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Court of Criminal Appeal 13 April 2005

Campbell v R

[2005] NSWCCA 132

Assault & violence
LIES TOLD BY ACCUSED LIES AFFECTING CREDIBILITY

Citation: Campbell v R [2005] NSWCCA 132
Court: NSW Court of Criminal Appeal
Date: 13 April 2005
Judge(s): Spigelman CJ, Studdert J, Greg James J

Background

The appellant was a childminder who had cared for an infant and her two sisters over a period of several months. On 1 February 2002, she was the sole adult present when the infant sustained severe brain injuries, including bilateral subdural haemorrhages and retinal haemorrhages. The appellant called an ambulance after the child "went funny," and the child was airlifted to a Sydney hospital with significant and lasting brain damage.

The Crown's case was that the appellant had shaken the infant, causing the injuries. The appellant denied any intentional harm and told the jury she had tripped and fallen while carrying the child, causing the child's head to strike a concrete floor. Medical specialists called by the Crown gave evidence that the injuries were inconsistent with such a fall and were consistent with abusive head trauma.

The jury convicted the appellant of maliciously inflicting grievous bodily harm under s 35(b) of the Crimes Act. She was sentenced to a head sentence of four years and six months, with a non-parole period of eighteen months. She appealed against her conviction only.

  • Whether the trial judge erred by failing to give a "Zoneff direction," that is, a direction warning the jury not to use the accused's lies as evidence of consciousness of guilt, where the Crown had invited the jury to draw that inference
  • Whether, in the circumstances, the evidence was sufficient to support the conviction in any event
  • Whether, if the appeal succeeded, a new trial should be ordered rather than an acquittal being entered

Decision

The central issue concerned the appellant's various accounts given to different people after the incident. She told the treating doctor one version, gave different accounts on other occasions, and notably made no mention of the fall in any of those earlier statements. The Crown prosecutor, in addressing the jury, invited the conclusion that the appellant's lies demonstrated consciousness of guilt, meaning that her dishonesty pointed to an awareness that she had done something wrong.

Where a prosecutor invites a jury to treat an accused's lies as evidence of consciousness of guilt in that way, the trial judge is required to give what is known as a "Zoneff direction." That direction instructs the jury that lies, even if proven, do not by themselves establish guilt and should not be used as direct proof of the offence. No such direction was given at trial, and the Court of Criminal Appeal found this omission constituted a material error.

Studdert J, with whom Spigelman CJ and Greg James J agreed, noted that but for the absence of that direction, he would have been inclined to dismiss the appeal. The evidence from the medical specialists provided a sound basis for a jury verdict if the appellant's account of the fall were rejected. However, the misdirection could not be overlooked given the way the Crown had framed its address.

On the question of remedy, the Court declined to substitute an acquittal despite the appellant's age (65) and the time already served under the non-parole period. Given the gravity of the offence and the strength of the evidence overall, the Court ordered a new trial.

Orders Made

  • Appeal allowed; the appellant's conviction and sentence quashed
  • New trial ordered

Key Takeaways

  • Where a Crown prosecutor invites a jury to treat an accused's lies as evidence of consciousness of guilt, the trial judge must give a direction (commonly called a "Zoneff direction") warning the jury not to treat those lies as direct proof of the offence.
  • Failure to give a Zoneff direction in the appropriate circumstances constitutes a material error capable of vitiating a conviction, even where the underlying evidence against the accused is otherwise strong.
  • A conviction may be quashed on this basis even if the Court of Criminal Appeal considers that, absent the misdirection, a jury would have had a sound evidential basis for finding guilt.
  • The Court of Criminal Appeal confirmed that the remedy for such a trial miscarriage is not automatically an acquittal: the gravity of the offence and the strength of the overall evidence are relevant considerations when deciding whether to order a new trial.
  • Lies or inconsistent accounts may legitimately bear on an accused's credibility, but that use is distinct from treating them as affirmative proof of guilt, and the distinction must be drawn clearly for the jury.

Legislation and Cases Referenced

Legislation:
- Crimes Act (NSW), s 35(b)
- Criminal Appeal Rules, r 4

Cases:
- Zoneff v The Queen (2000) 200 CLR 234
- M v The Queen (1994) 181 CLR 487
- MFA v The Queen (2002-2003) 213 CLR 606
- R v Ray (2003) 57 NSWLR 616