R v El Adl

[1992] QCA 55

IN THE COURT OF APPEAL [1992] QCA 055

SUPREME COURT OF QUEENSLAND

C.A. No. 295 of 1991

THE QUEEN

v.

RASHA SAMY TAWFIK EL ADL

(Appellant)

JUDGMENT - THE COURT

Delivered the First day of April 1992

This is an appeal against the conviction of the appellant on five charges relating to the assault on, and terrorisation of, a girl at the Gold Coast on 12 November 1989.

The charges were of unlawful wounding, assault occasioning

bodily harm, deprivation of liberty, robbery in company and

indecent assault. It was common ground that the girl in

question (Lisa) was a victim of physical attacks by two girls

named Tanya Johnson and Tanya McAllister. Lisa gave evidence, as did Tanya Johnson and Tanya McAllister, that the appellant, also, was a party to the attacks upon her. The prosecution case was corroborated to some extent by an admission the appellant made in an interview with a police officer, Sergeant Obeid, that she hit the appellant. The appellant gave evidence that she was not involved in the commission of the offences, which were entirely committed by Tanya Johnson and Tanya McAllister; the appellant said she tried to protect Lisa.

It is not suggested that the jury's verdicts were unsupported by the evidence, but three points were taken.

Ground 2(b)

The first ground argued was that in summing up on the question of corroboration, the judge gave a wrong direction as to the use of lies allegedly told by the appellant. His Honour

referred to the provision in the Criminal Code which requires the jury to be warned of the danger of acting on the uncorroborated evidence of an accomplice: s.632. He said, and this was not challenged, that there was ample evidence which

could be corroborative of the evidence of the accomplices, Tanya Johnson and Tanya McAllister: he mentioned the evidence of Lisa

and the admission alleged to have been made by the appellant to
the police. His Honour went on:

"If you accept that that admission was made and was true, that also is evidence which you could regard as corroborative of the evidence of the two Tanyas. You have evidence to suggest that the accused told lies - principally to the Court when she gave her evidence. If you were satisfied that she was in fact telling lies and was doing that with a view to avoiding responsibility for any of these offences, provided you are satisfied that she did in fact tell lies, that may be corroborative of the accomplices' evidence".

This direction was said to be inadequate on two grounds: that

the jury was not directed in accordance with R. v. Lucas [1981]
1 Q.B. 720 at 724 and that the lies were not identified.

R. v. Lucas is authority for the view that lies, whether told in court or out of court, are capable of amounting to corroboration if they fulfil four conditions. To qualify, a

lie must:

1.be deliberate,

2.relate to a material issue,

3.be motivated by a realisation of guilt and a fear of

the truth, and

4.be clearly shown to be a lie by evidence other than

that of an accomplice who is to be corroborated

The test was treated as "well-established" by the

Court of Criminal Appeal in R. v. McK [1986] 1 Qd.R. 476 per

Thomas J. at 482 and has generally been applied since -

"generally" because it may be that the fourfold test is not always applied in all its rigour. An example appears to be The Queen v. Ho (Court of Criminal Appeal, unreported, 28 June 1990)

in which the relevant part of a summing up, set out at some

length in Demack J.'s judgment, was held to suffice although it did not appear strictly to conform with the requirements of R.

v. Lucas. In the present case, the learned primary judge's

direction was not, in our view, defensible: the jury was not told that to be corroborative the lie must be deliberate, nor

that it must relate to a material issue, nor that it must be

clearly shown to be a lie by evidence other than that of the accomplice who is to be corroborated. Nor were they told that it must be deliberate but, given that a lie is an intentional

falsehood, we are not convinced that this requirement is

essential. However, we think it desirable in order to emphasise to the jury that intentional quality. There was a misdirection;

a redirection was sought but his Honour seems to have overlooked the point. Further, and although R. v. Lucas does not say so, one would expect that ordinarily a lie which is suggested to be corroborative would be identified. Here, there was presumably some specification in counsel's address of the lies that the Crown relied on, but the proper practice is for

the summing up to state what are the particular pieces of

evidence which the judge directs the jury to treat as capable of

constituting corroboration.

Ground 2(c)

The second point taken was that the judge misdirected the jury with respect to an issue of flight. The passage in the summing up follows immediately upon that just dealt with and reads:

"You have evidence that she left the State the day after the events. Well, flight from the scene of a crime can be an indication of guilt. Obviously when you are considering that evidence, if you think that that (sic) leaving the State was genuine - that she had made arrangements and it was just coincidental that she was leaving the next day after this offence - well, of course, you couldn't regard it as in any way corroborative. All I can tell you is that flight - running away from the scene to avoid apprehension can be indicative of guilt".

The criticism advanced was that the jury was not told that the appellant's having left the State of Queensland the day after the events in question (as she did) should not be regarded as conclusive of guilt; R. v. Melrose [1989] 1 Qd.R. 572 was referred to.

The nature of the direction with respect to flight must depend in large measure on the circumstances. A sudden departure by a person who ordinarily stays close to home may

give rise to quite different inferences from those which could

be drawn from a journey by one who commonly moves about the country. The nature of the reasons, if any, given for the journey may also bear upon the proper conclusion to be drawn.

We would not regard R. v. Melrose as authority that the jury

must never be allowed to consider flight unless expressly told that it is not necessarily conclusive of guilt. Here, the judge said that flight can be an indication of guilt. That statement is correct and is plainly inconsistent with the notion that the

appellant's flight was conclusive of guilt.

In our opinion, the summing up was not, in this

respect, erroneous.

Ground 2(d)

The third point taken, by amendment to the notice of appeal, was that the judge failed to warn the jury of the danger of convicting upon the evidence of the complainant, a person suffering from a mental disability. No redirection had been sought on this point below.

There was clear evidence of such a disability, but unfortunately the extent of it, its relevant consequence and the relevant consequences of the treatment she was receiving were left obscure. The complainant gave evidence that she suffered

from schizophrenia. She said that disease can affect one's

memory and that it was affecting her memory as she gave evidence. She also said that she was taking largactil for her illness, 25 mg in the morning and 100 mg at night. A Dr. Vora,

who was called to give evidence about Lisa's injuries, said that largactil has effects on mental functioning and on recall of

events. When asked about the effect of the dosage the
complainant had said she was taking, the doctor answered:

"I guess for somebody - if you're referring to this patient, of her size - it would certainly be a dose that would effect (sic) her mental functioning".

The judge mentioned, in his summing up, the evidence
that the complainant suffered from schizophrenia and made brief

reference to the evidence relevant to the disease's effect on a person's memory, but did not specifically warn the jury that it was dangerous to convict because of that evidence.

As to the evidence of a schizophrenic witness, Gibbs

C.J. remarked in Bromley v. The Queen (1986) 161 C.L.R. 315 at

319:

"If it appears that a witness whose evidence is important has some mental disability which may affect his or her capacity to give reliable evidence, common sense clearly dictates that the jury should be given a warning, appropriate to the circumstances of the case, of the possible danger of basing a conviction on the testimony of that witness unless it is confirmed by other evidence. The warning should be clear and, in a case in which a lay juror might not understand why the evidence of the witness was potentially unreliable, it should be explained to the jury why that is so. There is no particular formula that must be used; the words used must depend on the circumstances of the case".

His Honour's reasons were agreed in by all but one of the other

judges who constituted the Court.

It is difficult to say what the judge could sensibly have told the jury by way of warning, in this case. No doubt the jury had an opportunity to form an impression of Lisa's mental abilities during her evidence in chief and cross- examination. To what extent should the judge have invited the jury to, so to speak, correct that impression by making

allowance for the effect of her mental disease and her having taken largactil? And what relevant effect should he have said

the mental disease or the taking of the largactil might have

had? The only specific evidence of effect was on her ability to

recall events. But the appellant's complaint about Lisa's evidence was not that she had forgotten some relevant event but that what she said about the appellant's involvement was untrue.

If the judge had so directed the jury as to induce them to think that the schizophrenia or largactil probably had an substantial effect upon the reliability of Lisa's evidence, he might have thereby misled them.

The problem of the degree of danger of acting upon the

evidence of a person who is mentally ill was dealt with in
Bromley by Brennan J.:

"If the mental disorder is quite trivial and transient, it may be quite irrelevant to the credit which might properly be given to the witness' evidence".

Here, it may fairly be assumed that Lisa's
schizophrenia was not a trivial complaint. But leaving aside
the difficulty that Lisa, presumably, was unqualified to speak

of the effect of schizophrenia, the judge had no means of knowing whether Lisa's mental abnormality was of such a degree

or its consequences or the consequences of its treatment were of

such a kind as to be likely to make her evidence unreliable.

Further, it might be suggested that Bromley's case is

inapplicable because there was some corroboration of Lisa's

evidence, consisting in the admission to Sergeant Obeid referred to above. It does not appear to us, however, that Bromley's

case should be read as not requiring a warning where there is partial or fragmentary confirmation of the evidence of the

person with the mental disability. Here, although the matters

complained of were all part of the same sequence of events, there were five separate charges and what was confessed to Sergeant Obeid could not have confirmed the evidence about all

five.

In our opinion, there was technically a misdirection

in that, in accordance with Bromley's case, the judge should

have warned the jury of the possible danger of basing a conviction on Lisa's evidence in view of the possibility that her mental disability or her having taken largactil might have

affected her capacity to give reliable evidence.

Application of proviso

The conclusions reached are that there was a misdirection with respect to two points, and the question arises whether by the misdirections the appellant may have lost a chance which was fairly open to her of being acquitted.

In our opinion, that question should be decided

adversely to the appellant.

As to the first misdirection, to the effect that lies

told may be corroborative, it appears unlikely to have had any

significance. There was ample corroboration of the evidence of the two accomplices in that of Lisa, who explained at length and

in detail what she claimed was done to her. There could have

been no objection to the judge's saying that if the jury found the appellant had told lies about some matters, that might

affect her credit generally and perhaps incline the jury to reject her version as a whole. There seems no real possibility that the judge's passing reference to the question of corroboration, when mentioning the relevance of any lies which the jury might have thought the appellant told, gave assistance to the prosecution.

In short, in our opinion, this slip in the summing up

was of no real consequence.

With respect to the matter of Lisa's mental condition,

the result is even clearer. No application for redirection was

made. If the judge had faithfully followed the requirement of Bromley's case, the jury would have been little the wiser, for

the reason which has been mentioned: that neither the evidence

from Lisa nor that of the doctor provided any means of assessing

whether and if so to what extent the jury should have treated Lisa's evidence as suspect because of her schizophrenia or

having taken largactil. A direction in terms of Bromley's case

while (as it seems to us) required by the reasons there given,

could not have been of any real help to the jury.

There was ample evidence to support the verdicts. The

appeal should be dismissed.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 295 of 1991

THE QUEEN

v.

RASHA SAMY TAWFIK EL ADL

(Appellant)

__________________________________________
Mr. Justice Pincus Mr. Justice Davies Mr. Justice Thomas
__________________________________________

Judgment of the Court delivered on 1st April

1992.

__________________________________________

Appeal against conviction dismissed.

__________________________________________

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 295 of 1991

Before the Court of Appeal

Mr. Justice Pincus

Mr. Justice Davies

Mr. Justice Thomas

THE QUEEN

v.

RASHA SAMY TAWFIK EL ADL

(Appellant)

JUDGMENT - THE COURT

Delivered the First day of April 1992

MINUTE OF ORDER: The appeal against conviction is dismissed.

CATCHWORDS: CRIMINAL LAW - MISDIRECTION AND NON-DIRECTION - Appellant convicted of inter alia assault - whether direction in relation to corroborative lies accorded with R. v. Lucas - whether judge ought to have directed as to the evidence of schizophrenic witness - whether in any event appellant lost fair chance of acquittal.

Counsel:	J. Costanzo for the Crown A. Rafter for the Appellant
Solicitors:	Director of Prosecutions for the Crown Legal Aid Office for the Appellant
Hearing Date(s):	4 March 1992