The Queen v Lee[1998] QCA 227

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 438 of 1997.

Brisbane

[R  v.  Lee]

T H E     Q U E E N

v.

STEVE LEE

 Appellant

Davies J.A.

Pincus J.A.

Ambrose J.

Judgment delivered 18 August 1998

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

APPEAL AGAINST CONVICTION DISMISSED

CATCHWORDS: CRIMINAL LAW - murder - appeal against conviction - circumstantial case - where no evidence as to the manner of the victim’s death, nor any direct evidence that he was dead - whether the summing-up was biased and unfair - whether judge should have discharged the jury when evidence of the finding of a loaded rifle in the appellant’s premises was admitted when it had been agreed that that evidence was not material - where counsel for the appellant was instructed not to apply for discharge of the jury - whether evidence that at relevant times the appellant was wanted on a warrant for fraud in China was wrongly admitted - whether judge put the defence case as one which depended upon discrediting the Crown witnesses rather than being put as a positive case - whether judge correctly commented upon appellant’s failure to attempt to locate a witness who could clear the appellant - lies - whether judge did not identify the lies which could be considered by the jury - whether judge did not distinguish between lies which went only to credit and those which went to proof of guilt - whether judge did not tell the jury that proof that a lie was told by the appellant did not establish the truth of any proposition contrary to the lie - consideration of relevant directions to the jury regarding lies.

Edwards (1993) 178 C.L.R. 193

George Smith (C.A. No. 4 of 1997, 9 May 1997)

Counsel:  Mr B Butler Q.C. with him Mr F H Martin for the appellant.

Mr D Bullock for the respondent.

Solicitors:  Legal Aid Queensland for the appellant.

Director of Public Prosecutions (Queensland)  for the respondent.

Hearing date:  20 April 1998.

REASONS FOR JUDGMENT - DAVIES J.A.

Judgment delivered 18 August 1998

I have read the reasons of Pincus J.A.  I agree with his Honour's conclusion that the appeal must be dismissed.  I also agree, other than in respect of the appellant's criticism of the learned trial judge's direction on the use to be made of lies by the appellant, with his Honour's reasons for rejection of the appellant's arguments.  As to the last matter, whilst I agree in substance with much of what his Honour has said about the majority judgment in Edwards^[1], I propose to express  briefly my own reasons for agreeing with his Honour's conclusion.  In doing so I adopt his Honour's analysis of the relevant facts.

In this Court the appellant's counsel made two criticisms of the learned trial judge's directions as to the use to be made of the appellant's lies.  They were:

1. that he failed to direct the jury specifically as to lies relied on to prove guilt with two consequences;  the first a danger that the jury may have failed to distinguish lies capable only of affecting credit from those capable of proving guilt;  the second that they may have used evidence given by Chen of lies by the appellant to corroborate Chen's evidence;

2. that he did not direct them that the fact that the appellant had lied did not, of itself, establish a specific contrary proposition.

In both respects the appellant relied on the majority judgment in Edwards.

It is by no means clear to me that his Honour failed adequately to direct the jury as to the lies which were capable of being probative of guilt.  After stating and explaining that, to be probative of guilt, lies must be deliberate, relate to a material issue and have, as their reason, a realization of guilt and fear of the truth with respect to the offence (the first three requirements stated in Lucas^[2]) his Honour referred to lies admitted to by the appellant and the appellant's excuse for them - his concern about his status as an illegal immigrant - and specified in the context of admitted lies which may be probative of guilt only the appellant's denial of living in Brisbane at the material time, inviting the jury to consider whether that lie could be explained by that concern.  His Honour then said that lies relied on for this purpose, other than admitted ones, must be proved by evidence from an independent witness (the fourth requirement stated in Lucas) and referred in that context only to the appellant's denial of a discussion with the deceased of the latter's proposed marriage to a Vietnamese girl and the production by the female accused of T‑shirts for that purpose, the evidence of which came from Chen.

So in the context of his discussion of lies which may be probative of guilt his Honour mentioned only the admitted lie that the appellant had not lived in Brisbane and the disputed lie that he knew the deceased and had had a meeting with him about marrying a Vietnamese girl.  It is true that he referred to "other matters which you think may be lies" but only in the context of matters which the jury might take into account in approaching the task of deciding whether the admitted lie to which he specifically inferred was explicable by reference to the appellant's excuse for it;  that is, on the issue of credit.

Perhaps of greater concern is the fact that his Honour's references to specific lies could in each case, have been taken to be merely examples of lies which were capable of satisfying the essential requirement of having been told because the accused perceived that the truth was inconsistent with his innocence.  But Mr. Bullock, for the respondent, who was also trial counsel for the Crown, submitted that, at trial, he urged, as a lie probative of guilt, only the appellant's denial that he knew and met the deceased at the material time.  So it could have been reasonable for the jury to construe his Honour's directions on this question as confined to the two lies which he specified both of which went to that issue.

It is, in my view, fanciful to suggest that the jury would have used Chen's evidence of the meeting with the deceased, and consequently the appellant's false denial of the meeting and what was said there, to corroborate Chen's evidence.  Nothing was said to them which would encourage such circularity and it is not something which would occur to a jury as a matter of commonsense.  There can be no basis for suggesting that his Honour's directions gave any encouragement to the jury to accept Chen's evidence because the appellant falsely denied it.

The task which the appellant would, in retrospect, have imposed on the learned trial judge, but which his counsel did not seek to impose at the trial, of identifying all alleged lies, distinguishing between those in respect of which the jury might think the appellant perceived truth was inconsistent with his innocence and those of which they might not think that, and then between those admitted and those denied but which they might think otherwise proved and, in the second case between those which might be an indispensable link in the chain of evidence necessary to prove guilt and those that were not, was a difficult task and one likely to confuse the jury.  Given the complexity of that task and its scope for confusion, where, as occurred here, the appellant gave evidence, I agree with Pincus J.A. that it would have been better for the trial judge to direct, in respect of all of the lies, only that they might affect the appellant's credit rather than prove guilt.  But it does not follow, where that was not done, that there has been a misdirection amounting to a miscarriage of justice.  I am not satisfied that in this respect his Honour's direction was inadequate.

Equally importantly, in considering whether there was any miscarriage of justice, is the interest which the appellant had at the trial in any such direction being given.  It is obvious that this was a case, like many others, in which the more lies were referred to, whether in counsels' addresses or the trial judge's directions, the more the jury were likely to convict.  Consequently it was in the appellant's interest not to encourage the trial judge to discuss lies in detail.  That may well explain the failure by the appellant's counsel to seek to have his Honour say anything further on the topic of lies.  Plainly such a direction would have made it more likely that the appellant would have been convicted.

The second criticism is, in my view, also unfounded.  After discussing the two lies to which I have already referred his Honour repeated the four requirements identified in Lucas, saying:

"Well, if you are prepared to draw the inference that there were lies told by the accused deliberately, that they relate to material or core issues in the case, that the evidence that they are lies comes from an independent witness, then you move on to consider the question of whether you are satisfied that the motive for the lie was a realisation of guilt and fear of the truth in respect of the offence of murder, and no other offence.  To reach that conclusion, you have to exclude any other explanations that may be reasonable possibilities.  It is a matter for you to resolve that issue."

The second last sentence in that direction appears to be, as Pincus J.A. pointed out in another context, unduly favourable to the appellant.^[3]  But that and the earlier discussion confined the jury's attention to those lies which arguably went to establishment of a contrary proposition, namely guilt.  And his Honour had earlier invited the jury to consider whether the only arguably innocent explanation given by the appellant for lies which he had admitted - concern about his immigration status - was an adequate one.  In the circumstances I do not think it was necessary to tell them, as well, that a lie did not, of itself, establish a contrary proposition.

Again, equally importantly, to go through all alleged lies, admitted and contested, to analyse which arguably did and which did not establish a contrary proposition was simply to highlight both their number and their incredibility and consequently make it more likely that the appellant would be convicted.

In appeals where arguments of this kind are advanced, the way in which the trial was conducted and the likely reasons for that conduct are of considerable significance in determining whether there has been a miscarriage of justice.  Here it is likely that the absence of directions, now said to be misdirections, was the result of a deliberate choice by defence counsel in the belief, which in my view was quite reasonable, that it was in his client's interest not to seek redirections.

Accordingly there has been no miscarriage of justice by reason of any directions or the absence of any directions on these matters.

I agree with the order proposed by Pincus J.A.

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 18 August 1998

The appellant and Jenny Lee were tried jointly in the Supreme Court, each being charged with having murdered Shi Feng.  The appellant was convicted of murder;  Jenny Lee was acquitted.  The Crown case against the appellant was that he came to Australia using the passport of one of Jenny Lee’s brothers, then used the passport of another of Jenny Lee’s brothers to establish a false identity here, then killed Shi Feng to obtain a more secure false identity.

The Crown had no evidence whatever as to the manner of Shi Feng’s death nor, indeed, any direct evidence that he was dead.  The whole case was circumstantial.  In outline, the Crown’s evidence was as follows:

The appellant used the passport of Vasily Boikov to come to Australia, illegally, in 1989, accompanied by his co-accused Jenny Lee who was Vasily Boikov’s sister.  After arrival here the appellant, whose real name is Li Qiang, obtained a passport in the name of Steve Lee using the passport of Paval Boikov, another brother of his co-accused. (The evidence showed that the appellant was also known as "Mr Chen").  On 27 October 1990 there was a dinner party held at the Brisbane residence of the appellant and his co-accused, at which were present Shi Feng and a man called Tom Chen.  It was said, by Tom Chen, that the appellant knew Shi Feng well at that stage.  There was a discussion, the evidence relating to which is hard to follow in the record, about Shi Feng being introduced to a Vietnamese girl and marrying her.  It was said in the course of that discussion that Shi Feng’s passport was to be sent to that girl’s father, who wanted to examine it because  he had been tricked before.  The Crown case was that in fact the appellant obtained that passport.  Shi Feng borrowed money ($1,500) from Tom Chen to buy a gift for the Vietnamese girl and the appellant said that he and his co-accused were to travel to Sydney, where the Vietnamese girl lived, in a few days, with others.

Eight or nine days later, on 4 or 5 November 1990, Tom Chen and Shi Feng had a conversation in Brisbane in the course of which Shi Feng said that he was going to the appellant’s place and, the next day, was going by bus to Sydney.  He also told Tom Chen that he would soon return and, once he got his passport back, he would repay Tom Chen the sum he had borrowed from him.  Tom Chen said that Shi Feng left him on the morning of 5 November 1990 and there was evidence from a Mrs Huang that she took the appellant and his co‑accused to a bus terminal about the same time;  there was, however, a dispute as to the date on which this occurred.  Subsequently, Tom Chen telephoned the appellant and his co-accused, who were then in Sydney, inquiring without success as to the whereabouts of Shi Feng.  On 29 November 1990, a few weeks after Shi Feng was according to the Crown case last seen or heard of, the appellant, using Shi Feng’s name and passport, had the name Shi Feng changed to David Lu and 12 days later applied for permanent residency in the name of David Lu.  On 3 July 1991 the Department of Immigration requested from "David Lu" a valid passport and also a penal certificate from China, but the response (from the appellant) was a forged penal certificate and in addition Shi Feng’s passport.  The department made a further request for a penal certificate in August 1992;  subsequently the appellant wrote to Shi Feng’s father asking that a penal certificate relating to Shi Feng be sent to his co‑accused. There was a meeting between the appellant, his co-accused and Tom Chen in 1991, at which Tom Chen inquired after Shi Feng and was told that, after Shi Feng arrived, in Sydney the Vietnamese girl’s relatives had "fetched him away".  Shi Feng’s father gave evidence that he had last heard from his son in mid-October 1990;  Tom Chen had not heard from him since Shi Feng left Brisbane early in November 1990.  No‑one else had been found who had heard from Shi Feng, nor had he withdrawn any money from a bank account in his name.  No record was located evidencing his having married, died or left Australia (as Shi Feng) after 25 October 1990.  There was nothing to suggest that he had any reason to disappear, his visa having still some time to run.  On 10 November 1993, police found at premises occupied by the appellant and his co‑accused a vaccination card in the name of Shi Feng.  When interviewed by the police the appellant told what were admitted to be numbers of significant lies.  Listening devices in those premises were alleged by the Crown to have recorded statements amounting to admissions by the appellant that he knew that Shi Feng was dead and that the appellant had killed him.

The appellant’s case was that he did not know Shi Feng nor Tom Chen, or at least did not remember having met them.  As to the conversation which I have mentioned, in which according to the Crown case the sending of Shi Feng’s passport as mentioned above was discussed by the appellant, it was said by the appellant that he had been too drunk to remember what happened then.  The appellant admitted having used Shi Feng’s passport as alleged, but said that he got it, not from Shi Feng, but from an immigration agent called Yeng Xiao Ming;  that person, if he existed, could not be found.

It is unnecessary to go into any more detail as to the facts, since the first ground taken in the notice of appeal, that the verdict was unsafe, has been abandoned.  I would merely add that in my view that ground has no substance;  there was evidence, if accepted by the jury, to warrant the inferences which the Crown urged should be drawn:  that Shi Feng was dead and that during the period alleged in the indictment (26 October 1990 to 30 November 1990) Shi Feng was murdered, the appellant being a party to that murder.

I propose to deal with the appellant’s arguments in the order in which they were discussed before us.

The second ground of appeal was that the summing-up was "biased and unfair".  Mr Butler S.C. who appeared for the appellant did not press that as a submission, but argued in effect that the judge’s discussions of the evidence, in general, over-emphasised the strength of the Crown case and did not sufficiently draw attention to the answers which were made by or on behalf of the appellant.

Consideration of such a ground involves a study of the judge’s directions, as a whole, and its fate depends on the impression so gained.  In my view the directions would have been likely to make the jury think that the judge regarded the Crown case as having considerable strength;  but it would be going too far to say, as was said before us, that his Honour’s directions could have overawed the jury.  It was repeatedly emphasised in directions given that the inferences to be drawn were a matter for the jury, not for the judge, and that the Crown case had to be proved beyond reasonable doubt.  For example, his Honour told the jury in effect that, to succeed on the basis of circumstantial evidence, it would be necessary for the Crown "to exclude all reasonable possibilities consistent with [Shi Feng] being alive", and no complaint was made about the strength of that.

By way of illustration of the inadequacies in the judge’s directions, under this heading, Mr Butler said that the judge should have, but did not, draw the jury’s attention to a certain letter written by Shi Feng which became Exhibit 19, and to a letter written by Shi Feng’s father, Exhibit 25.  Shi Feng’s letter, written to his family in Shanghai, refers to recent deportations of Chinese students - that being, it appears, a matter which concerned him.  However the letter deals with many diverse subjects, of which that was only one.  The same comment applies to another point which Mr Butler relied on, that the letter mentions briefly the possibility of the writer going to Canada.  A point with more substance is that the judge did not refer to Shi Feng’s father’s letter, Exhibit 25, saying "we believe he had gone underground because he could not afford the education fees".  That this, not long after his son disappeared, occurred to the father as an explanation was no doubt a point made by the defence at the trial.  But by the time the father gave evidence, six years after the letter in question was written, he had no reason to think his son had merely gone underground;  the evidence was to the effect that the son had been a regular correspondent and had also phoned his family once a month.  The father did not hear from his son after October 1990.

Another criticism made by Mr Butler, under this heading, was the judge’s treatment of evidence called from a place at which Shi Feng had been taking lessons, the Lorraine Martin Academy.  Rolls marked at that institution, as the judge pointed out, showed him as having been present after, according to the Crown allegation, he had been murdered - i.e. after 30 November 1990.  The judge dealt with this issue at two places in the summing-up, but did not discuss in detail evidence relating to the accuracy of the Lorraine Martin Academy rolls.  His Honour said, among other things, with reference to the records:

"I won’t go over the detail of how the documents that are in evidence were created;  you have heard all that".

His Honour added, a little later, a reference to evidence about "potential causes of error in rolls".  There was no request for a redirection on this subject.

The question whether the judge should properly have said more about the evidence just alluded to depends in part on the way in which it was discussed in the addresses of the three counsel who appeared at the trial.  The judge took the course of summing-up at less than oppressive length (the record of his summing-up covering 87 pages) in a long trial which produced a record well over 2000 pages in length.  It was not essential for the judge to deal in detail with every issue;  it appears that his Honour preferred to draw the jury’s attention, with respect to factual matters, to the scope and general character of those issues, rather than to full details of the evidence and arguments relating to them.  Particularly having regard to the absence of requests for further directions on, for example, the correspondence which I have discussed, I am far from satisfied that the omissions relied on were such as to make the summing-up unfair.

There was, next, a complaint about admission of evidence of the finding of a loaded rifle in premises where police located the appellant and his co-accused.  In discussions between counsel and the judge, it had been agreed that that evidence was not material, but a witness, Det. Snr Constable Belo, gave evidence that it was found at those premises.  The agreement on the matter seems to have been overlooked;  a number of questions about the rifle were answered, without objection then taken.  A little later, counsel for the appellant asked that the jury be discharged, because of the evidence I have mentioned.  After an adjournment, counsel for the appellant announced that he was instructed not to apply for discharge of the jury and that the prosecutor had agreed to a "formula" acceptable to the defence.  In consequence of that agreement, the prosecutor told the jury, before Det Snr Constable Belo proceeded further with his evidence:

"there is no suggestion that that gun has any relevance in this case whatsoever and the Crown also says that it should not be used in any way in any deliberations of this case".

Mr Butler submitted that, although discharge of the jury was not in the end asked for, the judge should have declared a mis-trial.

There was no suggestion before us or below that the references to the rifle were introduced deliberately, in breach of the concession the Crown had made;  further, the defence were content to have the matter run on, for some weeks of evidence and addresses, to a conclusion, and should not now be held entitled to a new trial on this basis.  The only way in which the point can be used, in my opinion, is as supporting a contention made on other grounds that there was not, on the whole, a fair trial.

A second point in the same category is a complaint that the defence was "effectively forced" to bring out that the appellant was in custody since his arrest on the charge of murder.  The line of argument was that questions asked of the appellant, by the prosecutor and the judge, suggested that the accused might have been expected to, but had not, taken steps to locate one Yeng Xiao Ming.  The principal importance of that name was that (according to the appellant) it was from Yeng that the appellant obtained Shi Feng’s passport.  The Crown case was of course that the appellant obtained that passport after participating in Shi Feng’s murder.  The appellant’s counsel argued that the questioning I have mentioned effectively forced defence counsel to have the appellant reveal to the jury that he had been in custody since his arrest.  It is unclear to me what it was that the appellant’s counsel argued should not have happened;  it was not specifically put to us that questions should not have been asked of the appellant on the basis that one might have expected him to take steps to locate Yeng.  But in any event, there is, as it seems to me, nothing in the point.

Next, Mr Butler argued that evidence that at relevant times the appellant was wanted on a warrant for fraud in China was wrongly admitted.  Mr Butler argued that this prejudicial evidence, although relevant, need not have been adduced before the jury, because all that the Crown reasonably needed could have been obtained by accepting a proffered admission that there was good reason for the appellant not to return to China.  It being accepted that it was material for the Crown to prove that the appellant had a very strong reason not to go back to China, the question is whether what the defence offered adequately covered that point.  What was in fact offered was an admission that ". . . he has a strong motive for not returning to China.  I will get instructions, but I am sure we will agree he doesn’t want to go back to China".  Counsel for the accused below went on to say, in effect, that the accused’s reason for not wanting to go back was related to apprehension of being executed for political activity.

Consideration of the matter is complicated by the fact that there was evidence of statements made by the appellant, from which an inference could be drawn that he proposed to assert, falsely, that his difficulties in China related to political activity.  If the Crown had been prevented from leading evidence as to the true reason why it was important to the appellant not to return to China, then that would have made it easier for the jury to accept what may well have been a false reason, given by him.  In my opinion the judge was right to let in evidence of what the Crown said was the true reason, although it was a reason which would tend to make the jury think less of the appellant than that relating to political activity.  I note that the judge told the jury that they could not use the evidence I am discussing as indicating bad character.  In my opinion the judge properly exercised his discretion to let in the evidence in question.

Mr Butler’s next argument was a further attack upon the judge’s directions, to the effect that his Honour put the defence case as one "which depended upon discrediting the Crown witnesses rather than being put as a positive case . . .".  Mr Butler contended that such an approach was disadvantageous to the defence.  It is by no means evident to me that this is so.  As his Honour emphasised, the defence bore no onus, nor was it necessary that the jury entertain any positive satisfaction about the veracity of the accused’s version of events.  That version was, or might have seemed to the jury to be, a quite improbable one and I should have thought the accused’s best chance of acquittal might well have been along the lines of which Mr Butler complains - i.e. consideration not of the positive strength of the defence case, but rather of whether there were reasons to doubt Crown witnesses.  Mr Butler suggested that some of the directions the judge gave might have given the jury the impression that there was an onus on the defence.  That does not appear to me to be so;  the judge could hardly have made clearer than he did the point that, in all respects, the Crown bore the onus and that the standard of proof was beyond reasonable doubt.

A further criticism of the judge’s directions was that his Honour made a point strongly in favour of the Crown with respect to documents which, according to the appellant’s evidence below, had been in his possession and would have proved Yeng’s existence.  The judge reminded the jury of evidence which the appellant gave on that subject and of a suggestion that such documents had been concealed or destroyed by the police.  His Honour put before the jury a number of considerations relating to this topic and told them that witnesses other than the appellant had denied the existence of the documents;  but the sentence which Mr Butler particularly objected to was as follows:

"You may also wish to consider that it would take a particularly wicked sort of obsession on the part of someone that the accused was guilty to destroy or conceal documents supporting his innocence on a charge of murder and, of course, as has been pointed out, the charge of murder wasn’t laid for a couple of years at least".

The point being made was, it appears, that it might not have seemed very probable that, while Shi Feng’s disappearance was being investigated and well before any charge was laid, the police would deliberately "lose" documents obtained by them, relevant to the questions they were investigating, unless they had a wickedly obsessional belief that Shi Feng had been murdered by the appellant.  It is my view that a comment along those lines was not beyond the bounds which confine the scope of judicial observations on facts;  some might think the point to have been rather over-stated by his Honour, but it does not appear to me that what was said infringed the principles laid down in Palmer (1998) 72 A.L.J.R. 254, on which Mr Butler relied.

The next specific criticism Mr Butler made of the judge’s directions related to an observation his Honour made, relevant to the fact that the appellant had not attempted, for some years, to find Yeng.  The judge said:

"Now, in that situation you might wish to ask yourself what you would do if you were in his position, would you abandon the search four years ago or would you ensure that people kept searching on your behalf until the last moment, even if you were physically not able to do it yourself?".

Mr Butler argued that this was equivalent to requiring the appellant to lead evidence and that it assumed the existence of an obligation upon an appellant.  He said that "the logic of it flows from an expectation that an accused person should seek evidence to establish his innocence".  The assumption on which Mr Butler’s submission is based is that it can never be right for a jury to consider what steps an innocent accused might have taken to clear himself;  from that it would follow that the judge should direct them not to consider that topic;  that cannot be a universal truth.  If an accused’s daughter has disappeared and he is accused of having murdered her, could any rational jury fail to consider whether he reacted to the disappearance as an innocent parent would do, by searching for the child?  Here, the person the subject of the postulated search was not the alleged murder victim, but a person whose activities and indeed very existence were an important issue.  Some of the evidence the appellant gave could have left the jury with the impression that it should have been easy to find Yeng.  The appellant agreed that he had told police that given a month he could easily find Yeng.  At least if there was reason to think the appellant had the resources to do so, it might have seemed to the jury strange that the appellant had not made persistent efforts to locate him. 

Mr Butler sought to argue that no such comment as was made could be allowed, on the analogy of the law as appearing from authorities dealing with comment on failure to call a witness or witnesses.  It does not appear to me that such comment is in the same category as comment upon failure to attempt to take steps to locate such a person as Yeng.  Ultimately, the strength of this point depends upon the correctness of a contention, which Mr Butler made, that the judge’s direction would have tended to distract the jury from considering the case on the basis that the onus lay on the Crown to prove murder.  As I have explained, it is my opinion that the judge made that point, as well as the standard of proof, very clear indeed.

Lies

It follows that none of the specific criticisms of the judge’s conduct of the case so far considered is accepted;  in some respects the judge might with advantage have expressed his views somewhat differently, but that will ordinarily be found to be so, when a substantial summing-up in a complex case is pored over at leisure.

The most substantial point taken by Mr Butler related to the judge’s directions with respect to lies.  He argued that the judge did not identify the lies which could be  considered by the jury, did not distinguish between those lies which went only to credit and those which went to proof of guilt, and did not tell the jury that proof that a lie was told by the appellant did not establish the truth of any proposition contrary to the lie.  As to the last submission, Mr Butler said that it related particularly to lies supposedly told in relation to the appellant’s contacts with Tom Chen, mentioned above.

It is desirable before examining his Honour’s directions on the topic, to consider what was said in Edwards (1993) 178 C.L.R. 193, in which one finds discussion of the significance of lies in criminal trials and the way in which they should be used, from pp. 208 to 211.  Not all of what is said there can have been  intended to constitute directions which a judge must give in every case in which lies are relied on, but there is room for difference of opinion as to which parts of the principal set of reasons are in that category.  Edwards is authority that in any case in which lies are relied on other than as merely affecting credit, the jury should be told that a lie can only go to prove guilt if it is deliberate, relates to a material issue, was told from a consciousness of guilt and (if relied on as corroborative of a particular witness) that it must be proved to be untrue by evidence other than that of the witness to be corroborated.  As to the third requirement, the law as laid down in Edwards is that to find that a lie exhibits a consciousness of guilt, the jury do not have to conclude that the accused is guilty beyond reasonable doubt;  however, it does not appear to me that this rather difficult part of the Edwards doctrine is a matter which must always be explained to the jury.  There are also a number of other points which are not, in my understanding of Edwards, necessarily required to be explained to the jury in every case.  These are set out at pp. 210 and 211:

1. If a lie is relied on to prove guilt, identify it precisely;

2. If a lie is relied on to prove guilt, identify the circumstances and events that are said to indicate that it constitutes an admission against interest;

3. Take such a lie into account only if satisfied that it reveals a knowledge of the offence, or some aspect of it;

4. Take such a lie into account only if satisfied that it was told because the accused knew that the truth of the matter about which he lied would implicate him in the offence;

5. There may be reasons for the telling of the lie apart from the realisation of guilt;

6. If the jury accepts that a lie is told out of panic or for some other reason other than a realisation of guilt, they cannot regard it as an admission.

To come now to the three points made by Mr Butler, none of them falls within what appears to me to be the universally applicable part of Edwards.  In some instances, it will be appropriate to direct the jury in accordance with some or all of the items in the list I have set out and in other instances it will not.  An example is the direction (c), speaking of revelation of the knowledge of the offence or some aspect of it;  a particular lie may be very relevant although it has nothing to do with knowledge of the offence or some aspect of it - for example, a false alibi, given in relation to an offence the commission of which is public knowledge.  Further, as to (b), identification of the matters said to indicate that a lie constitutes an admission against interest, a false alibi may help towards proof of guilt even if it cannot sensibly be regarded as constituting such an admission;  further, the "circumstances and events" tending to show its incriminatory nature may be obvious and require no directions.

I turn now to the judge’s directions of which complaint is made.  The judge explained to the jury the difference between lies which go only to credit and those which are "concerned with consciousness of guilt".  He also told them of the four requirements identified in Lucas [1981] Q.B. 720 at 724:  his Honour said in effect that they would have to be satisfied that a lie was deliberate, that it related to a material issue, that it was told out of a realisation of guilt, and that it must be clearly shown to be a lie by evidence from an independent witness.  These directions, as to the four essentials, were not complained of before us;  but in fact they went further in favour of the defence than the law required.  It is only if a lie is said to go towards proof of guilt that it must satisfy the four Lucas tests.  His Honour’s directions would have given the jury to understand that those four tests applied to any lie, whether or not relied on in proof of guilt.

His Honour then went on to discuss the reason why lies might have been told by the appellant and mentioned that the appellant admitted having told lies and said this was to conceal his immigration status.  His Honour, in the course of this discussion, uttered a sentence of which particular complaint is made:

"In approaching the task, you should look at the lies which have been admittedly told and any other matters which you think may be lies, and ask yourself whether you are satisfied that the explanation that he was attempting to avoid the consequences of being an illegal immigrant may be true".

His Honour went on to explain that the Crown bore the onus of proof and that the jury had to "exclude to the required standard any explanation consistent with innocence".  Again, the latter direction went too far in favour of the defence;  the requirement of proof beyond reasonable doubt applies with respect to a lie if it is the "only evidence against the accused or is an indispensable link in a chain of evidence necessary to prove guilt" (Edwards at 210), but not otherwise.  In the passage just quoted, the judge was considering the question whether the reason the appellant gave for having told lies would stand scrutiny and suggested to the jury that they should consider, in that connection, the admitted lies and any other statements they thought were lies in dealing with that problem.  The judge identified neither the admitted lie, nor any others which the jury might properly consider.

In George Smith (C.A. No. 4 of 1997, 9 May 1997) this Court had to consider a case in which, in a trial which resulted in a manslaughter conviction, the judge referred to the appellant having told lies as being a matter which the jury were entitled to use when evaluating the whole of the evidence.  The judge did not identify what were the lies he had in mind, nor did he give any direction in accordance with Edwards.  As here, no redirection was sought.  Fitzgerald P. remarked:

"Any detailed discussion by his Honour of the use which might be made by the jury of lies by the appellant in accordance with Edwards v. R (1993) 178 C.L.R. 193 would have increased the risk of the appellant’s conviction for murder".

There was then discussion, in the reasons of Fitzgerald P., of the significance of some lies which were told and "possibly false statements".  It appears that, as here, the appellant Smith admitted having told lies and gave a reason for having done so.  As to that, Fitzgerald P. said:

"If the jury rejected his evidence, as it must have done, directions in compliance with Edwards must have highlighted to the jury that it could use his false testimony as evidence of his guilt of murder if satisfied - as must have been inevitable - that his false evidence was deliberate and related to a material issue and was given because he knew that the truth would implicate him in the offence".

The circumstances of the case of Smith have some resemblance to those of the present, in that there were admitted lies for which an innocent explanation was given.  The absence of any Edwards direction was held not to vitiate the trial because giving a full direction could only have made matters worse for Smith and because the Court believed that the failure to ask for any redirection was tactical.

In this case some of the directions on lies were in the respects I have mentioned too favourable to the defence.  What the appellant’s counsel says the judge should have done, as I understand the argument, was to identify all relevant lies and possible lies, and classify them into lies which would go in proof of guilt and those which were relevant only to credit.  His Honour undertook neither task and was not asked to do so by the defence.  That making the listing and classification I have referred to would have been difficult is evident:  there were not only admitted lies told by the appellant, but some fairly obvious untruths not admitted to be so, and other apparent untruths.

It appears to me that a safer course for his Honour to have taken, since the appellant had given evidence, would have been to invite the jury to consider any lies as relevant from the point of view of credit, not as directly probative of guilt.  That the judge left it open to the jury to consider certain unidentified lies as "concerned with consciousness of guilt" was a deficiency in the summing-up, but was not in my view one which could have worsened the appellant’s chances of acquittal.  In a case where lies by the appellant loomed fairly large, the fact that the judge did not list or otherwise identify, or divide into the two classes I have mentioned, any lies which had been discussed must have been evident to counsel.  It is a reasonable inference that it was not thought desirable to encourage any further discussion of the subject, by the judge, when it had been thoroughly canvassed in evidence and, no doubt, in addresses.

I would therefore reject the appellant’s contention that the verdict should be set aside and the case be re‑tried on the ground of inadequate treatment of the subject of lies. 

I would dismiss the appeal.

Judgment delivered 18 August 1998

I agree with the reasons for judgment of Davies J.A. and Pincus J.A. and the orders they propose.