Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: Kuehne v R; Humphries M v R; Humphries A v R [2012] NSWCCA 270
• Hearing dates: 5/11/2012
• Decision date: 14 December 2012
• Before: McClellan CJ at CL at [1]; Latham J at [4]; Fullerton J at [9]

Decision

1. Appeal upheld.
2. The convictions of each of the appellants be quashed.
3. Verdicts of acquittal be entered for each of the appellants.

• Catchwords: CRIMINAL LAW - appeal - conviction - post offence conduct - consciousness of guilt
• Legislation Cited: Crimes Act 1900; Criminal Appeal Act 1912; Evidence Act 1995
• Cases Cited: Edwards v The Queen (1993) 178 CLR 193; Gilham v R [2012] NSWCCA 131; Jones v R [2005] NSWCCA 443; McKey v R [2012] NSWCCA 1; Petty & Maiden v R [1991] HCA 34; 173 CLR 95; R v Director of Serious Fraud Office; Ex parte Smith [1993] AC 1; [1992] 3 All ER 456; RPS v R [2000] HCA 3; 199 CLR 620; 113 A Crim R 341; Sanchez v R [2009] NSWCCA 171; 196 A Crim R 472; Wilde v R [1988] HCA 6; 164 CLR 365
• Category: Principal judgment
• Parties: Anthony Kuehne (Appellant); Mark Humphries (Appellant); Arthur Humphries (Appellant); The Crown
• Representation: Counsel: C Smith (Appellant Kuehne); T Gartelmann (Appellant M Humphries); J Watts (Appellant A Humphries); N Adams SC (Crown); Solicitors: Barakat Lawyers (Appellant Kuehne); Watsons Solicitors (Appellant M Humphries); Marsdens Law Group (Appellant A Humphries); Solicitor for Public Prosecutions (Crown)
• File Number(s): 2009/58582; 2009/56487; 2009/67476

Decision under appeal

• Jurisdiction: 9101
• Date of Decision: 2011-04-19 00:00:00
• Before: Hock DCJ

Judgment

1 McCLELLAN CJ at CL: I have had the benefit of reading the reasons for judgment of Fullerton J in draft. I agree with her Honour's conclusion that the nature of relevant evidence did not justify the "consciousness of guilt" direction given by the trial judge and for that reason there has been a miscarriage of justice. However, in those circumstances, it is unnecessary to consider whether the "consciousness of guilt direction" had the effect of infringing the appellant's right to silence and for that reason gave rise to a miscarriage of justice. I would prefer to reserve my opinion on that issue for an occasion when it must be decided.

2 I also agree with the reasons of Latham J.

3 I agree with Fullerton J that the appeal should be upheld and a verdict of acquittal should be entered in relation to each of the appellants. However, as her Honour explains the circumstances of this case are unusual. A decision as to the appropriate order in any other case will depend upon the particular circumstances of that case.

4 LATHAM J: I have had the considerable advantage of reading Fullerton J's judgment in draft. I gratefully adopt her Honour's summary of the evidence and the trial process. I agree with the orders proposed by her Honour and with her Honour's reasons with respect to the impugned direction. I prefer to express no view with respect to the alleged infringement of the appellants' right to silence. The disposition of the appeal turns upon a fundamental confusion generated in the trial between the credibility of the account given by the appellants in their respective interviews with police on the one hand, and the legitimate inferences that could be drawn from a combination of circumstances on the other.

5 As Fullerton J has noted, the Crown's submission at trial when the question of a consciousness of guilt direction was first raised was that such an inference could be drawn from the combination of a number of circumstances, including the absence of each appellant from their usual place of residence for a period of days after the incident, their presentation to the police together on the same day and their respective uniform accounts of being assaulted by the complainants. The submission was that, rather than make a timely complaint to police about serious assaults committed upon them, their conduct supported the conclusion that the appellants had jointly manufactured their account. So much might be accepted. However, the next step in the Crown's submission, that these circumstances legitimately gave rise to an inference that the appellants acted as they did and said what they said to police out of a consciousness of guilt, ought to have been rejected by the trial judge.

6 As I observed in McKey, the categories of post offence conduct that have been recognised as legitimate indicia of a consciousness of guilt are not closed, but before any post offence conduct can so qualify, it must bear a particular character. It must be capable of constituting an admission against interest. It must be capable of meeting the conditions analogous to those discussed in Edwards v The Queen (1993) 178 CLR 193 applying to lies. The relevant conduct must be precisely identified and proved by evidence, it must be concerned with some circumstance or event connected with the offence and it must be carried out in circumstances in which the explanation for the conduct is a realisation of guilt on the part of the accused. The type of conduct referred to in McKey, such as flight, destruction of evidence and attempts to influence witnesses, meet all of those conditions.

7 In this case, even assuming that the Crown had pressed the whole of the circumstances surrounding the appellants' conduct in support of consciousness of guilt reasoning (which was not done in the closing address), the appellants' conduct was not capable of constituting an implied admission. To the contrary, it was the essence of their defence at trial. Whether the jury accepted their explanation for the delay in going to the police was a matter that went to the credibility of their account generally, but a consciousness of guilt direction potentially converted their defence into a plank in the prosecution case and thereby deprived it of appropriate consideration by the jury.

8 For these reasons, the trial fundamentally miscarried.

9 FULLERTON J: Each of the appellants Mark Humphries, Arthur Humphries and Anthony Kuehne, appeal their conviction following a trial in the District Court on a charge laid under s 111(3) of the Crimes Act 1900 that on 31 July 2009 they broke and entered a house with intent to commit a serious indictable offence, namely intimidation, in circumstances of aggravation in that they were armed with a pistol.

10 Mark Humphries also appeals his conviction on a charge that he fired the pistol in a manner likely to endanger the safety of Jason Hill, an occupant of the house, contrary to s 93G(1)(c) of the Crimes Act.

11 Anthony Kuehne was sentenced to 4 years imprisonment to date from 12 October 2010 with a non-parole period of 2 years to expire on 11 October 2012. He was released to parole at the expiration of the non-parole period. Arthur Humphries was sentenced to 5 years imprisonment commencing on 24 December 2009 with a non-parole period of 3 years expiring on 23 December 2012. Mark Humphries received a total effective sentence of 7 years with a non-parole period of 5 years to expire on 19 December 2014.

12 There is no application for leave to appeal against the sentences imposed on any of the appellants.

The afternoon and early evening of 30 July 2009

13 The house allegedly broken into was the home of Justin Ryan and his partner, Joanne Ewart. They had both attended the funeral of Mr Ryan's aunt earlier that day with various friends and family members including Steven Cuthbert, the deceased's son, and Jason Hill, one of his cousins. A wake was held at Mr Cuthbert's house. In the early evening a number of people, including Steven Cuthbert, Justin Ryan, Joanne Ewart and their adult daughter Kristy, went to a nearby hotel where Mr Cuthbert became involved in a fight with a hotel patron. It was common ground that he was heavily intoxicated and that security personnel intervened. The appellants Arthur Humphries and Anthony Kuehne, who were drinking at the hotel, informed security staff that Steven Cuthbert's behaviour was likely explained by his recent bereavement and offered to drive him home. Arthur Humphries and Steven Cuthbert had been friends when they were teenagers. He told police he also knew Arthur's brother, Mark Humphries, and knew of his brother Anthony Kuehne.

14 Some time later on 31 July Steven Cuthbert returned to the hotel and became involved in another fight. The appellants Arthur Humphries and Anthony Kuehne interceded on his behalf a second time. On this occasion they drove him to Justin Ryan's home in a car Arthur Humphries had borrowed from a friend, Natalie Chambers, earlier in the day. Justin Ryan and his partner left the hotel at the same time. Arthur Humphries dropped Steven Cuthbert's partner, Laura Ferguson, at his mother's house on the way to collect their children before he drove to Mr Ryan's home. Jason Hill and Ray Thompson, another of Steven Cuthbert's cousins, were already at the house. They had also attended the wake and the hotel earlier that evening. Aside from Laura Ferguson, all the people at the house at the time of the incident were intoxicated.

The fight in the kitchen at Justin Ryan's house

15 It was common ground that the appellants Arthur Humphries and Anthony Kuehne were invited inside by Steven Cuthbert. There was, however, an issue as to whether Justin Ryan had agreed that anyone should be invited back to his house after the group left the hotel. He gave evidence that he did not know either of the appellants and had not seen them at the hotel earlier. Other evidence suggested that he had not only seen them but had taken offence then at what he believed was Anthony Keuhne's interest in female members of his family.

16 Whilst a number of the occupants of the house were in the kitchen taking photographs, Justin Ryan punched Anthony Kuehne to the head with sufficient force that he fell (or almost fell) to the ground. Arthur Humphries then became involved in the fight, apparently in defence of his brother. Justin Ryan admitted punching Anthony Kuehne because of the attention he was paying to his partner, Ms Ewart, and his sister-in-law.

17 It was the prosecution case that Steven Cuthbert broke up the fight in the kitchen and told the appellants to leave. He said they left but threatened to return. He claimed that Arthur Humphries said, "You hurt my brother, you hurt me. We'll be back".

18 Aside from Ms Ewart, who was not available to give evidence at the trial and whose statement given to police on the night was read to the jury with an accompanying warning under s 165 of the Evidence Act 1995, the occupants of the house gave evidence denying that the fight in the kitchen moved to the front yard of the house; that anyone other than Justin Ryan was involved in the fight; that Arthur Humphries was assaulted with a shovel and the car he was driving was damaged; or that anyone in the house used or presented any weapons at any time.

The appellants return and the pistol is discharged

19 It was the prosecution case that Arthur Humphries and Anthony Kuehne left the house after the fight and returned a short time later with their brother Mark who was armed with a gun. Justin Ryan, Steven Cuthbert, Jason Hill and both Kristy and Laura Ferguson gave evidence to the general effect that the three appellants came into the house through the closed but not locked front door; that Arthur directed Justin Ryan outside; that in an attempt by some of the male occupants of the house to wrestle Mark Humphries to the ground the gun was discharged and that Jason Hill was shot in the stomach in the process.

20 Steven Cuthbert gave evidence that his forehead was split and his skull fractured when he was struck with the bottom of the gun when he tackled Mark Humphries. He said that three shots were fired with the first two fired in quick succession and the third when he was struck by the butt of the gun. Justin Ryan gave evidence that the gun was pointed at him as Mark Humphries came in through the door and that the gun was fired once. He said that a couple of days later his partner found a bullet in the lounge room and a bullet hole in the wall which was given to police.

21 Laura Ferguson said the gun went off as it fell to the floor. Ray Thompson gave similar evidence. Jason Hill also gave evidence of hearing only one shot which he said hit his stomach although he do not realise it at the time only noticing a bruise on his stomach a couple of days later. He said he did not notice he had been shot, he did not feel any pain or see any blood and did not tell police he had been shot until weeks later because he was drunk on 30 July and for the following two days. He said he was being treated with morphine for "something else" which might have masked the pain.

22 There was no medical evidence led at the trial confirming that the bruising to his stomach was consistent with a gunshot wound. The shirt which he claimed was damaged when the bullet struck him was not analysed to confirm the presence of gunshot residue.

The 000 calls

23 In the 000 call placed on the night at 12.01am Joanne Ewart said that people had come into the house with a gun and that the gun was thrown on the ground and she had thrown a towel over it. She said that three men, who she did not know, had turned up in a car that was parked out the front of her house. She provided the registration number of the car and later said she had photographs of the men on her phone. She said the men had come to the house after having drinks at the Bidwill Hotel and they had later returned with a gun. She said that she was in her car when they pulled up behind her. She said:

[They] went in the front door, I heard a bang. [They] come out, they turned around, there was a big punch on... The gun was dropped in the hallway and they were off. The gunner ran... There was two others, but there was three guys...

24 She said that there was also another shooter that was on the run; he ran up the street and was wearing a white jumper. She said she put a shovel through the window of their car.

25 The 000 operator also spoke to Kristy Ferguson who said that the gun was discharged inside the house. She later told the operator that there were "three white guys", two of whom "walked through the house without us knowing". She said they were swearing. She said it (the gun shot) "just got my uncle... My uncle screamed...". When asked by the operator if she knew whether anyone was shot she said:

I don't know. But when the gun went off, I heard my Mum scream, someone's been shot, and then when I got out there, when I went out there, I hear my Mum say my Dad got shot, my Dad got shot, Steven got shot, Steven got shot.

(Kristy Ferguson's parents are Justin Ryan and Joanne Ewart. Steven Cuthbert is her uncle.)

26 Investigating police attended the house shortly after midnight and declared a crime scene. They canvassed the area and spoke with neighbours, none of whom claimed they heard a gunshot, including two neighbours who also called 000, to report "a brawl" where people were armed with sticks, someone was being beaten and a car at the front of the house was being smashed.

The police investigation

27 The crime scene officer who conducted a thorough investigation of the premises did not find a cartridge case, bullet fragments or any bullet impact damage. A .22 single shot pistol of an unknown brand, with no visible serial number and with no cartridge in the chamber was given to police at the scene. A ballistics expert gave evidence that some parts of the pistol were homemade and fitted to part of a commercially manufactured barrel. Nonetheless, the pistol was in working order and capable of firing a single .22 calibre bullet, which had to be manually reloaded after each firing. Under testing the cartridge only partially ejected from the chamber and jammed altogether on two of three tests.

28 The ballistics expert confirmed that the bullet handed to police some days after the incident had been fired from the pistol and, contrary to what he would have expected were the bullet to have impacted with a hard surface when discharged, it was not significantly damaged. He considered the only scenario in which the undamaged bullet could have struck the body of a person without penetrating the skin would be if the ammunition had malfunctioned.

29 It was the Crown case that after the gun was discharged in the house the fight with the three appellants continued on to the front lawn by which time Anthony Kuehne had armed himself with a shovel (which Jason Hill said he was struck with) before a car collected the three men and drove away. A shovel was found inside the house which was later subjected to forensic testing which confirmed the presence of Justin Ryan's DNA on the handle of the shovel. His fingerprints were also detected on the front window of the car that Arthur Humphries was driving. The DNA results were not available until after Justin Ryan had given evidence. He was not available to be recalled.

30 Under cross-examination each of the principal Crown witnesses denied they had lied when they claimed the appellants returned to the house armed with a gun to cover up the fact that Justin Ryan's unprovoked attack on Anthony Kuehne in the kitchen got out of hand when other family members became involved resulting in Arthur Humphries being assaulted with a shovel and the car he was driving damaged with weapons of various kinds. Justin Ryan denied that the pistol handed to police belonged to him or that the bullet he claimed to have found two days later was planted by him to incriminate the appellants. Jason Hill denied that he joined with other Crown witnesses to give false evidence about being shot because he was concerned that he might be charged by police for his role in the events of the night.

The cases for the accused

31 The appellants did not give evidence at their trial. They each relied on the accounts they gave police when they attended the police station on 5 August 2009 and they were arrested. After being cautioned in conventional terms, they agreed to be interviewed. During their respective interviews they were each invited to offer an explanation for the delay in informing police they were the victims of an assault by Justin Ryan and other members of his family five days earlier. On the Crown's application, and over defence counsel's objection, the fact of delay was left to the jury as conduct capable of supporting an inference of guilt.

Anthony Kuehne's ERISP

32 Anthony Kuehne described being assaulted in the kitchen after he was falsely accused of making unwanted advances towards Justin Ryan's partner and his sister-in-law. He told police that he did not know the name of the man who first hit him. He described him as tall, solid and Aboriginal. (His brother, Arthur, also described the man in similar terms. It was not in issue that they were describing Justin Ryan.) He said the fist fight progressed into the front yard where other occupants of the house armed themselves with makeshift weapons, including a shovel and iron bars. He said his brother, Mark, was driving down the street with his wife and child when he saw the fight. He said at that time he was fighting in defence of himself and his brother, Arthur. He said Mark did not have a gun when he arrived and he did not hear any guns being discharged.

33 He said he was punched and hit on the back of the head and in the ribs but was not hit with any weapon. He sustained a black eye, a graze under his eye (which he claimed had healed) and a lump behind his ear. He said his brother Arthur's mouth was "busted", that he had missing teeth, a black eye, chipped tooth and bruises on his ribs and arms.

34 Anthony told police that he stayed away from his home after the incident because he was frightened of repercussions. He said he had heard that "[Justin Ryan] and all his cousins and all the Kooris in Mount Druitt are arming up and they're coming looking for us". He said that although he had received a beating from the people in the house, he said when incidents like that happen, "I don't ring the police or get the police involved". When he was asked whether he thought of calling the police he said, "Not really ... I don't call the cops and dob on people".

Arthur Humphries' ERISP

35 Arthur Humphries told police that he intervened in the fight in the kitchen by offering to fight the person who had punched his brother. He said as he was walking through the house on his way outside he was hit in the face with a shovel and then hit with a pole. He said his teeth were knocked out and his bottom tooth went through his lip. He said as he tried to get into the car that he had borrowed, someone smashed the windows. He also said that his brother Mark, who lived around the corner, pulled up in a car and that he intervened in the fight and was also assaulted. He said his brothers extracted themselves from the fight and were driven away by Mark's partner, leaving the car that he had driven to the house parked on the street in a damaged state. He said that he drove past the house the next day but that the car was no longer there. He said he informed Natalie Chambers that her car was missing and that some days later she told him that police wanted him for questioning over the incident.

36 He said he did not seek any medical attention because he did not believe in doctors. He said he had never been to a doctor or taken medication in his life. He said he did not think of going to the police to complain about being assaulted or the damage done to Ms Chambers' car. He said, "I'm not that sort of person. I get jumped, I get bashed, I cop it on the chin ... I'm not a dog". He was also asked the following questions and gave the following answers:

Q Did you think about calling the cops from Deborah's car just about your car?

A No. I don't think about that sort of thing.

Q Were you not worried about the ...

A Like I said ... after I got bashed I'm a bit busted, a bit sore.

Q Yeah.

A I couldn't drink so I just wanted to go home to my kids and lay down and try to eat and clean myself up a bit.

...

Q OK. So ... this is maybe the fifth day since the incident. Why has it taken five days for you to come in and see us?

A 'Cause I only just heard from Nat, she owns the car, she said she was talking to the police or something saying, yeah, what's happened to my car, it's gone missing from this house. She said one of the detectives turned around and said your car was used in a home invasion or something. I said, "What? Used in a home invasion?" 'Cause she went off at me. I said, "Home invasion, I'm there drinking." I said, "I got jumped out the front." I told you what happened. She goes, "Well, the police said they're looking for you." I said, "Looking for me? Right. Well, I'll go walk in." I said, "I've got nothing to hide."

Mark Humphries' ERISP

37 Mark Humphries told police that he was at home with his partner when they left with their eight-week old infant to buy some nappies at a local service station. He said his partner was driving toward the service station when he saw a fight in the front yard of a house in a neighbouring street and the car his brother had been driving earlier that night parked near the house. He said he got out of the car and saw both his brothers on the veranda with seven to ten men beating them with shovels and other weapons. He said he told his brother to get into the car, but that the group then turned on him and started to attack him so he told his partner to drive away. He said he did not have a gun and did not hear a gun discharge but heard a bang associated with a car being struck. He said when his partner came back he and his brothers somehow ended up in the car and they drove off.

38 He said he had loose teeth, a scrape on his side, bruises and scratches on his back, grazes on his legs, cuts and a black eye. He did not seek medical attention because he did not have a family doctor and had not seen a doctor in years. He was questioned as to why he did not inform the police earlier than 5 August and gave the following answers:

Q Did you call the police?

A No.

Q Why not?

A Because I've never called the police. I've never been one to call the police. I've never told on anyone in my life and it's just never been in my culture to call the police.

Q Yeah.

A Like...

Q Did you think for this, this occasion it might warrant it?

A Um...

Q If what you're saying...

A Yeah.

Q ...is that your brother's at a house and he's just getting absolutely flogged senseless...

A Yeah.

Q Yeah.

A I've never called the police in my life.

Q OK.

A Like, it's something I just don't do.

39 Other evidence bearing upon the issue of delay in reporting the incident was led in the Crown case. Stacey Roach, a former partner of Anthony Kuehne, gave evidence that Anthony and Arthur Humphries came to her home in the middle of the night. She said Anthony had blood on his face, and Arthur had a tooth missing, a cut in front of his mouth, bumps on his head, and blood on his face. Arthur told her that he was hit in the face with a shovel during a fight. She told him he needed to see a doctor. She told Anthony to leave and that Arthur left with him. Anthony told her he was going home. Later, she phoned to make sure he had arrived home.

40 The following Saturday (2 August), she said Anthony telephoned her and asked if he and Arthur could stay with her. They stayed for two nights. She said the three appellants and Mark Humphries' partner, Deborah Baxter, came to her home the following week and that the decision was made to speak to police.

41 Carina Archer confirmed that she was in a relationship with Anthony Keuhne at the time of the incident. She said that on the morning of the incident she woke to find Anthony in bed but she did not know when he had arrived. He had a scratch on his eye and told her he had been in a fight. She said he did not stay long before leaving and saying that he was going to stay at Stacey's house. She agreed that it was unusual for him to stay away from her house for long.

42 On the night of the incident Steven Cuthbert told police where he understood the appellants were living. For several days police attempted to locate the appellants without success. Detective Sergeant Bayliss agreed that on 4 August he spoke with Deborah Baxter (Mark Humphries' partner) and asked her to pass on a message to the three appellants that police wanted to speak with them. On 5 August he asked another person to pass on a message to the same effect. At about 8.30pm that day the appellants attended Mt Druitt police station together. They were arrested and agreed to be interviewed.

The grounds of appeal

43 Although grounds of appeal filed by each of the appellants were slightly differently worded, in essence it was jointly submitted on the hearing of the appeal that the trial miscarried by reason of the trial judge's direction that the delay of five days before the three appellants presented at the police station and gave their account of events may be used by the jury as evidence that they were conscious of their guilt of the offences charged.

44 The conflict between the evidence of the occupants of the house and the appellants' accounts to police (with evidence in the Crown case capable of both supporting and contradicting the competing versions) attracted a direction from the trial judge that were the jury to regard their accounts as a reasonably possible version of events they were entitled to be acquitted. Her Honour did not, however, direct the jury that even were they to reject those accounts they would need to be satisfied beyond reasonable doubt of the evidence of the Crown witnesses (that they returned to the house armed with a pistol and that Mark Humphries discharged it) in order to return verdicts of guilty. Although a direction in these terms was not sought, on the appeal it was submitted that in a trial that was essentially word on word and where the appellants relied upon the accounts given in their ERISPs to raise a doubt as to their guilt, to erroneously direct the jury that the five day delay in providing their accounts could be used by the jury as evidence of their guilt was such that it was not open to the Crown to rely upon the application of the proviso in s 6(1) of the Criminal Appeal Act 1912 (Wilde v R [1988] HCA 6; 164 CLR 365).

The application by the Crown for a consciousness of guilt direction

45 Prior to the commencement of closing addresses the Crown prosecutor confirmed her intention to seek a direction from the trial judge that the appellants' "post-offence conduct", constituted in part by what was said to be the delay in going to police and complaining of being attacked, could be used by the jury as evidence that they were each conscious of their guilt of the offences charged. At that time the Crown also intended to rely upon the fact that the appellants had stayed away from their respective homes in the days after the incident, and their failure to seek medical treatment for their injuries, together with the fact of delay, as capable of amounting to a consciousness of guilt.

46 The Crown's intention to rely on this body of evidence for that purpose was made clear earlier in the trial when defence counsel objected to the Crown leading evidence of the enquiries that police had made to locate the appellants in the days following the incident at Justin Ryan's house. Her Honour admitted that evidence, limited at that time to the creditworthiness of the accounts each of the appellants had given to police of their involvement in the events of the night and their conduct in the days that followed. It was not submitted on the appeal that the evidence was wrongly admitted for credit purposes.

47 In the course of argument later in the trial as to whether a consciousness of guilt direction would be given and, if so, what components of the post offence conduct relied upon by the Crown were capable of being considered by the jury for that purpose, the trial judge noted that the fact that five days had elapsed before the appellants presented themselves at the police station was already in evidence. It was not only obvious from the chronology of events proved in the Crown case but each appellant had been offered the opportunity by the interviewing police to explain the delay (and each had given an explanation for it), without counsel submitting that the ERISPS should be edited to excise this line of questioning as undermining the appellants' right to silence. From that it might safely be assumed that counsel had apparently accepted that the fact of delay was relevant to the jury's assessment of whether what the appellants told police was a reasonably possible version of events. The only remaining question before closing addresses was whether the fact of delay (either alone or in combination with other post offence conduct) was also capable of supporting an adverse inference from which guilt might be inferred.

48 During the course of argument on that question her Honour was referred to Petty & Maiden v R [1991] HCA 34; 173 CLR 95 and to what this Court observed in Sanchez v R [2009] NSWCCA 171; 196 A Crim R 472 as the limits of permissible comment on inconsistencies between an accused's account to police and the evidence given by an accused at trial. Defence counsel submitted that the consciousness of guilt direction sought by the Crown, based as it was upon the five day delay in the appellant giving his account to police, contravened the prohibition on a jury drawing an adverse inference from the exercise of the right of each of them during that period not to speak to police, whether to volunteer their accounts as innocent victims or to answer questions as suspects.

49 Her Honour was not persuaded that to leave the issue of delay as consciousness of guilt infringed the appellants' right to silence when they had chosen to break their silence by participating in an ERISP. She distinguished the prohibition on drawing an inference from silence in Petty on the basis that it was "a completely different factual scenario" to the case she was considering where the appellants had broken their silence but not given evidence at trial. She was also satisfied that simply because the appellants had each proffered an explanation as to why they did not approach police earlier did not disentitle the Crown from seeking a consciousness of guilt direction. Her Honour held (and correctly) that those explanations were for the jury to weigh and consider in determining whether, with the directions she proposed to give, they would draw an inference of guilt.

50 Her Honour ruled on the objection in the following way:

I am with the Crown to the extent that she is entitled to have a consciousness of guilt direction but I would have thought that relates to the gap of five days. That is I think where the consciousness of guilt should relate. Other matters are matters for argument that the jury might think the failure to get medical attention was a relevant factor, but I don't understand it to be a consciousness of guilt argument. I would limit the consciousness of guilt to simply the gap [of five days] ...

51 Despite a ruling in her favour, in the Crown's closing address she did not urge the jury to use delay to support an inference of guilt:

... What the Crown says in relation to those interviews are that the three accused have made up what is in their interviews and you will not accept it.

On the accuseds' versions they would have you believe that they were victims of a serious assault by Steven Cuthbert and his cousins using shovels, poles, baseball bats. If that were the case you might think that they would have made a timely complaint about it. The fact is it took five days from immediately after the incident until they presented themselves at Mount Druitt Police Station at about 8.30pm.

52 The Crown then referred to the efforts to locate the appellants during that time and said:

Her Honour will give you directions of law just how you can use this conduct of the accused in that five day period.

53 She took the jury through the ERISPs and referred to the evidence of Stacey Roach and Carina Archer, then submitted:

And despite the three accused saying they were the victims of this assault, they don't seek medical attention, they don't report this vicious attack, which they say occurred with the use of a weapon, poles, whatever, including the damage to Arthur Humphries' car that he borrowed, they don't go back to their homes. These are all matters for you, the judges of the facts.

54 In responding to the Crown address it is not surprising that defence counsel did not refer expressly to the issue of delay as capable of being used by the Crown as positive evidence of guilt and the need, in those circumstances, for the jury to approach the particular appellant's explanation for the delay with caution before drawing that inference.

55 Counsel for Mark Humphries did not refer to the issue of delay at all. Counsel for Anthony Keuhne concentrated on where his client was before presenting to police as bearing upon his credit, the Crown having submitted that he told lies about his whereabouts. He also submitted that although there was no obligation on his client to report having been assaulted by people at the house he went to the police with his brother when he learned that police wanted to talk to them.

56 Counsel for Arthur Humphries addressed what she said was the Crown's criticism of her client for not having sought medical attention and his delay in reporting the assault by submitting that he decided to wait for his mouth to heal before going to a dentist and, in any event, he was under no obligation to report the fact that he had been assaulted, or to speak to police at all about the events of the night.

57 Notwithstanding the addresses of counsel, and without revisiting the question whether a consciousness of guilt direction was still called for, the trial judge directed the jury as follows:

The next matter, members of the jury, is this topic of what has been referred to as consciousness of guilt. As you know, all the accused went to the police voluntarily at about 8.30pm on Wednesday 5 August and that as you know was almost five days after the alleged offence which as you also know, occurred just after midnight on 31 July.

The Crown relies on that evidence as being capable of, and in fact supporting the Crown case, supporting the prosecution case. Because the Crown prosecutor argued that, that gap of some four plus days, was because each accused knew he was guilty of the offences. He was conscious of his guilt or he recognised his guilt of this offence or these offences in the case of Mark Humphries.

(As noted above the Crown had not ultimately advanced that submission.)

58 After referring to the explanation for the delay each appellant had given in his record of interview, her Honour continued:

Again it is for you to decide what evidence you accept but before you use the evidence on which the Crown relies, that is, this gap of four to five days, as consciousness of guilt and as support for the Crown case, you must be satisfied that the reason the particular accused whose case you are then considering did not go to the police earlier, was a realisation of guilt and a fear of the truth. You must be satisfied that the evidence establishes that the reason for that delay was a consciousness of guilt of these specific offences charged. It is only if you are satisfied that the evidence points unequivocally to a consciousness of guilt of the offence or offences, and not some other offence or fear of being unjustly accused, or the reasons advanced by the accused in the interview that this evidence can be used, that is this evidence of the gap in time can be used by you in support of the Crown case.

If you are satisfied that the evidence does point unequivocally to a consciousness of guilt, then you are able to use it in support of the Crown case. If you are not so satisfied, that is, if there is a reasonable possibility that the accused whose case you are then considering, delayed for the reason that he gave in the interview or reasons that he gave in the interview, or for some other reason, that is the fear of being unjustly accused, then you would put that evidence to one side, the evidence about the delay in going to the police and you do not use it in any way against the accused. In other words, you just put that piece of evidence to one side and go back in essence to the eye witnesses and the account of the incident of that night.

59 Following a request for a further direction to emphasise the right to silence, the trial judge directed the jury as follows:

Members of the jury, just going back to one matter you will recall in terms of when I talked to you about consciousness of guilt and the accused attending the police station on 5 August you will recall that was voluntarily done. Of course they were under no obligation to attend the police station on that day, nor in fact to speak to the police. But having spoken to the police, of course it is now evidence that you can consider.

60 On the appeal it was submitted that although the trial judge directed the jury that the appellants were under no obligation to attend the police station or provide information to police, her direction that guilt could be inferred from their delay in volunteering their accounts was both logically inconsistent with the exercise of their right to silence up until that time and likely to be confusing given the way the parties had put their respective cases in closing addresses. The Crown submitted that the direction, properly analysed, was not an adverse comment about the appellants having failed to answer questions or provide information before they agreed to be interviewed by police (her Honour's directions on the appellants' right to silence being unambiguous) and that there was therefore no breach of the prohibition on comment for which Petty remains the seminal authority. Rather, so the Crown submitted, the focus of the direction was on the failure of the appellants to make a timely complaint as victims of an assault.

Was the direction an infringement of the right to silence?

61 For the purposes of the appeal, I have not found it necessary to decide whether the consciousness of guilt direction given in this case had the effect of infringing the appellants' right to silence, and for that reason the direction should not have been given (the submission of defence counsel at trial and the approach taken by the appellants' counsel on the appeal). However, since I am of the view that the direction had that potential, I will outline in a summary way my reasons for coming to that view.

62 Where it is said the right to silence has been infringed in the context of a criminal trial it is critical to identify with precision where and how that has occurred (RPS v R [2000] HCA 3; 199 CLR 620; 113 A Crim R 341 at [630]). Although I accept that the right to silence under consideration in this case does not fall squarely within the categories of immunity identified by Lord Mustill in R v Director of Serious Fraud Office; Ex parte Smith [1993] AC 1; [1992] 3 All ER 456 at [30]-[31] although it may fall within category six (referred to by McClellan CJ at CL in Jones v R [2005] NSWCCA 443 at [70]), it seems to me that the election by each appellant to give an account to police on 5 August following their arrest, and at that time to forego the immunity from being compelled to answer questions or provide information, must be coexistent with the unqualified right that they had not to speak to police or provide information until they decided otherwise. That being the case, it follows that to invite the jury to infer guilt from the appellants not presenting themselves to police for questioning earlier than 5 August, even with the knowledge that police wished to speak with them, is to invite the jury to infer guilt from their silence in contravention of the principle laid bare in Petty where Mason CJ, Deane, Toohey and McHugh JJ said:

A person who believes on reasonable grounds that he or she is suspected of having been a party to an offence is entitled to remain silent when questioned or asked to supply information by any person in authority about the occurrence of an offence, the identity of the participants and the roles which they played. That is a fundamental rule of the common law which, subject to some specific statutory modifications, is applied in the administration of the criminal law in this country. An incident of that right of silence is that no adverse inference can be drawn against an accused person by reason of his or her failure to answer such questions or to provide such information. To draw such an adverse inference would be to erode the right of silence or to render it valueless...

That incident of the right of silence means that, in a criminal trial, it should not be suggested, either by evidence led by the Crown or by questions asked or comments made by the trial judge or the Crown Prosecutor, that an accused's exercise of the right of silence may provide a basis for inferring a consciousness of guilt. Thus, to take an example, the Crown should not lead evidence that, when charged, the accused made no reply. Nor should it be suggested that previous silence about a defence raised at the trial provides a basis for inferring that the defence is a new invention or is rendered suspect or unacceptable.

63 In Sanchez, Campbell JA (with whom Latham and Harrison JJ agreed) approved of the following extract from Jones and noted as follows:

[54] An important qualification of the extent to which the "right of silence" prohibits comment at a trial upon failure of an accused to give his account of the facts at an earlier time is stated by McClellan CJ at CL in Jones at [75]:

Of course, if the accused chooses to break his or her silence and give an explanation before trial which is inconsistent with an account given in evidence, the inconsistency may be used by the prosecution, both to attack the accused's credit, and as consciousness of guilt.

[55] What is meant by "break his or her silence" here is that the accused, during official questioning, chooses not to exercise the third type of right of silence [in R v Director of Serious Fraud Office; Ex parte Smith, namely an immunity possessed by a suspect who is being interviewed by police not to answer questions], and in the course of answering the question gives an account that is inconsistent with his or her evidence at the trial. To similar effect is R v Reeves (1992) 29 NSWLR 109 at 111 per Mahoney JA, 114-115 per Hunt CJ at CL (with whom Badgery-Parker J agreed).

64 It is true to say that the appellants "broke their silence" when they agreed to be interviewed following their arrest. However, the qualification on the prohibition on comment to which reference is made in the above extract did not come into play in this case because as the appellants did not give evidence at trial there was no issue of inconsistency which might have legitimately attracted adverse comment in the way suggested by McClellan CJ at CL in Jones.

Was the fact of delay capable of amounting to consciousness of guilt?

65 Whether or not the consciousness of guilt direction had the effect of infringing the appellants' right to silence in this case, in my view the delay in attending at the police station was not capable of rationally supporting the inference of guilt for which the Crown contended and the direction under challenge should not have been given for that reason.

66 In McKey v R [2012] NSWCCA 1 Latham J (with whom Whealy JA and Hislop J agreed) accepted at [26] that the legitimacy of the Crown's reliance upon inferences capable of being drawn from an accused's post offence conduct as amounting to a fear of the truth or a consciousness of guilt has long been recognised. Categories of so called "post offence conduct" typically include flight, lies, interference with evidence or witnesses, or other proven conduct of an accused. Although on the appeal the Crown was unable to point to a case where a delay in giving an account to police (not otherwise associated with evidence of flight or other potentially incriminating behaviour) was admitted as consciousness of guilt, reliance was placed upon McKey as exemplifying the principled approach that should be followed when the admission of evidence of consciousness of guilt is in issue, an approach which the Crown submitted was followed by the trial judge in this case.

67 In McKey the issue was whether the accused's failure to robustly deny guilt when first confronted with an allegation of child abuse by the family of the complainant, and to "protest his innocence from the rooftops" thereafter, was relied upon by the Crown in such a way as to invite consciousness of guilt reasoning and not simply as a factor bearing upon his credibility as a witness. Her Honour was satisfied it did invite reasoning of that kind and that the trial miscarried, there being no adaptation of an Edwards direction given by the trial judge to guard against the jury drawing an unjustified inference adverse to the accused, (particularly where, the case being word on word, the jury might well have looked for evidence tending to support the allegation). As I read her Honour's judgment at [43], she did not express a concluded view that the conduct upon which the Crown relied in McKey, if properly analysed at trial in accordance with the approach of the High Court in Edwards, would have been admitted as evidence capable of constituting a consciousness of guilt of the offences charged.

68 Her Honour did observe that where the Crown intends to rely upon an accused's post offence conduct as evidencing consciousness of guilt, the evidence must be capable of rationally supporting an inference of guilt of the crime charged before it is admitted for that purpose and, as part of that enquiry, the conduct must be identified by the Crown with precision and its capacity to constitute an implied admission of the offence charged made patent.

69 I am satisfied that enquiry was not undertaken with sufficient rigour by the trial judge in the present case. The Crown did not identify with any clarity how the delay in presenting to police supported an inference of guilt (of each of the appellants of the offences charged) save as to submit that it was capable of revealing they had each concealed their guilt. The trial judge's directions were to the same effect. The circularity in that reasoning deprived the evidence of the essential requirement that the conduct under consideration, together with other circumstances and events, is capable of rationally supporting an inference of guilt. If the issue of delay in this case had that capacity it would follow that in every case where an accused, knowing or believing that they are suspected of having committed an offence, did not promptly give an exculpatory account to police, the Crown would be entitled to seek a consciousness of guilt direction. The absurdity of that proposition exposes the flaw in the Crown's argument at trial and the Crown's submissions on appeal.

70 In this case, isolating the fact of delay as "post offence conduct", divorced from the related (and potentially more telling) fact that the appellants appeared to have been in each others' company for five days before going to police to give largely identical accounts of the incident, deprived the bare fact of delay of sufficient weight for the purpose which the Crown contended, that is, as positive evidence of guilt. I do not intend to suggest that even were those additional features of the appellants' post offence conduct taken into account by the trial judge, that the evidence would necessarily have attracted a consciousness of guilt direction. It is sufficient for present purposes that the fact of delay alone did not meet the test of admissibility.

The proviso

71 The Crown submitted that even if the direction has resulted in a miscarriage of justice the proviso under s 6(1) of the Criminal Appeal Act should be applied since, on an independent review of the evidence properly admitted at trial, this Court would be satisfied, to the criminal standard, that the appellants' guilt had been proved. In this case, where the credibility of the Crown witnesses was under direct and sustained challenge (in part because of the police investigation which raised questions as to when and where the firearm was discharged and by whom), I find myself unable to reach the necessary degree of satisfaction that the appellants' guilt has been proved beyond reasonable doubt, even allowing for the fact of delay to negatively impact upon the credit worthiness of their accounts to police.

Should a retrial be ordered?

72 The quashing of a conviction ordinarily attracts an order for a retrial subject always to the broad discretion conferred under s 8(1) of the Criminal Appeal Act as to whether, in any particular case, the interests of justice require a new trial (see Gilham v R [2012] NSWCCA 131 at [648]-[649] per McClellan CJ at CL). In this case, since Anthony Kuehne has served the non-parole period imposed following his conviction and Arthur Humphries is likely to be released to parole before any retrial could be convened, I am satisfied that there is no utility in ordering a new trial on the only count on the indictment with which these appellants were charged.

73 Despite the fact that Mark Humphries' non-parole period does not expire until December 2014, I would not order that he be retried on either of the counts with which he was charged. Although the second count, which alleged that he discharged the firearm, was not dependent upon his participation in a joint criminal enterprise with his brothers, his joint possession of the gun with his brothers was particularised as a feature of aggravation in proof of the first count which the Crown did allege was committed as a joint criminal enterprise. In the somewhat unusual circumstances of this case, and despite the separate offending with which he was charged by reason of the allegation that he discharged the firearm (he jointly possessed with his brothers), to isolate him as one of three co-offenders, and to order that he be retried in isolation from his brothers on both counts, would be contrary to the interests of justice. I am encouraged to that view by noting that he has served a substantial proportion of the effective non-parole period of 5 years imposed after partial accumulation of the two sentences.

74 I propose the following orders:

1. Appeal upheld.

2. The convictions of each of the appellants be quashed.

3. Verdicts of acquittal be entered for each of the appellants.

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Decision last updated: 14 December 2012