R v White (Ruling no 1)
[2007] VSC 452
•7 November 2007
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1475 of 2007
| THE QUEEN |
| v |
| WALLY WHITE |
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JUDGE: | WHELAN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15-19, 22-26, 29 October 2007, 2, 5, 7-9, 12-17 November 2007 | |
DATE OF RULING: | 7 November 2007 | |
CASE MAY BE CITED AS: | R v White (Ruling No 1) | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 452 | |
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CRMIINAL LAW – Matters to be dealt within the charge - Conduct of a witness in Court not in witness box - Lies and consciousness of guilt.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr G. Horgan S.C. with Mr T. Wallwork | Office of Public Prosecutions |
| For the Defendant | Mr W. E. Stuart | Dowling McGregor Thomas |
HIS HONOUR:
On 27 October 2007 I circulated a draft charge, excluding the factual summary, in this matter. That draft was a revised version of the relevant parts of the charge which I delivered in the first trial. Save for certain specific matters since raised, to which I will refer, counsel for the defence and the prosecution have indicated that there is nothing they wish to raise in relation to that draft.
I also forwarded to counsel a further copy of reasons published in relation to my charge in the prior trial.[1] Counsel in this trial are the same as in the prior trial and had been given a copy of those reasons when they were delivered. Counsel for the defence and prosecution have indicated that in relation to the issues of manslaughter, self‑defence, acting in concert and inferences and circumstantial evidence, they continue to adopt the position which I recorded in that ruling. I have determined to proceed in the same way as I did then in relation to those matters for the reasons which I gave then. The issues dealt with in that ruling under the headings “similarity” and “comments in openings” have not arisen in this trial.
[1]R v White [2007] VSC 189W
I have now heard argument in relation to the issue of consciousness of guilt in this trial and in relation to an issue which has peculiarly arisen in this trial concerning the conduct of Mark Herbert in the courtroom. There also remain outstanding issues to be dealt with concerning accomplice/Faure warnings and corroboration. These issues cannot be dealt with until the evidence of Chhen So is concluded.
Conduct of Mark Herbert
At the end of the day on 24 October 2007 Mark Herbert said something as he passed near the accused on his way out of court. Some members of the jury thought they heard what had been said. I observed something being said but did not hear what it was. The issue was raised by me on 24 October and was raised by a question from the jury on 25 October. The steps I then took are recorded in the transcript of 25 October.
On 25 October 2007, after considering the matter, counsel indicated that their agreed joint position was that I should say to the jury that it was not appropriate at that stage that I give any directions concerning what some members of the jury may have observed or heard and that in due course I would give general directions concerning the credibility and reliability of witnesses. Counsel for the defence indicated then that he would not address on it specifically. As the matter had been raised by the jury themselves, I told counsel that I might decide that I needed to say something specific about it later.
Counsel for the defence, Mr Stuart, has now submitted that I should say something specific about the matter in the charge. He has submitted that I should direct the jury in general terms about assessing witnesses in accordance with the charge already circulated and to then say that they can rely on all of Herbert’s conduct which they observed in the court, both in and out of the witness box.
Counsel for the prosecution, Mr Horgan SC and Mr Wallwork, submitted that I should not specifically refer to the incident. They pointed out that the standard charge these days emphasises that demeanour is an unreliable guide to credibility.
A decision‑maker sitting in the courtroom is not blind to the events which occur and is entitled to take them into account provided that the parties have a fair opportunity of dealing with them.[2]
[2]Mehmet Ucar v Nylex Industrial Products Pty Ltd [2007] VSCA 181.
As this was a matter raised by the jury themselves, I have determined that I should say something about it. I will direct the jury in the standard terms which I have already circulated, but I will tell them that they are not required to be blind to conduct inside the courtroom but not in the witness box and that they can take it into account. I will also say, as my draft charge already says, that care needs to be taken before assessing credibility on the basis of demeanour.
Consciousness of guilt
The Crown has, in accordance with the procedure set out in R v Ciantar (“Ciantar”) [3], identified six alleged lies upon which the Crown wishes to rely as evidence of consciousness of guilt. Counsel for the prosecution have circulated a document upon which the six lies are set out, as is the evidence relied upon to establish that they are lies. I initialled that document on 5 November 2007 and placed it on the court file. The lies are sequentially numbered 1 to 6 in that document. This ruling assumes knowledge of that document and of the material referred to in it.
[3](2006) 16 VR 26
Lie 1 is the one lie that was relied upon in the first trial as evidence of consciousness of guilt, namely that on the night of the murder the accused was at home with Chhen So. Counsel for the defence accepts that this lie is capable of constituting evidence of consciousness of guilt, as counsel for the defence did in the first trial. I accept that.
Lies 2 to 5 concern statements made by the accused in his record of interview of 12 January 2005 about his contact with the Kohunui brothers. In substance, the Crown contends that the accused both minimised and falsely characterised the nature of his contact with the Kohunuis.
Counsel for the defence submitted that lies 2 to 5 should not be left to the jury as being capable of constituting consciousness of guilt because:
–the relevant phone records which are now relied upon as demonstrating that what was said was lies were not put to the accused in the record of interview nor was any specific contrary proposition put to the accused.
–what was said by the accused can be characterised as lies only as a matter of degree rather than fact or, in other words, that the accused did not deny any contact but rather, at the worst, minimised the contact.
–the assertion that the nature of the relationship was falsely characterised has no evidentiary foundation as there is no evidence of what was the subject matter of the recorded phone calls.
It was submitted by counsel for the defence that any “distancing” revealed by lies 2‑5 could only reflect on credibility and that an inference of guilt could not be drawn.
Counsel for the prosecution also dealt with lies 2‑5 together. They submitted that the relationship between the accused and the Kohunuis goes to the “heart of the matter” and that the issues raised by counsel for the defence were matters for the jury to determine. They submitted that although it could not be said that there was evidence as to what was talked about in the recorded phone calls, it was clearly open to conclude that what the accused had said about them was a lie. It was also submitted that these lies will be dealt with in the prosecution’s final address and their significance is so clear and strong that the temptation will be there for the jury to regard them as indicating consciousness of guilt. I interpreted this submission as suggesting that an Edwards v The Queen (“Edwards”)[4] direction would be necessary in any event and that a Zoneff v The Queen[5] direction may not be adequate in the circumstances.
[4](1993) 178 CLR 193.
[5](2000) 200 CLR 234.
After considering the matter, I heard further submissions on the specific lies 2‑5 because it seemed to me that different considerations might apply to each of them. Counsel for the respective parties substantially maintained the position that the alleged lies 2‑5 could, and should, be dealt with as a group. In relation to concerns I raised as to what might be described as the materiality of the particular lies, counsel for the prosecution submitted that I was trespassing into matters properly for the jury to determine.
It seems to me that in relation to each of the lies 2‑5 it is open to conclude that the accused did make the statements contended for and it is open to conclude that they were lies. I think the position is clearer in this respect in relation to lies 2 and 3 than it is in relation to lies 4 and 5.
In Edwards, Deane, Dawson and Gaudron JJ said:
“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.”[6]
[6](1993) 178 CLR 193, 209.
In a further passage, later quoted by the Court of Appeal in R v Konstandopoulos[7], they continued:
“…[T]he 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. It must be for that reason that he tells the lie. 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’.”[8]
Deane, Dawson and Gaudron JJ went on to say:
“A lie can constitute an admission against interest only if it is concerned with some circumstance or event connected with the offence i.e. 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 the truth would implicate him in the offence.”[9]
[7][1998] 4 VR 381.
[8](1993) 178 CLR 193, 209.
[9]Ibid 210.
They held in that particular case that the jury “should not have been invited” to use the lies allegedly told by the accused there as indicating consciousness of guilt because those lies did not relate to a material issue in this sense.[10]
[10]Ibid 213.
Alleged lie 2 concerns contact between the accused and the Kohunuis on the day immediately after the relevant armed robbery, that is, on 29 November 2004. Alleged lie 3 concerns contact between the accused and the Kohunuis on the day of the armed robbery. Contact between the accused and the Kohunuis on these two days does go to the heart of the matter, as counsel for the prosecution submitted. What was said by the accused about his contact with the Kohunuis on the night of the robbery overlaps with alleged lie 1 about where the accused was at the time the offences were committed. Especially given what occurred in the armed robbery itself, the contact on the day after is, in the circumstances here, very material.
In my view, it is open to the jury to conclude that alleged lies 2 and 3 do relate to a material issue. Whilst other possible explanations for alleged lies 2 and 3 will need to be considered, it does seem to me that it is also open to conclude that the accused lied about the nature and extent of his contact with the Kohunuis on these two days because he knew the truth would implicate him in the offences of armed robbery and murder. Accordingly, I will permit the prosecution to characterise lies 2 and 3 as lies constituting evidence of consciousness of guilt and I will direct the jury accordingly.
It seems to me that alleged lies 4 and 5 fall into a different category. Alleged lie 4 concerns the accused’s general contact with the Kohunuis over an indefinite period prior to the armed robbery and murder, which the accused refers to as “since they got out”. Alleged lie 5 concerns contact between the accused and the Kohunuis after they had fled to Queensland.
It was known by all concerned at the time the accused made the statements alleged to be lies 4 and 5 in his record of interview that the Kohunuis had been involved in the armed robbery where the murder occurred. In that same record of interview the accused confessed that he had taken the Kohunuis to the railway station so as to enable them to flee to Queensland. It can validly be contended that the accused damages his credit in the way he describes his general contact with the Kohunuis in alleged lie 4 and in the way he describes his contact with them when they were in Queensland in alleged lie 5, but it does not seem to me that one can go further than that. The subject matter in each case is not, it seems to me, material in the sense described in Edwards. These alleged lies do not sufficiently concern a circumstance connected with the offences.
There is a further problem in relation to alleged lie 5. It is clear that the accused assisted the Kohunuis to flee. Whilst the Court of Appeal in Ciantar has now made it clear that generally it should be left to the jury to decide whether the post‑offence conduct related to the offence charged or to some other wrongful conduct, the court did indicate that if upon consideration of the totality of the evidence the post‑offence conduct is equally consistent with two or more possible offences or is otherwise intractably neutral, such conduct should not be used as an implied admission of guilt.[11] It seems to me that given the accused’s acknowledged involvement in the Kohunuis’ flight from the state, lie 5 concerning his contact with them while they were in Queensland is equally consistent with consciousness of his role in their departure as it is with the consciousness of his role in the alleged crimes.
[11](2006) 16 VR 26, 39.
Alleged lie 6 concerns the statements made in the accused’s record of interview in relation to talking on, and getting rid of, mobile phones. What is said to be the lie is not as clear here as it is in relation to the other alleged lies.
In my view, this lie should not be characterised as consciousness of guilt for the same reasons as I have given in relation to alleged lie 5. It does not seem to me to concern a subject matter which is sufficiently material and it is equally consistent with a consciousness of the accused’s role in assisting the Kohunuis to flee and to evade apprehension as it is with a consciousness of involvement in the offences charged. There is yet a further equally consistent consciousness which arises here and that is a consciousness that his sister was harbouring the Kohunuis at the time.
My conclusion, accordingly, is that the prosecution may characterise alleged lies 1, 2 and 3 as revealing consciousness of guilt, but that it should not so characterise alleged lies 4, 5 and 6 and I will charge the jury accordingly.
The conclusion I have reached does not, of course, preclude the prosecution from submitting to the jury that all of the alleged lies were told and that the accused’s account should be rejected as not being credible for that reason. It also does not, of course, preclude the prosecution from relying upon all of the phone records themselves as evidence of the accused’s involvement with the Kohunuis before, during and after the offences.
In the circumstances it will be necessary to emphasise that it is only lies 1, 2 and 3 that can be used as evidence of consciousness of guilt.
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