R v Busson - [2008] SASC 89

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BUSSON
[2008] SASC 89
Judgment of The Court of Criminal Appeal
(The Honourable Justice Debelle, The Honourable Justice Sulan and The Honourable Justice Vanstone)
10 April 2008
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - ABUSE OF PROCESS - IN GENERAL
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - POLICE INTERROGATION - PROPRIETY OF POLICE QUESTIONING AND OTHER CONDUCT BY POLICE - ADMINISTERING CAUTION
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES INVOLVING MISCARRIAGE - MISDIRECTION AND NON-DIRECTION
Applicant convicted of murder of her husband - applicant was originally charged with co-offender - prosecutor entered nolle prosequi against applicant and filed new information with lesser charges - co-offender pleaded guilty and gave evidence at his sentencing - following co-offender giving evidence, prosecutor re-laid charge of murder against applicant - applicant applied for stay of proceedings due to an abuse of process - held, no basis for staying proceedings - applicant applied for permission to appeal on the basis that the trial Judge ought to have excluded certain evidence and that caution administered prior to interview was insufficient - held, trial Judge did not err and caution was adequate - applicant also applied for permission to appeal on the basis that the trial Judge erred in summing up to the jury by failing adequately to deal with co-offender's guilty plea and applicant's conduct after the offence - held, trial Judge directed jury correctly. Application for permission to appeal refused.
R v Childs [2007] SASC 195; Walton v Gardiner (1993) 177 CLR 378; Williams v Spautz (1992) 174 CLR 509, applied.
R v Croydon Justices; Ex parte Dean [1993] QB 769; R v Mohi (2000) 78 SASR 55; The Queen v Fieldhouse (1977) 17 SASR 92; The Queen v Hart, Bullock, Peterson & Hill (1977) 17 SASR 100, distinguished.
Batistatos v RTA (NSW) (2006) 226 CLR 256; Jago v District Court of New South Wales (1989) 168 CLR 23; R v Bradshaw (1978) 18 SASR 83; R v Carroll (2002) 213 CLR 635; R v Dolan (1992) 58 SASR 501; R v Murphy (1996) 66 SASR 406; Van Der Meer v The Queen (1988) 62 ALJR 656, considered.

R v BUSSON
[2008] SASC 89
Court of Criminal Appeal: Debelle, Sulan and Vanstone JJ

DEBELLE J: I have read the draft reasons of Sulan J. I agree with the substance of them. I would refuse permission to appeal.
SULAN J: On 13 April 2007, the applicant, June Busson, was convicted of the murder of her husband, Dennis Leslie Busson. The murder occurred on or about 29 January 2004. Ms Busson has sought permission to appeal and, in respect of one ground of appeal, sought an extension of time in which to appeal. I shall particularise each ground later in these reasons. In order to understand the grounds of appeal, it is necessary to provide the background to the murder and a chronology of events leading up to the applicant being arrested and charged with murder.
Background
The applicant had been married to the deceased for approximately 20 years prior to his death. They were living together at Largs North. They had met in 1977 and married in 1981. As a result of a motor vehicle accident, the deceased suffered a stroke which caused mild brain damage. In about 2003 he became unemployed and he had not worked until his death. The deceased drank alcohol heavily after he ceased work. In 2003, he was diagnosed with throat cancer. He was undergoing radiotherapy at the time of his death. For about 12 months prior to his death, the deceased’s health had grown worse. The applicant was his primary carer. For some time prior to his death, the deceased’s relationship with the applicant had deteriorated. Marital relations did not exist and there was no warmth or affection shown by the deceased to the applicant.
The applicant had met James Slade on New Year’s Eve 2003 at an hotel known as Wee Willie’s Pub. Not long after meeting Slade, the applicant commenced a sexual relationship with him. The applicant made no secret of her relationship with Slade. She made it known to the deceased. Not surprisingly, that caused conflict between them. After the deceased’s death, the applicant told police that she was in love with Slade and wished to set up home with him.
Some time before the deceased’s death, the applicant informed him that she wanted to leave him and live with Slade. The deceased was unhappy at the prospect of his wife leaving him for another man. The applicant wanted the deceased to move out and reside in a caravan. The deceased made it clear that he would not leave. It was the prosecution case that the relationship between applicant and the deceased had deteriorated to the point where she wanted it to end. The deceased, although very ill, was not near death. The applicant had been told that, with proper care, he could expect to live for a considerable time. This interfered with her plans of pursuing a future with Slade. The prosecution case was largely circumstantial. The applicant’s motive to free herself of the deceased was an item of circumstantial evidence on which the prosecution relied.
Slade lived with his father and stepmother within walking distance of the Bussons’ house. He was living with them temporarily. He had been residing at Port Lincoln, but had come to Adelaide to undergo foot surgery. The applicant regularly visited Slade at his home. Slade’s parents were aware that the applicant was married and were aware that she would stay and sleep at their home with their son.
On 28 November 2003, at about midday, the applicant told the deceased she was going to visit Slade. The deceased was due to attend hospital for treatment and was to be picked up by a volunteer. The applicant and Slade went to Wee Willie’s Tavern during the day. Shortly after she and Slade had arrived at the hotel, the deceased came into the hotel. There was a heated exchanged between the deceased, Slade and the applicant. The applicant gave the deceased $20 to purchase beer. The deceased then left.
The applicant returned home at about 2 pm. The deceased had then left for his hospital appointment with a volunteer. She saw the deceased at about 4 pm when he was brought home by the same volunteer. At about 6 pm she left home to meet Slade at his home. The two left shortly after and were seen at the Largs Pier Hotel at about 7 pm. It seems they returned to Slade’s home at about 9 pm. They were filmed at about midnight at Wee Willie’s Tavern, having arrived there at about 9.30 pm.
At about 4.20 am, the applicant and Slade woke Slade’s mother by banging on the front door. The applicant said that something had happened to Dennis. She telephoned 000 and told the operator she had just found her husband dead. She said that the house appeared to have been ransacked.
Later, when she spoke to police who were engaged in the investigation, she told them that she and Slade had gone to the Bussons’ house and that they had come across the body.
At about 8.10 pm on Thursday, 29 January 2004, the applicant gave a statement to police at the Port Adelaide Police Station. She told the police about her relationship with Slade and that she had told the deceased about that relationship. She told the police that she had met Slade earlier that day and that the deceased had seen her and Slade at Wee Willie’s Tavern. She said that she had seen the deceased later that afternoon after his treatment. She said that at about 6 pm she had driven to Slade’s house and they had gone to the Largs Pier Hotel. They had left the hotel at about 9 pm. She said that they then went to her home and Slade told the deceased that she wanted to live with the applicant. The deceased became upset. Shortly thereafter, they left and went to Slade’s home. They remained there for some time and then walked back to her home. She told the police that she went into the bedroom and saw the deceased covered in blood. The place appeared to have been ransacked. She said that she and Slade then returned to Slade’s parents’ home. The police were called.
Slade spoke to police on 29 January 2004 and gave them a similar story. He said that he and the applicant were at his parents’ home when the applicant said she wanted to check on the deceased. They walked to the Bussons’ house. He remained on the back porch. He heard the applicant scream. He went to the bedroom door and he saw the deceased lying on the bed with what looked like a major shotgun injury to his chest. He said he thought that the applicant had telephoned the police on her mobile telephone.
The two versions, although slightly different in detail, were that they had gone to the Bussons’ house and found him dead. Police seized Slade’s clothing. Later, tests determined that the deceased’s blood was found on various items of the clothing. The applicant also provided her clothing, which was tested, and no blood was found. The clothing that was tested was different from the clothing applicant had been wearing earlier that evening.
The applicant participated in a lengthy second interview, which was recorded on videotape, in which she maintained the version of events which she had earlier provided to the police.
The applicant spoke to the police again on 2 February 2004. She told the police that she had not been completely frank with them in her first statement, and that she had omitted to tell them that there had been an altercation involving herself, James Slade and Dennis Busson on the night leading up to the murder. She told the police that, after having been at the Largs Pier Hotel, she and Slade went to her home to speak to the deceased to clear the air with him. She told the police that there was a bit of pushing and shoving and a verbal altercation. She and Slade had then left and returned to Slade’s home where they remained until about 4 am. They then decided to go back and check on Busson. It was then that they found him dead.
It was the prosecution case that, shortly after the interview on 2 February 2004, the applicant and Slade had moved in together to live in the Bussons’ house. They resided there until 5 March 2004 when both were arrested and charged with murder.
The applicant requested a further interview on 7 March 2004 in which she changed her version of events and told police that she had been asleep at Slade’s home when Slade had woken her to tell her that Busson was dead. She said that she went with Slade to the Bussons’ house, where she found the deceased dead on the bed. The prosecution case was that this was an attempt by the applicant to shift the blame on to Slade.
Slade was interviewed by police on two occasions. He changed his version of events. One of the matters that changed was that he told the police that he and the applicant had gone to the Bussons’ house after they had been at the Largs Pier Hotel. The applicant had wanted to collect some clothing. She also wanted the deceased to meet Slade. Slade said there was an altercation and the deceased threatened “to send someone around to Slade’s house”. Slade was annoyed with the applicant because she had led him to believe that the deceased wanted to meet him, which turned out to be far from the truth.
A post-mortem examination was conducted by Dr Cala. Dr Cala formed the opinion that there were wounds of two distinct sizes and shapes. Two weapons, a sharp single-edged knife, and what appeared to be scissors, had been used. There were fifty six wounds in all. Some had the appearance of being large, deep and penetrating while others were different in shape and more shallow. The most serious wounds had been caused by the knife. He also observed some bruising to the left wrist of the deceased, consistent with the deceased having been restrained by the wrist at some point during the attack. He was of the opinion that the wounds had been sustained in a single attack. The prosecution case was that two people had been involved.
The applicant and Slade were arrested and charged with murder on 5 March 2004. On 24 November 2004, they were committed for trial in the Supreme Court on one count of murder. On 31 October 2005, their joint trial commenced before Besanko J. Both the applicant and Slade challenged the admissibility of the records of interview conducted with the police. It is not necessary for these reasons to detail the specific objections of Slade. I will deal with the applicant’s objections later in my reasons. On 9 November 2005, Besanko J ruled that the statements made by Slade to the police were admissible, subject to some minor exclusions. Slade then asked to be re-arraigned and he pleaded guilty.
Counsel for Slade sought an adjournment for discussions to take place with the Director of Public Prosecutions (“DPP”) to enable Slade to provide a statement about the circumstances of the commission of the offence. The DPP sought time to consider Slade’s statement and decide whether Slade might be called as a witness in the trial of the applicant.
On 11 November 2005 Slade was interviewed. He was asked to explain what happened on the night Mr Busson was murdered. He told the police that he and the applicant were in bed at his home at about 12.30 am. He got up and smoked some marijuana and drank some “Bundy”. He said he became angry about the incident earlier that evening when the deceased had pushed him into a television set. He decided to confront the deceased.
He walked to the Bussons’ house, entered it and confronted the deceased. A heated argument started. During the argument he went to the kitchen, took a knife, walked back into the bedroom and stabbed the deceased eight or nine times across the top of the chest. When asked about some of the wounds, particularly to the deceased’s neck, he denied inflicting those wounds. He said that then he went back to his home, woke up the applicant and told her that he had stabbed the deceased. He still had the knife. The applicant grabbed the knife and drove off in the direction of her house. She returned and suggested they walk back to the house and make it appear as if they had just found the deceased. They returned to the deceased’s home. He remained on the veranda whilst the applicant went inside. He said he went to the bedroom and observed that the bedroom had been ransacked. He noticed some additional wounds to the deceased over and above those he had inflicted. The applicant said to him that it would make him look better, as though there had been a robbery. The applicant also said to him that he should tell the police that he had found the deceased. The applicant then returned to Slade’s house and telephoned 000. Slade said that he and the applicant returned to the Bussons’ house. By that time, the ambulance and the police had arrived.
On 15 November 2005, the matter was again listed before Besanko J. The Court was informed that further investigations needed to take place, and a further interview of Slade was necessary to clarify certain matters. The matter was further adjourned. That interview was conducted with Slade on 23 November 2005.
On 3 February 2006, the DPP entered a nolle prosequi in relation to the charge of murder against the applicant. A new information was filed charging the applicant with assist offender and attempting to pervert the course of justice. Counsel for the DPP indicated that Slade would be a prosecution witness and requested that he be sentenced prior to the trial of the applicant. The matter was adjourned to 8 February 2006 when the applicant pleaded not guilty to both charges.
On 20 February 2006, Anderson J began to hear sentencing submissions in respect of Slade. Mr Pearce for the DPP outlined the prosecution case against Slade. Anderson J received the victim impact statements and adjourned the matter to 1 March 2006 for Slade’s counsel to make submissions.
In the course of outlining the facts, Mr Pearce advised the Court that Slade had told the police that he had inflicted a number of the stab wounds and that the applicant had inflicted others. On his version of events, the deceased may well have been dead by the time that the applicant had inflicted the stab wounds. Mr Pearce informed Anderson J that the prosecution had still not finally determined whether or not the prosecution would accept Slade’s version of events as truthful.
On 1 March 2006, counsel for Slade made submissions. His submissions about the events surrounding the killing of the deceased were consistent with Slade’s statements to the police after his plea of guilty. Anderson J reserved his decision in relation to the fixing of a non-parole period.
Subsequently, Anderson J communicated with counsel that he had concerns about the factual basis put forward on behalf of Slade. The matter was re-listed on 1 June 2006 when Anderson J indicated that he was troubled by the submission that there was no real motive for Slade to have killed the deceased. The Judge was also concerned about the lack of explanation about what had happened to the knife and Slade’s claim of remorse. The Judge also expressed concern about the number of wounds inflicted on the deceased by Slade and the number of wounds inflicted by the applicant.
Slade gave evidence. He was cross-examined. He agreed that there had been a plan between himself and the applicant to give a false story to the police in accordance with their original statements. He said that he had gone to the Bussons’ home in order to stir Busson up and rub his nose in the fact that the applicant was having a sexual relationship with Slade. He said that the two of them argued and, as he was leaving, he went to the kitchen and picked up the knife. He said that he returned to the bedroom with the knife in order to threaten the deceased. He made the decision on the spur of the moment. He was unable to explain why he plunged the knife into the deceased’s chest. He said the attack was not a frenzied attack. He stabbed the deceased about eight times. He said that, when he left the house, he thought the deceased was dead. He described his relationship with the applicant as a “holiday fling”. The case was adjourned for sentencing.
On the morning on which Anderson J was about to sentence Slade, Mr Pearce informed the Court that the DPP would not be calling Slade as a witness in the trial of the applicant. He said that the DPP had decided to re-lay the charge of murder against the applicant. An information had been laid on 6 June charging her with one count of murder. Ms McDonald had had conduct of the original trial. She had reviewed the transcript of evidence given by Slade and reviewed all the transcripts of hearings. The prosecutors had also undertaken further inquiries with Dr Cala. The DPP had determined that Slade was not a credible witness.
Stay of proceedings
On 9 June 2006, the applicant applied for a permanent stay of the information laid on 6 June 2006. That application was heard by Duggan J on 13 June 2006. On 16 June 2006, Duggan J refused the application. The applicant sought permission to appeal and an extension of time within which to appeal. Doyle CJ referred both applications to this Court.
The ground of appeal in respect of which an extension of time was sought are:
1. His Honour Justice Duggan erred in not permanently staying the information dated the 6^th June 2006 charging the applicant with murder as an abuse of the process of the Court as the DPP had actively put forward the basis for sentencing the accused Slade a basis inconsistent with the DPP case against the applicant.
Particulars
i.      The DPP had asked that Anderson J sentence the Slade on the basis that Slade had committed the offence without the applicant and was solely responsible for the death of the victim.
ii.     The DPP charged the applicant with murder on the basis that she and Slade murdered the victim jointly.
The power to stay proceedings due to an abuse of the court’s processes is an inherent power of the court.[1] The power is discretionary[2] and, as such, an appellate court will only interfere with its exercise when the decision is plainly wrong.
[1]    Williams v Spautz (1992) 174 CLR 509, 520; Walton v Gardiner (1993) 177 CLR 378, 393; Batistatos v RTA (NSW) (2006) 226 CLR 256, 263-4.
[2]    R v Carroll (2002) 213 CLR 635, 657; Batistatos v RTA (NSW) (2006) 226 CLR 256, 264.

Ms O’Connor, who appeared for the applicant, contended that the evidence that Slade had given during his sentencing hearing was consistent with his records of interview. She submitted that the Court should not sanction the prosecutor’s approach which, she said involved presenting a version of events to the Court inconsistent with the basis on which Slade was sentenced.
She relied on the decision in R v Mohi.[3] She contended that in that case, where police had given the applicant an undertaking that he would not be prosecuted, it was not the undertaking by itself that was the trigger for the stay. She submitted that in that case, as here, the prosecuting authorities had adopted inconsistent positions on whether the applicant would be charged or would be a witness in a case against others. Counsel also relied on the decision in R v Croydon Justices; Ex parte Dean.[4]
[3] (2000) 78 SASR 55.
[4] [1993] QB 769.
There are several factors which distinguish this case from Mohi,[5] and Croydon Justices.[6] First, the applicant in the present case was never given any assurance or undertaking that she would not be prosecuted. It cannot be said, therefore, that either the prosecuting or investigating authorities had made any assurance or had given any undertaking, either express or implicit, that the applicant would be immune from prosecution.
[5] R v Mohi (2000) 78 SASR 55.
[6] R v Croydon Justices; Ex parte Dean [1993] QB 769.
Secondly, from 5 March 2004, when the applicant and Slade had been charged with murder, it had always been the prosecution case that the applicant was involved in some capacity with the murder or the events surrounding it. The prosecution consistently asserted the applicant’s complicity in the crime, albeit to varying extents, and consistently intended to prosecute the applicant for her complicity in the offending.
Thirdly, there was no unfairness to the applicant. While unfairness to the applicant is not a precondition for a court to find that there has been an abuse of process, it is nevertheless a factor to which the court should have regard in considering whether there has been such an abuse.[7] No unfairness is alleged in the present case. The applicant did not contend, for instance, that she had made statements to the police in reliance upon the understanding that she would not be charged with an offence, or that she would be charged with a lesser offence.
[7] R v Mohi (2000) 78 SASR 55, 61; see also Walton v Gardiner (1993) 177 CLR 378, 395-6.
Ms O’Connor further submitted that the murder charge against the applicant was reinstated the day before Slade was sentenced and that, at the sentencing, the prosecutor had merely advised the court that Slade would not be a witness in the applicant’s trial. She contended that the prosecutor did not tell the sentencing judge that the murder was being treated as a joint enterprise nor that the version of events on which the prosecutor sought to have Slade sentenced had changed in any way. In response, counsel for the respondent submitted that it was necessary to tell the court that Slade would no longer be giving evidence because the prosecutor had earlier told the court that Slade was entitled to credit for giving evidence at the applicant’s trial. He added that the fact that the applicant was being charged with murder was of no relevance to the factual basis on which Slade was sentenced. In any event, counsel submitted that it was clear to the sentencing judge that the position had changed. Little turns on this dispute, as the nature of the case against the applicant was of only peripheral relevance to Slade’s sentencing. It is also clear that the sentencing judge was aware that the prosecutor no longer regarded Slade’s account of the events as honest and reliable.
The submission pressed most strongly by Ms O’Connor in the appeal to this Court was that by prosecuting the applicant, the prosecutor was asserting a version of events that differed from what had been asserted when Slade was being sentenced, a version that had not been put to Slade during cross-examination.
Duggan J addressed in some detail the question whether there was an inconsistency between the version of events presented during the sentencing of Slade and that alleged against the applicant. At that stage, the applicant had not yet been tried. I make that observation because Ms O’Conner’s submission before this Court relied in part upon the case presented by the prosecutor at trial and, in particular, on the opening and closing addresses of the prosecutor. Clearly, Duggan J was not able to address in his reasons the particulars of the case against the applicant as expounded during the applicant’s trial.
Mr Hinton QC for the respondent contended that the decision not to accept Slade as a witness of truth, and to file the information charging the applicant with murder, could more accurately be characterised as arising from the prosecutor’s obligation continuously to review and assess a case as new information emerged. He submitted that the way in which the evidence emerged at Slade’s sentencing made it necessary for the prosecution to re-evaluate the evidence against the applicant. Viewed in that light, he submitted, it could not be said that the prosecutor had acted in a manner which would undermine public faith in the administration of justice.
The prosecution had consistently questioned the reliability of Slade’s account of the killing of Busson before and during the sentencing of Slade. It had done so at a directions hearing before the sentencing judge and on the hearing of an application for suppression order made for the purpose of ensuring that the applicant had a fair trial. In the course of sentencing submissions on 1 March 2006, the prosecution had again contended that Slade’s evidence was unreliable and had made it clear that it did not accept his version of the events. When the hearing resumed on 1 June 2006, the sentencing judge himself said that he had difficulties with some aspects of Slade’s account of the events.
Slade had admitted inflicting eight or nine stab wounds on the deceased. Yet, the evidence of the post mortem was that approximately 56 stab wounds had been inflicted during a single attack. Slade was cross-examined on that question but insisted that he inflicted only eight or nine stab wounds. Slade’s evidence was also inconsistent with the number of defensive wounds found on Busson’s arms and hands. In cross-examination, Slade admitted that, after the killing, he and the applicant had spoken about what they would tell the police and had agreed that they would say that the applicant had not been present during the killing but had walked into the house and had found Busson dead in the bedroom. Slade gave evidence that he had told the applicant what had happened, after which she had left him before returning more than half an hour later. He said they had then both returned to the Bussons’ house. He saw the bedroom had been ransacked in that drawers had been pulled out of cupboards in the bedroom and clothing was lying everywhere. He also noticed that there were cuts on the left side of Busson’s neck. Slade was unable to explain how the deceased came to have those wounds.
In the result, not only did inconsistencies exist between Slade’s record of interview and the account he had given in his evidence to the sentencing judge but there are aspects of his evidence that were troubling even without the benefit of having seen him give his evidence.
In closing submissions, the prosecutor drew attention to the evidence that Slade was affected by drugs and alcohol on the night in question, and suggested that this might have affected the accuracy of his recollections. This was in the context of considering why it might be that Slade was insistent that he had inflicted only eight or nine wounds when clearly more had been inflicted. The sentencing judge then suggested:[8]
[8]    T 57 – 8.
His Honour:         He could have two possible motivations if he was conscious in minimising the number of wounds he inflicted. The first would be to say that June Busson inflicted most of them, but that doesn’t seem to make sense because he admits that his wounds caused death. So that doesn’t seem to make sense.
Mr Pearce: If she inflicted them they were inflicted post-mortem. That is possible because of course she goes, on his version, back into the house after he has killed Dennis.
His Honour:         Or the other reason, which stands out from just looking at it objectively, it seems to me to be that he’s saying that to protect her, if they were in fact both involved in inflicting the wounds at the same time.
Mr Pearce:         Well, that’s not the prosecution case.
His Honour:         No, I know it’s not. But given his admission in his evidence and indeed I think to the police as to the effect of however many of the initial wounds he inflicted, there just doesn’t seem any rhyme or reason in that explanation, so maybe you’re right, maybe he’s just wrong and has forgotten and maybe he was more frenzied than he admits, which is understandable.
Mr Pearce:         That’s a best possible position for Mr Slade.
The sentencing judge concluded that he could not accept Slade’s version of events in its entirety. He rejected some aspects of it, and on some matters he found that he was unable to conclude where the truth lay:
You have admitted to stabbing the deceased eight or nine times only. The obvious inference which I am asked to draw from your evidence and from the submissions made on your behalf is that it was Mrs Busson who inflicted the other wounds, at a time when you say she went back to her house with the knife you had already used in stabbing the deceased earlier. On your version, of course the deceased was well and truly dead by the time she went back.
…
You told me you did not go into a frenzy. In my opinion you are mistaken, and the fact is that you cannot recall the exact number of wounds you inflicted. This does not mean that you inflicted all of the wounds but I do not accept that you inflicted eight or nine of them. The different type of wounds and the likelihood that they were inflicted by another instrument forms no part of your version of events.
I do not know where the truth lies in relation to the involvement or otherwise of Mrs Busson but from your point of view I will sentence you on your version of events to me, except that, as I have already indicated, even on your version, those eight or nine stabbings killed the deceased.
…
You were involved in lengthy interviews with the police after you pleaded guilty following the voir dire hearing. In the second interview the police were attempting to clear up a number of inconsistencies with the version of events you gave to them when first interviewed. Some inconsistencies remain of concern to me in the way in which I should approach the submissions made on your behalf. Your evidence has assisted me in some respects. The details of the stabbing and the lack, on your version, of any discussion between you and Mrs Busson in relation to what happened to the knife are matters upon which I do not accept your evidence.
…
… I do not know where the truth lies but I find it difficult to accept that you were not both involved to some degree in this criminal enterprise.
…
I am not sure what your motivation is in the cooperation which you have provided to the authorities. On the one hand you may be cooperating to help yourself in an attempt to shift the blame to Mrs Busson. On the other hand you may be attempting to help her. It is impossible for me to say what your motive is. Whatever the case, I find that you have not provided the police with the full story, and therefore your cooperation must be viewed in that light.
It is clear, therefore, that doubts existed as to the accuracy and reliability of Slade’s recollection of the events. These doubts were expressed by the prosecutor and by the sentencing judge. In these circumstances, it is not surprising that Duggan J questioned the wisdom of the murder charge against the applicant being withdrawn, and of relying upon Slade as a witness of truth. Whatever misgivings the prosecutor may have had at that stage, it is clear that following the evidence given by Slade during his sentencing, the prosecution did not consider that it could present Slade as a witness of truth at the applicant’s trial.
Even if I were to accept that there were no significant inconsistencies between Slade’s records of interview and the account given in his evidence at sentencing, aspects of the evidence are nevertheless troubling, even without the benefit of having observed the witness. For example, Slade was adamant that he had only stabbed the victim eight or nine times, despite there being many more wounds to the body recorded during the post mortem, and despite Dr Cala’s evidence that all the wounds would have been inflicted during a single attack. He gave evidence that there were numerous respects in which the deceased’s body and bedroom were different between when he left after the stabbing and when he returned with the applicant. Slade was unable to explain how the deceased came to have wounds on the left side of his back. He agreed that he had discussed with the applicant the version of events they would recount to the police. His evidence was unusual in some respects, for example, during both examination and cross-examination, Slade spontaneously stated that he had never held the deceased down, nor grabbed his arms, when he had not been questioned on that subject.
In light of the obvious gaps and inconsistencies in Slade’s evidence, I do not think it can be said that the DPP sought to have Slade sentenced on a specific factual basis. It is true that the prosecutor disavowed any suggestion that the case against Slade was one of joint enterprise. I have set out above the exchange between the prosecutor and the sentencing judge in which that statement was made. However, that comment was made in the context of the sentencing judge speculating on why Slade might have sought to minimise the number of wounds he inflicted and suggesting that, if they had been involved together, Slade might be lying in order to protect her. The prosecutor adopted the sentencing judge’s alternative suggestion, which was that Slade was mistaken, or had forgotten, which the prosecutor described as “the best possible position for Mr Slade”.
For the purpose of sentencing Slade, the prosecutor was prepared to accept Slade’s version of events where it was most favourable to Slade to do so, and where his version of events accorded with other evidence. I understand that the disavowal of the joint enterprise scenario was a concession that Slade should not be sentenced on the basis that he had deliberately misled the court as to the applicant’s involvement in the crime. It was not a concession that the applicant was not involved on the prosecution case.
Duggan J considered that “a reading of Slade’s evidence supports the view that it was no longer appropriate for the prosecution to call him as a witness”. Duggan J noted that the prosecutor had challenged Slade on aspects of his version of events during cross-examination, and also observed that the sentencing Judge did not accept aspects of Slade’s evidence. Duggan J considered that once Slade had given evidence, the basis for entering a nolle prosequi in respect of the charge of murder “fell away”, to the extent that it relied upon Slade’s version of events.
Duggan J also took into account the fact that it was not part of the prosecution case against Slade that the applicant was involved (which I have set out above), but did not consider that those comments gave rise to any inconsistency in the Court’s approach. Duggan J concluded that the murder charge was reinstated for a “substantial reason”, and that allowing the charge to proceed would not erode public confidence in the justice system.
Duggan J had regard to the leading authorities on the subject, including Williams v Spautz,[9] and Jago v The District Court of New South Wales,[10] and there is no submission that His Honour erred in applying the appropriate legal test.
[9] (1992) 174 CLR 509.
[10] (1989) 168 CLR 23.
A stay of proceedings will only be granted in extreme circumstances.[11] I do not consider that Duggan J erred in refusing to grant a stay of proceedings. I would refuse leave to appeal on this ground, and I would refuse the application for an extension of time in relation to this ground.
[11] Williams v Spautz (1992) 174 CLR 509, 519, 529; Jago v District Court of New South Wales (1989) 168 CLR 23, 31.
Admission of interviews
Prior to the jury being empanelled in the joint trial before Besanko J, the applicant sought to have excluded evidence of a number of conversations between herself and police. These occurred on 29 January, 2 February and 7 March 2004. They were recorded on video camera. The application was, in the main, unsuccessful. It was renewed in the trial before Bleby J.
As noted earlier, the first interview occurred on the afternoon of the day of the deceased’s death and took place at the Port Adelaide Police Station, after police had invited her to attend there. Detective Hilliard of the Major Crime Task Force conducted the interview. At the outset she told the applicant that the police were treating her husband’s death as suspicious. She was told that police were seeking more information about the deceased’s relatives and that also they needed “to cover a few bits and pieces with you”. The applicant was twice advised that she was not obliged to answer any questions, but that her answers were to be recorded and might be given in evidence.
The second and third interviews occurred on 2 February. The first occurred at the request of the applicant and the second occurred during a search of her home. The fourth interview also came about as a result of the applicant’s request. The arguments as to the second, third and fourth interviews largely rested on the result of the application to have excluded the first interview, although there were some discrete arguments in relation to the fourth interview.
Besanko J conducted a voir dire hearing in which several police officers and the applicant herself gave evidence.
On that occasion, Mr Lyons, counsel then acting for the applicant, attacked the first and fourth interviews on the basis that they were not shown to be voluntary. Based on her evidence on the voir dire, it was suggested that had she been told by police that her own possible involvement in the killing was being investigated, she would not have answered. Further it was said that because she had taken a Valium tablet shortly before the interview she felt tired but, due to her respect for police authority, she felt compelled to answer questions.
In support of the request that the interviews be excluded on the basis that it would be unfair to use the statements against the applicant, it was put to Besanko J that the applicant was misled by police as to the purpose and ambit of the first interview and that she should have been told that she was a suspect. It was said that her answers were “unguarded”.
Counsel for the applicant put to Besanko J that, if the first interview were excluded, then the subsequent ones should necessarily be excluded, that submission being based on the argument that but for the occurrence of the first conversation, the later ones would not have occurred. At the conclusion of the voir dire hearing Besanko J ruled that apart from some passages in the fourth interview, all the questions and answers sought to be led by the prosecution would be admitted. His Honour gave detailed reasons for his findings.
The applicant’s trial before Bleby J commenced on 20 March 2007. The same counsel then acting, Mr Lyons, renewed the application for exclusion of the interviews. He indicated that he was relying on the same grounds as had been agitated before Besanko J. No new or additional circumstances or argument were relied upon. Mr Lyons’ central submission was that on 29 January, before interviewing the applicant, police should have advised her that they were making inquiries into her possible involvement into the murder of her husband, that is to say, that she was under suspicion. Counsel indicated that Ms Busson’s instructions were that she was unaware that her involvement was being investigated and that had she been told she was under suspicion she would have sought legal advice. It was said that the reference to clarifying a “few bits and pieces” belied the seriousness of her position and misled her into approaching the interview with less than appropriate care.

In response to the application Ms McDonald, for the DPP, submitted that a preliminary question fell to be determined, namely, whether the applicant was entitled to a voir dire. Counsel submitted that particularly having regard to the fact that the applicant had been cautioned (even though at that stage police claimed not to have a reasonable suspicion that she had committed any offence) no further or additional obligation fell upon police to advise that the applicant was under suspicion.
The principles guiding a judge when an application for a voir dire hearing is made were discussed by this Court in R v Bradshaw (1978) 18 SASR 83. There is no need to examine those principles in any detail. The important point is that when an application for a voir dire hearing is made, counsel must satisfy the judge – either by pointing to material on the papers, or by giving an assurance as to evidence that would be called – that a real question as to the voluntariness of the interview is raised or, alternatively, must point to grounds which would enliven either of the discretions to exclude the statements on the basis of illegality or impropriety, or to exclude them because, for any reason, it would be unfair to use them.
In the instant case, nothing turns on the decision of Bleby J not to grant a voir dire hearing, because neither party wished to present material additional to that already before the judge. The transcript of the previous voir dire evidence was before the judge. Unless the position was reached where issues of credit fell to be determined, there was no need to hear the evidence.
Bleby J heard argument as to whether or not the police should have, in addition to having cautioned the applicant, advised her that they suspected her of the murder. He referred to the relevant principles and the authorities, including Van Der Meer v The Queen (1988) 62 ALJR 656; R v Dolan (1992) 58 SASR 501; R v Murphy (2002) 83 SASR 574. He distinguished two authorities relied on by Mr Lyons, namely R v Hart, Bullock, Peterson & Hill (1977) 17 SASR 100; R v Fieldhouse (1977) 17 SASR 92. There can be no criticism of his Honour’s expression of the relevant principles. He determined, in my view correctly, that in this case there was no such obligation.
The circumstances in this case are distinguishable from Fieldhouse and Hart. In Fieldhouse, there were a number of factors, including the relatively slight value of the statement, the vagueness of the caution, the emotional state of the accused, the failure to fully inform the accused of his brother’s death, as well as the failure to inform the accused that the interview was in respect of possibly charging him with murder, which led the trial Judge to exercise his discretion to exclude the record of interview. In Hart, the interviewee had already been charged with other offences, including assault, relating to the incident. She was not intelligent and did not appreciate the significance of the questions or the serious offences about which she was being interviewed. Further, the charge that was ultimately laid was not necessarily one which she would have contemplated.
The applicant in this case was aware that her husband had died and she was aware that the police were investigating his death. She was not misinformed or misled, nor could she have been under any illusion that the police were investigating the murder of her husband, and that they suspected that she might in some way have been involved or a party to that killing. The fact that the police did not inform her specifically that she was a suspect in the murder of her husband did not lead to any unfairness. Despite two cautions, she continued to answer questions and continued to provide police with a story that she and Slade had agreed upon earlier. The applicant was cautioned on two occasions. The applicant continued to answer questions and was keen to give answers which subsequently proved, on her own admission, to be false but, at the time, were given in an effort to mislead the investigators. Her false answers were a significant item of circumstantial evidence from which the jury could conclude that she and Slade had acted together in killing the deceased. There was no basis to conclude that the interview was unfairly obtained.
The judge was in a position to, and did, view the video tape recordings of the interviews. He was able to draw his own conclusions as to the voluntariness of the interviews. The judge was prepared to assume for the purpose of the argument – against the prosecution position – that, at the time when police cautioned the applicant, they held a reasonable suspicion that she had committed the offence. Even on the basis of that assumption, he was not prepared to find that the first interview was other than voluntary or that it should be excluded as an exercise of discretion.
Most of the grounds of appeal sought to be agitated in this court raising the issue of admission of the interviews focused on the decisions of Besanko J. It was suggested in argument by counsel for the applicant that Bleby J simply adopted the rulings of Besanko J. That submission is wholly erroneous. The judge based his decision on the question of voluntariness on his own viewing of the video tape evidence. He determined that the argument as to the obligation to advise the applicant that she was a suspect was incorrect. Because his Honour was prepared to assume the correctness of the assertions contained within the applicant’s earlier evidence, as put to him by counsel, and to assume that the police cautioned the applicant because she was reasonably suspected of having committed the murder, there was no need to descend to evidence. He evaluated the other arguments of the applicant and declined to exercise his discretion.
The only basis upon which it could be said that Bleby J’s reliance on the ruling of Besanko J went beyond the matter of history, is found in a passage at the end of the eight pages of written reasons which the judge gave. His Honour said:
Given the previous ruling by Besanko J and the reasons that he gave for that ruling, and on the assumption I have made that the police at the relevant time did suspect that the accused was involved, I consider that not only was the interview voluntary, in the relevant sense, on the part of the accused, but was conducted entirely fairly to the accused.
The application for a voir dire is refused. The record of interview will be admitted.
Findings as to voluntariness and the only disputed matter of law had been made earlier in the reasons. But in the paragraph just set out I understand the judge to have said that the matter had been fully agitated before Besanko J and that, even if the only contentious issue were determined in the applicant’s favour, it could still not be said that there was anything unfair about the police conduct in the interview. That last conclusion of course goes further than any that need be made on a voir dire hearing. As the judge had earlier pointed out, where questions of the fairness discretion were concerned, an applicant would need to demonstrate on the balance of probabilities that it would be unfair to use the statements against the applicant. I interpret the judge’s above statement as an emphatic rejection of the arguments put forward to him.
Accordingly I consider that insofar as the grounds of appeal concern complaints relating to decisions made by Justice Besanko, they are incompetent. For the reasons I have given, I consider that no error has been demonstrated in the approach of Bleby J to the application for exclusion of the interviews and leave to appeal against his decision should be refused.
Before leaving this topic I would make a further observation. In considering the applicant’s challenge to rulings made by Bleby J upon the admissibility of conversations between police and the applicant it has not been necessary to do other than apply principles established in earlier authorities. On the question of the voluntariness of the interviews, no challenge was mounted to the correctness of principles applied either by Besanko J or by Bleby J. I would not wish it to be assumed that the arguments made by counsel before us to the effect that the applicant’s tiredness, ingestion of Valium, or a personal belief that she was obliged to answer questions based on her deference to authority, would necessarily raise any question of voluntariness. I would need to be persuaded that this was so. If no such issue was raised then, to the extent that either judge characterised one of the issues before them in that way, it can only have advantaged the applicant, since the burden of proof on that issue is on the prosecution.
The summing up left the jury with an incomplete picture
At the commencement of the trial, the trial Judge told the jury that Slade had pleaded guilty to the murder of Dennis Busson. Although that fact alone cannot be relevant to the jury’s consideration of the applicant’s guilt or innocence, the jury may well have speculated about what had happened in Slade’s case. The Judge, having determined to inform them of Slade’s plea of guilty, directed them that they could not use the fact of his guilty plea as relevant to their consideration of the applicant’s guilt. The applicant’s complaint is that the jury was given incomplete and, therefore, potentially misleading information about Slade’s involvement in the death of the deceased. She says that, although they were informed that Slade had pleaded guilty, they were not informed of the complete circumstances relating to his plea. It is difficult to understand the submission. The applicant gave evidence about Slade’s role. The only other way in which evidence about Slade’s involvement in the crime could have been given to the jury was if Slade had been called as a witness.
The case for the prosecution was that the applicant and Slade were involved in a joint enterprise to murder the deceased. The Crown contended that Slade and the applicant had agreed to create a false story and that the statements to police which I have earlier referred were made in furtherance of that agreement.
The trial Judge referred to the two statements. He directed the jury in the following terms:
Then there is put as evidence of collusion, and hence of an arrangement to kill or cause grievous bodily harm, the comparison of the accused’s statement to Detective Ralph, Exhibit P32, and James Slade’s almost contemporaneous statement to Detective Anderson, Exhibit P54. Both tell the same story about going back to the house together for the first time and finding the body of the deceased, and not saying anything about being at Wee Willie’s. But in this context I remind you again of the omission in James Slade’s statement of anything about going back to 4 Critten Avenue at all after the Largs Pier Hotel. That might suggest, if anything, a lack of collusion.[12]
The trial Judge reminded the jury of the applicant’s statement that she was asleep and it was only after she was woken by Slade that she was taken to the house and saw the deceased. She admitted having told lies to the police, but she had said that she did so to cover for Slade who she then believed could not possibly have killed the deceased. She said that, when she had lied to police about her and Slade’s involvement, she was protecting a person she thought could not have killed the deceased.
[12] AB 234 [299].
In respect of Slade’s plea of guilty, the trial Judge directed the jury as follows:
The second matter I wanted to talk about in general terms relates to James Slade’s plea of guilty and really what you cannot do with it.
You have been told that James Slade has pleaded guilty to the murder of Dennis Busson. The effect of that was that there was no trial, and that he formally admitted all the elements of murder. However, you must not treat that as having any bearing on or as tending to prove that June Busson is also guilty of murder.
You see, people plead guilty to crimes for a variety of different reasons. Sometimes the person might, for good reason, even plead guilty to a crime they did not commit. You would be aware recently of speculation in the media about what motivated David Hicks to plead guilty and whether it was out of a genuine belief and understanding that he committed the crimes as alleged.
I told you that the crime of murder may be committed in a number of ways. There may have been one person who carried out the act of killing and who had the relevant intention to kill and inflict grievous bodily harm. The person may be party to an agreement, but the killing may be done by someone else. The person may be guilty by aiding and abetting someone else to commit the crime of murder. If you think about it, and assuming for the moment that it was a genuine admission by James Slade of all the elements of murder, you do not know what Mr Slade was admitting by way of his part in the murder, by his plea of guilty. He may have been admitting it was all his doing without assistance. He may have been admitting that he was party to a joint enterprise. If he was, we do not know what part in that joint enterprise he was admitting to have played. He may have been admitting in some way that we do not know that he aided and abetted June Busson, because the evidence of blood staining on his clothing might suggest that he was certainly present, and he could have been there as an aider and abetter. He maybe even had some other reason for pleading guilty. His plea of guilty says nothing about whether any of the elements of murder are proved against the accused. It is those elements which you must concentrate on in this case.
You must not use Mr Slade’s plea of guilty as some sort of makeweight in the case against June Busson. You cannot reason that, because he has admitted to murder on his part and because they were intimately involved in a close personal relationship, she too must have taken part in the murder as well. Mind you, the fact that they were together that night and that you might conclude that he was involved in some way in the killing are relevant bits of circumstantial evidence but you cannot reason that just because he was involved in some way, therefore she must have been also.
What you must do is examine carefully the evidence against June Busson and decide, independently of James Slade’s plea, whether the prosecution has proved beyond reasonable doubt that June Busson is guilty of the murder in one of the ways I have described to you.[13]
The trial Judge’s direction was correct. The fact that Slade had pleaded guilty was not relevant to nor did it have any bearing on whether the applicant was guilty. The trial Judge’s direction that people plead guilty to crimes for a variety of different reasons and the plea which is entered may be acted upon, even if the person entering it is not, in truth, guilty of the offence was correct.[14] It was a balanced direction and fair to the applicant.
[13] AB 226-7 [245] – [250].
[14] See R v Childs [2007] SASC 195, [45] - [46].
I would therefore reject this ground of appeal.
Post offence conduct
The third ground of appeal is that the trial Judge failed adequately to direct the jury about the evidence of the post-offence conduct of the applicant.
The prosecution case was one of joint enterprise. It was the prosecution case that the applicant and Slade had formed a close relationship. The case was that both the appellant and Slade wanted to be free of the deceased. The case against the applicant was circumstantial. The evidence relied upon, from which the jury was invited to infer that the applicant was a party to the murder, included evidence of motive, the flawed relationship with the deceased, the relationship with Slade, evidence of collusion between Slade and the applicant and the applicant’s post-offence conduct, including false statements she made to police.
The trial Judge directed the jury that the prosecution case included evidence that the applicant had set about a course of conduct to conceal her connection with the killing of the deceased by deceiving, misleading and lying to various people, including the police. He reminded the jury that the applicant admitted lying to Detective Hilliard on 29 January and 2 February and again on 7 March. The trial Judge said:
You will remember the major omissions in her interview with Detective Hilliard, the fact that she never mentioned being at Wee Willie’s, that initially there was no mention of any altercation between James and Dennis, that she and James were awake all night and both decided to go around and see how Dennis was and found him dead together.
In the 2 February record of interview she told Detective Hilliard about the altercation but not about the phone line being cut or the missing telephone, nor did she tell her about falling asleep at James’s place. When asked by Detective Hilliard she said ‘There isn’t anything else’.
In the 7 March record of interview she said she did go to sleep at James’s place and was woken up by him saying that Dennis was dead.
It is in that interview that she happened to mention the cutting of the phone line, as it were, by accident, and that Dennis had pushed James into the television, not as on the 2 February interview, that Dennis had pushed the television into James.
Not only were there those admitted lies and inconsistencies, but there are a whole lot of inconsistencies which you may think were exposed by Ms McDonald during the course of her cross-examination: the changes in detail from who drove the car around to Critten Avenue from the Largs Pier Hotel, whose idea it was to go and see Dennis on the way back from the hotel, Joan and Kevin Slade having gone to bed or still having been up, and as to who had the keys to the house, I won’t repeat many of the other inconsistencies exposed by Ms McDonald, but you will need to compare the various statements between themselves and, of coursed, with what the accused said in evidence.
Sometimes the conduct of a person after a crime that has been committed can provide proof that he or she is the culprit. Whether you draw that inference in this case is a matter for you and you will remember my directions to you that you cannot draw an inference of guilt beyond reasonable doubt if there is some explanation consistent with innocence which cannot be excluded.
However, I do need to say a bit more about lies. If an accused tells a lie in her evidence, then the effect is as if she has given no evidence at all on that ponit. Let me give you an illustration: if you were to conclude that the accused told you a lie when she said that she and James went to see Dennis Busson at Critten Avenue after leaving the Largs Pier Hotel, or if you were to conclude that the whispered conversation in the carport between the accused and James Slade never occurred, then the effect in relation to both of those things is as if she had given no evidence about them at all. There was no other evidence about that so you would conclude that those events didn’t occur.[15]
At that stage, the Judge adjourned because a juror was unwell. On the following morning, he reminded the jury of the directions he had given the afternoon before. He invited the jury to compare the various inconsistent statements of the applicant with her evidence. He reminded the jury that, just because a person has changed their account, it does not necessary establish that they have committed the offence. He then directed the jury as follows:
There is something more I need to say about lies. Lies, including lies told out of court to other people, including the police, may obviously effect [sic] the credibility of the accused as a witness in your eyes, just as lies told in the witness box may affect the credibility of the accused as a witness, so you might be less willing to accept her evidence about other matters. However, ordinarily a lie by the accused is not, in itself, evidence of guilt. In giving those directions, I am not saying anything about what conclusion you should reach about whether the admitted lies told by the accused effects [sic] your conclusion on her credibility or her reliability, her honesty as a witness. That is a matter for you. But you must not reason that because the accused has told lies she must therefore be guilty of the charge of murder. To do so would be using lies impermissibly.
The prosecution case is that the lies told by the accused are merely part of her conduct in trying to deflect any suggestion that she might have been involved in the murder, and must be considered as part of her conduct after the killing as circumstantial evidence pointing to her involvement. The prosecution says that that conduct, along with other facts and circumstances, will have to be considered by you to see if you can safely draw the inference that the accused committed this murder or was party to an arrangement to do so.
If you are satisfied that she did tell those lies and that she so conducted herself in order to minimise any suspicion that she was at 4 Critten Avenue when the murder was committed, you will have to decide whether the accused was giving false information in order to mislead and deceive various people and to direct others, including the police, in a direction away from her in order to conceal her involvement in the murder, or whether it was for some other reason.
The defence would say that the accused did tell lies, she did mislead various people, including the police, not because she was involved in the murder and trying to minimise her involvement in the eyes of the police, but because at various times she was shocked, scared, confused or at other times wanting to protect James Slade, who she believed had taken no part in the murder, or that, being innocent herself, she was trying to deflect police inquiries away from herself as a suspect. You see, there are many reasons why people might tell lies. I will say more about those possibilities when I come to consider the defence case.[16]
Counsel for the applicant first complains that the directions failed adequately to direct the jury that if they concluded that Slade had lied, they could not use the fact that he had lied and his plea of guilty to support a conclusion that the applicant was guilty. I reject that submission. The trial Judge specifically directed the jury that the fact that Slade had pleaded guilty could not be used or be regarded as having any bearing or tending to prove the applicant was also guilty of murder. He directed the jury that they must examine the evidence against the applicant absent and independently of Slade’s plea of guilty.
[15] AB 220-1, [198] – [205].
[16] AB 225-6, [241] – [244].

As to the statement of Slade made to the police,[17] the trial Judge directed the jury that the statement could not be relied upon to prove what had occurred that night. The use which could be made of it was to demonstrate collusion between the applicant and Slade to mislead the investigators about the events earlier that night. The prosecution case was that this was powerful evidence tending to show an arrangement between them to murder the deceased. The trial Judge pointed out to the jury that whether they drew that inference was for them. He also pointed out inconsistencies in the accounts given by Slade and by the applicant to the police. Later in his summing up, he told the jury that they could only draw inferences against the applicant if there was no reasonable explanation consistent with the applicant’s innocence.
[17] Exhibit P54.
The directions given by the trial Judge were sufficient. The initial statements given to the police by the applicant and by Slade were admitted by the applicant to have been untrue. The statement made by Slade could never be evidence of what had occurred on the night in question. The relevance of Slade’s statement was that it was open to the jury to conclude that the applicant and Slade had predetermined to give a false account to the police. If the jury so concluded, that was circumstantial evidence from which the jury could conclude that the applicant and Slade had been involved in a joint enterprise to murder the deceased. The trial Judge correctly directed the jury upon the use that could be made of the statement.
The applicant further complains that the trial Judge failed adequately to direct the jury that if they concluded the applicant lied, it did not follow that she was necessarily guilty. She may have lied for reasons other than her complicity in the offence of murder. She might have lied in an attempt to protect Slade or an attempt to avoid being charged with assisting Slade. Neither the prosecutor nor the trial Judge suggested to the jury that the lies told by the applicant were, of themselves, evidence of the applicant’s consciousness of guilt. It is clear from that part of the direction quote above, that the direction was entirely adequate and that the applicant’s submission is without foundation. The directions about lies were that they were part of the evidence to which the jury was entitled to have regard in determining whether the applicant was a party to the murder by Slade of the deceased.
The directions correctly summarise the respective cases for the prosecution and for the defence. The Judge made it clear that admitted untruths of the applicant were no more than part of the circumstantial case against her. The jury was properly directed as to the use they could make of it.
Unsafe and unsatisfactory verdict
The final ground of appeal was that the verdict was unsatisfactory and against the weight of evidence. The ground depends upon the argument that the jury should have been informed about the basis of Slade’s plea of guilty and the different versions of events given by Slade to the police and to the Court after he pleaded guilty. For the reasons already expressed, there is no substance in this ground.
A further particular of this ground of appeal is that there was no direct evidence of the applicant’s presence at the scene at the time the fatal blows were struck and that it could not be excluded as a reasonable possibility that the applicant had assisted Slade after the murder, but had not been a party to the murder. No argument was advanced in support of this particular. There is no substance in the complaint. The issue was clearly left to the jury. There was sufficient evidence on which the jury could reject that possibility and conclude, as they did, that the applicant was a participant in the murder.
For the reasons expressed, I would refuse permission to appeal in respect of all grounds. I would refuse the application for an extension of time within which to appeal because the applicant has not demonstrated that the ground for which an extension of time is sought is reasonably arguable.
VANSTONE J: I agree with the substance of the reasons of Sulan J. I too would refuse permission to appeal.