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[2016] WASCA 97
Court of Appeal (WA)
2016-06-15
Buss JA
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : CORBETT -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 97
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Criminal law - Appeal against conviction - Murder - Whether lie capable of being seen as implied admission of guilt - Whether assumption or satisfaction of appellant's guilt required to establish falsity of alleged lie - Whether lie properly identified by prosecutor and trial judge
Criminal law - Appeal against sentence - Murder - Turns on own facts
Angliss v The State of Western Australia [2015] WASCA 8
Atherden v The State of Western Australia [2010] WASCA 33
Aubertin v The State of Western Australia [2006] WASCA 229; (2006) 33 WAR 87
Chen v The Queen [2015] NSWCCA 122
Coates v The State of Western Australia [2009] WASCA 142
Cockram v The State of Western Australia [2011] WASCA 179
Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1
Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193
Goodwyn v The State of Western Australia [2013] WASCA 141; (2013) 45 WAR 328
Hedgeland v The State of Western Australia [2013] WASCA 97
House v The King [1936] HCA 40; (1936) 55 CLR 499
Johnston v The State of Western Australia [2012] WASCA 18
Mack v The State of Western Australia [2014] WASCA 207
NAD v The State of Western Australia [2013] WASCA 2
Pedersen v The State of Western Australia [2010] WASCA 175
Prestidge v The State of Western Australia [2014] WASCA 16
R v Lane [2011] NSWCCA 157; (2011) 221 A Crim R 309
R v Pham [2015] HCA 39; (2015) 90 ALJR 13
R v Sirillas [2006] VSCA 234
Rosewood v The State of Western Australia [2014] WASCA 21
Silva v The State of Western Australia [2013] WASCA 278
Stinson v The State of Western Australia [2014] WASCA 72
The State of Western Australia v O'Kane [2011] WASCA 24
The State of Western Australia v Smith [2015] WASCA 87
Wang v The Queen (unreported NSWCCA, 11 February 1994)
Zheng v The Queen (1995) 83 A Crim R 572
Zoneff v The Queen [2000] HCA 28; (2000) 200 CLR 234
Zwerus v The State of Western Australia [2015] WASCA 174
3 At 7.50 am on Friday, 11 October 2013, the appellant made an emergency call which resulted in ambulance officers attending the house in Beckenham at which he was staying. The appellant was present at the house, in an agitated state, when the ambulance officers arrived. The deceased was lying in an injured and unresponsive state on a couch in the lounge room of the house. The deceased was transported to hospital, where she died on 12 October 2013, from complications of head and neck injuries.
4 The appellant, who had been in a troubled and violent intimate relationship with the deceased, was charged with her murder. The State alleged that he inflicted the physical injuries which caused her death, intending to kill her or to cause her bodily injury of such a nature as to endanger or be likely to endanger her life. The jury convicted him of that offence, for which he was sentenced to life imprisonment with a minimum non-parole period of 18 years.
5 The appellant appeals against his conviction. Ground of appeal 1 alleges that a miscarriage of justice occurred when, over objection, the trial judge left a lie to the jury as one capable of being an 'Edwards lie'. Ground 2 alleges that a miscarriage of justice occurred when, over objection, the trial judge allowed the prosecutor to leave the same lie to the jury as an 'Edwards lie' when it had not been identified in the prosecutor's opening address. The reference to an 'Edwards lie' is to a lie which establishes a consciousness of guilt and is therefore evidence of guilt,[1] rather than a lie which goes to credit only.[2]
6 The alleged lie was that the appellant had told investigating police that another man, Germaine or Tremaine Garlett, was responsible for the deceased's injuries.
7 The grounds of appeal against conviction fail. The alleged lie was capable of being regarded as evidence of consciousness of guilt. It was appropriate for the trial judge to direct the jury as to the use which they could make of that evidence. The prosecutor's opening statement anticipated that the jury would be asked to use the evidence of the alleged lie in that manner.
8 The appellant also appeals against sentence, on the ground that the minimum term of 18 years' imprisonment was, in all the circumstances, manifestly excessive. This ground fails as the minimum term imposed was well within the bounds of the trial judge's sentencing discretion.
9 The case against the appellant was circumstantial. As the grounds of appeal relate only to the directions to the jury as to the use made of an alleged lie, it is unnecessary to describe the whole of the course of the trial or the evidence against the appellant. What follows is confined to the evidence relating to the alleged lie.
10 Constables Abbott and Talajic were the first police officers to attend the Beckenham house, arriving at about 8.20 am on 11 October 2013.
11 The appellant met the officers at the front door of the house, and told them that the deceased had arrived in an injured state in the early hours of the morning, having been dropped off in a vehicle, and that he had helped her inside. The appellant said that he had called an ambulance later on in the morning when she started to have a seizure or fit. The appellant said that he had last seen the deceased a couple of days prior when she attended the Beckenham house.
12 The officers then went to the hospital where the deceased was admitted, and were subsequently tasked with returning to the Beckenham house to declare a protected forensic area and to locate the appellant. The appellant answered the door, and complied with a request to leave the house. The appellant sat on a flower pot outside the front of the house. Constable Talajic remained outside with the appellant, while Constable Abbott went inside to the check the house.
13 Constable Talajic's evidence was that the appellant said, unprompted, 'it's Germaine Garlett'. Constable Talajic asked 'why didn't you tell me this before?' The appellant responded that he didn't want to tell police because he wanted to deal with the matter himself. The appellant said that the deceased was with Germaine Garlett (ts 510 - 511). Constable Talajic was not cross-examined about this evidence.
14 The appellant participated in a video recorded interview with police commencing at about 11.25 pm on 11 October 2013. He said the Beckenham house was his sister-in-law's and he had been boarding at the house for about three months. He described the deceased, who he had last seen a week to a week and a half ago, arriving at the house in the early hours of the morning bruised, bleeding and with ripped clothes. He said that he assisted her to have a shower and change clothes, after which she sat on the couch. The appellant said she started to have a fit and he called the ambulance. He said he understood they were alone in the house at that time.
15 The police officers asked the appellant whether he had assaulted, hurt or caused injuries to the deceased that day. At this point in the questioning, the following exchange occurred:
CORBETT: No I wouldn't do that to her. Some, Germaine Garlett done it to her, 'cause he was there.
DET DYER: Sorry?
CORBETT: Yeah. He was there.
DET DYER: Tell us about this. This is the first we've heard of it.
CORBETT: Germaine Garlett was there - - -
DET DYER: Where?
CORBETT: At the house, fucking with her. Fucking he's a dog cunt, man. He's, he's stealing off me and shit, man, you know.
DET DYER: So Germaine Garlett. Okay. Tell me about this.
CORBETT: He's fucking, he's, he's, he's fucking, he's a[n] animal. He's brainwashed her. You know what I mean?
DET DYER: Mmm. He was with her where, what house? Tell me about this, Rodney.
CORBETT: He, he, he was there, and like, you know what I mean, fucking, she came there early hours of the morning, and like, she came there on her own, and fucking them two was up to, up to no good like, fucking doing something you know what I mean, and like, they like, sort of like, planned this out you know what I mean? They're fucking animals, man.
DET DYER: What do you, okay. So, so where, where, when you say Germaine Garlett was there, was he at the house you were at?
CORBETT: Yeah, he was sneaking around.
DET DYER: Okay. So when, when did he arrive at that house?
CORBETT: Like I said, he was sneaking around.
DET DYER: He was sneaking around? So you told us that [the deceased] arrived early. What about Germaine, how did he get there?
CORBETT: I don't know. He's, he's a sly dog. He used to go with, um, my niece - - - (recorded interview ts 47)
16 The appellant went on to make a number of statements which are difficult to follow, and then responded to questions by confirming that the deceased had arrived at the house alone and that he was alone at the house when she arrived. The appellant then described the deceased staying at the house on Wednesday night to Thursday morning and saying that she was frightened of Germaine Garlett. The appellant said that he saw Mr Garlett when he and the deceased were at a caravan parked outside the house on Thursday morning, but had seen only the deceased when she arrived early on Friday morning.
17 The prosecutor tendered the video recorded interview.
18 In his opening statement to the jury, the prosecutor quoted a number of passages from the recorded interview and said:
The State, of course, says to you that fundamentally what he says in that interview is a pack of lies; that he was the person who inflicted the injuries upon her, and the rest of the story is simply made up (ts 128).
19 Later, the prosecutor referred to the appellant's account of the deceased turning up on his doorstep already injured as 'an outright lie told to avoid the consequences of what he had done' (ts 132). The prosecutor referred to the appellant blaming Mr Garlett, who he said was called Tremaine Garlett. The prosecutor told the jury they would hear from Mr Garlett who would tell them 'it wasn't him ... he didn't do it' (ts 132). The prosecutor anticipated evidence of persons who would say where Mr Garlett was on Wednesday, Thursday and Friday, and said 'it was not him' (ts 132 - 133). The prosecutor said:
So the State says to you that that too is a lie by [the appellant] to blame someone else (ts 133).
20 Following a jury break, the prosecutor continued:
I was talking to you about what [the appellant] had said about who was responsible for what had happened to [the deceased], and he was - you may remember from what I said, he was blaming a Tremaine Garlett, another fellow, for being responsible for those injuries. And what the State says to you about that is that that is a straight out lie; that it was a lie that was spoken by [the appellant] purely for the purposes of avoiding the consequences of what he had done, which was to cause those injuries to [the deceased] (ts 136 - 137).
21 The lie which the prosecutor identified in his opening statement was the statement that Mr Garlett was responsible for the deceased's injuries.
22 Tremaine Garlett gave evidence at trial. He said he had a previous relationship with the appellant's niece and that he would occasionally visit the Beckenham house to visit their son. He said that he did not visit the Beckenham house on the Wednesday, Thursday or Friday, and was staying at his mother's house in Bentley with his siblings and his current partner. Mr Garlett said he remained at his mother's house over that period, apart from a visit to shops in Victoria Park on Thursday. Mr Garlett's evidence was that he knew the appellant through his former partner and the deceased through the appellant. Mr Garlett said that he had never had a sexual relationship with the deceased or touched or assaulted her in any way (ts 432 - 441).
23 Mr Garlett was cross-examined as to his ability to recall what he was doing on the days in question and when he last visited the Beckenham house before the incident. The appellant's trial counsel did not put to Mr Garlett that he had inflicted any of the deceased's injuries.
24 Ms Martin, who was Mr Garlett's partner at the relevant time, gave evidence that she was with Mr Garlett at his mother's Bentley house from Wednesday morning until Friday morning when they saw a report of the incident on the news. Ms Graham, Mr Garlett's mother, also gave evidence that her son was staying at her house on those days and that the only times he and Ms Martin left the house was to go shopping. Both Ms Martin and Ms Graham were cross-examined as to their ability to recall the days in question and whether they were with Mr Garlett at all times during that period.
26 Prior to closing submissions, the trial judge asked the prosecutor whether a 'Zoneff direction' was called for. The prosecutor responded that the evidence 'about the accused man naming Tremaine' was a deliberate lie 'for the purpose of deflecting the investigation from him and him avoiding that act that he had done' (ts 1003 - 1004). The appellant's trial counsel objected on the basis that the alleged lie was not capable of being an 'Edwards lie' as the allegation involved circular reasoning, and the prosecutor did not open on the basis that the lie would be used for that purpose. After hearing submissions, the trial judge indicated that he did not agree with the appellant's position (ts 1023).
27 During the course of further submissions, the prosecutor identified the lie on which he relied as the appellant 'saying that Tremaine Garlett was there' when he wasn't (ts 1111). The trial judge then confirmed his ruling (ts 1113).
28 The prosecutor's closing submissions dealt at some length with the appellant's 'naming of Tremaine Garlett as the perpetrator' (ts 1057). After summarising or quoting the evidence of what the appellant told the police and evidence that Mr Garlett was not involved, the prosecutor said:
So it's an attempt to blame Tremaine for what he did himself, the State says to you. He knows full well Tremaine was not there. He knows full well Tremaine did not do this and when he tells you that it was - through the interview, that it's Tremaine, 'you've got to look at Tremaine'. He tells the police that 'you've got to look at Tremaine', it's a lie. He knows it's a lie and he's telling it for only one reason and that's to deflect the police investigation from himself; indicating what we sometimes call a consciousness of guilt, knowing that he is the one who caused the problem.
So that's what you've got and his Honour will direct you as to how you can deal with that sort of evidence. But he is trying to distance himself, we say, by putting in Tremaine and it wasn't Tremaine and he knew that it wasn't Tremaine (ts 1060).
29 The trial judge gave the jury specific directions about lies, which he told the jury were the telling of an untruth by a person who knew it to be untrue. The trial judge also gave particular directions about the appellant's statement to Constable Talajic that it was Mr Garlett and his statement in the recorded interview that Mr Garlett had 'done it to her, 'cause he was there' (ts 1129). He noted the prosecutor's submission that this was a lie which went to more than the credit of the accused, constituting an implied admission of his implication in some aspect of the offence (ts 1129 - 1130). He told the jury that a lie which was an implied admission of implication in the offence would be affirmative support for the prosecution's case (ts 1130).
30 The trial judge referred to the evidence and submissions which the jury should consider in deciding whether the appellant did lie (ts 1130 - 1131).
31 The trial judge told the jury that they could only take account of a deliberate lie as an admission if satisfied that the lie revealed knowledge of the offence, or some aspect of it (ts 1131).
32 The trial judge then noted the prosecutor's contention that the jury should infer that the motive for the lie was fear of the way the truth would implicate the appellant. He referred to other motives which the appellant may have had to lie. The trial judge told the jury that, if they were satisfied that the appellant had another motive, there would be no question of their being satisfied that there was an implied admission of the sort for which the prosecution contended. The trial judge told the jury that they should consider all the evidence on whether or not there were other reasons for the appellant to have said what he did, and whether he was acting on those other reasons (ts 1131).
33 The trial judge also told the jury that an alleged admission constituted by the telling of a lie may be considered with other evidence and, for that purpose did not have to be proved to any particular standard. However, if it was an indispensable link in a chain of evidence necessary to prove guilt, the alleged admission must be proved beyond reasonable doubt before the appellant could be convicted (ts 1131 - 1132).
34 The following general legal principles as to the use which a jury may make of a lie told by an accused were established by the decision of the majority in Edwards:[3]
(a) reveals a knowledge of the offence or some aspect of it; and
(b) was told because the accused knew that the truth of the matter about which he or she lied would implicate him or her in the offence, or because of a realisation of guilt and a fear of the truth (211).
35 Ultimately, whether the preconditions to a lie being evidence of an accused's guilt are satisfied is a question of fact to be determined by the jury.[4] As Buss JA noted in Hedgeland:
An Edwards direction is ordinarily essential if the State relies on a lie told by the accused as evidence of his or her guilt ... there is a natural tendency for a jury to think that, if an accused is lying, it must be because he or she is guilty. The rationale for giving an Edwards direction is the avoidance of a perceptible risk of a miscarriage of justice if the jury were to misuse the lie so as to make a finding of guilt by impermissible reasoning. There is no precise verbal formula for the direction. A trial judge should tailor the direction to the circumstances of the case [85].
However, the trial judge should not direct the jury that they may use evidence of an alleged lie as evidence of guilt if the evidence relied on by the State is not capable of satisfying those preconditions.[5]
36 An imperfect Edwards direction will not automatically result in the quashing of a conviction. It is not enough to show that it would have been better if the trial judge had given an appropriate direction concerning the effect of lies. Nor is it sufficient to identify a possibility that the jury may have reasoned that the accused was guilty because he had lied to the police. To establish a miscarriage of justice, an accused must establish that it is a reasonable possibility that the failure appropriately to direct the jury may have affected the verdict.[6]
37 The first reason for the appellant's contention that his statements about Mr Garlett were not capable of being lies evidencing guilt concerns their allegedly equivocal nature. The appellant submits that:
[A]s ultimately suggested by [the appellant] in his record of interview he was, arguably, not saying Tremaine Garlett was present on the relevant night, but on the night prior to that. On that basis, the lie itself was equivocal and was capable only of being a lie relevant to credibility.
The appellant's statement did not unequivocally suggest Tremaine Garlett was the offender. It was open to the jury to find [the appellant] was contending that whilst Tremaine Garlett was on the premises, it was on a previous night. The appellant was confused, as was clearly evidenced via the VROI.[7]
38 These submissions go to the question of whether the lie alleged by the State should have been actually accepted by the jury as evidencing guilt, rather than whether the lie was capable of being used for that purpose. The submissions fail to recognise that whether the preconditions identified in Edwards are satisfied is ultimately a question of fact for the jury. A statement will not be incapable of meeting those conditions because the appellant was 'arguably' saying something different or it was 'open' to the jury to so find.
39 It was open to jury to be satisfied that the statement, 'Germaine Garlett done it to her, 'cause he was there', was an unequivocal statement placing Mr Garlett at the Beckenham house on the night in question and indicating that he assaulted the deceased. It was open to the jury to regard later statements indicating that Mr Garlett was present on Thursday morning as a retreat from that position, which was inconsistent with the appellant's earlier statements. In any event, whether or not the original statement was regarded as indicating that Mr Garlett was present on Wednesday, Thursday or Friday and had inflicted the deceased's injuries, the statement could be demonstrated to be a lie by reference to the evidence of Mr Garlett, Ms Martin and Ms Graham that Mr Garlett was not at the Beckenham house on any of those days. How the appellant's statements to police were to be understood was a matter for the jury.
40 The appellant submitted that, if the lie related to Mr Garlett's presence at the Beckenham house other than on the Friday morning, it was not capable of evidencing guilt because it did not reveal knowledge of the offence or some aspect of it. He submitted that, because the statement was at least equivocal about when Mr Garlett was present on the Friday morning, it was not capable of evidencing guilt.
41 I do not accept that submission. The statement that Mr Garlett 'done it to her, 'cause he was there' is clearly capable of being seen as a statement about a material matter which reveals the appellant's knowledge of the offence or some aspect of it. The statement reveals knowledge of the identity of the person who inflicted the deceased's injuries. The statement is capable of revealing that knowledge even if it did relate to Mr Garlett's presence at the Beckenham house on Thursday morning rather than Friday morning. For example, a statement to the effect that Mr Garlett was at the Beckenham house on the Thursday morning and he was the person who inflicted the deceased's injuries was still capable of being seen as a statement revealing knowledge of the offence or some aspect of the offence.
42 The appellant's statements were not so equivocal as to be incapable of satisfying the preconditions identified in Edwards. It was open to the jury to conclude that the appellant was saying that Mr Garlett was present at the Beckenham house on Wednesday, Thursday or Friday, and that Mr Garlett had inflicted the deceased's injuries. On appeal, counsel for the appellant accepted that it was open to the jury to find that this statement was a lie (appeal ts 3 - 6).
43 The appellant submits that an 'Edwards lie' needs to be 'such that it was seen to have implicated the appellant in the offence or some aspect of it'.[8] The appellant submits that his comments do not implicate him in the offence or any aspect of it because, by suggesting Mr Garlett was the offender, he was merely proffering his own innocence.
44 It is not the appellant's statement which must implicate him in the offence. The premise for the Edwards direction is that the accused person makes a false statement because the truth would implicate the accused in the charged offence.
45 The appellant told the officers that 'Germaine Garlett done it to her, 'cause he was there' in response to a question about whether the appellant had caused her injuries. It was open to the jury to conclude, by reference to other evidence, that the statement was false because Mr Garlett was not at the Beckenham house at any relevant time. It was open to the jury to infer that the appellant deliberately lied about seeing Mr Garlett at the house and implicating him in the offence. It was open to the jury to regard that as a lie which an innocent person would not tell. That is, the jury could take the view that an innocent person would not have made a deliberately false allegation that another person had committed the crime.
46 If the jury concluded that an innocent person would not have falsely accused Mr Garlett of being present and involved, they could infer that the appellant lied because he perceived that a truthful answer to the officer's question (to the effect that the appellant had caused the deceased's injuries) would implicate him in the offence. The lie would be evidence of guilt because of the inference that the appellant lied because he was involved in inflicting the deceased's injuries.
47 Whether the evidence actually supported the chain of reasoning outlined in the previous paragraph was a question of fact for the jury to determine. However, because it was open for the jury to reason in that manner, they were correctly given a direction as to the preconditions for doing so, identified by the majority in Edwards.
48 The appellant complains that the trial judge's direction failed to clearly identify the lie and specify for the jury that aspect of the offence to which the lie attached. The appellant complains that the trial judge did not meaningfully inform the jury how the lie implicated the appellant in the offence.
50 The trial judge began this aspect of his direction by identifying the lie as being the appellant's statement to Constable Talajic that it was Mr Garlett and his identification of Mr Garlett in the video recorded interview as the person who had 'done it to her because he was there' (ts 1129). The same lie had been identified by the prosecution in both its opening and closing submissions to the jury. While the appellant's experienced trial counsel objected to the jury being given an Edwards direction, he did not complain about the manner in which the direction identified the lie. That strongly suggests that the manner and context in which the direction was given was such as to effectively identify the alleged lie to which the direction related.
51 The trial judge explained that the jury must be satisfied that the appellant made a deliberately false statement about Mr Garlett out of fear that the truth would implicate the appellant in the offence, and not for some other reason. The aspect of the offence to which the statement related was clearly who had inflicted the deceased's injuries. In my view, the direction adequately warned the jury not to adopt an impermissible chain of reasoning, namely that the appellant must have been guilty of the offence merely because he had lied about Mr Garlett's involvement. Otherwise the direction contained the elements which have been identified as ordinarily necessary in an effective Edwards direction.[9]
52 The appellant submits that his statement that Mr Garlett was responsible for the deceased's injuries was inextricably interwoven with the appellant's denial of his own guilt. It is submitted that to suggest that the appellant's statement implicating Mr Garlett was false was to suggest that his own denial of guilt was false. The appellant says that any suggestion that his denial of guilt can in some way be found to be a lie which may assist a jury to find him guilty is an obviously circular argument and is erroneous. He contends the trial judge fell into this type of error.
53 The State correctly accepts that, before a lie can be evidence of guilt, the lie must be demonstrated other than by proof of guilt of the charged offence.[10] A statement by an accused cannot be a lie evidencing guilt if the jury must assume that an accused has committed the charged offence for the purpose of deciding whether the statement is a lie.[11]
54 Zheng v The Queen[12] provides an example of impermissible 'circular' or 'bootstraps' reasoning. In that case police officers gave evidence that they observed Mr Zheng on two occasions in a car park, receiving a plastic bag containing heroin from another person and placing the bag in the boot of a car. The prosecutor was allowed to argue that Mr Zheng's statements - that he was in the car park cleaning cars and only spoke casually to the person - were lies evidencing guilt. The court held that the statements were not capable of establishing consciousness of guilt. The alleged lie could not logically be established without first reasoning that Mr Zheng had acted in the manner the police witnesses described, where their evidence was the only evidence that he so acted. It was held that lies should not have been left to the jury as evidence of guilt at all in relation to two counts, where evidence of that conduct was the only evidence against Mr Zheng which the jury was required to consider.
55 Similarly, in Chen v The Queen,[13] a judge was found to have erred in directing a jury that they could treat, as lies evidencing guilt, a statement by an accused charged with fraud offences that certain transactions were real and genuine. This was on the basis that the practical reality of the case was that, if the jury accepted that there were no genuine transactions, they would inevitably find that the offences were proved. Once the jury were satisfied of the falsity of the applicant's account concerning this issue, there was nothing else in dispute.
56 The point is also illustrated by a number of cases in which an allegation of 'bootstraps' reasoning was rejected.
57 In Aubertin,[14] out-of-court statements by an offender charged with sexual offences that it was another person who engaged in cunnilingus with the complainant as she slept were found to be capable of evidencing guilt. No circularity was found to be involved. The statement could be found to be a lie on the basis of Mr Aubertin's evidence at trial that sexual penetration occurred. Further, establishing the falsity of Mr Aubertin's out-of-court statements did not depend on acceptance of the complainant's evidence of the offences.
58 Lane was a Crown appeal where the trial judge was found to be in error in refusing to allow the prosecution to rely on alleged lies by a mother charged with the murder of her newborn child as evidencing guilt. The alleged lies consisted of statements that she had given the child to its father or a family in Perth. Simpson J (with whom Howie AJ agreed) regarded it as significant that the evidence relied on to establish that the statements were lies was not co-extensive with the evidence the prosecution relied on to establish its circumstantial case of murder. It was not correct to say that the jury could only find the statements to be a lie if they accepted the entirety of the prosecution case.[15]
59 The appellant relies on the decision of the New South Wales Court of Criminal Appeal in Wang v The Queen.[16] Mr Wang was charged with murdering his two flatmates. In statements to police and his evidence at trial, he alleged that a group of four men killed the victims and forced him to assist with dumping their bodies. The trial judge in that case was found to have erred in directing the jury that they could use Mr Wang's statements as evidence of a consciousness of guilt. However, this finding was premised on the court's conclusion that:
In the circumstances of this case it was necessary for the jury to find that the appellant had committed the murders in order to find that his 'Gang of Four' statement was a lie.
60 By contrast, in the present case the evidence relied on to establish the appellant's statements were lies - the evidence of Mr Garlett, Ms Martin and Ms Graham that Mr Garlett was not at the Beckenham house at any material time - was independent of the other evidence relied on by the State to establish the appellant's guilt. Logically, Mr Garlett's, Ms Martin's and Ms Graham's evidence could satisfy the jury of the falsity of the appellant's statement that Mr Garlett was at the house and was involved in inflicting the deceased's injuries. It was not necessary for the jury to first assume or determine that the appellant had killed the deceased or to reject his denial of his own guilt before finding that his statements about Mr Garlett's presence and involvement were lies. The use of the appellant's statements which was advocated by the State's submissions to the jury, and left open to the jury by the trial judge's direction, did not involve any impermissible circularity.
61 It was open to the jury to conclude that the appellant had deliberately lied to police about the material circumstance of Mr Garlett's presence at the Beckenham house and involvement in inflicting the deceased's injuries. The jury could reach that conclusion without first assuming or determining that the appellant had killed the deceased and without rejecting his denial of his own guilt. It was also open to the jury to conclude that the appellant had told the lies implicating Mr Garlett because he was involved in inflicting the deceased's injuries. The jury could have inferred that the appellant told the lies because he feared that the truth - that he was involved in inflicting the deceased's injuries - would implicate him in the offence. In that manner the lie was capable of evidencing the appellant's guilt.
62 Whether the evidence actually established any of the above matters was a question of fact for the jury. However, where the evidence was capable of establishing those matters and the State asserted that the jury should reach those conclusions, it was appropriate for the trial judge to give an Edwards direction. The trial judge's direction was adequate. Ground 1 is not established.
63 Ground 2 complains that the trial judge erred in leaving to the jury an 'Edwards lie' that the prosecutor had not previously identified. There is no merit in this ground. As noted above, the prosecutor's opening identified the alleged lie and the evidence which would be adduced to establish that it was a lie. Contrary to the appellant's submissions, there was nothing 'Delphic' about the prosecutor's opening statement that the appellant had told the lies 'purely for the purposes of avoiding the consequences of what he had done', which was to cause the deceased's injuries. The prosecutor's opening clearly indicated that the State would rely on the alleged lies as evidencing the appellant's guilt, and not merely going to credit. Leave to appeal should be refused on this ground.
64 The appellant does not impugn the sentence of life imprisonment, but submits that the minimum term of 18 years' imprisonment imposed by the trial judge was manifestly excessive.
65 The trial judge found the following facts for the purposes of sentence.
66 The deceased was an 18-year-old female, 166 cm tall, who weighed 57 kg. The appellant was 28 years old, and significantly taller and heavier than the deceased.
67 Between 2.00 am and 7.50 am on Friday, 11 October 2013, the appellant was at the Beckenham house, where he was living. The appellant had earlier been joined by the deceased. They were the only two people at the house.
68 The appellant and the deceased had been in a relationship for some time. It had been a profoundly troubled and volatile relationship of an on-again, off-again character, featuring drug taking and violence. There had been 'break-ups and re-unitings'.
69 On the night in question the deceased had come to the Beckenham house. By the time of the events that caused the deceased's death, both the appellant and the deceased had consumed methamphetamine. The appellant had also consumed cannabis.
70 Sometime on the morning of Friday, 11 October 2013, close to the time of the emergency call made at 7.50 am, the appellant hit the deceased repeatedly inside the Beckenham house. The trial judge did not find that any of these blows was inflicted with a weapon. The blows were, in combination, of substantial severity. The appellant was in a rage at the time they were inflicted.
71 The cause of the deceased's death was head injury in the form of subdural haematoma, the result of one or more blows to her head. The deceased suffered these blows over a prolonged period of time.
72 The degree of force used to cause the head injuries was not sufficient to cause any skull fracturing, although the deceased did suffer one, or possibly two, broken ribs, and a fracture to one of her fingers.
73 The trial judge did not find that the appellant intended to kill the deceased at any point. He found that the appellant intended to cause the deceased serious injuries that objectively were readily identifiable as of a kind which would endanger or be likely to endanger life. The trial judge was not satisfied there was any premeditation or planning in the appellant's offending.
74 The appellant was very concerned about what had happened. He sought to clean the deceased, and took her to a seat in the lounge room in the house.
75 At 7.50 am, the appellant rang emergency services. The emergency call shows the appellant to have been very much concerned at the deceased's unresponsive condition. Ambulance and police personnel attended not long afterward, as the appellant had repeatedly demanded.
76 The deceased was taken to Royal Perth Hospital and, on 12 October 2013, she was certified life extinct.
77 A post-mortem examination was conducted together with a neuropathological examination. The post-mortem showed that the deceased had sustained multiple injuries most notably to her head and neck, her right and left arms, and her trunk. The examination showed that multiple blows to the head had been of sufficient severity to bring on swelling of the brain, which was sufficient to cause the death of the deceased.
78 The trial judge made the following findings of fact in relation to the appellant's personal circumstances.
79 The appellant had a most dysfunctional upbringing, which likely resulted in desensitising him to violence, leading him to believe that violence was an acceptable method to resolve conflict, and normalising substance abuse for him.
80 The appellant was educated to Year 10. His school history was a very difficult one with indications he had been bullied and had difficulties with learning. There was reason to be concerned about cognitive limitations that might interfere with the benefits which the appellant could receive from rehabilitation programs.
81 The appellant had undertaken brief periods of employment, working as a bartender, in a scrap yard and gardening. He was unemployed at the time of the offence. While on remand, the appellant had been working in the prison laundry. He aspired to work in construction on release.
82 The appellant reported four intimate relationships, one of which resulted in a son. The most recent relationship was with the deceased. The appellant had a history of considerable violence in a number of his relationships, including that with the deceased. Most of those relationships involved substance abuse and the relationship between the appellant and the deceased was, in significant part, based on methamphetamine use.
83 The appellant had a troubling history of substance abuse, including cannabis, methamphetamine, heroin and alcohol. The appellant was affected by cannabis and methamphetamine at the time of the offence.
84 The appellant suffered from a number of physical ailments related to his substance use and what was referred to in the psychological report as his sexual lifestyle, for which he had refused treatment. The appellant was being treated for depression with anti-depressant medication. Psychological testing of the appellant indicated a high range score for psychopathy.
85 There was no indication of a mental illness that contributed to the appellant's offending.
86 The appellant had a significant criminal history of 28 convictions, comprising:
The penalties imposed for this body of offending included six terms of imprisonment, one of which was suspended. The longest of those terms, 9 months' immediate imprisonment, was for the offences of dangerous driving occasioning grievous bodily harm committed on 21 July 2011.
87 The pre-sentence psychological report indicated that the appellant's risk of violent re-offending, including in an intimate relationship, was high. Identified risk factors were:
88 In setting out the circumstances of the offending and the appellant's personal circumstances, the trial judge identified a number of aggravating and mitigating factors.
90 In view of the duration and severity of the appellant's attack on the deceased, the trial judge did not consider there to be a large difference for sentencing purposes between the intention he found and an intention to cause death. He concluded overall that this was a serious case of murder.
91 The trial judge identified as mitigating factors the appellant's indications of remorse, victim empathy and acceptance of responsibility, which must be weighed in view of their belatedness; and the appellant's dysfunctional upbringing.
92 Having referred to the above matters, the trial judge imposed a life sentence with a minimum term before eligibility for parole of 18 years' imprisonment. The sentence was backdated to 12 October 2013 to take account of time spent in custody on remand.
93 An allegation of manifest excess is an allegation of implied error. Such an error may be inferred where, although it is not possible to discover the exact nature of the error, the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred.[17]
94 Appellate intervention on the ground of manifest excess or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle.[18]
95 To determine if a sentence is manifestly excessive it is necessary to view it in light of the maximum penalty prescribed by law for the offence, the standards of sentencing customarily observed for that type of offence, the level of seriousness of the circumstances of the offending and the personal circumstances of the offender.[19]
96 The mandatory penalty for murder by an adult is life imprisonment unless that sentence would be clearly unjust given the circumstances of the offence and the offender, and the offender is unlikely to be a threat to the safety of the community when released from imprisonment.[20] When imposing a life sentence, the court may either order that the offender never be released or set a minimum period of at least 10 years that the offender must serve before being eligible for release on parole.[21] The Act does not provide for an upper limit where the court sets a minimum term.
97 A non-parole period is the minimum period of imprisonment that justice requires the offender to serve. It mitigates the offender's punishment in favour of rehabilitation through conditional freedom after imprisonment for the minimum period. The principles concerning the fixing of a minimum term for the offence of murder are well established and need not be repeated here.[22]
98 In considering this issue, it is important to remember, as has frequently been observed in this court,[23] that the guidance afforded by comparable cases is flexible rather than rigid. The mere fact that a non-parole period is within the range of other non-parole periods imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact a non-parole period is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
99 A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether a sentence (including a minimum term) is manifestly excessive. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.
100 When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
101 It is not uncommon for minimum terms in the range of 17 - 23 years to be imposed for single offences of murder,[24] including in cases where there has been a plea of guilty and/or an absence of any intention to kill.[25] The appropriate sentence in any particular case will depend on a careful and detailed consideration of all the circumstances of the offence and offender and all applicable sentencing principles.
102 I have read and considered the detail of the cases referred to in the previous paragraph. All of those cases have one or more distinguishing features from the present. However, in my view, the sentence imposed in the present case is broadly consistent with the sentencing standards reflected in these decisions considered as a whole, having regard to all the circumstances of the offenders and offences and all relevant sentencing principles.
103 In particular, I note that minimum terms of 17 - 19 years' imprisonment imposed on mature offenders in a domestic situation after pleas of guilty were held not to be manifestly excessive in Rosewood, Silva and Stinson. While each case can be distinguished from each other and the present case, the general approach which they reflect is not inconsistent with the sentence imposed in the present case. While lower minimum terms have also been imposed in some cases,[26] those cases do not establish the upper limit of a primary judge's sentencing discretion.
104 The appellant refers to a number of particular cases in his written submissions. Most of those cases did not involve the scrutiny by this court of sentences imposed under the current regime, and are of no material assistance. The remaining decisions are Goodwyn v The State of Western Australia[27] and Prestidge.
105 In Prestidge, a minimum term of 17 years' imprisonment was fixed for an offender convicted after trial of murdering his brother-in-law, who had committed acts of domestic violence against the offender's sister. In 2002, the offender struck the victim twice to the head with a weapon, and then hid the victim's body under bedding and drove the victim's car to the airport. He was found to have intended serious bodily injuries which would be likely to endanger his victim's life. The offender left Australia and did not return until he was extradited in 2011. The offender, who had a significant prior record, was 41 years old at the time of offending and 51 at the time of sentence. This court rejected the offender's argument that the minimum term was manifestly excessive.
106 The level of violence in Prestidge was quite different from that employed by the appellant in the present case. The appellant's violence was much more sustained, although it did not involve the use of a weapon. The antecedents of the offender in Prestidge were broadly consistent with those of the appellant. The minimum term imposed was 17 years, compared to 18 years in the present case. The fact that the offender in Prestidge fled the jurisdiction while the appellant handed himself into police after a relatively short period is significant, but does not mean that the sentences imposed in the two cases are not broadly consistent.
107 In Goodwyn, the offender stabbed a male friend of his former partner while in a drunken rage at her home. The offender was aged 35 at the time of offending and 37 at the time of sentence. He had a background of stable employment and only a minor criminal record which did not include violent offences. He was convicted of murder after trial, on the basis of an intention to inflict an injury on his victim which endangered or was likely to endanger life. The court refused leave to appeal against the sentence on the ground that a minimum term of 15 years was manifestly excessive.
108 In Goodwyn the level of violence was less sustained but more likely to result in death. Unlike the appellant, Mr Goodwyn made no effort to provide any real assistance for the deceased after stabbing him. However, Mr Goodwyn's antecedents were significantly better than the appellant's, and the deceased in the present case was more vulnerable than in Goodwyn.
109 It is well established that appealable error will not be established by pointing to one or two cases which are said to be more or less serious and in which similar sentences were imposed, or by pointing to one or two cases which are said to be similar and in which greater or lesser sentences were imposed. That is particularly so in considering cases, such as Prestidge and Goodwyn, where an appeal on grounds of manifest excess is dismissed, or leave to appeal on that ground is refused. Generally such a decision will establish that the sentence imposed at first instance was not manifestly excessive, or was not arguably manifestly excessive. However, the decision on appeal will not establish the sentence imposed to have been appropriate or establish the upper range of the sentencing discretion.
110 Although not in the most serious category, the current offence was not at the lower end of the scale of seriousness of offences of its type. Aggravating features of the offence included the sustained nature of the attack on the deceased, when the deceased was in a vulnerable position, in a manifestation of domestic violence which characterised the relationship.
111 Considerations of general deterrence are significant in cases of this kind, particularly where domestic violence is involved. In Silva, Buss JA, with whom Mazza JA agreed, approved of the following statement at first instance by Jenkins J:
The law is clear that disputes between partners, no matter how emotionally hurtful, must be resolved peacefully. People must understand that marriage is not a licence to treat a spouse as a chattel and violence in the course of a marriage breakdown will be met with deterrent sentences.
It is obvious that the minimum term must recognise the high value that the Western Australian community places on a person's life and a person's right to live without violence from their partner. Domestic violence continues to be a significant cause of violent death and serious injury in our community. The courts must impose sentences which continue to reflect the community's abhorrence and intolerance of such offending, particularly where it results in the death of the victim [42].
112 I also agree with those observations, which apply equally to disputes in de facto relationships such as that between the appellant and the deceased.
113 It may be accepted that there were a number of aggravating factors - such as an intention to kill, the use of weapons, substantial planning or a failure to seek medical assistance - which were not established in this case. However, the absence of an aggravating factor is not mitigatory.
114 The mitigating circumstances arising from the appellant's personal circumstances were limited to his belated expressions of remorse, victim empathy and acceptance of responsibility, and his dysfunctional background. He did not have the benefit of mitigating factors such as prior good character, a plea of guilty or youth. He was assessed as presenting a high risk of future violent offending, including in intimate relationships.
115 Having regard to all of the above considerations, the minimum term of 18 years' imprisonment imposed on the appellant was not manifestly excessive having regard to the nature and seriousness of the offence, the circumstances of the offender and all other relevant sentencing factors. Leave to appeal should be refused.
116 Leave to appeal has already been granted on conviction appeal ground 1. For the above reasons, conviction appeal ground 2 and the sentence appeal ground are not reasonably arguable. Leave to appeal should be refused on those grounds and the appeals dismissed.
[1] Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193.
[2] Zoneff v The Queen [2000] HCA 28; (2000) 200 CLR 234.
[3] See also Coates v The State of Western Australia [2009] WASCA 142 [151] - [158]; NAD v The State of Western Australia [2013] WASCA 2 [60] - [66]; Hedgeland v The State of Western Australia [2013] WASCA 97 [82] - [83], [86], [213] - [216], [218] - [220].
[4] Hedgeland [84]; R v Lane [2011] NSWCCA 157; (2011) 221 A Crim R 309 [60].
[5] Zoneff [16]; Hedgeland [217].
[6] Hedgeland [87], citing Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1 [60].
[7] Appellant's submissions, pars 5 - 6.
[10] Aubertin v The State of Western Australia [2006] WASCA 229; (2006) 33 WAR 87 [68] - [70].
[11] R v Sirillas [2006] VSCA 234 [19].
[12] Zheng v The Queen (1995) 83 A Crim R 572, 577.
[13] Chen v The Queen [2015] NSWCCA 122 [59] - [60].
[16] Wang v The Queen (unreported NSWCCA, 11 February 1994).
[17] House v The King [1936] HCA 40; (1936) 55 CLR 499, 505.
[18] R v Pham [2015] HCA 39; (2015) 90 ALJR 13 [28].
[19] The State of Western Australia v Smith [2015] WASCA 87 [163].
[20] Section 279 of the Criminal Code (WA).
[21] Section 90 of the Sentencing Act 1995 (WA).
[22] See Pedersen v The State of Western Australia [2010] WASCA 175 [40] - [46].
[23] See, for example, Smith [166] - [169].
[24] Pedersen; The State of Western Australia v O'Kane [2011] WASCA 24; Cockram v The State of Western Australia [2011] WASCA 179; Johnston v The State of Western Australia [2012] WASCA 18; Lee; Silva v The State of Western Australia [2013] WASCA 278; Prestidge v The State of Western Australia [2014] WASCA 16; Rosewood v The State of Western Australia [2014] WASCA 21; Stinson v The State of Western Australia [2014] WASCA 72; Mack v The State of Western Australia [2014] WASCA 207; Angliss v The State of Western Australia [2015] WASCA 8; Smith; Zwerus v The State of Western Australia [2015] WASCA 174; and cases referred to in those authorities.
[25] Pedersen; O'Kane; Johnston; Prestidge; Rosewood.
[26] See Atherden v The State of Western Australia [2010] WASCA 33 (14 years on resentence) and Goodwyn (15 years found not to be arguably manifestly excessive).
[27] Goodwyn v The State of Western Australia [2013] WASCA 141; (2013) 45 WAR 328.
Angliss
The State of Western Australia
(2003) 217 CLR 1
(1993) 178 CLR 193
(2000) 200 CLR 234
(2006) 33 WAR 87
(2013) 45 WAR 328
(2015) 90 ALJR 13
(1936) 55 CLR 499