R v Wehlow

[2001] QCA 193

SUPREME COURT OF QUEENSLAND

CITATION:

R v Wehlow [2001] QCA 193

PARTIES:

R
v
WEHLOW, Linda Joy
(appellant)

FILE NOS:

CA No 210 of 2000
SC No 123 of 1998

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

25 May 2001

DELIVERED AT:

Brisbane

HEARING DATE:

1 March 2001

JUDGES:

McMurdo P, Williams JA, Wilson J
Separate reasons for judgment of each member of the Court, each concurring as to the order made.

ORDER:

Appeal against conviction dismissed.

CATCHWORDS:

CRIMINAL LAW – EVIDENCE – CONFESSIONS AND ADMISSIONS – lies by accused – whether trial judge gave proper direction to jury as to use to be made of lies – whether lies could be used as evidence of consciousness of guilt of murder or manslaughter – whether trial judge sufficiently particularised the lies – whether any misdirection resulted in substantial miscarriage of justice

Criminal Code (Qld), s 28(3), s 668E(1A)

Edwards v R (1993) 178 CLR 193, applied.
R v M [1995] 1 Qd R 213, considered.
R v Rice [1996] 2 VR 406, considered.
R v Woolley (1989) 42 A Crim R 418, considered.
Richens (1994) 98 Cr App R 43, considered.
Zoneff v R (2000) 200 CLR 234, applied.

COUNSEL:

A J Rafter for the appellant
P M Ridgway for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

1. McMURDO P:  I have read the reasons for judgment of Wilson J in which the relevant facts and issues are stated.

1. The sole issue at trial was whether the appellant killed the deceased with an intention to kill or do grievous bodily harm; it was not in issue that she unlawfully killed him.  The learned primary judge correctly left for the jury's consideration the effect of intoxication in ascertaining whether such intention existed.[1]

   [1]         Criminal Code, s 28(3).

1. Although the prosecutor at trial did not use the words "consciousness of guilt", he invited the jury to use the lies she told to conclude that the appellant, despite any intoxication, formed an intention to kill or do grievous bodily harm to the deceased; the 23 lies she told demonstrated a clear recollection of the killing which was inconsistent with her having been so intoxicated that she did not form the necessary intention.  This was effectively a submission that the lies could be used as evidence of guilt; the prosecutor's submission went beyond mere relevance to her credit: see Edwards v The Queen.[2]  In these circumstances, the learned primary judge correctly gave the Edwards-type direction: see Edwards and Zoneff v The Queen.[3]

   [2] (1993) 178 CLR 193, 208.

   [3] (2000) 200 CLR 234, 242.

1. I agree with Wilson J's reasons for concluding that in the circumstances of this case the judge sufficiently particularised the lies in accordance with the requirements of Edwards.[4]

   [4]         At 210-211.

1. I also agree with Wilson J that the learned primary judge's…