Leyshon v The State of Western Australia [2006] WASCA 132

Leyshon v The State of Western Australia [2006] WASCA 132 - WASCA 2006 case summary — Zoe

[22]

"What occurred when you were on the ground?---Basically we were both fighting at each other. I remember getting up, trying to, like, kneeling up and being bitten on the leg. I don't know - like, I remember - I was punching her. She punched me. She was grabbing at my hair. I went to kneel up like that. I had my leg bitten and at that time I just reached out and there was a dressing-gown cord, a dressing-gown.

So where was the dressing-gown?---Immediately to my right.

Where was it in relation to the door? We've got a photo of it?---Yeah; it was hanging on the back of the door - yeah.

Do you know where the dressing-gown cord was in relation to the dressing-gown?---I believe it was wrapped around it.

You've told us that you grabbed hold of the dressing-gown cord?---Yeah.

What position were you in when you did that?---I was kind of kneeling, kneeling down next to the door.

Where was Dianne at that stage?---She was kneeling sort of adjacent to me.

What did you do with the dressing-gown cord?---At that time - when I grabbed the cord it just came out and I just wrapped - I wrapped it around her neck.

Do you know how many times?---I think I wrapped it around twice.

Okay?---Yeah. To the best of my memory I remember just - I, like, tied a bow and just walked, just walked, just left straightaway, just walked out of the house.

When you tied the bow how did you tie the bow?---Just the way you would tie your shoe.

All right. Did you do anything with the cord that was around her neck?---During the course of tying it, like, I pulled it and then tied the knot, and then just walked out, just walked.

What was your intention when you did that?---Just to scare her, like, to scare her off. I mean, we were having quite a vicious fight, you know. I just wanted to sort of - yeah, just give her a scare basically, you know.

When you left what did you understand her situation was?---When I left there I believed she was alive.

...

Can I just for a moment take you back to the fight? You've told us that you put the bathroom robe belt round her neck to scare her. What were you - during the course of the fight up until that fight what were you thinking towards her?---I wasn't thinking anything towards her, I don't know, other than - like, we were embroiled in a fight at that time. I didn't have any particular feelings. I don't know."

[24]

"What you were worried [about] was the thing around her neck, wasn't it?---Not in particular, no. I was worried about the whole thing.

You took hold of the bathrobe tie, you took that out of the gown?---Yeah, I grabbed that. Yep.

When you did that Dianne wasn't in a position to resist, was she?---I can't recall exactly.

Well, by that stage she wasn't fighting back, was she?---There was a - I can't say no for certain, yeah.

She was on the ground, wasn't she?---Yeah, we were both on the ground. Yep.

No. She was on the ground, you got the bathrobe tie?---Yeah, I was also on the ground.

Then you tied it round twice. Is that right? Her neck?---Yep.

But after you tied it once you put a knot in it?---That's incorrect, no.

You remember we've heard from John Sinclair?---Yeah, I remember that.

About there being more than knot [sic]?---Yep.

And he told us underneath was a double knot. Do you remember that knot?---That's simply not true. No.

You seem to remember there wasn't a second knot?---I remember the knot that I did as I left, as I walked off, which was to me a bow.

You put the tie around her neck so you could pull on it, didn't you?---Like I said before, I was trying to - I was just trying to scare her, you know?

You were trying to strangle her, weren't you?---I was trying to - I was trying to give her a fright, I was trying to scare her.

You told the police you were trying to strangle her and you told us earlier that you were trying to strangle her?---Well, yeah, that was - it wasn't my intention to strangle her, you know, for any amount of time, I just wanted to scare her.

You put the rope - the tie around her neck and you pulled it tight?---Yeah.

And that's because you were trying to strangle her?---It's because I was just trying to give her a fright, trying to scare her.

It was tight, wasn't it?---Yeah, I think [it] was. Yes.

Do you remember John Sinclair told us that he had difficulty getting the knot out and he couldn't get his fingertips under the tie?---I remember that, yeah.

It was as tight as that, wasn't it?---I don't know.

You pulled it tight so she couldn't breath [sic]?---No, it wasn't my intention. No.

But that's what you do. Do you agree?---Yeah, that's what's happened, yeah.

And that's what you were trying to do. You were trying to strangle her?---No, I wasn't trying to strangle her; no, no.

Mr Leyshon, what do you say you were trying to do?---I was trying to - it was during a heated fight. We'd both been fighting and I just wanted to, like, scare her, you know.

Did you ask her if she was scared afterwards?---I just walked off. As soon as I did that I walked off.

Because it was finished?---I don't know. I don't know.

What, you wrapped the tie around her neck. You tied it tight, you pulled on it. You kept the pressure on it?---Not for any considerable amount of time, no, that I remember.

Dianne by that stage was unconscious, wasn't she?---I don't know. I don't know that for sure, no.

Didn't you tell the police that?---Yeah, I believe I did but I couldn't tell for sure.

Or was it just that you'd finished things off and it was time to leave?---No, that wasn't the case; no."

[72]

"10 Liberato is certainly not a happy vehicle from which to distil any refinement of legal principle in respect of the directions to be given in a criminal case about the onus and standard of proof. The majority, Mason ACJ, Wilson and Dawson JJ, did not deal with any such issue. Their Honours confined themselves to the proposition, for which the case is authority, that the High Court is not to be regarded as a final Court of Criminal Appeal and it will not grant special leave to appeal in criminal cases unless some point of general importance is involved which, if wrongly decided, might interfere with the administration of criminal justice. It may be that in that regard later statements by the court would require that proposition, put broadly in those terms, to be qualified, but that is not to the point.

11 Brennan and Deane JJ, the other members of the court, would have granted special leave to appeal. Their Honours noted that in that case, on a number of occasions, the trial Judge in his directions to the jury had effectively reversed the onus of proof. Their Honours regarded that to be, as undoubtedly it is, an error of a fundamental kind effectively vitiating the trial process and preventing the application by a Court of Criminal Appeal of the proviso that, despite there being found a point which would cause an appeal to be allowed, the appeal will be dismissed if no substantial miscarriage of justice is thought to have occurred.

12 In discussing that question, Brennan J referred to the directions of the trial Judge which discussed the opposing stories of prosecution and defence witnesses and effectively invited the choice between the opposing stories rather than causing the jury to concentrate on the question whether the Crown had proved its case beyond reasonable doubt. In that context it was clearly important, as Brennan J remarked, that the jury should be directed that if they did not believe the defence evidence, but preferred to accept that given by witnesses favourable to the prosecution, they should not convict unless persuaded of guilt beyond reasonable doubt by the evidence they did accept. Further, if the jury did not positively disbelieve the evidence consistent with innocence, then although that evidence was not positively accepted, it might still give rise to a reasonable doubt.

13 In the judgment of Deane J, the error made by the trial Judge was embodied in the observations which effectively reversed the onus of proof. In the end his Honour concluded, at 519 - 520, that although it might well be the case that the orthodox directions given by the trial Judge in respect of the onus and burden of proof would have prevailed, the jury might have been confused into taking the view that their task was essentially one to choose between the evidence which supported a verdict of guilty and the evidence which was consistent with a verdict of not guilty.

14 In my opinion it is clear that Brennan J was not intending to lay down any particular addition of principle to the form of direction required in relation to the onus and standard of proof, but was seeking to make it clear that if the directions of the trial Judge included observations about conflicting evidence, care should be taken to avoid any observations which might compromise the clarity and effectiveness of the directions of law on the onus and standard of proof."

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (126 paragraphs)

Leyshon v The State of Western Australia [2006] WASCA 132 (30 June 2006)

Direction concerning self-serving portions of video record of interview

Suggestions that some witnesses must be deliberately lying

Parties

Legislation Cited (2)

Cases Cited (8)