DPP v Lawson & Ors

2 Almost in accordance with tradition, an issue has now arisen about post-offence conduct in the form of lies in statements to police[2] the Crown wishes to put before the jury as implied admissions of guilt by each of the three accused.

3 On 25 July 2011, with their solicitor present, each accused went to the St Kilda Road Police Complex and proffered a document purporting to be a statement by them and which represented their account of the incident which occurred on 3 July 2011 at the Crown casino. Each document was unsworn and unsigned but each accused appeared to adopt the document as their account.

4 As is clear from earlier rulings, the essential events of the evening of 3 July 2011 at Crown casino are recorded by closed-circuit television (CCTV) which each accused can be taken to have realised was occurring, though whether they were conscious of that throughout the incident is unknown. The lies the Crown say were told by each of them relate to the incident and to the conduct of the deceased man Anthony Dunning during the course of it. Mr Tinney SC referred to these lies in opening the prosecution case to the jury but without asserting that they amount to any form of implied admission of guilt.

5 As to Lawson, he said that Mr Lawson told the following lies:[3]

Mr Dunning while still on his feet became abusive and threatening to security staff and offered to fight them; the lie that Mr Dunning struggled violently and was verbally abusive throughout the time he was on the ground; the lie that he, the accused, at no time had his hands anywhere near the throat of Mr Dunning while they were on the ground.

6 As to Sanderson he said that Mr Sanderson lied in the following respects:[4]

In his case the lies include: the lie that Mr Dunning at any time before Ms Ferguson or Mr Anderson were taken to the ground became physically or verbally aggressive or threatening towards security staff and offered or threatened to fight them; the lie that Mr Dunning became abusive and aggressive after he realised his friends were on the ground; the lie that Mr Dunning struck Sanderson above the right eye or anywhere; the lie that Mr Dunning struggled and was verbally abusive throughout the time he was on the ground; and the lie that he could not see where the accused Lawson's hands or arms were when the accused Lawson was on top of Mr Dunning on the ground.

These lies included the lie that Mr Dunning struggled violently throughout the time he was on the ground; the lie that Mr Dunning was continually told to calm down and stop struggling while he was on the ground; the lie that the accused Lawson at no time had his arms or hands around the throat or neck of Dunning while laying on the ground.

8 Counsel for each accused has submitted that I should not permit the Crown to rely on these alleged lies as amounting to implied admissions.

9 In Ciantar, the Court of Appeal said:[6]

So, in a case where only one charged offence is to be left to jury, the Crown may seek to rely on post-offence conduct as evidence of consciousness of guilt for the purposes of one or a number of issues, thus:

(a) the Crown may seek to rely on the post-offence conduct as evidence of consciousness of guilt of the actus reus; or

(b) the Crown may seek to rely on the post-offence conduct as evidence of consciousness of guilt to prove intent or mens rea; or

(c) the Crown may seek to rely on the post-offence conduct to negative possible defences or justifications (for example, self-defence, defensive homicide, manslaughter, self-defence, duress, or sudden extraordinary emergency); or

(d) the Crown may seek to rely on the post-offence conduct for a combination of two or more of the foregoing purposes.

10 The prosecutor has identified (a) and (c) as being the basis on which he seeks to put these matters before the jury.

11 Indeed, any lies which I permitted the Crown to rely on could, in the case of Lawson and Sanderson, only go to the element of unlawfulness and not dangerousness or causation. Dangerousness in manslaughter is an objective element and the issue of causation has not been argued on the basis of whether the accused committed acts which had the potential to cause the death of Anthony Dunning but rather whether the Crown can prove beyond reasonable doubt that they did. In the case of Vigo, charged with assault, such lies may go to the element of the unlawfulness of his application of force to the deceased man Dunning.

12 The Court of Appeal said in Ciantar:[7]

Plainly, however, it is necessary to keep in mind the controls which customarily apply to the use of evidence of consciousness of guilt as prescribed in Edwards. Post-offence conduct is not to be left to a jury as evidence of consciousness of guilt unless it has first been precisely identified together with the circumstances and events that are said to indicate that by engaging in the conduct the accused demonstrated a consciousness of having committed the offence which is charged. The judge must also be satisfied that the post-offence conduct when taken in conjunction with the circumstances and events so identified is capable of demonstrating such a consciousness of guilt.

13 If these lies are left to the jury they will have to determine whether a lie was told because the accused recognised that the truth would reveal his guilt or whether it was told for some other reason. The issue before me is not whether there is an innocent explanation for what was said to be a lie but rather whether there is any evidence on which the jury could conclude in each case that the particular utterance was in fact a lie. As Winneke P said in Russo:[8]

Whether a "lie" can be relied upon to prove guilt (as distinct from going to "credibility") must ultimately be determined according to an objective appraisal of the manner in which the evidence is open to be used by the jury. If evidence of lies or conduct is capable of going only to the credit of the accused, it will ordinarily be a misdirection to instruct a jury that they are entitled to use the evidence in proof of guilt; or that it is capable of forming part of the Crown's circumstantial case. If, on the other hand, the evidence is capable of being used as an implied admission of guilt, then careful directions to the jury as to how they can, and cannot, use such evidence will need to be given in accordance with Edwards v. R.[9] (citations omitted).

14 An issue in this case is whether the alleged lies in this case fall into the first category of lies described by Redlich J in Lam as follows:[10]

Where there is evidence upon which a jury may find that an assertion of fact by an accused which relates to a material issue is false, the alleged lie may warrant separate consideration as a lie evidencing consciousness of guilt. This is to be contrasted with a lie which consists of a broad denial of guilt which may only be demonstrated to be false by proof of the accused's guilt of the crime charged. As was stated in R v Gionfriddo, and affirmed in The Queen v Smith,[11] such a lie cannot assist in proof of guilt "for it to do so would be for the prosecution to lift itself by its own boot straps."[12]

15 There is a further aspect of this consideration which does not appear to me to have been the subject of submissions by the parties but which is an important consideration. In Edwards v The Queen[13], Deane, Dawson and Gaurdon JJ said:

But ordinarily a lie will form part of the body of evidence to be considered by the jury in reaching their conclusion according to the required standard of proof. The jury do not have to conclude that the accused is guilty beyond reasonable doubt in order to accept that a lie told by him exhibits a consciousness of guilt. They may accept that evidence without applying any particular standard of proof and conclude that, when they consider it together with the other evidence, the accused is or is not guilty beyond reasonable doubt.

In considering that in R v Laz[14] the Court of Appeal concluded that:

... however widely one may use lies established by the evidence at trial, one could not assert properly to the jury, nor could the judge leave it open to them to infer, that lies established by their ultimate conclusions in the case were to be used as a consciousness of guilt of each of the two counts for the purpose of reaching the very same conclusion as to ultimate guilt. That truly would involve a "boot-straps" argument and could not be countenanced upon any interpretation of Edwards' case or any other case: see R. v Gionfriddo (1989) 50 A. Crim. R. 327 at 332-3, as referred to in R. v Tadic (unreported, Court of Criminal Appeal, 31 August 1993) at 39; but cf. Edwards at 210.

16 Thus, I take the position to be that if a statement made by an accused which is said to be a lie can only be established to be so by proving guilt of the offence, or an element of it, then the asserted lie should not be left to the jury as evidence of post offence conduct amounting to an implied admission of guilt because there would be no probative utility in doing so.

17 I turn then to the individual lies and the arguments about each of them. Before doing so, I make the observation at the outset that each of the statements of the accused concern what they say about the conduct of the deceased man, Anthony Dunning. As such those statements go directly to the element of unlawfulness in both the offence of manslaughter against Lawson and Sanderson and assault against Vigo.

18 As I earlier outlined, the lies claimed to be told by Lawson are:

Mr Dunning while still on his feet became abusive and threatening to security staff and offered to fight them; the lie that Mr Dunning struggled violently and was verbally abusive throughout the time he was on the ground; the lie that he, the accused, at no time had his hands anywhere near the throat of Mr Dunning while they were on the ground.

19 The first two assertions about Dunning's conduct, in my opinion, fall into the circulatory category referred to in Laz. In short, that is because, if the jury conclude that Dunning was not abusive and threatening, or was not struggling then there was no possible lawful justification and they must find the element of unlawfulness established. To find then, after reaching that conclusion, that he told a deliberate lie about it, is of no bearing to that conclusion. Although the jury may find that Dunning was abusive or threatening and still find the accused guilty, this does not alter the reverse.

20 The third matter relied on by the Crown was the utterance by Lawson in his statement that:

The accused, at no time had his hands anywhere near the throat of Mr Dunning while they were on the ground.

The footage shows that I had my arms around Mr Dunning's head. I was holding his arm close to my chest and his hands are at the base or rear of his ear. Mr [sic] hands and arms were nowhere nears Mr Dunning's throat.

22 However that passage should be corrected, the jury could never be satisfied, in my opinion, that what was occurring was that Lawson was telling a deliberate lie as opposed to interpreting what he recalled being shown when he saw the CCTV footage. I would not permit the Crown to rely on this as an implied admission.

23 In the case of Sanderson, some similar considerations apply. The lies are said to be:

That Mr Dunning at any time before Ms Ferguson or Mr Anderson were taken to the ground became physically or verbally aggressive or threatening towards security staff and offered or threatened to fight them;

That Mr Dunning became abusive and aggressive after he realised his friends were on the ground;

That Mr Dunning struck Sanderson above the right eye or anywhere; the lie that Mr Dunning struggled and was verbally abusive throughout the time he was on the ground;

As with Lawson, in my opinion the only way that the jury could conclude these were lies is by rejecting Sanderson's defence of self defence which, assuming by then they were satisfied on the issue of causation, would lead to a verdict of guilty.

The (alleged) lie that he could not see where the accused Lawson's hands or arms were when the accused Lawson was on top of Mr Dunning on the ground.

25 The jury would be entitled to conclude that putting Dunning on the ground was something in which Lawson and Sanderson (as well as Luta) were directly involved. However, the submission made by Mr Dann was that the witness Cristian Luta was not asked whether he could see where Lawson's hands were and, in the case of Renate Bruckboeg, she said she could not see where they were. In the latter case, of course, the witness can be seen at the feet of Dunning and it is unsurprising that she could not see where Lawson's hands were.

26 Given the CCTV footage and the fact that Sanderson said in his statement to police that he knew Lawson was on top of Dunning and trying to roll Dunning on to his stomach and generally restrain him and that Sanderson was right there taking control of Dunning's left arm, the jury might well be satisfied that he could see where Lawson's hands or arms were and was lying about it because he knew an unlawful act was occurring.

27 In the case of Vigo two of the alleged lies are as follows:

Mr Dunning struggled violently throughout the time he was on the ground;

Mr Dunning was continually told to calm down and stop struggling while he was on the ground.

28 The same considerations apply to these matters as I have outlined in relation to Lawson and Sanderson.

The accused Lawson at no time had his arms or hands around the throat or neck of Dunning while laying on the ground.

30 This is not a lie by Vigo about his own actions but those of Lawson. In answer to my question about how this could be an implied admission by Vigo concerning his own culpability, Mr Tinney submitted:[15]

Well because the reality is that he saw things happening that made it quite clear that there was unlawful violence being applied to the person of Mr Dunning and he was involved in that in assisting in this process of trying to get Mr Dunning into the shut-down position, he saw where the arms of the accused Lawson actually were and didn't want to tell the truth about that because it would have made it clear that he had absolutely no justification for anything he was doing, that he was simply taking part in an unlawful assault upon this man who was on the ground.

32 However, that does not conclude the issue. As to the two statements by Sanderson and Vigo which appear to me to qualify as capable of being left to the jury as implied admissions because there is an evidentiary basis to conclude they were lying, I first note that they are both directly concerned with the circumstances of the offence. Second, whilst those utterances, to be established as lies, do not require proof of the guilt of the accused, they are arguably utterances made by the accused consequent upon their viewing of the CCTV footage about the incident. The accused have not given evidence and cannot be questioned about the terms of their statements. Indeed I assume those statements were made in the way that they were so that such questioning could be avoided.

33 Section 136 of the Evidence Act 2008 provides:

The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might -

(a) be unfairly prejudicial to a party; or

(b) be misleading or confusing.

34 Having concluded that none of Lawson's statements can be relied upon as implied admissions, it seems to me that it would be unfairly prejudicial to him and, for that matter to Sanderson and Vigo, to permit the two statements by those men about Lawson to be treated as lies representing an implied admission of guilt as to the subjective element of unlawfulness.

35 Therefore, for the reasons I have given, and pursuant to s 136 of the Evidence Act I will not permit any of the alleged lies in the statements of the accused to be relied upon by the Crown as implied admissions. I will direct the jury that to the extent that the Crown assert that each accused has told lies, that is a matter for them to determine and if they conclude that they were lies, those lies may affect the credibility of their explanations of what occurred.

[1] DPP v Lawson & ors (Ruling No. 3) [2012] VSC 526R.

[6] [2006] VSCA 263; (2006) 16 VR 26 [81].

[7] [2006] VSCA 263; (2006) 16 VR 26 at [71]- [72].

[8] [2004] VSCA 206; (2004) 11 VR 1 [3].

[9] See also R v Lam (Ruling No. 18) [2005] VSC 292 at [4] per Redlich J.

[10] [2005] VSC 292 [26].

[11] [2002] VSCA 219 [109].

[13] [1993] HCA 63; (1993) 178 CLR 193 210.

[14] [1998] 1 VR 453.