Appeal Dismissed: Robbery Case Conviction Upheld

The Court of Criminal Appeal dismissed an appeal against conviction and sentence severity in a robbery case. The appellant argued that the trial judge's directions on the burden and standard of proof were flawed, but the Court found the directions adequate and upheld the conviction and sentence.

Reported Decision : (2002) 130 A Crim R [ADDRESS] of Criminal Appeal

CITATION : [NAME] v [NAME] [2002] NSWCCA 147 FILE NUMBER(S) : CCA 60589/01 HEARING DATE(S) : 29/4/02 JUDGMENT DATE : 29 April 2002

PARTIES : [NAME] (Appellant) [NAME] (Respondent) JUDGMENT OF : Meagher JA at 1; [NAME] at 67; Bell J at 2

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/21/0122 LOWER COURT JUDICIAL Naughton DCJ OFFICER :

COUNSEL : [redacted] P G Ingram ([NAME]) SOLICITORS : [redacted] S E O'Connor

LEGISLATION CITED : Crimes Act 1900 [NAME] v The Queen (1994) 111 DLR (4th) 48 [NAME] v [NAME] (1913) 17 CLR 570 Dawson v The Queen (1961) 106 CLR 1 [NAME] v The Queen (1993) 178 CLR 193 [NAME] v The Queen (1971) 126 CLR 28 CASES CITED: La [NAME] v The Queen (1976) 136 CLR 62 [NAME] v Adam [1999] NSWCCA 189 [NAME] v Power (1996) 87 A Crim R 407 The Queen v Bridgman (1980) 24 SASR 278 [NAME] v The Queen (1960) 102 CLR 584 [NAME] v [NAME] 550 F.2d 1036 (5th sic., 1977) [NAME] v The Queen (1981) 55 ALJR 726

DECISION : Appeal dismissed

IN THE COURT OF CRIMINAL APPEAL 60589/01

MEAGHER JA [NAME] J

29 April 2002 [NAME] v [NAME] Judgment 1 MEAGHER JA: [ADDRESS] is now in a position to give judgment. Bell J will give the first judgment. 2 BELL J: On 18 June 2001 the appellant was arraigned before the District Court at Parramatta on an indictment charging him with two counts arising out of the same incident. The first count charged that on 10 July 1999 at Auburn he assaulted [NAME] while armed with an offensive weapon (a handgun) with intent to rob him. The second count charged that on the same date and place being in company with [NAME] and a person unknown he robbed [NAME] of certain monies the property of [NAME]. Both charges were brought under s 97(1) of the Crimes Act 1900 ("the Act"). The appellant entered a plea of not guilty to each count. A [NAME] was empanelled and he stood his trial. On 22 June the [NAME] returned its verdicts. The appellant was acquitted of the offence charged in count one and convicted of the offence charged in count two. 3 The maximum penalty for the offence of robbery in company is one of twenty years imprisonment. On 23 August 2001 the appellant was sentenced to a term of three years imprisonment to commence on 22 June 2001 and expire on 21 June 2004. A non-parole period of eighteen months was specified. The first date upon which the appellant will be eligible for consideration of release to parole is 21 December 2002. 4 By his notice of appeal, dated 28 August 2001, the appellant signified his intention of appealing both against his conviction and of seeking leave to appeal against the severity of the sentence imposed upon him. By notice dated 22 March 2001 the appellant abandoned the application for leave to appeal against the severity of sentence. 5 [NAME] owned a butchery, the "[NAME]" at [ADDRESS], Auburn. His wife, [NAME], worked with him at the shop. On Saturday 10 July 1999 [NAME] closed the shop at about 6:30 pm. [NAME] counted the takings and placed them in her backpack. The sum amounted to approximately $35,000. 6 At about 7:30 pm [NAME] and [NAME] walked from the rear of the shop towards their car. [NAME] was wearing the backpack. As they reached the car which was parked in the rear yard [NAME] realised that he needed to take some goods back to the shop. [NAME] waited by the car while he returned to the shop. 7 Three men entered the rear yard of the premises. One of them, a man referred to by the appellant as "[NAME]", took hold of [NAME]'s backpack and attempted to pull it from her shoulder. The two other men went towards the back of the shop. [NAME] held onto the backpack and screamed. She was dragged into the lane at the rear of the shop ([ADDRESS]) by the man, [NAME]. The straps of the backpack gave way and [NAME] took hold of it and ran off down the lane. 8 [NAME] heard his wife screaming as he emerged from the back door of the shop. He was confronted by two men of Asian appearance. He was not able to see his wife, but he could hear her screaming. One of the men pointed a gun at him. [NAME] pushed the gun away and ran to the back lane. It was the [NAME] case that the appellant was one of the two young Asian men who confronted [NAME] with the gun. As [NAME] entered the back lane he saw another man push his wife to the ground, taking her bag. The two men who had confronted [NAME] ran past him and joined up with the first man. [NAME] gave chase but one of the men turned around and pointed a gun at them. They then lost sight of the three men. 9 The man described by the appellant as [NAME] was not apprehended. 10 The duty manager at the [NAME] heard [NAME]'s screams. He looked out one of the windows at the Hotel and saw a woman who appeared to be distressed across the road near [ADDRESS]. He saw three or four men entering a vacant lot through a hole in the fence. He alerted police in a nearby vehicle to the incident. They promptly attended the scene and spoke with [NAME] and [NAME]. Arrangements were made for the Dog Squad to attend and to search the vacant lot. [NAME] and his brother were apprehended in the lot. 11 [NAME] participated in an electronically recorded interview conducted by Detective Goddard ("the interview"). In the course of the interview he said that he was acquainted with a man named [NAME]. The two of them used to drink beers together at a pub. He said that [NAME] asked him for assistance in recovering the sum of about $700 that he was owed by [NAME] for whom he had worked. [NAME] promised to pay the appellant $200 for his help in this regard. On the afternoon of 10 [NAME] telephoned the appellant and said, "tonight, I want to bash the shop owner". The appellant said that he had agreed to assist him. The appellant, his brother, [NAME], and [NAME] drove to the [NAME]. The appellant and his brother approached [NAME] asking her about her husband. She began to yell. The appellant took hold of her and tried to talk to her. The appellant said that his brother told him that [NAME] had grabbed the handbag. He saw [NAME] pull out a gun, point it and try to pull the trigger. He held [NAME]'s arm asking him to tell his wife to stop screaming. The appellant, his brother and [NAME] then ran away. In the interview the appellant said that he did not know that [NAME] was going to rob anyone. He did not know that [NAME] had a gun until he produced it that night. He had not taken hold of the backpack, nor did he have any knowledge of the whereabouts of the money. 12 The appellant did not give evidence at his trial. 13 The man [NAME] was not apprehended. The appellant's brother died of leukaemia prior to the proceedings coming on for trial. 14 The appeal against conviction is advanced upon two grounds both of which complain of directions given by the trial judge during the course of the summing up.

Ground One – His Honour erred in directing the [NAME] on the burden and standard of proof 15 The direction complained of is as follows: "The onus and standard of proof is an important matter for you to consider. The [NAME] must prove the essential elements of the alleged offences, and it must do so to the standard, that means to the degree, of beyond reasonable doubt. The standard, or degree, of proof is not beyond any doubt. It is beyond reasonable doubt. If you have a reasonable doubt about the guilt of [NAME] in respect of either count you must find him not guilty on that count. If you are satisfied beyond reasonable doubt about the guilt of [NAME] on either count you must find him guilty on that count. [NAME] does not have to prove anything. He is presumed innocent till proved guilty. That means proof beyond reasonable doubt of the essential elements of the alleged offences. Your task is not one of simply making a choice between the evidence of [NAME] on the one hand and what [NAME] told the police on the other hand. This is not a case of [NAME] versus [NAME], as in a civil case where monetary damages are claimed and where the case is decided on the balance of probabilities. This is a case of the Queen, that is why we use the word "[NAME]" the Latin for Queen, abbreviated to R, versus [NAME] brought on behalf of the community or the public, or society if you prefer, for the purpose of upholding the criminal law. It is a case of whether you, the [NAME], as the representatives of society, are satisfied that the [NAME] has proved its case against [NAME] beyond reasonable doubt notwithstanding, or despite, what [NAME] has said to the police" (SU at 5). 16 The appellant's counsel objected to the form of this direction at the conclusion of the summing up. The transcript records the following exchange on this topic: "[NAME]: Your Honour, there's one matter, well there are a number of matters but the first matter I submit with respect requires a discharge of the [NAME] and that is this. Your Honour told the [NAME] early in your summing up about the onus and standard of proof. Your Honour referred to the essential ingredients or elements being proved beyond reasonable doubt. Your Honour then said that the degree of proof required is not beyond any doubt by way of, in my submission, contrasting that with beyond any reasonable doubt. That I submit with respect is a direction which should not be given. The High Court in the case of R v [NAME] , (1972) 46 ALJR 545, is authority for the proposition that it is now accepted in New South Wales that generally no attempt ought to be made to explain 'beyond reasonable doubt'. This phrase contains three ordinary every day words which should be given their ordinary every day meaning. Your Honour in my respectful submission has contravened that principle by telling the [NAME] what 'beyond reasonable doubt' does not mean by way of in effect clarification of its meaning. So that is my submission. That is the first … HIS HONOUR: I do not need to hear you on that, Mr [NAME], I reject that submission" (SU at 39). 17 It is to be noted that at the conclusion of his application for redirections [NAME] returned to this topic: "[NAME]: Your Honour could I say this and I will be very brief. If your Honour is against me about discharging the [NAME] on the first point … HIS HONOUR: I have already said I am against you … [NAME]: I would ask your Honour … HIS HONOUR: There is no 'if' [NAME], it has already occurred. [NAME]: I would ask your Honour in the alternative to withdraw the direction and to tell the [NAME] that the meaning of the words is a common, ordinary, everyday expression. HIS HONOUR: No I will not do that. I do not think it is necessary" (SU at 41). 18 [NAME], who appears on the appellant's behalf, contends that the direction was flawed for two related reasons. Firstly the directions departed from the traditional formula in that it contained an inappropriate elaboration on the meaning of the phrase "beyond reasonable doubt". Secondly, it is said to have been confusing such as to have had the real potential to mislead the [NAME]. This latter challenge takes up the concluding portion of the direction in which his Honour observed: "It is a case of whether you the [NAME], as representatives of the society, are satisfied that the [NAME] has proved its case against [NAME] beyond reasonable doubt notwithstanding or despite what [NAME] said to the police." 19 [NAME] submitted that this direction conveyed that the [NAME] should disregard altogether "what [NAME] said to the police" in deciding whether the [NAME] had proved its case. The interview was a crucial piece of evidence in the [NAME] case. It contained both exculpatory and inculpatory statements. The [NAME] was obliged to assess the contents of the interview. 20 The first aspect of [NAME]'s challenge is the matter to which trial counsel directed the judge's attention, namely the direction: "the standard, or degree, or proof is not beyond any doubt. It is beyond reasonable doubt" (SU4). 21 [NAME] complains that this statement constituted a misdirection in that it departed from the traditional formula and amounted to an attempt to explain or qualify the standard of proof. It was said to suffer the vice identified by the High Court in [NAME] v The Queen (1971) 126 CLR 28 in that it attempted to explain the content of the standard of proof partly in terms of that which did not constitute a reasonable doubt. 22 In [NAME] the Court reviewed the authorities dealing with the directions to be given in a criminal trial upon the onus and standard of proof. After citing passages from Dawson v The Queen (1961) 106 CLR 1, [NAME] v The Queen (1960) 102 CLR 584, [NAME] v [NAME] (1913) 17 CLR 570, the Court observed: "Those quotations are but some of many admonitions to judges presiding over criminal trials to adhere to and not to attempt needless explanations of the classical statement of the nature of the onus of proof resting on the [NAME]." 23 The direction complained of in [NAME] was in these terms: "Now I take you now to the burden of proof. The burden of proof, as you well know, is on the [NAME], and it is on the [NAME] in respect of every issue in respect of every element of the crime. Well now, before you say that you are satisfied for the purposes of a verdict about any issue, you of course have to reach a certain degree of satisfaction in your mind, and what degree of satisfaction must be reached? The answer is that you must be satisfied beyond reasonable doubt, and that is a time honoured phrase and is usually thought to do very good work in seeing that nobody is convicted of a serious crime unless the court that tries him is satisfied of his guilt beyond reasonable doubt. And you may say, 'well, how do I know when I have got to a stage of being satisfied about something beyond reasonable doubt?' and the answer to that is that it is when you have reached the stage that you either have no doubt at all, because if you have got no doubts at all you must have got rid of all reasonable doubts; or if there is something nagging in the back of your mind which makes you hesitate as to whether you are satisfied beyond reasonable doubt, you have got to try and take it out and identify this thing which is causing the hesitation, causing the doubt if you like, and you'll have a look at it and you try to assess it and you say to yourself is this doubt that is bothering me, does it proceed from reason; is it a rational doubt; is it something which raises a really sensible doubt; or is it a fantastic sort of doubt; is it something which arises from some prejudice that I may have; some quite unreasonable fear that I might go wrong; some perhaps reluctance to make an unpleasant finding. Well if it is one of those doubts – merely one of those doubts, then of course it cannot be described as reasonable because it does not come from reason; it comes from something which is emotional or irrational or – at any rate it is not based upon reason, and if you have a look at what is bothering you and you decide that it does not proceed from something which is not reason but something fantastic or rising out of prejudice or one of these other things, then you should say to yourself, 'the only doubt I've got is one which is not based on reason, I have therefore got rid of all doubts which are not based in reason, and the result of that is that I am satisfied beyond reasonable doubt, because the only things that are worrying me are things which I now assess after looking at them as not based in reason.' And of course it is a common sense point of view before you find anybody guilty of a crime like this, you do need to feel comfortable about it; you need to feel, 'very well, I've considered everything and I'm really satisfied. I am satisfied beyond reasonable doubt; I have given it the best consideration I can.' There it is. And then you go away from the Court and you are comfortable, and that is the way you ought to be. You might not enjoy it, but you will nevertheless be comfortable, and unless you can make a decision of guilt and feel comfortable that it is the right decision, well then you do not make it" (at 30-31). [ADDRESS] found this direction to be fundamentally erroneous for the reason: "A reasonable doubt is a doubt which the particular [NAME] entertain in the circumstances. Jurymen themselves set the standard of what is reasonable in the circumstances. It is that ability which is attributed to them which is one of the virtues of our mode of trial: to their task of deciding facts they bring to bear their experience and judgment. They are both unaccustomed and not required to submit their processes of mind to objective analysis proposed in the language of the judge in this case. 'It is not their task to analyse their own mental processes'; [NAME] v The Queen . A reasonable doubt which a [NAME] may entertain is not to be confined to a 'rational doubt', or a 'doubt founded on reason' in the analytical sense or by such detailed processes as those proposed by the passage we have quoted from the summing up. Yet that is what they were directed to do in this case (at 32-33)." 25 It was said in [NAME] that if during the course of the trial counsel for [NAME] laboured the emphasis on the onus of proof such as to suggest possibilities which in truth were fantastic or unreal as affording a basis for proof beyond reasonable doubt that the presiding judge should restore the balance. In such a case it was said that the judge might properly instruct the [NAME] that fantastic and unreal possibilities ought not to be regarded by them as the source of reasonable doubt (at 33). 26 There is no suggestion in the present case that [NAME], on the appellant's behalf, invited the [NAME] to consider fantastic possibilities as affording the basis for a reasonable doubt. Indeed, at an early stage in the summing up the trial judge commended [NAME] and the [NAME] as having delivered "refreshing concise, but relevant, and pointed addresses" (SU4). 27 While the direction complained of in the present case may not be as significant a departure from the traditional formula as that in [NAME], it is contended that nonetheless it invited the [NAME] to engage in an analytic exercise dissecting such doubts as they may experience. 28 In La [NAME] v The Queen (1976) 136 CLR 62 Barwick CJ at 71 observed: "[ADDRESS] has clearly laid down that it is both unnecessary and unwise for a trial judge to attempt explanatory glosses on the classical and, as I think, popularly understood formula which expresses the extent of the onus resting on the [NAME] in its attempt to establish the commission of a crime; see [NAME] v The Queen ." 29 It would have been preferable for the trial judge in this case not to have given the [NAME] a direction, in terms, that the standard of proof is not beyond any doubt. The [NAME] accepted as much. 30 In written submissions [NAME] submitted with respect to the concluding paragraph of the direction on the onus and standard of proof: " 'It is a case of whether you the [NAME], as representatives of the society, are satisfied that the [NAME] has proved its case against [NAME] beyond reasonable doubt notwithstanding or despite what [NAME] said to the police' . That direction is itself confusing because it is not clear how the [NAME] should treat what the appellant told the police in deciding whether the [NAME] has proved its case. Furthermore, the direction misled or had the potential to mislead the [NAME] because it gave the impression that the [NAME] should disregard altogether 'what [NAME] said to the police' in deciding whether the [NAME] has proved its case. The appellant's record of interview with the police was a crucial piece of evidence in deciding whether the [NAME] has proved its case. It contained both exculpatory and inculpatory statements. The [NAME] was obliged to assess the whole of that record of interview in determining whether the [NAME] had proved its case beyond reasonable doubt. His Honour's direction conveyed the impression that they should disregard or put to one side that vital piece of evidence in reaching their verdict." 31 It is true that the contents of the interview contained material of critical significance in the [NAME] case, together with material exculpatory of him. To the extent his Honour's directions conveyed that the [NAME] were to determine whether the [NAME] had proved its case beyond reasonable doubt by putting to one side the contents of the interview, they were directions in one respect favourable to the appellant and adverse to the [NAME]. The [NAME] relied on admissions in the interview for proof that the appellant was one of the three men who assaulted [NAME] that night. Equally, in the interview the appellant put forward his account that he was not involved in any robbery of [NAME] and that he had not been a party to any agreement to rob [NAME]. It was necessary for the [NAME] to negative the possibility that the appellant attended the scene in company with [NAME] and his brother to assist [NAME] to recover a debt owed to him. Elsewhere in the course of the summing up his Honour made this much plain to the [NAME]. I do not consider that passage complained of as such as to confuse or mislead the [NAME]. 32 It is necessary to view the directions concerning the onus and standard of proof in the context of the summing up as a whole. In [NAME] v The Queen (1981) 55 ALJR 726 Gibbs CJ (in a judgment with which Stephen, Mason and Wilson JJ agreed) said at 728: "[ADDRESS] has on a number of occasions asserted that in all criminal cases it is the duty of the trial judge to make the [NAME] understand that a criminal charge has to be established by the prosecution beyond reasonable doubt. The direction must be 'plainly given': [NAME] v The Queen ; [NAME] v The Queen ." 33 In this case the trial judge in the course of his opening remarks in the summing up observed: "Your job is to decide whether, on the evidence before you, the [NAME] has proved the essential elements of the alleged offences beyond reasonable doubt. I shall shortly direct you as to what are the essential elements of the alleged offences" (SU3). 34 Shortly thereafter his Honour went on to give the directions concerning the onus and standard of proof which are the subject of complaint and which I have extracted above. 35 His Honour then went on to give directions concerning the ingredients of each of the offence charged in the indictment. Dealing with count one his Honour observed: "If the [NAME] proves all of the essential elements of the alleged offence beyond reasonable doubt on that count you must find [NAME] guilty on that count. If the [NAME] does not prove all of the essential elements of the alleged offence beyond reasonable doubt on that count you must find [NAME] not guilty on that count" (SU5). 36 In the course of directing the [NAME] on the elements of the offence charged in count two (the offence upon which the [NAME] found the appellant guilty) his Honour said : "The [NAME] must prove beyond reasonable doubt that what was intended by [NAME] was to steal money from [NAME]. … To prove that [NAME] intended to steal money from [NAME] the [NAME] must prove beyond reasonable doubt the following five things …" 37 His Honour next moved to directions upon the concept of a joint criminal enterprise. He directed the [NAME]: "[NAME] is guilty of the alleged crime in count one if it is proved beyond reasonable doubt that he was part of a joint enterprise to commit it".

His Honour went on to give a further series of directions on the topic of joint criminal enterprise. 38 His Honour gave a circumstantial evidence direction. Whether it was necessary to do so in the context of the issues raised by this trial has not been the subject of submissions. In the course of giving this direction he observed: "Before you can find [NAME] guilty having regard to circumstantial evidence you must be satisfied that such a finding is not only reasonable but that it is the only reasonable finding to make, that is, the only reasonable conclusion to draw. It follows that if there is another explanation and finding which is reasonably open on the evidence, that is, if there is another reasonable explanation which in your opinion is consistent with innocence of [NAME], you must find him not guilty. [NAME] relies on his statement that he was really going there as a contractor for [NAME], in consideration of $200, to bash or talk to [NAME] for was owed to [NAME] (sic) but he said he was duped in that regard. If you believe that is a reasonable possibility you would not be able to find [NAME] guilty on count one" (SU18-19). 39 After summarising the submissions relating to count one his Honour directed the [NAME]: "Moving to count two and the essential elements of count two. This is robbery in company and the victim was [NAME]. If the [NAME] proves all of the essential elements of the alleged offence in count two beyond reasonable doubt you must find that [NAME] guilty. You cannot shirk your duty. You have got to do your duty. If that is the finding then you must find him guilty. Similarly, if the [NAME] has not proved all of the essential elements of the alleged offence to your satisfaction, beyond reasonable doubt, you must find [NAME] not guilty. Again you must not shirk your duty. You have got to perform it. You are the judges of the facts. You have got to act like judges" (SU25). 40 In summarising the defence case his Honour commenced by observing: "As to the defence case, ladies and gentlemen, [NAME] emphasised the presumption of innocence and the nature of the [NAME]'s task in this case. That is, to prove its case beyond reasonable doubt against [NAME], despite, or notwithstanding, what he told the police in his interview on the early morning of Sunday 11 July 1999. That is contained in Exhibits "G" and "H". You saw the video and you have no doubt by now read the transcript of that interview" (SU29).

His Honour reminded the [NAME] of the account given by the appellant in the course of the interview: "[NAME] told you that if you find that was a reasonable possibility you cannot be satisfied beyond reasonable doubt that [NAME] is guilty of either of the charges against him and that is so. In his final address [NAME] made these points, as I noted them. He said that at the end of your deliberations you should find a reasonable doubt as to whether [NAME] is guilty. He submitted that you must be satisfied beyond reasonable doubt before you can find [NAME] guilty. I have already given you directions about that. [NAME] said that the central issue is whether [NAME] was a knowing participant with his brother in the robbery. If you have a reasonable doubt about that you must find him not guilty. I have directed you that that is so."

Towards the conclusion of the summing up his Honour directed the [NAME]: "No adverse inference can be drawn against [NAME] because he chose not to give evidence on oath in the witness box. [NAME] does not have to prove anything. He is presumed to be innocent until such time, if at all, as the [NAME] proves beyond reasonable doubt that he is guilty" (SU35). 41 Having regard to the summing-up as a whole, I am of the view that the [NAME] were left in no doubt as to the onus and standard of proof. In my view ground one has not been made good.

Ground two – his Honour erred in his directions to the [NAME] about the appellant's flight 42 Prior to the commencement of the summing up there was discussion as to the content of the directions to be given. The [NAME] invited the trial judge to give a direction on flight as evidencing consciousness of guilt. [NAME] submitted that no such direction should be given. He contended that the [NAME] could only rely on flight as an admission if it were possible to reason from the fact of flight to guilt of the offences charged in the indictment. It was the appellant's case that he had gone to the premises in company with the co-offenders to assault [NAME] in order to recover the debt owed to [NAME]. He was to be paid $200 for his assistance. His flight was equally referable to his awareness that this was wrongful conduct. 43 His Honour heard further submissions concerning the directions which it was proposed he should give and then returned to the question of flight. After a short adjournment he referred counsel to the decision of the [ADDRESS] of Criminal Appeal in [NAME] v Power (1996) 87 A Crim R 407. He indicated an intention to give a direction on flight to which [NAME] observed, "my position is that I oppose that" (T21/6/01 at 8). 44 The direction which was given on the topic of flight is as follows: "The direction of law I give you is that if you are satisfied beyond reasonable doubt that [NAME] fled the scene of the alleged assault and alleged robbery you may draw an inference against him that he acted in that way because he believed that he was a knowing and willing participant in either or both of the two alleged offences. But before you can draw that inference you must be satisfied beyond reasonable doubt that there is no other reasonable explanation for the fleeing and hiding, in all of the circumstances. You need to remember the conduct of this sort, that is fleeing a crime scene, may sometimes be explained in other ways. For example, simply as a result of panic or fear of the police or others, a desire to protect another person or other persons, or to avoid a consequence unrelated to the alleged offence or offences. [NAME] told the police that he ran away because [NAME] told him to do so. That is in Exhibit "H", the typed transcript of the police interview, at questions and answers 349 and following. And further, that he hid in the park, and I will quote from the record of interview (question and answers 375 to 376 Exhibit H). He said that he hid in what he referred to as the park "because I saw someone put the light in, you know, to the park, so we lied down'. If you are satisfied that [NAME] was motivated to flee and hide by a consciousness of guilt then before that can assist the [NAME] you must be further satisfied that what was in his mind was guilt of one or both of the particular offences charged and not some other offence. If you are so satisfied you are entitled to use that finding in aid of the other evidence, the circumstances of the case, that is in the [NAME] case as pointing to the guilt of [NAME]. But standing alone it could not prove guilt. It is just one of the circumstances to take into account. [NAME] denied in his police interview that he participated in any plan to rob [NAME] and said that neither he nor his brother had a gun. He said that he had gone to the [NAME] premises to "bash up" or "talk to" the [NAME] on behalf of [NAME]. He said that he was duped by [NAME] who unbeknown to himself had a gun, and that without his knowing and willing participation, [NAME], alone, robbed [NAME]. That is different from what [NAME] has been charged with and that is a matter for you yourselves to weigh up and evaluate (SU23-25). 45 The trial judge then went on to remind the [NAME] of the account the appellant gave in the interview that he had gone to the premises "to bash up" the [NAME] on behalf of [NAME]. 46 The complaint advanced by this ground is that the evidence of flight was not capable of supporting an inference of the appellant's guilt of the offences charged in the indictment. 47 [NAME] referred us to the decision of the Supreme Court of Canada in [NAME] v The Queen (1994) 111 DLR (4th)

48. In that case the appellant was charged with an aggravated assault. He was said to have stabbed the victim in the course of an altercation. The appellant admitted to punching the victim but claimed that a third person had approached the two of them during the altercation. This third person was said to have stabbed the victim. The trial judge gave the [NAME] a direction on flight as evidencing consciousness of guilt. She went on to draw attention to the circumstance that people may flee the scene of a crime out of panic, even if entirely innocent. [ADDRESS] in [NAME] referred to the judgment in [NAME] v [NAME] 550 F.2d 1036 (1977): "The test articulated in [NAME] provides helpful guidance on the inferences that may be drawn from evidence of an [NAME]'s flight (or other possible indicia of consciousness of guilt, such as lying). Such evidence can serve the function of indicating consciousness of guilt only if it relates to a particular offence. Consequently where an [NAME]'s conduct may be equally explained by reference to consciousness of guilt of two or more offences, and where an [NAME] has admitted culpability in respect of one or more of these offences, a trial judge should instruct a [NAME] that such evidence has no probative value with respect to any particular offence. Those principles can be applied to the facts of this appeal. The trial judge simply told the [NAME] that people often flee the scene of a crime even if they are entirely innocent. Having said what she did upon this matter, she should also have told the [NAME] that because the appellant's flight was equally consistent with both common assault and aggravated assault, it could not be evidence of guilt of the latter. Any inference to be drawn from flight disappears when an explanation for such flight is available, as it is here. The [NAME] should have been warned against drawing any inference from the fact of flight. The trial judge's direction that even innocent people sometimes flee the scene of a crime was insufficient in light of the fact that the appellant admitted that he had committed common assault by punching Heffern and, thus, had reason to flee. The issue was not whether the appellant fled because he was guilty or because he panicked despite being innocent. Rather, the issue was whether the appellant's flight indicated a consciousness of guilt arising from the fact that he had stabbed Heffern or rather from the fact that he had punched Heffern. And on that question, the evidence could have no probative value." 49 In [NAME]'s submission the reasoning in [NAME] is consistent with that of the High Court in [NAME] v The Queen (1993) 178 CLR 193. He also has directed our attention to the judgment of White J in The Queen v Bridgman (1980) 24 SASR 278. 50 In Bridgman the [NAME] proposed leading evidence that [NAME] absconded from bail as an admission by conduct. On a voir dire hearing it emerged that as at the date of the offence charged [NAME] was on parole. He had a substantial reason for absconding in that if convicted of the subject offence his parole would be revoked and he would have been serving the balance of a lengthy sentence of imprisonment. White J excluded the evidence observing: "Likewise, in the present case before me, evidence of flight was not placed before the [NAME] once an additional substantial reason for flight was disclosed in circumstances which made the fact of flight ambiguous and the task of explaining the ambiguity onerous and prejudicial" (at 282). 51 Bridgman was discussed by [NAME] (in a judgment with which Millhouse and Williams JJ agreed) in Power. In that case the [NAME] led evidence that police attended at the appellant's address on 26 June 1993 informing him that they were investigating a series of bank hold-ups which he was suspected of having committed. The following morning the police attended premises at which the appellant's brother was residing. The appellant was present at those premises. Again, the police conveyed they were investigating bank hold-ups and that they believed both the appellant and his brother to be involved in their commission. On 1 July 1993 both brothers left Australia and travelled to the United Kingdom. They remained in that country for some time. Evidence was relied upon by the [NAME] to establish that while in the United Kingdom the appellants used false names and disclosed a close interest in the activities of the police in South Australia. 52 In Power the appellants explained their departure from Australia by saying that they had panicked when told that they were under suspicion in connection with the armed robberies. [NAME] observed: "In my opinion, the evidence was admissible. Taken as a whole it was evidence upon which the [NAME] might conclude that the conduct of the appellants manifested a consciousness of guilt. There is adequate authority to support the view that evidence of flight (and I use this term compendiously to describe the whole of the evidence, because in my opinion it is all interrelated) is admissible as showing a consciousness of guilt: see eg, Melrose [1989] 1 Qd R 572. It will not be often in such cases that the evidence is unequivocally indicative of guilt. There may, I suppose, be cases in which the evidence is intractably neutral, but I fail to see how the evidence in this case can be so regarded. Of course, the explanation advanced by the appellant's was not a ludicrous or obviously false one, but to my mind that does not render the evidence incapable of supplying proof or evidence of guilt. If it did, then much circumstantial evidence which is routinely admitted would be rejected. In my opinion, the ruling by White J, reported in Bridgman (1980) 24 SASR 278, is not to be taken as meaning that evidence of flight is inadmissible simply because a credible explanation is advanced. In my opinion the approach to be taken is that indicated by [NAME] in Melrose (at 579) (assuming that the evidence is not intractably neutral: 'I would however say that in my opinion, when there is evidence of flight before a [NAME] whether there be one or more than one reason advanced for that flight, the [NAME] should be told that it is for them to decide on the whole of the evidence relevant to the charge in which evidence of flight has been admitted what inference is to be drawn from [NAME] persons flight but if at the end of the day they decide to infer a consciousness of guilt in [NAME] person for the offence alleged, they must be satisfied beyond reasonable doubt of such an inference.' In my opinion, the judge rightly admitted the evidence for the purpose identified by the prosecution" (At 409). 53 In the course of oral argument [NAME] drew our attention to a passage in the judgment of Deane, Dawson & Gaudron JJ in [NAME] as supportive of the reasoning which found favour with the Court in [NAME]: "Furthermore, the reluctance of the appellant to recall any more than he was compelled to do in cross-examination occurred in a situation in which the appellant had been in custody and did not wish to inculpate others who were in custody with him – to be a "dog" in prison terminology. That was not questioned by the prosecution as a motive for withholding the truth, indeed the prosecution suggested it. Whilst in many cases it must be a question for the [NAME] whether a lie was told because the truth was perceived to be inconsistent with innocence or for some other reason, if it was established that there was a deliberate lie in this case about a material matter (and we do not think that it was), the innocent explanation for that lie was so plausible that the lie could not have been probative of guilt. Quite apart from our concerns about the existence of the lie and its materiality, this should have prevented the trial judge from concluding that the telling of the lie was capable of amounting to corroboration of the complainant's evidence." (At 212). 54 [NAME] accepted that in the above passage their Honours might not be thought to have embraced a proposition as wide as that set out in [NAME]. It was not his submission that in every case in which there are competing explanations flight ought not to be left as capable of evidencing consciousness of guilt. Such a proposition would be contrary to authority; [NAME] v Adam (1999) 106 A Crim R 510 at 522; Power; Melrose [1989] 1 Qd R 512. 55 In [NAME]'s submission this was a case in which the competing explanation offered by the appellant for his flight was of such inherent plausibility that it was not reasonable to leave flight as probative of guilt. There was no issue about the fact that the appellant was present at the scene in company with his brother and the man [NAME] at the time [NAME] was robbed. It was his account that he had been a party to a joint criminal enterprise, namely to assault [NAME]. On his own account he was aware that agreeing to "bash up" [NAME], on behalf of [NAME], exposed him to criminal liability. He had run from the scene when [NAME] was yelling out and he was arrested shortly thereafter. The real issue in this case was whether the [NAME] could negative beyond reasonable doubt that the appellant's presence at the scene was as a person recruited to assault [NAME]. In [NAME]'s submission the evidence of flight in these circumstances was intractably neutral, to adopt the language of [NAME] in Power. 56 The appellant did not give evidence at the trial. It is necessary to turn to the contents of the ERISP in order to evaluate the challenge advanced on this ground: "Then the lady, the other one that the, the, the guy asked me to come, he, I don't know what they're doing but the lady, you know, she make a yell, you know, just a big noise yell so, then he asked me to run away. So I ran, but I, I don't know what happened, you know, and I don't know he's a robber or what, I don't know because he asked me, he only asked me to come for assault [NAME], you know so that's all I want, I want to say in here" (A 6). … Q. 50 Do you agree that you were arrested in a, an abandoned property, in a vacant block of land … A. Yeah. Q. 51 … [ADDRESS], between [ADDRESS] and [ADDRESS] at Auburn? A. Yes. … Q. 54 … Do you agree that when you were arrested you were with your brother? A. Yeah. Q. 55 What's his name? A. [NAME]. … Q. 57 Right. Can you tell me the circumstances of you being arrested in the paddock there? A. Sorry? Q. 58 Can, can you tell me how you got arrested? A. When she, because when she yelled out and I was so frightened that's why I ran away and hide myself there. By that time my friends already went out, so she thought that we'd, we'd rob her, that's why, and I hid myself there until the police came with the dog. … A 79 Yeah. He saw me, [NAME] at the shop, you know, and he asked me to come and asked [NAME], when I come in, and [NAME] make a yell so, and, and her husband or you know the, the man come out, you know, so I, I come and talk to him. So I don't know what happened when, at my bat, you know, and then the, the, the guy, the guy come with me, he asked me to run, so I tried to run away. Q. 80 Oh, right. A. You know, I jump in the park and hide there because, you know, some, a lot of people look at us, you know, so I'm scared that she thought armed robbery or something, but I don't know what happened. I only know when, you know, the cop come and when they arrest me and they come and ask me where's the money and I, I talk to them, where's the money? I don't know where's money, you know, because I don't know what happened. … Q. 139 He got the pistol. A. But you know … Q. 140 So you're indicating a pistol? A. Yeah, but yeah but he come do like this but it's not shooting. Q. 141 Right. A. Yeah. I think it's a toy, you know. Q. 142 Right. A. Yeah. And after that he walked back to a lady and maybe at, at the time he, he get the, her bag and run away. … Q. 146 OK what happened then? Are you still with the man at that stage? You and your brother still with the man? A. Because he, he run first, you know. Q. 147 Yeah. A. So we don't know, we, he, when he run he asked me to run. He said, hey, run, then I'm, I'm going to run away with my brother at the back and when we go out on the, you know, the road, I didn't see him either. Q. 148 You didn't see him? A. Yeah. Q. 149 What, you lost sight of … A. Yeah, I lost … Q. 149 Of [NAME]? A. … I lost him on the road, you know, so I'm jump in the park and I stay in there. Q. 150 OK then, did you see the, the man and the lady run after you? A. Oh, no, not really. Q. 151 No. A. No, because when we run … Q. 152 Did you hear someone yelling and screaming behind you? A. Yeah, yeah, yeah. … Q. 194 But it's not the right thing to do, you agree with that? A. Yes. Q. 195 To bash the man? A. Yeah. That's why when she make a yell I run away. Q. 196 Yeah. … Q. 349 But then you run off after him. A. When he take it and he run already he asked me to run. Q. 350 He asked you? A. Yeah. Q. 351 So you … A. He said, run run run. Q. 351 … seeing him with the bag? A. Sorry." 57 In the light of that material I consider it was open to the trial judge to leave consideration of the appellant's flight from the scene as capable of amounting to evidence of consciousness of guilt of the offence charged notwithstanding those answers in the ERISP which raised an alternative explanation. 58 [NAME] also challenged the adequacy of the directions given on this topic. It was submitted that his Honour was required to direct the [NAME] that in the event the event that they were not able to exclude the appellant's answers at Q 194 and 195 as providing a reasonably possible explanation for his flight they should put the evidence of flight to one side as being not capable of supporting a finding of guilt. Allied to this aspect of the challenge was the submission that his Honour erred in observing: "[NAME] ran away because [NAME] told him to do so" at the commencement of the directions on flight. It was contended that this was not a complete account of the appellant's statements of his reasons for flight and, to that extent, it was misleading. The matter was compounded by the fact that trial counsel sought a re-direction inviting the [NAME]'s attention to the alternative explanation for flight in answers at Q 193 to 195 inclusive. His Honour declined to remind the [NAME] of this material or to supplement his directions on flight. 59 In the course of his directions on this topic his Honour commenced by directing the [NAME]: "The direction of law I give you is that if you are satisfied beyond reasonable doubt that [NAME] fled the scene of the alleged assault and alleged robbery you may draw an inference against him that he acted in that way because he believed that he was a knowing and willing participant in either or both of the two alleged offences. But before you can draw that inference you must be satisfied beyond reasonable doubt that there is no other reasonable explanation for the fleeing and hiding, in all of the circumstances." (SU23). 60 His Honour went on to direct the [NAME] additionally that it was necessary for the [NAME] to satisfy them that what was in the appellant's mind was consciousness of guilt of the offence charged. Immediately following this latter direction his Honour reminded the [NAME] of the appellant's account in the interview that he had gone to the [NAME] in order to "bash up" [NAME] and not because of any agreement to rob [NAME]. His Honour observed "that is different from what [NAME] has been charged with". As I read the directions on flight they include the concluding paragraph extracted at [44] above in which attention is directed both to the appellant's alternative explanation for his flight and he was there admitting guilt of an offence other than that with which he was charged. 61 [NAME] drew attention to counsel's request for re-directions. While he accepts that upon one construction of his Honour's remarks the [NAME] were adequately directed as to the significance of the appellant's alternative explanation for his flight, the fact remains that in the atmosphere of the trial, experienced counsel considered the directions to be deficient. 62 The [NAME] conceded that it was unfortunate that the trial judge did not accede to counsel's request for the further directions sought on this topic. That is a fair concession. 63 The [NAME] points to the directions on flight as a whole and submits that any deficiency is overcome by the circumstance that his Honour gave a direction which was unduly favourable to the appellant in that it required the [NAME] to be satisfied beyond reasonable doubt that the appellant's flight was the product of his consciousness of guilt of the offences charged before it might be relied upon. The [NAME] points in this respect to the observations of this Court in [NAME] v Adam [1999] NSWCCA 189 at paras [54] – [57]: "[54] In directing the [NAME] to the effect that before any lie or any other conduct on the part of the appellant could be used as evidence of consciousness of guilt, the [NAME] would have to be satisfied beyond reasonable doubt that the lie was told or the conduct was engaged in and would also have to be satisfied beyond reasonable doubt that the lie was told or the conduct was engaged in solely out of consciousness of his own guilt and not for any other reason, the trial judge's directions may have been unduly favourable to the appellant. In the leading High Court decision of [NAME] v The Queen (1993) 178 CLR 193 Deane, Dawson and Gaudron JJ said at p210:- 'Although guilt must ultimately be proved beyond all reasonable doubt, an alleged admission constituted by the telling of a lie may be considered together with the other evidence and for that purpose does not have to be proved to any particular standard of proof. It may be considered together with the other evidence which as a whole must establish guilt beyond reasonable doubt if [NAME] is to be convicted. If the lie said to constitute the admission is the only evidence against [NAME] or is an indispensable link in a chain of evidence necessary to prove guilt, then the lie and its character as an admission against interest must be proved beyond reasonable doubt before the [NAME] may conclude that [NAME] is guilty. But ordinarily a lie will form part of the body of evidence to be considered by the [NAME] in reaching their conclusion according to the required standard of proof. The [NAME] do not have to conclude that [NAME] is guilty beyond reasonable doubt in order to accept that a lie told by him exhibits a consciousness of guilt. They may accept that evidence without applying any particular standard of proof and conclude that, when they consider it together with the other evidence, [NAME] is or is not guilty beyond reasonable doubt'. [55] [NAME] it has been repeatedly held by this Court that "where lies are used merely as evidencing a consciousness of guilt, as part of the circumstantial evidence case, it is unnecessary to establish either the lie or its character beyond reasonable doubt" ( R v [NAME] (unreported 18 April 1995 at p19 per Hunt CJ at CL, citing R v Dellapatrona (1993) 31 NSWLR 123 at 150; R v Sandford (1994) 72 A Crim R 160 at 181: R V Small (1994) 33 NSWLR 575 at 596. [56] In R v [NAME] (unreported Court of Criminal Appeal 21 June 1995) Gleeson CJ said at p16:- 'Furthermore, the directions which Wood J gave to the [NAME] on this matter went very close indeed to telling the [NAME] that they had to be satisfied, beyond reasonable doubt, that there had been a lie told from a consciousness of guilt, before they could add this to the circumstantial case against the appellant. The directions contained references to that being the only rational inference available. In this respect, the directions may have been unduly favourable to the appellant'. [57] We are conscious, and his Honour may well have had in mind, that some doubt has been thrown on the proper standard of proof of some items of circumstantial evidence by the recent decisions of the High Court in [NAME] v The Queen (1998) 72 ALJR 1012 and [NAME] v The Queen (1998) 72 ALJR 1316." 64 I consider that read in context his Honour's directions on flight were adequate and in certain respects favourable to the appellant. 65 I would reject the second ground. 66 MEAGHER JA: I agree. 67 [NAME]: I also agree. It may perhaps have been unfortunate that his Honour peremptorily rejected trial counsel's application for redirections on the question of flight. If he had been minded to clarify them this appeal would have been unnecessary. However, I agree with Bell J that, read as a whole, those directions were adequate in the circumstances and I agree that the appeal should be dismissed. 68 MEAGHER JA: The order of the Court therefore is the appeal be dismissed

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