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[2006] VSCA 299
Court of Appeal (Vic)
2006-12-20
VINCENT and NEAVE JJA and KING AJA
Original judgment source is linked above.
Criminal Law - Conviction - Murder - Whether verdict unsafe and unsatisfactory - Directions in respect of lies - Consciousness of guilt - Whether trial judge erred in failing to extend the Edwards direction to the alternative verdict of assisting an offender - Edwards v R [1993] HCA 63; (1993) 178 CLR 193 - Application dismissed.
1 The applicant, who now seeks leave to appeal against his conviction,[1] was found guilty by the jury empanelled on his trial[2] of the murder, at Shepparton on 24 October 2003, of a 19 year old man, Adrian Joseph Power.[3] His alleged co-offender, Sean Petot, pleaded guilty prior to the trial.
The Background
2 Petot and the victim were close friends for more than three years, having initially met while they were living in Eaglehawk in Victoria. A few days before the death of the deceased, the two young men encountered and befriended the applicant with whom they then travelled to Shepparton with the intention of seeking work as fruit pickers. They booked into the Midpark Caravan Park at Mooroopna and resided there until the day on which Adrian Power was killed.
3 On 24 October 2003, the group went shopping at the Safeway store in Shepparton and, shortly before 7.00 p.m., were returning on foot along a causeway, linking Shepparton and Mooroopna, with a shopping trolley containing their purchases when police members spoke to them.[4] They noted that Petot appeared to be significantly affected by alcohol, whilst the applicant appeared to be quiet and did not display any signs of intoxication. The victim was walking ahead and appeared to be in a "huff". The young men were directed to a bicycle track adjacent to the highway at the side of which they were walking, as it provided safer access for them.
4 It would appear to be relatively clear that it was only a short time later that a prolonged, vicious, brutal and violent attack was made on the victim, whose body was found the next day, a short distance from this track. He had been stabbed approximately 55 times, kicked, punched and struck with a cylindrical object to the face, head and upper torso. The position of some of the wounds indicted that they had been inflicted upon him while he was on the ground. The knife used was found imbedded in his lower jaw.
5 The Crown contended at the trial that the applicant was actively involved in this attack and that he participated with the intention of killing or, at least, causing the deceased really serious injury.
The Evidence
6 Sergeant Jason Kelly attended the causeway late in the afternoon on 24 October 2003. He saw one male person in the vicinity of the bridge and two, who were together east of it. He spoke to the two men who were together and noticed that the third man ran back towards them. He asked them to produce identification. One of those to whom he spoke (Petot) appeared to be under the influence of alcohol and was very talkative. The other (the applicant) who did not give any impression of being so affected, was quiet and only said anything when asked a direct question. The young men said that they were looking for work as fruit pickers. Sergeant Kelly pointed out that they were a "bit early". When he left them, the group were walking towards Daish's Bridge and he detected no signs of disagreement between them.
7 Senior Constable Frank Scopellitti was on patrol with Senior Constable Jason McConkey in Mooroopna on that day. At about 6.50 pm they received a radio communication from Sergeant Kelly informing them that three young males were "playing chicken" on the roadway along the causeway near Daish's Bridge. When they arrived, he saw the sergeant talking with three youths. Petot, was observed to be very talkative and "bouncy" and spoke on behalf of the group. He smelled of intoxicating liquor and his speech was slightly slurred. The applicant, by contrast, was very quiet and contributed to the conversation only when directly addressed. The third young man, Adrian Power, smelled only slightly of intoxicating liquor. The group, who had a shopping trolley with them, told the police that they were staying at the Midpark Caravan Park. After speaking with them, the police were about to leave when the witness noticed that the applicant was pushing the trolley, Petot was sitting in it and that Power was walking a short distance in front of them. As the three young men were close to the road, the police stopped their vehicle behind them and sounded its car horn, pointing out that the nearby bicycle track would be safer to walk along. Power, who seemed annoyed, started to walk towards it. The other two followed and the police left.
8 Joseph Caleb Allemand, a student, was, on Saturday 25 October 2003 at approximately 10.00 am, pushing his bicycle which had broken down, along a dirt track which linked with the bicycle track at a point close to where the group was last seen, when he came across the body of the deceased.
9 Senior Constable Stephen Drummond attended the scene approximately four hours later. He observed the separate bituminised walking track which ran from Daish's Bridge to the south side of the causeway in Mooroopna and saw the victim's body which was located to the side of a linked dirt track. In the long grass nearby, he found a shopping trolley which had blood smears on it.
10 Later that day, he went to the Midpark Caravan Park in Mooroopna. He examined the contents of a rubbish bin outside the caravan occupied by the three young men and found some clothing, including some cut-off jeans with bloodstains on them. Fingerprints and swabs were taken from items in the caravan.
11 Robert Skvor, a forensic officer experienced in fingerprint examination, examined the items taken from the caravan at the Midpark Caravan Park on 26 and 27 October. He compared them with the latent fingerprints of Power, Petot and the applicant and found that they matched. He also noted that some items had apparent bloodstains on them.
12 Rebecca Heyes a forensic bio-chemist, gave evidence that she examined the DNA samples taken from blood found near Daish's Bridge, clothing taken from the rubbish bin at the Midpark Caravan Park, canned food taken from the caravan and clothing taken from the applicant and Petot. Many of the blood samples taken matched the DNA of Adrian Power.
13 Ashley Brown, an investigations manager at the Commonwealth Bank, gave evidence that at 7.34 am, on 25 October 2003, a balance enquiry was made at the ATM in Shepparton on Adrian Power's account. The account was 34 cents in credit. At 7.34 am that day there was an attempted withdrawal of $200, which was declined. On 27 October 2003, a Centrelink Youth allowance of $295.30 was credited to the account. At 3.36 pm that day a further balance enquiry was made followed by a withdrawal of $290 in cash from the ATM in Eaglehawk. On 31 October 2003, another cash withdrawal of $5 was made at the Australia Post shop in Bendigo.
14 Christine Regan, who knew Petot, lived in a house in Eaglehawk. On Saturday 25 October 2003, Petot and the applicant arrived there, asking her whether they could stay for a while. They were each given a bedroom and the applicant stayed for about three or four days. The witness said that the applicant was very quiet and did not leave the house, save on one occasion, and that he looked terrified. By contrast, Petot behaved in what she regarded as his usual "chirpy" manner. At one stage, Petot asked a friend named Darren, who lived opposite to shave his head. She noticed Petot had sores on the back of his hand.
15 Detective Sergeant Christopher Dorman, the informant, travelled to Adelaide in order to extradite the applicant from South Australia to Victoria. He later conducted a tape-recorded interview with him, on 30 December 2003, in the course of which the applicant made a number of statements that the prosecution contended were deliberate lies indicative of his consciousness of guilt of involvement in the murder of the deceased. I will return to this aspect when addressing the grounds of the application.
16 Dr Noel Woodford, a senior forensic pathologist, who conducted an examination of the body of the deceased, attended the scene on 25 October 2003 at approximately 6.45 pm, and gave evidence that, in his estimation, the body had been dead for over 12 or possibly 14 hours. He found scrape abrasions on the victim's upper body consistent with being dragged along a rough surface. He also found a small amount of vegetation on the body.
17 Dr Woodford observed a number of injuries on the body. They included bruising on the head typical of the application of blunt force or trauma. Other markings were consistent with having been inflicted by a cylindrical object. The existence of the bruising indicated that the injuries were sustained while the deceased still had circulation. A further injury was described as a patterned intradermal bruise suggestive of contact against a reasonably distinctly patterned object, for instance the sole of a shoe, and involved the application of, at least, moderate force. There were multiple injuries to the head, including lacerations and a broken nose. As the skin was broken, he concluded that at least moderate to severe force had been employed.
18 Dr Woodford noted approximately 32 separate puncture wounds mainly on the sides and the front of the neck. Most were unable to be probed beyond a depth of about 10 millimetres. He observed up to 15 puncture wounds on the chest. They differed from the wounds to the neck in that they appeared to have been made by some pronged instrument as they were grouped in pairs. There were also nine puncture wounds over the front part of the abdomen extending from the lower part of the sternum to the naval similar in size to the puncture wounds on the chest and the neck. The jugular vein, trachea, lungs, abdomen, liver and stomach were punctured. The skull was fractured and a knife was embedded in the jaw. It was most likely, Dr Woodford considered, that the penetrating injuries to the neck were sustained while the victim had circulation and his heart was still beating.
19 The victim also sustained a compound dislocation to the fingers of the right hand. Significant force would have been required to cause that injury.
20 Scrapes, bruises and abrasions found on the arms were likely to have been caused by blunt trauma.
21 The injuries were sustained over discrete areas of the head, with some overlaps. Some had an impact look to them and others a more tangential appearance, consistent with a kick. The injuries to the hand and fingers were consistent with the description of "defensive" injuries.
22 All of the injuries were, in the opinion of Dr Woodford, sustained at around the same time. The cause of death was stated by him to be "head and neck injuries", with the mechanism of death being described as concussion head trauma with or without subsequent positional asphyxia.
23 The deceased had a blood alcohol reading of 0.06 per cent and samples showed the presence of cannabis consistent with recent use.
24 The applicant did not give evidence in the trial.
The Prosecution's Contentions
25 In his address to the jury, the prosecutor submitted that there were a number of circumstances that inevitably led to the conclusion that the applicant was involved in what was accepted by all involved in the trial as the murder of the deceased.
26 First, he pointed to the location of the body - which was very close to the point at which the group was spoken to by the police - and the time of death - which, on the evidence of Dr Woodford, was likely to have occurred shortly afterwards. It was fanciful to suggest, he contended, that the group had left the area and returned, by coincidence, to that precise spot, or that Petot had murdered the victim and that the applicant was not present and came to the area afterwards.
27 Secondly, he drew attention to the finding of the blood of the victim on the clothing of both Petot and the applicant. This, he argued, indicated that both were present, and involved, at or around the time of death.
28 Thirdly, the handle from the Safeway shopping trolley, that the young men were seen pushing, was found near the body and there were indications that a cylindrical object, similar in shape to the handle, had been used to strike the deceased
29 Fourthly, the evidence of Dr Woodford made clear that the attack on the deceased was vicious and sustained with, at least, two weapons being used. This suggested the involvement of two persons, he argued.
30 Fifthly, he addressed the conduct of the applicant after the death of the deceased. At minimum, he argued, the applicant must have known what had befallen the deceased and yet he returned to the caravan, at which they had been staying, with the deceased's blood on his clothes. He pointed out, in this context, that one of the cans of food that was taken to the caravan had both the applicant's fingerprint and the blood of the deceased on it.
31 Sixthly, the applicant remained in the company of Petot and was staying with him when an attempt was made to access the deceased's bank account on the following day.
32 And finally, the prosecutor asserted, the applicant lied about his knowledge of the ownership of, or who was wearing, the blood-stained clothing found in the bin outside the caravan and did so because he was aware that the truth would implicate him in the murder. The trial judge summarized his arguments with respect to lies in his charge in the passage -
"... The physical link between Martin, Petot and the murder is the bloodstained clothing, stained as it was with Adrian Power's blood. [The Prosecutor] said Martin told deliberate lies about Petot's jumper, about his own Dunlop shirt, and about his own Pulse brand top and about the clothing in the bin.
Those lies relate to a matter of great significance in the case, namely the physical link between Martin and Petot and the murder. They were told because Martin feared that the truth would implicate him in the murder of Power. They are lies which an innocent man would not tell. If there was some innocent explanation why Power's blood was on the clothing he would not have lied.
You might think he was surprised when Mr Dorman came along and he said to Mr Dorman 'How did you find me?' and then when he was shown the photographs, he knew the truth would implicate him and that is why he lied.
[The prosecutor] said the case against Martin is made stronger by those lies. Without the lies, there is a very powerful circumstantial case to establish his guilt of murder, but when you add the lies, the case is overwhelming. Thus the evidence in the case is such that the proper verdict is a verdict of guilty of murder."
The Defence Address
33 Counsel for the applicant commenced his address to the jury by describing what took place as an "unanticipated and unplanned incident" involving "minutes of mind numbing madness of unmitigated savagery". It was unthinkable, he argued, that more than one person was responsible. The Crown case was based essentially upon the actions of his client after the death of the deceased, but that evidence was incapable, when properly analyzed, of supporting it. It became clear in the trial, counsel submitted, that the applicant was a "quiet, peaceful, calm and polite" individual and the possibility could not be excluded beyond reasonable doubt that he was not implicated in the death and found himself in a situation outside his experience and with which he was unable to cope. His conduct thereafter, it was said, could be seen to be consistent with this scenario and his personality. There was no evidence, counsel contended, upon which the jury could conclude that there had been any prior agreement involving his client to attack the deceased and nothing to indicate that the applicant had aided and abetted Petot. When spoken to by the police, Petot was observed to be very talkative and affected by alcohol. By contrast, the applicant was described as calm and polite. How likely was it, counsel asked rhetorically, that he would turn into "a mad homicidal animal" within a matter of a few minutes. There was no evidence, he submitted, that the applicant had received any money from the deceased's account or that he was even present at the time that it was withdrawn. With regard to the admitted lies told by the applicant when interviewed, the judge summarized the defence position as follows -
"He [Counsel for the applicant] says well, the Crown relies substantially on the Dunlop shirt of Martin and he said, you will have no difficulty thinking that some of the things that Martin said to the police about the clothing were lies. He pointed out the Crown's contention is that Martin lied, because he thought the truth would implicate him in the offence, but then he pointed you in advance to the directions that I gave you yesterday as to how you use lies and take into account the fact that there can be innocent reasons why people lie.
He said you can tell a lie about something in circumstances when you are not guilty of what is being alleged, but if you are scared or you might be fearful you might be falsely accused if you tell the truth. You might think, 'Well, who is going to believe me if I tell the truth?' He said lies can be told for many reasons and it is simply not as simple and straight forward as the Crown would suggest."
34 Counsel for the applicant submitted that there were a number of ways in which the blood of the deceased could have been transferred to the clothing of his client, suggesting that -
"... It could have been through moving the body after Adrian Power was killed, it could be through Petot being involved in an altercation with Martin at the scene, it could be Martin returning to the scene and finding Power's body there and coming into contact with the body, it could be Martin attempting to intervene while Petot was attacking Power.
It could be Petot wiping his clothes on Martin and then the clothes being together in the bin."
He argued that none of these possibilities could be seen to have been excluded beyond reasonable doubt and, accordingly, no inferences adverse to the applicant could be based upon this evidence.
35 Counsel also submitted that, if the jury found the applicant not guilty of murder, they would need to consider whether he was guilty of assisting an offender contrary to s.325 of the Crimes Act, not contending, at least directly, that that verdict was not open to them in the circumstances.
36 In conclusion, he submitted that the Crown case was based on conjecture and speculation and could not be regarded as strong enough to support the conviction of his client.
The Grounds of the Application
37 The application is based upon the complaints set out in the applicant's Full Statement of Ground which read that:
1. The verdict is unsafe and unsatisfactory in the sense that it was not open to a properly instructed jury to be satisfied beyond reasonable doubt that the applicant was guilty of murder:
(a) on the basis that he killed the deceased;
(b) on the basis that he aided and abetted or otherwise acted in concert with Mr Petot.
2. The learned trial judge erred in his directions on lies and consciousness of guilt; and in particular he erred:
(a) in leaving to the jury the argument that the lies relied on by the prosecution were capable of supporting an inference of consciousness of guilt of murder;
(b) in failing to identify how the lies were material to the crime of murder as distinct from the crime of assisting an offender;
(c) in failing to direct that, before the jury could use the lies relied on by the prosecution as going to consciousness of guilt of murder, they must exclude the possibility that the applicant lied to conceal his involvement in the crime of assisting an offender;
(d) in failing to extend the Edwards direction to the alternative verdict of assisting an offender.
Ground 1
38 It was argued under ground 1 that the evidence taken as a whole was incapable of supporting the inference that the applicant was a party to the murder of the deceased either as a participant in the attack made upon him or because he could be found to have aided and abetted Petot.
39 A submission to similar effect was made by counsel for the applicant at the trial at the conclusion of the Crown case. It is evident from his Honour's careful exposition of the principles to be employed when considering whether a no case submission should succeed,[5] and his analysis of the state of the evidence and submissions, that his approach to the matter accorded with the principle and that he directed attention to all relevant features in the evidence. He concluded -
"As I have stated, the combined force of those facts would, in my view, make it reasonable for the jury to conclude that the accused man was present at the scene of a killing. In my view the jury would be entitled to reject as unreasonable any alternative inference, namely, that the accused man was not present, but later for some reason or other returned to the scene.
Further, I consider that the nature, number and severity of the injuries are such as would entitle the jury to reasonably conclude that two people were involved in the killing, particularly where: firstly the victim and the other two men were seen together shortly before the killing occurred;
Secondly, each of the other two men had the blood of the victim on his clothes;
And thirdly, the two men left the scene together and remained together for a period of some five or six days.
That last point is, in my view, significant. The killing of the deceased man was ferocious, savage and utterly brutal. The amount of violence inflicted on the deceased man was truly frightening.
If in fact the accused man was an innocent bystander a jury might well consider it extraordinary that he might have remained in the company of Petot, dispose of his clothes with the clothing of Petot, travelled with Petot to Eaglehawk and remained in the house at which Petot was residing, for a few days at Eaglehawk. In his record of interview at Question 104 the accused man did not even know Petot's surname.
All of those factors combined would, in my view, entitle a jury to reasonably conclude that the accused man and Petot were jointly involved in the commission of the crime of murder in the manner put by the Crown.
There are, of course, other possibilities which have been referred to by [Counsel for the applicant]. It is not for me to determine whether those possibilities ought to be accepted by the jury. It is sufficient for me to conclude, as I do, that on the outline of the evidence put by the Crown in this case it would not be unreasonable for the jury to reject those other possibilities as unreasonable hypotheses consistent with innocence.
Finally, the inference of guilt is in my view strengthened by the lies told by Martin in his record of interview in which he denied knowledge of the clothes of Petot and himself which were stained with Power's blood.
As I have held, that evidence is reasonably capable of disclosing a consciousness of guilt of the accused man. In other words, a jury might reasonably conclude that Martin lied about the clothing, because he realised that the truth about them might implicate him in the murder. That evidence reinforces the significance of the blood on the clothing and the inferences to which I have already referred.
Taking all that evidence together, as I stated, I consider that the jury could reasonably conclude beyond reasonable doubt that Martin either acted in concert or aided and abetted Petot or was aided and abetted by Petot in the murder of Power.
I do not consider that the jury would act unreasonably if they rejected any competing inferences consistent with the innocence of the accused man as not being reasonably open to them."
40 I am unable to detect any error of omission or commission in his Honour's ruling and, for practical purposes, nothing later occurred that could be seen to cast doubt upon it or required that it be reconsidered. It was, in my opinion, at the time of the ruling and at the end of the trial clearly open to the jury to find beyond reasonable doubt that the applicant was a participant in the attack upon Power and that he possessed the necessary intent at the time.
41 The argument was also advanced under this ground that it was not open to the jury to exclude either the reasonable possibility that the applicant had lied about the clothes found in the bin at the caravan park out of fear that the truth would implicate him in the offence of assisting an offender or because he was concerned that he would be wrongly implicated in the offence of murder. Accordingly, it was submitted, the lies should not have been taken into account in determining whether there was a case to go to the jury of the applicant's guilt of the principal offence.
42 There is no substance to this complaint. As the summary of evidence and the outlines of submissions set out earlier in this judgment indicate, there was ample evidence to support the inference that the applicant was present at the time of the killing and in sufficient proximity to what took place to have the blood of the deceased on his clothing. There was evidence also that two weapons were involved and open to the jury to conclude that there were two assailants. In short, in conjunction with the evidence of their continued association, there was a strong circumstantial case against the applicant. Against that background, his lies with respect to the clothes found in the bin were clearly material. Of course, the jury had to exclude beyond reasonable doubt the hypotheses that he lied by reason of fear of being falsely implicated or because he had assisted Petot, but it does not follow that, because these possibilities had to be considered and excluded, the issue should not have been left to the jury or taken into account by the trial judge in determining whether there was a case to answer. Before this Court would be justified in concluding that his Honour fell into error in having regard to this evidence and method of reasoning with respect to it when dealing with the no case submission or whether in our view the admission of the evidence has led to a miscarriage of justice we would need to find that the inference upon which the prosecution relied was not reasonably open on the evidence. In my view, that is not the case.
Ground 2
43 There are four limbs to this ground, but they all relate to the proposition that the jury should have been instructed that, before they could use the lies relied upon by the prosecution as going to the consciousness of guilt of the applicant of his commission of the crime of murder, they had to exclude the specific possibility that he lied in order to conceal his involvement in the alternative of assisting an offender.
44 This matter was the subject of attention at the trial, with a request for the provision of such instruction being made by counsel then appearing for the applicant. As the following passages from the transcript demonstrates, the judge indicated that he was loathe to direct in that fashion as he was concerned that it could disadvantage the applicant, and troubled by the prospect that the jury could be confused.
"[COUNSEL]: Yes, your Honour. It occurred to me that perhaps with the two alternative charges, if the jury were to use consciousness of guilt subject to the Edwards[6] direction, whether it should be put on the basis that if they thought that in relation to the count of murder, that excluded the s.325 offence because it has to be consciousness of guilt of the offence charged. Conversely whether they should then be directed as far as the alternative charge, whether subject to the Edwards direction there was a consciousness of guilt in relation to those post killing activities of Damien Martin, excluding a consciousness of guilt in relation to the count of murder.
HIS HONOUR: That's very complex if we start doing that. I would have thought that that is going to highly confuse the jury in a way that probably would pull the benefit out of it for the accused man. And once we get into that form of sophistry it just seems to me that you've got the ability to confuse the jury, so they say, 'look he told a lie, he's guilty.'
Is what you're saying to me this, that they have to focus on what is it - what offence he'd be implicating himself in.
[COUNSEL]: Yes.
HIS HONOUR: And what's the point you wish me to make?
[COUNSEL]: Well, subject to the rider, the directions, - - -
HIS HONOUR: I've only really directed them in relation to consciousness of guilt of the murder of Power because that seemed to me the most appropriate way to do it. Do you want another direction on Edwards in relation to the second matter?
[COUNSEL]: I think it should be.
HIS HONOUR: I'll hear from [the prosecutor] I must say, that I think once we revisit that it can create confusion which if anything will work against your client. I mean, the whole idea of the Edwards direction, in a case where there are lies as to a material matter is to ensure that they understand that they don't leap from such lies to guilt. And I start (indistinct) them up by saying 'well, that's in relation to murder, you also have to take that into account in relation to the second matter.' I can direct them on that if you wish me to. I'll hear from [the prosecutor], but I really query the wisdom, but I'll hear from [the prosecutor].
[COUNSEL]: Yes, your Honour.
HIS HONOUR: You wish me simply to say that they have to take into account the same principles and apply them in relation to the alternative count if they get to that.
[COUNSEL]: Yes, your Honour.
HIS HONOUR: I'd be very loathe to go right back through it all again. I would have thought that would just create confusion, which would in the end I figure, would be very unfair to your client.
...
HIS HONOUR: Thanks, [prosecutor]. That really is the problem [counsel] is I'd have to really go back over it and what you're asking me to do in a sense is give an Edwards direction on the 325 alternative.
[COUNSEL]: Yes, your Honour.
HIS HONOUR: And if I did that, firstly the lies have not been relied on in relation to 325 alternative, but secondly, it just seems to me it's going to confuse them in relation to what I've put to them relating to the murder count and my concern is, I don't do anything that undermines the strength of the Edwards direction in relation to that, particularly it doesn't rely on the proposition that [the prosecutor] reminded me to put to the jury, that is you don't go from lies to murder.
In a sense, I'm concerned about the fairness to your client. I really think to do that is going to really cause an enormous amount of confusion in relation to a piece of evidence that no one has mentioned in relation to 325.
...
[COUNSEL]: I've been thinking about it and I thought I may not pursue it.
HIS HONOUR: Yes, well, I agree with that. In fact it calls to mind the authorities which really say you shouldn't raise these issues as false issues, unless there's a danger that a jury might indulge in a false method of logic. I don't think there is such a danger. No one has adverted to that evidence on 325, but the converse danger is great and that is, if I give them a direction on 325 firstly, it might cause them to use that reasoning, when they've not been invited to do so and the greater danger is, I'll just confuse them."
His Honour's instructions with respect to the lies commenced with their identification, concerning which there was no controversy, and continued -
"Let me tell you firstly what the Crown says about that and what the accused says or what [counsel for the accused] says, and then tell you the legal principles you have to apply in relation to those questions and answers I have read to you. What the Crown, the prosecution, contends is this. That you should be satisfied that each of those answers that I have just referred you to are lies. That is, deliberate untruths told by the accused man to the police. The Crown says that you should be satisfied beyond reasonable doubt that the accused man Mr Martin lied because he knew that if he told the truth he would implicate himself in the crime of the murder of Adrian Power.
On the other hand, [counsel for the accused], as I understood his final address, does not put in issue the allegation that the answers which were given by Mr Martin in the interview were lies or deliberately untruthful. But he says that there were a number of innocent explanations why a person in the position that Mr Martin was at the time when he was spoken to by the police might have told such lies. In other words, what [counsel] submits to you is that you should not be satisfied beyond reasonable doubt that the accused man lied because he knew that if he told the truth he would implicate himself in the murder of Adrian Power. Rather, [counsel] submits you should accept as reasonable the hypothesis that Mr Martin may have told the lies because he was fearful that he would not be believed if he told the truth, or he was fearful that if he told the truth he would be falsely accused of the murder of Adrian Power."
45 He then proceeded to instruct them as to the principles of law to be applied.[7] After pointing out the need to be satisfied beyond reasonable doubt that the accused deliberately lied about a material matter which revealed that he had "knowledge of the murder (my emphasis) of Adrian Power or some aspect of it", he continued -
"It is really the fourth element that I move to that was the basis of the submissions that I have already outlined to you by [counsel] and which is really the most important matter for you to take into account in this case in considering these answers. To use the lies or the answers by Mr Martin in the manner contended for by the Crown you have to be satisfied beyond reasonable doubt that the lies were told because the accused man knew that the truth of the matter about which he lied would implicate him in the offence. You can only draw that inference if you are satisfied that there is no other reasonable hypothesis for the telling of the lie.
Now, because that is an important principle I will repeat it. And I notice, and I am pleased that some of you are writing that down because it may assist. It is an important principle to the use of these answers in the manner that are contended for the Crown. The fourth matter you must be satisfied about is this, you must be satisfied that the lies were told because the accused man, Mr Martin, knew that the truth of the matter about which he lied would implicate him in the offence. That is the offence of murder. (my emphasis)
You can only draw that inference if you are satisfied that there is no other reasonable hypothesis for the telling of the lie."
He concluded this portion of his charge by stressing the importance that the jury -
" ... bear in mind that there may be many reasons consistent with innocence for the telling of a lie by an accused man, apart from the realisation of guilt or an attempt by him to disguise his guilt."
46 At the prosecution's suggestion, he further directed the jury -
"[HIS HONOUR]: Mr Foreman, ladies and gentlemen, I have just been giving you directions about the point made by the Crown that they contend that the accused man told lies in his record of interview. If I could round it off simply by saying this. You should not, of course, reason simply from the fact that the accused man told a lie that that was evidence of his guilt. You do not reason that simply because he told a lie that is evidence of his guilt."
47 There was, for practical purposes, no issue in the trial concerning whether the deceased had been murdered. The focus of attention was placed upon the question - had the Crown established beyond reasonable doubt that the applicant was a party to the commission of that crime. There was a deal of circumstantial evidence indicating that he would have been present at or close to the time, at which the deceased was killed, and the jury was entitled to conclude that two persons were involved. The lies told by the applicant were material and capable, when considered in context, of not only supporting the inference of consciousness of wrong doing in some general sense, but of involvement in the specific crime of murder. There was, as the trial judge pointed out, no reliance placed upon them by the prosecution in proof of the s.325 offence and it was never suggested by counsel for the applicant in his address to the jury that his client may have lied to conceal his commission of the lesser crime. It is apparent that the trial judge was concerned to avoid unfairness to the applicant and reluctant to introduce into the trial a line of reasoning that he perceived could have impacted adversely to him when no case had been argued against him on that basis and no submissions put in response by the defence.
48 In this Court however the argument was advanced that, notwithstanding the absence of any such reliance, the judge's clearly expressed concern to ensure fairness to the applicant and the considered decision of counsel not to pursue his initial request for the provision of any such instruction, the possibility should have been put before the jury.
49 I am of the view that to conclude that his Honour fell into error in this respect would be unrealistic in the circumstances.
50 The judge made it clear that the jury had to consider the issue of lies only in relation to the count of murder. They had been urged by counsel for the applicant to view them as statements made in the fear of being falsely implicated in the commission of that crime.
51 On any view of the matter, there could be no doubt that the applicant was, at least, aware of what had happened and close enough to the events to have the blood of the deceased on his clothing. One of the possibilities put before the jury by his counsel as to how this may have occurred was that he was engaged in moving the body after the deceased was killed. His Honour drew attention to counsel's submissions on this aspect in his charge. It defies common sense to suggest that the jury were not conscious of that possibility or the possibility that he was, by reason of his physical proximity or the possession of knowledge that he had not divulged concerning the death, afraid of being implicated. In this context, it must be remembered that Petot was asserted to have, in "minutes of mind numbing madness of unmitigated savagery" turned into "a mad homicidal animal." There is no reason
to suppose that the jury would not have directed attention to a range of possible scenarios when considering whether the lies may have been told, perhaps by reason of the presence of fear of being falsely implicated in the crime, fear of Petot or because the applicant had assisted him after the attack.
52 Juries are not to be treated as entirely devoid of experience, understanding of human behaviour or intelligence, as it is the possession of these attributes by twelve people that is regarded as fundamental to the strength of the system operating in our courts. Instructions and warnings are not ritual mantras to be recited whether appropriate or not in every case, but must be directed to the avoidance of the possibility of injustice arising from the existence of circumstances to which they cannot ordinarily be expected to have regard, the presence of dangers of which they may not be aware or where real significance of the circumstances or the risk may not be recognized.
53 There can be no doubt that, in this case, the jury would have well understood what was being urged upon them on behalf of the defence and they can be expected to have applied their combined experience and common sense to the evidence and in their interpretation of it.
54 It follows that, in my view, this ground and consequently the application must fail.
55 I have had the advantage of reading in draft the reasons of Vincent JA. For the reasons that his Honour gives, I agree that leave to appeal against conviction should be refused.
56 I agree that the application for leave to appeal against conviction should be refused and I do so for the reasons advanced by Vincent JA in his judgment.
[1] The determination of this matter has been delayed, awaiting the judgment of the Court of five members in R v Ciantar [2006] VSCA 263 which considered the earlier decision in R v Heyes [2006] VSCA 86; (2006) 12 VR 401 and which it was thought may have affected the position. Counsel were given the opportunity to present further submissions when the judgments in Ciantar were handed down if it was considered necessary. Neither has done so.
[2] The trial was conducted in the Supreme Court sitting at Shepparton and the verdict returned on 21 March 2005.
[3] After hearing a plea in mitigation of penalty, the learned sentencing judge, on 22 April 2005, imposed a term of imprisonment of 18 years, in respect of which a non-parole period of 13 years was fixed.
[4] The police had received complaints that two young men had been observed "playing chicken" with oncoming traffic on the highway near Daish's bridge.
[5] With respect to the use of evidence of a lie as indicating consciousness of guilt, his Honour referred to R v Edwards [1993] HCA 63; (1993) 178 CLR 193, and the application of the principles there enunciated in R v McMahon [2004] VSCA 64; (2004) 8 VR 101; and R v Dung Chi Dang [2004] VSCA 38. There has been no complaint concerning the correctness of his statement of the applicable principles. In relation to the principles to be applied when considering a no-case submission, his Honour referred to May v O'Sullivan [1955] HCA 38; (1955) 92 CLR 654; Zanetti v Hill [1962] HCA 62; (1962) 108 CLR 433; R v Doney [1990] HCA 51; (1990) 171 CLR 207; Attorney-General's Reference (No. 1 of 1983) [1983] VicRp 101; (1983) 2 VR 410; Chamberlain v R (No. 2) [1984] HCA 7; (1984) 153 CLR 521 and R v Cengiz (1998) 3 VR 720. Again, no complaint has been made concerning the correctness of his approach.
[6] Edwards v R [1993] HCA 63; (1993) 178 CLR 193.
[7] There has been no complaint made concerning the correctness or adequacy of these instructions.
R
Martin [2006] VSCA 299
(1993) 178 CLR 193
(2006) 12 VR 401
(2004) 8 VR 101
(1955) 92 CLR 654
(1962) 108 CLR 433
(1990) 171 CLR 207
(1983) 2 VR 410
(1984) 153 CLR 521
(1998) 3 VR 720