R v Cook [2004] NSWCCA 52

New South Wales Court of Criminal Appeal

CITATION : R v Cook [2004] NSWCCA 52 revised - 18/03/2004 HEARING DATE(S) : 27 February 2004 JUDGMENT DATE : 12 March 2004

JUDGMENT OF : Ipp JA at 1; Simpson J at 2; Adams J at 73 DECISION : Appeal against conviction allowed, verdict of guilty set aside, new trial ordered

CATCHWORDS : appeal against conviction - leave to appeal against sentence - threatening to inflict actual bodily harm by means of an offensive weapon with intent to have sexual intercourse - admission of evidence of flight - directions regarding consciousness of guilt - lies - the proviso to s6(1) of the Criminal Appeal Act 1912 Crimes Act 1900 (NSW) s61K(b) LEGISLATION CITED : Criminal Appeal Act 1912 s61 Evidence Act 1995 (NSW) s137 Edwards v The Queen (1993) 178 CLR 193 R v Bridgman (1980) 24 SASR 278 R v Fowler [2000] NSWCCA 142, unreported, 23 May 2000 R v Heyde (1990) 20 NSWLR 234 R v Lucas [1981] 1 QB 720 CASES CITED : R v Melrose [1989] 1QdR 572; (1987) 30 A Crim R 332 R v Power (1996) 87 A Crim R 407 (Court of Criminal Appeal, South Australia) R V Sutton (1986) 5 NSWLR 697 R v Taranto [1999] NSWCCA 396, unreported, 16 December 1999 Wilde v The Queen (1988) 164 CLR 365 Zoneff v The Queen [2000] HCA 23; 200 CLR 234 PARTIES : Crown - Respondent Daryl Norman Stanley Cook - Appellant FILE NUMBER(S) : CCA 60166/03 COUNSEL : B Knox SC - Crown CB Craigie SC - Appellant SOLICITORS : S Kavanagh - Crown M Wells - Appellant

LOWER COURT District Court JURISDICTION : LOWER COURT 01/31/0202 FILE NUMBER(S) : LOWER COURT Mahoney ADCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60166/03

IPP JA SIMPSON J ADAMS J

Friday 12 March 2004 REGINA v Daryl Norman Stanley COOK Judgment 1 IPP JA: I agree with Simpson J. 2 SIMPSON J: On 19 July 2002, following a two week trial by jury in the District Court in Sydney, the appellant was convicted on an indictment which charged him with the offence of threatening to inflict actual bodily harm by means of an offensive weapon with intent to have sexual intercourse, a charge brought under s61K(b) of the Crimes Act 1900. On 20 November 2002 he was sentenced to imprisonment for twelve years with a non-parole period of 9 years, to commence on 12 July 2001. The appellant appeals against conviction and seeks leave to appeal against the sentence.

the Crown case 3 The Crown case was that on the evening of 5 April 2001, the complainant, a female then aged seventeen, went with a group of friends to various locations in and around Port Macquarie. During the course of the evening they consumed some alcohol. At about 12.30 am on the morning of 6 April the complainant was with friends in front of a kebab shop in the town. The appellant was present in the vicinity, although not part of the complainant's group. The complainant was introduced to him by an employee of the kebab shop, a friend of hers (Brad). The complainant sat on one of two seats outside the shop and talked to her friends for a time. The appellant sat nearby on the other seat. He smoked some cannabis. 4 When the complainant stood up to leave, the appellant asked her to have sex with him. She declined. Asking one of the males in her group (Michael) to wait for her, the complainant walked towards the toilets. To do so, she walked past a Coles car park, where she saw the appellant talking to a security guard. (This was Glen Loersch, who gave evidence in the Crown case.) She became aware that the appellant was following her. She used a mobile telephone to contact Michael and spoke to her female friend (Samantha Jolly). She told Ms Jolly that she was being followed and asked Ms Jolly to come to her aid. She entered a cubicle in the toilet block and locked the door. She sent Michael an SMS message, again saying that she was being followed and requesting assistance. 5 She sat on the toilet. The appellant climbed through a window and entered the cubicle. The complainant attempted to do up her clothing. The appellant took a knife from his cap and held it to her throat. Still holding the knife to her throat, he unlocked the door and told the complainant to walk out with him and pretend they were in love. She screamed. He held his hand over her mouth. She bit his hand and called for help. He told her he wanted her to go to the park. She struggled. He told her that if she did as he said he would not have to use the knife. He said that she had to "do it" with him there and then. At this point they were both under a light, in or near a main street. The complainant stumbled. The appellant straddled her body, still holding the knife to her. Because the complainant was screaming, the appellant again placed his hand over her mouth and continued to press the knife to her throat. The complainant continued to struggle. The appellant took hold of her jeans and the buttons came undone. The appellant was in possession of a police scanner. 6 Ms Jolly arrived on the scene and shouted at the appellant to release the complainant. A voice came over the scanner, warning the appellant that the police were coming and that they knew who he was. The appellant said to the complainant: "Look what you made me fucking go through. Look what you made me fucking go through." 7 He pressed the knife into the complainant, causing real pain, and ran off. Immediately before doing so, he told the complainant that she would "pay for it". 8 The complainant ran back to Coles, screaming, and spoke to the security guard who contacted police. Police arrived soon after. 9 At some time in the early hours of 6 April, the appellant went to the home of his former de facto, Deborah Bruen, and got into her bed as she was sleeping. She threatened to call police and he left. He returned at about 7.00 am asking to collect some of his property that he had left there, and she permitted him to do so. Without Ms Bruen's knowledge, the appellant left a plastic bag containing the clothes he had earlier been wearing. 10 On 9 April the appellant left the bag of clothes in a car belonging to Christine Oldfield, the owner of business called Slipstream Plastics. (The evidence does not disclose when or how the appellant retrieved the bag from Ms Bruen's home.) On 11 April Ms Oldfield removed the bag from her car and put it in the storage room of her business premises. 11 At about midday on 11 April the appellant went to the premises of Slipstream Plastics and took possession of the plastic bag. At almost the same time two police officers arrived. They told Ms Oldfield that they wished to speak to the appellant. The appellant ran through the premises and jumped out a window and hid behind an upturned boat in what was described in the evidence as "a compound". He then disappeared. 12 The appellant telephoned Ms Bruen, and went to her home at about 3.30 pm on the same day. He told Ms Bruen that he had been accused of the attack on the complainant, but denied that he had been involved. Twenty minutes later police arrived and knocked on the door. The appellant climbed into a manhole in the bathroom and secreted himself in the ceiling cavity. Just before doing so he threatened Ms Bruen with reprisals in the event that police located him. 13 Police were able to arrest the appellant. Detective Senior Constable Durbridge told the appellant that he was under arrest for a breach of an apprehended violence order and also in relation to the alleged assault and attempt to have sexual intercourse on 6 April. He then asked the appellant if he understood that, to which the appellant replied: "Come on, this is crap." 14 Detective Durbridge and other police officers then conveyed the appellant to the Port Macquarie Police Station. En route to the police station the appellant said: "This is shit. Look, I was there that night. I was talking to a security guard at Coles. He was talking about his motorcycle. When I was talking to him I heard screaming. I could see this girl running and then I saw cop cars everywhere. … I was at the kebab shop in Horton Street and bought a kebab off Fish, a guy who works there … I ate the kebab out the front …" 15 At the police station the appellant was taken to an interview room, where he was interviewed, and the interview was electronically recorded. The appellant denied having been involved in the assault on the complainant. 16 In the interview the appellant was asked to, and did, give an account of his movements on the evening of 5 April and the early hours of 6 April. It is not easy to make sense of the answers given by the appellant, as recorded. What follows is my interpretation of those answers. The appellant said that early on the morning of 6 April he had been outside Coles, talking to a security guard (Glen Loersch). He said that he heard screaming; that he had purchased a kebab from "Fish", who worked at the kebab shop and that he ate the kebab sitting on some chairs out the front of the kebab shop. He described the arrival in the vicinity of various people, including a male who parked his car in the car park. Of this person he said: "And the guy got out and walked in and then would have been probably two minutes after Glen had walked in, I heard a heap of yelling and screaming and going on over near the bus depot, and I thought well, the bus has just got in, like minutes beforehand -- and, and drove off, you know, and then the next minute there was a couple of chicks yelling and screaming and going on over near the toilets in the bus terminal there. And it looked like one, one person was chasing another person and then the security come out and police come and you know there was people everywhere sort of thing, and then I ended up just leaving, I walked from where Glen's bike was, I walked across and up round to bridge, Bridge Street." 17 After a number of additional questions and answers, to which it is not necessary here to make reference, Detective Durbridge told the appellant that he wanted to ask further questions in relation to a domestic violence order. Detective Durbridge showed the appellant a document which the appellant identified as an Apprehended Domestic Violence Order ("ADVO") against him, issued on the application of Ms Bruen. He said that it was for a period of six months, and that he had been informed by an employee at the court that it expired on 9 April. Detective Durbridge pointed out that the order in fact expired on 9 May. The appellant said that he had complied with the terms of the order during its currency but implicitly acknowledged that he had approached Ms Bruen, although he insisted that this was after the expiration of the order. He volunteered that Ms Bruen was pregnant to him.

the defence case 18 The appellant did not give evidence in the trial, relying instead upon the evidence elicited in cross-examination of the Crown witnesses, and the contents of the recorded interview of 11 April.

the appeal 19 Three grounds of appeal against conviction were ultimately pleaded. They were framed as follows: "There was a miscarriage of justice and that the accused did not receive a fair trial in that: (1)(A) His Honour erred in admitting evidence of flight. (1)(B) Having admitted evidence of flight, his Honour erred in not directing the jury how they were to use that evidence of flight as part of the circumstantial case. (2) The Crown erred in categorising the accused's assertion that he was outside Coles at the time of the offence, as a 'lie told in consciousness of guilt'. His Honour's direction as to how that evidence was to be approached was insufficient to correct that error."

ground (1)(A): admission of evidence of flight: 20 At an early stage the Crown made plain its intention to adduce evidence of the appellant's conduct of 11 April, both at Slipstream Plastics, and later, at Ms Bruen's home, as evidence of flight signifying a consciousness of guilt. The specific conduct at Slipstream Plastics was identified as his running through the premises and climbing out a window, hiding, and then disappearing, on the arrival of police; the specific conduct at Ms Bruen's home is identified as his having climbed into the manhole and secreted himself in the roof, again on the arrival of police. 21 Evidence from which a jury may be asked to infer that an accused person has acted out of a consciousness of guilt is tendered in the prosecution case most commonly in relation to lies, either in or out of court, alleged to have been told by the accused person. A considerable body of law with respect to the circumstances in which such evidence may be admitted, and the way it may be treated, has developed: see, for example, Edwards v The Queen (1993) 178 CLR 193; Zoneff v The Queen [2000] HCA 23; 200 CLR 234; R v Heyde (1990) 20 NSWLR 234; R v Sutton (1986) 5 NSWLR 697; R v Fowler [2000] NSWCCA 142. The principles were drawn together by Gleeson CJ in Heyde in the following terms: "If, by evidence or admission, it is proved that an accused person has told a lie, that is to say, made a deliberately false statement, in Court or out of Court, then, provided various conditions are fulfilled, the jury may regard the lie as demonstrating a consciousness of guilt and may treat the lie as corroboration. … However, common sense and ordinary human experience indicate that a judgement as to whether a lie reveals a consciousness of guilt, although one which people not infrequently make, may, depending upon all the circumstances, be very difficult. People tell lies for many reasons other than a consciousness of guilt. For example, a person may tell lies to escape a false accusation, just as a person may be put to flight by the threat of unjust arrest." 22 The conditions to which his Honour referred were stated in R v Lucas, (Ruth) [1981] 1 QB 720 and adopted in the judgment of Clarke JA in Heyde. It is apposite to note that the conditions are directed to the determination of whether or not the lies upon which the Crown sought to rely are capable of amounting to corroboration. The four conditions laid down in Lucas are:

(i) that the lie is deliberate; (ii) that it relates to a material issue; (iii) that the motive for the lie is a realisation of guilt and a fear of the truth; (iv) (where relevant) that it is shown to be a lie by evidence other than that of an accomplice who is to be corroborated, that is, by admission or by evidence from an independent witness. 23 To these I would add that the lie must be capable of being seen as indicating consciousness of guilt of the specific offence with which the accused is charged. 24 Two separate issues arise when the Crown tenders such evidence. The first goes to the admission of the evidence. In order to admit the evidence tendered, the trial judge must be satisfied that it is capable of meeting the five conditions outlined. If it is not so capable then the evidence is inadmissible. If, however, it is so capable, then the evidence may nevertheless be rejected pursuant to one of the discretions available to a trial judge, for example, the discretion conferred by s135 of the Evidence Act 1995, or following the exercise required by s137 of that Act. The second issue, which arises only where the evidence has been admitted, concerns the directions to be given to the jury by the judge as to the use that may be made of the evidence. 25 The principles developed in relation to evidence of lies are readily adaptable to the circumstance where the Crown tenders evidence of flight said to be indicative of a consciousness of guilt. Evidence of flight may be admitted where the jury may legitimately infer that the flight was occasioned by consciousness in the accused person of guilt – that is, of guilt of the offence with which he/she is charged. Here, the jury was asked to infer that, because the appellant fled on two occasions when the police approached, he exhibited a consciousness of guilt of the attack on the complainant. If the evidence were admitted, the appellant was placed in an awkward position. He could attempt, either through evidence given by him, or by witnesses called by him, or by cross examination of the Crown witnesses, to explain away his conduct in a manner that would exonerate him of the attack on the complainant (even if that implicated him in some other offence), or he could leave the evidence as it was given, with the obvious possibility (even probability) that the jury would draw the inference adverse to him. 26 Counsel who appeared for the appellant at trial objected to the evidence. The basis for the objection lay in s137 of the Evidence Act, which is in the following terms: " 137. Exclusion of prejudicial evidence in criminal proceedings In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant." 27 Application of s137 requires a balancing, by the trial judge, of the probative value of the evidence against the danger of unfair prejudice to the defendant. If that balancing process results in a finding that the probative value is outweighed by the danger of unfair prejudice, the Court is constrained to refuse to admit the evidence. No element of discretion arises. 28 At the commencement of the trial a voir dire was conducted. Before the judge was a body of evidence, including statements of Ms Oldfield, Ms Sandra Turnham (also employed at Slipstream Plastics), and Ms Bruen, transcript of the recorded interview with the appellant of 11 April, and other statements it is not necessary to mention. Oral evidence was given in support of the Crown. The appellant also gave evidence. He claimed that, as at 11 April, an ADVO against him in relation to Ms Bruen was in existence, but that he had been told, by officers of the Local Court, that it had expired. He said that on 14 December 2000 he had been sentenced to imprisonment for one month for contravention of the ADVO, and that, on 1 June 2001, he had been sentenced to three months' imprisonment for an assault; that on 1 February 2001 he had failed to appear, as he was required to do, at the Port Macquarie Local Court. 29 When asked why he had left Slipstream Plastics at the time police arrived, he answered that he had been told that police wanted to speak to him about his having gone to Ms Bruen's home earlier that day. When asked why he had secreted himself in the manhole at Ms Bruen's home, he answered: "Because I had already been to gaol for breaching the AVO on one matter and I was told on one hand that I was still outstanding and on another that I had it written down from the stenographer lady at Port Macquarie Court that it had been finished." 30 In answer to further questions he said that he did not want employees of Ms Oldfield's at Slipstream Plastics to know that he had a criminal record and he did not want any confrontation concerning the ADVO in their presence; he said that Ms Bruen and "a couple of other people" had told him that police wanted to speak to him in relation to a breach of the ADVO. The balance of his evidence was in a similar vein. 31 It was at all times in the trial common ground that the ADVO relating to Ms Bruen was, as at 11 April, current. 32 The essence of the appellant's case on the question of the admission of the flight evidence was that in order to give an explanation for his conduct he would necessarily reveal the existence of the ADVO, his previous breach of it, and the assault. This was the reason, he contended, for his flight when police approached him. The prejudice to the appellant is plain. Not only would his explanation expose him as a person with a criminal record (the assault and the previous breach), it would also expose him as a person with a history of violence against women. In the context of the charge he faced, that exposure would have particular poignancy. His counsel went further and submitted that, if the flight evidence were admitted, the whole of the appellant's criminal record (which is lengthy) would become known to the jury. Of course, if the appellant's answers to Detective Burbridge that he believed that the ADVO had expired (whether the belief was correct or incorrect) were the truth, then he could not have believed that he had anything to fear (on that score) from the police. Those answers could well have raised questions in the minds of the jury about the veracity of any evidence he subsequently gave along the lines of his evidence on the voir dire.

the voir dire judgment 33 The trial judge disbelieved the evidence of the appellant, which he described as "a tissue of self serving lies". He contrasted the position taken by the appellant in the interview of 11 April with the answers given by him in his evidence on the voir dire: the former being that he believed that the ADVO had expired and did not operate to bind him; and the latter that he fled from police, on each of the two occasions, because he believed that police were looking for him to arrest him for breach of a then current ADVO. The judge described the two sets of answers as "totally inconsistent". 34 Turning his mind then to s137, his Honour said: "I am satisfied that s137 of the Evidence Act would be misapplied if I were to exclude the evidence of flight on either occasion. To my mind any prejudice to him by the Crown adducing evidence of flight would be a very real risk. It is not in my view, however, unfair prejudice within the meaning of s137 of the Act. … In this case the alleged offender concedes that he has 23 pages of prior convictions recorded against him and that the general nature of his bad character would be involved in him explaining his flight on either or both of the occasions sought to be relied upon by the Crown. S137 operates to command me to reject the evidence if I am of the opinion that the probative value of the evidence of flight is outweighed by the danger of 'unfair prejudice' to the alleged offender. 'Unfair prejudice' is the subject of various judicial comments. … But to my mind the unfairness is not to be looked at from the point of view of the weight of the prejudice, but it is a procedural concept whether or not the jury would be likely to misuse the evidence. That is the sense in which 'unfair prejudice' is used. The flight, not once but twice on the same day, despite the fact that the explanation for the flight, even if it were to be believed, was merely from the consequences of keeping company with the lady that he spent the night with the night before, and on his own version of events with whom he had a standing arrangement to individually and serially attend [a pharmacy] so they could each pick up their methadone dose and meet together in a coffee shop afterwards, to my mind the risk that he claims to have been fleeing from, on his version of events, was a non-existent risk. I refuse to exercise any jurisdiction under s137 of the Evidence Act . It would be totally inappropriate to do so." 35 On appeal, a challenge was made to the findings of fact contained within this judgment. It was put that the passage in which his Honour found inconsistency between the appellant's evidence at interview and his evidence on the voir dire was "at odds with the known facts" and therefore not open to his Honour. This may or may not be so. I am unable to see that that factual finding is or was a material consideration to the question for determination under s137. The exercise on the voir dire was to determine whether the evidence of flight, if permitted to go to the jury, would have had the unfairly prejudicial effect set out in s137. If the evidence were to be admitted, then the credibility of any explanation given by the appellant would be a matter for the jury. I am satisfied that the approach taken by the trial judge was erroneous. 36 What s137 called for was a consideration of the probative value of the evidence of flight relative to its prejudicial effect to the extent that that could or would be unfair. The probative value of the evidence can be assessed merely by examination of the evidence itself. In this case, that examination inevitably gives rise to a conclusion that the probative value to the Crown case was very high indeed. Within five days of the assault on the complainant, the appellant twice fled when police approached. The inferences available to a jury are obvious. 37 The balancing exercise required by s137 cannot, however, be undertaken without an appreciation of any explanation an accused person might seek to advance in order to nullify the adverse inferences that would, absent explanation, arise. That was the purpose of the evidence given by the appellant in the voir dire. The effect of his evidence there was to put before the judge evidence of the response that the appellant would make, if the Crown evidence were admitted. This meant that the evidence of flight could be seen in its complete context. What the appellant told the judge was that his explanation for his flight would necessarily disclose to the jury a prior history of violence towards a female, disregard of the law and contravention of restraining orders serious enough to warrant his incarceration. There was no other way (on the appellant's case) that he could remove the sting from the flight evidence. But the explanation carried its own, serious, sting – disclosing his history of violence and breach of the law. The proposal by the Crown to adduce the evidence of flight presented to the appellant a dilemma. On the one hand, he could say nothing about the evidence, leaving the jury to draw the inevitable inference that he fled when the police approached because he was conscious of his guilt of the assault on the complainant; or he could explain it, which necessarily involved revealing prior criminality of a related kind. The prejudicial effect of the explanation was what s137 required to be balanced against the probative value the Crown evidence would otherwise have had. That exercise was not explicitly undertaken by the trial judge. The s137 exercise also called for consideration of directions that could be given to the jury in order to ameliorate the impact of the knowledge of the appellant's prior conduct. 38 As the judge pointed out, s137 is not a section that confers a discretion on the trial judge, although the balancing exercise has been said to be "akin" to the exercise of a discretion. S137 calls for the exercise, not of a discretion, but of judgement. It is in that sense that it is "akin" to the exercise of discretion; whilst there will be cases in which the facts are so plain that they admit of only one outcome, there will be many in which minds may properly differ. The exercise of judgement is not, in my view, akin to the exercise of discretion in the sense that, if the exercise is not performed in accordance with the section, it cannot then be undertaken by an appellate court. This Court may, in my view, consider whether the result of the balancing exercise, even if performed having regard to irrelevant considerations, was correct. 39 Counsel for the appellant submitted that: "Where the explanation involves revealing further offences generally the discretion should be exercised in favour of exclusion." 40 In favour of this proposition two authorities were cited: R v Power (1996) 87 A Crim R 407 (Court of Criminal Appeal, South Australia) and R v Taranto [1999] NSWCCA 396, unreported, 16 December 1999. In my opinion neither is authority for a proposition as broadly stated as that extracted above. In Power, two appellants had been told by police that they were under suspicion for a series of bank hold-ups. Each denied any involvement. Five days later the two appellants left Australia, travelled to the United Kingdom and there remained for some time. The appellants explained their departure from Australia (it seems that this explanation was given in the trial itself) and the other conduct referred to by saying that they panicked when told of the suspicion directed towards them. While away the appellants used false names, concealed their identities, took a close interest in the activities of police, and indicated, by various intercepted remarks, that they were not remaining in the United Kingdom out of their own free choice. They later returned to Australia and were eventually arrested and charged. Evidence of their departure from Australia was admitted in their trial. On appeal, Doyle CJ, with whom Millhouse and Williams JJ agreed, held that the evidence was admissible and constituted evidence, upon which, taken as a whole, the jury might conclude that the conduct of the appellants manifested a consciousness of guilt. The Court held that the mere fact that a credible explanation is advanced is not of itself sufficient to render the evidence inadmissible. 41 Having referred to R v Bridgman (1980) 24 SASR 278 and R v Melrose [1989] 1QdR 572; (1987) 30 A Crim R 332, Doyle CJ added: "I should add that this was not evidence of conduct which should or could be put aside as the result of an unguarded moment or action … Nor could be the evidence which brought in its train other complications, such as the disclosure of other misconduct or the fact that the accused was under suspicion of having committed other offences: cf Melrose . When those problems arise there are various ways of dealing with them and they do not necessarily result in the evidence being inadmissible." 42 Bridgman was also a South Australian decision, this time in the Supreme Court. It was a decision given during the course of a criminal trial in which the accused was charged with robbery with violence and assault. The Crown sought to lead evidence that the accused had absconded from bail shortly after the events giving rise to the charges. The Crown sought to rely on the evidence as evidence of flight demonstrating a consciousness of guilt as well as for the additional purpose of providing an explanation for the faulty memories of some witnesses. Having conducted a voir dire, White J rejected the evidence. During the voir dire the accused gave evidence that at the time of the commission of the robbery with which he was charged he was on parole, having been released from prison a week or so earlier, and having served about eight months of an eighteen months term of imprisonment. Conviction for the robbery would almost certainly result in the revocation of parole. The reasons given by White J for rejecting the evidence are significant. His Honour said: "I was satisfied that flight from the prospect of serving the ten months' balance of the original term of imprisonment was the more substantial reason for fleeing." 43 Whatever the prevailing regime was in South Australia in 1980, I am satisfied that it is not the role of a trial judge in NSW, under the Evidence Act, to make a finding of fact about the actual reasons for flight where such evidence is given on behalf of the Crown. That remains the province of the jury. The role of the judge in NSW, at least post-1995, is merely to determine the relative probative value against the danger of unfair prejudice that might result. In saying this, I do not mean to lay down a blanket rule that, in considering evidence on a voir dire in which the issue is the admissibility of evidence having regard to s137, there is never any room for findings concerning credibility. There will be occasions when an assessment of the credibility of the evidence will be inextricably entwined with the balancing process. That means that particular caution must be exercised to ensure that the balancing exercise is not confused with the assessment of credibility, a task committed to the jury. There may, for example, be occasions on which the accused's response is so preposterous as to give rise to the conclusion that it could be accepted by no reasonable jury. The credibility exercise, in those circumstances, is to determine whether the evidence given by (or on behalf of) the accused is capable of belief by the jury. If it is, then its prejudicial effect must be considered. If it is not, then the balancing exercise may well result in an answer favourable to the Crown. That is essentially because any prejudice arising to an accused from putting a preposterous explanation to the jury would not be unfair prejudice. 44 In Taranto, which, as I understand it, is the authority principally relied upon on behalf of the appellant, the appellants were tried on charges of wounding with intent to murder, and, alternatively, malicious wounding with intent to do grievous bodily harm. The Crown tendered evidence that, after the commission of the offence, one of the appellants had stayed away from home for some time, and when police attended at his home he ran away and hid inside the roof space of a garage. This evidence was tendered as evidence demonstrating consciousness of guilt. In the absence of the jury the trial judge was told that the appellant faced unrelated charges of goods in custody, possession of a prohibited drug and possession of an unlicensed pistol. The evidence of his seeking to avoid apprehension was, nevertheless, admitted. In this Court, Hidden J held that it was open to the trial judge to admit the evidence. 45 Hidden J wrote: "48 … His Honour admitted the evidence saying it was a matter for Mr Taranto how he dealt with it and intimating that, if he chose to reveal those outstanding charges, any prejudice would be remedied by appropriate direction. 49 I am not persuaded that his Honour fell into error in this regard. Mr Taranto gave evidence of other reasons for his flight. The situation is materially different from that considered by White J in The Queen v Bridgman … where the only explanation the accused could give for his flight was his fear that his parole in respect of another offence might be revoked if he were found guilty of the offence for which he stood trial. Similarly, there is no parallel between this case and the The Queen v Hartwick (Court of Appeal of Victoria, unreported, 20 December 1995). In that case, evidence of flight was held to have been wrongly admitted in the appellant's trial for armed robbery because the same evidence had been used in an earlier trial of the appellant for a different armed robbery, of which he had been convicted. Again, it seems that the only reason the appellant could have advanced for his conduct was his involvement in the other offence. 50 That evidence of flight may properly be admitted in circumstances such as the present case was recognised in R v Melrose . … If the same objection should be taken at the appellant's retrial, it would be a matter for the trial judge to determine in the light of the circumstances as he or she finds them. I say no more than that, on the material before him, it was open to his Honour to have admitted the evidence." 46 I see nothing in these passages, which represent the whole of the reasoning of Hidden J on this issue, to support any general statement concerning the admission or otherwise of evidence where admission might put the accused person in the position of explaining his conduct in such a manner as would disclose the commission of other offences. 47 In my opinion none of the authorities to which reference has been made support the proposition advanced on behalf of the appellant. There is no general principle that, when the explanation for flight involves revealing other offences, the evidence should be rejected. Indeed, it is part of the conventional direction in relation to evidence indicative of a consciousness of guilt (whether of lies, or flight, or otherwise), that the jury be alerted to the possibility that the accused person has undertaken that course of conduct by reason of consciousness of guilt, not of the offence charged, but of some other offence or discreditable conduct. 48 Here, however, there, was, as I have said above, an added poignancy. The admission of the evidence put the appellant in an awkward position. His response to the evidence not only disclosed previous criminal offences, it disclosed criminal offences with a disturbingly close relationship to the offence with which he was charged. That the evidence would have a prejudicial effect is clear. The appellant's explanation, although disbelieved by the trial judge (and disbelieved in terms forcefully expressed) was not, in my view, incapable of belief by a jury. The appellant had gone to Ms Bruen's home in the early hours of the morning, while she was in bed, and joined her, uninvited, in her bed. Whatever he said to police about his state of mind with respect to the currency of the ADVO, it was then undoubtedly still current. His attendance at the house put him in breach of it, and having regard to the circumstances, in serious breach. It remains to be determined whether the prejudicial effect of the evidence was unfair. Bearing in mind the substance of the charge the appellant faced, and the nature of the evidence he would have to adduce in order to meet the flight evidence, I have come to the conclusion that the prejudicial effect was unfair, and that it outweighed the probative value of the Crown evidence. In this regard, it cannot be overlooked that the decision to admit the evidence may well have been a factor in the consideration of whether the appellant was to give evidence or not. 49 I am therefore satisfied that the evidence was wrongly admitted.

ground 1(B): directions regarding consciousness of guilt: 50 Where evidence of flight is relied upon as evidence of a consciousness of guilt, the principles of law applicable to directions which must be given to the jury are, in my view, identical to those which govern the directions to be given to a jury where lies are relied upon as such evidence. Those principles are stated in Edwards, Zoneff and Hyde. The conventional direction in relation to lies drawn from those, and other cases, requires a degree of adaptation in order to be accommodated to evidence of flight relied upon by the Crown for the same purpose. In particular, it is necessary, in my opinion, to draw attention to the circumstance that an accused person may behave in a way suggestive of a recognition of guilt for reasons other than such recognition of guilt – for example, fear of being unjustly accused. It is also necessary to point out to the jury that the consciousness must be a consciousness of guilt of the specific offence charged, and not, for example, of some other offence or some other discreditable conduct. The flight (or lie) may only be used as evidence of a consciousness of guilt of the offence charged where the jury is satisfied that it points unequivocally to consciousness of guilt of that offence and not some other offence or discreditable conduct. 51 The judge gave no direction at all in relation to the way the jury were entitled to use the evidence of flight, merely referring, on two occasions, to the evidence. He did not draw to the jury's attention the possibility of that conduct being attributable to some other cause, such as fear of being unjustly accused, or consciousness of guilt of some other offence. He made no reference to the cross-examination of Ms Bruen, through whom the evidence of the existence of the ADVO was elicited. No additional directions were sought on behalf of the appellant and, accordingly, Rule 4 of the Criminal Appeal Rules applies. The appellant must obtain the leave of the Court to argue the ground. On his behalf it was argued that leave should be granted because the failure to give the direction led to a miscarriage of justice. 52 I have come to the view that this ground of appeal also is made good. The direction on how the jury could make use of the evidence of flight is fundamental. The direction should be given, in hypothetical terms, even where there is no evidence of an alternative explanation. Where there is actual evidence of an alternative explanation, that evidence should be drawn to the jury's attention, and the way it is to be assessed should be explained. Here, although the appellant did not give evidence in the trial proper, there was some evidence, from the cross-examination of Ms Bruen, sufficient to found its reference to a jury.

ground 2: lies 53 It is to be observed that part of the complaint raised by this ground concerns what was said by the Crown Prosecutor in his address to the jury. The second part of the complaint concerns the absence of adequate directions on the part of the trial judge. 54 I have outlined the accounts of the events given by the appellant, firstly in the police car, and secondly during the interview. 55 There is one difference, perhaps of substance, between the two accounts given by the appellant. In the police car he said that he was in the process of speaking to the security guard when he heard screaming. In the interview he said that the security guard had re-entered the store when he heard the yelling and screaming, and that he (the security guard) re-emerged from the store after the commotion commenced. Both accounts were in conflict with the evidence given by the security guard, Glen Loersch. Mr Loersch's evidence was that he had seen the appellant outside Coles and spoken briefly to him before re-entering the store. He heard screams coming from nearby and went outside. He saw two girls running up the footpath towards Coles. One of them told him that a man had just held a knife to her throat. He was asked whether, at the time he heard the screaming and walked back outside, he had made any observations as to who was in the area. He said: "As I walked out the door there was nobody in the car park area at all." 56 He was specifically asked then if he had seen the appellant and he answered: "Didn't see him anywhere in the area." 57 In cross-examination Ms Jolly was asked about the point at which she began to make her way to the toilets. She was asked: "Did you see anyone outside Coles?"

to which she answered: "No, I didn't." 58 In his address to the jury, the Crown Prosecutor said: "What is most important here is what the accused told police about that particular point in time. In the motor vehicle coming back from after his arrest after coming down from the manhole he told the police a number of things. You will have to assess that evidence yourselves. In the Crown submission, what he said to the police effectively is that when the screaming started in the toilet block he was outside Coles speaking with Glen Loersch. That is clearly not the case. Later when he gives a record of interview to the police he says something a little different. He says that before the screaming started Glen Loersch had walked back into Coles, and I think he puts it at one or two minutes in the record of interview, and he says he'd gone in and heard the screams from the toilet block. Again the accused puts himself outside Coles at the time the screaming starts. He goes further. What he says is that he was still there when the police came. He says he was still there and he observed two girls running from the toilet block down to Coles Supermarket. But Mr Loersch says he was not there at that time. Again, in the Crown submission, he is telling lies. In fact he wasn't outside the toilet block at this critical point in time. So you have a number of things coming together. You have Mr Loersch inside at the cigarette counter. You have Samantha Jolly walking past the Coles Supermarket, which is where she was when the screaming started. You have screaming coming from the toilet block. You have Samantha Jolly taking her shoes off in the car park and going because she recognised Michelle's screams. You have Glen Loersch coming out to the front of that supermarket entrance and the accused was not there on their evidence. If you accept their evidence you would find as a fact he wasn't there at the time and therefore he lied to police and that again begs the question, 'well, where was the accused if he's not where he says he was?'" 59 The Crown did not explicitly tell the jury how he proposed they should use what he characterised as lies on the part of the appellant. However, it is difficult to see that he could have put that before them for any purpose other than as the basis for an inference that the appellant was conscious of his guilt of the offence. At no stage (in the context of the lies he attributed to the appellant) did he use the expression "consciousness of guilt". (He had used the expression, or a variation of it, in a number of other contexts – when addressing the jury on the evidence of flight, with respect to the appellant's disposal of the bag of clothes, and in relation to a prison informer witness who gave evidence of the appellant's having sought to procure him to give evidence of a false alibi.) In the context of the alleged lies the expression was raised for the first time by counsel for the appellant, in his address. He said: "One thing that the Crown has made something of is he has suggested that you can find that in the accused's interview he told lies, and in particular he drew your attention to questions answered by the accused in which the accused gave an account of being outside the Coles shop hearing people running and screaming. And he says, well, Mr Loersch came out of the store, knew the accused, the accused wasn't there. Therefore Prosecution says when the accused says he was there, as he said in his interview, he must be lying. And lying deliberately. Lying because of a consciousness of guilt. You just have to be careful with that term, I suggest. The Crown in effect said the lie was deliberate, suggesting it relates to a material issue. That it reveals something because if he had told the truth then it would be revealed or telling he's guilty. But I'm just paraphrasing it." 60 During the lunch adjournment, and before the defence address, the trial Judge raised with counsel the decision of the High Court in Zoneff. 61 The judge directed the jury in relation to lies. The directions were conventional and correct. He told the jury that they had to determine whether what was said by the appellant was a lie and, if it were, ask why it was he told a lie. He said that, for the assertion to be a lie, the jury had to accept the evidence of Mr Loersch that when he came out of the store, having heard the screams, there was no-one at the area of Coles and that certainly the appellant was not there; and they had to accept the evidence of Ms Jolly that she could see nobody. The judge told the jury that if they accepted both of those pieces of evidence they were entitled to conclude that the appellant had been telling lies when he claimed to have been there. He then told them that they had to be satisfied that the lie was deliberate; that it related to a material aspect of the case; that it revealed knowledge of the offence or some aspect of it; and that the lie had been told because the appellant knew that the truth would implicate him in the commission of the offence with which he was charged. 62 The complaint that is made about the direction is twofold. Firstly, it is contended that what the appellant said could not properly be characterised as a lie. The written submission put in support of this should be extracted. It was this: "(The assertion that the appellant had been outside Coles at the time the screaming took place) was an assertion of innocence. It was the defence case. He was not the attacker; he was outside Coles when it occurred. The assertion by the Crown that what he said was a 'lie told in consciousness of guilt' is an assertion that the defence case is a lie. To allow that assertion to be used as part of a circumstantial case against the accused cannot be correct. It conflates the defence with the allegation that it is a lie." 63 I would reject this submission. The assertion made by the appellant was not "the defence case"; it was one part of the defence case. The assertion amounted to a denial that he had been in the place where the offence took place. If that assertion could be shown to be incorrect, then a question would legitimately arise as to whether it was a deliberate lie or was made for some other reason. In my opinion it was open to the Crown to put the statements by the appellant to the jury as lies and the jury were properly directed that it was their function to determine whether what the appellant said as to his whereabouts at what was a critical time was a lie. Thereafter the directions were in conventional and correct terms. 64 The second matter raised in this respect queries whether the evidence did show that what the appellant had said was false – I take this to query whether it was open to the jury to answer the first question posed positively. The argument was that Mr Loersch and Ms Jolly had given evidence of what they did not see rather than positively to assert that the appellant was not present. A distinction was drawn between evidence that the appellant was not present and evidence that he had not been seen in that place at the relevant time. 65 That is a misstatement of the evidence of Mr Loersch which I have extracted above. Mr Loersch's evidence is quite clear that the appellant had not been present. Ms Jolly was less positive, having regard to the terms in which the question was asked of her but, in my opinion, it was open to the jury to take into account that Ms Jolly had not seen the appellant (or anyone else) outside Coles at the time. 66 I would reject this ground of appeal.

the proviso to s6(1) of the Criminal Appeal Act 1912 67 S6(1) of the Criminal Appeal Act 1912 is in the following terms: " 6 Determination of appeals in ordinary cases

(1) The court on any appeal under section 5 (1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred ." (emphasis added) 68 The Crown argued that, even if one or more of the grounds argued is made out, nevertheless this is a suitable case for the operation of the proviso. The circumstances in which it is appropriate to apply the proviso were spelt out by the High Court in Wilde v The Queen (1988) 164 CLR 365. The majority (Brennan, Dawson and Toohey JJ) wrote: "…where there has been a departure from the requirements of a properly conducted trial, it cannot be said that there has been no substantial miscarriage of justice if the applicant has thereby lost 'a chance which was fairly open to him of being acquitted' … or 'a real chance of acquittal' … Unless it can be said that, had there been no blemish in the trial, an appropriately instructed jury, acting reasonably on the evidence properly before them and applying the correct onus and standard of proof, would inevitably have convicted the accused, the conviction must be set aside: … unless that can be said, the accused may have lost a fair chance of acquittal by the failure to afford him the trial to which he was entitled, that is to say, a trial in which the relevant law was correctly explained to the jury and the rules of procedure and evidence were strictly followed: … the loss of such a chance of acquittal cannot be anything but a substantial miscarriage of justice. … It is one thing to apply the proviso to prevent the administration of the criminal law from being 'plunged into outworn technicality' …; it is another to uphold a conviction after a proceeding which is fundamentally flawed, merely because the appeal court is of the opinion that on a proper trial the appellant would inevitably have been convicted. The proviso has no application where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings. If that has occurred, then it can be said, without considering the effect of the irregularity upon the jury's verdict, that the accused has not had a proper trial and that there has been a substantial miscarriage of justice. Errors of that kind may be so radical or fundamental that by their very nature they exclude the application of the proviso: … There is no rigid formula to determine what constitutes such a radical or fundamental error. It may go either to the form of the trial or to the manner in which it was conducted. … But the wording of the proviso is quite general and it is clear that it may be applied notwithstanding a misdirection concerning the law or the wrongful admission of evidence. In the end no mechanical approach can be adopted and each case must be determined upon its own circumstance." (pp 371-373, internal references omitted) 69 Even leaving aside the evidence of flight, the Crown case against the appellant was overwhelmingly strong. A full description of her attacker was given by the complainant, and also by Ms Jolly. Except for one thing, that description matched the appellant neatly. The one exception concerned the description given by the complainant of tattoos on the hands and arms. Photographic evidence showed that the appellant is heavily tattooed on the hands and arms. However, a sketch drawn by the complainant depicting her recollection of the tattoo on the attacker's left arm did not accurately coincide with the tattoo on the appellant's left arm. (For myself, I regard the discrepancy as of little weight, having regard to all of the circumstances.) The clothes worn by the attacker matched the clothes worn by the appellant. He attempted to conceal a plastic bag containing the clothes. He was, even on his own account, immediately before the commission of the offence in the location where the offence took place. He asked the complainant to have sex with him just before the assault. 70 The difficulty in the application of the proviso lies in the evidence, which I consider to have been wrongly admitted, of flight, raising, as it did, the spectre of the appellant's criminal history; that added a further dimension to the trial. It created a dilemma for his legal representatives in deciding whether or not to advise him to give evidence. As it happened, he did not. But without the risk of cross-examination revealing more of his criminal record than that which related to Ms Bruen, the decision may have been different. An accused person acting under that constraint cannot be said to have had a fair (or proper) trial. This is not, in my view, a suitable case for the application of the proviso. 71 I would allow the appeal against conviction, set aside the verdict of guilty, and order a new trial. application for leave to appeal against sentence 72 The conclusions I have reached in relation to conviction make it unnecessary to determine the application for leave to appeal against the sentence. 73 ADAMS J: I agree with Simpson J and have nothing to add.

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