R v Mocenigo (Ruling No. 4)
[2012] VSC 442
•20 September 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 0029 of 2012
| THE QUEEN |
| v |
| ADAM MOCENIGO |
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JUDGE: | LASRY J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 September 2012 | |
DATE OF RULING: | 20 September 2012 | |
CASE MAY BE CITED AS: | R v Mocenigo (Ruling No. 4) | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 442 | |
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CRIMINAL LAW – No case submission – Test for no case in a circumstantial case – Whether evidence intractably neutral as to murder, manslaughter, accident – Use of consciousness of guilt evidence where evidence is not intractably neutral.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A Tinney SC with Ms S Flynn | Office of Public Prosecutions |
| For the Accused | Mr J McMahon with Ms K Argiropoulos | Michael J Gleeson & Associates |
HIS HONOUR:
The accused man, Adam Emilio Mocenigo, is charged with the murder of Kristy-Lee Hall. It is alleged that he killed her on Saturday 26 March 2011. He has pleaded not guilty to the count of murder and the Crown case has now been completed.
On behalf of the accused, Mr McMahon of counsel who appeared with Ms Argiropoulos, has submitted that there is no case for his client to answer on the count of murder. In essence, that submission is based on the assertion that on the evidence as it stands, the jury could not possibly draw an inference that at the time of the death of the deceased, the accused intended to kill her or to cause her really serious injury and also that the jury could not infer that his acts caused her death.
The test to determine whether there is a case to answer in a circumstantial case
It is first important to be clear about the principles which apply to an application of this kind. In R v Doney[1] the High Court confirmed the decision of Attorney-General's Reference (No. 1 of 1983),[2] which included a rejection of the view that a trial judge could stop the trial if, in his or her opinion, a verdict of guilty would be unsafe and unsatisfactory.
[1](1990) 171 CLR 207 (“Doney”).
[2](1983) 2 VR 410 (“Attorney-General's Reference (No. 1 of 1983)”).
The High Court then went on to resolve the issue by stating the test as follows:[3]
It follows that if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations, and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence, such that taken at its highest it will not sustain a verdict of guilty.
[3]At pp 214-15.
The test has been considered on numerous occasions by trial judges since Doney was decided by the High Court. Often it is the case that the test arises for consideration in cases where the prosecution case against an accused is circumstantial. This is such a case.
In this case the allegation against the accused is one that he murdered Kristy-Lee Hall on or about 26 March 2011. The case against him on the count of murder is entirely circumstantial. I will return to the detail of the case against him shortly. In Doney there was an earlier issue to be resolved by the Court which was whether a piece of circumstantial evidence could amount to corroboration of an accomplice. The Court concluded that it could and said:[4]
Circumstantial evidence is evidence which proves or tends to prove a fact or set of facts from which the fact to be proved may be inferred. Circumstantial evidence can prove a fact beyond reasonable doubt only if all other reasonable hypotheses are excluded (citations removed).
[4]At p 211.
In Attorney-General’s Reference (No. 1 of 1983), the Victorian Court of Appeal made it clear that:[5]
The question whether the Crown has ultimately excluded every reasonable hypothesis consistent with innocence is a question of fact for the jury and therefore, if the Crown has led evidence upon which the accused could be convicted, a trial judge should not rule that there is no case to answer or direct the jury to acquit simply because he thinks that there could be formulated a reasonable hypothesis consistent with the innocence of the accused which the Crown has failed to exclude. Similarly a trial judge should not rule that there is no case for the accused to answer because he has formed the view that, if the decision on the facts were his and not the jury's, he would entertain a reasonable doubt as to the guilt of the accused. It is always a question for the jury whether a reasonable doubt exists as to the guilt of the accused and as Menzies, J. explained in Plomp's Case, in a case based on circumstantial evidence, the necessity to exclude reasonable hypotheses consistent with innocence is no more than an application to that class of case of the requirement that the case be proved beyond reasonable doubt.
[5]At p 415.
On behalf of the accused, Mr McMahon submitted that in an entirely circumstantial case there will be no case to answer where a reasonable inference consistent with innocence is open and cannot be rationally excluded as irrational or fanciful. He submitted that the test I must apply is whether as a matter of law, reasonable hypotheses can be excluded.[6] Ormiston JA in R v Cengiz[7] said:
If it can be shown that it is open to the jury to hold that all other hypotheses should be excluded as irrational or unreasonable, then it is important to allow the jury to apply their collective minds to the issue…
[6]Transcript, p 663.
[7][1998] 3 VR 720 (“Cengiz”) at p 721.
Mr McMahon also relies on the observations of Harper AJA in that case when he said:[8]
It sometimes happens in a circumstantial case that the evidence is not in dispute, but the parties disagree about the inference or inferences which should be drawn from the facts. In such cases, the judge must take the case away from the jury if and only if an inference consistent with innocence is not only open on the undisputed evidence but is also an inference which cannot be rationally excluded.
[8]At p 735.
I take the position to be that I have to deal with the question not as to what I would conclude but what, in my opinion, it would be open for the jury to conclude.
The debate on this application proceeds on whether or not there is any evidence that could support a conclusion that the Crown had proved beyond reasonable doubt that the accused caused the death of Kristy-Lee Hall and whether, if he did, he had an intention to kill her or inflict on her really serious injury. If the answer is that there is, then murder, and the alternative count of manslaughter, will be left for the jury’s consideration. Otherwise the trial will continue on the alternative count of manslaughter only. It is not submitted that there is no case for the jury to consider on the count of manslaughter.
Is there a case to answer?
The Crown submits that there is sufficient evidence for the count of murder to be considered by the jury and they point to various aspects of the evidence which suggest that any alternative hypothesis consistent with innocence of murder could be rejected.
In opening the case to the jury at the start of the trial, Mr Tinney SC who appears with Ms Flynn for the prosecution, identified the case as a circumstantial one and, in summary form, after outlining what he expected the evidence to be in some detail identified the circumstances that pointed to murder as follows:
The deteriorating and unhappy relationship between the accused and the deceased at the time she died; the concerns that the accused had that she was seeing another man, the repeated and over-the-top angry behaviour by the accused towards Ms Hall on the Saturday afternoon; the cessation of all contact between Ms Hall and the outside world from the time she went into the company of the accused at about 6 o'clock on Saturday, 26 March 2011, which would tend to indicate she died on that evening; the fact that, on the accused's own admission, Ms Hall died in his presence; the failure of the accused to seek any medical assistance for Ms Hall when she suffered or commenced to suffer the injury or condition, whatever it was, that caused her death; the failure by the accused to notify the police of the death of the deceased immediately or at any time after it had occurred; the removal and disposal and secretion of the body of the deceased in Stony Creek at Kinglake some days or some time at least after her death; the return of the accused to that remote location apparently the next day to better secrete that body and the steps that were taken in that regard; the large number of lies told by the accused to police and friends and family of Kristy-Lee Hall from the time of her death about where she was, about what had happened and, in particular, the very important lie told by him to a number of people, that she had gone out from their home, never to return, on Sunday, 27 March 2011; the failure of the accused to make any mention in his statement of 6 April 2011 of the second trip to Kinglake, which trip was made for the purpose of better hiding the body; the acknowledgment to Dr Ogden and Sergeant Koger that he had done a bad thing, that he knew he was going to gaol for a long time, that he wanted his kids and parents to forgive him, that he was not normally a violent person, that he did not know what he did and why he did it and that he was, to use his term, "stuffed"; and then finally in this list…, the dishonest and implausible account, so the Crown would say, that he eventually did give to police explaining why it was that this healthy young woman had died in his presence.
The Crown case is that the accused murdered Kristy-Lee Hall on the night of Saturday 26 March 2011 at their home in Heidelberg Heights. After initially lying about the reasons for the disappearance of the deceased, upon the discovery of her body on 29 March 2011, the accused ultimately accepted that the deceased died unintentionally during an argument and struggle with him. He claimed, and has in each account of what occurred, that the incident leading to Kristy-Lee Hall’s death occurred on Sunday 27 March 2011 as the deceased was preparing to go out and whilst Aaron Taylor and Carlie Simons were at his premises. There are no witnesses to whatever altercation occurred between the deceased and the accused. No-one else can say when or how it occurred. In police interviews the accused has given various accounts of it but at no stage agreed that he intended to kill the deceased or cause her really injury.
In a later conversation with police which was covertly recorded, the accused said that Aaron Taylor had come into the room and said, "Are you gonna ring the cops?" or "You should ring the cops or, you know, what are you going to do?" The accused said that he did not know what to do and that Taylor had said they should take her out the back, suggesting it was Aaron Taylor's idea to move the body. He later said he did not know whether to ring the police or if it was too late for an ambulance but he tried to resuscitate her and tried everything he could.
In that context, whether the incident resulting in the death of the deceased woman happened on the Saturday night or the Sunday morning may be significant as I will describe shortly.
The time of death of the deceased
I find that it would be open to the jury to find beyond reasonable doubt that the deceased died on Saturday night. The facts which may be used to draw this inference include the fact, which I do not understand to be in contest, that the deceased woman had no contact with anyone on the evening of Saturday 26 March including Teazis who had sent her an SMS to which she had not responded, despite this being their usual practice; and the fact that when she was found dead on 29 March, she was wearing the same or similar clothing as she had been wearing when she left the company of Ross Teazis, with a syringe of the brand he had given her located within her bra.
The accused said that the death of Kristy-Lee Hall occurred on Sunday 27 March 2011 whilst his friends Aaron Taylor and Carlie Simons were at the premises. Aaron Taylor later assisted the accused in the disposal of the body of the deceased and on that basis is charged as an accessory or assistant to the offending and did not give evidence in this trial. Carlie Simons, his partner, did give evidence and in my opinion, her evidence is relevant to when the deceased met her death.
Ms Simons said that she and Taylor went to the accused’s house on the afternoon of Sunday 27 March, to drop off birthday invitations to their son’s first birthday and when they were there, they saw Adam and Chloe just inside the front yard. The accused told them that Kristy-Lee was not there and he had tried to call her. She said they then helped him fix the front of his car. There was nothing to indicate that there was any problem. She said they got there at around 1.00 or 2.00pm and thought they left at about 3.30. At some stage, the accused and Aaron Taylor headed off to a bottle shop to get a drink. The closed-circuit television (CCTV) footage shows the accused and Aaron Taylor purchasing items at 2.22pm. The Crown place emphasis on this CCTV record to demonstrate that the account of the accused about what occurred on the Sunday should be rejected.
When they came back, Aaron Taylor had lollies and the accused had a four pack of Wild Turkey cans. Ms Simons said that after they came back with Wild Turkey, they then left about five minutes later. Cross-examined about when they got to Mocenigo’s house on Sunday morning she agreed she had said in her statement that it was 11.30am whereas in her evidence she had said it was 1.00pm. She agreed that they were there for about 2½ hours and she knew that her partner Aaron Taylor was out the front with her for the whole time.
In my opinion, this evidence makes the assertion by the accused that the deceased met her death on Sunday 27 March 2011 while Taylor and Simons were at the Heidelberg house implausible. It would be open to the jury to conclude that it is completely inconsistent with his various accounts which they would be entitled to reject.
The failure to obtain medical assistance
One of the pieces of evidence the Crown rely on as evidence from which murderous intent can be inferred is failure by the accused to seek medical assistance for the deceased, whenever the incident occurred. They rely on the fact that the Austin Hospital was nearby although they might just as easily rely on the failure by the accused to call 000 and obtain an ambulance or police or both. The accused did not do that.
On behalf of the accused, Mr McMahon submitted that:[9]
The failure to obtain medical assistance, in an environment where we have observed the accused on tape for hours and have some sense of his nature, character and demeanour, in combination with his explanations of helplessness and incompetence, the failure to obtain medical assistance, where those explanations are in evidence and where there is no contrary evidence, if it is not intractably neutral, is the evidence - well, I suppose it's intractably neutral or there is an explanation, which, if rejected, the evidence returns to being intractably neutral.
I reject that submission. In my opinion, it would be open to the jury to reject panic as an explanation for the failure to obtain assistance. However, the matter does not end there.
[9]Transcript, p661.
Evidence about the circumstances of the death of the deceased lacks precision. Only the accused has given an account of it. He has done so on several occasions and there are inconsistencies in the various accounts but there are themes which run through his descriptions. First, he says it happened on Sunday morning while his friends Aaron Taylor and Carlie Simons were at the premises but not in the room where the accused and the deceased were. Second, he says that the incident began with a request from him that they discuss their relationship and the friends of the deceased who were so often spending time with her to the exclusion of him. Third, he says there was a physical confrontation where he held her in a bear-hug manner and they fell to the bed. Fourth, after a period of time the deceased was not breathing and he tried to resuscitate her but failed.
In a written statement made on 6 April,[10] which was read to members of the Homicide Squad as part of the record of interview,[11] the accused stated that:
…I heard her making strange noises. She was on her front and I rolled her over onto her back. I thought she had passed out but it was then I realized she wasn’t breathing. We were both still on the bed and I shook her to try and wake her up but she did not move, I then tried to give her mouth-to-mouth resuscitation. In doing so, She coughed something into my mouth but didn’t start breathing again. I then slumped down on the floor crying in the bedroom and couldn’t move my legs. I think I was parlyzed by the shock of what had happened. It all felt too surreal.
Aaron then came into the bedroom and I said “she’s not breathing” he said “what the fuck have you done?” He asked me what the hell am I going to do? I responded crying that I didn’t know. Aaron said “we shouldn’t let Karly see this’. Aaron then grabbed a hold of Kristy’s legs and I grabbed a hold of her arms and we proceeded to take her from the bedroom through the back end of the house…we continued to take her towards the shed out the back of the property…
[10]Exhibit U.
[11]Exhibit V.
A difficulty for the accused’s submissions on this application is that if the jury concluded, on the evidence, that the death of the deceased occurred in the presence of the accused and by his actions on the Saturday night rather than the Sunday then the failure to obtain assistance is not explicable by the influence of Aaron Taylor. It is open, in my opinion, to the jury to infer that the accused lied about when the deceased died and that he did so because he knew that telling the truth would implicate him in the offence charged, that is, reveal his murderous intent by virtue of his inexplicable failure to obtain medical assistance.
The evidence of the pathologist Dr Ranson
It is important to note that unlike many cases, the evidence of the pathologist in this case has not revealed a cause of death, but there are some matters of significance. Dr Ranson’s autopsy was carried out on 30 March 2011. He carried out a thorough examination and, for the purpose of this case, the relevant part of that evidence, in summary, include:
·He observed clothing which was significantly similar to the clothing she wore on Saturday 26 March as described by Teazis;
·Significant decomposition of the body made identifying injuries more difficult but there was a blackened left eye, bruising to the arms and back;
·There was no natural cause of death that he could see but he would not exclude it; and
·Heroin may have been a factor in her death but that depended, as Dr Ranson described it, on the context in which it was taken.
It is true that the result of his evidence is that the doctor could not identify a cause of death. He could identify injury particularly to the left eye and other bruising which the deceased clearly did not have during the day of Saturday 26 March 2011. It would be open to the jury to infer that the injury to the eye was inflicted by the accused at the time that the deceased died.
The relationship evidence
In addition, the Crown point to the “deteriorating relationship” between the deceased and accused. While on its own this matter bears little weight, on the evidence taken at its highest, there could have been an escalation in the hostility between the two in the lead up to the death of the deceased.
The biggest indicator of the deteriorating relationship is the deceased’s relationship with Ross Teazis which developed “close to a year maybe” before the deceased died. In addition to this the deceased had told her family that she no longer had feelings for the accused, that they were sleeping in separate rooms and that she had commenced a relationship with another man. She said to friends that she was single, or that she was living with her ex-partner and that she remained living with the accused for the sake of Chloe. She also discussed various plans to move out with a number of witnesses.
The observations of friends also indicated an unhappy relationship. Belinda Fitzpatrick stated she felt that every time she returned after having left the room she felt as though the accused and deceased had argued as it felt “awkward”.[12] Kimberley Young described the relationship as “hostile and uncomfortable”.[13] However, Kimberley’s husband James Pivato described the relationship as having “ups and downs, like any other normal relationship…they’d argue sometimes. Other times everything would be fine.”[14] Carlie Simons stated that “they were more like two people living together…they didn’t seem like partners”[15] and that they argued “a lot more than normal”.[16]
[12]Transcript, 236.
[13]Transcript, 260.
[14]Transcript, 241.
[15]Transcript, 281.
[16]Transcript, 282.
The accused’s own characterisation of the relationship is not a happy one. Although he appears to have considered that they were still in a relationship, and expressly said so to Senior Constable Meade, he repeatedly describes feeling like a single father, claims that the deceased was regularly absent and when she was present did little to help out around the house or with Chloe. He also repeats the idea that if he tried to discuss these issues with the deceased, she would get angry and/or leave.
In addition, the evidence indicates that, against that background, the deceased located what the jury might conclude was a hidden camera at the house a month or two before she died. She told a number of people about the camera and it may have been discovered in circumstances where the deceased was getting dressed in front of the heater and noticed a blue light flashing around the mantelpiece.[17]
[17]Transcript, 159, 237-38, 332-34, 338.
On the other hand it should be noted that there is no evidence before the jury of physical violence by the accused against the deceased at any stage prior to her death or of threats to kill or do harm being made to her.
The evidence which, taken at its highest, may indicate that the hostility between the accused and deceased escalated in the time leading up to her death includes arguments in the lead up to the deceased’s death and a suspicion on the part of the accused that the deceased was seeing someone else. Carlie Simons recounts that the last time she saw the deceased was the Tuesday or Wednesday before she died and that it “was really awkward. Like we’d just walked in on an argument or something. They were extremely nice and it was just really awkward...They were just really different to what they’re usually like when we visit them…It just felt like we’d interrupted something.”[18] Dorothy Lesser recounts an incident that happened at around 10.30pm, perhaps only days before the death of the deceased, which the accused was seen yelling at the deceased and gesticulating before walking inside yelling “you broke my fucking heart”.[19] Dorothy Lesser noted that there was no violence on that occasion and that she had not heard any other arguments from their house.[20] However, given the evidence of Belinda Fitzpatrick and Kimberley Young as to the state of the relationship, these incidents may be equivocal as to the question of escalation in the hostility of the relationship.
[18]Transcript, 283.
[19]Transcript, 165-75.
[20]Transcript, 174.
Adele Downs recounted a conversation she had with the deceased about two weeks before she died in which the deceased told her that the accused had seen her and Ross together at a café and an argument had ensued. The deceased told her sister that the accused “was really angry”,[21] though it is not clear whether the argument was in the presence of Teazis. Kimberley Young also gave evidence of the deceased telling her about a similar incident, though the deceased had told her she was with a friend’s boyfriend. Ross recounts having been seen with the deceased by Adam at a café although he stated that there was nothing dramatic or violent about the meeting, agreeing with the proposition put to him by Mr McMahon that it was just a chat.
[21]Transcript, 229.
Dr Ogden gave evidence that the accused had told him that “for the previous fortnight he had been concerned that his partner was seeing someone else”.[22] Sergeant Koger noted after the interview, that the accused as the accused saying he was 98% sure the deceased was seeing another man.[23] The accused later denied having said this. Though it is not located in time, Carlie Simons gave evidence of an incident which occurred when she was under the belief that Kristy-Lee was seeing someone else and the accused got “really upset and really aggressive towards the other person [that Kristy-Lee was seeing] verbally…just saying that he was going to hurt him if she’s with someone else.”[24]
[22]Transcript, 574.
[23]Transcript, 582.
[24]Transcript, 282.
There is also evidence that the accused was angry with the deceased on 26 March 2011, being the day that the Crown contend that the deceased woman died. The deceased spent much of that day in the company of Ross Teazis and while they were together in a cafe, Teazis witnessed the receipt by the deceased of several phone calls from the accused:[25]
[25]Transcript, p 349.
How many calls did she receive? I don't mean a precise number but approximately? --- A lot.
A lot? --- Yeah.
Who were the calls from, as far as you were aware? --- From Adam, I think.
From Adam. Could you actually hear what was going on in these phone calls? --- He was mainly yelling a lot, yeah.
Who was yelling a lot? --- Adam. He was yelling at Kristy over the phone.
What was he yelling, could you tell? --- I don't know. Just being, I suppose - I was just hearing an aggressive sort of voice over the phone, which was his. I don't know exactly what he was saying, but he was upset or maybe drunk. I
don't know.
What was she doing during these calls, as in was she talking to him? --- She was trying to talk to him but it wasn't getting anywhere and eventually he'd just hang up and then ring back again.
Who would hang up? --- Adam.
And then you say and ring back again? --- Yeah.
After how long? --- A short period of time.
Can you say more about this yelling, what the pitch and tone of it was like? --- Just out of control sort of yelling, you know, like he was freaking out.
Like? --- It was like he was freaking out on the other side of the phone.
Did she actually say something to you about the accused – about how he was during these phone calls? --- That he was, you know, most likely drunk and she wasn't looking forward to going back home.
The call charge records[26] show three calls from the accused to Kristy-Lee Hall between 2:27 and 3:39 pm that day. A little over two hours later, she returned to the Heidelberg premises where the accused was.
The open inferences
[26]Exhibit X.
On the basis of the evidence I have referred to so far, in my opinion it would open to the jury to come to the following conclusions:
(a)That there was hostility between the deceased and the accused, particularly on 26 March 2011, although it had not previously involved violence;
(b)That the deceased met her death on the evening of Saturday 26 March 2011 in the company of the accused;
(c) That during whatever confrontation occurred, the accused at least assaulted the deceased causing the bruising identified by the pathologist;
(d)That upon it being realised by the accused that the deceased was in a life threatening predicament as a result of his conduct, he took no step to obtain emergency assistance and that an explanation for not doing so based on panic is fanciful;
(e)That bearing in mind that the accused asserted that he wanted to save the relationship his failure to obtain medical assistance so as to save the deceased is inexplicable;
(e)That the accused lied about when the incident with the deceased occurred and when she died;
(f)The accused told that lie because he knew he needed an explanation for not obtaining medical assistance and that came in the form of being persuaded not to make any contact with the police by Taylor because he was not there on the Saturday evening;.
(f)That this conduct is consistent with the accused having done an act which caused the death of Kristy-Lee Hall and done with the intent, at the time of the incident of causing her death, of either killing her or causing her really serious injury.
Post-offence conduct as consciousness of guilt or implied admissions
In addition to the matters I have just referred to the Crown submits that other post-offence conduct of the accused, and the lies that he told as to the whereabouts of the deceased may be used as evidence of consciousness of guilt, or as it is now better known, post-offence conduct and implied admissions. Such evidence, according to the Crown, is to be used as evidence in relation to both:
(1)the actus reus of the crime of murder, namely, an attack upon the deceased that led to her death; and
(2)the intent to cause death or really serious injury at the time of the attack in question.
Apart from the failure to obtain medical assistance and the alleged lie by the accused about when the deceased met her death, the other conduct relied on includes:
(a)The failure by the accused to notify the police of the death of the deceased immediately or at any time after it occurred;
(b)The disposal and secretion by the accused of the body of the deceased in Stony Creek at Kinglake West;
(c)The return by the accused the next day to the location where the body had been disposed of to better secrete the body;
(d)The conduct of the accused in asking his friends Carlie Simons and Aaron Taylor to falsely say to the police that they had seen the deceased at the Heidelberg Heights home at 10am on Sunday 27 March 2011; and
(e)The conduct of the accused in making a statement to James Pivato and Kimberley Young to the effect of “just to get the story straight, I only left once last night” made on morning of Tuesday 29 March 2011.
The lies relied on include:
(a)The lie told to Constable Strangman shortly after 6.07pm on Monday 28 March 2011 that Kristy-Lee Hall had left the house at around 10am on the Sunday morning and got into a silver car that was parked down the street;
(b)The lie to Pivato and others at the South Morang property after 8.30pm on Monday 28 March 2011 that he had not seen the deceased since the Saturday night;
(c)The lie told to Senior Constable Lee-Anne Meade after 8.30pm that he had last seen the deceased when she had left their house shortly after 10.30am on Sunday 26 March 2011;
(d)The lie told to Detective Senior Constable Jason Williams that he had last seen the deceased at about 10am on Sunday 27 March 2011; and
(e)The lie told to Detective Senior Constable Jason Williams in relation to a denial as to what he had said to Dr Ogden.
In my opinion, on their own these matters are “intractably neutral” within the meaning discussed in a number of cases and as such would not be enough to sustain an inference of murderous intent, though they may sustain an inference of causation. Be that as it may, as the Court of Appeal said in R v Ciantar:[27]
But in most murder cases the evidence is more extensive than that. Usually, the Crown presents evidence about the relationship if any between the deceased and the accused, the events leading up to the time of death, the place and time and the circumstances of the death, the means of killing and the cause of death, other injuries which may have been inflicted on the deceased and any injuries suffered by the accused in the course of the killing.
Although the post-offence conduct may not be enough in itself to sustain an inference that an accused killed with intent to kill or cause really serious injury, as opposed to some lesser state of mind, such evidence, when combined with evidence of the accused’s words and conduct before and during the killing and forensic evidence may well satisfy the jury beyond reasonable doubt that the accused killed the deceased with murderous intent. And comparable reasoning is equally applicable in trials for other offences.
In some cases, for example, there may be something about the exact terms of a lie which when matched against the known circumstances of the actus reus leads a jury to conclude beyond reasonable doubt that the accused had the necessary intent or mens rea….
[27][2006] VSCA 263 at [66].
In my opinion, it is open to the jury in looking at the united force of the evidence, including the post-offence conduct to which I have referred, to be satisfied that the two elements of murder in contention in this case have been proved beyond reasonable doubt. Whether or not they will, is another question.
It follows that I reject the submissions made on behalf of the accused in their separate submissions on consciousness of guilt, which read as follows:
The Court in Ciantar gave the following example at [65]:
Of course, there will be circumstances in which post-offence conduct is incapable of being probative of guilt of the charged offence as opposed to a lesser alternative or, another count on the presentment where there is a multiple-count presentment or another offence where it is disclosed by the evidence. For example, if a case of murder were presented to a jury on the sole basis that the accused admitted that he killed the deceased unlawfully, but denied murder, and the only evidence of the killing, apart from the admission, was that the accused had fled the killing and initially denied involvement in it, the jury could not properly be satisfied that the accused was guilty of murder. On the limited evidence available, one could not exclude as a reasonable possibility that the accused was guilty of manslaughter or possibly some lesser included offence. And the jury would need to be so instructed.
It is submitted that in this case, the post offence conduct of the accused falls within the category of cases identified in Ciantar where the conduct is equally consistent with manslaughter or is intractably neutral. In this case, the relationship evidence adduced by the Crown did not demonstrate the existence of a state of animosity on the part of the accused towards the deceased, nor were there any previous acts of physical violence. Nor is there anything about the events leading up to the death, the circumstances of the death, the means of killing and the cause of death which, combined with the post offence conduct of the accused, could sustain an inference beyond reasonable doubt that the accused murdered the deceased (see Ciantar at [66]-[67] and [72]).
Finally, there are several occasions on which the accused gave an account of these events to police once he had begun to admit that the death of the deceased occurred in his presence and in the course of some struggle with him. The Crown made much of what they claim are inconsistencies in those accounts. In my opinion, for the purposes of this application it is unnecessary for me to further examine that material.
Conclusion
In dealing with the application that I should remove the case for murder from the jury’s consideration, I have to determine whether there is evidence that is capable of sustaining the inference that the accused caused the death of the deceased and that when he did so, he intended either to kill her or cause her really serious injury. Applying the test outlined by Ormiston JA in Cengiz, if it can be shown that it is open to the jury to conclude that all other hypotheses should be excluded as “irrational or unreasonable” then I must allow the jury to consider the matter.
In my opinion such an inference is open to be drawn on the evidence, including from the post-offence conduct. It is open to the jury to conclude that the accused was motivated to act by the deteriorating relationship and the likelihood of her having a relationship with another man. That is a first step. If they next conclude that the deceased met her death on Saturday night 26 March 2011 when only the accused, the deceased and their child were in the house that would be a significant conclusion that is open on the evidence. If they then conclude that the damage to the left eye of the deceased is consistent with a blow being struck to her by the accused then there is evidence of some violence by the accused to the deceased at that time. In those circumstances, the jury would be entitled to regard a failure to obtain medical assistance for the deceased as evidence of the accused’s intent for the death of the deceased. In the context of these circumstances, they would be entitled to regard an innocent explanation for not doing so as fanciful.
That evidence in combination with the lies told by the accused about what had happened to the deceased and the post-offence conduct, including the secreting of her body, could sustain a conclusion that, in whatever way it occurred, the accused caused the death of the deceased and at the time he did so, he intended either to kill her or cause her really serious injury.
I will therefore leave the count of murder for the consideration of the jury.
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