R v Cliff (No 5)

[2018] NSWSC 166

Supreme Court

New South Wales

Medium Neutral Citation:	R v Cliff (No 5) [2018] NSWSC 166
Hearing dates:	21 February 2018
Date of orders:	21 February 2018
Decision date:	21 February 2018
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	(1) Crown may rely upon evidence of post-offending conduct as evidence of guilt;  (2) Partial defence of extreme provocation will be left for the consideration of the jury
Catchwords:	CRIMINAL LAW – ruling on post-offending conduct as evidence of consciousness of guilt - extreme provocation - self defence
Legislation Cited:	Crimes Act 1900 (NSW), s 23
Cases Cited:	Blackwell v R [2011] NSWCCA 93: 208 A Crim R 392 Bullard v The Queen, [1957] AC 635 Gammage v The Queen (1969) 122 CLR 444; [1969] HCA 68 James v The Queen [2014] HCA 6; (2014) 253 CLR 475 Masciantonio v The Queen (1995) 183 CLR 58 Penza v R [2013] NSWCCA 21 The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 R v Ciantar (2006) 16 VR 26; (2006) VSCA 263 R v Fowler [2003] NSWCCA 321 R v Heyes (2006) 12 VR 401; [2006] VSCA 86 R v Hill [1986] 1 SCR 313 R v Sievers [2004] NSWCCA 463; 151 A Crim R 426 Steer v R [2008] NSWCCA 295; 191 A Crim R 435
Category:	Procedural and other rulings
Parties:	Regina (Crown) Bryce Cliff (Accused)
Representation:	Counsel: M Pincott (Crown) E Wilson SC (Accused)   Solicitor: M McFarlane (Office Director of Public Prosecutions) (Crown) A Van der Velde (Matouk Joyner Lawyers) (Accused)
File Number(s):	2016/175505

EX TEMPORE Judgment (REVISED)

1. Mr Bryce Cliff is charged with the murder of James Cleghorn. He has entered a plea of “not guilty of murder, but guilty of manslaughter”. The evidence in the trial concluded yesterday afternoon and addresses of counsel will commence this afternoon.

2. I have been required to resolve three questions of law which have arisen between the prosecution and the defence concerning, first, whether the prosecution can rely upon evidence of post-offending lies and other conduct as evidence of guilt; secondly, whether a partial defence of extreme provocation should be left to the jury for their consideration; and thirdly, whether the defence of self-defence should be left for the jury’s consideration. I have been greatly assisted by the submissions of Mr Pincott of Counsel for the Crown and Mr Wilson of Senior Counsel for the accused.

Consciousness of guilt

3. The basic issue concerning the first matter is, given that this is a case raising what sometimes is referred to as the murder/manslaughter dichotomy, whether the evidence which has been led of events occurring after Mr Cleghorn received his fatal injuries can be left to the jury as evidence of guilt at all having regard to the judgments of Simpson J (as her Honour then was) in R v Sievers [2004] NSWCCA 463; 151 A Crim R 426 at [443] and Steer v R [2008] NSWCCA 295; 191 A Crim R 435 at [68]-[69].

4. It seems to me, notwithstanding the great weight one would normally place on Simpson’s J decisions in an area of evidence as it affects the criminal law, and acknowledging that I am bound by decisions of the Court of Criminal Appeal, that the current law is as stated by a unanimous High Court of Australia in The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 (“Baden-Clay”) at [74], where their Honours said:

“There may be cases where an accused goes to such lengths to conceal the death or to distance himself or herself from it as to provide a basis on which the jury might conclude that the accused had committed an extremely serious crime and so warrant a conclusion beyond reasonable doubt as to the responsibility of the accused for the death and the concurrent existence in the accused of the intent necessary for murder. There is no hard and fast rule that evidence of post-offence concealment and lies is always intractably neutral as between murder and manslaughter.”

The issue in this case also concerns whether, at the time he inflicted the fatal wound upon Mr Cleghorn, Mr Cliff had the specific intent necessary for the crime of murder.

5. When stating that principle in Baden-Clay, by a footnote, their Honours referred, inter alia, to a unanimous decision of a five-judge Bench of the Victorian Court of Appeal in R v Ciantar (2006) 16 VR 26; (2006) VSCA 263. The reference to that case is most instructive because in arriving at their unanimous conclusion the Victorian Court referred to their earlier, but then recent decision in R v Heyes (2006) 12 VR 401; [2006] VSCA 86 (“Heyes”) which, with respect, was to the same effect as the New South Wales decisions to which I have already referred. Their Honours decided at [40] that Heyes should not be followed. The Court said:

“We accept there may be some circumstances in which post-offence conduct is equally consistent with two or more possible offences or is otherwise intractably neutral. Where that is so, it may not be open, even on the totality of the evidence, to draw an inference that the accused had a consciousness of guilt of some particular conduct at the time he told lies or performed some act which the prosecution relies upon as constituting post-offence conduct. But where such lies or conduct are considered in the context of all of the evidence, it is not to be assumed that it will usually be so. Indeed, in the scheme of things, it is not likely to be so in many cases.”(Footnote omitted.)

Their Honours said (at [67]):

“Although the post-offence conduct may not be enough in itself to sustain an inference that an accused killed with intent to kill or cause really serious injury, as opposed to some lesser state of mind, such evidence, when combined with evidence of the accused’s words, and conduct before and during the killing and forensic evidence, may well satisfy the jury beyond reasonable doubt that the accused killed the deceased with murderous intent.” (Footnote omitted.)

6. This is such a case. The evidence led by the Crown extends to evidence of the accused’s words in the aftermath of the killing and much forensic evidence. And he has given evidence of his conduct before and during the killing. In the circumstances, it is a question for the jury to decide whether the evidence falls into that category referred to by the High Court in Baden-Clay at [74]; that is to say, whether the evidence of his post offending words and conduct is so out of proportion to the level of culpability involved in the lesser offence of manslaughter that it might be found by the jury to be more consistent with the more serious offence of murder.

7. I should simply record that the evidence falls into a number of categories which include lies told to various persons and, essentially, various elaborations of what might be referred to as evidence of flight. It is true that in respect of the initiation of the flight there may well be other explanations, including the fact that the accused was attacked by a neighbour, Mr Wade Garland, with a chain and Mr Garland’s dog. But it will become a question for the jury to decide whether, looking at the evidence proffered as a whole, the lies and flight are circumstances tending to prove the accused’s guilt of an intentional killing. Clearly, the case will call for what is referred to as an Edwards type direction where the jury will be reminded that the accused’s words and conduct may have an innocent explanation.

8. I was concerned about whether, given that it is common ground that the accused was not aware that the injuries he had inflicted had caused Mr Cleghorn’s death, this evidence could be evidence of guilt of murder. However, as I have said, the very substantial issue on the charge is whether the accused had the requisite intention for murder. In the decision of the Court of Criminal Appeal in R v Fowler [2003] NSWCCA 321 at [42] the Court said:

“Further, it was necessary for her Honour to instruct the jury that they might take the lie into account only if they were satisfied, having regard to those circumstances and events, that it revealed a knowledge of the offence or some aspect of it, and that it was told because the applicant knew that the truth would implicate him in the commission of the offence or because of ‘a realisation of guilt and a fear of the truth’.” (My emphasis.)

It seems to me that the words I have emphasised, “or some aspect of it”, are such that where, as here, the focus is upon the state of mind of the accused at the time of the infliction of the fatal injury, even though he was unaware of the demise of Mr Cleghorn until much later, his conduct is capable of constituting evidence of his intention at the time he delivered that fatal stab wound.

9. I propose to direct the jury about the use of post-offending lies and conduct in accordance with the written directions which I have discussed with counsel separately which I will mark for identification at the end of these reasons.

Extreme provocation

10. I turn then to the second issue, which is whether extreme provocation, as that partial defence is now known, should be left to the jury. The relevant legal test is not in doubt. It has been stated in various ways but for present purposes I think it can adequately be taken from the speech of Lord Tucker in Bullard v The Queen [1957] AC 635 at 644:

“Every man on trial for murder has the right to have the issue of manslaughter left to the jury if there is any evidence upon which such a verdict can be given. To deprive him of this right must of necessity constitute a grave miscarriage of justice and it is idle to speculate what verdict the jury would have reached.” (My emphasis.)

Although drawn from English jurisprudence, admittedly at a time when Australian courts regarded themselves as bound by decisions of the House of Lords, this dictum has been approved in New South Wales in Blackwell v R [2011] NSWCCA 93; 208 A Crim R 392 and Penza v R [2013] NSWCCA 21.

11. The Australian cases sometimes express the test as requiring the enquiry whether there is any viable case of an available partial defence. In James v The Queen (2014) 253 CLR 475; [2014] HCA 6 at [19], French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ said:

“The obligation to leave manslaughter in most, although not all, cases was identified by Barwick CJ as arising from the necessity to satisfy the jury of the elements of murder. This was so whether the element in issue was proof of the intention accompanying the unlawful and dangerous act causing death or whether the prosecution had negatived a partial defence.” (My emphasis.)

(See Gammage v The Queen (1969) 122 CLR 444; [1969] HCA 68 at 451.)

12. The elements of the partial defence of extreme provocation are set out in s 23 of the Crimes Act1900 (NSW). There are essentially four elements to be considered by the jury and it is sufficient if the Crown negative any one of them to the jury’s satisfaction beyond reasonable doubt. The four elements are contextualised for the purpose of the present case as follows:

1. Did Mr Cliff fatally stab Mr Cleghorn in response to conduct of Mr Cleghorn toward or affecting him; and

2. Did that conduct of Mr Cleghorn amount to a serious indictable offence; and

3. Did the conduct of Mr Cleghorn cause Mr Cliff to lose self-control; and

4. Could Mr Cleghorn’s conduct have caused an ordinary person to lose self-control to the extent of intending to kill or inflict really serious bodily injury on Mr Cleghorn?

Relevant evidence

13. As I have said, the accused has given evidence in his own defence and it is necessary to refer to some of that evidence for the purpose of these reasons. I will refer to evidence here which is also relevant to the next question of self-defence.

14. It is relevant to set out, without quoting from the evidence, that the accused’s evidence of what occurred leading up to him fatally stabbing Mr Cleghorn commences with a friendly discussion at 5 Acacia Street which at some point, according to the accused, descended into what might be styled acrimony with the accused insulting the deceased’s sister and mother, referring to them as “a slut” [sic] and the deceased apparently criticising the accused or, as the accused put it, “throwing up in his face” the fact that he apparently got the better of the deceased’s sister in a division of their property upon their separation. His evidence is that the accused then went outside to have a cigarette and there was some yelling by him demanding that the deceased look up a train timetable for him on the computer so the accused could leave Wagga Wagga. When he re-entered the home the accused said (at 806.38-15T):

“I ran back inside... I went through the foyer into the hallway and then I couldn’t see James in the lounge room. I turned back around and I was hit from behind… And someone had jumped onto my back, yes.”

The inference is that that was the deceased. The accused’s evidence is that he was hit with sufficient force to be winded. I infer this from him complaining about difficulty breathing. He said at 800.35T:

“When I was struck in the back I couldn’t breathe. He jumped onto my back. I remember head-butting him in the mouth. That knocked him off my back. I reached up onto the kitchen bench and I grabbed a knife.”

Initially he explained that he panicked and was confused. He said at 800.45T:

“I was just confused. I didn’t know what was going on. I had this guy yelling at me downstairs. I’d just been hit in the back. I just - I seen the knife next to the stove, I grabbed it.”

The “guy… downstairs” was a Mr Garland. Later at 809.08-16T the accused provides this evidence:

Q. …Now in the course of the struggle what did you think you were doing with the knife?

A. Partially - because I didn’t know what he had in his hand, I couldn’t see at that time, I remember just - I couldn’t breathe, I didn’t know what happened to me, I remember I had a lot of pain in my back, I couldn’t breathe but I knew I had control of the situation, I was a lot bigger than him and I know I’d used that knife out of - I don’t know if it’s really self-defence but partially just to protect - like to control the situation. I knew it [the situation] was bad, I knew the situation was getting out of control.”

Referring to earlier evidence I have not quoted here, he was asked:

Q. You said you lost control, is that right?

A. Me, I did, yes.

Q. Do you know why you lost control?

A. Could’ve just been the situation, could’ve been the drugs, it could have been me - because before this happened, when I was out on the veranda I had this guy yelling at me and then he had a dog and then as soon as I ran in, this happened, it just all happened really quick but to say what was going through my head I couldn’t pinpoint it for you.

In cross-examination he was asked (at 865.1-11T):

Q. But this morning you said you were in control because you were bigger?

A. I thought I had control of the situation before I grabbed the knife, but then I grabbed the knife.

Q. Well, how did you think you had control if you didn’t look back?

A. Because I was, like I said, I was bigger than him.

Q. So you could have controlled the situation really, without putting too fine a point on it, with your fists?

A. Well, I didn’t - I couldn’t breathe, like I said, I didn’t know what had happened to me.

At 870.23-29T he was asked:

“Q. …You say that you grabbing the knife then you thought it was self-defence?

A. Maybe not self-defence, but I just grabbed it because I was confused and a little bit scared.

Q. You were scared?

A. Not - maybe not scared, but confused more than - more than anything.”

He also said at 871.25T in answer to a question, perhaps non-responsively:

“A. Because I’d been attacked and I retaliated.”

But when asked about this at 875.12-27T the following exchange occurred:

“Q. I think before the luncheon adjournment Mr Cliff - I just want to wrap up some of the questions that I was asking you before that adjournment. It’s fair to say then is it that you regarded what you had done as retaliation?

A. Not retaliation, maybe self - lost control - but more confused, confusion, than anything.

Q. But you, before the luncheon adjournment, used the word retaliation, didn’t you?

A. After being hit you could use that in context, yes.

Q. But it’s the case isn’t it that when you retaliated with the knife the threat that James had posed had passed?

A. It may have, yes.

Q. Well, how was it that you retaliated when the threat had passed?

A. Like I said I lost control.”

Decision about extreme provocation

15. It may be said that loss of self-control in response to conduct of the deceased is of the essence of the defence of extreme provocation. It may be said that, to put it in positive language, that is a necessary but insufficient condition of the availability of the partial defence. I bear in mind that that evidence has been given and it becomes a matter for the jury to assess the evidence of the accused which, in common with the evidence of all other witnesses, they are entitled to accept or reject either wholly or in part. It is not for the Court to second guess their decision in that regard.

16. It seems to me that there is some evidence, being the evidence of the accused, that he did fatally stab Mr Cleghorn in response to conduct of Mr Cleghorn towards or affecting him, if the jury accept that evidence. There is also some evidence that the conduct caused the accused to lose self-control, again, if the jury accept it.

17. I was concerned that there was no evidence that would enable me to direct the jury that Mr Cleghorn’s conduct amounted to a serious indictable offence. I have been persuaded, however, that there may be some evidence from which they can draw that inference. Mr Wilson drew to my attention, or reminded me, not only of the evidence which I have set out, which included being hit with sufficient force to be winded and to feel some pain, but also medical evidence in the form of a discharge summary from the Wagga Wagga Rural Referral Hospital. This evidence indicates that on the night of Mr Cleghorn’s death the police took the accused to the hospital where he complained of pain and specifically on his side or back. A diagnosis was made of a soft tissue injury with possible rib fracture. There is certainly other evidence that could account for such an injury, including, no doubt, being struck from behind with the chain that Mr Garland used; and perhaps some injury caused in what must have been his athletic getaway, clambering over many fences and exerting effort and strain to break into Ms Lipu’s house and then her garage. The jury will have to conjure with all of that evidence.

18. However, can it be said that there is simply no evidence that the conduct of Mr Cleghorn amounted to a serious indictable offence? Reluctantly, I confess, I have come to the conclusion that there is some evidence, being more than a mere scintilla, that the conduct of Mr Cleghorn, if the evidence of the accused is accepted as at least being a reasonable possible version of events, amounted to the serious indictable offence of assault occasioning actual bodily harm.

19. I turn to the question of whether Mr Cleghorn’s conduct would cause an ordinary person to lose self-control to the extent of intending to kill or inflict really serious bodily injury on Mr Cleghorn. It seems to me that the law in that regard probably is reflected by the judgment of Wilson J in the Canadian case of R v Hill [1986] 1 SCR 313 at 343, adopted by McHugh J in Masciantonio v The Queen (1995) 183 CLR 58 at 72. Notwithstanding the recent change in the law of New South Wales, I think the dictum of Wilson J remains apposite. His Honour said:

"The objective standard, therefore, may be said to exist in order to ensure that in the evaluation of the provocation defence there is no fluctuating standard of self-control against which accuseds are measured. The governing principles are those of equality and individual responsibility, so that all persons are held to the same standard, notwithstanding their distinctive personality traits and varying capacities to achieve the standard."

If anything, I think that that test is now even more applicable under the current form of the New South Wales legislation which has done away with the subjective aspect of this element of the defence.

20. It is obvious that part of Mr Cliff’s own explanation for his loss of self-control relates to what he puts forward as his self-induced drug intoxication, which the jury will be directed to disregard; and it is obvious that the ordinary person would not be so affected. However, those are essentially jury questions and, given that there is some evidence which may cause the jury to decide that the Crown have not negatived extreme provocation beyond reasonable doubt, I am compelled by law to leave the matter for the jury’s consideration, and I will do so.

Viable case of self-defence?

21. I finally then turn to the issue of self-defence. I have already set out the evidence of Mr Cliff about this matter. I need to say in regard to the evidence before me, that Dr Cala, an eminent forensic pathologist who gave forthright, no-nonsense evidence about the nature of the injuries inflicted, counted forty-seven separate injuries inflicted on Mr Cleghorn by Mr Cliff, not all of which were inflicted by Ex B (the knife). But the vast majority of were. Indeed, amongst the other bruises and abrasions were some significant bruises to the top of Mr Cleghorn’s head which, according to the expert, bespoke at least the application of moderate force. Given the nature of the conduct implicit in the injuries I have described, if indeed it was conduct that Mr Cliff believed was necessary for his self-defence, it is not reasonably open to anyone to argue that his response to any perceived threat was by any stretch of the imagination reasonable. I acknowledge that these matters are normally questions for a jury. I also acknowledge that Mr Wilson has informed me that he only intends to address the jury, if the matter is to be left to them, on the basis that the partial defence of excessive self-defence is available, consistent with the plea I have already referred to.

22. There are two questions that the jury must consider when self-defence is left for their consideration. They are: first, “are you actually satisfied beyond reasonable doubt that Mr Cliff did not genuinely believe that stabbing Mr Cleghorn was necessary in order to defend himself?”; and, secondly, “are you actually satisfied beyond reasonable doubt that what Mr Cliff did was not a reasonable response in the circumstances as he perceived them?”

23. It seems to me, having summarised the evidence of Mr Cliff above there is simply no evidence that Mr Cliff genuinely believed that stabbing Mr Cleghorn was necessary in order to defend himself. He but slightly raised self-defence in his own evidence. And, as I understand the evidence, when challenged about it, he disavowed reliance on self-defence, referring to a loss of self-control, relevant not to self-defence but to extreme provocation. Moreover, he volunteered a description of his conduct as “retaliation” and the law, I think, at least in practical terms, recognises a clear distinction between acting in self-defence and retaliating to the conduct of another.

24. For these reasons, I am satisfied that there is no viable case of self-defence, excessive or otherwise, to leave to the jury. I decline to direct them in relation to that matter. My decision is, then, that the Crown may rely upon the evidence of post-offending conduct as evidence of guilt, and I will leave the partial defence of extreme provocation for the consideration of the jury.

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Decision last updated: 28 February 2018