JUDGES:	WINNEKE, P., CHARLES and NETTLE, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 October 2004
DATE OF JUDGMENT:	19 November 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 206	First Revision: 23 November 2004

---

CRIMINAL LAW – Murder - Evidence – Lies by accused – Post offence conduct of accused – Whether omission by applicant to tell police certain facts could be used as evidence of consciousness of guilt – R v Smith, Ashford and Schevella (1990) 50 A Crim R 434, applied.

CRIMINAL LAW – Trial – Final address – Prosecutor many times in final address posing rhetorical question: “if it were not the accused man, then who was it?” – Whether permissible – Prejudicial effect – Palmer v The Queen (1998) 193 CLR 1; R v Hilsley [1998] VSCA 143, applied.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. R.A. Elston	Ms K. Robertson, Solicitor for Public Prosecutions
For the Appellant	Mr. P.G. Priest Q.C. with Mr. J.D. Singh	John Anile Pty.

WINNEKE, P.:

I have had the advantage of reading the reasons for judgment which Nettle, J.A. proposes to publish in this matter. I agree with the conclusions which have been reached by his Honour; namely that the application for leave against conviction should be allowed, and that there should be a new trial. I desire to add some comments of my own. For the purpose of doing so, I adopt the description of the facts and the issues given by Nettle, J.A.

Ground 5 : Probative Lies

In this case, the prosecutor basically relied upon what he described as motive, opportunity and “probative lies” to circumstantially prove that the accused was the killer of his parents. One of the central planks of this finely balanced circumstantial case (at least, as it seems to me) was lies and conduct which, so the prosecutor submitted, constituted evidence of guilt.

The six “consciousness of guilt” lies upon which the prosecutor relied in proof of the case against the applicant, are set out in paragraph [18] of the reasons for judgment of Nettle, J.A. (I will adopt the numbers which he gives to them.) Those lies were “identified” by the prosecutor during his closing address. No objection appears to have been taken to them by trial counsel for the applicant; and the trial judge adopted them for the purposes of his charge to the jury, without questioning their capacity to constitute implied admissions. This inaction has led to the submission in this Court that it is now too late for the applicant to assert that the admission into evidence of the alleged “lies”, and the use made of them, has caused a miscarriage of justice. I do not agree. Although it is the function of the prosecutor to identify such “lies” as are contended to be implied admissions, the use which the jury can make of the evidence cannot depend upon the…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v Russo

Details

AGLC: R v Russo [2004] VSCA 206
Case: [2004] VSCA 206
Decision Date: 19 November 2004

CaseChat Overview and Summary

The case of R v Russo was before the court and involved a murder charge against the applicant. The nature of the dispute centred on the admissibility of certain evidence, including the applicant's post-offence conduct and omissions, as well as the prosecutor's rhetorical questioning during the final address. The court was tasked with determining whether the evidence presented could be used to demonstrate the applicant's consciousness of guilt and if the prosecutor's rhetorical questions were prejudicial.

The legal issues before the court included the admissibility of evidence pertaining to the applicant's lies and omissions, as well as the potential prejudice caused by the prosecutor's rhetorical questioning during the final address. The court considered the principles set out in R v Smith, Ashford and Schevella and Palmer v The Queen, along with R v Hilsley, to assess whether the evidence and questioning were appropriate and admissible.

The court found that the applicant's omission to inform the police of certain facts could be used as evidence of consciousness of guilt, following the principles established in R v Smith, Ashford and Schevella. The court also determined that the prosecutor's rhetorical questioning during the final address, while potentially prejudicial, did not warrant a mistrial as it did not significantly impact the fairness of the proceedings, in line with the principles set out in Palmer v The Queen and R v Hilsley.

As a result of the court's findings, the evidence in question was deemed admissible, and the trial proceeded without a mistrial being declared. The final orders of the court were that the evidence pertaining to the applicant's omissions and post-offence conduct could be considered by the jury in determining the applicant's guilt or innocence.

Orders