R v Bonney and Millwood
[1998] QCA 375
•20/11/1998
IN THE COURT OF APPEAL [1998] QCA 375 SUPREME COURT OF QUEENSLAND C.A. No. 258 of 1998 C.A. No. 259 of 1998
Brisbane
[R v Bonney & Millwood]
THE QUEEN
v
MARK CHRISTOPHER BONNEY
and
LANCE MICHAEL MILLWOOD
(Applicants) Appellants McMurdo P Pincus JA Williams J
Judgment delivered 20 November 1998
Separate reasons for judgment of each member of the Court each concurring as to the
o rders made. IN EACH CASE - APPEAL AGAINST CONVICTION DISMISSED. APPLICATION
FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.
CATCHWORDS:
CRIMINAL LAW - appeals against conviction - co-accused - lies material to credit - whether trial judge’s summing up adequately explained when lies could be used against an accused - whether trial judge’s summing up adequately explained when the lies of one co- accused could be used against another co-accused - whether verdict unsafe and unsatisfactory - appeals dismissed.
CRIMINAL LAW - sentence applications - convictions for deprivation of liberty and causing grievous bodily harm - whether sentence of 6 years manifestly excessive - applications refused.
Edwards v The Queen (1993) 178 CLR 193. Counsel: Mrs D Richards for the applicant/appellant, Bonney.
Mr P Leask for the applicant/appellant, Millwood.
Mr D Meredith for the respondent.Solicitors: Legal Aid Queensland for the applicants/appellants.
Director of Public Prosecutions (Queensland) for the respondent.Hearing Date: 29 October 1998. REASONS FOR JUDGMENT - McMURDO P.
Judgment delivered 20 November 1998
1 I have read the reasons for judgment of Williams J., who has fully set out the facts and issues in this case.
2 I agree with Williams J. for the reasons he has given that there is nothing in the abandoned grounds of appeal.
3 Both Millwood and Bonney appeal against their conviction on the basis “that the trial judge did not clearly identify the evidence available in the case of each accused, and the circumstances and purposes for which it could be used”.
4 The complainant Barnes claimed he was viciously assaulted at about 6 p.m. by both appellants acting in concert. Bonney, in reply to a police question as to whether he had been at his unit on the day of the altercation replied, “No way. I was staying away because of the threats from Barnes.” During a conversation with police, Millwood was asked, “So who lives here?” He replied, “Mark Bonney.” “Where’s he now? --- Staying at friends.” and later “Lance, who else was with you? --- No one, mate. It was just me and that cunt Barnes.” Neighbours gave evidence that they saw Bonney at the scene, one identifying the time as 6.25 p.m. One neighbour heard at least three voices in the flat at the relevant time. Bonney and Millwood gave evidence that Bonney was indeed present for part of the altercation between Millwood and Barnes but took no part in it.
5 I agree with Williams J., largely for the reasons given by him, that, whilst it would have been preferable for the learned trial judge to have more clearly differentiated the cases against each appellant, there has been no resulting error occasioning a miscarriage of justice. The thrust of the evidence given by each of Bonney and Millwood was generally consistent with the other and once given became evidence in the other’s case. The Crown case was that they jointly concocted the version given by each of them in evidence. The learned trial judge sufficiently identified the evidence the jury could treat as lies in each case. The essence of each alleged lie was the same: the absence of Bonney from the scene. This situation is therefore quite different from cases such as Hauser v. R.[1] where one co-accused gives a record of interview exculpating himself but inculpating the other co-accused. Where that occurs, it is particularly important to clearly separate the evidence admissible against each co-accused. This was not such a case and a review of the summing up in its entirety shows the defence case in respect of and the prosecution case against each appellant was fairly and clearly put and left to the jury. The learned trial judge made it clear on a number of occasions that the matter for the jury’s consideration was whether Barnes’ evidence as to the elements of the offences charged could be accepted beyond reasonable doubt. There has been no error occasioning a miscarriage of justice in this respect.
[1] (1982) 6 A.Crim.R. 68.
6 Millwood also appeals against his conviction on the basis that:
“the learned trial judge erred in leaving the issue of material lies to the jury in circumstances where there was no material which was capable of amounting to material lies, and alternatively, the lies direction failed to differentiate between evidence relating to the appellant and the co-accused in circumstances where his Honour impermissibly combined the co-accused in the one direction”.
Prior to the commencement of addresses in accordance with common practice, his Honour and counsel considered matters of law and the following interchange occurred:
“HIS HONOUR: Anything else you would like me to leave? PROSECUTOR: Your Honour, a matter of lies. HIS HONOUR: Right. PROSECUTOR:
Your Honour, it would be my contention that in respect of Bonney, there is a lie to police about not being at the unit at all that day.
HIS HONOUR: Yes. PROSECUTOR:
So far as Millwood, is concerned, your Honour, the Crown would rely on two lies, again he’s (sic) assertion that he was alone at the unit.
HIS HONOUR: Yes.”
His Honour then ruled that the second matter referred to by the prosecutor was not a lie. The transcript reveals no subsequent discussion by counsel or ruling by his Honour on the question of lies. The defence did not submit that the question of lies ought not be addressed on by the prosecutor and it seems to have been accepted by counsel and his Honour that this was to be permitted. The Crown Prosecutor’s address is not in the record, but bearing in mind the discussion above, it seems likely that she invited the jury to find that the appellants had told lies to the police and to infer from that a consciousness of guilt on the part of each appellant.
7 In Edwards v. R.,[2] Deane, Dawson and Gaudron JJ. said:
[2] (1993) 178 C.L.R. 193.
“There is, however, a difficulty with the bare requirements in Reg. v. Lucas (Ruth) that a lie must be material and that it must be told from a consciousness of guilt. Again it is convenient to confine ourselves to that last requirement. A bare direction that consciousness of guilt is required does not provide sufficient guidance as to what matters indicate its presence. Unexplained, such a direction allows the jury to decide, in the light of all the evidence, that a lie was told with a consciousness of guilt and then to use that finding to corroborate some part of the evidence that led to the finding of a consciousness of guilt.
A lie can constitute an admission against interest only if it is concerned with some circumstance or event connected with the offence (i.e. it relates to a material issue) and if it was told by the accused in circumstances in which the explanation for the lie is that he knew that the truth would implicate him in the offence. Thus, in any case where a lie is relied upon to prove guilt, the lie should be precisely identified, as should the circumstances and events that are said to indicate that it constitutes an admission against interest. And the jury should be instructed that they may take the lie into account only if they are satisfied, having regard to those circumstances and events, that it reveals a knowledge of the offence or some aspect of it and that it was told because the accused knew that the truth of the matter about which he lied would implicate him in the offence, or, as was said in Reg. v. Lucas (Ruth), because of ‘a realisation of guilt and a fear of the truth’.
Moreover the jury should be instructed that there may be reasons for the telling of a lie apart from the realisation of guilt. A lie may be told out of panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the offence. The jury should be told that, if they accept that a reason of that kind is the explanation for the lie, they cannot regard it as an admission. It should be recognised that there is a risk that, if the jury are invited to consider a lie told by an accused, they will reason that he lied simply because he is guilty unless they are appropriately instructed with respect to these matters. And in many cases where there appears to be a departure from the truth it may not be possible to say that a deliberate lie has been told. The accused may be confused. He may not recollect something which, upon his memory being jolted in cross-examination, he subsequently does recollect.
If the telling of a lie by an accused is relied upon, not merely to strengthen the prosecution case, but as corroboration of some other evidence, the untruthfulness of the relevant statement must be established otherwise than through the evidence of the witness whose evidence is to be corroborated. If a witness required to be corroborated is believed in preference to the accused and this alone establishes the lie on the part of the accused, reliance upon the lie for corroboration would amount to the witness corroborating himself. That is a contradiction in terms.”[3]
[3] at 210-211.
8 Whilst it was not submitted here that the lies could be treated as corroboration of any witness, the prosecutor must have invited the jury to find that the lies showed a consciousness of guilt on behalf of each appellant, thereby strengthening the Crown case. Indeed, his Honour, in his summing up to the jury, when he dealt with the issue of lies, said:
“... lies, to be evidence against an individual ... .” (emphasis added)[4]
[4] record, 280.
His Honour was therefore telling the jury that they could treat a lie not only as relevant to credit but as evidence against the responsible appellant. In those circumstances, it is desirable that directions consistent with Edwards[5] be given.
[5] supra.
9 It is not claimed that an inadequate direction on this topic was given in respect of Bonney, such as would constitute error amounting to a miscarriage of justice. The full direction on this issue given by the learned trial judge is set out in the reasons of Williams J. and I will not repeat it here. Whilst the learned trial judge could have more methodically dealt with the matters raised in the passage in Edwards which I have set out, he did take care in directing the jury on this question. It must be remembered the alleged lie of each appellant was in essence about the same matter: the absence of Bonney from the scene of the altercation with Barnes. No injustice flows from his Honour combining the directions as to the lies of both appellants in those circumstances. In respect of Bonney, his Honour pointed out that Bonney in his own evidence admitted that he lied. Bonney’s evidence that he was present for some of the altercation between Millwood and Barnes, is evidence not only in Bonney’s trial but also in Millwood’s trial and was evidence from which the jury could conclude that either or both had lied on separate occasions to police. Millwood also gave evidence that Bonney was at the unit for part of the altercation with Barnes, although this was not specifically pointed out to the jury until his Honour later summarised the evidence, There was evidence for the jury to be satisfied that Millwood lied about Bonney’s absence from the scene to police and his Honour pointed out that evidence to the jury by referring to Millwood’s conversation with police. He fairly left that matter for the jury’s determination. His Honour adequately identified the alleged lies for the jury although it would have been preferable had he done so more clearly in respect of Millwood. His Honour told the jury the lie must be about a material matter. He then told the jury that the lie must be one “which a guilty person would tell having consciousness of guilt and with an intent to avoid the consequences of such guilt”. His Honour then went on to deal, in Bonney’s case, with the reasons raised by Bonney in evidence as why to he told the lie, other than from a realisation of guilt. Unfortunately, his Honour did not give such a specific direction in respect of Millwood, although he did, in a general way, summarise Millwood’s evidence later in his summing up. In his evidence in chief, Millwood did not refer to his conversation with police. During cross-examination he admitted he did not tell police that Bonney was present at the scene. He was not asked why he was inconsistent about this matter. When asked why he gave police other answers which were inconsistent with his evidence in court, he said it was because “all my head was jumbled up, I’d been through quite a trauma.”[6] There was no re- examination on that point.
[6] record, 198.
10 Whilst his Honour failed to direct the jury strictly in terms of Edwards as to reasons other than from a consciousness of guilt, that the appellant Millwood may have had for lying, the only explanation raised by the appellant Millwood was that he was confused and mistaken. Although his Honour did not specifically refer to this portion of Millwood’s evidence, he did tell the jury in respect of both appellants that they must be satisfied the lie was deliberate and was not “just a mistake or something of that sort” and that they must be “clearly lies”. His Honour did, in effect, invite the jury to consider the only explanation given by the appellant Millwood for his apparent lie, namely that it was not a deliberate lie, but a mistake, said out of confusion. His Honour also left for the jury’s consideration whether what Millwood said to police was a lie at all.
11 Although the directions as to how the jury should deal with the Crown submission that Millwood lied, thus showing a consciousness of guilt which could be used as evidence against him, were not as careful as they might have been, a thorough review of the summing up illustrates an adequate direction in all the circumstances, especially as it was not suggested the lie was one capable of corroborating another witness. I am satisfied that when the summing up as a whole is considered, there has been no error which would cause a miscarriage of justice in the circumstances of this case. I also note there were no redirections sought by counsel below on this point.
12 I would dismiss the appeals against conviction in each case.
13 As to the appeal against sentence, I agree with Williams J. for the reasons he has given that the application for leave to appeal against sentence should be refused. Whilst the sentence is at the upper end of the appropriate range, a substantial sentence should be imposed in cases of this sort to deter those who would take the law into their own hands to seek revenge, instead of relying solely on the remedies provided by the justice system.
14 I agree that in each case the appeal against conviction should be dismissed and the application for leave to appeal against sentence should be refused.
REASONS FOR JUDGMENT - PINCUS J.A.
Judgment delivered 20 November 1998
1 I have read the reasons of Williams J. and am in general agreement with them, subject to the following observations.
2 It seems clear that the trial judge’s directions on lies said to have been told by the two appellants were not in accord with the requirements set out in Lucas [1981] Q.B. 720 at 724, as explained in the principal set of reasons in the High Court of Edwards (1993) 178 C.L.R. 193, especially at 210. The difficulty is to determine whether Edwards applies here. The difference between lies which do and lies which do not require Lucas directions is pithily explained in Edwards:
"Ordinarily, the telling of a lie will merely affect the credit of the witness who tells it. A lie told by an accused may go further and, in limited circumstances, amount to conduct which is inconsistent with innocence, and amount therefore to an implied admission of guilt . . . When the telling of a lie by an accused amounts to an implied admission, the prosecution may rely upon it as independent evidence to ‘convert what would otherwise have been insufficient evidence of guilt’ or as corroborative evidence". (208, 209)
Here, although the contrary is arguable, it does not appear to me that the jury were being invited to consider the lies relied on by the Crown as probative, in the sense that they might constitute admissions of guilt. I agree with Williams J. that they should be regarded as having been left to the jury as relevant to the credit of the appellants, both of whom gave evidence at the trial.
3 A second point is that the judge’s summing-up is open to criticism as not having differentiated between those parts of the evidence which were relevant only to the case against the appellant Bonney and those parts which were relevant only to Millwood’s case. The case was in my opinion one in which, had the matter been raised before the trial judge, his Honour must have held that there was reasonable independent evidence upon which it could be concluded that each of the appellants acted in preconcert with the other in the commission of the offence charged: Tripodi (1961) 104 C.L.R. 1 at 7, Ahern (1988) 165 C.L.R. 87. The result of such a holding would have been that things done or said by one in furtherance of the common purpose would be admissible against the other (Ahern at 95). Insofar as the judge told the jury, as he did, that although the two appellants were being tried together "they are on trial separately and individually", that direction was perhaps too favourable to the appellants.
With respect to the sentences, the detailed facts of the case are such as to give rise to some doubt as to whether the appellants have been too severely punished; but I have in the end come to the same conclusion on that point as Williams J.
I agree with the orders his Honour proposes.
REASONS FOR JUDGMENT - WILLIAMS J
Judgment delivered 20 November 1998
After a trial in the District Court at Cairns each of the appellants was convicted of the offences of deprivation of liberty and causing grievous bodily harm. Each of the offences was committed on 27 February 1997 with respect to a person named Barnes. Each appellant was sentenced to 3 years imprisonment for the deprivation of liberty and 6 years imprisonment for the grievous bodily harm; the sentences were to be served concurrently. Each has appealed against the conviction, and each has applied for leave to appeal against sentence.
The original ground of appeal against conviction was the same in each case, and was expressed in the following terms:
“The convictions are unsafe and unsatisfactory and a miscarriage of justice has
been occasioned thereby, particularly having regard to:(a) The inconsistency between the verdicts of the jury in respect of the appellant and the verdict of the jury in respect of the co-accused Patricia Ann Rigby;
(b) The inconsistency between the evidence of the tenants Conlan, Millgate, Odell and Webster, and the evidence of the complainant Rodney James Barnes;
(c) The failure by the trial judge in the context of his summing up as a whole, to impress upon the jury that they could not convict the appellant unless the jury was satisfied beyond reasonable doubt that the complainant Rodney John Barnes was a witness of truth.”
At the outset of the hearing of the appeal respective counsel for the appellant abandoned reliance on that ground stated in the notice of appeal, and sought leave in the case of Bonney to rely on one additional ground, and in the case of Millwood on two additional grounds. Leave to amend was given.
In consequence the only ground relied on by the appellant Bonney in his appeal against conviction was as follows:
“That the trial judge did not clearly identify the evidence available in the case of each accused, and the circumstances and purposes for which it could be used.”
In the appeal by Millwood against conviction the grounds relied on became:
“That the learned judge did not clearly identify the evidence available in the case of each accused, and the circumstances and purposes for which it could be used.
That the learned trial judge erred in leaving the issue of material lies to the jury in circumstances where there was no material which was capable of amounting to material lies, and alternatively, the lies direction failed to differentiate between evidence relating to the appellant and the co-accused in circumstances where His Honour impermissibly combined the co-accused in the one direction.”
| 6 | Before dealing with the evidence and the grounds of appeal relied on it is desirable to make some brief comments on the abandoned grounds of appeal lest it be thought that there was any basis on which this court might conclude that the verdicts were unsafe and unsatisfactory. |
It was a case wherein it was necessary for the jury to be satisfied beyond reasonable doubt of the veracity of Barnes on critical issues. In the course of his summing up the learned trial judge made that point on a number of occasions. On at least 5 separate occasions when dealing with critical issues for the jury’s determination he used words to the following effect: “If you are satisfied beyond reasonable doubt that the complainant Mr Barnes is telling you the truth then ...”. Reading the summing up as a whole it is clear that the jury were clearly told that they could not convict either appellant unless they were satisfied beyond reasonable doubt that Barnes was a witness of truth on critical issues.
Further, a reading of the record clearly shows that there is no inconsistency between the convictions of each appellant and the acquittal of Rigby. The only evidence implicating Rigby was given by Barnes. He was only slightly acquainted with her prior to the incident and in the circumstances (which need not be enumerated here) the learned trial judge told the jury that they should consider his identification of Rigby with even greater care than usual. Further, Rigby gave evidence that she was not present at the place where the offences were committed. She called 2 witnesses to verify that story. Also as part of her case she called the woman Daniels as a witness; Daniels admitted to being in the vicinity of the unit at a material time. The learned trial judge clearly left it open for the jury to conclude that Barnes was honestly mistaken in identifying Rigby as being involved in the commission of the offences.
Given the summing up of the learned trial judge with respect to the case against Rigby, there was no inconsistency between the verdict of not guilty with respect to her and the conviction of each appellant. Further, in the circumstances, the rejection by the jury of the identification evidence of Barnes with respect to Rigby did not necessarily affect his credibility generally.
Finally, there were, not surprisingly, some inconsistencies between the evidence of other tenants in the block of units where the offences occurred (Conlan, Millgate, Odell and Webster) and the evidence of Barnes; but those inconsistencies were of the type which are regularly found when different people give an honest account to the best of their recollection of what was seen and heard. Those inconsistencies were not such as to make the guilty verdicts unsafe and unsatisfactory.
The offences occurred on 27 February 1997. The events of that day took place against a background of hostility between Barnes and each of the appellants. They had known each other since about 1995 and there had been a bitter dispute over property allegedly stolen from a yacht Barnes sold to Bonney. Barnes believed that Bonney was the thief and began to pursue the theft of that property. One of the things he did was to break into Bonney’s house and steal some property. He did that about a week prior to the date of the offences in question. It would appear that by 27 February the police had been notified of the conduct of Barnes in breaking and entering Bonney’s place of residence; Barnes had been served with an order requiring him to keep the peace about 2 days prior to the subject events.
The evidence of Barnes was that on the afternoon of 27 February 1997 he received messages to go to 15 Gemini Court (Bonney’s residence). He arrived there at about 6 p.m. According to his evidence once he was admitted to the house through the front door he was confronted by both appellants, the man Freckleton, and a woman he identified as Rigby. Millwood had an iron bar and rushed at Barnes; Millwood went to hit Barnes with the bar but Barnes blocked the blow with his arm. Barnes then went down on his knees taking punches and kicks to the face; blows were struck by each appellant. There followed what could be described as a mêlée during which Barnes was further assaulted and windows in the unit were broken. Then the assailants, in particular both appellants, tied Barnes up; his wrists were tied to his ankles and the rope then went around the neck. Barnes was placed on a couch and further assaulted by being struck with a piece of rubber hose; threats to kill were made. The assailants were demanding to know where property belonging to Bonney was and Barnes gave a false address.
| 13 | The assaults came to an end with the assailants indicating that they would ring the police and say that Barnes had entered the house illegally, that they (the assailants) had caught him and tied him up. The others left leaving Millwood alone with Barnes; Millwood contacted the police. |
Subsequently Barnes was taken to the Cairns Base Hospital where he was treated for a broken arm and lacerations which required suturing. He was also suffering from bruising to numerous parts of his body.
Millwood had some minor cuts to his hands.
Police interviewed each of the appellants (and others) with respect to the happenings in the unit at 15 Gemini Court. Millwood maintained to Detective Sergeant Lehmann that he had returned to the unit to find Barnes there (and signs the unit had been broken into) and that Barnes had charged at him with an iron bar. In brief, Millwood told Lehmann that a fight had ensued in which he had got the upper hand. Millwood was adamant in his statement to Lehmann that he (Millwood) was alone in the unit at all material times with Barnes.
When Lehmann spoke to Bonney he asked whether he was at his unit at all during the day; Bonney replied: “No way. I was staying away because of the threats from Barnes”.
Evidence was led at the trial from other residents who lived in the vicinity of the unit in question. There was a body of evidence placing Bonney in or about his unit at about the time of the assault on Barnes.
When Millwood gave evidence at the trial he claimed that on arriving at Bonney’s unit he found the door broken. He entered and was immediately attacked by Barnes who was wielding an iron bar. Fighting and wrestling ensued for some time. Millwood secured possession of the iron bar and struck Barnes with it on the arms. There was then further fighting and wrestling, including more hits on Barnes with the iron bar. When he subdued Barnes, Millwood informed him that he was going to ring the police. There was further fighting (punching) - primarily an attack by Barnes on Millwood. Barnes got the bar back so Millwood grabbed him by the throat and pushed him back into the corner of the room. Barnes fell to the floor and Millwood regained possession of the bar. At about that point in time, according to Millwood’s evidence, Bonney arrived. According to Millwood’s evidence he told Bonney he was going to ring the police and that he (Bonney) should “get out of here”. There was further fighting between Millwood and Barnes which culminated in Millwood tying Barnes up with a cord. Bonney was in the vicinity for some time though it is not clear from Millwood’s evidence where he was during the last part of the fight and the tieing up of Barnes. Millwood rang the police who arrived shortly thereafter.
It can be seen that the initial part of that evidence accorded with Millwood’s statement to Lehmann, but it also accommodated the evidence of the other witnesses who placed Bonney in or near the unit at a material time. To that extent there was a significant inconsistency between what Millwood told Lehmann and his evidence at the trial.
Bonney gave evidence at the trial that as a consequence of something he was told he returned to his unit some time after 5.30 p.m. He “stood listening near the doorway to what was happening inside the unit”; he remained there for about 30 seconds “just trying to assess what was going on inside”. He then left. He said he could hear arguing and Barnes making threats. He heard Millwood say something about ringing the police. Some unspecified time later he returned again to the unit. He looked in the door on that occasion and “could see Barnes tied up and blood all over the floor, blood everywhere”. Millwood told him the police were on the way and that he (Bonney) should “get out of here and I’ll give you a call later”. He then left.
That evidence given by Bonney at the trial was contrary to his statement to Lehmann that he had not visited his unit on that day.
After dealing at some length with the legal matters relevant to the jury’s deliberations, and the evidence given by the various witnesses - all of which has not been in any way challenged - the learned trial judge is recorded as making the following observation:
“We also heard evidence of what was said by Bonney to police officers and Millwood, what was said to police officers. Indeed, Millwood’s interview is taped which you will have as an exhibit, exhibit 32.
What the Crown case is, is that accepts that the accounts given certainly by Bonney and indeed by Millwood, accord with the observations of the witnesses to whom I have just referred. What is submitted to you is that you could take the view in this case that the accused Bonney and Millwood put their heads together to concoct an account which would allow for the observations of those witnesses. Well, that is a submission that is made.”
Undoubtedly the learned trial judge was there referring to a submission made by the prosecutor in his address. The prosecution had, understandably, put to the jury that the story told by each appellant in evidence at the trial varied from the statements each had earlier given to investigating police in order to accommodate the evidence of independent witnesses who lived in the vicinity of the unit where the incident occurred. That was a matter which it was proper for the jury to consider, and if they accepted that submission then it would undoubtedly have affected their assessment of the credibility of each appellant.
There is nothing objectionable in that passage from the summing up.
Immediately following that passage the learned trial judge went on as follows:
“On behalf of the accused, it is said that the explanation is simpler and that in fact the account given by them which accords with the observations of the witness, is the truth and therefore there is no question of coincidence between those two accounts. It is simply that they reflect the actual position of what did in fact occur. Which of those approaches you adopt, as I say, is a matter for you.”
Again that passage is unobjectionable. The learned trial judge is merely reminding the jury of the counter argument addressed to them by counsel on behalf of the appellants. As he said, it was for the jury to decide which, if any, of the submissions it was prepared to accept and act upon.
Immediately following those two passages the learned trial judge dealt with a further submission made by the Crown prosecutor with respect to “lies” told by each appellant. It is this passage in the summing up which is central to all of the arguments addressed to this court on behalf of the appellants. The full passage in question is recorded as follows:
“The Crown submit to you that a factor to be taken into account in assessing that evidence is the fact that Bonney clearly told a lie to a police officer when he was interviewed by him and that in the interview with Millwood, when you listen to it, you can discern a number of differences of some substance between what he said to the police officer in that interview and to the evidence which he has given in this Court.
Well ladies and gentlemen, as far as that is concerned, lies, to be evidence against an individual must be established as having a number of characteristics by the Crown on the normal basis of the burden of truth, the first of which is that it must clearly be a lie and not just a mistake or something of that sort.
Well the Crown submit to you that in respect of those two individuals, what they said were clearly lies and in fact Mr Bonney, when it was put to him, accepted that he did tell a lie when he was asked, “Did you go to your place at all today?” and he replied, “No way. I was staying away because of the threats from Barnes.”
You will have to assess the things that were said by Millwood to police officers in comparison with what he said to you in the Court and I do not intend to go through each of them. Counsel for the Crown has touched upon some.
The second aspect which must be established is that it was about a material matter. Well clearly whether or not Bonney was at the unit on the day in question would be material and the Crown submit that the actual account of what occurred in the course of the incident, according to Millwood, would also be material.
Thirdly, it must be established that the lie is only a lie which a guilty person would tell having consciousness of guilt and with an intent to avoid the consequences of such guilt and in this case, it is submitted by the Crown that you could take the view that that was the case and they would also submit that you would take the view that those lies in the initial stages, were an indication that subsequent events have led them to concoct the story which is the Crown’s submission.”
It is necessary to look at various parts of that direction in some more detail. A submission made by counsel for each appellant, principally by counsel for Millwood, is that the learned trial judge did not identify the lie or lies. So far as Bonney was concerned the lie was clearly identified, and in fact admitted by him in the course of his evidence. Further, the clear inference from reading the passage in question is that one of Millwood’s lies, perhaps the most important, related to the question whether Bonney was present. That seems clear from the first and second last paragraphs in the most recent quote.
The learned trial judge did go further in the case of Millwood and refer to the differences between his recorded interview with the police and his evidence in court. He reminded the jury that the Crown prosecutor had touched on some of those differences in his address. It would have been preferable if the learned trial judge had specified some of those differences for the assistance of the jury, but undoubtedly the evidence in question would have been fresh in the mind and the parameters for the jury’s consideration of Millwood’s lies were clearly set by the direction.
The learned trial judge then clearly told the jury that before they could conclude that a lie had been told such as would affect the credit of the witness it had to be clearly proved; a mistake was not sufficient. So far as Bonney was concerned the critical lie, as already noted, was admitted. So far as Millwood was concerned the inconsistencies between his account given to the police and his evidence at trial were obvious. It was for the jury to determine the explanation for the inconsistencies. Particularly with respect to Bonney’s involvement in the incident they could well conclude, having regard to the whole of the evidence, that Millwood told a lie when he said that he alone was involved in the incident with Barnes.
The learned trial judge then told the jury that they should consider whether the lie was “about a material matter”. It is patently obvious, in the light of all the evidence, that the question whether Bonney was a participant in the assault on Barnes was a critical and material matter. That question involved, as a first step, determining whether Bonney was present at the unit at a material time. That appears to have been adequately dealt with in the second last paragraph in the most recently quoted passage.
Finally, in the last paragraph, the learned trial judge referred to “consciousness of guilt” as an element which needed to be established. Probably the learned trial judge had the decision of the High Court in Edwards v The Queen (1993) 178 CLR 193 in mind. That case was primarily concerned with the situation where the telling of a lie by the accused was relied upon, not merely to strengthen the case for the prosecution, but as corroboration of other evidence establishing or pointing to the guilt of the accused. As was stressed in the reasoning in Edwards where that is the case the jury should be specifically instructed in accordance with that decision.
But where the issue of lies goes merely to the accused’s credit it is not strictly necessary to direct in accordance with Edwards. However, for good reason, judges often refer to the elements of the Edwards direction even when the lies are only relevant to credit. That is often done with a view to negating any tendency on the part of the jury to infer from the fact that a lie was told that the accused must therefore be guilty.
The last few lines in the passage most recently quoted from the summing up makes it clear that in this case the learned trial judge was effectively telling the jury that the lies were only relevant to the credit of each appellant. There was at that point a reference back to the very first passage from the summing up cited above in which there was reference to the Crown’s submission that the appellants had “put their heads together to concoct an account”; on the later occasion the learned trial judge returned to that theme saying that the jury could well take the view that the lies told by each appellant “in the initial stages, were an indication that subsequent events have led them to concoct the story which is the Crown’s submission”.
On that basis the lies here only went to credit; the learned trial judge did not fall into error in failing to give a direction which strictly complied with Edwards.
Counsel for each appellant (but in particular counsel for Bonney) submitted that the learned trial judge erred in not clearly instructing the jury that out of court statements made by one accused could not be used against the other. It was said that, absent such a direction, the out of court statement by one could be used to establish a lie told by the other. It is difficult to see how that could be so, at least in relation to the critical issue whether or not Bonney was present at the time of the assault. Bonney’s lie to the police is proved by his evidence in court. Millwood’s lie to the police is proved, inter alia, by Bonney’s evidence in court (which is clearly evidence the jury could use when considering the case against Millwood).
Once the jury was satisfied that each appellant had told a material lie about the same issue (Bonney’s presence) they were entitled in each case to draw an inference that there had been some collaboration about that conduct.
Whilst the learned trial judge could well have instructed the jury more precisely on what use they could make of out of court statements, his failure to do so did not vitiate the trial. It would have been preferable if the summing up in this case had been structured so that there was a clearer differentiation between the cases against each accused, but in fact there was no error which occasioned any miscarriage of justice.
Each appeal against conviction should be dismissed.
I turn now to the applications for leave to appeal against sentence.
Bonney was aged 36 at the time of the offence, having been born on 25 January 1961. He had a very minor previous criminal history; a conviction for a minor firearm offence and a conviction for a minor drug offence.
Millwood was aged 34 at the time of the offence having been born on 16 January 1963. He had a criminal history which could be described as minor, though it did include a conviction for assault occasioning bodily harm in the Magistrates Court in August 1989, and a conviction for a serious assault on a police officer in August 1991.
The learned sentencing judge regarded Bonney as the organiser of the attack though Millwood inflicted the greater violence. This was a planned attack by a number of persons in retribution for a perceived wrong. It involved a prolonged attack which continued after Barnes had been tied up. It was aggravated by the fact that Millwood had used an iron bar.
There was clearly a degree of callousness in the attack, and neither appellant showed any remorse. Each maintained throughout the trial that Barnes had been the instigator of the events in question.
The injuries to Barnes were serious and the nature of the attack was such that the consequences could have been much worse; the end result is that Barnes will suffer no long term physical harm from the injuries received.
In the course of his sentencing remarks the learned sentencing judge referred to the unreported decision of the Court of Appeal in R v Adams; Ex parte Attorney-General C.A. No. 343 of 1997, Judgment 21 April 1998. Other decisions of this court were referred to in the course of argument on the hearing of the application. None of those authorities is a direct authority on the issue of sentence here. In the end result it was appropriate for the learned sentencing judge to impose the same sentence on each appellant; Bonney was the organiser though he was absent for a time during the assault, and Millwood was the main assailant.
In all the circumstances a sentence of 6 years imprisonment for grievous bodily harm is towards the upper end of the range but it cannot be said to be manifestly excessive.
Each appeal against conviction should be dismissed, and each application for leave to appeal against sentence should be refused.
0
1
0