Johnstone v R

[2011] VSCA 60

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2008 0982
AARON JAMES JOHNSTONE	Applicant
v
THE QUEEN	Respondent

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JUDGES	NETTLE, NEAVE and TATE JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	17 February 2011
DATE OF JUDGMENT	9 March 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 60
JUDGMENT APPEALED FROM	[2008] VSC 584 (Coghlan J )

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CRIMINAL LAW – Conviction – Applicant found guilty of murder – Whether omission in applicant’s record of interview a deliberate lie – Whether omission ‘intractably neutral’ and improperly left as evidence of consciousness of guilt – R v Ciantar (2006) 16 VR 26, applied – Judge failed to properly identify lie in his directions – Ellis v The Queen [2010] VSCA 302, distinguished – Judge’s directions on consciousness of guilt not unbalanced – Whether prejudicial effect of evidence led to establish nature of relationship outweighed probative value – Verdict not unsafe and unsatisfactory – Application for leave granted, appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr C G Mandy	Victoria Legal Aid
For the Crown	Mr J D McArdle QC	Mr C Hyland, Solicitor for Public Prosecutions

NETTLE JA:

1. I have had the great advantage of reading in draft the reasons for judgment of Neave JA.

1. Like her Honour, I consider that the appeal should be allowed on Grounds 2(b) and 2(c), because the judge’s directions as to consciousness of guilt were apt to mislead the jury to treat the whole of the applicant’s record of interview as evidence of consciousness of guilt.

1. Much of the responsibility for that falls at the feet of the Crown.  This is one more case in a succession of many in which it has been necessary to order a re-trial because of the Crown’s failure to identify precisely each lie upon which it relies as evidence of consciousness of guilt and the acts facts and circumstances on which it relies as demonstrating that it was a lie and bespoke consciousness of guilt.

1. It is a problem, however, which might have been arrested.  Neave JA has set out the four step process articulated in Ciantar[1] by which lies evidencing consciousness of guilt may properly be identified and subjected to acceptable jury directions.  If that process had been followed in this case, the difficulties would likely have been avoided

   [1]R v Ciantar (2006) 16 VR 26, 51 [82]–[85]; see also Ellis v The Queen [2010] VSCA 302, [3]–[4].

1. Like Neave JA, I would reject Grounds 1 and 2(d) and 4, for the reasons which her Honour gives.  But, unlike her Honour, I would uphold Ground 3.

1. As will be seen, it is concerned with the admissibility of video clips of the applicant and the deceased frolicking together drunkenly while committing obscene acts with or in the presence of each other.  The judge admitted the video clips into evidence, over objection, as demonstrating the nature of the relationship between the applicant and the deceased. 

1. With respect, however, the aspect of the applicant’s…