R v Chang [2003] VSCA 149

[2003] VSCA 149

Court of Appeal (Vic)|2003-09-22|Before: ORMISTON and CHARLES, JJ.A. and CUMMINS, A.J.A.

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Source facts

Court

Court of Appeal (Vic)

Decision date

2003-09-22

Before

ORMISTON and CHARLES, JJ.A. and CUMMINS, A.J.A.

Source

Original judgment source is linked above.

Judgment (111 paragraphs)

[1]

[ 2003] VSCA 149

[2]

CRIMINAL LAW - Evidence - Murder - Post-offence lies, flight and concealment by applicant - Ruling by trial judge that all such conduct apart from one lie not admissible as consciousness of guilt - Whether jury would nevertheless treat as consciousness of guilt - Whether Edwards direction required - No exception taken - Whether miscarriage of justice - Defence of accident not put to jury - Appeal allowed.

[3]

Yet again the Court has before it an application for leave to appeal where the principal issue is the extent to which the trial judge should have given a warning as to evidence of consciousness of guilt in the manner prescribed by the High Court in . Yet again it is a case where, after discussion with experienced trial counsel, a very experienced trial judge has chosen not to give a direction on the subject except in relation to two specific lies. Counsel on both sides acquiesced in this course and it follows that no objection was taken to the form of the learned judge's charge. As is not uncommon, different counsel appearing before this Court on appeal have contended now that the charge in this respect was totally inadequate. If it were not for the fact that this has occurred, in my experience and that of other members of the Court, on a number of other occasions in relation to cases where evidence conventionally described as that of consciousness of guilt has been led, one would pass it off as a mere unfortunate oversight on the part of judge and counsel at the trial or the undue enthusiasm of counsel on appeal.

[8]

In the present case, as the judgment of Charles, J.A. so clearly demonstrates, the prosecution, after discussion and direction by the judge, refrained from using the words "consciousness of guilt", except in relation to two specified lies, but counsel still persisted in using the other lies and more particularly the applicant's conduct in seeking to dispose of the victim's body and in deflecting attention from him as proof of his guilty mind and that he had intended the murder of his victim. From the outset of his address prosecution counsel made clear that he proposed to demonstrate that the "timetable ... of behaviour ... over that week, from the Monday through to the Saturday, demonstrates an unanswerable case of guilt of murder ...". Then, at the very end of his address, he asked the jury to consider the whole of the circumstances which surrounded the events during that week, including the secretion of the body, the purchase of disguise, camping material and fuel and the attempts to get rid of the body, together with the lies, "all of it utterly inconsistent with what is suggested as an innocent explanation of events that took place". But there was no warning, and in fact no warning was sought, that the jury might misuse this material, might too easily treat establishment of the "negative" as proof of a positive admission of guilt, or of the possibility that the various steps might have been taken for a purpose other than from a realisation of guilt, such that the requirements of Edwards were not fulfilled. Doubtless a proper direction as to circumstantial evidence was given but such warnings and requirements as are contained in a conventional circumstantial evidence case are not sufficient, as things stand, to satisfy the rigorous requirement of Edwards and of the subsequent relevant High Court decisions, as applied in this Court. As in Nguyen this was a case where the applicant's subsequent conduct could only be used to establish guilty intent and it was obvious that the prosecution was saying that every single act supported that inference. An appropriate warning was therefore required.

[21]

The applicant was at this time employed at a paint factory in Footscray and had a relationship with a lady called Veronica Pum. They shared a house at 13 Bridge Road, Melton, with children. Miss Pum's evidence was that the week beginning 8 November started normally. The accused was, however, due to go to work on the Monday but did not do so, saying that he had had an injury on his way to work and had hurt his back. During the week he arranged to take sick leave and therefore did not go to work on the Tuesday, Wednesday or Thursday of that week. On Wednesday 10 November the applicant came in to his workplace and met a friend, James Adams. Adams was the owner of the house at which the applicant had stored the deceased's car, although Mr Adams was not aware of this. Adams had been with the applicant the previous night, and during a conversation the applicant had talked about the possibility of "taking off" and said that "some things had been done that could not be undone". Then on Thursday 11 November, Mr Adams went to work and that night, while he was still at work, received a telephone call from the applicant who said "Look, well, meet me in the regular spot where we usually meet", and they agreed to meet at a place where they often met to have a chat and a drink. Mr Adams went there at 8.30 that night and waited until the applicant arrived. The applicant arrived in a car driven by one Adrian Cyril, also one of his friends. That night Mr Cyril drove the applicant to Brunswick for the purpose of organising the sale of marijuana which the applicant said was sold for something like $700. The Crown case was that the applicant was setting about "cashing himself up" for what he proposed to do at the end of the week. Later that night Mr Adams was asked by the applicant to go and buy him a few things, a torch, batteries, underwear, socks, hair dye and a parsley shredder. Mr Adams said "Well, what are you up to?" and the applicant replied "Some things you can't change. You just can't go back on."

[28]

When the applicant was interviewed on 16 November, there was a more lengthy conversation on video tape. This time the applicant said that the deceased wanted more money off him, so she could redeem jewellery she had sold at pawn shops in order to buy heroin. She started going on about money. All of a sudden, for no apparent reason, she started hitting him. He said he pushed her away and she continued to hit him, he hit her with an open hand, but could not recall how many times he struck her. After she hit the couch arm piece, she fell to the ground. He felt for her pulse but there was nothing. He said he checked the pulse in the neck, arms and legs. The bleeding from the eyes, or in the area of the eyes, occurred so he took off the black jumper, and covered her head with it because he could not stand to see her face in that condition. Later in the interview he said that there was a fair bit of force behind the blows that he had in fact delivered, and he tied the jumpers around the head because he did not want blood going everywhere in the house. When asked about the black jumper and the hole in it, the applicant said "I went up later on, and I hit her in the head. Yeah, because I didn't know, I just hit her, you know, just to see if she was moving at first, you know." When asked what he hit her with, he said, "It was a meat tenderiser" and he was just knocking her about to see if she was feeling anything. He said "That's when I, I think I hit her across her head, I think, a couple of times to see if she was moving, but I didn't think that I hit her that hard." The evidence, I should interpose, included that the applicant had been trained and instructed in first aid. The applicant said that he had hit the deceased with a meat tenderiser to see if he could provoke any movement from the body. Apart from trying to see if she was alive by hitting her with a meat tenderiser, just tapping her, as he described it, to see if she was alive, he said "At first I was kicking her, you know, if she was still moving too, but nothing." He said he could not touch her with his hands, and that's why he used the meat tenderiser. Again he said that during this, he "just panicked", he had "really panicked".

[31]

At the outset of the trial a discussion took place between the prosecutor and the trial judge in which the prosecutor indicated that he sought to use as evidence of consciousness of guilt on the part of the applicant the conduct immediately after the death of the deceased, secondly the applicant's actions leading up to the preparation for actual attempt at flight, and thirdly what was said to be a series of very significant lies throughout the record of interview, as to which the prosecutor said he would limit them to areas of principal significance, namely, the fracture of the skull which was clearly demonstrated to have been caused by a substantial blow. This, it was submitted, demonstrated that there was an animus towards the deceased which caused that blow to be delivered. The judge, however, raised a concern as to how one differentiated between consciousness of guilt of unlawful killing and consciousness of guilt of murder. His Honour said that the alleged lie relating to the fracture of the skull related to the existence of a possible animus bearing upon the intention with which the acts were concerned, and it seems then to have been accepted without further argument that save for this lie the applicant's post-offence conduct and lies would not be put to the jury as consciousness of guilt. Rather surprisingly the prosecutor made no attempt to rely upon the decision of Woolley, Whitney and Rayment[9] in which the Victorian Court of Criminal Appeal rejected a submission that a trial judge should have directed a jury that the lies in that case might have been evidence of consciousness of guilt only of manslaughter, or to being an accessory after the fact, both being alternatives to murder which were there left to the jury. The Court however took the view that it would be "fanciful to require as a precondition to possible use of the conduct that the accused had turned his mind to particular alternatives such as murder or various categories of manslaughter." The decision in Woolley was quoted at length with approval in R. v. Rice[10]

[41]

"In broad terms, the prosecution has contended that an overwhelming case of the guilt of the accused man of the crime of murder has been established on the basis of a combination of pieces of evidence and all of the circumstances. You will recall the arguments which have been advanced by Mr Elston before you on this basis. It is, he submitted, clear that the deceased met her death some time on the Monday, almost certainly before the accused man contacted her brother and then her father. The accused man, from that time onward, engaged in a calculated attempt, it is said, to hide and divert attention from her death and his involvement in it. You do not know, it is argued, precisely the circumstances under which Miss Psaila was killed. What you do know, it is said, is that on that day, and as a consequence of the actions of the accused man, she did die, and she sustained a fracture of the skull about which the accused man told lies. Whether that fracture was sustained before or after her death, what it indicates, it is said, is a sensitivity on his part with respect to the true situation, at minimum. He was not acting thereafter, it is asserted, in a form of panic of the kind alleged by him in his interview with the police but, rather, undertook a number of steps over a matter of some days to work out how to deal with the situation with which he was confronted. It is said that he took advantage of his contacts with other people who he used in order to secure the necessary items, including moneys that he wanted to make good his escape. You are entitled when you consider the totality of the circumstances to have regard to his endeavours to conceal the body of the deceased, and you are entitled to have regard to his interview as a pack of lies, it is said. Putting all those matters together, it is clear beyond reasonable doubt, submitted the prosecutor, not only that the accused man killed Dianne Psaila, but that he committed the crime of murder. It is submitted that you can be satisfied beyond reasonable doubt the killing was not only unlawful but was accompanied by the necessary intention to create the crime of murder."

[49]

Nguyen was charged with the murder of his stepson, it being alleged that he had killed him with a shot fired deliberately from a double-barrelled shotgun at close range in the kitchen of Nguyen's home. The principal issue in the trial was whether the prosecution had proved that Nguyen had deliberately discharged the firearm with intent to kill or do really serious injury to the deceased. Nguyen in his evidence claimed that the killing was unintentional and that the gun had discharged "accidentally" while he was cleaning it. There was no eyewitness to the shooting and the principal evidence of intent against Nguyen was his post-offence behaviour. Nguyen had almost immediately left the house after the shooting and disposed of the firearm, first by hiding it in bushes nearby and later by disposing of it in the waters off Altona Beach. The firearm was never found. Thereafter Nguyen pretended to the police that some unknown intruder had been responsible for the shooting. He said that he had been sitting in the lounge room with his wife. He also encouraged his wife and stepdaughter to make similar allegations to the police. The police had not been able to locate any gun-shot residue on Nguyen's person or clothing, a fact which was surprising if Nguyen had had his hands on the firing mechanism of the gun when it discharged. The fact that Nguyen had lied to the police became apparent when, two days after the shooting, his wife went to the police and told them that he had been responsible for the discharge of the firearm. The prosecution relied heavily on Nguyen's post-offence conduct in submitting to the jury that he had had murderous intent. Winneke, P.[16], after citing passages from the prosecutor's address to the jury, said that the prosecutor had invited the jury to conclude that the post-shooting conduct of the applicant was itself evidence of his guilt of murder, that it was evidence inconsistent with his claim of accident. The trial judge directed the jury that they could only use the applicant's lies in assessing the credibility of his evidence. Winneke, P. said of this[17] -

[50]

"Notwithstanding the trial judge's general directions to the jury that they could only use such lies as they found the applicant had told to police in assessing the credibility of his evidence, and that they could not jump from lies so found to guilt, it seems to me that there was a real risk in this case that the jury would use the applicant's immediate post-offence conduct as probative of his guilt. It was the conduct of the applicant, immediately after the shooting, in concealing the weapon and thereafter pretending to police that an intruder had shot the deceased, which, because it was capable of being used to prove intent, put the applicant at risk in the absence of proper directions. It was this combination of the concealment and pretence which gave the evidence its probative value. It did not lose its probative value, as the judge appears to have thought, simply because the applicant thereafter conceded that he was holding the gun when it discharged. If anything, that only accentuated the materiality of the evidence because the issues were narrowed to `voluntariness' and `intent'. These issues could only be determined by the drawing of inferences and the jury were invited to draw those inferences in part by relying upon the post-offence behaviour of the applicant. Post-offence conduct, including lies, only becomes probative because it stems from a consciousness of guilt. The strength of its probative value, however, will depend upon its nature and the use which is sought to be made of it. It will rarely be the case that its strength is such that it can prove guilt directly. Generally, as here, it will form part of the body of circumstantial evidence from which the jury is asked to infer the guilt of the accused. Where that is the case, it has been said that the employment of the term `consciousness of guilt' is misleading because it suggests a conclusion about the conduct which undermines the presumption of innocence. However, where the conduct is being used, and is capable of being used, to prove guilt, the trial judge must, in my view, be astute to the clear possibility that the jury will so use it, and to give such directions as are needed to ensure that it is not misused."