Xypolitos v The Queen [2014] VSCA 339

Court of Appeal (Vic)|2014-12-18|Before: Curtain J, Redlich JA, Tate JA, Priest JA

The applicant submits that this direction caused the trial to miscarry, for the following reasons.

72 First, it is argued that the circumstances in which silence in the face of a police investigation can amount to an admission are rare,[31] and that it was not open to the prosecution to invite the jury to treat the applicant's failure to report the killing of the deceased to police as an implied admission. The trial judge, it was said, should not have lent her imprimatur to such a submission. Second, the applicant submits that his silence did not attract the 'doctrine of adoptive admission', as no accusation was made in his presence to which he might reasonably be expected to have responded.[32] Thus it was submitted that it was error to have instructed the jury that it could draw an adverse inference of guilt from the failure to report the death of the deceased. They should have been directed that such evidence bore only upon the credibility of the applicant's account to police and the veracity of his claim that he acted in self-defence, and did not itself constitute evidence of the applicant's guilt.[33]

73 Further, the applicant submits that while the jury were directed in clear terms that they could treat only the post-offence conduct, specifically evidence identified by the trial judge, as incriminating evidence, they were given little or no instruction as to how to treat evidence of other post-offence conduct of the applicant. Complaint is made that they were not instructed that such other evidence bore only upon the applicant's credit. The risk which thereby arose, it is submitted, is that the jury interpreted the direction extracted above as meaning that they could use such evidence as part of the overall case against the applicant, or as evidence of his guilt.

74 The last of these matters may be immediately disposed of. The trial judge dealt comprehensively with the evidence of each piece of post-offence conduct that was said by the Crown to support an inference of guilt. We do not accept that the instructions left open the risk that the jury could have used post-offence conduct that had not been so identified as evidence supporting an inference of guilt. Defence counsel saw no such risk and took no exception. This complaint is without merit.

75 If any of the impugned directions were in error, trial counsel was required by s 11 of the Act to request directions that remedied the error. This he did not do. As we have said in dealing with ground 1, the failure to request further directions would ordinarily be fatal. As we are of the view that there was no error in any of the directions the subject of complaint, it is unnecessary to consider further the consequence of counsel's failure to take objection and request further directions.

76 We turn to the contention that the applicant's right to silence precluded the drawing of any adverse inference of guilt. In R v Russo,[34] the applicant successfully appealed against his conviction for the murder of his parents. The Crown's case had been entirely circumstantial, depending largely upon alleged lies and conduct on the part of the applicant which were said to be evidence of consciousness of guilt. Those lies and conduct included, relevantly, the applicant's failure to mention to police during a number of very lengthy interviews in which he had provided a detailed account of his actions, that he had moved a small safe from its location near his father's body, allegedly for the purpose of clearing the way for ambulance officers. The applicant argued that while the movement of the safe could be regarded as demonstrating consciousness of guilt, his failure to mention it to police could not be so regarded. Nettle JA agreed, quoting R v Smith, Ashford and Schevella,[35] to the following effect:

[T]his 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 question as those not to be answered as evidence of guilt. ...

In the later case of [R v] Bruce, Gray J, speaking on behalf of the Court, after a discussion of the case law, said...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'.[36]

77 In R v Cuenco,[37] the proposition stated in Russo was clarified and qualified, it being implicitly recognised that Russo went too far. In Cuenco, Nettle JA stated as follows:

The law is that it is forbidden to use an accused's silence, at least after caution, as an admission which could itself provide evidence against him. But that does not mean that the deliberate omission of facts from a statement made by an accused to police cannot ever be treated as indicative of guilt. An accused's conscious omission of events from a detailed account that he provides may provide a basis for drawing an inference of a consciousness of guilt and, if an accused makes a positive statement to police that he cannot remember an event, or that he has no recollection of it or the details of it, it may well constitute evidence which in combination with other evidence is capable of amounting to evidence of consciousness of guilt.[38]

78 The applicant's reliance upon this line of authority in support of the contention that his failure to inform anyone of the death of the accused in his presence cannot be evidence of consciousness of guilt is misconceived. Both Russo and Cuenco dealt with circumstances in which it was the accused's failure to mention certain facts to police during the investigative process that was in issue.[39] The applicant's right to silence, and the prohibition against drawing adverse inferences from its exercise, does not extend beyond the investigative context where a caution is administered. There was nothing that stood in the way of an adverse inference being drawn from the applicant's failure to inform anyone about the victim's death or what he had done with the victim's body. Furthermore, this was not a case of silence simpliciter. The applicant did not merely remain silent about what he had done. He told lies so that his involvement in the death would not be discovered. As Cuenco shows, once an offender provides a positive account of relevant matters within his knowledge, the fact that he omits other relevant facts may, depending upon the circumstances, support incriminating inferences.

79 On the hearing of the appeal, these conceptual obstacles were drawn to the attention of counsel. The argument was then narrowed, counsel only contending that no positive obligation existed for the applicant to report to police that he had killed the victim. In Mocenigo v The Queen,[40] the applicant advanced a similar argument that certain lies and post-offence conduct, including, relevantly, the failure to notify the police of the death of the victim in the applicant's presence, along with the disposal of her body, could not constitute evidence of consciousness of guilt. Priest JA (Buchanan and Neave JJA agreeing) disagreed, stating that the lies and post-offence conduct in question were capable of use by the jury in determining whether the applicant had implicitly admitted involvement in the unlawful killing of the deceased.[41]

80 It is right to say that there is no positive obligation upon an accused to confess. But where in the ordinary course of human affairs one would expect a person to inform others of an exceptional occurrence, the circumstances may permit the drawing of an adverse inference from the failure to do so. The applicant's failure to inform others, such as family and police, who had an immediate interest in the whereabouts of the deceased, as to his death and the destruction and disposal of his body, coupled with the lies told about the deceased's whereabouts, provided ample basis for the inference that his silence disclosed a realisation of his guilt of the crime charged amounting to an implied admission.

82 The applicant seeks leave to appeal on the ground that the sentence imposed was manifestly excessive, in that:

The learned sentencing judge placed undue weight upon the applicant's post-offence conduct when assessing the gravity of the offence;

The learned sentencing judge erred in characterising the offence as a 'particularly savage assault'; and

The learned sentencing judge erred in giving undue weight to specific deterrence.

83 The applicant, whilst acknowledging that his post-offence conduct was clearly aggravating, submits that her Honour placed undue weight upon that post-offence conduct in assessing his moral culpability. It is submitted that the offending itself, while serious, was not, as described by her Honour, 'an extremely serious example of the most serious of offences.'[42] This is so, the applicant argues, because the offending was spontaneous, occurred quickly, and did not involve the kind of aggravating features which might have attracted a sentence of this order. The applicant cites Director of Public Prosecutions (Vic) v Borg,[43] in which the accused was resentenced on a Director's appeal to 28 years' imprisonment for murder.[44] In that case, this Court found that insufficient weight was attributed to the fact that the murder was a cold-blooded execution, planned well in advance and carried out for the purpose of protecting the profits from a significant criminal enterprise, after which the offender had brutally degraded the victim's body in an attempt to conceal the crime.[45]

84 The applicant's post-offence conduct was undeniably significant for sentencing purposes. The destruction and concealment of the victim's body, the applicant's continued denial over a very protracted period of any knowledge of the circumstances surrounding his disappearance, and his continued association with the victim's mother including the search for her son, rendered this a particularly grotesque example of relevant, ongoing post-offence behaviour. The sentencing court was also justified in taking into account the grief and trauma which the deceased's family suffered upon discovering the gruesome fate of their loved one's remains.[46] There can be no doubt that the victim's mother, in particular, must have been profoundly distressed by the revelation of the circumstances of the applicant's disposal of the body.

85 We reject the applicant's contention that the judge erred in characterising the offending as a 'particularly savage assault'. Although the attack itself was not of a lengthy duration, the manner in which it occurred was savage indeed, with the applicant deliberately aiming several blows at the victim's head with a hammer, with the intention of causing catastrophic injuries.

86 We are similarly unconvinced by the argument that undue weight was given to specific deterrence. The applicant had only one prior conviction, dating back to 1993, but that conviction was highly relevant, involving as it did a violent and potentially life-threatening assault in a domestic context (the applicant fired a shot through the window of a home in which his ex-partner lived).[47] This fact, considered alongside the applicant's lack of remorse and poor prospects of rehabilitation,[48] (both of which findings are unchallenged on this appeal), and the lack of any real discernible motive for the offending, renders her Honour's reliance upon specific deterrence entirely appropriate.

87 If the sentencing judge's characterisation of the applicant's offending as 'an extremely serious example of the most serious of offences' is taken to mean that the offending fell into the worst category of murders, then this is not so; this was not a case, like Borg, in which the murder was coldly premeditated and committed for reward. However, we are content to assume that her Honour did not mean that. The characterisation of this as an 'extremely serious' murder is, in our view, correct, given the youth of the victim, the applicant's position of responsibility towards him, the brutal nature of the attack, the dismemberment of the deceased's body and the protracted period of concealment of the applicant's crime.

88 However, the applicant correctly submits that sentences of the magnitude of that imposed on him are generally reserved for the worst instances of murder. The median length of sentence for murder between 2007-8 and 2011-12 (not including sentences of life imprisonment) was 19 years, with the most common sentence 20 to less than 21 years.[49] An unpremeditated murder such as that committed by the applicant would, in the absence of the aggravating post-offence conduct, be expected to receive a sentence of that broad order, usually in a case where the offender has pleaded guilty. The question which then arises is whether the applicant's substantially higher sentence is justified by the fact that he is not entitled to a discount for his plea of guilty, and by his post-offence conduct.

89 In our view, it cannot be said that the sentence was beyond a sound exercise of the sentencing discretion. It is established that post-offence conduct, including that involving mistreatment of a corpse, will certainly aggravate the offence of murder.[50] There is no question that the applicant's conduct was abhorrent and warranted a significant increase in the sentence that should otherwise have been imposed. Moreover, the applicant is not entitled to any discount for a plea of guilty and has exhibited no remorse.

90 We refuse the application for leave to appeal against sentence.

[3] Ibid 356. See also R v Caine (1990) 48 A Crim R 464, 475; R v Roberts [2001] NSWCCA 163; (2001) 53 NSWLR 138.

[5] See Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79, 86; Bromley v The Queen [1986] HCA 49; (1986) 161 CLR 315, 319, 323-5; Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314, 330; Robinson v The Queen [1999] HCA 42; (1999) 197 CLR 162, 168-9; Tully v The Queen (2006) 231 ALR 712.

[7] Ibid 605 (Winneke P, Charles and Callaway JJA).

[8] R v Kotzmann [1999] VSCA 27; [1999] 2 VR 123, 146-7; Sumner v The Queen (2010) 29 VR 398, 403. See also Rich v The Queen (2014) 312 ALR 429, 475; R v Ciantar [2006] VSCA 263; (2006) 16 VR 26, 66-8.

[10] Ibid; Andelman v The Queen [2013] VSCA 25; (2013) 38 VR 659..

[12] Victoria, Parliamentary Debates, Legislative Assembly, 13 December 2012, 32 (Robert Clark, Attorney-General) (emphasis added).

[18] [2013] VSCA 174 ('Tunja').

[23] Mule [2005] HCA 49; (2005) 79 ALJR 1573, 1578-9 [21]-[22], 1580 [25].

[25] Ibid [3]-[4] (citations removed).

[26] Ibid [12]-[18] (citations removed) (emphasis added, emphasis in original removed).

[27] [2014] HCATrans 89 (11 April 2014).

[29] R v Rudd [2009] VSCA 213; (2009) 23 VR 444, 448, 454-5 (Redlich JA); Tunja v The Queen [2013] VSCA 174, [2]-[4] (Maxwell P and Weinberg JA), [68]-[71] (Priest JA); Burns v The Queen [1975] HCA 21; (1975) 132 CLR 258, 261-2 (Barwick CJ, Gibbs and Mason JJ); cf Mule [2005] HCA 49; (2005) 79 ALJR 1573.

[30] [2009] VSCA 213; (2009) 23 VR 444, 453-5 (citations removed).

[31] Citing R v Russo [2004] VSCA 206; (2004) 11 VR 1, 2 (Winneke P), 11-12 (Nettle JA); cf Woon v The Queen [1964] HCA 23; (1964) 109 CLR 529; Brain v The Queen [2010] VSCA 172; R v Cuenco [2007] VSCA 41; (2007) 16 VR 118.

[32] Citing R v MMJ [2006] VSCA 226; (2006) 166 A Crim R 501, 516-17 [52]-[55] (Buchanan JA), 519 [64]-[65], 522 [85] (Ashley JA), cf 505-6 [18]-[19] (Warren CJ).

[33] Citing R v Russo [2004] VSCA 206; (2004) 11 VR 1 (Winneke P); R v Renzella [1997] 2 VR 88, 91.

[36] R v Smith, Ashford and Schevella (1990) 50 A Crim R 434, 457; cited in R v Russo [2004] VSCA 206; (2004) 11 VR 1, 11 (Nettle JA).

[39] The same is true of Brain v The Queen [2010] VSCA 172, also cited by the applicant; see also Woon v The Queen [1964] HCA 23; (1964) 109 CLR 529.

[42] R v Xypolitos (Unreported, County Court of Victoria, Curtain J, 6 December 2013) ('Reasons') [38].

[43] [2013] VSCA 181 ('Borg').

[44] As well as a sentence of 12 months' imprisonment for handling stolen goods, and three years' imprisonment for cultivating a narcotic plant. The total effective sentence imposed on appeal was 28 years and nine months' imprisonment.

[45] Borg [2013] VSCA 181, [20].

[46] R v Kellisar [2001] VSCA 224, [7].

[49] Sentencing Advisory Council, Snapshot 140: Sentencing Trends for Murder in the Higher Courts of Victoria (2013) 4.

[50] See, eg, DPP (Vic) v England [1999] VSCA 95; [1999] 2 VR 258.

Jury Directions Act 2013

CRIMINAL LAW - Murder - Appeal against conviction - Whether trial judge's failure to give a direction about a 'mixed statement' containing inculpatory and exculpatory material constituted a substantial miscarriage of justice - R v Rudd [2009] VSCA 213; (2009) 23 VR 444 - Whether direction conveyed that jury bound to give exculpatory statements less weight - R v Mule [2005] HCA 49; (2005) 79 ALJR 1573, R v Tunja [2013] VSCA 174, followed - Weight to attribute to various parts of the 'mixed statement' made clear by judge's comprehensive charge.

CRIMINAL LAW - Murder - Right to silence - Post-offence conduct - Whether applicant's failure to mention the victim's death to police or others could be regarded as implied admission demonstrating consciousness of guilt - R v Russo [2004] VSCA 206; (2004) 11 VR 1 as qualified by R v Cuenco [2007] VSCA 41; (2007) 16 VR 118, distinguished.

CRIMINAL LAW - Jury Directions Act 2013 ss 10, 11, 13, 14 - Obligation of counsel to request directions - Act extends common law obligation - No temporal limitation on counsel's duty to request particular directions - R v Wright [1999] VSCA 145; (1999) 3 VR 355, affirmed - Section 11 renders a failure to seek a direction at trial fatal to an appeal point unless it can be shown under s 15 that the judge was obliged to give that direction - Judge's residual obligation to give directions unsought by counsel narrower than at common law - Judge must have concluded that the failure to give the direction would cause the trial to miscarry and vitiate any resulting conviction - Appeal court must determine whether trial judge should have so concluded - Meaning of 'substantial miscarriage of justice'.

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