R v Lees
[2006] VSCA 115
•29 May 2006
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 137 of 2004
| THE QUEEN |
| v. |
| KEITH LEES |
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JUDGES: | MAXWELL, P., VINCENT and NEAVE, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 1 May 2006 | |
DATE OF JUDGMENT: | 29 May 2006 | |
MEDIUM NEUTRAL CITATION: | [2006] VSCA 115 | |
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CRIMINAL LAW – Conviction – Murder – Lies and consciousness of guilt – Whether statement by accused was implied admission or direct admission against interest – Whether Edwards direction required – Jury deliberation – Whether sufficient time for jury to deliberate.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J.D. McArdle, Q.C. | Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions |
| For the Applicant | Mr B. Fox | McNamaras |
MAXWELL, P.
VINCENT, J.A.
NEAVE, J.A.:
On 22 December 2004, the applicant (“Lees”) was found guilty by a jury of the murder of Barry Waters (“Waters”). The deceased was last seen on the evening of Friday, 6 April 2001. His body was discovered some 11 months later in bush near Reefton. The precise cause of death was never established.
The facts of the case
Lees and his son lived with Waters as boarders in South Oakleigh from December 2000, after meeting him through a local church. Waters and his wife had separated in September 2000, shortly before Lees moved in, when Mrs Waters and their two children left the family home. Waters was said to be a volatile man, and appeared to be suffering from an obsessive compulsive disorder (OCD), which primarily manifested itself through the hoarding of a large number of objects which filled his backyard and the back rooms of his house.
At first Mrs Waters kept her address secret from Waters, but after some time she disclosed it to Waters, and began visiting to facilitate him seeing their children. It was during these visits that Mrs Waters and Lees met. She became attracted to Lees, and Lees encouraged these affections. Despite some disputes, it also appears that Lees had gained the confidence of Waters. Waters, who had been devastated by the separation, had begun to seek treatment for OCD and for the distress he had felt at the breakdown of their marriage. Mrs Waters and Waters’ parents were also involved in this treatment.
Lees discouraged Waters from contacting his wife, and from believing that the marriage could be saved. At the same time, following some incidents between Waters and Mrs Waters, he encouraged Mrs Waters to take out an intervention order against Waters. She did so on an interim basis on 26 March 2001, and the full hearing of the application was to take place on 9 April 2001. In the lead up to the hearing date, Lees expressed concerns to other about how Waters might behave at the hearing.
On the evening of Friday, 6 April 2001, Waters caught a train from Oakleigh to Spencer St. He had arranged to be picked up by Lees after attending the Caravan and Camping Show at the Exhibition Buildings. He did not return home. He was officially reported missing by his parents after he failed to attend court for the intervention order hearing on 9 April.
Following Waters’ disappearance, Lees gave various accounts to Waters’ friends and family, and to police, about the events of the evening of 6 April. Most involved claims that Waters had been drinking and that, while being driven home by Lees, Waters had suddenly left the car in St Kilda. Lees claimed to have searched for Waters but not found him. Upon returning home, he said, he found that Waters’ car and bedding were missing from the house. Lees said to police that he thought Waters had fled to avoid the intervention order hearing.
From Sunday 8 April, Lees began using a Visa card belonging to Waters and a Fly Buys card in the name of Waters’ daughter, which Waters used. When sentencing Lees, the trial judge said that Lees had used the cards “to give the impression that [Waters] was still alive and to conceal [Lees’] involvement in his death”.[1] This use continued until 16 April. On 17 or 18 April, in a conversation with a Constable McClacharty, Lees said “I hope you don’t think that I’m using Barry’s card”.
[1]R v Lees [2004] VSC 187 at [17].
When Lees was informed by police that there was surveillance footage of him using the cards in a store, he left Melbourne in his car. On 19 April Lees admitted to Mrs Waters that he had been using Waters’ Visa card, saying that he had lent Waters money and had been “ripped off”.
As a former firearms instructor, Lees owned several guns. After he left Melbourne, he concealed five firearms in the bush near Broken Hill, which were later found by the police. He then moved into a camping ground at Buronga. He made contact with Mrs Waters, with a view to seeing her on Anzac Day. (After Waters’ disappearance, Lees had invited Mrs Waters and her children away with him, and while they were away their relationship had become a sexual one.) On Anzac Day, Mrs Waters cooperated with police so that the conversation was taped. Lees was arrested at his hotel that night, but later released without charge. His car was examined and a tracking device secretly installed. His campsite in Buronga was searched, and another four firearms were located.
The tracking device revealed that, on 7 May 2001, shortly after his release, Lees’ car stopped near Reefton, one hundred metres from the place where Waters’ body would be found the following year. A police search at the time failed to locate anything in the vicinity. But when the body was located by a Melbourne Water official on 6 March 2004, Lees was arrested and charged with murder. A number of .22 calibre cartridges and bullets were located in the vicinity of the deceased’s remains. All Lees’ firearms other than one .22 calibre rifle had been accounted for.
The trial
On 25 November 2003, Lees appeared in the Supreme Court for trial. He pleaded not guilty to the charge of murder. A number of applications were made to exclude evidence. The trial continued until 20 December 2003, when the jury retired to consider its verdict. Some jurors had indicated, through the foreperson, that they could not sit beyond the end of 23 December.
At 3:30 pm on 22 December, the jury returned a verdict of guilty. On 27 May 2004, following a plea hearing on 23 April, Lees was sentenced to 20 years’ imprisonment with a non-parole period of 16 years.
Lees now makes application for leave to appeal against conviction. Notice was previously given of an application for leave to appeal against sentence, but that application is not being pursued.
The application for leave to appeal against conviction is based on seven grounds. The arguments in support of each ground were clearly and concisely set out by Mr Fox, counsel for Lees, in his outline of argument. This was of considerable assistance to the Court in its preparation for the hearing, and considerably shortened the time required for oral argument. We deal with the grounds in turn.
Ground 1: inadequate time for the jury to deliberate
As noted above, the jury did not retire to consider its verdict until 20 December 2003. The Judge was aware that the jury could not sit beyond 23 December, because of Christmas commitments. The approach of Christmas, and the risk that the trial would not be finished before Christmas, had been the subject of pre-trial discussion before the learned Judge at the beginning of December.
The argument for Lees was that –
“by reason of the complexity of the case and the pressure to reach a verdict by no later than 23 December 2003, the jurors were not ‘free to deliberate in complete and uninhibited freedom uninfluenced by any extraneous consideration whatsoever’.”[2]
[2]Reliance was placed on what was said in R v McKenna [1960] 1 QB 411 at 422.
In our opinion, this ground must fail. While circumstances can be imagined in which the approach of – for example – a public holiday imposed such time pressure on jurors that they felt unable to discharge their duty, there is nothing to suggest that this was such a case. It was common ground that no such concern was expressed by any member of the jury in the present case, nor was any application made by the defence for a discharge of the jury on the ground that the approach of Christmas was imposing undue pressure. This may have been in part because, as Mr Fox conceded, the jury’s deliberations could have resumed on Boxing Day had there been a need for more time.
It would be a rare case indeed where an appellate court considered it necessary and appropriate to intervene in circumstances where those actually charged with the critical task of considering the verdict apparently felt under no difficulty in doing so.
Ground 2: trial Judge’s refusal to permit cross-examination of a Crown witness on a particular topic
This ground of appeal concerns one part of the evidence of one of the minor prosecution witnesses at the trial. In all, 38 prosecution witnesses were called. Their evidence (including cross-examination) fills almost 1500 pages of transcript.
The witness in question was a Council officer who attended at the premises occupied by Waters and Lees, in answer to a complaint lodged by Lees (using an assumed name). The complaint was that the property was unsightly and needed to be cleaned up.
In the course of his evidence-in-chief, the Council officer said that the deceased –
“just came across as someone who was ... under a lot of stress, on the edge.”
On a later visit, however, he observed that the deceased –
“was in a good mood, he seemed pretty happy with what he had done [in cleaning up the property] and I was happy with what he had done, and we just left it at that.”
In cross-examination, defence counsel explored the basis for what the Council officer had perceived to be animosity between Lees and Waters, and sought to establish that there was nothing violent about his client’s demeanour or the content of his conversation. When defence counsel moved to the topic of the deceased’s demeanour, the Crown objected. It appears from the exchanges which took place with her Honour in the jury’s absence that the Crown anticipated, correctly, that the defence wanted to draw the witness’ attention to a prior statement where he had said words to the effect:
“I thought [Waters] was going to get violent”.
Her Honour disallowed this aspect of the cross-examination on the basis that some expertise was required before a person could make a prognosis as to whether a particular person was going to be violent. Her Honour concluded that the witness’ opinion on that matter was not relevant to the issues before the jury.
In our opinion, this ground is without substance. Rulings in the course of a trial on objections to particular questions are matters for the trial judge, to be determined in the circumstances in which they arise. In an exceptional case, where the evidence of a particular witness or the topic the subject of the objection were of special significance, it might be appropriate for an appellate court to be invited to consider whether the exercise of discretion (in upholding or rejecting the particular objection) was in some way affected by error of law. That is not this case.
Ground 3: Consciousness of Guilt
“I hope you don’t think that I’m using Barry’s card”
As earlier mentioned, the applicant used a Visa credit card of the deceased and a Fly Buys card of his daughter in the days following his death. The prosecutor at the trial contended that his purpose for doing so was the creation of a false impression that the deceased was still alive for some time after he had been killed, and thereby to conceal the applicant’s involvement in the death.
He argued in his final address that -
“He used the card primarily, members of the jury, to give the impression that [the deceased] was still out and about, to give a false impression that [the deceased] was not dead lying in a shallow bush grave in the ranges, but that [the deceased] was out and about buying petrol, groceries or computer gear; to give and cast a false impression about it.”[3]
[3]T1563–64.
In response, the contentions were advanced that the applicant used the Visa card to recover an outstanding loan and a bond paid to the deceased and that he made the statement fearing that, once it was learned that he had used the card, he would be wrongly implicated in the deceased’s murder. [4]
[4]The use of the Fly Buys card presented an obstacle to the acceptance of this explanation as no benefit could be received by the applicant.
Whether a deliberately false or misleading statement, by an accused person, can be properly regarded as an implied admission in a given case can only be answered by reference to the factual matrix within which the statement has been made. It is clear enough in the present case, in our view, that, when regard is had to the other evidence in the trial, it was open to the jury to so regard this statement. There is a distinct likelihood that they took into account both the use of the cards and the applicant’s initial denial, in reaching their finding that he was guilty of murder in a case in which the drawing of the necessary inference was dependent upon the combined effect of evidence of circumstances implicating the applicant and statements made by him concerning them.
The argument was advanced before us that at no stage in his address did the prosecutor make any reference to the use of the statement as an implied admission or employ the term consciousness of guilt. Accordingly, it was submitted:
“… it was unnecessary, indeed undesirable, that a direction of the kind with which Edwards was concerned be given in the circumstances of this case. In order to give it in this case the trial judge would have had to decide which of the applicant’s answers were or were not capable of being regarded as lies indicative of a consciousness of guilt. Such a direction here could have had the effect of raising an issue or issues upon which the parties were not joined, and of highlighting issues of credibility so as to give them an undeserved prominence in the jury’s mind to the prejudice of the applicant.”[5]
[5]Zoneff v The Queen (2000) 200 CLR 234 at 245.
Although the term – consciousness of guilt – was never used by the prosecutor, it is apparent from the passage set out above that the jury was invited to find that the applicant used the cards in order to conceal the fact that he had killed the deceased. If they rejected his explanation concerning the making of a deliberately false statement containing the assertion that he had never used the cards at all, the statement could have been perceived by the jury as providing support for that contention.
The principle to be applied in that situation is to be found in Edwards v R,[6] where it was stated:
“Ordinarily, the telling of a lie will merely affect the credit of the witness who tells it. A lie told by an accused may go further and, in limited circumstances, amount to conduct which is inconsistent with innocence, and amount therefore to an implied admission of guilt. In this way the telling of a lie may constitute evidence.
…
But not every lie told by an accused provides evidence probative of guilt. It is only if the accused is telling a lie because he perceives that the truth is inconsistent with his innocence that the telling of the lie may constitute evidence against him … . In other words, in telling the lie the accused must be acting as if he were guilty. It must be a lie which an innocent person would not tell. That is why the lie must be deliberate. Telling an untruth inadvertently cannot be indicative of guilt. And the lie must relate to a material issue because the telling of it must be explicable only on the basis that the truth would implicate the accused in the offence with which he is charged. It must be for that reason that he tells the lie. To say that the lie must spring from a realization or consciousness of guilt is really another way of saying the same thing. It is to say that the accused must be lying because he is conscious that ‘if he tells the truth, the truth will convict him’.”
[6](1993) 178 CLR 193 at 208-209.
What is important is not whether the term – consciousness of guilt – is used by counsel in the trial, but whether the process of reasoning towards guilt which a jury has been invited to adopt or which the jury itself may follow involves the use of a statement in this fashion. There is no magic in the expression itself and the focus must be placed, as in every other situation in which the admissibility, discretionary exclusion or the proper instruction to be given to the jury by a trial judge concerning evidence arises, upon the uses to which the evidence can be properly put and those to which it cannot.
In the present case, it was, as the trial judge recognized, of great importance that the jury reasoned carefully and correctly about any untrue statements made by the applicant who contended, as we have mentioned, that his use of the cards was totally unrelated to any involvement in the death of the deceased. That possibility had to be excluded beyond reasonable doubt before either the use of the cards or any false statement with respect to their use could be treated as incriminatory. Her Honour addressed these matters in her Charge in an appropriate fashion and in what could be described as conventional terms. She would have fallen into error had she not approached this evidence as she did.
Ground 4: Admissions against interest
“Barry is dead”
“they haven’t found the gun yet”
A witness at the trial, Dorothy Nash, a neighbour of the deceased, spoke to the applicant outside the house in South Oakleigh a few days after his disappearance and enquired whether there was any news concerning the deceased’s whereabouts. The applicant responded “Barry is dead”.
The trial judge instructed the jury that they could accept this statement as an admission by the applicant of his knowledge of that fact. She made no reference to any form of consciousness of guilt reasoning – that is, that the evidence could be viewed as constituting an implied admission – but addressed it as a straightforward and direct admission against penal interest. Her Honour was, with respect, quite correct to do so. The statement involved no lie nor anything which suggested the laying of a false trail, but rather a simple statement of fact which, if accepted as having been made and as being reliable, was incriminatory on its face.[7] No instruction directed to ensuring that the jury did not reason impermissibly to guilt upon acceptance that an untrue or misleading statement was made was either required nor would any have been appropriate in this situation. Similarly the other piece of evidence concerning which complaint is made under this ground did not require any such instruction.
[7]The defence argued that this statement, if made at all, should be viewed as nothing more than a facetious response to an irritating busy body.
Following the applicant’s arrest and knowing of his interest in firearms, a long time friend of the applicant, Vincenzo Aromataris, asked the applicant whether he was worried that, if the police found the deceased’s body and extracted a bullet from it, they might track it back to his gun and blame him. The applicant replied, “They haven’t found the gun yet”. [8] There was evidence in the trial that the applicant was in possession of a number of firearms at the relevant time, all of which save one were subsequently traced and excluded as the possible murder weapon. The witness based his enquiry purely upon speculation and suspicion, but received a reply that acknowledged that the deceased was dead, that a gun had been used and that he could not be implicated as the weapon had not been located. Again the jury was entitled to regard these acknowledgements as constituting admissions against interest in the circumstances. Their status as such in no way depended upon the application of the kind of consciousness of guilt reasoning with which the courts have been concerned in Edwards and the myriad of decisions that followed. There is no substance in this complaint.
[8]The defence contended, as we understand their position, that this statement represented nothing more than the peremptory dismissal of speculation and could not properly be regarded as an admission at all.
Ground 4: failure to distinguish between murder and manslaughter
Also under cover of ground 4, complaint was made that the learned Judge –
“should have directed the jury explicitly as to the distinction between the mental element required for murder compared with that required to find manslaughter to provide for the event that they concluded that the applicant was guilty of manslaughter”.
This ground was but faintly pressed in oral argument. Mr Fox conceded, quite properly, that the murder/manslaughter question was not really in issue in the case. In any event, her Honour gave what we would regard as appropriate directions to the jury about the different elements of the respective offences.
Ground 5: erroneous admission of evidence
Under this ground, the applicant argued that her Honour erred in law in failing to exclude evidence relating to –
(a) firearms and ammunition, and the fact that Lees had been a firearm’s instructor and a hunter and shooter;
(b) what was shown about the movements of Lees’ car following the attachment of the tracking device; and
(c) the statement of Lees (already referred to) that “they haven’t found the gun yet”.
Mr Fox argued that evidence of these matters should have been excluded because, in each case, the prejudicial effect outweighed the probative value of the evidence, such that its admission resulted in an unfair trial. Reliance was placed on the following passages from Festa v R[9]:
“Where evidence is relevant and of some probative value prejudice might arise because of a danger that a jury may use the evidence in a manner that goes beyond the probative value it may properly be given.”[10]
“And evidence is not prejudicial merely because it strengthens the prosecution case. It is prejudicial only when the jury are likely to give the evidence more weight than it deserves or when the nature or content of the evidence may inflame the jury or divert the jurors from their task.”[11]
[9](2001) 208 CLR 593.
[10]At 603 per Gleeson CJ.
[11]At 609-610 per McHugh J.
In our view, these objections are without substance. As was pointed out in the course of argument, the decision whether or not to admit evidence over objection is a matter for the trial judge’s exercise of discretion. The limits on appellate intervention in respect of such discretionary decisions are well-known.
In our view, her Honour’s exercise of discretion was in each instance plainly correct. Each of the pieces of evidence was directly relevant, and of significant probative value in a circumstantial case such as this. There is nothing to suggest that there was any risk of prejudice in the sense referred to in Festa.
The particular complaint in relation to the admission was that, since the applicant had made this statement while in custody, the statement had not been made voluntarily. There is no foundation for this submission.
Ground 6: erroneous admission of evidence
This was a separate ground, but the complaint was the same as that raised under ground 5. It concerned the evidence of the discovery of cartridges and bullets at the scene where the deceased’s body was found. For similar reasons to those set out in relation to ground 5, this ground fails.
Ground 7: accumulation of errors
The applicant relies on the matters the subject of the other grounds to contend that there was –
“such an accumulation of errors as to warrant setting aside the conviction”.
It follows from what we have said on the individual grounds that this ground must also fail.
For these reasons, in our opinion, the application for leave to appeal against conviction must be refused.
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