R v Howard [2005] VSCA 235

"Now, pay attention to the next statement: 'I know I didn't go out at all that night. I don't go out at night'. Lie! Janet Pendergast sees him across the road at 8:30 that night. Doing what? That lie, members of the jury, is significant because it is a lie told out of a consciousness of guilt. That lie, members of the jury, in my submission to you, condemns him. He lies because he knows to tell the truth would pose pretty serious questions: where did you go? Across to Janet Pendergast's place? What did you do that for? What is the answer to that question? Why were you hiding there at the back of the garage near the bins? What is the answer to that question? So he lies."

11 Following the prosecutor's address, the applicant's counsel applied to the trial judge for a direction to the jury that the statement relied on by the prosecution in its final address did not amount to a lie and could not be used as a basis for raising an argument as to consciousness of guilt. Alternatively, counsel submitted, if her Honour was of the view that the impugned statement was capable of being treated as a lie and as evidence of consciousness of guilt, the jury should be discharged on the basis that the Crown relied on it as showing consciousness of guilt for the first time only in its final address and thus, the applicant did not have the opportunity of rebutting the allegation. Her Honour, however, rejected counsel's application that she direct the jury that the statement was not capable of being regarded as a lie and as amounting to an implied admission. She also rejected the application that the jury be discharged. Her Honour went on to charge the jury accordingly.

Grounds of appeal

12 As has been noted, the applicant abandoned all grounds in his notice other than grounds 2 to 4, 9(a) and (b) and 10. For reasons which will become apparent, it is necessary only to set out ground 2.

"(2) A miscarriage of justice resulted from the prosecutor's being allowed to address to the jury an argument relating to an alleged lie or lies amounting to consciousness of guilt in circumstances where

(a) on the evidence, it was not open to be satisfied that the applicant had lied; and/or

(b) the prosecutor's course represented a substantial change in the prosecution case at a late stage of the trial."

This was the ground that was argued first. Under cover of that ground, Mr Holdenson essentially submitted that the trial miscarried because the prosecutor was permitted by the trial judge to rely for the first time in his final address on the claim that the applicant lied to the police and that the lie evidenced his consciousness of guilt. Counsel argued that it was not open to the jury to conclude that the statement contained the lie for which the Crown contended. In any event, said Mr Holdenson, because the claim of consciousness of guilt was only raised very late in the trial, the applicant had no opportunity of responding to it, with the result that the trial was rendered unfair to him.

13 Before dealing with counsel's arguments in support of these contentions, it is necessary to look at the contents of the statement and the context in which it was made. I have already mentioned that the police had questioned the applicant about his movements at the relevant time. In addition, they also questioned him as to whether he had telephoned Mr Stockley in the early hours of 12 June. The reason this matter was brought up by the police was that Mr Stockley had told them that he had received an abusive telephone call at approximately 3 a.m. on the night of the deceased's murder and believed that the speaker was the applicant. When this was put to the applicant by the police during their discussions, he denied the claim and this denial was reflected in the written statement. Although initially the police did not accept the applicant's denial, they later established, through telephone records and the like, that it was not the applicant who had telephoned Mr Stockley in the early hours of 12 June. Thus, so far as is relevant, the applicant's statement to the police dealt with two matters. One concerned his movements on the night in question and the other related to whether he had telephoned Mr Stockley. The statement was in the following terms:

"My full name is Peter John Howard. I am 70 years of age and reside at an address known to police.

I have been asked what time I went to bed on 11th June 2002. To the best of my knowledge, I went to bed between 9:30 p.m. to 11:00 p.m. I don't really remember.

I know I didn't go out at all that night. I don't go out at night.

I don't really have a routine, but I don't get up before daybreak. I sometimes get up at 7:00 a.m. during the week. I get up at 6:30 on Saturdays and go to buy my newspaper and my groceries at Safeway.

On Tuesday night to Wednesday morning on 11th to 12th June 2002 I did not receive any phone calls that I remember. I certainly didn't make any calls. My phone numbers are 97621941 and 97610067. I don't have a mobile phone." (Emphasis added.)

14 Mr Holdenson argued that it was unfair to the applicant to permit the Crown to rely on consciousness of guilt so late in the trial because, he said, the prosecution had throughout the first and second trials effectively disclaimed such an allegation and trial counsel conducted the defence case accordingly. More particularly, it was said, counsel did not cross-examine police witnesses with the view to eliciting evidence that would, or might, have borne on the proper interpretation of the impugned part of the statement and, Mr Holdenson contended, such a course would have been adopted had the Crown said at the outset that it would rely on consciousness of guilt as part of its case against the applicant. In support of his claim that the applicant's trial counsel would have been well justified in proceeding on the basis that the Crown would not rely on the applicant's statement as constituting a relevant lie, or as evidencing a consciousness of guilt, counsel pointed to the following. First, it was said, during the first trial the Crown did not seek to rely on the statement. On the contrary, it maintained that the statement was inadmissible because it was self-serving and, consequently, it opposed its admission into evidence. The defence, on the other hand, sought to have it admitted into evidence because, it claimed, it showed that the applicant was telling the truth to the police when he denied that he had telephoned Mr Stockley at 3 a.m. on the night in question and that, therefore, that he was a truthful person. In the end, the prosecutor relented, and told her Honour that it would be appropriate to "[p]lace [the statement] before the jury". It was in these circumstances that it came to be read into evidence at the first trial. The police officer who compiled the statement was not cross-examined about the circumstances of its making.

15 It was next said that, in its opening at the second trial, the Crown told the jury that its case was a circumstantial one, based on several facts that the prosecutor outlined and which he said linked the applicant to the deceased's murder. Mr Holdenson pointed out that these "facts" did not include the alleged lie to the police and no mention was made of reliance by the Crown on consciousness of guilt. Moreover, counsel said, the prosecutor also told the jury that the applicant never admitted killing the deceased. Mr Holdenson stressed that it was against the background of such an opening that the applicant's statement was read to the jury in the second trial. It is not surprising, therefore, said Mr Holdenson, that the applicant's experienced trial counsel did not relevantly cross-examine the police witnesses. As it was, the cross-examination was directed essentially to establishing that the applicant had not made any telephone calls to Mr Stockley during the night in question.

16 Thus, it was said, either the Crown knew from the outset that it would rely on consciousness of guilt but misled the defence into believing the contrary, or failed to correct such a belief, or alternatively, the Crown only thought of advancing such a case at the final address stage. In either case, it was said, the applicant was effectively denied the opportunity of rebutting such a claim and was thus denied a fair trial.

17 In support of his claim that it would not have been open to the jury to regard the applicant's statement to the police as containing a lie for which the Crown belatedly contended, Mr Holdenson first argued that, given that the applicant claimed in his statement that he went to bed between 9.30 p.m. and 11 p.m., it was not open to exclude the reasonable possibility that the applicant was saying no more that he did not go out that night after he had retired to bed. In those circumstances, said Mr Holdenson, the applicant's statement in question was not inconsistent with Ms Pendergast's evidence as to her sighting of him and, therefore, could not amount to a lie. Secondly, counsel argued, in the absence of police evidence as to the specific questions the applicant was asked to answer, it was not open to infer that his mind was directed to whether he was across the road at Ms Pendergast's place at 8.30 p.m. on 11 June 2002. Moreover, Mr Holdenson said, it is clear that no question by the police could have been specifically directed to whether he had been at Janet Pendergast's that evening because, at the date on which the applicant made the statement, the witness had not come forward with this information. That the applicant's mind was not directed to whether he had gone out at about 8.30 p.m. is also evident, said counsel, from the fact that, when speaking with the applicant, the police were primarily concerned to ascertain whether he had made a threatening telephone call to Mr Stockley at 3 a.m. that morning. The queries as to his whereabouts, it was said, were made in the context of general, routine police enquiries of nearby residents. Counsel further submitted that, even if it was open to the jury to conclude that the applicant's impugned statement was inconsistent with Ms Pendergast's evidence, the jury could not have safely concluded on that basis alone that the applicant had deliberately lied, particularly since there was no evidence that he was asked by the police to address that issue.

18 In any event, said Mr Holdenson, even if the applicant's statement to the police at the relevant time was a lie, it was not open to the jury to treat it as amounting to consciousness of guilt because at least two of the essential prerequisites for the drawing of such an inference, recognised in Edwards v. The Queen[1], could not be made out in this case. First, it was claimed, alternative explanations consistent with innocence could not have been reasonably excluded by the jury. It was said that the applicant might have lied to the police due to his fear of being falsely linked with the murder or due to a reluctance to admit "going through" another person's rubbish bins. It was next argued that the mere fact that the applicant might have been in the vicinity of Ms Pendergast's carport at the time she claimed did not amount to a sufficient link to the murder to constitute a material circumstance and, hence, the lie as to his whereabouts on the evening in question could not amount to consciousness of guilt.

19 The respondent, on the other hand, contended that the applicant's implied admission of guilt was always part of the Crown case and that defence counsel should have foreseen it. Mr McArdle, for the respondent, argued that, on its plain reading, the applicant's statement contained the claim that he had not left his home during the night of 11 June and that the document could not be sensibly read as saying only that he had not left his home after he had gone to bed. It was also contended for the respondent that, even if the policeman who compiled the statement had been cross-examined as to the circumstances of its making, this would not have resulted in any material change to the meaning that could properly be attributed to the impugned part of the applicant's statement.

20 Mr McArdle further argued that it would have been obvious to the jury, and to the applicant's counsel, from the prosecutor's opening that the Crown would contend that the applicant's statement to the police contained the lie. This would have been apparent, said Mr McArdle, from the way in which the prosecutor referred in his opening to it being not "unexpected" that the applicant told the police that he was asleep "that night" and referring very shortly thereafter to Ms Pendergast's evidence that contradicted such a claim. Moreover, it was said, the lie related to a material circumstance and there was no credible explanation for it consistent with innocence and, therefore, it was capable of being treated as an implied admission of guilt by the applicant in accordance with Edwards. Thus, Mr McArdle claimed, in all the circumstances, the trial was not conducted unfairly to the applicant.

21 I do not accept Mr Holdenson's claim that it was not open to the jury to treat the applicant's statement as containing a lie, or that the lie could not be said to amount to consciousness of guilt. I think that on the evidence given at the trial - there being an absence of specific evidence as to the circumstances in which the statement was formulated - the only natural meaning of the impugned passage is that the applicant was thereby asserting that he had not gone out of his house at any time during the night in question, before or after he went to bed. It was open to the jury to accept such an interpretation of the statement and Ms Pendergast's evidence as to her sighting of him.

22 I think it was also open to the jury to conclude that the applicant lied to the police because he was aware that if he told them that he had gone out at approximately 8.30 p.m. on that night, this may have inculpated him in the murder of Ms Maas. Moreover, it would have been open to them to reject the applicant's possible innocent explanations for the lie that were put forward by Mr Holdenson. In particular, the jury could have properly treated as fanciful a claim that the applicant had lied because he did not want to admit that he was rummaging through Ms Pendergast's rubbish. The same could be said of a contention that the lie was told simply because the applicant was concerned that otherwise he might be wrongly charged with the offence. Similarly, I do not accept the argument that the lie did not relate to a material circumstance. It clearly did. It went to establish that the applicant reconnoitred the area around the deceased's premises for the purposes of planning the execution of the offence.

23 On the other hand, I consider that the applicant has not had a fair trial, such as to produce a miscarriage of justice because, given the way the Crown conducted its case, the applicant was effectively deprived of the opportunity of challenging its claim based on consciousness of guilt. I do not accept Mr McArdle's claim that the applicant's trial counsel should have anticipated that the Crown would rely on the lie in question as evidence of an implied admission of guilt. In my view, the Crown opening did not disclose that its case was that the applicant lied to the police and that he did so because of a consciousness of guilt on his part. It is plain, I think, that the prosecutor did not so allege in terms in his opening. But even if it were assumed that, for the reasons suggested by Mr McArdle,[2] it was implicit in the prosecutor's opening that he alleged that the applicant had lied to the police, as Mr Holdenson pointed out, the lie was not one of the "facts" on which the prosecutor relied to link the applicant with the murder. As such, it could not be said that it was implicit in the Crown's opening that the lie amounted to consciousness of guilt. On the contrary, even assuming the Crown's opening alleged that the applicant had lied, the absence of the contention that the lie amounted to a consciousness of guilt would have led to the inference that the Crown would rely on it as going only to the applicant's credit.

24 In light of this, and given that at the first trial the Crown treated the applicant's statement as being exculpatory of him, there is a real likelihood that the applicant's experienced senior counsel at the trial formed the view that the Crown would not rely on consciousness of guilt and that he, therefore, conducted the defence accordingly. More particularly, he may well have adopted the position that, in the circumstances, there was no forensic purpose in cross-examining the police witnesses in order to establish the circumstances in which the statement was made, being a course that he would have pursued had the Crown made it apparent that it would rely on consciousness of guilt. Contrary to the respondent's submission, I think that it is not fanciful to say that cross-examination of police witnesses along those lines might have been forensically effective. Such questioning might have established circumstances in which the applicant's statement was compiled that could have had some bearing on the meaning of the impugned words.

25 When the prosector alleged in his final address that the applicant lied and that the lie amounted to consciousness of guilt, the applicant had no realistic opportunity to meet that claim. I cannot accept Mr McArdle's submission that the respondent could have sought to have the policeman recalled for cross-examination after the prosecutor's final address but chose not to do so and, therefore, the applicant must now abide that decision. I consider that, from a forensic point of view, such a course would have been plainly disadvantageous to the applicant and I am not surprised that his counsel did not seek to pursue it.

26 Fairness demands that if the Crown intends to rely on consciousness of guilt it should make this known to the court at the outset of the trial. This requirement is now reflected in Practice Note No. 1 of 2004[3], which came into operation after the commencement of the applicant's trial. It provides that, after 31 May 2004, practitioners must file, prior to trial, a document identifying "any alleged lies and other post-offence conduct sought to be relied upon by the prosecution as showing consciousness of guilt." If, for good reason, the Crown only decides to pursue such a course later in the trial, it should announce its intention to do so as soon as practicable, and before addressing the jury,[4] and seek leave of the trial judge to press such an argument.

27 Be that as it may, I consider, as I have said, that the trial was unfair to the applicant inasmuch as he was effectively deprived of the opportunity of challenging the Crown's case based on consciousness of guilt. Moreover, I think that the unfairness was such as to constitute a fundamental fault in the trial and, thus, rendered the conviction intrinsically flawed.[5] Given this conclusion, the respondent's contention that the proviso should be invoked must be rejected, notwithstanding that the Crown's case was very strong.[6]

28 Where, as occurred here, the Crown seeks to put forward, for the first time in its final address, a new basis on which it says the accused may be convicted, in circumstances where the defence would not have the opportunity of meeting the new claim, the trial judge should ordinarily not permit such a course to be pursued. To do otherwise would be to allow the Crown to go back on its election as to the case that the accused has to meet, thereby, at the very least, jeopardising the fairness of the trial. Thus, in R. v. Falconer-Atlee[7], the English Court of Appeal held that a change in the Crown case, after it had closed its evidence, so as to allege an alternative basis for convicting the accused was productive of unfairness in the trial process. In that case, on a charge of theft of a dog, the prosecutor alleged in the opening that the theft was constituted by the applicant misappropriating the dog after having purchased it and upon becoming aware that the dog in her possession was not the one she had paid for. In other words, the Crown accepted, at that stage, that the applicant had come by the dog honestly, but mistakenly. At the close of its evidence, the Crown sought to argue that the appellant either stole the dog at the premises of its owner or, if she did not steal it there, she misappropriated once she learned of the mistake and became aware of the true facts. The trial judge permitted the Crown to put that case to the jury and he charged them accordingly. On appeal it was held[8] that such a change in the Crown case was tantamount to adding a second count to the indictment in the middle of the trial and that it "was not the right thing to do". Roskill, L.J. said[9] that "[o]nce the Crown had elected to proceed upon one aspect of the case, ... the Crown ought not to have been allowed at the close of the case for the prosecution to go back upon ... their election, and try to have the best of both worlds."

29 It has also been recognised in a number of other cases that a redirection by the trial judge, at a very late stage in the trial, that has the effect of materially changing the prosecution's case such as to add a new basis on which the jury could convict the offender, in circumstances where the offender is denied the opportunity of meeting the new case by moulding the defence to it through evidence or through the address to the jury, will ordinarily result in a mistrial.[10] It is irrelevant whether the redirection was at the instigation of the trial judge - as occurred in R. v. GAS - or was made at the behest of the Crown - as occurred in King v. The Queen and R. v. Falconer-Atlee. As Deane, J. said in King[11]:

"... Once the Crown elected at the trial to confine its case against the applicant with the result that the trial was conducted on that basis, it could not legitimately expect that it could, after evidence and addresses had been completed, seek, through the trial judge's summing up, to obtain a conviction on some other basis if it became apprehensive that the case which it had presented might be rejected by the jury."

What is critical is that in such a situation the offender has been denied the opportunity to meet the new case. It is the denial of this opportunity that ordinarily renders the trial unfair to the accused and results in a miscarriage of justice.

30 The same applies where the Crown is effectively permitted to put forward, for the first time in its final address, a new basis on which the accused may be convicted. As I have said, I consider that in this case, the prosecutor did just that, thereby denying the applicant the opportunity of meeting the new case. The situation is not at all like the one in R. v. Debs and R. v. Roberts[12]. Here, for the reasons given, the applicant did not receive a fair trial according to law and thus, suffered a miscarriage of justice which requires the verdict to be set aside. It follows that, in my view, ground 2 should be upheld, the verdict set aside and a new trial ordered.

31 In the circumstances, there is no need to consider the other grounds that were

argued by Mr Holdenson.

32 I also agree that the application for leave to appeal against conviction should be allowed, the verdict be set aside and a new trial ordered. I do so for the reasons advanced by Chernov, J.A. in his judgment.

[1] [1993] HCA 63; (1993) 178 C.L.R. 193.

[2] See para. [20].

[3] (2004) 8 V.R. 475.

[4] See R. v. Dung Chi Dang [2004] VSCA 38 at [46] per O'Bryan, A.J.A.

[5] Wilde v. The Queen [1988] HCA 6; (1988) 164 C.L.R. 365 at 373 per Brennan, C.J., Dawson and Toohey, JJ.; Grey v. The Queen [2001] HCA 65; (2001) 75 A.L.J.R. 1708 at 1719 per Kirby, J.

[6] See, for example, Wilde at 371-372.

[7] (1973) 58 Cr.App.R. 348.

[8] At 355.

[9] At 356.

[10] See, for example, R. v. Falconer-Atlee at 355-357 per Roskill, L.J. who delivered the decision of the court; Solomon v. R. [1980] 1 N.S.W.L.R. 321 at 327-328 per Street, C.J. and at 334-336 per Moffit, P; King v. The Queen [1986] HCA 59; (1986) 161 C.L.R. 423 at 428-430 per Deane, J. and at 432 per Dawson, J.; R. v. Hewitt [1997] 1 V.R. 301 at 308 per Winneke, P.; R. v. GAS [1998] 3 V.R. 862 at 863-864 per Ormiston, J.A. and 876-879 per Batt, J.A.; and R. v. GAE [2000] VSCA 18; (2000) 1 V.R. 198 at 203-205 per Winneke, P. and at 224 per Chernov, J.A;.

[11] At 429.

[12] [2005] VSCA 66. In that case, the Crown specified in its final address, with much greater particularity than at the commencement of the trial, the respective roles of the applicants in the offending. As Vincent, J.A. said: "...that is neither uncommon in a criminal trial, nor is it necessarily the cause of any potential injustice. Often, it is not until late in a trial that the full picture can emerge before a jury or the significance of the evidence can be fully comprehended."