Regina v Taylor

[1999] NSWCCA 309

CITATION:	Regina v Taylor [1999] NSWCCA 309
FILE NUMBER(S):	CCA 60171/99
HEARING DATE(S):	Monday 27 September 1999
JUDGMENT DATE:	27 September 1999
PARTIES :	Regina v Stephen John Taylor
JUDGMENT OF:	Grove J at 1; Sully J at 20; Greg James J at 21

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/11/0487
LOWER COURT JUDICIAL OFFICER:	Viney DCJ

COUNSEL:	M.M. Cunneen (Crown) P. Kintominas (Applicant)
SOLICITORS:	S.E. O'Connor (Crown)
CATCHWORDS:	Criminal Law and Procedure - Claim By Appellant To Have Lied To Investigators - Crown Case That He Told The Truth - Adequacy Of Directions To Jury
CASES CITED:	R v Preval 1984 3 NSWLR 647
DECISION:	Appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL

60171/99

GROVE J
SULLY J
GREG JAMES J

Monday 27 September 1999

REGINA v STEPHEN JOHN TAYLOR

JUDGMENT

1 GROVE J: This is an appeal against conviction after trial before Viney DCJ and a jury at Sydney District Court. The appellant was convicted of supplying a trafficable quantity of a prohibited drug, namely cannabis leaf weighing approximately 3.15 kilos. The deeming provisions of the Drug Misuse and Trafficking Act 1985 operate to make the appellant liable for supply when in possession of such a quantity.

2    The appellant arrived in Sydney on a flight from Adelaide on 5 February 1998. A "sniffer" dog had drawn attention to a particular suitcase and the appellant was observed to collect it from the luggage carousel. Upon leaving the terminal he was detained by police officers and taken to an office where he was asked to open the suitcase. The activity was filmed on video tape.

3    On opening the bag the appellant noticed some newspapers and he thereon claimed that the luggage piece had been the subject of tampering in that he was aware that its contents should have been just two quilts and two pillows. These items had been taken by him to Adelaide on a previous trip when relatives had gathered for his mother's funeral.

4    Upon the luggage being opened, three cream coloured PVC pipes were located at the bottom of the bag which contained the drug abovementioned.

5    Part of the conversation between Constable Salter, who was operating the video tape, and the appellant consisted of her asking: "Sir, who packed the bag today?" and the appellant replying: "I packed the bag yesterday".

6    At trial the appellant gave evidence that he had collected the bag from his sister who was the occupant of their mother's former home. Because he was visiting a friend at a different location, he had arranged by telephone for his sister to leave the bag for him, already packed, on the front porch. His sister gave evidence confirming the arrangement and its being carried out. It was suggested that a de facto partner of his sister may have been responsible for placing the drug in the luggage. There was considerable animosity between him and the appellant.

7    The appellant testified that he did make the reply to Constable Salter's question above recited but asserted that he had told her a lie. He explained that his reason for this was that police had told him of their suspicion concerning the presence of illegal drugs and he became worried that his sister may become implicated in some way unless he assumed responsibility for packing the bag. He did not consider his sister was likely to be implicated but suspected her partner might have been.

8    The appellant relies upon a single ground of appeal, namely, that "the trial judge failed to properly instruct the jury on the issue of lies". It was argued in the appeal that his Honour erred in failing to give the jury an authoritative reminder that innocent people sometimes panic and tell lies to protect themselves or others when unexpectedly confronted by police and, second, to admonish the jury that they ought not infer a consciousness of guilt from the mere fact that the appellant had told lies to police.

9    Despite a submission at trial which I will mention later, it was not part of the Crown case to rely upon the telling of a lie by the appellant as manifesting a consciousness of guilt. It was the appellant's case that he had lied to Constable Salter when he told her that he had packed the suitcase and the truth was that he had not.

10    In charging the jury his Honour was faced with the situation that, as a matter or logic, it was plain that either the appellant (as he claimed) had lied to police at the airport when he said he had packed the bag and was truthful in his evidence or, he had been truthful when he spoke to police and therefore was not telling the truth in his evidence. Of course, when a jury convicts an accused who has testified in denial of a Crown case, there is an inevitable implication that the denial was a lie.

11    The necessity for trial judges to exercise particular care concerning directions to juries about reliance upon the telling of lies as evidencing a consciousness of guilt or in corroboration of other Crown evidence is a topic which has been frequently canvassed in this Court. The situation that arose in this case when the appellant claimed to lie was relatively uncommon and his Honour was alert to invite counsel to make any relevant submission concerning the situation. He raised with counsel specifically the inappropriateness of the usual direction about lies being told because of consciousness of guilt.

12    His Honour mentioned the logical situation that if what was said to Constable Salter was not a lie then it appeared to be an admission of packing the bag. Counsel appearing for the appellant at trial (who did not appear in the appeal) made this contribution:

"It's difficult, your Honour. I respectfully submit, however, your Honour, I don't think that it could be construed as an admission and I would ask your Honour not to deal with it that way."

His Honour did not include an invitation to the jury to consider what was said as an admission.

13    The Crown Prosecutor had submitted that "It certainly goes to consciousness of guilt the fact that he said those words". Fortunately, if I may respectfully say, his Honour did not act upon the Crown Prosecutor's submission.

14    Counsel for the Crown on the appeal (who did not prosecute at trial) extracted from the transcript of the summing up a series of cautions which the learned trial judge did give. These included an express warning that even if the jury did not believe the version of the accused it did not automatically mean that he was guilty; a warning that the jury needed to be convinced beyond reasonable doubt of the facts upon which the Crown relied; a direction that even if they were convinced of all those facts it was necessary to consider whether there might not be some sort of innocent explanation or a reasonably possible alternative explanation other than that the accused was guilty and, in a passage immediately following the raising of the matter of directions about lies (which, of course, occurred in the absence of the jury) a direction that the jury would have to reject entirely the explanation of the appellant and reject the possibility that someone other than him was responsible for the drugs being in the suitcase before they could convict.

15    Later in the summary of the respective arguments the learned trial judge repeated submissions of counsel that the intent to avoid implicating his sister was, as the appellant claimed, a reasonable explanation for telling the lie and that it was something he had said spontaneously seeking to avoid possibly implicating her.

16    As I have stated in this case the telling of a lie was not relied upon by the Crown as manifesting a consciousness of guilt, nevertheless his Honour made it clear to the jury that they could not infer guilt from disbelief of the appellant. As his Honour observed, this was not a case which lent itself to the commonly given direction concerning the use of lies. His obligation was to ensure that the jury properly understood the available and permissible significance of any lie told in the case in hand: R v Preval (1984) 3 NSWLR 647. In my opinion his Honour fulfilled his duty.

17    As is perceptible from the circumstances that I have mentioned concerning the invitation by his Honour to counsel at trial, leave is required pursuant to r4 to argue the proposed ground of appeal. In my view the ground is, in any event, unsubstantiated and it matters not whether as a matter of formality leave is refused or the appeal is simply dismissed.

18    The appellant was sentenced to a total term of 27 months imprisonment divided into minimum and additional terms of 9 and 18 months respectively. No application for leave to appeal against sentence has been advanced.

19    I propose the appeal be dismissed and the conviction and sentence confirmed. We have been informed that the appellant has been released to bail pending the appeal and will be returned to custody but, for the removal of any doubt, it should be specified having regard to provisions in the Sentencing Act that any time spent since conviction is to count.

20    SULLY J: I entirely agree.

21    GREG JAMES J: As do I.

22    GROVE J: The orders of the Court therefore will be as I propose. The appellant will need to surrender to custody.

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