Vragovic v R

[2007] NSWCCA 46

New South Wales
Court of Criminal Appeal

CITATION:	Vragovic v R [2007] NSWCCA 46
HEARING DATE(S):	18/01/07
JUDGMENT DATE:	27 February 2007
JUDGMENT OF:	Adams J at 1; Howie J at 37; Price J at 38
DECISION:	Grant leave to appeal against sentence but otherwise dismiss the appeal.
CATCHWORDS:	conviction appeal - false alibi - consciousness of guilt - failure to direct as to lies - defence submitted should not direct on lies - application of Rule 4 - application of proviso to 6(1) of Criminal Appeal Act 1912 - no miscarriage of justice
LEGISLATION CITED:	Crimes Act 1900 Criminal Appeal Rules
CASES CITED:	Edwards v The Queen (1993) 178 CLR 193 R v Ambrosi (2004) 144 A Crim R 67 R v DH [2000] NSWCCA 360 R v Jeffery (unreported, NSWCCA 16 December 1993)
PARTIES:	Ivan Vragovic Regina
FILE NUMBER(S):	CCA 2006/2205
COUNSEL:	Applicant: Mr A Cook Respondent: Ms N Noman
SOLICITORS:	Applicant: Legal Aid Commission of New South Wales Respondent: Director of Public Prosecutions
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	04/61/0064
LOWER COURT JUDICIAL OFFICER:	Woods DCJ
LOWER COURT DATE OF DECISION:	22/03/06

2006/2205

ADAMS J
HOWIE J
PRICE J

Tuesday 27 February 2007

Ivan VRAGOVIC v REGINA

Judgment

ADAMS J:

Introduction

1 The appellant was convicted following his trial on 4 November 2005 of a charge that he, on 11 November 2003 at Yeoval, maliciously inflicted grievous bodily harm upon Vivian Catupic with intent, an offence under s33 of the Crimes Act 1900 carrying a maximum penalty of 25 years’ imprisonment. The appellant, who was then aged 69 years, was sentenced on 22 March 2006 to a term of 12 years with a non-parole period of 8 years commencing 8 November 2005. This sentence was partially accumulated upon a sentence of 7 years with a non-parole period of 4 years also for an offence under s33 of the Crimes Act 1900 of maliciously inflicting grievous bodily harm with intent, of 7 years with a non-parole period of 4 years that commenced on 8 November 2003. Accordingly, the effective overall sentence for both offences was fourteen years imprisonment with a non-parole period of ten years. He will be seventy-six years of age before being eligible for release on parole. The appellant appeals to this Court in respect of his conviction and seeks leave to appeal in respect of his sentence.

The testimony

2 The victim had been married to the appellant for many years before they divorced in mid-2003. The victim had thereafter commenced a relationship with a Mr McKinnon and an apprehended domestic violence order protecting the victim and Mr McKinnon from the appellant was in force. At about 9.30 pm on 11 November 2003 at Yeoval, a small village about 20 or 30 kilometres south west of Wellington, the victim was at home alone and speaking on the telephone when it suddenly went dead. Moments later, the victim alleged, she saw, she said, the appellant at her window forcing entry. She tried to close the window but the appellant prevented her from doing so. She ran out of the house towards the rear where, the intruder beat her with a piece of exhaust pipe and a shortened firearm, resulting in a number of serious injuries including fractures of the left lower ribs, a small left-side pneumothorax, a fracture of the left scapula, lacerations on the scalp and head, and significant soft tissue swelling of the mid-face. Police later recovered from the scene the firearm and exhaust pipe said to have been used and DNA analysis detected blood on these items with the same DNA profile as that of the victim. Three live rounds were also found at the scene. Police noted that the telephone wires had been interfered with, the front window was open and the flyscreen had been cut. A number of witnesses playing tennis nearby saw a man in blue overalls running from the house. The victim told a number of witnesses, including attending police and ambulance officers en route to the hospital, that the appellant had attacked her.

3 The only real issue in the trial was whether the victim’s recognition of the appellant as her attacker was a mistake. As will be seen, the appellant gave police an alibi.

4 A neighbour who became aware of the attack very shortly after it occurred, telephoned Sergeant Blain at the Yeoval police residence at 9.35 pm to inform him of the attack. He attended the premises and was involved in police investigations at the scene. At 10.26 pm (about an hour after the attack), following a report being made to police by a member of the public, he, and a Constable Cremers went to a place about fifteen kilometres out of Yeoval, the place of the attack, where they saw a small sedan on its roof engulfed in fire. For some distance along the dirt road and leading to the upturned vehicle, skid marks were seen. It was apparent that the car was travelling towards Parkes from Yeoval when it had hit the graded dirt embankment on the roadside. The registration plate was still legible. It was not disputed that the appellant hired this vehicle from Thrifty Car Hire at Taree about midday on 11 November 2003, using the name of Tom Pelican, which he described as his “other name”. I will come later to the appellant’s account of events but it should be noted that the vehicle did not have a bull bar.

5 Peter Humphries, who knew the appellant well for a number of years, gave evidence that, at 9pm on 10 November 2003, the appellant had telephoned him to ask him to pick him up from somewhere in the Bulahdelah district in the mid-north coast but that Humphries said that he did not think this was practical and suggested that the appellant should hire a car, which the appellant told him he would do. He did not speak to or see the appellant again until 13 November 2003 when he was a support person for the appellant following his arrest. At that time the appellant told him he had indeed hired a vehicle. Mr Humphries did not know what kind of car he hired or what had happened to it.

6 A Mr Brown, who lived in the nearby township of Tichborne and knew the appellant, said that he was at home watching television at some time between 6pm and 6.30pm on 12 November 2003 when he received a telephone call from the appellant who said that he was at his (Brown’s) son’s house in Parkes and asked if he could pick him up. Accordingly, Mr Brown borrowed a car, went to his son’s house, collected the appellant and brought him out to his property, returning at about 7 o’clock. He said that the appellant had told him that he had been robbed and abducted and taken to a place between Forbes and West Wyalong where he was tied up all night on the bull bar attached to his car. Mr Brown’s house is situated on the highway between Forbes and Parkes, about 10 kilometres from Parkes and 25 kilometres from Forbes. The appellant told Mr Brown that he had been abducted from somewhere near Orange. He said to Mr Brown that he had hired a car up the coast, had come back to Orange where he was having a rest and that these men pulled up and put a gun on him and were going to shoot his kneecaps out, claiming that he owed them money. He told Brown that this occurred the previous night namely, on 11 November. The appellant told Mr Brown that the men were Arabs, that there was a carload of them at first and then another group came in an old Falcon station wagon, took his car from him and took him away. He said that he had hitchhiked to Mr Brown’s house. The appellant told Mr Brown that he would contact the police when he got home to Mumbil and Mr Brown agreed to take him home, getting some food from a Kentucky Fried Chicken shop on the way. He said that the appellant gave him $50 to pay for petrol. He said that he had this money with him though he did not know from where he got it. In cross-examination Mr Brown said that the appellant seemed a bit upset – “half crying” – and that he noticed no injuries on him. Mr Brown’s daughter-in-law, Michelle Birmingham, said that the appellant had arrived at her home in Parkes at about 6 pm. He had a backpack with him. He said he needed someone to drive him home as he had court the following day and offered to pay. He spoke on the telephone with Mr Brown but she did not hear the conversation and, shortly afterwards, her father-in-law arrived to pick the appellant up.

The appellant’s interview with police

7 The appellant was arrested in Wellington on 13 November 2003 at about 8 am, then driving a white Nissan van. Three pairs of light blue overalls and one pair of dark blue overalls were found in the vehicle. The appellant was interviewed and asked, amongst other things, to account for his whereabouts at and around the time when the victim was assaulted. The appellant said –

“A Yeah. Tuesday night I come round about 8 o’clock to Orange - - -
Q53 Yeah.
… and I stop in an information centre and I had a, had a drink, I had a bottle of lemonade and I had a drink. And I feel bit tired and I put the seats down and said, I will have a rest here - - -
Q54 Yeah.
A And round about, after, after that, maybe five or 10 minutes, I fell, like, well, I die, fell to sleep. And the man come and said to me, “You are here”. “Yes”, I said, “I’m here”. He said, “What about money what you owe me?” I said, “I don’t owe you any money, I don’t know you”. He said, “You bought stuff from me six year ago and I know your face and I know your accent”. I said, I didn’t buy nothing off you”. Then he pulled the gun, pistol and he said, “I blow your kneecap, don’t lie to me”. I said, “I don’t lying to you”. Then he had a gun in his hands and he went like this. Then another two men come and they said to one of them, “Get the box”. Then he grab the box, there was a box that size like this - - -
Q55 Yeah.
A - - -full of needle, like a pencil thickness, drugs. I said, “I don’t deal in drugs, I never, I don’t smoke, I don’t drink, I never had nothing to do with you”. Then he said to me, “I know you for long time. I want my money”. I said, “I don’t owe you any money”. So, he point the gun like me, towards me - - -
Q56 Yeah.
A - - -and I had in my wallet, how much, $900, but there was, I hand that money, there was a, a Coca Cola bottle only bottle was cutted off, that was nearly full of $2 coins, but that was underneath seats. So, they didn’t see that …
Q57 Yeah.
A - - -and he said to me, “Step out from the car”. And I wake up and I step out, they handcuff me, they put me in other car, they put a bag over me, onto my head, then we probably drive for two hours and I finish then where is the fishing spot between Forbes and West Wyalong and I was there that night and yesterday all, all day ‘til 9 o’clock probably, when they let me go.
…
Q59 O.K. All right. So, what time yesterday, or what time yesterday did they let you go so you could go to court?
A Round about 9 o’clock.
Q60 9 o’clock?
A At night, yeah.
Q61 O.K. At night. O.K. So, between Forbes and West Wyalong, is that - - -
A Yeah.
Q62 That’s, now Forbes is a reasonable distance away from here, isn’t it?
A Yeah.
Q63 Yeah. And West Wyalong’s even further, it’s sort of south-west of here - - -
A Further, yeah. It’s somewhere between Forbes and, and West Wyalong - - -
Q64 Yeah.
A - - -probably, I don’t know, 50 kilometres from Forbes - - -
Q65 All right.
A - - -something.
Q66 How did you get back from there?
A I, I hitchhiking.
Q67 All the way?
A Yeah.
Q68 All right.
A To Parkes, then from Parkes I pay $150 to get to Mumbil.
Q69 Who did you pay $150 to?
A A local bloke.
Q70 A local, who?
A I don’t know who he was, young fella, I stop him down and ask him will he give me lift to Mumbil - - -
Q71 Where did you stop him at?
A In, in Parkes, near the railway station.
Q72 O.K. So, now, when you say he was a local bloke, a local bloke from Parkes?
A I would say so, yeah.
Q73 What sort of motor vehicle would he have been driving?
A Motor vehicle. I think it was Commodore.
Q74 O.K. You never got his name or anything?
A No.
Q75 O.K. Now are you familiar with the area between sort of West Wyalong and here?
A Yeah.
Q76 Know the roads and everything?
A I know the area, I’ve been here for 17 years.
Q77 O.K. So, you’ve driven around Parkes and - - -
A Yeah, yeah.
Q77 - - -all those places - - -
A Yeah.
Q77 - - -a fair bit. Do you know where the police station is in Parkes?
A No.
Q78 Not, not at all?
A No.
Q79 O.K. Now, when you, these guys let you go, how, sorry, how did they have you, how did they hold you, they put a bag over your head to drive you over there, did they tie you up?
A Yeah. The put the bag over, over me head - - -
Q80 Yeah.
A - - -and all the time that was on my head, bag.
Q81 O.K. What about your hands and your legs, were they tied up?
A My hands was - - -
Q82 Can you pull your sleeves up for me? O.K. Just give me a good look round your, your sleeves, where did they tie you, sir?
A Here.
Q83 O.K. Was it rope or belts - - -
A No, no, they was like the police got.
Q84 Handcuffs?
A Yeah.
Q85 Were they really, really tight?
A No, no, they not tight, but they just, I couldn’t slip it off.
Q86 All right. O.K. Now, were you scared?
A When he said that, when he pointed the gun on me, “I blow your kneecap off”, well, I was scared.
Q87 Yeah. Did you think you might get than a, get kneecapped by these guys, did you think they might kill you?
A Well, what’s happen, in the morning when he, he took the injection, know the skinny was probably…. the white stuff….And he put something round his arm - - -
Q88 Yeah.
A - - - and then injected himself and he pushed the half - - -
Q89 Yeah.
… then he fired a smoke and …
Q90 Didn’t you say a minute ago you had a bag over your head all the time while …
A No, not that time, no - - -
Q91 Not that time.
A - - -in, in the morning, no I didn’t - - -
Q92 All right.
A - - -have that morning.
Q93 O.K. Now - - -
SENIOR CONSTABLE ARCHER
Q94 When you just, excuse me for interrupting, when you just mentioned that this bloke’s put it in his arm - - -
A Yeah.
Q94 - - -did you say that he had the smoke, or did you have the smoke?
A No, no, I don’t smoke. What he did, he tied his arm with something here, then they put that needle and pushed half on the stuff in, in, in his body, then he put his arm like this, then he fired a smoke, cigarette.
Q95 He had a cigarette?
A Yeah.
Q96 And then he’s finished injecting after that?
A Then he, he maybe puff twice or three time, then pushed the lot.”
…
Q120 Did he take your wallet or anything off you, take the $900 you had - - -
A I gave that, I gave it to him.
Q121 Gave it to him?
A Yeah.
Q122 Did he, did he search your wallet and take any more money off you or - - -
A No, I didn’t have a wallet with me.
Q123 Haven’t got a wallet with you?
A No.
Q124 All right. So, these guys let you go, they undone the handcuffs and everything?
A Yeah.
Q125 Did you just walk away or did they drive you somewhere - - -
A No, I didn’t walk away. He said to me, “You look this way” - - -
Q126 Yeah.
A - - -“and when we go, when you can’t see us” - - -
Q127 Yeah.
A - - -”then you can go”.
Q128 O.K. How far away from the roadway, the highway would you have been where these guys had you?
A Probably, about, I don’t know, two or 3 kilometres or something.
Q129 So, you walked all the way?
A Yeah, I walk all the way, yeah.
Q130 Still wearing the same clothes you, you were wearing then?
A Yeah, only trousers.
Q131 Only, what - - -
A Yeah.
Q131 - - -you still wearing the same trousers?
A Same trousers, yeah.
Q132 O.K.
A But new, it’s clean shirts.
Q133 All right. So, they let you go at 9 o’clock last night?
A Round about 8 o’clock, I, didn’t have a - - -
Q134 Walked straight to the, or walked to the main road and then started hitchhiking - - -
A Walk to the main road, yeah …
Q135 Who did you, who, what sort of vehicle pulled over the first to give you a lift?
A A truck.
Q136 Big truck, yeah.
Q137 Semitrailer?
A Yeah, semi, yeah.
Q138 O.K. Do you know, or did it have any sign writing on the door or anything like that?
A I don’t know, I didn’t, I didn’t look for that.
Q139 Did you tell the, the driver what happened to you?
A I didn’t say nothing, because if I maybe tell him he will say get out. So, I didn’t say anything.
Q140 Right. How far did he drive you?
A Drive me to Parkes.
Q141 O.K. Where did he, where did he drop you, like a service station or something?
A No, he drop me just over, over the railway near McDonald.
Q142 O.K. Now, you would have been, if, did they feed you while they had you tied up?
A There was no food.
Q143 You would have been hungry by whatever time it was this morning - - -
A Yeah. I, I went in McDonald and I bought six, six nuggets in McDonald.
Q144 What time did you get to McDonald’s at Parkes?
A …..what time, but probably was 9 o’clock, I don’t know, 10 o’clock - - -
Q145 … o’clock.
A - - -or quarter past ….. I don’t know exactly what time be.
Q146 This morning or last night?
A No, no, last night, last night - - -
Q147 They only let you go at 9 o’clock last night.
A Yeah, yeah.
Q148 So, it look 10 minutes to get from half way - - -
A No, no. I don’t know if it’s 9 o’clock or maybe was 8.30 or something, you know, maybe I come into Parkes 10 o’clock, I, I wouldn’t know.
Q149 O.K. Well, when you were at McDonald’s did you decide to get on the phone and ring the police and tell them what had happened to you, you’d been abducted?
A No, I didn’t. I, I, I, I, I wanted to come home and I want to phone up Peter what to do, but when I come home was 2 o’clock - - -“

8 The appellant said that he paid for the nuggets at McDonald’s with $6 or $7 in coins that he had in his pockets and the $150 that he offered to the unknown “local bloke” to be taken from the railway station in Parkes to Mumbil he got from his caravan when they arrived. He was asked if he knew what had happened to the vehicle he had hired. He said that Peter [Humphries] told him that it was burnt at about 20 kilometres from Yeovil on the Parkes Road.

9 It will be seen, therefore, that the appellant’s defence was that of alibi: he was not at Yeoval on Tuesday evening when the victim was attacked; at that time he had been kidnapped and was being held by a group of unidentified Arabs who later let him go without injury. As is obvious, there were substantial and very significant differences between the appellant’s account to police and the evidence of Mr Brown, Ms Birmingham and Mr Humphries. The appellant did not give evidence.

10 The only direct evidence capable of identifying the appellant was that of the victim who said that she saw the appellant’s face at the window immediately before he entered the premises and that she immediately fled. She said that she saw him cutting the gauze and then come through the window. The victim conceded that when she fled she was facing away from him and did not thereafter see his face.

Address to the jury by the prosecutor

11 The prosecutor suggested to the jury that the case against the appellant was not entirely dependent upon the evidence of the victim. He said –

“I am going to pause on there at this stage, ladies and gentlemen, because it is not just her. You see what else do we know? We know, for example, the accused hired a motor vehicle in Taree under the name of Tom Pelican and that he hired the car at noon on 11 November 2003. We know that the vehicle was seen by police within an hour of the assault, on its roof, burning, 15 kilometres from the scene of the assault…We also know the accused lied to police in his interview and we know that because putting aside the, what I suggest to you is the inherently unbelievable story of being kidnapped by Arabs and being driven and handcuffed to a, whatever it was, all night – putting that aside, we knew he lied because he told police he wasn’t released by these drug-crazed or drug-using people until 8 or 9 pm the day after…Well we know that’s a lie, all of that’s a lie because Michelle Birmingham says, “No, he was on my doorstep at about 6 pm’ …[After dealing with other parts of Mr Brown’s that were contended to be inconsistent with what the appellant told the police]…We know, therefore, that he lied about who, how, when, where and how much he paid to get from Parkes to Mumbil…He lied to police when he told them that peter [Humphries] told him his hire car had been burnt out and where…

Now there is a number of other things but at this stage I will pause and you ask yourself, why did he lie? Because he couldn’t tell the truth, because it would have implicated him. He was trying to establish an alibi, inherently unbelievable although it is, and it is a proven lie, I suggest, ladies and gentlemen.”

12 As he concluded his address the prosecutor returned to this theme. He referred to the evidence of the victim and reasons why the jury would accept it as true and then went on to say –

“And then all the other little things that point to him, the fact that it required knowledge of where the telephone junction box was, the light blue overalls, all those other things I’ve already mentioned to you. And the fact that he told this fantastic story to the police, which is inherently unbelievable and which you know is a lie. And he did it, that is, he lied, because he had to try and give himself an alibi because he knew if he told the truth he would put himself in. He couldn’t tell that he had actually done it, couldn’t tell where it was, because he would inculpate himself.”

13 For his part, counsel for the appellant dealt in some detail with the interview with the police but he did not refer to the Arab abduction story except to remind the jury that he appellant told Ken Brown that he was abducted. Counsel did not raise with the learned trial judge any issue arising out of the prosecutor’s address about which any directions were sought.

The directions to the jury

14 In summing up the case to the jury, his Honour referred briefly to the evidence, reminding the jury amongst other things, of Mr Brown’s evidence that the appellant had said to him “that he had been abducted and robbed by some Arabs at Orange the night before and had been tied up all night and tied to the bull bar of his car all night somewhere between Forbes and West Wyalong”. His Honour reminded the jury of evidence from the police officers –

“… The accused told police when he was arrested on the 13th … that he had been driving from Taree to his home at Mumbil and he was abducted in Orange, he identified as being by Arabs and they tied him up and took him to a fishing place near West Wyalong where he had been kept all night and he had not been released until the following day, the 12th. He said something about they took all his money, about $900 and Ivan then told police that he was released sometime after dark on the evening of 12 November somewhere between West Wyalong and Forbes. I think there was a reference to a couple of kilometres off the road, and he had to walk to the highway and then he hitchhiked to Parkes where he got some food, nuggets at McDonalds, and then asked a stranger in Parkes to take him to Mumbil and he said he paid the stranger $150 for that lift from money which he had kept at his property at Mumbil … “

15 His Honour then directed the jury in emphatic terms that, although an accused person may always by giving evidence make a response to the case presented by the Crown, there was no obligation to do so and the Crown bore the onus of proving beyond reasonable doubt that the accused is guilty of the offences and the accused bore no onus, being presumed to be innocent until the jury have been satisfied beyond reasonable doubt by the Crown that he is guilty. His Honour then gave the jury conventional directions as to the appellant’s not giving evidence and added –

“You must not speculate about what might have been said in evidence if the accused had himself given evidence. Of course, though, you already know that you have what he told the police following his arrest. So that is before you. Well, when you look at that and look at the evidence you will note the contradictions and counsel have noted some of those contradictions.”

16 His Honour referred to a number of matters brought to their attention by counsel and concluded with a reminder that they could only convict the accused if they were satisfied beyond a reasonable doubt of his guilt as being the only reasonable or credible explanation of the evidence.

17 His Honour then took the luncheon adjournment, not having sent the jury out to consider its verdict, although it is clear that he regarded his summing up as completed. Counsel for the defence sought some directions under s165 of the Evidence Act as to identification. This application was opposed by the Crown prosecutor who, however, added –

“I would, however, your Honour, be seeking a direction on lies, I don’t know if your Honour –
HIS HONOUR: A direction on what?
CROWN PROSECUTOR: The lies as consciousness of guilt.
HIS HONOUR: Well I think I referred to those as questions – it raises questions. I think I covered a couple of the things that you referred to by way of …
CROWN PROSECUTOR: Yes, your Honour. But you didn’t indicate what use could be made of those – I have here a copy of the direction which I printed off from the JIRS system this afternoon. I have shown it to my learned friend. The direction is that which is contained in the box, it’s at the bottom of the page and then over the page.
HIS HONOUR: What are the lies that you’re talking about? Those are the ones that I mentioned in relation to the – which are the lies?
CROWN PROSECUTOR: That how he came to get from Parkes back to Mumbil and the claim, for example, that he had been handcuffed to the bull bar, there is no evidence which can establish the story about the actual abduction is a lie, so I don’t rely on that for that purpose. It is essentially basically just the matters where there is direct contradictory evidence from Mr Brown – that’s as far as I can put it your Honour.”

18 This submission indicated, as is obvious, a fundamental misunderstanding about the nature of proof of a lie and its significance. Many facts can be proved by admissible evidence that rationally shows that fact to be the case. The prosecutor had appropriately put to the jury that the story given by the appellant to the police about his abduction was preposterous, a conclusion which would have been reinforced, as I see it, by the additional matters to which the prosecutor referred: the inconsistencies concerning the time the appellant was released; with whom and how the appellant travelled between Parkes and Mumbil and the payment for the trip; where the appellant ate; the appellant being handcuffed to the bull bar; and being informed about the fate of the hire car. All these surrounding incidents of the tale reflected adversely on the verisimilitude of its cental element, namely the abduction. Accordingly, the jury would have been entitled to conclude that the whole of the story about the abduction was a lie. Indeed, as I think I have already indicated, such a conclusion was inevitable. Accordingly, the limitations on the extent of the allegations of lying put by the Crown prosecutor to the learned trial judge were misconceived. Although this error was unfortunate and may have misled his Honour, it did not matter since the prosecutor had put the matter fairly and squarely and, in my view, appropriately, to the jury without any such qualifications.

19 The prosecutor brought the suggested direction contained in the Bench Book to the attention of the learned trial judge –

“The Crown submits that [the accused] lied. [The accused] [denies/admits with an explanation] that [he/she] did so.

Before you can take such an asserted lie, as alleged by the Crown into account as evidence of the guilt of [the accused], you must be satisfied that it was in fact not only a lie but also a deliberate lie. If you are not so satisfied, you cannot use it for this purpose. If however, you are satisfied that it was a deliberate lie, then you must also be satisfied that the lie —

1. relates to an issue that is material (or relevant) to the offence charged; and

2. reveals a knowledge of the offence or some aspect of it; and

3. was told because [the accused] knew that the truth of the matter about which [he/she] lied would implicate [him/her] in the offence charged, or to put it another way, because of a realisation of guilt and a fear of the truth. I emphasise that you must be satisfied that what was in [his/her] mind was guilt of the offence charged and not some other crime.
You must remember, however, that people do not always act rationally, and that conduct of this sort may sometimes be explained in other ways. There may be reasons for telling a lie apart from the realisation of guilt. For example, a lie may be told out of panic; to escape an unjust accusation; to protect some other person; or to avoid a consequence unrelated to the offence … [It is dangerous to give too many examples for the reasons stated in R v Jeffrey (1991) 60 A Crim R 384].

If you think that there is a reasonable possibility that the lie was told for such a reason, then you cannot use it for this purpose.

If you are satisfied, however, of the three matters to which I have referred, then you are entitled to use that finding in aid of the other evidence in the Crown case as pointing to the guilt of [the accused]. Standing by itself, it could not prove guilt.”

20 Counsel for the defence “strenuously” opposed the giving of the proposed direction as to lies as consciousness of guilt. He submitted that the lies were trivial; in this I think referring to the limited list of lies identified by the prosecutor in his submission. I do not agree that even the limited alleged lies were insignificant. Defence counsel submitted that, had the appellant given evidence and been cross-examined by the prosecutor in relation to the alleged lies, it might have then been appropriate to direct the jury about the use of those lies as consciousness of guilt. These submissions were without substance.

The grounds of appeal

21 The grounds of appeal contend –

(i) the trial miscarried as a result of the Crown Prosecutor submitting to the jury that the alleged lies by the appellant could be used to found an inference of guilt; and
(ii) the trial miscarried due to the failure of the learned trial judge to properly direct the jury as to what it must be satisfied of before it could take into account the asserted lie as consciousness of guilt.

It is convenient to deal with these grounds together.

22 In some cases it might be appropriate for a trial judge to give a warning about the use of lies as consciousness of guilt, even where the Crown has not sought to use alleged lies in that way, to ensure that the jury do not reason inappropriately if it finds that the accused did lie in particular respects. However, in this case, the Crown prosecutor had, as I have already said several times, clearly put to the jury that the appellant’s alibi was false and given for the reason that the truth would have incriminated him. It seems to me that the prosecutor was relying on the false alibi not so much as independent proof of the appellant’s guilt but rather as evidence supporting the identification by the victim of the appellant as her attacker. In the event that the jury were minded to think that the lies (assuming this to be proved) might be independent evidence of guilt, then that the statements were lies, were material and resulted from a consciousness of guilt must be proved beyond reasonable doubt: Edwards v The Queen (1993) 178 CLR 193, per Brennan J at 201-202 and (inferentially) per Deane, Dawson and Gaudron JJ at 210. On the other hand, where the telling of a lie as to a material fact is relied on as part of the evidence in the case, all of which is said to establish guilt beyond reasonable doubt, the lie does not have to be proved to any particular standard of proof: Edwards per Deane, Dawson & Gaudron JJ at 210; see, for a recent discussion in this Court where a false alibi was alleged, R v Ambrosi (2004) 144 A Crim R 67.

23 The learned trial judge did not accept the submission of the prosecutor on the question of lies and did not give any direction as to the way in which the jury should consider the issue.

24 It was contended on behalf of the appellant that the alleged lies identified by the Crown prosecutor as those for which an Edwards’ direction was necessary were insufficient to demonstrate a consciousness of guilt. This contention is unconvincing to my mind but it is not necessary to consider it. The limited lies case was identified only to the learned trial judge in submissions, as I have pointed out. It was not the way that the case was left to the jury. As the matter was left to the jury, it seems to me unarguable that, if the jury were minded so to find, the matters put by the Crown prosecutor provided an adequate basis for concluding that the appellant’s false alibi demonstrated a consciousness of guilt.

25 In this Court, the Crown submitted that Rule 4 of the Criminal Appeal Rules applies in respect of this ground of appeal and that leave should be refused. The rule is in the following terms –

“No direction, omission to direct, or decision as to the admission or rejection of evidence given by the Judge presiding at the trial, shall, without the leave of the Court, be allowed as a ground of appeal or an application for leave to appeal unless objection is taken at the trial to the direction, omission, or decision by the party appealing or applying for leave to appeal.”

26 It is worth repeating, I think, the observations of Mahoney JA in R v Jeffery (unreported, NSWCCA 16 December 1993) –

“It is proper to emphasise the importance of the principle embodied in Rule 4. In my opinion, this principle plays an important part in the criminal trial process. It is important that any objection to the summing up or that any defect or omission at the trial which can be cured or mitigated by steps taken at the trial, be raised at the time of the trial. The judge should be asked to, and should have the opportunity to, correct any error or deficiency of this kind.
…
Errors will occur and Rule 4 provides for them. But unless there be a convincing reason why the matter was not raised at the trial and unless the possibility of real injustice appears, an accused should be held to what was done by or for him at trial level. Not infrequently this Court is asked to act under rule 4 when the reason why the defect was not dealt with at the trial has not been established and where it is at least possible that there were tactical reasons why it was not. It is not easy for the court on appeal to satisfy itself that the reason why the matter was not raised was error rather than choice. In such circumstances, the court should be slow to act under rule 4. In the end, the court must exercise the power given to it by rule 4 according to the merits of the individual case. However, in my opinion, in exercising that power, the court should keep steadily in mind the function which rule 4 performs in the criminal trial process.”

These observations were approved in R v DH [2000] NSWCCA 360. If I may say so with respect, they are plainly right.

27 In the overwhelming majority of cases where the possible application of Rule 4 has been considered in this Court, the failure to seek the direction has been characterised as an unfortunate oversight by trial counsel which, it is contended, has led to a miscarriage of justice. In this case, however, there was no oversight by counsel for the defence. Plainly enough, he took a position which he thought was in his client’s interests. For tactical reasons, counsel urged on the learned trial judge a quite mistaken view of the law but it was a view for which it was in his client’s interests to contend. It is obvious that any analysis by the trial judge of the abduction story in the mode suggested by the Bench Book must inevitably have highlighted its absurdity and significantly damaged the defence case. I do not doubt that this is why defence counsel argued as he did. Of course, I do not suggest that counsel deliberately misled the trial judge. However, the fact is that he obtained the result which he intentionally sought and which could only have assisted his client.

28 It could scarcely be argued that the alleged lies did not relate to issues that were material to the offence charged or that they did not reveal a knowledge of the offence or some aspect of it. If it be accepted – as I think it was bound to be – that the abduction story was a lie, it is impossible to think of reasons in the particular circumstances that might have explained it apart from the consciousness of guilt. In particular, I think the jury would have dismissed out of hand the suggestion that the lie might have been told out of panic or to escape an unjust accusation or to protect another person or to avoid a consequence unrelated to the offence. In short, there was no possibility that the omitted direction could have assisted the appellant. To the contrary, there was every likelihood that it would have been adverse to him. In the circumstances, therefore, quite apart from the fact that it is impossible in the circumstances here to describe as a miscarriage of justice a course of action which counsel for the defence deliberately and emphatically sought in the interests of the appellant, there is no proper basis for granting leave under the Rule. Accordingly, I would refuse leave.

29 Even if leave to raise this ground of appeal were granted, it seems to me that the evidence of the appellant’s guilt is so overwhelming and the outcome of the trial so inevitable that it cannot be said that any miscarriage of justice occurred. Accordingly, even if the appellant were permitted to raise this ground of appeal, I would reject it under the proviso in s6(1) of the Criminal Appeal Act 1912.

The sentence appeal

30 As noted above, the appellant was sentenced to a total term of imprisonment of 12 years with a non-parole period of 8 years. This sentence was partially accumulated upon a sentence being served by the appellant for a similar offence, which had been imposed in the District Court on 8 September 2005. The earlier offence occurred on 31 August 2003 at Wellington involving the malicious infliction of grievous bodily harm on one John McKinnon with intent to do grievous bodily harm. The appellant had denied his guilt but was convicted by the jury. The victim was 72 years of age at the time of the offence and had become friendly with the victim in this case, who was the appellant’s ex-wife. The victim, who was attacked by the appellant at his house, suffered multiple lacerations on the right side of his skull, three of which ranged around 7 to 8 cm in length, a large laceration on the forehead, two black eyes, multiple lacerations on the back, the palms and fingers of his left hand. There were linear fractures of the left-hand side and right front of his skull. This savage and brutal attack took place about ten weeks before the attack on Vivian Catubig.

31 In dealing with the objective seriousness of the present case, the learned sentencing judge described the injuries to Ms Catubig which I have set out above and summarised the victim impact statement in which she said that she continued to experience numbness on the left side of her head for more than a year, still continued to have difficulty with hearing and understanding words, suffered chronic pain in her shoulder and persistently experiences the trauma with intrusive, distressing memories of the incident and nightmares. His Honour noted that a treating psychologist was of the opinion that the victim met the criteria for post-traumatic stress disorder. (No point is taken as to the evidentiary status of the victim impact statement, either on sentence or for the purposes of the present appeal.) The learned sentencing judge pointed to the following further matters as demonstrating the objective seriousness of the offence: it was a deliberate attack on a person made shortly after he had been arrested and charged with an earlier assault and was thus committed whilst he was on conditional liberty; the maximum term of imprisonment is 25 years; the attack occurred at night in the victim’s own house; there was no provocation of any kind; the appellant broke into the house and left her lying, bleeding and injured. This attack was a calculated, cold-blooded act of revenge. The learned sentencing judge stated that this “must be near the top of the range of seriousness and well at above…the median range”, a reference, I think, to the standard minimum non-parole period of 7 years.

32 The appellant’s counsel in this Court frankly and fairly acknowledged that little could be said by way of mitigation in the appellant’s case. It was submitted that, subjectively, the most significant feature was his age and it is pointed out that the sentences which he has serving will not see him released before he is aged 76 years. The only substantial point made on his behalf is that, whilst the offence was undoubtedly serious, the nature of the injuries suffered by the victim did not warrant his Honour’s description that the offence “must be near the top of the range of seriousness”. If one simply looked at the injuries themselves, they are far from the most serious form of grievous bodily harm which might be suffered and, plainly, to which the maximum term of imprisonment is directed. However, the injuries and their long-term consequences could not be regarded as less than serious. The objective gravity of the offence is not determined merely by considering the injuries. They were inflicted on a 57-year-old female victim following a breaking into her own home, using, in effect, a metal club. The attack was premeditated. The blows were repeated and extremely violent. It could not be thought other than that the appellant used as much violence as he could manage in the circumstances. The appellant was not remorseful or contrite and there is no reason to think that he does not represent a continuing danger.

33 It was once thought in some circles that domestic violence was somehow less serious than criminal violence inflicted in other circumstances. I do not agree. In many cases of domestic violence a distinguishing characteristic is the notion of the offender that he (and it is almost invariably a male) is entitled to act as he did pursuant to some perverted view of the rights of a male over a female with whom he is or was intimately connected. It is this characteristic of self-justification which requires particular emphasis to be given, in cases of this kind, to the elements of general and personal deterrence. In this case, the appellant had already been arrested for another extremely vicious attack on Mr Mackinnon for motives which were plainly related to those for which he attacked his ex-wife. The notion that this was some kind of temporary aberration is, I think, disproved by this concatenation of events. There was no a sudden loss of control arising out of circumstances beyond his capacity to deal with. It was a cold, calculating and brutal attack upon a helpless woman at night in her own home.

34 In my view, the characterisation of the offence by the learned sentencing judge as “near the top of the range of seriousness” related, not to the actual physical injuries or to the overall seriousness of the offence, but to the circumstances in which the injuries were inflicted. I think his Honour’s characterisation was correct.

35 Counsel for the appellant has taken the Court to a number of cases in this Court where sentences for offences under s33 of the Crimes Act 1900 were considered. Detailed analysis is unnecessary. None of those cases involved anything like the same objective and subjective factors present in this case and no statements as to the range of appropriate sentences were either made or could be deduced from those judgments.

36 In my view no error has been demonstrated in the reasoning of the learned sentencing judge in respect of the appellant’s sentence and I am unpersuaded that it was manifestly excessive. Accordingly, I would grant leave to appeal against sentence but otherwise dismiss the appeal.

37 HOWIE J: I agree with the orders proposed by Adams J and the reasons given.

38 PRICE J: I agree.

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