MM v R

1. [1]

   ADAMSON JA: MM (the applicant) seeks leave to appeal against his convictions for 9 sexual offences (counts 1-4 and 6-10 on the indictment) contrary to ss 61M(2) and 66C(4) of the Crimes Act 1900 (NSW) against his daughter, HM (the complainant). The offences were alleged to have been committed between 1 May 2016 and 25 August 2018 when HM was under the age of 16 years. On 1 March 2022, Hock DCJ (the trial judge) directed a verdict of acquittal in respect of count 5. In respect of all remaining counts, the jury returned guilty verdicts on 7 March 2022.

2. [2]

   On 1 July 2022, MM was sentenced to a term of 10 years’ imprisonment, commencing on 7 March 2022 and expiring on 6 March 2032, with a non-parole period of 6 years and 6 months. He will first be eligible for parole on 6 September 2028. There is no challenge to the sentence.

3. [3]

   The sole ground of appeal is:

4. [4]

   Leave is required pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) as the ground is not confined to a question of law alone. Leave is also required pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW), as defence counsel did not seek the direction which the applicant now contends ought to have been given.

5. [5]

   The ambit of the ground of appeal does not require the evidence adduced by the prosecution to be set out in detail. It is sufficient, for present purposes, to record that the complainant gave evidence of the offences and her complaints to others (some of which were recorded in text messages, which were tendered). Her mother, KM, and Detective Senior Constable Phillip Marsi also gave evidence.

The evidence and conduct of the trial relevant to the ground of appeal

1. [6]

   KM gave evidence that, on 30 September 2020, in the course of an argument about the complainant’s desire to leave home, the complainant told KM that the applicant had been touching her. KM turned to the applicant and asked, “How could you? How could you?”, to which he replied, “I don’t know what you’re talking about.” KM asked the applicant to leave the house, which he did.

2. [7]

   KM’s evidence was as follows:

3. [8]

   The applicant, who did not call or give evidence (as was his right), did not substantially contest the evidence of this exchange. His case was that there had been no sexual conduct or behaviour with the complainant at all.

4. [9]

   In the Crown closing address, on 1 March 2022, the prosecutor referred to the complainant’s disclosure to KM as follows:

5. [10]

   The Crown accepted in this Court that the passage highlighted above invited consciousness of guilt reasoning.

6. [11]

   No objection to this aspect of the Crown address was taken by defence counsel.

7. [12]

   Defence counsel also addressed on 1 March 2022. The address largely focused on challenges to the complainant’s credibility. Defence counsel referred to the complainant’s disclosure to KM and KM’s questioning of the applicant. However, the only submission made about this evidence was that just because KM believed the complainant did not mean that she was telling the truth.

8. [13]

   The trial judge commenced the summing up on 1 March 2022. On the morning of 2 March 2022, before the trial judge resumed her summing up, her Honour raised, in the absence of the jury, the prosecutor’s submission set out above. At this point, the following exchange occurred:

9. [14]

   Following that discussion, defence counsel asked the trial judge to remind the jury that after the applicant said that he did not know anything about the allegations, KM swore at him and told him to leave, following which he left. Thus, defence counsel specifically requested that the jury be reminded of his denial (which was consistent with the defence case) and that his departure was in accordance with KM’s request (and was therefore not of his own volition and did not amount to “flight”).

10. [15]

    Shortly after the jury returned, the trial judge said, of present relevance:

11. [16]

    In the first paragraph of the passage extracted above, the trial judge, in accordance with defence counsel’s request, reminded the jury of the applicant’s denial and his subsequent departure following KM’s request. In the second passage, her Honour directed the jury about the second aspect, the applicant’s calm demeanour, apparently with a view to diminishing its significance.

Consideration

1. [17]

   Mr Howell, who appeared on behalf of the applicant in this Court, submitted that the prosecutor’s submission regarding the applicant’s reaction to the complainant’s accusations ought not to have been made and, once made, ought to have been withdrawn. He submitted that the effect of the prosecutor’s submission was to invite the jury to reason that the applicant’s reaction when confronted by his wife was the reaction of a guilty person in that, if HM’s allegations were untrue, his reaction would have been different. Mr Howell submitted that, irrespective of the attitude taken by defence counsel, the primary judge ought to have directed the jury that it was not entitled to rely on the applicant’s reaction to the accusation in support of the prosecution case.

2. [18]

   The present application turns on the important distinction between:

   1. (1)

      words and conduct of an accused which can be used as an implied admission, also referred to as evidence of a “consciousness of guilt”, and which form part of the evidence against the accused in the Crown case; and

   2. (2)

      words and conduct of an accused which may affect the jury’s assessment of the accused’s credibility or give rise to a reasonable doubt but which do not add to the evidence in support of the Crown case.

3. [19]

   The distinction is important for several reasons. For example, evidence which can be used as evincing a consciousness of guilt weighs in the balance on the prosecution’s side of the scales when assessing guilt (at trial) or whether a verdict is unreasonable (on appeal). In this respect, an implied admission can have the same function as an express admission in strengthening the Crown case. By contrast, evidence of the accused’s words or acts which cannot be used for that purpose is relevant only to the accused’s credibility and whether the accused’s version gives rise to a reasonable doubt: see Harper v R [2022] NSWCCA 211 at [130]-[131] (Button J, Bell CJ and N Adams J agreeing). If a jury believes an accused’s version or considers that it could possibly be true, then it is obliged to acquit but if it rejects the accused’s version entirely, the jury is to put that version to one side (and count the accused’s version neither against the accused nor in favour of the Crown): De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48 at [12] (Kiefel CJ, Bell, Gageler and Gordon JJ).

4. [20]

   The concern of the law to protect accused persons in relation to the admissibility of express admissions (including in s 90 of the Evidence Act 1995 (NSW)) is also reflected in its concern as to the admissibility and use by the tribunal of fact of implied admissions. Admissions, whether express or implied, may have significant forensic power to bolster a Crown case, particularly when it is otherwise either wholly or largely based on the evidence of a single witness. The range of situations in which a consciousness of guilt has been accepted to have been evinced is wide. For example, in Woon v The Queen (1964) 109 CLR 529; [1964] HCA 23, it was held that selective answering of police questions in a recorded interview could amount to evidence of a consciousness of guilt.

5. [21]

   Where a prosecutor relies on words (commonly lies) or conduct (commonly flight or destruction of evidence) of an accused as amounting to a consciousness of guilt (an implied admission), a direction in accordance with Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63 (Edwards) is required. The statement of principle and the matters required to be included in a so-called Edwards direction are set out at 210-211 (Deane, Dawson and Gaudron JJ) as follows:

6. [22]

   Where the prosecutor does not rely on post-offence words or conduct as amounting to a consciousness of guilt, a direction that the jury ought not use the evidence as a consciousness of guilt (a so-called Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28 (Zoneff) direction, see below) will only be required if there is a risk that the jury may use it in that way. The risk may arise from the evidence itself or, more commonly, from the way in which the prosecutor has cross-examined the accused or the prosecutor’s closing address.

7. [23]

   Where there is thought to be a risk that evidence of words or conduct might be used by the jury as evidence of a consciousness of guilt (and thus supportive of the prosecution case), it is important to identify in the direction the words or conduct which are said to carry that risk.

8. [24]

   In Zoneff, the prosecutor did not suggest, when cross-examining the appellant at trial, that any answer given was a lie told out of consciousness of guilt. Nor did the prosecutor address the jury (as the appellant represented himself at trial).

9. [25]

   In the summing up, the trial judge in Zoneff gave the following direction:

10. [26]

    In Zoneff, the majority (Gleeson CJ, Gaudron, Gummow and Callinan JJ) said:

11. [27]

    The High Court confirmed that a direction to the jury concerning, in that case, lies was required if there was a risk that the jury might otherwise misunderstand the use to which the evidence could be put. The majority said:

12. [28]

    Kirby J said, to similar effect, at [71]:

13. [29]

    The forensic decision of defence counsel to seek, not seek, or refuse, a direction is relevant but not determinative of whether there has been an error or a miscarriage of justice (see, for example, AB v R [2023] NSWCCA 165). The use of consciousness of guilt reasoning without a direction in accordance with either Edwards or Zoneff has the potential to make the trial of an accused unfair.

14. [30]

    I propose to survey cases to which the Court has been referred by the parties in their submissions. They illustrate the circumstances in which the absence of a Zoneff direction has been challenged. They also demonstrate the factors which are relevant to whether a conviction ought be quashed on that basis, which include the nature and importance of the evidence, the risk that it will be used by the tribunal of fact as evidence of guilt and the way in which the trial has been conducted.

15. [31]

    In Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40 (Dhanhoa), the Crown in final address pointed out to the jury the differences between the appellant’s account to police in September 1999 and what he said in his evidence at trial. He did not, however, submit that either of these versions amounted to lies which indicated a consciousness of guilt. The High Court considered that neither an Edwards nor a Zoneff direction was required as the prosecutor’s submission sought to cast doubt on the credibility or reliability of the appellant but did not seek to invite the jury to engage in consciousness of guilt reasoning. Gleeson CJ and Hayne J said at [34]:

16. [32]

    McHugh and Gummow JJ considered there to be “only a very slender possibility that the jury would have considered that his statement to police indicated a consciousness of guilt”: [61]. However, in any event, their Honours were not persuaded that there was a reasonable possibility that the verdict of guilty would have been different if the trial judge had given a direction concerning the lies: [63].

17. [33]

    Mr Howell relied on this Court’s decision in McKey v R [2012] NSWCCA 1; (2012) 219 A Crim R 227 (McKey). In that case, it was alleged that the appellant digitally penetrated the complainant while they were staying at the home of the complainant’s sister (KN) in preparation for KN’s wedding to N. The appellant was N’s best man. The appellant gave evidence at trial, denying that any sexual activity had taken place between himself and the complainant.

18. [34]

    The prosecutor’s cross-examination of the appellant included the following:

19. [35]

    In re-examination, the appellant said that he had spoken to his ex-partner in December 2008 about the allegations and told her that he denied them. He also explained that his sister, a policewoman to whom he spoke shortly after he learned of the allegations, advised him not to do anything further. He said that he was “a bit stunned by it all” and that he accepted the advice he had been given.

20. [36]

    In the Crown closing, the prosecutor in McKey said:

21. [37]

    In the defence closing, trial counsel said:

22. [38]

    In the summing up, the trial judge in McKey said:

23. [39]

    On appeal to this Court, Latham J (Whealy JA and Hislop J agreeing) said at [42]:

24. [40]

    In McKey, this Court distinguished Elmasri v R [2010] NSWCCA 11 in which the evidence which was said on appeal to give rise to the need for an Edwards direction was the appellant’s “unprompted denial” of the allegations. The prosecutor adduced evidence of a conversation between police officers and the appellant after the arrest of two co-accused. The police officers gave evidence of the following exchange:

25. [41]

    When the appellant was cross-examined about his “unprompted denial” (highlighted above), he said that the police had asked him (but omitted from their evidence), “Have you had any other contact with Mr Yatim by phone or any other way apart from him dropping his daughter off?”. Although the Crown did not rely on this unprompted denial as either a lie or as evincing consciousness of guilt, it was argued on appeal that there was a real risk that the jury would have used it as evidence of a consciousness of guilt and that, accordingly, an Edwards direction ought to have been given and that its absence caused a miscarriage of justice.

26. [42]

    This Court (R A Hulme J, McClellan CJ at CL and Price J agreeing) refused leave to rely on this ground, finding that “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”: [59]. R A Hulme J concluded at [62]:

27. [43]

    In DC v R [2019] NSWCCA 234, the prosecutor relied on lies told by the applicant in his recorded interview with police as relevant to the applicant’s credibility but not as evincing a consciousness of guilt. The trial judge did not direct the jury as to the use to which such false statements (if they were found to be false) could be put. Neither the prosecutor nor defence counsel sought either an Edwards direction or a Zoneff direction. Price J (Bathurst CJ and N Adams J agreeing) said at [155]:

28. [44]

    Statements to similar effect were made by Price J (Hoeben CJ at CL and Ierace J agreeing) in Decision Restricted [2021] NSWCCA 124 at [292]-[303]. In that case, a pretext conversation between the appellant and the complainant was recorded. It included the following:

29. [45]

    In the Crown closing, the prosecutor enumerated 17 reasons why the jury ought find the appellant guilty of the offences charged. The prosecutor said:

30. [46]

    The prosecutor did not explain to the jury how they could use the appellant’s answers to reason towards his guilt. Defence counsel did not address this submission in his closing address. In the summing up, the trial judge directed the jury only that the Crown was obliged to establish that the appellant’s version of events could not be reasonably true and the appellant was not required to prove that his account was true.

31. [47]

    Price J said, at [292]:

32. [48]

    On the basis that there had been a miscarriage of justice and that the appellant had lost a real chance of being acquitted, this Court found this ground to be made out, quashed the convictions and ordered a re-trial.

33. [49]

    In Harper v R, this Court found that the following passage in the Crown closing in a trial by jury (set out at [63]) included an invitation to engage in consciousness of guilt reasoning:

34. [50]

    Button J said of this passage at [136]:

35. [51]

    Neither an Edwards direction, nor a Zoneff direction was sought and none was given. The appeal was dismissed on the ground that the absence of such a direction did not cause a miscarriage of justice. The Court gave three reasons for this conclusion: first, the submission made by the Crown was “merely one of many arguments” and “was by no means the fulcrum of the case” ([139]). The verdicts of not guilty returned on many counts indicated that the absence of direction “did not play a compelling role in the deliberations of the jury” ([140]). Thirdly, the Court, having rejected an unreasonable verdict ground, considered the strength of the Crown case to be such that the absence of a direction did not constitute a miscarriage of justice ([141]).

36. [52]

    In the present case, the applicant’s words and conduct, taken at its broadest, had three aspects: first, a denial of the accusations; second, a calm demeanour; and, third, a departure from the premises when asked by KM to leave. His denial of the accusations could not be classified as a “lie” because it accorded with his plea of not guilty. Further, the applicant’s departure following KM’s request did not amount to “flight” because he left as a consequence of KM telling him to go. This left his calm demeanour as the only basis on which his post-offence conduct might have given rise to a risk that the jury would use it as evidence of a consciousness of guilt.

37. [53]

    The potential for consciousness of guilt reasoning on the basis of post-offence conduct arose both from KM’s evidence and the prosecutor’s closing address. KM described the applicant as being “as calm as anything”, as if she had just asked him what he wanted on his toast, and observed that his response was “bizarre”. The prosecutor, in closing address, invited consciousness of guilt reasoning when he postulated that the jury might have thought that the applicant’s reaction, if he had been innocent, “might have been different”, given that he had just been accused of “horrendous crimes”. This submission ought not to have been put in circumstances where the prosecutor purported to disavow consciousness of guilt reasoning.

38. [54]

    I consider that leave to argue this ground ought be given under r 4.15 of the Rules as the alleged defect arose from the prosecutor’s conduct of the trial in adducing KM’s evidence, disclaiming consciousness of guilt reasoning but then implicitly raising it in the course of final address.

39. [55]

    It is plain from the transcript extracted above that the trial judge was concerned about the risk of the jury misusing the evidence, particularly given what the prosecutor said about the applicant’s response (in terms of his demeanour) to the accusations. Her Honour raised the matter with counsel, who both resisted it. Instead, her Honour gave a direction set out above, telling the jury to use their common sense to work out what they might expect a person in the position of the applicant to do or say when faced with allegations such as these and to consider that people do not always act predictably in certain situations.

40. [56]

    The direction which the trial judge gave did not amount to a Zoneff direction since it did not expressly prohibit consciousness of guilt reasoning by warning the jury not to use the applicant’s conduct to reason to guilt. Had her Honour included such a warning, it would have been to the following effect: I give you this warning: do not follow a process of reasoning to the effect that just because a person might react calmly to a serious allegation, that is evidence of guilt. Nonetheless, the direction contained many of the elements of such a direction.

41. [57]

    The applicant’s reaction to the accusations (beyond his denial, which was consistent with his case) was not a significant matter in the trial. The Crown case rested almost exclusively on the complainant’s evidence. The defence case was, as referred to above, almost exclusively concerned with challenging her credibility. Unlike a deliberate lie or flight (which have a greater potential to be incriminating because they tend to be less equivocal), the applicant’s calm demeanour when denying the accusations and his departure from the house at the request of KM were consistent with both innocence and guilt. To elevate the applicant’s calm demeanour to the potential for consciousness of guilt reasoning in the summing up (by directing the jury not to engage in such reasoning) would have tended to prejudice the applicant by intimating that the applicant’s calm response was inconsistent with innocence (and consistent with guilt), as his trial counsel evidently appreciated in not seeking a direction.

42. [58]

    While defence counsel’s conduct in not seeking a Zoneff direction is not determinative, it is instructive. Defence counsel had a forensic interest in the jury being reminded by the trial judge in the summing up of his denial of the accusations and that his departure was at the request of KM. He can be taken to have assessed the risk of the jury engaging in consciousness of guilt reasoning in respect of the applicant’s demeanour as being so low as not to warrant a Zoneff direction.

43. [59]

    In the circumstances, I am not persuaded that there has been any miscarriage of justice by reason of the omission to give a full Zoneff direction. Indeed, there was much to be said for the approach adopted by the trial judge, which was to remind the jury that people’s reactions to accusations differ and that people do not always act predictably in such circumstances without warning them not to use his demeanour as evidence of guilt.

Further matters

1. [60]

   The present ground of appeal was raised in circumstances where the prosecutor, having eschewed consciousness of guilt reasoning, invited the jury to engage in it in the portion of his closing address identified above. That it formed no part of his opening suggests that it was a forensic flourish. The important distinction to which I have adverted above between evidence of a consciousness of guilt and evidence which may cast doubt on the reliability of an accused’s version must be borne in mind, particularly by prosecutors. It is insufficient for a prosecutor to state that evidence is not relied on as evidence of consciousness of guilt if, as a matter of substance, it is sought to be used as such.

2. [61]

   Although the overriding duty of a trial judge is to ensure that an accused person is tried fairly, it is regrettable when prosecutors are insufficiently alert to the potential, engendered by their own submissions, for evidence to be used in an illegitimate way. The trial judge in the present case was alert to the issue, raised it with counsel and addressed it in what I consider to be an appropriate way, thereby preserving the fairness of the applicant’s trial.

Proposed orders

1. [62]

   For the reasons set out above, I propose the following orders:

   1. (1)

      Grant leave pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).

   2. (2)

      Grant leave to appeal.

   3. (3)

      Dismiss the appeal.

2. [63]

   PRICE J: I agree with Adamson JA.

3. [64]

   DAVIES J: I agree with Adamson JA.