Regina v Taylor [1999] NSWCCA 309

New South Wales Court of Criminal Appeal CITATION : Regina v Taylor [1999] NSWCCA 309 FILE NUMBER(S) : CCA 60171/99 HEARING DATE(S) : Monday 27 September 1999 JUDGMENT DATE : 27 September 1999

PARTIES : Regina v Stephen John Taylor JUDGMENT OF : Grove J at 1; Sully J at 20; Greg James J at 21

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/11/0487 LOWER COURT JUDICIAL OFFICER : Viney DCJ

COUNSEL : M.M. Cunneen (Crown) P. Kintominas (Applicant) SOLICITORS : S.E. O'Connor (Crown) CATCHWORDS : Criminal Law and Procedure - Claim By Appellant To Have Lied To Investigators - Crown Case That He Told The Truth - Adequacy Of Directions To Jury CASES CITED: R v Preval 1984 3 NSWLR 647 DECISION : Appeal dismissed

IN THE COURT OF CRIMINAL APPEAL

60171/99

GROVE J SULLY J GREG JAMES J

Monday 27 September 1999

REGINA v STEPHEN JOHN TAYLOR

JUDGMENT

1 GROVE J: This is an appeal against conviction after trial before Viney DCJ and a jury at Sydney District Court. The appellant was convicted of supplying a trafficable quantity of a prohibited drug, namely cannabis leaf weighing approximately 3.15 kilos. The deeming provisions of the Drug Misuse and Trafficking Act 1985 operate to make the appellant liable for supply when in possession of such a quantity. 2 The appellant arrived in Sydney on a flight from Adelaide on 5 February 1998. A "sniffer" dog had drawn attention to a particular suitcase and the appellant was observed to collect it from the luggage carousel. Upon leaving the terminal he was detained by police officers and taken to an office where he was asked to open the suitcase. The activity was filmed on video tape. 3 On opening the bag the appellant noticed some newspapers and he thereon claimed that the luggage piece had been the subject of tampering in that he was aware that its contents should have been just two quilts and two pillows. These items had been taken by him to Adelaide on a previous trip when relatives had gathered for his mother's funeral. 4 Upon the luggage being opened, three cream coloured PVC pipes were located at the bottom of the bag which contained the drug abovementioned. 5 Part of the conversation between Constable Salter, who was operating the video tape, and the appellant consisted of her asking: "Sir, who packed the bag today?" and the appellant replying: "I packed the bag yesterday". 6 At trial the appellant gave evidence that he had collected the bag from his sister who was the occupant of their mother's former home. Because he was visiting a friend at a different location, he had arranged by telephone for his sister to leave the bag for him, already packed, on the front porch. His sister gave evidence confirming the arrangement and its being carried out. It was suggested that a de facto partner of his sister may have been responsible for placing the drug in the luggage. There was considerable animosity between him and the appellant. 7 The appellant testified that he did make the reply to Constable Salter's question above recited but asserted that he had told her a lie. He explained that his reason for this was that police had told him of their suspicion concerning the presence of illegal drugs and he became worried that his sister may become implicated in some way unless he assumed responsibility for packing the bag. He did not consider his sister was likely to be implicated but suspected her partner might have been. 8 The appellant relies upon a single ground of appeal, namely, that "the trial judge failed to properly instruct the jury on the issue of lies". It was argued in the appeal that his Honour erred in failing to give the jury an authoritative reminder that innocent people sometimes panic and tell lies to protect themselves or others when unexpectedly confronted by police and, second, to admonish the jury that they ought not infer a consciousness of guilt from the mere fact that the appellant had told lies to police. 9 Despite a submission at trial which I will mention later, it was not part of the Crown case to rely upon the telling of a lie by the appellant as manifesting a consciousness of guilt. It was the appellant's case that he had lied to Constable Salter when he told her that he had packed the suitcase and the truth was that he had not. 10 In charging the jury his Honour was faced with the situation that, as a matter or logic, it was plain that either the appellant (as he claimed) had lied to police at the airport when he said he had packed the bag and was truthful in his evidence or, he had been truthful when he spoke to police and therefore was not telling the truth in his evidence. Of course, when a jury convicts an accused who has testified in denial of a Crown case, there is an inevitable implication that the denial was a lie. 11 The necessity for trial judges to exercise particular care concerning directions to juries about reliance upon the telling of lies as evidencing a consciousness of guilt or in corroboration of other Crown evidence is a topic which has been frequently canvassed in this Court. The situation that arose in this case when the appellant claimed to lie was relatively uncommon and his Honour was alert to invite counsel to make any relevant submission concerning the situation. He raised with counsel specifically the inappropriateness of the usual direction about lies being told because of consciousness of guilt. 12 His Honour mentioned the logical situation that if what was said to Constable Salter was not a lie then it appeared to be an admission of packing the bag. Counsel appearing for the appellant at trial (who did not appear in the appeal) made this contribution: "It's difficult, your Honour. I respectfully submit, however, your Honour, I don't think that it could be construed as an admission and I would ask your Honour not to deal with it that way."