Singh v The State of Western Australia - [2012] WASCA 262

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: SINGH -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 262

CORAM: McLURE P
PULLIN JA
MAZZA JA

HEARD: 15 NOVEMBER 2012

DELIVERED : 11 DECEMBER 2012

FILE NO/S: CACR 78 of 2012

BETWEEN: AMRIT PAL SINGH
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :BRADDOCK DCJ
File No  :IND 901 of 2011

Catchwords:

Criminal law - Appeal against conviction - Whether Zoneff direction should have been given - Whether direction necessary concerning the accused's exercise of his right to silence in the police interview when disclosed by the prosecutor

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr S Vandongen SC
Respondent: Mr J C Whalley

Solicitors:

Appellant: Shadgett Legal
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1
Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193
Petty v The Queen [1991] HCA 34; (1991) 173 CLR 95
R v Tripodi [1961] VR 186
Zoneff v The Queen [2000] HCA 28; (2000) 200 CLR 234

McLURE P: I agree with Pullin JA that the appeal should be dismissed. These are my reasons for that conclusion.
The appellant and G were charged on the same indictment. The appellant was charged and convicted of one count of sexual penetration of the complainant, a 24‑year‑old married woman. G was charged and acquitted of two counts of sexual penetration of the same complainant.
The appellant appeals against his conviction on the ground that the trial judge failed to give a lies direction in accordance with Zoneff v The Queen (2000) 200 CLR 234 and failed to direct the jury that they were not to draw any adverse inference against the appellant arising from his exercise of the right to silence in a police interview. The alleged lie relates to the making and content of a telephone call from the appellant to G.

The need for a lies direction

The law on this subject is easy to state but can occasion practical difficulty in its application. The principles are not in dispute. If an offender's lie can be used as indicating a consciousness of guilt, the trial judge must give a direction in accordance with the decision of the High Court in Edwards v The Queen (1993) 178 CLR 193.
An Edwards direction should not be given if a lie is not in fact capable of indicating a consciousness of guilt: Zoneff [16]‑ [20].
However, it can be difficult to distinguish between lies indicating consciousness of guilt and the other category of lies, being lies going to credibility: Zoneff [15].
If there is a serious risk that the jury might use credibility lies as evidence of guilt, the jury should be given a Zoneff warning, which is to the effect that it should not follow a process of reasoning to the effect that just because a person is shown to have told a lie about something, that is evidence of guilt: Zoneff [23].
There is nothing in the prosecutor's cross‑examination of the appellant or in the trial judge's summing up to suggest that the lie in question indicated a consciousness of guilt. The appellant's position at the hearing of the appeal was that the lie was not capable of indicating a consciousness of guilt but that there was a serious risk the jury would rely on it as evidence of guilt as a result of statements made in the prosecutor's address to the jury.
The merit of this proposition cannot be assessed without some understanding of the detail of the State and defence cases. We are not assisted in that regard by the summing up or the written submissions of the appellant or the respondent in this appeal. We were told to read the prosecutor's closing address. I have done so.
There is much undisputed evidence based on GPS data, motor vehicle logs and telephone records. Both the appellant and G were taxi drivers of Indian origin. The complainant, after having been refused entry to a nightclub in Leederville, hailed a taxi to take her to her home in Hilton. She had been drinking (champagne) for many hours. The taxi that picked her up was being driven by the appellant. He drove the complainant to a car park in the southern suburbs in the general vicinity of Murdoch University (the car park). During the journey, the appellant participated from time to time in a conference telephone call with G and another. They spoke in Punjabi. DNA evidence established, and the appellant admitted, that he had sexual relations with the complainant on a number of occasions before dropping her off at her home.
G, after dropping off a fare in the northern suburbs drove his empty taxi to the car park. The objective evidence established the following:
-the conference call involving the appellant and G and another went from 9.43 pm to 10:18:58 pm (35 minutes and 23 seconds);
-the appellant and the complainant arrived in the car park at 10.20 pm;
-G telephoned the appellant at 10.21 pm, the call terminating at 10:24:55 pm (3 minutes and 53 seconds);
-G telephoned the appellant again at 10.25 pm, the call terminating at 10:29:41 pm (a call lasting 4 minutes and 8 seconds);
-G arrived in the car park at 10:30:24 pm;
-the appellant telephoned G at 10:30:47 pm, the call lasting 1 second;
-there was no activity registered in G's taxi from 10.30 pm to 10:35:21 pm;
-activity in G's taxi was registered from 10.35 pm to 10.41 pm;
-G's taxi ignition was turned on at 10:59:56 pm.
The State case was that the complainant was so intoxicated as to be incapable of consenting to sexual penetration; that the appellant took advantage of the complainant's state to have non‑consensual intercourse and that G's purpose in coming to the car park was to do the same. On the State case, the complainant did not know or have any memory of the fact that she had been sexually penetrated by the appellant until after receiving the results of DNA testing. However, the complainant did have a memory of someone other than the appellant, who broadly matched G's description, sexually assaulting her in the back seat of the appellant's taxi. There was no DNA evidence implicating G in the offending.
Both the appellant and G gave evidence at trial. Their evidence as to what transpired at the relevant times was consistent. In broad terms, the appellant's evidence was to the following effect. After being picked up in Leederville, the complainant throughout the journey engaged in conversation with the appellant, propositioned him for sex and directed him to the car park; on route to the car park the complainant asked for water; the appellant had none and requested that G, who always carried an esky in his vehicle, come to the car park to provide water; after the appellant and the complainant arrived at the car park they got out of the car with the intention of going into the bushes to have sex; before heading to the bushes, the appellant rang G who had not arrived in the car park to tell him to wait in the car park until he returned. The appellant's evidence of his phone call to G was that he asked him where he was and was told 'less than one minute' or something like that to which the appellant said 'Okay. And don't go anywhere, wait for me' (ts 758, 838).
It was put to the appellant in cross‑examination that his evidence was a litany of lies and that he had colluded with G to create a story which advanced both defences. Putting to one side the prosecutor's reliance on the inherent improbabilities of much of the defence case, there was only one aspect of the appellant's (and G's evidence) which was directly contradicted by the unchallenged objective evidence. The appellant's evidence of his phone call to G after arriving at the car park was contradicted by the telephone record, which showed that there was a connection for one second, and the fact that G had already arrived in the car park when that call was made.
The prosecutor made much of this in closing. First she referred to the defence cases as follows:
Because each accused, ladies and gentlemen, suggest that after [the appellant] arrived in the car park a phone call was made from [the appellant] to [G]. And the whole purpose of that was so that [the appellant] could find out how far away [G] was and to tell him to wait. They say, of course, that this is because [the appellant] and [the complainant] were about to dash off into the bushes for sex.
…
The State says what the accused didn't do was compare the stories that they were going to give with the telephone records and they've been caught out in a significant lie.
After observing that the State did not have to prove exactly why the call at 10:30:47 pm had been made, the prosecutor continued:
The relevance of it is that it shows that these men lied to you. And they lied for a specific purpose. They made this call up, the State says, because they wanted you to believe [G] knew that [the appellant] would not be in the car park when he got there.
They wanted you to believe and to think that this was consistent with their version that [the appellant] and [the complainant] were about to go off into the bushes for sex. And they wanted you to think that is why, when [G] said that he was coming to the car park to give water, he didn't leave. That is because, of course, that call was telling him to wait.
They made up this story, ladies and gentlemen, about sex in the bushes and [the appellant] not being in the car park when [G] arrived because if you were to know that [the appellant] was in the car park ‑ if he actually was there when [G] arrived as the State says he was ‑ the story of the whole purpose for [G] being there to give him a drink falls apart. Because if that was the purpose for [G] being there and if [the appellant] were in the car park when [G] arrived the water would have been exchanged and [G] would go about these great job opportunities in Canning Vale that he says he was heading in that direction to obtain.
[The appellant] was in the car park, ladies and gentlemen, when this call was made and [G] was there and this whole story, the State says, about sex in the bushes is a complete fabrication and probably a little more elaborate so that you would think, well, she can't be stumbling but if she's walking off into the bushes she's completely ‑ has the capacity not only to walk and talk but to engage in sex (ts 6 ‑ 7).
Whilst it is correct to say that the issue at trial was whether the complainant consented to the sexual conduct (and whether the appellant had an honest and reasonable but mistaken belief that she consented) the real issue is whether, due to the degree of her intoxication, she was capable of giving consent. The degree of intoxication sufficient to deprive a person of capacity would also be relevant to the mistake defence.
The alleged lie is that the appellant did not ring G and ask him how far away he was from the car park and to tell G to wait for him. The State relied on the objective evidence for a number of purposes, including the stated purpose of falsifying the appellant's evidence that the complainant had the capacity to walk, talk and give consent to sex.
Looked at in isolation, that might be regarded as an invitation to the jury to rely on the lie as evidence of the appellant's guilt. However, any such risk is nullified by the broader context in which the submission was made. The prosecutor spent the first part of her closing address (over 36 minutes) talking about the defence cases being, in a global way, utterly untruthful and then descended into detail, all put in the context of the jury's task of assessing the accuseds' credibility. She ended her submissions on the defence cases with the statement:
Given those matters, ladies and gentlemen, and I'm not going say much more about the credibility of the defence, the State says you ought comfortably reject the evidence of [G] and [the appellant]. As I say, if you do that, then the next step is to assess the State evidence and assess whether or not you accept beyond a reasonable doubt on that evidence [that the offences were committed] (ts 14 ‑ 15).
None of the State evidence to which she referred involved any alleged lies told by the accused. Indeed, she expressly told the jury that if it accepted that the evidence of the accused was fabricated, they should put that evidence to one side and consider the State evidence (ts 41). She also made the same point at the commencement of her closing address (ts 2) as did the trial judge in her summing up (ts 1118).
Even if, contrary to my view, the risk was not nullified, this ground must fail. At no stage did the appellant's trial counsel seek a Zoneff direction. There was an objective, rational, forensic reason for not doing so. For obvious reasons, the appellant's trial counsel in his closing address largely avoided the subject of the appellant's credibility. No attempt was made to explain away the appellant's lies, the strategy being to minimise reference to them. The focus of the closing was on the credibility of the complainant. A Zoneff direction by the trial judge in her summing up would have reminded the jury of the swingeing attack on the appellant's credibility.
When no redirection concerning evidence is sought at a criminal trial, the appellant can only rely on a failure to direct the jury on the evidence if he or she establishes that the failure constituted a miscarriage of justice: Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1

[38]. No miscarriage of justice will have occurred unless the appellant establishes, first, that the direction should have been given and, secondly, that it is reasonably possible that the failure to give the direction may have affected the verdict [38]. Even if the direction should have been given, I am not persuaded that it is reasonably possible that the failure to give it may have affected the verdict. I would dismiss ground 1.

Right to silence

I agree with Pullin JA for the reasons he gives that ground 2 should also be dismissed.
PULLIN JA: The appellant, a taxi driver, was charged on an indictment that on 5 February 2011 he committed the crime of sexual penetration without consent. Another taxi driver was charged on the same indictment with two counts of sexual penetration on the same female victim. Both pleaded not guilty. The co‑accused was acquitted. The appellant was convicted by the unanimous verdict of a jury. This is an appeal against his conviction.
The victim went to a 'hens' night' with some friends at a private house. Later they decided to go to a nightclub. They waited in line outside the nightclub. The victim had consumed a considerable amount of alcohol during the evening and she was extremely intoxicated. The victim was refused entry into the nightclub as a result. She then took a taxi home. The taxi was driven by the appellant.
Instead of taking the victim directly home, the appellant drove her to a car park where he had sexual intercourse with her. The prosecution alleged that the victim did not consent because she did not have the capacity to give consent due to her degree of intoxication. The allegation was that she was either unconscious or asleep, or at best semi‑conscious at the time the act occurred.
At trial the appellant admitted that he did have sexual intercourse with the victim. However, he gave evidence that the victim had initiated the sexual activity and that she had consented to sexual intercourse taking place. In the alternative, the appellant's case was that he had an honest and reasonable, but mistaken belief that the victim consented.
There are two grounds of appeal which read:
1.A miscarriage of justice was occasioned by the failure of the trial judge to give the jury directions to ensure that if they found that the

appellant had lied in his evidence at trial that they did not use those lies as evidence of the appellant's guilt.
2.A miscarriage of justice was occasioned by the failure of the learned trial judge to give the jury directions to ensure that they did not draw any adverse inference against the appellant on account of him exercising his right of silence during his interview with the police.

Ground 1

During cross‑examination of the appellant the prosecuting counsel accused the appellant of lying. During the prosecutor's closing address, reference was made to lies which the prosecutor said that the appellant had told during his evidence. It was not expressly part of the prosecution case that the appellant had told lies out of consciousness of guilt.
However, according to the appellant's written submissions, the comments made by the prosecutor in the closing address tended to suggest that some of the alleged lies were told out of consciousness of guilt. The submission was that there was a risk that the jury might have erroneously applied a process of reasoning that involved the use of lies as evidence of guilt and that, as a consequence, they failed to properly understand the significance of the possible lies and the limited use to which they could be put. The appellant submitted that it was incumbent on the trial judge to give the kind of direction suggested in Zoneff v The Queen [2000] HCA 28; (2000) 200 CLR 234 [23] to avoid a miscarriage of justice. No submission was made by counsel at trial that a Zoneff direction should be given. The appellant submitted that the failure to seek a Zoneff direction could not be objectively explained on the basis that trial counsel perceived that there was a rational forensic advantage to be gained by not seeking such a direction.
At the hearing of this appeal, counsel for the appellant informed the court that although the written submissions referred to several 'lies', in fact only one lie attracted the need for a Zoneff direction.
The lie was said to be that the appellant gave evidence that when he reached the car park where the offence occurred, he had a telephone conversation with his co‑accused. He said this call occurred when he and the victim were standing outside the taxi just before going to a grassed area where the appellant claimed that consensual sexual intercourse took place. The prosecution pointed to a telephone record which showed that the call only lasted for one second and the fact that the conversation the appellant testified to would have taken much longer than one second. So the prosecutor submitted that the appellant lied about the conversation.
To put this in context, the appellant testified that earlier when he was driving the taxi, he had been asked by the victim for a drink of water; that he did not have any and that he rang the co‑accused, who he knew would have some water and asked him to bring some. There were several conversations about this, but the appellant's testimony about the relevant telephone call and which the prosecutor said was a lie, was as follows:
[B]ut before you walked you gave [the co‑accused] a quick call?---I just made a quick call to [the co‑accused].
What language did you speak in?‑‑‑Again, I talked to [the co‑accused] my own language, Punjabi.
And what happened after that?‑‑‑I just ask, 'Where are you now?' He said, 'I just on the down the road within a couple of' - not minutes, 'less than one minute' or something like that.
And what did you do after you spoke to [the co‑accused]?‑‑‑I said, 'Okay. And don't go anywhere, wait for me.'
And what happened next?‑‑‑And I hang up the phone.
In her address to the jury, the prosecutor said:
Because each accused, ladies and gentlemen, suggest that after Singh arrived in the car park a phone call was made from Singh to [the co‑accused]. And the whole purpose of that was so that Singh could find out how far away [the co‑accused] was and to tell him to wait. They say, of course, that this is because Mr Singh and [the victim] were about to dash off into the bushes for sex.
But the only answered call - the only answered phone call made from Singh to [the co‑accused] in that car park was at 10:30:47 and that lasted for one second, not long enough for any conversation at all. And at that time that that call was made from Singh to [the co‑accused] there was already in the car park [sic] (closing address ts 6).

A little further on the prosecutor said:
The State says what the accused didn't do was compare the stories that they were going to give with the telephone records and they've been caught out in a significant lie. So the State can't say, ladies and gentlemen, why Singh called [the co‑accused] when he was in that car park for that one second call ... [a]nd the State doesn't need to prove, ladies and gentlemen, exactly why that call was made. The relevance of it is that it shows that these men lied to you. And they lied for a specific purpose. They made this call up, the State says, because they wanted you to believe [the accused] knew that Singh would not be in the car park when he got there.
They wanted you to believe and to think that this was consistent with their version that Singh and [the victim] were about to go off into the bushes for sex. And they wanted you to think that is why, when [the co‑accused] said that he was coming to the car park to give water, he didn't leave. That is because, of course, that call was telling him to wait.
They made up this story, ladies and gentlemen, about sex in the bushes and Singh not being in the car park when [the co‑accused] arrived because if they were to know that Singh was in the car park - if he actually was there when [the co‑accused] arrived as the State says he was - the story of the whole purpose for [the co‑accused] being there to give him a drink falls apart.
The point made in the first three paragraphs is clear. However, it is difficult to make any sense of what the prosecutor was saying in the last two paragraphs.
This is a storm in a tea cup. The only issue in the case was about whether the victim consented to sexual intercourse. The alleged lie could not in any respect be seen as a lie which the jury might think was explicable only on the basis that the truth would implicate the accused in the offence with which he was charged. That is, that the appellant must have been lying because he was conscious that 'if he tells the truth, the truth will convict him': R v Tripodi [1961] VR 186, 193; Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193, 209. The lie, if it was one, merely went to the appellant's credibility.
There is no merit in this ground and it should be dismissed.

Ground 2

An audio‑visual recording was made of the interview between the police and the appellant. The appellant admitted that he drove the victim in his taxi and that he stopped at the car park. The recording of the interview was edited with the agreement of the parties. The editing produced an exhibit that would have prompted puzzlement in the minds of the jurors if it had been played and tendered with no comment at all about it. This is because the appellant was shown in the interview to admit that he picked up the victim, that he drove with her on the freeway, that he turned off the freeway and that he stopped at the car park. Then the questions asking him about what happened at the park and his refusal to answer these questions were edited out. The result was that the interview had him agreeing that he stopped at the park for 40 minutes and then took the victim home. Left to their own devices, the jury might have speculated why editing occurred at that point.
During her opening address, the prosecutor informed the jury of the video of the police interview. The prosecutor intended tendering the video. Counsel for the prosecutor referred to the fact that the video revealed the appellant saying that he had driven on the freeway and that the victim had begun to touch him, first on the head and then on his shoulder and talked about her relationship with her husband. The prosecutor said that the interview revealed the appellant saying that the victim did not want to go home and asked him to stop somewhere and that he did stop.
The prosecutor then added:
Now, he doesn't, ladies and gentlemen, say what happened when they stopped and that is completely his right. He exercised a right to silence with respect to what happened at that car park and you cannot draw any adverse inference against him for exercising ... what was his right when he spoke to police. But there's nothing in the interview about exactly what happened at the car park. Whilst he agrees he stopped and there was some discussion, that is all he says in his interview.
The trial lasted 11 days. No further comment was made by either counsel or the trial judge about the fact that the appellant had exercised his right to silence during the interview. The trial judge did not give the jury any direction about the appellant having exercised a right of silence when he was interviewed by the police and no such direction was sought by the appellant's counsel. However, it is relevant to mention that the appellant's co‑accused had not given any interview to the police and just before addressing the jury, the trial judge said to counsel for the appellant's co‑accused in the presence of the appellant and his counsel:
[O]ne matter that occurs to me that concerns your client is whether I should give any particular direction in relation to the fact that your client gave no interview to the police. It certainly is not something that has attracted any particular attention during the course of this trial. It's something that you mentioned briefly in your closing with a comment that he's entitled not to talk to the police and I - well, my view was it was probably the wiser course not to make anything further of that matter as it has not figured at all in this trial as an issue or a point of distinction, anything of that kind and, obviously, no inappropriate comment or anything of that kind has been even hinted at. So unless you were to urge me to give a direction specifically about the right to silence and not talking to the police I would not do so.
Counsel informed the trial judge that he would not be seeking any such direction. Prosecuting counsel agreed and the trial judge then asked all counsel whether there was anything specific that they wished to raise. No application was made by counsel for the appellant for the trial judge to give a direction about the right to silence.
The appellant now submits that there was a risk that the jury would, in the absence of a direction from the trial judge, use the fact that the appellant did not tell the police about what happened in the car park as evidence of his guilt. If there were any risk of that occurring, then there would be no question that a direction would have to be given by the trial judge: Petty v The Queen [1991] HCA 34; (1991) 173 CLR 95, 99. Petty establishes that:
(a)the right of silence means that, in a criminal trial, it should not be suggested, either by evidence led by the Crown or by questions asked or comments made by the trial judge or the prosecutor that an accused's exercise of the right of silence may provide a basis for inferring a consciousness of guilt; and
(b)it should not be suggested that previous silence about a defence raised at the trial provides a basis for inferring that the defence is a new invention or is rendered suspect or unacceptable.
Neither suggestion was made in this case.
What the prosecutor did was to tell the jury why nothing appeared in the interview about what the appellant said happened while he and the victim were at the car park. The sudden halt in the flow of the appellant's account of what happened due to the editing cried out for an explanation and the prosecutor gave it. The prosecutor explained that the appellant had said nothing about what happened at the car park because he had exercised his right to silence. The prosecutor immediately added that no adverse inference could be drawn because of this exercise by the appellant of his right to silence.
The case was then conducted by examining what the three witnesses who were at the car park said about what happened at the car park. No questions were asked about why the appellant had not said anything during the record of interview about what happened at the car park.
Three weeks after the prosecutor's comment, the judge raised the issue of whether a direction should be given about the exercise of the right

to silence in relation to the co‑accused. The appellant's counsel heard this and did not ask for a direction in relation to the appellant.

There was no miscarriage of justice. There is no merit in ground 2 and it should be dismissed.
MAZZA JA: I agree with Pullin JA that the appeal should be dismissed. I agree with McLure P's reasons in respect of ground 1 and Pullin JA's reasons in respect of ground 2.