R v Bradley

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 327 of 1999

THE QUEEN
	v.
RICHARD ALEXANDER BRADLEY

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JUDGES:	ORMISTON and BUCHANAN, JJ.A. and O’BRYAN, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 October 2001
DATE OF JUDGMENT:	28 November 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 212

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CRIMINAL LAW – Murder – Directions – Evidence – Lies – Removal of own murder weapon to friend’s place on day of killing – No contention based on consciousness of guilt – Whether direction on that subject required – Whether complicity direction required where allegation only that accused was perpetrator – Whether direction required as to alternative liability with co-accused.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C.	Ms K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr C.B. Boyce	Pro Bono

ORMISTON, J.A.:

This application for leave to appeal against the applicant’s conviction for murder raised various issues contained in five grounds of appeal, four of which, as has become far too frequent on these applications, were neither the subject of complaint at the trial nor were contained in the original notice of application, those new grounds being added only within a week of the hearing of the application. The applicant, together with his co-accused, Eileen Faye Cox, was found guilty of the murder of Mrs Cox’s husband on or about 27 June 1998 and was sentenced, as was Mrs Cox, to be imprisoned for a term of 17 years, with a minimum of 13 years to be served before becoming eligible for parole.

The evidence in support of the prosecution case was entirely circumstantial. Indeed, there was no obvious motive for the murder, other than a suggestion that it was done for money. Arguably the most significant element in the Crown case was the fact that it was the applicant’s gun, kept in his bedroom drawer, which was used to shoot the deceased. There was also evidence that he sought to mislead the police when first questioned by saying at that time that he did not know how the deceased had been killed and further that he had sought to dispose of the murder weapon quickly by sending it to Bendigo. The Crown case made no direct reliance on lies or any other allegation of consciousness of guilt but it is now said that appropriate directions should have been given on these subjects in any event. The grounds presently relied upon take this form:

“1.The learned trial judge erred in failing to adequately direct the jury that there were bases upon which the co-accused Cox could have been found guilty and the applicant not guilty of murder. (See, in particular, T.835-837.)
2.The learned trial judge erred by failing to adequately direct the jury as to the use that they could make of the alleged lies told by the applicant.
3.The learned trial judge erred by failing to adequately direct the jury on the issue of consciousness of guilt insofar as it related to the applicant’s removal of the murder weapon to Bendigo.
4.The conviction is unsafe and unsatisfactory.
5.The learned trial judge erred by failing to adequately direct the jury as to the relationship of criminal complicity that was alleged to have existed between the applicant and the co-accused Cox, in particular, by telling the jury that the applicant and Cox were alleged to have acted ‘in concert’.”

The factual basis for the applicant’s conviction can be seen in the evidence given at the trial which, of course, was a trial both of the applicant and of Mrs Cox. The judge gave appropriate instructions to the jury both during the trial and in his charge directing them to distinguish between the trial of the two accused and identifying the principal evidentiary matters relied on in each case. There were naturally matters which were common to the proof of the charge against each accused, but in some respects, especially so far as concerned the relationship of the deceased and his wife, the co-accused, there were no specific directions given, though there has been no complaint on that score. An understanding of the relationship between the parties was important insofar as the case against the applicant asserted by way of inference that he killed the deceased at Mrs Cox’s request and was paid something for his trouble. So far as the case against Mrs Cox was concerned, some connection with the applicant was important insofar as it was clear that she did not fire the shot nor own the gun used, so that the Crown case depended on proving circumstantially that she engaged somebody, more specifically the applicant, to carry out her husband’s execution for her. In each case there was no direct evidence and no admissions of any consequence. The case against the applicant included a written statement made a week or so after the murder and a later record of interview conducted just over a fortnight after that. There was also available to the jury the evidence given by the applicant himself at the trial.

The applicant had known his co-accused and her husband, the deceased David Allen Cox, for some time before the events surrounding Mr Cox’s death. Apparently they had met through the applicant’s present wife, Lana McMahon, but the applicant had met the deceased only briefly on a few occasions and had only once gone to his house at Wyndham Vale. The applicant also lived in Wyndham Vale, only about 5 or 6 minutes’ walk from the Coxes. There was a good deal of evidence about the relationship between Mrs Cox and her husband, largely directed to establishing a motive for her participation in the murder. It seems that at the relevant time the relationship between Mr and Mrs Cox was unhappy and that there were many disputes, although no history of violence. There were two children of the marriage, one of whom, Terry Cox, aged 19, still lived at home. Although it is not clear whether it was directly relevant to the applicant’s trial, there was evidence that Mrs Cox was having an extramarital affair with another man, from which it might have been inferred that there was no such relationship with the applicant, nor was there any suggestion along those lines at the trial.

At the relevant time the applicant was unemployed, having broken a finger some two months earlier. On the night in question the deceased returned home from work but discovered that his wife was going out for the evening with Ms McMahon. A lounge suite had been removed from the living room with the assistance of his son Terry that afternoon, so the deceased placed some cushions and pillows against the sitting room wall in order to watch television. Terry Cox left at about 5.45 p.m. and the older son Allen Cox rang at about 6 p.m. After that the only visitor whom the deceased received, according to the prosecution case, was the applicant himself.

The applicant himself agreed that he had visited the deceased shortly before 8 p.m. that night on his way home from buying some lemonade at a local shop. It is not clear why he chose to visit the deceased for only the second time on that night. The deceased was in a dressing gown, a pair of pants and Ugg boots and was drinking beer seated on the cushions in the living room. He was watching the boxing and waiting for the football to start. He offered the deceased a drink, which he refused but he stayed for a while during which time he visited the toilet and the bathroom. When he returned to the sitting room he told the deceased that he might return to watch the football if a friend did not visit him. He left the deceased’s house between 8.15 and 8.30 p.m., by which time the football still had not started, and walked home. He said that he did not return to the deceased’s house that night.

There was no evidence that any other person visited the deceased later that night either.

Ms McMahon and the co-accused arrived at the applicant’s house at about 10.30 p.m. They found the applicant there looking as if he had been drinking for some time. Ms McMahon commented on his condition to the extent that the applicant was sufficiently upset to leave the house with the stated intention of walking to the deceased’s house. Ms McMahon said that he left at about 10.45 p.m. The applicant’s version was that he did not go as far as the end of the street before he turned around and went back home. In evidence he estimated that he was gone for no more than five minutes. However there was other evidence from an acquaintance called Bates, who said that he and one Faccin had spent the evening at a hotel and arrived at the house at about 1.30 the following morning. They spoke with the co-accused and Ms McMahon and Bates noticed some five minutes later that the applicant came into the house through the front door. The co-accused Mrs Cox spent the night at the applicant’s house. There was no evidence to suggest that the applicant left the house at any other time.

During the night two shots were heard by neighbours at different times. First two witnesses said they heard a gunshot some distance away at about 10 p.m. while they were watching a film. Then another neighbour, Tracey Gibbs, said that she heard a gunshot at about 12.50 a.m. on Saturday, 27 June 1998. About an hour and a half later the deceased’s son Terry and a friend arrived back at his parents’ house after spending about four hours in a hotel in Werribee. They noticed that the front door was partly open, whereas usually it would be locked. Terry Cox looked outside but saw no-one in the street. He closed the door and went into his own bedroom with his friend. Neither went into the bathroom before they retired to bed.

Then next morning at about 7.30 a.m., when Terry Cox arose and went into the bathroom, he saw his father lying over the bath with his head submerged in water. There was blood in the water and the lounge room bar cabinet had been disturbed and the contents strewn on the floor. He said he waited for some 15 minutes before he telephoned his mother at the applicant’s house. Later Ms McMahon drove the co-accused around to her home. Bates said that when the applicant was told about the death he replied, “Bullshit”. An ambulance was then called and attended the deceased’s house. A witness described the deceased’s clothing in terms which seemed identical to the applicant’s description of him when, on his version, he had visited him the night before.

The police were then called and began an investigation. Terry Cox pointed out to them that there was a brown pillow on the kitchen table which had a hole in it. Furthermore, although it might have appeared at first that the deceased had been killed by either strangulation or drowning, forensic inquiries revealed quickly that the deceased had died of a single wound to the top of his head consistent with a gunshot injury. Ultimately it was discovered that the deceased had been shot with a .22 calibre firearm. There were no gunpowder burns around the wound, leading to the conclusion that it was a contact wound from a gun placed against the back of the deceased’s skull. The post-mortem examination also confirmed that, although he had suffered several injuries including a large black eye, bruising over his left rib cage and two ligatures around his neck consistent with asphyxia, the actual cause of death was the single, low velocity gunshot wound to the head which had been fired whilst he was alive. A bullet recovered from the deceased’s brain was similar to a bullet also fired from a .22 calibre gun located inside the cushion found on the kitchen table.

The significance of this evidence was that the applicant was the owner, as he admitted, of a .22 sawn-off calibre rifle as well as a Steiger 9 mm. gun. Moreover, as Ms McMahon testified, on the afternoon of the death she was asked by the applicant to take those two guns to a house in Golden Square occupied by one McCallum. The guns were wrapped in a towel and placed in a plastic bag, and they were accompanied by a quantity of ammunition as well as three fired .22 calibre cartridges and one fired .22 calibre bullet. Ms McMahon asked McCallum to hide them for her

which he did by putting them in a suitcase. Later the applicant asked McCallum where they were and was told that they were in the suitcase.

When the police took their first statement from the applicant on 28 June 1998, he denied having any involvement in the death of the deceased and made no mention of his ownership of the gun. Further examinations revealed that there were no signs of a forced entry to the deceased’s home but the contents of the lounge room cabinet had been strewn on the floor.

The following Saturday the applicant had repair work performed on his motor vehicle and paid the repairer $300 for his work which was paid in the form of three one hundred dollar notes. It was alleged that these notes came from withdrawals totalling $3,800 made on 25 and 26 June by the co-accused from an account in the name of herself and her husband at the Advantage Credit Union. In particular the sum of $2,000 was paid out in one hundred dollar notes to her.

As a result of further investigations, search warrants were executed on 16 July 1998 at several places including the house at Golden Square. There the police found the locked suitcase containing the automatic pistol, the sawn-off rifle and the quantity of new and used ammunition. Forensic examination led to the conclusion that the three fired .22 calibre cartridges and the three .22 calibre bullets were all fired by the applicant’s sawn-off .22 rifle.

The applicant admitted ownership of the guns and that they had been kept by him in a bedside drawer. After hearing that the deceased had been killed, he had checked his own guns which he believed had been fired not long before because they were still warm. He had asked his future wife to take them to Bendigo as he did not want the police to locate unregistered guns in his house. In his original statement to the police on 28 June he said that he did not know how the deceased had been killed, but at the trial he admitted that he had heard the deceased had been shot and said that he had no explanation for that lie.

Also put in evidence at the trial was the written statement made two days later and evidence of a record of interview given some weeks after that. The statement gave some detail of his movements, largely consistent with the version he gave in evidence but in which he purported to know nothing of the circumstances surrounding the death of the deceased. In his record of interview the applicant was a little more forthcoming, but the answers given were still largely consistent with the version given in evidence.

The applicant gave evidence on his own behalf at the trial and also called another witness to show that he received a compensation payment a little over six months’ earlier. The applicant’s version at the trial was again that he denied any involvement in the death of the deceased. He admitted ownership of the two guns which had been kept in his bedside drawer. He also admitted visiting the deceased’s house on his way home from buying lemonade at about 7.30 p.m. on the Friday night. The deceased invited him to watch the football on the television but he had stayed a little more than a quarter of an hour before leaving. After arriving home Ms McMahon and Mrs Cox returned to his house, accusing him of being drunk. He went outside, intending to go to the deceased’s house to drink, but it was too cold and so had returned in under 10 minutes. He agreed that the witness Bates and Ms Faccin came to the house later that night but he said that he had been sitting in the lounge room at the time. He said that the following evening he had checked his guns after learning how the deceased had been killed. He found that the .22 rifle was still warm in his drawer and believed that it had been fired. He therefore asked Ms McMahon to take both guns to Bendigo as he did not want the police to locate unregistered guns in his house. In cross-examination he denied that he had given Ms McMahon the spent cartridges also for carriage to Bendigo and he did not know how they came to be found with the guns. He said, however, that he had given Ms McMahon a box containing .22 ammunition. He agreed that he had paid the car repairer three one hundred dollar notes but said that that had come as part of an

employment termination payment. He denied any connection with the death and denied any agreement with Mrs Cox relating to the killing of her husband.

The trial, as I have said, was a joint trial, the case made against the applicant being that he was the perpetrator of the murderous gunshot wound and his co-accused Mrs Cox being complicit by counselling and procuring that killing. The basic case against the applicant made in the prosecution opening was essentially the same as that made in the closing address, although, primarily by reason of the applicant’s having given sworn evidence and having been cross-examined, there were rather more details added to the case: for example, the lie as to his knowledge as to how the deceased died. A little time was taken in that address in responding to suggestions that one or both of the deceased’s sons was responsible for his death and in fact almost the whole of the address of counsel then appearing for the applicant was devoted to that issue, rather than in rebutting the Crown case. The case made against Mrs Cox was not dissimilar although the circumstantial case made against her depended rather more on a number of lies as to particular details. Again her defence case deflected attention onto the activities of the two sons.

It is convenient here to set out the basic facts relied upon by the prosecution against the applicant for, although it was properly characterised as a circumstantial case, the particular circumstances implicating the applicant were relatively few in number. Of course there was evidence of a general kind relating to the relationships between both the accused and the deceased, as well as their friends and relatives, and of their different activities on the evening and night in question. The relationship evidence was of somewhat more significance in the case against Mrs Cox, but indirectly it was important to the Crown case against the applicant, for otherwise there would be neither motive nor reason for the applicant to seek to kill the deceased. Essentially the principal elements in the circumstantial case against the applicant were summed up by the trial judge in the course of describing what was necessary to sustain such a case and I shall refer to those matters in the order in which his Honour dealt with them, adding some few details also relied upon by counsel. The case relied on, in the first place, the fact that the weapon used in the killing belonged to the applicant, apparently placed in his bedroom drawer only a few days before the killing took place. Secondly, the case relied upon the applicant’s request to take the gun to Bendigo and have it effectively hidden, together with the spent cartridges (none of which was found in the deceased’s home), all of which not surprisingly the Crown described as “extraordinary”, especially as he said that he feared only that he might be found guilty of being in possession of an unregistered firearm. Thirdly, it was pointed out that the applicant had, on his own admission, visited the deceased’s home on the night he met his death, being only the second occasion on which he had visited that house and choosing to visit on a night when he knew that his then partner Ms McMahon was going out with the deceased’s wife for the evening. As I would understand it, the prosecution also relied on the fact that the deceased’s house was easily accessible from the applicant’s, being about only five minutes’ walk away. Fourthly, the Crown pointed to the applicant’s denial that he was even aware of the cause of death of the deceased. The final two matters were that the applicant had paid the three hundred dollar car repair debt in three one hundred dollar notes just after the shooting and that Ty Bates had said that the applicant was not at home when he arrived there at 1.30 in the morning, the applicant coming in the door a few minutes later. It can be seen that, in those terms, it was not an elaborate case, although the background had to be spelt out in a good deal of detail before any inferences might fairly be drawn. Moreover, counsel then appearing for the applicant denied strenuously in his address that the relevant inferences could safely be drawn.

The only thing necessary to add about the way in which the prosecution case was presented is to refer to the way in which the issues referred to in grounds 2 and 3 were put to the jury. As to the applicant’s statement that he did not know how the deceased died, prosecution counsel drew attention to the fact that the applicant had no explanation as to why he had said that in his statement. So far as I can gather, however, whatever implication he sought to make, he never described the statement directly as a lie, nor indeed did he seek to draw attention to the matter thereafter. More importantly, so it may seem, counsel for the prosecution did rely on what the applicant did with the sawn-off .22 rifle. He pointed to how the applicant had said that he discovered it still warm, that it was wrapped in a towel and that he had become suspicious of Mrs Cox who had been present overnight. Then prosecution counsel had made this submission to the jury:

“Why, members of the jury, would he take the firearm? He said he got it out of the drawer and had a sniff and it seemed as though it had been fired. So he thinks to himself, ‘This could be the murder weapon’. What does he do? He says to you that, ‘I was frightened the police would be coming around and finding an unregistered firearm in my possession, that’s why I despatched [it] to Bendigo’.
He didn’t think to himself, ‘Well, okay, it is an unregistered firearm, what do I do first of all? Why don’t I hide the gun in the backyard, dig a hole’. He wanted to get the gun as far away from his house as possible, members of the jury, because he knew it was the murder weapon, because he committed the murder. I mean, what would he get for possession of an unregistered firearm? A fine of maybe $500, I don’t know what the going rate is, but it is not much. But he thought it was the murder weapon, he says, or it could have been, so he moved it as far away from his house as he possibly could with his wife to the relative’s house in Bendigo. It is just an absurd account really when you think about it. You don’t leave your common sense at home when you come into this court, to the jury box. It is an insult to your intelligence really. He was doing it because he committed the murder and the weapon he had to get out of the house as quickly as possible. It was despatched to Bendigo. He knew the cause of death because he caused the death.” (Emphases added.)

For the present it is unnecessary to examine the terms of the judge’s charge to the jury. Where practicable it carefully distinguished between the cases made against each of the accused and dealt with each of the legal issues raised. There was a detailed examination of the whole of the evidence and of the contentions put by counsel on each side. The presently relevant parts of the charge will be set out below. So far as the arguments in this Court are concerned, although counsel on each side chose to begin with ground 3, I prefer to commence with the arguments raised in relation to ground 2.

Ground 2 – Failure to direct adequately as to use to be made of lies.

Considerable weight was placed on the contention that the judge failed to give proper directions as to the use of the lie which the applicant admitted uttering as to his lack of knowledge of the means of the deceased’s death. As I would understand it, counsel conceded that directions were given generally as to the use of lies and their unavailability to sustain a circumstantial case, but it was said that the learned judge was obliged to go further and to state explicitly that the jury could only use those lies on the issue of credibility.

One might wonder whether any directions as to lies were really required so far as the applicant’s case was concerned. Of course the applicant had conceded that he had told a lie on the subject in his first statement. Nevertheless, as I read the prosecutor’s address, he had not referred to lies as such in making the case against the applicant and had made only a brief reference to the accused’s concession in evidence. Having looked more generally at the whole of the charge, I am inclined to the conclusion that the directions as to lies were primarily given because a considerably greater emphasis was placed on lies told by the co-accused Mrs Cox, so that consequently the judge felt obliged to deal with the issue. Apart from the question of credibility, he dealt very fairly, in the sense that the direction was highly favourable to each of the accused, with the use to which lies might be made in determining the case. Here, no doubt provoked by the manner in which the lies had been used in the case against the co-accused, his Honour clearly stated how they should not be used, as follows:

“There are occasions upon which an individual may lie in such a fashion that the lie constitutes in effect an unequivocal admission of guilt. … There are occasions where a lie can be so powerful and so important that to tell it constitutes effectively a confession.
Neither separately considered nor in combination can any of the asserted lies in this matter satisfy that standard. You cannot treat them in that way. But that does not mean that you cannot take such lies, or if you accept that they are such deliberate untruths, into consideration when you are looking at the totality of circumstances ... They can constitute part of the total evidentiary framework to which you may have regard, so that when you look at the whole of the circumstances they constitute part of a matrix upon which you can arrive at a decision.”

Although the judge had introduced this discussion by referring also to the lie included in the applicant’s statement, the discussion which followed was directed to the way in which the case had been made against the co-accused. After that he followed with what might be described as a conventional warning to the jury about the alternative hypotheses which might motivate a lie, as follows:
“People may make statements which are untrue in many situations and for a wide variety of motives that can be quite unconnected with any sense of criminal guilt [. It] may well be that an individual is apprehensive, fearful, concerned to protect some other person, has an inaccurate recollection, or may possess a sense of moral as opposed to criminal responsibility. It has been known on occasions for persons to have a sense of guilt about something that is quite unconnected with the matter before the Court, people become frightened of being involved in incidents, they may be apprehensive about what may happen to them if they admit any knowledge whatever about a particular occurrence or the existence of a particular relationship. On occasions and from a very early age people often resort to a simple denial of any knowledge whatever about the matter under investigation.”

In my opinion these directions more than adequately dealt with the effects of the lie, as asserted as part of the case against the applicant, certainly in the context of the manner in which it was raised and dealt with at the trial. Counsel, however, relied on three propositions taken from R. v. Renzella[1], in particular propositions 8, 11 and 12.[2] So it was asserted that, unless the jury are told explicitly that the lies can only be used on the question of credit, there should be a proper consciousness of guilt direction in relation to lies if they form part of a circumstantial case against the accused. There is not much doubt in the present case that little more was being read into this particular lie than that the applicant should not be believed as to his version of events. Nevertheless that was not directly stated either by prosecuting counsel nor by the learned judge in the course of his summing up. Greater significance may have been placed on the co-accused’s lies so far as the proof against her was concerned, but that is of no presently relevant significance. For myself, I see no reason why a full direction of the kind required by Edwards v. The Queen[3] and Zoneff v. The Queen[4] was required to be given. Indeed, it may have done more harm than good to the applicant’s case for it would have invested this particular casual lie with a significance that it did not otherwise deserve. The need for such directions ought to be dependent on whether the prosecution case seeks to characterise the lie as amounting to an implied admission of guilt or otherwise of implication in a significant way in the crime. Here remarkably little was said about the lie in the course of the addresses. The prosecutor briefly mentioned it but only for the purpose of contrasting it with what he said was the true version of another witness. Counsel for the applicant likewise did not linger over it. The highest that one could perceive the prosecution submission is that, perhaps by implication, the applicant’s stated lack of knowledge was to be connected with his disposal of the gun itself.
[1][1997] 2 V.R. 88.
[2]At 91-92.
[3](1993) 178 C.L.R. 193.
[4](2000) 200 C.L.R. 234.

Surprisingly, so it would seem to me, the learned judge seemed to accept that the prosecution was using the lie as part of its circumstantial case. When dealing with lies generally he described as lies both the false versions given by the co-accused, upon which significant weight was placed, and also the applicant’s admitted lie in his statement. Thereafter he immediately gave the direction which I have set out above which assumed that the prosecution was using this lie, as well as those of Mrs Cox, as part of a circumstantial case. Later in dealing with the elements of the circumstantial case against the applicant he referred again briefly to the lie, but said, as seems to have been the case, that the fact that the deceased was shot was common knowledge by the time the applicant made his statement.

If this be the way that the learned judge perceived the arguments, and directly dealt with them in the course of his charge, the question arises whether some further directions were required to be given. On that basis he certainly would have found it difficult to describe them merely as going to the question of who was telling the truth. Further it seems unlikely that he would have given a direction that the lie could be used only on the question of credibility. So it might be asked why the judge did not give an Edwards and Zoneff direction[5] and presumably it was to make that point that counsel for the applicant sought to draw attention to the propositions in Renzella previously mentioned. They were written, with great respect, some years ago in relation to a somewhat different case, but since that time a good deal has been said and written about the requirements for directing juries in cases involving lies or other evidence of so-called consciousness of guilt. As was said in Zoneff[6] the requirements of Edwards cannot be confined by rigid formulae: see R. v. Dupas.[7] As Winneke, P. observed in that case[8], not every circumstantial case which depends in part on lies or consciousness of guilt will require an Edwards-Zoneff direction. Rather one must see whether the lie or other conduct is being used by the prosecution (or may be seen by the jury) to establish in itself an implied admission of guilt on the part of the accused.
[5]The terms of the conventional Edwards direction were modified very slightly in Zoneff by inserting the words “the commission of” before the words “the offence” in the requirement that the conduct must show that the accused was implicated in the offence: Edwards at 211, as qualified by Zoneff at 244 para.[16].
[6]At 244.
[7][2001] VSCA 109 at para.[26].
[8]See the authorities and discussion in para.[26].

In the present case it is very difficult, if not impossible, to conclude that the prosecution ever sought to rely on this particular lie as amounting to an implied admission that the applicant was guilty of the crime charged or that he was otherwise implicated in the commission of it. At its highest it was a small item in a circumstantial case; if not, then it merely reflected on the applicant’s credibility. I can see no error in the judge’s directions on this issue and the ground must therefore fail.

Ground 3 – Failure to direct as to consciousness of guilt in relation to removal of murder weapon.

The evidence here relied upon, the sending by the applicant of the murder weapon and the spent cartridges to Bendigo, clearly played a much greater role in the prosecution case. The question raised was whether that evidence was relied upon as evidencing a consciousness of guilt of the crime charged and whether that required an Edwards-Zoneff warning. Counsel for the applicant conceded that the expression “consciousness of guilt” had not been employed by prosecution counsel, nor indeed by the judge in his charge, but that the way in which these facts were put to the jury could only lead to the conclusion that counsel was suggesting that they were consistent only with the acts of a person who believed and knew he was guilty. In other words he had argued that they were the acts of a person who was conscious of his own guilt in killing the deceased.

There was some dispute as to how the events in question had been used by counsel for the prosecution. It was asserted by the respondent that these events were all used as part of a circumstantial case and that no suggestion had been made that any of the acts evinced a guilty mind on the part of the applicant. With that I cannot agree, notwithstanding that the case was clearly a circumstantial case based on a number of facts, as set out above. The critical passage in the prosecution address, the context of which may be seen above[9], was that counsel asserted that the applicant “wanted to get the gun as far away from his house as possible … because he knew it was the murder weapon, because he committed the murder.” Shortly afterwards he repeated the statement that the applicant had disposed of the murder weapon “because he committed the murder and the weapon had to [be taken] out of that house as quickly as possible”. In other words he acted in this way because he was implicated in the commission of the murder and he had to get rid of the weapon for that very reason. Doubtless counsel was emphasising, as fairly he might, the strongest parts of the circumstantial case against the applicant but thereby he was pointing not merely to ownership of the weapon, otherwise proved to have been the weapon that fired the fatal shot, but also to the alleged fact that the applicant’s knowledge and consciousness of his participation impelled him to get rid of that incriminating evidence.
[9]See para.[20].

If that were so, the prosecution case involved not merely the use of the material as circumstantial evidence but its use as leading to an inference that thereby the applicant was impliedly admitting his participation in the commission of the murder. Those words were, of course, never uttered, never described and never analysed by counsel on either side or by the learned judge. It was clearly a case in which no side wished to look at the matter in that way. I have suggested on other occasions[10] why that may be so inasmuch as any suggestion of consciousness of guilt brings with it the obligation to direct in the elaborate terms required in Edwards and Zoneff. Not only does counsel for the defence wish to avoid undue emphasis of matters which point strongly to a conclusion of guilt where the directions, though cast in terms of warnings, draw attention to every aspect of damning detail, but counsel for the prosecution likewise frequently eschews the expression as the warnings require a cutting back of what is otherwise an effective circumstantial case. The issue, nevertheless, in cases such as the present is whether the emphasis on the implied admission of guilt is sufficiently great as to justify the full consciousness of guilt warning, notwithstanding that the expression had not been adopted in argument, or whether it is sufficient to treat it as part of the circumstantial case, subject to the requirements which a direction on that subject imposes. In some cases, such as R. v. Nguyen[11], the implication is so strong that a direction has been required whatever the language used and indeed notwithstanding a conscious attempt to avoid any suggestion to the contrary.
[10]See, e.g., R. v. Franklin [2001] 3 V.R. 9 at 42-54 paras.[101]-[131], esp. at 49 para.[118]. There may be a difference of approach from that of Brooking, J.A.: see at 31-32 paras.[61]-[66].
[11][2001] VSCA 1.

One might say in the present case that the prosecutor’s address touched on this aspect of the evidence effectively only once and in circumstances where he was addressing on the various items of circumstantial evidence and without employing any of the conventional terms used when consciousness of guilt is relied upon. Nevertheless, the learned judge returned to these contentions in the course of describing the prosecutor’s argument in the course of his charge and, although they were essentially accurately reproduced, the evidence as to the disposal of the gun was described in arguably more emphatic terms than in the prosecutor’s address. He referred to the fact that the weapon had been in the applicant’s possession, that it was taken to Bendigo only a very short time after the death and that his explanation was “quite extraordinary”. As his Honour recounted it:

“He feared that he may be involved, not, it seems, in an allegation of homicide, but in relation to the possession of unregistered firearms. Why on earth, the Crown argues, would he have disposed of the gun in this fashion?”

The unstated hypothesis to this proposition must clearly have been, “unless he was guilty of the murder”. There was not, of course, any further discussion of what was intended nor any discussion of consciousness of guilt or of the requirements laid down for the jury’s acceptance of such evidence.

Was it, therefore, a case in which the question was so implicit that a direction was required in terms of Edwards and Zoneff? The question inevitably asks the same questions as arose in R. v. Nguyen[12] and Dupas. The facts and arguments in those two cases are set out in detail in the judgment of O’Bryan, A.J.A. which I have had the opportunity of reading in draft form. Nguyen posed a very stark question, for there was no dispute that the accused both owned and had fired the murder weapon. The only real issue was his intent in firing it, the circumstances being similar to those in the present case in that the accused had sought to rid himself of what was the incriminating weapon. The question, in the absence of any admission, was necessarily to be resolved by circumstantial evidence as to what the accused had in mind when he fired the gun. No direction on consciousness of guilt or the like was given so the jury were left to speculate as to why the accused had thought it necessary to hide all traces of the weapon, particularly as there could ultimately be little doubt that he had fired it. Without assistance, the jury might have jumped conveniently to the conclusion that only a guilty person would act in that way and that this was convincing evidence that he had impliedly admitted that he had murdered the victim. It might be said that the evidence in that case was critical in the sense that the subsidiary circumstantial evidence as to relationship and the like was equivocal to say the least and hardly likely to be able to support a conviction.
[12][2001] VSCA 1.

That is how counsel for the applicant characterised the evidence in the present case. There were, he said, relatively few items of evidence which amounted to the circumstantial case against the applicant. At the end of the day, although there were arguably seven or eight items of evidence which supported the circumstantial case, none provided unequivocal support for the prosecution case and most were directed to proof of opportunity. Even the evidence as to motive was thin and the evidence as to the three one hundred dollar notes could not stand on its own feet for this purpose. The real evidence was the applicant’s ownership of the gun and its subsequent fate, together with the accompanying spent cartridges. If the Crown had been unable to prove that the applicant was the owner of the gun and that the gun had been used to fire the fatal shot, there would have been simply no case against the applicant. But that very statement shows what was truly critical to the case. It was possession of the gun and the spent cartridges which truly damned the applicant. That was why his case was directed to proving the possibilities, such as there were, of one or both of the victim’s sons entering his premises to take the gun and then returning it after the shooting. If that evidence did not raise a reasonable doubt, however, then it was possession of the gun and the cartridges which damned the applicant rather than what he subsequently did with them.

That sowed the seeds of a further problem. It was far easier for the jury to reach a conclusion rejecting the possible “borrowing” of the gun, as the applicant contended, if they accepted what he did with it thereafter. His story as to avoiding prosecution for firearm offences was said to be far-fetched by the prosecution and so it may well have seemed to the jury. What it was said to evince was a realisation by the applicant that he was in possession of both gun and spent cartridges which had been used in the shooting of the deceased and that he rid himself of them because, as a guilty man, he saw that possession of them would condemn him. That is why it is said that, as argued, it was a case in which the applicant acted in a way which demonstrated in itself that he was implicated in the commission of the offence.

On the other hand the Crown said that its essential contention had involved the conventional proof by circumstantial evidence of a case which as a whole demonstrated the applicant’s guilt. The removal of gun and cartridges was one factor, no doubt an important factor, in supporting a conclusion that he was guilty, not because any one of the individual factors had to be proved beyond reasonable doubt but because the case as a whole could be said to fairly demonstrate that conclusion. So it was said that this case was closer to Dupas inasmuch as this material merely assisted in drawing the required inference, which conclusion was supported primarily by possession of the gun and cartridges, together with the other factors relied upon. So it was said that this statement of principle from Dupas in the judgment of the President[13] was more apposite to the present case:

“In a case such as this one, where the Crown was seeking to establish the applicant’s involvement in the crime through the combined force of a series of circumstances which, in the Crown’s submission, excluded any hypothesis reasonably consistent with innocence, it will not often be the case that any one particular evidential circumstance will, by itself, amount to an implied admission of guilt by the accused of the crime with which he is charged. Whether the evidential circumstance comprises a statement made to the police or some other conduct of the accused, its probative strength will ultimately depend upon the combined force of all the circumstances of which it forms part.”

It must be conceded that the case against Dupas was far more elaborate and dependent on many more circumstances than were here called in aid by the prosecution, though that is not conclusive.

[13]At para.[26] per Winneke, P. in a judgment concurred in by Phillips and Batt, JJ.A.

Nevertheless we are looking at a case where neither counsel nor judge referred to consciousness of guilt nor to any form of implied admissions as such. The prosecution case was essentially characterised as a circumstantial evidence case, dependent upon proof of a number of disparate facts. The comments to which I have drawn attention, both as expressed by the prosecutor and as translated by the trial judge, can properly be seen as comments, as rhetorical questions directed to a case which pointed fairly and squarely to the applicant’s guilt. Little time was spent on the precise significance of the sending of gun and cartridges to Bendigo; rather it was seen in the context of an additional factor to add to the unexplained possession of those items by the applicant. Was it therefore necessary, as a precaution, to give a direction relating to consciousness of guilt, especially where counsel never suggested that it should be given, nor had he taken any exception to the charge complaining that one had not been given?

In the end I am satisfied that the circumstances here did not require the giving of an Edwards-Zoneff direction as to consciousness of guilt. Although there were many factual differences from those considered by the Court in Dupas, it is not a case in which the Court ought to seek out a basis for a direction which was not sought, nor is it akin to the type of case considered in Nguyen which the Court perceived as a single issue case where the disposal of the firearm either made or broke the Crown’s case on the critical issue, namely the criminal intent of the accused. As was recognised in Dupas, such a case will be rare because it requires one to read into the submissions something which was not in fact said, but only left to implication. It was only because the implication was so obvious in Nguyen and the attempt to avoid it so clear, that the Court felt, in effect, that nobody was calling a spade a spade. There was a concentration in Nguyen on what the accused’s acts betokened which was absent in the present case. Doubtless it was an important element here, but counsel’s dealing with it was no more extensive, so I believe, than I have set out in this judgment. Likewise the learned judge’s charge elaborated the point in the single sentence set out above.[14] Even when he returned to the subject in summarising the prosecutor’s argument he repeated the question in arguably less emphatic terms. Doubtless one could say that it spoke for itself, but, although the evidence was used as part of a contention that the applicant’s activities in removing the murder weapon pointed to his guilt, at no time was it asserted that that constituted an admission, implied or otherwise, of a particular kind. In truth, as I have already stated, the critical aspect of the evidence was the ownership itself of gun and cartridges which pointed as part of the circumstantial case to the guilt of the applicant. I would therefore not accede to the applicant’s argument on this ground and it should therefore be rejected.
[14]See para.[31].

Ground 5 - Failure to direct as to complicity.

The ground here relied on is a curious one in that essentially it asserts a failure to give, so it is said, what would have been proper directions as to the complicity of the co-accused Mrs Cox. The case against the applicant was always that he was the perpetrator of the murder by firing the critical shot into the head of the deceased. Mrs Cox’s participation in the murder was relevant only to provide some motive where otherwise none could be ascribed to the applicant. The case, however, against her as opened by the Crown was that she counselled and procured the commission of the offence, in substance treating her as a principal in the second degree, at least as it is presently understood.

As it turned out the learned judge directed the jury that Mrs Cox was claimed to be guilty by causing her husband’s death by “engaging” the applicant to kill the deceased. His Honour made a brief reference to the concept of concert, but at first eschewed any attempt to define it by simply stating that, if the jury were satisfied beyond reasonable doubt that Mrs Cox engaged the applicant to carry out the murder, then she was also guilty of the crime. A jury question, however, provoked the judge into giving a further direction as to concert because they asked whether Mrs Cox’s guilt was “dependent on the procuring of Richard Bradley only”. His Honour therefore repeated that not only was the perpetrator guilty, but that an individual who counselled or procured the performance of the killing was likewise guilty if that were established. He then returned to concert, again stating that the relative simplicity of the allegations here required no real explanation. However, because of the question he thought he should provide some further explanation. So he said that what had been asserted in relation to Mrs Cox was that “she acted in concert with Richard Bradley”, who had in fact killed the deceased, as it was alleged. He then gave a conventional explanation of concert by stating that, if two or more persons agreed to commit a crime and each played a part in its commission, or held themselves ready to do so, they were all equally guilty of the crime. He gave the familiar example of the participants in a bank robbery including participants who drive a car or are engaged to give warning of police or other outsiders. He then repeated that, if a person engaged another to kill somebody on his or her behalf, then that person was equally responsible for the killing, but that in the present case the Crown had to satisfy the jury that Mrs Cox had procured the applicant to murder her husband and that he did so pursuant to that “arrangement”.

One may say that thereby the learned judge appeared to confuse two concepts, although I think he was only trying to assist the jury to avoid getting involved in too esoteric an examination of concert. On this application counsel argued that it was not open to conclude that the applicant and Mrs Cox had acted in concert because Mrs Cox had never been present in the wide acceptation of that term.[15]
[15]See, e.g., R. v. Camilleri [2001] VSCA 14.

Counsel argued that, having regard to the judge’s charge on concert, if the case against Mrs Cox fell over, then also it must fail as against the applicant. I am unable to see the logic of that contention. Of course, if the prosecution failed to make out the basis of its case against Mrs Cox, namely that she wished to be rid of him, then that would have reflected, as a matter of common sense, on the strength of the case against the applicant, for the only motive alleged was an agreement to carry out an execution-style killing to rid Mrs Cox of her husband. That, however, went to the strength of the circumstantial case, not to matters of legal analysis. In truth, concert or complicity, counselling and procuring, or aiding and abetting were all irrelevant to the proof of the case against the applicant. On the Crown case he was the perpetrator: there was no other way in which it was said that he participated in the killing of the deceased. If he was able to raise a reasonable doubt in the mind of the jury as to the carrying out of the shooting, then he was entitled to an acquittal. If not, it was of no consequence whether the case against Mrs Cox succeeded. The ground cannot succeed.

Ground 1 – Failure to direct jury as to bases upon which Mrs Cox could have been found guilty and the applicant not guilty.

This ground seeks to tackle the potential issue of concert in a somewhat different way. The complaint was that the learned judge failed to direct the jury that there were bases upon which the co-accused Mrs Cox could have been found guilty but the applicant not guilty of the count of murder. This was again a point not raised at the trial and, at least to my way of thinking, seems far removed from the realities of the trial. That it was in law open to the jury to convict Mrs Cox and yet acquit the applicant was not only a possible outcome but one which was adverted to by both prosecutor and trial judge on a number of occasions. The jury was properly told that they had to be satisfied beyond reasonable doubt on the basis of the evidence admissible in the trial of each accused before reaching a verdict of guilty. Moreover, although the evidence covered the cases of both accused, the arguments put to the jury by the prosecutor properly placed in separate compartments, at least for the purposes of the present discussion, the relevant evidence. The prosecutor naturally enough dealt with the case of the applicant first because, as was more than apparent from the outset, the primary way in which the case was put against Mrs Cox was that she counselled and procured the applicant to shoot her husband. For that purpose alone proof of the applicant’s shooting the deceased also formed a necessary part of the case against Mrs Cox.

Counsel on this application, nevertheless, suggested that it was open at the trial against Mrs Cox for the jury to have a doubt that the applicant had killed the deceased but to be satisfied that she had procured somebody else to murder her husband and that in that way her husband had been murdered. But this was simply not how the case was run. Counsel appeared to contend that, because it had been suggested by way of defence, particularly in the applicant’s case, that the victim’s two sons (or any of them) had been responsible for the killing rather than the applicant, so the case against Mrs Cox might have succeeded on that basis. Perhaps it might have been possible to find Mrs Cox guilty of procuring one or both of her sons to commit the murder, but it was not the prosecution case at any stage. Moreover, if the hypothesis were satisfied, that the jury had not been persuaded that one or both of the sons were not party to the murder, then of course that doubt in itself would have entitled the applicant to an acquittal, which was precisely the case counsel at the trial sought to make on his behalf. There was, in my opinion, no need to elaborate then the possibility that a verdict of guilty might be found against Mrs Cox and the applicant acquitted. That outcome is obvious without any legal elaboration, which was unnecessary, except to the extent that prosecutor and judge made clear to the jury that they had to consider each case separately. There was therefore no error in the way in which the judge directed the jury on this subject.

Moreover, the hypothesis used as the basis for saying that the applicant might not have been found guilty of the killing of Mr Cox, could not in itself lead to a conviction of Mrs Cox. As counsel for the respondent pointed out, it is one thing for the Crown to fail to satisfy the jury that every other reasonable hypothesis has been fairly excluded. It is quite another to say that a lack of satisfaction as to the case against the applicant could, or should, bring with it the further consequence that it was open to the jury to find against Mrs Cox upon a basis which had not been put to them and which depended on one or both of her sons or possibly somebody else committing that murder. There was simply no evidence adequate to support such a conclusion against Mrs Cox. The prosecution, therefore, properly had not sought to establish its case against Mrs Cox on this other hypothesis. Consequently it was not appropriate for either prosecutor or judge explicitly to suggest to the jury that they could find Mrs Cox guilty upon the basis of somebody else perpetrating the murder, at the same time acquitting the applicant. No direction of the kind suggested should have been given and this ground must likewise be rejected.

Ground 4 – Whether verdict unsafe and unsatisfactory.

The basis for the argument on this ground was essentially that there had been an aggregate of errors such as would lead to a lack of confidence in the verdict and, secondly, that it was not open on the evidence for the jury to be satisfied beyond reasonable doubt as to the applicant’s guilt.

I have already dealt with the specific errors and reached the conclusion that there were no such errors, so that the first basis of this ground cannot be sustained.

The second basis, which rested upon a contention that the evidence was far from overwhelming and such that this Court should not be appropriately satisfied as to the jury’s verdict upon it, depended upon an analysis of the evidence and the way in which the Crown put its case against the applicant. It was contended that the circumstantial case made by the Crown depended on two matters, namely the ownership of the murder weapon and the applicant’s disposal of it with the cartridges to Bendigo. It was said, however, that there was insufficient evidence of motive or of any agreement with Mrs Cox, so that the Court should feel a “palpable sense of disquiet” at the verdict reached.

Doubtless counsel was correct to state that the most significant elements in the Crown case were proof of ownership of the weapon and its use and of its subsequent disposal. But that was not the whole case and there was a good deal more upon which the Crown relied, especially as to evidence of opportunity. The ownership of the gun, shown by expert evidence to have been that which fired the fatal shot, together with retention of the cartridges, was the single most important element in the Crown case, whatever happened thereafter to them. The fact that that gun was kept in the applicant’s own drawer required an explanation (in the practical, though not the legal, sense) which the applicant simply could not give. His case sought to throw doubt by seeking to ascribe blame to one or both of the victim’s sons and then to weave an ingenious story as to how they got in and out of his home on the night in question. It is not surprising that the jury rejected that story and it is equally not surprising, properly directed, that they were satisfied beyond reasonable doubt that

such hypotheses were not true. If they reached that degree of satisfaction, then the other evidence was of peripheral importance, although by no means to be cast aside or disregarded. I can see no basis for a conclusion that the verdict was unsafe and unsatisfactory. The ground must be also rejected.
Conclusion.

For the reasons stated above I consider that none of the grounds relied upon by the applicant have been made out. For that reason the application should be dismissed.

BUCHANAN, J.A.:

I have had the advantage of reading in draft the reasons for judgment of Ormiston, J.A. and O’Bryan, A.J.A. I agree that the application should be dismissed for the reasons they have stated.

O'BRYAN, A.J.A.:

I gratefully adopt the summary of the evidence provided in the reasons of Ormiston, J.A. which I read in draft form. I agree in his reasons that the application should be dismissed. I propose to consider the substantial matter argued by counsel for the applicant under the substituted grounds 2 and 3. Although these grounds were argued separately they overlap to a considerable extent.

Grounds 2 and 3 relate to errors said to have been made by the trial judge in failing to adequately direct the jury,

(a) as to the use they could make of the alleged lies told by the applicant; and
(b)on the issue of consciousness of guilt in so far as it related to the applicant’s removal of the murder weapon to Bendigo.

Whether the Crown case against the applicant was purely and simply a circumstantial case calling for a Chamberlain[16] direction became a critical issue. In

Chamberlain, the court was considering a case depending on circumstantial evidence which did not include evidence of lies told by the accused. Gibbs, C.J. and Mason, J. said:
“When the evidence is circumstantial, the jury, whether in a civil or a criminal case, are required to draw an inference from the circumstances of the case; in a civil case the circumstances must raise a more probable inference in favour of what is alleged, and in a criminal case the circumstances must exclude any reasonable hypothesis consistent with innocence (see Luxton v. Vines[17]; and Barca v. The Queen[18]).”[19]

[16]Chamberlain v. The Queen (No.2) (1984) 153 C.L.R. 521.

[17](1952) 85 C.L.R. 352 at 358.

[18](1975) 133 C.L.R. 82 at 104.

[19]Chamberlain (supra) at 536.

Counsel for the applicant submitted to this court that an Edwards[20] direction was required because the evidence against the applicant included lies from which, and in addition to the facts related to the applicant’s removal of the murder weapon to Bendigo, the Crown contended any hypothesis reasonably consistent with innocence could be excluded. In Edwards, Deane, Dawson and Gaudron, JJ. in a joint judgment said:

“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 the truth of the matter about which he lied would implicate him in the offence, or, as was said in Reg. v. Lucas, because of a realisation of guilt and a fear of the truth.”[21]

Counsel for the Crown submitted in this Court that because the judge made clear to the jury that the case was a circumstantial one, an Edwards direction was not required.

[20]Edwards v. The Queen (1993) 178 C.L.R. 193.

[21]Edwards at 210-211.

It is important to identify in context the lie or lies told by the applicant. In a written statement made to the police on Sunday 28 June 1998, and signed by the applicant at 8.29 p.m. he told the police that he got up at about 8.30 a.m. on 27 June (the day of the murder), “listened to the news, but didn’t hear anything about how David died”. Later, in the statement he said: “I do not know how David died, no-one has told me”. He said nothing about the guns being taken to Bendigo and denied having any involvement in the death of the deceased.

When the applicant gave evidence in the trial he said that on the Saturday evening (27/6/98) after coming back from the football he saw on television a newsbreak that said the deceased had been shot. As a consequence, he said, he checked the guns in his house because he was suspicious that his co-accused, Eileen Cox, was at the house the night before. During cross-examination he was reminded of the contents of his statement in which he stated: “I do not know how David died, no-one has told me,” and asked: “That was a lie, wasn’t it?” Answer, “Yes”. The jury was entitled to take into account the lie when it considered the credibility of the applicant as a witness. Nothing more was said about the admitted lie during the evidence.

The prosecutor addressed the jury, firstly in relation to the applicant and, secondly in relation to the co-accused Cox. The prosecutor submitted to the jury that the only issues were whether it was the applicant who shot the deceased in the head and whether the co-accused Cox counselled and procured him to do it.

The prosecutor identified a number of facts and circumstances from which he invited the jury to conclude beyond reasonable doubt the guilt of the applicant. In the course of his address to the jury the prosecutor said:

“Now, the accused has given an account to you, the other day, of what he said happened on the Saturday. That around about 5.30 he heard on the news that Mr Cox had been killed, in fact had been shot, and then after having a short conversation with Lana he went into the room, this is a man that he says didn’t do it, went into his bedroom, opened the drawer, and there was the pistol that didn’t work and the rifle wrapped in a towel. He said what he did then was that he became suspicious - that was the reason he gave as to why - he became suspicious of Eileen even though Eileen had been with his wife all night at bingo until 10 o’clock, and in his presence until they went to bed. It was because he was suspicious of Eileen Cox that he then gave the gun to Lana to take to Bendigo, and he said this, he said because he thought the police would come round to his house. Well, why would he think that? He says, ‘Well, because I was suspicious of Eileen Cox and she was round there the previous night’. We know Eileen couldn’t have done it. Why, members of the jury, would he take the firearm? He says he got it out of the drawer and had a sniff and it seemed as though it had been fired. So he thinks to himself, ’This could be the murder weapon’. What does he do? He says to you that, ‘I was frightened the police would be coming round and finding an unregistered firearm in my possession, that’s why I dispatched them to Bendigo’.
He didn’t think to himself, ‘Well, okay, it is an unregistered firearm, what do I do first of all? Why don’t I hide the gun in the back yard, dig a hole’. He wanted to get the gun as far away from his house as possible, members of the jury, because he knew it was the murder weapon, because he committed the murder. I mean what would he get for possession of an unregistered firearm. A fine of maybe $500, I don’t know what the going rate is not much. But he thought it was the murder weapon, or it could have been, so he moved it as far away from his home as he possibly could with his wife to the relative’s house in Bendigo. It is just an absurd account really when you think about it.”

The prosecutor was making the point that the explanation given by the applicant for moving the gun out of the house was a fanciful explanation and the jury should find that the true explanation was because the applicant had used the gun to commit the murder and didn’t want it found in his house.

The prosecutor’s argument was not based upon the lie in the statement; it was simply that the real reason for disposing of the gun was that he knew it was the murder weapon.

In Edwards[22], in the joint judgment of Deane, Dawson and Gaudron, JJ. their Honours said:

“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.”

[22]Edwards v. The Queen (1993) 193 at 210.

The lie identified in the statement was not used by the prosecutor as an admission against interest. It was used to emphasise why the guns and used ammunition were transferred to Bendigo. The applicant knew that suspicion would fall on him should the rifle which had been fired recently was found in his house. It was a peripheral fact that the applicant denied on the Sunday, eighteen days before he was arrested knowing how the deceased had died.

The applicant’s removal of the murder weapon to Bendigo was an important fact in the Crown case. It was relied upon as a fact from which, in conjunction with other facts, an inference of guilt could be drawn. That would have been so had the weapon been found in his possession, or had the applicant hidden the rifle in the garden of his house. The prosecutor never invited the jury to use the fact that the gun was sent to Bendigo as evidencing consciousness of guilt in the sense that lies or flight can evidence consciousness of guilt in appropriate circumstances. In a blunt way the prosecutor was saying: he removed the gun because he is guilty. The circumstances of the removal cannot be equated with lies or flight from which consciousness of guilt can be inferred in appropriate circumstances.

The case against the applicant that went to the jury was a circumstantial case. The case against the co-accused was based partly on direct evidence, partly on circumstantial evidence and partly on lies suggesting that she had got together with the applicant to fit in with the story he was going to tell the police. The prosecutor referred to a tape recorded interview and a statement to the police as “just a litany of lies”.

The case against the co-accused was principally based upon lies. It is unnecessary to consider the charge to the jury so far as the co-accused Cox was concerned because her conviction is not before the court.

There are two recent unreported authorities in this Court to which I now refer. The decision in R. v. Nguyen[23] was decided in this Court on 27 February 2001. The court comprised Winneke, P., Chernov, J.A. and Smith, A.J.A. This case was relied upon by counsel for the applicant. The decision in R. v. Dupas[24] was decided in this Court on 3 August 2001. The court comprised Winneke, P., Phillips and Batt, JJ.A. I note that an application for special leave to appeal from the judgment of the Court of Appeal has been lodged in the High Court of Australia. If leave to appeal is granted, it will be some time before judgment is delivered in the High Court. This case was relied upon by counsel for the Crown.
[23][2001] VSCA 1.
[24][2001] VSCA 109.

Counsel for the applicant submitted that the lie told in the statement about not knowing the manner in which the deceased had been killed was one of five facts said to support the Crown case.

It cannot be gainsaid that the applicant’s ownership and possession of the murder weapon was a powerful aspect of the Crown’s case. So was his post-murder conduct with the rifle in arranging with his common law wife, Lana McMahon, to take the murder weapon and other items to Bendigo.

However, it was never put to the jury by the prosecutor, nor by the trial judge, that the lie in the statement or the transfer of possession of the weapon could amount to consciousness of guilt. It couldn’t do so. The telling of the lie was really of little consequence to the Crown case. The lie was proved at trial and admitted by the applicant in the witness box. He said that he gave the murder weapon to McMahon to take to Bendigo because he knew or believed:

(a)that the rifle he owned and possessed had recently been fired and
(b)that the deceased had died from a bullet in the head.

The fact that he had lied about his knowledge of the cause of death did not establish of itself “a specific contrary proposition.”[25] At most, it went to credit when the applicant gave evidence in the trial. When a lie is only capable of affecting credit an Edwards direction is not called for.

[25]Edwards v. R. at 208.

In Zoneff v. R.[26] in the majority judgment of Gleeson, C.J., Gaudron, Gummow and Callinan, JJ., the court said:

“As a general rule, however, an Edwards type direction should only be given if the prosecution contends that a lie is evidence of guilt, in the sense that it was told because, in the language of Deane, Dawson and Gaudron, JJ in Edwards[27], ‘the accused knew that the truth ... would implicate him in [the commission of] the offence’ and, if, in fact, the lie in question is capable of bearing that character.”

[26](2000) 200 C.L.R. 234 at 244.

[27]Edwards v. R. at 211.

How can it be contended that had the applicant truthfully told the police in the statement that he had listened to the news and learned how the deceased died he would implicate himself in the murder? He admitted in the witness box that he knew how the deceased died but went on to deny his involvement in the murder. The lie was only capable of going to credit, not to proving he was conscious of his guilt.

For the trial judge to give an Edwards-type direction would have been potentially harmful to the defence case for it would have given more importance to the lie than it was given by the prosecutor. It might have led the jury to think that the lie was important to the Crown case when it wasn’t indicative of a consciousness of guilt.

Most significantly senior counsel for the applicant did not request an Edward-type direction before the trial judge commenced his charge.

Nguyen[28]
was convicted of murder. After the death of the deceased he told lies and indulged in deceptive conduct. The trial judge ruled that the post-offence conduct was relevant only to credit and that an Edwards direction was not required.

In his final address the prosecutor exhorted the jury to find that the applicant was an unmitigated liar. The President observed:

“It would seem to me that the prosecutor was inviting the jury to conclude that the post-shooting conduct of the applicant was itself evidence of his guilt of murder; that it was evidence inconsistent with his claim of accident. He was going beyond a mere invitation to regard the applicant as a witness whose evidence should not be believed. Rather, the invitation was to use the applicant’s post-offence conduct as evidence which demonstrated that he had the necessary intent to support the charge of murder.”[29]

[28]R. v. Nguyen [2001] VSCA 1.

[29]R. v. Nguyen at p.5, para.136.

The trial judge directed the jury on the basis that the lies told by the applicant should be used by them as matters going to his credibility. The directions in that regard were held to have been adequate but “in so far as they were intended to be instructions as to how the jury should deal with the applicant’s ‘post-shooting behaviour’ they did not in my view go far enough.”[30]
[30]R. v. Nguyen at p.9, para.13.

It is unnecessary to refer to the separate judgments of Chernov, J.A. and Smith, A.J.A. The court allowed the appeal upon the basis that in the way the evidence was used or capable of being used by the jury an Edwards direction was required.

Dupas[31] was convicted of murder. The case against him was circumstantial. Dupas gave evidence in his defence and in doing so accepted many of the circumstances which had been proved by the Crown but gave explanations for them which were calculated to portray them in a light consistent with his innocence[32]. Dupas had told lies both in and out of court, but the trial judge considered that if the jury found he did tell untruths about knowledge of the deceased they were simply matters to which they could have regard with the other pieces of evidence as part of the circumstantial matrix.
[31]R. v. Dupas [2001] VSCA 109.
[32]R. v. Dupas at p.10, para.17.

Counsel for the defence did not request an Edwards-type direction, nor did the prosecutor.

The President, in whose reasons Phillips and Batt, JJ.A. agreed, delivered the principal judgment. His Honour rejected a submission that the failure of the trial judge to give an Edwards-type direction led to a miscarriage of justice. The following passage in the President’s judgment is important, and most apt in the circumstances of this appeal[33].

“It seems to me to be over-technical and removed from the circumstances of the trial, the issues being fought, and the nature and purpose of the evidence in respect of which the impugned directions were given. The circumstances in which the trial judge, in the interests of fairness, should give a direction in accordance with Edwards v. R. (supra) cannot be confined within, or prescribed by, rigid formulae[34]. Whether such a direction should be given – and in what form – will depend upon a number of factors including the nature of the evidence which is said to require such a direction, the purpose for which it is tendered and the use which the Crown is making of it[35]. In a case such as this one, where the Crown was seeking to establish the applicant’s involvement in the crime through the combined force of a series of circumstances which, in the Crown submission, excluded any hypothesis reasonably consistent with innocence, it will not often be the case that any one particular evidential circumstance will, by itself, amount to an implied admission of guilt by the accused of the crime with which he is charged. Whether the evidential circumstance comprises a statement made to the police or some other conduct of the accused, its probative strength will ultimately depend upon the combined force of all the circumstances of which it forms part[36].”

[33]R. v. Dupas at p.18, para.26.

[34]cf. Zoneff v. R. (2000) 200 C.L.R. 234 at 244; R. v. Andrea Morgan (unreported, Court of Appeal, 13 August 1996 per Hayne, J.A. at p.6).

[35]R. v. Andrea Morgan, supra, at p.6; R. v. Nguyen [2001] VSCA 1 at [18] and [20].

[36]R. v. Bogunovic [1999] VSCA 133 at [39].

The case against the applicant was proved by the combined force of a series of circumstances which excluded any hypothesis reasonably consistent with innocence. The lie in the statement was of little probative weight, alone or when added to the conduct of the applicant in sending the murder weapon to Bendigo. The Crown did not rely upon the applicant’s lie, nor upon his post-murder conduct in sending the murder weapon to Bendigo as implied admissions of guilt. They were simply part of the circumstantial matrix.

The case against the applicant included the following evidence; direct and indirect.

1.Opportunity in circumstances where there was evidence he was not in his home at the time when the murder occurred, but returned to his house some time later.
2.Unusual presence in the deceased’s house on the evening of the murder some time before the murder took place.
3.Unusual absence of the deceased’s wife from the matrimonial home on the night of the murder and her presence with the applicant’s wife.
4.Possession of three $100 notes after the murder, the denominations being identical to a large sum of money withdrawn by the co-accused from her bank a day or so previous.
5.Ownership and possession of the murder weapon in his house shortly after the murder.
6.Disposal of the murder weapon to Bendigo.

The case of Nguyen can be distinguished because there the evidence reeked of acts showing consciousness of guilt. Having regard to the observations of the President in Dupas, to which I have referred in detail, I am of the view that a full Edwards direction was not only not required, it would have been disadvantageous to the applicant had it been given.

The High Court cases to which I have made reference, Edwards and Zoneff, do not require an Edwards direction unless lies and conduct indicate a consciousness of guilt. I have had regard to the concession, if not a request, by counsel for the applicant that an Edwards direction should not be given to the jury.

I too would refuse the application.

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[2001] VSCA 212

28 November 2001