R v Smart
[2010] VSCA 33
•4 March 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 658 of 2008
| THE QUEEN |
| v |
| KEITH SMART |
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| JUDGES | WARREN CJ, NETTLE and ASHLEY JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 9 February 2010 |
| DATE OF JUDGMENT | 4 March 2010 |
| MEDIUM NEUTRAL CITATION | [2010] VSCA 33 |
| JUDGMENT APPEALED FROM | [2008] VSC 155 (Lasry J) |
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Criminal law – Conviction – Manslaughter – Circumstantial evidence – Whether prosecutor and the judge below contravened principles stated in R v Thompson [2008] VSCA 144 – Alleged post-interview revelation – Recent invention – Whether rule in Browne v Dunn (1893) 6R 67 breached by prosecutor and/or applicant’s counsel – Alleged lies and other post-offence conduct – Consciousness of guilt – Of what offence – Whether jury should have had reasonable doubt that applicant was the killer – Application refused.
Sentence – Whether judge mischaracterised offence as a serious example of unlawful and dangerous act manslaughter – No specific sentencing error in sentencing remarks – Application refused.
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| Appearances: | Counsel | Solicitors |
| For the Crown | Mr D A Trapnell SC | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Applicant | Mr D A Dann | Galbally & O’Bryan |
WARREN CJ:
For the reasons stated by Ashley JA, I would refuse the applications for leave to appeal conviction and sentence. I also agree with the remarks of Nettle JA upon consciousness of guilt and ground 2. This is a case which amply demonstrates the value and utility of the Victorian Criminal Charge Book[1] in the conduct and management of criminal trials. Whilst prepared as a guide or aide to judges, not to be followed slavishly but appropriately applied and adapted, the text is a guide that generally enables judges to reduce the risk of appellable error.
[1]Judicial College of Victoria, Victorian Criminal Charge Book (4.7.2.3) ( JA:
I have had the advantage of reading in draft the reasons for judgment of Ashley JA and, save for one matter, there is nothing which I can usefully add. I agree with his Honour, substantially for the reasons he gives, that the applications for leave to appeal against conviction and sentence should be refused.
The one matter on which I wish to say something further concerns Ground 2 and, more precisely, the applicant’s contention that the judge erred in not directing the jury specifically that, when considering the lies and other post-offence conduct on which the Crown relied as evidence of consciousness of guilt of the offence of manslaughter, they should consider that one possible explanation for the lies and other conduct was that the applicant was conscious of his guilt of the lesser offence of assist offender and by his lies and other conduct sought to distance himself from his complicity in that offence.
I am persuaded by the reasons given by Ashley JA that, in the circumstances of this case, the directions which the judge gave were sufficient to bring that possibility home to the minds of the jury. But, with respect, I think it would have been preferable if his Honour had given a specific direction of the kind which is
contended for. For if nothing else, it would have put the issue beyond argument and, more generally, I think that it should ordinarily be assumed that such a direction will be of assistance to a jury when faced with alternative counts.
The Victorian Criminal Charge Book[2] suggests that such direction might take the following form:
In this case, one possible explanation for the accused’s alleged lie is that s/he was trying to avoid being implicated in the crime of [insert other offence] rather than [insert offence charged]. Before you can use the alleged lie as evidence that NOA implicitly admitted responsibility for [insert offence charged] you must be satisfied, having regard to all of the evidence, that this was not the reason for his/her behaviour. That is, you must be satisfied that the reason NOA told the lie was because s/he believed she had committed acts which constituted the crime of [insert offence charged] and feared being implicated in that crime – not because s/he feared being held responsible for some other wrongdoing or unlawful behaviour.[3]
[2]Judicial College of Victoria, Victorian Criminal Charge Book (4.7.2.3).
[3]The Book also offers an appropriate model direction for cases where the evidence of consciousness of guilt is of post-offence conduct other than lies.
I agree. With appropriate adaptation, that should suffice for most cases where there is more than one charge in issue, either as separately listed counts on the presentment or indictment or as statutory or common law alternatives to the count or counts which are charged.[4]
[4]R v Ciantar (2006) 16 VR 26, 50 [77]–[80].
ASHLEY JA:
A jury in the Supreme Court found the applicant, Keith Smart, not guilty of the murder of Katie Lee Tanner on or about 14 October 2006, but guilty of her manslaughter. On 13 May 2008 the trial judge convicted the applicant, and sentenced him to 11 years’ imprisonment. His Honour fixed a non-parole period of eight years. He made a declaration as to pre-sentence detention.
Now the applicant seeks leave to appeal against conviction and, if conviction is sustained, then sentence. The grounds relied upon are as follows:
Conviction
GROUND 1: The trial of the Applicant miscarried as a result of the Learned Prosecutor’s reliance upon the alleged discrepancies between the Applicant’s evidence and matters that had been put by his Counsel.
GROUND 2: The Learned Trial Judge erred in failing to direct the jury that – before they could use the evidence of lies and post offence conduct as evidence of consciousness of guilt to the crime of manslaughter – they would have to exclude the possibility that such lies and post offence conduct related to the crime of accessory after the fact rather than manslaughter.
GROUND 3: The guilty verdict of the jury was unsafe and unsatisfactory.
Sentence
GROUND 1: The Learned Sentencing Judge erred in finding that the deliberateness and violence of the attack launched against the victim placed this offence of manslaughter as a serious example of unlawful and dangerous act manslaughter.
Circumstances
The applicant is a man born 5 October 1952. So, at the time of the offence of which he was convicted, he was aged 54. He was not in work, being in receipt of ‘compo’. He was a man without prior convictions. Evidence was given at trial, including by his former wife Jeanette, that he was a gentle man, never violent.
The victim Katie Lee Tanner, was aged 21 at the time of her presumed death. I say ‘presumed’ because her body was never found. Since, however, it was in substance not in issue at the trial that she was dead, I shall refer to her, at times, as ‘the deceased’.
Ms Tanner had been in a relationship with the applicant’s son, David Smart (‘DS’). There was a child of that relationship, Jayden.
The relationship had broken up. DS had formed a new relationship, with Sandra Whitlock (‘SW’). By the time of the applicant’s trial, they had married.
After her break-up with DS, Ms Tanner for several periods resided with the applicant. The last period was for about four months leading up to 14 October 2006. Their relationship was apparently amicable. There was uncontradicted evidence that the applicant provided her with money at times, and did not require repayment. Indeed, that he had so acted was a source of some annoyance to other family members.
There was no evidence of any sexual relationship between the applicant and Ms Tanner. She apparently had a relationship with a man named ‘Lee’, who regularly visited the applicant’s home, and who took Ms Tanner out on occasions.
There was evidence, some anecdotal, some from eye-witnesses, of bad blood between Ms Tanner, DS, SW and Jeanette Smart (‘JS’) the applicant’s estranged wife. The recurrent source of friction had to do with the custody of Jayden, and welfare payments referable to custody which Ms Tanner received. On one occasion, the bad blood had led to SW inflicting physical injury on Ms Tanner, and to she inflicting injury on SW. There was also evidence that DS had laid hands on the deceased (the extent of physical contact was in dispute), and that he had threatened violence against her. Ms Tanner had taken restraining orders out against the three of them, and one or more cross-orders had been obtained. It seems that the various orders had been ‘lifted’ in early 2006.
Some days prior to Saturday 14 October 2006, Jayden went to stay with DS and SW.
Ms Tanner was last seen alive on the night of Saturday 14 October 2006. At her suggestion, they attended a house party. The applicant gave an account of drinking 6 cans of beer whilst at the party, and of Ms Tanner drinking several bottles of a vodka mixer. I interpolate that he also gave evidence of drinking a quantity of beer earlier in the day.
The applicant and Ms Tanner left the party at about 10.00pm. On the applicant’s account, they returned directly to his home at Cranbourne.
Ms Tanner’s father, David Tanner, spoke with the applicant on Monday 16 October 2006. He had been unable to contact his daughter by phone on either 15 or 16 October.
Mr Tanner gave evidence that the applicant told him that, on returning from the party, he had been tired and had gone to bed early. Ms Tanner had then been sitting on a couch, playing with her phone. Then, on the Sunday morning, DS had come to the house with Jayden. They had gone into Ms Tanner’s room. She was not there. DS had returned on the Monday. He had, unsuccessfully tried to contact Ms Tanner by phone.
According to Mr Tanner’s evidence, DS gave him an account of events on Sunday 15 and Monday 16 October which coincided with that given by the applicant. But according to the evidence of DS and SW, whilst they had attended the applicant’s home on Sunday 15, there had been no answer at the door.
The applicant was first interviewed by police on 29 October 2006. He made a written statement. He said that he had got up at about 8.00am on Sunday 15 October. The door to the applicant’s bedroom had been closed. At around 10.00am his daughter had driven him to the home of a friend, Glenn Ford. At around 3.00pm DS had rung him to ask if he knew where Ms Tanner was. He, the son, said that he had been to the applicant’s home and that no one was there. He did not say that he had been into Ms Tanner’s bedroom.
The applicant further stated that his daughter had driven him home from Mr Ford’s home – he arriving at about 6.00pm. He had knocked on Ms Tanner’s door. There being no answer, he had gone in. The room was in its normal state, ‘a mess’.
Further according to the applicant’s statement, he had got up at about 8.00am on Monday 16 October. He had not checked Ms Tanner’s bedroom. Normally, she did not get up until late afternoon. He did try to ring her on several occasions, but without reply.
As will be seen, a number of questions arose at trial concerning the movements and actions of the applicant, DS and SW on 15 October. But one thing is clear. Contrary to his first statement, the applicant’s daughter did not drive him to and from the home of his friend, Glenn Ford (which is not to say that he did not visit Mr Ford that day).
On 27 October, a policeman searched a number of rubbish bins at the applicant’s premises. All of the bins, except for one which contained a little garden waste, were empty. That fitted in with evidence which suggested that the bins (save for the one which stored garden waste) were emptied weekly – the first collection date after 14 October being 19 October and, inferentially, the next collection date being 26 October.
On 31 October 2006 the applicant was interviewed by police and search warrants were executed at his home and in respect of a Ford Meteor sedan (‘the Meteor’) which was his usual means of transport at the time.
That evening, a search of the applicant’s garbage bins led to discovery of a bloodied mallet, a lady’s wallet, ripped and cut-up personal cards belonging to the deceased, and a smashed mobile phone which was like the one which she possessed.
Examination of the applicant’s home on the evening of 31 October 2006 led to discovery of bloodstains - particularly on a couch and under a carpet runner in the sitting room, and on the floor of Ms Tanner’s bedroom. DNA was obtained from areas of bloodstaining and from a bloodstain on the mallet.
The burden of the forensic evidence upon which the Crown relied was as follows (In each instance statistical probability was asserted. I will not keep repeating it): (1) material was obtained from items used by Ms Tanner, and from her parents, which enabled identification of her DNA profile; (2) material was also obtained for that purpose from the applicant, DS, and Glenn Ford; (3) the DNA of bloodstain on the mallet head matched that of Ms Tanner; (4) the major contributor to DNA on the mallet handle was the applicant; (5) Ms Tanner was a minor contributor to the DNA found on the handle; (6) the applicant’s DNA was found on one only of the cards retrieved from the garbage bin;[5] (7) Ms Tanner’s DNA was identified on swabs taken from bloodstains on the couch, from two bloodstains on the carpet, and from a bloodstain in the bedroom;[6] [7] (8) the applicant’s DNA was identified on a swab taken from one area of the carpet in the sitting room, and from a swab taken from a bloodstain in the bedroom;[8] (9) DS was excluded as a contributor to the DNA in each instance. So was Mr Ford.
[5]Most of the cards revealed such a mixture of DNA as to make individual analysis impossible.
[6]One of them was in front of the couch. The other was closer to a tiled area leading to a passageway.
[7]At least where mixed DNA was present, it could not be said that the bloodstain itself was necessarily a stain made by Ms Tanner’s blood.
[8]For the purposes of the appeal, and having regard to a further statement made by Ms Ryan on 5 February 2010, DNA profiles previously reported by her as having originated from three or more people should no longer be relied upon. That affected her conclusions with respect to analysis of two swabs. Counsel for the applicant made no additional submission based upon this modest limitation upon the witness’s previously expressed opinion.
Cross-examination of Ms Ryan, the forensic scientist/DNA expert, focussed upon (1) explanations why the applicant’s DNA might have been present on various items and at various places without this implying that he had any role in killing Ms Tanner; (2) the absence of the applicant’s DNA on items on which it might have been expected if he had killed Ms Tanner; (3) the relatively small amount of blood at the premises;[9] (4) the absence of any bloodstaining in the boot of a Magna station wagon (‘the Magna’) – as to which, more later; and in the interior and boot of the Meteor; (5) the fact that reference samples had not been obtained from SW, JS, and a man named Scott who was known to Ms Tanner.
[9]The learned judge understandably excluded from the jury’s consideration evidence of a number of areas which were luminol positive, but in respect of which no further testing was done to establish whether the positive reaction was caused by blood, still less blood which could be DNA-linked with Ms Tanner.
I turn to the applicant’s interview by the police on 31 October 2006. Having regard to ground 1 on the conviction application, I note that the interviewing officers were Maurice Ryan (who became the informant) and Timothy Argall.
On this occasion the applicant –
(1) Stated that he had lied in saying that his daughter had driven him to and from Mr Ford’s home on 15 October. He explained that he had told the untruth because he had been unlicensed at the time.
(2) Said that he had lent Ms Tanner amounts totalling a few thousand dollars in the months before her disappearance, and that he was not then ‘flush’ with money. But he denied the suggestion that he felt she had ‘used’ him (this being an evident attempt by the police to discern a motive for the applicant having killed Ms Tanner).
(3) Stated that he had been told by her friends since her disappearance that she was a substantial drugs user; and that DS had told him about it at the time of the break-up of their relationship.[10]
[10]Uncontradicted evidence was given at trial by friends of Ms Tanner that she was a user of amphetamine, and ‘crack’ - ‘particularly at weekends’ according to one witness, and ‘almost daily’ according to another.
(4) Stated that Ms Tanner loved her children – that is, Jayden and her daughter by another relationship. He didn’t think that she would ever abandon them.
(7) Said that, on the evening of 14 October, Ms Tanner left the room in which the party was being held ‘a few times’.
(8) Said that whilst at the party he drank about half a dozen cans of Victoria Bitter.
(9) Said that he went to bed within a short while of arriving home, and soon went to sleep, with the television still running. It was his expectation that Ms Tanner would have ‘got onto someone to go out’, it being a Saturday night.
(10) Stated that on 15 October, he left to go to Mr Ford’s home at about 10.00am in the Meteor.
(11) Contrary to what he had said two days earlier, said that it had been his estranged wife, JS, who had called him on 15 October to say that DS had taken Jayden to the applicant’s home, and that Ms Tanner was not there. He was ‘pretty sure’ that the caller had been JS and not his son.
(12) Said that he could not say if his son had entered the home on 15 October. His son did have a key (DS gave evidence that he had lost it).
(13) Said that on 15 October he had returned from Mr Ford’s home in his own vehicle.
(14) Stated that he had banged on Ms Tanner’s bedroom door and, when there was no answer, that he had opened the door. Ms Tanner was not there. He had not been worried, he thought that she was out partying.
(15) Stated that Ms Tanner constantly used her mobile phone.
(16) Said that on Monday 16 October he had rung her mobile phone number. She had not answered his call(s). Neither had she answered calls made by her father that day.
(17) Stated that Ms Tanner did not have a vehicle of her own. When she went out, if she was going to take a car, she would take his car.
(18) Said that when Ms Tanner went out, she always took her mobile phone; and, he would think, her purse.
(19) Said that he owned a rubber mallet. Ordinarily, he kept it in the bar at his home. He could not explain why it had been found in one of his garbage bins.
(20) Said that the bin in which the mallet and various items belonging to Ms Tanner were found was emptied weekly.
According to the uncontradicted evidence of Emily Smart, the applicant’s daughter, she was interstate between 8 and 16 October. On 30 October she had a conversation with her father. She corrected him after he told her that he had said to the police – that is, on 29 October - that she had driven him to Mr Ford’s home on 15 October. She reminded him that she had been interstate at the time.
Ms Smart’s evidence gave some support for an argument that the applicant had made an honest error when saying that his daughter had driven him to and from Mr Ford’s home on 15 October, having confused that occasion with some other occasion when she had done so. But – (1) the applicant’s explanation for saying that he had been driven to Mr Ford’s home was that he had a reason for concealing the fact that he had been the driver – not that he had been confused about the particular occasions; and (2) his account of events in the interview on 31 October said nothing about him having called at the home of JS on the morning of 15 October, having borrowed the Magna, and having returned it some time after 6.00pm that evening.
That the applicant did take the Magna on 15 October, and later return it, was not in dispute at trial.
The purchase of the vehicle had been funded by the applicant. Up until mid October 2006, it had mainly been used by JS and his daughter. There was evidence that he had been making repairs to the vehicle, with an intention of gifting it, in time, to Emily.
On 2 November 2006, the applicant, who had not yet been arrested and charged, again borrowed the Magna from JS.
On 3 November 2006 the applicant purchased a bottle of degreaser. He also obtained, through a friend, a new boot mat for the vehicle. He applied the degreaser to the boot compartment and – on his account, with some help – replaced the existing boot mat.
Emily Smart gave evidence that she had spilt oil in the boot some months previously; and that it had ‘bore through the whole bottom and side, staining the mat’. She also gave evidence of putting tan bark in the boot area.
The applicant gave evidence. He averred, inter alia, that -
(1) He had nothing to do with the disappearance of Ms Tanner.
(2) He had slept throughout the night of 14-15 October. He had not heard anything, or been awakened.
(3) He had borrowed the Magna on 15 October because it was larger than his own vehicle, and more comfortable for him because he had a leg injury.
(4) He had purchased the degreaser to clean oil in the boot. The mat replacement was part of his work to repair the vehicle.
(5) His statement in the record of interview about his daughter having picked him up at Mr Ford’s home had been a simple mistake, she having picked him up in the past.
(6) His work on the vehicle on 3 November had been conducted in an appropriate place, not (as the Crown contended) so as to hide what he was doing.
(7) Any details not proffered by him to the police were the consequence of details not being directly sought.
The Crown case
The Crown case was that the applicant killed Ms Tanner at his home on the night on 14-15 October, and that he used the station wagon to remove her body. Then, it was contended, he used the degreaser to clean the boot of the vehicle; and replaced the boot mat so as to eliminate any risk of incriminating material being found on it.
The circumstantial case which the Crown advanced had, inter alia, these elements:
(1) Ms Tanner last being seen alive in the company of the applicant.
(2) The applicant and Ms Tanner, by his admission, having been alone in his home when she was last known to have been alive.
(3) Certain forensic evidence, which suggested that Ms Tanner had been injured or killed when in the applicant’s home.
(4) The fact that Ms Tanner had not used her mobile phone after the Saturday evening.
(5) The fact that Ms Tanner had not made use of the Meteor after returning to the applicant’s home on the evening of 14 October.
(6) The fact that Ms Tanner had not used her credit cards or accessed Centrelink payments after 14 October.
(7) The applicant’s failure on two occasions to say anything about taking the Magna on the morning of 15 October 2006.[11]
[11]That is, in his statement of 29 October and his record of interview on 31 October.
(8) What was said to have been a false reason given by the applicant for borrowing the Magna on 2 November 2006.
(9) What was said to have been the applicant’s anxiety to obtain a new boot mat.
(10) The applicant’s cleaning of the boot of the Magna, and replacement of its boot mat, on 3 November 2006 – that is, after he had been interviewed, and after he had been told (by the police on 31 October) that blood stains could be detected despite ordinary cleaning.
(11) Discrepancies in the accounts given by the applicant and DS about the son’s attendance at the applicant’s home on 15 October 2006; and between the applicant’s account and what he told Mr Tanner on Monday 16 October (although, according to Mr Tanner, the accounts given to him by the applicant and DS were the same).
(12) An alleged attempt by the applicant to hide blood spots in front of the couch by placing a carpet runner over them; and then the invention, at trial, of an explanation for placing the runner in that position.
No real attempt was made by the Crown to explain, however, why, if he had killed Ms Tanner, the applicant had placed incriminating material in his own garbage bin more than two weeks after the alleged killing.
The defence
Always bearing in mind the fact that the applicant carried no burden of proof, the ‘case’ advanced on his behalf at trial was that he had no motive to kill Ms Tanner, and had not done so. Others had a motive to kill her, particularly DS.
In cross-examination of DS – (1) it was put to him, and he denied, that he had threatened to kill Ms Tanner; (2) he stated, in answer to counsel’s question, that he did not know what had happened to her; (3) it was put to him, and he denied, arguing with Ms Tanner in the late evening of 14 October at the applicant’s house; (4) he stated that he did not remember, but could not deny, arguing with Ms Tanner on about 21 or 22 September 2006; (5) he denied putting the blood-stained mallet in the bin, or seeing someone else do it; (6) he was closely questioned about alleged discrepancies in different accounts he had given about his movements on 15 October; (7) it was suggested to him, in effect, that he had not attempted to call Ms Tanner after 15 October because he knew she was dead; (8) he denied that he had threatened to kill another man, and had boasted of killing a person and getting away with it.
Although the nett effect of the cross-examination was much less than the import of the questions asked, its implication was clear: DS was a violent man, estranged from Ms Tanner, and he had killed her.
In final address, counsel for the applicant in substance charged DS with killing Ms Tanner (he accepted that the jury would be satisfied that she was dead).
Although DS was the main alternative suspect identified by applicant’s counsel, some of his cross-examination of SW, and to a lesser extent of JS, suggested their involvement in the presumed killing. A man named Scott, with whom Ms Tanner had at one time been in a relationship, was also nominated as the possible killer.
Ground 1
Applicant’s counsel submitted that the prosecutor had in three instances contended that the applicant had given evidence which was recent invention. This had been the springboard for an attack on his credit. In different ways, counsel submitted, the prosecutor and the learned trial judge had contravened principles stated in R v Thompson,[12] a recent authority bearing upon the application of the rule in Browne v Dunn in criminal matters.[13]
[12][2008] VSCA 144.
[13](1893) 6 R 67. The applicability of the rule has been discussed in a number of differing factual situations. They have included the situation where a Browne v Dunn direction was given when it should not have been: R v MG [2006] VSCA 264.
For present purposes, counsel relied upon the following passages in the reasons for judgment of Redlich JA in Thompson,[14] some of which were claimed to be factually apposite:
[14]With whose reasons Hansen AJA relevantly agreed.
111The rule in Browne v Dunn is a rule of law and practice. In a criminal trial the rule will become relevant during the cross-examination of any prosecution or defence witness whose evidence is to be contradicted by other evidence called by cross-examining counsel or otherwise challenged. The obligation will also arise where the cross-examiner intends to adduce evidence as to the conduct of the witness which may be a matter of controversy. That conduct must be put to the witness. The rule rests upon notions of fairness. It is designed to give the witness, and the party calling that witness, an opportunity to meet that challenge and to facilitate the tribunal’s assessment of the reliability and accuracy of the witness. Where matters in controversy are not ‘put’ to the witness in cross-examination, the tribunal’s capacity to assess the credit of the witness is likely to be impeded. Any relaxation of the obligation to comply with this rule increases the risk of injustice to the witness and the party calling that witness.
112Where in breach of the rule, a matter has not been ‘put’ to a witness by counsel and is subsequently deposed to in evidence by counsel’s client, an inference may arise that the matter has been recently invented. It is a process of reasoning fraught with peril which should therefore be employed only with much caution and circumspection, there being many explanations of such omissions which do not reflect upon the credibility of the witnesses. Accordingly, in a criminal trial the application of the rule and the circumstances in which an inference should be drawn from non-compliance with the rule must be seriously qualified. Where a party seeks to invite the jury to draw such an inference, a careful direction should normally be given concerning the operation of the rule and the limited circumstances in which that inference may be drawn.
113I agree with the observations of Giles J in Oldfield v The Queen that there are three discrete stages of a criminal trial at which care must be taken to ensure that the application of the rule does not produce any unfairness:
‘Thus the circumstances of the particular case must be examined to see whether the Crown Prosecutor’s cross-examination was admissible, whether the cross-examination and the use made of it in address conformed with caution and circumspection, and ultimately whether the jury should have been assisted by reminder that there could be explanations for the inconsistency between what was put to the complainant and the accused’s evidence other than that the accused’s evidence was recently made up.’
…
115The prosecutor did not cross-examine the applicant when he gave evidence, about the fact that these matters were not put to the prosecution witnesses when his counsel had cross-examined them. The prosecutor failed to comply with the rule. In R v Scott, Hulme J, with whom Sully and James JJ agreed, said that where the Crown intends to contrast the failure of the accused’s counsel to put in cross-examination some matter to which the accused or his witnesses subsequently deposed: ‘the rule in Browne v Dunn itself makes it obligatory to put to an accused the inferences or conclusions which it will be suggested should be drawn, in order that the accused may provide such explanation as he is able.’
119The trial judge should have resolved the question whether it was an appropriate case for the prosecutor to invite the jury to draw an inference of recent invention, before the prosecutor advanced that argument before the jury. The failure of the prosecutor to afford the applicant an opportunity to comment on those matters denied the jury the benefit of any explanation from the applicant for why such matters had not been pursued by his counsel. The prosecutor not having discharged his obligation, the trial judge should not have permitted the prosecutor to make the foreshadowed comment …
120Ordinarily, if the prosecutor is permitted to make such a comment, he should provide some explanation of the rule and advert to other explanations for counsel’s omission. He did not do so …
122… The jury was left with the unqualified assertion from the prosecutor that as these matters had not been raised with Crown witnesses it could be inferred that the applicant had, during the course of his evidence, made up those parts of his evidence with the unmistakeable imputation that he was telling lies.
123Once such an argument had been advanced by the prosecutor, the jury should have been given a warning by the trial judge. That warning should provide the jury with some explanation for the rule and adequately draw to their attention some of the possible explanations for the omissions which would not reflect adversely upon the credibility of the accused. In R v Birks, Gleeson CJ identified some of those explanations:
‘Counsel may have misunderstood his instructions. The witnesses may not have been fully co-operative in providing statements. Forensic pressures may have resulted in looseness or inexactitude in the framing of the questions. The matter might simply have been overlooked.‘
124Allegations of recent invention are potentially devastating to the credibility of the witness against whom they are made. The submissions of the prosecutor were directed to three matters all of which bore in this way upon the applicant’s credibility. Having failed to put these matters to the applicant in cross-examination, the prosecutor should not have made the comment. The prosecutor having made a comment, defence counsel could have asked the trial judge to instruct the jury to disregard the comment and explain why the inference was not available. On any view the trial judge was obliged to give the jury a careful direction in relation to the rule and explain the difficulties associated with drawing an adverse inference against the applicant.[15]
[15]Footnotes omitted.
As will be seen, counsel placed considerable store on the failure by the learned trial judge to give any direction as to reasons why, other than recent invention, matters given in evidence by the applicant and not put to Crown witnesses might be explicable. The content of such a direction was addressed by King CJ in R v Manunta.[16] Counsel disavowed a contention that a judge must always give a direction of that kind when a party relies upon an alleged breach of the rule in Browne v Dunn. But in argument he seemed to come very close to making such a submission, which is not justified by Thompson or by the authorities upon which Redlich JA relied.
[16](1990) 54 SASR 17, 23-24. His Honour’s formulation has often been cited with approval.
I will refer to the subject-matter of the alleged recent inventions discretely, and will express my opinion as to whether ground 1 is made out in the particular instance. I will do so by considering the three stages for assessing unfairness identified by Redlich JA in Thompson at [113]. It will be necessary to recapitulate circumstances to which I have already referred.
The interview on 31 October 2006. An unrecorded statement?
The applicant was interviewed by Messrs Ryan and Argall 31 October 2006: In the course of the interview, the applicant stated several times that he had driven the Meteor when visiting his friend Glenn Ford on Sunday 15 October 2006. He said nothing about having called by his wife’s residence, either on his way to Mr Ford’s, or on his return home.
Mr Argall gave evidence. He was not cross-examined to suggest that on 31 October, after the conclusion of the interview, the applicant had volunteered that he had borrowed the station wagon on 15 October.
Mr Ryan gave evidence after Mr Argall had given evidence. There was this cross-examination:
Do we agree on this. Is the fact of the matter this, that is was Keith Smart who told you that he borrowed the green Mitsubishi on the Sunday?---No, Keith Smart never mentioned that to us.
No. Is that how you found out that Keith Smart had borrowed the green Mitsubishi?---No.
No? How did you find out?---We found out from speaking to Sandra Whitlock.
Did you?---Yes.
The cross-examination turned out to be based on a wrong transcription of evidence given at the committal hearing. There, the witness in fact said that he had learned of the matter through the applicant’s wife.
In any event, the cross-examiner returned to the issue of how it was that the police came to learn that the applicant had taken the Magna on 15 October. Thus:
I just wanted to put this to you: after the record of interview was completed and before he was taken home I want to suggest to you that Mr Smart told you that he’d also borrowed his wife’s car on the Sunday?---Absolutely not.
And I suggest to you that you said to him, you asked him, was the wife’s car to be borrowed, was it ever at his Cranbourne address on the Sunday and he said no?---He never said such a thing.
And I suggest to you that you said ‘we’re only interested in the car that left the house and came back to the house’?---If Mr Smart said anything like that we would have seized that car immediately.
I suggest to you that that is what he did tell you?---As I said, if he did say it we would have seized the car immediately.
You deny that he said it to you, do you?---Absolutely.
So we disagree on that, yes?---You are wrong.
I’m suggesting to you to that’s what he told you, you say that he didn’t?---If he had have said that we would have seized that car immediately.
So we disagree on that?---Absolutely.
In re examination, Mr Ryan explained the sequence of events by which he learned that the applicant had gone to his wife’s home and borrowed the station wagon on 15 October.
In evidence-in-chief, the applicant was asked these questions and gave these answers:Is there any reason that you didn’t tell the police in the record of interview about borrowing your wife’s car on the Sunday?---Not really other than that I was about to tell them and I’m not sure which detective it was, said which car were you in when you left the house, I said the blue Meteor and they said and which car did you come back in, I said the blue Meteor. He said well, we’re interested in what cars were at the house.
But in the record of interview you agree that you didn’t mention borrowing your wife’s car?---No, I didn’t.
Is there any reason why you didn’t mention that in your record of interview?---No, not really. I didn’t think it was important.
When the record of interview finished you were eventually taken home we have evidence around about 6 o’clock in the morning?---Yes.
Between the time that the record of interview finished in the early hours of the morning of 1 November after the record of interview finished - - -?---Yes.
- - - was any mention made abut that green car?---Only that I said that I had, after the tapes had gone off and that, that I’d used me wife’s car for a little while and that’s when it was said to me which car did you leave in, which car did you come back in and that’s all they seemed to be interested in so I just stopped there and it never went anywhere.
How did it come up that after the interview had finished you mentioned your wife’s car? What made you mention your wife’s car?---I really don’t know. I’m not sure whether one of them asked me if there were any other cars there that sort of clicked it because we were still having a conversation, even though the tapes had stopped we were still talking about things the whole time I was there.
During the course of the record of interview had you given any consideration to that green car?---No, not at all.
Why was that?---Well, I didn’t think it was important. I mean, it hadn’t been at the house so - - -
Hadn’t been at what house?---At Cranbourne, I hadn’t been anywhere near Cranbourne in it.
When you say Cranbourne - - -?---Where I lived, I hadn’t been anywhere near the house in it.
The applicant was cross-examined about the matter:
… could I ask you in relation to the suggestion that’s now made that you told the police about having collected Jeanette Smart’s car on that Sunday, when was it that you first recalled or say you recall having said that to the police?---I think it was towards the end when the tapes were off.
See, I suggest to you - - -?---It wasn’t - - -
I suggest to you that that’s something you’ve just made up?---No. No.
And I suggest to you it’s something that you made up after you discovered what the transcript at the committal had said about how it was the police found out about this green car in the first place?---No.
And you were acting on the basis when you were giving this evidence, that you acted on the basis that the police had said or Mr Ryan had said at the committal that he’d found out through you?---No.
But the problem with that, I suggest, is that, in fact, what Mr Ryan says was that he found out through Jeanette Smart?---Yes. I think he did say that, yes.
And I suggest to you that what happened was that you relying on what you thought he had answered at the committal came up with a new assertion in this case?---No.
That you’d, in fact, told the police on the night of that record of interview?---I did.
That is a lie, Mr Smart?---No, it’s not.
You did not tell the police that?---I did.
There was this re-examination:
Now, you were also asked about this aspect of who it was who told the police about yourself borrowing the green car?---(Witness nods).
And you told the learned prosecutor that and you said in evidence-in-chief, more importantly in cross-examination, that you told the police that before you left the police station on 1 November?---That’s correct.
How did it come about that you told them that, what led to that?---I don’t know. We were just talk and that and I said I did drive another car that day, me wife’s but it wasn’t at the house type thing and I think it might have been Mr Argall that said, ‘Which car was at the house, which car did you leave in?’ I said, ‘The blue Meteor’ and he said, ‘And you come back in that?’ And I said, ‘Yeah’, he said, ‘Well, that’s the car we’re interested in’.
The prosecutor addressed the issue in her final address:
He went to every length possible not to talk about that green car. It’s no coincidence, I suggest to you, that when he’s released from the Homicide Squad offices in the early hours of 1 November 2006 he doesn’t waste much time in getting hold of that green car and detailing that boot, getting a new mat, getting the degreaser. He doesn’t waste much time at all, but I will come to that in more detail in a moment. But that’s not just a, ‘I didn’t think it was important’ type omission from the record of interview, as he said here. I suggest to you what he’s done in that witness box yesterday and the day before was he’s brazened it out. He’s tried to tough it out. ‘I’ve got an explanation for everything’ and the explanation is just getting bigger and bigger, I suggest to you. He just kept on layering on things. I will come to some of those matters presently, but by the time he’s in the witness box here he said ‘I just didn’t think it was important about the green car’. And then it got even worse I suggest because he said ‘I did tell, actually I did tell the police’, it was at the end of the record of interview, when the tape was switched off ‘I did tell them that’. ‘I think it was Mr Argall.’ Remember he said yesterday ‘yes, it was Mr Argall I said that to’. Sees the informant is sitting here (indicating). Because of, course, it had been put to the informant, hadn’t it? It had been put to him by [applicant’s counsel] ‘he told you, he told you about this green car at the end of the interview’. Remember the reaction of the informant. ‘He didn’t tell us that.’ Here is the Homicide Squad investigating what they now believe is the murder of Katie Tanner. They’ve seized the blue Meteor on the day that they arrested Keith Smart. Do you really think that they would say ‘look, don’t worry about the green car, that’s all right, we’re just interested in these other cars, the car that you took to and from your home’. Anyway.
So what’s happened here, I suggest to you is, that Keith Smart when he was giving evidence about having said I mentioned it to the police and I mentioned it to Mr Argall, and mind you, remember Mr Argall gave evidence in this case. He was here. Was that put to him? Was that put to him? Mr Argall, I suggest to you that my client told you that he’d collected that green car, that green Magna. He told you after the record of interview was finished. He told you he collected it on Sunday the 15th of October. Was that put to the very person that says – the accused says ‘I think it must have been Mr Argall’. I suggest to you that that was just blatant lying.
Counsel for the applicant addressed the issue in a different way. He submitted that on 31 October, after the recorded interview had ended, his client had mentioned what had then seemed to him to be an unimportant matter - that he had used the Magna on 15 October. It had seemed unimportant to the police at the time. But later the use of the vehicle had assumed importance for the Crown case; and so had his client’s alleged concealment of its use on 15 October. As to the latter aspect, counsel accused the policeman Ryan of lying when he denied that on 31 October, after the recorded interview had ended, the applicant had revealed his use of the Magna on 15 October.
In his charge, the learned trial judge referred to the prosecutor’s argument:
… in this trial the accused was just brazing (sic) it out. [The prosecutor] particularly referred to the suggestion that he told the police after the record of interview was completed about the green car. [She] said it was very convenient that he thought that he had told Mr Argall, but noted that such a proposition had not been put to Argall by [counsel for the applicant] when Argall was in the witness box.
The judge was not asked by either party to direct the jury about the way in which it should approach the allegation of a recently invented lie.
No exception was taken by applicant’s counsel as to his Honour not having so directed, or as to the little which his Honour did say about the alleged lie.
Counsel for the applicant submitted that the issue of his client’s concealment of use of the Magna on 15 October was an issue of real importance. I agree. It is clear that the Crown was postulating that the Magna had been used to dispose of Ms Tanner’s body. The circumstance that, as the Crown alleged, the applicant had, by lying, attempted to conceal the fact that he had taken the car on 15 October, together with the circumstances in which he had taken it again on 2 November, and the work which he had done on it on 3 November, were part of the Crown’s circumstantial case.
Counsel for the applicant further submitted that he had not breached the rule in Browne v Dunn because he had put to Mr Ryan the applicant’s later evidence that he had informed the police on 31 October that he had used the Magna on 15 October. He submitted that the prosecutor had acted unfairly by putting it to his client (I use lawyer’s language) that trial counsel had breached the rule in Browne v Dunn. He argued that the policemen had interviewed the applicant together. So cross-examination of one of them had sufficiently raised the issue.
I do not agree. Apart from the contention, not reliant upon Browne v Dunn, that the applicant’s account of a post-interview revelation on 31 October that he had used the Magna on 15 October was a lie, an important aspect of the cross-examination of the applicant was that his counsel had cross-examined Ryan, but not Argall, as to the circumstances in which the former learned of the applicant’s use of the Magna on 15 October. That cross-examination, it was put to the applicant, had an obvious foundation – the inaccurate transcription of Ryan’s evidence at the committal. But when that inaccuracy had been revealed, and in the face of Ryan’s denial, the applicant had met the problem (in re-examination) by nominating Argall as the person with whom he thought he had had the relevant conversation. On proper analysis, that was the alleged recent invention.
I turn to the prosecutor’s use of the alleged invention. It was a very small part of the Crown hypothesis that the applicant had attempted to conceal his use of the Magna on 15 October, and that he had repeatedly lied in order to do so.
The applicant’s assertion in his statement of 29 October that he had been driven to and from his home by his daughter Emily on 15 October was a lie. So also was his repeated assertion in the 31 October record of interview that he had driven the Meteor on 15 October. Again, said the Crown, his evidence that he had disclosed use of the station wagon in an unrecorded conversation on 31 October was a lie. Moreover, the Crown argued, the particular evidence was recently concocted, as could be seen from the fact that the account had not been put to Mr Argall who, according to the applicant’s evidence in re-examination, he thought might have asked the question which elicited the pertinent response.
Only a fragment of the Crown case concerning the applicant’s alleged concealment of his use of the Magna on 15 October had anything to do with the rule in Browne v Dunn and with recent invention. The substantial issue with which the applicant had to deal was an attack founded on two lies – not simply an attack as to credit, but an attack which contended that the lies evidenced consciousness of guilt. All that the pertinent evidence of the applicant did was to permit an attack founded on those lies plus an alleged additional lie. The contention that the last alleged lie (which was not the subject of a consciousness of guilt argument) was also a recent invention added very little to the thrust of the attack.
In my opinion, the prosecutor’s address worked no relevant unfairness.
I turn to circumstance that the learned judge did not give a warning to the jury about Browne v Dunn reasoning. I consider that it would have been better for his Honour to have given such a warning. But, in the context which I described at [71] I do not regard the situation as one in which failure to give the warning bespeaks a miscarriage of justice. It is entirely unlikely that the jury reasoned that the applicant’s credit was impeached by reason mainly or substantially of the alleged invention, particularly having regard to its narrow focus. Further, and as I have said, the alleged invention was not relied upon as a lie told in consciousness of guilt.
The position of the carpet runner
When counsel for the applicant opened his client’s case at trial, he said this:
The Crown also addressed you on the aspect of a piece of carpet, again you will see it in the photographs, which is the type of narrow piece of carpet you would put in a hallway, sort of a Persian rug sort of thing which is very narrow, you put it in a hallway. The Crown says that happens to be over the few droplets on the carpet, a few droplets of blood on the carpet. But you remember I told you that very often there is a viable and innocent explanation for various things on this issue. It’s the defence case that very (sic) Keith Smart would put that piece of carpet where you will see it in the photograph after or before he washed, mopped down his hallway, and the reason he did it was because, one, he can’t mop his hallway if there’s a piece of carpet on it and, two, he would leave it in the loungeroom while the hallway dried and very often the defence position is very often he would forget to put it back.
JS gave evidence in the Crown case. She was shown a photograph which depicted the carpet runner in front of the couch in the living room. It was in the position where, as the Crown showed, it covered part of a bloodstain on the carpet from which DNA matching that of Ms Tanner was obtained. The runner extended towards the hallway, partially over a tiled section of the floor. There were these questions and answers –
Do you see there a carpet running in front of that couch. Is that a carpet that normally went there?---There was runners, I always had runners.
Is that the position that the runner usually had in the house?---Yes, because you walked through.
In front of the couch?---Yes.
Obviously, this evidence gave an explanation for the carpet runner being in the particular position. But it was not the explanation given in the opening by counsel for the applicant.
The prosecutor did not seek to impeach her own witness by putting to JS the account which had been opened for the applicant - and of which the Crown therefore had notice.
JS was not cross-examined to suggest that - (1) the true situation was that which had been opened on the applicant’s behalf; or (2) the true situation was that about which the applicant later gave evidence.
Had the applicant given evidence in accordance with counsel’s opening, the Crown, knowing of that account in advance of JS giving evidence, could not have made a Browne v Dunn point about the failure of applicant’s counsel to put that account to JS in cross-examination.
The applicant did give evidence about the position of the carpet runner. Shown a photograph, there followed these questions and answers:
… Do you see that long rug or that long mat type rug there?---Yes.
Where was that accustomed to be kept? Where was that normally kept?---That goes in one of three places, it either goes where it is now, down the long passageway or across the passageway to the front door.
Just point up where you say down the long passageway, what you’re talking about?---That passageway that goes down to the bedrooms.
No, so the ladies and gentlemen can see it?---That passageway there leads down to all the bedrooms. Sometimes I put it down there, sometimes I put it across to the front door.
Just show?---To the front door there down that, them tiles there, behind the TV, and sometimes it goes in here (indicating).
Was there any set pattern or rule as to where it would be?---No, no. Sometimes I had it in the passageway but I always had to move it back into the loungeroom here to mop the decks, so I could mop them, mop the floors, and then I’d just leave it there for a week or whatever until I got around to – and sometimes I’d move it, sometimes I’d leave it. When the mat was originally bought it was bought for where it is there in that picture. My wife bought that so people could come in the front door and go to the kitchen without wrecking the carpet.
That evidence did not coincide with either the opening or the evidence given by JS, although it had some connection with each of those versions.
The applicant was cross-examined about this evidence:
[Counsel] when he opened this case to the jury – remember he responded to my opening?---Yes.
And he said that that carpet runner usually was in the hallway. Do you remember him saying that?---He might have said that but he didn’t live there. I do.
So he just got that out of the blue. That wasn’t something you told him, was it?---No.
Is that what you’re saying?---No. I told him it goes in all different places.
Because [JS] when she gave evidence said that it actually went in front of the couch?---That’s where she used to keep it most of the time, that’s right, yes.
And of course that would be a very bad spot for it to be, wouldn’t it, Mr Smart, with you and your bad leg?---How do you work that?
…
That hall runner is projecting out to the tiled area, isn’t it?---Yes.
That would be a tripping hazard for you, wouldn’t it, Mr Smart?---No.
That’s not normally where the carpet runners goes, is it?---I told you, I’ve already explained it goes in three different places.
I suggest you’ve come up with that explanation after you’ve heard what [JS] has said or to accommodate what [your counsel] said?---I don’t care what you suggest. I’m just telling you what it is.
Three places?---Yes.
So that’s not a problem, that carpet runner extending out over the tiles for you?---No.
That’s not a tripping hazard?---No.
I suggest you put that carpet runner over blood droplets from Katie Tanner?---As I said, no.
Did you put that carpet runner there?---I put that there when I mopped the passageway, yes.
Did you clean up some, try and clean up some blood that was underneath it?---No, I didn’t.
Thus, each of the earlier versions – one in counsel’s opening, one in evidence, was put to him. He rejected the first and to an extent adopted the second.
The prosecutor mentioned the matter in her closing address:
He’s the one who needs to get those bloodstains out I suggest to you, and he’s the one that needs to cover them up with a hall runner, a hall runner that when [counsel] was giving his response to my opening said look that hall runner, that was something that was moved into that area whilst Keith Smart mopped the hall. So it was a hall runner. [Counsel], of course, doesn’t give evidence, but you might think that that was given, that information was given on instructions from his client. He said sometimes he just forgot to put it back. And then [JS] gave evidence about the hall runner, remember I asked her and she said that hall runner, yes, it always goes, it always goes there in front of the couch, it’s a traffic area. Maybe what she was talking about, to you, that’s days gone by. That’s where the hall runner went, according to her.
I suggest to you that having heard what [JS] was saying, perhaps in a bid to try and help him, the accused then gave evidence it goes into three spots that hall runner; it goes in front of the couch sometimes and then sometimes it goes in the hallway and then sometimes it goes across behind the television and into the hallway. It’s got three spots by the time he gives evidence. And you can see what the accused does time and time again. He is trying, when he gave evidence he was trying to take account … of everything else that he had heard and bring it all into what he said to you.
Counsel for the applicant also addressed the matter:
We’ve heard a lot about the thin rug, the rug that you’ve seen in the photographs. At one point, and I will get to it shortly, my learned friend seemed to be suggesting that in my opening I was telling you that that rug was there and it was moved at that time when Mr Smart mopped the floor. That’s not what I said, and I remind you of what I said. I’ve been misquoted. That’s not what I said.
and
Let me tell you in my opening what I said about the position of the rug. ‘It’s the defence case that very often Keith Smart would put that piece of carpet where you will see it in the photograph after or before he washed, mopped down his hallway, and the reason he did it was because, one, he can’t mop his hallway if there’s a piece of carpet on it, and two, he would leave it in the loungeroom while the hallway dried and very often, the defence position is, very often he would forget to put it back’.
Not one mention of the fact that he did it close to this weekend. All that was put to you was very often he would do it. And so get out of your minds completely I ask you the fact that I opened and said ‘oh he did it straight after this event’. Not what I said. Not what I said at all as you will just have heard.
Counsel also attacked the prosecutor’s argument - raised in cross-examination of the applicant and rejected by him - that it would have made no sense to site the runner in the position where it concealed the bloodstains because to do so would set up a tripping hazard.
In his charge, the learned trial judge identified post-offence conduct upon which the Crown relied as evidence of consciousness of guilt:
The last piece of conduct that the Crown also refer to is, going back a step, placing the carpet runner over the bloodstains that the Crown say were in the loungeroom, if you are satisfied that they were there.
Then, in his summary of the prosecutor’s closing address, his Honour said this:
She said the accused was the one who needed to cover up bloodstains with the hall runner and his suggestion in the evidence that he varies the location of where that hall runner goes is just a case of fitting in with the evidence which has been given once he has heard it.
With respect to the pertinent part of the final address of counsel for the applicant, his Honour said this:
He said photograph 56, which is the photograph showing the hall runner in part on the tiles was irrelevant, and the risk of falling over the carpet runner projecting on to the tiles was also just irrelevant.
In this instance, in my opinion, counsel for the applicant did breach the rule in Browne v Dunn, at least by not putting to JS the version which his client later gave in evidence.
It is, of course, understandable why counsel did not cross-examine about that matter; and why he did not put to JS the version which he had opened. Albeit that JS was speaking about the situation before she separated from the applicant, her version assisted him.
I consider that the prosecutor was entitled, in the circumstances which I have described, to cross-examine the applicant to suggest that his evidence was a recent invention. That is what she did. She put to him both counsel’s opening and the evidence of JS. In respect of the latter, at least, counsel’s failure to cross-examine put a Browne v Dunn complexion upon the alleged invention.
The asserted change in accounts pertained to post-offence conduct upon which the Crown relied as evidencing consciousness of guilt. The conduct was not at the forefront of the Crown’s case; but it was not inconsequential.
In the context which I have described, the prosecutor, in final address, attacked the applicant’s credit by referring to the variant accounts, and to what she contended was the applicant’s attempt in evidence to ‘take account … of everything else that he had heard’.
The response of applicant’s counsel was first to submit to the jury that his opening had been misquoted. His attempt to show that this was so seems to me to have been a signal failure.
His second response was to ignore the attack on the discrepancies to which the prosecutor had drawn attention; and to submit that the evidence given by the applicant – contrary to the tenor of the cross-examination – made good sense.
The judge recounted the closing addresses, but gave no warning about Browne v Dunn reasoning. None had been sought, and no exception was taken.
I do not consider that it was obligatory upon the learned judge, in the particular circumstances, to give such a warning. There were, as I have said, two elements to the alleged invention. There was a Browne v Dunn complexion to the matter, but it was not all-encompassing. The most obvious discrepancy was between counsel’s opening and the applicant’s evidence. Counsel for the applicant evidently realised that this was so; and he sought to say that there was no discrepancy because he had been misquoted. Had the judge given a warning which applied to this discrepancy, in the ordinary course he would have mentioned various possible explanations. But here counsel had volunteered the explanation. Had his Honour repeated it, I consider that the situation would have become worse for the applicant. It is entirely understandable that the judge did not, uninvited by applicant’s counsel, highlight an apparent problem.
Was the applicant assisted, and if so by whom, to clean the boot of the Magna?
The actions of the applicant with respect to the Magna on 2 and 3 November were relied upon by the Crown as post-offence conduct standing as evidence of consciousness of guilt.
One fragment of that conduct concerned the question whether the applicant had been assisted in this work, which was undertaken in the backyard of the witness Travis Thickens; and, if so, then by whom.
Mr Thickens was called by the Crown. There was this cross-examination:
I want to suggest to you that, and I will get to the timing eventually, but I want to suggest to you that at some stage you assisted Uncle Keith, or Keith, you assisted Keith Smart?---Yes.
In cleaning out the boot of the car that he’d been driving?---No, that’s incorrect.
You reckon you didn’t do that? Did you ever see him cleaning out the car?---No, I did not, no.
You didn’t?----No.
You see at some stage that day, I want to suggest to you, that Keith Smart in the backyard of your place put a boot mat into the car, changed over a boot mat. Do you know anything about that?---I do not.
No. And I want to suggest to you that also there was some cleaning done with what’s know as degreaser of the boot of that car. Do you know anything about that?---I do not. And that was done around about, well late afternoon, sometime late afternoon before he left?---I don’t know.
Do you know whether or not, do you agree with the possibility that he may have left much later than the 2 o’clock estimate that you’ve given us?---I agree with that.
And you say that you didn’t help him do that?---No.
The boot mat and the degreasing?---I was gone all day.
No, but when you came back?---No.
Is it possible that you did?---No.
No? Was there anyone else there at the house when you were away apart from perhaps Keith Smart?---When I was gone?
Yes?---When I woke up and left there was my friend asleep and Uncle Keith asleep.
Who was the friend?---Neil Watson.
In the course of the applicant’s evidence-in-chief there were these questions and answers:
Who cleaned the car? What part of Travis Thickens’ house was it?---In the backyard where we put it off the road.
Why did you put in the backyard?---Because if you leave it out the front you are likely to get it hit.
Why is that?---Because it is a very narrow roads and there is cars whizzing up and down, young hoons.
Is that where the boot was cleaned and where the new boot mat – when I say new boot mat?---The secondhand one.
The secondhand one went in?---Yes.
Who cleaned the boot?---I did. Well I done some of it but I think Travis’ housemate, a young fellow that lives there, give me a hand.
What about Travis, did he - - - ?---I thought Travis might have helped but he might not have, I don’t know, I can’t remember.
The applicant was cross-examined about the matter:
I suggest to you there was no blood in there after you cleaned the boot?---Well, I thought you couldn’t get blood out. I don’t know. I was trying to clean oil out, not blood.
Were you doing it on your own?---No, I had help.
You see, it was put to Travis Thickens that he helped you?---Well, I thought it was Travis but it could have been the other young fellow that who lived at the house, young Roddo.
Yeah, and so why would that cause you any confusion, Mr Smart?---I get confused very easy, haven’t you noticed?
I suggest to you that Travis Thickens did help you clean that car?---He may have. I don’t know.
You don’t have any recollection of that?---No, I just remember being out the backyard giving it a wipe out with a rag.
and
When you got back Travis thickens, was he there?---I can’t remember.
Think about it, Mr Smart, was Travis Thickens there?---I can think all I like, I can’t remember.
You see, it was put by [counsel] to Travis Thickens that he helped you clean that mat and he said no?---M’mm, I heard that - - -
Wouldn’t be because you were both cleaning blood out?---No, no.
The prosecutor dealt with the issue in her final address. Having referred to the cross-examination of Mr Thickens, she said this:
You might have thought that [counsel] on instructions from his client who gave evidence that yes I thought it was Travis Thickens that helped me. You might have thought he didn’t expect Travis Thickens to give those answers. You might have thought he expected Travis to say yeah, I helped him with the boot. It had grease on it. Remember that. And you might think that the accused man would have a clear recollection of who helped him with that boot mat because clearly someone was helping him. ‘I’m just getting the thing done now.’ He’s having someone at least help him I suggest. But Travis Thickens would have none of it. And then it’s then put by [counsel], ‘No. Was there anyone else there at the house when you were away apart from maybe Keith Smart?’ ‘When I was gone?’ ‘Yes.’ ‘When I woke up and left there, there was my friend asleep and Uncle Keith asleep.’ ‘Who was the friend?’ ‘Neil Watson.’
And then by the time the accused comes here to give evidence having heard all of that he says I thought it was Travis Thickens but it might have been his friend. It was never put to Travis Thickens that his friend Neil Watson helped with any cleaning of the boot.
I suggest to you what’s happened here is Travis Thickens has been helping out Uncle Keith, Uncle Keith knows it, but he wasn’t prepared to be talking about cleaning that boot. And I suggest to you he didn’t want to talk about that because they were cleaning blood out of that boot. They were cleaning that boot out to make sure the police didn’t find anything.
It can be seen that two arguments were being advanced. First, that the applicant’s evidence had evolved to fit the evidence given by Mr Thickens; and second, that the latter had in fact assisted the applicant, but had falsely denied it. The first of the arguments had been directly put to the applicant in cross-examination; and one aspect of the second argument had also been put to him.
Counsel for the applicant referred to Mr Thickens’ evidence in his final address:
You might think in the course of my learned friend’s final address to you, you might consider that very often because a witness didn’t suit the prosecution case you were asked not to rely on that witness. Mr Ford, don’t rely on him. Mr O’Donnell, don’t rely on him. Mr Thickens, don’t rely on him. It was suggested to you friends and family may be just trying to help out. Don’t rely on them.
and
It was suggested to you that I never put to Travis Thickens that it was his friend who helped with the boot, with the boot, the boot mat. Why would I? You heard Keith Smart tell you he always thought that it was Travis that had helped him. If he gives that instruction – you would think that people who are charged with offences give their barrister an instruction – why would he if he thinks that say ‘well, it could have been his mate’? Why would I put it to Travis Thickens? That doesn’t make any sense at all. And the learned Crown Prosecutor says to you in a stern voice ‘they were cleaning that boot out, they were cleaning that boot out to get rid of blood’. Oh were they? Were they? Blood. That’s the boot mat.
In his charge, the learned judge referred to the cross-examination of Mr Thickens this way:
The witness was clear that he did not help the accused clean the boot of the car and did not know anything about a boot mat or any degreaser. In answer to questions he did not allow for the possibility that he helped the accused with a job.
His Honour referred to the evidence-in-chief of the applicant as follows:
He said he cleaned the boot and Travis’ housemate, a young fellow, gave him a hand. He said he thought Travis might have helped him clean it too but he could not remember.
The Crown’s reliance upon actions of the applicant taken with respect to the Magna in the period 2-3 November as post-offence conduct evidencing consciousness of guilt was a matter of significance to the Crown case. The cross-examination of Thickens and the evidence given by the applicant shows that it was his case that he had been assisted with work on the boot compartment. It is plain -and counsel really conceded so much in his final address - that his instructions were that Mr Thickens had assisted him. Hence the cross-examination of that witness. But then, Mr Thickens having given the evidence which he did, the applicant opened up the possibility that he had been assisted by someone else.
In the circumstances, particularly when the Crown case was at an end and the other person – whether it was ‘Neil Watson’ or ‘young Roddo’[17] – had not been called, I see no objection to the prosecutor having cross-examined as she did; and no objection to her mentioning, in final address, the alleged invention as matter subordinate to her principal contention – that is, that Mr Thickens, contrary to his evidence, had assisted the applicant to clean blood(stains) from the boot compartment.
[17]Were they one and the same?
Counsel for the applicant, in his response, focused upon the Crown’s conduct in impeaching the evidence of a number of its witnesses, including Mr Thickens. That was a proper attack, and was remote from the issue of invention. Beyond that, counsel called in aid his cross-examination of Mr Thickens – as cross-examination upon instructions which would not have been given if his client’s imperfect recollection had been to the contrary. He was not denying that his client’s recollection, as disclosed by his evidence, had changed. But he was disputing that this change should be stigmatised as recent invention.
In respect of this change in the applicant’s position, no judicial warning was sought, none was given, and no exception was taken.
In my opinion, the circumstance that the learned judge did not give a warning did not constitute a miscarriage in the particular circumstances. Counsel grasped the nettle, admitted the change of position, and sought to explain it. He did so whilst understandably focusing his attack on the Crown’s approach to Mr Thickens’ evidence. Had a warning been sought and given, or had the learned judge simply volunteered a warning, it would have tended to elevate a subsidiary matter to an importance which was unwarranted.
General
I have concluded that in the particular circumstances neither the prosecutor or the learned judge erred in dealing with the application of the rule in Browne v Dunn in the criminal context, with particular reference to recent invention. But I should make this very clear. Nothing that I have said should be taken to water down the strong, and repeated, judicial disapproval of the indiscriminate attempted use of the rule in criminal cases; or the general principle that, where a Browne v Dunn issue does arise, the judge should give an appropriate warning.
Ground 2
The argument for the applicant was very confined. Counsel acknowledged that, consistently with requirements stated by this Court in R v Ciantar,[18] the learned judge had directed the jury that it must consider whether the alleged lies and the impugned post-offence conduct were probative of the applicant’s consciousness of guilt of the particular offence then under its consideration. His complaint was that the jury should have been specifically instructed that, when considering whether the lies and other conduct were probative of the guilt of the offence of manslaughter, one possible explanation for the alleged lies and other impugned post-offence conduct was the applicant’s recognition that he was guilty of the offence, left to the jury, of being an accessory to the murder of Ms Tanner by another.
[18](2006) 16 VR 26.
Counsel relied upon what this Court said in Ciantar at [78]. But I set out both [77] and [78]:
[77] Thirdly, as was observed in Woolley, where there are a number of charges in issue, either as separately listed counts on the presentment or as statutory or common law alternatives to the count or counts which are charged, the jury must be directed to consider the lies and post-offence conduct in the light of each charge separately.
[78] Trials which concern a one-count presentment with lesser included offences, or a multiple-count presentment or a case where the evidence adduced to prove a particular charge discloses the possible commission of other offences all raise the question of whether the post-offence conduct relates to a particular offence charged or to ‘other offences’. Accordingly, in such cases the jury may have to be alerted to the fact that, before they can treat the post-offence conduct or lies as proof of guilt of the offence they are then considering, they must be satisfied, having regard to all the evidence, that a consciousness of guilt of such ‘other offence’ does not provide a possible reasonable explanation for the lies.
The burden of those paragraphs is that, in a case where there is a one count presentment with lesser included offences, or where the evidence on a particular charge discloses the possible commission of some other offence, the jury must be directed to consider whether the lies and/or post-offence conduct relied upon is probative of the guilt of the accused of the offence then under its consideration. So that the jury will properly undertake that task, it may need to be ‘alerted’ to the need to be satisfied that the lies and/or other conduct are not explained by consciousness of guilt of some other offence. So to alert the jury would tend to emphasise the need to exclude, as a reasonable possibility, other and ‘innocent’ explanations for the lies and/or other conduct relied upon by the Crown in proof of the offence which the jury is then considering.
In this case, the learned judge gave the jury full instructions. At the outset of the trial he provided jury members with a sheet setting out the elements of the offence of murder. Later, he provided a sheet setting out the elements of unlawful and dangerous act manslaughter, and of assisting an offender. Then, before the jury retired, he provided a flow chart for its assistance in considering the offence of murder and – if it became necessary – the offences of manslaughter and assisting an offender; and sheets setting out in summary form his directions with respect to the law.
Then, in the course of his charge his Honour gave a full Edwards[19] direction with respect to lies relied upon by the Crown: (1) the applicant’s repeated assertion that the Meteor had been used (whether by his daughter or him) when travelling to and from Mr Ford’s home on 15 October – and thus, as the Crown contended, concealment of the fact that he borrowed the Magna on that day; (2) what was said to be a lie told to JS as to his reason for borrowing the Magna on 2 November.
[19]Edwards v The Queen (1993) 178 CLR 193.
In the course of his initial direction, his Honour referred to use by the jury of a statement which was a lie as indicating acceptance of responsibility ‘for the offence, whether it be for murder or one of the two alternative offences which I will describe to you later in this charge’.
A little later, describing the four matters about which the jury must be satisfied, his Honour stated, inter alia, that –
… you would need to be satisfied before you used the lie adversely to him that he told the lie because he believed that the truth would tend to show that he was responsible for the crime concerning the death of Katie Tanner and he wanted to avoid that happening.
So also, at that stage of his charge his Honour referred to the need for the jury to consider an innocent explanation for any lie told, saying ‘you simply cannot use it as evidence that he implicitly admitted responsibility for that crime’.
His Honour’s references to ‘the crime’ and ‘that crime’ were the subject of exception. There was this interchange between his Honour, counsel for the applicant, and the prosecutor:
PROSECUTOR: Your Honour, the other thing that concerned me about the aspect of lies in Your Honour’s charge was that you said on a number of occasions that he told a lie to avoid implicating himself in the crime, that is the death of Katie Tanner. What about the position where if, for example, the jury is satisfied that he told a lie not because he was trying to avoid implicating himself in the death of Katie Tanner, but to avoid implicating himself in helping someone who had killed Katie Tanner.
HIS HONOUR: Yes, then in my opinion the lie can be used for – the direction is intended to convey overall as I follow it, [prosecutor], the concept that the jury can use it if they’re satisfied that the lie was told in order to avoid implicating himself in relation to the offence that they’re considering, whether it be murder, manslaughter or accessory after the fact.
PROSECUTOR: Your Honour, with respect, from what Your Honour told them it’s my submission that they wouldn’t understand – that by hearing the words ‘the crime’, that is the death of Katie Tanner, Your Honour knows what you mean and I know what Your Honour means, but it doesn’t make it clear.
HIS HONOUR: I will clear it up in the morning. I will hear from [counsel] first but if it needs to be clarified I’m content to do it.
COUNSEL: In my submission Your Honour did deal with it because Your Honour didn’t just deal with the crime, you said or other offences, words to that effect.
HIS HONOUR: At the end of the topic is there any – it doesn’t seem to me there is any harm in saying first up in the morning to the jury in relation to lies which I was talking about yesterday they need to be lies which pertain to whichever offence you’re considering, whether it be murder, manslaughter or accessory after the fact.
COUNSEL: Yes, that’s so. … Your Honour will recall the discussion that we had at some stage today in relation to not only lies in the record of interview, the lie in the record of interview but also the conduct in the, as the Crown would allege it, deliberate omission to tell the police about the car, so there are two things tied up there, so I hear my learned friend to talk about whether that first passage in the record of interview is said to be a lie. Really Your Honour as I understand it was going to and did use in combination a deliberate omission and also a lie which is really referable to the second passage in the record of interview.
HIS HONOUR: Yes. I’m about to come to post-offence conduct which includes what is, in effect, what he says about post-offence conduct, what he says about ---
COUNSEL: So that deliberate omission is relied upon vis-à-vis the statement and then the record of interview.
HIS HONOUR: But I think [prosecutor’s] point was that I didn’t make it clear enough that the lie, the question of lies needed to relate either to the crime of murder, manslaughter or the alternative.
COUNSEL: I understand that point. In my submission Your Honour did but if Your Honour is concerned about that I have no difficulty with clarification.
The learned judge relevantly redirected the jury as follows:
Fourthly, that the accused told the lie, you need to be satisfied, because he believed he had committed the crime, whether it be murder, manslaughter or accessory after the fact, and believed he would be implicated in the crime if he in fact told the truth. There is also an issue about the standard of satisfaction you need to have in relation to that which I will come to in a moment.
I identified for you the alleged lies that the Crown relied upon yesterday, including the failure to tell the police in his statement and in his record of interview that he had used his wife’s car on 15 October, the ‘small fib’ that is referred to in his statement, and the passages at questions 407-413 and 451-455 which I read to you yesterday concerning the manner in which Mr Smart got to and from Mr Ford’s place and the vehicle that he used for that purpose.
There was one other alleged lie that the Crown rely upon which falls into this same category and has to be scrutinised by you in the same way, and it is the allegation the Crown makes that when the vehicle was borrowed by the accused on 2 November he gave an explanation to his wife, Jeanette Smart, that he needed to do some running around, and various things and, of course, it is suggested did not describe the truth of what he was doing, which was to replace the boot mat and clean up the boot.
I will come to this later, but that is, of course, in Jeanette Smart’s evidence and also referred to in the record of interview of the accused. So the Crown say that was a lie and it was told for the purpose of concealing the true purpose of needing the car, and in order for you to be satisfied about that you need to apply that very careful scrutiny to that as well as to the others.
Then his Honour turned to the other post-offence conduct upon which the Crown relied. He said this:
If I can now come to in a sense a related topic, and what is described as ‘post offence conduct’ as opposed to the allegation of telling lies. Apart from the lies which the Crown say were told by the accused in this case, as you might remember, [the prosecutor] has also relied on a number of aspects of the conduct of the accused after 14 October 2006, which, similarly she has said to you, represent, in effect, an implied admission of guilt by the accused.
This post-offence conduct or, if you like, post-14 October conduct, is also material which you might take into account in relation not only to the charge of murder, but the two alternatives.
The first thing the Crown rely on is that on Monday, 16 October 2006 when Sandra Smart and her husband David Smart went to the premises of the accused they observed that he was washing the bed linen from Katie Tanner’s room which had been stripped. You remember the evidence which [applicant’s counsel] has referred to a number of times about David Smart having the conversation and inquiring in rather unpleasantly colourful terms about why the accused was doing the washing.
The next thing the Crown rely on is that soon after the accused was released from the Homicide Squad on 2 November consistent with what I have just put to you about what he said to his wife, he borrowed the Mitsubishi saying he needed to go and see a solicitor and do some running around, and as you have heard he contacted Wayne O’Donnell and made arrangements to obtain a boot mat for the vehicle. The Crown say this was done, as the Crown put it, covertly. He later drove the car to Travis Thickens’ house, parked it in the backyard out of sight and the Crown say that he used the degreaser to clean the boot of the car, replace the boot mat and return the vehicle to her. The last piece of conduct that the Crown also refer to is, going back a step, placing the carpet runner over the bloodstains that the Crown say were in the loungeroom, if you are satisfied that they were there.
You can see each of those is a piece of conduct which the Crown rely on as, in effect, conduct seeking to conceal the commission of a crime.
I need to give you also a direction in relation to how this evidence can be used, which is very similar to the direction I gave you in relation to the allegation of lies. Evidence of acts performed after a crime has been committed are capable of being used as unspoken or implied admissions by an accused person that they are responsible for a particular crime.
You may be able to use the evidence in this way if you conclude that the accused did perform the particular act after the crime was committed, and you come to the conclusion that the only reasonable explanation for him doing these things was that he had committed the crime, whether it be murder, manslaughter or accessory after the fact, and that he believed that unless he acted in the way that he did he would be implicated in the crime.
So by doing the things that it is alleged he has done, he has effectively admitted responsibility for the crime.
Again, with this evidence, you need to be extremely careful in the way that you use it and the way you scrutinise it. It is very important that you understand that there are similarly four requirements that need to be applied by you to such evidence before you can use it for the purpose for which the Crown say it can be used.
and this:
The fourth thing is that you must be satisfied that the accused acted in the way that he did because he believed that he had committed the crime of murder, or one of the two alternative charges, and that he would be implicated in that crime if he did not do the things that he did. In considering this requirement you need to keep firmly in mind that people borrow cars, maintain cars, wash laundry, for all sorts of valid and, frankly, mundane reasons. So you need to bear in mind firmly that that is a consideration that you nee to think about.
You will recall, for example, in this case there is evidence about Emily Smart having spilt oil in the boot of the car and it is put that that explains the reason why the boot was being cleaned with degreaser and the boot mat being replaced.
This last requirement that the accused acted in the way that he did because he believed he had committed the crime, will only be met if you are satisfied that there is no explanation for his conduct that is reasonably open on the facts other than he believed he had committed the crime and that unless he acted in the way that he did he would be implicated in it. If it is reasonably possible that the accused acted for some other reason, you cannot use his conduct as evidence that he had implicitly admitted responsibility for his crime.
There was no exception to this re-direction, which repeatedly stressed the necessary relationship between the alleged lies and other post-offence conduct and the particular offence which the jury was considering.
The fact that the jury might need to consider these matters in the context of proof of different offences was emphasised when the learned judge directed it as to the circumstances in which it might become necessary for it to consider, in sequence, the offences of manslaughter and assist an offender, and as to the elements of those offences.
In my opinion, the narrow criticism of the learned judge’s directions raised by ground 2 should not be accepted. The way in which his Honour charged the jury, carefully describing the elements of the offences, making it clear the offences must be considered in sequence (the jury only coming to consider a lesser offence if not satisfied of the applicant’s guilt on a greater offence) combined with his directions that whether the alleged lies and other impugned post-offence conduct stood as implied admissions of guilt must be considered by reference to the offence then being considered by the jury left no doubt, as I see it, that the jury might fail to take into account the prospect that the implied admissions related not to the offence then under consideration but to some other, and lesser, offence. The judge redirected to make it even clearer than he had done initially that the alleged lies and other post-offence conduct, to be probative, had to be probative of the offence which the jury was considering, and not otherwise explicable. Counsel took no exception to the re-direction, which is some indication that, alive to the dynamics of the trial, he saw no problem with what the judge had said.
Finally, I set out above the gist of the additional direction which counsel submitted the judge needed to give. But counsel really advanced no reason why, in the particular case, the judge must have added to what he said. It could not simply be because the applicant faced the prospect of a finding of guilt on an alternative and lesser count. Ciantar[20] does not stand for the proposition that in every such case there needs to be ‘the alert’ of which that paragraph speaks.
[20](2006) 16 VR 26, [78].
Other than that, counsel suggested that the learned judge had misunderstood the import of the exception, which had really been directed to the point now raised. But trial counsel’s reaction to the re-direction does not suggest that this was so.
All in all, even if it was accounted desirable that the learned judge had added the gloss for which counsel contended, there is a difference between what is desirable and what is mandated.
Ground 3
Counsel for the applicant argued ground 3 on a confined basis. He contended that the jury should have had a reasonable doubt that the applicant had been the killer.[21] The evidence, counsel submitted, left open the reasonable hypothesis that the applicant had assisted another offender after the killing had been done. As I have already noted, he as good as submitted that the killer whom the applicant had assisted had been DS.
[21]He specifically conceded that findings (1) that Ms Tanner had been killed and (2) that, if the killer was his client, then the circumstances entitled a verdict of manslaughter, would not be unsafe and unsatisfactory.
Counsel submitted that a number of circumstances told against the applicant having been the killer. He referred to - (1) absence of motive; (2) evidence of a ‘positive relationship between the applicant and Ms Tanner’; (3) absence of any hint of an argument between them on the Saturday night of her presumed killing; (4) evidence of the applicant’s prior good character; (5) evidence that the applicant was not a violent man.
Counsel contrasted the circumstances which I have just mentioned with - (1) the evidence of bad relations between Ms Tanner and DS, SW and JS; (2) evidence of threats by DS to kill Ms Tanner; (3) evidence given by Eireen Allen as to an altercation between a man and a woman outside the applicant’s house on the night of the presumed killing; (4) evidence of Ms Allen of an altercation several weeks earlier – involving, she said, the same man; (5) a qualified admission by DS that he had been involved in an altercation with Ms Tanner outside the applicant’s home several weeks before her presumed killing (this enabling an inference, counsel submitted, that DS had been arguing with Ms Tanner outside the applicant’s home on the night of 14-15 October); (6) what was said to have been an unexplained visit by DS to the applicant’s home on the morning of 15 October 2006; (7) what were said to be discrepancies in the evidence of DS and SW as to the times at which they did particular things on 15 October, and a false explanation for why they had not rung Ms Tanner in advance of attending at the applicant’s home that day; (8) the failure of DS to attempt to contact Ms Tanner after 15 October; (9) a changeable account given by JS as to the time at which her son DS attended at the applicant’s home on 15 October.
Counsel then dealt with what he described as ‘the united force of the circumstantial evidence’ relied upon by the Crown. He submitted, focusing upon each item of evidence discretely, that in every instance an explanation was available which was consistent with the applicant not having been Ms Tanner’s killer. He particularly analysed: (1) the circumstances in which the applicant took the Magna on 15 October; (2) what he submitted was the want of any urgency on the applicant’s part about getting a new boot mat for that vehicle; (3) the conduct of the applicant in cleaning the boot; (4) evidence as to the positioning of a carpet runner in front of the couch; (5) the finding of the mallet and other items in the bin on 31 October; (6) the applicant’s conduct in washing the sheets from Ms Tanner’s bed earlier in the week than was usual; (7) what he contended was the ambiguous presence of Ms Tanner’s blood on the head of the mallet and the applicant’s DNA on its handle.
Counsel further submitted that it was significant that the judge had given a Prasad[22] invitation to the jury. This demonstrated his Honour’s opinion, at the end of the Crown case, that the evidence of the applicant having murdered Ms Tanner was weak.[23] Counsel submitted that the fact that thereafter the applicant had given evidence did not alter the situation. Even if the jury had disbelieved the applicant’s evidence, there remained a reasonable hypothesis that the applicant had assisted the murderer; and so the jury should have had a reasonable doubt that the applicant had been the killer.
[22]R v Prasad (1979) 23SASR 161.
[23]The invitation, quite specifically, addressed the count of murder only.
In my opinion, this ground should be rejected. The question is whether the jury ought to have had[24] a reasonable doubt that the applicant had been the killer. It is not enough that a jury might have had a reasonable doubt. The question is to be resolved on a consideration of all the evidence which the jury was entitled to find proved, not by deconstructing the evidence and by examining each piece of it so as to show that it might admit a relevantly innocent explanation. It is trite that strands in the cable of a circumstantial evidence case may, in combination, gain a strength which they do not individually possess.
[24]Or ‘must’ have had. See the discussion of relevant authorities by Maxwell P in R v Klamo (2008) 18 VR 644, 653-654 [38]-[40]. See also R v Withers [2009] VSCA 306, [46]-[49] (Buchanan, Ashley and Weinberg JJA).
In the present case, the evidence consisted in part of evidence given viva voce by the applicant and by the other candidate (or candidates, if SW and JS were included) as the killer. The jury had an opportunity of assessing the reliability and credibility of each of those witnesses. It was near enough put to DS that he was the killer. In light of the attack upon him in cross-examination, and as well evidence adduced from other witnesses, the jury could not have failed to understand that DS was the real alternative candidate. The jury’s verdict shows that, having regard to all the evidence, including the evidence of the applicant, DS, SW and JS, it did not entertain a reasonable doubt as to the identity of the killer. That is not decisive, but it should not be overlooked when considering the unsafe and unsatisfactory ground.
I should next say that, not in any way gainsaying the need to consider all the evidence, a number of strands in the cable told strongly in favour of the applicant being the killer:
(1) The applicant was, on the evidence, the last person with whom Ms Tanner was in company alive.
(2) On his account, when he went to bed on the night of 14 October, she was the only other person in the house.
(3) Much evidence bespoke her having been killed in the applicant’s home on the night of 14-15 October.
(4) There was no direct evidence of any other person being in the applicant’s home during that night.
(5) Ms Tanner’s DNA[25] was found on the head of the mallet, and the DNA of both the applicant and Ms Tanner was found on its handle.
[25]I will not keep repeating what I earlier noted: that DNA identification was based on an analysis of statistical probability.
(6) DNA of Ms Tanner was found on the couch. Her DNA and that of the applicant was found in association with a bloodstain on the carpet in front of the couch where, on the applicant’s account, he had last seen her sitting.
(7) Even if evidence that there had been an attempt to clean that part of the carpet was unpersuasive, it was evident that a carpet runner had been placed over the area. No evidence suggested that anyone other than the applicant had placed the carpet runner in that position. He gave an explanation in that connection which was claimed by the Crown to have been a recent invention. But even if that contention was rejected, there remained the fact of what the applicant had done.
(8) The DNA of DS[26] was not found on the mallet or at any site where the DNA of Ms Tanner was identified.
[26]Neither was the DNA of Mr Ford. Perhaps, the presence of his DNA would have been explicable if he had assisted in the removal of Ms Tanner’s body on 15 October. But even if his DNA had been present, it would have been speculative so to conclude.
Those strands interwove with many other strands relied upon by the Crown to present a convincing case that the applicant had killed Ms Tanner. So to say is not to deny that those other strands, if considered discretely, could have evidenced the offence of assisting an offender.
In concluding that the evidence left it reasonably open to the jury to be satisfied beyond reasonable doubt that the applicant had killed Ms Tanner, and thus that the jury ought not to have had a reasonable doubt about that matter, I have not ignored discrepancies in, and unsatisfactory aspects of, the evidence of DS, his mother and SW. Neither have I ignored the evidence of bad blood between them and Ms Tanner. Neither again have I ignored evidence given by the witness O’Donell that the applicant had displayed no sense of urgency when seeking to acquire a new boot mat, and the evidence of the witness Thickens that he asked the applicant to put the Magna in his backyard, rather than leave it in the street, when replacing the mat. Further still, I have not ignored the strangeness of the mallet and items belonging to Ms Tanner being found in the applicant’s garbage bin on 31 October, when the killing must be taken to have occurred on the night of 14-15 October, when the body had been disposed of, inferentially, by the time that Mr Tanner looked through the applicant’s home on 16 October, and when the bin had been emptied at least on 19 October, and presumably on 26 October. I add that the matter last-mentioned, if considered alone, might suggest that the applicant had not offended at all, but had been set up. But this was not the way in which counsel for the applicant relied upon it.
The matters just-mentioned might have led the jury, on a consideration of all the evidence, not to be satisfied that the applicant killed Ms Tanner. But, in my opinion, it rises no higher than that. The Prasad invitation, offered and not taken up, does not dictate a different conclusion.
Sentence
I have earlier set out the sole ground relied upon. It is a ground which alleges specific error – that is, mischaracterisation of the offence by the learned judge as a serious example of unlawful and dangerous act manslaughter. Counsel rightly conceded that a ground of manifest excess would have proved at least extremely difficult to make good.
Counsel submitted that the mischaracterisation was revealed by the following passages in his Honour’s sentencing remarks:
7The verdict of the jury demonstrates that they concluded beyond reasonable doubt that some time after you and Ms Tanner returned to your premises on that evening, you killed Ms Tanner using a rubber mallet. As the Crown has submitted, on that verdict this killing occurred without motive and premeditation. The Crown submits that you should be sentenced on the basis that you had a sudden and violent loss of self-control, leading you to attack her and cause her death.
…
15The jury verdict indicates they were satisfied beyond reasonable doubt that for whatever reason you applied such force to Ms Tanner as to cause her death either immediately or very shortly after the attack commenced. On any view of the evidence, she was unarmed when you killed her. The Crown rely on the conclusion which flows from the verdict that you consciously, voluntarily and deliberately caused her death although you did so, as the jury clearly have concluded, without murderous intent.
16The evidence does not reveal a motive or a reason why you have committed the crime of manslaughter. There is nothing to indicate that you were subjected to any form of provocation and the history of the relationship between yourself and Ms Tanner makes this incident almost inexplicable. The deliberateness and violence of the attack that you have launched against her does, however, place this offence of manslaughter in a very serious category. The offence, however, was not premeditated and the death of Ms Tanner was not something which you intended.
Counsel submitted that the learned judge would have erred had he sentenced the applicant other than on the basis that - (1) he had killed Ms Tanner without motive or premeditation, following a sudden and violent loss of self-control; and (2) the violence, though sufficient to kill Ms Tanner, had not been by repeated bludgeoning. He argued that, by stating that ‘the deliberateness and violence of the attack’ placed this offence ‘in a very serious category’, the judge had revealed that he had sentenced the applicant otherwise than in accordance with (1) and (2). He argued that the error was disclosed by the sentence which the learned judge in fact imposed - contending, in effect, that the sentence bespoke a conclusion by the judge that Ms Tanner had been repeatedly struck.
I agree with counsel’s submission that his Honour should not have sentenced the applicant other than in accordance with the circumstances set out in (1) and (2) of the preceding paragraph. As to the second of them, I agree with counsel’s contention that the relative absence of evidence of blood in the applicant’s premises tended against a conclusion that Ms Tanner had been repeatedly bludgeoned with the mallet.
For the following reasons I do not accept, however, counsel’s submission that the judge sentenced on a more adverse factual basis.
First, in my opinion the sentence did not reveal any such thing. By no means did it reflect the greatest sentence which may permissibly be imposed for unlawful and dangerous act manslaughter. Rather, having account of all the circumstances which his Honour had to consider, including matters which unarguably went to aggravate the offence, and matters which went in mitigation, the sentence was unsurprising.
Second, his Honour noted, without any comment suggesting that he did not accept it, the Crown’s submission that the applicant should be sentenced on the basis of a sudden and violent loss of self control, absent premeditation. That bore upon the extent of the deliberateness of the conduct which the verdict of guilty of manslaughter necessarily implied.
Third, his Honour referred on several occasions to the small amounts of blood(stains) found at the premises and on the mallet. It would be inconsistent with this to hypothesize that he then sentenced the applicant on the basis that Ms Tanner had been repeatedly bludgeoned to death. Note also that the prosecutor went no further on the plea than to refer to ‘the act or acts of bludgeoning (Ms Tanner) with the mallet’ (my emphasis).
Fourth, his Honour referred on several occasions to this having been, so far as the evidence showed, an attack upon an unarmed and defenceless young woman. In his conclusion, he stated that ‘the jury found beyond reasonable doubt that you took the life of a defenceless young woman for which you bear a high degree of culpability and responsibility’. Earlier, he had stated that ‘on any view of the evidence, she was unarmed when you killed her’. Paragraph [15] of his Honour’s sentencing remarks, upon which counsel relied, is headed ‘culpability and degree of responsibility’. To my mind, his Honour interrelated the quality of the attack with the fact of it having been inflicted upon a defenceless young woman in the presumed safety of her home.
Fifth, in the course of the plea, the learned judge referred to the wide range of circumstances which can give rise to the crime of manslaughter. He observed that - ‘It seems to me, bearing in mind the jury’s verdict, that this is a particularly serious example of the crime of manslaughter.’ Counsel, who was in a difficult position because his client denied committing the offence, said only that -‘Yes. I can understand why your Honour would say that’.[27] The context in which his Honour made the remark showed that he was trying to place the particular circumstances in the spectrum of worst to least worst cases – not that he was acting upon the footing that a multiplicity of blows had been inflicted upon Ms Tanner.
[27]Thereafter, he submitted that ‘… there is so much that your Honour can’t know’. The judge agreed.
In the event, I reject the contention that the judge’s sentencing remarks reveal specific error.
Conclusion
I would refuse the applications for leave to appeal against conviction and sentence.
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