DPP v Scriven

2 The fatal stabbing occurred in the course of a fight between Mr Scriven and Mr Bayley, in the front garden of Mr Scriven's house. What is in issue in the trial is whether, when he stabbed Mr Bayley, Mr Scriven:

(a) intended to kill him or cause him really serious injury; and

(b) if so, believed that it was necessary to do what he did in order to defend himself against death or really serious injury.

3 Before the commencement of the trial, the prosecution gave notice, in accordance with s 23 of the Jury Directions Act 2013 ('the JDA'), of six items of evidence on which it proposed to rely as evidence of 'incriminating conduct', as defined in s 22 of the JDA. The notice identified the items in these terms:

1. Evidence that the accused said, after the altercation between himself and the decided, that he had been stabbed.

1. civilian and police witnesses when the accused was present at 8 Thexton Street, Traralgon

1. to a 000 operator who received a telephone call from the accused

d) to medical officers who treated his injuries.

1. Evidence that the accused laughed soon after the altercation between himself and the deceased.
2. Evidence that the accused changed his clothing after the altercation with the deceased.
3. Evidence that the accused's kitchen area contained what appears to be blood.
4. Evidence that the knife referred to had water marks upon it and had been wiped.

4 In supporting submissions, the prosecution reformulated the categories as follows:

1. The accused telling people, after his altercation with the Deceased, that he had been stabbed.

B. The accused laughing after the altercation.

C. The accused changing his clothing after the altercation.

D. Evidence that a knife was washed and concealed after the altercation.

5 The Crown case closed on 27 February, after 11 days of evidence, and defence counsel announced that they would be calling no evidence. Having had the benefit of argument from both sides, both orally and in writing, I then ruled that the prosecution could not rely on the specified evidence as evidence of incriminating conduct. I was not satisfied, on the basis of the evidence as a whole, that any of the items of evidence was

reasonably capable of being viewed by the jury as evidence of incriminating conduct.[1]

6 I said I would publish my reasons subsequently. These are those reasons.[2]

conduct means the telling of a lie by the accused, or any other act or omission of the accused, which occurs after the event or events alleged to constitute an offence charged;

incriminating conduct means conduct that amounts to an implied admission by the accused -

(a) of having committed an offence charged or an element of an offence charged; or

(b) which negates a defence to an offence charged;

offence charged includes any alternative offence.

8 Only two of the items of evidence are agreed to be evidence of 'conduct'. That is the evidence that, after the stabbing, Mr Scriven:

• laughed in the direction of the victim, Mr Bayley, and those who were assisting him; and
• changed his clothing.

9 The statement by Mr Scriven - 'I've been stabbed too' - is said to have been a lie. Before it could constitute conduct for this purpose, therefore, it has to be determined whether the statement was knowingly false.

10 Then there are the three items of forensic evidence concerning a knife found in Mr Scriven's house after the stabbing, namely, that:

• the knife was located on the floor in the dining room of Mr Scriven's house;
• the kitchen area contained what appeared to be blood; and
• the knife had traces of water on it and appeared to have been wiped.

11 Plainly enough, this is not direct evidence of conduct by the accused. Rather, the prosecution wishes to invite the jury to infer from these items of evidence - taken together - that Mr Scriven (or someone on his behalf) engaged in a particular course of conduct, that is, washed and wiped the knife and then hid it.

12 The prosecution contends that each item of conduct said to be established by this evidence - the laughing, the change of clothing, the alleged lie and the cleaning and hiding of the knife - is conduct that 'amounts to an implied admission' by Mr Scriven that when he stabbed Mr Bayley, he:

(a) intended to kill Mr Bayley or cause him really serious injury; and

(b) was not acting in the belief that it was necessary to do what he did in order to defend himself against death or really serious injury.[3]

13 It was the second of these implied admissions which became the focus of the prosecution's arguments on incriminating conduct. That is, the conduct in question was said to show (or be 'reasonably capable' of showing) that Mr Scriven did not act, and knew that he was not acting, in self-defence.

14 The threshold difficulty for this argument, in my opinion, is that the evidence led by the prosecution establishes that Mr Scriven was defending himself when he struck the fatal blows. The evidence to that effect is overwhelming. Moreover, as I shall explain, the evidence of the surrounding circumstances also demonstrates, overwhelmingly, that at the time he stabbed Mr Bayley, Mr Scriven had good reason to fear for his own safety.

15 As I pointed out to the prosecutor during argument, the evidence given by the Crown's own witnesses establishes the following facts about the fatal altercation:

• Mr Scriven did not initiate the fight. The first acts of aggression came from Michael Hill and the victim, Wayne Bayley.
• At the time of the stabbing, Mr Scriven was on the ground, with Mr Bayley pinning him down and punching him repeatedly to the head.
• Mr Scriven was at a significant disadvantage in the fight. He could not move away from his assailant, who was straddling his body with one knee on either side.
• He had been at a similar disadvantage in the first incident, several hours earlier, when he was held down on the road by Michael Hill and repeatedly punched and kicked in the head by Tyson Kavanagh.
• Mr Scriven knew that he was outnumbered. He had no male friends or supporters nearby.
• He was aware that those who had assaulted him in the first incident were nearby.
• He knew from the first incident that there was considerable hostility towards him and his partner.

16 Senior counsel for the prosecution conceded in argument that Mr Scriven may well have been 'in a position of disadvantage'. She maintained, however, that nothing about the circumstances in which Mr Scriven found himself justified a belief that he needed to do what he did - stabbing Mr Bayley with great force, and repeatedly - to defend himself against death or really serious injury.

17 Under s 24(1) of the JDA, evidence of conduct cannot be relied on as evidence of incriminating conduct unless:

(b) the trial judge determines that, on the basis of the evidence as a whole, the evidence of conduct is reasonably capable of being viewed by the jury as evidence of incriminating conduct.

18 If a favourable determination is made under s 24(1)(b), s 25(1) of the JDA sets out the directions which the trial judge must then give. The judge must direct the jury that:

(a) the jury may treat the evidence as evidence that the accused believed that he or she had committed the offence charged or an element of the offence charged, or that he or she had negated a defence to the offence charged, only if it concludes that:

(i) the conduct occurred; and

(ii) the only reasonable explanation of the conduct is that the accused held that belief; and

(b) even if the jury concludes that the accused believed that he or she had committed the offence charged, it must still decide, on the basis of the evidence as a whole, whether the prosecution has proved the guilt of the accused beyond reasonable doubt.

19 The terms of those directions - which reflect the common law position - illuminate the task of the trial judge in making the determination under s 24(1)(b). Thus, in determining whether the evidence 'is reasonably capable of being viewed by the jury as evidence of incriminating conduct', the judge is deciding whether it would be reasonably open to the jury to conclude that:

• the conduct occurred; and
• the only reasonable explanation of the conduct was that the accused believed he had committed the offence charged or had not acted in the belief that he needed to do what he did in order to defend himself.

20 In my respectful opinion, the task of the trial judge in these circumstances was correctly stated by Kaye J in DPP v Zhuang,[4] as follows:

The question in any case whether a jury should draw a particular inference is of course essentially a question of fact for the jury and not for the judge. It is not my task to determine whether the jury should draw the inference 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 indulged in by the accused is that contended for by the prosecution. (See R v Cengiz.)

Thus, where the prosecution seeks to rely on post offence conduct, the test for myself as the trial judge is whether the jury could rationally conclude that the only reasonable inference to be drawn from that conduct is that contended for by the prosecution, namely an awareness that she had murdered her daughter-in-law and was not acting in self-defence; (see R v Ciantar; the Jury Directions Act 2013 s 25(1)(a)(ii)).

Further, the test which I must consider is not whether standing alone the only reasonable inference to be drawn from that conduct is that the accused acted as she did, because of a belief that she had murdered [the victim] without justification. Rather it is plain that that question must be considered in the context of all the evidence in the case, and the background circumstances to it. (R v Ciantar; Jury Directions Act 2013 s 24(1)(b).)[5]

21 As is apparent from his Honour's references to R v Cengiz[6] and R v Ciantar,[7] he construed s 24 of the JDA as reflecting the common law position. In the present case, senior counsel for the prosecution accepted that the JDA adopted the common law but did not accept the correctness of Kaye J's formulation of the test to be applied by the trial judge. Counsel submitted that it was not for the trial judge to attempt to assess the cogency of alternative (innocent) explanations for the relevant conduct, less still to decline to leave the evidence as evidence of incriminating conduct if the innocent explanation(s) were judged to be equally available. To do so, it was submitted, would be to 'usurp the function' of the jury.

22 That submission must be rejected. The pre-JDA decisions make it clear that the judge is obliged to 'make some assessment of the plausibility of any innocent explanations' for the relevant conduct.[8] As the Court of Appeal said in Ciantar:

[I]f 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.[9]

23 In short, the question for the judge to determine under s 24(1)(b) is whether, on the whole of the evidence, it would be reasonably open to the jury to conclude that the conduct in question could only be explained by the accused's having had the relevant belief in his own guilt. The judge is assessing - as best he/she can - what the jury, acting rationally, would be entitled to make of the conduct, viewed in the context of all of the evidence.

24 In assessing competing innocent explanations, the judge is anticipating - is obliged to anticipate - how rational jurors would be likely to undertake the same exercise.[10] But this is not a usurpation of the jury's function. On the contrary, it is a proper safeguard to ensure that post-offence conduct is not allowed to go forward as a form of self-incrimination unless there is a rational path open to the conclusion that the conduct cannot be explained in any other way.

25 The putative jury conclusion is conventionally expressed - as it is in s 25(1)(b) of the JDA - as a conclusion that the incriminating explanation of the conduct is the only reasonable explanation open on the whole of the evidence. But it could equally be expressed as a conclusion that no other explanation is reasonably open. That is, the jury must be able to dismiss any innocent explanation of the conduct as untenable.[11]

26 In my view, the phrase 'intractably neutral' as used in the cases captures one - but only one - possible result of the judge's evaluation of the evidence. In such a case, the judge concludes that the innocent explanation and the incriminating explanation are equally plausible. Put another way, to say that conduct is 'intractably neutral' is to say that a rational jury could not, on the whole of the evidence, decide which was the preferable explanation.

27 Logically, however, there will be other circumstances in which the existence of an alternative explanation would prevent a judge making the s 24 determination. That is, even where the competing explanations are not of equal plausibility, the judge might still conclude that the innocent explanation was sufficiently cogent, and sufficiently consistent with the surrounding circumstances, that the jury acting rationally would be unable to exclude it.

28 That view accords with what this Court said in Mannella v The Queen.[12] That was an appeal against conviction in a circumstantial evidence case, but what was said there is relevant here given that post-offence conduct is 'a species of circumstantial evidence'.[13]

29 The trial judge had directed the jury that an explanation of the evidence advanced by the defence could only be viewed as 'reasonable' if it was a 'competing' explanation, that is, the explanation had to be 'of equal strength'. The Court ruled that the direction was erroneous:

An alternative hypothesis does not have to be 'equally open' or 'equally compelling' in order to give rise to a reasonable doubt as to guilt. Such a doubt will arise where any other inference consistent with innocence is reasonably open on the evidence, and the accused is entitled to the benefit of the doubt necessarily created by that competing inference.

...

There is an unacceptable risk that the jury understood the prosecution's burden of proof 'beyond reasonable doubt' to have been met provided that there was not another 'equally' likely explanation for the circumstances upon which the inference of guilt was founded ...[14]

30 Analogous reasoning applies, in my view, when the judge is assessing for the purposes of s 24(1)(b) what view the jury might rationally take of the evidence of conduct. That is, the judge is obliged to consider an innocent explanation even if it is not 'of equal strength' with the incriminating explanation advanced by the Crown. The judge is only entitled to make an affirmative determination under s 24 if satisfied that a rational jury could conclude, on a consideration of the whole of the evidence, that the innocent explanation put forward was untenable.

31 For an alleged lie to be capable of being used as evidence of an implied admission of guilt, it must be a 'deliberate and proven lie of a material nature'.[15] In Russo, Winneke P (with whom Charles JA agreed) said:

It must be constantly borne in mind that very few 'lies' told by an accused person will amount to implied admissions of guilt; and that those that are must be clearly demonstrated to be untrue and material. Most lies told by an accused person will merely affect his credit, or the credibility of the case which he is advancing.[16]

32 In my view, the evidence in this case falls far short of 'clearly demonstrating' that Mr Scriven was lying when he said 'I've been stabbed too'. First, and most obviously, he had a serious gash in his right arm at the time he made the statement. Secondly, the evidence before the jury does not enable any conclusion to be drawn about how that wound was sustained.

33 The prosecution submission is that, on the evidence, the jury could be satisfied that Mr Scriven had been holding a knife up his sleeve before and during the fight with Mr Bayley, and that the wound was accidentally self-inflicted. The prosecution case is that, in anticipation of being in a fight, Mr Scriven had armed himself with the knife and was holding it up his sleeve during the fatal struggle.

34 The difficulty with this argument is that the evidence regarding the wound - both from the photographs and from the doctor who treated Mr Scriven at the hospital shortly after - is inconsistent with the knife having been held concealed in the sleeve. It might have been expected that any movement of the knife within the sleeve would have been in the direction from wrist to elbow, and that any resulting wound would have followed the same direction. According to the photographs, however, the wound is lateral. That is, there is an incision on the inside of the right arm and another on the outside of the right arm. Moreover, the recollection of the treating doctor was that it appeared that there was a 'tunnel' between the two incisions, suggesting that the knife had passed through from one side of the arm to the other. Plainly enough, it strains credulity to infer that a knife held vertically up the sleeve could have exerted such horizontal force while still in the sleeve.

35 When this was pointed out, senior counsel for the prosecution contended that the wound may have been sustained when Mr Scriven had the knife in his hand before and during the stabbing of Mr Bayley. Assuming that to be a possibility, it would prove nothing about Mr Scriven having armed himself in advance. Crucially, there is no evidence of how, or when, Mr Scriven stabbed Mr Bayley. All that is known is that there was a stabbing, and that Mr Scriven admits that he did it.

36 For these reasons, in my view, the statement 'I've been stabbed too' is not able to be 'clearly demonstrated to be untrue'. There is simply insufficient evidence to enable the jury to be satisfied that it was a knowingly false statement.

37 For completeness, it should be pointed out that the prosecution relied not only on the words actually used but also on what was said to be implied by the words. The intent of the false statement, so it was said, was to convey to those in the vicinity words to the following effect:

Well, hang on, I've been stabbed too, so I was really acting in self-defence.

The false statement about being stabbed was made deliberately, it was said, 'to give that false impression' about the nature of the altercation.

38 In response, defence counsel submitted that this was an example of impermissible circularity of reasoning. They drew attention to the following passage from the joint judgment of Ormiston and Charles JJA and Vincent AJA in R v Laz:[17]

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 'bootstraps' argument and could not be countenanced ...[18]

39 Their submission was that the jury could only determine whether the implied statement - that he was acting in self-defence - was false if they first determined whether the Crown had excluded the defence of self-defence. In other words, the jury would have to decide the question of Mr Scriven's guilt - including that he was not acting in self-defence - in order to decide whether the statement was a lie.

40 In my opinion, this submission should be upheld. As I have already indicated, the objective evidence shows that Mr Scriven was having to defend himself at the time he stabbed Mr Bayley. Logically, therefore, the jury would only be able to conclude that the implied assertion 'I was acting in self-defence' was false if they first reached a conclusion (beyond reasonable doubt) that he was not.[19]

41 Several eyewitnesses have given evidence that, after stabbing Mr Bayley and then going inside, Mr Scriven opened his door and laughed in the direction of Mr Bayley and those who were attending to him. The prosecution contends that this evidence, if accepted, would establish that the accused:

showed a callousness towards [Mr Bayley] which is inconsistent with [him] having acted in self-defence; and was pleased to see [Mr Bayley] really seriously injured.

42 The prosecution contends that this conduct reveals Mr Scriven's 'state of mind at the time he stabbed [Mr Bayley]', and shows that he

knew or believed that he had stabbed [Mr Bayley] intending to kill him or cause him really serious injury and that he was not acting in self-defence.

43 In my opinion, this evidence is not reasonably capable of being viewed by the jury as evidence that Mr Scriven knew he had:

(a) stabbed Mr Bayley with intent to kill or cause really serious injury; or

(b) not acted in the belief that he needed to defend himself.

44 In my opinion, the act of laughing in these circumstances is just as likely to have reflected Mr Scriven's relief, or satisfaction, or even triumph, at having survived what he perceived to be a potentially lethal attack on himself. By itself, the conduct says nothing about:

(c) what he had believed he had to do in order to defend himself.

45 Taking the evidence as a whole, the Crown case establishes that:

• fights between men in Thexton Street were a commonplace event;
• such fights were conventionally viewed as being between the two involved, such that others would not interfere;
• in that context, no special significance would be attached to a victor crowing over a loser.

46 As I have said, Mr Scriven knew that there was overt hostility towards him. The first aggressive acts were by others, who had - and knew they had - strength in numbers. Moreover, Michael Hill's opening statement to Mr Scriven was aggressive and was expressly made in retaliation for something allegedly said earlier by Mr Scriven. There was, as a result, an air of revenge or reprisal. In those circumstances, for Mr Scriven to have been triumphant (if indeed he was) seems to me to be unremarkable.

47 In short, the jury could view the conduct of laughing as wholly consistent with a belief on Mr Scriven's part that he had acted in self-defence. Moreover, it is neutral as to what he had actually done and what he had believed it necessary to do in order to defend himself.

[2] The reasons are expressed as if published at the time of the ruling.

[3] Crimes Act 1958 s 9AC. [See now Crimes Act 1958 s 322K ]

[4] [2014] VSC 276, [21]-[23] (emphasis added, citations in original).

[6] [1998] 3 VR 720 ('Cengiz').

[7] [2006] VSCA 263; (2006) 16 VR 26 ('Ciantar').

[8] R v Lam [2005] VSC 292, [7] (Redlich J).

[9] Ciantar [2006] VSCA 263; (2006) 16 VR 26, 48 [72] (emphasis added).

[10] This anticipatory assessment is similar to that required of a judge in determining, at common law and for the purposes of s 137 of the Evidence Act 2008, what probative value a jury acting reasonably could assign to a piece of evidence: Dupas v The Queen (2012) 40 VR 182, 219 [141].

[11] Cengiz [1998] 3 VR 720, 735.

[12] [2010] VSCA 357 ('Mannella').

[13] Ciantar [2006] VSCA 263; (2006) 16 VR 26, 40 [44].

[14] Mannella [2010] VSCA 357 [43], [44].

[15] R v Russo [2004] VSCA 206; (2004) 11 VR 1, 3 [6] ('Russo').

[17] [1998] 1 VR 453, 466 ('Laz').

[18] See R v Lam [2005] VSC 292, [26]; DPP v Lawson [2012] VSC 528, [15]-[16].

[19] See Laz [1998] 1 VR 453, 466; R v Sirillas [2006] VSCA 234, [19].