R v Kirwin

[1994] QCA 151

IN THE COURT OF APPEAL	[1994] QCA 151
SUPREME COURT OF QUEENSLAND

C.A. No. 305 of 1993

Brisbane

[The Queen v. Kirwin]

T H E Q U E E N

v.

DAVID HAROLD KIRWIN

(Appellant)

THE CHIEF JUSTICE
MR JUSTICE McPHERSON

MR JUSTICE DAVIES

Judgment delivered 16/05/1994

The Chief Justice and Mr Justice Davies delivering joint reasons. Mr Justice McPherson agreeing, delivering separate reasons.

Appeal dismissed. Application for leave to appeal against sentence formally refused.

CATCHWORDS: CRIMINAL LAW - directions to jury - lies indicating consciousness of guilt - lies as corroboration - proof of lies - Edwards v. The Queen (1994) 68 A.L.J.R. 40 discussed.

Counsel:Mr J. Gerrard for the Appellant

Mr P. Rutledge for the Crown

Solicitors:Robertson O'Gorman for the Appellant

Director of Prosecutions for the Crown

Hearing Date:01/11/1993

JOINT JUDGMENT OF THE CHIEF JUSTICE and MR JUSTICE DAVIES

Judgment delivered 16.05.1994

The appellant was after a trial convicted on three counts, two of assault occasioning bodily harm on 13 December 1991 and one of rape on 19 December 1991, the same complainant being involved in all three cases. The appellant was sentenced to imprisonment for five years in respect of the rape and six months in respect of the assaults, all to be served concurrently. The appeal notice filed appeals only against the conviction for rape although it seeks leave to appeal against the sentence imposed for that offence. The sentence appeal was not persisted with and it should be formally dismissed.

Only one ground was argued on the appeal that being, in effect, that the judge erroneously directed the jury that in considering the charge of rape they could use lies told by the appellant in the course of giving evidence to assist the Crown's proof of guilt, there being no admission by the appellant that he had told any lie and no evidence from an independent witness that the appellant had told a lie. The argument for the appellant was that before a lie told by an accused person can be used in proof of guilt it must, amongst other things, appear that the statement in question is a lie either by an admission of the accused person himself or by evidence from some independent witness. The contention was taken to the point where it was said that the necessary independent evidence could not be found in the testimony of the complainant because she did not have independent status. The claimed requirement on which the argument was based was taken from the fourth test propounded by Lord Lane in R. v. Lucas (Ruth) [1981] Q.B. 720 at 724 although it is to be noted that His Lordship was there dealing specifically with evidence capable of constituting corroboration. The submission made to this Court was that the requirement applied equally when the issue was not one of corroboration and it was said that this was sufficiently established by previous decisions in this State such as R. v. Fellowes [1987] 2 Qd.R. 606 at 619-620. For reasons which will be explained this contention cannot be accepted and to the extent that this observation in R. v. Fellowes might be thought to support this submission, it can no longer be accepted in view of the reasoning of the majority in the recent High Court decision of Edwards v. The Queen (1994) 68 A.L.J.R. 40.

It is necessary to set out something of the facts of the present case. The appellant and the complainant had cohabited but the relationship came to an end on about 19 October 1991 and the appellant moved out of the house where they had been living. The complainant claimed that the appellant returned to her house on 19 December 1991 and there raped her. The appellant said that not only had the alleged rape not occurred but that he had not been at her house at that time. He called his grandmother, grandfather and stepmother to prove an alibi for the occasion and gave evidence himself to the same effect.

The complainant said that she had been menstruating at the time the rape was perpetrated and she produced to the investigating police a hand towel which had marks and stains upon it. She said she discovered the towel in her laundry basket after the appellant's visit on 19 December 1991. She said that just prior to his visit she had observed the towel where she had placed it in the bathroom and it was hanging in a clean condition beside the basin.

The towel, when scientifically examined, was found to bear traces of sperm common to 4.3 percent of the population and epithelial cells in blood traces common to 11 percent of the population. The appellant was a member of the group with the sperm characteristics referred to and the complainant was within the group with epithelial cells possessing the characteristics referred to.

Although the scientific evidence was unable to attribute any date, even approximate, when either the sperm or the blood traces might have been deposited on the hand towel, the case for the prosecution was that after the rape had occurred on 19 December 1991 the appellant had wiped himself on it before placing it in the laundry basket. The appellant's case accepted that the traces had been placed upon the hand towel following an act of sexual intercourse between himself and the complainant but he said this occurred prior to the termination of their relationship on about 19 October 1991. He said that the complainant had used the towel after an act of consensual intercourse between them prior to that date. His case was that she had deliberately saved the towel in a vengeful fashion to use against him. He claimed that in a conversation between them she demonstrated her vindictiveness by saying to him, "I'll destroy you" and "If I can't have you, I will destroy you". Since the towel was a piece of evidence which lay at the centre of the conflicting accounts of the appellant and complainant it was perhaps inevitable that considerable attention should have been paid to it in the course of the trial.

The judge gave a substantial direction on the significance of lies and the possible use which the jury could make of them in weighing the strength of the case against the appellant. Amongst other things, the judge directed the jury that they should not make use of any lies told by the appellant in strengthening the case against him unless they were persuaded that they were on a material issue. He told the jury that the material issue for this purpose was whether the appellant had been at the complainant's residence on two dates, one of which was 19 December 1991, the date of the alleged rape. In redirection, he narrowed his reference to the possibility of a lie which was relevant by restricting it to the appellant's claim that sexual intercourse had not taken place on 19 December. He told the jury that the evidence which might show that such a claim was a lie was the evidence of the complainant, and the evidence constituted by the hand towel. He said that from this they might conclude that sperm from the appellant had been placed on the towel on 19 December. It should be mentioned that the judge also told the jury that to use a lie as demonstrating a consciousness of guilt in this way they had to be satisfied beyond reasonable doubt that it was a deliberate lie on the material issue which he had identified for them. For reasons later discussed the reference to this high standard of persuasion as limiting the use of lies was unduly restrictive but since its effect favoured the accused the appellant can make no complaint about that aspect here. Apart from two specific matters which will shortly be mentioned, and apart also from the principal submission that lies could not be used in deciding whether the appellant was guilty unless, amongst other requirements, the alleged lies were established as such by independent evidence, it was accepted by the appellant's counsel that the judge gave a sufficient and proper direction on this topic.

The appellant's two specific complaints may be dealt with briefly. In his discussion concerning the appellant's alibi evidence the judge gave an example which resulted in mingling a hypothetical claim made by a liar about where he was at a material time and a claim about where he was not, so that, in isolation, his example might have lacked clarity. However, in context, in the extended treatment which he gave to the jury at this point and elsewhere in his summing up it would not have confused them. Further, at another point, having referred to the opposing contentions that the traces on the towel resulted from the appellant's use of the towel on the night of the rape and the appellant's own version that although the traces were attributable to himself and the complainant, they came from her use of the towel on a previous occasion, the judge said, "Well, what do you think of this? You have to come to a conclusion on this matter." It is this last observation which is objected to because, as it was said, it was not the case that the jury were obliged to come to a conclusion on the conflict concerning the towel. However, the judge immediately after making that observation continued, "If you are satisfied that that was his sperm on that blue hand towel, and if you accept the evidence of [the complainant] that that blue towel was hanging up in a clean condition in the bathroom, well that would put the accused in [the complainant's] home on the night of the 19th when she claimed she was raped. Now, that is one conclusion you can come to if we [sic] accept her evidence." The shift in language is apparent in the judge's reference to a conclusion which the jury "can" come to "if" the complainant's evidence was accepted. It should not be concluded that the judge led the jury into adopting any erroneous approach by his observations at this point. Obviously, the substantial contest between the two sides over the matter of the hand towel would inevitably receive the jury's attention and the judge was right to give the jury assistance in their consideration of the matter. In context the remark, "You have to come to a conclusion on this matter" would have been taken by the jury to mean something like, "You ought to think about this matter which has some potential importance in the resolution of the case." From what can be detected from the record showing how the case was conducted, the jury would in any event have been giving considerable attention to the matter of the towel. It might be observed that in the appellant's version in respect of it the jury would have been entitled to conclude that it contained a certain improbability since it was attributing unexpected foresight to the complainant in the use she could make of the towel if she were to preserve it and the parties were later to separate and also, in that eventuality, insight into what a scientific examination was likely to show. However, it should not be accepted that either of the two specific complaints raised by the appellant would have operated in a way which was unfair to him.

It is now necessary to consider the principal complaint made on behalf of the appellant. It was contended that alleged lies told by him in giving his evidence could not be used to strengthen the case against him unless, amongst other requirements, the statements were shown to be lies in fact by evidence which was independent of his own testimony and, unless further, that evidence came from a source other than the testimony of the complainant. As has already been indicated this submission cannot be accepted either at the first level at which it is advanced, or at the second which involves picking up a requirement relevant only when corroboration is sought. The present case was one where the judge had directed the jury that there was no evidence capable of constituting corroboration.

The matter now to be considered can be examined in light of the observations of the While ordinarily the telling of a lie will do no more than affect the credit of the witness who is lying, when it is the accused who is lying the effect may "go further and in limited circumstances, amount to conduct which is inconsistent with innocence and amount therefore to an implied admission of guilt": at 48, first col, E-F. court since no logical distinction can be drawn between the two: at 48, second col, A. Not every lie told by an accused will provide evidence in proof of guilt. This will only be [so] when it relates to a material issue and also when it is told because the accused "perceives that the truth is inconsistent with his innocence [so] that the telling of the lie may constitute evidence against him", i.e. when, as it is sometimes put, the lie is told out of a consciousness of guilt: at 48, second col, B-E. Any possible admission constituted by the telling of a lie falls to be considered with the other evidence and at that point does not have to be proved to a particular standard although, ultimately, the evidence as a whole must, of course, establish guilt beyond reasonable doubt if the accused is to be convicted: 49 first col, B-E. In particular, "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": 49, first col, E-F. In a narrow category of cases where the lie 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 effect in the circumstances as an admission does have to be proved beyond reasonable doubt": 49, first col, D. It will be necessary for a judge to give the instructions identified in the first three tests stated in R. v. Lucas (Ruth) (supra) at 724 namely that before a lie is used by a jury in any way as proof of guilt, they would have to regard the statement as a deliberate lie, it must relate to a material issue and the motive for the lie must be a realisation of guilt. A proper direction on these three essential matters should be expanded somewhat in accordance with the fuller treatment advised in Edwards v. The Queen at 49, second col, B-G. When a lie is relied on by the prosecution as corroboration of other evidence (the matter considered by Lord Lane's fourth test in R. v. Lucas (Ruth) {supra}) there is an additional requirement that the relevant untruthfulness must be established otherwise than through the evidence of the witness who is to be corroborated: 50, first col, A-B. When no question of corroboration arises the usual full instruction along the lines discussed earlier should ensure that the jury approaches its task in proper fashion. As a result of the decision in Edwards v. The Queen some of the disputation previously associated with discussion of the correct approach to adopt in instructing juries in this area can now be regarded as put at rest. The principles stated in the majority judgment can be given their proper place in the conduct of cases in the future.	majority in Edwards v. The Queen (supra) where a number of propositions are established. proper opportunity to weigh his testimony and assess his credibility. It would clearly be going too far to say that they were disentitled from using the impressions they would have derived from seeing and hearing him in coming to their conclusions in the matter. The separate treatment which the trial judge gave to the matter of the towel in his summing up would have served to warn the jury against any incautious use of the appellant's evidence in respect of it and was not, overall, erroneous. The criticisms which have been raised in respect of it should not be accepted and there is no reason to think that the evidence in the case did not constitute a safe basis for the jury's conclusion of guilt.	Lies told in court are for this purpose to be placed on the same basis as lies told out of
The appeal should be dismissed and the application for leave against sentence formally
refused.

Some redirection was asked for by Counsel for the appellant at the trial but the request suggested broadly that there was an absence of evidence on which the jury could conclude that the appellant had lied in his testimony. The request did not involve the suggestion which was put in the argument on the appeal, namely that it was only "independent" evidence which could be used in this fashion.

REASONS FOR JUDGMENT - McPHERSON J.A.

The facts giving rise to the conviction and this appeal are set out in the joint reasons of

The critical issue for the jury was whether the appellant had sexual intercourse with the
complainant at about 9 p.m. on 19 December 1991. At the trial she testified that sexual
intercourse had taken place and it was without her consent. He gave evidence that it had not
occurred, and called witnesses to support his claim that he was somewhere else at the time.
The alibi witnesses were all relatives of the appellant, and the jury did not believe them.
A reason may well have been that there was independent evidence at the trial supporting the
complainant's account in various particulars that were material. One was that she was able to
give the police a description of clothing that the appellant was wearing that evening, and clothing
like it was found in the appellant's car less than two days later. Another was that the complainant
said that, shortly before the rape took place in the house where she lived, the telephone rang and
the appellant answered it. The caller, who was the complainant's insurance agent, was unable
later to identify the appellant's voice, but he was able to confirm that a man had answered the
telephone at the complainant's place at about 9.00 p.m.
Finally, there was the blue hand towel to which the joint reasons refer. Its condition
afforded strong confirmation that the appellant had had sexual intercourse with the complainant.
The towel bore traces of menstrual fluid which forensic analysis showed had probably come
from the complainant, mixed with sperm which had come from the appellant. By the end of the
trial these conclusions were not disputed. According to her evidence at the trial, she had come
upon the towel a couple of days after the incident when she was sorting things to be washed. She
found it among the dirty linen in the laundry basket in the bathroom; it had previously been on a
ring next to the bathroom hand basin. The Crown's explanation was that the appellant had gone
to the bathroom and used the towel to wipe himself after having sexual intercourse with her on
what she confirmed was the last day of her period. She recalled seeing him near the entrance to
the bathroom after the incident.
This was, on the face of it, powerful evidence that the appellant had had sexual
intercourse with the complainant. His response was that he and the complainant had (as was the
fact) previously lived together in a "relationship" at her residence; the forensic material found on
the towel was, he claimed, the product of an earlier consensual sexual encounter between them.
His case at the trial was that when their relationship ended on 19 October 1990, she had been
highly vindictive towards him, and that she must have kept the towel as evidence with which to
"frame" him in future by falsely accusing him of rape in exactly the way that had happened.
The appellant's hypothesis was thoroughly improbable and one which, viewed as an
explanation for the presence of the material found on the towel, was far less plausible than the
complainant's version of events. It was therefore not a case in which two competing and equally
cogent inferences, one inculpatory and the other exculpatory, could be said to arise from the
same fact. In those circumstances there could be little doubt that the forensic evidence served to
confirm the complainant's testimony in a material particular. Indeed, it is probably not going too
far to say that, quite independently of that testimony, the forensic evidence on its own came close
to proving that the appellant had last had sexual intercourse with the complainant at about the
time she alleged, rather than some two months or more before. The explanation put forward by
the appellant scarcely merits serious attention.
Influenced perhaps by the notorious pitfalls of corroboration, his Honour directed the
jury to treat the testimony of the complainant as uncorroborated. For reasons I have indicated, it
may be open to question whether that was strictly correct; but about that the appellant naturally
enough does not complain. His criticism is levelled at the trial judge's direction to the jury
concerning the possibility that the appellant's case of alibi was a fabrication and about the use to
which lies might be put in arriving at a verdict with respect to the offence or offences charged.

the Chief Justice and Mr Justice Davies. I need not repeat them here. their reasons for dismissing this appeal. I agree with it, and also with their conclusion that both the appeal against conviction and the application for leave to appeal against sentence should be dismissed. For my part I wish to reserve to the future any detailed consideration of the scope and likely impact of the decision of the High Court in Edwards v. The Queen (1993) 68 A.L.J.R. 40 on the appropriate directions on these matters that are to be given to juries.

Judgment delivered the Sixteenth day of May 1994