SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2013 0249
| STEVE CONSTANTINOU | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | ASHLEY, WEINBERG and SANTAMARIA JJA | |
| WHERE HELD: | MELBOURNE | |
| DATE OF HEARING: | 11 June 2015 | |
| DATE OF JUDGMENT: | 2 July 2015 | |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 177 | 1st Revision: 2 July 2015, footnote 1. |
| JUDGMENT APPEALED FROM: | R v Constantinou [2013] VSC (Priest JA) | |
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CRIMINAL LAW – Conviction – Murder – Crown alleged appellant intentionally strangled victim to death – Defence case that victim had died by accident as a result of erotic asphyxiation – Prior representations made by appellant to his daughter somewhat consistent with defence case as ultimately presented – Trial judge queried counsel as to how such evidence was admissible – Counsel identified no basis for admissibility – Arguable that prosecutor subsequently cross-examined appellant and addressed jury on basis that erotic asphyxiation claim was product of recent fabrication – Whether substantial miscarriage of justice in circumstances where evidence of prior consistent statements not admitted – Evidence in fact admissible under s 66 and may also have been admissible under s 108(3) of Evidence Act 2008 – No application by counsel to adduce the evidence in re-examination – Decision not to adduce evidence product of legitimate forensic choice – No substantial miscarriage of justice – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr D A Dann | C Marshall & Associates |
| For the Crown | Mr B F Kissane QC | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
ASHLEY JA
WEINBERG JA
SANTAMARIA JA:
On 16 August 2013, a jury in the Supreme Court sitting at Melbourne found Steve Constantinou guilty of the murder of Johanna Martin (‘JM’ or ‘the deceased’) on 11 October 2011. He was convicted, and on 23 October 2013 he was sentenced to 24 years’ imprisonment with a non-parole period of 20 years’ imprisonment.
Grounds of appeal
On 28 April 2015, Weinberg and Santamaria JJA determined, on application by Constantinou (‘the appellant’), pursuant to s 315(2) of the Criminal Procedure Act 2009 (‘the CP Act’), that the appellant have leave to appeal on the following grounds:
2.The trial judge erred in excluding evidence of the appellant’s previous consistent statements.
5.The trial of the appellant miscarried as the Crown —
(a)cross–examined the appellant as to his prior inconsistent statements;
(b)went to the jury on the basis that the appellant’s evidence was a product of recent invention in circumstances where earlier prior consistent statements of the appellant were not admitted into evidence.
Unsatisfactory aspects of the appeal
The determination made by Weinberg and Santamaria JJA followed upon the refusal by Ashley JA, exercising the power conferred by s 315(1) of the CP Act, to grant the appellant leave to appeal against conviction.
We mention this sequence of events for the following reasons.
Ashley JA refused leave to appeal on an application which relied upon five grounds. But when the matter came on before Weinberg and Santamaria JJA, the appellant abandoned his reliance upon four of the five grounds, and sought to rely upon a new ground. All that was left of the original grounds was the ground numbered 2 set out above. In respect of that ground, as the appellant’s counsel frankly conceded on the renewed leave application, at least a new argument was raised.
Despite the circumstances just mentioned, before Weinberg and Santamaria JJA, counsel for the Crown specifically did not take the point that the new ground was not available on a s 315(2) application. He observed that it seemed to be ‘just an extension of ground 2’, even though the appellant’s counsel spoke of it ‘really replac[ing] ground 2’.
We think that there is a serious question whether a new ground can be raised on a s 315(2) application. On its face, the language of the provision appears to be against it. Furthermore, to permit a new ground to be raised strikes at the rationale of the appellate regime by which an applicant is required to identify his or her real grounds of appeal within 28 days of sentence, and file a supporting written case.[1] But, having regard to the concession made by counsel for the Crown on the renewal application, that question does not call for determination in this instance.
[1]See s 275(1) of the Criminal Procedure Act 2009, and r 2.05(4)(a) and (b) of the Supreme Court (Criminal Procedure) Rules 2008.
Grant of leave by Weinberg and Santamaria JJA was not the end of the matter. At the outset of the hearing of the appeal, appellant’s counsel conceded, in substance, that ground 2 was hopeless. The Court then revoked grant of leave on that ground. The end result was that the appeal proceeded only on the new ground raised on the renewed application for leave to appeal. That highlights the issue mentioned in the preceding paragraph.
There were other unsatisfactory aspects of this appeal.
First, the ground finally relied upon[2] did not distinctly reveal a complaint that trial counsel had conducted the matter incompetently.[3] But the Court discerned, from things said on the renewed application for leave to appeal, that such a complaint was made. It then, appropriately, put trial counsel on notice.[4]
[2]And, for that matter, ground 2.
[3]Albeit that, if such a complaint is raised, the question to be decided is whether, as it was conducted, the trial was rendered unfair, that a miscarriage of justice ensued.
[4]As to which see Knowles v The Queen [2015] VSCA 141, [141]–[146]. Trial counsel, we add, did not respond to the Court’s invitation to appear or to make representations otherwise.
Second, appellant’s counsel sought to rely upon a body of material — (a) of which no mention was made at trial; (b) which was not relied upon on the application determined by Ashley JA; and (c) which was not relied upon in the renewed application determined by Weinberg and Santamaria JJA. The material consisted of a number of transcripts of telephone conversations between the appellant and his daughter in the period 26 November 2011 to 16 February 2012. Counsel, however, sought to make only limited use of that material, and thus the problem of an attempt to conduct a new trial on appeal did not squarely arise.
Third, not until the matter was raised by the Court did the parties give any consideration to the possible relevance of s 66 of the Evidence Act2008 (‘Evidence Act’).
Preliminaries, prosecution opening, and defence response
In order to put the recitation of circumstances which follows into context, we should briefly refer to the competing positions of the parties, as known one to the other before evidence began.
When the trial began, the prosecution’s case was clear-cut: the appellant had intentionally strangled JM at his apartment shortly after midday on 11 October 2011. A possible motive for him doing so was that he was indebted to JM, that he did not have the money to repay her, and that he killed her when she asked him for repayment.
It is clear also that the prosecution was aware, when the trial began, that it was the defence case that the cause of JM’s death was erotic asphyxiation. The written defence response to the summary of prosecution opening showed that this was so. The death was said to have been accidental.
This theme was repeated by trial counsel for the appellant in discussion with the judge before the prosecutor’s opening. The appellant’s case was said to match up with what the Crown said with regard to use of a ligature in strangling JM.
In opening, the prosecutor outlined relevant circumstances, and in doing so focussed a good deal of attention upon various statements made by the appellant to the police in the period between 13 October and 23 November 2011. Those statements, to which we will later refer, obviously could not sit with the defence as articulated. One version of events which the appellant had given was that JM had strangled herself. A pathologist would give evidence that this was an impossibility.
In his oral response to the prosecutor’s opening, counsel for the appellant stated that it was not in dispute that JM’s death occurred as a result of compression of her neck ‘with a ligature of some sort’. Nor was it disputed that JM was the appellant’s ‘main source of money’ and that she had lent him a substantial amount. Nor was it disputed that the appellant had told the police lies. Nor again was it disputed that he had sold some of JM’s jewellery shortly after her death, and that he had put her body in a Port Melbourne street. But the question was, was this ‘an intentional cold-blooded murder for the sake of some $8500, or was this an innocent act gone wrong?’
It was inevitable, if the defence articulated in the written response was to be pursued, that the appellant would have to give evidence.
Circumstances — The prosecution case
The basic circumstances of the matter — drawn partly from evidence given by prosecution witnesses and partly from admissions made by the appellant which were verifiable — are as follows. The body of the deceased was found in an industrial area of Port Melbourne at about 2.15pm on 11 October 2011. Adjacent to where the body was found were car-park spaces. A single drag mark was observed. It extended from the kerb of a car-park space across the nature strip to where the body was found.
Post-mortem examination showed the cause of death to be neck compression.
The deceased was aged 65 at the time of her death and had long been employed in the adult entertainment industry, working under the name ‘Jazzy O’. She lived in South Melbourne.
The appellant, who was aged 48 at the time of JM’s death, was a self-employed handyman. When he first met JM, in early 2011, he was for the most part out of work. He had substantial debts. He owed a significant sum to the Sheriff’s Office.
Having met the deceased by chance, they struck up a friendship and had regular contact thereafter.
For part of the time that the appellant and JM were friends, the appellant was involved in a relationship with another woman. He told her, inter alia, that he had borrowed money from the deceased and had paid off his debts.
With respect to money loaned, the appellant’s evidence was to the effect that JM had lent him, in all, about $14,000 and that he had gambled most of it away. Other evidence showed that he had several times gone to the bank with JM whilst she withdrew money — this being, it seems, part of the $14,000 to which we have just referred.
The movements of the appellant and the deceased on 11 October 2011 were reconstructed by investigators, using witness accounts, telephone records, the GPS system in the appellant’s car and CCTV footage. The reconstruction, together with admissions made by the appellant, revealed the following.
The deceased left her apartment at about 9.40am on the day of her death, and drove off in her car. She telephoned the appellant on her mobile phone a little after 10.00am. That was the last call made on her phone.
The appellant attended a Bunnings store in Port Melbourne between 12.02pm and 12.06pm. He then returned to his Port Melbourne apartment.
JM died when at the appellant’s apartment in the period between 12.06pm and 12.54pm.
At 12.54pm, the appellant left his apartment and drove to a pawnbroker’s premises in Footscray. This was the first thing that he did — in the sense of leaving his apartment — after JM’s death.
At the pawnbroker’s premises, the appellant pawned gold necklaces, bangles and rings, and received $2100. Most of the items which he pawned belonged to the deceased, and she had been wearing them on the day of her death.
According to the evidence of the pawnbroker, who had dealt with the appellant before, the appellant seemed no different on that day than on previous occasions.
The appellant, it was common ground, then returned to his apartment. He wrapped a sheet around the body, tied a rope around it, put the body into his car, and drove to a street adjacent to where it was later found. He unloaded the body, stopping only for a very short time, and then returned to his home, arriving there at about 2.10pm.
The appellant then set off again. He went to a TAB at the Clare Castle Hotel in Port Melbourne and placed a bet at 2.38pm. According to his evidence, the amount of the bet he placed was about $10,000, in part comprising the money which he had received from the pawnbroker.
The appellant again returned home for a short time. He left to go to the Rex Hotel in Port Melbourne, in order to collect on a winning bet. It is not quite clear, on the appellant’s evidence, whether it was a win on the bet which he had placed earlier that day, or related to a bet which he had placed the day before.
Later on the afternoon of JM’s death, the appellant drove to a Beaurepaires store in Port Melbourne. He had the tyres of his vehicle changed. He was at the Beaurepaires store between 3.28pm and 4.12pm.
According to the appellant, he also shifted JM’s car on the afternoon of her death. It is the fact that it was moved, and that it was found on 13 October, about three quarters of a kilometre from where the appellant lived.
In all, after JM’s death on 11 October 2011 the appellant left his apartment on six occasions: first, to attend the pawnbroker. Second, to dispose of JM’s body. Third, to place a bet. Fourth, to collect winnings. Fifth, to attend the Beaurepaires store. Sixth, to move JM’s vehicle.
The prosecution adduced evidence designed to show that the appellant and JM had not been involved in a sexual relationship, and that she did not involve herself in bondage.
Nicholas Galanakis, a life-long acquaintance of the appellant, knew that he and the deceased were friends. He had seen them together a couple of times. On one occasion, he asked the appellant if the latter had a sexual relationship with the deceased. The appellant denied it, and then said, ‘Ah, maybe once’.
Bessie Koutsou was the woman with whom the appellant was in a sexual relationship from July 2011. According to her evidence, the appellant told her that he had slept with the deceased once, and regretted it. He also told her that he had borrowed money from JM to help pay his debts, that JM would frequently turn up at his house uninvited, and that it annoyed him. He told Ms Koutsou that sometimes, if he saw that it was JM, he would not answer the door.
Scott Fountain gave evidence that when working as a driver for an escort agency, and later when taking bookings for the escorts, he had known JM. That was over about a ten year period preceding her death. All the time that he worked with JM, he had never known her to do any jobs for the agency which involved sex games or restraints such as bondage and choking. In 2011, JM told him that there was a younger man in her life, that he treated her like a gentleman, and that the relationship with this man was not sexual, because she ‘did not need that’.
Vicki Will knew JM for about ten years preceding her death. They were close friends. JM told her that she had met a young Greek man. She told Ms Will that the man knew she had money, that they mainly went out for coffee and that she wanted a friendship, not a relationship, with him. Ms Will gave evidence also that she and JM had discussed the type of sex acts that the latter would perform in her work. JM had said that she would never be involved in a bondage situation because it was not safe, as she had no control. A couple of days before her death, JM told the witness that she had been approached by a client who wanted a bondage booking. She asked Ms Will if she knew anyone who would do it.
Barbara Bushell gave evidence that she had known JM for 10 to 12 years. She owned an escort agency, and JM worked for her. JM would not do bondage or put herself in a position where she could be hurt, she had to have control of the situation. After JM’s husband died,[5] she did not want another relationship. She liked not having to answer to anyone.
[5]It appears that this was some time in 2010.
Adrian Ciarrocchi gave evidence that he had known JM for about eight years preceding her death. About two weeks before her death, she told him that she had met a man of Greek background from the Port Melbourne area. She told the witness that their relationship was purely companionship and that it was lovely to have someone she could socialise with. She went on to say that there was no sex and joked about it, saying, ‘As if I need sex, I’ve had enough in my lifetime’.
The evidence just summarised, given by six witnesses, stood strongly against the appellant and JM having been involved in a sexual relationship at all; and stood strongly against JM having participated in any kind of bondage activities with the appellant. It was incompatible with evidence given by the appellant at trial, evidence given when only the appellant could describe his relationship with JM and the events of 11 October 2011.
The six witnesses to whom we have just referred also gave some evidence about JM’s attitude with respect to money matters; and as to her financial dealings with the appellant.
Nicholas Galanakis gave evidence to the effect that JM had approached him. She had asked him to give money to the appellant, who was desperate. He had asked her how was he going to get his money back. She had said that the appellant could keep working for him. That was unacceptable to him. He had asked her why couldn’t she give the appellant money. She said that she had already done so.
Scott Fountain gave evidence that JM had great respect for money. She had worked hard for it. It was ‘a possession as such’. In the ten years of their acquaintance, he had not known of her lending money to people.
Bessie Koutsou gave evidence that the appellant was always talking about money. He didn’t have work, and he had bills to pay. He told her that he had taken money from JM. There had been no discussion about repayment.
Vickie Will gave evidence that JM had told her that the appellant knew she had money, because he had seen the Mercedes-Benz she was driving. A few months later, JM told her that the appellant had asked for a loan. She had told him that her money was wrapped up in investments. It was her understanding, from what JM said, that she had not given the appellant any money.
Barbara Bushel stated that JM was generous to ‘a certain degree’ with her children. She wouldn’t ‘have a bar’ of handing out money to others.
Adam Ciarrocchi gave evidence that JM was frugal with her money. He knew of occasions when she had bought something for someone else. She had wanted to be repaid.
Connie Galanakis also gave evidence touching this issue. JM had told her that the appellant was a ‘good guy’, but he ‘love[d] her money’. She said that she had loaned the appellant money, and that he had promised to repay her. In cross–examination, she agreed that JM had not said that she was looking for, or chasing the money up.
The evidence of the seven witnesses revealed, clearly, that it was unusual for JM to loan moneys; and that she was typically concerned, if she did make a payment for someone else, that she be recompensed.
Finally on this issue, we note that in his record of interview the appellant said that JM had loaned him $4500, all of which he had repaid. That did not coincide with his evidence at trial.
It is next convenient to refer to the evidence of Dr Paul Bedford, a forensic pathologist, who conducted a post-mortem examination of the deceased. He observed redness of her face consistent with pressure having been placed on her neck. It would have required the application of a moderate amount of force for 30 seconds or more. There was bruising and moderately extensive bleeding around JM’s two main neck muscles. There were also some abrasions in the neck region, indicating that there was probably some resistance to the strangling process.
The doctor opined that it was impossible for a person to strangle himself or herself to death without a fixation point. This meant that the appellant’s account that JM had strangled herself was an impossibility.
As to the mechanism by which JM had been strangled, the alternatives were that someone had placed his or her hands on her neck and squeezed, or that some sort of ligature had been wrapped around the neck and pulled tightly. The doctor’s favoured opinion was that JM had been strangled with a ligature of some sort. His findings were not inconsistent with a person coming up behind JM, putting a ligature around her neck, and strangling her. There was ’no well-defined indication of whether it [was] a fine ligature or a wider ligature’. He said that it is much easier to strangle a person from behind. There were no defensive wounds present as would indicate a struggle.
Neither counsel asked the doctor whether the presumed ligature could have been as wide as three inches. That was explicable in the case of the prosecutor. The appellant had yet to give evidence, and his account, which asserted that JM had put a dog collar three inches wide[6] around her neck, the collar being fitted with reins which JM put into the appellant’s hands, had yet to be revealed. Counsel for the appellant, who presumably was aware of that intended evidence, perhaps thought that he could get no better answer from the doctor than that the ligature used might have been fine or ‘wider’.
[6]At one point, the appellant said that it was ‘at least three inches wide’.
We should mention one other circumstance pertaining to Dr Bedford’s evidence. It is relevant to the case advanced for the appellant in this Court. The doctor’s opinion that JM could not have strangled herself was contained in a supplementary statement that he made in May 2013, which was provided to the defence side in early June.
We turn to the appellant’s accounts of events, adduced as part of the prosecution case. Police first spoke with the appellant on 13 October 2011. He made a sworn statement. He said that he had spoken to JM on the telephone on the morning of 11 October, whilst he was at Bunnings in Port Melbourne. He stated that they had a discussion concerning the deceased’s son being ill. She asked for his help to fix a hole in the plaster in her apartment. He told police that this was the last time he had spoken to JM, and that he had not seen her since 5 October 2011. He described his movements over the course of 11 October in great detail.
Before long, the appellant disowned this account.
At trial, it was the Crown case that a significant portion of the statement contained lies told out of consciousness of guilt of the crime of murder.
On 14 October, the appellant volunteered to police that he had a receipt from Bunnings, Port Melbourne, which indicated that he had purchased some items there just after midday on 11 October. He also told police that he had attended the Beaurepaires store at Port Melbourne a little later that day.
The latter statement was also a lie. Initially, the appellant’s account of the time at which he attended the Beaurepaires store was confirmed by the store manager. Later, however, the manager admitted to investigators that he had been asked by the appellant to tell that story to police and to falsify the appointment diary. That had been done, so as to show that the appellant had an appointment for 12.30pm on 11 October.
Also on 14 October, the appellant told police officers that he did not know that JM had been a prostitute, that he did not want ‘that rubbish’ in his home, and that he had touched her once.
On 23 November 2011, the appellant was arrested and interviewed by police. In the course of that interview, he changed his version of events on a number of occasions. Whilst his initial version was to the same effect as his account given on 13 October, after various matters had been put to him he admitted that JM had attended at his apartment on the morning of 11 October. He provided a number of versions of what then happened. His ultimate version was that JM was distressed and strangled herself. He gave variant accounts of that version of events. He said that he panicked and decided to get rid of the evidence by disposing of her body and her jewellery.
At trial, the appellant abandoned that account — or rather, accounts — of events. He said that he had lied yet again.
It was the Crown case that the record of interview contained a mixture of some truth and many lies, the latter told out of consciousness of guilt of the appellant having murdered JM.
The conversations
Before turning to the appellant’s evidence at trial, we should set the scene by identifying the issue agitated before this Court under cover of ground 5.
The appellant was taken into custody on the day on which he was interviewed, that is, 23 November 2011. Whilst in custody he had a number of telephone conversations with his daughter in the period between 26 November 2011 and 16 February 2012. What was said in those conversations, and in other conversations between the appellant, his daughter, and others, was recorded. Transcripts were made. In all, it appears, they extended to about 1600 pages. The transcripts were not part of the depositional material, but were provided to trial counsel.
At the heart of this appeal is the contention that the prosecutor cross–examined the appellant so as to suggest that ‘the story’ which he gave in evidence was recent invention; and that this theme was repeated in the prosecutor’s closing address. But, it was said, in certain of the conversations, well before trial, the appellant had given an account of the fatal event which, to an extent, matched his evidence. Evidence of those conversations had been admissible. Whatever be the reason, excepting one abortive attempt trial counsel had not attempted to get the conversations into evidence. The consequence was that the trial had miscarried; a substantial miscarriage of justice had ensued.
Later, we will set out relevant text of the conversations upon which appellant’s counsel relied before us.
The appellant’s evidence
We turn to the evidence which the appellant gave at trial. We will recount it in a good deal of detail in order to preserve, as far as possible, the flavour of what he said.
In examination–in–chief, the appellant said that he first met JM in early 2011, at the South Melbourne Market. A ‘lovely lady with a little dog’ came up and spoke with him. She said that she would love to do the same sort of work as the appellant’s daughter, who worked as an extra on the TV series, ‘Neighbours’. She had overheard him speaking to another person about his daughter’s work. The appellant said he could help her get such work.
That meeting, the appellant said, led to them just ‘opening up to each other’.
A week later, JM rang, to thank him for having put her in contact with a television agency. She suggested that they meet for coffee, and they did so.
When they parted, JM suggested that they should keep in contact. They exchanged phone numbers.
The appellant said that a photo shoot was arranged, pertinent to JM’s proposed career in television. The photo shoot was done at a premises at Point Cook. JM and he drove there in JM’s convertible Mercedes.
The appellant said that after the photo shoot, they returned to his apartment, then went to the bedroom and had sex for about half an hour.
Some days later, they met again. They were in each other’s presence for some hours. They returned to his premises, but on that occasion did not have sex.
The appellant said that, thereafter, they never ‘actually arranged anything’, but rather met randomly. Sometimes they met three times a week, sometimes not at all, at another time, four times in a week. JM would turn up to his place, and he went to her home a couple of times.
The appellant stated that the next time he had a sexual episode with JM was when she came to his apartment. They were throwing old videos out. They came across some pornographic videos. He said, ‘One thing led to the other and we proceeded to have sex, but it was a bit different’.
JM tied his hands and feet to the bed. She took his pants down, took his belt off, wrapped it around his penis, and gave him oral sex. Asked, ‘For how long did that last?’, the appellant replied, ‘Oh, not long, half an hour …’.
After that incident, according to the appellant, he put the kettle on and made a toasted cheese sandwich.
The appellant said that after he became involved with Ms Koutsou, he and JM ‘just agreed to have fun’. He called it ‘dry humping’. But he said that JM also performed oral sex on him.
The appellant gave evidence that, in the bedroom, JM was ‘just rough’, whereas outside the bedroom she was ‘a beautiful, gentle woman, you know, a lovely lady’.
The appellant said that when he first met with JM, he was finding it very hard to get work. He was receiving unemployment benefits ‘and things like that’. Later on, JM ‘was helping [him] out a lot’. That began in about June 2011. It began with her giving him $1000 for repairs to his car. She did that despite him telling her not to do so.
The appellant stated that at that time, ‘I had a bit of trouble with the Sheriff’s Office’. That was for parking fines, speeding fines and the like. At the time, the amount he owed was $69,000. Later, he went to court and it was reduced to $23,000.
The appellant said that he told JM that he owed about $69,000. Being ‘the lovely person that she is’, she started worrying about it. She wanted to see that he was okay. She gave him money. In about June or July 2011, she gave him $8500. To do so, they went to JM’s bank and she withdrew $8500 in cash and gave it to him. She told him to make sure that this went to the Sheriff, but in fact he gambled most of it and paid a few bills.
According to the appellant, JM also gave him $3500 sometime before his birthday in mid–September 2011. He thought that he gambled away the majority of that amount as well.
JM, the appellant said, had given him other amounts, ‘$100 here, $150 there’.
According to the appellant, he tried to pay some of the money back, with the proceeds of gambling. But JM, in substance, refused to accept any of it.
The appellant made it clear that ‘money was never an issue’ between them. JM never asked for money from him.
The appellant said that there were a number of occasions when a belt was tied around his penis in the way which I have set out above. He said also that whilst she was giving him oral sex, she would put the belt around her neck and tell him to hold it loosely.
Asked how often this happened, the appellant replied, ‘Well, out of ten times of giving me oral, it would be eight times, say’.
With respect to the events of 11 October 2011, the appellant said that he remembered that JM had called him that morning. They discussed a hole in the wall of her premises.
At the time when he received the call, he was in the car-park, at Bunnings. Then he went home.
According to the appellant, JM came to his apartment at around midday. That was just before he went to Bunnings a second time. Whilst he was away, JM remained at his apartment.
The appellant stated that when he came home, ‘She was going through all the DVDs that I had on the kitchen bench and I was going to throw a lot of them away as well, and she just stood there with a DVD laughing her head off and it was a DVD that she liked, she ended up liking’.
The appellant identified the DVD in question, ‘a John Holmes XXX DVD’.
The appellant said that JM asked him to put the DVD on. He said, ‘Oh, no, here we go, now, you know, we’re going to have fun now’. They proceeded into his bedroom. He put the DVD on. JM went into the bathroom and came back five minutes later. He had gone and put the kettle on whilst she was in the bathroom.
The appellant then gave this evidence:
Well, then, well we didn’t end up having coffee and hot chocolate because she went into my bedroom and we put this on and again we giggled and laughed and all that sort of thing and we were going to use my belt, this one, but then she pulled something out of a bag, like a, it wasn’t a plastic bag, it was like one of those Myer bags.
…
It was like a, it was a dog collar, a dog collar … It had studs on it like, like, chrome studs. It was at least three inches wide.
As we understand the appellant’s evidence, he said that in fact this incident occurred not in his bedroom, but in the kitchen area. In any event, the appellant said that they went into his bedroom and put on the DVD.
The appellant continued his evidence this way:
And then she was just giggling about it and just put it on and then she grabbed me and said, ‘Come on, Big Boy’ — ‘cos her name was Tiger, her nickname was Tiger in the bedroom, mine was Big Boy and then she got on to the bed and on all fours and …
The appellant said that JM was on her knees on the bed and that he was kneeling behind her. There were leather reins attached to the collar. She told him to hold onto the reins. At the time, he was ‘humping’ her. This went on for two, three minutes. Then, JM collapsed onto her stomach and he collapsed on top of her. He let go of the reins, but, ‘still kept going’. He said:
Well, her knees just buckled and she fell like just forward and I was on top of her and we just kept on going like that she — it’s happened before with other women where …
Because, as he said, his asthma got really bad, the appellant jumped off JM and went to the bathroom. He said also that he did not want to climax in his pants, so he thought he had better go to the bathroom.
The appellant said that when he went back to the bedroom, he spoke to JM, but she did not respond. He nudged her, but she did not respond.
The appellant then said that he could not get the dog collar off, that he was getting frustrated, ‘and then I think I hit her nose, I think, because when I tried to take it off her and stretch it I think I hit her and I broke a couple of her chains’. These, according to the appellant, were only some of the chains which JM had been wearing when she arrived at his apartment. Later, he found other chains in the bathroom.
It is in that way, we interpolate, that the appellant explained having pawned some of JM’s chains, but having put others of them in her car when he disposed of it.
The appellant said that he ‘went blank, … lost it’. He went to grab his phone, but was shaking so much that it fell. He had been going to ring ‘911’. The phone ‘fell to pieces’.
The appellant eventually gave evidence that he had come to the conclusion that he had killed JM. He thought he got her things together and put them in a bag.
On the floor in the bedroom were the chains which had previously broken off.
In the kitchen, he had some ‘gold, coins and other stuff’ which he was going to sell. He threw what he found on the floor — that is, the chains belonging to JM — with the other items, and then got into his car and ‘just drove off’. Initially, he said, he was ‘not going to go anywhere really’, but then he ended up in Footscray — that is, at the pawnbroker’s.
It was there that he pawned necklaces, bangles and rings for $2100.
The appellant said that he then returned to his apartment. Then, he ‘just grabbed a sheet for some reason and [he] put [JM] in a sheet’. He did not know why he put her body in a sheet. He could not look at her face anymore.
The appellant agreed that his vehicle arrived back at his apartment at 1.43pm on 11 October 2011, and that it departed again at 1.48pm, on the latter occasion with JM’s body inside it. He said that he could not even remember where he put the body in his car. He had no idea why he put her in the car.
The appellant said that he only knew where he had driven with the body because the police had told him. He had been vomiting periodically. He drove into a dead–end street, made a U–turn, travelled some distance and stopped the vehicle because he ‘just wanted to run away’. But in fact he took the body out and laid her down. He said, ‘I just went there and took her and I kissed her on the cheek …’.
The appellant said that he then drove off in disgust. GPS records showed that he did so at about 2.03pm.
The appellant accepted that at 2.38pm he was at the Clare Castle Hotel. He did not remember going there at the time, but now he did. He had no recollection of placing a bet whilst at the hotel.
The appellant accepted that it looked as if he had collected on a bet at between 3.06pm and 3.09pm that afternoon.
The appellant did recall going to the Beaurepaires store. He did not dispute that he was there for about three quarters of an hour.
Then, the appellant said, he returned home. He noticed that some of JM’s jewellery was still in the premises. When he found JM’s car, he put that jewellery on the passenger’s seat. He then moved the vehicle ‘further down the road’.
He walked home. He thought that he went to the TAB for some reason.
The appellant was taken to his various meetings with the investigating police officers.
His denial that he had seen JM on 11 October, which was his first version of events, was because he was ‘just ashamed’ and because he ‘wanted to run away from the whole thing’.
With respect to the bet placed at the Clare Castle Hotel TAB outlet, the appellant said that the amount of the bet was $10,000, which included the proceeds of the items pawned that day.
Asked about his account to the police that JM choked herself and that he had to push his way into the bathroom, the appellant said that he told that story because he ‘just wanted to run away, just wanted to escape’.
As to the version in which he said that JM came out of the bathroom and collapsed into his arms, the appellant said that he knew that account was untrue when he said it, but just wanted to go home.
It was at this point in the appellant’s examination–in–chief that his counsel made the attempt to adduce evidence of what the appellant had said in four telephone conversations with his daughter in the period 26 November 2011 to 27 January 2012. That was the attempt to which we referred at [74] above. Of this attempt, more later.
Thereafter, counsel asked the appellant what explanation he had for the untruthful versions of events which he had given to the police. He said, ‘I was just ashamed, I didn’t want the truth to come out’. He was ashamed of people finding out what really happened because he was not one to share his bedroom life with everybody.
In cross–examination, the appellant confirmed that he had been in the car-park at Bunnings at 10.00am on 11 October 2011, and had there received the call from JM. There being no GPS record of any such journey having been made, the appellant stated that a lot of the time the GPS system on his car did not work; a matter which, it appears, he had not told the investigating police officers.
The appellant accepted that he had told a number of people that he had had sex with JM — the police, Ms Koutsou, and Mr Galanakis. He had not been embarrassed to do that, his embarrassment had related to his other sexual activities with JM. He said, ‘We made a solemn promise not to tell anybody to keep it in-house, and we did’.
The appellant said that the reason why he did not make a phone call for assistance was because, in his panic, he dropped the phone and it broke. Whilst he had neighbours, he did not associate with them at all.
The appellant said that he got his phone back together and working after a few hours, he thought. He could not pinpoint when it was.
The appellant was then confronted with a record of a call, made within a minute or so of him setting off to the pawnbroker’s, between his mobile phone and the mobile phone of his daughter. Initially, he did not dispute the accuracy of that record. He denied, however, that his evidence about dropping the phone was ‘another little invention’ which he had made to try and explain why he had not rung emergency services and sought assistance.
It was also put to him that ‘that was a little embellishment you made up yesterday that you dropped the phone and it broke and explain why you didn’t call emergency services ...’; and that ‘you made up that bit about dropping your phone.’ The appellant denied it, and his answer, not the questions, was the evidence in the case. But his answer led on a question in which the prosecutor suggested, in substance, that the appellant’s account was entirely improbable. Within minutes of setting off on his trip to the pawnbroker, the phone was used. How had the appellant managed to get his phone back together again? To that question, the appellant said he could give no explanation.
The appellant was asked about the circumstances in which he disposed of JM’s body. He affirmed that he had kissed her cheek and hugged her. He did not dispute that GPS data showed that his vehicle had only stopped for a minute or so.
It was put to the appellant that CCTV footage of him at the Clare Castle Hotel at 2.38pm on 11 October 2011 did not show him appearing to be upset. In substance, as on many occasions in the course of cross–examination, the appellant avoided answering the question.
He was then taken to footage of his visit to the Rex Hotel when he collected winnings. He agreed that in that footage he didn’t appear to be in a panic, agitated, or ‘pacing around looking lost’.
The appellant admitted that, in his statement made on 13 October 2011, he did not just lie, he made up a detailed story consisting of fictional incidents. He admitted that, when he was interviewed on 23 November, the police had started to play to him GPS data which proved that his story was not correct. He had a break, obtained legal advice, and then made up another story. That story was prefaced by him telling the police that he would tell the truth this time. The particular story he told was that JM went into the bathroom and strangled herself. The appellant admitted that he made all that up.
There was then this question and answer:
After that was proven, I suggest to you, to be impossible, because of the pathologist, Dr Bedford, you’ve now made up this story that you’re telling the people here? – – – This isn’t a story.
It was then put to the appellant that he had said to his daughter, in a phone call recorded on the prison system, that he had no sex with JM that day at all. He agreed that he would have said that; but it was not the truth.
The appellant was taken to his account of the fatal incident. He said that JM had put the dog collar around her neck, and that she had put his hands on the reins. Asked whether he deliberately kept hold of the reins after that, the appellant said, ‘Well, she was very demanding in the bedroom and in what she did and what she said went’.
Asked whether he applied pressure to her neck, the appellant replied, ‘No, it didn’t work that way’.
There was this question and answer, ‘Wasn’t the whole point of what you were doing some sort of erotic asphyxia?’. The appellant replied, ‘We enjoyed it, she liked it and it was fun, yeah’.
The appellant also said, ‘There was no sign of struggle or anything like that whatsoever, at all, because we played these games before with a belt’.
As we understand the appellant’s evidence, he then said that on a previous occasion or occasions, he had been behind her, with his clothes on, she on all fours, and he ‘dry humping’ her, with a belt, rather than a dog collar, on.
The appellant repeatedly denied that he applied any pressure on JM’s neck in the course of the incident which he described.
Asked whether the whole purpose of the incident as he described it was to put pressure onto her neck to heighten the sexual experience, the appellant replied that it did not change his experience and that he did not know JM’s intention at all. He did what he did because JM asked him to, ‘It was a new world to me’.
The appellant agreed that he had to use force to get the dog collar off JM’s neck, and that it must have been very tight.
It was put to the appellant that in his record of interview on 23 November 2011, it was he who had brought up with the police the subject of ‘sex gone wrong’ that he was reading in the papers. He was asked why he had not said to the police that this is what had happened on that occasion. He said that he had a reason. It was to protect his family.
The appellant admitted that as at 11 October 2011, he did not have the money to repay JM what she had lent him. He denied, however, that she had come to his place looking for her money.
The appellant was asked what he did with the dog collar. His answer was this: ‘I put it in a big bag, the bag that she came with, and I put her handbag in there as well and left it near my front door, and when I got back it was all gone. The whole bag, all gone, because I left my front door open. It’s not a good area, Your Honour’. We note in passing that in one of his earlier accounts the appellant stated that he put JM’s handbag into a rubbish bin.
A telephone conversation had between the appellant and his daughter on 9 August 2012 was played to the Court. In it, the appellant intimated that he had been excited about the possibility that someone else had been arrested for the murder of JM, only to have his hopes dashed. There was this question and answer:
How could you, if what you have said to this jury is the truth, how could you possibly be getting excited about the possibility that someone else had been arrested for the murder of [JM]? – – – I was just giving my daughter hope, that’s all it was, that’s all I do on the phone, that’s why I call them every day, I give them hope, that’s all.
Asked, ‘You were just pretending, were you?’, the appellant answered, ‘Yeah, of course, I’ve been pretending for the two years with my family, giving them hope that’s all it is’.
In re–examination, the appellant said that on occasions when JM had been performing oral sex on him, with a belt around her neck, he had not seen her stop breathing, but ‘gargling’, by which he meant, ‘almost choking, sort of thing …’. We interpolate that this was an expansion upon evidence which the appellant had previously given. But then the appellant said that he thought that the choking sound was explained by his penis being in JM’s mouth.
Asked by the trial judge why it was that he selected the particular time — that is, very shortly after JM’s death — to sell what he said was a collection of items which he had in a vase, the appellant replied, ‘There was no reason, really. I think just to get out of the house — there’s no logical reason’.
Thus, in re-examination, after what was said in this Court to be cross–examination suggesting recent invention, appellant’s counsel did not seek to adduce evidence of the conversations.
Prosecutor’s closing address
Appellant’s counsel relevantly relied upon these passages in the prosecutor’s final address in support of his submission that there had been a suggestion of recent fabrication:
Mr Constantinou, the Crown says, has engaged in incriminating conduct. He has lied to the police. Absolutely no issue in relation to that in this case. He has lied to them not once, not twice, at least on three different occasions and there are at least now three different versions of what he says happened in his bedroom in relation to the death of [JM]. He didn’t just deny things. That’s, in my submission to you, terribly significant. It’s not a case of, ‘Look, you’re the one who did it?’ ‘No no, I didn’t do it, I didn’t do it, it wasn’t me’. He has gone beyond that. He’s actually made up long, complicated and detailed stories.
…
I don’t know if [Defence Counsel] is going to say to you, ‘Look, all of that, he spoke to the police, yes, he told lies, all sorts of people lie for all sorts of reasons’ and they do, and I expect His Honour is going to give you some legal directions on that and you should pay careful attention to that — but we all know people lie, that’s not going to come as any great surprise to an adult person in the civilisation that we live in, but he lied when he signed a statement acknowledging that it’s true and correct and libel [sic] for the penalties of perjury. So I say to you the fact that he’s on oath doesn’t make any difference to Mr Constantinou. He has demonstrated he will lie effectively in the same situation anyhow and that’s what he’s done right here in this witness box before you.
He then tells the police, ‘I will tell you the truth’. He starts to give them this story about she came round, yes, she was upset, her son is dying, she’s red in the face — you know what I’m talking about — goes into the bathroom and she proceeded to effectively choke herself to death. He maintains that to the end of the interview. Until a pathologist says that’s impossible, it can’t be done and the evidence of Dr Bedford in this case is very, very important and very significant and I have no desire to bore you in any way, shape or form but I do want to read some bits of his evidence to you.
And:
But that’s maintained, because, as Dr Bedford said to you, you cannot strangle yourself to death, you have to have some fixture point, sometime [sic] mechanism, you just can’t do this (demonstrating) because you will go unconscious and then you can’t maintain the pressure. So his version (indicating), the second one to the police, the long-winded detailed, red in the face, into the bathroom sliding across the floor, moving the door, carrying her out, collapsing in his arms, all of that, all that detail again, all made up, all rubbish, can’t be right. So he has got to come up with another story.
And:
… he wants to maintain that she strangled herself, ‘I didn’t touch her, I never laid a finger on her, it was not me. Poor me. This happened to me and then I panicked’. ‘I was lost’ he says in the interview.
When that is proven to be incorrect he needs another story, except this time the only way he can tell another story is by going into the witness box, and that’s what he does. And that story falls apart upon any sort of close examination.
And:
He is the only one there. No-one else is there with her at this time. What do you make of ’oh I’m watching the news, flashed up on the screen, they have arrested a person for the murder of a prostitute and I thought they have got him’, this is what he is telling his daughter. How can that in any way, shape or form be possibly consistent with the story he has told you in the witness box? How can it? And then, ‘Oh, I wanted to get her hopes up, I was hoping that she would believe’, and then immediately after he says, ‘Oh, yeah, when I read the newspaper the next day it was a murder of nine years ago’, and he goes on to say ‘I thought my luck had changed for once’. This man is absolutely not telling you the truth here in court.
The above excerpted passages represented but a small part of the prosecutor’s final address. The first two were concerned with the impossibility of the self-strangulation account told by the appellant on 23 November 2011, and with the appellant’s need to come up with something different. The final excerpt related to the appellant’s telephone conversation with his daughter which was the subject of the question and answer noted at [157] above.
The appellant’s recorded conversations with his daughter
As we have indicated, at trial the appellant relied primarily upon four recordings of telephone conversations between himself and his daughter Jade, all of which took place between November 2011 and February 2012. But in this Court reference was made to other conversations also. We will set out the relevant part of what the appellant had said in each of them.
The first was a call made on 26 November 2011. The relevant passages were as follows:
I mean an accident happened and it had happened. You know what I mean? … It was an accident. I mean, there’s … she was so different … It’s just she was beyond belief in the stuff that she used to make me do — beyond belief … I mean nothing was sexual, but it was pretend to be sexual — pretend. Everything was pretend … Yeah that she was a tiger and she was cat. All this stuff … I thought she was just an old lady just muckin’ around with me … but I never … wanted to hurt her … this thing that we did with [JM] was all pretend, and I was on top of her and I was taking — I was muckin’ around, and … then suddenly I came back and she had stopped breathing … You know, what’s funny, Jade, we always had out clothes on — never with our clothes off …
The second was a call made on the following day, 27 November 2011. The appellant said the following:
the people here or somebody said — that even the detective said, ‘It’s gone in the papers of a — sexual act gone wrong’ … You know, I walked in the room and she was — stopped breathing. After I came out of the bathroom, and then — fuck. I — I’m — I just — I lost it. I just …
The third was a call made on 28 November 2011. This was not one of the four calls originally sought to be tendered. The transcript reads as follows:
It was an accident, darling. We were just muckin’ around … And then I fell on top of her and we … I was still watching the DVD … she’s just weird … We just giggled and laughed about it until I came back out of the bathroom and she wasn’t breathing … But it was just a sex game gone wrong.
The fourth was a call made on 2 December 2011. This too was not one of the four calls originally sought to be tendered. The appellant said as follows:
Alright, that what [JM] did was a game and it just went wrong and she stopped breathin’.
The fifth was a call made on 5 December 2011, once again not one of the four calls originally sought to be tendered. The transcript relevantly reads:
My disappointment is that I didn’t call 000 when I was going to and the phone fell, and I just panicked and I thought if I call them they’re not gonna believe nothing.
The sixth was a call made on 12 December 2011, not one of the four calls upon which trial counsel originally relied. The transcript is in the following terms:
… the phone’s fell out of my hand … she used to come out like I said to you with my underwear in the kitchen and — and with a belt around her neck …
The seventh was a call made on 23 January 2012. Unlike the earlier calls, this particular conversation purported to provide an explanation as to why the appellant had lied to the police, essentially along the lines of his having panicked. Trial counsel wanted to tender that statement by the appellant to his daughter, but plainly, it would have added nothing to the explanation that he provided in his evidence in chief.
The same is true of the eighth call, which took place on 27 January 2012.
The ninth call, which occurred on 7 February 2012, consisted of the appellant essentially saying that if he had thought that he was hurting JM, he would have stopped. He reiterated that the encounter had been ‘mucking around’, but had not been ‘really sexual’. He described it as ‘dry sex’.
The last call of any conceivable relevance took place on 16 February 2012. It was not one of the four calls originally relied upon. The transcript reads as follows:
I can’t describe the — the apparatus that she had around — I can’t remember it … That’s what happens when you’re in a panic.
Plainly, as will be seen, some of these descriptions of what took place at the time of the deceased’s death accord generally with the evidence given by the appellant at trial. Equally clearly, however, there are significant differences between what he told his daughter, and what he subsequently told the jury as to how JM had died. For example, there was no mention of a ‘dog collar’, whether three inches wide or more than that. There was no mention of the use of ‘reins’ which somehow must have tightened the dog collar. Indeed, there was no account of the application of any force to JM’s neck. There was no mention of any difficult in removing the dog collar after the appellant discovered that JM was not breathing. All of these matters, and others of a similar nature, would have provided the prosecutor with useful ammunition, in his closing address, to attack the appellant’s credibility, had the earlier statements been placed before the jury.
Moreover, a significant part of the appellant’s account in evidence was that he and JM had previously engaged in penile/vaginal intercourse, and that she had performed oral sex upon him quite often, a belt being used for different purposes on such occasions. That evidence put the appellant’s account of what happened on 11 October 2011 into a certain context. Of this preceding history there was not a word in the conversations. Indeed, some of what the appellant said on 26 November 2011 gainsaid that account. Again, that would have provided the cross-examiner with a fertile field of cross-examination.
The potential use of s 66 of the Evidence Act
In the present case, the evidence of what the appellant had said on previous occasions about his role in the death of the victim may have been admitted either under s 66 or s 108 of the Evidence Act. Neither section was mentioned at trial. Nor was s 66 mentioned when the appellant applied for leave to appeal. When renewed application was made for leave to appeal, the appellant contended that there had been a miscarriage of justice in so far as evidence of the conversations should have been admitted under s 108(3) of the Evidence Act to rebut a suggestion made, it was said, by the prosecutor in the cross–examination of the appellant of recent invention.
On 10 June 2015, the Registry of the Court of Appeal drew the attention of the parties to s 66 of the Evidence Act. The Court invited the parties to give consideration as to whether that section had any relevance to the hearing of the appeal.
In our opinion, the evidence of what was said in the conversations was in fact, but seemingly unbeknown to trial counsel, admissible under s 66. As will be seen, evidence of each of the prior representations could, possibly, have been admissible pursuant to s 108. But the fact that neither section was invoked is only the first step in considering whether there was a substantial miscarriage of justice.
Section 66
The basic features of the Evidence Act are familiar. Evidence is only admissible if it is relevant: s 56. Relevant evidence is evidence that, ‘if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding’: s 55.
Part 3.2 deals with hearsay evidence. Section 59 is an exclusionary rule; it provides that evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation (‘the hearsay rule’). Division 2 of Part 3.2 establishes several exceptions to the hearsay rule. Division 2 is restricted to ‘first-hand’ hearsay: ‘a previous representation that was made by a person who had personal knowledge of an asserted fact’; s 62(1).[7] Sections 63 and 64 apply in the case of civil proceedings. Sections 65 and 66 apply in the case of criminal proceedings. Their differential application depends on whether the person who made the previous representation is available to ‘give evidence about the asserted fact’. Section 65 applies where ‘a person who made a previous representation is not available to give evidence about an asserted fact’.
[7]See Papakosmas v The Queen (1999) 196 CLR 297, 310 (Gleeson CJ and Hayne J with whom Gaudron and Kirby JJ agreed on this point).
Section 66 of the Evidence Act provides:
Exception — criminal proceedings if maker available
(1)This section applies in a criminal proceeding if a person who made a previous representation is available to give evidence about an asserted fact.
(2)If that person has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by—
(a) that person; or
(b)a person who saw, heard or otherwise perceived the representation being made—
if, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation.
(2A)In determining whether the occurrence of the asserted fact was fresh in the memory of a person, the court may take into account all matters that it considers are relevant to the question, including—
(a) the nature of the event concerned; and
(b) the age and health of the person; and
(c)the period of time between the occurrence of the asserted fact and the making of the representation.
Note
Subsection (2A) was inserted as a response to the decision of the High Court of Australia in Graham v The Queen (1998) 195 CLR 606.[8]
(3)If a representation was made for the purpose of indicating the evidence that the person who made it would be able to give in an Australian or overseas proceeding, subsection (2) does not apply to evidence adduced by the prosecutor of the representation unless the representation concerns the identity of a person, place or thing.
(4)A document containing a representation to which subsection (2) applies must not be tendered before the conclusion of the examination in chief of the person who made the representation, unless the court gives leave.
Note
Clause 4 of Part 2 of the Dictionary is about the availability of persons.
[8]In Graham v The Queen (1998) 195 CLR 606, Gaudron, Gummow and Hayne JJ had said (at 608): ‘The word “fresh", in its context in s 66, means “recent” or “immediate”. It may also carry with it a connotation that describes the quality of the memory (as being “not deteriorated or changed by lapse of time”) but the core of the meaning intended, is to describe the temporal relationship between “the occurrence of the asserted fact” and the time of making the representation. Although questions of fact and degree may arise, the temporal relationship required will very likely be measured in hours or days, not, as was the case here, in years.’ (citations omitted).
There are at least two conditions for the application of s 66: (a) that the person who made the representation has been or is to be called to give evidence and (b) that, at the time the representation was made, the occurrence of the fact asserted in the representation was fresh in the memory of the person who made the representation.
As questions of admissibility are for the court, it will be for the trial judge to determine whether ‘the fact asserted in the representation was fresh in the memory of the person who made the representation’.[9]
[9]R v Crisologo (1997) 99 A Crim R 178, 189 (Simpson J with whom Hunt CJ at CL and James J agreed).
Section 66 is not confined to a representation made by a complainant; it applies generally. In R v Crisologo,[10] the appellant was charged with two counts of sexual intercourse without consent contrary to s 611 of the Crimes Act 1900 (NSW). The appellant had relied upon the defence of consent. During cross–examination by the prosecutor, the appellant said that, two days after the event in question, he had told members of his family what had taken place between himself and the complainant. He was not asked and did not give evidence of the detail of what had been said. The appellant’s counsel sought to adduce evidence from his wife and mother of the contents of that conversation.[11] After a short argument in which no reference was made to s 66 of the Evidence Act 1995 (NSW), the evidence was ruled inadmissible. On appeal, Simpson J said:
Statements made by an accused person at a relevant (that is, early) time are, in my view, a precise counterpart of complaint made by an alleged victim in sexual assault (and other) cases. The Evidence Act draws no distinction between the admissibility of out of court statements made by a complainant, and statements of a similar kind made by a person accused of crime. The principles applicable to the admission of evidence of complaint apply equally to the admission of evidence of relevant out of court statements by an accused person at a time when the events the subject of the statement are fresh in his/her memory and when he/she has been or is to be called to give evidence. Such evidence is, like evidence of complaint, now admitted as evidence of the truth of what was said: Hall; D.[12]
[10](1997) 99 A Crim R 178.
[11]Because of evidence given in a prior trial the Court assumed that the significance of his mother’s evidence is that it was consistent in detail with the account given by him at trial.
[12]R v Crisologo (1997) 99 A Crim R 178, 189 (citation omitted).
Evidence sought to be led on behalf of an accused which is admissible under s 66 can, theoretically at least, be excluded pursuant to s 135 or limited under s 136.
In Papakosmas v The Queen,[13] Gleeson CJ and Hayne J (with whom Gaudron and Kirby JJ relevantly agreed) rejected an argument that a court which receives evidence of a complaint in any criminal case should limit its use under s 136 so that it is not used for a hearsay purpose. They said that such an argument would ‘amount to an unacceptable attempt to constrain the legislative policy underlying the statute by reference to common law rules, and distinctions, which the legislature has discarded’.[14]
[13](1999) 196 CLR 297.
[14]Ibid 310 [39].
Had trial counsel sought to invoke s 66, it may well have been that the appellant’s prior consistent statements to his daughter, as recorded, would have been admissible and could have been led before the jury. As we have indicated, it by no means follows that the failure on the part of trial counsel to have pressed for the admissibility of this evidence under s 66 gives rise to a miscarriage of justice, still less to a substantial miscarriage of justice.
The doctrine of recent fabrication — The potential use of s 108 of the Evidence Act
At common law, a party could not in general call evidence supporting the credibility of a witness called by that party. In other words, there was a general rule to the effect that a witness could not be asked, in–chief, whether that witness had made a prior statement consistent with his or her present testimony. Nor could other witnesses be called to prove such a statement. The rule existed primarily to prevent the manufacture of self-serving evidence, particularly by party witnesses.[15]
[15]Jones v South Eastern and Chatham Rail Co (1918) 87 LJKB 775, 778.
In R v Hardy,[16] the principal rationale for the rule was explained as follows:
The presumption … is … that every man, if he was in a difficulty, or in the view to any difficulty, would make declarations for himself.
[16](1794) 24 How St Tr 199, 1093.
The rule also prevented the introduction into the trial of a range of collateral issues. It proceeded upon the assumption that a witness ought, prima facie, to be regarded as giving truthful evidence so that there was no need to bolster his or her credibility. It did, however, have the disadvantage of preventing witnesses from telling their stories in a natural way, for example, by stating what they had seen, and commenting upon it by saying what they had told others.
There were, of course, always exceptions to the rule. At common law, prior consistent statements were admissible if led as part of the res gestae.[17] To much the same effect was the rule admitting evidence of contemporaneous complaints to be led in sexual cases.[18]
[17]Milne v Leisler (1862) 158 ER 686; R v Dawes [1992] 2 Qd R 435, 4367.
[18]R v Lillyman [1896] 2 QB 167; R v Osborn [1905] 1 KB 551; Kilby v R (1973) 129 CLR 460.
In addition, evidence of pre–trial acts of identification by identification witnesses could be led, as bolstering the credibility of any subsequent identification.
More relevantly, at least for present purposes, if in cross–examination it was suggested to a witness that the witness had fabricated his or her story, subsequent to the events in question, the common law provided that prior consistent statements could be admitted to rebut that suggestion.[19] Recent suggestion was not a necessary ingredient,[20] it being sufficient that the doctrine is concerned with any fabrication ‘anterior to the trial’. At common law, where this exception applied, any prior consistent statement received through re-examination would not be treated as evidence of the truth of that which was asserted, but merely as tending to show consistency.[21]
[19]Nominal Defendant v Clements (1960) 104 CLR 476, 479 (Dixon CJ).
[20]R v Boland [1974] VR 849; 876–6; Wentworth v Rogers (No 10) (1987) 8 NSWLR 398, 401.
[21]See, eg, Fox v General Medical Counsel [1960] 3 All ER 225; Nominal Defendant v Clements (1960) 104 CLR 476; R v Oyesiku (1971) 56 Cr App Rep 240.
With the enactment of the Evidence Act, much of this old learning ceased to have any application. Not all of it is totally irrelevant, however, since the principles underlying s 108(3) are plainly built upon the foundation of established common law doctrine.
For present purposes the starting point under the Evidence Act is s 102, which is headed ‘The credibility rule’. That section is short and to the point. It provides:
Credibility evidence about a witness is not admissible.
There are then a series of specific exceptions to the credibility rule. Thus, ss 103 and 104 permit credibility evidence to be adduced in cross–examination. Absent those provisions, a witness could not be cross–examined as to credit. Section 106 permits evidence to be led in rebuttal of denials, provided the court grants leave. Thus a witness who denies having made a prior inconsistent statement is exposed to the possibility of having evidence of that statement led in rebuttal. Section 110 enables the accused to lead evidence of his own prior good character. It also enables the Crown to rebut that evidence by establishing that the accused is not generally a person of good character. This section largely replicates long established common law principles. It operates irrespective of the provisions dealing with tendency and coincidence evidence as set out in ss 97 and 98.
Most relevantly for present purposes, s 108 is in the following terms:
(1)The credibility rule does not apply to evidence adduced in re–examination of a witness.
(3)The credibility rule does not apply to evidence of a prior consistent statement of a witness if:
(a)evidence of a prior inconsistent statement of the witness has been admitted; or
(b)it is or will be suggested (either expressly or by implication) that evidence given by the witness has been fabricated or re–constructed (whether deliberately or otherwise) or is the result of a suggestion;
and the court gives leave to adduce the evidence of the prior consistent statement.
The question of the admissibility of what were said to be prior consistent statements on the part of the appellant, made to his daughter, first arose during his examination–in–chief.
The appellant was asked whether he could remember having had a telephone conversation, on 26 November 2011, with his daughter, Jade, regarding the events of 11 October 2011. The prosecutor at once objected. The jury were sent out, and the matter proceeded by way of voir dire.
The transcript reads as follows:
HISHONOUR: The easiest then for this, ask him, ask your client, [Defence Counsel].
DEFENCE COUNSEL: Yes, thank you, Your Honour. Sir, on 26 November 2011, at about 9 a.m., you had a conversation, telephone conversation with your daughter, Jade Constantinou, where you’ve, in the phone call, see if you remember this, ‘Never never, and I mean this, this thing that we did with [JM]i was all pretend and I was on top of her and I was taking, I was mucking around’. Jade said, ‘Yeah’. ‘I had the porno movie going and this, and then I rushed to the bathroom’. Jade said, ‘Yeah’. You then said, ‘I then suddenly came back and she had stopped breathing’. Do you remember having that conversation with your daughter Jade on 26th of November 2011?
APPELLANT: I would have had a conversation. Now, if you ask me if I can remember that day, I can’t remember that day, I can’t, but I would have said something like that, yeah.
PROSECUTOR: It’s objected to, Your Honour.
…
HISHONOUR: – – – conversation you want to get in?
DEFENCE COUNSEL: Again on 27th November 2011, at about 9.30 a.m., you said, ‘I mean, I tried to block everything out like it was a dream, like a bad dream, you know what I mean’. You said, ‘I just said didn’t know what to do, I panicked. You know, I walked in the room and she was — stopped breathing after I came out of the bathroom and then fuck I’m just, I lost it, I just, and then I had to pretend like nothing happened and that was hard enough’. Do you remember that conversation?
APPELLANT: I remember I would say something like that but as for the day, I can’t say, yes, it was that day, but that’s me. I wouldn’t have gone into detail at all with my daughter.
DEFENCE COUNSEL: There’s only two more, Your Honour. On 23rd January 2011, at about 9.45 a.m., this is a conversation again recorded between yourself and your daughter, Jade Constantinou. You’ve said, ‘But, you know, I mean, nobody knows everything yet that only I know’. Jade said, ‘Exactly’. You said, ‘All right, because I’m writing it down’. ‘Yeah, exactly, that’s right’, from Jade and then you said, ‘At that’s why the night they interviewed me I just lost it, mate, and there’s no way I could answer anything, I just, I just made stuff up and I can’t even remember what I said to them, to be honest’. Do you remember that conversation?
APPELLANT: Yeah, that’s me talking … And, yeah, that were me, yeah.
DEFENCE COUNSEL: Next one, Your Honour, is on 27th January 2012 at about 9.35 a.m. Again, this is a conversation recorded between yourself and your daughter, Jade Constantinou. ‘Yeah. The first time they come to my house I remember that one, the one that we don’t like. He said, ’Did you have rough sex with her’? … Jade said, ‘Yeah, yeah’. You said, ‘But that’s when I was denying that I saw her, yeah, and that’s when I was denying everything, darling, you know’. Do you remember that conversation?
APPELLANT: I do …
DEFENCE COUNSEL: They are the extent of the phone calls I wish to go to, Your Honour. I know my learned friend wishes to go to perhaps more. The first two conversations that I’ve relayed to Your Honour are to show that there’s no recent invention of what Mr Constantinou is saying now, it accords with what he’s told his daughter back, not long after the record of interview, and it also, in another sense, it shows that he did lie in the record of interview, but it also shows that this is not — his current version is a recent invention. The second two, Your Honour, are to show that he has, in fact, said to his daughter, as early as January in 2012, that he did lie to the police, that he’s basically said to her, ‘Yes, I did lie, I did deny it’ and my question then, following that, to him would be, ‘Well, then why didn’t you just tell the police after you’ve told your daughter that?’
HISHONOUR: Each of the passages that you have drawn my attention to, it seems to me, are self-serving, designed to bolster his own credit, and unless you can point me to some provision in the Evidence Act or some common law principle which makes them admissible, I can’t see that they are.
DEFENCE COUNSEL: As Your Honour pleases.
Defence counsel did not take the matter any further, and the trial resumed in the presence of the jury. One may reasonably infer, from the transcript above, that he could not point to any provision in the Evidence Act (or to any common law principle) which would, at that stage render the appellant’s prior consistent statements admissible.
What is clear is that there was no ruling whatsoever excluding the evidence of prior consistent statements. There was merely a somewhat premature attempt to lead such evidence, on the basis of an anticipated allegation of recent fabrication, which had not yet been made. It was because there was no ‘ruling’ excluding the evidence in question that leave to appeal in relation to ground 2 was revoked.
No further attempt having been made to lead evidence of prior consistent statements in examination–in–chief, the appellant was then cross–examined. It was submitted before this Court that during the course of that cross–examination, the appellant was squarely confronted with an allegation of recent fabrication.
Three passages were relied upon in support of that submission. They were as follows:
PROSECUTOR: So your phone I put to you is ringing your daughter’s phone at that time 12.55 on the 11th of October, you don’t dispute that do you?
APPELLANT: If it is there, no …
PROSECUTOR I tender that record, Your Honour.
HIS HONOUR: I just wonder whether you actually need to tender the document, [Mr Prosecutor]. I think there is assent to the proposition that he called his daughter, Jade, at 12.55.
PROSECUTOR: If there is no issue I will withdraw the tender.
HIS HONOUR: If that’s sufficient for your purposes?
PROSECUTOR: Yes, Your Honour.
HIS HONOUR: Yes. I’m sorry to interrupt, but accepting that to be correct, do you accept that you must have put your phone back together by that stage?
APPELLANT: Obviously, yes.
PROSECUTOR: Yes?
APPELLANT: Oh, because my GPS has got bluetooth, maybe that’s how I got the call.
PROSECUTOR: The call starts from your phone to the other …?
APPELLANT: Yes.
PROSECUTOR: It is not an incoming – – –?
APPELLANT: I am trying to make sense of it.
PROSECUTOR: It is an outgoing call?
APPELLANT: I don’t very much …
PROSECUTOR: Either way, Mr Constantinou, your phone has got to be together and working?
APPELLANT: Yes.
PROSECUTOR: To make or receive a call, doesn’t it?
APPELLANT: Yes.
PROSECUTOR: So what you said yesterday about dropping the phone was another little invention that you made to try and explain why you didn’t ring emergency services and get assistance for [JM], wasn’t it?
APPELLANT: No, no.
PROSECUTOR: Because you say she was a friend of yours, correct?
APPELLANT: Who was a friend?
PROSECUTOR: [JM]?
APPELLANT: Yes, she is, yes.
PROSECUTOR: The woman you killed. Do you remember her?
APPELLANT: I didn’t kill her, no.
PROSECUTOR: Really?
APPELLANT: No.
PROSECUTOR: You didn’t kill her?
APPELLANT: No.
PROSECUTOR: Someone else did it, did they?
APPELLANT: I take that — I don’t like that.
PROSECUTOR: Did someone else kill her?
APPELLANT: It wasn’t the way you are putting it at all.
PROSECUTOR: Did you cause her death?
APPELLANT: Yes, maybe. Yes.
PROSECUTOR: You killed her?
APPELLANT: Without intent. It was an accident and I don’t like the fact that you are saying I killed her, I don’t like that.
PROSECUTOR: Hang around, because I am going tell this jury you’re guilty of murder?
APPELLANT: Okay.
PROSECUTOR: If you don’t like the fact that I say you killed her you are going to hear that …
HIS HONOUR: Ask questions please, [Mr Prosecutor].
PROSECUTOR: If Your Honour pleases. I suggest to you that that was a little embellishment you made up yesterday that you dropped the phoned and it broke to try and explain why you didn’t call emergency services in a situation where if you were on friendly terms with [JM] and you cared about her as you say you do, that is [what] you would have done if this had been a terrible accident, what do you say to that?
APPELLANT: Well, that’s what you are — telling me or you’re asking me?
PROSECUTOR: I am asking you. I am giving you a chance to comment and answer that?
APPELLANT: Okay. If you are asking me to remember certain times and minutes of that day of which I don’t want to remember, for a lot of reasons, okay, I can’t give you answer to that at all, at all. I was not thinking straight. Unless you walk in my shoes you would never understand what happened that day.
…
PROSECUTOR: I am putting to you you made up that bit about dropping your phone …?
APPELLANT: That’s not true.
PROSECUTOR: … to try to explain why you didn’t call …?
APPELLANT: Not true.
PROSECUTOR: … emergency services?
APPELLANT: Not true at all.
PROSECUTOR: Because if you really cared about her, and it happened the way you have told this jury, this version that you have now come up with it happened, that’s the very first thing you would have expected someone to do is to ring for an ambulance?
APPELLANT: Yes, and I was going to and because of what happened …
PROSECUTOR: You couldn’t because your phone fell down and …?
APPELLANT: That’s right, I was shaking that much, yes, it did.
…
PROSECUTOR: You didn’t just deny any involvement in her death, you actually manufactured a detailed story, didn’t you?
APPELLANT: I just made it up, yes.
PROSECUTOR: And then, I suggest to you, when they started to play you the GPS footage they proved to you that your story wasn’t correct, didn’t they?
APPELLANT: Yes.
PROSECUTOR: You then had a break, you made a phone call to a solicitor, you got some legal advice, correct?
APPELLANT: Yes.
PROSECUTOR: And then you proceeded to make up yet another story to the police, didn’t you?
APPELLANT: After I got off the phone with my daughter, yes.
PROSECUTOR: After you told them that you would tell them the truth this time, or words to that effect, correct?
APPELLANT: Yes.
PROSECUTOR: That was the story about [JM] came to your place, went into the bathroom and effectively strangled herself, correct?
APPELLANT: Yes.
PROSECUTOR: That didn’t happen, did it?
APPELLANT: No.
PROSECUTOR: You made all that up?
APPELLANT: Yes.
PROSECUTOR: After that was proven, I suggest to you, to be impossible, because of the pathologist, Dr Bedford, you’ve now made up this story that you’re telling the people here?
APPELLANT: This isn’t a story.
PROSECUTOR: If I suggest to you that, amongst other things, you have said to your daughter in a phone call which is recorded on the prison system that ‘You had no sex with [JM] that day at all’; do you agree with that, or don’t know or what?
APPELLANT: … have said that, yes.
PROSECUTOR: That wouldn’t be the truth though, would it?
APPELLANT: No.
It was also submitted that the prosecutor had relied upon an allegation or allegations of recent fabrication during the course of his closing address. We have set out the passages in question at [162], and it is unnecessary to repeat them.
Implicitly at least, counsel submitted before this Court that the prosecutor should not have addressed the jury in these terms knowing full well that the appellant had given his daughter a somewhat similar account of the circumstances surrounding JM’s death in the period between November 2011 and February 2012.
At the very least, it was submitted, the jury should not have been left in ignorance of the appellant’s statements to his daughter, insofar as they were consistent with his evidence at trial, particularly where the Crown challenged his credibility on the basis of several prior inconsistent statements made during the course of the very same telephone calls.
This argument has some attraction. However, even if made good, it by no means follows that there was a substantial miscarriage of justice.
First, it is necessary to appreciate that the challenge to the appellant’s account regarding the broken telephone, as being a recent fabrication, was quite specific, and distinct from any broader suggestion that he had made up the story of how JM had met her death. The appellant had mentioned to his daughter that he had dropped his phone, but had not suggested that it had come apart, or was temporarily incapable of being used. In any event, the entire story of how he had dropped his phone, and could not therefore seek emergency assistance, was shown to be palpably false by the telephone records demonstrating conclusively that he had used the phone to make[22] a call within moments of leaving his apartment.
[22]Or, just possibly, to receive.
As regards the suggested broader allegation, once again, the significance of this must be viewed in context. There was never any doubt, from the prosecution point of view, that the defence would be asserting that JM died from erotic asphyxiation. That was part of the defence opening, and was fully appreciated by the jury. It would have been pointless, in these circumstances, to have suggested in cross–examination that the appellant had made up that particular version of events in the witness box, or at the latest, shortly before giving evidence.
In addition, the prosecutor must be understood to have been well aware of what was in the tape recordings, and to have understood full well that the appellant had given what might be regarded as a general account of erotic asphyxiation when discussing the matter of JM’s death with his daughter.
What was new, was the suggestion that JM had died from having a three inch wide dog collar (which she had brought with her), fitted around her neck and which, for whatever reason, had tightened to the point where it was difficult to remove, after strangulation. There had been no mention whatsoever of that particular piece of apparatus, or anything like it, prior to the appellant’s evidence–in–chief. The prosecutor was perfectly entitled, in those circumstances, to suggest to the appellant, in cross–examination, that this detailed account was a recent invention.
It is true that some of the questions put in cross–examination were expressed in broader terms than perhaps would have been ideal. Nonetheless, it seems to us that no real harm was done, and the jury could not have been relevantly misled. They would have understood that the appellant had maintained, at least for some considerable time prior to the trial, that JM’s death was an accident resulting from a sexual encounter involving an act of bondage, or something akin thereto.
If one asks why trial counsel did not seek to re–examine the appellant regarding his prior consistent statements, objectively considered, the answer is not difficult to work out.[23] There were very specific and significant differences between what the appellant told his daughter over the telephone, and his evidence–in–chief. These were not just differences in the level of detail, but in some cases, differences that could, and no doubt would, have been highlighted by the prosecutor when it came to his closing address to the jury.
[23]Remembering always that, where incompetence of counsel is alleged, the question is whether the process failed so as to result in a miscarriage of justice; not why the process failed. The subjective reason why counsel failed to adopt a particular course is ordinarily irrelevant. The question is whether, objectively ascertained, the course adopted was capable of explanation as having been taken for the purpose of obtaining a forensic advantage. See the recent discussion of authorities in Knowles v The Queen [2015] VSCA 141, [131]–[144]. We note that in the present case, appellant’s trial counsel was given the opportunity of responding to the appellant’s case.
In other words, it seems to us entirely plausible that, objectively ascertained, trial counsel made a considered and legitimate forensic decision to forgo asking the judge for leave to adduce evidence of the appellant’s prior consistent statements in circumstances where there was a significant risk associated with adopting that course.
Although we doubt that trial counsel gave any consideration to s 66 of the Evidence Act, the same forensic choice would have awaited him had he proceeded along that path. That is a relevant factor to be borne in mind when considering whether the ground presently before this Court has been made good.
The matter is complicated somewhat by the fact that there appears to be a distinction between the way in which evidence of prior consistent statements is to be received when admitted under s 66, and when such evidence is admitted under s 108(3).[24]
[24]On the distinction between the admission of prior representations under s 66 and s 108 and the care that should be taken to ensure that it is clear from the relevant record the basis upon which such evidence is admitted, see R v DBG (2002) 133 A Crim R 227, 241-2 (Howie J, with whom Meagher JA and Simpson J agreed); Friend v The Queen [2007] NSWCCA 41, [135] (Sully J with whom Spigelman CJ and Hislop J agreed).
The fact that there may have been a legitimate basis upon which the appellant’s conversations with his daughter could have been adduced, whether in–chief (s 66) or perhaps in re–examination (s 108(3)) does not of itself establish that his trial miscarried. There would have been a serious downside to leading this evidence, given the discrepancies between the earlier accounts, as recorded, and the detailed version given in evidence–in–chief. Objectively ascertained, a forensic decision to refrain from pressing for the admissibility of this evidence, in circumstances where the jury were well aware, from defence counsel’s opening address that the appellant’s defence was one of accidental death during some form of sexual bondage session, made perfect sense. We are not persuaded that the failure to press for such evidence to be led caused the jury to disbelieve what was an utterly improbable account put forward by the appellant, or that its admission may have affected the outcome of this trial.
For that reason alone ground 5 should be rejected.
No substantial miscarriage of justice established
Assume, against the conclusion we have reached, that there was no objectively rational basis upon which appellant’s trial counsel did not seek to introduce evidence of some of what his client had said in the conversations, and that the prosecutor’s cross–examination of the appellant and closing address in the circumstances lacked fairness. The question would arise whether the appellant had established that what transpired was productive of a substantial miscarriage of justice.
In Baini v The Queen,[25] a majority in the High Court explained the way in which it will be demonstrated that there has been a substantial miscarriage of justice for the purposes of s 276(1)(b) or (c) of the Criminal Procedure Act 2009. Baini was a case in which inadmissible evidence had been led by the Crown.
When Baini returned to this Court, Warren CJ, Nettle and Ashley JJA stated the necessary enquiry in this way:
We proceed, therefore, on the basis that it is not open to be satisfied on the record of the trial that the admission of the inadmissible … evidence did not amount to a ‘substantial miscarriage of justice’ unless we are able to conclude from our review of the record that, if the inadmissible … evidence were excluded, the jury acting reasonably and applying the correct onus and standard of proof could not properly have been left with a reasonable doubt as to the applicant’s guilt on those of the Rifat counts on which the jury returned a verdict of guilty. [26]
[26]Baini v The Queen [2013] VSCA 157, [10].
The Court also said that:
As we have said, however, in view of what the majority of the High Court has said on appeal, we respectfully understand that the test is not one of whether the inadmissible evidence may have had an effect on the jury but rather one which looks to what the situation would have been if the inadmissible evidence had not been before the jury. And, since we consider that the Crown case (excluding the inadmissible … evidence) was overwhelming, we are satisfied that the jury acting reasonably and applying the correct onus and standard of proof would have been bound to conclude that the Crown case (excluding the inadmissible … evidence) left no room for reasonable doubt. In that sense, we are persuaded beyond reasonable doubt that conviction was ‘inevitable’.[27]
[27]Ibid [24].
In Andelman v The Queen,[28] the complaint was made that inadmissible evidence had been received. Complaint was also made about various aspects of the judge’s conduct of the trial. The Court (Maxwell P, Weinberg and Priest JJA) was satisfied that a substantial miscarriage of justice had been demonstrated. The Court said:
In this matter, we are persuaded that a substantial miscarriage of justice occurred by reason of the errors in the trial. Our conclusion proceeds from an analysis of the nature of the errors made at trial.
The duty upon a trial judge to provide an unrepresented accused with necessary information and assistance is onerous, but it is essential in ensuring a fair trial. The judge’s failure to raise the question of what warnings were necessary in relation to Kalia and Tatnell’s evidence was so fundamental that it might have been described, formerly, as going to the ‘root of the trial’. As counsel for the appellant submitted on the hearing of the appeal, the evidence of those two witnesses formed a very large part of the Crown case as it was conducted. Due to his lack of awareness of trial conduct, and the failure of the judge and prosecutor to raise the issues associated with their evidence, it was left but barely tested.
…
There has therefore been a ‘serious departure from the prescribed processes for trial’.[29] The prescribed process, as set down by MacPherson and subsequent cases, was for the unrepresented accused to be given such assistance as was necessary to enable him to test the evidence laid against him. That process was not followed.
The issues concerning ground 2 also clearly demonstrate a serious departure from prescribed process. For the reasons set out above, the failure by the Crown to provide a notice detailing its intention to rely upon the coin deposit evidence for coincidence purposes was, in the circumstances of this case, a serious departure from the statutorily mandated process with respect to such evidence.
Baini makes clear that the strength of the Crown case is not, by itself, a determinant factor in assessing whether a substantial miscarriage of justice occurred. Indeed, this Court’s satisfaction that a conviction was ‘inevitable’ (to use the language of Baini) would not necessarily determine that no such miscarriage occurred. Some serious departures from trial process warrant the conclusion that there has been a substantial miscarriage, regardless of effect. For the reasons we have given, this is such a case.[30]
[28](2013) 38 VR 659; 227 A Crim R 81.
[29]Baini v The Queen (2012) 246 CLR 469; (2012) 293 ALR 472, 478 [26].
[30]Andelman v The Queen (2013) 38 VR 659, 678 [87]–[88], [90]–[92].
Strictly, it was then unnecessary for the Court to consider whether the guilty verdicts were ‘inevitable’. But the Court dealt with that issue. It highlighted this passage in the judgment of the High Court in Wilde v The Queen:[31]
Unless it can be said that, had there been no blemish in the trial, an appropriately instructed jury, acting reasonably on the evidence properly before them and applying the correct onus and standard of proof, would inevitably have convicted the accused, the conviction must be set aside: see Driscoll v The Queen; Reg v Storey; Gallagher v The Queen.[32]
[31](1998) 164 CLR 365.
[32]Ibid 372 (citations omitted).
The Court then stated:
The majority view in Baini appears to us to be very much to the same effect and to have preserved, moreover, the shifting persuasive onus which lay at the heart of the proviso. As to the first, the majority judgment uses the term ‘inevitable’ in its ordinary sense, that is, as meaning ‘unavoidable’ or ‘sure to happen’. The appeal court will only be satisfied that a conviction was inevitable if, assuming that there had been no error, there was no possibility that the jury might have entertained a doubt as to the accused’s guilt.[33]
[33]Andelman v The Queen (2013) 38 VR 659, 681[101].
It is not to be supposed that there is any difference in substance between the inquiry framed by this Court in Baini on its remitter and the inquiry described in Andelman. Thus, assuming that some evidence of the conversations had been introduced, and, at its highest, that the prosecutor had then been precluded from addressing the jury in exactly the language which he did, can this Court conclude, on a review of the record, that the jury, acting reasonably and applying the correct onus and standard of proof, could not properly have been left with a reasonable doubt as to the appellant’s guilt?
The record shows that this was an extraordinarily strong Crown case. The certain fact is that on 11 October 2011, JM was killed by the appellant in his apartment by the use of a ligature, probably applied from behind. Further, the ligature was applied with considerable force and for a relatively extended period.
There being only two people in the apartment at the time, the circumstances in which the appellant strangled JM were a matter of circumstantial evidence, and inference. The Crown proposed that there was a motive for the killing, although it was under no obligation to establish a motive. Much more importantly, in our view, was the evidence of what the appellant did after the killing, both on that day and subsequently. In our opinion, it was highly incriminating of his guilt of murder.
The various journeys which the appellant made on the afternoon of the killing were ordered, and bespoke no confusion. The appellant’s disposition, as observed and observable, bespoke no distress. The appellant’s apparent callousness knew no bounds.
Next, the appellant gave evidence that he was unable to call for assistance because, in his upset, he had dropped his mobile phone and damaged it. His evidence that he had put it back in order at some later, indefinite, time that day was gainsaid by him making or receiving a call very soon after he first entered his car subsequent to the killing — that is, to drive to the pawnbroker’s.
Again, the appellant’s account, bespeaking some tenderness towards JM, of the circumstances in which he disposed of her body did not fit with the short period of time that his vehicle stopped at the particular site, or with the drag mark of the body from his car to its eventual resting place.
Then there is the appellant’s evidence of the disappearance of the ‘dog collar’ with which — he claimed — JM had been strangled. That evidence strained credulity beyond breaking point. Note also that it involved an account which differed from what he had earlier said about the disposal of JM’s handbag.
Further again, there are the admittedly false accounts given by the appellant of what occurred on the day of the killing. There were multiple accounts, all given with accompanying detail. It is notable that the appellant abandoned those different accounts when objective evidence of their falsity was demonstrated to him.
Remember, also, the appellant’s attempt to mislead the investigating police officers as to the time when he had attended the Beaurepaires store on the day of the killing.
Now consider the appellant’s final account of what happened, as given in evidence. It was an integral part of that account that JM and he had repeatedly engaged in unusual sexual adventures before the day of the killing. But that could not stand with JM’s contemporaneous statements to friends about her relationship with the appellant.
Next, the critical aspect of the appellant’s evidence was that JM had not simply invited, but required, that she be subjected to a kind of bondage on the day of the killing. That she would do so stood opposed to the evidence of those who had long known her working habits. There was unlikely to be, we add, any apparent difficulty in the appellant giving the account which he did. His evidence asserted the presence of many pornographic DVDs in his apartment. One of them, indeed, went into evidence.
Even in his evidence as to the the fatal incident, we add, the appellant’s account was internally contradictory and opposed to other evidence. The appellant maintained, on the one hand, that he had applied no pressure to JM’s neck via the dog collar, yet at another point in his evidence he said that the collar was so tight around her neck, after her death, that he thought he broke it when getting it off. The pathologist’s evidence, of course, showed that there had been protracted pressure applied to JM’s neck preceding her death.
Assume that the body of evidence had included some part of the conversations. As we have explained, it was very doubtful whether the appellant would thereby have been advantaged. Not only did what the appellant variously say not coincide with his evidence at trial, he admitted — the particular context is set out at [157]–[158] above — that he had been ‘pretending’ for two years in order to give his family hope.
We are, of course, conscious that it was for the Crown to prove its case, and that rejection of the appellant’s evidence did not mean that the Crown had done so. But, as we have indicated, there was an overwhelming body of circumstantial evidence which bespoke the appellant’s guilt. We cannot conceive, had evidence of the conversations been adduced in evidence, and had the prosecutor been obliged to vary his closing address to an extent, that upon the entirety of the evidence the jury could possibly have entertained a reasonable doubt of the appellant’s guilt.
Orders
The appeal should be dismissed.
- - - - -
- AGLC
- Steve Constantinou v The Queen [2015] VSCA 177
- Case
- [2015] VSCA 177
- Decision Date
CaseChat Overview and Summary
The central legal issue was whether the appellant's prior representations to his daughter were admissible under the Evidence Act 2008 and, if so, whether their exclusion resulted in a substantial miscarriage of justice. The appellant's counsel did not argue for the admissibility of the evidence, and the trial judge did not seek to admit it. The court considered whether the prosecutor's cross-examination and jury address implied that the defence of accidental death was a recent fabrication, which could have prejudiced the jury. The appellant's counsel did not seek to introduce the evidence during re-examination, and the decision not to do so was a legitimate strategic choice.
The High Court found that the evidence of the prior representations was admissible under section 66 of the Evidence Act 2008, and may also have been admissible under section 108(3). However, the appellant's counsel's decision not to present this evidence was a legitimate strategic choice, and no substantial miscarriage of justice occurred. The Court held that the trial judge's decision not to admit the evidence was not an error, and the appeal was dismissed. The Court found that the trial was conducted fairly and that the exclusion of the evidence did not result in a substantial miscarriage of justice.
Orders
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Background
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Evidence
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Decision
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Ratio Decidendi
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