The Queen v Stone

2 The prosecution case is that the accused doused the deceased in the flammable liquid on or around the rear porch of their house before setting fire to him. The prosecution case is largely circumstantial but also relies upon alleged admissions made by the accused to neighbours a few days after the incident in which she said words to the effect of 'I did it. I killed him'. It is alleged that the accused also told her neighbours that she got the deceased drunk and, when he went to go to sleep on a mattress or bed, poured petrol on him and 'lit him up'.

3 The prosecution will also lead evidence of a conversation the deceased had with a police officer in the ambulance immediately after the incident. In that conversation the deceased told the police officer that he was attacked by a man who was with two other males, and that they were the same three males that had attacked him and the accused a few weeks prior.

4 It is the prosecution case that this did not accurately represent events which led to the death of the deceased. It is the defence case that it did.

5 On 20 December 2016, the accused gave a written statement to police[1] in which she detailed an incident three weeks prior in which three men attended at her home and threatened her and the deceased with a knife. She said that one of those men told her his name was Jason Baxter and that she knew another as 'Gibbo'. She did not know the name of the third man. She gave comprehensive physical descriptions of each of these three men.

6 In that statement the accused also said that on the night of the incident, she saw a sensor light flicker in the backyard and heard a voice she recognised as belonging to Jason Baxter making threats. She and the deceased went out the back door and walked to the rear shed in the yard. There she saw Jason Baxter with a tin of petrol belonging to her and the deceased in one hand and the red cap to the tin in the other. Mr Baxter was only about a step away from her and the deceased. The accused also said that Gibbo was standing next to Mr Baxter. She described the clothing and appearance of both Mr Baxter and Gibbo. She said a third male was there, but could not describe him.

7 The accused continued that, without warning, Mr Baxter threw petrol on her and then doused the deceased. They were all standing close together. Mr Baxter then sparked a red Bic lighter and put it close to the deceased's body. The accused said she heard a 'whoosh' sound and then the deceased's whole body was on fire. The deceased ran inside and she followed him.

8 The accused stated that she suffered a burn to her left arm and another burn to her left top thigh, but thought that she sustained those injuries when she was trying to extinguish the deceased.

9 The accused also provided the clothing she was wearing at the time of the incident to police.

10 Acting upon the information provided by the accused, the police arrested Mr Baxter, Paul Gibson and another man on 19 December 2016. All denied involvement in the incident.

11 While the accused gave a physical description of Mr Gibson, she made no reference to the large white plaster cast he was wearing on his left arm (from shoulder to wrist) at the time of the incident and, on 20 December 2016, she failed to identify his photograph from a photo board. Also on 20 December 2016, the accused failed to identify Mr Baxter from a photo board.

12 The description given by the accused of Jason Baxter was inconsistent with Mr Baxter's actual appearance and police investigated the possibility that the accused had been describing a man called Benjamin Thatcher.[2] The accused was shown a photo board containing an image of Mr Thatcher and identified him as the offender 'Jason Baxter'. Mr Thatcher was in fact in custody at the Melbourne Assessment Prison at the time of the incident.

13 Forensic investigation of the crime scene established that the seat of the fire was at the rear porch of the property and not at an area near the rear shed. There were burn marks on the porch and ground and charring to a wooden bed frame and post on the porch.

14 The accused was arrested on 4 January 2017 and charged with the murder of the deceased.

15 Pursuant to s 19(1) of the Jury Directions Act 2015,[3] the prosecution filed a Notice of its intention to adduce evidence of conduct it proposes to rely upon as evidence of incriminating conduct.

16 In its original format the Notice detailed two species of evidence of incriminating conduct: lies told by the accused in describing the circumstances of the deceased's death, and the accused's authorship of a letter purporting to be under the hand of Amanda Thatcher and which implicates Mr Baxter in the death of the deceased. Following a voir dire hearing in which Ms Thatcher gave evidence, the prosecution withdrew the second species from the Notice.

17 Accordingly, the prosecution characterises the following five statements as lies told by the accused about the incident, and as evidence it proposes to rely upon as evidence of her incriminating conduct:

(a) that three males nominated at different times as some combination of Jason Baxter, Benjamin Thatcher, Gibbo and another unknown male attended at her address;

(b) that she and the deceased confronted three males in the well-lit back yard outside the shed;

(c) that Mr Baxter/Mr Thatcher held a fuel can from the shed in one hand with the red lid in his other hand;

(d) that Mr Baxter/Mr Thatcher splashed both the accused and the deceased with fuel from the can and set alight the deceased after producing a red Bic lighter; and

(e) that the accused and deceased were in close proximity when the deceased was set alight.

18 The accused argues that on the basis of the evidence as a whole, the nominated evidence of conduct cannot be reasonably capable of being viewed by the jury as evidence of incriminating conduct. Particularly, the accused submits that any finding to the contrary would necessarily engage 'bootstraps reasoning' because the jury would need to assume that the accused had committed murder for the purpose of deciding whether the statements she has made are in fact lies. In this regard the accused relies upon this Court's decision in R v Sirillas.[4]

19 The accused further contends that on the evidence as a whole no reasonable jury could find that her statements were deliberate lies, particularly given the 'dying declaration' of the deceased. That is, as there is cogent evidence to support her version of events, the jury could not find that the only reasonable explanation of her conduct was that she held the belief that she had committed the offence charged.[5] Rather, the accused's reasonable explanation is consistent with innocence and should be categorised as intractably neutral.[6]

20 In short, the accused contends that her statements are nothing more than a denial of guilt and, if the prosecution were permitted to rely upon the alleged lies as evidence of incriminating conduct, it would amount to a reversal of the onus of proof.

21 The prosecution submits that the conduct it relies upon as incriminating conduct does not necessitate bootstraps reasoning. It is not necessary to assume that the accused is guilty to establish each of the statements relied upon as a lie. There is independent evidence upon which the jury could conclude that the accused had lied. The prosecution points to evidence establishing that the men the accused said attended her house were not there, evidence that the backyard was not well lit at the time of the incident and forensic evidence that she was not doused in petrol and could not have been standing next to the deceased at the time he was set alight. And, the prosecution submit that its intended reliance upon evidence of incriminating conduct does not reverse the onus of proof.

22 Pursuant to s 20 of the Act, this application falls to be decided on whether I determine that, on the basis of the evidence as a whole, the evidence of the conduct is reasonably capable of being viewed by the jury as evidence of incriminating conduct.[7]

23 Both 'conduct' and 'incriminating conduct' are defined terms in the Act.[8] 'Conduct' relevantly means the telling of a lie by the accused which occurs after the events alleged to constitute an offence charged. 'Incriminating conduct' relevantly means conduct that amounts to an implied admission by the accused of having committed an offence charged or an element of an offence charged.

24 In my view the conduct relied upon by the prosecution as lies is far more than a general or bare denial of guilt by the accused. Rather, it is a detailed account of how the deceased died, and who is responsible for his death. Based upon all of the evidence to be led in the trial, the jury could well regard the accused's version of events as a series of deliberate lies notwithstanding the account given by the deceased to the police officer in the ambulance. There is no danger of bootstraps reasoning when other aspects of the evidence are considered. Those include, but are not limited to, the forensic evidence of the fire scene examination, evidence that at the relevant time the backyard was in darkness, and the alleged admissions made by the accused to neighbours a few days after the incident. In short, there is ample evidence upon which the jury could be satisfied that the accused's multi-faceted statement as to how the incident took place was deliberately false. And, the jury could rationally conclude that the only reasonable inference to be drawn from that conduct is that she believed she had committed the offence charged.

25 Nor is the reliance by the prosecution upon the accused's conduct as evidence of incriminating conduct a reversal of the onus of proof. The jury will be given the mandatory direction in s 21 of the Act and also, potentially, the additional direction in s 22.

26 Further, it is incumbent upon the prosecution to mount an attack on the alternative theory of the case advanced by the defence in order to discharge its burden to exclude all reasonable hypotheses consistent with the accused's innocence. Put in the alternative, the prosecution must exclude all reasonable explanations inconsistent with the accused's guilt of the charge. That is what the burden and standard of proof which rests upon the prosecution requires. The evidence of incriminating conduct, if accepted by the jury as such, is but one strand in the prosecution's circumstantial case by which it seeks to do so.

27 Accordingly, the prosecution will be permitted to rely on the conduct specified in its notice as lies told by the accused describing the circumstances of the deceased's death as evidence of incriminating conduct.

[1] Which formalised information already provided.

[2] There were reasons to believe that Mr Thatcher may have been involved in the incident in which three men attended at the home of the accused and deceased about three weeks prior.

[3] Jury Directions Act 2015 (Vic), _('_the Act).

[4] [2006] VSCA 234, [19] (Neave JA).

[5] Maher v The Queen [2017] VSCA 381, [34].

[6] R v Rapovski (Ruling No 1) [2015] VSC 152; R v Ciantar [2006] VSCA 263; (2006) 16 VR 26.

[7] In addition to the authorities relied upon by the accused, I have considered Edwards v R [1993] HCA 63; (1993) 178 CLR 193, The Queen v Russo [2004] VSCA 206; (2004) 11 VR 1, DPP v Zhuang [2014] VSC 276 and DPP v Scriven (Ruling No 4) [2015] VSC 220.