Elmasri v R [2010] NSWCCA 11

New South Wales Court of Criminal Appeal

CITATION: Elmasri v R [2010] NSWCCA 11

HEARING DATE(S): 8 December 2009

JUDGMENT DATE: 24 February 2010

JUDGMENT OF: McClellan CJatCL at 1; Price J at 2; RA Hulme J at 3

DECISION: Appeal dismissed.

CATCHWORDS: CRIMINAL LAW - appeal and new trial - objections or points not raised in court below - misdirection and non-direction - whether certain statements made by accused capable of being construed as evidence of consciousness of guilt - whether trial judge failed to direct jury in relation to consciousness of guilt reasoning

LEGISLATION CITED: Criminal Appeal Rules

CATEGORY: Principal judgment

Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1 Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193 R v Ali [2002] VSCA 194; 135 A Crim R 426 R v Juric [2002] VACA 77; 129 A Crim R 408 R v Nguyen [2001] VSCA 1; 118 A Crim R 479 CASES CITED : R v ON [2009] QCA 62 R v SBB [2007] QCA 173; 175 A Crim R 449 Regina v Smit & Ors [2004] NSWCCA 409 Sanchez v R [2009] NSWCCA 171 The Queen v MC; DPP v MC [2009] VSCA 122 Zoneff v The Queen [2000] HCA 28; (2000) 200 CLR 234

PARTIES: Iad ELMASRI (Applicant) Regina (Respondent)

FILE NUMBER(S): CCA 2007/15169

COUNSEL: S Odgers SC with K Ginges (Applicant) S Dowling (Respondent)

SOLICITORS: Pericaud Zraika Solicitor for Public Prosecutions

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2007/15169

LOWER COURT JUDICIAL OFFICER: Bennett SC DCJ

LOWER COURT DATE OF DECISION: 19 February 2009

IN THE COURT OF CRIMINAL APPEAL 2007/15169

McCLELLAN CJ at CL PRICE J R A HULME J

24 February 2010 Iad ELMASRI v Regina Judgment

1 McCLELLAN CJ at CL: I agree with R A Hulme J. 2 PRICE J: I agree with R A Hulme J. 3 R A HULME J: The appellant was found guilty by a jury on 27 October 2008 of one count of robbery whilst armed. His Honour Judge Bennett SC imposed a sentence of imprisonment for 5 years with a non-parole period of 2 years 6 months.

4 The appeal is concerned only with the conviction. Two grounds are relied upon. In essence they assert a failure by the trial judge to give directions (that he was not asked to give) in relation to certain things said by the appellant to investigating police officers prior to his arrest. It is contended that the jury should have been directed in accordance with Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193 about the care with which they should approach the issue of consciousness of guilt reasoning.

The evidence at trial

5 There was no dispute that a security guard was robbed as he left a McDonalds restaurant at Enfield with the takings of approximately $28,000 shortly before 11.00am on 9 October 2006. The appellant was employed at this store as a manager. He was rostered to work on the day of the robbery with his shift commencing at 11.30am.

6 The day of the robbery was the first occasion the guard had attended this store. He was not wearing a uniform and there were no markings on his red utility that indicated his occupation. He took possession of the takings, left the store and returned to his utility. A motor cycle arrived quickly and stopped behind the utility. A male pillion passenger alighted. This man approached the driver's door and pointed a gun directly at the guard and demanded the takings. The guard complied. The man returned to the motor cycle which was ridden quickly away. The guard re-entered the store and contact was made with his employer and with the police.

7 The robber was later identified as Mr Abdul Baghdadi. He was arrested on 12 October 2006.

8 There was no dispute at the appellant's trial that Baghdadi had received directions by telephone from Mr Said Yatim as to the identity of the security guard and the description of his vehicle. Yatim was the father of a part time employee at the store. There was no suggestion that he knew who the security guard was at any time prior to the robbery. Rather, it was not disputed that he had received that information from somebody else some time after the guard had arrived at the store and before the robbery, and that he relayed this information to Baghdadi. Yatim was arrested on 29 November 2006. At a later stage he agreed to give evidence against the appellant.

9 The Crown case was that it was the appellant who had passed the information concerning the identity of the security guard and his vehicle to Yatim in order for him to relay it to the robber. A significant issue at the trial was whether the appellant was in the company of Yatim in the vicinity of the store at the time of the robbery. Yatim said that he was and that he was the source of the information that had been relayed to Baghdadi.

10 The Crown did not rely exclusively upon the evidence of Yatim. Indeed, the Crown Prosecutor sought to make a case largely based upon inferences arising from other evidence, describing the prosecution case as circumstantial and referring to Yatim's evidence as confirming the conclusions that could otherwise be drawn. It would seem that the Crown Prosecutor was conscious of the possibility that the jury may be doubtful about Yatim's credibility. The other evidence included the product of telephone intercepts. Baghdadi's telephone was being intercepted in the course of an unrelated investigation. There was also CCTV footage from the store that assisted in fixing the times that certain events occurred. There was some inaccuracy in the times recorded in the telephone intercept and CCTV material but there was evidence which permitted corrections to be made. Counsel for the appellant submitted to the jury that they should be doubtful about the accuracy of the times but the jury obviously accepted the correctness of the times of at least the material events. Where I refer below to times it is with recourse to the corrected time.

11 Yatim gave evidence to the effect that he was desperate for money because of pressure being placed upon him by Baghdadi to repay $1,000. He told the appellant about this and offered to sell the appellant his car. The appellant responded by offering him "a job". He related how security officers attended the McDonalds store each Monday and Thursday to collect the takings and suggested that Yatim could commit a robbery. Yatim responded that he was too afraid to do such a thing. Later, Yatim was contacted by Baghdadi who made a further demand for repayment of the debt. Yatim told him of the McDonalds robbery proposal. Baghdadi expressed interest. Yatim told him that the plan originated with a manager.

12 The following day Yatim spoke again with the appellant. He asked how the security guards could be identified and the appellant said that he would point them out to him. Yatim told him that he was not going to do the job himself but some younger men or boys would do it.

13 On the day of the robbery both Yatim and Baghdadi went separately to the store. Yatim inquired of staff as to the whereabouts of the appellant and was told that he had not yet arrived. Yatim waited in his car. A number of telephone conversations with Baghdadi ensued in which there was reference to Yatim waiting for the arrival of his "man".

14 Yatim said that he eventually observed the appellant smoking a cigarette outside the store and he approached and spoke to him. He asked the appellant what was happening. The appellant told him that there was a sole security guard, he was a new one, and that he was inside obtaining the takings. Yatim also claimed that the appellant also said, "This is the car he drives, it's a red ute". Defence counsel invited the jury to consider how the appellant could have known this, given that he arrived after the guard had entered the store. In any event, Yatim said that he then suggested that the appellant come with him to stand next to Yatim's car to make it appear as if they were having a look at it. Later in his evidence, he claimed that it was the appellant who had suggested they go and talk near Yatim's car because there was a security camera near the entrance to the store.

15 Yatim said that there was a telephone conversation with Baghdadi in which he told Baghdadi that his "man" was standing right next to him and would tell him when the guard emerged from the store. Yatim claimed that he was still on the phone talking to Baghdadi when the appellant indicated to him that the guard was leaving the store. Yatim relayed this to Baghdadi. He then gave evidence of observing Baghdadi commit the robbery. After the motor cycle was ridden away the appellant said, "Come, let's go around the block in the car, if they ask us we will say we were trying the car".

16 Yatim's evidence was that Baghdadi reneged on an understanding that the proceeds of the robbery would be shared. He claimed that he received nothing. A week later he spoke with the appellant who told him, "I don't want anything but let no-one talk and mention my name".

17 Yatim's evidence was disputed and heavily criticised by counsel for the appellant. He agreed that he had a previous conviction for fraud. He also agreed that he had received a discount on his sentence and that the sentencing judge had told him that the discount could be removed if he changed his mind about giving evidence for the prosecution. He denied a proposition that he was lying about the involvement of the appellant in the robbery.

18 The evidence independent of Yatim was to the following effect. The security guard arrived at the store at 10.40.37. He parked his red utility near the entrance and walked inside. He returned almost immediately to the utility to retrieve his identification. He re-entered the store at 10.41.00. The appellant arrived and entered the store at 10.43.17. At this time the guard was in the office of the store. The appellant conceded in his evidence that he saw this person in the office and realised that he must have been the security guard because nobody else would have any business being in the office at that time. The appellant left the store at 10.46.00 and commenced to smoke a cigarette immediately outside. He said that Yatim approached him at this point and a very short time later the two went over to where Yatim's car was parked. The appellant claimed that this was for the purpose of him having a look at the car in order to decide whether he was interested in buying it.

19 An intercepted telephone conversation between Yatim and Baghdadi which commenced at 10.47.59 included Yatim saying, "this car over there, the red one ... yes, a ute, listen ... a red car, a ute, an old man alone, carrying the bag". The guard left the restaurant at 10.48.26. At 10.48.27 Yatim rang Baghdadi and said, in part, "Hurry up ... he is out, the man is out! Is that him? Is that him?" The translator from Arabic to English of the intercepted telephone calls gave evidence that the words "Is that him? Is that him?" were spoken by Yatim. Yatim gave evidence that he had directed this repeated question to the appellant who was standing nearby.

20 Baghdadi was then recorded as saying, "Go, go, go, go" which was followed by the sound of a motor cycle engine revving. Baghdadi then asked Yatim where "he" was and Yatim replied, "Here he is in the red ute, here he is, he is standing in the shop's door". Baghdadi was recorded then giving directions, apparently to the motor cycle rider, to pull up next to the utility.

21 The security guard made a telephone call to his employer to report the robbery at 10.50.00. At 10.50.16 he walked back into the store. At 10.54.34 the store manager called the security company office. At 11.00.07 the manager made a call to triple 0. Police officers arrived at the store at 11.08.45.

22 The evidence I have summarised thus far was sufficient for the jury to conclude that the robbery occurred at around 10.49 am. It was also sufficient for the jury to conclude that Yatim relayed to Baghdadi information he received from somebody at around that time in order that the robbery of the guard could be committed. It was a matter for the jury whether they accepted the evidence of Yatim that this somebody was the appellant. The appellant's evidence in conjunction with the corrected times of the events I have referred to strongly supported the proposition that the appellant was in the company of Yatim at the time of the robbery. Indeed, that conclusion was available even if Yatim's evidence was disregarded.

23 I have mentioned that Baghdadi was arrested on 12 October 2006 and Yatim was arrested on 29 November 2006. On 18 December 2006 police attended the Enfield McDonalds in order to retrieve some CCTV material and whilst they were there they spoke with the appellant. According to the police officers the following conversation ensued: Det Bourke: We're still investigating the robbery, are you aware that a number of people have been arrested for the robbery? Appellant: Yeah, one of the staff member's fathers was arrested. [I interpolate that this was clearly a reference to Yatim]

Det Bourke: Yeah that's right, do you know him? Appellant: Yeah I've met him, I know him just to say hello to.

Det Mooney: What time did you work on the day of the robbery? Appellant: I was rostered to start at 11.30 but I got here about 11 or quarter past 11 .

Det Mooney: So did you arrive after the robbery? Appellant: Yeah.

Det Bourke: When was the last time you saw Fatima's father? [Again, a reference to Yatim] Appellant: On the day.

Det Bourke: What day? Appellant: The day that it happened, he wanted to sell me a car.

Det Mooney: What happened? Appellant: I got to work and was having a smoke outside with a staff member when he asked me whether I wanted to buy a car.

Det Mooney: Was this before or after the robbery? Appellant: I got here after it happened . (Emphasis added).

24 The appellant described sitting at the first table outside the store when he was having his cigarette. He said there was no-one with Yatim when they went to have a look at the car. He indicated where Yatim's car had been parked a short distance away from the store. After some further conversation there was this: Det Bourke: Have you seen him since then? Appellant: No

Det Bourke: Do you know his name? Appellant: No I don't even know his phone number. I've never spoken with him on the phone before . (Emphasis added).

25 The detectives' evidence was that no contemporaneous record was made of this conversation but that Detective Bourke recorded it in his official notebook some 45 minutes later after having viewed CCTV footage which indicated that the appellant had in fact arrived at the store before the robbery.

26 On 20 December 2006 the appellant voluntarily attended a police station where an electronically recorded interview took place. The detectives first sought to have the appellant adopt the record of the conversation that took place two days earlier. He agreed with the record of the conversation up until the point where the police claimed that he had said, "I got here after it happened". He claimed that he had said that he arrived before the robbery. He agreed with the record of the conversation that then followed up until the point where the police claimed that he had said that he had not seen Yatim since the robbery. He asserted that he had told them that he saw him a week or a couple of weeks after. He agreed with the accuracy of the record in respect of the very next question and answer as to not having spoken with Yatim on the telephone. He did not at that point (like he did at the trial) raise any issue about a question asked by the police that they had omitted in the record.

27 The appellant then provided his version of what he did on the day of the robbery. He said that after having arrived at the store he went inside, said hello to some staff members and put his keys and phone away in the office. Whilst he was there he noticed the presence of the security guard. He then went outside, sat down and had a cigarette. He was approached by Yatim. He did not know his name, only that he was the father of one of the members of staff. (At a later point in the interview he said that he knew the staff member's surname was Yatim). Yatim asked if he was still interested in buying Yatim's car. He had first been approached by Yatim one or two weeks earlier and asked if he was interested in buying the car. He replied that he was but could not look at it at that time because he was in the process of closing the store. On this occasion, however, he agreed to go and have a look at it. They went to the car and took it for a drive around the block. When they returned he heard from the store manager that there had been a robbery. He did not buy the car because he said Yatim was asking too much for it.

28 The appellant agreed that the location where Yatim's car had been parked afforded a clear view of the entrance to the store. He also said that he was aware that security guards pick up the takings on Mondays and Thursdays.

29 The appellant said that he had smoked "pretty much all of" his cigarette before Yatim approached him outside the store. He then spent "a good 5 minutes" looking at the car before getting into it. He said that Yatim was standing nearby, maybe two metres away, while he was inspecting the engine, the interior and the exterior of the car. He was unaware of Yatim using a mobile phone in this time. He said the test drive took around 10 minutes. At no time did he see Yatim with anyone else. There was no-one in the vicinity of the car when they walked over to it.

30 The appellant was shown the CCTV footage from the store. He identified himself leaving the store and estimated that this was "a couple of minutes" before the security guard walked out of the store. He denied that he had given information to Yatim about the security guard.

31 During the course of the interview the appellant drew a sketch and made marks on some photographs. In doing so he indicated that the table where he claimed he was smoking a cigarette was directly outside the entrance to the store and that the car space occupied by the security guard's utility was 3 or 4 car spaces away.

32 At the conclusion of the interview the appellant was released without charge. He was arrested on 11 April 2007. There was a further electronically recorded interview. He said that what he had said in the interview of 20 December 2006 was "pretty much" correct. He added, "Like, yeah, like things I could have said could be wrong and right but ... It was a while back ... So I can't say whether it's all 100 per cent". He said that he did not want to add or withdraw anything that he had said in the previous interview and did not wish to be further interviewed.

33 The appellant gave evidence. He clarified that in the interview of 20 December 2006 he had made a correction as to when he arrived at the store in relation to the robbery. This was because at first he had told the police when he had arrived at the store after the drive in Mr Yatim's car. He had later realised that the police were talking about when he had first arrived at the store.

34 He told the police that he had smoked "pretty much all" of his cigarette after walking out of the store and before being approached by Mr Yatim and by that he meant that it had taken four to five minutes. Later he said that it would have been "a good 3 minutes, 4 minutes" before Yatim came up to him. He spoke to Yatim for "not even a minute" whilst at that location. They walked over to Yatim's car. He spent "a good 5 minutes" looking at the car. The test drive took "approximately 10 (minutes), it could be less". He arrived back at the store before the arrival of the police.

35 The appellant denied various critical components of the evidence given by Yatim. He said he was not aware of Yatim using a phone at any stage, although in cross-examination he accepted that he might have been with him in the vicinity of Yatim's car at the time of the calls to Baghdadi. He confirmed that his conversation with Yatim on the day of the robbery was in connection with Yatim trying to sell his car. There was no-one else present when he was with Yatim at Yatim's car. He was unaware of a robbery occurring until he walked back into the store after the drive in Yatim's car and was told about it by one of the staff. The staff member with whom he said he had been sitting having his cigarette outside the store had given evidence of hearing the squeal of brakes and seeing a motorcycle near the entrance to the store but the appellant did not hear or see these things.

36 In relation to that part of the conversation with the police on 18 December 2006 when the appellant had said, "No I don't even know his phone number. I've never spoken with him on the phone before", the appellant said in cross examination that there was a question asked by police that they had omitted from their evidence that had prompted that response. He claimed that he had been asked, "Have you had any other contact with Mr Yatim by phone or any other way apart from him dropping his daughter off?".

37 There was evidence before the jury that the appellant had no previous criminal convictions. He called a witness who attested to his good character. Some of the prosecution witnesses had said similar things when cross-examined by the appellant's counsel.

Grounds of appeal

38 Two grounds of appeal were set out in the notice of appeal: Ground 1 The trial judge erred in his directions regarding the alleged lie of the appellant on 18 December 2006 as to when he first arrived at the McDonalds on 9 October 2006

Ground 2 The trial judge erred in his directions regarding the appellant's alleged unprompted denial on 18 December 2006 of any telephone contact with Said Yatim

39 The first ground of appeal was abandoned after the appellant's representatives received the Crown's written submissions, it being conceded that the submissions were, in respect of that ground, "for the most part, persuasive". It was at that stage that a third ground was added with leave that was granted at the hearing of the appeal. Ground 3 The trial judge erred in his directions regarding the statement of the appellant to the police on 20 December 2006 that he arrived at work before the robbery and spoke to "Fatima's father" about a car

Ground 2 – Directions concerning "the unprompted denial"

40 This ground is concerned with the evidence of an aspect of the conversation between police officers and the appellant on 18 December 2006 concerning his relationship with Yatim. It is set out earlier but for convenience repeated: Det Bourke: Have you seen him since then? Appellant: No

Det Bourke: Do you know his name? Appellant: No I don't even know his phone number. I've never spoken with him on the phone before . (Emphasis added).

41 I also mentioned earlier that the appellant gave evidence to the effect that the police had asked a question that prompted this response – "Have you had any other contact with Mr Yatim by phone or any other way apart from him dropping his daughter off?"

42 The Crown Prosecutor cross-examined the appellant about this response. It was suggested to him that he was trying to make clear that he had never had any telephone contact with Yatim; that he was very careful not to have any telephone contact with him because he was involved in the planning of a robbery with him; that he wanted to stress to the police that he had not had telephone contact for that reason; and that it was an "odd response". The appellant disagreed with each of these propositions.

43 In his closing address the prosecutor described the Crown case as being a circumstantial one (despite the direct evidence of Yatim). He then made submissions concerning each of the "circumstances". In the course of this he referred to the part of the conversation with the police of 18 December 2006 in which the appellant had told the officers that he had arrived after the robbery. He submitted to the jury that this was a lie which was relevant to the appellant's knowledge that he had committed the crime and argued that it was one of the "circumstances".

44 After completing his review of that part of the 18 December 2006 conversation with the police the prosecutor then said: Also in this conversation you get the reference, "Do you know his name?" asked the police officer, the accused says, "No". But then he says something else, "I don't even know his phone number, I've never spoken with him on the phone". The prosecution says that is a very odd response for him to provide on this occasion to a question, "Do you know his name?" He's somebody at that point in time who was trying to provide to the police a suggestion that well, he doesn't have telephone contact with this man, in other words, he said too much at that point in time. (T21.10.09 at 13.15).

45 The prosecutor then continued, "Ladies and gentlemen, the other circumstance the prosecution would ask you to take into account is ...", and he then discussed the evidence of the telephone intercept in which Yatim had said, allegedly to somebody in his immediate presence, "Is that him, is that him?"

46 Whilst this ground is phrased in terms of an error in directions, the real complaint is one of an absence of a direction. It was articulated in written submissions as being that "the trial judge failed to give a proper direction to the jury as to how they should approach the evidence in the event that they were satisfied of the accuracy of the police version of what was said". The judge had referred to the evidence in the course of his summing up when dealing with disputed police evidence. In that context he had referred to the Crown contention that the appellant "might have been attempting to distance himself from Yatim" and "was perhaps rather too ready to offer information which would support that proposition". It was submitted, however, that the trial judge should have given directions about the "care" which the jury should exercise before using the evidence against the appellant.

47 It was submitted on behalf of the appellant that the Crown had relied upon this response as part of the circumstantial case against him. It was acknowledged that the Crown was not relying upon it as a lie told out of consciousness of guilt. Indeed, the Crown did not suggest that it was a lie. The Crown accepted that there had been no telephone contact between the appellant and Yatim. It was submitted that "there was every risk that the jury would use the evidence as part of the case against the appellant without proper directions as to the care with which they should approach the evidence". It was contended that the jury would have understood that the Crown relied upon the evidence to support an inference of consciousness of guilt and that an Edwards type direction should have been given (see Edwards v The Queen (supra). Alternatively it was submitted, with reliance upon Edwards and Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1, that even if the Crown was not relying upon this evidence to support an inference of consciousness of guilt, such reasoning may have been adopted by the jury in any event and so it was incumbent upon the trial judge to give an Edwards direction.

48 Mr Odgers SC, counsel for the appellant in this court but not at trial, amplified this submission by contending that the jury should have been told that they should consider alternative explanations for the appellant's "unprompted denial". He suggested by way of example that it was not odd for the appellant to have said what he said when he was speaking with the police about discussions that he claimed that he had with Yatim about the possible purchase of his car. Another suggestion was that the appellant was an innocent man trying to distance himself from a man he thought was guilty.

49 It was submitted that the "complete absence of directions to the jury about the way in which they should approach this evidence created a real danger of a miscarriage of justice" because the jury might have used it to "remove doubts that arose from the evidence of Yatim and the inability of the Crown to prove beyond reasonable doubt (absent reliance on this evidence) that the appellant was with Yatim at the time of the robbery".

50 No objection concerning the absence of a direction was made by experienced counsel who appeared at the trial and so Rule 4 Criminal Appeal Rules applies. Enough has been said, and frequently, in recent years about the approach that should be taken in respect of Rule 4 that there is no need for me to review the jurisprudence in any detail. A useful collection of relevant authority can be found in the recent judgment of Campbell JA in Sanchez v R [2009] NSWCCA 171 at [59] – [62].

51 For the Crown it was submitted that the Crown Prosecutor at trial had relied upon the appellant's unprompted denial for credibility purposes only. The reference to the topic in the Crown Prosecutor's closing address (see [44] above) was simply a digression made by the prosecutor during the course of dealing with the circumstances upon which the Crown's circumstantial evidence case was based. The prosecutor had just made submissions to the jury about the lie it alleged the appellant told in the conversation with the police on 18 December 2006 about when he arrived at the McDonalds store in relation to the robbery. After dealing with that part of the conversation he digressed to mention another aspect of it. It was referred to again later in the prosecutor's closing address but at that stage in the course of a lengthy critique of the appellant's credibility. In that context, the prosecutor pointed out that whilst the appellant had corrected the police in the recorded interview of 20 December 2006 about another matter when they were seeking to have him adopt their notebook record of the conversation two days earlier, he had said nothing about a failure by the police to record a question they had asked which had prompted his denial of having had telephone contact with Yatim.

52 It was submitted that there was a contrast between the prosecutor's treatment of the alleged lie concerning the time he arrived at the McDonalds store and his treatment of the unprompted denial which, at its highest, was referred to as a "very odd response".

53 On behalf of the appellant in reply it was accepted that in the latter part of the prosecutor's closing address he had been addressing the topic of the appellant's credibility. It was submitted that he was contending that the appellant's attempt to explain the unprompted denial was not credible and that the police officers' evidence should be accepted. Thus, it was submitted, the prosecutor was contending that the appellant had said something on 18 December 2006 that he needed to "explain away" because it was inculpatory. It was contended that the prosecutor had suggested how it was inculpatory in the earlier part of his closing address when he was dealing with the circumstances in the Crown's circumstantial evidence case.

Consideration

54 I am not satisfied that the Crown was relying upon the "unprompted denial" as part of its circumstantial case against the appellant. Reading what the prosecutor said in his closing address in context leaves me with the distinct impression that he was simply digressing during the course of making submissions about the circumstances upon which the Crown relied, finding it convenient to mention the "unprompted denial" at a point when he had just referred to another aspect of the conversation of 18 December 2006. The trial judge appears to have understood the prosecutor in this way as well. When he referred to the list of circumstances relied upon by the Crown in its circumstantial evidence case he made no reference to this topic.

55 The Crown Prosecutor, in stark contrast to the explicit submission he made about the before/after lie, did not suggest to the jury that the "unprompted denial" arose from a consciousness of guilt. He did not say so in direct terms and nor did he imply it. It is of considerable significance that defence counsel did not see it that way either. She meticulously addressed the various points raised in the prosecutor's closing address but she did not, apparently, perceive any risk that what he had said about the "unprompted denial" would give rise to consciousness of guilt reasoning.

56 I am also satisfied that what the trial judge said did not, on its own or in addition to what the prosecutor had said, suggest that the "unprompted denial" could give rise to consciousness of guilt reasoning. He specifically told the jury that the lie in relation to when the appellant arrived on the scene could be used for that purpose, subject to the cautionary directions he gave, but the fact that he did not refer to the "unprompted denial" as being open to the same type of reasoning further served to confine any consciousness of guilt reasoning to the lie.

57 In response to a request by the Crown Prosecutor, the trial judge reinforced to the jury that the only "out of court representation" by the appellant that was relied upon by the Crown as a lie was the before/after lie.

58 As to the submission that the trial judge should have counselled the jury to consider alternative explanations for why the appellant made the "unprompted denial" it is again of significance that trial counsel was obviously not concerned to suggest anything of this nature. Her sole submission to the jury was that they should accept the appellant's evidence that the police had asked a question which prompted his denial.

59 There remains the question of whether the jury of its own may have adopted consciousness of guilt reasoning despite no suggestion of it having been raised by either the prosecutor or the judge or perceived by the appellant's counsel. Once again I am not satisfied that there was a risk of this. The evidence of the "unprompted denial" was such a peripheral part of the evidence in the prosecution case that it is very doubtful that the jury gave it much, if any, attention at all. As an illustration of how minor the point was, what the prosecutor said about it in his closing address occupies eight lines of the transcript whereas the entire address occupies something in the order of one thousand seven hundred lines of transcript.

60 Further, the line of reasoning that the appellant contends the jury may have engaged in would involve the drawing of an inference. The trial judge gave the jury a customary and adequate warning, about which no complaint is made, about the care with which they should approach the task of drawing inferences. He reiterated this direction a number of times and at one point he went so far as to say that the jury could only draw inferences adverse to the accused and in favour of the Crown: (W)hen the inference can be drawn beyond reasonable doubt. That also involves of course the proposition that if there is any rational hypothesis or reasonable hypothesis consistent with innocence then the accused should have the benefit of the doubt created by that inference. (SU 23.10.08 at 65).

61 Later, in response to a jury question after they had retired, the judge reiterated his directions in relation to the drawing of inferences, including repetition about the caution required. He referred to the Crown case being based upon circumstantial evidence, fleshed out by the evidence of Yatim, and in the course of this he also made specific reference to the before/after lie. Again, he said nothing about the "unprompted denial" as a circumstance upon which the Crown relied.

62 This case at trial concerned many other aspects of the evidence which were of moment. The "unprompted denial" was a very minor and peripheral point. It would be completely unrealistic to elevate it to a matter of such importance that despite experienced defence counsel not perceiving it as a matter of the same substance for which it is now contended it had, and in the absence of directions for which appellate counsel now contends should have been given, there has been a miscarriage of justice. Leave to rely upon Ground 2 should be refused.

Ground 3 – Directions concerning the appellant arriving before the robbery and speaking to Yatim about a car

63 The essence of this ground is also a failure to direct rather than an error in directions. It is concerned with the following portion of the interview between the police officers and the appellant on 20 December 2006. The context in which it appears is that the officers were taking the appellant through their notes of the conversation they had with the appellant two days earlier, seeking to have him adopt the accuracy of that record. Q37 Do you agree that you said, "Yeah, one of the staff member's father was arrested"? A Yeah

Q38 Do you agree Detective Mooney said, "Yeah, that's right. Do you know him?" A Yeah

Q 39 Do you agree that you've then said, "Yeah, I've met him. I know him just to say hello to?" A Yeah

Q40 Do you agree that Detective Mooney then said, "What time did you work on the day of the robbery?" and you said, "I was rostered to start at 11.30 but I got here about 11.00 or a quarter past 11.00"? A Yeah

Q41 Do you agree Detective Mooney then said, "So, did you arrive after the robbery?" A Yeah

Q42 And do you agree you then said, "Yeah"? A Yeah, I said it, yeah.

Q43 Yeah. A Right.

Q44 Do you agree I then said, "When was the last time you saw Fatima's father?" A Yeah.

Q45 And you then said, do you agree you then said to me, "On the day"? A Yeah

Q46 Do you agree I then said, "What day?" A Yeah

Q47 And do you agree you said, "The day that it happened. He wanted to sell me a car."? A Yeah

Q48 Do you agree Detective Mooney said, "What happened?" A Yeah

Q49 And do you agree you replied, "I got to work and was having a smoke outside with a staff member ..."? A Yeah

Q50 "... when he asked me whether I wanted to buy a car"? A Yeah.

Q51 Do you agree Detective Mooney said, "Was this before or after the robbery?" A Yeah

Q52 Do you agree you said, "I got here after it happened "? A Yeah. Before it happened .

Q53 Sorry, I got here, I'll go back to that last one . A Mmm

Q54 Detective Mooney, do you agree Detective Mooney said, "Was this before or after the robbery ?" A Before. I said ...

Q55 You said, "Before "? A Yeah (Punctuation and emphasis added).

64 The police evidence was that two days earlier the appellant had told them that he had arrived after the robbery. The Crown relied upon that statement as a lie arising from a consciousness of guilt. The prosecutor dealt with the above passage from the recorded interview in the course of his closing address to the jury. The relevant passage of his address (extracted below) appears in the middle of a section in which the prosecutor was anticipating arguments that might be raised by defence counsel and was posing contrary arguments. He referred to the interviews on 18 and 20 December 2006 and anticipated an argument that the appellant was simply answering questions in a casual fashion without thinking that he was a suspect. It seems that the prosecutor anticipated that this might be a submission that would be made to explain the lie told at the first interview about arriving after the robbery. He endeavoured to counter such a submission by pointing out matters such as the formality of the interview and the fact that the appellant was informed of his rights. It was in this context that the following was said: What has occurred is an attempt to play down his level of seriousness at this point in time. In my submission, that's something that you just would reject. You see isn't it the case that his admissions to police, his conversation to police actually show some changes, particularly in regard to when it is he said that he arrived. Changing it in the interview to before the robbery, in circumstances where he had to correct what he'd said to the police earlier on. You see, this is not the situation of an accused going along and just casually saying stuff to the police. What it was, was he was answering the police officer's questions. They were close questioning and he did so in circumstances where you would accept that he was somebody that you would expect would be trying to provide accurate information. In my submission what he effectively did at this time, in reality was to try and provide an alibi for Mr Yatim and in doing so, what he did was he inadvertently disclosed his own involvement in the offence . (Emphasis added). (T23.45 on 21.10.08).

65 The prosecutor then proceeded to deal with other anticipated defence arguments on unrelated topics.

66 In oral submissions Mr Odgers added reference to an earlier portion of the prosecutor's closing address. The prosecutor was submitting that even on the assessment of times given by the appellant in his evidence he would have been in the presence of Yatim at the time of the robbery. In this context he said: This is not a case, I suggest to you, ladies and gentlemen, that really is about time; what it is about is that this accused went on this day, spoke to the police on 20 December, what he did was to provide what he may thought was an alibi for Mr Yatim, but which in fact turned out to be something that implicated him in the crime, because he was somebody who knew he was with Mr Yatim at the time the crime was being committed. (T21.10.09 at 10.30).

67 Counsel for the appellant also drew attention to the two emphasised passages in the following extract from the cross-examination of the appellant: Q. Was it the case sir that when you were speaking to the police officers in the interview you had had some time to think about the fact that Mr Yatim had been arrested and apparently charged by police in relation to the robbery, you agree with that? A. Yeah, I knew he was charged with the robbery yeah.

Q. And is it the case sir that you were somebody who wanted to provide an alibi for Mr Yatim ? A. No.

Q. And was that part of an agreement that you had with Mr Yatim around about the time of the robbery ... A. No it wasn't.

Q. ... that you two would account for each others movements ... A. No it wasn't.

Q. ... by saying that you had been with each other? A. No.

Q. Could that be the case, sir? A. No it isn't the case.

Q. And could it be the situation that what you didn't bring into your mind was the fact that the police were lawfully recording the phone calls that were coming across to this man, Mr Baghdadi? A. No, no, no that's not right.

Q. And that created a problem for you, didn't it sir? A. No it didn't because i – like I said.

Q. Because you didn't have any involvement on the phone with Mr Yatim? A. I didn't have any involvement with Mr Yatim whatsoever apart from the car, from me looking at his car to buy it.

Q. Is that why during the interview you went and told the police that you arrived before the robbery because at that stage you had realised that you needed to provide an alibi for Mr Yatim ? A. No. (Emphasis added). (T1080.41 – 1081.29).

68 Mr Odgers characterised the trial prosecutor's argument as being that the appellant told the police on 20 December 2006 that he arrived before the robbery in an attempt to persuade them that Yatim was not involved in the robbery, the appellant being unaware that the police were in possession of telephone intercept material that established that Yatim was in fact involved. Thus it was submitted that the Crown had been relying upon the appellant "providing an alibi for Yatim" as evidence of consciousness of guilt. The essence of this ground of appeal is encapsulated in the submission that "the trial judge gave no directions at all to the jury as to how they should approach such a process of reasoning, that is, inferring consciousness of guilt from an admission by the appellant that he was present at work prior to the robbery and spoke to Yatim at some time thereafter". It was submitted that the Crown was contending "that the jury should infer that the appellant attempted to help Mr Yatim because he 'needed' to do so in order to protect himself, so that the jury should have been directed they needed to be satisfied of this before they used the alleged lie as evidence of the appellant's guilt".

69 Mr Odgers submitted that the direction the trial judge should have given to the jury should have included reference to the possibility that there could be an innocent explanation for the appellant "providing an alibi for Mr Yatim". One, consistent with the defence case, was that the appellant arrived at the McDonalds store before the robbery but did not have any contact with Yatim until immediately after the robbery. Another was that the appellant believed Yatim to be innocent, notwithstanding that he had been charged by the police, and the appellant was trying to assist in establishing his innocence.

Consideration

70 The Crown Prosecutor did not submit to the jury that they should use this evidence as establishing a consciousness of guilt. Defence counsel in her address dealt with what the Crown Prosecutor had said in his address but it is not apparent that she perceived the issue as being one of consciousness of guilt. She simply submitted to the jury that the idea of the appellant providing an alibi for Yatim did not make sense. The trial judge did not direct the jury that it was a matter that could be used as establishing a consciousness of guilt. Defence counsel did not ask for any direction on the subject.

71 In any event, the Crown Prosecutor's contention had no merit. What the appellant was doing in the interview of 20 December 2006 was simply correcting something that the police claimed that he had said two days earlier. He was saying that he arrived before the robbery. That was the fact. It was established by the CCTV footage. It was common ground at the trial. So too was it an undisputed fact that Yatim was present at the scene prior to, during, and immediately after the robbery. The appellant's statement to the police that he (the appellant) arrived before the robbery did nothing to provide an "alibi" for Yatim.

72 In supplementary written submissions Mr Odgers provided the terms of a direction that he submitted the trial judge should have given. It includes: In relation to the alleged false alibi for Yatim, you must be satisfied that the accused was suggesting that he was with Mr Yatim at the time of the robbery.

73 The suggested direction then continues with reference to the need for the jury to be satisfied that the conduct upon which the Crown relied occurred and also that the accused engaged in that conduct because of a realisation of his guilt. It continues with a direction that the jury should consider the possibility of other explanations for the conduct other than realisation of guilt, such as that the appellant was trying to help Yatim because he believed that he was innocent.

74 There are two obvious problems with this suggested direction. No-one, including the trial prosecutor, suggested that by the appellant telling the police that he arrived at the store before the robbery he was suggesting that he was with Yatim at the time of the robbery. Further, at no stage did the appellant say that he believed that Yatim was innocent of the robbery and so it would have been quite inappropriate for the trial judge to suggest that this was an alternative explanation.

75 The statement of this ground of appeal includes reference to the appellant speaking to "Fatima's father" about a car. That is not only what the appellant told the police but it is also what he said in the course of his evidence. Indeed, the factual basis of his case at trial was in all material respects the same as the version he advanced in the police interview. I am not persuaded that what he said in the interview, and in his evidence, could be characterised as providing an alibi for Yatim. The defence case did not seek to establish that Yatim was not involved in the robbery because he had an alibi. His case was that Yatim approached him and discussed the possible sale of his car immediately after whatever Yatim had done in relation to the robbery.

76 The fundamental premise of this ground is that the jury might have concluded that the trial prosecutor was correct in characterising the appellant's claim in the interview of 20 December 2006 that he arrived before the robbery as an attempt to provide an alibi for Yatim and from that conclusion they may have use it as evidence giving rise to an inference of guilt. I am not persuaded that there is any possibility that the jury could have concluded that the appellant was attempting to provide an alibi for Yatim. Like the subject matter of ground 2, this point was minor and peripheral in the context of all of the other evidence in the trial. Many other matters received far greater attention in the evidence, the addresses and the summing up. It is doubtful, in my view, that the jury would have given this evidence any attention at all beyond confirming that what the appellant had originally said about arriving after the robbery was a lie.

77 Leave to rely upon Ground 3 should be refused

Other authorities relied upon by the appellant

78 Before departing the matter it is appropriate to refer to some further authorities relied upon by counsel for the appellant. Mr Odgers sought to liken what occurred in this trial to situations that have arisen in other cases in which it has been held that the trial judge should have directed the jury in relation to consciousness of guilt reasoning and that as a result there had been a miscarriage of justice. Each of these cases are distinguishable for the reasons I will indicate.

79 In Regina v Smit & Ors [2004] NSWCCA 409 a witness gave evidence that one of the accused had approached him and asked him to provide her with a false alibi. The prosecutor's closing address posed the questions "Why would she ask him that?" and "Is it that she is trying to distance herself from this scene?". The trial judge summarised the various matters relied upon by the Crown, one of them being, "(E)vidence from Mr Ranse that she sought to set up with him a false story of staying at his place". Whilst the term "consciousness of guilt" was not used, it was held that what had been said conveyed an invitation to the jury to use the evidence in that way. As a result it was held: It was incumbent upon his Honour to give a full direction as to how the jury could use this evidence to inculpate Ms Tarrant along the lines analogous to that which is required when a prosecution relies upon the telling of lies as evidencing such a consciousness: Edwards v The Queen (1993) 178 CLR 193.

80 In that case the prosecutor's argument clearly raised an issue of consciousness of guilt reasoning arising from the evidence that the accused had sought to create a false alibi. In the present case nothing said by the prosecutor or the judge raised such an issue in relation to either the subject matters of grounds 2 and 3 and I am satisfied that there was nothing inherent in the evidence that gave rise to the possibility of the jury adopting such reasoning.

81 The Queen v MC; DPP v MC [2009] VSCA 122 concerned an appeal against conviction for sexual assault offences. The prosecution alleged that whilst at a bar the complainant's drink had been spiked and that the applicant had subsequently taken advantage of her drug affected state by having sexual intercourse with her without her consent. The prosecutor submitted to the jury that the applicant and a witness had concocted evidence that the applicant and the complainant had been involved in passionate kissing. It was also submitted that the applicant had told lies in relation to other matters in a police interview. The prosecutor did not use the term "consciousness of guilt". The prosecutor submitted to the jury that the asserted lies told in the police interview went only to his credit. The trial judge did not give any direction in accordance with either Edwards v The Queen or Zoneff v The Queen [2000] HCA 28; (2000) 200 CLR 234. It was held (at [42]) that the alleged concoction was being put as a consciousness of guilt arising from a combination of post offence conduct and a lie and it was also held (at [61]) that it was inevitable that the jury, without proper direction, might readily conclude that the lies in the police interview were told out of consciousness of guilt. Ultimately it was held (at [65] – [66]) that a Zoneff direction would not have sufficed and that an Edwards direction should have been given notwithstanding it was not sought by trial counsel.

82 The contrast between that case and the present is that the concoction of evidence with a witness and the lies clearly gave rise to an inference that they were done as a result of the appellant's consciousness of his guilt. Such an inference was not logically available from the statements made by the appellant that were the subject of grounds 2 and 3.

83 R v Nguyen [2001] VSCA 1; 118 A Crim R 479 concerned a trial for the shooting murder of the applicant's stepson in the kitchen of the family home. The applicant's case was that the weapon had been accidentally discharged as he was cleaning it. There was evidence that almost immediately after the incident the applicant had left the house and concealed the weapon and that he later disposed of it so that it was never recovered. He had also lied to the police in saying that some unknown intruder was responsible for the shooting and he encouraged his wife and stepdaughter to provide a similar version. The prosecutor made submissions to the jury concerning these lies and other post offence conduct that were characterised by Winneke P (at [6]) as an invitation to use them as demonstrating that the applicant had the necessary intent to support the charge of murder as opposed to the claim of accident that the applicant had advanced.

84 The prosecutor had sought to rely upon the evidence as giving rise to an inference of consciousness of guilt but the trial judge ruled that was impermissible because the lies and other conduct were no longer material to the issues in the trial, given that the applicant had acknowledged in his evidence that it was he who had discharged the weapon. The trial judge gave the jury a direction in accordance with Zoneff v The Queen. That is, he directed the jury that the evidence was relevant to the applicant's credibility but could not be used as evidence of guilt. The applicant's counsel did not seek any further direction.

85 Winneke P held that the directions were inadequate in the circumstances: [18] …(I)t seems to me that there was a real risk in this case that the jury would use the applicant's immediate post-offence conduct as probative of his guilt. It was the conduct of the applicant, immediately after the shooting, in concealing the weapon and thereafter pretending to police that an intruder had shot the deceased, which, because it was capable of being used to prove intent, put the applicant at risk in the absence of proper directions. It was this combination of the concealment and pretence which gave the evidence its probative value. It did not lose its probative value, as the judge appears to have thought, simply because the applicant thereafter conceded that he was holding the gun when it discharged. If anything, that only accentuated the materiality of the evidence because the issues were narrowed to 'voluntariness' and 'intent'. These issues could only be determined by the drawing of inferences and the jury were invited to draw those inferences in part by relying upon the post-offence behaviour of the applicant. Post-offence conduct, including lies, only becomes probative because it stems from a consciousness of guilt. The strength of its probative value, however, will depend upon its nature and the use which is sought to be made of it. It will rarely be the case that its strength is such that it can prove guilt directly. Generally, as here, it will form part of the body of circumstantial evidence from which the jury is asked to infer the guilt of the accused. Where that is the case, it has been said that the employment of the term 'consciousness of guilt' is misleading because it suggests a conclusion about the conduct which undermines the presumption of innocence. However, where the conduct is being used, and is capable of being used, to prove guilt, the trial judge must, in my view, be astute to the clear possibility that the jury will so use it, and to give such directions as are needed to ensure that it is not misused. (Footnotes omitted).

86 There is a clear contrast between that case and the present. The evidence there was of considerable significance in the prosecution case that the appellant had acted voluntarily and with intent in the otherwise inexplicable shooting of his stepson. The evidence in the present case could in no way be characterised as having significance to the issues the jury were called upon to determine.

87 Reference was made to R v Ali [2002] VSCA 194; 135 A Crim R 426. In that case the applicant was charged with having committed a serious assault upon a fellow inmate in a cell in a complex attached to the Melbourne Magistrates Court. The cell had been occupied by a number of other inmates but it was alleged that the applicant was the sole perpetrator of the assault. The prosecutor submitted to the jury that certain lies and post offence conduct by the applicant was demonstrative of his guilt. There was evidence that the victim's blood was on the applicant's shoe and that immediately after the incident the applicant washed his shoe in a basin in the cell. The prosecutor submitted, "Why was he getting blood off it? Because he was the guilty man? His conduct afterwards demonstrates his guilt". There was also evidence that the applicant had suggested to a prison officer that the victim had suffered an epileptic fit. The prosecutor submitted, "Ali knows, of course, that that is not true. Ali knows what has happened in that cell. Why does he say? (sic). His attempt and the only one to say anything like that, his attempt to hide what he has done is demonstrative and eloquent of his guilt". The trial judge did not give an Edwards direction. The applicant's counsel specifically disavowed any request for same. It was held by Phillips CJ, with whom the other members of the Court agreed, that such a direction should have been given, at least to warn that there may be explanations for the telling of lies or other post-offence conduct which did not involve a consciousness of any guilt.

88 Obviously in that case, with the prosecutor submitting that the evidence of the appellant's post offence conduct demonstrated his guilt, an Edwards direction was required. The prosecutor in the present case made no such submission.

89 In R v Juric [2002] VACA 77; 129 A Crim R 408 at [39] – [41] there are statements concerning the need for directions in a case in which there is evidence that the accused has sought to rely upon a false alibi "because there is a danger that (the jury) will immediately conclude that the accused is raising it to conceal his guilt" and "(t)he raising of a false alibi may well demonstrate a consciousness of guilt". Mr Odgers contended that this applied a fortiori in a case such as the present where, he submitted, there was evidence of the appellant seeking to raise a false alibi not for himself but for an alleged co-offender. I have earlier indicated my conclusion that this is not how the statement by the appellant that he arrived before the robbery can be characterised.

90 In R v ON [2009] QCA 62 it was alleged that the appellant had committed a variety of sexual offences against his step-daughter when she was aged between 13 and 20. There was evidence of a pretext telephone conversation between the complainant and the appellant a little over a year after the last alleged offence. The complainant made reference a number of times in very broad terms to what had gone on between them in the past. The appellant did not make any admissions but he also did not deny any of the conduct referred to. The prosecutor submitted to the jury that the appellant's failure to deny any of the assertions of sexual misconduct was demonstrative of a consciousness of guilt. No Edwards direction was sought or given. Holmes JA, with whom the other members of the Court agreed, stated: [41] And once the prosecutor invited the jury to conclude that the conversation demonstrated a consciousness of guilt, upon which it could act, it was incumbent on the trial judge to give a direction of the Edwards type, with the jury being cautioned that it should consider whether there might be other reasons than consciousness of guilt for the appellant's responses, and that the relevant consciousness of guilt must be in relation to the offences charged, not some other misconduct.

91 It was held (at [42]) that a miscarriage of justice had occurred because of a risk that the jury regarded the conversation as, in some unspecified way, indicative of guilt.

92 This case can be distinguished as the prosecutor submitted that the failure of the accused to deny the allegations put to him by the complainant was demonstrative of a consciousness of guilt, which is significantly different to the present case.

93 Finally, reference was made to R v SBB [2007] QCA 173; 175 A Crim R 449. It involved an allegation of a sexual assault by the appellant upon his five year old stepson. There was evidence that after he had been charged the appellant sought to have the child say that he had made up the allegations because he was angry with the appellant and also sought to have the child not appear at court. The prosecutor referred to these matters in his address to the jury, submitting, "Are these the actions of an innocent man who had nothing to fear from the truth?". It was held that, notwithstanding the absence of any request by defence counsel, the jury should have been given an Edwards type direction in order that they consider other possible explanations for conduct which were consistent with innocence in order to prevent reasoning that the conduct could only show guilt.

94 The prosecutor's submission that the actions of the accused were motivated by a fear of the truth invited consciousness of guilt reasoning, far removed from what was submitted by the prosecutor in the present case.

Conclusion

95 I am not persuaded that either ground of appeal has merit. I propose that leave to rely upon each ground be refused and that the appeal be dismissed.

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