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11
Court of Criminal Appeal 23 May 2000

R v FOWLER [2000] NSWCCA 142 revised - 26

[2000] NSWCCA 142

Homicide
CRIMINAL LAW APPEALS APPEAL AGAINST CONVICTION MURDER REJECTION OF DEFENCE EVIDENCE DIRECTIONS TO JURY

Citation: R v Fowler [2000] NSWCCA 142
Court: NSW Court of Criminal Appeal
Date: 23 May 2000
Judges: Wood CJ at CL, Hulme J, Barr J

Background

The appellant was convicted of the murder of his brother-in-law following a retrial in the Supreme Court before Dowd J. The deceased had been shot three times outside a property at Cecil Park in January 1988 and was found dead by police that night. The prosecution built its case on circumstantial evidence, including the appellant's relationship to the deceased and evidence from several witnesses, some of whom were granted leave to be cross-examined by the Crown under s 38 of the Evidence Act 1995.

The appellant did not give sworn evidence at trial but made an unsworn statement from the dock. He appealed against his conviction on eight grounds, each targeting specific aspects of the trial judge's conduct of the proceedings, including evidentiary rulings and the content of jury directions.

  • Whether the trial judge erred in rejecting certain defence evidence, including photographic evidence and evidence of the deceased's distressed state
  • Whether the directions given about a witness with a prior conviction for interfering with a witness were sufficient
  • Whether the summing-up adequately addressed firearms identification, motive, the need for a McKinney direction under s 165 of the Evidence Act, and the accessory after the fact issue
  • Whether the jury should have been provided with a trial transcript under s 55C of the Jury Act 1977
  • Whether the directions concerning lies were adequate and legally correct
  • Whether it was appropriate to grant leave to cross-examine two Crown witnesses under s 38 of the Evidence Act, and whether the resulting evidence was correctly dealt with
  • Whether a Weissensteiner direction (permitting the jury to draw adverse inferences from an accused's silence) was appropriate in the circumstances
  • Whether the verdict was unsafe and unsatisfactory

Decision

Rejection of defence evidence and witness directions: The Court held that the photographic evidence and evidence of the deceased's earlier distressed state lacked probative value and were correctly excluded. The directions given in relation to the witness Bradley Walsh, who had prior convictions for interfering with a witness and had admitted lying to a detective, were found to be sufficient to alert the jury to the need for care.

Summing-up omissions: The direction on motive was correct in law but inadequate in its explanation. In a circumstantial case, the jury needed to understand that an established motive would support the Crown's case, but that a failure to establish motive would be neutral rather than exculpatory. Once the trial judge introduced a direction referring to "essential and non-essential circumstances," that direction either required further explanation or should have been withdrawn. No McKinney direction was needed because the Crown's case did not rely on the record of interview as a confession.

Lies direction: The direction on lies was found to be materially deficient. It failed to adequately reflect the principles in Edwards v The Queen (1993) 178 CLR 193, did not require the jury to be satisfied the lie was a deliberate falsehood, did not identify the material issue to which the lies related, risked reversing the onus of proof, and wrongly directed the jury that any lie told by the accused could be taken as evidence of a consciousness of guilt. This was a significant error.

Section 38 leave and the Weissensteiner direction: The Court confirmed that s 38 of the Evidence Act should be given its full effect and is not confined to situations where a party is surprised by unfavourable evidence. However, once leave was granted and the witness evidence was assessed as likely to be neutral, ss 135 and 137 required consideration, and the jury should have been directed that any lies told by those witnesses went only to credibility. No such direction was given, risking a miscarriage of justice. The Weissensteiner direction was also found to be inappropriate and, in any event, deficient. That direction applies only in exceptional cases where an accused's silence on matters within their knowledge permits an adverse inference. Here, the appellant had addressed several relevant matters in his unsworn statement, other matters could not have risen above a denial in any event, and there were tactical reasons, including the risk of self-incrimination, for not giving sworn evidence. The trial judge's reference to the absence of a denial "on oath or in the dock statement" was also identified as an expression to be avoided. Despite these errors, the Court found the evidence against the appellant amounted to a strong circumstantial case and did not support an outright acquittal. A new trial was ordered instead.

Orders Made

  • Appeal allowed
  • Conviction and sentence quashed
  • New trial ordered

Key Takeaways

  • A lies direction must faithfully reflect the principles in Edwards v The Queen: it must require the jury to be satisfied the accused told a deliberate falsehood, identify the material issue to which the lie relates, and must not be framed in a way that reverses the onus of proof or treats any lie as automatically demonstrating consciousness of guilt.
  • The Weissensteiner direction permitting adverse inferences from an accused's silence is confined to exceptional cases. It is not appropriate where the accused has addressed relevant matters in an unsworn statement, where evidence could not have risen above a denial, or where there are legitimate tactical reasons for not giving sworn evidence.
  • Under the Evidence Act 1995, s 38 is not limited to situations where a party calling a witness is unexpectedly confronted by unfavourable or inconsistent evidence. The Court confirmed the section operates according to its full terms as explained in Souleyman and Gilbert Adam.
  • Where Crown witnesses are cross-examined under s 38 leave and their evidence is assessed as likely neutral, the trial judge must direct the jury that any lies told by those witnesses are relevant only to credibility and cannot be used to support the Crown case.
  • In circumstantial murder cases, a motive direction should make clear to the jury that proof of motive supports the Crown's case, but that failure to prove motive is neutral rather than raising a positive inference in the accused's favour.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 20, 38, 60, 90, 128, 135, 137, 165, 192
- Crimes Act 1900 (NSW), s 407
- Jury Act 1977 (NSW), s 55C
- Criminal Appeal Act 1912 (NSW), s 6(1)

Cases:
- Edwards v The Queen (1993) 178 CLR 193
- Weissensteiner v R (1993) 178 CLR 217
- RPS v R (2000) 74 ALJR 449
- Penney (1998) 155 ALR 605
- Plevac (1999) NSW CCA 351
- Souleyman (1996) 40 NSWLR 712
- Gilbert Adam 47 NSWLR 267
- Blewitt (1988) 62 ALJR 503
- Jones v Dunkel (1958) 75 WN (NSW) 358
- Apostilides (1984) 154 CLR 563
- Whitehorn (1983) 152 CLR 657
- Kneebone (1999) NSWCCA 279
- OGD (1997) 45 NSWLR 744
- Heyde (1990) 20 NSWLR 234
- Qian Li Zhen (1995) 83 A Crim R 575
- Fleming (1998) 158 ALR 379
- Giam (1999) NSW CCA 53