Corsi v the Queen
[2013] VSCA 323
•26 November 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2013 0013
| DONATO CORSI |
| Appellant |
| v |
| THE QUEEN |
| Respondent |
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| JUDGES | WEINBERG and WHELAN JJA and LASRY AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 14 November 2013 |
| DATE OF JUDGMENT | 26 November 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 323 |
| JUDGMENT APPEALED FROM | DPP v Corsi (Unreported, County Court of Victoria, Judge Carmody, 17 August 2012) |
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CRIMINAL LAW - Appeal against conviction - Directions - Proof of motive - Whether jury should have been directed that motive needed to be proved beyond reasonable doubt - Consciousness of guilt - Whether directions necessary - Appeal dismissed.
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| Appearances: | Counsel | Solicitors |
| For the Appellant | Mr T Kassimatis | Valos Black & Associates |
| For the Crown | Mr P B Kidd SC | Mr C Hyland, Solicitor for Public Prosecutions |
WEINBERG JA:
I have had the considerable advantage of reading in draft the reasons for judgment prepared by Whelan JA. I agree, substantially for the reasons given by his Honour, that the appeal should be dismissed.
There is, however, one matter associated with his Honour’s judgment with which I do not agree. It was submitted on behalf of the appellant that irrespective of whether, in the particular circumstances of this case, motive had to be proved beyond reasonable doubt, the effect of the judge’s re-direction to the jury on that point would have been to create a ‘risk of confusion’. Presumably, counsel meant by that submission that there was also a risk that the re-direction might have diluted the warning earlier given to the jury regarding the need to be particularly circumspect before drawing any inference adverse to the accused. As I read Whelan JA’s judgment, his Honour accepts this argument in part. His Honour observes that the judge’s failure to relate what he said about motive, when he re-directed the jury, to what he had earlier said about inferences did create a risk of confusion[1] although it did not, in the end, give rise to a substantial miscarriage of justice.
[1]See [58] below.
In my respectful opinion, the re-direction did not give rise to any such risk. I am satisfied that the re-direction was given in terms that, while correcting the error earlier made, would not have detracted from what the jury had been told as to how they should go about the task of drawing inferences.
As Whelan JA’s reasons for judgment clearly demonstrate, the jury were instructed that, to the extent that this case turned upon circumstantial evidence, they could not rely on inferences as proof of the elements of either offence, or of any fact significant in establishing such an element, unless they were satisfied beyond reasonable doubt of the facts upon which they based that inference. The jury were also told that they could not draw an inference adverse to the accused from those facts unless they were satisfied that it was the only reasonable inference to be drawn.
His Honour’s direction as to inferences was taken almost verbatim from one small component of the model charge on inferences that currently appears in the Victorian Criminal Charge Book.[2] A more complete statement of the charge on inferences is as follows:
[2]Judicial College of Victoria, Victorian Criminal Charge Book (‘Charge Book’).
In a criminal trial, you are only allowed to base your decisions upon reasonable inferences. You must not base your decisions on guesses or speculation.
…
While we might be willing to act upon such speculation in our daily lives, it is not safe to reason in that way in a criminal trial. Because of the serious nature of a criminal trial, you must be very careful about the way that you reason, and only rely on reasonable inferences.
…
I have directed you that the only things that the prosecution needs to prove beyond reasonable doubt are the elements of the offence(s). However if you are considering relying on an inference to find an element proved there is a further direction you must apply.
You must not rely on an inference as proof of an element of an offence, or of a fact which is significant in establishing an element of an offence unless:
First, you are satisfied beyond reasonable doubt of the facts upon which you base your inference; and
Secondly, you are satisfied that this inference is the only reasonable inference to be drawn from those facts.[3]
[3]Charge Book ch 3.5.1.2.
It should be noted that the Charge Book also contains a separate, and far more detailed, model charge to be given in cases where the Crown relies, to any significant degree, on circumstantial evidence. The Charge Book cautions that this lengthier and far more elaborate charge need not be given where the circumstantial evidence is ‘of only slight importance’ in the trial, and specifically warns that it should not be given where the directions are more likely to confuse, rather than assist, the jury.
The model charge on circumstantial evidence relevantly reads as follows:
To find the accused guilty, you must be satisfied that his/her guilt is the only reasonable inference that can be drawn from the circumstances established by that evidence. If there is any reasonable explanation of those circumstances which is consistent with the accused’s innocence, then the prosecution will not have proved his/her guilt beyond reasonable doubt, and you must acquit him/her.
…
In determining whether an inference is a reasonable inference, you must consider the evidence as a whole. Do not disregard an item of evidence because when considered alone it does not support a reasonable inference. Look instead at all of the evidence together. One piece of evidence may resolve any doubts you have about another piece of evidence. When all of the pieces of evidence are taken into account, you may become certain of a particular conclusion that would not be reasonable to reach if you considered those items separately.
…
This does not mean that you should not consider each individual piece of evidence carefully. It is your duty to do so. As I have told you, you may only base your decision on evidence that you accept to be true. However, in determining which evidence to accept, and what inferences to draw, you must consider the evidence as a whole.
…
In this case, the defence has argued that [insert defence explanation of the circumstantial evidence]. You do not need to be convinced that this was what happened in order to find the accused not guilty. You must acquit the accused if you find this explanation to be reasonable in light of all the evidence.
This is because the burden is on the prosecution to exclude all reasonable hypotheses that are inconsistent with the accused’s guilt. If they cannot do so, you must give the accused the benefit of the doubt, and find him/her not guilty.
…
In this case, you have been asked to infer [insert relevant conclusion] from the following [insert number of links in the chain] facts:[Identify facts which constitute links in the chain of reasoning].
You can see that proof of [insert relevant conclusion] relies on each and every one of those [insert number] facts. If just one of those facts cannot be proven, then you will not be able to draw that inference. [Give relevant example.]
You have to be satisfied that the prosecution has proven each and every one of those facts beyond reasonable doubt before drawing that inference. If you have any doubts about any of those facts, you must find NOA not guilty.
If one or more facts might reasonably be regarded by the jury as indispensable links in a chain of reasoning towards guilt, add the following …:
In this case, you have been asked to infer [insert relevant conclusion] from [identify facts which constitute links in the chain of reasoning].
The prosecution and defence hold different views about the importance of [this fact/these facts] to your decision. The defence contends that [it is/they are] essential to your determination of [insert relevant conclusion]. According to defence counsel, if you do not find [this fact/each of these facts] to be true, then you must find the accused not guilty. [Explain defence reasoning].
By contrast, the prosecution contends that [this fact/these facts] simply form part of the entirety of the evidence, and are not essential to your decision. According to the prosecution, you can find the accused guilty even if [this fact/these facts] are not true, on the basis of the other evidence in the case. [Explain prosecution reasoning].
It is for you to determine the importance of [this fact/these facts] to your reasoning. If you think that any of these facts are essential to your determination of [insert relevant conclusion], then you must be satisfied that those facts have been proven beyond reasonable doubt. If you have any doubts about facts which are central to your reasoning, you cannot find NOA guilty. [4]
[4]Ibid ch 3.5.2.2 (citations omitted).
It was hardly surprising that the judge in this case confined his instructions to the jury regarding inferences to the much shorter charge dealing specifically with that topic set out at [5] above. After all, this was not, in any true sense, a circumstantial case. It involved no question of identity, where warnings as to how to go about drawing inferences often assume real significance. There was certainly no need, in this case, to burden the jury with the task of applying rarefied and difficult metaphors such as whether particular facts should be seen as ‘links in a chain’, or ‘strands in a cable’. There was no need to add to the complexity of their task by inviting them to determine for themselves whether they regarded any particular fact in issue as an ‘indispensible step’ towards a finding of guilt, or merely something along the path towards such a conclusion.
His Honour’s direction on inferences was, of course, preceded by a careful, and indeed unimpeachable, direction regarding the burden and standard of proof. Given that the appellant had himself gone into evidence, it was necessary for the judge to have directed the jury, as he did, that even if they rejected the accused’s evidence as untrue, that did not of itself mean that he was guilty.
It was against that background, that the judge gave the jury the particular direction regarding inferences that is now said to have been significantly diluted by his re-direction as to motive.
The direction on inferences (which was given early on in the charge) came immediately before the initially erroneous direction regarding the Crown’s reliance on motive. In that sense, the jury may well have regarded these two directions as being in some way connected which, of course, they were. However, when the charge is read as a whole, the discussion as to motive was nothing more than an example of one of a number of ‘basic facts’ that might have to be found before the jury could draw any inference adverse to the accused. The judge did not suggest that motive was the only such ‘basic fact’ at issue in the trial. In my opinion, there was no realistic chance that the jury would have understood his Honour to have done so.
When the judge later came to correct his original error, and re-direct the jury that motive need not be proved beyond reasonable doubt, he said nothing at all that could be taken as qualifying his earlier, separate, and more general direction as to how they should go about the process of drawing inferences. He did not modify, or withdraw, the examples that he had previously given as to the difference between drawing inferences, and mere speculation or conjecture. Plainly, defence counsel did not consider that there was any risk that the jury might treat the re-direction as having the perverse effect that is now contended. He took no exception to the re-direction. More tellingly perhaps, he did not ask the judge to repeat the direction as to inferences that had earlier been given.
Accordingly, this variant of the appellant’s argument seems to me to be without merit. For that reason, as well as for the reasons given by Whelan JA, I would dismiss this appeal.
WHELAN JA:
On 18 November 2010 a collision occurred between a motor vehicle driven by the appellant, Mr Corsi, and a bicycle ridden by one Pasquale Messina at or near the intersection of Mount View Road and Chappell Street, Thomastown. As a result of that collision, and events immediately after it, Mr Corsi was charged with one count of reckless conduct endangering a person, one count of intentionally causing serious injury, and an alternative count of recklessly causing serious injury. The count of reckless endangerment concerned the collision. The count of intentionally causing serious injury, and the reckless alternative, concerned events which allegedly occurred immediately after the collision.
Mr Corsi was tried in the County Court. He pleaded not guilty. On 8 August 2012 the jury returned a verdict of guilty on the count of reckless conduct endangering a person, not guilty on the count of intentionally causing serious injury, and guilty on the alternative count of recklessly causing serious injury. After a plea hearing, he was sentenced to a total effective sentence of four years’ imprisonment with a non-parole period of three years.
On 4 September 2013 Buchanan JA granted the appellant leave to appeal against his conviction on two grounds. I will set the grounds out in full later. The first ground concerns the trial judge’s directions in relation to the issue of motive. The second ground concerns evidence given by Mr Corsi in his trial that he had fled the scene of the collision after Mr Messina had displayed the handle of a handgun.
Overview of the evidence in the trial
Before reviewing the relevant aspects of the trial, it is necessary to set out a brief overview of the evidence.
The alleged victim, Mr Messina, gave evidence that he had been drinking at an establishment near where the collision eventually occurred and that he left at about a quarter to three in the afternoon heading towards his home on a bicycle. He said that he was riding down the footpath of Mount View Road when he saw Mr Corsi’s vehicle turn on to Mount View Road, going in the same direction as him but on the opposite side of Mount View Road. He said that Mr Corsi’s car stopped just before a roundabout at Chappell Street.
Mr Messina and Mr Corsi were known to each other. Mr Messina said that as he drew level with the car he made eye contact with Mr Corsi, that he saw that Mr Corsi had ‘an angry look on his face’, and that he just kept going. According to Mr Messina, nothing was said between the two of them.
Mr Messina said that as he was beginning to cross Chappell Street from the footpath of Mount View Road he heard a screech and that Mr Corsi’s car came around the roundabout and ‘mowed’ him down. He said that Mr Corsi then got out of his car, took a shovel handle from the car, and hit him over the head with it. Bystanders intervened and Mr Corsi got back into his car and left. Mr Messina said he eventually left on his bicycle but was taken to hospital after collapsing at his home.
Mr Messina was cross-examined about his intoxication and he was questioned in detail as to exactly how the accident had occurred. He was also cross-examined about his evidence that Mr Corsi had taken a shovel handle out of his car. Amongst other things, it was put to him that Mr Corsi had got out of his car and asked him whether he was alright in response to which Mr Messina had abused him. It was put to him that in the course of this abuse he had pulled up the top part of his clothing and showed Mr Corsi the black handle of a firearm. Mr Messina denied that.
The second principal witness to the events called by the prosecution was a bystander named Anthony Cannell. He said he was visiting a relative in Chappell Street and was in the process of leaving that house when he heard a commotion and turned to see what was happening. He said he saw a man on a pushbike and a man in a car having a discussion which was ‘a little bit loud’. He said he heard the man on the pushbike say ‘I haven’t got it’. He said that the car went around the roundabout as if it was turning right down Chappell Street ‘but went around the traffic island’ and ‘ran the person on the pushbike to the ground’. He said the person on the bicycle was about to cross Chappell Street from the ‘pedestrian walkway’. He said that the car ‘deliberately struck’ the person on the bike. He said the car got ‘a little bit faster’ as it approached the pushbike and then there was a ‘swift swerve towards the pushbike’. He said the cyclist fell to the ground. He said the driver opened the driver’s door, grabbed what looked to him like a steel pole, and hit the person who had been on the bicycle ‘a good three times, maybe four’.
Another bystander gave evidence, Renee Rimmer. She said that she came out of a house in Mount View Road and heard a person swearing. She said that she saw a car on an angle facing towards a person on the ground who wasn’t moving. She said the person who was swearing and yelling was ‘the guy in the car’. She located the car in position which, on the Crown case, was consistent with Mr Cannell’s evidence.
Evidence was given by medical practitioners and police. In particular, evidence was given about Mr Messina’s injuries, including a laceration to his head; and about blood at the scene, in a trail moving away from the scene, and on the bicycle.
Mr Corsi gave evidence.
Mr Corsi said that he saw Mr Messina in Mount View Road and said hello to him and that Mr Messina had responded ‘Happy Birthday’. He said that it was his (Mr Corsi’s) birthday that day. He said that he intended to invite Mr Messina to his house that evening and that he drove around the roundabout intending to talk to Mr Messina but that as he did so Mr Messina came straight into the roundabout and ‘plunged into my car’.[5] He denied that he had deliberately run into Mr Messina. He said that he got out of his car and asked Mr Messina whether he was alright, in response to which Mr Messina swore at him and abused him. He said Mr Messina ‘pulled up his overall – his clothing, and I saw a handgun’. He said that as soon as he saw the handgun he left the scene. He said he saw no blood at the scene.
[5]The transcript reads ‘plounged’.
I turn then to the aspects of the trial which are relevant to the grounds of appeal.
Motive – the $70 debt
Before the jury was empanelled the prosecutor told the trial judge that the prosecution proposed to allege a motive which was that Mr Messina owed Mr Corsi a small amount of money. She said that this matter had come to light for the first time during the cross-examination of Mr Messina at the committal. It was alleged that Mr Messina owed Mr Corsi $70 for cannabis. The prosecutor said that the fact that the debt was owed for cannabis ‘won’t be spoken of’. She referred to the statement of Mr Cannell where he said he had heard Mr Messina saying ‘I don’t have it’. In response, defence counsel suggested it was entirely up to the prosecution as to whether they led evidence of motive but if they did so ‘it opens it up to cross-examination, and where that takes us is something else again’.
Early in his evidence-in-chief the prosecutor asked Mr Messina whether he owed Mr Corsi ‘a small amount of money’ on 18 November 2010 and Mr Messina agreed.
The jury heard more of the alleged debt in the course of cross-examination. Mr Messina was asked about work he had done for Mr Corsi and whether he had been paid for it. Mr Messina said in response to those questions that he owed Mr Corsi $70 and that he had owed it for about a week. He was asked what he owed the $70 for and he said it was ‘for a bit of marijuana’. Later, he was asked whether anything had been said between them about money owed on the day of the accident. Mr Messina said that it had not.
As indicated, in his evidence-in-chief Mr Cannell gave evidence that he heard the person on the pushbike say ‘I haven’t got it’. He repeated that in his cross-examination.
When Mr Corsi gave evidence he denied that there was any money owing between himself and Mr Messina on 18 November 2010. He said the evidence given about an amount of $70 being owed in relation to marijuana was not true.
In final address the prosecutor mentioned the alleged debt on only one occasion. She was dealing with the issue of whether an inference could be drawn that Mr Corsi had intended to cause serious injury. This was the count upon which Mr Corsi was eventually acquitted. She dealt with the evidence relied upon and then said:
I also suggest to you that the accused intention can also be drawn from a motive alleged by the prosecution. The prosecution says that Mr Messina owed the accused a small amount of money. Mr Cannell heard at one stage the cyclist call out “I don’t have it, I haven’t got it”.
She then went on to submit that as the result of all of the circumstances to which she had referred, Mr Corsi ‘plainly intended to cause serious injury to Mr Messina’.
Counsel for the defendant also only raised the question of the alleged debt once in his final address. He did so in the context of addressing Mr Messina’s credibility. He said:
I’ve already talked to you about Mr Messina and his redwood shovel handle, well let’s also look at the marijuana. The small debt, they might have been trying to keep that little bit secret at the start of a trial, it is just a small debt. But we know, members of the jury, that Mr Messina said it was about marijuana at the preliminary examination, remember that. Preliminary examination, the first time Mr Jenkins has heard anything about marijuana, hadn’t heard anything about that before. A bit like the redwood shovel handle that has just come up during these proceedings.
The reference to the ‘redwood shovel handle’ was a reference to cross-examination suggesting that Mr Messina’s description of the object he was hit with as being a redwood shovel handle, was a recent invention. The reference to Mr Jenkins is a reference to the informant. Again, what was being put in relation to the debt was recent invention by Mr Messina.
In the course of the charge the trial judge gave directions in conventional terms about the drawing of inferences. Amongst other things he said:
You must not rely on inferences as proof of the elements of the offence, or of a fact which is significant in establishing an element of the offence, unless;
1.You are satisfied beyond reasonable doubt that the facts upon which you base your inference; and
2.You are satisfied that this inference is the only reasonable inference to be drawn from those facts.
He went on to say that the prosecution had relied on motive for the alleged offending, constituted by the alleged $70 debt. He referred to the evidence of Mr Cannell in that context. He then said:
The Crown relies on the motive and the motive has to be proved beyond reasonable doubt. Evidence of motive is one item of evidence that may tend to show the accused committed the acts alleged by him. However, you must look at all the circumstances of the case in coming to your verdict, all of the circumstances.
During a break, the prosecutor queried what had been said about proof of motive. In response to observations made by the trial judge to the effect that he had ‘looked it up’, the prosecutor suggested that an old charge book may have suggested motive had to be proved beyond reasonable doubt but that was no longer the case. The prosecutor said that if the trial judge was minded to say anything more, it should simply be that the prosecution did not need to prove motive beyond reasonable doubt but must prove each of the elements beyond reasonable doubt.
When defence counsel was asked what he said about it, he responded: ‘That sounds right, Your Honour’.
When the charge resumed the judge said the following:
There’s just one matter I want to clarify. Just before I sent you out I was outlining the elements of the offences respectively, and it is the elements of the offences that have to be proven beyond reasonable doubt, so you will probably note that motive is not one of those elements. Motive is not an element, but it is one of the issues that the prosecution rely upon to prove their case.
No exception was taken to the re-direction.
The gun and flight
The issue of a gun first arose in Mr Messina’s cross-examination. It was put to him that when Mr Corsi came up to him after the collision he pulled up the top part of his clothing and Mr Corsi saw in the waistband of his pants the black handle of a firearm. Mr Messina denied that.
When Mr Corsi gave evidence he said that that is what had occurred. At the end of his evidence-in-chief he said that as soon as he saw the gun ‘I was out of there. I wasn’t going to hang around’.
Mr Corsi was cross-examined at some length about his evidence that he was shown a gun. It was put to him that it was inconsistent with other evidence which had been given to the effect that Mr Messina was not wearing pants but was wearing overalls. It was put to Mr Corsi that his evidence about a gun was ‘absolute rubbish’. He agreed that the first time he had talked of this gun was in the course of the trial itself. He was cross-examined about why he had not told the police about the gun.
Mr Corsi was also cross-examined about other aspects of his evidence which it was said were untrue. One such aspect was his evidence that he saw no blood before he left the scene.
In the prosecutor’s final address she submitted that Mr Corsi was not to be believed and that what he had said in his evidence was lies. In that context specific reference was made to his evidence about the gun.
In defence counsel’s final address he referred to the gun only once. It was also in the context of credit. The submission made was that Mr Corsi’s failure to tell the police about the gun was nothing more than the exercise of his rights as they had been explained to him by the police.
No reference was made in either final address to the issue of flight.
Grounds of appeal
The grounds of appeal are as follows:
1.A substantial miscarriage of justice was occasioned in the trial of Charge 1 by the trial judge’s having directed the jury, in the particular circumstances of the Applicant’s trial, that:
(a)the jury did not need to be satisfied to the criminal standard of the motive advanced by the Prosecution for the Applicant’s offending; and
(b)the jury needed to be satisfied only of the elements of the offence with which the Applicant was charged and the ultimate guilt of the Applicant.
2.A substantial miscarriage of justice was occasioned by the failure on the part of the trial judge to direct the jury, properly or at all, on:
(a)the Applicant’s evidence that [Mr Messina] possessed, and tacitly threatened the Applicant with, a handgun; and
(b)the Applicant’s flight from the scene of the collision and alleged assault.
Submissions
On behalf of the appellant it was submitted that the judge made two errors in his re-direction on the question of motive. The first was said to be that the re-direction ‘undermined the importance of motive in the jury’s analytical process’. The submission was that motive was the factor ‘which the jury almost certainly fastened upon in deciding whether [Mr Corsi] deliberately drove his car at [Mr Messina]’. It was submitted that proof of motive was not indispensible, but it was of such importance in this particular case that a direction that motive needed to be proved beyond reasonable doubt was required, as the judge had initially done.
The second suggested error was that the re-direction ‘undercut’ the direction which had been given about the drawing inferences. The jury had been directed that if a fact was significant in establishing an element, that fact had to be proved beyond reasonable doubt. They were then told in the re-direction, in effect, that motive did not have to be proved beyond reasonable doubt.
On behalf of the respondent it was submitted that motive was not put forward by the Crown as an indispensible part of its case and that this was not a case where there was a need to give a direction that motive needed to be proved beyond reasonable doubt. It was not a circumstantial case. The Crown principally relied upon the direct evidence of the alleged victim and two independent eye witnesses. Motive, it was submitted, was a ‘side issue’.
In relation to flight and the gun, it was submitted on behalf of the appellant that the alleged lie about the gun was a lie of the kind capable of misuse as consciousness of guilt, as was the evidence of flight itself. It was submitted that once the prosecution put to Mr Corsi that his evidence about the gun was a lie, both in itself and because of the association of that issue with his flight from the scene, it became essential that appropriate directions about consciousness of guilt be given, either in the terms of Edwards v The Queen,[6] if it was capable of evidencing consciousness of guilt, or Zoneff v The Queen,[7] if it was not.
[6](1993) 178 CLR 193 (‘Edwards’).
[7](2000) 200 CLR 234 (‘Zoneff’).
On behalf of the respondent it was submitted that no reference at all was made to flight by either the prosecution or the defence in their final addresses, and that Mr Corsi had not been cross-examined on the issue of flight by the prosecutor. It was submitted that it was clear that the alleged lie concerning the gun was relevant only to credit and there was no need for any consciousness of guilt direction about it. It was submitted that any such direction may well have created a risk of misuse of the evidence.
Analysis – Ground 1 – motive
The submission on behalf of the appellant can only be accepted if in this particular case motive was a fact of such importance that, as a matter of prudence, a direction treating it as though it were indispensible was required.[8]
[8]Kotvas v The Queen [2010] VSCA 309, [26]; and see Shepherd v The Queen (1990) 170 CLR 573, 579.
Motive was not important in this case in the requisite sense. This was not a circumstantial case. The prosecution case was founded on the evidence of the alleged victim and two independent eye witnesses. The alleged motive was, as counsel for the respondent on the appeal submitted, a ‘side issue’. It got very little attention in the final addresses of counsel. Most of the attention it received was in Mr Messina’s cross-examination as a matter bearing on his credit.
The trial judge was wrong when he directed the jury that motive had to be proved beyond reasonable doubt in the circumstances of this case. He was right to correct the matter. At trial, defence counsel agreed with the course taken.
As to the second error said to emerge from the re-direction, it seems to me that the judge’s failure to relate what he said about motive to what he had said about inferences did create a risk of confusion. As I have concluded that in this case motive did not need to be proved beyond reasonable doubt, I do not consider that that risk has resulted in any relevant miscarriage. It is significant that defence counsel, who agreed with the re-direction on motive, did not perceive any such risk.[9]
[9]See: MB v The Queen [2012] VSCA 248, [45]; Tunja v The Queen [2013] VSCA 174, [5].
In any event, even if there was some error in this regard, given the relatively minor significance of the issue of motive, I do not consider that any substantial miscarriage of justice has been shown to have occurred.[10]
[10]Tunja v The Queen [2013] VSCA 174, [4].
Analysis – Ground 2 – gun and flight
The presence of the gun was part of Mr Corsi’s account of the relevant circumstances. It was potentially relevant, on his account, because, amongst other things, it explained why he left the scene of what was, according to him, a collision which was not his fault. He was challenged about that, and it was put to him that his evidence about seeing a gun was a lie. There were other aspects of his evidence which were also said to be false. Indeed, his entire account was diametrically
opposed to the evidence of the alleged victim and the two independent witnesses and was challenged as such.
No submission was made at the trial that the alleged lie about the gun, or Mr Corsi’s departure from the scene, constituted conduct engaged in out of a consciousness of guilt. I cannot detect any indirect or tacit suggestion to that effect by anyone in the transcript. The alleged lie about the gun was relevant to credit. That is the only context in which it was referred to by the prosecution in final address.
Defence counsel did not seek a direction in accordance with either Edwards or Zoneff. It must be taken that he did not detect any indirect or tacit use of consciousness of guilt reasoning by the prosecution, or any relevant risk that the jury might so reason without being invited to do so, or being alerted to that possibility.
Obviously, the trial judge did not perceive the need to give directions on consciousness of guilt.
Directions on consciousness of guilt were not required here. There was no foundation for those directions. No such issue had been raised. Indeed, it seems to me that this is a case where such directions could have alerted the jury to an impermissible mode of reasoning which was not relied upon by the prosecution and not referred to, directly or indirectly, during the trial.
Conclusion
My conclusion is that the appeal should be dismissed.
LASRY AJA:
I agree that the appeal should be dismissed.
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