R v Calway

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 234 of 2003

THE QUEEN
	v.
JULIE MAREE CALWAY

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JUDGES:	EAMES and NETTLE, JJ.A. and HOLLINGWORTH, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 August 2005
DATE OF JUDGMENT:	18 November 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 266

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Criminal law – Murder – Provocation – Defence not left to jury – Accused claimed memory loss of events at time of killing – Basis for defence purely speculative – Held trial judge did not err in refusing to leave provocation to jury.

Criminal law – Murder – Consciousness of guilt – Crown relied on accused’s evidence of lack of memory as lie demonstrating consciousness of guilt – Whether open to jury to conclude denial of memory was a lie.

Criminal law – Evidence – Role of prosecutor – Cross-examination of accused as to feigned memory loss – Psychiatrist’s and psychologist’s reports held by Crown – Forensic decision by defence not to call expert witnesses – No miscarriage of justice.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mrs C.M. Quin	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Applicant	Mr L.C. Carter	Victoria Legal Aid

EAMES, J.A.:

I have had the benefit of reading in draft the judgment of Hollingworth, A.J.A. and I respectfully agree with her Honour’s reasons in concluding that grounds 1 and 2 have not been made out. I also agree with her Honour that proposed grounds 3 and 4 would not succeed if leave was granted to add them, but I did not reach that conclusion as to those grounds without some hesitation, and it is appropriate that I state my own reasons for rejecting them.

It is convenient to discuss the two proposed grounds together.

Under proposed ground 3 the first question is whether it was open to the prosecution to contend that the denial of memory was a lie, at all. The lie was identified by the prosecutor in discussions with the judge as being, “I don’t remember what happened that day”. That lie, he submitted, supported the inferences that she was conscious of the facts that she was present at the scene, had caused the death and did so with the intent for murder.

It was unfortunate, in my view, that the prosecutor chose to rely on consciousness of guilt by reason of the applicant’s professed lack of memory. It is a difficult concept at the best of times and one fraught with the potential to derail a trial. In insisting on relying on consciousness of guilt the prosecutor told the judge that he did so to prove three matters, two of which were not in fact disputed in the trial. Neither defence counsel nor the applicant disputed that the applicant had been present at the time of the killing. Furthermore, defence counsel[1] did not challenge the fact that it was the applicant who had killed the victim. That being so, of the three material matters identified in submissions to the judge as being established by virtue of a lie told in consciousness of guilt - namely, presence at the scene, causing the death and murderous intent - only the last factor was in dispute, and only then if the defence of self-defence failed.
[1]When asked in cross-examination if she had any doubt that she killed the victim, the applicant said that she had no memory of that day.

Neither in his submission to the judge when he sought to justify his change of course in now relying on consciousness of guilt, nor in the final address that followed, did the prosecutor expressly rely on the lie as proving that the applicant was not acting in self-defence. To the jury, his express reliance on the lie was confined to the contention that the lie reflected consciousness that to admit having a memory of the events would involve admitting that she killed him and did so with murderous intent. Nonetheless, although the use of the lie was, in terms, confined in that way, the prosecution address would have invited the jury to conclude that if it was a deliberate lie it also betrayed consciousness that she had not been acting in self defence, and the directions of the trial judge reflected that he so understood the Crown case.

In support of these new grounds Mr Carter submitted that the Crown could not contend that the denial of memory was a lie, at all. In Edwards v. the Queen[2] Deane, Dawson and Gaudron, JJ, held:

“Telling an untruth inadvertently cannot be indicative of guilt. And the lie must relate to a material issue because the telling of it must be explicable only on the basis that the truth would implicate the accused in the offence with which he is charged.”

[2](1993) 178 C.L.R. 193, at 209.

In the passages of cross-examination of the applicant which Hollingworth, A.J.A. has set out[3] the prosecutor did not put it directly to the applicant that her denial of memory of the events was a deliberate lie told because she was conscious of her guilt of the crime. I highlight the last two questions and answers in the passage quoted by Hollingworth, A.J.A.:

“So whatever I ask you about that day, the answer is going to be the same isn’t it, ‘I don’t know, I don’t know’? - - - I don’t have any memory of that day, no.
See, I suggest to you that that’s your way of coping with what you have done? - - - No”.

[3]See [76] below, reproduced in part at [13] in my judgment.

If a person had no memory of an event by reason of the intervention of an unconscious coping mechanism that situation would be entirely consistent with the denial being a truthful statement or, at worst, with it constituting, merely, “telling an untruth inadvertently”. Given the explanation for the applicant’s denial of memory which the prosecutor himself proffered in cross-examination as being the truth of the matter it is difficult to understand how the prosecutor could rely on the denial as constituting a lie told in consciousness of guilt. Indeed, defence counsel made that point to the judge. It might be said, however, that although the prosecutor did not put this directly to the applicant both she and the jury would have understood that by his assertion in cross-examination concerning the applicant’s “coping” response the prosecutor was not suggesting that it was an unconscious process, but, rather, that it amounted to a deliberate and conscious refusal to confront what she knew to be the truth. The judge’s directions concerning consciousness of guilt assumed that to be the Crown case. His Honour said that the Crown contended that it was “a deliberate lie” to say, “I have no memory of those events”, and that it was a lie told to avoid being cross-examined as to the events.

It was immediately before final addresses commenced that the prosecutor announced that he intended to rely on the denial of memory as constituting a lie in consciousness of guilt. Before the trial commenced he had left open that possible use of the lie, but had indicated that it was unlikely that he would seek to make use of the lie in that way. Defence counsel strongly protested that having regard to the contents of the reports of psychiatrists Dr Gidley and Dr Bell and of the psychologist, Ms Quirk, it amounted to a “quasi” abuse of process for the Crown to alter its approach. He submitted that nothing had changed in the course of the trial to justify the change in position of the prosecutor. He submitted that Dr Bell, in particular, could have given evidence as to “the possible mechanism by which amnesia is caused or emerges” and whether it is more likely to happen under stress. He protested that the Crown had in its hand evidence that bore directly on that question.

Mr Carter submitted to this Court that it could not have been excluded that the failure of recollection was a genuine one, a product of an underlying psychological condition or of factors such as stress and alcoholism. Those alternative explanations for the lack of memory were given credibility, he suggested, by the reports obtained by the Crown from Dr Bell, Dr Gidley and from Ms Quirk. Mr Carter submitted that the judge ought to have ruled that in the face of that evidence the Crown could not make use of the suggested “lie” as demonstrating consciousness of guilt, because it was not open to the Crown to contend that it could exclude the reasonable possibility that it was not a lie.

As Tadgell J.A. held in R. v. De Marco[4], a feigned lack of memory of the circumstances in which a killing occurred could amount to a lie told in consciousness of guilt, amounting to an admission against interest that for the accused to admit having a recollection of what was done “could be inconsistent with a lack of intention to do it at the time it was done”. In the present case the primary defence was self-defence (in which case having an intention to kill or cause really serious bodily injury would not, of itself, be inconsistent with the defence) but the defence also raised alternative possibilities, including that the applicant had simply reacted in panic but had not formed an intention to kill or cause really serious injury. In either case, if the jury were satisfied that the applicant was lying in saying that she had no memory of the events that could constitute a lie told in consciousness of guilt, betraying an awareness that the killing was done with murderous intent and/or not in self-defence. Thus, although it seems to me to have been both unwise and unnecessary to introduce this concept into the case - especially when the intended purpose of any reliance on it was by no means certain - it was open to the Crown to seek to rely on the lie as demonstrating consciousness of guilt, rather than relying on it merely as damaging the credibility of the account given by the applicant.
[4]Unreported, Court of Appeal, 26 June 1997, at 13, Winneke, P. at 15 agreeing, and Charles, J.A. concurring with Tadgell, J.A.

In my view, therefore, Mr Carter’s first contention - that it was simply not open to the prosecution to contend, or for the jury to conclude from the evidence that was before them, that the denial of recollection was a lie - can not be accepted. Whether her denial of memory was a lie was a matter for the jury. The mere fact that the prosecution had expert reports that raised the possibility of there being genuine explanations for her claimed lack of memory did not preclude the prosecution inviting the jury to conclude that the denial constituted a lie told in consciousness of guilt, but it was a factor which called for particular caution on the part of the prosecutor in the conduct of the trial. In that regard I was initially troubled as to the fairness of the cross-examination of the applicant, having regard to the contents of those reports. No ground of appeal expressly raised any complaint as to the cross-examination but the issue emerged in the course of submissions concerning the proposed new grounds of appeal.

It is convenient to highlight the following extract from the prosecutor’s cross-examination, although the full passage is repeated in the judgment of Hollingworth, A.J.A. After suggesting that the memory lapse was a very convenient way to avoid cross-examination, he asked:

“I suggest to you that you have adopted that approach? - - - No, I haven’t, no. I had memory lapses long before this started.
Of course, as far as the memory lapses are concerned, we’ve got your word for that and no-one else’s, right? - - -Well I have told my psychiatrist . . .
Well you might have told people - - -? . . . and my psychologist . . .
[objection and discussion omitted[5]]
“If your Honour pleases? - - - I have told my psychiatrist and psychologist at the time about memory losses, yes.
You are the sole source of those assertions, right? - - - They haven’t been called in, no.”
You are the sole source of the assertions that you suffered memory losses? - - -Yes.”

[5]The objection was as to the witness being interrupted in her answers.

Had the jury recourse only to those questions and answers they might well have concluded from that cross-examination that there was no support available for the applicant’s assertion that she had ever suffered memory loss or that there could be any innocent explanation for memory loss after the killing. In my view, those conclusions would have been quite unfair. I do not suggest that the prosecutor was intending to be unfair but it was potentially misleading for the jury to be told, baldly, that the applicant was “the sole source” of the claims of memory loss. On one level, of course, she was, but the reports held by the prosecutor suggested that she had made such complaints long before the killing and that her claim of memory loss was not inconsistent with her psychological condition and health problems.

The report by Dr Bell of 9 April 2003 referred, in turn, to the Alfred Hospital clinical file reports of the applicant’s assessment by a Crisis and Assessment and Treatment Team three days before the killing. An examining psychiatrist then recorded a history of two weeks of symptoms including “out of body” experiences and memory lapses. She told Dr Bell that she had been suffering black-outs every few weeks from the start of 2001 and he reported that both Dr Gidley and Ms Quirk “in their reports, on the basis of consultations with Ms Calway prior to the death of Michael Pitts, support her account”. Dr Bell considered that there was a “strong likelihood” that the applicant’s heavy consumption of alcohol contributed to her memory impairment but that it was “eminently possible” that it also constituted a degree of dissociative amnesia, which he said was a defensive psychological response by an individual “to cope with what otherwise might be overwhelmingly traumatic or stressful experiences”. It is unnecessary to elaborate on the two other reports. They were consistent with the assessment of Dr Bell.

The existence of that material rendered it particularly unfortunate that the suggestion was made in cross-examination that the applicant was denying memory of the events as a way of “coping”, especially if it was being implied that it was a ruse and had no support from any psychiatrist or psychologist.

However, the questions asked in cross-examination must be considered in the context of the evidence in chief of the applicant, and in light of what seems to have been the tactical approach which the applicant’s trial counsel was taking in the conduct of her defence. In response to her counsel’s questions the applicant described her ill health over the year or so prior to the killing. She said that she had been seeing her medical practitioner every two weeks for her “pills”, and saw her psychologist Ms Quirk once a week and her psychiatrist Dr Gidley every two or three weeks for her depression. She drank a lot and kept away from people and her memory in that period was not very good at all, she said. She did not know what effect it had when she combined her medication with alcohol. She was drinking a five litre cask of wine every two days. She slept all day.

She was asked what efforts she had made to search her memory for what happened on the day of the killing and said that after she had been taken into custody she was transferred to a hospital for psychiatric patients where she spent six months. While there, and in addition to receiving treatment for depression, efforts were made to see whether she could retrieve her memory of the day in question, but without success.

In re-examination defence counsel established that the applicant’s psychologist, Ms Quirk, had been called and answered questions at the committal, the substance of her evidence being not established and the applicant not adopting the propositions that the witness had been called by the Crown and had produced a report to the hearing.

In discussion before addresses commenced defence counsel contended that the lie ought not be regarded as capable of supporting an inference of guilt, having regard to the contents of the expert reports, but should be treated as being a credit issue only. He complained that it was unreasonable for the prosecutor to have cross-examined the applicant as he did when he had not called the witnesses, as the defence had requested, but counsel did not seek to re-open the defence case in order to call the witnesses.

In his final address defence counsel submitted to the jury that the applicant had been drinking to excess at this time, had been suffering memory black-outs, and was a depressive alcoholic in a “state of grief” over her mother’s death, and had been drinking heavily in the hours prior to and after the death.

Defence counsel did not either renew his request (made at the outset of the trial) for the prosecutor to call the expert witnesses, or seek leave to re-open the defence case in order to do so. The initial refusal of the prosecutor to call those witnesses was not inappropriate, particularly when their reports contained material that would be hearsay unless the applicant gave evidence, and defence counsel declined to say whether she would[6]. In my opinion, once the applicant gave evidence the prosecutor was entitled to test her assertion that she had no memory of the events at the time of the killing and he was not obliged to accept that if she had suffered memory loss in the past then she was suffering genuine memory loss on this occasion. Whilst the cross-examination, taken alone, might have implied that any claim of memory loss in the past or as to this day’s events was a recent invention, the jury had heard her claim to have reported such instances of memory loss to her psychologist and psychiatrist. If defence counsel wanted to put that beyond doubt he could have applied to call the witnesses. It is clear that there would have been no objection from the prosecutor had the defence called the witnesses. Nothing was said by defence counsel to suggest that one or all of the witnesses could not be brought to court without unnecessary delay.
[6]There was considerable discussion about the application of Ramsay v. Watson (1961) 108 C.L.R. 642 but as the joint judgment makes clear, at 649, evidence of statements made by a patient to an expert medical witness which provide the foundation for an expert opinion is admissible, but the opinion loses almost all value if the patient declines to confirm the statements in the witness box.

The complaints now made that, when regard was had to the contents of the expert reports, the approach taken by the prosecutor in cross-examination of the applicant and in relying on the lie in direct proof of guilt was unfair, must be assessed in the light of what were undoubtedly tactical decisions taken by counsel in the conduct of the defence case. It is clear that counsel had very good reason for conducting the case as he did and for not seeking to call the witnesses.

Defence counsel had led from the applicant her allegation that she had been assaulted by the deceased man on at least one occasion prior to his death and that she had been subject to crude sexual approaches from him on a number of occasions. Furthermore, in cross-examination she said she had told her psychologist of his sexual behaviour towards her. However, if the witnesses were called and were subject to cross-examination they were capable of giving evidence that was potentially damaging to the defence case.

Dr Gidley reported that the applicant told him she had assaulted the deceased on an earlier occasion and was angry with him. Ms Quirk also recorded statements by the applicant in the months prior to the killing in which she spoke of her anger towards the deceased and her admission that she assaulted him in July 2001. Dr Bell, too, reported anger towards the deceased, which pre-dated the killing.

Having led evidence from the applicant that provided an explanation for her memory loss and answered the suggestion that it was a recent invention it seems likely that defence counsel made a tactical decision that the witnesses were more likely to harm the applicant’s cause than help it. That would have been an entirely rational tactical decision to have made in the circumstances.

In those circumstances, the applicant has not been denied her right to a fair trial but has exercised that right[7]. The critical issue for this Court is whether a miscarriage of justice has been established[8] and complaint that an accused person has been denied a fair trial by virtue of rational decisions taken by competent counsel in pursuit of a tactical advantage will rarely be found to constitute a miscarriage of justice[9]. In this case I am satisfied that no miscarriage of justice arose by virtue of the cross-examination of the prosecutor or by his reliance on the lie as evidencing consciousness of guilt.
[7]See R. v. Miletic [1997] 1 V.R. 593, at 600-601.
[8]TKWJ v. The Queen (2002) 212 C.L.R. 124, at 149 [79] per McHugh, J.; Suresh v. The Queen (1998) 72 A.L.J.R. 769, at 780 [55], (1998) 153 ALR 145, at 160 [55] per Kirby, J.; Ali v. The Queen (2005) 79 A.L.J.R. 662, at 665 [18], (2005) 214 ALR 1, at 6 [18], per Hayne, J.
[9]See Miletic, at 597-598; Suresh, at 773 [23], 151 [23]; Ali, at 664 [7], 4 [7],

Proposed ground 3 could not succeed, and leave to add it to the grounds of appeal should be refused. Proposed ground 4 complained that the judge ought not have directed the jury that the professed lack of memory was capable of constituting a lie demonstrating consciousness of guilt. In the course of argument, complaint focussed on the failure of the judge to direct the jury as to alternative explanations for the professed lack of memory which had to be excluded, so it was said, before they could conclude that it was a lie told in consciousness of guilt of murder.

The judge directed the jury to consider whether there was “some innocent reason for the inability to remember”. His Honour did not then suggest any possible explanation but earlier in his directions he had employed the standard examples used in the charge book, namely, of a person lying out of panic, out of fear of another, out of the need to protect another person, out of a false sense of guilt, or out of fear of unnecessary involvement. The judge did not advert to the possibility that the denial of memory was merely an unconscious coping mechanism. Nor did the judge suggest the possibility that there might have been any medical or psychological explanation for it. That is quite understandable, given that he was not asked to do so.

Exception was taken to the directions on consciousness of guilt and counsel asked the judge to direct that there might be explanations for the “lie” other than those which his Honour had stated. The only explanation then suggested by counsel was that she “was just simply concerned about being placed at the scene and not necessarily of [sic] any intent to commit murder”.

The judge re-directed the jury that he had given them only “general examples” of innocent explanations for a lie. He said that the defence contended that the lack of memory was not a lie but was the truth, but that even if it was a lie there might be the innocent explanation that she just did not want to acknowledge being at the scene, given that she had previously expressed her dislike for the deceased.

Counsel did not submit to the judge at any time that the jury ought be required to exclude the possibility that there might be a medical or psychological explanation for the loss of memory, a course dictated by the tactical decision not to call evidence from the expert witnesses. As I read the transcript of the discussion, it seems that counsel accepted that unless expert evidence was called he could not urge the judge to advance that explanation for memory loss. Nonetheless, and without taking the risk of calling those witnesses, he had succeeded in placing before the jury the applicant’s own explanation for her memory loss, which was replete with references to her psychiatrist and psychologist. In his final address he had made good use of the applicant’s evidence that she had told her psychologist of past assaults and misconduct by the deceased towards her, while at the same time portraying the applicant as “not a violent person, she was a troubled person, she did have alcohol troubles”. He submitted that she was a person likely to have acted only in self-defence and/or without murderous intention. Having avoided any evidence being led from the expert witnesses which was inconsistent with that picture it is likely that counsel did not want the jury to be directed that the defence could have called those witnesses.

Given the use that the prosecutor sought to make of the suggested lie, it was appropriate that the direction be given, as it was, in terms of Edwards[10] rather than in the terms suggested in Zoneff v. The Queen[11], which formulation defence counsel preferred. Save for that nothing more was asked of the judge by way of direction than was ultimately given, and in my view the direction was not deficient. Once again, the decision of counsel not to seek a more explicit direction as to there being any psychological explanation for the memory loss was a competent one taken to gain a tactical advantage. This ground can not succeed and leave to add it should be refused. In the course or argument under this proposed new ground, Mr Carter sought to further amend ground 4, to contend that the judge ought to have directed the jury that they had to exclude the reasonable possibility that the lie was told in consciousness of guilt of a crime other than murder, specifically manslaughter.

I agree with the reasons of Hollingworth, A.J.A. for rejecting that contention.

[10]Edwards, at 211.

[11](2000) 200 C.L.R. 234, at 245 [23].

The application for leave to amend the grounds of appeal ought be refused and the application for leave to appeal against conviction should be dismissed.

NETTLE, J.A.:

I have had the advantage of reading in draft the reasons for judgment of Hollingworth, A.J.A. and the reasons for judgment of Eames, J.A. and with respect I agree with their Honours that the applicant has failed to make out Grounds 1 and 2 and proposed Ground 4 of appeal. Proposed Ground 3 is more difficult, but in the end I agree with their Honours. that it too fails.

To begin with I was troubled that the Crown prosecutor may have acted unfairly in suggesting that the applicant’s lack of recollection was a deliberate lie or that the judge erred in the directions which his Honour gave as to other possible causes for the applicant’s lack of recollection. As Hollingworth, A.J.A. explains, the prosecutor held reports suggesting that the applicant made claims of memory loss before the killing, and that the opinion of Dr Bell, formed after the killing, could have gone some way to rebutting the suggestion that the applicant’s lack of recollection was feigned. But upon reflection I do not see that the prosecutor was bound to accept Dr Bell’s opinion or otherwise to desist from an allegation which was inconsistent with it.

It is of course a basic requirement of the adversary system of criminal justice that the Crown must act with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused’s trial is a fair one.[12] Plainly, therefore, the Crown is required to call all available material witnesses unless there is some good reason not to do so and the fact that a witness may give an account inconsistent with the Crown case is not a sufficient reason for not doing so.[13] But the Crown is not obliged to shape its case according to some view of the potential range of evidence most favourable to the accused. To the contrary, the Crown may for good reason and frequently does advance a case which is inconsistent with a significant portion of the available evidence that is favourable to the accused. Subject always to the imperative that the Crown act rationally and fairly, in the end it is for the Crown to determine the view of the evidence for which it will contend and it is for the jury to decide whether that view is to be accepted. Provided therefore that the Crown acts in good faith and fairly, and thus calls all available credible witnesses or makes them available for cross examination, I see no injustice in the fact of disconformity between some feature of the Crown case and some part of the evidence which is or may have been called.
[12]Dyers v. The Queen (2002) 210 C.L.R. 285 at 293 [11], per Gaudron and Hayne, JJ.
[13]ibid.

In this case there is nothing to suggest that the prosecutor acted in bad faith or irrationally in contending that the accused was feigning a lack of recollection. For all that can be told, he had good reason to doubt Dr Bell’s opinion and in effect to ask the jury to reach a contrary view. The only thing which might be said against the course which he adopted is that he did not call Dr Bell to give evidence of his opinion. But the court should be astute to acknowledge the nature of the discretion which is reposed in the prosecutor and the limitations attaching to judicial knowledge of material circumstances[14] and, in any event, it is not suggested that the Crown’s failure to call Dr Bell resulted in a miscarriage of justice. In truth, what the applicant seeks is to have had the advantage at trial of Dr Bell not being called, and thus of avoiding the possibility that he may have given evidence which in some respects would not have assisted the applicant, and yet to say now that the jury were left with a false impression of the facts because they were not apprised of so much of what Dr Bell might have said as may have been favourable to the applicant.
[14]Richardson v. The Queen (1974) 131 C.L.R. 116 at 122; The Queen v. Apostilides (1984) 154 C.L.R. 563 at 574.

It may be assumed that the trial judge was aware that the depositions contained material which was not in evidence but may have gone some way to rebut the suggestion of recent invention. But it was not for the judge to say anything about it to the jury. As was said in Doggett v. The Queen,[15] in our system of criminal justice the trial is conducted as a contest between the prosecutor and the accused and the presiding judge takes no part in the investigation of the alleged crime or in the framing of the charges or in the calling of the evidence. The prosecutor and the defence define the issues which are to be presented to the jury for consideration and they include not only the ultimate issue but also the subsidiary issues which are said to be relevant to the determination of the ultimate issue. The way in which the issues are so defined in turn informs the directions, comments and warnings from the trial judge to the jury that may be appropriate or necessary. The purpose of directions is therefore to assist the jury in the practical task of resolving fairly the issues which have been presented to them by the parties. It is not to present issues to the jury which the parties have chosen to leave aside.
[15](2001) 208 C.L.R. 343 at 346 [1].

In this case, as Hollingworth, A.J.A. has explained, it was open to defence counsel to require that Dr Bell be called and to cross examine him in order to rebut the suggestion that the applicant was feigning a lack of recollection. If that had been done, the evidence so adduced may well have warranted a specific direction that one possible explanation for the absence of recollection was a medical or psychological condition. But as Hollingworth, A.J.A. has also observed, it may be inferred that defence counsel made an informed tactical decision not to have Dr Bell give evidence - for fear of the consequences if he did so - and it is not suggested that defence counsel was in error in making that choice or that it was otherwise productive of a miscarriage of justice.[16]
[16]cf. TKWJ v. The Queen (2002) 212 C.L.R. 124 at 128 [8], per Gleeson, C.J. and at 149 [79], per McHugh, J.; Ali v. The Queen (2005) 214 A.L.R. 1 at 4 [7] per Gleeson, C.J. and at 6 [19], per Hayne, J.

In the result, there was no evidence and therefore in my opinion there was no

basis to assume that the applicant’s lack of recollection may have been due a medical or psychological condition. In those circumstances, for the judge to direct the jury that a possible explanation for the lack of recollection was a medical or psychological disorder would have been to invite the jury to engage in an exercise in speculation. Views may differ perhaps as to whether that would have been improper. But in my opinion it is tolerably clear that it was not required.
Conclusion

I consider the application to add proposed Grounds 3 and 4 of appeal should be refused and the application for leave to appeal against conviction should be dismissed.

HOLLINGWORTH, A.J.A:

The applicant was convicted of murder on 4 July 2003. The victim, Michael Pitts, was the de facto husband of the applicant’s late mother. The applicant was 41 years old at the time of the victim’s death on Friday 19 October 2001.

Mr Pitts’ body was found lying face down, naked from the waist up, in the backyard of his home at Charlotte Street, Newport. He had received severe blows to the head and upper part of his body, including three broken ribs. He had bruising to the right eye. There was a blood-stained house brick next to his body. A blood-stained rock and gardening fork were also found nearby, as were the victim’s shirt and singlet, turned inside out and torn. The cause of death was found to be “blunt head trauma, skull fracture and inter-cranial haemorrhage”. Mr Pitts was 66 years old at the time of his death.

According to the forensic pathologist, moderate to severe force would have been applied to cause the very significant skull fracture which ultimately caused the victim’s death. He believed that the house brick would be more than likely implicated and because the facture was a complex one, perhaps more than one, but probably no more than two, blows were involved. He could not accurately say how long it would have been before the victim died. The indications were that there had been bleeding for several minutes. If the blow did not lead to immediate unconsciousness, moaning or groaning would be very likely, or the person may be able to utter some words before lapsing into unconsciousness. There would be no purposeful sounds after unconsciousness, but may be snorting, gurgling or spluttering. The blunt trauma injuries to the upper arm, back of the forearm and back of his hands were consistent with defence-type injuries. No alcohol or drugs were detected in Mr Pitts’ body.

The precise time of death could not be established. Mr Pitt’s body was found by the owner of an automotive repair business who delivered Mr Pitts’ car to his home shortly after 6.45 pm, after he had failed to return to collect it that afternoon as arranged.

There was no eye witness to the violence which led to Mr Pitts’ death. Several neighbours heard noises at about 12.30 pm and 5.25 pm on the Friday afternoon, which may or may not have been connected with the attack. A car which fitted the description of the applicant’s car, and which had been seen at the Charlotte Street house on previous occasions, was seen parked in the driveway at about 1.40 pm that day.

A number of samples of blood and biological material were taken from various items found at the crime scene. Samples of blood and biological material taken from the brick, the rock and the garden fork provided a DNA match with the victim only. Bloodstains on the singlet and shirt matched the victim’s DNA profile and a biological sample taken from two sources on the shirt matched both the victim and the applicant. Two of the three human hairs found on the shirt were the victim’s and one was the applicant’s. Human biological material found on the metal strut of a lean-to in the backyard matched both the victim and the applicant’s DNA. Bloodstains found throughout the house contained DNA consistent with that of the victim. Blood samples taken from the back door, the front door and the kitchen floor matched that of the applicant.

In the course of investigating Mr Pitts’ death, homicide squad detectives visited the applicant at her Malvern home at approximately 1.10 am in the early morning of Saturday 20 October 2001. The applicant was fully dressed and the television was on. The police informed her that Mr Pitts’ body had been found in the backyard of his home. She asked whether he had suffered a heart attack. She said that the last time she had seen him was on the previous Saturday, 13 October, when she had gone there with her aunt to sort her mother’s belongings. She said she had not spoken to Mr Pitts since that date and did not get on with him. She also told the police about an argument she had with Mr Pitts on 28 July 2001, shortly before her mother’s death on 6 September 2001. The argument was about the effect Mr Pitts’ smoking was having on her mother’s ill-health, and is discussed in more detail later in these reasons.

The applicant was then asked to accompany police to the homicide squad to make a statement. As she was getting changed, police noticed bruising on one of her arms. They asked to see her car before they left and she took them to the garage. The car was not there. She expressed surprise, and said she was sure she had parked there when she last drove it on the Thursday. Then she saw the car in a parking bay behind her. She told the police it was not unusual for her to park her car in that spot even though she could not remember parking it there on that occasion.

During the making of her statement at the homicide squad, police officers noticed that the bruising on her arms appeared to be recent. The police decided that the applicant should now be treated as a murder suspect and, accordingly, the taking of her statement was discontinued. The applicant was formally cautioned and an audio-taped record of interview commenced. The applicant said she did not know how she came to have the bruises and had seen them in the shower for the first time that evening.

A forensic medical officer conducted a physical examination of the applicant and found scratches and abrasions to her neck, a recent bruise to the back of her left shoulder, various bruises to the right upper arm and a bruise, scratch and abrasion to the right hand. The applicant said the scratches were a result of her scratching herself. She said she did not know how she got the bruises but that she bruised easily. In the medical officer’s opinion these injuries were “evidence of blunt recent trauma ... (and) features of the injuries indicate the bruises were of uniform colour and would be consistent with them being sustained in the hours prior to the examination”. He also concluded that the bruising on the back of the right hand and its positioning “could be associated with defence injuries, namely trying to protect an arm against a blow with some animate or some inanimate object”. The applicant had a blood alcohol reading at this time of 0.02%.

The applicant gave evidence at trial. She said her memory was not good. She said she drank a lot - always at night - slept a lot and did not like to go out. She took medication for depression. She had known Mr Pitts since she was 13 years old, when he had formed a relationship with her mother and her mother left the family to live with him. She did not see her mother for a number of years after that. She reconciled with her mother when she was about 19. She did not get on with the victim. She said he would try to kiss her and touch her when she visited. During 2001 she frequently slept over at Charlotte Street to help look after her mother, who was unwell. She gave evidence about the occasion in late July 2001 when she had a big argument with Mr Pitts over his smoking in the house and he punched her in the face a couple of times. She said they were screaming at each other and he told her to get out and never come back. She called her sister to tell her what had happened and her sister advised her to call the police, which she did.

The applicant gave evidence that she had little memory of what she did on Friday, the day of Mr Pitts’ death, and no memory at all of what she did on Thursday, the previous day. She recalled making a phone call to her sister some time between 8.00 and 8.30 am on the Friday morning, to see if she would be going to Charlotte Street with her to collect some more of her mother’s items. She could not recall making a call which telephone records showed had been made from her home phone to radio station 3AW, a station to which she listened[17]. She said her next memory of the day was waking up about 4.20 pm to watch a television show, feeling too tired to do so and going back to sleep. She next remembered waking up around 7 pm and watching the Seinfeld show. She said she drank some glasses of wine before the police arrived, some time after midnight.
[17]The informant was unable to find anybody at 3AW who knew anything of the content of the call. The evidence was that the applicant was the only person present at her house that day.

In her notice dated 27 August 2003, the applicant sought leave to appeal against conviction on the grounds that the verdict was unsafe and unsatisfactory and the trial judge erred in not leaving provocation to the jury. At the hearing before us the applicant sought leave to add two further grounds, both of which raised issues of consciousness of guilt. We heard argument in relation to the proposed amended grounds, without formally ruling on whether or not leave would be granted.

The applicant was sentenced to 15 years’ imprisonment with a non-parole period of 10 years. The applicant filed a notice of application for leave to appeal against sentence, also dated 27 August 2003. We granted the applicant leave to abandon that application.

Provocation – ground 2

At the trial, defence counsel argued that both provocation and self-defence should be left to the jury, as there was circumstantial evidence capable of raising an inference that the applicant had been physically attacked by the victim, “for whatever reason … whether sexually or not”. The Crown prosecutor resisted either provocation or self-defence being left to the jury.

The learned trial judge ruled that he would leave self-defence, but not provocation. He said that the difficulty was with the application of the “second test” - that is to say, the objective limb - in circumstances where the applicant was not advancing a version as to what in fact had happened. His Honour identified the problem as being: “… how can the ordinary test be applied when what one is trying to do is to infer?, speculate?, as to what was done and in what kind of order?”

The applicant argues that provocation ought to have been left because there was a possibility that the jury might have discovered in the material before them enough to enable them to find a case of provocation.

The applicant puts forward a long list of matters which she says could lay a foundation for the possibility that she had a loss of self-control as a result of provocation from the victim. Those matters include: the previous relationship between the applicant and the victim including his sexual advances, the 28 July incident and the victim’s behaviour on the previous Saturday[18]; the applicant’s psychiatric history and condition in 2001, which included depression and excessive consumption of alcohol, as well as grief following her mother’s death in September 2001; the applicant’s recent injuries, which were consistent with having been in a fight or having been attacked; the location of the applicant’s blood at the front door of the Charlotte Street house; the fact that the garden fork contained DNA profiles matching the victim, but none matching the applicant. Importantly, it was also said that the victim suffered injuries consistent with a sudden loss of self-control being experienced by his assailant in the course of a fight. In all the circumstances, it was said that provocation ought to have been left to the jury.
[18]The applicant gave evidence that when she, her sister and aunt had attended to collect some of her mother’s things, Mr Pitts had behaved in an obnoxious manner and would not leave them alone in the room.

As Brennan, Deane, Dawson and Gaudron, JJ. held in Masciantonio v. The Queen[19] the subjective component of provocation requires that the jury be satisfied that the accused person caused the death while acting under provocation; thus the provocation must actually cause the accused to lose self-control and the accused must act while deprived of self-control before he or she has had the opportunity to regain his or her composure.
[19](1995) 183 C.L.R. 58 at 66.

Provocation may arise even if an accused has not said in terms that he or she was provoked[20]. This is because the law recognises that the admission of loss of self-control is bound to weaken, if not destroy, self-defence; the law does not place the accused in a dilemma in this regard[21]. The fact that, in this case, the applicant has not given evidence of having been provoked and having lost self-control does not prevent the defence from arising. But there must still be some evidence from which the jury could properly draw the necessary inferences.
[20]Van den Hoek v. The Queen (1986) 161 C.L.R. 158 at 162-3 per Gibbs, C.J., Wilson, Brennan and Deane, JJ., at 169 per Mason, J.
[21]Lee Chun-Chuen v. R. [1963] A.C. 220 at 232-3; Van den Hoek v. The Queen (1986) 161 C.L.R. 158 at 169 per Mason, J.

Whilst the multiplicity and severity of the injuries suffered by the deceased might provide some support for the conclusion that the applicant did in fact lose self-control, there was no evidence that loss of self-control was due to provocation. Indeed, it would be rank speculation for a jury to conclude not only that there had been any provocative conduct, at all, from the deceased, but also that it had been that conduct which had provoked the applicant to do what she did, and to still be deprived of self-control by virtue of the continuing effect of that provocation when she killed the deceased.

Even if it might have been open to the jury to infer that the applicant did indeed act without self-control due to some provocation by the victim, the objective component could not be satisfied here. The objective test was stated in Masciantonio as being:

“The question is whether the provocation, measured in gravity by reference to the personal situation of the accused, could have caused an ordinary person to form an intention to kill or do grievous bodily harm and to act upon that intention, as the accused did, so as to give effect to it.”[22]

[22]At 69.

The evidence must be taken at its highest in favour of the applicant. Even a weak case of provocation must be left to the jury. Taken at its highest, the evidence could support a conclusion that there had been a physical fight between the applicant and the victim, but no more than that. In particular, there was simply no evidence as to why the applicant attended Charlotte Street that day, how the fight began, who was the initial aggressor, which of the bloodstained objects found in the backyard had been used and how and by whom, the order of the fight, the duration of the fight, or any conversations or comments made by the victim or the applicant.

Without any evidence as to such matters, it would not be possible for the jury to have assessed whether an ordinary person might have been provoked sufficiently to form an intention to kill or cause serious physical harm. None of the cases to which the applicant took us involved such a complete lack of relevant evidence[23]. Had the defence been left, the jury could only have engaged in impermissible speculation. Accordingly, the learned trial judge did not err in failing to leave provocation to the jury. Ground 2 of the appeal must fail.
[23]R. v. Thorpe [1999] 1 V.R. 326 was the most favourable case from the applicant’s point of view. Even though there was no direct evidence in that case of what happened at the fatal time, there was evidence about events immediately prior to that time, and evidence which could have led to the inference that the victim, who went into the house with aggressive intent, struck the accused first.

There is no inconsistency in concluding that provocation was not open in these circumstances but that self-defence was open to be considered by the jury. A person might well act in self-defence to an attack without losing self-control, at all, let alone by virtue of anything said or done by the attacker. Whilst the evidence of minor injuries to the applicant might support the inference that she had been attacked, it was not capable, without more, of supporting an inference that she had been provoked and continued to act under that provocation when she killed the deceased.

Consciousness of guilt – proposed grounds 3 and 4

There are two separate but related proposed grounds of appeal relating to the question of consciousness of guilt. They are as follows:

“3.There has been a substantial miscarriage of justice by reason of the Crown prosecutor contending or relying upon a submission to the jury that the applicant’s evidence that she had no memory of the events of 19 October 2001 at Charlotte Street was a deliberate lie demonstrating the applicant’s consciousness of guilt of the murder of the deceased.
4.The learned trial judge erred in directing the jury that it was open to them to find that the applicant’s evidence that she had no memory of the events of 19 October 2001 at Charlotte Street was a deliberate lie capable of demonstrating the applicant’s consciousness of guilt of the murder of the deceased and, as a consequence, there has been a substantial miscarriage of justice. Alternatively, the learned trial judge ought to have directed as to the possibility that the applicant had lied in consciousness of an offence other than murder.”

How the issue was dealt with at trial

Prior to the empanelment of the jury, defence counsel sought what he described as “an indication” from the trial judge as to the admissibility of evidence of three medical professionals[24] regarding the applicant’s psychiatric condition, particularly her reported history of memory loss, and as to whether the Crown ought to call those three witnesses. Two of those three people had been treating her prior to the death of Mr Pitts. Defence counsel expressed a concern that the jury may view the applicant’s claim of memory loss with “a sinister cast” if medical evidence was not led to put her amnesiac episodes into context.
[24]Being Dr Bell and Dr Gidley, who were psychiatrists, and Ms Quirk, who was a psychologist.

The prosecutor opposed the calling of the medical evidence on the bases that it was not admissible and that if the Crown called the evidence it may raise the question of mental impairment[25]. The prosecutor informed the judge that “… the Crown case does not depend on consciousness of guilt, it’s not put that way at all.”
[25]Although the applicant’s counsel submitted to us with some persuasiveness that the prosecutor’s submissions in this regard were erroneous, he did not suggest that they were not made bona fide.

Defence counsel expressly acknowledged in the course of this discussion that the Crown could not be shut out from changing its position and relying on memory loss as consciousness of guilt, depending on how the evidence came out. Indeed, defence counsel went on to outline ways in which the Crown might use lack of memory as going to consciousness of guilt or credit.

The trial judge was not pressed to and made no formal ruling at this stage. He expressed a preliminary view that the Crown would not be compelled to call the medical evidence. His Honour said that if the defence chose to call that evidence it could do so, in which case it would be prudent to have a voir dire with the psychiatrists to determine the extent to which their opinions were contingent on the history provided by the applicant. His Honour noted that defence counsel had a “difficult series of forensic dilemmas” in this regard. He also indicated that it was highly likely that he would give a consciousness of guilt direction.

Defence counsel never made an application for a voir dire or sought to re-agitate the issues raised in the preliminary discussion.

The prosecutor did not open to the jury on consciousness of guilt. In his opening address, defence counsel said that the applicant’s claim that she did not remember going to Charlotte Street was not her defence. He also said that the fact that she could not recall going there was “a neutral fact, it doesn’t help, it doesn’t hurt.”

In her evidence in chief, the applicant said that she had no memory of having gone to Charlotte Street on the Friday. What little she did remember of the Friday is summarised in paragraph [54] of these reasons. She also gave evidence that in October 2001 she did not have a good ability to remember things, and that she drank a lot and slept a lot at that time.

It was put to the applicant on a number of occasions in cross-examination that her inability to remember going to Charlotte Street was “a very convenient lapse of memory”. She consistently denied that was so and said that she had experienced memory lapses long before 19 October 2001. It was never directly put to her that she was deliberately lying when she said she could not recall going to Charlotte Street or what happened there that day, although that seems to have been implicit in some of the questions. The following exchange took place between the prosecutor and the applicant at the end of cross-examination:

“I suggest to you that that’s a very convenient way of dealing with that episode. To say ‘I can’t remember’ means you can’t be asked any questions about it, doesn’t it? - - - That’s the theory, yes.
I suggest to you that’s [sic] you have adopted that approach? - - - No, I haven’t, no. I had memory lapses long before this started.
Of course, as far as the memory lapses are concerned, we’ve got your word for that and no-one else’s, right? - - - Well, I have told my psychiatrist - - -
Well, you might have told people - - - ? - - - and my psychologist - - -
…
You are the sole source of those assertions, right? - - - [My psychiatrist and psychologist] haven’t been called in, no.
You are the sole source of the assertions that you suffer memory losses? - - - Yes.
At this time have you got any doubt that you actually went to Charlotte Street that Friday? - - - I don’t know, I’m sorry.
You don’t know? - - - I don’t know.
Have you got any doubt that you caused Mike Pitts’ death? - - - I don’t know anything about that, I’m sorry. I have no memory of that day.
So whatever I ask you about that day, the answer is going to be the same, isn’t it, ‘I don’t know, I don’t know’? - - - I don’t have any memory of that day, no.
See, I suggest to you that’s your way of coping with what you have done? - - - No.”

Defence counsel did not call any of the medical witnesses to deal with any of the matters which had been put to the applicant.

After the close of evidence, and in the absence of the jury, the trial judge discussed with counsel the matters in relation to which he proposed to charge. His Honour said he thought he would have to charge in relation to lies, but what he would say would depend on how counsel put their cases.

During this discussion, defence counsel submitted that the applicant’s memory loss could never constitute an admission by conduct of guilt of murder. He noted that the prosecutor had ended his cross-examination by putting to the applicant that her loss of memory was a coping mechanism.

The prosecutor submitted that the judge should give an Edwards direction[26]. He also said that the Crown was obliged to put the applicant’s statement that she did not remember what happened as a consciousness of guilt lie “having regard to the way the case has been conducted.” The prosecutor did not indicate what it was about the way the case had been conducted that had led to what was undoubtedly a complete change of position by the Crown.
[26]Edwards v. The Queen (1993) 178 C.L.R. 193.

Asked for clarification by the judge, the prosecutor confirmed that he was alleging that, in saying that she did not remember what happened that day, the applicant was deliberately lying. Asked about the inference to be drawn from that lie, the prosecutor said that it was that the applicant was present at the scene and had the requisite intent for murder.

Defence counsel objected on several grounds. First, it was put as a “quasi abuse of process argument”, that the Crown could not rely on the evidence as consciousness of guilt when it had in its hands reports commissioned by the Crown from the medical experts, who could have given evidence about amnesia and the causes of it. Next, it was said that the Crown prosecutor had not put to the applicant that she was feigning loss of memory out of a consciousness of guilt. Defence counsel described the Crown’s consciousness of guilt argument as “a last minute fling”.

Further, it was said that even if the jury was satisfied that the applicant had feigned a loss of memory, the inference could not lawfully be drawn that she had the necessary intent for murder. If any direction were to be given, it should be limited to a credit issue, the terminology of consciousness of guilt should not be used, and alternative inferences (if the lie was established) should be emphasised, including manslaughter.

The trial judge ruled that he would charge the jury on the basis sought by the Crown.

In his closing address, the prosecutor placed repeated and heavy reliance on the applicant’s evidence that she could not remember attending Charlotte Street. At one stage he described her as having had “an attack of ‘the forgets’ about Friday 19 October.” He described it as “remarkable” that she had forgotten going over to Charlotte Street and what she did there.

“Members of the jury, it’s entirely a matter for you but in my respectful submission you can understand people forgetting little things, you can understand people forgetting an episode that takes seconds, but to forget all this, in my submission, you just cannot believe that. How easy is it to be able to say, knowing that she has been there, knowing that she has killed Mr Pitts, knowing that she’s done it by picking a brick up and hitting him at least twice on the head hard with it, knowing that she’s done all these things, why forget, why does she forget? It’s my submission to you that it is reasonable to conclude that she forgets and says she forgets not because in fact she’s forgotten but because she knew what she had done and that if she were to say she remembered it would involve admitting that she killed Mr Pitts, it would involve admitting that there is only one possible intent that she could have had using that brick and that is either to kill him or to do him really serious injury.”

Defence counsel attacked at some length the Crown contention that the applicant was a liar. He said that memory loss was far from being a convenient position. He pointed out that she could have given any version that she wanted about what happened that day and there would have been nobody to contradict her.

“For the prosecutor to say therefore that it is convenient to have a memory lapse is just plain wrong. It is inconvenient. It is the worst possible position she could be in. … But do not treat that loss of memory as some sort of self-serving sneaky position taken up by her. It is not very self-serving and it is not very sneaky. A sneaky person, a person who had an ounce of go in them as a liar, could simply say ‘Look, he attacked me, he tried to rape me. I hit him, I didn’t mean to kill him and I was defending myself.’”

Defence counsel did not address on what inferences might be drawn in the event that the jury found that the applicant had in fact lied about her memory loss.

After explaining the concept of consciousness of guilt, the judge informed the jury that before they could find that the applicant had lied there had to be “independent evidence to establish that it was a lie.” His Honour told them that if they found that there had been a deliberate lie on an important matter, they would have to take great care as to what inference could be drawn from that lie. He pointed out that individuals can behave in a particular way after the event for a wide variety of motives, which may be unconnected with any sense of criminal guilt.

“Before you would be entitled to rely upon conduct after the event by the accused as indicating consciousness of guilt, you would have to be satisfied that no other interpretation is reasonably open about the conduct but that it shows a consciousness of guilt going to one or more elements of the crime charged.”

His Honour then fairly summarised how the Crown and the defence had put their arguments as to consciousness of guilt.

By way of exception, defence counsel asked the trial judge to give a direction as to alternative explanations for the lie, if indeed it was found to be one. In particular, he asked that they be told that one explanation for the lie would be “she was just simply concerned about being placed at the scene and not necessarily of any intent to commit murder.” The judge gave the further direction which was sought.

The prosecutor’s conduct

The issue of consciousness of guilt was handled by the Crown at trial in a way which was less than ideal in several respects, most of which are not encompassed by proposed ground 3.

Having clearly stated at the start of the trial that the Crown case did not depend on consciousness of guilt, the prosecutor did not give a satisfactory reason for changing that position after the evidence had closed. Although he said that he was now obliged to put the issue “having regard to the way the case has been conducted”, he did not explain to what he was referring.

It was put to us by the Crown that the relevant change in position was between the applicant’s unsigned statement[27] (in which she mentioned greater detail of her conversation with her sister and her attempts to contact her cousin, Jacqui, on the Friday morning), and her evidence in the witness box (in which she had less memory of those events). In my opinion, the differences between her statement and evidence are relatively insignificant and entirely predictable. That the degree of detail in her memory might have deteriorated over the two years between her statement and the trial, especially given her psychiatric history and alcohol abuse, would hardly be surprising.
[27]Exhibit 7 at trial.

Counsel for the Crown also suggested to us that the very fact that the applicant had given evidence was a change in the way the defence was run. I am not satisfied that there was anything about the way that the case was conducted which might have justified such a complete reversal of position by the Crown. That is not to say that it was not open to the Crown to raise consciousness of guilt so late into the trial; merely that I do not accept that the change in position could be justified by reference to how the case had been run.

I note that there is nothing to suggest that the prosecutor acted in bad faith or irrationally in contending that the accused was feigning a lack of recollection.

The prosecutor’s cross-examination of the applicant about her memory loss also left much to be desired, although there is no ground of appeal raising any complaint in this regard. Whilst the general tone of it was such that the prosecutor was clearly inviting the jury to reject the applicant’s evidence that she could not remember the relevant events, it is regrettable that the prosecutor never put it directly to the applicant that she was deliberately lying about that. This problem was compounded by the fact that what he did put to her at the end was a different proposition, namely, that she had forgotten what happened as some sort of coping mechanism. The use of the expression “coping mechanism” was unfortunate, in that, read in isolation, it may have conveyed an unconscious process. However, on a fair reading of the entire cross-examination, in my opinion the general tenor was such as to clearly convey that her way of coping with the truth of what she had done was to deliberately and consciously refuse to confront what she knew to be the truth.

The prosecutor also put to the applicant that as far as her memory lapses were concerned “we’ve got your word for that and no-one else’s, right?” and “you are the sole source of the assertions that you suffer memory losses?” Those propositions were literally true, in the sense that her memory loss had not been the subject of objective proof. Unfortunately, they may have conveyed the suggestion that nobody else knew of her memory losses, even though the prosecutor was well aware that the applicant had been complaining of memory lapses to her psychiatrist and psychologist for some time before Mr Pitts’ death. However, the applicant eventually agreed with those propositions, after telling the jury that she had in fact told her psychiatrist and psychologist about her memory lapses. That is to say, she does not appear to have been confused by the prosecutor’s choice of words.

Although some of these features of the prosecutor’s conduct were less than ideal, it does not follow that there has been a substantial miscarriage of justice by reason of the prosecutor relying on the applicant’s evidence that she had no memory of the relevant events as being a deliberate lie demonstrating consciousness of guilt of murder.

Defence counsel properly conceded at the outset that the Crown was not bound by its indication that it did not intend to raise consciousness of guilt.

The defence was also on notice from the start that the Crown did not intend to call the medical evidence and the judge did not believe the Crown was required to do so. The initial refusal of the prosecutor to call these witnesses was not inappropriate. The defence could have made a formal application for the Crown to call the medical evidence, but chose not to do so. There is no suggestion that the Crown’s failure to call the medical evidence resulted in a miscarriage of justice.

In any event, the defence could have called that evidence at any stage prior to the close of evidence. Had defence counsel done so, it could have bolstered the credibility of the applicant’s evidence as to amnesia on the relevant day. Even after it became apparent after the close of evidence that the Crown had changed its position, the defence could have sought leave to re-open the defence case and call the medical evidence.

The defence had what the judge recognised as a very difficult forensic decision whether to call the medical evidence itself. Counsel for the applicant conceded that we must assume that the application in relation to the medical evidence was not re-agitated for a forensic reason. Whilst the medical reports supported the applicant’s evidence that she had reported long before October 2001 that she was suffering from memory loss - and could have gone some way to rebutting the suggestion that her lack of recollection was feigned - they also contained material which was less than helpful to other aspects of the defence. For example, she had told Dr Bell about an episode in which she had assaulted Mr Pitts; she had also told all of the medical professionals of ongoing feelings of anger towards Mr Pitts.

Defence counsel was a very experienced criminal barrister. There are sound forensic reasons for him to have chosen not to call the medical evidence. He appears to have made a rational tactical decision to focus on the issue of whether the applicant’s loss of memory was a lie, and a deliberate one at that; that is, to engage on the question of the “convenience” of her memory loss. It is not suggested that defence counsel was in error in making that decision or that it was otherwise productive of a miscarriage of justice.

In those circumstances, I am satisfied that no miscarriage of justice has occurred by virtue of the prosecutor’s cross-examination or his reliance on the lie as evidencing consciousness of guilt.

The trial judge’s directions

Proposed ground 4 has two aspects to it. The first part asserts that the judge erred in directing that it was open to the jury to find that her evidence of memory loss was a deliberate lie capable of demonstrating consciousness of guilt of murder. The alternative argument is that the trial judge ought to have directed as to the possibility that the applicant had lied in consciousness of an offence other than murder.

No real error has been argued or demonstrated in relation to the judge’s charging the jury on consciousness of guilt.

Had the medical evidence been called, it may well have warranted a specific direction to the effect that one possible explanation for the absence of recollection was a medical or psychological condition. In the absence of such evidence, there was no basis to assume that the applicant’s lack of recollection may have been due to a medical or psychological condition. For the judge to have directed the jury that a possible explanation for the lack of recollection was a medical or psychological disorder would have been to invite the jury to engage in an exercise in speculation. Whilst views may differ as to the propriety of such a direction, it was neither sought by defence counsel nor required.

As to the alternative argument, the judge did direct the jury that they had to be satisfied that no other interpretation was reasonably open about the conduct other than that it showed a consciousness of guilt of the offence charged. Defence counsel did not ask the judge to re-direct more specifically in relation to the issue of consciousness of guilt of some lesser offence, such as manslaughter. Instead, when defence counsel took an exception, he asked for a redirection that she might have lied about being at Mr Pitts’ home because she was concerned about being placed at the scene. The judge re-directed in the terms which were requested.

Although there may be cases where it is necessary for the jury to be directed to have regard to the possibility that consciousness of guilt related to a crime other than murder[28] it would generally be unnecessary for a direction to be given in terms other than “consciousness of guilt of the offence charged.”[29] In considering alternative counts which were open on the evidence the jury would, as part of their deliberations, be obliged to consider the consciousness of guilt evidence as part of the material relevant to a consideration of each alternative verdict. As the Full Court held in Woolley:

“Turning back then to what may be described as the threshold question as to whether the conduct, whether it be false denial or otherwise, is relevant and material, it is not always meaningful to ask whether the accused was betraying consciousness of guilt of the crime charged, for at the point in time when the conduct occurs the accused is presumably not thinking of guilt of a specific offence, much less of a series of alternatives. Rather the question is whether he is betraying a consciousness of being implicated in the actus reus, whether it be the killing or the robbery.
The use of the inquiry as to consciousness of guilt of the crime charged may be convenient in the majority of cases but it would not be appropriate in all cases. It is a mistake to convert this inquiry into a rigid formula.
…
In the present case the directions given by the learned trial judge did not, in speaking of consciousness of guilt, refer to each alternative to the principal charge on the presentment. For the reasons already indicated, it is not in our opinion necessary or indeed desirable to adopt such an artificial approach. The critical matters that had to be addressed in the context of this case were that the jury should understand that lies may be told for reasons that do not indicate consciousness of guilt of murder and that the defence explanations of self-defence or fear were put to the jury.”

[28]See Zoneff v. The Queen (2000) 200 C.L.R. 234 at 259 [62] per Kirby, J.; R. v. Nguyen (2001) 118 A.Crim.R. 479 at [66] per Smith, A.J.A., R. v. Woolley (1989) 42 A.Crim.R. 418 at 423-4.

[29]R. v. Rice [1996] 2 V.R. 406 at 415-6 per Brooking, J.A.; R. v. Woolley at 423-4.

In this case it would have been particularly inappropriate to give a direction that the applicant may have been conscious of her guilt of manslaughter, rather than murder, because she denied that she had any memory of the events at all. It would have completely discredited her evidence had the jury been charged as suggested, and it is not surprising that no such direction was sought by counsel at trial.

Verdict unsafe

The only remaining ground of appeal is ground 1, which asserts that the verdict is unsafe and unsatisfactory by reason of the matters the subject of ground 2 and proposed grounds 3 and 4. Each of those grounds must fail, for the reasons just given.

I am satisfied that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of murder; the verdict is not unsafe or unsatisfactory[30].
[30]M v. The Queen (1994) 181 C.L.R. 487.

Conclusion

For these reasons, the application to add proposed grounds 3 and 4 should be refused and the application for leave to appeal against conviction should be dismissed.

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[2005] VSCA 266

18 November 2005