GLEESON CJ, GAUDRON, GUMMOW, KIRBY AND CALLINAN JJ
IVAN ZONEFF APPELLANT
AND
THE QUEEN RESPONDENT
Zoneff v The Queen [2000] HCA 28 Date of Order: 7 March 2000 Date of Publication of Reasons: 25 May 2000 A23/1999
ORDER
Appeal allowed.
Set aside the orders of the Court of Criminal Appeal of South Australia made on 1 December 1998 and in place thereof order that:
the appeal to that Court be allowed;
the convictions on counts 2-7 in the Information be quashed; and
iii)there be a retrial.
On appeal from the Supreme Court of South Australia
Representation:
T A Gray QC with G J S Mancini for the appellant (instructed by George Mancini & Co)
W J Abraham QC with S McDonald for the respondent (instructed by Director of Public Prosecutions (South Australia))
Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Zoneff v The Queen
Criminal Law – Lies – Whether going to credibility or indicating guilt – Direction to jury – Proviso – Circumstances for application in strong Crown case.
Words and phrases – "consciousness of guilt".
GLEESON CJ, GAUDRON, GUMMOW AND CALLINAN JJ. This case is concerned with the correctness of a direction given by a judge of the District Court of South Australia in a criminal trial with respect to evidence of the appellant in his trial which the jury could have inferred to be false.
The Trial
The appellant was tried in the District Court on an information containing seven counts, four of which charged him with false pretences and three with fraudulent conversion. The jury returned a verdict of not guilty on the first count and found him guilty of the other six. The first charge was an alternative charge to one of fraudulent conversion.
The prosecution case was that the appellant took advantage of five people. One of them, Ms Sneath, had been referred to in the first and second counts. The other four were Mr McKinnon, Mr and Mrs Dik and Ms Phillips. All met the appellant when they went to purchase furniture from the Le Cornu Furniture Centre where he worked as a salesperson. The prosecution alleged that the appellant ingratiated himself with these people in order to obtain money from them by false pretences.
Ms Sneath and Mr McKinnon said that the appellant persuaded them to pay the amount outstanding on their purchases to him, so that they could obtain the benefit of bonus points to which he was entitled as part of his conditions of employment with Le Cornu. The appellant said that an additional discount of $720 would be available if they were to send the money they owed Le Cornu directly to him. Ms Sneath's and Mr McKinnon's evidence was that they agreed to the appellant's proposal, believing that he was acting in his capacity as an employee of Le Cornu and that he had authority to do what he…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Zoneff v The Queen [2000] HCA 28
Case
[2000] HCA 28
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal by Ivan Zoneff against his convictions for offences of false pretences and fraudulent conversion. Zoneff had been found guilty by a jury in the District Court of South Australia on six of seven counts, with the verdicts on most counts being by majority. The Court of Criminal Appeal of South Australia had dismissed his appeals against conviction, though it reduced his sentence. The sole ground for special leave to appeal to the High Court concerned the direction given by the trial judge to the jury regarding lies told by the appellant.
The central legal issue before the High Court was whether the trial judge's direction to the jury concerning lies was adequate, particularly in light of the principles established in *Edwards v The Queen*. Specifically, the court had to determine if the direction, which the Court of Criminal Appeal considered to have imperfections, constituted a miscarriage of justice, or if any such imperfections were rendered insubstantial by the strength of the Crown's case and the overall context of the trial. The appellant contended that a full direction, as outlined in *Edwards*, should have been provided.
The High Court allowed the appeal, setting aside the orders of the Court of Criminal Appeal and quashing the convictions on counts 2-7. The Court ordered a retrial. The reasoning focused on the trial judge's direction concerning lies, which, while intended to caution the jury against automatically inferring guilt from lies, was found to be potentially misleading. The majority of the Court of Criminal Appeal had concluded that no miscarriage of justice had occurred, but the High Court disagreed, finding that the direction was not sufficiently clear and that the potential for improper reasoning by the jury could not be discounted. The Court considered that the direction did not adequately address the circumstances under which a lie might be considered evidence of guilt, nor did it sufficiently explain how to distinguish lies going only to credit from those indicating consciousness of guilt.
Orders
Orders of the court
1.
Appeal allowed.
2.
Set aside the orders of the Court of Criminal Appeal of South Australia made on 1 December 1998 and in place thereof order that:
1.
the appeal to that Court be allowed;
2.
the convictions on counts 2-7 in the Information be quashed; and
iii) there be a retrial.
Background
Background to the litigation
As is its wont, the law has tended to complicate needlessly a subject that calls upon the jury's reserves of common sense. This result sends appellate courts in search of responses. These may include the provision of guidelines or standard directions which will help render the judge's charge to the jury appeal-proof[19]. Or it may result in a conclusion that the law has become needlessly complex and that judicial directions should be simplified and confined to a minimum[20]. In some cases (such as the present), it requires an appellate court to consider "the proviso"[21] and to treat any "imperfections in the trial judge's directions"[22] as insubstantial when that court is convinced that no relevant miscarriage of justice has resulted.[19]A list of twelve "principal points to be borne in mind" appears in R v Renzella [1997] 2 VR 88 at 91-92. In Victoria there is no invariable rule of practice to give a direction concerning lies where the lies are judged to "go only to credit". See R v Morgan, unreported, Court of Appeal, 13 August 1996 noted in Renzella, at 91.[20]cf New Zealand Law Commission, Juries in Criminal Trials (Pt 2), Preliminary Paper No 37, (1999), vol 2 (hereafter "New Zealand Law Commission") at par 7.34.[21]Criminal Law Consolidation Act 1935 (SA), s 353 (1).[22]R v Zoneff [1998] SASC 6977 at [22] per Prior J.The facts Mr Ivan Zoneff ("the appellant") was convicted in the District Court of South Australia following a trial by jury. The jury found him guilty on six of seven counts of an information charging him with offences of false pretences and fraudulent conversion. On all but one of the counts, the verdict was by majority. The count on which he was found not guilty (count 1), was alternative to a count on which he was found guilty (count 2). So the effect of the verdicts was that the jury found the appellant guilty of an offence in respect of each of the dealings relied on. The total amount of money involved in the offences was about $73,000. The presiding judge (Lowrie DCJ), sentenced the appellant separately in respect of each of the counts on which he was convicted. The sentences totalled seven years and six months imprisonment. Because the offences had been committed whilst the appellant was on parole following earlier convictions and a sentence for similar offences[23], he was ordered to serve a total sentence of ten years nine months and 26 days imprisonment. A non-parole period of six years was fixed.[23]R v Zoneff [1998] SASC 6977 at [23] per Prior J. The appellant appealed against the convictions and sentence to the Court of Criminal Appeal of South Australia. That Court, by majority[24], dismissed the appeals against the convictions. It unanimously upheld the appeal against sentence. It reduced the appellant's total sentence[25]. By special leave, the appellant appeals to this Court against his convictions. The sole ground upon which special leave was granted concerns the point on which the Court of Criminal Appeal divided. The appellant complains about the direction given to the jury by the trial judge concerning lies. He asserts that the judge should have given a full direction in accordance with the principles set out in Edwards v The Queen[26].[24]Cox and Prior JJ; Olsson J dissenting.[25]To seven years, three months and 26 days with a non-parole period of five years pursuant to the Criminal Law (Sentencing) Act 1988 (SA), s 32(2).[26](1993) 178 CLR 193.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
GLEESON CJ, GAUDRON, GUMMOW AND CALLINAN JJ
CJ, GAUDRON, GUMMOW AND CALLINAN JJ
(dissent)
KIRBY J
(dissent)
Because of the limited grant of special leave, only one relatively short passage in the trial judge's charge to the jury is of concern to this Court. It relates to the direction which the judge gave concerning the issue of lies and how the jury should approach that issue. The trial had lasted seven days. The charge began late on the morning of the seventh day of the hearing. It was relatively brief. It concluded just before lunch. The direction complained of occurred early in the charge. It is set out in the majority's reasons and I will not repeat it. It was amongst a number of general directions which the judge gave. As it appears in the transcript, Lowrie DCJ also said[33]:"Some people have good memories, some people have not as good a memory. Some people's memories and observations are awful, and you look at that evidence and you say 'Well, what is this evidence?'Sometimes there may be inconsistencies in that evidence which you feel you can say 'Well, that person is endeavouring to tell the truth although there are some inconsistencies. I do not necessarily reject that evidence, I think they are doing their best to tell the truth.'Even sometimes those inconsistencies may well be major. You may well think ‘Well, I think they are endeavouring to tell the truth and I accept their evidence.' You may get to a stage where, because of inconsistencies, they are too much, and you say 'Well, that evidence is unreliable, I am not prepared to act on it' or, indeed, the final stage where you say ‘Well, I believe that person is wrong' and eventually that is the case and you would not accept their evidence."[33]R v Zoneff unreported, District Court of South Australia, 16 April 1997 at 3-4.The Court of Criminal Appeal's decision In the Court of Criminal Appeal all of the judges considered that this direction suffered from "imperfections"[34]. The majority (Prior J with Cox J concurring) did not accept that, in the questions asked, the prosecution had been presented as one in which the jury would be entitled to convict the appellant on the basis that any lies found would be ground enough for an inference of guilt of the particular charges which the appellant faced. The majority were not convinced that any miscarriage of justice had resulted from the defects in the judge's directions. On the contrary, they concluded that the directions had not caused the appellant's case any harm; that they did not lead the jury towards improper reasoning; and that their effect was to alert the jury, correctly, to the fact that a finding that the appellant had lied did not necessarily mean that he was guilty as charged[35].[34]R v Zoneff [1998] SASC 6977 at [22] per Prior J.[35]R v Zoneff [1998] SASC 6977 at [21] per Prior J. The dissenting judge (Olsson J)[36], on the other hand, considered that it was "most unfortunate" that the trial judge had introduced the possibility of lies constituting "evidence of consciousness of guilt". He said that this had not been raised by the Crown. Once it was raised by the judge he had a duty to give what he described as a "full direction" in accordance with the decision of this Court in Edwards[37]. This would have required identification of "specific aspects of the evidence ... which might indicate a reason for lying" and specification of the preconditions necessary to reaching a conclusion that a finding that the appellant had lied on a particular occasion constituted "consciousness of guilt" of a particular offence[38]. [36]R v Zoneff [1998] SASC 6977 at [27]-[28] per Olsson J.[37]Edwards v The Queen (1993) 178 CLR 193.[38]R v Zoneff [1998] SASC 6977 at [28] per Olsson J.
Ratio Decidendi
Legal Principle Established
Established by:
GLEESON CJ, GAUDRON, GUMMOW AND CALLINAN JJ,