Leung v The State of Western Australia - [2020] WASCA 81

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   LEUNG -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 81
CORAM:   BUSS P
MAZZA JA
BEECH JA

HEARD:   3 FEBRUARY 2020
DELIVERED          :   27 MAY 2020
FILE NO/S:   CACR 169 of 2018
BETWEEN:   JEROME KA-KWUN LEUNG
Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   McCANN DCJ
File Number            :   IND 583 of 2017

Catchwords:

Criminal law - Appeal against conviction - Appellant convicted after trial of three offences - Alleged lie told by the appellant to the police in an electronically recorded interview - Consciousness of guilt - Whether the alleged lie was admissible as an implied admission against interest or was relevant only to the appellant's credit - Whether the trial judge misdirected the jury in relation to the alleged lie

Legislation:

Criminal Code (WA), s 417(1)
Firearms Act 1973 (WA), s 19(1)(c), s 19(1ac)(b)
Misuse of Drugs Act 1981 (WA), s 6(1)(a)

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	Mr S B Watters
Respondent	:	Mr L M Fox

Solicitors:

Appellant	:	Chambers Legal
Respondent	:	Director of Public Prosecutions (WA)

Case(s) referred to in decision(s):

Allami v The State of Western Australia [2013] WASCA 230
Birdsall v The State of Western Australia [2019] WASCA 79; (2019) 54 WAR 418
Broadhurst v The Queen [1964] AC 441
Cooper v The Queen [2012] HCA 50; (2012) 87 ALJR 32
Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193
Evans v The State of Western Australia [2020] WASCA 26
Hedgeland v The State of Western Australia [2013] WASCA 97
Martinez v The State of Western Australia [2007] WASCA 143; (2007) 172 A Crim R 389
Nestorov v The Queen [1999] WASCA 303
Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316
R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308
R v Carlton [2018] QCA 294
R v Ciantar [2006] VSCA 263; (2006) 16 VR 26
R v Hartwick [2005] VSCA 264; (2005) 14 VR 125
R v Hillier [2007] HCA 13; (2007) 228 CLR 618
R v Konstandopoulos [1998] 4 VR 381
R v Reid [2018] QCA 63; [2019] 1 Qd R 63
R v White [1998] 2 SCR 72

BUSS P:

This is an appeal against conviction.
The appellant was charged on indictment with three counts:
(a)On 25 August 2015, the appellant had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (count 1).
(b)On 25 August 2015, the appellant was in possession of $589,750 cash that was reasonably suspected to be unlawfully obtained, contrary to s 417(1) of the Criminal Code (WA) (count 2).
(c)On 25 August 2015, the appellant was in possession of a firearm, in circumstances of aggravation, while not being the holder of a licence or permit, contrary to s 19(1)(c) read with s 19(1ac)(b) of the Firearms Act 1973 (WA) (count 3).
The appellant pleaded not guilty.
On 6 August 2018, after a trial before McCann DCJ and a jury, the appellant was convicted, as charged, on all three counts and was sentenced to 9 years’ imprisonment.
The appellant's sole ground of appeal asserts, in effect, that the trial judge misdirected the jury in relation to an alleged lie told by the appellant and that the misdirection occasioned a miscarriage of justice.
The sole ground of appeal is without merit. Leave to appeal should be refused and the appeal dismissed.

Overview of the State’s case at the trial

The State’s case at the trial was circumstantial.
Police suspected that drugs were being stored at a rented house in Morley. During the execution of a search warrant at the house, police discovered a safe. The safe was installed in the floor of a walk-in wardrobe within the master bedroom. The bedroom was unfurnished and protected by a PIN-coded locking mechanism on the door. A CCTV system monitored the exterior of the house.
The safe contained three packages of a white crystalline substance (later found to be the methylamphetamine the subject of count 1), the cash the subject of count 2 and a .22 calibre revolver the subject of count 3.[1]
[1] Trial ts 168.
Forensic officers took swabs of numerous items in the master bedroom. DNA analysis revealed the presence of the appellant's DNA profile on:
(a)the handle, the keypad and the exterior cover of the safe in the walk‑in wardrobe of the master bedroom (as part of a mixed DNA profile);
(b)the inside and outside surfaces of a number of latex gloves found in a plastic bag in the ensuite of the master bedroom (as part of a mixed DNA profile);
(c)the outside surface and handles of the plastic bag which contained the gloves (as part of a mixed DNA profile);
(d)a cigarette in the plastic bag;
(e)elastic bands in a 'glad bag' on the bench top in the ensuite of the master bedroom (as part of a mixed DNA profile); and
(f)elastic bands around some of the bundles of cash in the safe (as part of a mixed DNA profile).[2]
[2] See the details of the DNA evidence as set out in exhibit 24.
However, neither the packages containing the methylamphetamine nor the revolver in the safe returned a positive match with the appellant's DNA profile.
The State contended that the appellant used the latex gloves in an attempt to prevent the transfer of his DNA to the drug packages. It also contended that the DNA evidence demonstrated that the appellant was using the safe for storing items and that the contents of the safe were, in effect, under his dominion and control.[3] During the search of the house, police also located a number of sets of digital scales, many of which had traces of methylamphetamine on them. The State argued that these scales, including one set bearing the appellant’s fingerprint, were used for measuring quantities of drugs before sale.[4]
[3] Trial ts 172; closing ts 15, 16.
[4] Trial ts 172, 173.
The State also relied upon the appellant’s prior convictions for possession of methylamphetamine, with intent to sell or supply, and for possession of $17,000 cash reasonably suspected to be unlawfully obtained, as propensity evidence.[5]
[5] Trial ts 410 ‑ 412; closing ts 16.
During an electronically recorded interview with police, the appellant frequently responded to questions with ‘no comment’. However, when asked whether he had ever been inside the master bedroom of the house in Morley, he responded with ‘no’.[6] The State submitted that this answer constituted a denial by the appellant of ever having been in the bedroom and that it was a deliberate lie told out of a consciousness of guilt to conceal his involvement with the contents of the safe.[7]
[6] Appellant’s EROI, 21 April 2016.
[7] Trial ts 174.
According to the State, the appellant was a high level drug dealer or a member of a high level drug dealing organisation. He either owned the drugs and was carrying on his own drug dealing business or he was in possession of the drugs as a representative of the proprietor of the drug dealing business.

The five categories of evidence relied upon by the State

At the trial, the State relied upon five categories of evidence in support of its circumstantial case.
First, the State relied upon forensic evidence. This evidence comprised the DNA evidence referred to at [10] above and the fingerprint evidence referred to at [12] above.
Secondly, the State relied upon the alleged lie told by the appellant in his electronically recorded interview with police that he had never been inside the master bedroom. The State contended that the alleged lie was a deliberate lie told by the appellant to cover up his connection with and possession of the illicit items in the safe (that is, his connection with and possession of the methylamphetamine the subject of count 1, the cash the subject of count 2 and the revolver the subject of count 3).
Thirdly, the State relied upon the appellant's prior convictions referred to at [13] above as propensity evidence.
Fourthly, the State relied upon the evidence of Le Minh Tan, a State witness, who gave evidence to the effect that he assisted the appellant to set up the house in Morley as a 'safe house' for storing drugs and drug related property and that the appellant had supplied him with drugs. Mr Le was the lessee of the house in Morley. He gave evidence that the appellant had asked him to secure the lease. Mr Le proceeded to secure the lease using cash given to him by the appellant. Mr Le said the appellant had asked him to install the CCTV system at the house, the PIN‑coded locking mechanism on the door to the master bedroom and the safe in the floor of the walk‑in wardrobe within the master bedroom. Mr Le did so.
Fifthly, the State adduced evidence that, prior to the police executing the search warrant, the appellant had been seen to have access on a continuing basis to the house in Morley.

The appellant’s evidence at the trial

The appellant gave sworn evidence at the trial.
The appellant said, in essence, that he had no knowledge of or involvement with the drugs or the other illicit items in the safe. He admitted using drugs. However, he asserted that Mr Le supplied him with drugs. The appellant did not supply Mr Le with drugs. The appellant said that he knew there was a safe in the master bedroom. He had touched it. The appellant said that on one occasion he had cleaned the master bedroom. However, he maintained that he had never had anything to do with the contents of the safe.
The appellant testified that during his electronically recorded interview he had meant to say ‘no comment’ to the police question about whether he had ever been inside the master bedroom. The appellant explained that he had planned to respond to every police question with ‘no comment’, but he had panicked because he was being implicated in something in which he had not been involved. The relevant passage in the appellant's evidence reads:[8]
Okay. I take you to a question specifically that I have a note of where the police asked you if you had been in the room, I think. And that was a reference to the master bedroom, obviously?---Yes.
And you said no. Can you explain to the jury what you meant by no?--- Well, I was intending saying no comment, okay, but because I - I was - I panicked as well because obviously I had stayed in the master bedroom and I was being implicated in something. So, yeah, that’s why - I was just in shock and I said no but I - I was intending to say no comment.
I’ll ask you fairly and squarely, Mr Leung, did you intentionally answer no to that question?---No.
Okay. So, you weren’t intending to convey that you hadn’t been in that room?---No.
[8] Trial ts 433.

The trial judge's directions

During an exchange before the trial judge’s summing up, his Honour discussed with the prosecutor the appellant’s assertion during the electronically recorded interview with police that he had never been inside the master bedroom.[9] His Honour characterised the alleged lie as a lie of the kind referred to in Edwards v The Queen:[10]
McCANN DCJ: And would you agree regarding [the] Edwards lie that the jury will need to be told that - or need to be warned that they need to be careful that a consciousness of guilt may not apply to all of the contraband. For example, the man may say, “I’ve not been in that room”, because he knows there’s a whacking great Smith & Wesson in there.
EBELL, MR: Well, your Honour, the way that the case has been run, my view is that it’s part and parcel of the entire indictment.
McCANN DCJ: Okay. I think the jury need to be told that they can’t use the lie for that purpose.
EBELL, MR: For what purpose, your Honour?
McCANN DCJ: To convict on all three counts if they think it a reasonable hypothesis that he might only be concerned about say the cash or the gun - - -
EBELL, MR: Or the drugs.
McCANN DCJ: - - - or the drugs. Yes, they have to be satisfied the consciousness of guilt relates to each count they’re considering remembering the separate trial direction.
EBELL, MR: Yes. But of course on the basis of cross-admissibility.
[9] Trial ts 461 ‑ 462.
[10] Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193.
The trial judge told the jury in his summing up that the appellant's explanation for the alleged lie was that 'he intended to say no comment, but he was in shock and confused and he panicked'.[11] His Honour added that, on the appellant's case, 'he did not intend to deny being in [the master bedroom] and therefore did not lie about it' because what 'he was trying to do [in answer to the police question] was say no comment'.[12]
[11] Trial ts 501.
[12] Trial ts 501.
His Honour also told the jury in his summing up that the State asserted that the appellant intentionally said 'no' in answer to the police question. The appellant decided to waive his right to silence and 'go on the front foot and lay a false trail for the police, and to put forward his defence, "I never had anything to do with [the master bedroom]"'.[13]
[13] Trial ts 501.
The trial judge gave the jury these directions about the alleged lie:[14]
[14] Trial ts 501 ‑ 503.
[The] lie must have been deliberate. … [it] must have been a calculated strategic decision, not panic, not something like that.
…
The motive of the accused person in telling the lie, must have been a knowledge or realisation of his own guilt, or fear that the truth would show - speaking the truth would show his own guilt.
So a fear that by saying, "Yes, I've been in that room," would expose him to a stronger case that he would drop himself in it. So you can't tell an Edwards lie if you don't - if you're not aware that - why you're telling the lie. To get yourself out of a spot.
So the motive for telling the lie must have been a knowledge or realisation of his own guilt or fear that the truth would show his own guilt if he told the truth.
[The] lie must relate to a circumstance or event which is connected with the alleged offence. So a material issue. And in this case, the State say the material issue is that he'd [never] been in that room.
The telling of the lie must be explicable on only one reasonable basis - only one reasonable basis. That telling the truth, would implicate him in the offence with which he has been charged, or the offences with which he has been charged.
So you don't need to be satisfied that the only reasonable explanation for the lie - if it was a lie, was to either prevent himself having to say the truth, or to enable himself to put forward an affirmative defence, which would deflect further police attention from him.
…
[If] you are going to use [the alleged lie], you need to be satisfied that some kind of guilty knowledge was the only reasonable explanation for the lie.
Now, it doesn’t have to be guilty knowledge about count 1, 2, or 3. Just guilty knowledge about some material fact. Like the safe was there, that it had illicit things in it. Even perhaps that he had been in possession of something in that safe, or was in possession of something in that safe.
His Honour then directed the jury that 'any proven consciousness of guilt' in connection with the alleged lie 'must be relevant to the charge you are considering'. His Honour continued:[15]
Hypothetically, a proven consciousness of guilt might be relevant to only one or two of the three charges and not all three.
…
So I hope I'm making myself clear here, members of the jury, a - a finding that he was deliberately concealing his knowledge of the guilty nature of that safe, does not by itself equal a finding of guilt on any one charge.
Anyway, how could any one category do so, but you need to remember that he could - there could be an Edwards lie here that is not capable of specific allocation to any one charge.
Might be the cash, he was supposed to be looking after the cash and he had - someone gave him a gun for that purpose and he couldn't possibly acknowledge that, so he lied. And knew nothing about the drugs. Or he did, but had no - no dominion or control over them.
…
So - in fact I'd go so far as to tell you members of the jury, the Edwards lie could only operate at a general level in this case. And I've already told you, no one category can be used as proof in its own right.
[15] Trial ts 503 ‑ 504.

The ground of appeal

As I have mentioned, the sole ground of appeal asserts, in effect, that the trial judge misdirected the jury in relation to the appellant's alleged lie.
On 30 June 2019, Mazza JA referred the appellant's application for leave to appeal on that ground to the hearing of the appeal.

The appellant's submissions

In his written submissions, counsel for the appellant made four points in support of the ground of appeal.
First, counsel argued, on the basis that:
(a)there was no forensic evidence which linked the appellant directly with the methylamphetamine the subject of count 1 or the revolver the subject of count 3; and
(b)the offending the subject of count 2 was less serious than the offending on count 1 and arguably less serious than the offending on count 3,
that 'the [appellant's] lie was not capable of being allocated to a particular charge and should have been left to the jury as [a lie going only to his credibility]'.
Secondly, counsel accepted that the evidence that some of the elastic bands around some of the bundles of cash in the safe returned a positive match with the appellant's DNA profile could have been used by the jury to conclude that, on the basis of the alleged lie, the appellant was 'distancing himself from [the cash]'. However, counsel argued that the alleged lie could not be used by the jury to conclude that he was 'distancing himself from [the packages containing the methylamphetamine or the revolver]'. The appellant's DNA profile had not been identified on the packages containing the methylamphetamine or the revolver.
Thirdly, counsel argued that, although the appellant's DNA was found on the handle, the keypad and the exterior cover of the safe, that forensic evidence was not connected to the contents of the safe.
Fourthly, counsel argued that the trial judge's comment to the jury that 'the Edwards lie could only operate at a general level in this case'[16] had the effect that the jury may have viewed the alleged lie as being relevant not only 'to the lesser offence involving the money (that had his DNA on it)' but also to the more serious offences involving 'the drugs and/or the firearm'. According to counsel, the appellant 'may well have had the requisite knowledge and intention concerning the money, but [have] been unaware of the presence in the safe of the drugs and/or [the firearm]'. Counsel contended that '[b]y diluting the specificity and application of [the alleged lie] to one that operated at a "general level" and then failing to adequately explain and clarify for [the jury] precisely what he meant by that adjective, there was a very real risk the jury would improperly use the lie in following a pathway to guilt for' the charged offences involving the packages of methylamphetamine and the revolver.
[16] Trial ts 504.
In his oral submissions, counsel for the appellant advanced the following arguments:
(a)Counsel accepted that the alleged lie was probative of a fact in issue, namely whether the appellant had sole or non‑exclusive possession of the drugs the subject of count 1, the cash the subject of count 2 and the revolver the subject of count 3.[17]
(b)The alleged lie related to whether or not the appellant had ever entered the master bedroom. The alleged lie was not told out of a consciousness of guilt and did not reveal knowledge of any of the offences charged or some aspect of them because the alleged lie had not been told in response to a question as to whether the appellant had ever touched the safe.[18]
(c)The appellant's denial that he had ever been in the master bedroom had 'an insufficient connection between the [alleged] lie and the question of [whether he had] knowledge of the contents of the safe'.[19]
(d)The alleged lie was not an Edwards lie because the police question and the appellant's answer did not 'relate to whether or not [the appellant] had ever touched the safe'.[20]
(e)The police question and the appellant's denial were 'too general in nature' and did not relate to any of the charged offences. An alleged lie by an accused will not be admissible as an implied admission against interest unless the alleged lie reveals knowledge of all of the elements of a charged offence.[21]
[17] Appeal ts 6 ‑ 8.
[18] Appeal ts 9.
[19] Appeal ts 12.
[20] Appeal ts 12.
[21] Appeal ts 8, 10 ‑ 11, 14, 16.

The merits of the ground of appeal

Evidence which suggests a consciousness of guilt is admissible as an implied admission against interest. If the State relies upon such evidence in a criminal trial, it is open to the accused to offer some explanation, consistent with innocence, which may nullify its force. Various categories of evidence suggesting a consciousness of guilt have been recognised in the case law. See Cooper v The Queen.[22]
[22] Cooper v The Queen [2012] HCA 50; (2012) 87 ALJR 32 [86] ‑ [87] (Heydon J).
In Edwards, the High Court distinguished between lies told by an accused which affect only his or her credit and lies told by an accused that are evidence because they constitute implied admissions against interest. Lies will constitute implied admissions if they are told out of a consciousness of guilt; that is, the accused told the lies because of a realisation of guilt and a fear of the truth.
An Edwards direction is ordinarily essential if the State relies on a lie told by the accused as evidence of his or her guilt. As Lord Devlin observed in Broadhurst v The Queen,[23] there is a natural tendency for a jury to think that, if an accused is lying, it must be because he or she is guilty. The rationale for giving an Edwards direction is the avoidance of a perceptible risk of a miscarriage of justice if the jury were to misuse the lie so as to make a finding of guilt by impermissible reasoning. There is no precise verbal formula for the direction. A trial judge should tailor the direction to the circumstances of the case. See R v Konstandopoulos;[24] Nestorov v The Queen.[25]
[23] Broadhurst v The Queen [1964] AC 441, 457.
[24] R v Konstandopoulos [1998] 4 VR 381, 388 (Callaway JA; Winneke P & Kenny JA agreeing).
[25] Nestorov v The Queen [1999] WASCA 303 [11] (Kennedy J; Ipp J agreeing).
If an Edwards direction is required, the direction must ordinarily encompass the following:
(a)the lie must be precisely identified;
(b)the 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 upon by the State to indicate that the lie constitutes an admission against interest must be precisely identified.
See Edwards (209 ‑ 211); Osland v The Queen;[26] R v Hartwick;[27] R v Ciantar;[28] Martinez v The State of Western Australia;[29] Hedgeland v The State of Western Australia;[30] Allami v The State of Western Australia;[31] Birdsall v The State of Western Australia.[32]
[26] Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316 [42] fn (83) (Gaudron & Gummow JJ).
[27] R v Hartwick [2005] VSCA 264; (2005) 14 VR 125 [94], [113] (Charles, Chernov & Nettle JJA).
[28] R v Ciantar [2006] VSCA 263; (2006) 16 VR 26 [81] ‑ [87] (Warren CJ, Chernov, Nettle, Neave & Redlich JJA).
[29] Martinez v The State of Western Australia [2007] WASCA 143; (2007) 172 A Crim R 389 [275] ‑ [285] (Martin CJ, Steytler P & Miller JA).
[30] Hedgeland v The State of Western Australia [2013] WASCA 97 [86] (Buss JA; Martin CJ agreeing).
[31] Allami v The State of Western Australia [2013] WASCA 230 [78] (Buss JA; Hall J agreeing).
[32] Birdsall v The State of Western Australia [2019] WASCA 79; (2019) 54 WAR 418 [230] (Buss P & Mazza JA).
An accused's post-offence incriminating conduct, including lies which the State alleges constitute implied admissions against interest, is circumstantial evidence. A jury may accept and act upon evidence of the accused's post-offence conduct, including lies, if the conduct constitutes an implied admission against interest, without being satisfied beyond reasonable doubt that the evidence establishes guilt (that is, without being satisfied that there is no other explanation of the post-offence conduct which is reasonably open on the facts), unless the post-offence conduct is the only evidence against the accused or is an indispensable link in the chain of reasoning on which proof of guilt depends. See Edwards (210); Ciantar [45]; Hedgeland [80]; Allami [81]; Birdsall [231].
In R v Baden-Clay,[33] French CJ, Kiefel, Bell, Keane and Gordon JJ cited with approval the following statement by Major J of the Supreme Court of Canada in R v White:[34]
As a general rule, it will be for the jury to decide, on the basis of the evidence as a whole, whether the post-offence conduct of the accused is related to the crime before them rather than to some other culpable act. It is also within the province of the jury to consider how much weight, if any, such evidence should be accorded in the final determination of guilt or innocence. For the trial judge to interfere in that process will in most cases constitute a usurpation of the jury's exclusive fact-finding role.
[33] R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308 [73].
[34] R v White [1998] 2 SCR 72 [27].
An accused's post-offence incriminating conduct, including lies which the State alleges constitute implied admissions against interest, must not be considered on a piecemeal basis, but must be evaluated as part of the totality of the evidence. See R v Hillier.[35]
[35] R v Hillier [2007] HCA 13; (2007) 228 CLR 618 [46] - [48] (Gummow, Hayne & Crennan JJ).
In R v Reid,[36] Sofronoff P (Morrison JA & Jackson J agreeing) expressed the view that confusion can arise as to the significance of evidence of an accused's post‑offence conduct if consideration of the issue is restricted to the broad question of whether the evidence unequivocally demonstrates consciousness of guilt of the charged offence.
[36] R v Reid [2018] QCA 63; [2019] 1 Qd R 63 [81].
His Honour noted that evidence of post‑offence conduct is often adduced to prove a single fact in issue rather than the commission of a distinct offence which comprises several elements. His Honour explained:
This is so because after committing a crime a guilty person is not usually conscious, for example, of having committed an offence against s 302 Criminal Code 1899 as distinct from an offence against s 303 of the Criminal Code 1899 and does not then set about to behave accordingly. Rather, such a person is conscious that he or she has, for example, stabbed the deceased intending to kill and has succeeded in so doing. The guilty acts are the stabbing, the ensuing death and the killer’s consciousness of having done so intending to kill. Consequently, evidence of post-offence conduct may be led to prove one or more, or all, of those facts. Whether the conduct is particularly relevant to one such fact or element may depend upon the weight of proof of each element that must be established as well as upon the forensic choices made by the parties about the elements and facts that they wish to put in issue [83].
Sofronoff P made these observations in relation to the expression 'consciousness of guilt' in the context of lies:
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 [91].
Later in his reasons, Sofronoff P elaborated:
It is … 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 [92] - [93].
See also R v Carlton.[37]
[37] R v Carlton [2018] QCA 294 [110] - [112] (Bowskill J; Morrison & Philippides JJA agreeing).
Recently, in Evans v The State of Western Australia,[38] Mitchell and Beech JJA and I reviewed the law relating to an accused's alleged lies and referred with approval to the observations of Sofronoff P in Reid. See also Birdsall [248].
[38] Evans v The State of Western Australia [2020] WASCA 26.
A post‑offence lie told by an accused which suggests a consciousness of guilt will be admissible as an implied admission against interest if, relevantly, the lie is probative of a fact in issue, including a fact in issue which the State seeks to prove, wholly or partly, by inference on the basis of the lie and other circumstantial evidence. A post‑offence lie told by an accused which suggests a consciousness of guilt will reveal knowledge of some aspect of the offence charged if the relevant knowledge, either alone or in combination with other evidence, is probative of a fact in issue.
In the present case, the appellant asserts that his alleged lie was capable of affecting only his credit. According to the appellant, his alleged lie was not capable of constituting an implied admission against interest and the trial judge should not have left the alleged lie to the jury on that basis.
However, as counsel for the appellant acknowledged at the hearing of the appeal, the appellant's alleged lie was probative of a fact in issue, namely whether the appellant knew of the illicit items in the safe and had sole or non‑exclusive possession of them.
I am satisfied that it was open to the jury, on the whole of the evidence, to conclude that the appellant's response of 'no' to the police question constituted a denial by the appellant of ever having been in the master bedroom.
If the jury concluded that the appellant's response of 'no' to the police question constituted a denial by the appellant of ever having been in the master bedroom, it was also open to the jury, on the whole of the evidence, to conclude that the appellant's denial was a deliberate lie told out of a consciousness of guilt to conceal his involvement with the contents of the safe.
If the jury concluded that:
(a)the appellant's response of 'no' to the police question constituted a denial by the appellant of ever having been in the master bedroom; and
(b)the appellant's denial was a deliberate lie told out of a consciousness of guilt to conceal his involvement with the contents of the safe,
it was also open to the jury, on the whole of the evidence, to conclude that the lie constituted an implied admission against interest, namely that the appellant knew the drugs, the cash and the firearm were in the safe and that he had sole or non‑exclusive possession of them. See, in particular, the categories of evidence relied upon by the State which I have summarised at [17] ‑ [21] above.
Counsel for the appellant's submission that an alleged lie by an accused will not be admissible as an implied admission against interest unless the alleged lie reveals knowledge of all of the elements of a charged offence is misconceived. It is sufficient if an alleged lie reveals knowledge of some aspect of a charged offence. See [41(e)] above and the authorities cited at [41].
Counsel for the appellant's submission that the alleged lie did not reveal knowledge of the offences charged or some aspect of them cannot be accepted. The alleged lie revealed knowledge of some aspect of each of the charged offences in that the alleged lie was probative of a fact in issue in relation to each charged offence, namely whether the appellant knew that the illicit item the subject of the charge was in the safe and whether he had sole or non‑exclusive possession of that item.
The fact that the alleged lie was told in response to the police question as to whether the appellant had ever been in the master bedroom, and not in response to a police question as to whether the appellant had ever touched the safe, did not preclude the alleged lie from being admissible as an implied admission against interest. The appellant's denial that he had ever been in the master bedroom, viewed in the context of the whole of the evidence, constituted a sufficient connection between the alleged lie, on the one hand, and the appellant's alleged knowledge of and involvement with the contents of the safe, on the other. See, in particular, the categories of evidence relied upon by the State which I have summarised at [17] ‑ [21] above.
It was not necessary that the appellant's DNA profile be found on the packages containing the methylamphetamine and on the revolver, in addition to his DNA profile being found on some of the elastic bands around some of the bundles of cash, in order to establish a sufficient connection between the alleged lie, on the one hand, and the appellant's alleged knowledge of and involvement with the contents of the safe, on the other. The fact that the appellant's DNA profile was found on some of the elastic bands around some of the bundles of cash, but not on the packages containing the methlyamphetamine or on the revolver, does not, as a matter of logic, lead to the conclusion that the alleged lie was relevant only to the cash and not to the methylamphetamine or the revolver.
The police question and the appellant's denial that he had ever been in the master bedroom, viewed in the context of the whole of the evidence, were not 'too general in nature' for the alleged lie to be left to the jury as an Edwards lie.
Counsel for the appellant's submission to the effect that a post‑offence lie told by an accused cannot be probative of guilt in relation to a charged offence if the lie relates to more than one charged offence is misconceived. The submission was not supported by any authority cited by counsel and is contrary to principle. A post‑offence lie told by an accused may be probative of a fact in issue which is relevant to more than one charged offence.
In the present case, the fact in issue which the appellant's alleged lie was adduced to prove was the appellant's knowledge of the illicit items in the safe and his sole or non‑exclusive possession of them. The fact that possession of the illicit items in the safe involved multiple offences did not detract from the probative force of the alleged lie in the proof of a fact in issue in relation to each charged offence. The alleged lie was not confined in its relevance to whether the appellant had knowledge, and sole or non‑exclusive possession, of the cash in the safe.
Each illicit item in the safe was not connected with a criminal activity that was separate and distinct from the other illicit items. The illicit items comprised a prohibited drug; cash which, on the State's case, was the proceeds of the sale or supply of prohibited drugs;[39] and a type of weapon (that is, the revolver) which, on the State's case, is commonly used by drug dealers for personal protection and the protection of their stock in trade.[40] Also, the appellant's prior convictions, relied upon by the State as propensity evidence, involved the appellant being simultaneously in possession of a significant quantity of methylamphetamine and $17,000 cash. The present case did not involve multiple charges arising out of multiple events.
[39] Trial ts 317, 446, 489.
[40] Trial ts 318.
As Major J noted in White [32], there may be cases where an accused's post‑offence lies or other conduct logically support a distinction between two offences arising from the same set of facts. However, the present case is not a case of that kind. In the present case, it was for the jury to assess whether they considered that the appellant's alleged lie, viewed in the context of the whole of the evidence, was probative of his knowledge of and involvement with the illicit items in the safe. It was for the jury to decide, on the evidence as a whole, whether the appellant's alleged lie was related to one or more or all of the charged offences or to some other culpable act. It was also for the jury to decide, on the evidence as a whole, what weight, if any, to give to the appellant's alleged lie in determining whether he was guilty of one or more or all of the charged offences. See Baden‑Clay [73].
The trial judge's directions to the jury in relation to the alleged lie were appropriate. His Honour's statement to the jury that the alleged lie 'could only operate at a general level in this case'[41] would have conveyed to the jury, as was the case, that the alleged lie did not expressly relate to a specific item or items in the safe, but related generally to those items. His Honour's statement, viewed in the context of the evidence as a whole and his Honour's directions on the alleged lie as a whole, was not attended by any error. His Honour told the jury, appropriately, that the alleged lie may relate to '[j]ust guilty knowledge about some material fact' such as 'the safe was there, that it had illicit things in it' or that 'he had been in possession of something in that safe, or was in possession of something in that safe'.[42] Also, his Honour told the jury that, alternatively, the alleged lie might only be relevant to some but not all of the illicit items in the safe (his Honour referred to the revolver as a particular example).[43] There was no risk that the jury might have used the alleged lie impermissibly in reasoning towards their verdicts of guilty.
[41] Trial ts 504.
[42] Trial ts 503.
[43] Trial ts 503.
In the present case, when the appellant's alleged lie is evaluated, as it must be, having regard to all of the evidence, including the following:
(a)all of the illicit items in the safe were items commonly associated with the business of drug dealing;
(b)all of the illicit items in the safe were stored in the same secure location (that is, a floor safe concealed within a walk‑in wardrobe);
(c)the master bedroom was protected by a PIN‑coded locking mechanism on the door;
(d)the house was protected by a CCTV system;
(e)the DNA evidence mentioned at [10] above;
(f)the fingerprint evidence mentioned at [12] above;
(g)the evidence of Mr Le;
(h)the evidence that the appellant had been seen to have access on a continuing basis to the house; and
(i)the evidence of the appellant's prior convictions, referred to at [13] above, which the State relied upon as propensity evidence,
it was plainly open to the jury to be satisfied that the appellant's alleged lie constituted a denial by the appellant of ever having been in the master bedroom; that the alleged lie was a deliberate lie told out of a consciousness of guilt to conceal the appellant's knowledge of and involvement with the contents of the safe; and that the alleged lie was probative of the appellant's knowledge, and sole or non‑exclusive possession, of all of the drugs, the cash and the revolver in the safe.

The alleged lie was not merely capable of going only to the appellant's credit. The alleged lie was capable, having regard to all of the evidence, of constituting an implied admission against interest in relation to all of the illicit items in the safe.
No miscarriage of justice has been established.
The ground of appeal is without merit.

Conclusion

The sole ground of appeal has no reasonable prospect of success. Leave to appeal should be refused. The appeal must be dismissed.

MAZZA & BEECH JJA:

The appellant appeals his convictions of possession of (i) methylamphetamine, (ii) a sum of cash reasonably suspected to be unlawfully obtained and (iii) a firearm while not being the holder of a licence. For the reasons given by Buss P and for the reasons below, we agree with Buss P that the sole ground of appeal is without merit.
The ground of appeal asserts that a miscarriage of justice was occasioned in relation to a lie told by the appellant regarding whether he had been in the master bedroom, where relevant items were found to have been hidden in a safe. On appeal, the appellant accepted that it was open to the jury to find that he had lied in what he had told the police in this respect.[44] The appellant advanced four contentions, reflected in the particulars, in support of the ground. The first two relate to the use(s) to which the lie was capable of being put. The other two concern the adequacy of the judge's direction as to the lie.
[44] Appeal ts 4 - 5.
The appellant's first and primary contention, reflected in particular 1.1 of the ground, was that his lie was only capable of bearing upon credit; it was not capable of being treated as an implied admission of guilt in relation to all or any of the three charges.[45] That is said to be because 'the lie was not capable of being allocated to a particular charge and should have been left the jury as a credit … lie only'.[46] The appellant submits that the lie was not sufficient to reveal knowledge of any of the three offences charged,[47] because the lie was said in response to a question couched in broad terms - 'have you been in the room?'.[48] An element of the appellant's submission is that, unless the lie could be connected to a particular offence and shown to amount to an admission of the guilt of that offence, there was no room for using the lie as an implied admission of anything.[49]

[45] Appellant's submissions [16], [19]; appeal ts 5, 6.

[46] Appellant's submissions [16].

[47] Appeal ts 6.

[48] Appeal ts 6.

[49] Appeal ts 8, 10 - 11.

This last submission reveals and reflects the flaw in the appellant's first contention. As will be seen, the appellant's second contention suffers from the same flaw. A lie need not reveal knowledge of the whole of an offence - it is sufficient if it reveals knowledge of some aspect of it, including some circumstance or event connected with it. The principles governing the use of an accused's lies were recently outlined by this court in Evans v The State of Western Australia.[50] As is explained in some detail in that decision, a lie may be used to support an inference as to a material fact, rather than as to knowledge of the whole of an offence.[51] In so holding, this court adopted what was said by Sofronoff P in R v Reid[52] in the passages set out in [47] and [48] of Buss P's reasons.[53]
[50] Evans v The State of Western Australia [2020] WASCA 26 [63] ‑ [84].
[51] Evans [75] and the cases cited at footnotes 47 and 48 thereof, [84], [87] ‑ [89].
[52] R v Reid [2018] QCA 63; [2019] 1 Qd R 63 [91] - [93].
[53] Evans [84]. The same passages were referred to with approval in Birdsall v The State of Western Australia [2020] WASCA 79; (2020) 54 WAR 418 [248].
The appellant appeared to submit that his submission drew support from what had been said by Buss P and Mazza JA in Birdsall v The State of Western Australia at [230](e).[54] The contrary is so - that statement recognises that it is sufficient if the lie reveals knowledge of some aspect of the offence.
[54] Appeal ts 9, 12.
In this case, the appellant's lie as to whether he had been in the room was probative, as part of a circumstantial case, of whether he had knowledge of the safe and its contents. On appeal, the appellant accepted that this was so.[55] Whether the appellant had such knowledge was material to whether he had the necessary knowledge to establish his possession of each of the methylamphetamine, the sum of cash and the firearm the subject (respectively) of counts 1, 2 and 3. Consequently, considered in the context of the State case as a whole (as to which, see Buss P's reasons), the lie was capable of being probative in relation to each of the three counts.
[55] Appeal ts 7, 10.
That conclusion is also sufficient to dispose of the appellant's second contention (which is presumably intended to be alternative to the first contention), reflected in particular 1.2, that his lie was only capable of bearing on count 2, and not on counts 1 or 3. Considered in the context of the State case as a whole, the lie was comfortably capable of being probative in relation to each of the counts. Whether it was so probative was a question for the jury.[56]
[56] R v Baden‑Clay [2016] HCA 35; (2016) 258 CLR 308 [73]; Evans [83] and the cases cited at footnote 63 thereof.
The appellant's third and fourth contentions relate to the adequacy of the judge's direction concerning the lie. Particular 1.3 complains that the judge failed to give an adequate direction explaining what his Honour meant when he told the jury that the lie could only operate at a general level. Particular 1.4 asserts that the jury were not adequately told, as they needed to be, that the lie may only have been told in relation to count 2.
In our view, there is no merit in these complaints. The material parts of the judge's direction are set out in Buss P's reasons. In substance, they include the following:[57]
(1)The State case was that the lie related to the material issue of whether the appellant had ever been in the master bedroom.
(2)The jury needed to be satisfied that the only reasonable explanation for the lie was some kind of guilty knowledge. In that respect, guilty knowledge did not have to be about the whole of counts 1, 2 or 3, or of any one of them. It was enough if it was guilty knowledge as to a material fact, including the fact that the safe was in the room and had illicit things in it.
(3)When the jury were considering a given charge, they could only use the lie if they decided that the proven consciousness of guilt was relevant to the specific charge that they were considering. In that regard, a proven consciousness of guilt might relate to only one or some of the charges and not all.
(4)Thus, a finding of a lie as to guilty knowledge of the safe was not to be equated with a finding of guilt on any particular charge. The jury needed to bear in mind that there might be, in this case, a lie of a kind that was not capable of specific allocation to one charge. The jury must not jump to conclusions or take improper shortcuts from a finding of a lie to a conclusion of guilt on any individual count.
(5)In this case, the Edwards lie could only operate at a general level.
[57] ts 502 - 504.
The general principles governing the directions a judge must give as to lies are outlined in Evans.[58] Relevantly to this case, 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 the lie should be made clear.[59] The above outline of his Honour's direction demonstrates that the judge amply satisfied this requirement.
[58] Evans [98] ‑ [105].
[59] Evans [105].
There is no merit in the complaint that the judge failed to explain what was meant in referring to the lie operating only at a general level. Given the terms of what the judge told the jury, as summarised in [79] above, no further explanation was needed.
Nor is there any merit in the assertion that the jury were not adequately told that the lie may have only been told in relation to count 2. By use of a hypothetical, the judge specifically identified that that was possible.[60] Although not said in express terms, to our minds what his Honour said clearly conveyed, by implication, that whether that was so was for the jury to determine.
[60] ts 503.
For these reasons, in addition to the reasons given by Buss P, we would refuse leave to appeal and dismiss the appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KS
Associate to the Honourable Justice Buss
27 MAY 2020