R v Oth[2022] QCA 53

SUPREME COURT OF QUEENSLAND

1. [1]
   SOFRONOFF P:  I agree with the reasons of Kelly J.
2. [2]
   McMURDO JA:  For the reasons given by Kelly J, I joined in the orders made on 15 February 2022.
3. [3]
   KELLY J:  On 3 June 2021, the appellant was convicted on three counts, two involving the indecent treatment of a child and one of rape.  At the time of the alleged offending, the appellant was 69 years old and the complainant was 10 years old.  The appellant had been in a relationship with the complainant’s mother and was living at their home as a boarder.  The offending was alleged to have occurred at the home.  The first indecent treatment count and the count of rape were alleged to have occurred in the pool.  The second indecent treatment count was alleged to have occurred in the kitchen.
4. [4]
   The appellant appeals against his conviction on the grounds that a miscarriage of justice occurred because inadmissible evidence of post-offence conduct was admitted into evidence and the trial judge failed to direct the jury in relation to that evidence.  The evidence of post-offence conduct involved the appellant’s conduct in leaving the home in the immediate aftermath of the second indecent treatment count.
5. [5]
   The appeal was heard on 15 February 2022.  At the conclusion of the hearing of the appeal, the Court allowed the appeal, set aside the convictions and ordered a retrial.
6. [6]
   These are my reasons for joining in the making of those orders.

Factual Background

7. [7]
   The offending was alleged to have occurred during the period between 22 November 2019 and 11 December 2019.  On 11 December 2019, the complainant’s mother had picked the complainant up from school and returned to the home.  Later that afternoon, the complainant had come to her mother’s room, wrote two notes which made a complaint about the appellant, and gave those notes to her mother.  The mother had then called the police.
8. [8]
   The police interviewed the complainant.  The complainant described being at the home, after having returned from school, during the afternoon of 11 December 2019.  She recalled standing in front of the fridge and the appellant coming up behind her and touching her.  She said he whispered into her ear and said that she was his wife.  She recalled that the touching had involved rubbing her vagina on the outside of her shorts for a couple of seconds.  The complainant said that after this episode she got a drink and went to her mother’s room where she wrote the notes and gave them to her mother.  The complainant described to the police two earlier occasions where the appellant had been in the pool with her.  On the first occasion, the appellant was described as having touched and rubbed her vagina.  On the second occasion, he was described as having rubbed her vagina.  The rubbing on this occasion was described by the complainant as having been “Inside. And sometimes outside”.  She recalled that when this offending occurred, her mother had been in the bedroom and her brother had been in the lounge room.
9. [9]
   After interviewing the complainant, the police interviewed one of the complainant’s brothers, who was then 15 years old.  The brother described being present when the complainant wrote the notes and spoke with her mother.  He also described having earlier that day been in the pool with his two siblings and the appellant.  He described the appellant’s behaviour towards the complainant in these terms “ … he keeps starin’ at her. Um, every time we go to the pool, he’s always lookin’ out the window, when me, [my brother] and [the complainant] are in the pool” (sic).

Overview of the trial

10. [10]
    The trial occurred over two days.  The trial was a retrial, the jury in the earlier trial having been unable to reach a unanimous verdict.
11. [11]
    The Crown case was opened on the basis that “it really rises and falls on the evidence that comes from [the complainant]”.  That evidence comprised recordings of the police interview and two pre-recordings of evidence.  The complainant had been cross examined about her behaviour in the home.  She agreed that she would at times get angry with her mother but denied ever shouting at her mother.  She admitted shouting at the appellant.  She was insistent that the appellant had been in the pool with her alone.  She gave evidence which confirmed that the offending the subject of the counts had occurred.
12. [12]
    The brother also gave evidence which comprised a recording of his police interview and a pre-recording of his evidence.  He had been briefly cross examined and confirmed that he had never seen the appellant touching or rubbing the complainant’s vagina.
13. [13]
    The complainant’s mother gave evidence in person.  She gave evidence about the events on 11 December 2019.  She relevantly said “I was in my room and then [the complainant] came in, said that, ‘I have something to tell you’.  She wrote it down on paper.  And I said, ‘Really? Is that really what happened?’ She said ‘yes’.  And I called the cops.”  The complainant had written two notes which were effectively identical and which read “[The appellant] was touching me where the PJ and he was touching his roud part and then said my wife” (sic).  These notes were tendered into evidence.  The mother also recalled the appellant and the complainant having been in the pool alone together “quite a few times”.  She gave evidence about the layout of the house.  The pool was outside the house but could be observed from the kitchen window.  She agreed that the complainant was a difficult child, was prone to swearing and would shout and scream at her and, on occasion, at the appellant.  She accepted that it would be a lie to suggest that the complainant had never yelled at her.
14. [14]
    The investigating police officer was called to give evidence about photos he had taken of the house and the handwritten notes that the complainant had provided to her mother.
15. [15]
    The Crown case closed at 3.47 pm on day one.
16. [16]
    The appellant gave evidence.  He denied the alleged offending.  He gave evidence that the complainant was “a terrible child”.  He described her as prone to angry outbursts and as having directed foul language and racial slurs towards him.  He said he would use the pool with the complainant and her brothers but only when their mother was present.  He said he had never been alone with the complainant in the pool.  He said that he “would swim in the pool together with the other children including [the complainant]”.  At the first trial he had initially given evidence that he had never been in the pool with any of the children but had then changed his evidence to admit that he had swum with the children on some occasions.  At the first trial he had admitted that his original answer was a deliberate untruth which he had told to distance himself from the suggestion that he had been in the pool with the complainant.  He was cross examined at some length about this evidence.
17. [17]
    The appellant was also cross examined about the day on which the complainant’s mother had called the police.  He initially claimed to not remember the complainant leaving the kitchen and going into her mother’s room.  He was cross examined by reference to his evidence at the first trial.  He accepted that when the complainant left the kitchen, she went into her mother’s room.  He said that he had then had a cigarette and watched the brothers play a video game called “Fortnite”.  A friend of the complainant’s mother had then arrived at the home and walked past him without saying hello.  He had then left the home and walked to his niece’s house.
18. [18]
    Three good character witnesses were called by the defence.  The defence case was closed by 10.11 am on day two.
19. [19]
    By 12.36 pm on day two, the jury had retired to consider their verdict.
20. [20]
    Around 3 pm on day two, a note was received from the jury which stated that the jury wanted to see the complainant’s police interview again.  The recording was replayed to the jury along with the substantive part of the cross examination of the complainant.  The jury then returned to their deliberations and the verdict was returned at 5.29 pm.

The post-offence conduct and how that evidence was left to the jury

21. [21]
    The appellant’s arguments on this appeal concerned the admission and treatment of evidence that, on 11 December 2019, the appellant had left the scene of the alleged offending after the complainant went into her mother’s room and after the mother’s friend had arrived at the home and ignored the appellant.  This conduct of the appellant in leaving the scene was described in the submissions as “the post-offence conduct”.
22. [22]
    The post-offence conduct was not opened by the prosecution.
23. [23]
    In the course of the mother’s evidence in chief, the following exchange occurred about the events on 11 December 2019:

“Before police arrived or after they arrived, did you see [the appellant]? …Yes.

…Where did you see him? …At his niece’s place.

Okay. Was that before or after police came to your house? …He was at his niece’s before he got arrested.

Okay but just before that did you see him leave your house? …Yes. And that was before the police turned up.

Okay. Was it before or after [the complainant] wrote the note? …After.”

24. [24]
    During the evidence in chief of the investigating police officer, the following exchange occurred about the events on 11 December 2019:

“That day, did you speak to [the appellant]? …I did, yes.

Where did you speak to him? … Several houses down the road. I don’t recall the exact address.

What time was that? Do you recall the time? … Some time after 5.30…

When you spoke to [the appellant] down the road… you informed him of the allegation against him generally, being the indecent treatment of a child. Is that right? Yes, from memory.”

25. [25]
    The appellant gave evidence in chief that at about 5 pm on the afternoon of 11 December 2019 he had left the home and walked to his niece’s house which was close by.  That evidence was adduced by a leading question which contained the comment that the subject matter of the question was “uncontroversial”.
26. [26]
    In cross examination, the prosecutor referred the appellant to the following parts of the appellant’s evidence from the first trial:

“Now, moving onto seeing [the complainant] go into her mother’s room.

Question: Do you agree that in terms of all the events on the 11^th of December two-thousand – December, you understand that [the complainant’s] allegation is that you touched her in the kitchen. And the only time that could have occurred was when she was getting watermelon in the kitchen; is that right?

Answer: I never touched her.

Question: I accept that’s what you say.

Answer: Yeah.

Question: But the only time that could’ve occurred was when she was in the kitchen getting watermelon; is that right on that day?

Answer: Yeah.

Question: That’s the only time it could’ve occurred because after she left the kitchen, she went into her mother’s room; is that right?

Answer: Yeah.

Question: And a short time later, you had a cigarette?

Answer: Yeah.

Question: You were watching the boys play Fortnite for a short time?

Answer: Yeah.”

27. [27]
    Those passages from the evidence from the first trial having been referred to, the prosecutor then pursued the following line of cross examination without objection from the appellant’s counsel:

“You accept that? Those events?---Yeah.

You then saw [the mother’s] friend come over to the house?---Yeah, ….

She didn’t talk to you, did she?---Nuh.

She just walked straight past, didn’t say hello?---No.

And then you left the house?---Yes.

And you walked to your niece?---Yes.

And at that point, you walk down the road. A short time later you saw police, didn’t you?---Yeah.

You’d already visited your niece earlier that day, hadn’t you?---Yeah, up and down, you know, walk.

Okay?---I didn’t know nothing, but police coming down, [the mother’s friend] coming over. Nothing. I don’t know nothing. I just go my own way.

The real reason that you left the house after [the complainant] went into her mother’s room is because you’d just touched her, hadn’t you?---I never not – do nothing.

You left the house because you saw - - -?---That’s [indistinct]

- - - [the complainant] go into her mother’s room?---Kids, I – they always go to their mother room. I don’t know nothing.

And you saw – you saw [the mother’s friend] come over and she didn’t talk to you?---I don’t know what’s going on.

You knew things were off?---Nuh, nothing. I never thought nothing.

You knew that you’d done something wrong?---No.

And that - - -?---I never did.

- - - you were in trouble?---I swear I never did.

So you were down the road to escape the house?---No. I never did, I swore, because I always go on my way to my [niece’s] place and relax.

But you’d been there early in the morning?---Pardon?

You’d been earlier that day, hadn’t you?---Always because it’s close. Next door this part – I - - -

Mr Oth, if I suggest to you that you did, in fact, touch [the complainant] on the vagina you’re just going to deny that, aren’t you?---Yes. It’s nothing ever happened.”

28. [28]
    During the prosecutor’s address, when describing the events of 11 December 2019, he relevantly stated:

“[The complainant] came from school, looked in the fridge – and we know that from her and from previous evidence given by [the appellant]. He saw her go into the fridge, he accepted that today; get food. He accepted [the mother] was in her room on Facebook and after – in that moment when [the complainant] was touched – she went into her room, she wrote the note to her mother which she scrunched up – which you can see – the note which is consistent with her allegations of what she told you in the court room.

Her mother called police and the police attended and it was in that – at that time after [the complainant] went into her mother’s room – [the appellant] accepts he left the house. He left the house; went down the road to a place he’d already been that day and then the police turned up. Convenient timing. It was because, during those moments is when he took that opportunity to abuse the trust placed in him by this family, went up behind the complainant and touched her and said, ‘You’re my wife.’”

29. [29]
    Neither side sought any directions from the trial judge in relation to the post-offence conduct.  The trial judge did not give any direction to the jury about this evidence.  The trial judge did not refer to this evidence in the summing up.

A miscarriage of justice is established

30. [30]
    The questions which arise on this appeal concern whether the post-offence conduct was admissible and, if it were, whether there was a need for any direction in respect of the post-offence conduct and the form of any required direction.  In the event a form of direction was required, there is a further question as to whether the failure to give the required direction led to a miscarriage of justice.  As to this last issue, it is for the appellant to establish that the trial judge’s failure to give a direction concerning an aspect of the evidence constituted a miscarriage of justice.^[1]  A miscarriage of justice will have occurred if the direction should have been given and it is “reasonably possible” that the failure to direct the jury “may have affected the verdict”^[2].
31. [31]
    The conduct of an accused after a crime has been committed may in some circumstances provide evidence of the accused’s culpability for that crime.  The telling of a lie after a crime is sometimes given as an example of such conduct.  More relevantly to the present case, an inference of guilt may sometimes be drawn from the fact that an accused fled or departed from the scene of a crime.
32. [32]
    In R v Peavoy,^[3] Weiler JA of the Ontario Court of Appeal observed:

“Evidence of after-the-fact conduct is commonly admitted to show that an accused person has acted in a manner which, based on human experience and logic, is consistent with the conduct of a guilty person and inconsistent with the conduct of an innocent person.”

33. [33]
    In R v White,^[4] a decision of the Supreme Court of Canada, Major J made the following observations about post-offence conduct:

“Evidence of this kind is often called ‘consciousness of guilt evidence’ since it is introduced to show that the accused was aware of having committed the crime in question and acted for the purpose of evading detection and prosecution. That label is somewhat misleading and its use should be discouraged. ‘Consciousness of guilt’ is simply one inference that may be drawn from the evidence of the accused’s conduct; it is not a special category of evidence in itself. Moreover, the words ‘consciousness of guilt’ suggest a conclusion about the conduct in question which undermines the presumption of innocence and may prejudice the accused in the eyes of the jury … to the extent a general description is necessary, the use of more neutral language such as ‘evidence of post-offence conduct’ or ‘evidence of after-the-fact conduct’ is preferable… Regardless of which phrase is used, however, the focus of the jury should be kept on specific items of evidence at hand – the act of flight, the false statement, as the case may be – and on the relevance of those items to the ultimate issue of guilt or innocence…

It has been recognised, however, that when evidence of post-offence conduct is introduced to support an inference of consciousness of guilt it is highly ambiguous and susceptible to jury error. As this court observed in Arcangioli,^[5] the danger exists that a jury may fail to take account of alternative explanations for the accused’s behaviour, and may mistakenly leap from such evidence to a conclusion of guilt. In particular, a jury might impute a guilty conscience to an accused who has fled or lied for an entirely innocent reason, such as panic, embarrassment or fear of false accusation. Alternatively, the jury might determine that the conduct of the accused arose from a feeling of guilt, but might fail to consider whether that guilt relates specifically to the crime at issue, rather than to some other culpable act.”

34. [34]
    The potential for this kind of evidence to be misused by a jury has long been recognised in this country.^[6]
35. [35]
    In Edwards v The Queen,^[7] the High Court considered a case involving lies told by the accused which were sought to be relied upon as proof of guilt.  In considering the appropriate form of directions to be given by a trial judge to the jury in respect of that evidence, the joint judgment (Deane, Dawson and Gaudron JJ) said:^[8]

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

Moreover, the jury should be instructed that there may be reasons for the telling of a lie apart from the realization of guilt. 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 jury should be told that, if they accept that a reason of that kind is the explanation for the lie, they cannot regard it as an admission. It should be recognized that there is a risk that, if the jury are invited to consider a lie told by an accused, they will reason that he lied simply because he is guilty unless they are appropriately instructed with respect to these matters. And 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 accused may be confused. He may not recollect something which, upon his memory being jolted in cross-examination, he subsequently does recollect.”

36. [36]
    In R v SBB,^[9] in dealing with a submission that, on the facts of that case, an Edwards direction had been required to prevent the jury reasoning that the established conduct “could only show guilt”, Jerrard JA relevantly observed that:

“Judicial instruction of a need to consider other possible explanations for conduct, consistent with innocence, to prevent that automatic leap, is the essence of what is called an Edwards direction.”

37. [37]
    In Zoneff v The Queen,^[10] the accused was tried on seven counts of false pretences and fraudulent conversions.  He represented himself at the trial and gave evidence.  The prosecutor cross examined the accused about certain aspects of his dealings with the alleged victims and the prosecutor put to the appellant that he had lied in those dealings.  It was also suggested to the accused that some of his answers in the witness box were lies.  The prosecutor did not address the jury.  The trial judge, in the course of summing up, made the following statement to the jury:

“There have been some questions put to the accused that in fact he lied. At times it can be put to you by the Crown that if a person lies, really, it is out of what we call a consciousness of guilt. In effect, they are guilty and they are covering up, but I have to remind you, of course, that there are many, many reasons why people at times lie. Many of them, of course, not consistent with guilt.

They can do it out of panic. They can do it perhaps because they are covering up for someone and, indeed, there are many other reasons.

However, I think it important to look at whether a person is being deliberately untruthful. Of course, if you find they have, it may naturally affect that person’s credit, whether you believe what they are saying, but in all these situations you have to look at the manner that that was put and what was said but, bearing in mind, of course, if perhaps some person has been misled. For instance, I think Mr Zoneff was very open about how salesmen do mislead people because what they have in mind is the ultimate sale. Consequently it can be seen in that light.

However, it does not detract you from looking at the Crown’s obligation, really, in each case, in each of these charges, to prove it; and, as to what was said by the accused, really is a matter for you to assess and, indeed, whether that goes to his credit, perhaps not to the question of his guilt.”

38. [38]
    Before the High Court, the appellant ran alternative arguments.  The primary argument was that the trial judge should not have embarked in the summing up upon the topic of possible lies.  The alternative argument was that if the trial judge were bound to give directions on that topic, he should have given them in accordance with the judgment in Edwards.^[11]  The joint judgment (Gleeson CJ, Gaudron, Gummow and Callinan JJ) reasoned as follows:^[12]

“The meaning of the phrase ‘consciousness of guilt’, the risk that its use by the trial judge may itself suggest guilt, which circumstances call for the giving of an Edwards-type direction, and the difficulty in distinguishing between lies going to credibility and those indicating guilt have been matters of some controversy. … But, … rigid prescriptive rules as to when and in what precise terms an Edwards-type direction should be given cannot be comprehensively stated.

There may be cases in which the risk of misunderstanding on the part of a jury as to the use to which they may put lies might be such that a judge should give an Edwards-type direction notwithstanding that the prosecutor has not put that a lie has been told out of consciousness of guilt. As a general rule, however, an Edwards-type direction should only be given if the prosecution contends that a lie is evidence of guilt, in the sense that it was told because, in the language of Deane, Dawson and Gaudron JJ in Edwards, ‘the accused knew that the truth... would implicate him in [the commission of] the offence’ and if, in fact, the lie in question is capable of bearing that character. (The words in italics are ours and, for the sake of clarity, should be included in the statement of principle.)

Moreover, if there is a risk of confusion or doubt as to the way in which the prosecution puts its case, the trial judge should inquire of the prosecution whether it contends that lies may constitute evidence of consciousness of guilt and, if so, he or she should require identification of the lie or lies in issue and the basis on which they are said to be capable of implicating the accused in the commission of the offence charged.

This was an unusual case. The prosecutor did not, during cross-examination, in terms, or in our view, by implication, suggest that any answer given was a lie, told out of consciousness of guilt (a phrase we use for convenience). Moreover, as the prosecutor did not address the jury, no such suggestion was made at any later stage of the trial.

In this Court the respondent prosecutor reiterates that no reliance was, in the courts below, or is here, placed upon the answers given to found a submission that the appellant lied, out of a consciousness of guilt.

It follows in our opinion that it was unnecessary, indeed undesirable, that a direction of the kind with which Edwards was concerned be given in the circumstances of this case. In order to give it in this case the trial judge would have had to decide which of the appellant's answers were or were not capable of being regarded as lies indicative of a consciousness of guilt. Such a direction here could have had the effect of raising an issue or issues upon which the parties were not joined, and of highlighting issues of credibility so as to give them an undeserved prominence in the jury's mind to the prejudice of the appellant.

…

The trial judge was evidently concerned that, having regard to some of the cross-examination, there was a serious risk that the jury might engage in an impermissible process of reasoning in relation to the matter of lies. Unfortunately, his response was to give a direction which … raised the topic and then left it largely up in the air.

A direction which might have appropriately been given and which would have allayed any concerns which the trial judge may have had, in this unusual case, in which the issues may not have been defined as they might have been had the prosecutor made a speech to the jury, is one in these terms:

‘You have heard a lot of questions, which attribute lies to the accused. You will make up your own mind about whether he was telling lies and if he was, whether he was doing so deliberately. It is for you to decide what significance those suggested lies have in relation to the issues in the case but I give you this warning: do not follow a process of reasoning to the effect that just because a person is shown to have told a lie about something, that is evidence of guilt.’

A direction in such terms may well be adaptable to other cases in which there is a risk of a misunderstanding about the significance of possible lies even though the prosecution has not suggested that the accused told certain lies because he or she knew the truth would implicate him or her in the commission of the offence.”

39. [39]
    In Dhanhoa v The Queen,^[13] Gleeson CJ and Hayne J said:

“It is not necessary for a trial judge to give a direction, either of the kind referred to in Edwards, or of the kind referred to in Zoneff, every time it is suggested, in cross-examination or argument, that something that an accused person has said, either in court or out of court, is untrue or otherwise reflects adversely on his or her reliability. Where the prosecution does not contend that a lie is evidence of guilt, then, unless the judge apprehends that there is a real danger that the jury may apply such a process of reasoning, as a general rule it is unnecessary and inappropriate to give an Edwards direction. Zoneff was said to be an unusual case, and the direction there proposed was said to be appropriate where there is a risk of misunderstanding about the significance of possible lies”.

40. [40]
    On this appeal, the Crown submitted that the post-offence conduct was relevant for the limited purpose of establishing that the appellant had the opportunity to commit the offending.  As the Crown submitted, the evidence was relevant for that limited purpose because it established that the appellant was still at the scene when the complainant had entered the mother’s room and the mother’s friend had arrived at the home.  It can be accepted that the post-offence conduct in this case was relevant for the limited purpose of connecting the accused with the scene of the crime during the relevant time period.^[14]
41. [41]
    The Crown properly conceded that the evidence as left before the jury was insufficient to demonstrate a consciousness of guilt arising from the appellant having left the scene.^[15]  The Crown accepted that it was not open for the jury to have engaged in consciousness of guilt reasoning.^[16]  Ultimately, the Crown submitted that “the way that the case was litigated, the evidence as presented and the submissions of both counsel would not have left it open for the jury to have used that evidence as evidence demonstrating a consciousness of guilt… the evidence, as it came out, provided a satisfactory explanation for his departure.  It didn’t betray a consciousness of guilt and was not probative of his guilt.  It couldn’t stand alone for that reason as a piece of circumstantial evidence that the jury had regard to in deciding whether they were satisfied beyond reasonable doubt … it lacked probative value and that was apparent… it was self-evident that it lacked that probative force and wasn’t given any prominence by either party”.  Hence, the Crown’s position on this appeal was that the post-offence conduct was relevant for a limited purpose of connecting the appellant to the scene of the alleged offending but could not be relied upon for the purpose of establishing consciousness of guilt.  That distinction, though clearly expressed on this appeal, was neither articulated nor maintained during the course of the trial.
42. [42]
    As to the course of the trial, the post-offence conduct was adduced in the Crown’s case in a manner that was consistent with its being admissible on the basis identified by the Crown on this appeal.  However, the line of cross examination of the appellant concerning the post offence conduct concerned his reasons for leaving the house.  That line of cross examination had nothing to do with connecting the appellant to the scene of the alleged offending.  Rather, it was concerned to establish a guilty motive for leaving.  It was put to the appellant that “the real reason” why he had left was because he had just touched the complainant, that he had left because he knew that he had done something wrong, knew that he was in trouble and had escaped from the home.  In his address, the prosecutor inferred that the reason offered by the appellant for having left the house was not to be accepted because, as he reminded the jury, the appellant “went down the road to a place he’d already been that day”.  The address described the appellant’s leaving as “[c]onvenient timing”.  The prosecutor then inferentially, if not explicitly, identified the reason why the appellant had left the scene in these terms:

“It was because, during those moments is when he took the opportunity to abuse the trust placed in him by this family, went up behind the complainant and touched her and said ‘You’re my wife’”.

43. [43]
    The distinction maintained by the Crown on this appeal, namely that the post-offence conduct was relevant for a limited purpose of connecting the appellant to the scene of the alleged offending but could not be relied upon for the purpose of establishing consciousness of guilt, was a distinction that was never articulated to the jury.  There was no direction given by the trial judge to the jury in respect of the post-offence conduct.  The evidence of post-offence conduct was not referred to at all by the trial judge in the summing up.  There was no submission made on this appeal that the failure to seek a direction was made by the appellant for any forensic reason.  Rather, the Crown submitted that no direction was sought because no direction was required.  The Crown submitted that there was no need for any direction to the jury in respect of the appellant’s post-offence conduct because it was not reasonably open to the jury to have engaged in consciousness of guilt reasoning.  That submission was initially advanced on the basis that “there was no challenge by the prosecutor to the appellant that his explanation for leaving was not accepted.”  Later, in the course of argument, the Crown accepted that the evidence had been challenged but submitted, “it was not laboured”.  That is not, with respect, an accurate characterization of the line of cross examination pursued by the prosecutor or the tenor of his statements during his address.  Rather, the prosecutor pursued a tolerably clear and coherent attack which was apparently premised on the basis that the appellant’s post-offence conduct evidenced guilt.
44. [44]
    As can be discerned from the summary of the course of this short trial, the post-offence conduct was not opened by the Crown.  It was adduced from the mother and the police officer as an objective fact consistent with it being admissible for the purpose of connecting the appellant to the location of the alleged crime during the relevant time period.  By the time of the appellant’s evidence in chief, that evidence was regarded by the defence as being “uncontroversial”.  However, during the cross examination of the appellant, the prosecutor pursued a line of questioning consistent with seeking to establish a guilty intent evidenced by the post-offence conduct.  The pursuit of this line of questioning was a change of position by the prosecution to the extent that the Crown had not opened the case by reference to this evidence and what the evidence was said to have proved.  The change of position was further pursued in the prosecutor’s address.  The nature of the questions asked in cross examination and the statements made in the final address clearly insinuated to the jury that the post-offence conduct betrayed guilt.  With respect, the trial judge was required to have been alert to this change of position, to have ascertained the use which the Crown sought to make of the evidence and to have given a direction moulded to the facts in question.^[17]
45. [45]
    In R v White, Major J observed:^[18]

“Whether a jury should be permitted to consider evidence of post-offence conduct will depend on the facts of each case. The question that should be asked at the outset is: What does the Crown seek to prove by means of the evidence?”

46. [46]
    Adopting the reasoning of the High Court in Zoneff, because there was a risk of confusion or doubt as to the way in which the prosecution put its case, the trial judge should have inquired of the prosecution whether it contended that the appellant’s post-offence conduct might constitute evidence of consciousness of guilt.  Had that inquiry been raised, the prosecutor, adopting a position consistent with that of the Crown on this appeal, ought to have conceded that the post-offence conduct could not be relied upon to establish a consciousness of guilt and that it was not open for the jury to engage in consciousness of guilt reasoning.  In those circumstances, an Edwards type of direction would not have been appropriate because it would have run the risk of confusing, and giving the evidence undue prominence in the minds of, the jury.  However, the evidence had to be the subject of a direction which made it plain that despite the clear line of inquiry pursued in the cross examination and the statements made in the prosecutor’s address, the post-offence conduct could not be relied upon as evidencing consciousness of guilt.  A suitable direction would have been to the effect that the evidence concerning the appellant having left the scene in the afternoon of 11 December 2019 was relevant to connecting him to the scene of the alleged offending at the relevant times but could not be used as evidence of guilt.
47. [47]
    To adopt the words of Connolly J in R v Melrose,^[19] the course which was followed in this trial really resulted in the appellant getting “the worst of both worlds”^[20].  The post-offence conduct was not opened and there was no statement to the jury as to the basis on which it was contended to be relevant.  As a result, the evidence was not expressly said to have been adduced for the purpose of proving consciousness of guilt and did not attract the warnings that are given in respect of evidence of that nature.  However, because of the line of questioning pursued in cross examination and the statements made in address, it is unrealistic to suppose that the jury could have “put out of their minds evidence of this nature”.^[21]  A miscarriage of justice occurred because in my consideration it is reasonably possible that the failure to direct the jury may have affected the verdict.^[22]  In the context of this short trial, the line of cross examination pursued by the prosecutor and the statements made in his address, left as they were untouched by any direction from the trial judge, had the clear potential to prejudice a fair trial.