The State of Western Australia v Brown [No 3]

[2025] WASC 151

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- BROWN [No 3] [2025] WASC 151

CORAM:   MCGRATH J

HEARD:   18 MARCH 2025

DELIVERED          :   19 MARCH 2025

PUBLISHED           :   30 APRIL 2025

FILE NO/S:   INS 23 of 2024

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

Prosecution

AND

LAUREN VIVIAN BROWN

Accused

Catchwords:

Criminal law - Murder - Admissibility of lies - Consciousness of guilt - Whether lie evidence of guilt

Legislation:

Nil

Result:

Evidence admissible

Category:    B

Representation:

Counsel:

Prosecution	:	Mr M M Cvetkoski with Ms L G Hodson
Accused	:	Mr A E Eyers & Mr E P Fitzpatrick

Solicitors:

Prosecution	:	Director of Public Prosecutions (WA)
Accused	:	Equus Chambers

Case(s) referred to in decision(s):

Broadhurst v The Queen [1964] AC 441

Coates v The State of Western Australia [2009] WASCA 142

Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193

Hedgeland v The State of Western Australia [2013] WASCA 97

NAD v The State of Western Australia [2013] WASCA 2

Nestorov v The Queen [1999] WASCA 303

R v Ibrahim [2003] VSCA 180; (2003) 7 VR 141

R v Konstandopoulos [1998] 4 VR 381

MCGRATH J:

Consciousness of guilt particulars

1. The defence objects to the State seeking to rely upon alleged lies as demonstrating a consciousness of guilt.

2. The gravamen of the objection is that, as a matter of law, the jury properly directed could not find that the utterances proposed to be relied upon by the State are deliberate untruths.  Therefore, the alleged lies should not be left to the jury to consider whether they are satisfied that the lies reveal a consciousness of guilt.  The alleged lies are contended by the State to be relevant only to the element of unlawfulness, namely self-defence.

3. The contention of the defence is that there is an important difference between the mere rejection of a person's account of events and a finding that a person has lied.  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 accused may have been confused, or misunderstood what was being asked of her, or what she was saying, when she made the statement.  There may well be other reasons for finding the utterances were not deliberate untruths.  For example, the accused's mental state at the time the utterances were made casts significant doubt as to whether a jury could find that the utterances were deliberate untruths.

4. In this case, the contention is that the accused was terrified, hysterical and panic-stricken when she made the utterances.  In respect to the lies made to Michele Brown and Jake Brown, there is also the contention that the accused was speaking of another injury, being an injury to the eye region of the deceased, and that, due to either not being aware or so panicked, she did not know the knife had penetrated the deceased because she only observed that injury to the deceased's head.  Therefore, her utterances cannot be said to be deliberate lies.

The lies

1. The State has particularised the lies relied on as follows.

Lie - Senior Constable Perry

1. After being arrested by Senior Constable Perry, at 09:45:55 pm, the accused was asked where the knife is located.  The accused stated the following:

   Perry:My name's - my name's Constable Perry from Joondalup Police. All right.  Just [indistinct] place you in custody. It's all right. Come with me.  At this stage, I'm placing you under arrest on suspicion of unlawful wounding. You're not obliged to say anything unless you wish to do so. Anything you do say may be used in evidence.  Can you do me a favor?  Do a very - my colleague here's gonna do a very quick pat down search of you, okay.  Don't touch anything. All right. Understand. Have you got a knife on you?

   Brown:No.

   Perry:Where's the knife?

   Brown:I've got mace here.

   Perry:Don't touch the mace.  Where's your - where's the knife?

   Brown:Um, I don't know. I think it's upstairs.[1]

   [1] Exhibit 18.

2. The State relies on the concealment of the knife and the lie made to Senior Constable Perry to establish the accused acted unlawfully, namely the act of stabbing the deceased was not done in self-defence.

3. The State submits that the concealment of the knife (AHE1) is capable of establishing the accused's conduct was unlawful and that the accused consciously attempted to distance herself from AHE1 by removing the knife from the scene and concealing it in the toilet area.

Lie - Michele Brown

1. At 08:56:18 pm on 28 September 2023, the accused contacted Michele Brown via mobile telephone.[2]

   [2] Exhibit 58: Lauren Vivian Brown's phone call log download.

2. During the telephone call made to Michele Brown, the accused stated that the deceased hurt or stabbed himself. Michele Brown gave the following evidence:

   …she was crying, distraught, hysterical.  That - I can't really remember. I don't know. I really can't remember if it was James had hurt himself or James had stabbed himself and had blood on his head.[3]

   [3] ts 300.

3. The evidence relied on to prove the lie is identified at paragraph [2] of the State's particulars.

4. The State relies on the lie to establish the accused acted unlawfully, namely the act of stabbing the deceased was not done in self-defence.

5. The State submits the lie is capable of establishing the accused's conduct was unlawful, and the accused consciously attempted to distance herself from the injury she had inflicted upon the deceased by creating an innocent explanation as to how the sharp force penetrating injury was caused.

Lie - Jake Brown

1. In respect to a statement made to Jake Brown via social media that the deceased hurt himself, Jake Brown said that on 28 September 2023, the accused sent the following message to his mobile telephone:

   …He - he stabbed himself, or James has stabbed himself.[4]

   [4] ts 156.

2. Exhibit 59[5] records the accused sending a message to Jake Brown on 28 September 2023 at 09:01:47 pm (WST):

   He stabbed himself

   [5] Exhibit 59: telephone records of messages between Jake Brown and the accused.

3. The State relies on the lie to establish that the accused acted unlawfully, namely the act of stabbing the deceased was not done in self-defence.

4. It is contented by the State that the lie is capable of establishing the accused told the lie out of a consciousness of guilt, that is, the accused knew the truth would implicate her in the offence.  The State submits the accused appreciated the conduct was unlawful and, conscious of this fact, attempted to distance herself from the injury by creating an innocent explanation as to how the sharp force penetrating injury was caused.

Relevant legal principles

1. The relevant principles of the Edwards direction were outlined in Hedgeland v The State of Western Australia[6] at [85] - [86] by Buss JA (with whom Martin CJ agreed) as follows:

   [6] Hedgeland v The State of Western Australia [2013] WASCA 97.

   An Edwards direction is ordinarily essential if the State relies on a lie told by the accused as evidence of his or her guilt.  As Lord Devlin observed in Broadhurst v The Queen [1964] AC 441, 457, there is a natural tendency for a jury to think that, if an accused is lying, it must be because he or she is guilty. The rationale for giving an Edwards direction is the avoidance of a perceptible risk of a miscarriage of justice if the jury were to misuse the lie so as to make a finding of guilt by impermissible reasoning.  There is no precise verbal formula for the direction.  A trial judge should tailor the direction to the circumstances of the case.  See R v Konstandopoulos [1998] 4 VR 381, 388 (Callaway JA, Winneke P & Kenny JA agreeing); Nestorov v The Queen [1999] WASCA 303 [11] (Kennedy J, Ipp J agreeing); R v Ibrahim [2003] VSCA 180; (2003) 7 VR 141 [42] (Eames JA, Vincent JA & Ashley AJA agreeing).

   If an Edwards direction is required, the direction must ordinarily encompass the following:

   (a)the lie must be precisely identified;

   (b)the jury must be told that the lie will not be evidence against the accused unless the lie was deliberate;

   (c)the jury must be reminded that there are many reasons why people tell lies, apart from the realisation of guilt;

   (d)the jury must be told that it cannot use the lie as evidence against the accused if it accepts an explanation for the lie that is consistent with innocence;

   (e)the jury must be told that the lie will not be evidence against the accused unless the lie was told out of a consciousness of guilt (that is, the accused knew that the truth would implicate him or her in the offence) and the lie reveals knowledge of the offence charged or some aspect of it; and

   (f)the facts, events and circumstances relied on by the State to indicate that the lie constitutes an admission against interest must be precisely identified.

2. In NAD v The State of Western Australia[7] at [60] - [66], Buss JA affirmed his summary of propositions in relation to the standard proof of lies told by an accused as set out in Coates v The State of Western Australia.[8]

   [7] NAD v The State of Western Australia [2013] WASCA 2.

   [8] Coates v The State of Western Australia [2009] WASCA 142 [152] - [158].

3. First, although the guilt of an accused must be proved beyond reasonable doubt, an alleged admission constituted by the telling of a lie may be considered with the other evidence and, for that purpose, does not have to be proved to any particular standard.[9] 

   [9] Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193, 210 (Deane, Dawson & Gaudron JJ).

4. Secondly, if an alleged admission constituted by the telling of a lie 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 accused may be convicted.[10]

   [10] Edwards (210).

5. Thirdly, and subject to the second proposition at [21] above, the tribunal of fact may find that a lie told by the accused reveals a consciousness of guilt without applying any particular standard of proof, and may conclude that, on the whole of the evidence, the accused is or is not guilty beyond reasonable doubt.[11]

   [11] Edwards (210).

6. Fourthly, a lie will not be evidence of guilt (as distinct from being merely a matter going to credit) unless it was deliberate.  The accused must have told the lie because he or she knew that the truth was inconsistent with his or her evidence.  It must be a lie that an innocent person would not have told and it must reveal knowledge of the offence charged or some aspect of it.  The tribunal of fact may only use the lie as evidence of guilt if satisfied the accused knew that the truth would implicate him or her in the offence.[12]

   [12] Edwards (209 ‑ 211).

7. Fifthly, the lie, and the circumstances and events relied on to indicate that the lie constitutes an admission against interest, must be precisely identified.[13]

   [13] Edwards (210 ‑ 211).

8. Sixthly, the tribunal of fact must be aware (or, in the case of a jury, told) that there are many reasons why people tell lies, apart from the realisation of guilt.  The tribunal of fact cannot use a lie as evidence against the accused if it accepts an explanation for the lie that is consistent with innocence.[14] 

   [14] Edwards (211).

9. Seventhly, where a lie is relied on as corroboration of a witness's evidence (and not merely to strengthen the State's case), the untruthfulness of the lie must be established otherwise than by the evidence of the witness who is to be corroborated.[15]

Consideration of objection

[15] Edwards (211).

1. As I have observed, the gravamen of the defence objection is that the accused was profoundly confused and hysterical after being involved with an incident in which she was required to use a knife to defend herself against her partner.  Counsel submitted that the testimony of relevant witnesses establishes that the mental state of confusion of the accused had reached such a point that the utterances of the accused could not be left to the jury as lies that could amount to deliberate untruths.

Evidence

1. Jake Brown gave evidence that he received a voice only call through Facebook Messenger on 28 September 2023 from the accused.  Jake Brown stated that the accused sounded 'quite hysterical and in shock would be my best way to describe it'.  Jake Brown said she sounded scared (ts 156 - 157).  In cross-examination, Jake Brown stated that the accused was freaking out and speaking in broken sentences reporting the incident to him (ts 175).

2. Ms Chen gave evidence that she heard the accused screaming hysterically (ts 218).

3. Ms Lao gave evidence that the accused was 'kind of hysteric with quite a scared or something' (ts 229).  Ms Lao stated that the accused appeared to be scared. 

4. Mr Nicholas stated that the accused seemed quite upset stating that her partner had attacked her (ts 271).  The accused then went back upstairs.  Upon the accused returning, Mr Nicholas stated that she was then quite upset and hysterical (ts 272).  Mr Nicholas stated that in his presence the accused was saying the words 'he's bleeding' or 'there's blood' (ts 282) but her demeanour had not changed.  Mr Nicholas accepted she was still crying and hysterical and very upset (ts 282).

5. Mr Dinsdale stated that he heard screaming from the accused which he described as 'hysterical like screaming' (ts 292).

6. Michele Brown, who received a telephone call from the accused on 28 September 2023, stated that the accused was reporting that the deceased was being abusive.  Michele Brown gave evidence that her daughter appeared to be hysterical.  During the second call, Michele Brown recalls the accused said the words 'James had hurt himself or James had stabbed himself' (ts 300).  Michele Brown said that during the second telephone call the accused was still crying and hysterical (ts 307).

7. Mr Park, a nearby neighbour, gave evidence that the accused was talking to the neighbours and reporting that she had been kicked in the back of the head by the accused.  Mr Park stated that the accused's demeanour was 'erratic and shocked' (ts 317).  This was prior to her returning the second time to her apartment.

8. Mr McSweeney, a nearby resident, gave testimony that he heard the accused shouting and that the shouts were 'desperate' (ts 337).

9. Mr King, a nearby resident, gave evidence that he heard the accused shouting the words 'help me' a few times.  Mr King stated the words were spoken in a manner which was 'panicked and scared' (ts 346).  In cross-examination, Mr King stated that the words 'help me' were in terms of a 'curdling scream like a panic' (ts 352).

10. Senior Constable Perry gave evidence regarding his attendance at the incident.  Body worn camera footage from Senior Constable Perry was produced at trial.[16] Senior Constable Perry did not give testimony regarding any concerns regarding the mental state or consciousness of the accused.

    [16] Exhibit 20.

11. Constable Mulhall gave evidence regarding his attendance at the apartments on Plaistow Street on 28 September 2023.  Constable Mulhall produced his body worn camera footage which does not disclose any dealings with the accused.[17]

    [17] Exhibit 21.

12. Paramedics who attended at the Plaistow Street apartments did not provide assistance or undertake an examination of the accused.

13. Detective Senior Constable Carney attended the apartment at Plaistow Street on 28 September 2023.  Detective Carney interacted with the accused and undertook a search of her body to locate any items (ts 421 - 425). The body worn camera footage from Detective Carney was produced at trial.[18]

    [18] Exhibit 26.

14. Detective Carney confirmed that the accused stated she had no more than a sip of alcohol (ts 427).  In cross-examination, Detective Carney agreed that 'I imagine with what had happened' the accused was in shock (ts 429) and accepted the proposition that the accused was obviously distressed and in shock (ts 432).  No further questions were asked of Detective Carney regarding whether the accused was disorientated or whether she was unable to understand the questions.

15. Detective First Class Constable Gough attended the apartment at Plaistow Street on 28 September 2023 (ts 436).  Detective Gough stated that he handcuffed the accused.  Detective Gough said that during the movement of the accused to the Joondalup Police Station, he did not speak to the accused.  Prior to leaving the apartments, Detective Gough asked the accused whether she needed to go to hospital or get medical attention to which she said she did not know (ts 439).  Detective Gough stated that during the travel to Joondalup Police Station she did not say anything, she was quiet (ts 440).

16. In cross-examination, Detective Gough agreed with the proposition that the accused appeared confused and shocked (ts 442).

17. Upon arriving at the Joondalup Police Station, Detective Lowden took the accused into a separate room for a strip search where the accused was given a jumpsuit (ts 440).

18. During her testimony in cross-examination, Detective Lowden said that during an informal unrecorded conversation the accused was asked a number of questions but appeared to be confused and dumbfounded.  Detective Lowden stated the accused 'looked like she was looking through me' and 'not comprehending what was going on' (ts 453).

19. Detective Senior Constable Mills of the Homicide Squad gave testimony (ts 465).  Detective Mills was involved with breathalysing the accused at the Joondalup Police Station.  The breathalyser returned a zero result (ts 468).  Detective Mills described the processing of the accused (ts 468 - 71).  In cross-examination, Detective Mills confirmed the accused was visibly upset (ts 473).  Detective Mills said the accused understood her words but doubted whether she understood the procedures as much (ts 473).  Detective Mills agreed with the proposition that the accused was shook up by the incident (ts 473).

20. Ms Ford, a nurse at the police watchhouse attended on the accused at 12.00 am on 29 September 2023.  Ms Ford did not give evidence in respect to the confusion or mental state of the accused.

Assessment

1. A significant part of the evidence concerning the appearance and physical state of the accused is the body worn camera footage produced by the police officers.  I have considered that camera footage.  It is clear that whilst the accused was emotional, she was lucid and able to communicate with the officers.

2. The accused was not intoxicated with alcohol, nor had she consumed drugs.  The accused was sober. 

3. There is no medical evidence to support any finding that the accused was in some form of automatism or semi-consciousness, nor is that contended.

4. The most that may be said is that the accused had an altercation with her partner and during that altercation she used a knife to strike the deceased.  The event would undoubtedly be an emotional event leaving her extremely upset. 

5. After considering this matter carefully, I am not satisfied that the accused was so shocked or distraught that she did not understand the nature and significance of her utterances.

6. The accused has accepted through admissions that the knife she possessed caused the penetrating injury.  Issues of self-defence and voluntariness arise.  The accused contends that she was referring to the injury to the head when communicating with Jake Brown and her mother.  This claim of ambiguity is a matter for the jury to assess in light of all relevant evidence.

7. Ultimately, the contentions of the accused will be assessed by the trier of fact in determining whether or not they are satisfied that the respective utterances of the accused were deliberate untruths.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

CEM

Associate to the Hon Justice McGrath

30 APRIL 2025