Regina (C'Wealth) v Baladjam [No 27]

[2008] NSWSC 1448

CITATION:	Regina (C'Wealth) v Baladjam & Ors [No 27] [2008] NSWSC 1448
HEARING DATE(S):	11/06/08
JUDGMENT DATE :	24 June 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Whealy J at 1
DECISION:	Order that the evidence of the burning Musso FDT 113 on 10 November 2005 be excluded from the trial.
CATCHWORDS:	CRIMINAL LAW - Application to exclude evidence of burning of motor vehicle - Evidence of consciousness of guilt - Aspects of revelance under s 55 of Evidence Act 1995 - Principles relating to exclusion of evidence under ss 135 and 137 of Evidence Act 1995
LEGISLATION CITED:	Evidence Act 1995
CASES CITED:	Edwards v The Queen (1993) 178 CLR 193 at 210 Quinlan v Regina [2006] NSWCCA 284; [2006] 164 A Crim A 106 R v Chang 140 A Crim R 573 per Or miston J at (47) R v Coolie [2005] 91SASR at (120)-(129) R v Cook [2004] NSWCCA 52 at (22)-(25) R v Dupas [2001] VSCA 109 at 26 R v Loader [2004] 89 SASR 204 at (10)-(48) R v Louden (1995) 37 NSWLR 683
PARTIES:	Regina (C'Wealth) v Omar BALADJAM [No 27] Regina (C'Wealth) v Khaled CHEIKHO Regina (C'Wealth) v Moustafa CHEIKHO Regina (C'Wealth) v Mohamed Ali ELOMAR Regina (C'Wealth) v Abdul Rakib HASAN Regina (C'Wealth) v Mohammed Omar JAMAL Regina (C'Wealth) v Mirsad MULAHALILOVIC Regina (C'Wealth) v Khaled SHARROUF Regina (C'Wealth) v Mazen TOUMA
FILE NUMBER(S):	SC 2007/2397001; 2007/2398001; 2007/2399001; 2007/2400001; 2007/2452001; 2007/2454001; 2007/2396001; 2007/2455001
COUNSEL:	W Abraham QC; G. Bellew SC; C. Donnell; Ms S McNaughton - Crown M Buscombe SC; R Pontello - Accused Baladjam C Waterstreet; P Lange - Accused K Cheikho R Button SC; I Nash - Accused M Cheikho D Dalton SC; E Ozen - Accused Elomar Ms D Yehia; Ms S Beckett - Accused Hasan G Scragg; D Carroll - Accused Jamal G Turnbull SC; A Djemal - Accused Mulahalilovic W Brewer; M Pickin - Accused Sharrouf S Hanley; - Accused Touma
SOLICITORS:	Commonwealth DPP Greg Walsh & Co - Accused Baladjam Lawyers Corporation Ltd - Accused K Cheikho William O'Brien & Ross Hudson Solicitors - Accused M. Cheikho Nyman Gibson Stewart - Accused Elomar Legal Aid Commission - Accused Hasan Michael Doughty Solicitor - Accused Jamal Matouk Joyner Lawyers - Accused Sharrouf Lawyers Corporation Ltd - Accused Mulahalilovic Burke & Elphick Lawyers - Accused Touma

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

WHEALY J

PARRAMATTA: Tuesday 24 June 2008

2007/2397001 - Regina v Omar BALADJAM [No 27]
2007/2395001 - Regina v Khaled CHEIKHO
2007/2398001 - Regina v Moustafa CHEIKHO
2007/2399001 - Regina v Mohamed Ali ELOMAR
2007/2400001 - Regina v Abdul Rakib HASAN
2007/2452001 - Regina v Mohammed Omar JAMAL
2007/2454001 - Regina v Mirsad MULAHALILOVIC
2007/2396001 - Regina v Khaled SHARROUF
2007/2455001 - Regina v Mazen TOUMA

JUDGMENT - Application to exclude evidence of burning of motor vehicle - Consciousness of guilt? - Relevance under s 55 of the Evidence Act 1995, exclusion under ss 135 and 137 of the Evidence Act.

1 HIS HONOUR: This is an application made on behalf of Mr Hasan to exclude evidence concerning the burning of a motor vehicle FDT 113 on 10 November 2005. Submissions in support of the application were made by Ms Beckett on behalf of Mr Hasan. Those submissions were shared by the other defendants. Mr Scragg (for Mr Jamal) and Mr Waterstreet (for Khaled Cheikho) were permitted to make additional submissions in support of the application.

2 The Crown, represented by Ms Wendy Abraham QC pressed for the admission of the evidence at trial.

Background

3 The accused (apart from Jamal) were arrested and charged on 8 November 2005. They have remained in custody since that time. Mr Jamal was arrested and charged on 20 December 2005. He has been in custody since that date.

4 In the early morning of 10 November 2005, a Musso motor vehicle, registration number FDT 113, was observed burning in Northam Avenue, Bankstown. The vehicle was parked beside an electrical substation on the nature strip. It had been observed in this location at about 3.30pm on 9 November 2005 by a local resident Mr Socratous. At about 3.30am on 10 November, Ms Miria Mahia of 251 Northam Avenue, Bankstown, heard "popping" and "whooshing" sounds. She also heard the sound of footsteps of two people running. Ms Mahia looked through a window and saw the burning car. There were flames around the front passenger side and through the back into the boot. She reported the fire and waited the arrival of assistance. While the car was on fire, she heard a number of "popping" noises coming from underneath the car. Mr Van Nguyen, who lived next door, was woken by a "small explosion" and observed the four-wheel drive on fire from his window. He also reported the fire to an emergency number.

5 A Revesby fire station crew received a call to attend a passenger vehicle fire at 3.30am. The four-crew members – Christopher Atkins, Steven Gow, Andrew Gibson and Martin Dixon arrived at 3.38am where they found a Mercedes four-wheel drive well alight opposite 251 Northam Avenue Bankstown. The vehicle was parked beside an electrical substation on the nature strip. Christopher Atkins noticed that the front passenger and engine areas were “heavily involved in fire”. Three of the fire officers (Atkins, Gow and Dixon) noticed that the front near side window of the vehicle was missing, plastic cling wrap was wound around the front near side window frame and the rear window was in place but broken due to the heat (the remaining glass in the rear window was later removed by fire officers to allow further investigation of the fire). Later, they also noticed a commercial size roll of plastic cling wrap on the floor behind the front near side passenger seat.

6 The fire officers extinguished the fire in the passenger compartment first. Then Gow forcibly opened the engine hood and the fire in the engine compartment was extinguished. Atkins determined that the initial seat of the fire was in the engine compartment and that the fire had spread through the firewall into the passenger area. Atkins based this conclusion on a comparison of “the considerable damage to the engine with the lesser damage to the passenger compartment.” Although the fire officers Atkins and Gow did not observe an accelerant container consistent with a deliberately lit fire, Atkins “considered the fire to be of a suspicious nature due to the fact that the owner or owners were not in attendance and that a conclusive cause of the fire was not evident.”

7 After the fire was extinguished, the vehicle was examined by AFP Forensic Officers who found a number of items within the vehicle including the following:

a. 9 x 10 litre “Refresh” brand of distilled water (these are the same brand as those purchased at Autoquip);

b. 1 x 5 litre “Oxyplus” container of hydrogen peroxide still containing an amount of hydrogen peroxide;

c. 2 shovels and 2 mallets (with dirt adhering to them) and a rake;

d. 4 very detailed topographical maps covering a relatively remote part of the Blue Mountains west of Sydney;

e. Leftover food items and an esky;

f. A book entitled “Fortress of the Muslim” (Jamal’s fingerprint was located on page 96 of this book).

DNA analysis of items from the vehicle produced the following results:

a. One white skull cap (tape lift off interior) – Khaled Cheikho has not been excluded as a contributor to the DNA profile;

b. Gun holster (tape lift off) – the DNA components identified are the same as the DNA profile from Baladjam;

c. Tea towel (tape lift) – Jamal has not been excluded as a source of a partial DNA profile;

d. Sunglasses – a mixed DNA profile from a minimum of 3 individuals was obtained – Hasan and Khaled Cheikho have not been excluded as contributors to the profile;

e. Converse T-Shirt (tape lift off in the neck) – a mixed DNA profile from a minimum of 2 people was obtained – the major DNA components are identical to those obtained from a reference sample relating to Baladjam.

8 The AFP forensic chemist Dr Naomi Speers found petrol in the following items found in various locations inside the vehicle. These were:

Item 91 Carpet from rear passenger side floor (carpet and underlay – lightly charred) (FDT/SD/46);
Item 93 Foam seat sample: six sections of foam and 1 section of upholstery (lightly charred);
Item 109 Floor well carpet sample 2 x sections of carpet (charred);
Item 111 Foam seat sample FDT/SD/45 1 section yellow foam from the front passenger seat (lightly charred).

9 Dr Speers also found that Item 107 [control seat foam sample – 2 x pieces of foam from rear drivers side seat (no charring)] contained residues that could be due to the presence of small amounts of petrol. Dr Speers stated that “the identification of ignitable liquid residues does not necessarily lead to the conclusion that a fire was deliberately lit as there may be legitimate reasons for the presence of flammable liquid.” However, Dr Speers also stated that “Research (Cavanagh et al, 2002) has shown that it is uncommon for petrol residues to be detected in the cabin of vehicles.” [Cavanagh, K, Du Pasquier, E, and Lennard, C Background interferences from car carpets evidential value of petrol residues in cases of suspected vehicle arson Forensic Science International 2002 (125) 22-36].

10 Petrol was also found on the following items from the ground:

Item 92 Ground sample FDT/SD 38 - Heavily charred unidentifiable material; and
Item 108 Ground sample - Heavily charred NSW number plate and other unidentifiable material.

11 There was no damage to the exterior door locks and no visible damage to the ignition.

12 A Multi Park Pass numbered B05017951 expiry date 8 August 2005 was affixed to the interior of the top driver side of the windscreen.

13 The photographs of the vehicle taken in situ by Sinead Done show the partially burned vehicle adjacent to the power sub-station. When the photographs were taken the rear window had been removed. The front windscreen was partially intact with a section broken. There was no window glass in the front passenger’s side door. This is consistent with the observations by the fire officers. The front and rear driver’s side windows were intact and closed. The rear passenger’s side window was also intact and closed. Therefore, if Socratous was correct in his observation that the rear passenger’s side window was open when he observed a vehicle beside the power substation at 3.30pm on 9 November 2005, that window was closed by the time the fire started at about 3.30am on 10 November 2005.

14 The fire was suspicious. The initial seat of the fire was in the engine compartment and the fire spread into the passenger area. There were traces of petrol found on various items inside the vehicle including the front passenger seat, the rear passenger seat, rear passenger floor and the heavily charred number plate. No accelerant container was found. Petrol is an accelerant due to its flammability and the fact it can accelerate the rate of fire spread.

15 As noted above, there was no damage to the exterior door locks and no visible damage to the ignition. The key to the vehicle has never been located.

Submissions on behalf of Mr Hasan

16 Ms Beckett took objection to the evidence relating to the burning of the Musso motor vehicle FDT 113. Further objection was also taken to the finding of the vehicle in a burnt state.

17 The initial written submissions made on Mr Hasan's behalf took exception to this evidence on the basis that it was to be used by the Crown as evidence demonstrating consciousness of guilt. In that regard, it was submitted that the Court could not be satisfied that the preconditions to the admission of evidence on this basis had been established. Those conditions were stated in R v Cook (2004) NSWCCA 52 at (22)-(25) by Simpson J with whom Ipp JA and Adams J agreed. This decision was cited with approval in Quinlan v Regina (2006) NSWCCA 284; (2006) 164 A Crim R 106 and referred to by me in R v Baladjam [No 8] at para 10. The five preconditions (in the case of a lie by an accused person) were these:

(a) The lie must be deliberate.
(b) It must relate to a material issue.
(c) The motive for the lie must be the result of a realisation of guilt and a fear of the truth;
(d) Where relevant, it must be shown to be a lie by evidence or admission from an independent witness; and
(e) The lie must be capable of being seen as indicating consciousness of guilt of the specific offence with which the accused is charged.

18 Although Cook was dealing with the situation of a lie indicating consciousness of guilt, the principles are equally applicable to other types of post-offence conduct tendered as indicative of consciousness of guilt.

19 The Crown, in its written submissions, made it clear that the evidence was not being relied upon by the Crown as evidence of a consciousness of guilt. Rather, the evidence was to be relied upon, if admitted, as part of the Crown's circumstantial case in proof of the offence against each of the accused. The Crown made it clear that it urged the relevance of the fact that the vehicle was found burning on a number of bases. First, this fact explained the circumstances and timing of the finding of this vehicle by the authorities. Secondly, it explained the condition of the vehicle and its contents. Thirdly, it had relevance for any consequential effect on the visual or forensic examination of the contents of the vehicle. Fourthly, and most importantly for the present debate, the Crown maintained that the fact that the vehicle was set alight was circumstantial evidence which, together with other evidence, was relevant in proof of the offence. The Crown argued that, in this regard, it would be open to the jury to infer from the evidence, taken together with other evidence, that associates of those accused who were in custody as at 10 November 2005, set fire to the vehicle in an attempt to destroy it and its contents. In this regard, the burning of the vehicle was to be seen as part of a series of acts carried out by the accused or on their behalf to ensure that the authorities did not locate the items that had been obtained or used in furtherance of the conspiracy. Actions of that kind were relevant to show the existence of the conspiracy, its continued operation and to rebut the suggestion that actions taken allegedly in furtherance of the conspiracy were of an innocent nature.

20 In the light of the approach taken by the Crown, Ms Beckett argued that the evidence in contention was, in effect, to be used by the Crown as indicating something very close to consciousness of guilt. At the very least, the jury would be misled into reasoning that the evidence demonstrated guilt and that this would be so notwithstanding any directions that might be given by the Court. According to Ms Beckett's submissions, there was in addition a fundamental failure in the Crown's position to link the alleged post-offence conduct with the accused.

21 This was so for two reasons. First, the jury could not be satisfied that the fire had been deliberately lit. Secondly, the jury could not be satisfied that it was the accused who had organised the burning of the car. Ms Beckett submitted that the absence of an appropriate nexus between the events in question and the accused robbed the evidence of the capacity to be used in the way in which the Crown asserted it could be used by the jury.

22 Ms Beckett examined a number of authorities relied upon by the Crown and sought to distinguish these. These authorities were R v Loader (2004) 89 SASR 204 at (10)-(48); R v Collie (2005) 91 SASR 339 at (120)-(129); R v Dupas (2001) VSCA 109 at 26; and R v Louden (1995) 37 NSWLR 683. Ms Beckett submitted that there were a number of ways in which these cases could be distinguished from the present situation. One important way, however, was that three of these were each cases in which the acts in question which were permitted to be used circumstantially, rather than as consciousness of guilt, were acts plainly done or carried out by the accused. Here, by contrast, there is a very real issue as to whether the accused had any connection at all with the burning of the car.

23 Ms Beckett submitted that the case closer to the present was represented by the decision in R v Chang 140 A Crim R 573, especially per Ormiston J at (47).

24 In short, Ms Beckett argued that Chang's case emphasised the danger of the present evidence and the likelihood that it would be misused, or at least misunderstood, by the jury were it to be admitted.

25 Finally, Ms Beckett argued that the evidence should be excluded under ss 135 and 137 of the Evidence Act. In this regard, counsel submitted that there was no probative value in the evidence relating to the burning of the vehicle for the reasons relied upon in the principal submission, especially the lack of nexus in the two senses I have already recited: no unequivocal evidence that the burning of the vehicle was deliberate, and no evidence connecting the burning of the vehicle to any of the accused. Secondly, Ms Beckett argued that the possibility of alternative scenarios for the burning of the car (eg a random act of vandalism) carried with it the consequence that the probative value of the evidence must be considerably reduced. Thirdly, Ms Beckett submitted that the suspicious circumstances of the burning of the car would be likely to be used by the jury to infer that the car was in fact burnt in order to eradicate evidence and, in that sense demonstrated an indication of a collective consciousness of guilt to the offence charged.

26 In relation to the giving of directions, Ms Beckett submitted that a direction telling the jury that they were not to use the evidence as consciousness of guilt would puzzle them exceedingly. The manner in which the Crown wished to rely upon the evidence really invited the jury to reason in an impermissible way. In those circumstances, directions could not prevent misuse of the evidence and s 137, in particular, demanded the exclusion of the evidence.

Submissions by other counsel

27 Mr Scragg drew particular attention to the fact that, of all the accused, it was only his client who was still at liberty on 9 and 10 November 2005. He submitted that there was no suggestion in the Crown case that Jamal was in the vicinity of the particular motor vehicle on any occasion relevant to the burning of the vehicle. His concern was that the jury would be tempted to draw an inference impermissibly that his client had been in some way involved in the fire that partly destroyed the motor vehicle. Secondly, he took issue with the expertise of Dr Speers and raised a separate argument suggesting that she did not have the expertise to give any opinion as to the cause, proliferation or the fire patterns that were found on the motor vehicle. By way of contrast, Mr Atkins had had considerable experience in the fire service and his opinion had been that he could not determine the cause of the fire, other than to state that it was suspicious by reason of the fact that the owners were not in attendance and that a conclusive cause of the fire was not evident. Finally, Mr Scragg submitted that the jury would not be entitled to come to the conclusion that the fire had been deliberately lit.

28 Mr Waterstreet submitted that the Crown reliance on the disputed evidence was really an invitation to invite the jury to speculate beyond the real weight and force of the evidence. He submitted that the Crown submission, in effect, was that the fire had been deliberately lit in order to conceal and avoid detection.

29 Secondly, Mr Waterstreet joined in the submission of others that the jury would not be entitled to conclude that the fire had been deliberately lit. He pointed to the fact that the motor vehicle was in a state of openness and, in this regard, referred to evidence of Mr Socratous that, on the previous afternoon, the window had been wound down. This, Mr Waterstreet argued, would have been an open invitation in the streets of Bankstown for vandalism or violence by marauding youths or other persons.

30 Finally, Mr Waterstreet submitted that the question as to who may have lit the fire, if it were deliberately lit, was one of complete speculation.

Crown submissions

31 First, the Crown made a number of detailed submissions as to why the jury might be satisfied that the fire was deliberately lit. These included the following matters:

(a) The time of commencement of the fire at 3.30am - consistent with the perpetrator choosing a time when detection might be less likely;

(b) Miss Mahia's evidence of hearing two people running on Northam Avenue at about the time the fire started;

(c) The description of the noises heard by neighbours were consistent with the use of an accelerant to start the fire;

(d) The detection by Dr Speers of petrol on items found in the interior of the vehicle and her statement that it was uncommon for petrol residues to be detected in the cabin of vehicles;

(e) The fact that there was no apparent damage to the external door locks, ignition or bonnet entry systems, together with evidence suggesting that the front nearside window had been broken for some time (Mr Socratous' evidence was at variance with the photos taken after the fire, in that the nearside rear window was not in a down or partly down position).

(f) Mr Atkins' suspicions about the cause of the fire;

(g) Mr Atkins' evidence as to the starting point of the fire was consistent with the fire being started by a person who was able to access the engine bay by opening the hood using the hood release in the cabin;

(h) The fact that no key has ever been found for the vehicle;

(i) The fact that the vehicle would have been destroyed by the fire within a short time, but for the attendance of the Fire Brigade, and the fact that it started in the front of the vehicle and moved through to the back was consistent with an attempt to burn the vehicle as well as its contents.

32 Secondly, the Crown pointed to the connection between the car and its contents with the accused. For example, Mr Hasan, on 5 November 2005 at about 11.30am, attended Padstow Station Hardware. The subject motor vehicle was observed parked behind the store on this occasion. On entering the store, Hasan informed the storeowner that he would collect his order of chemicals (being 3 x 20-litre drums of acetone and 10 x 20-litre drums of methylated spirits) and requested to load his vehicle at the rear of the store. The owner stated it was not possible to load at the rear of the store but offered to assist Hasan in loading the chemicals out from the front of the store. Hasan then commenced moving the chemicals to the front door of the store and, while doing so, enquired with the hardware store owner about sulphuric acid. A short time later Hasan advised the owner that he would get his vehicle. About 11.40am Hasan was observed to depart the store, but did not return. A short time later, at 11.44am, Hasan drove the subject vehicle past the store and drove in a manner that suggested that he was taking counter surveillance steps. He did not return to the store, however, and surveillance was lost a short time later.

33 The Crown also pointed to the fact that the vehicle is registered in the name of Kalaam Ahmed Syed. The vehicle was registered on 28 May 2005 expiring on 28 May 2006. Syed left Australia on 6 August 2005 and has never returned. The subject vehicle is one of two vehicles registered in his name. According to the Crown, this second vehicle was also used in furtherance of the conspiracy. It was also a Musso, having the registration number ATE 40N. It was located on 7 February 2006 in a car park in a block of units at 125 Meredith Street, Bankstown. It was covered in dust, had cobwebs on the side mirrors and a flat battery. The key to this vehicle was located on 8 November 2005 during the execution of a search warrant at Khaled Cheikho's premises. Located within the vehicle were a number of items which, by fingerprint and DNA analysis, may be linked to Hasan, Sharrouf, Jamal, Elomar, Moustafa Cheikho and Khaled Cheikho.

34 Thirdly, the Crown returned to the contents of the Musso FDT 113. The details of the connection with various of the accused have been recited earlier. The Crown, however, reminded me that the contents included a container of hydrogen peroxide and a 9 x 10-litre Refresh brand of distilled water. Each of these, according to the Crown case, was linked with purchases in furtherance of the conspiracy. There were also shovels, mallets and a rake. These items were consistent with the accused and their endeavours to hide or stockpile material already acquired in furtherance of the conspiracy, according to the Crown.

35 Fourthly, the Crown pointed to the fact that neither of these two vehicles were found at or near any of the accused's homes at the time of their arrest on 8 November 2005, despite the fact that they had been used in the way or ways contended for by the Crown.

36 Fifthly, the Crown pointed to the activities of the accused in October/November 2005 when there were a number of activities that were consistent with them being concerned to conceal items in their possession. There was, for example, the purchasing of PVC pipes and other items which were said to be capable of being used to hide ammunition. A number of those items, particularly those purchased in early November 2005, have never been found. The shovels, mallets and the rake are consistent with their being used in the process of concealment or stockpiling.

37 Sixthly, the Crown pointed to evidence of assistance from others in the early November period. On 4 November 2005, for example, Baladjam's brother and another man attended Mulahalilovic's premises in a white van registered QMU 754. Mulahalilovic loaded a number of items from his premises into the back of the van (two boxes and two full plastic bags). Later he carried a cardboard box to the vehicle and placed other items there as well. The vehicle left Mulahalilovic's premises and travelled to a house at 116 Old Kent Road, Mount Lewis. Later the van and Baladjam's vehicle travelled in convoy, although its ultimate destination and unloading are not precisely clear. On 4 November 2005 there was a telephone conversation between Baladjam and another male person, during which, according to the Crown case, there was a discussion in code referable to the storage of items obtained in furtherance of the conspiracy and whether there were fingerprints on those items.

38 On 7 November 2005, shortly after Hasan left his home, a person called Dannaoui and two other men arrived at the house. They loaded into a van a half-barrel, two 1.5-inch pipes approximately one inch in diameter and a number of unidentified items. Dannaoui drove away by himself.

39 The Crown argued that these instances, taken together with the whole of the Crown case, supported the inferences the Crown suggested the jury might draw from the burning of the Musso vehicle. For that reason, the Crown submitted it was clear that the evidence in dispute was not itself sought to be used by the Crown as evidence of consciousness of guilt. Rather, it was to be seen as part of the Crown's circumstantial case that the accused had been involved, either by themselves or at their behest, with the carrying out of a series of acts designed to ensure that the authorities did not locate items that had either been obtained or used in furtherance of the conspiracy.

40 The Crown suggested it would be open to the jury to infer that this process continued for a few days after their arrest and included the burning of the vehicle. In essence, the Crown argued that it was no different from their concealment or abandonment of falsely connected mobile phones which had been used at various times during the conspiracy. Some of these were not located following the arrest of the accused. In the same way, the items such as the shovels, mallets and the rake were being disposed of for the same reason albeit that the disposal lay in the hands of persons other than the accused themselves. A third example, relied on by the Crown, was the burying of ammunition prior to the arrests.

41 The Crown submitted that one aspect of the overall modus operandi of the conspiracy was the steps taken to ensure that there were no possible links to the individual conspirators. Here, the Crown was referring to the various covert means of communication, the use of codes, and the use of motor vehicles registered in other people's names. The Crown said that the defence case was likely to focus upon the possible existence of an innocent explanation for the purchase of chemicals and ammunition, et cetera. In the light of this evidence, the Crown was entitled to lead evidence of this particular aspect of the modus operandi of the conspiracy. The burning of the car fell precisely into such a category.

42 The Crown placed reliance on the cases to which I have referred earlier, especially Loader, Collie and Louden. The Crown accepted that the tender of circumstantial evidence of this kind would inevitably lead to the need to give careful directions to ensure that the evidence was not used in an impermissible or unintended way.

RESOLUTION OF THE ISSUES

43 The starting point is the acknowledgment on behalf of the accused that evidence of the finding of the car and its contents may be given. The defence has no objection to evidence about the timing of the finding and the location of the vehicle at the time it was found. The defence suggests that this could be led in a neutral way which omitted any reference to the burning of the vehicle.

44 The only issues relate to admissibility of the burning of the vehicle and the fact that it was found in a partially burnt out state.

45 Resolution of the issues between the parties will require three questions to be addressed. They are:

(a) Is there evidence capable of satisfying the jury that the fire was deliberately lit?

(b) Is there evidence capable of satisfying the jury that the fire, if it were deliberately lit, was occasioned at the behest of the accused?

(c) Is the evidence, in truth, evidence demonstrating consciousness of guilt? If not, is it capable of being misused by the jury in an impermissible way to reason towards the guilt of the accused? If so, will it be possible to give directions to avoid misuse of the evidence occurring?

46 The three questions are, of course, interrelated. The answers to those questions will depend upon the ambit of s 55, the dictates of ss 135 and 137 and the ultimate question as to whether the evidence is likely to carry the inevitable inference that the accused are responsible for the burning of the vehicle and, therefore, guilty of the crime with which each is charged. I have, in a series of earlier decisions, examined in detail the operation and ambit of the relevant sections of the Evidence Act and there will be no need for me to set them out in this judgment. Although the questions are interrelated, I will approach each of them, for the moment, on a separate basis.

QUESTION 1: Is there evidence capable of satisfying the jury that the fire was deliberately lit?

47 Ms Beckett submitted, as I have said, that the evidence is equivocal as to whether the burning of the vehicle was deliberate. Counsel noted a number of possible alternative hypotheses. These included that a person related to, or acting on behalf of the recent owner of the car, or someone who had driven or had an involvement with the car, may have wished to dispose of it due to the known connection of the car to the accused or to the alleged conspiracy post-arrest. Counsel suggested that in the local area, the news of the arrest "would have spread like wildfire". Another possible hypothesis was that the burning was a random act of theft and/or vandalism.

48 These observations are plainly permissible, but they do no more than highlight the fact that there is a legitimate difference of approach between the prosecution and the defence on this point. If the issue at trial were simply whether the evidence was sufficient to establish that the fire was deliberately lit, it is clear that, in terms of s 55 of the Evidence Act, the body of evidence relied upon by the Crown would be capable of bearing directly or indirectly upon a fact in issue. Indeed, although it is not a matter for me, but rather one for the jury, the evidence to suggest the deliberate lighting of the fire is quite powerful. I am unable to accept Mr Scragg's argument concerning Dr Speers. It does not seem to me that Dr Speers has expressed any opinion going beyond the expertise she has. Such opinion as she has expressed has been fully explained by her. It is expressly related to the facts stated in her report. I agree with the Crown submission, however, that the question as to whether the fire was deliberately lit is not simply to be answered, in the present matter, by reference to expert opinions. It is necessary to examine the whole of the evidence, including that of laypersons, before coming to a conclusion about the issue. This the jury would be invited to do. It would be a matter for them to decide whether the particular fact has been shown to be a valid fact. It would also be a matter for the jury to determine the weight to be attached to the evidence, although in that regard the issue as to the purpose of the tender of the evidence and the giving of directions would be very important.

QUESTION 2: Is there evidence capable of satisfying the jury that the fire, if it were deliberately lit, was occasioned at the behest of the accused?

49 Again, there are differences of approach between the Crown and the defence. Mr Waterstreet argued, for example, that it would be mere speculation for the jury to be invited to, and to in fact conclude, that the answer might be in the affirmative. I cannot agree with this submission. There is, when the whole of the Crown case is considered, a considerable body of evidence which, when taken together, would be capable of supporting an inference that the burning of the car was done deliberately and that this happened at the behest of the accused. I have examined the detailed material relied upon by the Crown, referred to earlier in this decision. It is clearly capable, when the whole Crown case is considered, of supporting the suggested Crown inference. The Crown case demonstrates, for example, that the accused, in undertaking activities said to be in furtherance of the conspiracy, displayed a high level of planning to avoid detection. This included the use of mobile telephones in false names and using false names in making enquiries about purchasing items. The subject vehicle was one of two vehicles used by the accused, registered in the name of a person other than one of them, and who had left Australia as far back as August 2005. In addition, both vehicles were located at some distance from the accused's premises. Importantly, the subject Musso contained items that were consistent with being items obtained in furtherance of the conspiracy. There were other items consistent with being used for the concealment and/or stockpiling of such items. There were also the range of activities undertaken by the accused which were, according to the Crown case, capable of being used to conceal a number of items previously obtained in furtherance of the conspiracy, for example, ammunition. The accused, in undertaking their activities, particularly in the November period, were apparently assisted by others. Finally, a number of items allegedly obtained during the course of the conspiracy, including "concealment" items, have never been found.

50 If, therefore, the only question is whether the whole of the Crown case, including the fact of the burning of the subject Musso, may be capable of sustaining an inference that the accused organised the burning of the vehicle, then clearly there is such evidence in the Crown case. The burning of the motor vehicle may, if that were the issue at trial, be seen in that light. The existence of such evidence, and its capacity to be used in the way suggested by the Crown, says nothing, however, as to a number of alternative hypothesis consistent with innocence. It says nothing as to whether such a finding should be made.

QUESTION 3: Is the evidence , in truth, evidence demonstrating consciousness of guilt? If not, is it capable of being misused by the jury in an impermissible way to reason towards the guilt of the accused? If so, will it be possible to give directions to avoid misuse of the evidence occurring?

51 As I have said, the Crown does not seek to tender the evidence as indicative of consciousness of guilt. Apart from its general relevance, the Crown will assert that the fact that the vehicle was set alight at the behest of the accused, if that be proved, is circumstantial evidence which, together with other evidence, is relevant in proof of the offence. In that particular regard, the burning of the vehicle is to be seen as part and parcel of a series of acts carried out by the accused or on their behalf to ensure that the authorities did not locate the items that had been obtained or been used in furtherance of the conspiracy. The Crown will wish to argue that there is no real distinction between the concealment/stockpiling of material prior to the arrest and the attempted destruction of the car after arrest. In the same way, the Crown will argue that there is no distinction between the concealment of false mobile phones used prior to arrest and the later attempted destruction of the car and its contents.

52 Earlier, I set out the five conditions of admissibility referred to in Cook in the decision of Simpson J. It will be convenient to set out some other passages from that decision appearing in paras 21, 24 and 25. There, her Honour said:

"21. If, by evidence or admission, it is proved that an accused person has told a lie, that is to say, made a deliberately false statement, in Court or out of Court, then, provided various conditions are fulfilled, the jury may regard the lie as demonstrating a consciousness of guilt and may treat the lie as corroboration. ... However, common sense and ordinary human experience indicate that a judgment as to whether a lie reveals a consciousness of guilt, although one which people not infrequently make, may, depending upon all the circumstances, be very difficult. People tell lies for many reasons other than a consciousness of guilt. For example, a person may tell lies to escape a false accusation, just as a person may be put to flight by the threat of unjust arrest."

53 (Here Simpson J set out the five conditions I have summarised at para 17 when outlining Ms Beckett’s arguments).

………………..
24. Two separate issues arise when the Crown tenders such evidence. The first goes to the admission of the evidence. In order to admit the evidence tendered, the trial judge must be satisfied that it is capable of meeting the five conditions outlined. If it is not so capable then the evidence is inadmissible. If, however, it is so capable, then the evidence may nevertheless be rejected pursuant to one of the discretions available to a trial judge, for example, the discretion conferred by s135 of the Evidence Act 1995, or following the exercise required by s137 of that Act. The second issue, which arises only where the evidence has been admitted, concerns the directions to be given to the jury by the judge as to the use that may be made of the evidence.
25. The principles developed in relation to evidence of lies are readily adaptable to the circumstances where the Crown tenders evidence of flight said to be indicative of a consciousness of guilt. Evidence of flight may be admitted where the jury may legitimately infer that the flight was occasioned by consciousness in the accused person of guilt - that is, of guilt of the offence with which he/she is charged."

54 (I might also add that the same principles will apply to other instances of post-offence conduct relied upon as an admission in recognition of guilt, e.g. destruction of weapons or implements used in the commission of a crime).

55 The Crown has sought to draw a distinction between evidence of post-offence conduct relied upon to show consciousness of guilt and post-offence conduct relied upon, not as an admission, but merely as part of a circumstantial case. Whether this distinction is always a valid one, and whether it can be applied to the subject evidence, may be examined and illustrated by reference to two cases in particular mentioned in argument.

56 The first of these is R v Loader, a decision of the Court of Criminal Appeal in South Australia. The Crown relied upon this case as authority for the proposition that evidence that might otherwise be relied upon as consciousness of guilt could be used in a different way in a criminal trial, namely as part of a circumstantial case in proof of the offence against the accused. Loader provides a useful illustration of the asserted distinction sought to be relied upon by the Crown.

57 The appellant, Mr Loader, had been charged with the murders of two acquaintances, Comans and Goodwin. The victims died as a result of extensive head injuries inflicted with a blunt object. Their bodies were found on the side of a dirt road on 6 December 2000. Evidence called at the trial indicated that the victims had been killed at an earlier time in a warehouse at Port Adelaide. There building had been purchased by the appellant. The appellant and the two victims were growing cannabis plants in the building at the time of the alleged murders. At trial, the appellant denied any involvement in the death of the two men. He said he had found the men dead in the warehouse and that he had buried their bodies so that the cannabis would not be discovered. After the death of the two men, the appellant engaged in a course of conduct aimed at creating a false impression that Comans and Goodwin were still alive and suggesting that he was quite unaware of their deaths. The conduct included making telephone calls from Goodwin's mobile telephone and calling Goodwin's family and asking to speak to him. The appellant admitted his actions in creating these false impressions but gave evidence that he had done so, not because he had killed the men, but because he had interfered with the crime scene and disposed of their bodies.

58 The appellant was convicted. He then appealed and the major ground of appeal related to the direction given by the trial Judge concerning the false statements the appellant had made to conceal his involvement in the disappearance of the deceased.

59 Duggan J (with whom Besanko and Anderson JJ agreed) said, in relation to the lies told by the appellant, at para 29-31:

“The lies were part of a series of actions and statements by the appellant aimed at creating the impression that the two men were still alive and distancing himself from their disappearance. The statements and actions included getting rid of Goodwin's car, ringing his telephone number, making calls from Goodwin's mobile telephone, asking for Goodwin at his home, going to the golf club to give the impression that he expected Goodwin to be there, giving Comans' name when arranging for a locksmith to change the locks at Steamers, suggesting that Goodwin might have met foul play when he was picking up some drugs and telling the police that he did not know the whereabouts of the two men.
The events after the disposal of the bodies were referred to collectively during the trial as 'the false trail evidence'. Conduct after an offence designed to create the impression that an offence has not been committed or that the accused has no connection with the offence constitutes a well known category of circumstantial evidence in criminal cases: Wills on Circumstantial Evidence (7th edition) pages 147-157.
In my view, it was appropriate for the trial Judge to invite the jury to consider these actions and statements of the appellant as part of the body of evidence from which they were entitled to draw an inference of guilt. They were actions clearly intended by the appellant to distance himself from the disappearance of the two men. The reason why he wished to distance himself in this way was a matter for the jury. However, it was open for the jury to infer that he did so because of his involvement in the murders. To the extent that lies were involved, their relevance was not restricted to mere credibility. They could be used as part of the circumstantial case to establish positive evidence of guilt.'"

60 His Honour then considered whether the directions given by the trial Judge had been inadequate. In that context, he considered the well known passage from the judgment of Dean, Dawson and Gaudron JJ in Edwards v The Queen (1993) 178 CLR 193 at 210:

“A lie can constitute an admission against interest only if it is concerned with some circumstance or event connected with the offence (that is, 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 crime. 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: see M v R (unreported, Supreme Court, Criminal Appeal, SA, No 1999 of 1993, King, Mohr and Bollen JJ, 18 August 1993) at 4-5. 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 (see, for example, Credland v Knowler (1951) 35 Cr App R 48; Tripodi v The Queen (1961) 104 CLR 1 at 10; R v Buck [1983] WAR 372 at 377; R v Preval [1984] 3 NSWLR 647 at 650-651; R v Evans (1985) 38 SASR 344 at 348-349; People v Showers (1968) 440 Pacific Reporter (2d) 939 at 942) 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) , because of “a realisation 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 realisation of guilt: see, for example, Lonergan v The Queen [1963] Tas SR 158 at 160; Broadhurst v The Queen [1964] AC 441 at 457. 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 recognised that there is a risk that, if the jury are invited to consider a lie told by an accused, they will reason that he lied simply because he is guilty unless they are appropriately instructed with respect to these matters. And in many cases where there appears to be a departure from the truth it may not be possible to say that a deliberate lie has been told. The accused may be confused. He may not recollect something which, upon his memory being jolted in cross-examination, he subsequently does recollect.”

61 Duggan J said there was no suggestion in the address of the Prosecutor or in the summing-up that the post-offence conduct could stand on its own as an implied admission of guilt. Rather, the evidence fell to be considered together with the combined force of all of the circumstances of which it formed part, (R v Dupas at (26)). Duggan J said that the task of a trial Judge in these circumstances, was to tailor a summing-up which would be appropriate to the particular circumstances of the case. Edwards' case gave a guide as to the instruction to be given to the jury, but the directions had to be tailored to the fact that this was not a case in which the prosecution was relying on a lie or conduct as indicating, by itself, an implied admission of guilt. Rather, the post-offence conduct was but part of the overall circumstantial case against the appellant.

62 In the particular case, the narrow issue before the jury was whether the reason or purpose for the conduct was, as the appellant said in his evidence, to distance himself from the incident because of the predicament of finding the bodies in the warehouse where cannabis had been cultivated. Or was it, on the other hand, conduct whose ultimate purpose reflected a need to distance himself from the incident because he had committed the murders? At paras 38 to 41 Duggan J said:

“The trial Judge instructed the jury that, before they drew any inference unfavourable to the appellant from the post-offence conduct, they would have to be satisfied of that inference beyond reasonable doubt and that they were not to draw such an inference if there were some other explanation consistent with innocence which had not been excluded beyond reasonable doubt...
In the light of these directions, it is my view that it would have been unnecessary and confusing to add a further direction on consciousness of guilt of the type referred to in Edwards' case...the jury were told not to infer guilt from the simple telling of a lie. There was no need to refer to the fact that there could have been a number of reasons for the telling of a lie apart from the realisation of guilt. In this case the appellant had advanced specific reasons for telling the lies and it was not essential to refer in a general way to the fact that people might lie for all sorts of reasons.
It was implicit in the directions that the jury would have to find that the lies and conduct took place and that they were deliberate. In any event, these aspects were conceded by the appellant...in the circumstances, the trial Judge was able to give a direction which was more specific than is often the case with an Edwards' direction. The appellant admitted the post-offence conduct but gave a reason for it which was consistent with his innocence on the charge of murder. The circumstantial evidence direction ensured that the appellant's explanation was before the jury and it was made clear that the post-offence conduct could not be used against the appellant unless that explanation was excluded beyond reasonable doubt."

63 R v Chang, by way of contrast, is a case where the Crown's attempt to use post-offence conduct otherwise than as evidence of consciousness of guilt failed. (This case had been referred to by Duggan J in Loader at para 47. It had been distinguished by his Honour on the basis that, in the earlier case, the Prosecutor's opening and closing addresses suggested, in fact, that the prosecution was relying on the post-offence conduct as evidence of guilt.)

64 In Chang, the accused was charged with the murder of a young woman Diane Psaila. The Crown evidence against the appellant included evidence of lies, evidence of flight, an assault on a policeman, the concealment of the body of the deceased and the preparation of a grave. It also involved the laying of a complex false trail. The deceased's body was ultimately found in the boot of a car which was near a location where the appellant had apparently been preparing a grave for her burial.

65 It seems that, for whatever reason, trial counsel and the trial Judge were reluctant to use the phrase "consciousness of guilt" before the jury. In the ultimate, the trial Judge ruled, ultimately with the agreement of counsel, that only two specific lies demonstrated consciousness of guilt. The trial Judge gave an Edwards' type direction in relation to these lies. The other "post-offence conduct" attributed to the appellant was sought to be treated as “circumstantial evidence in proof of the charge”. It was not disputed at the trial that the applicant was responsible for some blow or some action which led to the death of the victim, but the principal defences included self-defence and lack of intent.

66 At para 5 Ormiston JA (who agreed with Charles JA) said:

“Whatever be the appropriate description of this evidence, the need for some warning as to misuse of evidence of this kind arises whenever the purpose of its tender is to establish the guilt of the accused, where it can be said that lies or conduct such as flight of itself may lead the jury to the conclusion that the accused is guilty, or more precisely, that the accused had a guilty mind at the time the facts and circumstances making up the elements of offence took place. Although a Prosecutor's failure to use the conventional expression 'consciousness of guilt' may serve to take some of the sting out of its case, the need for appropriate direction cannot be averted merely by giving it a less colourful description. If the evidence and its use by the prosecution is intended to show that such lies or other acts could not have been perpetrated unless the accused was implicitly admitting his or her guilt, then the need for the warning remains. If a lesser use of that evidence by the jury is intended and sought by the prosecution, then the absence of a warning will ordinarily cause no harm."

67 Both Ormiston JA and Charles JA held that in the particular circumstances of the trial the Crown had persisted in using the appellant's conduct in seeking to dispose of the victim's body and in deflecting attention from himself as proof of his guilty mind, and that he had intended the murder of his victim. These things, it had been argued before the jury, were inconsistent with what had been suggested as an innocent explanation for the events that took place. Apart from the two specific lies, however, no direction was given in relation to the other lies and the post-offence conduct generally.

68 At 43, dealing generally with the post-offence conduct, Charles JA said:

“All of this taken together, in my view, amounted to a continuing course of activity which the jury would have been entitled to regard as evidence in the strongest possible terms of the applicant's consciousness of his guilt of murder. The ruling of the trial Judge at the outset prevented the Prosecutor putting to the jury any of the applicant's post-offence conduct or lies, other than the 'significant lie'. This, in my view, confined the prosecution case on this issue quite unduly."

69 Charles JA continued:

“...I can see no reason why the prosecution should not have been permitted to rely on the applicant's post-offence conduct and lies as consciousness of guilt in the way proposed at the outset of the trial by the Prosecutor. But, relevantly, to the appellant's argument the consequence of the Judge so confining the prosecution case was that the jury were given a full and proper Edwards' direction only in respect of the significant lie, and were thoroughly warned that this lie may have been told for a variety of other reasons, such as panic. The jury was, however, given no such warning when they came to consider the remainder of the applicant's post-offence conduct."

70 On the issue of the directions which had been given, Charles JA said at para 46:

“A jury will indeed usually be expected to follow faithfully the directions of a trial Judge. But, with respect, it would in the present case have been no easy matter. Virtually all the Crown case was based on the accused's post-offence lies and conduct. It seems to me that his behaviour was likely to have been viewed by the jury as shouting his guilt to the four winds...the jury had, therefore, been told just before lunch that they were not entitled to use the accused's 'conduct' as evidence of consciousness of guilt, but immediately afterwards, that it was entitled to take all of this evidence into account as part of the Crown circumstantial case.
……………………….
The director's argument in this Court was that the circumstantial case was merely to be used to demolish the false version given by the accused in his interviews with the police, and not as consciousness of guilt. But this is not, I think, how the matter was put to the jury either by the Prosecutor or the Judge, and I very much doubt the jury would in any case have understood the difference. In my view, although the Prosecutor did not actually use the words 'consciousness of guilt', both his opening and closing addresses would have left the jury in no doubt that the prosecution was relying on the accused's post-offence conduct and lies to show that his awareness of his guilt directed his actions."

71 Charles JA considered that a full Edwards' direction should have been given in relation to both the alleged lies and the applicant's post-offence conduct generally. The Court set aside the verdict and ordered a new trial.

72 It will be seen, after careful examination, that the distinction between conduct relied upon to show consciousness of guilt and post-offence conduct relied upon merely as part of a circumstantial case is not an easy one to draw. The first enquiry appears to be whether the evidence would be capable of proving guilt by itself, that is as an admission of the offence charged. Minds can differ about this as the two cases demonstrate. The Court of Criminal Appeal in South Australia clearly thought that the post-offence conduct by Mr Loader would not have proved guilt by itself. It was, however, capable of proving guilt when taken together with other circumstantial material. Notwithstanding this view of the evidence, the Court of Criminal Appeal approved the decision of the trial Judge to give a direction requiring that the post-offence conduct, if it were to be relied upon to support an inference against the accused, should support that inference and no other beyond reasonable doubt. Consequently, it seems probable that the Appeal Court’s view was that the post-offence conduct was not mere circumstantial evidence but fell into a category that required it to be proved beyond reasonable doubt. Secondly, it might be observed that the Victorian Appeal Court considered that Mr Chang’s post-offence conduct would have been viewed by the jury as “shouting his guilt to four winds” even though the trial Judge had explained that it was merely circumstantial evidence. The problem was further compounded in Chang because two specific lies were selected as being worthy of an Edward’s type direction. The remaining post-offence conduct simply fell for evaluation as part of the circumstantial case.

73 In these circumstances, it seems to me that the distinction suggested by the Crown is by no means a clear one. Minds can legitimately differ as to whether conduct is capable, if accepted, of proving guilt. Whether the distinction may be properly recognised in any particular trial will depend upon the facts and circumstances arising in the trial itself. It will also depend, to a large degree, upon the level of agreement between prosecution and defence as to how a particular piece of evidence should be used. Importantly, it will depend upon the prosecution and defence adhering to any such agreement. Finally, it will also depend to a very large extent on the nature of the directions given by the trial Judge.

74 It will be apparent, from an examination of the directions in Loader's case, that the trial Judge gave a modified but focused Edward’s type direction. It was permissible in that case because of the particular issue that had arisen, having regard to the nature of the post-offence conduct and the explanations given by the defendant in evidence. Had the direction been any less focused, it is perhaps likely that the Court of Criminal Appeal would have found error. A suitable way in which post-offence conduct may be presented is succinctly stated by Winneke P in R v Dupas. The passage appears at page 18 in the following terms: -

“For my own part I cannot accept that submission. It seems to me to be over-technical and removed from the circumstances of the trial, the issues being fought, and the nature and purpose of the evidence is respect of which the impugned directions were given. The circumstances in which the trial judge, in the interests of fairness, should give a direction in accordance with Edwards v R . (supra) cannot be confined within, or prescribed by, rigid formulae. Whether such a direction should be given – and in what form – will depend upon a number of factors including the nature of the evidence which is said to require such a direction, the purpose for which it is tendered and the use which the Crown is making of it. In a case such as this one, where the Crown was seeking to establish the applicant’s involvement in the crime through the combined force of a series of circumstances which, in the Crown submission, excluded any hypothesis reasonably consistent with innocence, it will not often be the case that any one particular evidential circumstance will, by itself, amount to an implied admission of guilt by the accused of the crime with which he is charged. Whether the evidential circumstance comprises a statement made to the police or some other conduct of the accused, its probative strength will ultimately depend upon the combined force of all the circumstances of which it forms part.”

75 It is now necessary to examine the situation in the light of the evidence sought to be tendered by the Crown in the present matter. There is a dispute between the Crown and the defence as to whether the evidence of the burning of the car should be regarded as evidence of consciousness of guilt. The defence position is that it might be so regarded by the jury, even if it were simply left on the basis of being circumstantial evidence led in proof of the Crown case. The significant point to note is that there is no agreement between the Crown and the defence as to how the evidence should be used.

76 The first enquiry is to categorise the evidence. Is it evidence demonstrating consciousness of guilt? It is difficult to resolve this difference between the parties. That is because the issue arises before a shred of evidence has been led in the trial, and before there is any precise identification of the defence case. The issues for trial have, at this stage, not been precisely identified. I think that I can assume, however, that the defence case will, in part, suggest that the Crown’s circumstantial case is based on a theory which assumes that all the actions of the accused should be viewed in a guilty light. The defence case is likely to be that many of these matters do not reflect a criminal intent nor do they show the execution of a criminal plan. The defence case will be, I imagine, that the agreement alleged by the Crown in the indictment has not been proved beyond reasonable doubt. I rather suspect, although it is pure guesswork or speculation on my part, that it is unlikely the accused will give evidence in the trial. What is clear is that it is highly unlikely that any of the accused will give evidence explaining the burning of the motor vehicle. This is because the accused steadfastly maintain they had nothing whatever to do with the burning of the car and can offer no concrete suggestion as to how it might have occurred. I should add that, in attempting to resolve this difference between the parties, I am assuming, for the sake of argument, that the jury will have found that the accused were in fact involved in some way in the burning of the motor vehicle.

77 Making those assumptions, and notwithstanding the difficulties I feel having regard to the uncertainties involved in identifying the defence case at this stage, I would incline to the view that the evidence is more properly described as “consciousness of guilt” evidence. The Crown asked me to view it as falling within the same category as the concealment or destruction of telephones in false names, and to view it in the same way as the concealment of items allegedly acquired in furtherance of the conspiracy. But I think there is a marked difference. The incidents to which the Crown made reference were incidents, assuming they happened, that were manifested during the duration of the conspiracy. After 8 November 2005, the conspirators (with the exception of Jamal) were arrested and remained in custody. This fact alone casts rather a different light on the burning of the car.

78 What did it represent? I would consider that a jury would find it difficult to view it in any other way than as the destruction of the motor vehicle which had been used for the purposes of the conspiracy, the destruction of other items acquired in furtherance of the conspiracy, and the destruction of implements used to conceal items acquired in furtherance of the conspiracy. The burning of the vehicle and its contents would be likely to be seen as something of a desperate measure to destroy important incriminating evidence after the “game” was over. I consider it highly likely that a jury, no matter how carefully instructed, would see this evidence as the virtual nail in the accuseds’ respective coffins. Their arrest spelt the end of the conspiracy and that fact carried with it the need to destroy evidence that would plainly incriminate them at trial. The fact that it was necessary, as the Crown case must suggest, to engage other persons outside the conspiracy to burn the vehicle would be regarded by the jury as itself a measure of the desperation shown by this group of guilty conspirators. It would point unequivocally to a collective guilty mind. The burning of the car would not necessarily “shout guilt to the four winds” but it would certainly involve a mighty exhalation.

79 The second enquiry is as to whether evidence that possesses the characteristic of consciousness of guilt should be left to the jury as mere evidence of a circumstantial nature in proof of the Crown case. It seems from Loader’s case and Dupas’ case that it may be left in this way, provided proper directions are given. As Loader’s case demonstrates, this may well require an Edward’s type direction and it may require proof beyond reasonable doubt of the post-offence conduct. I must confess to having a degree of unease in the present trial of adopting the techniques used in Loader, and, for that matter, in Collie, although the conduct in the latter case was not as incriminating as the two cases I have examined in detail. I accept, however, that, in theory, an appropriate set of directions could be moulded to meet the exigencies of the situation.

80 There is, however, a fundamental problem in taking this approach in the present matter. In all the cases I have examined, there was no doubt that the post-offence conduct was carried out by the accused. Mr Loader, for example, told a series of lies and engaged in the laying of a false trail to suggest that the deceased had not died, and that, if they had, he did not know about it. Mr Chang engaged in lies and bizarre behaviour following the death of his victim. However, he attributed this at trial to the fear and panic he felt arising out of an accidental death, or one that occurred as a consequence of self-defence. In Dupas’ case, the defendant had told lies and had attempted to destroy material which would have demonstrated his knowledge of and acquaintance with the deceased. Finally, in R v Louden (1995) 37 NSWLR 683, two of the co-conspirators had an intercepted conversation in which, having been alerted to the presence of the police, they discussed burning down the premises in which they were then “cooking” drugs. (I put this case in a special category, however, because of the added complication that it involved the application of the co-conspirators rule).

81 In other words, in all the cases in which evidence pointing to the consciousness of guilt is left to the jury (whether as an admission or simply as circumstantial material in proof of the offence) the conduct has been unequivocally that of the accused person. The position here is markedly different. As I have said, there is evidence capable of satisfying the jury that, if the fire were deliberately lit, it was done so at the behest of the accused. It is obvious, however, that there are a number of other realistic possibilities consistent with the fire being lit by persons who had nothing to do with the accused at all. How then would the jury go about the task of satisfying itself as to this preliminary point, namely the determination as to whether the conduct had been organised by the accused? The answer to that question appears clearly enough: the jury would have to consider the whole of the Crown case, not merely those matters I have highlighted, in order to determine whether the fire was organised by the accused. To reach this conclusion, the jury would, in effect, have to conclude that the accused were guilty of the crime charged. The reasoning would inevitably be that the fire was organised by the accused because, based on the whole of the Crown case, they were guilty of the offence charged. Once that had been decided, the jury would then be directed to examine the burning of the car and its contents as a further circumstance in the Crown case “in proof of the offence”.

82 It will be seen that reasoning of this kind could fairly be described as entirely circular. What direction could be given to prevent this type of circular reasoning being adopted? I must say that I cannot presently conceive of directions which could be given in such a situation that would do other than enforce the circularity of the reasoning process necessary to arrive at the result suggested by the Crown argument. In fact, this would be so whether the evidence was led as consciousness of guilt or whether it was simply led as circumstantial evidence in proof of the Crown case. In either situation, it seems to me the jury would need to conclude that the accused were guilty of the offence charged before they could go to consider the force of the evidence relating to the burning of the car. If they were already satisfied about guilt, however, the final step in the process would be entirely redundant and, as I have said, would involve a degree of circular reasoning. In addition to that, the focus on the question whether the whole of the Crown case did or did not show that the accused organised the burning is not the critical factor in issue in the trial. To focus directions on that point would be to run the risk of diverting the jury’s attention from the central issue it has to determine.

83 A further consideration, as I have said, relates to the further point as Ms Beckett argued. This was that there would be no real opportunity for the accused to give evidence about the burning of the vehicle since they simply denied that it had anything to do with them at all. Finally, unlike other cases, it does not seem to me that the post-arrest “conduct” of allegedly burning the vehicle could be used as a pre-emptive tactic by the Crown to rebut the possibility of an innocent explanation likely to be given by the accused at trial in relation to the subject. The defence is unlikely to adopt a situation where an explanation will be given by any of the accused in relation to the burning of the vehicle.

84 In all these circumstances, I have come to the conclusion that I ought to exclude from the trial evidence of the burning of the vehicle. It may be, however, the Crown can present, by agreement, a sanitised version of the fact that the vehicle was located in a burnt out state. An agreed statement to this effect could, without prejudice to the defence position, note that the burnt out vehicle was immediately drawn to the attention of authorities and was then forensically examined. Such a statement could make it clear to the jury that no suggestion was being made that any of the evidence should be used to inculpate the accused in the burning of the vehicle and that the cause of that fire was simply not known. In turn, such a statement could be reinforced by directions from the trial Judge to ensure that the jury did not speculate about the cause of the fire or its circumstances in any way detrimental to the accused. I do no more than offer this as a suggestion. I will leave it to the parties to let me know whether the suggestion has any value.

85 The order I make is that evidence of the burning of Musso FDT 113 on 10 November 2005 be excluded from the trial.

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