R v Smith [2002] VSCA 219

R v Smith [2002] VSCA 219 - VSCA 2002 case summary — Zoe

[6]

"4. That the learned trial judge's directions to the jury in respect of the evidence of Dr Cass fell into error by failing expressly to direct the jury that they should disregard his opinions if they accepted that Ms Taylor had received her burns in a short, intense exposure to flame or as a result of contact in part with molten matter from the fire. 6. That the learned trial judge's directions to the jury in respect of the evidence of the witnesses Barnes and Xydias were defective in that he should explicitly have identified flaws in the witnesses' evidence and warned the jury accordingly. 8. That the verdict was unsafe and unsatisfactory as a result of the deficiencies identified in Grounds 4, 6, 9 and 10 in the aggregate, even if the deficiencies individually did not amount to miscarriages of justice. 9(a) That, in the circumstances of the case, the learned trial judge ought to have directed the jury that if they were to find the applicant guilty beyond reasonable doubt, they needed to find motive proved beyond reasonable doubt. 9(b) That, in the context of the direction as to motive, the learned trial judge ought expressly to have identified to the jury those matters which suggested that the applicant did not have a motive to kill his child. 10(a) That the learned trial judge erred in leaving the issue of consciousness of guilt to the jury in respect of what the Crown alleged to be "four important deliberate lies". 10(b) That in the alternative to Ground 10(a), the learned trial judge erred in failing in his directions expressly to apply the consciousness of guilt direction to the facts of the case. 10(c) In respect of the consciousness of guilt direction in relation to the relationship with Donna Wilkinson, if it was properly given, which is denied in Ground 10(a), the learned trial judge ought to have drawn specifically to the jury's attention the potential reasons why the applicant may have lied other than out of consciousness of guilt. 10(d) In respect of the consciousness of guilt direction in relation to the preceding fire in the kitchen, the learned trial judge ought not to have directed on consciousness of guilt because the applicant's alleged lie in respect of the preceding incident was not a material issue. 10(e) In respect of the consciousness of guilt directions in relation to the third and fourth alleged lies, the consciousness of guilt direction should not have been given because it was not properly open for the jury to draw an inference of consciousness of guilt out of the accused's alleged lies when such a process would constitute improper `boots-strapping' - it would involve the jury inferring that lies established by their ultimate conclusions were to be used as a consciousness of guilt in respect of the ultimate conclusions."

[114]

"I now turn to the question of motive. In general it is not necessary for the Crown in a criminal trial to establish the existence of a motive, that is a reason or powerful emotion which induced the alleged perpetrator to act as it is claimed that he did. Obviously the presence or absence of any such reason or powerful impulse is a matter that you would consider in arriving at your view of the facts. But you will understand that there may be circumstances in which while it is established beyond reasonable doubt that a particular person engaged in a particular activity, you may not, however, have the slightest idea as to why he or she did so. I do not know if it is true in your lives, as it is true in mine, that there have been occasions when it is terribly difficult for me to understand why I have acted as I did. Sometimes, as I suppose you may have experienced, when one looks at one's own behaviour no conceivable benefit could ever be seen to be derived out of acting in a particular fashion and on occasions I have acted knowing that it was highly unlikely that any benefit would be derived and it could be very much to my detriment. In other words, the absence of a motive or even a sensible reason for behaving in a particular way does not mean that one would not or did not do the act. On other occasions there may have been very good reasons for behaving in a particular fashion but nevertheless you have not done so. You will understand then that you may derive some assistance out of the presence or absence of a motive in assessing the evidence before you, but you are talking about the operation of the human mind and they way in which people will act and behave. Ultimately, the presence or absence of a motive cannot affect your judgment in an situation where you are satisfied beyond reasonable doubt as to the guilt of the accused; nor can it fill up the gap, as it were, for the Crown in a situation where you are not so satisfied." (1402-3) (Emphasis mine.) "As I have indicated, you may derive assistance out of the presence or absence of a motive in assessing the evidence before you, but ultimately the presence or absence of a motive cannot affect your judgment in a situation where you are satisfied beyond reasonable doubt as to the guilt of the accused, nor can the presence of a motive substitute for evidence that the accused man was guilty of the crime alleged against him." (1404) (Emphasis mine.)

[142]

It was argued for the applicant that for the jury to find his account of events in the bedroom to be lies, it would be necessary for them to have already found he was present there when the fire started - a finding conclusive of guilt. In my opinion, it was proper for his Honour to conclude that these alleged lies warranted separate consideration as lies evidencing consciousness of guilt and to direct the jury accordingly. In other circumstances, the applicant's account of events in the bedroom might have simply produced a conflict of evidence with that of his wife. But, in this trial, the applicant's account to the police was never squarely put to her. Rather, she was asked some questions which may have related to an aspect of it. Thus, asked about evidence which it was said she had given earlier at the Magistrates' Court, she said that she remembered kicking and fighting immediately before falling out of the side of the bed. She agreed she had also been asked, "You don't remember any other incident of kicking and fighting?" and she had replied, "No." (It will be recalled that the applicant's account to the police involved her grabbing and pulling him, going "crazy", and almost throwing him off the bed so that he flew through the air and landed on the other side, after he placed the Vicks VapoRub on a tissue on her face.) In noting this I am not being critical of counsel; the Crown Prosecutor had already obtained from Nicole Taylor firm evidence that the smell she experienced upon awakening was nothing like the smell of Vicks VapoRub and that it had never been a practice since the birth of the baby for her husband to place him in the bed beside her as he left for work. So, it may well be that counsel thought directly putting other aspects of the applicant's account to his wife would be unproductive. For whatever reason, a mere conflict of evidence between the two was avoided and a direction that the two accounts were such became inappropriate. It is in this setting that his Honour decided, correctly in my view, to give the "consciousness of guilt" directions. The run of the prosecution evidence required the applicant to explain how the baby came to be in the bed; how he came to leave it thus without alerting his wife to its presence and how his wife came to experience the sensations she described (difficulty in breathing - something over her face). Accordingly, the alleged lies were properly regarded as revealing a knowledge of some aspects of the offence and as told because the applicant knew the truth of the matter would implicate him. In my opinion, this was not a "bootstrapping" case. Nor can the applicant draw any support for this contention from his Honour's remarks at 1430. The learned judge was simply repeating the arguments of counsel which he had already directed the jury were not binding on them. (1388)

At a glance

Court

Decision date

Before

Source

Judgment (180 paragraphs)

Parties

Cases Cited (1)