R v Alzuain - [2008] SADC 111

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v ALZUAIN
[2008] SADC 111
Reasons for Ruling of His Honour Judge Chivell
2 September 2008
EVIDENCE
Discretion to exclude - evidence of flight from police
The Queen v Bridgman (1980) 24 SASR 278; R v Power & Power (1996) 87 A Crim R 407, applied.

R v ALZUAIN
[2008] SADC 111

Mr Alzuain has been arraigned and pleaded not guilty to one count of possessing “ecstasy” for the purpose of selling it to another person contrary to s32(1)(e) of the Controlled Substances Act.
By Rule 9 Application, dated 29 August 2008, Mr Alzuain seeks the exclusion of evidence relating to his alleged flight from the police on 24 July 2006.
Stated very briefly, the facts alleged are that Mr Alzuain had been arrested earlier in the day at the Salisbury police station. This arrest was unrelated to the present matter. While in custody after that arrest, Mr Alzuain was conveyed to his parents’ house at Parafield Gardens. His parents were present at the house, together with a number of other members of his family.
A search of the premises was carried out by the police and this allegedly revealed the presence of a “bum bag” containing a large number of “ecstasy” tablets. The prosecution alleges that these tablets were in Mr Alzuain’s possession for the purpose of sale.
The events at the house are complex and somewhat convoluted, but at one point, just after 7.00pm, there were conversations about Mr Alzuain going to the toilet. There were negotiations which led eventually to the police removing his handcuffs, religious factors were cited, there were further negotiations about closing the bathroom door. Eventually, Mr Alzuain went into the bathroom and locked it from the inside. He responded to some things which were said to him through the door by the police, but eventually these communications ceased. He had escaped through the bathroom window. He voluntarily handed himself into the police two days later.
The prosecution proposes to suggest that this is an item of circumstantial evidence which tends to prove a consciousness of guilt on the part of Mr Alzuain.
The grounds for exclusion of the evidence in the Rule 9 Application (for example, paragraph 12), are somewhat cryptic - they read “more prejudicial than probative”.
Mr Ey, counsel for Mr Alzuain, pointed out that his client gave an explanation for his flight to the police after he handed himself in. He said that there had been an incident at the Salisbury police station prior to them attending at the Parafield Gardens house, in which he was assaulted by the police. He said that he escaped from the police at the house because he feared a further beating. It is clear from the relevant passages of the records of interview that the police deny that any such beating took place. Mr Ey argued that to allow that evidence to be led would “open Pandora’s box” in relation to the earlier incident, that the evidence of flight was neutral, and that if the evidence was led, Mr Alzuain would suffer prejudice because it would be necessary for him to explain what happened during the earlier incident.
It has long been the case that courts have received evidence of flight or absconce from bail as evidence of consciousness of guilt.
In The Queen v Bridgman (1980) 24 SASR 278 at 281, White J referred to an unreported judgment of Cox J in The Queen v Pignataro and Spiero in which his Honour said:
The tone of Wills on Circumstantial Evidence (7^th Ed) 138-142, is guarded on the subject of evidence of flight, but it is important to bear in mind that the predicament of the defendant who in fact had an innocent explanation for his apparently incriminating behaviour was greater in the days when he was unable to go into the witness box to give to the jury the true explanation. No such obstacle confronts the defendants in the present case.
White J added:
And I would add the comment that the punishment for crime was such in the early nineteenth century when most of the rules were formulated that innocent defendants might have been tempted to flee then more than now.
In Bridgman, White J excluded evidence of flight because there was evidence that he was on parole at the time of the offence and he would have been forced to disclose to the jury his previous bad character when explaining his reason for flight. White J said at p282:
..... in the present case before me, evidence of flight was not placed before the jury once an additional substantial reason for flight was disclosed in circumstances which made the fact of flight ambiguous and the task of explaining the ambiguity onerous and prejudicial.
In R v Power & Power (1996) 87 A Crim R 407 Doyle CJ, with whom Millhouse and Williams JJ agreed, said at p409-10:
In my opinion, the evidence was admissible. Taken as a whole it was evidence upon which the jury might conclude that the conduct of the appellants manifested a consciousness of guilt. There is adequate authority to support the view that evidence of flight (and I use this term compendiously to describe the whole of the evidence, because in my opinion it is all interrelated) is admissible as showing a consciousness of guilt: see, eg, Melrose [1989] 1 Qd R 572; (1987) 30 A Crim R 332. It would not be often in such cases that the evidence is unequivocally indicative of guilt. There may, I suppose, be cases in which the evidence is intractably neutral, but I fail to see how the evidence in this case can be so regarded. Of course, the explanation advanced by the appellants was not a ludicrous or obviously false one, but to my mind that does not render the evidence incapable of supplying proof or evidence of guilt. If it did, then much circumstantial evidence which is routinely admitted would be rejected. In my opinion, the ruling by White J, reported in Bridgman (1980) 24 SASR 278 is not to be taken as meaning that evidence of flight is inadmissible simply because a credible explanation is advanced. In my opinion, the approach to be taken is that indicated by Sheperdson J in Melrose (at 579; 338-339) (assuming that the evidence is not intractably neutral):
“I would however say that in my opinion, where there is evidence of flight before a jury whether there be one or more than one reason advanced for that flight, the jury should be told that it is for them to decide on the whole of the evidence relevant to the charge in which evidence of flight has been admitted what inference is to be drawn from the accused person’s flight but if at the end of the day they decide to infer a consciousness of guilt in the accused person for the offence alleged, they must be satisfied beyond reasonable doubt of such an inference.”
In my opinion, the circumstances in this case are similar to those in Power. The explanation Mr Alzuain has given is not ludicrous or obviously false. It will be for the jury to consider whether the prosecution has excluded that explanation beyond reasonable doubt before an inference of guilt may be drawn. I do not consider the evidence to be “intractably neutral” at all - the task for the jury outlined by Sheperdson J in Melrose is one juries routinely perform.
I can see no prejudice to Mr Alzuain, in the sense of unfairness or injustice, which will arise from the admission of the evidence. Any tendency the jury might feel to speculate about the earlier visit to the police station, or to draw adverse inferences from that visit, can be dealt with by appropriate directions to the jury. If the jury decide to draw an inference of guilt, after being satisfied beyond reasonable doubt that it fairly arises on the evidence, then there is no unfairness or injustice (see the discussion of the general discretion to exclude otherwise admissible evidence in R v Lobban (2000) 77 SASR 24 at [59]-[89] per Martin J).
The application to exclude the evidence of Mr Alzuain’s flight from the Parafield Gardens house on 24 July 2006 in the exercise of the general unfairness discretion is refused.