The Queen v Brennan[1998] QCA 163

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No.99 of 1998

Brisbane

[R v. Brennan]

THE QUEEN

v.

GRAHAM PAUL BRENNAN

Appellant

McPherson JA

Thomas J

Ambrose J

Judgment delivered 26 June 1998.

Separate reasons for judgment of each member of the Court, each concurring as to the orders made.

1. APPEAL AGAINST CONVICTION ALLOWED.
2. VERDICT BELOW SET ASIDE.
3. NEW TRIAL ORDERED.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No.99 of 1998

Brisbane

Before McPherson J.A.

Thomas J.

Ambrose J.

[R v. Brennan]

THE QUEEN

v.

GRAHAM PAUL BRENNAN

Appellant

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered 26 June 1998

I agree with Ambrose J., essentially for the reasons he has given, that there should be a new trial.

This was not a matter in which a direction along the lines authorised in Weissensteiner v. The Queen (1993) 178 C.L.R. 217 was appropriate.  It is not one where the absence of explanation from the accused strengthened any inference that he was one of those involved in the robbery or in depriving the victims of their liberty.  On the contrary, in the present case, the appellant himself gave evidence at his trial explaining or suggesting how his palm print or prints might have found their way on to the door of the safe in which the robbery victims were locked.  The result was to leave the jury with only one question, which was whether the explanation he gave in evidence raised in their minds a reasonable doubt about his guilt of the offences charged.

Since the issue so raised was essentially one of credibility rather than inference, the jury might well have wondered why the appellant had failed to call his wife as a witness to confirm the truth of his statement that he had previously been in the office in which the safe was located on which his prints were later found. It is possible to think of several reasons, some consistent with innocence on his part, why he might not have called her.  One would have thought that the most telling way for the prosecution to have made its point would have been simply to ask the appellant at the trial if his wife was available and willing to give evidence on his behalf.  If, although available, she did not do so, the jury might well have come to the conclusion that it would not have helped his case if she had given evidence.  Having regard to what was said in R. v. Buckland [1977] 2 N.S.W.L.R. 452, 458-459, such a conclusion was the permissible limit of the use that could properly be made of her failure to give evidence.  It was not legitimate to go the further step of suggesting that it tended to prove the guilt of the appellant.

Finally, I wish to enter a caution against the persistent reliance by prosecuting counsel on the phenomenon of lies by the accused as evidence of a consciousness of guilt.  As was decided in Edwards v. The Queen (1993) 178 C.L.R. 193, the telling of lies is something that in some instances is capable of being considered as circumstantial evidence amounting to an implied admission of guilt on the part of an accused person; but the directions needed in order to correctly explain the conditions in which it is available for that purpose are convoluted and not at all easy for a judge to give, or for a jury to understand.  The result often is to obscure rather than to simplify the issue to be determined.  That is particularly so in a case where, like this, the accused gave one account in his evidence at the trial, after having given another and contradictory statement at an earlier time.  In circumstances like that, the prior inconsistent statement simply forms a basis for doubting the credibility of his testimony at trial. His admission in evidence that he had told a lie about it on a previous occasion is a factor to be considered by the jury in deciding whether his testimony at the trial is credible.  It adds nothing to the process of assessing his credibility for the jury to be told that, if the explanation given at the trial of the falsity of his earlier statement is itself a lie, it may demonstrate a consciousness of guilt on his part on that or an earlier occasion.  If it was not itself a lie, it is no evidence at all of his guilt, which is the very question which the jury is asked to decide.

For these reasons, which are simply an expansion of some of what has been said by Ambrose J., I consider that the directions given in the summing up at the trial may well have served to distract the jury from the real question; which was whether the discovery of the appellant’s palm prints on the safe door identified him beyond reasonable doubt as one of the robbers who had locked the victims in the safe.  If, in the light of all the evidence including his own testimony at the trial and his explanation of his original denial of ever having been in the room in question, the answer to that question was Yes, then the jury would have been justified in finding him guilty.  Conversely, if after considering all the evidence they were left with a reasonable doubt, then they were bound to acquit.

The appeal should be allowed, the conviction and verdict set aside, and a new trial ordered.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No.99 of 1998

Brisbane

Before McPherson J.A.

Thomas J.

Ambrose J.

[R v. Brennan]

THE QUEEN

v.

GRAHAM PAUL BRENNAN

Appellant

REASONS FOR JUDGMENT -THOMAS J.

Judgment delivered 26 June 1998

I agree with the reasons of McPherson JA and of Ambrose J which I have had the advantage of reading.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No.99 of 1998

Brisbane

Before McPherson J.A.

Thomas J.

Ambrose J.

[R v. Brennan]

THE QUEEN

v.

GRAHAM PAUL BRENNAN

Appellant

REASONS FOR JUDGMENT - B.W. AMBROSE J

Judgment delivered 26 June 1998

On 19 March 1998 the appellant was convicted in a District Court on one count of armed robbery in company with actual violence and one count of deprivation of liberty.

The Crown case was that the appellant and another man each concealing his facial features by wearing a stocking over his head and each armed with a shotgun committed the offences at the Northern Suburbs Leagues Club at Nundah, Brisbane on 16 March 1996. The amount stolen was $7,024.

The count of deprivation of liberty was based on Crown evidence that after the robbery had been effected, three employees of the club were forced to go into a large safe situated in an office of the club and one of the robbers then pushed the door shut behind them and fastened it from the outside.

Shortly after the offences had been committed an anonymous telephone call was made to police officers advising of the commission of the offences and shortly afterwards, police officers investigating the scene found a finger-palm print on the outside of the safe door consistent with its being left by the offender who had pushed it shut after herding the three club employees into the safe.

One of the club employees was the wife of the appellant; she gave no indication to the investigating police officers that she recognised her husband as one of the offenders.

Apparently the very clear finger-palm print discovered on the door of the safe could not at that time be matched with any recorded prints.

Police investigations proved fruitless until apparently the appellant was arrested on 23 September 1996 on a number of drug related charges. It appears that his finger and palm prints were then taken and presumably when fed into the finger print recording system they were found to match the print left by a person thought to be one of the offenders who committed the offences on 16 March 1996 with which the appellant was charged.

In any event, the appellant was questioned by police officers about the offences on 5 January 1997 when fresh palm and finger prints were taken from him;  they also were found to match the print left on the door of the safe in March 1996.

When questioned by investigating police officers in January 1997 the appellant asserted firstly that he had never been in the office where the offences were committed on 16 March 1996. He admitted that his wife was at that time employed at the club where the offences were committed but said that although he had been in the club he had never been in the office. When it was pointed out to him that his palm-finger print had been found on the door of the safe located in the office he said that “someone must have used them”.

Unsurprisingly the investigating police officers interviewed the appellant's wife, Heather Oberle. She also told them that her husband had never been in the office because it was not permitted that persons other than employees enter the office. This evidence was not placed before the jury for reasons which will later emerge.

At committal proceedings held in 1997 the wife of the appellant was called to give evidence. She said on that occasion that in fact her husband had been in the office with her on one occasion while she was doing some work in the office by herself. This evidence was not led before the jury for reasons which will emerge.

At the trial the appellant gave evidence and said that indeed he had on occasion been in the office containing the safe with his wife while she was working. He denied that he was one of the offenders who had committed the offences charged.

It emerges from material placed before this Court that during the trial defence counsel asked the Crown prosecutor why the appellant's wife was not being called to give evidence upon his trial because she had been called to give evidence in the committal proceedings. The Crown prosecutor explained that when first interviewed she had told the investigating police officers that the appellant had never been in the office containing the safe and a transcript of this interview was handed to defence counsel. In the committal proceedings she had given evidence on oath that indeed on one occasion the appellant had been in that office.

In the conduct of the Crown case it was established from a club manager that members of the public were not allowed in the office containing the safe without managerial consent. Indeed counsel for the appellant also established in cross-examination that it was “an unspoken rule that staff shouldn't take anybody else into that room on occasions when they had to go in there”.

Another club employee was examined to demonstrate that he had never seen the appellant  (the “boyfriend” of Heather Oberle) in that office. In cross-examination of the general manager of the club, counsel for the appellant established that the appellant's wife had finished working at the club in June 1996 because of her pregnancy and when she finished she had been told that her job was always available for her if she wished to go back to work at the club.

The appellant gave evidence upon his trial. He then said that “on a couple of occasions” he had been in the office containing the safe. He said that he was in the office on occasions when his wife was working there and nobody else was then around. He said that he could in fact recall touching the safe while waiting for his wife to finish some paperwork. He said he went over to the safe “just out of inquisitiveness and I've turned the dial”. He said he could not remember putting his hand on the safe but he could have done so. He admitted telling a lie to the police officer interviewing him about being in the office when he claimed that he had never been in that office area. He said that in doing this “I was protecting my wife's future employment there or any other club for that matter”. He gave evidence that he had nothing to do  with the offences with which he was charged.             

In course of cross-examination the appellant admitted that his de facto wife had had two children since she ceased employment with the club and that the second child was born on 31 December 1997 and that he and his wife were still living together.

He also explained in cross-examination that it was his wife who had told him that she could get into trouble if it was discovered that he was in the office with her. In re-examination of the appellant his counsel established that his wife had been called by the police to give evidence upon his committal proceedings.

At the close of the case for the appellant and in the absence of the jury, the Crown prosecutor raised the application of the rule in Jones v Dunkel (1959) 101 CLR 298, in the light of the appellant having  not called his wife to give evidence concerning her knowledge of his being in the office containing the  safe on occasion for quite innocent purposes. He explained that the Crown took the view that the appellant's wife was “not a reliable witness” and for that reason had decided not to call her. He intimated that in his address to the jury he proposed to point out to them “it is quite appropriate for the jury to draw an inference adverse by the failure to call her by the defence”.

Counsel for the appellant submitted:

“The prosecution have to prove a man is guilty. He does not have to prove himself innocent. The evidence before the jury in this respect is that the police prosecution called her to give evidence in the lower court and she gave evidence and that the Crown also have a tape recording of what she had to say. The Crown haven't called her. I'll do exactly the opposite. So in my submission it is not really an appropriate case.”

Shortly after close of the submissions his Honour advised the Crown prosecutor in the following terms:

“... you are entitled to comment to the jury on the fact that the wife of the accused man was not called by him to give evidence. You must keep in mind of course that he is not obliged to call her. There is no onus on him to do so but the jury are entitled to consider the fact that she was not called in the light of the other evidence in the case. It appears she is available if necessary. So you can comment on that.”

In the course of his summing up, the learned trial judge pointed out that a palm-finger print had been found on the safe door shortly after the commission of the offence, and that the location of the print was consistent with application of a person's hand pushing the door closed. He pointed out that the palm print had been identified as portion of the right hand palm print of the appellant. His Honour then said:

“That you might think is strong evidence that he was in the office at some stage and that on an occasion he was in the office he put part of his right hand on the door of that large safe in the position indicated. ... You might also readily conclude that he was not a person who in the normal course of events would or should be in that office. In that situation clearly enough investigators would seek to ascertain whether he was ever in the office for a purpose or on an occasion unconnected with the robbery. Hence the interview which is video taped and you have the tape. It never reached the stage of any explanation during that interview as to why he might have been in the office, for he told the police officers that he had never been in the office. He did not know where the office was. ... After the interview he was arrested and charged. It is also in evidence that he was at some stage told that his print was found at the scene. When he was told that his response was someone must have used them. On that occasion he did not say to the police officer or officers who said that to him, who told him his print had been found at the scene that he had been in there and offer an explanation.

Now in evidence in court here he has said he has been in the office before the robbery and he also said that he recalled going over to the large safe on that occasion. He was in there he told you in evidence here whilst his wife - de facto wife Heather Oberle was doing some paper work a time sheet or something else ... What he told you here was that he deliberately lied to the police officers about being in there to avoid affecting Heather Oberle's chances of re-employment there or in another club.”

His Honour then continued

“The question for you members of the jury is are you satisfied beyond reasonable doubt that his palm print was put on the door when he was in the office on the night of the robbery. It is a conclusion available on the evidence. To reach it obviously you must reject his evidence here in court for if it leaves you with a reasonable doubt about the matter you cannot find him guilty.”

His Honour then continued to instruct the jury as to the consideration they could give to the fact that the appellant's wife had not been called to give evidence. It is this instruction upon which the first ground of appeal argued is based. He said:

“Now keep in mind that he does not have to prove that he is not guilty. There is no onus on him or duty on him to give or call evidence or to offer any explanation. If he does not give or call evidence or if he did not give or call evidence that is within his power to give or call you would not on that account conclude that he was guilty of the offence. However you may think in that circumstance you could more readily draw an inference of guilt available to be drawn from other evidence in the case.

If there is evidence which tends to show a person's involvement in a criminal offence and that person has it within their power to provide evidence of an innocent explanation but does not do so on any occasion when you might expect them to do so as a proposition of commonsense you may not must but may more readily infer that they were involved in the criminal offence.” [emphasis mine]

His Honour took pains to direct the attention of the jury to the absence of any persuasive eye-witness evidence identifying the appellant as an offender responsible for the offences which the Crown alleged against him. There were problems with eyewitness identification relating to the size of the two robbers and of course their identification was made difficult by the fact that the head and face of each were concealed by stockings.

In the light of the cross-examination of the appellant it may have crossed the minds of the jury that if he was one of the robbers his wife may have been involved in the commission of the offence. One might have thought that his de facto wife, having such a close relationship with the appellant, may well have recognised him as one of the offenders in spite of the fact that he had a stocking over his head - each offender spoke to the other during the robbery and deprivation of liberty of the three club employees.

In my view the Crown case was a strong one.

Undoubtedly it was open to the Crown prosecutor in addressing the jury to observe that the failure of the appellant to call his wife to support his explanation as to how his palm print may have been left on the safe door of the office on an occasion not at all connected with the robbery could be considered by the jury as indicating that the appellant did not think that any evidence she might give would assist him. This is the traditional direction given when the circumstances warrant any comment at all being made. There is no record of the submission made to the jury by the Crown prosecutor. However one would have expected that the learned trial judge would have given the traditional direction discussed by Street CJ in R v Buckland [1977] 2 NSWLR 452, 458‑459, where he observed:

“The inference which a court can properly draw in the absence of a witness, where such absence is not satisfactorily accounted for, is that nothing which this witness could say would assist the case of the party who would normally have been expected to have called that witness. The significance of this inference differs according to the closeness of the relationship of the absent witness with the party against whom the inference is sought to be propounded. ... At its highest, however, the inference does not ordinarily extend beyond a negation of favourable evidence from the absent witness. Failure to call a witness will not support a positive inference that the witness would have in fact given evidence damaging to the case of the party who omitted to call him.

... there is to my mind a significant possibility of differing meanings attaching to a comment along the lines that ‘nothing which these witnesses could say would assist the accused’ (which would have been a legitimate proposition) on the one hand, and on the other hand, to say, as did the judge, that their ‘evidence would not have been favourable to the accused’. An observation in these last-mentioned terms, ... is capable of leaving the jury with the impression that it can justifiably infer that their evidence would positively have been unfavourable to the accused.”

Buckland was applied in Browne Moorehouse & Blewitt (1987) 30 A Crim R 278 at 294‑5.

Had such a traditional direction been given in this case in my view the appellant could have made no complaint.

However the traditional direction was not given in this case. The direction actually given seems to be an adaptation of a direction of the sort considered in Weissensteiner v R (1993) 178 CLR 217.

At p. 227 of the report of that case after a consideration of a number of authorities, it was observed by Mason CJ, Deane and Dawson JJ:

“We have quoted rather more extensively from the cases than would otherwise be necessary in order to show that it has never really been doubted that when a party to litigation fails to accept an opportunity to place before the court evidence of facts within his or her knowledge which, if they exist at all, would explain or contradict the evidence against that party, the court may more readily accept that evidence. It is not just because uncontradicted evidence is easier or safer to accept than contradicted evidence. That is almost a truism. It is because doubts about the reliability of witnesses or about inferences to be drawn from the evidence may be more readily discounted in the absence of contradictory evidence from a party who might be expected to give or call it. In particular, in a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused.

Of course, an accused may have reasons not to give evidence other than that the evidence would not assist his or her case. The jury must bear this in mind in determining whether the prosecution case is strengthened by the failure of the accused to give evidence. Ordinarily it is appropriate for the trial judge to warn the jury accordingly.”

At p. 235 in the joint judgment of Brennan and Toohey JJ, it was observed:

“It is important that a trial judge should ensure, especially if any comment is made on an accused's decision not to give evidence, that juries do not use impermissibly the failure to testify. At the least, the jury must be told that the accused is not bound to give evidence and that the onus remains on the prosecution to prove guilt beyond reasonable doubt. The limited use which can be made of an accused's failure to testify is of special importance when the prosecution case depends upon the drawing of an inference of guilt from the facts proved directly by evidence. In such a case, the jury must not use a failure to testify as a fact, albeit in conjunction with other facts, from which they may infer the accused's guilt. If there is insufficient evidence of the facts from which an inference of guilt could be drawn, a failure to testify cannot supply the deficiency. But the jury may draw inferences adverse to the accused more readily by considering that the accused, being in a position to deny, explain or answer the evidence against him, has failed to do so.”

At p. 245 in the joint judgment of Gaudron and McHugh JJ, after a detailed consideration of relevant cases dealing with judicial comment on the failure of an accused person to explain, it is observed:

“Given that failure to explain can amount to evidence, albeit in limited circumstances, there is no basis for departing from the authorities which acknowledge that, in those limited circumstances,  it is appropriate to comment on the fact that particular evidence is unexplained or unanswered.

In the context of the right to silence, it is important to bear in mind that it is the failure to provide an ‘explanation or answer ... as might be expected if the truth were consistent with innocence’ which is of evidentiary significance and not the failure to give evidence as such. In many cases, an explanation can be offered without the giving of evidence: it may, for example, be advanced when the person concerned is first confronted with the facts or it may be advanced in the course of the trial without evidence from the accused. Moreover, the assumption that an innocent person would offer an explanation loses all relevance if there has not been a real opportunity to explain. ... Accordingly, directions should be given in terms of the unexplained facts, rather than in terms of the failure to give evidence or to meet the prosecution case generally ...”.

I can find nothing in Weissensteiner to support or justify the direction given in this case.

In this case, the appellant did offer an explanation as to how his palm print may have been innocently left on the safe door. The jury could consider that explanation in the context of the earlier denials by the appellant that he had ever been in that office or that he even knew where the office was.

Had the appellant elected not to give or call evidence, on the facts of this case, in my view, it would have been appropriate to give a Weissensteiner type direction because no explanation would have been forthcoming from the accused as to how his palm print may have got on the door without his involvement in the commission of the offences charged.

However, the accused having given an explanation by relating facts within his own knowledge in my view it became quite inappropriate for any direction along the lines of Weissensteiner to be given to the jury.

The challenged direction in effect deals not with the failure of the appellant to given an explanation. It could not do that because he gave one. It deals with his failure to call his wife to give evidence to support the explanation which he gave.

Had the appellant not given evidence then a Weissensteiner direction would have allowed the jury to draw an inference adverse to the appellant not by reason of his not having called or given evidence but by reason of his failure at any time to explain his palm print on the safe door because the existence of such an explanation might be thought to be peculiarly within his knowledge.

Even if such a direction had been given, it would not permit the jury to do more than consider the inferences that could more readily be drawn from the circumstantial evidence tending to prove guilt than might otherwise be the case if an apparently inculpating circumstance were explained by the accused in a way showing it to be  consistent with his innocence.

The direction about which the appellant complains may have been based upon a couple of words in the judgment of Mason CJ, Deane and Dawson JJ at p. 227 of the report of Weissensteiner. Their Honours there referred to principles that might be extracted from their survey of both criminal and civil cases when they observed -

“It is because doubts about the reliability of witnesses or about the inferences to be drawn from the evidence may be more readily discounted in the absence of contradictory evidence from a party who might be expected to give or call it.” (my emphasis)

One must keep in mind that a corporation in either civil or criminal proceedings is unable itself to “give” evidence. It may often only “call” evidence from persons who are its agents - even if they constitute its “governing mind”.

In my judgment it would be to take those three words completely out of context to treat them as authority for the proposition that the failure of an accused person to call a witness which the jury think he or she may have been able to call may either cast doubt upon the reliability of the evidence which he or she has given on oath or “more readily discount” doubts about adverse inferences which the jury may otherwise be prepared to draw upon the whole of the evidence.

Essentially in my view the direction challenged offends against the basic principle that there is no onus on an accused person to call evidence upon the issue of his guilt.

Against the background of the evidence called upon the appellant's trial including the fact that his wife had given evidence on committal proceedings and was at time of trial living with him, the direction about the “failure to call evidence” could only sensibly refer to his failure to call his wife to support his evidence about how his palm print may have been left innocently on the safe door.

In my view the direction which suggested that the jury could more readily draw an inference of guilt from the appellant's failure to call his wife to give evidence is fundamentally flawed and contrary to a basic rule applied in the administration of the criminal law.

It was open to both the Crown and to the appellant to call the appellant's wife. It was established clearly enough that she had been called to give evidence on the appellant's committal proceedings.

On the material before the jury, in my view, it could have been said on behalf of each of the Crown and the appellant that the failure of the other to call the appellant's wife permitted the jury to infer that her evidence would not have assisted the other side in the determination of the issue of the appellant's guilt.

There is no record of the addresses of the Crown prosecutor or of counsel for the appellant. The learned trial judge summed up to the jury on the basis that it was only the appellant's failure to call his wife as a witness which might be a relevant consideration. In my view this was incorrect. The failure by the Crown to call her was, on the evidence, just as relevant.

The second ground of appeal argued was the weight or effect that the jury could give to lies which the appellant admittedly told to the police about his never having been in the office where the safe was kept or indeed about his even knowing where the office was. His Honour gave a direction in these terms:

“Now the accused man in his evidence has said or admitted to you that he lied to the police. He had offered an explanation why he lied in his evidence here during this trial. You will obviously consider what motivation he would have to lie about being in the office when the police were speaking to him. A possible explanation may be as he has said that he did not wish others to know his wife had let him in the office.

As experienced people you no doubt would know that unless a person is a chronic liar and simply lies for the sake of it, there is usually a reason behind the lie. What other reason might there be for lying to the police.

...

Look at the questions the police asked him. You may think it would have been fairly obvious at some stage during the interview that the police were at least thinking about him as a possible suspect.

If he was involved in the robbery was there any reason on that account to pretend he had never been in the office and that he did not know where it was? The Crown says or argues to you that there is. It argues to you the reason is a guilty mind and a desire to distance himself from ever being in the office because he had been involved in the robbery. That is the proposition the Crown puts to you. The accused man as I have already said proffers an explanation that he did not wish others to know that his wife had let him in the office and that is why he lied.”

Upon the retirement of the jury, counsel for the appellant sought a redirection with respect to the effect that might be given to the lies told by the appellant to the police when they interviewed him. In addition to the possible reasons canvassed in the summing up to which I have referred, counsel argued:

“He knew from subsequent events that there was a robbery involved and he was trying through stupidity to distance himself from any possible suspicion regarding the robbery.”

To this submission the learned trial judge observed:

“Doesn't that invite speculation? Because the point is your client has given evidence and advanced the reasons why he lied. In that circumstance why should I in effect say to the jury that even though he's told you or offered an explanation why he has lied, you can conclude that he is lying again and that there's a different explanation but he hasn't said what it is. Isn't that inviting speculation?”

His Honour then declined to redirect the jury along the lines generally given - particularly when an accused person does not give evidence.

In R v Lucas [1981] QB 720 at 724, Lord Lane CJ observed when considering the nature of a lie told out of court capable of corroborating other evidence against an accused:

“The jury should in appropriate cases be reminded that people sometimes lie, for example, in an attempt to bolster up a just cause, or out of shame or out of a wish to conceal disgraceful behaviour from their family.”

In R v Heyde (1990) 20 NSWLR 234 the New South Wales Court of Criminal Appeal pointed out that there must be a close nexus between the lie and the matter in issue upon trial to such an extent that the lie can be considered as “an implied admission proceeding from a consciousness of guilt”. It was pointed out that in many cases it would be inappropriate for a jury to consider out of court lies as corroboration. The warning to juries of possible explanations for lies suggested in Lucas was approved.

Clarke JA, with whom the other two members of the Court agreed, observed at 241-242:

“Broadly speaking lies told by an accused may be used in a trial in two ways. First, in limited circumstances they may add to the prosecution case, whether as corroboration or as affirmatively strengthening the case. Secondly, and more usually, on the issue of the accused's credibility - they may help the jury to decide whether to accept or reject the evidence given, or statement made, by the accused: R v Toia (at 559). In general a false denial that a fact occurred does not provide positive evidence that it did occur.

...

But, as has been pointed out, statements made by an accused, whether in or out of court, which are capable of being regarded as deliberate lies may in strictly limited circumstances provide evidence which the jury may find corroborates or strengthens the prosecution case.

...

This it has been held, will occur only where it is open to the jury to infer that the lie was told because of a fear of the truth or a consciousness of guilt.

...

An accused person may give inconsistent answers or tell a lie for a variety of reasons none of which would permit of the lie being used as corroboration. For instance, he may become confused; he may tell a lie out of panic or fear, to improve his case, to escape what he regards as an unjust accusation or to hide misconduct which is not the subject of the charge under consideration. For this reason in a great many cases it will be impossible to infer a consciousness of guilt from the nature of the lie or the circumstances in which it occurred.”             

In Edwards v The Queen (1993) 178 CLR 193 Deane, Dawson and Gaudron JJ observed at 211 that a lie told out of court is capable of amounting to corroboration only if the jury “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”.

In Edwards it was observed that a trial judge should instruct a jury that there may be reasons for telling a lie apart from the realisation of guilt. Their Honours continued:  “A lie may be told out of panic, to escape an unjust accusation, to protect some other person, or to avoid a consequence extraneous to the offence.”

The onus is on the Crown to eliminate any reasonable possibility that the lie may have been told for a reason other than the realisation of guilt - see in this respect R v Small (1994) 33 NSWLR 575 at 595 per Hunt CJ at CL.

If the lie is relied upon only to discredit the accused should he give evidence - that is as merely going to his reliability as a witness then it may well not be necessary to warn the jury as indicated in Lucas and Edwards. In a case where the lie cannot be regarded as evidence of a consciousness of guilt and so satisfy the tests referred to in Lucas, Edwards and Small and there is a danger that the jury may regard them in this light, the trial judge should direct the jury that the lies proved against the accused only go to his credit and reliability as a witness and are not to be used as evidence of  an implied admission as to guilt - see R v Renzella [1997] 2 VR 88 at 92 l.20.

The effect of the summing up on the lie told by the appellant was that on the one hand the Crown argued that the reason the lie was told:

“was a guilty mind and a desire to distance himself from ever being in the office because he had been involved in the robbery. On the other hand, the appellant was said to have proffered an explanation that he did not wish others to know that his wife had let him in the office and that is why he lied.”

The learned trial judge had concluded that because this was the only explanation offered by the appellant it was unnecessary for him to give the more general direction referred to in Lucas, Edwards, Small and Renzella.

In R v May [1962] Qd R 456 the Court of Criminal Appeal in this State stressed the necessity for warning a jury in relation to a false denial that it had very slight weight as corroborative evidence.

In my view on the facts of this case to the extent that the lie told by the appellant had a sufficient nexus to the matter in issue - his presence in the office at the time of the robbery and his participation in it - if the Crown did as the learned trial judge said in his summing up argue that the reason for the lie was a guilty mind and a desire to distance himself from ever having been in the office because of his involvement with the robbery, then the jury should have been given the traditional warning to which the authorities, to which I have referred, advert.

It is clear on the whole of the evidence that there was no eyewitness identification of the appellant as one of the robbers. The only evidence connecting him with the robbery was his palm print found on the outside of the safe door. The lie he told to the police when questioned about his involvement in the robbery was directly related to his presence in the office at the time of the robbery. The jury were invited to consider that evidence as evidence of a consciousness of guilt or perhaps as an admission of guilt by conduct (to use the approach adopted in Edwards and Small).

In those circumstances, in my judgment, the jury should have been given a warning along the lines of that referred to in Lucas and Edwards and should have been told that in considering the appellant's evidence offering an innocent explanation for his palm print being found on the door, it was entitled to keep in mind that he had admittedly told a lie to police officers investigating his involvement in the offence and that this went to his reliability as a witness.

Because the jury were invited to consider whether the lie evinced a consciousness of guilt they should also have been warned that quite apart from the explanation the appellant gave for telling the lie in the witness box, they ought also be satisfied that if he did have a “desire to distance himself from ever being in the office” he had that desire not because he wanted to “bolster up a just cause” to use the words of Lord Lane CJ in Lucas or because he was in panic or confused, but because he had been involved in the robbery.

Were the only misdirection the one relating to the out of court lies told by the appellant, it might not be necessary to set aside the conviction. The authorities indicate that an inadequate direction on the weight to be given to an out of court lie will not necessarily lead to a conviction being upset. I refer to Renzella [1997] 2 VR 88 at 92. One must look at the strength of the whole case against an accused and balance the effect of the inadequate direction on the out of court lie with the weight of the evidence generally.

In this case however, in my judgment, the misdirection as to the jury's ability to infer guilt from the failure of the appellant to call his wife to support his evidence on the innocent explanation for his palm print being found on the safe door amounts to such an impermissible extension of the Weissensteiner direction that with some regret, having regard to the evidence led in the case, I conclude that the appeal must be allowed, the verdict set aside and a new trial ordered.