R v Moussa

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Moussa [2001] NSWCCA 427

FILE NUMBER(S):
60110/01

HEARING DATE(S): 20/09/01

JUDGMENT DATE: 15/11/2001

PARTIES:
Regina v Victor Ian Moussa

JUDGMENT OF: Giles JA Howie J Carruthers AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 99/11/0418

LOWER COURT JUDICIAL OFFICER: Kinchington DCJ

COUNSEL:
R A Hulme - Crown
S J Odgers SC - Appellant

SOLICITORS:
S E O'Connor - Crown
Kremner Townsend - Appellant

CATCHWORDS:
Criminal Law - Evidence - Confession and Admisions - Crimes Act s 424A - reasonable excuse for failure to record
Practice and Procedure - Search and Seizure of Goods - whether search lawful - Summing Up - Failure to give directions on lies - Zoneff v the Queen (2000) 200 CLR 234
Appeal at New Trial - Finding of fact by trial judge - scope of appeal - Criminal Appeal Rules, rule 4 - relevance of affidavit by trial counsel

LEGISLATION CITED:
Drug Misuse and Trafficking Act 1985
Crimes Act 1900 - ss 357, 424A
Evidence Act 1995 - ss 86, 138
Criminal Procedure Act 1986 - s 108

DECISION:
The appeal is dismissed.

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

60119/01
GILES JA
HOWIE J
CARRUTHERS AJ
DATE: THURSDAY 15 NOVEMBER 2001

REGINA v VICTOR IAN MOUSSA
JUDGMENT

GILES JA: I agree with Howie J.
HOWIE J: The appellant was indicted before a jury on two counts of supplying a prohibited drug contrary to the provisions of the Drug Misuse and Trafficking Act. Each count related to the supply of the drug commonly known as ecstasy and the first count concerned not less than a commercial quantity of that drug. The appellant was convicted on each count and sentenced by his Honour Judge Kinchington, on the first count, to imprisonment for 4½ years with a non-parole period of 3 years, and on the second count, to a fixed term of 3 years. The appellant appeals against his conviction but there is no application for leave to appeal against sentence.
Both offences arose from an incident when the appellant’s motor vehicle, in which he was travelling as a passenger, was stopped by two police officers. The circumstances in which the police officers came to require the vehicle to pull over and what happened thereafter were very much in dispute and were at the heart of the issues that the jury had to determine. In essence the Crown’s case was that, on searching the vehicle, the police found a quantity of tablets in a computer case in the boot. On analysis these tablets were found to be ecstasy. The two charges arose because there were two different types of drugs found in the case. The police officers gave evidence of a conversation with the appellant when the drugs were found in which, they alleged, the appellant admitted he was in possession of the tablets and from which the jury might infer that he knew they were prohibited drugs.
The appellant denied the version of the conversation given by the police officers. His case was that he had no knowledge of the computer bag or its contents and told this to the police officers. He gave evidence before the jury that a person named Gonclaves, who had been lent the vehicle by the appellant so that he could use it while repairs were carried out on his vehicle, must have placed the case in the boot. There was evidence called in the defence case of an allegation that Gonclaves had supplied ecstasy tablets to another person on another occasion.
The single issue for the jury to determine was whether they were satisfied beyond reasonable doubt that the version given by the police officers of what happened after the appellant’s vehicle was stopped by them was a reliable one. The trial was hotly contested on both sides. There was a number of, what his Honour in his summing up referred to as, peripheral issues that went chiefly to the credit of the police officers. One of these related to a defence exhibit (Exhibit 1) that purported to be a guarantee for tinting of the windows of the appellant’s motor vehicle. By the end of the trial there was no dispute that this document was a forgery. The significance of this matter in the trial gives rise to one of the grounds of appeal and I will return to it later in this judgment.
There were two main issues relating to admissibility of evidence that the trial judge needed to determine. These were at the crux of the Crown’s case, and were concerned with the legality of the search of the appellant’s vehicle and the admissibility of the conversation that took place after the computer bag was discovered in the boot. These two matters formed the subject of a voir dire hearing and pre-trial ruling by his Honour. It should be apparent by now that his Honour resolved the questions of the admissibility of this evidence in favour of the Crown. His decisions in that regard are the subject of the first two grounds of appeal to which I will now turn.
Admissibility of evidence of the search
The first ground of appeal concerns the admissibility of the evidence of the search of the appellant’s vehicle and the finding of the drugs in the computer case. The issue that arose was the lawfulness of the search of the appellant’s vehicle. The particular matters, which the trial judge was called upon to determine, were, firstly, whether the appellant had consented to the search, and, secondly, if he had not, whether the search was authorised under s 357 of the Crimes Act. Because in my view the attack upon his Honour’s finding on the first of those matters lacks any merit, it is unnecessary to refer in detail to the second. However, the particular question arising under that provision was whether the police officer had reasonable grounds to suspect that the appellant was in possession of a pistol in the motor vehicle.
The evidence given by Constable Zimmerman was that on 29 May 1997, while on patrol in a police vehicle, he saw a Commodore vehicle turn right at a set of traffic lights. As it did so, the four occupants looked toward the police vehicle. The officer thought that this was unusual and requested that the driver of the police car, Constable Grosse, follow the vehicle. Constable Zimmerman made a check of the registration number of the vehicle and was informed that the registration had been cancelled for fine default. The siren of the police car was activated and in response the vehicle pulled over to the side of the road.
The appellant was in the front passenger seat when the police officers approached the vehicle. A conversation took place between the officer and the appellant in relation to the status of his licence. After making some inquiries, the officer informed the appellant that his licence had been cancelled and that the appellant had been made aware of that fact some days earlier by the highway patrol. The appellant was then asked whether he held a current pistol licence and, according to Constable Zimmerman, he confirmed that he did.
Constable Zimmerman gave evidence that the appellant at this time appeared “very agitated, very nervous” and was “shuffling from foot to foot”. The officer formed the view that the appellant might be carrying a pistol and decided to search the motor vehicle to look for “anything illegal that didn’t belong to him that I should know about”. He said that this included a pistol. According to the officer the following conversation took place:
“I’m now going to search your car. Is there anything in the car that is illegal or does not belong to you that I should know about?”
The [appellant] then said: “No, go ahead and search it.”
The appellant, at the officer’s request, opened the boot of the vehicle and the constable then made a search, locating the computer bag containing the tablets.
The appellant gave a different version of these events. He said that after the vehicle stopped Constable Zimmerman asked him if he was the owner of the vehicle and, when he affirmed that he was, he was told to step out of the vehicle. A conversation, which it is unnecessary to relate, then took place about the appellant’s licence. The appellant gave evidence that, when asked if he had a pistol licence, he said that he did not.
In evidence in chief on the voir dire the appellant stated that Constable Zimmerman then said, “We are now going to search the car. Have you got anything in the car that is not supposed to be there?”. The appellant answered, “No”. The constable was given the keys by the driver and opened the boot and searched it.
In cross-examination of the appellant the following questions and answers occurred:
Q.           Then he told you “I’m going to search your car is there anything in the car that is illegal or does not belong to you that I should know about”?
A.           No his exact words were “Is there anything in the car that’s not supposed to be there”.
Q.           You said, “No, go ahead and search it”?
A.           That’s right.
The defence submission made to the trial judge at the conclusion of the voir dire was that his Honour should find that the search was unlawful because the police officer did not have the consent of the appellant to search his vehicle and had no reasonable grounds to suspect that the appellant was in possession of a pistol. It was further submitted that, if the search was found to be illegal, his Honour should refuse to admit the evidence, see s 138 of the Evidence Act.
At the conclusion of the voir dire the trial judge indicated that he intended to admit the evidence and gave a short statement of his reasons for this decision. After referring briefly to the evidence in the voir dire, his Honour said:
“Having considered that evidence and the competing submissions made on behalf of the Crown and the accused overnight, I have come to the conclusion firstly that the evidence in question was not improperly obtained and secondly that even if it was improperly obtained that I should not exercise my discretion in favour of the accused and exclude it from being placed before the jury to be sworn herein.”
The trial judge gave more extensive reasons about a week later to the same effect and it is unnecessary to refer to that judgment.
There are two things that can be said about the determination made by his Honour on the question of the admissibility of the evidence of the search and the finding of the tablets: first, the appellant bore the onus of proving on the balance of probabilities that the search was unlawful or improper within the terms of s 138 of the Evidence Act; second, the findings made by his Honour were matters of fact.
This Court has a limited power to intervene on questions of fact decided by a trial judge when determining whether to admit or reject evidence. The Court cannot overturn a trial judge’s finding of fact simply because it would have come to a different finding. This is particularly so where, as here, the finding is based principally on a determination of the credit of witnesses who gave evidence before the trial judge. In R v Kyriakou (1987) 29 A Crim R 50 at 57 Yeldham J, with whom the other members of the Court agreed, said:
“His Honour held that the confession was voluntary. That was a finding of fact which it was open to him to make, and I am quite unable to conclude that he erred in that conclusion. This Court does not sit in judgment from factual findings made by trial judges on the voir dire. If there is no evidence to support a finding, or if a judge has applied wrong principles, or if the evidence is all one way, then this court, in order to prevent injustice, will intervene, but I am far from satisfied that the present situation is a case of this nature.”
In R v O’Donoghue (1988) 34 A Crim R 397, Hunt J (as he then was), giving the leading judgment of the Court, stated:
“Before considering that submission, it is as well to make clear the limits to this Court's power to review the decision of a trial judge to admit evidence of a confessional type. Although the admissibility of evidence is a question of law, that decision, particularly where there has been a voir dire, will often depend in turn upon the resolution of factual issues by the trial judge (and not the jury) and sometimes upon the exercise of a discretion by him. The usual limits upon an appeal against the exercise of a discretion are well known, but those upon an appeal from such findings of the trial judge in a criminal trial do not appear to be so well known.
It is important to emphasise that, unlike appeals to the Court of Appeal in civil cases, an appeal to this Court is not by way of rehearing. An appeal which is not by way of rehearing is no more than the right to have a superior court interpose to redress the error of the court below: A-G v Sillem (1864) 10 HLC 704 at 724; 11 ER 1200 at 1209; Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73 at 109. Error may be demonstrated if there is no evidence to support a particular finding, or if the evidence is all one way, or if the judge has misdirected himself. But this Court has no power to substitute its own findings for those of the trial judge. The members of this Court may individually disagree with the findings which were made, but the court cannot for that reason interfere with those findings. It is only where the very narrow basis upon which this Court can intervene in relation to a trial judge's findings of fact has been established that the conviction can be set aside, and then only if the error has led to a miscarriage of justice: see Merritt and Roso (1985) 19 A Crim R 360 at 372-373; Kyriakou (1987) 29 A Crim R 50 at 60-61.
Similar statements have been made in numerous judgments of this Court, see R v Khouzame [2000] NSWCCA 505 in which reference is made to many of these decisions.
In my opinion it was well open to his Honour to determine the facts as he did. It cannot be said that there was no evidence upon which he could find that the appellant gave his consent to the search of the vehicle or that it was unreasonable to make that finding. Even though the appellant’s consent may have been irrelevant so far as the police officer was concerned, if the appellant did in fact consent to the search, then it could not be illegal. This is so regardless of the state of mind of the police officer or whether or not the search was authorised under any statutory provision: DPP v Leonard [2001] NSWSC 797. It is, therefore, unnecessary for this Court to determine whether it was open to his Honour to find that the police officer had reasonable grounds for the suspicion that entitled him to search the vehicle.
It is also unnecessary in determining this ground of appeal to consider the exercise of the discretion by the trial judge under s 138. However, I simply note that, from what his Honour said about how he would have exercised that discretion, he would have been in error had he been required to exercise it. His Honour appears to have misapprehended the nature of the discretion arising under s 138(1). If the trial judge had found that the search was unlawful or improper within the terms of s 138, then the question he was to ask himself was whether the evidence should be admitted on the basis of the balancing exercise required to be performed under the section and taking matters relevant to that exercise into account, including the various matters referred to in s 138(2). Before the evidence could be admitted, the discretion had to be exercised in favour of the Crown and not, as his Honour appears to have believed, in favour of the appellant.
Admissibility of evidence of admissions
The second ground of appeal asserts that his Honour erred in admitting the evidence of statements allegedly made by the appellant to the police officer when the tablets were found in the computer bag. It is unnecessary to set out these statements because there is no suggestion that they did not fall within the definition of an “admission” for the purposes of s 424A of the Crimes Act, the provision governing the admissibility of the evidence at the time of the trial, see now s 108 of the Criminal Procedure Act; and R v Horton (1998) 45 NSWLR 426 and R v Esposito (1998) 45 NSWLR 442. The statements were relied upon by the Crown to prove that the appellant had knowledge both of the presence of the tablets in the bag and that they were prohibited drugs and hence that he was in possession of them.
It was conceded by the Crown, both before the trial judge and before this Court, that, because the police officers had not electronically recorded the statements allegedly made by the appellant at the boot of the vehicle, the evidence concerning them could not be admitted unless the trial judge found that s 424A had been satisfied. The onus was upon the Crown to persuade the trial judge of that matter on the balance of probabilities.
Section 424A was as follows:
"424A. Admission by suspects
(1) This section applies in relation to evidence of an admission within the meaning of this section.
(2) Evidence of an admission is not admissible unless:
(a) there is available to the court a tape recording made by an investigating official of the interview in the course of which the admission was made, or
(b) if the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in paragraph (a) could not be made, there is available to the court a tape recording of an interview with the person who made the admission about the making and terms of the admission in the course of which the person states that he or she made an admission in those terms, or
(c) the prosecution establishes that there was a reasonable excuse as to why the tape recordings referred to in paragraphs (a) and (b) could not be made.
(3) The hearsay rule and the opinion rule (within the meaning of the Evidence Act 1995) do not prevent the admission or use of a tape recording as mentioned in subsection (2).
(4) In this section:
"admission" means an admission:
(a) that was made by a defendant who, at the time when the admission was made, was, or ought reasonably to have been, suspected by an investigating official of having committed an offence, and
(b) that was made in the course of official questioning, and
(c) that relates to an indictable offence other than an indictable offence that may be dealt with summarily without the consent of the accused.
"investigating official" means:
(a) a police officer (other than a police officer who is engaged in covert investigations under the orders of a superior), or
(b) a person appointed by or under an Act (other than a person who is engaged in covert investigations under the orders of a superior) and whose functions include functions in respect of the prevention or investigation of offences, prescribed by the regulations for the purposes of this definition.
"official questioning,” means questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence.
"reasonable excuse" includes:
(a) a mechanical failure, or
(b) the refusal of a person being questioned to have the questioning electronically recorded, or
(c) the lack of availability of recording equipment within a period in which it would be reasonable to detain the person being questioned.
"tape recording" includes:
(a) audio recording, or
(b) video recording, or
(c) a video recording accompanied by a separately
but contemporaneously recorded audio recording.
(5) This section does not apply to an admission made before the commencement of this section."
Before the evidence could be admitted, the trial judge had to be satisfied that there was a reasonable excuse both for the failure to record the admissions when they were made to Constable Zimmerman at the boot of the motor vehicle and for the failure to record at a later time any adoption by the appellant of the admissions alleged to have been made by him.
Once again it should be noted that a finding as to whether a reasonable excuse exists for the failure to make a recording of an admission under s 424A is a finding of fact. In respect of the failure to record the admissions at the boot of the vehicle, the trial judge held that there was a reasonable excuse because it was impracticable for Constable Zimmerman to have made an electronic recording of that conversation. No challenge is made to that finding on the hearing of this appeal.

However, there is a challenge made to the finding of the trial judge that there was a reasonable excuse for the failure to make an electronic recording of an adoption by the appellant of the earlier admissions and, therefore, it is necessary to refer very briefly to the evidence concerning the failure of the police to make any recording of an adoption by the appellant of the earlier admissions.
On 17 July 1999 the appellant and his solicitor voluntarily attended at Canterbury police station. Constable Colreavy said to the appellant in the presence of his solicitor:
“I wish to ask you some questions in relation to an incident where 654 tablets were located in the boot of your car on Thursday 29 May this year. These tablets have been analysed at the Government Laboratories and found to be ecstasy. You are not obliged to answer my questions or say anything unless you wish to do so but whatever you do say will be recorded and may later be used in evidence. Do you understand that?”
After the appellant replied, “Yes”, his solicitor said, “My client does not wish to make a statement”. The Constable then asked the appellant, “Are you prepared to be interviewed in relation to this matter?” and the appellant replied, “No”. The appellant was then asked, “Do you wish to make a handwritten statement in relation to this matter?” and he again replied, “No”. There was no dispute that this conversation occurred and the appellant signed a notation of it in the Constable’s notebook. Constable Colreavy did not give evidence on the voir dire.
The submissions made by defence counsel to the trial judge both before and after the voir dire make it clear that the major attack was upon the failure of Constable Zimmerman to record the conversations with the appellant at the vehicle or shortly thereafter. But there was also an argument put that the refusal of the appellant to participate in an interview or to make a statement on 17 July did not necessarily mean that there was a reasonable excuse for the failure to record an adoption of the earlier admissions, notwithstanding the definition of “reasonable excuse” in s 424A.
In support of that submission defence counsel relied upon the decision of this Court in Schiavini (1999) 108 A Crim R 161. In that case the initial statements allegedly made by the appellant were not electronically recorded. When later the appellant was asked by a police officer, “Do you wish to be interviewed by electronic means, by that I mean audio and visual recording?”, he replied that he did not. The trial judge held that, because the police officer had limited the type of recording on offer to the accused to a video and audio recording and did not give him the alternative of an audio recording alone, there was no reasonable excuse for the failure to record the adoption of the alleged admissions. Although the accused’s statements were held to be inadmissible under s 424A, the trial judge determined to admit them under s 86 of the Evidence Act.
This Court held that the trial judge was in error in allowing the evidence to be admitted under s 86 because the admissibility of the evidence was governed exclusively by s 424A. The Crown then sought to justify the admission of the evidence upon the basis that it was not open to the trial judge to find that there was no reasonable excuse for the failure to make an electronic recording of the adoption of the alleged admissions. Studdert J, with whose judgment the other members of the Court concurred, stated:
[17] The Crown has submitted however that the trial judge was wrong in concluding that s 424A compelled the exclusion of the evidence. It was submitted that to construe what the police officer said to the appellant, namely "Do you wish to be interviewed by electronic means, by that I mean audio and visual recording" as meaning only a combined audio and visual recording, was artificial and that the response could reasonably have been taken to amount to a refusal to be interviewed by either means. Having regard to the object intended to be served by s 424A, prudence requires that any interviewing officer explain to a person being interviewed in relation to an indictable offence the alternative forms of "tape recording" available. It is conceivable that a person being interviewed may be prepared to be interviewed by way of audio recording but not by way of video recording. However even assuming the correctness of the Crown submission it would not follow that s 424A(2) was satisfied in the circumstances of this case.
Studdert J concluded that the section was not satisfied because the police conducted a further interview with the appellant that was electronically recorded but during which the interviewing police officer did not put to the appellant the admissions allegedly made by him earlier. Studdert J held that the police officer should have put the earlier admissions to the appellant even though that interview related to only one of the charges then before the court. After referring to the purpose of s 424A and the legislative policy behind the section as declared in Horton, Studdert J stated:
[21] The strict requirements of s 424A(2) reflect the legislative purpose as recognised in Horton. The sub-section requires that there be a tape recording which satisfies either sub-s (2)(a) or (2)(b). Otherwise evidence of an admission is not admissible unless the prosecution establishes "that there was a reasonable excuse as to why the tape recordings referred to in paragraphs (a) and (b) could not be made". The use of the word "could" introduces a concept of impracticability in order to excuse the lack of a tape recording. (His Honour’s emphasis).
Later in his judgment, when determining that the evidence was not admissible, Studdert J stated:
“[24] In my opinion, having regard to the evidence concerning the later electronically recorded evidence, the prosecution here failed to establish that there was a reasonable excuse as to why it was not possible for the type of recording contemplated in s 424A(2)(b) to have been made in June 1998. This being so, the strict requirements for admissibility under s 424A(2) were not satisfied and it follows that the evidence here challenged was wrongly admitted.”
In my opinion, so far as is presently relevant, Schiavini is a decision that, on the facts and circumstances of the matter then before the Court, the Crown had not satisfied the requirements of s 424A. The decision does not determine how the trial judge should have found the facts in the present matter. There is scope for minds legitimately to differ as to whether a reasonable excuse has been made out in a particular factual context. It is not for this Court to circumscribe the factual findings available to the trial courts. Provided that those findings are open on the evidence and are made consistently with the purpose of the section and with regard to the mischief that Parliament sought to address, this Court should not interfere with what is essentially the function of the trial judge.
On the appeal, it was submitted that there was no reasonable excuse in the refusal of the appellant to participate in an interview with Constable Colreavy because the appellant should have been informed by the police officer that it was alleged that he had admitted to ownership of the tablets in his conversation with Constable Zimmerman. It was argued that, if this had been done, the appellant could have made an informed decision whether or not to participate in an interview. It was submitted that for a court to find otherwise would undermine the legislative purpose behind the provision and permit unscrupulous police officers to manufacture an admission subsequent to the refusal to be interviewed.
In my view the trial judge was entitled to find that the Crown had made out a reasonable excuse in a situation where the appellant declined to be interviewed at all in relation to the matter in respect of which earlier admissions had allegedly been made. In the present case, it was significant that the appellant was accompanied by a solicitor and that immediately after the constable gave the caution the solicitor indicated that his client would not make a statement. It was open to the trial judge to find that it was reasonable for the police officer in that situation simply to accept the appellant’s refusal to be interviewed or make a statement “in relation to the matter”. It may have been prudent for the police officer to indicate to the appellant that it was being alleged that he had made admissions to Constable Zimmerman. It may also have been prudent for the solicitor accompanying the appellant to have inquired of the police officer what was being alleged before giving advice to the appellant not to make any statement or participate in an interview. Prudence by a police officer in what is said and done at the time of the request to the accused to be interviewed may ensure that the evidence is admitted despite the differing views of judicial officers as to what is, or is not, reasonable in any given situation. But a lack of prudence does not equate with a lack of reasonableness.
This is not to suggest that a trial judge has free rein in determining what is or is not a reasonable excuse under the section. The purpose for which the section was enacted is obviously important in determining that question. But in my opinion this Court should avoid declaring that any particular set of facts will, or will not, result in a finding of a reasonable excuse. It is not for the Court to take over the role of the legislature. Unless a particular finding is not reasonably open on the evidence, having regard to the terms of the section and the policy to which it gives effect, then there is no basis for this Court to substitute its finding for that of the trial judge.
On the hearing of the appeal and when faced with the difficulty of persuading this Court to overturn a finding of fact, Senior Counsel for the appellant sought to attack the trial judge’s finding on the basis that his Honour had failed to give sufficient reasons for it. As I have already indicated, his Honour delivered short reasons immediately on completion of the voir dire and about a week later, before the trial commenced, gave more detailed reasons. The criticism made of the trial judge’s reasons is that his Honour did not specifically address the argument, which it was said was put to him and as was put to this Court: that, if a reasonable excuse were found on these facts, it would leave it open for police to manufacture admissions after the suspect had refused to be interviewed.
It does not appear from the transcript that this argument was ever put to the trial judge nor was reliance placed on the failure to inform the appellant that he was alleged to have made admissions to Constable Zimmerman. At the outset of the voir dire hearing, defence counsel was outlining what would be the issues raised before his Honour and referred the trial judge to Schiavini. Although counsel made a comment that the appellant, when he attended at the police station, had never been told that he was alleged to have made admissions, that matter appears to have been referred to only in passing both before and after the voir dire and not as a ground for rejecting the admissions. The major complaints raised with the trial judge were that Constable Zimmerman had failed to record the admissions initially and that Constable Colreavy had not given the appellant the opportunity to be recorded on video or audio tape. During the course of the discussion, defence counsel said to the trial judge:
If my friend is relying on Colreavy’s evidence to prove reasonable excuse as she must do under the section she fails to do so because there is nothing in Colreavy’s evidence even suggesting that the accused can involve himself with a tape recorder or an ERISP interview therefore he’s never given--
He was never asked. He was asked would he prefer to be interviewed but he was never asked whether he’d be interviewed on an ERISP….
Defence counsel submitted that Schiavini required that the appellant be specifically asked if he wished to be interviewed by the ERISP procedure, and, as the appellant had not been given that opportunity, there was no reasonable excuse for the failure to make such a recording.
As I have already noted Constable Colreavy was not called on the voir dire. Before the voir dire commenced there was some discussion as to what witnesses would be required by the defence. At one stage defence counsel stated:
The reason I asked that Colreavy be called is because we would say that the procedure adopted by Colreavy in the manner in which he undertook the interview with my client on the subsequent date is consistent with protocol and the proper procedure to be adopted and if my friend concedes that then his evidence already being before you can be contrasted with the evidence already before your Honour through Constable Zimmerman and further evidence in cross-examination so to that extent I do not require Colreavy to be called, providing my friend concedes that the procedure adopted by that particular police officer is the proper one.
Later counsel confirmed with the trial judge that he had no complaint with the way Constable Colreavy treated his client, other than that he was not offered an ERISP recorded interview.
After his Honour delivered his decision on the admissibility of the admissions and gave his initial brief reasons, defence counsel raised again the decision in Schiavini on the basis that, what he regarded as, the strict test to be applied to s 424A had not been followed by the trial judge. Counsel’s complaint again was only that the applicant was not offered the opportunity to be interviewed by way of electronic recording.
In my opinion, having regard to the manner in which the matter was argued before his Honour and the issues that he was called upon to determine, there was no defect in his Honour’s reasons given for admitting the evidence of the admissions. Certainly there was no error of law arising from those reasons or their content. The second ground also fails.
Directions in respect of Exhibit 1
One of the factual issues that arose during the trial, was the assertion by Constable Zimmerman that he could see the four occupants of the appellant’s vehicle looking in the direction of the police car as the vehicle made a right hand turn. The officer said that it was this conduct that attracted his interest in the appellant’s vehicle. However, the appellant maintained that the windows of his vehicle were tinted at the time and that the officer would not have been able to see the occupants clearly.
During the cross-examination of Constable Zimmerman, the defence tendered, what purported to be, a guarantee issued to the appellant in respect of the tinting of the windows of his vehicle at a time before he was stopped by the police officers. This document was marked Exhibit 1. It became clear from evidence called in the Crown case, after the tender of the exhibit, that the document was a forgery: it could not have come into existence before May 1997. It is unnecessary to detail the reasons why the document could not have been genuine because it’s falsity was not in dispute by the time the appellant gave evidence about it.
The appellant told the jury that in October of the previous year the document had been sent to him by mail with a note wishing him luck. He said that he did not know who sent the document to him and that he believed it was genuine when he received it. Defence counsel in his address raised with the jury, without any basis to do so, the possibility that the police had produced the document to ensnare the appellant.
The subject of whether or not Constable Zimmerman could see the four persons in the vehicle was of very limited relevance to the real issue before the jury. It was a matter that, initially at least, went only to the credit of the police officer. But, the relevance of Exhibit 1 changed dramatically once it was established that the document was a forgery: it then assumed more relevance to the appellant’s credit than to that of the police officers. It was clearly open to the jury to find that the appellant had been involved in the forgery of Exhibit 1 or that he had lied in relation to his account of how he came to receive it.
The complaint made under this ground of appeal is that the trial judge should have given either a direction in accordance with Edwards v The Queen (1993) 178 CLR 193 or a warning such was suggested in Zoneff v The Queen (2000) 200 CLR 234. Edwards was concerned with the directions to be given where the Crown relies upon lies told by the accused as evidence of a consciousness of guilt. Zoneff was concerned with a warning necessary to ensure that the jury did not embark upon a prohibited line of reasoning that led from the telling of a lie by the accused to a finding of guilt of the offence charged.
The justices in the majority judgment in Zoneff were at pains to point out the unusual factual situation that arose at the trial with which they were concerned. The accused had been unrepresented and, although there was a substantial attack upon his credibility during cross-examination of him, the Crown had never raised the issue of whether the lies told by him could be used by the jury as evidence of a consciousness of guilt. However, the trial judge raised this issue during the summing up and referred to the subject of a consciousness of guilt without giving a direction on that matter in accordance with Edwards.
The majority of the High Court held that a miscarriage of justice had arisen in that case because the relevance of the lies told by the accused was left “largely up in the air” by the trial judge. The majority in their joint judgment stated:
[23] A direction which might have appropriately been given and which would have allayed any concerns which the trial judge may have had, in this unusual case, in which the issues may not have been defined as they might have been had the prosecutor made a speech to the jury, is one in these terms:
"You have heard a lot of questions, which attribute lies to the accused. You will make up your own mind about whether he was telling lies and if he was, whether he was doing so deliberately. It is for you to decide what significance those suggested lies have in relation to the issues in the case but I give you this warning: do not follow a process of reasoning to the effect that just because a person is shown to have told a lie about something, that is evidence of guilt."
[24] A direction in such terms may well be adaptable to other cases in which there is a risk of a misunderstanding about the significance of possible lies even though the prosecution has not suggested that the accused told certain lies because he or she knew the truth would implicate him or her in the commission of the offence.
The warning suggested was necessary in that case because there was a risk that the jury would reason toward the guilt of the accused from the lies told by him even though such a line of reasoning was not relied upon by the Crown and was not available to them. The trial judge raised the issue of a consciousness of guilt arising from the lies told by the accused without any identification of the relevant answers to the questions he raised and without any further explanation, thus inviting the jury to infer that the lies might be indicative of a consciousness of guilt without the prosecution relying upon such an inference and without the jury receiving proper assistance on that matter.
The question that arises in the present case is whether there was a risk that the jury might infer from the fact, if they found it to be the fact, that the appellant had lied about how he came to have possession of Exhibit 1 that he was guilty of the offences for which he stood trial. Although there is no transcript of the Crown’s address, there has been no suggestion that the Crown raised the issue of consciousness of guilt in its address or otherwise. Certainly the trial judge did not raise this issue in the summing up. However, it has been submitted on behalf of the appellant that Exhibit 1 became so significant that the jury had to be warned not to misuse either it or the appellant’s evidence about it.

Before he commenced to sum up to the jury, the trial judge appropriately sought the assistance of counsel as to the directions that should be given to the jury on various issues that had arisen during the trial. The following exchange with defence counsel is recorded (with obvious corrections to the transcript):
HIS HONOUR:……… A direction on lies. What are you seek(ing) there?
McCRUDDEN: Well your Honour there [is] a (R v )Lucas direction which as your Honour is aware it was (ap)proved in Edwards, but in Edwards –
HIS HONOUR: Well what direction do you seek? I mean I don’t know, there’s a direction on lies that a jury are entitled to draw an inference if they come to a conclusion the accused lied, that it shows a consciousness of guilt, I’m sure you’re not getting at that sort of a direction.
McCRUDDEN: Well that’s correct your Honour the –
HIS HONOUR: I mean if the jury in this case - what you’ve said, you’ve said the police have lied they’ve made up their version of event, if the jury are satisfied that’s the situation, that’s the end of the matter isn’t it? And I’ll tell the jury that.
McCRUDDEN: Yes your Honour.
HIS HONOUR: Nothing else arises from it other than that does it?
McCRUDDEN: That’s correct your Honour yes.
HIS HONOUR: It’s as simple as that.
Clearly his Honour perceived that the single issue, which arose from the evidence, was whether the jury was satisfied beyond reasonable doubt that the police officers were reliable in their account of the conversations with the appellant. There was some doubt expressed on the hearing of the appeal as to what it was to which counsel and the trial judge were referring: whether it was what the accused said about Exhibit 1 or the lies allegedly told by the appellant to the police when they found the tablets in the boot. Material filed on the hearing of the appeal, to which I shall refer shortly, seems to confirm that the exchange referred to Exhibit 1. However, it is apparent that experienced defence counsel conceded that his Honour’s analysis of the issues raised in the trial was correct and, in effect, withdrew any request for a direction in accordance with Edwards.
Consequently, throughout the summing up, the trial judge directed the jury, on a number of occasions and in an impeccably fair manner, that the real issue for their determination was whether they were satisfied beyond reasonable doubt of the reliability of the evidence of the police officers. Understandably, there was some reference by his Honour to Exhibit 1 and the competing arguments about it. The Crown had apparently placed significance both on the tendering of the exhibit and the accused’s evidence in respect of it. The trial judge reminded the jury that the Crown’s submission was that they would not believe the appellant’s version of how he came to receive the document, but that defence counsel had submitted that they would accept the appellant’s account. The trial judge said to the jury:
“The Crown says that the material contained on that document could have only been known to the accused, particularly as to the registration number of the car and that material together with the - and specifies the date. Well the date does not even agree the Crown says, with what the accused says. The car was tinted before May, and yet is tendered before you at an early time to establish the car had tinted windows. The Crown says that you will reject the accused’s version as to how he came to get that thing, anonymously through the post, yet tendered it in evidence in these proceedings.”
His Honour then went on to address the submission made by defence counsel that the police may have sent the document to the appellant.
It is apparent that his Honour saw Exhibit 1 as raising an issue only going to the credit of the appellant. Late in the summing up, in what his Honour believed would be the final directions of law, his Honour said, after referring to the addresses of both counsel in respect of the evidence of the police officers:
Well they are the competing submissions, when they are reduced down there has been evidence as to colours of cars, there has been evidence as to tinting of windows. All those matters you may think are peripheral, it is a matter for you, to the main issue that is before you. Those peripheral matters may help you in determining what you make of the main issues. The real issues that arise from these proceedings is which is, are you satisfied beyond reasonable doubt that the conversation that Constable Zimmerman and Grosse said took place on this night, does that conversation have a ring of truth in the context in which it occurred and in which these young constables found themselves. The Crown says it does, the accused says it does not. They have made it all up.”
Unlike the situation in Zoneff, the trial judge never made any reference to the lies being used as establishing the guilt of the accused.
No further direction was sought by counsel on this issue at the end of the summing up and that is, in my view, consistent with a valid tactical decision. There had been no suggestion in the summing up that there was any evidence indicative of the guilt of the appellant other than the challenged evidence of the police officers. Counsel may well have thought that there was nothing to be gained by introducing any suggestion that the evidence relating to Exhibit 1 could go to the guilt of the appellant by asking for a direction similar to that suggested in Zoneff.
I have already indicated that in respect of this ground of appeal an affidavit by trial counsel was filed on behalf of the appellant. This is in accordance with a practice that has developed in relation to applications for leave under rule 4 of the Criminal Appeal Rules in respect of a point not raised at the trial. In R v Hines (1991) 24 NSWLR 737 at 743 Sully J, with whom the other members of the Court agreed, stated:
For my own part, I consider that it should become the fixed practice of this Court that in a case where the person who is to appear for the appellant on the hearing of the appeal did not appear for the appellant at the trial, there should be filed an affidavit which puts before this Court such explanation as it might be desired to advance for the failure to take, at the proper time and in the proper form, at trial an objection upon which it is sought to rely on the hearing of the appeal. I feel very strongly that a failure on the part of this Court to take such a stand will detract seriously from the efficient administration of criminal justice according to law. That efficient administration of criminal justice requires imperatively, — although, no doubt, among other things, — the affording by the legal profession of proper assistance to trial judges. A fundamentally important aspect of that professional duty of assistance is the duty to take at the proper time and in the proper way proper objections to the trial judge's summing-up in a particular case. If, in a particular case, counsel or a solicitor representing an accused person simply overlooked the point at trial, then I can see nothing harsh or unreasonable in expecting that practitioner to own up to the oversight when the point is sought to be raised for the first time on appeal. If the practitioner has some other explanation of substance for the failure to take the point at trial, then, again, I can see nothing untoward in this Court's expecting to be told what the explanation might be. Such an approach applied consistently and sensibly by this Court would, I venture to suggest, instil into the conduct of criminal trials a degree of intellectual discipline, to say nothing of proper professional pride and responsibility, all of which qualities appear to me, if I may say, to be sadly lacking, not, to be sure, in all criminal trials, but certainly in a good many.
Unfortunately Sully J’s hope that such a procedure would encourage counsel to fulfil their duty to assist the trial judge has not been realised to any significant degree, if at all. However, the importance of this type of material has been recognised by other members of this Court, although with some reservations, see R v Leonard (NSWCCA, unreported, 4 August 1993) but cf R v Bryant (NSWCCA, unreported, 27 June 1994).
It has been my experience, limited as it is, that counsel appearing for the appellant in this Court often consider that it is sufficient to justify the grant of leave under rule 4 that an affidavit is placed before the Court from trial counsel to the effect that, as best as counsel can recall, there was no tactical reason for the failure to take the point. Often trial counsel admits that he or she never thought to take the objection, or was unaware that a direction or warning, such as that raised on appeal, was required. Frequently the material simply indicates that counsel can no longer recall why he or she did not seek the direction or take the objection that is the subject of the ground of appeal.
It seems timely to repeat again what Hunt J had to say in R v Abusafiah (1991) 24 NSWLR 531 at 536:
"The requirements of r 4 of the Criminal Appeal Rules do not constitute some mere technicality which may simply be brushed aside. One purpose of the requirement that no misdirection or nondirection may without leave be allowed as a ground of appeal unless objection was taken at the trial is to ensure that the trial judge receives the assistance from counsel to which he or she is entitled in the task of giving appropriate directions to the jury. If a summing-up contains some error which could easily have been cured once the judge's attention had been drawn to it and if counsel for the accused to whose detriment the error fails to comply with his or her duties to draw the judge's attention to that error, any suggestion that such detriment automatically entitles the accused to a new trial does not strike a sympathetic chord in the hearts of those who see the right to a fair trial as operating in favour not only of the accused but also of the Crown which prosecutes on behalf of the whole community. The Criminal Appeal Act 1912 does not exist to enable an accused who has been convicted under one set of issues to have a new trial under a new set of issues which he could and should have raised at the first trial."
It may well be the case that, if the failure to seek a direction or warning was a result of a considered and competent decision made for tactical reasons, it would be virtually impossible for the appellant to obtain leave to rely upon the point because no miscarriage of justice could have occurred. But in my view it should not be taken to be the case that leave will automatically be granted simply because the proffered explanation is that counsel overlooked the point or was unaware of the law on the subject. Nor is it more likely that leave will be granted simply because counsel can no longer indicate why the point was not taken at the trial.
Nor can bald assertions by trial counsel that there was no tactical reason for a failure to take the point always be taken at face value. This is not to suggest that trial counsel would seek to mislead this Court, but counsel cannot be expected, many months after the event, to recall accurately the atmosphere of the trial or the circumstances in which decisions were made during the course of it. Tactical choices are often made on the spur of the moment as the trial takes on a certain complexion, for example, because of a change in the evidence in the Crown case.
Indeed, in light of the experience of this Court over the last ten years, of which the instant case is a good example, a real question arises as to whether the Court should any longer expect an appellant, seeking to overcome the impact of rule 4, to provide an explanation from trial counsel as to why the relevant objection was not taken or the relevant direction not sought. There may be rare occasions when real assistance can be derived from such material in amplification of the transcript. But generally speaking it seems to me to amount to no more than an imposition on trial counsel for little, or no, good purpose.
At the end of the day the question, with which this Court is concerned, is whether the conduct of the trial may have resulted in a miscarriage of justice and that question is not necessarily answered in favour of the appellant simply because of decisions, errors or oversights by counsel falling short of incompetence. Trial counsel has a duty both to the client and the Court to take objections or seek re-directions where appropriate: R v Roberts [2001] NSWCCA 163. Like other aspects of the conduct of defence counsel during the course of the trial, a failure to seek a direction or warning will not necessarily result in a miscarriage of justice, even if counsel was negligent: R v Birks (1990) 19 NSWLR 677 at 685. If leave is required under rule 4, then the applicant has to persuade this court that a miscarriage of justice may have occurred before leave is granted: Tripodina and Morabito (1988) 35 A Crim R 183 at 191; R v Williamson and Morrell (NSWCCA, 11 October 1991). On the other hand, if the point is taken at trial, the Crown will have the onus of persuading this Court that there had been no substantial miscarriage of justice: Clarke (1995) 78 A Crim R 226.
The present appeal is a good example of the way that those acting for appellants often deal with rule 4. At the hearing of the appeal, an affidavit sworn by counsel for the defence at the trial was tendered in relation to his failure to seek any direction on the matter of lies. The affidavit contains the following paragraphs:
“3. I have not had access to the transcript of the trial or my notes of the trial in preparing this affidavit. I am relying on my memory of the trial.
4. In relation to defence exhibit 1, which I recall was a document referring to the appellant’s car windows being tinted, I say that it was my intention to ask the trial judge for a direction on lies and the use the jury could make of that exhibit. If the transcript discloses that I did not make that application, then I say that was an oversight on my part. I have no explanation as to why I did not seek that direction.”
The content of the affidavit discloses the limited value, if any, that could be placed on that document by this Court. For example, it is not made clear just what direction on lies counsel intended to seek. But, as is apparent from the portion of the transcript I have extracted above, trial counsel did ask for a direction on lies in accordance with Edwards, but abandoned that request in light of the fact that the trial judge was not going to suggest to the jury that any lies told by the accused in relation to Exhibit 1 or otherwise could be used by the jury as evidence of his guilt. In all of the circumstances, that may have appeared to counsel at the trial to be a better result than he might have expected at the close of the evidence.
When the Court pointed out the passage in the transcript to counsel for the appellant, he sought leave to file further material on the subject from defence counsel. The Court granted leave as it was intending to reserve its decision. Further material was placed before the Court in the form of answers by counsel to specific questions asked of him by the solicitor for the applicant. It is obvious that counsel has no clear memory of what motivated him to seek a direction on lies and he is apparently doing his best now to recall what happened at the trial, what decisions he made and the reasons for them. From the questions asked of him and the answers given by counsel, the following can be stated: counsel was seeking a direction on lies with respect to Exhibit 1; that direction was in relation to how the jury could use the evidence of lies; counsel cannot recall why he did not seek any further direction in respect of that matter; he does not believe that he was aware of the decision in Zoneff at the time of the trial; he did not make any deliberate decision (which he now recalls) to refrain from seeking a direction on Exhibit 1.
This material does not in my view advance the applicant’s case. Nor does it displace the inference that arises strongly from the transcript, that it was a deliberate decision of counsel to have nothing said about the use which the jury could make of lies told by the applicant in respect of Exhibit 1. Although counsel believes he was unaware of Zoneff, two comments can be made about that assertion. Firstly, defence counsel is very experienced and practices extensively in the criminal law. It is difficult to accept that he would not have been aware of a decision of the High Court delivered in May 2000 some ten months before the trial. Secondly, the decision of the High Court did not lay down any new principle of law or identify any new warning necessary to ensure the fair trial of an accused. This is not to underestimate its importance in raising an awareness of the importance of ensuring that lies are not misused by a jury. But even prior to Zoneff, experienced defence counsel would have been aware that, if requested to do so, a trial judge would be expected to warn a jury that they could not find the accused guilty simply because they disbelieved an alibi raised at the trial: R v Visser (NSWCCA, 29 July 1994); R v Steeden (NSWCCA, 19 August 1994); R v GJH [2001] NSWCCA 128; cf R v Small (NSWCCA, 15 April 1994). Such a situation is analogous to that in the present case.
Counsel for the appellant has relied in support of this ground upon the decision of the Victorian Court of Appeal in Dat Tuan Nguyen (2001) 118 A Crim R 479. It is unnecessary to refer to that case in any great detail because the factual basis upon which that Court was called upon to consider the directions on lies given by the trial judge were so different from the present case. In Nguyen the post-offence conduct by the accused, which included both lies and the suppression of evidence, was critical to the Crown’s case in order to prove that the shooting by the accused was an intentional act of murder. Although the trial judge ruled that the evidence could not be relied upon to show a consciousness of guilt, during its address the Crown asked the jury to infer from his post-offence conduct that the accused had the murderous intention at the time of the shooting of the deceased. Despite the way in which the Crown sought to rely upon the evidence, the trial judge directed the jury that it went only to the accused’s credit. However, the trial judge did tell the jury that they could not reason from those lies to a finding of guilt.
On appeal it was submitted that the directions on lies were inadequate, notwithstanding that trial counsel did not seek any further direction. The Court of Appeal, referring to Zoneff, held that the directions were inadequate in light of the use made by the prosecution of the post-offence evidence in proof of the intention of the accused. It was held that the trial judge had failed to adequately assist the jury in the use to be made of the lies in the context of the issues raised before them and the strong reliance placed upon the evidence by the Crown to prove the guilt of the accused see at [22], [37], [87]-[88]. In particular, it was held that the trial judge should have informed the jury that there might be other explanations to account for the conduct of the accused after the shooting other than that put forward by the Crown.
It seems to me to be necessary to quote only one passage from one of judgment given by the members of the Court of Appeal and I do so because it appears to have as much relevance to trial judges in this State as it did to judges in Victoria. In the course of his judgment Winneke P stated (at 488):
[19] I would have little doubt that in directing the jury as he did -- thereby steering clear of the pejorative term "lies told out of a consciousness of guilt" -- his Honour was intending to give directions favourable to the applicant. It is a practice not uncommonly followed by trial judges in this State. In most cases, particularly those where the alleged lies are claimed to have been told in court, a direction to the jury of the kind given by the judge in this case will be adequate. Lies told by an accused person, whether in or out of court, will generally not be probative of guilt but only go to his or her credit. It is only in those cases where they are capable of being used to demonstrate a realisation or consciousness of guilt of the crime charged that they acquire a probative value. But each case must depend upon its own facts, and a ritual adherence to the practice of telling juries that lies can only be used in assessing credibility may expose the accused to a risk of injustice which the judge's charge is designed to avoid.

In my view Nguyen makes it clear, as does Zoneff, that what direction is necessary will depend upon the issues raised in the particular case, and the purpose to which the use of lies is made, if any, by the Crown. The trial judge must ensure a fair trial of the accused and must give such directions as are necessary to bring about that result. Similarly in R v Galea [2001] NSWCCA 270, the Crown had used the post-offence conduct of the accused as part of its circumstantial case to prove the charge. The trial judge referred to the Crown’s submission to this effect but gave the jury no direction at all in relation to that evidence. This Court held that the summing up was on that basis defective. At the end of the day much will depend upon the significance given to the evidence of the lies by the trial judge during the summing up as reflecting the emphasis placed upon them in the trial; see R v Dhanhoa [2001] NSWCCA 293.
The situation in the present case is similar to that which was considered by the High Court in Osland v The Queen (1998) 197 CLR 316. In that case the appellant had carried out post-offence deceptive conduct to give the impression that the deceased, her husband, had disappeared when she knew that he was dead. The Crown did not rely upon that evidence as giving rise to a consciousness of guilt and, therefore, the trial judge did not indicate to the jury that they might use her conduct as evidence of her guilt nor did he gave an Edwards direction. Gaudron and Gummow JJ said about this matter:
[43] Although the jury was not instructed that Mrs Osland's lies might be evidence of her consciousness of guilt, there was a real risk that it might reason that, because she lied about her husband's disappearance, she must have known he had been the victim of premeditated murder. Indeed, the prosecution suggested as much, inviting the jury to find that her conduct was not that "of a person who had killed somebody with lawful justification or excuse."
[44] Where, as here, there is a risk that a jury might treat lies as evidence of guilt, the preferable course is for the trial judge to ascertain precisely what use the prosecution contends may be made of the evidence in question. And if the evidence is to be left to the jury as evidence of guilt, it should be instructed as required by Edwards v The Queen. If not, it should be instructed that the evidence is relevant only to the credit of the accused. Only by adopting that course can a trial judge guard against "a perceptible risk of injustice".
[45] Although it is not necessary to express a view on the matter, it is difficult, if not impossible, to conclude that the trial judge's failure to follow the course indicated above could have resulted in a miscarriage of justice in this case. Counsel for Mrs Osland did not seek any clarification as to the use that might be made of the evidence of Mrs Osland's conduct. And she sought no direction with respect to it. It is difficult to resist the inference that she took the view that there was nothing to be gained by raising the matter.
In the present case, the trial judge could well have given a warning such as that which is now sought and would probably have been expected to have done so had one been requested. But I am not persuaded that the failure to give such a warning in the circumstances of this case and in the absence of a request from counsel has resulted in the possibility of a miscarriage of justice. Trial counsel evidently was content that the summing up appropriately and fairly placed the real issue before the jury. Anything more said by his Honour about Exhibit 1 or the appellant’s evidence in relation to it may well have distracted the jury from a proper consideration of that issue to the disadvantage of the appellant. I am of the opinion that leave under rule 4 should be refused.
I propose that the appeal be dismissed.
CARRUTHERS AJ: I agree with Howie J. In particular I endorse the views of his Honour expressed in paragraph 62 in relation to the provision to this Court of affidavits by trial counsel.

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LAST UPDATED: 15/11/2001

[2001] NSWCCA 427

15 November 2001