Court of Appeal (Vic)|2010-11-18|Before: NETTLE, NEAVE and HARPER JJA

Ellis v The Queen [2010] VSCA 302 (18 November 2010)

1 On 6 November 2006, the applicant was charged with the murder of Naomi Bernaldo on or about 19 September 2006 at Creswick, near Ballarat. Since then he has four times stood trial for her murder. The first trial began on 2 June 2008 and ended the following day when the jury had to be discharged. The second began on 5 June 2008 and ended on 10 June 2008, which was the third day of the trial, when that jury had to be discharged. The third trial began on 11 June 2008 and ended the same day when that jury had to be discharged. The fourth began on 13 June 2008 and concluded on 25 June 2008 with the applicant convicted as charged.

2 The applicant now seeks leave to appeal against the conviction on three grounds:

• Ground 1: that the judge erred in the directions which his Honour gave to the jury as to lies which the Crown contended were evidence of consciousness of guilt.

• Ground 2: that the judge erred in admitting evidence of two incidents in or about March 2006 as evidence of the nature of the relationship between the applicant and the deceased.

• Ground 3: that the verdict was unsafe and unsatisfactory.

3 In R v Ciantar,[1] this court set out the steps which a trial judge should follow when the Crown contends that lies or other post-offence conduct constitute evidence of consciousness of guilt. As was there explained, it is ordinarily necessary for the trial judge:

b) To identify the evidence which is capable of demonstrating that it is a lie.

c) To identify the issue in respect of which the Crown relies on the lie as evidence of consciousness of guilt.

d) To identify the acts facts and circumstances which are said to show that the lie bespeaks consciousness of guilt for the purposes of that issue.

4 As was also explained in Ciantar, the identification of lies said to evidence consciousness of guilt is preferably undertaken before the commencement of evidence and, in any event, before the commencement of final addresses, by requiring the Crown, in the absence of the jury, precisely to delineate each lie sought to be relied upon as evidence of consciousness of guilt (so that the judge can determine whether the lie so identified is capable of evidencing consciousness of guilt and, if it is, can later define the lie for the jury in the course of summing up).

5 In this case, instead of identifying individual lies, the judge identified what he described as 'an overall lie', which he told the jury:

is to be seen in this way: If you look at the whole of the evidence and I will take you through all of it in a moment, the whole of the evidence of what the accused man said about the departure of the deceased Naomi Bernaldo, was he telling lies about it? Have the Crown satisfied you beyond reasonable doubt, that he advanced an untruthful version?

6 Counsel for the applicant submitted that so to approach the matter was fraught with problems. Fundamentally, it lacked the sort of precision demanded by the High Court in Edwards v The Queen.[2] It also failed to identify the evidence necessary to demonstrate that the statements alleged to be lies were lies. It was deficient, too, in that it created confusion as to the acts, facts and circumstances which were said to show that each alleged lie bespoke consciousness of guilt. In effect, counsel contended, it left the jury at large and unguided.

7 At first sight, there appears to be force in those submissions. It is unusual to attempt to define lies alleged to demonstrate consciousness of guilt in terms of 'an overall lie'. One's initial reaction is that the judge must have overlooked the need to define the lies with precision and that his Honour's failure to do so may have caused a miscarriage of justice.

8 Closer examination of what occurred shows that the situation is not as simple as that. In fact, as might be expected, the judge was well aware of the need to define consciousness of guilt lies in accordance with Edwards, and of the procedure for achieving that described in Ciantar. Accordingly, at a stage of the trial well before final addresses began, his Honour and counsel together went through the process of identifying the lies and other circumstances alleged to evidence awareness of guilt.

9 In the course of that process the judge came to the view, as he told counsel, that the lies which were capable of precise identification were really just parts or features of an 'overall lie' as to the circumstances in which the deceased disappeared and, therefore, that, unless his Honour gave the jury a prophylactic Edwards direction in relation that 'overall lie', there would be a serious risk of the jury reasoning impermissibly to a conclusion of guilt on the basis of aspects of the overall lie which were not specifically identified as lies. At the same time, as his Honour also told counsel, he was concerned that, if he gave separate Edwards directions in relation to the precisely defined lies and the overall lie, the jury might well place undue emphasis on the individual precisely defined lies. And in order to avoid that risk and, at the same time, the risk of the jury impermissibly reasoning on the basis of the overall lie, his Honour concluded that it might be preferable and, therefore, fairer to the applicant to put the individual precisely defined lies to the jury as parts or features of the overall lie, and to give just one overall Edwards direction in relation to the overall lie including those features.

10 Evidently, the prosecutor and defence counsel agreed with the judge that the his Honour should follow that course. Indeed, defence counsel urged his Honour to approach the matter on that basis rather than by reference to individual lies.

11 Consistently with the notion of 'the overall lie', the prosecutor began his submission to the jury as to consciousness of guilt, as follows:

You know something of the way this case is constructed against the accused. It's a case described as a circumstantial case. A combination of different circumstances and statements by the accused that you have variously heard, statements which I'll take you through, which I say to you amounts to some very considerable lies. And those lies can by used by you in determining his guilt. Some of them I say to you will be lies that you ought to look at and say 'only a man guilty of this offence could say the things he said to various people about what happened'.

12 The prosecutor then proceeded to the evidence pertinent to the overall lie, among which he identified the following ten features:

[Y]ou know from the accused's account to Tanya [Ellis, the accused's estranged wife] that as of 29 September [2006] she's [the deceased's] gone. Of course he claims that she [the deceased] has left him, but really he's making a statement to Tanya that she's nowhere around at the moment. And of course if he's killed her he's got to give an explanation as to where she is... So he starts on the lies that eventually unravel for the different version that he gives [sic].

So, Paul Seager, he tells you that he gets this [SMS text] message some time in October [2006] ...he tells you of the [sic, his] recollection the message says, 'it's Naomi, I've gone away, I'm no good to myself, I'm no good to Darren [the accused], I'm no good to you. Please don't phone me because if they know I have a phone I'll get kicked out'... even the contents of the message in my submission to you, betray the fact that it's a lie. It's a message sent by the accused. Naomi is well and truly dead by the time this message arrives.

When Doreen Seager gave evidence, she spoke of a time when after the last time when ... there was a conversation that she had with Darren [the accused]

on the telephone and, in that conversation, Darren told her that Naomi had left him and gone away.

She [Doreen Seager] is asked, did she ever see the note [which the accused told her Naomi had left on the coffee table when she left him] and she said, 'No, look I asked Darren to bring it so we could see it, but he said he'd thrown it away'. This note in itself is the subject of what I say to you is a very, very important lie in this case, because you'll remember, and I'll take you to it later on, but when he's speaking to the police, no note. It's [another] example of him changing the version of events, depending on who he's speaking to.

[Tanya Ellis] told you that on the occasion after Naomi was no longer with Darren, that Darren had told her that he'd woken up to the sound of a car and that it was around seven in the morning and that she, meaning Naomi, had packed all her stuff and left. 'He also told me that she took 200 out of his wallet. I said "200?" And then he said, "No, hang on a minute, Tan, it was 300"'...

Just focus on this account. This is a slightly varied version. This is 'woke up to the sound of a car', that's different. It was around seven in the morning, that she's packed all her stuff, so he must have perhaps seen that, worked it out, I don't know, but in any event she's told by the accused 'took $200, no maybe it was 300', from his wallet. Not from his little hidey hole that he tells the police about. You know, when he later on is interviewed, he tells them he's got about $600 in this little place in the bedroom. Different story here to Tanya...

[Tanya Ellis is] told that he says Naomi had been in rehab and it was information given to him by one of his friends, or her friends, I beg your pardon.

Later on in her evidence when she's asked about that very issue, about Naomi being in rehab, he told her, 'well, in my recollection it was Doreen. It's not a name I frequently use in my vocabulary so it sticks in my head so it's a name that I assume that's - that it was.' 'Had you ever heard of a Doreen?' 'No. I don't know who Doreen is.'

What an amazing piece of coincidence. Tanya Ellis doesn't know anyone called Doreen, doesn't know anything of her connection with this case, as you might well understand because she hardly even knows Naomi. ...what an extraordinary piece of evidence, that out of the mouth of the accused the person who's telling him that Naomi has gone into rehabilitation is Doreen. And you know from Doreen's evidence she knows nothing about it.

So [after the deceased's body is discovered some weeks later] he goes and he speaks, after making a phone call - he talks to this policeman. He said that his girlfriend had been missing for about six weeks and he hadn't heard from her since. He then detailed a conversation. He is asked about what had happened, and he says, 'I don't know. She just left in the middle of the night about six weeks ago. It was around my sister's birthday, 30 September.' The policeman says, 'What, in the middle of the night?'. He says, 'Yes. I was asleep one night and she just took off'. 'Did she take anything with her?' 'About three or four bags of clothes, jewellery, shoes, boots.' 'Did she leave a note or anything?' 'No, it was all strange. She had bipolar, or something like that...'

... But he's telling this version; he's asleep one night and she just took off. Different from the Tanya version. This is not quite the same, you might think, different version again.

He doesn't, and you might think significantly, mention that he'd got this text message that he [told the Seagers he had received from the deceased after she left]... He goes on to say, when he's asked, 'What else can you tell me about Naomi?' 'Not much, she just took off one night while I was sleeping. I know she took about two or three hundred that I had stashed away'. Not from the wallet. She doesn't take from the wallet this time, he says 'stashed away'.

That takes me to the next of the police interviews ...'When was the last time you saw Naomi?' Darren, 'Mate, I'm not sure of the exact date it was about the 27th September some time. Yes, she just left and you know, I woke up and she was gone basically'. He's asked, 'You haven't heard from her since, anything like that buddy?' 'Have not heard'. That can't be right. He tells Doreen that he had a note, had a text message the same as her text message. Straight away he's talking to the police, in circumstance where he now knows Naomi's dead, been found. He changes his story again and on it goes.

There he is, close [to] the end [of the police interview], and he volunteers this. He says, 'you know, I'm not - I can't stand, you know, violence against women, like it's not in my nature.' Just remember Bianca Fraser's evidence about that [that in March 2006 she had seen the accused pulling the deceased into a car by the back of her hair] when you hear that. And I suppose what I'm suggesting to you, by this stage, if it hasn't been made clear to you, let me make it perfectly clear, don't trust this accused man with the truth. He'll tell you anything. He'll tell you lie upon lie upon lie to cover his guilt of the murder, to distance himself from putting Naomi in the lake in the way that we've described.

And you probably get the clearest impression of that [scil. that 'He'll tell you lie upon lie upon lie to cover his guilt of the murder, to distance himself from putting Naomi in the lake in the way that we've described'] when you come to the next part of the evidence. That's the tape recorded, video tape recorded interview that you saw...You don't just hear what he says, you get to see him. Shifty, evasive, looking down, looking away, putting his hands over his face trying to perhaps hide his expressions at some times.[3]

23 In effect, the prosecutor then concluded his address to the jury with this:

They are largely the piece[s] of evidence I want to draw your attention to, you know there have been some parts of the evidence that are probably important, but it's the combination of the circumstances that you know of, and the lies that the accused man has told about Naomi going. All the different versions...about whether he was awake whether he heard a car, what time it was, all the things about packing the gear in the bedroom and not waking him. Significant lies, very significant lies in the context of the other circumstances of the case...[4]

(iii) The judge's directions to the jury concerning consciousness of guilt

24 Similarly, when the judge charged the jury, his Honour identified the lies relied upon as evidencing consciousness of guilt in the terms of the 'overall lie' as follows:

...the Crown have argued that the accused, Darren John Ellis, told a number of lies and I need to give you some directions about the way in which you can use evidence about lies...

...

...The second way[5] in which you may be able to use a lie is as an unspoken or implied admission by an accused person that he is guilty of a particular crime.

You may be able to use a lie in this way if you can reason that the accused told a deliberate lie and that the only reasonable explanation for him telling that lie [is] because he believed he had committed a particular crime, here, murder, and he believed that by telling the truth he would be implicated in that crime...

I now want to look at the lies from which you may be able to infer that the accused admitted his responsibility for the crime he has been charged with. It is quite difficult in this case, because it is really an overall lie, if you like, and it is to be seen in this way: If you look at the whole of the evidence and I will take you through all of it in a moment, the whole of the evidence of what the accused man said about the departure of the deceased Naomi Bernaldo, was he telling lies about it? Have the Crown satisfied you beyond reasonable doubt, that he has advanced an untruthful version? What are the matters you are entitled to look at, you look at the whole of the evidence on the subject, what has been said to each of the witnesses who received some evidence about it, [who] came here and gave evidence about it. You can look at what the accused man said in the various interviews that he has had with the police. You are entitled to have regard to what view you take of his appearance on the tape, of whether in your opinion as judges of people and judge's of events, he is a person telling the truth. If at the end of that, you come to the conclusion and you are satisfied beyond reasonable doubt that the accused was telling lies about the events, then you will be able to use that in the way that I described to you...[6]

25 His Honour then went on to outline the ten or so features of the overall lie to which the prosecutor had referred in his closing address, and added at the end of that summary the following directions as to the way in which the evidence of those features could be used:

If you accept that the accused's version of the events about the departure of the deceased from her home, and in doing so you are entitled to look at the complete analysis of the evidence and to look at what you see and hear on the tapes, and to have a look at the other parts of the circumstantial case.

If you accept the accused's version of events or give it sufficient credibility to create a reasonable doubt about the circumstances of the disappearance of Naomi Bernaldo, then that is the end of the matter and you would acquit the accused.

When considering whether or not the Crown has satisfied you that the accused's version of the departure of the deceased is untrue you must do so on looking at the evidence as a whole. ...

As I have already said, you may have regard to the fact that the versions given by the accused are depending on how you find them, inconsistent, particularly having regard to the questions of the mention of a car, the time of day, the place from which the money was stolen, the question of the note, but I have already said something to you about that. The issue of when and how the accused man had been contacted, and whether he had been contacted by the deceased, and what the nature of any message that he received was.

What does seem to become clear, is that although in the preparatory stage, as it were, after the time of her disappearance, there is some mention of a car and question of going to the taxi company. There is afterwards, in any discussion with the police, no question of a car being present discussed...

One other matter that you are entitled to look at is in relation to the question of what version the Crown has demonstrated to be true beyond reasonable doubt. You are entitled to look at the inherent likelihood or unlikelihood of particular events. How did the deceased leave and take with her four bags? How did she pack the bags and get the $300 in the middle of the night without waking the accused? If she was going into rehabilitation, was there any reason not to tell the accused of it? And why, if she was going into rehabilitation, an honourable thing, you might think, would she need to leave in the middle of the night? [The judge also mentioned the fact that the accused had not contacted friends who it might be expected could help her with rehabilitation, or her mother with whom at the time she had a close relationship and to the fact that personal belongings which she left behind which were of a kind one might expect her to have taken with her to rehabilitation.][7]

26 The judge then concluded his charge on consciousness of guilt with conventional Edwards directions (expressed in terms directed at the overall lie, including the identified features), to the effect that, before the jury could treat the lie as evidence of consciousness of guilt, they had to be satisfied that: the 'accused made the statement'; that it was a 'deliberate lie'; that 'it related to some significant circumstance or event connected with the crime you are considering'; and that 'the reason why the accused told a lie [was] because he believed he had committed the crime you are considering, and he believed he would be implicated in that crime if he told the truth'. His Honour also warned the jury of the need to consider other possible motives to lie.

(iv) The effect of the judge's directions

27 The judge faced a difficult task in attempting to balance the requirement of precise definition of the lies (in accordance with Edwards) against the avoidance of risk of the jury misapplying consciousness of guilt reasoning to statements not identified as precisely defined lies (as discerned in Dhanhoa[8]) and, at the same time, avoiding over-emphasis on the precisely defined lies and consequent unfair prejudice to the applicant.

28 The question is whether the solution which the judge adopted was acceptable. In the relatively unusual circumstances of this case, we think that it was. Possibly, it could have been done better by singling out two or three of the individual lies and treating the remaining elements of the overall lie as acts facts and circumstances which demonstrated that the individual lies were lies which bespoke consciousness of guilt. Counsel for the applicant accepted that there could be no objection based on Edwards if that had been done. But to have approached the task in that fashion would not have avoided the risk of the jury misapplying consciousness of guilt reasoning to the remainder of the overall lie and, if consciousness of guilt directions had been given separately in relation to both the precisely defined lies and the remainder of the overall lie, that would have run the risk of over emphasising the significance of the precisely defined lies.

29 In any event, given that the judge took the course he did with the agreement of both counsel, and indeed with the active encouragement of defence counsel, the applicant should not now be heard to complain about it unless it is plain that the course which was adopted was productive of a miscarriage of justice.[9]

30 In our view, there was no miscarriage of justice. Although the lies were not defined with the sort of precision contemplated in Edwards, the judge did define them, in terms the overall lie:

it is really an overall lie, if you like, and it is to be seen in this way: if you look at the whole of the evidence and I will take you through all of it in a moment, the whole of the evidence of what the accused man said about the departure of the deceased Naomi Bernaldo, was he telling lies about it? ...

31 In the particular circumstances of this case, we think that would have brought home to the jury that what was alleged to evince consciousness of guilt was that each of the applicant's statements to Tanya Ellis, the Seagers and the police - that the deceased disappeared in the middle of the night without warning and that he woke the next morning to find her gone - was a lie.

32 As has been seen, the judge also went on, consistently with Edwards and Ciantar, to identify the acts, facts and circumstances capable of demonstrating that the overall lie was a lie, as follows:

What are the matters you are entitled to look at, you look at the whole of the evidence on the subject, what has been said to each of the witnesses who received some evidence about it, [who] came here and gave evidence about it. You can look at what the accused man said in the various interviews that he has with the police. You are entitled to have regard to what view you take of his appearance on the tape, of whether in your opinion as judges of people and judge's of events, he is a person telling the truth...

33 In our view, that was adequate to bring home to the jury that the acts, facts and circumstances which the jury were entitled to take into account in determining whether the applicant's statements to Tanya Ellis, the Seagers and the police were fabrications, were the inconsistencies in matters of detail between the three statements and the inherent improbability that the deceased would have left the applicant in the middle of the night in the manner which he stated, without first letting anyone know, and without taking her treasured personal possessions.

34 Counsel for the applicant argued that it was fundamentally and seriously wrong for the judge to invite the jury to have regard to the applicant's appearance on the video-tape of his police interview. In counsel's submission, the only permissible means of determining that a statement is a lie which bespeaks consciousness of guilt is by reference to evidence independent of the maker of the statement which shows that the statement is false. Thus, he said, the applicant's demeanour was irrelevant.

35 We do not accept that submission. As Kitto J said in Woon v The Queen:[10]

... whether or not an accused person's reactions to statements or questions put to him in the course of an interview indicate either that he admits any particular fact suggested to him or only in his own mind recognizes that it is a fact, those reactions may have evidential value upon the ultimate question of fact in the case because they show, when considered in the light of the circumstances, that he has a consciousness of guilt of the crime charged. It cannot be that while the jury may be allowed to take account of conduct of the accused person as showing his state of mind upon a subsidiary or primary question of fact they may not take account of it as showing his state of mind upon the ultimate question of fact. In the present case, in my opinion, it was in accordance with law that the jury was invited to consider the significance of the applicant's answers to such questions as he chose to answer and to treat as material upon which to found a verdict any revelation they might think those answers afforded of what they would have discovered upon the question of guilt or innocence if (to repeat the trial Judge's vivid expression) they could have looked inside the applicant's mind. In my opinion the charge to the jury on the point under consideration was correct and special leave to appeal should be refused.[11]

36 Counsel for the applicant contended that Woon had since been overtaken by what he described as the requirement set by Edwards for a lie evidencing consciousness of guilt to be proved by evidence independent of the putative liar.

37 We do not accept that submission either. The only requirement for independent evidence identified in Edwards was that, if a lie evidencing consciousness of guilt is sought to be relied upon as corroboration of the evidence of an accomplice, the lie must be proved as such by evidence independent of the accomplice. That is different to inferring consciousness of guilt by reference to the demeanour of the putative liar. Further, contrary to the idea that it is somehow implicit in Edwards that demeanour is irrelevant to the determination of consciousness of guilt, HcHugh J plainly implied that it is relevant:

In assessing the effect of the various statements in the accused's evidence, it should not be forgotten that the learned trial judge and the jury had an opportunity, denied to an appellate court, of judging the demeanour of the accused. When that advantage is borne in mind and the evidence of the accused is read as a whole, I think that it was open to the jury to conclude, in the words of Thomas J in the Court of Criminal Appeal, that the accused's evidence 'changed from a profession of complete ignorance of any relevant detail to an admission of knowledge of a number of relevant details'.[12]

38 Counsel for the applicant argued that, even so, a jury should exercise great care in assessing guilt by reference to demeanour and that the judge was in error in failing to warn the jury of the care which was required.

39 Arguably, there is more force in that contention. In R v Favata,[13] an application for leave to appeal against conviction was upheld on the ground, among others, that the trial judge erred in leaving the accused's demeanour to the jury as relevant to the assessment of consciousness of guilt without directing them as to the care which was required. Vincent JA, who delivered the principal judgment, said that:

Although I can see no basis in principle for excluding the reaction or demeanour of a person, in an appropriate context, from the kinds of behaviour that are capable of constituting implied admissions of guilt, as a practical proposition I consider that it would be rare indeed when a judge would be entitled to leave evidence of demeanour or reaction to events or disclosures before the jury on this basis. Among the reasons for concern would be the potential imprecision and unreliability of the observations. Frequently, but not here because the interview was recorded on video-tape, it would be very difficult for the jury, and indeed the judge for that matter, to be confident that they actually knew how the person did react. In any event, at most what could be observed would be the external manifestations of internal responses. The dangers of misinterpretation which, to some extent at least, may be influenced by the subjective views and attitudes of the observer are, I would suggest, apparent.

...

In any event, having decided that the reactions of the applicant to the playing of the recording could be used in this way, although his Honour did remind the jury of the submissions by the applicant's counsel on this aspect, he did not provide any instruction with respect to the particular care with which they had to approach the dangerous task of drawing inferences from demeanour.[14]

40 Similarly, in R v Barrett,[15] where a trial judge directed the jury that the manner in which the accused conducted himself during the course of a video-taped police interview was capable of supporting consciousness of guilt reasoning, an appeal was upheld on the basis that the judge did not sufficiently warn the jury of what the court said were the dangers of drawing an inference of consciousness of guilt from the accused's demeanour. Eames JA, who delivered the principal judgment, held that:

... Mr Holdenson submitted that the jury were being invited to conclude from the demeanour of the applicant that he was behaving the way a guilty man would behave.

Even if the videotape was capable of bearing that inference, as I shall presume to be the case, this was a case, like Favata, in which the jury ought to have received a very clear warning about the dangers of drawing such an inference from demeanour. No warning, at all, was sought or given as to this danger. The jury should have been warned by the judge to be cautious about placing undue weight on the demeanour of the accused as an indicator that he believed himself to be guilty of any offence. Among other relevant matters, the jurors should have been warned to have regard to the possibility that, when interviewed, the applicant was under the influence of drugs or may have been affected by tiredness or exhaustion; they should have been directed not to speculate about what would be the 'normal' reactions of a person subjected to the pressures of such an interview, whether the allegations be true or false. The jury should have been directed that a conclusion - based on demeanour displayed during such an interview - that a person displayed consciousness of guilt in such circumstances might be very unfair and could amount to a reversal of the onus of proof.

Without such strong directions, the invitation to place reliance on demeanour in the record of interview so as to infer consciousness of guilt carried a high risk of injustice. I would uphold the complaint about the inadequacy of the directions on this basis.[16]

41 It does not follow, however, that the failure of a trial judge to direct a jury to exercise particular care before inferring consciousness of guilt from demeanour must always result in a miscarriage of justice. Whatever the utility of such a warning, it was not given in Woon or in Edwards and the High Court did not say in either case that it was mandatory.

42 Secondly, in point of principle, judicial directions as to particular dangers in the assessment of evidence and what it may signify are only required in relation to dangers of which members of the jury are unlikely to be aware. Ordinarily, it is unnecessary, even if sometimes desirable, to give directions to a jury on dangers that should be obvious to jurors as the result of their common sense and ordinary human experience.[17]

43 Thirdly, it is significant that, in Barrett,[18] there was a real possibility that the accused was drug affected when interviewed, or may have been affected by tiredness or exhaustion, and to a large extent that appears to have informed the conclusion that the jury had to have those considerations specifically brought to their attention. In this case, there is no suggestion that the applicant was drug affected or tired or otherwise adversely affected in a manner which the jury would not have recognised and fairly taken into account.

44 Fourthly, as has been noted, the judge gave the jury a conventional Edwards direction which, in this case, included express instructions - to take care to distinguish between deliberate lies and the possibility of mistake, confusion and inability to remember; that the jury could not infer the existence of a lie unless satisfied beyond reasonable doubt that it was a deliberate lie as opposed to a mistake or the result of confusion or inability to remember; that the jury could not infer that a lie bespoke consciousness of guilt unless satisfied beyond reasonable doubt that it was told due to consciousness of guilt as opposed to panic fear confusion or anything else of that nature; and, further, that:

Remember though and do not for a moment resile from the proposition that it is for the Crown to satisfy you beyond reasonable doubt that the version that is advanced in general is untrue and that it is deliberately so.[19]

45 Given all that, it is hard to think that it would have added to the care with which the jury approached their task for the judge to have added still further to his directions an imperative, of the kind suggested in Favata, that the jury must exercise 'particular care' in approaching 'the dangerous task of drawing inferences from demeanour', or an incantation, of the kind conceived of in Barrett, 'that a conclusion - based on demeanour displayed during such an interview - that a person displayed consciousness of guilt in such circumstances might be very unfair and could amount to a reversal of the onus of proof'.

46 Fifthly, it is not without significance that experienced defence counsel did not seek a specific warning with respect to the supposed dangers of inferring consciousness of guilt from demeanour, and presumably so because it would have served only to add emphasis to the video tape which the defence preferred to avoid.[20]

47 Finally, as McHugh and Gummow JJ said in Dhanhoa:

... it is not enough to establish that a miscarriage of justice has occurred by showing that it would have been better if the trial judge had given an appropriate direction concerning the effect of lies or that there is a possibility that the jury may have reasoned that the accused was guilty because he had lied to the police. To succeed in the appeal, [the applicant] must establish that it is a reasonable possibility that the failure to direct the jury 'may have affected the verdict...'[21]

Ground 2 - Directions on relationship evidence

49 It will be recalled that the prosecutor referred in the course of his closing address to the evidence given by Bianca Fraser of having seen the applicant pull the deceased into a car by the 'back of the hair' in March 2006. That evidence was admitted without objection, as relationship evidence, pursuant to s 398A of the Crimes Act 1958. It is now contended, however, that the event was too remote in time from the deceased's disappearance in September 2006 to be probative of the applicant's relationship with the deceased at the time of the deceased's disappearance and that, as one isolated incident, it was in any event insufficient to establish anything about the relationship.

50 In our view, neither contention is persuasive. In R v Bastan,[22] Buchanan JA said that:

Whether evidence of events bearing upon a relationship of an offender and his victim is too remote depends upon all the circumstances of the case. The time between the events and the commission of the alleged offence is but one aspect of the matter....

The evidence was consistent with and formed part of the context of the other events that occurred in the course of the parties' relationship. In my opinion the evidence was relevant and significant...

51 Similarly, we consider that the evidence here was admissible as indicative of a circumstance relatively close in time to September 2006 which bore upon the relationship between the applicant and the deceased; would thus assist to explain the act charged; and would thereby assist the jury to choose between explanations that the deceased was murdered by the applicant or murdered by someone else.[23]

52 The idea that there must be evidence of more than one event in a relationship before evidence of any such event is admissible ill accords with principle and is unsupported by authority. It all depends on the other facts and circumstances of which there is evidence and the inferences open to be drawn on the basis of the totality. Here there was evidence of another event. Bianca Fraser gave the following evidence that she had seen the deceased with a bruise under her sunglasses in circumstances in which the applicant would not permit her to remove them:

Did you speak to her about it? --- Yes. I asked - I said 'take your sunglasses off' and it was followed by Darren saying 'she's not effing taking them off.'

And did she take them off? --- No.

53 Standing by itself, that might be thought of as no more than an indication of 'transient ebullitions of annoyance and anger on the part of the accused which immediately passed away and led to nothing'.[24] But taken in conjunction with the evidence of the hair pulling event, it assumed greater significance. The sunglasses incident occurred later in time, albeit only a little, than the hair pulling event and, even if the applicant's profane response to the suggestion that the deceased remove her sunglasses said nothing as to whether he was responsible for the bruising which they covered, the manner in which he spoke on that occasion implied that the unhappy aspect of the relationship evident in the hair pulling incident was neither isolated nor over.

55 Under Ground 3, it was contended that the case against the applicant was so lacking in weight that a jury properly instructed, understanding the burden and standard of proof, ought to have entertained a reasonable doubt as the applicant's guilt. Upon that basis, it was said that a judgment and verdict of acquittal should be entered.

56 We reject the contention. In our view, the circumstantial evidence of guilt was strong. It included that:

a) It was clear and not disputed that the deceased had been murdered by being stabbed and shot with a .22 weapon.

b) So far as was known, the applicant was the last person to see the deceased alive. According to the applicant, they went to bed together on the night that he last saw her alive and the next morning he woke up to find her gone.

c) The objective evidence showed that, up to the time of her disappearance, the deceased lived a hand to mouth existence for which she was dependent on a social security benefit. Yet, as from the day the deceased disappeared, she never again accessed any of her social security entitlement or bank account or, so far as could be ascertained, had any other dealings or contacts of the kind which one might have expected if she were still alive.

d) The deceased left behind close personal possessions to which she was known to be emotionally attached and which, if she had departed voluntarily, she would almost certainly have taken with her.

e) The deceased did not tell anyone that she was going, even though she had recently fallen pregnant to the applicant and, in those circumstances there was good reason to expect that she would have informed her mother (with whom she had a close relationship at the time), perhaps the Seagers, certainly other friends and, most importantly, the applicant, that she was going and where she was going.

f) Despite the fact that the deceased was pregnant, and the applicant said that he was pleased about it, he did not report the deceased's disappearance to the police until her body was later found in the circumstances described below.

g) The applicant's account of the circumstances of the deceased's departure was most improbable. It is difficult if not impossible to accept that the deceased could have packed up the bulk of her possessions into four bags and taken $300 from the dressing table in the bedroom which she shared with the applicant, without waking the applicant, or that she could have left in the middle of the night, taking her bags with her, given that she was unable to drive, in any event had no car and, so far as could be ascertained, did not call a taxi and was not observed by anyone else.

h) Several weeks later, the deceased's body was discovered when it floated to the surface of a lake close to the house in which the applicant and the deceased lived together.

i) She had been shot with a .22 rifle and stabbed with a knife and, although her wounds could not be matched to any particular weapons, the applicant was known to possess knives and a .22 firearm.

j) Her body had been bound around with chicken wire of the same general type as neighbours had given to her for the construction of a dog pen, bound with cable ties and weighed down with a 32 kg weight and volcanic rocks of a kind not available at the lake, but which were available to the applicant at the house from which the deceased was said to have disappeared. Although the cable ties used to bind the chicken wire could not be matched precisely with any of the various cable ties found on the applicant's property, they had similar properties to ties found in his shed and trailer. Evidently, the killer had intended that the deceased's body not be found but had not allowed for the effects of decomposition which caused it to rise in the water.

k) The applicant gave different versions of the deceased's departure to Tanya Ellis, the Seagers and the police. The differences included the time of day at which the applicant woke to find the deceased gone, whether he woke to the sound of a car, whether he contacted taxi companies to check whether the deceased had taken a taxi, whether the deceased left a note on the coffee table saying that she was going away - the applicant told Mrs Seager that she did and told the police that she did not - and whether the deceased sent a SMS text message to the applicant after her disappearance. Early in police interrogation, the applicant denied that he had 'heard' from the deceased since her departure, or 'anything like that'. It was only later when police put to him directly whether he had received a text message from the deceased that he said he had.

57 Apart from any question of consciousness of guilt, we consider that there was sufficient strength in the circumstantial case thus presented by the Crown to satisfy the jury beyond reasonable doubt that the applicant was the killer. In effect, in the particular circumstances of this case, there was no other reasonable possibility. We are, however, also satisfied that it was open to the jury to conclude beyond reasonable doubt that the applicant's story as to the deceased having left in the night, and he waking in the morning to find her gone, was a lie which bespoke consciousness of guilt that he had killed her and sought to distance himself from that conclusion. Either way, in our view, Ground 3 should be rejected.

58 It follows that the application for leave to appeal will be dismissed.

[5] The first way was as going to credit, as to which the directions were unexceptionable.

[8] Dhanhoa v R [2003] HCA 40; (2003) 217 CLR 1, 18 [60]; see also R v Chang [2003] VSCA 149; (2003) 7 VR 236, 239 [6] (Ormiston JA) and 254 [48] (Charles JA); Zoneff v The Queen (2000) 200 CLR 234, 263 [71]; R v Cuenco [2007] VSCA 41; (2007) 16 VR 118, 123 [16]-[18].

[9] _R v Ditroia and Tucc_i [1981] VicRp 28; [1981] VR 247, 252; R v Clune (No 2) [1996] VicRp 1; [1996] 1 VR 1, 6; R v Wilson [2005] NSWCCA 20; (2005) 62 NSWLR 346, 353 [24].

[11] See also ibid 539 (Taylor J), 540 (Menzies J) and 541-2 (Windeyer J); cf R v Favata [2006] VSCA 44, [145] (Vincent JA).

[12] [1993] HCA 63; (1993) 178 CLR 193, 213, in diss but not on this point.

[17] R v Matthews and Ford [1972] VicRp 1; [1972] VR 3, 15-16; Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555, 560-1.

[20] Stirland v DPP [1944] AC 313, 328.

[21] Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1, 18 [60] (citation omitted).

[22] [2009] VSCA 157, [18]-[19].

[23] Wilson v The Queen [1970] HCA 17; (1970) 123 CLR 334, 338-40; cf Tully v The Queen [2006] HCA 56; (2006) 230 CLR 234, 277 [143] (Callinan J).

[24] R v Barbour [1939] 1 DLR 65, 66; Wilson v The Queen [1970] HCA 17; (1970) 123 CLR 334, 338.

Ellis v The Queen [2010] VSCA 302

At a glance

Court

Decision date

Before

Source

Judgment (112 paragraphs)

Ellis v The Queen [2010] VSCA 302 (18 November 2010)

Parties

Cases Cited (12)