R v. Omar

[2007] QCA 434

SUPREME COURT OF QUEENSLAND

CITATION:

R v Omar [2007] QCA 434

PARTIES:

R
v
OMAR, Maliha
(appellant)

FILE NO/S:

CA No 294 of 2007
DC No 2889 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

Orders delivered ex tempore 29 November 2007
Reasons delivered 7 December 2007

DELIVERED AT:

Brisbane

HEARING DATE:

29 November 2007

JUDGES:

Williams, Keane and Holmes JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – WHERE GROUNDS FOR INTERFERENCE WITH VERDICT – PARTICULAR CASES – WHERE APPEAL ALLOWED – where the appellant was convicted of one count of arson and one count of attempted fraud with a circumstance of aggravation – where the appellant was sentenced to two years imprisonment, with a parole release date fixed after six months – whether the verdict was unreasonable – whether the jury was misdirected as to the use which could be made of lies – whether a direction in accordance with Edwards v The Queen (1993) 178 CLR 193 should have been given

Criminal Code Act 1899 (Qld), s 8

Edwards v The Queen (1993) 178 CLR 193, applied
Zoneff  v The Queen (2000) 200 CLR 234, considered

COUNSEL:

S J Hamlyn-Harris for the appellant
D L Meredith for the respondent

SOLICITORS:

Howden Saggers Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

1. WILLIAMS JA:  I have had the advantage of reading the reasons for judgment of Holmes JA and I agree with what she has said.  I add some brief additional observations. 

1. The prosecution did not allege that the appellant burnt the car. In the summing up the trial judge directed the jury that the prosecution case was either that the appellant was a party to the offence because she aided the person who actually burnt the car or alternatively the burning of the car was done as part of a common purpose, namely, to defraud the insurer. Undoubtedly based on s 8 of the Criminal Code the trial judge directed the jury:

"What the Crown says to you here is that there was a plan by Mrs Omar and others and that the arson was a probable consequence of the prosecution of the unlawful purpose and the unlawful purpose was to burn the car and make a claim on AAMI."

1. It seems to me that if the first and third lies identified by Holmes JA in her reasons were relevant at all, they were relevant as demonstrating the existence of some plan, involving others, to burn the vehicle.  If the first lie was relevant at all, it was because it tended to deflect attention away from persons who could well have been parties to the plan.  That is also the case with the third lie.

1. At trial, though it is not entirely clear what lies the prosecutor was referring to, she submitted that the lies evidenced a consciousness of guilt.  However, the trial judge ruled against that.  Prior to addresses of counsel there was a clear ruling by the trial judge that the lies were not capable of demonstrating a consciousness of guilt and went to credit only. 

1. However, as Holmes JA has pointed out the trial judge listed the appellant's lies, albeit going to credit, as one of the circumstances the jury could take into account in determining whether or not a circumstantial case of guilt had been made out. 

1. It is true that later in the summing up the judge told the jury that the lies went only to credit but that passage was followed by the statement: "It is for you to decide what significance those suggested lies have in relation to the issues in the case".  Having told the jury that the lies were part of the circumstantial case the jury could well have considered they pointed to the appellant being party to a plan to burn the car; as I have noted above that is essentially the only relevance the first and third lies could have had.

1. There was no direction in accordance with Edwards v The Queen (1993) 178 CLR 193 and that was required once it was appreciated that the lies in question were relevant to consciousness of guilt.

1. The summing up was confusing and it may well be that the jury relied on the lies as part of the circumstantial case because they evidenced a consciousness of guilt, and there was no Edwards direction.

1. Because of that I agree with the reasoning of Holmes JA.

1. KEANE JA:  I agree with the reasons of Holmes JA.

1. HOLMES JA:  The appellant, Mrs Omar, was convicted of one count of arson and one count of attempted fraud with a circumstance of aggravation, arising out of the burning of a motor vehicle and an attempt to claim insurance on it.  She appealed against conviction on the grounds that the verdict was unreasonable and that the jury was misdirected as to the use which could be made of lies. She also sought leave to appeal against the sentence imposed, of two years imprisonment, with a parole release date fixed after six months, as manifestly excessive. On 29 November 2007, this Court allowed the appeal against conviction and ordered a retrial. What follows are reasons for those orders.

The evidence

1. In 2004 Mrs Omar lived with her husband and four children at Carina Heights. Mr Omar had bought the Mazda MPV van which was the subject of the charges in 2001. He had borrowed the purchase price of $53,000 from a finance company. The Omars needed a vehicle of that size and type because two of their children were disabled.  Mr Omar had developed a psychiatric condition, which, combined with fainting fits, prevented him from working or driving. The couple were reliant on pensions and income from some part-time work Mrs Omar performed for a wheelchair-bound man, Mr Craig, who lived in Carindale.

1. On 7 May 2004, at about 9.30 pm, Mrs Omar drove to Mr Craig’s house in the Mazda van in order to do some tidying and help him as he retired for the night. (Her husband, Mrs Omar said in later interviews, was with his brother, Sharif Omar, that night; because of his psychiatric problems she made a point of not leaving him alone with the children and he often stayed with other family members for days at a time.)  Mr Craig saw the headlights as the van pulled up in the driveway. At about 10.25 pm Mrs Omar left the house, but returned almost immediately, in a state of apparent distress and shock, and told Mr Craig that her van had been stolen. 

1. In interviews with investigators acting on behalf of the car’s insurer and police officers, Mrs Omar described going out to where she had left the van and seeing glass around.  (Mr Craig said that the next day he had found a small quantity of broken glass and a rubber strip in the driveway.)  She telephoned the police (a call was logged at 10.27 pm) and was told a police officer would come to her house later that night to take her complaint.  She made her way home, where a police officer duly arrived to speak to her, shortly after 11 pm.

1. The missing vehicle was found the following day on the side of a dead-end road at Park Ridge, burnt out.  At the date it was destroyed, it was insured for $38,500 and the amount owing to the finance company was $16,684. Mrs Omar said she had locked the van when she arrived at Mr Craig’s house.  There were two keys for it, one which she used that night and another which was hidden with her jewellery in a drawer.  She checked when she arrived home and found that the secreted key was still there.  No-one else knew of the spare, and she had not had any duplicate made.

1. But a number of features suggested that the van had been driven away using one of the two sets of keys provided by the manufacturer.  The glass found in Mr Craig’s driveway was consistent with having come from the Mazda’s back passenger side window, but it would not have been possible, stretching an arm through that window, to reach any of the door locks so as to release the central locking. An RACQ technical officer and various Mazda employees gave evidence to the effect that Mazda MPV vehicles had immobilisers fitted. Without a signal from an electronic chip in the key, the ignition and fuel injection systems in such a vehicle would not work. In addition, if a coded key were not used, the gears could not be released; the vehicle would remain locked in “Park”. It would be difficult but not impossible to tow with the front wheels locked.

1. In order to obtain an additional key for a Mazda MPV, a Mazda dealer had to request a code word, which would enable a duplicate key to be programmed in a Mazda workshop.  No such code word had been issued in the case of this vehicle.  That evidence was qualified to this effect: a customer who presented two coded keys could buy a blank key from a Mazda dealership and get it coded without requiring the codeword.  The Mazda dealership from which the vehicle been bought had no record of any request for duplicate keys, and a search of the Mazda database had found no invoice from any other dealership for the sale of a spare key. 

1. A locksmith who gave evidence said that he could copy the key for the Mazda MPV in blank form, so as to open the steering wheel lock, but he confirmed that without the security code implanted in chip form, the engine could not be started.  He had examined the burnt out vehicle.  The door handle of the driver’s side door had been destroyed in the fire, but there were no marks on the panel around the door lock or the handle indicating attempts to break in to it.  The door lock cylinder was undamaged, without any sign of having been forced or manipulated.  The position was similar with the door lock on the passenger side.  The rear doors locked from the inside and had only an external handle. There was no sign of forcing or manipulation of either.  There was no damage to the steering column to suggest that it had been forced from its locked position, and there was no sign of any force used on the ignition cylinder.  The vehicle’s computer system, which held the security codes for the vehicle, had not been tampered with or removed. 

1. The insurer of the vehicle received a claim form signed by the appellant’s husband, dated 18 May 2004.  It was accompanied by a statement from him in which he said that he was with his brother Sharif Omar on the night in question, and another from Mrs Omar in which she set out the sequence of events, including that the following day she had told her husband of the theft. There was some evidence about the Omars’ financial situation.  The registration fee, insurance premium and loan instalment for the vehicle, amounting to almost $2,000, were due at the end of May.  The Omars did not have sufficient funds in any account to meet them, and Mrs Omar’s credit card debt was close to the limit. 

1. There was also evidence in the form of telephone records before the court. They showed that two unanswered calls were made to the appellant’s home number at 11.27 pm on the night of 7 May 2004 from a pay phone at Kingston, about nine kilometres from where the burnt out vehicle was found, on the road north back into Brisbane.  Three minutes later, at 11.30 pm, Mrs Omar made a long call to the insurance company which insured the vehicle. The records for Mrs Omar’s home number showed that she had not telephoned her brother-in-law’s house that night or the following day.

1. The Crown also adduced evidence of what were said to be lies told by the appellant.  First, in her emergency call to the police, she was recorded as saying that her husband was with his family, although he would be at her house the next day; she did not know his address exactly because they had been separated for three years. Second, she had told one of the investigators that she had not telephoned anybody after speaking to the police officer on the night of 7 May, but in fact she had telephoned the insurance company.

1. Third, and more significantly, Mrs Omar had given different accounts of whether, when and how she had told her husband of the vehicle’s loss. Over four interviews between June and November 2004, she said initially, that she had spoken to him and her brother-in-law by telephone the next day; later (when the lack of any evidence of such a call was raised), that she spoke to him in person when he came to her house with his brother; and ultimately, that she had not told him because she did not want to upset him. (Oddly, hearsay evidence, in the form of police questions alleging that Sharif Omar had denied any call from Mrs Omar or visit to her house, was not excluded.)  Mrs Omar explained the differences as confusion.

The “unreasonable verdict” ground

1. The first ground of appeal was that a reasonable jury could not have been satisfied beyond a reasonable doubt of the appellant’s guilt, because the Crown was unable to exclude as a reasonable possibility that someone could have obtained another key by presenting both of the original keys to a Mazda dealer and requesting a duplicate.  The Crown had submitted that the only rational inference was that there were only two keys to the vehicle and that the appellant had supplied them to someone who took the car.  It was necessary, counsel for the appellant argued, for the Crown to establish beyond reasonable doubt that no other keys existed, because it was an indispensable link in the chain of proof.

1. However, given the evidence that Mazda had no record of issuing a third key and the appellant’s own evidence that the two keys at all times remained with her, one hidden, it seems to me that it was open to the jury to make the finding, beyond reasonable doubt, that no other key existed.  The case was a circumstantial one, but the jury could reasonably reach the view that there was only one rational inference: that one of the two keys had been used to drive the van and that it must have come from the appellant.  This ground of appeal was not made out.

The directions on lies

1. The second ground of appeal, however, had substance.  The Crown prosecutor indicated in the course of discussions before the summing up that she proposed to rely on the lies identified earlier. The learned judge indicated that in her view, those lies went only to credit.  However, in identifying the circumstances on which the Crown relied, her Honour incorporated the alleged lies:

“If I could go through then just in broad terms the circumstantial evidence that the Crown relies on. I’m going to do it in more detail in the third part of this summing up but at this stage, just so that you can get an overall picture, I’m going to adopt the same approach that Ms Fredericks did, which is to outline the different types of circumstantial evidence on which the Crown relies and I do them in no particular order. It’s a matter for you to decide whether you think they’re important, not important.”
[Her Honour commenced with the evidence about the vehicle’s immobiliser, the need for a coded key to operate the vehicle and the evidence that no duplicate key had been issued.]

She continued:

“And the difficulties with towing. The telephone calls. As I say, at this stage I’m not giving you the detail. I’m just giving you the broad headings. There is the financial situation of the accused. There is the scene of the crime, to use Ms Fredericks’ term, and in particular, the positioning of the vehicle. There is the evidence of the accused about her possession of the keys. And as going to her credit there are her lies and I will detail those for you in a moment. They’re the broad categories. I will go into greater detail but the Crown says, if you consider that evidence, then you will reach the view that the only rational inference from the circumstances is that she was a party to the arson.”

1. Subsequently, the trial judge did deal with the circumstances in more detail. Describing the three sets of lies as “the lies of the accused on which the Crown relies”, she emphasised that they were relevant to the appellant’s credit. She gave a direction of the kind advocated in Zoneff;[1] telling the jury members that they should make up their own minds about whether they were lies, whether they were deliberate and what significance they had to the issues in the case.  Her Honour cautioned, as Zoneff required, against reasoning to the effect that the lie was indicative of guilt.

   [1]Zoneff  v The Queen (2000) 200 CLR 234.

1. There was, it should be said, some scope for argument about whether Mrs Omar’s statements were deliberate untruths, given some language difficulties and the potential for her being at cross-purposes with her questioners. What follows assumes for the purposes of the argument that the jury found that they were indeed lies. The tenor of the questioning which elicited the answers relied on as lies was that they were told in order to disguise what had really happened on the night the van was taken and the following day. That was not an unreasonable approach: the lies concerning Mrs Omar’s husband, at least, might well be regarded as an attempt to divert attention away from another party to the offence and an anxiety to conceal the fact that she had not told him about the vehicle’s disappearance because he was involved in it. (The significance of the alleged lie about not ringing anyone when she had in fact telephoned the insurance company is less obvious, but the case for its being a lie was much weaker in any event.) If, on the other hand, Mrs Omar’s dissembling about her knowledge of her husband’s whereabouts and when she had telephoned him was entirely unrelated to any involvement on her part in the vehicle’s removal, it is difficult to see what real consequence it could have for her credit. 

1. There was a strong likelihood that the jury would regard the lies as probative, as told by Mrs Omar to conceal her part and her husband’s. The risk that they would reason along those lines became an inevitability when the trial judge effectively invited them to do so, by suggesting that the lies were capable of being regarded as contributing to an inference of guilt. In all the circumstances, an Edwards[2] direction was essential.  The misdirection was a fundamental one in a finely balanced case, requiring that the verdict be set aside and a re-trial ordered.

   [2]Edwards v The Queen (1993) 178 CLR 193.