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Court of Criminal Appeal 17 December 2008

Tiwary v R

[2008] NSWCCA 319

Homicide
CRIMINAL LAW APPEAL AND NEW TRIAL PARTICULAR GROUNDS MISDIRECTION AND NON DIRECTION CIRCUMSTANTIAL CASE

Citation: Tiwary v R [2008] NSWCCA 319
Court: NSW Court of Criminal Appeal
Date: 17 December 2008
Judge(s): McClellan CJ at CL, Blanch J, Hislop J

Background

The appellant, a Singaporean Army scholarship student at the University of New South Wales, was convicted after trial of two counts of murder. The victims were his flatmates, who were found dead at their shared Kensington residence on 15 September 2003. Both had died from injuries inflicted by a blunt instrument and a knife.

The Crown case was entirely circumstantial. Key Crown evidence included the purchase of an aluminium baseball bat two days before the killings, a post-it note said to confirm a financial motive, alleged lies told by the appellant to police, and the presence of blood on the appellant's feet. The appellant's account, given in a triple-zero call and to first responders, was that he had been asleep, was woken by screaming, and found his flatmates already dead.

The appellant was sentenced to 25 years for the first murder and life imprisonment for the second. He appealed against both conviction and sentence.

  • Whether the trial judge adequately directed the jury on the use of alleged lies as evidence of consciousness of guilt, applying the principles in Edwards v R
  • Whether the trial judge adequately directed the jury on the significance of blood found on the appellant's feet
  • Whether the verdicts were unreasonable or not supported by the evidence
  • Whether, if a new trial were ordered, it was appropriate for the Court to also consider the sentence appeal

Decision

Lies and consciousness of guilt: The Crown addressed the jury on a number of statements made by the appellant that it characterised as lies, arguing these demonstrated a consciousness of guilt. McClellan CJ at CL found that the trial judge's directions on this topic were inadequate. The directions failed to properly explain to the jury the conditions under which a lie can be treated as evidence of guilt, as required by the High Court's guidance in Edwards v R. That case requires, among other things, that a jury be instructed a lie only supports an inference of guilt if the jury is satisfied it was told deliberately and because the accused knew the truth would implicate him. The absence of adequate directions on this point caused the trial to miscarry.

Blood on the appellant's feet: The Crown relied on the presence of blood on the appellant's feet as circumstantially incriminating. The Court found the trial judge also failed to adequately direct the jury on this evidence, raising additional concerns about the fairness of the trial.

Unreasonable verdict: The Court declined to enter a verdict of acquittal. While the defence raised a number of questions about the Crown's circumstantial case, including why the appellant would have retained potentially incriminating items such as the bat receipt and post-it note, the Court concluded there remained evidence upon which a properly instructed jury could convict. The appropriate remedy was a new trial, not an acquittal.

Sentence appeal: Because a new trial was ordered, the Court held it was not appropriate to address the sentence appeal. Any sentencing issues would depend on facts found at the new trial.

Orders Made

  • Appeal upheld
  • Conviction quashed
  • New trial ordered

Key Takeaways

  • The Court of Criminal Appeal confirmed that where a trial judge fails to properly direct the jury on the use of lies as consciousness of guilt, in accordance with the principles in Edwards v R, that failure can cause a trial to miscarry and justify quashing the conviction.
  • A consciousness of guilt direction requires the jury to be told a lie only supports an inference of guilt if it was deliberately told and motivated by the accused's awareness that the truth would implicate them. A general direction is insufficient.
  • In a wholly circumstantial case, inadequate jury directions on individual items of circumstantial evidence, including forensic evidence such as blood, can compound the overall unfairness of the trial.
  • Declining to enter an acquittal does not mean the Crown's case was strong. The Court emphasised that the threshold for ordering a new trial (sufficient evidence for a properly instructed jury to convict) is distinct from the threshold for directing a verdict of acquittal.
  • Where a conviction is quashed and a new trial ordered, sentencing questions become premature and a sentence appeal will not be determined until the new trial is resolved.

Legislation and Cases Referenced

Cases:
- Edwards v R (1993) 178 CLR 193 (High Court of Australia) — principles governing jury directions on lies as consciousness of guilt
- Shepherd v R (1991) 170 CLR 573 (High Court of Australia) — principles relating to circumstantial evidence

Legislation: No specific legislation was cited in the available text.