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Court of Criminal Appeal 26 May 1999

R v Tran

[1999] NSWCCA 218

Assault & violenceTheft & property
DECISION : APPEAL ALLOWED

Citation: R v Tran [1999] NSWCCA 218
Court: NSW Court of Criminal Appeal
Date: 26 May 1999
Judge(s): Wood CJ at CL; Ireland J; Kirby J

Background

The appellant was tried in the District Court at Sydney on five counts arising from events on 22 October 1996. The Crown alleged that he participated with several others in a robbery involving serious violence against the primary victim, followed by a home invasion in which three occupants were robbed and tied up.

The Crown case was entirely circumstantial. Its three pillars were: the appellant's association with the co-offenders and his presence with them at the Stardust Hotel before the offences; his possession of a watch identified as stolen from the primary victim; and his fingerprint found on Cambodian banknotes seized during a search of a co-offender's home.

The appellant gave sworn evidence denying involvement. He said he had purchased the watch from a street vendor in Cabramatta for $30, and explained the fingerprint by saying he had handled notes he saw on a table at a friend's house. A female witness who had been in the offenders' vehicle gave evidence that she saw the appellant with the group beforehand but was uncertain whether he was present during the offences, retreating substantially from her earlier police statement. The trial judge convicted the appellant on four counts, and he appealed to the Court of Criminal Appeal.

  • Whether the trial judge's direction to the jury on consciousness of guilt (the "lies direction") was a misdirection amounting to a miscarriage of justice.
  • Whether the guilty verdicts were otherwise unsafe or unsatisfactory, such that acquittals rather than a new trial should be ordered.

Decision

The Court identified a fundamental problem of circularity in the way the trial judge directed the jury on the appellant's explanations for the watch and the fingerprint. The judge invited the jury to treat those explanations as lies, and to use any such lies as additional circumstantial evidence of guilt. However, the only basis on which the jury could have concluded that the explanations were lies was by first assuming, from the other circumstances, that the appellant was guilty. No independent evidence established that his accounts were false.

Wood CJ at CL held that this was an impermissible approach. Where a lie is not independently established, it cannot add to the remaining circumstances in a circumstantial case. To use it otherwise is to reason in a circle: guilt is inferred from the lie, but the lie is only a lie if guilt is assumed. The Court found that the trial judge's direction, while otherwise careful and including impeccable directions on circumstantial proof, fell into this error in a way that was likely significant to the jury's deliberations.

The Court was also influenced by a later passage in the summing-up in which the judge compared the significance of different lies, expressly signalling to the jury that the watch and currency explanations were the most important. That passage underlined the weight the jury would have placed on those matters.

Although the Court found a serious misdirection, it did not consider the verdicts unsafe or unsatisfactory on the evidence overall. After an independent examination, the Court was not persuaded that the jury ought to have entertained a reasonable doubt about the appellant's guilt. Accordingly, the appropriate remedy was a new trial rather than acquittal.

Orders Made

  • Appeal allowed.
  • Convictions quashed and sentences set aside.
  • New trial ordered.

Key Takeaways

  • A lies direction (directing a jury to use a defendant's false denial as evidence of guilt) only operates legitimately where the lie is independently established, that is, established by evidence other than an assumption of guilt derived from the very circumstances the lie is said to support.
  • Where the sole basis for concluding that an explanation is a lie is the jury's prior inference of guilt from other circumstances, admitting the "lie" as a further circumstance creates impermissible circularity.
  • The Court of Criminal Appeal confirmed that a serious misdirection of this kind constitutes a miscarriage of justice sufficient to quash convictions, even where the trial judge's other directions were correct and careful.
  • A finding of misdirection does not automatically lead to acquittal. Where the evidence, independently assessed, does not establish that the verdicts were unsafe or unsatisfactory, a new trial is the appropriate remedy.
  • The weight a judge's summing-up attributes to particular evidence matters: passages that signal the relative importance of misdirected matters can compound the risk that the jury's verdict was infected by the error.

Legislation and Cases Referenced

No legislation or cases were cited in the text of the judgment or in the metadata provided.