R v Wright

[1996] QCA 435

IN THE COURT OF APPEAL	[1996] QCA 435
SUPREME COURT OF QUEENSLAND	C.A. No. 340 of 1996
Brisbane
BeforeMacrossan C.J. Moynihan J. Cullinane J.
[R v Wright]
The owner of the vehicle, Mr Wruck, gave evidence claiming ownership. He said that it unreasonable and contrary to the evidence and a complaint that the learned trial judge failed to warn the jury of the danger of accepting evidence of statements made to police officers which were not able to be independently confirmed or corroborated. This ground was based upon the principles in McKinney v The Queen (1991) 171 C.L.R. 468. Leave to amend the notice of appeal was granted so as to allow the appellant to raise a further ground. By the amendment the appellant claimed that the trial judge's directions to the jury as to the circumstances in which a false statement could be used as evidence tending to prove guilt was deficient and amounted to a misdirection. had been stolen at a date which ultimately seems to have been accepted as October 1994.

T H E Q U E E N

v.

KEITH ROBERT WRIGHT

(Appellant)

REASONS FOR JUDGMENT - THE COURT

Delivered the 8th day of November, 1996

The appellant was convicted in the District Court at Brisbane of having possession of a motor vehicle without the consent of the person in lawful possession thereof with intent to deprive the owner or person in lawful possession thereof of its use and possession either temporarily or permanently. This offence is provided for in s.408A(1)(b) of the Criminal Code.

The appellant had been charged with five offences all relating to property. Three were receiving counts and the other two were counts under s. 408A(1)(b). He was acquitted on all but the count referred to above (Count 5 in the indictment) which concerned a Toyota utility.

The relevant date of possession for the purposes of the offence was 19th October 1995.

On 19th October 1995 the police attended at a property which the evidence suggested was owned by his three children and from which the appellant's wife conducted a home removal business. The property was of some acres and there were a number of buildings on it. Two were residences occupied by the appellant and his wife and one of their sons and his family whilst other buildings were used for the purposes of the business. There were also on the property homes acquired in the course of the home removal business.

Two police officers deposed to a conversation with the appellant about the Toyota on the day they attended the premises. One of the police officers had a tape recorder which, according to the evidence, was found some six days later to have malfunctioned. The evidence of the conversation was based upon a recall of what had taken place and represented a shared recollection of the two police officers. Both police officers said that in the course of this conversation the appellant said that the Toyota had been on the property for about 18 months and had been left there by a relative of his wife who had gone up north. This evidence was challenged in cross-examination.

The appellant called his wife as a witness although he did not give evidence himself. Her account of the Toyota's presence on the property was that an employee of a neighbour had asked permission to leave the vehicle on the property when it had broken down and that she had given permission for this.

It was conceded by the respondent that in order to convict the appellant the jury had to be satisfied that in giving the account he did the appellant had lied and that such lie was of the kind which could furnish evidence of guilt. In addition to the appellant's account of the Toyota's presence on the land the respondent also relied upon what was said to be a discrepancy capable of being treated by the jury as a lie. This concerned the period of 18 months that the appellant according to police officers claimed the vehicle had been on the property as at October 1995, and on the other hand Mr Wruck's evidence that the vehicle had been stolen from him in about October 1994.

Where a lie is relied upon as evidence of guilt it is necessary that the jury be instructed as to what the lie must amount to before it can be used as evidence of such guilt.

In the joint judgment of Deane, Dawson and Gaudron JJ. in Edwards v The Queen (1993) 178 C.L.R. 193 at pp. 210-211 the matter was put in the following way:-

"A lie can constitute an admission against interest only if it is concerned with some circumstance or event connected with the offence (i.e. it relates to a material issue) and if it was told by the accused in circumstances in which the explanation for the lie is that he knew that the truth would implicate him in the offence. Thus, in any case where a lie is relied upon to prove guilt, the lie should be precisely identified, as should the circumstances and events that are said to indicate that it constitutes an admission against interest. And the jury should be instructed that they may take the lie into account only if they are satisfied, having regard to those circumstances and events, that it reveals a knowledge of the offence or some aspect of it and that it was told because the accused knew that the truth of the matter about which he lied would implicate him in the offence, or, as was said in R v Lucas (Ruth) [1981] Q.B. 720, at p.724, because of 'a realization of guilt and a fear of the truth'.

Moreover, the jury should be instructed that there may be reasons for the telling of a lie apart from the realization of guilt. A lie may be told out of panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the offence. The jury should be told that, if they accept that a reason of that kind is the explanation for the lie, they cannot regard it as an admission. It should be recognized that there is a risk that, if the jury are invited to consider a lie told by an accused, they will reason that he lied simply because he is guilty unless they are appropriately instructed with respect to these maters. And in many cases where there appears to be a departure from the truth it may not be possible to say that a deliberate lie has been told. The accused may be confused. He may not recollect something which, upon his memory being jolted in cross-examination, he subsequently does recollect."

The directions to the jury on this subject appear at pp.165-6 of the record:-

"It is suggested by the Crown that in view of the evidence of Mrs Wright that in fact the vehicle belonged to a worker who was employed by a neighbour and was moved out of the way and left conveniently at their premises; that the accused's version was a lie and that it was a false statement. Just because a person makes a false statement when interviewed by the police does not mean that he is guilty of the offence and remember we are only talking now about the relevant count which is count 5 but a false statement made by the accused when interviewed may, in certain circumstances, be taken into account as strengthening the inference of guilt.

Before you can use a statement as strengthening the inference of guilt there are four elements. Firstly: you must be satisfied that the statement was false and that the accused knew it was false; secondly, the statement must be relevant to the offence charged; thirdly, you must take into account that the statement was not on oath and finally: you must take into account any other reason for making this statement. For example, to save the accused embarrassment or to protect someone else.

So, was it false, is it relevant, was it not made on oath, was he protecting someone? Now, you must consider those elements before you can then take the quantum leap and say that it strengthens the inference of guilt but if you are so satisfied in relation to those matters, then you may rely upon that false statement to strengthen the inference of guilt in relation to count 5."

His Honour drew the jury's attention to some of the matters which he was required to. However it seems to us that the direction was plainly deficient in that it failed to direct the jury as to the essential quality that the telling of a lie must have, if it is to amount to evidence against an accused person, namely that it reveals knowledge of the offence or some aspect of it and that it was told because the accused knew that the truth of the matter about which he lied would implicate him.

In our view the failure to direct the jury about this matter amounted to a serious misdirection. The jury might have been left with the impression that it was sufficient if they were satisfied that the appellant had lied, provided he had not done so to save himself embarrassment or to protect somebody else.

As has already been mentioned, the respondent concedes that a conviction could be justified only upon the basis of the appellant's false account. In a supplementary outline provided after the Court had reserved its decision the respondent conceded that the direction was inadequate.

As to the complaint that the learned trial judge ought to have given a McKinney type direction, it is immediately apparent that the circumstances in which such a direction is required are not present here. The appellant was not in custody and the statement that he made was not on its face confessional in nature. It was only when the appellant's wife was called as part of the defence case that the primary ground upon which the claim that his account was a false one is based arose.

Support can be found in the authorities for a somewhat broader principle than that to be found in McKinney. This would require a warning to be given whenever it was necessary to do so in order to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case. See Longman v The Queen (1989) 168 C.L.R. 79.

The learned trial judge here was not asked to give such a direction and in our view the circumstances were not such as to require him to do so. This is not of course to suggest that it is anything other than highly desirable that police officers record conversations with persons who may have been involved in the commission of an offence.

In our view the misdirection in relation to the use of false statements was of such significance in the present case as to lead to the conclusion that the appeal should be allowed and the verdict of guilty set aside.

As to the question of a new trial, the case against the appellant was not a strong one. The appellant has been acquitted on the other four counts of which he had been charged. There are some unsatisfactory aspects of the matter. There was no exploration of the question whether the appellant was purporting to relate something of his own knowledge or something which his wife or someone else had told him. Nor was Mrs Wright cross-examined about whether she had discussed what she says had occurred with the appellant.

We think that the appropriate course to take in the circumstances of this case is to allow the appeal, quash the conviction, make no order for a new trial, and direct a judgment and verdict of acquittal to be entered.