R v Mitchell

SUPREME COURT OF QUEENSLAND

CITATION: R v Mitchell [2007] QCA 267

PARTIES: R v MITCHELL, Curtis Lloyd (appellant)

FILE NO/S: CA No 97 of 2007 / SC No 29 of 2007

DIVISION: Court of Appeal

PROCEEDING: Appeal against Conviction

ORIGINATING COURT: Supreme Court at Cairns

DELIVERED ON: 17 August 2007

DELIVERED AT: Brisbane

HEARING DATE: 27 July 2007

JUDGES: Williams and Keane JJA and Mullins J / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER: 1. Allow the appeal / 2. Quash the convictions on all counts / 3. Order a re-trial on all counts

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – OTHERS MATTERS – where appellant convicted of one count of murder and two counts of assault occasioning bodily harm whilst armed with an offensive instrument – where evidence suggested that the appellant had lied – where learned trial judge gave an Edwards direction – whether direction prejudiced the appellant's right to a fair trial – circumstances in which an Edwards direction will be necessary / Edwards v The Queen (1993) 178 CLR 193, considered / R v Brennan [1999] 2 Qd R 529, considered / R v Box & Martin [2001] QCA 272; CA Nos 304 & 307 of 2000, 20 July 2001, considered / R v Chevathen & Dorrick (2001) 122 A Crim R 441, [2001] QCA 337, cited / R v Taylor, unreported, Court of Appeal of England and Wales, No 9703549/W2; 12 May 1998, considered / R v Wehlow (2001) 122 A Crim R 63; [2001] QCA 193, considered / Zoneff v The Queen (2000) 200 CLR 234, considered

COUNSEL: J R Hunter for the appellant / R G Martin SC for the respondent

SOLICITORS: Legal Aid Queensland for the appellant / Director of Public Prosecutions (Queensland) for the respondent

WILLIAMS JA: The appellant was convicted after a trial of one count of murder and two counts of assault occasioning bodily harm whilst armed with an offensive instrument. He appeals against those convictions, principally relying on the submission that the summing up by the learned trial judge on the topic of lies prejudiced his fair trial.

As at 10 April 2004, Easter Saturday, the appellant lived in a house in Atherton with his de facto wife Vandra Diamond, his daughter Amelia, a man named Hudson and the deceased, David Rolley. On the following morning Rolley was found dead, slumped against a wall inside the house. He had suffered significant head injuries. An analysis of the deceased's blood and urine established he was significantly affected by alcohol at the time of his death.

There was evidence from Hudson and Diamond that each of them and Rolley had been drinking in the house on the afternoon and evening of 10 April. At some stage the three moved into the deceased's bedroom to watch tv. There was some evidence that the door to that room was then locked. The appellant had been drinking with that group of three in the afternoon, but sometime "after dark" he left saying he wanted to go to his mother's place.

The evidence is rather confusing as to what transpired later in the evening when the appellant returned to the house. The preponderance of evidence would suggest that the appellant became angry on finding the door to the deceased's bedroom locked and the other three persons inside; that would appear to be confirmed by the evidence of Janet and Jason Mitchell. Janet Mitchell gave evidence she saw the appellant hit Diamond on the head with a piece of wood. There is also conflicting evidence as to the appellant's state of sobriety at that time. He claimed in evidence that he was extremely drunk, whereas there was other evidence suggesting he was not heavily intoxicated when he returned to the house.

Critically for present purposes it is sufficient to say, according to the evidence of Hudson and Diamond, the appellant savagely attacked each of the other three persons using a didgeridoo and a stick. Blood from each of those three persons was found on the damaged didgeridoo.

There was evidence from Hudson that the appellant first struck Diamond over the head with the didgeridoo, then hit the deceased and Hudson with it. Although it was established under cross-examination that Hudson had given substantially different versions on a number of occasions, the jury was clearly entitled to conclude, given supporting evidence from independent sources, that his evidence as to the appellant assaulting each of the three should be accepted.

It appears that Hudson went to sleep after the incident and on being awoken the following morning found Rolley dead and that he also was injured. After the police were called Hudson was taken to hospital suffering from head injuries. It also appears that Diamond suffered some injuries to her head and arm. When she awoke the following morning she was in the same bed as the appellant. Diamond gave evidence substantially in accordance with that given by Hudson, but again under cross-examination it was established that she had given other versions as to what happened.

It is clear that Hudson and Diamond were intoxicated on the night in question and that obviously affected their recollections of events.

The appellant maintained that he was not responsible for the attack on any of the three persons. He was interviewed by police on 11 April. In the course of that statement he said:

"…When I got home I didn't notice anyone outside.

When I got home and when I went up the front stairs near Simon's toilet and back door. I went inside the front door and I didn't turn any lights on until I got to my bedroom and I turned the light on. I looked back in towards the lounge and I seen a little bit of blood on the floor in the hall. At least I think it was blood.

I seen a bit of blood but I was blind drunk. I seen little spots and that but it didn't click to me. The blood was on the carpet in the lounge near the wall closest to the centre of the house. I didn't take much notice of how much blood there was and the stage I was in after the party I just wanted to got to bed. So I locked the door and went to bed straight away.

…

When I got home I didn't see anybody and I went straight to bed."

A little earlier in that statement he said that he did not get "home until 2ish this morning. It might have been 3 when I got home, I don't remember the time."

The appellant gave evidence at his trial and also called a witness, Geerlings. Apparently the appellant had met Geerlings in prison and as a result of some things he told the appellant he was called to give evidence. Geerlings' evidence was to the effect that Diamond told him that she had used "black magic" on the appellant and that she, Diamond, had in fact killed the deceased. He said he did not tell anyone about it until after he was in prison.

The appellant's evidence was substantially in accord with his statement to the police. He came home very intoxicated, and his memory of events was vague. Indeed it has to be said that his evidence was not as specific as was his statement to police. On being awoken the following morning he went and checked on the deceased. He was drawn to the attention of the deceased by Amelia. He could not find a pulse on the deceased and decided to call an ambulance. He said that he had no recollection as to how the deceased and Hudson received the injuries he saw that morning. He said that he was not to blame in any way for what happened. He explained the bloodstains on his clothing by reason of his attempts to rouse the deceased during the events of the morning of 11 April. He also admitted he did not ask anyone what had happened to occasion the injuries to the deceased and Hudson.

The appellant was extensively cross-examined but it is not necessary to refer to any specific parts of that.

It is immediately obvious that much of what the appellant said to investigating police and then in his evidence was inconsistent with evidence from Hudson, Diamond and others as to the events on the night in question. It is sufficient to say that the evidence of Hudson and Diamond was supported in a number of significant respects by independent witnesses. For example, there was the evidence from Janet and Jason Mitchell, and evidence from a security guard as to hearing what was undoubtedly the violence in question at about 11.00 pm. The jury could well have concluded that the appellant's version of events, particularly his claim that he was not involved in the attack on each of the three, was a lie.

At the close of the prosecution case, but before the appellant was called upon, the trial judge asked the prosecutor whether he wanted "an Edwards direction". The response of the prosecutor was as follows:

"I think your Honour might be obliged to give one. I don't ask lightly for Edwards directions because they tend to be confusing and they often seem to lead to appeal …".

To that the trial judge responded: "… the jury might conclude that what the accused said in his statement about what happened when he returned home isn't true." The prosecutor then said: "That's why I think I say, your Honour, I think I'm probably obliged to request an Edwards direction as much as I find them problematic". Counsel for the appellant then indicated he had not considered that question.

That issue was not re-visited after the appellant had given evidence and been cross-examined; nor was it raised again after addresses.

Counsel for the appellant addressed the jury first. In the course of his address he said:

"You heard a number of different accounts of what happened. Some of them, as you are aware, are quite contradictory; a lot of very different accounts. … So the four players in this matter were all exceedingly drunk. …

…

…And if you really can't work out what happened, that is how the three complainants actually suffered their injuries, then surely you can't be satisfied of his guilt beyond reasonable doubt in relation to any of the charges. …

…

…Apart from what they [Hudson and Diamond] say there is no evidence that it was Curtis [the appellant] who inflicted the various injuries. As I said, mere suspicion is not enough.

…

…There is no direct or, I say, indirect evidence that Curtis actually inflicted all these injuries. It hasn't been proved, I suggest, to your satisfaction what really happened.

…

Curtis Mitchell made a statement to the police. This was taken on Sunday morning when he must have a dreadful hangover. …

…

[H]e gave his statement to the police while he was still in throes of a dreadful hangover so the statement is not unreasonable for that sort of a thing. …

…

So in my submission the prosecution have not proved that Curtis Mitchell inflicted any of the wounds suffered by the complainants."

The Crown Prosecutor in his address to the jury did refer to the inconsistencies between the evidence of the appellant and that given by other witnesses. The following are relevant passages from that address:

"And I suppose that's the problem when people start trying to you know, to – to fabricate a story, to defeat the facts. You can make it fit some of them, but I'd suggest it is not possible to come up with a – a false story which fits all the facts because there's always got to be something that doesn't fit because you've changed an integral part of it to get your false story.

…

Now what is interesting, ladies and gentlemen, is that with Curtis Mitchell, he says he can't remember. Now he's willing to accept the evidence of his mother and his nephew when they say they took him home, but he's not prepared to accept when they say he was banging on the door, that he was arguing and that he went into the room with what must have been a stick, and what I suggest is the most damming is that in her police statement, Janet Mitchell says she saw him hit Vandra on the head with the wood. …

…

…I suggest to you that he [the appellant] was doing was just putting himself out of the frame.

…

…Mitchell's account, his evidence today was frankly, absurd I'd submit.

Now, as I say, …he's got the – the bit right, 'oh, I was so drunk I didn't know what was happening', and he's got to – see, he's got to explain, you might think, how he could've walked into that house without realising anything was wrong.

…

…when you try and fabricate something that there's always something that doesn't quite fit – the picture. And the – the picture is that Vandra could not have got into the room, could she, if the door was locked?

…

…I submit to you that when you look at all of this evidence, that the only rational explanation for it is that Curtis Mitchell struck blows to the heads of each of the three victims in this case. And I think I've largely explained to you the reasons for that contention…, firstly, that really, as incomprehensible as it seems, he would appear to be the only one of the four who had a motive to hit all three of them. Second, that you've got a really close physical connection between the three assaults…. You have the blood of all three victims on one weapon and you have the blood of all three victims on one person's clothing. …

I suggest to you … really that what Mr Mitchell has done is really looked at that body of evidence and said, okay, how can I explain it, and has got in the witness box and has sought to do it. I suggest there are really three planks in that approach. The first one is to simply paint Vandra as the villain…

…

…essentially the second plank in Mitchell's approach to this is, I was so drunk I don't know anything and I couldn't have done anything.…

…the other plank is the notion that he changed his clothes in the morning. …"

The passages from the addresses indicate what the prosecution and defence saw as the issues for the jury. The prosecution case was particularly strong. It was against that background that the learned trial judge came to sum up. Intent to kill or cause grievous bodily harm was an essential element of the charge of murder. Because of that the appellant's state of intoxication was a significant matter for the jury to consider. Was his state of intoxication such that he was incapable of forming the requisite intention? Relevantly in relation to that the learned judge said in his summing up:

"You have also the point that the accused gave evidence that Rolley was a friend of his. He had no motive, no reason for harming him. You might think that is evidence you could accept, and if in fact you are satisfied that the accused took to Rolley with what was in effect a club you might wonder whether that behaviour is explicable only by severe intoxication. These are questions for you to consider."

Later in the summing up comes the passage which gives rise to the argument on the hearing of this appeal. The summing up got to the stage where the judge was summarising the prosecutor's submissions to the jury. After expressly stating that was what he was doing, some two paragraphs later the following passage began:

"He asks you not to believe the accused when he gave evidence here. He submits that the accused has given what is in effect a fabrication; he told you untruths. Particularly, he says about the hour of his arrival home and what he observed when he came home and particularly did not observe … [The prosecutor], you will remember his argument, submitted that the accused had been obliged to change his story to account for the fact that he said, when he came home, Vandra Diamond was not in the bedroom but she was there in the morning and she could not have of course have been there if he had locked the door.

Now these are matters for you, but there is a point I must instruct you on and it concerns lies told by an accused. Now, what I'm about to say is only of any relevance to you if you are satisfied that the accused has told lies when he gave evidence here; and the lies, if you accept they were told, concern his manner of arrival back at the house. [The trial judge then quoted the passage from the appellant's statement to police as to what he saw and did on arrival home that evening.]

Now that account, you understand, differs from what Janet Mitchell said and what Jason Mitchell said in their statements to the police. What you accept is a matter for you, but if you are satisfied that what the accused said in that statement about his arrival home and what he observed is a lie, then it may have a significance.

A lie told by an accused person may be relevant in two ways. A jury if satisfied that an accused has told lies might be reluctant to accept as truthful anything the accused put forward by way of explanation or defence. In other words, a lie may lead a jury to reject what an accused has had to say.

The second way in which a lie can be relevant is that in certain circumstances the lie may amount to an admission of guilt or to an admission that the accused was involved in the commission of the offence with which he is charged. The lie in this sort of case has the opposite effect to what was intended. Instead of exonerating an accused from implication in the commission of the offence which is what the lie was meant to achieve, it has the opposite effect and amounts to an admission that the accused committed the offence. A lie can have this second effect only if it is told because the truth would implicate the accused in the commission of the offence. The lie must reveal a knowledge of the offence and it must be told because the accused knew the truth of the matter about which he lied, would implicate him in the commission of the offence.

Now, people of course tell lies for a variety of reasons. Sometimes people lie because of panic when confronted with a serious accusation, or they may lie to bolster an explanation of innocence which they actually have, or they may lie for some reason unconnected with the offence. If some reason such as these explains why the accused lied, if you are satisfied that he did lie, then the lie cannot amount to an admission. You may be tempted to think that because the accused lied he must be guilty. That is an improper means of reasoning. Lies can be relevant only in the two respects I have mentioned. They can be relevant only in the second respect if the lie is of the type I have described, that is, it must be told because the truth would implicate the accused in the killing of Rolley. It is only if this reason, the one I have just mentioned, is the only reason for the lie in question that it can be taken into account as an implied admission of guilt. As well, a lie to be used for this purpose must be deliberate. It must be a conscious, deliberate statement of fact.

A statement which is wrong in fact but which was made as a result of a mistake or confusion or a recollection made faulty by intoxication cannot constitute a lie.

The lie must also be about what is called a material fact. That is, a fact which would in some way implicate the accused in the death of Rolley and the assaults on Hudson on Diamond.

It comes down to this. You could draw an inference of guilt more readily if you find that the accused lied about his return to the flat because he believed the truth about what happened when he returned would implicate him in the killing and the assaults.

These are [the prosecutor's] last points." (Underlining is my emphasis)

As is inherent in the reasoning of the majority in Edwards v The Queen (1993) 178 CLR 193 it is not in every case where it is established that the accused has told lies relevant to the matters in issue that the jury may regard the telling of those lies as amounting to a confession of guilt. In many, if not most, instances the telling of a lie will be relevant to the accused's credibility and the resultant conclusion that the accused lacks credibility may well be material to the ultimate conclusion of the jury. As the majority pointed out in Edwards at 201 it is only where the prosecution relies on the telling of lies as an admission of guilt that proof beyond reasonable doubt of the lie is required and there is then an onus on the trial judge to direct the jury in accordance with what has been commonly called the Edwards direction.

A reading of the prosecutor's address in this case indicates that the prosecutor did not in terms invite the jury to conclude beyond reasonable doubt that the appellant told lies in connection with his arrival back at the home in the evening in question and that they should then use those lies as an admission of guilt when considering the case against the appellant. Senior counsel for the respondent in this Court submitted that when the prosecutor's address was considered carefully it did raise, at least by implication, the contention that the lies were told out of a consciousness of guilt. Certainly some of the statements from that address quoted above could arguably, but not clearly, carry that implication. If the jury had been told in the course of the summing up that the lies were relevant only to the appellant's credibility, the words used by the prosecutor could not have been taken by a reasonable juror to be suggesting that there was implicit in the lies told an admission of guilt. As already noted the reasoning in Edwards itself does not require the direction to be given in all cases where the accused has told lies about material facts. Indeed there are judgments of this Court cautioning judges against giving the Edwards direction except where absolutely necessary. McPherson JA (with the concurrence of Thomas J) said in R v Brennan [1999] 2 Qd R 529 at 530:

"Finally, I wish to enter a caution against the persistent reliance by prosecuting counsel on the phenomenon of lies by the accused as evidence of a consciousness of guilt. As was decided in Edwards v The Queen (citation omitted), the telling of lies is something that in some instances is capable of being considered as circumstantial evidence amounting to an implied admission of guilt on the part of an accused person; but the directions needed in order to correctly explain the conditions in which it is available for that purpose are convoluted and not at all easy for a judge to give, or for a jury to understand. The result often is to obscure rather than to simplify the issue to be determined. That is particularly so in a case where, like this, the accused gave one account in his evidence at the trial, after having given another and contradictory statement at an earlier time. In circumstances like that, the prior inconsistent statement simply forms a basis for doubting the credibility of his testimony at trial."

That passage was referred to with approval by this Court in R v Chevathen (2001) 122 A Crim R 441 at 446.

If further authority is needed it is to be found in the judgment of the majority in Zoneff v The Queen (2000) 200 CLR 234 at 244-5 where it was said:

"This was an unusual case. The prosecutor did not, during cross-examination, in terms, or in our view, by implication, suggest that any answer given was a lie, told out of consciousness of guilt (a phrase we use for convenience). Moreover, as the prosecutor did not address the jury, no such suggestion was made at any later stage of the trial.

In this Court the respondent prosecutor reiterates that no reliance was, in the courts below, or is here, placed upon the answers given to found a submission that the appellant lied, out of a consciousness of guilt.

It follows in our opinion that it was unnecessary, indeed undesirable, that a direction of the kind with which Edwards was concerned be given in the circumstances of this case. In order to give it in this case the trial judge would have had to decide which of the appellant's answers were or were not capable of being regarded as lies indicative of a consciousness of guilt. Such a direction here could have had the effect of raising an issue or issues upon which the parties were not joined, and of highlighting issues of credibility so as to give them an undeserved prominence in the jury's mind to the prejudice of the appellant."

Because of all that I am of the view that the Edwards direction ought not to have been given. In the circumstances a reasonable juror may well have considered that the trial judge, with his authority, was indicating to them by giving the Edwards direction that they could find an admission of guilt on the part of the appellant though the prosecutor had not contended that any such admission was made. In that way the appellant was seriously prejudiced by what was said in the summing up.

In both Edwards and Zoneff the expression was used that the lie might implicate the accused in the "offence with which he is charged". Those words were apt in the factual circumstances then under consideration; essentially there was no alternative charge. But there is a complication where, as here, the offence charged is murder but there is the lesser offence of manslaughter available. In consequence it is of critical importance to identify what is in issue at the trial and what precise admission is established by the lie. If the accused admits doing the act which occasioned the death, the relevant consciousness of guilt must be to the offence of murder rather than manslaughter. Where the accused denies causing the death (say, for example, by giving evidence he was not at the scene) consciousness of guilt could be relevant to two elements of the offence. The lie could in the circumstances be relied on by the jury as an admission that the accused did the act which caused death. That would, at least, establish the offence of manslaughter. But it may be that, given all of the evidence in the case, the lies told by the accused could also amount to an admission of guilt to murder. What is important in that latter situation is that the summing up draw to the attention of the jury the fact that there are two elements involved and that the jury would have to be satisfied that the lie constituted an admission of each element before a verdict of guilty of murder could be returned.

In R v Wehlow (2001) 122 A Crim R 63 this Court had to consider an Edwards-type direction given in a trial for murder where the defence admitted there was an unlawful killing but asserted there was no relevant intent because the offender was intoxicated. As was recorded in the reasons for judgment of Wilson J therein at p 67 the prosecution contention before the jury was as follows:

"The thrust of his submission to the jury was that the appellant had woven a web of deceit about her killing the deceased; that she could not have done so had she not had a clear recollection of what had actually taken place; and that the fact of her having such a clear recollection was inconsistent with her having been so intoxicated that she had not formed the intent to kill or inflict grievous bodily harm."

In those circumstances it was held not to have been erroneous for the trial judge to have given an Edwards direction and that in the circumstances it was open to the jury to conclude that the lies constituted an admission of guilt to murder which negated the defence contention of intoxication. That approach was reiterated by McMurdo P in R v Box & Martin [2001] QCA 272 where she said at [7]:

"In giving such a direction, it is imperative that the judge make it sufficiently clear to the jury that the lies were told out of a realisation that the truth would implicate the appellant in the offence of murder rather than something less, such as manslaughter or accessory after the fact to murder: see R v Wehlow and R v Richens (1993) 4 All ER 877."

To similar effect are statements in R v Ali [2001] QCA 331. McMurdo P at [3] reiterated what she had said earlier in R v Box & Martin. Thomas JA at [43] said:

"This area of the law defies strict logical analysis. The term 'consciousness of guilt' or 'realisation of guilt and a fear of the truth' remains an accepted rationale for a direction on this topic, although some of the problems associated with it have been recognised. The problem that has been raised arises where several offences have been committed and the lie is equally explicable by consciousness of guilt of the lesser offence. Usually in such a case it is necessary that this possibility be pointed out to the jury…. However I do not think that it is always necessary to direct that a lie may be used only to support guilt upon the least of the options available. Obviously each case must depend upon its own facts and circumstances. In the present case I think it was proper to leave the interpretation of these lies open to the jury as capable of supporting guilt on the appellant's part on all or any of these offences."

A similar approach has been adopted in England. In R v Taylor (Unreported, Court of Appeal of England and Wales, No 9703549/W2; 12 May 1998) Lord Justice Rose speaking on behalf of the Court of Criminal Appeal said:

"As Lord Taylor pointed out in Richens, it would be necessary for the jury's attention to be concentrated on the question of whether the telling of lies was inconsistent with his case that he had killed as a result of provocation rather than being left as, in our judgment this jury was, with a general direction about lies in relation to the connection between the defendant and the deceased's death. In our judgment it was necessary, in the circumstances of this case, for the learned judge to give a further direction in addition to the impeccable direction which he gave, in the passage to which we have referred. He should also have said that lies could support the prosecution case of murder only if the jury were sure that such lies as they were considering were told to conceal the fact that he had murdered the deceased, rather than merely to conceal his connection with the death."

For Australia the last sentence should be modified to read: "only if the jury were satisfied beyond reasonable doubt that such lies …"

It follows, in my view, that where, as here, murder is the offence charged and manslaughter is available as an alternative verdict, it is incumbent upon the trial judge, if an Edwards direction is given, to indicate the element of the offence that is said to be admitted by the telling of the lie in question. If that element is merely the implication of the accused in the killing then the jury should be instructed that the admission is so limited. If the admission is said to establish the element of intent then the jury should be so instructed and they should be warned that they ought not simply infer from the fact that the accused was implicated in the killing that he had the requisite intention.

In quoting from the summing up in this case I have underlined certain expressions used by the trial judge which, in my view, are of critical importance. In the fifth paragraph of the quote the expression "offence with which he is charged" was used, and that was followed by a reference in that paragraph on four occasions to "the offence". The offence with which the appellant was charged was murder and on hearing that direction the jury would have understood, or at least could well have understood, the judge to be saying that they could treat the lies told as an admission of guilt to murder. He did not draw to their attention any circumstances in the evidence, or about the way in which the lie was told, which could implicate the appellant in the offence of murder rather than manslaughter.

In the subsequent paragraph the judge referred to the lies being told because the truth would "implicate the accused in the killing of Rolley". Counsel for the respondent in this Court relied heavily on that statement, and on the two subsequent occasions when the expression implicate in the death or killing of Rolley was used. But in my view that submission loses much of its effect when it is realised that the prior emphasis had been upon the offence with which the appellant was charged. It is doubtful whether a juror would have appreciated the subtle change of emphasis. That is particularly so when on the last two occasions the expression used was "implicate the accused in the death/killing and the assaults"; the assaults were the second and third charges on the indictment and, if anything, that again tended to suggest that the admission had to be with respect to the offence with which the appellant was charged.

Because of those deficiencies in the direction, given the particular circumstances of this case, even if it was appropriate to give an Edwards direction, it was so defective that it was misleading and prejudicial.

Though the case against the appellant was an extremely strong one this is not an appropriate case in which to apply the proviso. As the trial judge himself recognised in the summing up, the killing was without motive or reason and for that reason alone the jury had to consider whether the appellant's "behaviour is explicable only by severe intoxication". If that were so then the appropriate verdict would be manslaughter.

It follows that there has to be a re-trial.

Since writing the above I have read the reasons for judgment of Keane JA in which he has referred to a number of other cases. I agree with all that Keane JA has said.

The orders of the court should be:

Allow the appeal;

Quash the convictions on all counts;

Order a re-trial on all counts.

KEANE JA: I have had the advantage of reading the reasons of Williams JA. I agree with his Honour's reasons.

Having regard to the case presented by the Crown, this was not a case in which the learned trial judge should have given an Edwards¹ direction to the jury. The effect of that direction was to suggest a basis for reaching a finding of guilt of murder for which the Crown had not contended.²

I also agree with the reasons of Williams JA upholding the second ground of appeal, namely, that, if an Edwards direction were properly given, the learned trial judge erred in failing to instruct the jury that lies told by the appellant might show a consciousness of guilt with respect to the unlawful killing of the deceased, but not necessarily murder. I wish to make some brief additional remarks to acknowledge the high quality of the arguments presented to the Court on this issue by Mr Hunter of Counsel for the appellant and Mr Martin SC for the respondent.

The appellant's version of his return home on the night of the offences was that he had no involvement at all with the violence which occurred on the Saturday night, even though he did not seek an explanation for the scene of devastation which greeted him when he woke up on the Sunday morning. In this context, it might have been argued by the Crown (although I agree with Williams JA that the learned Crown Prosecutor at trial was not disposed to argue) that the appellant lied about the circumstances of his return home, and that the telling of the lie was explicable only on the basis that the truth, viz, that he had returned home before blood had been spilt, would have implicated him in the offences with which he was charged as the likely perpetrator of the attacks which had undeniably occurred in his house upon the other occupants. In these circumstances, it would have been fairly open to the Crown to contend that the appellant's version of his return home was a lie deliberately told because he was conscious that "if he [told] the truth, the truth [would] convict him"³ of one or more of the offences with which he had been charged.

It was also, I think, fairly arguable that the appellant's consciousness of guilt included a guilty awareness on the appellant's part inconsistent with a partial defence under s 28(3) of the Criminal Code. As to whether the appellant's lies were relevant to the related issues of intent to kill or cause grievous bodily harm and intoxication, the appellant did not tell the police that he had no idea at all what had happened; he told a story the effect of which was that he knew that blood had been spilt, but that he had not been at home when that happened. The appellant's story was that blood was spilt before he returned home. That story, false as it was, together with the other evidence, tended to establish that the appellant was the perpetrator of the violence. But it went further, tending to show that the appellant had a recollection of events on the night in question. That he claimed a recollection of the situation when he came home might be regarded by a jury as inconsistent with a state of intoxication sufficient to negative an intent either to kill or to cause grievous bodily harm. The probative value of the appellant's lie might have been slight in relation to the issue of intoxication and one can well understand the decision of the Crown Prosecutor at trial to refrain from relying on the lie as probative of guilt; but if the Crown Prosecutor had sought to rely upon the lie the weight of the evidence was a matter for the jury so long as it was possible to ensure by appropriate directions by the trial judge that the prejudicial effect of the evidence is not allowed to exceed its probative value.

The classic statement of the position, so far as the law in Queensland is concerned, is to be found in the statement of Gibbs J in R v May.⁴ There, his Honour, speaking of the relevance of a false denial in a case involving a charge of rape, said:

"The explanation for his false denials may have been his wish to conceal his participation in an indecent assault upon the complainant rather than to disguise the commission of a rape. This however seems to me to go to the weight of the evidence, rather than to the question whether it is legally corroborative. The denial if accepted to be false, is confirmatory of the evidence of the complainant that she was taken to Lota Creek for an unlawful purpose, and it was not wrong for the trial judge to direct the jury that it could be treated as corroborative.

However, for the reasons I have given, I consider that the weight of the evidence of the false denial, as corroboration of the complainant's evidence that she was raped, was very slight. In the exercise of his discretion the learned trial judge might well have decided that he would not direct the jury that this evidence could be treated as corroborative, but, since he left it to them, 'it was highly necessary to warn them against pressing the matter too far'. (R v O'Brien (No 1) ([1931] St R Qd 158 at pp 163-4).) They should have been warned that, although its weight was for them, they should recognise the dangers of placing too much reliance on it in relation to the charge of rape, and that, since the false denial might have been made because the appellant feared that he might be implicated in an offence less serious than rape, they should consider it with caution before they treated it as corroborative of the evidence that rape had occurred."

More recently, the High Court, in Zoneff v The Queen,⁵ confirmed that it is for the jury "to decide what significance those suggested lies have in relation to the issues in the case".

In the present case, the evidence of the lie was arguably explicable as showing more than a consciousness of guilt of attacks upon the complainants and the deceased. The probative value of the evidence on the issue of intoxication may not have been strong but it was sufficient for its strength to be regarded as a matter for the jury. Where a lie arguably bespeaks a level of awareness inconsistent with intoxication such as might negative the intent to kill or to do grievous bodily harm, the "interpretation of the lie" is a matter for the jury. The first submission made on the appellant's behalf must be rejected.

Mr Hunter argued that the learned trial judge did not sufficiently warn the jury to differentiate between the offences in which the appellant's lie might implicate him. One of the arguments advanced by Mr Martin SC was that, in truth, the learned trial judge's direction to the jury "restricted the significance of the lies to the preliminary issue of manslaughter". That was said to be because the learned trial judge in his directions to the jury in relation to the elements of the offences of manslaughter and murder had carefully distinguished between manslaughter and murder, so that the jury would necessarily have understood the direction as to the legitimate use of lies as being concerned only with manslaughter. In this regard, Mr Martin pointed to his Honour's directions to the jury that:

"a person who unlawfully kills another is guilty of a crime, which is called murder or manslaughter according to the circumstances … As I have mentioned … unlawful killing is a crime but it may not be murder. It will be either murder or manslaughter depending on the circumstances of the case. Manslaughter is the offence which is committed when one person kills another but does not intend to kill or to cause grievous bodily harm."

I agree with Williams JA that Mr Martin's argument on this point should not be accepted. One cannot be at all confident that when the learned trial judge spoke of "the killing" in the course of his direction on lies, the jury would have understood him as focussing solely on the "unlawful killing" simpliciter, being manslaughter, by impliedly excluding reference to the "killing" which is an element of murder. Lawyers are rightly wary of the maxims expressio unius, exclusio alterius and expressum facit cessare tacitum (an express statement upon a given subject excludes any further implied statement) even when they are invoked to interpret the words of a contract or of an Act of Parliament.⁶ There is all the more reason to be sceptical that a jury will be astute to apply the idea expressed in these maxims with the discernment of a trained lawyer to directions by a trial judge. Most importantly, however, the directions about lies set out above were given in the course of a discussion of the Crown's case in respect of murder. It is unlikely that the jury would have understood these directions to have been concerned with any offence other than murder. Accordingly, I agree that the directions to the jury were not sufficient even if it had been appropriate for the learned trial judge to give an Edwards direction.

In my respectful opinion, it is necessary for a trial judge to ensure that the jury clearly understand that they may use evidence of a lie by an accused as an indication of a consciousness of guilt of murder only if they are satisfied that the lie was not told out of a consciousness of guilt of some lesser offence, such as manslaughter, or, indeed, assaults occasioning bodily harm. In R v Wehlow,⁷ McMurdo P and Wilson J (Williams JA expressly not deciding the point) held that it was necessary precisely to identify for the jury the offence, guilt of which was said to be reflected in the accused's lie. In my respectful opinion, that approach, which conforms to that taken in R v May, is correct and should be followed. The requisite level of precision was absent here.

In R v Ali,⁸ Thomas JA (with whom McMurdo P and Davies JA agreed) said:

"… The term 'consciousness of guilt' or 'realisation of guilt and a fear of the truth' (Edwards v The Queen above at 211) remains an accepted rationale for a direction on this topic, although some of the problems associated with it have been recognised (Zoneff v The Queen (2000) 200 CLR 234, 244 at para 15). The problem that has been raised arises when several offences have been committed and the lie is equally explicable by consciousness of guilt of the lesser offence. Usually in such a case it is necessary that this possibility be pointed out to the jury, and in each of R v May, R v M and R v R it was held that the failure to do so amounted to an error. However I do not think that it is always necessary to direct that a lie may be used only to support guilt upon the least of the options available. Obviously each case must depend upon its own facts and circumstances. In the present case I think it was proper to leave the interpretation of these lies open to the jury as capable of supporting guilt on the appellant’s part on all or any of these offences."

The effect of these decisions of this Court may, I think, be summarised in the following way: while it is for the jury to determine whether the circumstances are such that a lie can be said to be understood as revealing a consciousness of guilt of the greater offence, where the false statement is capable of amounting to an acknowledgment of guilt of one or more of several offences with which the accused stands charged, it is necessary for the trial judge to point out to the jury the possibility that the consciousness of guilt revealed by the lie relates to the lesser offence. The position has been stated in similar terms in the Victorian Court of Criminal Appeal and Court of Appeal in R v Woolley⁹ and in R v Ciantar¹⁰ respectively. This statement of the position is also in conformity with the decision of the Court of Criminal Appeal of Western Australia in Banks v The Queen.¹¹

In R v Ciantar, issues were fully canvassed at considerable length by a five member Court of Appeal. It is unnecessary to set out the relevant passages from R v Ciantar. Mr Martin was content to adopt those parts of the Victorian Court of Appeal's judgment which support the proposition that lies may in some cases tend to prove, not merely the occurrence of unlawful conduct not involving any mental element, but also an offence involving specific mental element. Mr Martin was not, however, content to accept the need, where lies are relied upon by the Crown as proof of guilt of the "greater crime", for a warning alerting the jury to the possibility that the lies reflect a consciousness of guilt of only the "lesser" offence.

On this issue, Mr Martin argued that, once a jury has been warned generally that there may be many reasons to lie other than because of a consciousness of guilt, there is no need for any further instruction. Mr Martin's submission was that a lie probative of guilt is a piece of circumstantial evidence, which, like any other piece of circumstantial evidence, must be weighed by the jury: there is nothing about the lie probative of guilt which calls for a further judicial warning.

In my respectful opinion, this submission is inconsistent with the statements in the authorities to which I have referred. Importantly, it is contrary to the longstanding authority of the clear statement of principle by Gibbs J in R v May set out above. It is also contrary to the decision of the Court of Appeal of England and Wales in R v Taylor.¹²

The risk recognised in these authorities, namely, that an accused will be unfairly prejudiced by a lie which may be probative of guilt, but of little weight, is sufficiently serious to afford good reason to decline Mr Martin's invitation to depart from the statements in the authorities to which I have referred which require a clear direction of the kind referred to in R v Wehlow and R v Ali.

I am respectfully in agreement with Williams JA that the direction given by the learned trial judge was not sufficient to alert the jury to consider whether the appellant's lie was told because of a consciousness of guilt for the assaults upon the complainants and the deceased. While the "interpretation" of the appellant's lie about the circumstances of his return home could properly be left to the jury, the circumstances of the case were such as to require a direction that the jury consider carefully whether the appellant's lie was explicable by a consciousness of guilt in respect of the assaults upon the complainants and the deceased, or the killing of the deceased or the intended killing of the deceased.

Mr Martin argues that this was an overwhelming case of murder so that this Court should sustain the conviction pursuant to s 668E(1A) of the Criminal Code on the footing that no substantial miscarriage of justice has occurred. In this regard, Mr Martin points to the evidence of brutal and persistent assault as powerful evidence of intention to kill or to cause grievous bodily harm. But, on the other hand, in two of the assaults, that intention was not carried out. Indeed, in those cases, grievous bodily harm was not inflicted.

There was a real possibility that the killing had been unintentional because the appellant was intoxicated. The appellant asserted that he was "blind drunk", and, supporting this assertion, there was other evidence that the appellant had been drinking. Although the issue of intent to kill must not be confused with questions about motive to kill, it must also be said that there was no evident reason why the appellant might have wanted to harm the deceased. The absence of motive could well have been regarded by the jury as an indication that the appellant was heavily intoxicated when he attacked the deceased and the complainants. This circumstance adds force to the hypothesis that the killing or the infliction of grievous bodily harm on the deceased was unintentional.

On the whole of the record, I am unable to conclude that it is clear beyond reasonable doubt that the appellant's killing of the deceased was intentional. There must be a new trial in that regard.

I agree with the orders proposed by Williams JA.

MULLINS J: I agree with Williams and Keane JJA.

Footnotes

1. See Edwards v The Queen (1993) 178 CLR 193. ↩

2. Cf Zoneff v The Queen (2000) 200 CLR 234 at 244 – 245. ↩

3. R v Tripodi [1961] VR 186 at 193; Edwards v The Queen (1993) 178 CLR 193 at 209. ↩

4. [1962] Qd R 456 at 462 – 463. ↩

5. (2000) 200 CLR 234 at 245 [23]. ↩

6. Colquhoun v Brooks (1888) 21 QBD 52 at 65; Houssein v Under Secretary of Industrial Relations (1982) 148 CLR 88 at 95. ↩

7. (2001) 122 A Crim R 63 at 64 [5] and 69 [33]. ↩

8. [2001] QCA 331 at [43] (citations footnoted in original). ↩

9. (1989) 42 A Crim R 418 at 423 – 424. ↩

10. (2006) 16 VR 26 at [65] – [78]. ↩

11. [2003] WASCA 198 at [45] – [68], [85], [116] – [120] but see Martinez v State of Western Australia (2007) 172 A Crim R 389. ↩

12. Unreported, Court of Appeal of England and Wales, No 9703549/W2, 12 May 1998. ↩