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Court of Criminal Appeal 2 October 2008

Healey v R

[2008] NSWCCA 229

Sexual offences
CRIMINAL LAW WHERE NOT PART OF PROSECUTION CASE RISK OF MISUNDERSTANDING BY JURY

Citation: Healey v R [2008] NSWCCA 229
Court: NSW Court of Criminal Appeal
Date: 2 October 2008
Judge(s): Basten JA, Hislop J, Price J

Background

The appellant was convicted in the District Court on three counts of having homosexual intercourse with a male person aged between 10 and 18 years, contrary to s 78K of the Crimes Act 1900. The offences concerned acts of fellatio committed during neurological testing sessions at a clinic where the appellant worked as a neuro-nurse technician. The complainant was aged 13 to 14 at the time of the alleged offences in 1987 and did not report the matter to police until approximately two to three years before trial.

The trial was a retrial following a successful earlier appeal. The complainant's evidence was presented through an edited audio recording of testimony given at the first trial. The appellant denied the offences, and the trial proceeded essentially as a contest between the complainant's account and the appellant's.

At trial, the appellant gave evidence about a chance encounter with the complainant at a shopping mall and an exchange involving a music cassette. The trial judge directed the jury that the appellant's alleged lies about this encounter could be used as evidence of consciousness of guilt. That direction became the sole ground of appeal.

  • Whether the trial judge erred in directing the jury that the appellant's alleged lies could be used as evidence of a consciousness of guilt, where the prosecution had not relied upon those lies as part of its case.
  • Whether the direction adequately warned the jury against circular reasoning, specifically the risk of treating an alleged lie as direct proof of guilt rather than merely as corroborating other evidence.
  • Whether any resulting misdirection caused a miscarriage of justice such that the proviso (allowing a conviction to stand despite error) should not apply.

Decision

Price J, with Basten JA and Hislop J agreeing, allowed the appeal. The central problem was that the Crown had not, in the course of its case, relied on any alleged lies told by the appellant as evidencing consciousness of guilt. Directions of this kind are generally only appropriate where the prosecution positively advances such a case. Where a trial judge nonetheless gives such a direction, the risk of unfair prejudice to the accused is heightened.

The Court examined the principles in Zoneff v The Queen (2000) 200 CLR 234 and related authorities, which require that when a lies direction is given, the jury must be clearly warned against circular reasoning. That is, the jury must not reason from an alleged lie directly to guilt; rather, the lie can only be used to support other independent evidence of guilt once the jury is satisfied the lie was deliberate, related to a material issue, and was told out of a realised consciousness of guilt rather than for some innocent reason.

His Honour found that the trial judge's charge did not include any adequate warning against circular reasoning. Instead, it elevated the significance of the alleged lies so that they appeared to function as independent evidence of guilt. A suitably adapted direction in the terms identified in Zoneff was necessary and had not been given.

The Court declined to apply the proviso. The case was, at its core, the complainant's word against the appellant's. The Crown case carried limitations, including the lengthy delay before complaint. Given those circumstances, the misdirection was of a character that caused a miscarriage of justice, and the verdicts of guilty were not otherwise inevitable.

Orders Made

  • Appeal allowed.
  • Convictions quashed.

Key Takeaways

  • A consciousness-of-guilt direction based on alleged lies is generally inappropriate where the prosecution has not relied on those lies as part of its case at trial, and giving such a direction without that foundation creates a material risk of prejudice to the accused.
  • Under the principles in Zoneff v The Queen, any lies direction must include a clear and specific warning against circular reasoning: a jury cannot treat an alleged lie as independently proving guilt, but only as capable of supporting other evidence once the jury is satisfied the lie was deliberate, material, and told because of a guilty conscience.
  • Where a lies direction is given without an adequate anti-circular-reasoning warning, and the trial is essentially a contest of credibility between two witnesses, the misdirection is capable of causing a miscarriage of justice.
  • The proviso will not rescue a conviction where the misdirection enhanced the weight of evidence against the accused in a closely contested trial, and the guilty verdicts were not otherwise inevitable.
  • The Court of Criminal Appeal noted that the decision whether to retry the appellant remained with the Director of Public Prosecutions, having regard to the time already served and the history of two prior trials.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 78K
- Criminal Procedure Act 1986 (NSW), s 306E

Cases
- Edwards v The Queen (1993) 178 CLR 193
- R v Ray (2003) 57 NSWLR 616
- R v Sutton (1986) 5 NSWLR 697
- Zoneff v The Queen (2000) 200 CLR 234