R v Grosser

R v GROSSER
[1999] SASC 302

COURT OF CRIMINAL APPEAL: Doyle CJ, Duggan and Wicks JJ

DOYLE CJ. In my opinion the appeal should be allowed, the convictions should be set aside and a new trial should be ordered. I agree with the reasons given by Duggan J for so concluding.
DUGGAN J.

Introduction

The appellant was presented for trial in the Supreme Court on an information charging him with the attempted murder of Derrick Anthony McManus, a police officer. The second count, which was an alternative to the first, alleged that the appellant wounded Constable McManus with intent to do him grievous bodily harm. There were a further five counts which alleged that the appellant endangered the lives of various police officers.

According to the prosecution case, the offences took place on 3rd May 1994 in the course of a siege by police officers of a farmhouse which the appellant was leasing at Nuriootpa. The police officers went to the house on the afternoon of 3rd May 1994 in order to execute a warrant for the appellant’s arrest following his failure to attend the Adelaide Magistrates Court to answer fraud charges. In view of information in the possession of the police which will be referred to later in these reasons, Star Force officers took part in the attempt to execute the warrant for the appellant’s arrest.
The officers approached the farmhouse. The appellant, his partner Lorraine Bailey and their children were in the farmhouse with him at the time. Some of the police officers approached a door situated on the northern side of the house. Constable McManus went to the north-western corner of the premises. According to the prosecution case, police officers knocked on a side door of the house and called out to the appellant. They said they were police officers and that they wanted to speak to him. Constable McManus then walked around the corner to the rear of the premises and, with his shoulder against the wall, moved towards a glass sliding door. He said he was holding a pistol at his side and a device, similar to a jemmy, in his other hand. There was a gap in the curtains in the vicinity of the handle of the sliding door. The prosecution alleged that as Constable McManus reached towards the door the appellant opened fire from inside the house. He fired a volley of shots from a semi-automatic rifle and Constable McManus was hit by at least six bullets. He suffered serious injuries to his abdomen, legs and left arm.
There was a question at trial as to who fired first, although the appellant agreed in cross-examination that he was the first to fire. Constable McManus returned fire and staggered to an area on the southern side of the house where he lay waiting for assistance. The appellant then fired shots through various doors and windows on the northern side of the house. Police reinforcements arrived and the house was surrounded. Eventually the appellant climbed into a cavity in the roof of the house and continued shooting towards the outside of the house through air vents and gables in the roof. The prosecution claimed that the appellant shot towards various police officers thereby endangering their lives. The evidence disclosed that the appellant fired over 1,000 rounds of ammunition. The police returned fire from time to time. During the siege Lorraine Bailey left the premises with her children and walked over to some of the police officers. Constable McManus was rescued approximately three hours after he was shot. The appellant eventually surrendered to police. The police found a number of firearms in the house and a quantity of ammunition which was located in various parts of the house.
The accused was convicted on the count of attempted murder and the five counts of endangering life. The learned judge imposed one sentence in relation to all counts, namely, imprisonment for 22 years with a non-parole period of 18 years. The appellant has appealed against the convictions and sentence.

The appellant’s version

The appellant claimed that throughout the incident at the farmhouse on 3rd May 1994 he had acted in self-defence. He said he was unaware that the persons who had come to the house were police officers. Instead he believed that it was a man named Cass and his associates. He said he had become aware that Cass, who was associated with criminals, was out to kill him and he said that he believed his life was in danger.
In the course of his evidence the appellant explained the background of his involvement with Cass in considerable detail. The appellant said his uncle had become involved in various illegal activities. He paid protection money to police officers on behalf of his uncle. He met various people who were engaged in illegal activities and he named them in his evidence. They included the man Cass. He said that as a result of contact with corrupt police officers and criminals he became aware of various activities in which they were involved.
From time to time the appellant gave information to the police, the NCA and Whistleblowers Australia about the alleged activities of police officers and persons he described as “the Mafia”. He met Cass and became aware of the sort of man that he was. He heard Cass say that he had a .44 Magnum revolver. He also heard Cass say that he was going to make a bomb to use against the South Australian police. Cass told him he had shot two drug dealers. The appellant told the police about the bombing plans. The appellant said that in mid 1993 he was told by one of the criminals he had met that some men from Queensland were looking for him in order to kill him. In October 1993 he was told Cass was going to shoot him. He was told that Cass wanted to kill him because he had given information to the police about Cass.
According to the appellant, he heard gun shots outside his house in February 1994. He reported the matter to the police. He said that on 2nd March 1994 a bomb went off at the NCA headquarters in Adelaide and two nights later he heard people walking around his property. He told the police he could assist them with their enquiries into the bombing. The appellant claimed that he was genuinely concerned about the threats that he would be killed by criminals and he did not want any accidents to occur. It was for this reason, he said, that the police agreed they would give three short blasts on their sirens if they came to the appellant’s gate. He said that on one occasion they followed this procedure. The appellant said he rang one of the criminals in April 1994 after he had heard that he was going to be “hit”. He was given to understand that “the hit was on”.
The appellant then described the events of 3rd May 1994. He was due to appear in court on that morning in relation to the fraud charges. He said he was feeling unwell and he went to his doctor to see if he could obtain a certificate to explain his intended non-attendance at court. The doctor gave him a letter to send to the court. It was in the following terms:
“This gentleman has a mixture of physical problems with his neck but with a large functional (psychogenic) component to his symptoms. He has been referred to a psychiatrist. There is no physical reason why he should not be able to attend court.”
According to the appellant he saw a white car which seemed to be following him as he made his way home from seeing the doctor and attending to other matters. Then at about 11.30 or midday he saw a similar car drive slowly past his front gate. He took photographs of it. He then drove out onto the road and the car came up behind him, although it kept some distance away. He returned home. Later, while he was inside the house, he said he saw a man outside. He could see only his outline. The curtains in the room the appellant was in were closed except for a small gap near the door handle. The man was holding something out in front of him which looked like a gun. He said he thought it was Cass and that Cass had come to kill him. The appellant ran and got a gun. He continued his evidence:
“A.... Well, there was a gap in the curtain of about roughly a foot and I could see part of a person and I could see what I thought was a 44 magnum revolver. That’s what I saw.
QWho did you think it was?
A...... I thought it was Cass.
QWhat happened.
A...... I fired immediately.
QCan you tell us the direction in which you fired?
A...... I fired - well, because I turned around, the gun was in the wrong position. I had the gun across my body at waist height and when I came back around I saw this rough outline of a person with a gun and I fired before the gun was in position, low and to the left of this person that was at the door.
QDo you mean low and to your left as you were looking towards the back of the house, or do you mean something else?
A...... Low and to my left.
QWhat happened?
A...... Well, I was in great fear, I was in terrible fear. I just fired the gun. I intended to fire the gun to protect the life of my wife and children and myself. It was an evil man at my door.
QCan you say how many times you fired?
A...... No, I can’t accurately.
QWhat weapon did you have?
A...... I fired a number of shots, low and in that area.
QWhat weapon did you have?
A...... I had an SKK, it had 60 rounds of ammunition on it and I fired a number of them.
QWhat did you see happen?
A...... Well, I didn’t see much happen at all. All I saw happen was a hole come through the glass and something hit me in the head around that period of time.
QCould you tell what it was or not at that stage?
A...... No.
QCould you tell whether any fire was coming at you, apart from that?
A...... Not really, no.
QDid you fire again?
A...... Well, I fired a number of shots to stop this person shooting us. I did fire again later, because somebody was still shooting us - at us.
QHow much later was that, just to identify it?
A...... I don’t really know about the period of time, but it was a very short period of time.
QYou say you were hit by something?
A...... That’s right.
QHow did that make you feel. What effect did that have on you?
A...... It stunned me. Something hit me in the head and stunned me, and it stunned me to the effect that I still can’t remember what happened there for a few seconds.
QDid you see the man outside?
A...... Not at that time. I’d only seen him previously.
QDid you see him at any stage after that?
A...... No.”
The appellant maintained that throughout the afternoon and until he surrendered he exchanged gun fire with those outside believing that they were Cass and his associates and that his life was in danger. He said that when he was firing from inside the roof he had a poor view. He did not aim at anything. The appellant claimed that at all times throughout the incident at the farmhouse he was acting in self-defence.

Psychiatric evidence

The defence called psychiatric evidence at the trial. It was argued that the evidence was relevant to the appellant’s state of mind at the time of the incident and that it was of particular relevance to the defence of self-defence. Dr Westmore, a psychiatrist, examined the appellant in January 1996. The appellant gave Dr Westmore an extensive history of his involvement with the police and the persons referred to in the summary of the defence case which I have set out above. Dr Westmore formed the opinion that the appellant’s mental state was disturbed and that he had “a predominance of persecutory ideation or persecutory ideas”. He said that he thought this would have been the appellant’s mental state on the day of the incident. He added:
“... either he was the victim of an extraordinary complicated and complex series of acts against him or he has a severe personality disorder, with strong ideas of persecution.”
Dr Westmore said that if the history given by the appellant was completely or partly untrue, then it was his view that he suffers from a severe paranoid personality disorder. He said this is not regarded as a mental illness, but rather an extreme of personality function. He said people suffering from this condition genuinely believe what they are recounting.
Dr Westmore explained the difference between a person with a paranoid personality and one suffering from paranoid psychosis. The person with a paranoid psychosis completely loses touch with reality and entertains delusional beliefs. The delusions are fixed and unshakeable. Someone in a psychotic state such as this has ideas which have no basis in reality. On the other hand a person with a paranoid personality disorder has ideas of persecution but those ideas are based on events which are possible or probable. The person with a paranoid personality simply carries them to an extreme beyond which the general community would accept as being the norm. In Dr Westmore’s opinion the appellant was at the extreme end of the personality disorder spectrum. This view was based on the assumption that what the appellant said about matters such as the role of criminals in his life was incorrect. Dr Westmore said that he could not provide any insight as to what the appellant actually believed in relation to who was outside his home at the time of the incident.
The defence also called another psychiatrist, Dr Clayer. He examined the appellant in 1992 as well as after the incident on 3rd May 1994. Dr Clayer expressed the following opinion:
“On the basis of the contact with Mr Grosser in 1992, I found that many of his allegations were corroborated, either by Ms Bailey or by the police. And that there was no evidence of a delusion disorder. However, in retrospect, and taking into account the points that you’ve just told me to assume, I believe that he was probably exhibiting what is known as paranoid ideation, and paranoid ideation is, in fact - ‘ideation’ is just a fancy psychiatrist’s word for thinking, and it is thinking that is less than delusional in its proportion but involves suspiciousness or the belief that one is being harassed, persecuted or unfairly treated. It’s more like an exaggerated perception of events. Following my contact with Mr Grosser in 1992 I feel that there was an escalation of this paranoid thinking, so that it became more involved and caused him to write the enormous amount of communications that he sent to various people, including perhaps the people that you’ve told me to assume that he wrote to.”
It was necessary for the jury to evaluate this evidence when considering the appellant’s state of mind at the time of the incident on 3rd May. The defence indicated a preference for the view of Dr Westmore. But on either view the possibility of paranoia was relevant to the beliefs which the appellant entertained throughout the incident.

The defence of self-defence

At the time of the alleged offences the law relating to self-defence was to be found in s15 of the Criminal Law Consolidation Act 1935. This provision has now been repealed. In so far as is relevant to the present case s15(1)(a) provided that:
“a person does not commit an offence by using force against another if that person genuinely believes that the force is necessary and reasonable -
(i) to defend himself, herself or another.”
It was pointed out by Cox J in Hirschausen v Brady (unreported, JN S3823, 25/1/93) that the test “looks not so much to what is necessary and reasonable but to the defendant’s belief on the subject”. When the defence was raised the section required the court to consider -
“Whether the prosecution had excluded as a reasonable possibility that the accused genuinely believed in the need to use force and whether he believed the force to be necessary and reasonable.” (Branson v SA Police Force (1993) 60 SASR 325 at 328).
The appellant claims that the directions in the summing-up on self-defence were inadequate in a number of respects. The learned trial judge commenced his directions on this topic by advising the jury that it was the duty of the prosecution to prove that the shooting was unlawful. He explained that this requirement gave rise to a consideration of self-defence. He continued:
“The accused has said that in shooting he was defending himself, Lorraine Bailey and the children. That is the essence of the defence to all charges. If the accused genuinely believed he was firing in self-defence, and that the firing was necessary and reasonable to defend himself, Lorraine Bailey and the children, then what he did was not unlawful. The Crown would have failed to prove the second element of crime and, therefore, the accused should not be guilty of attempted murder, the crime which we are now considering.
Having said that, I must emphasise this; - the accused does not have to prove that he acted in self-defence. The accused does not have to prove anything. It is the Crown which must prove to you beyond reasonable doubt that the accused did not act in self-defence and, therefore, the shooting was unlawful.
If you think it a reasonable possibility that the accused was acting in self-defence as I have explained, then the Crown has not proved that he acted unlawfully.”
The trial judge returned to the topic of self-defence when discussing the psychiatric evidence. He said:
“The psychiatric evidence goes to the accused’s state of mind. That is crucial to his defence. His defence at this trial is that he believed Cass was at the door to kill him and that Cass had a gun. What the accused did was in his own defence, in self-defence. Because this is crucial, I want to remind you again of the law on self-defence. This is the law for you to apply in deciding on the guilt or otherwise on each of the seven charges. The accused has raised self-defence as his defence to each charge. You must, therefore, consider self-defence in relation to each count.
If the accused genuinely believed he was firing in self-defence and that the firing was necessary and reasonable to defend himself, and, on the first two counts, Lorraine Bailey and the children as well, then what the accused did not was unlawful. As the Crown must prove that what the accused did was not unlawful, then if you think it a reasonable possibility that the accused did believe he was firing in self-defence and that it was reasonably necessary to defend himself, the Crown would have failed to prove the unlawfulness of the accused’s actions.
I remind you yet again that the accused does not have to prove anything. He does not have to prove he acted lawfully. The burden of proof remains always on the Crown to prove the case against the accused.”
The first criticism which is made of these passages is that the jury might have understood them as implying an objective test in relation to necessity and reasonableness. I cannot accept this submission. I think the jury would have understood that the reference in the directions to genuine belief was related to the phrase “was necessary and reasonable to defend himself” in the first passage quoted above and the phrase “was reasonable and necessary to defend himself” in the second passage. The use of the pronoun “himself” in each passage assists in making clear that it is the appellant’s belief in necessity and reasonableness which is relevant. It would have been preferable for the trial judge to put some stress on the appellant’s belief as being the touchstone for the defence. His Honour might also have added that the matter was not to be judged by reference to some objective standard. However I do no think these additional directions were essential.
Then it was argued that the onus of proof in relation to self-defence was not adequately put to the jury in the directions which I have quoted.
The trial judge told the jury that the Crown had to prove beyond reasonable doubt that the accused was not acting in self-defence. He also referred to the converse proposition, namely, that if the jury considered it a reasonable possibility that the accused was acting in self-defence, the prosecution would not have proved that he was acting unlawfully. I do not agree with the appellant’s submission that it was necessary for the trial judge to add that it was for the Crown to negative self-defence.

Further directions on self-defence were given after discussion with counsel when the jury retired. The trial judge dealt with self-defence in relation to unlawful wounding and then discussed the defence in a more general way. He said:
“The wounding - and this is what I said before, and I read it out to make it complete - the wounding is unlawful in the sense that the accused had no lawful reason to inflict it. If he were acting lawfully, if you find, think it a reasonable possibility that he believed he was acting in self-defence, in other words, if the Crown has not proved beyond reasonable doubt that the accused did not believe he was acting in self-defence, if you think there is a reasonable possibility that he was acting lawfully, then he is not guilty of unlawful wounding.
The essential difference between wounding with intent to do grievous bodily harm and unlawful wounding is that with unlawful wounding the prosecution doesn’t have to prove an intention to cause a really serious injury.
The final point is this. It’s another point which I may not have made clear. It doesn’t matter who the accused thought it was outside the window - Cass, the police, or anyone else. If you think it a reasonable possibility that he acted in self-defence, that he genuinely believed he was firing in self-defence and that the firing was necessary and reasonable to defend himself, Lorraine Bailey and the children, then you should find him not guilty on counts one and two. Likewise, on counts three to seven, even if the accused thought it was someone other than Cass and his associates outside and there is a reasonable possibility that he was acting in self-defence, then he is entitled to be found not guilty on counts three to seven. In this regard, consider most carefully the evidence of Dr Westmore. However, there is no evidence that the accused did think it was other than Cass and his associates.”
Although it would have been desirable, in my view, for the trial judge to stress that it was the plaintiff’s belief which was relevant to all considerations, I do not think it can be said that the direction was incorrect.
In summary, therefore, I consider that the jury received adequate instructions on the relevant legal aspects of self-defence and that they were properly directed as to the onus of proof in relation to this issue.
Next it was argued that the relevance of the psychiatric evidence to self-defence was not adequately explained to the jury. As I have pointed out, in presenting its case before the jury the defence relied more on the evidence of Dr Westmore than that of Dr Clayer. Dr Westmore’s evidence was of potential relevance to the appellant’s state of mind which was, in turn, relevant to the jury’s consideration of self-defence. If the appellant suffered from a severe paranoid personality, his perception that he had received threats was relevant to his claim that he thought it was Cass or some other person with criminal intent outside the house armed with a gun with intent to do him harm. However, Dr Westmore’s view was based on the premise that the appellant’s history of the threats was completely or partly untrue.
The learned trial judge dealt at considerable length with the views expressed by the two psychiatrists. He quoted extensively from their evidence in the course of his directions. When he first discussed this evidence he did not refer specifically to self-defence. He said the evidence was “an important factor when determining guilt or otherwise on each of the counts”. However the passages quoted from the evidence of the psychiatrists at this point in the summing-up include questioning which linked the appellant’s mental condition to the events on the day of the alleged offences.
At a later stage in the summing-up the trial judge returned to the topic of the psychiatric evidence. His Honour said he would deal only with the evidence of Dr Westmore because this was the evidence upon which most reliance had been placed. He then gave the direction which is set out in para 23 above. In this direction, the trial judge explained that the psychiatric evidence was relevant to the appellant’s state of mind which, in turn, was crucial to the defence case and, in particular, self-defence. This was followed by further quotation from Dr Westmore’s evidence. The passage related to the witness’s view as to the appellant’s state of mind on the occasion of the alleged offences. Finally, the trial judge in his re-directions to the jury in the passage set out at para 27 summarised the relevant aspects of self-defence and told the jury that, in this regard, they had to consider very carefully the evidence of Dr Westmore.
These directions were given against the background of addresses which dealt in considerable detail with the relevance of the psychiatric evidence to self-defence. The psychiatric evidence was not complex. Its role in determining the appellant’s state of mind was readily understandable. The importance of the appellant’s state of mind in relation to self-defence was clear enough. In these circumstances I think it must be said that, by the end of the summing-up, the jury would have been well aware of the nature of the assessment which was required by them when considering self-defence and the relevance of the psychiatric evidence to that assessment. In my view the directions were adequate.
The appellant’s version of events was also summarised in considerable detail for the jury and I am of the view that the summing-up as a whole equipped the jury adequately to consider the issues relevant to the defence. (Domican v The Queen (1992) 173 CLR 555 at 560-561).

Evidence of bad character

The appellant complained of the admission of various items of evidence led by the prosecution which, in the submission of the appellant, had a tendency to disclose that he was a person of bad character. The grounds of appeal relevant to these issues render it necessary to consider whether these items of evidence were relevant and, if so, whether they had a prejudicial effect which outweighed their probative value to the extent that the evidence should have been excluded in the exercise of the trial judge’s discretion.
The prosecution claimed that the impugned evidence was relevant for a number of reasons, including proof of motive. It was argued that the evidence explained the nature of the relationship between the appellant and the police and disclosed animosity by him towards the police. Furthermore it was said that some of the events which occurred not long before the siege supported the prosecution argument that the appellant was determined not to appear before the court and that he was ready for the police when they arrived at his house.
The effect of the prosecution case was that the events of the siege on 3rd May 1994 were the result of a connected series of events which commenced in mid 1991. It was at this time that the police commenced investigations into the appellant’s alleged involvement in the growing of marijuana. Shortly thereafter, the appellant began making complaints about police corruption and about the behaviour of police officers involved in the investigation against him. Subsequently fraud charges were laid against the appellant. According to the prosecution, the appellant was determined that the charges against him would not proceed to trial. He attempted to secure immunity in exchange for information and then, according to the prosecution case, started to advance excuses as to why he should not attend court to answer the charges. On the prosecution case these attempts culminated in the appellant failing in his attempt to be excused from attendance on the day of the siege after he had unsuccessfully attempted to obtain a medical certificate. It was said that he was prepared for the police when they came for him in order to execute the warrant for non-attendance. The prosecution contended that an important aspect of the relationship between the police and the appellant over this period was the alleged animosity which the appellant had for the police.
The relationship between the appellant and the police was an essential part of the case. It was inevitable, for example, that the jury should be told that the appellant was on fraud charges and that he had failed to attend court on the day of the siege. But, as I have attempted to explain, the relationship was also of particular significance to the prosecution case in that it was argued that the evidence established a relevant attitude towards the police (cf R v Wilson (1970) 123 CLR 334) and a preparedness to go to extreme lengths to avoid being taken before the court. The admissibility of the evidence must be considered against this background.
It is convenient to deal first with the appellant’s objection to evidence of the circumstances in which he was arrested on the fraud charges on which he was due to face court on the day of the alleged offences. The arrest took place on 16 July 1992. Police officers stopped the vehicle which the appellant was driving. They found a loaded military assault rifle in the vehicle and, when they took him the appellant to his home, they discovered a number of firearms which he had placed in various positions throughout the house near doors and windows. Each weapon had a live round in the breech and was ready to fire. All the weapons were seized.
Subsequently the police commenced proceedings to have the appellant’s firearms licence cancelled on the basis that he was unfit to hold such a licence. The licence was revoked in due course. The appellant filed a complaint with the police complaints authority in relation to this incident. He had provided a considerable amount of information to the police up to this time, but he had not mentioned Cass to them before the incident on 16th July. After the firearms were confiscated and the firearms licence cancelled, the appellant made a concerted effort to have the licence reinstated.
It was the case for the prosecution that this evidence established that the appellant had prepared for a siege as early as July 1992. From mid 1991 onwards he had made a number of complaints about the behaviour of police officers investigating matters in which he was allegedly involved. According to the prosecution, the seizure of the weapons and the cancellation of the licence fuelled the appellant’s animosity towards the police.
In my view the evidence relating to the arrest and confiscation of the firearms was clearly admissible. It provided support for the prosecution argument that Cass had nothing to do with the appellant’s actions on the day of the alleged offences. He had made no mention to the police of Cass up to this time. Furthermore the evidence tended to establish pre-meditation on the appellant’s part. There was a further argument that the removal of the weapons and the application for the cancellation of the firearm’s licence was an important factor in his continuing relationship with the police up to and including the date of the alleged offences. The probative value of this evidence was not outweighed by any prejudicial effect it may have possessed.
A further complaint was made concerning the admission by the trial judge of evidence relating to a search of the appellant which was carried out at the Adelaide Magistrates Court on 2nd December 1993. The appellant complained subsequently that the sheriff’s officers who conducted the search assaulted him. They denied that this was the case. The appellant’s then solicitor was present at the time of the search. He was called at the trial and did not support the appellant’s version that the appellant was held around the neck and choked during the search. In April 1994 the appellant claimed that a police officer had told the sheriff’s officers to “rough him up” during the search. This was the first time this allegation had been made. Again, this incident and the subsequent statement about the alleged involvement of a police officer were of relevance in establishing the relationship which existed between the appellant and the police. In my view, the evidence was admissible and there was no good reason for excluding it in the exercise of the court’s discretion.
Next it was argued that the learned trial judge erred in admitting evidence of allegations made by the appellant in relation to certain police officers. It was the prosecution case that these allegations were unfounded. I reject the argument that this evidence was unfairly prejudicial to the appellant. The Crown was entitled to argue that the making of these allegations was part of a pattern of behaviour embarked upon by the appellant to assist his cause. On 6th September 1991, five days after he was told he would be reported for drug offences, the appellant made complaints against certain police officers. He continued making these complaints and there was evidence that he made an unsuccessful attempt to gain immunity from prosecution for charges laid against him. The prosecution claimed that the allegations were false and that they were made vindictively and as a result of the appellant’s attitude towards the police. The jury were entitled to accept that this conduct was a consequence of the appellant’s attitude towards the police and that it was therefore relevant to his actions on the day of the alleged offences. In my view it was open to the prosecution to prove that the complaints were false in that, if they were, this demonstrated the extent of the appellant’s animosity towards the police.
The directions which the learned trial judge gave to the jury in relation to some of these matters was also criticised by the appellant. Prior to the commencement of the summing-up the trial judge was asked by counsel for the defence to warn the jury about the misuse of evidence which might indicate bad character. His Honour gave the following direction:
“Next, I mention the evidence we have heard that there were 197 fraud charges pending against the accused. That the accused wanted to delay the hearing in the Adelaide Magistrates Court of the charges was the reason really why all this happened.
The police went to 96 Moppa Road with a warrant for his arrest, so that he could be brought before the court for the hearing to begin. As there has been no trial and as, so far as we know, the accused has made no admissions, the charges against the accused of fraud have not been proved, yet even the fact that he has been charged may lead you to think that he is not a man of good character. Put it the other way; you may think the very fact of the charges shows him to be of bad character. Even if that is how you think, then you should not let that influence you, for this reason. Fraud, and the offences with which the accused is charged in this court, are totally different. Just because a man may be dishonest doesn’t mean to say that he will attempt to commit murder or to endanger life. So, put the fact of the fraud charges out of your minds. It is not relevant to his guilt or otherwise on the seven counts in this court.
The fact of the fraud charges was not the only thing that we heard about the accused which may lead you to think poorly of his character. I mention, as other examples, the report that the accused had threatened his wife’s life, that he had been on a cannabis charge or charges, the firearms offences he had committed, the matters of which Chief Inspector Attwood spoke; the accused’s reputation for making cars disappear, the rumour that he was going to set up the police to come to his house and shoot the first one who appeared.
You must not - because it would be unfair to the accused - use any of these things as evidence of the accused’s guilt on the seven counts to reason that, because he may have done all or some of these things, that it means he is guilty of any of the counts you are considering. Please, put them out of your minds.”
At the conclusion of the summing-up the Crown prosecutor requested the trial judge to give the jury further directions on this issue and to explain that no inference adverse to the appellant was to be drawn from the fact that the appellant had been charged with the offences. The Crown prosecutor also pointed out that the jury should be told of the proper use to which the evidence could be put.
When the jury were recalled the following directions were given:
“The next matter is this. I gave you a direction on the fraud charges and other matters concerning the accused. Please forget what I said then, because I give you this fresh direction.
The only relevance of the fraud charges is that it provides part of the history leading to the events which took place on 3 May. The only use you may make of the evidence of the fraud charges is as background to what happened on that day. Otherwise, you should draw no inference at all against the accused from the fact of the fraud charges, such that he was a man of bad character, that because he had been charged with these offences and the other offences which I mentioned he is more likely to have committed the offences on 3 May.
Now, I was going to put in there something. Can either of you gentlemen remind me what I was going to say there?
MR BARRETT: In relation to the other topics.
HIS HONOUR: The other charges, that’s right. I think this was the part that I should repeat to you. Gentlemen, tell me if this not the part, but I think it is.
The fact of the fraud charges is not the only thing which we heard about the accused which may lead you to think poorly of his character. I mention, as other examples, the report that the accused had threatened his wife’s life, that he had been on a cannabis charge or charges, the firearms offences he had committed, the matters of which Chief Inspector Attwood spoke - the accused’s reputation for making cars disappear, the rumour that he was going to set up the police to come to his house and shoot the first one who appeared. None of those things are relevant to his guilt on these charges.
There is another matter relevant to this which I should mention. It concerns the events of 16 July 1992. That is the day on which the accused was arrested on the fraud charges. I didn’t remind you of it, and perhaps I should have, that a loaded weapon was found in his car. I did remind you that a number of weapons were found in the house. Now, the use you may make of that evidence is, first, to explain why the accused came to be charged with possessing a loaded firearm and why his and Lorraine Bailey’s firearms [licences] were cancelled and, secondly, the evidence is also relevant because, on the prosecution case, it tends to rebut any suggestion that he had the firearms in his house on 3 May 1994 to protect himself from Cass or other underworld figures.
Prior to 16 July 1992, the Crown case is that the accused had not made any complaint about being in fear of his life, and he had the firearms to resist the police if they came on the property. The defence case, on the other hand, is that the accused was already in fear.”
The trial judge then went on to quote a passage from the appellant’s evidence-in-chief in which the appellant said that he had been informed by a police officer that a former police officer organised criminals to break into homes and terrify people. This evidence was given by the appellant when explaining why he had placed the firearms in various locations around his house in July 1992.
In my view it would have been appropriate for the trial judge to give more assistance to the jurors by reminding them in more precise terms as to how the items of evidence were relevant by way of background and to establish the nature of the relationship between the appellant and the police. However, he did explain the relevance of the evidence as to the possession of the firearms in some detail. As I have pointed out this evidence was relevant to the prosecution’s contention that the appellant had taken these measures before any complaint had been made of threats from Cass. It was open to the jury to reject the appellant’s explanation that he was told about the police officer organising criminals and to conclude instead that the appellant was really preparing to resist the police if they came onto the property. The re-directions covered the use to which the evidence of the possession of the firearms could be put and reminded the jury of the appellant’s answer to the prosecution case in this respect.

In my view the re-directions were sufficient to meet the requirements of the case. Mr Tremaine placed some stress on the fact that the re-directions were given two hours after the jury had retired. However it is relevant to note that the verdicts were not given until the following day.
Mr Tremaine also pointed out that the trial judge referred on each occasion to the “firearms offences he [the appellant] had committed” whereas the true position was that the appellant had been convicted of a firearm offence involving the possession of the loaded firearm in his vehicle at the time of the earlier arrest but this conviction had been set aside and a retrial ordered. However, I cannot agree that this would have resulted in any real prejudice to the appellant. The jury knew that the appellant had been in possession of a loaded firearm on this earlier occasion. The fact that it might have been an offence to be in possession of the firearm is not a matter which was of significance in relation to the charges before the jury. There was no suggestion that the appellant used the firearm to commit any other offence on the occasion of the charge of possession. The offence related to his possession or control of the firearm.
For these reasons I am of the view that the grounds of appeal relating to the previous conduct of the appellant should be dismissed.

Lies allegedly told by the appellant

At the request of the prosecution the learned trial judge directed the jury that lies told by the appellant in relation to three topics were capable of being used as independent evidence of guilt. The appellant argued that the alleged lies were not capable of being used for this purpose and that, even if they were, the directions on the topic were inadequate.

The white car

In the first place the prosecution relied on alleged lies told in court in relation to a white car which the appellant said he saw in the vicinity of his house on the day of the alleged offences. He said that at this time he was living in fear and the car created suspicion in his mind. He took a photograph of the vehicle. There was evidence led that the white vehicle was an unmarked police car in which two police officers were travelling. It was the prosecution case that the appellant knew that the vehicle was a police car and that a claim by the accused that Cass might have been in the vehicle was false.
According to the evidence of the appellant he saw the white car as he was driving home from a trip to Nuriootpa. He said he had seen the vehicle earlier in the day when he was washing Lorraine Bailey’s car. It was driving slowly past his front gate and he took a photograph of it. He said that when he went into Nuriootpa he thought the same vehicle was following him and, as he was returning home, he saw it on the road behind him. It was shortly after his return home on this occasion that a party of police officers arrived at the house.
The two police officers who were in the vehicle at the relevant times gave evidence of their movements. They said that they passed the appellant’s vehicle along the road near his home. The appellant said in cross-examination that he did not see the white vehicle pass him although it was pointed out that at the time he was travelling along a minor dirt road. He said that he did not know that the police officers were the occupants of the white car until Lorraine Bailey told him that this was the case when she came into the hospital to see him after the siege.
The prosecution called a journalist, Mr Power, who said that the appellant telephoned him approximately a week after the siege. Mr Power took notes of the conversation at the time. He said that in the course of the conversation the appellant said:
“The police had no reason to come at all. I had been in hospital after Monday’s court and faxed the court saying I was going to a psychiatrist and would attend the court when I could. I had just come home from town, Nuriootpa, and saw all the cops there. He, Norm, a big fat cop with a beard, followed me in a white Commodore, he was in the passenger seat, right to my driveway at Moppa Road and he kept going and waved to me. If they had come saying they were cops, or had rung, I would have gone willingly.”
Mr Power denied that the appellant told him that Lorraine Bailey had passed this information on to him. The alleged lie which was left by the trial judge to the jury as being capable of amounting to independent evidence of guilt was the statement made by the appellant in evidence that he did not know who was in the white car.

The manner in which the pistol was held

The next alleged lie relied upon by the prosecution as indicating consciousness of guilt concerned the appellant’s account of his observations from inside the house as Constable McManus was moving along the side of the house and approaching the glass sliding door. There were curtains on the inside of the door and, according to the evidence of McManus, there was a gap of about 12 inches in the curtains adjacent to the door handle. The police officer was shot as he approached this door.
The learned trial judge read to the jury the passage from the appellant’s cross-examination which was said to have contained a lie:
“Q.   Could you see any part of that person in the gap in the curtains?
A.     Only what I thought was the 44 magnum.
Q.     So you could see a weapon, is that correct?
A.     That's correct.
Q.     You could see the weapon in the gap in the curtains?
A.     I could.
Q.     Where was it pointing?
A.     It was pointing in the general area of the house, into the house.
Q.     But you couldn't see the person holding the weapon?
A.     Not clearly, no.”
According to the evidence of Constable McManus he drew his pistol after he alighted from a police vehicle. The pistol was in his right hand.   He said that he approached the brick wall of the house. He said “I would have brought my pistol up closer to the brick wall”. He then stated, as he moved along the wall, his pistol was down by his right thigh, close to his pocket. He carried a jemmy in his left hand.   His evidence continued:
“A.As I approached the door, I was a short distance from it, I reached out towards the door and my hand would have been some 12 to 18 inches from the door handle itself.
Q.     What were you trying to do at that stage?
A...... I was trying to find out whether that door was open or closed, or locked or unlocked.
Q.     Was your left side facing the house?
A.     It was.
Q.     Was your pistol still in your right hand?
A.     It was.
Q.     Was it raised or down by your side?
A.     Down by my side.
Q.     What happened when you reached out?
A...... As I reached out, for some reason I started falling forward and I couldn't work it out until I was halfway to the ground and I saw holes in the door and it was at that time I realised I had been shot.”
Another police officer, Constable Baldwin, who was watching this side of the house through binoculars from a position 70 or 80 meters away from the house gave evidence that Constable McManus had the gun in his right hand and the jemmy in his left as he approached the door. He said McManus was on a slight angle with his left shoulder blade against the wall. He saw McManus move the jemmy out towards the door and it was then that the gun fire started from inside the house.
The trial judge told the jury that if they believed the accounts of the police officers, it was open to them to conclude that the appellant had told a deliberate lie about the weapon pointing into the house. The jury were told that they could use this evidence as independent evidence of guilt.

Who shot first?

The third lie alleged by the prosecution arose from the assertions by the appellant as to who shot first.   The appellant said in evidence that he thought the person at the sliding door was Cass. He said he, the appellant, fired immediately.   He was cross-examined about this aspect of the incident:
“Q.   Who shot first - you or the police?
A...... Well, do you want to know about what I thought at the time or what I know now?
Q.     What's your memory?
A...... My memory of this incident was that it was touch and go, it was hard to work out who fired first.
Q.     What's your recollection of who fired first?
A.     Well, at the time I thought the person outside may have fired first.
Q.     What gave you that impression?
A.     The hole coming through the glass that I saw.
Q...... So, at the time of the incident you thought that the person outside fired first?
A.     It was very, very close, but it was a possibility in my mind.
Q...... But at the time of the incident you thought that the person outside fired first?
A.At the time of the incident I didn't know.
Q...... You didn't know?
A.I was terrified. I wasn't worried about -
Q...... You didn't know whether you fired first or the person outside fired first, is that what you're saying?
A.At the time that this incident happened, happened so quickly, I didn't have time to work things out. I only thought about it later and I thought there was a good chance that the other person had fired first.”

After further cross-examination the appellant agreed with the prosecutor that he had fired first.

This topic was also mentioned by the appellant in the telephone conversation with Mr Power, the journalist. According to Power, the appellant said that “he [the appellant] wanted the world to know that the police had fired first and he shot the man at the window after he had fired six shots into the house”. Power said that the appellant also told him “somebody started shooting at me through a window. It was the police who fired first”.
The trial judge also drew attention to the evidence of a scientist who looked at a video recording of the incident taken by the police and expressed the view that the first sounds of firing on the tape are consistent with coming from the rifle being used by the appellant.
After reminding the jury of this evidence the trial judge said:
“Now, you may think from all this that the accused lied in his evidence-in-chief when he said ‘The figure outside fired first’. If you do, then this is the third lie identified.”

The jury were told that if the conditions referred to in the summing-up were satisfied, they could also use this evidence as independent evidence of guilt.

Directions on the law relating to lies

The learned trial judge gave general directions on the use of lies as independent evidence of guilt which, in so far as the directions went, were based on Edwards v The Queen (1993) 178 CLR 193. His Honour said:
“Another matter of law on which to direct you concerns the telling of lies. You, first of all, before what I'm going to explain becomes relevant, must have found that the accused has told lies. I shall explain the law on lies and then link it to the evidence by giving three examples of occasions on which you may think that the accused has lied.
You may, but it is for you, come to the conclusion that the accused has lied either in court, in his evidence or on some occasion out of court, and that the reason for lying was his knowledge and consciousness of his guilt. It's open to you to infer that the accused entertained a consciousness of guilt, if, but only if, you are satisfied beyond reasonable doubt that what the accused said were lies: that what he said was not only untrue but that the accused knew at the time of saying it that it was untrue, and that the only logical explanation for the accused's telling lies was a consciousness of guilt: that the lies revealed a knowledge of some aspect of what happened, and that they were told because the accused knew that the truth would implicate him. You may only properly arrive at that conclusion if you are satisfied that there is no reasonable hypothesis open other than that the lies were told with a consciousness of guilt. If you are so satisfied you are entitled to use the accused's consciousness of guilt as evidence of his actual guilt. However, lies told by an accused person in or out of court do not, of themselves, necessarily constitute evidence of guilt. They may merely bear adversely upon that person's general credibility. Commonsense and experience tells us, that there may be many reasons for lying. Sometimes, for example, a person may lie because of panic or fear that the simple truth is may sound feeble or a feeling that he may not be believed. An accused may lie for reasons irrelevant to the charges. Sometimes an accused may lie for what appears to be no rational reason at all. There is a variety of possible motives for falsehood and this must always be carefully borne in mind in making an assessment.”
His Honour dealt at length with the evidence relevant to the three categories of alleged lies relied upon by the prosecution. He then repeated the effect of his earlier general directions on this topic.
After the jury retired the prosecution and defence requested the trial judge to further direct the jury on the topic of lies. His Honour then recalled the jury and directed them as follows:
“You remember that I identified three matters on which you may come to the conclusion that the accused has lied; the question of the white car, the man pointing the gun from outside inwards through the door, and who fired first. Now, I gave them as lies, if you find them to be, which you may conclude were indicative of a consciousness of guilt. And they are the only matters during the trial which you may use in this way. Earlier I said they were examples. That was wrong. They are not examples. They are the only matters which you may consider in this way. You may think that the accused has told other lies. Well, if you do, please remember what I said to you; that lies told by an accused in or out of court do not, of themselves, necessarily constitute evidence of guilt. They may merely bear adversely upon the general credibility of the accused. The only lies in this trial which are capable of indicating a consciousness of guilt are the three I have identified. As to each of them, as I said in summing up, you must be satisfied beyond reasonable doubt that what the accused said was a lie, that what he said was not only untrue, but that he knew at the time of saying it that it was untrue, and that the only logical explanation for the accused telling lies was a consciousness of guilt; that the lies revealed a knowledge of some aspect of what happened and were told because the accused knew that the truth would implicate him.
I also remind you of what I said earlier; that there may be many reasons for lying. I will mention them again. Bear them in mind in considering the three matters - the white car, the gun pointing inwards, and who fired first.
Common sense and experience tells us that there may be many reasons for lying. Sometimes, for example, a person may lie because of panic or fear that the simple truth may sound feeble, or a feeling that he may not be believed. An accused may lie for reasons irrelevant to the charge. Sometimes an accused may lie for what appears to be no rational reason at all. There are a variety of possible motives for falsehood and this must always be carefully borne in mind in making an assessment. It is only if you consider they were told out of a consciousness of guilt that you may use them as evidence of guilt. That is all I say to you on lies.”
Courts of Appeal have frequently expressed concern about reliance by the prosecution on alleged lies to provide independent evidence of guilt when such reliance is inappropriate. (R v Sutton (1986) 5 NSWLR 697 at 701; R v Heyde (1990) 20 NSWLR 234 at 236; Harris v The Queen (1990) 55 SASR 321 at 323, 325 and R v Webb and Hay (1992) 59 SASR 563 at 577). In R v Heyde (supra at 236) Gleeson CJ recalled the comment made by Street CJ in R v Sutton (supra) that reliance by the prosecution on lies as collateral conduct providing evidence of guilt is “fraught with the risk of miscarriage”.
The proper approach to the relevance of lies by an accused was explained by King CJ with typical clarity in Harris v The Queen (1990) 55 SASR 321 at 323 when 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.” (emphasis added)

(See also Edwards v The Queen supra at 210f).

It follows that lies can provide independent evidence of guilt if they are of such a nature as to constitute implied admissions. It is the fact that they are told from a consciousness of guilt which results in them being implied admissions. (R v Renzella [1997] 2 VR 88 at 91).
In Edwards v The Queen Brennan J dissented on the result of the case but, along with the other members of the court, he referred to the limited circumstances in which lies could be used as positive evidence of guilt. He said (at 201):
“Whether the making of a statement proved to be false is capable of amounting to a confession depends on the terms of the statement, the circumstances in which it is made, the nature of the offence charged and the other evidence in the case. It may be that in some cases the falsity of a statement which is exculpatory in terms could give to the accused’s conduct the character of a confession, but such a confession would be an admission by conduct. When the supposed admission consists in the making of a false denial of guilt, the prosecution is hard put to turn the denial into an admission. As Lowe J. said in Edmunds v. Edmunds and Ayscough [1935] V.L.R. 177 at p186:
‘[B]y no torturing of the statement “I did not do the act” can you extract the evidence “I did do the act”.’
Burbury C.J. was equally cautious in Lonergan v. The Queen [1963] Tas. S.R., at p 160:
‘The jury must clearly understand that it is only within strict limits that false statements and denials may be relied upon as independent proof of the affirmative of the issue.’
If the prosecution were to rely on the telling of a lie as an independent proof of guilt, the jury would have to be directed that, in order to convict on that basis, they must be satisfied beyond reasonable doubt that the true inference to be drawn from the accused’s conduct is that he has confessed his guilt. In such a case, the jury would have to be satisfied beyond reasonable doubt as to Lord Lane’s third test, for the accused’s conduct could not otherwise amount to a confession of guilt. It would surely be a rare case in which it would be permissible to infer beyond reasonable doubt that an accused, by telling a lie, has confessed his guilt. Generally, the jury is directed that the accused should not be convicted merely because he has told a lie.”

In the light of these considerations it is difficult to see how any of the three instances relied upon by the prosecution in the present case could have satisfied the requirement necessary for admissions against interest. There is a clear distinction to be drawn between lies which provide positive evidence of the commission of a crime and lies told by an accused to improve his or her position in the face of allegations.
The white car incident was undoubtedly relevant to the genuineness or otherwise of the appellant’s claim that he did not know the police were outside when he started firing. According to the prosecution case, the appellant would have had concerns and expectations that the police would call on in him on the day on which the relevant events took place. He had failed to attend court and he had seen some activity around the police station when he went into Nuriootpa. It was argued by the prosecution that if the appellant had seen the two police officers following him home and then driving past his gate it might well have heightened suspicion that the police were about to visit him.
This argument was obviously open to the prosecution in their challenge to the appellant’s claim of self-defence. However it is quite another thing to say that if the appellant lied by saying that he did not realise the occupants of the white car were police officers, this lie constitutes an implied admission of guilt. In my view it does not. It is simply an attempt to improve his position in relation to the facts upon which one of the prosecution arguments was based. The lies on this issue, if they were told would be relevant to the appellant’s credibility, particularly in relation to his claim of self-defence. But they would hardly amount to an admission of guilt.
I have the same concerns about the other matters relied upon by the prosecution to support implied admissions of guilt. As appears from the evidence quoted above, Constable McManus said that his gun was down by his side as he approached the gap in the curtains at the sliding door. He said he had the jemmy in his other hand as he reached towards the door with that hand to see if it was open. The appellant gave conflicting evidence when he said he saw the gun pointing in towards the room in which he was standing.
There is an initial problem about using this conflict to prove that the appellant impliedly admitted guilt in that the evaluation as to whether the appellant’s statement was a lie depends upon the credibility and the accuracy of the observations of the relevant witnesses. The evidence of Constable McManus as to his movements was challenged by the appellant. The only other evidence in relation to this matter came from Constable Baldwin. In my view difficulties arise when the evidence to establish the lie comes from a witness or witnesses with an interest to be served such as the other party to an altercation in which self-defence is claimed. Such conflicts arise in many self-defence cases. At the very least the need for caution in evaluating such evidence should be pointed out to the jury. Furthermore the possibility of error in the making of observations during an incident such as this should be raised with the jury. (cf Edwards v The Queen supra at 211). No directions of the type which I have identified were given in the present case. But the more fundamental difficulty is that lies told in circumstances such as these to bolster up a claim of self-defence do not necessarily involve an admission that the person telling the lies is guilty of the offence.
When discussing the third alleged lie the trial judge advised the jury that the appellant had said in his evidence-in-chief that “the figure outside fired first”. However the appellant was not as dogmatic as that statement suggests. The appellant said that when he saw what he thought was the revolver pointing towards the door he fired immediately. In the passage from the appellant’s cross-examination on this topic which is quoted above, the appellant said it was hard to work out who fired first. He said that, at the time, he thought the person outside may have fired first. He said it was “very, very close, but it was a possibility in my mind”. He then said that at the time of the incident he really didn’t know who fired first. He said things happened so quickly he didn’t have time to work it out. When he thought about it later it occurred to him that there was a good chance that the other person fired first.
The prosecution contrasted these statements with what the appellant said in the telephone conversation with Mr Power, the journalist. According to Mr Power the appellant said “he wanted the world to know that the police had fired first and he shot the man at the window after he had fired six shots into the house”. Power said that the appellant also told him “Somebody started shooting at me through a window. It was the police who fired first”.
It would appear that the learned trial judge incorrectly identified the occasion of the alleged lie upon which the prosecution was relying by referring to what the appellant said in evidence-in-chief. The appellant’s evidence is somewhat vague, but in it he seems to accept that he fired first, although he said that his appreciation at the time of the incident was that the person outside may have fired first. The prosecutor in his submissions to the trial judge and in his address to the jury relied not on what was said in court as the lie, but on what the appellant is alleged to have said to Mr Power.
But even if the evidence of what was said to Mr Power is relied upon as constituting the lie, I have the same misgivings about the use of this evidence for a purpose beyond that of credibility as I have about the issue of the position of the gun. When the appellant was speaking to the journalist after the incident took place he obviously wanted to put himself in the best possible light. The appellant rang the reporter from James Nash House where he was being detained and the appellant’s statements are heavily charged with emotion and self-serving observations. The statements were relevant to his credit but, in my view, they could not be regarded as being in the nature of implied admissions of guilt. Again, if anything, they were being used to bolster up the appellant’s claim that he had acted in self-defence.
It might be said that if the alleged lies upon which the directions were given could not satisfy the test referred to in Edwards’ case which was explained to the jury by the trial judge, then no harm would have been done because they would not have used the evidence in an impermissible manner. However the jury were given to understand that lies of this nature were capable of answering the test. The concept of lies told from a consciousness of guilt is not an easy matter for jurors to grasp and, having been instructed that these lies were potential sources of independent evidence of guilt, the jury might well have been more ready to accept them as such.
There is another difficulty in that, whether or not the lies could be used for the stated purpose, the jury were given no instructions on the circumstances obtaining in the present case which might render it inappropriate to treat proved lies of this nature as independent evidence of guilt. The course adopted by the trial judge was to give general directions on the use of lies as evidence of guilt and then refer to the evidence itself without further comment. The need for general directions in a case of this nature to be related to the facts in an adequate manner was referred to in Edwards’ case (supra at 211) where reference was made to Lonergan v The Queen [1963] Tas SR 158 at 166. In Lonergan’s case Burbury CJ observed (161):
“It is important in the case of a direction of this kind that it should be clearly related to the evidence. It can only be clearly understood if it is applied and explained in relation to the specific false denial or statement relied upon as constituting corroboration. It is always important to relate directions in law to the facts of the case before the jury but particularly is this so in the case of a direction as to the use which may be made of certain pieces of evidence. A general direction as to the circumstances in which false denials or statements may afford independent testimony of an affirmative issue is not likely to be apprehended by the jury as an abstract proposition. It is open to the criticism of Cussen J. ‘that it is of little use to explain the law to a jury in general terms and then leave it to them to apply the law to the case before them’. (See also Alford v Magee (1952) 85 CLR 437 at p466; and Masnec v The Queen [1962] Tas. S.R. 254).”
If the summing-up had dealt with the manner in which it was suggested the lies might have given rise to an inference of guilt, then I think the practical consequence referred to by Doyle CJ in R v Ellis (1998) 100 A Crim R 49 at 50 would have resulted. The Chief Justice said:
“In the present case the trial judge identified the lies quite accurately, but did not assist the jury by explaining how that lie might or might not give rise to the inference that the prosecution suggested should be drawn. Had that been done in specific terms, I think it likely that the difficulty of drawing the inference would have been immediately apparent. The judge might then have directed the jury that it would be unwise to act upon the prosecution’s submission, or at least might have been moved to add a number of cautionary remarks about the process of drawing the necessary inference.”
It was the Chief Justice’s view in that case that “the relevant lies were either ‘intractably neutral’ (compare Power (1996) 87 A Crim R 407 at 409) or, if capable of supporting an inference of guilt, they could do so only subject to very careful warnings to the jury”.
In my view the invitation to the jury to consider using the evidence of alleged lies in this manner caused the trial to miscarry. The lies and their potential use as independent evidence of guilt were given considerable prominence in the prosecutor’s address and in the learned trial judge’s summing-up. Approximately 20 pages of the summing-up (including the further directions) were devoted to the topic. The fact that the jury were recalled for further directions on the topic increased the prominence given to it. I think the jury would have been left with the impression that this was an important part of the prosecution case. They were instructed that the evidence of these three incidents, if it passed the test in each instance, could be used as evidence of guilt which was provided by the appellant through his own statements.
In my view it cannot be said that the evidence was not misapplied and that there was no risk of a miscarriage of justice.

Evidence of medical treatment provided to Constable McManus

One of the grounds of appeal asserts that the learned trial judge erred in admitting evidence of the medical treatment which Constable McManus received after the day on which the injuries were inflicted. The nature of the injuries inflicted was relevant to the ascertainment of the intention of the appellant, an issue which was relevant, in turn, to the charges of attempted murder and wounding with intent to cause grievous bodily harm. I do not agree with the argument that any probative value which the impugned evidence might have possessed was outweighed by some prejudicial effect. This ground of appeal must be dismissed.
I would also reject the further argument that the verdicts were unsafe for reasons other than the directions relating to lies. The jury were entitled to reject the appellant’s version that he thought Cass and not the police had approached the house. It was open for them to reject the claim of self-defence despite the psychiatric evidence. It was open on the evidence for the jury to find that the respective states of mind required for attempted murder and endangering life had been proved.
However, for the reasons which I have given on the grounds relating to the issue of lies, I am of the view that the appeal against conviction should be allowed, the convictions quashed and a new trial ordered.
In the circumstances it is unnecessary to consider the appeal against sentence.
WICKS J. I agree with the orders proposed by Duggan J for the reasons he gives.

[1999] SASC 302

23 July 1999