R v Slewa

[2003] NSWCCA 50

CITATION:	R v Slewa [2003] NSWCCA 50
HEARING DATE(S):	07/02/2003
JUDGMENT DATE:	4 March 2003
JUDGMENT OF:	Santow JA at 1; Simpson J at 72; Smart AJ at 73
DECISION:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW - conviction appeal - sexual assault - whether jury verdict unreasonable and not supported by evidence - whether jury should have held a reasonable doubt as to guilt - whether trial miscarried because there was not a separate direction on lies - where counsel for the offender at trial had not sought such a direction - whether absence of an express direction on need for a jury to be satisfied of guilt beyond reasonable doubt of an essential factual element resulted in a miscarriage of justice
LEGISLATION CITED:	Criminal Appeal Rules rule 4
CASES CITED:	Barca v the Queen (1975) 133 CLR 82 Edwards v The Queen (1993) 178 CLR 193 R v Galea and Yeo [2001] NSWCCA 270 R v GJH (2001) 122 A Crim R 361 Hodge's case (1838) 168 All ER 503 M v the Queen (1994) 181 CLR 487 MFA v the Queen [2002] HCA 53) Shepherd v the Queen (1990) 170 CLR 573 Zoneff v The Queen (2000) 200 CLR 234
PARTIES :	Disho Slewa (Appellant) Regina (Respondent)
FILE NUMBER(S):	CCA 60498/02
COUNSEL:	H K Dhanji (Appellant) D M Howard (Respondent)
SOLICITORS:	D J Humphreys (Appellant) S E O'Connor (Respondent)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	01/21/3201
LOWER COURT JUDICIAL OFFICER :	Judge Coorey

- 23 -

CCA 60498/02
DC 01/21/3201

SANTOW JA
SIMPSON J
SMART AJ

4 MARCH 2003

REGINA v Disho SLEWA

Judgment

1 SANTOW JA:

INTRODUCTION AND OVERVIEW
This is a conviction appeal in a rape case with assault. The facts are summarised by way of overview below. Further elaboration, as relevant to the issues, then follows.

2 On Friday 17 November 2000 at around 10pm, the Complainant ME, then 17 years old, left her boyfriend’s house in Smithfield following a quarrel with him. She commenced walking to her father’s home some two hours away. As she was walking a red two door hatchback car approached and the driver offered her a lift. She accepted. The driver grabbed her arm when she got into the car. He touched her leg, she brushed him off. He then drove her to a deserted street. She asked to go and he locked the car. The offender then assaulted her and had sexual intercourse without her consent.

3 Eventually she freed herself and she memorised the numberplate of the vehicle as KWA-470. She hid in a front yard of a home and after she was calmed down the occupier of the home drove her to her boyfriend’s. She showered and then told him what had happened. The next day she told her father and then she reported the incident to police.

4 The police searched the numberplate and found no car with that numberplate matching her description. A search on an alternate numberplate of WKA-470 revealed a red Ford Festiva registered to a smash repairer in Wetherill Park. At the time of the incident, the Accused had possession of the car while his car was repaired.

5 The Accused was arrested. He initially told police that he had been at the RSL. On his way home from the police interview he claimed that he realised he had told them his whereabouts on Thursday and not Friday the day of the events in question. He then sought to correct his statement to say that he had been with his family that evening. The evidence of his neighbours and wife supported this evidence.

6 The Accused was found guilty by a jury on the three counts, noted below. The Accused was subsequently sentenced. The longest sentence, described by the trial judge as the head sentence, was for a term of imprisonment for three years with a non-parole period of one year.

7 The appeal is against conviction only.

8 The charges were by way of three counts as follows:

Count 1: detain for advantage (s90A Crimes Act – since repealed)

Count 2: at time of assault committed an act of indecency (s61L, Crimes Act )

Count 3: sexual intercourse without consent knowing she was not consenting, in circumstances of aggravation in that at the time of the said sexual intercourse, the Accused maliciously inflicted actual bodily harm. (s61J Crimes Act )

9 The grounds of appeal were essentially as follows:

(i) A miscarriage of justice occurred as a result of the failure of the trial judge to direct the jury in relation to lies allegedly told by the Accused;

(ii) A miscarriage of justice occurred as a result of the failure of the trial judge to direct the jury that they could not convict the Appellant unless they were satisfied beyond reasonable doubt that the car in the possession of the Appellant was the car described by the Complainant;

(iii) The verdict of the jury is unreasonable and cannot be supported having regard to the evidence.

10 Initially two possibilities had been raised by the defence. The first, that no sexual assault occurred, was abandoned. The second, that the sexual assailant was not the Appellant, was maintained.

ELABORATION OF EVIDENCE AT TRIAL

11 Before dealing with the grounds of appeal, it is convenient to elaborate on the evidence at trial. This is set out below, drawn largely from the Appellant’s submissions, they being on this aspect relatively uncontroversial as a narration of the evidence given and of the respective cases.

12 The Crown case was that the Complainant, then seventeen years old, having had a fight with her boyfriend, ran off into the night holding on, initially, to her boyfriend’s van from which she was forcibly pulled off. She intended to walk to her father’s house, some two hours walk away. She said that a car on the opposite side of the street pulled over and offered her a lift, which she accepted. She described the car as a red Ford Festiva (T, 3.27). The complaint said that, at some point on the journey, the driver turned in a direction away from her destination. The car was stopped in a cul-de-sac, Sweethaven Road, where she was sexually assaulted. (The Accused in cross-examination denied knowing in November 2000 that Sweethaven Road was a dead-end, although he said in his ERISP he was familiar with the road (T, 178, exh. H, Q.174 ff).) The Complainant said that she was touched around the breasts and the legs (count 2). She said that his finger entered her vagina (count 3). The Complainant managed to escape from the car and run to a nearby house where she was found by the owner and eventually taken home.

13 The Complainant said that after leaving the car she looked at the registration number and kept reciting it to herself. She remembered it being ‘KWA 470’. Her boyfriend, David Tresl said that the Complainant left that evening at about 9:30 pm (T, 27.4). He said that she returned at about 11:30 pm, after which she made a complaint to him, and recited the registration number which he wrote down.

14 The Complainant described other aspects of the vehicle (at T, 22). This correctly included that it was a red, hatchback Ford Festiva. She said it had furry seats (they were in fact smooth). She said, correctly, that it had a white/grey pattern, a dark grey dashboard with white numbers on the speedometer. She said there was nothing in the car such as street directories or keys or money. There was a clock with a LED display with a green background and black numbers. It was an automatic and she described the gear stick. She said the car smelt new.

15 The Complainant described her attacker (at T, 18 and following). She said he was of Mediterranean appearance, bald or shaven head, large build, dark eyebrows, brown, dark eyes, dark, olive complexion. She said he was wearing dark pants and a light coloured short sleeved collared shirt. She said he was clean shaven and wearing after-shave. In cross-examination she said that he could not be described as ‘fair’, although she had previously described him to the police as being fair.

16 The occupier of the house came out and she briefly told him what she said had happened to her. She made a complaint to her boyfriend that night, to her father the next day and to a doctor on 19 November 2000.

17 The Complainant attended the Green Valley Police Station on 18 November and reported the matter to the police. The registration number KWA 470 did not relate to a Ford Festiva. The Complainant was asked to suggest some alternatives. She suggested TWA 470 and WWA 470. None of these numbers were consistent with the attacker’s car. Detective Senior Constable Smith made further checks on the registration number. He tried various combinations. He found that WKA 470 related to a red Ford Festiva. He did not recall (or have a record of) the combinations he tried (T, 142.17) before trying WKA 470. The Accused had possession of a read hatchback Ford Festiva WKA 470 at the relevant time. It had been given to him by the smash repairers to use while his car was being repaired.

18 The Accused was arrested on the night of 20 November 2000. He denied having committed any offence. He agreed to participate in a record of interview. He said at that interview that he had gone out that night intending to go to the Fairfield RSL Club but returned home before 8 pm. The Accused said that he was willing to participate in an identification parade, however no parade was held. Nor was there any photographic identification evidence.

19 The Accused later gave evidence that when he was interviewed by police, he was confused and realised he had got the date wrong on the way home from the police station. He said that he had driven to the RSL Club on the Thursday night, not the Friday (T, 169), then decided not to go, as he had to be at work early the following morning, so he returned home, arriving by 8 pm–8.30 pm. He denied visiting family that night. He then (as to next day, Friday, when the matter of complaint was said to have occurred) gave evidence that he had gone about 6.30 pm, with his mother and daughter, to visit a cousin, Alice Khoshaba. While there he received a call on his mobile from a Benjamin in relation to work the next day (exhibit 1 shows a telephone call made to the Appellant’s mobile from a landline of a Mr Benyanemat 7.04 pm on 17 November 2000, the Friday). He said he left his cousin’s around 8.50-8.55 pm and returned home about 9.30 pm. His evidence then proceeded as follows. Two neighbours were sitting outside on their balcony. He waved hello to them and went into the house. He spent time with his daughter, son and wife until he went to bed an hour or so later. He explained that he had been confused about the dates when he was initially questioned and that he had described in his interview what had taken place on Thursday. The offence allegedly took place on Friday night. The police interviewed him on the following Monday.

20 The Appellant’s evidence was supported by his wife, his mother, the two neighbours and his cousin. His wife said that she had stayed up after her husband had gone to bed and that he had not left the house. The Appellant’s wife also gave evidence that when she collected her husband from the police station he had told her that he had gone to the Club that night and she had corrected him and he realised he had told the police about the wrong night.

21 The Appellant’s cousin recalled the Appellant having received a call on his mobile telephone while at her house. Telephone records established a call from the person Benjamin to the Accused consistent with this.

22 The Appellant’s neighbours gave evidence that they were sitting together on their balcony listening to the races when the Accused drove home about 9.30. They said they could place the time from the race which was about to be on, and from the fact that one of them went inside to get some money to give to the other for a bet and saw what time it was and what movie was on TV. They greeted the Accused and saw him go inside his house. They remained on their balcony till late and did not see the Accused or his car leave the house.

23 The Appellant’s wife, mother neighbours and cousin all claimed that, having had the matter brought to mind very soon after the evening, due to the Appellant’s arrest, they were able to recall what had happened on the Friday evening.

24 The car was examined for fingerprints (presumably of the Complainant), however none were found. Nor was anything else found linking the car to the Complainant including an anklet the Complainant said she had lost at some point that night. It was of course possible this was lost in the course of her fight with her boyfriend, which involved her being pulled off the back of her boyfriend’s vehicle.

25 There was no evidence given as to how many small red cars or red Ford Festivas have New South Wales number plates with similarities to that of the Appellant.

GROUNDS OF APPEAL

26 It is convenient to follow the order in which these grounds of appeal were argued on appeal, taking the third ground first. That ground is that the verdict of the jury is unreasonable and cannot be supported having regard to the evidence.

27 The Appellant’s argument starts with the contention that no relevant advantage was held by the jury in assessing the evidence, citing M v the Queen (1994) 181 CLR 487 at 494 (subsequently followed in MFA v the Queen [2002] HCA 53):

“In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.”

28 The Appellant then acknowledges that there were a number of pieces of circumstantial evidence consistent with the guilt of the Accused. They were, in summary, the similarity of the number plate of the Appellant’s car as observed by the Complainant and the similarity of the colour, make and internal appearance of the car; the consistency between the appearance of the Appellant and the attack; and the fact that the Appellant lived near the location at which the incident took place and (at least in his recorded interview) appeared to be familiar with the location.

29 However, the Appellant relies upon various matters which, while not excluding the Appellant, were said not to assist the Crown case and which, it was submitted, give rise to a doubt which an appellate court should experience. Those matters, said to be surprising, were the absence of any evidence such as fingerprints, hair or the Complainant’s missing anklet that established that the Complainant had been in the car.

30 However, the real gravamen of the Appellant’s attack is the contention that there were matters that were actually inconsistent with the car being that of the Appellant. It was said that the most significant of these was the Complainant’s description of the seats as “furry”. It was accepted that the seats were not furry (Summing Up 24.5).

31 Then it was said that the Complainant’s evidence in relation to the colour of the background of the speedometer (“a dark greyish colour”) was inconsistent with the actual appearance, which was blue. I would however say that the difference between the actual blue background and the observed grey could hardly be significant given the relative darkness at the time the attack occurred in which blue could merge into grey.

32 However, her description in evidence in fact was less precise, namely “furry type of seating that most cars have”; T 22-5. The Respondent submits that the jury was entitled to accept this description as a consistent, if somewhat imprecise, description of the seats in the Appellant’s vehicle. I need go no further than say that it was open to the jury to treat this discrepancy in description as not of such significance as to outweigh an otherwise essentially accurate description of the car.

33 Other additional claimed inconsistencies relied upon by the Appellant between the car used by the attacker as described and that of the Appellant with the fact that there was dirt clearly visible on the floor mats of the Appellant’s car; the car was eight month’s old and not described by the police as having a “new” smell; and there was a baby seat in the rear of the Appellant’s car which was not described by the Complainant. Again I do not think these of any significance.

34 The Appellant then relies on the observation in Hodge’s case (1838) 168 All ER 503, in the context of a circumstantial case, that

“a single circumstance which is inconsistent with [a conclusion of guilt] is of more importance than all of the rest, in as much as it destroys the hypothesis of guilt.”

35 Then it is said that the evidence that was inconsistent with guilt needs to be viewed in the context of other supposed inadequacies in the Crown case. The identification of the car was said to be a critical link in the chain. However, complaint is made that there was no evidence as to how many other red Ford Festivas had similar number plates. There was (it was said) no evidence as to the distribution of number plates to Ford dealerships or Motor Registries in the area.

36 Finally, there was the matter of the licence description with the reversal of the K and the W; it is convenient to deal with that later.

37 Essentially then, the Appellant’s attack did not really take issue with the Claimant’s description of her assailant which, as I elaborate below, was indeed a reasonably good detailed description. Nor did it attempt to grapple with other persuasive elements of the Crown case. Rather the attack centred wholly upon the identification of the car, said to be a critical link in the chain, including both its description and identification by way of number plate evidence earlier referred to.

38 The complaint was made that there was no evidence as to how many other red Ford Festivas had similar number plates and that there was no evidence as to the distribution of the number plates to Ford dealerships or Motor Registries in the area. It was contended that it was not necessary for the Appellant to call evidence of such matters; the onus should be on the Crown to exclude any reasonable hypothesis (Barca v the Queen (1975) 133 CLR 82 at 104). It was said that the jury had no relevant advantage in assessing this part of the evidence.

39 It is convenient to start with the Crown’s response to that attack and then deal with the other matters of description of the car. The Crown’s essential argument was to look at the accumulation of circumstantial evidence supporting the Crown case as precluding room for reasonable doubt. On the question of the licence plate, the Crown emphasises firstly that the Complainant was (rightly) sure of the three numbers “470” which form the numerical sequence on the licence plate of her assailant’s vehicle (T, 102.40). Moreover, she was sure that the third letter of the licence plate of her assailant’s car was “A”, again correctly; see Complainant’s evidence T, 99.45 and following.

40 When it came to the remaining two letters in the licence plate her first description, albeit reversed, correctly included the letters K and W (Complainant’s evidence T, 12.40 and following and also note the evidence given to her father when she complained to him next day at T, 91.1 and following).

41 Thus her evidence was consistent and correct in stating that one of the letters was W (T, 99.45 and following) and she had correctly identified the other letter as K merely reversing them. It was open to the jury to place no weight on that sole discrepancy when in all other respects she had the number right. Moreover the total number of cars (of all makes) that would fit the remaining possible variations of the plate would be only 52 (that is twice the number of letters in the alphabet). There was no essential need for the Crown to provide further evidence relating to such a number plate, as argued by the Appellant.

42 Thus apart from this minor discrepancy in an otherwise accurate description of the number plate, the jury had before it an accurate description from the Complainant of many other details about her assailant’s vehicle, namely (see Complainant’s evidence T, 21.35 and following, evidence of NE T, 89.47 and following; 91.1 and following; and evidence of Constable Gibson T, 107.35, 110.40):

· It was red

· It was a two door hatchback

· It was a Ford Festiva

· It was new

· It was an automatic with a distinct style of gear stick she described

· The seats were white/greyish and had patterns

· It had an LED clock with black numbers on a green background

· The numbers on the dash instruments were white

· The dash in the speedo area was a dark greyish colour actually blue, but of no moment, given the darkness)

43 It will be readily apparent that these descriptions accurately describe the Appellant’s vehicle (see exhibit E photographs of the red Ford Festiva; evidence of Detective Smith T, 137.52 regarding age of the car being nine months and as having done 16,000 kilometres). While true that the Complainant’s description of the car seats as “furry” was wrong, that description as I have said was no more precise than “furry type of seating that most cars have” (T, 22.5). The jury was entitled to accept the description overall of the car as sufficiently close. I do not consider the discrepancies as in any way significant.

44 The fact remains that the Appellant had possession at the relevant time of a red Ford Festiva car with a number plate WKA 470 sufficiently closely matching the comprehensive particulars earlier referred to in the Complainant’s description. There was no conceivable other explanation for the accuracy of that description put in evidence or to the jury as to displace the Complainant’s evidence that this was the car in which these events occurred.

45 Moreover the person in it matched closely the description of the Accused. Thus to this evidence should be added that the Complainant gave a good detailed description of her assailant (see Complainant’s evidence T, 66 and following; evidence of NE T, 91.16 and following; evidence of Constable Gibson T, 107.14 and following). She said:

· He had a bald head (“I didn’t see no hair, like it was shaven head” – T, 18.40ff);

· His build looked fairly big;

· He had dark eyebrows;

· He appeared to be of Mediterranean appearance;

· His complexion was “dark, olive, dark” (T, 20.30);

· His eyes were brown and dark;

· He was aged “Thirties, forties” (T, 20.40);

· He was dressed in dark pants and a light coloured, collared short sleeved shirt;

· He had large hands (T, 37.37)

46 She gave her father the following day (and before she went to the police station) this description of the man (T, 91.18):

“She described the man to me as being between the height of 175 to 180 cm in height, shaved head, muscly solid build…he was wearing apparently dark coloured trousers with a light coloured shirt. I asked her if she could recall a cologne. She said yes she does recall a cologne…she said he was approximately 30 years of age…She said he was a little on the dark side and I asked her what background was he…She said he was either Assyrian or middle eastern background”.

That accorded with the fact that the Appellant is an Assyrian from Iraq, has an olive complexion that could fairly be described as ‘Mediterranean’, was 30 years old at the time, was 169 cm tall, was substantially (but not entirely) bald with shaven head, had thick black eyebrows and dark brown/black eyes, a stocky build, large hands, had shaved on the night in question and had used after shave. (See ERISP Ex H - Q.& A 97 ff, Q&A 178 and also the Appellant’s appearance on the video of the ERISP). He told police he had worn jeans and a white and black long sleeve T shirt on the night (Q&A 60 ff). The jury would have had ample opportunity to observe the Appellant during the trial and his appearance on the ERISP video.

47 Then there are other matters which told against the Appellant and supported the Complainant’s account, namely:

(a) That the Complainant was attacked in a quiet dead end street called Sweethaven Road, Greenfield Park;

(b) That the Appellant knew this road and that it was a dead end (ERISP Q&A 172 ff) though he subsequently denied the latter knowledge in cross-examination;

(c) That Sweethaven Road was a short distance away (300 – 500 metres) from the Appellant’s home in Pueblo Street – see Map Ex. F);

(d) That the Appellant was out driving alone in his Ford Festiva on the Friday evening of the attack upon the Complainant (ERISP Q&A 46 ff); The Appellant claimed to have returned home by 8.30 pm at the latest (ERISP Q&A 93);

(e) That the Appellant’s evidence at trial that he was mistaken about being out alone on the Friday night and that in fact he was with his family visiting a cousin, was not credible; (the Appellant during his ERISP was quite adamant that he was not out visiting his cousin – see ERISP Q&A 68ff );

(f) That the alibi evidence in the defence case at trial should be rejected (because the Appellant was quite clear in his ERISP that he did not visit his cousin on the night in question – see Q&A 68ff).

48 On the alibi evidence, the Appellant submits (para 38) that the Accused had given what the submissions described as a “consistent version”. However this so-called consistent version was merely an assertion put to the Appellant during his interview by the interviewing detective prior to the record of interview being finalised whereat Q 71 (record of interview p51-2) where the following question and answers appears:

“Q. Did you tell me [should read Mr] Khoshaba where you had been on Friday night?
A. [intprtr] Yes I said to him that I went to Fairfield … but I didn’t, we didn’t speak a lot.”

49 And then there is Q 73 which I quote below:

“Q. When I spoke to Mr Khoshaba, he told me that you had said to him that you had been visiting family at Fairfield on Friday evening.
A. [intpertr] There might be some misunderstanding. I told him that I went to Fairfield and came back. I didn’t tell him that I visited family.”

50 It will be apparent from these questions and answers that the Appellant clearly denies that he visited family on the Friday night. Rather it is consistent with the original account that he went to Fairfield and came back that (Friday) night. Then, as it will be recalled, he reversed that account in giving evidence, claiming to have been confused between Thursday and Friday in his recollection. The Appellant had earlier stated in his ERISP interview that he had showered and shaved, obtained $20 from his wife and then drove to the Fairfield RSL but then changed his mind and decided not to go to the Club and then drove straight home again (ERISP Q & A 46 ff).

51 The Respondent argues, and with some cogency, that the jury may well have considered this an odd account, consistent with the desire by the Appellant, having told his wife that he was going to the RSL Club, to ensure that his account would marry up with any account that his wife might give to the police as well as being consistent with the Appellant’s original plan to go to the RSL Club being interrupted or changed for some reason. I agree with the Crown’s contention that the Appellant’s evidence on this matter was not convincing particularly in so changing his explanation as to where he had been that night after having been so emphatic in his ERISP interview that he had not been with relatives. The jury were entitled to consider him as unreliable, despite evidence of prior good character. Thus the Crown submits that it was open to the jury to conclude that the alibi witnesses, who stated that the Accused was visiting relatives, were either honestly mistaken, or, were trying to help the Appellant. It should be borne in mind that all these witnesses, as well as the two neighbours who gave evidence (of seeing the Appellant return home about 9.30 pm with his family and that he did not leave the house thereafter that night) were either relatives or friends of the Appellant. I agree that in all the circumstances, the jury was entitled to reject that alibi evidence.

Conclusion

52 The evidence in the Crown case was sufficient to entitle the jury to find the Appellant guilty in respect of all three counts in the indictment. The verdict was not unreasonable. The combination of circumstances earlier recounted, were such as to entitle the jury to exclude the existence of any other reasonable hypothesis consistent with innocence.

Ground 1

53 This ground is that a miscarriage of justice occurred as a result of a failure of a trial judge to direct the jury in relation to lies allegedly told by the Accused.

54 It was submitted that, in the event that the lies were relied on in relation to consciousness of guilt, a direction in accordance with Edwards v The Queen (1993) 178 CLR 193 should have been given. In the alternative, if it was a matter relied on in relation to credit, a direction in accordance with Zoneff v The Queen (2000) 200 CLR 234 should have been given. As was noted in the joint reasons of Gleeson CJ, Gaudron, Gummow and Callinan JJ in Zoneff (at par 17):

“… if there is a risk of confusion or doubt as to the way in which the prosecution puts its case, the trial judge should inquire of the prosecution whether it contends that lies may constitute evidence of consciousness of guilt and, if so, he or she should require identification of the lie or lies in issue and the basis on which they are said to be capable of implicating the Accused in the commission of the offence.”

55 In the circumstances of Zoneff, where alleged lies were not relied upon as consciousness of guilt, their Honours stated (at par 23-24):

“[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."

56 See also R v GJH (2001) 122 A Crim R 361; R v Galea and Yeo [2001] NSWCCA 270.

57 It was submitted that the present was a case where there was “a risk of misunderstanding about the significance of possible lies”. In the event no directions at all were given in relation to the possible lies in the record of interview. It was submitted that a miscarriage of justice was occasioned as a result.

58 Concededly leave is required under rule 4 of the Criminal Appeal Rules to advance this ground, there not having been any objection taken at the trial to the absence of a direction. The Appellant frankly conceded the difficulty he would have in obtaining such leave, as is apparent from paragraphs 7 to 12 of the Crown’s written submissions which for convenience I quote below:

“7. The Appellant requires leave to argue this ground of appeal (Rule 4 Criminal Appeal Rules). It is submitted that leave ought be refused. No direction such as is now being submitted to have been necessary was requested at trial, where the Appellant was represented by experienced Counsel. In relation to the issue of lies the trial judge said (t. 266. 15):

His Honour: All right. Mr. Crown lies – Mr Nicol takes the view that the definition (sic – presumably should read ‘direction’) on alibi would cover what he requires as a definition (sic) of lies. If the Accused has lied about the alibi, even if they reject the alibi does not mean they then convict. They then have to go and examine the evidence don’t they, such that it’s the standard alibi direction.

Crown Prosecutor: I think so.

His Honour: Do you take the same view as Mr. Nicol?

Crown Prosecutor: Yes…
Further, at transcript p. 271 his Honour says:
Mr Nicol does not want a separate direction on lies. He asks for a direction on alibi. You don’t oppose that submission?
Crown Prosecutor: No your Honour.
His Honour: So I will do that, I’ll give the direction on alibi. I won’t give a separate direction on lies.


8. It is submitted that it is well known that as a tactical matter, defence counsel will frequently wish to avoid any direction on lies because to seek one will merely emphasise that the Accused may have lied and may steer a jury toward regarding this as ‘consciousness of guilt’. The Appellant raised prior good character and it is hardly surprising, in those circumstances, that the defence would not seek a lies direction.

9. Addresses were apparently not recorded. However there is nothing in the exchanges above to indicate that the Crown was seeking to rely on lies as consciousness of guilt. Nor has the Appellant adduced any evidence that this occurred. An Edwards v The Queen direction was not required in these circumstances.

10. It is submitted that the most that the jury would have done with the Appellant’s changed story as to what he was doing on the night in question, is to have regarded it as going to his credit only. This is not a case where a Zoneff direction was required. The High Court in Zoneff contemplated that such a direction might be appropriate if there was a “ risk of confusion or doubt as to the way in which the prosecution puts its case ”. The risk of confusion in Zoneff arose because the trial judge himself had introduced the term ‘consciousness of guilt’ into his summing up when dealing with lies, whereas the Crown in that case had made no reference to it, not having addressed as the Accused was unrepresented.

11. His Honour’s directions on alibi commence at SU p. 24 (at the bottom) and continue to p. 28. They are balanced and complete and correctly explain to the jury how they must treat alibi evidence, and the absence of any burden upon the Accused. He does not refer to ‘consciousness of guilt’. At the top of SU p. 28 his Honour says:

…if you reject the alibi evidence altogether then you do not say he is guilty, what you do is you then examine the evidence, the other evidence to see if that proves that he is guilty beyond a reasonable doubt.

12. It is submitted that this ground cannot be sustained and leave should be refused.”

59 It is clear that the Accused did not want a separate direction on lies at trial. That is clearly enough explicable on tactical grounds. I consider leave under rule 4 should not be given to advance this ground. Moreover, I agree neither direction was required.

Ground 2

60 This ground contends that a miscarriage of justice occurred as a result of the failure of the trial judge to direct the jury that they could not convict the Appellant unless they were satisfied beyond reasonable doubt that the car in the possession of the Appellant was the car described by the Complainant.

61 It is convenient to state the elaboration of this ground as put in the Appellant’s written submissions from which I quote below:

“24. Leave is sought to rely on this ground.

25. The case against the Appellant was circumstantial. It consisted of evidence of the vehicle, evidence of the description of the attacker and evidence that the Accused lived within five hundred metres of the location at which the offences were committed. However the description of the attacker was in broad terms. In the absence of the evidence of the car there was only evidence that the Accused was physically not inconsistent with the attacker and lived locally.

26. In Shepherd v The Queen (1990) 170 CLR 573, Dawson J said (at 581):

“… an intermediate fact which is an indispensable step upon the way to an inference of guilt, whether it be a fact derived from a single piece of evidence or a conclusion of fact drawn from a body of evidence, must be proved beyond reasonable doubt if the ultimate inference is to be the only reasonable hypothesis.”

27. His Honour also observed, at 579:

“If it is appropriate to identify an indeterminate fact as indispensable it may well be appropriate to tell the jury that that fact must be found beyond reasonable doubt before the ultimate inference an be drawn”


28. In the present case, the identity of the car was an indispensable link in the chain between the Appellant and the offence. The other evidence could be used to establish that the Appellant was, in fact the driver of the car entrusted to him at the time of the attack, but only if the jury were satisfied beyond reasonable doubt as to the identity of the car in the first place.

29. It is submitted that the present was a case in which the jury should have been instructed that they could not be satisfied beyond reasonable doubt as to the guilt of the Appellant unless they were first satisfied beyond reasonable doubt as to the identity of the car.”

62 Dealing first with the question of leave under rule 4, I agree with the Appellant’s submission that there is no practical advantage entailed in allowing the matter of the direction to go without objection. Thus I would give leave to rely on that ground.

63 The Crown sought to deal with this ground in various ways. First it contended in its written submissions that the trial judge’s actual summing up afforded no basis for complaint. Reference was made by the Crown to the summing up on circumstantial evidence found at pp 9 to 12. However, that part of the summing up which comes nearest, still falls short of an express reference to proving beyond reasonable doubt that the car that was in the possession of the Accused was the car described by the Complainant. What is to be found is the following passage, but it does not, at that point, identify the identity of the car as an essential element to be proved beyond reasonable doubt. I quote:

“The Crown points to a number of circumstances which the Crown says from those circumstances you could conclude or infer that the Accused is guilty because the onus of proof is on the Crown to prove its case beyond a reasonable doubt as to every essential element of the charge. Any such inference or conclusion from basic facts relied upon by the Crown, must of course be a conclusion reached by you beyond reasonable doubt, having taken into consideration not only the material presented on behalf of the Crown, but also any material presented on behalf of the Accused and after having given careful consideration to the submissions of counsel on behalf of the Crown and the Accused.”

64 Nonetheless the Crown submits that the jury would have been under no misapprehension as to the importance of the vehicle as a component or essential element of the circumstantial case presented by the Crown. In the alternative, it is contended that it was not correct to classify that component as an indispensable intermediate fact, in the sense used by Dawson J in Shepherd v the Queen (1990) 170 CLR 573 at 581.

65 The Crown in support of its submission quoted more fully the passage in the judgment of Dawson J in Shepherd (supra) (with whom Toohey and Gaudron JJ agreed) with particular reference to paragraph 5, with its resort to the well-known metaphor referred to by “Wigmore on Evidence”; that is to say, the distinction between evidence consisting of supporting strands in a cable rather than essential links in a chain. The Crown submitted that the identify of the car met the former description rather than the latter. I quote from that passage in Shepherd below:

“5. On the other hand, it may sometimes be necessary or desirable to identify those intermediate facts which constitute indispensable links in a chain of reasoning towards an inference of guilt. Not every possible intermediate conclusion of fact will be of that character. If it is appropriate to identify an intermediate fact as indispensable it may well be appropriate to tell the jury that that fact must be found beyond reasonable doubt before the ultimate inference can be drawn. But where - to use the metaphor referred to by Wigmore on Evidence, vol.9 (Chadbourn rev. 1981), par.2497, pp 412-414 – the evidence consists of strands in a cable rather than links in a chain, it will not be appropriate to give such a warning. It should not be given in any event where it would be unnecessary or confusing to do so. It will generally be sufficient to tell the jury that the guilt of the Accused must be established beyond reasonable doubt and, where it is helpful to do so, to tell them that they must entertain such a doubt where any other inference consistent with innocence is reasonably open on the evidence.”

66 The Crown’s argument on this point is that even without establishing that the car in the possession of the Appellant was the car described by the Complainant, the other items of evidence, including the description of the Accused, were sufficient for the jury to convict. I do not agree. The description of the car is so integral to the Crown’s case as to be indispensable to it. It is in that sense an essential link in the chain.

67 When however one turns to the actual summing up, the passages between pp 9 to 12 fall short of an express direction of the terms earlier described, that is to say express and specific reference to the identity of the car as an essential element.

68 However, as emerged in argument, the summing up at page 37 comes close enough to giving the direction required, when read with the earlier summing up. I quote from the relevant part of the summing up:

“The Crown said ME is wrong about the registration number she gave you. She said KWA-470, she was wrong about that. In that detail the Crown said she is wrong. If you conclude it is reasonably possible that there is another red car out there that could fit the description then you would find the Accused not guilty. …”

69 Thus taking into account the directions given and recognising that Shepherd does not make it a universal requirement for such a direction to be given (Dawson J uses the words “it may well be appropriate”), I am satisfied that no miscarriage of justice occurred as a result of the failure to give such direction in those precise terms. Moreover, so strong was the circumstantial evidence before the jury that I do not consider any miscarriage of justice did occur when account is taken also of the directions given.

Conclusion

70 I consider that the third ground of appeal fails.

OVERALL CONCLUSION

71 None of the grounds of appeal against conviction in my judgment succeed. I would propose that the Appellant’s appeal should be dismissed.

72 SIMPSON J: I agree with Santow JA.

73 SMART AJ: I agree with Santow JA.

ORDERS

74 Appeal dismissed.

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Last Modified: 03/07/2003