R v Heyes [2006] VSCA 86

R v Heyes [2006] VSCA 86 - VSCA 2006 case summary — Zoe

1 I have had the advantage of reading the reasons prepared by Buchanan, J.A. in this matter, and, subject to the following additional comments, agree that this application for leave to appeal against conviction should succeed, substantially for the reasons given.

2 In this case, the applicant's defences included a denial that he intended to kill the deceased or inflict serious injury, self-defence and provocation. He had agreed with Heathcliff Wilson, the co-accused, to advance a false story to the police and he had told lies both in his initial interview with the police and in the formally recorded interview. These were relied on by the prosecutor in her opening and final addresses as exhibiting consciousness of guilt. Defence counsel argued that the false story and lies were relevant only to the credit of the applicant (who gave evidence) and were incapable of constituting an admission.

3 The conduct in question was, in my view, relevant and admissible at least as showing consciousness on the part of the applicant that he had acted unlawfully. Questions of real difficulty arose however when the prosecutor sought to use the conduct as exhibiting consciousness of guilt, as opposed to the lesser intent necessary to justify a verdict of manslaughter.

4 The trial judge was, I think, correct in rejecting the defence submission that the applicant's lies were relevant only to his credit, and were incapable of constituting an admission. I differ from his Honour, however, with respect, on the question whether his conduct made it more likely that murder had been committed as opposed to manslaughter. The judge regarded himself as bound so to hold by decisions of this Court in R. v. Cako[1], Woolley & Ors[2]; R. v. Rice[3]; and R. v. Burrows[4]. But an examination of each of these cases does not, in my view, lead to that conclusion.

5 In the first of these cases, Cako had been charged with a series of armed robberies. He repeatedly denied to investigating police officers that he had been involved in any of these robberies. On 30 March 1988, Cako was brought before the Melbourne Magistrates' Court for a committal hearing in relation to these matters. During the night of 30 March he escaped from the City Watchhouse. The following day he was intercepted by a detective sergeant named Krstic, and said, in relation to his escape from custody that -

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12 The applicant seeks leave to appeal against his conviction on a charge of murdering Raymonde Thomas ("the deceased") on 25 June 2002.

13 At the time of the deceased's death the applicant was engaged to and lived with the deceased's sister, Rebecca Thomas. The applicant was 28 years' old, the deceased was 26 years' old and Rebecca Thomas was 20 years' old.

14 The deceased and his mother, Sheryl Thomas ("Mrs Thomas") lived together in a house in Ferntree Gully. Mrs Thomas found the deceased difficult to live with. He drank to excess and used drugs.

15 On 7 June 2002 Heathcliff Wilson, the deceased's half-brother, who was 30 years of age, arrived in Melbourne from Queensland and was accommodated in the house in Scoresby where the applicant lived with Rebecca Thomas. Within the hearing of the applicant Mrs Thomas told Wilson of the deceased's violent behaviour towards her. Rebecca Thomas also told the applicant that the deceased had raped her when she was 10 years' old.

16 According to the evidence given by the witnesses called by the Crown, on 24 June 2002 Mrs Thomas visited her daughter and the applicant at their house in Scoresby and shared the evening meal. When she returned to her house in Ferntree

Gully that night, Mrs Thomas found the deceased in a foul mood. He told Mrs Thomas that her dinner was on the floor in the kitchen. Mrs Thomas found a chop on the floor. Mrs Thomas retired to her bedroom to work. The deceased knocked on the door, walked in and asked if Mrs Thomas had finished her work. Mrs Thomas told the deceased that she had not finished, and he left. Mrs Thomas then telephoned her daughter and told her that the deceased was "in one of those moods and I was sick and tired of it.".

17 At the end of the telephone conversation Rebecca Thomas put down the telephone and told the applicant she thought that her mother was in trouble and that the deceased was doing something to her. Rebecca Thomas went into Wilson's bedroom and found him asleep. She tried unsuccessfully to wake him. She joined the applicant in the sitting room where they watched television. Rebecca Thomas continued to fret. She went back to Wilson's bedroom and again tried to wake him. She spoke to the applicant about her concern for her mother. When Wilson woke, Rebecca Thomas told him about the telephone call from her mother and said:

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18 Later that night the applicant and Wilson left to go to Mrs Thomas's house in Ferntree Gully, armed with a knife, a syringe and a mattock, which Wilson dismantled, separating the handle and the head. As they left in the applicant's car, Rebecca Thomas said to the applicant, "just make sure Mum's safe, make sure."

19 At about 2 a.m. the next morning Mrs Thomas was woken by dogs barking. Although her bedroom door was closed, Mrs Thomas heard the voices of Wilson and the deceased. Mrs Thomas telephoned her daughter and asked why Wilson was at the house. Rebecca Thomas told her mother that he was there to save and protect her. Mrs Thomas heard Wilson say loudly, "you raped my fucking sister, you cunt" and heard the deceased say something like "please, stop." Mrs Thomas picked up the telephone and Rebecca told her to go to the applicant, that he was there to get her. Mrs Thomas opened the bedroom door. She saw the applicant coming towards her with a stick in his hand. The applicant told her to get to the car. Mrs Thomas walked to the front door. Wilson was there. Mrs Thomas thought she could see the deceased's legs on the lounge room floor near one of the couches. Wilson told the applicant that the applicant had broken his arm and the applicant replied, saying he was sorry, he didn't mean to do it.

20 The applicant, Mrs Thomas and Wilson drove back to the applicant's house in Scoresby. Rebecca Thomas helped Wilson out of the car and into the house. He complained of pain in his arm. Rebecca Thomas said that one of the men had blood on his hands, face, watch and shoes. Wilson told her that he had stabbed the deceased in the head and the applicant had stabbed the deceased in the stomach. She recalled someone said that the deceased was dead.

21 According to Mrs Thomas there was a discussion as to what they were to say if the police became involved. It was agreed that Mrs Thomas would tell the police that she spent the night in Scoresby watching television and she had slept on the couch. The others were to say that they had remained at the house in Scoresby watching television. Rebecca Thomas said that the mattock handle, which had been taken to Ferntree Gully, was underneath the car upon its return to Scoresby. She picked up the mattock handle and, assisted by Wilson, hid it under the house. It was proposed that Mrs Thomas would take a taxi to the house in Ferntree Gully to collect her shoes for work that day and that she would find the body of the deceased.

22 Mrs Thomas went by taxi to the house in Ferntree Gully. She told the taxi driver that she had gone to her daughter's house, had watched videos and had decided to stay the night. She said she wanted to go home to collect her shoes and then to go to the city. At the house in Ferntree Gully Mrs Thomas left the taxi and entered the house. She then ran back to the taxi looking distraught. She told the taxi driver to ring the police and said that she thought "he was dead". The taxi driver entered the house and found the deceased, who was obviously dead.

23 Later the applicant was interviewed by the police. The version of events he gave to the police was as follows. He said that he was at home with Rebecca Thomas from 6 p.m. on 24 June 2005. He watched television. At 10.30 p.m. they received a telephone call from Mrs Thomas who said that the deceased had gone ballistic and given her a hiding. The applicant drove alone to Mrs Thomas's house and found her waiting outside. He drove her straight back to the house in Scoresby. He said that he was upset that Mrs Thomas had been hurt, for she seemed to be in pain, and to cool off he left the house and went to a hotel on the Maroondah Highway. He met "an Asian mate from Queensland" who was upset about an injury to his back. He took his friend to the Maroondah Hospital at about 3 a.m. Afterwards he took his friend to a motel and returned home at 5.45 a.m. He drove to his employer's place of business and returned to the house at about 10.30 a.m. Police found the blood-stained mattock handle under the house.

24 The applicant was arrested and re-interviewed. He said that after the telephone call from Mrs Thomas, the applicant and Wilson went to her house for the purpose of rescuing her. They knocked on the glass panel next to the front door and spoke to the deceased. The applicant said that he told the deceased that if he continued to behave as he had, they would call the police and have the deceased charged. The door opened and the deceased tried to punch the applicant. The applicant then punched the deceased and they scuffled. They fell to the floor of the sitting room, where the applicant repeatedly struck the deceased in the head. The deceased picked up the mattock handle and tried to swing it at the applicant. The applicant took the mattock handle from the deceased and struck him several times. He said: "I hit him as hard as I could...." The deceased lay unconscious and bleeding. When the applicant left the house the deceased was unconscious but still breathing. The applicant went to Mrs Thomas's bedroom and took her out from the house. The applicant said that he physically tried to restrain the deceased, but he was too strong. The applicant was frightened that if the deceased got up he would "just obliterate me because he is a good 20 or 30 kilos heavier than me and apparently he is very good with his hands."

25 A forensic biologist gave evidence of blood spatters found in the sitting room at the house in Ferntree Gully, which were consistent with the deceased being struck multiple blows with an elongated instrument. A pathologist who conducted an autopsy on the deceased said that his injuries included numerous stab wounds to the scalp, facial wounds, bruising to the neck and fracture of the larynx, numerous facial fractures, defensive wounds to his arms and hands, pattern bruises to his arms, bruising to the legs, a fractured skull and a heavy blunt impact injury to the left lower jaw. He attributed the death to multiple injuries, the fractured skull and associated brain damage, the facial fractures and compression of the neck. Traces of alcohol and methylamphetamine were found in the deceased's blood. As to the injury to the deceased's neck, the applicant said in his evidence that Wilson told him he had stepped on the deceased's neck.

26 The applicant gave evidence at the trial. He said that Rebecca Thomas told him that she had been raped by the deceased when she was between the ages of eight and ten years and that the deceased had assaulted Mrs Thomas. He was told about the deceased's paranoia and violent behaviour, which appeared to be escalating. The applicant said he had been told that the deceased was very strong and a capable fighter. He said he believed that the deceased was insane and that he was an extreme drug user.

27 The applicant said that on the night of 24 June 2002 Rebecca Thomas answered a telephone call from her mother and said to the applicant that she thought that her mother had been bashed. The applicant said that he concluded that if they did not get Mrs Thomas out of the house, she would be killed. Wilson and the applicant decided to go her house in Ferntree Gully to rescue Mrs Thomas. They armed themselves with a mattock handle, which the applicant took into the house to protect himself. When they arrived at the house the deceased spoke to Wilson through a screen door. When Wilson said that he wanted to come in and see his mother, the deceased told him to "fuck off". The deceased threw a punch at Wilson, and Wilson walked into the house.

28 The applicant said he waited outside hoping that Wilson would sort things out. He heard loud voices and a crash. He went into the house to help Wilson. In the sitting room he saw the deceased on top of Wilson on the couch punching him to the head and chest. The applicant ran up and punched the deceased twice in the head to get the deceased off Wilson. The punches had no effect. The applicant panicked and hit the deceased with the mattock handle. His intention was just to get the deceased off Wilson. He hit the deceased as hard as he could. He denied that he intended to kill the deceased or inflict serious injury. He could not recall how many times he struck the deceased on the head with the mattock handle. He stopped hitting the deceased when the deceased collapsed. The deceased had blood on his face but was still breathing. He appeared to be unconscious.

29 When asked why he hit the deceased so hard, the applicant said:

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30 The applicant, Wilson and Mrs Thomas left in the applicant's car, the applicant taking the mattock handle. As they were driving home Wilson said that the deceased had been stabbed.

31 The applicants said that when they returned to the house in Scoresby they were panicking and agreed to advance a false story to the police. The applicant was to say that he picked up Mrs Thomas after they watched a film. He said that he was interviewed by the police after he had slept for about two hours and that he had not told the truth to the police and did not mention Wilson's name because Wilson, when he was rambling, had made threats against the applicant, Rebecca Thomas and Mrs Thomas. The applicant said that in the record of interview he omitted to say that he had taken the mattock handle to the house because he was frightened of how it would look. He said that he had left Wilson out of his account of the struggle for the reasons which he had given earlier.

32 At the conclusion of the trial the jury found the applicant guilty of murder and Wilson guilty of manslaughter. After a plea the applicant was sentenced to be imprisoned for a term of 15 years. A non-parole period of ten years was fixed.

Consciousness of Guilt

33 The first ground of the application which was argued was that the trial judge erred in permitting the Crown to rely upon the applicant's agreement to provide a false story to the police, his initial lies to the police and his lies in the record of interview as evidence of consciousness of guilt. The prosecutor in her opening and final addresses relied upon these matters as exhibiting consciousness of guilt. It was submitted on behalf of the applicant that the lies were relevant only to the credit of the applicant: they were incapable of constituting an admission.

34 Counsel for the applicant submitted to the trial judge that the evidence of lies upon which the prosecutor sought to rely could not support an inference of guilt of murder rather than manslaughter. The trial judge ruled against the submission. His Honour said:

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In my view the possibility is more theoretical than real, particularly where the included offence is manslaughter. It is difficult to imagine conduct that can only be explained by a desire to avoid the consequences of murder but not unlawful killing.

50 The second qualification is that where the issues are not confined to which of two crimes has been committed, but include the issue whether the accused is guilty of any crime, evidence of conduct said to disclose consciousness of guilt may be led as supporting an inference of guilt of unlawful activity. In such a case, though, it is important that the jury be told that they cannot use the evidence to determine the accused's level of culpability, but only to determine whether the accused is culpable at all.

51 In the present case the principal issues were self-defence, provocation and whether the applicant had formed the intention to kill or cause really serious injury to the deceased. If the only issue had been self-defence, evidence of lies told by the applicant was capable of supporting the conclusion that the applicant had no justification for killing the deceased[32]. Once the alternatives of manslaughter by an unlawful and dangerous act and as a result of provocation were introduced, however, evidence of the applicant's lies was capable of misuse by the jury. The jury may have used the evidence to determine that the applicant formed the intention to kill the deceased or cause him really serious injury and was not provoked, even though the evidence had no logical bearing on those issues.

52 The danger could have been averted by appropriate directions by the trial judge. In my view it was appropriate to tell the jury that they could not safely infer from the lies told by the applicant either that he was conscious of having formed the intention to kill the deceased or cause him really serious injury or that the applicant had not killed the deceased as the result of a sudden and temporary loss of self-control brought about by acts or words of the deceased. Thus the evidence of lies could not be used to determine that the applicant was guilty of murder rather than manslaughter by an unlawful or dangerous act or as the result of provocation. The lies could only be used in determining the discrete question whether the applicant was justified in killing the deceased in defence of himself or Wilson. If, for example, by reason of the severity of the attack upon the deceased, the jury rejected manslaughter by a dangerous act or as a consequence of provocation, they may have viewed the lies as relevant to the question whether the Crown had rebutted self-defence. Unfortunately, the evidence of the applicant's after the fact conduct was left to the jury as relevant to the question whether the applicant was guilty of murder. The jury was not told to limit the use they could make of the evidence to determining whether the Crown had excluded self-defence.

Concert

53 The applicant was granted leave to add the following ground of appeal:

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54 From the prosecutor's opening and final addresses, it is clear that the Crown's primary case was that the appellant and Wilson planned to kill the deceased or to cause him really serious injury and combined to carry out that plan. In his record of interview Wilson admitted that he stabbed the deceased and hit him on the head with the mattock handle although he denied stepping on the deceased's throat. The appellant in his evidence admitted striking the deceased with the mattock handle. He did not admit to being party to a planned assault and denied knowledge of Wilson stabbing the deceased.

55 In my view the jury may well have concluded that the appellant was jointly responsible for all the injuries inflicted upon the deceased. The extent of those injuries would have enabled the jury to more readily find that self-defence had been negated and that the appellant had formed a murderous intent. In my opinion the jury should have been instructed as to the facts to be found before the appellant could be treated as acting in concert with Wilson and thus responsible for his acts.

Inconsistent verdicts

56 In the course of the hearing of the application the question of inconsistency between the verdicts in respect of Wilson and the applicant arose.

57 The primary Crown case was that Wilson and the applicant acted in concert, that is, they planned to and did kill the deceased. As the jury found Wilson guilty of manslaughter, they must have rejected the primary Crown case. In the alternative the Crown contended that each of the accused formed the requisite intention to murder either shortly before or at the time the deceased was killed. Counsel for the applicant submitted that there was no material difference in the evidence admissible against each of the accused and accordingly the verdicts were inconsistent.[33]

58 In my opinion the different verdicts may be readily explained. One possible basis for the verdicts was that the jury reached different conclusions about the issue of provocation in respect of Wilson and the applicant. The trial judge instructed the jury that they were to examine the evidence relating to provocation "separately as to each accused". Rebecca Thomas gave evidence of her revelation to Wilson of her rape by the deceased and an ensuing fight between Wilson and the deceased, which led to Wilson's banishment from his family home. Wilson confirmed in his record of interview that he was affected by the deceased's abuse of his sister and mother. The pathologist's evidence was that the wounds made by the knife wielded by Wilson, although not life threatening, were consistent with a frenzied attack. In his evidence the applicant said Wilson entered the house first. The applicant waited until he heard an argument and then a crash. In my view the jury may have concluded that Wilson had established provocation but the applicant had not.

59 Another possible distinction between the applicant and Wilson upon which the jury may have acted was the question of whether Wilson formed the necessary intent for murder. The pathologist was of the opinion that the applicant caused the death of the deceased by striking him with the mattock handle. The knife wounds did not kill the deceased. Wilson had drunk alcohol and used heroin on the night of the commission of the offence, while the applicant was relatively clear headed. The credibility of the applicant could have been viewed by the jury as compromised by his lies to the police, whereas Wilson may have been seen as giving a truthful account to the police.

60 Overall I am of the opinion that a reasonable jury who applied their minds to the evidence could have arrived at the different verdicts.[34]

61 I am of the opinion that this application should succeed on the ground that the trial judge erred in his directions as to the use which the jury could make of the lies told by the appellant. The conviction should be set aside and the appellant retried.

At a glance

Court

Decision date

Before

Source

Judgment (49 paragraphs)

Parties