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Lawson v The Queen [2004] NTCCA 7

PARTIES: LAWSON

v

THE QUEEN

TITLE OF COURT: COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

JURISDICTION: CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

FILE NO: CA8/02 (20101140)

DELIVERED: 15 September 2004

HEARING DATES: 25 August 2004

JUDGMENT OF: MARTIN (BR) CJ, RILEY J & PRIESTLEY AJ

CATCHWORDS:

APPEAL
Criminal law – appeal against conviction – lies by accused – directions as to use of lies – miscarriage of justice – fresh evidence not available at trial – whether jury, acting reasonably, would have acquitted the appellant if fresh evidence had been before it at trial – appeal allowed.

Criminal Code Act (NT), s 411(2)

Edwards v The Queen (1993) 178 CLR 193; Zoneff v The Queen (2000) 200 CLR 234; Dhanhoa v The Queen (2003) 199 ALR 547; R v Callander (2004) 144 NTR 1, applied.

REPRESENTATION:

Counsel:
Appellant: C McDonald QC
Respondent: M Carey

Solicitors:
Appellant: NTLAC
Respondent: DPP

Judgment category classification: A
Judgment ID Number: Mar0409
Number of pages: 25

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Lawson v The Queen [2004] NTCCA 7
No. CA8/02 (20101140)

BETWEEN:

LAWSON
Appellant

AND:

THE QUEEN
Respondent

CORAM: MARTIN (BR) CJ, RILEY J & PRIESTLEY AJ

REASONS FOR JUDGMENT

(Delivered 15 September 2004)

Martin (BR) CJ:
Introduction
[1] This is an appeal against convictions for sexual intercourse without consent and deprivation of liberty. The appellant also seeks leave to call fresh evidence with a view to establishing that the verdicts of the jury were unsafe and unsatisfactory.
[2] The appellant was charged with three offences arising out of events that occurred on 17 June 2000 at Katherine. Count 1 charged that the appellant had sexual intercourse with the female complainant without her consent contrary to s 192(3) of the Criminal Code. Count 2 charged that the appellant deprived the complainant of her personal liberty contrary to s 196(1) of the Criminal Code. The appellant was convicted by a jury of both those counts.
[3] The third count charged that the appellant, with intent to cause fear, made a threat to kill the female complainant contrary to s 166(1) of the Criminal Code. The jury acquitted the appellant of the third count.
[4] Leaving aside the application to call fresh evidence, the sole ground of appeal is as follows:
“The Learned Trial Judge erred in law in his directions to the jury in failing to direct the jury adequately in relation to the alleged lies told by the Applicant in his record of interview thereby giving rise to a substantial miscarriage of justice.”
[5] The particulars of the ground of appeal are as follows:
“The Learned Trial Judge’s directions to the jury made it clear to the jury that it could draw an inference of guilt by reason of the nature of the allegedly false answers given by him in his record of interview and in his statement. Accordingly, directions were required to be given to the jury in accordance with the High Court decisions in Edwards v The Queen (1993) 178 CLR 193 and Zoneff v The Queen (2000) 200 CLR 234.”
Trial Evidence
[6] The complainant resided at the Kalano community near Katherine. During the evening of 16 June 2000 she walked into Katherine. After drinking at different places in Katherine, late at night the complainant commenced walking back to Kalano. She gave evidence that as she walked past a laneway near the police station a man (“the appellant”) grabbed her from behind and put an arm around her neck. She screamed and the appellant put his hand across her mouth. The appellant forced the complainant to walk down the lane and took her to bushes where she complied with his demand to remove her clothes. The complainant said she was too scared to resist and that the appellant had penile sexual intercourse with her against her will.
[7] The complainant also gave evidence that during the events the appellant threatened to kill her. In cross-examination, however, the complainant agreed that she did not tell the police that the appellant threatened to kill her. She told the police that the appellant told her to keep quiet.
[8] The complainant said that after intercourse the appellant put on his pants and walked away. She described him as walking “so fast”. She put her clothes on and walked towards the police station. On the way she met her poison cousin, Ms Lynda Johnson. She told Ms Johnson she had been raped and asked if any police were around. Ms Johnson took the complainant to the police station.
[9] Ms Johnson gave evidence that earlier in the evening she saw the complainant walking along a footpath. She turned away and when she looked back the complainant had disappeared. She said that after the complainant disappeared she heard the complainant scream. She said she heard the words “help” and “help me please” and that the complainant screamed for help twice.
[10] Some minutes later Ms Johnson went outside to look for the complainant. She was with Mr Freddie Ashley and Ms Ina Ashley. All three reported hearing the scream to the police. Constable Taylor confirmed that Mr Ashley and Ms Ashley, together with a third Aboriginal lady who it was accepted was Ms Johnson, reported hearing a lady screaming in the area of the police station. They told him it sounded like she was screaming for help.
[11] Ms Johnson said that when she left the police station she saw the complainant running towards her. She confirmed that the complainant told her that she had been raped. Ms Johnson described the complainant as shaking and crying. She took the complainant into the police station.
[12] Constable Taylor said that about two to five minutes after the reporting of the screaming, Mr Ashley, Ms Ashley and the third Aboriginal lady returned to the police station with the complainant. He described the complainant as very upset. Her voice was shaky. Constable Taylor said the complainant was physically shaking and looked like she had been crying. He observed grass on her clothes and a scrape on one of her elbows.
[13] Constable Taylor gave evidence that the complainant told him she had been grabbed in the laneway at the back of the police station by a man who put his arm around her neck and made her walk to somewhere at the front of the police station where he threatened her, made her undress and raped her.
[14] Mr Ashley said he was woken by his wife and told that someone had been screaming. He confirmed reporting the screaming to the police and that after they left the police station the complainant came running to them. He described the complainant as crying and shaking.
[15] Ms Ashley gave evidence that she was woken by the sound of a woman screaming. She remembered the words “Help me, somebody help me” and said she heard those words more than once. She woke her husband. Ms Ashley was unable to recall going anywhere before the complainant appeared. She described the complainant as crying and shaking and said her hair was dishevelled.
[16] Some hours after the complaint to Constable Taylor, the complainant was examined by a medical practitioner. The doctor noticed superficial grazes to the complainant’s lower limbs and debris in her hair at the back of her head. By gently feeling over the larynx, the doctor found what she described as “some tenderness” over the complainant’s larynx. There were no other abnormal findings.
[17] Almost one month after the incident police took a statement from the appellant in the form of a signed statutory declaration. Prior to taking the statement, the investigating officer did not inform the appellant that he was investigating a sexual assault.
[18] In the statement the appellant said that on the evening in question he had been drinking at a hotel and later went to a nightclub. Subsequently he returned to the hotel which was closing. As he was catching a taxi, two Aboriginal people sought to share the taxi and he agreed. He said he got out at Acacia Drive near Frangipani Court and started to walk home. As he passed a house near a block of white flats close to the police station he stopped and talked to Warren Blacksmith. The couple that had shared the taxi were still with him. He said he talked to Mr Blacksmith for a short time before leaving and walking the rest of the way home by himself. He said he walked down Acacia Drive into Coolibah Crescent and then into Miniata Court. The appellant lived at No 3 Miniata Court.
[19] Just over six months later on 24 January 2001, the appellant was arrested. He participated in a formal video recorded interview. On this occasion the police informed the appellant that they were investigating a sexual assault on the complainant which had occurred on 17 June 2000.
[20] In the formal interview the appellant acknowledged speaking with a police officer on a prior occasion, but said it was not in relation to a sexual assault. He said he had been told by the officer that it related to a woman being bashed and no mention was made of a name or sexual assault or anything like that. The appellant said that if he had been asked about a sexual assault he would have been willing to talk to the police about it, but they had told him a completely different story.
[21] In substance, the appellant said that while he was talking to Warren Blacksmith he was approached by a female person. They spoke to her. The appellant did not know the woman, but she was known to Mr Blacksmith. The appellant said that when he started to walk home, the female person started walking with him. The appellant’s description of the subsequent events was as follows:
“We were talking and we ended up, one thing led to another, we ended up having sex and then she, after we finished having sex she said she wanted money and I said I didn’t have any money to give her and she said that if I didn’t give her money, she’d go to the police.”
[22] The appellant said he just walked off and went home to 3 Miniata Court. He denied the complainant’s version of events and maintained that she consented to sexual intercourse with him.
[23] The two persons who accompanied the appellant in the taxi were Ms Phyllis Ashley and her husband Mr Bruce Thompson. Ms Phyllis Ashley said that after they got out of the taxi with the appellant in Acacia Drive, the appellant was “walking up and down”. She said he was walking up and down in the laneway. She went home to sleep and her husband told the appellant to go away.
[24] During cross-examination Ms Ashley said she was drunk. She thought the taxi had stopped in front of the house of Mr Blacksmith, but she was not sure about that.
[25] Mr Thompson confirmed the evidence of Ms Ashley that it was the appellant who asked for a lift in the taxi. Mr Thompson and Ms Ashley lived at 49 Acacia Drive. Mr Thompson said they alighted from the taxi not far from his home. He said he and his wife walked home. The appellant was, in Mr Thompson’s words, “hanging around the street”. He said he saw the appellant talk to Warren Blacksmith. He described Mr Blacksmith as living next door to the white flats.
[26] Mr Thompson said he had a shower and changed before going out again. He said he was inside for a couple of minutes before he went outside to wait for a taxi. He saw Mr Blacksmith and the appellant outside the home of Mr Blacksmith.
[27] During cross-examination Mr Thompson was asked whether his wife sat on the side of the road while he was talking with the appellant and Mr Blacksmith or whether she stayed with him. He said she stayed with him and did not sit down in the street. Asked if he saw the complainant sitting down in the street, Mr Thompson responded “No”.
[28] Mr Blacksmith gave evidence on 4 December 2001. He said that on the evening in question he was drinking with other people at home when he saw the light of a taxi pull up outside his house. He recognised people by the name of Phyllis and Bruce who got out of the taxi with the appellant. Mr Blacksmith said that outside the house he talked to the appellant for about seven to ten minutes. At about the time the conversation finished, Phyllis and her husband were across the road. Phyllis was sitting and her husband was standing up. He said he did not see anyone else out on the street. Asked if he was sure there were no other people on the street, Mr Blacksmith responded in the affirmative.
[29] The evidence of Mr Blacksmith was significant. It contradicted the appellant’s version to the police that the complainant had approached him while he was in the company of Mr Blacksmith and had spoken to them. If the appellant’s version was correct, Mr Blacksmith was present when the appellant started to walk home and was accompanied by the complainant. The evidence of Mr Blacksmith is the subject of the application to call fresh evidence which is discussed later in these reasons.
[30] During the interview of 24 January 2001, the appellant was asked why there was no mention of the woman in his statement of 13 July 2000. He responded that no one asked him about this matter. He said that he had been asked if a woman was bashed and replied he had not bashed a woman. He said no one asked him if he had slept with anyone. He would have told them if he had been asked. The appellant said he did not think it was anyone’s business if he slept with someone or not.
[31] In the statement of July 2000, the appellant told police that after he finished talking with Mr Blacksmith he walked down Acacia Drive onto Miniata Court where he lived. That version of the route taken was different from the version given to the police in the formal interview of January 2001 when he said he walked down the laneway near the police station. When it was first put to him in the formal interview that in his previous statement he spoke of walking down Acacia Drive onto Miniata Court, the appellant said he could not remember what he had said. As the questioning progressed the appellant volunteered:
“Since then I’ve had a bad head accident, which you know of and I have trouble remembering a lot of things and doing a lot of things.”
[32] It was put to the appellant that even if he omitted telling the police about the sexual activities, he had given a different version of his movements when giving the statement in July 2000. The following questions and answers then occurred:
“Q. Why didn’t you say you went up the laneway and from the police station and down through, why did you tell me at the time that’s how you went home?
A. I possibly, quite possibly couldn’t remember at the time.
Q. But you can remember it clearly now?
A. After thinking about it, yeah.”
[33] Later in the interview the appellant repeated that he could not remember why he had given a different direction of travel in the July statement. He repeated that he could have been confused about what he was doing at the time he gave the statement.
[34] The appellant did not give evidence.
Addresses
[35] In order to assess the adequacy of the directions by the trial Judge concerning failure of the appellant to mention a woman in the July statement and the different statements by the appellant as to the route that he took when he walked home, it is necessary to have regard to the approach of counsel to this issue.
[36] In the absence of the jury counsel for the Crown told the learned trial Judge and the appellant that the Crown relied on the differences as relevant to credit only and not consciousness of guilt. In his address, counsel for the Crown put to the jury that the appellant had brought up the “red herring about money” and had woven his story around the topic of money because there was no other way to explain what happened between the appellant and the complainant. He reminded the jury that in the first statement of July 2000 the appellant did not mention “sex with a willing female”. He then addressed in the following terms:
“In that statement, police statement – the witness statement, although he admits being in Acacia Drive, he says he went home via Coolibah Court or Circuit which you can see on the map, no doubt, for yourselves, and not by the laneways. Now, you may think, ‘Oh, well, I suppose’. But then again, he seems to have particularly directed his mind to what he was doing that night because he told the police in that statement – and of course you’ll have this when you go to consider your verdict – about how he was talking to Warren Blacksmith and how he’d been dropped off in Acacia Drive and he’s told them, ‘Well, I went via Acacia Drive into Coolibah Court and into Miniata Court’ where he was living at the time.
So I wonder why he made that particular mistake. Well, you remember there’s a – you’ll look at the video again, no doubt. There’s a lot about some head injury. Again, it escapes my – I cannot work out what the head injury’s got to do with what he said in his police statement but he says there was some – he had some confusion in his mind even before this head injury.
But do you really think there may be another reason why he made that mistake about he went to Acacia Drive and Coolibah Court to Miniata Court rather than the laneways? He’s trying to distance himself from any possible relevance to what was going on, what may have gone on with that girl.
Now, again he doesn’t have to prove anything. He doesn’t have to volunteer this information to the police but having done so, if he’s been a little selective about what he told the police as to omitting mention of a girl and omitting changing his route home, you may think, ‘Well, does that really go to his credit?’ And when I say ‘credit’ his credibility. Can you really accept what he’s either said in that witness statement to the police, or for that matter, in the record of interview?
I make it very clear, members of the jury, that the Crown is not saying ‘Well, he’s not to be believed in the statement to the police but maybe he’s to be believed. We don’t say that. We say he’s not to be believed, neither the witness statement or the record of interview. He’s just not being up front with you at all, because, of course, if he was, he’d be admitting what [the complainant] tells us happened, would he not? We say you can reject both the statement and the video.” (my emphasis).
[37] Counsel for the appellant did not object to any aspect of the prosecutor’s address. In her address she advanced reasons why the appellant would not have mentioned having sexual intercourse with the complainant. As to the error about the route taken on the way home, counsel put to the jury that it was an alternative route and the appellant may not have remembered which way he went. She put there was no significance in that particular change.
Directions to the Jury
[38] The trial Judge gave the jury general directions concerning the statements by the appellant to the police and followed those directions with specific directions as to the use that could be made of any lies by the appellant in those statements. Those directions were as follows:
So that is that but the record of interview and the witness statement which is exhibit P5, is just like any other piece of evidence in this trial. What weight you give to it is a matter for you. What the accused says in the record of interview is not evidence unless the Crown prosecutor makes it so by choosing to use it as part of the case against the accused.
But once tendered, the record of interview can become evidence both against the accused as well as for the accused. Everything said in the record is part of the evidence including statements to the general effect that the accused in fact did have sexual intercourse with a woman you may well think was [the complainant].
Whilst statements of this kind are part of the evidence, what weight you give them are a matter for you. On the one hand you might think that any incriminating parts of the record must be true, otherwise why say them? On the other hand, you might think that explanations given as to what happened by the accused, such as the explanation he gives to it being a totally consensual act, is only an excuse and should be given little or no weight.
I am not suggesting that you ought to give his explanations little or no weight, that is a matter for you. What I am suggesting is that you do not necessarily have to give the same weight to everything the accused has said, although you may do so.
In considering what weight to give to what was said, you will bear in mind your common experience of life, that people often try to make excuses for what they have done in order to avoid or diminish blame for what they have done. And you should also, when evaluating this evidence, have regard to the rest of the evidence in this case.
If you think that what the accused has said about what happened is, in the light of the other evidence in this case, reasonably possible, then you ought to approach this case on the basis that that reasonable possibility has not been excluded by the Crown and give to him the benefit of any reasonable doubt if what he has said is consistent with his innocence. I remind you also that what he told police was not subjected to cross-examination.
Now one of the things being put to you, that I need to draw to your attention, is this: the Crown says that there are lies in both this document and this document. That is to say in the first statement he made to police and his record of interview. The Crown says that you can ignore those explanations that he gives, except to the extent to which he has made admissions.
It is very important that you understand the way in which you can use lies, if that is the conclusion that you reach. If you are satisfied that the explanation which the accused has given in the record of interview is untrue, then that does not necessarily mean that you must find him guilty.
What it means is that you put the lies or the parts of the record of interview that you do not believe to one side. You just say, ‘I don’t accept that evidence’, and you just put it to one side. You then look at the rest of the evidence and you ask yourself the question, ‘Has the Crown proven its case beyond reasonable doubt?’.
So that is the use you make of the record of interview, you can use it against the accused insofar as there are admissions in there; you can use it for him if you choose to do so. It is entirely a matter for you, but the one thing that you cannot do is jump to the conclusion that, even if you disbelieve his account, that he must therefore be guilty.
In order to find him guilty, you still have to just put that evidence aside and you would look at the rest of the evidence and ask yourself the question, ‘Has the Crown proven its case beyond reasonable doubt?’.
[39] Subsequently the trial Judge returned to the topic of the statements by the appellant in the context of the submissions of counsel. Those directions were as follows:
“Mr Noble suggested that the accused’s story is untruthful and that you should disregard it. He reminded you that there are a couple of very big differences between what he told the police in his first statement and what he later said in his record of interview, namely the failure to mention anything about [the complainant] and the different story he gave as to his way home that night.
You might think that if you were being asked about your movements that night by the police and about a woman being bashed and you had nothing to worry about, you might have been more forthcoming. After all, according to the accused, he was being asked not about a sexual assault but a woman being bashed. So why would he not tell the police the truth?
The explanation he gives is that if he had been asked about a sexual assault he would have told the police about that, but it was nobody’s business if he had sex with a woman. Mr Noble suggested that he had no reason to be chivalrous if the woman had asked him for money and threatened him with the police and whilst this is so, it is just as likely that he wanted to prevent his own embarrassment you might think.
As Ms Cox put to you, people do lie about sex and even some prominent people have from time to time. Then why say he went home via Coolibah Court? Why not say he walked past the police station and then went home through the laneway into Miniata Court? If he was not being asked about a sexual assault, he had no reason to lie about which way he went home. He could have still said nothing about the sexual encounter.
What does he say about this in the record of interview? First he said that he did not read his statement. He looked at it but he did not read it. Page 15. ‘I didn’t read the statement, I looked at the statement I didn’t read it.’ But earlier in the record of interview he was specifically asked if he had read his statement before he signed it, that is at page 12. ‘Did you read the statement before you signed it?---This statement here?’ ‘Yes?---Yes.’
Then he suggested that he had an accident and that he had trouble remembering things. He said: ‘Since then I’ve had a bad head accident which you know of and I have trouble remembering a lot of things and doing a lot of things.’
Harris said – I am not reading all of it but Harris said this: ‘But what he’s also saying is that you told us your movements, even if you omitted to tell us about your sexual activities, you’ve, when you’ve been spoken to, provided a different direction of travel; why didn’t you say you went up the laneway and from the police down through, why did you tell me at the time that’s how you went home?’ Then he says: ‘I possibly – quite possibly couldn’t remember at the time.’ Thompson: ‘But you can remember it clearly now?’ Lawson: ‘After thinking about it, yeah.’
Then he is asked how his injury has affected his ability to give an account to the police on the day of the record of interview. His answer this time is that he cannot remember why he told the police why he walked down Acacia, down Coolibah to Miniata and he says he could have got confused about what he was doing. That is on page 17.
Mr Noble submitted that he was not being up front with the police in either statement and that you should reject both. Whilst on that topic, I should remind you of the evidence of Detective Thompson, that he read the first statement before he signed it and spent five minutes at the most doing so. You should also remember that the first statement is in the form of a statutory declaration and is quite a formal document.
Ms Cox submitted to you that because he was not told that the investigation was about a sexual assault that he might simply have thought at the time that because he usually walked down Acacia to Coolibah, that that is the way he went and he did not connect with the night be had sexual intercourse with this woman. Well, that is a matter for you and you will bear that in mind.” (my emphasis).
[40] At the conclusion of the directions to the jury, counsel for the appellant raised an issue concerning the directions as to distress. No mention was made of the directions concerning the statements by the appellant to the police and the use of lies.
Principles
[41] It is unnecessary to embark upon a detailed discussion of the principles that guide trial Judges in their directions as to the use of lies. Voluminous case law has developed since the decision of the High Court in Edwards v The Queen (1993) 178 CLR 193. In particular the principles has been elucidated by the subsequent decisions of the High Court in Zoneff v The Queen (2000) 200 CLR 234 and Dhanhoa v The Queen (2003) 199 ALR 547. This Court recently had occasion to discuss the principles in R v Callander (2004) 144 NTR 1.
The Crown Approach
[42] Although the prosecutor advised the trial Judge and the appellant that he was not relying upon lies as evidence of consciousness of guilt, nevertheless the critical question for the trial Judge was whether there was a perceptible risk that the jury might use a lie or lies as evidence that the appellant knew the truth would implicate him in the commission of the offence. This involved consideration of the nature of the lies and any explanation for them together with the manner in which the prosecutor put the lies to the jury.
[43] In my opinion, although the prosecutor spoke of the appellant’s omission in the July statement of meeting a female and of changing his route home as lies affecting the credibility of the applicant’s version said to the police, when the prosecutor’s remarks are viewed in their entirety he plainly told the jury that in the July statement the appellant was trying to distance himself from what had happened. In substance the prosecutor put to the jury that the appellant was not “up front” because, if he was up front, he would be admitting that he raped the complainant. At the least, there is a serious risk that when the prosecutor said the appellant was not being up front because, if he was, he would be admitting that what the complainant told the jury had happened, the jury would have understood that submission to mean that the lie was told because the appellant knew that the truth would implicate him in the commission of the offence.
The Directions
[44] In these circumstances it was necessary for the trial Judge to instruct the jury that if they were satisfied the appellant told a lie or lies, the telling of such a lie or lies was not evidence of guilt and that it could only be used as evidence going to the appellant’s credit. This is the type of direction contemplated in Zoneff [23]. The direction should have made plain to the jury that the evidence of lies cannot be used as evidence of guilt and can only be used as evidence affecting the credibility of the appellant.
[45] The initial directions given by the trial Judge clearly explained to the jury that if satisfied the appellant told lies, the jury was to put aside those parts of the interview which the jury did not believe and was not to jump to the conclusion that because the appellant told lies he must, therefore, be guilty. His Honour directed the jury that having put aside the lies or the parts of the interview which the jury did not believe, the jury was then required to determine from the remainder of the evidence whether the Crown had proven guilt beyond reasonable doubt.
[46] That direction was favourable to the appellant to the extent that the trial Judge did not tell the jury that a finding that the appellant told lies was relevant to an assessment of the credit of the appellant and to the weight to be given to the remainder of the appellant’s version given in the formal record of interview. The direction did not, however, explicitly inform the jury that the telling of the lie or lies could not be used as evidence of guilt. Notwithstanding that omission, if this direction had stood alone I would have been inclined to the view that although the jury should have been specifically directed that they could not use the lies as evidence of guilt, the direction was adequate because it was expressed in terms that required the jury to put aside any lies and ignore them.
[47] The initial directions were supplemented by further directions given in the context of a reminder that the prosecutor had suggested there were big differences between the two statements and that the appellant’s “story” was untruthful. Having reminded the jury of the prosecutor’s suggestions, the trial Judge made his own comments to the jury in the terms of the second and fourth paragraphs set out in par [39] of these reasons. In those comments his Honour invited the jury to consider why the appellant did not tell the truth to the police about his movements and commented that the jury might think the appellant would have been more forthcoming about his movements if he had “nothing to worry about”.
[48] In my opinion, it is likely that those comments were understood by the jury to mean that it was open to the jury to reason that the appellant told lies because he had something to worry about if he told the truth. Against the background of the prosecutor’s address, at the least there is a serious risk that the jury understood that they were entitled to reason that the appellant told lies because he knew the truth would implicate him in the commission of the offence.
[49] As Gleeson CJ and Hayne J observed in their joint judgment in Dhanhoa, it is not necessary for a trial judge to give a direction of the types identified in Edwards or Zoneff every time it is suggested in cross-examination that an accused has told lies either in court or out of court which reflect adversely on the accused’s reliability [34]. In my view, however, there is a significant difference between that situation and the effect of a prosecutor or the trial Judge inviting the jury to consider why an accused has told lies. Almost inevitably an invitation to consider why an accused has told lies will carry with it the implication that a conclusion open to the jury is that the accused told lies because the accused knew the truth would implicate the accused in the commission of the offence.
[50] Notwithstanding the initial directions by the trial Judge in which the jury was told to put aside the lies, viewed in their entirety the directions invited the jury to consider why the appellant told lies. The directions left open to the jury the conclusion that the appellant told lies because he had something to worry about, namely, that the truth would implicate him in the crime charged.
[51] In my opinion the lies were capable of supporting a conclusion that the accused lied because he knew the truth would implicate him in the offence. However, the Crown had eschewed any reliance on the lies for that purpose and the trial proceeded on the basis that the lies were relevant to credit only. In these circumstances, it was unfair to the appellant for the lies to be left to the jury as relevant to anything but credit. In addition, as the directions left it open to the jury to reason that the appellant told lies because he knew the truth would implicate him in the commission of the offence, the Edwards type direction was required.
[52] Notwithstanding the failure to give the directions to which I have referred, counsel for the respondent submitted that the appeal should be dismissed because no substantial miscarriage of justice has occurred (s 411(2) of the Criminal Code Act). I am unable to agree with that submission. Although the evidence of the complainant was supported by witnesses who heard screams and saw her in a distressed and dishevelled state, and medical evidence was capable of supporting the complainant’s version, nevertheless the case centred upon the evidence of the complainant and the competing version given by the appellant in the formal record of interview. If the jury reasoned that the appellant lied in his July statement because he knew the truth would implicate him in the crime charged, that reasoning was of devastating impact to the case for the appellant. The comments of the trial Judge tended to support such a conclusion, but the jury was left without the guidance required by Edwards.
[53] In these circumstances I have reached the view that this ground of appeal is made out and that the verdicts should be set aside.
Fresh Evidence
[54] As I have reached the conclusion that the verdicts should be set aside, it is unnecessary for me to deal in full with the application to call fresh evidence. It is sufficient to indicate briefly why, in my view, that application must fail.
[55] As mentioned, Mr Blacksmith gave evidence that he spoke with the appellant, but said that apart from Phyllis and Bruce he did not see anyone else on the street. This evidence contradicted the version given by the appellant in the formal record of interview.
[56] The appellant sought to put before the court an affidavit sworn by Mr Blacksmith on 1 October 2003. In the affidavit Mr Blacksmith deposed that at the time of the trial he was an inmate in the Berrimah Corrections Centre. According to the affidavit, the following events occurred on the night in question. After the arrival of Bruce, Phyllis and the appellant, Mr Blacksmith went over to the fence of his house and began talking to the appellant. While Mr Blacksmith was talking to the appellant he saw a lady that he now knows as the complainant sitting across the road. The complainant came across to the front of Mr Blacksmith’s house and started to talk to the appellant. Mr Blacksmith said “see ya later” and went back inside. He did not see the appellant or the complainant leave the front of his place.
[57] Mr Blacksmith stated in his affidavit that he did not mention the woman to the police because he did not want to get involved in the matter as he had just been released from gaol. The explanation for not mentioning the complainant during his evidence at trial was as follows:
“13. When I gave evidence in Murray Lawson’s trial, I did not make further mention of [the complainant] being across the road from my place or that I had seen her come across the road to the front of my place and talk to Murray Lawson. I say that I was confused at the time of giving my evidence and I did not want to be a witness.
14. I did not want to be involved in Murray Lawson’s trial. I just wanted to complete my term of imprisonment and to be left alone.”
[58] The proposed evidence is fresh. However, in my opinion the proposed evidence is not reasonably capable of belief.
[59] Mr Blacksmith gave a statement to the police on 19 June 2000. In that statement Mr Blacksmith told police of the presence of Bruce and Phyllis, but he made no mention of another woman.
[60] On 30 May 2001 the appellant gave evidence in the committal proceedings. His statement of June 2000 was tendered in examination. During cross-examination Mr Blacksmith said he did not see anyone else approaching his house other than Bruce and Phyllis.
[61] Mr Blacksmith gave evidence in the trial on 4 December 2001 and the verdicts were returned on 6 December 2001. In June or July 2002 the solicitor who had acted throughout for the appellant spoke with Mr Blacksmith. He suggested to Mr Blacksmith that Mr Lawson had said that Mr Blacksmith wanted to speak to the solicitor, but Mr Blacksmith responded with words to the effect “No, Murray’s been talking to me”. Mr Blacksmith told the solicitor he did not want to say anything about the evidence he had given.
[62] On 25 March 2003 police took a statement in the form of a statutory declaration from Mr Blacksmith. He was shown affidavits of persons from the Berrimah Corrections Centre who had deposed that while Mr Blacksmith was in custody they heard him say that he had lied in court because of pressure by the police. Mr Blacksmith denied the allegations by those persons and told police that what he had said in his statement of June 2000 was true.
[63] In addition to the fact that Mr Blacksmith’s version of October 2003 is contradicted by his statement of June 2000, his evidence at the committal proceedings in May 2001, his trial evidence in December 2001 and his declaration of 25 March 2003, the explanation given by Mr Blacksmith for not mentioning the presence of the complainant during his evidence at trial is utterly unconvincing. His claim that he was “confused” at the time of giving evidence at the trial is not supported by any other material. A reading of his trial evidence discloses no basis for a conclusion that he was confused. Quite the contrary; Mr Blacksmith answered the questions in a direct manner and, on the transcript, without any confusion or uncertainty. His answers were short and to the point. To the extent that his activities that evening coincided with those of Phyllis and Bruce, the evidence of Mr Blacksmith was generally consistent with the evidence of those witnesses.
[64] Mr Blacksmith has not attempted to explain why he did not mention the complainant in his statement of June 2000 or in his May 2001 committal evidence or in his statutory declaration of March 2003.
[65] For these reasons, in my view the fresh evidence found in the affidavit of October 2003 is not reasonably capable of belief and the application to call fresh evidence must fail.
[66] For the reasons I have given concerning the directions as to the use of lies, I would allow the appeal, set aside the convictions and order a retrial.
Riley J:
[67] I agree.
Priestley AJ:
[68] I also agree with the Chief Justice.

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