R v Howard
[2005] VSCA 235
•29 September 2005
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 49 of 2004
| THE QUEEN |
| v. |
| PETER JOHN HOWARD |
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JUDGES: | CALLAWAY, CHERNOV and VINCENT, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 15 August 2005 | |
DATE OF JUDGMENT: | 29 September 2005 | |
MEDIUM NEUTRAL CITATION: | [2005] VSCA 235 | |
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Criminal Law – Murder – Elderly woman stabbed in her home – Change in Crown case at very late stage of the trial – Lie as evidencing consciousness of guilt raised as basis for conviction in Crown’s final address – Whether trial rendered unfair – Applicant denied opportunity to meet allegation through evidence or address to jury – Applications for re-direction or discharge of jury refused – Miscarriage of justice – Appeal against conviction allowed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J.D. McArdle, Q.C. with Mr C.B. Boyce | Mr S. Carisbrooke, |
| For the Applicant | Mr O.P. Holdenson, Q.C. with Mr M.J. Croucher | Simon English |
CALLAWAY, J.A.:
I agree with Chernov, J.A.
CHERNOV, J.A.:
The applicant, Peter John Howard, who is now aged 73 years, was convicted on 19 November 2003 by a jury, following a trial lasting twelve hearing days, of the murder of Olive Martha Maas at Boronia in the early hours of 12 June 2002. On 12 March 2004, after hearing a plea in mitigation made on the applicant’s behalf, the learned sentencing judge imposed a sentence of 20 years' imprisonment and directed that the applicant serve a minimum term of 15 years before becoming eligible for parole. The applicant admitted 14 convictions from two court appearances, one in 1976 and the other in 1998. In respect of the 1976 offences, namely, seven counts of kidnapping and one count of robbery, he was sentenced to a total effective sentence of seven years' imprisonment with a non-parole period of two years. The six offences of which the applicant was convicted in 1998 involved dishonesty charges in respect of which he was fined $750. By notice dated 22 March 2004, the applicant sought leave to appeal against his conviction for murder on ten grounds but Mr Holdenson, who appeared before us for the applicant, abandoned grounds 1, 5 to 8 and 9(c) to (e). Before turning to the submissions made in support of the remaining grounds, it is necessary to describe briefly the circumstances pertaining to the offending.
Circumstances of the offending
The Crown alleged that in the early hours of the morning of 12 June 2002 the applicant entered the deceased’s house through the laundry window, which he had smashed for the purpose of gaining entry. He carried a knife with a 21 centimetre blade, around the handle of which he had wrapped the sleeve of a yellow rubber glove. It was alleged that the applicant then attacked the deceased, brutally stabbing
her 57 times to the head, neck, chest and limbs. The deceased suffered, in addition to many terrible wounds, lacerations to her hands and forearms that were typical of “defence type” wounds. A neighbour and friend of the victim, Janet Pendergast, gave evidence that, at approximately 5.12 a.m. on 12 June 2002, having been woken by the sounds of possums in her front garden, she heard screams and banging coming from the vicinity of the victim’s home that lasted for about 30 seconds. She also said that she had heard a male voice, which she described as sounding calm, but was unable to distinguish the majority of the words being said. After approximately fifteen minutes, and after yelling out to see if the deceased was “alright” but receiving no response, Ms Pendergast called “000”. Due to a communications error, however, the police failed to respond and, in the event, the deceased’s body was not discovered until 2.30 p.m. of the following afternoon. The deceased was found by her friends, lying face down in the front room of her home, approximately one metre from her bedroom door.A “Chef Craft” brand knife was protruding from her left side, the handle of which was wrapped in the sleeve of a yellow plastic glove. It was the Crown case that the knife had been altered by the applicant in such a way as to provide for greater grip, thereby making it a more effective stabbing weapon.
Police who examined the scene found half a red brick in the garden bed near the laundry window. It matched the bricks on the applicant’s (but not the deceased’s) property, and investigating police formed the view that it may have been brought by the deceased’s assailant for the purpose of smashing a window to gain entry. There was no indication that the house had been ransacked or that any property had been taken from the house, although the police noted what they described as a “Hansel and Gretel” trail of three ten-dollar notes leading from the deceased’s body to the laundry window. DNA samples were taken from known local burglars but they were eliminated as suspects and the police formed the view that the trail of notes was probably laid deliberately and that it was unlikely that the murder was the result of a burglary “gone wrong”.
On 12 June 2002 the police spoke to the applicant as to his movements on the previous evening and whether he heard or saw anything that might help with their investigations. This discussion took place as part of standard door-knock enquiries that were conducted by the police in the area. The police again visited the applicant at his home on 14 June 2002 and he told them that, on 11 June 2002, he had been at home “all night”. On the following day, 15 June 2002, the police obtained a written statement from the applicant (that was drafted by one of the police officers and signed by the applicant) as to his movements on the night in question and related matters. I shall refer to the statement more fully later. It is sufficient for the moment merely to note that the applicant said in his statement that, on 11 June 2002, he had not gone out “at all that night”. At his trial, however, Ms Pendergast said in her evidence that she saw the applicant at approximately 8.30 p.m. on 11 June 2002 hiding behind rubbish bins stored in her carport, which was at the back of her property and adjacent to that of the deceased.
On Sunday, 16 June 2002, the police executed a search warrant at the applicant’s premises and located an empty, plastic, “Chef Craft” knife package that matched the knife that was found in the deceased’s body. Police were unable to find at the applicant’s home, however, a knife corresponding to the package. Police also found three left hand yellow rubber gloves and, under the applicant’s house, a pile of red bricks of a kind similar to the brick found outside the deceased’s laundry window. Police also located a balaclava which, they later ascertained, had been purchased by the applicant on 11 June 2002, notwithstanding the unusually warm winter weather.
On 21 June 2002, police arrested the applicant and he was remanded in custody. He was eventually presented in the Supreme Court on one count of murder, and, on his arraignment on 1 July 2003, pleaded not guilty. The trial commenced on 8 October 2003 and proceeded before her Honour for twenty two sitting days before the jury was discharged on 29 October 2003 without a verdict. On the following day, the second trial, out of which this appeal arises, commenced before the same judge. The same counsel appeared respectively for the Crown and the applicant and, as I have said, on 19 November 2003, the jury returned a verdict of guilty. The applicant was sentenced 12 March 2004 as set out above.
Relationship between the applicant and the deceased
At the time of her death the deceased, who was aged 59 years, resided at 18B Catherine Street, Boronia. The residence was one of two adjoining units, the other being occupied by Ms Pendergast. The applicant lived in a unit in the same street, but on the opposite side of the road. He and his mother first rented the unit in 1982 from a Mr Stockley and, when the applicant’s mother died, he stayed on. The applicant never married and has no children. By all accounts he was a recluse. He had the habit of standing at his windows and watching the deceased and other residents and visitors to the street from behind partially drawn curtains. When outside, he would generally avoid the deceased either by walking past her without speaking or crossing the road. Some years prior to Ms Maas’ death he complained to her about heR. v.isitors parking (lawfully) in the street outside his premises and, as a result, the deceased asked them not to park there. He told the police, shortly after the killing, that he considered that the deceased was “aggressively friendly”.
The deceased was on good terms with the applicant’s landlord, Mr Stockley. Following several incidents of property damage caused by vandals to the unoccupied unit next to that of the applicant, Mr Stockley requested the deceased to telephone him if the alarm that he had installed at the unoccupied unit was ever activated and generally to keep an eye on the property. There was evidence at the trial that the deceased and Mr Stockley had often spoken on the footpath outside the applicant’s home and that he had watched them from his windows. Some months prior to the death of Ms Maas, Mr Stockley sought to evict the applicant from his unit and, in the event, he was ordered to vacate the premises by 13 June 2002 – that is, one day after the murder of Ms Maas – but, as is apparent from what I have said earlier, the applicant failed to do so.
Crown’s allegation of consciousness of guilt
In his final address, the prosecutor told the jury that the applicant had lied when he said in his statement that he did not go out at all on the night of 11 June. That this claim was a lie, said the prosecutor, was plain from the evidence of Ms Pendergast to which I have referred. The prosecutor went on to contend that the lie was told because of the applicant’s consciousness of guilt. He knew, said the prosecutor, that if he had told the truth it would have implicated him in the offence. Relevantly, the prosecutor said:
“Now, pay attention to the next statement: ‘I know I didn’t go out at all that night. I don’t go out at night’. Lie! Janet Pendergast sees him across the road at 8:30 that night. Doing what? That lie, members of the jury, is significant because it is a lie told out of a consciousness of guilt. That lie, members of the jury, in my submission to you, condemns him. He lies because he knows to tell the truth would pose pretty serious questions: where did you go? Across to Janet Pendergast’s place? What did you do that for? What is the answer to that question? Why were you hiding there at the back of the garage near the bins? What is the answer to that question? So he lies.”
Following the prosecutor’s address, the applicant’s counsel applied to the trial judge for a direction to the jury that the statement relied on by the prosecution in its final address did not amount to a lie and could not be used as a basis for raising an argument as to consciousness of guilt. Alternatively, counsel submitted, if her Honour was of the view that the impugned statement was capable of being treated as a lie and as evidence of consciousness of guilt, the jury should be discharged on the basis that the Crown relied on it as showing consciousness of guilt for the first time only in its final address and thus, the applicant did not have the opportunity of rebutting the allegation. Her Honour, however, rejected counsel’s application that she direct the jury that the statement was not capable of being regarded as a lie and as amounting to an implied admission. She also rejected the application that the jury be discharged. Her Honour went on to charge the jury accordingly.
Grounds of appeal
As has been noted, the applicant abandoned all grounds in his notice other than grounds 2 to 4, 9(a) and (b) and 10. For reasons which will become apparent, it is necessary only to set out ground 2.
“(2) A miscarriage of justice resulted from the prosecutor’s being allowed to address to the jury an argument relating to an alleged lie or lies amounting to consciousness of guilt in circumstances where
(a)on the evidence, it was not open to be satisfied that the applicant had lied; and/or
(b)the prosecutor’s course represented a substantial change in the prosecution case at a late stage of the trial.”
This was the ground that was argued first. Under cover of that ground, Mr Holdenson essentially submitted that the trial miscarried because the prosecutor was permitted by the trial judge to rely for the first time in his final address on the claim that the applicant lied to the police and that the lie evidenced his consciousness of guilt. Counsel argued that it was not open to the jury to conclude that the statement contained the lie for which the Crown contended. In any event, said Mr Holdenson, because the claim of consciousness of guilt was only raised very late in the trial, the applicant had no opportunity of responding to it, with the result that the trial was rendered unfair to him.
Before dealing with counsel’s arguments in support of these contentions, it is necessary to look at the contents of the statement and the context in which it was made. I have already mentioned that the police had questioned the applicant about his movements at the relevant time. In addition, they also questioned him as to whether he had telephoned Mr Stockley in the early hours of 12 June. The reason this matter was brought up by the police was that Mr Stockley had told them that he had received an abusive telephone call at approximately 3 a.m. on the night of the deceased’s murder and believed that the speaker was the applicant. When this was put to the applicant by the police during their discussions, he denied the claim and this denial was reflected in the written statement. Although initially the police did not accept the applicant’s denial, they later established, through telephone records and the like, that it was not the applicant who had telephoned Mr Stockley in the early hours of 12 June. Thus, so far as is relevant, the applicant’s statement to the police dealt with two matters. One concerned his movements on the night in question and the other related to whether he had telephoned Mr Stockley. The statement was in the following terms:
“My full name is Peter John Howard. I am 70 years of age and reside at an address known to police.
I have been asked what time I went to bed on 11th June 2002. To the best of my knowledge, I went to bed between 9:30 p.m. to 11:00 p.m. I don’t really remember.
I know I didn’t go out at all that night. I don’t go out at night.
I don’t really have a routine, but I don’t get up before daybreak. I sometimes get up at 7:00 a.m. during the week. I get up at 6:30 on Saturdays and go to buy my newspaper and my groceries at Safeway.
On Tuesday night to Wednesday morning on 11th to 12th June 2002 I did not receive any phone calls that I remember. I certainly didn’t make any calls. My phone numbers are 97621941 and 97610067. I don’t have a mobile phone.” (Emphasis added.)
Mr Holdenson argued that it was unfair to the applicant to permit the Crown to rely on consciousness of guilt so late in the trial because, he said, the prosecution had throughout the first and second trials effectively disclaimed such an allegation and trial counsel conducted the defence case accordingly. More particularly, it was said, counsel did not cross-examine police witnesses with the view to eliciting evidence that would, or might, have borne on the proper interpretation of the impugned part of the statement and, Mr Holdenson contended, such a course would have been adopted had the Crown said at the outset that it would rely on consciousness of guilt as part of its case against the applicant. In support of his claim that the applicant’s trial counsel would have been well justified in proceeding on the basis that the Crown would not rely on the applicant’s statement as constituting a relevant lie, or as evidencing a consciousness of guilt, counsel pointed to the following. First, it was said, during the first trial the Crown did not seek to rely on the statement. On the contrary, it maintained that the statement was inadmissible because it was self-serving and, consequently, it opposed its admission into evidence. The defence, on the other hand, sought to have it admitted into evidence because, it claimed, it showed that the applicant was telling the truth to the police when he denied that he had telephoned Mr Stockley at 3 a.m. on the night in question and that, therefore, that he was a truthful person. In the end, the prosecutor relented, and told her Honour that it would be appropriate to “[p]lace [the statement] before the jury”. It was in these circumstances that it came to be read into evidence at the first trial. The police officer who compiled the statement was not cross-examined about the circumstances of its making.
It was next said that, in its opening at the second trial, the Crown told the jury that its case was a circumstantial one, based on several facts that the prosecutor outlined and which he said linked the applicant to the deceased’s murder. Mr Holdenson pointed out that these “facts” did not include the alleged lie to the police and no mention was made of reliance by the Crown on consciousness of guilt. Moreover, counsel said, the prosecutor also told the jury that the applicant never admitted killing the deceased. Mr Holdenson stressed that it was against the background of such an opening that the applicant’s statement was read to the jury in the second trial. It is not surprising, therefore, said Mr Holdenson, that the applicant’s experienced trial counsel did not relevantly cross-examine the police witnesses. As it was, the cross-examination was directed essentially to establishing that the applicant had not made any telephone calls to Mr Stockley during the night in question.
Thus, it was said, either the Crown knew from the outset that it would rely on consciousness of guilt but misled the defence into believing the contrary, or failed to correct such a belief, or alternatively, the Crown only thought of advancing such a case at the final address stage. In either case, it was said, the applicant was effectively denied the opportunity of rebutting such a claim and was thus denied a fair trial.
In support of his claim that it would not have been open to the jury to regard the applicant’s statement to the police as containing a lie for which the Crown belatedly contended, Mr Holdenson first argued that, given that the applicant claimed in his statement that he went to bed between 9.30 p.m. and 11 p.m., it was not open to exclude the reasonable possibility that the applicant was saying no more that he did not go out that night after he had retired to bed. In those circumstances, said Mr Holdenson, the applicant’s statement in question was not inconsistent with Ms Pendergast’s evidence as to her sighting of him and, therefore, could not amount to a lie. Secondly, counsel argued, in the absence of police evidence as to the specific questions the applicant was asked to answer, it was not open to infer that his mind was directed to whether he was across the road at Ms Pendergast’s place at 8.30 p.m. on 11 June 2002. Moreover, Mr Holdenson said, it is clear that no question by the police could have been specifically directed to whether he had been at Janet Pendergast’s that evening because, at the date on which the applicant made the statement, the witness had not come forward with this information. That the applicant’s mind was not directed to whether he had gone out at about 8.30 p.m. is also evident, said counsel, from the fact that, when speaking with the applicant, the police were primarily concerned to ascertain whether he had made a threatening telephone call to Mr Stockley at 3 a.m. that morning. The queries as to his whereabouts, it was said, were made in the context of general, routine police enquiries of nearby residents. Counsel further submitted that, even if it was open to the jury to conclude that the applicant’s impugned statement was inconsistent with Ms Pendergast’s evidence, the jury could not have safely concluded on that basis alone that the applicant had deliberately lied, particularly since there was no evidence that he was asked by the police to address that issue.
In any event, said Mr Holdenson, even if the applicant’s statement to the police at the relevant time was a lie, it was not open to the jury to treat it as amounting to consciousness of guilt because at least two of the essential prerequisites for the drawing of such an inference, recognised in Edwards v. The Queen[1], could not be made out in this case. First, it was claimed, alternative explanations consistent with innocence could not have been reasonably excluded by the jury. It was said that the applicant might have lied to the police due to his fear of being falsely linked with the murder or due to a reluctance to admit “going through” another person’s rubbish bins. It was next argued that the mere fact that the applicant might have been in the vicinity of Ms Pendergast’s carport at the time she claimed did not amount to a sufficient link to the murder to constitute a material circumstance and, hence, the lie as to his whereabouts on the evening in question could not amount to consciousness of guilt.
[1](1993) 178 C.L.R. 193.
The respondent, on the other hand, contended that the applicant’s implied admission of guilt was always part of the Crown case and that defence counsel should have foreseen it. Mr McArdle, for the respondent, argued that, on its plain reading, the applicant’s statement contained the claim that he had not left his home during the night of 11 June and that the document could not be sensibly read as saying only that he had not left his home after he had gone to bed. It was also contended for the respondent that, even if the policeman who compiled the statement had been cross-examined as to the circumstances of its making, this would not have resulted in any material change to the meaning that could properly be attributed to the impugned part of the applicant’s statement.
Mr McArdle further argued that it would have been obvious to the jury, and to the applicant’s counsel, from the prosecutor’s opening that the Crown would contend that the applicant’s statement to the police contained the lie. This would have been apparent, said Mr McArdle, from the way in which the prosecutor referred in his opening to it being not “unexpected” that the applicant told the police that he was asleep “that night” and referring very shortly thereafter to Ms Pendergast’s evidence that contradicted such a claim. Moreover, it was said, the lie related to a material circumstance and there was no credible explanation for it consistent with innocence and, therefore, it was capable of being treated as an implied admission of guilt by the applicant in accordance with Edwards. Thus, Mr McArdle claimed, in all the circumstances, the trial was not conducted unfairly to the applicant.
I do not accept Mr Holdenson’s claim that it was not open to the jury to treat the applicant’s statement as containing a lie, or that the lie could not be said to amount to consciousness of guilt. I think that on the evidence given at the trial – there being an absence of specific evidence as to the circumstances in which the statement was formulated – the only natural meaning of the impugned passage is that the applicant was thereby asserting that he had not gone out of his house at any time during the night in question, before or after he went to bed. It was open to the jury to accept such an interpretation of the statement and Ms Pendergast’s evidence as to her sighting of him.
I think it was also open to the jury to conclude that the applicant lied to the police because he was aware that if he told them that he had gone out at approximately 8.30 p.m. on that night, this may have inculpated him in the murder of Ms Maas. Moreover, it would have been open to them to reject the applicant’s possible innocent explanations for the lie that were put forward by Mr Holdenson. In particular, the jury could have properly treated as fanciful a claim that the applicant had lied because he did not want to admit that he was rummaging through Ms Pendergast’s rubbish. The same could be said of a contention that the lie was told simply because the applicant was concerned that otherwise he might be wrongly charged with the offence. Similarly, I do not accept the argument that the lie did not relate to a material circumstance. It clearly did. It went to establish that the applicant reconnoitred the area around the deceased’s premises for the purposes of planning the execution of the offence.
On the other hand, I consider that the applicant has not had a fair trial, such as to produce a miscarriage of justice because, given the way the Crown conducted its case, the applicant was effectively deprived of the opportunity of challenging its claim based on consciousness of guilt. I do not accept Mr McArdle’s claim that the applicant’s trial counsel should have anticipated that the Crown would rely on the lie in question as evidence of an implied admission of guilt. In my view, the Crown opening did not disclose that its case was that the applicant lied to the police and that he did so because of a consciousness of guilt on his part. It is plain, I think, that the prosecutor did not so allege in terms in his opening. But even if it were assumed that, for the reasons suggested by Mr McArdle,[2] it was implicit in the prosecutor’s opening that he alleged that the applicant had lied to the police, as Mr Holdenson pointed out, the lie was not one of the “facts” on which the prosecutor relied to link the applicant with the murder. As such, it could not be said that it was implicit in the Crown’s opening that the lie amounted to consciousness of guilt. On the contrary, even assuming the Crown’s opening alleged that the applicant had lied, the absence of the contention that the lie amounted to a consciousness of guilt would have led to the inference that the Crown would rely on it as going only to the applicant’s credit.
[2]See para. [20].
In light of this, and given that at the first trial the Crown treated the applicant’s statement as being exculpatory of him, there is a real likelihood that the applicant’s experienced senior counsel at the trial formed the view that the Crown would not rely on consciousness of guilt and that he, therefore, conducted the defence accordingly. More particularly, he may well have adopted the position that, in the circumstances, there was no forensic purpose in cross-examining the police witnesses in order to establish the circumstances in which the statement was made, being a course that he would have pursued had the Crown made it apparent that it would rely on consciousness of guilt. Contrary to the respondent’s submission, I think that it is not fanciful to say that cross-examination of police witnesses along those lines might have been forensically effective. Such questioning might have established circumstances in which the applicant’s statement was compiled that could have had some bearing on the meaning of the impugned words.
When the prosector alleged in his final address that the applicant lied and that the lie amounted to consciousness of guilt, the applicant had no realistic opportunity to meet that claim. I cannot accept Mr McArdle’s submission that the respondent could have sought to have the policeman recalled for cross-examination after the prosecutor’s final address but chose not to do so and, therefore, the applicant must now abide that decision. I consider that, from a forensic point of view, such a course would have been plainly disadvantageous to the applicant and I am not surprised that his counsel did not seek to pursue it.
Fairness demands that if the Crown intends to rely on consciousness of guilt it should make this known to the court at the outset of the trial. This requirement is now reflected in Practice Note No. 1 of 2004[3], which came into operation after the commencement of the applicant’s trial. It provides that, after 31 May 2004, practitioners must file, prior to trial, a document identifying “any alleged lies and other post-offence conduct sought to be relied upon by the prosecution as showing consciousness of guilt.” If, for good reason, the Crown only decides to pursue such a course later in the trial, it should announce its intention to do so as soon as practicable, and before addressing the jury,[4] and seek leave of the trial judge to press such an argument.
[3](2004) 8 V.R. 475.
[4]See R. v. Dung Chi Dang [2004] VSCA 38 at [46] per O’Bryan, A.J.A.
Be that as it may, I consider, as I have said, that the trial was unfair to the applicant inasmuch as he was effectively deprived of the opportunity of challenging the Crown’s case based on consciousness of guilt. Moreover, I think that the unfairness was such as to constitute a fundamental fault in the trial and, thus, rendered the conviction intrinsically flawed.[5] Given this conclusion, the respondent’s contention that the proviso should be invoked must be rejected, notwithstanding that the Crown’s case was very strong.[6]
[5]Wilde v. The Queen (1988) 164 C.L.R. 365 at 373 per Brennan, C.J., Dawson and Toohey, JJ.; Grey v. The Queen (2001) 75 A.L.J.R. 1708 at 1719 per Kirby, J.
[6]See, for example, Wilde at 371-372.
Where, as occurred here, the Crown seeks to put forward, for the first time in its final address, a new basis on which it says the accused may be convicted, in circumstances where the defence would not have the opportunity of meeting the new claim, the trial judge should ordinarily not permit such a course to be pursued. To do otherwise would be to allow the Crown to go back on its election as to the case that the accused has to meet, thereby, at the very least, jeopardising the fairness of the trial. Thus, in R. v. Falconer-Atlee[7], the English Court of Appeal held that a change in the Crown case, after it had closed its evidence, so as to allege an alternative basis for convicting the accused was productive of unfairness in the trial process. In that case, on a charge of theft of a dog, the prosecutor alleged in the opening that the theft was constituted by the applicant misappropriating the dog after having purchased it and upon becoming aware that the dog in her possession was not the one she had paid for. In other words, the Crown accepted, at that stage, that the applicant had come by the dog honestly, but mistakenly. At the close of its evidence, the Crown sought to argue that the appellant either stole the dog at the premises of its owner or, if she did not steal it there, she misappropriated once she learned of the mistake and became aware of the true facts. The trial judge permitted the Crown to put that case to the jury and he charged them accordingly. On appeal it was held[8] that such a change in the Crown case was tantamount to adding a second count to the indictment in the middle of the trial and that it “was not the right thing to do”. Roskill, L.J. said[9] that “[o]nce the Crown had elected to proceed upon one aspect of the case, … the Crown ought not to have been allowed at the close of the case for the prosecution to go back upon … their election, and try to have the best of both worlds.”
[7](1973) 58 Cr.App.R. 348.
[8]At 355.
[9]At 356.
It has also been recognised in a number of other cases that a redirection by the trial judge, at a very late stage in the trial, that has the effect of materially changing the prosecution’s case such as to add a new basis on which the jury could convict the offender, in circumstances where the offender is denied the opportunity of meeting the new case by moulding the defence to it through evidence or through the address to the jury, will ordinarily result in a mistrial.[10] It is irrelevant whether the redirection was at the instigation of the trial judge – as occurred in R. v. GAS – or was made at the behest of the Crown – as occurred in King v. The Queen and R. v. Falconer-Atlee. As Deane, J. said in King[11]:
“… Once the Crown elected at the trial to confine its case against the applicant with the result that the trial was conducted on that basis, it could not legitimately expect that it could, after evidence and addresses had been completed, seek, through the trial judge’s summing up, to obtain a conviction on some other basis if it became apprehensive that the case which it had presented might be rejected by the jury.”
What is critical is that in such a situation the offender has been denied the opportunity to meet the new case. It is the denial of this opportunity that ordinarily renders the trial unfair to the accused and results in a miscarriage of justice.
[10]See, for example, R. v. Falconer-Atlee at 355-357 per Roskill, L.J. who delivered the decision of the court; Solomon v. R. [1980] 1 N.S.W.L.R. 321 at 327-328 per Street, C.J. and at 334-336 per Moffit, P; King v. The Queen (1986) 161 C.L.R. 423 at 428-430 per Deane, J. and at 432 per Dawson, J.; R. v. Hewitt [1997] 1 V.R. 301 at 308 per Winneke, P.; R. v. GAS [1998] 3 V.R. 862 at 863-864 per Ormiston, J.A. and 876-879 per Batt, J.A.; and R. v. GAE (2000) 1 V.R. 198 at 203-205 per Winneke, P. and at 224 per Chernov, J.A;.
[11]At 429.
The same applies where the Crown is effectively permitted to put forward, for the first time in its final address, a new basis on which the accused may be convicted. As I have said, I consider that in this case, the prosecutor did just that, thereby denying the applicant the opportunity of meeting the new case. The situation is not at all like the one in R. v. Debs and R. v. Roberts[12]. Here, for the reasons given, the applicant did not receive a fair trial according to law and thus, suffered a miscarriage of justice which requires the verdict to be set aside. It follows that, in my view, ground 2 should be upheld, the verdict set aside and a new trial ordered.
[12][2005] VSCA 66. In that case, the Crown specified in its final address, with much greater particularity than at the commencement of the trial, the respective roles of the applicants in the offending. As Vincent, J.A. said: “…that is neither uncommon in a criminal trial, nor is it necessarily the cause of any potential injustice. Often, it is not until late in a trial that the full picture can emerge before a jury or the significance of the evidence can be fully comprehended.”
In the circumstances, there is no need to consider the other grounds that were
argued by Mr Holdenson.
VINCENT, J.A.:
I also agree that the application for leave to appeal against conviction should be allowed, the verdict be set aside and a new trial ordered. I do so for the reasons advanced by Chernov, J.A. in his judgment.
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