R v Hodge [2002] NSWCCA 10 | Case summary

15 February 2002 REGINA v HODGE Barrie Allen Judgment 1 HODGSON JA: I agree with Levine J. 2 LEVINE J: The appellant was charged with murder and stood trial before Dunford J and a jury in July 2000. He pleaded not guilty to murder but guilty to manslaughter on the basis of provocation. The plea was not accepted by the Crown and the appellant was found guilty of murder and was sentenced by his Honour to a total term of fifteen years with a non-parole period of seven years. This appeal is against conviction only. 3 The offence was committed on 12 February 1988 when the appellant was 18 years old. His involvement in the offence came to light some eleven years later when fingerprints found on a beer can at the scene of the crime were identified as belonging to him. 4 He had attended a party at Chatswood. During the course of the evening he drank a considerable quantity of beer and also inhaled a line of amphetamine. Some time later in the evening he was attempting to hitch a ride to his home at Beacon Field. He was picked up by the deceased who took him to his (the deceased's) home at Harbord. 5 The deceased, Mr Leo Press, was a 63 year old man who lived with his brother and niece. There was evidence that police investigations revealed that it was his practice to go out late at night to solicit sex from hitchhikers and the like. In circumstances where his brother was at work on nightshift at their bakery, and having earlier in the evening dropped his niece off at the airport to go home to her parents a Quirindi, (i.e., knowing no one was at home), he took the appellant to his home. The appellant gave evidence that the deceased picked him up while he was hitching a ride home and invited him to the deceased's home at Harbord to have "more beers". Not long after drinking the beer, the appellant felt unwell and said that he had to "crash". He woke up to discover the deceased playing with his genitals and kissing his face, including on the lips. It seems he was both scared and offended by the homosexual advance. He was at least scared by the time he found the hammer which he used to hit the deceased a number of times. He did, however deny that he was angry. 6 Evidence led at trial from Dr Bradhurst established that the assault commenced upstairs and ended downstairs near the entrance foyer. The deceased was hit over the head 10 to 12 times with a bricklayer's lump hammer and this was located near his body. There were a number of deep lacerations to his head, skull fracture and brain damage. Any one of the blows could have caused death. 7 The first two grounds of appeal are interconnected and are as follows: Ground 1: The trial judge failed to direct the jury adequately in relation to the use which could be made of a conversation between Detective Inspector Wilkins and the appellant together with an electronically recorded interview of him. Ground 2: The trial miscarried by reason of admission into evidence of the material referred to in Ground 1. 8 The grounds arise, it is said, from the following aspects of the trial. Evidence was admitted, without objection, of a conversation between Detective Wilkins and the appellant, followed by a record of interview in which the appellant gave general denials and then determined to stay silent (see SU38-39, T110-111). After cautioning the appellant, the following conversation took place: "Q. As I told you, I am investigating the murder of Leo Press some 10 years ago. I want to ask you questions in relation to this mater. Do you understand that? A. Yes. Q. The murder of Leo Press took place between 12 and 13 February 1988 at 78 Oliver St, Harbord. Do you understand that? A. Yes. Q. Do you know this person Leo Press? A. No. Q. Have you ever heard of him? A. No. Q. Have you ever been to a house at 78 Oliver St, Harbord? A. No. Q. Do you have any knowledge relating to the murder of Leo Press? A. No, I do not. Q. Just so it is clear in my mind, you have no knowledge of the person Leo Press, you have never been to 78 Oliver St, Harbord and you have no information or knowledge in relation to the murder of Leo Press between 12 and 13 February 1988, is that correct? A. Yes, that is right". 9 The appellant was then informed by Detective Wilkins that he wished to record the conversation. The appellant contacted a solicitor and an ERISP was conducted. In the course of that electronic interview, the appellant agreed that the conversation as above had taken place. Following adoption of the conversation in the ERISP, the Detective asked further questions including the following: "Q38: All right. I now wish to tell you Mr Hodge, that suspect fingerprints were located by fingerprint experts on the 13th February 1988 at the murder scene at 78 Oliver Street, Harbord. Those fingerprints have now been identified as belonging to you. Do you understand this? A. Yes. Q39. Is there anything that you wish to tell me about this matter? A. Well I know nothing concerning this murder in 1988 and on legal advice I don't wish to answer any further questions at this time". 10 The denials were the subject matter of cross-examination of the appellant (T178.25-43): "Q. Sir you twice yesterday gave evidence it had taken you a long time to come to terms with what you did to Mr Leo Press in 1988. Why did you lie to the police about having been involved in that matter? A. Something that arose from a long time ago and I basically denied involvement. That was just my reaction at the time. Q. You told lies because you were aware you had murdered Mr Press, I suggest to you?

Q. Well, didn't you tell lies to try to escape detection for your actions on that night? A. It was just my first reaction" (emphasis added). 11 There was also cross-examination about the appellant having seen the deceased on the ground (T162.25-47): "Q. Do you remember him on the ground? A. No. Q. So at that point you say do you, your recollection doesn't assist you, you have no memory of that point until what point? A. Picking up some keys and making my way out. Q. It wasn't a single key, it was a bunch of keys, wasn't it? A. A small bunch of keys. Q. Where did you pick them up from? A. It was on the carpet. Q. Next to Mr Press? A. I was, I can't remember exactly where on the carpet, I just remember seeing it. Q. When you looked at the key couldn't you see him as well? A. No." 12 After addresses and before Summing Up, his Honour raised with counsel whether or not lies in the case were relied upon as evidence of consciousness of guilt, or whether, on the other hand, they merely went to credit. In the brief exchange which followed, the Crown appeared to concede the answers in the record of interview did not go to consciousness of guilt. The Crown sought directions on consciousness of guilt with respect to a suggested lie as to whether or not he saw the deceased on the floor. The learned trial judge declined to give a consciousness of guilt direction in respect of that evidence and commented that "It might go to credit". In respect of the record of interview and the conversation with Detective Wilkins, he stated that they could not go to a consciousness of guilt because they merely went to "whether he killed him or not", a matter which was not in dispute. 13 In summarising how the Crown put its case, his Honour said: " She [the Crown] suggested that he told lies in court particularly when he said he did not see the deceased lying on the ground and she suggested to you that he only remembers what he has to remember ". (SU50.8) " (emphasis added). 14 I add that in his Summing Up, his Honour in reviewing the submissions made by Senior Counsel for the appellant said to the jury, "he submitted he is not telling lies but telling the truth" (SU52). 15 As is acknowledged for the appellant Senior Counsel who appeared at the trial took no objection to the admissibility of the evidence and sought no relevant directions before or at the conclusion of his Honour's Summing Up. 16 For the appellant it is submitted that the evidence of the general denials was not admissible in the Crown case unless it went to establish a consciousness of guilt. That evidence, it is said, consisted of previous representations of the appellant which could only come into evidence as implied admissions under Pt 3.4 of the Evidence Act 1995. The evidence should not have been admitted at all notwithstanding the failure of counsel to take any objection to it. 17 Given however that the evidence was in fact admitted and was cross-examined upon by the prosecutor and was the subject of specific submission by her in respect, at least, of the in-Court lie, it is argued that the evidence should have been the subject of appropriate directions in accordance with the High Court's decision in Zoneff v The Queen (2000) 200 CLR 234. The jury, it is submitted, were given no direction as to what use to make of the evidence of the interview or the in-Court lie at all. It is argued that his Honour's Summing Up, which summarised the Crown submissions (and which also summarised the defence submissions) would have left the jury with the impression that that lie, at least, could have been used as evidence of consciousness of guilt. 18 The statements made by the appellant in the conversations with the police officer set out above, the Crown submits, although exculpatory are capable of being adverse to his interests in the outcome of his trial and accordingly are capable of being implied admissions within Pt 3.4 of the Evidence Act: Queen v Horton (1998) 48 NSWLR 46; Queen v Reid [1999] NSWCCA 258 at [58] per Smart AJ. In the absence of any objection being taken by Senior Counsel for the appellant at trial, the evidence was admissible and there was no basis for its rejection (see Reid at [5] per Spigelman CJ), the Crown submits. There is, however, a real question whether the statements could properly be so regarded in a trial where the appellant acknowledged guilt of manslaughter. That is, the statements were capable of being adverse to the appellant's interests and thus implied admissions because they were lies which could indicate consciousness of guilt; but in my opinion they could indicate consciousness of guilt of manslaughter (which the appellant admitted at the trial) no less than consciousness of guilt of murder, and thus could not be admissible on that basis in this trial. 19 However, if Senior Counsel for the appellant had objected on the just referred to basis, the statements could still have been put to the appellant in cross-examination on his credit, and thus almost inevitably the jury would have learnt in that way that the appellant did tell these lies. The failure of experienced Senior Counsel to object may well have been a tactical decision as to the least harmful way to have this material introduced into the case. Accordingly, in my opinion, no error by the trial judge is shown, and no reasons to give leave under rule 4 to allow this point to be taken. 20 It is in any event clear that notwithstanding the line of cross-examination by the Crown prosecutor emphasised above, the Crown did not put to the jury, as I understand the Summing Up, any lie other than that identified relating to whether or not the appellant saw the deceased. Nor is it in any way apparent that any lie referred to in the course of addresses or indeed, in the Summing Up, was referred to for any purpose other than as going to the credit of the appellant. This is made the more clear, in my view, by the reference by his Honour the trial judge in Summing Up to the submission made by Senior Counsel for the appellant to which I have referred above. 21 I am not persuaded that the reference by his Honour to a submission made by the Crown (see paragraph 12 above) points to the Crown seeking to advance, contrary to the agreed state of affairs, that the lie was by reason of consciousness of guilt. The addresses by Counsel are not available to this Court; for myself, the reference by his Honour to a statement by the Crown that "he only remembers what he has to remember" is unclear as to its significance. It is not as if his Honour said that the Crown had submitted that the appellant only remembered what he "wanted/wished" to remember. The phrase employed by his Honour (assuming it to be correctly recorded) is a curious one but in the end I am not satisfied that it advances the contention for the appellant. 22 As stated above, no direction was sought in accordance with Zoneff or on any other basis in relation to lies. It was merely the defence position that the lie did not go to a consciousness of guilt. Further, neither the trial judge nor counsel for the appellant, so it seems to me, considered that there was any risk that the jury would use the lie relied upon in an unacceptable way. They had been addressed by counsel in a way that defined the issue on the lies being one of credibility. In these circumstances I am not persuaded that Zoneff required any such direction in the circumstances of the trial nor that his Honour's failure to give one was an error (Queen v Dhanhoa [2001] NSWCCA 293 at [12]). 23 It was submitted for the appellant that the Zoneff direction was required notwithstanding its "newness". The judgment of the High Court was delivered on 25 May 2000 approximately five weeks before the commencement of this trial (4 July 2000). Nothing, of course, turns on that chronology. It is significant however, in my view, that Zoneff was a case extraordinary in its circumstances: an unrepresented accused, no closing address by the Crown and the trial judge unilaterally, as I understand the situation, having directed the jury on lies on the issue of consciousness of guilt. The subject matter of their Honours consideration in Zoneff was not "new" to the High Court. 24 In Osland v The Queen (1998) 197 CLR 316 the Court was concerned with similar considerations. That decision itself was the subject of reference by Howie J in R v Moussa [2001] NSWCCA 427 where his Honour said: "In that case the appellant had carried out post-offence deceptive conduct to give the impression that the deceased, her husband, had disappeared when she knew that he was dead. The Crown did not rely upon that evidence as giving rise to a consciousness of guilt and, therefore, the trial judge did not indicate to the jury that they might use her conduct as evidence of her guilt nor did he gave an Edwards direction. Gaudron and Gummow JJ said about this matter: [43] Although the jury was not instructed that Mrs Osland's lies might be evidence of her consciousness of guilt, there was a real risk that it might reason that, because she lied about her husband's disappearance, she must have known he had been the victim of premeditated murder. Indeed, the prosecution suggested as much, inviting the jury to find that her conduct was not that "of a person who had killed somebody with lawful justification or excuse". [44] Where, as here, there is a risk that a jury might treat lies as evidence of guilt, the preferable course is for the trial judge to ascertain precisely what use the prosecution contends may be made of the evidence in question. And if the evidence is to be left to the jury as evidence of guilt, it should be instructed as required by Edwards v The Queen. If not, it should be instructed that the evidence is relevant only to the credit of the accused. Only by adopting that course can a trial judge guard against "a perceptible risk of injustice". [45] Although it is not necessary to express a view on the matter, it is difficult, if not impossible, to conclude that the trial judge's failure to follow the course indicated above could have resulted in a miscarriage of justice in this case. Counsel for Mrs Osland did not seek any clarification as to the use that might be made of the evidence of Mrs Osland's conduct. And she sought no direction with respect to it. It is difficult to resist the inference that she took the view that there was nothing to be gained by raising the matter". 25 I come to a conclusion similar to that of Howie J in Moussa in this area. It is clear that the learned trial judge in his Summing Up to the jury gave no direction in relation to consciousness of guilt. That was not called for nor sought. It is equally clear that save for the two references above, his Honour gave no direction to the jury in terms of the proscribed reasoning process in relation to lies. His Honour was not asked to do so. He could well have given a direction at the request of the defence and would probably have done so if such a direction in fact had been sought. I am not at all persuaded that the failure the learned trial judge to give a direction along the lines now asserted to have been required by reason of the lies going to credibility (and not sought by Senior Counsel for the appellant) resulted in the possibility of a miscarriage of justice. 26 As the Crown has pointed out in its submissions the issue that concerned the jury, and it was the nub of the trial, was the issue of provocation. Further directions were sought about it and there is no reason, in my view, for coming to a view that the jury rejected the appellant's case on that issue (which they clearly did) on the basis only of the effect of the lie referred to by the trial judge. 27 Leave is required under r 4 to argue these grounds: I am of the view that leave should be refused. I would add that if leave were granted and I was otherwise persuaded as to the merits of the appellant's submissions I would be of the opinion that there had been no miscarriage of justice. The proviso to s 6 would apply. 28 The third ground of appeal (and it is a new ground of appeal) was that his Honour failed to direct the jury adequately in relation to the appellant's selective silence. Again, no application for a direction was made in relation to this before Summing Up or addresses nor after the Summing Up. 29 His Honour directed the jury in relation to the appellant's partial silence in the record of interview as follows: "You cannot hold that against him". Complaint is made that the jury was not directed that it could not use the silence to draw an inference of consciousness of guilt or an inference relevant to the appellant's credibility (see s 89 of the Evidence Act 1995). It is argued that the jury had to be directed not only as to the nature of the right to silence (which his Honour did), but specifically that no inference adverse to the accused may be drawn from its exercise. This requirement, said to be fundamental, was referred to by Badgery-Parker J in The Queen v Matthews (Court of Criminal Appeal, unreported, 28 May 1996 at 3). 30 His Honour was not required to use any particular form of words in directing the jury on the appellant's silence: he was required to do no more than direct the jury as to the nature of the right and that no inference adverse to the appellant could be drawn. 31 What his Honour said was: "He had been told he did not have to answer any questions and you cannot hold that against him. He did not answer any further questions and that was his right and that is what he did" (SU39). 32 At the time the evidence was adduced no objection was taken and no application for a direction was made. Before or after the Summing Up no application for any direction was made. As the Crown has submitted that if such an application was made and his Honour's directions had been seen by himself to be inadequate, any deficiency could have been remedied. The formula of words used by his Honour in his Summing Up, in my view, were apposite and adequate and in no way derogate from the authority of Matthews or Reeves (1992) 29 NSWLR 109. 33 Leave is required for this ground of appeal; it should be refused. I make similar observations as to the views to which I would otherwise come in terms of the proviso to s 6. 34 It is to be borne in mind that the appellant by his plea of guilty to manslaughter admitted that he killed the deceased. In his evidence he admitted that he had inflicted two blows upon the deceased with the hammer after he had shrugged off the deceased and that after the first blow which he inflicted to the back of the deceased's head while they were face to face he had inflicted a second when the deceased was going away from him. The appellant accepted (but did not remember) the evidence of Dr Bradhurst that the deceased had had inflicted upon him 10 to 12 blows. 35 As the Crown has submitted, the deceased's injuries in the light of that evidence, was very serious and violent and the Crown case negativing provocation was a strong one. 36 The jury was well entitled to reject the appellant's version and to prefer the Crown case even without the admission of the matter complained of, evidence strongly pointed to the jury's rejection of provocation. 37 Accordingly, I am of the opinion that the appeal should be dismissed. 38 HOWIE J: I agree.

R v Hodge

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