R v Bryce (No 3)

[2014] NSWSC 559

Supreme Court

New South Wales

Medium Neutral Citation:	R v Bryce (No 3) [2014] NSWSC 559
Hearing dates:	28 to 30 April, 1 to 5 and 7 to 9 May 2014
Decision date:	12 May 2014
Jurisdiction:	Common Law - Criminal
Before:	Beech-Jones J
Decision:	Jury to be instructed in accordance with Edwards v R [1993] HCA 63; 178 CLR 193 in respect of two statements made by the accused.
Catchwords:	EVIDENCE - lies - consciousness of guilt - "Edwards" direction - approach of trial judge in considering application for direction.
Cases Cited:	- Edwards v R [1993] HCA 63; 178 CLR 193 - R v Bryce (No 1) [2014] NSWSC 495 - R v Bryce (No 2) [2014] NSWSC 498 - R v Lane [2011] NSWCCA 157; 221 A Crim R 309 - R v Lucas [1981] QB 720; [1981] 2 All ER 1008 - Zoneff v R [2000] HCA 28; 200 CLR 234
Category:	Procedural and other rulings
Parties:	Crown (Prosecutor) John Keith Bryce (Accused)
Representation:	Counsel: E. Balodis (Crown) P.S. Williams (Accused) Solicitors: Director of Public Prosecutions (Crown) Andrew Scali (Accused)
File Number(s):	2012/156908
Publication restriction:	Not published until after verdict reached.

Judgment

1. On Friday, 9 May 2014, I heard argument in the absence of the jury concerning an application by the Crown that I direct the jury that certain alleged lies told by the accused to the investigating police demonstrated a consciousness of guilt on his part (i.e. an "Edwards direction": Edwards v R [1993] HCA 63; 178 CLR 193 ("Edwards")). The application was opposed by counsel for the accused, Mr P.S. Williams.

1. At the conclusion of argument I announced that I would give such a direction in respect of two statements that were identified by the Crown during the course of its submissions. I also announced that in doing so I would refer to three items of evidence as potentially demonstrating that the statements were untrue. I indicated that I would give written reasons shortly. This judgment constitutes those reasons.

The Crown case

1. I outlined the Crown case in R v Bryce (No 1) [2014] NSWSC 495 ("Bryce (No 1") at [3] to [10]. Judgment in Bryce (No 1) was given two days prior to the jury being empanelled and the Crown opening its case. At this point of the trial the Crown is about to close its case. Despite that, the summary in Bryce (No 1) at [3] to [10] is broadly accurate, although the following should be noted.

1. First, the Crown case is not that the accused intended to kill the deceased, but instead only that he intended to inflict grievous bodily harm upon her.

1. Second, during the course of the trial the Crown Prosecutor stated that the Crown was not pursuing the alternative case referred to in Bryce (No 1) at [9] that it was some act of the accused towards the deceased prior to the evening of 15 May 2012 which caused her death. Instead the Crown will rely on medical evidence that it adduced to submit that the deceased received an injury some time after 5.00pm on 15 May 2012 which caused a subdural haematoma. The Crown contends that the deceased was alone with the accused in his apartment from that time until police arrived at the apartment at around 9.15pm.

1. Third, in Bryce (No 1) at [4] I stated that, according to the Crown case, the accused returned to his apartment about two hours after the deceased on the evening of 15 May 2012, i.e. around 7:00pm. This was incorrect. While the error was immaterial to the decision in Bryce (No 1) or to R v Bryce (No 2) [2014] NSWSC 498, if it remained uncorrected it would be material to this application. In fact the Crown adduced evidence indicating that the accused's electronic key was used to gain access to the apartment building around 12:05pm. The accused told police that he returned to the apartment complex around that time but left the building periodically during the afternoon before returning later in the afternoon at a time prior to the deceased returning to the apartment. There is CCTV footage of the accused leaving the elevator of the apartment building at 6.57pm. A still photograph taken from some CCTV footage and records made of the use of his electronic access key indicated the accused re-entered the building sometime between 7:09pm and 7:13pm.

1. Fourth, the jury has heard from two witnesses, Mr Raci Parlak and Luke Stokes, both of whom gave evidence of observing a male and a female in the corridor immediately outside the accused's apartment some time between the time when the deceased returned and the attendance by the police at the apartment at 9:15pm on 15 May 2012 (see Bryce (No 1) at [5]).

1. Mr Parlak occupied unit 202. Mr Stokes had visited for most of the day and stated that he had visited the apartment many times previously. I will not describe their evidence in detail, but it suffices to state that both Mr Parlak and Mr Stokes recognised the male and the female in the corridor as the occupants of the accused's unit, and both observed the female as requiring assistance to stand up as though she was drug affected. In fact their observations are consistent with the deceased suffering the effects of her subdural haematoma. They both gave different times for their observations. Mr Parlak said it occurred around 9pm or 9:10pm, just after he had finished watching a particular television programme. Mr Stokes recalled that it was "just before dark". However both times were within the period after the deceased's return to the building and prior to the attendance by the officers at the door of the unit.

1. Fifth, the jury has also heard evidence from a resident of the unit immediately below unit 206, Ms Barbara Dennison. Ms Dennison stated that on the evening of 15 May 2012 she heard from the unit above hers an "argument", noise "like furniture was being moved", a sound which she described as "thudding", and another sound that she described as being "like a drill". She said the noises did not last for hours, but it was still "a long time". Ms Dennison stated that she heard the noises after the television program, "Home and Away", finished at 7:30pm.

1. Sixth, it is necessary to say something further about the accused's electronically recorded interview with a suspected person ("ERISP"). It was conducted on the afternoon of 16 May 2012. It occupied almost four hours. Towards the end the accused was clearly tired and fatigued. At times the accused had difficulty confining himself to answering the interviewing detective's questions, and at other times he appeared to be unable to provide a coherent narrative.

1. Subject to those observations, the events as recounted by the accused concerning the evening of 15 May 2012 developed during the course of the interview. Thus in answer to question 68 the accused refers to being woken up by the deceased and noticing that she was "sort of talking normal but getting a bit slow", and then refers to them both falling asleep. As I will explain, from around answer 419 to 530, he indicated that when the deceased returned to the apartment she woke him up, they had sex, they spoke for a period, and then both returned to sleep before the police knocked on the door.

1. However, later in the interview from around question 862 the investigating detective put to the accused the effect of Mr Parlak's and Mr Stokes' evidence noted above. When that was raised with him, he said that during the period of half an hour when he was talking to the deceased, that "We were actually going for a walk down the shop or something like I said", and that he attempted to talk to her but she was "sleepy". At this point of the recording the accused can be seen to demonstrate that the deceased was collapsing on her feet in a manner similar to that described by Mr Stokes and Mr Parlak. The accused said that, with the assistance of Mr Stokes, he then took her back inside and put her on a mattress in the living room. He said this all occurred after they had had sex.

Lies as consciousness of guilt

1. In R v Lane [2011] NSWCCA 157; 221 A Crim R 309 ("Lane") at [56] Simpson J (with whom Howie J agreed at [85]), paraphrased the requirements as stated by McHugh J in Edwards as to when a lie said to have been told by an accused person can constitute corroboration of the case against them, namely:

"(1) the lie must be deliberate;

(2) the lie must relate to a material issue;

(3) the motive for the lie must be a realisation of guilt and a fear of the truth;

(4) the statement said to constitute a lie must clearly be shown to be a lie by admission or by evidence; where evidence of the lie is tendered as corroboration of the evidence of a witness, the evidence showing that the statement is a lie must be from a person other than that witness."

1. Four matters should be noted about this passage.

1. First the qualification to the fourth proposition concerning corroboration has no relevance to this case.

1. Second, McHugh J dissented in Edwards. Further his Honour discerned the above four requirements from the judgment of Lord Lane in R v Lucas [1981] QB 720; [1981] 2 All ER 1008, and expressly stated that it was not necessary to address their correctness (Edwards at 215). The plurality in Edwards of Deane, Dawson and Gaudron JJ expressed reservation about treating these as "bare requirements" and expanded upon the second and third requirements (at 210 to 211). In the case of the third requirement it was later said that it is best expressed as one that requires that "the accused know that the truth ... would implicate him in the [commission of] the offence" (Edwards at 211; Zoneff v R [2000] HCA 28; 200 CLR 234 at [16] ("Zoneff") per Gleeson CJ, Gaudron, Gummow and Callinan JJ). I note that the standard direction in the bench book reflects this formulation.

1. Third, in Lane at [58] Simpson J noted that the underlying premise of the area of discourse is that the relevant statement is "factually false or wrong".

1. Fourth, the role of the trial judge and the jury at the various points in the trial needs to be borne in mind. At this point of the trial the evidence in question has already been admitted. However, the Crown is seeking a direction concerning the use the jury can make of the evidence and no doubt will seek to tailor its closing address accordingly. Thus at this point the question is whether the evidence is capable of meeting the various requirements to engage consciouness of guilt reasoning. Thus in Lane at [60] Simpson J stated:

"The decision in Edwards was primarily concerned with the directions to be given to the jury once the evidence has been admitted, and permitted to be used for the purpose of showing consciousness of guilt. Whether:

• a statement is false;

• a false statement is a deliberate lie;

• a deliberate lie relates to a material issue;

• a deliberate lie was told out of a realisation of guilt and a fear of the truth (and to avoid the consequences of that)

are all questions of fact, and within the province of the jury. The task of the trial judge, in determining whether the evidence may be used in this way, is to determine whether it would be capable of meeting those tests - that is, whether it would be open to the jury to find affirmatively that it did. If the evidence is capable of meeting those tests, then it is admissible, and, subject to discretionary considerations, or considerations raised by, for example, s 137 of the Evidence Act, the prosecution is entitled to have the evidence admitted as part of its circumstantial case. If admitted, it is the task of trial judge carefully to direct the jury in accordance with the four propositions stated in Edwards. The evaluation remains the task of the jury." (emphasis added)

The Crown's application

1. During the course of the submissions on the Crown applications, I requested the Crown Prosecutor identify the precise statements said to have been made by the accused which were said to warrant an Edwards direction (see Edwards at 210). In the end result, the Crown Prosecutor identified two such statements, and four items of independent evidence as demonstrating the untruthfulness of those statements.

Statement to police officer McDiarmid

1. The first statement was in a conversation the accused had with police officers McDiarmid and Perrett when they attended at the accused's apartment some time around 9:15 on the evening of 15 May 2012 (Bryce (No 1) at [5]). Officer McDiarmid recounted that shortly after an ambulance was called he had the following conversation with the accused:

"I said 'How long has she been like that? I don't think she's asleep.'

John Bryce said, 'Yeah she is. I went to bed for a sleep which is why I was naked when you got here. I woke up with her lying next to me with her pants off.'

Constable Perrett said, 'How did she get in?'

John Bryce said, 'I didn't lock the door, she just let herself in. I didn't even wake up until you guys knocked at the door.'" (emphasis added)

1. In his evidence officer McDiarmid was then asked and answered as follows:

"Q. I will take you to paragraph 23 [of his statement]. Can you give me the conversation there?

A. "I said, 'How long ago did she come in?'

John Bryce said, 'Don't know, three hours ago or something'."

1. The Crown contends that this amounts to a statement by the accused that, from a time prior to the deceased returning to his apartment until the police knocked on his door, the accused had "been in bed". The Crown Prosecutor expressed it in that way because he acknowledged that there is a potential ambiguity as to whether the accused in effect stated that he slept through the arrival of the deceased in the apartment, or that he was briefly woken up when she arrived. However he contended that the accused, at least, clearly stated that he remained in his bed.

1. I accept that the statement made as recounted by officer McDiarmid conveys that. No submission was made to the contrary.

1. The first and fourth issues in relation to whether an alleged lie is said to evidence a consciousness of guilt is whether this statement is capable of amounting to lie in the sense of being false and deliberately so. I have already indicated what the statement conveys. The evidence sought to be relied upon by the Crown that it was untruthful was fourfold.

1. First, the Crown pointed to the evidence of Mr Parlak and Mr Stokes which, if accepted, places the accused and the deceased together outside his apartment at a time between her return to the unit and the arrival of the police. Second, the Crown seeks to rely on the photographs taken from the CCTV footage that I have referred to above which, again, place the accused outside his apartment at a time after the return of the deceased to his apartment. Third, the Crown relies on the admission by the accused towards the end of the ERISP that he and the deceased were outside the unit after they had sex (and before the police arrived).

1. Fourth, the Crown also relied on Ms Dennison's evidence of hearing an argument in the unit above hers. The Crown only faintly pressed this aspect as demonstrating the alleged falsity of the statement it relied upon. As noted the Crown identified the false statement of the accused as being that he did not rise from his bed. It implicitly accepted that there was perhaps some scope within his statements for the possibility that he was woken, and there was some discussion (as well as them having sex) which could account for aspects of the noise heard by Ms Dennison.

1. To the extent that it is necessary to do so, I find that the first three matters constitute either independent evidence or an admission which was capable of demonstrating that the statement made by the accused to officer McDiarmid was untrue.

1. In resisting the Crown's application, Mr Williams pointed to various circumstances surrounding the making of the statements. He submitted that the accused may have been confused, particularly bearing in mind that this statement was apparently made immediately after he had woken up. He ultimately submitted that the statement was not capable of amounting to a lie in the sense of being a deliberately false statement.

1. While the points made by Mr Williams have some force I do not consider that they detract from the conclusion that the statement made by the accused is capable of having the requisite character. At the time the accused spoke to officer McDiarmid the situation must have appeared to him to be relatively serious. He was being questioned about an allegation of assault on the deceased earlier that day and an ambulance had been called for her because she could not be roused. The question asked of the accused was a relatively straightforward one. As I have stated, it is apparent that the accused had difficulty in responding to questions directly and giving a cogent narrative, but he was at least capable of addressing a relatively straightforward request about what had happened in the immediate period prior to the police attending, and the deceased apparently deteriorating. In my view, in light of the nature and circumstances of the statement and the items of independent evidence ultimately relied upon by the Crown, I consider that this statement is capable of being found to be deliberately false.

1. The second issue is whether the statement relates to a material issue in the trial. In my view, it is clear that it does or at least is capable of so relating. The topic of officer McDiarmid's questions was how long had the deceased been in an apparently comatose state that she presented at 9:15pm. In light of the refinement to the Crown case that I have noted above (at [5]), the material issues in the trial include whether the Crown can demonstrate beyond a reasonable doubt that the deceased suffered the injury resulting in the subdural haematoma some time after her return to the apartment, whether she suffered that injury through a voluntary act of the accused undertaken in that period and, if so, whether in committing that act the accused had the requisite intention. In my view, the statement by the accused as to what happened in the period in question is highly relevant to at least the last two of those issues.

1. The third requirement is that the evidence concerning the alleged lie is such that a jury would be able to conclude that it was said "because the accused knew that the truth of the matter about which he lied would implicate him in the [commission of] the offence" (Edwards at 211; Zoneff at [16]).

1. In Zoneff the Court indicated that in addition to identifying the particular alleged lies in question, the Crown should indicate the basis on which they are said to be capable of implicating the accused in the commission of the offence charged (at 17). In this case, a lie of the kind identified above is capable of having that effect, in that it relates directly to the interaction between the accused and the deceased in the immediate hours before she died in circumstances where the Crown's case is that that was the period in which the fatal injury was inflicted.

1. On this issue, Mr Williams repeated the submissions I have made above. However, ultimately none of those matters detract from the capacity of the evidence to meet the third requirement.

1. For these reasons I considered that the requirements for the use of the statement made to officer McDiarmid as a lie evidencing a consciousness of guilty were established.

1. For the sake of completeness, I note that in light of this ruling Mr Williams has been offered the opportunity to further cross examine officer McDiarmid.

Statement in the ERISP

1. I have already described the course of the ERISP, including what transpired at the end of the interview when the interviewing detective put to the accused the broad effect of Mr Parlak's and Mr Stokes' evidence. The second lie sought to be relied on by the Crown concerns an earlier part of the interview in which it contends the accused repeated a version of events about the evening of 15 May 2012, which involved him going to sleep before the deceased returned to the apartment and him not leaving his bed.

1. From question and answers 418 to 426 of the ERISP the accused described returning to his unit at around 5 to 5:30pm with the deceased not being present. He said he had "pretty much walked in my door, shut the door, looked at the mattress and went ... I don't know if I literally collapsed or put me head down". He says that he remembered "just walking through my door and then waking up and Kathy was there". He said that was about 6 o'clock to 6:30pm. He said that he could reference the time because he "and Kathy were actually talking ... she was talking nice [and] we had a bit of a cuddle".

1. Later, from question and answers 456 to 461, the accused expanded upon the conversation that he had had with the deceased. The accused returned to the topic of the conversation at questions and answers 490 to 494. In these answers he recounts a conversation which is perhaps more heated in that he said she boasted about obtaining an AVO against him. The accused stated that this discussion had occurred while he and the deceased were having sex. In answer to questions 526 to 530, the accused recounts the conversation with the deceased while they were having sex. He says that at one point the deceased said something which "put me off sex", but then recounts a soothing conversation where he rubbed her back. His answer to question 527 continues:

"...

And she said, and I go, 'Come on, hon'. And then she's just gone down and she's like 'I love you'. I go 'I love you too, hon'. And then I just went, I love it when she's like this. And then as I thought that and I looked around ...

Q529: From your ... description ---

A: And I've just gone oh, I'm gunna end up with an earful of spit and lifted the pillow up here and then I was just laying there. And as I said I sort of started dozing off and sort of thing and ... then yeah ...

Q530: Then the police knocked on the door.

A: Yeah, knock, knock, knock. But it was actually like that, quietly. So I thought it must have been one of my - " (emphasis added)

1. The Crown Prosecutor submitted that when this passage was read in context the accused in effect stated that he arrived at the apartment prior to the deceased returning, he fell asleep, he was then woken up by the deceased, they talked and had sex, and then they both fell asleep before he was woken up by the police. Thus the Crown Prosecutor contended that it contains the same "lie" that the accused is alleged to have told officer McDiarmid. Bearing in mind that I am only dealing with this issue at the level of its capacity to satisfy the relevant requirements, I accept that submission. Otherwise, the findings that I have made in relation to the alleged lie told to officer McDiarmid at [24] to [35] apply with equal force to this passage. In so finding I note that Mr Williams made similar submissions in relation to this alleged lie.

1. For these reasons, I acceded to the Crown's submission in relation to these passages.

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Decision last updated: 21 May 2014