The Queen v Moore[1997] QCA 417

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 283 of 1997

Brisbane

[R. v. Moore]

THE QUEEN

v.

CRAIG WILLIAM MOORE

Appellant

Davies J.A.

Williams J.

Lee J.

Judgment delivered 21 November 1997

Reasons for judgment by each member of the Court; each concurring as to the order made.

APPEAL DISMISSED

REASONS FOR JUDGMENT - DAVIES J.A.

Judgment delivered 21 November 1997

The appellant was convicted of rape in the District Court on 19 June this year.  He appeals against that conviction on two grounds, both of which were substituted by leave for the grounds stated in the Notice of Appeal.  They are:

1. that the learned trial Judge erred in admitting statements made to investigating police officers by the appellant (which he admitted in evidence were lies) as being capable of amounting to evidence of consciousness of guilt and thereby corroborative evidence;  and that the learned trial Judge also erred in admitting evidence of a conversation between the appellant and the complainant to prove that three of the statements made to the police officers were lies;
2. that the learned trial Judge failed to properly direct the jury as to how to use such evidence admitted for that purpose - in particular he failed to identify the circumstances and events from which it could be said that the lies amounted to an admission against interest.

Although there was inconsistency between the complainant's version and the appellant's as to the time of day when intercourse occurred, it was common ground at the trial that it did occur on 17 July 1996.  The appellant contended that the intercourse was consensual.  Until some months before that date the complainant and the appellant had had a lengthy relationship including a period in which they cohabited.  He was the father of twins born to the complainant.  During the period of their separation prior to 17 July there had been some unsuccessful attempts to re-establish the relationship.  However in the latter part of that period there was plainly some ill-will between the parties.

The complainant made a complaint of rape to a friend, who gave evidence at the trial, on 17 July and on the following day made a complaint to police.  The complainant's evidence was that, although no substantial force was used, she resisted by words and conduct and had a tampon inserted at the time intercourse occurred.

On 20 July the complainant had a telephone conversation with the appellant which was tape recorded.  She reminded him that he "had sex with me, with me with the tampon" to which he replied "Yeah".  She told him, which was untrue, that, as the tampon was pushed "right up" she had to go to hospital, that it had not been possible to remove all of it and that there was a risk that she would die from toxic shock.

Also on a number of occasions during the conversation she accused him, in effect of rape, an accusation which he either admitted or did not deny.  She said:

"Well, I told you no.  I told you no, no, no over and over again."

to which he replied:

"Yeah, well."

She then said:

"Craig I said no a million times that night.  And you did it again in the morning and I kept saying no, no, no.  That's why I would not take the tampon out.  And you knew that because I wouldn't kiss you or anything and I was pushing you off.  ..."

He did not answer any of this but inquired when she was going into hospital.

This pattern of her accusations and his unresponsive replies was repeated.  She then said that she was thinking of going to the police which he, by his reply, appeared not to believe.  She then said:

"Craig, when a girl says no she means no."

and he replied:

"Ah, Melitta, ah, where's your witnesses and have you been going out with me for  how long, how many years?  They, you know, the police ... Oh they'll take me to the police.  They'll probably interview me and that will be it.  ... I'd just say ... but, ah, you said it would be alright."

After some further  accusations and unresponsive replies this exchange occurred.  He said:

"Oh, for goodness sake.  Look you didn't fucking stop me."

to which she said:

"I did so.  I was pushing and pushing.  You had me."

He then said:

"Okay, I know fucking when no means no with you.  I know a fucking no from you when you give me a fucking hit or a punch or something like that."

There were some parts of the tape which were unintelligible but there was nothing in it which could reasonably give rise to an inference inconsistent with that which could be drawn from the above passages.  His subsequent interview with the police must be viewed in the light of his admissions in this conversation and his expression of confidence that, after a false explanation from him, the police would not pursue the matter.

On the following day the appellant was interviewed by police.  During that interview, which was also tape recorded, the appellant, as he later admitted in evidence, told four distinct lies.  They were identified by the learned trial Judge to the jury as:

1. when told of the rape allegation he said that it was the first he had heard of it;
2. he said that the complainant had made no mention to him of a tampon;
3. he said that the complainant had not made any mention to him of an allegation of rape;  and
4. he said that he had not had sex with the complainant as recently as Wednesday morning which was 17 July.

He also said that he did not know the incident that the police were talking about.  He implied that she was making a late complaint because she was angry at his relationship with another woman.  And he said that it was a good week or week and a half since they last had sex.                It is the admission of these lies and the directions by the learned trial Judge with respect to their use that are the subject of the grounds of appeal.  The appellant submitted, in the first place, that the first three of those lies were incapable of being evidence of consciousness of guilt of any offence because they simply amounted to lies about what the appellant had been told by the complainant.  They did not, it was submitted, in any sense relate to the offence itself.  As to the fourth lie, whilst it was conceded that it was capable of demonstrating a consciousness of guilt, it was submitted that it was equally capable of demonstrating a consciousness of guilt in respect of injury inflicted by having sex with the complainant whilst she had a tampon inserted as with consciousness of guilt in respect of the offence of rape.

These submissions seek to compartmentalize answers given by the appellant in the course of what was one continuous conversation with a police officer.  The identified lies must be looked at in the context of the interview as a whole in order to determine the overall effect of what the appellant was saying and what he implied by what he said.  Looking at the interview as a whole the jury could reasonably have concluded that what he was saying and implying was that he did not have intercourse with the complainant on the occasion in question or at any time near then, that he had no knowledge of an incident of the  kind described by police and that the complainant, who might have been expected to do so, had never complained to him of any such conduct or, he said, complained to his parents.  The point about those lies, when contrasted with his defence at trial, is that they falsely denied any intercourse or complaint;  that is, they put up a defence inconsistent with that put up at trial.  For that reason the evidence of them was rightly admitted.

The alternative ground of appeal, based on the contended inadequacy of the learned trial Judge's direction on this matter, relies on Edwards v. The Queen (1993) 178 C.L.R. 193.  In that case three issues arose:  whether the answers given by the accused amounted to lies;  if so, whether they had any probative value;  and whether there was an innocent explanation for them.

The first of these issues does not arise here;  it was admitted that, in each respect, the appellant had deliberately lied.  Nor was it suggested that the learned trial Judge's direction on the third issue was inadequate.  However it was submitted that his Honour failed to sufficiently instruct the jury as to how these lies were "concerned with some circumstance or event connected with the offence":  Edwards at 210.  His Honour's direction on this issue here was in the following terms:

"The second point is that it must be a statement relevant to the offence with which the accused person is charged.  It must be a statement relevant to the offence with which the accused person is charged.  Well, we all have our sense of relevance, and you are the ones who are the jury so it is for you to decide whether those four alleged lies were relevant to the offence with which the accused is charged;  relevant to rape."

In Edwards the majority said at 210 that "the circumstances and events that are said to indicate that it constitutes an admission against interest" should be identified.  I do not think that they could be said to have been identified by the learned trial Judge in the above passage.  On the other hand, notwithstanding the submissions made for the appellant in this Court, I think it is self evident how the lies admittedly told by the appellant are concerned with some circumstance or event connected with the alleged rape;  they raise contentions about the rape charge - no intercourse and no complaint to him when one might have been expected - which are inconsistent with his contentions and admissions at the trial - intercourse but consensual;  complaints to him but unjustified.

This Court is left to speculate as to how this matter may have been dealt with in counsels' addresses to the jury.  Those addresses were not transcribed.  However there were very experienced counsel on both sides of this case and the question of the admissibility and use of these lies plainly assumed some importance.  It is most unlikely that the relationship between the lies and the offence was not dealt with in those addresses.  No re-direction was sought by counsel for the appellant in respect of this question.

Although, in my view, it would have been better for the Judge to have stated what this relationship was in the course of his directions it was so self-evident that his failure to do so could not have amounted to a substantial miscarriage.  In my opinion therefore the appeal should be dismissed.

REASONS FOR JUDGMENT - WILLIAMS J.

Judgment delivered 21 November 1997

I have had the advantage of reading the reasons for judgment prepared by Davies JA and I agree with them, and with the order he proposes. 

REASONS FOR JUDGMENT - LEE J

Judgment delivered 21 November 1997

I have read the reasons of Davies JA.  Whilst agreeing generally with his Honour’s reasons, I desire to add some comments of my own, particularly in relation to the second ground of appeal.

As pointed out by Mr Byrne QC for the respondent, there was never a contest at the trial that the four lies, be they four individual or four in context amounting to one large lie, were other than properly able to be left to the jury as being corroborative.  This was not disputed by counsel prior to the summing-up.  After the summing-up, when the lies were referred to by the trial judge, there was no complaint made in respect of the manner in which they were left to the jury.  Both counsel were very experienced, as indeed the extensive argument at the commencement of the trial indicates.

However, it has been long established that in an appropriate case, notwithstanding that a point was not taken below or a redirection sought, a substantive matter can be raised on an appeal if there is a risk of a substantial miscarriage of justice: Stirland v.  DPP [1944] A.C.315 per Viscount Simon L.C. at 328; R v.  Morgan [1978] 1 WLR 735 at 740A; The Queen v.  Wilson (C.A. 355 of 1994, 14 November 1994, unreported).  Nevertheless, the failure of counsel of experience to raise the matters now sought to be relied upon is not without significance. Of particular importance is the approach of counsel in addresses to the jury.

This is yet another example where counsels’ addresses have not been transcribed, and which may well have had a bearing on the approach of the learned trial Judge in his summing-up. I endorse the remarks of White J in R.  v Chevathen (C.A. 222 of 1997, 3 October 1997 unreported) where her Honour said that, “it might be a useful practice, engaged in by a number of Trial Judges, to have counsels’ addresses transcribed for future reference.  This would be a benefit where grounds of appeal other than that presently under consideration are raised.”.  That case involved a question of alleged improper balance in the summing-up.  It is obvious that addresses can be relevant to other grounds.  One can immediately see such an advantage in cases of some complexity such as the present where a direction in accordance with the strict requirements of Edwards v.  The Queen (1993) 178 CLR 193 was called for.  Other examples, not exhaustive, include cases involving complex identification evidence requiring a trial judge to give the strict directions in accordance with Domican v.  The Queen, (1991-2) 173 CLR 555, and also where the case is substantially circumstantial. 

I would go further and state that it is a desirable practice in all but the simplest of  cases, adopted by some trial judges, that at the end of the evidence and before addresses, special directions which arise on the evidence are canvassed with counsel.  Where the Crown is relying upon lies as an implied admission or as a circumstance pointing to guilt, the Crown Prosecutor should be asked to identify in type-written form before the commencement of addresses, the specific lies relied upon and the relevant circumstances and events that are said to indicate that the lies constitute an admission against interest.  Defence counsel should ensure that this is done.  This is essential in order that both counsel and the trial judge know precisely what is relied upon.  This obviously aids in addresses and in compliance with the strict requirements of Edwards v.  The Queen, in particular as laid down in the joint judgment of Deane, Dawson and Gaudren JJ at pp 208-211.  Those requirements have been reinforced by this Court in The Queen v.  Kirwin (C.A. 305 of 1993, 16 May 1994, unreported) and in The Queen v.  Thomas (C.A. No 319/320 of 1993, 5 May 1994, unreported). 

Where a Domican direction is required it is a good practice to request both counsel to highlight the various parts of the identification evidence which tend to support or derogate from the validity of the identification in order that both parties and the judge are fully aware of them and in order to assist the judge in ensuring that the strict requirements of a Domican direction are complied with.   Other instances spring to mind. 

Of course, such a practice does not replace a trial judge’s ultimate duty to give appropriate directions in all cases.  However, if such a practice were adopted, it would obviously tend to eliminate oversight and ensure that the trial is conducted properly and fairly, as well as tending to eliminate many grounds of appeal.  At that stage of a trial, there should be no fear of giving away any tactical advantage in addresses.  Nor should there be any hope that the trial judge may otherwise fall into error thus giving a ground of appeal.  As Viscount Simon said in Stirland at 328, “it is not a proper use of Counsel’s discretion to raise no objection at the time in order to preserve a ground of objection for a possible appeal.”  Cards on the table, at least at that stage, is surely the modern approach: cf s. 592A of the Criminal Code.  Of course, it is not suggested that in the current case, counsel deliberately failed to make any complaint or seek a redirection.

I agree with the reasons of Davies JA with respect to ground 1.  However, in my opinion, ground 2, has more substance.  It provides as follows:-

“That the learned trial Judge failed to properly direct the jury as to how to use such evidence admitted for that purpose - in particular he failed to identify the circumstances and events from which it could be said that the lies amounted to an admission against interest.”

The requirements of Edwards are extensive as the above pages of the majority judgment indicate.  However, for the purposes of this ground of appeal, the following passage in the joint judgment at 210, 211 is on the point:

“A lie can constitute an admission against interest only if it is concerned with some circumstance or event connected with the offence, (i.e., it relates to a material issue) and if it was told by the accused in circumstances in which the explanation for the lie is that he knew that the truth would implicate him in the offence.  Thus, in any case where a lie is relied upon to prove guilt, the lie should be precisely identified, as should the circumstances and events that are said to indicate that it constitutes an admission against interest.  And the jury should be instructed that they may take the lie into account only if they are satisfied, having regard to those circumstances and events, that it reveals a knowledge of the offence or some aspect of it and that it was told because the accused knew that the truth of the matter about which he lied would implicate him in the offence, or, as was said in  Reg. v.  Lucas (Ruth), because of ‘a realisation of guilt and a fear of the truth’”.

Counsel for the appellant submitted that even if the lies were relevant and properly admitted, the learned trial judge gave no assistance whatever to the jury in accordance with strict requirements of the above passage as to the way in which and the limits within which they could use those lies.  It was said that the High Court specifically recognised the dangers of the use to which lies might be put by a jury, unless the above requirements were strictly applied.  It was further said that the only assistance the learned trial judge gave was that they would be satisfied that the lies did constitute a consciousness of guilt (T4).  

With respect to the last of the four lies, Counsel submitted that his Honour could have said to the jury that it would demonstrate a consciousness of guilt or it could demonstrate a consciousness of guilt by showing an avoidance of sexual intercourse or avoidance of an admission of sexual intercourse on the very occasion when sex was said to have constituted rape and directed everybody’s attention back to an earlier occasion when there was no doubt consensual sexual intercourse occurred.  Yet he submitted that the trial judge could not have assisted the jury with respect to the first three lies because they could not be used in any way relevant to the offence.  As indicated, the submission that those lies were not relevant to the offence has been rejected by this Court.  This leaves a consideration only of Ground 2. 

After his Honour identified the relevant lies, he gave appropriate general directions in relation to statements out of court and the general requirements at pp. 116-117.  At p. 117-118 his Honour said:-

“The second point is that it must be a statement relevant to the offence with which the accused person is charged.  It must be a statement relevant to the offence with which the accused person is charged.  Well, we all have our sense of relevance, and you are the ones who are the jury so it is for you to decide whether those four alleged lies were relevant to the offence with which the accused is charged; relevant to rape;”

The summing-up then proceeded that the appellant’s lies were not on oath and that the jury must take into account any reason other than consciousness of guilt which might have prompted him to lie, in accordance with the usual type of directions.  Then followed a passage in the summing up (R118) which was the main basis of counsel’s complaint.  The trial judge directed the jury as follows:

“As the evidence has unfolded before us, you may think it is certainly open to you on this evidence, to conclude then on one or more, or even all of those occasions when he lied to the police, he did so quite deliberately and that he did so from a consciousness of guilt of this very charge.  It is certainly open to you whether you do so or not - it is a matter for you - to conclude that he did not lie from shyness, panic, blind fear, or even consciousness of being accused of causing harm by way of the tampon.  It is entirely a matter for you as to what you make of that.”

The submission continued that although the learned trial judge did not bother to identify how it could be done, his Honour made it fairly obvious to the jury that in his view the lies did demonstrate in fact a consciousness of guilt.  It was said that this was made worse by the omission to follow the directions referred to in the above passage in Edwards.             

I agree with Davies JA that the circumstances and events that are said to indicate that the lies constituted an omission against interest, were not identified by the learned trial judge in the above passages or elsewhere, as should have been done.  However, whilst I had some difficulty with this matter and my mind fluctuated,  I do not dissent from the conclusion arrived at by Davies JA and accordingly agree with his Honour’s reasons with  respect to Ground 2.  It cannot be said that the learned trial judge’s failure to strictly comply with Edwards amounted to a substantial miscarriage of justice in this particular case.  I accordingly agree that the appeal should be dismissed.