Hedgeland v The State of Western Australia - [2013] WASCA 97

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: HEDGELAND -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 97

CORAM: MARTIN CJ
BUSS JA
MAZZA JA

HEARD: 9 OCTOBER 2012

DELIVERED : 12 APRIL 2013

FILE NO/S: CACR 36 of 2012

BETWEEN: ANDREI PETER HEDGELAND
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :HALL J
File No  :INS 77 of 2011

Catchwords:

Criminal law - Appeal against conviction - Murder - Edwards-type lies - Whether trial judge erred in his directions to the jury - Proviso - Miscarriage of justice

Legislation:

Criminal Appeals Act 2004 (WA), s 30(4)

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

Appellant: Mr P D Yovich
Respondent: Mr J A Scholz & Ms A L Forrester

Solicitors:

Appellant: Kate King Legal Pty Ltd
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Behan v The Queen [2000] WASCA 204; (2000) 114 A Crim R 325
Broadhurst v The Queen [1964] AC 441
Civello v The State of Western Australia [No 2] [2008] WASCA 163
Coates v The State of Western Australia [2009] WASCA 142
Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1
Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193
Ellis v The Queen [2010] VSCA 302; (2010) 30 VR 428
Johnstone v The Queen [2011] VSCA 60; (2011) 31 VR 320
Martinez v The State of Western Australia [2007] WASCA 143; (2007) 172 A Crim R 389
Mule v The Queen [2005] HCA 49; (2005) 79 ALJR 1573
Murray v The Queen (2002) 211 CLR 193
Nestorov v The Queen [1999] WASCA 303
Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316
Quaid v The Queen [2011] WASCA 141; (2011) 210 A Crim R 374
R v Ciantar [2006] VSCA 263; (2006) 16 VR 26
R v Hartwick [2005] VSCA 264; (2006) 14 VR 125
R v Ibrahim [2003] VSCA 180; (2003) 7 VR 141
R v Jeffrey (1991) 60 A Crim R 384
R v Konstandopoulos [1998] 4 VR 381
R v Nguyen [2001] VSCA 1; (2001) 118 A Crim R 479
R v Renzella [1997] 2 VR 88
R v Totivan & Dale (Unreported, VSCA, 15 August 1996)
R v Tripodina and Morabito (1988) 35 A Crim R 183
R v Wright [1999] VSCA 145; [1999] 3 VR 355
Sayed v The Queen [2012] WASCA 17
The State of Western Australia v Hedgeland [2011] WASC 302
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
Zoneff v The Queen [2000] HCA 28; (2000) 200 CLR 234

INDEX

MARTIN CJ

BUSS JA

Overview of the background facts and circumstances
Overview of the State's case at trial
7 Scott Street and the places of residence of Mr Borsa, the appellant and the appellant's parents: time and distance
Overview of the defence case at trial
The grounds of appeal
Ground 1: the alleged Edwards lies
Ground 1: the appellant's submissions
Ground 1: the interview on 3 March 2010: the first alleged Edwards lie
Ground 1: the interview on 7 April 2010: the second alleged Edwards lie
Ground 1: the interview on 9 April 2010: the third alleged Edwards lie
Ground 1: the prosecutor's opening address
Ground 1: defence counsel's opening address

Ground 1: the debate between the trial judge, the prosecutor and defence counsel in the absence of the jury before the commencement of closing addresses

Ground 1: the prosecutor's closing address
Ground 1: defence counsel's closing address
Ground 1: relevant legal principles
Ground 1: the trial judge's directions

Ground 1: its merits: the evidence capable of proving that the alleged lies as to timing were deliberate lies
Ground 1: its merits: other reasons than a consciousness of guilt why the appellant may have lied and the defence case concerning those reasons

Ground 1: conclusion
Ground 2
Ground 3

Conclusion

MAZZA JA

Background
Overview of the prosecution case
Overview of the defence case at trial
Interview of 9 April 2010
Ground 1
The learned trial judge's directions on the lies particularised in ground 1
The law relating to lies allegedly told out of a consciousness of guilt
When should an Edwards direction be given?
The content of an Edwards direction

The parties' submissions
Merits of ground 1

Ground 2
Ground 3 - Aggregation of errors
The proviso
Should the proviso be applied?
Conclusion and orders

MARTIN CJ: I agree with Buss JA, for the reasons he gives, that ground 1 of this appeal should be dismissed. I agree with Mazza JA, for the reasons which he gives, that ground 2 of the appeal should be dismissed. It follows that ground 3 of the appeal, which relies upon the success of grounds 1 and 2, and the appeal itself should be dismissed.
BUSS JA: This is an appeal against conviction.
On 2 December 2011, the appellant was convicted, after a trial in the Supreme Court before Hall J and a jury, on two counts in an indictment which alleged that on 26 February 2010, at Greenmount, the appellant murdered Stefan Viorel Borsa and Sidney Marcel De Beaux (also known as Rebecca or Bec Paget). I will refer to the deceased as Mr Borsa and Ms Paget.

Overview of the background facts and circumstances

At all material times, Ms Paget resided at 7 Scott Street, Greenmount. The property was owned by her boyfriend, Martin Bridges, who was in prison.
On the morning of Sunday, 28 February 2010, a man named Glen Miller went to 7 Scott Street. He did not enter the house but he saw Mr Borsa's body in the lounge room. He noticed a powerful smell of gas emanating from the house. Mr Miller telephoned the emergency services.
Ambulance officers went to 7 Scott Street. They found that Mr Borsa was dead. They also noticed the powerful smell of gas. The gas burners on the stove had been turned on.
The police arrived at 7 Scott Street at about 10.20 am on 28 February 2010. They sealed the area as a crime scene and soon afterwards forensic examination of the area began.
On Monday, 1 March 2010, at about 1.00 am police on guard at the premises discovered Ms Paget's body under a tarpaulin at the rear of the house, but within the crime scene perimeter. She was dead.
Mr Borsa and Ms Paget had been killed by multiple blows to the head. They had been severely beaten. Dr Clive Cooke, a chief forensic pathologist, gave evidence that it was not possible to determine whether the weapon used against each of the deceased was the same or different (ts 705). The weapon or weapons used to kill them were never found. There was no forensic evidence connecting the two deceased. For example, there was no trail of blood from one body to the other.

Overview of the State's case at trial

The State's case was that both deceased were killed on the night of Friday, 26 February 2010, and that the appellant had killed them. His motive was to steal one ounce of heroin that Mr Borsa had brought to 7 Scott Street.
The evidence of Deborah Ellen Jane Mylonas (ts 813 ‑ 814), the evidence of George Mylonas (ts 899) and telephone records established (or, at least, indicated) that Mr Borsa had driven from his house at Princess Road, Balga to 7 Scott Street on the night of 26 February 2010, and that he had arrived at about 9.15 pm.
On the night of 26 February 2010, Mr Borsa's motor vehicle was set on fire in the vicinity of 7 Scott Street. The fire was first reported at 10.36 pm, and the police attended at the scene by about 10.39 pm, on that night.
The State's case was that the appellant arrived at 7 Scott Street at about 9.15 pm on 26 February 2010. He killed Mr Borsa and Ms Paget between the time of his arrival and about 10.30 pm. The appellant then set fire to Mr Borsa's motor vehicle and drove to his parents' house in Yokine, arriving at about 11.00 pm.
According to the State, on one version of events given or accepted by the appellant in a video/audio recorded interview with the police on 9 April 2010, the appellant was at a delicatessen known as the Hazelmere Deli at about 9.00 pm on 26 February 2010 and he then travelled by motor vehicle directly from the Hazelmere Deli to 7 Scott Street. The journey from the Hazelmere Deli to 7 Scott Street would have taken not more than 15 minutes. The appellant would therefore have arrived at 7 Scott Street at about the same time as Mr Borsa.
Police interviewed the appellant on three separate dates: 3 March 2010, 7 April 2010 and 9 April 2010. A video/audio record was made of each interview. Police informed the appellant at the end of the interview on 9 April 2010 that he would be charged with the murders of Mr Borsa and Ms Paget.
The State's case against the appellant was circumstantial. The State relied primarily (but not exclusively) on evidence of the following facts and circumstances to prove that the appellant had murdered each of the deceased:
(a)At all material times, Mr Borsa and Ms Paget were drug dealers. Ms Paget dealt in heroin and cannabis. Mr Borsa supplied Ms Paget with heroin.
(b)The appellant knew Mr Borsa and Ms Paget.
(c)The appellant was a drug user. He had been consuming heroin, which he obtained from Ms Paget, and amphetamines, which he obtained from Rachael Wormald.
(d)As at 26 February 2010, the appellant had agreed to purchase one ounce of heroin from Ms Paget. The price was $11,000. The appellant gave Ms Paget the impression in text message communications between them on 26 February 2010 that he had the money to pay for the heroin.
(e)However, as at 26 February 2010, the appellant did not in fact have the money to pay for the drug. He wanted the heroin and hoped it could be acquired on credit.
(f)When Mr Borsa arrived at 7 Scott Street at about 9.15 pm on 26 February 2010, he brought with him one ounce of heroin which he had obtained from a man named Ioan (also known as John) Borbil.
(g)On 26 February 2010, the appellant had the opportunity to visit Ms Paget's home at 7 Scott Street. On his own admission, he went to her home on three occasions on that date.
(h)In the week following the killing of Mr Borsa and Ms Paget, the appellant was in possession of a large quantity of heroin. He told Ms Wormald that he had 'got it on tick' (that is, on credit) (ts 971).
(i)On 5 March 2010, the appellant was arrested for a motor vehicle driving offence and placed in a cell at Mirrabooka police station with an undercover police operative. The appellant offered to supply the operative with half an ounce of heroin for $5,000.
(j)DNA consistent with the appellant's DNA profile was on a black leather bag found by the police on a bed at 7 Scott Street. DNA consistent with his DNA profile was also on the inside surface of the front left pocket of jeans that Ms Paget was wearing when her body was discovered.
(k)On 9 April 2010, the police seized clothing and shoes which were alleged to have been worn by the appellant when he went to Ms Paget's house on the night in question. Ms Paget's DNA was found on the shoes. Mr Laurence Webb, a senior forensic pathologist, gave evidence that, based on tests he had carried out, it was a valid assumption within the scientific community that stains on the appellant's shoes, which contained Ms Paget's DNA, were blood stains.
(l)Sergeant Grant Rosman, a police officer who was attached to the Forensic Division of the Crime Scene Unit, gave evidence that blood stains on the appellant's shoes were consistent with 'projected blood stains' (ts 1730).
(m)The time and place at which various telephone calls were made or received, and various text messages were sent or received, by the appellant, Mr Borsa, Ms Paget and some other witnesses, as set out in exhibit P 39.
(n)The appellant told, relevantly, three alleged lies to the police during the interviews on 3 March 2010, 7 April 2010 and 9 April 2010. The alleged lies related to the time at which the appellant last went to 7 Scott Street on the night of 26 February 2010, when both deceased were killed. The State contended that each of the alleged lies constituted an implied admission against interest. See Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193.
Mr Borsa's DNA was not found on the appellant's clothes or shoes. No DNA, consistent with the appellant's DNA profile, was found on Mr Borsa's body or clothing.
The time at which the appellant last went to 7 Scott Street on the night of 26 February 2010 was of critical importance.

7 Scott Street and the places of residence of Mr Borsa, the appellant and the appellant's parents: time and distance

At all material times, Mr Borsa resided at Princess Road, Balga, the appellant resided at Gentle Circle, Guildford and the appellant's parents resided at Raymond Street, Yokine.
Princess Road is about 35 minutes by motor vehicle from 7 Scott Street. Gentle Circle is about 15 minutes by motor vehicle from 7 Scott Street. Raymond Street is about 30 minutes by motor vehicle from 7 Scott Street.
The Hazelmere Deli is about 2 km from Gentle Circle and about 8.5 km from 7 Scott Street. The Hazelmere Deli is not more than 15 minutes by motor vehicle from 7 Scott Street.
The shortest route from Gentle Circle to 7 Scott Street by motor vehicle involves travelling on, amongst other roads, West Parade, Bushmead Road and Helena Valley Road. This route passes the Hazelmere Deli.

Overview of the defence case at trial

The appellant did not give evidence at the trial.
The defence case was that the appellant did not kill Mr Borsa or Ms Paget and that the jury could not be satisfied beyond reasonable doubt, on the evidence adduced by the State, that he had killed both or either of them.
The appellant admitted, through defence counsel, that he had lied repeatedly to the police. However, according to defence counsel, the State had selected extracts from the interviews which suited the State case theory and disregarded other parts of the interviews. She asserted that the police had formed the view early in the investigation that the appellant was guilty, and they did not adequately pursue other lines of inquiry.

The grounds of appeal

The appellant relies on three grounds of appeal.
Ground 1 alleges that the trial judge erred in his directions to the jury concerning 'lies allegedly told by the appellant out of a consciousness of guilt … so as to give rise to a substantial miscarriage of justice'.
Ground 2 alleges that his Honour erred in his directions to the jury by failing, or failing adequately, to direct that:
(a)any assertions of fact made by the police officers in the appellant's interview on 9 April 2010 were not evidence of their truth unless the appellant agreed that they were true; and
(b)the opinions expressed by the police officers during that interview, particularly their assertions that various statements made by the appellant were untrue, were irrelevant,
and, as a result, there was, according to the appellant, a substantial miscarriage of justice.
Ground 3 alleges that the errors asserted in grounds 1 and 2, in combination, gave rise to a substantial miscarriage of justice.
On 7 May 2012, Mazza JA granted leave to appeal on each of the grounds.

Ground 1: the alleged Edwards lies

The three alleged lies relied on by the State as implied admissions against interest were as follows.
The first alleged lie was told by the appellant at the police interview on 3 March 2010 and comprised the appellant's statement that he had not gone to 7 Scott Street at all on 26 February 2010 (VROI 8).
The second alleged lie was told by the appellant at the police interview on 7 April 2010 and comprised his statement that on the night of 26 February 2010 he went to 7 Scott Street 'at 10 o'clock … or probably just after, 10.00 ‑ 10.30 somewhere around there' and he saw 'a car burning on the street' in the vicinity of Ms Paget's house (VROI 5).
There were two components to this lie, namely the time at which he went to 7 Scott Street on the night of 26 February 2010 and his having seen a car burning on the street in the vicinity of Ms Paget's house.
The third alleged lie was told by the appellant at the police interview on 9 April 2010 and comprised his statement that he went to 7 Scott Street on the night of 26 February 2010 'after 10 o'clock' (VROI 9).

Ground 1: the appellant's submissions

Counsel for the appellant (who was not defence counsel at the trial) complained that the trial judge had failed adequately to direct the jury about the three alleged Edwards lies, in that:
(a)his Honour failed to identify for the jury the evidence capable of proving that the component of the second alleged lie relating to timing, and the third alleged lie, were deliberate lies; and
(b)although his Honour said that there may be other reasons than a consciousness of guilt why the appellant may have lied, his Honour failed to identify any such reasons in his directions on Edwards lies and he failed adequately to put the defence case concerning those reasons to the jury.

Ground 1: the interview on 3 March 2010: the first alleged Edwards lie

At the interview on 3 March 2010, the appellant told the police that he had visited Ms Paget on the afternoon of Thursday, 25 February 2010, and this was the last time he was at 7 Scott Street (VROI 8 ‑ 9).
The appellant also said that he spent the night of Friday, 26 February 2010, at his parents' home in Yokine (VROI 17 ‑ 18).

Ground 1: the interview on 7 April 2010: the second alleged Edwards lie

The appellant telephoned the police and arranged the second interview on 7 April 2010 (VROI 2).
He told the police that he had not 'come forward before' because he was scared (VROI 3). He was scared 'because [he did not] want to end up like [his] friends did' (VROI 3). He added that he did not want to be falsely accused of murder (VROI 3).
The appellant said that he had arranged a drug dealing transaction with Ms Paget which was to be carried out on 26 February 2010 (VROI 4 ‑ 5). However, he had been unable to obtain the money required to pay for the drug. He telephoned Ms Paget between 5.00 pm and 6.00 pm on 26 February 2010 and told her that he could not 'get the money together' and she 'went off at' him (VROI 5). The appellant attempted to placate Ms Paget by telling her that he would 'see what [he could] do' and he would 'get back to [her]' (VROI 5).
The appellant explained that in the early evening on 26 February 2010 he fell asleep at his home at Gentle Circle. He awoke at about 8.30 pm. He went 'to the deli just before it closed and bought some cigarettes'; he returned to Gentle Circle; and he attempted to telephone and send text messages to Ms Paget but she did not answer or reply. The appellant then said:
Um, at 10 o'clock … or probably just after 10.00 ‑ 10.30 somewhere around there I went past Bec's [Ms Paget's] house, um, on the way to Mum and Dad's. I went up the hill, I went past Bec's house. As I went past the car ‑ there was a car burning on the street but I didn't realise it had anything to do with Bec. I went to Bec's house, I parked out the back, um, I walked up to the backdoor of the house and I saw Stefan [Borsa] on the ground. It was dark and I wasn't able to see a lot but I saw Stefan. I called for Bec. I looked in Bec's bedroom, she wasn't in there. I went down to the shed to see if Bec was in the shed but the shed was all locked up.
Q. Mm'hm.
A. I thought that something had obviously gone very wrong and Bec had done a runner, um, at which point I kind of freaked out and I didn't know what do and, um, I got in the car and I drove to Mum and Dad's house and I got to Mum and Dad's house probably just before 11 o'clock (VROI 5 ‑ 6). (emphasis added)
The appellant told the police that when he was walking through Ms Paget's house there was 'a strong smell of gas' (VROI 11).

Ground 1: the interview on 9 April 2010: the third alleged Edwards lie

The interview on 9 April 2010 consisted of three parts. The first part began at 9.15 am and ended at 10.15 am. The second part began at 10.45 am and ended at 11.40 am. The third part began at 12.00 noon and ended at 1.30 pm.
During the first part of the interview, the appellant told the police that he went to 7 Scott Street after 10.00 pm on 26 February 2010 (VROI 9).

He confirmed that he wanted the ounce of heroin that Ms Paget had available for sale and said that he was intending to try and obtain the $11,000 purchase price from his parents (VROI 10 ‑ 11).
The appellant gave a reasonably detailed account of his movements on the late afternoon and during the evening of 26 February 2010:
(a)The appellant went to 7 Scott Street between 5.00 pm and 6.00 pm. Ms Paget was not at home. She was 'out walking the dog'.
(b)He returned to his house at Gentle Circle.
(c)He communicated with Ms Paget by text messages and she 'wanted [him] to come up'.
(d)At about 7.00 pm to 7.30 pm he returned to 7 Scott Street. He spoke with Ms Paget 'for a little while' and 'tried to arrange something' about the agreed drug transaction. Ms Paget was 'pretty angry at [him]'.
(e)The appellant left 7 Scott Street and drove to Red Rooster on Great Eastern Highway and had dinner.
(f)He then went to the Hazelmere Deli. He arrived at the deli between 8.30 pm and 9.00 pm. The deli closed at 9.00 pm. He spoke to his mother on the telephone at that time.
(g)Next, the appellant returned to his house at Gentle Circle and watched Top Gear.
(h)He then returned again to 7 Scott Street. He was unsure of the time, but when he arrived at 7 Scott Street he found Mr Borsa dead or dying in the house (VROI 15 ‑ 17).
The appellant said he had not previously given this account to the police because he was scared (VROI 18).
A little later in the first part of the interview, the appellant gave this version of events on the late afternoon and during the evening of 26 February 2010:
(a)The appellant went to 7 Scott Street 'some time just after 6.00 [pm]'. He told Ms Paget that he did not have the money to purchase the drug and she was not happy. Indeed, she was 'pissed off'.
(b)He returned to his house at Gentle Circle.
(c)Mr Borsa was supposed to arrive at 7 Scott Street with the drug at about 7.00 pm.
(d)The appellant returned to 7 Scott Street at just after 7.00 pm. Mr Borsa was not there. The appellant spoke to Ms Paget for a little while. She attempted unsuccessfully to contact Mr Borsa.
(e)The appellant went to Red Rooster and had dinner.
(f)He returned to 7 Scott Street. Ms Paget had not managed to contact Mr Borsa.
(g)The appellant went back to his house at Gentle Circle. He 'picked up a few things from there' and went to the Hazelmere Deli at between 8.30 pm and 9.00 pm. He telephoned his mother from the deli.
(h)He went back to the house at Gentle Circle and then returned again to 7 Scott Street. He was at the house at Gentle Circle 'for a little while' before going to Ms Paget's place.
(i)He arrived at 7 Scott Street, on the last occasion, at about '10 o'clock or just after'.
(j)When the appellant arrived at 7 Scott Street Ms Paget was not there, but Mr Borsa was inside the house on the floor. He looked around the house. He then went to the toilet at the library over the road from Ms Paget's place. He returned to 7 Scott Street and looked for Ms Paget. He also searched the house for money and drugs without success. He then drove his car to the library and walked back to Ms Paget's place. He collected some tools that he had left there at an earlier date. He placed them in the boot of his car and drove to his parents' place in Yokine, arriving at about 11.00 pm (VROI 24 ‑ 28).
The appellant told the police in the course of the first part of the interview that he did not turn on the gas while he was searching Ms Paget's house. He maintained that the gas was not turned on while he was there (VROI 29).
During the second part of the interview, one of the police officers, Detective Senior Constable Leslie, asked the appellant some questions about the location of the Hazelmere Deli, where he had come from when he arrived at the deli on the night in question, and where he went after he left the deli:
DETECTIVE SENIOR CONSTABLE LESLIE: Okay. Andrei, I'm not familiar with the area. Um, the Hazelmere deli that you stopped off at can you show me where that is please?
A. Um, ‑ ‑ ‑
Q. Which way did you come from?
A. It's just down here.
Q. What street's that one?
A. Um, Hazelmere Crescent.
Q. Okay. So you've come from which way, which direction?
A. Ah, um, the house in Guildford's here, Gentle Circle.
Q. Mm hmm.
A. You come down and the house is just there. Ah, the deli, sorry, is just there.
Q. Okay. And then you've left the deli and travelled which way?
A. Um, up Bushmere [sic] ‑ ‑ ‑
Q. Yeah.
A. ‑ ‑ ‑ Helena Valley up to Scott Street.
Q. Okay (VROI 46 ‑ 47). (emphasis added)
During the third part of the interview, one of the police officers, Detective Senior Sergeant Fyfe, purported to summarise what the appellant had told them about his movements on the late afternoon and during the evening of 26 February 2010:
Q. Okay. Um, what I wanna do, Andrei, is just go over everything you've told us, um, from that night when you've gone up there and what not. Um, so what you've told us you've gone up there. Um, Bec [Paget] was there. You've gone up to discuss this ounce. Okay, you went up to see Bec about 5.00 or 6 o'clock, she wasn't home. She's out walking the dog …
…
Q. She's gone off. You've left, went back to Guildford.
A. Yep.
Q. Um, you've gone back up there about 7.30. You've talked to Bec about this ounce trying to discuss some arrangement getting it on tick, payment etcetera, what not. You've left again and gone to Red Rooster Great Eastern Highway, got some dinner. Ah, Bec's trying to get hold of Stefan [Borsa] in the meantime. Prior to you leaving you've gone back ‑ gone to the Hazelmere deli just before it closed. You've spoken to your mum.
A. Yep.
Q. Then you've gone back to Bec's from the Hazelmere deli.
A. That's right, yep.
Q. When you've gone up there that's when you've parked your car, you've gone in and you've seen Stefan. Um, you've looked around the house then you've walked over to the library. You've gone back to Bec's place. You're looking around for Bec. You've gone back inside, you've looked for money, you've looked for gear. You couldn't find any. You've gone out, got in your car, drove over to the library, then you've walked back to Bec's place. You picked up some of your tools and your stuff that were there, took them back to your car, put them in the boot, gone home, you're back home about 11 o'clock at night.
A. Yep (VROI 7 ‑ 8). (emphasis added)
The appellant told the police that he assumed the gas he smelt when he searched Ms Paget's house was 'coming from the … kitchen stove' (VROI 6).
The appellant admitted that 'the story [he] told' at the interview on 7 April 2010 was untrue (VROI 9). In particular, his earlier statement that when he approached 11 Scott Street at between 10.00 pm and 10.30 pm on 26 February 2010 'there was a car burning on the street' was false (VROI 10). There was 'no burning car' (VROI 10). He did not know why he had made the untrue statement about the car (VROI 10).
The appellant denied having set fire to Mr Borsa's motor vehicle (VROI 14 ‑ 15).

Ground 1: the prosecutor's opening address

The prosecutor, in her opening address, outlined in detail the facts and circumstances relied on by the State to prove its case against the appellant.
After referring at some length to the appellant's interviews with the police and other evidence to be adduced by the State, the prosecutor said towards the end of her address:
Last but by no means least are the records of interview of [the appellant] with the many lies, half truths and inconsistencies they contain (ts 71).

Ground 1: defence counsel's opening address

Defence counsel elected to make an opening address.
She frankly acknowledged that the appellant had lied to the police and others:
Now, one of the things you would understand from what the prosecution has told you is that they rely very heavily upon the fact that [the appellant] spoke to the police on several occasions and he lied. He spoke to his ex‑wife and he lied. He spoke to other people undoubtedly, and didn't always tell the truth. And the prosecution say this is one of the things that you can draw on in determining that he's lied to the police and others, because he's guilty. But think about that theory for a moment (ts 75). (emphasis added)
Defence counsel admitted in substance that the appellant's statement at the police interview on 3 March 2010, that he had not gone to 7 Scott Street at all on 26 February 2010, was a lie (ts 75).
Defence counsel referred to lies told by the appellant in his interviews with the police and said the question for the trial was not whether the appellant had lied to the police, but why he had lied:
You see people don't always lie to the police because they've committed the crime. Sometimes people lie to the police because they're scared of the truth and they're scared that people won't believe them. So when you watch those video records of interview, as you will in court, and you may well watch them again in the jury room, expect to see [the appellant] stumbling over himself, contradicting himself, changing his story. He is all over the place. But remember that [the appellant] has very good reasons to not want to tell the truth despite the fact - despite the fact that he didn't kill them. [The appellant] remember, was at the time of these offences, a drug addict. [The appellant] was at the time of these offences all over the place. And the problem when you tell a lie is it's hard to remember which one you've told. And so the truth is when people in courts tell lies, they quite often get caught out, because if you push them hard enough, a good cross-examiner pushes them hard enough, they contradict themselves. They stumble over things.
And the one thing I guarantee when you finish watching those three video records of interview, you'll say, 'That [the appellant] is a big liar. He lied to the police, he lied his heart out. I don't know what's the truth and what's lie.' That much, I'm sure, the prosecution and the defence and, indeed, yourselves will be in whole-hearted agreement. The question for this trial isn't whether [the appellant] lied to the police. The question for this trial is why (ts 76). (emphasis added)
Defence counsel sought to identify innocent explanations for the lies; in particular, the appellant's involvement in drugs, his desire to avoid the police becoming aware of that involvement and, later, a fear that the police might wrongly accuse him of the murders (ts 75 ‑ 76).
Defence counsel made several formal admissions, in the presence of the appellant, pursuant to s 32 of the Evidence Act 1906 (WA). The admissions included:
(a)the appellant went to 7 Scott Street on the evening of 26 February 2010, but he was not at the address when Mr Borsa and Ms Paget met their deaths; and
(b)he had 'previously been to the house at 7 Scott Street … prior to the day in question and in fact had been there on multiple occasions' (ts 79).
Defence counsel concluded her address by telling the jury that it would, throughout the trial, 'hear a lot of evidence about lies [the appellant has] told and about his drug use and about his problems, but none of [these] things … make him a killer' (ts 83).

Ground 1: the debate between the trial judge, the prosecutor and defence counsel in the absence of the jury before the commencement of closing addresses

Before the commencement of closing addresses, there was a debate between the trial judge, the prosecutor and defence counsel, in the absence of the jury, in relation to the alleged lies which the State intended to rely on as Edwards lies (ts 1610 ‑ 1619).
After the prosecutor had made submissions to his Honour, defence counsel said, in substance, that she accepted that the appellant had told a deliberate lie about the burning vehicle. She did not, however, accept that the appellant had told a deliberate lie as to the time of his last visit to 7 Scott Street on the night in question:
In relation to the lies on the 7 April video to which my friend referred, in terms of the assertion that [the appellant] had seen the car burning, I think in fact the position between the parties is unusually the same but for different reasons. We likewise will be telling the jury that was a lie. We likewise will tell the jury that [the appellant] was trying to extract himself from ever being at the house. The only reason ‑ the only difference between the parties is what we attribute is the reason for doing that. So I think both the State and the defence are in many ways going to make a similar proposition to the jury about the 7 April video, but of course we will offer to the jury a different reason for why he told those lies. The time issue, of course, is in dispute. We don't accept that he was lying about that. But having said that, the State's contention will be that he was and if that is their contention then it seems to me your Honour must give the jury a direction in relation to that (ts 1619). (emphasis added)

Ground 1: the prosecutor's closing address

The prosecutor submitted in her closing address that the appellant lied at the interview on 3 March 2010 because 'he was conscious that he had killed these people and he was trying to conceal it from the police' (ts 1658). She repeated and developed that submission later in her address:
And the State says that this … lie on 3 March that he stayed at home all night at his parents' house is such a significant lie … that you can use that as part of your reasoning towards guilt in this matter … we say that that is such a significant lie that it shows that he was conscious at that time that he had killed these people and he lied to cover himself (ts 1689).
The prosecutor referred to the lie about the burning car and the alleged lie about the time the appellant arrived at 7 Scott Street:
In the first part of his record of interview on 9 April [the appellant] says this: When I got there, there was a green 4-wheel drive out the front. Um, I don't know why I remember the green 4-wheel drive out the front, but there was a green 4-wheel drive out on the road.
Again, no more information. And this was just after he told the police that he'd arrived somewhere … around 10 or just after. It's hardly surprising, you might think, that the police didn't ask for more information about that car at that stage. [The appellant] was still lying about what time he'd got to the house. He never said he saw anyone at the house. He told the police in the earlier interview that he'd only arrived after the car was burning. He'd actually driven past the burning car, he said and the police knew that that was after 10.25 pm. So if [the appellant] was telling the truth about when he went to the house at that time, this 4-wheel drive was a complete furphy. Of course, it wasn't till the second part of that 9 April interview that he admitted he'd even lied about the time that he got there. But nowhere, not one time after he admits that he was at that house just after 9 on that night does he ever mention again that 4-wheel drive (ts 1687 ‑ 1688). (emphasis added)
Later in her closing address, the prosecutor submitted that the appellant told a 'significant lie' in the 7 April 2010 interview and in the first part of the 9 April 2010 interview, which the jury could use 'as part of [its] reasoning towards guilt', namely:
[The appellant] told the police on 7 April that he went to the house just after 10 or 10.30 and on the way he says the car was burning and he saw it burning on the side of the street.
On 9 April, this is the second part of 9 April he said that what he [had] said, that the car was burning, that was just totally untrue and he had no idea why he had told the police that story. The State says that he told that story because he knew that both of these people were dead by then. By the time the car was burning he knew that both of those people were dead and he was deliberately and in a significant way putting himself up at that house only after he knew them to be dead and the State says that that is the only possible reason that he can have told such a blatant lie … the State's position [is] that that is such a significant lie in the context of this case that you can use it to reason that [the appellant] was conscious of his own guilt.
It also shows something else, that lie, and this is the lie about the car burning in particular. He describes seeing the car burning on the street as he went up there. That's not something on his [last] version that he ever saw. His last version, he says he never saw that and yet watch him describe it. He doesn't describe it in very much detail, but he saw it. He's describing something that he saw and he saw it, because he lit it.
He must we say have realised what he said which is why he retracted it on 9 April, but he still continued to put himself up there after 10 pm until he mucked up and said he'd gone straight there from the deli, so on his own version he was up there from say even on the most extreme estimate about 9.15 pm and probably a bit before that until around 10.30 pm because according to his father and as far as could be said his mother he got home around 11 or just after. All of the time that it was possible for Stefan Borsa to be killed, he was there.
If it was at 10.25 pm that Jason Mason saw that man in gloves walking away from where Stefan Borsa's ute was later seen burning, then he had time enough to walk up to the library where he'd parked his car and leave. And incidentally, that car fire, as I think I've already mentioned, was first reported at 10.36 pm and the police were there by 10.39 (ts 1702 ‑ 1703). (emphasis added)
The prosecutor summarised the appellant's final version as to timing in the 9 April 2010 interview:
[A]fter all the different versions that he gave on the 7th and the 9th, this is what he says he did. Just after 6 pm, he went up to Scott Street. Went back to Guildford. 7 to 7.30, went back to Scott Street when she was trying to contact Stefan Borsa. Then went to Red Rooster. Then back to Scott Street. Then back to Guildford where he picked up a few things. Then to the Hazelmere Deli where he was between 8.30 and 9. Then to Scott Street, at which point Stefan Borsa was dead. And then he's at the house in the lounge room looking for Rebecca [Paget] around the house and then down at the shed. Walked to the library and looked for Rebecca [Paget]. Went back to the house. Looked for money and gear. Drove the car to the library … walked back to house, took his tool and his drill. Walked back to his car and went home [to Yokine] (ts 1720).

Ground 1: defence counsel's closing address

Defence counsel endeavoured in her closing address to disparage the State's case in relation to the appellant's lies:
And then, of course, what we do if we're the prosecution is this. We say, '[the appellant] lied. He lied on the videos over and over again'. Yes, he did and I'll take you through a little bit about that. 'But what we're going to do is every time he says something that helps us, we won't call that a lie. We'll call it the truth. So we'll say lie, lie, lie, true. Grab that bit, okay, because we like that'. 'So at one point when he says, "I went from the Hazelmere Deli to Scott Street", that works for us because 8.30, 9 o'clock go to Scott Street. He's there when Borsa dies. Game, set, match. What we'll do is when he said, 10 minutes earlier, that he went from the deli to watch Top Gear at home and then to Scott Street, we'll pretend that bit didn't happen and we'll call that a lie. And what we'll do is we'll call the bits that help us the truth and we'll call the bits that don't help us a lie'. How do you do that? (ts 1748)
It is apparent from this passage that defence counsel was inviting the jury to conclude that it should have no greater confidence in the accuracy of the appellant's final version as to timing than his earlier version.

It was submitted on behalf of the appellant that the appellant's reluctance, at least initially, to tell the truth to the police lay in his disgraceful behaviour after he found Mr Borsa dead or dying. The appellant went to 7 Scott Street 'to be a drug dealer', he did not check on Mr Borsa's condition, he did not call for medical or other assistance and he took the opportunity to search the house with a view to stealing drugs and money (ts 1750 ‑ 1751). Defence counsel then said that, against this background:
You might understand why, without section 11 certificates and immunities in particular, [the appellant] might be a little reluctant to say, 'I went there to buy some drugs, a big lot of drugs. I went to the house and saw a dead body and didn't call for help. I saw a man who I thought was dead and never bothered to check if he was in fact breathing or if I could help him. And at the end of all of that, I thought, hey, this is a great opportunity to see if I can steal some drugs and money'. It's not a pleasant story and [the appellant] now will probably regret, but didn't ever tell the full story, you might think. But the full story is not the one the State think it is and I'll take you through why that is so. So you deny it (ts 1751).
Defence counsel conceded that the appellant, by failing to tell the truth initially, had dug himself into 'a deeper and deeper hole' and that during the 9 April 2010 interview he 'can't tell the truth anymore because he's told too many lies' (ts 1754 ‑ 1755). However, she submitted to the jury that the appellant had not lied because he had murdered Mr Borsa and Ms Paget:
[The appellant] was there at the house for an unlawful purpose. He was dealing [in drugs]. He found a dead body; he didn't want to touch it. He didn't know where Bec [Paget] was. He tried to gain from the situation by trying to steal from the house. Being concerned he might be a suspect he removed some of his items from the house, including his toolbox. And then fearing what the police may think, and did think, and worry about how his actions might look, he did what seemed at the time the easiest answer of all. He lied. The problem when you tell a lie is even when you start … telling the truth, no one believes you anymore … And the problem is, whatever you say from that point on is just going to start muddying the waters even more. The difficulty for [the appellant] is by failing to tell the truth at the start he just dug himself into a deeper and deeper hole. And by 9 April he was in so deep he couldn't climb out. You watch those videos, by all means, and you'll see a man who's scrambling for answers. You'll see a man who's thinking, 'What did I say last time? Oh god, what am I doing now, what am I supposed to be saying now?' You see a man who can't tell the truth anymore because he's told too many lies. But he hasn't done that because he's the killer. He's done that for an entirely different reason. And a perfectly logical one, at that (ts 1754 ‑ 1755). (emphasis added)
Defence counsel referred to the appellant's 'two versions' at the 9 April 2010 interview as to his movements after he left the Hazelmere Deli at about 9.00 pm on 26 February 2010. She suggested, in substance, that the appellant's version to the effect that he departed from the Hazelmere Deli at about 9.00 pm and travelled directly to 7 Scott Street was unreliable and the result of the police talking 'for him' and talking 'over him' and then paraphrasing (ts 1769). She said that when the appellant was given the opportunity 'to talk' for himself (ts 1769), he gave a reliable account of his movements, as follows:
I went Bec's, Red Rooster, deli, back and watched Top Gear at Gentle Circle, then went back up to Scott Street (ts 1770).
So, according to defence counsel, the appellant's initial account of his movements on the night in question should be rejected.
Defence counsel emphasised that the Hazelmere Deli was near the appellant's house at Gentle Circle and he would pass the deli when driving from Gentle Circle to 7 Scott Street (ts 1770).
Defence counsel conceded that the appellant had told a deliberate lie about Mr Borsa's burning vehicle. She also conceded that he told the lie for the reason asserted by the prosecutor, namely, 'to try and help him not be accused of these crimes' (ts 1772). The point of difference between the State and the defence was that the defence maintained that the appellant had not committed the murders:
In the earlier video on 7 April, he does say he saw the burning car. And then, you'll remember, by 9 April he says, 'Look, I really didn't'. Think about why he might tell that lie. One, because he's the killer. That's what the State will say. But two, he does that video on 7 April because of Rebeca Hedgeland. That's the State's case and you've heard that call. And Rebeca's scaring him, 'The Police think it might be you, you know they've found your DNA, they've got this stuff at your house'. So what he thinks his best thing to do would be, 'Put myself at the house after the car is already on fire. That way, I can't have killed them'. It's a lie told for probably the same reason the State tell you the lie was told. It's a lie told to try and help him not be accused of these crimes. But the State and we would differ as to whether, in fact, he committed these crimes. There's no doubt that we all agree, [the appellant] thought that the police was [sic] accusing him, and that when [the appellant] talked to the police he continued to think that more and more so. So yes, he told a lie about the burning car on 7 April. But by 9 April he does say, 'I just didn't see the burning car' (ts 1772). (emphasis added)
Defence counsel submitted that the evidence, when properly considered, could not satisfy the jury beyond reasonable doubt that it was the appellant who had killed Mr Borsa and Ms Paget (ts 1755 ‑ 1756).

Ground 1: relevant legal principles

In the present case, the implied admissions against interest constituted by the alleged Edwards lies were not the only evidence against the appellant and were not an indispensible link in a chain of evidence necessary to prove his guilt. Accordingly, it was unnecessary for the lies (and their character as admissions) to be proved beyond reasonable doubt. See Edwards (210) (Deane, Dawson & Gaudron JJ).
Also, in the present case, the alleged implied admissions against interest were not relied upon as corroboration of a witness's evidence as distinct from merely strengthening the State's case. See Edwards (211).
In Edwards, the High Court distinguished between lies told by an accused which affect only his or her credit and lies told by an accused that are evidence because they constitute implied admissions against interest. Lies will constitute implied admissions if they are told out of a consciousness of guilt; that is, the accused told the lies because of a realisation of guilt and a fear of the truth.
A lie told by an accused will not be evidence of his or her guilt unless:
(a)the lie was deliberate;
(b)the lie relates to a material issue at the trial and reveals a knowledge by the accused of the offence in question or some aspect of it;
(c)the lie was told out of a consciousness of guilt; that is, the accused knew the truth would implicate him or her in the offence; and
(d)the statement which is alleged to constitute the lie is shown clearly to be a deliberate lie by the accused's admission or by other evidence.
See Edwards (209 ‑ 211).
Ultimately, these preconditions to a lie being evidence of the accused's guilt raise questions of fact to be determined by the jury.
An Edwards direction is ordinarily essential if the State relies on a lie told by the accused as evidence of his or her guilt. As Lord Devlin observed in Broadhurst v The Queen [1964] AC 441, 457, there is a natural tendency for a jury to think that, if an accused is lying, it must be because he or she is guilty. The rationale for giving an Edwards direction is the avoidance of a perceptible risk of a miscarriage of justice if the jury were to misuse the lie so as to make a finding of guilt by impermissible reasoning. There is no precise verbal formula for the direction. A trial judge should tailor the direction to the circumstances of the case. See R v Konstandopoulos [1998] 4 VR 381, 388 (Callaway JA, Winneke P & Kenny JA agreeing); Nestorov v The Queen [1999] WASCA 303 [11] (Kennedy J, Ipp J agreeing); R v Ibrahim [2003] VSCA 180; (2003) 7 VR 141 [42] (Eames JA, Vincent JA & Ashley AJA agreeing).
If an Edwards direction is required, the direction must ordinarily encompass the following:
(a)the lie must be precisely identified;
(b)the jury must be told that the lie will not be evidence against the accused unless the lie was deliberate;
(c)the jury must be reminded that there are many reasons why people tell lies, apart from the realisation of guilt;
(d)the jury must be told that it cannot use the lie as evidence against the accused if it accepts an explanation for the lie that is consistent with innocence;
(e)the jury must be told that the lie will not be evidence against the accused unless the lie was told out of a consciousness of guilt (that is, the accused knew that the truth would implicate him or her in the offence) and the lie reveals knowledge of the offence charged or some aspect of it; and
(f)the facts, events and circumstances relied on by the State to indicate that the lie constitutes an admission against interest must be precisely identified.
See Edwards (209 ‑ 211); Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316 [42] fn (83) (Gaudron & Gummow JJ); R v Hartwick [2005] VSCA 264; (2006) 14 VR 125 [94], [113] (Charles, Chernov & Nettle JJA); R v Ciantar [2006] VSCA 263; (2006) 16 VR 26 [81] ‑ [85] (Warren CJ, Chernov, Nettle, Neave & Redlich JJA); Martinez v The State of Western Australia [2007] WASCA 143; (2007) 172 A Crim R 389 [275] ‑ [285] (Martin CJ, Steytler P & Miller JA); Ellis v The Queen [2010] VSCA 302; (2010) 30 VR 428 [3] (Nettle, Neave & Harper JJA); Johnstone v The Queen [2011] VSCA 60; (2011) 31 VR 320 [3] (Nettle JA), [68] ‑ [81] (Neave JA), [104] (Tate JA).
An imperfect Edwards direction will not automatically result in the quashing of a conviction. In Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1, McHugh and Gummow JJ said:
[I]t is not enough to establish that a miscarriage of justice has occurred by showing that it would have been better if the trial judge had given an appropriate direction concerning the effect of lies or that there is a possibility that the jury may have reasoned that the accused was guilty because he had lied to the police. To succeed in the appeal, Dhanhoa must establish that it is a reasonable possibility that the failure to direct the jury 'may have affected the verdict' (Simic v The Queen (1980) 144 CLR 319 at 332) [60]. (original emphasis)
See also R v Totivan & Dale (Unreported, VSCA, 15 August 1996) at 12 ‑ 13 (Callaway JA, Phillips CJ & Smith AJA agreeing); R v Renzella [1997] 2 VR 88, 92 (Winneke P, Charles & Callaway JJA); Ibrahim [54] ‑ [56].

Ground 1: the trial judge's directions

The trial judge explained to the jury, in his summing up, that it must determine the issues in the case 'on the evidence' and that the evidence comprised 'the witnesses who you have heard give evidence on oath and it is the exhibits, including the audio and visual recordings that you will receive' (ts 1823). He added that 'the evidence is what the witnesses say or is in the exhibits' (ts 1823).
Later in his summing up, his Honour noted that a 'major area of evidence was the police interviews' (ts 1910). He said:
And you have those. I've taken you to the last of them. You can not only read the transcripts which, as I said to you, were only really an aid to the primary evidence. You will have the original [DVDs] of those interviews and you'll have equipment that enables you to watch them. And you should feel free to do so if you wish to. I've taken you to some parts of those. And as I said at the beginning, [that] doesn't necessarily mean it's the most important parts. You might think there are other parts that are important. And if that's your view then, of course, you should rely upon those other parts. The prosecution relies on some of them, on some lies being told and some of those as being lies told out of guilt. And I referred to that yesterday. There's no need, I think now, to refer to the rest of those interviews in detail (ts 1910).
The DVDs containing the video/audio records of interview were played to the jury when they were tendered by the prosecutor (ts 409, 1500, 1576 ‑ 1577).
The trial judge suggested to the jury how it might approach the task of assessing the evidence, including the credibility and reliability of the witnesses:
Now, assessing the evidence is a job for you. That means not only putting it together to see what it proves or may not prove, but also deciding which of it you accept. It is not simply a matter of saying, 'I believe this witness or not this one'. You might accept some, all or none of a witness's evidence. You may find a witness convincing in one respect, but not in another. That's a matter for you. When you're assessing the evidence of witnesses you will take into account their credibility and reliability. Credibility means simply honesty, their truthfulness. Reliability means that a witness may be honest, but not reliable because, for example, they have a faulty memory.
Credibility, in assessing that, you can look at what a witness has said, but also the way that they have said it. In looking at what a witness has said you should consider factors such as their consistency, whether they have said the same thing in their evidence or whether they have contradicted themself or others. You can also look at the way in which their evidence is given. That means the demeanour, the way they've behaved and their body language …
Now, in assessing credibility you can apply the skills that you have all acquired in the course of your lives. Being a juror doesn't have any special qualifications. You are here because you are members of the community and that you are on the electoral roll. But because it doesn't have any special qualifications doesn't mean that you don't bring some experience and abilities to the role of being jurors. You can apply the skills you have all acquired, common sense and experience of life, in assessing the evidence of the witnesses and indeed you should do so. It's something that you would do, perhaps unconsciously, every day in the course of your lives. If you meet someone new and you're assessing what they say, you'll be considering their credibility and reliability if it's something important. There's no reason why you shouldn't apply those same skills in assessing the evidence of the witnesses here (ts 1825 ‑ 1827).
His Honour directed the jury in relation to the alleged Edwards lies, as follows:
(a)The State's case was that the appellant lied to the police about the time he went to 7 Scott Street on the night of 26 February 2010 (ts 1830).
(b)The appellant gave different accounts to the police as to where he was on the night of 26 February 2010, whether he had gone to 7 Scott Street that night, how often he had gone there on that night, and the time or times at which he had gone there (ts 1830).
(c)The appellant did, however, consistently deny having killed either Mr Borsa or Ms Paget (ts 1830).
(d)The fact that a person has lied to the police does not necessarily mean he or she is guilty (ts 1831). His Honour elaborated:
It may depend upon the nature of the lie; that is, how significant it is, and whether other possible explanations for lying can be excluded (ts 1831).
(e)In the present case, the State had identified three lies, one in each of the appellant's interviews with the police, which it alleged were significant and could only be explained by the appellant 'wanting to avoid the truth because he was responsible for the killings' (ts 1831).
(f)The answers given by the appellant to the police at the interviews, which the State relied on as lies, could be identified by referring to the transcripts of the interviews (ts 1831).
(g)His Honour then analysed the transcripts of the interviews and identified each of the alleged Edwards lies (ts 1831 ‑ 1835).
(h)As to the first alleged lie; that is, the appellant's assertion at the police interview on 3 March 2010 that he had not gone to 7 Scott Street at all on 26 February 2010, his Honour identified the alleged lie by reference to the transcript of the interview (ts 1831 ‑ 1833). His Honour instructed the jury that, on the State's case, it was 'both a significant lie and a lie told by [the appellant] … out of what is called a consciousness of guilt … an innocent man would not have told that lie, they say' (ts 1833).
(i)As to the second alleged lie; that is, the appellant's assertion at the police interview on 7 April 2010 that on the night of 26 February 2010 he went to 7 Scott Street 'at 10 o'clock … or probably just after, 10.00 ‑ 10.30 somewhere around there' and that he saw 'a car burning on the street' in the vicinity of Ms Paget's house, his Honour identified both components of the alleged lie by reference to the transcript of the interview (ts 1833 ‑ 1834). His Honour instructed the jury that the State alleged that the lie was 'of a significant type and one told by [the appellant] because he knew he was guilty of the killings' (ts 1834).
(j)As to the third alleged lie; that is, the appellant's assertion at the police interview on 9 April 2010 that he went to 7 Scott Street on the night of 26 February 2010 'after 10 o'clock', his Honour identified the alleged lie by reference to the transcript of the interview (ts 1834 ‑ 1835). His Honour instructed the jury that the State relied on this alleged lie as being a lie of the same type as the second alleged lie (ts 1834 ‑ 1835).
(k)On the State's case, the appellant was falsely placing himself at his parents' house (the first alleged lie), and was falsely placing himself at 7 Scott Street 'after a time at which he might have believed that the murders had been committed' (the alleged second and third lies), in order to conceal his involvement in the crimes (ts 1835).
(l)The jury could not use the alleged lies as evidence of the appellant's guilt unless:
(i)the jury accepted that the lies were 'untruths told deliberately to the police' (ts 1835);
(ii)the jury was satisfied that 'the reason that [the appellant] told those lies is because he was involved, he was conscious of his own involvement in these killings' (ts 1835); and
(iii)there was 'no reason reasonably open that he would have lied about those things than that he was involved' in the killings (ts 1835).
(m)It was necessary for the jury to consider whether there was 'any other possible explanation for the lies' (ts 1835). His Honour said that 'people lie to the police for other reasons on occasions than that they are involved in the crime' [sic] (ts 1835).
(n)There were inconsistencies in the appellant's answers during the police interviews and defence counsel frankly acknowledged that the appellant had lied (ts 1870). It was submitted by defence counsel that there were 'good reasons for him lying, that he did so out of fear of being unfairly implicated in these offences and because he was involved in drug dealing and that his lies in those circumstances might be understandable' (ts 1870). His Honour also said:
I think you need to take into account, in respect to interviews with the police, that a person may, indeed, tell the truth on some occasions and not on others. And if they say things which appear to be admissions against their interest then they're more likely to be true, you might think. If, as we know he did, [the appellant] told the police that he had been to the scene of what was quite evidently, by the time he was being interviewed by the police, the scene of crimes, it's not likely he would be saying that unless it was true. That is, it's not likely he would be saying he went there unless it was true. But as [to] the time of when he went there, that's something, obviously, the prosecution disputes. And that might be a matter that you need to consider in some detail (ts 1870).
(o)His Honour then analysed, in the context of the police interview on 9 April 2010, the written summary of the record of relevant telephone calls and text messages on, relevantly, 26 February 2010, which had been tendered as exhibit P 39 (ts 1870 ‑ 1888, 1894 ‑ 1895). His Honour noted that exhibit P 39 provided an objective indication of who telephoned whom, who sent a text message to whom, and in each case at what time (ts 1869).
(p)As to the third alleged lie, his Honour specifically drew the jury's attention to the passage in the 9 April 2010 interview in which the appellant said that he went from the Hazelmere Deli to his house at Gentle Circle and watched Top Gear before returning to 7 Scott Street (ts 1882 ‑ 1883). After referring to that evidence, his Honour mentioned the lack of any text messages between about 9.00 pm and when the appellant said he returned to Scott Street after 10.00 pm (ts 1883 ‑ 1884). A little later, his Honour observed:
Now, as I say to you, if the fire was lit at about 10.30 pm it would have been possible, you might think, for [the appellant] to have lit it if he could drive to his parents' home and be there by 11 pm or shortly after. Accepting that their evidence is accurate in that regard. Whether he did or not is a matter for you. Depending on your view of the evidence, it's possible for [the appellant] to have been at 7 Scott Street at sometime after Mr Borsa arrived, at approximately 9.15 pm and before 10.30 pm, given that he arrived home at 11 pm. So that's a matter that you might want to take into account in assessing the evidence in this case. The fact that he had opportunity, of course, doesn't mean he did it, but it is a relevant factor for you to consider (ts 1888).
(q)His Honour summarised the defence case, including the defence case in relation to the alleged lies (ts 1917 ‑ 1925, 1928 ‑ 1929). The summary included reference to the reasons advanced by defence counsel for the appellant having lied to the police; in particular, his reluctance 'to tell a story about going to buy drugs, having been to the house and found a body and having looked for drugs and money … and then [leaving] without alerting the authorities' (ts 1919) and his decision 'to protect himself from a police accusation which … he knew was untrue' (ts 1921).
(r)His Honour pointed out that the primary evidence in relation to the police interviews was the original DVDs, and the transcripts were merely an aid (ts 1910).

The trial judge referred in his summing up to other lies told by the appellant which went only to his credit. He gave the jury this instruction as to the relevance of these other lies:
How can they be relevant? Well, they can be relevant in assessing the credibility of [the appellant] in regards to the answers that he gave to the police. If you think that he has told other lies, then that might be a matter that you take into account in assessing whether you can believe other things that he said; that is, do those other lies cause you to place less weight on or reject what he says to the police regarding his lack of involvement? Well, as regards his denial of responsibility; that is, in those police interviews, that's before you as evidence along with everything else. Of course, it's not simply a matter of deciding whether he was truthful or not when he said he had nothing to do with the killings. You need to consider all of the evidence in the case (ts 1836).
Neither the prosecutor nor defence counsel sought any redirection or additional direction from his Honour in relation to the alleged lies (ts 1930 ‑ 1931).

Ground 1: its merits: the evidence capable of proving that the alleged lies as to timing were deliberate lies

The trial judge's direction in relation to the component of the second alleged lie relating to timing, and the third alleged lie, was imperfect.
His Honour did not precisely identify the facts, events and circumstances capable of proving that the appellant's alleged lies as to timing were deliberate lies.
However, I am satisfied that there is no reasonable possibility that this inadequacy in the direction may have affected the verdict of guilty. There is no reasonable possibility that, as a result of the inadequacy, the jury may have misused the appellant's alleged lies as to timing so as to make a finding of guilt by impermissible reasoning. No miscarriage of justice occurred. My reasons for these opinions are as follows.
First, the trial judge's failure, precisely to identify the facts, events and circumstances capable of proving that the alleged lies in question were deliberate lies, must be considered in the context of the issues in dispute at the trial, and the manner in which the State and the defence ran their respective cases in relation to the Edwards lies generally.
Defence counsel told the jury, in her opening address, that she 'guaranteed' that when the jury completed watching the video/audio records of interview they would form the opinion that the appellant was 'a big liar' and that he had 'lied his heart out' to the police (ts 76). She said that the issue at the trial was not whether the appellant had lied to the police, but why he had lied. Defence counsel told the jury that although the appellant had lied to the police, that did not 'make him a killer' (ts 83).
Similarly, defence counsel told the jury, in her closing address, that the appellant, by failing to tell the truth initially, had dug himself into 'a deeper and deeper hole' and that during the 9 April 2010 interview he 'can't tell the truth anymore because he's told too many lies' (ts 1754 ‑ 1755). Nevertheless, according to defence counsel, the appellant had not lied because he had murdered Mr Borsa and Ms Paget (ts 1754 ‑ 1755).
Secondly, the appellant told each of the alleged lies during the video/audio recorded interviews with the police.
On the State's case, each of the alleged lies was falsified by admissions made by the appellant during the interviews (ts 1702 ‑ 1703). The State did not rely on other evidence to falsify any of the alleged lies (ts 1702 ‑ 1703).
Thirdly, his Honour instructed the jury that it could not use the alleged lies as evidence of the appellant's guilt unless, relevantly, the jury accepted that the lies were 'untruths told deliberately to the police' (ts 1835).
Fourthly, as to the first alleged lie (namely, the appellant's statement at the interview on 3 March 2010 that he had not gone to 7 Scott Street at all on 26 February 2010), the appellant repudiated this statement at the interviews on 7 and 9 April 2010. At trial, defence counsel conceded that the statement on 3 March 2010 was a deliberate lie (as it undoubtedly was).
Fifthly, as to the component of the second alleged lie which comprises the appellant's statement at the interview on 7 April 2010 that, when he went to 7 Scott Street on the night of 26 February 2010, he saw 'a car burning on the street' in the vicinity of Ms Paget's house, the appellant repudiated this statement at the interview on 9 April 2010. At trial, defence counsel conceded that the appellant had told a deliberate lie about Mr Borsa's burning vehicle (as he undoubtedly did).
Sixthly, as to the component of the second alleged lie, and the third alleged lie, which comprise the appellant's statements at the interviews on 7 and 9 April 2010 that he went to 7 Scott Street on the night of 26 February 2010 'after 10 o'clock', the appellant gave a different version, towards the end of the interview on 9 April 2010, as to the timing of his last visit to 7 Scott Street on the night in question.
This different version as to timing is readily apparent from the appellant's interaction with Detective Senior Constable Leslie, and his responses to Detective Senior Sergeant Fyfe's summary of what the appellant had told them about his movements on the late afternoon and during the evening of 26 February 2010. See [51] ‑ [52] above.
The prosecutor submitted, in her closing address, that at the 9 April 2010 interview the appellant retracted the lie he had told on 7 April 2010 about seeing the burning car, but he continued during the 9 April 2010 interview to maintain that he arrived at 7 Scott Street after 10.00 pm on the last occasion, 'until he mucked up and said he'd gone straight there from the deli' (ts 1702 ‑ 1703).
Defence counsel admitted, in her closing address, that the appellant had told a deliberate lie at the 7 April 2010 interview about the burning car and that he had told this lie to 'put [himself] at the house [at 7 Scott Street] after the car is already on fire', so that '[he] can't have killed them' and to 'try and help him not be accused of these crimes' (ts 1772). However, she submitted that the appellant did not tell lies in relation to the timing of his last visit to 7 Scott Street on the night in question. According to defence counsel, the appellant's version towards the end of the interview on 9 April 2010, to the effect that he departed from the Hazelmere Deli at about 9.00 pm and travelled directly to 7 Scott Street, was unreliable. She asserted that the unreliability was attributable to the police talking 'for him' and talking 'over him' and then paraphrasing (ts 1769). According to defence counsel, the appellant's earlier version of his movements was reliable because it was given when the appellant had the opportunity 'to talk' for himself (ts 1769).
The trial judge told the jury, in his summing up, that the State's case was that the appellant had lied to the police about the time he went to 7 Scott Street on the night of 26 February 2010 (ts 1830). His Honour reminded the jury that the appellant had given different accounts to the police as to where he was on the night in question, whether he had gone to 7 Scott Street that night, how often he had gone there on that night, and the time or times at which he had gone there (ts 1830).
His Honour told the jury that the appellant's interviews with the police were a 'major area of evidence' (ts 1910), that the DVDs of those interviews were the primary evidence, that the jury would have equipment in the jury room to enable it to watch the DVDs (the DVDs having already been played to the jury when they were tendered by the prosecutor), and that the transcripts of the interviews were merely an aid (ts 1910).
The trial judge explained to the jury how it might approach the task of assessing the evidence, including the credibility and reliability of the witnesses. This would have been understood by the jury as applying to assessing the appellant's statements during the interviews, including his conflicting and inconsistent accounts and his credibility and reliability.
His Honour instructed the jury as to the relevance of other lies told by the appellant which went only to his credit. His Honour said that these other lies 'can be relevant in assessing the credibility of [the appellant] in regards to the answers that he gave to the police' (ts 1836). The jury would have understood this statement to apply to the alleged lies as to timing. His Honour elaborated:
If you think that [the appellant] has told other lies, then that might be a matter that you take into account in assessing whether you can believe other things that he said; that is, do those other lies cause you to place less weight on or reject what he says to the police regarding his lack of involvement? Well, as regards his denial of responsibility; that is, in those police interviews, that's before you as evidence along with everything else (ts 1836).
Seventhly, a finding that the second statement (that is, seeing the car burning) was a deliberate lie did not depend upon an acceptance that the third statement (as to timing) was a deliberate lie. As I have mentioned, during the third part of the 9 April 2010 interview the appellant repudiated his earlier statement about the burning car. Also, defence counsel conceded in her closing address that the appellant had told a deliberate lie about Mr Borsa's burning vehicle.
Eighthly, there is no doubt, in these circumstances, that the jury would have understood that a decision on whether the appellant's alleged lies as to timing were deliberate lies required the jury to make an assessment of the content of those alleged lies, and the appellant's credibility and reliability, in the context of:
(a)the appellant's conflicting and inconsistent accounts in relation to timing, as revealed by the DVDs of his interviews with the police; and
(b)other lies told by the appellant (that is, the other Edwards lies, which defence counsel conceded were deliberate lies, and the alleged lies which went only to his credit).
Ninthly, it is of some significance that defence counsel, Ms LB Black, did not seek any additional direction or redirection from the trial judge in relation to the alleged lies, despite raising other issues with his Honour in the course of his summing up (ts 1859 ‑ 1864, 1888 ‑ 1893, 1928). See Sayed v The Queen [2012] WASCA 17 [76] (Buss JA, Martin CJ & Hall J agreeing); R v Wright [1999] VSCA 145; [1999] 3 VR 355 [2] (Phillips CJ & Charles JA). Ms Black is an experienced criminal defence lawyer. She has been a prosecutor as well as a defence counsel.

Ground 1: its merits: other reasons than a consciousness of guilt why the appellant may have lied and the defence case concerning those reasons

In my opinion, there is no merit in the appellant's complaint that:
(a)the trial judge failed to identify any other reasons than a consciousness of guilt why the appellant may have lied; and
(b)his Honour failed adequately to put to the jury the defence case concerning those reasons.
I will deal first with the appellant's complaint that the trial judge failed to identify any other reasons than a consciousness of guilt why the appellant may have lied.
It is true that his Honour did not, except in the course of summarising the defence case, identify any other reasons than a consciousness of guilt why the appellant may have lied. However, there is no reasonable possibility that this omission may have affected the verdict of guilty and there is no reasonable possibility that, as a result of the omission, the jury may have misused the appellant's alleged lies so as to make a finding of guilt by impermissible reasoning. No miscarriage of justice occurred. I have arrived at these conclusions for the following reasons.
First, as I have mentioned, defence counsel told the jury, in her opening address, that after the jury watched the video/audio records of interview they would form the view that the appellant was 'a big liar' and that he had 'lied his heart out' to the police (ts 76).
Similarly, as I have mentioned, defence counsel told the jury, in her closing address, that the appellant, by failing to tell the truth initially, had dug himself into 'a deeper and deeper hole' and during the 9 April 2010 interview he 'can't tell the truth anymore because he's told too many lies' (ts 1754 ‑ 1755).
Further, as I have mentioned, defence counsel conceded that the first alleged lie was a deliberate lie and that the component of the second alleged lie to the effect that the appellant had seen a car burning on the street in the vicinity of Ms Paget's house was also a deliberate lie.
Defence counsel submitted that merely because the appellant had told these and other lies did not mean that he had killed Mr Borsa and Ms Paget.
Secondly, the appellant explained at the 7 April 2010 interview that he had not 'come forward before' because he was scared, he was scared 'because [he did not] want to end up like [his] friends did', and he did not want to be falsely accused of murder (VROI 3).
Thirdly, defence counsel submitted, in her opening address, that the appellant had 'very good reasons to not want to tell the truth' despite the fact that he did not kill Mr Borsa and Ms Paget; the jury should remember that the appellant was 'at the time of these offences, a drug addict' and that at the time of the offences the appellant was 'all over the place' (ts 76).
Defence counsel submitted, in her closing address, that the appellant's reluctance, at least initially, to tell the truth to the police lay in his disgraceful behaviour after he found Mr Borsa dead or dying. She also submitted, in essence, that the appellant told the first alleged lie and the component of the second alleged lie relating to the burning car because he thought that the police would falsely accuse him of the murders and the 'best thing to do' would be to put himself 'at the house after the car [was] already on fire' so as 'to try and help him not be accused of these crimes' (ts 1772).
Fourthly, the trial judge reminded the jury, in the course of his Edwards direction, that people lie to the police on occasions for other reasons than that they were involved in the crime (ts 1835) and that it was necessary for the jury to consider whether there was 'any other possible explanation' for the appellant having told the alleged lies (ts 1835).
His Honour instructed the jury that it could not use the alleged lies as evidence of the appellant's guilt unless, relevantly, there was 'no reason reasonably open that he would have lied about those things than that he was involved' in the killings (ts 1835).
Fifthly, this was not a case where the accused had not given an explanation for an alleged Edwards lie, and defence counsel had not sought to deal with the alleged lie, on a basis consistent with innocence. Indeed, in the present case, the appellant and defence counsel had advanced other reasons than a consciousness of guilt for the alleged lies. It would have been inappropriate for his Honour to suggest different exculpatory reasons for the telling of the alleged lies. Any such suggestion would have had the potential to undermine the strength of the reasons consistently and strenuously put forward by defence counsel on the appellant's behalf. See R v Jeffrey (1991) 60 A Crim R 384, 398 (Cox J, Wright & Crawford JJ agreeing); Civello v The State of Western Australia [No 2] [2008] WASCA 163 [41] (Steytler P, Wheeler & Miller JJA agreeing).
Sixthly, his Honour, at various points in his summing up, referred to all of the reasons advanced by defence counsel for the appellant having lied to the police (ts 1870, 1919 ‑ 1921).
Seventhly, there is no doubt, in these circumstances, that the jury would have understood that defence counsel gave and relied upon specific explanations as to why the appellant may have lied and that these explanations were consistent with innocence. Also, there is no doubt that the jury would have understood that it could not use the alleged lies as evidence of the appellant's guilt unless, relevantly, it was satisfied that the lies were told out of a consciousness of guilt (that is, the appellant knew that the truth would implicate him in the offences) and that there was not 'any other possible explanation' for the telling of the lies (ts 1835).
Eighthly, as I have mentioned, it is of some significance that experienced defence counsel did not seek any additional direction or redirection from the trial judge in relation to the alleged lies, despite raising other issues with his Honour in the course of his summing up.
I turn now to the appellant's complaint that the trial judge failed adequately to put to the jury the defence case concerning other reasons than a consciousness of guilt why the appellant may have lied.
There is no merit in this complaint.
I am satisfied, based on my reading of the summing up, that his Honour fairly and accurately put the defence case to the jury, including the defence case concerning other reasons than a consciousness of guilt why the appellant may have lied. See [92] above. Nothing further was required to avoid a perceptible risk of a miscarriage of justice.
Once again, experienced defence counsel did not request any additional direction or redirection on this point.

Ground 1: conclusion

Ground 1 fails.

Ground 2

I agree with Mazza JA, for the reasons he gives, that ground 2 fails.

Ground 3

Ground 3 must fail because neither ground 1 nor ground 2 has been made out.

Conclusion

I would dismiss the appeal.
MAZZA JA: This is an appeal against conviction.
On or about 26 February 2010, Stefan Borsa and Rebecca Paget (also known as Sidney Marcel De Beaux) were bludgeoned to death at Ms Paget's home situated at 7 Scott Street, Greenmount. The appellant was charged with their murder. He pleaded not guilty and was tried by Hall J and a jury. The crucial issue at trial was the identity of the killer. The case against the appellant was wholly circumstantial. On 2 December 2011, the appellant was convicted as charged.
There are three grounds of appeal. Ground 1 claims that the learned trial judge erred in his directions concerning three lies alleged to have been told by the appellant out of a consciousness of guilt in his interviews with the police. The second ground alleges that the learned trial judge failed to direct the jury that any assertions of fact or opinion made by police officers in their interview with the appellant on 9 April 2010 were not evidence of their truth or were irrelevant. The third ground alleges that the errors complained of in grounds 1 and 2, in combination, gave rise to a substantial miscarriage of justice.
Leave to appeal has been granted in respect of each ground.
I would uphold ground 1, allow the appeal and order that the appellant be retried.

Background

Mr Borsa and Ms Paget were drug dealers. Mr Borsa supplied Ms Paget with drugs and she would sell them, at least in part, to fuel her own addiction. The appellant was a drug user who obtained drugs from Ms Paget. Shortly before the victims were killed, the appellant began to sell drugs himself. On or about 22 February 2010, he had obtained a 'quart' (1/4 of an ounce or approximately 7 g) of heroin from Ms Paget with a view to selling it. At trial, the appellant's counsel adopted the label that the appellant was a 'wannabe' drug dealer.

It was common ground that on 26 February 2010 the appellant wanted to buy 1 ounce of heroin from Ms Paget. Ms Paget told the appellant that it would cost $11,000. Ms Paget intended to obtain the heroin from Mr Borsa who, in turn, obtained it from a man named Ioan Borbil. In SMS communications with Ms Paget on 26 February 2010, the appellant gave the impression that he had the money to pay for the heroin. In fact, he did not have the money at that time, although there was some prospect that his father (who had been duped as to the true purpose for the money) would provide him with sufficient money the following Tuesday. The appellant hoped to obtain the drug on 'tick' (credit).

At the end of his summary of the evidence, his Honour referred again to the police interviews. He said:
Now, the only other major area of evidence was the police interviews. And you have those. I've taken you to the last of them. You can not only read the transcripts which, as I said to you, were only really an aid to the primary evidence. You will have the original CDs of those interviews and you'll have equipment that enables you to watch them. And you should feel free to do so if you wish to. I've taken you to some parts of those. And as I said at the beginning [that] doesn't necessary mean it's the most important parts. You might think there are other parts that are important. And if that's your view then, of course, you should rely upon those other parts. The prosecution relies on some of them, on some lies being told and some of those as being lies told out of guilt. And I referred to that yesterday. There's no need, I think now to refer to the rest of those interviews in detail (ts 1910). (emphasis added)
His Honour then summarised the cases for the State and the appellant. He referred to Ms Black's arguments in respect of the appellant's lies to the police. He summarised those submissions in this way:
[Defence counsel] said that in regards to lies he told the police you should ask yourself why he might lie to them. And she suggested that the answer to that might be that he was reluctant to tell a story about going to buy drugs, having been to the house and found a body and having looked for drugs and money. She said that this was - to do so and then leave without alerting the authorities was disgraceful conduct even for a desperate junkie, but that that doesn't make him a killer. She said to you that it was difficult for [the appellant] to find out who did in fact do it. He was not able to summon the investigative resources of the police and that [the appellant] is merely the easiest answer because he was there and he lied about having been there initially to the police. She said in those circumstances it would seem that the police didn't bother to look for anyone else and that then they only looked for evidence which supported their theory that the killer was the accused. She said the problem with starting with the lies - the problem for the accused in starting with lies to the police is that when you start telling the truth no one believes you (ts 1919). (emphasis added)
Later, his Honour referred to defence counsel's submission as to why the appellant lied about the burning car. He summarised defence counsel's argument in this way:
As to the burning car, [defence counsel] said why might he lie about that? She said that at the time, Rebeca Hedgeland was scaring him and he put himself at the scene after the deaths not because he killed them but to protect himself from a police accusation which he felt was - what he knew was untrue (ts 1921). (emphasis added)

The law relating to lies allegedly told out of a consciousness of guilt

Ordinarily, the telling of a lie, that is a deliberate untruth, will merely affect the credit of the accused. However, in limited circumstances it may constitute evidence, usually as part of a circumstantial case, that is probative of guilt. This only occurs when it can be proved that the lie was told by the accused out of a consciousness of guilt. The use of the expression 'consciousness of guilt' has been criticised when used in a summing up. It is used in these reasons out of convenience. It means a lie told because the accused knew that the truth would implicate him or her in the offence or some aspect of it. The lies particularised in ground 1 were said by the prosecution to have been lies of this type.
The seminal case in this area is Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193, where the majority (Deane, Dawson and Gaudron JJ), in passages which are well known, said:
… not every lie told by an accused provides evidence probative of guilt. It is only if the accused is telling a lie because he perceives that the truth is inconsistent with his innocence that the telling of the lie may constitute evidence against him. In other words, in telling the lie the accused must be acting as if he were guilty. It must be a lie which an innocent person would not tell. That is why the lie must be deliberate. … And the lie must relate to a material issue because the telling of it must be explicable only on the basis that the truth would implicate the accused in the offence with which he is charged. It must be for that reason that he tells the lie. To say that the lie must spring from a realization or consciousness of guilt is really another way of saying the same thing. It is to say that the accused must be lying because he is conscious that 'if he tells the truth, the truth will convict him' (209).
At 210 ‑ 211, their Honours said:
A bare direction that consciousness of guilt is required does not provide sufficient guidance as to what matters indicate its presence. Unexplained, such a direction allows the jury to decide, in the light of all the evidence, that a lie was told with a consciousness of guilt and then to use that finding to corroborate some part of the evidence that led to the finding of a consciousness of guilt.
A lie can constitute an admission against interest only if it is concerned with some circumstance or event connected with the offence (i.e. it relates to a material issue) and if it was told by the accused in circumstances in which the explanation for the lie is that he knew that the truth would implicate him in the offence. Thus, in any case where a lie is relied upon to prove guilt, the lie should be precisely identified, as should the circumstances and events that are said to indicate that it constitutes an admission against interest. And the jury should be instructed that they may take the lie into account only if they are satisfied, having regard to those circumstances and events, that it reveals a knowledge of the offence or some aspect of it and that it was told because the accused knew that the truth of the matter about which he lied would implicate him in the offence … because of 'a realization of guilt and a fear of the truth'.
Moreover, the jury should be instructed that there may be reasons for the telling of a lie apart from the realization of guilt. A lie may be told out of panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the offence. The jury should be told that, if they accept that a reason of that kind is the explanation for the lie, they cannot regard it as an admission. It should be recognized that there is a risk that, if the jury are invited to consider a lie told by an accused, they will reason that he lied simply because he is guilty unless they are appropriately instructed with respect to these matters.
The principles set out in Edwards have been examined in many cases around Australia, including in this State. They were usefully analysed in this State in Martinez v The State of Western Australia [2007] WASCA 143; (2007) 172 A Crim R 389 [273] ‑ [285], and in Coates v The State of Western Australia [2009] WASCA 142 [151] ‑ 158].

When should an Edwards direction be given?

An Edwards direction should be given when the prosecution contends that a lie is evidence of guilt because it implicates the accused in the commission of the offence and where the lie in question is capable of bearing that character. It should also be given if there is a real risk that the lie will be understood in this way by the jury, or if there is a risk of confusion or doubt as to the way in which the prosecution puts its case: Zoneff v The Queen [2000] HCA 28; (2000) 200 CLR 234 [16] and [17]; and Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1 [34].

The content of an Edwards direction

Appellate courts have deliberately avoided setting rigid and prescriptive rules as to the precise terms of an Edwards direction: Zoneff v The Queen [15].
Where an Edwards direction is required, it must be effective and tailored to the circumstances of the case. By 'effective', I mean that it must have the effect of warning the jury against reasoning that merely because an accused lied, he is guilty, and it must instruct the jury that a lie can only be used as evidence of guilt in the limited circumstances described in Edwards: R v Konstandopoulos[1998] 4 VR 381; Behan v The Queen [2000] WASCA 204; (2000) 114 A Crim R 325 [19]. Therefore, where it is alleged that an accused has told a lie that is probative of his or her guilt and the judge is satisfied that it is capable of that effect, it will ordinarily be necessary for the trial judge to:
1.identify the lie and the circumstances relied upon by the prosecution to indicate that it constitutes an admission against interest;
2.tell the jury that it may take the lie into account only if satisfied, having regard to those circumstances and events, that the lie reveals the accused's knowledge of the offence charged or an aspect of it;
3.tell the jury that there may be reasons other than realisation of guilt why the accused told the lie; and
4.tell the jury that if it accepts that the lie was told for a reason other than realisation of guilt, it cannot regard the lie as an admission against interest.
Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316 [42] fn 83; and Nestorov v The Queen [1999] WASCA 303 [11].
Because of a trial judge's obligation to tailor his or her instructions to the jury to the circumstances of the case, where the telling of a lie is disputed or where an explanation is given for the telling of a lie, it is ordinarily the duty of the trial judge to direct the jury's attention specifically to these matters to ensure proper consideration of the accused's defence. Thus, the jury's attention should be drawn to the evidence relevant to this issue, including the evidence said to falsify the alleged lie and the defence case in respect of that evidence. Where innocent explanations are proffered for the telling of a lie, the trial judge should state what those explanations are. As to these propositions, see Behan [21], R v Nguyen [2001] VSCA 1; (2001) 118 A Crim R 479 [93]; R v Ciantar [2006] VSCA 263; (2006) 16 VR 26 [86]; Ellis v The Queen [2010] VSCA 302; (2010) 30 VR 428 [3] and Johnstone v The Queen [2011] VSCA 60; (2011) 31 VR 320 [68].

The parties' submissions

The appellant submitted that his Honour's Edwards direction was defective in two respects. First, his Honour failed to direct the jury that the defence disputed that the appellant lied when he told the police in the interviews on 7 and 9 April 2010 that he went to Ms Paget's around 10 pm to 10.30 pm. Specifically, the learned trial judge did not instruct the jury that the appellant did not accept that his exchange with Detective Leslie contradicted the accounts given by him in the interviews on 7 and 9 April 2010 about the time of his arrival. Second, it was said that his Honour failed to properly draw to the jury's attention the appellant's innocent explanations for the alleged Edwards lies.
The respondent submitted that when the summing up is read as a whole, his Honour's directions were not defective as alleged. The respondent pointed to his Honour's Edwards direction and emphasised that his Honour told the jury that before any alleged lie could be used as evidence of guilt, the jury had to be satisfied that it was a deliberate untruth (ts 1835 [206] of these reasons). Further, later in the summing up, his Honour made it clear to the jury that the question of when the appellant went to the house was disputed and was a matter it needed to consider. The respondent submitted that his Honour drew to the jury's attention the appellant's innocent explanations for the alleged lies. The respondent emphasised that the appellant's trial counsel did not take any exception to the summing up. Finally, if his Honour's directions were defective, the appellant has suffered no substantial miscarriage of justice and the proviso should be applied.

Merits of ground 1

His Honour's obligation to give an Edwards direction was accepted in this appeal. It was further accepted that his Honour gave an Edwards direction.
The real issue raised by ground 1 was whether the directions his Honour gave were tailored to the particular circumstances of the case so as to give the jury the proper guidance about what was required before it could use a lie as evidence of guilt.
In respect of the first lie, it was conceded that the appellant told a deliberate untruth about being at his parents' house on the evening of 26 February 2010. The sole issue for the jury was whether this lie was told only out of a consciousness of guilt.
In respect of the second and third alleged lies, it was not conceded that the appellant had lied when he said in the interviews on 7 and 9 April 2010 that he did not arrive at Ms Paget's until around 10 pm to 10.30 pm. The evidence the State relied upon to falsify these alleged lies was the exchange between Detective Leslie and the appellant in the interview of 9 April 2010 ([194] of these reasons). The appellant's case was that this exchange did not falsify the second and third lies. Whether the appellant lied about the time of his arrival was an issue for the jury. Further, even if the appellant lied, an issue remained as to whether each lie was told only out of a consciousness of guilt.
Consistently with his Honour's duty to tailor the Edwards direction to the circumstances of the case, he was obliged to clearly identify the issues the jury needed to address and decide before the lies could be used as evidence of guilt. With great respect to his Honour, this was not done. The directions that he gave in respect of whether the second and third lies were in fact lies were too general and, in relation to the reasons why the appellant lied, did not sufficiently describe the appellant's case.
I will deal first with his Honour's treatment of whether the second and third lies were, in fact, lies. In my opinion, particular care was required in respect of this issue. It was accepted that the appellant had told many lies and there were many inconsistencies in the three interviews the appellant had with the police. His Honour pointed this out to the jury in his summing up (ts 1830, [204] of these reasons, and ts 1870 [209] of these reasons). However, as to the important issue of the time of the appellant's arrival at Ms Paget's house, the appellant did not accept that he had lied. In my opinion, his Honour was required to make this clear to the jury. Unless this was done, there was a significant risk that the jury would think that there was no dispute, or no real dispute, on this issue.
The jury's resolution of this issue depended upon its view of the exchange between Detective Leslie and the appellant. As to this, it is far from clear that the appellant was, in effect, admitting that he had driven straight up from the Hazelmere deli to Ms Paget's house. Up to this part of the interview, the appellant had consistently stated that he had not arrived at Ms Paget's until around 10 pm to 10.30 pm. The exchange was focused on the route between the Hazelmere deli to Ms Paget's house. It was not focused on the timing of that journey and the appellant was not asked directly about it. It was not suggested at that point that his answers contradicted his earlier statements about where he had travelled after going to the Hazelmere deli and when he had arrived at Ms Paget's. Also of relevance were the arguments defence counsel put to the jury about the exchange.
I have considered his Honour's instruction given in the course of his Edwards direction after identifying the three lies:
But in regard to these lies, if, firstly you accept that they are lies, that is, untruths told deliberately to the police, then in what circumstances can you use them as evidence of guilt (ts 1835 [206] of these reasons).
The respondent submitted that this direction was sufficient to alert the jury to the need to decide that each alleged lie was, in fact a lie.
I do not accept this submission. In the circumstances of this case, the direction was insufficient. The direction did no more than inform the jury, generally that it was for it, as the finder of fact, to decide whether the appellant had told lies. Neither then nor later in the summing up did his Honour alert the jury to the particular issue of whether the appellant had lied about the time of his arrival at Ms Paget's house, nor was the jury's attention directed to the evidence said to falsify the second and third lies, namely the exchange with Detective Leslie and the appellant's case in respect of that evidence.
It is true that his Honour reminded the jury that the prosecution disputed the appellant's claims as to when he went to the house and said about this issue:
That might be a matter you need to consider in some detail (ts 1870 [209] of these reasons).
The respondent argued that this statement, when read with the Edwards direction, was sufficient to alert the jury to the appellant's case that he arrived at Ms Paget's at around 10 pm to 10.30 pm and that the issue was for it to consider and decide the truth of this claim.
There are two points to be made in answer to this submission. First, his Honour's statement was a comment as opposed to a direction of law given with the force of his office. Second, the statement was made in the context of the jury being directed as to the mixed nature of the appellant's interview on 9 April 2010, that is, that he said things that were both inculpatory and exculpatory, and the things said against interest may more likely be true: Mule v The Queen [2005] HCA 49; (2005) 79 ALJR 1573. The statement was not linked to his Honour's Edwards direction and, in my view, it would not have been understood by the jury as being relevant to that direction.
For these reasons, I have reached the conclusion that his Honour's Edwards direction was insufficient in all of the particular circumstances of this case.
I now turn to the contention that his Honour's directions as to the appellant's innocent explanations for lying did not comply with the requirements of a proper Edwards direction. The respondent accepted that the learned trial judge did not give 'a standard Edwards warning' (white AB 31), but nevertheless, it was said that, when the summing up is viewed as a whole, the direction was sufficient.
His Honour told the jury at the outset of his directions on lies, and in general terms, that the reasons why the appellant lied were in issue (ts 1830 [204] of these reasons). It is accepted that in the course of his Honour's Edwards direction, he told the jury that before a lie could be used as evidence of guilt it had to consider whether there was 'any other possible explanation for the lies'. Further, his Honour instructed the jury that 'people lie to the police for other reasons … than that they are involved in the crime' and that it must 'consider whether there's other possible reasons why [the appellant] might lie' (ts 1835 [206] of these reasons). However, unusually, his Honour did not, at this point, refer to any of the explanations offered on behalf of the appellant for the lies.
This is not fatal to the effectiveness of the direction if, later in the summing up, any innocent explanation is articulated and clearly linked to the Edwards direction so that a jury would understand that if any innocent explanation was accepted or could reasonably be accepted, the lie cannot be used as evidence of guilt. It is therefore necessary to consider what else his Honour said about the appellant's claimed innocent explanations for telling lies.
His Honour referred to two of the explanations, namely that the lies were told out of fear of being falsely implicated in the offences or because he was involved in drug dealing, when discussing, in general terms, the lies told by the appellant in the police interviews (ts 1870 [209] of these reasons).

Later, when he summarised the defence case, his Honour referred the jury to some of the arguments put by the appellant's counsel on the issue. His Honour referred to submissions that the appellant lied:
(a)because he might have been reluctant to tell a story about going to Ms Paget's house to buy drugs and then, upon finding Mr Borsa's body, behaving in a disgraceful way by looking for drugs and money and not alerting the authorities; and
(b)out of fear of being falsely implicated in Mr Borsa's death (ts 1919 [211] of these reasons and ts 1921 [212] of these reasons).
The respondent submitted that, when taken together, these references were a sufficient compliance with the requirements of Edwards. I do not accept this submission.
Having regard to the authorities I cited earlier, where innocent explanations for lies are proffered, a trial judge should refer to those explanations in such a way as to make it clear that they must be considered in the process of deciding whether a lie can be used as evidence of guilt.
His Honour's treatment of the innocent explanations at ts 1870 only referred to two of the explanations proffered on behalf of the appellant. More crucially, they were mentioned in the context of lies told generally by the appellant in his police interviews, and they were not linked to the Edwards direction.
The references to what was said in defence counsel's closing submissions were merely a summary of the arguments put on behalf of the appellant, bearing in mind, of course, that counsel's arguments are not binding upon the jury. His Honour's summary was not a direction of law given with the authority of his office requiring the jury to consider the reasons proffered by the appellant for the telling of lies when deciding whether they could be used as evidence of guilt.
Finally, I turn to the significance of defence counsel's failure to complain about his Honour's Edwards direction. The appellant was represented at trial by very experienced defence counsel. She took no exception to his Honour's directions.
The fact that no objection was taken is relevant to the question of whether the directions gave rise to any miscarriage of justice. The absence of objection may be taken as an indication that counsel, absorbed in the atmosphere of the trial, saw that no injustice or error occurred in what his Honour said or failed to say: R v Tripodina and Morabito (1988) 35 A Crim R 183, 191.
The absence of objection to a trial judge's directions is not fatal to reliance on an error if it occasions a miscarriage of justice, 'but there are reasons to pause before embracing that conclusion' (Murray v The Queen (2002) 211 CLR 193 [73]).
The lies alleged by the State to be evidence of guilt played an important part in the State's circumstantial case. His Honour's directions did not, in the particular circumstances of the case, sufficiently comply with the requirements of Edwards. There is no objectively discernible forensic reason why trial counsel did not seek a redirection. In my opinion, there has been a miscarriage of justice, despite defence counsel's failure to object to the summing up.
For all these reasons, ground 1 has been made out.
The respondent has raised the application of the proviso: s 30(4) of the Criminal Appeals Act 2004 (WA). I will deal with this after deciding grounds 2 and 3.

Ground 2

The appellant submitted that his Honour erred in his summing up by failing to direct the jury that any assertions of fact or expressions of opinion made by the interviewing officers in the appellant's police interview on 9 April 2010 were not evidence.
As the learned trial judge acknowledged in the pre‑trial ruling he gave on 1 November 2011, in the interview on 9 April 2010 Detective Fyfe adopted 'an insistent tone' and 'forcefully expresses the view that the appellant is lying': The State of Western Australia v Hedgeland [11] and [13]. His Honour said, in the course of the ruling, that he would direct the jury that the views of the interviewer were not relevant [13].
After the hearing of this appeal, and with the leave of the court, the appellant filed a lengthy schedule of statements made by Detective Fyfe which, if used by the jury as proof of their truth, would have been 'damaging' to the appellant. These were the subject of submissions in response.
It is unnecessary to repeat each and every statement contained in the schedule. I referred to some earlier in these reasons when I described in detail the interview of 9 April 2010. It is very clear that Detective Fyfe did not accept the appellant's statements that he went to Ms Paget's house around 10 pm or later (blue green AB 50, 58, 66, 67 and 175). At blue green AB 65, Detective Fyfe puts to the appellant that he had 'lied constantly [to the police] throughout this whole investigation'. At blue green AB 184 ‑ 185, Detective Fyfe expressed his opinion that the appellant went to Ms Paget's house wanting heroin and 'something's gone wrong, terribly, terribly wrong … and they've ended up dead'. Detective Fyfe asserted that it was the appellant who set fire to Mr Borsa's car. At blue green AB 185 ‑ 186 he said, 'I'm saying it was you … cos you knew where Stefan kept his heroin. He didn't bring it into the house' and 'it was you that lit the car fire. You can dance around it but it was you that lit the fire, wasn't it?' Finally, at blue green AB 191, Detective Fyfe said 'the fact is that you torched that car … I would just be curious as to know why you burnt the car'.
I accept that Detective Fyfe made statements of fact and expressed opinions to the effect that the appellant's account of events in that interview were untrue and that he was lying to the police.
The appellant does not contend that the interview of 9 April 2010 should have been excluded from evidence in whole or in part. Clearly, the appellant relied upon it as containing statements by him that were exculpatory.
Ground 2 alleges a deficiency in his Honour's summing up in respect of the interview. It is trite to say that unless adopted by an interviewee, any questions or statements made by an interviewer are inadmissible as evidence of their truth.
At ts 1823, his Honour directed the jury that they could only reach their verdict based on the evidence in the case. He explained that evidence:
is the witnesses who you have heard give evidence on oath and it is the exhibits, including the audio and visual recordings that you will receive.
Pausing there, the reference to audio and visual recordings includes the interviews between the police and the appellant which were conducted, as one would expect, in question and answer form. His Honour continued:
Witnesses' evidence is in the answers that they give. Now, sometimes during the course of evidence a proposition will be put to a witness in a question. That is, the questioner will say, "Well, I put it to you that such‑and‑such is the case". And you might be left with the impression that there is some evidence as to that. There may or may not be evidence; it depends on what witnesses have said on oath. So it doesn't matter what's in the questions. It matters what's in the evidence. And the evidence is what the witnesses say or is in the exhibits.
His Honour did not, as he foreshadowed in his ruling on 1 November 2011, specifically direct the jury that, in respect of the police interviews, any statements or opinions expressed by the interviewing officers were not evidence unless adopted by the appellant.
The learned trial judge directed the jury that what the appellant said in the videotaped records of interview was part of the evidence (ts 1825). In my opinion, when his Honour's summing up is read as a whole, it would have been clear enough to the jury that his Honour's direction was that the evidence, whether given by witnesses in court or by the appellant in his interviews, was in the answers and not in the questions.
Later, when his Honour was directing the jury as to the particular lies said to be evidence of guilt, his Honour emphasised that it was 'the answers given by [the appellant] to the police' that were relied upon by the prosecution (ts 1831).
In my opinion, there is no reasonable prospect that the jury would have thought that the questions and statements made by Detective Fyfe that were not adopted by the appellant were evidence in the case.
I accept the submission made on behalf of the respondent that, in any event, the statements made by Detective Fyfe to the effect that the appellant had lied or that he was a liar, would have little, if any, prejudicial effect given that the appellant's case was that he had lied repeatedly to the police.
Further, at no time in the respondent's closing address did it rely on any questions or statements made by Detective Fyfe that were not adopted by the appellant. Nothing said by his Honour was capable of being interpreted as suggesting to the jury that part of the evidence in the case came from the questions or expressions of opinion made by Detective Fyfe. Finally, it is relevant that the appellant's experienced trial counsel took no exception to his Honour's summing up on the point. Trial counsel was plainly aware of the nature of Detective Fyfe's questions. Indeed, she referred to it in the course of her closing address and sought to make some forensic mileage from it (ts 1769). The failure of defence counsel to seek a direction from the trial judge on this point strongly supports the contention that no direction was in fact required.
Ground 2 has not been made out and must be dismissed.

Ground 3 - Aggregation of errors

Ground 3 relies upon the combined effect of the errors said to have been established in grounds 1 and 2. The error alleged in ground 2 has not been established. Accordingly, there are no errors to be aggregated. This ground must fail.

The proviso

The only ground of appeal I would uphold is ground 1. The respondent has submitted that if the learned trial judge made any of the errors alleged in grounds 1 and 2, the appeal should nevertheless be dismissed because no substantial miscarriage of justice has occurred. The respondent submits that the evidence against the appellant was overwhelming.

Should the proviso be applied?

Section 30(3) of the Criminal Appeals Act states that this court must allow an appeal where, in its opinion, the conviction should be set aside because of a wrong decision on a question of law or where there has been a miscarriage of justice. Having upheld ground 1 there has been, in my opinion, both a wrong decision on a question of law and a miscarriage of justice.
Section 30(4) of the Criminal Appeals Act states:
Despite subsection (3), even if a ground of appeal might be decided in favour of the offender, the Court of Appeal may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred ['the proviso'].
The respondent has the onus of establishing that, despite any error, no substantial miscarriage of justice has occurred.
The leading case in respect of the proviso remains Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300. In that case, the High Court examined the proviso as it then applied in Victoria which was, in effect, indistinguishable from s 30(4) of the Criminal Appeals Act. This case was analysed in detail by Buss JA in Quaid v The Queen [2011] WASCA 141; (2011) 210 A Crim R 374 [215] ‑ [235]. I respectfully agree with his Honour's analysis. It is unnecessary for me to repeat it.
What emerges from Weiss are the following statements of principle:
1.Any consideration of the proviso is not to be undertaken by attempting to predict what a jury (whether the jury at trial or some hypothetical future jury) would or might do. The task is to decide whether a miscarriage of justice has occurred [35].
2.In performing this task, three things must not be obscured:
(a)the appellate court must decide itself whether a substantial miscarriage of justice has occurred;
(b)the task is an objective one to be performed with whatever are the advantages and disadvantages of deciding an appeal on the record of the trial; it is not an exercise in speculation or prediction; and
(c)the standard of proof of criminal guilt is beyond reasonable doubt [39].
3.The manner in which the task is to be undertaken is the same as when an appellate court is called upon to decide whether the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence. In other words, the appellate court must make its own independent assessment of the evidence and determine whether, making due allowance for the 'natural limitations' that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty [41].
I have undertaken a review of the trial record. The lies allegedly told by the appellant out of a consciousness of guilt were a significant part of the State's case against him. In particular, the second and third alleged lies concerned the important issue of when the appellant arrived at Ms Paget's house for the last time on the night of 26 February 2010 and if, when he arrived, Mr Borsa and Ms Paget had already been killed.
In my opinion, there was a reasonable, as opposed to a fanciful, possibility that the errors made in the summing up could have materially influenced or affected the jury's assessment of the admissible evidence, in particular the statements made by the appellant in his interviews on 7 and 9 April 2010 as to when he last went to Ms Paget's home. In these circumstances, it is not possible to give any weight to the jury's guilty verdict.
I have not been persuaded that no substantial miscarriage of justice has occurred in this case. The proviso should not be applied.

Conclusion and orders

I would uphold ground 1 of the appeal, but dismiss grounds 2 and 3. The proviso should not be invoked. A retrial should be ordered. I would make the following orders:
1.The appellant's appeal against conviction is allowed.
2.The conviction entered on 2 December 2011 is set aside.
3.The appellant is to be retried.