McKey v The Queen

[2012] NSWCCA 1

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Mark McKey v Regina [2012] NSWCCA 1

Hearing dates:

26 September 2011

Decision date:

01 February 2012

Before:

Whealy JA
Hislop J
Latham J

Decision:

Decision Under Appeal. Appeal against conviction allowed.

The conviction is quashed and the sentence imposed on 8 October 2009 is set aside.

Enter a verdict of acquittal

Catchwords:

CRIMINAL LAW - Appeal against conviction - sexual assault - Crimes Act 1900 s66C - whether miscarriage of justice - whether trial judge erred in failing to adequately direct the jury in relation to the appellants silence or inaction in response to allegations - whether trial judge erred in failing to adequately direct the jury regarding the circumstances in which the appellants silence or inaction could be used as evidence of consciousness of guilt - whether trial judge erred in failing to adequately direct the jury in relation to the submission by the prosecutor to discount the whole of the appellants evidence due to silence or inaction - implied admissions - evidentiary significance of post offence conduct - directions by trial judge where there may be risk of a misunderstanding on the part of a jury - appeal allowed - conviction quashed.

Legislation Cited:

Crimes Act 1900

Cases Cited:

Edwards v The Queen (1993) 178 CLR 193
R v MMJ [2006] VSCA 226
R v Nguyen [2001] VSCA 1

Category:

Principal judgment

Parties:

Mark McKey - (Appellant)
Regina - (Crown Respondent)

Representation:

COUNSEL
S Corish - (Appellant)
C Maxwell QC (Crown Respondent)
SOLICITORS
Legal Aid Commission of NSW - (Appellant)
Solicitor for Public Prosecutions - (Crown Respondent)

File Number(s):

2009/6577

 Decision under appeal 

Date of Decision:

2009-10-08 00:00:00

Before:

Freeman DCJ

File Number(s):

2009/6577

Judgment

1. WHEALY JA : I agree with Latham J.

1. HISLOP J : I agree with Latham J.

1. LATHAM J : The appellant appeals against his conviction after trial by jury on one count of sexual intercourse with a child above the age of 14 years and under the age of 16 years (s 66C, Crimes Act 1900). The offence carries a maximum penalty of 10 years imprisonment. The appellant received a sentence of 3 years imprisonment, but there is no appeal against sentence.

1. The offence was charged in the alternative to an offence of sexual intercourse without consent. It was alleged that the appellant digitally penetrated the complainant, whilst both were staying at the home of the complainant's sister (KN) in preparation for KN's wedding that weekend in Moree. The appellant was the groom's best man at the wedding. The appellant, who gave evidence at trial, disputed that any sexual activity had taken place between himself and the complainant. The jury's verdict reflects an acceptance of the complainant's evidence, albeit a failure to be satisfied beyond reasonable doubt that the complainant did not consent or that the appellant knew that she was not consenting.

1. All three grounds of the appeal complain of alleged errors in the directions of the trial judge relating to the appellant's behaviour at the time of, and following, the communication to the appellant by the complainant's sister and her husband of the allegation of sexual impropriety. Evidence on this topic was adduced in the Crown case and the appellant was cross examined upon it.

1. The grounds of the appeal are :-

Ground 1 : the trial judge erred in failing to adequately direct the jury in relation to the appellant ' s silence or inaction in response to the allegations put to him by KN and N and as a consequence the trial miscarried.

Ground 2 : the trial judge erred in failing to adequately direct the jury regarding the circumstances in which the appellant ' s silence or inaction could be used as evidence of consciousness of guilt and as a consequence the trial miscarried.

Ground 3 : the trial judge erred by failing to adequately direct the jury in relation to the submission to the jury by the prosecutor to discount the whole of the appellant ' s evidence due to his silence or inaction in response to the allegation put to him and as a consequence the trial miscarried.

1. The appellant contends that the prosecution relied upon the appellant's conduct in response to the allegations as evincing a consciousness of guilt. It is submitted that the cross examination of the appellant and the prosecutor's closing address conveyed as much to the jury, and that the trial judge was therefore obliged to direct accordingly.

1. The Crown takes issue with this characterisation of the use of that evidence. It is submitted that the evidence of the appellant's post-offence conduct was relied upon solely for the purposes of submissions to the jury relating to the credibility of the appellant. It is further submitted that the closing address of the appellant's counsel at trial dealt with the matter in the same vein and that, accordingly, the trial judge's directions were appropriate.

1. Given the narrow scope of the issue on the appeal, it is unnecessary to relate the evidence at trial, save for the material that touches directly or indirectly upon the appellant's conduct in the relevant respect.

The Evidence Relating to Post Offence Conduct

1. The complainant's sister, KN, gave evidence of a disclosure by the complainant to her shortly prior to Christmas 2007. The disclosure was repeated by KN to her husband, N, the same night. That same night, KN attempted to call the appellant but was unsuccessful. On Boxing Day, they received a telephone call from the appellant, who spoke to N in the presence of KN. N said to the appellant "we've been given some information about a few days before our wedding that involved [the complainant]. Can you tell me more?" The appellant replied "I'm travelling back from Sydney. I can't talk right now. I'll call you when I've returned to Moree ".

1. In the days following that conversation, KN sent a number of text messages to the appellant. It was not until January that the appellant replied by text in the following terms, namely, "you won't believe me anyhow. You will only believe what your sister tells you". There was no further contact from the appellant.

1. The complainant's brother-in-law, N, gave evidence of a text message sent to the appellant to the following effect "I want to know both sides of the story." N also gave evidence that he attempted to contact the appellant by telephoning the appellant's then flatmate. N's evidence was otherwise consistent with that given by his wife set out above.

1. In cross-examination, N acknowledged that when he spoke to the appellant about the allegation he was "fairly well upset about it" and that he would "like to have known his side of it". N said that he had tried to ring the appellant a number of times. The cross examination of N was critical of N's failure to make personal contact with the appellant and discuss the allegation calmly with him.

1. The appellant gave evidence under cross examination that he became aware of the allegation at Christmas time in 2007 when he received a phone call from KN. The appellant said that he had a conversation with N wherein he said "I don't know what you're talking about" and then his phone dropped out of service. The appellant agreed that he did not make any further attempt to contact N and speak to him about the allegation. He acknowledged receiving text messages which were unpleasant and that he was "shocked". The appellant said he responded to one text message in late January saying "I'm not explaining, I've got nothing to explain to you, you're going to believe your sister anyway." The appellant agreed that he had made no further attempt to contact N and talk to him about the allegation.

1. The appellant said that he was concerned that the allegations were being repeated within the community and that his ex-wife had become aware of them. The appellant said he had talked to a friend and to his sister and that the mutual decision was that he should not respond to the allegations or do anything about the damage to his reputation.

1. The critical passage in the cross-examination relied upon by the appellant for the purposes of this appeal is :-

Q. Your name is being muddied, your reputation is being tarnished by the allegations being out there in the community. Isn't that the case?

A. It probably is the case, yes.

Q. Well didn't you feel that way?

A. Well I didn't feel, what's the best way to put it, well I definitely wasn't happy about it, no.

Q. But you didn't see fit to do anything about it?

A. No I never.

Q. And your long-standing friendship, your great mateship with N, you were prepared just to let go?

A. Yes I was.

Q. Sir, these allegations were false in your mind?

A. These allegations are false, yes.

Q. Allegations of sexual assault by a 14-year-old against you are a terrible thing?

A. Yes.

Q. Especially if they are false?

A. Yes.

Q. You would want to protest your innocence long and loud, would you not?

A. People close to me that knew, they believed me. That was the main thing to me. If people who don't know me that well didn't believe me then there is nothing I can do about that.

Q. Could have picked up the phone, rung N and said hold the bus, none of this, stop spreading this around it's false?

A. I could have picked up the phone and done that, yes but in my mind it wouldn't have solved their problem.

Q. Time goes on and then the police come and see you ultimately?

A. Yes.

Q. And in all that time up until when the police come and see you and I think that was around September, was it not September 2008?

A. Around that, July, September, something like that, yes.

Q. You hadn't made contact with N, KN or even [the complainant]?

A. No.

Q. You did nothing about it sir because the allegations are true?

A. The allegations are false.

1. In re-examination, the appellant said that he had spoken to his ex-partner on 27 December about the allegations and had denied them to her. The appellant also explained that his sister, to whom he spoke shortly after the allegations came to his attention, was a police woman and that her advice not to do anything further was considered trustworthy by him. The appellant said that he was "a bit stunned by it all" and that he accepted the advice that he received.

1. Thus, at the close of the evidence in the trial, there was a relatively minor factual dispute concerning what the appellant had said, if anything, to N when he was first informed of the allegation. According to the Crown witnesses, the appellant said nothing responsive beyond telling them that he would ring them back. According to the appellant, he arguably denied the allegation before the phone dropped out.

1. The Crown Prosecutor appears to have put this factual dispute to one side, since it is reasonably clear from the cross examination set out above that the Crown Prosecutor was inviting the jury to conclude that the appellant's failure to "protest his innocence long and loud" and make personal contact with N and KN to discuss the allegation was because he knew he was guilty of the offence. The resolution of the factual dispute concerning what the appellant had said when he was first contacted by N was not integral to the jury's acceptance of the Crown's suggestion.

The Submissions by Counsel at Trial.

1. The Crown Prosecutor's closing address commenced with a concession that proof of the Crown case rested upon the complainant's evidence. It was acknowledged that there was an absence of support for her evidence, but for an account of some injury and vaginal bleeding, which was witnessed by a guest at the wedding who assisted the complainant to dress.

1. The Crown's comment in relation to the evidence of the appellant set out above at [15] appears in the following context :-

You will assess all the witnesses. Mr McKey is a witness the same as those that were called by the Crown. He didn't have to subject himself to giving evidence in the witness box, but as soon as he does he just becomes another witness and you make your assessment of him the same as you make your assessment of the others that were called by the Crown.

...........................................................................

You would have, I would suggest to you, real doubts about the evidence that's been given to you by the accused. I suggest to you, as I suggested to him, he has tailored his evidence of that night to fit around what has been said by the others. You might find it very difficult to accept going back five years plus that a man can remember going to the toilet, washing face and hands.

Do you accept, faced with terrible false allegations coming from a long-standing very close mate, that Mr McKey didn't seek some further information, didn't seek to tell them that it was false, stop saying anything about it, it just didn't happen? You might think he'd be protesting his innocence from the rooftops. No, he doesn't. It's a matter for you, if you would reject the evidence of the accused entirely.

1. The appellant's counsel at trial relied upon the concession by the Crown Prosecutor that the only evidence of the offences came from the complainant. Later in his address to the jury, counsel said :-

My learned friend says that Mr McKey didn't seek to tell them it was false, that is KN and N. Now the first conversation Mr McKey says, "I don't know what you're talking about." The first conversation. Virtually the first thing out, "I don't know what you're talking. What are you talking about?" What more does my learned friend want from Mr McKey, in circumstances where his best man says he was abusing him down the telephone with this abhorrent act and then sending accusatory text messages?

He seeks solace from his sister, a police officer, on his advice, you've heard the evidence, "well just leave it. Something is going on here with this family. Just leave it." A rational explanation you might think of Mr McKey, whoever is close to me I discuss it with them. What else can I do? What else could he do? Sue them for defamation? Well really.

The Directions from the Judge

1. Early in the summing up, the trial judge told the jury that the Crown case depended entirely upon the evidence of the complainant. When dealing with the evidence of complaint, the trial judge restricted the use of that evidence to an assessment by the jury of the consistency of the complainant's conduct. The jury was told that the evidence of complaint could not be used by them as to the truth of the allegation that the appellant sexually assaulted the complainant. Once again, the jury were told that the only evidence that was capable of proving the allegation was the evidence of the complainant of the events in April 2004.

1. The judge then summarised the arguments of counsel. After dealing with the Crown's submissions in relation to the credibility of the complainant, and the competing submissions of the appellant's counsel at trial, the judge went on to say :-

The Crown said, on the other hand, having described her as a witness whom you would accept as honest and reliable, the accused when he gave evidence was somebody whom you would not accept, because he has got this unnatural memory of going to the toilet, as distinct from saying "I would have gone to the toilet", he claims to actually remember going on this occasion and remember the details of washing his face and hands and so on. He has had, the Crown suggests, a long time, 18 months or more following becoming aware of these allegations, to look at the statements made by various people, and the Crown suggested to him in cross-examination, and to you in address, that the accused had in fact tailored his statement of what occurred, or rather, what did not occur on this night, to take account of the details which he knew would be forthcoming from everybody else, all the other witnesses.

Of course, there is a lot of other evidence upon which counsel raised some arguments, about for example, the contact between N and KN on the one hand and the accused on the other immediately or soon after the revelation made by the complainant in December 2007. The accused gave evidence that he had said "what are you talking about" and the phone dropped out. The evidence of N and KN was that he had said "I can't talk to you now, I'll ring you when I get home" and hung up.

Now, this is not something which the Crown - this is an indication of something which the Crown does not have to prove beyond reasonable doubt, but you may find it, depending on how you reason these things out, significant to work out whether you accept the evidence that it was not a flat denial and that he thereafter made himself unavailable to exchange. The accused said that there was only the one call and thereafter there were text messages. I understood N to say that thereafter, he could not get hold of the accused by phone, although he tried, and KN to say that he would not answer his phone. Well now, whether that is an appropriate piece of terminology to use when talking about text messages or not is a matter for you.

These are matters that you will bear in mind, depending on what weight you give the arguments of counsel about the reactions of the accused and so on. Mr Taylor says he did what you would expect him to do, denied it, and thereafter, on the advice of his sister, sought to let matters lie. The Crown suggested to you that this is not the sort of conduct that you would expect of somebody who was being vilified, defamed around Moree and so on, you would expect him at least to go on to establish further contact with his best mate and say "that's not how it happened at all" or words to that effect.

But those are arguments that you will evaluate yourself.

1. These directions referred to the factual dispute concerning what was said at the time of the first phone call but otherwise left it to the jury to determine whether they accepted that, whatever was said by the appellant, his conduct constituted less than a "flat denial" of the offence. The arguments of counsel, as to the inferences that the jury would draw from the appellant's admitted failure to contact N in order to comprehensively deny the offence, were encapsulated for the jury's evaluation.

Consciousness of Guilt and Implied Admissions

1. The law has always recognized the legitimacy of reliance upon post-offence conduct in support of a prosecution case. The most common example of such post-offence conduct is lies told by an accused ( Edwards v The Queen (1993) 178 CLR 193), although an accused's silence in response to an allegation which he/she might reasonably be expected to deny ( R v MMJ [2006] VSCA 226), the destruction of evidence ( R v Nguyen [2001] VSCA 1) and attempts to influence the evidence of witnesses ( R v Smit & Ors . [2004] NSWCCA 409) all fall into the same category. Similarly,

Flight from justice, and its analogous conduct, have always been deemed indicative of a consciousness of guilt. ...... It is universally conceded today that the fact of an accused's flight, escape from custody, resistance to arrest, concealment, assumption of a false name, and related conduct, are admissible as evidence of consciousness of guilt, and thus of guilt itself :..

Wigmore on Evidence, Vol 2, (1979) par 276(4)

1. In R v Heyde (1990) 20 NSWLR 234, this Court reviewed the circumstances under which it was permissible to leave a lie told by an accused as corroboration of a witness' evidence. Allowing for the fact that corroboration no longer exists as a requirement in criminal proceedings, the following passage at 242 from the judgment of Clarke JA (Gleeson CJ and Studdert J agreeing) is apposite :-

[Support for] the evidence of a witness for the prosecution may be provided in a number of ways. It may be found in the admissions of an accused. It may also be found in inferences drawn from certain aspects of the conduct of the accused. That conduct may extend to, or include, a lie .... A lie could, however, only provide [support] if, broadly speaking, it was capable of supporting an inference that the evidence of the relevant prosecution witness on a material point was probably correct. This, it has been held, will occur only where it is open to the jury to infer that the lie was told because of a fear of the truth or a consciousness of guilt.

1. Later, at 244, Clarke JA observed that, provided that it is open to the jury to rationally draw an inference that consciousness of guilt motivated the relevant conduct on the part of the accused, the jury should be directed that such an inference cannot be drawn unless other reasonable explanations for the conduct inconsistent with a consciousness of guilt have been excluded.

1. The Dictionary to the Evidence Act 1995 provides that an admission is :-

a previous representation that is:

(a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding), and

(b) adverse to the person's interest in the outcome of the proceeding.

" previous representation " means a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced.

" representation " includes:

(a) ......................... or

(b) a representation to be inferred from conduct,

1. This definition simply reflects the common law position, namely that guilt may be inferred from an accused's conduct. The thrust of the cross examination in the instant case was that the jury could infer from the appellant's conduct (not robustly denying the allegation to N) that he effectively admitted the offence.

1. As I have already noted, the appellant focused upon the effect on the jury of the Crown Prosecutor's cross examination and emphasized that, regardless of the attempt to present the appellant's conduct as a matter going to his credibility, the substance of the submission invited consciousness of guilt reasoning. The appellant did not argue that it was not open to the jury to draw the relevant inference.

1. The Crown maintained that there was no such reliance and that the determining factor was the acceptance by the Crown Prosecutor in his closing address that proof of the Crown case depended entirely upon the complainant. In other words, the Crown did not ultimately seek to use the evidence of the appellant's conduct in support of the complainant's evidence.

1. The majority judgment in Zoneff v R [2000] HCA 28 ; 200 CLR 234 makes it clear that the critical issue in determining the necessity for and scope of a direction to the jury concerning their use of implied admissions is the risk of misunderstanding on their part :-

16 There may be cases in which the risk of misunderstanding on the part of a jury as to the use to which they may put lies might be such that a judge should give an Edwards -type direction notwithstanding that the prosecutor has not put that a lie has been told out of consciousness of guilt. As a general rule, however, an Edwards -type direction should only be given if the prosecution contends that a lie is evidence of guilt, in the sense that it was told because, in the language of Deane, Dawson and Gaudron JJ in Edwards , "the accused knew that the truth ... would implicate him in [ the commission of ] the offence" and if, in fact, the lie in question is capable of bearing that character. (The words in italics are ours and, for the sake of clarity, should be included in the statement of principle.)

17 Moreover, if there is a risk of confusion or doubt as to the way in which the prosecution puts its case, the trial judge should inquire of the prosecution whether it contends that lies may constitute evidence of consciousness of guilt and, if so, he or she should require identification of the lie or lies in issue and the basis on which they are said to be capable of implicating the accused in the commission of the offence charged.

1. To similar effect is the following observation by Kirby J at [71] :-

The first problem is that it cannot ultimately depend upon the intention or subjective purpose of the prosecutor as to whether or not a judicial direction to a jury about that subject of lies must be given. The criterion must be the way the jury might use the evidence not the subjective purpose of the prosecutor in eliciting the evidence or relying upon it. That is why, in Edwards , the majority judges referred to "where a lie is relied upon to prove guilt". That expression must be given meaning according to objective standards. There is a lot of loose talk in the cases about the prosecutor's intention. I regard that as irrelevant except so far as it helps to identify what the jury might have made of the questioning or evidence.

1. What was conveyed to the jury on the subject of the appellant's conduct in response to the allegation ? Contrary to the Crown's submissions, I am not persuaded that the answer to that question resides solely in the respective closing addresses. If the cross examination of the appellant gave rise to the risk of consciousness of guilt reasoning in the minds of the jury, it was incumbent on the judge to seek clarification from the Crown Prosecutor and to direct the jury accordingly.

1. The Crown Prosecutor's attempt in his closing address to the jury to characterise the appellant's conduct as somehow relevant to his credibility did not remove the sting inherent in the cross examination. The italicised passage at [20] above repeated the theme that the appellant's conduct in not "protesting his innocence from the rooftops" was consistent with a guilty mind.

1. That submission had very little to do with the appellant's credibility as a witness in the trial. It was not suggested by the Crown Prosecutor that the appellant's account in his evidence of his response to the allegation was materially different from the account given by other witnesses. The submission was framed in terms of his failure to "protest his innocence from the rooftops" as a relevant factor in the jury's assessment of his veracity as a witness. The jury were invited to reject his evidence in the trial (including his denial of the offence in his evidence) partly because his conduct was inconsistent with that of an innocent man. When the submission is properly analysed, it is not far removed from reliance upon consciousness of guilt.

1. This case is to be contrasted with Elmasri v R [2010] NSWCCA 11. In that decision, R A Hulme J (McClellan CJ at CL and Price J agreeing) was at pains to point out that an "unprompted denial" by the appellant was plainly dealt with as a credibility factor, given that the Crown Prosecutor in his closing address had submitted that the explanation by the appellant at trial for the "unprompted denial", namely the erroneous omission in the notes by the police of a question that elicited that response, was not credible in the face of the appellant's correction of another aspect of the police interview on an earlier occasion : Elmasri [51] and [54] - [55].

1. Moreover, the peripheral significance of the "unprompted denial" in the prosecution case in Elmasri persuaded the Court that there was no risk that the jury would have adopted consciousness of guilt reasoning. The prosecution case in Elmasri consisted of a number of pieces of circumstantial evidence, excluding the "unprompted denial", in addition to the direct evidence of a co-offender.

1. In the instant case, the appellant's conduct assumed considerable significance in the trial, particularly when the trial was conducted, and the jury were instructed, on the basis that the only evidence of the offence came from the complainant. It was a "word against word" case, which rendered it more likely that the jury would cast around for evidence tending to support the allegation. The Crown Prosecutor's cross examination, and to a marginally lesser extent, his closing address presented the appellant's post offence conduct as potentially supportive of the prosecution case.

1. In so far as consciousness of guilt reasoning involves the drawing of an inference from the relevant conduct in favour of guilt, the trial judge in Elmasri gave a number of directions concerning the drawing of inferences, and, at one point, went so far as to direct the jury that an inference unfavourable to the accused required satisfaction beyond reasonable doubt. No direction on the drawing of inferences was given in the appellant's trial.

1. In the circumstances of this case, I have come to the view that it was necessary for the trial judge to give a direction to the jury which would guard against the unjustified drawing of an inference adverse to the appellant. The cross examination of the appellant unequivocally suggested that the appellant's conduct constituted an implied admission. At the very least, the jury should have been directed that, before they could infer that the appellant behaved as he did because he was conscious of his guilt of the offence, they were required to examine that inference to determine whether it was a reasonable and justifiable one and they were required to exclude any alternative inference that was inconsistent with guilt. The most obvious alternative inference that called for exclusion was that the appellant acted in accordance with his sister's advice, namely, to say nothing about the allegation to anyone, including N, his wife and the complainant.

1. If one were to go further and consider adapting the recommended directions relating to the use of lies as consciousness of guilt, discussed by the majority in Edwards , the tenuous nature of the proposition sought to be established by the Crown Prosecutor in cross examination is more apparent. According to Edwards (at 210 - 211), the conduct should be precisely identified, together with the circumstances and events that are said to indicate that the conduct constitutes an implied admission. The conduct was not precisely identified ; was it the appellant's failure to make further enquiry of N and/or his failure to protest his innocence, beyond the constructive denial in the text message to N ? What were the circumstances and events that indicated that the appellant's conduct constituted an implied admission ? How did the appellant's conduct in failing to categorically deny the offence to N, in particular, reveal his knowledge of the offence or some aspect of it ?

1. The appellant has succeeded in respect of grounds 1 and 2. It is not necessary to deal with ground 3 in the light of my conclusions on the first two grounds.

1. Notwithstanding the application of Rule 4, the appeal should be allowed and the conviction quashed. There is a reasonable possibility that, in the absence of appropriate directions, the jury's verdict was affected by its use of the appellant's conduct in order to support the complainant's allegation. The appellant has served the non parole period of the sentence imposed in respect of this offence. There is therefore no utility in ordering a new trial.

1. I propose the following orders :-

(1)   Appeal against conviction allowed.

(2)   The conviction is quashed and the sentence imposed on 8 October 2009 is set aside.

(3)   Enter a verdict of acquittal.

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Decision last updated: 27 February 2012