The Crown's application
19During the course of the submissions on the Crown applications, I requested the Crown Prosecutor identify the precise statements said to have been made by the accused which were said to warrant an Edwards direction (see Edwards at 210). In the end result, the Crown Prosecutor identified two such statements, and four items of independent evidence as demonstrating the untruthfulness of those statements.
Statement to police officer McDiarmid
20The first statement was in a conversation the accused had with police officers McDiarmid and Perrett when they attended at the accused's apartment some time around 9:15 on the evening of 15 May 2012 (Bryce (No 1) at [5]). Officer McDiarmid recounted that shortly after an ambulance was called he had the following conversation with the accused:
"I said 'How long has she been like that? I don't think she's asleep.'
John Bryce said, 'Yeah she is. I went to bed for a sleep which is why I was naked when you got here. I woke up with her lying next to me with her pants off.'
Constable Perrett said, 'How did she get in?'
John Bryce said, 'I didn't lock the door, she just let herself in. I didn't even wake up until you guys knocked at the door.'" (emphasis added)
21In his evidence officer McDiarmid was then asked and answered as follows:
"Q. I will take you to paragraph 23 [of his statement]. Can you give me the conversation there?
A. "I said, 'How long ago did she come in?'
John Bryce said, 'Don't know, three hours ago or something'."
22The Crown contends that this amounts to a statement by the accused that, from a time prior to the deceased returning to his apartment until the police knocked on his door, the accused had "been in bed". The Crown Prosecutor expressed it in that way because he acknowledged that there is a potential ambiguity as to whether the accused in effect stated that he slept through the arrival of the deceased in the apartment, or that he was briefly woken up when she arrived. However he contended that the accused, at least, clearly stated that he remained in his bed.
23I accept that the statement made as recounted by officer McDiarmid conveys that. No submission was made to the contrary.
24The first and fourth issues in relation to whether an alleged lie is said to evidence a consciousness of guilt is whether this statement is capable of amounting to lie in the sense of being false and deliberately so. I have already indicated what the statement conveys. The evidence sought to be relied upon by the Crown that it was untruthful was fourfold.
25First, the Crown pointed to the evidence of Mr Parlak and Mr Stokes which, if accepted, places the accused and the deceased together outside his apartment at a time between her return to the unit and the arrival of the police. Second, the Crown seeks to rely on the photographs taken from the CCTV footage that I have referred to above which, again, place the accused outside his apartment at a time after the return of the deceased to his apartment. Third, the Crown relies on the admission by the accused towards the end of the ERISP that he and the deceased were outside the unit after they had sex (and before the police arrived).
26Fourth, the Crown also relied on Ms Dennison's evidence of hearing an argument in the unit above hers. The Crown only faintly pressed this aspect as demonstrating the alleged falsity of the statement it relied upon. As noted the Crown identified the false statement of the accused as being that he did not rise from his bed. It implicitly accepted that there was perhaps some scope within his statements for the possibility that he was woken, and there was some discussion (as well as them having sex) which could account for aspects of the noise heard by Ms Dennison.
27To the extent that it is necessary to do so, I find that the first three matters constitute either independent evidence or an admission which was capable of demonstrating that the statement made by the accused to officer McDiarmid was untrue.
28In resisting the Crown's application, Mr Williams pointed to various circumstances surrounding the making of the statements. He submitted that the accused may have been confused, particularly bearing in mind that this statement was apparently made immediately after he had woken up. He ultimately submitted that the statement was not capable of amounting to a lie in the sense of being a deliberately false statement.
29While the points made by Mr Williams have some force I do not consider that they detract from the conclusion that the statement made by the accused is capable of having the requisite character. At the time the accused spoke to officer McDiarmid the situation must have appeared to him to be relatively serious. He was being questioned about an allegation of assault on the deceased earlier that day and an ambulance had been called for her because she could not be roused. The question asked of the accused was a relatively straightforward one. As I have stated, it is apparent that the accused had difficulty in responding to questions directly and giving a cogent narrative, but he was at least capable of addressing a relatively straightforward request about what had happened in the immediate period prior to the police attending, and the deceased apparently deteriorating. In my view, in light of the nature and circumstances of the statement and the items of independent evidence ultimately relied upon by the Crown, I consider that this statement is capable of being found to be deliberately false.
30The second issue is whether the statement relates to a material issue in the trial. In my view, it is clear that it does or at least is capable of so relating. The topic of officer McDiarmid's questions was how long had the deceased been in an apparently comatose state that she presented at 9:15pm. In light of the refinement to the Crown case that I have noted above (at [5]), the material issues in the trial include whether the Crown can demonstrate beyond a reasonable doubt that the deceased suffered the injury resulting in the subdural haematoma some time after her return to the apartment, whether she suffered that injury through a voluntary act of the accused undertaken in that period and, if so, whether in committing that act the accused had the requisite intention. In my view, the statement by the accused as to what happened in the period in question is highly relevant to at least the last two of those issues.
31The third requirement is that the evidence concerning the alleged lie is such that a jury would be able to conclude that it was said "because the accused knew that the truth of the matter about which he lied would implicate him in the [commission of] the offence" (Edwards at 211; Zoneff at [16]).
32In Zoneff the Court indicated that in addition to identifying the particular alleged lies in question, the Crown should indicate the basis on which they are said to be capable of implicating the accused in the commission of the offence charged (at 17). In this case, a lie of the kind identified above is capable of having that effect, in that it relates directly to the interaction between the accused and the deceased in the immediate hours before she died in circumstances where the Crown's case is that that was the period in which the fatal injury was inflicted.
33On this issue, Mr Williams repeated the submissions I have made above. However, ultimately none of those matters detract from the capacity of the evidence to meet the third requirement.
34For these reasons I considered that the requirements for the use of the statement made to officer McDiarmid as a lie evidencing a consciousness of guilty were established.
35For the sake of completeness, I note that in light of this ruling Mr Williams has been offered the opportunity to further cross examine officer McDiarmid.