Dent v The Queen - [2021] SASCFC 4

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
DENT v THE QUEEN
[2021] SASCFC 4
Judgment of The Court of Criminal Appeal
(The Honourable Justice Kelly, the Honourable Justice Peek and the Honourable Justice Parker)
1 February 2021

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION
CRIMINAL LAW - EVIDENCE - CONFESSIONS AND ADMISSIONS - STATEMENTS - VOLUNTARY STATEMENTS - FUNCTIONS OF JUDGE AND JURY - DIRECTIONS TO JURY
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - STANDARD OF PROOF - CIRCUMSTANTIAL EVIDENCE - GENERALLY
Appeal against conviction.
The appellant was convicted after a trial by jury of one count of murder contrary to s 11 of the Criminal Law Consolidation Act 1935 (SA). The appellant murdered her partner on or around 3 December 2015 by administering a cocktail of prescription medication. The appellant stood to benefit financially from the murder, as she was the sole beneficiary of the deceased’s estate.
The prosecution case was entirely circumstantial. At trial, evidence of ‘lies’ or statements made by the appellant in various forms were admitted.
The appellant appeals against the conviction on the basis that the fair trial of the appellant miscarried due to the admission of those statements, or the failure to adequately direct the jury as to the proper use of those statements. The appellant also contends that the verdict of the jury is unreasonable, unsatisfactory and against the weight of the evidence.
Held per Kelly J (Peek and Parker JJ agreeing), allowing the appeal, quashing the conviction and remitting the matter for retrial:
1.      The complexity and interaction of the various categories of lies, which were relied on for different reasons, required clear and careful directions tailored to each particular category. It was not sufficient to give a generic warning to the jury addressing all of the lies or statements made by the appellant.
2.      It was essential that each specific asserted lie be identified. In this absence of this identification, the jury may have considered all of the lies collectively when considering the appellant’s credit and whether and what lies were probative of guilt.
3.      Evidence of lies told by the appellant after the deceased’s death required a full Edwards direction as they can only be properly characterised as lies capable of evidencing a consciousness of guilt.
4.      Despite the strength of the prosecution case against the appellant, the Judge’s directions as to the lies was, in all of the circumstances of this case, inadequate and may have led to a miscarriage of justice.
Evidence Act 1929 (SA) s 34R; Criminal Procedure Act 1921 (SA) s 158(2), referred to.
Edwards v The Queen (1993) 178 CLR 193; Harris v The Queen (1990) 55 SASR 321; R v Quist (2017) 127 SASR 471; The Queen v Baden-Clay (2016) 258 CLR 308; The Queen v Hillier (2007) 228 CLR 618, discussed.
Weiss v The Queen (2005) 224 CLR 300, considered.

DENT v THE QUEEN
[2021] SASCFC 4

Court of Criminal Appeal: Kelly, Peek and Parker JJ
KELLY J.
Introduction

After a trial by jury, the appellant was convicted of murdering her partner, David Lawrence. Mr Lawrence was found deceased in his bed on the morning of 3 December 2015. The cause of his death was an overdose of prescription drugs, including tramadol and morphine. The appellant had these drugs available to her in excessive quantities, as she suffered from chronic pain.
The appellant appeals against her conviction on six grounds: It is contended that the fair trial of the appellant miscarried due to:
1.The admission of and/or failure to adequately direct the jury in relation to evidence of statements made by the appellant.
2.The admission of and/or failure to direct the jury in relation to evidence of alleged statements or past warnings made to the deceased in relation to his money and the use of such evidence by the prosecution.
3.The imbalance in the Summing Up and/or a failure by the Learned Trial Judge to adequately apply the law to the evidence and issues in the case.
4.The failure of the Learned Trial Judge to adequately present the defence case and direct the jury as to the application of the burden and standard of proof to evidence in the prosecution case that was exculpatory and to the appellant’s exculpatory statements.
5.The inadequacy of the directions of the Learned Trial Judge in relation to the permissible and impermissible use of the evidence of the admissions by the appellant that she had given the deceased Valium.
The sixth ground of appeal is that the Learned Judge erred in failing to hold that there was no case to answer. In the alternative, the appellant argues that the verdict of the jury is unreasonable, unsatisfactory and against the weight of the evidence.
On 15 July 2020, a single Judge of this Court granted permission to appeal in respect of all six grounds.
Background
The case against the appellant was circumstantial. It relied on 15 topics of circumstantial evidence that were to be considered in combination. Due to the nature of the appeal grounds and the submissions made by the parties, it is necessary to summarise the evidence at trial in some detail.
Evidence of motive
The prosecution case was that the appellant murdered the deceased because she stood to benefit financially from his death. The appellant was the sole executor and beneficiary of the deceased’s will, which was created and signed on 25 September 2015, nine weeks before the deceased’s death. The appellant was also the sole beneficiary of the deceased’s superannuation due to a binding death nomination signed on 4 October 2014. In November 2015, the deceased’s superannuation fund held a balance of approximately $175,462.
Shortly before his death, there was evidence that the deceased was contemplating revisiting his will and that the appellant was aware of this. In late November 2015, the deceased asked his neighbour, Mr Geissler, for his full name, address and date of birth, as he needed to put those details in his will. Mr Geissler gave evidence that the appellant was present when the deceased made this request. The deceased’s brother, Kym Lawrence, also gave evidence that on 29 November 2015, the appellant telephoned him and asked whether the deceased had spoken to him about his will. On the prosecution case, these circumstances were relevant to the timing of the murder.
The relationship between the appellant and the deceased
The appellant and the deceased met in or around 2014. The circumstances in which they met are unclear. There was evidence that the appellant had told a friend, Ms Hussey, that she met the deceased at a service station one night when they were both filling their cars with petrol. However, there was also evidence that the appellant had met the deceased through a mutual acquaintance, Ms Brown, who the appellant moved in with in mid-July 2014.
Soon after meeting the deceased and approximately two weeks after the appellant moved in with Ms Brown, the appellant moved into the deceased’s Morphett Vale residence. The appellant had complained about mice at Ms Brown’s house and as a result, the deceased invited her to live with him. At the time of moving out, the appellant told Ms Brown that her and the deceased were in love and that she was moving in with him. The appellant lived with the deceased until his death.
At trial, there was evidence of two sides to the relationship between the appellant and the deceased. A number of witnesses, including the deceased’s family and friends, gave evidence that they appeared happy together, enjoyed each other’s company, spoke glowingly about one another and that they had plans for the future. The Court heard evidence that the appellant and the deceased had purchased a motorhome together, travelled interstate together and were renovating their home. The deceased told many of his friends that he was in love with the appellant and told three friends that him and the appellant were engaged to be married. A friend of the deceased, Ms Hussey, saw the appellant wearing an engagement ring approximately five to six months before the deceased’s death. Another friend, Mr Campanella, gave evidence that the couple discussed getting married and that the deceased wanted to get married quickly but the appellant wanted to wait until the will was signed. Despite this, the deceased did not tell any family members or close friends that he was engaged to the appellant, which, on the prosecution case, meant that he was having second thoughts about the relationship.
There was also evidence of discord between the appellant and the deceased. The deceased’s brother, Rodney Lawrence, gave evidence that during a phone call with the deceased in November 2015, he overheard him swearing and appearing angry with the appellant, which was out of character. In the months leading up to his death, the deceased also complained to Tracey Lawrence about the appellant. He complained about having to build another shoe cupboard for her and that she did not understand how renovations worked.
Importantly, over the course of the relationship, the appellant made a number of representations to the deceased’s friends and family regarding her occupational and personal background. These included representations that she previously worked as a theatre nurse, that she had been a nanny to the Royal family, that she was previously married to the heir of the Johnson and Johnson fortune and that her brother was a top anaesthetist in Sydney. On the prosecution case, the ‘surprising and unlikely’ nature of the statements would have been obvious to the deceased and must have caused him to have doubts about the appellant’s authenticity.
Money spent on the appellant during the relationship
At the time of his death, the deceased had been in a relationship with the appellant for approximately 18 months. During this time, the deceased spent a significant amount of money on her behalf. Between November 2014 and November 2015, the deceased purchased an $89,900 motorhome for himself and the appellant, paid the appellant’s legal fees in the amount of $6,000, made $11,000 worth of payments to the appellant’s brother and purchased a Mercedes vehicle for the appellant for $8,000. These payments were drawn from the deceased’s superannuation account and were made on the basis that the appellant would repay him once she received a personal injury payout.
Under a week before his death, the deceased met with his financial advisor, Mr Appleby. Mr Appleby warned the deceased that there were longevity issues with his superannuation fund, in that his current level of spending could not be sustained. The deceased stated that he was not worried, as the deficit would be made up once the appellant received her payout. There was evidence that the deceased was expecting the payout to be ‘imminent’ from as early as November 2014. The appellant did not receive the payout until after the deceased’s death.
Evidence of past warnings given to the deceased
Another topic of circumstantial evidence led by the prosecution was that the deceased had been warned in the past to be cautious about sharing with other people how much money he had and to be cautious about the intentions of others. Ms Fisher, a friend who the deceased pursued romantically prior to meeting the appellant, gave evidence that the deceased spoke very openly about his financial position and that she told him to be careful because there are gold diggers out there. The deceased received similar warnings from his long-term friend Mr Dalton and his sister Susan Lawrence, after he told them that he was paying the appellant’s legal fees. In this context, Mr Dalton advised the deceased not to disclose his financial circumstances and to be wary. Ms Lawrence told him to be cautious about getting involved when he did not know all the facts.
Evidence of the deceased’s health shortly before his death
Around the time of his death, there was evidence that the deceased was experiencing back pain and had sought medical attention.
On the afternoon of 25 November 2015, the deceased, accompanied by the appellant, visited Dr Osborne. The first concern raised was erectile dysfunction, followed by a discussion of the deceased’s back pain. The deceased described the pain as minimal and only present when he moved around. He stated that he had not taken any medication, including Panadol, for the pain. Dr Osborne prescribed Naproxen, an anti-inflammatory drug, to the deceased. A few days later, on 29 November 2015, the deceased had a consultation with Dr Giamos. During this appointment, Dr Giamos observed no impairment to the deceased’s movement and no sign that he was in excruciating pain or under the influence of any drug. The deceased stated that the pain was not completely relieved by the Naproxen but that it was not getting worse. Dr Giamos prescribed 20 tablets of Panadeine Forte to the deceased and directed that he take no more than eight per day.
Prior to and in between these medical consultations, numerous witnesses observed the deceased to be physically able and unimpaired. On 24 November 2015, the deceased offered to assist his neighbour, Mr Dalton, erect steel beams for a pergola. The deceased made no mention of being less able to perform manual work. Around the 25 November 2015, another neighbour, Mr Geissler, observed the deceased digging in the soil at the front of the house. When they spoke, Mr Geissler did not observe any impairment to the deceased’s movement and the deceased did not complain about his back. On the same day, Mr Walsh, a friend of the deceased, saw the deceased lifting and manipulating boxes. The deceased told Mr Walsh that his back was fine.
On 26 November 2015, the deceased assisted a friend, Mr Campanella with fixing brakes on a trailer. While the deceased appeared to be unimpaired, he commented that his back was sore and told Mr Campanella that he would not be able to assist the following day because he wanted to give his back a break. On 28 November 2015, the deceased’s neighbour, Ms Dalton, heard the deceased in his rear woodworking shed.
Evidence of the deceased’s cause of death
The deceased died from an overdose of prescription drugs. On 3 December 2015, Detective Rex located a glass with a small quantity of yellow liquid on a bedside table that was closest to the deceased. The liquid smelled like pineapple juice and was found to contain traces of morphine, codeine, tramadol, diazepam (Valium), paracetamol and naproxen, all of which were detected in the deceased’s blood. Given the concurrence of drugs across both samples, Professor White gave evidence that the most likely explanation was that the deceased ingested the pineapple juice with the drugs dissolved in it.
Dr Langlois, who conducted the autopsy of the deceased, stated that the level of morphine present in the deceased was itself capable of causing death. Professor White gave evidence that the deceased would have had to consume an excessive quantity of tablets to reach the level of drugs detected in his body. He would have had to consume in excess of 20 uncrushed tablets or in excess of 10 100 milligram crushed tablets of morphine. To achieve the level of tramadol detected, the deceased would have had to consume 14 50 milligram tablets or four 200 milligram tablets, if the tablets were crushed. Professor White stated that if a person with no established tolerance took as little as two tablets of morphine or tramadol, they would be sedated, very drowsy and may experience nausea or vomiting.
The deceased’s sisters and his friends, Mr Dalton and Mr Read, gave evidence that the deceased was stoic and did not take medication at the first sign of pain and illness. In addition, the appellant herself stated to police that she could not see the deceased overdosing on medication, that he knew what medications were dangerous and that she could not see him taking morphine. In a telephone intercept call, the appellant stated that the deceased had “never taken anything except a Nurofen the whole time I’d known him”.
The appellant’s access to prescription medication
During the time that the deceased knew the appellant, the appellant had access to a significant amount of prescription medication to address a chronic pain problem. In 2015, the appellant’s General Practitioner prescribed the appellant morphine, tramadol, Valium and nitrazepam, all of which were located in the deceased’s body. Professor White reviewed the appellant’s prescription data and described her consumption of drugs as grossly excessive and at a level that posed a risk of addiction or overdose.
At trial, the Court heard that the appellant had offered her prescription medication to people in the past, including the deceased. On 3 December 2015, the appellant told Officer Cain, Tracey Lawrence and Dr Osborne that the deceased was in so much pain that she gave him some of her Valium. In a 2015 diary that allegedly belonged to the appellant, there was a handwritten note from the day of the deceased’s medical appointment with Dr Giamos which stated, ‘Ask for more Antenex,[1] as I’ve been using mine on him’. The appellant later denied providing Valium to the deceased in an interview with Detective Tucker.
[1] Please note that Antenex, Valium and diazepam all refer to the same drug.
At the time of investigation, the appellant was expected to have 128 tablets of morphine, 150 tablets of tramadol, 392 tablets of Valium and 221 tablets of nitrazepam in her possession. A significantly lower number of tablets of each medication were located.
Events leading up to the deceased’s death
The prosecution case was that in the days prior to the deceased’s death, the appellant isolated him from his friends and family.
On 28 November 2015, the appellant phoned Tracey Lawrence using the deceased’s phone and told her that the deceased hurt his back and that she should not visit or contact him. The appellant further stated that she had taken the deceased’s phone away so he could rest. The following night, the appellant called Kym Lawrence and told him not to contact the deceased because he was in bed with a sore back. On 30 November 2015, Mr Walsh, a close friend of the deceased, sent him a worried text message, which was not responded to. Mr Walsh had organised to take the appellant and the deceased to an Indian restaurant on the deceased’s birthday.
Between 30 November 2015 and 3 December 2015, the deceased did not answer telephone calls or respond to text messages. This period of isolation included 1 December 2015, which was the deceased’s 62nd birthday.
Mr Walsh called the deceased five times on 1 December 2015 and six times on 2 December 2015. He also sent the deceased two text messages expressing his worry. None of his calls were returned and the text messages were not responded to. On 2 December 2015, the deceased’s school friend, Mr Herbert, texted the deceased to tell him that his father had passed away. Although the deceased was close to Mr Herbert’s family, he did not respond to that text message.
Another friend of the deceased, Mr Barker, called him three times on 2 December 2015. The deceased was in the habit of returning calls even when they came from an unfamiliar number. Mr Barker did not receive any call back.
On 2 December 2015, the deceased also failed to attend a scheduled medical appointment. Two hours after the medical appointment was missed, the appellant made a call to the medical clinic and scheduled another appointment for the deceased two days ahead. Tracey Lawrence gave evidence that the appellant later told her that she did not take the deceased to the doctor on 2 December because he was unresponsive. When asked why she did not seek urgent medical attention, the appellant commented that the deceased did not like hospitals.

During the period of isolation, electronic evidence indicated that the appellant was using her phone to make calls and access internet data. There was also evidence that the deceased’s phone was being used to access voicemails and internet data.
Events on 3 December 2015
At 5.15 am on 3 December 2015, telephone records indicated that the appellant telephoned the National Australia Bank (NAB). The line was open for 49 seconds. It was an agreed fact that the appellant had an account with NAB and the deceased did not.
At 6.07 am, the appellant made a call to triple zero. While she waited for the ambulance, there was evidence that she accessed YouTube on her mobile phone.
When the ambulance arrived at 6.24 am, the appellant told them that she had just woken up and found her partner dead in bed next to her. Ambulance officer, Mr Harrison, found the deceased in bed, with what appeared to be blood around his mouth and nose. He was cold to touch and showed signs of lividity and rigor mortis. Dr Langlois gave evidence that these features suggested that the deceased had been dead for a number of hours before paramedics arrived.
The police began arriving at the residence shortly after 7.00 am. The appellant told Constable Cain that the deceased’s back pain was worsening, that she offered him Valium, that the deceased would not let her take him to the Emergency Department and that on 30 November and 1 December, the deceased was lethargic and sleeping a lot. The appellant stated that she woke at about 6.40am, took her puppy out and then came back and asked the deceased if he wanted a cup of tea. It was then that she realised he had blood around his mouth.
During the course of the day and in the days following, the appellant made various statements about how she discovered the deceased. She told Dr Osborne that she woke during the night to find the deceased dead with blood around his nose and mouth. She stated that she cleaned him up and then cried in shock before calling the ambulance. A couple of days later, the appellant told Tracey Dalton, who lived at the back of the deceased’s house, that she woke up at 3.30am and smelt a reeking smell. She thought that it was her puppy and turned on the light, to discover the deceased. The appellant told Harley Geissler a similar version of events and stated that she did not call anyone immediately and sat with the deceased for between one-and-a-half and two hours.
When Rodney and Tracey Lawrence attended the Morphett Vale house on 3 December 2015, the appellant, unprompted by any accusation, said, “you can ask me anything. I didn’t kill him”.
The appellant’s conduct in relation to the deceased’s financial affairs
On the prosecution case, the appellant’s conduct on 3 December 2015 demonstrated that she was focused on financial affairs. That morning, when Tracey Lawrence and Rodney Lawrence arrived at the house, the appellant told them in an aggressive tone that the Lawrence family were not to enter the house or take anything from it, as all the belongings were hers. The appellant further stated that she had the deceased’s will, that the residence had been left to her and that if the family contested the will they would get $25 each.
Sometime before midday, the appellant called the deceased’s financial advisor at Bridges Financial Services. She told an employee that the deceased had died and asked whether she could use money from the deceased’s superannuation account to pay for the funeral.
On 4 December 2015, when the deceased’s family gathered at the Morphett Vale house, the appellant produced the deceased’s signed will and said, “David’s left everything to me. The Lawrence family get nothing”.
The Court also heard evidence that after the deceased’s death, the appellant allegedly created a number of documents to represent the deceased as estranged from his family, in order to secure her financial benefit. These documents were tendered by the prosecution and included letters addressed to various people, handwritten notes and diary entries. In one letter addressed to the appellant, the deceased purportedly wrote:
I know you’ve heard me telling people I don’t have a family or they’re all dead and everyone that knew us well is used to my standard answer, they’re just a mob of people getting around with the same surname.
There was also a suggestion in multiple handwritten diary entries that the deceased viewed his family as horrible and greedy and expressed that he was upset with them because they had shut him out for 30 years.
In addition, on the back of a piece of artwork that was tendered, there was a handwritten notation that stated:
6.30, 27/11/15. I signed this picture over to Wendie Dent. Is the only one who will treasure it. I have a feeling my time is almost up, and I hate the mob to get their greedy hands on them.
A handwriting expert, Ms Ockleshaw, gave evidence that there was an indication that the notation was written by the appellant.
Dealings with the deceased’s will
The deceased’s will was signed on 25 September 2015, while the deceased was with the appellant’s family in Dapto, New South Wales. It was said to have been typed by the appellant’s sister, Dianne Dent, and was witnessed by Dianne Dent, and the appellant’s brother-in-law, Barry Gibson. The will contained spelling errors, including in the names of the deceased’s sisters and his neighbour, Mr Geissler. It also contained reference to the care of a dog ‘Whatt’ who had passed away prior to the deceased.
After the deceased’s death, an electronic document that was almost identical to the signed will was located on the computer of Barry Gibson and Dianne Dent. Electronic analysis indicated that the document was created on 25 September 2015. The difference between the signed will and the electronic document was that reference to the dog ‘Whatt’ had been changed to ‘our family pet’. Metadata showed that the electronic document was last modified on 1 December 2015, the day after the deceased was last seen alive or spoken to by any of his family and friends.
A print out of the electronic document was located at the Morphett Vale address by Susan Lawrence. It was not signed by the deceased, but had been pre-witnessed by Dianne Dent and Barry Gibson. The spelling errors in the names of Susan Lawrence, Tracy Lawrence and Harley Geissler remained.
Post death statements made by the appellant
In the months following the deceased’s death, there was evidence that the appellant had made statements to various people, including police, that the deceased anticipated his own death, died of natural causes and was in pain and agony.
In intercepted telephone calls, the appellant stated to various people that the deceased’s bowel, pancreas and spleen were shredded and that he must have been in ‘tragic pain and agony’ at the time of his death. She also stated that the deceased was full of septicaemia and that he had asbestosis. Similar statements about the deceased’s health were made to Detective Tucker during a recorded interview on 17 February 2017.
Forensic pathologist, Dr Langlois, found that the deceased’s bowel, spleen and pancreas were not shredded, that there was no septicaemia and that the deceased’s death was not caused by asbestosis.
After the deceased’s death, the appellant also made statements to suggest that there was a good reason why she did not seek medical assistance for the deceased. She told others that the deceased made her promise that she would allow him to die in his own bed, that he would not be put on life support and that he wanted no one else with him when he died. All of these statements were made prior to the appellant being informed that the deceased had died from an overdose of prescription medication.
During her interview with Detective Tucker, the appellant further stated that the deceased did not want to be resuscitated or die in a hospital and that on the Sunday before his death, he was in so much pain that he could not stand up. She insisted that she did not give the deceased any medication, including Valium, and that if she had tried to force him, he would not have taken it anyway.
DNA evidence
A large amount of medication packaging was located at the Morphett Vale residence and seized for DNA analysis. Packaging for Panadeine Forte, diazepam, nitrazepam and tramadol was located in a rubbish bin that was at the front of the deceased’s premises. Further medication was located inside the house in a stripy cosmetic bag. Forensic scientist, Dr Abarno, gave evidence that the deceased’s DNA was not detected on any of the packaging seized. However, the appellant’s DNA was located on an empty bottle of diazepam, a blister pack of morphine tablets and a bottle of diazepam containing 28 tablets.
Grounds of appeal
I now turn to consider each ground of appeal.
Ground 1 – Evidence of lies
The first ground of appeal concerns the admission of, and directions concerning, evidence of statements made by the appellant. At trial, the prosecution led evidence of statements or ‘lies’ told by the appellant before and after the deceased’s death. These statements were relied on by the prosecution in different ways and were divided into three categories.
The first category included representations made by the appellant prior to the death of the deceased regarding her occupational and personal history. The second category included statements made by the appellant in writing purporting to be the deceased expressing his testamentary wishes in anticipation of his death. The third category included statements made by the appellant after the deceased’s death about the cause and circumstances of his death.
The appellant’s submissions in respect of this ground are two-fold. Firstly, the appellant complains that the evidence of the personal history lies, including in particular the ‘nurse lie’, was not properly admitted. Secondly, the appellant complains that even if it was properly admitted for a certain purpose, the prosecution unfairly prejudiced the appellant and caused the trial to miscarry by using it for a different purpose contrary to what was intimated in its opening address.
The appellant’s complaint concerning the directions given by the trial Judge, in a nutshell, is that the lies directions were generic and not tailored to each specific statement relied on by the prosecution as a lie. Instead, all the lies of quite different kinds, which had been told in different circumstances with different possible implications and alternative explanations, were dealt with collectively.
In particular, the appellant contended that there was a failure to warn the jury specifically in relation to the ‘nurse lie’ and a failure to warn the jury that the use of the evidence suggested by the prosecution in its final address was quite inconsistent with the suggestion that the deceased unquestioningly took a lethal dose of the drugs because he believed the appellant was a nurse. This issue was the subject of a mistrial application by the appellant at the conclusion of the prosecution closing address.
In order to understand the appellant’s submission, it is necessary to say a little more about the role that the lies played in the trial.
In relation to the first category of lies, being the occupational and personal history lies, there was initially no objection to the admission of evidence of those statements. This is with the exception of the ‘nurse lie’, which was always objected to. However, it is important to note that the appellant also relied on some of the occupational and personal history statements to establish that the appellant, even prior to the deceased’s death, was prone to making exaggerated claims about her personal background. If the jury were to accept the defence submission about the nature of those lies and the reasons for them, they had the potential to undermine the probative force relied on by the prosecution in relation to the post-death lies.
The Judge permitted the prosecution to lead evidence of the ‘nurse lie’, on the basis that the evidence had some probative value in that it had the tendency to prove circumstances that might have given the deceased confidence to have taken medication provided by the appellant or on her recommendation. That the appellant was not a nurse and that her claim to have been a nurse in the past was false was proved by an agreed fact at the trial. In my view, this evidence was admissible and nothing which occurred during the trial rendered it inadmissible.
The remainder of the statements made by the appellant about her personal background and history were never proven to be lies.
The second category of lies were lies which were told in the form of various forgeries alleged to have been executed by the appellant. They stood in a separate category relevant to motive. The prosecution relied on those lies in the following way: if the jury were satisfied that the appellant was the author of those documents, the prosecution invited the jury to add those forgeries to the body of circumstantial evidence necessary to satisfy the jury beyond reasonable doubt that the appellant had a motive to kill the deceased.
The third category of lies relied on by the prosecution related to the appellant’s statements about the cause and circumstances of the deceased’s death. Some of these statements were proven to have been made prior to the appellant becoming aware of the deceased’s cause of death, as established by the post-mortem. Some were lies told after and indeed at a time when the appellant was already a suspect. The content of some of these statements is outlined in paragraphs [49]-[53] of this judgment.
The prosecution relied on the making of those statements by the appellant to suggest that they were made out of a consciousness of guilt, in that the appellant sought to lay a false trail to direct suspicion away from her and to provide a plausible explanation for the circumstances in which the deceased died.
The evidence before the jury was that the deceased had been observed in the days before his death not to be suffering from any excruciating or debilitating pain. The post-mortem evidence established that he was not suffering from asbestosis, septicaemia, or any tumour in his diverticulum.
The specific statements made by the appellant were identified by the prosecution and set out in a summary document entitled ‘Prosecution summary on lies alleged to be probative of guilt’ dated 31 March 2020.
The Judge’s directions on lies
The Judge commenced the directions as to lies with a standard general direction before continuing as follows:
As I have said, the prosecution’s case is a circumstantial case.
Part of the circumstantial case relied upon is the evidence of lies told by the accused subsequent to the death of Mr Lawrence. Those lies are statements she made to various people that the cause of Mr Lawrence’s death was asbestosis or septicaemia or a tumour in his diverticulum; statements about Mr Lawrence’s physical condition prior to his death, including that his bowel was shredded and he must have been in agonising pain; that he knew he had asbestosis; and he knew he had a terminal illness and that his death was imminent. There is also a separate category of lies being inscriptions, letters and notes written by the accused purporting to be written by the deceased for the purpose of conveying his testamentary intentions in her favour. The prosecution submits these statements were variously made in the police interview, in conversations recorded by listening device and telephone intercepts, in conversation with Harley Geissler, and in notes, letters and the artworks, which were Exhibits P30, 31, 33, 34, 35, 36 and 37, purporting to have been written by the deceased.
It is a matter for you whether you are satisfied that the accused made these statements. It is a matter for you whether, if she did, she knew them to be untrue at the time she made them.
You heard the evidence of Dr Langlois, who conducted the autopsy, that Mr Lawrence died from an overdose of morphine, codeine and tramadol; the evidence of Dr Wagner that he had not conducted any investigation into the cause of Mr Lawrence’s death and had not informed the accused that he had died of asbestosis; the evidence of Drs Osborne and Giamos about Mr Lawrence’s presentation to them in the week before his death and their diagnosis that he was suffering from mild musculoskeletal backpain only; the evidence of Tracy Lawrence, Peter Walsh, Jeffery Read, Martin Dalton and Joe Campanella of their observations of the deceased’s degree of mobility and function in the two weeks before his death; and the further evidence of Tracy Lawrence that notes and letters found at Godfrey Court purporting to be written by the deceased were not in his handwriting. It is a matter for you whether you accept all or any of this evidence.
If you find these statements were lies, it is open to you to use those lies as strands in the prosecution’s circumstantial case as evidence which implicates the accused in the alleged murder of Mr Lawrence. However, before you can use those lies as evidence implicating the accused in the death of Mr Lawrence you must first be satisfied that the accused made those statements. Second, you must be satisfied that when she made the statements she knew them to be untrue. Third, you must be satisfied that the accused told those lies to lay a false trail as to the cause of Mr Lawrence’s death, the excruciating pain associated with his death and the circumstances of his death, particularly that he felt his death was imminent and he was not for resuscitation and wanted the accused to promise him that he would die in his bed at home with only her present. In this context there is also the further category that I mentioned of inscriptions on the back of artwork, and notes and letters purporting to be written by the deceased relied on by the prosecution as evidence of the accused’s financial motive. The prosecution submits these are lies because they were written by the accused but purport to have been authored by the deceased.
That is to say the accused told these lies about the cause of Mr Lawrence’s death and that he was in excruciating pain because she knew that he had not died from any of those causes but from the ingestion of an overdose of prescription medication and she told the lies about suffering agonising pain to suggest why he might have taken the medication. The prosecution submits that the accused told the lies about the circumstances of his death to provide an explanation for why she had not sought medical attention during the period she kept him isolated from family and friends.
In this regard I direct you that people can tell lies for all sorts of reasons. They may do so out of panic or to escape an unfair accusation or because they do not really know what they are saying due to intoxication from drugs or alcohol or because they are stressed and under pressure or for the purposes of self-aggrandisement. If you are not satisfied that the reason the lies have been told is an attempt to lay a false trail as to the cause of Mr Lawrence’s death, the excruciating pain associated with his death and the circumstances of his death I have just referred to, along with the lies associated with the accused writing things purportedly as the deceased, you will disregard those lies as being relevant to anything other than her credit. It is for you to decide whether the accused has lied, and if so what the significance of those lies are in the context of the issues you have to decide in this case. If you think the lies she told are circumstantial evidence which implicates her in the charge of murder, then you must still consider all the evidence when deciding whether the prosecution has proved guilt beyond reasonable doubt. But I give you this warning again: you must not adopt the process of reasoning to the effect that just because a person is shown to have told a lie about something or lies that is evidence of guilt.
Even if you are not satisfied that the lies told by the accused are circumstantial evidence on the basis that they were told for the purpose of deflecting attention from her conduct which, if admitted, would tend to implicate her in Mr Lawrence’s death, you can use those lies when you are deciding whether the statements she made in the record of interview with Detective Tucker are credible. The deliberate telling of lies can be relevant to your assessment of the accused’s credit. Much depends on how significant the lie is and any explanation for it. Finding that the accused lied may affect your assessment of the truth of what she said then in these circumstances it does not of itself add to the prosecution’s evidence. Even if you reject all of accused’s statements, you must carefully assess whether the prosecution has proved its case beyond reasonable doubt. Having considered all of that evidence, is a verdict of guilty the only rational inference the evidence enables you to draw?
Discussion

It can be seen from the foregoing that in a very real sense, lies told by the appellant were front and centre on the prosecution case against the appellant.
The complexity and interaction of the various categories of lies required clear and careful directions. Some of the lies were proven to be so but many were statements made by the appellant which the prosecution did not set out to prove were lies and did not seek to use as evidence of consciousness of guilt. Indeed, on the prosecution case, those lies, which consisted of exaggerations and hyperbolic statements as to the appellant’s past history, were only relevant to the deceased’s state of mind and why he may have come to entertain reservations about the relationship.
The second category of lies, which I will describe broadly as forgeries, were in a special category and in my view, required particular directions. The directions about those documents needed to bring home to the jury two things. First, that the jury needed to be satisfied beyond reasonable doubt that the appellant had authored the documents before they could use them at all. Secondly, if they were satisfied that the appellant was the author of those documents, then depending on the view which they took of the evidence, it may add to the body of circumstantial evidence led by the prosecution relevant to the motive to kill. However, that same direction needed to clearly identify the purpose for which the defence wished to use those statements. On any view of the evidence, the appellant was a woman who had been proven to have made a number of exaggerated claims. She was in the habit, for whatever reason, of taking substantial amounts of opiates. There was a considerable body of witnesses who had met her in the company of the deceased who attested to the fact that she sometimes appeared to be under the influence of drugs and ‘off her face’. For instance, the observations of the appellant by Kym Lawrence, Rodney Lawrence, Blake Lawrence and Sharon Campanella were relevant to that category of lies.
Although the Judge did, in the course of the generic lies direction, identify for the jury the two different categories of lies relied on by the prosecution, he did not single out the forgeries comprising the words, letters and inscriptions on the back of artworks, which were in a somewhat different category to the other lies relied on by the prosecution, when directing on the permissible and impermissible uses of the evidence. Rather, they were included with the other lies for the purpose of the generic directions. Those lies, which included some of the documents the prosecution proved to be forgeries, were to be more aptly characterised as items of circumstantial evidence relevant to motive.
Some other lies which were led as evidence of consciousness of guilt required a direction of the kind approved by the High Court in Edwards v The Queen.[2] Others did not require such a direction.
[2] (1993) 178 CLR 193.
Even within that same category of lies told by the appellant as to the cause of death, there were sub-categories within those statements which the prosecution did not end up relying on as evidence of lies. For instance, the statements made by the appellant as to the cause of death being an aneurism may have been told in good faith by the appellant because she believed what a police officer had said to her on the morning of the deceased’s death.
As to some of the other statements made after the death of the deceased, it was important when directing the jury about those lies, to highlight the timing of them in relation to the first time she knew she was under suspicion. Once she knew she was under suspicion it is doubtful, for the reasons explained by King CJ in Harris v The Queen,[3] that any of those lies could be probative of guilt:
Lies told by an accused person either to the police or in the witness box are likely to have an adverse effect upon the credibility of the accused as a witness. But even the total discrediting of an accused as a witness is not a substitute for evidence of the commission of the crime charged. Generally speaking “a case in which an accused gives untruthful evidence is no different from one in which he gives no evidence at all”: see Broadhurst v The Queen [1964] AC 441 at 457, per Lord Devlin. In that case Lord Devlin warns against the “natural tendency for a jury to think that if an accused is lying, it must be because he is guilty”. The circumstances in which the accused’s lies will have an effect transcending mere damage to his credibility and will constitute positive evidence of the commission of the crime have been discussed in the context of corroboration in the cases of R v Lucas [1981] QB 720 and R v Evans (1985) 38 SASR 344. The probative character of some lies rises from their tendency to indicate that they proceed from a consciousness of guilt on the part of the accused. Instances of lies of that kind are false denials of having been in the company of an alleged victim at a material time or of having been at the scene of the crime at a relevant time, made at a time when the accused could not have known, unless he was the culprit, that there had been any wrongdoing in connection with the alleged victim or at the scene of the crime. Even in such cases courts must be on their guard against collateral motives for telling lies, such as the desire to conceal from a spouse that the accused was in the company of the alleged victim or was at the scene of the crime. The circumstances in which lies told after an accused becomes aware that he is or might be under suspicion in connection with the crime can amount to positive evidence of the commission of the crime must be rare. The tendency of persons under suspicion to wish to distance themselves from the persons or events connected with the alleged crimes and to endeavour to improve their position by falsehood is far too common to enable an inference to be drawn with confidence, in any but the rarest of cases, that lies proceed from a consciousness of guilt. Unjust results can easily flow from a readiness to treat lies of an accused person as positive evidence of guilt.
[3] (1990) 55 SASR 321 at 323.
The point which I am making is that here, the lies told by the appellant were so complex and relied on for such different purposes by both the prosecution and the defence that they needed to be specifically identified in the context of the warning given to the jury about the various reasons why people may tell a lie. It was not sufficient to give the generic warning about all of the hypothetical reasons why people may lie, as there had been many actual reasons proffered in the evidence at trial as to why the appellant may have told lies. The jury therefore needed very careful directions that before the post-death writings could be used as evidence of guilt, first they need to be satisfied that they were authored by the appellant and second and most importantly, that they were written out of a consciousness of guilt and not out of some misguided attempt to protect her bequest under the will. That is a particular reason why the lies said to be contained within the writings and forgeries should have been the subject of a separate direction.
In fact, on the defence case those lies may have been told due to the bitter feud which took place between the appellant and the deceased’s family over the deceased’s estate. Those lies, if proven to be lies, needed to be assessed against that background and in particular, the fact that a bitter civil dispute over the deceased’s estate ensued almost immediately after the death of the deceased. It was plain that the defence sought to use those lies as a consequence of the appellant feeling under pressure and panicking that she may miss out on her bequest under the will.
Here, because there were so many different categories of lies relied on by the parties for different reasons, it was essential that the lies direction be specific and tailored to each particular category. It is perhaps easy with the wisdom of hindsight to criticise directions given by a trial Judge. However, after reading the whole of the transcript including both counsels’ addresses at trial, I am left with a distinct sense of unease that the jury may have been overwhelmed by the number and nature of the appellant’s lies and absent specific and careful directions on each category, they may have impermissibly rolled those lies into one to conclude that the appellant must be guilty.
The authorities make it plain that in cases such as this, it is necessary for the judge to carefully identify each category of lies and to tailor specific directions in relation to each category. In R v Quist[4] a similar dilemma confronted this Court. In this case, for reasons which I have given, if it was open to the jury to find that some of the lies told by the appellant were probative of guilt, it was essential that each specific asserted lie be identified. In the absence of this identification, the jury may have considered all of the lies collectively when considering the appellant’s credit and there was a danger that a collective approach may have been adopted when considering whether and what lies were probative of guilt. I respectfully agree with the comments of Blue J (with whom Lovell J agreed):[5]
[262]It was critical for the jury to consider each asserted lie separately. First, the accounts were given in very different circumstances and the jury was required to consider those circumstances individually when considering what was said and meant. Second, the jury was required to consider individually whether each asserted lie was false and was a deliberate lie. Third, the jury was required to consider individually whether each asserted lie was told because the appellant knew that the truth would implicate her in arson. Fourth, and perhaps most importantly, the jury was required to consider these matters independently of any view or provisional view it might have of the appellant’s guilt and the risk of circular reasoning was variable depending on the identity of the asserted lie.
[4] (2017) 127 SASR 471.
[5] Ibid at [262].
It is in this context that I have reached the conclusion that the Judge’s directions as to the lies was, in all of the circumstances of this case, inadequate and may have led to a miscarriage of justice.
I note that the trial Judge, during the course of argument prior to the summing up, expressed some reservations as to whether some of the lies relied on by the prosecution should be characterised as anything other than implied admissions, in which case a full Edwards direction was required. I respectfully agree with the trial Judge’s reservations for the same reason. In the context of all of the evidence led at trial, I do not consider that there is any other way to properly characterise the post death lies relied on by the prosecution as anything other than lies capable of evidencing a consciousness of guilt and therefore requiring a full Edwards direction. Such a direction would not only have been helpful to the jury, but in my view, was essential.
As I cannot be satisfied that, in the absence of the required directions, a miscarriage of justice has not occurred, it follows that in my view, the appeal must be allowed on this ground alone.
In light of that conclusion, I will deal only briefly with grounds 2 to 5 before turning to the sixth ground of appeal, which raises the issue of whether the verdict was unsafe, unsatisfactory and unsupported by the evidence.
Ground 2 – Warnings given by others to the deceased
This ground of appeal concerns evidence led from three witnesses that they had warned the deceased about his general approach to discussing and spending money. The prosecution sought to rely on that evidence as relevant to the deceased’s state of mind at the time he was freely spending large amounts of money on the appellant. Although some warnings were given to the deceased well before he met the appellant, the warnings given by Mr Dalton and Susan Lawrence were given after the deceased told them that he had paid the appellant’s legal fees.
The reference to ‘gold diggers’ was made in the context of a general warning given to the deceased by a long-time friend well before the appellant had met the deceased. In my view, there was no particular direction required in respect of that evidence as it did not involve any imputation on the character of the appellant. I would dismiss this ground of appeal.
Ground 3 – Imbalance in the summing up
The third ground of appeal is a complaint that the summing up as a whole was unfairly imbalanced in favour of the prosecution. This complaint may be dealt with briefly.
It is trite to observe that this was a prosecution case which was complex and multi-stranded. The prosecution relied on 15 principle topics of circumstantial evidence to invite the jury to be satisfied beyond reasonable doubt. The appellant did not give evidence. The summing up was lengthy and detailed and it came at the conclusion of a trial which had occupied approximately 25 sitting days over six weeks. In assisting the jury to understand and apply the burden of proof in relation to the whole of the circumstantial case, it was necessary to review each category of circumstantial evidence which was relied on by the prosecution. The trial Judge made it clear that each of the circumstances summarised were to be assessed in light of the competing arguments between the prosecution and the defence as to the inferences to be drawn. The cumulative effect of the circumstantial case against the appellant pointed strongly to the guilt of the appellant. Therefore, the Judge’s treatment of that case would have inevitably reflected that. I would dismiss this ground of appeal.
Ground 4 – Exculpatory statements to police
This is a complaint that the trial miscarried because the Judge failed to adequately direct the jury in relation to the application of the burden and standard of proof to the exculpatory statements made by the appellant to the police. The trial Judge’s directions were as follows:
The prosecution relies on some parts of the interview. You should regard not only those parts of the out-of-court statement that incriminate the accused, but also any part of the statement that exculpates the accused. That is to say, you should have regard to those parts of the statement that cast doubt on her guilt as much as those that might evidence her guilt. Both the parts that help the prosecution and the parts that help the defence are evidence in this case. As with all witnesses, you may accept some parts of what the accused said and reject other parts, or you may accept all the accused said or reject all that the accused said.
It is for you to decide what parts of any of the statement you are prepared to rely upon. You must decide what weight you give the accused’s statements and you are entitled to give different weight to what the accused said at different times in the course of the interview. I also direct you that unlike evidence from other witnesses, the police interview is not sworn evidence that has been tested by cross-examination. You may think that some parts of the accused’s statements are self-serving. You may think that when she was being interviewed the accused was affected by drugs. That is a matter for you. If you consider that she was, then you must decide how it affects your assessment of what she said in the interview. If she was affected by drugs, can you rely upon the statements she made in the course of the interview? You are entitled to consider these matters when deciding what weight you give the accused’s statements.
You also heard evidence obtained from telephone intercepts and listening devices. In particular, you heard evidence of a telephone call she made, which is call 9, where she said Dr Wagner sent her a letter advising of the cause of David’s death and that he located David’s name on an asbestos register. He said that David must have been in really tragic pain because of the damage to his bowel and spleen. She further said he had never taken anything except a nurofen in all the time she had known him. There is a further call (call 23) where she said that David told her that he was dying but had about 15 years left. He made her promise that she would allow him to die in his own bed, never to be put on life support and he wanted only her to be with him when he died. She said David’s bowel was almost eaten away and he must have been in agony when he died. On that same call she said that the Coroner was at the house on the morning of 3 December 2015. He took her aside and told her he had checked into everything and was aware the deceased had five siblings. The Coroner advised her that even if they wished to attend at the house to offer their condolences, they were not to be permitted to take anything from the house. She said the Coroner thought it was an aneurism. There was a further call (call 55) where she said that David died of asbestos poisoning. David’s bowel and spleen were shredded and he must have been in “bloody agony” which explained why some of her morphine was missing. There is a further call (call 89) where she said David died of asbestosis. She said he was at the top of the asbestos register and had the highest risk of dying. There is a further call (call 122) where she said that David’s bowel, spleen and pancreas were shredded and he was full of septicaemia. She knew this from reading the notes from the medical examiner. There was a further call (call 145) where she said that eating bananas was one of the worst things David could have been eating, knowing he had asbestosis.
You also heard evidence from listening devices. That evidence included a conversation on 17 February 2017, after the police interview with the accused, where she was told the cause of death was an overdose of her prescription medication, where she said that she couldn’t see David doing that. She went on to say that if he was going to do anything like that he might take one of something but not everything, and that he wouldn’t have touched her morphine because he knew it was dosed to her for a week so she only had enough for night and morning. She further said that David knew aladorm was a sleeper and he wouldn’t have touched them. He knew what valium was and knew it was dangerous.
In relation to the evidence obtained from the telephone intercepts and listening device, I also give the same direction as I gave in relation to the record of interview. You may accept all or some or none of what the accused said as recorded on those intercepts and that device. You must decide what weight you give the accused’s statements and you are entitled to give different weight to what she said at different times. Again, the evidence obtained from the intercepts and the listening device is not sworn evidence that has been tested by cross-examination. Again, you may think that some parts of the accused’s statements are self-serving. I give you the same direction in relation to whether you think the accused was affected by drugs during these conversations and what effect, if any, if you consider she was, that has on your assessment of what she said. You are entitled to consider those matters when deciding what weight you give the accused’s statements.
Early on in the summing up, the Judge gave directions about the burden and standard of proof which applied to the evidence overall.
The Judge was entitled to point out to the jury that they are entitled to ascribe different weights to inculpatory and exculpatory statements. It was also quite proper to point out that statements made to the police are not on oath and have not been tested by cross-examination. In my view, this complaint is without substance.
Ground 5 – Use or supply of Valium
This ground is a complaint about the adequacy of the trial Judge’s directions as to the permissible and impermissible uses of evidence concerning admissions made by the appellant that she had given the deceased Valium. The respondent acknowledged in submissions on the appeal that a specific direction pursuant to s 34R of the Evidence Act 1929 (SA) should have been given to the jury identifying the proper use of the evidence. Nevertheless, the respondent argued that the proviso in s 158(2) of the Criminal Procedure Act 1921 (SA) could be applied. In light of the conclusion that I have reached in relation to the first ground of appeal, I do not consider it necessary to determine whether the proviso should be applied in relation to this ground.

I turn now to ground 6.
Ground 6 – The verdict is unsafe and unsatisfactory
The appellant complains that the verdict is unsafe because the evidence, as a whole, was not capable of excluding a rational hypothesis consistent with innocence. In particular, the evidence could not exclude that:
1.The deceased administered all the medications which proved lethal to himself
2.The appellant administered some medication, but not in a dose sufficient to cause death; and
3.The appellant administered all the medications, either by accident or miscalculation, without any intention of causing death or grievous bodily harm.
In making this submission, the appellant argued that each of the 15 items of circumstantial evidence relied on by the prosecution, either alone or in combination, were not capable of proving beyond reasonable doubt that the appellant had murdered the deceased.
The appellant’s submission relies on the fact that, taken in isolation, there may have been an innocent explanation for each of those 15 items of circumstantial evidence and in relation to some of them, when properly analysed, they were said to be ‘intractably neutral’.
The appellant submitted that when viewed in the context of the whole of the evidence, it was not open to the jury to exclude various innocent explanations.
The prosecution theory about the deceased’s state of mind in the weeks leading up to his death involved rank speculation. For instance, one theory was that by reason of the appellant’s accumulated lies or by reason of past warnings about ‘gold diggers’, the deceased must have acted in a way that caused the appellant to quickly kill him.
In relation to the post-death statements, the appellant submitted that none of them precluded an explanation that the appellant lied for reasons consistent with innocence. It was submitted that she may have lied because she was filled with animosity towards the deceased’s family over estate matters about which they were litigating, or because she felt responsible for the fact that it was her medication that the deceased used. The appellant submitted that, in any event, her lies could not really be separated from her drug-addled state given her then addiction to opioid drugs.
In my view, there is a fundamental flaw in the appellant’s argument in respect of this ground of appeal. The appellant has identified a number of items of circumstantial evidence, some of which, standing alone, might not exclude an innocent explanation. However, that argument relies on a piecemeal explanation of the evidence to support the conclusion that the prosecution was unable to prove the case beyond reasonable doubt. It has been emphasised often enough that this is an inappropriate way to evaluate the strength of a prosecution case based on circumstantial evidence. In a well-known passage, the High Court in TheQueen v Hillier stated:[6]
[48]Often enough, in a circumstantial case, there will be evidence of matters which, looked at in isolation from other evidence, would yield an inference compatible with the innocence of the accused. But neither at trial, nor on appeal, is a circumstantial case to be considered piecemeal. As Gibbs CJ and Mason J said in Chamberlain [No 2]:
At the end of the trial the jury must consider all the evidence, and in doing so they may find that one piece of evidence resolves their doubts as to another. For example, the jury, considering the evidence of one witness by itself, may doubt whether it is truthful, but other evidence may provide corroboration, and when the jury considers the evidence as a whole they may decide that the witness should be believed. Again, the quality of evidence of identification may be poor, but other evidence may support its correctness; in such a case the jury should not be told to look at the evidence of each witness ‘separately in, so to speak, a hermetically sealed compartment’; they should consider the accumulation of the evidence: cf Weeder v The Queen.
Similarly, in a case depending on circumstantial evidence, the jury should not reject one circumstance because, considered alone, no inference of guilt can be drawn from it. It is well established that the jury must consider ‘the weight which is to be given to the united force of all the circumstances put together’: per Lord Cairns, in Belhaven and Stenton Peerage, cited in R v Van Beelen; and see Thomas v The Queen and cases there cited.
And as Dixon CJ said in Plomp:
All the circumstances of the case must be weighed in judging whether there is evidence upon which a jury may reasonably be satisfied beyond reasonable doubt of the commission of the crime charged. There may be many cases where it is extremely dangerous to rely heavily on the existence of a motive, where an unexplained death or disappearance of a person is not otherwise proved to be attributable to the accused; but all such considerations must be dealt with on the facts of the particular case. I cannot think, however, that in a case where the prosecution is based on circumstantial evidence any part of the circumstances can be put on one side as relating to motive only and therefore not to be weighed as part of the proofs of what was done.
(Emphasis added.)
(Citations omitted)
[6] The Queen v Hillier (2007) 228 CLR 618 at [48].
More recently, that principle was reaffirmed in The Queen v Baden-Clay:[7]
[47]For an inference to be reasonable, it “must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence” (emphasis added). Further, “in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence” (emphasis added). The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal.
[48]Further, a criminal trial is accusatorial but also adversarial. Subject to well-defined exceptions, “parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue”.
(Citations omitted)
[7] (2016) 258 CLR 308 at [47]-[48].
As I remarked earlier in the context of discussing the first and third grounds of appeal, this was quite a complex circumstantial prosecution case, which did not rest on the honesty or credibility of a single witness or group of witnesses only.
It was essential when evaluating the strength of the prosecution case to consider the cumulative effect of a number of very different strands of items of circumstantial evidence, including, but not necessarily limited to, the matters previously discussed in paragraphs [6]-[54] of this judgment. To briefly summarise, this includes evidence of:
1.A motive to kill. At the very least, the appellant’s conduct both pre and post the deceased’s death revealed a preoccupation with financial matters and a desire to benefit from his will;
2.The deceased’s cause of death;
3.DNA evidence, which undermined the defence hypothesis that the deceased may have removed the drugs from the packaging and administered them to himself;
4.Statements or lies told by the appellant. I will not repeat what I have already discussed in respect of ground 1, except to say that it was open to a jury properly instructed to conclude that at least some of the lies told were spoken out of a consciousness of guilt;
5.Telephone intercepted conversations about the cause and circumstances of the deceased’s death;
6.The relationship between the appellant and the deceased and the circumstances surrounding the deceased’s death;
7.The conduct of the appellant on 3 December 2015; and
8.The appellant’s interview with police in Dapto, New South Wales, where she made various statements including that the Lawrence family knew all about the engagement, that the deceased suffered from asbestosis and was terminally ill and that she was a nurse.
When the cumulative effect of this substantial body of circumstantial evidence is considered, I consider that this was a very strong prosecution case.
After conducting my own independent review of the evidence, I consider that it was well open for a jury, properly instructed, to conclude beyond reasonable doubt that the deceased did not knowingly consume the fatal drugs, that the appellant was the only person during the relevant period who had access to the deceased and that she was the only person who had a motive to kill him. Therefore, in all of the circumstances, it was open to the jury to conclude that the appellant had administered the drugs with the necessary intent of killing the deceased.
Conclusion
Given my conclusion in relation to ground 1, I would quash the conviction and order that the matter be remitted for a retrial.
PEEK J: I would allow the appeal. I agree with the reasons of Kelly J.
PARKER J: I agree with Kelly J that the appeal should be allowed. I would dismiss grounds 2, 3, 4 and 6 for the reasons stated by her Honour. I also agree with her Honour that it is unnecessary to consider ground 5 because the appeal should be allowed on ground 1 for the reasons stated by her Honour.
I agree with the observation made by Kelly J that this was a very strong prosecution case due to the cumulative effect of the circumstantial evidence, when considered as a whole. However, Kelly J has identified shortcomings in the directions given to the jury concerning the use that they may make of the alleged lies told by the appellant and her conduct that allegedly amounted to lies. I agree with her Honour’s conclusion on that issue.
For that reason, despite the strength of the prosecution case, I am satisfied that the proviso in s 158(2) of the Criminal Procedure Act 1921 (SA) should not be applied. The shortcomings in the directions given in relation to the issue of lies may have affected the assessment by the jury of the defence case. Accordingly, I cannot be satisfied that a substantial miscarriage of justice has not occurred.[8]
[8] Weiss v The Queen (2005) 224 CLR 300 at [45].