The test to be applied in determining the application
80It is open to me to direct a verdict of not guilty only if I come to the conclusion that there is a defect in the evidence such that, taken at its highest, the evidence will not support a verdict of guilty. In Doney v R (1990) 171 CLR 207 the High Court stated the principle in this way (at 214):
"It follows that, if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations, and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at it s highest, it will not sustain a verdict of guilty."
81It will be evident from the matters to which I have already referred that the Crown case against the accused is a circumstantial one. However the fact that at this stage of the proceedings there may be competing hypotheses or inferences available does not mean that I should direct a verdict of not guilty. It is not open to me to direct a verdict of not guilty on the basis that inferences other than those advanced by the Crown might be open: R v JMR (1991) 57 A Crim R 39. In Saffron v Director of Public Prosecutions; Allen v Director of Public Prosecutions (1989) 16 NSWLR 397 Gleeson CJ explained the matter in this way (at 401):
"It is a corollary of the fundamental principle that the prosecution carries the onus of proof of guilt beyond reasonable doubt that a jury cannot convict on the basis of circumstantial evidence unless no other explanation than guilt is reasonably compatible with the circumstances: Plomp v The Queen (1963) 110 CLR 234 and Chamberlain v The Queen [No 2] (1984) 153 CLR 521. It does not follow, however, that simply because it is possible, looking at the objective circumstances established by the evidence in a case, to construct a hypothesis consistent with the innocence of the accused, the case is not one fit to go to a jury. That entirely overlooks the role of the jury in a criminal trial."
82His Honour observed that the various matters to which he had referred had been emphasised in Attorney-General's Reference (No 1 of 1983) [1983] 2 VR 410 where the Court (Young CJ, Anderson and Gobbo JJ) said (at 415-416):
"The question whether the Crown has ultimately excluded every reasonable hypothesis consistent with innocence is a question of fact for the jury and therefore, if the Crown has led evidence upon which the accused could be convicted a trial judge should not rule that there is no case to answer or direct the jury to acquit simply because he thinks that there could be formulated a reasonable hypothesis consistent with innocence of the accused which the Crown has failed to exclude. Similarly a trial judge should not rule that there is no case for the accused to answer because he has formed the view that, if the decision on the facts were his and not the jury's, he would entertain a reasonable doubt as to the guilt of the accused. It is always a question for the jury whether a reasonable doubt exists as to the guilt of the accused and as Menzies J explained in Plomp's Case, in a case based on circumstantial evidence, the necessity to exclude reasonable hypotheses consistent with innocence is no more than an application to that class of case of the requirement that the case be proved beyond reasonable doubt" (emphasis in original).
83It follows that if the evidence adduced by the Crown is capable of proving each of the elements of each offence beyond reasonable doubt, then the matter should be left to the jury for determination (see R v Bilick and Starke (1984) 36 SASR 321; 11 A Crim R 452). In determining the present application, it is important to consider the evidence as a whole, and not in a piecemeal way (see R v Hillier (2007) 228 CLR 618).
The issue of lies
84Although the evidence must be considered as a whole the Crown relies, as part of its circumstantial case, upon statements made by the accused which are said to amount to lies which constitute evidence of a consciousness of guilt. In that sense, the issue of whether or not statements made by the accused should be so regarded is a discreet one.
85In short, the Crown argues that the statements made by the accused in his interviews to the police, in which he effectively denied knowledge of the deceased, should, in light of his subsequent statements when speaking to his partner, be regarded as lies. The Crown submitted that those statements met the relevant test so as to permit them to be used as evidence of a consciousness of guilt on the part of the accused.
86The general principles concerning the use of lies which were formulated in Edwards v R (1993) 178 CLR 193 and Zoneff v R (2000) 200 CLR 234 were conveniently summarised by Whealy J (as his Honour then was) in R v Lodhi [2006] NSWSC 672 at [24] and following, and again in R v Lane (No. 13) [2010] NSWSC 1540. The latter decision was the subject of an appeal to the Court of Criminal Appeal (see R v Lane [2011] NSWCCA 157) and although the Court found error in Whealy J's application of the relevant principles, I do not understand the members of the Court to have found error in his Honour's statements of the principles themselves. The most fundamental of those principles is that order to be permitted to be used for the purposes of demonstrating a consciousness of guilt, statement(s) relied upon by the Crown as constituting lie(s) must:
(a)be deliberately false;
(b)relate to a material issue; and
(c)be motivated by a realisation of guilt and a fear of the truth.
87The Crown properly pointed out that although some of the authorities speak of a need for caution to be adopted where lies are sought to be relied upon as evidence of a consciousness of guilt, that does not mean that such caution should be adopted in a way which inhibits the Crown from having the benefit of such evidence when that is clearly appropriate (see R v Lane [2011] NSWCCA 157 at [26] per McClellan CJ at CL). Whether it is clearly appropriate in the present case is the question. That question is to be determined according to whether the statements relied upon by the Crown as constituting lies are capable of meeting the three elements of the test set out in [86] above.
88In the decision of the Court of Criminal Appeal in Lane (supra) Simpson J observed (at [60]) that the task of a trial judge in determining whether evidence of lies may be used in the way for which the Crown contends in the present case is to determine whether or not the evidence is capable of meeting the test I have set out. If the evidence is so capable, then the Crown should be permitted to rely upon this evidence as part of its overall circumstantial case. Consistent with those authorities which govern the test that I am required to apply in determining the present application (set out at [80] to [83] above) the fact that there may be inferences available to be drawn from the statements of the accused other than those urged by the Crown does not mean that it is not open to the jury to conclude that one or more of those statements amounts to a lie which is evidence of a consciousness of guilt (see R v Heyde (1990) 20 NSWLR 234 at 244 per Clarke JA (with whom Gleeson CJ and Studdert J agreed).
89Some of the statements made by the accused in his two interviews, and which are relied upon by the Crown as constituting lies, are somewhat vague and equivocal. For example, and bearing in mind that the necessity for any asserted lie to be clearly identified (see Edwards (supra) at 210) I have some doubts about whether anything said by the accused in the first of his interviews amounts to a lie. It is relevant in this regard to note that on that occasion the accused was being asked to recall events which had taken place some 17years earlier.
90However, in light of the statements made by the accused to his partner in the conversation recorded in Exhs. BB 1 and BC 1, I am satisfied that his answers to questions 279, 394, 397 and 418 in the second of his interviews would be capable of being regarded as being deliberately false. Accordingly, the first element of the test is met.
91Further, the statements made by the accused in answer to those questions related to his knowledge of, and contact with, the deceased. That is obviously a material issue. It follows that the second requirement is also met.
92The real issue is whether it would be open to the jury to rationally infer that it was a consciousness of guilt which motivated the accused to make the statements in question. In the conversations with his partner, the accused was recorded as saying, in effect, that he did not tell the police about being with the deceased because (as he put it) "he did not want to bring (himself) into it". Properly viewed, this is not a case of the accused simply omitting to tell the police about being with the deceased. If it were simply an omission, it would be not be a lie. It is more a case of (for example) the accused being asked whether he had ever seen the deceased before, and the accused responding by saying that he had not.
93In my view, it is important to bear in mind the nature of the third element of the test. In order to be categorised as a lie in the way argued by the Crown, there must (as explained by the majority of the High Court in Edwards (supra) at 211), be an available inference that the lie was told:
"...... because the accused knew that the truth of the matter about which he lied would implicate him in the offence or, as was said in Reg. v Lucas (Ruth) because of "a realisation of guilt and fear of the truth" (my emphasis)
94It has been recognised that because a person may lie for a variety of reasons, there may be cases where it is impossible to infer a consciousness of guilt from the nature of a lie, or the circumstances in which it occurred (see Heyde (supra) at 242 per Clarke JA). In the present case, it is relevant that the statement(s) in the second interview which are relied upon by the Crown as lies were made some 19 years after the relevant events took place. It is evident from the passage of the conversation of 18 January 2012 (at [63] above) that the substantial period of time which had elapsed since the death of the deceased was causing him to attempt to piece relevant occurrences together, long after the event. Whilst it may be that he answered questions put by the police because he did not wish to connect himself with the events surrounding the deceased's death that does not, without more, lead to the conclusion that his motivation for making such statements was a realisation of guilt of either of the offences with which he has been charged. Indeed, there were statements made by the accused, both in the course of his second interview with the police and in the two conversations with his partner, which were at odds with such a realisation.
95For these reasons, I have come to the view that the final element of the relevant test for lies has not been met. The Crown should not be permitted to rely on those statements as evidence of a consciousness of guilt on the part of the accused, as part of its overall circumstantial case.
The first basis of the application
96As I have noted, the first submission made on behalf of the accused was that the evidence taken at its highest establishes nothing more than the fact that the accused had sexual intercourse with the deceased between within 48 hours of her death.
97I have made a number of references to the finding of the pink underpants. In my view, the location at which they were found, and the presence of other items in that general vicinity, would be capable of sustaining an inference that the underpants belonged to the deceased.
98Mr Stratton SC emphasised that the absence of any DNA (including the DNA of the deceased) on the underpants was capable of sustaining an inference that they in fact did not belong to the deceased. In this regard, he placed some emphasis on the fact that Mr Cassidy had told police that he had seen two pairs of underpants at the scene. In the absence of a second pair being seized by police, Mr Stratton submitted that it would be open to the jury to infer that those which were seized and tested were, as he described them, a "spare pair" which had not been worn by the deceased around the time that intercourse had taken place.
99The absence of any DNA on the underpants which were found is certainly curious. Moreover, I accept that the evidence of Mr Cassidy may raise a question of the presence of a second pair of underpants at the scene. However, Mr Stratton's submissions really amount to the proposition that the evidence may sustain inferences other than those advanced by the Crown. As I have pointed out, the relevant enquiry at this stage of the proceedings is whether or not the evidence is capable of establishing a particular fact or element. The existence of competing inferences does not mean that the evidence is incapable of establishing a particular fact.
100Accepting that it would be open to the jury to infer that the pink underpants were those of the deceased, and notwithstanding his reference to the presence of fluorescent staining being consistent with the presence of semen, the evidence of Mr Bruce, as well as that of Ms Neville, is capable of supporting a conclusion that no semen was detected on them. Mr Bruce also gave evidence of the methods by which semen may drain from the anal cavity after being deposited. Although he described biological functions as being "the main factors" contributing to such drainage, he pointed out that drainage may result from something as simple as the person standing up and moving around.
101Further, although I have not specifically referred to it in my summary of the evidence, there is some evidence which connects the accused to an HQ model Holden motor vehicle. Tyre marks found the scene match those of the tyres fitted to that model vehicle.
102In my view, these circumstances combined are capable of supporting a conclusion that the underpants found at the scene were those of the deceased and that they had not been worn by her after any sexual intercourse had taken place. Bearing in mind the evidence of Mr Bruce that intercourse was likely to have taken place within a 48 hour period prior to the deceased's death, the evidence is at least capable of establishing that the accused had intercourse with the deceased at the Royal National Park.
103It follows that I am unable to accept the first of the submissions made by senior counsel for the accused.