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Court of Criminal Appeal 24 February 2010

Elmasri v R

[2010] NSWCCA 11

Theft & property
CRIMINAL LAW APPEAL AND NEW TRIAL MISDIRECTION AND NON DIRECTION

Citation: Elmasri v R [2010] NSWCCA 11
Court: New South Wales Court of Criminal Appeal
Date: 24 February 2010
Judge(s): McClellan CJ at CL, Price J, RA Hulme J

Background

The appellant was convicted by a jury of armed robbery following a trial in the District Court. He had been employed as a manager at a McDonalds restaurant in Enfield, and the Crown alleged he provided critical information to accomplices about the identity and vehicle of a security guard collecting the store's takings. The robbery netted approximately $28,000.

The prosecution relied on a combination of witness evidence, telephone intercept material, and CCTV footage. A key Crown witness, the alleged intermediary between the appellant and the robber, gave direct evidence implicating the appellant as the source of the identifying information passed to the robbery's organiser.

The appellant was sentenced to five years' imprisonment with a non-parole period of two and a half years. He appealed against his conviction only, raising two grounds both concerned with alleged failures by the trial judge to give jury directions.

  • Whether certain statements made by the appellant to investigating police, prior to his arrest, were capable of being construed as evidence of consciousness of guilt.
  • Whether the trial judge was required, even without a request from defence counsel, to direct the jury in accordance with Edwards v The Queen (1993) 178 CLR 193 about the dangers of consciousness of guilt reasoning.
  • Whether the failure to give such a direction, in the circumstances of this trial, constituted a miscarriage of justice.

Decision

The Court of Criminal Appeal, in reasons delivered by RA Hulme J (with McClellan CJ at CL and Price J agreeing), examined the statements the appellant made to police before his arrest. The appellant had made no admissions, but made various statements that the appellant's counsel argued were capable of being interpreted by the jury as reflecting a consciousness of guilt. The central question was whether those statements truly carried that potential and, if so, whether an Edwards direction was required.

The Court distinguished the present case from the line of authorities in which Edwards directions were found to be necessary. In those cases, including decisions from Queensland and Victoria, the prosecution had explicitly invited the jury to treat particular conduct or statements as demonstrating consciousness of guilt. In this case, the Court found that the prosecution had not made any such submission in relation to the relevant statements, which materially differentiated it from cases like R v SBB and R v ON, where prosecutors had expressly framed conduct as inconsistent with innocence.

The Court also applied the principle, drawn from cases including Zoneff v The Queen (2000) 200 CLR 234 and Dhanhoa v The Queen (2003) 217 CLR 1, that the obligation to give an unrequested Edwards direction depends on whether the evidence was actually used, or was likely to be used, by the jury in a consciousness of guilt way. Where the prosecution did not invite such reasoning and the evidence did not plainly carry that risk, the absence of a direction did not constitute a miscarriage.

The Court was not persuaded that either ground had merit. Leave to rely on each ground was refused and the appeal was dismissed.

Orders Made

  • Leave to rely on each ground of appeal refused.
  • Appeal dismissed.

Key Takeaways

  • An Edwards direction about consciousness of guilt reasoning is not automatically required simply because statements made by an accused to police could theoretically be construed as reflecting guilt; the obligation to give such a direction (unrequested) depends on whether the evidence was actually used or was at real risk of being used in that way by the jury.
  • The Court of Criminal Appeal confirmed that the absence of a defence request for a direction, while not determinative, is a relevant factor in assessing whether a trial miscarriage occurred.
  • A critical distinction runs through the case law: where a prosecutor explicitly frames conduct or statements as demonstrating consciousness of guilt, an Edwards direction becomes necessary even without a defence request; where no such submission is made, the obligation does not necessarily arise.
  • In dismissing the appeal, the Court distinguished several Queensland and Victorian authorities where Edwards directions had been required, on the basis that those cases involved overt prosecutorial invitations to engage in consciousness of guilt reasoning, which was absent here.
  • No miscarriage of justice was established where the trial judge did not give an unrequested direction and the Crown had not invited the impugned reasoning in its address to the jury.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Rules

Cases
- Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193
- Zoneff v The Queen [2000] HCA 28; (2000) 200 CLR 234
- Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1
- Regina v Smit & Ors [2004] NSWCCA 409
- Sanchez v R [2009] NSWCCA 171
- R v Ali [2002] VSCA 194; 135 A Crim R 426
- R v Juric [2002] VSCA 77; 129 A Crim R 408
- R v Nguyen [2001] VSCA 1; 118 A Crim R 479
- The Queen v MC; DPP v MC [2009] VSCA 122
- R v ON [2009] QCA 62
- R v SBB [2007] QCA 173; 175 A Crim R 449