R v Lam (No 18)
[2005] VSC 292
•24 May 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1505 of 2003
| THE QUEEN |
| v |
| CUONG QUOC LAM & ORS |
---
JUDGE: | Redlich J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 January 2005 to 19 September 2005 | |
DATE OF RULING: | 24 May 2005 | |
CASE MAY BE CITED AS: | R v Lam & Ors | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 292 | |
RULING NO. 18
Lies by accused evidencing a consciousness of guilt – Lie must be demonstrably false –– must be compelling and prominent hypothesis - whether inference of consciousness of guilt open where competing hypotheses.
Circularity of reasoning – “Boot straps” argument – Whether lie or facts establishing lie an indispensable link in a chain of reasoning – Centrality of facts to accused’s defence –Whether implied admission in relation to offence charged
Standard of proof as to implied admissions – Joint trial – Lies by a number of accused.
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M. Dean S.C. with Mr P. Southey | Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions |
| For Cuong Quoc Lam | Mr S. Grant | Michael Gleeson & Associates |
| For Hung Tu Van | Mr A. Jackson | Haines & Polities |
| For Linh Van Nguyen | Mr D. Brustman | Valos Black & Associates |
| For Thanh Nha Nguyen | Mr F. Gucciardo | Theo Magazis & Associates |
| For Long Thanh Tran | Mr G. Mullaly | Victoria Legal Aid |
| For Hong Bui | Mr J. Saunders | Valos Black & Associates |
| For Hoang Tran | Mr M. Rochford | Brendan Wilkinson |
HIS HONOUR:
Lies said to evidence a consciousness of guilt
The prosecution seeks to rely upon a number of alleged implied admissions of guilt made by six of the accused to police in their video interviews or statements. In a document dated 3 May 2005 the prosecution set out 47 alleged lies, 29 of which were said to support an inference that these alleged lies were told out of a consciousness of guilt of the crime with which the accused have been charged. With two exceptions, defence counsel disputed that any of the answers were clear lies or that an inference of a consciousness of guilt could be inferred from such statements. During the course of subsequent submissions the prosecution refined its position a number of times conceding that some of the lies should be left to the jury only as going to the credit of the particular accused and abandoning a number of lies as capable of supporting an inference of a consciousness of guilt. The prosecution also reformulated the wording of a number of the lies upon which it continued to rely.
Subsequent to the oral argument, by a further document filed and dated 17 May 2005, the prosecution further refined its position as to the lies which it submitted were capable of evidencing a consciousness of guilt. The prosecution now relied upon the following 13 lies as supporting an inference of a consciousness of guilt.
Cuong Lam
1.(3).[1] The lie as to how he came to be armed in Daly Street; (video interview 45, 1006-1016; 1052-1053).
[1]The previous numbering of the lie at the time of oral argument is, for convenience, set out in brackets.
2.(7) The lie that he only went a maximum of 20 metres north up Chapel Street from Daly Street (video interview 45).
3.(8) The lie that he did not attend the intersection of Alexandra Avenue and Chapel Street on the morning of Monday 8 July 2002 (video interview 1379).
Hung Tu Van
4.(15) The false denial that he was armed in Daly Street (video interview 446-447).
5.(16) The lie that he ran to the corner of Daly and Chapel Streets just to look for his friends (video interview 123-125).
6.(18) The lie as to the place that the small red car stopped when he and David Nguyen alighted from it (video interview 149-153, 354-357).
7.(19) The lie that he attended that location in the small red car only once, and alighted from it only once, (video interview 426-431).
8.(20) The false denials that he kicked the person on the ground (video interview 234–5, 429, 575).
Johnny Nguyen
9.(25). The lie as to the position he stopped his car at the intersection of Chapel Street and Alexandra Avenue (video interviews 228 – 235, 429, 575).
10.(29) The false denial that his vehicle was present at the intersection of Alexandra Avenue and Chapel Street twice (video interview 607–8, 664).
Long Tanh Tran
11.(34) The lie that he did not see James Huynh on the ground (video interview 794–7).
Hong Bui
12.(36) The lie that he did not see James Huynh on the ground (video interview 502).
Hoang Quang Tran
13.(40) The false account given to Detective Senior Constable Gale in the statement taken at 8.40 a.m. on 8 July 2002 in which the Accused denied having been to Alexandra Avenue after leaving the nightclub (T6152).
Lies,- implied admissions or merely affecting credit
The prosecution submits there are a number of lies which constitute implied admissions of guilt as distinct from lies which are relied upon solely to challenge the credibility of the accused.[2]
[2]Edwards v The Queen (1993) 178 CLR 193.
Lie clearly demonstrated
A lie must be clearly demonstrated before it could be used as an implied admission.[3] With two exceptions it was submitted on behalf of all accused that the prosecution could not establish that any of the utterances relied upon were “clearly lies” as the evidence did not establish that what was said by an accused was untruthful. Each counsel briefly developed submissions as to why the evidence did not permit such a conclusion with respect to each lie. Unless otherwise stated I am satisfied that there is a sufficient admissible body of evidence for the jury to reach the conclusion that the utterance by a particular accused was demonstrably false.
[3]R v Russo [2004] VSCA 206 per Winneke P at [6].
Competing innocent explanations - plausibility
In most cases it will be necessary for the jury to determine whether a lie was told because the truth was recognised by the accused to reveal his guilt or whether it was told for some other reason. Counsel for each accused submitted that the alleged lie could not sufficiently support an inference of a consciousness of guilt as there were competing innocent explanations.
In Edwards Deane, Dawson and Gaudron JJ concluded that the innocent explanation for the alleged lie was “so plausible” that the lie was not probative of guilt and the lie ought not to have been left to the jury as one capable of supporting the inference and amounting to corroboration of the complainant’s evidence.[4]
[4]Edwards at 212-213.
The trial judge is called upon to make some assessment of the plausibility of any innocent explanations for the alleged lie before it can be left to the jury as one from which the jury may conclude that the accused has “impliedly accepted responsibility”[5] In my opinion the inference should only be left as one that is open to the jury where the inference is a compelling and prominent one[6] that the lie was told from a recognition that the truth would implicate the accused in the commission of the crime charged. If the lie can be so characterised, the question for the jury is whether they can be satisfied that is the only reasonable inference that can be drawn in the circumstances. Such a direction to the jury is a specific illustration of the general direction which a jury should be given about the drawing of inferences.
[5]R v McCullagh [2005] VSCA 109 at [62] per Vincent JA
[6]See R v Lam & Ors [2005] VSC 288.
In R v Heyde[7] Clarke JA, with whom Gleeson CJ and Stoddart J agreed, said:
“While it is not necessary, and in some cases may be undesirable, to instruct the jury in terms of Lord Lane’s four points it is critical that the jury be instructed that only if they are satisfied beyond reasonable doubt that the accused has told deliberate lies and that the inference should be drawn that his motive for doing so was a fear of the truth, in the sense discussed, should they conclude that the relevant statements of the accused provide affirmative support for the prosecution case. In addition, the jury should be informed that they could only draw that inference if they are satisfied that there is no other reasonable hypothesis for the telling of the lie. In this context the trial judge should be astute to ensure that the jury properly understands that a lie may be explicable upon other hypotheses.”[8]
[7](1990) 20 NSWLR 234
[8]At 246; referred to with approval in R v Donnelly [2001] NSWCCA 394 at [95]
The adoption of the criterion that the inference of a consciousness of guilt must be a compelling and prominent one will not unfairly confine the prosecution case. I am mindful of the observations made in both R v Chang[9] and R v Camilleri[10] and by other appellate courts, that trial judges should not be unduly reluctant to permit the prosecution to rely on lies of this character.
[9][2003] VSCA 149 at [43]
[10](2001) 119 A Crim R 106 at [32]
Circularity of reasoning – the bootstrap argument
It was submitted by counsel for most of the accused that it was impermissible for the prosecution to use the alleged lies as supporting an inference of guilt as this would involve a boot straps argument as the prosecution would have to prove the very facts upon which the guilt of the accused depended.
Counsel for Cuong Lam argued that the prosecution would have to establish that the accused was at the river and performed the acts upon which the prosecution relied to establish guilt before the jury could be satisfied that the accused had told a lie borne from a consciousness of guilt. To reason in such a way was circular and impermissible. He further submitted that Cuong Lam’s claim in the video interview, that he was not present at the river, amounted to a denial that he had committed the offence. Such a denial, it was said, could not be used to support an inference of a consciousness of guilt as it was also a boot straps’ argument. Counsel invoked the admonition by Lowe J in Edmunds v Edmunds[11] that a denial that the accused did the act can never amount to evidence that he did the act.
[11][1935] VLR 177 at 186
Counsel for Hung Van also submitted that the prosecution argument involved an impermissible circularity of reasoning as the prosecution would have to establish the guilt of Hung Van before a jury could conclude that the alleged lies involved an implied admission. Mr Jackson submitted that the prosecution would have to establish that Hung Van was acting in concert before the falsity of the lies was established. It was submitted that this would require the jury to make findings on the same essential facts that the Crown depended upon to establish his guilt. It was argued that if those facts were insufficient to prove the guilt of the accused beyond reasonable doubt, then a circularity of reasoning would be employed if the jury utilised them for the purpose of finding, to some lesser standard, that the accused lied out of a consciousness of guilt and then used such an inference in conjunction with those facts to reach a conclusion of guilt.
Counsel for Linh Van (Johnny) Nguyen adopted the submissions made by counsel for Cuong Lam and Hung Van and submitted that proof that the false denials supported a consciousness of guilt required proof by the prosecution of his client’s guilt. He submitted that a number of the utterances upon which the prosecution relied demonstrated a desire by Johnny Nguyen to distance himself from the conduct of Thanh Nha (David) Nguyen. He submitted that proof of the falsity of these denials and the inference that they were told because of a recognition that if he admitted his association with David Nguyen at the time of the offence he would reveal his own guilt, required the prosecution to establish Johnny Nguyen’s guilt.
Counsel for Long Tran adopted the arguments of counsel for Cuong Lam and Hung Van and submitted that there must be a clear and demonstrable lie which involves something more than an assertion that they were not involved in the commission of the offence.
Counsel for Hong Bui submitted that the prosecution was engaged in a boot straps argument which relied upon proof of the ultimate guilt of the accused to establish that the utterance was a lie borne from a consciousness of guilt. He submitted that the decisions of the Victorian Court of Appeal in Camilleri[12] and Franklin[13] left open the right to argue, in the present circumstances, that the prosecution was seeking to employ a boot straps argument. Reliance was placed upon a passage in the judgment of Nettle JA in R v Russo[14].
[12]Rv Camilleri (2001) 119 A Crim R 106
[13](2001) 3 VR 9
[14](2004) VSCA 206 at [19]
Lies or facts establishing lies an Indispensable Link in a Chain of Reasoning Towards Guilt
A variation of the preceding argument was also advanced by Counsel for Cuong Lam and Hung Van who submitted that the alleged lies concerned facts which were an indispensable part of a chain of reasoning towards the guilt of the accused and the jury would have to engage in circular reasoning
It was submitted that to prove that the assertions made by the accused were lies, the prosecution would need to establish facts essential to the guilt of the accused and would have to disprove facts at the heart of the defence of each accused. Counsel for Hung Van submitted that the lies relied upon by the prosecution required proof of indispensable links in a chain of reasoning towards guilt. He submitted that to establish the lies and the inference for which the Crown contended it would be necessary for the prosecution to establish the guilt of the accused.
Thus it was submitted on behalf of Cuong Lam and Hung Van, that alleged lies in relation to their conduct in Daly Street and Chapel Street or at the scene of the murder were essential facts upon which the Crown relied to establish that they were acting in concert to commit the offences with which they were charged. Counsel for Johnny Nguyen, made a similar submission. He argued that proof of the alleged lies as to the attendance of Johnny Nguyen’s vehicle and its movements at or near the murder scene were essential matters which the Crown was required to establish in proof of guilt. Counsel for Hong Bui further developed the submission made by other counsel that to establish the lie, the Crown would be required to prove essential links in the chain of reasoning towards a conclusion of guilt. He submitted that in accordance with Shepherd v The Queen[15] such facts would have to be proved beyond reasonable doubt. He contended that such a reasoning process was so complex that the alleged lies should not be left to the jury as supporting a consciousness of guilt.
[15](1990) 170 CLR 573.
The reference to evidence being “an indispensable link in the chain of evidence necessary to prove guilt” is drawn from the passage in the joint judgment in Edwards[16] and appears to be a reference to the method of reasoning discussed by the High Court in Shepherd v R[17] where guilt rests upon a conclusion of fact which in turn depends upon a previous conclusion of fact.[18] Where the evidence can be so described each fact must be proved beyond reasonable doubt.
[16](1993) 178 CLR 193
[17](1990) 170 CLR 573
[18]R v Kotzmann [1999] 2 VR 123 at 132; R v Doherty (2003) VSCA 158 [26]
It is necessary to consider these submissions from the standpoint of legal principle. Reference should again be made to the joint judgment of Deane, Dawson and Gaudron JJ in Edwards v The Queen in which the following observations were made:
“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 (case cited). 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.” [19] (emphasis mine)
[19]At 210
If the character of the lie, as one demonstrating a consciousness of guilt, were an indispensable links in a chain of reasoning, it would have be proved beyond reasonable doubt before the jury may conclude that the accused is guilty.[20] But it is difficult to envisage circumstances in which the character of the lie as an implied admission would be an indispensable link in a chain of sequential reasoning towards guilt. Where the character of the lie strengthens the prosecution case but its proof is unnecessary to establish the guilt of the accused, the lie will not in that sense constitute an indispensable link in the evidence.[21] If the phrase “indispensable link in a chain” used in Edwards was a reference to a step in sequential reasoning as discussed by Dawson J in Shepherd, the reference to an indispensable link must in my view be a reference to the facts necessary to establish that it was a lie. Callaway JA in R v Kotzmann[22] considered that such a phrase may not be limited to sequential reasoning but may extend to a wider class of additional facts which must be established beyond reasonable doubt.[23] Where lies are relied upon as “strands in a cable” rather than “links in a chain” President Winneke expressed the view in R v Doherty that the lie may be “so influential that standing alone” it might constitute an indispensable link in a chain of reasoning towards guilt.[24] Ormiston JA in Franklin also suggested that a jury direction would be in accordance with Edwards and Zoneff if, they were instructed that they “might treat evidence of blatant lies” as “an independent and thus indispensable link in the chain of evidence relied on to establish guilt”[25]. It is therefore necessary to treat the term “indispensable links” in the evidence as applying to both sequential reasoning or independent influential facts which may establish or include a lie told out of a consciousness of guilt.
[20]Edwards at 210
[21]Polidano v The Queen [2003] WASCA 93 para [119]
[22][1999] 2 VR 123 at 132
[23]See also R v Koeleman [2000] 2 VR 20 at 30
[24](2003) VSCA 158 [26]
[25](2001) 3 VR 9 at [128]
I understand defence counsel to be submitting that it matters not whether the facts which the Crown would need to establish to prove the lie were part of a sequential line of reasoning or additional facts, it being submitted that if the facts relied upon to establish the lie were essential to the prosecution case or central to the accused’s defence, the lie cannot be probative of the accused’s guilt because it offends the principle against circular reasoning.
The submissions that the inference is not open for the reason that proof of such lies involves a circularity of reasoning because the guilt of the accused must be established or that the lie or the underlying facts are an indispensable link in a chain of reasoning towards guilt or that the facts are central to the accused’s defence, must all be rejected. The fact that the lie may relate to an essential part of the prosecution or defence case or constitutes an indispensable link in a chain of reasoning towards guilt does not deny it the character of an implied admission where evidence may establish its falsity and the motive for which it was told.[26]
[26]R v Zheng (1995) 83 A Crim R 572; R v El Saleh [1998] NSWSC 94; Nestorov v R [2002] WASCA 356 [70]-[71]
The decision in Edwards is predicated upon the view that there is no circular reasoning involved in the contention that the jury, by accepting that a lie has been told, which constitutes an implied admission, would necessarily be deciding the whole case. This was recognised by the Court of Appeal in R v Laz[27] which drew a distinction between such lies and a lie which could only be established by the jury’s ultimate conclusion of guilt. The latter type of lie would involve a “boot straps” argument which could not be countenanced upon any interpretation of Edwards’ case.[28]
[27]R v Laz [1998] 1 VR 453
[28]See R v Gionfriddo and Faure (1990) 50 A Crim R 327 at 332-3.
The warning in R v Laz against circular reasoning was referred to by Nettle JA in R v Russo who observed:
“The decision in Laz is not in doubt and plainly it is not permissible to leave alleged lies to a jury as capable of constituting evidence of consciousness of guilt unless there is evidence that the alleged lies are lies.” [29]
[29][2004] VSCA 206 at [19].
Where there is evidence upon which a jury may find that an assertion of fact by an accused which relates to a material issue is false, the alleged lie may warrant separate consideration as a lie evidencing consciousness of guilt. This is to be contrasted with a lie which consists of a broad denial of guilt which may only be demonstrated to be false by proof of the accused’s guilt of the crime charged. As was stated in R v Gionfriddo, and affirmed in The Queen v Smith,[30] such a lie cannot assist in proof of guilt “for it to do so would be for the prosecution to lift itself by its own boot straps.”[31]
[30][2002] VSCA 219 at [109].
[31]At 332-333.
The extensive submissions advanced on behalf of the accused did not, I regret, distinguish between a lie which could be demonstrated to be false by other evidence, from a lie which required the jury to first determine whether the accused was guilty of the offence charged. In R v Jan Ha Le Trinh[32], Winneke P referred to the “boot straps argument” as arising where the accused has made a simple denial of the offence charged so that proof that it was a lie could only be established by proof by the prosecution of the crime charged.[33] It is only in these latter circumstances that consciousness of guilt becomes a circular argument.[34]
[32][1998] VSCA 137
[33]para [20]
[34]The Queen v Smith [2002] VSCA 219 per Phillips JA at para [124]; R v Laz, at 446; R v Gionfriddo & Faure at 332-3; R v Zheng (1995) 83 A Crim R 572 at 576-7
In The Queen v Smith[35] it was argued that for the jury to find that the accused had lied in the manner contended for by the prosecution, it would be necessary for the jury to have concluded that he was present at the crime scene at the material time. It was submitted that to make such a finding would involve the very essence of the criminal acts charged. The Court rejected the argument that to infer consciousness of guilt from the lie was circular as there was evidence upon which the jury could conclude that what the appellant had said was false without first determining the appellant’s guilt of the offence charged.
[35][2002] VSCA 219.
Where the accused is said to have performed the actus reus of the crime, the presence of the accused at the scene of the crime will invariably be a material fact relating to a central issue in the trial. Frequently the lie upon which the Crown relies as evidencing a consciousness of guilt is a false denial by the accused that he was present at the crime scene at the material time.[36] Thus, for example, in R v Glover[37] the view was expressed that whether the accused had the opportunity to commit the offence was a matter which the jury would regard as essential. However, the accused’s false denial that he had the opportunity “whilst a relevant circumstance was not an essential intermediate step”.[38]
[36]See for example Polidano v The Queen [2003] WASCA 93 paras [110]-[119]; R v Toai Siulai [2004] NSWCCA 152; R v Sang Nguyen [2005] VSCA 120 [18-20]..
[37][2002] NSWCCA 376
[38]para [30]
In Jan Ha Le Trinh the argument was also rejected that a lie may not be left as an implied admission because proof of the facts to establish its falsity were central to the accused’s defence. President Winneke stated:
“It is not, I think, to the point to contend that it was her ‘whole defence’, any more than it would be for an accused to contend that a false alibi is a ‘whole defence’ to a crime alleged to have been committed by him at a particular time at a particular place (see R. v. Perera [1982] VR 901 at 911). The question is whether, upon other established evidence, it is capable of being construed as a deliberate lie told with a particular motive.”[39]
[39]At [21]; see also R v Ambrosi [2004] NSWCCA 23.
The New South Wales Court of Appeal has expressed the same view in R v Cook[40] and R v Ambrosi.[41]
[40][2004] NSWCCA 52 at [63]
[41][2004] NSWCCA 23
Assuming that each of the lies here relied upon involves the assertion of a fact central to the defence or prosecution case, the lie remains one upon which the prosecution may rely where it can be established by evidence other than proof of guilt of the accused that the assertion was false and that it was told because of a realisation that the truth would implicate the accused in the commission of the offence charged. Accordingly, the defence submissions cannot be sustained that there would be any impermissible process of reasoning in the jury’s deliberations, if such lies were left to the jury as capable of constituting implied admissions..
Standard of proof of implied admissions
Since Edwards it has been stated repeatedly in intermediate appellant courts that when lies are relied upon as demonstrating a consciousness of guilt as part of the circumstantial evidence, it is unnecessary that the prosecution establish the lie and its character beyond reasonable doubt.[42]
[42]R v Renzella [1997] 2 VR 88 (proposition 10); R v Kotzmann [1999] 2 VR 123; R v Camilleri (2001) 119 A Crim R 106; R v Adam (1999) 106 A Crim R 510 at [55]; R v Franklin (2001) 3 VR 9; R v Deruiter [2003] VSCA 66 at [32] 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; R v Box & Martin [2001] QCA 272 at [55]
In Franklin’s case[43] Brooking JA, with whom the Chief Justice agreed, was to refer to the Court of Appeal’s earlier decision in Camilleri and certain dicta in R v Laz, none of which it was said could “impinge upon the rule as to the standard of proof laid down by the High Court in Edwards.” By contrast Ormiston JA has maintained that the consciousness of guilt, involving as it does an implied “admission” based upon the language of a “realisation of guilt” as to the commission of the offence is redolent of the serious consequences flowing from its acceptance. In Franklin his Honour, after referring to the tests in Edwards and Zoneff said:
“In short, according to those tests, either the jury is satisfied that the accused has impliedly admitted his guilt in the offence or at least has admitted some essential and disputed element of the offence, or it is not so satisfied. At present, whether or not ‘beyond reasonable doubt’ is used by the trial judge, the effect of the restrictions imposed by the presently accepted tests on the jury is virtually the same. In the present case, although, according to the tests in Edwards and Zoneff, the judge may not have been strictly correct to impose such a high test, in this case, as I would suspect in many others, to do otherwise would have been potentially dangerous having regard to the significance of the lies here told.”[44]
[43](2001) 3 VR 9
[44]para [130]
This issue was again referred to in R v Deruiter by Warren AJA, (as she then was) and with whom Callaway and Buchanan JJA agreed. After referring to the observations of the Chief Justice and Brooking JA in Camilleri her Honour said:
“In so far as the leaving of the three lies to the jury was challenged on the basis that the jury was required to be satisfied beyond reasonable doubt, such challenge was misconceived. Kotzmann and Camilleri make the matter plain. In any event, in the course of his charge the learned trial judge specifically directed the jury that they were required to be satisfied of consciousness of guilt beyond reasonable doubt. His Honour appears, therefore, to have taken the precaution, as trial judges sometimes do, of directing the jury of the need to be satisfied beyond reasonable doubt notwithstanding the principles stated in the authorities. That is often done by trial judges out of an abundance of caution.”[45]
[45]para [32]
It was submitted that as the accused’s alleged conduct in Daly Street, Chapel Street and at the river were indispensable links in a chain of reasoning to a conclusion of guilt, each of the lies and their character would have to be established beyond reasonable doubt.[46] Whether the proof required is beyond reasonable doubt[47] will often depend upon whether the lie is a “strand in a cable” or a “link in a chain”. As stated in Deruiter, trial judges, ex abundanti cautelae adopt the criminal standard of proof where the lies relied upon, though only strands in a cable, assume such importance in the prosecution case that they are likely to assume significance in any reasoning by the jury towards a conclusion of guilt.
[46]Edwards [210]
[47]Shepherd v The Queen at 579-580, 585 and 593; R v Dellapatrona and Duffield (1993) 31 NSWLR 123 at 149-150; R v Fowler [2003] NSWCCA 321.
Standard of proof of implied admissions by a number of accused in a joint trial
It was conceded by counsel for Johnny Nguyen that the alleged lie as to where Johnny Nguyen stopped his car in relation to the intersection of Chapel Street and Alexandra Avenue was one which could be established as a lie and could properly be left to the jury as supporting an inference of a consciousness of guilt.[48] The prosecution contended that the accused Hung Van had told a similar lie. After its reformulation, counsel for Hung Van made a similar concession. Both counsel then submitted that the jury should be directed that such a lie should be proved beyond reasonable doubt.
[48]Originally lie 25 and lie 9 as reformulated by the Crown
Although it was disputed by defence counsel that any other lie should be left to the jury as an implied admission, it was submitted by all defence counsel that if the prosecution was entitled to rely upon such lies for this purpose the jury should be directed that each such lie and its character be proved beyond reasonable doubt. There are a number of powerful considerations that lead me to conclude that this is the appropriate direction in the present case.
This is a joint trial involving seven accused and complex circumstantial facts. Evidence that an accused has made an implied admission of guilt, though it be only one piece of evidence is in most cases likely to be a matter of significance to a jury. They will be in the present trial. The alleged lies said to support an inference of a consciousness of guilt differ in importance in each of the accused’s trials either because of the fact that has been falsely denied or because of the relative importance of that lie within the whole of the circumstantial evidence upon which the prosecution relies in the case against that accused. I have reached the conclusion that in some accused’s cases, lies may be viewed as independent and influential steps towards a conclusion of guilt whilst on other cases that is not so. I would have to direct the jury in some accused’s trials that they should not act upon such lies unless they and their character are proved beyond reasonable doubt. It would be highly undesirable that in a joint trial, the jury should receive instructions suggesting that different standards of proof might be applied by the jury to different lies relied upon by the prosecution as implied admissions. The general principle is apposite that save in exceptional circumstances, the jury should not be directed that they should apply different standards of proof to various pieces of circumstantial evidence.[49] The same standard of proof should be applied to all of the alleged implied admissions.
[49]Shepherd at 579 per Dawson J; Kotzmann at 129, 131 per Callaway JA; R v Doherty [2003] VSCA 158 para [26]; R v Murphy [2004] VSCA 23 para [47]
Implicated in offence charged
It was also submitted by counsel for Hung Van and Johnny Nguyen that I should not find that there was a sufficiently compelling or prominent hypothesis that an alleged lie was told from a realisation that the truth would implicate the accused in the offence or murder. It was submitted that any such lie was explicable on the basis that the accused was fearful that he might be charged either with manslaughter or as being an accessory after the fact. In the case of both Hung Van and Johnny Nguyen, the acts which relate to the offence of accessory after the fact have not been denied but were admitted in each accused’s video interview.
That the lie must relate to a fear that the truth would implicate the accused in the offence charged is now well settled but the accused need not have had a particular offence in mind that relates to the wrong doing the subject of the charge. The reference in Edwards “to the offence charged” was intended to relate the lies to the material wrongdoing as opposed to some other wrongdoing. It is not necessary that the accused be found to have acted out of a consciousness of guilt of a particular offence where the wrongdoing may cover a number of possible charges.[50] More recently the Court of Appeal has confirmed that it would be fanciful to require, as a precondition, that an accused turned his mind to particular alternatives of the crime charged.[51] In R v Chang[52] the Court of Appeal again referred with approval to the decision of R v Woolley in which the submission had been rejected that a trial judge should have directed the jury that lies that might have been evidence of consciousness of guilt only of manslaughter or as an accessory after the fact, both being alternatives to murder, and which were there left to the jury, should have been the subject of some specific direction.
[50]R v Woolley & Ors (1989) 42 A Crim R 418; R v Rice [1996] 2 VR 406; R v Nguyen (2001) 118 A Crim R 479; Banks v The Queen [2003] WASCA 198; R v Box and Martin [2001] QCA 272
[51]R v Burrows [2003] VSCA 130
[52][2003] VSCA 149
Conclusion
The prosecution may rely upon the alleged lies 1, 2, 3, 4, 5, 6, 7, 9, 10 and 13 as supporting an inference of a consciousness of guilt. None of the lies involve boot straps reasoning to demonstrate their character. I need not consider whether in any particular case the lie is of such importance to the prosecution case that it should be viewed as an independent and indispensable link in a chain of reasoning towards guilt or part of a sequential chain of reasoning as the lies and their character should, in the context of this joint trial, be proved beyond reasonable doubt.
The prosecution may only rely on lie 8 as going to the credit of Hung Van, as the alleged false denial relates to his conduct whilst either acting in concert with David Nguyen or assenting to his conduct at the time that injuries were inflicted which caused the death of the deceased, James Huynh. The act, on one view of the evidence may constitute the actus reus of the offence. The lie should not be left to the jury as a piece of circumstantial evidence.
The prosecution may only rely upon lies 11 and 12 as bearing upon the credit of Long Tran and Hong Bui respectively. There will be a real issue as to whether those lies have been demonstrated to be lies and whether competing hypotheses can be sufficiently excluded. I am not satisfied that the hypothesis for which the prosecution contends is sufficiently prominent or compelling.
This ruling does not preclude the prosecution relying upon any matters in the accused’s interviews as bearing upon the credibility of that accused and the account he has given.
It has been said on a number of occasions that it would be preferable if the parties, in the course of their addresses to the jury, did not employ a term such as “consciousness of guilt” because of its possible association with the ultimate question which must be resolved by the jury[53] and its tendency to undermine the presumption of innocence. The expression employed in the joint judgment of Deane, Dawson and Gaudron JJ in Edwards that “the accused knew that the truth of the matter about which he lied would implicate him in the offence” appears to me to be a more satisfactory way in which the argument should be put to the jury.
[53]Franklin per Ormiston JA para [129]; Nguyen per Winneke P; Chang per Ormiston JA
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