R v Gene David Scorringe

[2009] NSWDC 241

CITATION:	R v Gene David SCORRINGE [2009] NSWDC 241
JUDGMENT DATE:	21 April 2009
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	There is an appropriate basis for a consciousness of guilt submission by the Crown Prosecutor
CATCHWORDS:	CRIMINAL LAW - jury trial - application by Crown Prosecutor to include consciousness of guilt argument in closing address - whether answers given in cross-examination amounted to lies
CASES CITED:	Edwards v The Queen (1993) 178 CLR 193 R v Lucas [1981] QB 720 R v Spathis [2001] NSWCCA 476
PARTIES:	Regina Gene David Scorringe
FILE NUMBER(S):	2008/2276
COUNSEL:	Ms C Dobraszczyk Mr L Brasch
SOLICITORS:	Director of Public Prosecutions Legal Aid Commission of NSW

JUDGMENT

1. The Crown Prosecutor has put certain propositions to the accused when he gave evidence. She put to him that in response to three questions in his record of interview with the police he lied. He has admitted that he lied in each instance but explains why he chose to tell lies to the police. The Crown Prosecutor went on to put to the accused that the reason for his three lies was a consciousness of guilt. Understandably she now wants to include that argument in her address which she is about to commence.

2. Mr Brasch who appears for the accused argues that certainly in relation to one of the responses by the accused, and perhaps in others, his response did not amount to a lie. Without going into detail, the nature of the response given by the accused in the record of interview was not inconsistent with the Crown case. Mr Brasch argues that a lie must be independently demonstrated not to be the case. He says, further, that it therefore needs to be inconsistent with the Crown case. It follows, he said, that the answers provided by his client in cross-examination cannot amount to lies.

3. I do not agree with his submission. In Edwards v The Queen (1993) 178 CLR 193 Brennan J (as his Honour then was) quoted from the judgment of the Lord Lane CJ in R v Lucas [1981] QB 720 at 724. The passage cited by Brennan J concerned what must be satisfied before a lie could be regarded as corroboration. The fourth element was that "the statement must be clearly shown to be a lie by evidence other than that of the accomplice who is to be corroborated, that is to say by admission or evidence from an independent witness."

4. In the New South Wales Court of Criminal Appeal decision of R v Spathis [2001] NSWCCA 476, the Court described a direction on lies given by David Kirby J, the trial judge, as “exemplary” (at [362]). One of the passages so described included Kirby J telling the jury that a way of telling a lie "is for the person to admit that they may have lied."

5. In my opinion, what the Crown Prosecutor has obtained from the accused in cross-examination are admitted lies and therefore are capable of forming the basis of a submission by her, which was also put in cross-examination, that he lied arising from a consciousness of guilt.

6. I therefore am of the opinion that there is an appropriate basis for such a submission by the Crown Prosecutor.

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