R v Baring & Leonard - [2005] SASC 262

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BARING & LEONARD
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Perry and The Honourable Justice Sulan)
15 July 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS - OTHER MATTERS
Appeal against conviction – appellants jointly charged with aggravated serious criminal trespass in a place of residence and threatening a person with a firearm – appellants found guilty of both charges – whether trial judge’s direction to the jury about lies was adequate considering the unusual features of the trial – counsel for the appellant Leonard put questions to the witnesses suggesting Leonard was not at the premises – the prosecution was permitted to re-call the witnesses who identified Leonard’s voice which had been recorded during the incident - one of the occupants had dialled triple zero and left the phone on during the incident – Leonard’s counsel then cross-examined the witnesses suggesting Leonard was present but not inside the house – whether the trial judge adequately directed the jury about how to treat Leonard’s change of instructions – whether trial judge adequately put the accused Leonard’s explanation about the change of instructions – whether the prosecutor sufficiently clarified how the prosecution sought to rely upon the alleged lies of the appellant Leonard – application of the proviso – both appeals allowed – matter remitted to the District Court for a retrial.
Criminal Law Consolidation Act 1988 s 170(2), s 47(a), referred to.
Edwards v R (1993) 178 CLR 193; Harris v R (1990) 55 SASR 321; Krakouer v R (1998) 194 CLR 202; R v Collie (2005) 91 SASR 339; R v Lander (1989) 52 SASR 424; R v Robinson [1977] Qd.R. at 387; R v Sargent (2001) 80 SASR 184; Wilde v R (1988) 164 CLR 365; Zoneff v R (2000) 200 CLR 243, considered.

R v BARING & LEONARD
[2005] SASC 262
Court of Criminal Appeal: Doyle CJ, Perry and Sulan JJ

DOYLE CJ: I agree with the orders proposed by Sulan J. I agree with his reasons for making those orders.
PERRY J: I would allow the appeals against conviction and direct a re-trial.
In those circumstances, it is unnecessary to deal with the application for leave to appeal against sentence brought by the appellant Baring.
I agree in substance with the reasons of Sulan J.
I add some comments on the question of the adequacy of the direction by the trial judge as to the allegation by the prosecutor that Leonard had changed his instructions to his counsel after the tape of the 000 call was played to the jury.
The use which the prosecutor made of this evidence went no further than to label Leonard as a liar. He alleged as much in the question which he put in cross-examination:
… I am going to suggest to you that the reason you did that [change instructions] is because you were caught on that tape in a lie.
Later, when addressing the jury, the emphasis in the prosecutor’s address was placed on his appeal to the jury to accept the evidence of the eye witnesses present in the house as witnesses of truth, and his contention that Baring and Leonard had lied to the jury as to what had transpired. That is clear from the passage from the prosecutor’s address quoted in the reasons of Sulan J.
So that the conduct of the prosecution did not involve an assertion, or at least an express assertion, that Leonard had lied out of a consciousness of guilt. Rather, the prosecutor mounted a vigorous attack upon the credit of both Baring and Leonard, in the case of the latter, by reference, at least in part, to his alleged change of instructions to his counsel.
In the ordinary case, an attack by the prosecution upon the credit of an accused person who chooses to give evidence, part of which may involve a direct assertion during the course of cross-examination that the accused is lying, which may be accompanied by submissions to the same effect in the course of an address to the jury, would not give rise to a situation in which the trial judge should give what has come to be known as an Edwards’ direction.[1]
[1] See Edwards v R (1993) 178 CLR 193.
As Sulan J points out, the High Court in Zoneff[2] distinguished between cases where the prosecution relies upon the suggestion that a lie by an accused person, whether out of court or in the course of giving evidence, should be regarded as stemming from a consciousness of guilt, and those cases where the prosecution limits the use which it suggests should be made of the lie, to questions of credit only.
[2] (2000) 200 CLR 234.
What is important to understand from the decision in Zoneff is that in cases where lies are said to go simply to credibility, it will usually be sufficient for the trial judge, should he or she embark upon a direction as to the alleged lies, to confine the direction to the relevance of the lies to the question of credit.
The error which the High Court identified in the summing up in question in Zoneff, was that instead of confining himself to a direction as to credit, the trial judge in that case told the jury that sometimes a person may lie out of a consciousness of guilt. Having done so, he then failed to give the direction which was necessary in that context, in accordance with Edwards.
But even where the suggestion is not made that the accused has lied out of a consciousness of guilt, if there is nonetheless a serious risk, having regard to the circumstances of the case, that the jury might engage “in an impermissible process of reasoning in relation to … lies”, Zoneff stands for the proposition that in such circumstances a warning should be given to the jury not to “… 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”.[3] I will describe that as a “Zoneff” direction.
[3] Zoneff (supra) per Gleeson CJ, Gaudron, Gummow and Callinan JJ 200 CLR 245 [23].
In Zoneff, after indicating that such a direction might appropriately have been given in that case by the trial judge, Gleeson CJ, Gaudron, Gummow and Callinan JJ went on to say:
[24]A direction in such terms may well be adaptable to other cases in which there is a risk of a misunderstanding about the significance of possible lies even though the prosecution has not suggested that the accused told certain lies because he or she knew the truth would implicate him or her in the commission of the offence.
In my view, the risk that a jury may reason impermissibly from a finding that the accused has lied, towards a conclusion that it is indicative of guilt, will almost always be present, unless an appropriate direction is given. For that reason, I think it better, as a matter of general practice, for trial judges to give a Zoneff direction whenever it is suggested that the accused may have lied.
Of course, in cases where the prosecution contends that a lie is evidence of guilt, an Edwards direction must also be given.
I note that the manner in which the trial judge summed up on this aspect of the matter raised a concern with Leonard’s counsel, Mr Apps, that the jury might follow an impermissible process of reasoning. He expressed that concern after the jury had been sent out. He suggested that the trial judge might have put the matter too broadly by directing the jury that they might use the “alleged change of instructions of Mr Leonard” to determine whether he was a witness of truth. He went on to say:
If I heard your Honour correctly and the jury take it like that, they might think his whole defence therefore hinges on that; he is either a witness of truth or not, dependant on what they make of the alleged change of instructions.
He went on to suggest that the trial judge give a “lies type direction” which he explained in language suggesting that it should be cast in terms of an Edwards direction.
The trial judge declined to give a further direction in the matter.
That experienced counsel expressed concern as to the effect on the jury of the judge’s direction in this respect, adds weight to the conclusion that the risk of the jury adopting an impermissible process of reasoning, was a real one.
A further question arises in this case as to the fact that the accused and his counsel offered explanations to the jury for the alleged lie.
In this case, as indicated by Sulan J in his reasons, such an explanation was given by Leonard in the course of his cross-examination. A further explanation was given by his counsel, Mr Apps, who said, during the course of his address:
A person may say I wasn’t there because if I say I was there people might think the rest of it follows, when it is not so.
In cases where, for example, it is simply alleged by the prosecutor that an accused has lied in giving evidence, no occasion arises to direct the jury as to possible explanations except that, as I have suggested, a Zoneff type direction should be given.
Here, however, the circumstances were different. The accused having given an explanation in evidence, and his counsel having given a further explanation, it would have been better if the trial judge had reminded the jury of those explanations as providing a possible reason why the accused might lie.
SULAN J:
Introduction
The appellants, Brenton Troy Baring and Daniel Kim Leonard, were each convicted by verdict of a jury of aggravated serious criminal trespass in a place of residence, contrary to s 170(2) of the Criminal Law Consolidation Act 1988 (“the Act”), and threatening a person with a firearm, contrary to s 47(a) of the Act. They have both appealed against their convictions. They were each sentenced to imprisonment for four years. Baring received a non-parole period of two years and three months. Leonard received a non-parole period of two years and eight months. Baring applied for leave to appeal against his sentence, which was refused by a single judge. He applies to this Court for leave to appeal against the sentence.
Counsel for the appellant Leonard cross-examined the witnesses and put questions which were inconsistent with questions he had previously asked of the witnesses. In the cross-examination of Leonard, it was put to him that he had changed his instructions to counsel. He conceded that he had given instructions inconsistent with his evidence at trial. It was unclear when he had changed his instructions. His inconsistent statements became an important plank of the prosecution case. As a consequence, the judge gave a direction to the jury about lies. The appeal raises the question of the adequacy of the direction.
In order to understand how the issue arose, it is necessary to deal in some detail with the evidence and the course of the trial.
Background
The offences occurred on 19 December 2002 at the home of Jason Clark and Janette Riley, who lived together at 18 June Street, Mansfield Park (“June Street”). On that evening, Mr Clark and Janette Riley were at home. Two of Janette Riley’s sons, Brett Faulkner and Luke Faulkner and their girlfriends, Rebecca Dunstall and Christy Adams, were also at the home. There were other members of the family present, including another brother, Shaun Faulkner, and two of Mr Clark’s children, James and Kane.
The Crown case was that Baring and Leonard were known to Brett and Luke Faulkner and to their girlfriends, Rebecca Dunstall and Christy Adams. Brett and Luke Faulkner and their girlfriends lived at a house at 21 Brister Street, Angle Park (“Brister Street”), which was a short distance from June Street. On the day in question, at about lunchtime, Baring had approached Brett Faulkner and Ms Dunstall in the driveway of their home.
Later that day, Brett and Luke Faulkner and their girlfriends were in a car driven by Christy Adams when they saw the appellant Leonard and his girlfriend at a service station. There was an altercation between Leonard and the occupants of Christy Adams’ car.
After the incident at the service station, Christy Adams drove to June Street and Brett and Luke went inside. She and Rebecca Dunstall drove on to Brister Street. They saw the appellant and they immediately returned to June Street.
About 9.30 p.m. there was a knock on the front door. Janette Riley answered the door. It was the Crown case that Leonard entered the house. He was armed with a sawn-off shotgun. He was yelling out and asking, “Where is Luke?” He was asking for $15. Baring also entered the room. A third person was standing outside on the doorstep. Leonard was threatening people, so Janette Riley took $20 from Christy Adams and gave it to the third man at the door. She told the two men to get out. After about five minutes they left.
The Crown prosecutor’s opening
In opening the case to the jury, the Crown prosecutor gave a general overview of the evidence. He did not deal in detail with the evidence of the witnesses who were to be called. In the course of telling the jury who were present at the house that evening, he said:
Both Luke Faulkner and James Clark are unable to give evidence. Kane Clark was two and a half at the time the incident occurred. After the two accused left Ms Riley’s house, a call was made to the police by either Ms Riley or Brett Faulkner, or a combination of both. As a result of the information received by way of a triple zero call, two uniformed police officers in the Mansfield Park area, Schroeder and Clover, were on lookout for an HQ Kingswood sedan. They saw one driving east on Ridley Grove, Woodville Gardens at about 9.37 p.m.[4]
[4] Appeal Book Volume 2 page 9
The making of that triple zero call became very significant later in the proceedings, and I will return to it in due course.
The prosecution case was that the police followed a vehicle to Baring’s home at Angle Park. They observed four occupants leave the vehicle. The police approached the appellant Leonard, who admitted that the car belonged to him. The police searched the vehicle. They found no weapon, or items of interest.
The witnesses
Janette Riley gave evidence that at about 9.30 p.m. on the night in question when the people to whom I have referred were in the lounge room, there was a knock on the front door. When she answered she recognised the appellant Leonard. She had seen him previously on a number of occasions in the general shopping area, and particularly at a fish and chip shop. She described his clothing. She gave evidence that Leonard entered the house. He pulled a gun from his jacket. He was yelling out asking, “Where is Luke?” He was asking for $15. She said that at about that time another person, who she identified as the appellant Baring, entered the room. She said she had seen him in the general area on previous occasions. She said that there was a third person standing outside on the doorstep. She managed to obtain $20 from Christy Adams, which she gave to the man at the door. She told the two men to get out and, after about five minutes, they left.
Brett Faulkner gave evidence that on 9 December at about lunchtime he was at home at Brister Street. He and his girlfriend, Rebecca Dunstall, were in his car, about to go out. As he was reversing out of the driveway, the appellant Baring came up to him and told him to tell his brother, Luke, that Luke owed Baring money, and unless Baring saw him by the end of the day he was going to come around to the house. Brett Faulkner said that he knew Baring, as he had seen him on previous occasions. Brett Faulkner said that he told Baring that he would tell Luke. He gave evidence that later that day he, his brother Luke, Rebecca Dunstall, and Christy Adams were in Christy Adams’ car at a service station near Grand Junction Road. He noticed the appellant Leonard driving a Holden Kingswood motor vehicle. When they were driving out of the service station, the appellant Leonard made a rude gesture towards their car with his finger. Both vehicles left the service station and, as Christy Adams was driving along Grand Junction Road, Leonard manoeuvred his car causing Ms Adams to stop. Leonard approached Christy Adams’ car and yelled at the occupants. He hit and kicked the car aggressively. Christy Adams drove off. Leonard followed. Eventually, she was able to get away from Leonard.
Brett Faulkner said that they then travelled to June Street, where Brett and Luke Faulkner left their girlfriends to go into the house. The two girls drove off. They returned a short time later. Shortly after, he heard a voice at the door asking for Luke. He recognised it was Leonard’s voice, so he ran out of the house through a door leading to the back of the house.
Rebecca Dunstall gave evidence about the incident at the service station. She recognised the appellant Leonard, who frequented the local fish and chip shop, and whom she had seen on a number of previous occasions. She described the incident when the two cars left the service station, and confirmed Christy Adams’ account. She gave evidence of the incident at Brister Street. She saw Leonard and Baring and a third person approaching. They were yelling that they were looking for Luke. Christy Adams drove off. When she and Christy Adams arrived at June Street, they were upset and were telling others in the house about the incident when there was a knock at the door. Janette Riley opened the door, Luke and Brett ran out of the room. She saw Leonard and Baring enter the lounge. There was a third man on the porch. Leonard had a gun in his hand. He was carrying a green carry bag. He demanded money. There was a lot of yelling. Janette Riley handed over $20. There were some more threats made by the men, who then left.
Christy Adams recounted the incident at the service station to which I have earlier referred. She gave similar evidence to Rebecca Dunstall about dropping Luke and Brett Faulkner at June Street and then being confronted by three men at Brister Street. She drove to June Street and was in the lounge room when Janette Riley answered the door. She recognised Leonard and Baring when they entered the room. Leonard was carrying a backpack. He pulled out a gun. Prior to that, James and Luke Faulkner had run out of a side door. She said Jason Clark and Kane Clark left the room shortly after Leonard entered. Money was handed over, and eventually the men left. She recalled the presence of a third person at the front door.
Shaun Faulkner, who was about twelve years of age at the time, gave evidence that he was in his bedroom when he heard a knock on the front door. He said he recognised Leonard’s voice asking for his brother, Luke. He entered the lounge room and saw Leonard, who was holding a sawn-off shotgun. He also identified Baring, who was in the room. He said that Leonard asked, “Where’s Luke? He owes us $15”. He was pointing the gun at Janette Riley. He said that his stepfather, Jason Clark, asked if he could leave, and when Leonard said yes, Jason Clark left the room with his son, Kane. He observed Janette Riley hand $20 over. Leonard and Baring then left through the front door. There was a third person at the front door. He followed the men outside and observed them driving away in Leonard’s Holden Kingswood motor vehicle, which he recognised.
Cross-examination by the appellant Leonard
Each of the witnesses was cross-examined by Mr Apps, counsel for the appellant Leonard. In respect of the witnesses, Shaun Faulkner[5], Janette Riley[6], Brett Faulkner[7], Rebecca Dunstall[8] and Christy Adams[9], it was put to them that their identification was incorrect and that Leonard was not at June Street that evening.
[5] Appeal Book Volume 3 page 381
[6] Appeal Book Volume 2 page 61
[7] Appeal Book Volume 2 page 148
[8] Appeal Book Volume 2 page 252-253
[9] Appeal Book Volume 2 page 334
The evidence of Jason Clark

Mr Clark gave evidence that he was present in the lounge room when he saw the appellant enter after Janette Riley had answered the door. He saw the appellant take a double-barrelled shotgun, with the barrel and stock sawn off, out of a green bag. The appellant asked for Luke. Mr Clark said by that stage Luke had left. It was then that he took his four-year-old son, Kane, and told Leonard he was leaving. Leonard agreed that Mr Clark and Kane could leave the room. They went to the front of the next-door neighbour’s house. It was at that stage, Mr Clark saw a third man. He also saw a grey-brown coloured Holden HQ motor vehicle. He saw three people leave in the car. He did not see anyone other than the appellant Leonard in the lounge room.
During cross-examination by counsel for the appellant Baring, the following evidence was given[10]:
[10] Appeal Book Volume 3 page 389
Q.There was a knock at the door and Janette answered the door and then there was a male voice, I think, wasn’t there.
A.Yes.
Q.At that stage, you were still inside, is that right.
A.Yes.
Q.You grabbed a phone, I think you said, and rang triple zero.
A.Yes, that’s correct.
Q.Whose phone.
A.My phone.
Q.What was that, a mobile phone, was it.
A.Yes.
Q.How long were you on the phone for.
A.I picked up it (sic), dialled the three numbers. I didn’t even listen to hear anybody on the other end and put it down. I wasn’t even sure the call actually went through.
Q.Did you dial the numbers or not.
A.Yes.
Q.Then you put the phone down.
A.Yes.
Q.When you did this, Janette was still at the front door, was she.
A.Yes.
An unusual occurrence
During the cross-examination, there was a mid-morning break. After the break, in the presence of the jury, counsel for the prosecution informed the judge that, as a consequence of the evidence that had been given just prior to the break, he had had discussions with counsel for each of the appellants about the timing of the triple zero phone call. Counsel said that it had been his understanding that the triple zero call had been made after the events had taken place in the lounge room, but it now appeared, as he realised for the first time, that the phone call may have been made as the events were taking place in the lounge room. He said that those events may have been recorded on the police tape. He informed the judge that he had listened to the tape before the trial, but regretted not listening to it as carefully as he should have. He said his original understanding was that the call was made after the events had occurred. He informed the judge that the tape contained a number of voices. He indicated that Mr Clark’s evidence had taken him by surprise, and he now wanted to speak to the witnesses in order to give them an opportunity to listen to the tape and determine if they may be able to identify the voices on the tape.
Counsel for Leonard said that he was surprised about Mr Clark’s evidence, because there had been nothing in his committal declaration which would have put the defence on notice. Neither defence counsel opposed the application for an adjournment.
The jury was told that all counsel had applied to adjourn the case in order to make important inquiries. The trial judge then adjourned the case until the following day, being Tuesday, 8 January 2005. The matter did not resume at that time, but resumed later in the morning on Wednesday, 9 January 2005. On that day, Mr Tremaine informed the court, in the absence of the jury, that a number of supplementary statements relevant to the triple zero call had been received by defence counsel. The trial judge was informed that each of the witnesses had listened to the tape and was able to identify voices on the tape. Counsel for the Crown submitted that it was only as a result of Mr Clark’s evidence that the significance of the contents of the telecommunication became apparent to him. Statements had also been taken from police officers who could confirm the times when the voices were recorded, and who could give evidence of what occurs when a triple zero call is made and how it is recorded.
Counsel for both appellants opposed further evidence being called. The judge determined to conduct a voir dire hearing and hear the proposed evidence in the absence of the jury before making a decision. The matter was further adjourned and on Thursday, 20 January 2005, evidence on the voir dire was given by the witnesses. Each of the witnesses gave evidence that they recognised the appellant Leonard’s voice on the tape.
Counsel for each appellant opposed the re-calling of witnesses, on the ground that it was too late and, having given their evidence and been cross-examined, it was unfair to permit the witnesses to be re-called. The trial judge ruled that he would allow evidence to be given, and would permit the prosecution to give a supplementary, strictly limited opening.
Before the supplementary opening was given, Mr Clark was cross-examined. Counsel for Leonard put the following questions[11]:
Q.I put it to you, but I want to make it clear, I say Danny came to the front door, did not come inside, when he left, he obviously left by himself, and you say you dispute that.
A.Yes, that’s correct.
Q.I suggest to you also he didn’t have a firearm, didn’t have a weapon at all. You dispute that.
A.Yes.
Q.I suggest when he left the premises he was waving his arms around. What do you say about that.
A.No, I don’t believe he was.
[11] Appeal Book Volume 3 page 468
On the assumption that counsel had put his instructions to the previous witnesses, it is clear that the appellant Leonard had changed his instructions after he became aware that his voice had been identified on the tape.
That position became clearer when the witnesses were re-called. Before I deal with the re-call of the witnesses, it is necessary to refer to the Crown prosecutor’s supplementary opening.
In his supplementary opening, the prosecutor told the jury that the prosecution case had developed a new dimension. He said:
… The evidence of Mr Clark, you just heard, Ms Riley’s partner, as you recall, was that he was in the room when the accused, Daniel Leonard, came into the room at least. He was there for a short period of time. More importantly, he told you he dialled 000 on his mobile phone and he was not sure if the call went through or he left the room with his son Kane.
It’s now been discovered the call did, in fact, go through to the police and, furthermore, that call was recorded, and we have that recording, and you, in due course, will hear that recording. You’ll hear that through the evidence of a police officer by the name of Kirkwood, who was on the other end of the line when that call, on the prosecution case, from Mr Clark’s phone, was connected.[12]
[12] Appeal Book Volume 3 page 470
Counsel for the Crown then informed the jury that he intended to re-call the witnesses, Janette Riley, Rebecca Dunstall, Brett Faulkner, Shaun Faulkner and Christy Adams to confirm the recording captured by the police communications system, and to identify voices on that recording. He also intended to call a Detective Ralph, who had listened to the tape and who recognised the voice of Daniel Leonard.
The witnesses are re-called
The witnesses were then re-called. In each case, the witness identified the voice of the appellant.
Counsel for the appellant Leonard cross-examined each witness and suggested to them that the appellant came to the door and was angry because of what had occurred at the service station, and the fact that his wife had almost been run off the road. It was suggested to each of the witnesses that he did not enter the house, but remained at the door, and that he had no weapon. That evidence was disputed by each of the witnesses.
The version of events put to the witnesses was a clear change of instructions from the earlier cross-examination in which it had been put to the witnesses that the appellant Leonard was never at the house that evening.
Evidence of each of the accused
The appellant Baring gave evidence. He admitted that on the evening of 9 December 2002 he had attended at the house of Janette Riley at June Street. However, he denied that he had gone into the house, or that he was part of any joint enterprise with Daniel Leonard. He said that he remained in the car and was never a party to the episode involving threats towards Janette Riley. He was not a party to any joint enterprise to confront Janette Riley with a firearm, or to demand money from any of the occupants of the house.
The appellant Leonard gave evidence that he went to June Street on 9 December 2002, but he did not enter the house, nor did he have a firearm. He was angry because of certain events that had happened earlier that day. He was extremely abusive and noisy, but that was the limit of his conduct. He agreed that his voice could be heard on the tape, but he denied that he ever entered the house, and denied that he was guilty of any of the charges. He said that after he and Baring left the house, they went to the Finsbury Hotel where they picked up two other people. Shortly after, they were stopped by the police.
Cross-examination of Leonard
In cross-examination, he was asked whether he had changed his instructions and to explain why he appears to have changed those instructions after the full details of the tape recordings had become known. He was asked:
Q. As I understand it, quite clearly you now admit, do you, that you were at the premises at 18 June Street.
A.That’s right, I do.
Q.And you instructed your solicitors that all along, did you.
A.Yes, I believe I did.
Q.And you understand that it’s important for your solicitors to put your position.
A.That’s correct.
Q.Your version of events to each of the witnesses.
A.That’s correct.
Q.Ms Riley was cross-examined by Mr Apps; do you remember that.
A.Yes, I do.
Q.You heard him say this, did you not, on p.61 of the evidence, this is directed by Mr Apps to Ms Riley ‘You’ve heard Mr Tremaine put this to you. I put it to you again quite shortly, I put it to you it wasn’t Danny Leonard, if anyone, that came to your house that night, you disagree’. Were they the instructions that you gave your solicitors originally.
A.I don’t believe I instructed exactly to ask that question, no.
Q.I am going to put a couple of propositions to you and you tell me whether you agree with them or not. I suggest to you your original instructions to your solicitors were that you never went near that house on the night of 9 December 2002. What do you say to that.
A.I don’t deny that initially out of fright and because I have a young son in my care, I was concerned because of the firearms allegation but, after speaking to my legal counsel, I instructed them accordingly.
Q.So is your position this, that when you first went to see lawyers, you told them that you didn’t go anywhere near 18 June Street on the night of 9 December 2002.
A.Initially I did.
Q.Did you not provide those instructions.
A.I didn’t supply those exact instructions, no.
Q.What instructions did you supply.
A.I hadn’t supplied any instructions at that stage.
Q.So Mr Apps has just gone off on a frolic of his own and suggested to Ms Riley that you weren’t anywhere near that house on 9 December 2002.
A.I believe so.
Q.Very experienced counsel, Mr Apps.
A.I understand.
Q.And he went off on a frolic of his own.
A.I believe that he has to look at every avenue possible in my defence.
Q.I’m going to put another proposition to you and you tell me whether you agree with it or not. I am going to suggest to you that you changed your instructions to your lawyers after you heard the tape, Exhibit P13.
A.That’s incorrect.
Q.I’m going to put another proposition to you. I am going to suggest to you that the reason you did that is because you were caught on that tape in a lie. What do you say to that.
A.I deny that.[13]
[13] Appeal Book Volume 3 page 657.38 to 659.21
The appellant Leonard agreed that initially when he spoke to his lawyers he told them he had not gone to June Street on the night in question. When cross‑examined, the appellant gave a number of answers which were ambiguous and non-responsive. It is not clear that the appellant fully comprehended what the cross-examiner meant when he referred to instructions given by the appellant. The answer by the appellant that he had not supplied any instructions at that stage was, to say the least, ambiguous. The suggestion that his counsel had ‘gone off on a frolic of his own’ is unhelpful, unless it was explained what was meant by those words in the context of the questions asked and answers given. What is of greater concern, however, is the denial that he had changed his instructions after he heard the triple zero tape.
At that point, he placed himself in conflict with his counsel. It seems counsel did not see a problem. In the jury’s eyes, the appellant had not only changed his story, but he was now in conflict with his own lawyer.
The trial proceeded as if it had been accepted by his counsel that the appellant’s instructions had changed after he heard the triple zero call. In his address to the jury, counsel for Leonard did not address the issue, other than to suggest to the jury that there may be an explanation for the appellant having denied being at the premises, and then changing his story. The trial proceeded in circumstances in which the jury were left with the impression that the appellant was untruthful in his response that he had not changed his instructions after the triple zero call was introduced into evidence. The position was far from clear. Could it have been that counsel misunderstood his instructions, or there was another explanation for Leonard’s evidence? The trial judge did not seek clarification. It seems to have been assumed by the judge that the appellant had changed his story after he heard and understood the significance of the tape. That conclusion was open, but there was ambiguity about Leonard’s response.
The prosecutor’s address
The prosecutor in addressing the jury suggested that both Leonard and Baring had lied to the jury. As to Leonard, he told the jury that counsel had an obligation to put their clients’ instructions to witnesses when the witnesses’ evidence is contrary to the version given by the client to his lawyer. He told the jury that counsel representing Leonard, had quite properly put his instructions on two separate occasions to the witnesses, Janette Riley, Rebecca Dunstall, Brett Faulkner, Christy Adams and Shaun Faulkner. He then referred to the tape of the triple zero call, and reminded the jury that initially counsel for Leonard had suggested that the appellant was not at the house. He submitted to the jury:
After the tape had become significant, ladies and gentlemen, and the witnesses that I have just referred to were recalled, what Mr Apps put was that Leonard was at the house but he was not armed and he never came inside. So what does that tell you, ladies and gentlemen? It tells you in no uncertain terms that Mr Leonard changed his story to his lawyers. He had to change his story, ladies and gentlemen, didn’t he, because his story, his original story was not compatible with the contents of P13, the tape, that clearly indicates that he was there on the night of 9 December 2002. It tells you this, ladies and gentlemen, it tells you in no uncertain terms that Mr Leonard is a liar.
I urge you to listen to the tape, ladies and gentlemen, when you retire to the jury room. Listen to the fear. Listen to the wailing of Rebecca Dunstall. Listen to what you can pick up in the tape and then ask yourselves is it possible that Mr Leonard went to the house unarmed and just yelled some abuse from the front door. Listen to that fear.
When you consider that tape, members of the jury, in my submission, you will have no possible doubt as to who is telling the truth here about what happened at that house at 18 June Street on the night of 9 December 2002. And, ladies and gentlemen, it’s neither Mr Baring, nor Mr Leonard who was telling the truth; it’s the people that were in that room apart from Baring and Leonard who have tried to assist you by telling the truth.[14] [Italics are mine]
[14] Appeal Book Volume 3 page 680-681
It is clear that it was an important part of the address of the prosecutor to refer to the change of instructions, and to suggest to the jury that the appellant Leonard is a liar and that he had changed his story mid-trial because he was caught out by the triple zero tape.
The summing up
During his summing up, the trial judge dealt with the prosecution case. He referred to the introduction into evidence of the audio tape. He said:
… This trial was to become an unusual one in that you, as the jury, had placed before you some evidence of the actual crimes being committed, not visual evidence of that, but sound evidence of that.
…
The prosecution case was thereafter no longer reliant just upon the honesty and reliability of lay witnesses, the people that were described in some context as “the Faulkner clan”. A gateway was opened to the prosecution, you might think, to prove, if they could, independently (by technological evidence and other evidence) that both accused were in the vicinity of the house that had been entered and that at least one, and possibly two, were actually inside.[15]
[15] Appeal Book Volume 1 page 69-70
That passage of the judge’s summing up was the subject of criticism by counsel for the appellant Baring, who contends that that passage was a misdirection in respect of Baring. He submits that there was no evidence from the tape-recording identifying Baring’s voice. It therefore follows that there was no evidence independent of the witnesses to place Baring inside the house. I will return to that submission later in these reasons.
The trial judge, having reminded the jury of the defence cases, then referred to the cross-examination of the appellant Leonard. He directed the jury:
You will remember, ladies and gentlemen, that Mr Preston, counsel for the prosecution, when cross-examining the accused Daniel Leonard, suggested that he, Leonard, had changed his story regarding the events at 18 June Street, Mansfield Park, at about 9.30 p.m. on 9 December 2002 when and because of what was apparent on the audio tape of the Jason Clark 000 phone call, which is said only to have come to light about a week into the trial when the tape thereof was examined, played, copied and tendered. Mr Preston went on to suggest that the accused Leonard in cross-examination was “caught in a lie”.
Make what you will of that piece of cross-examination and decide whether you conclude that that accused was “caught in the lie” or not and whether you will draw the inferences that were urged upon you.
There were other bits of cross-examination from which the same inferences could be drawn, and I refer, in this context, to some cross-examination regarding Janette Riley, Brett Faulkner, Rebecca Dunstall, Shaun Faulkner and Cristy Adams.
You would be entitled to conclude, ladies and gentlemen, that the prosecution witnesses were cross-examined in such a manner as to justify the conclusion on your part that the cross-examination on those occasions was in accordance with the instructions of the accused Daniel Leonard as given to his lawyers up to the time of that cross‑examination.
Cross-examination of the prosecution witnesses afforded an opportunity for the accused Leonard, through his counsel, to put forward the explanation which he intended to adopt as his defence position at trial. He was not obliged to do so, but the fact that he did so in that way may be seen by you as relevant in establishing that the explanation which he later gave (when he did give sworn evidence from the witness box as part of his defence case) was an exercise in moulding of the truth to suit his cause.
Ladies and gentlemen if there is a discrepancy to a significant extent between questions you conclude were based on instructions as inferred from questions such as “I put to you that (so and so)”, on the one hand, and the testimony of the person from whom the instruction must be taken to have come, on the other hand, it is open to you, as jurors, to have regard to the discrepancy in evaluating the evidence and assessing whether you accept the accused Leonard as a witness of truth or not.[16]
[16] Appeal Book Volume 1 pages 108-110
The appeal

The appellant Leonard complains about that direction. Insofar as the direction dealt with the original questions put to the witnesses and directed the jury that they were in accordance with the instructions of the appellant Leonard, that direction is unobjectionable. Furthermore, insofar as the judge directed the jury that they could conclude that the appellant’s instructions to his counsel had changed, that direction is unassailable.
In R v Robinson[17], the trial judge had suggested to the jury that they might be assisted in evaluating the evidence of the accused by comparing certain questions asked by his counsel of police officers which were inconsistent with the evidence of the appellant. It was suggested that the change between the evidence of the appellant and the questions which were put to police officers supported an inference that the accused’s account of events had fluctuated, and so his evidence should be regarded with reserve or disbelief. Dunn J, with whom Wanstall ACJ and Douglas J agreed, referring to cross-examining counsel’s questions of witnesses, said:
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 permissible 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).[18]
[17] [1977] Qd.R. at 387. See also R v Sargent (2001) 80 SASR 184 at 190; and R v Lander (1989) 52 SASR 424 at 435-426
[18] Ibid at 394
Counsel for Leonard complains about the way in which the judge dealt with this topic in that, firstly, the trial judge failed to put the accused Leonard’s explanation about the change of instructions. Secondly, it was unclear when the instructions were changed. Counsel also complains that, in directing the jury that it was a matter for them to decide whether they concluded that the accused was caught in a lie or not, and whether they drew any inferences adverse to the accused’s credit, the judge did not go on as he was required to do, to direct the jury that they should not follow a process of reasoning that just because a person is shown to have told a lie, that that is necessarily evidence of his guilt. Further, counsel submits that the jury should have been directed that, in determining the significance of the change of instructions, they should have had due regard to the accused’s explanation.
In Harris v The Queen[19], King CJ warned of the dangers of impermissible reasoning when considering lies told by an accused. He said:
Lies told by an accused person either to the police or in the witness box are likely to have an adverse effect upon the credibility of the accused as a witness. But even the total discrediting of an accused as a witness is not a substitute for evidence of the commission of the crime charged. Generally speaking “a case in which an accused gives untruthful evidence is no different from one in which he gives no evidence at all”: see Broadhurst v The Queen [1964] AC 441 at 457, per Lord Devlin. In that case Lord Devlin warns against the “natural tendency for a jury to think that if an accused is lying, it must be because he is guilty”. The circumstances in which the accused’s lies will have an effect transcending mere damage to his credibility and will constitute positive evidence of the commission of the crime have been discussed in the context of corroboration in the cases of R v Lucas [1981] QB 720 and R v Evans (1985) 38 SASR 344. The probative character of some lies rises from their tendency to indicate that they proceed from a consciousness of guilt on the part of the accused. Instances of lies of that kind are false denials of having been in the company of an alleged victim at a material time or of having been at the scene of the crime at a relevant time, made at a time when the accused could not have known, unless he was the culprit, that there had been any wrongdoing in connection with the alleged victim or at the scene of the crime. Even in such cases courts must be on their guard against collateral motives for telling lies, such as the desire to conceal from a spouse that the accused was in the company of the alleged victim or was at the scene of the crime. The circumstances in which lies told after an accused becomes aware that he is or might be under suspicion in connection with the crime can amount to positive evidence of the commission of the crime must be rare. The tendency of persons under suspicion to wish to distance themselves from the persons or events connected with the alleged crimes and to endeavour to improve their position by falsehood is far too common to enable an inference to be drawn with confidence, in any but the rarest of cases, that lies proceed from a consciousness of guilt. Unjust results can easily flow from a readiness to treat lies of an accused person as positive evidence of guilt …[20]
[19] (1990) 55 SASR 321
[20] Ibid at 323
In Zoneff v The Queen[21], Gleeson CJ, Gaudron, Gummow and Callinan JJ, drew a distinction between lies going to credibility, and those indicating guilt, that is, those indicating that the lie is evidence of guilt in the sense that it was told because the accused knew that the truth would implicate him in the commission of the offence. They discussed the risk of prosecuting counsel not making it clear whether the prosecution contends that lies constitute evidence of consciousness of guilt, or whether they go merely to credibility. In this case, it was not made clear by the prosecutor in his address how the jury were to consider the lie. The trial judge did not require the prosecutor to make clear how the prosecution sought to rely upon the alleged lies of the appellant Leonard. The trial judge, in summing up, left it to the jury on the basis that if they concluded that the appellant Leonard had told a lie, then they were entitled to have regard to that fact in evaluating his evidence, and whether they accepted him as a witness of truth. In that regard, the trial judge did not direct the jury that any particular lie stemmed from a consciousness of guilt. Nonetheless, without the clearest direction to the contrary, the jury could have reasoned that the appellant had changed his story and lied because he had committed the offence.
[21] (2000) 200 CLR 234 at 244
In Zoneff, the majority of the Court said:
A direction which might have appropriately been given and which would have allayed any concerns which the trial judge may have had, in this unusual case, in which the issues may not have been defined as they might have been had the prosecutor made a speech to the jury, is one in these terms:
“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 effect that just because a person is shown to have told a lie about something, that is evidence of guilt.”
A direction in such terms may well be adaptable to other case in which there is a risk of a misunderstanding about the significance of possible lies even though the prosecution has not suggested that the accused told certain lies because he or she knew the truth would implicate him or her in the commission of the offence.[22] [Italics are mine]
[22] (2000) 200 CLR 243 at 245
The trial judge should have directed the jury about the explanation of the appellant as to why he changed his story. He should have directed the jury that they should not conclude, if they find that the appellant had told lies, that it necessarily followed that he was guilty of the crime. The judge should have warned the jury not to reason that because the appellant Leonard had lied, he must therefore be guilty.
The unusual features of the trial required a careful direction from the trial judge. In particular, it was necessary to give a clear direction about how the jury should consider the topic of lies. It was essential that the jury be given directions about the process of reasoning they should undertake and, in particular, that it was an impermissible process of reasoning to conclude that because the appellant had lied that he, therefore, must be guilty.
The proviso
That then raises the question whether the misdirection could have resulted in a miscarriage of justice, that is, has the appellant lost a chance of an acquittal fairly open to him? Can it be said that no substantial miscarriage of justice has actually occurred?
The case against the appellant was very strong. There were a number of witnesses who recognised him. He was known to them. As it eventually transpired, the appellant Leonard admitted that he was at June Street at 9.30 p.m. and that he was demanding money. The question for the jury was whether they were satisfied beyond reasonable doubt that he entered the house, produced a weapon and threatened the occupants. In the end, identification of the appellant Leonard as one of the persons at the house was not in issue. The issue was whether he entered the house at all. As to that question, the jury had to be satisfied beyond reasonable doubt that he had entered the house and threatened the occupants.
The manner in which the trial unfolded focussed the jury’s attention on Leonard’s change of instructions. The trial was adjourned for three days. Upon the resumption of the trial, a supplementary opening was delivered by counsel which highlighted the fact that the appellant’s counsel’s suggestions to witnesses that the appellant was not present at June Street would be proved to be false. It was put that there was independent evidence of the appellant’s involvement in the crimes.
If there was any doubt in the jury’s mind that there had been a significant change in Leonard’s account of events, that doubt would have been extinguished during his cross-examination. It was not clear that there might be a doubt when the instructions had changed, and whether the change was related to the evidence of the triple zero call. In his address to the jury, the prosecutor stressed the importance of the evidence and the significance of the lies told by Leonard.
As strong as the Crown case was, I am not able to conclude that the jury may not have reasoned impermissibly. The inference that Leonard had changed his instructions and, therefore, had told lies became such an important feature in the case that it cannot be said that, even if the jury had reasoned impermissibly, that would have had no effect on the ultimate conclusion.[23]
[23] R v Collie (2005) 91 SASR 339
The decision as to whether or not to apply the proviso is often difficult. Views will differ amongst appellate judges who have not had the opportunity to see and hear the witnesses, or to obtain a complete understanding about how the case unfolded before the jury. It is a fundamental right of an accused person to be given a fair trial according to law.
The threshold for the application of the proviso is high. The observations of McHugh J in Krakouer v The Queen[24], and the observations of Brennan, Dawson and Toohey JJ in Wilde v The Queen[25], are apposite:
Unless it can be said that, had there been no blemish in the trial, an appropriately instructed jury, acting reasonably on the evidence properly before them and applying the correct onus and standard of proof, would inevitably have convicted the accused, the conviction must be set aside.
[24] (1998) 194 CLR 202 at 224
[25] (1988) 164 CLR 365 at 372
I cannot conclude that the error in the summing up has not resulted in a miscarriage of justice. I would allow the appeal and direct a retrial.
The appeal of Baring
It was conceded by counsel for the Crown that if Leonard’s appeal was allowed, it follows that Baring’s appeal must succeed. Leonard gave evidence at the trial that when he attended at June Street the appellant Baring was in the car but he did not leave the vehicle. In considering the case against Baring, the jury was required to consider the evidence of Leonard and assess his credibility.
In my view, if there is a risk that the jury incorrectly reasoned as to the guilt of Leonard, there is a significant risk that that process of reasoning could also have affected their deliberations in respect of Baring.
Even if that were not the case, the trial judge in directing the jury that the prosecution case was no longer reliant just upon the honesty and reliability of lay witnesses, and that there was evidence from which it could be proved independently that both accused were in the vicinity of the house and that at least one, and possibly two, were actually inside, was a misdirection. There was no identification of Baring’s voice on the so-described independent evidence of the tape. The jury were invited to consider that evidence as independent evidence implicating both Leonard and Baring. The jury were invited to conclude that there was independent evidence of the witnesses pointing to Baring’s presence in the house. There was no such independent evidence.
The jury may well have been influenced by the direction and, on that ground alone, I would allow the appeal in respect of Baring.
Conclusion
I would allow both appeals and set aside the convictions, and order that the matter be remitted to the District Court for a retrial.