R v An Accused - [2015] SADC 170

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v AN ACCUSED
Criminal Trial by Judge Alone
[2015] SADC 170
Reasons for the Verdicts of His Honour Judge Tilmouth
23 November 2015
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF
Three counts of unlawful sexual intercourse found unproven.

CRIMINAL LAW - EVIDENCE - CORROBORATION - WHAT CONSTITUTES CORROBORATION - ADMISSIONS AND CONDUCT OF ACCUSED - LIES, DENIALS ETC
Consideration of the effect of lies told in a record of interview and of the probative effect of lies told by an accused in evidence in a failed attempt to explain or justify the earlier lies.
Evidence Act 1929 (SA) s 71A(4); Mackenzie v The Queen (1996) 190 CLR 348; R v Smart [2010] VSCA 33; R v Manunta (1990) 54 SASR 17; R v Robinson [1977] Qd R 387; Broadhurst v The Queen [1964] AC 441; R v Camilleri (2001) 119 A Crim R; R v Franklin (2001) 3 VR 9; R v Gianfreddo (1990) 50 A Crim R 327; R v Harris (1990) 55 SASR 321; R v VN (2006) 15 VR 113; R v Wells [2013] QCA 289, referred to.
R v Place [2015] SASCFC 163; R v S, DD (2010) 109 SASR 46; R v Murray (1987) 11 NSWLR 12; Question of Law Reserved on Acquittal (No 1 of 1993) (1993) 59 SASR 214; Edwards v The Queen (1993) 178 CLR 193; Douglass v The Queen (2012) 86 ALJR 1086; Zoneff v The Queen (2000) 200 CLR 234, applied.

R v AN ACCUSED
[2015] SADC 170
The issues

The accused entered not guilty pleas to three counts of unlawful sexual intercourse with a person under the age of 17 years, contrary to s 49(1) of the Criminal Law Consolidation Act 1935 (SA), and he elected for trial by Judge alone. In reasons separately delivered he was found not guilty of counts 1 and 3 on the basis that it was not established the charges were proven beyond reasonable doubt in light of inconsistencies and inadequacies in the evidence on those counts identified earlier. He was also found not guilty on count 2, for reasons now published.
It is not possible to publish the entire reasons as that might infringe the requirements of s 71A(4) of the Evidence Act 1929 (SA), which prohibits the publication of material by which the identity of a person alleged in any legal proceedings to be the victim of a sexual offence is revealed or inferred. What follows relates only to conclusions reached in respect of count 2, insofar as they deal with lies told by the accused in the course of his evidence during the trial in order to explain lies to police during a formal interview.
The accused was taken during the course of his evidence-in-chief by his counsel to a record of interview he voluntarily gave in the presence of his solicitor on 3 April 2014. During this interview he denied the allegation, ‘have you ever taken [the complainant] to your property at … under any circumstances?’[1] He unconvincingly purported to explain this denial by suggesting that during the interview he ‘was somewhat nervous and I perceived the question to mean did I take him out alone’.[2] He does not appear to be nervous in the slightest so far as one can judge from watching the video recording of that interview.[3]
[1]    Exhibit P31, p.9.
[2]    T171.18-.26.
[3]    Exhibit P3.
When taxed under cross-examination about this issue the accused grew increasingly defensive:[4]
[4] T206.29-209.19.
QLet me take you to that, please. That’s on the previous page, I think, p.9. And Mr Vadasz took you to this also. P.9, line 35. Do you see that you were asked this question … ‘Okay, have you ever taken the complainant onto your property … under any circumstances?’. Do you see the question.
AYes.
QDid you understand the question when it was asked.
AYes.
QDo you see that you replied ‘No’.
ANo.
QThat wasn’t true, was it.
AIn what regards?
QWell, it was a lie.
ANo.
QWasn’t it.
ANo.
QIsn’t it your evidence that you took the complainant to the property …
ANot alone.
QBut you took him there, didn’t you.
ANot alone.
QWhy do you say that.
ABecause I didn’t take him alone.
QWell, did anyone ask you whether you took him there alone.
ANo.
QIn fact, what [the Detective] asked you was whether you took him there ‘under any circumstances’. Do you see that.
AYes.
QDid you understand [him] to mean was there any time, any time, when [the complainant] went with you to the property at …. . You understood that that’s what he meant, didn’t you.
AI didn’t understand he meant not alone.
QDid you say that to him. Did you say ‘Well, there was a time, but on that occasion it was [with another person]’.
ASorry? I missed that.
QWell, you never told him, did you, that there was a time when it was [with another person]. You never said that to him.
ANo.
QWhy didn’t you say that.
ABecause I misunderstood the question and I was nervous.
QWhat part of it did you misunderstand.
AI perceived it as him asking me if I’d taken him out alone.
QReally.
AYes.
QBut as you were sitting there listening to that question and giving your answer, you knew, didn’t you, you knew at that time, on your story, that [the complainant] had gone to … . You knew that, didn’t you.
AI suppose so.
QYes. Yes. And on your story, not only did you know the time, but you knew the activity that you’d gotten up to.
AHay carting?
QHay carting. That’s your story isn’t it.
AYes.
QWhy didn’t you tell [the Detective] about that.
APerhaps because I forgot.
QWell, did you forget.
AYes.
QYou forgot that you’d taken [them] hay carting.
AI didn’t think it was relevant.
The question in the record of interview did not distinguish between going to the property alone or with someone else, was unambiguous to the point of not permitting any reasonable misunderstanding about what was asked and it was plainly relevant, given that [the Detective] had earlier advised him of the allegations which relate to count 2.[5]
[5] Exhibit P3A, p.8.
The question of access keys to the property came up again under cross-examination in which the accused affirmed entering using his own key. When asked ‘do you know how [the complainant] may have come to know the key was in the cupboard’, he could not explain it.[6] Of course he bears no onus to do so, but the point is that he did not then volunteer the explanation that there was a subsequent visit. However when later asked again about the joint visit to and what key was used to enter the house, he volunteered ‘my key or the one from the cupboard’.[7] Mr Powell for the prosecution seized on this gloss on his previous evidence shortly afterwards:[8]
[6]    T211.2-.26.
[7]    T214.24-.28.
[8]    T215.27-.36.
QWhen his Honour asked you those questions just a moment ago why did you say to his Honour that you got in either by your key or the one in the cupboard.
ABecause we went more than once.
QHow many times did you go.
AMaybe three.
QHave you mentioned those other occasions.
AYou didn’t ask me.
QDid you mention them to Mr Vadasz.
AI wasn’t asked.
The accused was also taken to the question during the police interview ‘…are you aware of [the complainant’s] sexual preferences at the time he was working at … or prior to that time?’ and his emphatic answer ‘no’. This denial was given even though the accused knew the complainant was homosexual well before the interview was conducted. He had in fact received a Facebook message from the complainant’s mother on 4 February 2012 ‘[the complainant] finally came out yesterday’.[9] His explanation during the course of his evidence for the false denial was equally unconvincing ‘I was answering did I know [his] sexual preference… ’, which is not literally true. When pressed under cross-examination on the topic he was evasive, argumentative and made pedantic distinctions, later claiming to have been ‘nervous’ and that ‘I wasn’t asked … that’s not what the question asks’.[10]
[9] Exhibit P5.
[10] T179.7-180.13, T184.31-185.16, T188.3-193.13.
The evidence on count 2 raises quite different issues from the other two counts. Unlike the accused’s evidence in relation to the other counts which basically consisted of general denials, there is other material that goes towards the proof of this count. A singular feature in the evidence on count 2 is, the complainant’s esoteric knowledge about the location of a front door key to the house, knowledge he could only gain had he been there and they entered house using that key. Any confusion about whether it was contained in a cupboard or filing cabinet near the front door is immaterial: it is his esoteric knowledge of the broad fact that is significant.
It is significant in the way this issue emerged during the trial that the complainant said nothing about such a key in his statement to the police.[11] At first he professed not to have gone to the property either before or since, but as explained earlier he appeared to admit doing so later under cross-examination in company and with the accused. He was not cross-examined by defence counsel on the basis that on this occasion they had gained admission to the house for the purpose of obtaining a drink, or on the basis that they did so using the outdoor key.
[11] T48.34-49.3.
That prospect was introduced for the very first time when the accused volunteered in the course of his evidence-in-chief that he had taken them into the house to obtain a drink using his own key.[12] It is from here that the course of the trial becomes important. It is to be recalled that he denied to the police taking the complainant ‘to your property … under any circumstances?’ His explanation for this that he was nervous was unconvincing because he does not appear nervous at all in the video of the police interview. In fact his answers are direct and clinical. It is to be remembered he had a solicitor present to assist him. Nor was the question ambiguous, so his explanation that he perceived the question to mean ‘did I take him out alone’, was disingenuous to say the least.[13]
[12] T169.34-170.35.
[13] T171.18-.26.
The fact that he has lied to the police goes to his credit, but is not at this juncture taken so as to infer evidence of guilt: Zoneff v The Queen.[14] This conclusion is reinforced from his answers to the questions concerning his knowledge of the complainant’s ‘sexual preferences at the time’, a topic discussed earlier. His explanation for the denial on this subject was equally unconvincing, symptomatic of deliberate evasion of simple unambiguous questions, defended by equally untenable distinctions and which therefore reflect adversely on his creditworthiness. The admitted lie to the police about the complainant not going to the property is relevant solely as to count 2.
[14] (2000) 200 CLR 234, [23].
There is no difference in principle between lies told out of court and those told during the course of evidence on oath in the defence case: R v Gianfreddo,[15] R v Harris,[16] R v VN,[17] R v Wells.[18] This principle is explained by Deane, Dawson and Gaudron JJ in Edwards v The Queen:[19]
At one time it was thought that only a lie told out of court could amount to an implied admission, but the distinction is not logically supportable and is no longer drawn. When the telling of a lie by an accused amounts to an implied admission, the prosecution may rely upon it as independent evidence to "convert what would otherwise have been insufficient into sufficient evidence of guilt" or as corroborative evidence.
But not every lie told by an accused provides evidence probative of guilt. It is only if the accused is telling a lie because he perceives that the truth is inconsistent with his innocence that the telling of the lie may constitute evidence against him. In other words, in telling the lie the accused must be acting as if he were guilty. It must be a lie which an innocent person would not tell. That is why the lie must be deliberate. Telling an untruth inadvertently cannot be indicative of guilt. And the lie must relate to a material issue because the telling of it must be explicable only on the basis that the truth would implicate the accused in the offence with which he is charged. It must be for that reason that he tells the lie. To say that the lie must spring from a realization or consciousness of guilt is really another way of saying the same thing. It is to say that the accused must be lying because he is conscious that "if he tells the truth, the truth will convict him".
[15] (1990) 50 A Crim R 327.
[16] (1990) 55 SASR 321.
[17] (2006) 15 VR 113, [82].
[18] [2013] QCA 289, [35].
[19] (1993) 178 CLR 193, 208–209 (footnotes omitted).
This principle directs inquiry to the subsequent evidence given by the accused. As documented earlier when cross-examined ‘do you know how [the complainant] may have come to know the key was in the cupboard’, he could not explain it.[20] Later asked again about the joint visit to the property and what key was used to enter the house, he opportunistically volunteered ‘my key or the one from the cupboard’.[21] His explanation in response when pressed that he had not raised this possibility beforehand, was equally opportunistically and evasively explained ‘you didn’t ask me’.[22]
[20] T211.2-.26.
[21] T214.24.-28.
[22] T215.34.
This explanation was given in the context of his counsel neither asking him in-chief, nor cross-examining the complainant upon the topic; in other words it came out very late in a vain endeavour to explain the emergent forensic problem raised by the complainant’s esoteric knowledge of the outdoor key, in an unsuccessful attempt to overcome the emerging problem of how the complainant knew of the key, so it is only explicable on account of a deliberate falsehood on his part designed to avoid a perceived deficiency in his case: Mackenzie v The Queen.[23]
[23] (1996) 190 CLR 348, 375.
The other aspect compounding the matter is that it was not put to the complainant under cross-examination that he went to the property after the deposed events, and much more importantly that access to the house was obtained on that occasion by means of an outside key. What was put to him on the subject was this:[24]
[24] T41.36-42.13.
QYou and he went to the property at … on one occasion.
AI don’t remember that, no.
QI suggest you went up there on an occasion and there was hay cutting going on.
ACould have possibly happened. I don’t remember that.
HIS HONOUR
QYou understood that did you.
AYes
XXN
QThere was hay cutting going on. You don’t remember, but possibly he could have been up there –
ACould have possibly gone up there, but I don’t remember it.
The omission to cross-examine on this vital topic rather suggests counsel had no instructions at that point in time of another visit to the property when this spare key was exposed to the complainant’s glare. This omission was pointed out to Mr Vadasz during the course of his closing submissions. He explained the reason for the omission was that ‘It wasn't part of the prosecution case that he went inside the house’ and that it wasn’t mentioned in [the complainant’s] statement either.[25]
[25] T266.12-268.3.
It can be accepted that the issue surrounding the house key did not appear in any of the material served on the defence pre-trial, and that the issue crystallised for the first time under cross-examination of the accused. The point is that the complainant was not asked about the prospect of another occasion in which a visit was made and this spare key was accessed from storage near the front door. Although this topic may have come as a surprise, defence counsel was shortly afterwards given an adjournment at his request so as to ‘get some instructions’ before completing his cross-examination.[26]
[26] T74.16-75.21.
Ordinarily it would be appropriate to put the omission to cross-examine on this significant topic down to its omission from the material supplied by the prosecution, and perhaps to forensic pressures and perhaps even to appreciate the significance of the issue, so as not to reflect adversely upon the credibility of the accused: R v Smart,[27] R v Manunta.[28] However taken in conjunction with the manner in which the accused deliberately sought to manoeuvre around the issue, gives rise to the inference that he has changed his story on the topic. This line of reasoning was recognised in R v Robinson where the underlying reasoning behind the principle is said to be:[29]
… cross-examining counsel is concerned with primary facts. His instructions are as to primary facts, and it is his obligation — a strict obligation — that, if he “puts” occurrences to witnesses, he “put” them in accordance with his instructions. This being so, the instructions may be inferred from the questions. If there is a discrepancy in a significant particular (I do not mean a minor or explicable discrepancy, for whilst perfection in communication between client and legal adviser is aimed at, it is not always achieved) between questions based on instructions as inferred and the evidence of the person from whom the instructions must be taken to have come, it seems to me to be quite permissable[sic] for a judge to ask the jury to have regard to the discrepancy in evaluating the evidence.
The truth is, I think, that whilst in a strict sense questions are not evidence, questions asked (and indeed questions unasked) form part of the conduct of his client’s case by counsel. The conduct of the case is something from which the jury may be asked to draw inferences, so long as due regard is had to the requirement of fairness and the possibility of human error (especially in relation to peripheral matters).
[27] [2010] VSCA 33, [123].
[28] (1990) 54 SASR 17, 23.
[29] [1977] Qd R 387, 394.
It must on the other hand be acknowledged as King CJ emphasised in R v Manunta:[30]
It is legitimate, of course, to draw appropriate conclusions from counsel's failure to put in cross-examination some matter to which his client or his witnesses subsequently depose. It is a process of reasoning, however, which is fraught with peril and should therefore be used only with much caution and circumspection.
[30] (1990) 54 SASR 17, 23.
As the Chief Justice proceeded to observe, there may be many explanations for the omission of defence counsel to cross-examination, which do not reflect upon the credibility of the witnesses, such as counsel misunderstanding instructions, and forensic pressures. This however is not such as case. As explained earlier, although the issue did not emerge until the cross-examination of the accused, defence counsel had the benefit of an adjournment to take instructions not long after the complainant deposed to the secreted key being used to enter the home. Even so, defence counsel did not put the later visit to him, so the only inference to draw is that he was not then instructed about the supposed visit or as to the possibility that the accused might have used the secreted key rather than his own to enter the house.
From this course of events during the trial, the only reasonable inference to draw is that the accused did so because of a deliberate realisation that there was no explanation for the complainant’s knowledge of the key, that is by way of a consciousness of guilt: Zoneff v The Queen.[31] If this is not reasonably explicable on any other basis, it therefore forms probative evidence against the accused on count 2.
[31] (2000) 200 CLR 234, [23].

For these reasons the evidence of the accused is not believable on this point. Nevertheless, discrediting an accused as a witness is no substitute for evidence proving the commission of the crime charged and just because he is proven to have told a material lie, does not mean he is guilty: Broadhurst v The Queen,[32] R v Harris,[33] R v Camilleri.[34]
[32] [1964] AC 441, 457.
[33] Above, 323.
[34] (2001) 119 A Crim R, 106, [107].
Accordingly this evidence amounts to an implied admission of guilt to be weighed along with all the other acceptable evidence led in relation to count 2, in order to determine whether the charge is proven beyond reasonable doubt: R v Franklin.[35] Just because the accused is proven to have lied, ordinarily does not result in a verdict of guilty, for it is then necessary to be satisfied of guilt on the basis of the whole of the remaining evidence as can be relied upon: R v Woods.[36] As always, the question remains whether the evidence taken as unreliable proves the offence beyond reasonable doubt, even when unpersuaded by the accused’s evidence: Douglass v The Queen.[37]
[35] (2001) 3 VR 9, [104].
[36] (2008) 102 SASR 422, [38].
[37] (2012) 86 ALJR 1086, [12].
That is the position in respect of counts 1 and 3, but it is a different matter in respect of count 2, as the disbelief of the accused goes further to amount to evidence of lies probative of guilt and hence forms a species of corroboration in respect of this count. The evidence of the complainant was unreliable in the lack of detail, inconsistency of complaint and in making assertions that are unlikely. There is the conflicting complaint of two – as opposed to one – occasions in the tack room and whether a bench rather than a freezer was used, and the inconsistency as to where the complainant was delivered afterwards.
As against that there is a telling description of the property which could only have come from a person who had been there and far more significantly, the esoteric knowledge of the key in the cupboard or filing cabinet near the front door of the property and the patent lies told by the accused about that.
However the complainant’s concession under further cross-examination that he ‘could have’ been to the property on another occasion, necessarily means that it is impossible to erase the reasonable possibility that the esoteric knowledge as to the location of the house key derives from a different visit than that on which count 2 is premised: R v HS.[38] Further because it is reasonably possible that the accused’s lies in evidence about that were borne of a vain attempt to extricate himself from a forensic dilemma thrust upon him during the latter stages of the trial, rather than from a direct consciousness of guilt with respect to the count 2 events, he is entitled to the benefit of the reasonable doubt that thereby arises, so he is therefore entitled to an acquittal on count 2.
[38] (2004) 90 SASR 28, [21]-[23], [55].