New South Wales Court of Criminal Appeal CITATION : Regina v Rushton [2000] NSWCCA 513 FILE NUMBER(S) : CCA 60061/00 HEARING DATE(S) : 24 November 2000 JUDGMENT DATE : 24 November 2000 PARTIES : Regina v Kevin Thomas Rushton JUDGMENT OF : Sully J at 1; Bell J at 2; Howie J at 3 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/21/0111 LOWER COURT JUDICIAL Karpin DCJ OFFICER : COUNSEL : T.J. Golding (Appellant) L.M.B. Lamprati (Crown) SOLICITORS : Stephen Hodges (Appellant) S.E. O'Connor (Crown) CATCHWORDS : Summing up - Consciousness of guilt - lies LEGISLATION CITED : Criminal Appeal Act 1912 - s 6(1) CASES CITED: Edwards v The Queen (1993) 178 CLR 193 DECISION : Appeal allowed. Conviction quashed. Retrial ordered. IN THE COURT OF CRIMINAL APPEAL 60061/00 SULLY J BELL J HOWIE J FRIDAY 24 NOVEMBER 2000 REGINA v KEVIN THOMAS RUSHTON JUDGMENT 1 SULLY J: I agree entirely with the orders as proposed by his Honour. The orders of the court will be as proposed by Justice Howie. The appellant is remanded in his present custody to appear at 10 am in the Bails Court on Monday next. 2 BELL J: I also agree. 3 HOWIE J: The appellant appeals to this Court against conviction and sentence following a trial by jury in the District Court. The appellant was convicted by the jury of a charge of robbery in company contrary to s 97 of the Crimes Act 1900. The appellant was sentenced by her Honour Judge Karpin to 8 years penal servitude made up of a minimum term of 5 years and an additional term of 3 years. 4 The issue before the jury was whether the appellant was one of three persons involved in a robbery of a newsagency at Oatlands in suburban Sydney at about 3.30pm on 28 August 1997. There was no dispute at the trial that such a robbery occurred, that three persons were involved in it, that a van owned by the appellant's de facto wife was used in the robbery, or that one of the robbers was a man named Mark Fussell. The Crown case was that the jury would be satisfied beyond reasonable doubt that the driver of the vehicle at the time of the robbery was the appellant. 5 The evidence in the Crown case was largely unchallenged. It consisted substantially of accounts by persons who witnessed the three men at various times before, during and after the robbery. There was evidence of the presence of the van and the three men in the vicinity of the newsagency from about 3 pm until just after 3.30pm. There were accounts of the activities of the three men in relation to the van from which the jury could infer that it was used as the get away vehicle for the persons who actually were present in the newsagency committing the robbery. A bag was found in the van by the appellant's de facto wife and handed by her to police which contained items, including clothing, belonging to Mr Fussell. There was also evidence that in a search of the appellant's home police found a tracksuit which was identified by at least one witness as being similar to clothing worn by one of the robbers. 6 There was also before the jury a recorded interview between the appellant and police officers made after his arrest on 1 September 1997. During the interview, the appellant denied involvement in the robbery but conceded that the vehicle had been in his possession for the whole of the day of the robbery and that no other person had access to it during that day. The appellant told police that he had been dressed that day in a shirt, tie and black pants. He told the police of his movements on the day which included attending a hotel at Liverpool for a couple of hours in the afternoon and then stopping in Parramatta. He said that after leaving Parramatta and while returning to the city, he gave a lift to a hitchhiker whom he picked up on Victoria Road near Parramatta and whom he dropped a few kilometres up the road. He said that he became lost in a residential area, and at one stage alighted from the vehicle to ask directions from an elderly pedestrian. He denied knowing anyone named Mark Fussell 7 In June 1999, about five months before the commencement of the trial before Judge Karpin, an alibi notice had been served on the Crown indicating that the appellant intended to give evidence that he was at the Commercial Hotel in Liverpool at the time of the robbery. On 13 September 1999 notice was given that the appellant intended to call Cameron Fairweather as an alibi witness. 8 The appellant gave evidence at the trial that he had not told the complete truth to the police about his movements on the day of the robbery. He told the jury that he went to Liverpool at about 11.30pm and he there saw Mark Fussell, a person whom he had met previously. The appellant said that Mr Fussell asked him whether he could borrow his vehicle for about an hour because he had to collect money that was owed to him. The appellant at first declined to lend him the van but changed his mind when Mr Fussell offered him fifty dollars. While Mr Fussell was using the vehicle, the appellant waited at a hotel in Liverpool drinking beer and playing pool. He said he arrived at the Commercial Hotel a little before midday. It was while he was at the hotel that he met Mr Fairweather. 9 The appellant told the jury that he did not receive the motor vehicle back again until it was returned to him after 4.00pm. He said that, when returning the vehicle to him, Mr Fussell told him that he had a fight with the person who owed him the money and Mr Fussell bashed him. Mr Fussell also said that he thought someone might have taken the number plate of the vehicle and that, if anyone asked the appellant, he should say that he picked up a hitchhiker and dropped him off at Victoria Road. The appellant said that Mr Fussell reminded him of what happened to police informants. He told the appellant that he should not tell the police that he had the vehicle and Mr Fussell would look after him. 10 The appellant told the jury that he said to the police that he had possession of the van all day because he did know what was going on at first and he was afraid that his wife would find out that he had lent the car because they were having a lot of problems at the time and it was something that he did not need her to find out. He also said that he did not want to "dob in" Mark Fussell. 11 During the course of cross-examination by the Crown Prosecutor the following questions and answers occurred: "Q. You were a suspect of the armed robbery? A. That is right. Q. The police told you the car was used for the armed robbery? A. That is right Q. And yet you did not tell them - I am sorry. You told them that you had the car the whole day? A. That is right, yes. Q. You told them the car was not out of your possession? A. That is correct. Q. Did you know the consequences of telling the police that? A. Yes, I do. Q. That was the truth, wasn't it? A. I beg your pardon? Q. The truth was that you did have the car the whole day and it was not our of your possession? A. No, that's not correct. No." 12 After the conclusion of the appellant's evidence, the defence then called Mr Fairweather to confirm that the appellant was at the hotel in Liverpool between noon and 4.00pm on the day of the robbery. Mr Fairweather in cross-examination agreed that he had told a police officer a few weeks before the trial, that he had a beer with the appellant at a hotel in Liverpool a few years ago but he could not further clarify the date. 13 As part of its case the Crown relied upon evidence of the appellant's consciousness of guilt which it said was evidenced by the lies he told during the interview with police. After the Crown's closing address defence counsel indicated to her Honour that he objected to lies told by the appellant in the interview being used in this way. The trial judge overruled the objection and in summarising for the jury the circumstantial case relied upon by the Crown said: Circumstantial evidence must be viewed in the light of the total evidence you heard from the Crown and the accused. The Crown has told you the circumstantial evidence upon which it relies. It relies upon the vehicle which was in the possession of the accused in the morning and in the afternoon. The Crown says you will be satisfied that ultimately in fact it was in his possession the whole day. The Crown relies upon the lies told by the accused in the record of interview with police after he was arrested and told that the police were investigating this armed robbery. The Crown relies on the fact that Mr Fussell's clothes were found in the van and it relies on the finding of the tracksuit as one of the strands of evidence. I shall come back to various of those in due course. 14 While I do not believe that there is any merit in the particular complaint made about the directions given on this topic, I am of the view that the trial miscarried in the way in which the issue of lies was placed before the jury by the trial judge. 15 After counsel for the Crown had addressed the jury and before the defence address, there was a discussion between the trial judge and counsel concerning the issues which had been raised by the evidence. During the course of that discussion the trial judge raised the issue of lies told by the appellant. Defence counsel disputed that evidence of lies could be used as evidence of consciousness of guilt because "the Crown will say well one or other is a lie, it's either a lie in the witness box or its a lie in the police station". 16 In answer to this submission, the trial judge said: "....the Crown can't use the lies in the witness box, assuming that the Jury found that he was lying in the witness box, I say the Crown can't use that, what I do say the Crown can use is admitted lies in relation to the police, because from that you can reasonably draw an inference, it is open to the jury to draw an inference that the reason he lied was because he was conscious of his guilt of the offence if they reject his explanation." 17 The trial judge later confirmed with the Crown Prosecutor that the lies that he was seeking to rely upon were "that I had the car in my possession all day" and "I didn't lend it to anybody". Defence counsel maintained his objection that those lies could not be used as evidence of a consciousness of guilt on the basis that there was nothing to corroborate them as lies. 18 The summing up was brief as befitting the very limited issues which were before the jury. However, the directions on the use of lies as evidence of a consciousness of guilt extended over three and a half pages of a nineteen page summing up. As part of these directions her Honour told the jury: "In giving evidence to you the accused admitted that answers in that record of interview were lies. What the Crown relies upon are two specific lies in the record of interview. One when he told the police that he had the car in his possession all day, and the other is that he told the police that did not give it to anybody else. Now he tells you that those were lies and he has given you a different version in his evidence in this court." 19 Her Honour then went on to summarise the appellant's evidence as to his explanations for telling the police what he did. Her Honour told the jury that it was a matter for them to consider whether they accepted the explanation he gave for telling those lies. 20 Later in this part of the summing up the trial judge told the jury that the Crown said that the accused told those lies "because he was conscious of his guilt". The summing up then continued: "There is a direction of law which applies to that material which is this: The Crown says that the accused told those lies because he was conscious of his guilt, he wanted to avoid putting himself in a position in which the Crown(sic) could be proved against him. You have to consider whether you think that the lies the accused told the police were told deliberately. In that regard I think you would find that they indeed were, that is his own admission he had said that they were deliberate lies. You then have to be satisfied that they relate to issues which are material to the Crown case and again that is self-evident. Quite clearly the issue of who had control of that car throughout that day is an essential matter in the Crown case. You then have to consider whether in fact those lies were told because the accused feared that if he told the truth he would necessarily be found guilty of the offence with which he has been charged. You must bear in mind that people do not always act rationally about truthfulness. The accused has given you two reasons as to why he says he told those lies, and obviously it is your duty to consider those explanations that he has given, those excuses he has given. If you think it is a reasonable possibility, a reasonable possibility that he lied for one or other or both of those reasons then you cannot use those lies to support the Crown's case. If you reject his explanation for telling those lies, if you do not accept that the reason he lied was because he was afraid of his wife and of Mr Fussell you still have to be satisfied that the reason he lied was because he was conscious of his guilt of this matter. If you come to the view that he did tell lies deliberately and that you reject the explanation that he has given and that he told those lies because he did not want to tell the police things which would lead to his conviction in this matter, you may come to the view that he told those lies because he was conscious of his guilt of this matter and then you may use it as part of the evidence in the Crown case to support the Crown case. You cannot use that evidence standing by itself. You can use it as part of the total evidence which you have accepted for the Crown as something which points to the guilt of the accused because it was an evasion of the truth designed to give an explanation and designed to give that explanation on the basis that he was conscious of his guilt of the offence." 21 As I have already indicated, insofar as it was available to the Crown to rely upon the two particular lies identified by her Honour as evidence of his guilt, then those directions were adequate in the circumstances of this case. Because the appellant had offered particular explanations for why he lied, it was unnecessary for her Honour to say any more to the jury about why a person might lie notwithstanding that he was innocent of the charge, see Edwards v The Queen (1993) 178 CLR 193 at 211. As her Honour pointed out to defence counsel at the trial, it may have undermined the explanations proffered by the appellant in the eyes of the jury had her Honour suggested that there might be other reasons why he might have lied to the police than those he gave. 22 The difficulty that I have with the directions is that, in my view, the jury could not use the two statements, which were identified as being the lies relied upon by the Crown, as giving rise to a consciousness of guilt regardless of what they made of the appellant's explanations. 23 In truth the Crown's case was that the accused was being honest when he said that he had the van in his possession for the whole day. Without that admission the Crown might have had difficulty in proving that the appellant had possession of the vehicle at the time of the robbery. Because of the undisputed evidence about the presence of the appellant's de facto wife's van at the scene and the conduct of its occupants, if this admission were accepted by the jury as reliable, the appellant must have been guilty. If the jury found that there was a reasonable possibility that the appellant was lying when he told the police that he had the vehicle in his possession all day and that he did not lend it to any one else, then as a matter of practical reality that finding would have required the jury to acquit him. 24 The inconsistency in the approach adopted by the Crown and followed by her Honour is shown in the passage, which I have quoted earlier and is underlined, identifying the circumstances relied upon by the Crown in its circumstantial case. Her Honour told the jury that the Crown was asking the jury to find that the appellant had the van in his possession all day. Her Honour then told the jury that the Crown was also relying upon the lies told by the accused in the recorded interview. But one of the lies relied upon by the Crown was identified as being that the appellant told the police that he had the vehicle in his possession all day, the very same fact the Crown was urging the jury to find to be true. 25 So far as the evidence given by the accused was concerned, the real issue before the jury was whether the Crown had rebutted any reasonable possibility that the appellant was being truthful when he told the jury that he lied to police about having the van in his possession all day and that he did not give anyone else access to it. No doubt, in considering that question, the explanations given by him for what he told the police were important. But those explanations went directly to the question of his guilt and not simply to the issue of whether a consciousness of guilt arose which would support the Crown's case. 26 In my view the summing up on the issue of what the accused told the police in the recorded interview was fundamentally flawed and the jury were presented with a false and confusing issue in that regard. There were statements made in the interview that both the Crown and the appellant would have asserted were false. But the statements relied upon by the Crown, and identified by her Honour, as being available to the jury as giving rise to a consciousness of guilt did not fall into that category because the Crown was asserting that one of them at least was true. Defence counsel raised the objection to the use of the evidence as giving rise to a consciousness of guilt, although not for the reasons I have expressed in this judgment, and there is a ground of appeal before this court complaining about the directions given on lies. 27 In my view. in light of the issues before the jury and in the terms of the summing up in respect of the issue of lies, I am not persuaded that no substantial miscarriage of justice has arisen in this case and, therefore, it is not a case where in my view the proviso under s 6(1) of the Criminal Appeal Act ought to be applied. I am of the opinion that the trial of the accused miscarried and the conviction must be quashed. 28 Because all the other grounds raised would, if they were successful, merely result in an order for a retrial, it is unnecessary to consider them. They relate merely to the directions given and the conduct of the trial before her Honour and can have no bearing on the way any retrial might be conducted. 29 I propose that the appeal be allowed, the conviction quashed and that a retrial be ordered. 30 In accordance with my view that the conviction should be quashed, so too the sentence imposed by her Honour should be set aside. ************ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.