Citation: R v Houda [1999] NSWCCA 372
Court: New South Wales Court of Criminal Appeal
Date: 22 November 1999
Judge(s): Spigelman CJ, Dunford J, Hidden J
Background
The appellant was convicted in the District Court of sexual assault without consent under s 61B(1) of the Crimes Act 1900. The Crown alleged that in May 1989 the appellant took a woman he met at a club to a secluded area and had non-consensual sexual intercourse with her, threatening her with a gun to stop her calling for help.
When first interviewed by police, the appellant denied being at the club, denied knowing the complainant, and denied having sexual intercourse with her. He was later confronted with two pieces of independent evidence: the club's visitor register confirmed his attendance on the night in question, and DNA testing of samples recovered from the complainant was consistent with him being the source.
At trial, the appellant changed his account. He admitted sexual intercourse but said it was consensual. He explained his earlier lies to police by saying he was Muslim, that his mother had been present at the police station, and that he had not wanted her to know he had engaged in premarital sex. The sole ground of appeal concerned the trial judge's directions to the jury on how to treat those lies.
Legal Issues
- Whether the trial judge's directions on lies as evidence of consciousness of guilt were correct and sufficient.
- Whether the jury had been properly instructed on the preconditions that must be satisfied before lies can be used as evidence of consciousness of guilt.
- Whether the jury had been adequately told that lies alone cannot establish guilt.
Decision
The Court of Criminal Appeal found no error in the trial judge's directions and dismissed the appeal. Dunford J (with Spigelman CJ and Hidden J agreeing) held that the summing-up addressed the relevant requirements clearly and adequately.
The trial judge had told the jury that, while lies could be used as evidence of consciousness of guilt, there may be other explanations for lying and the jury needed to consider those carefully before drawing any adverse inference. A further direction, sought by the Crown prosecutor at the conclusion of the summing-up, made explicit that the telling of lies, on its own, was not sufficient to prove the charge.
Dunford J noted that the point had not been raised by defence counsel at trial, meaning leave was required under rule 4 of the Criminal Appeal Rules before it could be argued on appeal. Because the ground had no merit, leave was refused.
Orders Made
- Appeal dismissed.
- Conviction and sentence confirmed.
Key Takeaways
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Before a jury can use a lie as evidence of consciousness of guilt, three conditions must be satisfied: the lie was deliberate; it related to a material issue; and the motive for the lie was consciousness of guilt and a desire to conceal the truth, rather than some other reason.
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Where a lie is relied on not only as circumstantial evidence of guilt but also as corroboration of the complainant's evidence, it must be proved to be a lie by evidence independent of the complainant.
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Juries must always be directed that lies, standing alone, cannot establish that an accused is guilty of the offence charged.
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In dismissing the appeal, the Court of Criminal Appeal confirmed that a summing-up satisfies these requirements if it tells the jury in clear terms to consider alternative explanations for the lies before drawing an inference of guilt.
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A ground not raised at trial requires leave to be argued on appeal under rule 4 of the Criminal Appeal Rules, and leave will be refused where the ground is without merit.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 61B(1)
Cases:
- Edwards v The Queen (1993) 178 CLR 193
- R v Heyde (1990) 20 NSWLR 234
- R v Tangye (1997) 92 A Crim R 545
- R v ST (1997) 92 A Crim R 390