Citation: Kuehne v R; Humphries M v R; Humphries A v R [2012] NSWCCA 270
Court: NSW Court of Criminal Appeal
Date: 14 December 2012
Judge(s): McClellan CJ at CL, Latham J, Fullerton J
Background
Three appellants were convicted in the District Court of breaking and entering a house armed with a pistol, with intent to intimidate, contrary to s 111(3) of the Crimes Act 1900. One appellant also faced a separate conviction for discharging the firearm in a manner likely to endanger safety under s 93G(1)(c). The incident arose from a confrontation at the home of two occupants following a series of altercations at a hotel, after which the appellants allegedly returned armed.
The appellants maintained they had been assaulted by the occupants and presented a unified account to police after a delay of several days. The Crown case was that the appellants broke in and used the firearm aggressively; the defence was that the appellants were the victims of serious assaults and had gone to the police to report those assaults, not to conceal any guilt.
A central issue at trial arose from the trial judge's decision to give the jury a "consciousness of guilt" direction based on the appellants' post-offence conduct, specifically their absence from their usual residences for several days, their joint presentation to police, and the similarity of their accounts to police.
Legal Issues
- Whether the trial judge's "consciousness of guilt" direction was supported by the nature of the evidence relied upon by the Crown
- Whether that direction caused a miscarriage of justice
- Whether the direction impermissibly infringed the appellants' right to silence (left unresolved by the Court)
- Whether, having quashed the convictions, the appropriate order was a retrial or verdicts of acquittal
Decision
The Court of Criminal Appeal unanimously held that the consciousness of guilt direction was not justified on the evidence and that it caused a fundamental miscarriage of justice. Fullerton J, with whom McClellan CJ at CL and Latham J agreed, found that the post-offence conduct relied upon by the Crown was incapable of constituting an implied admission against interest, which is a necessary prerequisite before such conduct can support a consciousness of guilt inference.
Latham J elaborated on the applicable principle, drawing from her earlier analysis in McKey v R. Post-offence conduct can only support a consciousness of guilt direction if it is capable of constituting an admission against interest, if it is connected with the offence, and if the circumstances indicate that guilt was the explanation for the conduct. Classic examples include flight, destruction of evidence, and attempts to influence witnesses. The appellants' conduct here did not meet that standard because it was, at its core, the very substance of their defence: they said they were the victims of assault and went to police to report that.
The direction was therefore doubly problematic. Rather than identifying conduct that undermined the defence, the direction effectively converted the defence itself into a circumstance pointing toward guilt, thereby depriving it of proper consideration by the jury. Both McClellan CJ at CL and Latham J reserved their opinions on the separate question of whether the direction also infringed the right to silence, as that issue did not need to be decided.
On the question of remedy, the Court declined to order retrials for any of the appellants. Two had completed or were about to complete their non-parole periods, making a retrial futile. The third, Mark Humphries, whose non-parole period ran to December 2014, was nonetheless not ordered to face retrial because his charges were intertwined with those of his co-appellants in a joint criminal enterprise, and retrying him alone would be contrary to the interests of justice. Fullerton J also noted, having reviewed the evidence herself, that she could not be satisfied of guilt beyond reasonable doubt on the evidence as it stood.
Orders Made
- Appeal upheld
- Convictions of each appellant quashed
- Verdicts of acquittal entered for each appellant
Key Takeaways
- Post-offence conduct does not automatically qualify as evidence of consciousness of guilt. It must be capable of constituting an admission against interest, it must be connected to the offence, and the circumstances must identify guilt as the explanation for the conduct.
- A consciousness of guilt direction is impermissible where the conduct relied upon is the substance of the accused's own defence. Directing the jury to draw an adverse inference from such conduct risks stripping the defence of fair consideration.
- The categories of post-offence conduct capable of supporting a consciousness of guilt direction are not closed, but the Court of Criminal Appeal reaffirmed that the conduct must meet conditions analogous to those applicable to lies told by an accused, as set out in Edwards v The Queen (1993) 178 CLR 193.
- Where quashing a conviction would render any retrial futile, whether because sentences have been substantially served or because the interests of justice favour finality, the Court of Criminal Appeal may enter verdicts of acquittal rather than order a new trial.
- The appropriate remedy following a conviction tainted by a misdirection remains a matter of discretion under s 8(1) of the Criminal Appeal Act 1912, assessed on the particular facts of each case.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 93G(1)(c), 111(3)
- Criminal Appeal Act 1912 (NSW), s 8(1)
- Evidence Act 1995 (NSW), s 165
Cases
- Edwards v The Queen (1993) 178 CLR 193
- Gilham v R [2012] NSWCCA 131
- Jones v R [2005] NSWCCA 443
- McKey v R [2012] NSWCCA 1
- Petty & Maiden v R [1991] HCA 34; 173 CLR 95
- R v Director of Serious Fraud Office; Ex parte Smith [1993] AC 1
- RPS v R [2000] HCA 3; 199 CLR 620
- Sanchez v R [2009] NSWCCA 171; 196 A Crim R 472
- Wilde v R [1988] HCA 6; 164 CLR 365