Crocker v The Queen
[2013] VSCA 318
•18 November 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2013 0039 S APCR 2013 0132 | |
| MICHAEL CROCKER | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | REDLICH, PRIEST JJA and ROBSON AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 2 September 2013 |
| DATE OF JUDGMENT | 18 November 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 318 |
| JUDGMENT APPEALED FROM | [2012] VSC 570 (Lasry J) |
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CRIMINAL LAW – Appeal against conviction – Murder – Recklessly cause serious injury – Prosecutor relied on lies told by the applicant in his record of interview – Whether judge was required to give a Zoneff or Broadhurst direction – Dhanhoa v The Queen (2003) 217 CLR 1; AE v The Queen [2011] VSCA 168 considered – Zoneff direction was necessary – No substantial miscarriage of justice – Claim of self-defence arose solely out of the applicant’s record of interview – Jury rejected his account – Verdict of guilty was inevitable – Baini v The Queen (2012) 246 CLR 469; Baini v The Queen [2013] VSCA 157 applied – Section 274 of the Criminal Procedure Act 2009.
CRIMINAL LAW – Inconsistent verdicts – Stab wounds to each victim inflicted within seconds of each other – Applicant found to have murderous intent for one victim and reckless intent to cause serious injury for other – Whether it was open to the jury to find that the applicant possessed a different level of intention.
CRIMINAL LAW – Application for leave to appeal against sentence – Applicant wrongly sentenced as a ‘serious violent offender’ under s 6B(2)(b) of the Sentencing Act 1991 – Sentencing discretion re-opened – No different sentence should be imposed – Application for leave to appeal refused.
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| Appearances: | Counsel | Solicitors |
| For the Applicant | Mr D A Dann | Turnbull Lawyers |
| For the Crown | Mr B F Kissane | Mr C Hyland, Solicitor for Public Prosecutions |
REDLICH JA:
After a trial in the Supreme Court in August 2012, the applicant was convicted of murder and recklessly causing serious injury.[1] On 22 November 2012, he was sentenced to 20 years’ imprisonment on the charge of murder, four years’ imprisonment on the charge of recklessly causing serious injury with an order of two years’ cumulation on the lesser charge resulting in a total effective sentence of 22 years. A non-parole period of 16 years was fixed.
[1]He was acquitted of intentionally causing serious injury and convicted on the alternative count of recklessly causing serious injury.
The offences took place on 26 September 2010. The victims, Amanda Lee and Adam Fielding, were living together in Wodonga. At 11.30 pm, Lee received a text message from the applicant, demanding repayment of the $200 she owed him. Lee and the applicant had a series of hostile telephone conversations. At some stage during the conversations, Fielding left his house and walked to the applicant’s house nearby followed shortly thereafter by Lee, who drove there.
The trial centred on the evidence given by Lee. The applicant did not give evidence, but extracts of his record of interview were played before the jury. According to Lee’s evidence, she arrived at the applicant’s house soon after Fielding. When she arrived, she saw Fielding knocking on the door. She heard Fielding say ‘just can you please open, Mick…I just want to talk to you.’ Lee knocked on the applicant’s window and said something to the effect of coming back the next day and threatened to punch the applicant’s head in. There were no lights on in the house and the pair headed back towards Lee’s car.
The applicant came out of his house and said, ‘I’m sick of people coming around here hassling me.’ He stabbed Lee in the stomach with a knife and pulled it out again. Lee sustained a lacerated liver as a result of the knife wound. The applicant then stabbed Fielding in the back, causing him to fall to the ground. Lee yelled at the applicant and helped Fielding to her vehicle and drove him to the Wodonga Hospital. Fielding was air-lifted to the Royal Melbourne Hospital and died on 28 September 2010.
The applicant was arrested on 27 September 2012 and participated in a record of interview on 30 September 2012.
The applicant now seeks leave to appeal against his conviction on the following grounds:
1. The trial judge erred in failing to give any direction to the jury as to how they should treat the alleged lies told by the applicant.
2. The guilty verdict on the charge of murder is inconsistent with the not guilty verdict on the charge of intentionally causing serious injury.
The applicant also seeks leave to appeal against his sentence on the following ground:
1. The learned trial judge erred in imposing sentence on the charge of murder on the basis that the applicant was a serious violent offender.
Ground 1
The sole issue at trial was whether the applicant was acting in self-defence when he stabbed Lee and Fielding. The claim of self-defence arose out of his account of the offences given during the police record of interview on 30 September 2012. During the interview, he made a number of statements, said by the Crown to be lies, that were inconsistent with the physical evidence and the account of Lee. These alleged lies were to feature heavily in the prosecutor’s closing address. First, during the interview the applicant claimed that Fielding had lunged at his throat, and that he had stabbed him in self-defence. The applicant did not sustain any defensive injuries. He further claimed he had stabbed Fielding under the left armpit, whereas Fielding’s only injury was a single stab wound to the back. The applicant repeatedly said it was ‘impossible’ that he had stabbed Fielding in the back. Third, Lee said that the applicant came outside holding a knife, whereas the applicant claimed he only picked up the knife from an outside table. Contrary to Lee’s evidence, he claimed that he stabbed Fielding first, then Lee. Finally, the applicant claimed he was in fear of Lee, and wouldn’t have attacked either victim if Lee had not approached him. He said ‘I didn’t know what she had in her hand, I thought it was a rock or a moccasin or something, because she’s notorious for carrying weapons’. Lee’s evidence was that she and Fielding were unarmed.
At the conclusion of evidence, the trial judge inquired whether either party contended that consciousness of guilt was an issue. Both parties stated that consciousness of guilt was not in issue and no direction was required.[2]
[2]It appears that in answering the trial judge’s question, the prosecutor did not refer to the lies in the applicant’s record of interview. The prosecutor said only that the Crown relied on the washing of the driveway not as consciousness of guilt, but as evidence that the applicant was not as drunk as he claimed.
During his final address, the prosecutor invited the jury to place great weight on the lies told by the applicant in his record of interview:
You will have noticed that early on in the interview the accused man says that he'd had some other incidents, he goes back a year and a half or two for one of the incidents, talks about he was belted up by other people, nothing to do with this night's activity. He goes on and says he's sick of it. It's almost as though he's saying that's the justification for ‘doing what I did’ and that will be something that again you'll hear about from His Honour later on in the course of this case as to how you should view that account. Whether you accept it or not, again it's a matter for you. You might find that everything the accused man said had an appeal of frankness and honesty. You might think that. If you did you probably have a real doubt about this prosecution case.
On the other hand you might think he was quite loose and fast with the truth and said what he thought he had to say along the way. You might think, frankly think, doesn't give anyone any pleasure to say it but you might frankly think he told lie upon lie and we had an example of that just before the break where the police officer was asked about the business about whether he had any sign of injury around his throat and he'd said earlier in the place that he'd had hands around his neck as you heard and then later on he's moved from that. There's just nothing supporting and of course one of the things you'd expect might well have happened is if there'd been a lunge at his throat and he has a knife, there'd be some sort of defensive injury, some sort
of mark on the hand or around the arm from the deceased man. Not a word of it in this case, there's one fatal wound only.He realises, and crafted it, and of course you remember this interview's taken some time afterwards, he's had legal advice, he's had certainly some time to think about his position and it's put to him directly in the course of the questioning that going outside armed with a knife wasn't the brightest thing to do effectively. And he says: ‘No I got the knife from the table outside.’ And you know, he's tried — it's a matter for you, how you saw it, but he tries to deflect that very point. Now, importantly, when he's asked some more questions, he says that his concern was ‘that they were going to drag me outside and fucking kill me.’ He talks about them being beside the tree, then at the door. You can see from one of those photographs the deceased man's hat near the tree on the ground. And you might think that had a particular bearing to the location of the stabbing. You can see on the footpath near the gate again, the blood. And again, you'd say this is not near the front door, this is not them trying to scramble into the house. This is the distance away from it.
And then he's really confronted with the absolute problem that he's got. There is no more elegant and eloquent testimony to a murderous intent than a stab wound right in the back. And he has to deal with it. And what does he do? He ducks and dives around it. Couldn't have been facing him. This is at p.11 of his interview transcript. He remembers it was under the left armpit. And he says, ‘I'm pretty sure it was just there.’ And then the police officer says, ‘But it's been said to me that it was in the back?’ ‘Yeah, in the back. In the back and really bad for me.’
And then the police officer continues, ‘Well, it looks like it.’ And the accused man says, ‘Well, it looks like someone's been running away from me.’ And the policeman says, ‘Not facing you.’
So, it's critical stuff. And he goes on and says he's right-handed. He goes on and he's asked about how he could explain the proposition that this was in the middle of the back, and he says, ‘well, I've done that’, and then doesn't accept that it was in the middle of the back, he says, ‘no, no, no’, that's on p.12, when the policeman puts it to him, ‘it was in the middle of his back. You've seen the photos from the autopsy, it's in the middle of his back.’ When he's asked further about that, he says, ‘it's just impossible. Couldn’t have been stabbed like that.’
All right. Well, that's for you to examine and make of what you will, but what I say to you about that is that he simply hasn't told the truth about that, and that as I say says it all.
Now, you've got another piece of evidence to weigh into the balance. This is a man who claims to be in fear of Mandy Lee. Terrible fear. You saw the size of her. Well, he's cross with her. You have a look through the transcripts from the text messages and you see that on the 22nd he's saying to her, ‘What are you up to, sweetheart?’
Later again, on the 22nd, getting a bit crosser perhaps this time, ‘Where the fuck are you? What, are you dirty on me?’
Then on the 25th, this is at about 9.45 am, ‘Ring me, let me know what you're doing, Mick.’ 6.35 pm, ‘Can you ring me?’ And then he's wound up to this state where he says, at 11.55, ‘Get the money, that's all I want.’ ‘Okay.’
So, you can see, this is him speaking to Mandy. He's not in fear of her. Quite the reverse. He's demanding of her. As I say, it's something you can weigh into the picture as well.
The prosecutor also referred to additional post-offence conduct, particularly the evidence that the applicant washed down his driveway to wash away the blood and the fact that the knife was never recovered. The prosecutor put to the jury that the applicant’s actions were cold-blooded.
The trial judge gave no direction to the jury about the applicant’s alleged lies.
The applicant submits that the trial judge erred in failing to direct the jury as to how they could treat the alleged lies told by the applicant. The applicant submits that the prosecutor’s assertions in closing that the applicant had told a number of deliberate lies assumed such importance during the final address that a Zoneff direction was required.[3] The applicant relied in particular upon the matters italicised in the above passage from the closing address as indicating that the jury were invited to engage in consciousness of guilt reasoning. In the applicant’s submission, in circumstances where the prosecutor was suggesting that the applicant’s lies went to crucial issues for the jury’s determination, in the absence of a Zoneff direction, there was an unacceptable risk that the jury would use the evidence of lies in an impermissible way.
[3]Zoneff v The Queen (2000) 200 CLR 234.
There is a natural tendency for a jury to think that, if an accused is lying, it must be because he is guilty.[4] The Privy Council in Broadhurst v The Queen stated that it was the duty of a judge to make clear that was not so. Although it is customary to give a Broadhurst direction that a jury is not to reason that because an
accused has told a lie that he must be guilty, this Court stated in R v Renzella[5] that there is no invariable rule of practice to that effect where the lies are admitted only as going to the accused’s credit. It is generally desirable that the direction be given in order to ensure that the jury do not use an accused’s lies in an impermissible way.
[4]Broadhurst v The Queen [1964] AC 441, 457; R v Renzella [1997] 2 VR 88, 91; R v Ibrahim (2003) 7 VR 141, 152 [41]; Hedgeland v Western Australia [2013] WASCA 97, [85].
[5][1997] 2 VR 88, 91.
Frequently the closely related but discrete question also arises as to whether there is a danger of consciousness of guilt reasoning based on the lies told. The nature of the lies may lead the jury to consider that particular lies were told because the accused realised that he would reveal his guilt if he told the truth. Where lies are relied upon in this way, a full Edwards direction was required (although the nature of the trial judge’s obligation in this regard has now been significantly altered by the Juries Directions Act 2013).[6] Where there is a real risk that the jury may so reason but the Crown does not rely upon consciousness of guilt reasoning, the judge will ordinarily give the jury a Zoneff direction that the jury may not infer from any lies that the accused was conscious of his guilt. In Dhanhoa v The Queen,[7] the High Court said:
It is not necessary for a trial judge to give a direction, either of the kind referred to in Edwards or of the kind referred to in Zoneff, every time it is suggested, in cross-examination or argument, that something that an accused has said, either in court or out of court, is untrue or otherwise reflects adversely on his or her reliability. Where the prosecution does not contend that a lie is evidence of guilt, then unless the judge apprehends that there is a real danger that the jury may apply such a process of reasoning, as a general rule it is unnecessary and inappropriate to give an Edwards direction. Zoneff was said to be an unusual case and the direction there proposed was said to be appropriate where there is a risk of misunderstanding about the significance of possible lies. The present was not such a case.[8]
[6]See in particular ss 25 and 26.
[7](2003) 217 CLR 1 (‘Dhanhoa’).
[8]Ibid 12 [34].
Where lies are peripheral to the issues in the case, there may be no need to give the jury either a Broadhurst or Zoneff direction. In such circumstances any direction may lead the jury to place undue focus on the lies. However, the common experience of the law is that juries do attach significance to lies told by an accused, so that where they assume importance in the Crown case, the trial judge will need to consider whether either of these directions should be given.
In AEv The Queen,[9] the applicant was charged with sexually assaulting his niece while they were alone together in his car. The applicant told police that he could not recall ever having been alone in the car with his niece. It was submitted by the prosecutor in closing that the applicant had lied to police because he did not want to be linked in any to the circumstances in which this offence was alleged to have been committed. No warning was given to the jury as to what use they could make of the applicant’s lie. In allowing the appeal against conviction Lasry AJA, with whom Buchanan and Bongiorno JJA agreed, said:
In this case, in my opinion, there was a reasonable possibility that the jury may have misused this evidence in the absence of a proper direction. This was a case, as becomes apparent in relation to grounds 2 and 4 of this appeal, where the only evidence came from the complainant and from the record of interview of the accused in which this alleged lie was said to be contained. Apart from that, this lie, said to be told in order to distance the applicant from the complainant, was effectively the only other piece of relevant evidence and may have carried the impression of being independent and supportive of the Crown case. Thus, whilst the terms of the alleged lie may not have been highly probative, the fact of it could well have been so regarded by the jury and treated as significant.
There is, in my opinion, much more than a slender possibility that such a risk arose in this case. The problem could easily have been solved by the trial judge seeking clarification from the prosecutor that the lie to which he had referred was only relied on as going to the credit of what was contained in the record of interview of the applicant.[10]
[9][2011] VSCA 168.
[10]Ibid [18]–[19].
The respondent submits in the present case that the lies were only relied upon by the prosecution to invite the jury not to believe the exculpatory statements made in the record of interview, and that there was no possibility that the jury would use the lies as constituting an implied admission of guilt. While a Broadhurst direction would have been appropriate, a Zoneff direction was unnecessary. That submission cannot be sustained. The lies told were directly relevant to the primary question in this trial: whether the applicant was acting in self-defence when he stabbed each of the victims. Had the prosecutor’s submission been confined to an attack on the credibility of the applicant’s account in his interview credit, a Zoneff direction may not have been necessary, for the reasons described above in Dhanhoa. But the prosecutor’s submissions were not so confined. In the italicised portions in the above passage from the prosecutor’s address, the prosecutor described the applicant’s answers in the record of interview in such a way as to invite the real possibility of consciousness of guilt reasoning. To suggest to the jury that when incriminating facts were put to the applicant he ‘ducks and weaves’ or sought to ‘deflect’ those facts, or that he had ‘crafted’ his answers some days after the incident after having received legal advice, was to invite a process of inferential reasoning from the lies to guilt. No complaint was made following the prosecutor’s closing address that the Crown had invited consciousness of guilt reasoning. Notwithstanding that no request was made that a Zoneff direction be given it is clear that at least such a direction should have been given. The need to do so was more acute because no Broadhurst direction was given.
Substantial miscarriage of justice
The parties provided written submissions as to whether the trial judge’s failure to give a Broadhurst, Zoneff or Edwards direction resulted in a substantial miscarriage of justice under s 276 of the Criminal Procedure Act 2009. Section 276 provides:
(1)On an appeal under section 274, the Court of Appeal must allow the appeal against conviction if the appellant satisfies the court that-
(a) the verdict of the jury is unreasonable or cannot be supported having regard to the evidence; or
(b) as the result of an error or an irregularity in, or in relation to, the trial there has been a substantial miscarriage of justice; or
(c) for any other reason there has been a substantial miscarriage of justice.
(2)In any other case, the Court of Appeal must dismiss an appeal under section 274.
In Baini v The Queen,[11] the High Court found that the meaning of ‘substantial miscarriage of justice’ was not to be determined by reference to the decision in Weiss v The Queen.[12] The High Court explained the circumstance in which an irregularity will not amount to a substantial miscarriage of justice:
Nothing short of satisfaction beyond reasonable doubt will do, and an appellate court can only be satisfied, on the record of the trial, that an error of the kind which occurred in this case did not amount to a “substantial miscarriage of justice” if the appellate court concludes from its review of the record that conviction was inevitable. It is the inevitability of conviction which will sometimes warrant the conclusion that there has not been a substantial miscarriage of justice with the consequential obligation to allow the appeal and either order a new trial or enter a verdict of acquittal.[13]
[11](2012) 246 CLR 469.
[12](2005) 224 CLR 300.
[13]Baini v The Queen (2012) 246 CLR 469, 481–2 [33] (‘Baini’).
This Court has now sought to distil the principles set out by the High Court. In the Court of Appeal’s subsequent decision in Baini v The Queen,[14] the High Court’s ‘path of reasoning’ in respect of its analysis of s 276(1) was set out, as follows:
[14][2013] VSCA 157, [8] (‘Baini (No 2)’).
Ultimately, the question of what constitutes a miscarriage of justice for the purposes of s 276 of the Criminal Procedure Act is a question of statutory construction.[15] Paraphrases of the statutory language are apt to mislead. They cannot and do not stand in the place of the words used in the statute.[16]
[15](2012) 246 CLR 469, 476 [13].
[16]Ibid 476 [14].
The possible kinds of miscarriage of justice with which s 276(1) deals include, although they are not limited to, cases like the present where there has been an error or an irregularity in or in relation to a trial [but] the Court of Appeal [can] be satisfied that the error or irregularity did not make a difference to the outcome of the trial.[17]
[17]Ibid 479 [26]. This formulation differs from that of the majority in the High Court only by replacing a double negative on the affirmative proposition. The sense is unchanged.
In determining whether there has been a substantial miscarriage of justice in such a case, the Court of Appeal must consider whether the verdict was inevitable,[18] although an affirmative answer to that question will not always conclude the issue.[19]
[18]Ibid 480 [30].
[19]In a case in which the error or irregularity was such that there was no trial at all.
So to say is not to reintroduce the proviso to the common form criminal appeal provision or impose on an appellant an onus of proving his or her innocence.[20] Nor is it to say that ‘observations made in Weiss about the application of the common form criminal appeal provision cannot apply to s 276 … , but only if the statutory text so permits’.[21]
The inquiry which must be made, however, is whether a guilty verdict was inevitable, not whether the verdict was open.[22]
If the Crown contends that a guilty verdict was inevitable, an appellant may meet the point by showing no more than that, had there been no error, the jury may have entertained a doubt as to his or her guilt.[23]
If the Crown contends that a guilty verdict was inevitable (which is to say a verdict of acquittal was not open), the Court of Appeal must decide that question on the written record of the trial recognising ‘the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record’.[24]
The fact that the jury has returned a verdict of guilty may assist in answering the question but, in cases like the present, where evidence has wrongly been admitted, and in cases where evidence has wrongly been excluded, the Court of Appeal cannot fail to be satisfied that there has been a substantial miscarriage of justice unless it determines that it was not open to the jury to entertain a doubt as to guilt.[25]
In deciding whether it was not open to the jury to entertain a doubt as to guilt, the Court of Appeal must determine whether ‘the result at trial may have been different (because the state of the evidence before the jury would have been different) had the error not been made’.[26]
That determination is not to be made by ‘by speculating about what a jury, this jury or a reasonable jury might have done but for the error’.[27]
‘Nothing short of satisfaction beyond reasonable doubt will do’. The Court of Appeal ‘can only be satisfied, on the record of the trial, that an error of the kind which occurred in this case did not amount to a “substantial miscarriage of justice” if the … court concludes from its review of the record that conviction was inevitable’.[28]
[20](2012) 246 CLR 469, 480 [30].
[21]Ibid 477 [15].
[22]Ibid 481 [32].
[23]Ibid 481 [31].
[24]Ibid 481 [32] citing Fox v Percy (2003) 214 CLR 118, 125–126 [23] (footnote omitted).
[25](2012) 246 CLR 469, 481 [32].
[26]Ibid.
[27]Ibid 481–2 [33].
[28]Ibid.
In Andelman v The Queen,[29] the Court (Maxwell P, Weinberg and Priest JJA) outlined the ‘salient points’ that emerged from the majority’s analysis in the High Court. They noted, inter alia, that a finding that the conviction was ‘inevitable’ is merely ‘relevant’ to the question of whether a substantial miscarriage of justice had occurred, and that in assessing inevitability, the Court of Appeal must ‘decide that question on the written record of the trial.’[30] The applicant submits that, applying Baini, as explained in Baini (No 2) and Andelman, the prosecution cannot demonstrate that the failure to properly instruct the jury did not result in a substantial miscarriage. In the absence of a direction from the trial judge, the applicant was denied the protection that was required to guard against the risk of impermissible reasoning. It cannot be said that, with an appropriate direction, there would have been no possibility that the jury may have entertained a reasonable doubt about the applicant’s guilt.
[29][2013] VSCA 25.
[30]Ibid [85], citing Baini v The Queen (2012) 246 CLR 469, 479.
There are natural limitations involved in proceeding on the record of the trial. There must be a logical, cogent and compelling basis, as distinct from speculation, for the conclusion that there has been no substantial miscarriage of justice. Approaching the question in that manner, I do not accept the applicant’s contention that the possibility that the jury impermissibly inferred consciousness of guilt from the applicant’s lies, permits the conclusion that, had the jury not so reasoned, the jury may have entertained a doubt as to his guilt.[31]
[31]Baini v The Queen (2012) 246 CLR 469, 481.
As stated above, the question of self-defence arose solely out of the applicant’s account of the incident during the record of interview. The applicant said Fielding, referred to as ‘Snowy’, had threatened him while bashing on his window:
APPLICANT: First he went bashing on my window … I went to the door and said ‘Mandy go home, go home please, Snowy take her and go home … I said ‘bye bye’. Pushed the door and went back to bed and lay down. One minute, two minutes — ‘you fuckin’ dog, get out here’. I didn’t know what
they were going on about, I really didn’t. And — ‘I’ll drag you out here and I’ll kill ya’.
The applicant said he’d been beaten up by two people on more than one previous occasion and was ‘sick of it’. The applicant later gave his account of the offences:
POLICE OFFICER: The crux of the matter really is you stabbing Amanda or Mandy and you stabbing Snowy and what you intended to do in stabbing.
APPLICANT: When somebody’s got their hands around ya neck you got to react somehow and instinct I mean instinct, ya know, normal reaction and I … (inaudible)
POLICE OFFICER: I didn’t hear that.
APPLICANT: I didn’t mean to do it.
….
APPLICANT: He was there. I came out and I stood there and he’s gone (sound effects) like that, like that…
POLICE OFFICER: …(inaudible) … all occurred the stabbing occurred like that?
APPLICANT: He, as soon as I come out there he went.
POLICE OFFICER: Grabbed you by the throat.
APPLICANT: Back.
POLICE OFFICER: And then you stabbed him?
APPLICANT: Yeah. Yeah fuck.
The police officers gave evidence that the applicant made gestures with his hands to indicate how Fielding had come towards him and raised his hands to the applicant’s throat. The applicant also indicated that he knew Lee had a history of violence and feared that she may have had a weapon in her hand. The applicant’s account of Fielding reaching for his throat, his fear of Lee and the alleged threats to kill made by Fielding were the only matters supporting the applicant’s claim that he was acting in self-defence.
The jury, in finding that the applicant possessed the requisite intent for murder and recklessly causing serious injury, must have been satisfied beyond reasonable doubt that the Crown had negated self-defence. The only evidence that gave rise to the possibility of self-defence was the content of the applicant’s record of interview. The jury must therefore have been satisfied that the account given by the applicant in his record of interview was false. Any consciousness of guilt reasoning would have had to be premised on the lies which the applicant advanced to support his claim of self-defence. Having regard to the objective physical evidence, the substance of Lee’s account and the implausibility of the applicant’s account which the jury rejected, a verdict of guilty was inevitable, had a Zoneff direction been given precluding consciousness of guilt reasoning. There was no substantial miscarriage of justice.
Ground 2
The applicant submits that the guilty verdict on the charge of murder was inconsistent with the not guilty verdict on the charge of intentionally causing serious injury.
The trial judge gave a separate consideration of each charge direction to the jury in his preliminary remarks. He instructed the jury that even if they found the applicant guilty on charge 1, it would not necessarily follow that he was guilty on charge 2. The issue of the alternative charges in respect of the attack on Lee was then discussed prior to closing addresses, and it was agreed that it should be left to the jury:
HIS HONOUR: One of the difficulties that arises in relation to this matter, particular [sic] in giving the jury directions about separate consideration, is that — no doubt Mr Walsh will exploit this — having charged the accused with intentionally causing serious injury, and then obviously charging him with murder, the Crown case is that in relation to the stabbing of Amanda Lee, his intention was to cause serious injury, but in relation to Mr Fielding, his intention was either to kill or cause really serious injury. This is an air of unreality about that, I would have thought, but still, given the circumstances - - -
MR D'ARCY: One of the difficulties the Crown faces with that prospect is that when they charge an attempted murder such as might have been open, they're told that the prospects of conviction in that regard, because of the need to prove intention to kill, has an air of unreality as well. You can't win either way.
HIS HONOUR: No, but this is an unusual situation.
MR D'ARCY: It is.
HIS HONOUR: Where — it's easy for me to say because I'm not in the situation, had the charge of attempted murder been laid, I wouldn't have been making that observation I can assure you, because in reality the Crown case, on one view of the Crown case it is, that he wanted to kill them both.
MR D'ARCY: Yes, and indeed, what I'd be simply submitting Your Honour is that the test for the Count 1 is a lower test than might have well been the case. It's a sub-set of the other count, as it were. Much in the same way as intention to kill and intention to cause really serious injury have an inter-relationship.
HIS HONOUR: It is a lower test.
MR D'ARCY: Yes.
HIS HONOUR: But it seems to me that I should tell the jury that were they to be satisfied the Crown had proved its case in relation to Count 1, that when they come to consider Count 2, whatever conclusion they've come to about the intent of the accused in relation to Amanda Lee is of no assistance to them at all, and can't be used.
MR D'ARCY: No, no. I agree with - - -
HIS HONOUR: In determining the element of intent in Count 2.
MR D'ARCY: Yes, I agree with that.
HIS HONOUR: It's quite a separate test.
MR D'ARCY: Yes, it is.
HIS HONOUR: Want to say anything about that, Mr Walsh.
MR WALSH: No, Your Honour, I agree with all of that.
His Honour later directed the jury as follows:
Now, the next thing I want to go to, is again, something else I mentioned on Monday, but as you know there are two counts on this indictment; one of intentionally causing serious injury and one count of murder, and they are separate, and need to regarded by you as separate matters, although they are being dealt with in one trial for the sake of convenience, and of course, they arise out of broadly the same set of circumstances, but this is not a case where the issue is whether or not the accused is guilty or not guilty of these charges, it is an issue as to whether he is (a) Guilty or not guilty of Count 1, and then (b) Whether he is guilty or not guilty of Count 2.
So you need to be careful, as I said at the start, to ensure the convenience of hearing the charges together does not override justice and the Crown and the accused are both entitled to have these matters separately considered. So if you were to reach a conclusion on one charge, it obviously does not follow that therefore the verdict should be the same on the other, and if you reached particular conclusion adverse to the accused on one charge, you should not reach a similar verdict on the other charge simply because you concluded that because he had been involved in the count you found him guilty of, he was therefore the sort of person who was likely to have committed the other offence as well.
They need to be dealt with separately, and separately in light of the evidence which applies to the particular charge, and you pose to yourselves the question, in relation to each of them, whether the evidence that is relevant to that charge, satisfies you beyond reasonable doubt of the guilt of the accused. If the answer is yes, then obviously the verdict follows, and if the answer is no, then the verdict will be not guilty.
In this case, of course, as you will see shortly, there are different tests which apply to Count 1 and Count 2. You will consider, in examining them, whether the Crown has established that the accused intended to cause Amanda Lee serious injury, as to Count 1, and whether they have established that he intended to kill Adam Fielding, or cause him really serious injury in relation to Count 2.
The issue of self-defence arises, of course, in relation to both counts, and you will examine that separately, bearing in mind that the Crown case, based on the evidence of Amanda Lee is, that the accused man came out of his house, went to her and stabbed her and then went to Fielding and stabbed him. So, the self-defence issue, in the way that it arises, the alternative being that Fielding had attacked the accused and that Lee was present, and in some way, presumably condoning the attack. A separate analysis is required for each count.
The difference between — and it is important that you understand this — the difference between the intent required for Count 1 — that is, the intention to cause serious injury — and the intent required to be proved in relation to Count 2 — that is, the intention to kill or cause really serious injury — is significant.
So to try to explain the difference, as I will shortly, if you are satisfied, for example, that the accused was guilty of Count 1, that would mean that you are satisfied that he stabbed Amanda Lee with an intention to cause her really serious injury. That conclusion would, in no way, inform your decision on Count 2 because it is a different intent and you would examine Count 2 quite separately. I am not suggesting this is the obvious outcome, but it is entirely possible that you would reach different verdicts on Count 1 and 2, but it does not follow automatically that if, for example, you found the accused guilty of Count 1, that you would necessarily find him guilty in relation to Count 2. You look, quite separately, at the evidence which is relied upon by the Crown, to support their submission to you, that you should infer the state of mind of the accused on the count of murder.
So, if you thought — and I am not suggesting that you necessarily would reach this conclusion — but if you thought that he intended to cause Amanda Lee serious injury, it would not tell you anything and you could not use that to support a conclusion that he also intended to kill or cause really serious injury to Fielding.
No exception was taken to this part of the charge which accorded with the course to which counsel had agreed.
Where a jury returns inconsistent verdicts, and no reasonable jury who had applied their mind properly to the facts of the case could have arrived at that conclusion, the conviction cannot stand.[32] If, however, there is a proper way by which the verdicts can be reconciled, that conclusion is generally to be accepted.[33]
[32]MacKenzie v The Queen (2002) 190 CLR 348, 366; R v Stone (UKCCA, Devlin J, 13 December 1954, unreported).
[33]SC v The Queen [2012] VSCA 286, [52].
It was not in dispute that the stab wounds to each victim were inflicted within seconds of each other with the same weapon. Lee gave evidence that the applicant lunged at her with the knife and yelled ‘I’ll kill the fuckin’ both of yas’. Both stab wounds required a significant amount of force. The applicant submits that there was no reasonable basis upon which the jury could be satisfied that the applicant possessed a different level of intention in stabbing each of the victims. The applicant contends that the circumstances of this case do not provide a sound basis for distinguishing the applicant’s level of intent in committing the two offences.
The applicant’s submission on this ground must be rejected. The trial was run on the basis that the charge of recklessly causing serious injury was a viable alternative to the charge of intentionally causing serious injury. Defence counsel agreed that the alternative charge was open. The jury approached the verdicts on the basis of the clear directions from the trial judge to consider each charge separately.
The trial judge, faced with the fact that the Crown had not charged the applicant with attempted murder on charge 1, gave a direction which if anything was unduly favourable to the applicant by instructing them that the intent in causing Lee serious injury could not support a conclusion as to intent on the second charge. This direction of the trial judge gave the defence what it undoubtedly thought was the forensic advantage of ensuring that the intent for charge 1 was not used to advance the Crown case that there was a murderous intent on charge 2. While the evidence on each charge must be the subject of separate consideration, where the conduct on two charges is separated by seconds, the judge could have instructed the jury that the evidence on each charge was relevant to the other and that the intent on the one charge could inform the intent on the other, though they need not necessarily be the same.
Although the applicant stabbed Lee and Fielding in immediate succession, it remained open to the jury to find that the applicant had a different intent, as a result of the difference in the quality of the evidence to support the first and second charges. It should be born in mind that it was the applicant’s account that the attack on Lee occurred when she moved towards him and appeared to have something in her hand. Lee’s account in evidence-in-chief of the moments preceding her being stabbed are not comprehensive or clear. Lee stated that the applicant came out of the front door of his house as Lee was trying to get Fielding to leave the premises:
PROSECUTOR: Was he agreeing with you to go?
LEE: He was — we'd already taken a few steps back sort of towards the gate when like it had gone quiet, and then the next thing I knew was Mick had come — the wire door has gone slamming up against the unit and he's coming running out and there was — when Mick came out of the unit he actually did say something to the effect of ‘I'm sick of people coming around hassling me’ — something like that. That's what he said as soon as he's opened the door, and as he's come running at me.
PROSECUTOR: What did he do when he came running at you?
LEE: Lunged the knife straight into my stomach.
PROSECUTOR: Did you see the knife?
LEE: Not until he had pulled it out of me.
PROSECUTOR: Again, is that the area that you pointed to earlier?
LEE: Yes.
PROSECUTOR: What was the effect of that on you?
LEE: I was instantly just like — I spun out because didn't expect it, not from somebody I actually had known like I did. It was like ‘wow’. I was scared, you know like - - -
PROSECUTOR: You said he put the knife in and then pulled it out?
LEE: Yes, he run straight at me and lunged it straight into my stomach and pulled it out and then he's gone straight for Snowy.
PROSECUTOR: How far away was Snowy from you?
LEE: He would have not been too much further than my arms length.
PROSECUTOR: A little over an arm's length or something?
LEE: Yes, (indistinct).
PROSECUTOR: Which way were you facing in terms of the accused, were you face to face?
LEE: Yes, because as soon as the wire door has gone bang up against the unit he's got me attention straight away.
PROSECUTOR: And what, have you turned towards the door have you?
LEE: No, I just looked, look, I was — yeah well actually I must have.
I — because at the time I was trying to — tryin' to — you know, like - - -PROSECUTOR: Snowy - - - were you bleeding at all?
LEE: Oh yeah, yeah it was just phht. Just flyin' out of me.
PROSECUTOR: What happened after he took the knife out of you — what happened next?
LEE: Oh, it all went down so quickly, from the moment that he — the knife was out of me, he's turned and got Snowy, straight in the lower — in the lower back.
PROSECUTOR: What aspect of Snowy was facing the accused when he was stabbed? What part of his body was facing the accused?
LEE: Oh, his, his front. They were face — they were like — um — front to front, you know.
PROSECUTOR: How did he achieve putting the knife into the back of Snowy?
LEE: He — his — when he stabbed me, on — on — he's — he's come runnin' up the path at me, got me, and he's coming in there as he's pulled it out there, he's more or less like — Snowy — Snowy would have spun out, he would have seen what Mick had actually done, so he would have more than likely taken a step towards — and it made it even easier that - - -
PROSECUTOR: Just tell us what you saw. What did you see of the way he manoeuvred to get the knife into Snowy's back?
LEE: Straight in — straight in the lower back and pull him — um — pulled it — he rammed it up and pulled him towards him, like with a - - -
PROSECUTOR: Then what happened with the knife. Did it stay in him?
LEE: No, Mick had a hold of it still.
PROSECUTOR: So what happened with the knife?
LEE: Mick still had it.
PROSECUTOR: Did he pull it out at some stage?
LEE: Oh, yes, yes.
Lee did not describe the incident with any precision. Her description of the attack on Fielding is vague. This is not surprising, having regard to her level of intoxication and the speed with which these events occurred. The respondent submitted with force that there was a difference in the quality of the evidence on the two charges. On the basis of her limited account of the seconds preceding the stabbing, it was open to the jury to have a reasonable doubt about whether or not the attack on Lee was intentional. There could be no doubt that the attack was, at the very least, reckless.
The applicant submits that if the jury did not accept Lee’s evidence as to the circumstances in which she received her wound, it would be very difficult for the jury to have had any greater confidence in her evidence as to the circumstances in which Fielding was wounded, particularly as she was at that stage suffering from a serious stab wound herself. I do not accept that is so. The fact that the jury could not be satisfied beyond reasonable doubt on the basis of Lee’s evidence that the applicant had the requisite intent to sustain a charge of intentionally causing serious injury was not fatal to Lee’s credibility. The submission suffers from the misconception that the credibility of a witness is an homogenous and indivisible whole; that is, that if part of the evidence lacks credibility or is less certain, then the whole must be treated as fatally tainted.[34]
[34]R v Ware [1997] 1 VR 647, 650 (Hedigan J).
In this case, there were features of Lee’s evidence, the applicant’s evidence and physical evidence in relation to the murder charge that distinguished it from the charge of intentionally causing serious injury. The applicant’s account of the attack on Fielding was unquestionably false. The applicant refused to accept that he had stabbed Fielding in the back. Lee’s evidence of the two charges was not wholly clear. It was open to the jury to find that there was some uncertainty as to the precise circumstances in which Lee came to be stabbed and hence some doubt as to the applicant’s intent, but that there was no such uncertainty when the applicant stabbed Fielding in the back.
I would grant leave to appeal against conviction on both grounds and dismiss the appeal.
Appeal against sentence
The applicant seeks leave to appeal against his sentence on charge 2.
In sentencing the applicant on the charge of murder, his Honour stated that the applicant was to be sentenced as a serious violent offender pursuant to Part 2A of the Sentencing Act 1991 (‘the Sentencing Act’). The respondent concedes that the applicant was not a serious violent offender within the meaning of the Sentencing Act and was not to be so sentenced.
Section 6B(2)(b) defines a ‘serious violent offender’ as:
an offender (other than a young offender) who has been convicted of a serious violent offence for which he or she has been sentenced to a term of imprisonment or detention in a youth justice centre.
The conviction referred to in s 6B(2)(b) that enlivens the operation of Part 2A must be a different conviction to that on which the offender is now to be sentenced.[35] The conviction for murder in this case was the applicant’s first conviction for a serious violent offence. The conviction of recklessly causing serious injury, being charge 1 and the first in time, was not a serious violent offence as defined by the Sentencing Act.[36]
[35]R v Arnautovic (2001) 121 A Crim R 412, 413–4 [4].
[36]See Schedule 1 of the Sentencing Act 1991, cl 3.
The applicant submits that his Honour’s error is material and should reopen this Court’s sentencing discretion. The applicant also submits that the trial judge had the serious offender provisions in mind when sentencing the applicant on the charge of murder. Under s 6D of the Sentencing Act, the sentencing judge must regard the protection of the community from the offender as the principal purpose for which the sentence is imposed, and may impose a sentence that would otherwise be disproportionate to the gravity of the offending. While the applicant accepts that as the offences involved separate victims and separate acts of violence, some cumulation was appropriate, he submits that the level of cumulation was erroneously influenced by the requirement in s 6E of the Sentencing Act that sentences for serious violent offences be served cumulatively upon other sentences of imprisonment imposed on that offender.
It is clear from the sentencing remarks that his Honour did not consider it necessary to impose a disproportionate sentence. His Honour made no reference to whether protection of the community assumed any greater prominence in his sentencing synthesis but it seems unlikely having regard to the sentence that was imposed. As error is conceded the question arises whether a different sentence should be imposed.
Allowing all the relevant mitigating circumstances which the applicant could call in aid, as set out in the sentencing remarks, a sentence of twenty years’ imprisonment following a trial for murder committed in the present circumstances does not approach the higher end of the range of sentences that might be imposed for such an offence. I do not consider a less severe sentence would be appropriate. Accordingly I would refuse leave to appeal against sentence.
PRIEST JA:
I have had the considerable benefit of reading the reasons of Redlich JA in draft. Specifically for the reasons he gives, I agree that neither ground 2 of the
application for leave to appeal against conviction (which claims that the verdicts are inconsistent), nor the application for leave to appeal against sentence, can be upheld.
As to the first ground touching conviction, which complains of a failure to direct on the applicant’s alleged lies, I agree with Redlich JA, for the reasons that he gives, that in the circumstances of this case, a Zoneff direction should have been given.
Moreover, in my opinion, a Broadhurst direction should have been given. Counsel for the respondent conceded in oral argument that ‘it would have been better’ if a Broadhurst direction had been given (although he contended that the failure to do so was not productive of a miscarriage of justice). In my opinion, not only would it have been ‘better’ for such a direction to have been given, but — having regard to the prosecutor’s final address — such a direction was required. The judge should have made plain that to the jury that they ought not to reason that simply because they thought the applicant was lying (if they did), it must be because he is guilty.[37] It was an error for the judge to fail to do so.
[37]Broadhurst v The Queen [1964] AC 441, 447.
Due to the failure to give a Zoneff direction, and the failure to give a Broadhurst direction, there has, in my opinion, been an error (or errors) in the trial.[38]
[38]Criminal Procedure Act 2009, s 276(1)(b).
The more difficult question, and one which has given me considerable pause, is whether as a result of the errors there has been a substantial miscarriage of justice. As Redlich JA has demonstrated, the prosecutor’s suggestions in his final address concerning the applicant’s alleged lies invited ‘a process of inferential reasoning from lies to guilt’. His Honour does not accept, however, the applicant’s contention ‘that the possibility that the jury impermissibly inferred consciousness of guilt from the applicant’s lies, permits the conclusion that, had the jury not so reasoned, the jury may have entertained a reasonable doubt about the applicant’s guilt’. After
considerable reflection, and not without a deal of hesitation, I have concluded that his Honour’s conclusion is correct.
I have formed the view that, absent the identified error (or errors), the result in the trial would have been no different.[39] The claim to self-defence was exceptionally weak. In my view the physical evidence eloquently rebutted any claim to self-defence. Ms Lee, who was unarmed, was stabbed in the stomach. It is impossible to see how, in all of the circumstances, a conclusion other than that the applicant was not acting in self-defence when that wound was delivered could ever be reached. Any assertion by the applicant that he acted in self-defence because he knew Ms Lee had a history of violence, and that he feared that she may have had a weapon in her hand, doubtless would be rejected by any sensible tribunal of fact. Conviction on the charge of recklessly causing injury was thus inevitable.
[39]Baini v The Queen (2012) 246 CLR 469, 481 [32].
Similarly, Mr Fielding was stabbed in the back. The applicant had claimed, in effect, that when he stabbed him, Mr Fielding had been reaching for his throat; and that when he stabbed him, he ‘didn’t mean to do it’. It seems to me that the physical evidence again puts paid to any suggestion that the applicant was acting in self-defence. Thus any claim by the applicant that he had stabbed Mr Fielding in the back in order to defend himself certainly must fall to be rejected. Conviction on the charge of murder therefore was, in my view, inevitable.
My hesitance has been borne of the possibility that the jury might have used rejection of the applicant’s assertions in the record of interview as founding an inference that he lied, and that he did so out of a consciousness of guilt. Rejection of the applicant’s version, however, leads unerringly to the conclusion that the truth must lie elsewhere. Given that there is nothing else in the circumstances which might raise a doubt as to the applicant’s guilt once his version in the interview is rejected, conviction on both charges must be seen as inevitable.
For these reasons, I agree with the disposition of the applications as proposed by Redlich JA.
ROBSON AJA:
I have had the advantage of reading in draft the reasons of Redlich JA. For the reasons given by Redlich JA, I agree that leave to appeal against conviction should be granted and the appeal dismissed. I also agree, for the reasons his Honour gives, that leave to appeal against sentence should be refused.
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