R v Russo [2004] VSCA 206

18. Mr. Priest did not contend that the first, second and fifth alleged lies were incapable of being used by the Crown as evidence of guilt. Speaking for myself, I have some difficulty in comprehending how the alleged "lies" numbered 1 and 2 can be regarded as deliberate and proven lies of a material nature. It is true that the evidence made it plain that the accused was nowhere near his parents' premises in the morning of 18 April, but his statement that he was there at that time seems to me to be a matter of immateriality when, very shortly after making that statement, (to the effect that he had been to the premises at "lunch-time"), he told police that he was also there at or about 6 p.m. In these circumstances, it can scarcely be realistically contended - in my opinion - that his statement that he had been to the premises in the morning was a deliberate lie told to "distance himself" from the scene of the crime, particularly when the time so nominated was within a time frame during which, on the evidence available to the jury, the crimes may have been committed. It must be constantly borne in mind that very few "lies" told by an accused person will amount to implied admissions of guilt; and that those that are must be clearly demonstrated to be untrue and material. Most lies told by an accused person will merely affect his credit, or the credibility of the case which he is advancing [4]. Even if it could be said that alleged lies 1 and 2 were deliberate and proven lies (which I doubt), in my opinion they fell into the category of untruths which could only go to credit. I have the same view about alleged lie number 3; namely the statement made by the applicant in the course of his interview that when he first came across the body of his father on the Sunday evening he "could not work out what had happened". It was put by the prosecutor that this was an admission of guilt because the father had been so obviously "bashed to death" that the statement made by the accused must have been a deliberate lie told in an endeavour to avoid responsibility. In my view that argument is unpersuasive. There are, to my mind, many reasons - consistent with innocence - why a person who stumbled across this crime scene would express the view that, when so confronted, he could not work out what had happened. This "lie", if it is so found, is another which, in my opinion, goes solely to credit.

21. The fourth and sixth alleged "lies" which were relied upon, and left to the jury as lies evidencing consciousness of guilt, were both allied to the prosecutor's contention that the applicant had engaged in "guilty conduct" by removing from the vicinity of his father's body, the empty "safe" and the box in which it had been kept; and had relocated the "safe" in the position in which it was usually secreted - namely the top shelf of the pantry. This he had done, so he told the police on 27 April 1998, shortly after discovering his father's body. This conduct, so the Crown contended, was capable of supporting an inference of guilt because the secreting of the safe in this way suggested that he was the person who removed its contents. If it was open to the Crown to rely upon this conduct as demonstrating "consciousness of guilt"- and Mr. Priest did not contend to the contrary - then it seems to me that it was open to the Crown to use the fourth and sixth alleged "lies" as some evidence of guilt; namely his statement that he only remembered, on 26 or 27 April, that he had moved the "safe"; and his further statement that he had moved it, and the box in which it was located, to "clear the way for the ambulance officers". In this respect the Crown relied upon the detailed answers which the applicant had given to the police on 20 April 1998 about the existence and location and use of the "safe"; but without mentioning what he later said was an oversight; namely that he had moved the "safe" shortly after he had discovered the bodies. Furthermore, the Crown relied upon the statement which the applicant was alleged to have made to his friend, Rocco Cipriano on the night when he discovered the bodies:

"... there was money taken. I should have grabbed the rest of it, because the coppers are gonna get it."

25. Mr. Priest contended that the trial judge erred, when summarizing the Crown case, in telling the jury that the Crown relied upon this alleged statement to Cipriano as assisting them to infer "consciousness of guilt from the alleged lies and omissions which the Crown relies upon and which I have identified ...". Such directions, he submitted, amounted to an invitation to the jury to infer that the statements made to Cipriano, if accepted, could assist them in characterizing the lies and omissions - upon which the Crown relied - as springing from a consciousness of guilt. In truth, however, I think this submission of Mr. Priest - which relies for its efficacy upon a small extract from lengthy directions summarizing an aspect of the Crown case - takes the true import of his Honour's remarks out of their context. When read as a whole, his Honour's directions were a reminder to the jury of the Crown's argument that the statement made to Cipriano, if accepted, would tend to run counter to any innocent hypothesis which could be put forward for the applicant's conduct in "handling the safe". Thus, the directions were no more than a summary of the Crown's argument relating to the strength of its circumstantial case.

29. In the particular circumstances of this case, I agree with the conclusion drawn by Nettle, J.A. that this trial miscarried because of the persistent puttage to the jury, by the prosecutor in his final address, of the rhetorical question to the effect : "Who else but the applicant would have committed these murders." The number of occasions upon which this rhetorical question was posed to the jury in similar manner and form has been referred to in the judgment of Nettle, J.A. It seems to me that it became the fundamental theme of the prosecutor's address, and tended to upset the balance of fairness in the trial by asking the jury to speculate and, more importantly, by inverting the onus of proof and - in a subtle way - casting an obligation upon the accused, through his counsel, to answer the question in his final address.

32. I think it should be stressed that prosecution and defence counsel in a criminal trial should be permitted to put their respective cases to the jury in as robust a way as fairness will permit, and that an appellate court will be slow to intervene unless it can clearly be demonstrated that unfairness has been occasioned to the accused. For example, it might be that, in a circumstantial case, a single posing of a rhetorical question "Who else would have committed these crimes" could be equated to a submission that there was nothing in the evidence upon which the jury could conclude that there was any reasonable hypothesis consistent with the innocence of the accused person. But I agree with Nettle, J.A. that the persistent putting of the rhetorical question in this case, and the strategic times at which it was posed, went beyond the realms of this equation and created an imbalance of fairness in the trial of which the defence counsel was entitled to, and did, complain; and which was not sufficiently balanced by the trial judge's direction to the jury that at all times the onus of proof was on the prosecution.

36. It was argued on behalf of the applicant that the evidence led by the Crown was insufficient to sustain the verdicts of the jury; and that therefore those verdicts were unsafe and unsatisfactory in the sense explained by the High Court in M. v. R.[5]. In my opinion this ground cannot be made out, although I agree with Mr. Priest that the circumstantial case made by the Crown had aspects about it which depreciated its strength. The evidence of motive and opportunity was not strong and some of the material upon which the Crown relied to prove motive was less than convincing. It was uncontested that, despite extensive searches made by police of the premises occupied by the applicant's partner and his ex-wife, no money was located; nor was any blood found on his clothes (which had been collected); nor in his car (which was impounded); factors which - having regard to the violence of the bashings inflicted on the deceased - were themselves somewhat surprising. Police used various tactics to endeavour to get from the accused some form of incriminating statement beyond those upon which the Crown ultimately relied; including the use of listening devices in his premises; and recording devices secreted upon the persons of his friends (and, in one case, a covert investigator) who were instructed to put various questions to

the applicant in the hope that some incriminating statement might be made. Further, the evidence clearly revealed that someone (realistically the perpetrator) wearing what are called "Blundstone" boots, had stepped into the blood which had been shed by the deceased and carried the imprints around the floor in the house. The evidence was that the applicant did not own nor wear such boots; and investigations made by the police failed to show that he did. Indeed the police investigations over a long period of time failed to disclose any further material implicating the accused other than that which was put before the jury. It was three years after the murders that the applicant was charged. Notwithstanding these matters, there is in the evidence, in my view, a sufficient basis upon which a reasonable jury - properly instructed - could be satisfied of guilt.

40. For the above reasons I would allow the application and the appeal and direct a new trial to be had.

45. I have had the advantage of reading the reasons for judgment prepared by the President and by Nettle, J.A. I agree with them that leave to appeal against conviction should be granted, and that there should be a new trial. As to ground 4 I agree with the reasons Nettle, J.A. has given for the conclusion that the trial miscarried because of the persistent puttage of the rhetorical question "Who else would have committed these crimes?", which created an imbalance of fairness in the trial and was not sufficiently balanced by the trial judge's directions to the jury.

48. As to ground 5 I agree with the President and that the ground succeeds to the extent stated by his Honour.

51. As to Mr Priest's contention that the evidence led by the Crown was insufficient to sustain the verdicts of the jury, I agree with the other members of the Court that there was a sufficient basis upon which a reasonable jury, properly instructed, could be satisfied of guilt.

55. On 3 March 2003 the applicant Joseph Russo was presented for trial in the Criminal Division of the Supreme Court on counts of having murdered his parents, Gaetano Russo and Maria Russo. He pleaded not guilty. In the trial which followed, the Crown called 32 witnesses and tendered 13 exhibits and the applicant stood mute and did not call any evidence. The Crown case closed on 13 March 2003. The judge charged the jury on 17 and 18 March 2003 and at 11.45 a.m. on 20 March 2003 the jury returned verdicts of guilty on both counts. After hearing a plea in mitigation on 24 March 2003, on 22 May 2003 the judge sentenced the applicant to a term of imprisonment of 18 years on each count with 10 years of the sentence on count 2 to be served cumulatively upon the sentence imposed on count 1, making for a total effective sentence of 28 years' imprisonment, of which the judge ordered that the applicant serve not less than 23 years before being eligible for parole. The applicant now applies for leave to appeal against conviction on three grounds.[6]

59. The Crown's case was wholly circumstantial. It relied upon opportunity, motive and to a large extent alleged lies and conduct said to be evidence of consciousness of guilt. The importance of the last of those integers was such that the judge described it as "the second central matter to the Crown case". Six alleged lies and two pieces of conduct were left to the jury as capable of constituting evidence of consciousness of guilt and the judge gave a separate and detailed Edwards[7] direction in respect of each of them.

62. The alleged lies, as the judge outlined them in his charge, were:

1. "Firstly, the Crown submits that the accused lied to Senior Constable Chisholm at approximately 8.20 p.m. on 19 April [1998] and repeated that lie to Detective Senior Constable White at about 9.45 p.m. in saying that he went to his parents' home on the Saturday [18 April 1998] at approximately 11.00 a.m. and stayed there until approximately 1.00 p.m. during which time his parents had lunch....So the Crown relies on that lie as showing a consciousness of guilt, that he had gone to his parents' home between 11. 00 a.m. and 1.00 p.m."

2. "Secondly, the Crown relies upon [an alleged] lie told to Detective Senior Constable Iddles before the first record of interview (Exhibit F) commenced on 20 April [1998], and the lie is that the accused went to his parents' place twice on the Saturday [18 April 1988], the first time at about midday when his father was not at home and the second time at about 6.00 p.m.... Obviously [however] the latter part of that is not a lie, as there is no dispute on the defence case that the accused did go to his parents' home in the early evening."

3. "The third [alleged] lie that the Crown relies upon as showing consciousness of guilt is that the accused could not work out what had happened when he found his father [dead], and the Crown relies upon passages in the first record on interview (Exhibit F) and in the second record of interview (Exhibit P) where the accused said such things."

4. "The fourth [alleged] lie relied upon by the Crown as showing a consciousness of guilt is that [during the field interview] the accused told the police that he only remembered handling the safe a day or so before the field interview... [whereas] the sequence of events that have emerged in the trial [was] that it was not until some days after the accused was initially interviewed that he informed the police of what he had done with the safe. So the Crown says in relation to his explanation for why he had not told them earlier, namely that he had only just remembered it, that you should find that that was a lie born of consciousness of guilt."

5. "The fifth [alleged] lie which the Crown relies upon is that he threw or chucked the fan box in which the safe had been enclosed into the laundry and he told the investigators that in the field record of interview (Exhibit U) and in the record of interview of 6 May [1998] (Exhibit W)."

6. "The sixth and final [alleged] lie that the Crown relies upon as showing a consciousness of guilt is...that the accused said that he moved the safe and fan box away [from near to his deceased father] to clear the way for the ambulance officers. The Crown submits that you should find that that lie was told because of a consciousness of guilt."

71. The applicant's fifth and principal ground of appeal is that the third, fourth and sixth alleged lies should not have been left to the jury as capable of constituting evidence of consciousness of guilt. The argument is that the only way in which the jury would have been able to conclude that they were lies was by first assuming that the applicant was guilty. Therefore it is said that what was done ran counter to the warning in R v Laz[8], that:

"...however widely one may use lies established by the evidence at trial, one could not assert properly to the jury, nor could the judge leave it open to them to infer, that lies established by their ultimate conclusions in the case were to be used as a consciousness of guilt of each of the two counts for the purpose of reaching the very same conclusion as to ultimate guilt. That truly would involve a `boot-straps' argument and could not be countenanced upon any interpretation of Edwards' case or any other case..."

75. I am not persuaded by the argument. The decision in Laz is not in doubt and plainly it is not permissible to leave alleged lies to a jury as capable of constituting evidence of consciousness of guilt unless there is evidence that the alleged lies are lies. But in my opinion there was evidence from which it was open to infer that the third, fourth and sixth alleged lies were lies.

78. In the case of the third alleged lie, there was photographic evidence of the crime scene[9] which showed the applicant's deceased parents' home to be greatly disturbed and seemingly ransacked and that the applicant's deceased father had suffered obvious and horrendous injuries. Confronted with the scene, most people would surely have come immediately to the conclusion that there had been foul play leading to the death of the deceased. It taxes credulity that the applicant would not have realised what had happened.

81. In the case of the fourth lie, the fact that the applicant omitted at first to tell police that he had handled the safe and then later (as the interrogation became more refined and intense) said that he had only just recalled that he picked up the safe from the floor near to his deceased father and put it away on the top shelf of the pantry, is evidence from which one could infer that the account given was deliberately false. I do not necessarily say that one could be satisfied of that conclusion beyond reasonable doubt. But it is not always necessary to establish deliberate untruth beyond reasonable doubt. As Deane, Dawson and Gaudron, JJ. explained in Edwards[10]:

"Although guilt must ultimately be proved beyond all reasonable doubt, an alleged admission constituted by the telling of a lie may be considered together with the other evidence and for that purpose does not have to be proved to any particular standard of proof. It may be considered together with the other evidence which as a whole must establish guilt beyond reasonable doubt if the accused is to be convicted. If the lie said to constitute the admission is the only evidence against the accused or is an indispensable link in a chain of evidence necessary to prove guilt, then the lie and its character as an admission against interest must be proved beyond reasonable doubt before the jury may conclude that the accused is guilty. But ordinarily a lie will form part of the body of evidence to be considered by the jury in reaching their conclusion according to the required standard of proof. The jury do not have to conclude that the accused is guilty beyond reasonable doubt in order to accept that a lie told by him exhibits a consciousness of guilt. They may accept that evidence without applying any particular standard of proof and conclude that, when they consider it together with the other evidence, the accused is or is not guilty beyond reasonable doubt."

85. In the case of the sixth alleged lie, it is apparent from a record of interview of 27 April 1998 that the applicant then had a clear and complete recollection of moving the safe from the floor where it lay near to his deceased father and putting it up on the top shelf of the pantry where it was usually kept. He also reported a clear recollection that his reason for moving it was to clear the way for ambulance officers. Admittedly, as with the fourth alleged lie, there is nothing which directly contradicts that version of events. But the photographic evidence shows that the so-called safe was little more than a lockable plastic case[11], about the size of a small attache case, and it is difficult to see why that would constitute an impediment to the path of ambulance officers. When the consequent improbability of the explanation is combined with the fact of the applicant's delay in reporting the movement of the safe, I think it is open to conclude that the proffered reason for movement was deliberately false. Again as with the fourth lie, I do not necessarily say that an inference of deliberate untruth could be drawn beyond reasonable doubt. But as I have endeavoured to explain, that is not always a requirement.

88. The applicant also attacks the directions given by the judge about the way in which the jury were to approach their consideration of the alleged lies. It is contended that:

* The judge did not instruct the jury that the mendacity of each of the alleged lies had to be established by evidence independent of the alleged lie.

* The judge did not sufficiently identify "the circumstances and events that [were] said to indicate that it constitutes an admission against interest" or in other words how it was that any particular lie might constitute an implied admission.

* The judge did not go far enough in directing the jury that they had to be satisfied that the lies related to a material issue and revealed "a knowledge of the offence or some aspect of it."

* The judge in effect invited the jury to find that other utterances which the applicant was said to have made to a Mr Cipriano assisted them in inferring a consciousness of guilt and thereby in effect invited the jury to use guilt to establish that the applicant had lied.

95. I do not accept the first of those contentions. The judge directed the jury that:

"Before you would be entitled to rely upon a false statement made by Mr Russo as indicating a consciousness of guilt, you would have to be satisfied that no other interpretation is reasonably open about the statement but that it shows a consciousness of guilt in respect to his criminal conduct at Blackshaws Road. Accordingly, you may conclude or (to use the expression to which I have referred[12]) infer that Mr Russo has demonstrated a consciousness of guilt of the commission of the crime if, and only if, you are satisfied beyond reasonable doubt that, firstly, the answers attributed to him were made by him (and as to that you will take into account that the accused has not disputed that he made those statements). Secondly, you must be satisfied beyond reasonable doubt that what he said were lies and that the accused knew at the time that he made the statements that they were untrue... ... I remind you it is not for Mr Russo to establish his innocence, it is for the Crown to prove his guilt beyond reasonable doubt. But the Crown relies upon his answers in the records of interview as entitling you to reach the conclusion that Mr Russo's explanation of the events that night is not a truthful one. You could not be satisfied beyond reasonable doubt about Mr Russo's guilt if you were of the view that it was a reasonable possibility that Mr Russo's account to the police was truthful. That should be obvious to you. So part of your process is to consider whether or not, having taken into account all of the evidence, you think Mr Russo's explanation remains a reasonable possibility." (My emphasis).

99. I consider that the second complaint is also misplaced. The judge explained to the jury that the Crown case was that the applicant had told the alleged lies for the purposes of concealing his involvement in the murders and that they needed to be satisfied that the only reasonable explanation for the accused telling such deliberate lies was the applicant's consciousness or awareness that he was guilty of the crimes with which he was charged. The judge told the jury that they had to be satisfied that:

"[The applicant's] statement must constitute an unequivocal acceptance by him of the guilt of the charge which you are considering, and there must be no other reasonable explanation or interpretation of the false denial open in the circumstances."

103. The third contention is wrong. The judge told the jury that:

"...you need to be satisfied beyond reasonable doubt that the lies or untruths were about a matter or matters of importance in relation to the commission of the crime."

107. The fourth contention is no more convincing. It relates to evidence of a statement which the applicant is said to have made to a Mr Cipriano, within hours of the police arriving at the crime scene, that: "I should have taken the rest of the money because the cops are gonna get it". The judge told the jury that the Crown relied on that alleged statement as showing that the applicant was aware that money had been taken from his parents' home at the time that they were murdered, and also that he was aware that not all of the money in the house had been taken, and that the Crown argument was that those things pointed to the applicant as the murderer. The judge directed the jury that before they could act on that evidence they would have to be satisfied beyond reasonable doubt that the applicant had in fact made the statement to Mr Cipriano, and that it was true[13], and his Honour directed the jury that even if they were satisfied of those things, the terms of the statement could not be treated as an admission that the applicant had taken any of the money; but only as demonstrating that the applicant knew that money was taken from his parents' house and instead of telling the police about it he had put the safe away and kept quiet about it. Thus, as judge explained to the jury, the evidence could not be accepted unless the jury were satisfied of its existence beyond reasonable doubt and, even if the evidence were accepted, it was no more than circumstantial evidence which (in combination with other evidence) might be used in deciding whether any of the six lies previously mentioned demonstrated a consciousness of guilt. I see no error in any of that.

111. The two pieces of conduct left to the jury as capable of constituting evidence of consciousness of guilt were described by the judge in his charge as:

"The first is the removal of the safe and the fan box from the vicinity of the accused's father. The Crown submits that that is conduct from which you should infer that the accused was guilty of the crime because the only reasonable explanation for him doing so was because he was the murderer and he was simply putting the safe and the fan box away from the scene of the crime so that it would not be discovered that the safe had been opened and the money taken. The second thing ...is the failure to mention the [fact of moving the] safe to the police on the Sunday night or Monday morning."

115. The applicant accepts for the sake of argument that the fact of moving the safe and the box might be capable of constituting evidence of consciousness of guilt, but submits that upon any analysis the applicant's failure to mention the matter to the police could not constitute such evidence.

118. I accept that submission. The Court of Criminal Appeal dealt with the point in R. v. Smith, Ashford and Schevella[14], as follows:

"...this is just what the authorities to which we have a little earlier referred declare cannot be done. The use of a refusal to answer police questions after the customary warning as an aid to an assessment of an accused's credibility is one thing. It is altogether another to employ the selection of questions as those not to be answered as evidence of guilt. The Court in McNamara's case specifically said (at 868) that it considered:

`... that it was a misdirection ... to proceed to tell the jury that the applicant's answers and the manner of his selectiveness would entitle you, if you thought fit, to hold that the interview in this case demonstrated a consciousness of guilt of the crime here charged.'

In so holding the Court was of opinion that it was not prevented from so concluding by anything to be found in the judgments in Woon [1964] HCA 23; (1964) 109 C.L.R. 529. In the later case of Bruce, Gray J, speaking on behalf of the Court, after a discussion of the case law, said (at 594; 137) that he came to the conclusion that the `weight of authority makes it clear that what is forbidden is the use of the accused's silence, at least after a caution, as an admission which could itself provide evidence against him'. It must follow that the passage from his Honour's charge to which we have referred amounts to a misdirection."

124. Mr Elston for the Crown referred us to this court's decision in R. v. De Marco[15] and in particular to observations of Tadgell, J.A.[16] in that case to the effect that there was no reason to suppose that a trial judge might not invite a jury to use a feigned absence of memory as an admission against interest. His Honour said that a lie of that kind could be used to assist a conclusion that a recollection of what was done could be inconsistent with a lack of intention to do it at the time it was done. Mr Elston argued that the same was true in this case - for in his submission the failure of the applicant to say anything of moving the safe was tantamount to feigning ignorance of its movement - and that feigned ignorance of movement once exposed as false could be regarded as inconsistent with the applicant's later denials of knowing how the safe had come to be on the floor at the time of the death of the deceased.

127. That argument is not persuasive. In the passage cited from De Marco Tadgell, J.A. was directing attention to a positive statement made by an accused to police that the accused had no recollection of what had occurred at the relevant place at the relevant time. His Honour did not there mention the position of an accused who chooses to say nothing or to say something in response to some questions and nothing in response to others or in any event to say less than he knows. In a later part of his judgment, Tadgell, J.A. did deal with a misdirection that the accused's failure to mention a trip to St Andrews after the offence was capable of constituting evidence of consciousness of guilt. But his Honour dealt with that matter on the basis that the fact of going to St Andrews after the offence was incapable of implicating the accused in an event material to the offence. There is no suggestion in his Honour's analysis that failure of an accused to mention a matter to police during police interrogation is capable of constituting evidence of consciousness of guilt.

130. Mr. Elston argued in the alternative that even if the trial judge in this case did misdirect the jury on the applicant's failure to mention the safe, the point was not sufficiently important to have resulted in a miscarriage of justice; and hence that the proviso should be applied. I regret to say that I am unable to accept that contention. The court in R. v. De Marco was of opinion that there was no substantial miscarriage. But that was because the trial was in effect run on a single issue of the credibility of a particular witness. It was therefore concluded that the misdirection as to the applicant's failure to mention the trip to St Andrews would not have had the slightest effect upon the jury's verdicts. That is not the position in this case. As already noticed, the suggested evidence of consciousness of guilt was critical to the Crown case. And while the applicant's failure to say anything to the police about the safe was only one aspect of the evidence relied upon as evidencing consciousness of guilt, it was an important aspect of it. In those circumstances it is not possible to say that its erroneous presentation to the jury as evidence of consciousness of guilt could not have deprived the applicant of a real chance of acquittal.[17]

Ground 4: Improper and unfair prosecution arguments

134. The applicant's fourth ground of appeal is that a miscarriage of justice occurred by reason that the prosecutor many times in final address posed a rhetorical question along the lines that: if it were not the applicant who murdered his parents, then who was it? It is contended on behalf of the applicant that the effect of that technique of address was to call upon the applicant to show who it was who murdered his parents, and thereby to invert the onus of proof. It is said that the prosecutor thereby did the very thing that the High Court held in Palmer[18] a prosecutor ought not to do.

137. The decision in Palmer was concerned with questions asked of an accused as to what might be the motives of Crown witnesses to give false testimony against the accused. The rationale of the decision was that questions of that kind are improper because they invite the jury to speculate about witnesses' motives for lying and to assess the likelihood of those motives and, since an absence of a plausible explanation for lying is not proof that there is no motive for lying, that is to invite a jury to speculate about unproven facts. A second reason underlying the decision was that such questions are unfair, because the accused cannot be expected to see into the mind of Crown witnesses and be held accountable for an inability to discern whatever motive there may be for a false story. A further and fundamental consideration was that the effect of such questions is to reverse the onus of proof by implying that unless the jury is satisfied that the Crown witness is a liar, they should convict.

140. Since Palmer was decided it has been held that the rule which it laid down is in some cases capable of applying as much to questions posed in final address as it is to questions put in cross-examination.[19]

143. In this case there is no issue about questions of why Crown witnesses might lie. But logically each of the considerations which informed the decision in Palmer is applicable to the sorts of questions which were posed by the prosecutor in final address. They invited the jury to speculate as to who may have been responsible for the murders and to assess the likelihood of someone other than the accused having been responsible. Since the absence of a plausible explanation as to who else might be responsible is not proof that the accused was responsible, that was to invite the jury to speculate about unproven facts. The questions were prima facie unfair because, presuming innocence, the accused could not be expected to know who else may have been responsible or be held accountable for failing to discern who else may have been responsible. That is the very thing which it was said in Dyers[20] may not be done. And the effect of the questions was to reverse the onus of proof, in that they implied that unless the jury were satisfied that someone else may have been responsible for the murders, the jury should assume that the applicant was responsible and convict him.

146. Are there then any considerations which despite logic suggest that the rule in Palmer should not apply to questions of the kind that were posed by the prosecutor in this case? I do not think that there are any and the Crown has not identified any. Presumably, questions of the kind posed by the prosecutor in this case hang over most cases of its kind. In such a case a jury is likely to ask itself the same questions or something very like them.[21] But the point of the directions which are ordinarily given by a trial judge about the burden of proof, and about deciding the case on the basis only of the evidence, and about avoiding speculation upon matters not the subject of evidence, is to steer the jury away from the error of speculating about who else may have been responsible. Prosecutors should not be permitted by rhetorical flourishes or otherwise to neutralise or reduce the effect of those directions. So, in my opinion, just as prosecutorial questions about motive to lie are not made acceptable by the fact that similar questions may hang in the ether, so too questions as to who else may have done the crime are not made acceptable by the fact that questions similar to that may hang in the ether.

149. It remains to determine whether the result of the questions posed by the prosecutor in this case resulted in a miscarriage of justice. I think that they did.

152. To begin with, this was not a one-off or otherwise unintended incident. It is clear that it was the prosecutor's tactic to repeat many times and at strategic points in the course of final address the same fundamental conundrum of who was it, if it were not the accused? Thus:

1. At the outset of the address, the prosecutor said:

"In the course of this address I want to pose five or so questions to you and ask you to consider the issues that arise in response to those questions. The first one is this: if it wasn't the accused man who murdered Gaetano and Maria Russo, then who was it? Question no. 2 - this burglary, this disturbing of the house was staged, it wasn't a genuine burglary - the question we would pose is this: who would stage a burglary? Who would have reason to set up this house to make it look like some interrupted burglary?".[22]

2. The prosecutor then reminded the jury that the burden of proof was on the Crown and that the standard of proof was beyond reasonable doubt, and that their verdict had to be unanimous, and continued:

"I have posed a number of questions to you. I now want to examine each of those questions. The first question we ask [is]this: who else but the accused killed Gaetano and Maria Russo?".[23]

3. The prosecutor next moved to the fact that the deceased had lived quiet and uneventful lives and he suggested that, because money was found in the house after the offences had been committed, the primary motive seemed not to be theft, and then continued:

"Well, who else, members of the jury, had a motive? Who else could have had a reason to kill Gaetano and Maria Russo except the accused?".[24]

4. The prosecutor next outlined what he said were the possible motives of the accused to kill the deceased, in particular, frustration that they would not lend the accused a sum of $15,000 which he is said to have needed, and then the prosecutor continued:

"I return to the question that I posed: who else but the accused killed Maria and Gaetano Russo?". [25]

5. The prosecutor then addressed criticisms made of two Crown witnesses who had given evidence as to the accused's strained relationship with his parents shortly before their deaths and, having concluded that section of the address with a submission that the jury did not have any reason to disbelieve those witnesses, the prosecutor moved to what he described as the second question:

_"_Members of the jury, can I now invite you to consider the second question that I posed. The burglary was staged. Who else had reason to stage the burglary?".[26]

6. The prosecutor followed that with an outline of a number of reasons and evidence as to why it should be accepted that the burglary was staged, and then repeated:

"Members of the jury, I will return to the question I was posing. This burglary was staged. Who else but the accused man had reason to stage the burglary?".[27]

7. The penultimate section of the address was directed to the lies and conduct which were said to evidence consciousness of guilt, and culminated in this:

"Members of the jury, those are the five questions that I posed_. If it wasn't the accused, who else was it? It is a staged burglary. Who would stage a burglary but the accused to try and hide his involvement?_ Why has the accused man said, `I should have taken the rest of the money' if he is not the killer? Why would the accused man lie about his movement on the Saturday? Why would he lie about what he did with the safe - all that he did with the safe, the very actions he performed with it, the way he comes and tells the police about it finally? Those are lies, those are issues, I suggest, that go to actual evidence of his guilt, lies going to a consciousness of guilt." [28]

8. Finally, the prosecutor dealt with the subject of lies which were not said to be evidence of consciousness of guilt, but were said to go to credit, and he made submissions to the jury as to why they should reject the points which had been made in the course of the defence case. He concluded the address with this:

"The prosecution case really is this, member of the jury, it really involves the consideration of those questions that I posed. If it wasn't the accused, who was it? Why would an intruder stage a burglary? Only the accused would do that. Why would the accused - what follows from the accused saying to Cipriano: `I should have taken the rest of the money'? [Why] does he lie about his movement on the Saturday? Why does he lie about every issue really associated with the safe? He is a person, members of the jury, in our submission, of no credibility. Two weeks before the murders he was talking of bashing his parents in the context of wanting money. How did they die? They were bashed. It is our submission, members of the jury, that your verdicts in this case should be guilty of murder in respect of both counts on the presentment. Thank you."

In my opinion the result of such a significant degree of repetition, at so many strategic points in the address, must surely have been to leave as the fundamental question ringing in the jury's ears: who was it if it were not the accused?

172. In the second place, immediately after the prosecutor's final address, counsel for the accused specifically drew to the judge's attention the many occasions on which the prosecutor had repeated the question in the course of the address and he referred the judge to the decision in Palmer. He submitted that the prosecutor had had acted impermissibly in posing the question and thus by attempting to reverse the burden of proof and he asked the judge to deal in the course of the charge with the problem thus created.[29] Consequently, this was not a case in which defence counsel made a tactical decision[30] to have the jury approach the matter on the basis of an assessment of the likelihood that someone else may have been responsible.

175. In the third place, although the judge did deal with the matter in his charge, his Honour was with respect very lenient in his criticism of the prosecutor and he did not tell the jury that the questions were irrelevant. His Honour said only that:

"You will recall, firstly, that the learned prosecutor addressed you and he commenced by asking you five questions: Who committed these murders if it was not the accused? Who would set up the burglary? That is, who would go to the trouble of making something that wasn't a burglary look like a burglary? Why did the accused say what he did to Mr Cipriano? Why did the accused lie about his movements on the Saturday? And why did the accused lie about what he did with the safe? In asking the first question: Who did it if it was not the accused? - the learned prosecutor was, you might think, merely using a method of reasoning to invite you to examine the facts on the Crown's submission on the basis that you would reach the conclusion according to the learned prosecutor that no one other than the accused is likely to have committed such an offence and you should be satisfied about that beyond reasonable doubt.[31] The fact that he posed so many of the points he was making by way of a question, does not, of course, reverse the onus of proof. The Crown throughout, of course, has the obligation of satisfying you beyond reasonable doubt. As he said to you at the outset of his submission, the accused has no burden on him to prove anything, the Crown must prove the case. [32]

179. What is more, having given that direction, the judge then continued the charge by repeating the very question which was at the heart of defence counsel's complaint:

"[The prosecutor] said to you that you should conclude from the evidence that the person who entered the house did not enter the house for the purpose of stealing. He relied on the fact that there was no indication that the person that was there was an uninvited guest. He asked rhetorically: Who else had a reason to kill the deceased other than the accused? These were not killings, he said, to avoid detection, and you should look at the brutal, sustained and passionate way in which these injuries were inflicted."[33]

183. When counsel for the accused then submitted that the judge had not done enough to overcome the effect of the questions posed by the prosecutor, the judge said that he did not know what more he could do than to emphasise (as his Honour had emphasised) that the burden of proof was upon the Crown and that the rhetorical questions posed by the applicant were simply a technique for examining the facts.[34]

186. With respect, I consider that there was more that his Honour could and should have done to reverse the effect of the prosecutor's rhetorical questions. No doubt the jury would have understood that the burden of proof was upon the Crown and that the Crown had to satisfy them beyond reasonable doubt of the guilt of the accused. The judge's directions made that clear. No doubt too the jury would have done their best to decide the matter accordingly on the basis of what they believed needed to be established before they could be satisfied of guilt beyond reasonable doubt. But it is one thing to know that one must decide a case on the basis of proof beyond reasonable doubt and it is another to be aware of what may and may not be taken into consideration in reaching that state of satisfaction. The problem here was that the jury had had repeated to them, again and again, the conundrum: who was it, if not the accused? It is conceivable that the judge could have annihilated the prejudice which that may have caused by instructing the jury that the question was an irrelevant inquiry so far as they were concerned; and that they were to put it out of their minds along with any other speculation about who else may have been responsible; and that they were to concentrate on the question of whether the evidence which the Crown had placed before them did or did not satisfy them beyond reasonable doubt that the applicant was guilty as charged. Instead of doing that, however, the judge in effect told the jury that for the purposes of deciding whether the Crown had satisfied them of the accused's guilt beyond reasonable doubt, it was legitimate to think of the questions posed by the prosecutor as:

"...a method of reasoning...to examine the facts...[to] reach the conclusion...that no one other than the accused is likely to have committed such an offence and you should be satisfied about that beyond reasonable doubt."

190. In my opinion that left a significant risk of members of the jury approaching their task on the basis that, unless they could conceive of why someone else would have committed the crime, they should conclude that the accused was guilty beyond reasonable doubt. Accordingly, I conclude, as Buchanan, J.A. did in R. v. Hewitt[35], that:

"Here the question was a central theme of the Crown case, and in my view the mere repetition of the question and the response of defence counsel [and] by the learned judge did not dislodge the question from its prominent position. Indeed [the judge's] remarks may have been treated by the jury as approval of this state of affairs."

195. The applicant contends that the strength of the Crown case was such that the jury should have entertained a reasonable doubt and thus that the verdicts are unsafe and unsatisfactory. In view of what I have already said about grounds 4 and 5 it is unnecessary that I say much about that contention. I note, however, that despite that in any re-trial it would not be open to the Crown to rely upon the applicant's failure to mention the safe as constituting evidence of consciousness of guilt, or to pose rhetorical questions of the kind that were posed by the prosecutor in the course of final address, in my opinion there would be evidence upon which it would be open to the jury to convict.[36]

199. In the result, I would allow the application for leave to appeal and treat the appeal as having been heard instanter. I would then allow the appeal and quash the convictions and I would order a new trial to be had.

[1] Cf. per Kirby, J. Zoneff v. The Queen (2000) 200 C.L.R. 234 at 262-3. (His Honour was in dissent as to the result but not, as I see it, on this issue.)

[2] Cf. R. v. Renzella [1997] 2 V.R. 88 at 91.

[3] [1993] HCA 63; (1993) 178 C.L.R. 193 at 210-11.

[5] [1994] HCA 63; (1994) 181 CL.R. 487.

[6] Other grounds of appeal were not pursued.

[7] Edwards v. The Queen [1993] HCA 63; (1993) 178 C.L.R. 193.

[8] [1998] 1 V.R. 453 at 466.

[10] [1993] HCA 63; (1993) 178 C.L.R. 193 at 210.

[12] The judge had earlier given a proper direction about the drawing of inferences.

[13] Cf R. v. Burns [1975] HCA 21; (1975) 132 C.L.R. 258 at 261.

[14] (1990) 50 A.Crim.R. 434 at 457.

[15] Unreported, 26 June 1997; BC 9702902.

[17] Mraz v. The Queen [1955] HCA 59; (1955) 93 C.L.R. 493 at 514; Wilde v. The Queen [1988] HCA 6; (1988) 164 C.L.R. 365 at 371-2; R. v. NRC [1999] VSCA 184; [1999] 3 V.R. 537 at 558 [45].

[18] Palmer v The Queen [1998] HCA 2; (1998) 193 C.L.R. 1.

[19] See, for example, R. v. Hewitt [1998] 4 V.R. 862 at 866-869; R. v. Hilsley [1998] VSCA 143 at [24]; PLK v. R. [1999] VSCA 194; [1999] 3 VR 567 at 574 [22]- [28] and at 580 [56]-[62]; R. v. Cupid [2004] VSCA 183 at [3]; cf R. v. Brown [2000] VSCA 102 at [19].

[20] Dyers v. The Queen (2002) 210 C.L.R. 285 at 294 [14]-[15].

[21] cf R. v. F (1995) 83 A.Crim.R. 502 at 511-512; R. v. Hewitt [1998] 4 V.R. at 867.

[30] Suresh v. The Queen [1998] HCA 23; (1998) 72 A.L.J.R. 769 at 771 [6]; Doggett v. The Queen (2001) 208 C.L.R. 343 at 346 [1]-[3]; TKWJ v. The Queen [2002] HCA 46; (2002) 212 C.L.R. 124 at [26].

[35] [1998] 4 V.R. 862 at 867.48, with whom Phillips, C.J. and Charles, J.A. agreed.

[36] cf. R. v. R (1989) 18 N.S.W.L.R. 74; Doney v The Queen [1990] HCA 51; (1990) 171 C.L.R. 207; MFA v The Queen [2002] HCA 53; (2002) 213 C.L.R. 606 at 614-5 [25] - [26].