Newhill v The State of Western Australia [No 2]
[2015] WASCA 121
•11 JUNE 2015
NEWHILL -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2015] WASCA 121
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASCA 121 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:129/2014 | 5 FEBRUARY 2015 | |
| Coram: | McLURE P BUSS JA MAZZA JA | 11/06/15 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | Extension of time to appeal granted Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | PAUL WILLIAM NEWHILL THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against conviction Edwards lies Adequacy of trial judge's directions to the jury |
Legislation: | Criminal Code (WA), s 304(1), s 304(2) Firearms Act 1973 (WA), s 19(1), s 19(1ac) |
Case References: | Allami v The State of Western Australia [2013] WASCA 230 Cooper v The Queen [2012] HCA 50; (2012) 87 ALJR 32 Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1 Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193 Hedgeland v The State of Western Australia [2013] WASCA 97 Martinez v The State of Western Australia [2007] WASCA 143; (2007) 172 A Crim R 389 Nestorov v The Queen [1999] WASCA 303 Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316 R v Ciantar [2006] VSCA 263; (2006) 16 VR 26 R v Hartwick [2005] VSCA 264; (2006) 14 VR 125 R v Ibrahim [2003] VSCA 180; (2003) 7 VR 141 R v Konstandopoulos [1998] 4 VR 381 R v Renzella [1997] 2 VR 88 R v Totivan & Dale (Unreported, VSCA, 15 August 1996) |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : NEWHILL -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2015] WASCA 121 CORAM : McLURE P
- BUSS JA
MAZZA JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : STEVENSON DCJ
File No : IND 1380 of 2013
Catchwords:
Criminal law - Appeal against conviction - Edwards lies - Adequacy of trial judge's directions to the jury
Legislation:
Criminal Code (WA), s 304(1), s 304(2)
Firearms Act 1973 (WA), s 19(1), s 19(1ac)
Result:
Extension of time to appeal granted
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr S B Watters
Respondent : Ms A L Forrester
Solicitors:
Appellant : Fort Legal
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Allami v The State of Western Australia [2013] WASCA 230
Cooper v The Queen [2012] HCA 50; (2012) 87 ALJR 32
Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1
Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193
Hedgeland v The State of Western Australia [2013] WASCA 97
Martinez v The State of Western Australia [2007] WASCA 143; (2007) 172 A Crim R 389
Nestorov v The Queen [1999] WASCA 303
Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316
R v Ciantar [2006] VSCA 263; (2006) 16 VR 26
R v Hartwick [2005] VSCA 264; (2006) 14 VR 125
R v Ibrahim [2003] VSCA 180; (2003) 7 VR 141
R v Konstandopoulos [1998] 4 VR 381
R v Renzella [1997] 2 VR 88
R v Totivan & Dale (Unreported, VSCA, 15 August 1996)
1 McLURE P: I agree with Buss JA.
2 BUSS JA: The appellant has applied for an extension of time to appeal against conviction.
3 He was charged on indictment with three counts.
4 Count 1 alleged that on 14 June 2012, at Seville Grove, the appellant, with intent to harm, did an act as a result of which bodily harm was caused to Russell James Pilgrim, contrary to s 304(2) of the Criminal Code (WA) (the Code).
5 Count 2 alleged that, in the alternative to count 1, on 14 June 2012, at Seville Grove, the appellant unlawfully did an act as a result of which bodily harm was caused to Mr Pilgrim, contrary to s 304(1) of the Code.
6 Count 3 alleged that, on the same date and at the same place, the appellant was in possession of a firearm, namely a shotgun, while not being the holder of a licence or permit under the Firearms Act 1973 (WA) entitling him to do so, and that the firearm had been altered from the design or characteristics of its original manufacture, contrary to s 19(1) read with s 19(1ac) of the Firearms Act.
7 The appellant pleaded not guilty to counts 1 and 2 and guilty to count 3.
8 On 12 May 2014, after a trial in the District Court before Stevenson DCJ and a jury, the appellant was convicted on count 2 and acquitted on count 1.
The application for an extension of time
9 The last day for appealing against conviction was 3 June 2014.
10 The appellant did not file his appeal notice until 1 July 2014.
11 The application for an extension of time is supported by an affidavit of the appellant's solicitor sworn 30 June 2014.
12 On 3 August 2014, Mazza JA referred the application for an extension of time to the hearing of the appeal.
13 The appellant's delay is reasonably short and has been adequately explained. The State has not suffered any relevant prejudice. In the circumstances, I would grant an extension of time.
The facts and circumstances of the offending
14 The facts and circumstances of the offending, which were either not in contest or were found by the trial judge in his sentencing remarks, are as follows.
15 On the evening of 14 June 2012, Michael Grueter telephoned the appellant. The appellant agreed, at Mr Grueter's request, to convey Mr Grueter in the appellant's vehicle to a place where Mr Grueter would complete the manufacture of methylamphetamine. The appellant knew that this was Mr Grueter's intention. The appellant drove to Mr Grueter's residence. When he arrived Mr Grueter and Emma Graham, who at that time was living with Mr Grueter, were present. Carlene Grueter and Scott Teller were also at the house.
16 During the incident in question, the appellant, Mr Grueter and Ms Graham were in the main bedroom at Mr Grueter's residence and Ms Grueter and Mr Teller were at the rear of the premises.
17 Earlier on 14 June 2012, the appellant's sister, Donna Newhill, had been drinking at her residence with Mr Pilgrim, who was her partner, and David Burnett.
18 During the evening of 14 June 2012, Ms Newhill became agitated after being told that the appellant had been using her expired driver's licence to obtain prescription medication from pharmacists for the purpose of manufacturing methylamphetamine.
19 Ms Newhill, Mr Pilgrim and Mr Burnett saw the appellant's vehicle which was parked at the front of Mr Grueter's residence.
20 Ms Newhill, Mr Pilgrim and Mr Burnett knocked on the front door of Mr Grueter's residence. The door was not opened. Mr Pilgrim kicked the door, removed the flywire security screen and gained entry to the residence.
21 A television monitor in the main bedroom at Mr Grueter's residence was connected to CCTV cameras at the front of the house. This enabled the appellant, Mr Grueter and Ms Graham to see that Ms Newhill, Mr Pilgrim and Mr Burnett had entered the house and the manner of their entry.
22 The appellant had been consuming methylamphetamine for about three days. During that time he had not slept.
23 When Ms Newhill, Mr Pilgrim and Mr Burnett entered Mr Grueter's residence, the appellant, Mr Grueter and Ms Graham were extracting pseudoephedrine from Sudafed tablets with the intention of using that substance later in the manufacture of methylamphetamine.
24 A confrontation between the two groups occurred in the main bedroom.
25 Prior to the offending, the appellant knew that Mr Grueter had a shotgun which he kept in the main bedroom. When the other group entered Mr Grueter's residence, the appellant took possession of the shotgun. He loaded and cocked it.
26 The first person to enter the main bedroom was Ms Newhill. She was in front of the appellant. He waved the shotgun in her direction.
27 Mr Pilgrim and Mr Burnett then entered the main bedroom. Mr Pilgrim stood next to Ms Newhill, and Mr Burnett was behind them.
28 When Ms Newhill, Mr Pilgrim and Mr Burnett entered the main bedroom there was screaming and shouting. A very heated situation developed quickly.
29 Mr Pilgrim moved towards the appellant. The appellant waved the shotgun at Mr Pilgrim and Ms Newhill.
30 At all times, prior to the discharge of the shotgun, the distance between Mr Pilgrim and the appellant was about 2 m - 3 m.
31 The appellant pulled the trigger of the shotgun when he was in close proximity to Mr Pilgrim. Some of the pellets hit Mr Pilgrim's left shoulder. The pellets passed through his shoulder and struck a window. The injury required the attendance of an ambulance and subsequent medical treatment.
32 The trial judge rejected the appellant's contention that he merely intended to strike Mr Pilgrim and found, consistently with the jury's verdict, that the appellant intended to fire the shotgun in Mr Pilgrim's direction.
33 After pulling the trigger, the appellant disassembled the shotgun into three components. He disposed of the discharged cartridge. It was never found. The appellant placed the disassembled parts of the shotgun in the roof space of Mr Grueter's residence. He gained access to the roof space through a manhole outside the main bedroom.
34 After the incident, the appellant participated in a video-recorded interview with the police. He told the police a version of events which included that Mr Pilgrim had been armed with the shotgun and had been waving it around, and that the shotgun had discharged while the appellant was attempting to wrestle it from Mr Pilgrim's grasp.
35 After the conclusion of this video-recorded interview, the appellant decided that his version of events was unlikely to be accepted. He requested a second interview.
36 At the second video-recorded interview with the police the appellant admitted that his earlier version was false. He then gave another version of events which was also false in some respects.
The appellant's case at trial
37 The appellant's case at trial was that the discharge of the shotgun involved an unwilled act on his part. He also relied on the defence of accident.
38 The appellant gave sworn evidence. He contended that during the incident in the main bedroom at Mr Grueter's residence, he and Mr Pilgrim struggled with each other for possession of the shotgun and, during the struggle, the shotgun discharged. The appellant said he did not intend to discharge the shotgun.
The ground of appeal
39 The sole ground of appeal alleges that the trial judge failed adequately to direct the jury 'as to Edwards lies relied on by the State' (Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193).
40 The particulars of the alleged error read:
1.1 His Honour failed to direct the jury there may be a reason, other than out of a consciousness of guilt, for the [appellant] to tell the lies relied upon by the State;
1.2 The 'fourth lie' relied upon by the State as an 'Edwards lie' was not a lie, but was merely the appellant confirming in his second electronic record of interview ('EROI') that a matter he put forward in his first EROI was a lie.
41 On 3 August 2014, Mazza JA granted leave to appeal on this ground.
The State's case at trial with respect to lies
42 On 15 June 2012, commencing at 5.44 am (that is, in the morning following the incident in question), the appellant participated in a video-recorded interview with the police (the first interview).
43 The State's case at trial was that during the first interview the appellant made false statements that were lies. The prosecutor relied on three of the false statements as Edwards lies.
44 The alleged Edwards lies were that:
(a) Mr Pilgrim had the shotgun at the beginning of the incident and he swung it around in the area;
(b) the appellant attempted to snatch the shotgun from Mr Pilgrim; and
(c) the shotgun discharged while the appellant was wrestling with Mr Pilgrim over possession of the shotgun and after the appellant had managed to grasp it.
45 The first interview concluded at 7.10 am.
46 A little later on the morning of 15 June 2012, commencing at 8.30 am, the appellant participated in another video-recorded interview with the police (the second interview). During the second interview the appellant gave a different version of events. In particular, the appellant admitted that he (and not Mr Pilgrim) had the shotgun at the beginning of the incident.
47 At trial, the prosecutor contended that the appellant had told other lies during the first interview but those lies went only to the appellant's credit. The credibility lies, and the directions given by the trial judge in relation to them, are not impugned in the appeal.
The appellant's explanation during the second interview for the lies told in the first interview
48 During the second interview the appellant gave an explanation for the lies he told in the first interview in relation to who had the shotgun at the beginning of the incident.
49 The relevant passage in the transcript of the second interview reads:
Q. All right so you've indicated … you've had a think about it since we turned the video off last and you … want to talk to us.
A. Yep.
Q. All right … what do you want to tell us?
A. Well, um, most of it was true but the, the gun, I knew the gun was there but the gun isn't mine. Um, but I did have it in my hand. Russell [Pilgrim] didn't bring it there. Um, someone chucked the gun in the bedroom when they started fucking coming through the door and I was panicking and like I don't know I just fucking - I don't know I just - they jumped at me and I was telling them to fuck off out the house and then Russell [Pilgrim] just kept trying to grab it off me and shit and I was - I just panicked that much that it fucking went off in my hand and, and I - but the gun isn't mine and I do have like 10 more bullets at home for it that Mick [Grueter] didn't want to keep in his house.
Q. Okay.
A. Yeah I, I know youse, youse know what goes on at that house and that but I didn't want to, want to say anything. I don't want to be the person that yeah fucking dobs everybody in and shit but - - -
Q. Yep, all right (VROI 4).
The appellant's explanations in his sworn evidence at trial for the lies he told
50 The appellant said, in his evidence-in-chief at the trial, that he told the police a 'different story' in the first interview because he was 'just scared', he 'didn't want to get anybody into trouble' and he 'didn't want to get Mick [Grueter] in any more trouble' (ts 427 - 428).
51 The appellant's explanations, in cross-examination, were these:
(a) The appellant said he lied to the police on two occasions about never having used a firearm previously because he 'wasn't really thinking that clear' and it is 'not that easy just to clear your head' after a home invasion (ts 444). A little later, he added that at the time he was 'pretty heavily into drugs' and he was 'just trying to not get anybody else into trouble' (ts 446).
(b) The appellant said that during the first interview he 'didn't want anybody to get caught or in trouble for the gun, pretty much' (ts 456).
(c) The appellant said he lied about who had the shotgun at the beginning of the incident because he 'wasn't thinking straight', he had been 'awake for three days', having used methylamphetamine heavily, and he 'wasn't really thinking too clearly' (ts 461).
(d) The appellant said that at the time of the interviews he had 'just been through a pretty terrifying experience' and he 'wasn't sure what [he] was talking about half the time' (ts 464 - 465).
(e) The appellant said he told 'a couple of little lies' during the second interview because '[Mr Grueter] was worried about going to gaol, and everyone was worried about going to gaol, so [the appellant] didn't want to get anybody else in any trouble' (ts 471).
52 The appellant gave these explanations in re-examination:
(a) The appellant said he did not tell the police that Mr Grueter had given him some shotgun cartridges because he 'didn't want [Mr Grueter] to get in any more trouble' (ts 477).
(b) The appellant said he did not tell the truth during the first interview because he 'didn't want … anyone else to get into trouble for having a gun' (ts 477).
(c) The appellant said in substance that 'things' were 'not really' any clearer in his mind between the first interview and the second interview (ts 477). He was 'still terrified' (ts 477).
The prosecutor's closing address
53 The prosecutor made the following submissions in his closing address about the false statements relied upon by the State as Edwards lies:
[A]t 5.44 am, on Friday, 15 June 2012, about four hours after he was brought out of the house, [the appellant] took part in an interview with police. And the State says that there are three critical lies that he told in that first interview. Firstly, that Russell Pilgrim was the one who had the gun to start with and that [Mr Pilgrim] was swinging it around in the air during the incident. Secondly, that he, [the appellant], was the person who was trying to snatch the gun off [Mr Pilgrim], rather than the other way round. And, thirdly, that the gun discharged during a wrestle with [Mr Pilgrim] over the gun, after he himself had managed to get hold of it. The State says that those particular lies are deliberate. They're relevant to the case. They're material and they were surely told by [the appellant] with an awareness of his own wrongdoing, or, in other words, they were told with a guilty mind …
Next, [the appellant] took part in a second interview at 8.30 am. There's about an hour and 20 minute gap between interviews and he requested an officer when going through some forensic procedures to take part in the second interview and, of course, three different versions of events had been put to him at the end of that first interview. Now, some of the lies that he told in that second interview, firstly, he admitted that some of what he told police in the first interview was untrue, specifically he was the person who had the gun first and not [Mr Pilgrim]. That proves that his initial explanation was false (ts 2 - 3).
Defence counsel's closing address
54 Defence counsel made submissions in his closing address in relation to the appellant's lies, as follows:
It's important, ladies and gentlemen, that you analyse what evidence there is to suggest that [the appellant] is a compulsive liar. The only evidence that you have before you, of course, is the evidence in relation to this matter.
[The appellant] admits that he told lies. He was asked why and really, it makes sense why he told lies. He had been through a very frightening experience. His first interview was just before 6 am in the morning. He was affected by drugs. He says he didn't want to get into trouble. He also said he didn't want to get other people into trouble.
It's probably fair to say that we've all, from time-to-time, been in a situation where we've told a lie or two. We've embellished a story, we've made it sound worse or made it sound a little bit better than it really is. Unfortunately, none of us have been in a situation like this.
It's fair to say I submit, ladies and gentlemen, that if someone is involved in the drug culture, they're going to come into contact with the police and the courts at some time. I also refer to the language used which might even be considered offensive, but the language used, the swearing, that offensive language, seems to be quite natural to these people. It's therefore quite possible, I suggest, that telling lies when facing questions in relation to someone being shot would also be quite natural. Not telling the whole truth or leaving out little bits of information may be normal for these sort of people.
It's without question that in relation to this offence [the appellant] told lies, but were they a series of separate, individual lies or were they a continuation of the first lie? And were they so significant that you can't trust anything that [the appellant] says?
My client's first comments … to the police - and I refer your Honour to page 7 of the transcript when he said: He was the one swinging the gun around at the start and I was just trying to defend myself and grabbed hold of it. Now my client has since stated that the reason he said that Russell Pilgrim had the gun and was swinging it around was because he didn't want to get into any trouble. He also didn't want to get the owner of the house, his former friend, Mick Grueter, into trouble by stating that the gun came from someone in the room. A few seconds later in the interview, he says: They had a gun, a sword. Then he goes on to talk about Dave, the person that some of the witnesses call Deviate. Referring your Honour to page 14 of the transcript, my client says, quoting what he said: And the next minute, they got into the room and yeah, I don't know where the gun come from. It's not mine. Then he says and I quote: And [Mr Pilgrim] was pissed as a maggot and he climbed up on the bed and I was on the other side. The only thing I had originally was a sword and I - I was worried about actually hitting him with it. And then the gun came out and yeah, I just panicked and I tried to snatch it from him.
So you can see, ladies and gentlemen, that his original version is not far removed from the version he's given you in this trial, ladies and gentlemen. He's merely watered down any indication that might cause Mick Grueter or himself to get into trouble. You might conclude that he thought that if he admitted the gun came from somewhere in the room and he knew about it, he would be in more trouble.
In reality, ladies and gentlemen, those are not the issues that you are to decide. Where the gun came from is not really the issue of concern to you. You can look at what he says and perhaps form an opinion of him that will assist in working out if he's telling the truth, if he's a truthful witness or if he's a compulsive liar or perhaps he's someone from the wrong side of society who's doing what many people would do when their back is against the wall. They don't tell the whole truth. They change it just a bit here and there. Really, ladies and gentlemen, we cannot say that he is a compulsive liar. His lies are not about the substantial issues (ts 22 - 24). (emphasis added)
55 Later, defence counsel summarised the appellant's case on count 2:
If a person pulls the trigger of a gun deliberately even if there is no intent to harm or endanger, if a person consciously pulls the trigger, lets say, for example, as a warning shot in a crowded bedroom, it is indeed likely that someone is going to be in danger or harmed. And on that basis my client would be found guilty.
But the pulling of the trigger has to be a willed action. If it was, as we say it was, an unwilled act brought about [by] the struggle over the gun, if it was something that [my] client didn't consciously do, that the gun discharged as a result of the struggle, then the State have again not proven their case beyond reasonable doubt. The missing link, ladies and gentlemen, the hole can only be filled we suggest by accepting what my client says regarding the tug of war that took place. We say that was what actually happened (ts 39).
The trial judge's summing up including his directions in relation to the Edwards lies
56 The trial judge noted, in his summing up, the State's contention that the jury should reject the appellant's evidence for a number of reasons, including that the appellant had told deliberate lies to the police because he had a guilty mind (ts 539 - 540). His Honour added that the State alleged that the appellant had told a number of other lies to the police which the State relied upon to discredit the appellant (ts 540).
57 His Honour summarised the appellant's case. In particular, his Honour told the jury:
[The appellant] says that on a consideration of the evidence of the four civilian witnesses, that something is missing and that for one reason or another individually and collectively they are not telling the truth about what happened in the bedroom by reason of the fact that none of them gave evidence of any contact by the complainant with the sawn off shotgun which they said was, at all material times, in the possession of [the appellant] before it was discharged.
[The appellant] says that there was a struggle between him and the complainant over the shotgun in the bedroom. Having originally armed himself with the Samurai sword, he then put it down and saw the gun on the bed and went for the gun. [The appellant] says that on a proper consideration of the whole of the evidence, the State has not proved beyond reasonable doubt count 1 or the alternative count 2.
[The appellant] says that he has always maintained, in his various interviews, that the gun discharged during a struggle with the complainant and that he did not pull the trigger deliberately.
[The appellant] has admitted in his evidence to you in the courtroom that a number of the things he said to the police officers in the course of their investigations in response to their questions were lies but maintains that the essential thrust of what he was saying and was prepared to say in the circumstances was that there was a struggle and that the shotgun discharged as a result of an unwilled act on his part.
[The appellant] says he had no intent to cause harm to the complainant when the shotgun discharged. For the purpose of count 1 and in relation to count 2, as I've said, he says he had no intent to harm the complainant and that, in any event, the result of the discharge of the shotgun which caused the injury to the complainant was, in itself, an accident. So [the appellant] says that he should be acquitted of count 1 and the alternative offence of count 2 for those reasons in brief and summary (ts 543). (emphasis added)
58 The trial judge then summarised the evidence of each of the witnesses including the appellant's evidence.
59 His Honour gave the following directions about the Edwards lies:
The fact that a person has told a lie may be a factor in your assessment of the credibility of that person. It is, as I have said, a matter for you to consider. You may wish to take account of that in your deliberations. But do not follow a process of reasoning to the effect that just because a person is shown to have told a lie about something, that it is evidence of guilt or dishonesty in respect of the rest of their testimony. The fact that a person told a lie is not evidence that the person is guilty of the crime, except for those lies which I will identify in a moment that the State relies upon as implied admissions of guilt by [the appellant].
Those lies are these: in respect of the first interview, the State says that [the appellant] deliberately lied with a guilty mind, that the complainant had the gun to start with, and was swinging it around in the air, that he was trying to snatch the gun off the complainant, and that the gun discharged during a wrestle with the complainant after he had managed to get hold of it.
Those lies the State says you can use over and above the issue of credibility on the basis that the State says they were told with a guilty mind - or, by [the appellant] with a consciousness of guilt.
[The appellant] of course said that when he told those lies at the time of his first record of interview, he was terrified, and not thinking straight.
With respect to each of those three identified lies, and also the lie in the second record of interview that the State relies upon in this way, that is that [the appellant] admitted that he had lied in the first record of interview, including that he had the gun first, you must be satisfied about four things before you could draw an implication of guilt from those lies.
Firstly, you must ask yourself whether the lie was deliberate. It must have been a deliberate lie in order to be capable of supporting the State's case in this way. So saying something that is not true by mistake or inadvertence can't obviously be evidence of guilt.
The second thing is the alleged lie must relate to a circumstance or event connected with the offence. The telling of the lie must be explicable only on the basis that the truth would implicate [the appellant] with the offence with which he has been charged.
Third, the motive for the lie must have been a realisation of guilt, and a fear of the truth. That is, it was told out [of] a consciousness of guilt. That is, [the appellant] knew the truth would implicate him in the offence.
The fourth requirement is, in order to use a lie as evidence of guilt in the way contended for by the State, is that the statement which is alleged to constitute the lie must be clearly shown to be a deliberate lie by [the appellant's] own admission, or by other evidence. In this case, you have [the appellant's] own admission that he told these lies to the police at the first opportunity for him to explain what had happened. Members of the jury, it is only if you are satisfied of these four things beyond reasonable doubt that you could use these lies told by [the appellant] to support the State's case as an implied admission of guilt.
Those directions apply to the identified lies that I mentioned at the outset (ts 555 - 556). (emphasis added)
60 Defence counsel did not request his Honour to give a redirection or an additional direction in relation to the Edwards lies.
The appellant's written submissions
61 As to particular 1.1 of the ground of appeal, counsel for the appellant's written submissions argued that the trial judge failed to direct the jury that 'there may be other reasons why [the] appellant lied besides the realisation of a consciousness of guilt'; for example, 'to bolster a weak defence or to protect someone else'. According to counsel for the appellant, absent that direction 'the jury would have … attributed the appellant's lies to a realisation of guilt and used that [conclusion] in an adverse fashion when assessing [the appellant's] credibility regarding the evidence he gave at trial'.
62 As to particular 1.2 of the ground of appeal, counsel for the appellant's written submissions argued that 'it was duplicitous to leave to the jury, as his Honour did, that the statement in [the second interview] was a fourth and further lie'. According to counsel for the appellant, the fact that the appellant accepted in the second interview that he had lied in the first interview 'does not, in itself, constitute a lie, certainly not one capable of [being an] Edwards lie'. It was argued that the trial judge should not have permitted the alleged fourth lie to be left to the jury as an Edwards lie. It was 'merely a lie, if at all, that went to the appellant's credit'.
The applicable legal principles
63 Evidence which suggests a consciousness of guilt is admissible as an implied admission against interest. If the State relies on such evidence in a criminal trial it is open to the accused to offer some explanation, consistent with innocence, which may nullify its force. Various categories of evidence suggesting a consciousness of guilt have been recognised in the case law. See Cooper v The Queen [2012] HCA 50; (2012) 87 ALJR 32 [86] - [87] (Heydon J).
64 In the present case, the implied admissions against interest constituted by the alleged Edwards lies were not the only evidence against the appellant and were not an indispensable link in a chain of evidence necessary to prove his guilt. Accordingly, it was unnecessary for the lies (and their character as admissions) to be proved beyond reasonable doubt. See Edwards (210) (Deane, Dawson & Gaudron JJ).
65 Also, in the present case, the alleged implied admissions against interest were not relied upon as corroboration of a witness's evidence as distinct from merely strengthening the State's case. See Edwards (211).
66 In Edwards, the High Court distinguished between lies told by an accused which affect only his or her credit and lies told by an accused that are evidence because they constitute implied admissions against interest. Lies will constitute implied admissions if they are told out of a consciousness of guilt; that is, the accused told the lies because of a realisation of guilt and a fear of the truth.
67 A lie told by an accused will not be evidence of his or her guilt unless:
(a) the lie was deliberate;
(b) the lie relates to a material issue at the trial and reveals a knowledge by the accused of the offence in question or some aspect of it;
(c) the lie was told out of a consciousness of guilt; that is, the accused knew the truth would implicate him or her in the offence; and
(d) the statement which is alleged to constitute the lie is shown clearly to be a deliberate lie by the accused's admission or by other evidence.
See Edwards (209 - 211).
68 Ultimately, these preconditions to a lie being evidence of the accused's guilt raise questions of fact to be determined by the jury.
69 An Edwards direction is ordinarily essential if the State relies on a lie told by the accused as evidence of his or her guilt. The rationale for giving an Edwards direction is the avoidance of a perceptible risk of a miscarriage of justice if the jury were to misuse the lie so as to make a finding of guilt by impermissible reasoning. There is no precise verbal formula for the direction. A trial judge should tailor the direction to the circumstances of the case. See R v Konstandopoulos [1998] 4 VR 381, 388 (Callaway JA, Winneke P & Kenny JA agreeing); Nestorov v The Queen [1999] WASCA 303 [11] (Kennedy J, Ipp J agreeing).
70 If an Edwards direction is required, the direction must ordinarily encompass the following:
(a) the lie must be precisely identified;
(b) the jury must be told that the lie will not be evidence against the accused unless the lie was deliberate;
(c) the jury must be reminded that there are many reasons why people tell lies, apart from the realisation of guilt;
(d) the jury must be told that it cannot use the lie as evidence against the accused if it accepts an explanation for the lie that is consistent with innocence;
(e) the jury must be told that the lie will not be evidence against the accused unless the lie was told out of a consciousness of guilt (that is, the accused knew that the truth would implicate him or her in the offence) and the lie reveals knowledge of the offence charged or some aspect of it; and
(f) the facts, events and circumstances relied on by the State to indicate that the lie constitutes an admission against interest must be precisely identified.
See Edwards (209 - 211); Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316 [42] fn (83) (Gaudron & Gummow JJ); R v Hartwick [2005] VSCA 264; (2006) 14 VR 125 [94], [113] (Charles, Chernov & Nettle JJA); R v Ciantar [2006] VSCA 263; (2006) 16 VR 26 [81] - [87] (Warren CJ, Chernov, Nettle, Neave & Redlich JJA); Martinez v The State of Western Australia [2007] WASCA 143; (2007) 172 A Crim R 389 [275] - [285] (Martin CJ, Steytler P & Miller JA); Hedgeland v The State of Western Australia [2013] WASCA 97 [86] (Buss JA, Martin CJ agreeing); Allami v The State of Western Australia [2013] WASCA 230 [78] (Buss JA, Hall J agreeing).
71 An imperfect Edwards direction will not automatically result in the quashing of a conviction. In Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1, McHugh and Gummow JJ said:
[I]t is not enough to establish that a miscarriage of justice has occurred by showing that it would have been better if the trial judge had given an appropriate direction concerning the effect of lies or that there is a possibility that the jury may have reasoned that the accused was guilty because he had lied to the police. To succeed in the appeal, Dhanhoa must establish that it is a reasonable possibility that the failure to direct the jury 'may have affected the verdict' (Simic v The Queen (1980) 144 CLR 319 at 332) [60]. (original emphasis)
- See also R v Totivan & Dale (Unreported, VSCA, 15 August 1996) at 12 - 13 (Callaway JA, Phillips CJ & Smith AJA agreeing); R v Renzella [1997] 2 VR 88, 92 (Winneke P, Charles & Callaway JJA); R vIbrahim [2003] VSCA 180; (2003) 7 VR 141 [54] - [56].
The merits of the appeal
72 There is no merit in the appellant's complaint in particular 1.1 of the ground of appeal that the trial judge failed to direct the jury that there may be a reason, other than consciousness of guilt, why the appellant told the Edwards lies relied upon by the State.
73 The appellant's case at trial on lies generally is apparent from defence counsel's closing address. In particular, defence counsel said:
(a) the appellant admitted that he had told lies;
(b) the appellant's explanation for telling the lies was that '[he] had been through a very frightening experience', 'he didn't want to get into trouble' and 'he didn't want to get other people into trouble'; and
(c) the appellant's explanation for why he told the lies '[made] sense' (ts 22).
74 The trial judge referred to the appellant's lies during the first interview on several occasions in his summing up. Some of those lies were relied upon by the State as implied admissions against interest and others were relied upon merely as relevant to the appellant's credit.
75 His Honour said, in the course of giving the Edwards direction, that the appellant had given evidence that 'when he told [the Edwards] lies at the time of his first record of interview, he was terrified, and not thinking straight' (ts 555).
76 Also, the trial judge stressed, in directing that the Edwards lies must have been deliberate, that 'saying something that is not true by mistake or inadvertence can't obviously be evidence of guilt' (ts 555). The reference to saying something that is not true 'by mistake or inadvertence' reinforced his Honour's reference to the appellant's evidence that he told lies during the first interview because he was 'terrified' and 'not thinking straight'.
77 Accordingly, the trial judge directed the jury that, on the appellant's evidence, there were other explanations for the Edwards lies that were inconsistent with the State's contention that those lies were told because of a realisation of guilt and a fear of the truth.
78 It is true that his Honour did not refer to the appellant's evidence that he told lies because he did not want to 'get into trouble' or to 'get other people into trouble'. However, that part of the appellant's evidence was inconsistent with his other evidence that he told lies because he was 'terrified' and 'not thinking straight'. If his Honour had referred to this inconsistent explanation in his summing up it would not have advanced, and it may well have disadvantaged, the defence case. In any event, it is unclear from the transcript whether the appellant's evidence that he lied because he did not want to 'get into trouble' or to 'get other people into trouble' related to the Edwards lies or the credibility lies or both. It is significant, in this context, that defence counsel did not request his Honour to give a redirection or a further direction on the point (or, indeed, on any other aspect of his Honour's summing up) (ts 558).
79 Counsel for the appellant's submission that the trial judge was in error, in failing to direct the jury that 'there may be other reasons why [the] appellant lied besides the realisation of a consciousness of guilt'; for example, 'to bolster a weak defence', is without merit. His Honour's directions were tailored to the facts and circumstances of the case. The appellant gave, in his evidence, other reasons than a consciousness of guilt for the Edwards lies. Those reasons did not include 'to bolster a weak defence'. It would have been inappropriate, in the circumstances, for his Honour to suggest other or different exculpatory reasons for the telling of the Edwards lies. A generic warning about exculpatory reasons would not have been appropriate because the appellant had gone into the witness box and given evidence as to why he had lied.
80 I am satisfied that there is no reasonable possibility that the jury may have misused the appellant's lies so as to make a finding of guilt by impermissible reasoning. Further, even if (contrary to my opinion) his Honour should, in the circumstances, have given the jury more extensive and detailed instructions as to why, on the defence case, the appellant told lies, the omission was more than compensated for by his Honour's erroneous and, from the appellant's viewpoint, very favourable direction that the State was bound to prove each component of the Edwards direction beyond reasonable doubt before the jury could use the Edwards lies as implied admissions against interest. This direction was erroneous because the Edwards lies were not the only evidence against the appellant and were not an indispensable link in a chain of evidence necessary to prove his guilt.
81 In any event, there is no reasonable possibility that the appellant's complaints about the trial judge's Edwards direction may have affected the verdict of guilty on count 2.
82 The appellant's complaint in particular 1.2 of the ground of appeal is that the 'fourth lie' relied upon by the State as an Edwards lie was not a lie 'but was merely the appellant confirming in [the second interview] that a matter he put forward in [the first interview] was a lie'.
83 At the hearing of the appeal, counsel for the appellant accepted that the prosecutor relied on only three (not four) Edwards lies (appeal ts 4 - 6).
84 Counsel then clarified that his complaint in particular 1.2 of the ground of appeal related to the following passage in his Honour's summing up:
With respect to each of those three identified lies, and also the lie in the second record of interview that the State relies upon in this way, that is that [the appellant] admitted that he had lied in the first record of interview, including that he had the gun first, you must be satisfied about four things before you could draw an implication of guilt from those lies (ts 555).
85 Counsel for the appellant submitted that, while the prosecutor did not rely upon a lie in the second interview as an Edwards lie, 'it was very much clear from his Honour's directions that his Honour seemed to have wrapped that up as a fourth lie, and that's the point that we seek to make' (appeal ts 6).
86 In my opinion, there is no substance in this complaint. It is plain, in the context of the relevant sentence in his Honour's summing up and the summing up as a whole, that his Honour's reference to 'the lie in the second record of interview' was a linguistic slip. There is no doubt, in my opinion, that the jury would have understood that his Honour's reference to 'the lie in the second record of interview' was to the first lie which the appellant admitted in the second interview; that is, to the appellant's admission in the second interview that during the first interview he had lied when he said that Mr Pilgrim had the shotgun at the beginning of the incident. It is significant, once again, that defence counsel did not request his Honour to give a redirection or a further direction on the point.
87 The ground of appeal fails.
Conclusion
88 I would grant an extension of time to appeal, but the appeal must be dismissed.
89 MAZZA JA: I agree with Buss JA.
5
17
2