Lowe v The Queen
[2015] VSCA 327
•7 December 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2014 0248
| MATTHEW LOWE | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | WARREN CJ, REDLICH JA and ROBSON AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 4 August 2015 |
| DATE OF JUDGMENT: | 7 December 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 327 |
| JUDGMENT APPEALED FROM: | [2014] VSC 543 (Macaulay J) |
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CRIMINAL LAW – Murder – Joint criminal enterprise – Admissibility of evidence relevant to implementation and concealing of enterprise – Post-offence conduct – Proof of participation in joint enterprise – R v Ibrahim (2003) 7 VR 141, considered.
CRIMINAL LAW – Evidence – Incriminating conduct – Statutory interpretation – Part 6 Jury Directions Act 2013 – Post-offence conduct involving concealment of crime and disposal of body – Notice of evidence of incriminating conduct – Crown eschews reliance on evidence as incriminating conduct – Part 6 alone dictates application of s 25 – Part 3 has no application – Section 9 Jury Directions Act 2013 – Literal construction of s 25 requires explicit reliance on evidence of incriminating conduct – Reading in of word ‘explicit’ if necessary to give effect to legislative intent – Sections 23, 24, 25 Jury Directions Act 2013 – Taylor v Owners – Strata Plan No 11564 (2014) 306 ALR 547; Director of Public Prosecutions v Leys (2012) 296 ALR 96, applied.
CRIMINAL LAW – Evidence – Incriminating conduct – Crown not relying on post-offence conduct as implied admissions – Direction under s 25 not required – Circumstances in which direction under s 27 may be required – Whether judge obliged to give direction under s 27 when not requested – R v Rice (1996) 2 VR 406; R v Chang (2003) 7 VR 236; R v Nguyen (2001) 118 A Crim R 479, discussed – s 15 Jury Directions Act2013 – Xypolitos v The Queen [2014] VSCA 339, applied – No substantial risk of use of evidence as implied admission – Direction to exclude innocent hypothesis.
CRIMINAL LAW – Forensic decision not to seek direction – Knowles v The Queen [2015] VSCA 141, applied – Means by which reasons of trial counsel can be placed before Court.
CRIMINAL LAW – Evidence – Verdict not unsafe or unsatisfactory – Combined effect of circumstantial evidence – Application of Weissensteiner v The Queen (1993) 178 CLR 217, considered – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr T Kassimatis | Pica Criminal Lawyers |
| For the Respondent | Mr D A Trapnell QC with Ms E Ruddle | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
WARREN CJ:
On 31 October 2013 the applicant, Matthew Lowe, was convicted by a jury of the murder of Yengo Faugere (‘the deceased’). The facts and procedural background are set out in detail in the joint judgment of Redlich JA and Robson AJA, and I will not repeat them here.[1] In summary, the Crown case at trial was that the applicant participated in a joint criminal enterprise with Brok Seckold, the applicant’s cousin Peter Tiberi and others, to kill the deceased, or cause him really serious injury. The backdrop to the offending was a drug syndicate which manufactured (among other things) the drug ‘ice’, and of which Seckold was the ringleader and Tiberi, the applicant and the deceased had also been involved. The applicant’s involvement in the joint criminal enterprise was said to be evinced by a number of acts in which he allegedly engaged to assist in implementing the plan (both prior to and after the killing), including the purchase of a Nissan Navara, the rental and cleaning of a HiAce van, the purchase of certain clothing, and also the purchase of a boat. Thus, the case against him was a circumstantial one.
[1]See [73]–[92].
The applicant seeks leave to appeal his conviction on the following grounds:
1A. A substantial miscarriage of justice occurred as a result of:
(a) the admission into evidence, in the Applicant’s trial, of the purchase of a boat (‘the boat evidence’) by the Applicant and others; and
(b) the Prosecution’s reliance upon the boat evidence to invite the inference that it was used in connection with the disposal of the deceased’s body.
1B. A substantial miscarriage of justice occurred as a result of the trial judge’s failure properly or at all to direct the jury on their use of the evidence which the Prosecution adduced and relied upon as incriminating conduct.
Particulars
(a) Purchasing the Nissan Navara
(b) Cleaning the hire car at Magic Hands Carwash
(c) Purchase of clothing items in connection with the disposing of the body
(d) Purchase of the boat for the disposal of the body
2. The guilty verdict is unsafe and unsatisfactory in that it was not open to the jury, properly instructed and on the evidence admissible in the Applicant’s trial, to have returned a verdict of guilty to the charge of murder.
I have had the benefit of reading in draft form the joint reasons for judgment of Redlich JA and Robson AJA. I agree with their Honours, for the reasons that they give, that the appeal should be dismissed.
There is however one matter, raised by ground 1B, in respect of which I wish to make my own observations, namely the statutory construction of pt 6 of the Jury Directions Act 2013 (‘the Act’), and in particular the meaning of the term ‘relies’ in s 25.
Part 6 of the Act prescribes a procedure for the giving of directions on post-offence conduct. Section 23 requires the prosecution to give notice of evidence of ‘conduct’ on which it intends to rely as evidence of ‘incriminating conduct’ (formerly known as ‘consciousness of guilt’ evidence). Section 25 then provides for a mandatory direction which the trial judge must give if the prosecution relies on evidence for this purpose. Then there are additional directions which defence counsel may request.
As Redlich JA and Robson AJA note,[2] the prosecution initially gave notice pursuant to s 23 that it intended to rely on certain post-offence conduct as evidence of incriminating conduct.[3] However, during the course of the trial, the prosecution reconsidered its position; counsel indicated that he was not really relying on the conduct in that way, but rather relying on it as evidence of the applicant’s continued involvement in the joint criminal enterprise. The trial judge noted that was how he would have ruled. Accordingly, no post-offence conduct direction was sought or given under s 25 of the Act or otherwise.
[2]At [108]–[127].
[3]The notice included the evidence particularised in (b), (c) and (d) under ground 1B of the applicant’s notice of appeal.
Redlich JA and Robson AJA have disposed of the applicant’s contention that the prosecution did in fact rely (in the sense required by s 25) on evidence as evidence of incriminating conduct in its address to the jury. A preliminary question however is the proper statutory construction of pt 6 of the Act, in particular the meaning of the term ‘rely’ in s 25. Whilst this question was not fully ventilated either at trial or on the present application, it is relevant to consider it.
The key question is whether ‘reliance’ can be objectively inferred (as the applicant contends), or must be explicit (as the Crown contends). For the following reasons, I agree with Redlich JA and Robson AJAs conclusion,[4] that it must be explicit.
[4]At [142].
Principles of statutory construction
The primary object of statutory construction is to ascertain the intention of the enacting parliament and construe the provision consistently with the language and purpose of the statute as a whole.[5] As the plurality in Project Blue Sky Inc v Australian Broadcasting Authority[6] explained:
[T]he duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.[7]
[5]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381 [69] (McHugh, Gummow, Kirby and Hayne JJ).
[6](1998) 194 CLR 355 (‘Project Blue Sky’).
[7]Ibid 384 [78].
According to the plurality, the process must begin with an examination of the context of the provision.[8] It is well settled that ‘context’ in this regard extends to the existing state of the law, the history of the legislative scheme and the mischief which the statute sought to remedy,[9] and ‘imports all legitimate means by which the legislative intent may be ascertained’.[10]
[8]Ibid 381 [69].
[9]CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey and Gummow JJ).
[10]DPP v Leys (2012) 296 ALR 96, 125 [94] (Redlich and Tate JJA and T Forrest AJA) (‘Leys’).
These principles are reflected in s 35 of the Interpretation of Legislation Act 1984:
35 Principles of and aids to interpretation
In the interpretation of a provision of an Act or subordinate instrument—
(a)a construction that would promote the purpose or object underlying the Act or subordinate instrument (whether or not that purpose or object is expressly stated in the Act or subordinate instrument) shall be preferred to a construction that would not promote that purpose or object; and
(b)consideration may be given to any matter or document that is relevant including but not limited to—
(i) all indications provided by the Act or subordinate instrument as printed by authority, including punctuation;
(ii) reports of proceedings in any House of the Parliament;
(iii) explanatory memoranda or other documents laid before or otherwise presented to any House of the Parliament; and
(iv) reports of Royal Commissions, Parliamentary Committees, Law Reform Commissioners and Commissions, Boards of Inquiry, Formal Reviews or other similar bodies.
More recent High Court authority has, however, placed renewed emphasis on the actual text used in provisions. This Court in Commissioner of State Revenue v EHL Burgess Properties Pty Ltd[11] referred to a number of examples.[12] I need only mention a few to illustrate this trend. In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT),[13] Hayne, Heydon, Crennan and Kiefel JJ stated:
Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.[14]
[11][2015] VSCA 269 (‘Burgess’).
[12]Ibid [56]–[63] (Tate and Kyrou JJA and Robson AJA).
[13](2009) 239 CLR 27 (‘Alcan’).
[14]Ibid 47 [47] (citations omitted).
Subsequently, in Federal Commissioner of Taxation v Consolidated Media Holdings Ltd,[15] the High Court, quoting Alcan, said:
‘This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text’. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself.[16]
[15](2012) 250 CLR 503 (‘Consolidated Media’).
[16]Ibid 519 [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ) (citations omitted). This statement was recently adopted by the High Court in Thiess v Collector of Customs (2014) 250 CLR 664, 671 [22] (French CJ, Hayne, Kiefel, Gageler and Keane JJ) (‘Thiess’), and also by this Court in DPP v Walters (a pseudonym) [2015] VSCA 303, [2] (Maxwell P and Redlich, Tate and Priest JJA).
Similarly, in Saeed v Minister for Immigration and Citizenship,[17] French CJ, Gummow, Hayne, Crennan and Kiefel JJ stated:
Statements as to legislative intention made in explanatory memoranda or by Ministers, however clear or emphatic, cannot overcome the need to carefully consider the words of the statute to ascertain its meaning.[18]
[17](2010) 241 CLR 252 (‘Saeed’).
[18]Ibid 264–5 [31].
In Certain Lloyd’s Underwriters v Cross,[19] French CJ and Hayne J warned against the danger of overlooking the words used:
A second and not unrelated danger that must be avoided in identifying a statute’s purpose is the making of some a priori assumption about its purpose. The purpose of legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of the relevant provisions.[20]
[19](2012) 248 CLR 378 (‘Certain Lloyds’).
[20]Ibid 390 [26] (citations omitted).
Recently, this Court adopted similar language in DPP v Walters:[21]
[21][2015] VSCA 303 (‘Walters’).
Interpreting statutory provisions requires consideration of the legislative context and — where relevant — the legislative history. But, as the High Court has repeatedly emphasised, the task of statutory interpretation begins, and ends, with the words which Parliament has used. For it is through the statutory text that the legislature expresses, and communicates, its intention.
As this Court said in The Treasurer of Victoria v Tabcorp Holdings Ltd, there are
powerful reasons of principle for giving primacy to the statutory text. First, the separation of powers requires nothing less. Axiomatically, it is for the Parliament to legislate and for the courts to interpret. Close adherence to the text, and to the natural and ordinary meaning of the words used, avoids the twin dangers of a court ‘constructing its own idea of a desirable policy’, or making ‘some a priori assumption about its purpose’.
Secondly, giving the text its natural and ordinary meaning maximises the comprehensibility and accessibility of statute law, and the accountability of the legislature.
The duty to give primacy to the statutory text has two important corollaries. First, a court construing a statutory provision must strive to give meaning to every word of the provision, and to the provision(s) as a whole. Secondly, except in extremely limited circumstances, the court has no power to fill a gap in a statute or otherwise to read in words which the legislature has not used. The limits of the judicial role require that courts ‘abstain from any course which might have the appearance of judicial legislation’.[22]
[22]Ibid [2]–[4] (Maxwell P and Redlich, Tate and Priest JJA) (citations omitted).
Walters concerned the statutory construction of the baseline sentencing provisions recently inserted into the Sentencing Act 1991. In summary, the plurality held that, despite a clear statement of Parliament’s intention within the text, the legislation was ‘incapable of being given any practical operation’[23] because the provisions were silent as to the means by which sentencing judges were to achieve the stated intention.[24] Their Honours described the provisions as ‘incurably defective’.[25] In other words, there was a ‘gap’ in the legislation which it would be beyond the judicial function to fill.[26]
[23]Ibid [9], [60]–[61].
[24]Ibid [5]–[6]. Essentially, Parliament’s stated intention was that, at some unspecified time in the future, the ‘median sentence’ for a given baseline offence would be a certain number of years imprisonment. The ‘median’ is a statistical term used to identify the middle number in a series of numbers. Under the provisions, sentencing judges were required to sentence ‘compatibly with’ Parliament’s intention. Yet the legislation did not specify any particular time period in which the median was to be achieved and was unclear as to how judges were to ‘sentence compatibly’ with the future intended median.
[25]Ibid [8].
[26]Ibid [11]. The plurality explained at [7] that ‘[w]here legislation specifies an objective but is silent as to the means by which that objective is to be achieved, the interpreting court has no authority to fill the gap by reading in powers or duties which the legislature might have conferred or imposed for that purpose.’
The practical effect, if any, of these more recent formulations is yet to be clarified. Nonetheless, these cases have not displaced the principles laid down in Project Blue Sky and CIC Insurance Ltd v Bankstown Football Club Ltd,[27] which continue to be cited with approval by the High Court.[28] Considerations of context and statutory purpose clearly remain integral to statutory interpretation,[29] and the purposive approach directed by s 35 of the Interpretation of Legislation Act cannot be overlooked.
[27](1997) 187 CLR 384.
[28]See Alcan (2009) 239 CLR 27, 47 [47] (Hayne, Heydon, Crennan and Kiefel JJ); Saeed (2010) 241 CLR 252, 266 [39] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ); Certain Lloyd’s (2012) 248 CLR 378, 389 [24], 391 [28] (French CJ and Hayne J).
[29]Thiess (2014) 250 CLR 664, 672 [23] (French CJ, Hayne, Kiefel, Gageler and Keane JJ).
Reading words into provisions
As I have mentioned, the Crown contends that only explicit reliance will enliven s 25. In this sense, the Crown is asking the Court to read the word ‘explicit’ into the provision, or, put another way, to ‘read down’ the word ‘rely’ to give the provision a more limited operation.
As Lord Mersey said in the oft-cited passage from Thompson v Goold & Co,[30] ‘[i]t is a strong thing to read into an Act of Parliament words which are not there’.[31] Courts have nevertheless been prepared to read words into statutes to give effect to their purpose. As this Court said in Byrne v Marles:
where Parliament has chosen words which, if construed literally, would result in legislation missing the target at which it is aimed, and the words are reasonably open to another construction that will carry Parliament’s intention into effect, the court may construe the words in that fashion even if it involves the addition of words to those which have been used.[32]
[30][1910] AC 409.
[31]Ibid 420.
[32](2008) 19 VR 612, 628 [54] (Nettle JA, Dodds-Streeton JA and Coghlan AJA agreeing) (‘Byrne’). See also Burgess [2015] VSCA 269, [69] (Tate and Kyrou JJA and Robson AJA); Leys (2012) 296 ALR 96, 120 [80] (Redlich and Tate JJA and T Forrest AJA).
Lord Diplock in Wentworth Securities Ltd v Jones[33] set out three preconditions for the implication of additional words:
[33][1980] AC 74 (‘Wentworth’).
·first, it must be possible to determine from a consideration of the provisions of the Act read as a whole precisely what mischief the Act sought to remedy;
·secondly, it must be apparent that the drafter and Parliament had by inadvertence overlooked, and so omitted to deal with, an eventuality that required to be dealt with if the purpose of the Act was to be achieved; and
·thirdly, it must be possible to state with certainty what were the additional words that would have been inserted by the drafter and approved by Parliament had their attention been drawn to the omission before the Bill.[34]
These three conditions have been applied by Australian courts,[35] including this Court.[36]
[34]Ibid 105.
[35]See, eg, Tokyo Mart Pty Ltd v Campbell (1988) 15 NSWLR 275, 283 (Mahoney JA, McHugh and Clark JJA agreeing); Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292, 299 (Hope JA), 302 (McHugh JA). See also Dennis C Pearce and Robert S Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 8th ed, 2014) [2.33].
[36]For a recent example, see Leys (2012) 296 ALR 96.
In R v Young,[37] however, Spigelman CJ suggested that his Lordship’s three conditions would not always be sufficient, and made some comments regarding the process of ‘reading in’ words, preferring the terminology ‘reading down’:
The three conditions set out by Lord Diplock should not be misunderstood. His Lordship did not say, nor do I take any of their Honours who have adopted the passage to suggest, that whenever the three conditions are satisfied, a court is at liberty to supply the omission of the legislature. Rather, his Lordship was saying that in the absence of any one of the three conditions, the court cannot construe a statute with the effect that certain words appear in the statute.
As I understand the recent cases, they are not authority for the proposition that a court is entitled, upon satisfaction of the three conditions postulated by Lord Diplock, to perfect the parliamentary intention by inserting words in a statute. The court may construe words in the statute to apply to a particular situation or to operate in a particular way, even if the words used would not, on a literal construction, so apply or operate. However, the words which actually appear in the statute must be reasonably open to such a construction. Construction must be text based.
…
Putting to one side obvious typographical errors (see Bennion, Statutory Interpretation: A Code, 3rd ed (1997) Butterworths, London at 675-677), the court supplies words ‘omitted’ by the draftsperson only in the sense that the words so included reflect in express, and therefore more readily observable, form, the true construction of the words actually used. In my opinion, the authorities do not warrant the court supplying words ‘omitted’ by inadvertence per se.
Where the words actually used are not reasonably capable of being construed in the manner contended for, they will not be so construed: McAlister v The Queen (1990) 169 CLR 324 at 330; R v Di Maria (1996) 67 SASR 466 at 472-474. If a court can construe the words actually used by the parliament to carry into effect the parliamentary intention, it will do so notwithstanding that the specific construction is not the literal construction and even if it is a strained construction. The process of construction will, for example, sometimes cause the court to read down general words, or to give the words used an ambulatory operation. So long as the court confines itself to the range of possible meanings or of operation of the text — using consequences to determine which meaning should be selected — then the process remains one of construction.
The construction reached in this way will often be more clearly expressed by way of the addition of words to the words actually used in the legislation. The references in the authorities to the court ‘supplying omitted words’ should be understood as a means of expressing the court’s conclusion with clarity, rather than as a description of the actual reasoning process which the court has conducted. In all cases, what the court has done is to construe the words actually used in their total context. When the authorities are so understood, the additional words proposed in the present case are plainly impermissible.[38]
[37](1999) 46 NSWLR 681 (‘Young’).
[38]Ibid 687–8 [11]–[16] (emphasis added).
Chief Justice Spigelman’s approach has subsequently been widely accepted.[39] However, Victorian courts had been reluctant to express a view as to whether it should be followed. In Victorian Workcover Authority v Wilson,[40] Callaway JA, having found that Lord Diplock’s three conditions were satisfied in that case, said it was unnecessary to decide whether they were ‘necessary or necessary and sufficient or usually necessary and sufficient’.[41] In Victorian Workcover Authority v Vitoratos,[42] his Honour once again left open the question of whether Young should be followed.[43]
[39]See Pearce and Geddes, above n 35, [2.35] for a list of appellate decisions which have adopted Spigelman CJ’s views.
[40](2004) 10 VR 298.
[41]Ibid 306 [27].
[42](2005) 12 VR 437.
[43]Ibid 439 [5].
In the more recent decision of Director of Public Prosecutions v Leys[44] this Court rejected several aspects of Spigelman CJ’s reasoning in Young and subsequent cases,[45] ultimately preferring Lord Diplock’s formulation, and indeed adding to it a fourth condition:
In our view the question whether a construction should be adopted that departs from the literal meaning of the words used in a statutory provision to give effect to the purpose of the provision, and the purpose of the Act, is not one that should be answered by reference to whether or not the construction will ‘confine the sphere of operation of a statute more narrowly than the full scope of the dictionary definition of the words would suggest’. The question should rather be answered by reference to the three conditions set out by Lord Diplock together with the additional requirement that the modified construction is reasonably open. That is to say, it must be possible to ‘read in’ or imply the additional words into the relevant statutory provision without giving to the provision an unnatural, incongruous or unreasonable construction and the provision as modified must produce a construction that is in conformity with the statutory scheme.[46]
[44](2012) 296 ALR 96.
[45]In particular, Spigelman CJ’s subsequent comments in R v PLV (2001) 51 NSWLR 736. See Leys (2012) 296 ALR 96, 121–31 [83]–[111] (Redlich and Tate JJA and T Forrest AJA).
[46]Leys (2012) 296 ALR 96, 130–1 [109] (Redlich and Tate JJA and T Forrest AJA) (citations omitted) (emphasis added).
The issue recently came before the High Court in Taylor v Owners – Strata Plan No 11564.[47]After reviewing the authorities, French CJ, Crennan and Bell JJ held that the question of whether a court is justified in reading additional words into a statute involves ‘a judgment of matters of degree’.[48] Their Honours explained:
That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision. It is answered against a construction that fills ‘gaps disclosed in legislation’ or makes an insertion which is ‘too big, or too much at variance with the language in fact used by the legislature’.[49]
[47](2014) 306 ALR 547 (‘Taylor’).
[48]Ibid 557 [38].
[49]Ibid (citations omitted).
As to Lord Diplock’s conditions, their Honours said that the NSW Court of Appeal had been right to consider them, but found it unnecessary to decide whether they would always, or even usually, be necessary or sufficient because ‘the task remains the construction of the words the legislature has enacted.’[50]
[50]Ibid 557–8 [39].
As to the fourth condition adopted by this Court in Leys, their Honours said:
In this respect it may not be sufficient that ‘the modified construction is reasonably open having regard to the statutory scheme’ because any modified meaning must be consistent with the language in fact used by the legislature. Lord Diplock never suggested otherwise. Sometimes, as McHugh J observed in Newcastle City Council v GIO General Ltd, the language of a provision will not admit of a remedial construction. Relevant for present purposes was his Honour’s further observation, ‘[i]f the legislature uses language which covers only one state of affairs, a court cannot legitimately construe the words of the section in a tortured and unrealistic manner to cover another set of circumstances’.[51]
[51]Ibid (citations omitted).
Finally, their Honours cautioned against the adoption of a purposive construction that ‘departs too far from the statutory text’ which, in their Honours’ view, might violate the separation of powers in the Constitution.[52] These statements reflect the High Court’s recent emphasis on the actual text, as already discussed.
[52]Ibid 558 [40] (citations omitted).
Hence, following Taylor, the focus of this Court in considering whether to depart from the literal meaning of the words in s 25 of the Act must be the construction of the words the legislature has enacted. While the conditions applied in Leys may be relevant, they will not be determinative.
Abolishing the common law
Legislation is presumed not to alter common law doctrines and not to invade common law rights.[53] These presumptions are underpinned by the principle of legality.[54] However, a clear intention on the part of Parliament to alter, or indeed abolish, common law principles must be respected. It must be irresistibly clear.[55] As French J explained in Federal Commissioner of Taxation v Citibank Ltd:[56]
The nature of this society and its tradition of respect for individual freedoms, will support an approach to construction which requires close scrutiny and a strict reading of statutes which would otherwise remove or encroach upon those freedoms. But where the natural meaning of the words is clear, the will of the Parliament must be respected.[57]
[53]Pearce and Geddes, above n 35, [5.37].
[54]North Australian Aboriginal Justice Agency Limited v Northern Territory [2015] HCA 41 [11] (French CJ and Kiefel and Bell JJ).
[55]Ibid.
[56](1989) 20 FCR 403 (‘FCT v Citibank’).
[57]Ibid 433.
The provisions
Turning now to the provisions of pt 6 of the Act. It is convenient to set out each provision in full.
Section 22 defines the terms ‘conduct’ and ‘incriminating conduct’ as follows:
22 Definitions
In this Part—
conduct means the telling of a lie by the accused, or any other act or omission of the accused, which occurs after the event or events alleged to constitute an offence charged;
incriminating conduct means conduct that amounts to an implied admission by the accused—
(a)of having committed an offence or an element of an offence charged; or
(b)which negates a defence to an offence charged;
…
Section 23 requires the prosecution to give notice if it intends to rely on evidence as evidence of incriminating conduct:
23 Prosecution notice of evidence to be relied on as evidence of incriminating conduct
(1) The prosecution must give notice of evidence of conduct that it proposes to rely on as evidence of incriminating conduct by serving on the accused and filing in court at least 28 days before the day on which the trial of the accused is listed to commence—
(a) a notice of intention to rely on evidence of incriminating conduct, in the form required by rules of court, if any; and
(b)a copy of the evidence on which the prosecution intends to rely.
…
Section 24 sets out two requirements that must be met before the prosecution can rely on evidence as evidence of incriminating conduct:
24 Evidence of incriminating conduct
(1) The prosecution must not rely on evidence of conduct as evidence of incriminating conduct unless—
(a) the prosecution has given notice in accordance with section 23; and
(b) the trial judge determines that, on the basis of the evidence as a whole, the evidence of conduct is reasonably capable of being viewed by the jury as evidence of incriminating conduct.
…
(2) Subsection (1) applies even if the evidence of conduct may be admissible for another purpose.
Section 25 sets out the mandatory direction:
25 Mandatory direction on use of evidence of incriminating conduct
(1) If the prosecution relies on evidence of conduct as evidence of incriminating conduct, the trial judge must direct the jury that—
(a)the jury may treat the evidence as evidence that the accused believed that he or she had committed the offence charged or an element of the offence charged, or that he or she had negated a defence to the offence charged, only if it concludes that—
(i) the conduct occurred; and
(ii) the only reasonable explanation of the conduct is that the accused held that belief; and
(b)even if the jury concludes that the accused believed that he or she had committed the offence charged, it must still decide, on the basis of the evidence as a whole, whether the prosecution has proved the guilt of the accused beyond reasonable doubt.
(2) In giving a direction under this section, a trial judge need not refer to each act or omission of the accused.
Note
Section 6 provides that a trial judge need not use any particular form of words in giving a direction to the jury. For example, in relation to the direction referred to in subsection (1)(a)(ii), if the evidence concerns an element of an offence, the trial judge could refer to ‘knew’ rather than ‘believed’ to better describe what the incriminating conduct, if accepted, may prove.
Section 26 provides for an additional direction which defence counsel may request following a mandatory direction:
26 Additional direction on incriminating conduct
If the trial judge gives, or proposes to give, a direction under section 25, defence counsel may request under section 11 that the trial judge also direct the jury that—
(a)there are all sorts of reasons why a person might behave in a way that makes the person look guilty; and
(b)the accused may have engaged in the conduct even though the accused is not guilty of the offence charged; and
(c)even if the jury thinks that the conduct makes the accused look guilty, that does not necessarily mean that the accused is guilty.
Note
Section 14 requires the trial judge to give this direction, if requested, unless there are good reasons for not doing so. Section 15 requires the trial judge to give a direction that is necessary to avoid a substantial miscarriage of justice.
Section 27 deals with the situation where the prosecution does not rely on the evidence as evidence of incriminating conduct, but where defence counsel considers there to be a risk that it might be used improperly by the jury:
27 Direction to avoid risk of improper use of evidence
(1) If evidence is given of conduct but the prosecution does not rely on the evidence as evidence of incriminating conduct, defence counsel may request under section 11 that the trial judge—
(a)direct the jury that there are all sorts of reasons why a person might behave in a way that makes the person look guilty; and
(b)warn the jury that even if the jury thinks that the accused engaged in the conduct, it must not conclude from that evidence that the accused is guilty of the offence charged.
Note
Section 14 requires the trial judge to give this direction, if requested, unless there are good reasons for not doing so. Section 15 requires the trial judge to give a direction that is necessary to avoid a substantial miscarriage of justice.
(2) Without limiting section 14, it is a good reason for not giving the requested direction if the trial judge considers that there is no substantial risk that the jury might use the evidence as evidence of incriminating conduct.
Finally, s 28 expressly abolishes the common law in respect of post-offence conduct directions:
28 Abolition of common law rules
(1) Except as provided by this Part, a trial judge is not required to give the jury a direction regarding evidence because it is evidence of incriminating conduct or may be improperly used as evidence of incriminating conduct.
(2) In considering whether evidence of incriminating conduct establishes, or assists in establishing guilt, a jury is not required—
(a)to reason from an indispensable intermediate fact where that fact is proved, wholly or partly, by evidence of incriminating conduct; or
(b)to be satisfied beyond reasonable doubt of the incriminating conduct because it proves, or assists in providing, an indispensible intermediate fact.
(3) Any rule of common law to the contrary of this section is abolished.
Notes
1 This provision addresses rules based on Edwards v R [1993] HCA 63; (1993) 178 CLR 193 and Zoneff v R [2000] HCA 28; (2000) 200 CLR 234 and the application of Shepherd v R [1990] HCA 56; (1990) 170 CLR 573 to post-offence conduct.
2 Section 4 applies generally to override any rule of law or practice to the contrary of this Act.
History and purpose of the legislation
The purposes of the Act are expressly stated in s 1:
1 Purposes
The purposes of this Act are—
(a) to reduce the complexity of jury directions in criminal trials; and
(b) to simplify and clarify the issues that juries must determine in criminal trials; and
(c) to simplify and clarify the duties of the trial judge in giving jury directions in criminal trials; and
(d) to clarify that it is one of the duties of legal practitioners appearing in criminal trials to assist the trial judge in deciding which jury directions should be given; and
(e) to assist the trial judge to give jury directions in a manner that is as clear, brief, simple and comprehensible as possible; and
(f) to permit the trial judge to answer questions from the jury about the meaning of the phrase ‘proof beyond reasonable doubt’; and
(g) to provide for simplified jury directions in relation to post-offence conduct.
The Act was introduced in response to widespread concerns about the increasing number and complexity of jury directions in Victoria. It was based largely on recommendations made by the Victorian Law Reform Commission (‘VLRC’) in its 2009 report, Jury Directions,[58] as refined by the Department of Justice (‘DOJ’) in its subsequent report, Jury Directions – A New Approach.[59]
[58]Victorian Law Reform Commission, Jury Directions, Final Report No 17 (2009) (‘VLRC Report’). The report was commissioned by the Attorney-General in January 2008. The VLRC was assisted in its preparation of the report by a consultative committee comprising a number of trial and appellate court judges, prosecutors and criminal barristers, and in particular by the Hon Geoffrey Eames QC, a retired judge of this Court, as the expert consultant to the reference.
[59]Department of Justice, Jury Directions – A New Approach (January 2013) (‘DOJ Report’). Indeed, the wording of pt 6 of the Act closely reflects the language used by the DOJ in its recommendations: see at 102-3 [8.4].
Prior to the introduction of the Act, post-offence conduct (or ‘consciousness of guilt’ evidence as it was previously known) directions were governed by the majority decision in Edwards v The Queen,[60] in which Deane, Dawson and Gaudron JJ held that:
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, or, as was said in Reg v Lucas (Ruth), 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. And in many cases where there appears to be a departure from the truth it may not be possible to say that a deliberate lie has been told. The accused may be confused. He may not recollect something which, upon his memory being jolted in cross-examination, he subsequently does recollect.[61]
[60](1993) 178 CLR 193 (‘Edwards’).
[61]Ibid 210-11 (citations omitted).
The VLRC Report identified several concerns with the Edwards direction, including:
·uncertainty as to when a direction was required;[62]
·inconsistency in the characterisation of evidence as consciousness of guilt evidence;[63]
·the burdensome content requirements (in particular the need to identify every item of post-offence conduct from which a consciousness of guilt could be inferred);[64] and
·the conduciveness of Edwards directions to judicial error.[65]
Of particular concern was the high volume of appeals being brought in relation to post-offence conduct directions, and the significant number of retrials being ordered as a result.[66] The VLRC reported that of the 80 or so such appeals in the 1990s, the appellant had succeeded in 28.[67] These concerns were echoed by the DOJ[68] and by the legislature.[69]
[62]VLRC Report, above n 58, 48-9 [3.73]-[3.80].
[63]Ibid 49 [3.77], [3.81].
[64]Ibid 49 [3.81].
[65]As the VLRC explained at ibid 49 [3.77]: ‘If the judge wrongly decides than an item of evidence does not require a consciousness of guilt warning, this would almost certainly constitute an error of law that would result in a successful appeal because the warning is essential when there is consciousness of guilt evidence. If, however, a consciousness of guilt warning is given when the evidence is not capable of supporting an inference of guilt, this also constitutes an error of law that is likely to result in a successful appeal.’
[66]Ibid 49 [3.78].
[67]Ibid 49 no 116.
[68]DOJ Report, above n 59, 100-2 [8.3].
[69]Part 6 of the Explanatory Memorandum to the Jury Directions Bill 2012 stated ‘The current law on post-offence conduct or consciousness of guilt evidence has resulted in directions to the jury that are lengthy, complex, difficult to understand and prone to error. These problems can be attributed to cases such as Edwards v R [1993] HCA 63 and Zoneff v R [2000] HCA 28.’
As the DOJ Report explained:
A significant problem with the current law on jury directions concerns uncertainty over when a direction is required. It can be difficult for the trial judge to determine when a direction is required. For example, post-offence conduct directions have resulted in notoriously complex directions. It can be difficult to determine whether certain evidence is relied on as post-offence conduct evidence. Where it is not, it can be difficult to determine whether there is a danger that the jury may inappropriately use the evidence as consciousness of guilt. These issues must be resolved before the trial judge can determine what kind of direction is necessary.[70]
[70]DOJ Report, above n 59, 20 [2.2.2].
The Attorney-General in the second reading of the Jury Directions Bill 2012 outlined the ways in which pt 6 of the Act was intended to address these concerns:
In some cases it is difficult for the trial judge to know whether to give a particular direction, and if so, precisely what form it should take. It is not surprising that this can lead to judicial error.[71]
…
The reforms remove complex common law requirements brought about by cases like Edwards v R (1993) 178 CLR 193 and Zoneff v R (2000) 200 CLR 234 and focus on the key issues of identifying this evidence, informing the jury as to how the evidence may or may not be used and providing appropriate warnings to the jury.
To avoid current problems with the identification or characterisation of this kind of evidence, the bill requires the prosecution to give notice to the trial judge if it intends to use the evidence to demonstrate an implied admission of guilt by the accused. Clause 23 will avoid the current problem of the prosecution relying on the evidence generally at the trial stage and the evidence only being identified as post-offence conduct evidence at the appellate stage. If the prosecution does not comply with the process in the bill, it will be clear that the evidence is not, and cannot, be relied on as post-offence conduct evidence. In such a case, the issue becomes whether the accused requests a cautionary direction under clause 27.[72]
[71]Victoria, Parliamentary Debates, Legislative Assembly, 13 December 2012, 5557 (Robert Clark, Attorney-General).
[72]Ibid 5560 (emphasis added).
Likewise, the Explanatory Memorandum stated the requirement in s 24 of the Act ‘will make clear that the prosecution is not relying on evidence of conduct as incriminating conduct whenever it does not comply with the [notice] procedure and the trial judge does not allow the evidence to be used in that way.’[73]
[73]Explanatory Memorandum, Jury Directions Bill 2012 cl 24. See also DOJ Report, above n 59, 105–7 [8.4.2].
The Explanatory Memorandum also made clear that s 28 was intended to ensure the common law in relation to post-offence conduct was abolished and retained no ‘residual application’.[74]
[74]Explanatory Memorandum, Jury Directions Bill 2012 cl 28.
The parties’ submissions
The parties’ submissions on the proper construction of the term ‘relies’ in s 25 were quite limited. Neither side seemed to truly grapple with the issue beyond basic assertions as to their preferred constructions. Cases decided prior to the enactment of the Act (such as R v Chang[75] and R v Rice[76]) were frequently referred to, without amplification as to their relevance under the new regime, especially in light of s 28 of the Act.
[75](2003) 7 VR 236 (‘Chang’).
[76](1996) 2 VR 406 (‘Rice’).
Applicant’s submissions
The applicant submitted that s 25 is enlivened whenever the prosecution relies — as it did in the present case — on evidence of conduct as evidence of incriminating conduct, whether expressly or not. The applicant acknowledged that ultimately counsel may not have intended to rely on the evidence in that way, but submitted that objectively (in fact) he did, in the course of his submissions, invite the jury to treat it as such. In other words, the applicant submitted that reliance could be inferred from counsel’s conduct.
He said that the application of s 25 involves two steps: first, pursuant to s 24, an objective appraisal by the trial judge as to whether the evidence is reasonably capable of being viewed by the jury as incriminating conduct;[77] and secondly, a determination of whether the prosecution relied on the evidence as incriminating conduct.
[77]Note that this is only one of two requirements in s 24. It also requires that the prosecution give notice.
It was put to counsel that the applicant’s construction of s 25 would undermine the purpose of the notice provision in s 23. In response, counsel conceded that it could not be the case that any evidence capable of being viewed as incriminating conduct would attract a s 25 direction (which he agreed was tantamount to the previous position under the common law), and that notice was required. However, he sought to distinguish between intention to rely, pursuant to s 23, and the separate question of actual reliance in s 25. He submitted that once notice is given — as it was in this case — the trial judge must still consider how the evidence was relied upon.
When similarly questioned in respect of s 27, counsel submitted that it covers situations where evidence of conduct objectively capable of being viewed by the jury as incriminating conduct is led, but is never relied upon by the Crown in that way (expressly or otherwise), that is, where no notice is given.
The applicant acknowledged that defence counsel at trial did not request a direction under s 27 or otherwise, and did not object to the judge’s charge. However, he submitted that counsel had simply failed to do so, and that it did not represent a forensic decision.[78] Ultimately, the applicant submitted that it was immaterial because a direction under s 25 was mandatory, whether any request was made or not.[79]
[78]In some cases, the accused may wish to avoid a direction because, for example, of the risk that it may in fact highlight that the evidence makes him or her look guilty. Counsel for the applicant submitted that it could not have been a forensic choice in this case, given the prominence of the evidence at trial.
[79]The applicant further submitted that, by operation of s 9 of the Act, pt 3 (which governs parties’ requests for directions) does not apply to s 25.
It was also put to counsel that, on the applicant’s construction, a primary purpose of the legislation, namely clarity regarding reliance by the Crown on certain evidence, may be defeated. Counsel’s response was twofold. He said that either (1) the Act simply does not go as far as the legislature (subjectively) intended; or (2) this particular case represents a unique situation which ordinary ought not to have created these problems.
Finally, the applicant appeared to accept in written submissions that, by virtue of s 28, pt 6 of the Act operates as a code. Yet, in both written and oral submissions, counsel relied extensively on cases decided under the previous common law position in Edwards.[80]
[80]Such as Edwards (1993) 178 CLR 193; R v Nguyen (2001) 118 A Crim R 479; Chang (2003) 7 VR 236; Rice (1996) 2 VR 406.
Crown’s submissions
The Crown submitted that s 25 clearly requires explicit reliance and that, in the absence of explicit reliance, any potential misuse of the evidence as evidence of incriminating conduct must be remedied via s 27. Further, the Crown submitted that the decision about whether or not to request a s 27 direction is a forensic decision for defence counsel. Finally, the Crown submitted that in this case an extremely experienced trial barrister, well versed in the nuances of the trial, made a forensic decision not to request a direction, presumably because he did not perceive any substantial risk that the jury would misuse the evidence.
Construction of ‘rely’ in s 25
‘Reliance’ in the ordinary sense of the word need not be explicit. According to the Macquarie Dictionary, to ‘rely’ means simply to ‘depend confidently on’ or ‘put trust in’.
This ordinary meaning has been adopted in other areas of law. In consumer law it is well-established that reliance, in the context of implied conditions for the sale of goods for example, will ‘seldom be express’, and rather ‘will usually arise by implication from the circumstances.’[81] Likewise, in equitable doctrines such as estoppel, reliance on a representation or promise is almost always inferred from conduct.
[81]Tre Cavalli Pty Ltd v Berry Rural Co Operative Society Ltd [2013] NSWCA 235 [95] (Gleeson JA, McColl and Leeming JJA agreeing). The context in that case was the application of s 19 of the Sale of Goods Act 1923 (NSW), which provided that terms as to quality and fitness for purpose would be implied only where the buyer relies on the seller’s skills or judgement. See also Aqua-Marine Marketing Pty Ltd v Pacific Reef Fisheries (Australia) Pty Ltd(No 5) [2012] FCA 908 [155]-[157] (Collier J); Grant v Australian Knitting Mills Ltd (1935) 54 CLR 49, 60 (The Lord Chancellor, Lord Blanesburgh, Lord Macmillan, Lord Wright and Sir Lancelot Sanderson).
While a literal reading of s 25 in isolation prima facie supports the applicant’s construction, for the reasons that follow, I am of the view that a literal construction cannot be maintained. The context of the provision, the consequences of a literal construction and the purpose of the Act demand a different interpretation, namely that reliance must be explicit.
First, the placement of s 25 in the context of pt 6 as a whole, suggests that the legislature intended ‘reliance’ to be explicit. The provision follows both the notice requirement in s 23, and also s 24 which reiterates that the prosecution must not rely on evidence of conduct as evidence of incriminating conduct unless it has complied with the notice procedure[82] and the judge has subsequently determined that the evidence can be used in this way.[83] Clearly the legislature expected the prosecution to be explicit about when it was relying on incriminating conduct evidence. Even if the prosecution gives notice (as in the present case ), if later it explicitly withdraws its notice, it should be clear that it is no longer relying on the evidence as evidence of incriminating conduct.
[82]Jury Directions Act 2013 s 24(1)(a).
[83]Ibid s 24(1)(b).
Section 27, which follows s 25, is sufficient to deal adequately with a situation such as the present case, where evidence of incriminating conduct is led, but not explicitly relied on, and defence counsel is concerned about potential misuse of the evidence by the jury. Counsel must make a forensic decision about whether to request a direction. If counsel makes a poor forensic choice, such that there is a substantial risk that the trial will miscarry, s 15 will be sufficient to adequately protect the accused.
In my view, a literal interpretation would undermine the operation of ss 23 and 27. In contrast, the preferred construction gives the provisions in pt 6 a natural, sequential and harmonious operation.
Secondly, the consequences of a literal construction also support departure from it. On the applicant’s construction, once notice is given, and the relevant determination in s 24 is made, the trial judge would then be required to further enquire as to whether the prosecution objectively relied on the evidence as incriminating conduct. Whilst this would be unduly burdensome on trial judges, it would also undermine the purposes of the Act, in particular the purpose set out in s 1(c), namely to simplify and clarify the duties of the trial judge in giving directions. I reject the applicant’s distinction between intention to rely pursuant to s 23 and actual reliance.[84]
[84]Discussed above at [50].
Thirdly, such a construction would be tantamount to winding back the clock to the previous common law position. This cannot be so when s 28 evinces a clear intention on the part of the Parliament to abolish it.[85] In such circumstances, the cases on which the applicant relies[86] can only inform the construction of pt 6 in so far as they reveal the mischief it seeks to remedy.
[85]FCT v Citibank (1989) 20 FCR 403, 433 (French J).
[86]See above n 80.
That ‘mischief’ included uncertainty about when directions were required, difficulty in determining when the prosecution was relying on post-offence conduct evidence, and conduciveness to judicial error. A literal construction of ‘reliance’ would reintroduce some of that uncertainty, and could lead to inconsistent determinations as to whether the prosecution is in fact relying on evidence as incriminating conduct. It would in turn increase the risk of judicial error. It simply cannot be sustained.
Fourthly, the extrinsic materials discussed above at [44] to [46] further support the conclusion that reliance must be explicit. The materials state plainly that where the prosecution does not comply with the process in pt 6, it will be clear that the evidence is not, and cannot, be relied on as evidence of incriminating conduct.
Fifthly, s 35 of the Interpretation of Legislation Act requires this Court to prefer the Crown’s construction, which would promote the underlying objects of the Act, over the applicant’s construction, which would not.
Reading in of the word ‘explicit’
To the extent that the preferred construction requires the word ‘explicit’ to be read into s 25, and the principles in Taylor are engaged, the approach does not ‘depart too far’ from the language used, or ‘fill a gap’ in the legislation in the sense with which the pluralities in Taylor and Walters were concerned.[87] Rather, at worst it might be said that Parliament by inadvertence simply overlooked an eventuality that was required to be dealt with if the purpose of the Act was to be achieved, namely a situation where the prosecution gives notice of, but subsequently withdraws, its intention to rely on incriminating conduct.[88]
[87]See Taylor (2014) 306 ALR 547, 557–8 [38]–[40] (French CJ, Crennan and Bell JJ); Walters [2015] VSCA 303, [11] (Maxwell P and Redlich, Tate and Priest JJA).
[88]Wentworth [1980] AC 74, 105 (Lord Diplock).
To the extent that the four conditions applied by this Court in Leys are relevant,[89] they are met. For the reasons already explained:
[89]Albeit neither necessary nor sufficient following Taylor (2014) 306 ALR 547.
·the mischief with which pt 6 is concerned is clear;
·it is apparent that Parliament inadvertently overlooked, and failed to legislate for, the present situation;
·the word to be inserted was easily identified; and
·the modified construction accords with the statutory scheme and does not give the provision an unnatural, incongruous or unreasonable interpretation.[90]
[90]Leys (2012) 296 ALR 96, 130–1 [109] (Redlich and Tate JJA and T Forrest AJA).
Applying ordinary rules of statutory construction, explicit reliance by the Crown is the correct interpretation; a different interpretation would result in the legislation missing the target for which it is intended.[91] Thus, on the basis of statutory construction principles, no error has been identified.
REDLICH JA
[91]See Byrne (2008) 19 VR 612, 628 [54] (Nettle JA, Dodds-Streeton JA and Coghlan AJA agreeing).
ROBSON AJA:
After a trial by jury, the applicant was convicted of one charge of murder. He was acquitted of one charge of kidnapping. He subsequently pleaded guilty to a separate indictment containing drugs and firearms offences.[92] The applicant was sentenced to a total effective sentence of 21 years and 8 months’ imprisonment with a non-parole period of 16 years. The individual sentence on the charge of murder was 20 years’ imprisonment.
[92]The applicant pleaded guilty to one charge of trafficking in a drug of dependence in not less than a large commercial quantity, one charge of possessing an unregistered general category handgun, two charges of possessing an unregistered category A longarm and one charge of possessing an unregistered category B longarm. An acquittal was directed on a further charge of possessing an unregistered general category handgun without a licence.
The applicant now seeks leave to appeal against his conviction for murder on the following grounds:
1A. A substantial miscarriage of justice occurred as a result of:
(a)the admission into evidence, in the Applicant’s trial, of the purchase of a boat (‘the boat evidence’) by the Applicant and others; and
(b)the Prosecution’s reliance upon the boat evidence to invite the inference that it was used in connection with the disposal of the deceased’s body.
1B.A substantial miscarriage of justice occurred as a result of the trial judge’s failure properly or at all to direct the jury on their use of the evidence which the Prosecution adduced and relied upon as incriminating conduct.
Particulars
(a) Purchasing the Nissan Navara
(b) Cleaning the hire car at Magic Hands Carwash
(c)Purchase of clothing items in connection with disposing of the body
(d) Purchase of the boat for the disposal of the body
2.The guilty verdict is unsafe and unsatisfactory in that it was not open to the jury, properly instructed and on the evidence admissible in the Applicant’s trial, to have returned a verdict of guilty to the charge of murder.
For the reasons that follow, we would refuse leave to appeal on grounds 1A and 2, grant leave on ground 1B, and dismiss the appeal.
The trial
The Crown case at trial was that the applicant participated in a joint criminal enterprise to kidnap and then to kill or cause really serious injury to the deceased, Yengo Faugere. The other members of the joint criminal enterprise were said to include Brok Seckold, Peter Tiberi (the applicant’s cousin) and others. At the time of the offending, the applicant was 22 years old. The applicant was found guilty by the jury of murder but was acquitted of kidnapping. Following an earlier separate trial, Seckold was found guilty of both the kidnap and the murder of Faugere.
The Crown’s case against the applicant was entirely circumstantial. Due to the nature of the grounds of appeal, it is necessary to review the circumstances of the offending, the evidence before the jury and the issues in the trial in some detail.
Summary of evidence
The applicant was a member of a drug syndicate led by Seckold that manufactured and/or sold methylamphetamine (the drug ‘ice’) and ephedrine (a precursor chemical for the manufacture of ice). The applicant was described as being Seckhold’s ‘righthand man’ or his ‘perfect sidekick’.[93] His roles included driver, pilot, cook and manual labourer. The applicant and Seckold lived together in an apartment in Maribyrnong.
[93]DPP v Lowe [2014] VSC 543, [22].
The deceased had been a member of the syndicate prior to the applicant’s involvement in the group. He had been actively involved in the drug-making process and had been working at a property in Canterbury manufacturing drugs for the syndicate. The drug manufacturing process at the Canterbury property was discovered by police in July 2011. Seckold, the leader of the syndicate, formed the view that the deceased had stolen chemicals from the property and had possibly informed the police of the syndicate’s activities there. The Crown case was that, after the raid on the Canterbury property, Seckold formed a plan to kill the deceased and began to make preparations with the applicant and others to do so. The implementation of that plan was said to have commenced on 17 October 2011.
On that day, the applicant purchased a white 1992 Nissan Navara utility (‘the Nissan Navara’) for $1500 in cash from a couple in Seymour, using a fake New South Wales driver’s licence.
On 18 October 2011, the applicant and Tiberi rented a white 2010 Toyota HiAce (‘the HiAce van’) from a rental company in Moonee Ponds. Unbeknownst to the applicant and Tiberi, the van was fitted with a GPS tracking device used by the company to ensure the recovery of its vehicles.
The data from the tracking device showed that after its rental the HiAce van made several visits to the premises in Maribyrnong where the deceased resided. It was seen in the vicinity of the premises shortly before the deceased was last seen there. At some time after 4:00am on 20 October 2011, the van left the Maribyrnong premises and travelled to the Mansfield-Woods Point Road in Mansfield, more than 200 kilometres away. A witness gave evidence that the HiAce van and the Nissan Navara were parked together for several hours on the morning of 20 October 2011 on the Mansfield-Woods Point Road. The Crown case was that the deceased was taken in the van from the Maribyrnong premises to Mansfield and was killed in the vicinity of the Mansfield-Woods Point Road.
At approximately 2:40pm on 20 October 2011 the HiAce van left the Mansfield area and returned to Melbourne, arriving in the late afternoon in the vicinity of the apartment shared by the applicant and Seckold in Maribyrnong. It was then driven to and parked in the vicinity of Tiberi’s home in Glen Iris.
On the afternoon of 21 October 2011, the HiAce van was driven to a car wash in Glen Iris and washed inside and out.[94] Later that day the van was parked adjacent to a Target department store in Camberwell. Receipts from Target later found in the Nissan Navara showed that, between 6:10pm and 6:52pm, clothing and other items to the value of $487 were purchased. The Crown case was that the clothing was purchased for those involved in the clean-up operation after the murder of the deceased. That night, the van was parked in the vicinity of the applicant’s apartment. CityLink records showed that the HiAce van and a black BMW owned by the applicant passed in convoy through various points on the CityLink tollway between Camberwell and the exit at Racecourse Road, Flemington, which was near the applicant’s apartment.
[94]This carwash is referred to in the grounds of appeal as the ‘Magic Hands Carwash’.
On the evening of 21 October 2011, a number of telephone calls were made to a man in Caroline Springs who had advertised a boat for sale. At about 10:30pm that night, a number of males arrived at the man’s residence in Caroline Springs. The boat was purchased for $7500. A handwritten receipt from the sale of the boat was later found in the Nissan Navara, as was an envelope containing a handwritten note of the seller’s name and address. There was qualified support in evidence for the proposition that the note was written by the applicant. The Crown case was that the boat was purchased for the disposal of the deceased’s body.
On 7 February 2012, police executed a search warrant on a property in St Leonards that was being used by the syndicate to manufacture drugs. The partial remains of the deceased were discovered in a barrel on the back of the Nissan Navara, which was parked in a padlocked garage. A boat was also found in close proximity.
Upon examination of the partial remains, there was evidence that the deceased’s left and right wrists had been bound. Striations detected on sections of bone fragments found in the barrel were consistent with those bones having been cut into pieces. The evidence also suggested that the deceased’s body had been partially burnt.
Forensic evidence indicated a high probability that DNA found on items of clothing located in the Nissan Navara, including items that had been purchased from Target on 21 October 2011, belonged to the applicant. Items with the applicant’s DNA found within the Navara included a jacket, a pair of fingerless gloves and a beanie. Inside the barrel were found two balaclavas. These were not purchased at Target and the applicant’s DNA was not found on them.
Prosecution case at trial
The Crown case against the applicant proceeded on the basis of joint criminal enterprise. It said that the applicant made an agreement with Seckold, Tiberi and others on or before 17 October 2011; that between them they would take the deceased from his home in Maribyrnong and then kill or really seriously injure him; that the applicant had that intention when entering the agreement; that parties to the agreement did kill the deceased pursuant to the agreement; and that the applicant participated in the enterprise in some way.
The Crown alleged that that Seckold and others took the deceased from his home in Maribyrnong on 20 October 2011 and took him to Mansfield where he was murdered. The Crown did not allege that the applicant was present at the time the deceased was killed. However, it was said that the applicant undertook a number of acts to assist in the implementation of the agreement, both before and after the killing. The Crown relied on those acts to establish the applicant’s participation in the joint criminal enterprise.
Acts prior to the killing of the deceased were the purchase by the applicant of the Nissan Navara on 17 October 2011 and, with Tiberi, the rental of the HiAce van on 18 October 2011. The Crown case was that these vehicles were acquired for the purpose of taking the deceased away and murdering him.
After the deceased was killed, the Crown case was that the applicant assisted in the ‘clean-up’ phase of the enterprise in the afternoon and evening of 21 October 2011. The applicant was said to have participated in the cleaning of the HiAce van, the purchase of the clothes and the purchase of the boat. The Crown case was that the deceased’s body was dismembered and part of his remains disposed of in Port Philip Bay.
Defence case at trial
When arrested, the applicant made a no-comment interview. He did not give evidence at trial.
The applicant disputed each element of the offences charged, including that the Crown had proven beyond reasonable doubt that the deceased was taken and killed by Seckold and others or that it was done by them intending to kill or really serious injure the deceased, or that such acts, and those before and after the killing, were done in accordance with a pre-existing agreement, or that the applicant had entered into such an agreement with Seckold and others, or that the applicant did anything as a step in the implementation of the agreement.
The applicant did not dispute that the deceased was dead but otherwise disputed the facts in support of the Crown case. In particular, the applicant argued that the jury could not be satisfied beyond reasonable doubt as to the date, manner or cause of the deceased’s death, or that the deceased was ever in the HiAce van or the Nissan Navara, or that either the Nissan Navara or the boat were connected to his death. The ultimate submission to the jury was to the effect that the Crown case was based on facts that only had probative value if the central theory of the joint criminal enterprise was assumed beforehand.
Ground 1A — Admissibility of the boat evidence
Under this ground, the applicant submits that a substantial miscarriage of justice occurred as a result of the admission of the evidence relating to the purchase of the boat (‘the boat evidence’). That evidence, which is summarised above, was to the effect that the applicant was a party to a number of telephone calls with a man who had advertised the sale of a boat and to the ultimate purchase of that boat. The applicant argues that the boat evidence was not admissible. We reject this submission.
During pre-trial argument, defence counsel objected to the admissibility of the boat evidence. There was evidence that Seckold had made admissions to the effect that the deceased’s body had been dumped in Port Philip Bay, but that evidence was not admissible in the applicant’s trial. Thus defence counsel argued that, in the case of the applicant, the conclusion urged by the Crown that the boat was used to dispose of the deceased’s body was mere speculation. Lasry J ruled that the boat evidence was admissible against the applicant:
[The prosecutor], in his submissions, put that a jury would be entitled to conclude even without the admissions by Seckold that, given the coincidence of time and the apparent urgency in the purchase of the boat, the boat was purchased for a reason connected to the disposal of the body of Faugere. In effect, he submitted that that evidence in combination with other pieces of circumstantial evidence such as the purchase of the clothes, telephone records, and the fact that a substantial portion of the body of the deceased was disposed of without being found, leads to the conclusion that the boat was purchased for the purpose of disposing of Faugere’s body.
In my opinion, in the case against Lowe, the purchase of the boat is a piece of evidence which is relevant and probative for the reason put by the prosecutor. As I understand it, the accused Lowe can be linked to the boat, in addition to the evidence of his continued participation in the enterprise at the time that it was purchased, in the sense that it was parked on a trailer close to the apartment which was being shared by Seckold and Lowe, and then later at St Leonards, where the drug enterprise in which Seckold and Lowe were both participating, was being carried out. The Crown submit that evidence demonstrates the continued involvement by Lowe in the enterprise, and in my opinion, the purchase of the boat is relevant and probative on that basis.[95]
[95]DPP v Seckold & Lowe [2013] VSC 458, [30]–[31].
The Crown’s eventual use of the boat evidence at trial was consistent with the prosecutor’s submissions to the judge on the application. In closing, the prosecutor invited the jury to infer from the boat evidence that the boat was used in the disposal of the deceased’s body:
I would suggest that the timing of the purchase of the boat and the calls made from pay phones allows you to draw the inference that the boat was purchased for a purpose or with the intention of disposing of Yengo Faugere’s body. We don’t know how it was disposed of because it’s never been recovered, but I’d suggest the boat was purchased with that intention.
The applicant argues now, as he did on the pre-trial application, that the Crown hypothesis in respect of the boat evidence was no more than conjecture, and that the prosecutor’s concession that the Crown did not ‘know how [the deceased’s body] was disposed of’ demonstrates the tenuous connection between the boat evidence and the joint criminal enterprise. The applicant submits that the boat evidence was inadmissible on the basis that it did not possess sufficient probative force to render it legally relevant.[96] In the alternative, the applicant submits that the evidence should have been excluded pursuant to s 137 of the Evidence Act 2008.
[96]Evidence Act 2008 s 55(1).
We can see no error in his Honour’s conclusion that the boat evidence was admissible. The boat was purchased with apparent urgency shortly after the time at which it was said that the deceased had been killed. The boat was discovered at the St Leonards property in close proximity to the Nissan Navara containing the partial remains of the deceased. The applicant was operating a drug manufacturing laboratory at the St Leonards property at the time of the raid on 7 February 2012. A note with the seller’s name and address, said to have been written by the applicant, was found in the Nissan Navara. Given the circumstances of the purchase of the boat and the co-location of the boat with the partial remains of the deceased it was open to the jury to find that the boat had been used in the disposal of the deceased’s body. The boat evidence was also a further piece of evidence that the applicant participated in the joint criminal enterprise. The boat evidence was relevant and was properly admitted.
The applicant did not develop the submission that the boat evidence be excluded pursuant to s 137. It suffices to dispose of that submission that the boat evidence had probative value as described above, and that no prejudice (save for that probative value) flowing from its admission was identified.
The appellant further argues under this ground that, even if the boat evidence was admissible, the boat evidence was relied upon by the prosecutor as part of the evidence of incriminating conduct, and thus should have been accompanied by appropriate directions under ss 25 and 26 of the Jury Directions Act 2013 (‘JDA’). We will deal with that submission under ground 1B, below.
Leave to appeal on ground 1A should be refused.
Ground 1B — Incriminating conduct
Under this ground, the applicant argues that a substantial miscarriage of justice occurred as a result of the trial judge’s failure to give a direction to the jury on the use of the evidence. For the reasons that follow, we would grant leave to appeal on this ground.
Section 22 of the JDA relevantly defines the following terms:
conduct means the telling of a lie by the accused, or any other act or omission of the accused, which occurs after the event or events alleged to constitute an offence charged;
incriminating conduct means conduct that amounts to an implied admission by the accused—
(a)of having committed an offence charged or an element of an offence charged; or
(b) which negates a defence to an offence charged; …
The applicant’s primary submission is that the prosecution at trial relied on the impugned evidence as evidence of incriminating conduct and that the judge was therefore required to give a direction pursuant to s 25 of the JDA. The judge’s failure to give that direction was said to give rise to a substantial miscarriage of justice.
In the alternative, the applicant submits that, even if the prosecution did not rely on the impugned evidence as evidence of incriminating conduct, the risk that the jury would use the evidence as evidence of incriminating conduct was such that a direction was necessary to avoid a substantial miscarriage of justice. The failure to give that direction, pursuant to s 15 of the JDA, was said to result in a substantial miscarriage of justice.
In his ground, the applicant refers to the following four pieces of evidence said to have given rise to the need for directions:
(a) the purchase of the Nissan Navara;
(b) the cleaning of the HiAce van at the car wash in Glen Iris;
(c) the purchase of clothing items at Target; and
(d) the purchase of the boat.
Items (b), (c) and (d) are all facts which satisfy the definition. However, item (a), the purchase of the Nissan, took place before the offence charged. During the oral hearing, counsel for the applicant submitted that an offender can manifest an intention to commit an offence in the same way that an offender can manifest a consciousness of guilt after an offence.[97] Whether or not that is so, pre-offence conduct is not incriminating conduct within the meaning of the JDA and cannot found a direction under pt 6. Although no application to amend item (a) was made during the hearing, we shall assume for the purpose of argument that it was intended to refer to the ‘use of the Nissan Navara’ after the deceased’s death. All of the items may then be regarded as post-offence conduct.
[97]The applicant cited R v Appleby (1996) 88 A Crim R 456, for the proposition that an inference of consciousness of guilt may flow from conduct before or in the course of committing an offence.
For the resolution of this ground, it is necessary to review the treatment of the applicant’s post-offence conduct during the course of the trial.
Course of the trial
The Crown initially sought to rely on the evidence of the applicant’s post-offence conduct as evidence of incriminating conduct. Before the trial, the prosecution filed a notice of evidence of incriminating conduct (‘the Notice’) pursuant to s 23(1) of the JDA. In the Notice, the Crown stated that it intended ‘to adduce evidence of conduct that it proposes to rely on as evidence of incriminating conduct’. The evidence included in the Notice included items (a), (b), (c) and (d) as particularised in the ground of appeal.
However, it became clear during the course of the trial that the Crown was not relying on the evidence of the applicant’s post-offence conduct as evidence of incriminating conduct, that is, as conduct by which the applicant impliedly admitted his guilt. Rather, the Crown relied on the post-offence conduct in combination with his pre-offence conduct to demonstrate that the applicant was a party to the joint criminal enterprise to take away and kill the deceased and that he had assisted in the implementation of that enterprise.
During pre-trial argument, the prosecutor clarified the Crown’s position in respect of the post-offence conduct as follows:
[PROSECUTOR]: I would be also arguing though even though the purchase of the clothing and the boat and so forth and the cleaning of the car may occur after death, I would be submitting if the jury were satisfied that the accused Lowe participated in those events, then that would be evidence that they could use to infer that he had knowledge from the start. In other words, he wouldn’t be involved in the clean-up if he hadn’t been involved in the planning.
HIS HONOUR: And do you put that on the footing that it’s consistent with and being part of the plan that was hatched and agreed to from the outset or because it is now denoting a consciousness of guilt about something which had occurred earlier?
[PROSECUTOR]: No, it’s a circumstance, it’s the former, Your Honour.
HIS HONOUR: The former?
[PROSECUTOR]: It’s a circumstantial case and it’s one of the circumstances they can take into account into determining whether or not he had that knowledge at the outset.[98]
[98]Emphasis added.
Upon further inquiry by defence counsel pre-trial, the following was said:
HIS HONOUR: The point you raised was whether these things are being put, or in fact I put it to [the prosecutor] whether these things are being put as — the post-offence matters are being put as consciousness of guilt or as part of the circumstance from which — a part of the plan or carrying out of the plan from which an inference can be drawn, and [the prosecutor] said the latter, that’s it’s not being put as consciousness of guilt.
As I have said, this is a list by me of some of the facts, some of the circumstances which the Crown has lead in this case, some of which are controversial, some of which may not be, but to find the accused guilty you must be satisfied that his guilt is the only reasonable inference that can be drawn from the circumstances established by the evidence. If there is any reasonable explanation of those circumstances which is not consistent with the — sorry, if there is any reasonable explanation of those circumstances which is consistent with Matthew Lowe’s innocence, then the prosecution will not have proved his guilt beyond reasonable doubt and you must acquit him.
In determining whether an inference is a reasonable inference, you must consider the evidence as a whole. Do not disregard an item of evidence because when considered alone it does not support a reasonable inference. Look instead at all of the evidence together. One piece of evidence may resolve any doubts you have about another piece of evidence. When all the pieces of evidence are taken into account, you may become certain of a particular conclusion that would not be reasonable to reach if you considered those items separately.[139]
[139]Emphasis added.
His Honour continued:
I will come soon to a fuller summary of the way in which each side put its case but the defence says there are a whole range of plausible theories open on the evidence that could explain many of the facts relied upon by the Crown and yet be consistent with Mr Lowe’s innocence of the crimes charged. It intimated that those circumstances could include that Mr Faugere did not go at all with the van on that night or may have even been back the following night and yet not noticed, or had left for other reasons or had gone with the van willingly for a mutual drug related purpose, or that the car and the van were used for illicit drug purposes, or that Mr Seckold might have had a purpose that Mr Lowe knew nothing about, and so on.
The important thing is the burden is on the prosecution to exclude all reasonable hypotheses that are inconsistent with the accused’s guilt, and if the prosecution cannot do so, you must give the accused the benefit of the doubt and find him not guilty.[140]
[140]Emphasis added.
During the oral hearing counsel for the applicant disputed that these directions as to circumstantial evidence were sufficient to guard against the risks that are posed by evidence of post-offence incriminating conduct. He submitted that if it were otherwise, no incriminating conduct direction would ever be required in a circumstantial case. During the course of argument, he acknowledged however that the directions given by the trial judge as to circumstantial evidence and inferential reasoning, made the argument that the s 27 directions were necessary to avoid a substantial miscarriage of justice more difficult.
Whether directions are necessary to ensure fairness in any trial will depend on the issues in dispute. The primary issue at trial, as we have said, was whether the applicant was a party to and helped to implement the plan to kill the deceased and then to conceal the evidence and dispose of his body. The judge’s directions quite properly focused the jury’s attention on the question of whether the circumstantial evidence relied upon by the Crown excluded any innocent hypothesis for those circumstances. Applying this direction to the post-offence conduct, the jury would have had to ask whether it was proof of his ongoing participation in the joint enterprise or whether there was an innocent explanation for the applicant’s post-offence conduct. Such innocent explanation as might not have been excluded, would have been inconsistent with the applicant having acted as though he recognised his guilt, had the jury adverted to the possibility of such reasoning.
Given the centrality of the issue as to what inferences could be drawn from the applicant’s conduct, directions under s 27 were not necessary to ensure that the evidence of incriminating conduct was not improperly used. As s 27(2) provides, even if such directions had been sought, they were not required where there is no substantial risk that the jury might use the evidence as implied admissions.
(iii) Forensic decision by defence counsel not to seek directions
Our conclusion that the jury would not have used the applicant’s post-offence conduct to infer consciousness of guilt, is fortified by defence counsel’s conduct in the course of the trial. As we have explained, prior to the trial the Crown gave notice that it intended to rely on the applicant’s post-offence conduct as evidence of incriminating conduct. Defence counsel objected to that use of the evidence at the outset of the trial and again at the close of evidence. The prosecutor then came to the view that the Crown was relying on the post-offence conduct to establish that the applicant participated in the joint criminal enterprise and not as an implied admission. The trial judge indicated his agreement with that conclusion, and defence counsel made no further objection to that use of the evidence.
We reject the contention that it should be concluded that defence counsel did not make a forensic choice or that he failed to turn his mind to the need for such directions. Whether a decision is made for forensic reasons is to be assessed objectively, and weight will be given to decisions made by counsel — particularly experienced counsel — immersed in the trial. As this Court said in Knowles v The Queen,[141] discussing the decision of the High Court in TKWJ v The Queen:[142]
TKWJ reinforced earlier decisions which had emphasised that where it is contended on appeal that a trial went wrong because of counsel’s ‘flagrant incompetence’, what must be investigated is whether the process failed so as to result in a miscarriage of justice; rather than upon why — that is, the alleged incompetence of counsel — the process failed. But the importance of TKWJ is that it was stated or agreed in by four of their Honours, with more or less emphasis, that in determining whether the process failed, the subjective reason why counsel took the course complained of — it might be not seeking a particular direction, or making a particular submission, or not adducing particular evidence — was ordinarily irrelevant. The question whether the process failed, in the kind of case now under discussion, was to be resolved by deciding whether the course taken, objectively ascertained, was capable of explanation as having been taken for the purpose of obtaining a forensic advantage (although the fact that a forensic advantage might be objectively perceived did not necessarily mean that there had been no miscarriage of justice). Framing the enquiry that way gave due recognition to the fact that counsel will likely make many forensic decisions in the course of a trial, and an accused is ordinarily bound by the way in which his or her counsel conducted the trial.[143]
[141][2015] VSCA 141 (‘Knowles’).
[142](2002) 212 CLR 124 (‘TKWJ’).
[143]Knowles [2015] VSCA 141, [131] (citation omitted) (emphasis in original).
After extensive reference to authority, the Court in Knowles concluded that, while the subjective reason why counsel acted as he or she did might be relevant to the objective inquiry of whether a course taken was the result of a rational forensic decision in some exceptional cases, ultimately the issue must not obscure the real question of whether there has been a miscarriage of justice.[144]
[144]See ibid [131]–[143].
At the hearing, counsel for the applicant asserted as fact from the bar table that the absence of a request for a direction by trial counsel under s 27 was not deliberate forensic decision. Trial counsel had apparently been asked by the applicant’s lawyers to sit in court at the oral hearing of the appeal, in order to give some authenticity to the submission that he had made no deliberate forensic choice. There was nothing raised before the Court to suggest that there was some exceptional circumstance that would have permitted the Court to go behind possible objectively ascertained explanations to admit counsel’s subjective reasons. If exceptional circumstances had existed, an affidavit was required that set out those exceptional circumstances and the explanatory reasons for the course that was taken. That in turn, would afford the opposing party the opportunity to challenge those circumstances and any such an explanation. It is not appropriate procedure to assert from the bar table as fact, that the failure to request a direction was an error and not a forensic decision, or to invite the Court to infer from the presence of trial counsel that the assertion was soundly based.
In the applicant’s written case the sole argument was that a direction under s 25 should have been given. It was said that it could not be sensibly contended that counsel’s failure to insist upon a s 25 direction was a matter of deliberate forensic choice. The arguments now relied upon that a directions should have been given under s 27 and that the failure of defence counsel to ask for those directions was not a deliberate forensic choice were not raised at all in the written case.
Defence counsel demonstrated during the course of the trial that he was alive to the possibility of the use of the post-offence conduct as evidence of incriminating conduct. The exchanges between counsel and the judge show that once counsel was assured by the Crown and the judge that the post-offence conduct was not to be treated as an implied admission, he did not seek any directions that would have drawn the jury’s attention to the possibility that his conduct could be viewed as behaviour that ‘makes him [the person] look guilty’ or that the jury should not reason that because he ‘engaged in the conduct’ that he is ‘guilty of the offence charged’.[145] Viewed objectively there was an obvious forensic reason why counsel may not have wanted the directions set out in s 27(1) (a) or (b). On the other hand, if counsel, steeped in the atmosphere of the trial, had perceived a sufficient risk of the improper use of the evidence, a direction pursuant to s 27 would have been sought. The fact that he did not do so supports our view that the jury was unlikely independently to engage in that reasoning in the circumstances of this particular case.
[145]See JDA s 27(1).
As we have said, defence counsel’s failure to request a direction under s 27 does not foreclose a conclusion that a s 27 direction was required pursuant to s 15. A forensic decision by defence counsel not to request a direction under s 27 may be indicative of counsel’s understanding of the issues in the trial, the way in which the prosecution has conducted its case and the manner in which counsel perceives that the jury may use the evidence.
In Ibrahim, Eames JA observed:
It is important when considering arguments on appeal, especially when the trial was conducted by different counsel to those arguing the appeal, that the reality of the trial not be lost, and that the issues on which battle was joined before the jury are not treated as of mere passing relevance to an academic appellate debate.[146]
[146](2003) 7 VR 141, 154 [50].
His Honour later added:
In assessing whether the jury might have adopted a consciousness of guilt approach in considering the post-shooting conduct the court is entitled to have regard to the way the prosecution conducted the case, and the fact that apart from the two brief ‘consciousness’ comments identified above (which, in my opinion, have far more significance for appellate lawyers and judges than would have been given to them by the jury), the trial was conducted without reference to consciousness of guilt. As McHugh and Gummow JJ held in Dhanhoa, when discussing the fact that a direction as to lies in consciousness of guilt had not been sought nor given:
This strongly indicates that it did not occur to those present at the trial that lies as consciousness of guilt was an issue in the trial or that, from the conduct of the case, the jury might think that lies told by the appellant were evidence of a consciousness of guilt.
Similar considerations apply in this case, with respect to post-shooting conduct, and particularly so, having regard to the trial experience of the judge and counsel in the case.[147]
[147]Ibid 170 [106] (citations omitted).
Those observations are apposite to the present case. The Crown case was that the applicant was a participant in the joint criminal enterprise, and relied on the post-offence conduct as part of its circumstantial case to establish that participation. The defence rejected the Crown case absolutely and submitted to the jury that no such participation was made out. That was the critical issue at trial and that was the issue in respect of which the jury were directed to use the evidence of the applicant’s post-offence conduct.
The applicant argues that the decision not to request a direction could not have rested upon a desire to avoid further emphasis being given to that evidence, as it was already central to the Crown case. We do not accept that argument. While the evidence of the applicant’s post-offence conduct was prominent in the Crown case, its possible use for consciousness of guilt purposes was not adverted to by the prosecution. Defence counsel was entitled to conclude that directions under s 27 would alert the jury, for the first time, to the possibility that the post-offence conduct could also constitute discrete evidence that the applicant was conscious of his guilt.
The importance of a forensic decision by trial counsel is heightened by the regime established by the JDA. In Xypolitos,[148] this Court emphasised that a stringent interpretation of s 15 is supported by the underlying purpose of the Act, that responsibility for the determination of the issues in the trial should fall squarely upon counsel and that counsel should request any directions that are necessary.[149]
[148][2014] VSCA 339.
[149]Ibid [39]–[43].
The issue of the possible use of the applicant’s post-offence conduct as incriminating conduct was the subject of extensive discussion during the trial. The absence of a request for a direction under s 27 was entirely consistent with a sound forensic judgement that there was no realistic risk of misuse of the evidence. It was also consistent with a forensic decision that such risk as might have existed was outweighed by the disadvantage of directions that drew attention to the fact that the applicant may have behaved in a way that made him look guilty (s 27(1)(a)) and that the jury should not conclude from that evidence that he was guilty (s 27(1)(b)).
Although we would grant leave on ground 1B, the ground is not made out as we do not consider that s 27 directions were necessary to prevent a substantial miscarriage of justice.
Ground 2 — Unsafe and unsatisfactory
Under this ground, the applicant submits that the verdict of guilty was unsafe. We do not accept that submission.
The principles that apply to an unsafe and unsatisfactory ground are well known. The question is whether it was reasonably open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt.[150] For an appeal on this ground to be successful, the appellate court must conclude that the jury must, not might, have entertained a doubt about guilt.[151] There must have been a ‘solid obstacle’ to a finding of guilt and no open path to conviction.[152]
[150]M v The Queen (1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson and Toohey JJ), affirmed in MFA v The Queen (2002) 213 CLR 606, 614 (Gleeson CJ, Hayne and Callinan JJ), 624, 634 (McHugh, Gummow and Kirby JJ).
[151]Libke v The Queen (2007) 230 CLR 559, 596–7 (Hayne J, with whom Gleeson CJ and Heydon J agreed).
[152]See Klamo v The Queen (2008) 18 VR 644, 654 [40] and the cases there cited.
The Crown case at trial was that was that the applicant was a party to a joint criminal enterprise to take away the deceased and then to kill him or cause him really serious injury. It is unnecessary to repeat again the details of the Crown case.
The Crown’s case, though circumstantial, was overwhelming. As described earlier in these reasons, the trial judge listed nineteen circumstantial facts relied on by the Crown in his charge. On appeal the Crown provided a schedule setting out those facts and the underlying evidence. It is unnecessary to recite the list in its entirety, but the following facts with salience to the case against the applicant may be emphasised (numbered as in the Crown’s schedule):
(1) Circumstantial fact 3: Seckold was the boss of the drug manufacturing and distribution business and Lowe was close to him.
(2) Circumstantial fact 6: The partial remains of the deceased’s body were discovered on 7 February 2012 in the back of a Nissan Navara at a drug laboratory in St Leonards conducted by Seckold, Lowe and others.
(3) Circumstantial fact 7: The Nissan Navara was purchased by the applicant under a false name three days before the deceased disappeared.
(4) Circumstantial fact 9: The HiAce van, hired by Tiberi with the applicant two days before the deceased was last seen, was detected outside the premises where the deceased was staying in the days before he was last seen, including the early hours of the morning after he was last seen.
(5) Circumstantial fact 11: The HiAce van returned to Melbourne from Mansfield on 20 October 2011, after the period on 20 October 2011 in which the Crown alleged the deceased was killed, and was washed inside and out at a car wash the next day.
(6) Circumstantial fact 12: Clothes were purchased at Target in Camberwell, enough for a number of males, on 21 October 2011.
(7) Circumstantial fact 13: The HiAce van and a BMW motor vehicle registered to the applicant were detected as travelling closely together on the afternoon following the car wash and the clothing purchase.
(8) Circumstantial fact 14: Purchase of a boat late at night on 21 October 2011 to be used in connection with the disposal of the deceased’s partial remains.
(9) Circumstantial fact 15: The name of the vendor of the boat and his address were found on a handwritten note in the Nissan Navara in the applicant’s handwriting.
(10) Circumstantial fact 18: Some of the clothes purchased at Target were found in the Nissan Navara and had DNA consistent with that of the applicant’s and Seckold’s DNA.
In his written submissions, the applicant argued that the Crown led no evidence as to how the deceased was killed, could not prove that the applicant was present when the deceased was killed and could not prove that the applicant participated in the dismemberment of the deceased’s body. As to the latter two contentions, the Crown put its case on the basis of joint criminal enterprise; it was unnecessary to prove that the applicant was present when the deceased was killed or that the applicant participated in the dismemberment. All that the Crown needed to prove was that the applicant was a participant in, and helped to implement, the joint criminal enterprise.
The applicant’s true argument under this ground repeats his defence at trial that the Crown case was fundamentally unsound and that the circumstantial evidence was insufficient to establish to the criminal standard that the applicant was a participant in the joint criminal enterprise. The first contention, that the Crown led no evidence about how the deceased was killed, was a component of this submission. In oral argument, counsel for the applicant submitted that this was a case in which the circumstances established by the evidence raised suspicion but fell short of the requisite standard necessary to find guilt.
We reject that submission. There was sufficient evidence to support each of the facts relied upon. Taken together, the facts support a conclusion beyond reasonable doubt that the applicant agreed to and did participate in the alleged joint criminal enterprise. As Gummow, Hayne and Crennan JJ reiterated in R v Hillier,[153] a circumstantial case must be assessed as a whole and not in a piecemeal fashion:
It has often been said that a jury cannot be satisfied beyond reasonable doubt on circumstantial evidence unless no other explanation than guilt is reasonably compatible with the circumstances. It is of critical importance to recognise, however, that in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence.
…
Often enough, in a circumstantial case, there will be evidence of matters which, looked at in isolation from other evidence, would yield an inference compatible with the innocence of the accused. But neither at trial, nor on appeal, is a circumstantial case to be considered piecemeal.[154]
[153](2007) 228 CLR 618.
[154]Ibid 637–8 (citations omitted).
The combined force of the circumstantial evidence provided a compelling basis for the jury to conclude that the applicant was guilty of murder as a party to the joint criminal enterprise. In a circumstantial case such as the present, the fundamental principle of the criminal law is prominent that the jury is the body entrusted with the primary responsibility for determining guilt or innocence, and has the benefit of having seen and heard the witnesses.[155] The applicant has not satisfied the test for appellate review of a guilty verdict. The jury was not bound to have reasonable doubt. There was no obstacle to conviction.
[155]SKA v The Queen (2011) 243 CLR 400, 405; R v Nguyen (2010) 242 CLR 491, 499.
The availability of Weissensteiner reasoning
Our conclusion above is sufficient to dispose of this ground. However, there is an additional factor that supports the conclusion that the verdict was not unsafe: the absence of evidence from the applicant to rebut the Crown’s circumstantial case. After the oral hearing the Court invited the parties to make further submissions as to whether we should take account of the absence of any explanation by the applicant for any of the circumstantial facts. This raises the issue addressed in Weissensteiner v The Queen[156] and RPS v The Queen.[157] The Crown did not seek to make use of such reasoning either at trial or before us. It should be noted that such reasoning is now prohibited by s 42(b) of the Jury Directions Act 2015.
[156](1993) 178 CLR 217 (‘Weissensteiner’).
[157](2000) 199 CLR 620 (‘RPS’).
In our view, in the present trial it would have been open for the jury to use that form of reasoning to buttress its conclusion as to the applicant’s guilt. If it were necessary to do so, this Court would also employ such reasoning.
Weissensteiner stands for the proposition that the failure of an accused at trial to give evidence about matters peculiarly within his or her knowledge can in some cases be taken into account by the jury (and an appellate court), when evaluating the strength of the case against the accused. In that case, Mason CJ, Deane and Dawson JJ observed:
In particular, in a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused.[158]
[158](1993) 178 CLR 217, 227–8.
Subsequent cases have made clear that this principle should be applied with circumspection. In RPS, a majority of the High Court explained that cases in which it can be used are rare:
It is necessary to keep at the forefront of consideration that the mode of reasoning which is described proceeds from the premise that the person who has not given evidence not only could shed light on the subject but also would ordinarily be expected to do so.
…
[I]t will seldom, if ever, be reasonable to conclude that an accused in a criminal trial would be expected to give evidence. The most that can be said in criminal matters is that there are some cases in which evidence (or an explanation) contradicting an apparently damning inference to be drawn from proven facts could come only from the accused. In the absence of such evidence or explanation, the jury may more readily draw the conclusion which the prosecution seeks.[159]
[159](2000) 199 CLR 620, 632–3 (emphasis in original).
In his further submissions, the applicant contends that Weissensteiner reasoning was not available to the jury in his trial. He says that his failure to give evidence did not represent a failure to disclose additional facts known only to him, and that even if there were facts peculiarly within his knowledge, the deficiencies in the prosecution case were sufficient to account for his remaining silent and putting the Crown to proof. The applicant argues that it cannot be said that, in the circumstances of the case, he would have been expected to give evidence.
The Crown introduced a significant amount of circumstantial evidence that supported an inference that the applicant was a party to a joint criminal enterprise to murder the deceased. The Crown submits, and we accept, that there were a number of facts that could have explained or contradicted the evidence against the applicant that were peculiarly within his knowledge, including:
·his purpose in purchasing the Nissan Navara and doing so under a false name;
·his purpose in being involved in the rental of the HiAce van;
·the reason for his vehicle travelling in convoy with the HiAce van on the CityLink tollway between Camberwell and the exit at Racecourse Road, Flemington, after the van had been washed and the clothes purchased;
·his purpose in being involved in, and the circumstances surrounding, the purchase of the boat, and in particular the presence of his handwriting on the note found in the Nissan Navara; and
·the circumstances in which DNA consistent with his came to be deposited on items of clothing found in the Nissan Navara.
This use of the absence of evidence from the applicant is consistent with prior cases in which the absence of evidence from an accused has been used in this way. In R v Neilan,[160] which was decided before Weissensteiner, the offender was convicted of the murder of his wife. The applicant’s defence was that the murder had been committed by unknown intruders. He did not give evidence at trial. The Full Court (Young CJ, Brooking and Marks JJ) found that the evidence was sufficient to reject the submission that the conviction was unsafe and unsatisfactory. However, the Court continued:
There is however another factor which it is necessary to mention. The accused stood mute. While it is true that he was not obliged to give evidence and his failure to do so could not be the subject of comment by the judge or prosecutor and that the failure could not be regarded as evidence of guilt, it was not irrelevant for all purposes. It is not irrelevant for all purposes here. There was no evidence to suggest that the applicant was suffering from any disability which prevented him from giving evidence. The jury was entitled as are we to consider that the silence of the accused permitted a more ready acceptance of the Crown case.
Moreover, the silence of an accused will be a greater weight where it appears that he alone is able to explain the true facts surrounding a relevant incident.[161]
[160][1992] 1 VR 57 (‘Neilan’).
[161]Ibid 65.
In Weissensteiner itself, the offender was convicted of the murder of two persons and the theft of their boat. He had set off with the two deceased on a cruise in the boat, and the two deceased were not seen again. The offender did not give evidence. The High Court endorsed a comment that the trial judge gave to the jury, to the effect that an inference that the offender was guilty might be more safely drawn because the offender had not given evidence of relevant facts which must be within his knowledge. As was said later by this Court, the facts of Weissensteiner ‘were quite special. In truth, they cried out for an explanation, on the part of the accused, which only he could provide, but which was not forthcoming’.[162]
[162]Burke v The Queen (2013) 40 VR 161, 168 [43].
In R v Doherty,[163] the offender was convicted of the murder of his wife. The deceased was bludgeoned to death in a bedroom of her house. The evidence was that the deceased was killed at some time during the day, and the offender was not able to verify his movements for the whole span of time within which it was alleged that the deceased was killed. The case against the offender was circumstantial, and he did not give evidence at trial. Winneke P (with whom Vincent JA and Ashley JA agreed) concluded that the absence of evidence from the offender added weight to the prosecution case, citing Neilan and Weissensteiner.
[163](2003) 6 VR 393.
As a final example, in Rice,[164] to which we have already referred, Brooking JA observed that in the circumstances of the case the absence of evidence from the offender strengthened the conclusion that all hypotheses consistent with innocence should be rejected:
The present case moreover cries out for the application of the principle that in considering whether hypotheses consistent with innocence are rational or reasonable regard may be had to the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused: Weissensteiner v R; R v Neilan. Why should the jury be deterred from rejecting the hypothesis of death from natural causes and any other hypothesis consistent with innocence when the applicant did not, either at any time before the trial or during the trial, say a single word tending to support an innocent explanation of the death?[165]
[164][1996] 2 VR 406.
[165]Ibid 421 (citations omitted).
It was open to the jury, as it is open to us, to ask that same question in the circumstances of this case.
Conscious of the limited circumstances in which such reasoning may be employed, the present is precisely the kind of case in which Weissensteiner reasoning is available. The Crown case against the applicant was circumstantial. The defence case amounted to a submission that there were alternate explanations for the facts relied upon by the Crown. The jury was required to consider competing hypotheses in order to reach a verdict. The circumstantial evidence of his conduct, as we have said, strongly supported a conclusion that the applicant was a participant in the joint criminal enterprise. The absence of evidence from the applicant in respect of these facts strengthens the Crown case against him. Only the applicant could contradict the damning inferences to be drawn from his proven conduct. Although it was not necessary that we so conclude, we are satisfied that, in the circumstances of this case, the jury would have been entitled (as are we) to take into account the failure of the applicant to proffer an innocent explanation for his proven conduct when evaluating the strength of the Crown’s case.
Leave to appeal on ground 2 must be refused.
The appeal must be dismissed.
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