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Court of Criminal Appeal 13 May 2004

R v Do

[2004] NSWCCA 137

Drugs
CRIMINAL LAW: APPEAL AGAINST CONVICTION IMPORTING HEROIN EVIDENCE OF GOOD CHARACTER

Citation: Do v R [2004] NSWCCA 137
Court: NSW Court of Criminal Appeal
Date: 13 May 2004
Judge(s): Sully J, Hidden J, Hislop J

Background

The appellant was convicted in the District Court of importing a trafficable quantity of heroin into Australia. Customs officers at Sydney Airport found heroin concealed in her shoes after she returned from a trip to Vietnam. She was sentenced to imprisonment and appealed against conviction only.

When first interviewed by customs and federal police at the airport, the appellant denied knowledge of the heroin, claiming she had purchased the shoes at a Vietnamese market. In a later recorded interview at AFP headquarters, she retracted that account entirely. She then described being indebted to a woman she had met at a casino, being threatened, and being coerced into carrying the items back to Australia. She said she believed the enterprise involved smuggling diamonds, not heroin.

The appellant did not give evidence at trial. Her defence rested entirely on the account she gave in the second recorded police interview. The sole issue at trial was whether she knew, or was likely to know, that she was carrying heroin.

  • Whether the trial judge's directions to the jury about the appellant's admitted lies were adequate, given the Crown had not relied on those lies as evidence of consciousness of guilt
  • Whether the Edwards v The Queen requirements for directing a jury on lies used as consciousness of guilt evidence were met
  • Whether evidence of good character can support the credibility of an accused's denial of a charge even where that denial is made in a recorded police interview rather than in sworn evidence at trial

Decision

The trial judge's directions on the appellant's initial lies were the primary ground of appeal. Although the Crown prosecutor at trial had confined the use of the lies to the question of credibility in relation to the second recorded interview, the trial judge's summing-up went further. The directions conveyed to the jury that they could use the lies to infer the appellant's knowledge that heroin was in her shoes, effectively inviting them to treat the lies as evidence of consciousness of guilt.

The Court found this approach triggered the requirements set out by the High Court in Edwards v The Queen. Those requirements were not met. The trial judge did not identify the relevant lies with precision, did not direct the jury that they must be satisfied the appellant lied because the truth would implicate her in the offence charged, and did not adequately convey that her account in the second interview provided a possible explanation for the lies consistent with innocence of the specific charge, namely her stated belief that she was involved in diamond smuggling rather than drug importation.

On the second ground, the trial judge had ruled mid-trial that the appellant's good character evidence could not go to credibility because she had not given sworn evidence. The Court of Criminal Appeal held this was an error. Drawing on the Court's earlier decision in R v Murphy, the principle is that good character evidence can be used in relation to the credibility of an accused's denial of the charge, whether that denial comes through sworn evidence at trial or through a recorded police interview.

Senior counsel for the appellant acknowledged the second ground alone would not have been sufficient to set aside the conviction. The primary ground regarding the lies directions was determinative, and the Crown properly conceded the proviso (which would allow a conviction to stand despite a misdirection if no substantial miscarriage of justice occurred) should not be applied.

Orders Made

  • Appeal allowed
  • New trial ordered

Key Takeaways

  • Where a trial judge's directions invite the jury to use an accused's lies as evidence of consciousness of guilt, the Edwards v The Queen requirements apply regardless of whether the Crown formally relied on the lies for that purpose.
  • Those requirements include identifying the relevant lies with precision, directing the jury that they must be satisfied the accused lied because the truth would implicate them in the offence charged, and adequately conveying any explanation for the lies consistent with innocence.
  • A brief or incomplete reference to an innocent explanation for lies will not satisfy the Edwards requirements if it fails to convey the full force of the innocent explanation available on the evidence.
  • Good character evidence is capable of supporting the credibility of an accused's denial of a charge whether the denial is made in sworn testimony at trial or in a recorded police interview; the Court of Criminal Appeal confirmed this principle from R v Murphy.
  • The Court declined to apply the proviso and ordered a new trial, accepting the Crown's concession that the misdirection on lies was sufficiently serious that the conviction could not stand.

Legislation and Cases Referenced

Cases:
- Edwards v The Queen (1993) 178 CLR 193
- Melbourne v The Queen (1999) 198 CLR 1
- R v Murphy (1985) 4 NSWLR 42
- Pereria v Director of Public Prosecutions (1988) 63 ALJR 1
- R v Ray [2003] NSWCCA 227
- Zoneff v The Queen (2000) 200 CLR 234

Legislation: No specific legislation cited in the provided text.