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SUPREME COURT OF QUEENSLAND

CITATION: R v Wehlow [2001] QCA 193

PARTIES: R / v / WEHLOW, Linda Joy / (appellant)

FILE NOS: CA No 210 of 2000 / SC No 123 of 1998

DIVISION: Court of Appeal

PROCEEDING: Appeal against Conviction

ORIGINATING COURT: Supreme Court at Cairns

DELIVERED ON: 25 May 2001

DELIVERED AT: Brisbane

HEARING DATE: 1 March 2001

JUDGES: McMurdo P, Williams JA, Wilson J / Separate reasons for judgment of each member of the Court, each concurring as to the order made.

ORDER: Appeal against conviction dismissed.

CATCHWORDS: CRIMINAL LAW – EVIDENCE – CONFESSIONS AND ADMISSIONS – lies by accused – whether trial judge gave proper direction to jury as to use to be made of lies – whether lies could be used as evidence of consciousness of guilt of murder or manslaughter – whether trial judge sufficiently particularised the lies – whether any misdirection resulted in substantial miscarriage of justice / Criminal Code (Qld), s 28(3), s 668E(1A) / Edwards v R (1993) 178 CLR 193, applied. / R v M [1995] 1 Qd R 213, considered. / R v Rice [1996] 2 VR 406, considered. / R v Woolley (1989) 42 A Crim R 418, considered. / Richens (1994) 98 Cr App R 43, considered. / Zoneff v R (2000) 200 CLR 234, applied.

COUNSEL: A J Rafter for the appellant / P M Ridgway for the respondent

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

McMURDO P: I have read the reasons for judgment of Wilson J in which the relevant facts and issues are stated.

The sole issue at trial was whether the appellant killed the deceased with an intention to kill or do grievous bodily harm; it was not in issue that she unlawfully killed him. The learned primary judge correctly left for the jury's consideration the effect of intoxication in ascertaining whether such intention existed.¹

Although the prosecutor at trial did not use the words "consciousness of guilt", he invited the jury to use the lies she told to conclude that the appellant, despite any intoxication, formed an intention to kill or do grievous bodily harm to the deceased; the 23 lies she told demonstrated a clear recollection of the killing which was inconsistent with her having been so intoxicated that she did not form the necessary intention. This was effectively a submission that the lies could be used as evidence of guilt; the prosecutor's submission went beyond mere relevance to her credit: see Edwards v The Queen.² In these circumstances, the learned primary judge correctly gave the Edwards-type direction: see Edwards and Zoneff v The Queen.³

I agree with Wilson J's reasons for concluding that in the circumstances of this case the judge sufficiently particularised the lies in accordance with the requirements of Edwards.⁴

I also agree with Wilson J that the learned primary judge's initial direction to the jury as to the use to be made of the lies did not sufficiently clearly identify the need to be satisfied the lies were told out of a realisation that the truth would implicate the appellant in the offence of murder, rather than to simply distance herself from the unlawful killing. But this deficiency was remedied in the redirection set out in para [28] of Wilson J's reasons.

The directions given by the learned primary judge looked at as a whole in all the circumstances sufficiently met the requirements of Edwards and Zoneff. There was no misdirection. The appeal should be dismissed.

I agree with the order proposed by Wilson J.

WILLIAMS JA: I have had the advantage of reading the reasons for judgment prepared by Wilson J, and I will not repeat the relevant facts which are fully recounted therein.

It was not seriously disputed at the trial that the appellant shot Keith Geoffrey Taylor thereby causing his death. The contention of the appellant at trial was that she had no intent to cause death or grievous bodily harm at the time of the shooting, primarily because of her state of intoxication. There was no evidence from any source other than the appellant as to her condition at the material time. In order to negative that defence, counsel for the prosecution relied heavily in his address on 23 lies told by the appellant subsequent to the death. The lies were constituted by statements the appellant made to police and others over a number of days after the death of the deceased. Many of the lies were obvious.

Though he spent much time in his address in dealing with those lies, counsel for the prosecution did not contend to the jury that all or any of them demonstrated a consciousness of guilt. Rather, the argument was that the lies established a pattern of calculated deceit from which the jury could infer that the appellant had the intention of causing death or grievous bodily harm when she shot the deceased.

The problem facing the learned trial judge was that the Crown prosecutor's argument, though not expressly directed to consciousness of guilt, came very close to that. Obviously the learned trial judge was concerned that the jury might infer from what was said in that address that the telling of the lies could be evidence of guilt. Because of that he gave an Edwards direction. In the circumstances he was correct in doing so; he applied what was said by Gleeson CJ, Gaudron, Gummow and Callinan JJ in Zoneff v The Queen (2000) 200 CLR 234 at 244:

"There may be cases in which the risk of misunderstanding on the part of a jury as to the use to which they may put lies might be such that a judge should give an Edwards-type direction notwithstanding that the prosecutor has not put that a lie has been told out of consciousness of guilt".

The principal attack on the direction actually given by the learned trial judge concentrated upon his failure to particularise or identify the lies in question. As Wilson J has correctly observed, if the learned trial judge in his summing-up precisely identified again each of the 23 lies, that would have given them undue prominence, and such a course had the potential to be prejudicial to the appellant. Any further comment by the judge may well have added weight to the possible inference that the lies were told out of a consciousness of guilt.

Particularly where, as here, the Edwards direction is only given to ensure that the jury was not mistaken as to the use which could be made of the lies, it was not necessary to identify each relevant lie. Identification of each lie is only essential when the lie is being relied on specifically to establish consciousness of guilt.

Counsel for the respondent on the hearing of the appeal submitted that the redirection quoted in the reasons for judgment of Wilson J was unduly favourable to the appellant and need not have been given. Relying on two Victorian decisions (R v Woolley (1989) 42 A Crim R 418 at 423-4 and R v Rice [1996] 2 VR 406 at 415-6) it was submitted that it was not necessary for the jury to find that the accused must have acted out of a consciousness of guilt of the particular offence charged where the wrongdoing may cover a number of possible charges - in those cases as in this, murder or manslaughter. Counsel for the appellant referred to the decision of this Court in R v M [1995] 1 Qd R 213 where Davies JA (with the concurrence of McPherson JA and Williams J) in dealing with consciousness of guilt arising from flight expressed the view at 222-3 that "the appellant's flight did not necessarily indicate a consciousness on his part of having raped or had intercourse with the complainant" as the "jury were entitled to infer from the evidence of flight that the appellant was conscious of having indecently dealt with the complainant". Woolley was not considered by the Court on that occasion. The court was there concerned with distinct offences committed over a period of about six years. That may well be sufficient to distinguish that case from that where the number of possible charges arise out of the one set of facts, as here.

As the matter was not fully argued before this Court I would prefer to leave open for future determination the question whether the reasoning in Woolley and Rice states the law for Queensland. It is sufficient for present purposes to say that the directions given, particularly the redirection, favoured the appellant.

If, contrary to my conclusion on the adequacy of the Edwards direction given in the summing-up, there was error in failing to identify the lies with some particularity this would be an appropriate case for applying the proviso. I need not add to what Wilson J has written on that point.

Subject to what I have said herein, I agree with the reasons for judgment of Wilson J and the order she proposes.

The appeal should be dismissed.

WILSON J: The appellant was convicted of the murder of Keith Geoffrey Taylor in the Supreme Court at Cairns on 15 August 2000. She appeals against the conviction, contending that the trial judge misdirected the jury in relation to lies, and seeks a retrial.

The appellant and the deceased lived together in a caravan at an isolated campsite a few kilometres west of the Palmer River Roadhouse in far north Queensland. He was a gold prospector. She had a son, who boarded in Lakeland, where he attended primary school during the week, and came home for weekends.

On or about 9 September 1997 the deceased died as the result of being shot in the back of the head at close range by the appellant. She put the body in a wheelbarrow and took it to the dry bed of the Palmer River where she dumped it, making some attempt to conceal it by covering it with sand and some bracken. She disposed of the firearm in a dam. The body was found by a neighbour on 20 September.

On 12 September the appellant took her son out of school, and on 14 September she left the campsite, taking the deceased’s car and cheque book and writing cheques for herself, which she cashed locally. She travelled to Rockhampton, where police spoke to her on 23 September.

The critical issue for the jury was whether the appellant intended to kill the deceased or do him grievous bodily harm. The primary basis on which it was said that she did not have such an intent was that she was intoxicated. Although there was really very little evidence of intoxication, in due course the trial judge gave the appellant the benefit of a direction on intoxication.

As the High Court explained in Edwards v R (1993) 178 CLR 193, the telling of a lie usually goes only to credibility. However, in limited circumstances the telling of a lie by an accused person can amount to an implied admission because it is evidence of consciousness of guilt of the offence charged. When it does amount to such an implied admission, it may be used to strengthen the prosecution case or as corroborative evidence. The Court went on to discuss what directions a trial judge should give a jury where the telling of a lie is said to constitute an implied admission because it was told out of a consciousness of guilt. In Zoneff v R (2000) 200 CLR 234 the High Court stressed that as a general rule an Edwards type direction should only be given if the prosecution contends that a lie is evidence of guilt, in the sense that it was told because the accused knew that the truth would implicate him in the commission of the offence and if, in fact, the lie in question is capable of bearing that character. There may be cases in which the risk of misunderstanding on the part of the jury as to the use to which they may put lies is such that a trial judge should give an Edwards type direction notwithstanding that the prosecutor did not put that the lie had been told out of consciousness of guilt. See p 244 per Gleeson CJ, Gaudron, Gummow and Callinan JJ.

In the present case, before counsel began their addresses, the trial judge discussed the appropriate directions with them in the absence of the jury. The prosecutor submitted that the trial judge should give a direction in accordance with Edwards in respect of lies told by the appellant, namely “her account that she’d left the accused [sic] in good health on the 14th and the lies which are associated with that”. (Trial transcript p 445 lines 10 - 15.) The trial judge expressed reservations about giving an Edwards direction. (Trial transcript p 449 lines 40 - 50; p 456 about line 55.) The prosecutor foreshadowed speaking at some length about the appellant’s dishonesty, saying that he would not be suggesting to the jury that they should conclude that lies told by her were “positive evidence of guilt”. He suggested to the trial judge that the jury should be warned that they could not use the lies as direct evidence of guilt. The trial judge said he would see what the prosecutor had to say. (Trial transcript p 457 at lines 1 - 20.)

The prosecutor described the appellant’s conduct after the shooting as characterised by cunning, albeit imperfect cunning, and a pattern of calculated deceit. In the course of his address he identified 23 lies told by her after the deceased was shot. 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. He did not use the language of “consciousness of guilt”.

Defence counsel submitted to the jury that there was really only one big lie, which the prosecutor had sought to “subdivide … down into a whole lot” (trial transcript p 519 about line 35), and that that one big lie was indicative of no more than an awareness that she had killed the deceased.

In his summing up the trial judge told the jury that they might think she had told the police “a pack of lies” at the outset of her interview with them: he did not identify each lie, but reminded the jury that the prosecutor had done so. He told the jury that they might think she had told her neighbour Crozier various lies about the deceased (which he identified in general terms) when he visited her on 11 September. He then turned to the use which the jury might make of the lies, if they concluded they were such. His direction followed Edwards at pp 210 - 211 fairly closely. In the course of doing so he said:-

“However, it would be quite wrong for you to approach the case on the basis that if the accused told lies, she must be guilty of the offence charged or the alternative of manslaughter.

…

It is for you to decide whether she was deliberately trying to create an aura of distancing herself from the killing which had occurred on 9 September as Mr Martin [the prosecutor] suggested to you.

If you conclude that those lies were told and were motivated by a consciousness of guilt in respect of this offence, well you may reach a conclusion that the telling of those lies was indicative of guilt. If you do not, of course, accept they are lies or do not accept they are made in consciousness of guilt in respect of this offence then you may not use them in that fashion.”

(Trial transcript pp 553 - 555.)

Subsequently he redirected the jury as follows:-

“Now, I gave you some directions about the use you could make of lies in consciousness of guilt. I direct you this way. Before you can use the lies as evidence of a consciousness of guilt of the crime of murder you must be satisfied that they were designed to cover or conceal the offence of murder rather than an offence such as manslaughter. In other words you might think in this case that the lies could only be used as a consciousness of guilt of a killing, not of either murder or manslaughter, just of a killing. That is, she said these lies because she had killed the accused [sic]. Not because she had murdered him necessarily but because she had killed him.”

(Trial transcript pp 573 - 574.)

On appeal counsel for the appellant submitted –

that an Edwards direction ought not to have been given;

that the direction given was defective because it failed to particularise the lies; and

that the direction was defective in that it left open the possibility that the jury would reason that the lies were indicative of a consciousness of guilt of murder.

Ought the trial judge to have given an Edwards direction?

Ultimately the decision whether to give the jury a direction about lies, and if so, the terms of that direction, was one for the trial judge, notwithstanding that the prosecutor had not put that the lies had been told out of a consciousness of guilt of murder: Zoneff v R at p 245 per Gleeson CJ, Gaudron, Gummow and Callinan JJ; pp 256-257 per Kirby J. The jury may well have been in doubt as to the use they could make of a finding that the appellant had told lies, and there was a not insubstantial risk that they would reason that the lies were indirectly probative of her guilt of murder. In the final analysis the prosecutor did not rely on the lies as doing any more than reflecting on the appellant’s credibility, and so an Edwards type direction was unnecessary. It would have been appropriate to give the jury a general direction that the significance they attached to a conclusion that she had lied was a matter for them, but that they should not conclude that simply because she had lied she was guilty of murder: cf Zoneff at p 245 per Gleeson CJ, Gaudron, Gummow and Callinan JJ; p 257 per Kirby J; Richens (1994) 98 Cr App R 43 at pp 50 – 51 per Lord Taylor CJ.

While a full Edwards direction was unnecessary, it did not prejudice the appellant. The thrust of the prosecutor’s submission may have been lost on the jury, as he did not put his point succinctly. In those circumstances, the trial judge’s decision to spell out the strictures on using lies as evidence of guilt of the offence charged was at least neutral, if not favourable to the appellant.

The failure to particularise the lies

In Edwards Deane, Dawson and Gaudron JJ said at pp 210 – 211:-

“Thus, in any case where a lie is relied upon to prove guilt, the lie should be precisely identified, as should the circumstances and events that are said to indicate that it constitutes an admission against interest.”

However, the direction must be moulded to the requirements of the particular case. What is important is that there be an identification of the lies. There is no necessary vice in a trial judge adopting the identification made by the prosecutor without repeating the lies seriatim. Here 23 lies were precisely identified by the prosecutor, and for the trial judge to have enumerated them seriatim would have been to give them undue prominence, to the potential prejudice of the appellant. There was no error in failing to particularise the lies.

Possible use of lies as indicative of consciousness of guilt of murder

The direction at pp 522 – 555 of the trial transcript was deficient in that it was not made sufficiently clear that the jury needed to be satisfied 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 (for example, manslaughter). See Richens, which was concerned with lies told by a defendant in a case where the issue was murder or manslaughter by reason of provocation, at pp 50 - 51. However, this deficiency was adequately remedied in the redirection (as counsel for the appellant all but conceded: Court of Appeal transcript p 6 lines 1 - 2).

On appeal it was submitted that the redirection left open the possibility that the jury would reason that the lies were indicative of a consciousness of guilt of murder. That possibility arose from the prosecutor’s address, which was to the effect that her memory and conduct were consistent with an understanding of the event, and accordingly there was a risk the jury would conclude that the lies were told out of a consciousness of guilt of murder. For the reasons I have already given, I do not think that there was prejudice to the appellant in the circumstances.

Application of the proviso – Criminal Code section 668E(1A)

The Crown case was very strong. The deceased was shot in the back of the head at close range. The appellant made admissions to the police, including an admission that she had picked up the loaded rifle, and “Part of me was saying ‘Don’t, don’t’. The other part was saying, ‘Do it’.” She admitted shooting the deceased and that he fell down, saying he loved her and asking her why she had shot him. She admitted saying that she did not know and shooting him again. (On the evidence it was not clear whether one or two gunshot wounds were inflicted.) She said she was not drunk. (Trial transcript p 282 about line 30 – p 284 about line 20.) There was very little evidence of intoxication to cast doubt on her having formed the relevant intent. The prosecutor addressed the jury in such a way that the giving of an Edwards direction, while strictly unnecessary, was not prejudicial to the appellant.

In all the circumstances, I consider there was no substantial miscarriage of justice, and I would dismiss the appeal.