McDonald v The Queen
[2013] VSCA 128
•27 May 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2012 0036
| JOHN VINCENT McDONALD | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | BUCHANAN, PRIEST and COGHLAN JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 15 May 2013 |
| DATE OF JUDGMENT | 27 May 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 128 1ST Revision, 27 May 2013 [catchwords and n 17] |
| JUDGMENT APPEALED FROM | [2011] VSC 235 (Hollingworth J) |
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CRIMINAL LAW – Application for leave to appeal against conviction – Applicant convicted of one count of murder – Victim was the Applicant’s former wife – Victim disappeared in 1986 and body never found – Applicant’s soliloquies captured on listening devices as consciousness of guilt or implied admissions – Whether the prosecution led that evidence without a proper basis in circumstances where it disclaimed reliance on consciousness of guilt reasoning – Whether the prosecution proffered an argument in final address that relied on consciousness of guilt reasoning - Whether late change in prosecution case – Whether the trial judge failed to direct the jury as to what use they could make of the soliloquy evidence – Application for leave to appeal against conviction refused.
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| Appearances: | Counsel | Solicitors |
| For the Applicant | Mr R O’Neill | Robert Stary Lawyers, Footscray (Mr T Shocker) |
| For the Respondent | Mr T Gyorffy SC | Mr C Hyland, Solicitor for Public Prosecutions |
BUCHANAN JA:
I agree with Priest JA.
PRIEST JA:
Introduction
In my opinion the applicant has failed to demonstrate that his conviction for murder is vitiated by error. Accordingly, for the reasons that follow, I would refuse this application for leave to appeal against conviction.
Conviction and Ground of Appeal
Following a trial of some 28 days’ duration in the Supreme Court, on 19 April 2011 the applicant was convicted of murdering Marlene McDonald (MM).
On 7 June 2011 he was sentenced to be imprisoned for 19 years, upon which a non-parole period of 13 years was fixed.
Three alleged co-offenders, Gregory Bone (‘Bone’), Donald Binion (‘Binion’) and Andrew Ardley (‘Ardley’), had earlier pleaded guilty to kidnapping MM. Ardley also pleaded guilty to sexually assaulting MM. Each was sentenced to two (2) years’ imprisonment for kidnapping; and Ardley received three (3) months for the sexual assault, one (1) month of which was to be served cumulatively on the kidnapping charge. Bone’s and Binion’s sentences were to be suspended after serving nine (9) months’ imprisonment, and Ardley’s after serving ten (10) months. Bone, Binion and Ardley each undertook to give evidence against the applicant.
There is a single ground of appeal accompanied by four particulars:
1. There was a substantial miscarriage of justice as a result of:
(a)The prosecution’s late change in position relying on the contents of the applicant’s soliloquies as consciousness of guilt or implied admission;
(b)The prosecution having led that evidence without a proper
basis, other than as an implied admission, in circumstances where it disclaimed reliance on consciousness of guilt reasoning;
(c)The prosecution proffering an argument in final address that relied on consciousness of guilt reasoning; and
(d)The trial judge failing to direct the jury as to what use they could make of the soliloquy evidence.
Overview
MM and the applicant were married, but separated in 1985. They had five children. The applicant had custody of the two eldest children and MM had custody of the younger three.
During the weekend of 13 and 14 December 1986, MM disappeared. She has not been seen since. Her car was left at Truck City, where she worked as a waitress.
Police originally investigated MM’s disappearance as a ‘missing person’ case with no result. The case was not investigated with the thoroughness it deserved. It was re-opened as a ‘cold case’ in 2003, and again in 2007 to 2008. As part of the new investigation the applicant was questioned and listening devices were installed in his car and his house.
Importantly, in 2008, a fingerprint taken from MM’s car was identified as belonging to Bone.
Summary of the prosecution case
In essence, the prosecution’s case at trial was that MM was abducted from her home at 40 Wattle Grove, Reservoir, during the weekend of 13 and 14 December 1986, by Bone, Binion and Ardley. The abduction had been arranged by the applicant, and was for the purpose of the applicant either killing MM or arranging for a third party to do so. Bone’s, Binion’s and Ardley’s evidence was relied upon to establish that the three kidnapped MM, and that they did so at the instigation of the applicant.
MM’s body has not been found. The prosecution was not able to establish directly who killed MM. It was the prosecution’s case that it was either the applicant or some other unknown person or persons solicited by him. The prosecution could not specify a time, location or cause of death.
Certain ruminations of the applicant recorded by the use of listening devices,[1] as to what ‘Bino’ (Binion) might say to the police, were highly relevant to establishing that the applicant knew that ‘Bino’ was involved in kidnapping MM.
[1]Exhibit 16.
Summary of the defence case
The defence case was that there is no evidence that MM is dead. There is no body. It is plausible that she could have run off with a truck driver.
Alternatively, if MM has been killed, any number of other people could have been responsible. Possible culprits include MM’s brother, Leon McEntee, who had assaulted her previously, and Patrick Williams, who was with MM the night she disappeared (and with whom she had argued).
The issue in the trial
The principal issues in the trial were, had the prosecution proved to the criminal standard that MM is dead? If the answer to the first question was ‘yes’, had the prosecution proved that the applicant either killed MM or had her killed?
The evidence
Relationship evidence
The prosecution led evidence to establish that the applicant bore antipathy towards his estranged wife, MM, and that he had a motive for getting rid of her.
MM and the applicant married on 16 April 1970. Their relationship soured, and they separated on 14 November 1985. The applicant took custody of the two eldest of their five children, and his wife took custody of the three youngest. MM commenced working at Truck City, a truck stop in Campbellfield, in or around April 1985.
Evidence suggested a jealous and spiteful obsession on the part of the applicant directed towards his wife. The applicant came to believe that MM had a sexual relationship with a truck driver (or truck drivers) who frequented Truck City. While she worked there, the applicant would sometimes attend and remain outside. On one occasion, a note was left on MM’s car that included the words ‘your dead’ (sic). Certain hearsay evidence showed that MM attributed the note to the applicant. There was evidence that the applicant called his wife a prostitute and a drug dealer. He bore her anger and resentment, and was physically violent to her. On occasions, both before and after the separation, MM’s family members and co-workers would observe bruising on her. Evidence was led that MM attributed the bruising to assaults by her husband. There was an occasion when the applicant tampered with MM’s car, leaving her unable to drive.
Significantly, in January 1986, MM commenced proceedings seeking custody of the three youngest children. By September 1986, the applicant had sought to oppose the custody proceedings, and in turn had himself sought custody of all five children. Sometimes when the younger children returned to MM after access visits they would hand her notes in their handwriting, written at the prompting of the applicant, referring to her in disparaging terms.
On 26 May 1986, Leon McEntee, her brother, severely assaulted MM and she was hospitalised. The applicant visited Leon McEntee while he was on remand at Pentridge Prison.
The disappearance
With one possible exception, there has been no sighting of, or contact from, MM since 14 December 1986.
The possible exception flows from the evidence of a witness, John Delphin, that in 1987 he showed a photo of MM to the manager of a caravan park in Ipswich, Queensland, who said that she had seen someone a week earlier who looked like the person in the photo.
Another witness, Dorothy Orwin, testified that she saw MM dropped off at her home on the evening of 13 December 1986 by Bruce Williams and that she saw Williams drive away. Ms Orwin said she subsequently saw MM’s car being driven away from her home in a way that was potentially inconsistent with her being the driver. She said that before the car drove away she saw a son of the applicant’s and MM’s, Damian McDonald, come out of the house and speak to someone in the car.
MM had purchased presents for her children for the forthcoming Christmas of 1986. At the time she disappeared her vanity bag remained inside her house. This was thought to be unusual as she normally went nowhere without it.
Bone, Binion and Ardley
The applicant knew Binion through the Whittlesea Cricket Club. He offered to pay money if Binion and his two friends, Bone and Ardley, kidnapped MM for him. They then being aged around 17 or 18 years (and perhaps needing money to fund their drug habits) agreed to do so. Bone, Binion and Ardley gave evidence that during the night of 13 and early hours of 14 December 1986, they broke into MM’s home. They gave evidence that when she arrived home they tied her up and abducted her by placing her in the back of the applicant’s van and covering her with a blanket. Bone drove MM’s car to Truck City and abandoned it there. The three then drove her to a house at Whittlesea. Binion gave evidence that the applicant was present at the house and that he then accompanied the three when MM was taken to Bunker Hill truck stop. In a version differing from Binion’s, Bone gave evidence that the applicant did not go to the house, but that MM was handed over to the applicant and another man in Whittlesea. Binion gave evidence that when he was hired to kidnap MM, the applicant told him that it was for the purpose of sending her away to an asylum. Although Binion was paid an amount of money he could not recall how much. He had recruited Bone and Ardley.
Surveillance device material
The applicant had the unusual habit of verbalising his thoughts out loud. From 5 December 2007, the police had in place telephone intercepts on the applicant’s telephone, and had installed listening devices in his house and car. In these recordings, the Applicant is heard musing or ‘soliloquising’ about various matters. Excerpts of the recordings were played to the jury, including ‘soliloquies’ in which:
·the applicant’s animosity towards MM (so the prosecution argued) is demonstrated;
·the applicant displays knowledge of the circumstances of the abduction which (so the prosecution submitted) he could only have possessed if he were involved;
·the applicant refers to ‘Bino’ (Binion), this being recorded at a time when the police had no knowledge of Binion’s involvement in the abduction;
·the applicant refers to ‘Bino’ making up a story;
·the applicant refers to MM’s body being found in the Kinglake Mountains and the Mount Disappointment area;
·the applicant expresses concern about the possibility of his DNA being found on items associated with the kidnapping of MM;
·the applicant refers to a ‘shallow grave’ and to cameras being set up at a grave site; and
·alone, and in conversations with others, the applicant speculates and theorises as to what may have happened to MM, including theorising as to the potential involvement of others (in particular, Leon McEntee, his son Damian McDonald, and Bruce Williams).
Lies and records of interview with police
The applicant participated in two records of interview, only the first of which was admitted into evidence and played to the jury.
It was submitted by the prosecution that the applicant told lies in that record of interview and that those lies could be relied on by the jury for the purpose of assessing the applicant’s credibility in relation to the other answers given by the applicant in the interview. Two further alleged lies, arising out of the evidence of Des Hall and Brian Hedger, were also relied upon.
The defence disputed that the applicant had lied.
Various alleged lies relied upon by the prosecution included that the applicant had told:
·the police that he never laid a finger on MM and there was never any violence;
·the police in his record of interview that the woman across the road saw four men enter the house and leave with an object wrapped in a blanket, and that he read this account in a newspaper article;
·the police that MM had asked him to take custody of the children;
·the police that he was the one who started the Family Court proceedings;
·the police that he got a lot of information from Pat and Helen at Truck City – whom he said he knew fairly well – but whom he later said were drug traffickers that he hardly knew;
·the police that Maria Korp saw his wife talking to a blonde haired fellow somewhere in Queensland;
·the police that his wife was pregnant at the time of her disappearance;
·Des Hall that he had an alibi for the night of MM’s disappearance (he having told Hall that the police came to his house in the early hours of the morning to tell him his wife was missing); and
·Brian Hedger that he had played cricket, not (as first claimed) at Wallan, but at Panton Hill; and that after the game, some of the players had come back to his place and stayed there to have a drink (the applicant having told police that after playing cricket he came home and just watched videos).
Applicant’s submissions on the application for leave to appeal
The edifice of the applicant’s case is propped up by four pillars, each of which, in one way or another, relates to the soliloquy evidence (as it was so called):
· first, it is submitted that there was a late change in the prosecution’s position, in that at an advanced stage of the trial it sought to rely on the contents of the applicant’s soliloquies as evidencing consciousness of guilt;
· secondly, it is contended that the prosecution led the soliloquy evidence without a proper foundation, and in circumstances where it disclaimed reliance on consciousness of guilt reasoning;
· thirdly, it is submitted that the prosecutor proffered for the first time in his final address an argument that relied on consciousness of guilt reasoning; and
· fourthly, it is put that the judge wrongly failed to direct the jury as to what use they could make of the soliloquy evidence.
In endeavouring to establish and support the four pillars of the applicant’s case, his counsel submitted that the jury were played a number of recordings of the applicant ruminating about a range of matters said to be connected with the disappearance of MM, but the prosecution had not specifically opened the use to be made of much of this material, merely opening to the effect that the recordings showed that the applicant had knowledge of the circumstances of the kidnapping of the deceased. It was argued that the prosecution had disclaimed any reliance on consciousness of guilt reasoning in relation to the evidence.
It was pointed out by counsel that, despite this, on day 15 of the trial, after the majority of the recordings had been played to the jury, the prosecution belatedly identified the difficulty that, while they had disclaimed reliance on consciousness of guilt, they had on proper analysis realised that the only true relevance of the majority of the ‘soliloquy’ material was that it indeed demonstrated the applicant’s consciousness of guilt.[2] Thus at that late point in the trial the prosecution sought to rely on that material as evidence demonstrating consciousness of guilt. After extended discussion on the topic, the prosecution again disclaimed reliance on consciousness of guilt reasoning in relation to the soliloquies, save for those related to dealings with the witness Binion. Notwithstanding this disclaimer, however, the prosecutor addressed the jury to the effect that:
· the applicant had a fear of a discovery of the body and the discovery of the DNA or fingerprints that might be matched to him, and that is how the Leon McEntee suspect theory becomes important;[3]
· the applicant changed his version as to why his DNA might be on the rope and blankets used to tie up MM.
[2]T 1258.
[3]T 1509.
The applicant’s position, it is argued, is strengthened by the undeniable fact that the judge interrupted the prosecutor’s address[4] and raised with him that, despite having agreed that he would not do so, he was relying on a consciousness of guilt argument. After discussion the prosecutor withdrew this argument.[5] It is submitted that he continued, however, to make arguments to the effect that the applicant was concerned that his DNA or fingerprints may be found on items associated with the body.[6] These arguments, so it is contended, can only have been relevant as consciousness of guilt.
[4]T 1513.
[5]T 1533.
[6]T 1534.
The applicant acknowledges, as he must, that the trial judge directed the jury about the issue of implied admissions,[7] and directed that they could not use material from the recordings as implied admissions of guilt. It is contended that she did not, however, direct the jury as to the proper use (or non-misuse) of that evidence. Thus, so it is submitted, the jury were left without assistance as to whether and how that material was relevant. They had spent a day listening to it, almost at the end of the prosecution case.
[7]Charge 1984–9, 2117–8.
There is a substantial risk, so it is argued, that the jury, having been left in the position that they had not been told that the evidence was irrelevant, or how it could be used, would have – without necessarily realising they were doing so – in contravention of the judge’s instructions used the evidence as implied admissions of guilt, or otherwise treated it as corroborative of the applicant’s guilt.
It is submitted that in dealing with the fact that the jury could not take into account conversations aside from those connected with the witness Binion as proof of an implied admission, the trial judge should have – but failed – directed the jury that:
· there was in fact no use to which the majority of those recordings (in particular, the ‘gravesite conversation’ as it was referred to) could be put; and
· the jury were not to use the evidence of the applicant ruminating about the possibility of his DNA being found on the rope or blanket as an implied admission of guilt; or
· if the jury were entitled to so use it, the Edwards[8] direction should have covered that evidence as well as the Binion evidence.
[8]Edwards v The Queen (1993) 178 CLR 193.
The applicant further submits that having drawn the jury’s attention to the way in which the Binion recordings could be used, there was a risk that the jury could be left with an understanding that the recordings could be used in some other non-specified way as proof of the guilt of the applicant. The exception is that some portions might have been regarded as relevant to demonstrating that the accused harboured resentment and anger towards MM. It was argued, however, the majority of those recordings, have no such relevance. In these circumstances, it is submitted, there is a risk that a substantial miscarriage of justice has occurred.
The applicant’s contentions cannot be upheld
Perhaps the most unusual feature of this case was that the applicant frequently conversed with himself out loud. In so doing, he revealed his thinking. Subjects of his discourse with himself included his wife’s disappearance, and what might have happened to her. He rehearsed and role-played conversations he might have with the police, and he speculated as to the nature of evidence they may find that could implicate him. Since listening devices had been installed in his car and his home, the jury were able to listen to these ruminations.
From an early stage the trial judge and counsel were acutely aware of the difficulties presented by admitting these ruminations as evidence. The topic appears to have been uppermost in the minds of counsel and judge. It was a subject that was discussed and analysed at length during the trial. In the event, the prosecutor agreed (there being no formal ruling) that the only part of the ruminations that prosecution would rely upon as consciousness of guilt were the references to Binion, and the suggestion that he was somehow involved in the abduction.
It is tolerably clear that unfortunately the prosecutor went outside the scope of the agreement in his final address to the jury, particularly in relation to the applicant’s supposedly changing story about Leon McEntee’s involvement, and his creating an alibi that he was too drunk to drive the relevant night.
No doubt anticipating that the trial was going off the rails – and in order to get it back on the right track – the trial judge interrupted the prosecutor’s address, and gave both parties the opportunity to be heard on how the matter should proceed. After agreeing there should be a retraction, the prosecutor addressed the jury as follows:
Members of the jury, I want to withdraw an argument I was developing, that in giving different explanations of Leon McEntee’s involvement, and in saying he was too pissed and giving himself an alibi, I don't persist with that argument, and I want to withdraw it. There are many reasons, of course, why somebody would give different accounts, many innocent explanations as to why someone would do that, and I want to withdraw the suggestion that in doing so, in any way points to the accused’s guilt.
However, apparently unperturbed about, and undeterred by, what had recently gone on, the prosecutor threw caution to the wind and went on to say:[9]
He is concerned that his DNA or fingerprints may be found on items associated with the body. I have endeavoured to take you through that material, the record of interview and those musings to demonstrate how he perceives Binion is a problem for him. If Binion comes forward to claim the reward, he expects Binion will nominate him, and he thinks through how he shall deal with Binion, how he shall either discredit Binion, or talk him out of the account that he gives involving him. Insofar as he discusses with himself the fact that his DNA may be found, or his fingerprints may be found on the rope and blankets, it is because he fears he knows about that as well.
[9]Emphasis added.
Thus although the prosecutor eschewed consciousness of guilt reasoning in relation to Leon McEntee or the creation of an alibi, his address raised it in relation to Binion (which, however, had been agreed), and the applicant’s speculation about his DNA being found on the body.
The following day, defence counsel suggested that the jury could use the ruminations as consciousness of innocence because if the applicant had killed MM, he would not have needed to speculate as to what had happened to her. Although the trial judge said that she would not stop defence counsel from running that argument, she said she would deal with it in her Charge.
In later discussion between counsel and judge it was determined that a Zoneff[10] direction would be required for the alleged lies told by the applicant, and an Edwards direction for the consciousness of guilt argument in relation to the ‘Bino’ ruminations. Both parties concurred. The trial judge directed the jury in accordance with her announced intention.
[10]Zoneff v The Queen (2000) 200 CLR 234.
During deliberations, the jury requested that the judge explain how the product from the listening devices could be taken into account. After discussion with counsel, the judge again directed as she had previously, and she informed the jury she would provide them with a copy of that part of the Charge.
As I have said, the applicant contends that there has been a substantial miscarriage of justice. The applicant’s counsel now questions the evidentiary basis for much of the ruminations when in the end they were not relied upon as going to consciousness of guilt or lies. He was constrained to concede, however, that when the prosecutor opened the possible use of the soliloquy evidence, counsel at trial took no objection to it, let alone sought discharge of the jury.
Similarly, counsel was constrained to concede that when there was a ‘late change’ in the prosecution case, so as to rely on consciousness of guilt, again counsel at trial did not seek a discharge of the jury. It would seem that trial counsel was content to abide the prosecutor’s humiliating retraction.
Further, as is plain from an examination of the judge’s Charge, and the lead up to it, counsel assisted her Honour to formulate the directions to be given about the soliloquy evidence, and did not suggest that she give any of the directions which it is now claimed were crucial.
Moreover, no exception was taken to the directions given in the Charge, or complaint made by counsel as to the failure to give the directions now said to be critical.
It cannot be ignored that counsel at trial was – as counsel on this application acknowledged – very experienced, and had conducted a number of murder trials. As the Court raised with counsel during argument, there were sound forensic reasons why counsel might have avoided seeking to narrow the ambit of the soliloquy evidence that was admitted at trial. Parts of it – particularly the applicant’s reference in his ruminations about ‘Bino’ – were highly probative of the applicant’s knowledge of the kidnapping (and thus legitimately prejudicial to his interests). Defence counsel approaching the matter in a sensible and sound fashion might very well have realised that critical parts of the soliloquy evidence were admissible, but that other parts strictly were not. Successful objection to the inadmissible parts, however, might have resulted in the highly probative parts being put into sharp focus, undiluted by any of the other benign parts. Counsel may well have adopted the strategy of encouraging the admission of strictly irrelevant soliloquy evidence relating to a whole range of matters – indeed he cross-examined in parts not relied upon by the prosecution – so as to limit the impact on the jury of other probative parts. So much was a rational forensic tactic.
Indeed, such a strategy may be gleaned from defence counsel’s address in response to the prosecutor’s opening, where it was submitted that ‘the Crown are picking out, out of weeks of recordings, a few disconnected matters which don’t really indicate the guilt of John McDonald at all’. Counsel immediately proceeded to discuss the ruminations on the topic of ‘DNA being on a rope’.[11]
[11]T 113–4.
Generally speaking, an accused is bound by the conduct of his or her trial by counsel.[12] In this case the applicant’s counsel eschewed any suggestion of incompetence on the part of trial counsel. The thrust of his submissions was, however, that notwithstanding that there might be a sound forensic strategy underlying trial counsel’s conduct of the trial, nonetheless with the benefit of hindsight it can be seen that the trial miscarried. Failure to take a point at trial does not necessarily foreclose reliance on it on appeal, but it is a significant obstacle in the way of the applicant.[13] In my opinion, in the circumstances of this case, the applicant is unable to clear that obstacle.
[12]TKWJ v The Queen (2002) 212 CLR 124; Nudd v The Queen (2006) 225 ALR 161, 80 ALJR 614; Patel v The Queen (2012) 290 ALR 189, 86 ALJR 954. See also R v Arundell [1999] 2 VR 228, 249-50 [53]–[55]; R v Mateiasevici [1999] 3 VR 185, 196 [37]; MB v R [2012] VSCA 248, [45].
[13]See R v Wright [1999] 3 VR 355, 360 [16]; R v MMJ (2006) 166 A Crim R 501, 523–4 [93]–[97].
As I have observed, trial counsel did not object to the admission of the soliloquy evidence. Imbued with the atmosphere of the trial, counsel did not seek a discharge of the jury after the supposed late change in the prosecution case. He assisted the judge in crafting the directions to be given to the jury; and he took no exception to the Charge or further directions given in answer to a jury question. No submission was made to the judge that she should give the directions the absence of which it is now claimed has led to a miscarriage of justice. Presumably counsel would have made an objection, taken an exception or sought a discharge of the jury, if he had thought that his client’s interests had relevantly been compromised. Counsel was no tyro. He was experienced in murder trials. It is not contended that he was incompetent. And looking at the matter in a practical way, to my mind there are sound forensic reasons for him conducting the trial as he did. Why it is that any of the matters complained of might – either alone or in combination – add up to a miscarriage of justice, eludes me.
Without wishing to appear critical of counsel for the applicant in this Court, the application had the flavour of an ‘armchair appeal’.[14] For the trial judge to have given the directions that it is now said that she should have, would have been to highlight pieces of evidence that it would not have been in the applicant’s interest to emphasise. Expressing sentiments that might appropriately be adapted to the present case, Ashley JA in Shiers,[15] when dealing with a complaint that an Edwards direction had not been given at trial, observed:
81 The sequence of events is painfully familiar. It illustrates the gulf between defence at trial and prosecution of an appeal. In the former the emphasis is upon securing an acquittal. In the latter, the applicant, generally speaking, has at best the chance of obtaining a fresh trial. At trial, most often, the last thing that an accused person is likely to want is that the trial judge, with the weight of his or her authority, should identify alleged lies in the course of giving a full Edwards direction. The present case is a case in point. On appeal, a judge’s failure to give such a direction is attacked; and it is submitted that the applicant lost a fair chance of acquittal by reason of that failure. In this context ‘failure’ means, often, that the trial judge gave no direction because after discussion with counsel it was agreed that no such direction should be given; or that no direction was given because none was sought, either at the outset or by exception. Sometimes, again, the trial judge is attacked for giving an Edwards direction in respect of a particular lie in circumstances where, it is claimed, he or she should not have done so.
82 Circumstances such as I have described give particular focus to criticism of a legal system which permits a convicted person to agitate, on appeal, an issue not raised at trial. Such criticism yields, however, to the critical consideration that a conviction should not be permitted to stand if a defect in the trial process led to a miscarriage of justice. Further, the sting of any criticism is ameliorated by the fact that, in considering the merits of a matter newly raised, the way in which the trial was conducted is by no means irrelevant.
[14]R v Dunmall [2008] VSCA 22, [15] (Ashley JA).
[15]R v Shiers (2003) 7 VR 174, 196–7 [81]–[82] (citations omitted).
I should add that, although it was not productive of a miscarriage of justice, the prosecutor’s late raising of consciousness of guilt reasoning is to be deprecated. Some years before the trial in this case, in Ciantar,[16] a five member bench of this Court had made it plain that the prosecution ordinarily should identify lies relied upon as going to consciousness of guilt prior to evidence commencing.[17] Although it would have been preferable in this case for the status of the soliloquy evidence going to supposed consciousness of guilt to have been determined well in advance of when it was, no miscarriage of justice flows merely from the timing of the prosecutor raising the issue. Aspects of the soliloquy evidence having been opened by the prosecutor, without elaboration as to whether it went to consciousness of guilt or to some other matter, it should have been obvious to defence counsel that it was necessary for the prosecution to be made to nail its colours to the mast. Although he did not, it would have been open to defence counsel to have done so. In any event, the status of the lies was thoroughly ventilated before final addresses.
[16]R v Ciantar (2006) 16 VR 26 (Warren CJ, Chernov, Nettle, Neave and Redlich JJA).
[17]I note that s 23 of the Jury Directions Act 2012, due to commence on 1 July 2013, will require the prosecution, at least 28 days before trial, to give notice to the accused of an intention to rely on ‘incriminating conduct’ (which includes lies).
In light of the foregoing, I am unpersuaded that any miscarriage of justice flowed from the late change in the prosecution’s position. Further, I cannot see that crucial aspects of the soliloquy evidence were without proper foundation (although, of course, it would have been preferable for that foundation to have been identified much earlier than it was). The submission that a miscarriage of justice arose when the prosecutor proffered for the first time in his final address an argument that relied on consciousness of guilt reasoning is without substance in circumstances where the trial judge, with the apparent concurrence of defence counsel, took steps to ameliorate any prejudice to the applicant. Finally, given the way in which defence counsel chose to conduct the trial, there is nothing in the submission that the judge wrongly failed to direct the jury as to what use they could make of the soliloquy evidence. Counsel helped mould the directions, and must be taken to have considered that they were adequate in the circumstances.
There are two final matters upon which I should comment. First, in my view, the characterisation of the applicant’s ruminations as post-offence conduct evidencing consciousness of guilt is dubious. In my opinion certain of the applicant’s ruminations were capable of being viewed as direct evidence of his state of mind,[18] rather than as implied admissions. The directions given to the jury as to the use of the evidence, however – it being assumed that it went to consciousness of guilt – could not have caused any disadvantage to the applicant. Indeed, on one view, they may have been favourable.
[18]See Evidence Act 2008, s 66A. See also Walton v The Queen (1989) 166 CLR 283, 302–4 (Wilson, Dawson and Toohey JJ); Bull v The Queen (2000) 201 CLR 443, 477–80 [116]–[126] (McHugh, Gummow and Hayne JJ).
Secondly, to succeed on an appeal against conviction, the applicant must
show that there has been a substantial miscarriage of justice.[19] In my opinion there was no error or irregularity in the trial, or any other reason for concluding that there has been a substantial miscarriage of justice. Conviction in this case was, in my view, inevitable, with or without the impugned evidence.[20] The inference that MM was dead was compelling. She had custody of three of her children, and was trying to secure the custody of the other two. She had purchased Christmas presents in preparation for the forthcoming Christmas. She had not taken with her a vanity bag that usually accompanied her. She has not been seen or heard of by friends or family since her disappearance. Moreover, the inference that the applicant (or someone at his behest) killed her is also compelling. Bone, Binion and Ardley gave evidence that on the night of 13 to 14 December 1986, they broke in to MM’s home, tied her up and abducted her. She was then given into the custody of the applicant. In the circumstances, any suggestion that he did not kill her, or arrange for her death, is fanciful (as indeed is the suggestion – advanced at one point on this application – that a verdict of manslaughter might, on the evidence, have been open[21]).
[19]Criminal Procedure Act 2009, s 276(1)(b) and (c).
[20]Baini v The Queen (2012) 293 ALR 472; Andelman v R [2013] VSCA 25.
[21]R v Rice [1996] 2 VR 406.
Conclusion
For these reasons, the application for leave to appeal against conviction must be refused.
COGHLAN JA
I agree.
---
4
12
0