R v Curran - [2008] SASC 30

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v CURRAN
[2008] SASC 30
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Nyland and The Honourable Justice Bleby)
20 February 2008
CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - CORROBORATION - WHAT CONSTITUTES CORROBORATION - ADMISSIONS AND CONDUCT OF ACCUSED
Appeal against conviction for murder - evidence led of disposal by appellant after alleged offence of items said to be connected with the offence - whether evidence required direction similar to that prescribed in Edwards v R (1993) 178 CLR 193.
R v Nguyen (2001) 118 A Crim R 479; Conway v R (2002) 209 CLR 203; R v Ciantar [2006] VSCA 263, discussed.

EVIDENCE - COURSE OF EVIDENCE AND ADDRESSES
Reference by prosecutor in final address to failure of appellant's counsel to cross-examine prosecution witnesses on certain topics - whether trial judge should have directed the jury on possible explanations for such failure which did not reflect adversely on the conduct of the appellant's case.
Appeal dismissed.
R v Manunta (1990) 54 SASR 17; R v Singh (2003) 86 SASR 473, discussed.

R v CURRAN
[2008] SASC 30
Court of Criminal Appeal: Duggan, Nyland and Bleby JJ
DUGGAN J.

The appellant has appealed against his conviction on a charge of murder. The information upon which he was presented for trial alleged that, on 18 March 2005, at Prospect he murdered Leila Maree Drapes.
The prosecution alleged that the appellant, Ms Drapes and her defacto partner, Philip Owen, were involved in manufacturing and selling amphetamines. It was further alleged that the killing of Ms Drapes arose out of her association with the appellant in these activities. The case against the appellant was circumstantial in nature. There were eyewitnesses to the incident during which Ms Drapes was killed, but they were unable to identify the assailant.
Ms Drapes was stabbed to death in Ballville Street, Prospect which runs off Main North Road. The Windmill Hotel is located on the corner of Main North Road and Ballville Street. There is a car park at the rear of the hotel and one of the entrances to the car park is located in Ballville Street.
At approximately 11.00 pm on Friday 18 March 2005 a resident who lives adjacent to the car park saw a man chasing a woman along Ballville Street towards Main North Road after the couple had got out of a vehicle which was parked in Ballville Street near the entrance to the car park. The woman was screaming and she was eventually pulled to the ground by the man opposite the entrance to the hotel car park.
Two men, Mr Stott and Mr Boys, who arrived at the scene independently of each other, also saw the man and the woman on the ground. They were struggling and the man appeared to be punching the woman. Mr Boys called out to the man who threatened him with a knife.
The police and an ambulance were called and the man ran from the area. The woman, Ms Drapes, died at the scene. Her jugular vein and carotid artery had been severed.
The appellant was first spoken to about the matter by the police on 20 March 2005. At first he told them that the last time he had spoken to Ms Drapes was during a telephone conversation at about 7.30 pm on the Friday evening. He said that he had spent the evening at home.
However, during a video-recorded interview held on the same day, the appellant told the police that he had last seen Ms Drapes on the Friday evening when they had a drink at a café in Tynte Street, North Adelaide between 10.30 pm and about 10.50 pm or 11.00 pm when they parted company. He denied any knowledge of the incident which led to her death.
As part of its circumstantial case the prosecution led evidence of motive based on alleged ill feeling between the appellant on the one hand and Ms Drapes and Mr Owen on the other. On the day Ms Drapes was killed there was an assault on a business associate of the appellant, Mr Slater. The person who assaulted Mr Slater gave him to understand that it was because of something which Ms Drapes had said about Mr Slater which also reflected on the appellant. Mr Slater gave evidence that earlier in the evening on which Ms Drapes was killed he informed the appellant of the assault on him and what was said by the assailant about Ms Drapes.
As previously stated, the appellant eventually admitted that he was in Ms Drapes’s company a short time prior to the attack upon her. Evidence was led which pointed to the appellant ringing Ms Drapes not long before she went to the café which was only a short distance from the location where she was attacked.
The prosecution also alleged that the appellant disposed of a shirt he was wearing at the time he was with Ms Drapes on the evening of her death. The appellant had injuries which he claimed were caused when he fell over at his house on the evening of the alleged offence, but which the prosecution contended were the result of an attack by him on Ms Drapes. Other matters relied upon as part of the prosecution case are referred to later in these reasons.
The appellant denied in evidence at the trial that he was involved in drug dealing. He denied any animosity between himself and Ms Drapes and her partner. He admitted that he was with Ms Drapes a short time before her death but he said they went their separate ways after leaving the café and he did not see her again. He said that on the Friday he had spoken to Mr Owen on a number of occasions during the day about a car that the appellant was selling. He agreed that Mr Slater rang him and told him about the assault on him, but he denied that Mr Slater had discussed the reasons for the assault or that Ms Drapes’s name was mentioned by Mr Slater in relation to the assault. He agreed that he met Ms Drapes during the evening after he suggested that they might catch up and have a drink. He said that when speaking on the telephone that evening they arranged to go to the café in Tynte Street.
According to the appellant they did not speak about the assault on Mr Slater when they were at the café and there were no disagreements between them during this meeting. He said that eventually Ms Drapes said she had to go and meet somebody and they parted company.
Grounds 1 to 4 – the knife collection
Grounds 6 and 7 – the shirt
The prosecution alleged that on the day following Ms Drapes’s death the appellant removed from his home some knives which were part of a collection of knives. It was suggested that, in doing so, he was removing evidence which might incriminate him in the offence. Evidence was also led to establish that the appellant disposed of a white shirt which he was wearing on the Friday night and at the time he was with Ms Drapes. Again, the suggestion was that he disposed of evidence which might incriminate him.
Ground 1 of the grounds of appeal complains of the prejudicial effect of the evidence that the appellant had a collection of knives. It states:
The Trial Judge erred in permitting evidence to be led of the appellant’s knife collection as the evidence was prejudicial and there was no link advanced between the weapon used to kill the deceased and any of the knives.
There was insufficient evidence of removal of the knives on Tuesday (sic) morning to overcome the prejudicial nature of the evidence of the knives.
It is necessary to summarise the evidence in relation to the knives in order to deal with this and other grounds of appeal.
Mr Boys said that when he approached the man and the woman at the scene, he thought he told the man to “back off” or “get away”, which the man ignored. The man then menaced Mr Boys with a knife which “looked curved in nature”. Mr Boys said the knife did not look like a kitchen knife or a fishing knife. It was “big, curved”. According to the witness, the knife did not appear to be “top quality” and had an aluminium appearance.
Ms Wardle, the appellant’s former partner, said in evidence that she and the appellant started collecting knives when they were living together. She said they collected antique knives to be passed on to her son when he was old enough. She also said that, while living together at Methuen Street, Fitzroy there was another collection of knives in the house which she referred to as “fantasy art knives”. There were eight to twelve of these knives and they belonged to the appellant. The witness said that the antique knives were for show, but the fantasy knives were dangerous.
According to Ms Wardle, she took the fantasy knives and stored them in an empty shop at 78 Prospect Road when she left Metheun Street in December 2004. She took the antique knives with her when she went to live at Hamley Bridge. She did not see the fantasy knives again.
The witness Ryland, who was an acquaintance of the appellant, said that the appellant kept the collection of fantasy knives at the Prospect Road premises. There were ten or twelve knives in the collection. Ryland said that on the Saturday after the alleged offence he received a telephone call from the appellant who asked him to come around to the appellant’s place at Walter Street, North Adelaide. He said that the appellant was packing his belongings into some bags and he noticed at the top of one of the bags a white cardboard box which was similar to the boxes in which the appellant had kept the collection of fantasy knives. He did not see a knife or knives on this occasion. He said he helped the appellant carry the bags out to the cars which were parked outside. They were loaded into the cars which were driven to a shed at Wingfield.
The appellant said in evidence that he had nothing to do with the disposal of any knives after the night on which the deceased was killed. He said he had no idea what eventually happened to the fantasy knives. When he made enquiries he was told they were no longer at the shop on Prospect Road. He denied that any knives were in the bags or equipment put into the cars on the Saturday when Mr Ryland came to his home.
In his address to the jury the prosecutor posed a number of questions arising from the circumstantial case for the consideration of the jury. In the course of doing so he said:
The ninth question is: Did the accused dispose of his fantasy knives on or about 19 March or were they stolen or did they somehow just disappear from 78 Prospect Road?
Later he said:
Mr Ryland said he didn’t see the knives but he saw the packets in which he had previously seen those knives put away in suitcases. The accused denies that. He says he left the fantasy knives that he had over some time and at some expense collected at 78 Prospect Road and then just allowed them in a sense to disappear, never contacted the owner, never went back there to get them, was eventually just told by Mr Nguyen that there was nothing in the shop. The accused said he didn’t then report the knives as being stolen or make any attempts to find or track them down. Again, ladies and gentlemen, is that something you would have expected a person like the accused simply to have done? Did they simply float off and go missing or is it the case that they had been packed away and put away and out of the police’s hands?
Defence counsel submitted to the jury that the description of the knife at the scene of the killing did not fit that of the fantasy knives described by various witnesses. He pointed out that Mr Ryland had seen a box but he did not see any knives. He added:
As interesting as it may have been as a side issue in looking at all of the evidence in this case, it’s hardly a matter relevant to anything of critical importance. There is no suggestion, on the description given by Mr Boys, that a fantasy knife, or anything that might be described in such terms was the weapon that killed Ms Drapes. The fantasy knives as they have been described by the various witnesses, have been long-bladed with decorative pieces on them, sometimes multiple blades, boxed up and ornamental in shape or in style. Not only did they not fit with the size of the weapon that is described by Mr Boys and by the pathologist, but you might just think that they are not the sort of weapon that a person would somehow conceal while they walk around to Caffè Paesano in jeans and a shirt and trousers and sit and walk up and back to the bar …
The trial judge referred to the knives in her summing-up. She warned the jury about drawing an inference adverse to the appellant from his possession of the knives. Her Honour said:
I give you a similar direction about the evidence which indicates that the accused had an interest in and collected knives of an unusual type. Now, simply collecting knives is not a criminal offence, but you might associate knives with criminal activity. That evidence is before you to demonstrate that the accused might have had access to a knife with a curved blade, such as Mr Boys said he saw in the offender’s hand. And also, because there is a suggestion that on the morning after the killing the accused might have been moving knives away from Walter Street. Those are proper matters for you to consider. However, you should not draw any adverse inference against the accused by reason of the fact that he had an interest in knives. Do not let any natural disinclination you might have towards knives of the type of which we have heard affect your deliberations in the case.
Later her Honour said:
Mr Kourakis submitted it is strange that the accused would allow his knives to go missing from Prospect Road and not chase them up and suggested, in accordance with the implication from the evidence of Mr Ryland, that the accused packed up his knives at Walter Street on the Saturday morning.
In my view, the knives had quite limited probative value. The knife as described by Mr Boys was curved, but it could not be identified as one of the knives which came from the collection. The most that could be said was that the appellant had access to knives which were of an unusual nature. One or more of them could have fitted the description of the knife described by Mr Boys, but only in a general way. The evidence as to the possibility of knives being removed from the appellant’s house on the day after the alleged offence was not strong. As has been pointed out, Mr Ryland did not see any knives, only a box similar to that in which they had been kept. The prosecution claimed that its argument was strengthened by the fact that the fantasy knives could not be found. However, the appellant said they had gone missing from the shop at Prospect Road.
Nevertheless, the fact that the evidence had some probative value justified its admission and I would reject the argument that the probative value of the evidence was outweighed by any prejudicial effect. The possession of a collection of knives such as this could not be regarded as having a tendency to reflect adversely on the appellant’s character in any relevant sense. I would refuse permission to appeal on ground 1.
Grounds 2, 3 and 4 complain of misdirection and non-direction by the trial judge in relation to the knives. These grounds are as follows:
2The Trial Judge erred in directing the jury that one relevance of the evidence of the knife collection was that “there is a suggestion that on the morning after the killing the accused might have been moving knives away from Walter Street”.
3In the alternative, the Trial Judge erred in failing to instruct the Jury as to how to use evidence that the accused “might have been moving knives away from Walter Street”.
4The Trial Judge erred in failing to direct the Jury that before they could use the evidence of the possession or disposal of knives by the accused as evidence of guilt, they would have to be satisfied that one of the knives possessed was the weapon used in the killing of the deceased.
It is convenient to discuss these grounds in conjunction with the grounds relating to the alleged disposal of the white shirt. Grounds 6 and 7 are as follows:
6The Trial Judge erred in directing the Jury that, “It is the fact of the missing shirt and the failure to account satisfactorily for not producing it – if you find that is a failure – which would raise the spectre of his having disposed of it because he knew it would implicate him in the crime”.
7The Trial Judge erred in failing to direct the Jury that they could not use the failure to account satisfactorily for not producing the shirt or for lying about its fate unless they were satisfied that there was no other explanation for not producing it other than implication in the crime.
There was evidence that the appellant was wearing a shirt which was predominantly white in colour on the night of the alleged offence. In particular, video footage taken by a security camera shows the appellant wearing a white shirt a little over an hour before the alleged offence.
When first interviewed by the police on the evening of Sunday 20 March 2005, the appellant said he was wearing a blue shirt on the evening of the alleged offence. He said that the clothing he was wearing was still at home. After being informed that the clothing would be seized, the appellant was taken to his home and he identified to the police officers the clothing he said he was wearing on the Friday evening. The items of clothing included a blue shirt which was hanging on a doorknob.
The appellant was interviewed again on 8 April 2005. He was shown a still photograph taken from the video footage of the security camera to which reference has been made. The photograph showed the appellant wearing a white shirt. When asked to comment, the appellant said:
Look I’ve got no comment at all to make, the shirt that I gave you is the one that took off (sic) when I got home on Sunday night – Saturday night.
A further search of the appellant’s home failed to locate the white shirt.
In the course of the search the appellant said that the white shirt may have been in some washing which he took to a laundromat. The appellant then accompanied the police offices to the laundromat, but the shirt was not there.
When giving evidence the appellant said that when he was shown the photograph taken from the video footage during the interview with the police he was shocked because he honestly thought that he had given the shirt he was wearing on the Friday night to the police. He said he realised he had given them the wrong shirt. He agreed that he was wearing a white shirt on the Friday night.
The appellant said in evidence that, after he returned home from the café on the Friday night, he drank a large quantity of alcohol and, at one stage, he coughed and then vomited over the white shirt he had been wearing. He said he took the shirt off and rinsed it. He then put it on a clothes line at the end of the driveway to his house. After that he said it was likely he put on the blue shirt which he had later handed to the police. He said that he pointed out the blue shirt to the police because it was hanging on the doorknob and it was his practice to put the shirt he had been wearing there before he went to bed if he was also going to wear it the following day. The appellant said that on the Saturday he did not look for the white shirt he had washed because he forgot about it. He did not see it again. He agreed in cross-examination that the only thing he could think of that happened to the shirt was that it was stolen.
The learned trial judge reminded the jury of the statements which the appellant made to the police and in evidence concerning his clothing. She said:
Next, and the prosecution says importantly, there is the accused’s statements as to the clothing he was wearing on the Friday night. In his first interview with the police he nominated a blue shirt, a pair of jeans and some black shoes. On the 8th of April 2005, when he was shown the photographs P57 by police, he maintained that he was wearing the blue shirt. In evidence, in answer to Mr Kourakis, he said that when he looked at the photographs he did realise that in fact he had been wearing the white shirt. But to police on 8th April he said that the white shirt might be at the laundromat. He said he was sure he had worn that shirt since. Samantha Wardle was there at Walter Street on the 8th of April. She said that some time after the police visit the accused told her he had vomited on that shirt and taken it to the laundromat. Of course, to you he explained that he had vomited on it, rinsed it, hung it on the line and never seen it again.

After directing the jury that lies in relation to this or any other issue in the case were relevant only to credibility and not evidence of guilt, her Honour continued:
Now I wish to focus more closely on two of the topics of suggested lies that I have just mentioned, being the injuries that the accused sustained and the clothing he was wearing on the Friday night. Mr Kourakis has attached great significance to both these topics.
Let me start by stating the obvious. It is common ground that the shirt that the accused was wearing when he met with Ms Drapes has not been produced to the police by the accused. The accused has given his explanation to you for his failure to produce that shirt. It is for you to evaluate that explanation. If you reject it then, as I said, the accused’s lies on this topic can affect his credibility but do not amount to additional evidence of guilt. What it would mean though, if you were satisfied that he lied in relation to the shirt, is that there would be no satisfactory explanation for his failure to produce the shirt. If you reject the proffered explanation then the fact that the shirt is missing would be unexplained by the accused. Moreover, if the accused disposed of the shirt then he did so at a time prior to the police interview, that is, before he knew police suspicion was levelled at him. It is the fact of the missing shirt and the failure to account satisfactorily for not producing it – if you find that that is a failure – which would raise the spectre of his having disposed of it because he knew it would implicate him in the crime.
It is apparent from these directions, particularly the reference to disposing of the shirt because of knowledge it would implicate the appellant in the crime, that the evidence was being left as evidence of consciousness of guilt.
It was submitted on the hearing of the appeal that the trial judge should have given further directions to the jury in relation to the evidence led concerning the knives and the shirt. Both were led as evidence of the guilt of the appellant. It was argued on appeal that the trial judge should have directed the jury on evidence of consciousness of guilt along the lines referred to in Edwards v R[1] but adapted to these instances of post-offence conduct.
[1] (1993) 178 CLR 193.
There is a significant body of authority, much of it emanating from Victoria, which emphasises the relevance and importance of such directions in appropriate cases. In Nguyen[2], where the issue was the intention which accompanied a shooting by the accused, Winneke P (Chernov JA and Smith AJA concurring) said:[3]
The probative strength of post-offence conduct, such as concealment of weapon or flight, with or without “covering lies”, will depend upon many factors including the circumstances in which the conduct occurred and the issue in proof of which the evidence is tendered. If it is open to be used by the jury for the purpose of drawing an inference as to the state of the accused’s mind at the relevant time, the conduct will have to be assessed in the light of the probabilities.[4] But, because such evidence is capable of being misused by the jury, the interests of a fair trial to the accused require, as I think they required in this case, a careful direction from the trial judge of the type referred to in Edwards.[5] Such a direction should have involved a specific identification by the trial judge of the conduct being relied upon by the Crown to prove murderous intent; a direction that they could only use such conduct as proof of guilt if they were satisfied that there was no other explanation, consistent with innocence for it; and that the accused only engaged in the conduct because he knew that revelation of the truth would implicate him in the offence charged. Properly directed, the jury should also have been told that conduct such as that relied upon by the Crown could stem from reasons other than realisation by the accused of his guilt of the crime charged, what those other reasons might be, and that, if they accepted that a reason of that kind was the explanation for the conduct, they should not use the evidence as probative of guilt.[6]
See also Conway v R[7] and R v Ciantar[8].
[2] (2001) 118 A Crim R 479.
[3] Ibid at 489.
[4]    cf. Broadhurst [1964] AC 441 at 451.
[5]    See also Faure [1999] 2 VR 537 at 546 [28] per Brooking JA; White at 404; Renzella [1997] 2 VR 88 at 92.
[6]    Edwards at 210-211; 361-363 per Deane, Dawson and Gaudron JJ; Osland (1998) 197 CLR 316 at 333 per Gaudron and Gummow JJ.
[7] (2002) 209 CLR 203 at 237.
[8] [2006] VSCA 263.
In the present case, the trial judge did not direct the jury along the lines suggested by Winneke P in Nguyen. The question which arises on the grounds of appeal relating to the knives and the shirt is whether there has been a miscarriage of justice because of a possibility that the jury misused the evidence on both or either of these topics in such a way as to affect their verdict: Dhanhoa v R[9].
[9] (2003) 217 CLR 1 at [60].
In my view, the claimed relevance of the evidence in relation to the knives and the shirt, the pre-conditions for its use in the manner suggested by the prosecution, and the prosecution and defence arguments would have been apparent to the jury and understood by them.
The evidence itself was clearly defined as a result of the conduct of the trial. The purpose for which the evidence was led was obvious. It was argued that the appellant disposed of the knives and the shirt because those items might have incriminated him. The defence response was also clear and straightforward. The appellant denied moving the knives and disposing of the shirt.
If the jury considered the appellant’s version to be a possible explanation they would not have used the evidence for the purpose suggested by the prosecution. If, despite the appellant’s denial, the jury accepted that he moved the knives or disposed of the shirt, it was open to them to conclude that he wanted these items out of the way because they might implicate him in relation to the offence.
The evidence relating to the shirt was of much more significance than that relating to the knives. The jury were directed that the significance of the disposal of the shirt would only arise if they rejected the appellant’s explanation. They were told that this would leave the missing shirt unexplained and would give rise to the question whether the appellant disposed of it because he knew it would implicate him in the crime.
It is true that her Honour did not specifically invite the jury’s attention to the question whether, in the event that they did reject the appellant’s version, there might have been other reasons for its disposal consistent with his innocence. However, in the light of the appellant’s detailed evidence as to what he said happened to the shirt, the existence of some other explanation for its disposal consistent with innocence which had not been put forward by the appellant was highly unlikely. In other words, there was not, in my view, the equivocality in the evidence which gives rise to the need for a direction in accordance with Edwards’ case.
It would have been better if more was said by the trial judge in her directions on these issues. However, when regard is had to the evidence, the submissions of counsel and the summing-up, I think it highly unlikely that the jury would have misapplied the evidence by taking it into account as probative of guilt unless they were satisfied that, in each instance, the appellant deliberately hid or disposed of material which could implicate him.
The experienced senior counsel who appeared for the prosecution and the defence did not ask the trial judge to add to her directions on this topic. This would not prevent interference by an appellate court in the event of a real risk of miscarriage of justice. However, it does support the conclusion that the proper use of the evidence had been identified for the jury in the course of the trial.
A further point was raised in relation to the shirt. It was argued that the trial judge’s reference to failing to account satisfactorily for not producing the shirt was misleading and gave rise to the suggestion of an onus on the appellant.
If an explanation is put forward by an accused person in relation to evidence which is capable of being regarded as incriminating and the accused’s explanation is rejected or the evidence is otherwise unexplained, it may be open to the jury to more readily accept the contention that the evidence is incriminating. This is not to cast an onus on an accused person; it merely draws attention to a factor which is relevant to consider when assessing circumstantial evidence. In my view, the directions did no more than convey this to the jury.
It should also be noted that the trial judge did not suggest that the evidence left unexplained would necessarily lead to a conclusion adverse to the appellant. Her Honour said it would “raise the spectre of” conduct implicating the appellant.
In my view, the directions which the trial judge gave in relation to the knives and the shirt and the failure to give the further directions referred to in the appellant’s argument on appeal did not result in a miscarriage of justice.
I would refuse permission to appeal on grounds 2, 3 and 4 and dismiss the appeal on grounds 6 and 7. Ground 5 was abandoned.
Ground 8 – the injuries
The prosecution relied upon injuries to the appellant as part of its circumstantial case. These injuries were mainly to the knuckles of the appellant’s right hand, the palm of his left hand and to his right knee.
The appellant told Ms Wardle and the police when they first questioned him that the injuries were caused when he tripped over a hose in his driveway while he was carrying a bottle of vodka. He said the fall occurred at about 5.00 pm when it was still light. The witness later said the appellant told him he had fallen over a hose in the driveway and broken a glass which was in his hand.
In evidence, the appellant said that the fall in the driveway occurred at about 11.00 pm after he returned from the meeting at the café with Ms Drapes. He said that when he fell he was holding a vodka bottle by the base. He said his knuckles were grazed when he fell trying to save the bottle. [Injuries in photo P 20]
The trial judge referred to the injuries in her summing-up:
Then the injuries. It is entirely up to you to evaluate the accused’s explanation for the injuries. If you reject his explanation then the injuries remain unexplained. The prosecution suggests the injuries are referable to the murder; that there is no innocent explanation for them.
If you reject the accused’s explanation then it is not the rejection of it which amounts to any evidence against the accused but rather, that the cause of the injuries would then be unexplained and perhaps sinister.
Objection is taken to these directions. According to the argument, the trial judge thereby invited the jury to find that the mere fact the injuries were unexplained provides support for the prosecution case.
The prosecutor spent some time explaining the significance of the appellant’s injuries to the jury. He pointed out that, on the appellant’s version, they were incurred at about the same time as Ms Drapes was killed. He argued that they were more consistent with a violent struggle on the rough surface of the footpath than a fall from tripping over a hose.
The trial judge did not repeat in detail these arguments, but in the impugned passage she reminded the jury that the prosecution alleged the injuries were referrable to the murder and that there was no innocent explanation for them.
In my view the jury would not have understood her Honour to be suggesting that the injuries might take on a sinister character simply because their cause was unexplained.
I would dismiss this ground of appeal.
Ground 11 – failure to adequately direct on the prosecutor’s comments on failure to cross-examine
Ground 11 states that, in his cross-examination of the appellant and in his final address to the jury, the prosecutor referred to various instances where counsel for the appellant had not cross-examined the prosecution witnesses on certain topics. According to the argument, this should have been the subject of comment by the trial judge to the jury in accordance with the following observations made by King CJ in R v Manunta: [10]
I have been concerned about the prominence which the learned judge gave to these matters in the course of the summing up. It is legitimate, of course, to draw appropriate conclusions from counsel’s failure to put in cross-examination some matter to which his client or his witnesses subsequently depose. It is a process of reasoning, however, which is fraught with peril and should therefore be used only with much caution and circumspection. There may be many explanations of the omission which do not reflect upon the credibility of the witnesses. Counsel may have misunderstood his instructions. The witnesses may not have been fully co-operative in providing statements. Forensic pressures may have resulted in looseness or inexactitude in the framing of questions. The matter might simply have been overlooked. I think that where the possibility of drawing an adverse inference is left to the jury, the jury should be assisted, generally speaking, by some reference to the sort of factors which I have mentioned. Jurors are not familiar with the course of trial or preparation for trial and such considerations may not enter spontaneously into their minds. Whether such matters should be brought to the attention of the jury and the manner in which that should be done are matters for decision by the trial judge in the atmosphere of the trial. I must say that the points raised with the jury based upon the failure to cross-examine do not seem to me to possess much weight. They were explained to the jury, however, quite fairly and their weight was a matter for the jury. I do not think that any error has been demonstrated.
See also R v Singh[11].
[10] (1990) 54 SASR 17 at 23.
[11] (2003) 86 SASR 473 at 509.
The trial judge commented to the jury on the role of defence counsel in this respect, but counsel for the appellant has submitted that her Honour’s directions did not adequately reflect the directions suggested in Manunta’s case. Her Honour said:
There is a matter of procedure which I think I should explain to you because there has been an amount of comment about it during the trial particularly in the cross-examination of the accused by Mr Kourakis and in his address. It is the matter of putting instructions. It is sometimes thought by members of the public that barristers make up defences for their clients. That is quite wrong. Counsel act on the instructions which their client gives them, instructions which are taken by their solicitors and passed on to counsel. The defence which is presented in a court is the presentation of those instructions. When I say “instructions” I just mean the account which the person accused of a crime gives. Counsel have quite strict duties regulating their conduct, and one of those arises in cross-examination. The rule is that if the opponent’s witness gives evidence of an incident and counsel’s instructions as to that incident are in conflict with the witness, then counsel must put to the witness his client’s version of the incident. You have seen Mr Griffin do this on many occasions. It is usually done by saying something to the witness like “I suggest to you that it was Monday not Tuesday” or “I put it to you that it was Monday not Tuesday”. This rule serves at least two purposes. For a start, it means that the witness who is to be contradicted has the opportunity to consider the different version and either accept it or reject it. Additionally, it puts the opposing side on notice as to what the case of the other side is. And so you will see that just as it was not suggested to Detective McEachern that his account of the initial conversation with the accused was wrong, so in giving evidence the accused did not suggest that McEachern’s account was wrong. Similarly, just as it was put to Mr Slater and Ms Wardle that there were no shotguns at the front and back doors of the house on the Saturday morning, so in his evidence the accused said that there were no shotguns there.
Now an accused person can only give instructions as to what he claims to know. That is fairly obvious. If Mr Curran did not kill Ms Drapes, and was in fact at home at Walter Street when the killing occurred, then he cannot know who did kill her. Consequently, it would have been quite improper for Mr Griffin to put to Mr Day or to Mr Slater that they were the killers. If you understood Mr Kourakis to suggest that that failure indicated some sort of defect in the defence case, then you should disregard that suggestion.
It is necessary to refer to the passages in the cross-examination and the prosecutor’s address which were drawn to the court’s attention in relation to this ground.
I begin with the final address.
When anticipating a submission that Ms Drapes’s partner Mr Owen might have killed her, the prosecutor said:
I turn, ladies and gentlemen of the jury, to Phil Owen because it can be anticipated that it will be suggested that Phil Owen might have killed Leila Drapes. Mind you, it wasn’t actually put to Phil Owen that he’s done any such thing. It was left to me to do that in re-examination because of a hint that had been left hanging in the course of cross-examination about that. But, in any event, let’s go down and look at the objective facts concerning Phil Owen and whether he could have killed Leila Drapes.
In a similar manner, the prosecutor rejected any suggestion that Mr McAllister, an acquaintance of Ms Drapes, might be responsible for the murder. He said:
Can it seriously be suggested that Scott McAllister remains as a suspect? We know that he made phone calls at or received phone calls and made them at 2352 and 2354 at Bolivar. He was back at a place where he could make calls through the Bolivar base station by about 5 minutes to 12.
What is to be assumed here? Again, I say it wasn’t put to Scott McAllister that he had in any way done any of those things, so it would be quite fanciful to even ask ourselves about them in some senses, but what might be suggested and thought? (emphasis added)
The comments that it had not been put to these witnesses that either was the killer were made in passing and it was not suggested that any inference should be drawn from the fact that they were not cross-examined on this issue. In the passage quoted from the summing-up the trial judge explained to the jury why no such inference could be drawn.
The prosecutor then made a submission to the jury about the appellant’s explanation for a series of telephone calls he had with Ms Drapes and Mr Owen on 18 March 2005. The appellant said in evidence that he had a number of telephone calls with them on this day. He said they were in relation to the sale of a motor vehicle which he owned. It was the prosecution case that the calls were related to some drug activities in which the three were involved.
When dealing with this topic in his address, the prosecutor referred to the evidence of Mr Owen. Mr Owen was asked whether he agreed that “shortly before Leila’s death you may have had a conversation with Mr Curran in which you said that you might have a buyer for the Mercedes. A: It’s highly possible.”
The prosecutor then commented on this evidence:
Of course, in the way the question was put, that there might have been some indeterminate time before Leila’s death a discussion about the buying of a Merc, understandably Phil Owen’s (sic) says “Well, highly possible” or “highly probable”. What is not put to Phil Owen is there was a whole series of calls backwards and forwards with the deal being off, then the deal going back on with Phil Owen telling the accused that Leila had more detail “phone Leila”, all that sort of evidence, which only came out in the accused’s evidence, none of that was suggested to Phil Owen and I suggest the reason for that is this whole story is a bit of a moving feast to fit the circumstances.
In fact, following the cross-examination of Mr Owen, given the nature of the question, the indeterminate “not long before” it fell to me to ask Phil Owen whether there might have been a discussion about the Merc, Mercedes, in the call that Phil Owen had told us about, being the call in which the ephedrine was asked for, the return of the ephedrine was asked for. Phil Owen said “Well it is possible the Mercedes was discussed then but only in the context as a way of paying for the ephedrine”. That is the only evidence from Phil Owen about any discussion about the Mercedes and the deal changing and evolving, none of that was put to him.

Her Honour referred to the prosecutor’s remark in her summing-up without further comment. There may have been some cause to give a direction in accordance with Manunta’s case in this instance. However, the issue was not given particular prominence and I do not think it could have resulted in a miscarriage of justice.
The appellant’s counsel also drew attention to references by the prosecutor during the cross-examination of the appellant to instances where prosecution witnesses were not cross-examined about particular topics.
The first relates to the evidence of Detective McEachern. This witness asked the appellant some questions in a short interview on 20 March prior to the commencement of the first formal interview. In the course of the short interview, the appellant is alleged to have said to Detective McEachern that he last spoke to Ms Drapes on the Friday night at about 7.30 pm. He said he spoke to her from his home and that he was at home all evening.
When the first formal interview commenced about 15 minutes later, Detective McEachern read to the appellant his notes of the earlier conversation. The following conversation then took place:
QIs that the conversation that we had?
APretty much so.
QIs there anything else that you think we should add or is not right?
ANo, I can’t really remember it that well, but that sounds pretty much as though it happened.
When cross-examined about the initial conversation at the trial, the appellant said he was not one hundred per cent certain that what Detective McEachern read to him was correct and that he found it hard to believe that he did not give other details of his dealings with Ms Drapes on that day to the police officers.
The cross-examination continued:
QMr Curran, you heard your counsel cross-examining Detective McEachern, didn’t you?
AYes, I did.
QHe never once put to Detective McEachern that that conversation was wrong, that you actually said in that first conversation in the first interview room that you had actually met Leila Drapes at Caffe Paesano?
AI never heard my counsel mention that, no.
QBecause you never said any such thing to Detective McEachern in that little room before the videotaping of the interview started?
AWell, so Detective McEachern alleges. But the proof of the pudding is in the interview later on when I do tell him exactly what happened.
The appellant did not positively claim in his evidence that he provided Detective McEachern with the full details of his contact with Ms Drapes on the Friday. He told McEachern in the formal interview that he had difficulty in recalling the earlier conversation.
In my view the prosecutor’s comment about failure to cross-examine amounted to no more than a suggestion that McEachern’s evidence was accurate and there was no reason to suggest the contrary to him. I do not think it amounted to an adverse inference of the nature discussed in Manunta’s case.
The final segment in the cross-examination of the appellant referred to in relation to this ground arose from cross-examination of the appellant concerning shotguns.
There was evidence that, on the morning after the alleged offence, Ms Wardle and Mr Slater saw shotguns at the front and rear door of the appellant’s house. The appellant denied that and said the only shotgun he had was an antique shotgun. This gave rise to the question whether the appellant had been in possession of an antique shotgun and, if so, what had happened to it.
The appellant said he had discussed storing the antique gun with a Ms Klement. He said that after a conversation with her he stored the gun in a shed at her premises. He said that he had a conversation with Ms Klement before taking the gun there and that he asked Ms Klement if she would store it for him.
Ms Klement gave evidence about various matters but when she was first called it was not put to her that the appellant had asked her to store the shotgun. She was then recalled and the appellant’s counsel put to her that there had been a discussion with the appellant in the course of which he had asked her to store the shotgun. She denied that this was the case.
When the appellant gave evidence he said he was not sure that he had actually mentioned to Ms Klement that the article to be stored was a shotgun. It was then put to him that his counsel had specifically asked Ms Klement if the appellant had disclosed to her that the item he wanted stored was a shotgun. Under cross-examination the appellant said that he asked Ms Klement to store something but he could not remember whether he told her that it was a shotgun.
The prosecutor’s comment was not addressed to a failure to cross-examine which might be explained by one or other of the circumstances discussed in Manunta’s case. He was pointing out to the appellant that a specific proposition had been put to the witness that he (the appellant) had said it was a gun which he wanted to store.
The appellant was cross-examined as follows:
QYou remember when Ms Klement gave evidence yesterday that your counsel asked her this “He told you at that stage that he had something in the boot of the car and asked whether he could leave it or stash it at your place” and she answered “No, he did not”. Your counsel asked “I suggest he told you that, you asked him what it was and he told you that he had a shotgun”. Answer “No, no”.?
AMs Klement has every reason to deny that. Her and her husband operate and hold the licence for a hotel.
QYes, are you suggesting she lied deliberately because she didn’t want to endanger her hotel licence?
AThat’s the only reason I can think of why she didn’t acknowledge the fact.
QThe reason I particularly read the passage to you though was this, that your counsel said to her “I suggest he told you that you” – meaning Ms Klement “asked him what it was and he told you that he had a shotgun”. Is that what you said to Ms Klement, those words that your counsel put to her?
AI don’t think so. Perhaps I did, I don’t think so. As I said, I can’t really remember whether I told her what it was or not.
The reason why the prosecutor referred to the cross-examination of Ms Klement was by way of suggesting to the appellant that he had in fact said to her what had been put to her by defence counsel. Again, these circumstances did not call for a direction along the lines suggested in Manunta’s case.
I would refuse permission to appeal on this ground.
Ground 12 – the SMS message
Ground 12 complains of the exclusion from evidence by the trial judge of an SMS message sent to the telephone of Ms Newport, an acquaintance of Ms Drapes.
After the death of Ms Drapes, Ms Newport lent her mobile telephone to Mr Owen for a period of approximately one week. When it was returned to her, she noticed that a text message had been sent to the number. It read:
La la la not listening anymore cause I win
The message was accompanied by a symbol which depicted a face with earmuffs or headphones.
The deceased was known to two people as “La La”. There was no suggestion that these people were responsible for the murder. The mobile telephone from which the message was sent was traced, but the owner said that it had been stolen.
According to the argument for the appellant, the SMS message was admissible to establish that an anonymous person in the community bore ill will towards the deceased and it could be inferred that this person may have been the killer.
The trial judge excluded the evidence on the ground that the message was a hearsay statement.
In my view, the statement does not come within the hearsay rule. In Ratten v The Queen[12] Lord Wilberforce explained the distinction between hearsay and original evidence in the following passage:
The mere fact that evidence of a witness includes evidence as to words spoken by another person who is not called, is no objection to its admissibility. Words spoken are facts just as much as any other action by a human being. If the speaking of the words is a relevant fact, a witness may give evidence that they were spoken. A question of hearsay only arises when the words spoken are relied on “testimonially,” i.e., as establishing some fact narrated by the words. Authority is hardly needed for this proposition, but their Lordships will restate what was said in the judgment of the Board in Subramaniam v Public Prosecutor[13]: “Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made.”[14]
[12] [1972] AC 378 at 387.
[13] [1956] 1 WLR 965 at p 970.
[14] See also the discussion by Brennan J in Pollitt v The Queen (1992) 174 CLR 558 at 572. See also R v Collie (2005) 91 SASR 339; [2005] SASC 148.
A starting point in a case such as the present must be to ascertain the purpose for which the evidence is to be used. The appellant wished to establish that an anonymous person in the community bore ill will towards the deceased. Reliance was placed on the abusive nature of the text. This purpose did not rely on the truth of what was stated in the message. Obviously, there was no intention to rely upon the evidence to establish the truth of the statements “La la la not listening anymore” and “I win”. The suggested relevance of the statement rested on the fact that it established a state of mind of a person in the community and that it did so by the fact that the statement was made. It follows, in my view, that the statement was not testimonial.
That having been said, it is my view that the evidence has almost no probative value. It is common knowledge that the phrase “La la la” is used in the community, particularly by children, as an intimation of not wanting to hear what another is saying and that, in this, context, it is often accompanied by a blocking of the ears.
Even if it referred to the deceased, it is open to such a variety of explanations that it could not be reasonably viewed as having sufficient probative value for the jury to consider.
I would dismiss this ground of appeal.
Ground 13 – the evidence that Ms Drapes was to meet someone
Ground 13 states:
The Trial Judge failed to direct that the evidence that the deceased said she was going to meet someone after parting from the appellant was evidence from which it might be inferred that she was intending to meet a third party and that that third party may have met and killed her and in failing to do so, committed adequately to put to the jury a crucial aspect of the defence case.
There was evidence that at 9.57 pm on the night of the alleged offence Ms Newport spoke to Ms Drapes on the telephone. The evidence of Ms Newport was somewhat vague, but she agreed that it was a possibility that Ms Drapes told her that she would come and get her and introduce her to a friend. Ms Newport also said that Ms Drapes told her she was about to see someone. She was cross-examined as follows:
QWasn’t it still a possibility at the time you finished that conversation with her on the phone that she would come and get you and that you’d be introduced to a friend of her?
AA possibility.
. . . . . .
QDo you accept that it may have been the case that she was saying to you that she was about to see someone?
AI’ll accept that.
QIt could have been either she was waiting for someone or about to see someone and then she’d come to your place. Do you agree with that?
AIt could have been.
One of the arguments advanced by counsel for the appellant at the trial was that this was evidence that Ms Drapes was going to meet someone other than the appellant that night and that this person may have killed her.
The appellant himself gave evidence that when he was with Ms Drapes at the café she said she had to meet someone.
According to the argument on appeal, the trial judge should have told the jury that these statements of Ms Drapes indicated she was going to meet someone that night and that she did in fact meet that person. It was said that the evidence was capable of establishing the possibility that someone other than the appellant met and killed her.
This argument was put to the jury by counsel for the appellant at the trial.
The trial judge reminded the jury that Ms Drapes telephoned Ms Newport at 9.57 pm. Later in her summing-up the trial judge said:
The next event which I mention is at 10.31. This is call 288 which records the deceased telephoning Bernadette Newport. The chart shows it was not connected and the details of it were obtained from the deceased’s telephone. You might remember that Newport claimed there were two conversations between herself and the deceased on that night, but the chart only shows one of them, which I mentioned a little while ago. The rest of their communication was by text message, according to the chart. Ms Newport also told you that in one of the calls the deceased said she was waiting on someone. Anyway, you will make what you will of that.
In my view, the jury would have been aware of the significance claimed for the evidence of Ms Newport to which reference has been made and it was not necessary for the trial judge to say more about it.
I would refuse permission to appeal on this ground.
Grounds 9 and 10
Ground 9 complains that the verdict of the jury is unsafe and unsatisfactory due to the misdirections and non-directions complained of in previous grounds. Ground 10 states that the verdict is unsafe and unsatisfactory by reason of the fact that the trial judge directed the jury that any lies which the appellant may have told could not be used as evidence of guilt, thereby leaving insufficient evidence to support a conviction.
In view of my conclusions on the previous grounds, it is unnecessary to consider ground 9. However, ground 10 requires this court to consider whether “upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”.[15] As the court pointed out in that case, this involves an independent assessment of the evidence by the appeal court.
[15] M v The Queen (1994) 181 CLR 487 at 493.
As previously stated, the case against the appellant was based on circumstantial evidence, a summary of which follows.
Motive
Despite denials by the appellant, there was ample evidence from which the jury could conclude that he, Ms Drapes and Mr Owen were involved in amphetamine trading.
Furthermore, the prosecution led evidence which, if accepted, would support the submission that there was bad feeling between Ms Drapes and Mr Owen on the one hand and the appellant on the other. It was argued that this bad feeling was reflected in incidents which occurred on the day of the alleged offence. Mr Owen said that he was given some ephedrine by a Mr Entwistle which was passed on to the appellant for testing, but not returned. During a telephone call which took place at 6.52 pm on the Friday, Owen said he rang the appellant at the instance of Entwistle to ask for the ephedrine. According to Owen, the appellant claimed that the ephedrine had been lost. At Entwistle’s direction, Owen conveyed a thinly veiled threat from Entwistle to the appellant. There was also evidence from Owen that he received drugs from the appellant which he was unable to use. Owen told the jury that within two weeks before her death Ms Drapes and the appellant had a heated argument over the telephone.
Other evidence upon which the prosecution relied for motive came from a business associate of the appellant, Mr Slater, who operated a car wrecking business on premises leased by the appellant.
According to Slater, he was physically beaten by a man whose name he did not know who was present with others at a house at Unley. The incident occurred between 4.00 pm and 5.00 pm on the Friday. The man who attacked him said he had spoken to Ms Drapes and that the appellant was threatening her. He accused Slater of being used by the appellant to intimidate Ms Drapes. The man claimed that the appellant had said Slater was a member of a bikie group. As the man was leaving, he told Slater that he, Slater, had been warned and would not be warned again. The man also said that Slater would have to arrange to pay a fine of $10,000 which had been incurred by the man.
Slater said that after this incident he rang the appellant and spoke to him at about 5.15 pm on the Friday. He told the appellant that he had been assaulted and he also said that he was told the beating was because of what Ms Drapes had said. He said the appellant appeared “edgy” when told of the incident.
Slater also gave evidence that, on an occasion about 14 days before he was assaulted, a man named Allan Day had told him that it had been alleged that Slater was a member of a motor cycle club. Slater reported this to the appellant. He told the appellant that a group of bikies were not happy about the appellant telling people Slater was a member of their group. The appellant was told that the bikies heard the allegation that Slater was a bikie through Ms Drapes.
According to the prosecution case, these events, connected as they were with Ms Drapes, were relevant to motive. Particular reliance was placed on the events involving Mr Slater which culminated in the assault on him on the day Ms Drapes was killed and led him to report to the appellant on the alleged involvement of Ms Drapes. The appellant denied that Ms Drapes’s name was mentioned during discussions with Slater on the Friday, but it was open to the jury to reject his evidence and conclude that he had reason to be angry with Ms Drapes.
Next, the prosecution relied upon the evidence of contact between the appellant and Ms Drapes in the hours leading up to her death. Reference has been made to the fact that in the interview between the appellant and the police prior to the first video-recorded interview the appellant is alleged to have said that he last spoke to Ms Drapes at about 7.30 pm on the Friday. However, in the first video-recorded interview he said that he rang her at about 10.00 pm and asked her whether she still wanted to catch up and have a coffee. He said it was then that they arranged to meet at the café at North Adelaide.
There was evidence that the appellant rang Ms Drapes at 5.41 pm which was apparently 25 minutes after he received the telephone call from Slater. The call to Ms Drapes lasted one and a half minutes. According to the prosecution case, the appellant made three further calls to Ms Drapes that evening. They were a call from a public telephone box at 144 Prospect Road at 9.00 pm, a call from a pay telephone at a BP service station a short distance south along Prospect Road from the telephone box at 10.00 pm which did not get through, and a call from the Prospect Road telephone box just after 10.00 pm.
It was alleged that the calls were made from public telephones so that they could not be traced back to the appellant. The appellant admitted making only one of the calls, that being the call from the telephone at the BP service station at about 10.00 pm. The appellant said he made the call from this telephone because the battery on the mobile telephone he was using was going flat. However, the prosecution was able to prove that three minutes after this telephone call the appellant had a four minute conversation with Slater on the same mobile telephone. The appellant said in evidence that the battery was then working, although it was showing a low charge. Then he said it went flat once more and he used the pay telephone again shortly after 10.00 pm.
It was open to the jury to conclude that the telephone calls the appellant made to Ms Drapes were motivated by the other events during the evening including the discussion between Slater and Owen. It was also open to the jury to reject the appellant’s claim that the battery on the mobile telephone was low and to conclude instead that the calls from public telephones were made by the appellant because he wished to avoid them being traced back to him.

The prosecution argued that the seriousness with which the appellant viewed the events of the evening, in particular the report from Slater, is demonstrated by the evidence of witnesses who said that on the day after Ms Drapes’s death they saw shotguns at the front and back doors of the appellant’s house. This evidence was given by Mr Slater and Ms Wardle.
Slater said he went round to see the appellant who explained the injuries to his hands and face by telling Slater that he had fallen over a hose and broken a wine glass which cut his hand. Slater noticed shotguns at the front and back doors of the house and the appellant told him they were there for safety reasons. He said the appellant said “If any fucking wanker comes through the door, I’ll blow their fucking heads off”.
Ms Wardle said that she also went to the appellant’s house on the Saturday. She said she saw shotguns at both the front and rear doors. She said the appellant said he was “waiting for the mother-fuckers to come”.
The appellant denied that there were any shotguns at the doors. He said in evidence that the only shotgun he owned was an antique gun which he said was in the boot of his Statesman sedan.
The next aspect of the circumstantial evidence relied upon by the prosecution was the opportunity which the appellant had for committing the offence. In the first recorded interview he told the police he was with Ms Drapes until shortly before 11.00 pm. She was killed shortly after 11.00 pm. It was argued by the prosecution that this was just enough time to get from the café to the place where she was killed.
Then there were the injuries which the appellant had and which he said were sustained at around about 11.00 pm. The prosecution invited the jury to reject the appellant’s claim that he had tripped over a hose while holding a bottle of vodka. When questioned by the police on 20 March 2005 the appellant said that he thought it was about 5.00 pm when he tripped over and was injured. He said that it was still light. When he gave evidence he said that it was at about 11.00 pm that this incident occurred and he said it was the shock of being questioned which led him to mistake the times.
Finally, the prosecution pointed to the evidence of the shirt and the knives. Reference has been made to these matters previously. Again, it was open to the jury to reject the appellant’s version concerning the shirt, leaving unexplained its absence. As to the knives, the prosecution evidence suggests that the appellant had access to a knife of the type described by the eyewitnesses, albeit in very general terms.
On the issue of credibility, there were a significant number of instances where the appellant’s evidence was at odds with the evidence of other witnesses, contrary to objective evidence, or inconsistent with other explanations given by him.
Reference has been made to some of this evidence. It includes alleged lies as to the appellant’s movements on the Friday evening, in particular, his initial claim that the last time he spoke to Ms Drapes was 7.30 pm and that he spent the rest of the evening at home. The appellant told the police that he was driving a utility during the evening whereas he was driving a Statesman sedan.
The prosecution allege that he lied about the shirt he was wearing and the shotguns which other witnesses said they saw at his home. It was also alleged that he lied about the time and manner in which he incurred the injuries. The trial judge directed the jury that any lies told by the appellant could only be used in assessing his credibility. In my view, this was overly favourable to the appellant. Some of the alleged lies, particularly those relating to his movements and the question of which shirt he was wearing could have been left to the jury as evidence of consciousness of guilt. However, as they were directed not to use the evidence for this purpose, I have not taken it into account when considering the present ground of appeal, except in so far as it is relevant to credit. Nevertheless it is my view that the evidence on the other items of circumstantial evidence was sufficient to support the verdict of the jury and that, on the independent assessment required by this court, the verdict cannot be said to be unsafe and unsatisfactory.
I would dismiss the appeal on ground 9 and refuse permission to appeal on ground 10.
Orders
I would refuse permission to appeal on grounds 1, 2, 3, 4, 10, 11 and 13. Ground 14 was abandoned. I would dismiss the remaining grounds of appeal.
NYLAND J. I would dismiss the appeal as well as the applications for permission to appeal for the reasons expressed by Duggan J. I have nothing to add.
BLEBY J. I agree with the orders proposed by Duggan J and with his reasons. I have nothing to add to those reasons.