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Court of Criminal Appeal 29 September 2023

MM v R

[2023] NSWCCA 236

Sexual offences

Citation: MM v R [2023] NSWCCA 236
Court: NSW Court of Criminal Appeal
Date: 29 September 2023
Judges: Adamson JA (with Price J and Davies J agreeing)

Background

The applicant was convicted by a jury of nine sexual offences against his daughter, committed between May 2016 and August 2018 when she was under 16. He was sentenced to 10 years' imprisonment with a non-parole period of six and a half years. The convictions and sentence were not challenged on their merits.

The appeal turned entirely on an episode at trial involving the applicant's reaction when his wife confronted him with their daughter's disclosure. The wife gave evidence that, upon being told her daughter had been touched by the applicant, she turned to him and asked "How could you?" He replied calmly, "I don't know what you're talking about," and then left the house when asked to do so. The wife described his reaction as "bizarre," likening it to being asked what he wanted on his toast.

In closing address, the Crown Prosecutor invited the jury to infer from that calm response that the applicant was guilty, suggesting an innocent person would have reacted differently. Defence counsel did not object. The trial judge raised the issue with both parties in the jury's absence, then directed the jury that people react differently to accusations and do not always behave predictably in such circumstances. The applicant argued on appeal that this response was inadequate and that a miscarriage of justice had occurred.

  • Whether the Crown Prosecutor's closing address improperly invited "consciousness of guilt" reasoning based on the applicant's demeanour and response to the allegations.
  • Whether the trial judge's direction to the jury was adequate in the circumstances, or whether a fuller direction was required.
  • The distinction between an Edwards direction (where conduct is used as an implied admission of guilt) and a Zoneff direction (cautioning a jury not to use conduct as consciousness of guilt evidence).
  • Whether any failure to give an adequate direction occasioned a miscarriage of justice.

Decision

Adamson JA drew a careful distinction between two categories of post-offence conduct evidence. The first category involves conduct used as an implied admission, which forms part of the Crown case and requires a direction in accordance with Edwards v The Queen (1993) 178 CLR 193. The second category involves conduct that may affect the jury's assessment of credibility or give rise to reasonable doubt, but which falls short of an implied admission. A Zoneff direction, cautioning the jury not to draw consciousness of guilt reasoning, is only required in this second category if there is a real risk the jury will misuse the evidence.

The Court accepted that the prosecutor's closing did, as a matter of substance, invite consciousness of guilt reasoning, despite not having framed it in those terms. Adamson JA noted that it is insufficient for a prosecutor to disclaim reliance on consciousness of guilt reasoning if, in substance, the submission invites exactly that reasoning. The Court observed, with some criticism, that the submission appeared to be a late "forensic flourish" by the prosecutor, having formed no part of the opening address.

Despite that criticism, the Court held that the trial judge's response was appropriate and adequate. The direction given reminded the jury that people react differently to accusations, without going further and warning them specifically not to use the applicant's calm demeanour as evidence of guilt. Adamson JA reasoned that giving a full Zoneff direction would actually have risked prejudicing the applicant, by drawing the jury's attention to the possibility that his calm response was inconsistent with innocence.

The Court also found it instructive that experienced defence counsel had not sought a Zoneff direction. Counsel could be taken to have assessed the risk of the jury engaging in consciousness of guilt reasoning as too low to warrant such a direction. In all the circumstances, no miscarriage of justice was established and the appeal was dismissed.

Orders Made

  • Leave granted pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).
  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A critical distinction exists between two types of post-offence conduct evidence: conduct tendered as an implied admission (requiring an Edwards direction) and conduct that may affect credibility or raise doubt (where a Zoneff direction is only needed if there is a real risk of misuse by the jury).
  • Where a prosecutor relies on an accused's words or conduct as amounting to consciousness of guilt, an Edwards direction is required regardless of how the submission is framed; substance, not form, governs the characterisation.
  • A Zoneff direction, cautioning the jury not to use evidence as consciousness of guilt, may itself prejudice an accused if it draws unnecessary attention to an innocent explanation appearing suspicious. The absence of such a direction does not automatically constitute a miscarriage of justice.
  • In dismissing the appeal, the Court of Criminal Appeal affirmed that a trial judge's obligation is to ensure fairness, and that a tailored direction addressing the specific evidence can satisfy that obligation without requiring a formulaic consciousness of guilt warning.
  • The Court signalled that prosecutors bear responsibility for identifying, before closing address, whether they intend to rely on conduct as consciousness of guilt evidence, and for ensuring their submissions do not cross into illegitimate territory.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(2), 66C(4)
- Criminal Appeal Act 1912 (NSW), s 5
- Evidence Act 1995 (NSW), s 90
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases:
- Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63
- Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28
- De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48
- Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40
- AB v R [2023] NSWCCA 165
- DC v R [2019] NSWCCA 234
- Harper v R [2022] NSWCCA 211
- McKey v R [2012] NSWCCA 1; (2012) 219 A Crim R 227
- Elmasri v R [2010] NSWCCA 11
- Woon v The Queen (1964) 109 CLR 529; [1964] HCA 23