R v Chang

Case [2003] VSCA 149


SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 88 of 2001

THE QUEEN

v.

GABRIEL OMAR CHANG

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JUDGES:

ORMISTON and CHARLES, JJ.A. and CUMMINS, A.J.A.

WHERE HELD:

MELBOURNE

DATES OF HEARING:

4 and 5 March 2003

DATE OF JUDGMENT:

22 September 2003

MEDIUM NEUTRAL CITATION:

[2003] VSCA 149

1st Revision – 22 September 2003

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CRIMINAL LAW – Evidence – Murder – Post-offence lies, flight and concealment by applicant – Ruling by trial judge that all such conduct apart from one lie not admissible as consciousness of guilt – Whether jury would nevertheless treat as consciousness of guilt – Whether Edwards direction required – No exception taken – Whether miscarriage of justice – Defence of accident not put to jury – Appeal allowed.

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APPEARANCES: Counsel Solicitors
For the Crown

Mr P.A. Coghlan Q.C.
Mrs C. Quinn

Ms K. Robertson, Solicitor for Public Prosecutions
For the Applicant Mr P.F. Tehan Q.C.
Ms G. Tsirmbas
Falcone Adams

ORMISTON, J.A.:

  1. Yet again the Court has before it an application for leave to appeal where the principal issue is the extent to which the trial judge should have given a warning as to evidence of consciousness of guilt in the manner prescribed by the High Court in Edwards v. The Queen[1].  Yet again it is a case where, after discussion with experienced trial counsel, a very experienced trial judge has chosen not to give a direction on the subject except in relation to two specific lies.  Counsel on both sides acquiesced in this course and it follows that no objection was taken to the form of the learned judge’s charge.  As is not uncommon, different counsel appearing before this Court on appeal have contended now that the charge in this respect was totally inadequate.  If it were not for the fact that this has occurred, in my experience and that of other members of the Court, on a number of other occasions in relation to cases where evidence conventionally described as that of consciousness of guilt has been led, one would pass it off as a mere unfortunate oversight on the part of judge and counsel at the trial or the undue enthusiasm of counsel on appeal.

    [1](1993) 178 C.L.R. 193.

  1. Neither of those explanations can be given in the present case and the reason is, I regret to say, to be found in the way the law has developed on this issue in the last decade, rather than any defect in understanding of judges and counsel involved in criminal trials.  The law on the subject was looked at, if but briefly, by the High Court only last month in Dhanhoa v. The Queen[2], but in ways which evidenced three somewhat different approaches to the issue but without giving any new assistance to trial judges and lawyers.  An intermediate Court of Appeal (and trial judges) can do little else than to attempt to apply Edwards, as it has been subsequently interpreted in cases such as Zoneff v. The…

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R v Chang [2003] VSCA 149
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[2003] VSCA 149
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CaseChat Overview and Summary

The defendant was convicted of murder and was sentenced to life imprisonment. He appealed against his conviction, contending that there was a miscarriage of justice because the trial judge had excluded evidence of his post-offence lies, flight and concealment from the jury, apart from one lie. The defendant argued that the excluded conduct should have been admitted as evidence of his consciousness of guilt. The court was required to decide whether the trial judge had erred in excluding the evidence, and whether the defendant's right to a fair trial had been infringed.

The court held that the trial judge had not erred in excluding the evidence, as the excluded conduct was not admissible as evidence of consciousness of guilt. The court noted that the defendant had not taken exception to the trial judge's ruling and that there was no evidence that the jury had treated the excluded conduct as consciousness of guilt. The court further held that there was no requirement for the trial judge to give a direction to the jury under Edwards v The Queen, as there was no risk that the jury would treat the excluded conduct as evidence of guilt. The court also held that there was no miscarriage of justice, as the excluded conduct was not crucial to the defendant's case and the jury had been properly directed on the law of accident. The court allowed the appeal and ordered a new trial.

The court further held that the trial judge had erred in not putting the defence of accident to the jury, as there was evidence that the death might have been accidental. The court held that this error might have affected the verdict and that there was a substantial miscarriage of justice. The court allowed the appeal and quashed the conviction and sentence. The court ordered that the defendant be retried on the charge of murder, with the defence of accident put to the jury.

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