R v Thomas

[1994] QCA 109

IN THE COURT OF APPEAL [1994] QCA 109

SUPREME COURT OF QUEENSLAND

C.A. No. 319 of 1993 C.A. No. 320 of 1993

Before Fitzgerald P.
Pincus JA.
White J.

[R. v. Thomas]

BETWEEN:

T H E Q U E E N

v.

RONALD HENRY THOMAS

Appellant

Fitzgerald P.
Pincus JA.

White J.

Judgment delivered 05/05/94

Joint Judgment of The President and White J.. Separate concurring reasons of Pincus JA.

Order that:
1.Appeal against conviction dismissed.

2.Application for leave to appeal against sentence granted with

respect to pre-sentence custody.

3.Written submissions to be provided within seven days giving details of time held in pre-sentence custody and the appropriate form of orders to be made.

CATCHWORDS: DIRECTIONS OF JURY - Murder - appellant and another

man broke into a unit and killed two occupants - appellant provided alternative explanation for his presence in the unit - circumstantial evidence - need for clear directions - not to dissect prosecution into individual parts but to look at the whole - whether verdict unsafe and unsatisfactory.

Counsel:Mr P. Ridgway for the respondent

Appellant conducted his own case

Solicitors:Director of Prosecutions for the respondent

Appellant conducted his own case

Hearing Date:07/02/94

JOINT REASONS FOR JUDGMENT - THE PRESIDENT AND WHITE J.

Judgment delivered 05/05/94

The appellant has appealed against his convictions for two murders which occurred on 23 December 1991. Following his conviction on 20 August 1993, the appellant was sentenced to life imprisonment, and he has also applied for leave to appeal against the sentences.

One of the victims, Wade, lived in a unit on the top level of a block of units at 37 Whelan Street, Surfers Paradise and, on the night of the murders, a female friend, Ambrose, was staying there with him. Both were shot with a .22 pistol shortly after midnight. Wade was shot once in the shoulder from the front, once in the back from behind and once in the left temple from close range. Ambrose was shot in the face from close range. The appellant was in the unit when Wade and Ambrose were shot, and was also shot in the face by the same pistol. The bullet broke some of his teeth and caused other injuries to his mouth and jaw.

The fundamental issue for the jury concerned the role played by the appellant. On his evidence, he was a guest in Wade's unit who was disturbed and shot by intruders. According to the prosecution case, the appellant entered the unit with a companion who shot Wade and Ambrose and (accidently) the appellant.

After the shootings, the appellant and another man left the unit together. According to the appellant, two men had broken into the unit through the ceiling and the front door. He said that the first person, who came through the ceiling, shot him. The second person, who was also armed, recognised him and vouched for his reliability. The first man ran off and the appellant and the second man, who identified himself to the appellant, left together. The appellant refused to disclose the second man's identity, saying in effect that it would be contrary to his "code" to do so. The appellant has spent most of his adult life in prison following convictions for murder when in his late teens and later for other offences.

Fingerprints and a palmprint of the appellant were found on a railing of a ground floor unit in the building, which had a security door at its entrance. Window gauze in the ground floor unit had been cut and objects moved in the unit. The prosecution invited the jury to infer that the appellant had gained entry into the building through the ground floor unit prior to the murders and had let a companion in through the security door. The appellant's explanation was that, after he and the second killer had left the building but were still in its grounds, they heard someone coming and climbed over the railing onto the balcony of the ground floor unit. There were no fingerprints of the appellant's companion or bloodstains found in or about the ground floor unit. Bloodstains consistent with the blood of the appellant were found in the unit where the murders were committed, outside the door to the unit and on the door handle and on stairs and a path leading out of the building.

A female occupant of a unit on the level below the unit where the murders were committed was woken by the noise and saw two men with their heads covered leave the building through the security door and exit quickly from the grounds. She said that both were wearing shorts.

A male person who was walking along Whelan Street saw two men running across the footpath in front of the vehicular driveway to the unit building. Each appeared to be holding something to his stomach.

Another man and a woman walking along Whelan Street saw two men run and then walk into another building in Whelan Street and get into a car parked there. Both described the two men as wearing long trousers or jeans, not shorts. The male witness said that one of the men had a beard and the other did not. The female witness said each man was holding something to his stomach

and had some rag or cloth flapping about his shoulders. One was clean-shaven and one had either a beard or a stocking over his lower face. In cross-examination, she confirmed that she had earlier identified one of the men as the appellant, who she said had a red cloth held to his mouth.

The car which the appellant and his companion were seen getting into was identified as a vehicle which the appellant had purchased in Sydney about ten days prior to the murders. The car was recovered the following day from a car-park at Tugun and was found to have bloodstains in it which were consistent with the blood having come from the appellant. The appellant said that the man with whom he left the unit building asked him if he had a car, he replied in the affirmative and, after they left the unit and reached the car, both got in and drove off with the other man driving.

According to the appellant, the vehicle was driven to near a telephone box off the highway near Cooloongatta Airport, where the other man made a telephone call and told him that someone was coming to look after him. About 15 minutes later another car pulled up, driven by a female person who was then a stranger to him but whom he later came to know. The woman, whom he would not name, drove him to her home, where he was looked after for a period. Subsequently, he was driven to Sydney, where he stayed with a friend of his mother's until he saw his photograph in a newspaper after which he surrendered to the police.

The appellant denied that his companion was a man called John Bobak or that he was taken to the residence where Bobak lived with a woman, Ms. Teasdale. Teasdale gave evidence to the contrary.

She said that she was woken by Bobak at about 2.00 a.m. and asked to tend to the appellant who had an injury to his mouth. She had experience as a dental nurse, and was able to give some assistance to the appellant, who had a hole in the right side of his jaw, with teeth and a part of his tongue missing. Telephone records were consistent with her evidence that she made a call at the appellant's request at about 3.00 a.m. and a call to his mother at about 7.00 a.m.. She said that, about an hour after that call, the appellant's mother arrived and the appellant left with her.

About 2 months later, a box containing the .22 pistol which had been used to shoot Wade and Ambrose, a .357 pistol and a quantity of ammunition was found in a creek bank approximately 2 kilometres from the residence shared by Bobak and Teasdale.

The appellant initially represented himself on the hearing of the appeal after he was refused on adjournment. The appeal had originally been listed for 3 November last year, but was delisted at the appellant's request to allow him more time to prepare. A February date was allotted at his request. When the appeal was called on for hearing, the appellant sought to present the Court with a fait accompli, saying that his mother had recently engaged a Sydney solicitor on his behalf and that he had sent his copy of the appeal record to the solicitor, whose name he could not recall. The appellant was provided with a further copy of the record and the matter was stood down for a period while other matters proceeded. This appeal was then heard when the Court's other business for the day had been disposed of. Later, the Court received and considered written submissions from the solicitors for the appellant and a written reply by the prosecution.

It is convenient to deal with the points raised on behalf
of the appellant in the order adopted in the written
submissions.
1. It was argued that a redirection sought at the trial by
counsel for the appellant should have been given and that, in
the absence of such a redirection or a "model direction"
proffered by the solicitors for the appellant, "there exists the
possibility that the jury may not have fully understood the
directions actually given and thereby reached their decision

upon incorrect principles concerning the burden of proof ... ."

The passage in the transcript in which the redirection was
sought at the trial by counsel for the appellant is in the
following terms:
"If in relation to the evidence there are several reasonable

inferences open, some unfavourable to the accused and some - or one favourable to the accused, then the onus and standard of proof required requires them to draw that inference or those inferences favourable to the accused in preference to those unfavourable to the accused."

The "model direction", which the appellant's solicitors

contended should be used in all cases, is as follows:
"If there is another conclusion which is reasonably open when

you examine the whole of the evidence and which would mean that the accused is innocent or may be innocent, it is your duty to acquit him even though the conclusion that the accused is guilty appears to be an even more probable conclusion."

The appellant acknowledged the trial judge had "several times in his summing up given the jury what in many States is regarded as a satisfactory direction when the evidence is solely circumstantial." It is sufficient to extract one passage from the summing up. His Honour said:

"... first I must tell you that in considering the circumstantial evidence you must remember that to enable you to bring in a verdict of guilty based on circumstantial evidence alone, it is necessary, not only that guilt should be a rational inference, but that it must be the only rational inference that the circumstances would enable you to draw and that if there was any reasonable hypothesis consistent with innocence, it is your duty to acquit."

There seemed to be two aspects to the appellant's arguments; one being that the word "hypothesis" used by the trial judge might not have been known to and understood by the jurors, and the other apparently depending on the proposition that, in the absence of the redirection sought or the "model direction", it would not have been "... plain to the jury that if there was a possibility that, for example, Ms. Teasdale was pressured by police to inculpate the Appellant and her, by then, ex-defacto, ... or she had some private reason to hurt her ex- defacto, then that possibility should lead to a reasonable doubt as to the accuracy of her evidence and a 'conclusion' or 'inference' that the Appellant's evidence may be the truth."

The first of these points is based on a comment made by Hunt C.J. at C.L. in R v. Walters (1993) 62A. Crim. A. 16 at p.20. That comment cannot be erected, and we consider was not intended to be erected, into a principle that a summing up is materially deficient if the word "hypothesis" is used.

The second point is grounded upon the erroneous premise that the veracity of Ms. Teasdale's evidence fell for separate consideration and the prosecution of the appellant could only succeed if the jury was satisfied of the truth and accuracy of her evidence beyond reasonable doubt. This is correct neither in logic nor in principle: Sheppard v. R. (1990)170 CLR 573.

2. The second ground of appeal related to directions given (or not given) by the trial judge in relation to Bobak.

It was submitted that his Honour erred in his directions
to the jury by not explaining to them that, if they were in
doubt that Bobak was in the unit or was the person with the
appellant when they drove off in the appellant's vehicle:
(a) they should acquit the appellant; or

(b)they should disregard the evidence of the finding of the

pistols as it would have no relevance whatsoever to

the guilt of the accused; or

(c)they should scrutinise the evidence of Ms. Teasdale with very

great care.

Apart from one brief passage which it is unnecessary to
record, the trial judge dealt with Bobak's involvement in two
places to which attention has been drawn by the appellant. His
Honour said:
"... You would ... have to be satisfied beyond a reasonable

doubt, on the whole of the evidence, that the accused and another broke into the unit ... before you could use that fact to infer that the accused and Bobak were parties to the murder of Wade and Ambrose.

... I should mention that although Bobak's name has been mentioned many times in the course of this trial, Bobak himself is not on trial. We are not concerned with the question as to whether he was guilty of the murder or not in the sense that anything we decide here will determine the matter if Bobak ever goes on trial. We are concerned with the question of the guilt or not as to whether you are satisfied beyond a reasonable doubt of the guilt of the accused; that is the question, but the Crown is saying that another person was involved in the killings and that that person was Mr. Bobak.

You will recall, members of the jury, that the Crown opened the case as being one where two men were involved in the murders and it claimed that the accused was one of them. The investigation of the offences was conducted on the basis that only two persons were involved in the murders, namely, Thomas and Bobak, and the Crown presented evidence to you which was designed to lead you to conclude that Thomas and Bobak, on the night of 22 and 23 December 1991, were seen by Mr Hughes, Mrs Renton, Mr Nierop, Mr Webb and Miss Dark. As you will recall, counsel for the accused has submitted to you, after a detailed analysis of the evidence, that it is highly unlikely that those witnesses saw the same two people. I will refer to those submissions later, but I tell you now, ladies and gentlemen, that the Crown must prove to your satisfaction beyond a reasonable doubt that the accused and another person were associated in the commission of the murder. It does not have to prove as a matter of law that they were the only persons who were

associated with the murders, but the Crown has presented the matter throughout as being one in which Bobak and the accused came, on 22 December 1991, to Whelan Street where it alleges that those two people were involved in the murder of Wade and Ambrose."

Later he said:

"... I told you earlier that the Crown must establish in this case that the accused - and establish beyond a reasonable doubt - that the accused and another, identified by the Crown as Bobak, broke into Wade's unit without his permission during the night of 22/23 December 1991 and that they had in their possession a pistol, that is, the weapon which was used to kill Wade and Ambrose."

The foundation for the appellant's argument on this ground lay in the proposition that his Honour's directions to the jury "could have caused them to believe that they did not have to be satisfied beyond a reasonable doubt that Bobak was in the unit and could find the [appellant] guilty if they were in doubt about who was with the [appellant]". A number of submissions were built on this foundation, but these need not be discussed in detail since the basic proposition is incorrect. His Honour told the jury quite correctly, and without any risk of confusion, that Bobak was not on trial in the sense that the jury could not return a verdict of guilt or innocence on Bobak. He also clearly told the jury that they needed to be satisfied beyond reasonable doubt of the Crown case that the appellant and Bobak were the murderers. This is further emphasised in the passage from the summing up upon which the appellant based his third complaint.

3. The third ground of appeal concerned the following
direction to the jury by the trial judge:
"... in order to establish that the two persons who broke into

the unit were Bobak and Thomas the Crown has adduced evidence that the deceased were killed by projectiles fired from the Ruger pistol which was found in the vicinity of Bobak's house, together with a Colt revolver which it claims was used to fire at the door of unit 34 and which was also found in the same place. It submits you will be satisfied that the Ruger pistol found in the creek was used to kill Wade and Ambrose. If you are not so satisfied, you would ignore the evidence as to the place where the weapons were found, but even if you were so satisfied, you could not, of course, conclude simply from the evidence that the guns were found 1.9 kilometres from Bobak's house, that he or Thomas had them in their possession on the night of 22/23 December 1991. There was no direct evidence that either of them ever had possession of those guns and they may have been placed in the creek by some unknown person. You will recall the submission by Mr Cuthbert that even if you found that the Ruger found in the creek was the one used in the killings, you should not act upon the discovery of the ammunition box in the vicinity of Bobak's house on the basis of information from an unknown source as connecting the accused with the killings. I tell you, ladies and gentlemen, that while, as I have said, you could not conclude from the evidence that guns were found 1.9 kilometres from Bobak's house, that he or Thomas had them in their possession on the night of 22/23 December, that is a circumstance to which you may have regard, together with other circumstances which have been proved by evidence, in coming to a conclusion whether you are satisfied that Bobak and Thomas had the guns in their possession on that night.

It was argued that "His Honour erred in failing to relate his direction of law to the evidence by failing to tell the jury what the 'other circumstances which have been proved in evidence' ... were that would entitle to them to find beyond a reasonable doubt that 'Bobak and Thomas had the guns in their possession on that night'." By way of elaboration, it was submitted that ground 3 is closely related to ground 2 and reference was made to the "circularity" of the prosecution case. "The evidence of the finding of the pistols could only be used to prove that the appellant possessed one or other on the night if there was other evidence which, taken together with that other evidence, could support such a finding. ... [If his Honour had] pointed to the incriminating evidence which linked the Appellant to Bobak ... he would have to tell the jury that they could not use the evidence that the pistols were found near Bobak's place to assist them to find that Bobak was at the unit because that was the link in the chain that had to be proved first before any inference could be drawn against the Appellant using the evidence of the finding of the pistols near Bobak's place."

The error in these submissions, which is also to be found in other parts of the appellant's argument, is that there is an attempt to dissect the prosecution case into individual witnesses, incidents or other aspects of the circumstances relied on against the appellant, either to suggest a misdirection or an absence of proof to the requisite standard.

Quite correctly, the trial judge did not follow the course
urged by the appellant. His correct approach can be seen in the
passage in his summing-up which followed the extract last
quoted:
"You will recall that this is a case in which the Crown submits

that you will be satisfied beyond a reasonable doubt of the guilt of the accused from a consideration of the whole of the evidence it has produced: the parking of Thomas's car in 46 Whelan Street; the presence there of two men loitering near the car; the finding of Thomas' fingerprints on the railing outside unit 11; the damage to the flyscreen at unit 11; the hole in the roof and the door at unit 34; the finding of pieces of teeth and blood matching that of Thomas in the unit; the trail of blood from the unit to Whelan Street; the sightings of two men by Mrs Renton, Nierop, Webb and Dark; the departure of two men, one of whom was identified as Thomas, from his own car from 46 Whelan Street; and the evidence of Mrs Teasdale; and the discovery of the two guns near Bobak's residence."

4. Ground 4 is based upon a misunderstanding of a passage in the summing-up in which his Honour told the jury "There may be some reasons, and I will refer to some of the evidence later, from which you may conclude that somebody may have gone there, whoever it was, in order to murder Mr. Wade ... ." The submission assumed that the quoted statement meant that his Honour proposed to discuss evidence concerning a possible motive for Mr. Wade's murder. That is incorrect. His Honour was referring to evidence from which it might be concluded that Wade's murder was the reason why the murderers went to Wade's unit, not their motive for the murders.

It was also contended for the appellant that his Honour should have told the jury "... that absence of motive is a factor which they can take into account when assessing the evidence. He should have told them that absence of motive can be regarded ... as weakening the Crown case ... ."

Very experienced trial counsel did not ask for such a
direction, which was not required in the circumstances of the
matter, in which a motive for either murder was not a part of
the prosecution case.
5. The appellant's fifth ground of appeal asserted that the

judge had not adequately directed the jury that, if they

concluded that the appellant was lying in the evidence which he
gave, it did not necessarily follow that he was guilty. That is
incorrect, as it will be seen from the passage from the summing
up set out below. However, it is less clear that there is no
substance in the appellant's more general complaint "that the
nature of this case called for clearer directions." From the
passages in the summing up to which the Court's attention was
drawn, it seems that very little direction was given to the jury
on this topic. The question is whether or not what was said was
adequate.

The critical passage is as follows:

"In this case, members of the jury, you have heard a considerable body of evidence deduced by the Crown from which you are asked to conclude beyond a reasonable doubt that the accused was guilty of the murder of Mr Wade and Mrs Ambrose. The accused in this case has given and adduced evidence by which he puts before you a very different version from the one which the Crown says you should accept. Let me emphasise to you, members of the jury, that it would be quite wrong for you to ask yourselves whether you accept the version put forward by the Crown or the version put forward by the accused and to bring in your verdict accordingly.

The issue before you is not one as to which of two versions you think is more likely, that, indeed, follows from what I have said about the onus of proof and the standard of proof. The question or the issue before you is whether you are satisfied beyond reasonable doubt on the whole of the evidence that the accused committed the offences charged. Even if you reject the case presented on behalf of the accused, you cannot convict him of the offence charged unless you are satisfied on the whole of the evidence beyond a reasonable doubt of his guilt."

While the jury was plainly told that their rejection of the appellant's case did not mean that he was guilty, they were not told what use they could legitimately make of a conclusion that the appellant had told deliberate lies. In the circumstances of this matter, such a conclusion must have been a very real possibility.

In R. v. Edwards (1993) 117 ALR 600, the majority judgment
was delivered by Deane, Dawson and Gaudron JJ.. At pp.611-612,
their Honours said:
"There is a difference between the mere rejection of a person's

account of events and a finding that a person has lied. ... A lie is a deliberate untruth. ... . the fact that a person has lied does not of itself establish a specific contrary proposition. ...

Ordinarily, the telling of a lie will merely affect the credit of the witness who tells it. A lie told by an accused may go further and, in limited circumstances, amount to conduct which is inconsistent with innocence, and amount therefore to an implied admission of guilt. In this way the telling of a lie may constitute evidence. ... . When the telling of a lie by an accused amounts to an implied admission, the prosecution may rely upon it as independent evidence to 'convert what would otherwise have been insufficient into sufficient evidence of guilt' ... .

...

But not every lie told by an accused provides evidence probative of guilt. It is only if the accused is telling a lie because he perceives that the truth is inconsistent with his innocence that the telling of the lie may constitute evidence against him. ... in other words, in telling the lie the accused must be acting as if he were guilty. It must be a lie which an innocent person would not tell. That is why the lie must be deliberate. Telling an untruth inadvertently cannot be indicative of guilt. And the lie must relate to a material issue because the telling of it must be explicable only on the basis that the truth would implicate the accused in the offence with which he is charged. To say that the lie must spring from a realisation or consciousness of guilt is really another way of saying the same thing. It is to say that the accused must be lying because he is conscious that 'if he tells the truth, the truth will convict him'. ... .

... . Although guilt must ultimately be proved beyond all reasonable doubt, an alleged admission constituted by the telling of a lie may be considered together with the other evidence and for that purpose does not have to be proved to any particular standard of proof. It may be considered together with the other evidence which as a whole must establish guilt beyond reasonable doubt if the accused is to be convicted. ... If the lie said to constitute the admission is the only evidence against the accused or is an indispensable link in a chain of evidence necessary to prove guilt, then the lie and its character as an admission against interest must be proved beyond reasonable doubt before the jury may conclude that the accused is guilty. But ordinarily a lie will form part of the body of evidence to be considered by the jury in reaching their conclusion according to the required standard of proof. The jury do not have to conclude that the accused is guilty beyond reasonable doubt in order to accept that a lie told by him exhibits a consciousness of guilt. They may accept that evidence without applying any particular standard of proof and conclude that, when they consider it together with the other evidence, the accused is or is not guilty beyond reasonable doubt.

...

A lie can constitute an admission against interest only if it is concerned with some circumstance or event connected with the offence (ie. it relates to a material issue) and if it was told by the accused in circumstances in which the explanation for the lie is that he knew that the truth would implicate him in the offence. Thus, in any case where a lie is relied upon to prove guilt, the lie should be precisely identified, as should the circumstances and events that are said to indicate that it constitutes an admission against interest. ... and the jury should be instructed that they may take the lie into account only if they are satisfied, having regard to those circumstances and events, that it reveals a knowledge of the offence or some aspect of it ... and that it was told because the accused knew that the truth of the matter about which he lied would implicate him in the offence, or, ... because of 'a realisation of guilt and a fear of the truth'.

Moreover, the jury should be instructed that there may be reasons for the telling of a lie apart from the realisation of guilt. ... A lie may be told out of panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the offence. The jury should be told that, if they accept that a reason of that kind is the explanation for the lie, they cannot regard it as an admission. It should be recognised that there is a risk that, if the jury are invited to consider a lie told by an accused, they will reason that he lied simply because he is guilty unless they are appropriately instructed with respect to these matters. And in many cases where there appears to be a departure from the truth it may not be possible to say that a deliberate lie has been told. ..."

The directions given to the jury did not satisfy the requirements stated in those extracts from the majority judgment in Edwards. It was not pointed out to the jury that it did not follow from their rejection of the appellant's evidence that he had deliberately lied, that even deliberate lies were not necessarily evidence of guilt or that only deliberate lies with respect to material issues which the jury was satisfied were told because the truth would implicate the appellant in the offences could be used against him. Nor was there any identification of the lies by the appellant relied upon to prove guilt or of the circumstances and events which were said to make those lies available as an implied admission of guilt.

It remains to be considered whether these omission may have caused a miscarriage of justice.

No redirection was sought on this topic by the appellant's counsel at the trial. For this there appears to be very good reason. Any further direction would not have been to the appellant's advantage. Its substantive effect would have been to draw to the jury's attention that they could treat the appellant's evidence, which they must have rejected, as an implied admission of guilt. They would have also had their attention drawn to the requirements to be satisfied before they could use the appellant's evidence in that manner, but the appellant's version of events was such that the only plausible reason for its rejection was that it consisted of deliberate lies with respect to material issues because of the appellant's apprehension that the truth would implicate him in the offences. There was no scope for the jury to conclude that the appellant's evidence was untruthful or inaccurate for some reason other than deliberate lying or that there was some reason for the appellant's lies other than a realisation of guilt. The inevitable result of the appellant's evidence was to provide the prosecution with additional evidence against him unless his evidence was sufficient to raise in the minds of the jury a reasonable possibility that what he said was true.

6. The appellant's sixth ground of appeal was that the trial judge erred in his directions to the jury in that he did not explain, or adequately explain, how the relevant law might be applied to the facts.

Part of the argument put forward on behalf of the appellant in relation to this ground was wholly based on a misunderstanding of a passage in the summing up and need not be considered further.

The remaining submission was that "the major element to be proved [against the appellant] was his state of mind"; that is, "that the Appellant was present in the unit either with the intent to kill or with the intent to aid and abet the killer." ... "His Honour did not explain to the jury how it was that [the] evidence [of the persons who had seen the two men in various places in and around the unit building or in Whelan street or the carpark] could assist in establishing the necessary mental element that the Crown had to prove. Nor did he explain the possible effect, upon that element of the crime and as it related to the Appellant's case at trial, of a finding by the jury that the Crown's 'all or nothing' scenario was flawed in whole or in part."

No such suggestion was made at the trial and no expansion or elaboration was provided to this Court by or on behalf of the appellant. In particular, no attention is drawn to any passage in the summing up, other than that referred to above as the subject of a misunderstanding by the appellant, to demonstrate the supposed deficiency on the part of the trial judge. Further, like most, if not all, of the submissions on behalf of the appellant, this part of his case erroneously attempts to isolate some only of the witnesses and a part only of the prosecution evidence as referable to a particular issue, in this instance the appellant's state of mind.

We are not satisfied that the trial judge's careful summing up in this case failed to present to the jury the issues of fact which they had to determine in a logical and comprehensible manner.

Further, it is once again appropriate to emphasise that there appear to be very good reasons why Counsel who appeared for the appellant at the trial did not seek to have the trial judge further isolate the issues and direct the jury's attention in relation to the evidence applicable to each. To have done so could only have reinforced the strength of the case against the appellant.

7. The seventh ground of appeal was that his Honour failed to

give the jury adequate assistance in the process of reasoning
which he referred to as drawing inferences.

This argument included submissions that the trial judge had not given sufficient examples of drawing rational inferences from "accepted facts", a mental process not necessarily understood by "a random 12 Australians", and that he should have explained to them the meaning of the word "rational".

We propose to say no more on this than that, in the context

of this case, the submissions are entirely without substance.
8. Finally, it was argued that the verdict was unsafe and
unsatisfactory. In part, this argument depended on the
submission that "as a result of some or all of the other grounds
of appeal succeeding the verdict is unsafe." No more need be
said of this than that each of the other grounds of appeal has
been rejected.

The other part of this argument depended upon the submission "that upon the available evidence the jury ought not have convicted in that they could not have excluded as a reasonable possibility that the Appellant was not involved in the killings". By way of elaboration, reliance was placed upon the following premises:

(i)the jury should have accepted that the appellant's evidence

"was a possible version of the facts";

(ii)Ms. Teasdale's evidence "was obviously flawed to such an extent that it would be unsafe to allow the verdicts to stand"; and

(iii)the contents of a letter written by the appellant to his mother and intercepted by the police "must not have been given adequate weight by the jury".

While there were points in the appellant's favour to be made on the evidence at the trial, as his counsel no doubt did, there is nothing in any of the matters mentioned to cause any doubt upon the jury's verdict in what was a strong, and indeed compelling, prosecution case.

Most of the matters raised in the written submissions on behalf of the appellant were not covered by the notice of appeal which included a number of grounds which were not argued and a reference to additional evidence which was not pursued. In addition to the written submissions from his solicitors, the appellant made a number of points in his oral argument.

One complaint which the appellant himself made was that Teasdale was not a truthful witness, she had made a prior inconsistent statement, had been influenced by police and had not told the whole story. However, it was plainly for the jury to accept or reject Teasdale's evidence and to prefer it, if it chose, to the appellant's version of events.

The appellant also relied heavily on such differences as could be pointed to in the eyewitness accounts of men leaving the unit building and running or walking along Whelan Street and discrepancies in the points in Whelan Street selected by the various witnesses as the points where they saw the men to whom they referred. In particular, he submitted that the evidence indicated that not only he and his companion but also another two men were seen running from the building. This was said to support his evidence as to what had occurred inside the unit where the murders were committed and to be inconsistent with the prosecution theory as to what had happened, which asserted that the appellant was there with a single companion, Bobak, who had fired the fatal shots.

At the very highest, the evidence of the witnesses referred to raised for the jury the possibility that two men in shorts and two in long trousers or jeans ran from the scene after the shootings. However, there was no doubt but that the appellant was one of the men who was seen and the number of other men seen did not resolve whether the appellant had played an innocent or a guilty role within the murder unit.

There was a strong prosecution case that there were a number of men, at least two and probably that number, who ran from the unit building after the shootings. There might have been more than two, or there might have been mistakes by witnesses on matters of detail, such as items of clothing. It was not crucial to the prosecution case that that issue be resolved. One of the men was the appellant. On his evidence, which the jury must have rejected, he was entirely innocent. On other evidence, including that of Teasdale, which the jury must have accepted on crucial points, there was a compelling case that the appellant was guilty.

The other complaint made by the appellant with respect to his convictions was that the trial judge admitted into evidence a photograph and a videotape of the murder victims. It was submitted that these were highly prejudicial but irrelevant; since the appellant's defence was one of denied involvement, the jury was not concerned with the physical details of the murder scene.

It is well-established that such evidence is nonetheless admissible, but that the trial judge has a discretion not to admit it if, in the circumstance of the case, its potentially prejudicial effect outweighs its probative value. See for example, Murdoch & Murphy (1987) A Crim R.118, 126-127.

That discretion commonly falls to be exercised at a point in the trial when the nature of the defence has not clearly emerged. Nonetheless, a course which is fair to the accused is called for: see, for example, R v. Baker (1989) 3 NZLR 635, 639-640.

The appellant did not demonstrate that, in this case, the trial judge's discretion miscarried. It was not established that the evidence lacked an appropriate purpose or would have been likely to prejudice the jury against the appellant or distract it from the essential issue which was whether the appellant was involved or whether, as he claimed, the vicious murders evidenced by the photograph and videotape were committed without his involvement although he was present.

No other points were argued by or for the appellant and the appeal in respect of the convictions should accordingly be dismissed.

The appellant's application for leave to appeal against sentence was based upon the trial judge's refusal to proceed under section 158 or section 161 of the Penalties and Sentences Act 1992 notwithstanding that the appellant had been in custody in relation to proceedings for the murder offences and for no other reason for a substantial period prior to his trial. His Honour considered that those provisions had no material operation because of section 305 of the Criminal Code, under which imprisonment for life is mandatory for a person convicted of murder.

Sections 158 and 161 are not free from difficulty and have been criticised in this Court: see, R. v. Wishart and Jenkins (C.A. Nos. 275 and 276 of 1993, unreported judgment delivered 21/12/93). It is unnecessary to discuss again the general problems which they pose.

More specifically, section 158 is of no present significance. It has no potential operation since the sentencing judge did not order "that the term of the imprisonment [of the appellant] is to have effect on and from the day [he] was arrested."

Nor did the sentencing judge order under sub-section 161(1) that the time which the appellant was in custody was not to be taken to be imprisonment already served under the sentence. Accordingly, by that subsection, that time in custody is to be taken to be imprisonment already served under the life sentences which he imposed. There is no necessary conflict between subsection 161(1) of the Penalties and Sentences Act and section 305 of the Code. By the former provision, unless the Court otherwise orders, the sentence of imprisonment for life which the latter section makes mandatory is to start from the time when custody in relation to the offence commenced.

In this case, no submission was made for the Director of Prosecutions that such an order was appropriate. Accordingly, the Court must take the steps required by subsection 161(3) of the Penalties and Sentences Act. The Court will receive written submissions on the appropriate form of order, with the requisite details provided. These submissions should be provided within 7 days.

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 05/05/1994

I have read the joint reasons of the President and White J and agree with their Honours' conclusions, as to the appeal against conviction. With respect to all the points argued except the fifth, I find it unnecessary to write anything other than that I am substantially in agreement with their Honours'

reasons dealing with the appeal.

By the fifth point, I mean that which is identified in the

appellant's written submissions as "ground 5":
"His Honour erred in his directions to the jury in that he

failed to give them any direction concerning the use they could make of a finding that the accused had told lies".

The submissions in dealing with that point say that it was

incumbent upon the trial judge "to tell the jury that just because they think the accused is lying this does not mean that

he is guilty". It was also submitted "that the nature of this

case called for clearer directions" than those given by his Honour on the subject and reference was made to, amongst other authorities, Edwards (1993) 68 A.L.J.R. 40 at 46.

As will appear from the account of the facts of the case which is to be found in the reasons of the President and White J, the circumstances were such that unless they were explained

away the jury would almost inevitably conclude that the appellant was implicated in the murder. For example, the presence of the appellant's fingerprints and a palm print of his on a ground floor railing of the building in which the murders took place was consistent with the Crown's case that the

appellant had gained entry to the building by getting over the railing into the relevant unit (no. 11), thus circumventing the obstacle constituted by the security door; there was also evidence that a screen in that unit had been cut and things moved out of the way to facilitate access. These facts strongly suggested that the appellant had surreptitiously got into the unit block in which the murders were committed and not, as he contended, by having been let in by the orthodox route by Peter Wade, one of the victims. The appellant did not deny the

presence of the fingerprints and the palm print, but gave an

explanation, very improbable on the face of it, of their presence, which explanation was consistent with his case that he

was merely an innocent visitor to Wade's unit who happened to be present when the murders were done. Difficulties of that kind,

some of a rather daunting character, stood in the way of acceptance of the appellant's version of events on the night of the murder. As a practical matter, he had no prospect of

acquittal by any rational jury unless at least some credence was
given to his evidence.

Of course, the Crown submitted to the jury that the appellant's version given in evidence before them was a lie. That is stated by the trial judge at p. 1271 of the record, towards the end of his Honour's summing-up. There, and on the

following page, his Honour summarises the Crown's submissions

about the improbability of some aspects of the appellant's evidence. His Honour also mentions that the prosecutor "claimed the accused had adapted his story as opportunities emerged".

Edwards confirms that a lie cannot be relied on in proof of

guilt unless it is deliberate, relates to a material issue and

is told from a consciousness of guilt: 68 A.L.J.R. 40 at 48.

As to the last requirement, assuming the lie is relied on only

as evidence of guilt and not as an indispensable element in its

proof, then:
"The jury do not have to conclude that the accused is

guilty beyond reasonable doubt in order to accept that a lie told by him exhibits a consciousness of guilt. They may accept that evidence without applying any particular standard of proof and conclude that, when they consider it together with the other evidence, the accused is or is not guilty beyond reasonable doubt." (49)

By "accept that evidence" is meant "accept that a lie told by

him exhibits a consciousness of guilt".

The major judgment in Edwards, that of Deane, Dawson and Gaudron JJ, avoids the "inherent circularity" (p. 43 per Brennan J) involved in requiring that before a lie can be used as corroboration, its motive must be "realisation of guilt and a fear of the truth". The means whereby circularity is avoided is

that indicated in the passage I have quoted from the major judgment, namely that the jury does not have to apply the

standard of proof beyond reasonable doubt in determining whether

it is a consciousness of guilt which has induced the lie.

It is plain that the primary judge did not give any
indication to the jury that the appellant could be convicted on
the basis that he had told lies only if the mode of reasoning

laid down (some months after the summing-up) in Edwards was

followed; nor did his Honour expressly identify the

circumstances and events said to indicate that the lies constituted admissions against interest; nor did he instruct the jury that they might take the lies into account only if satisfied that they revealed a knowledge of the murders charged or some aspect of them; nor did his Honour say that the jury might take the lies into account only if satisfied they were told because the appellant knew that the truth of the matter

about which he lied would implicate him in the offences. (49) These and other directions mentioned in the major judgment were required to be given if the lies were being put forward in proof of guilt.

In my opinion, the mere circumstance that the prosecutor argued before the jury that the appellant's version was a lying one did not make it necessary for the judge to give the directions in Edwards, nor did his Honour's having summarised

the prosecutor's submissions on the topic in the course of his

summing-up do so. To some extent the directions would have been superfluous; if the appellant's version was not true its untruth was surely deliberate and of course the subject matter of the untruths related to material issues. But if the lies had been put forward as part of proof of the Crown case - either as

constituting admissions or as corroborative of other elements of that case - it would have been necessary to tell the jury, at least, that they could use the lies against the appellant only

if they first accepted that the lies were told out of

consciousness of guilt; once having done so, they might proceed to consider whether the lies and the other parts of the Crown

case satisfied them of the appellant's guilt. It appears that one need not determine, in the present case, whether depriving the jury of access to this rather difficult concept also deprived the appellant of a fair chance of acquittal, although

my inclination is to think that it did not; the Crown case was very strong. My reason for concluding, as I have, that the judge's failure to give directions in accordance with Edwards or

indeed in accordance with the earlier cases in that line of

authority, did not vitiate the summing-up is that it does not appear that the lies were relied on in proof of guilt. The law is not that where an accused person's evidence conflicts with

that given on behalf of the Crown, or conflicts with inferences

which the Crown contends for, and the Crown seeks to persuade the jury that the explanation of the conflict is that the accused has lied, that in itself makes the Edwards directions obligatory. The distinction between merely rejecting the appellant's version as mendacious and using the fact that the appellant has told lies as part of proof of the Crown case may in some practical contexts seem a fine one, but it nevertheless

exists.

In summary, it is my view that the directions set out in

Edwards were unnecessary because the telling of lies on the part

of the appellant was not part of the Crown's proof - neither as
implied admissions nor as corroborative evidence.

I agree with the reasons of the President and White J. concerning the application for leave to appeal against sentence and that such application should be dealt with in the way their Honours propose.

As I have said, I agree that the appeal against conviction

should be dismissed.