R v Ray - [2003] NSWCCA 227

Reported Decision:
57 NSWLR 616

New South Wales

Court of Criminal Appeal

CITATION: R v Ray [2003] NSWCCA 227 revised - 29/08/2003

HEARING DATE(S): 6/8/03

JUDGMENT DATE:
20 August 2003

JUDGMENT OF: Wood CJ at CL at 1, 124; Simpson J at 122; Adams J at 123

DECISION: 1. Appeal allowed; 2. Conviction quashed; 3. New trial ordered.

CATCHWORDS: CRIMINAL LAW - murder - directions to jury - directions about lies - consciousness of guilt - application to discharge jury - whether refusal to hear counsel prior to jury deliberations an error - whether verdict unreasonable and/or could not be supported on the evidence - whether miscarriage of justice.

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985
Evidence Act 1995

CASES CITED: Dhanhoa v The Queen [2003] HCA 40
Edwards v The Queen (1993) 178 CLR 193
Jones v The Queen (1997) 191 CLR 439
Morris v The Queen (1987) 163 CLR 454
M v The Queen (1994) 181 CLR 487
Osland v The Queen (1998) 197 CLR 316
Palmer v The Queen (1998) 193 CLR 1
Robinson v The Queen (1991) 180 CLR 531
R v Heyde (1990) 20 NSWLR 234
R v Sutton (1986) 5 NSWLR 697
Zoneff v The Queen (2000) 200 CLR 234

PARTIES :
Regina
David Stafford Ray

FILE NUMBER(S): CCA 60884/01

COUNSEL: M Grogan (C)
D Dalton (A)

SOLICITORS: S E O'Connor
D J Humphreys

LOWER COURTJURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 70036/00

LOWER COURT
JUDICIAL OFFICER : O'Keefe J

- 1 -

60884/01

WOOD CJ at CL

SIMPSON J

ADAMS J

Regina v David Ray

On 23 April 2001, the appellant was indicted for the manslaughter of his mother, Elvira Louise Ray, and was found guilty by a jury on 9 May 2001. He now appeals against that conviction and seeks leave to appeal against the sentence that was imposed, namely, a term of imprisonment for seven years and six months, with a non parole period of four years.

Facts

The deceased died during the night of 10/11 November 1997, at her home, and upon autopsy was found to have had lethal levels of both alcohol and morphine in her system. It was the Crown case that the deceased and the appellant had been drinking vodka, and that at some stage he had injected her intramuscularly with an excessive amount of morphine. It was this that was relied upon as an unlawful and dangerous act, which substantially contributed to her death, with the unlawfulness being pursued either as an assault, requiring proof that the injection was given without consent, or as an offence under sections 5 and 13 of the Drug Misuse and Trafficking Act which required proof that the morphine used had not been left at the home by a medical practitioner.

It was the appellant’s case at trial that the deceased most probably killed herself, either deliberately or accidentally, by the self administration of either some or all of the morphine found in her body, at a time when she was depressed. At the trial it was contended that there was no conclusive evidence as to where the morphine in her body had come from, how or when it was given or taken or in what quantities and even if some morphine had been injected by the appellant, whether that injection had been a significant contributing cause of her death.

As to whether any act by the appellant in injecting his mother with morphine constituted an unlawful act, it was submitted that there could be no case based on assault as there was no evidence that such an act was done without consent, and no case based on a breach of the Drug Misuse and Trafficking Act as the Crown could not exclude the reasonable possibility that any morphine that had been injected by him, had been prescribed or supplied by one of the doctors who had seen her, or that he honestly believed that to be the case.

Grounds of Appeal
Lies

This ground of appeal was argued to the effect that the trial judge’s directions on lies had been erroneous in law and entitled the appellant to a new trial. The answers which were given by the appellant in his record of interview, were not relied upon by the Crown as evidence of a consciousness of guilt, but as constituting lies going to the credibility of the version which he had given to police. Despite this, and without inviting counsel to address him on the question of whether an Edwards v The Queen (1993) 178 CLR 193 direction should be given, his Honour elected to give such a direction. However, his Honour did not identify with any precision, those matters that the jury were free to consider as lies evidencing a consciousness of guilt, as distinct from those matters going only to his credibility and held that Zoneff v The Queen (2000) 2000 CLR 234 was distinguishable. The way in which the directions were put, left a risk of a miscarriage of justice and could only have significantly bolstered the prosecution case, even though the Crown had not sought to use the evidence in that way.

Where the prosecution does not contend that a lie is evidence of guilt then it is unnecessary and inappropriate to give an Edwards direction, unless the judge apprehends there is a real danger the jury may apply such a process of reasoning - Dhanhoa v The Queen [2003] HCA 40. If such a direction is to be given for the protection of the accused, it should be done in terms that make it clear that it is given for such reason, and ensures that the evidence is not used in a way which risks bolstering the prosecution case, by elevating it to an admission of guilt.

Further problems of the summing up included: a direction which, contrary to the decision in Robinson v The Queen (1991) 180 CLR 531, was capable of inviting the jury to consider whether the appellant’s account to police had been affected by the circumstance that he had an interest to serve in lying to them; an inappropriate observation to the jury regarding the intoxication of the appellant; a direction which came close to offending the line of reasoning discussed in Palmer v The Queen (1998) 193 CLR 1; and a reference that his Honour in his time on the bench, had not experienced white lies, but only lies told for a serious criminal purpose, all of which tended to compound the problems caused by the directions on lies and bolstered the position that a miscarriage of justice had occurred.

Verdict unreasonable or not supported on the evidence

The test for this ground is whether the jury, acting reasonably, must have entertained a reasonable doubt as to the guilt of the appellant – M v The Queen (1994) 181 CLR 487 and Jones v The Queen (1997) 191 CLR 439. It is to be decided by the court after making its own independent assessment of the nature and quality of the evidence including its reliability and credibility – Morris v The Queen (1987) 163 CLR 454, as well as giving proper regard to the greater opportunity that the jury had in seeing the witnesses give their evidence.

When the factors identified in support of the prosecution case are considered, there are no possibilities which have the strength or cogency of a kind that would require the conclusion that the jury should have entertained a reasonable doubt as to the appellant’s guilt. In particular the admissions have very great probative value, particularly when viewed in conjunction with the items found in the appellant’s bag. Furthermore it appears unlikely in the extreme that the deceased could have, or would have injected herself with morphine, or ingested sufficient orally to reach the toxic levels found.

Orders:

1. Appeal Allowed

2. Conviction quashed

3. New trial ordered

60884/01

WOOD CJ at CL
SIMPSON J
ADAMS J
Wednesday 20 August 2003

Regina v David Ray

Judgment

1 WOOD CJ at CL: On 23 April 2001, the appellant was indicted for the manslaughter of his mother, Elvira Louise Ray. To that charge he pleaded that he was not guilty. On 9 May 2001, the jury returned a verdict of guilty, and he was subsequently sentenced to a term of imprisonment for seven years and six months, to commence on 23 April 2001, with a non parole period of four years. He now appeals against that conviction, and seeks leave to appeal against the sentence.

Facts

2 The deceased died during the night of 10/11 November 1997, at her home. When police arrived at the home on the morning of 11 November they found her lying on the floor, in the study/hallway area, near a desk on which there was a telephone, and an empty vodka bottle.

3 Upon autopsy she was found to have had lethal levels of alcohol and morphine in her system. Her blood alcohol level was 0.404 grams per 100 ml, and her blood morphine level was 0.6 mg per litre. Each was in the fatal range of toxicity. Apart from several other drugs in lesser concentrations, she also had a blood codeine level of 0.4 mg per litre.

4 She was a person who had a long-standing history of depression, and of problems with alcohol. She was taking a number of medications for a variety of health problems and nervous or mental disorders, including manic depression. She had a major problem with migraine headaches which had been treated with pethidine, usually injected by her general practitioner or by out of hours Doctors, although occasionally it was injected by members of her family. She also used Codral Forte to treat this problem.

5 The appellant who was 37 years of age, similarly had a long-standing alcohol problem and was on methadone, having overcome an earlier addiction to heroin. He had not, however, discontinued drinking, and it was common ground that he had been affected by alcohol on the night of 10 November and on the following day.

6 It was the Crown case that, during the hours preceding her death, the deceased and the appellant had been drinking vodka, and that at some stage he had injected her intramuscularly with an excessive amount of morphine. This was relied upon as an unlawful and dangerous act, which substantially contributed to her death. The allegation of its unlawfulness was pursued on 2 alternative bases: first, that it involved an assault, which required proof that the injection was given without the consent of the deceased; and secondly, that it involved an offence under sections 5 and 13 of the Drug Misuse and Trafficking Act which require proof that the morphine, which was used, had not been left at the home by a medical practitioner. A third basis which had been opened, to the effect that the unlawful act involved the provision of knowing assistance to the deceased to suicide, was not pursued.

7 The sister of the appellant, Julia Ray, gave evidence to the effect that, on the morning of 11 November, she had received a message from the appellant, on her answering machine, to the effect that their mother had died. She went to the house of the deceased at about 5:30 PM, after having alerted her father and a friend Peter Harrison. She noticed that there was a blanket and pillow near the telephone, and that the appellant appeared to be very upset and still affected by alcohol.

8 In a clothes basket in the hallway she found an unused phial of pethidine, which she placed into Mr Harrison's bag. In a sports bag sitting on the bed, which the appellant was accustomed to using, she found some boxes of tablets which appeared to be Rohypnol or Valium, and which contained chemists labels. She also found a pink plastic "Bras N Things" bag which she said contained a number of small syringes and three to five glass phials. Some of the phials, she said, appeared to have been used, because their tops had been broken off. Some of the syringes were in packets and two were loose, but she could not say whether they had been used. She also placed these various items into Mr Harrison's bag, but later returned them to the sports bag.

9 Initially, she said, she had collected these items and placed them into Mr Harrison's bag, because she was concerned for her brother's well-being and wished to ensure that he did not use the drugs himself. She acknowledged in cross-examination that the deceased shopped at Bras N Things.

10 She said that she had, additionally, found many other boxes of drugs around the house, including those in her mother's bedside table and in a cupboard. They included Codral Forte but she could not remember the names of the other drugs that she had seen. She thought that she had left them with Mr Harrison who had said that he would return them to Dr Holliday.

11 On the following day Ms Ray said that she returned to the house. During the afternoon she spoke to the appellant separately in a bedroom. On this occasion she said he "seemed a lot more coherent and, he didn't seem like he had been drinking alcohol". The account she gave of this conversation was as follows:

"A. Well, David actually called me into the bedroom to talk to him because he said he was really worried because he said he had given mum an injection of morphine for her headache and he said "that's okay because you have given her one before", something like that, and I sort of thought to myself, I said to him, "oh what time was that?" and he said, "that happened, I think it was about 11 o'clock that night before she died". I said to him, I think I said to him if he had any other things in the house he should be getting rid of that because I didn't think that anyone would understand that sometimes she had these sorts of headaches and that someone might think that something else had happened, you know, and I think that's all I said to him and by that stage I had already said other things to him about the vials and other things I had to put back.

Q. When did you do that?
A. I did that the night before when Jane I were going to do to the motel with the girls and Dad and Peter were going to stay with David and I thought, if they are staying with him tonight it's better if I put them back, to have him not get angry or upset about it or worry about it because they were actually there, they were there to look after him and I wasn't so concerned.

HIS HONOUR: Q. You gave evidence that he said to you that he had given his mother injections of morphine, not to worry as you had done that. Have you ever given your mother an injection of morphine?
A. No, no, not of morphine.

CROWN PROSECUTOR: Q. I think you had of pethidine?
A. Pethidine, yes.

Q. But not of morphine?
A. No I haven’t. I am trying to think back and I think he said morphine. “I gave a shot”, I think he said morphine. It might have been “a shot” or “an injection”.

HIS HONOUR: Q. Having regard to what you thought, don’t say what you thought as to what he told you he had injected.
A. I am pretty sure he said morphine but he said “you have given her a shot before” but I hadn’t. It was pethidine.”

12 She agreed in cross-examination that the words which the appellant had in fact used when saying that he was worried were that "there might be traces of morphine" in the deceased; and also suggested that he had said that “he had injected her at about 11 o’clock”.

13 Additionally she replied, in cross-examination, when asked to confirm that she had told him to "get rid of the evidence":

“A. I said to him that I knew that he had some morphine in the house because mum had told me that he had it there, and that he should not keep it, or words to that effect, because I didn't think that it would be understood that he had given it to her for a headache, I would have thought it didn't sound right, but then I was concerned about him at the time and I thought at the time that if he had given to her, it would have been for a headache, perhaps."

14 Although the italicised part of this answer was allowed to stand at the time, Mr Boulten successfully objected to any re-examination in relation to it, by reason of its status as second hand hearsay. No application was made to have the original answer struck out as nonresponsive, no doubt in order to avoid attracting attention to it.

15 Ms Ray gave evidence of some other conversations that afternoon involving the appellant. In the course of a conversation with their father, Ford Ray, she heard him say that he had come down to visit his mother because she was unstable, and "he had come to sort of bring her down from being agitated or not so depressed". He indicated that he had done the same thing a month or two before.

16 Another conversation, which she also overheard, was between the appellant and their uncle, Daniel Ferns. Her evidence in this respect was as follows:

"A. He said to David, "what had she taken David?" or something like that or, "what had she had?" and David said, "vodka and morphine." Uncle Dan said to David, "where did she get the morphine David?" and David said, “Oh, from her Doctor," and Dan said, "from Doctor Burchett?" who was one of her doctors and David said, "yes," or something like that. And then Dan said, "but Dr Burchett said he hadn't given her any”, because Dan had spoken to Dr Burchett and David just went like this (indicating).

Q. You are moving your hands upwards?
A. Just did this and walked away."

17 Additionally she gave evidence of him saying that he had gone with his mother by taxi to a hotel in Earlwood where they had purchased a bottle of vodka. According to her, his account of the night's events continued as follows:

"They came back and David said that mum had given him a nip of vodka and they were in the lounge room watching telly, or something, and she took the bottle into the bedroom and he said about 4 o'clock in the morning he heard a thump in the hallway where the phone was and she had fallen off the chair and still had the phone in her hand and she couldn't talk but she was making strange noises and he said he couldn't get her into her room so he just covered her and put her arm under her head and went to bed and when he got up at nine she was dead on the floor."

18 Ms Ray described finding on her mother's dressing table a note, dated 30 October 1997, in the handwriting of the deceased and addressed to her brother Daniel Ferns, in which she stated that

"I have had enough -- however I am castigated it is of no consequence to me. I have held on for as long as I can to see my children through to a adulthood and now I’m of no use to them or anyone else for that matter".

19 Ms Ray agreed that the deceased had a long-standing history of multi substance abuse, although she had an aversion to injecting herself. She said that she had injected the deceased twice with pethidine, for headaches, once about a year earlier, and the second time, about two weeks before her death. The deceased, she said, had informed her that she had obtained the pethidine from her Doctor, in case she needed treatment for a migraine attack at night or on a day when she could not get to the surgery.

20 She also agreed that her mother had, on four or five occasions engaged in acts of self harm, involving the overdose of tablets, the most recent of which had occurred in late October/early November 1997. She identified an additional letter, which was undated but which had been written by the deceased and addressed to her, in which she observed that she was "leading a useless life", and that her heart was "broken". The letter went on to refer to money that she was leaving to Ms Ray with the hope that it would make her life "easier." Although not certain about it, she thought that she had found this letter at the house after her mother's death.

21 Mr Harrison gave evidence of going to the house of the deceased on Tuesday 11 November, after receiving a call from Ms Ray. He arrived at about 1 PM. He was informed by the appellant, who appeared to be "possibly mildly drunk", that, when he had gone to bed the preceding night, his mother had been lying on the floor, so he had covered her with a blanket and placed a pillow under her head. He had left his bedroom door ajar to listen for her, but when he had woken in the morning he had found her dead.

22 Mr Harrison described seeing a 750 ml bottle of vodka, a small shot glass, a Rohypnol box and a script on the telephone table. Being concerned that the appellant may take an overdose, he made a search for, and found, several packets of Rohypnol, Valium and other prescription drugs, which were in the name of Mrs Ray. He said that he placed these packages, which appeared to have been unopened, in his own bag.

23 He also said that later he and Julia Ray made a further search of the apartment looking for drugs, in the course of which other packages of prescription pills in the name of the deceased were found. Additionally, he said, Ms Ray made a search of the appellant's bag, in which she found some more packets of pills, which he thought were Valium. He recalled her giving him one box of Valium, and one box of Rohypnol, which he put into his backpack. He did not recall seeing a pink bag, or any syringes, or glass phials, while he was in the room with Julia Ray. The pills taken from the appellant's bag, he said, were returned to it about half an hour later. The remaining tablets that had been found he said he gave to Dr Holliday, who returned one packet for the appellant to use in case he had nausea. He thought that all of the containers of drugs that were taken away were unopened.

24 He said that on the Thursday following his first visit, and after a conversation with Ms Ray, he spoke again to the appellant in the following terms (permission having been given to lead the evidence):

"Q. I will read it as it appeared in your statement. Listen and I will take it bit by bit. I think you said to David, "Julia told me about the morphine. Did you inject her intravenously or intramuscularly"?
A. Yes.

Q. And he said, "intravenously"?
A. Yes.

Q. Then David said, "oh, oh, no, I mean intramuscularly"?
A. Yes.

Q. And you said, "Where is the evidence? The syringes and stuff"?
A. Yes.

Q. And he said, "I put it in the wheelie been"?
A. Yes.

Q. And you said, "David, I think you should leave now and go back to the Blue Mountains. David if this comes out you are going to be in a lot of trouble"?
A. Yes.

Q. And I think he said, amongst other things, "Maybe they won't find it"?
A. Yes."

25 Mr Harrison recalled the occasion described by Julia Ray on Wednesday, when she had been called by the appellant into his bedroom. It was his impression that he seemed, at this time, to be well affected by alcohol and drugs, and to be angry towards his sister and father. He also indicated that the appellant was drinking beer when he had the conversation with him on the Thursday morning, although he did not seem to be affected by alcohol at that stage.

26 On the following day, that is Friday, Mr Harrison said he moved the unemptied Otto bin into the garage, which he then locked.

27 He additionally gave evidence to the effect that the deceased had informed him that she often went to two doctors for pethidine injections for headaches and had been given pethidine to take home. He also confirmed that she had suffered from periods of depression, some of which had been quite debilitating.

28 The uniformed police, Senior Constable Garrihy and Constable Bruce, who had arrived at the scene on the morning of 11 November 1997, received a similar account from the appellant as to the fact that he had been drinking vodka with the deceased on the preceding night, that she had taken a vodka bottle into the study area where she was making telephone calls, that he had fallen asleep watching TV in the lounge, that after waking he had found her asleep on the floor, and that he had placed a pillow under her head and a blanket over here, after unsuccessfully trying to rouse her, even though she had made a response. He added that he had discovered her dead in the morning, after which he had contacted the Ambulance Service at about 9 AM.

29 Senior Constable Garrihy confirmed seeing an empty standard 750 ml vodka bottle on the telephone table. He did not recall seeing any drugs or scripts on the desk but did remember Constable Bruce finding an unused packet of medication during a search of the premises. He could not recall what was on the label.

30 Detective Sergeant May gave evidence of the items which he retrieved form the Otto bin on 17 November 1997 as follows:

“A. I opened the bin, I located a green plastic bag and that bag was physically tied in a knot. Inside was another plastic container, and inside that container I located three hypodermic needles in packets and two unused swabs. One film holder containing one unused swab. One paper Soul and Pattinson chemist bag which was twisted. Inside that bag was a hypodermic needle which appeared to be used. There was also a pink bag labelled “Bras n Things”. On opening that bag I located a broken hypodermic needle, five empty morphine vials, five glass tips for those vials, an empty packet which appeared to have those vials and the packaging.”

31 He also described finding in the bin the letter which had been written by the deceased to Julia Ray previously mentioned, as well as some prescription tablets. In this regard he said:

32 He explained that the items recovered were found at the top of the Otto bin, and that under some of the plastic bags, although towards the top, he found an empty bottle of vodka. Whether it was a 375 ml or 750 ml bottle remained unresolved, although it would appear more likely to have been the latter.

33 There was evidence to the effect that these items were subjected to fingerprint tests, but that no identifiable prints were recovered. By the time of the trial only three of the five phials were still contained with the exhibit, the other two apparently having been lost or mislaid. However it was common ground that they had been originally marked as containing 30 mg of morphine sulphate in one millilitre.

34 Testing was not carried out on the syringes found in the bin, which appear to have included both 1 ml and 3 ml syringes, to determine whether they had ever contained morphine. Detective Sergeant May said that the reason for the absence of such tests was due to the refusal of the government analysts to handle needles for occupational health and safety reasons. Nor was any testing carried out on the vodka bottle or shot glass to determine whether it had contained any traces of that drug.

35 It also appears that no inquiries were made to determine whether any telephone calls were made from the house during the evening of 10/11 November, and if so, as to the time or times that they were made.

36 Detective Sergeant May conducted an electronically recorded interview (ERISP) on 25 November 1997, in which the appellant participated voluntarily.

37 By reason of the manner in which this ERISP was treated by his Honour when summing up to the jury, and the significance that was given to the topic of lies, it is necessary to extract the more relevant passages. For convenience, I have assembled those passages under topic headings, noting however that they did not necessarily occur in the precise sequential manner which my reconstruction might otherwise suggest.

Use by Deceased of Morphine and Pethidine

“Q.74O.K.

ABut she’s, she's often, she suffers migraines, so she's often had doctors come around and, and give her shots for morphine and, and pethidine. That's just, that's been a pretty regular thing for --

Q.75Well, what, what doctors would, would put that into her?

ADr Birchet, Dr Holliday, and night doctors, you know those night doctors that come around?

.....

Q.236Is there anything further you want to tell me about this matter?

A Only that no morphine belonged to me. I know that. I'll state that. No morphine belonged to me. Whatever my mother had there, you know, she had, she had all kinds of medications and stuff there, she had, you know, heaps of stuff, she had needles and --

Q.237Do you wish to make, Sorry? Yeah, go on.

AYou know, and my sister says she, you know, my mother has told..... tell me my sister had injected her before, ‘cause she asked her to inject her for her headaches, with pethidine, and, I remember that when the doctor would come around and he'd give her a shot of, she'd have a packet of morphine or pethidine, she'd keep a couple aside in case the night doctor come around, if he wasn't available, to give her a shot, you know, to give her a shot for her headache.

Q.238Have you ever injected your mum with morphine?

AYeah, I have.

Q.239Morphine or pethidine?

APethidine, Sorry, pethidine. Yeah.

Q.240Have you ever injected your mum with morphine?

A No. Pethidine, yeah.

...

Q.243Is it a pretty rare thing for you to give her pethidine?

AYeah.

Q.244All right. And it is, from my understanding, it's because she has really bad migraines?

A Yeah. That's right.

Q.245All right. So have you ever given her morphine?

ANo.

Q. 246And how do you know the vials that you've seen around the house were actual morphine and not pethidine vials? Or are you only assuming they’re -?

A I'm assuming...

Q.247So you don't know if you've seen morphine around the house or not?

ANo. I don't know.

...

Q. 318 Prior to your mum’s death, do you ever recall seeing morphine, not pethidine but morphine, in that, in that house?

A No. … I remember seeing pethidine, no, I have seen, I have seen morphine in the house.

Q. 319Where?

AOn, on a few occasions. After she's had a Doctor come around and she's had a, in, in her drawer, in the top of her thing, she's opened it up and she's had a, and needle in there with a used, those vials of thingo, of morphine.

Q. 331Yeah. And you said that you’d seen vials of morphine on occasions at your mum’s house?

AMm. Yeah. Lots of --

Q. 332 Have you --

A On lots of occasions.

Q. 333Right. Have you ever seen in your mum inject herself with any kind of drug?

ANo, because, no, ‘cause she's had the bedroom closed when she’s, when she's had some, or like even, even when the doctor’s come around and given it to her, she's had the bedroom door closed.

...

Q. 335Okay. So in the week leading up to your mum’s death --

AYeah.

Q. 335-- do you know of her either being injected by somebody else, being a doctor, or injecting herself with any kind of drug, in the week prior to her death?

AYeah. Yep.

Q. 336Yep? Do you remember --

AYeah.

Q. 336-- who injected her?

ADr Birchet.

Q. 337Dr Birchet. Do you remember when that was?

A No.

Q. 338No?

AI'm not sure, I'm not sure of the, I'm not sure what day it was.

Q. 339Do you remember what kind of drug was?

A No.

Q. 340M’mm.

AJust sometimes she'd say, "oh, he gave me pethidine that time" or "he gave me morphine that time" or--

Q. 341Right.

AYou know. And he left, he used leave vials in the, in the house with her, quite often.

Q. 342 And where were they kept?

A‘Cause she'd say, well, in different places. She used to keep them sometimes next, next to her bed and in that cupboard, in that drawer in the dressing table. She'd keep it in there under her socks and all that stuff. She kept a, a syringe and all sorts of stuff in there.

Events of 10 November

…AYeah, she woke up quite late in the, in the day.

Q 107After lunch or before lunch?

AAfter lunch.

Q108Mid-afternoon, do you remember, or -?

AYeah. Mid-afternoon, yeah.

Q109All right. What happened then?

AShe had a shower, and we went up to Earlwood.

Q110To do, to do what at Earlwood?

ATo buy some groceries. I think, I’m pretty sure we, we bought, we got two videos. We exchanged some videos, and we brought home two videos. And then we came back home and she told me how, how angry she was and that she, that she felt like having a drink.

…

Q120How did she bring that up? What did she say?

AI can’t remember the exact, the exact words she was, but, but I said, I said, “If we have a drink”, I can’t remember which, which one of us said it, but, but one of us suggested if we have a drink, it shouldn’t be too much, it should be, she said she wanted to, she feels like drinking vodka and she doesn’t, and she wants good vodka but she doesn’t want to buy a big bottle, she wants a, a half flask thing.

Q121All right. So what happened after that?

AWell, we sat down, you know, at the table like this, and, and had shot glasses and, and drank the, drank the, drank the vodka. Now, she got another bottle of vodka, a large bottle, and, but I can’t remember, I’m a blank to – -

Q122How you got it?

A- - - where she got, yeah?.

…

Q127So you don’t remember leaving the house and buying it?

ANo. I’ve got no - - -

Q128All right.

A- - - no memory of that.

…

Q149All right. Now, do you remember what happened after someone got the next bottle of vodka? Do you remember drinking that?

ANo, I didn’t, I can’t remember having, I honestly can’t remember having any of that. I must’ve, I would’ve, but I can’t remember doing it. ‘Cause I was in the other end of the house, I was in the other end of the house, watching a video, and she was on the phone, cause that’s what she does when she drinks.

…

Q156O.K. What’s the next thing you remember?

AThe next thing I remember is the, is the, I must’ve fallen asleep on the lounge or somethin’, towards the end of the video or somethin’, because the next thing I remember is getting up and going in to the end of the house where she was, and she was, she’d fallen off the chair and she was lying on the, on the carpet with the, the phone hanging, hanging off the, you know?

Q160And what did you do?

AI, I, I shook her and picked her head up and talked to her. I said, “Mum”, you know, and she went, she went – (DEMONSTRATES AUDIBLY) – like groaned, you know? She was answering in groans. It wasn’t like, and, and I, and I started to ask her to come to bed, like, “Come to bed”, and tryin’ to pick her up. I couldn’t pick her up, I just, you know, didn’t have the strength to pick her up. But she seemed to be O.K. She wasn’t, I mean, she was answering me….

CONSTABLE BECROFT

Q161M’mm.

ABut I couldn’t, yeah, I couldn’t get her into bed, but she, she was definitely alive. Definitely alive and, and responding.

DETECTIVE SENIOR CONSTABLE MAY

Q162Do you know what time that was at all?

AIt was, like, real late…

Q 163Well, why do you think that, or why do you know that?

AWell, well, because I remember being up, you know, ‘cause I, I, I, I put the pillow under her and put a blanket around her and that, and, and all’s I had to do was sort of sit up in bed, like that, and I could see her on the floor, just there. And I remember it wasn’t that long before I, I’d actually got up to go and have a look, and that was 9 o’clock. So it must’ve been like, you know, 5 o’clock in the morning or, you know, it would’ve been, wouldn’t have been far off daylight, you know.

Q167Hang on, I, I’m lost. You said that you checked her and put a pillow under head?

AYeah, I done all that.

Q168Yeah, and then what did you do?

AI, I, but I did all that before I went to bed, ‘cause I couldn’t get her into bed, see?

Q169Yea, and then you went to bed?

AYeah, then, yeah, then I went to bed, but I kept getting up and, and looking. And then, and then she looked all right, and then suddenly I, I like, I’ve got a clock, I had a clock next to me, and it was like, 9 o’clock and she hadn’t moved. …

…

Q171And what did you do then?

ASo I jumped up and ran over to see, you know, to -

Q172Mm.

AI tried to resuscitate her and I couldn’t resuscitate her, and I called the, the 0, the, the -

Q173Triple 0?

AYeah. Triple 0.

Conversation with Julia Ray relied upon as an admission

Q183Do you remember a conversation where you have told her certain things, in the bedroom? Where you worried about what the police might find in the body of your mother?

ANo.

Q 184Well, Julia has told police that you have said to her that you were worried that the police are going to find the morphine that you gave to your mum in her body, when they do the examination.

AWell, I haven’t given her any morphine but I, I remember the, the doctor. She had some pethidine and she, she took the pethidine, she had some pethidine. She had pethidine vials that the doctor had given to her to buy, and she had some pethidine vials, and she took, she used to, you know, have shots of pethidine sometimes, but I don’t remember that conversation, no.

…

Q268O.K. What I'm saying to you now is conversation that she has told me after the death of your mother. Do you understand that?

AYeah.

Q269That doesn’t mean it’s true. What it means is that she is telling me something.

AYeah.

Q 274All right. Now, your sister is saying to me that you
have confessed to her that you gave your mum morphine before she died., Do you want to say anything about that?

AOnly, only that - - -

Q275And if you don’t remember - - -

A - - - no, only that I, I can’t remember.

Q 276That’s all right, that’s what I’m saying. If you don’t, if you don’t understand or you don’t remember, just say those words.

AI do understand, but I don’t remember.

Items which Julie Ray said were found in the appellant’s bag

Q 192Do yo keep morphine in, well, do you have a black carrybag?

AYeah. I’ve got a black carrybag, yeah.

Q 193Is that what you took to your mum’s place when you stayed there - - -

AYeah.

…

Q201Yeah. Now, the day when, when she arrived after speaking to you –-

AYeah.

Q201 - - they searched the house, and in your black bag they found the morphine and the needles.

AIn my black bag?

Q202In your black bag.

AI didn’t have, I, I dunno anything about the morphine. I didn’t have any morphine.

Q203Well - -

AWhere would I get morphine from? Like, it’s, you know?

…

Q 206When you were at your mum’s house, have you seen a little pink bag, a little pink plastic bag, no bigger than that bit of paper - -

CONSTABLE BECROFT

Q207A shopping bag.

DETECTIVE SENIOR CONSTABLE MAY

Q 208A little shopping bag.

AMm.

Q 209With “Bras & Things” written on the front of it?

ALike a plastic, like a record bag or something like that?

Q210Yeah, yeah, like a record - -

AYeah. No. No.

Q211Well, they also located that in your bag as well. And inside that bag, they found the five vials of, empty of morphine, and the used syringe. Do you want to say anything about that?

AShit.

Q 212Do you, do you understand that the police, I mean, I, I am in possession of those items and I’ll just have them fingerprinted, and if you’ve touched them, your fingerprints will be on them. That’s why I’m asking you, did you throw them into the big, green Otto bin?

AMy mother had some morphine there and some pethidine there yeah.

Q 213How did it get into your bag?

AI dunno what it was doing in my bag, but it was in, it was in her spare room because she told me to put it there. She told me to put it in that spare room, I dunno, two months ago, my mum got some pethidine and stuff off the, off the doctor, Dr Birchet, and told me to put it in that room, in the spare room. I dunno what they were doing, or how they, how, like, you know, why I put ‘em why the, you know, if, if I put them in the bag, in the bag, I dunno why they would be in there.

…

Q215 Whereabouts in that room did you put them?

AIn the, in the first shelf, in the first shelf. You open the brown doors, and in the first shelf, in there.

Q 216Can you remember exactly what it was? Like, morphine or what kind of drugs?

AYeah. There was, there was, I do remember a bag with “Bras & Things” and there was, there was all kinds of stuff in there. There was vials of pethidine, vials of all sorts of stuff, vials of morphine and she said she was getting them from a doctor. I, you know, I dunno, I dunno which doctor. I dunno, you know -

…

Q218Can you answer why they were in your black bag?

ANo.

Q219You don’t know?

ANo. I can’t remember putting them there. I can’t remember, I can’t remember putting them there, no.

…

Q299All right. I’d like to go back to the pink plastic bag with “Bras & Things” written on it.

AMm.

Q300Do you know that bag I’m talking about?

AYeah.

Q301 Are you sure?

AI think so.

Q302O.K. Why, why do you think you know it for?

A‘Cause I remember there was a, there was a, in that, in that room, in that part of the cupboard, there was a, there was a, a plastic bag with “Bras & Things” in there.

…

Q306All right. Why do you recall that bag for?

AI recall a lot of things in that cupboard.

Q307All right.

AYou know, I can’t, I don’t recall that bag particularly.

Q 308All right. Do you recall putting that plastic bag into the Otto bin at 17A Macquarie Road?

ANo.

Q 309Do you remember seeing that bag, that pink bag, in your black bag in the spare room?

ANo.

….

Items Found in the Otto Bin

Q186Did you throw anything out of your bag into the garbage bin the day your mum died, or the day after your mum died?

ANo.

Q187Are you sure?

AYeah.

…

Q189The police, which is me - -

AMm.

Q189 - - - and my partner, Detective Becroft, searched the big green Otto bin - - -

AMm.

Q189 - - - from number 17A Macquarie Road, Earlwood, your mum’s house - - -

AM’mm.

Q189 - - - and we located five vials of morphine - - -

AM’mm.

Q189 - - - a used syringe and some unused syringes.

AI remember her saying to me once she tried to kill herself. She told me, when I first came down there, she told me when she tried to kill herself that she’d, that she’d wrapped up a whole lot of, thrown out a whole lot of stuff because she didn’t want anybody to find anything, she didn’t want it to come, anything to come back on anybody, she didn’t want, yeah, she didn’t want, yeah. She didn’t want any, any trouble, she didn’t want any trouble for the doctor or anything like that. She told me that she, that she’d wrapped a whole lot of stuff and thrown it in the bottom of the, the garbage bin. So - - -

Q190Have you had - - -

A - - - maybe it’s related to that.

…

Q 224 Did you throw that pink Bras & Things plastic bag, carrybag, did you throw that in the big, green Otto bin?

A (NO AUDIBLE REPLY)

Q225 Are you sure?

A I don’t, no, I don’t remember. I don’t know, I don’t know if I should answer any more questions, ‘cause I’m not sure, you know?

Q226

A I’d rather, I’d rather talk to a solicitor before I go any further with this.

…

Q 233 And you don’t wish to be interviewed any more?

A Well, ‘cause I, yeah, I don’t want to be interviewed until I talk, talk to someone that, you know, ‘cause I don’t, I can’t remember, I can’t remember what I did because my mother was so concerned about the things she had around the house, pethidine and morphine and all kinds of stuff, she was so concerned about all that stuff, before I rang, I tried to ring my sister and I ran around and grabbed whatever I could find and, and threw it in that green Otto bin out the front, and I can’t, I can’t - -“

38 Constable Bruce, who had spoken to the appellant on 11 November, gave evidence of recording him say that, at about 8 PM on the preceding night, the deceased and he had shared a 375 ml bottle of vodka, consuming equal amounts each; and that, at about 11 PM, they had purchased a 750 ml bottle of vodka and taken it back to the premises. He had consumed only one nip from this bottle, which had been taken by the deceased to the study, where she made telephone calls. Otherwise her account was to similar effect of that given by senior Constable Garrihy.

39 Evidence was called from Dr Burchett and Dr Holliday in the Crown case, and also from Amanda Geraghty of the Health Insurance Commission (HIC) concerning the services which had been provided to the deceased between late December 1994 and 11 November 1997, and paid for by the HIC, and also concerning the prescriptions for which benefits had been paid by the HIC through the Pharmaceutical Benefits Scheme (PBS).

40 Ms Geraghty said that these records did not contain any entry indicating that morphine had been prescribed to the deceased, although they did show that on 2 October 1997 pethidine had been prescribed for her by Dr Burchett. However she explained that private prescriptions for morphine and other drugs, including those which exceeded the permitted quantity for which payment would be made under the Scheme, would not show up in the records. She also said that pharmacists filling a prescription for pethidine or morphine for a general patient, in 1997, would not claim a PBS benefit unless that patient was a pension or concession card holder.

41 She added that a treating doctor is able to receive samples of medication, including morphine, using an "emergency drug doctors bag order form", from a pharmacy, usually in a quantity of five phials. They can then be used in an emergency without any prescription being issued in the patient's name, and without any record being made in the Health Insurance Commission system.

42 She also acknowledged that services provided in a public hospital to a public patient, would not appear in the records; neither would services provided without charge, or services for which a Medicare claim was not made.

43 She said that it was up to a treating doctor to decide whether to leave medication with the patient; although she would not expect this to occur with pethidine or morphine, due to the fact that doctors have to keep a record of the drugs which they receive from pharmacies.

44 Dr Burchett, who had been the deceased's treating doctor on and off for about 10 years, said that she had been dependent on alcohol and benzodiazepines. She had been trying to control her alcohol problem from about 1995, and during 1997 she seemed to be having some success with it. He noted that she had been hospitalised in March 1997 because of her struggle with benzodiazepines, and that leading up to this admission, she had been visiting a number of doctors to obtain prescriptions.

45 He indicated that she had also suffered from severe migraine headaches, for which he had prescribed various medications, and for which he had injected her with pethidine, on a number of occasions, including 2 October 1997 and 16 October 1997.

46 He said that he had, on occasions, written prescriptions for pethidine for her, and had kept the spare ampoules (the package normally contains five phials), after having left her with 1 ampoule (100 mg in 2 ml) when he thought that there was a strong likelihood of her having a recurrence while he was not available to see her. This ampoule he had left for an on call doctor to use, since she would not inject herself. These phials, he agreed, would have come from the doctors bag scheme, and would not have appeared as a prescription in the Health Insurance Commission records.

47 If he had left a syringe, he said, it would have been a 2 - 2.5 ml syringe, and not a 1 ml insulin syringe, of the kind which was found in a package in the Otto bin.

48 He denied having ever prescribed morphine for the deceased, indicating that he did not consider it a good drug for a migraine attack. Its use for such a condition, he said, would be contrary to his normal practice, while acknowledging that in an emergency, if there was no pethidine available, then 10 milligrams of morphine could be used. That however was not a drug he said which he normally carried in his bag.

49 He also said that, on 10 November 1997, there had been a weather disturbance of the kind that can trigger a migraine attack, and that the deceased had in fact phoned his surgery, after which he had made a home visit to her at about 7 PM. By then the storm had passed, and the deceased had said that she did not need anything, and would "just take another Codral tablet". He left her a prescription for Codral Forte and Rohypnol, adding that, as events turned out, they were never made up. She did not appear to have been suffering at the time of this visit from depression, or to be in a manic phase.

50 He acknowledged that the Health Insurance Commission records showed that a number of doctors had treated the deceased over the years leading up to her death. However he suggested that other doctors would not be inclined to administer an opiate such as pethidine or morphine without a letter from the treating general practitioner.

51 He identified the phials which had been recovered from the Otto bin as having been intended for 30 mg of morphine sulphate in one ml. A 30 mg dose, he said would be excessive, and would only be used for patients with a high tolerance to opiates such as occurred with cancer patients, or for a patient with very severe pain, such as that associated with a kidney stone.

52 He agreed that a patient who was tolerant to pethidine would show some cross-tolerance to morphine, since they were both active opiates.

53 Dr Colin Holliday, a general practitioner who had also treated the deceased since 1982, and who had admitted her to hospital in March 1997, when she was exhibiting signs of paranoia, agreed that she had been “doctor shopping” and obtaining codeine-based prescriptions in the weeks before the admission.

54 He said that she had attempted suicide in 1985 by drinking half a bottle of whisky along with sedatives, and again in 1986 by cutting her wrists. She had resisted his attempts to transfer her to a detoxification unit at Wandene Hospital on the occasion of the 1997 hospital admission.

55 He said that he had never prescribed morphine for the deceased, or for the appellant, although he had prescribed pethidine and promethazine for the deceased’s migraine attacks. The pethidine with which she had been injected by him, he said, had come from the doctor’s bag scheme.

56 He had given instructions to the after-hours service not to give narcotics to the deceased, but had been informed by some of those doctors that they had injected her with pethidine.

57 He had, on three occasions, left her with pethidine, but in order to restrict her use of the drug, he had confined it to one ampoule for a month. He had entertained concerns as to her drug abuse, and had referred her to various psychiatrists over the years for anxiety depression and substance abuse.

58 He remembered attending at the home of the deceased after her death, although he had no record of it in his cards. He did not recall any person there giving him a quantity of drugs and asking that they be removed from the premises. Had he received morphine or pethidine, he said, he would have broken the phials and emptied their contents in the presence of a witness, and documented that fact. Other drugs he would have returned to a pharmacy, pursuant to the system for getting rid of unwanted tablets.

59 The Health Insurance Commission records reveal that, apart from Drs Burchett and Holliday, medical services for which benefits had been claimed had been provided by 60 or so doctors over the period to which the records applied. Although the major source for prescriptions had been Drs Burchett and Holliday, the records showed that many prescriptions had been written by Drs Rajendram and Khatri. Other prescribing doctors included Drs Scruby, Girgis, Nour, Hegoe, Kosten, Lance, Spicer, Tsung, Allen, Chakty, Campbell, Lee, Smyth and Walker. The only doctors recorded as having prescribed pethidine were Drs Khatri, Burchett, Scruby, Ma and Holliday.

60 A critical issue in the case was whether or not the appellant’s conduct had been a significant contributing factor in his mother’s death.

61 Dr Allan Cala, who conducted the post mortem examination, attributed the death to multiple drug toxicity.

62 He gave evidence to the following effect:

(a) The blood alcohol level in the deceased was in the “theoretically fatal range”, and could have led to her death.

(b) The blood level of morphine was in the “toxic and fatal range” which “theoretically [is] anything over 0.08 mgs per litre”. The level found, he said, was about twice the level of morphine which he had seen in fatal overdoses by long term drug users.

(c) Pethidine does not metabolise within the body to morphine; but codeine based drugs such as Codral Forte can do so.

(d) The effects of a large dose of morphine are that a person will become more and more unconscious, with their volume and rate of respiration reducing.

(e) While pethidine is an appropriate treatment for a migraine attack, morphine can also be used for that purpose.

(f) Morphine sulphate of the kind that one would expect to find in the exhibited phials was not meant for oral ingestion; it could be taken that way, although its bio-availability would be reduced to about one-third, because substances consumed orally are rapidly degraded by the liver.

(g) If morphine had been orally ingested, it would be expected that some would be found in the stomach on post mortem examination; however on this occasion, testing of the deceased’s stomach contents had not been conducted.

(h) While the codeine found in her blood was not at a fatal or toxic level, some of that codeine, approximately 10%, would have metabolised into morphine – in that regard, if its source was Codral Forte, which contains 30 mgs of codeine that would have been equivalent to 3 mgs of morphine theoretically, although it would have had a lesser toxicity if taken in the usual way by oral ingestion than if injected.

(i) One intravenous injection of a 30 mg ampoule of morphine in 1 ml of fluid, of the kind recovered as an exhibit in this case, would be about three times the recommended dose to give an adult for the treatment of pain, and would be sufficient to produce a blood morphine level of 0.6 mg per litre, which in turn would lead to breathing stopping within about 20 seconds.

(j) An intramuscular injection of a 30 mg ampoule would result in a lower rate of absorption, and hence in a morphine level much lower than that found in this case; as would its oral ingestion, although in that case, to an even lesser extent.

(k) Combining one 30 mg intramuscular injection, with the oral ingestion of four 30 mg phials, some three to five hours later, would “probably not” result in the blood morphine level found in deceased; although he said that “it remains nevertheless…a possibility”.

(l) A blood alcohol level between 0.3 and 0.404 gms per 100 ml would have a considerable effect on the manual dexterity of a person attempting to open morphine phials, since in his experience they were quite difficult to open, and sometimes shattered in one’s fingers.

(m) He did not find any convincing injection puncture mark or marks on the deceased during his post mortem examination of her body, although that he did find some bruises on her arms.

(n) The failure to find any puncture marks, he said, did not surprise him since injection marks can be extremely difficult to detect, and often are not found, whether they were given intravenously or intramuscularly; although, he added that, had the exhibit ampoules of morphine been injected with a 3 ml syringe, requiring at least two shots, then he would have expected to see evidence of some puncture marks, as he would also have expected if there had been four to five shots using 1 ml syringes, because the chances of seeing injection marks are increased when they are repeated and occur over a short period of time.

(o) The longer that morphine is in the body, the lower are the levels of morphine, and the higher are the 2 chemicals, morphine 6 glucuronide, and morphine 3 glucuronide, into which it metabolises – test results were not however available to show the level of these metabolites, or to provide an indication of the time that morphine had been present in the deceased before her death.

(p) The bile morphine level of the deceased was 40 mg per litre (which showed that the morphine had been moving around) although that did not come as a surprise to him, and did not necessarily provide any guide as to the time between the morphine entering the deceased’s body and her death, although it could mean that the blood had been, at some time, higher than 0.6 mgs per litre.

(q) He was unable to say how much time would have elapsed between the administration or ingestion of morphine and death; nor was he able to say how much morphine would need to have been injected intramuscularly to reach a 0.6 mg per litre level, although he did say that it would be greater than 30 mgs.

(r) The regular use of codeine and pethidine, particularly the daily use of codeine, would produce some cross tolerance to morphine, in which event the time until death, if given an excessive dose of morphine, would be lengthened.

(s) To achieve a blood alcohol level of 0.4 mgs per 100 ml, would require the ingestion of 14 to 15 or more standard drinks of spirits, depending on the rate of consumption and metabolism.

(t) Had the deceased consumed half a 375 ml bottle of spirits, starting at about 7.30 PM, then her blood alcohol level would have been about 0.1 gms per 100 ml of blood by 10.30 pm, a level which would not have affected her motor skills to the point where she would have been unable to knock the tops off the phials and to empty them.

(u) Had the deceased been alive at 10.30 PM, and still talking at about midnight, then he would exclude the reasonable possibility of her having been injected intravenously with a fatal dose of morphine between those hours.

63 An application for a Prasad direction at the close of the Crown case was declined. The appellant did not give evidence, although he called one witness, Kenneth Suydan, who lived in an apartment immediately below that of the deceased. It was his evidence that at about 10.30 PM on 10 November 1997, the deceased had phoned him and asked him to go to the bottle shop to buy a bottle of vodka. Her speech, he said, was slurred, although she did not sound depressed. He replied that the shop would probably not be open, after which she thanked him and ended the call.

64 His bedroom, he said, was directly under the hallway/study area where her telephone was located. At about 11 to 11.30 PM he heard her talking apparently on the phone for 5 to 10 minutes. He went to sleep but was awoken at 2:30 AM by quite a loud thud directly above his bedroom. The time of this thud he had fixed by referring to an illuminated digital clock beside his bed.

65 He did not hear any other noises after that thud. During his cross- examination, he indicated that from his flat, he was able to hear footsteps of anyone walking around in the area above his bed. He was unaware whether this area was carpeted, although he knew that there were timber floors in the lounge and dining room, by which answer it would seem that he meant that they were uncarpeted.

The Appeal

66 It was the appellant’s case at trial that the deceased most probably killed herself, either deliberately or accidentally, by the self administration of either some or all of the morphine found in her body, at a time when she was depressed.

67 In this regard he relied upon the following matters:

68 As to the cause of death it was contended by the appellant at trial that there was no conclusive evidence as to where the morphine in her body had come from, or how or when it was given or taken, or in what quantities.

69 Further, it was submitted, even assuming that some morphine had been injected by the appellant, that the Crown could not prove that such injection had been a significant contributing cause of her death, in that it could not exclude, as a reasonable possibility, that the deceased had subsequently injected herself, or had orally ingested, some of the morphine from the exhibit phials.

70 In relation to whether or not any act by the appellant in injecting his mother with morphine (if he had done so) constituted an unlawful act, it was submitted:

Drug Misuse and Trafficking Act,

Drug Misuse and Trafficking Act

71 Two grounds of appeal were argued: first, an acquittal ground, that the verdict was unreasonable and/or could not be supported on the evidence; and secondly, a new trial ground, to the effect that the trial judge’s directions on lies had been erroneous in law. It is convenient to deal with that latter ground first.

Lies

72 The case was not one where, either at trial or on appeal, the Crown sought to rely upon the answers in the appellant’s record of interview as constituting lies of the kind that would evidence a consciousness of guilt. At the highest, its case was that the jury would regard his account in the ERISP as unreliable, that is, as a matter going to the credibility of the version which he had given to police.

73 Notwithstanding that circumstance, and without inviting counsel to address him on the question of whether an Edwards v The Queen (1993) 178 CLR 193 direction should be given or not, his Honour elected to give such a direction. The direction, which was thereafter given, made appropriate reference to the elements of which the jury needed to be satisfied, in order to treat the appellant’s answers in the ERISP as revealing a consciousness of guilt. As initially framed they did not include any reference to the additional explanation which Gleeson CJ, Gaudron, Gummow and Callinan JJ had suggested in Zoneff v The Queen (2000) 200 CLR 234, might properly be given in a case such as the present:

74 A direction was later given by his Honour at the request of counsel, in accordance with the final sentence of the suggested direction, although with the addition of the word “material” after the words “lie about something”.

75 It was also the case that his Honour left to the jury what he referred as “areas of [the appellant’s] conduct” which amounted to admissions. In this regard his Honour said:

“Now, you may also use conduct of an accused in the same way as you may use admissions. Again, subject to the same three conditions, which I will not repeat. But the crown points to areas of conduct which fall within that category. First, there is the concealing of drugs and drug administration material in the wheelie bin. The crown submits that this was to avoid being detected. That is based on finding evidence by the police, and partly on Julia Ray’s evidence.

Putting the materials in the bin certainly helped to ensure that the accused had a period of some days in which to think about what he would say if questioned about the events of 11 November.” (Summing Up p 54).

76 He went on to say:

“These factors, the Crown says, point to a consciousness of guilt of a similar kind to that which arises in relation to the lies about which I have given you some directions, or assistance. Again, I say to you, before you take into account such matters as showing consciousness of guilt, you have to be satisfied beyond reasonable doubt that the particular conduct of the accused did in fact occur as the Crown alleges.

That was, at first, disputed by the accused in his record of interview. I gave you the example of that earlier. Later, it was admitted, when he was, as Mr Boulten said, pressed. What really happened there was that they came back to it at another time in the questioning and in a slightly different context, and then the concession was made.” (Summing Up p 55).

77 Although his Honour had broached this topic by reference to “areas of conduct”, it was ultimately confined to the one aspect of the placement of the drugs and the Bras ‘n Things bag in the Otto bin. That was then taken up in the context of the manner in which the appellant’s answers in the ERISP developed.

78 In the initial stages of the summing up, the direction in relation to lies had focused upon the appellant's answers concerning the alleged admissions to his sister. The matter was however eventually not so confined.

79 It was largely the responses of the appellant that “he did not remember” certain matters when they had been put to him by police that became the crux of the directions. However a response of that kind was different in degree from a denial of having had the conversation in question, or of having carried out the other acts that were put to him, although it was also the case that the appellant did deny giving morphine to the deceased or taking such substance to the house.

80 Otherwise, the focus was upon whether any changes in responses, as the questions continued, were such as to demonstrate a consciousness of guilt.

81 At the close of the day on which the directions concerning lies had first been given, Mr Boulten of counsel asked that they be withdrawn, upon the basis that the Crown had not relied upon lies in the ERISP, or the conduct of the appellant in relation to the Otto bin, as admissions of guilt.

82 His Honour declined to withdraw either direction, although he indicated that Mr Boulten could renew his application at the end of the summing up.

83 Without departing from his objection, Mr Boulten then requested his Honour to inform the jury of the possible reasons why the appellant may have given the answers in question, or placed items in the bin.

84 On the following morning his Honour repeated the Edwards direction, and then indicated that, at the request of counsel for the appellant, he would add two matters for consideration, which were not directions of law, but “comments on the evidence”. They were to the effect that, when considering whether the appellant had told a lie solely because he believed that the truth would implicate him in the offences charged, they should also consider, as a possible reason for him having done so, that he was conscious of some other offence, such as assisting his mother to commit suicide; or that he wished to cover up the fact that his mother had committed suicide; or that he was trying to avoid revealing a failure to take steps to avoid his mother acting in a self-destructive way; or that he was trying to avoid telling police the true source of the morphine.

85 When his Honour returned to deal with the ERISP in the course of his summary of the evidence, having declined to withdraw the directions on lies, he began by encouraging the jury to group together the questions that dealt with the same or related subject matters, observing:

“That way you can test a number of things. One is internal consistencies. Another thing that you can test is whether or not you have a sliding story that gets a bit better as it goes on. Sometimes that is because people remember things; other times it is for different reasons; whether what is said in the record of interview can really stand with what has been said at other times by the same person, and, finally, how what is said in the record of interview compares with other evidence. Is it inconsistent with other evidence and how do you work out that inconsistency?”

86 That was an appropriate and helpful way to consider the answers, particularly so far as they went to an assessment of the credibility of the account which had been given to the police.

87 What followed however was a recitation of the answers which had been given by the appellant to questions concerning, for example, the circumstances in which the second bottle of vodka was acquired, as to whether he heard a “thump”, as to the time that he woke and covered his mother with a blanket, as to the throwing of items in the Otto bin, as to whether he had seen the Bras ‘n Things bag, as to whether he had seen morphine in the house, as to whether his mother had told him that Dr Burchett had injected her with morphine, as to whether he had informed his sister that he had injected his mother with morphine, or that doctors had left morphine with her, and so on. They were accompanied by his Honour’s comments in relation to the truthfulness of those responses, and as to any apparent contradictions between them, which were largely unfavourable to the defence case, and which invited their possible consideration as indications of hedging, or as lies on the part of the appellant.

88 At the end of this exercise his Honour said:

“Now, the record of interview is the last occasion that the accused had of putting before you – putting before the police rather, the investigation people – his version of what occurred. You have read it. You have seen it. You will analyse it because it is part of your function and, in doing so, you may feel that it will assist you in coming (a) to a view as to what did occur, (b) as to the truthfulness of the accused, and (c) subject to the conditions that I have indicated to you, if you find it has been proved by the crown beyond reasonable doubt in the second way I put to you that you may use lies, if you find them to have been told by the accused.

The record of interview is a very important piece of evidence in this case, both for and against the accused.”

89 What his Honour did not do, when dealing with the ERISP was to identify, with any precision those matters that the jury were free to consider as lies evidencing a consciousness of guilt, as distinct from those matters going only to his credibility.

90 At the conclusion of the summing up, Mr Boulten asked his Honour not just to withdraw the directions about lies but also the way in which the jury had been taken through the ERISP, upon the basis that the summing up had caused the trial to miscarry. In particular, his Honour’s attention was drawn to the decision in Zoneff v The Queen and to the absence of the precision that was needed in identifying the matters relevantly relied upon as admissions of guilt.

91 In the event of his Honour declining to withdraw those parts of the summing up, or alternatively declining to discharge the jury, counsel asked for specific directions to the effect that, before the ERISP answers were to be treated as admissions or as evidence of consciousness of guilt, the jury would need to be satisfied that the accused really did have a memory of the events of 10/11 November when he was interviewed by police; and additionally that his memory had not been impaired by the consumption of alcohol and/or drugs on the night of 10/11 November, or over the intervening period. A direction was also sought in terms of the directions which had been suggested by Zoneff v The Queen, previously noted.

92 On the following morning his Honour delivered judgment in which he declined to withdraw the directions previously given, and held Zoneff to be distinguishable, on three bases; first, that the lies said to have been told were not themselves the subject of the charge; second, the appellant had not given evidence, with the consequence that the Crown had not been afforded the opportunity of putting to him that his "lies" were told because the truth would have implicated him in the death of the deceased; and third, because the interviewing detectives had suggested, at least inferentially, that the appellant’s asserted absence of recollection was not genuine.

93 It is true that, in certain cases, an Edwards direction should be given for the protection of an accused, that is, where there is a danger of the jury using the evidence inappropriately as admissions of guilt. In the present case, suggestion by inference in the ERISP, or in the Crown Prosecutor's address, may well have led to that danger, and justified an Edwards direction which made it clear that the ERISP was not relied upon for that purpose, and that the answers and any hedging revealed by them were matters relied upon by the Crown as going to credibility alone.

94 Had his Honour framed the directions in this fashion, there could have been no objection to the explanation which was given, which did comply with the elements of the approved direction. However, in the way the summing up developed, the directions were given in a way which could only have significantly bolstered the prosecution case, even though the Crown had not sought to use the evidence in that way.

95 After this judgment was delivered, Mr Boulten sought to present an additional submission, but his Honour refused to hear him. The jury was then brought back after which his Honour gave the additional specific directions which Mr Boulten had sought, as a backup to his primary submission, in support of the application that the summing up be substantially withdrawn or the jury discharged.

96 In an affidavit provided to the court by Mr Boulten, he stated that, at the first adjournment after the jury retired at the conclusion of the summing up, he had dictated a file note recording the additional submissions which he had been prevented from making. The note was to the following effect:

"I intend to put on record the following:
1. That His Honour’s directions given yesterday morning in response to my fax were couched in terms that denied them any judicial impramata and which thereby diminished them in the eyes of the jury. (Domican).

2. That I made my reference yesterday to the trial miscarrying because of a combination of His Honour's directions about consciousness of guilt and His honours analysis of the ERISP. I intended to expand in this way. His Honours analysis of the ERISP led to the summing up lacking balance thereby causing unfairness to the accused. Not only was the disproportionate amount of time in the summing up spent on the question of the veracity of the accused answers in the ERISP but there was no real attempt at balancing His Honour's arguments that suggested to the jury that the accused had lied in his ERISP with any of the reasons advanced by the accused (in argument to the jury and in the redirections sought) that suggested that the answers in the ERISP were not deliberate untruths/or were not evidence of a "consciousness of guilt".

3. His Honour's directions failed to identify particular lies the jury were to consider as evidence of consciousness of guilt, rather it was an invitation for the jury to identify for themselves which lies might constitute consciousness of guilt contrary to Edwards and Zonnef (sic).”

97 In my view the submissions which Mr Boulten wished to make were properly based and, in the way that the matter was left, there was a risk of a miscarriage of justice. The decision of Gleeson CJ, Gaudron, and Callinan JJ, in Zoneff, provides helpful guidance in relation to the circumstances in which lies should be dealt with, particularly in the following passages:

“16. There may be cases in which the risk of misunderstanding on the part of a jury as to the use to which they may put lies might be such that a judge should give an Edwards -type direction notwithstanding that the prosecutor has not put that a lie has been told out of consciousness of guilt. As a general rule, however, an Edwards -type direction should only be given if the prosecution contends that a lie is evidence of guilt, in the sense that it was told because, in the language of Deane, Dawson and Gaudron JJ in Edwards , "the accused knew that the truth ... would implicate him in [ the commission of ] the offence" and if, in fact, the lie in question is capable of bearing that character. (The words in italics are ours and, for the sake of clarity, should be included in the statement of principle.)

17. Moreover, if there is a risk of confusion or doubt as to the way in which the prosecution puts its case, the trial judge should inquire of the prosecution whether it contends that lies may constitute evidence of consciousness of guilt and, if so, he or she should require identification of the lie or lies in issue and the basis on which they are said to be capable of implicating the accused in the commission of the offence charged.
18. This was an unusual case. The prosecutor did not, during cross-examination, in terms, or in our view, by implication, suggest that any answer given was a lie, told out of consciousness of guilt (a phrase we use for convenience). Moreover, as the prosecutor did not address the jury, no such suggestion was made at any later stage of the trial.

19. In this Court the respondent prosecutor reiterates that no reliance was, in the courts below, or is here, placed upon the answers given to found a submission that the appellant lied, out of a consciousness of guilt.
20. It follows in our opinion that 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 appellant'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 appellant.

21. Because the Crown did not put, either in cross-examination or in any submission at the trial that there was any material capable of being regarded as a lie stemming from a consciousness of guilt, the direction that the majority in the Court of Criminal Appeal quoted and which is set out above, should not have been given.
…

25. For the trial judge here to refer to, indeed raise, on his own initiative in the way in which his Honour did, the possibility of a consciousness of guilt without any identification of relevant answers, and without any further explanation, was to invite the jury to infer that the alleged lies might be indicative of a consciousness of guilt, a proposition for which the prosecution has not contended, and does not now contend.” (References Omitted).

98 It is clear from a long line of authority, for example R v Sutton (1986) 5 NSWLR 697, R v Heyde (1990) 20 NSWLR 234, Edwards v The Queen (1993) 178 CLR 193, and Zoneff v The Queen that the topic of lies is one that must be approached with considerable care. As Zoneff and Osland v The Queen (1998) 197 CLR 316 have shown, before lies are left as evidence of consciousness of guilt, it is preferable for the trial judge to ascertain precisely what use the prosecution contends should be made of the evidence. Additionally, having regard to the potential prejudice which can attach to lies, it is always desirable that those which are to be relied upon as evidencing a consciousness of guilt be identified with precision, and not left at large for the jury to select.

99 Moreover as Gleeson CJ and Hayne J said in Dhanhoa v The Queen [2003] HCA 40 at para 34:

Edwards

100 I would add that where such a direction is given to protect an accused, then it should be done in terms that make it clear that it is given for such reason, and that ensures that the evidence is not used in a way which risks bolstering the prosecution case, by being elevated to an admission of guilt.

101 Having regard to the course which this trial took, I am persuaded that error has been shown. The Crown conceded that to be so, when the matter came to be argued before us. This ground has accordingly been made good.

102 The case is not, however, one suitable for an application of the proviso since the question of the appellant’s truthfulness and/or hedging in the ERISP were very much to the forefront of the summing up, and the terms thereof were well capable of influencing the jury verdict in a way that risked a miscarriage of justice.

103 I am fortified in my conclusion that a miscarriage of justice occurred, by reference to some other aspects of the summing up which, although they may not of themselves have required a new trial, tended to compound the problems caused by those directions.

104 They included, for example, the following passage which, contrary to the decision in Robinson v The Queen (1991) 180 CLR 531 was capable of inviting the jury to consider whether the appellant's account to police had been affected by the circumstance that he had "an axe to grind", that is, an interest to serve in lying to them:

case of an accused

there is always the factor that he is anxious to ensure that what the police hear is as good as he can give them

105 Next, in the context of the admissions, which were said to have been made by the appellant to his sister, his Honour made an observation to the jury which, in my respectful opinion, was inappropriate insofar as he said:

is it likely that somebody would say that unless it were true?

one is this is an old Latin maxim, in veno (sic) veritas; in wine truth. It means that when you are in your cups you often say things that are true

often remorse or desire to share a burden may be, or may come to the fore more when somebody has had a few drinks.

106 The adage “in vino veritas” is of dubious validity, particularly as a general proposition, a matter reflected by the circumstance that intoxication commonly needs to be taken into account, pursuant to section 85 of the Evidence Act, when considering whether evidence of an admission, which had been made in the course of official questioning, in circumstances affecting its reliability, should be excluded. Moreover, in this instance, Ms Ray had given evidence to the effect that at the time of this conversation the appellant had seemed "a bit more coherent" and not "like he had been drinking alcohol at the time". It is true that Mr Harrison had a contrary impression, but to the extent that there was a conflict in the evidence, the comment was unfortunate, given the critical nature of the alleged admission.

107 Additionally, when dealing with Ms Ray's evidence, his Honour, at one point, said to the jury:

, you may want to ask yourself: was any reason suggested to Julia Ray why she may be untruthful in relation to what she says was said?

108 This direction came close to, if not directly falling within, the offending line of reasoning which has attracted the attention of the courts, in relation to similar questions asked of complainants in sexual assault cases: see Palmer v The Queen (1998) 193 CLR 1.

109 Next, when dealing with the truthfulness and reliability of the ERISP, his Honour drew attention to the appellant’s observation that he "wanted a solicitor" as a matter which possibly reflected adversely upon him. For the jury to have regarded such a request, which merely reflected his entitlement to seek legal assistance, as a matter adverse to his case would have clearly been inappropriate.

110 Finally, when prefacing his original remarks on lies his Honour had made what can only be regarded as an unfortunate observation, to the effect that he had not, in his time on the bench, experienced “white lies” but "only lies told for a serious criminal purpose". Such a comment may well not have gone unnoticed by the jury when they were invited to consider whether lies in this case evidenced an appreciation by the appellant of his guilt and attempts by him when interviewed by police to deflect suspicion.

111 For these reasons, this ground has been made good, and subject to the next ground, the appellant is entitled to a new trial.

2. VERDICT UNREASONABLE OR NOT SUPPORTED ON THE EVIDENCE

112 The test for this ground is that stated in M v The Queen (1994) 181 CLR 487 and in Jones v The Queen (1997) 191 CLR 439, namely whether the jury, acting reasonably, must have entertained a reasonable doubt as to the guilt of the appellant. That question is one for the Court to decide after making its own independent assessment of the nature and quality of the evidence, including its reliability and credibility: Morris v The Queen (1987) 163 CLR 454. It is also appropriate to give proper regard to the greater opportunity that the jury had in seeing the witnesses give their evidence.

113 The prosecution case, although by no means compelling, was one which was, in my view, capable of satisfying a jury beyond reasonable doubt as to the guilt of the accused. That is not of itself enough to save a verdict, since the Court may still, after its own review, reach the conclusion that the jury should have entertained a reasonable doubt.

114 The Crown case, in summary, encompassed the following strands of evidence:

(a) The presence in the deceased of a toxic level of morphine;

(b) The appellant’s unchallenged admissions, first to his sister, that he had injected the deceased with morphine at about 11.00 PM, and later to Mr Harrison, that the injection had been intramuscular;

(c) The observation of Ms Ray concerning the contents of the appellant’s sports bag, including most particularly the photos and syringes in the Bras ‘n Things bag;

(d) The appellant’s reaction when, following his observation that the deceased had obtained morphine from Dr Burchett, he was informed that Dr Burchett claimed not to have done so.

(e) The fact that broken morphine phials were found at the top of the Otto bin, into which the appellant had admittedly deposited drugs and drug injection paraphernalia.

(f) The absence of any labelling on the packet which was found in the Otto bin (which had been consistent with a morphine packet), of the kind that might be expected had it come from a pharmacist.

(g) The absence of any morphine phials among the drugs which were prescribed in her name found in the bedroom of the deceased, or other places where drugs were found after her death.

(h) The improbability that any medical practitioner would have prescribed or injected morphine for her migraine headaches, which had been consistently treated with pethidine or Codral Forte, each of which were preferred medications.

(i) The evidence of Drs Burchett and Holliday, who, apart from Dr Rayendran, were the most common treating doctors, to the effect that they had never injected the deceased with morphine, or left it with her or prescribed it for her.

(j) The absence of any mention in the Health Insurance Medical Service, and Pharmaceutical Benefits Scheme, records of morphine having been injected or prescribed for the appellant.

(k) The absence of any used or broken phials of pethidine or morphine, or needles, in the area of the telephone desk, being also the area where the 750 ml vodka bottle and body of the deceased had been found.

(l) The difficulty which the deceased might be expected to have had in opening the morphine phials in view of the exceedingly high blood alcohol level that was found post mortem.

(m) The blood alcohol level of the deceased which was such that it was unlikely that she would have been able to inject herself, or to give consent, at least an informed consent, to being injected with morphine.

(n) The fact that the deceased was averse to injecting herself.

(o) The improbability that the deceased’s blood morphine level could have achieved the level found other than by intravenous or intramuscular injection, even allowing for the possibility that some of the Codeine present had metabolised into morphine.

(p) The absence of any prior request by the deceased to Ms Ray that she give her an injection of morphine, as distinct from pethidine.

(q) The fact that instructions had been left with the after hours service not to give narcotics to the deceased.

(r) The improbability of other doctors having left with the deceased either an entire unlabelled packet of 5 phials of morphine, or five individual phials on five separate occasions.

(s) The fact that the deceased’s history of substance abuse had not been known to have extended to morphine.

(t) The fact that the appellant had a history of heroin addiction and as a consequence might have been expected to have had a knowledge of the way in which an injection of an opiate might be performed.

(u) The fact that the 30 mg phials which were found were of a strength that would only be used in acute cases of kidney stone or terminal cancer pain, and were not of the strength that would be likely to have been left with a patient whose problem was one of migraine pain, being in fact three times the normal dose of such drug.

115 On the other hand there areas where the police and forensic examinations had been incomplete in so far as:

(a) There had been no test of the deceased’s stomach contents,

(b) No test had been conducted to determine whether any of the syringes found in the appellant's bag had contained morphine;

(c) No tests had been made of the vodka bottle and shot glass to see whether they contained traces of morphine;

(d) The remaining doctors who had treated the deceased had not been interviewed as to whether they had ever given morphine to her or prescribed it for her.

116 Additionally there were the circumstances that:

117 In these circumstances it was suggested that reasonable possibilities consistent with the appellant's innocence were available insofar as the Crown had been unable to remove the following possibilities:

118 Clearly these were arguments that were properly to be placed before the jury although none of them had been ventilated by the appellant in his ERISP, it having been his case from beginning to end that he had not injected his mother with morphine. When the factors identified in support of the prosecution case are considered in combination I am not persuaded that any of the possibilities identified by the defence had the strength or cogency of the kind that would require the conclusion that the jury should have entertained a reasonable doubt as to the appellant's guilt.

119 In particular, the admissions have very great probative value, particularly when viewed in conjunction with the items found in the appellant’s bag. Furthermore, it appears unlikely in the extreme that the deceased could have, or would have, injected herself with morphine, or ingested sufficient orally to reach the toxic level found.

120 In those circumstances I do not consider that this ground has been made out. The proper order, accordingly is as follows:

121 It remains properly a matter for the Director of Public Prosecutions to determine whether, in the light of the deficiencies in the investigation, the analysis of the evidence contained in these reasons and the time served, whether the appellant should be placed on trial again.

122 SIMPSON J: I agree with Wood CJ at CL.

123 ADAMS J: I also agree with Wood CJ at CL.

124 WOOD CJ at CL: The orders of the Court are:

**********

Last Modified: 09/02/2003

CITATION:	R v Ray [2003] NSWCCA 227 revised - 29/08/2003
HEARING DATE(S):	6/8/03
JUDGMENT DATE:	20 August 2003
JUDGMENT OF:	Wood CJ at CL at 1, 124; Simpson J at 122; Adams J at 123
DECISION:	1. Appeal allowed; 2. Conviction quashed; 3. New trial ordered.
CATCHWORDS:	CRIMINAL LAW - murder - directions to jury - directions about lies - consciousness of guilt - application to discharge jury - whether refusal to hear counsel prior to jury deliberations an error - whether verdict unreasonable and/or could not be supported on the evidence - whether miscarriage of justice.
LEGISLATION CITED:	Drug Misuse and Trafficking Act 1985 Evidence Act 1995
CASES CITED:	Dhanhoa v The Queen [2003] HCA 40 Edwards v The Queen (1993) 178 CLR 193 Jones v The Queen (1997) 191 CLR 439 Morris v The Queen (1987) 163 CLR 454 M v The Queen (1994) 181 CLR 487 Osland v The Queen (1998) 197 CLR 316 Palmer v The Queen (1998) 193 CLR 1 Robinson v The Queen (1991) 180 CLR 531 R v Heyde (1990) 20 NSWLR 234 R v Sutton (1986) 5 NSWLR 697 Zoneff v The Queen (2000) 200 CLR 234
PARTIES :	Regina David Stafford Ray
FILE NUMBER(S):	CCA 60884/01
COUNSEL:	M Grogan (C) D Dalton (A)
SOLICITORS:	S E O'Connor D J Humphreys

LOWER COURTJURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	70036/00
LOWER COURT JUDICIAL OFFICER :	O'Keefe J

…
Q 224	Did you throw that pink Bras & Things plastic bag, carrybag, did you throw that in the big, green Otto bin?
A	(NO AUDIBLE REPLY)
Q225	Are you sure?
A	I don’t, no, I don’t remember. I don’t know, I don’t know if I should answer any more questions, ‘cause I’m not sure, you know?
Q226
A	I’d rather, I’d rather talk to a solicitor before I go any further with this.
…
Q 233	And you don’t wish to be interviewed any more?
A	Well, ‘cause I, yeah, I don’t want to be interviewed until I talk, talk to someone that, you know, ‘cause I don’t, I can’t remember, I can’t remember what I did because my mother was so concerned about the things she had around the house, pethidine and morphine and all kinds of stuff, she was so concerned about all that stuff, before I rang, I tried to ring my sister and I ran around and grabbed whatever I could find and, and threw it in that green Otto bin out the front, and I can’t, I can’t - -“