SUPREME COURT OF QUEENSLAND

[1] McMURDO P:  I agree with Cullinane J's reasons for dismissing this appeal.

[2] As Cullinane J explains, the trial judge properly directed the jury that a lie told by the appellant out of a concern to conceal the truth of his sexual relations with the complainant from his girlfriend or from members of his family could not amount to evidence against him.[1]  In addition to those specific directions, the judge made these further observations in summarising the defence case for the jury shortly before they retired to consider their verdict:

“In relation to the lies told by the defendant, [defence counsel] argued that people often lie for many reasons other than consciousness of guilt. He reminded you of the circumstances in which the defendant told those lies, including the fact that he was an unsophisticated young man; he had just been wakened up; he had been drinking heavily the previous night; and he was initially spoken to at his parent's home in the presence of his mother. … [defence counsel] argued, in effect, that you would not be satisfied the defendant lied out of a consciousness of guilt but rather, perhaps, out of panic or fear.”

[3] Defence counsel made no application for any redirection on this aspect of the judge's directions to the jury.  In context, the judge's directions appropriately met the requirements of Edwards v The Queen[2] and Zoneff v The Queen.[3]

[4] FRASER JA:  I agree that the appeal should be dismissed for the reasons given by Cullinane J.

[5] CULLINANE J:  The appellant was convicted on 10 February 2009 at the District Court in Rockhampton on four counts of rape. 

[6] The relevant events occurred in the early hours of 4 March 2006 at the residence of the complainant in a town in central Queensland.  The complainant was then 18.

[7] The four counts of rape were constituted by various acts of vaginal intercourse, an act of anal intercourse and oral sex which the appellant had the complainant perform upon him.

[8] The complainant was asleep but woke whilst the appellant was having sexual intercourse with her and struggled with him.  He got up and asked the complainant if she wanted some toilet paper to clean herself.  He then left the room and the house.

[9] The complainant left the bedroom and woke a friend who was sleeping in a bedroom nearby and complained of rape suggesting that the appellant was “probably” the rapist.  A friend was called who phoned the police and came to the residence and soon after the police arrived.  The complainant was taken to be examined by a medical practitioner.

[10] The complainant and appellant were known to each other, each being a resident of the same town.

[11] There was evidence from a number of witnesses that the complainant was severely distressed.

[12] Early the following morning the appellant was approached by the police.  He initially denied any knowledge of the matter.  He denied having sex with the complainant and denied having been at her premises the previous evening.

[13] The conversation with the police was tape recorded.  It commenced at the appellant’s home and continued in the police vehicle and then at the police station.  In driving to the police station the vehicle was driven past the complainant’s home. 

[14] At the police station the conversation was suspended and when taping commenced again the police officer is recorded as saying that the appellant had told him during the suspension that he wanted to say something to the police officer that he had not wanted to say in front of his mother.  The appellant is recorded as saying he didn’t want the police to ask him questions in front of his family.

[15] The appellant then went on to admit having been at the complainant’s premises and having had sexual intercourse with her which he claimed was consensual.

“MCCANN:  Well, I just went there, like, you know, I was talking to her and that 8 weeks before, and like where me mate – he rode her that week before or whatever, and I went there and knocked on the door and she said “Come in” and then I was just talking to her and that and then, like, the lights were out and that, and that’s what I mean she’s known it was me for sure.  And then we pretty much just had sex and then I said “I’ll get you some toilet paper” because I never – like, you know, I was not wearing a condom or nothing like that.  And then her mate woke up that was out on the lounge room, because there was a mate there because I know she doesn’t have a car and someone was walking around the house and like, you know, I have a girl friend, you know, I shouldn’t be doing – pissed as a nit.  That’s when I took off home, I went home then.  And then I don’t know what’s happened from there.”[4] 

[16] In opening the case counsel for the prosecution told the jury that there were three aspects to the case for the prosecution.  The first was the distressed condition which the complainant was observed to be in; the second was DNA evidence which placed the appellant at the scene which demonstrated that he had lied to the police when he had said that he had not been at the complainant’s residence.  The third was the false account which the appellant had given when he denied knowing anything about the matter.

[17] In the course of the prosecution case, a witness, the friend who was sleeping in a bedroom nearby, was called.  She knew both the appellant and the complainant and had seen them on the relevant evening in the centre of the town.  She had been in a group with the complainant and others and the appellant was in a different group.  She gave evidence that she was “probably drunk” but did not know how much the complainant had had to drink.  It was put to the witness that on an occasion about a week prior to the relevant events she had gone to the complainant’s home and seen the appellant there.  She agreed this was the case and also agreed that on that occasion the complainant indicated that she would like to have “a sexual exchange” with the appellant.  The complainant denied that she had said this.

[18] Immediately following this evidence the following appears: 

“But you remember on that night that Steven McCann made it clear, didn’t he, that he had a girlfriend and that he wanted to remain loyal?— Yes.”[5]

[19] In the course of his address, counsel for the prosecution referred to the lies constituted by the appellant’s initial claim that he had no knowledge of the matter and had not been at the complainant’s home and had not had sexual relations with her:

“Think about the lies, the lies that he told.  What would you do if you were an innocent man and two cops rock up at your door at 6 a.m. in the morning, or 6.30, or whenever it was.  They come to your door and they are effectively – they’re telling you, ‘Look, there’s been a sexual assault and we think it might have been you.’  Now, they’re accusing you of a very, very, very serious crime.  Would you lie to them out of fear that your girlfriend might find out?  Did he think the police were going to run over and tell his girlfriend that, you know, he’d had sex with this other woman?  It’s just ridiculous.  Or would you think to yourself, ‘I better straighten this out really, really, really quickly.  If I don’t I could be going to gaol here.  I’ve got serious, serious problems and I’ve got nothing to hide.  I know I’m innocent, I’ve got nothing to hide, I’m just going to tell them everything I know and I’m going to straighten this out right now.’  You’d be thinking, ‘I’ve got bigger problems right now than what my girlfriend is going to think.’ ”

…

“Then he says – rambles about he didn’t want his girlfriend to know, pissed as a nit.  He needed to get his story straight quickly and stick to it but he wasn’t smart enough to do it.  You can just – on the tape you can just hear his mind slowly ticking over.  You can tell he’s making it up as he goes along.  He changes his story multiple times.  If you were innocent, if you were in that situation, you had nothing to hide, would you do that?  Can you imagine yourself on the tape, trying to spin these yarns like that if you were innocent?” [6]

[20] Somewhat curiously counsel for the appellant in his address did not make any reference to any explanation for the appellant’s original false account involving a concern that his girlfriend might find out about the matter.  Rather he dealt with the matter by what might be described as an analogy in which he raised the hypothetical case in which a lawyer (someone who would be much more aware of his rights and in a better position to handle the situation) might lie faced with such an allegation to protect his marriage.

[21] In summing up to the jury the learned trial judge dealt with the question of lies and the qualities which such lies would have to have before they could be used as evidence against the appellant contrasting such lies with lies which might have an innocent explanation.  It is accepted by the appellant that these directions accorded with the accepted manner of instructing juries on this subject.

“I turn now to the issue of the lies told by the defendant to the police when he denied having been to [the complainant's] house that night.  The defendant admits that he lied to the police, initially.  The prosecution relies on those lies told by the defendant as showing that he is guilty of the offences.

Before you can use this evidence, that is, of his lying, against him, you must be satisfied of a number of matters.  Unless you are satisfied of all of these matters, you cannot use the evidence of the lies that he told against him.

Firstly, you must be satisfied that the defendant has told a deliberate untruth.  There is a difference between the mere rejection of a person’s account of events, and of finding that the person has lied.  In many cases where there appears to be a departure from the truth, it may not be possible to say that a deliberate lie has been told.  The defendant may have been confused, or there may be other reasons which would prevent you from finding that he has deliberately told an untruth.  Well, in this particular case, it is a matter for you, but you might think that deliberate lies were told.

Secondly, you must be satisfied that the lie is concerned with some circumstance or event connected with the offence.  You can only use a lie against the defendant if you are satisfied, having regard to those circumstances and events, that it reveals a knowledge of the offence or some aspect of it.

Thirdly, you must be satisfied that the lies were told because the defendant knew that the truth of the matter would implicate him in the commission of the offences.  The defendant must be lying because he is conscious that the truth could convict him.  There may be reasons for telling lies, apart from a realisation of guilt.  People sometimes have an innocent explanation for lying.

For example, a defendant might lie about matters out of shame, or out of a wish to conceal embarrassing or disgraceful behaviour.  A lie may be told out of panic or confusion, or to escape an unjust accusation.

If you are satisfied beyond reasonable doubt that a reason of this kind is not the explanation for the lies, then you can use the lies against the defendant.  You can only use the lies against the defendant if you are satisfied that he lied out of a realisation that the truth would implicate him in the offences.”[7]

[22] It was contended by the appellant that the learned trial Judge erred in the directions which he gave to the jury on this subject because he failed to make specific reference to the explanation that the appellant may have lied so as to avoid his girlfriend finding out about what he had done and so as to preserve the relationship between them.

[23] There can be no doubt that from the opening address of the prosecutor and throughout the trial the jury was aware that the prosecution case in part was based upon the false account that the appellant had given to the police when first questioned when he denied that he had been at the complainant’s home on the previous evening or that he had sexual relations with the complainant.  Similarly, there can be no doubt that the jury was aware from the evidence that the appellant gave as an excuse for such lies his concern about his girlfriend finding out.  In addition he expressed concerns about speaking to the police in front of his family. 

[24] Clear directions which His Honour gave on the question of lies included directions identifying a number of motives which might lead a person to lie including shame or a desire to conceal embarrassing or disgraceful behaviour.  His Honour distinguished lies of this kind from lies springing from a consciousness of guilt emphasising it was only the latter which might constitute evidence implicating the appellant. 

[25] The jury could not have failed to understand in the context of the trial that a lie told out of a concern to conceal the truth of what he claims actually occurred on that evening from his girlfriend or members of his family could not amount to evidence against him.

[26] The second of the two grounds advanced, that the learned trial Judge ought to have instructed the jury that the jury had to be satisfied beyond a reasonable doubt that the appellant lied because he realised that the truth would implicate him in the commission of the offence and not for any other reason, cannot be accepted.  This was not a case in which the lies were the only evidence linking the appellant to the offence.  There was of course the complainant’s evidence, her distressed condition, and the evidence of the appellant’s DNA being found on the complainant’s underwear.

[27] In the last paragraph of the summing up set out above the directions were arguably more favourable to the appellant than what he was entitled to.

[28] The appeal should be dismissed.