R v Ali [2001] QCA 331

SUPREME COURT OF QUEENSLAND

CITATION: R v Ali [2001] QCA 331

PARTIES: R / v / ALI, Raymond Akhtar / (appellant)

FILE NO/S: CA No 327 of 2000 / SC No 163 of 2000

DIVISION: Court of Appeal

PROCEEDING: Appeal against conviction

ORIGINATING COURT: Supreme Court at Brisbane

DELIVERED ON: 17 August 2001

DELIVERED AT: Brisbane

HEARING DATE: 11 July 2001

JUDGES: McMurdo P, Davies and Thomas JJA / Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER: Appeal dismissed

CATCHWORDS: CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – MURDER – MISCELLANEOUS OFFENCES – where dismembered parts of newborn female baby found – where appellant in a sexual relationship with the mother - where appellant was convicted of murder and improperly interfering with a corpse / CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR GROUNDS – UNREASONABLE OR UNSUPPORTABLE VERDICT – WHERE EVIDENCE CIRCUMSTANTIAL – - whether the evidence was unsatisfactory or incapable of being acted on by a jury – where the evidence included evidence that the appellant had the necessary knowledge, skill and equipment to carry out the dismemberment – where the appellant was seen near the place where the remains were buried – where such evidence could showed a sufficient circumstantial case against the appellant to justify conviction / CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR GROUNDS – MISDIRECTION AND NON DIRECTION –CONSIDERATION OF SUMMING UP - whether the trial judge erred in categorising lies told by the appellant into four main groups rather than particularising each – where this was appropriate / CRIMINAL LAW – EVIDENCE – EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS – LIES – when possible that lies might be told through consciousness of guilt of a lesser offence – when directions necessary – where trial judge correctly left the interpretation open to the jury - R v May, R v M and R v R distinguished / Edwards v R (1993) 178 CLR 193, applied / R v Box and Martin [2001] QCA 272; CA No 304 of 2000, CA No 307 of 2000, 20 July 2001, considered / R v M [1995] 1 Qd R 213, distinguished / R v May [1962] Qd R 456, distinguished / R v R [2001] QCA 121; CA No 256 of 2000, 22 February 2001, distinguished / R v Whelow [2001] QCA 193; CA No 210 of 2000, 25 May 2001, applied / Zoneff v The Queen (2000) 200 CLR 234, considered

COUNSEL: G P Long for appellant / C W Heaton for respondent

SOLICITORS: Legal Aid Queensland for appellant / Director of Public Prosecutions (Queensland) for respondent

McMURDO P: I agree with the reasons for judgment of Thomas JA.

I wish only to add the following comment as to the learned primary judge's directions to the jury on whether any consciousness of guilt arising from the lies may have been guilt as to the offences with which the appellant had been charged, namely murder, interfering with the corpse or disposing of the body.

Similar issues were considered in R v Box and Martin¹ where this Court recognised that the trial judge should make it sufficiently clear to the jury that the lies were told out of a realisation that the truth would implicate the appellant in the offence of murder, rather than something less, such as manslaughter or accessory after the fact.²

The learned primary judge here told the jury:

"It would be quite wrong for you to approach the case on the basis that if [the appellant] told lies he must be guilty of one or more of the offences with which he has been charged.

… You have to be satisfied that he told the lies because he knew the truth would implicate him in the murder of the baby and/or in an attempt to conceal her birth and/or in improperly interfering with her dead body. …

… You have to bear in mind that there can be other reasons why people tell lies. Bearing all those factors in mind, are you satisfied that he told lies indicative of his own guilt of murdering the baby, indicative of his own guilt of attempting to conceal the baby's birth, indicative of his own guilt of improperly interfering with a dead body?"

As in Box and Martin, the judge's directions did not suggest the lie could be used to demonstrate a consciousness of guilt of manslaughter, the alternative verdict to count 1 (murder). But the learned primary judge pointed out clearly the possibility that the lies may have been told out of a consciousness of guilt of the lesser offences charged in counts 2 and 3 in the indictment. The direction made it sufficiently clear that the jury could use the evidence of lies as a consciousness of guilt of murder only if they were satisfied the lies were not told out of a consciousness of guilt of some lesser offence such as attempting to conceal a birth or improperly interfering with a dead body. It may have been preferable had the judge specifically warned the jury that the lie could not be used as a consciousness of guilt of murder if it was told to conceal involvement in manslaughter but that was implicit in the directions given; elsewhere in the summing-up the judge explained that manslaughter was an alternative verdict on count 1 (murder); Edwards v R³ does not require a trial judge to set out every possible reason for the lie. These directions do not constitute an appealable error.

I agree with Thomas JA that the appeal should be dismissed

DAVIES JA: I agree with the reasons for judgment of Thomas JA and with the order he proposes.

THOMAS JA: On 9 September 1998 dismembered parts of a newborn female baby were found on premises at 21-29 Fryar Road Logan Village. In due course the appellant (Raymond Akhtar Ali) and Amanda Blackwell, both of whom lived on the adjoining property, were charged with the baby’s murder and with other offences relating to dealings with her body. The appellant was convicted of murder and Blackwell of manslaughter. The appellant was further convicted of improperly interfering with a corpse and concealing the birth of the child, and Blackwell of concealing the birth of her child. This is an appeal by the appellant Raymond Akhtar Ali against his convictions.

The only grounds of appeal are that the verdict is unsafe and unsatisfactory; and that there has been a miscarriage of justice through erroneous directions by the trial judge in relation to lies and matters which were said to indicate the appellant’s consciousness of guilt.

The Crown case against both was largely circumstantial although the case against Blackwell included denials and subsequent admissions followed by retractions. At the end of the Crown case Blackwell elected to give evidence. Its effect was that the appellant took the baby away when she was still alive and that she never saw her again. The appellant, when called on, elected not to give evidence.

It may be noted that at trial and upon appeal Crown counsel took the position that Blackwell was an unreliable witness whose evidence should not be acted on unless some support for it could be found in other evidence.

It is necessary then to present a summary of the evidence.

Summary of Evidence

For almost two years preceding the finding of the baby, Blackwell resided with the appellant and his wife Bronwyn at 11-19 Fryar Road Logan Village. There was evidence that at material times the appellant and Blackwell were in a sexual relationship. Other persons including the appellant’s nephew Mobeen Ali and Derrick Holly also lived there from time to time. It was a five acre property on which various animals including goats, poultry and pigeons were kept. The appellant was a butcher and “meat wholesaler” who supplied certain outlets with Halal meat to be eaten by Muslims. The appellant slaughtered goats on the property. He also had expertise in the removal of their organs including the sexual organs of both male and female goats.

On the morning of 9 September 1998 a baby’s severed leg, and part of her intestine and sexual organs were found near the driveway of the property adjoining the appellant’s property. When police were called part of the umbilical cord, uterus (including fallopian tubes, cervix and portion of vagina) were found nearby. The upper section of the baby’s torso was found in a shallow grave.

Further expert evidence showed that the child had been born alive on or about the night of 7/8 September and that she had survived at least for a number of minutes after delivery. The death of the child was due to multiple injuries including injuries to the right side of the head, the chest and liver, which were “unusually severe and involved considerable blunt force”. Such injuries were consistent with kicking, stamping or swinging of the baby’s head against a hard surface after birth. They were not consistent with injuries sustained from a quick delivery, or with damage done by animals. The umbilical cord had been torn. There was evidence that this may have contributed to death through blood loss but other evidence suggested that the baby would have survived notwithstanding such blood loss.

The appellant had been in a sexual relationship with Blackwell for a considerable time. DNA testing suggested the appellant to be the father of the child. Blackwell eventually admitted to being the mother.

The dismemberment had been performed by a sharp instrument. The torso was severed just above the umbilicus and the right leg just above the knee. Dr Naylor observed that “removal of the reproductive organs was most unusual. I formed the view that their removal with such accurate preservation of the anatomy implied purposeful use of a sharp instrument and probably some degree of anatomical knowledge”. Their severance which included severance of the vagina was described as “remarkably neat”.

There was evidence from which it could be inferred that the appellant had the knowledge and technique necessary to remove the female organs. Mr Holly had seen him slaughter female goats and then “cut out the uterus and sex organs … so that the goats could not be recognised as female”. Patrick Tomes (an employee of the appellant’s shop) and Mobeen Ali (who sometimes lived on the appellant’s property) had also seen him remove female organs from goats.

On the afternoon of 8 September 1998 a neighbour (Peter Flanagan) saw the appellant trespassing on his property and walking back towards the appellant’s property from the area where parts of the baby’s body were later found.

The injuries to the child were consistent with the administration of severe force and with death very soon after delivery.

The appellant had a motive to murder the child in that he was a married man who may have wished to conceal the fact of the birth. A search of the appellant’s house showed no signs of preparation for a newborn child to join the household. Although the appellant denied knowledge of Blackwell’s pregnancy it could reasonably be inferred that he must have known of her condition. The evidence suggests that no preparations were made by either the appellant or Blackwell for shelter or sustenance of the child after birth. These and other circumstances were relied on by the Crown as pointing to a plan for the killing and removal of the child. The case against the appellant was that he personally killed the baby, or alternatively aided or counselled or procured Blackwell to do so. Various alternative routes to conviction of either murder or manslaughter were presented to the jury by the learned trial judge, and no objection is taken to the summing‑up in any of these respects.

There was clear evidence of lies told by the appellant to the police on material matters. These included his denial of any knowledge by him that Blackwell was pregnant, denial of any sexual relationship with Blackwell, denial of experience in removing sexual organs of goats, denial of slaughtering goats, and a false explanation for his presence on the Flanagan property on 8 September. On this last‑mentioned point he admitted having been on Flanagan’s property but claimed that some goats had strayed onto the property and he was bringing them back to his property. However there was evidence from Mr Flanagan that were no goats in the area when he saw the appellant there.

There was also evidence (referred to during the trial as “the confrontation tapes”) volunteered to the police by the appellant of tape‑recorded conversations between himself, his wife and Blackwell on 11 November, and again on 14 November with two other persons also present. On these occasions the appellant and his wife confronted Blackwell, and as the recordings show, attempted to persuade her to take full responsibility for the killing and also to admit that she had cut up the baby. Shortly after this Blackwell contacted the police, gave an account of cutting up the child and burying her, and exculpated the appellant from any responsibility in the death.

Various inconsistent accounts were given to the police by Blackwell:

She initially denied that she had recently been pregnant. She later gave various accounts to the police including that she had had a baby which was dead at birth and that she had left the body at the rear of the property.

On 14 November, immediately after the “confrontations” with the appellant and his wife, she gave an account of killing the baby, cutting her up and burying her.

Three days later she retracted the confession of dismembering the baby but not of killing her. On this occasion she also admitted to an extensive sexual relationship with the appellant.

In April 2000 she approached the police and provided a version for the first time alleging that the appellant had taken the baby away, and, by inference, that she was still alive at that time.

Blackwell’s evidence at trial may be summarised as follows:

She had been involved in an extensive sexual relationship with the appellant from September 1996 until shortly before the birth. (That relationship had already been demonstrated by witnesses in the Crown case including Mobeen Ali, Patrick Gomes, Derrick Holly and Alan Barnett. Indeed a formal admission was made by the appellant that after Blackwell’s release on bail on 18 September 1998 until the end of October there was a consensual sexual relationship between them).

In 1997 she had fallen pregnant and the appellant arranged for her to have an abortion. In the event she miscarried.

She had attempted to conceal her second pregnancy. When approaching full term she was taken to see Dr Sabdia on 2 September 1998 and by the appellant for a scan the following day. When he perused the report confirming her pregnancy he became quite angry and “just said that I’d have to fix it”.

She went into premature labour on about 5 September but told no-one and sought no assistance because of her fear of the appellant. She eventually gave birth beside the tank‑stand on the night of 7 September.

The baby’s arms moved after birth and she tried to tear the umbilical cord. By this stage the appellant was present. When she went to pick up the baby from the ground the appellant took the baby and started walking towards the back of the property. She went to follow him but he turned and yelled at her to get back to the house. She then showered and cleaned up some blood which she had lost in the house, and lay down. She later asked the appellant what had happened. He told her the baby was a boy, that he had died and that he had fixed everything.

The next day the appellant told her not to discuss it anymore.

She then falsely confessed to the police on 14 November that she had killed and dismembered the baby because she “had to explain the baby’s injuries” and because she was scared of the appellant.

She explained her coming forward for the first time in April 2000 with her present story on the basis that she had been informed by her legal advisers of the position she was in, that “Raymond was in gaol for this and I figured I had no other choice but to tell them”. The evidence that she gave at trial was substantially to this effect. Counsel for the appellant Mr Long has pointed to a number of inconsistencies however between that evidence and the statement of April 2000 but I do not regard these discrepancies as carrying any great significance in the overall context of her story. Her essential final story was that she had given birth alone; that the baby was alive; that she had caused damage by tearing the umbilical cord but not otherwise; that the appellant had taken the baby away and that she had not seen her again.

Grounds of appeal

Unsafe and Unsatisfactory Verdict

Mr Long submitted that it was not open to the jury to accept and act upon Blackwell’s evidence beyond reasonable doubt, and that the Crown case was not of itself sufficient to enable the jury to prove involvement of the appellant in the death or to find sufficient support for Blackwell’s evidence.

It was further submitted that the evidence did not satisfactorily establish that the appellant was experienced in the removal of the sexual organs of goats. It is true that the demonstrations provided by Mobeen Ali, Patrick Gomes and Derrick Holly of what they had seen the appellant do did not depict the separation of the uterus from surrounding tissues. The demonstrations appear to have been more in the nature of a removal of a mass of internal organs including the uterus and sexual organs. However the evidence of these witnesses, which tends to support Blackwell’s evidence on this point, suggests that the appellant possessed expertise in butchering and experience in the tidy removal of organs including sexual organs. It was certainly not necessary to present to the jury evidence of the exact procedure having been previously performed by the appellant before the jury could use the evidence of his skills and of his own admission of them. Blackwell’s evidence that he once told her that he could do a perfect hysterectomy on a goat because he knew where everything was has sufficient support from other evidence to permit a jury to give some weight to it.

Mr Long’s criticism of evidence on these points is little more than a submission on the weight of evidence that might be made to a jury. Its purpose is to suggest that the coincidence between the surgical precision in removal of the baby’s organs and the proven capacity of the appellant as a butcher are not as striking as the Crown would wish to contend. Mr Long submitted in the alternative that Blackwell had admitted being present on occasions when the appellant had removed such organs from goats, and that she might therefore be capable of having performed the excisions to the body herself. In my view these are no more than points concerning the weight of particular pieces of evidence, and not particularly telling ones at that. They fall well short of undermining one of the important points in the Crown case.

Mr Long also contended that the evidence of Mr Flanagan was an unsafe basis for placing the appellant on the Flanagan property at the stated time and place. He submitted that Mr Flanagan’s observation occurred only “over a matter of seconds” and that the evidence was not sufficiently clear to place him close to the area where the remains were found. He further submitted that the evidence denying the presence of any goats was not satisfactory. Having studied the evidence it seems to me that Mr Flanagan was quite definite that there were no goats present at the time, but he saw the appellant walk between 10 and 15 paces in the back corner of the open property walking in the direction of his own property. Once again these submissions do not come close to revealing such evidence to be unsatisfactory or incapable of being acted on by a reasonable jury.

Mr Long further submitted that the evidence was insufficient to permit a jury reasonably to find that the appellant had told lies on the matters which have earlier been mentioned at paragraph [22]. Without setting out at length the evidence on these questions it is enough to say that there is adequate evidence to permit a jury to conclude that the appellant told lies on each of these issues. The relevant evidence concerning the appellant’s statements and the corresponding evidence which contradicts such statements have helpfully been tabulated by Mr Heaton on behalf of the Crown in the course of his written submissions. The appellant’s submissions in this respect are without substance.

Criticism was also advanced of the evidence of the confrontation tapes. It is true that in these extraordinary conversations there are many statements of “we only want you to tell the truth”, that prior to proceeding to interrogate Blackwell the appellant and his wife received at least some encouragement from a police officer, and that the conversations contain many self-serving statements by the appellant and his wife. Mr Long submitted that they amounted to evidence of a “consciousness of innocence” rather than the reverse. However another view is open. They are capable of being seen as disingenuous, double‑tongued, and as a calculated attempt to persuade Blackwell to accept sole responsibility and thereby remove the suspicion that hung over the appellant and his wife, who, as they repeatedly reminded Blackwell, had done so much for her “all these years”. At the outset in the first such interview the appellant told Blackwell “this is the last chance you have to tell the truth .. before you hurt a lot of people”. Blackwell fairly quickly made statements that the baby “came out and she hit her head a bit when she came out” and later that “I dropped her a couple of times” and that she had thrown her on the ground twice and had taken her to the back of “our property” and left her. She added “But I did not cut her up”. This is followed by repeated badgering that somebody had cut her up. For example:

“Appellant’s wife: They are going to charge Abba (ie the appellant) with murder also.

Blackwell: I haven’t cut her.

Appellant’s wife: Well who has?

Blackwell: I don’t know”.

The appellant proceeded to make statements about his friends and family being harassed and asked her “how long are you going to go on hurting other people like this?” The appellant asserted to her “I couldn’t even tell … where to find a uterus, where, what does it look like? What is it?”

His further statements include

“Tonight I want the truth Amanda because this is going to wreck my family for nothing”.

“Do you need help girl? You’re tearing Mum’s life apart … tearing Sunny’s life apart”.

“They’re pointing the finger at me because I’m black, I’m a Muslim and I’m a butcher. All those things, the uterus being cut out and all that, I don’t believe all that crap, maybe you cut it to bury it in a small. Tell us Amanda please”.

“Why couldn’t you tell Mum that your ultrasound reports showed you were eight months pregnant. Maybe you were neglected by your mother but you know what we’re like … If we knew you were pregnant why would I have to ring Dr Sabdia on the 10th after the police had been and I still couldn’t swallow that you were pregnant?”

“Appellant: Was I here, was I present at your childbirth?

Blackwell: No.

Appellant: Did I know anything about it?

Blackwell: No.”

It might be thought that insincerity is revealed on his part in the many parts of the tapes, including his assertions of ignorance of the fact that Blackwell was even pregnant before the birth. She continued to maintain however that she had not cut the baby up and that she had left her “down there by that tree”. After further reference by the appellant to her “ruining our dreams once and for all” Blackwell said “You can tell Dan [ie a policeman] I did it” and later “to save you two I’ll tell them that I did it”. There was then talk about preparing a defence for Blackwell and a reference to post-natal depression.

It is unnecessary to describe the tapes at greater length. The first occasion ended with Blackwell still claiming that she had not cut up the baby, but that perhaps she might tell the police that she did. In the ensuing interview the appellant indicated that “they are pointing the finger at the three of us … now you have made a mistake. Why don’t you make the admission and tell the truth”. On this occasion in response to the question “Did you cut the baby at night here or did you cut it up in the daytime?” She answered “In the daytime”. She agreed again with the appellant that neither he nor “Mum” nor any of their friends had any knowledge of her pregnancy. She agreed with him that she has not been forced into this confession.

In all the circumstances quite apart from the fact that this evidence helps to put Blackwell’s confession to the police later that day into a proper context, it was open to the Crown to contend that such evidence might be seen by a jury as giving some indication of a person attempting to cover up his own criminal activity. The evidence might incidentally be thought to reveal a degree of manipulative control of Blackwell and that he was not the least bit interested in doing anything to help her.

Blackwell’s evidence that she did not do the killing and that the baby was taken away by the appellant might suggest that the case on the whole of the evidence is safe without any further analysis. However in view of the Crown’s fair concession of Blackwell’s general unreliability, care was necessary both on the part of the jury and now by this court in making use of her evidence. That does not mean that it may not bolster the Crown case in a number of respects. There is an overwhelming case that one or both of the appellant and Blackwell did the killing. The combined strength of the appellant’s possession of the knowledge, skill and equipment necessary to carry out the surgical dismemberment, his being seen near the place of burial at a highly material time combine to support an almost irresistible inference that he was the person who did the cutting and the burying. The evidence shows a determination on his part to act as if there had never been a pregnancy. He was not in the least protective of Blackwell and had no desire to cover up for her; on the contrary he set out to incriminate her. The jury was in the circumstances entitled to conclude that the acts of killing, cutting up and disposal were inextricably intertwined, and that the appellant would not have done these things to the baby’s body unless he was responsible for the death. In addition to the bolstering effect of Blackwell’s evidence against him in a number of matters there is evidence of his dominant position in the menage, the existence of a motive, and his sustained and strenuous efforts to cover up incriminatory details. Without repeating other considerations which have been mentioned in earlier discussion I am prepared to say that there was a sufficient circumstantial case against him to justify conviction on all three charges. It cannot be contended that the evidence was such that it was not reasonably open to the jury to be satisfied that he was guilty of the offences charged.

Directions by trial judge on lies and on consciousness of guilt

The first submissions made by Mr Long on this point allege that the learned trial judge failed to identify particular lies with precision. However in my view her Honour sufficiently did this by referring to the four categories of lies that the appellant was said to have told. Her Honour described these as follows:

“The alleged lies fall into four categories: lies relating to his denial of knowledge of the pregnancy; lies relating to the existence of a sexual relationship between him and Blackwell; lies relating to his knowledge of the uterus and his skill and experience in removing the reproductive organs of female goats; and lies relating to his reason for being on the Flanagan property on the Tuesday”.

Her Honour also referred to the prosecutor’s address in which the statements in the appellant’s interviews which were said to have been deliberate lies had been designated, along with the evidence to the contrary of what had been said. In the course of her directions on alleged lies of the appellant and of Blackwell, her Honour adequately covered all the requirements of a proper direction under Edwards v The Queen.⁴ It seems to me that if the learned judge had particularised each individual lie again, as the prosecutor had done, it would have tended to give them undue prominence with a potential to prejudice the appellant. I agree with the statement in R v Wehlow:⁵

“The direction must be moulded to the requirements of the particular case. What is important is that there be an identification of the lies. There is no necessary vice in a trial judge adopting the identification made by the prosecutor without repeating the lies seriatim. Here 23 lies were precisely identified by the prosecutor, and for the trial judge to have enumerated them seriatim would have been to give them undue prominence, to the potential prejudice of the appellant. There was no error in failing to particularise the lies”.

It may be noted that if it were necessary to refer to all individual lies in a summing‑up by reference to the primary evidence, the summing-up in relation to Blackwell’s lies would need to have been lengthened to a quite extraordinary extent. This case was an instance where, with respect to both accused persons, it was appropriate that the trial judge identify the broad categories of the lies upon which the Crown relied.

It was further submitted that the summing‑up was defective in that her Honour’s directions on the subject of lies were not “counterpointed” with mention of matters favourable to the defence such as the alleged weakness of the butchery demonstrations. I do not think that her Honour’s duty extended so far. The defence case was adequately put.

Mr Long further submitted that the learned trial judge erred in directing the jury that there were three ways in which the evidence could be regarded as revealing a consciousness of guilt: firstly the lies, secondly the content of the confrontation tapes, and thirdly the premature statement by the appellant to police that he was being accused of murdering a baby, before any such allegation had been made by the police. So far as the content of the confrontation tapes is concerned I have earlier stated why I think that such evidence might reasonably be regarded as incriminatory (see paras [31‑33] above). Further, although the appellant’s premature statement about murder of a baby might well have an innocent explanation, it was rightly left to the jury to decide whether it was entitled to any weight in supporting the appellant’s prior knowledge of what had happened. I did not understand Mr Long to raise any objection to her Honour’s directions in relation to the capacity of the appellant’s lies to be regarded as demonstrating a consciousness of guilt.

This however brings me to a point raised by the court in the course of the submissions. It is whether the summing-up sufficiently adverted to the question whether the consciousness of guilt may have been guilt in interfering with the corpse or disposing of the body rather than in having killed the baby. As I read the summing-up, her Honour left the choice to the jury whether they considered that the appellant’s conduct supported a consciousness of guilt on one or other of the respective charges. For example her Honour said:

“The prosecutor submits that he told lies because he knew the truth would implicate him in the commission of one or more of the offences with which he has been charged; murder, attempting to conceal the birth, and improperly interfering with a dead body”.

Her Honour later made the point:

“It would be quite wrong for you to approach the case on the basis that if he told lies he must be guilty of one or more of the offences with which he has been charged”.

And:

“You have to be satisfied that he told the lies because he knew the truth would implicate him in the murder of the baby and/or in an attempt to conceal her birth and/or in improperly interfering with her dead body”.

There was certainly no assumption that an implication of guilt on one was an implication of guilt on all. Her Honour left it to the jury to decide whether they regarded the lies as incriminatory in respect of all or any of the offences. There was no request for any redirection.

The summing-up in my view sufficiently gave all necessary warnings against the misuse of such evidence. The jury was asked to bear in mind that there can be other reasons why people tell lies. Immediately before dealing with this subject in relation to the appellant, her Honour gave direction in relation to the same subject as it affected Blackwell. These included:

“It would be quite wrong for you to approach the case on the basis that because she has told lies she must be guilty of either or both of the offences. The telling of a lie by an accused can be indicative of guilt only if it is motivated by a consciousness of guilt in respect of the particular offence charged”.

Her Honour added:

“You must bear in mind that there can be many other reasons why people tell lies: fear; to protect someone else; panic; to escape an unjust allegation; to avoid some consequence extraneous to the offence”.

And later:

“As I said to you a moment ago when speaking of lies told by Blackwell, if you conclude that he told lies then you must approach with considerable caution the use that you make of that conclusion. In his case, too, it would be quite wrong for you to approach the case on the basis that if he told lies he must be guilty of one or more of the offences with which he has been charged”.

This particular problem commonly arises in cases where a person charged with rape and also with a lesser sexual offence has falsely denied involvement, and where the lie is equally explicable on the basis that the accused knows he is guilty of the lesser offence. Cases of this kind include R v May,⁶ R v M⁷ and R v R.⁸ In those cases it was considered that the judge should have directed the jury about the danger of placing too much weight on the lies as supporting guilt of rape when they were equally explicable by consciousness of guilt of the lesser offence. In R v May at 462 Gibbs J (as he then was) stated:

“The explanation for his false denials may have been his wish to conceal his participation in an indecent assault upon the complainant rather than to disguise the commission of rape. This however seems to me to go to the weight of the evidence, rather than to the question whether it is legally corroborative.”

His Honour however considered it was necessary to warn the jury about pressing the matter too far as corroboration of rape. In R v M it was considered appropriate to tell the jury that they could not safely infer from the flight alone that the appellant was conscious of having raped the complainant.

However there are points of distinction in the present matter. Mr Heaton for the Crown submitted that there was a clear link between the person who murdered the baby and the person who dismembered and disposed of her; that a reasonable jury could think that the two were inextricably intertwined; and that the person who murdered the baby had access to her, reason to kill her, the knowledge, ability and equipment to perform the surgical dismemberment and access to the site where the baby’s body was found. Moreover he had demonstrated the complete opposite of any inclination to help keep her out of trouble. Although the jury were by no means bound to take such a view it was open to them to conclude that it was highly unlikely that a person who was not responsible for the baby’s death would subject the body to such ghastly treatment in proceeding to dispose of it. There was, as already mentioned, a strong case that the appellant was the person who dismembered and disposed of the body. Whilst the jury was by no means bound to accept such submissions from the Crown, they represent a possible view. On such a view the lies, in the light of the whole case, may be regarded as supportive of the Crown case (or as detrimental to innocent hypotheses) in relation to all of the offences. In such circumstances it would not only be unnecessary for the judge to give a direction that they could not infer a consciousness of guilt in relation to all three charges, it would be wrong to do so. In such a case it would be appropriate to leave it to the jury as the learned trial judge did.

This area of the law defies strict logical analysis. The term “consciousness of guilt” or “realisation of guilt and a fear of the truth”⁹ remains an accepted rationale for a direction on this topic, although some of the problems associated with it have been recognised.¹⁰ The problem that has been raised arises when several offences have been committed and the lie is equally explicable by consciousness of guilt of the lesser offence. Usually in such a case it is necessary that this possibility be pointed out to the jury, and in each of R v May, R v M and R v R it was held that the failure to do so amounted to an error. However I do not think that it is always necessary to direct that a lie may be used only to support guilt upon the least of the options available. Obviously each case must depend upon its own facts and circumstances. In the present case I think it was proper to leave the interpretation of these lies open to the jury as capable of supporting guilt on the appellant’s part on all or any of these offences.

In any event, even if such a direction should have been given I do not consider that its omission could have deprived the appellant of a chance of acquittal that was fairly open. It is worthy of note that in each of R v May, R v M and R v R above, where the summing‑up was considered to be defective in not warning the jury against using the evidence in relation to the more serious charge, the court considered it appropriate to apply the proviso. In my view there are even stronger grounds in the present case than in those cases for the application of the proviso if such a direction should have been given.

The appeal should be dismissed.

Footnotes

1. [2001] QCA 272; CA No 304 of 2000, CA No 307 of 2000, 20 July 2001. ↩

2. At [7], [53]; see also R v Richens [1993] 4 All ER 877. ↩

3. (1993) 178 CLR 193, 210-211; and see also R v Box and Martin, ibid, at [8] and [53] ↩

4. (1993) 178 CLR 193. ↩

5. [2001] QCA 193; CA No 210 of 2000, 25 May 2001 at para 32 per Wilson J with whom McMurdo P and Williams JA agreed. ↩

6. [1962] Qd R 456, 462-463. ↩

7. [1995] 1 Qd R 213, 223 (a case of consciousness of guilt through flight). ↩

8. [2001] QCA 121; CA No 256 of 2000, 22 February 2001 at para 6. ↩

9. Edwards v The Queen above at 211. ↩

10. Zoneff v The Queen (2000) 200 CLR 234, 244 at para 15. ↩