Leyshon v The State of Western Australia

[2006] WASCA 132

LEYSHON -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 132

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2006] WASCA 132
Court:	THE COURT OF APPEAL (WA)
Case No:	CACR:52/2005	Heard:	2 JUNE 2006
Coram:	MARTIN CJ STEYTLER P WHEELER JA	Delivered:	30/06/06
No of pages:	22	Judgment Part:	1 of 1
Result:	Appeal upheld Conviction quashed Retrial ordered
Category:	B
PDF Version

Parties:	JONATHAN LEWIS LEYSHON THE STATE OF WESTERN AUSTRALIA
Catchwords:	Appeal Criminal law Liberato direction Duty to sum up
Legislation:	Nil
Case References:	Edwards v The Queen (1993) 178 CLR 193 Latham v The Queen [2000] WASCA 57 Liberato v The Queen (1985) 159 CLR 507 Middleton v The Queen [2000] WASCA 200; (2000) 114 A Crim R 141 Miles v The Queen [2000] WASCA 364 Mule v The Queen [2005] HCA 49; (2005) 79 ALJR 1573 Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1 Ali Ali (1981) 6 A Crim R 161 Chamberlain v The Queen (No 2) (1984) 153 CLR 521 Galea v The Queen (1989) 1 WAR 450 Shepherd v The Queen (No 5) (1990) 170 CLR 573

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : LEYSHON -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 132 CORAM : MARTIN CJ

STEYTLER P
WHEELER JA

HEARD : 2 JUNE 2006 DELIVERED : 30 JUNE 2006 FILE NO/S : CACR 52 of 2005

CACR 53 of 2005

BETWEEN : JONATHAN LEWIS LEYSHON

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : MURRAY J

File No : INS 125 of 2004

Catchwords:

Appeal - Criminal law - Liberato direction - Duty to sum up

(Page 2)

Legislation:

Nil

Result:

Appeal upheld

Conviction quashed
Retrial ordered

Category: B

Representation:

Counsel:

Appellant : Mr R D Young
Respondent : Mr D Dempster

Solicitors:

Appellant : Gunning Young
Respondent : State Director of Public Prosecutions

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

Edwards v The Queen (1993) 178 CLR 193
Latham v The Queen [2000] WASCA 57
Liberato v The Queen (1985) 159 CLR 507
Middleton v The Queen [2000] WASCA 200; (2000) 114 A Crim R 141
Miles v The Queen [2000] WASCA 364
Mule v The Queen [2005] HCA 49; (2005) 79 ALJR 1573
Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1

Case(s) also cited:

Ali Ali (1981) 6 A Crim R 161
Chamberlain v The Queen (No 2) (1984) 153 CLR 521
Galea v The Queen (1989) 1 WAR 450
Shepherd v The Queen (No 5) (1990) 170 CLR 573

(Page 3)

1 MARTIN CJ: In my opinion, this appeal must be allowed for the reasons given by Wheeler JA, which I have had the advantage of reading in draft and with which I agree. I will, however, add a few observations of my own to those reasons.

2 The evidence at trial established beyond any reasonable doubt that the appellant killed the deceased by strangling her with a cord taken from a bathrobe which was hanging on a hook on the back of a door near where the accused and the deceased were engaged in a struggle. The substantive question for the determination of the jury was whether the appellant had the intention of killing the deceased at the time he applied the cord to her neck. It follows that the precise circumstances in which he obtained and applied the cord to the neck of the deceased were of central significance to the issues which the jury was called upon to determine.

3 That issue was addressed in the questions posed to the appellant on the video record of interview which was played to the jury. The relevant portion of that interview is as follows:

"Q. When you were - - you were talking before about when you went and grabbed the belt from the, um, bathrobe - -

A. Yeah.

Q. - - was she struggling or biting or kicking or punching you at that stage?

A. Yeah. Yeah, struggling.

Q. How much was she struggling?

A. Um, you know, she's kept, like, elbowing me and stuff, like that.

Q. This is while you were kneeling beside her?

A. Um, no, as - - as I was, like, on her back kind of thing. Yeah.

Q. When did you actually grab the belt though? You told me a minute ago you grabbed it when you were kneeling beside her and then you wrapped it around and then you got on top of her and tied it.

(Page 4)

A. Well, it may have been when I was on her back. I can't - -

Q. … (indistinct) …

A. - - really remember exactly. Can't remember exactly.

Q. Do you agree she couldn't be struggling too much if you were able to - - to, um, take your hands off her to get the, uh - - the cord out of the bathrobe - -

A. Um - -

Q. - - do you know what I mean?

A. Well - - yeah, yeah, I know what you mean. I did it, like, one-handedly, yeah.

Q. So you had one hand on her and one hand pulled the - -

A. Yeah.

Q. - - cord out?

A. Yeah.

Q. Can you pull that cord out easily with one hand?

A. Yeah, this one pulls straight out - -

Q. Yeah.

A. - - like - - yeah.

Q. Did the, uh, robe fall off the door or anything?

A. No, it was on a hook. Yeah.

Q. It didn't come off?

A. No."

4 The evidence of the appellant in chief on this subject was as follows:

"What occurred when you were on the ground?---Basically we were both fighting at each other. I remember getting up, trying to, like, kneeling up and being bitten on the leg. I don't know -

(Page 5)

like, I remember - I was punching her. She punched me. She was grabbing at my hair. I went to kneel up like that. I had my leg bitten and at that time I just reached out and there was a dressing-gown cord, a dressing-gown.

So where was the dressing-gown?---Immediately to my right.

Where was it in relation to the door? We've got a photo of it?---Yeah; it was hanging on the back of the door - yeah.

Do you know where the dressing-gown cord was in relation to the dressing-gown?---I believe it was wrapped around it.

You've told us that you grabbed hold of the dressing-gown cord?---Yeah.

What position were you in when you did that?---I was kind of kneeling, kneeling down next to the door.

Where was Dianne at that stage?---She was kneeling sort of adjacent to me.

What did you do with the dressing-gown cord?---At that time - when I grabbed the cord it just came out and I just wrapped - I wrapped it around her neck.

Do you know how many times?---I think I wrapped it around twice.

Okay?---Yeah. To the best of my memory I remember just - I, like, tied a bow and just walked, just walked, just left straightaway, just walked out of the house.

When you tied the bow how did you tie the bow?---Just the way you would tie your shoe.

All right. Did you do anything with the cord that was around her neck?---During the course of tying it, like, I pulled it and then tied the knot, and then just walked out, just walked.

What was your intention when you did that?---Just to scare her, like, to scare her off. I mean, we were having quite a vicious fight, you know. I just wanted to sort of - yeah, just give her a scare basically, you know.

(Page 6)

When you left what did you understand her situation was?---When I left there I believed she was alive.

…

Can I just for a moment take you back to the fight? You've told us that you put the bathroom robe belt round her neck to scare her. What were you - during the course of the fight up until that fight what were you thinking towards her?---I wasn't thinking anything towards her, I don't know, other than - like, we were embroiled in a fight at that time. I didn't have any particular feelings. I don't know."

5 During cross-examination, it was put to the appellant that he was able to remove the cord from the bathrobe without difficulty because by that time the deceased was unable to resist, and indeed was unconscious. Although the appellant's answers were at points equivocal, in general he maintained the line that he had reached for the robe in the course of a heated struggle which he tried to bring to an end by scaring the deceased. That much is apparent from the following passage from the cross-examination of the appellant:

"What you were worried [about] was the thing around her neck, wasn't it?---Not in particular, no. I was worried about the whole thing.

You took hold of the bathrobe tie, you took that out of the gown?---Yeah, I grabbed that. Yep.

When you did that Dianne wasn't in a position to resist, was she?---I can't recall exactly.

Well, by that stage she wasn't fighting back, was she?---There was a – I can't say no for certain, yeah.

She was on the ground, wasn't she?---Yeah, we were both on the ground. Yep.

No. She was on the ground, you got the bathrobe tie?---Yeah, I was also on the ground.

Then you tied it round twice. Is that right? Her neck?---Yep.

But after you tied it once you put a knot in it?---That's incorrect, no.

(Page 7)

You remember we've heard from John Sinclair?---Yeah, I remember that.

About there being more than knot [sic]?---Yep.

And he told us underneath was a double knot. Do you remember that knot?---That's simply not true. No.

You seem to remember there wasn't a second knot?---I remember the knot that I did as I left, as I walked off, which was to me a bow.

You put the tie around her neck so you could pull on it, didn't you?---Like I said before, I was trying to - I was just trying to scare her, you know?

You were trying to strangle her, weren't you?---I was trying to - I was trying to give her a fright, I was trying to scare her.

You told the police you were trying to strangle her and you told us earlier that you were trying to strangle her?---Well, yeah, that was - it wasn't my intention to strangle her, you know, for any amount of time, I just wanted to scare her.

You put the rope - the tie around her neck and you pulled it tight?---Yeah.

And that's because you were trying to strangle her?---It's because I was just trying to give her a fright, trying to scare her.

It was tight, wasn't it?---Yeah, I think [it] was. Yes.

Do you remember John Sinclair told us that he had difficulty getting the knot out and he couldn't get his fingertips under the tie?---I remember that, yeah.

It was as tight as that, wasn't it?---I don't know.

You pulled it tight so she couldn't breath [sic]?---No, it wasn't my intention. No.

But that's what you do. Do you agree?---Yeah, that's what's happened, yeah.

And that's what you were trying to do. You were trying to strangle her?---No, I wasn't trying to strangle her; no, no.

(Page 8)

Mr Leyshon, what do you say you were trying to do?---I was trying to - it was during a heated fight. We'd both been fighting and I just wanted to, like, scare her, you know.

Did you ask her if she was scared afterwards?---I just walked off. As soon as I did that I walked off.

Because it was finished?---I don't know. I don't know.

What, you wrapped the tie around her neck. You tied it tight, you pulled on it. You kept the pressure on it?---Not for any considerable amount of time, no, that I remember.

Dianne by that stage was unconscious, wasn't she?---I don't know. I don't know that for sure, no.

Didn't you tell the police that?---Yeah, I believe I did but I couldn't tell for sure.

Or was it just that you'd finished things off and it was time to leave?---No, that wasn't the case; no."

6 In the light of this evidentiary material, a significant issue which the jury was required to determine was whether it accepted the version of events given by the appellant during his record of interview and on oath, which was generally to the effect that he reached for the cord in the course of a heated struggle with the deceased and for the purpose of subduing that struggle or whether, as the State alleged, he only reached for the cord after he had brought the deceased to a state of complete submission, perhaps unconsciousness. The latter version of events is obviously significantly more consistent with the formation by the appellant of an intention to kill the deceased at the time he reached for the cord with which he strangled her.

7 It was in this context that the direction given by the trial Judge with respect to the removal of the cord from the bathrobe and which has been set out in Wheeler JA's reasons for decision assumed a particular significance. I agree with her Honour that there is an apparent tension or inconsistency between the assertion that "The bathrobe appears clearly not to have come away. It would have required two hands" and the statement which immediately followed, namely, "Could he do it with one hand while he was holding her while she was still struggling? If it required two hands was it something that could be done while he was kneeling? If she was struggling could he do it without causing the bathrobe to fall?"

(Page 9)

8 I have given anxious consideration to the question of whether the direction, when viewed as a whole, sufficiently left to the jury the determination of whether the cord could have been removed from the bathrobe in the manner described by the appellant in his video interview. I have concluded that the emphatic assertion that removal of the cord from the bathrobe would have required two hands was likely to have caused the jury to consider that as two hands were required for removal of the cord, the appellant's version of those important events was implausible. I am reinforced in that conclusion by the complaint made by counsel for the appellant to the trial Judge following the retirement of the jury and which has been set out by Wheeler JA.

9 However, as Wheeler JA has pointed out, there was simply no evidence to sustain the assertion that removal of the cord from the bathrobe would have required two hands. It is impossible, therefore, to avoid the conclusion that the direction to the effect that two hands would have been required, and which was unsupported by any evidence, deprived the appellant of the jury's full and fair consideration of his version of the critical events.

10 No submission was put to us by the State to the effect that we should apply the proviso and uphold the conviction on the ground that there has been no substantial miscarriage of justice nor, in the circumstances I have described, would such a submission have been appropriate.

11 It follows that in my view the appeal must be allowed, the appellant's conviction quashed, and a retrial ordered.

12 STEYTLER P: I have had the advantage of reading the judgment of Wheeler JA. I agree with her, for the reasons that she has given, that the appeal should be allowed, that the appellant's conviction should be quashed and that a retrial should be ordered. I wish only to add a few comments with respect to the making of a so-called "Liberato direction" (see Liberato v The Queen (1985) 159 CLR 507).

13 In my opinion, in a case in which there is a substantial or significant conflict between the evidence of defence and prosecution witnesses, it must be made plain to the jury that, if they do not believe the defence evidence and prefer that given by the prosecution witnesses, they should not convict unless persuaded of guilt beyond reasonable doubt by the evidence they do accept. It is important, also, that in such a case the jury should understand that evidence that is neither positively accepted nor positively disbelieved might give rise to a reasonable doubt. There is no

(Page 10)

particular form of words that must be used and these propositions might become obvious to the jury from the way in which the trial Judge directs them as regards the onus and standard of proof (as happened in this case). However, it is the responsibility of every trial Judge, in a case of the kind to which I have referred, to ensure that these propositions are understood by the jury.

14 WHEELER JA: This is an appeal against conviction and sentence. I am of the view that the appeal against conviction must succeed, and it is therefore unnecessary to deal with the appeal in relation to sentence.

15 The grounds of appeal in relation to the conviction are, to a large extent, concerned not with questions of general principle, but with the particular wording of aspects of the direction given to the jury in this case. Because each trial follows a slightly different course, and each Judge directs in different terms (and the same Judge will direct in different terms in different cases), no useful purpose would be served by dealing with the detail of all of the grounds of appeal. I propose therefore to make such observations in relation to matters of principle arising from the grounds as may be useful in relation to any retrial of this matter, and to deal with aspects of the grounds concerned with the particular direction in this case only to the extent necessary to explain my conclusion that the appeal must be allowed.

The trial - evidence

16 The facts out of which the appeal arises are broadly as follows. The appellant and the deceased met each other in 2001. They lived together for a short period in 2002, and in early 2002 the deceased gave birth to their child, Kayde. During the course of the relationship, each was involved in the taking of drugs and the relationship was marred by conflict. In 2003, the parties separated. In August 2003, the deceased took out a restraining order against the appellant. In October 2003, the appellant undertook a residential drug rehabilitation programme, remaining there until January 2004. During that time, the appellant and the deceased had contact by telephone, and after that date they had contact both by telephone and when the appellant visited the deceased's house in order to have access to the child, Kayde.

17 The appellant said that after he had left the rehabilitation centre, he obtained employment with a friend, Mr Breen. On 15 January, the appellant was advised by Breen that the deceased had telephoned him and advised him that the appellant was again using drugs. The appellant denied using drugs.

(Page 11)

18 On 19 January, the appellant had been working for Mr Breen, but the work did not last long and the appellant, with Mr Breen and two other employees, including Mr Brazier, went to a hotel and commenced drinking at about 9 am. They continued drinking during the course of the morning. The appellant argued with Mr Breen about the conversation that Mr Breen had had with the deceased regarding the drug use. The appellant became angry, kicking over a bucket and punching a wall. When he left his employer and workmates, he said words to Mr Brazier to the effect that he would see Mr Brazier again "in another 8 years".

19 The appellant then walked to the deceased's house in order, he said, to discuss with her what she had said to Mr Breen. The deceased and the child, Kayde, were there, Kayde being in the lounge area watching TV. The appellant and the deceased went to the deceased's bedroom, where they had an argument of some kind and, according to the appellant, the deceased started punching him. There was certainly evidence which indicated that the deceased had scratched the appellant and pulled his hair, although whether that was offensively, as the appellant asserted, or defensively, was a matter for the jury to consider. There was evidence that the deceased's body contained amphetamines which drug, the forensic pathologist said, could make a person behave aggressively. The deceased sustained multiple bruises.

20 During the fight, the deceased and the appellant were on the floor near the bedroom door. The appellant said that the deceased bit him on the leg. It was not in dispute that he had taken the terry towelling belt from a terry towelling dressing-gown which was hanging on the back of the door, wound the belt around her neck, and tied it. In his videotaped record of interview, he described taking the belt and tying it in the following way. Having said that she was "like, elbowing me and stuff", as he was "on her back kind of thing" he said he could not remember exactly how he had taken and wrapped the dressing-gown cord, but he said that "I did it, like, one-handedly, yeah", apparently referring to taking the cord out of the dressing-gown, which was hanging on the back of the door. When asked whether he could pull the cord out easily with one hand, he said, "Yeah, this one pulls straight out." He agreed that the dressing-gown did not come off the door, where it was hanging on a hook. In his evidence-in-chief, he said the following:

"Basically we were both fighting at each other. I remember getting up, trying to, like, kneeling up and being bitten on the leg. I don't know - like, I remember - I was punching her. She punched me. She was grabbing at my hair. I went to kneel up

(Page 12)

like that. I had my leg bitten and at that time I just reached out and there was a dressing-gown cord, a dressing-gown."

21 He described the dressing-gown as hanging on the back of the door and as to the position of the dressing-gown cord, he said, "I believe it was wrapped around it." When asked what he did with the dressing-gown cord, he said, "At that time - when I grabbed the cord it just came out and I just wrapped - I wrapped it around her neck." He said that he thought he wrapped it around twice and tied a bow "[j]ust the way you would tie your shoe". He said his intention in doing that was "[j]ust to scare her, like, to scare her off". He said that he did that because they were having a "vicious fight" (t/s 214 - 215).

22 He was not cross-examined about his manner of obtaining the dressing-gown cord. He was cross-examined about his intention in winding it around her neck, and about the way in which he had wound it around her neck. The most direct approach to the logistics of tying the cord around her neck appears in this passage of cross-examination (t/s 229)

"She was face down?---Yeah.

You had to make sure the belt went round her neck. You had to manoeuvre the belt around her neck?---Yeah, that was done as we were - we were sort of in, like, crouching.

You had to make sure the belt was drawn tight?---Yeah, I told you how.

Then you tied it tight in two knots so the pressure would be kept up?---No, I maintain it was a bow that I tied."

23 The appellant's evidence was that after leaving the deceased's house, he made a telephone call to the deceased's mother, and that he said to her, "Get around to Dianne's [the deceased's] now." He said he did so because he wanted to get someone to go over to the deceased's house, but that he did not go back there himself because he "just freaked out". The deceased's mother's evidence was to the effect that the appellant said to her, "I've just left there [the deceased's house] and there's something tied around her neck."

24 The first person to go to the deceased's house after the appellant had left was Mr Sinclair. He described finding the deceased with the cord wound about her neck. He said that there were two knots in the cord, the

(Page 13)

first being not too hard to undo. He undid that, but as he grabbed the cord to pull it away from the neck he realised that there was another knot there which was "done real tight". He described a form of double knot. He said that he was not able to get his fingertips underneath the tighter knot and that it took him some time to get it undone. It was clear to him at that time that the deceased was already dead. That description was obviously different from the description given by the appellant of simply winding the cord around the neck and tying a "bow", which would be relatively easy to undo.

25 Against that background, I turn to the grounds of appeal.

Direction concerning self-serving portions of video record of interview

26 Ground 1 is concerned with his Honour's direction to the jury in relation to the weight which they might place upon those portions of the video-recorded record of interview of the appellant which were exculpatory in relation to the question of intention. The direction was given prior to the delivery of judgment by the High Court in Mule v The Queen [2005] HCA 49; (2005) 79 ALJR 1573, which contains a number of observations on this topic. Those observations will no doubt be taken into account by any Judge directing a jury at a retrial.

27 It is true that, as the appellant's counsel points out, what distinguishes the present case from Mule's case is that the appellant gave evidence which was in similar terms to what he told the police in the video-recorded interview, while in Mule's case the appellant gave no evidence. I accept that, where an accused person gives evidence which is in similar terms to exculpatory portions of the video-recorded record of interview, then if the trial Judge decides to comment upon the weight which may be given to the exculpatory portions of the video, great care must be taken to ensure that the jury could not be left with the impression that they should discount any portion of the appellant's oral evidence by reason of its self-serving nature. Whether it is desirable to comment at all, and the form which such comment should take, however, are matters in relation to which it seems to me it is not possible to be prescriptive. It is not necessary to deal further with this ground of appeal.

Inference direction

28 It is submitted that his Honour erred in not directing the jury "adequately" in relation to the drawing of inferences. It is submitted that a direction of that kind was of particular importance, since it would be necessary for the jury in this case to draw an inference as to the appellant's

(Page 14)

intention. I have some reservations about whether the "customary" direction as to the drawing of inferences is as helpful as is popularly supposed, since in a number of recent cases I have heard argument about the precise terms in which the customary direction should be given, or exactly what it means. In the present case, his Honour took the view that defence counsel had, in making the submission which was very close in its terms to the customary direction, formulated it unfavourably to the appellant. However, that is an issue which it is not necessary to explore in the present case.

29 In the end, it became plain during the course of argument in this case that the only complaint which the appellant had concerning his Honour's direction was that it was not in precisely the customary terms. It was not suggested that there was any difference in meaning, or that the jury could have been in any doubt as to the way in which they were to approach the drawing of the inference of intent. I therefore do not deal with this ground.

His Honour's comments on the evidence

30 Ground 3 asserts that his Honour failed "to sum up or adequately sum up" the appellant's case, and six particulars are provided. The appellant has also been given leave to add a further ground, which asserts that his Honour "erred in his direction to the jury as to how to resolve material conflicts in the evidence between the appellant and the State witnesses Sinclair and [the deceased's mother] and in so doing this obscured the onus and standard of proof". Four particulars are given. Two of them set out what his Honour said at certain points and the other two are really submissions in relation to the effect of those selected directions.

31 These two grounds are prolix, repetitive and diffuse. It seems to me that they boil down to three assertions, which I would formulate in the following way. The first assertion is that his Honour failed to sum up in an appropriately detailed way that evidence which constituted the "defence case". In my view, the ground as formulated cannot succeed, but it does seem to me that his Honour has either misstated a critical portion of evidence, or invited the jury to speculate about it in an impermissible way. That is an issue which arose during the course of argument concerning this ground and is (very obliquely) raised by particular (d) of it. The additional ground has as its first limb a complaint that his Honour impermissibly invited the jury to speculate about why witnesses (including the appellant) might be lying. In my view, there is substance in

(Page 15)

this submission. The second limb is that his Honour should have given a "Liberato" direction. I do not accept this proposition.

32 I turn now to deal with the three propositions as I have formulated them.

Duty to "summarise the defence case"

33 No authority is cited for the proposition that a trial Judge is invariably required to "fairly summarise the prosecution and defence cases", although it is obvious that if a Judge does attempt to summarise the respective cases, he or she must do so fairly. I would repeat, in this connection, what I recently said in Pezzino v The State of Western Australia [2006] WASCA 131 at [26] - [28].

34 In any event, his Honour did in this case undertake the task of assisting the jury in analysing the evidence as it bore upon particular issues in the trial. In particular, his Honour considered it desirable to assist the jury in relation to those portions of the evidence which might bear on the question of intention. That was plainly a sensible decision, since intention was a central issue in the case, and an issue which could not be established by direct evidence, but only from an analysis of all the relevant evidence.

35 The complaint broadly is that his Honour referred to a number of matters which were not favourable to the defence, such as the remarks made by the appellant to Brazier, the evidence of Sinclair in relation to the knots in the dressing-gown cord, the evidence of the forensic pathologist relating to the deceased's injuries, and so on, but did not refer to certain matters which it is alleged supported the "appellant's case". However, the matters to which the appellant says his Honour should have referred are not matters, by and large, which go directly to the appellant's intention. They largely tend to support the proposition that at the time the appellant decided to go to the deceased's house, it was not, or may not have been, his intention to kill her. They also may support the proposition that the appellant did not begin the fight which ended with the death of the deceased.

36 However, the fact (if it be a fact) that the appellant did not start the fight, does not lead to any particular conclusion about what his intention may have been at the time at which he wound the dressing-gown cord around the deceased's neck. At most, those matters might tend to rebut an inference which might otherwise arise from the remark made to Brazier. As to that remark, however, his Honour had directed the jury that "if it has

(Page 16)

any probative value at all [it would be as referring to something the appellant intended to do]" and, in that connection, having already warned the jury against speculation in the opening portion of his remarks, his Honour said of the relevance of Brazier's evidence: "Isn't it a bit speculative?"

37 It may be that his Honour very reasonably took the view that the real question for the jury was that which revolved around the accuracy or otherwise of the evidence of Sinclair concerning the way in which the dressing-gown cord was wound around the deceased's neck. It would be unlikely that a jury which found that the cord had been wound around her neck, tied very tightly, and then tied again, would find that it had been wound and tied in that way with any intention other than that of causing death. It may be that his Honour took the view that the fairest course in the circumstances was to point out particular weaknesses in the prosecution case, rather than to attempt to balance that case with what was, in my view, an extremely weak "defence case".

38 Overall, it seems to me that his Honour's direction in relation to the question of intention, to the extent that his Honour chose to comment on the facts, was both a helpful and a balanced one. However, there is unfortunately one critical area in relation to which his Honour, in directing the jury, either erred as to the facts, or invited the jury to engage in impermissible speculation. Although that is but one flaw in what is otherwise an appropriate direction, it seems to me that the issue is of such a critical nature that the verdict must be set aside.

39 In order to understand that conclusion, I set out his Honour's direction in relation to this issue. His Honour said, at page 273 of the transcript, the following:

"The bathrobetie of course contains both her DNA material, which wouldn't be surprising in the circumstances, and his, in one aspect, but again there is no contest that it was the bathrobe tie that was used in the process of strangulation and that he handled it in the way that was described in the evidence. You have before you exhibit 11 which depicts where the robe was hanging after the event on the back of the door and indeed one can see when one takes a close look at the photograph some little spots which would appear to be blood just below that and were perhaps where the swabs were taken.

(Page 17)

One knows, you may think, that they were in close proximity to the door during at least the final stages of this struggle. You have had the accused's description as to how he got hold of the tie. The bathrobe appears clearly not to have come away. It would have required two hands. Could he do it with one hand while he was holding her while she was still struggling? If it required two hands was it something that could be done while he was kneeling? If she was struggling could he do it without causing the bathrobe to fall?"

40 There is some apparent inconsistency in what his Honour said at that point, which makes one wonder about the way in which it was said to the jury, and the aspects which his Honour emphasised. In particular, there seems to be an inconsistency between the apparent statement "it would have required two hands", and the following question, "Could he do it with one hand ... ?" There is no suggestion, however, that the transcript is inaccurate. The impression gained at a first reading of those passages is that his Honour was either suggesting that it would be a logical conclusion that the accused did require two hands to obtain the dressing-gown cord (thus, casting doubt upon his account of obtaining it with one hand while attempting to subdue a still struggling deceased), or at the very least was inviting the jury to speculate about those matters. That impression seems to have been shared by at least one of the counsel at the trial. Defence counsel said to his Honour (t/s 288 - 289):

" ... in relation to the dressing-gown behind the door, a matter which really wasn't the subject of any cross-examination of the accused to any extent, your Honour speculated that he might need to have two hands in order to remove the dressing-gown belt. Now, that's not a matter of course - it may be that the belt was through one loop rather than all the loops, you don't know."

41 At the heart of the defence case, weak though it appears to have been, was the proposition that the appellant placed the dressing-gown cord around the deceased's neck, while she was still struggling with him, in order to frighten her and to deter her from persisting with her attack upon him. If she was not still struggling, so that he had the use of two hands free in order to obtain the cord, any hope of persuading the jury to accept that view of the offence would have vanished. In raising the issue in the way he did, his Honour, in my view, either suggested to the jury, for a reason which was not the subject of evidence, that they should effectively reject the account given by the appellant, or he invited them to speculate upon matters which had not been put to the appellant during the course of
(Page 18)

cross-examination. In either case, it seems to me that his Honour was in error. It would have been open to his Honour to have made the comment which he did if those matters had been the subject of exploration during the course of evidence. However, it was not open to his Honour to raise that issue for the first time during the course of his summing up.

The "Liberato direction"

42 A substantial portion of the additional ground of appeal is concerned with the proposition that in a case where there is a significant conflict between the evidence of a prosecution witness and that of a defence witness, it is incumbent upon the trial Judge to give what is commonly called a "Liberato direction" (Liberato v The Queen (1985) 159 CLR 507).

43 There is no binding authority in relation to the requirement to give a Liberato direction. The matter was considered in some detail in this Court in the case of Miles v The Queen [2000] WASCA 364. In that case, Miller J at [47] said:

"The direction proposed by Brennan J in Liberato v The Queen has been accepted in this Court as a necessary direction in a case which turns on the conflict between the evidence of a prosecution witness and that of a defence witness."

44 Wallwork J in that case agreed with certain aspects of the reasons for judgment of Miller J. However, it was sufficient for Wallwork J's purposes to agree with the observations of Miller J about other aspects of the appeal. He was not required to, and did not, say anything concerning Miller J's observations about the Liberato direction.

45 By contrast, Murray J discussed the Liberato direction in the following terms:

"10 Liberato is certainly not a happy vehicle from which to distil any refinement of legal principle in respect of the directions to be given in a criminal case about the onus and standard of proof. The majority, Mason ACJ, Wilson and Dawson JJ, did not deal with any such issue. Their Honours confined themselves to the proposition, for which the case is authority, that the High Court is not to be regarded as a final Court of Criminal Appeal and it will not grant special leave to appeal in criminal cases unless some point of general importance is involved

(Page 19)

which, if wrongly decided, might interfere with the administration of criminal justice. It may be that in that regard later statements by the court would require that proposition, put broadly in those terms, to be qualified, but that is not to the point.

11 Brennan and Deane JJ, the other members of the court, would have granted special leave to appeal. Their Honours noted that in that case, on a number of occasions, the trial Judge in his directions to the jury had effectively reversed the onus of proof. Their Honours regarded that to be, as undoubtedly it is, an error of a fundamental kind effectively vitiating the trial process and preventing the application by a Court of Criminal Appeal of the proviso that, despite there being found a point which would cause an appeal to be allowed, the appeal will be dismissed if no substantial miscarriage of justice is thought to have occurred.

12 In discussing that question, Brennan J referred to the directions of the trial Judge which discussed the opposing stories of prosecution and defence witnesses and effectively invited the choice between the opposing stories rather than causing the jury to concentrate on the question whether the Crown had proved its case beyond reasonable doubt. In that context it was clearly important, as Brennan J remarked, that the jury should be directed that if they did not believe the defence evidence, but preferred to accept that given by witnesses favourable to the prosecution, they should not convict unless persuaded of guilt beyond reasonable doubt by the evidence they did accept. Further, if the jury did not positively disbelieve the evidence consistent with innocence, then although that evidence was not positively accepted, it might still give rise to a reasonable doubt.

13 In the judgment of Deane J, the error made by the trial Judge was embodied in the observations which effectively reversed the onus of proof. In the end his Honour concluded, at 519 - 520, that although it might well be the case that the orthodox directions given by the trial Judge in respect of the onus and burden of proof would have prevailed, the jury might have been confused

(Page 20)

into taking the view that their task was essentially one to choose between the evidence which supported a verdict of guilty and the evidence which was consistent with a verdict of not guilty.

14 In my opinion it is clear that Brennan J was not intending to lay down any particular addition of principle to the form of direction required in relation to the onus and standard of proof, but was seeking to make it clear that if the directions of the trial Judge included observations about conflicting evidence, care should be taken to avoid any observations which might compromise the clarity and effectiveness of the directions of law on the onus and standard of proof."

46 Having considered Liberato in that way, his Honour analysed the decisions in this Court, being Latham v The Queen [2000] WASCA 57 and Middleton v The Queen [2000] WASCA 200; (2000) 114 A Crim R 141, in which it was held that such a direction should have been given, and noted that in each case it had been conceded by the Crown, or found by the Court of Criminal Appeal, that the trial Judge had made positive errors in his directions about the onus and standard of proof which might have been cured by a direction along the lines proposed in Liberato.

47 In my respectful opinion, the analysis of Murray J is persuasive. It follows therefore that, in my view, there is no requirement that a Liberato direction be given in every case in which there is a substantial or significant conflict between the evidence of defence and prosecution witnesses, or even if the case turns, or appears to turn, on such a conflict. If the appeal depended upon this ground, in my view, it would fail.

Suggestions that some witnesses must be deliberately lying

48 When dealing with the evidence in relation to the tying of the dressing-gown cord around the deceased's neck, his Honour directed the jury that the versions of events given by the appellant and by Sinclair could not sit together (which appears to be plainly correct) and added "[n]ot only can they not sit together but the one that's wrong you may think is deliberately wrong" (t/s 268). Similarly, when dealing with the evidence of the appellant and the deceased's mother as to the telephone call made to her, his Honour stated that there was "very considerable conflict between the two versions" and added that they "are incapable of living together so perhaps one or other of them is mistaken or giving evidence which is deliberately untrue about that. If that was your view,

(Page 21)

you might ask yourselves why that was happening" (t/s 271). I accept that, as was submitted by counsel for the appellant, the additional suggestion about the jury asking "why" was directed not to the possibility that one version might be mistaken, but to the conclusion that one witness was giving evidence which was deliberately untrue.

49 As a general rule, I would not accept that it is never open to a trial Judge to suggest to a jury that the conflict between two accounts is such that, of the witnesses giving those accounts, one witness must be deliberately untruthful. It is often the case that Judges will alert juries to the need to consider not only the truthfulness, but also the accuracy, of the evidence of a witness. That is because it is considered that a jury may not be sufficiently alert to the possibility that an apparently truthful witness may be mistaken. However, in some cases it may be that the better way, or the only way, to approach certain evidence is on the basis that one or the other of the witnesses who give conflicting accounts must be doing so untruthfully. That will sharpen the need for the jury to consider such issues as demeanour and general credibility, rather than perhaps being able to overlook inconsistencies as attributable to no more than mistake. I would therefore not accept the proposition which the appellant's counsel was inclined to advance, to the effect that it was not open to his Honour to suggest to the jury that either Sinclair or the appellant on the one hand, or the deceased's mother or the appellant on the other, must have deliberately lied.

50 However, the problem arises in relation to his Honour's additional suggestion, so far as the deceased's mother was concerned, that the jury "might ask themselves" why either she or the appellant would be deliberately lying. Further, since the suggestion was made relatively close in time to the suggestion about the conflict between the appellant's evidence and Sinclair's evidence, there was a risk that precisely the same question would then come to be asked by the jury about that conflict.

51 His Honour did not give the jury any guidance as to why they would ask themselves why any of those persons nominated would be deliberately lying, or what use they could make of any conclusion at which they arrived. There were therefore two potentially impermissible lines of reasoning in which the jury might have engaged, as a result of his Honour's invitation to them to ask why, for example, the deceased's mother and/or the appellant would say something which was deliberately untrue.

(Page 22)

52 If they asked themselves that question about Sinclair or the deceased's mother, they could well, it seems to me, engage in the sort of impermissible reasoning which was discussed in Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1. Although that case was concerned with cross-examination of an accused in relation to the existence of some possible motive on the part of a complainant to lie, certain of the observations in that case are applicable, in my view, to the present case. In particular, at [8], Brennan CJ, Gaudron and Gummow JJ observed, of cross-examination of an accused about a complainant's motive:

" ... to ask an accused the question, 'Why would the complainant lie?' is to invite the jury to accept the complainant's evidence unless some positive answer to that question is given by the accused."

53 So, in the present case, there was at least a risk that his Honour's question would tend to suggest to the jury that if no acceptable reason had been put before them as to why Sinclair and the deceased's mother would lie, they should, then, accept their evidence.

54 Alternatively, if it was the appellant who was deliberately not telling the truth, there then arises the question of what the significance of such a lie might be. The obvious answer to the question "Why would the accused lie about such a matter?" is that the accused was conscious of his guilt of the offence, and wished to conceal that fact. If the jury were to engage in reasoning of that kind, they should have been guided by a direction of the kind discussed in Edwards v The Queen (1993) 178 CLR 193.

Conclusion

55 I would allow the appeal, quash the appellant's conviction, and order a retrial.