Citation: R v Rogerson; R v McNamara (No 53) [2016] NSWSC 653
Court: Supreme Court of New South Wales
Date: 19 May 2016
Judge: Bellew J
Background
Two accused stood trial for murder, the Crown alleging they had killed the deceased in the course of a drug robbery. The trial was conducted before a jury, and the judgment deals with a discrete evidentiary question that arose mid-trial.
The Crown identified a series of statements made by each accused, either in evidence or to other witnesses, which it characterised as deliberate lies. It sought a direction instructing the jury that those lies were capable of being used as evidence of consciousness of guilt, not merely as material bearing on the accused's credibility.
Counsel for both accused accepted that the statements, if found to be deliberate lies, could be used to assess credibility. However, both counsel opposed any direction framing the lies as evidence of consciousness of guilt, arguing that the reasoning required to establish the falsity of the statements was inseparable from accepting the Crown case as a whole.
Legal Issues
- Whether the statements attributed to each accused were capable of amounting to lies that could support a consciousness of guilt direction under the principles in Edwards v R (1993) 178 CLR 193.
- Whether the process of establishing the falsity of those statements required impermissible circular reasoning by the jury.
- Whether section 136 of the Evidence Act 1995 (NSW) should operate to limit the use of any remaining statements to credit only.
Decision
Bellew J identified the established prerequisites for a consciousness of guilt direction derived from Edwards v R and confirmed in R v Lane [2011] NSWCCA 157. To attract such a direction, the statement must be false, deliberate, material, and clearly shown to be a lie by evidence or admission, with a motivation attributable to a realisation of guilt and fear of the truth.
The central difficulty in this case was that, for the great majority of statements relied upon by the Crown, the only route to establishing their falsity ran directly through an acceptance of the Crown case as a whole. Citing R v Zheng (1995) 83 A Crim R 572, Bellew J held that where the sole logical basis for finding a statement to be a lie is acceptance of the prosecution's overall case, the lie cannot then be recycled as independent evidence of consciousness of guilt. That would be circular reasoning.
A small number of statements were treated separately. One statement attributed to McNamara concerning use of a vehicle was acknowledged as arguably capable of meeting the consciousness of guilt test. However, because the overwhelming majority of the Crown's asserted lies in McNamara's case could go only to credit, giving a standalone direction on that one statement would risk confusing the jury. Section 136 of the Evidence Act was applied to limit its use to credit. A similar analysis applied to a single statement attributed to Rogerson, made to a witness named Farley, which stood apart from the other nine statements relied upon. Again, the risk of jury confusion from a separate direction on that one statement, while nine others went only to credit, warranted limiting its use under section 136.
The Crown's application for a consciousness of guilt direction was refused. The jury will instead be directed that any statements found to be deliberate lies may be used to assess the credibility of the accused who made them.
Orders Made
• The direction sought by the Crown will not be given
• The jury will be directed that if they find that any statement(s) relied upon by the Crown constitutes a lie, it can be used to assess the credibility of the particular accused who made such statement(s)
• Section 136 of the Evidence Act 1995 (NSW) applies to limit the use of evidence regarding the asserted lies in statements (4) and (9)
Key Takeaways
- A consciousness of guilt direction is not available where establishing the falsity of the accused's statements depends entirely on accepting the Crown's overall case, because that process involves impermissible circular reasoning.
- The prerequisites from Edwards v R, as applied in R v Lane and R v Zheng, require that a lie be independently established as false before it can serve as evidence of consciousness of guilt, not merely inferred from the same body of circumstantial evidence used to prove the charge.
- Where a statement is arguably capable of meeting the consciousness of guilt test, but the vast majority of the Crown's other asserted lies in the same case cannot, a separate direction on that one statement may create jury confusion sufficient to engage section 136 of the Evidence Act 1995 (NSW).
- Section 136 of the Evidence Act provides a mechanism to limit the use of evidence where its admission for a particular purpose carries a real risk of unfair prejudice or jury confusion, even where that use might otherwise be technically available.
- The distinction between lies going to credit and lies going to consciousness of guilt remains a significant and fact-specific inquiry, requiring careful case-by-case analysis of how the falsity of each statement is to be established.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), s 136
Cases
- Edwards v R [1993] HCA 63; (1993) 178 CLR 193
- R v Lane [2011] NSWCCA 157
- R v Zheng (1995) 83 A Crim R 572
- R v Lodhi [2006] NSWSC 672