Pennington v The State of Western Australia - [2013] WASCA 98

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: PENNINGTON -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 98

CORAM: MARTIN CJ
BUSS JA
MAZZA JA

HEARD: 18 FEBRUARY 2013

DELIVERED : 12 APRIL 2013

FILE NO/S: CACR 88 of 2012
CACR 89 of 2012

BETWEEN: RONALD LESLIE PENNINGTON
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :McKECHNIE J
File No  :INS 94 of 2011

Catchwords:

Criminal law - Appeal against conviction - Manslaughter - Edwards lies - Zoneff warning - Whether trial judge erred in directions to jury

Legislation:

Criminal Appeals Act 2004 (WA), s 30(3)(a), s 30(4)
Criminal Code (WA), s 279, s 280
Jury Directions Act 2013 (Vic)

Result:

Appeal against conviction allowed
Appellant's conviction set aside
Retrial ordered

Category: B

Representation:

Counsel:

Appellant: Mr T Percy QC & Mr S Watters
Respondent: Mr J McGrath SC

Solicitors:

Appellant: LMB Barristers & Solicitors
Respondent: Director of Public Prosecutions (WA)

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

Coates v The State of Western Australia [2009] WASCA 142
Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1
Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193
Johnstone v The Queen [2011] VSCA 60; (2011) 31 VR 320
Leighton v Garnham [2012] WASC 314
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Martinez v The State of Western Australia [2007] WASCA 143; (2007) 172 A Crim R 389
R v Chang [2003] VSCA 149; (2003) 7 VR 236
R v Ciantar [2006] VSCA 263; (2006) 16 VR 26
R v Cuenco [2007] VSCA 41; (2007) 16 VR 118
R v De Marco (Unreported, VSCA, Library No BC9702902, 26 June 1997)
R v Hartwick [2005] VSCA 264; (2005) 14 VR 125
R v Shiers [2003] VSCA 179; (2003) 7 VR 174
R v Sood (Ruling No 3) [2006] NSWSC 762
Singh v The State of Western Australia [2012] WASCA 262
SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
Weiss v The Queen [2005] HCA 81; (2005) 80 ALJR 444
Woon v The Queen (1964) 109 CLR 529
Zoneff v The Queen [2000] HCA 28; (2000) 200 CLR 234

MARTIN CJ:

Summary

Ronald Leslie Pennington was convicted of unlawfully killing Cariad Jeanne Anderson‑Slater after trial by a judge and jury. He appeals from that conviction, and from the sentence imposed following conviction. For the reasons which follow, his appeal against conviction should be allowed, as a result of the failure of the trial judge to direct the jury with respect to that part of the prosecution case which relied upon lies allegedly told by Mr Pennington and which formed a significant component of the case against Mr Pennington. Mr Pennington's conviction should be quashed and a retrial ordered. In those circumstances it is neither necessary nor appropriate to deal with the appeal against sentence.

The disappearance of Ms Anderson‑Slater and the subsequent trial of Mr Pennington

There was no direct evidence of the circumstances in which Ms Anderson‑Slater met her death. Nor was there any evidence capable of establishing the cause of her death. In very general terms, she was last seen approaching the front door of a house in Rosewood Avenue, Woodlands (a suburb of Perth) at approximately 6.30 am on the morning of 13 July 1992. Mr Pennington was the sole occupant of the house at that time. Nobody has admitted seeing Ms Anderson‑Slater alive since then. Following her disappearance, the police conducted an investigation which was inconclusive. Almost 19 years later, on or about 17 February 2011, human remains were discovered during the course of excavation undertaken in connection with building works on the site of the house previously occupied by Mr Pennington. At his trial, Mr Pennington formally admitted through counsel that the human remains were those of Ms Anderson‑Slater.
Following the discovery of those remains, Mr Pennington was again interviewed by police in Tasmania, where he was then living. Following that interview he was charged with the murder of Ms Anderson‑Slater and was extradicted to Western Australia. The indictment presented at his trial alleged that he had murdered Ms Anderson‑Slater, contrary to s 279 of the Criminal Code (WA) (the Code), or in the alternative had unlawfully killed her, contrary to s 280 of the Code. Although the State did not formally discontinue the charge of murder, it was not pressed during the trial. The focus of the State during the trial was upon the alternative count of unlawful killing (or manslaughter).
Because of the hiatus in the evidence relating to the circumstances surrounding the death of Ms Anderson‑Slater, and in respect of the cause of her death, the essential question for the jury was whether they were prepared to infer, beyond reasonable doubt, that Mr Pennington had unlawfully killed Ms Anderson‑Slater, based upon the largely circumstantial evidence which was adduced. I describe the evidence as largely circumstantial because, as will be seen, in addition to the circumstantial evidence the State relied upon a number of lies allegedly told by Mr Pennington which were, according to the State, told in order to avert attention from his own involvement in the death of Ms Anderson‑Slater. In substance, the prosecution contended that the jury could use those lies to conclude that Mr Pennington was aware of his own involvement in the death of Ms Anderson‑Slater, lied to obscure that involvement, and to that extent, thereby admitted his guilt.

The non-contentious circumstantial evidence

The circumstantial evidence relied upon by the prosecution was not contentious. That evidence established the following sequence of events.
Ms Anderson‑Slater met and developed a relationship with Mr David Slater in Scotland. Mr Slater moved to Adelaide, South Australia for work purposes, and was followed shortly thereafter by Ms Anderson‑Slater. They married in April 1990 in South Australia. Each had been previously married and each had children from those marriages. There were no children from their marriage.
In May 1992, the couple moved to Western Australia for reasons associated with Mr Slater's work. They rented a house in Essex Street, Wembley. They knew very few people in Western Australia. A short while after arriving in Perth, on Sunday, 28 June 1992 they visited the Art Gallery of Western Australia where they met Mr Pennington who was working as a volunteer. They struck up a conversation with Mr Pennington, in the course of which he offered to assist Mr Slater in the restoration of some antique books. As a result of that conversation, Mr Pennington invited Mr and Mrs Slater to dinner at his house in Rosewood Avenue, Woodlands on the evening of Tuesday, 30 June 1992.
Mr Pennington has described himself as an alcoholic in statements to police. Ms Anderson‑Slater had difficulties with alcohol herself, which were manifested in occasional bouts of binge drinking which would last for days at a time. Mr Pennington was drinking that evening, but Ms Anderson‑Slater was not. Nevertheless, the issues which they each had in relation to alcohol seemed to lead them to forge some kind of bond.
Following that dinner, there was further contact between Mr Pennington and Ms Anderson‑Slater. Mr Pennington has consistently denied that their relationship was sexual, although entries which he made in a diary which was later produced to police were alleged to have been capable of suggesting that he anticipated that the relationship may develop in that way.
Mr Pennington again invited Mr and Mrs Slater to dinner at his house on the evening of Sunday, 12 July 1992. When they arrived, there was a person outside the house. Mr Pennington was observed to have been in an angry mood as a consequence of a discussion which he had recently completed with that person in relation to lodging at Mr Pennington's house. Mr Pennington had been drinking heavily and Ms Anderson‑Slater had a few drinks at Mr Pennington's house. During the course of the evening, an argument developed on the subject of the monarchy. Mr Slater and Ms Anderson‑Slater decided to leave and return home at about 9 pm.
After they returned to their house in Essex Street, Wembley, an argument developed between Mr Slater and Mrs Anderson‑Slater in relation to the extent of Ms Anderson‑Slater's drinking. In the course of that argument, Mr Slater poured all of the alcohol in the house down the sink. He also disconnected the telephone line in order to prevent her from making a telephone call to Scotland. He said in evidence that he was concerned that if she made a call to Scotland after she had been drinking, the call would be protracted and expensive (ts 91).
Mr Slater decided that it might help diffuse the situation if he left the house. He drove to Lake Monger, which was not far from their residence, where he smoked a few cigarettes.
In the meantime, Ms Anderson‑Slater went to the house next door to their house in Essex Street, Wembley. By this time it was the early hours of the morning of Monday, 13 July 1992. The house was occupied by three people; Mr Colin McKenzie and his partner Ms Rayleen Hauser, and Ms Julie Akers. Mr McKenzie was up late watching a broadcast of the Grand Prix on television. Mr McKenzie worked in the hospitality trade and was not scheduled to work on either that Sunday or the Monday.
Ms Anderson‑Slater knocked on the door and asked if her husband was there. Mr McKenzie replied in the negative. She asked if she could come in for a talk. They had not previously spoken at any length.
Ms Anderson‑Slater was wearing a white shirt and socks covered by a bathrobe. She appeared to Mr McKenzie to be dressed ready for bed. Mr McKenzie took her into the lounge room of the house, where she asked for a drink. Mr McKenzie gave her two or three glasses of wine. She smoked some of his cigarettes. She appeared to him to be quite drunk, and said to Mr McKenzie that she had drunk two bottles of Scotch during the preceding day. She told Mr McKenzie that she had had an argument with her husband.
After about an hour, Ms Anderson‑Slater returned home to obtain more cigarettes. When she was returning to Mr McKenzie's house, Mr Slater arrived home in the car. There was no contact between the two and Ms Anderson‑Slater returned to Mr McKenzie's house. When she returned, Mr McKenzie said that she was carrying a dark blue jacket.
Mr McKenzie and Ms Anderson‑Slater continued their conversation. During the course of their conversation, Ms Anderson‑Slater told Mr McKenzie that she was unhappy in her marriage and that she was having an affair that she was also unhappy with. She then stood up and opened her clothing so as to expose her naked body to Mr McKenzie, saying words to the effect of 'you'd like a piece of this'. Mr McKenzie told her not to be silly.
Ms Hauser complained to Mr McKenzie about the noise from the conversation he was having with Ms Anderson‑Slater. Mr McKenzie asked Ms Anderson‑Slater to leave. She said that she did not want to, so Mr McKenzie offered her the use of a bed in the spare room at his house. However, Ms Anderson‑Slater would not settle, and got up from the bed in the spare room a number of times.
Eventually, at around 5 am in the morning, Ms Anderson‑Slater advised Mr McKenzie that she wanted to go and visit some friends in Woodlands. She told Mr McKenzie that she was unsure of the address. She gave him a name - according to Mr McKenzie in his evidence 'Ron something' - which Mr McKenzie used to obtain an address by telephoning Directories Assistance (ts 253).
Ms Anderson‑Slater gave Mr McKenzie a piece of paper on which to write the address. He noticed that words were written on the other side of the paper to the effect of 'bad luck, James. I'm dead'.
Mr McKenzie also made a note of the telephone number of the person whose name he had been given by Ms Anderson‑Slater. He dialled that number and passed the handset to Ms Anderson‑Slater. He remained close by and could hear what Ms Anderson‑Slater was saying in the course of the telephone conversation. He heard her say that she wanted to go and see her friend Ron, and also heard her say words to the effect of 'no, not for sex, I just want to talk'. After that telephone conversation concluded, Mr McKenzie telephoned for a taxi to take Ms Anderson‑Slater to the address in Woodlands. The taxi arrived about 10 or 15 minutes later. Ms Anderson‑Slater left in the taxi, taking the blue jacket with her. That same morning of 13 July 1992, Mr McKenzie saw Mr Slater drive away from the Slaters' house at around 7.15 am, returning at some time before 8.30 am.
The taxi which collected Ms Anderson‑Slater was driven by Mr Ross Powell. He responded to the call and arrived at Mr McKenzie's house at about 6.15 am. A woman entered his vehicle who appeared to him to be inebriated. Mr Powell gave evidence to the effect that the woman was wearing a blue coat and dark coloured slacks. He noticed that she was wearing white socks without shoes. She told him to take her to 47 Liege Street, Woodlands. When they arrived at Liege Street, Mr Powell realised that there was no such address. The woman then produced a piece of paper from her purse which had an address in Rosewood Avenue written on it. Mr Powell drove the taxi to that address, which was quite close to where they were in Liege Street.
When the taxi arrived in Rosewood Avenue, the woman pointed out a house which had an external light on. The light was in the roof of the ceiling of the front verandah. After a minor disagreement about the fare, Mr Powell watched the woman approach the front door of the house to the point where she was about to reach out for the door handle. He then left.
Mr Slater assumed that Ms Anderson‑Slater was on another of her binges. He took no action until the second day after her disappearance, when he contacted both Mr McKenzie and Mr Pennington. It will be necessary to consider in detail the evidence which he gave with respect to his conversation with Mr Pennington in the context of the grounds of appeal. Mr McKenzie told Mr Slater that Ms Anderson‑Slater had called Mr Pennington, and that he (Mr McKenzie) had then telephoned a cab for her. Mr McKenzie advised Mr Slater that at about 6.30 am on the morning of 13 July the taxi had collected Ms Anderson‑Slater to take her to Mr Pennington's house.
As time went by, Mr Slater became more worried. He drove to Mr Pennington's house on Rosewood Avenue and listened outside the house to see if he could hear his wife inside. He heard nothing. He did not knock on the door or speak to Mr Pennington at that stage.
Mr Slater reported the disappearance of Ms Anderson‑Slater to police on Thursday, 16 July 1992.
In the weeks following the disappearance of Ms Anderson‑Slater, Mr Slater dined with Mr Pennington on a couple of occasions. He asked Mr Pennington to assist him in trying to find Ms Anderson‑Slater. Together they looked for her in the bushes around Jackadder Lake, which abuts Rosewood Avenue, Woodlands.
On the Saturday following the disappearance of Ms Anderson‑Slater, Mr Slater again approached Mr McKenzie and asked if he had heard anything further in relation to the whereabouts of Ms Anderson‑Slater. Mr McKenzie advised Mr Slater that he had not, and in the course of conversation enquired if Mr Slater knew that Ms Anderson‑Slater was having an extramarital affair.
Ms Anderson‑Slater was never seen alive again. There were no transactions on bank accounts in her name, and all her possessions, including her passport, remained in the house in Essex Street, Wembley.
After Ms Anderson‑Slater had been missing for about a week, Mr Slater cut up their wedding photos, altered his will to delete her as a beneficiary and sought and obtained female companionship.
Two years later Mr Slater moved to Queensland in connection with his work. He has since remarried.
Mr Gordon Chong started boarding in Mr Pennington's house around a week after Ms Anderson‑Slater went missing. While he was there, Mr Slater visited Mr Pennington in a very distressed state, crying and referring to the fact that his wife was missing. In his evidence, Mr Chong referred to an occasion upon which the toilet in the house had become blocked.
The same evidence was given by Mr John Gray who commenced boarding at Mr Pennington's house in Rosewood Avenue on 19 July 1992. It will be noted that this was within a week of the disappearance of Ms Anderson‑Slater. Mr Gray was present when a plumber attended at the request of Mr Pennington in order to address the toilet blockage. He observed the plumber dig up an L‑shaped pipe between the toilet and the septic tank in the backyard of the property, in which a piece of blue clothing, described by Mr Gray as a 'sort of checked shirt' was found (ts 283). He also stated in evidence that more clothing of some sort was found in the pipe, although he did not describe it any further.
Mr Gray observed Mr Slater dining with Mr Pennington on a couple of occasions. It will be necessary to consider Mr Gray's evidence with respect to his conversations with Mr Pennington in more detail in the context of a consideration of the grounds of appeal.
Mr Pennington eventually sold his interest in the property on Rosewood Avenue and moved to Tasmania. The purchaser of the site decided to redevelop the property by demolishing the existing structures. In the course of that work, on or about 17 February 2011, an excavator was digging in the rear of the property, extracting both soil and concrete items. In the course of that work, a human skull was noticed and the excavation work ceased. Police were called and detailed forensic analysis of the site was undertaken. At the end of that process, a number of pieces of human bone had been recovered, including a jaw bone with a tooth, which was matched to Ms Anderson‑Slater. DNA extracted from one of the bones was also consistent with the DNA of Ms Anderson‑Slater, and forensic analysis of a wrist bone recovered from the site revealed that the bone exhibited evidence of an injury which Ms Anderson‑Slater was known to have suffered as a result of a train crash in the United Kingdom. Expert evidence was adduced to the effect that soil which adhered to the bones that were recovered was likely to have originated from Mr Pennington's property in Rosewood Avenue, Woodlands, and was unlikely to have originated from the house in Essex Street, Wembley, occupied by the Slaters.
Following the discovery of Ms Anderson‑Slater's remains, police travelled to Tasmania and conducted a lengthy video recorded interview of Mr Pennington. In that interview, and in his statements to police made in the course of the investigation following Ms Anderson‑Slater's disappearance, Mr Pennington consistently denied any involvement in her disappearance or murder. It will be necessary to consider in more detail the precise terms of the statements made by Mr Pennington to police in the context of the grounds of appeal.

Grounds of appeal

There are five grounds of appeal against conviction. Leave to appeal has been granted in respect of the third ground, and the question of leave in relation to the other grounds was referred to the hearing of the appeal. For the reasons which follow, ground 3 is the only ground of any substance and should be considered first.

Ground 3

Ground 3 stems from the fact that the trial judge gave no direction to the jury with respect to the use properly to be made of the evidence relied upon by the prosecution which was said to support the conclusion that Mr Pennington had told lies in a number of respects which were most material to the offence which he was alleged to have committed.
There is no doubt that the trial judge did not give any direction with respect to the lies allegedly told by Mr Pennington. In particular, the trial judge did not direct the jury as to the limited circumstances in which such lies might be taken as evidence of an awareness of his own guilt, and thereby as an implied admission of guilt (an Edwards direction, in line with the High Court's decision in Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193). Nor was there any direction to the effect that the lies allegedly told by Mr Pennington went only to the credibility of the statements he had made to police, and that it would be wrong for the jury to reason that merely because he had lied, he was guilty of the offence charged (a Zoneff warning, in line with the High Court's decision in Zoneff v The Queen [2000] HCA 28; (2000) 200 CLR 234). Nor is there any doubt that neither form of direction was sought by counsel for the prosecution or the defence, nor was the question of whether such a direction should be given apparently addressed at any point during the trial. The question for this court is whether the failure to give such a direction occasioned a miscarriage of justice.

The alleged lies

Although the terms of ground 3 are somewhat obscure in relation to particularisation of the lies which it is said should have been the subject of a direction by the trial judge, during the course of oral argument it became clear that the ground relies upon two lies which the prosecution alleged were told by Mr Pennington. They are:
1.A lie allegedly told by Mr Pennington to Mr Slater with respect to the extent of his contact with Ms Anderson-Slater during the morning of 13 July 1992 [the first alleged lie].
2.A lie allegedly told by Mr Pennington to police to the effect that he did not hear Ms Anderson‑Slater come to his house in the early hours of the morning of 13 July 1992 [the second alleged lie].
It will be observed that although the two lies the subject of this ground of appeal are different, in the sense that they involve different statements to different people on different occasions, they are connected in the sense that both lies concern the very significant question of whether, and to what extent Mr Pennington had any contact with Ms Anderson‑Slater during the early hours of 13 July 1992 immediately prior to her disappearance.
It is appropriate to address this ground of appeal by first identifying the evidence which is capable of sustaining the conclusion that Mr Pennington lied in the respects alleged. It will then be appropriate to give detailed consideration to the extent to which the alleged lies were addressed by counsel in their opening and closing submissions, and in particular, to look closely at the nature of the reliance placed upon the alleged lies by the prosecution. Next it will be necessary to look at the extent to which the trial judge made any mention of the alleged lies or the evidence pertaining to the alleged lies for the purpose of assessing whether his direction to the jury departed from established legal principles in such a way as to occasion a miscarriage of justice.

The evidence relating to the alleged lies

Mr Pennington did not give evidence at trial. The evidence as to statements which he made and which are alleged to constitute lies takes the form of various statements which he made to police, and Mr Slater's evidence of his conversations with Mr Pennington. The evidence which is capable of falsifying the relevant statements made by Mr Pennington comes also in some respects from the statements which he made to police, and from both Mr Slater and Mr Gray's evidence of their conversations with Mr Pennington. It is convenient to first consider the relevant portions of the statements made by Mr Pennington to police, in the chronological order in which they were made.
The first statement was made by Mr Pennington in his own hand and is dated 22 July 1992. It includes the following passage:
[At] about 5 am on Monday 13 July 1992 I got a telephone call from Cariad. I was still very drunk but I was lying on my bed fully dressed. I answered the call in my bedroom.
I could tell straight away she was very drunk and she was slurring her words. I cannot remember exactly what was said but I remember she was not phoning from her home. I have no idea where she was phoning from. She told me she was not with David and that she wanted to come and see me. I realised she was in the middle of a domestic problem and I did not want to be involved. She told me she was coming to visit me but I told her she was not to do so.
That was my last conversation with her. I have not heard or seen from her [sic] again.
Mr Pennington provided police with another statement in his own hand dated 27 July 1992. That statement contains the following passage:
On July 12th David and Cariad dropped in and David and I had a drink, somehow we got into an argument about royalty. I was pissed. They left with mixed feelings I feel.
Cariad phoned me on Monday 13th July at about 6 am to say she was coming around. She was pissed and slurring her words. I told her not to come that I wouldn't let her in.
After that call I had a couple of drinks and I went back to sleep. I never heard her knock on the door or come to my house.
The front porch light of the house was on, its [sic] always on although the globe may have blown.
I leave the light on as a deterrent to burglars.
Mr Pennington provided a third written statement to police during 1992. This statement was typed and signed by Mr Pennington on each page. In that statement, Mr Pennington asserts that he had consumed one cask of Riesling during the day of Sunday 12 July 1992 and was drunk at the time Mr Slater and Ms Anderson‑Slater arrived for dinner. After a reference to the argument with respect to royalty, the statement continues:
When they left I continued to drink Riesling. I can't remember going to bed but I remember waking up on my bed. I was fully clothed so I got undressed and got into bed. I had another glass of wine before I did this.
The next thing I remember is the phone ringing. I answered it and it was Cariad. It was still dark her voice was slurred. I thought she was pissed.
She said she was next door to her house as she had been arguing with David. She wanted to come over to my place. I said 'no' as I didn't want to get involved. I said something like I wouldn't accept her in the house.
I don't remember her saying anything about her wanting to talk or not wanting to have sex. I also don't recall whether she was forceful about wanting to come over. The conversation ended but I don't know how.
As soon as I put the phone down I locked the front security door as I may have thought she was coming over, I'm not sure. It was usual practice for me to lock the SNIB or the door at night.
I got a glass of wine and drank it, having to open a new cask.
I then went back to bed. I fell asleep in my bed.
The phone rang and woke me. I answered the phone. It was Tracy Bridges. She rang regarding my exhibits in the Royal Show. I put her off because I was on the piss and I wasn't happy with her as she had tried to put me into a pyramid selling scheme.
I can't say what the time was but it might have been about 8 am.
I got showered, dressed and started getting housework done. I was supposed to go to work that day but I was too sick. I continued drinking.
The typed written statement also contains a reference to Mr Pennington's conversation with Mr Slater following the disappearance of Ms Anderson‑Slater. That reference is in the following terms:
On Wednesday 15th July, 1992 David SLATER rang me. He told me that Cariad was missing. He said that they had had an argument, Cariad had been drinking. He had tipped a bottle of scotch down the sink and he had gone for a drive. He said he returned home and Cariad had walked next door ignoring him. She was wearing a nightgown.
David said that she had gone missing in Adelaide for three days. He appeared upset.
I think I asked him over for a meal.
I didn't think to tell David that Cariad had phoned me Monday morning so as not worry him any further as he may have thought I was having an affair with her.
As I have mentioned, following the discovery of human remains at the rear of the property previously occupied by Mr Pennington in Rosewood Avenue, Woodlands, detectives travelled to Tasmania and conducted a video recorded interview with him. The interview took place over more than five hours. An edited version of the video record of interview was tendered in evidence and played to the jury.
A portion of the interview was directed towards entries made by Mr Pennington in a diary apparently maintained by Mr Pennington over the period before and after Ms Anderson‑Slater's disappearance, and which had been obtained by police. Mr Pennington was asked about an entry on the day of 13 July 1992 which read:
Phoned. Forget David and Cariad. I wouldn't accept her.
Mr Pennington confirmed that the entry was correct, and concerned the telephone call which he had received from Ms Anderson‑Slater in the early hours of the morning. He told police that he said to her '[n]o. I just wouldn't accept it'. He was then asked:
Q:Is it a case, Ron, that when you say you wouldn't accept her, that refers to the fact that she wanted to be with you.
A:Yes.
Q:As in not just an affair, that she may have wanted to be with you permanently and leave David?
A:I don't think so.
Q:That was never discussed between you?
A:No, never.
Later in the course of the interview the following interchange took place between Mr Pennington and the interviewing officers:
A:… [W]hen David phoned up and asked me where Cariad was and I said, 'no, I haven't seen her', he said, 'well, what am I going to do?'. I said, 'go to the police'. I told him to go to the police.
Q:So this is on the Wednesday?
A:That was the Wednesday, yes.
Q:Did you tell David that Cariad had called you that morning on the Monday?
A:No.
Q:Why was that?
A:Well, because I didn't want to upset him, I didn't want him to associate Cariad and me because there was nothing between us. So I just didn't say anything.
Later in the interview the following interchange took place:
A:She didn't arrive - well, I didn't see her arrive because I was asleep.
Q:Mm'hm.
A:And I was pretty pissed. I didn't see Cariad on that Monday. She did ring me up.
Q:Mm'hm.
A:That's for sure, but I didn't let her in the house.
Q:When you first spoke to police - - -
A:Yeah.
Q:And I think they phoned you, um, from memory I think [on] about the 17th, you might have received a phone call from police and they asked about Cariad. You didn't make any mention to them ‑‑‑..
…
Q:What I'm saying to you is based - this part of the information I have is that when the police asked you about Cariad originally you didn't mention to them about the phone call either, not just David, but you didn't tell the police until three days later that you received a phone call from her.
A:Well, I didn't want to upset David - - -
Q:But I am talking - - -
A:Any, any more.
Q:I'm now talking about the police, Ron.
A:Yeah, but - oh, didn't I?
Q:No.
A:I don't know.
Q:Okay.
A:I can't remember it.
Q:Is it a case that you were trying to distance yourself totally with the phone call? You didn't want anyone to know that she had called you?
A:Well, more or less, but I didn't want David to know that she had phoned me.
Q:All right, but what about the police? Let's, let's put David aside for a moment.
A:Yeah.
Q:What about the police, do you think it's important that they know she called you that morning?
A:Well, I told them, didn't I?
Q:Not, not the first phone call.
A:Oh - - -
Q:That wasn't until two days later.
A:Oh, right.
Q:So we're talking about four days after she went missing.
...
Q:- - - would, would it be fair to say that with, with a missing person, if the police ring you with a lady that's missing any information you have would be pretty important?
A:Yeah.
Q:Okay.
A:I understand that.
Q:So if, if she has called you - well, we know she has called you on the Monday morning.
A:Yeah.
Q:When the police call you three days later and ask about whether you had seen her or not would you think that might be important information to tell the police?
A:Yes.
Q:Yeah, okay. From the records we have that wasn't done. You haven't mentioned it for another three days afterwards.
A:Oh - - -
Q:Can, can you explain that?
A:No.
Q:Okay, alright. You may not be able to, that's alright. Anyway.
…
Q:If there was, for some reason, something has taken place that you didn't mean or an accident - - -
A:No, that - no. I can see where you're heading there - - -
Q:Yeah.
A:- - - my friend, but - - -
Q:I, I'm trying to think of any possible scenario because sometimes things happen that are out of people's control or they didn't mean to happen. It doesn't mean they are a bad person. Do you understand what I am saying?
A:Yes. No, I didn't see Cariad on the Monday, and that's, that's it.
In relation to the first alleged lie, it can been seen that Mr Pennington admitted to police that when Mr Slater telephoned him on the Wednesday following the disappearance of Ms Anderson‑Slater, he did not tell Mr Slater about the telephone call he had received from the missing woman, in terms in which it appears that Mr Pennington implicitly accepted that mention of the telephone call might have been expected. Mr Pennington sought to justify his failure to advise Mr Slater of the telephone call he had received on the basis that he did not want Mr Slater to think that he was having an affair with his wife.
Further, in the video recorded interview Mr Pennington appeared to accept the proposition put to him by police to the effect that he did not tell the police about the telephone call he had received from Ms Anderson‑Slater in the early hours of the morning when contact was first made by police, again in circumstances in which one might have expected that information to be revealed. Mr Pennington appears to advance the same justification for that course - namely, that he did not want Mr Slater to think that he was having an affair with his wife, although the illogicality of that proposition was pointed out to him by police. At all events, the alleged failure of Mr Pennington to refer to the telephone call from Ms Anderson‑Slater in his first communications with police does not appear to have been mentioned by either counsel in either opening or closing addresses and has not been referred to in argument relating to ground 3 of the appeal. For that reason, the aspect of the case against Mr Pennington alleging that he lied by omission to police by not disclosing the telephone call in his first communication with police does not require further detailed consideration, other than to note that this portion of the video record of interview, when played to the jury, would have provided a context, and perhaps given added significance to what I have characterised as the first alleged lie.
In relation to the second alleged lie, it can be seen that in his statements to police Mr Pennington consistently asserted that after telling Ms Anderson‑Slater that she should not come around to his house, he went back to sleep and did not hear her arrive, or indeed have any further contact with her of any kind.

The evidence of Mr Slater and Mr Gray

During his evidence‑in‑chief Mr Slater was asked what he did after his wife's disappearance. He gave the following evidence:
Q:... What do you do on the second day?
A:As I recall, I contacted - now, it was either Ron Pennington or the neighbour. I can't quite remember the sequence. But I contacted both of them at one point. And I was told that she had never visited Mr Pennington by Mr Pennington. And when I confirmed with the neighbour, the neighbour advised me that she'd actually caught a cab the morning that she'd disappeared to Mr Pennington's home, at 6.30 am on the - on the 13th, which was the Monday.
Q:So Mr Pennington has told you that she didn't visit there. The neighbour has told you that that's where she was heading?
A:The neighbour said that she called Mr Pennington and there - there apparently was no objection to her going there. And then he ordered a cab for her. And indeed, she went in the cab and went to Mr Pennington's house. I was still in bed.
Q:All right. So you've - you've spoken to Mr Pennington and he said that she never came there. You've spoken to the neighbour who said that she seemed to be going there?
A:The words of the neighbour.
Q:So what do you do then?
A:What did I do? I - I started to get worried.
Q:Did you speak to Mr Pennington again?
A:He claimed that she hadn't indeed visited him, or that - at first he claimed that, and then - then later he told me that she had but that he didn't let her in (ts 98).
That evidence was, on one view, capable of falsifying the second alleged lie.
The matter was taken up in cross‑examination by counsel for Mr Pennington. It is appropriate to set out the relevant interchange in full:
All right. And the first person you called to inquire about Cariad's whereabouts was Mr Pennington---Correct.
Right. So you speak to Mr Pennington first---Mm.
Then you go and talk to Mr McKenzie---Yes.
Then you come back to Mr Pennington---Only because Mr McKenzie said - his words - when I said that she - he said that she'd gone to Mr Pennington's. Then I rang Mr Pennington, and he said she wasn't there. And Mr McKenzie said, 'That's - that's bullshit'.
But - but just so we're clear on this------'The taxi took her there'. Yeah.
- - - what Mr Pennington had said to you was that she hadn't come to his house. Correct---Correct.
He'd told you that---Correct.
And he never said to you that, in fact, he came - she came to his house, did he---He never said - he told me that she never came to the house.
Yes---But then later he told me that she had called and come but that he wouldn't let her in.
I'm not trying to confuse you, but just so we're clear------That's all I can remember.
- - - at no stage at any time did------Yeah.
- - - Mr Pennington ever say to you that she had actually come to his house---No, he - he denied it.
Okay. What he did tell you the second time was that yes, she had called him, but reiterated she hadn't come to his house---It wasn't quite like that. He said that she'd come but he didn't let her in.
Right---That he locked the door. Those were his words.
Okay.
...
Mr Slater, just before we show you something from the video, I just want to take you again to something you've just told us. You said that you spoke to Mr Pennington, on the Wednesday, and he told you he hadn't seen Cariad, or something to that effect. And then you spoke to Mr McKenzie, which led you to then speak to Mr Pennington agai---n?---Yes.
Right. Tell us again what it is you say that Mr Pennington said to you---He said - he first told me that she had never been there.
Mm---And then when I challenged him, after speaking with the neighbour that she had in fact taken a taxi there, he then said, 'Oh yeah, she did call. She did say she was coming round but I didn't let her in'.
You said something about locking a door---Locking the door, yeah.
Well, sorry, it's your evidence - - ----Yeah, he - well, that's the same. He didn't let her in.
What did he say---He claimed he didn't let her in.
All right. So that's - you say his words were, 'I didn't let her in'---Yeah.
His words were that he told you that 'She had rung him but that he had not seen her as she had not arrived'---Yes.
Well, let's - lets - - ----Well, that's what he first - yeah. But then when I challenged who - - -
No, Mr Slater, sorry, let me make this clear and then you can answer it. When you had already spoken to Mr McKenzie to clarify and then spoke to Mr Pennington again---Mm.
What Mr Pennington said to you was that, 'She', Cariad, 'had rung him but that he had not seen her as she had not arrived'. That's what he said to you---The first time he said that.
No, I'm suggesting to you that's what he said the second time---Mm.
What do you say about that? Is that right or wrong---Well, he said he - he said she hadn't arrived.
Mr Slater - - ----Or that he hadn't let her in. One or the other.
Okay. Let me make this clear---Mm.
After you'd spoken to Mr McKenzie, so the second time, what Mr Pennington said to you was that, 'She had rung him but that he had not seen her as she had not arrived'. Do you agree that that is what he said to you the second time---that is correct. He also said that he didn't tell me the first time - - -
Yeah------ because he didn't want to upset me.
And just so we're clear - - ----Those were his words.
- - - those words I've just read to you---Yeah.
Were the words from your very own statement, weren't they---Yes. Yes.
Right. And so when you said earlier that he said something about she came but he had to lock the door, that wasn't something he said, was it---Yes.
Okay. You never - - ----He said both those things.
Okay. You made many - we've already talked about the fact that you've made many statements over the time------Yes.
- - - about this. The most recent being in 2011. Yes---Yes.
In your statement in 2011, the only thing you tell the police that he told you during that second conversation------Mm.
- - - was that, 'Ron then admitted that she had rung him but that he had not seen Cariad as she had not arrived. Ron told me that he hadn't told me this the first time I called as he had not wanted to upset me'---Yes.
Right. You agree that in that statement you made no mention that Ron on the second conversation said anything about her coming or locking a door or anything like that. Do you agree---Sorry, could you repeat that?
Yes. Do you agree that in that 2011 statement------Mm.
- - - the only conversation you said you had had about - about this------Mm.
- - - was that Ron had admitted that Cariad had rung him. He told you that he had not seen Cariad as she didn't arrive and he hadn't told you this the first time as he didn't want to upset you---Yes.
You agree that that's what you - - ----This is what I said in 2011?
That's right---Yes.
I want to suggest it's also what you said in 1992---Yes.
Correct? Yes---Yes.
And that you have never, before today, suggested to any police officer or other person that Ron said anything more than that. Do you agree with that---I agree to the extent of what I've said in the statement but there were several things he said after she disappeared, after the police interviews that he told - he confided in me.
But we're talking here about a conversation you had with him - - ----Yes.
- - - on the Wednesday, are we not---I cannot recall the exact conversation back then but I'm just saying that he claimed - and I don't know how - other words you want me to put it, but he claimed that he didn't let her in or that she didn't arrive. One or the other.
Okay. So now you're saying------Or that - all I'm saying is I cannot exactly remember which of those two conclusions occurred but that he did not let her in. That - those were his words.
Okay. But you also agree that he may well have said she'd never arrived---Yes.
Right---Yes.
So in other words the point he reiterated to you both then and over and over again was, 'Look, she did call me but she never came. I never saw her'---Yeah.
Correct---He claimed - he claimed he never saw her.
That's right. And he - - ----In - in - in summary, he claimed he never saw her (ts 142 ‑ 146).

There are two reasons for setting out this lengthy interchange. First, the lengthy cross‑examination on the topic supports the view that the issue may well have attracted the attention of the jury. Second, viewed in its totality, the evidence given by Mr Slater on these topics was equivocal. On one view, Mr Slater's evidence was to the effect that Mr Pennington had told him that Ms Anderson‑Slater had never arrived at his house. On another view, parts of the evidence are capable of sustaining the conclusion that Mr Pennington had said to Mr Slater that she had arrived at the house but that he had refused to let her in. The equivocality of at least some aspects of Mr Slater's evidence supports the proposition that if the falsity of the second alleged lie was of any significance in the case, it was necessary and appropriate for the jury to be directed to the evidence that went to that issue.
That proposition is reinforced by similar equivocality in the evidence of Mr Gray, which also went to the falsification of the second alleged lie. The evidence‑in‑chief given by Mr Gray on this topic was as follows:
ASTILL, MR: Yes---The other times that he'd speak is about when he'd be fully in his cups and he would be saying that she didn't come in the front door.
Okay. So 'fully in the cups' expression for when he'd been drinking, is that right---Yeah.
So when he would get intoxicated---When he would be intoxicated.
How often did that happen---I couldn't remember - couldn't give you a sort of day-by - day-by-day blow but it was pretty regular, certainly each - each week and probably, I'd say - I couldn't say exactly, but it was certainly regular.
And you said that he would talk about Cariad and the door when he was in his cups. What would - what would he say? Can you describe that for us---Yeah, I would - what he would do is he would - he would go up to the front door and he would point at the, you know, the snib lock.
And so the front door, you mentioned a snib lock, was that on - - ----Sorry.
That's fine. The snib lock was that on the wooden door or was there a security door---From memory - no, it was the wooden door.
Okay. And you were talking about the snib lock on the - - ----Yeah, he would - he would - - -
What is a snib lock---Well, it's, you know, the little Yale type locks that - you're [sic] little brass twist to open it and it also had a little snib on it as well to - to lock it from the inside.
So that's different to like a key lock or something along those lines---Well, open with a key on the outside - from the outside.
But just the mechanism for locking inside without having to use the key---Yeah, that's right, yep, yep.
I see. So he would point to the snib lock---Yeah. And he would say that, you know, she didn't come in the effing door.
'Effing', was that his word---No.
Okay. Well, what did - what was the word that he would use---'Fucking door'.
Okay. So he's pointing at the door and saying, 'She's not coming in that - - ----He - he would - he'd be saying that he - he heard a knock and he told her, 'Fuck off.' And the - that's when he - then we say then he would be pointing at the wood - the door and she didn't come in that - the fucking door.
So sorry, he said he heard what---Sorry, he what?
ASTILL, MR: You - you said that he - - -
McKECHNIE J: Heard a knock.
ASTILL, MR: Heard a knock. Thank you, your Honour.
McKECHNIE J: And told her to fuck off---Yeah, yeah.
ASTILL, MR: Yes.
McKECHNIE J: Then he said he didn't come to the fucking door---He stayed in bed and she didn't come in the door.
ASTILL, MR: Thank you. How was he appearing when he was saying this? Can you describe his - his - his demeanour, how he was - was he saying it loudly, quietly---With some passion.
Well, what - what do you mean by 'some' - - ----Well, he wouldn't be shrieking or carrying on, but he would certainly be, you know, very emphatic about it and he'd be pointing at the - at the door lock and this was a sort of fairly regular thing (ts 279 ‑ 280).
The issue was taken up by counsel for Mr Pennington in cross‑examination. The following interchange took place:
Sure. And the - in the times - all of the times that he spoke about this lady, Cariad, who had come to the house, on every occasion he ever spoke about her he always told you that she never came into the house? Correct---That's correct.
Right. Did he tell you ever about a telephone call that he had received---I - I don't recall.
All right. What I want to suggest to you is that you------Sorry, I - I have a recollection, I think he may have told me at one stage that she had called him---
Yes---- - - before he came round. I think is that what you're---
Yes. And that he told you that when she had called him, in effect he was saying 'I told her to fuck off, to not come around'---That's correct.
Right. And that what I want to suggest was that you've told us yesterday that Ron Pennington said to you that he had sort of heard a knock at the door and told whoever it was to 'fuck off'---That is correct.
All right. What I want to suggest that what he was telling you was that this person had come to the door, he hadn't let her in, and he said he'd told her to 'fuck off', yes---That is correct, yeah.
But he was - he was saying to you that that's what he had told her when she had rung him to ask to come around---That's correct (ts 287).
That passage, viewed in isolation, is capable of sustaining the proposition that Mr Pennington told Mr Gray that he had told Ms Anderson‑Slater to 'fuck off' when she telephoned, not when she arrived at the house.
However, the matter was taken up in re‑examination, when the following interchange occurred:
Mr Gray, you were asked some questions by my learned friend about Mr Pennington talking about telling the woman to fuck off. Do you remember those questions---Sorry; could you repeat that? I couldn't hear you.
Certainly. You were asked some questions about when Mr Pennington told - or talking to you about telling the woman to fuck off. My friend was talking to you about how he had received a telephone call and------Yeah, yeah.
Yes. And he was talking about telling the woman to fuck off when - do you remember those questions---Yes, I do. Yeah.
Okay. When was it - when Mr Pennington was talking about telling this woman to fuck off, when was it that he said - he actually said those words in the sequence of events---Well, I mean, it wasn't every time that he would be having a few drinks there. So I - I can't sort of really answer that, because - because sometimes he would mention it, other times he wouldn't.
Okay. But when - when does he say - or when did he tell you that he actually told her to fuck off, as in------As in the phone call?
Yes---I can't recall when it was the first time. I'm sorry.
Well, you talked first of all about a door. You know, he was - he was at - he was at the door---At the front door?
ASTILL, MR: Yes. And then you've talked about a telephone call. Can you remember which - when it was that he says that he told her to 'fuck off'---I'm sorry, I'm not quite with you as far as the question's concerned.
McKECHNIE J: And he's not alone.
ASTILL, MS: Certainly, your Honour. In your evidence-in-chief you talked about him walking up to the door and pointing and telling------Mm.
- - - her that he had told her to 'fuck off'. Do you remember that evidence---Yeah, yeah.
And then in response to my friend's questions you talked about him receiving a telephone call and - and telling her to 'fuck off'---Mm.
Which - at what time did he tell her to 'fuck off', do you know? Was it at the door or on the telephone call---Well, I'd forgotten about the telephone but - so - up until now. Well, the - as I understand it, the - she had phoned him firstly to say she was - as I understood---
Not what you understood, but what - what did Mr Pennington say to you---He just said - well, when he did tell me about it, that she'd phoned up, similar sort of words. He told her 'Don't fucking come around' I think is essentially what he said and then when - when there was a knock at the door, I assume that he assumed that that was Cariad and told her to 'fuck off'.
So sorry, are you talking about - I just want to be clear in relation to this, Mr - Mr Gray. So there's the time on the telephone---Yeah.
And what about the door---Well, as far as the time if that's what you're meaning, I mean, as I understood it from what he was saying that she had phoned him before she came around, but she came around anyway.
Yes---And then he heard the knocking on the door and I assume that he had assumed it was Cariad and gave her the message.
What message---'Fuck off' (ts 293 ‑ 294).
The same propositions emerge from Mr Gray's evidence on these issues as emerge from Mr Slater's evidence. First, the attention directed to these issues by both counsel is such that it was likely to have attracted the attention of the jury. Second, if the question of whether Mr Pennington told the second alleged lie was a significant question in the case, the evidence of each of Mr Slater and Mr Gray on that question was, at points, equivocal, and required detailed consideration and, at least arguably, an appropriately detailed direction from the trial judge.
In summary, on the evidence, there seems to be little doubt that the first alleged lie, to the extent that Mr Pennington's omission to refer to the telephone call in his first conversation with Mr Slater can be characterised a lie (as to which see below) was falsified by Mr Pennington's admission to police that he had not told Mr Slater about the telephone call in his initial conversation with him. However, Mr Pennington repeatedly sought to justify that omission by reference to his desire to avoid Mr Slater thinking that he was having an affair with Mr Slater's wife.
In relation to the second alleged lie, Mr Pennington consistently told police that he did not hear Ms Anderson‑Slater arrive at the house, and that if she did, he slept through the entire episode. The evidence of the statements made by Mr Pennington to each of Mr Slater and Mr Gray is capable of falsifying those statements; the evidence of Mr Gray being significantly stronger in that regard than that given by Mr Slater. However, aspects of the evidence given by each of Mr Slater and Mr Gray on this topic were somewhat equivocal.

References to the alleged lies by counsel

I have already referred to the extent to which these issues were addressed by counsel in the course of oral evidence. It is now necessary to assess the references made to these issues by counsel in the course of their opening and closing addresses.

Opening addresses

In the course of his opening address, the prosecutor made a brief reference to the first alleged lie in the following terms:
He [Mr Slater] contacted Mr Pennington by telephone and Mr Pennington told him that he had not seen her since they'd left as a couple the previous night after the discussion about royalty. Mr Pennington did not tell Mr Slater that she had phoned in the early hours of the morning. He later said that he didn't tell Mr Slater that because he didn't want Slater to think that he was having an affair with Cariad (ts 71).
The prosecutor made no reference to the use, if any, which the jury might make of Mr Pennington's omission to tell Mr Slater about the telephone call he had received, nor was any reference made to the second alleged lie in the course of his opening remarks. Defence counsel made no reference to any lies allegedly told by Mr Pennington in the course of her opening remarks which were largely directed towards the proposition that the jury might entertain a real suspicion that Mr Slater had killed his wife, with the result that they could not be satisfied beyond reasonable doubt of the guilt of Mr Pennington.

The prosecution's closing address

By contrast to the opening address, the prosecutor made numerous references to the statements made by Mr Pennington to the police and others in his closing address, and these references formed a significant component of his address. At no point in the closing address did the prosecutor use the word 'lie'. However, it is necessary to place the observations of the prosecutor on this topic in their context, in order to glean the substance of the propositions that were being put to the jury.
At a relatively early stage in his closing remarks, the prosecutor suggested to the jury that they would have to give particular attention to the credibility of Mr Pennington and in particular the credibility of the various statements he made during the course of the video recorded interview in 2011 (ts 462 ‑ 463).
Brief reference was made to the first alleged lie at a relatively early point in the prosecutor's closing address, when he observed:
… Mr Pennington failed to tell David Slater about Cariad's early morning phone call. The reason he gave was that he thought Slater might think that they were having an affair. I'll come back to that (ts 468).
In that context, the prosecutor referred to the relationship between Ms Anderson‑Slater and Mr Pennington in these terms:
And he refers to Cariad as Slater's lovely. She is an attractive woman, as you can tell from the photograph. And in the period up to 13 July when she goes missing in 1992, it seems the Slaters together went to his place on 30 June, on 1 July, and then again finally on 12 July. And that's when they're together. But even in that first meeting at the art gallery on Sunday, 28 June, Ron Pennington is alone with Cariad Slater because David Slater goes off to find - get the books that he's going to have restored. So they have this opportunity where they're together for a period of time at the art gallery (ts 469).The proposition that the jury should pay particular attention to Mr Pennington's credibility was developed and emphasised a little later in the following portion of the prosecutor's closing address:
And you also need to look at Ron Pennington. You also need to have a close look at the way Ron Pennington interacted with the police. You've got three statements from him - four statements, I'm sorry, from him; 22 July, which seems to be the first real contact he has with the police when they're looking for Cariad as a missing person. That's the short one. And you've even seen it or you will see it. Another one five days later on 27 July which is a little more detailed. One on 12 August in handwriting, the one we've just mentioned a little while ago. And with the little annexure at the back of it, it becomes the statement on 18 August. You've got the diary, and you've got the recording of the interview on 28 February 2011. You'll have that to play. As you know, it took time. You can play all of it, none of it, some of it, fast forward it. It's up to you what you do with it. But the State says to you it's important. It's important not just for what Ron Pennington says to the police. It's important for what he doesn't say, and it's important for the way in which he goes about it.
I mentioned to you the - what I've called the waving around of the diary, the wanting to rely upon it. But there's also the point in the - or the points, I should say, within that interview process where whenever he gets the opportunity, he tries to deflect the focus back onto David Slater. The references to the gate, for example, that's supposed to be so heavy and hard to move. Well, David Slater had been there twice or perhaps three times before the night of the 12th. So four times maybe overall. There's no suggestion in any of those - he was there with his wife on at least three of them. The other time seems as though it might have been a time when he picked up Mr Pennington and took him over to their place for dinner. There's no suggestion that he had any reason to go into the backyard at that point. Ron Pennington suggests he did. And Slater says, well, he may have after Cariad went missing, not before. Why would he have a reason to go round the side? And he says when he went in to the backyard, he went with Pennington through the house. Isn't that what you would expect? If you go to visit somebody and they say, 'Come out and have a drink in the backyard', you don't walk round the side of the house. You go through the door and out the back. So why is he saying, you know, 'Focus on this gate that I - you know, I'm a puny little fellow. I couldn't deal with it. Hercules Slater, he's the one who can move the gate'. It's because he's got to try and persuade the police that somebody else buried that body in his backyard. And I'll come back to that. But in the interview, he can't get his story straight about what happened after Cariad's phone call on Monday morning, 13 July. You'll recall that the taxi driver said the porch light was on. In fact, the way the taxi driver, Ross Powell, was describing what was happening at that particular point was they were looking for - she'd said something about Liege Street apparently when you look at the map, and he was driving around trying to find this street that she wanted. And eventually she looked at something, and she seems to have the wrong number; 47 instead of 67. But all of a sudden, there's one house in the street with a light on. That's it. That's the one they go to. And that's 67A. That's where she goes. And he watches her going to the door, sees her get to the door safely, and turns around and drives away. He's doing the right thing, seeing this lady who's drunk, dressed unusually to be wandering around at night in nightwear, not too sure of where she is apparently, he does the right thing and sees her go to the door. What he doesn't know, of course, is that the danger for her is behind the door, not out in the street. And he's asked, of course, about that porch light. In exhibit 9, which is his first statement on 22 July, he says that the phone call was the last conversation he had with Cariad, and he had not heard or seen from her again. In the statement of 27 July, the next one: I never heard her knock on the door or come to my house. The front light was on. It's always on to deter burglars. In the statement of 18 August, the typed one; and it's the same as the one of the 12th: After the phone call, I locked the door and I went to bed. It was usual for me to lock the snib. And you heard Mr Gray telling you what the snib is. And you're probably all familiar with those old-style Yale and Lockwood locks. But then you've got what Mr Gray says. And you may remember his evidence. It took a while to get it clear. But at the end of the day, at - in his re-examination at page 294 of the transcript, it finally became clear. And he said this, Mr Gray, that he heard the knock - this is what Ron had told him, and what he'd seen when he's pointing at the snib when he's drunk: He heard the knocking on the door. And I assume that he assumed it was Cariad. And he gave her the message, 'Fuck off'. This is the sort of message he told Gray he'd given her on the phone, not to come. Then you have his version of events in the interview in 2011, that he got out of bed and he locked up, that he hung up the phone and he secured the place, that he stayed up for a few drinks and he stayed in his clothes. In his statement of August - 18 August, he said he got undressed and went back to bed. He changed his mind about that. There are a few other things that he changes his mind about too, things like Cariad's dress when she went round there on the 12th. He said it involved some - I think it was brown pants that looked like riding pants. But by the time he was interviewed in 2011, she was wearing a frock.
There are other little bits. And you may think, 'Well, there are going to be some small variations because of the time lapse'. It's a matter for you. Those things maybe aren't so important. But crucial things like the light and what he did in relation to that are important, you may think anyway. And in that statement, he says he doesn't know if the porch light was on or off, that it was normally off; not normally on to deter burglars, but normally off, and that he would only leave it on if somebody was coming. And we know it was on. We know he knew that she was intending to come to see him. He told her not to, but he even acknowledged in the interview the possibility that she would come. And we know that she did.
We know that she's an alcoholic. We know that she was looking for a drink. We know that there were limited places where she might hope to get that. She couldn't get it at home. She'd had some at McKenzie's and they were getting tired of her. Ron Pennington's is the other place she goes. She's desperate for a drink. What do you think she would have done when she got to that door? Pennington goes on to say - Ron Pennington goes on to say: I turned the light off when they left, meaning when they left on the evening of the 12th. And he refers to the blackout in the - you know, as it was in the war, you turned the lights off. And then he says well, he must have turned it back on again, but he insists that he didn't want her to come in. And then he goes on to say well, one of his reasons for securing the place, she might get in, she might break in, really. That's serious. But then it becomes more bizarre. David might come. He's got to secure the place, windows and doors. David might come. You know, David is so angry about an argument about royalty and a republic that he's going to go around and break into somebody else's house? Well, even Ron Pennington realises that that one's not going to fly. So then he says well, you know, perhaps he had a bit of a suspicion that there was something going on between himself and Cariad. Of course, if you think about the timing, did he lock the doors and windows before she came or did he lock them after she'd come in and he had the problem with a dead body on his hands, the wife of this man he feared may come. Isn't that what happened? These are matters for you to think about. And of course, you've got what Mr Gray says about it. So he can't get his story straight. And that's partially because he's denied the diary. He gets the light wrong. He gets when the police searched his home wrong. See, that happened, we know, because you've got a copy of the warrant on 12 August. And yet he's suggesting to the police in the interview in February that that was much earlier than that (ts 478 ‑ 482).

The prosecutor asserted that Mr Pennington had deliberately misled police at other points in his closing address. He contended that Mr Pennington had obscured his true relationship with Ms Anderson‑Slater in the following terms:
So you've got this relationship developing. It's a bit more than Mr Pennington would perhaps when he's talking to the police have them believe. When you look at the diary - the entries in the diary, whether they involve things about sex or not, as I say, it probably doesn't matter. You can draw your own conclusions. But it's a relationship of sorts. And the State says to you it's a relationship that was causing Ron Pennington trouble. It was providing a reason why he might do what the State says that he did (ts 470).
…
And the second thing, of course, of importance that McKenzie says, he's listening when the phone call's being made to Ron Pennington and she says she wants to go round to talk, not for sex. He, of course, says he doesn't remember her saying that. But McKenzie remembers it. And you might think it's the sort of thing that someone listening to somebody's phone conversation might remember. So that's why she wanted to go there. So you have the other side of the coin if you like. There's a whole relationship here, the true extent of which Mr Pennington is covering up (ts 476).
At another point, the prosecutor asserted that Mr Pennington had misled police in relation to the plumber's recovery of material from the blocked sanitary pipe. He asserted:
He gets his story about the plumber a little wrong too because he tells the police that the plumber told him that what was in the pipe when it was opened up was perhaps a female's sanitary pad or pair of knickers. Now, Gray says that he was there, Pennington was there when the pipe was opened up. It's a different story. And of course, Mr Gray who was there gives you a different description. Not a description that's consistent with a lady's sanitary pad or a pair of knickers. It's a sleeve and it's various pieces of fabric. And who puts fabric down a toilet? Not what people normally do. And the only person that's been living in that house up to the point where Mr Gray and Mr Chong come in there over the relevant period when the toilet gets blocked is Mr Pennington (ts 482).
I have set out these lengthy portions of the prosecutor's closing address to demonstrate the emphasis which was given by the prosecutor to Mr Pennington's credibility generally and to his alleged changes of position, including the alleged second lie as to whether or not he heard Ms Anderson‑Slater arrive at his house in the early hours of 13 July 1992. In addition to the question of emphasis, it is also important to note that the prosecutor unequivocally suggests that Mr Pennington's purpose, in his communications with the police, was to 'deflect the focus back on to David Slater' (ts 479). That proposition was reinforced by later observations by the prosecutor in the following terms:
He takes every opportunity, as I think I said, to support his proposition to police that David Slater set him up (ts 482).
…
So you need to look at that recording from the perspective of seeing what Mr Pennington is trying to do to deflect suspicion to David Slater (ts 483).
…
So please don't look at David Slater's actions without thinking them through. You really need to give them some thought along the lines that I've suggested. And don't look at them without thinking what Ron Pennington is contributing with his theories. He's the one pushing the police towards Slater all the time (ts 492).
…
Mr Pennington actively encourages the police to think it is Slater (ts 496).
In addition to these passages, at another point the prosecutor suggested that Mr Pennington had placed entries in his diary relating to Mr Slater's activities with other women following the disappearance of his wife for the purpose of blackening Mr Slater's name and directing police attention towards him (ts 488). At another point he suggested to the jury that Mr Pennington's statement to police to the effect that he left his house to go to the hotel on Monday 13 July 1992 was for the purpose of giving Mr Slater a window of opportunity within which to bury the body of his wife at the rear of Mr Pennington's house (ts 495).
The general thrust of the prosecutor's closing address is pellucidly clear. It is to the effect that the jury should conclude that Mr Pennington went to considerable pains to cast suspicion upon Mr Slater in order to divert suspicion from himself. Clearly implicit in that proposition is that Mr Pennington was trying to obscure his own guilt. That is the context in which the prosecutor's reference in substance to the alleged lies must be viewed. Viewed in that context, although the prosecutor did not use the word 'lie', it is clear that he was suggesting to the jury that they should conclude that Mr Pennington was lying to police. The references to his change of position and not getting his story straight must have conveyed that meaning. Further, although the prosecutor did not use terms familiar to lawyers such as 'consciousness of guilt', viewed in context it is clear that the prosecutor was suggesting to the jury that they should use Mr Pennington's alleged lies as the basis for concluding that he was aware of, and attempting to obscure or conceal his own guilt.
The passages I have set out above are not the only passages in which reference was made by the prosecutor, in substance, to the alleged lies in his closing address. Reference was made to the first alleged lie in the following terms:
Ron Pennington doesn't tell Slater that she rang because he doesn't want him to think that they're having an affair, although you would think if somebody approached you and said, 'My wife is missing. Do you know anything about it?' you would say, 'Well, I haven't seen her, but she rang me', because that might be - if you're going to the police, that might be an important thing for the police to look at, or for anybody looking for her, even - including the husband, to know about. But no, he doesn't (ts 497).
The prosecutor also referred to the second alleged lie in the following passage:
Mr Gray sees Ron Pennington saying he told her to fuck off at the door, which is a variation on Ron Pennington's version of it, that he says he slept through it. And you would think that this woman who's desperate for alcohol who turns up there and who's rung him not so long before would be making a fair bit of racket on the door trying to get in. And he himself says, well, he had a few - after she rang, he had a few drinks, went back to bed. There's some difference as to whether he was dressed or undressed - got undressed, rather (ts 498).
Another reference to the second alleged lie is contained in the following passage:
Now, according to Pennington, she's been knocked back at the door, either on Gray's version, because Gray says that he came to the door and told her to fuck off, or on his version that he didn't wake up at all. But in any event, she gets to the door and gets no further on his version (ts 494).
In summary, when the prosecutor's address is read as a whole, it is clear that substantial reliance was placed upon each of the alleged lies in order to support the proposition that the jury should conclude that Mr Pennington was aware of his involvement in the killing of Ms Anderson‑Slater, and had been at considerable pains to obscure or conceal his guilt, in particular by deflecting attention to Mr Slater, and in the course of those efforts had contradicted himself and the evidence of others and, implicitly, had lied on a number of occasions.

Defence closing address

It seems clear that defence counsel (who was not counsel on the appeal) understood the case put against her client in this way. At the conclusion of her address she endeavoured to summarise the prosecution case. She suggested to the jury that, in essence, the prosecution's case came down to the fact that Ms Anderson‑Slater was last seen approaching the door to Mr Pennington's house, and the fact that her body was later found in the backyard of that house. She then referred to the clothing which was found in the pipe connected to the toilet and disparaged that aspect of the prosecution case. She then said to the jury:
What else is there? 'Well', the prosecution will say, 'there's this lie; this lie when Ron was asked by David Slater if he had seen Cariad. He didn't tell him about the phone call'. Now, there's two aspects to this. The first is, he was asked whether he had seen Cariad, and he said no, he hadn't, which was true. What he did was - they say a lie by omission; that is, he hadn't volunteered, 'But she did call me'. He didn't add that bit in because he didn't want Slater to think he was having an affair. And you might think that sounds fairly rational. But importantly, it's not like he then never told anyone that. Within a few days he had told the police and told Slater that she had called. All right? It wasn't like it was a lie that he just hoped would never be uncovered. He just didn't say it to Slater the very first time Slater called and said his wife had gone missing. So Mr Slater rings. He doesn't say it in that call. But within a couple of days it's all out in the open. So the lie, I suggest to you, doesn't take you anywhere. Well, what's left? We've got her last seen coming up to his house, and the body in the backyard. Well, the next thing I think we have is, the prosecution would say that Mr Pennington told John Gray that he did hear her knock on the door and yelled, 'Fuck off'. Sorry to keep saying that. I've already taken you through that and suggested to you that that's just a red herring. It doesn't take you anywhere. He's always been clear that he didn't hear. And he showed the police that he couldn't hear from his room. We've dealt with the lights. The lights are gone. Well, what else have we got? I tried to note what the prosecution said, and I have to say I can't find much else (ts 528 ‑ 529).
It seems clear from this passage that defence counsel understood that the prosecution case relied upon each of the alleged lies which are the subject of this ground of appeal. She had referred to the second alleged lie twice earlier in her address. Early in that address, she cited as an example of inadvertent error on the part of the prosecutor, references which he had made to Mr Gray's evidence relating to the second alleged lie. In that context she said:
And that happened when the prosecutor addressed you, for example, he, at one stage, referred to Mr Gray's evidence and he said, 'Well, John Gray told you that Ron had told him that he, Ron, came to the door and told her to fuck off'. Now, that wasn't John Gray's evidence. John Gray never once said that Ron Pennington told anyone that Cariad Slater had come to the door. But it's something that was said so you need to be careful both when the prosecutor addressed you and when I address you that you don't just assume that we've got the facts right or the evidence right. You need to consider that for yourself (ts 504).
Later in her address she referred to Mr Gray's evidence in these terms:
Now, Mr Gray, I'd suggest to you - it's a matter for you - seemed to be a very decent, fair, sensible witness who did his best to try and remember a long time ago. And what Mr Gray originally told you was about this famous conversation; the conversation where when Mr Pennington got drunk it appears from Mr Gray he used to like talking about things and that's when he'd open up a bit.
And during one of these conversations Mr Pennington apparently said to Mr Gray as it came out in the prosecution's questions, 'Yeah, yeah, I never let her in. When she came round I told her to fuck off, I didn't let her in'. That's the essence of what Mr Gray said - not, by the way, that he went to the door and told her to - just that he told her to. And the only difference with that - with what Mr Pennington has always said is that he's never said that he heard the knock. So you need to think about well, is Mr Gray right or wrong about that? Did Mr Pennington say that and if so, is that something we can use as evidence that he's been telling lies? Well, there's [sic] a couple of problems. The first is everyone agreed that Mr Pennington invited John Lindley and another police officer round to his house to demonstrate to them that you wouldn't hear a knock from his bedroom. And after a little bit of time Detective Lindley fairly - I think he's superintendent now but anyway - fairly conceded that you - that he couldn't - he understands he couldn't hear the knock. So when you're in Ron Pennington's room you wouldn't hear the knock. So if Mr Pennington was going around telling people he'd heard the knock but told her to fuck off then it does seem a little odd that he would do that. But in any event the other thing Mr Gray very fairly conceded when I asked him the questions was this: he agreed he forgot that Ron had actually told him about a phone call from Cariad and we all know that the gist of what Ron said to Cariad on that phone call - it's not in dispute - was effectively, 'Don't come around, I don't want you here, fuck off' - that that was the gist of it. And so I want to suggest to you that Mr Gray accepts the possibility that it may have been in that context he heard it. And whether or not he accepts it you may well find that there may have been room for a bit of confusion. What's important, of course, is that Mr Gray - and if he fairly says this I - he often said, 'I assumed he was saying' or 'I think that's what he' - he's trying to tell you what Ron said to him a long, long time ago while Ron was drunk. You can imagine the reliability of every little word that Mr Gray did or didn't hear. He's just done his best to reconstruct history. What is clear is you saw five hours of two experienced detectives putting the pressure on Mr Pennington attacking him this side and this side, being nice, being strong, accusing, not accusing, giving him a chance to share his theory. And yet no matter what they did, no matter what they said, no matter how they said it he kept saying, 'What can I say? I didn't let her in. I didn't let her in'. And then they said, 'Well, you tell us what did happen. Tell us what Mr Slater did do'. He doesn't know; he just went to bed passed out on alcohol and woke up and spoke to his friend, Tracey. He can share all the theories he likes; he's got no more idea than you or I. All he can say is, 'I don't know. I now know that she supposedly knocked on my door. I didn't hear it. I now know that that was the last time she was seen. I didn't see her and I haven't seen her since'. So that's Mr Gray (ts 513 ‑ 514).
It is worthy of note that defence counsel described Mr Gray's evidence of his conversation with Mr Pennington as 'this famous conversation'. That description of the evidence reinforces the inference which I have drawn as to the significance of this issue in the context of the trial as a whole. That conclusion is further reinforced by the length of time defence counsel spent specifically addressing Mr Gray's evidence on the topic in the course of a relatively brief closing address.
In summary, although neither counsel opened at any significant length on the alleged lies, it seems clear that by the time of closing addresses the alleged lies had each become a significant issue in the case.

The directions given by the trial judge

The directions given by the trial judge to the jury which bear upon this issue were very limited and can be identified briefly. The trial judge introduced his remarks to the jury with what might be described as conventional directions in relation to the credibility of witnesses, including the proposition that the jury need not find that all the evidence given by one or other witness was true, or false, as the case may be. His Honour elaborated:
I don't think I've ever met anyone who always tells the truth but some people almost always tell the truth. Some people generally lie. Many people will tell the truth about some things and not about others. You are uniquely situated to sort all that out. But the first question really is, is this a witness I can believe? Is this a witness that is giving me what I regard as truthful evidence? And the second is, well, is it reliable? Is it reliable evidence? (ts 552 ‑ 553)
In that portion of his address in which the trial judge summarised the arguments put by counsel for the parties he referred to the prosecutor going through a number of matters in the video record of interview 'where he submitted the accused could not get his story straight and was constantly trying to deflect suspicion onto David Slater' (ts 557).
In his summary of the address given by defence counsel, the trial judge observed to the jury:
She discounts for you the lie said to have been told by the accused to Mr Slater about whether he had seen the deceased. She pointed out that within a few days he'd told police and Mr Slater that he had seen [sic], and finally, she submitted that the State's case is simply because she was last seen at the back door [sic - front door] and found buried in the backyard, that doesn't come close to being proof beyond reasonable doubt that he unlawfully killed or murdered her (ts 561).
This passage appears, with respect, to conflate the two alleged lies and to misstate the evidence with respect to the statements made by Mr Pennington to the police. In those statements he consistently denied seeing Ms Anderson‑Slater at his house in the early morning of 13 July 1992, although he admitted that she had telephoned him.
There do not appear to be any other relevant references in the trial judge's directions to the jury which bear upon the issues raised by ground 3 of the appeal.
Neither the prosecutor nor defence counsel sought any relevant redirection or additional direction (ts 564).

Lies by omission

Before dealing with the general legal principles applicable when it is alleged that lies have been told by an accused, it is appropriate to first consider the extent to which a failure to make a statement can properly be characterised as a 'lie'. Strictly speaking, as Le Miere J observed in Leighton v Garnham [2012] WASC 314, one view is that:
Since lying requires that a person make a statement, it is not possible for a person to lie by omission.
However, it has been held that, in some circumstances, selective silence or a conscious omission of events from a detailed account may provide a basis for the inference of a consciousness of guilt - see Woon v The Queen (1964) 109 CLR 529, 541 (Windeyer J); R v Cuenco [2007] VSCA 41; (2007) 16 VR 118 [20] (Nettle JA, Maxwell P & Redlich JA agreeing); Johnstone v The Queen [2011] VSCA 60; (2011) 31 VR 320 [53]; R v De Marco (Unreported, VSCA, Library No BC9702902, 26 June 1997) (Tadgell JA).
As I have noted, Mr Slater's evidence with respect to the precise terms of his conversations with Mr Pennington is somewhat equivocal. However, in his statements to police, Mr Pennington admitted that when Mr Slater telephoned him the day after Ms Anderson‑Slater had disappeared, he did not tell Mr Slater of the telephone call which he had received in the early hours of the morning of 13 July 1992. He proffered an explanation for that omission which suggested that he had turned his mind to the question of whether he should advise Mr Slater of the telephone call, but decided not to because he did not want to cause Mr Slater to think that he was having an affair with Mr Slater's wife.
It was open to the jury to conclude that, in the circumstances of Ms Anderson‑Slater's disappearance, an innocent person in Mr Pennington's position would have told Mr Slater of the telephone call from his missing wife. In that context, it was up to the jury to determine whether or not they accepted the explanation proffered by Mr Pennington for his failure to tell Mr Slater of the telephone call until some time later. In those circumstances, Mr Pennington's failure to tell Mr Slater of the telephone call was a fact which could have been taken by the jury to be evidence of an awareness of his guilt, if the various conditions specified in Edwards were met. Although such an omission may not be strictly speaking, a 'lie', the same legal principles apply to such an omission, and it is convenient in this case to characterise the omission as a 'lie', albeit imprecisely.

Nevertheless, it is neither necessary nor profitable to speculate upon whether any or all of the participants in the trial process in fact gave consideration to the question of whether a direction on lies, in one form or another, should be given, but decided not to raise the issue.
The subjective views of counsel are not relevant: see the observations of Kirby J in Zoneff [71]. What is, however, relevant to the question of whether there was a miscarriage of justice is whether there was an objective rational forensic reason which might provide an explanation for the failure of trial counsel for Mr Pennington to seek a direction with respect to the lies allegedly told by him.
As Professor C R Williams has observed (Williams CR, 'Lies as Evidence' (2005) 26 Aust Bar Rev 313, 321), in many cases each of the prosecution and defence may have an objective, rational forensic reason for not seeking an Edwards direction. From the perspective of the prosecution, an Edwards direction and the specification of the relatively stringent conditions which must be met before the jury can use the alleged lies as evidence of guilt may reduce the prospect of the jury using the lies in that way. From the perspective of the defence, an Edwards direction, which is necessarily of some length and complexity, creates the risk that the jury may focus significant attention upon the lies allegedly told by the accused, to his or her detriment.
In the present case, an appropriate Edwards direction would undoubtedly have drawn greater attention to the lies allegedly told by the accused. To that extent, it might reasonably be contended that there was an objective rational forensic explanation for the failure of defence counsel to seek a direction in those terms. On the other hand, however, as I have pointed out, the lies attributed to the accused had become a prominent feature of the case long before the trial judge gave his directions to the jury. Significant portions of the evidence were directed to these issues, as were significant portions of the prosecutor's closing address. Defence counsel herself drew specific attention to what she expressly described as 'lies' allegedly told by the accused in the important part of her closing address in which she summarised the State case against her client. In that portion of her address, she specifically identified the two alleged lies which are the subject of ground 3 in the appeal. Earlier in her address, she had characterised the evidence of Mr Gray as relating to 'this famous conversation'. In those circumstances, it is difficult to identify any rational forensic explanation for her failure to request that the trial judge give an Edwards direction. The stringency of the conditions which the trial judge would have specified to the jury as pre‑requisites to their use of the alleged lies as evidence probative of guilt could only have reduced the prospect of the jury reasoning in that way. In the case of the first alleged lie, the component of the direction to the effect that the lie could only be used by the jury as evidence of guilt if they concluded that it was explicable only on the basis that the truth would implicate the accused in the offence with which he was charged, and had not been told for some other reason, would have very significantly reduced the prospect of the jury relying upon that lie as evidence of guilt, given Mr Pennington's repeated assertion that he did not want to offend Mr Slater by causing him to suspect that he was having an affair with Mr Slater's wife.
I have therefore concluded that in this particular case, there is no objective rational forensic explanation for the failure of defence counsel to request the prosecutor to specify which, if any, alleged lies were relied upon as evidence of guilt and to seek an Edwards direction in respect of those lies, and a Zoneff warning in respect of any other alleged lies.

The application of principle to this case

I have set out above the substantial portions of the evidence directed to the alleged lies the subject of this ground of appeal. Although the prosecutor did not use the word 'lie', or the expression 'consciousness of guilt' in his closing address, for the reasons I have given, the substance of his address to the jury clearly conveyed the proposition that Mr Pennington lied to obscure or conceal his own guilt and to deflect suspicion upon Mr Slater. Defence counsel addressed the jury on the same basis. In those circumstances, there was at least a reasonable possibility, indeed I would say a probability, that the jury would have assessed each of the lies allegedly told by Mr Pennington and which are the subject of this ground of appeal as probative lies without the benefit of an Edwards direction identifying the conditions which had to be met before they could use those lies as evidence of guilt.
This was a case in which it was essential for the prosecution to be required to specify which of the lies attributed to the accused were relied upon as evidence of guilt and the basis upon which they were said to be capable of implicating Mr Pennington in the unlawful killing of Ms Anderson‑Slater. To the extent that the prosecution identified lies of that character, an Edwards direction was required in respect of those lies. To the extent that the prosecution asserted that Mr Pennington told lies which went only to the credibility of his statements to police, a Zoneff warning was required in respect of those lies. An appropriate Edwards direction in respect of the two alleged lies the subject of this ground would have identified those lies for the specific consideration of a jury, together with the evidence which was capable of sustaining the conclusion that the statements made by Mr Pennington were in fact lies. The equivocality of that evidence necessitated a clear direction to the jury precisely identifying the evidence which they should consider for that purpose. Although the component of an Edwards direction linking the materiality of the lie to the alleged offence was not so significant in this case (given that the materiality of each lie was relatively obvious), the component of an Edwards direction relating to other possible explanations for the lies would have been particularly significant in relation to the first alleged lie for the reasons I have given.
The significance of the misdirection on the subject of lies is heightened by the fact that in this case, as in Martinez, the prosecution case was otherwise entirely circumstantial (see Martinez[364]).
For these reasons, the failure to give an Edwards direction in respect of the two alleged lies the subject of ground 3 of the appeal and which the jury might well have regarded as evidence probative of guilt, combined with the failure to give a Zoneff warning in relation to lies by the accused which were incapable of being probative of guilt gave rise to a miscarriage of justice, irrespective of the failure of defence counsel to seek directions in those terms.

The proviso

The Director of Public Prosecutions conceded that if the court concluded that an Edwards direction was required, there was no scope for the application of the proviso contained in s 30(4) of the Criminal Appeals Act 2004 (WA). That concession was properly made. As I have concluded that the misdirection gave rise to at least a reasonable possibility that the jury may have used impermissible reasoning to arrive at the conclusion of guilt, it cannot be concluded that no substantial miscarriage of justice has occurred as the trial process has, to that extent, miscarried (see Weiss v The Queen [2005] HCA 81; (2005) 80 ALJR 444).
It follows that ground 3 of the appeal must be allowed and Mr Pennington's conviction quashed. I will consider the question of whether a retrial should be ordered after considering the other grounds of appeal. However, it can be readily accepted that even the prospect of a retrial has many undesirable aspects, having regard to the decades which elapsed between the disappearance of Ms Anderson‑Slater and Mr Pennington's trial, the difficulties which that delay posed for the trial process, the disruption to the lives of the witnesses and the anguish no doubt experienced by the members of Ms Anderson‑Slater's family, and the advanced age and poor health of Mr Pennington.
The difficulties for the criminal process created by the current state of the law with respect to lies by an accused are not unique to Western Australia. They have been the subject of forceful observations in other jurisdictions, notably Victoria.
In R v Shiers [2003] VSCA 179; (2003) 7 VR 174, Eames JA and Ashley AJA were both critical of the practice of seeking to rely on appeal on the absence of an Edwards direction when such a direction is not sought nor desired at trial. Ashley AJA stated that:
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.
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 [81] - [82].
Eames JA observed:
In concluding my remarks as to this ground, I express my agreement with the statements in the judgment of Ashley AJA as to the inappropriateness of the situation where at trial the accused through his or her counsel seeks not to have any direction given concerning consciousness of guilt, because to do so would highlight damaging evidence and reduce the prospects of acquittal, but then on appeal it is argued, usually through different counsel, that a direction ought to have been given. Whilst the courts would be slow to hold an accused bound by a decision taken by counsel at trial which produced a miscarriage of justice, the fact that such a decision was weighed and taken by competent counsel is a very strong indicator against the proposition that a miscarriage of justice had in fact occurred [77].
In R v Chang [2003] VSCA 149; (2003) 7 VR 236, a full Edwards direction was not given in relation to the accused's alleged lies and conduct. The accused was successful in appealing from the trial judge's failure to not give such a direction. In this context, Ormiston JA noted:
Yet again the court has before it an application for leave to appeal where the principal issue is the extent to which the trial judge should have given a warning as to evidence of consciousness of guilt in the manner prescribed by the High Court in Edwards v R. Yet again it is a case where, after discussion with experienced trial counsel, a very experienced trial judge has chosen not to give a direction on the subject except in relation to two specific lies. Counsel on both sides acquiesced in this course and it follows that no objection was taken to the form of the learned judge's charge. As is not uncommon, different counsel appearing before this court on appeal have contended now that the charge in this respect was totally inadequate. If it were not for the fact that this has occurred, in my experience and that of other members of the court, on a number of other occasions in relation to cases where evidence conventionally described as that of consciousness of guilt has been led, one would pass it off as a mere unfortunate oversight on the part of judge and counsel at the trial or the undue enthusiasm of counsel on appeal.
Neither of those explanations can be given in the present case and the reason is, I regret to say, to be found in the way the law has developed on this issue in the last decade, rather than any defect in understanding of judges and counsel involved in criminal trials. The law on the subject was looked at, if but briefly, by the High Court only last month in Dhanhoa v R, but in ways which evidenced three somewhat different approaches to the issue but without giving any new assistance to trial judges and lawyers. An intermediate Court of Appeal (and trial judges) can do little else than to attempt to apply Edwards, as it has been subsequently interpreted in cases such as Zoneff v R. Unfortunately, it is the complexity of a conventional Edwards direction and warning, and its need to examine and repeat often damning evidence, that has frightened trial judges and lawyers appearing for the accused into recharacterising evidence which otherwise would be treated as evidence of consciousness of guilt. It is remarkable that a rule, the origin of which can only have been to ensure a fair trial, has so frequently been seen as likely to cause unfairness or prejudice to the accused if followed to the extent apparently laid down in Edwards. If that be the case then, with the greatest of respect, it is perhaps time that the High Court looked at the detailed four-pronged requirements of Edwards so as to see whether the interests of justice might equally be served by a more succinct, if no less emphatic, warning as to the possible risks of drawing inferences too readily from this kind of evidence [1] - [2].
No doubt observations of this kind have prompted the Victorian legislature to act in an attempt to ameliorate the impact of the complexities of the law in this area - see the Jury Directions Act 2013 (Vic).
The remaining grounds of appeal can be considered briefly as, for the reasons which follow, they lack substance.

Ground 1

This ground asserts that the jury's verdict should be set aside because it was unreasonable or not supported by the evidence. This is the ground of appeal specifically identified in s 30(3)(a) of the Criminal Appeals Act 2004 (WA). The approach properly taken by this court when this ground of appeal is raised has been enunciated in many cases, including Martinez [5] ‑ [6], and need not be restated here.
Particulars provided in support of ground 1 rely upon the fact that there was no evidence that the cause of death was unlawful, and assert that there was no evidence that Mr Pennington unlawfully killed Ms Anderson‑Slater. However, each of those propositions appears to ignore the significant circumstantial evidence relied upon by the prosecution. That evidence established that Ms Anderson‑Slater was last seen alive approaching the door of the house of which Mr Pennington was the only occupant. Her remains were later found buried in the rear of that property. While it is, of course, a theoretical possibility that Ms Anderson‑Slater may have died of natural causes, or at the hand of someone other than Mr Pennington, the circumstances to which I have referred, including in particular the circumstance that her remains were concealed by being buried in the backyard of the property which Mr Pennington alone occupied were capable, in conjunction with the other evidence led at trial, of satisfying the jury to the requisite standard that Mr Pennington was guilty of unlawfully killing Ms Anderson‑Slater.
When an appellate court sets aside a jury's verdict on the ground that, having regard to the evidence, it is unreasonable or cannot be supported, the court frequently expresses its conclusion in terms of a verdict which is unsafe or unsatisfactory. See M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 492 (Mason CJ, Deane, Dawson & Toohey JJ).
It is a question of fact whether a conviction is unsafe or unsatisfactory. This court must decide the question by making its own independent assessment of the sufficiency and quality of the evidence, and determining whether, notwithstanding that there is evidence upon which a jury might convict, nevertheless it would be dangerous in the circumstances to permit the verdict to stand. See SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 [14] (French CJ, Gummow & Kiefel JJ).
On my perusal of the trial record, I am satisfied that, but for the misdirection on the subject of lies, the evidence at trial was not such as to preclude a jury, acting reasonably, from being satisfied that Mr Pennington was guilty of unlawfully killing the deceased. The evidence at trial does not require the conclusion that, irrespective of the relevant misdirection, the jury must necessarily have entertained a doubt about Mr Pennington's guilt. Subject to the relevant misdirection, the jury's verdict was not unreasonable and was supported by evidence that it was entitled to accept. There is no substance in ground 1. Leave to appeal should be refused.

Ground 2

Ground 2 asserts that the trial judge erred by providing the jury with a pathway to guilt that was not reasonably open on the evidence. Particulars provided in support of the ground assert that neither the concealment of the body of Ms Anderson‑Slater, nor the fact that a doctor was not called to attend to her, were capable of sustaining the conclusion that the cause of death was unlawful. Those propositions must be rejected for the same reasons as have been given in relation to the rejection of ground 1. The trial judge directed the jury that if they were not satisfied beyond reasonable doubt that Mr Pennington had buried the remains of Ms Anderson‑Slater in the backyard of his house, then he should be acquitted (ts 550). Cast in the language of lawyers, the trial judge directed the jury that a conclusion that Mr Pennington had buried the body of Ms Anderson‑Slater was an indispensible step on the path to a conclusion of guilt. However, quite properly the trial judge went on to direct the jury that if they were satisfied that Mr Pennington had buried Ms Anderson‑Slater's body in his backyard, it did not necessarily follow that he was guilty of any offence alleged against him (ts 550). However, a conclusion that Mr Pennington had buried the body is quite capable of sustaining an inference that Mr Pennington buried the body because he had something to hide - that being the fact that he had unlawfully caused her death. Similarly, the fact that no doctor was called to attend to Ms Anderson‑Slater is capable of supporting an inference to the effect that she did not die of natural causes.
Ground 2 is without substance. Leave to appeal should be refused.

Ground 4

Ground 4 asserts that there was a miscarriage of justice when the trial judge failed to direct the jury that a conclusion that the clothing found in the pipework between the toilet and the septic tank was clothing belonging to Ms Anderson‑Slater was an indispensible step on the path to a conclusion of guilt and therefore had to be proven beyond reasonable doubt.
This ground is misconceived. The possibility that the clothing found in the pipe leading from the toilet to the septic tank was that of the deceased was merely another circumstance in the State's circumstantial case. Unlike the proposition that Mr Pennington had buried Ms Anderson‑Slater in the backyard of his property, it was not an indispensible link in the chain leading to a conclusion of guilt, and a direction to that effect would have been erroneous.

Ground 4 is without substance. Leave to appeal should be refused.

Ground 5

This ground asserts that the trial judge failed to direct the jury as to the use which could be made of Mr Pennington's failure to attend work on Monday, 13 July 1992, being the day Ms Anderson‑Slater disappeared. It is argued that the prosecution relied upon Mr Pennington's failure to attend work as evidence of consciousness of guilt, with the consequence that a direction as to the limited circumstances in which post‑offence conduct can provide such evidence should have been given. However, the ground misconstrues the purpose and effect of the prosecutor's reference to the failure of Mr Pennington to attend work that day. The only reference made to that fact was made in the context of addressing the question of whether Mr Slater had an opportunity to attend Mr Pennington's house and, in his absence, bury his wife in the backyard of that property. The point being made by the prosecutor was that Mr Slater went to work that day, whereas Mr Pennington did not, thereby excluding the possibility that Mr Slater might have buried the body at Mr Pennington's house during that day. In the same context, as I have already noted, the prosecutor suggested to the jury that Mr Pennington's statement to police to the effect that he went to the pub that day for a few drinks was made for the purpose of providing Mr Slater with a window of opportunity within which he could have accessed the property in Mr Pennington's absence and buried his wife in the backyard (ts 495).
Mr Pennington advised the police that he did not attend work on that Monday because he was badly hung over and feeling sick. There was no realistic possibility that the jury might use Mr Pennington's failure to attend work that day as evidence of an awareness of guilt.
This ground of appeal is without substance. Leave to appeal should be refused.

Should there be a retrial?

The only ground of appeal which, if upheld, would, in the ordinary course, lead to the entry of a verdict of acquittal was ground 1, which asserts the insufficiency of the evidence to sustain a conviction. However, that ground should be dismissed. All other grounds of appeal allege misdirection by the trial judge. One of those grounds has succeeded. Ordinarily when an appeal is upheld because the trial process has miscarried, the appropriate order is a retrial.
However, on behalf of Mr Pennington it is submitted that in this case there should be no retrial having regard to the delay between the alleged offence and the first trial, the appellant's age and health, and the time he has already served in custody.
This submission should be rejected. If, as the State allege, Mr Pennington unlawfully killed Ms Anderson‑Slater, and concealed her remains in the backyard of his property, the delay between her death and his trial, and his consequential increase in age and deterioration in health are all the consequence of his conduct. Although, as I have noted, delay between the alleged commission of the offence and trial no doubt caused difficulties at the first trial, those difficulties were not insurmountable. There is no reason to suppose that those difficulties could not be again overcome at any retrial. Although it is unnecessary to deal with the appeal against sentence, on any view, the time he has served in custody is

but a fraction of the sentence he should appropriately receive if again convicted of the serious offence of unlawful killing.

The public interest in the due prosecution and conviction of offenders, the desirability of having the guilt or innocence of Mr Pennington finally determined by a tribunal of fact, and the serious nature of the offence alleged against him, require this court to order that there be a retrial.

Conclusion

For these reasons, I would uphold ground 3 but refuse leave to appeal in respect of all other grounds. Mr Pennington's conviction should be set aside and a retrial ordered.
BUSS JA: I agree with Martin CJ.
MAZZA JA: I agree with the Chief Justice.