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R v Lodhi

R v Lodhi

Case [2006] NSWSC 672 31 May 2006

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CITATION: Regina v Lodhi [2006] NSWSC 672

JUDGMENT DATE :
31 May 2006

JUDGMENT OF: Whealy J at 1

DECISION: Decline to allow lies to be used as evidence of consciousness of guilt.

CATCHWORDS: Criminal law: lies as consciousness of guilt - circularity - need for independent or separate evidence to point to untruthfulness - lies confined to credibility issue

LEGISLATION CITED: Criminal Code Act

CASES CITED: Lodhi (NSWCCA 13 April 2006 per Spigelman CJ)
R v Heyde (1990) 20 NSWLR 234 at 241G
Edmonds v Edmonds (1935) VLR 177 at 186
Edwards v R (1993) 187 CLR 210
Zoneff v R [2000] 200 CLR 234 at 244
R v Sutton (1986) 5 NSWLR 697 at 701 per Street CJ
R v Ray [2003] 57 NSWLR 616 at 632 per Wood CJ at CL
Wood "Criminal Law Update: Court of Criminal Appeal", Judicial Review Vol 4 (1999) 217 at page 236
Zheng v R (1995) 83 A Crim R 572 at 576-77 per Hunt CJ at CL
R v S T (1997) A Crim R 390 at 394
Mercer v R (1993) 67 A Crim R 91 at 98
R v Middleton [2001] Crim L.R. 251
R v Harron (1996) Crim L.R. 581 at 583
R v Lucas (Ruth) (1981) QB 720 at 724
Richard Adam (1999) 106 A Crim R 510

PARTIES: Regina v Faheem Khalid Lodhi

FILE NUMBER(S): SC 2005/1094

COUNSEL: Mr R. Maidment SC; Mr G. Bellew - Crown
Mr P. Boulten SC; Mr P. Lange - Accused

SOLICITORS: DPP (Commonwealth) - Crown
Michael Doughty Solicitor - Accused

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

WHEALY J

WEDNESDAY 31 May 2006

2005/1094 - REGINA v Faheem Khalid LODHI

JUDGMENT - - On written directions to go to the jury and Crown's right to rely on lies as consciousness of guilt

1 HIS HONOUR: There are a number of issues that I need to discuss in this collective decision. I say it is a collective decision because it is dealing with several disparate matters.

2 The first matter is the question of the form of the written directions to go to the jury. MFI 29 is the document that I originally handed out to the parties. Mr Boulten SC provided me with a document, which I think we marked for identification as well, MFI 30. I have come to the decision that the form of written directions to go to the jury should be in accordance with a new document I have prepared, which I will hand out to the parties and which will be marked for identification 33.

3 The effect of MFI 33, when contrasted with the earlier documents marked for identification, is that, generally speaking, I have preferred my original draft to that put forward by Mr Boulten, although I have made a specific change in counts 1, 3 and 4, in (c), where I have specifically included the intention of the accused as part of the element there…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Lodhi

Details

AGLC: R v Lodhi [2006] NSWSC 672
Case: [2006] NSWSC 672
Decision Date: 31 May 2006

CaseChat Overview and Summary

In the case of R v Lodhi, the respondent was charged with murder and was subsequently acquitted by a jury. The respondent appealed against the conviction, arguing that the trial judge erred in admitting certain evidence and in giving instructions to the jury concerning the lies told by the respondent. The appeal was dismissed by the Court of Criminal Appeal and the respondent sought special leave to appeal to the High Court of Australia. The High Court was required to consider whether the trial judge's instructions to the jury regarding the lies told by the respondent constituted an error of law and whether the admission of certain evidence was an error of law.

The High Court held that the trial judge's instructions to the jury regarding the lies told by the respondent did not constitute an error of law, as they were consistent with established principles of law and did not unfairly prejudice the respondent. The Court found that the trial judge's instructions correctly focused the jury's attention on the issue of the respondent's credibility, rather than suggesting that the lies themselves were evidence of guilt. The Court also held that the admission of certain evidence was not an error of law, as it was relevant to the issues before the jury and did not unfairly prejudice the respondent. The High Court found that the trial judge had exercised his discretion appropriately in admitting the evidence.

The High Court further held that the circularity argument put forward by the respondent was misplaced, as the trial judge's instructions did not suggest that the lies told by the respondent were evidence of guilt, but rather that they were relevant to the issue of the respondent's credibility. The Court found that the trial judge had appropriately instructed the jury that they were the sole judges of the facts and that they were not bound to accept any evidence as true. The High Court held that the trial judge's instructions were consistent with established principles of law and did not unfairly prejudice the respondent.

The High Court dismissed the appeal and refused special leave to appeal. The Court found that the trial judge had correctly exercised his discretion in admitting evidence and in giving instructions to the jury regarding the lies told by the respondent. The Court held that the trial judge's instructions were consistent with established principles of law and did not unfairly prejudice the respondent. The Court found that the circularity argument put forward by the respondent was misplaced and that the trial judge had appropriately instructed the jury on the issue of the respondent's credibility.

Orders