R v Johnstone [2008] VSC 583

3 In the interview the accused said a number of things about what happened to the deceased. The most constant theme is the accused saying that he was sick and tired of sexual references of a homosexual nature being made to him over the last few months on a very regular basis, and that "I just cracked it" or "I just lost it". The accused said he had hit the deceased with his fists to begin with, and then the statue of a platypus. Later he said at Question 105 and following, "Can you explain to me, do you recall the actual assault?" "No, I don't, I can't recall. I remember hitting him and I gave him a couple of kicks to the head and that was it. I ended up in bed after that."

"Do you recall how the assault finished up?" "It finished up with Phil on the ground and me going to bed." "You made some comment about a statue, a platypus statue?" "Yeah." "Can you tell me how that came into the argument?" "I just seen it. I picked it up, I just cracked him over the head with it."

"OK. So in relation to when you say you've just lost it?" "Yeah." "Was it an immediate response by you?" "Pretty much and straight away." "How long do you think the assault occurred?" "About five minutes." "OK. And you did mention that you do remember giving him several kicks, is that right?" "Yeah." "And that you utilised a statue, which was a platypus statue?" "Yeah." "Alright, when was that and where was he at the time you were utilising that statue?" "Lying on the ground." "Was he defending himself at all, during this?" "No, he was just being more - just how would you say, more sexual gratified. He just kept going and going. Just - just wouldn't shut up." "I don't exactly understand what you mean. Can you just clarify that?" "As in keep on - just kept on going with the sexual gestures as I was bent." "As you were assaulting him he was - - -?" "Yeah."

"Alright. After you've struck him the first time, what happened then?" "He's made another comment, kept on pushing the subject. I've hit him in the head. This time I laid into him good and proper with both fists." "Can - can you explain exactly how you did that step by step?" "Just one hit after another, I guess." "With - with a closed fist?" "Yep." "And where were you striking him?" "In the head."

"What was he saying?" "He wasn't saying a great deal at the time and I just picked up the statue and I've cracked it over his head and rant and raved." "Alright. So when you've - prior to - using the statue - - -?" "Yep". "Was he responding, was he awake?" "Yep." "And those kicks. How many kicks do you think you gave him?" "I gave him one kick."

"Can you describe what that means?" "It's just sort of mantel piece that you would put on top of your heater, I guess". "OK" - this is a description of the platypus. "It's pretty solid. Yep." "And what have you done with that?" "Got that, just dropped it on his head. I didn't throw it physically, I just dropped it." "So where did that strike him?" "In the head." "Right. When that hit him or struck him on the head did you still have possession of it? When you say 'dropped', do you mean you still held - - -?" "I held it over the top of him, and let go of it." "Prior to that. Do you think he was awake at the time?" "Yeah, he was conscious at that stage still." "And from how high up did you say you actually dropped it?" "I'd say a metre, a metre and a half." "OK, and once the statue struck him?" "Yep" "To the head, was there any response from him?" "No, he was out cold." "Did you use the statue again after that?" Answer: (No audible reply.) "So you only dropped it on his head once?" Answer: "Yep."

9 It is also apparent on the whole of the evidence that the accused struck the deceased at least once with an office chair by bringing the chair down in a downward motion with sufficient force to leave marks of parallel lines on the upper body of the deceased. There is no mention of the use of the chair in the attack in the record of interview. Indeed, the accused denied any such use.

"That was overturned, can you tell me about the seat?" "No, don't even remember the seat, to tell you the truth." "It's turned upside down." "You don't recollect that seat at all?" "I know the seat you're talking about. It's a computer seat." "And where does that normally - - -?" "Near - near the computer." "OK. Where's the computer situated?" and so on.

11 And then at Question 673, "OK, did you utilise that chair at any point when you've assaulted him?" "No."

12 For completeness it should be noted that the accused has no recollection of a visit to the premises on that night by four persons, including Andrew Stud, who he knew as a former tenant of the premises. That is not a matter that could possibly go to consciousness of guilt or even to veracity, but it might well go to the question of whether or not the jury accept that the accused man may have had an impaired memory.

13 At a later place, and I will provide the reference to it, the accused man accepts in the record of interview that there is a possibility that things had happened that he did not recollect, although he does give a very detailed description of the use of the statue and appears satisfied in his own mind that he used the statue only once. That detailed recollection is to be compared and contrasted with his complete absence of recollection about the use of the chair.

14 The question has arisen whether or not it can be said that in the record of interview the accused altered his version of events and omitted any reference to the chair out of consciousness of guilt. Although the evidence is not very clear, it would be likely that the jury would accept that the accused was drunk on this night. The accused's memory appears to be impaired to the extent that he does not remember the visit of the four people to the house on Friday night including Stud. He does, however, purport to give a detailed analysis of the way in which he beat the deceased, and that can be found again at Questions 820 to 829. It seems in that portion, while admitting the possibility, the accused was expressing some confidence about what happened, and when I say expressing the possibility, expressing the possibility that there are things that have happened other than things that he has described.

15 In my view, when looked as a whole, it would be open to the jury to conclude beyond reasonable doubt that the accused deliberately understated what he had done. It follows that a direction will need to be given to the jury about it. There is a strong possibility that if the jury concluded that the accused did lie, it was out of consciousness of guilt. It is almost impossible to conceive of a situation where a jury found such a significant lie, but would use it only for credit purposes, almost irrespective of what direction I gave about it.

16 Mr Meredith has argued strongly on behalf of the accused, that in this case it would not be possible for a jury to determine between murder and manslaughter in that analysis. He relied upon what was said by the Court of Appeals sitting as the Full Bench in R v. Ciantar.[1]

17 It is true that in Ciantar a partial distinction of the kind contended for is made, but the court was in fact more expansive in its consideration of the principles.

"We accept that there may be some circumstances in which post offence conduct is equally consistent with two or more possible offences, or is otherwise intractably neutral. Where that is so, it may not be open even on the totality of the evidence to draw an inference that the accused had a consciousness of guilt of some particular conduct at the time he told lied or performed some act which the prosecution relies upon as constituting post offence conduct. But where such lies or conduct are considered in the context of all the evidence, it is not to be assumed that it will usually be so. Indeed, in the scheme of things, it is not likely to be so in many cases, and to the extent that Heyes implies the contrary, in our view, it should not be followed."

19 The court then proceeded with an analysis of Heyes[2] and of the Canadian cases on which that proposition was based, not relevant for present purposes.

"Of course there will be circumstances in which post offence conduct is incapable of being probative of guilt of the charged offence as opposed to a lesser alternative, or another count on the presentment where there is a multiple count presentment or another offence which is disclosed by the evidence. For example, in a case of murder where presented to a jury on the sole basis that the accused admitted that he killed the deceased unlawfully, but denied murder, and the only evidence of killing, apart from the admission, was that the accused had fled the killing and initially denied involvement in it, the jury could not properly be satisfied that the accused was guilty of murder. On the limited evidence available, one could not exclude as a reasonable possibility that the accused was guilty of manslaughter or possibly some lesser included offence and the jury would need to be so instructed." (I say in this case that in relation to the confession that has been provided by the accused man it is a confession which plainly admits to at least manslaughter and subject to the view that the jury take of it, it may be that it is a confession to murder, depending on what view the jury take of the words that are used.)

"But in most murder cases the evidence is more extensive than that. Usually the Crown presents evidence about the relationship, if any, between the deceased and the accused, the events leading up to the time of death, the place and time of the circumstances of death, the means of killing and the cause of death, other injuries which may have been inflicted on the deceased, and any injury suffered by the accused in the course of the killing. Although the post offence conduct may not be enough in itself to sustain an inference that the accused killed with intent to kill or cause really serious injury, as opposed to some lesser state of mind, such evidence when combined with evidence of the accused's words and conduct before and during the killing, and forensic evidence, may well satisfy the jury beyond reasonable doubt that the accused killed the deceased with murderous intent and comparable reasoning is equally applicable in trials for other offences. In some cases, for example, there may be something about the exact terms of the lie which when matched against the known circumstances of the actus reus, lead a jury to conclude beyond reasonable doubt that the accused had the necessary intent or mens rea. The point is aptly illustrated in the judgment of Heenan, there reference is made to the case of Meko a Western Australian case, (a case in which the accused had told a lie about whether or not he had used a knife, as part of the circumstances surrounding the killing of the deceased, who he had otherwise killed by striking her with an axe.) The court found that the lie about the knife could go to consciousness of guilt of the crime of murder and it bears some similarity to the present case. Application for leave to appeal was made to the High Court in Meko and refused. In other instances there may be something about the precise circumstances of flight or the nature of other post-offence conduct which when related to the circumstances or means by which the actus reus was committed lead a jury more confidently to conclude that the accused may have had the necessary intent or mens rea. Yet again, in other cases it may be a combination of these things with others of a similar or disparate kind according to the facts of the case or it may be something else among the myriad of facts and circumstances which inform the context of human interaction. Examples can be multiplied" - and the court proceeded to deal with further examples."

22 I conclude that the present case and the circumstances of the present case come within the principles that have been set out by the court in Ciantar and that it is therefore appropriate that an Edwards[3] direction be given. It must be remembered that one of the reasons for the giving of an Edwards direction in circumstances such as the present is the protection of the accused as against the improper reasoning by a jury of using such circumstances wrongly. The omission of any mention of the office chair is such a telling circumstance that its omission, together with the other matters in relation to which the accused attempts to lessen his involvement in the crime require an Edwards direction. I am satisfied that the material is capable of being used to show consciousness of guilt. I am not satisfied that any version of the Zoneff[4] direction could be given which would satisfy the needs that arise in this case.

23 The other matter that I would underline is, of course, the defence position in relation to the material is that the jury could not be satisfied beyond reasonable doubt that the material is a lie, that it does misrepresent the position. It is simply a matter that the accused man has forgotten. The jury will plainly and in the clearest terms be instructed that it is only in circumstances if they are satisfied beyond reasonable doubt that the omission and denial of the use of the mention of the chair is done as a deliberate lie that they can use it for any purpose whatsoever.

[1] R v Ciantar [2006] VSCA 263. See also R v Jakimov [2007] VSCA 9.

[2] R v Heyes [2006] VSCA 86; (2006) 12 VR 401.

[3] R v Edwards [1993] HCA 63; (1993) 178 CLR 193.

[4] R v Zoneff (2000) 200 CLR 234.