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[2013] NSWSC 704
Supreme Court of NSW
2013-05-27
Button J
Original judgment source is linked above.
EX TEMPORE Judgment 1The Crown Prosecutor has indicated that in his final address to the jury he proposes to rely on one alleged lie of the accused as demonstrating consciousness of guilt on his part. At my invitation, and in accordance with the authorities, he has identified it with precision.
Review of Evidence 2At the scene on the evening of 18 October 2011, the accused informed a number of police officers that he had attempted to contact Senior Sergeant Wanklin in Queensland by telephone. He referred to having rung but not getting through. 3References in the trial transcript are as follows. In the evidence of Senior Constable McLean at T522.37 the following appears. Recounting what the accused had said in answer to a question from Senior Constable Schmidt at Yugura Street, Senior Constable McLean gave evidence that the accused said at the scene on the evening of 18 October 2011: "Yeah I was talking to her about dinner then I went out and sat out the back and had a smoke. I walked back inside the kitchen and saw blood on the floor. I then started yelling out for her and found her in the bathroom floor. I moved the stick away and checked her pulse and heartbeat. There was nothing I could do. I rang Ron, he's a cop in Queensland. After that I went out the back and sat down and had a drink and a smoke." 4In the evidence of Senior Constable Schmidt at T655 the following appears, at T654.50 and following: "'Yeah, I was talking to her about dinner and then I went and sat out the back and had a drink and a smoke. I walked back in the kitchen and saw blood near the front door. I started yelling out for her and found her on the bathroom floor covered in blood. I moved the stick away and checked her pulse and heartbeat, there was nothing I could do. I rang Ron, he's a cop from Queensland. After that I went out the back and I sat down and I had a drink and a smoke...'" 5Although that evidence of the conversation is not word for word identical with the passage from the evidence of Senior Constable McLean to which I referred a moment ago, I approach it as evidence of the same exchange in conversation. 6Later on at T655.26, the following appears in the evidence of Senior Constable Schmidt: "Senior Constable McLean said, 'When did you ring him up?' He said, 'When I found her lying there dead. She always told me if anything happened to her for me to ring Ron. I rang him but I' [I interpolate that should be 'he'] 'wasn't available so I went back out the back and had another drink.'" 7From the preceding paragraph of the transcript commencing at T655.16, it is clear that the person under discussion in that portion that I have extracted is the Detective "Ron" from Queensland. 8In the evidence of Senior Constable Quick at T540.41, the following statement of the accused at the scene appears: "'then I walked in the front door and saw that stuff on the floor (blood) and thought she spilt red wine. I then walked into the bathroom and saw her there. I'm first aid trained. I felt her neck and wrist and stuff it she's been murdered. I moved the stick or something away from her, I then rang that copper in Queensland but I couldn't get through to him. I then walked out the back, had another glass of wine and then called you guys'." 9In an ERISP conducted in the early hours of the morning of 19 October 2011 the accused said: "Q197. All right. So after you, can you tell me what you did after you gave Ms Thomson the CPR pressure? A. I felt for, I felt for a pulse again. Q198. All right. A. There wasn't any. Q199. All right. A. And I just had to leave the scene then". 10A little later the following appears: "Q203. O.K. So then you said, can you tell me what you did after you left the bathroom? A. I went back out the back of the house where the cask of wine was and proceeded to have a few drinks out of that and made several phone calls". 11A little later at question 208 the following appears: "Q208. All right. Now, you've also told me that you've made some phone calls. A. Yes, I did. Q209. Can you tell me who you called? A. Well, Sandra had told me if she ever got into any sort of trouble, to call some Detective Sergeant Don, I can't recollect the surname now, but over, what's the name, Brisbane there, a Fortitude Valley detective in Brisbane. I attempted to get in touch with him". 12Despite the submission of defence counsel, I consider that in the ERISP the accused was saying that he had rung the police officer in Queensland but was unable to be put through to him. That interpretation of what the accused was saying in the ERISP in the portions that I have extracted is wholly consistent with exhibit Y, which is the disk of the call, and MFI 42, which is the transcript of the call that has been provided to the jury for their convenience. 13By way of contrast, in his evidence the accused said that he had rung earlier in the day after having seen a suspicious vehicle. At T1044.44, when being asked by his counsel about that call, the following appears: "Q. And about what time was it that you made this call? A. I didn't make any note of the time or anything, it was late in the afternoon". 14A preceding question and answer made it clear that the accused was saying that at the time of the call to Queensland the deceased was undoubtedly alive. That appears at 1044.37 as follows: "Q. And did she say anything to you at that time as to why it was she wanted you to contact this policeman up in Queensland? A. No she didn't. She just wanted me to ring up for her". 15Later, the accused made it clear in his evidence that the call in question occurred before he spoke to his mother by telephone that evening. At T1047.28 and following this appears: "Q. So you spoke - you phoned your mother, had a conversation then a short time later she phoned you back? A. Yes. Q. You are saying it was after that, that you spoke to the Queensland Police switchboard operator? A. It was before that. Q. It was before that? A. Yes, these phone calls from my mother were after the phone call to the switchboard operator. Q. So how long before you spoke to your mother did you speak to the switchboard operator? A. Well I was in the process of cheering Sandy up when the telephone calls with my mother occurred." 16Again, that last exchange demonstrates that the accused was certainly saying in his evidence that at the time of the call to Queensland the deceased was alive. 17Finally, in my review of the evidence, although the phone records do not identify clearly when the accused had the phone conversations with his mother, that lady gave undisputed evidence that she spoke to the accused after 7pm, and I derive that assertion from T917.46 of the transcript of the evidence in the trial.
Determination 18It is noteworthy that the Crown is not saying that it is a lie of the accused that has the potential of demonstrating consciousness of guilt that the call did not take place at 9.13pm on 18 October 2011. That proposition - namely that the telephone records are wrong, to the extent that they suggest that the call did indeed take place at 9.13pm that evening - is after all part of the defence case that is going to the jury. It would be bootstrapping of the kind discussed by Brennan CJ in Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193, and therefore inappropriate. Reference should also be made to the discussion in the more recent decision of the Court of Criminal Appeal in R v Lane [2011] NSWCCA 157. 19I respectfully agree with the decision of the Crown Prosecutor not to seek to rely on the assertion of the accused that the call did not take place at 9.13pm as a lie potentially evidencing consciousness of guilt. 20However, whether the deceased was alive or dead at the time of the call to Queensland, although related, is to my mind a separate issue. I respectfully reject the submission of defence counsel that the two issues are so inextricably linked that it would be impossible for the jury to separate them out in consideration of this proposed submission of the learned Crown Prosecutor. 21I consider that such a statement - namely that the deceased was dead at the time of the call to Queensland - has the potential to pass the tests delineated in Edwards v The Queen and paraphrased at [56] in R v Lane in the judgment of Simpson J. They are: (1)That the statement was made by the accused. (2)That the statement was untrue. (3)That the statement was deliberately untrue and not the result of mistake, confusion, shock, a crossed wire and so forth. (4)That the statement related to a material issue in this murder trial. It will be recalled that the central issue in the trial is whether the accused either murdered the deceased or innocently found her, she having been murdered by another or others. (5)That the lie was told due to an awareness that the truth would reveal the guilt of the accused. It will be recalled that it is an important part of the case for the accused, and it was his position on 18 and 19 October 2011, that he never saw the deceased alive after he left for the IGA at Malua Bay the second time, some time before 8pm on 18 October 2011. (6)Finally, a statement said to be a lie must clearly be shown to be a lie by admission or evidence. Careful listening to exhibit Y reveals a female voice in the background to whom the accused is referring when seeking to track down Senior Sergeant Wanklin. And in any event, as I have shown, the evidence of the accused, and the defence case, is that the deceased was indeed alive at the time of the call under consideration. 22I do not consider that, properly presented to the jury, the lie proposed to be relied upon by the Crown Prosecutor falls foul of the logical and legal prohibition against bootstrapping. 23Nor do I consider that there is any basis for limiting the use of the evidence in my discretion pursuant to s 136 of the Evidence Act 1995. 24In short, in the circumstances, I consider that the Crown Prosecutor should be permitted to address the jury in the way foreshadowed about the lie that has been precisely identified. Of course, careful directions about that topic will be required of me, including perhaps a written direction. All of that is a separate question, and can be the subject of separate discussion with counsel at the appropriate time.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 June 2013
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