DPP v Lyons & Lyons

2 The prosecution has adduced a substantial body of evidence as to lies told by both Christine Lyons and Ronald Lyons, in the days following 23 January, as to the whereabouts of Ms Kelly. It has also adduced evidence of conduct by Ronald Lyons directed to the disposal of Ms Kelly's deceased body. Before the commencement of the trial, the prosecution gave notice to each accused that it intended to adduce that evidence as evidence of incriminating conduct by each of them.

3 The evidence in the trial has now been completed. It has been submitted on behalf of the accuseds that the prosecution should not be able to rely on the evidence, to which I have referred, as evidence of incriminating conduct, and that I should give a direction to the jury to that effect.

4 I have set out the background circumstances of the case in an earlier ruling[1] and, for the purposes of this ruling, it is only necessary for me to summarise them briefly.

5 At the time of the offences, and for some months preceding them, the two accuseds and Arthur were living together, with Ronald Lyons' three children from an earlier relationship, at 47 Wesley Street, Kangaroo Flat. Samantha Kelly was a 39 year old woman with four young children aged between 6 years and 11 months. In about mid-2015, at the invitation of the accuseds, Ms Kelly and her children commenced to live with the accuseds and Arthur at the premises at 47 Wesley Street. At the time of the offences, the children were living inside the house on the premises, together with the two accused persons and Arthur, while Samantha Kelly was residing in a bungalow at the back of the house.

6 The prosecution has alleged that in late 2015 the two accuseds and Arthur came to an agreement or understanding to murder Kelly, in order to enable Christine Lyons to assume the role of mother to Samantha Kelly's four children. Christine Lyons was unable to bear children herself, and, as alleged, for some time she had been anxious to be able to have children who she could rear as her own.

7 In accordance with that plan, it is alleged that between 20 January and 22 January 2016, the two accuseds and Arthur each induced Samantha Kelly to consume drinks that contained sleeping and other sedative medication, with the intention of killing her. However, when that plan did not work, it is alleged that the accuseds and Arthur came to an understanding that something different needed to be done to kill Samantha Kelly. It is further alleged that in accordance with that understanding, Arthur then went to the bungalow, armed with a hammer, and struck Samantha Kelly a number of times to the head, thereby killing her. Two days later, on 25 January, Ronald Lyons attended the Bunnings store at Kangaroo Flat and purchased two shovels. Further, some days after Samantha Kelly was killed, Ronald Lyons assisted Arthur to put Samantha Kelly's body in the rear of a car, and Arthur drove the vehicle to a place off the Bendigo/Maryborough Road at Shelbourne, where he buried her.

8 Evidence has been adduced that, in the following days, Christine Lyons told a number of persons to whom they spoke that Samantha Kelly had walked out of the premises in the early hours of 23 January, telling Christine Lyons and Peter Arthur that she had had enough of her children, and that she had not been heard from since. In addition, Christine Lyons and Ronald Lyons gave the same account in the statements that they made to the police on 9 February 2016 about Samantha Kelly's disappearance. Two days later, on 11 February, they each repeated the same account when they were interviewed separately by the police.

9 The prosecution now seeks to rely on the following as evidence of incriminating conduct against the accuseds:

(a) That each accused lied when they told others that Samantha Kelly had left in the middle of the night saying that she had had enough.

(b) That each accused lied when they told others that in the lead up to her disappearance Samantha Kelly had been using drugs.

(c) That following the death of Samantha Kelly, Ronald Lyons had assisted Peter Arthur to remove Samantha Kelly's body from the bungalow and place it in the vehicle, which was used by Peter Arthur to take the body away and to bury it.

10 In submissions before me, Ms Dalziel, who appears with Mr Ihle on behalf of the prosecution, made it clear that the prosecution does not seek to rely on that evidence as incriminating conduct in respect of the first charge, of attempted murder. Rather, the prosecution seeks to rely on that evidence as incriminating conduct in respect of the issue whether, at the time at which Arthur killed Samantha Kelly, each accused was a party to an agreement with Arthur to kill Samantha Kelly. Ms Dalziel made it clear that the prosecution would not rely on the evidence, as incriminating conduct in respect of the issue whether, when Arthur proceeded to the bungalow and killed Samantha Kelly, he was then acting in accordance with or pursuant to that agreement.

Evidence of incriminating conduct: Christine Lyons

11 A number of witnesses have given evidence that, in the weeks following Samantha Kelly's disappearance, Christine Lyons told them that Samantha had walked out of the home in Wesley Street in the early hours of the morning, saying that she had had enough, and that she no longer wished to care for her children.

12 In particular, Shiralee Lyons, who is a cousin of Ronald Lyons, stated that Christine Lyons made a statement to her to that effect on 21 January. I interpolate that it would seem that Shiralee Lyons may have been mistaken about the date on which that conversation took place. Significantly, Christine Lyons gave the same account to her next door neighbour, Pauline Pettersen, in the early morning of 23 January, approximately six or seven hours after Samantha Kelly had been murdered by Peter Arthur. She then repeated the same account to a friend, Rebecca Stow, on 26 January, and to her cousin, Alan Walkom, on 28 January. Mr Walkom had the practice of recording all telephone calls that he received, and a recording of that telephone call was tendered in evidence. Christine Lyons again repeated the same account to Samantha Kelly's brother, Michael Kelly, and to Michael Kelly's partner, Danielle Stevenson, when they spoke to her on the telephone on 4 February. During that day, she repeated the same account to Scott Jelbart and Alison Dorgan, child protection workers of the Department of Health and Human Services, when they visited the home, and to Ms Kris House, of Haven Home Safe, when she spoke to her on the telephone. On the next day, 5 February, Christine Lyons again repeated the same account to Stacie Cole, who was the teacher of Samantha Kelly's eldest child, Hermione, at Kalianna School. During the same period, Christine Lyons told Andrew Binks, who is a close friend of Shiralee Lyons, that Samantha had walked out of her premises leaving the children behind.

13 On 5 February, Christine Lyons made a number of Facebook posts in which she represented that she was undertaking a number of inquiries to try to ascertain Samantha Kelly's whereabouts. Four days later, on 9 February, she made a detailed statement to the police, in which she stated that at 3:30 am on the morning of 23 January, Samantha Kelly came into her room, told her that she had had enough, and left through the front door. In the statement, Christine Lyons described how she watched Samantha cutting across the grass and then turning to the left.

14 On the next day, 10 February, Christine Lyons was interviewed by Mr Wesley Hosking, of the Herald Sun. In the recorded interview (the disc of which was tendered in evidence) she described how Samantha Kelly had told her that she had had enough with her boyfriend Mark Glare, she had had everything and she was leaving. On the next day, 11 February, Ms Tamara Mills, of the Age newspaper, interviewed Christine Lyons, and a recording of that interview was tendered in evidence. In that interview, she repeated again the same account that she had given to Mr Hosking.

15 In addition, in explaining the disappearance of Samantha Kelly, Christine Lyons told a number of persons that Samantha Kelly had been using drugs in the lead up to her disappearance and death. In particular, she said that to Ms Stow, to Mr Kelly and Ms Stevenson, to Mr Jelbart, Ms Dorgan and Mr Binks. On each of those occasions, she made that statement while explaining that Samantha had walked out of the home in the early hours of the morning leaving her children behind. In addition, she also told Ms Beckie Parkinson, a teacher at the pre-school attended by Samantha Kelly's second youngest child, Indi, that Samantha had left and that she was 'doing drugs' and that she was 'not good'.

16 Ronald Lyons was present during the interviews conducted by both Mr Hosking and Ms Mills with Christine Lyons. He spoke on a couple of occasions during the interview between Mr Hosking and Christine Lyons. In respect of the interview conducted by Ms Mills, two different male voices can be heard speaking. Ms Mills was uncertain as to which comment was made by Peter Arthur, and which comment was made by Ronald Lyons, during the interview. However the prosecution submits that the evidence is sufficient for the jury to infer that Ronald Lyons was not only present at the interview, but that he participated in it by speaking at least once during it.

17 In his statement to the police dated 9 February 2016, Ronald Lyons also maintained that he last heard of Samantha Kelly about 3:00 am or 3:30 am on 23 January, when he woke up Christine and Peter Arthur who were sleeping in the lounge room, and said that she had had enough, and that she then left. In addition, during that period, Ronald Lyons told Peter Arthur, Mr Jelbart and Ms Dorgan that Samantha had been using drugs, and he made a Facebook post to that effect on 5 February. In his statement to the police of 9 February, he said 'I reckon that just before she took off Sam was on drugs, I think she was using Ice but I can't be one hundred percent sure'.

18 A number of witnesses have given evidence that Samantha Kelly was in fact averse to the use of drugs and that they had never seen her on drugs. Those witnesses included Rebecca Stow, Shiralee Lyons, Peter Arthur, Mark Glare, Michael Kelly and Danielle Stevenson. In addition, the samples taken from the body of Samantha Kelly, when submitted for toxicological examination, were not found to contain any residue of any illicit drugs. No evidence has been adduced in the trial that Samantha Kelly used drugs, and no evidence was adduced to contradict the assertion made by a number of witnesses that she in fact was opposed to the consumption of illegal drugs.

19 Mr De Kretser, who appears with Mr Kilduff, on behalf of Christine Lyons, has submitted that the prosecution should not be permitted to rely on the two representations, alleged against Christine Lyons, as lies demonstrating a consciousness by Christine Lyons that she had been criminally implicated in the death of Samantha Kelly. In particular, counsel submitted that no reasonable jury could conclude that the representation about Samantha Kelly's drug use was a deliberate lie, and in any event that representation was not material to the issues in the case. Further, it is submitted, that while it is accepted that Christine Lyons told lies concerning the disappearance of Samantha Kelly, it is not open to the jury to conclude that there was no explanation for the telling of that misrepresentation consistent with Christine Lyons' innocence. In essence it is submitted that the two representations, on which the prosecution seeks to rely, are 'intractably neutral' in that they are equally consistent with the innocence of Christine Lyons.

20 In support of those submissions, counsel contended, first, that it would not be open for the jury to find that the representations made by Christine Lyons, concerning Samantha Kelly's alleged drug use, were a deliberate lie told by her. In support of that proposition, counsel contended that the family members of Samantha Kelly, namely Michael Kelly and Danielle Stevenson, had little personal contact with her in recent years. The evidence of the toxicologist was not capable of excluding the possibility that Ms Kelly used illicit substances in the weeks leading up to her death. Further, while Shiralee Lyons gave evidence that Ms Kelly was not into heavier drug use, she conceded that she would occasionally have a 'joint' of cannabis.

21 In addition, it was submitted that, in any event, if the statements made by Christine Lyons are a lie, nevertheless they were not material to the issues in the case, and could not be used as an implied admission that she had been involved in the murder, of Samantha Kelly.

22 Further, counsel for Christine Lyons contended that the jury could not reasonably exclude the possibility that the lies, told by Christine Lyons concerning the disappearance of Samantha Kelly, were consistent with her innocence. In particular counsel pointed to statements made by Christine Lyons in her interview that she told the lie because she was trying to protect Peter Arthur, that she was concerned about ending up alone, and that she was trying to protect the children and trying to protect everyone. Counsel also pointed to statements made by Christine Lyons, and letters that she wrote to Rebecca Stow, Pauline Pettersen and Peter Arthur, while in prison, stating that she had told the lies because she was fearful of Peter Arthur who had threatened her. It was further submitted that in any event the jury could not exclude the possibility that Christine Lyons had lied out of panic because she was concerned that she might be wrongly implicated in the murder of Samantha Kelly.

23 Mr J Williams, who appears with Mr P Smallwood on behalf of Ronald Lyons, accepted that the evidence, that Ronald Lyons assisted Peter Arthur to move Samantha Kelly's body, is reasonably capable of being viewed by the jury as evidence of incriminating conduct. However, he submitted that the evidence that Ronald Lyons lied when he told others that Samantha Kelly had left in the middle of the night is intractably neutral, and is not reasonably capable of being viewed by the jury as evidence of incriminating conduct. He submitted that the lie was told in circumstances in which he knew that Peter Arthur had killed Samantha Kelly, and therefore the jury could not exclude the reasonable possibility that Ronald Lyons lied because he feared that he would be wrongly blamed for her murder, notwithstanding that he was not involved in it. Further it was submitted that the jury could not rationally exclude the possibility that the lies were told by Ronald Lyons in order to protect Peter Arthur. Mr Williams further submitted that the evidence that Ronald Lyons said that Samantha Kelly had been using drugs was not a material lie unless it was connected to the lie told by Ronald concerning the whereabouts of Samantha Kelly. In that respect, he repeated his submissions, namely that that lie was intractably neutral.

24 In response, Ms Dalziel submitted that it was open to the jury to conclude that the only reasonable explanation why Christine Lyons told the lies about the disappearance of Samantha Kelly, and about her drug use, was in order to conceal her involvement in the murder of Samantha Kelly.

25 In support of that submission, counsel pointed out that the lies told by Christine Lyons and Ronald Lyons, and also by Peter Arthur, were very similar, from which it might be inferred that they had all agreed to tell the same story because they were all complicit in the murder of Samantha Kelly. It was submitted that the lies told by both accused, concerning Samantha Kelly's drug use, were closely associated with the account given by each of them that Ms Kelly had run away, and were served to 'inform or pad out' that story. In addition, Christine Lyons volunteered the explanation on a number of occasions, and told it not only to friends or acquaintances, but also to the media on a number of occasions, and also in her jurat statement to the police. At the centre of the story was the abandonment of four young children by a drug abusing mother which, it was submitted, raises the false account given by Christine Lyons and Ronald Lyons above a simple cover up of Arthur's crime. Rather, the nature of the lies, and the manner in which they were communicated, demonstrated a calculated and planned program of misinformation in order to cover up the crime in which all three persons were involved.

26 Further it was submitted that the explanations given by Christine Lyons in her police interview were inconsistent. On different occasions, in her interview, she said that she had told the lies to protect Peter Arthur, to protect herself from being a suspect in the death of Ms Kelly, and to protect her children. At the same time, it was submitted, her explanation of what had occurred in the interview was inconsistent and at times irrational. On some occasions she said that she was unsure whether Peter Arthur was truthful when he said that he had killed Ms Kelly, and at other times she accepted that she knew that he had. Thus it was contended that the explanations for the lies, proffered in the interview, were necessarily connected with, and infected by, the other false explanations given by Christine Lyons as to her knowledge of the murder of Samantha Kelly by Peter Arthur.

27 In essence, the prosecution will be inviting the jury to draw an inference against the two accuseds from that evidence as to the conduct of each of them after Samantha Kelly was murdered by Peter Arthur. In particular, it intends to submit to the jury that the only reasonable inference is that each accused acted in the way, described above, because that accused knew that, at the time at which Arthur murdered Samantha Kelly, he or she had been a party to an agreement to murder Samantha Kelly, and that that accused believed that, if he or she did not perform that conduct, then he or she would be correctly held responsible for that crime.

28 In a criminal trial, the question whether a jury should draw a particular inference is, essentially, a question of fact for the jury and not for the judge. It is not my task, as the trial judge, to determine whether the jury should draw the inferences contended for by the prosecution. Rather, at this stage, my task is to determine whether the jury, acting rationally, could conclude that the only reasonable inference from the post-offence conduct engaged in by each accused is the inference contended for by the prosecution.[2] In considering that question, it is important to bear in mind that the purpose, and great strength, of the jury system, is that it allows for the ordinary life experiences of ordinary people, of varying backgrounds, to be brought to bear on such questions as to whether or not a particular inference should be drawn against an accused person.[3]

29 Evidence of lies and evidence of post-offence conduct are, essentially, circumstantial evidence. The capacity of such evidence to give rise to a particular inference is to be determined, not by considering the lies and the post-offence conduct in isolation, but, rather, by assessing that evidence in conjunction with the other relevant evidence in the case.[4]

30 In essence, a lie may constitute incriminating conduct by an accused person, where, in the circumstances of the case, a jury could properly conclude that the only reasonable inference is that the accused told the particular lie because the accused perceived that the truth was inconsistent with his or her innocence. In Edwards v R,[5] Deane, Dawson and Gaudron JJ, in their joint judgment, stated:

Ordinarily the telling of a lie will merely affect the credit of the witness who tells it. A lie told by an accused may go further and in limited circumstances, amount to conduct which is inconsistent with innocence and amount therefore to an implied admission of guilt ... It is only if the accused is telling a lie because he perceives that the truth is inconsistent with his innocence that the telling of the lie may constitute evidence against him. In other words, in telling the lie the accused must be acting as if he were guilty. It must be a lie which an innocent person would not tell. That is why the lie must be deliberate. Telling an untruth inadvertently cannot be indicative of guilt. And the lie must relate to a material issue because the telling of it must be explicable only on the basis that the truth would implicate the accused in the offence with which he is charged.[6]

31 The applicable test is that stated by the Court of Appeal in R v Ciantar:

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.

So, if an innocent explanation of post-offence conduct is so inherently likely that a jury could not properly regard the conduct as evidence of guilt, or if the post-offence conduct is intractably neutral, the judge should refuse to leave the conduct to the jury as evidence capable of demonstrating consciousness of guilt. But where the judge is 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, the post-offence conduct should be left to the jury to determine whether it has that effect. Similarly, where evidence of consciousness of guilt, which although by itself is equally consistent with consciousness of guilt of an included offence or another count on the presentment or another offence disclosed by the evidence, is capable in conjunction with other evidence of sustaining an inference of consciousness of guilt of the charged.[7]

32 In considering the competing submissions, it is convenient, first, to deal with the submissions made by Mr De Kretser about the statements made by Christine Lyons as to Samantha Kelly's drug use.

33 In my view, it is well open to the jury to reasonably conclude that Christine Lyons, and Ronald Lyons, were each telling a lie, when they claimed that Samantha Kelly had been using drugs in the period leading up to her death. As I have already noted, a number of witnesses gave evidence that Samantha Kelly was opposed to the use of drugs, and that she did not use them. On the other hand, the evidence in support of the truth of the statements made by Christine Lyons and Ronald Lyons was, to say the least, scant. Shiralee Lyons did say that when she first met Samantha Kelly (in 2009) Samantha then had the occasional 'joint' of cannabis. Apart from that evidence, the only other evidence, to that effect, were self-serving statements made by Ronald Lyons and Christine Lyons in the context of them telling people that, in the period preceding her disappearance, Samantha Kelly had lost interest in her children, and that she had ultimately walked out on them in the early hours of 23 January.

34 Ms Dalziel has made it clear that the prosecution does not seek to rely on the lies, told by Christine Lyons and Ronald Lyons about Samantha Kelly's drug use, as an independent or discrete act of incriminating conduct. Rather, the prosecution seeks to rely on that lie, as an attempt by each accused to give verisimilitude to their story that Samantha Kelly had abandoned her children in the early hours of the morning of 23 January. In that way, clearly, the lies, told by each accused about Samantha Kelly's drug use, would be material to the issues in the case, by being an aspect of the false account, given by each accused as to the whereabouts of Samantha Kelly, in order to conceal the fact that she had been murdered by Peter Arthur.

35 The critical question, then, is whether the jury, acting rationally, could conclude that the only reasonable inference, arising from that conduct by each accused, is the inference contended for by the prosecution, namely, that the accused knew that he or she had been a party to an agreement to murder Samantha Kelly, and that the accused believed that if he or she did not tell the lie in question, then he or she might be correctly implicated in the murder of Samantha Kelly.

36 It is convenient, first, to deal with the position of Christine Lyons. Counsel has submitted that there are a number of possible explanations, consistent with innocence, for the lie told by Christine Lyons about the disappearance of Samantha Kelly. In particular, it has been submitted, it is reasonably possible that she was lying to protect Peter Arthur, or in order to retain the children who might otherwise be removed from the premises if the murder was discovered, or in order to protect herself from a false allegation of being implicated in the murder of Samantha Kelly, or because she was responding to threats of violence towards her by Peter Arthur. Thus, the critical question is whether the jury, acting rationally, could exclude those possible explanations as not being reasonably open in the circumstances.

37 In considering that question, it is important to take into account the circumstances in which Christine Lyons told the lie about Samantha Kelly's disappearance. First, of course, she did not simply tell the lie in response to questioning by particular people. Rather, she told that lie to a number of different people, including friends, family, school teachers, representatives of child protection, the media and the police. She commenced by telling the lie to Pauline Pettersen, her neighbour, as early as 9:30 am or 10:30 am on the morning after the murder of Samantha Kelly. Further, the jury will have the advantage of listening to a recording of Christine Lyons telling the lie on four other separate occasions. In particular, the lies that she told to Mr Hosking, Ms Mills and Mr Walkom were, as I have already indicated, recorded by each of them. In addition, a segment from Channel 7 news footage of 10 February 2016, that was tendered in evidence, records Christine Lyons again repeating the same lie.

38 Importantly, Christine Lyons told the lie to the police when she made her statement on 9 February. At that time, police were treating the case as one of a missing person. It would have been abundantly clear to Christine Lyons that the making of the statement, reinforced by the jurat at the end of it, was a particularly serious matter, and that it was important that she should assist the police to ascertain what had happened to Samantha. It was in that context that, in her statement, she again told the lie about Samantha' disappearance, and she gave some details concerning her account of Samantha Kelly coming into the lounge room in the early morning, and announcing that she was leaving her children.

39 Further, as noted, Christine Lyons sought to garnish the lie that she told, about Samantha Kelly's disappearance, by painting the picture that Samantha had become mixed up with the abuse of illicit drugs, and that she had lost interest in being a mother to her four young children. As noted, the allegation that Samantha Kelly had been consuming drugs could be reasonably viewed as an attempt by Christine Lyons to give her account, as to the disappearance of Samantha, greater credibility.

40 That conduct of Christine Lyons must be considered, first, in the context of the circumstances of which Christine Lyons was then aware. According to Arthur, shortly after he murdered Samantha Kelly, he told both accused of that fact. In her interview, Christine Lyons was singularly inconsistent in respect of the events of the night in question. However, ultimately, she did reveal that Arthur stated that he had killed Samantha Kelly. On the evidence, the jury would be well justified in concluding that, shortly after Arthur murdered Samantha Kelly, he told each accused what he had done.

41 Thus, at the time that Christine Lyons told the lies, to which I have just referred, she knew that a woman, who was a mother of four young children, and who was living in her home, had been murdered by her (Christine Lyons') own husband. She was aware that Samantha Kelly had moved from Ballarat to Bendigo effectively to get away from a threat of violence, and that she had moved into the premises in 47 Wesley Street as a form of security for herself and her children.

42 In those circumstances, the jury would be well justified in concluding that it would have been an extraordinary matter for Christine Lyons to have embarked on the program of serially telling blatant lies about Samantha Kelly's disappearance, if she had nothing to do with the murder of Samantha Kelly. The jury would be entitled to reasonably conclude that a person in the position of Christine Lyons would not have repetitively told the same lies, in circumstances in which she was innocent, and in which she knew her own husband had committed such a serious crime. The jury would further be justified in concluding that, notwithstanding whatever ties of loyalty Christine Lyons might have felt to Peter Arthur, it could not reasonably be concluded that it was possible that those ties were sufficiently strong to have induced her to repetitively tell those lies in order to protect him.

43 Further, as the Court of Appeal has made clear in Ciantar, and indeed as is specified in s 20(1)(b) of the Jury Directions Act 2015, the incriminating conduct, sought to be relied on by the prosecution, must be viewed in light of all of the evidence in the case. In respect of Christine Lyons, that evidence includes the evidence of motive, the evidence that she had assumed the role of mother to Samantha Kelly's children before her death, and the evidence that, after Samantha's death, she changed the names of two of the children. Further, the lies must be viewed in the light of the evidence of Shiralee Lyons that on three occasions Christine Lyons had sought to persuade her to assist to kill Samantha Kelly.

44 In those circumstances, in my view, the jury could rationally conclude that the only reasonable explanation why Christine Lyons told the lies, concerning the disappearance of Samantha Kelly, was because she knew that she had been criminally involved in the murder of Samantha Kelly at the time of her death, and that, if she did not tell the lies, her involvement in the murder of Samantha Kelly by Peter Arthur might be revealed. Accordingly, I consider that the prosecution is entitled to rely on the lies, so told by Christine Lyons, as evidence of incriminating conduct in respect of the issue whether, at the time that Arthur murdered Samantha Kelly, Christine Lyons was a party to an agreement with Arthur to murder her.

45 The evidence relating to the telling of lies by Ronald Lyons, about Samantha Kelly's disappearance, was substantially more limited. As mentioned, in his statement to the police, he gave an account of Samantha leaving the house in the middle of the night. As also mentioned, he was present, and participated in, each of the interviews conducted by Ms Mills and Mr Hosking, when Christine Lyons was explaining the circumstances in which Samantha had disappeared from the house. In addition, in the context of the discussion relating to Samantha's disappearance, Ronald Lyons told Mark Glare and Alison Dorgan that Samantha had been using drugs. He also made a post to that effect on Shiralee Lyons' Facebook page. Again, it would be well open to the jury to conclude that Ronald Lyons told lies about the use by Samantha Kelly of drugs, in order to fortify the false explanation as to her disappearance that was being disseminated both by Christine Lyons and himself.

46 A number of considerations, relevant to the position of Christine Lyons, also apply when considering whether the lies so told by Ronald Lyons could be reasonably concluded by the jury to be evidence of incriminating conduct by him. However, some other considerations also apply.

47 In the first place, Ronald Lyons, on his own admission, assisted Peter Arthur to remove Samantha Kelly's body from the unit, so as to enable Peter Arthur to transport it away from the house. The jury would be well entitled to conclude that the only reasonable conclusion, from that conduct by Ronald Lyons, was that he knew that he had been implicated in the murder of Samantha Kelly, and that if he did not assist Peter Arthur to remove the body from the premises, his involvement in the murder of Samantha Kelly might be revealed. Indeed, as noted, Mr Williams did not contend to the contrary.

48 It was in that context that Ronald Lyons also participated in the dissemination of the lies as to the circumstances in which Samantha Kelly had disappeared from the premises. In particular, Ronald Lyons was present at the two media interviews conducted respectively by Ms Mills and Mr Hosking. The jury would be entitled to consider that there was no need for Ronald Lyons to join in and participate in either interview, if he had been innocent in the killing of Samantha Kelly. Indeed, the impression that has been gained from the witnesses in the case, and from his two police interviews, is that Ronald Lyons is a rather taciturn man. His interventions in each of the two interviews, albeit limited, might reasonably be considered by the jury to have been a deliberate attempt by Ronald Lyons to reinforce the false account that was being disseminated by Christine Lyons about the disappearance of Samantha Kelly, through the media.

49 It must be remembered that Ronald Lyons became aware that Peter Arthur had murdered Samantha Kelly shortly after that occurred. While Ronald Lyons was on friendly terms with Peter Arthur, the evidence does not reveal that, such were the ties of friendship between them, that he would have felt a compelling need to tell lies about Samantha Kelly's death, in order to protect Peter Arthur. The jury would be well justified in concluding that, if Ronald Lyons had innocently found himself in the extraordinary position of learning that Arthur had murdered Samantha Kelly in their home, it could not be reasonably concluded that Ronald Lyons might have been impelled by such a need to protect Peter Arthur, or to protect himself against a false accusation, as to participate in the lies being told by Christine Lyons concerning Samantha's disappearance, and to go to the lengths of repeating those lies in a formal statement made by him to the police when Samantha was treated as a missing person.

50 In those circumstances, in my view, the jury would be entitled to conclude that the only reasonable inference, from the evidence, is that Ronald Lyons participated in the lies being disseminated about Samantha's disappearance, because he knew that he was involved in an agreement to kill Samantha at the time at which she died, and because he was aware that, if he did not tell those lies, he might be correctly implicated in her murder. Accordingly, the prosecution will be entitled to rely on the evidence of the lies told or participated in by Ronald Lyons, concerning the disappearance of Samantha Kelly, and her alleged drug use, as incriminating conduct in the manner foreshadowed by Ms Dalziel in submissions.

51 For the foregoing reasons, the prosecution will be entitled to rely on the following evidence as post-offence incriminating conduct as an implied admission by each accused to having been a party to an agreement, arrangement or understanding with each other and Peter Arthur to murder Samantha Kelly at the time at which Samantha Kelly was killed by Peter Arthur:

(1) Evidence that, on various occasions, Christine Lyons and Ronald Lyons each told a false story about Samantha Kelly leaving the premises at 47 Wesley Street, Kangaroo Flat in the middle of the night.

(2) Evidence that, in support of that false story, Christine Lyons and Ronald Lyons also on various occasions told lies that Samantha Kelly had been using illicit drugs.

(3) Evidence that Ronald Lyons assisted Peter Arthur to remove Samantha Kelly's body from the unit at the rear of the premises at 47 Wesley Street, Kangaroo Flat.

[1] DPP v Lyons & Lyons (Ruling No 3) [2018] VSC 224R.

[2] R v Cengiz [1998] VR 720, 735 (Harper AJA).

[3] Doney v R [1990] HCA 51; (1970) 171 CLR 207, 214; R v Cengiz, 721 (Ormiston JA), 737-8 (Harper AJA).

[4] Edwards v R [1993] HCA 63; (1993) 178 CLR 193, 210 (Deane, Dawson and Gaudron JJ); R v Ciantar [2006] VSCA 263; (2006) 16 VR 26, 40 [45], 42 [52], 47 [64]; Brooks v R [2012] VSCA 197, [68]-[69] (Weinberg JA).

[5] [1993] HCA 63; (1993) 178 CLR 193.