Andrews v The Queen A203/2002 [2003] HCATrans 670 (11 April 2003)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A203 of 2002

B e t w e e n -

ROBERT ANDREWS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J

KIRBY J

HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 11 APRIL 2003, AT 10.23 AM

Copyright in the High Court of Australia

MR S.W. TILMOUTH, QC: May it please the Court, I appear for the applicant. (instructed by Downs Lawyers)

MR P.J.L. ROFE, QC: May it please the Court, I appear with my learned friend, MS L.M. BOORD, for the respondent. (instructed by Director of Public Prosecutions for the State of South Australia)

McHUGH J: Yes, Mr Tilmouth.

MR TILMOUTH: Your Honours, the question on which special leave is sought relates to the issue of lies as corroboration or, as it is sometimes said, consciousness of guilt. In order to demonstrate, in my submission, that this is a suitable vehicle, may I take your Honours to the application book at pages 78 and 79, to where the directions as to lies were given.

Your Honours, the relevant passage commences at 78 at about line 27, where the topic of lies is introduced as "evidence of guilt", line 29, and the rest of the direction goes right through to about line 28 on the next page, all of which is cited in my written submission and that of Justice Gray. What I wish to emphasise for the current purpose, your Honours, is that in the course of this submission the phrase "lies as evidence of guilt" - as "a realisation of guilt", over to page 79, line 4, "evidence of guilt", line 10, "realisation of guilt", line 15, "consciousness of guilt", line 18 and line 23 - appears frequently during the course of this direction to the jury.

HAYNE J: The Full Court said that was misdirection, the respondent to the appeal says it is misdirection, you say it is misdirection. How does the point which you want to agitate become one of principle if everybody is in heated agreement that there has been a misdirection below?

MR TILMOUTH: Two reasons, if the Court pleases. The first question of principle, which is only for this Court to decide, given the state of authorities - Edwards and Zoneff, in particular - is the question whether the expression "consciousness of guilt" or "realisation of guilt" and all that it conveys and its aptness to mislead is appropriate in this kind of case.

KIRBY J: Yes, but that was debated in Zoneff and I expressed the view, like with the Supreme Court of Canada, that it is a very confusing expression, but the majority did not take that view. So, in very recent times, the Court has addressed that question and has decided against that point.

MR TILMOUTH: If the Court pleases, with respect, although what your Honour says is correct, Zoneff did not really decide that point. The question decided in Zoneff was when a judge put lies to a jury when they were not relied on by the prosecution. In Edwards the point decided was that the lies simply went to areas of credit. In my submission, your Honours, given the number of errors in this case and the emphasis, particularly at page 79 on "realisation of guilt" and "consciousness of guilt", this is an appropriate vehicle to consider that issue. This direction is really a pre-Edwards direction.

McHUGH J: It does seem to be an academic question in the context of this case, does it not, because the Full Court took the view that the directions did not accord with what had been stated by this Court in Edwards and in Zoneff, but the majority said that they were not satisfied there was any risk of miscarriage of justice.

MR TILMOUTH: Yes, that is true, but if I can take your Honours to page 157 of the application book, when the Chief Justice, with whom Justice Prior agreed on the question of the proviso - can I take your Honours to three lines from the bottom of that long paragraph at 157. This is Chief Justice Doyle explaining his view of the application proviso:

He -

being the trial judge -

did not explain specifically, topic by topic, how the lie might be said to proceed from a consciousness of guilt, or amount to a confession of guilt, but that is all that he failed to do.

With respect, there was much more by way of error than simply that. There was not only the failure to go through each topic, lie by lie, and identify them, but, secondly, there was no explanation about how they related to the evidence and how they might be used. Thirdly, the judge did not eliminate reasonable possibilities in the discussion on the issue. Fourthly, it was given unnecessary prominence, as both the Chief Justice and Justice Gray found. Fifthly, additionally to what the Court of Criminal Appeal found, there was no separation of lies going merely to credit as opposed to probative evidence and the submission is most of these eight areas identified by Justice Gray merely went to credit. So, in my submission, there were a plethora of errors, not the simple error that has been identified at page 157.

Can I remind your Honours at page 156, line 28, the Chief Justice expressed the fact that:

This aspect of the case that caused me some concern. It is yet another instance in which, to my mind, unnecessary prominence has been given by the prosecutor to the issues of lies.

Could I add this as well, if the Court pleases. It is not only your Honour Justice Kirby who is a lone voice in Zoneff. There is President Winneke in Nguyen's Case, the passage is outlined in my written submission; there is Justice Ormiston, also of the Victorian Court of Appeal in Franklin's Case; there was Chief Judge Hunt at common law as his Honour then was in Zheng's Case, also in my written submission; and, of course, there is the unanimous decision of the Supreme Court of Canada in White's Case, which demonstrates that there is a real point here and, in my submission, that Australian lower courts are unhappy with the current formulation based upon the tag "consciousness of guilt". The final point I would make, your Honours, is, quite apart from this case - - -

KIRBY J: If you want to finish the point on consciousness of guilt, do that, but I want to bring you down from the clouds into the reality of the actual lies in this case.

MR TILMOUTH: Does your Honour want me to deal with those?

KIRBY J: Can I ask you on that, as I understand it, the lies really were in two important respects. One concerned the handbag of the deceased which, it was said, was taken away by your client in order to give an illusion of robbery, and the second related to the alleged interest of the applicant in the matter of anal sex.

MR TILMOUTH: Yes.

KIRBY J: On that second one, one could think of many reasons why, in our society, the applicant would tell lies about that in order to cover up embarrassment or feelings of shame and so on. The judge did say that the jury should not draw too many inferences from that, I think, but one would have thought that there would be perhaps a need to be very clear about the alternative explanation for lying about such a topic. Was there anything else apart from the handbag on this issue of lies, in practical terms, in the trial?

MR TILMOUTH: Yes, your Honour. I accept, so far as it goes, the issue of the handbag. The topics that his Honour the trial judge put to the jury are at page 111 of the application book and it is at line 8, his Honour said "For example, whether he was into anal and oral sex". The oral sex was completely wrong, as the Court of Criminal Appeal would acknowledge, and, quite apart from the issue of anal sex that your Honour Justice Kirby has raised, the problem with the anal sex issue was that that evidence was admitted only for the purpose of relationship evidence on the issue of determining whether there would have been consent to anal sex, on the assumption, of course, the very important assumption, that the applicant was in fact the assailant.

That being so, the evidence relating to anal sex never had testamentary value, and never could be admitted as to evidence of the truth. You could therefore never draw an issue of lies on the question of anal sex probative of guilt, because there was never any evidence in relation to that matter properly before the jury as testimonial. That is why there is another issue about the relationship evidence in the grounds of appeal.

Then his Honour went on at page 111 line 9, about the handbag and the causes of his own injuries. As to the causes of his own injuries, there was a lot of evidence about prior injuries and in the end result - just on this, can I take your Honours to pages 113 and 114 of the summing up - they were pretty equivocal. Line 24:

As far as the injuries seen on the accused were concerned, Mr Barrett reminded you -

this is in the context of comments, rather than directions -

that Dr Donald said that it was possible that the scratch on the side of his nose was caused by a child's fingernail, and he reminded you that the deceased had told Dr Flock that the marks on his face were caused by Leanne, one of the children.

He reminded you that Dr Flock said that the bruising on the chest was 5 or 6 days old and that Dr Flock said that the scratches in the kidney area could have been caused by a dog's paw.

He reminded you that the other injuries on one of the buttocks and on both wrists were too old and irrelevant as far as the prosecution was concerned.

So they did not come to very much at all, in my submission.

Of the other matters identified, the short submission about those is that they were only internal inconsistencies, capable only of going to the applicant's credit. They could never go, in my submission, to affirmative evidence of guilt, and they are the remaining matters mentioned by Justice Gray in the headings from page 159 and so on. I do not go on to develop those points; they were really internal inconsistencies in relation to different accounts that the applicant had given in relation to when he gave statements to the police and said things to various people.

KIRBY J: The DNA evidence in this case was inconclusive, I think, is that correct?

MR TILMOUTH: Yes, it was, your Honour.

KIRBY J: The jury retired for seven and a half hours, is that correct?

MR TILMOUTH: I think it was quite long. I did not add up the number of hours. I can check that, but it was, I think, a lengthy period of retirement. The DNA evidence was - his Honour directed the jury that the prosecution derived no assistance from it, page 84 line 25.

KIRBY J: Your fundamental problem remains the one Justice Hayne raised at the opening. Save for the possibility of reformulating the Edwards/Zoneff principles, everyone agrees there was a misdirection and a want of proper direction, so that what we would be doing would be second-guessing the application of the proviso by the court which has that responsibility, the Court of Criminal Appeal of South Australia.

MR TILMOUTH: Your Honours, I can only add, with respect, that courts, including courts of criminal appeal, are bound at the moment to embrace and improve directions including the phrase "consciousness of guilt" and like phrases. In my submission, your Honours, that is what led Justice Ormiston in the case of Franklin, which I have quoted the relevant passage at 199 to 200, to comment that until this matter is dealt with or reached upon by the High Court the matter really stands, because of the binding authorities of Zoneff and Edwards, the way that they were put in this case subject to the lies.

His Honour expressly said - this is at page 200 of the application book, line 15 and 16, in my written submission, where his Honour talked about the recent expression of opinion in Canada, "in the High Court and in this Court" - that was a reference to President Winneke in Nguyen's Case. Effectively, his Honour said it is a matter for the High Court to determine.

So, in my submission, the principal ground on which leave is sought is a submission that this Court should embrace and accept the principles enunciated by the Canadian Supreme Court in White and that trial judges should not use the expression "consciousness of guilt" or like expressions. That is the main point.

KIRBY J: I think the expression should be banished and I said so in Zoneff, but no one else said so. It may not be timely to have that question considered by the Court, because the Court has not changed very much since Zoneff.

MR TILMOUTH: My submission is, your Honour, that that was not the question, the binding question, decided in Zoneff. Your Honours, one only needs to look at any of the law reports to see that one of the major areas in which trial judges are frequently overruled, apart from the Longman area, is this very area of lies.

HAYNE J: Yes, because prosecuting counsel are not required at trial to nail colours to the mast of what is said to be the lie which constitutes an admission. All of that follows, I would have thought, with stark clarity, both from Edwards and from what has been said repeatedly in intermediate courts of appeal.

MR TILMOUTH: That may be so, your Honour, but, with respect, the message has not got home, because of the sheer number of cases in which trial judges are reversed on this very issue. The real point is that in the phrase "consciousness of guilt" there is a very real sting which is inconsistent with the presumption of innocence, and it carries an innuendo or pejorative meaning that elevates this kind of evidence far beyond its real probative value. That is the point.

KIRBY J: One might say in this case, because of the danger of prejudice in the evidence relating to the anal sex, which, according to studies, is not as uncommon as might be suggested by that prejudice, it, on one view, called for very clear, affirmative and temporally related directions on lies at that point. That is Justice Gray's point in his dissent: that they were inadequate, and they were not timely, and they then lapse into this consciousness of guilt language, which has all the possibility of confusion.

MR TILMOUTH: I agree with that, if the Court pleases, but when his Honour also put to the jury that this question of anal sex was capable of a realisation of guilt, he was putting it to the jury on the issue of the identity of the offender. It was only ever admitted, and the Court of Appeal upheld its admission, not on that basis at all but on the basis that it was evidence of a struggle and perhaps an unwilling submission to anal intercourse, but that assumes in the first place that the applicant was the offender. The trial judge elevated that relationship evidence to being probative evidence through the avenue of consciousness of guilt, a use for which it was never admitted and could never be used, on principle.

Can I make this final point as well, your Honours. This case became dominated by this question of lies and so it enabled the jury, as it were, to scan, in some detail, various things that he said to people to compare the various versions. But nowhere did the trial judge direct the jury that what he had said to people was evidence for him, as well as against him. The effect of the whole direction was, practically speaking, in my submission, that everything he said was available against him, but hardly for him.

KIRBY J: I think Justice Gray makes all these points very powerfully in his dissent.

MR TILMOUTH: Yes, but, as I put it to your Honours, in the end result, the basis on which the proviso was applied at page 157, of one error, in my submission, is plainly wrong. There were a plethora of errors. They were important and they were substantial. If the Court pleases.

McHUGH J: Yes, thank you, Mr Tilmouth. We need not hear you, Mr Rofe.

The applicant seeks special leave to appeal to agitate a number of questions, including, in particular, questions relating to the directions to be given to a jury about what use may be made of lies told by an accused.

The principles to be applied in such cases have been stated in Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193 and Zoneff v The Queen (2000) 200 CLR 234.

The Full Court of the Supreme Court of South Australia concluded that the directions given at the applicant's trial did not accord with those principles. It follows that the content of those principles would not fall for consideration in this Court if special leave to appeal were granted. A majority of the Court has a clear view that it is not arguable that there has been any miscarriage of justice in this case as the result of the directions that were given at the trial. That was also the view of the majority of the Full Court of the Supreme Court of South Australia.

Accordingly, by majority, we consider that special leave to appeal should be refused.

AT 10.43 AM THE MATTER WAS CONCLUDED