R v Lodhi

[2006] NSWSC 672

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 dealt with.

4 Secondly, I have decided that I should not omit the reference to "a threat of action" where appearing in the statement of the ingredients.

5 Thirdly, I have decided that I should not omit the reference to the various governments and foreign countries mentioned in the relevant element in each count.

6 Fourthly, I have decided that I should not omit the reference to "poison or poisons" in relation to the fourth count.

7 In addition, I have given consideration to the change suggested by Mr Boulten as part of note 1 to the first count, if I may take that as an example. In particular, I am referring to the numbered paragraph 2, under the heading "Note 1" in count 1.

8 I do not accept that it is appropriate to include that as a note to, or any part of, the written directions or, for that matter, any part of the oral directions. No authority was put before me to suggest that I should do so, and it seems to me that the suggested note is not consistent with the legislation under which these offences are created. Indeed, the argument supporting its inclusion seems to hark back to the duplicity argument, which has been rejected by this Court and by the Court of Criminal Appeal.

9 What then is left? What is left is a matter, I think, of drafting technique. There is no dispute between the Crown, Mr Boulten and myself that it is necessary for the Crown to prove a number of specific intentions in relation to all four counts in the indictment.

10 Count 2, as drafted in MFI 29, specifically sets out those intentions, and it is from the seed of that notion that Mr Boulten's drafting suggestions proceed. He argued before me that it would be better for the jury to have similar statements in counts 1, 3 and 4 in the written document.

11 I accept that minds could differ as to the better way of expressing the written directions in counts 1, 3 and 4, but I have, in the ultimate, concluded that my own draft is the one I prefer. That is, perhaps, not a surprising conclusion, but I would like to reinforce it by these observations:

12 First, count 2 falls into a separate category. It does so because the fault elements of the circumstances dealt with in count 2 are not expressed in the section. That means, in accordance with the statute, the Criminal Code Act, the Crown can prove the fault element by reference to the concept of recklessness. But the fact is that that is not the way in which the Crown has sought to prove the matters in count 2, and it has expressly indicated that it seeks to prove the fault element based on the intention of the accused, or, perhaps more accurately, the intentions or state of mind of the accused, in three separate respects.

13 That the Crown may do this, I think, is obvious enough from the Criminal Code Act, and the course adopted by the Crown has been expressly sanctioned by the remarks of Spigelman CJ in Lodhi's case (13 April 2006) in the Court of Criminal Appeal.

14 Counts 1, 3 and 4, however, are situations where the Crown does not seek to depart from the fault element contained in the express language of the sections creating the offences. That fault element is indicated by the words that appear in the legislation and in the indictment "knowing the said connection".

15 The Crown proposes to prove that knowledge or awareness, as the expression is explained in the Criminal Code Act, by seeking to prove beyond reasonable doubt the intentions of the accused. It is only in that regard that, as a matter of drafting technique, I differ from Mr Boulten's suggestions. I do so because it seems to me that it is more appropriate, in the present matter, that I set out for the jury the elements of the offences in accordance with the sections and the Criminal Code Act, and that I then tell the jury, in oral form, of what it is the Crown must prove and how it proposes to go about proving the relevant fault element in counts 1, 3 and 4. However, so that the parties may be satisfied that we are not in any way at odds with one another on that point, I have prepared a further document, which I will now distribute, and which I will mark for identification 34.

16 Those are my reasons for the view I have taken that the document should be in the form it is.

17 So far as my statement of the issues is concerned, as appearing in MFI 34 subject to the parties input on that, this is what I will be saying to the jury. If the jury wants me to give them this material in written form, then I would be prepared to do that as well.

18 That, then, only leaves me to deal with the Crown argument in relation to its request that the issue of certain alleged lies be left before the jury as evidence of consciousness of guilt. I turn now, therefore, to deal with that matter.

19 The Crown has identified six matters, which it wishes to place before the jury as evidence of consciousness of guilt. In each case the Crown asserts that these were instances of lies being told by the accused when he gave his evidence in the witness box. The matters are:

(1) The accused’s evidence that the reference to Post Office Box 2286 on the fax from Eagle Flyers to Deltrex Chemicals, Exhibit “OO”, was a mistake, as distinct from a deliberate attempt to write a false address.

(2) The statement by the accused that he made no attempt to give any false particulars when he wrote details on the ESAA order form, Exhibit “S”.

(3) The accused's statement that there was not any purpose at all in his choosing to write the ingredients and method of manufacture of a petrol bomb in Exhibit “G”.

(4) the accused's evidence that it was not his purpose to disguise the contents of Exhibit “G “by writing it in Urdu.

(5) the accused's evidence that he printed the images that form Exhibit “X” for the purpose of improving his CV; and

(6) that, as at 10 October 2003, he was going to open up a detergent business.

20 The accused has resisted this attempt by the Crown to have these alleged lies left to the jury as evidence of consciousness of guilt. The parties have given me written submissions and made oral submissions in support of their respective positions.

21 I would have liked, perhaps, the opportunity to reflect at more length upon the issues, and perhaps to express myself with a greater degree of elegance than time has permitted to me to do. But, in any event, I have considered the matter and I have come to a decision about it.

22 I have come to the conclusion that I should not permit the six matters the Crown wishes to rely upon to go to the jury as lies evidencing consciousness of guilt. I propose, however, to direct the jury that they may take these lies, if that is what they be, into account on the issue of the accused's credibility. If the jury determines that they do not accept the truth of the relevant statements made by the accused in the witness box, or any of them, this may help the jury to decide whether to accept or reject the evidence he has given generally (R v Heyde (1990) 20 NSWLR 234 at 241G).

23 It is, of course, necessary to bear in mind, as a general proposition on this topic, that, generally speaking, a false denial that a fact occurred does not provide evidence that it did occur (Edmonds v Edmonds (1935) VLR 177 at 186).

24 The statements of principle in Edwards v R (1993) 187 CLR 210, as clarified in Zoneff v R [2000] 200 CLR 234 at 244, may be summarised as follows:

(1) a lie can constitute an admission against interest only if it is concerned with some circumstance or event connected with the offence (i.e. it relates to a material issue).

(2) the lie must be precisely identified, as should the circumstances and events that are said to indicate that it constitutes an admission against interest.

(3) the jury must be satisfied that the lie was a deliberate lie.

(4) the lie may be taken into account only if the jury is satisfied, having regard to the circumstances and events, that it reveals a knowledge of the offence, or some aspect of it, and that it was told because the accused knew that the truth of the matter about which he lied would implicate him in the commission of the offence.

(5) it is necessary for the jury to be reminded that there may be reasons for the telling of a lie apart from the realisation of guilt.

25 I would observe that these beguilingly simple statements of principle are often much more complicated in practice when they come to be applied, especially when a particular situation falls to be examined.

26 My reasons for coming to the conclusion I have stated are as follows:

27 First, the weight of authority and academic opinion favours a very cautious approach to the issue as to whether lies evidencing consciousness of guilt should be left for a jury in a criminal trial. (R v Sutton (1986) 5 NSWLR 697 at 701 per Street CJ; R v Heyde (supra) at 236 per Gleeson CJ; R v Ray [2003] 57 NSWLR 616 at 632 per Wood CJ at CL; Zoneff (supra) at 244 para (15); and see also Wood “Criminal Law Update: Court of Criminal Appeal”, Judicial Review Vol 4 (1999) 217 at page 238).

28 Indeed, Wood J, the former Chief Judge at Common Law, writing extracurially in the Criminal Law Update to which I have referred, indicated that often it is a weak Crown case that needs to rely upon lies as consciousness of guilt.

29 Secondly, the duty of a trial Judge in circumstances such as the present is to enquire, as a preliminary, whether the statements made by the accused in the witness box or prior to trial are capable of being fairly regarded as lies. It would also be necessary for the trial Judge, as a preliminary, to enquire whether it is open to the jury to draw an inference that the lie, if it be a lie, resulted from fear of the truth, in the sense that that expression is mentioned in the authorities.

30 Let me take the first asserted lie here as an example. Count 2 charges that the accused sought information from Deltrex Chemicals concerning the availability of chemicals capable of being used for the manufacture of an explosive or an incendiary device or devices. The accused readily admits that he sought such information from Deltrex, but he says this was a completely innocent enquiry. He explained that it was in connection with a family-related business proposal and had nothing to do with explosives.

31 On one view of the evidence, there was a problem for the accused with this explanation. He had sent a fax to Deltrex Chemicals with the name "Eagle Flyers" on it. He explained, however, that this was the name of a company that he was proposing to register when the business got underway. But he had put a post office box address on the fax document, which was not his. He said that this was a mistake and was, in no sense, a deliberate attempt to write a false address. This is the lie that the Crown wishes to take to the jury as evidence of consciousness of guilt.

32 As I have said above, it is first necessary to enquire whether the statement is capable of being a deliberate lie. It seems to me that the answer to that question is that, in theory, it is so capable of being regarded in that way. Equally, however, it is capable of being regarded as the truth.

33 The point is that there is no immediate piece of independent evidence to demonstrate that it may be a lie. It is really a matter of assessing the credibility of the accused in the light of the entire circumstantial case presented by the Crown, and determining whether he has told the truth or not.

34 This may require, as well, an assessment of his general demeanour and his general credibility, having regard to other explanations or evidence he has given. Moreover, the explanation given by the accused as to the mistake in relation to the postal address is quite central to the accused's innocent explanation for the conduct, which is the subject of count 2.

35 The same point may be made with equal force, perhaps with even greater force, about each of the other five “lies”, in their appropriate context.

36 The Crown accepts this proposition. Indeed, it is the very proposition that is relied on by the Crown to support the first principle identified above in accordance with the Edwards' principles; that is, the statement is concerned with a circumstance or event connected with the offence. Here it is, however, in my opinion, rather more than that. It is really in each central to the explanation offered by the accused.

37 In this context, it is not merely a matter where the jury must determine, whether they accept or reject the accused's evidence, for example, about the postal address appearing on the Eagle Flyers fax sent to Deltrex Chemicals. The point I am making is that not only would the jury have to be satisfied that the accused was not telling the truth; they would have to be satisfied that there is no reasonable possibility that his explanation may not have been true. Both these factors are powerful reasons that point towards a conclusion that the material should not be left to the jury as lies evidencing consciousness of guilt.

38 In addition, there is, I agree, a degree of circularity in the process the jury must engage in, if they were to consider the lies in the way contended for by the Crown. (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 and R v Harron (1996) Crim L.R. 581 at 583).

39 The Crown made a number of responses to the arguments advanced on behalf of the accused. The first is that Edwards itself was a case in which the lies relied upon by the Crown were based upon answers given in the course of cross-examination by the accused. In that regard, the Crown suggested, as I understood it, that the situation was similar to that encountered in this trial.

40 Secondly, at page 209, the Crown pointed to the fact that Deane, Dawson and Gaudron JJ dismissed an argument based upon “circularity” in relation to the proposition that the jury would have to be satisfied beyond reasonable doubt as to the guilt of the accused before determining whether the motive for the lies was a realisation of guilt.

41 Thirdly, the Crown submitted that the three judgments of Hunt CJ at CL in the Court of Criminal Appeal relied upon by the accused in its written submissions were cases in which the Crown had sought to rely upon lies as corroboration of the evidence of other witnesses who had been called in the Crown case. The Crown argued that there was a distinction to be drawn between corroboration cases and other types of case. In the former, there may have been the requirement that there be independent evidence in relation to a particular lie upon which reliance was placed. In the latter class of case, however, the Crown did not seek to rely upon the accused's lies as corroboration of the evidence of any other witness.

42 Finally, the Crown drew attention to the reasoning of Clarke JA in Heyde's case at page 246. There his Honour had said:

“My conclusion is that there is only a very limited class of lies by an accused which are capable of constituting corroboration of the evidence of a prosecution witness. For my part, I think that the most helpful test is that which emerges from Eade and it is only lies which suggest that the liar cannot give an explanation of a proved fact or facts, or that he is unable to account for what the witnesses say they saw in any way consistent with his own innocence, which are capable of providing corroboration."

43 The Crown suggested that this statement was in accord with the approach it is adopting in the present matter. As to the first point, it might be more accurate, I think, to say that Edwards was a case in which the lies relied upon by the Crown were said to have arisen in cross-examination of the accused. That much is correct. However, they were said to be lies because they were asserted to be in direct conflict with the evidence-in-chief which the witness had given. But, of course, that is not the situation in the present case.

44 I should add, however, that the majority in Edwards was not entirely satisfied that the statements given by the accused in his evidence-in-chief involved a deliberate lie. The majority acknowledged that there were some differences in the evidence-in-chief and cross-examination. To the extent that they might have revealed a lie during cross-examination, the lie thus revealed was not a lie with any real degree of probative value. In addition, there was an innocent explanation that further robbed it of probative value in terms of pointing to the guilt of the accused.

45 The second point relates to the argument rejected by the High Court that there was circularity involved in part of the reasoning process stated in, and quoted in, R v Lucas (Ruth) (1981) QB 720 at 724. The Edwards principles, in large part, emerged from this decision. The High Court rejected this argument because it pointed out that an admission constituted by the telling of the lie may be considered together with other evidence and, for that purpose, it does not have to be proved beyond reasonable doubt. It may, for example, be considered together with the other evidence, which, when regarded as a whole, must establish guilt beyond reasonable doubt if the accused is to be convicted (see Edwards at page 210).

46 The point relied upon by Hunt CJ at CL in Zheng's case is rather a different one, I think. That was a case in which the police had given evidence of the accused's criminal activities in a car park. He himself gave evidence that he was in the car park, but he said he was engaged in an innocent activity. He said he was cleaning cars in the car park. It was that assertion that was said to constitute the crucial lie.

47 The point made by Hunt CJ at CL was that there was no other evidence to demonstrate that this was a lie, beyond the evidence of the police officers, who said they saw him providing heroin in the car park. As his Honour rightly observed, in that particular instance, it would be necessary for the jury to accept the evidence of the police officers before they could determine that the accused was lying. This was the circularity to which his Honour made reference.

48 The contrary situation might be observed in a case such as Richard Adam (1999) 106 A Crim R 510. In that case, the Court of Criminal Appeal was considering an appeal by the appellant which arose out of a trial in which he had been convicted of maliciously inflicting grievous bodily harm on one Constable David Carty in the car park at the Cambridge Tavern at Fairfield.

49 One of the issues which arose in the appeal was whether the trial Judge had erred in leaving an alleged lie to the jury as evidence of consciousness of guilt. The appellant, when interviewed by the police, had said that he had not gone anywhere near a police officer lying in the car park of the Cambridge Tavern on that evening. It appears that, in the same record of interview, he had conceded however that he had a considerable amount of blood spattering on his boots at the relevant time. So, it was in that context that the Court of Criminal Appeal agreed with the trial Judge that there was evidence capable of allowing the matter to be left to the jury as a lie evidencing consciousness of guilt.

50 It seems to me that the point made by Hunt CJ at CL in Zheng's case is a similar one to that which could be made about the first lie sought to be relied upon by the Crown in the present trial. There is no independent evidence to demonstrate that the accused was telling a lie when he said that he simply gave the postal address mistakenly. One would have to conclude, from the circumstantial case generally, that this was a lie. Therein, it seems to me, lies the circularity.

51 The Crown has, of course, argued that there is evidence which might make the accused's assertion otherwise unbelievable. For example, the Crown said it appears that he is a very careful architect; very precise in his job. It does not appear, from other documents he has completed, that he is a person who makes mistakes in filling out forms.

52 All this may be true, but this material is part of the general circumstantial case, as I see it. I agree with the Crown entirely that the jury may be perfectly entitled to disbelieve the accused. But there is no particular piece of evidence which can be pointed to in order to demonstrate that the accused's statement in this regard is capable of being regarded as a lie. In fact, Clarke JA in Heyde's case, shortly before the passage relied upon at page 246, made a similar point in one of the examples he gave. His Honour said, at page 245 line G:

“What I think emerges from the authorities and commonsense is that the importance of the subject matter of the allegedly false statement is critical for the drawing of an inference of consciousness of guilt. For instance, if the issue was whether the complainant consented to sexual intercourse, the statement by the accused to the effect that immediately prior to the relevant time the complainant was wearing a red jumper, which is contradicted by the complainant and an independent witness, will, except in extraordinary circumstances, be quite incapable of supporting an inference that the accused lied because of the consciousness of guilt. On the other hand, a denial by the accused that he was anywhere near the scene of the crime, which is later retracted in the presentation of a defence of consent, is eminently capable of supporting the relevant inference."

53 Although his Honour was dealing with the type of lie that will support an inference of guilt, it is important to note that his Honour gave an example where an earlier statement had been shown, by other contradictory evidence, to be false, or at least arguably so.

54 In Zoneff v R, at page 258, paragraph 60, Kirby J gave a further example, which is illustrative of the distinction. His Honour said:

“Probative lies, on the other hand, are those 'which naturally indicate guilt...a hard test to satisfy' ( R v Toia (1982) 1 NZLR 555 at 559). This is 'a hard test' precisely because it is rare that a lie about a particular matter will be so crucial as of itself, if proved, to establish directly guilt beyond reasonable doubt of a criminal offence. It could happen if, for example, the lie related to an object in dispute linked to the offence. Take a handkerchief with bloodstains, proved by DNA evidence to be that of the victim but falsely attributed by the accused to be a nose bleed. It is testimony of this kind that has been explained as evidencing a 'consciousness of guilt'. It is said to be such a lie because the accused... knowing the truth would necessarily, and without more, establish guilt of the offence charged."

55 At page 259 Kirby J drew attention to the defect in the consciousness of guilt theory in his own example, where he pointed out that evidence of the kind he mentioned may prove no more than that the accused had some connection with the wrongdoing, but one which fell short of demonstration of guilt. He gave, as an instance, the situation where the bloodstained handkerchief might have been handed to the accused by a family member, or lover, whom he or she wished to protect.

56 The point I am making here, though, is that it seems to me that there must be some evidence, whether it is described as independent or separate, by which one can say that the statement made by the accused in the witness box is capable of being regarded as a lie. That is not the situation here, although the jury may conclude, in the ultimate, having regard to the general body of evidence that a lie has been told.

57 The next point relied upon by the Crown is the argument relating to corroboration. I do not perceive that the distinction the Crown seeks to make is a valid one. It is true that some of the cases referred to by the accused are cases where corroboration was involved, but Zheng's case was not, nor were the two English authorities to which I have earlier made reference. As I understand it, they dealt with defences of alibi. The alibi material was alleged to be a lie told by the accused in each case.

58 Finally, I consider that the confusion that is likely to arise from the circularity of the reasoning necessary to comprehend an Edwards' type direction in the circumstances of this trial is likely to be further compounded by the fact that the Crown also wishes to rely upon other “lies” told by the accused. They however, are to go before the jury only on the issue of the general credit of the accused.

59 There are, I accept, distinctions that can be drawn between the two types of lies when they are examined in their precise context, but the overall effect will be, I consider, to confuse the jury and to make what is otherwise a simple task quite a complicated task. I do not think it is fair to the accused to allow this to happen. For that matter, I do not think it is really fair to the Crown case either.

60 If the Crown is confined to the situation where the alleged lies are taken into account only on the issue of credibility, as I think they should be, then, in my view, the Crown retains, nevertheless, a powerful forensic weapon in argument in its closing address.

61 Those are my reasons.

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