Ellis v The Queen [2011] HCATrans 64

[2011] HCATrans 64

[2011] HCATrans 064

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne       No M160 of 2010

B e t w e e n -

DARREN JOHN ELLIS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

HEYDON J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 11 MARCH 2011, AT 10.50 AM

Copyright in the High Court of Australia

MR P.G. PRIEST, QC:   If the Court pleases, I appear with my learned friend, MR T. KASSIMATIS, for the appellant.  (instructed by Mike Wardell)

MR T. GYORFFY:   If it please the Court, I appear with my learned friend, MR B.L. SONNET, for the respondent.  (instructed by Solicitor for Public Prosecutions)

HEYDON J:   Yes, Mr Priest.

MR PRIEST:   If the Court pleases.  Ordinarily, the character of an utterance as a consciousness of guilt lie, the fact that it is untrue will be shown by independent evidence.  An obstacle standing in the way of that bald submission is Woon’s Case, which I will come to a little later, but, ordinarily, to show that a lie, a consciousness of guilt lie, is untrue, independent evidence is required.  So let us take an example.  Were a body to be found in premises and the accused was asked, “Have you ever been to those premises?” and the accused said, “Never”, yet fingerprints or DNA belonging to the person were found in the premises, that would be, on one view, cogent evidence that his denial of being at the premises was untrue and, subject to a proper Edwards direction being given to a jury, one would say in a case like that a jury would be entitled to use his utterance as a consciousness of guilt lie. 

Let us take the situation where there was no fingerprint, no DNA in the premises and in the course of a police interview or in the course of giving evidence in a courtroom the assertion was put, “You have been at those premises, have you not?”, and the accused said, “No, I have never been to those premises”, the denial and its character as a lie, in those circumstances, could not be used, in our submission, as to consciousness of guilt, merely as to credit.  The distinction is very important for this reason, that a consciousness of guilt lie can actually be used in support of the prosecution case and in proof of the prosecution case.  It adds to the evidentiary pool.  It is an implied admission of guilt.  On the other hand, a denial which is disbelieved does not add to the evidentiary pool at all.  All it is, in that circumstance, on one view, is neutral.  So the distinction, in our submission, of course, is a very important one. 

The vice of the way the trial judge left lies in this case and, indeed, it was not just lies, it was other conduct, but the vice of the way in which the judge left it in this case was twofold.  First of all, leading an overall lie really cloaked the various component parts which went to make up the overall lie so-called and meant that the jury were deprived of the sort of analysis that they ought to have carried out when looking at each of the component parts of the overall lie.  That is the first aspect of it.

BELL J:   Can I just take this up with you.  As I understand it, this approach was the subject of discussion before the judge charged the jury and defence counsel agreed with it as a means of avoiding what was thought to be the forensic disadvantage of having repeated emphasis on the Edwards tests in a way that might be thought be unhelpful from ‑ ‑ ‑

MR PRIEST:   We accept the first part, we do not accept the second part.  The Court of Appeal said that that was so, but, with respect, defence counsel certainly did not disagree with the approach that was suggested by the trial judge, but whether it was because he thought that there was going to be disadvantage in having the Edwards type approach repeated with respect to each lie is a different question altogether.

BELL J:   Presumably, for whatever reason, defence counsel saw forensic advantage to the course that was proposed?

MR PRIEST:   Your Honour, with respect, we would say that one cannot draw that conclusion from the bare facts and we would submit that when one looks at the factual matrix here and the various lies, had counsel properly analysed the situation and not adopted the trial judge’s approach to it, trial counsel would have seen it was not at all in his client’s interest to have done or approached the matter in the way that the trial judge really invited of both sides. 

BELL J:   That really raises very different considerations if you were to make that good.

MR PRIEST:   It goes to this, your Honour.  One of the questions in determining whether or not there was a substantial miscarriage of justice is looking at the conduct of defence counsel.  The fact that defence counsel adopted a particular approach does not necessarily mean there has been anything other than a substantial miscarriage of justice.  It is a factor, but not a determinative factor, in our submission.  If one looks at the way in which defence counsel did approach the defence case, he placed reliance on the record of interview.  He did not at all resile from the fact that what was said in the record of interview was the truth.  So he relied on the very utterances the prosecution relied upon as being lies. 

How the trial judge approached the matter and directed the jury was this.  The trial judge said, well, you can look at what he said in the course of the record of interview and, more to the point, the way in which he said it determined whether or not he has told a lie, which evidence is consciousness of guilt.  Now, that in our submission, must be fundamentally wrong.  The thing that stands in the way of making that submission immediately good is Woon’s Case.  Woon, your Honours, was decided by this Court at a time before guidance had been given in Edwards and, over and above that, if one analyses Woon’s Case, the real point of it was that there were two interviews in Woon, one in Sydney, one in Melbourne.  The answers given by Woon were selective and evasive and when this Court spoke about demeanour, they were talking about the evasiveness or the selectiveness of the bare answers, something very different to what the Court in this case invited. 

The Court here invited the jury to look at his appearance on the video tape and reach a conclusion based on his demeanour about whether or not he was telling consciousness of guilt lies.  The circumstance where video taped interviews are becoming more and more common, indeed, I cannot think an occasion in Victoria where they are not used on a charge of murder, it is a very important matter of principle as to whether or not it is a legitimate exercise to look at somebody’s behaviour, how they demean themselves on a ‑ ‑ ‑

HEYDON J:   Does that apply to submissions by counsel for the accused, inviting the jury to look at how convincing the answers given to the detectives were?

MR PRIEST:   Well, your Honour, there is a fundamental difference, of course, between the two, because on the one hand ‑ ‑ ‑

HEYDON J:   Not rationally speaking.

MR PRIEST:   We would say yes for this reason, that all the – and may I digress to say, it was put by defence counsel, yes, have a look at his demeanour.  But fundamentally, there is a difference, in our submission, because on the one hand, in the hands of the prosecution, if this case is correctly decided, the demeanour of the accused can be used as independent evidence to prove his guilt, that is, to establish consciousness of guilt rather than being simply a matter for credit and for disbelieving what he says about things.  In the hands of the defence, of course, given the burden of proof and the standard of proof, it is conceptually very different, in our submission. 

BELL J:   Is not your case that the ground that – your third ground, I think, in the Court of Appeal – that the evidence did not support the verdict in that your case is where the only evidence is in the nature of a circumstantial case is evidence that the accused was in a relationship with the deceased, was the last person known to have seen the deceased alive, there is otherwise no tangible physical connection with the killing.  The telling of a series of accounts explaining her absence from his life, even if implausible, is insufficient to discharge the onus.  That is really what it is about, is it not?  It is not an issue that one cannot draw inferences from the appearance of a person in the course of a video recorded interview so much as a contention one cannot conclude the issue beyond reasonable doubt by reasoning that he is lying.

MR PRIEST:   I would like to, with respect, embrace what your Honour said, but it is not completely what we put.

BELL J:   It is not, all right.

MR PRIEST:   Because the way in which the supposed lies were left were to add admissions or an admission to the other evidence in the case and to give a character to the case that it did not deserve.  Because if you look at the other circumstances, in our submission, they did little more than raise suspicion, but when you add the lies, it may be the telling point.  That is why the jury, with respect, ought to have been required to look at each piece of evidence to determine whether or not it did have the character that it demonstrated a consciousness of guilt.

Now, your Honours, could I take your Honours briefly to the application book at page 87 and following.  This is in the reasons of the Court of Appeal.  You will see set out from paragraphs 12 and following the various pieces of evidence that were relied upon by the prosecutor as showing a consciousness of guilt.  The first is the assertion that the deceased had left the applicant.  The second, paragraph 14, is the question of the text message.  This is a very important piece of evidence, in our submission, because what the prosecutor put was not only was his assertion that he had received a text message from the deceased after she had left him false, but you will see in the last line of paragraph 14 at page 87, it was positively put by the prosecutor that he was the one who had sent a text message deliberately to the Seagers. 

Now that was a piece of conduct, not necessarily a lie, but it was bound up in the overall lie that his Honour left to the jury for their consideration.  Had they been invited to approach that piece of conduct by way of example in the way in which Edwards would suggest it should be approached, carrying out a proper analysis, the jury might have failed of satisfaction beyond reasonable doubt that he was the architect of those text messages by way of example.  I will not read, of course, the rest of them because they occupy another couple of pages, but if you go to the ninth proposition put by the prosecutor at page 89, you will see this:

There he is, close [to] the end [of the police interview], and he volunteers this.  He says ‘you know, I’m not – I can’t stand, you know, violence against women –

Then the prosecutor reminded the jury of the relationship evidence, which was pretty dubious at best but was admitted, and the prosecutor went on to say –

don’t trust this accused man with the truth.  He’ll tell you anything.  He’ll tell you lie upon lie upon lie to cover his guilt of the murder –

So that, on one view, which could never have been a consciousness of guilt lie, in our submission, may well have been bound up in this overall lie that was left to the jury for their consideration.  So, in our submission, had the jury been invited to approach the matter properly in the way in which Edwards dictates, it could hardly have been said that there was a substantial miscarriage of justice in this case, but their proper consideration of the individual lies was cloaked, was obscured, by leaving it as an overall lie in the way in which the judge did.

Turning to the question then of demeanour and whether or not that can be independent evidence of guilt, we submit, as we have submitted a few moments ago, that Woon has got to be looked at according to the time at which it was decided.

BELL J:   But is it suggested that a jury would be instructed when viewing a video recorded interview that they were to entirely disregard the impression created by the way in which the accused answered questions?

MR PRIEST:   No.  It would go to credit only, in our submission.  There is a fundamental difference, as ‑ ‑ ‑

BELL J:   Is your point then that an assessment of demeanour cannot go to proof of deliberateness of a lie?

MR PRIEST:   Yes, your Honour.  In the sense that it demonstrates that the lie is deliberately untrue, which is what a lie obviously is.  You cannot, in our submission, except in the most unusual case, draw a conclusion that something is a lie simply based on demeanour.

BELL J:   Simply because someone looked shifty?

MR PRIEST:   Yes.

BELL J:   That is a proposition that would apply equally to evidence if the accused gave evidence, would it not?

MR PRIEST:   Yes, but, your Honour, again, the fundamental difference between the two is that his shifty, evasive look was left to the jury here – or suggested shifty and evasive look was left to the jury here, in effect, as independent evidence establishing a lie going to consciousness of guilt.  There is a conceptual difference and one in principle, with respect, between the two, as has been recognised by this Court in Zoneff, Dhanhoa and other cases.

Can I take the Court, finally, to what was said by the Court of Appeal in Barrett’s Case, and this will be found behind tab 6 of the authorities.  Barrett was a decision of the Court of Appeal constituted by President Maxwell, Judge of Appeal Eames and Acting Judge of Appeal Habersberger.  Justice Eames gave the leading judgment.  It was a case of murder.  There was a videotaped interview and the trial judge invited the jury to look at the way in which the accused answered as to the prosecutor in judging whether or not he had told lies that evidenced consciousness of guilt.  I take the Court to page 248 of the Victorian Reports, paragraphs 34 through 36 are important.  If I can take the Court to paragraph 36 of what his Honour said in a judgment that was agreed in by the other members of the Court:

Even if the videotape was capable of bearing that inference, as I shall presume to be the case, this was a case, like Favata, in which the jury ought to have received a very clear warning about the dangers of drawing such an inference from demeanour.  No warning, at all, was sought or given as to this danger.

That was a case where counsel had not sought a warning and yet there was held to be a substantial miscarriage of justice such that that conviction was quashed.  That is this case.

HEYDON J:   So, is this a compulsory warning?

MR PRIEST:   We would say, yes, your Honour.

HEYDON J:   This will be about the 24th compulsory warning the judges have to give?

MR PRIEST:   Your Honour, that is as may be, but it is all about preventing miscarriages of justice, in our submission.  The red light has come on, but if I might just continue?

HEYDON J:   By all means, yes.

MR PRIEST:   Here the reasons for the Court of Appeal distinguishing the requirement of the warning mandated by Barrett, with respect, are less than convincing and certainly virtually unsatisfying.  They are to be found, your Honours, in the application book in the reasons of the Court of Appeal

at page 97 and following.  The first point at paragraph 41, halfway through the paragraph, is that the Court said:

Whatever the utility of such a warning, it was not given in Woon or in Edwards and the High Court did not say in either case that it was mandatory.

The simple answer to that is that this Court was not asked to decide it in either of those cases in the way that it is asked to decide it in this case.  Secondly, and I will jump down to the second sentence:

Ordinarily, it is unnecessary, even if sometimes desirable, to give directions to a jury on dangers that should be obvious to jurors as the result of their common sense and ordinary human experience.

How would the jury be alive to the dangers in this case?  It is akin to a juror saying, “I could tell he was guilty just by looking at him.”  The jury unassisted by a proper warning would not have realised the dangers in acting upon demeanour in determining whether or not there is a consciousness of guilt lie.  Indeed, they were positively invited to look at it to determine whether or not there were consciousness of guilt lies.

Thirdly, and the Court in that paragraph talks about the fact that in Barrett’s Case he may have been drug affected or tired, but if you read Barrett, no complaint was made by the accused in that case as to those matters.  Fourthly, it said, over the page at 98 paragraph 44:

the judge gave the jury a conventional Edwards direction –

Well, with respect, the overall lie really obscured the correct analysis that is required by Edwards.  Fifthly, it said at paragraph 46, and this is your Honour Justice Bell’s point:

experienced defence counsel did not seek a specific warning –

but he relied upon the record of interview and, more to the point, counsel in Barrett did not ask for a warning and yet there was held to be a substantial miscarriage of justice.  So when one subjects the reasons of the Court of Appeal for refusing the necessity of a warning in this case to scrutiny, with respect, they just do not stand up.  We would submit there is a very important point of principle here and that is whether or not, first of all, consciousness of guilt lies can be shown by demeanour and, secondly, whether or not a warning is not required in every such case.  If the Court pleases.

HEYDON J:   Thank you, Mr Priest.  We need not trouble you, Mr Gyorffy.

Notwithstanding the forceful and capable submissions of Mr Priest, we do not think there is a sufficient prospect of success on either of the principal points he urged to justify the grant of special leave.  Therefore, the application for special leave is refused.

MR PRIEST:   If the Court pleases.

MR GYORFFY:   On another point, could I indicate your Honours - your Honours might remember doing the case of Nguyen in September.  You will be pleased to know Mr Nguyen pleaded guilty to manslaughter and was sentenced to the same sentence he received on Wednesday.

HEYDON J:   Thank you.  The Court will now adjourn in order to reconstitute.

AT 11.15 AM THE MATTER WAS CONCLUDED