think about the Zoneff direction Mr Martin.
Martin: I suggest that it’s inappropriate, it’s a matter of--

His Honour: -- Do you want a Zoneff direction or not?

Martin: No your Honour it’s not appropriate when it’s merely a matter of cross-examination, it’s not an allegation that these are material lies told about matters directly related to an element of the offence.

His Honour: It is ancillary to it but it is a lie that’s put.

Trial Advocate Well I would just comment your Honour there is a risk that the jury might use the suggestion that the accused had made up this version of this encounter to explain why the complainant was able to describe his unit…

His Honour: The flat in such detail.

Trial Advocate: And they might reason that that was because of the consciousness of guilt even, not that I put it on that basis your Honour but there is that risk.
His Honour: Well I think you’d better – if I’m going to put the consciousness of guilt we’d better work out what basis we’re going to put it Ms Crown.

Trial Advocate: Yes

His Honour: You might let me know Monday morning.

Trial Advocate: Yes your Honour.

His Honour: What form you want that to take. I think there’s got to be some direction given about it now.

Trial Advocate: Yes your Honour.”

25 In his evidence during the trial, the appellant had contradicted in important respects what M had said. The trial advocate had not put to him in cross-examination that he had lied about the encounter at the mall or the exchange of the Eurythmics tape. She had, however, suggested to the jury that his version of how M came to be in his unit was made up to explain why M could describe the unit.

26 As somewhat cryptic references are made by the trial Judge and counsel to Edwards and Zoneff directions during their discussions and, as will become apparent, their minds may not have been in harmony about what was meant by such references, it is necessary to identify what are Edwards and Zoneff directions.

27 An Edwards direction is a full direction in accordance with the principles set out in Edwards v The Queen (1993) 178 CLR 193. The key passage in the majority opinion (Deane, Dawson and Gaudron JJ) is at 210:

“A lie can constitute an admission against interest only if it is concerned with some circumstance or event connected with the offence (ie 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 that it was told because the accused knew that the truth of the matter about which he lied would implicate him in the offence, or, as was said in R v Lucas (Ruth), because of ‘a realisation of guilt and a fear of the truth’.
…

If the telling of a lie by an accused is relied upon, not merely to strengthen the prosecution case, but as corroboration of some other evidence, the untruthfulness of the relevant statement must be established otherwise than through the evidence of the witness whose evidence is to be corroborated. If a witness required to be corroborated is believed in preference to the accused and this alone establishes the lie on the part of the accused, reliance upon the lie for corroboration would amount to the witness corroborating himself. That is a contradiction in terms.”

28 An Edwards direction, as a general rule, should only be given if the prosecution contends that a lie is evidence of consciousness of guilt: Zoneff v The Queen (2000) 200 CLR 234 at 244.

29 The trial advocate during her cross-examination did not expressly or impliedly contend that the appellant’s evidence about the encounter at the mall or the Eurythmics tape was given because he knew that the truth would implicate him in the commission of the offences. Furthermore, no such submission was made by the trial advocate to the members of the jury when she addressed them.

30 What is known as a Zoneff direction is generally given in cases:

“…in which there is a risk of a misunderstanding about the significance of possible lies even though the prosecution has not suggested that the accused has told certain lies because he or she knew the truth would implicate him or her in the commission of the offence.” See Zoneff v The Queen per Gleeson CJ, Gaudron, Gummow and Callinan JJ at [24].

31 An appropriate direction for such a case was said by the majority in Zoneff at [23] to be in the following terms:

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

32 After further discussions with counsel in the jury’s absence the trial Judge returned to the question of a direction on lies. After asking the trial advocate whether she had actually put to the appellant that he was lying to which the trial advocate replied she had and had told his Honour it was in the transcript, the trial Judge said (T 14 30/3/07):

“…Well on that basis it probably looks like it’s going to have to be but I’ll hear you further both on Monday morning. Mr Martin as well.”

and then went on to suggest to both counsel that they might agree as to the form the direction should take. The trial Judge then added:

“Whether it’s a complete Zoneff or the limited one.”

33 With respect to his Honour, what was meant by a complete or limited Zoneff is not entirely clear. His Honour’s recollection, however, that the Crown had not put to the appellant that he was telling lies when he gave his account of meeting M at the mall and of the exchange of the Eurythmics tape was correct. It might be that the trial advocate was mistaken in her response to his Honour’s question with her suggestion to the appellant that he had made up a story in the witness box about getting the tape back, contacting M about it and going to his house to collect it.

(T 203 L 15- 20 29/3/07)

34 In any event, when the Court reconvened on the following Monday, further discussion ensued in the jury’s absence concerning a lies direction. The trial advocate identified the lies that she was referring to as to the encounter at the mall, the exchange of the Eurythmics tape and that the appellant then got the tape back from M. The following exchange then took place between the trial Judge and counsel (T 3 2/4/07):

“His Honour: Now Mr Martin, it’s over to you. Do you wish to have a direction for …

Martin: No, your Honour, I think…

His Honour: For forensic reasons. I mean the direction under Zoneff they make it quite clear the jury has to be satisfied it’s a deliberate lie.
Martin: They have got to be satisfied that it is a lie and it has got to have a character that is evidence of consciousness of guilt and a fear of the truth. Both of those incidents, that my friend refers to, are evidence of further contact between
the --
His Honour: It’s got to relate to an issue that is material and it reveals a knowledge of the offence and it was told because the accused knew that the truth of the matter would implicate him on the offences charged. It seems to come within those three criteria, doesn’t it? You would say so, Ms Crown, would you not?
Crown Prosecutor: I think that there is a risk that the jury might use it in that way, your Honour, and my submission is that a Zoneff direction at the very least is called for in this case.

His Honour: I think that’s right, Mr Martin.

Martin: I don’t want to cavil with your Honour about that.

His Honour: Well I’ll give a Zoneff direction--

Martin: I accept that the Zoneff if your Honour takes that view that the Zoneff direction is appropriate.”

35 Whilst his Honour was referring to a Zoneff direction it appears from what was said that he had in mind an Edwards-type direction. What was understood by the trial advocate from this exchange is unclear.

36 Following further questions from the trial Judge the trial advocate confined her identification of what were said to be lies to the encounter at the mall with M and to the exchange of the Eurythmics tape at the unit.

37 His Honour went on to discuss with Mr Martin what would be said to the jury about how the appellant met the allegation of lying. The trial Judge asked Mr Martin if it was sufficient to tell the jury (T 5 2/4/07):

“The accused meets the allegation of lying when he gave you an account of [M] telling him he was a great fan of the Eurythmics, and this occurred when the accused and [M] were at Martin Place before the casual meeting in the Bondi Mall recounted to you by the accused.”

to which his Honour received Mr Martin’s affirmative response.

38 After some further discussion on matters unrelated to this appeal, the jury was brought into court and the trial Judge commenced his summing up.

The direction to the jury

39 On the question of lies, the trial Judge gave the following direction to the jury (su 31-33):

“Members of the jury, the Crown submits to you that the accused has lied to you and those lies are briefly that, the first lie being, the Crown alleges, that there was an encounter at the Bondi Junction Mall with [M]. The second lie, the crown alleges, the accused said was that there was an exchange of the Eurythmics tape at the unit of the accused.
Members of the jury, what then is a lie? A lie may be defined as speaking untruthfully with intent to mislead or deceive or to convey a false impression or practise a deception. Statements can be inaccurate without being a lie as the author may simply be mistaken or may be labouring out of misconception or misunderstanding. On the other hand, sometimes statements that are literally true may be used to mislead or deceive. The accused meets the allegation of lie when he gave you an account of [M] telling him he was a great fan of the Eurythmics pop group and this occurred when the accused and [M] were at Martin Place before the casual meeting at Bondi Mall, recounted here by the accused.
Members of the jury, before you can take these asserted lies, as alleged by the crown, into account as evidence of the guilt of the accused you must be satisfied that it was in fact not only lies but also deliberate lies. If you are not so satisfied you cannot use it for this purpose. If, however, you are satisfied that they were deliberate lies then you must also be satisfied that the lies, one, relate to an issue that is material or relevant to the offences charged and two, that the lies reveal a knowledge of the offence or some aspect of it and three, the lies were told because the accused knew that the truth of the matter about which he lied would implicate him in the offence charged or to put it another way, because of a realisation of guilt and fear of the truth. I emphasise that you must be satisfied of what was in his mind was guilt of the offence charged and not some other crime. You must remember, however, that people do not always act rationally and that conduct of this sort may sometimes be explained in other ways. There may be many reasons for telling a lie apart from realisation of guilt. For example, a lie may be told out of panic to escape an unjust accusation or to protect some other person or to avoid consequences unrelated to this offence. If you think there is a reasonable possibility that the lie was told for such a reason or the lies were told for such a reason then you cannot use it for this purpose. If you are satisfied, however, that the three matters I set out above to which I have referred then you are entitled to use the finding in aid of the other evidence of the crown case as pointing to the guilt of the accused. Standing by itself, however, it could not prove guilt.”

40 Shortly before the summing up had been completed, Mr Martin in the absence of the jury asked the Judge for its discharge. The following exchange then ensued between Mr Martin and his Honour (T 45 2/4/07):

“MARTIN: …It’s my motion that your Honour should discharge the jury. Your Honour has directed them that they can take into account alleged lies. The said lies are said to arise by the Crown suggesting to the accused in the witness box that he has given false accounts in relation to two incidents.
There is no independent evidence, in my submission, that the Crown points to, or could point to, indicating that those matters are lies. It is a mere contradiction by the complainant and in the absence of independent evidence from which the jury can conclude independently that those things were lies, then the Zoneff direction that your Honour has given is inappropriate and unnecessarily draws attention to contradictions that are merely contradictions between the complainant’s evidence and the accused’s evidence giving it an evidentiary value that it does not have--
HIS HONOUR: That’s the submission on lies, is it, before you go on to something else?

MARTIN: Yes your Honour. My submission is that--

HIS HONOUR: Well, we’ll deal with that first then. Firstly Mr Martin, I discussed what I was going to put to the jury in your presence, I asked for your comment, without the actual lies that I was going to do, and there was no demur from you.

MARTIN: Your Honour --

HIS HONOUR: Now Mr Martin, I haven’t quite finished and I put it to you quite clearly and you agreed. That’s the first point I make, quite clearly, and secondly a lie is a lie. It’s a verbal statement and it could be true or false. So I reject your application…”

Mr Martin took his application no further.

Submissions

41 The appellant submitted that where the Crown had disavowed the use of the alleged lies as being available on the question of consciousness of guilt, the trial Judge should have specifically directed the jury that the alleged lies were not available for this purpose. By directing the jury in accordance with Edwards v The Queen, the alleged lies had been left to the jury as being available to be used as consciousness of the appellant’s guilt even though the Crown had not suggested that they were capable of being used in that way. A miscarriage of justice had occurred and the convictions should be overturned.

42 The Crown agreed that it would have been better if the trial Judge had given a Zoneff direction but submitted that the trial Judge’s direction whilst raising the prospect of lies evidencing consciousness of guilt effectively removed that possibility from the jury’s consideration by the limitations it imposed on lies. The jury would have appreciated that the visits to the house could only have been evidence of the relationship between the appellant and M. Given the directions as to the limited use that could be made of the uncharged acts the jury would not have reasoned that any more use could be made of the visits to the apartment where no sexual acts took place. They would not have been satisfied that the lies (if they were found to be lies) revealed a knowledge of the offences or some aspect of them and were told because the appellant knew the truth would implicate him in the offences charged. The jury, the Crown submitted, may have considered it possible that he lied although no offence occurred in the unit because the visits were in the circumstances inappropriate and did not reflect well on his character. To find that the appellant had lied, the jury had to have decided that M was a credible witness. Having reached that conclusion, the Crown contended conviction was inevitable.

Dealing with the Appeal

43 The direction which his Honour gave as to the alleged lies was a full direction in accordance with Edwards v The Queen. It seems that there had been an unfortunate misunderstanding between the trial Judge and counsel for the appellant. Mr Martin’s acceptance of a direction being given on the alleged lies, it appears, was founded upon the understanding that his Honour’s charge to the jury would be given in the terms recommended in Zoneff v The Queen. This case highlights what has been often said that the topic of lies must be approached with considerable care: see for example R v Sutton (1986) 5 NSWLR 697, Edwards v The Queen, Zoneff v The Queen, R v Ray (2003) 57 NSWLR 616. Whilst it is evident that his Honour diligently applied himself to the question of the alleged lies when it was raised by the trial advocate, his Honour’s reference to a “complete Zoneff or the limited one” was unhelpful. It was incumbent upon counsel when directions were being discussed if there was ambiguity to raise that with the trial Judge so that any misunderstanding might be removed.

44 The trial advocate had not contended that the alleged lies had been told out of consciousness of guilt but had drawn the trial Judge’s attention to the risk that the jury might use her suggestion that the appellant had made up his version of how M came to be in his unit to reason that he did so because of consciousness of guilt. The risk of a misunderstanding by the jury about the use of the alleged lies could have been dealt with by a direction which included a warning not to follow a process of reasoning that just because they found that the alleged lies had been established that those lies were evidence of the appellant’s guilt and the trial advocate had not suggested that they should be. The direction given by the trial Judge did not provide any instruction so as to eliminate the risk of circular reasoning.

45 Although an Edwards direction may be given to protect an accused where there is a real danger that a jury may view an accused’s lie as evidence of guilt even though the prosecution has not contended this, such a direction:

“…s hould be done in terms that make it clear that it is given for such reason, and that ensures that the evidence is not used in a way which risks bolstering the prosecution case, by being elevated to an admission of guilt” : R v Ray per Wood CJ at CL at [100].

46 The members of the jury were not informed by the trial Judge that the purpose of the direction was to protect the appellant nor was it given in terms which ensured that the alleged lies were not used to bolster the prosecution case by being elevated to an admission of guilt. By the instruction given, the jury was entitled to use the appellant’s evidence of the encounter at the mall and the exchange of the Eurythmics tape in aid of other evidence in the Crown case as pointing to the guilt of the appellant if it was satisfied that what was said were deliberate lies which related to an issue that was material to the offences charged and revealed in the appellant a knowledge of those offences and were told by him because of the realisation of guilt and fear of the truth.

47 The Crown’s contention that the members of the jury could not have been satisfied of these matters is to be rejected. Although his Honour had directed the jury that the evidence of the two uncharged acts of oral sex had been admitted into evidence “solely for the purpose of placing the evidence of the three other acts relied upon by the Crown in the indictment into a true and realistic context” (SU 17), nothing was said as to the relevance of the visits to the unit or the use that the jury could make of that evidence. The jury was not reminded of what had been said by the trial advocate in her opening address that the evidence of the visits would be given so that the members of the jury could understand the complete relationship that existed between M and the appellant (T 69).

48 It was necessary for the trial Judge to provide in clear terms a warning to the jury that it could not engage in circular reasoning and treat any lie found to have been told by the appellant as affording evidence of his guilt of the offences. A suitably adapted direction in the terms suggested in the passage from Zoneff I have quoted at [31] was required. His Honour’s charge to the jury enhanced the importance of the alleged lies so that they could be used as evidence of the appellant’s guilt. I am satisfied that the appeal has been established.

49 This was a trial in which the critical evidence was M’s word against the word of the appellant. The Crown’s case had its limitations which included a lengthy delay in M’s complaint. The verdicts of guilty would not otherwise have been inevitable. The misdirection was, in my opinion, of a nature which caused a miscarriage of justice and the proviso does not apply.

50 I propose the following orders:

1. Appeal allowed.

2. Convictions quashed.

51 The non-parole period of the appellant’s sentence expires on 2 December 2008. It is for the Director of Public Prosecutions to decide whether in view of the time served by the appellant and the previous trials whether he should be put on trial again.

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