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4
Court of Criminal Appeal 15 February 2002

R v Hodge

[2002] NSWCCA 10

Homicide
CRIMINAL LAW SUMMING UP LIES CONSCIOUSNESS OF GUILT LIES GOING TO CREDIT CRIMINAL APPEAL RULES, R 4

Citation: R v Hodge [2002] NSWCCA 10
Court: NSW Court of Criminal Appeal
Date: 15 February 2002
Judge(s): Hodgson JA, Levine J, Howie J

Background

The appellant was convicted of murder following a trial before Dunford J and a jury in July 2000. The killing had occurred in February 1988, when the appellant was 18 years old, but his involvement only came to light eleven years later when fingerprints on a beer can at the scene were matched to him. He pleaded not guilty to murder but guilty to manslaughter on the basis of provocation, a plea the Crown did not accept.

At trial, evidence was admitted of a conversation in which the appellant flatly denied any knowledge of the deceased or the crime scene, followed by an electronically recorded interview in which he maintained those denials before exercising his right to silence after being told his fingerprints had been found at the scene. In his trial evidence, the appellant admitted the killing but claimed provocation, saying he had been woken to find the deceased sexually assaulting him.

The appellant was sentenced to fifteen years with a non-parole period of seven years. He appealed against conviction only, challenging the trial judge's directions (and the admissibility of evidence) relating to those earlier lies to police and his subsequent silence.

  • Whether the trial judge failed to direct the jury adequately about the use it could make of the appellant's lies to police, including whether those lies went to consciousness of guilt or merely to credit
  • Whether the admission of the interview evidence caused the trial to miscarry
  • Whether the trial judge was required to give a full Zoneff v The Queen direction in respect of the appellant's lies, given they were said to go only to credit rather than consciousness of guilt
  • Whether the trial judge's direction on the appellant's exercise of his right to silence was adequate

Decision

On the lies issue, the Court found that the critical distinction is between lies that bear on consciousness of guilt and lies that go only to the accused's credibility. A full Zoneff direction, which warns a jury that lies must be deliberate, motivated by a realisation of guilt, and not explicable by innocent causes, is required only when lies are used as evidence of consciousness of guilt. Where a lie goes only to credit, no such direction is necessary.

In this case, both the trial judge and (ultimately) the Crown accepted that the appellant's denials to police went only to the question of whether he had killed the deceased, a matter not in dispute at trial. Accordingly, those denials were properly treated as going to credit alone. The trial judge had also identified for the jury the one suggested lie that the Crown pressed for consciousness of guilt purposes (whether the appellant saw the deceased on the floor) and declined to give a consciousness of guilt direction on that matter, commenting that it went to credit. The Court found no error in this approach.

On the right to silence, the Court held that the trial judge's direction was adequate. His Honour told the jury the appellant had been informed he did not have to answer questions and that the jury could not hold his silence against him. No objection was taken at trial and no application for further directions was made, either during or after the summing up. The Court noted that, had any deficiency been raised, it could readily have been remedied.

The Court also observed that the case against the appellant on provocation was strong. The appellant himself accepted the medical evidence that the deceased had been struck ten to twelve times with a hammer, and the nature and severity of those injuries significantly undermined any claim of provocation. The jury was well entitled to reject his account even setting aside the evidence complained of.

Orders Made

  • Appeal dismissed

Key Takeaways

  • A full Zoneff v The Queen direction is required only where lies are tendered as evidence of consciousness of guilt, not where they go merely to the accused's credibility.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the trial judge correctly identified which lies required a consciousness of guilt direction and which did not, and committed no error in treating the appellant's police denials as going to credit alone.
  • Where no objection is taken to evidence at trial and no application for a direction is made before or after summing up, the appellate court will be reluctant to find error, particularly where any deficiency in directions could have been remedied if raised.
  • A direction that the jury cannot hold an accused's exercise of the right to silence against them need not follow any prescribed formula, provided it clearly conveys both the nature of the right and the prohibition on drawing adverse inferences.
  • Sufficient evidence of the strength of the Crown's case on the disputed issue (here, negating provocation) can support the conclusion that, even if error had occurred, no substantial miscarriage of justice resulted.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW)
- Criminal Appeal Rules, r 4

Cases
- Zoneff v The Queen (2000) 200 CLR 234
- Osland v The Queen (1998) 197 CLR 316
- Reeves (1992) 29 NSWLR 109
- The Queen v Horton (1998) 48 NSWLR 46
- The Queen v Reid [1999] NSWCCA 258
- The Queen v Dhanhoa [2001] NSWCCA 293
- R v Moussa [2001] NSWCCA 427
- The Queen v Matthews (Court of Criminal Appeal, unreported, 28 May 1996)