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Court of Criminal Appeal 20 August 2003

R v Ray [2003] NSWCCA 227 revised - 29

[2003] NSWCCA 227

Also reported as 57 NSWLR 616
Homicide
CRIMINAL LAW MURDER DIRECTIONS TO JURY DIRECTIONS ABOUT LIES CONSCIOUSNESS OF GUILT APPLICATION TO DISCHARGE JURY

Citation: R v Ray [2003] NSWCCA 227 revised - 29/08/2003; reported at 57 NSWLR 616
Court: NSW Court of Criminal Appeal
Date: 20 August 2003
Judge(s): Wood CJ at CL, Simpson J, Adams J

Background

The appellant was convicted of the manslaughter of his mother, who died during the night of 10-11 November 1997 at her home. An autopsy revealed lethal levels of both alcohol and morphine in her system. The Crown's case was that the appellant had injected her intramuscularly with an excessive amount of morphine, and that this constituted an unlawful and dangerous act substantially contributing to her death.

The prosecution framed the unlawfulness in two alternative ways: either the injection was given without the deceased's consent (making it an assault), or it involved morphine supplied in breach of the Drug Misuse and Trafficking Act 1985. The appellant maintained throughout trial that his mother had most likely self-administered the morphine, either accidentally or deliberately, given her long history of depression and alcohol problems.

The jury returned a guilty verdict and the appellant was sentenced to seven years and six months imprisonment with a non-parole period of four years. He appealed both the conviction and the sentence.

  • Whether the trial judge's directions on lies were erroneous in law, in particular by giving an Edwards v The Queen direction (a direction that lies can evidence consciousness of guilt) when the Crown had not relied on the appellant's answers as evidence of guilt
  • Whether the summing-up contained additional misdirections that compounded any error in the lies directions
  • Whether the verdict was unreasonable or could not be supported on the evidence

Decision

On the lies directions: The trial judge gave an Edwards direction, which tells a jury it may treat lies as evidence of consciousness of guilt, without inviting counsel to address him on whether such a direction was appropriate. Critically, the Crown had not relied on the appellant's answers in his record of interview as evidence of consciousness of guilt. They were led only to challenge his credibility. The Court of Criminal Appeal held that, where the prosecution does not contend a lie is evidence of guilt, it is unnecessary and inappropriate to give an Edwards direction unless the judge apprehends a real danger the jury may apply that reasoning anyway (following Dhanhoa v The Queen [2003] HCA 40). Where such a direction is nonetheless given for the accused's protection, it must be framed clearly so the evidence is not elevated into a form of admission of guilt.

The direction as given failed to distinguish between lies going to credibility and lies evidencing consciousness of guilt. This left a real risk of miscarriage of justice and could only have significantly bolstered the prosecution case in a way the Crown itself had not sought.

On compounding misdirections: Several additional problems in the summing-up were identified. These included a direction capable of inviting the jury to reason that the appellant had an interest in lying to police (contrary to Robinson v The Queen), an inappropriate observation about the appellant's intoxication, a direction approaching the impermissible reasoning identified in Palmer v The Queen, and a comment from the trial judge that in his experience lies were told only for serious criminal purposes rather than innocuous ones. Taken together, these matters compounded the miscarriage of justice arising from the flawed lies directions.

On the unreasonable verdict ground: The Court applied the established test from M v The Queen and Jones v The Queen, asking whether a jury acting reasonably must have entertained a reasonable doubt as to guilt. The Court conducted its own independent assessment of the evidence and concluded this ground was not made out. The admissions carried very significant probative weight, particularly when viewed alongside items found in the appellant's bag, and the possibility that the deceased had self-administered a fatal dose was regarded as extremely unlikely.

Orders Made

  • Appeal allowed
  • Conviction quashed
  • New trial ordered

Key Takeaways

  • An Edwards v The Queen direction, telling a jury that lies may evidence consciousness of guilt, is unnecessary and inappropriate where the prosecution has not relied on the lies as evidence of guilt. It should only be given in that circumstance if the trial judge identifies a real risk the jury may apply that reasoning without prompting (confirming the approach in Dhanhoa v The Queen [2003] HCA 40).

  • Where an Edwards direction is given for the protection of an accused, it must be carefully framed so as not to inadvertently elevate the evidence into something resembling an admission of guilt, in a way that bolsters the Crown case beyond the use the prosecution itself sought to make of the material.

  • Multiple individually problematic directions can combine to produce a miscarriage of justice even if no single direction would be decisive on its own. The Court of Criminal Appeal found the cumulative effect here was fatal to the conviction.

  • A successful appeal on misdirection does not automatically mean the evidence was insufficient to support a conviction. The Court found the verdict was not unreasonable on the evidence, but still quashed the conviction and ordered a retrial because of the flawed directions.

  • Following the orders, the Court noted that whether a new trial actually proceeded remained a matter for the Director of Public Prosecutions, taking into account the deficiencies in the investigation, the analysis in the judgment, and the time the appellant had already served.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 5 and 13
- Evidence Act 1995 (NSW)

Cases:
- Dhanhoa v The Queen [2003] HCA 40
- Edwards v The Queen (1993) 178 CLR 193
- Jones v The Queen (1997) 191 CLR 439
- M v The Queen (1994) 181 CLR 487
- Morris v The Queen (1987) 163 CLR 454
- Osland v The Queen (1998) 197 CLR 316
- Palmer v The Queen (1998) 193 CLR 1
- Robinson v The Queen (1991) 180 CLR 531
- R v Heyde (1990) 20 NSWLR 234
- R v Sutton (1986) 5 NSWLR 697
- Zoneff v The Queen (2000) 200 CLR 234