R v Gee
[2007] VSCA 273
•5 December 2007
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 202 of 2006
| THE QUEEN |
| v |
| BRADLEY JAMES GEE |
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JUDGES: | VINCENT and NEAVE JJA and CAVANOUGH AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 1 October 2007 | |
DATE OF ORDER: | 1 October 2007 | |
REASONS FOR JUDGMENT: | 5 December 2007 | |
MEDIUM NEUTRAL CITATION: | [2007] VSCA 273 | |
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Criminal Law – Conviction – Murder – Provocation – Applicant’s evidence that he witnessed the deceased injecting his girlfriend through window – Prosecution allegation that applicant fabricated his testimony left open to the jury – Whether miscarriage of justice resulted – Application refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M A Gamble, SC | Ms A Cannon, Solicitor for Public Prosecutions |
| For the Applicant | Mr D G Just | Victoria Legal Aid |
VINCENT JA
NEAVE JA
CAVANOUGH AJA:
The applicant was, on 3 May 2006, found guilty by the jury empanelled in his trial in the Supreme Court at Melbourne of the murder of Angelo Koupanis (the deceased) at Colac on 7 November 2004.[1]
[1]After hearing a plea in mitigation of penalty, the sentencing judge, on 28 June 2006, imposed a term of imprisonment of 17 years in respect of which a non-parole period of 12 years was fixed.
He subsequently lodged an application for leave to appeal against his conviction asserting that:
1.The learned judge erred by leaving it open to the jury to accept the prosecution allegation that the applicant had fabricated his testimony that he saw the deceased injecting Belinda Wallace, and a miscarriage of justice has resulted.
2.Alternatively, the learned judge erred by failing adequately to direct the jury as to the manner it should consider and might use the prosecution allegation that the applicant had fabricated his testimony that he saw the deceased injecting Belinda Wallace, and a miscarriage of justice has resulted.
The Court, on 1 October 2007, refused this application, indicating, in the course of discussion, its reasons for so doing and stating that it would set them out formally at a later date. The following are those reasons.
We turn first to the circumstances of the offence.
The background
The applicant, an interstate truck driver, was, until the death of the deceased, engaged in a demanding driving cycle travelling between New South Wales, Victoria and South Australia.
In 2003, he met and formed a relationship with Belinda Wallace. She was then a 17 year old girl living in Newcastle and led the applicant to believe that she was somewhat older. From time to time during the course of their relationship she accompanied him on work trips and, when he was able to arrange to do so, he saw her on a regular basis in her home town.
In October 2004, Ms Wallace moved to Melbourne with the applicant. Initially, she stayed with a family friend of his, but after a short time moved to the house of another friend, Donna Cann, in Werribee, where the applicant would also stay when work permitted. This arrangement commenced in late October with the intention that Wallace would find a house into which they would then both move.
However, and within a very short period, whilst the applicant was absent driving interstate, Ms Cann was visited by a former boyfriend of hers, Glenn Rodriquez, who brought with him the deceased, who was at that time living in Colac.
It appears that the deceased and Ms Wallace were instantly attracted to each other and entered almost immediately into a sexual relationship, which they concealed from the applicant. She continued to live at the home of Ms Cann where she shared a bedroom with the applicant when he was in Melbourne and where they kept their belongings.
The deceased was involved in ongoing drug dealing and visited the Melbourne area frequently to purchase marijuana both for his own use and for sale to others in Colac. Ms Wallace spent time with him on these visits and, shortly after they commenced, the applicant became suspicious of the relationship. He began to encounter difficulty in maintaining the level of telephone contact that had previously existed between Ms Wallace and himself and it became apparent to him that she was spending a deal of time with the deceased.
These suspicions induced the applicant to make some inquiries about the deceased and, as a result, he learned that the deceased dealt in drugs. He warned Ms Wallace against this association but she reassured him that the deceased was ‘just a friend.’ The evidence indicated that the deceased was dealing in marijuana on a regular basis, and that he used heroin. It also indicated that he supplied both substances to Ms Wallace and that, on the day of his death, he had administered heroin to her.
At the trial, Glen Rodriquez stated in his evidence that he had met the applicant on two or three occasions, on the second of which he had a conversation with him about the deceased and Ms Wallace. Approximately a week before the death of the deceased, the applicant told Mr Rodriquez that he was not happy about what was happening with his relationship and that when he had the chance ‘to catch up with the little wog he was going to fix him up.’ He said that the applicant appeared to be upset and angry. He said that, after this conversation, he (Rodriquez) told the deceased to ‘watch his back.’
Ms Wallace spent Melbourne Cup Day 2004 with the applicant but, on the following day, went with the deceased during the afternoon, while the applicant was working. As a result, she was not at home to farewell him before he departed for Adelaide with a load on that night. Unsurprisingly, he was angry with both Ms Wallace and the deceased.
On the next day, after having delivered his load and before picking up another to bring back to Melbourne, the applicant purchased a large knife at the Modbury shopping complex.[2] He asserted, in his evidence, that he purchased it for use in his occupation for the performance of such tasks as cutting away blown tyres and splicing ropes. Nevertheless, by reason of its size, sharpness and quality, it potentially constituted a very serious offensive weapon and there was evidence from the salesperson that she suggested to the applicant that another knife would have been more appropriate for his stated purposes.
[2]The knife was a smooth edge Columbia River folding knife with a double locking mechanism and was supplied with a belt pouch. The salesperson recommended that one with a serrated edge would be better for the cutting of ropes.
During the return trip from South Australia, the applicant rang the deceased’s phone on two occasions in the early morning. Whether he did so to speak to Ms Wallace or the deceased was unclear, but it was evident that he had no doubt that they were together.
On his arrival in Melbourne, he slept in his truck and then spent most of Friday delivering produce at Dandenong before returning to pick up a load in the western suburbs.
Donna Cann had arranged for the deceased and Ms Wallace to come to her home on that Friday, so that the deceased could repay her the sum of $1,000 he had borrowed from her and also to provide an opportunity for the applicant and Ms Wallace to discuss their relationship. When the applicant arrived to find that Ms Wallace was not present and was informed by Ms Cann that she had gone to Colac with the deceased, he responded angrily.
As it transpired, the deceased and Ms Wallace did not return to Ms Cann’s house at any time on the Friday or Saturday, and, on the Friday night, the applicant accompanied Ms Cann to a party for the first part of the evening. He then attempted to contact Ms Wallace in the early hours of Saturday and sent messages to her, to the effect that he had ‘had enough’ and that she had ‘made her choice’. In response, she indicated that she simply desired some time apart and complained of the terms in which he had referred to her.
On the Saturday, the applicant received text messages from Ms Wallace in which she affirmed her relationship with him, although she remained with the deceased. The last of these messages read ‘Did u really mean what u said yesterday? I fuckin love you?’ Although, the Crown submitted, there may have been some ambiguity in this message by reason of the final question mark, it was clearly not a message of rejection.
The evidence indicated that, on both the Friday and Saturday, the applicant was tired, emotionally upset, and angry with the deceased. In the course of expressing his frustrations to Ms Cann on the Saturday morning, he said that he was ‘going to kill them’. She stated that he said this in a normal tone of voice and that his demeanour was calm. Later that day the applicant said that he was going to ‘bash’ the deceased. Although these expressions almost certainly constituted, in part, a venting of emotions, there would seem to be little room for doubt that, by the Saturday evening, he had formed an intention to confront the deceased physically and, at least, ‘bash him’.
The applicant slept part of that day and, during the evening, travelled with Ms Cann and her nine year old son to Colac in her car. She was going to visit friends in Warrnambool and he intended to see Ms Wallace and the deceased. He had the knife mentioned earlier and a baseball bat in his possession. By that stage, the applicant was clearly experiencing powerful emotions of frustration, jealousy, anger at the deceased and concern for Ms Wallace, coupled with some confusion as to her true feelings. This inference, which was not the subject of serious controversy in the trial, it can be safely assumed, was also drawn by the jury.
The deceased was living in a house in Wilson Street, Colac, principally occupied by a man named Dale Matthews. When he arrived there, the applicant left Ms Cann, who had parked her car a short distance from the premises. He had the knife with him but left the baseball bat in the car. He walked past the house and then back to it. According to his version, on entering the front garden area, he observed that a light was on in a front bedroom. He said, that, on approaching the window of this room, he was able to look through a rip in the blind and observe what was taking place. He said that he saw the deceased injecting a substance into Ms Wallace’s arm and that he then ‘froze’ at the window looking at them. He continued to watch, until the deceased received a phone call and then, after putting on their shoes and socks and otherwise readying themselves, the deceased and Ms Wallace left the room and moved to the front door.
There was evidence that both may have been somewhat affected by the consumption of drugs, however the extent to which this was so was the subject of some disputation in the trial. The applicant, in his evidence, described the deceased as steering Ms Wallace, as if leading her in a dance. A witness, Jayson Murrell, described her as being ‘pretty out of it’ shortly beforehand, and it was apparent from the whole of the evidence that Ms Wallace had consumed marijuana on a recurrent basis over the previous two days and had been injected with heroin that afternoon. The deceased had a blood content demonstrating the ingestion of sufficient cannabis to affect his behaviour at the time he left the room.
The applicant said that as Ms Wallace and the deceased were moving to the front door, he changed his position from the window back across the front of the house and entered into a relatively confined verandah space with lattice siding. The deceased emerged onto the verandah and pushed him when he was confronted. The applicant then stabbed him. He inflicted 19 wounds, piercing the chest cavity many times and penetrating the heart, the lungs and the area around the heart. He also cut the deceased’s left hand and, it would seem clear, stabbed his left leg as the deceased sought to evade him. The deceased cried out and fell to the ground. The applicant then cut his throat four times, severing the left carotid artery and jugular vein, and cutting through the throat muscles and the voice box to the neck bones.
The applicant then left the scene, but returned briefly to look for a phone that he thought he had dropped.
Ms Cann had meanwhile moved her car, so the applicant contacted her by phone before she picked him up and drove him to Warrnambool. She noticed, when he returned to the car, that he had blood on the right leg of his pants. She asked him what had happened and he told her that he had ‘slapped Ange[3] a couple of times’. He told her that Ms Wallace was standing there when he did it and that she ran into the house. Ms Cann stated that the applicant was quite calm as he was narrating what had occurred.
[3]‘Ange’ referred to Angelo Koupanis (the deceased).
It is not clear when the applicant first arrived at the house in Colac, but there was evidence that he had purchased petrol at a service station in Waurn Ponds at about 10.22pm and that the journey to Colac from that location would have taken about 40 to 50 minutes. The prosecutor invited the jury to infer that he would have arrived in Colac at 11.50pm at the latest. Ms Cann stated that she made a number of calls while waiting for him including one to the deceased at 12.01am. The applicant called her to pick him up at 12.19am. It was the Crown’s contention that the applicant must have been in the vicinity of the house for some time before the stabbing of the deceased.
After Ms Cann and the applicant arrived at her friend’s house in Warrnambool, the applicant’s clothes were washed and one of the occupants, Mr Remich, washed the knife. According to Ms Cann, she heard the applicant tell Remich that he had stabbed the deceased because he was having an affair with Ms Wallace.
The grounds of the application
In her address to the jury, the prosecutor submitted that the applicant engaged in a ferocious attack in which he inflicted a very large number of stab wounds upon the deceased and cut his throat four times. There could be no doubt, she argued, that in acting in this way he intended to kill the deceased. The question then arose, it was said - had the Crown excluded beyond reasonable doubt the possibility that he had acted under provocation, having observed the deceased injecting Belinda Wallace. This possibility, and specifically the applicant’s version of what he saw, could be safely rejected, the prosecutor contended.
In this Court, counsel for the applicant argued that there was no adequate foundation in the evidence for this submission and that, accordingly, the trial judge erred in leaving it open to the jury to accept that the applicant fabricated his testimony that he observed the deceased injecting Ms Wallace.
Upon perusal of the transcript and consideration of the manner in which the matter was argued before the jury, the Court concluded that this claim lacked any arguable merit. It is desirable in the circumstances to set out, at some length, some extracts from the prosecutor’s final address dealing with this aspect as they provide part of the framework within which the jury was invited to determine this issue.
The prosecutor argued –
But even if you find it abhorrent as to what happened earlier that day with Belinda Wallace, I suggest to you it’s not relevant to what the [the applicant’s] state of mind was as he went on up the highway to Colac, because he didn’t know about it.
I suggest to you what he’s done, when he was giving evidence yesterday, was to seize on that and say, “Oh, yeah, and I saw him do that. I saw him do that when I looked in through the window, through that little tear in the curtain”.
Well, members of the jury, take into account, and we, you know, can’t reproduce the view that he would have had through that tear in the blind, but take into account this, there is another curtain that’s behind that blind which would make viewing a little more difficult, one would think; take into account, members of the jury, the fact that if one were so appalled by what one had just seen for the first time that you might expect [the applicant], when he got back into the car with Donna Cann, the person who was going to take him away from all this, as far as he was concerned, you might expect him to say, “That so-and-so was injecting Belinda Wallace”. You might expect that he said – that he takes Belinda Wallace with him.
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He went to the house of Craig Remich and Amanda Thouliss and he didn’t say anything to them about that. But what he did say, remember Donna Cann says, “Well, he did explain, when he was at their house, that he had stabbed [the deceased], because he was having an affair with his, with Belinda”. So there is nothing about drugs. And whilst [the applicant] says, “Oh, look, I can’t remember what I said and it was all sort of swimming up at me at this stage”, the witnesses, Amanda Thouliss, Craig Remich and Donna Cann, they have recollections of a conversation that was held on that night, on the next day. There was discussion, there was a description by [the applicant] of what had happened. He wasn’t afraid, you would think, to talk about it at all with them and you might think, if he was completely outraged by what he had seen and in order to explain why he had done what he had done, he might mention that he was greeted with this dreadful sight of Belinda Wallace being injected, but not one word about it, members of the jury. Not one word about it.
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Glenn Rodriquez has given evidence about a conversation that he had with [the applicant]. He says it was about a week before [the deceased] was killed. So we are talking, what, the 30th, 31st of October, approximately, and Rodriquez has given evidence that the accused said to him, “That little wog is doing my girl, when I catch up with him, I’m going to fix him up”.
Now, members of the jury, if you accept that that is what was said, I suggest to you it indicates that by the end of October, approximately, it’s not only a suspicion on the part of [the applicant] that there is a relationship going on behind his back, but there’s a knowledge that that’s what is going on. And you remember Donna Cann says that from time to time when [the applicant] is away from Werribee he calls and she says, and she says on two occasions, “Belinda is not here” and she says that Belinda Wallace is with [the deceased] and [the applicant], when he was giving evidence yesterday, I suggest, quite disingenuously, says, “Oh, yes, I knew they were off from time to time but that didn’t concern me. I had the round-table discussion and they said nothing was going on”. Well, members of the jury, if you accept Mr Rodriquez says, he wasn’t happy about what was going on at all and he knew what was going on a week beforehand. And it’s interesting, members of the jury, that [the applicant] doesn’t say, “Look that conversation never took place with Mr Rodriquez”. What he does, and I suggest to you that this is a bit of a pattern with [the applicant] in his evidence, is he down plays the conversation and he says, “Oh, no, look, I would never have used, they are not my words. I would have said ‘I wanted to catch up with him’.” Even if you accept that that’s what he said, he wanted to catch up with him, I suggest to you he wasn’t wanting to catch up with him for a friendly chat.
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Significantly, members of the jury, we come to 3 November 2004. During the day it’s evident that the accused, who is in Melbourne, see towers Sunshine area Laverton area, he’s in Melbourne, he’s around and about, but, he’s even begin (sic) evidence about this, he can’t find Belinda Wallace, she’s gone. In the evening, as he’s pulling out, going interstate, towards South Australia, he calls her on 16 occasions minutes apart, if you look at the chart, minutes apart, and this is only some of the calls that he makes to her, but 16 occasions she doesn’t answer the phone and this is at a time when he hasn’t been able to find her during the day. From 11.16pm to 11.34pm, 16 occasions. And he says to you, “Oh, look, I just wanted to see if she was all right”. Disingenuous, I suggest to you, down playing, down playing. This was a man absolutely obsessed with catching up with Belinda Wallace. “I just wanted to see if she was all right. I was worried about her”. She’s texting him, she is sending texts – we don’t know what the texts are – but it indicates, I would have thought, at the very least, that she’s alive. What is he worried about? I suggest to you Belinda Wallace is all right, she’s off with [the deceased], and the [applicant] knows it. The [applicant] is not all right. He believes that Wallace is off with [the deceased] and that’s why, I suggest to you, he’s calling her minute by minute and he doesn’t get a response.
The prosecutor addressed the various calls that he made including two made at 4.19am and 4.49am on 4 November to the deceased’s phone -
You might think, members of the jury, that [the applicant], despite what he says to you, was pretty angry about things. Later on the same day, the 4th of November, he buys that knife, and you heard his evidence, “Oh, yeah, look, I did need a knife” and he parked a great big semitrailer or prime mover at a shopping centre and he goes in and he spends a good deal of time looking for a knife, and this is hours after he has been on the phone to [the deceased] or [the deceased’s] phone, he’s connected with [the deceased’s] phone on two occasions, and I suggest to you it’s not coincidence. He buys that knife with killing on his mind.
He’s very particular about the knife, isn’t he members of the jury? And you remember the evidence of Claire Burgess when she said that, “Yes, he did say that he needed a knife for rope cutting so I pointed him towards one with a serrated edge but, no, he wanted the one with the clean blade”. It was a big lethal knife, not one that they normally sell, that is, an expensive knife that not many people ask for. And that’s why it sticks out in Claire Burgess’ mind, a knife he wanted that folded that locked well, that didn’t have a slippery rubber handle.
And then the series of text messages on 5 November passing between the applicant and Ms Wallace including one at 7.40pm –
You made the decision so grow up and deal with it. You have hurt me for the last time. There are no more chances to give.
And her response -
Yeah, I made the decision to have a break and then everything gets out of proportion and it ends up like this. Did I make the decision to get called a slut. C.T.
The prosecutor continued -
You remember the evidence of Donna Cann that when he comes home on the 5th of November, he finds that Belinda Wallace isn’t there, and Cann says to him that she’s gone off with [the deceased] and he says, “I’m going to kill him”. Oh, but [the applicant], “You know how you say, you know, ‘I’m going to kill you’, you know how you say that”. You know the difference between [the applicant] saying it on that occasion and how you might say it in common parlance is two days later or in fact 24 hours and - one and a half days later he actually did kill [the deceased]. That’s the difference. That wasn’t a throwaway line, members of the jury. He’s got his knife, he’s finding they are not there and he’s going to kill them and that’s what he does as far as [the deceased] is concerned, isn’t it?
And on the Saturday, he says, “I’m going to bash him” “bash him” in relation to [the deceased]. And he says himself, “I was ranting”. He was angry. And this intent to kill is solidifying.
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So, they cruise the street, the main street, and not long after, I suggest, they arrive at Wilson Street. Remember Donna Cann’s evidence she – points out the house and at [the applicant’s] direction, I suggest to you, she parked around the corner from the house.
Now, members of the jury, this is a man who has apparently had a calm, round-table discussion between [the deceased] and Belinda Wallace about whether there was something going on, and on this occasion, his intention was simply, he says, “to go and see if she was all right and then I would go up the highway and leave her there if everything was OK”. That’s basically what it amounts to. No need to park around the corner, members of the jury. I suggest to you he said to park around the corner because he knew he was about to get out and do something quite violent to [the deceased]. He gets out of the car, as soon as they park, and he’s off. And the last time Donna Cann sees him, he’s going towards 109 Wilson Street. Car in the driveway, house lit up. Does he go and knock on the door, members of the jury? Does he say, “Look, Angelo, I just want to make sure Belinda is all right”. Does he do that? Oh, no. He says to you, “Oh, look, I got out and I walked up the street and I had a think about what I was going to say”. He’s had hours to think about what he was going to say, members of the jury. I suggest to you that that is bunkum. He went straight to the front garden. And I suggest to you the reason that he’s said, “Oh, look, I went up the street”, is because there is such a vast amount of time that he is out of that car and how do we know that, members of the jury? We know that because Donna Cann is sitting there waiting for him, and she is making a series of telephone calls and we know that they have arrived in Colac at the latest at about 11:15 pm., but being generous, at 11:26 p.m. there is a call from [the applicant’s] phone to [the deceased’s] phone and a series of calls after that, all made by Donna Cann. And you remember when my learned friend was cross-examining Donna Cann, no doubt on instruction from [the applicant], did she suggest to him that those calls were made whilst [the applicant] was still in the car? She certainly did not.
You remember [the applicant] yesterday, I suggest to you, hedging his bets, “Oh, look, there are a number of calls made, you know, I was in the car, there were a number of cars (sic) made”. Of course he knows there is a vast amount of time, members of the jury, that he’s got to account for.
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So, if you accept what Donna Cann says, that she started calling, while she is waiting for [the applicant], she starts calling, she is sitting in the car, he says, “Wait for me”, according to her, from 11:26pm. Until 12:08am, because we don’t know after that time precisely when it is that this attack happens, all we can say is that it must have occurred between 12:08am when the call taken by [the deceased] ends and (sic) 12:19am, the time when the killing has been done and [the applicant] is phoning Cann to come and get him. And if you do a calculation, members of the jury from 11:26pm to 12:08am, it’s 42 minutes, that’s a long time, members of the jury. A long time. But he would have you believe that he has a walk up the street and he then walks into the garden and, “Oh, no, no, I didn’t go to the front door, I” – this is a person who is supposed to be potentially rescuing her, “I went and had a look through the tear in the window”. I suggest to you he was lurking in that garden, no doubt looking through the window, planning his attack. He was conducting surveillance. 42 minutes. He can’t account for that time, members of the jury, I suggest to you. He was in that garden waiting, looking through the window and I suggest to you that he did not see what he says he saw.
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If you accept what [the applicant] says, that injecting in any event occurs closer to the time of this second phone call, just before they leave.
But, I have said to you why I suggest it’s fabrication, in one respect, in that he didn’t talk about his outrage at this sight, but in another respect it’s bunkum, I suggest, because they were about to go out, they were about to go to Werribee. Who had the car keys? Who had the car keys, hands them in to Mr Potter? Belinda Wallace.
And you remember the evidence of Mr Meehan, the first police officer who arrives at 12:37am, about his observations about Belinda Wallace. Certainly agitated. She is walking around the house. Walking. No difficulty in standing at that time. But [the applicant] would have you believe that at a time which must have been at what, 12:08am, Belinda Wallace is so unable to get out to the on the verandah that she needs to be assisted in a waltz like state by [the deceased]. And he would also have you believe at that time when he approaches him that somehow [the deceased] also is able to push [the applicant] away.
I suggest to you it’s just not true.
There was, it can be seen from these passages, ample justification for the prosecution argument on this aspect. The jury were invited to conclude that the applicant had opportunistically used later gained knowledge concerning the use of drugs by Ms Wallace and the deceased in an endeavour to provide himself with a fabricated basis for a claim that he acted under provocation. To support this contention, reliance was placed on a number of clearly relevant pieces of evidence concerning the applicant’s conduct before, at the time of, and after the stabbing of the deceased.
The extent to which the prosecutor’s arguments were well based varied and some may have involved a degree of overstatement or exaggeration, or the drawing of unjustified conclusions from the evidence, in our view. But there was nevertheless a satisfactory foundation for the central submission. With respect to the arguments of counsel generally, his Honour instructed the jury in a full and conventional fashion that –
The barristers you have heard in this case are each skilled and experienced practitioners and each has endeavoured to bring out before you the matters that they submit are worthy of your consideration. The Crown has sought to put before you the evidence on which it relies and counsel for the defence has in turn sought to put before you evidence in answer to the prosecution case. Counsel have also put arguments to you in support of their case.
It is important to remember, however, that whilst the addresses of counsel can be very helpful and their comments are designed to assist you in reaching your decision, you are not bound by what either of them has put before you. If you accept an argument that has been presented for your consideration, then you can use it and adopt it, and, in effect, it becomes your argument. If, on the other hand, you did not agree with a proposition that has been advanced or you don’t consider that an argument that has been put to you is helpful, it doesn’t matter where that argument has come from, you put it to one side and come to your own independent view of the facts of the matter.
There is no reason to doubt that the jury understood and applied those instructions. There is no basis for thinking that they did not exercise their own powers of discrimination or that they failed to have regard to the actual state of the evidence. It was certainly open to them to draw the inference that the applicant’s version was false. Whether they did so was entirely within their province.
The trial judge’s summary of the respective positions of the parties and his directions of law were appropriate in the circumstances. His Honour correctly instructed the jury concerning the burden and standard of proof in a criminal trial, the drawing of inferences and the assessment of the witnesses’ evidence. There is no reason for the presence of any concern that any of these directions may have been misunderstood or not properly applied.
The alternative contention contained in ground 2 of the application was similarly misconceived. It was argued that –
… the implied purpose of the prosecution argument was that the claimed fabrication went in proof of consciousness of guilt of not having acted under provocation. There was no confinement of the argument as being only going to credit and rejection of his claimed observation, leaving the case to be determined on the remaining evidence. It was error and miscarriage of justice not to warn the jury as to how it should consider the argument and its use to verdict.[4]
[4]Reliance was placed upon the following authorities for this proposition: Edwards v R (1993) 178 CLR 193; R v Spero (2006) 13 VR 225; R v Franklin (2001) 3 VR 9; R v Russo (No 2) [2006] VSCA 297; R v Nguyen [2005] VSCA 120.
There is no need in the context of the present matter to expatiate on the principles to be applied in determining whether an instruction concerning consciousness of guilt should be given.
The situation confronting the jury in this case was relatively simple and clear. They were urged by the Crown to accept that the applicant, acting with premeditation, savagely attacked his rival for the affections of Ms Wallace with a knife that he had purchased only shortly beforehand, inflicting a large number of wounds and cutting his throat four times. The Crown argued that the defence contentions that they could not be so satisfied and that a reasonable possibility existed that he had effectively lost control upon seeing the deceased inject Ms Wallace, could be safely rejected. This raised a straightforward issue of fact. It was not a case involving the drawing of an inference of guilt from post event falsehoods or conduct, but one in which issue was joined at the fundamental factual level of what took place at the time. There could be no doubt whatever that, once the jury rejected the applicant’s evidence that he saw the deceased injecting Ms Wallace, his conviction was inevitable. It is fanciful to suggest that, having rejected his assertion, the jury may have treated his assertion as evidence of consciousness of guilt and reasoned to guilt on that basis.
The situation can be reasonably compared with that considered by this Court in R v Shiers[5] where it was said –
The jury, approaching their task responsibly must be taken to have understood that before a conviction of murder could be returned, the possibility that the applicant was acting in self-defence or under provocation had to be excluded beyond reasonable doubt. As a practical proposition, and as all concerned appeared to have understood, this necessitated the exclusion beyond reasonable doubt of the possibility that the central features of the applicant’s version … could have been true. After all, this issue had provided the focus of the trial. In the particular circumstances of the present matter, the reasonable possibility of a miscarriage of justice arising from the adoption of impermissible reasoning of the kind addressed in Edwards and later cases, cannot be seen to have arisen. In other words, the likelihood that the jury would have based their findings of guilt upon the lies themselves rather than the evidence which exposed the statements as lies, is, I consider, quite unrealistic. [6]
[5]R v Shiers (2003) 7 VR 174.
[6]Ibid 188, [47].
As indicated, having reached the conclusion that neither of the grounds upon which it rested were sustainable, the Court dismissed the application.
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