Gojanovic v The Queen [2011] HCATrans 66

[2011] HCATrans 66

[2011] HCATrans 066

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne       No M84 of 2010

B e t w e e n -

DENIS PAUL GOJANOVIC

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

CRENNAN J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 11 MARCH 2011, AT 12.11 PM

Copyright in the High Court of Australia

MR K.T. ARMSTRONG:   If the Court pleases, I appear for the applicant.  (instructed by Robert Stary Lawyers)

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)

CRENNAN J:   Yes, thank you.

MR ARMSTRONG:   If the Court pleases, might I first address, unfortunately, a question of whether the Court has some additional materials which were not in the application book originally.  I speak in particular of some additional pages of transcript, they being from the trial transcript, pages 2561 to 2593.

CRENNAN J:   Where are they to be found?  Additional materials tab 2, is that it?

MR ARMSTRONG:   Yes, that would be it.

CRENNAN J:   Yes, I see.

MR ARMSTRONG:   To explain that, and I apologise for the late delivery of it, that was additional transcript not originally included in the charge transcript but contained a significant question which the jury asked about.

BELL J:   This is the question?

MR ARMSTRONG:   Yes, about the post‑offence conduct.

CRENNAN J:   Yes.

MR ARMSTRONG:   The other matter of less significance was the ‑ ‑ ‑

CRENNAN J:   Do you want to direct us to a particular page?

MR ARMSTRONG:   Yes, your Honour, but might I come to that ‑ ‑ ‑

CRENNAN J:   In your own time, yes, certainly.

MR ARMSTRONG:   Yes, if I may, thank you.  If the Court pleases, it is submitted that in terms of general matters of principle, firstly, going to the grant of special leave, that there are continuing complexities and difficulties in this area of the proper directions to be given to juries in consciousness of guilt cases.  You will see in the applicant’s summary that there is reference to two Law Reform Commission reports of recent times that deal with jury directions, but in particular with post-offence conduct complexities, as the authors describe it in each case.  By way of further example, the summary records that the Victorian criminal charge book, even just on the so-called straightforward or simple Edwards direction, extends to some six pages of closely typed direction to juries.  So there is, it is submitted, a general prevailing concern and complexity about the matter. 

The specific application or concern to it submitted in this case is that it is submitted that there is a conflict between intermediate appellate courts, in particular, in that insofar as the issue of whether evidence said to be of consciousness of guilt can be affected in its probative value by regard to the rest of the circumstantial evidence that might be relied upon in any particular case, and by that I refer in particular to the issue as described in the Western Australian case of Martinez.  If your Honours would permit me to take you very briefly to that decision.  I believe it is behind tab 6 of the additional materials and, in particular, at pages 399 to 400 of the decision of the Court.  It is there that the Court, without reading it all, refers to the Court of Appeal decision here in Victoria of Ciantar and at the end of the paragraph which commences at the bottom of page 399 from Ciantar and concludes over the page, the Martinez court cites the Ciantar judgment where it reads:

Similarly, where evidence of consciousness of guilt, which although by itself equally consistent with consciousness of guilt of an included offence or another count on the presentment or another offence disclosed by the evidence, is capable in conjunction with other evidence of sustaining an inference of consciousness of guilt of the charged offence, it must be left to the jury to determine whether it demonstrates consciousness of guilt of the charged offence.

Then the Martinez court goes on to say –

It is, with great respect, not entirely clear what is intended to be conveyed by this last sentence.  If the conduct said to demonstrate a consciousness of guilt is capable of relating, equally, to either of two offences, then it is, to use the language of some of the cases (including Ciantar), “intractably neutral” in its effect and it should not be left with the jury as being capable of supporting an inference of guilt of the offence charged.  That must be so regardless of whether or not there is other evidence that tends to establish that the accused is guilty of the offence charged.  If the other evidence establishes guilt beyond reasonable doubt, there is no need for the jury to rely upon the lie.  If it does not, it cannot give to the lie a character which it is not capable of bearing.  If, on the other hand, the other evidence tends to show that the consciousness of guilt reflected by the lie is more probably related to the offence charged than to the other offence, then the lie would not be capable of equal application to either offence.  It is presumably only this last proposition that the court was intending to convey.

But, in my submission, it remains an apparent conflict because the two courts differ as to the probative effect, if any, which other circumstantial evidence might be able to give to evidence that is said to be probative of a consciousness of guilt.

BELL J:   That would only be if Ciantar is not to be understood in the way that the Court of Appeal of Western Australia saw it.

MR ARMSTRONG:   To take it to the facts of this case, your Honour, it is my submission that this was a case where the Ciantar description of principle results in error, if I can put it that way, and that is why it is submitted that this case is a suitable vehicle to deal with not only general matters of complexity continuing in this area, but that specific issue, it is submitted, conflict between those intermediate appellate courts.  It might also be said too, if the Court pleases, that the Martinez analysis is supported by the cases prior to Ciantar in the Victorian Court of Appeal, which are Heyes and TY, which are included in the additional materials at tabs 8 and 9 particularly.  I do not seek to take the Court to those, but they were briefly cases where those courts in each case held, prior to Ciantar, that where there was a situation of alternative offences being equally explicable by the evidence of what was said to be post-offence conduct, then the matter should be not left to the jury at all.

So it has turned to the circumstances of the case before you, it is submitted that this trial was one where the prosecution sought to rely on the circumstantial case.  It was said that the post-offence conduct which consisted of both conduct in the strict sense of disposing of the weapon and washing your clothes and the like and also at lies which were said to have been made to the investigating police.  It was said to be evidence which could allow the jury to draw an inference of a consciousness of guilt of murder as opposed to manslaughter.  So the first point or submission that is sought to be raised in this application is that, with the greatest of respect, it was not a case where there was that inference available.  This was a case of, to use the Ciantar terminology, intractable neutrality between those two alternate inferences.

BELL J:   I wondered about that, having regard to the facts of this case.  The issues that were presented included whether the killing was a voluntary act, having regard to the applicant’s diabetic condition.  That, as I understand it, was quite a live and significant issue at the trial.

MR ARMSTRONG:   Certainly, your Honour.

BELL J:   Perhaps rather more prominent than provocation which was the second way in which the case was presented from the applicant’s point of view, that depending on the account that the applicant gave of some things that had been said by the deceased when he entered the house.

MR ARMSTRONG:   Yes.  If I can interrupt your Honour.  There was another issue.  It was the diabetic condition, in particular, the possible hypoglycaemic attack, was also relevant to the question of murderous intent and that was specifically what the jury asked a question about.  I am sorry.

BELL J:   No, not at all.  In this case, when one looked at the circumstantial evidence from which it may have been open to the jury to infer that the applicant had followed the deceased back to her home in the early hours of the morning, the deliberateness of parking the car at a distance from the home, entering the home, within a short period of time the death taking place and thereafter a course of conduct showing considerable deliberateness, including the feigning of surprise and distress at learning of what had happened, why is that not taken together capable of supporting an inference that the killing was accompanied by the requisite intent and not that it was done in a state of hypoglycaemia, absent intent in a state of confusion associated with that medical condition or even in a temporary fit of rage occasioned by provocation?

MR ARMSTRONG:   Your Honour, with respect, that would be the best way in which it could have been explained to the jury as the necessary line of reasoning to allow a differentiation between the two alternative inferences of murder and manslaughter, but it was never put in that way.  All that the jury were told as to the way in which they should decide between these competing inferences of murder and manslaughter was that they should have regard to the whole of the evidence.  At its highest, there was an occasion when the trial judge – and this, I believe, at application book 50 to 51 – this was a part of the charge where his Honour was dealing specifically with the issue of the element of conscious, voluntary and deliberate act, and at this point his Honour, at the bottom of application book 50 and over to the top of page 51, did in fact set out the entire sequence of what was said to be purposeful acts by the accused – by the Crown, that is – including the post-offence conduct. 

However, your Honour, it was not further elaborated upon and further, it was confined only to this consideration, this issue of the element of conscious, voluntary and deliberate act.  It was not an account or even a description of the evidence, certainly not, in my submission, an exposition of a line of reasoning, that the judge gave to the jury in either the element of murderous intent or on the occasion when he first gave instructions to the jury about the way they could use post-offence conduct.

BELL J:   I think the latter is at application book 35, where one gets his Honour’s detailed direction on the fourth of the Edwards propositions.  It seemed to me, I must say, that his Honour was making it very clear that if the evidence was to be viewed by the jury as consciousness of guilt, it had to be of murder.

MR ARMSTRONG:   Yes, your Honour, there is no complaint about his Honour identifying alternative explanations, but it is submitted that when one goes back to Edwards and the like, it is not enough, with respect, to simply identify the post-offence conduct or the issues to which it goes to, but it is incumbent on the trial judge, particularly in circumstances such as this case where prima facie, there was an intractable neutrality between the competing inferences, it was incumbent on the trial judge to require the prosecution, firstly, to give an explanation of how it was that a jury could distinguish between the two.  That was not done and, as I say, at its highest, not that it was, in my respectful submission, characterised as such by the trial judge. 

It is only at pages 50 to 51 of the application book that it could be said that anything approaching that occurred.  Rather, in terms of the specific aspects of the element of murderous intent and in the discrete directions that the trial judge gave about post-offence conduct, the jury were only left with the instruction that they were to make the assessment of the merits of the competing inferences on the whole of the evidence, which of course raises the Martinez point which, in my submission, is apparent that if it is not something that is apparent on an analysis of the post-offence conduct itself, it is not going to be improved by or in any way altered by other circumstantial evidence which does not go to a post-offence conduct consideration at all.

Further, it was the third element, as his Honour approached it in terms of his process through the elements, of murderous intent, which was the one that the jury asked the question about.  They specifically came back and said effectively, “We want further direction as to how we are to use the post-offence conduct on element 3”, as they termed it, which was that of murderous intent, to which his Honour then, with the greatest of respect, as he indicated he was going to do, simply rehearsed his original charge on that point and again told them, consistent with what he had said originally, that it was a matter of them having regard to the whole of the evidence.  That appears in those additional pages that, I am sorry, have only been filed with the Court this morning.

It is respectfully submitted that there are so far two points.  One is that there was no occasion for the evidence to be characterised as evidence which could demonstrate consciousness of guilt and, secondly, that in terms of the actual direction that was given, the learned trial judge did not sufficiently identify for the jury the acts and circumstances – which I think is the terminology from Edwards – which would allow them to distinguish between the two otherwise intractably neutral inferences of manslaughter and murder.  The other aspect about ‑ ‑ ‑

CRENNAN J:   So are you suggesting that there is an error of the Court of Appeal, application book 272, paragraph 46?  The Court of Appeal seems to be of the view that the trial judge has fully explored the matters which he should have explored in relation to the issue of the consciousness of guilt of murder.

MR ARMSTRONG:   I take your point, your Honour.

CRENNAN J:   I mean, in a sense, the trial judge just does not accept that the post-offence conduct is intractably neutral because it seems to take the view that when you take the post-offence conduct in conjunction with all the other evidence, it was capable of supporting an inference of consciousness of guilt of murder.

MR ARMSTRONG:   That is right, your Honour, he does.  But my point is and as the Court of Appeal’s language at the passage you refer to indicates, whilst his Honour identified the post-offence conduct evidence and the issues or elements that it went to, he did not equip the jury with a line of reasoning as to how they would decide between those otherwise, in my submission, intractably neutral competing inferences, and it was incumbent on him, with respect, to do so.  Rather, what he said – and this is the final major point, if I can put it – was that, as is often the case, the jury could only the draw the inference if they were satisfied beyond reasonable doubt. 

Clearly, this was a circumstantial strands in the cable case where Edwards makes clear that that was an unnecessary, and I think in Kotzmann, described as “prudential direction” in some way to compensate, it would seem, in practice for the difficulties of this application of the law.  The problem here was that by telling the jury that they could decide that the evidence of post-offence conduct beyond reasonable doubt founded an inference of consciousness of guilt of murder but without telling them how that might happen, it is my submission that the jury were left with the impression, having asked a question about it, that without having it explained to them, there was some way known only to the judge and given to this direction given to them by his authority and therefore so persuasive that there was some unexplained way in which the evidence had that additional significance.  That was critical evidence, post-offence conduct, in the circumstances of this case where there were competing experts as to the possibility of the hypoglycaemic attack.

BELL J:   What his Honour did in response to the question was to repeat detailed directions concerning proof of intention as the necessary mental element for the offence of murder.

MR ARMSTRONG:   Yes, your Honour.

BELL J:   At transcript 2569, in reminding the jury of those parts of the evidence relied upon to prove that element, he reminded them of the Crown’s submission that both:

the lies and post killing conduct of the accused were evidence of consciousness of guilt of murder.

Then he pointed out to the jury that he had directed them already as to the way they may use the evidence and warned the jury of its potential limitations.

MR ARMSTRONG:   Yes, your Honour, but the way he had directed them that they may use the evidence was only as to the issues that it related to, not the way in the sense of how they might conduct a line of reasoning to do that.

BELL J:   Yes, he did not develop the factual basis more thoroughly, but what he made clear was that they had to be cautious in their approach to this reasoning.  He had explained what “intention” meant, which was his obligation and accurately directed concerning the necessity for this evidence if it were to be used, subject to his cautionary words, to have that capacity.

MR ARMSTRONG:   Yes, your Honour, but it is my submission, and I note the time – and I am repeating myself – that that was not sufficient in the circumstances of this case.  There are other arguments as to the matter of the extension of time, which is a live issue.  I note the time.  I rely upon the written submissions and only that you will note from the affidavit material that in my submission the applicant in this case has done all that he can anyway to try and prosecute this appeal.  That is elaborated on in the affidavit of Mr Kelly. 

Would you allow me to just add to one matter which is relevant to the availability of exhibits?  You may have noted in the Crown’s reply that it was said that the exhibits have either been destroyed or returned.  My learned friend, Mr Gyorffy, advises me this morning that in fact, as I understand it, the exhibits which have been destroyed, the only ones – and

the Crown would say they are critical – is the dressing gown and cord which were, of course, said to be, the cord in particular, the item that was used by the applicant to strangle the deceased.  It is still my submission, as put in the written submissions, that in the overall context of this case, that does not provide sufficient prejudice to the Crown such that an extension of time would not be granted on that particular aspect.  If the Court pleases.

CRENNAN J:   Yes, thank you.  Yes, Mr Gyorffy.

MR GYORFFY:   I will be very brief, your Honours.  We do not accept the proposition that there is a conflict on the authorities.  If your Honours go to page 266 of the application book, paragraph 40 from Ciantar is set out, and we would submit that it is absolutely clear beyond any doubt, when one looks at the second sentence in that paragraph, what is meant by the matter that is being questioned by the Western Australian court.  Their Honours indicate that where the evidence cannot change the meaning or give content or colour to the meaning, then it is intractably neutral and cannot be used, and really what we would submit to the Court is that the principle applied in Martinez is exactly the same principle.  All that has happened is that if we put a “because” at the end of that second sentence and follow on with the paragraph that my learned friend referred to in Martinez, you are giving the reason why that is so, and they are entirely consistent. 

The only other matter is this issue of whether in this case the evidence relied on is intractably neutral.  As your Honours would have noted from our submissions, we rely heavily on the matters your Honour Justice Bell has already referred to set out in paragraph 36 and the observation made by the Court of Appeal in paragraph 37, which is at page 267 to 268 of the application book.  The reality is this, that I have tried to think of an example and perhaps I can just give this example which is not on this case.  Somebody buys an airline ticket and goes overseas.  If the situation is that they bought the airline ticket six months ago and they have gone to visit their grandmother in a particular country which just happens to have a treaty, or does not have a treaty that allows to bring them back, that is one set of circumstances where perhaps the fact that the ticket is bought does not assist the Crown. 

Another situation might be where all the evidence is, is that the ticket has been bought and the surrounding circumstances are not identified.  That would be intractably neutral.  Another situation would be, if the offence has been committed, the person who is the accused is hiding, the policeman goes around to his house and leaves his car, saying “I would like to talk to you about what happened to X”, and then a ticket is bought and the person disappears.  In that latter context, we would submit that the jury would be entitled to look at those surrounding circumstances to give content to the purchase of the ticket.

In a clumsy way, I am trying to show what the spectrum would be.  It is only that middle one that is intractably neutral.  The first one would be intractably in favour of the defence, the second one is intractably neutral, and the third one is in favour of the Crown.  What we would submit is when one looks at the matters in paragraph 37, you get to the situation where intractable neutrality is taken out because, as the Court of Appeal rightly says in paragraph 37, the only conclusion from the acts that are there is that there was a murderous intent.  So the person knows the acts that they have committed and their actions are referable to those acts.  Those acts in the context of this case can only give rise to an intent of a murderous nature.  Please the Court.

CRENNAN J:   Thank you.

MR ARMSTRONG:   If the Court pleases, one other aspect about this is that again my learned friend highlights that even at the stage of the Court of Appeal proceeding, still, in my respectful submission, no exposition, no explanation of the line of reasoning necessary to distinguish between a manslaughter explanation and a murderous explanation has been revealed.  It should perhaps also be said to the Court that this was in circumstances where both, as I recall, of the expert witnesses – and it was essentially competing medical witnesses so‑called by the prosecution and defence – both conceded that there was, of course to varying degrees, a possibility that the applicant had been in a severe hypoglycaemic state at the precise time that the strangulation occurred. 

I take your Honour Justice Bell’s description of the other circumstances to indicate that it would be perhaps arguable that given all those other purposeful acts, then necessarily he must have been purposeful in that continuum at the actual time of murder.  But even allowing for that, both experts to varying degrees of possibility said that it was possible on the evidence, in their opinion, that despite those other purposeful acts – and there was disagreement as to how purposeful they were – the applicant may still have been in that severe hypoglycaemic state at the precise time of the strangulation and, further, that if he was – again there was agreement – but he may have been at that time acting without murderous intent.  That, in my submission, really does go to distinguish other examples.  One must really have a look at the facts of this case and if that is perhaps also understood, it highlights again the difficulty of coming up with some line of reasoning to say, well, why does that all indicate murder rather than manslaughter?

BELL J:   That very argument might be thought to somewhat undercut the proposition that you are advancing.  You are saying that there was some evidence suggesting that, notwithstanding a deal of purposeful conduct in the period before the killing, there might have been a very small window

when, as the result of the medical condition, a killing occurred in a confused mental state.  That does invite consideration of the inferences to be drawn from the purposeful conduct immediately afterwards, one might think, which is the way it was left, subject to the warning of the need that it be referable to the offence of murder.

MR ARMSTRONG:   But there was, in my submission, nothing in that possibility of the isolated hypoglycaemic attack to refute the manslaughter explanation by an unlawful and dangerous act.  In my submission, the applicant might still have been such that he at that stage committed manslaughter rather than the purported murder, is my submission.  Unless the Court has other questions, those are my submissions.  If the Court pleases.

CRENNAN J:   Justice Bell will deal with the disposition of this matter.

BELL J:   This application concerns an appeal from a conviction for murder. An application for an extension of time within the High Court Rules 2004 was opposed.

The applicant contends that the Court of Appeal of the Supreme Court of Victoria erred in holding that post‑offence conduct was capable of evidencing his consciousness of guilt of murder.  His alternative submission is that the directions as to the use to be made of the post‑offence conduct were inadequate. 

The directions were consistent with the decision of the Court of Appeal in Ciantar.  In one respect they were more favourable to the applicant than the decision in that case or in Edwards v The Queen would require.  The applicant contends that there is a tension between statements in Ciantar and of the Court of Appeal of Western Australia in Martinez with respect to the availability of consciousness of guilt reasoning where the accused’s conduct may be referable to more than one offence. 

This case is not a suitable one in which to consider any asserted uncertainty or inconsistency in this area of the law.  This was a strong circumstantial case.  When regard is had to the issues that were live at the trial, the Court of Appeal was right to conclude that the post‑offence conduct, taken with the other facts and circumstances, was capable of proving that the applicant had the intent to make his acts murder. 

The trial judge’s directions as to the use to be made of the post‑offence conduct were thorough and would have served to bring home to the jury the necessity for the conduct to be referable to a consciousness of guilt of the offence of murder.  They were not the subject of complaint by trial counsel. 

The application for an extension of time is granted.  The application for special leave is dismissed.

MR ARMSTRONG:   If the Court please.

MR GYORFFY:   If the Court pleases.

AT 12.45 PM THE MATTER WAS CONCLUDED