Nestorov v The Queen
[2002] WASCA 356
•20 DECEMBER 2002
NESTOROV -v- THE QUEEN [2002] WASCA 356
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 356 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:74/2002 | 5 DECEMBER 2002 | |
| Coram: | PARKER J HASLUCK J OLSSON AUJ | 20/12/02 | |
| 24 | Judgment Part: | 1 of 1 | |
| Result: | Applications dismissed | ||
| A | |||
| PDF Version |
| Parties: | KOLE NESTOROV THE QUEEN |
Catchwords: | Criminal law Evidence Lies by accused Distinction between credibility and probative lies Circumstances in which Edwards direction should be given Directions to jury held to be adequate Sentencing Conspiracy to cultivate cannabis Imprisonment for 5 years and 5 months with eligibility for parole held to be appropriate |
Legislation: | Misuse of Drugs Act 1981, s 7, s 33 |
Case References: | Broadhurst v The Queen [1964] AC 441 Dick v The Queen [2001] WASCA 152 Edwards v The Queen (1993) 178 CLR 193 Nestorov v The Queen [1999] WASCA 303 Osland v The Queen (1998) 197 CLR 316 R v Renzella [1997] 2 VR 88 R v Zheng (1995) 83 A Crim R 572 Speed v The Queen [2001] WASCA 125 Zoneff v The Queen (2000) 200 CLR 234 Bell v The Queen [2001] WASCA 40 Eastwood [1998] VSCA 42 Evans v The Queen (1985) 38 SASR 344 Giowkos v The Queen, unreported; CCA SCt of WA; Library No 960470; 11 July 1996 Nestorov v The Queen, unreported; CCA SCt of WA; Library No 960469; 11 July 1996 R v Miceli (1997) 94 A Crim R 327 R v Pallister [2002] WASCA 68 R v Schwabegger [1998] 4 VR 649 R v Taafe (1998) 102 A Crim R 472 R v Todd [1982] 2 NSWLR 517 R v Walton [2001] QCA 309 Tsagaris v The Queen, unreported; CCA SCt of WA; Library No 980721A; 14 December 1998 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : NESTOROV -v- THE QUEEN [2002] WASCA 356 CORAM : PARKER J
- HASLUCK J
OLSSON AUJ
- CCA 76 of 2002
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Evidence - Lies by accused - Distinction between credibility and probative lies - Circumstances in which Edwards direction should be given - Directions to jury held to be adequate - Sentencing - Conspiracy to cultivate cannabis - Imprisonment for 5 years and 5 months with eligibility for parole held to be appropriate
Legislation:
Misuse of Drugs Act 1981, s 7, s 33
(Page 2)
Result:
Applications dismissed
Category: A
Representation:
Counsel:
Applicant : Mr D Grace QC & Mr M L Tudori
Respondent : Mr B Fiannaca
Solicitors:
Applicant : Mr M L Tudori
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Broadhurst v The Queen [1964] AC 441
Dick v The Queen [2001] WASCA 152
Edwards v The Queen (1993) 178 CLR 193
Nestorov v The Queen [1999] WASCA 303
Osland v The Queen (1998) 197 CLR 316
R v Renzella [1997] 2 VR 88
R v Zheng (1995) 83 A Crim R 572
Speed v The Queen [2001] WASCA 125
Zoneff v The Queen (2000) 200 CLR 234
Case(s) also cited:
Bell v The Queen [2001] WASCA 40
Eastwood [1998] VSCA 42
Evans v The Queen (1985) 38 SASR 344
Giowkos v The Queen, unreported; CCA SCt of WA; Library No 960470; 11 July 1996
Nestorov v The Queen, unreported; CCA SCt of WA; Library No 960469; 11 July 1996
(Page 3)
R v Miceli (1997) 94 A Crim R 327
R v Pallister [2002] WASCA 68
R v Schwabegger [1998] 4 VR 649
R v Taafe (1998) 102 A Crim R 472
R v Todd [1982] 2 NSWLR 517
R v Walton [2001] QCA 309
Tsagaris v The Queen, unreported; CCA SCt of WA; Library No 980721A; 14 December 1998
(Page 4)
1 PARKER J: I have had the advantage of reading in draft the reasons for decision published by Hasluck J. I am in complete agreement with those reasons. For those reasons I agree that the applicant should not be granted an extension of time within which to appeal against conviction or for leave to appeal against sentence.
2 HASLUCK J: The applicant, Kole Nestorov, seeks to appeal against a conviction after trial before a jury in the District Court. The applicant also seeks leave to appeal against sentence.
3 The position is that neither the appeal against conviction nor the application for leave to appeal against sentence were filed within time. In each case, an application for an extension of time has been made. It follows that, in strict analysis, the Court must deal with the applications for an extension of time before proceeding to the issues raised by the proposed appeals. Counsel on both sides recognised, however, that the merits of the proposed appeals must be considered, for the Court will not usually grant an extension of time unless it is satisfied that there has been a miscarriage of justice.
4 It will be convenient to deal first with the proposed appeal against conviction. The principal issue raised by the proposed appeal is whether the learned trial Judge erred in law by giving the jury certain directions with respect to lies allegedly told by the applicant.
Background
5 The proposed appeal arises out of a charge that between 1 January 1993 and 4 March 1994 at Gidgegannup and elsewhere the applicant conspired with Trajkos Giowkos to cultivate a quantity of prohibited plants, namely, cannabis plants, with intent to sell or supply cannabis to another contrary to s 7 and s 33 of the Misuse of Drugs Act 1981.
6 I note in passing that the applicant's alleged co-conspirator was his father, Trajkos Giowkos, who pleaded guilty to cultivating cannabis at a property owned by the applicant at Gidgegannup. Mr Giowkos also pleaded guilty to a charge of cultivating cannabis at Balcatta. He was sentenced to a term of imprisonment for 9 years on both charges.
7 The applicant was first tried for the offence of conspiracy to cultivate cannabis with intent to sell and supply on 7 September 1998. He was convicted on 9 September 1998 and sentenced to 8 years' imprisonment.
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8 On 23 November 1999, the Court of Criminal Appeal quashed the applicant's conviction and ordered a retrial on the basis that a direction given by the learned trial Judge of the kind described by the High Court in Edwards v The Queen (1993) 178 CLR 193 was inadequate. The ruling of the Court of Criminal Appeal is set out in Nestorov v The Queen [1999] WASCA 303. I will return to the reasoning of the Court of Criminal Appeal at a later stage.
9 The applicant was retried before the District Court on 18 February 2002 and convicted of the offence of conspiracy to cultivate cannabis with intent to sell and supply. On 21 February 2002, the applicant was sentenced to 5 years and 5 months' imprisonment and was made eligible for parole. The present appeal arises out of this conviction and the related sentence.
10 The applicant's amended grounds of appeal against the conviction dated 19 August 2002 are expressed in these terms:
"1. The Learned Trial Judge erred in law by directing the jury that the alleged lies told by the Applicant could give rise to a finding by the jury that the Applicant had lied as a result of a consciousness of guilt, or otherwise, thereby giving rise to a substantial miscarriage of justice.
Particulars
- (a) No occasion for the giving of an "Edwards" direction arose in the circumstances of this case.
(b) The alleged lies (either taken singularly or collectively), told by the Applicant could not be relied upon by the prosecution as evidencing a consciousness of guilt.
(c) The alleged lies told by the Applicant directly formed part of his defence to the crime (see Zoneff v R (2000) 200 CLR 234 at [16], [17], [20], [23])."
11 The Crown sought to establish beyond reasonable doubt that the applicant had conspired with his natural father, Trajkos Giowkos, to cultivate a quantity of cannabis with intent to sell or supply it to another
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- upon a property acquired by the applicant. The offence was alleged to have occurred between 1 January 1993 and 4 March 1994 at Gidgegannup.
12 Counsel for the Crown opened the case to the jury upon the basis that the case against the applicant was a "circumstantial case". He went on to indicate to the jury that they should look at all the circumstances and decide "whether the crown has proved beyond a reasonable doubt that the accused man was part of that agreement or conspiracy".
13 The prosecutor proceeded to call various witnesses including police officers who gave evidence about an interview with the applicant on video. The applicant gave evidence at the trial and, in doing so, confirmed that in 1993 he was living with his parents at their property in Balcatta and was working at Masters Dairy.
14 The evidence adduced by the prosecution indicated that the applicant and his father inspected a property known as Lot 22 McKnoe Drive, Gidgegannup in early 1993. The property was about 27 acres in size. The applicant's father made initial contact with the vendor but it was the applicant who in effect financed the purchase.
15 The applicant said in evidence that the property was purchased by way of an investment and that he hoped to place a tenant on it for a time before in due course moving in to live on the property himself. The prosecution case was that from the outset it had been the intention of the applicant and his father to cultivate cannabis on the subject property.
16 It was alleged by the Crown that after the purchase of the property the applicant and his father were involved in locating and inspecting a tractor for use on the property. The applicant and his father were both together when the tractor was purchased in July 1993 and it was the applicant who paid the price of $8,500.
17 The Crown contended that a water pump was taken from the family home in Balcatta to the subject property in Gidgegannup. Arrangements were made for a trench to be dug so that electricity could be connected to the property. The applicant was allegedly present when a trench digging machine which he had hired was used to dig a trench from a shed at the rear of the property to a power box at the front of the property. It was said that in June 1993 the applicant entered a contract in the sum of about $14,500 to purchase a transportable home to be placed on the subject property.
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18 The transportable home was allegedly delivered to the property in November 1993. There was evidence suggesting that the applicant was present on the site when the transportable home was inspected by a Shire building surveyor.
19 The Crown relied upon evidence that a white utility registered in the applicant's name was seen to be coming and going from the property on various occasions. People who saw this vehicle believed that it had two occupants and the Crown sought to rely upon an inference that the persons in question were the applicant and his father.
20 The Crown alleged that the applicant purchased and supplied his father with an air rifle for use on the subject property. This air rifle was subsequently found in the custody of the father at the property.
21 The Crown case was that between late 1993 and 4 March 1994, being the date on which police attended the property, neighbours in the area noticed two men moving about on the property from time to time. Sprinklers on the property were in regular operation. Eventually, the police obtained a search warrant.
22 According to the evidence of Senior Constable Tapsell, when he and his partner Senior Constable Beveridge attended at the property to execute the search warrant, they were greeted at the door of the transportable home by the applicant's father. There was no-one else on the property. The applicant's father handed over an air rifle and took the police officers to an area north of the transportable house where a large amount of cannabis was growing.
23 The prosecution adduced evidence that in all there were about 1,700 plants growing on the property of which most plants were ready for harvest and some had been uprooted. The applicant's father was arrested and the Drug Squad subsequently arrived to remove the crop.
24 The applicant participated in a video interview with investigating officers on 4 March 1994 on which occasion he denied any knowledge of or involvement in a conspiracy of the kind alleged. He told investigating officers that the property was being rented by a tenant, C Lovercion, who was paying $150 per week in rent. His father collected the rent. The applicant identified receipts from a book found at his house, as being receipts for rent paid by the tenant.
25 The applicant also stated in the course of the interview that after he had made some improvements to the property, he put an advertisement in
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- the West Australian Newspaper for a tenant. He received a telephone response and he referred the caller to his father. The latter took care of the rental arrangements.
26 I pause to say that in the course of his evidence-in-chief at the trial the applicant gave evidence in support of his stance that the subject property was occupied by a tenant. The transcript includes a number of passages bearing upon this point. When the applicant was asked about the steps taken to find a tenant, he said this:
"How did you go about then trying to get a tenant? --- I advertised in The West Australian and I received a call from someone that seemed interested and I put them on to my father.
Just going back to the placement of the advertisement, did you place the advertisement under your name? --- Yes.
Just to confirm, your surname is spelt N-e-s-t-o-r-o-v? --- That's correct.
Did you give a telephone number with the advertisement? --- Yes.
And which telephone number was that? --- Our home number.
At Balcatta? --- Balcatta."
27 The applicant went on to give some further details concerning the tenancy issue. He gave evidence as follows:
"Now, you said something happened after you placed the advertisement into the paper. What was that? ---Sorry?
Yes, you said you placed the advertisement into the paper and something happened after that. What was that? --- I received a phone call from the man who was interested in leasing the property.
What did you do about that? --- I referred him to my father.
Why did you do that? --- I had no time to negotiate or tee up for him to go to the property.
What was your father going to do for you? --- He was going to arrange the leasing of the property.
(Page 9)
- Did your father give you some information about the leasing of the property? --- He asked - he told me that the man was interested and we - I negotiated a price for the rent and the bond.
What was the price? --- The price was $600 bond and $150 per week.
For rent? --- For rent, yes.
Did your father tell you whether a tenancy had been agreed? --- Yes.
Did your father tell you who the tenant was? --- Yes. He was very vague on the name. I remember having a lot of trouble with - with the particular name.
What did he tell you the name was? --- C. Lovercio.
Is that C. Lovercio or Lovercion? --- I asked him again what it was and he - he tried to spell it out and it was C. Lovercion.
Now, after you became aware that the tenancy had been agreed did anything happen in relation to rental and bond money? --- My father was going to - because of the - because I didn't have the time or the energy, my father was going to go up to the property and collect the rent and keep an eye on the property.
As far as you were aware did he do that? --- Yes."
28 It is apparent from the appeal book at pages 93 to 99 that the prosecution adduced evidence from a Luisa York, nee Lovercio, that she used to work with the applicant at Masters Dairy. This witness testified that "Lovercio" was a rare name, there were only three such entries in the current telephone directory, and they were all relatives of the witness. She testified that only one of those entries was a C. Lovercio, and that was the witness' father. She was close to her father and she knew he had never rented a property at Gidgegannup.
29 The Crown also tendered the deposition of Benita Richardson (Marsh) who was an employee of the West Australian Newspaper. She stated that she had checked the newspaper records but could not find any material which suggested that the newspaper had received an
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- advertisement relating to a particular home number in either the name of Giowkos or Nestorov.
30 I note in passing that Crown counsel did not put to the applicant in cross-examination that the applicant had not placed an advertisement in the West Australian Newspaper. Under cross-examination, the applicant maintained that as far as he knew, there was a tenant on the property whose name was Lovercion, although it seemed that the first three receipts were made out to C. Lovercio.
31 It is apparent from the way the trial was run that the prosecution, as foreshadowed in opening, sought to rely upon various matters of circumstantial evidence from which it could be inferred the applicant had entered into an unlawful conspiracy of the kind alleged.
32 The Crown relied upon facts and matters such as the close relationship between the applicant and his father, the applicant's purchase of an isolated property and various accessories including tractor and transportable home, the applicant's involvement in the provision of power, the use of a pump obtained from the family home. The size and scale of the crop was said to be far too large for the applicant's father to manage alone. A white utility owned by the applicant was seen at the property. An older man and a younger one had been seen together on the property engaged in activity. There were a number of other facts and matters bearing upon the applicant's supposed knowledge of his father's activities.
33 This brings me to the particular issue raised by the appeal.
The Edwards Issue
34 In the course of his opening address to the jury counsel for the Crown had informed the jury that the applicant was interviewed on video. In the course of the interview, the applicant maintained that he did not know that his father was growing cannabis on the property. He admitted though that he had bought the land, the transportable home and the tractor and he knew that his father was there.
35 Counsel said further that a rent receipt book was found and the accused said that he made out four receipts for a bond and rent to a C. Lovercio who was the tenant of the property. The applicant said that he had bought the property at Gidgegannup as an investment and intended to lease it. He had put an advertisement in the West Australian and received a response from a man who became the tenant.
(Page 11)
36 Counsel for the Crown indicated in opening that on the Crown case there was no tenant at all and that C. Lovercio was fictitious. Counsel for the Crown then said:
"In short, the crown says that the - maintains that this matter of C. Lovercio being a tenant at Gidgegannup is simply a fiction and that the accused man lied when he said, firstly, that he'd placed a "to let" advertisement in the West Australian and, secondly, when he maintained that the receipts for C. Lovercio were for C. Lovercio as a tenant. The crown says the accused man knew well that there was no such tenant and no tenant at all in the property at Gidgegannup.
If you found there to be a lie such as that, before you could take that into account against the accused there are certain conditions which are required to be fulfilled before you could use that evidence. Even if you found that those were lies, before you could use that as evidence against the accused, it's very important to say there are certain conditions which apply before you could ever use that as evidence against the accused and her Honour will give you detailed directions as to that, but that is part of the crown case."
37 It follows from my description of the trial that the Crown adduced evidence in support of its contention that the supposed tenant called Lovercio (or Lovercion) was fictitious. It was clear from the prosecutor's opening address and from the way in which the trial was run that the Crown intended to strengthen its case by reliance upon lies allegedly told by the applicant. It must also be remembered that issues of this kind had been raised at the first trial and had been the subject of a ruling by the Court of Criminal Appeal.
38 Against this background, it is not surprising that there was some discussion concerning the Edwards issue before her Honour the learned trial Judge proceeded to address the jury. It appears from page 148 of the appeal book that, at the conclusion of her discussion with counsel about the advertisement and the tenant, her Honour observed that the discussion was concerned with "the two lies upon which, as I understand it, the crown rely to demonstrate knowledge, guilty knowledge". Counsel on both sides accepted her appraisal of the situation.
39 In the course of her summing up to the jury her Honour gave directions to the jury concerning the elements of the offence of
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- conspiracy. She reviewed various matters which were relevant to the circumstantial case being advanced by the Crown. She then made these observations:
"In this case the crown alleges that the accused, when interviewed by police, lied about particular matters, namely, that he had placed an advertisement in The West Australian newspaper, which he thought was on a Saturday, to let the property at Gidgegannup. The crown say no such advertisement was ever placed in that newspaper by the accused relevant to the name of Nestorov or Giowkos or there was no giving of his home telephone number as a contact.
The crown also alleged that a further lie by the accused was that a C. Lovercio subsequently leased the property and that a number of receipts in the name of C. Lovercio for rental amounts received from him were, in the crown's submission to you, or suggestion, a fiction in the sense that a C. Lovercio never rented the property, nor paid rent in relation to it. The crown say that the accused well knew this to be the case.
The crown allege that these lies, two lies, were deliberately told by the accused to create an impression that at the relevant time the property had a legitimate rent-paying tenant installed on it. For that reason the crown say the implication was therefore that the accused had purchased the property to let as an investment and during the relevant period the accused could not have had access to the property to be involved in the cultivation of cannabis, nor indeed by implication would he have entered an agreement to do so, the property being a legitimate rental property investment."
(Page 13)
- "First of all it must be a deliberate lie or lies. Secondly, the lie or lies must relate to a material issue. Thirdly, the motive for the lie must be a realisation of guilt and fear of the truth on the part of the accused, because people sometimes lie, for example, in an attempt to bolster up a cause or because they're ashamed or because they want to cover up some disgraceful behaviour from their family or they might wish to protect someone. There's a very wide range of reasons why a person might tell an untruth. Fourthly, the statement or lie must be shown to be a lie by evidence other than by admission, in other words, by the accused admitting it was a lie or lies, and of course in this case Mr Nestorov does not say that at all; he says, no, it was the truth, that he did place an ad in the paper and there was a tenant there, as far as he believed, called Lovercio, who was paying rent."
41 The learned trial Judge went on to emphasize that a lie on its own proves nothing. However, an out of court lie becomes important when there is other evidence in the case, either direct or circumstantial, which is sufficient to sustain a verdict. She added some further observations which, in effect, amounted to an elaboration of what she had already told the jury about the criteria that had to be satisfied before a lie could be regarded as providing evidence probative of guilt.
42 It is apparent from the grounds of appeal in the present case, that the principal issue raised on appeal is whether an occasion for the giving of an Edwardsdirection arose in the circumstances of the present case. Before turning to that issue, it will be useful to look at a number of decided cases bearing upon the circumstances in which an Edwards direction should be given, and the nature of the direction.
Legal Principles
43 In formulating some general observations I will draw principally upon the reasoning of the Privy Council in Broadhurst v The Queen [1964] AC 441; the summary of the Court of Appeal in R v Renzella [1997] 2 VR 88 at 90 - 92; and the reasoning of various members of the High Court in Edwards (supra); Osland v The Queen (1998) 197 CLR 316 and Zoneff v The Queen (2000) 200 CLR 234.
44 The decided cases indicate that there are two main ways in which lies told by an accused can be important at a trial and thus give rise to a need for directions. First, and most commonly, assertions by an accused which
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- are proved to be lies, whether made in evidence or in statements out of court, may be relevant to credibility. They may help the jury to decide whether the evidence for the prosecution should be preferred to an account put forward by the accused. An Edwardsdirection is not necessary in such cases, although it may be necessary to give what has sometimes been called a Broadhurst direction.
45 Second, on some occasions lies are capable of adding something to the Crown case, whether as corroboration or simply as strengthening evidence. Lies within this latter category amount to evidence because they constitute implied admissions. They are thought to constitute such admissions because they are told from a consciousness of guilt.
46 In Zoneff (supra) Kirby J at par 59 affirmed the existence of a distinction between credibility lies and probative lies. He recognised that the distinction will influence the form of direction to be given.
47 This view of the matter is borne out by the ruling of the majority of the High Court in Zoneff (supra). The majority held that where the Crown did not rely upon the answers of an accused to found a submission that he had lied out of a consciousness of guilt, it was unnecessary and undesirable that an Edwards direction be given. They said (at par 20) that such a direction could have the effect of raising an issue on which the parties were not joined, and of highlighting issues of credibility so as to give them an undeserved prominence in the jury's mind to the prejudice of the accused. If there was a doubt as to the way in which the prosecution puts its case, the trial Judge should inquire whether the lies in question were said to constitute evidence of consciousness of guilt.
48 The majority said further that in circumstances in which lies had been attributed to the accused in the course of cross-examination (as in the case before them), it was appropriate for the jury to be warned that they should not follow a process of reasoning to the effect that just because a person is shown to have told a lie about something, that is evidence of guilt.
49 The ruling of the majority in Zoneff (supra) was consistent with the view expressed by the Privy Council in Broadhurst (supra) that there is a natural tendency for a jury to think that if an accused is lying, it must be because he is guilty. Accordingly, it is the duty of the judge to make it clear to the jury that this is not so, and such a direction may be necessary where lies go only to credit. The need for such a warning is to be determined on a case by case basis by applying the general principle that a
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- judge should give any direction that is necessary and practical to avoid a perceptible risk of miscarriage of justice.
50 It follows from what I have said thus far that, in a case where lies go only to credit, it will be a misdirection to tell or suggest to the jury that the lies form part of the Crown's circumstantial case. It follows from Zoneff (supra) that it will also be a misdirection to give an Edwards direction in circumstances where the Crown has not contended, either in cross-examination or in any submission at the trial, that there was any material capable of being regarded as a lie stemming from a consciousness of guilt.
51 However, in circumstances where the Crown invites the jury to use a lie told by the accused as going beyond credit, and as constituting an admission against interest so as to form part of a circumstantial case, or as affording corroboration for the testimony of a witness whose evidence stands in need of a scrutiny warning, an Edwards direction will usually be required.
52 It appears from the judgment of Deane, Dawson and Gaudron JJ in Edwards (supra) at 210 that the lie and its character as an admission against interest do not have to be proved beyond reasonable doubt unless the lie is the only evidence against the accused or an indispensable link in a chain of evidence necessary to prove guilt.
53 Put shortly, then, an Edwards direction is usually essential if the Crown invites the jury to treat lies by the accused as part of a circumstantial case, as corroboration, as confirmatory or supportive material or simply as evincing a consciousness of guilt.
54 The reasoning of Deane , Dawson and Gaudron JJ in Edwards (supra) indicates that before a lie told to the police in an out of court statement can be used against the accused as an implied admission of guilt certain requirements must be satisfied. First, the jury must be satisfied that the lie was deliberate, that is to say, that the accused made a false statement, knowing it was false. Second, the lie must relate to a material issue concerning the offence in question. Third, the lie must spring from a realisation of guilt and a fear of the truth. Fourth, the lie must clearly be shown to be a lie by evidence other than the evidence to be corroborated.
55 It will be apparent from my earlier description of the trial in the present case that the learned trial Judge endeavoured to convey these four considerations to the jury. However, as she later acknowledged in discussion with counsel in the jury's absence, the fourth point was not
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- clearly conveyed. She inadvertently suggested to the jury that the lie must be shown to be a lie by evidence other than by an admission of the accused. However, I doubt that anything turns on this for present purposes. Defence counsel did not apply for any redirection at the time. The matter was not raised in the grounds of appeal or relied upon at the hearing of the appeal.
56 The reasoning of Deane, Dawson and Gaudron JJ is underpinned by a key passage in Edwards (supra) at 210. It emerges from this passage that a lie can constitute an admission against interest only if 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, the lie should be precisely identified, as should the circumstances and events that are said to indicate that it constitutes an admission against interest. Moreover, the jury should be instructed that there may be reasons for the telling of a lie apart from the realisation of guilt. If they accept that there is an extraneous explanation for the lie, they cannot regard it as an admission. It should be recognised 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.
57 Further, if the telling of a lie by an accused is relied upon, not merely to strengthen the prosecution case, but as corroboration of some other evidence, the untruthfulness of the relevant statement must be established otherwise than through the evidence of the witness whose evidence is to be corroborated. In other words, if a witness required to be corroborated is believed in preference to the accused and this alone establishes the lie on the part of the accused, reliance upon the lie for corroboration would amount to the witness corroborating himself. That is a contradiction in terms. A lie about the extent of the accused's observation or recollection of certain events is a matter that goes to his credit and nothing else.
58 This latter requirement can be illustrated by the ruling of the Court of Criminal Appeal in R v Zheng (1995) 83 A Crim R 572. The jury was directed that it was essential to the Crown case that they accept that it was the applicant who, on two separate occasions in a car park, received a plastic bag containing heroin from another person. The only evidence of those facts, which were denied by the applicant, was that of various police officers who observed the applicant's conduct in the car park. In an unsworn statement, the applicant explained his presence in the car park by saying that he had only been there cleaning cars. The Court of Appeal held that the only logical way in which the jury could have been satisfied
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- that the applicant was lying was if they accepted as true the evidence of the Crown's witnesses who observed his conduct. This process of reasoning was entirely circular.
59 The view approved by the High Court in Edwards (supra) was affirmed by Gaudron and Gummow JJ in Osland (supra). They noted at 333 that the accused had engaged in a series of deceptions to conceal her husband's death and give the impression that he had simply disappeared. The jury was not directed that it might treat her conduct as evidence of guilt. Accordingly, an Edwards direction was not given. Gaudron and Gummow JJ went on to say:
"Where, as here, there is a risk that a jury might treat lies as evidence of guilt, the preferable course is for the trial judge to ascertain precisely what use the prosecution contends may be made of the evidence in question. And if the evidence is to be left to the jury as evidence of guilt, it should be instructed as required by Edwards v The Queen(supra). If not, it should be instructed that the evidence is relevant only to the credit of the accused."
60 Gaudron and Gummow JJ had this to say also at 333:
"So far as is presently relevant, it was held in Edwards that, where a lie is relied on to prove guilt, the trial judge must first identify the lie, and the circumstances and events relied on by the Crown to indicate that it constitutes an admission against interest. Secondly, the jury must be told it may take the lie into account only if satisfied, having regard to those circumstances and events, that the lie reveals the accused's knowledge of the offence charged or an aspect of it. Thirdly, the jury must be told that there may be reasons other than realisation of guilt why the accused told the lie. Fourthly, the jury should then be told that if it accepts the lie was told for a reason other than realisation of guilt, it cannot regard the lie as an admission against interest…"
61 I have already noted that the applicant in the present case was successful in his appeal against his conviction at the first trial. In Nestorov v The Queen (supra) the Court of Criminal Appeal held that the direction given to the jury at the first trial concerning the alleged lies was not sufficient, principally because the direction did not identify the lies
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- with particularity and was not sufficient to explain their materiality. Kennedy J had this to say at par 11:
"Although the High Court in Edwards' case was not purporting to lay down any precise verbal formula to be used in all cases in which lies are relied upon to prove the guilt of an accused, that case provides a valuable and concise statement of the law which should be carefully followed unless, in the particular case, it would not be appropriate to do so. It is certainly essential for a trial Judge to ensure that the four principles summarised by Gaudron and Gummow JJ in Osland's case are included in his or her directions to the jury."
62 It had been made clear to the learned trial Judge in the course of the trial that the Crown intended to rely upon lies allegedly told by the accused concerning the advertisement and the tenancy as evidence of guilt. In the manner allowed for by obiter dicta in Osland (supra) and Zoneff (supra), and with a view to removing any doubt as to whether the prosecution intended to rely upon the lies as an implied admission, the learned trial Judge discussed the matter with counsel before addressing the jury. It seems that, in the absence of any objection, she inferred from the discussion that the Crown did rely upon the alleged lies as evidence demonstrating "guilty knowledge" and assumed that an Edwards direction was necessary. She proceeded to give the direction including reference to the four matters in particular that should be taken into account.
63 It will be apparent from my review of the decided cases that in circumstances where the trial Judge had made inquiry and established that the Crown relied upon the alleged lies as evidence of guilt (in the sense that the lies were told because the accused knew that the truth would implicate him in the commission of the offence) prima facie, the trial Judge was then obliged to give an Edwards direction. However, the applicant contends on appeal that in the circumstances of this case it was not necessary to give such a direction. It is said that such a direction should only be given if the prosecution is clearly relying upon the lies in question as evidence of guilt and if the lies are in fact capable of bearing that character.
64 The applicant contended on appeal that in the circumstances of the present case the alleged lies were not capable of establishing guilty knowledge and that to give an Edwards direction in circumstances where
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- it was not necessary to do so, was prejudicial to the applicant (as indicated in Zoneff (supra)) because it could have the effect of giving undeserved prominence to the lies and of raising an issue on which the parties were not truly joined.
65 It is not enough, the applicant contended that the Crown intends to rely upon the alleged lies as evidence of guilty knowledge. The trial Judge must be satisfied that in the circumstances of the particular case the Crown is in a position to place reliance upon the lies as evidence of guilty knowledge. In this case the lies could not be shown to be lies by evidence other than the evidence to be substantiated, with the result that they did not comply with the reasoning of the High Court in Edwards (supra).
66 Counsel for the applicant suggested that since Zoneff (supra), the reasoning in Edwards (supra) is subject to a modification or gloss whereby the jury should only be given an Edwards direction where the prosecution had made it clear that the Crown intended to rely on the lies as evidence of guilty knowledge and, in the estimation of the trial Judge, the lies were capable of being relied upon to that effect.
67 Counsel for the applicant went on to argue that the only logical way that the jury could have been satisfied beyond reasonable doubt that the applicant was not telling the truth as to his contention that there was a tenant on the property, or that he believed that there was a tenant on the property, was by accepting the rest of the Crown case beyond reasonable doubt. If the jury accepted beyond reasonable doubt the rest of the Crown case, there was nothing further which the Crown had to establish relating to the applicant's conduct. To use the evidence of the so-called lies to determine a consciousness of guilt was untenable, as it involved entirely circular reasoning. Counsel for the applicant relied upon Zheng (supra); Dick v The Queen [2001] WASCA 152; Speed v The Queen [2001] WASCA 125.
68 The applicant's case on appeal was that the jury in the present case ought to have been directed in accordance with the form of warning outlined in Zoneff (supra), at [23] namely:
"You have heard a lot of questions, which attribute lies to the accused. You will make up your own mind about whether he was telling lies and if he was, whether he was doing so deliberately. It is for you to decide what significance those suggested lies have in relation to the issues in the case but I give you this warning: do not follow a process of reasoning to the
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- effect that just because a person is shown to have told a lie about something, that is evidence of guilt."
Conclusion
69 It is apparent from earlier discussion that where, as here, the Crown intends to rely upon lies as evidence of consciousness of guilt, an Edwards direction will usually be given. The question in the present case is whether the lies allegedly told by the applicant were capable of being characterised as probative lies, that is to say, lies amounting to an implied admission because they implicated the applicant and were told from a consciousness of guilt. If, as the applicant contends, they were not of that kind, but simply represented his explanation or account of his actions, then, arguably, as in Zheng (supra), an Edwards direction was not necessary and should not have been given.
70 In my view, the alleged lies could properly be regarded as probative lies. It was open to the jury to conclude from the evidence of the witness Marsh concerning the absence of any record of a newspaper advertisement, and from the evidence of the witness York concerning her father, that a tenancy was not created as alleged. It was not necessary for the jury to have regard to the rest of the evidence to find that the applicant had lied deliberately about those matters. It follows that I am not persuaded that the only logical way in which the jury could be persuaded that the applicant was not telling the truth about the presence of a tenant on the property was by accepting the rest of the Crown case beyond reasonable doubt.
71 It is important to understand that the alleged lies went to one aspect of the case only, namely, the occupation of the premises and the question of whether the applicant had access to and a connection with the cannabis crop. Much of the other evidence relied upon by the Crown in the advancement of its circumstantial case went to the central issue of whether there was an agreement between the applicant and his father sufficient to establish the existence of a conspiracy. The use of the alleged lies as part of the circumstantial case against the applicant did not involve circular reasoning because, unlike the situation in Zheng (supra), there was independent evidence sufficient to establish that lies had been told.
72 Let me recapitulate. The Crown had adduced evidence from the witness Marsh that, contrary to the applicant's assertions no advertisement had been placed in the West Australian newspaper. If the jury was
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- satisfied by the evidence of this witness that no advertisement was placed then it was open to the jury to conclude that the property had not been leased to a caller by the name of Lovercio, for the applicant's assertions were to the effect that the tenancy came into being because of the advertisement.
73 There was some further evidence bearing upon this point, namely, the evidence of the witness York that Lovercio was a comparatively rare name and that her father, Mr C Lovercio, had no connection with a property at Gidgegannup. It was open to the jury to take into account also that the applicant had worked with the witness York and may have taken advantage of his knowledge of her circumstances in using the name Lovercio.
74 It was open to the jury also to give weight to other matters of circumstantial evidence concerning the tenancy issue. For example, there was a close connection between the applicant and his father. There was only one bed in the transportable home. The father was discovered alone in the transportable home when the police arrived. There were no signs that the home had been occupied by a person other than the father.
75 I am therefore of the view that when the time came for the learned trial Judge to review the situation, after her discussion with counsel, and prior to her address to the jury, she was entitled to conclude not only that the prosecution was placing reliance upon the alleged lies as evidence of guilt but also that the lies in question were in fact capable of implicating the applicant in respect of a material issue.
76 It follows from earlier discussion that the circumstances of the present case were not like those in Zoneff (supra) because, in this case, as a consequence of the Judge's inquiry, there was no confusion or doubt as to the way in which the prosecution was putting its case with respect to the lies allegedly told.
77 The learned trial Judge put the position neatly in her summing up: the Crown alleged the lies about the tenant were told deliberately with a view to leaving an impression that the applicant did not have access to the property. This was a material and important issue, but not the sole issue. The implied admission of guilty knowledge by the applicant would strengthen the Crown case in that it formed part of the entire circumstantial case against the applicant.
78 I am therefore of the view that in the circumstances of the present case it was necessary for the learned trial Judge to give an Edwards
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- direction. The direction given by the learned trial Judge was sufficient in that the jury were left in no doubt that a lie does not mean that the applicant is necessarily guilty. The learned trial Judge correctly explained that the lies were only of value by way of support of other evidence which, if accepted, would establish the guilt of the applicant.
79 Her Honour correctly explained that the Crown case was largely circumstantial and that the lies were merely a part of the circumstantial evidence. She mentioned the two lies in the context of her summary of all the circumstantial evidence and gave them no greater weight than the other pieces of circumstantial evidence.
80 I mentioned in earlier discussion that the Court will not usually grant an extension of time unless it is satisfied that there has been a miscarriage of justice. It follows from my reasoning that I am not minded to extend the time in respect of the proposed appeal against conviction. I would dismiss the application.
Appeal Against Sentence
81 The applicant contended in respect of the proposed appeal against sentence that the learned trial Judge erred in failing to take into account, adequately or at all, the significant delay between arrest and sentence, much of which was not attributable in any way to the actions of the applicant.
82 Counsel for the applicant contended that significant delay between commission of an offence and the resolution of criminal proceedings will mitigate the sentence, provided that the delay is not due to any default on the part of the offender. This is said to be so for various reasons, namely, that if the offender has shown evidence of rehabilitation, the Court will sentence him on the basis of how he presents at the time of sentence and not at the time of the offence. Further, the anxiety and uncertainty experienced by a defendant over a long period when his fate is undetermined is punishment in itself.
83 The applicant recognised that the delay in this case was due in part to the earlier successful appeal. However, there had been a significant period of delay between offending and the imposition of sentence punctuated by a period of imprisonment and release upon bail. The applicant had not re-offended and it was therefore submitted that the fact of delay, in combination with his prospects of rehabilitation, should be given substantial mitigating weight. Put shortly, the learned trial Judge
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- had erred by failing to give sufficient weight to the considerable passage of time between offending and imposition of sentence.
84 The learned trial Judge had this to say in the course of imposing sentence:
"…I take the view that an appropriate starting point by way of sentence is 7 years' imprisonment. I then must take into account the 14 and a half months' imprisonment you have previously served as a sentenced prisoner with respect to this offence. There is no argument that you must receive credit for this period in custody.
Furthermore after consideration I accept your counsel's submission that because of the circumstances in which you served that time in custody provision should be made for scaling up that period of time. I have arrived at the view that the 14 and a half months' imprisonment previously served should be scaled up to a period of 19 months' imprisonment.
This period of 1 year and 7 months' imprisonment should then be deducted from the head sentence of 7 years' imprisonment leaving a total term of 5 years and 5 months' imprisonment, which I direct be backdated to and deemed to have commenced from 19 February 2002 when you were convicted and went into custody. Finally I order that you be made eligible for parole in relation to the sentence just imposed."
85 Counsel for the Crown submitted that this was not a case of inordinate delay, and, in any event, the period of time involved was largely referable to the appeal and retrial. It was true that there was no indication that the applicant had engaged in any other unlawful activity during the time in question, but, equally, it was difficult to speak of rehabilitation, actual or notional, when there had been no acknowledgement of guilt or acceptance of responsibility for the criminal conduct in issue.
86 Counsel for the Crown emphasised also that it was important for the sentence imposed to reflect the requirement of general deterrence in regard to the cultivation of cannabis in commercial quantities.
87 I see merit in these submissions. In my view, the learned trial Judge took into account and gave sufficient weight to the time that the applicant had already spent in custody by scaling up the 14 and a half months'
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- imprisonment that the applicant had served to 19 months' imprisonment. The period in question was then deducted from the sentence which her Honour intended to impose.
88 The term of imprisonment arrived at finally was within the range of sentences generally imposed for this kind of offence, having regard to the size and nature of the crop. This does not appear to be a case in which the passage of time warranted any significant mitigation of the sentence. Accordingly, I am not persuaded that there was any error in the sentencing process as to this ground of appeal.
89 A further ground of appeal was that the sentence imposed upon the applicant was manifestly excessive in all the circumstances of the offence and of the applicant. Reference was made to the applicant's lack of prior convictions, good employment record, good general character and family circumstances and to the applicant's lesser role in the offence as compared to his father. Reference was made also to the applicant's progress towards rehabilitation and the punishment already undertaken by the applicant including the service of 14½ months in custody prior to his first appeal succeeding and the shame and humiliation suffered to date.
90 The matters set out in the notice of appeal and relied on at the hearing weighed in favour of the applicant. However, the learned Judge's sentencing remarks suggest that she gave careful consideration to these matters. She properly found that the applicant and his father played roles in the commission of the offence that were of about equal seriousness.
91 It follows from my observations in regard to the first ground of appeal, and these further observations, that, in my view, the sentence imposed upon the applicant was not manifestly excessive. The learned trial Judge imposed an overall sentence that reflected the total criminality of the applicant's offending behaviour, and made appropriate allowance for the need for general deterrence.
92 I would dismiss the application for an extension of time in respect of the proposed appeal against sentence.
93 OLSSON AUJ: I have had the benefit of reading, in draft, the reasons published by Hasluck J. I agree both with those reasons and the conclusions to which he has come. I concur in the orders which he proposes.
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