R v WEBB - [2013] SASC 162

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v WEBB
[2013] SASC 162
Reasons for Ruling of The Honourable Justice Vanstone
30 October 2013
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - PREJUDICIAL EVIDENCE
Accused on trial for murder - application by defence for exclusion of evidence that within a few minutes of the killing accused told police a lie as to the whereabouts of the victim - whether evidence of lie 'discreditable conduct' within the meaning of s 34P Evidence Act 1929 (SA) - whether evidence lacking in probative value due to the accused having pleaded guilty to manslaughter - whether lie equally referable to realisation of guilt of manslaughter as of murder.
Held: evidence admitted - probative value substantially outweighs prejudicial effect.
Evidence Act 1929 (SA) s 34P, referred to.
R v Heyes (2006) 12 VR 401, [2006] VSCA 86; White v The Queen (1998) 125 CCC (3d) 385, considered.

R v WEBB
[2013] SASC 162
Criminal

VANSTONE J: The accused is charged with murder of his defacto wife and has pleaded guilty to manslaughter, which plea has not been accepted in satisfaction of the charge.
The accused has filed a Rule 15 application seeking exclusion of evidence of conversations between police and himself which took place very soon after the incident giving rise to the charge and at the crime scene, which was his home. In essence, the police witnesses say that when the accused was asked where the victim was, he said that she had left the house. The prosecution alleges that this was a lie, because the accused well knew that the victim was in the bedroom, either dead or close to death.
Mr Crowe, for the accused, argues that the lie is more prejudicial than probative. He submits that, since the accused has pleaded guilty to manslaughter, any consciousness of guilt evinced by the lie is referable to the crime of manslaughter and has no probative value in terms of whether the crime committed was not manslaughter but murder.
Although prosecuting counsel has argued otherwise, I proceed on the basis that this evidence is evidence of discreditable conduct in terms of s 34P of the Evidence Act 1929. I dispense with the requirement of notice given in s 33P(4). If I am to admit the evidence its probative value must “substantially outweigh any prejudicial effect it may have”: s 34P(2)(a).
I note that s 34P covers discreditable conduct irrespective of whether that conduct constitutes an offence, but does not cover conduct constituting the offence: s 34P(1).
The question is first whether the evidence has probative value in terms of the contest in this trial and next, if it does, whether the probative value substantially outweighs any prejudicial effect.
Mr Crowe relies on an unreported Victorian decision of R v Heyes (2006) 12 VR 401, [2006] VSCA 86. In that case the appellant was convicted for murder. Evidence of a false story which he provided to police after the event was admitted and left to the jury as potentially evincing consciousness of guilt. Upon appeal it was argued that the evidence could not be used in that way since it was neutral in terms of the issue whether the appellant was guilty of murder or manslaughter. In his reasons Buchannan AJ, with whom Vincent JA agreed, made this statement [46]:
In my opinion where the issues are the commission of an offence and the commission of an included offence, the jury should be directed that they cannot reason that lies or flight support an inference that the accused committed a particular offence, but bear only on the question whether the accused was implicated in unlawful conduct.
(footnotes omitted)
However, in separate reasons in relation to this point Charles AJ took the view that the situation was more complicated. His Honour made particular reference to a Canadian Supreme Court case of White v The Queen (1998) 125 CCC (3d) 385, quoting the reasons of Major J, who delivered the judgment of the Court, at [32].
The result will always turn on the nature of the evidence in question and its relevance to the real issue in dispute. It is possible to imagine cases in which evidence of post-offence conduct could logically support a distinction between two levels of culpability for a single act, or between two offences arising from the same set of facts. By way of illustration, where the extent of the accused’s flight or concealment is out of all proportion to the level of culpability admitted, it might be found to be more consistent with the offence charged. Post-offence conduct might also be relevant in cases where the accused has admitted to committing a physical act but asserts that the act was justified in some way; in those circumstances, an act of flight or concealment might constitute some evidence from which, along with other evidence, the jury could infer that the accused was conscious that he or she had committed a culpable act and had not, for example, acted in self-defence.
Charles AJ used this passage as an illustration of the fact that post offence conduct might support a distinction between two levels of culpability for a single act, or between two offences arising from the same set of facts in at least the situations instanced by Major J. Charles AJ gave another example of like effect, opining that post offence conduct might support a distinction between two levels of culpability where the level of culpability involved in the two offences under consideration were markedly different: [9].
His Honour then quoted Major J again as follows at [27]:
As a general rule, it will be for the jury to decide, on the basis of the evidence as a whole, whether the post-offence conduct of the accused is related to the crime before them rather than to some other culpable act. It is also within the province of the jury to consider how much weight, if any, such evidence should be accorded in the final determination of guilt or innocence. For the trial judge to interfere in that process will in most cases constitute a usurpation of the jury’s exclusive fact-finding role.
I am reminded of an observation of Zelling and Wells JJ in R v Lindsay (1977) 18 SASR 103 at 122. There the question was whether the appellant’s admission of a particular allegation in the Crown case, namely that the appellant had placed his hand on the victim’s arm and held it while they were walking, could rob that evidence of the corroborative quality it would otherwise have had. It was there argued that the appellant having admitted that physical action, the evidence was neutral in the sense that it was part of the appellant’s story as well as part of the Crown case. The majority (Bray CJ dissenting) said, at 122, that the evidence, although common to both sides, could amount to corroboration because it potentially bore a different character when viewed in relation to the Crown case from that which it had in relation to the accused’s case. The judges went on to say that:
An accused person cannot, by a timely admission of facts which could otherwise amount to corroboration, deprive them of that quality by making an admission.
Of course that was said in a different context, but it tends to echo the point made by Major AJ of the Canadian Supreme Court in the second quoted passage above; that it is for the jury to determine what, if any, weight it will give to a particular item of evidence having regard to the whole of the evidence and the facts as found.
Here I consider that the suggested lie does have probative value. That probative value might have been lessened by the accused’s plea to manslaughter, but it has not been removed. A tribunal of fact could take the view that the lie indicates that the accused knew at the time it was told that the victim was dead. Otherwise, presumably, he would have been inclined to take the opportunity to secure medical or paramedical help for her. His knowledge of the fact the victim was dead might arise from the way in which she met her death. The tribunal could reason that the nature of the lie told points more to an intentional killing than to an unintentional one. It could take the view that a person who has recently murdered his domestic partner would be more likely to wish to cover his activities by preventing police from finding the body, than one who had unintentionally killed her. The fact that I am unable to say that the jury would be likely to treat the lie as indicative of murder does not mean that the jury should be deprived of that evidence. Ultimately it will be for the jury to evaluate this item of evidence alongside all the evidence in the trial, in light of appropriate directions.
In addition I consider that the lie is relevant to the credibility of the accused, which will be important if he elects to give evidence. Whether that is a matter encompassed by the word “probative” in s 34P is not something which, in the circumstances, I need decide.
I acknowledge that there is some prejudice associated with this evidence. That is so even though the evidence does not disclose an offence and even though the lie could have been told out of panic or emotional instability.
Having considered the arguments put by counsel I am satisfied that the evidence has real probative value and that its value substantially outweighs its prejudicial effect. The lie is, as I said, one which was told at a time very proximate to the event causing the victim’s death. It is all but part of the res gestae. It is intrinsically connected to the events and instructive as to the accused’s state of mind in relation to that death. It is plainly relevant and I consider it would be quite wrong to exclude it as an exercise of discretion.