Leaman v The Queen
[1988] TASSC 64
•9 December 1988
Serial No 63/1988
List “A”
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: Leaman v R [1988] TASSC 64; A63/1988
PARTIES: LEAMAN, Maxwell Keith
v
THE QUEEN
FILE NO/S: CCA 54/1987
DELIVERED ON: 9 December 1988
JUDGMENT OF: Neasey, Nettlefold and Underwood JJ
Judgment Number: A63/1988
Number of paragraphs: 34
Serial No 63/1988
List "A"
File No CCA 54/1987
MAXWELL KEITH LEAMAN v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL:
NEASEY J
NETTLEFOLD J
UNDERWOOD J
9 December 1988
ORDER OF THE COURT:
Appeal dismissed.
Serial No 63/1988
List "A"
File No CCA 54/1987
MAXWELL KEITH LEAMAN v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL:
NEASEY J
9 December 1988
This was the appellant's second trial. He was previously tried jointly with his wife, Gail Leaman, for the murder of his then de facto wife, Pauline Glover in 1969. The appellant was convicted of murder, and Gail Leaman of being an accessory after the fact. Gail Leaman received a short sentence of imprisonment on her conviction, but the appellant succeeded on appeal on the ground that he should have been granted a separate trial. He was tried again in May 1987, and convicted of murder. He has appealed on a number of grounds, several of which can be subsumed under the general ground that the verdict of the jury should be set aside as being unreasonable, or because it cannot be supported having regard to the evidence. It is also contended that there has been a miscarriage of justice, in that the learned trial judge failed to give the jury adequate and balanced directions in his summing up. I shall deal with those general grounds on that basis and in that order, and then pass to some grounds based on alleged errors in law made by the trial judge in summing up.
The prosecution case fell into two parts. Apparently it was not known until after the trial began whether Gail Leaman was prepared to give evidence against her husband, the appellant. The Crown therefore intended to present the case as one based on circumstantial evidence alone. However, Gail Leaman did give evidence for the prosecution; so in the event the Crown case was based on her evidence, plus the circumstantial case. In summary, the facts were these. In May 1969, the appellant, then aged about 30, was living in a house in Swanston Street, New Town, with Pauline Glover (who was the mother of several of his children) and Gail Leaman (then Tatnell). He had been living for several years with Mrs Glover, but had recently formed a relationship with Gail, who was then aged 18 years. A short time before, believing Gail when she said that he was the father of a child she was expecting, he had lived with her and some of the children for a period in Launceston. They then returned to the Swanston Street house where the three, and the children, were living together. In late May 1969, both the appellant and Gail Tatnell made written statements to the police to the effect that Pauline Glover had disappeared during the evening of 23 May 1969, and had not been seen since. After that, the appellant and Gail lived together, became the parents of children, and were married in 1975.
The evidence–in–chief of Gail Leaman was brief. She said that in the week after she returned to Hobart with the appellant and the children, the appellant hired a car, saying that they would use it to go to a drive–in theatre that evening. During the afternoon, the appellant and Pauline were quarrelling. During the early evening, Gail left the house for some purpose, when the appellant and Pauline in the car stopped alongside her in the street and said that they would take her to her parents' place on the eastern shore. She entered the car. The appellant was driving. They went to a place some miles outside Hobart on the eastern shore called Clifton Bluff. Gail knew that none of her relations lived in that area. They drove to a sandy place near the top of the bluff and parked the car. The appellant alighted, opened the back passenger door, "and got a piece of wood or something and started hitting Pauline" who was in the middle of the front seat. Pauline slumped over and the appellant got her out of the car and took her behind some pine trees and dropped her in a hole which was about four feet deep. Gail Leaman then described how the appellant, trying to get Pauline to go down in the hole, began hitting her with a shovel. The witness had not seen the shovel until then. She heard a moan from Pauline. (It was suggested in cross–examination that such a noise might have come from the body after death). The appellant covered Pauline with dirt, filling up the hole. They left and returned to Swanston Street. It was common ground that, thereafter, Gail Leaman continued to live with the appellant, and did so for approximately 17 years before, finally, she informed the police as to what had happened.
Gail Leaman was cross–examined at length about many features of her conduct and of her life with the appellant, and the like, but was not challenged to any material extent about her account of what she said happened at the burial site. In the course of cross–examination, she admitted telling out of court many lies about relevant matters, giving the detailed and circumstantial false account about the disappearance of Pauline Glover, and of having changed her story several times about the actual circumstances surrounding her death. She admitted that when she telephoned the police on 18 January 1986 it was after a period during which she had been quarrelling with her husband about a number of matters, including the fact that she suspected he was having an affair with the wife of a friend of theirs. She herself had been having an affair over the last three years or so, she had contemplated suicide more than once, and, all in all, had been going through a period of high emotion for some considerable time before giving her evidence.
The wife of the friend with whom Gail Leaman believed the appellant had been having an affair was called "Di". Mrs Leaman admitted in cross–examination that in going to the police and giving them what she claimed was the true account concerning the death of Pauline Glover she had been motivated by four reasons, or reasons which had included these four – that Di had called her a liar, that she believed the appellant was having an affair with Di and wanted to hurt her, that she thought the appellant was going to leave her, and because she was scared of him. Most of all, she said, she was terrified of the appellant, but nevertheless she maintained that her evidence was true. She admitted in cross–examination that during the period when the appellant was in gaol awaiting the first trial she had written him numerous letters, and in some of them had stated that her accusations to the police about him were a fantasy, and that his story to the police that Pauline Glover had committed suicide and that they had then buried the body was true. It must have been obvious to the jury, therefore, that Gail Leaman as a witness was replete with weaknesses and imperfections. One of the arguments for the appellant was that his Honour did not sufficiently remind the jury about various admissions made by Gail Leaman during her evidence, but I should have thought that the jury would not have needed much reminding from the trial judge about those matters during summing up, particularly as this followed upon what his Honour described as two fine addresses to the jury by counsel on either side, in which all relevant material was fully canvassed. In the end, the jury was entitled after taking into account all her imperfections as a witness to believe her in relation to the main burden of her evidence.
The circumstantial case upon which the Crown relied was centred about the allegedly incredible suicide story which the appellant had told the police when he was interviewed by them a week or so after Gail Leaman had seen them, and they had investigated her information and discovered Pauline Glover's skeleton where she said it was buried. This suicide account was repeated by the appellant in his unsworn statement made at the trial. The police evidence was that when they interviewed the appellant on 25 January 1986, they told him that they had found the skeletal remains of a person whom they believed to be Pauline Glover. The appellant asked where they had found her, and they said at Clifton Bluff. The accused said, "It couldn't be, it was in the papers that she was last seen walking on the road down Sorell way". A little later, at the police station, they warned the appellant and after some preliminaries he said he would tell them what had happened.
He then said that at the time Pauline had died, he had gone to a shop from the Swanston Street house, and on returning found Pauline hanging from a piece of wood which was upside down in a man–hole in the passage. There was a chair alongside her which was still moving when he entered, he said, indicating presumably that it had just been knocked or fallen over. He told Gail that he would ring the police, but instead on her suggestion he and Gail took the body to Carlton Bluff where with Gail's help he buried it. Part of his reason for doing so was that he was afraid that if the suicide story came out, Gail's father and brothers would give him a hiding.
When asked by the detective where he was when he first saw Pauline hanging, the appellant had replied, "We came back from the shop and I opened the front door and she was hanging there. The chair was just moving, so it couldn't have been that long, and that's in my statement." (By "my statement", he meant a written statement which he had, for whatever reason, sent to Di some time before being interviewed by the police). The detective asked him whether he checked to see if she was alive, and he replied "I honestly believed she was dead". Later on he told the police that he had been badly beaten up by Gail's father and brothers some time before the occasion when he found Pauline hanging, and that he was afraid they would do that again. When he was told that an examination of the body had revealed a number of fractures to the arm and to the jaw, he had said that as he had thought that she was dead they (he and Gail) had not been careful with the body, but in the course of dragging or carrying it to the car on his shoulder he had dropped it three times. He denied that he had hit Pauline with the shovel.
The appellant had then taken part in a record of interview, which he signed. He there repeated in greater detail the substance of the story he had already told the police. In this account, he said that there were five children at home when he found that Pauline had suicided, suggesting without saying so that they were all in bed at the time. At the trial, the appellant made an unsworn statement in which he repeated very briefly the suicide story, and added a good deal of material about his relationship with Gail Leaman, the Butlers, and the like.
One of the appellant's primary arguments was that the circumstantial case by itself was not strong enough to warrant conviction, and since the trial judge left it to the jury as being so, the trial was invalidated on that ground alone. I agree that the trial would be fundamentally flawed if the circumstantial case was not of its own force sufficient to warrant a verdict of guilty; or, to put it another way, if this court is of the view that on the circumstantial case alone the jury should have been left in a state of reasonable doubt. The jury could not have regarded Gail Leaman as a liar in relation to the main substance of her story, or otherwise they could not have accepted the circumstantial case. But they could have decided that she was not a credible witness and that they should treat her evidence as neutral. The reason is that the verdict of guilty leaves it uncertain whether the jury believed Gail Leaman's evidence or not. The verdict of guilty could have been based upon the circumstantial case alone.
However, the circumstantial case was in my view amply sufficient to warrant a verdict of guilty. The following were the principal components of it. The strongest element was the high improbability of the suicide story, given the fact that the appellant admitted having buried the body. First, it was open to the jury to take the view that the ordinary patterns of human conduct would have made it highly improbable that he would bury the body and invent the lying account of Pauline having gone missing, if she had committed suicide. The appellant had much to gain and little to lose by reporting the suicide of the deceased in the ordinary way if it had occurred. Next, circumstances existed which could be seen as providing a strong motivation to the appellant at the time to get rid of the deceased, given the fact that he admitted burying the body. There were two, and possibly three factors involved in this. The strongest was the liaison he had formed with 18–year–old Gail Tatnell. His domestic circumstances, poor in financial and emotional terms as they were, had been very much complicated by her presence. He had been told, and claimed to believe, that he was the father of the child she was expecting. He was obviously much attracted to her. She was about 12 years younger than he, and his de facto wife some 10 years older. Secondly, his relationship with the deceased had been for some time unsatisfactory in a number of ways. She had been ill and had recently been in hospital for a hysterectomy. He had taken Gail to live with him for some weeks in Launceston, and she was still living with him. The three were living together in the small house at Swanston Street at the time of the alleged suicide. The possible third factor was that he claimed afterwards to the police that he had taken Gail and some of the children to Launceston because he was afraid of the attitude to her and to him of her aggressive father and brothers, who had already beaten him up once. There may have been truth in this allegation, and if there was it might have formed part of a desire to set his relationship with Gail upon a footing which would be more likely to satisfy her family. If Pauline in fact committed suicide the jury might have expected the appellant to see it as a ready if drastic solution to his problems, rather than an event he would go to great lengths to keep hidden.
Next, the jury might have thought wholly inadequate the appellant's explanations to the police as to why he had not revealed the suicide but had instead buried the body. To the police he said that Gail suggested, "Let's get rid of her" and he agreed. He said, "I just panicked. I was scared. .... It was her idea. I said, we will phone the police, and she said, no no no, we will get rid of her. I am not trying to blame her for anything. I am as guilty as she is, getting rid of the body, that's all, that's all. Her father and brothers would have given me another hiding." The jury might also have thought that the girl would have had less reason than he to make such a suggestion and then help to carry it out, rather than reveal the suicide.
Then, there was a good deal of evidence inconsistent with the suicide account. The appellant showed the jury a place in the passage in the house where he said the suicide had occurred, but there was no man–hole there. The only man–hole was in one of the rooms. Though there were arguably reasons why the deceased might have committed suicide, which of course the appellant's counsel put to us, there was a considerable amount of evidence including medical which tended to show that she was not suicidal in temperament, and had arrangements on foot which would apparently have made suicide unlikely. There were the six children in the small house. Though said to be in bed, any one of them could have appeared at any moment. The appellant's account of the details of the alleged suicide and his retrieval of the body may well have been unpersuasive to the jury. It might have been thought that if his account was genuine he would have made some positive efforts to revive the deceased, especially as in one of his accounts he said that the overturned chair was still moving, indicating that the act had just been done. He said he truly believed she was dead, but all he did to check this was to put his hand in front of her mouth to see if there was any indication of breathing. There was the fortuitous presence of an available vehicle on that day; the prompt selection of a burial site, and the swift carrying out of an intention formed (he claimed) almost immediately upon discovery of the body. Then there was the contrived detail of the admittedly lying story about the deceased having disappeared.
There was also another important factor telling against suicide and towards proof of murder. That was the nature of the injuries of which evidence was found on the skeleton. The relevant testimony was given by an experienced pathologist, and though he felt bound to admit that he could not eliminate the possibility of suicide by hanging, his opinion strongly favoured violent blows delivered at about the time of death.
Overall, I would have thought the circumstantial case against the accused tending to prove murder was substantially more cogent than that in, for example, Plomp v The Queen (1963) 110 CLR 234, strong though it was in that case. The learned trial judge gave the jury ample warning as to the necessity of acquitting the appellant unless they could be satisfied that his having murdered the deceased as charged was the only rational inference which they could draw from the evidence, upon the assumption that they put aside Gail Leaman's testimony as being not credible – cf Peacock v The King (1911) 13 CLR 619; Plomp v The Queen (supra) . In my respectful opinion his Honour was entirely correct in his approach to the circumstantial aspect of the case, and his directions to the jury thereon.
However, as the case went to the jury, it is unlikely that they gave no weight to the evidence of Gail Leaman. Even if they put her evidence aside until they had considered the circumstantial case, they must if they followed the trial judge's directions have decided that the proper verdict on that basis was one of guilty. In that event, it is unlikely that, having made that decision, they would not then have been prepared to give substantial credence to her evidence. Again, it is possible that they believed Gail Leaman and convicted on the basis of her evidence, being satisfied that there was corroboration of' it; or they may have believed her evidence and decided that the circumstantial case was strong also. Some of the jury, of course, may have taken one path, and some another. On whatever basis, there was ample evidence for conviction.
I pass to consider the specific criticisms of the summing up. It was argued that the trial judge failed "properly to put the defence case to the jury". In particulars given of this ground, it was complained that he "failed to remind the jury in detail of the important matters arising out of the cross–examination of Lorrain Gail Leaman", and "dealt far too briefly . . . with the defence case". None of these arguments is sustainable. Burbury CJ said in this Court in Frost v The Queen [1969] Tas SR 172, at 174 – 175, that:
" … it is necessary to say once again that a trial judge's duty to 'put the defence' does not extend to putting to the jury all the defence evidence and all the contentions advanced by the defence. When it is said that a trial judge has failed properly to 'put the defence' it is necessary immediately to enquire whether the accused has raised some positive defence (such as an alibi, mistake or self–defence) or whether the 'defence' is essentially no more than a challenge to the Crown evidence. In the former case no doubt the trial judge must put the substance of the positive defence as a distinct part of his summing–up. In the latter case he will discharge his duty by referring as he deals with the substance of the Crown case to the substance of the defence evidence and to such contentions advanced by the defence as he thinks proper. He may take the course of summarising the main points made by the defence in a separate part of his summing–up. So long as he has fairly reminded the jury as he goes along of the substance of the defence evidence (if any) and of the main grounds of challenge to the Crown evidence, he need do no more."
Chambers J agreed with his Honour's judgment. The learned trial judge's summing up in the present case in my view complied with those requirements. The summing up overall was lucid and balanced, and appropriate to the way in which the case had gone and to the evidence which the jury had before them. There was a positive "defence", in that, although the appellant did not give evidence on oath, he repeated in an unsworn statement the version of events which he had given on more than one occasion in the past; but the trial judge repeated to the jury much of the substance of this statement.
The principal complaint by the appellant which remains to be considered is the proposition that his Honour should have reminded the jury of more of the cross–examination of the appellant's wife, in which it was said that significant admissions of various kinds were obtained from her, than he did. It is true that although the judge made some references to important parts of that cross–examination, he did not attempt to address himself to the greater part of it. He told the jury that he did not intend doing so, but that nevertheless it was important for them to assess how she had reacted to cross–examination as a useful way of judging her credibility. As observed earlier, comparatively little cross–examination was directed to the crucial part of this witness' account of the manner of the deceased's death. In fact Mrs Leaman made many admissions during cross–examination of matters discreditable to her, and her readiness to make such admissions may have strengthened her credibility with the jury. It seems to me there was little point in the trial judge referring to much of this detail during his summing up, particularly as the basic facts of Mrs Leaman's extraordinary situation must have been sharply etched in the minds of the jury when they were assessing her evidence. Those aspects of her life and conduct did not need much elaboration from the trial judge, but his Honour did remind the jury of the more important matters which should cause them to exercise caution in judging her as a witness. The grounds relating to this aspect of the summing up are not sustained.
It was further contended that the trial judge made errors of law in directing the jury as to corroboration. This argument is framed in the notice of appeal as part of the general miscarriage ground, but it is convenient to deal with it as if it were a separate ground alleging error of law. The trial judge gave an unexceptionable general direction as to corroboration in respect of the evidence of Gail Leaman, and this aspect is not criticised. However, in dealing with evidence in the case capable of amounting to corroboration, his Honour gave three main instances, and two of these are criticised as involving errors.
The three instances mentioned were, first, the evidence of the pathologist, Dr Cummings, as to the injuries to the skeleton of the deceased; second, the false account given by the appellant to the police in 1969 about the disappearance of the deceased; and third, the appellant's suicide account, if the jury were satisfied that this was a deliberate lie and that it was told for the purpose of concealing guilt. The second instance was not attacked by the appellant, but the first and third were.
The complaint about the direction concerning the pathology evidence as corroboration was made upon the sole basis that although it may have been capable of corroborating the proposition that the deceased was killed rather than that she committed suicide, it was not capable of supporting the proposition that she was killed by the appellant. There is no substance in this argument. If the pathology evidence was capable of corroborating the proposition that the deceased was killed by external violence, which it was, then it was cogent also, in the light of the appellant's suicide account, to show that he must have been the perpetrator. In my opinion the whole of the direction about injuries to the skeleton being capable of constituting corroboration was correct. Notwithstanding that the absence of the hyoid bone from the skeleton prevented the pathologist from giving a more definite opinion as to the possibility of death having been caused by hanging, and prevented him from denying that death by that means was a possibility, his evidence of the injuries and his opinion as to the probable cause clearly favoured the proposition that the injuries had been received at or about the time of death and indicated death caused by intentionally inflicted violence.
The principal attack, however, was made upon the trial judge's direction as to the suicide account being capable of constituting corroboration if the jury were satisfied it was a deliberately false account told out of a consciousness of and for the purpose of concealing guilt. His Honour's direction was as follows:
"Now, the second area which is capable in law of amounting to corroboration, but which it is a fact for you to determine whether or not it does corroborate her, is the fact, if you find it to be a fact, that the accused lied to the police in 1969 about his wife's – de facto wife's disappearance – that is also capable of corroborating Mrs Leaman if, and only if, you consider that he lied to the police out of a sense of guilt to cover up a killing at Clifton Bluff, then that could amount to corroboration. There doesn't seem to be much dispute that he did tell a lie there, but you would have to be satisfied not only that he told a lie, but that he did it out of a sense of guilt and anxiety to cover up the killing at Clifton Bluff. So you would have to be satisfied that it was the concoction of a guilty man and not just a lie told in a state of panic or through fear of repercussions perhaps from the authorities, perhaps that they mightn't believe him, might think that he had caused some harm to his wife, or perhaps through fear of repercussions from Mrs Glover's family, or Mrs Leaman's – Gail Tatnell's family, as she was then. You would have to be satisfied that it was a concoction of a guilty mind, a mind that was anxious to ensure that that body wasn't discovered and wasn't examined soon after death, when perhaps more things could have been observed about the body than can be detected when the body has been in the ground for some 17 years. Now that is capable of amounting to corroboration if you are satisfied (a) it is a lie and (b) it was the product of a guilty mind.
And thirdly, the evidence of his version of Pauline hanging herself would be capable of amounting to corroboration if, and only if, you were satisfied that it too was a deliberate lie and secondly, that it was a lie made to conceal guilt. Again there have been many submissions to you about this, but in essence the Crown is saying that suicide is a lie. Pauline had no reason to commit suicide, the Crown urges upon you She wasn't the suicidal type. They remind you of Dr. Watson's assessment of her. She loved the quite numerous children that she had, some of whom had a special need of care from her.
So they say to you – why should she have chosen that very night, the one night when they had a hire car – her husband had a hire car, to take her life? Why should she do it in the circumstances that existed that night, where her children, although they had gone to bed, might easily want to get up to go to the lavatory or get a glass of water and might come in and see her hanging from the rafter, or the manhole? Why should she do it in her winter overcoat? Why, if the only manhole in the house is in the bedroom to the right of the passage, which in those days, you've been told, was the loungeroom – why, if she did it there, did the accused claim to the police that he saw her swinging in the passage? You will recall the answer to question 32 in the record of interview, and couldn't remember if it was in the first or the second part of the passage. And why did he claim at the house that the manhole in question was in the kitchen, when the rest of the evidence would suggest that there was never any manhole in the kitchen? And most importantly the Crown says to you – why should he conceal it at all? Why shouldn't he have gone to the police and said: 'Look there's a terrible thing happened. My de facto wife of ten years has taken her life and we've just cut her down and laid her on the bed in the bedroom. Would you please get a doctor?' or something like that. Why should he not do that? Why should he go to the trouble of concocting this great story about her disappearance and go to the trouble of carting her dead body off to Clifton Bluff, 20 miles or so away from the city, burying her down there?
Well these are matters for you, ladies and gentlemen. You have got to consider this. If you found that this suicide story is a concoction and was made up, not in panic or fear of repercussions, but was made up to conceal his guilt in respect of her death, then you could treat that as corroborative evidence of Mrs Leaman."
Counsel's submission about this direction concerning the suicide account was that even if it was a lie, the lie was not capable of constituting corroboration. The appellant relied mainly upon Reg v Lucas (Ruth) [1981] 1 QB 720; 73 Cr App R 159. In that case the Court of Appeal laid down four criteria to be satisfied before lies told out of court can amount to corroboration. Their Lordships said:
"To be capable of amounting to corroboration the lie told out of court must first of all be deliberate. Secondly it must relate to a material issue. Thirdly the motive for the lie must be a realisation of guilt and a fear of the truth. The jury should in appropriate cases be reminded that people sometimes lie, for example, in an attempt to bolster up a just cause, or out of shame or out of a wish to conceal disgraceful behaviour from their family. Fourthly the statement must be clearly shown to be a lie by evidence other than that of the accomplice who is to be corroborated, that is to say by admission or by evidence from an independent witness."
Appellant's counsel relied upon the simplistic argument that because no admission had been made that the suicide story was a lie, and there was no specific witness or witnesses who gave evidence from which it could be concluded that it was, then the fourth criterion was not satisfied and there was no material capable of constituting corroboration.
I do not think the Court of Appeal in Lucas' case meant to be exhaustive when they exemplified the fourth rule by reference to admissions and to evidence from an independent witness. The court only meant to state the usual means by which such independent evidence is given. The fourth rule itself is the important matter. The statement must be clearly shown to be a lie by evidence independent of that of the accomplice to be corroborated. The fourth rule was so understood in Buck v R [1983] WAR 372, where Burt CJ said, at 377 – ".... the lie must be established as such by evidence independent of the witness to be corroborated or by an admission made by the accused." In West 79 Cr App R 45, at 47, it was said that the statement must be proved to be a lie by evidence independent of the person to be corroborated, but such evidence may appear by a variety of means. In the present case, there were witnesses who gave evidence as to arrangements made by the deceased which seemed inconsistent with a plan to suicide, there was medical evidence as to a non–suicidal disposition of the deceased, the pathologist's evidence as to the injuries, and others circumstances tending to disprove the occurrence of suicide; such as admissional evidence from the appellant as to the availability of the motor car, the burial of the body, and so forth. In addition, there were the factors arising out of ordinary human behaviour patterns, referred to earlier, which indicated the inherent improbability of the appellant having decided to bury the body and conceal the death if it was suicide. I see no reason why inherent improbability should not be taken into account as part of the independent evidence tending to show that the suicide story was a lie. That it may be is supported by the eminent academic lawyer, Professor J D Heydon, in his article (cited in Lucas' case), "Can Lies Corroborate?", (1973) 89 LQR 552, at 556.
It has long been a commonplace of evidentiary law that leaving to a jury's consideration as potential corroboration alleged lies told out of court by an accused person requires close consideration by the trial judge and a careful direction. The difficulty for the trial judge lies in deciding whether the evidence would justify a conclusion by the jury that a particular alleged lie was told from a consciousness of guilt and a desire to avoid detection, rather than from any of the many other reasons which might motivate a lie. The four criteria laid down by Lucas' case, properly understood, are with respect a very useful guide. So also is the passage from the judgment of Burbury CJ in this court in Lonergan v R [1963] Tas SR 158 at 160. His Honour's judgment, with which the other members of the court agreed, was cited with approval by Professor Heydon at 563 in the article above cited. The passage from Lonergan's case reads:
" … a lie of itself is negative and a direction is required as to any lies which the trial judge considers capable of affording independent proof of the affirmative of the issue. He need not of course refer to all the alleged lies told by the accused in court and out of it. A convenient course would be to tell the jury that lies they may think have been told by the accused affect his credit and may lead them to reject his story but that sometimes it may be possible to draw an inference from a false statement or false denial made by the accused about a material incriminatory feature of the case that the accused was in fact implicated in the crime. He should explain to them that it is for him to direct them as a matter of law which false statements or denials so qualify as corroborative evidence and direct them specifically as to any such false statements or denials which in his opinion do so qualify. He should carefully warn them that they must not use any other lies they think the accused may have told as corroborative evidence. As most false statements or denials may also be explicable upon some hypothesis other than the accused's implication in the crime, the judge would do well to point to other explanations and the danger of giving too much weight to a lie."
See also R v Toia [1982] 1 NZLR 555 at 559, per Cooke J, speaking for the Court of Appeal.
Judged upon the basis of these guidelines, the learned trial judge's direction on corroboration in respect of all three aspects of the evidence was correct, careful and complete. There is no doubt that there was ample evidence independent of the witness to be corroborated, Gail Leaman, which would have justified the jury in concluding that the suicide story was a lying account, motivated by consciousness of guilt on the part of the appellant. The reasons for that, and the evidence justifying it, were canvassed earlier herein in relation to the strength of the circumstantial case. They apply equally in relation to the corroborative aspect. Evidence of lies told out of court may in appropriate circumstances be effective in both ways – cf R v Toia (supra) per Cooke J at 559, where his Honour, speaking for the court, said that of the two main ways in which lies by an accused may be important, "first, occasionally they are capable of adding something to the Crown case, whether as corroboration or simply as strengthening evidence". The court could have added, "or as both". In the present case, depending on how the jury saw the evidence, the suicide story as a lying account was capable of operating powerfully both as corroboration and as part of the circumstantial case against the appellant. There was no misdirection in respect of corroboration.
The only other aspect of the appeal which requires mention is that there is an application to call fresh evidence, said to be unavailable at the trial. This application could not possibly succeed. When this trial began, Gail Leaman was still in prison as a result of her conviction in the first trial as an accessory after the fact, but she was awaiting an imminent hearing by the Parole Board on her application for parole. Reference was made to this fact during her cross–examination at the trial. It was suggested to her then, in substance, that she might have been influenced to give evidence against her husband in hope that it would assist her to be paroled. She was asked whether her parole hearing was not set for the following day. She replied that it had been put forward a week. She was cross–examined about when in the past week or so she had been seen by police officers or a Crown Law officer, and when she expected to be released if not given parole. Appellant's counsel referred in his final address to the possibility of this witness having an expectation that her evidence might assist her prospects of getting parole, even though it could not be suggested that the Parole Board would be influenced by whether she gave evidence or not. The "new evidence" now is merely that Gail Leaman was in fact paroled on 22 May 1987. It was suggested in the ground of appeal by which this application was made that she was paroled "ahead of her eligible time", but that suggestion was abandoned as having no basis in law. Senior counsel for the appellant in effect admitted that all he would wish to do if the application were granted would be to cross–examine Gail Leaman further about whether her expectation of parole influenced her giving of evidence. One of the requirements for the grant of a new trial based upon fresh evidence was restated by Barwick CJ in Ratten v The Queen (1974) 131 CLR 510, at 520, in the following terms:
"But if there is fresh evidence which in the court's view is properly capable of acceptance and likely to be accepted by a jury, and which is so cogent in the opinion of the court that, being believed, it is likely to produce a different verdict, a new trial will be ordered as remedy for the miscarriage which has occurred because of the absence at the trial of the fresh evidence."
See also, Craig v The King (1933) 49 CLR 429; Lawless v The Queen (1978 – 79) 142 CLR 659; Askeland v The Queen, CCA, 5983. Judged upon this standard, it is clear that this application for a new trial is an unwarranted trespass upon the court's time.
The appeal should be dismissed.
List "A"
File No CCA 54/1987
LEAMAN v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL:
NETTLEFOLD J
9 December 1988
I have read the reasons for judgment prepared by Neasey J I agree with them.
List "A"
File No CA 54/1987
MAXWELL KEITH LEAMAN v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
UNDERWOOD J
9 December 1988
I have had the advantage of reading the reasons for judgment prepared by Neasey J and agree with them and the orders he proposes.
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