R v Mekic
[2004] SASC 134
•14 May 2004
R v MEKIC
[2004] SASC 134Court of Criminal Appeal: Bleby, Gray and Sulan JJ
BLEBY J: In my opinion the appeal should be dismissed. I agree with the reasons of Gray J.
GRAY J:
Introduction
Zeco Mekic, the appellant, was charged with wounding with intent to do grievous bodily harm, larceny and two counts of threatening life. He was acquitted by majority verdict of the charge of unlawful wounding with intent to do grievous bodily harm, but convicted of the alternative charge of unlawful wounding. He was acquitted of all other charges.
Leave to appeal was granted on two grounds:
-The learned trial judge erred in directing the jury to “compare the probability” when considering if any charge had been proved
- The learned trial Judge erred in admitting evidence of a lie told by the accused –
(a) to Detective Yazarloo; and
(b) to a solicitor, Ms D Eszenyi, and then later conveyed to Constable Growden by Ms Eszenyi.
Counsel for Mr Mekic was granted leave to amend the second ground as follows:
-It was an error to admit evidence of a lie told by the accused to his former solicitor and to Detective Yazarloo the lie being that the accused said he had intervened in a fight between the alleged victim and two other men, the accused attempting to help the alleged victim by stopping the fight.
-Evidence of the lie to the accused’s former solicitor (Ms D Eszenyi) should not have been admitted as it was a privileged communication, and the evidence was unsatisfactory as to whether the accused had instructed that solicitor to convey the communication to the police at the time such occurred and waive privilege.
-Evidence of the lie to Detective Yazarloo should not have been admitted, as no caution was administered before the subject lie was stated, and the detective failed to comply with section 74 D of the Summary Offences Act.
-The prosecution relied on the lie as evidence of the accused’s guilt of the charge on the basis that it was told out of a consciousness of guilty. The learned trial judge should have directed the jury that the lie could not be used by it for that purpose.
-It was an error to direct the jury that the lie could be used as evidence of guilt as this implied that the lie was an admission or confession of guilt, and further, ignored the accused’s description of the incident to Detective Yazarloo as an “accident”. Other directions failed to remove this error.
-Alternatively, if the learner trial Judge’s directions on lies were permissible, he erred in failing to direct the jury that in considering the significane of the “lie”, it should have considered the accused’s comment to Detective Yazarloo that the alleged victim was present when the “accident” occurred.
The Crown Case
The Crown case was that on 13 September 2001 Mr Mekic wounded Damir Brajlovic with the intention to do him grievous bodily harm.
On the day of the offence Mr Brajlovic was helping Mr Mekic move house. In the days prior to the incident he had lent Mr Mekic his Nissan EXA vehicle. Mr Mekic had called Mr Brajlovic about three to four days earlier to inform him that his vehicle had broken down. Mr Brajlovic took the vehicle for repair.
On 13 September 2001, the repairer telephoned Mr Brajlovic to advise that his vehicle was ready for collection. Mr Brajlovic left Mr Mekic’s house and collected his vehicle. He paid for the repairs and subsequently collected his girlfriend, Michelle Joanne Ball, from her workplace. Mr Brajlovic and Ms Ball returned to Mr Mekic’s house at Modbury North. Mr Brajlovic asked Mr Mekic to pay for the costs of the repair to the vehicle. Mr Mekic refused to pay. Mr Brajlovic told him that he would give him 24 hours to pay the costs or he would report him to the police.
Mr Mekic became agitated. Mr Brajlovic attempted to leave the house. A confrontation occurred. Mr Brajlovic was stabbed by Mr Mekic with a large flat head screwdriver. The medical evidence established that Mr Brajlovic sustained three injuries on the left arm and one under the armpit. According to Mr Brajlovic, he and Mr Mekic then walked to the rear of the backyard of Mr Mekic’s house. Where Mr Brajlovic pleaded to be allowed to leave. Mr Mekic raised the roller door and Mr Brajlovic left. He told Ms Ball, who was waiting in the vehicle, to leave as he ran down the street.
Mr Brajlovic gave evidence that after he was stabbed, Mr Mekic stole from him a necklace, a ring and a watch, together of the value of about $5000. This offence was the subject of the second count of the information. The third count related to an incident where Mr Mekic allegedly threatened the life of Mr Brajlovic on 13 September 2001 while he was obtaining medical treatment at the Royal Adelaide Hospital. It was said that Mr Brajlovic received a telephone call from Mr Mekic telling him that if he spoke to the police he would “put a screwdriver in his brain”. The fourth count related to Mr Mekic threatening the life of Mr Brajlovic on 18 September 2001 at West Beach. As earlier observed Mr Mekic was acquitted of the second, third and fourth counts.
Dymphna Julianne Eszenyi gave evidence that she was first instructed on 17 September 2001 by Mr Mekic to act as his solicitor concerning the incident with Mr Brajlovic. Ms Eszenyi contacted the police that day and advised Constable Growden that she was Mr Mekic’s lawyer. Detective Constable Yazarloo, the investigating officer, was not on duty. Ms Eszenyi told Constable Growden that Mr Mekic had broken up a fight between Mr Brajlovic and two Yugoslavs. She said that Mr Mekic did not assault anyone. Constable Growden made notes of the conversation. Ms Eszenyi made a note of the fact of the conversation, but not of the contents of the conversation. Constable Growden sent Detective Yazarloo an email immediately following the conversation advising of the information that had been provided.
On 22 September 2001, Detective Yazarloo received a telephone call from a person claiming to be Zeko Mekic. Detective Yazarloo told Mr Mekic that he would not speak to him at that time. He asked Mr Mekic to attend the Holden Hill Police Station with his lawyer. Detective Yazarloo had received the email from Constable Growden and knew Mr Mekic was legally represented. Mr Mekic interrupted Detective Yazarloo and said words to the effect that Mr Brajlovic was in a fight with a couple of people and had received some injuries. Mr Mekic claimed that he had helped stop the fight.
It was the Crown case that the assertions made during the two telephone calls were lies which Mr Mekic had constructed to avoid responsibility for his attack on Mr Brajlovic. Counsel submitted that the lies amounted to some evidence of guilt.
Issues on Appeal
Admission of evidence of telephone conversation involving Ms Eszenyi
The judge concluded that Ms Eszenyi had contacted police and given information pursuant to instructions from Mr Mekic. Counsel for Mr Mekic conceded that if the information given and conveyed to the police by his solicitor was intended to deflect an investigation or to minimise his role, any privilege that may have existed in that information would be waived. Alternatively, if the information was conveyed to further an offence, even if privilege was not waived, the communicated information could be admitted into evidence. Counsel challenged the judge’s conclusion that privilege had been waived. Counsel contended that there was insufficient evidence to establish any waiver of privilege.
Ms Eszenyi gave evidence that she was an experienced solicitor with an established criminal law practice. Although she could not recall the details of her instructions or the relevant conversation, she says that she would not have contacted the police without instructions. In particular, she said that she would not have conveyed her client’s account of the incident without her client’s instructions to do so. The judge was entitled to conclude that Ms Eszenyi had instructions to convey her client’s account and that she acted in accordance with those instructions. It was not suggested that the judge had regard to any irrelevant material or had overlooked any relevant matter. The finding of the judge was made as a matter of probability. This was the appropriate onus to apply to the challenge to the admissibility of the evidence. No basis had been made out to set aside the judge’s acceptance of Ms Eszenyi’s evidence. That evidence allowed the conclusion to be drawn that Ms Eszenyi acted in accordance with her usual practice. There is no substance in the complaint that this evidence was not properly before the jury.
Admission of evidence of the telephone conversation involving Mr Mekic
Counsel for Mr Mekic submitted that the trial judge erred in admitting evidence of the telephone conversation between Mr Mekic and Detective Yazarloo. It was argued that Detective Yazarloo should have administered a caution prior to any conversation with Mr Mekic as he had reasonable grounds to suspect him of having committed the offence.
The challenged evidence was as follows:
Defence Counsel: As at 22 September when Mr Mekic telephoned you, do you say that you knew he was represented by a solicitor.
Detective Yazarloo: He told me that he was.
…
Defence Counsel: When he rang you, you had no reason to refuse to speak to him at that point, did you, because you didn’t know a solicitor was acting for him.
Detective Yazarloo: Regardless – I didn’t know who this person was. I mean, I couldn’t be certain who this person was, whether it was actually Mr Mekic. I wasn’t willing to disclose any information about this case without meeting the person face-to-face. I was very reluctant to speak on the phone; one, I was about to leave the office, and two, simply because these matters always have repercussions. So I was very reluctant and repeatedly told him that I wasn’t going to disclose any information, that he should attend if he was in fact Mr Mekic, he should attend with his lawyer and some identification so we know it is him and that we can get along with this business.
…
Defence Counsel: You were keen to speak to Mr Mekic at the time he rang, weren’t you. You have been looking for him.
Detective Yazarloo: Yes, I was.
Defence Counsel: You proposed to interview him.
Detective Yazarloo: Yes, I did.
…
Defence Counsel: You knew, didn’t you, that you were entitled to caution him then and speak to him.
Detective Yazarloo: Sir, had I been certain that he was in fact the person he was saying he was and even on the telephone, I mean that was the whole reason why I refused to speak about the case to him on the telephone, there was the matter of 74D, the Summary Offences Act, there was a matter of cautioning this person if he was in fact the person who he claimed he was, and I kept reiterating to him that he should really come with his lawyer.
Defence Counsel: When was it indicated that he had a lawyer in this phonecall.
Detective Yazarloo: Sir, the moment he said he was Zeko Mekic I told him I had nothing to say to him unless he was present at the Holden Hill Police Station with video and audio recording equipment going. He mentioned he had a lawyer. I said, ‘Well, in that case you should have your lawyer present as well’ and that was, from my memory, the gist of the conversation. He kept breaking into ‘Damir was at my house and he fought with two Yugoslavs, I had nothing to do with it’. I said ‘Look, I don’t want to hear that, I don’t want to make any comments on this, you should be here with your lawyer’ and he suggested 24 September, the Monday.
Defence Counsel: How long did this call last for.
Detective Yazarloo: A few minutes.
Defence Counsel: How did it end, who ended it.
Detective Yazarloo: I did.
Defence Counsel: What did you say to end it.
Detective Yazarloo: I said ‘Look, I refuse to speak to you’, words to that effect, that I actually refused to speak to him and said that I was going to hang up and I did.
Defence counsel objected to the admission of Detective Yazarloo’s evidence. The judge conducted a voir dire hearing and ruled against the objection. The evidence was admitted at the trial.
The Need for Caution
Once the accusatorial stage of an investigation has been reached a police officer is obliged to caution a suspect before embarking upon an interrogation.[1] The need for such a caution to be given is well established. It arises from basic principle of fairness. In R v Dolan King CJ observed:[2]
The cautioning of a suspect that he is not obliged to answer questions, is the offspring of the rule rendering inadmissible in evidence confessions which have not been made voluntarily. It is also related to the discretion which a trial judge has to exclude evidence, including confessional evidence, if the admission of that evidence would be unfair to the accused. The caution tends to negative any suggestion of involuntariness or unfairness. The omission of the caution in circumstances in which it ought to be given, is not decisive as to the voluntariness of the confession nor of the fairness of admitting evidence of it. The judge must decide those issues by taking all relevant circumstances into account including the omission to administer the caution.
…
It has always been accepted that while the investigation is at the stage at which the police officer is simply gathering information or giving possible suspects the opportunity of clearing themselves, there is no need for the caution. At that point there can be no question of involuntariness or unfairness arising out of omission of the caution. It seems to me, however, that where a police officer has reached a stage in his investigations at which he has reasonable grounds for suspecting a particular person, he ought not to interrogate that person without advising him of his right not to answer questions. This is particularly so, where the police officer is about to embark upon a systematic interview issuing in a typed record of interview or audio or audiovisual tape. Omission to administer the caution at the commencement of such an interview, must put the answers at risk of being rendered inadmissible or excluded in the exercise of the judge’s discretion.
[1] R v Dolan (1992) 58 SASR 501
[2] (1992) 58 SASR 501 at 504-5
Whether or not a caution should be given will depend upon the nature of the information possessed by the police and their belief about the status of the person being interviewed. The relevant test was set out by Doyle CJ in R v Bueti:[3]
In the present case the trial judge found, on the voir dire, that in light of the acceptance by the detectives of what Mr Bueti said, there were not reasonable grounds to suspect him of the commission of an offence. Although the test of whether there are reasonable grounds to suspect a particular person is expressed in objective terms, the existence of such grounds must depend, to some extent, on the view taken by the relevant police officers of the information provided to them. To my mind it would, for example, be impractical for the court to say that in a given situation if the relevant police officers had disbelieved most of what was told to them they would have had reasonable grounds to suspect the commission of an offence, and on that basis to hold that a caution should have been administered, even though the very reason for the police not administering the caution was that they genuinely believed the information given to them.
[3] (1997-98) 70 SASR 370 at 378
In R v Lightfoot[4] King CJ considered that in circumstances in which police had formed a reasonable suspicion of a person’s involvement in an offence not all statements made by the person to a police officer would be inadmissible because of a failure to caution.
I do not think that Mr Heffernan’s argument that Detective Jenkins was under an obligation to caution the appellant when he first spoke to him at the house, is tenable. It is true that at that time the police had an allegation of rape of Vicki by the appellant. There was therefore a clear obligation on them not to question the appellant without first giving the caution; R v Dolan (1992) 167 LSJS 309. Jenkins, however, did not question the appellant. He told the appellant of the allegation of rape but the only question asked was “Did you know she had a perforated eardrum?”, which was really a statement in the nature of conveying information. He responded to the appellant’s question “Is she saying I raped her?” by giving a definition of rape. I think that it might have been better if he had not made that response having regard to the absence of the caution but I do not think that it can be said that his response was a breech of his obligation. Jenkins had no intention of commencing an interrogation but was merely paving the way for the interrogation by Detective Clifford which would follow. I do not think that a caution was required in those circumstances. The appellant was clearly cautioned before the interrogation began.
[4] (1993) 174 LSJS 330 at 332-333
Counsel for Mr Mekic submitted that the police had an interest in talking to Mr Mekic. Detective Yazarloo indicated that he was keen to interview Mr Mekic with respect to the incident. It was said that Detective Yazarloo had acknowledged that he had reasonable grounds to suspect Mr Mekic of committing the offence and should have cautioned him before any conversation on the telephone. Counsel submitted that the evidence of the telephone conversation between Mr Mekic and Detective Yazarloo should be excluded as a matter of discretion.
The Crown’s submission was that Detective Yazarloo had not embarked on an interrogation of Mr Mekic and therefore a caution was not required.
The conversation between Mr Mekic and Detective Yazarloo was initiated by Mr Mekic. Detective Yazarloo expressly stated to Mr Mekic that he did not want to discuss the matter with him on this occasion. He requested that Mr Mekic attend at the police station with his lawyer so a statement could be taken. The evidence which counsel for Mr Mekic sought to exclude was freely given to Detective Yazarloo. It was not given as a response to any question or request for information. Detective Yazarloo was not seeking to interrogate Mr Mekic. In these circumstances the obligation to caution Mr Mekic did not arise.
Compliance with Section 74D
Counsel for Mr Mekic further submitted that Detective Yazarloo was in breach of section 74D(1)(c) of the Summary Offences Act 1953 (SA), that the evidence was inadmissible and that the judge was wrong to exercise his statutory discretion to admit the evidence.
The relevant provisions of the Summary Offences Act are as follows:
74C. In this Part—
"interview" includes—(a) a conversation; or
(b) part of a conversation; or
(c) a series of conversations;
"investigating officer" means—
(a) a police officer; or
(b) a person authorised under an Act to investigate offences and arrest suspected offenders.
74D (1) An investigating officer who suspects, or has reasonable grounds to suspect, a person ("the suspect") of having committed an indictable offence and who proposes to interview the suspect must ensure the following requirements are complied with:
(a) if it is reasonably practicable to record the interview on videotape, a videotape recording of the interview must be made;
(b) if it is not reasonably practicable to record the interview on videotape but it is reasonably practicable to record the interview on audiotape, an audiotape recording of the interview must be made;
(c) if it is neither reasonably practicable to record the interview on videotape nor reasonably practicable to record the interview on audiotape—
(i) a written record of the interview must be made at the time of the interview or as soon as practicable after the interview; and
(ii) as soon as practicable after the interview, the record must be read aloud to the suspect and the reading must be recorded on videotape; and
(iii) when the videotape recording begins (but before the reading begins) the suspect must be invited to interrupt the reading at any time to point out errors or omissions in the record; and
(iv) if the suspect in fact interrupts the reading to point out an error or omission, the suspect must then be allowed a reasonable opportunity to do so; and
(v) at the end of the reading, but while the videotape recording continues, the suspect must again be invited to point out errors or omissions in the record and allowed a reasonable opportunity to do so; and
(vi) if the investigating officer agrees that there is an error or omission in the record, the officer must amend the record to correct the error or omission and if the officer does not agree that there is an error or omission in the record, the officer must nevertheless make a note of the error or omission asserted by the suspect in an addendum to the record of interview.
…
74E. (1) In proceedings for an indictable offence, evidence of an interview between an investigating officer and the defendant is inadmissible against the defendant unless—
(a) the investigating officer complied with this Part; or
(b) the court is satisfied that the interests of justice require the admission of the evidence despite the investigating officer's non-compliance.
(2) If, in the course of a trial by jury, the court admits evidence of an interview under subsection (1)(b), the court must—
(a) draw the jury's attention to the non-compliance by the investigating officer; and
(b) give an appropriate warning in view of the non-compliance,
unless the court is of the opinion that the non-compliance was trivial.
In R v Karger[5] the following observation were made about the operation of section 74 and the meaning of “interview”:
There is no reason in principle why the legislative provisions should not have a broad application or why “interview” as used in s74D(1) should be accorded a restricted meaning. A broad interpretation of the definition of interview does not appear to be contrary to the legislative intention. Having regard to the mischief being addressed by ss74C-E there is every reason to give a broad interpretation to the legislative scheme. In the event that recording equipment is not available the obligation of the investigating officer is to make a written record as soon as practicable of the conversation. There is no requirement for a verbatim record. On the ensuing videotape recorded interview the written record must be read to the suspect who then has the opportunity to point out any error or omission. Such a procedure is not unduly burdensome. It is directed towards meeting the concerns of the court in McKinney & The Queen. The submission that the meaning of “interview” should necessarily be restricted must be rejected
A proposed conversation that relates to a relevant suspicion and to an investigation being undertaken in relation to that suspicion is an “interview” within the meaning of s74D. The investigating officer proposed to have a conversation with the appellant to further his enquiries. He was investigating the appellant as a suspect with respect to the indictable offence of murder. He was following up a matter arising from previous interviews with the appellant. It was at least a possibility that the proposed conversation may have led to the disclosure of important evidence. The fact that the investigating officer may not have appreciated this at the time is not to the point.
[5] (2002) 83 SASR 135 at 165-166
The judge concluded that Detective Yazarloo had failed to comply with the requirements of section 74D in relation to the telephone conversation between himself and Mr Mekic. The judge ruled that the content of the conversation was inadmissible unless it was admitted as a matter of discretion.
Counsel for the Crown submitted that the purpose of the legislation was to protect those who may be vulnerable to police questioning. However, it was contended that if the legislature intended all conversations between police officers and persons of interest related to offences to fall within the requirements of section 74D, it would have been explicit in saying so. In accordance with the observations in Karger, it was said that section 74 applied to those conversations where there was a reasonable suspicion on the part of the police who proposed to interview a suspect with respect to an offence.
While Detective Yazarloo did have a suspicion about the involvement of Mr Mekic in the offending, and did intend to interview him later, the telephone conversation did not amount to an interview such that the requirements of section 74 were enlivened. There was no request for information made by the detective. The information proffered by Mr Mekic did not result from any questioning by the detective. The circumstances of the telephone call and the interchange between Mr Mekic and the police officer did not amount to an interview for the purposes of section 74 of the Act.
The judge found that any breach of the requirements of section 74D was a trivial one in the circumstances. Counsel for the Crown submitted that if contrary to his submission that section 74D did not apply, then the judge correctly exercised his discretion to admit the evidence. Counsel relied on the following observations in Karger:[6]
The interests of justice were overwhelmingly in favour of admission. The evidence, given non-compliance with s74D(1) was admissible in the interests of justice. The judge accepted the investigating officer’s evidence that the breach was not deliberate. The evidence was relevant and probative circumstantial evidence. As there was no challenge to the accuracy of the investigating officer’s evidence, no warning was required. The judge’s alternative conclusion was correct. The evidence of the conversation was properly admitted.
[6] (2002) 83 SASR 135 at 166
Counsel for the Crown submitted that the accuracy of the notes made by Detective Yazarloo at the time of the telephone call was not challenged. Nor was it disputed that in the circumstances, the only practical way available to record the conversation was by the use of written notes. It was accepted that if section 74D had application Detective Yazarloo should have read back his notes of the conversation during the course of a subsequent interview with Mr Mekic. However, it was accepted that he had not done so as he overlooked the matter.
The judge was correct in these circumstances to exercise his discretion to admit the evidence. Any suggested breach of section 74D was not deliberate. There was no challenge to the accuracy of the officer’s notes or his account of the conversation. However as earlier observed, Detective Yazarloo was in any event not in breach of the provisions of section 74D.
Onus of Proof
The relevant part of the judge’s summing up was in the following terms:
Whilst the accused exercised his right not to give evidence, he did call evidence as to his good character. You will recall that the evidence from the President and Treasurer of the Bosnian Club who have known the accused for about two and a half years, which seems to be when he arrived in Australia.
The evidence of his previous good character is evidence which you should take into account in deliberating as to your verdict.
Although it is true that persons of previous good character do commit crimes, nevertheless, an accused person’s previous good character has an undoubted bearing upon the probability or improbability of his having committed the crime charged. You should consider the fact of that good character, together with the other evidence in the case, in assessing the likelihood of the accused having committed the crime.
The accused is entitled to do as he has done; to have the Crown prove to your satisfaction each element of each count and to do so having regard to his good character as you have heard it attested to.
You should bear this in mind when you compare the probability that it has been proved that the accused acted in any way as alleged when regard is had to the criticisms of Brajlovic as inconsistent, prepared to fabricate evidence and then be untruthful about it and to require those close to him to play up to the police in order to underpin a claim for compensation…
Counsel for Mr Mekic argued that the effect of the last two paragraphs of the above extract was to alter the burden of proof from beyond reasonable doubt to one of probability. This arose because the judge directed the jury that the Crown was to prove ‘each element of each count’ having regard to the accused’s good character and then immediately directing the jury to ‘bear this in mind when you compare the probability that it has been proved’ that the accused was guilty. It was submitted that at the conclusion of the summing up this direction reversed the onus of proof.
As King CJ observed in R v Trimboli[7] a trial judge should remind the jury that people do commit crimes for the first time, and that evidence of previous good character cannot prevail against evidence of guilt which they find to be convincing, notwithstanding the previous good character.
… it is desirable in all cases that an appropriate direction be given, especially where the judge discusses the significance to be attached to other pieces of evidence. In many cases it is essential, and in such cases failure to give it will result in a mistrial.
I think that it is possible to lay down some propositions which might be of assistance to the judge at the new trial and to other trial judges.
It is desirable in all cases in which there is evidence as to the accused’s good character that a direction be given as to the use to which that evidence should be put.
No particular form of words is necessary, but the direction should convey to the jury that they should bear in mind the accused’s previous good character when considering whether they are prepared to draw from the evidence the conclusion of the accused’s guilt. They should bear it in mind as a factor affecting the likelihood of the accused committing the crime charged. The judge may add, if he thinks it appropriate in the particular case, that the jury should consider the accused’s previous good character in assessing the credibility of any explanations given by him and, when he has given evidence, his credibility as a witness.
The judge is, of course, at liberty to remind the jury that people do commit crimes for the first time and that evidence of previous good character cannot prevail against evidence of guilt which they find to be convincing notwithstanding the accused’s previous character. This last consideration may apply with particular force to certain types of crime and the judge is, of course, free to point that out to the jury if he sees fit.
[7] (1979) 21 SASR 577
Counsel for the Crown submitted that the judge sought to convey that evidence of the accused’s good character was a ‘yardstick’ by which the credibility of the evidence against him should be measured. This was said to be a step in determining whether or not the charges were proved. It was submitted that this was an appropriate direction.
Counsel for the Crown further submitted that where the judge referred to the task of ‘comparing’, he was referring to the logical process of weighing up good character evidence, pointing to the probability that the accused would not have committed the offence, with evidence to the contrary. It was said that this direction to the jury did not undermine the application of the burden or confuse the standard of proof.
This part of the Judge’s summing up had the potential to confuse. However, in the last two paragraphs quoted from the summing up, the Judge was merely making clear to the jury that, in assessing the likelihood (or the “probability”) of the appellant having committed the crime, they must be satisfied that it had been proved that the appellant acted as alleged. The Judge had earlier directed the jury that where he used the terms “satisfied” or “proved” or other like expressions he meant “proved beyond reasonable doubt”. The lack of any punctuation around the phrase “when you compare the probability” in the last paragraph may tend to disguise what appears to be the true and intended effect of that paragraph. In the context of summing up as a whole, it is clear that the Judge was further emphasising that the Crown bore the onus of proving each element of the offence beyond a reasonable doubt. There is no substance to this ground of appeal.
Lies
Counsel for Mr Mekic submitted that the judge’s direction on lies amounted to a misdirection. The relevant part of the summing up was as follows:
Counsel for the prosecution has submitted to you that the accused has told, and has been responsible for, the telling of lies and that that amounts to some evidence of his guilt.
Generally speaking, the fact that an accused person tells a lie or is responsible for the telling of a lie is not, in itself, evidence of his guilt.
Lies told in certain circumstances may, however, provide some evidence of guilt, this is so where the nature of the lie or the circumstance in which it is told or both, tend to indicate that it was told by the accused, or on behalf of the accused, as a result of a realisation of his guilt and an awareness that the truth would implicate him in the crime. In the present case, there are matters which require your consideration in that regard.
The judge went on to say:
Those matters are the contents of the three telephone calls to which I’ve just referred, and their objective.
In order to consider those alleged lies as evidence of guilt, you must be first satisfied that they were deliberate lies and that they relate to matters which are material to the accused’s guilt or innocence. If you are satisfied on those points, you should then consider whether, in your view, the telling of those lies is indicative of a realisation of guilt and a fear of the truth.
However, you should not be too ready to take the view that the telling of lies is indicative of a realisation of guilt. Sometimes people tell lies for many reasons. They tell lies out of panic, to escape an unjust accusation, in some foolish attempt to improve a version of events that might otherwise be innocent, to protect another person, or to avoid a consequence unrelated to the alleged offence. There may be other innocent explanations for the lies. However, if you reach the view that the lies in question are indicative of a realisation of guilt, you may regard the telling of them as some evidence of guilt and take that fact into account with the other evidence in the case which is acceptable to you in considering whether the accused’s guilt has been proven beyond reasonable doubt.
Counsel for Mr Mekic submitted that the lies in question did not provide positive evidence of the commission of an offence, nor of any admission by Mr Mekic of his guilt. His presence at the scene was not proof of his guilt. The jury should have received a direction that the lies could not be used to prove his guilt.[8]
[8] R v Grosser (1999) 73 SASR 584 at 603
Counsel for the Crown submitted that the lies told by Mr Mekic were of such a character that it was open to the jury to conclude that the lies had been told out of a realisation that the truth would implicate him. It was said that the lies told were at odds with the evidence of other witnesses.
In Edwards v The Queen[9] Deane, Dawson and Gaudron JJ observed:
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) and if it was told by the accused in circumstances in which the explanation for the lie is that he knew that the truth would implicate him in the offence. Thus, in any case where a lie is relied upon to prove guilt, the lie should be precisely identified, as should the circumstances and events that are said to indicate that it constitutes an admission against interest. And the jury should be instructed that they may take the lie into account only if they are satisfied, having regard to those 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 offence, or, as was said in Reg v Lucas (Ruth), because of "a realization of guilt and a fear of the truth".
Moreover, the jury should be instructed that there may be reasons for the telling of a lie apart from the realization of guilt. A lie may be told out of panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the offence. The jury should be told that, if they accept that a reason of that kind is the explanation for the lie, they cannot regard it as an admission. It should be recognized that there is a risk that, if the jury are invited to consider a lie told by an accused, they will reason that he lied simply because he is guilty unless they are appropriately instructed with respect to these matters. And in many cases where there appears to be a departure from the truth it may not be possible to say that a deliberate lie has been told. The accused may be confused. He may not recollect something which, upon his memory being jolted in cross-examination, he subsequently does recollect.
[9] (1991-1992) 178 CLR 193 at 210
The subject matter of the suggested lies raised matters which had the capacity to implicate Mr Mekic in the offence. They were not collateral matters. There were aspects of Mr Mekic’s behaviour that lent support to the submission that discrepancies, inadequacies and inconsistencies were not merely mistakes, attributable to defective memory or the pressure of being under suspicion. The lies told by Mr Mekic were connected with the offence and capable of constituting an admission against interest.[10] The issue for the jury in relation to each of the suggested lies was straightforward.
[10] Edwards v The Queen (1993) 178 CLR 193 at 210
The judge’s directions were appropriate and satisfied the requirements identified in Edwards. The lies were adequately identified. The jury were instructed that prior to using the lies as evidence of guilt, they had to be satisfied that the lies were deliberate lies relating to matters material to guilt or innocence and be satisfied that the telling of the lies indicated a realisation of guilt or a fear of the truth. The jury were directed that they should bear in mind that people tell lies, other than out of some guilty purpose.
The judge adequately assisted the jury. He reminded them of the explanations advanced by defence counsel suggesting that lies were not told, or that the lies resulted from nothing more than a desire by Mr Mekic to distance himself from the events. He also reminded the jury in general terms of reasons why a lie might not support an inference of guilt.
There is no substance in this ground of appeal.
Conclusion
The appeal should be dismissed.
SULAN J: I agree that this appeal should be dismissed. I agree with the reasons given by Gray J.
JUDGMENT CITATIONS LISTED IN ORDER OF APPEARANCE IN JUDGMENT
1 R v Dolan (1992) 58 SASR 501
2 (1992) 58 SASR 501 at 504-5
3 (1997-98) 70 SASR 370 at 378
4 (1993) 174 LSJS 330 at 332-333
5 (2002) 83 SASR 135 at 165-166
6 (2002) 83 SASR 135 at 166
7 (1979) 21 SASR 577
8 R v Grosser (1999) 73 SASR 584 at 603
9 (1991-1992) 178 CLR 193 at 210
10 Edwards v The Queen (1993) 178 CLR 193 at 210
5
8
0