R v Lewis - [2000] VSCA 140

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 191 of 1998

THE QUEEN

EDWIN ANDREW LEWIS

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JUDGES:	WINNEKE, P., TADGELL, J.A. and HEDIGAN, A.J.A.
WHERE HELD:	MELBOURNE
DATES OF HEARING:	27 and 28 March 2000
DATE OF JUDGMENT:	9 August 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 140

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Criminal law – Murder – Evidence of confessional statements to undercover police operative – Undercover police operative introduced into the cell of the accused following charge of murder being preferred and whilst accused awaiting extradition to State of jurisdiction – Whether trial judge should have excluded confessional evidence in accordance with residual discretion – R. v. Swaffield/Pavic (1998) 192 C.L.R. 159 considered.

Criminal law – Practice and procedure – Empanelment of jury – Judge taking excuses from panel members in writing – Whether breach of Juries Act 1967 (Vic.), s.13(2).

Criminal law – Directions to jury – Lies amounting to consciousness of guilt – Whether judge entitled to direct jury that certain alleged lies were capable of amounting to consciousness of guilt.

Criminal law – Directions by judge as to use which jury can make of confessional evidence – Whether judge bound to direct jury that such evidence can only be used if satisfied that such confessions have been made and/or are a true acknowledgment of guilt.

Criminal law – Discretion to discharge jury – Judge commenting upon undue length of counsel’s final address and repetitive nature of comments therein – Respective obligations of counsel and judge considered.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. P.A. Coghlan Q.C. and Ms. M. Sexton	P.C. Wood, Solicitor for Public Prosecutions
For the Applicant	Mr. O.P. Holdenson Q.C. and Ms. J.A. Dixon	Victoria Legal Aid

WINNEKE, P.,
TADGELL, J.A.,
HEDIGAN, A.J.A.:

Background

In May 1998, the applicant, Edwin Andrew Lewis, was presented for trial in the Supreme Court on two counts of murder - one of murdering Dennis Richard Paul Higgins (“Mr. Higgins”) and the other of murdering Mr. Higgins’ wife Carmel Margarita Higgins (“Mrs. Higgins”). Each murder was alleged to have occurred on 21 April 1995 at premises owned and occupied by Mr. and Mrs. Higgins at 15 Deanswood Road, Forest Hill. The presentment also alleged, as count 3, that, on the same day, the applicant stole certain personal belongings of Mr. Higgins and a further offence of stealing a Porsche motor vehicle belonging to Mrs. Higgins (count 4). The applicant pleaded not guilty to the murder counts, and to the count of theft alleged in count 3. He pleaded guilty to the theft of the motor car alleged in count 4.

After a trial lasting two months, the jury, on 14 July 1998, returned a verdict of not guilty of the murder of Mr. Higgins, but guilty of manslaughter; guilty of the murder of Mrs. Higgins; and guilty of the theft alleged in count 3. On 6 August 1998, the trial judge sentenced the applicant to ten years’ imprisonment for the manslaughter of Mr. Higgins (count 1),…

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 Lewis

Details

AGLC: R v Lewis [2000] VSCA 140
Case: [2000] VSCA 140
Decision Date: 9 August 2000

CaseChat Overview and Summary

The case of R v Lewis came before the court where the defendant faced charges of murder. The central issues in the case included the admissibility of confessional statements made to an undercover police operative, the manner in which the jury was empanelled, the judge's directions to the jury regarding consciousness of guilt and the use of confessional evidence, and the judge's discretion to discharge the jury based on the length and content of counsel's final address. The court had to determine whether the trial judge should have excluded the confessional evidence under the residual discretion as discussed in R. v. Swaffield/Pavic, whether the written submission of excuses from panel members complied with the relevant legislation, whether the judge was entitled to instruct the jury that certain lies amounted to consciousness of guilt, and whether the judge was obligated to direct the jury on the proper use of confessional evidence.

The court considered the admissibility of the confessional statements, examining whether the judge should have excluded them under the residual discretion. It reviewed the circumstances in which the undercover operative was introduced into the accused's cell and assessed whether the judge's decision to admit the evidence was justified. The court also evaluated the compliance of the judge's handling of jury excuses with the requirements of the Juries Act 1967 (Vic.), specifically section 13(2). Regarding the directions to the jury on consciousness of guilt, the court deliberated on whether the judge was entitled to instruct the jury on the nature of certain lies. Furthermore, the court examined the judge's obligation to instruct the jury on the proper use of confessional evidence, considering whether such direction was mandatory.

In its ruling, the court concluded that the trial judge did not err in admitting the confessional statements, as the circumstances did not warrant exclusion under the residual discretion. The court found that the written submission of excuses from panel members was in compliance with the relevant legislation. Regarding the directions on consciousness of guilt, the court held that the judge was not precluded from instructing the jury on the nature of certain lies. The court determined that while the judge had some discretion in directing the jury on the use of confessional evidence, it was not bound to provide such direction. Finally, the court assessed the judge's discretion to discharge the jury based on the length and content of counsel's final address, concluding that the judge's comments were within the scope of permissible conduct.

The court made several orders in the case, including upholding the trial judge's decision on the admissibility of the confessional statements, confirming the compliance of the jury empanelment process, affirming the judge's entitlement to instruct the jury on consciousness of guilt, and clarifying the judge's discretion regarding the use of confessional evidence. The court also noted that the judge's comments on counsel's final address did not breach the respective obligations of counsel and judge.

Orders