R v Ho - [2002] NSWCCA 147

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Dat Quoc HO [2002] NSWCCA 147

FILE NUMBER(S):
60589/01

HEARING DATE(S): 29/4/02

JUDGMENT DATE: 29/04/2002

PARTIES:
Dat Quoc HO (Appellant)
Regina (Respondent)

JUDGMENT OF: Meagher JA Hidden J Bell J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 00/21/0122

LOWER COURT JUDICIAL OFFICER: Naughton DCJ

COUNSEL:
P M Strickland (Appellant)
P G Ingram (Crown)

SOLICITORS:
D J Humphreys (Appellant)
S E O'Connor

CATCHWORDS:

LEGISLATION CITED:
Crimes Act 1900

DECISION:
Appeal dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60589/01
MEAGHER JA
HIDDEN J
BELL J
29 April 2002

REGINA v DAT QUOC HO

Judgment

MEAGHER JA: The Court is now in a position to give judgment. Bell J will give the first judgment.
BELL J: On 18 June 2001 the appellant was arraigned before the District Court at Parramatta on an indictment charging him with two counts arising out of the same incident. The first count charged that on 10 July 1999 at Auburn he assaulted Tak Ming Lo while armed with an offensive weapon (a handgun) with intent to rob him. The second count charged that on the same date and place being in company with Quoc Phu Ho and a person unknown he robbed Pik Chun Yin of certain monies the property of Tak Ming Lo. Both charges were brought under s 97(1) of the Crimes Act 1900 (“the Act”). The appellant entered a plea of not guilty to each count. A jury was empanelled and he stood his trial. On 22 June the jury returned its verdicts. The appellant was acquitted of the offence charged in count one and convicted of the offence charged in count two.
The maximum penalty for the offence of robbery in company is one of twenty years imprisonment. On 23 August 2001 the appellant was sentenced to a term of three years imprisonment to commence on 22 June 2001 and expire on 21 June 2004. A non-parole period of eighteen months was specified. The first date upon which the appellant will be eligible for consideration of release to parole is 21 December 2002.
By his notice of appeal, dated 28 August 2001, the appellant signified his intention of appealing both against his conviction and of seeking leave to appeal against the severity of the sentence imposed upon him. By notice dated 22 March 2001 the appellant abandoned the application for leave to appeal against the severity of sentence.
Tak Ming Lo owned a butchery, the “Tak Ming Meat Market” at 84 South Parade, Auburn. His wife, Pik Chun Yin, worked with him at the shop. On Saturday 10 July 1999 Mr Lo and Mrs Yin closed the shop at about 6:30 pm. Mrs Yin counted the takings and placed them in her backpack. The sum amounted to approximately $35,000.
At about 7:30 pm Mrs Yin and Mr Lo walked from the rear of the shop towards their car. Mrs Yin was wearing the backpack. As they reached the car which was parked in the rear yard Mr Lo realised that he needed to take some goods back to the shop. Mrs Yin waited by the car while he returned to the shop.
Three men entered the rear yard of the premises. One of them, a man referred to by the appellant as “Den”, took hold of Mrs Yin’s backpack and attempted to pull it from her shoulder. The two other men went towards the back of the shop. Mrs Yin held onto the backpack and screamed. She was dragged into the lane at the rear of the shop (Vales Lane) by the man, Den. The straps of the backpack gave way and Den took hold of it and ran off down the lane.
Mr Lo heard his wife screaming as he emerged from the back door of the shop. He was confronted by two men of Asian appearance. He was not able to see his wife, but he could hear her screaming. One of the men pointed a gun at him. Mr Lo pushed the gun away and ran to the back lane. It was the Crown case that the appellant was one of the two young Asian men who confronted Mr Lo with the gun. As Mr Lo entered the back lane he saw another man push his wife to the ground, taking her bag. The two men who had confronted Mr Lo ran past him and joined up with the first man. Mr Lo and Mrs Yin gave chase but one of the men turned around and pointed a gun at them. They then lost sight of the three men.
The man described by the appellant as Den was not apprehended.
The duty manager at the Auburn Village Tavern heard Mrs Yin’s screams. He looked out one of the windows at the Hotel and saw a woman who appeared to be distressed across the road near Vales Lane. He saw three or four men entering a vacant lot through a hole in the fence. He alerted police in a nearby vehicle to the incident. They promptly attended the scene and spoke with Mrs Yin and Mr Lo. Arrangements were made for the Dog Squad to attend and to search the vacant lot. The accused and his brother were apprehended in the lot.
The accused participated in an electronically recorded interview conducted by Detective Goddard (“the interview”). In the course of the interview he said that he was acquainted with a man named Den. The two of them used to drink beers together at a pub. He said that Den asked him for assistance in recovering the sum of about $700 that he was owed by Mr Lo for whom he had worked. Den promised to pay the appellant $200 for his help in this regard. On the afternoon of 10 July Den telephoned the appellant and said, “tonight, I want to bash the shop owner”. The appellant said that he had agreed to assist him. The appellant, his brother, Quoc Phu Ho, and Den drove to the butcher shop. The appellant and his brother approached Mrs Yin asking her about her husband. She began to yell. The appellant took hold of her and tried to talk to her. The appellant said that his brother told him that Den had grabbed the handbag. He saw Den pull out a gun, point it and try to pull the trigger. He held Mr Lo’s arm asking him to tell his wife to stop screaming. The appellant, his brother and Den then ran away. In the interview the appellant said that he did not know that Den was going to rob anyone. He did not know that Den had a gun until he produced it that night. He had not taken hold of the backpack, nor did he have any knowledge of the whereabouts of the money.
The appellant did not give evidence at his trial.
The man Den was not apprehended. The appellant’s brother died of leukaemia prior to the proceedings coming on for trial.
The appeal against conviction is advanced upon two grounds both of which complain of directions given by the trial judge during the course of the summing up.
Ground One – His Honour erred in directing the jury on the burden and standard of proof
The direction complained of is as follows:
“The onus and standard of proof is an important matter for you to consider. The Crown must prove the essential elements of the alleged offences, and it must do so to the standard, that means to the degree, of beyond reasonable doubt. The standard, or degree, of proof is not beyond any doubt. It is beyond reasonable doubt. If you have a reasonable doubt about the guilt of the accused in respect of either count you must find him not guilty on that count. If you are satisfied beyond reasonable doubt about the guilt of the accused on either count you must find him guilty on that count.
The accused does not have to prove anything. He is presumed innocent till proved guilty. That means proof beyond reasonable doubt of the essential elements of the alleged offences. Your task is not one of simply making a choice between the evidence of Mr Lo and Mrs Yin on the one hand and what the accused told the police on the other hand. This is not a case of Mr Lo and Mrs Yin versus Dat Quoc Ho, as in a civil case where monetary damages are claimed and where the case is decided on the balance of probabilities. This is a case of the Queen, that is why we use the word “Regina” the Latin for Queen, abbreviated to R, versus Dat Quoc Ho brought on behalf of the community or the public, or society if you prefer, for the purpose of upholding the criminal law. It is a case of whether you, the jury, as the representatives of society, are satisfied that the Crown has proved its case against the accused beyond reasonable doubt notwithstanding, or despite, what the accused has said to the police” (SU at 5).
The appellant’s counsel objected to the form of this direction at the conclusion of the summing up. The transcript records the following exchange on this topic:
“COOK: Your Honour, there’s one matter, well there are a number of matters but the first matter I submit with respect requires a discharge of the jury and that is this. Your Honour told the jury early in your summing up about the onus and standard of proof. Your Honour referred to the essential ingredients or elements being proved beyond reasonable doubt. Your Honour then said that the degree of proof required is not beyond any doubt by way of, in my submission, contrasting that with beyond any reasonable doubt. That I submit with respect is a direction which should not be given. The High Court in the case of R v Green, (1972) 46 ALJR 545, is authority for the proposition that it is now accepted in New South Wales that generally no attempt ought to be made to explain ‘beyond reasonable doubt’. This phrase contains three ordinary every day words which should be given their ordinary every day meaning. Your Honour in my respectful submission has contravened that principle by telling the jury what ‘beyond reasonable doubt’ does not mean by way of in effect clarification of its meaning. So that is my submission. That is the first …
HIS HONOUR: I do not need to hear you on that, Mr Crown, I reject that submission” (SU at 39).
It is to be noted that at the conclusion of his application for redirections Mr Cook returned to this topic:
“COOK: Your Honour could I say this and I will be very brief. If your Honour is against me about discharging the jury on the first point …
HIS HONOUR: I have already said I am against you …
COOK: I would ask your Honour …
HIS HONOUR: There is no ‘if’ Mr Cook, it has already occurred.
COOK: I would ask your Honour in the alternative to withdraw the direction and to tell the jury that the meaning of the words is a common, ordinary, everyday expression.
HIS HONOUR: No I will not do that. I do not think it is necessary” (SU at 41).
Mr Strickland, who appears on the appellant’s behalf, contends that the direction was flawed for two related reasons. Firstly the directions departed from the traditional formula in that it contained an inappropriate elaboration on the meaning of the phrase “beyond reasonable doubt”. Secondly, it is said to have been confusing such as to have had the real potential to mislead the jury. This latter challenge takes up the concluding portion of the direction in which his Honour observed:
“It is a case of whether you the jury, as representatives of the society, are satisfied that the Crown has proved its case against the accused beyond reasonable doubt notwithstanding or despite what the accused said to the police.”
Mr Strickland submitted that this direction conveyed that the jury should disregard altogether “what the accused said to the police” in deciding whether the Crown had proved its case. The interview was a crucial piece of evidence in the Crown case. It contained both exculpatory and inculpatory statements. The jury was obliged to assess the contents of the interview.
The first aspect of Mr Strickland’s challenge is the matter to which trial counsel directed the judge’s attention, namely the direction:
“the standard, or degree, or proof is not beyond any doubt. It is beyond reasonable doubt” (SU4).
Mr Strickland complains that this statement constituted a misdirection in that it departed from the traditional formula and amounted to an attempt to explain or qualify the standard of proof. It was said to suffer the vice identified by the High Court in Green v The Queen (1971) 126 CLR 28 in that it attempted to explain the content of the standard of proof partly in terms of that which did not constitute a reasonable doubt.
In Green the Court reviewed the authorities dealing with the directions to be given in a criminal trial upon the onus and standard of proof. After citing passages from Dawson v The Queen (1961) 106 CLR 1, Thomas v The Queen (1960) 102 CLR 584, Brown v The King (1913) 17 CLR 570, the Court observed:
“Those quotations are but some of many admonitions to judges presiding over criminal trials to adhere to and not to attempt needless explanations of the classical statement of the nature of the onus of proof resting on the Crown.”
The direction complained of in Green was in these terms:
“Now I take you now to the burden of proof. The burden of proof, as you well know, is on the Crown, and it is on the Crown in respect of every issue in respect of every element of the crime. Well now, before you say that you are satisfied for the purposes of a verdict about any issue, you of course have to reach a certain degree of satisfaction in your mind, and what degree of satisfaction must be reached? The answer is that you must be satisfied beyond reasonable doubt, and that is a time honoured phrase and is usually thought to do very good work in seeing that nobody is convicted of a serious crime unless the court that tries him is satisfied of his guilt beyond reasonable doubt. And you may say, ‘well, how do I know when I have got to a stage of being satisfied about something beyond reasonable doubt?’ and the answer to that is that it is when you have reached the stage that you either have no doubt at all, because if you have got no doubts at all you must have got rid of all reasonable doubts; or if there is something nagging in the back of your mind which makes you hesitate as to whether you are satisfied beyond reasonable doubt, you have got to try and take it out and identify this thing which is causing the hesitation, causing the doubt if you like, and you’ll have a look at it and you try to assess it and you say to yourself is this doubt that is bothering me, does it proceed from reason; is it a rational doubt; is it something which raises a really sensible doubt; or is it a fantastic sort of doubt; is it something which arises from some prejudice that I may have; some quite unreasonable fear that I might go wrong; some perhaps reluctance to make an unpleasant finding. Well if it is one of those doubts – merely one of those doubts, then of course it cannot be described as reasonable because it does not come from reason; it comes from something which is emotional or irrational or – at any rate it is not based upon reason, and if you have a look at what is bothering you and you decide that it does not proceed from something which is not reason but something fantastic or rising out of prejudice or one of these other things, then you should say to yourself, ‘the only doubt I’ve got is one which is not based on reason, I have therefore got rid of all doubts which are not based in reason, and the result of that is that I am satisfied beyond reasonable doubt, because the only things that are worrying me are things which I now assess after looking at them as not based in reason.’
And of course it is a common sense point of view before you find anybody guilty of a crime like this, you do need to feel comfortable about it; you need to feel, ‘very well, I’ve considered everything and I’m really satisfied. I am satisfied beyond reasonable doubt; I have given it the best consideration I can.’ There it is. And then you go away from the Court and you are comfortable, and that is the way you ought to be. You might not enjoy it, but you will nevertheless be comfortable, and unless you can make a decision of guilt and feel comfortable that it is the right decision, well then you do not make it” (at 30-31).
The Court found this direction to be fundamentally erroneous for the reason:
“A reasonable doubt is a doubt which the particular jury entertain in the circumstances. Jurymen themselves set the standard of what is reasonable in the circumstances. It is that ability which is attributed to them which is one of the virtues of our mode of trial: to their task of deciding facts they bring to bear their experience and judgment. They are both unaccustomed and not required to submit their processes of mind to objective analysis proposed in the language of the judge in this case. ‘It is not their task to analyse their own mental processes’; Windeyer J. Thomas v The Queen. A reasonable doubt which a jury may entertain is not to be confined to a ‘rational doubt’, or a ‘doubt founded on reason’ in the analytical sense or by such detailed processes as those proposed by the passage we have quoted from the summing up. Yet that is what they were directed to do in this case (at 32-33).”
It was said in Green that if during the course of the trial counsel for the accused laboured the emphasis on the onus of proof such as to suggest possibilities which in truth were fantastic or unreal as affording a basis for proof beyond reasonable doubt that the presiding judge should restore the balance. In such a case it was said that the judge might properly instruct the jury that fantastic and unreal possibilities ought not to be regarded by them as the source of reasonable doubt (at 33).
There is no suggestion in the present case that Mr Cook, on the appellant’s behalf, invited the jury to consider fantastic possibilities as affording the basis for a reasonable doubt. Indeed, at an early stage in the summing up the trial judge commended Mr Cook and the Crown Prosecutor as having delivered “refreshing concise, but relevant, and pointed addresses” (SU4).
While the direction complained of in the present case may not be as significant a departure from the traditional formula as that in Green, it is contended that nonetheless it invited the jury to engage in an analytic exercise dissecting such doubts as they may experience.
In La Fontaine v The Queen (1976) 136 CLR 62 Barwick CJ at 71 observed:
“This Court has clearly laid down that it is both unnecessary and unwise for a trial judge to attempt explanatory glosses on the classical and, as I think, popularly understood formula which expresses the extent of the onus resting on the Crown in its attempt to establish the commission of a crime; see Green v The Queen.”
It would have been preferable for the trial judge in this case not to have given the jury a direction, in terms, that the standard of proof is not beyond any doubt. The Crown accepted as much.
In written submissions Mr Strickland submitted with respect to the concluding paragraph of the direction on the onus and standard of proof:
“’It is a case of whether you the jury, as representatives of the society, are satisfied that the Crown has proved its case against the accused beyond reasonable doubt notwithstanding or despite what the accused said to the police’.
That direction is itself confusing because it is not clear how the jury should treat what the appellant told the police in deciding whether the Crown has proved its case. Furthermore, the direction misled or had the potential to mislead the jury because it gave the impression that the jury should disregard altogether ‘what the accused said to the police’ in deciding whether the Crown has proved its case. The appellant’s record of interview with the police was a crucial piece of evidence in deciding whether the Crown has proved its case. It contained both exculpatory and inculpatory statements. The jury was obliged to assess the whole of that record of interview in determining whether the Crown had proved its case beyond reasonable doubt. His Honour’s direction conveyed the impression that they should disregard or put to one side that vital piece of evidence in reaching their verdict.”
It is true that the contents of the interview contained material of critical significance in the Crown case, together with material exculpatory of him. To the extent his Honour’s directions conveyed that the jury were to determine whether the Crown had proved its case beyond reasonable doubt by putting to one side the contents of the interview, they were directions in one respect favourable to the appellant and adverse to the Crown. The Crown relied on admissions in the interview for proof that the appellant was one of the three men who assaulted Mrs Yin that night. Equally, in the interview the appellant put forward his account that he was not involved in any robbery of Mrs Yin and that he had not been a party to any agreement to rob Mrs Yin. It was necessary for the Crown to negative the possibility that the appellant attended the scene in company with Den and his brother to assist Den to recover a debt owed to him. Elsewhere in the course of the summing up his Honour made this much plain to the jury. I do not consider that passage complained of as such as to confuse or mislead the jury.

It is necessary to view the directions concerning the onus and standard of proof in the context of the summing up as a whole. In Van Leeuwen v The Queen (1981) 55 ALJR 726 Gibbs CJ (in a judgment with which Stephen, Mason and Wilson JJ agreed) said at 728:
“This Court has on a number of occasions asserted that in all criminal cases it is the duty of the trial judge to make the jury understand that a criminal charge has to be established by the prosecution beyond reasonable doubt. The direction must be ‘plainly given’: Thomas v The Queen; LaFontaine v The Queen.”
In this case the trial judge in the course of his opening remarks in the summing up observed:
“Your job is to decide whether, on the evidence before you, the Crown has proved the essential elements of the alleged offences beyond reasonable doubt. I shall shortly direct you as to what are the essential elements of the alleged offences” (SU3).
Shortly thereafter his Honour went on to give the directions concerning the onus and standard of proof which are the subject of complaint and which I have extracted above.
His Honour then went on to give directions concerning the ingredients of each of the offence charged in the indictment. Dealing with count one his Honour observed:
“If the Crown proves all of the essential elements of the alleged offence beyond reasonable doubt on that count you must find the accused guilty on that count. If the Crown does not prove all of the essential elements of the alleged offence beyond reasonable doubt on that count you must find the accused not guilty on that count” (SU5).
In the course of directing the jury on the elements of the offence charged in count two (the offence upon which the jury found the appellant guilty) his Honour said :
“The Crown must prove beyond reasonable doubt that what was intended by the accused was to steal money from Mr Lo.
…
To prove that the accused intended to steal money from Mr Lo the Crown must prove beyond reasonable doubt the following five things …”
His Honour next moved to directions upon the concept of a joint criminal enterprise. He directed the jury:
“The accused is guilty of the alleged crime in count one if it is proved beyond reasonable doubt that he was part of a joint enterprise to commit it”.
His Honour went on to give a further series of directions on the topic of joint criminal enterprise.
His Honour gave a circumstantial evidence direction. Whether it was necessary to do so in the context of the issues raised by this trial has not been the subject of submissions. In the course of giving this direction he observed:
“Before you can find the accused guilty having regard to circumstantial evidence you must be satisfied that such a finding is not only reasonable but that it is the only reasonable finding to make, that is, the only reasonable conclusion to draw.
It follows that if there is another explanation and finding which is reasonably open on the evidence, that is, if there is another reasonable explanation which in your opinion is consistent with innocence of the accused, you must find him not guilty. The accused relies on his statement that he was really going there as a contractor for Den, in consideration of $200, to bash or talk to Mr Lo for was owed to Den (sic) but he said he was duped in that regard. If you believe that is a reasonable possibility you would not be able to find the accused guilty on count one” (SU18-19).
After summarising the submissions relating to count one his Honour directed the jury:
“Moving to count two and the essential elements of count two. This is robbery in company and the victim was Mrs Pik Chun Yin.
If the Crown proves all of the essential elements of the alleged offence in count two beyond reasonable doubt you must find that accused guilty. You cannot shirk your duty. You have got to do your duty. If that is the finding then you must find him guilty.
Similarly, if the Crown has not proved all of the essential elements of the alleged offence to your satisfaction, beyond reasonable doubt, you must find the accused not guilty. Again you must not shirk your duty. You have got to perform it. You are the judges of the facts. You have got to act like judges” (SU25).
In summarising the defence case his Honour commenced by observing:
“As to the defence case, ladies and gentlemen, the accused emphasised the presumption of innocence and the nature of the Crown’s task in this case. That is, to prove its case beyond reasonable doubt against the accused, despite, or notwithstanding, what he told the police in his interview on the early morning of Sunday 11 July 1999. That is contained in Exhibits “G” and “H”. You saw the video and you have no doubt by now read the transcript of that interview” (SU29).
His Honour reminded the jury of the account given by the appellant in the course of the interview:
“Mr Cook told you that if you find that was a reasonable possibility you cannot be satisfied beyond reasonable doubt that the accused is guilty of either of the charges against him and that is so.
In his final address Mr Cook made these points, as I noted them.
He said that at the end of your deliberations you should find a reasonable doubt as to whether the accused is guilty. He submitted that you must be satisfied beyond reasonable doubt before you can find the accused guilty. I have already given you directions about that.
Mr Cook said that the central issue is whether the accused was a knowing participant with his brother in the robbery. If you have a reasonable doubt about that you must find him not guilty. I have directed you that that is so.”
Towards the conclusion of the summing up his Honour directed the jury:
“No adverse inference can be drawn against the accused because he chose not to give evidence on oath in the witness box. The accused does not have to prove anything. He is presumed to be innocent until such time, if at all, as the Crown proves beyond reasonable doubt that he is guilty” (SU35).
Having regard to the summing-up as a whole, I am of the view that the jury were left in no doubt as to the onus and standard of proof. In my view ground one has not been made good.
Ground two – his Honour erred in his directions to the jury about the appellant’s flight
Prior to the commencement of the summing up there was discussion as to the content of the directions to be given. The Crown Prosecutor invited the trial judge to give a direction on flight as evidencing consciousness of guilt. Mr Cook submitted that no such direction should be given. He contended that the Crown could only rely on flight as an admission if it were possible to reason from the fact of flight to guilt of the offences charged in the indictment. It was the appellant’s case that he had gone to the premises in company with the co-offenders to assault Mr Lo in order to recover the debt owed to Den. He was to be paid $200 for his assistance. His flight was equally referable to his awareness that this was wrongful conduct.
His Honour heard further submissions concerning the directions which it was proposed he should give and then returned to the question of flight. After a short adjournment he referred counsel to the decision of the South Australian Court of Criminal Appeal in Regina v Power (1996) 87 A Crim R 407. He indicated an intention to give a direction on flight to which Mr Cook observed, “my position is that I oppose that” (T21/6/01 at 8).
The direction which was given on the topic of flight is as follows:
“The direction of law I give you is that if you are satisfied beyond reasonable doubt that the accused fled the scene of the alleged assault and alleged robbery you may draw an inference against him that he acted in that way because he believed that he was a knowing and willing participant in either or both of the two alleged offences. But before you can draw that inference you must be satisfied beyond reasonable doubt that there is no other reasonable explanation for the fleeing and hiding, in all of the circumstances. You need to remember the conduct of this sort, that is fleeing a crime scene, may sometimes be explained in other ways. For example, simply as a result of panic or fear of the police or others, a desire to protect another person or other persons, or to avoid a consequence unrelated to the alleged offence or offences.
The accused told the police that he ran away because Den told him to do so. That is in Exhibit “H”, the typed transcript of the police interview, at questions and answers 349 and following. And further, that he hid in the park, and I will quote from the record of interview (question and answers 375 to 376 Exhibit H). He said that he hid in what he referred to as the park “because I saw someone put the light in, you know, to the park, so we lied down’.
If you are satisfied that the accused was motivated to flee and hide by a consciousness of guilt then before that can assist the Crown you must be further satisfied that what was in his mind was guilt of one or both of the particular offences charged and not some other offence. If you are so satisfied you are entitled to use that finding in aid of the other evidence, the circumstances of the case, that is in the Crown case as pointing to the guilt of the accused. But standing alone it could not prove guilt. It is just one of the circumstances to take into account.
The accused denied in his police interview that he participated in any plan to rob Mr Lo and said that neither he nor his brother had a gun. He said that he had gone to the meat market premises to “bash up” or “talk to” the proprietor on behalf of Den. He said that he was duped by Den who unbeknown to himself had a gun, and that without his knowing and willing participation, Den, alone, robbed Mrs Yin. That is different from what the accused has been charged with and that is a matter for you yourselves to weigh up and evaluate (SU23-25).
The trial judge then went on to remind the jury of the account the appellant gave in the interview that he had gone to the premises “to bash up” the proprietor on behalf of Den.
The complaint advanced by this ground is that the evidence of flight was not capable of supporting an inference of the appellant’s guilt of the offences charged in the indictment.
Mr Strickland referred us to the decision of the Supreme Court of Canada in Arcangioli v The Queen (1994) 111 DLR (4th) 48. In that case the appellant was charged with an aggravated assault. He was said to have stabbed the victim in the course of an altercation. The appellant admitted to punching the victim but claimed that a third person had approached the two of them during the altercation. This third person was said to have stabbed the victim. The trial judge gave the jury a direction on flight as evidencing consciousness of guilt. She went on to draw attention to the circumstance that people may flee the scene of a crime out of panic, even if entirely innocent.
The Court in Arcangioli referred to the judgment in United States v Myers 550 F.2d 1036 (1977):
“The test articulated in Myers provides helpful guidance on the inferences that may be drawn from evidence of an accused’s flight (or other possible indicia of consciousness of guilt, such as lying). Such evidence can serve the function of indicating consciousness of guilt only if it relates to a particular offence. Consequently where an accused’s conduct may be equally explained by reference to consciousness of guilt of two or more offences, and where an accused has admitted culpability in respect of one or more of these offences, a trial judge should instruct a jury that such evidence has no probative value with respect to any particular offence.
Those principles can be applied to the facts of this appeal. The trial judge simply told the jury that people often flee the scene of a crime even if they are entirely innocent. Having said what she did upon this matter, she should also have told the jury that because the appellant’s flight was equally consistent with both common assault and aggravated assault, it could not be evidence of guilt of the latter. Any inference to be drawn from flight disappears when an explanation for such flight is available, as it is here.
The jury should have been warned against drawing any inference from the fact of flight. The trial judge’s direction that even innocent people sometimes flee the scene of a crime was insufficient in light of the fact that the appellant admitted that he had committed common assault by punching Heffern and, thus, had reason to flee. The issue was not whether the appellant fled because he was guilty or because he panicked despite being innocent. Rather, the issue was whether the appellant’s flight indicated a consciousness of guilt arising from the fact that he had stabbed Heffern or rather from the fact that he had punched Heffern. And on that question, the evidence could have no probative value.”
In Mr Strickland’s submission the reasoning in Arcangioli is consistent with that of the High Court in Edwards v The Queen (1993) 178 CLR 193. He also has directed our attention to the judgment of White J in The Queen v Bridgman (1980) 24 SASR 278.
In Bridgman the Crown proposed leading evidence that the accused absconded from bail as an admission by conduct. On a voir dire hearing it emerged that as at the date of the offence charged the accused was on parole. He had a substantial reason for absconding in that if convicted of the subject offence his parole would be revoked and he would have been serving the balance of a lengthy sentence of imprisonment. White J excluded the evidence observing:
“Likewise, in the present case before me, evidence of flight was not placed before the jury once an additional substantial reason for flight was disclosed in circumstances which made the fact of flight ambiguous and the task of explaining the ambiguity onerous and prejudicial” (at 282).
Bridgman was discussed by Doyle CJ (in a judgment with which Millhouse and Williams JJ agreed) in Power. In that case the Crown led evidence that police attended at the appellant’s address on 26 June 1993 informing him that they were investigating a series of bank hold-ups which he was suspected of having committed. The following morning the police attended premises at which the appellant’s brother was residing. The appellant was present at those premises. Again, the police conveyed they were investigating bank hold-ups and that they believed both the appellant and his brother to be involved in their commission. On 1 July 1993 both brothers left Australia and travelled to the United Kingdom. They remained in that country for some time. Evidence was relied upon by the Crown to establish that while in the United Kingdom the appellants used false names and disclosed a close interest in the activities of the police in South Australia.
In Power the appellants explained their departure from Australia by saying that they had panicked when told that they were under suspicion in connection with the armed robberies. Doyle CJ observed:
“In my opinion, the evidence was admissible. Taken as a whole it was evidence upon which the jury might conclude that the conduct of the appellants manifested a consciousness of guilt. There is adequate authority to support the view that evidence of flight (and I use this term compendiously to describe the whole of the evidence, because in my opinion it is all interrelated) is admissible as showing a consciousness of guilt: see eg, Melrose [1989] 1 Qd R 572. It will not be often in such cases that the evidence is unequivocally indicative of guilt. There may, I suppose, be cases in which the evidence is intractably neutral, but I fail to see how the evidence in this case can be so regarded. Of course, the explanation advanced by the appellant’s was not a ludicrous or obviously false one, but to my mind that does not render the evidence incapable of supplying proof or evidence of guilt. If it did, then much circumstantial evidence which is routinely admitted would be rejected. In my opinion, the ruling by White J, reported in Bridgman (1980) 24 SASR 278, is not to be taken as meaning that evidence of flight is inadmissible simply because a credible explanation is advanced. In my opinion the approach to be taken is that indicated by Shepherdson J in Melrose (at 579) (assuming that the evidence is not intractably neutral:
‘I would however say that in my opinion, when there is evidence of flight before a jury whether there be one or more than one reason advanced for that flight, the jury should be told that it is for them to decide on the whole of the evidence relevant to the charge in which evidence of flight has been admitted what inference is to be drawn from the accused persons flight but if at the end of the day they decide to infer a consciousness of guilt in the accused person for the offence alleged, they must be satisfied beyond reasonable doubt of such an inference.’
In my opinion, the judge rightly admitted the evidence for the purpose identified by the prosecution” (At 409).
In the course of oral argument Mr Strickland drew our attention to a passage in the judgment of Deane, Dawson & Gaudron JJ in Edwards as supportive of the reasoning which found favour with the Court in Arcangioli:
“Furthermore, the reluctance of the appellant to recall any more than he was compelled to do in cross-examination occurred in a situation in which the appellant had been in custody and did not wish to inculpate others who were in custody with him – to be a “dog” in prison terminology. That was not questioned by the prosecution as a motive for withholding the truth, indeed the prosecution suggested it. Whilst in many cases it must be a question for the jury whether a lie was told because the truth was perceived to be inconsistent with innocence or for some other reason, if it was established that there was a deliberate lie in this case about a material matter (and we do not think that it was), the innocent explanation for that lie was so plausible that the lie could not have been probative of guilt. Quite apart from our concerns about the existence of the lie and its materiality, this should have prevented the trial judge from concluding that the telling of the lie was capable of amounting to corroboration of the complainant’s evidence.” (At 212).
Mr Strickland accepted that in the above passage their Honours might not be thought to have embraced a proposition as wide as that set out in Arcangioli. It was not his submission that in every case in which there are competing explanations flight ought not to be left as capable of evidencing consciousness of guilt. Such a proposition would be contrary to authority; Regina v Adam (1999) 106 A Crim R 510 at 522; Power; Melrose [1989] 1 Qd R 512.
In Mr Strickland’s submission this was a case in which the competing explanation offered by the appellant for his flight was of such inherent plausibility that it was not reasonable to leave flight as probative of guilt. There was no issue about the fact that the appellant was present at the scene in company with his brother and the man Den at the time Mrs Yin was robbed. It was his account that he had been a party to a joint criminal enterprise, namely to assault Mr Lo. On his own account he was aware that agreeing to “bash up” Mr Lo, on behalf of Den, exposed him to criminal liability. He had run from the scene when Mrs Yin was yelling out and he was arrested shortly thereafter. The real issue in this case was whether the Crown could negative beyond reasonable doubt that the appellant’s presence at the scene was as a person recruited to assault Mr Lo. In Mr Strickland’s submission the evidence of flight in these circumstances was intractably neutral, to adopt the language of Doyle CJ in Power.
The appellant did not give evidence at the trial. It is necessary to turn to the contents of the ERISP in order to evaluate the challenge advanced on this ground:
“Then the lady, the other one that the, the, the guy asked me to come, he, I don’t know what they’re doing but the lady, you know, she make a yell, you know, just a big noise yell so, then he asked me to run away. So I ran, but I, I don’t know what happened, you know, and I don’t know he’s a robber or what, I don’t know because he asked me, he only asked me to come for assault that man, you know so that’s all I want, I want to say in here” (A 6).
…
Q. 50 Do you agree that you were arrested in a, an abandoned property, in a vacant block of land …
A. Yeah.
Q. 51 … In Vales Lane, between Vales Lane and Queen Street at Auburn?
A. Yes.
…
Q. 54 … Do you agree that when you were arrested you were with your brother?
A. Yeah.
Q. 55 What’s his name?
A. Quoc Phu Ho.
…
Q. 57 Right. Can you tell me the circumstances of you being arrested in the paddock there?
A. Sorry?
Q. 58 Can, can you tell me how you got arrested?
A. When she, because when she yelled out and I was so frightened that’s why I ran away and hide myself there. By that time my friends already went out, so she thought that we’d, we’d rob her, that’s why, and I hid myself there until the police came with the dog.
…
A 79 Yeah. He saw me, that man at the shop, you know, and he asked me to come and asked that lady, when I come in, and that lady make a yell so, and, and her husband or you know the, the man come out, you know, so I, I come and talk to him. So I don’t know what happened when, at my bat, you know, and then the, the, the guy, the guy come with me, he asked me to run, so I tried to run away.
Q. 80 Oh, right.
A. You know, I jump in the park and hide there because, you know, some, a lot of people look at us, you know, so I’m scared that she thought armed robbery or something, but I don’t know what happened. I only know when, you know, the cop come and when they arrest me and they come and ask me where’s the money and I, I talk to them, where’s the money? I don’t know where’s money, you know, because I don’t know what happened.
…
Q. 139 He got the pistol.
A. But you know …
Q. 140 So you’re indicating a pistol?
A. Yeah, but yeah but he come do like this but it’s not shooting.
Q. 141 Right.
A. Yeah. I think it’s a toy, you know.
Q. 142 Right.
A. Yeah. And after that he walked back to a lady and maybe at, at the time he, he get the, her bag and run away.
…
Q. 146 OK what happened then? Are you still with the man at that stage? You and your brother still with the man?
A. Because he, he run first, you know.
Q. 147 Yeah.
A. So we don’t know, we, he, when he run he asked me to run. He said, hey, run, then I’m, I’m going to run away with my brother at the back and when we go out on the, you know, the road, I didn’t see him either.
Q. 148 You didn’t see him?
A. Yeah.
Q. 149 What, you lost sight of …
A. Yeah, I lost …
Q. 149 Of Den?
A. … I lost him on the road, you know, so I’m jump in the park and I stay in there.
Q. 150 OK then, did you see the, the man and the lady run after you?
A. Oh, no, not really.
Q. 151 No.
A. No, because when we run …
Q. 152 Did you hear someone yelling and screaming behind you?
A. Yeah, yeah, yeah.
…
Q. 194 But it’s not the right thing to do, you agree with that?
A. Yes.
Q. 195 To bash the man?
A. Yeah. That’s why when she make a yell I run away.
Q. 196 Yeah.
…
Q. 349 But then you run off after him.
A. When he take it and he run already he asked me to run.
Q. 350 He asked you?
A. Yeah.
Q. 351 So you …
A. He said, run run run.
Q. 351 … seeing him with the bag?
A. Sorry.”

In the light of that material I consider it was open to the trial judge to leave consideration of the appellant’s flight from the scene as capable of amounting to evidence of consciousness of guilt of the offence charged notwithstanding those answers in the ERISP which raised an alternative explanation.
Mr Strickland also challenged the adequacy of the directions given on this topic. It was submitted that his Honour was required to direct the jury that in the event the event that they were not able to exclude the appellant’s answers at Q 194 and 195 as providing a reasonably possible explanation for his flight they should put the evidence of flight to one side as being not capable of supporting a finding of guilt. Allied to this aspect of the challenge was the submission that his Honour erred in observing: “the accused ran away because Den told him to do so” at the commencement of the directions on flight. It was contended that this was not a complete account of the appellant’s statements of his reasons for flight and, to that extent, it was misleading. The matter was compounded by the fact that trial counsel sought a re-direction inviting the jury’s attention to the alternative explanation for flight in answers at Q 193 to 195 inclusive. His Honour declined to remind the jury of this material or to supplement his directions on flight.
In the course of his directions on this topic his Honour commenced by directing the jury:
“The direction of law I give you is that if you are satisfied beyond reasonable doubt that the accused fled the scene of the alleged assault and alleged robbery you may draw an inference against him that he acted in that way because he believed that he was a knowing and willing participant in either or both of the two alleged offences. But before you can draw that inference you must be satisfied beyond reasonable doubt that there is no other reasonable explanation for the fleeing and hiding, in all of the circumstances.” (SU23).
His Honour went on to direct the jury additionally that it was necessary for the Crown to satisfy them that what was in the appellant’s mind was consciousness of guilt of the offence charged. Immediately following this latter direction his Honour reminded the jury of the appellant’s account in the interview that he had gone to the meat market in order to “bash up” Mr Lo and not because of any agreement to rob Mrs Yin. His Honour observed “that is different from what the accused has been charged with”. As I read the directions on flight they include the concluding paragraph extracted at [44] above in which attention is directed both to the appellant’s alternative explanation for his flight and he was there admitting guilt of an offence other than that with which he was charged.
Mr Strickland drew attention to counsel’s request for re-directions. While he accepts that upon one construction of his Honour’s remarks the jury were adequately directed as to the significance of the appellant’s alternative explanation for his flight, the fact remains that in the atmosphere of the trial, experienced counsel considered the directions to be deficient.
The Crown conceded that it was unfortunate that the trial judge did not accede to counsel’s request for the further directions sought on this topic. That is a fair concession.
The Crown points to the directions on flight as a whole and submits that any deficiency is overcome by the circumstance that his Honour gave a direction which was unduly favourable to the appellant in that it required the jury to be satisfied beyond reasonable doubt that the appellant’s flight was the product of his consciousness of guilt of the offences charged before it might be relied upon. The Crown points in this respect to the observations of this Court in Regina v Adam [1999] NSWCCA 189 at paras [54] – [57]:
“[54] In directing the jury to the effect that before any lie or any other conduct on the part of the appellant could be used as evidence of consciousness of guilt, the jury would have to be satisfied beyond reasonable doubt that the lie was told or the conduct was engaged in and would also have to be satisfied beyond reasonable doubt that the lie was told or the conduct was engaged in solely out of consciousness of his own guilt and not for any other reason, the trial judge's directions may have been unduly favourable to the appellant. In the leading High Court decision of Edwards v The Queen (1993) 178 CLR 193 Deane, Dawson and Gaudron JJ said at p210:-
‘Although guilt must ultimately be proved beyond all reasonable doubt, an alleged admission constituted by the telling of a lie may be considered together with the other evidence and for that purpose does not have to be proved to any particular standard of proof. It may be considered together with the other evidence which as a whole must establish guilt beyond reasonable doubt if the accused is to be convicted. If the lie said to constitute the admission is the only evidence against the accused or is an indispensable link in a chain of evidence necessary to prove guilt, then the lie and its character as an admission against interest must be proved beyond reasonable doubt before the jury may conclude that the accused is guilty. But ordinarily a lie will form part of the body of evidence to be considered by the jury in reaching their conclusion according to the required standard of proof. The jury do not have to conclude that the accused is guilty beyond reasonable doubt in order to accept that a lie told by him exhibits a consciousness of guilt. They may accept that evidence without applying any particular standard of proof and conclude that, when they consider it together with the other evidence, the accused is or is not guilty beyond reasonable doubt’.
[55] Since Edwards it has been repeatedly held by this Court that "where lies are used merely as evidencing a consciousness of guilt, as part of the circumstantial evidence case, it is unnecessary to establish either the lie or its character beyond reasonable doubt" ( R v Taylor (unreported 18 April 1995 at p19 per Hunt CJ at CL, citing R v Dellapatrona (1993) 31 NSWLR 123 at 150; R v Sandford (1994) 72 A Crim R 160 at 181: R V Small (1994) 33 NSWLR 575 at 596.
[56] In R v Moore (unreported Court of Criminal Appeal 21 June 1995) Gleeson CJ said at p16:-
‘Furthermore, the directions which Wood J gave to the jury on this matter went very close indeed to telling the jury that they had to be satisfied, beyond reasonable doubt, that there had been a lie told from a consciousness of guilt, before they could add this to the circumstantial case against the appellant. The directions contained references to that being the only rational inference available. In this respect, the directions may have been unduly favourable to the appellant’.
[57] We are conscious, and his Honour may well have had in mind, that some doubt has been thrown on the proper standard of proof of some items of circumstantial evidence by the recent decisions of the High Court in Gipp v The Queen (1998) 72 ALJR 1012 and Penney v The Queen (1998) 72 ALJR 1316.”
I consider that read in context his Honour’s directions on flight were adequate and in certain respects favourable to the appellant.
I would reject the second ground.
MEAGHER JA: I agree.
HIDDEN J: I also agree. It may perhaps have been unfortunate that his Honour peremptorily rejected trial counsel's application for redirections on the question of flight. If he had been minded to clarify them this appeal would have been unnecessary. However, I agree with Bell J that, read as a whole, those directions were adequate in the circumstances and I agree that the appeal should be dismissed.
MEAGHER JA: The order of the Court therefore is the appeal be dismissed

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LAST UPDATED: 05/07/2002