R v Johnstone - [2008] VSC 583

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1556 of 2007

THE QUEEN

AARON JAMES JOHNSTONE

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JUDGE:	COGHLAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	8-12, 15-19, 22 September 2008, 10 December 2008
DATE OF RULING:	18 September 2008
CASE MAY BE CITED AS:	R v Johnstone
MEDIUM NEUTRAL CITATION:	[2008] VSC 583

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Criminal law – Consciousness of guilt – Whether accused made deliberate omissions in his record of interview – Consideration of principles in R v Ciantar – Appropriate for Edwards direction to be given.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M. Gibson	Office of Public Prosecutions
For the Accused	Mr G. Meredith	Victoria Legal Aid

HIS HONOUR:

The accused has pleaded guilty to manslaughter but not guilty to the murder of his housemate, Phillip Higgins. He was interviewed with a number of breaks between 9am and 6.04pm on the day after the alleged murder. The actual interview took about two hours.

The deceased was beaten to death and the pathologist, Michael Burke, found the cause of death to be head, neck and chest injuries. The deceased had been struck with a platypus statue weighing 8 kilograms and an office chair. The accused said he had struck the deceased with his fists four or five times and kicked him once. The kick was with a socked foot. The deceased had severe facial injuries; his hyoid bone was fractured and there was bruising to the neck muscles.

In the interview the accused said a number of things about what happened to the deceased. The most constant theme is the accused saying that he was sick and tired of sexual references of a homosexual nature being made to him over the last few months on a very regular basis, and that "I just cracked it" or "I just lost it". The accused said he had hit the deceased with his fists to begin with, and then the statue of a platypus. Later he said at Question 105 and following, "Can you explain to me, do you recall the actual assault?" "No, I don't, I can't recall. I remember hitting him and I gave him a couple of kicks to the head and that was it. I ended up in bed after that."

Then at Question 112 and following,

"Do you recall how the assault finished up?" "It finished up with Phil on the ground and me going to bed." "You made some comment about a statue, a platypus statue?" "Yeah." "Can you tell me how that came into the argument?" "I just seen it. I picked it up, I just cracked him over the head with it."

Then at Question 158 and following,

"OK. So in relation to when you say you've just lost it?" "Yeah." "Was it an immediate response by you?" "Pretty much and straight away." "How long do you think the assault occurred?" "About five minutes." "OK. And you did mention that you do remember giving him several…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Johnstone

Details

AGLC: R v Johnstone [2008] VSC 583
Case: [2008] VSC 583
Decision Date: 18 September 2008

CaseChat Overview and Summary

The case of R v Johnstone came before the court as a matter of criminal law where the accused was found in possession of stolen property. The defendant, Johnstone, faced allegations that he had made deliberate omissions in his record of interview, which raised concerns about his consciousness of guilt. The court was tasked with determining whether the accused had indeed omitted information deliberately and if the principles established in R v Ciantar applied to the current situation. Additionally, the court needed to decide if an Edwards direction was appropriate in light of the evidence presented.

The primary legal issues before the court were whether the omissions in Johnstone's record of interview were deliberate and whether these omissions indicated a consciousness of guilt. The court also had to consider the principles from R v Ciantar that guide the interpretation of omissions in police interviews. Furthermore, the court needed to determine if the jury should be directed, under the Edwards principle, to draw an adverse inference from the accused's failure to mention certain facts during the interview.

In reaching its decision, the court closely examined the record of the interview and the context in which the omissions occurred. The court found that the omissions were indeed deliberate and reflected a consciousness of guilt on the part of the accused. Applying the principles from R v Ciantar, the court concluded that an Edwards direction was appropriate, as it was necessary to draw the jury's attention to the adverse inferences that could be made from the accused's omissions. The court held that the omissions were significant enough to warrant such a direction, as they could potentially influence the jury's assessment of the accused's credibility and the likelihood of his guilt.

The court's final orders included the direction to the jury that they could consider the deliberate omissions in Johnstone's record of interview as evidence of his consciousness of guilt. The jury was instructed to draw adverse inferences from these omissions, in accordance with the principles set out in R v Ciantar and the Edwards direction. The court's decision reinforced the importance of the accused's obligation to provide a full and truthful account during police interviews and highlighted the consequences of failing to do so.

Orders