Narkle v The Queen
[2003] WASCA 233
•3 OCTOBER 2003
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : COURT OF CRIMINAL APPEAL
CITATION: NARKLE -v- THE QUEEN [2003] WASCA 233
CORAM: MURRAY J
STEYTLER J
PARKER J
HEARD: 22 SEPTEMBER 2003
DELIVERED : 22 SEPTEMBER 2003
PUBLISHED : 3 OCTOBER 2003
FILE NO/S: CCA 23 of 2002
BETWEEN: GARY MICHAEL NARKLE
Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Appeal against conviction - Where trial Judge failed to give proper direction as to lies - Turns on own facts
Legislation:
Criminal Code, s 689(1)
Result:
Leave to appeal granted
Appeal allowed
Convictions quashed
Retrial ordered
Category: B
Representation:
Counsel:
Applicant: Mr R W Richardson
Respondent: Mr D Dempster
Solicitors:
Applicant: Gunning Young
Respondent: State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Edwards v The Queen (1993) 178 CLR 193
Case(s) also cited:
Dhanhoa v The Queen (2003) 77 ALJR 1433
Domican v The Queen (1992) 173 CLR 555
Festa v The Queen (2001) 208 CLR 593
Glennon v The Queen (1994) 179 CLR 1
Latham v The Queen [2000] WASCA 57
Leary v The Queen [1975] WAR 133
Liberato v The Queen (1985) 159 CLR 507
Mraz v The Queen (1955) 93 CLR 493
Murray v The Queen (2002) 76 ALJR 899
Osland v The Queen (1998) 197 CLR 316
R v Beserick (1993) 30 NSWLR 510
R v Schmahl [1965] VR 745
Simic v The Queen (1980) 144 CLR 319
Sreckovic v The Queen [1973] WAR 85
Stack v The Queen [2002] WASCA 338
Zoneff v The Queen (2000) 200 CLR 234
JUDGMENT OF THE COURT: The applicant was convicted, after a trial by jury, of one count of deprivation of liberty, three counts of sexual penetration without consent, one count of attempted sexual penetration without consent, three counts of sexual penetration without consent causing bodily harm and one count of indecent assault. He sought leave to appeal against these convictions and, at the hearing of that application, we acceded to it, allowed the appeal, quashed the convictions and ordered a retrial, each of those steps having been taken with the concurrence of the Crown. These are our reasons for doing so.
The offences were said to have been committed during the night of 11 October 1999. There were, at the trial, two competing versions of what took place on that night. The complainant's evidence was that, in the evening, she met the applicant at a telephone box in Armadale. The applicant asked her if she could give him a lift to Thornlie. She told him that although she lived around that area, she was on her way to Roleystone. The applicant thereupon asked her for a lift to Roleystone. She agreed to give him a lift. After arriving in Roleystone she dropped the applicant off at a church near the Roleystone Theatre on Croyden Road, to which she was going in order to attend rehearsals which were to take place there. After getting out of the car, the applicant asked the complainant if she would give him a lift home if she saw him again. She said that she would. On her way home from Roleystone the complainant saw the applicant waiting at a bus stop. Because it was late and she thought that there may be no more buses, she decided to give him a lift to Thornlie. However, the applicant asked her to make a number of detours and she did so. He eventually directed her to Mundaring Weir Road. She drove along that road for a while, until she came to an isolated area. She became nervous and turned back towards Perth. The applicant said that he needed to relieve himself and asked her to pull the car over. She did so and, on her evidence, the applicant then committed the various offences of which he was convicted by the jury.
The applicant's version of events was somewhat different. He said that, after he and the complainant struck up a conversation at or near the telephone box in Armadale, the complainant offered to give him a lift to Langford, where he could obtain some drugs for the two of them to share. However, she said that she had first to go to Roleystone. She drove there together with the applicant. When they arrived in Roleystone, the complainant said that she would drop the applicant off at the church and then pick him up again after rehearsals at the Roleystone Theatre had ended. She dropped him off near the church, where the applicant involved himself in some activity then taking place there. He said that, at one point, he walked to a nearby bus stop in order to see whether or not there were still cars at the Theatre, because he wanted to know whether or not the rehearsals had ended. He said that he did not sit down at the bus stop at any stage and was only there for a minute or two before returning to the church, where the complainant eventually picked him up.
During the course of cross‑examination, it was put to him that no arrangement of the kind described by him had been made and that he had deliberately waited at the bus stop in the hope that the complainant would drive by and see him standing there. It was put to him that another witness, Mrs Maureen Waltersdorf, had seen him there. He disputed that he had waited at the bus stop for the purpose of flagging the complainant down and reiterated his evidence‑in‑chief. It was then put to him that he had been asked, in the course of a preliminary hearing, whether he had waved the complainant down as he stood near the bus stop and that he had answered that he "wasn't waiting at no bus stop". It was also put to him that he had then said, in the course of examination by his own counsel, that he had never left the church. He responded by saying that he had left the church only on the occasion of his brief visit to the bus stop which, he said, was "in the same area". However, the Crown prosecutor suggested to him, in effect, that he had lied on both occasions and that he had tailored his evidence at the trial in order to overcome the evidence of Mrs Waltersdorf. The applicant denied that this was so.
The prosecutor, in his closing address to the jury, referred to this evidence and said that it was a "perfect example" of the applicant manufacturing his evidence around the Crown's case. However, he did not suggest to the jury that they should consider that the applicant's lie had evidenced a consciousness of guilt. Notwithstanding this, the trial Judge, when he came to sum up to the jury, said, after referring to this evidence and after saying that the prosecutor, Mr Urquhart, had contended that the applicant had lied in his earlier evidence to the effect that he had never left the church, that:
"Mr Urquhart submits that you should use that lie against the accused. He submits that it's an indication of his guilt. It would justify an inference against the accused. That's Mr Urquhart's submission. Against that background I should give you this direction and I do so: ordinarily when a witness is proven to have told a lie out of court then that lie effects [sic] his credibility. If you are satisfied that he did lie on an earlier occasion then you will be less inclined to accept his evidence on oath before you, obviously.
However, when it's the accused who is established to have lied then that can strengthen the crown case against the accused provided three conditions are strictly satisfied. The first is that indeed it was a lie. The second is that it was a lie about something which was material; that is, something significantly connected with the issues in the case. And the third is that it was a lie, that is a deliberate falsehood, about a material matter told by the accused because he knew what was being put to him was true and because he was afraid that if he admitted that it was true it would result in him being found guilty as charged.
So if an accused person tells a deliberate falsehood, members of the jury … if you are satisfied beyond reasonable doubt that he told a deliberate lie on an earlier occasion about a material matter and that he must have told the lie because he knew that if he admitted the truth of what was being put to him it would point to his guilt then that would justify the drawing of an inference against him, an inference pointing to his guilt, but only if those three conditions are strictly satisfied.
In relation to the bus stop evidence as I have described it it's important that you take this direction into account."
There is only one ground of appeal which need be considered, being ground 1, by which the applicant contended that the trial Judge erred in giving this direction.
It seems, from the extracted portion of his summing up, that the trial Judge was there endeavouring to give a direction in accordance with what had been said by the High Court Edwards v The Queen (1993) 178 CLR 193. In that case, at 210 ‑ 211, Deane, Dawson and Gaudron JJ said:
"A lie can constitute an admission against interest only if it is concerned with some circumstance or event connected with the offence (i.e. it relates to a material issue) and if it was told by the accused in circumstances in which the explanation for the lie is that he knew that the truth would implicate him in the offence. Thus, in any case where a lie is relied upon to prove guilt, the lie should be precisely identified, as should the circumstances and events that are said to indicate that it constitutes an admission against interest … . And the jury should be instructed that they may take the lie into account only if they are satisfied, having regard to those circumstances and events, that it reveals a knowledge of the offence or some aspect of it … and that it was told because the accused knew that the truth of the matter about which he lied would implicate him in the offence, or, as was said in Reg v Lucas (Ruth), because of 'a realization of guilt and a fear of the truth'.
Moreover, the jury should be instructed that there may be reasons for the telling of a lie apart from the realization of guilt … . A lie may be told out of panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the offence. The jury should be told that, if they accept that a reason of that kind is the explanation for the lie, they cannot regard it as an admission. It should be recognized that there is a risk that, if the jury are invited to consider a lie told by an accused, they will reason that he lied simply because he is guilty unless they are appropriately instructed with respect to these matters. And in many cases where there appears to be a departure from the truth it may not be possible to say that a deliberate lie has been told. The accused may be confused. He may not recollect something which, upon his memory being jolted in cross‑examination, he subsequently does recollect."
In this case the prosecution had not contended, and nor could it contend, that the lie, if it was such, constituted an admission against interest and consequently could be relied upon to prove the applicant's guilt. Rather, it had put up the lie as being relevant only to the credit of the applicant. As counsel for the respondent rightly conceded before us, there was consequently no basis for a direction of the kind discussed in Edwards and the giving of that direction by the trial Judge could only have introduced a measure of confusion, to the detriment of the applicant's case. The alleged lie was not, as the trial Judge put it, "an indication of … [the applicant's] guilt". If it was a lie, it was, as we have said, merely an indication of his lack of credit. Moreover, insofar as the direction purported to accord with that required in a case of the kind discussed in Edwards, it fell some way short of doing so. It did not, and could not, identify to the jury any circumstances and events relied upon to establish the lie as an admission against interest and nor was anything said to the jury to the effect that there might be reasons other than a realisation of guilt why the applicant might have told the lie. Given the Crown's very proper concession that the trial Judge had erred in all of these respects, to the detriment of the applicant's case, and its further concession, which we also thought to be rightly made, that this was a case in which there was no room for the operation of the proviso to s 689(1) of the Criminal Code, we granted the applicant leave to appeal, allowed the appeal, set aside the convictions and ordered a retrial.
1
1