Citation: Regina v Rushton [2000] NSWCCA 513
Court: NSW Court of Criminal Appeal
Date: 24 November 2000
Judge(s): Sully J, Bell J, Howie J
Background
The appellant was convicted by a jury in the District Court of robbery in company under the Crimes Act 1900, arising from an armed robbery of a newsagency at Oatlands in suburban Sydney on 28 August 1997. Three men were involved in the robbery, and a van owned by the appellant's de facto wife was used as the getaway vehicle. The central question at trial was whether the appellant was the driver of that van.
The Crown's case rested largely on witness accounts and, critically, on a recorded police interview in which the appellant said he had possession of the van for the entire day and that no one else had access to it. At trial, the appellant told a different story: he said he had lent the van to a man named Mark Fussell for about an hour in exchange for fifty dollars, and that Fussell had later coached him to tell police he had the van all day. The appellant said he lied to police partly out of fear of Fussell and partly to conceal from his de facto wife that he had lent her vehicle.
An alibi witness confirmed the appellant was at a Liverpool hotel during the relevant period, though that witness was unable to precisely identify the date when speaking to police in the lead-up to trial.
Legal Issues
- Whether the trial judge's directions to the jury on "consciousness of guilt" arising from the appellant's lies in the police interview were legally sound
- Whether the identified misdirection amounted to a substantial miscarriage of justice, or whether the proviso under s 6(1) of the Criminal Appeal Act 1912 should be applied to preserve the conviction
Decision
Howie J (with Sully and Bell JJ agreeing) identified a fundamental problem with the way the issue of lies was put to the jury. The trial judge directed the jury that the statements the appellant made in his police interview, specifically his claim that he had the van all day and that no one else had access to it, could be used as evidence of consciousness of guilt. The difficulty was that the Crown was simultaneously urging the jury to find those very same statements were true. A statement cannot rationally give rise to an inference of consciousness of guilt if the party asserting guilt also contends the statement is accurate.
The court explained that the Edwards v The Queen framework for using lies as evidence of consciousness of guilt presupposes that the lie is, in fact, a lie. Where the Crown asserts the disputed statement is the truth, it cannot also rely on it as a deliberate falsehood from which guilt may be inferred. The trial judge's directions created a false and confusing issue for the jury by treating as a lie something the Crown itself argued was true.
Howie J concluded that the summing-up on this issue was fundamentally flawed. The real question for the jury was whether the Crown had excluded the reasonable possibility that the appellant was telling the truth when he said he lied to police. That question went directly to guilt, not merely to consciousness of guilt as a separate strand of circumstantial evidence. The proviso in s 6(1) of the Criminal Appeal Act 1912, which allows a court to dismiss an appeal despite a legal error where no substantial miscarriage of justice has occurred, was not applied. His Honour was not persuaded that no substantial miscarriage had occurred.
Orders Made
- Appeal allowed
- Conviction quashed
- Retrial ordered
- Sentence set aside
- Appellant remanded in custody to appear in the Bails Court on the following Monday
Key Takeaways
- The "consciousness of guilt" principle, as recognised in Edwards v The Queen, applies where a statement is used as evidence of deliberate falsehood. It cannot logically be invoked by the Crown in respect of a statement the Crown simultaneously asserts was true.
- Where the Crown's own case depends on the truth of a statement made by the accused, directing the jury to treat that same statement as a lie evidencing guilt produces an irreconcilable contradiction and may constitute a fundamental misdirection.
- A misdirection of this kind does not automatically result in a quashed conviction: the court must still consider whether the proviso under s 6(1) of the Criminal Appeal Act 1912 applies. Here, the Court of Criminal Appeal was not satisfied that no substantial miscarriage of justice had occurred, so the proviso was not applied.
- Objections by defence counsel at trial to the use of lies evidence preserved the issue for appeal, even where the precise basis of the objection differed from the ground ultimately accepted by the appellate court.
- Remaining grounds of appeal, which would have produced the same remedy of a retrial, were left unresolved. The court noted those grounds related only to the conduct of the particular trial and could have no bearing on any retrial.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Crimes Act 1900 (NSW), s 97 (robbery in company)
Cases:
- Edwards v The Queen (1993) 178 CLR 193