R v Bradley [2001] VSCA 212

R v Bradley [2001] VSCA 212 - VSCA 2001 case summary — Zoe

[22]

It is convenient here to set out the basic facts relied upon by the prosecution against the applicant for, although it was properly characterised as a circumstantial case, the particular circumstances implicating the applicant were relatively few in number. Of course there was evidence of a general kind relating to the relationships between both the accused and the deceased, as well as their friends and relatives, and of their different activities on the evening and night in question. The relationship evidence was of somewhat more significance in the case against Mrs Cox, but indirectly it was important to the Crown case against the applicant, for otherwise there would be neither motive nor reason for the applicant to seek to kill the deceased. Essentially the principal elements in the circumstantial case against the applicant were summed up by the trial judge in the course of describing what was necessary to sustain such a case and I shall refer to those matters in the order in which his Honour dealt with them, adding some few details also relied upon by counsel. The case relied on, in the first place, the fact that the weapon used in the killing belonged to the applicant, apparently placed in his bedroom drawer only a few days before the killing took place. Secondly, the case relied upon the applicant's request to take the gun to Bendigo and have it effectively hidden, together with the spent cartridges (none of which was found in the deceased's home), all of which not surprisingly the Crown described as "extraordinary", especially as he said that he feared only that he might be found guilty of being in possession of an unregistered firearm. Thirdly, it was pointed out that the applicant had, on his own admission, visited the deceased's home on the night he met his death, being only the second occasion on which he had visited that house and choosing to visit on a night when he knew that his then partner Ms McMahon was going out with the deceased's wife for the evening. As I would understand it, the prosecution also relied on the fact that the deceased's house was easily accessible from the applicant's, being about only five minutes' walk away. Fourthly, the Crown pointed to the applicant's denial that he was even aware of the cause of death of the deceased. The final two matters were that the applicant had paid the three hundred dollar car repair debt in three one hundred dollar notes just after the shooting and that Ty Bates had said that the applicant was not at home when he arrived there at 1.30 in the morning, the applicant coming in the door a few minutes later. It can be seen that, in those terms, it was not an elaborate case, although the background had to be spelt out in a good deal of detail before any inferences might fairly be drawn. Moreover, counsel then appearing for the applicant denied strenuously in his address that the relevant inferences could safely be drawn.

[32]

In my opinion these directions more than adequately dealt with the effects of the lie, as asserted as part of the case against the applicant, certainly in the context of the manner in which it was raised and dealt with at the trial. Counsel, however, relied on three propositions taken from R. v. Renzella[1], in particular propositions 8, 11 and 12.[2] So it was asserted that, unless the jury are told explicitly that the lies can only be used on the question of credit, there should be a proper consciousness of guilt direction in relation to lies if they form part of a circumstantial case against the accused. There is not much doubt in the present case that little more was being read into this particular lie than that the applicant should not be believed as to his version of events. Nevertheless that was not directly stated either by prosecuting counsel nor by the learned judge in the course of his summing up. Greater significance may have been placed on the co-accused's lies so far as the proof against her was concerned, but that is of no presently relevant significance. For myself, I see no reason why a full direction of the kind required by Edwards v. The Queen[3] and Zoneff v. The Queen[4] was required to be given. Indeed, it may have done more harm than good to the applicant's case for it would have invested this particular casual lie with a significance that it did not otherwise deserve. The need for such directions ought to be dependent on whether the prosecution case seeks to characterise the lie as amounting to an implied admission of guilt or otherwise of implication in a significant way in the crime. Here remarkably little was said about the lie in the course of the addresses. The prosecutor briefly mentioned it but only for the purpose of contrasting it with what he said was the true version of another witness. Counsel for the applicant likewise did not linger over it. The highest that one could perceive the prosecution submission is that, perhaps by implication, the applicant's stated lack of knowledge was to be connected with his disposal of the gun itself.

[81]

"Now, the accused has given an account to you, the other day, of what he said happened on the Saturday. That around about 5.30 he heard on the news that Mr Cox had been killed, in fact had been shot, and then after having a short conversation with Lana he went into the room, this is a man that he says didn't do it, went into his bedroom, opened the drawer, and there was the pistol that didn't work and the rifle wrapped in a towel. He said what he did then was that he became suspicious - that was the reason he gave as to why - he became suspicious of Eileen even though Eileen had been with his wife all night at bingo until 10 o'clock, and in his presence until they went to bed. It was because he was suspicious of Eileen Cox that he then gave the gun to Lana to take to Bendigo, and he said this, he said because he thought the police would come round to his house. Well, why would he think that? He says, `Well, because I was suspicious of Eileen Cox and she was round there the previous night'. We know Eileen couldn't have done it. Why, members of the jury, would he take the firearm? He says he got it out of the drawer and had a sniff and it seemed as though it had been fired. So he thinks to himself, 'This could be the murder weapon'. What does he do? He says to you that, `I was frightened the police would be coming round and finding an unregistered firearm in my possession, that's why I dispatched them to Bendigo'. He didn't think to himself, `Well, okay, it is an unregistered firearm, what do I do first of all? Why don't I hide the gun in the back yard, dig a hole'. He wanted to get the gun as far away from his house as possible, members of the jury, because he knew it was the murder weapon, because he committed the murder. I mean what would he get for possession of an unregistered firearm. A fine of maybe $500, I don't know what the going rate is not much. But he thought it was the murder weapon, or it could have been, so he moved it as far away from his home as he possibly could with his wife to the relative's house in Bendigo. It is just an absurd account really when you think about it."

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Court

Decision date

Before

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Judgment (140 paragraphs)

Parties