Grounds 1, 2 and 3 and the Weight to be Given to the Jury's Advantage
- The task of this Court is to consider the whole of the evidence. The applicant's submissions as to an unreasonable verdict focus on LP's evidence which is fundamental to the Crown case against him.
- The jury had the opportunity of seeing and hearing LP in the witness box over almost five and a half days which included about four days in cross-examination. The applicant submitted that the weight to be given to the jury's advantage of seeing LP in evidence should be diminished because of the errors in the summing up which are the subject of the applicant's complaints in Grounds 1, 2 and 3. The applicant cited Popovic v R; Hristovski v R; Bubanja v R; and Koloamatangi v R [9] where R A Hulme J at [278]-[279] observed that misdirection to a jury or to a finding that there has been a miscarriage of justice may result in the weight to be attributed to the jury's verdict being relatively slight and in some circumstances being excluded altogether.
- In order to consider this submission, it is necessary to consider Grounds 2 and 3 which arise from what was said by the trial judge to the jury in the passages quoted at [113] above.
- In Ground 3, the applicant contended that by instructing the jury that the applicant also made a number of statements "distancing himself from the crime alleged", his Honour raised a consciousness of guilt on the applicant's part which was unfair and no curative directions were made of an Edwards [10] kind.
- In my view, there is no merit in this ground of appeal. His Honour was merely reminding the jury that the applicant in his ERISP had made statements which distanced himself from responsibility for the death of the deceased and provided the example of the applicant's denial that he told LP to stop administering insulin to the deceased. His Honour had earlier directed the jury that the applicant "is entitled to rely upon [the account given in the recorded interview with police] and asks you to take it into consideration with the other evidence called by the Crown. The [applicant] is not required to prove that this account is true. The Crown in discharging its obligation to prove the [applicant's] guilt, must satisfy you that it is a version of events that could not reasonably be true."
- His Honour did not invite the jury to reason that the applicant was conscious of his guilt and an Edwards direction was not required. Ground 3 should be dismissed.
- Ground 2 directs attention to the trial judge's instruction to the jury that they were "entitled to give less weight to the exculpatory statements than you give to the admissions" made by the applicant. The applicant submitted that these instructions were unnecessary and undermined his case. However, the trial judge went on to say, "The weight which you give to each part of what the [applicant] said at his interview, should be determined by you in light of all the evidence given in the trial."
- What his Honour said was consistent with The Bench Book under the heading "Admissions to Police" which contains the following passage:
"A judge is entitled to direct the jury that evidence of pre-trial exculpatory statements of an accused could be given less weight than inculpatory admissions in the absence of testimony from the accused at trial but it is for the jury to determine the weight to be given to parts of the evidence: Mule v The Queen (2005) 79 ALJR 1573 at [21]ff." [11]
- The applicant argued that this "entitlement" is not found in Mule v The Queen ('Mule') [12] and The Bench Book is incorrect.
- The Crown, on the other hand, referred to the following passages in Mule where the High Court of Australia (Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ) said at [22]:
"… As an observation on the facts, in the circumstances of this case, it was not inappropriate to point out that, while the admissions of possession were accepted by both sides at the trial to be true, the assertions about purpose were in dispute, that they were not supported by any sworn testimony and that they were self-serving. It would also not have been inappropriate to point out that the jury might think them to be of less weight than the admissions."
- Nevertheless, reliance was placed by the applicant on the passage that followed in Mule at [23]:
"As has been noted, many cases involving evidence of out of court "mixed" statements by an accused person are more complex than the present. In R v Cox, Thomas J rightly cautioned against inappropriate generalisations concerning the difference between inculpatory and exculpatory parts of a statement: a difference that in some cases (not including the present) might be difficult to discern." (Footnotes omitted.)
- The applicant also pointed to the observations of Edelman J (at [59]) in Nguyen v The Queen ('Nguyen') [13] in respect of "mixed statements" footnoting Mule at [23]:
"…And, contrary to the approach in England, which countenances a usual direction by the trial judge that "incriminating parts are likely to be true (otherwise why say them?), whereas the excuses do not have the same weight", such a general statement has been held in Australia to be an "unwise" direction and an "undesirable" one to the extent that it expounds traditional reasons why admissions against interest are commonly regarded as reliable evidence." (Footnotes omitted.)
- However, in Nguyen, the plurality (Kiefel CJ, Bell, Gageler, Keane and Gordon JJ) also footnoting Mule at [25] said at [24]:
"Howsoever mixed statements come to be admitted into evidence they are invariably subject to a direction to the jury that they may give less weight to exculpatory assertions than to admissions and that it is for them to decide what weight is to be given to a particular statement. The rationale for the direction is that exculpatory statements are not statements made against interest, are not made on oath and are not subject to cross-examination." (Footnotes omitted.)
- It is unnecessary to resolve the debate about the correctness of The Bench Book. In my view, it might be prudent for the authors to add that caution should be exercised before instructing the jury in a way which suggests that inculpatory statements should be given more weight than exculpatory statements, particularly when the out-of-court statements may be mixed and complex.
- This was not the case in the applicant's ERISP as his statements of denial were clear and uncomplicated. In my view, his Honour did not err in giving the direction and Ground 2 should be dismissed.
- The applicant's success is confined to Ground 1. In these circumstances, the weight to be attributed to the jury's advantage of seeing and hearing LP's evidence is not substantially reduced.
- Notwithstanding the jury's assessment that the evidence of LP was honest and reliable, the question remains whether there are inconsistencies, discrepancies and inadequacies upon an examination of the record which leads to the conclusion that the jury, acting rationally, ought to have entertained a reasonable doubt as to the applicant's guilt.